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The Bill Proposed by the South African Law Commission

Article 1: Fundamental rights.

The rights set forth in this Bill are fundamental rights to which every individual and, where applicable, also every juristic person in South Africa is entitled in relation to legislative and governmental bodies, and save as otherwise provided in this Bill those rights shall not be circumscribed, limited, suspended or infringed by any legislation or executive or administrative act of any nature.

Article 2: The right to life.

Everyone has the right to the protection of his or her life. Article 3: Equality before the law.

(a) Everyone has the right to equality before the law, which means, inter alia, that save as permitted in this Article, no legislation or executive or administrative act shall directly or indirectly favour or prejudice any person on the grounds of his or her race, colour, sex, religion, ethnic origin, social class, birth, political and other views or disabilities or other natural characteristics.

(b) To this end the highest legislative body may by legislation of general force and effect introduce such programmes of affirmative action and vote such funds therefor as may reasonably be necessary to ensure that through education and training, financing programmes and employment all citizens have equal opportunities of developing and realising their natural talents and potential to the full,

(c) The provisions of Sub-Article (a) hereof shall not be construed as making it compulsory for any female person to perform military service.

Article 4: The right to mental and physical integrity.

(a) Everyone has the right to the protection of his or her mental and physical integrity.

(b) No one shall be subjected to mental or physical torture, assault or inhuman or degrading treatment.

(c) No exceptional circumstances whatever, whether state of war or threat of war, internal political instability or any other public emergency or any order given by a superior officer or by any person holding office in government, shall serve as justification for acts mentioned in paragraph (b).

Article 5: Personal liberty and security.

Everyone has the right to his or her personal liberty and security, which means, inter alia, that no one shall be deprived of his or her liberty save in the following cases and in accordance with a prescribed procedure generally in force by which the fundamental right to his or her mental and physical integrity is not denied:

(a) Lawful arrest or detention for the purpose of bringing a person before a court of law on the ground of a reasonable suspicion, which shall be justiciable by a court, that he or she has committed or is committing or is attempting to commit a crime;

(b) lawful detention pursuant upon conviction by a court of law or failure to comply with a lawful order of the court;

(d) lawful detention of a person who is mentally ill or a person addicted to narcotic or addictive substances with a view to his or her admission, in accordance with prescribed procedure, to an institution or rehabilitation centre;

(e) lawful detention for the prevention of any person's unauthorised presence or sojourn in South Africa or with a view to his or her extradition or deportation in accordance with prescribed procedure,

Article 6: The rights of an arrested person.

Everyone who is arrested has the right -

(a) to be detained and to be fed under conditions consonant with human dignity and to receive the necessary medical treatment;

(b) to be informed as soon as possible in a language which he or she understands of the reason for his or her detention and of any charge against him or her;

(c) to be informed as soon as possible in a language which he or she understands that he or she has the right to remain silent and the right to refrain from making any statement and to be warned of the consequences of making a statement;

(d) within a reasonable period of time, but not later than 48 hours or the first court day thereafter, to be brought before a court of law and to be charged in writing or informed in writing of the reason for his or her detention, failing which he or she shall be entitled to be released from detention unless on good cause shown a court of law orders further detention;

(e) to be tried by a court of law within a reasonable time after arrest and pending such trial to be released, which release may be subject to ball or guarantees to appear at the trial, unless on good cause shown a court of law orders further detention;

(f) to oommunloate and to consult with a legal practitioner and a medical practitioner of his or her choice;

(g) to communicate with and to be visited by his or her spouse, family, next of kin, religious counsellor or friends, unless a court of law otherwise orders.

Article 7: The rights of an accused person.

Every accused person has the right -

(a) not to be sentenced or punished unless he or she has had a fair and public trial before a court of law in accordance with the rules of procedure and evidence generally in force;

(b) to be presumed innocent until the contrary is proved by the state or other prosecutor;

(d) not to be convicted or sentenced on the ground of evidence so obtained or presented as to violate any of the rights under this Bill of the accused person or of the witness concerned or of any other person, unless the court, in the light of all the circumstances and in the public interest, otherwise orders;

(e) to be represented by a legal practitioner;

(f) to be informed by the presiding officer -

Ø. (i) of his or her right to be represented by a legal practitioner;

Ø. (ii) of the institutions which he or she may approach for legal assistance;

and to be given a resonable opportunity to endeavour to obtain legal assistance: Provided that failure or neglect so to inform an accused person or to give him or her such opportunity shall not result in the setting aside of the proceedings unless on appeal or review a court finds that justice was not done;

(g) not to be sentenced to an inhuman or degrading punishment;

(h) not to be convicted of a crime in respect of any act or omission which at the time when it was committed was not a crime and not to be given a sentence more severe than that which was by law applicable at the time when the crime was committed;

(i) not to be convicted of any crime of which he or she has previously been convicted or acquitted, save in the course of appeal or review proceedings relating to that conviction or acquittal;

(j) to have recourse, on appeal or review, to a higher court than the court of first instance: Provided that legislation may prescribe that leave to appeal shall be first obtained;

(k) to be informed in a language which he or she understands of the reasons for his or her conviction and sentence;

(l) to be tried in a language which he or she understands or, falling this, to have the proceedings interpreted to him or her;

(m) to be sentenced within a reasonable time after conviction.

Article 8: Rights of persons convicted of a crime.

Everyone who has been convicted of a crime and who in accordance with a sentence of a court of law is serving a term of imprisonment has the right -

(a) to be detained and to be fed under conditions consonant with human dignity and to receive the necessary medical treatment;

(b) to be given the opportunity to develop and to rehabilitate;

Article 9: Good name and reputation and dignity.

(a) Everyone has the right to the protection of his or her good name and reputation.

(b) Everyone has the right to the recognition and protection of his or her dignity.

Article 10: Privacy.

Everyone has the right to the proteotion of his or her privacy, which means, inter ails, that his or her property or place of residence or employment shall ndt be entered, that he or she shall not be searched, that his or her property or possessions shall not be seized and that there shall be no interference with or interception of his or her correspondence or other forms of communication.

Article 11: Forced labour.

Everyone has the right not to be subjected to forced labour: Provided that legislation may provide for -

(a) such labour as may reasonably be prescribed to be performed during detention pursuant to a sentence of imprisonment imposed by a court of law; and

(b) reasonable military or civilian national service so that, save during a state of war or the duration of a proclaimed state of emergency, each individual shall have a choice on grounds of religious or conscientious conviction between military and civilian national service of equal duration.

Article 12: Freedom of speech.

Everyone has the right to freedom of speech and other forms of expression and to obtain and disseminate information.

Article 13: Science and art.

Everyone has the right freely to engage in science and art. Article 14: Legal competence.

Everyone has the right to perform juristlo acts and thereby to acquire rights and to incur obligations.

Article 15: Freedom of movement.

Everyone has the right to move freely within South Afrioa and to reside, to work or to engage in any lawful business, occupation, trade or like activity at any place therein.

Article 18: Passports, citizenship, exile or expulsion and emigration.

Every citizen has the right -

(a) not to be denied a passport or deprived thereof;

(b) not to be deprived of his or her South African citizenship;

(d) not to be prevented from emigrating.

Article 17: Freedom of association.

Everyone has the right to freedom of assoolatlon, which means, inter spa, that no legislation or executive or administrative sot shall -

(a) debar or restrain individuals or groups from associating with other individuals or groups;

(b) compel individuals or groups to associate with other individuals or groups;

(c) directly or indirectly make available to an individual who or a group which on the ground of race or colour refuses to associate with any other individual or group, any public) or state funds to foster the creation or maintenance of such discrimination or exclusion.

Article 18: Religious, linguistic and cultural rights.

Everyone has the right, individually or in community with others, freely to practise the religion and culture and freely to use the language of his or her choice, so that there shall be no prejudice to or favouring of anyone on account of his or her religion, culture or language.

Article 19: Family rights.

Everyone has the right to protection of the integrity of his or her family and freedom to enter into marriage with any person of his or her choice, which includes the choice of entering into a monogamous marriage and having entered into that marriage the maintenance of its monogamous character.

Article 20: Rights of children.

(a) Every child has the right to live with his or her parents and to be cared for and brought up by them, unless the interests of the child call for some other arrangement.

(b) Every child has the right to be cared for by the state if there are no relatives with a duty of support towards the child or other persons who are willing or able to care for the child.

(d) Everychild has the right-not to be compelled to perform labour or render services harmfulto his or her physical or mental health, upbringing or .education or amounting to economic exploitation.

(e) Every child has the right not to be compelled to perform labour or render services for the benefit of the employer of either of his or her parents or any of his or her relatives,

(f) in all legislative, executive and administrative proceedings the interests of the child shall in all circumstances be paramount.

Article 21: Public education and training.

Everyone has the right to freedom of choice with regard to the available public educational and training institutions and fields of study: Provided that -

(a) free state education shall be provided up to the end of the primary school phase;

(b) no pupil or student shall on educationally irrelevant grounds be excluded from the available public education opportunities from which he or she may benefit with a view to the acquisition of knowledge, skills and values;

(c) no state school or state-aided school or institution for education and training shall refuse to admit a pupil or student merely on the ground of his or her race, colour, religion or ethnic origin;

(d) this Article shall not preclude the establishment and maintenance of private schools or institutions in which no state aid is involved, and such schools or institutions shall have autonomy of choice as to whom they admit;

(e) this Article shall not preclude the granting of state funds in aid of private schools or private institutions which do not discriminate against pupils or students on the grounds of their race, colour or ethnic descent;

(f) every pupil is entitled, in so far as this is attainable, to be taught all school subjects through the medium of his or her mother tongue or some other language as a language of choice from the first to the last school year.

Article 22: Right to property.

(a) Everyone has the right individually or jointly with others to be or to become the owner of private property or to have a real right in private property or to acquire such right or to be or to become entitled to any other right.

(b) Legislation may authorise the expropriation of any property or other right in the public interest and against payment of just compensation, which in the event of a dispute shall be determined by a court of law.

Article 23: Economic enterprise.

Everyone has the right freely and on an equal footing to engage in economic enterprise, which right includes the capacity to establish, manage and maintain commercial undertakings, to acquire property and procure means of production and to offer or accept employment against remuneration.

Article 24: Political rights.

Every citizen has the right -

(a) freely to form and to be a member of political parties: Provided that no one shall be compelled to be a member of a political party or to take part in the activities thereof;

(b) to give expression to his or her political convictions in a peaceful manner; and

Article 25: Assemblies, demonstrations and petitions.

Everyone has the right to assembly and to demonstrate peacefully and unarmed and to canvass for and present petitions.

Article 26: Franchise.

Every citizen over the age of eighteen years has the right to exercise the vote on a basis of equality in accordance with the Constitution in respect of legislative and other institutions and other public offices at regular and periodical elections and at referendums.

Article 27: Social security.

Everyone has the right -

(a) to form employees' or employers' organisations and, if he or she qualifies therefor, to become a member of any such organisation of his or her choice or not to become a member thereof;

(b) to obtain employment in accordance with the principles of supply and demand and accordingly to make use of the available opportunities of employment;

(c) lawfully to make provision for any costs that may arise from his or her mental or physical illness and that of his or her dependants, as well as for the costs of pregnancy, loss as a result of unemployment, disability, accident or age;

(d) lawfully to make provision for the maintenance of a reason-able standard of living for himself or herself and his or her dependants;

(e) lawfully to provide for his or her proper education and training and that of his or her dependants with a view to the development of each to his or her full potential;

(f) to claim the available state assistance to provide for his or her own necessary subsistence and medical needs where he or she is unable to provide for such needs by reason of physical or mental illness or disability and where there is no person who may by virtue of a duty of support be compelled to provide for such needs.

Article 28: Employees' rights.

Every. employee has the right

(a) to work under safe, acceptable and hygienic. conditions;

(b) to work reasonable hours;

(d) to receive equal payment with other employees for corresponding production of an acceptable quality, due regard being had to such aspects as qualifications, experience, the means of the employer and the forces of supply and demand in the labour field;

(e) to the protection of hie or her physical and mental welt-being;

(f) to make provision against the risk of unemployment and aooidents during the course of employment;

(g) to take part in collective bargaining;

(h) to take part in strike and to withhold labour;

(i) not to be subjeot to unfair labour practices.

Article 29: Employers' rights.

Every employer has the right -

(a) to offer employment and to engage employees in accordance with his or her needs, due regard being had to the fitness, qualifications and level of training and competence of the employee;

(b) to require of an employee adequate production of an acceptable quality and to look out labour;

(c) to terminate the service of an employee in accordance with the common law or in accordance with his or her contract of employment with the empooyee, or in accordance with any relevant enactment, whichever of these or whichever combination thereof applies;

(d) of his or her free will to associate or to forma group with others, or not to do so;

(e) in accordance with the law to apply the principle of "no work, no pay";

(f) to run his or her business, particularly with a view to its economic viability and continued existence;

(g) where necessary, and in his or her own discretion, to make use of alternative labour to maintain production or service;

(h) to negotiate and to bargain collectively or individually;

(i) to be protected from unfair labour practices such as intimidation and victimisation.

Article 30: Environmental rights.

Everyone has the right not to be exposed to an environment which is dangerous to human health or well-being or which is seriously detrimental thereto and has the right to the conservation and protection of that environment.

Article 31: Review of administrative acts and subordinate legislation.

Everyone has the right to have civil disputes settled by a court of law and to have recourse to the Supreme Court to review, by virtue of its inherent jurisdiction, any subordinate legislation and any executive act and any administrative act.

Article 32: Rules of natural justice.

Everyone has the right to have the rules of natural ; Justice applied in administrative proceedings and actions in which, on the grounds of findings of fact and of law, the rights or legitimate expectations of an individual or a group are infringed or likely to be infringed, and in such cases every person having an interest in the matter has the right to be furnished on demand with the reasons for a decision.

Article 33: Application of South African law.

Everyone has the right to have South African law, including the rules of South African Private international Law, applied in all proceedings before a court of law: Provided that legislation may provide for the applloatlon of the choice of legal rules relating to and judicial notice of the law of indigenous groups or the religious law of religious groups: Provided further that in civil proceedings suoh indigenous or religious law shall be applied only if all the parties agree thereto.

Article 34: Circumscription and suspension.

(1) Circumscription with the exception of the rights, procedures and institutions referred to in Articles 1; 3; 4(b) and (c); 5; 6(a) to (e) inclusive; 7; 8; 9(b); 11; 16(c) and (d); 17; 18; 19; 20; 21; 22(b); 24(a) and (b); 31; 32; 34; 35; 36; 37; 39; 40 and 41, the rights, procedures and institutions set forth in this Bill may be circumscribed by legislation of general force and effect: Provided that such circumscription -

Ø. (a) shati be permissible only in so far as it is reasonably necessary for considerations of state security, the public order and interest, good morals, public health, the administration of justice, public administration, or the rights of others or for the prevention or combating of disorder and crime; and

Ø. (b) shall not derogate from the general subtance of the right in question.

(2) Suspension

Ø. (a) The rights set forth in this Bill may be suspended only in accordance with enabling legislation relating to a state of emergency, suoh legislation to be passed by the highest legislative body and to be of temporary operation.

Ø. (b) Where such suspension is so effected the following requirements shall be complied with:

Ø. (i) A state of emergency shall be proclaimed only where the security or continued existence of the state is threatened by war, invasion or general insurrection and the proclaiming of a state of emergency is reasonably necessary to bring about peace or order.

Ø. (ii) A state of emergency shall not be proclaimed for a period exceeding six months from a given time.

Ø. (iii) The said legislation relating to the proclamation of a state of emergency shall provide that, within three weeks after the proclamation of the state of emergency, not less than two-thirds of the directly elected members of the highest legislative body shall ratify the proclamation of the state of emergency and the rules and regulations that will apply during the state of emergency.

Ø. (iv) Legislation relating to the state of emergency or regulations made thereunder shall not permit, authorise or sanction the cruel or inhuman treatment of persons, the retroactive creation of crimes, detention without trial, indemnity of the state or any officer of the state for acts done during the state of emergenoyorthe subjeotive discretionary use of force by any officer of the state or government: Provided that -

Ø. (aa) the foregoing notwithstanding , Articles 1; 2; 3; 4; 5; 6(a), (b), (c), (e), (f) and (g); 7; 8; 9; 11; 14; 16(b) and (c); 17(b) and (a); 18; 19; 20; 21; 22; 24; 26; 31; 32; 33; 34; 35; 36; 37; 39(b); 40 and 41 shall remain of force and effect and shall not be suspended;

Ø. (bb) any person detained under emergency measures shall within seven days or on the first succeeding court day thereafter be brought before a court of law and be charged in writing or informed in writing of the reason for his or her detention, falling which he or she shall be entitled to be released from detention unless on good cause shown a court of law orders further detention.

Article 35: Testing right of the courts.

(a) Any law, enactment or regulation of whatever nature of any legislative body in South Africa or any executive or administrative act which violates any of the rights set forth in this Bill or which exceeds any of the circumscriptions or suspensions herein permitted shall to the extent of such violation or excess be invalid.

(b) Any court in which an alleged violation or excess as referred to in paragraph (a) hereof is raised shall be competent to prounounce judgment thereon.

(c) The Constitutional Chamber of the Appellate Division shall hear all appeals before the Appellate Division in which, in the opinion of the Chief Justice, the only or main issue or issues arise from the provinslons of the Bill of Rights, the other provisions of the Constitution Act, and Constitution in general and executive or adminstrative acts. The Chief Justice shall therefore place all appeals to the Appellate Division on the roll of either the General Chamber or the Constitutional Chamber.

(d) Any individual juristic person or association has the oapaotly on behalf of himself or herself or itself or any other individual or any group or class of persons to test, by virtue of the provisions of this Bill, the validity of any legislative, executive or administrative act by applying to the appropriate Division of the Supreme Court for a declaratory order notwithstanding the fact that the applicant is able to prove only an indirect interest or indirect prejudice.

Article 36: Human Rights Commission.

(a) There shall be a permanent, full-time Human Rights Commission under the chairmanship of a Judge of Appeal or retired Judge of Appeal which shall -

Ø. (i) assume responsibility for and. co-ordinate education and information in respect of democratic values and human rights in South Africa and initiate educational programmes and information projects;

Ø. (ii) fulfil an advisory function in respect of -

Ø. (aa) any question as to the consistency with this Bill of proposed legislation at any level of government;

Ø. (bb) any question as to the consistency with this Bill of any existing legislation;

Ø. (cc) any question as to any need that may exist for the extension of the protection of human rights and shall make recommendations to the legislature and the executive and administrative authorities regarding additional measures of any nature whatever;

Ø. (iii) inquire, on its own initiative or on the grounds of complaints lodged, into alleged violations of human rights and publicly and in writing report thereon to the highest legislative body.

(b) Further provision shall be made in the Constitution for the composition and additional functions of the said Commission.

Article 37: Ombudsman.

There shall be a permanent full-time Ombudsman who shall on his or her own initiative or in response to representations made -

investigate complaints of maladministration by executive or administrative bodies or persons, including the violation of human rights as contained in this Bill;

Ø. (ii) investigate complaints against state institutions or administrative bodies or officers or employees thereof regarding unfair, unjust and discourteous conduct which infringes or has infringed human rights as contained in this Bill;

Ø. (iii) act on behalf of groups of individuals, including patients to hospitals, taxpayers, pensioners, prisoners, children and other groups, whose individual rights have been prejudiced or are likely to be prejudiced by a specific act or acts by the executive authority or the administration;

Ø. (iv) generally watch over the upholding and respecting of human rights by the executive and administrative bodies and officers, and himself or herself take the initiative in protecting the human rights set forth in this Bill;

Ø. (v) institute enquiry as to whether or not acts done by the executive or administrative authorities under powers conferred by subordinate or delegated legislation and which appear to infringe the human rights set forth in this Bill are unconstitutional;

Ø. (vi) through investigation, mediation, conciliation and negotiation endeavour to reach a settlement between the complainant and the body or person complained of, which may include obtaining an apology, revoking a decision or ruling, reconsidering the complainant's application or request, or effecting a change in policy or practice;

Ø. (vii) co-operate with the Human Rights Commission with a view to attaining the alms and objects of the Commission;

Ø. (viii) in respect of every investigation carried out by him or her report in writing, at least once each year, to the highest legislative body concerning his or her findings relating to the infringement of human rights and the steps and actions taken or recommended by him or her, such report to be published for general information simultaneously with submission thereof to that legislative body:

(b) Further provision ahail be made in the Constitution for the functions of the Ombudsman.

Article 38: Positive promotion of all human rights.

Apart from the duty of all legislative and executive and administrative institutions of the state not to infringe the fundamental rights set forth in this Bill, all the said institutions shall use those fundamental rights as guidelines in instituting and carrying out legislative programmes and executive and administrative planning and action for the promotion of those rights.

Article 39: Operation in respect of third parties.

(a) The rights set forth in this Bill shall be exercised by every individual in such a manner as will not infringe the rights granted under this Bill to any other individual.

(b) In the interpretation of all legislation, including legislation regulating only the relations between persons, the court shall have regard to the provisions of this Bill and shall as far as may be appropriate construe the said legislation in a manner consonant with the values enshrined in this Bill.

Article 40: Application of bill.

The provisions of this Bill shall apply to all existing and future legislation and to all executive and administrative acts done after the date of the coming into operation of this Bill.

Article 41: Amendment or repeal.

This Bill, including this Article, shall not be amended or repealed save by a two-thirds majority of the votes of all the directly elected members entitled to vote in the highest legislative body, ratified by the same majority of votes cast in a referendum in which everyone entitled to vote in an election for the said body may oast his or her vote.

The O’Malley Archives

The Bill Proposed by the South African Law Commission