SACON96.HTM
PREAMBLE
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution
as the supreme law of the Republic so as to -
Heal the divisions of the past and 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;
Improve the quality of life of all citizens and free the potential of each person;
Build a united and democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God sen Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
Chapter 1
Founding Provisions
Republic of South Africa
1. The Republic of South Africa is one sovereign democratic state founded on the
following values:
(a) Human dignity, the achievement of equality and advancement of human rights
and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections,
and a multi-party system of democratic government, to ensure accountability,
responsiveness and openness.
Supremacy of Constitution
2. This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the duties imposed by it must be performed.
Citizenship
3. (1) There is a common South African citizenship.
(2) All citizens are -
(a) equally entitled to the rights, privileges and benefits of citizenship; and
(b) equally subject to the duties and responsibilities of citizenship.
(3) National legislation must provide for the acquisition, loss and restoration
of citizenship.
National anthem
4. The national anthem of the Republic is determined by the President by
proclamation.
National flag
5. The national flag of the Republic is black, gold, green, white, red and blue,
as described and sketched in Schedule 1.
Languages
6. (1) The official languages of the Republic are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and
isiZulu.
(2) Recognising the historically diminished use and status of the indigenous
languages of our people, the state must take practical and positive measures to
elevate the status and advance the use of these languages.
(3) National and provincial governments may use particular official languages for
the purposes of government, taking into account usage, practicality, expense,
regional circumstances, and the balance of the needs and preferences of the
population as a whole or in respective provinces; provided that no national or
provincial government may use only one official language. Municipalities must
take into consideration the language usage and preferences of their residents.
(4) National and provincial governments, by legislative and other measures, must
regulate and monitor the use by those governments of official languages. Without
detracting from the provisions of subsection (2), all official languages must
enjoy parity of esteem and must be treated equitably.
(5) The Pan South African Language Board must -
(a) promote and create conditions for the development and use of
(i) all official languages;
(ii) the Khoi, Nama and San languages; and
(iii) sign language.
(b) promote and ensure respect for languages, including German, Greek, Gujarati,
Hindi, Portuguese, Tamil, Telugu, Urdu, and others commonly used by communities
in South Africa, and Arabic, Hebrew, Sanskrit and others used for religious
purposes.
Chapter 2
Bill of Rights
Rights
7. (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.
Application
8. (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 natural and juristic persons if, and
to the extent that, it is applicable, taking into account the nature of the
right and of any duty imposed by the right.
(3) In applying the provisions of the Bill of Rights to natural and juristic
persons in terms of subsection (2), a court -
(a) in order to give effect to a right in the Bill, must apply, or where
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) Juristic persons are entitled to the rights in the Bill of Rights to the
extent required by the nature of the rights and of the juristic persons.
Equality
9. (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.
Human dignity
10. Everyone has inherent dignity and the right to have their dignity respected
and protected.
Life
11. Everyone has the right to life.
Freedom and security of the person
12. (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 both public and 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.
Slavery, servitude and forced labour
13. No one may be subjected to slavery, servitude or forced labour.
Privacy
14. 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.
Freedom of religion, belief and opinion
15. (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.
Freedom of expression
16. (1) Everyone has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
(b) freedom to receive and impart information and 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.
Assembly, demonstration, picket and petition
17. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket, and to present petitions.
Freedom of association
18. Everyone has the right to freedom of association.
Political rights
19. (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.
Citizenship
20. No citizen may be deprived of citizenship.
Freedom of movement and residence
21. (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.
Freedom of trade, occupation and profession
22. 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.
Labour relations
23. (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;
(c) to bargain collectively; and
(d) to form and join a federation.
(5) The provisions of the Bill of Rights do not prevent legislation recognising
union security arrangements contained in collective agreements.
Environment
24. 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.
Property
25. (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 public purposes or in the public interest; and
(b) subject to compensation, the amount, timing, and manner of payment, of which
must be agreed, or decided or approved by a court.
(3) The amount, timing, and manner of payment, of compensation must be just and
equitable, reflecting an equitable balance between the public interest and the
interests of those affected, having regard to all relevant factors, 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 subsections (6).
Housing
26. (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.
Health care, food, water, and social security
27. (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.
Children
28. (1) Every child has the right -
(a) to a name and a nationality from birth;
(b) to family care, parental care, or 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 interest is of paramount importance in every matter concerning
the child.
(3) In this section, "child" means a person under the age of 18 years.
Education
29. (1) Everyone has the right -
(a) to a basic education, including adult basic education; and
(b) to further education, which the state must take reasonable measures to 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 law and
practice.
(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.
Language and culture
30. 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.
Cultural, religious and linguistic communities
31. (1) Persons belonging to a cultural, religious or linguistic community may
not be denied the right, with other members of their community, to -
(a) enjoy their culture, practise their religion and use their language; and
(b) form, join and maintain cultural, religious and linguistic associations and
other organs of civil society.
(2) This right may not be exercised in a manner inconsistent with any provision
of the Bill of Rights.
Access to information
32. (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.
Just administrative action
33. (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.
Access to courts
34. Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing in a court or, where
appropriate, another independent and impartial forum.
Arrested, detained and accused persons
35. (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 48 hours after the arrest, but if that period expires outside ordinary
court hours, to be brought before a court on the first court day after the end
of that period;
(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 has a right to a fair trial, which includes the right -
(a) to be informed of the charge with sufficient details to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial in 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;
(g) to have a legal practitioner assigned to the accused by the state, and at
state expense, if substantial injustice would otherwise result, and to be
informed of this right;
(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.
Limitation of rights
36. (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.
States of emergency
37. (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 from the date of the declaration; and
(b) for no more than 21 days from the date of the declaration, unless the
National Assembly resolves to extend the declaration. The National 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
supported by a majority of the members of the National Assembly. Any subsequent
extension must be by a resolution supported by 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 declared 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 that table.
Table of Non-Derogable Rights
Section Number
9
Section Title
Equality
Extent to which the right is non-derogable
With respect to race and sex only
Section Number
10
Section Title
Human Dignity
Extent to which the right is non-derogable
Entirely
Section Number
11
Section Title
Life
Extent to which the right is non-derogable
Entirely
Section Number
12
Section Title
Freedom and Security of the person
Extent to which the right is non-derogable
With respect to subsection (1)(d), and (e) and (2)(c) only
Section Number
13
Section Title
Slavery, servitude and forced labour
Extent to which the right is non-derogable
With respect to slavery and servitude only
Section Number
28
Section Title
Children
Extent to which the right is non-derogable
With respect to subsection (1)(d), (1)(e) and to the rights in subparagraphs
(1)(g)(i) and (ii) only
Section Number
35
Section Title
Arrested, detained and accused persons
Extent to which the right is non-derogable
With respect to the following subsections only:
(1)(a), (b) and (c)
(2)(d)
(3)(a), (b), (c), (e), (f), (g), (h), (i), (j), (k), (l), (m) and (o)
(4)
(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 told 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 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 any time more than 10 days after the previous
review, and in either case, the court must release the detainee unless it is
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 citizens of the
Republic 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 those persons.
Enforcement of rights
38. 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 a class of
persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
Interpretation of Bill of Rights
39. (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.