Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments, and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons.
History South Africa's first bill of rights was drafted primarily by Kader Asmal and Albie Sachs in 1988 from Asmal's home in Dublin, Ireland. The text was eventually contained in Chapter 3 of the transitional Constitution of 1993, which was drawn up as part of the negotiations to end apartheid. This "interim Bill of Rights", which came into force on 27 April 1994 (the date of the first non-racial election), was largely limited to civil and political rights (negative rights). The current Bill of Rights (; ; ; ; ; Southern Ndebele: ivikelamalungelo; ; ; ; ), which replaced the interim Bill of Rights on 4 February 1997 (the commencement date of the final Constitution), retained all of these rights and added a number of new positive economic, social and cultural rights.
Application of the Bill of Rights
The extent of the jurisdiction and application of the Bill of Rights is delineated by sections 7 and 8, the bill's opening sections, which are titled "Rights" and "Application" respectively. Section 7 entrenches the Bill of Rights as a "cornerstone of democracy in South Africa" and requires the state to "respect, protect, promote and fulfil the rights in the Bill of Rights", though it also notes that rights are subject to limitation .
Rights-bearers
Natural persons According to section 7(1), the Bill of Rights "enshrines the rights of all people in our country". The text of specific provisions grants most rights to "everyone", with the exception of some rights that are expressly restricted to smaller groups of beneficiaries (most usually to South African citizens). In the case of rights granted to "everyone", the Constitutional Court held in Khosa v Minister of Social Development that section 7(1) implies that the word "everyone" should be read literally, meaning that such rights are extended to foreign citizens inside South Africa and not only to citizens.Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03) ; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC).
Juristic persons Certain constitutional rights are extended to juristic persons as well as to natural persons. Section 8(4) provides explicitly that, "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." In Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution, the Constitutional Court heard that the extension of constitutional rights to juristic persons would diminish the rights of natural persons. Yet it rejected that objection in the following terms:Many "universally accepted fundamental rights" will be fully recognised only if afforded to juristic persons as well as natural persons. For example, freedom of speech, to be given proper effect, must be afforded to the media, which are often owned or controlled by juristic persons. While it is true that some rights are not appropriate to enjoyment by juristic persons, the text of s 8(4) specifically recognises this. The text also recognises that the nature of a juristic person may be taken into account by a court in determining whether a particular right is available to such person or not.Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).In respect of the first constitutional consideration, the nature of the right, certain rights – such as the right to life and right to bodily integrity – protect personal conditions that only natural persons possess. Conversely, certain rights are self-evidently applicable to juristic persons, such as the right of trade unions to organise. In the case of other rights, the situation is less clear and requires greater interpretation on a case-by-case basis. For example, considering the section 14 right to privacy, the Constitutional Court held in Investigating Directorate: Serious Economic Offences v Hyundai Motors that juristic persons "enjoy the right to privacy, although not to the same extent as natural persons", because, "Privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings".Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC). More recently, considering the section 10 right to dignity, the court held in Reddell v Mineral Sands Resources that juristic persons do not have a constitutional right to dignity, because, on a purposive reading, section 10 intended to protected the "intrinsic self-worth" of human beings.Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others 2023 (2) SA 404 (CC).
In respect of the nature of the juristic person who is asserted to bear a constitutional right, existing case law suggests that the objectives or purpose of the juristic person are a decisive factor, partly because they may reveal a relationship between the juristic person and the natural persons who "stand behind" it and use it for the collective exercise of their fundamental rights. In FNB v Commissioner for the South African Revenue Services, which affirmed that private companies have the property rights protected in section 25, the Constitutional Court was aware that, in almost all cases, shares in private companies vest "ultimately" in natural persons, and, "The property rights of natural persons can only be fully and properly realised if such rights are afforded to companies as well as to natural persons".First National Bank of SA Limited v Commissioner for the South African Revenue Services and Another; First National Bank of SA LImited v Minister of Finance 2002 (4) SA 768 (CC). Conversely, in SITA v Gijima, the Constitutional Court held that state entities are not beneficiaries of the section 33 right to just administrative action, because rights are necessarily correlative and the state is itself the bearer of the obligation imposed by that right.SITA v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC).
Waiver Per Iain Currie and Johan de Waal, individuals may waive the right to exercise some constitutional rights: such waiver does not ensure the validity of otherwise unconstitutional conduct, but it consists in the individual's commitment not to invoke the constitutionality invalidity of that conduct. Currie and de Waal suggest the effect of the waiver depends on the nature and purpose of the right in question – in contrast to the negative liberties, the rights to dignity and life may not be waived – but that, in all cases, courts may consider waiver (alongside victim responsibility more generally) in assessing and remedying rights violations.
Duty-bearers
Vertical effect Affirming the value of constitutional supremacy entrenched in section 2 of the Constitution, section 8(1) holds that, "The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state." As confirmed by the Constitutional Court in Pharmaceutical Manufacturers Association: In re Ex Parte President, this provision, read with enabling provisions elsewhere in the Constitution, is the basis of a wide-ranging system of judicial review in South Africa. Section 7(1) additionally binds the state to respect and fulfil constitutional rights. Thus it is well established in the Constitution that the Bill of Rights has vertical effect, with the rights of private persons creating enforceable obligations on the state.
Horizontal effect Section 8 also allows that the Bill of Rights has horizontal effect, insofar as section 8(2) provides that, "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." Section 8(3) requires that, when a court applies the Bill of Rights in this way, it may develop the common law accordingly. Khumalo v Holomisa and Ramakatsa v Magashule are prominent cases involving the horizontal application of specific constitutional rights to private disputes. In Khumalo, the court found that "direct horizontal application" was necessitated by "the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state".Khumalo and Others v Holomisa (CCT53/01) ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771. In addition to these factors, Currie and de Waal suggest that the purpose of a given provision may be important in determining whether it is applicable to private conduct or not, and certain rights – such as the section 12(1) right to freedom from violence and the section 9(4) right to freedom from unfair discrimination – are explicitly binding on private conduct.
Enumerated rights
Equality
The first right protected by the Bill of Rights is the right to equality, located in section 9 of the Constitution, which contains strong provisions on legal and social equality and explicit prohibitions against unfair discrimination. At the broadest level, section 9(1) provides for universal equality before the law. Section 9(2) expands on this provision, stipulating that "Equality includes the full and equal enjoyment of all rights and freedoms." However, section 9(2) also provides that, "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." Section 9(2) was applied to uphold affirmative action measures in Minister of Finance v Van Heerden and South African Police Service v Barnard.
Subsections 9(3) to 9(5) deal expressly with unfair discrimination. Discriminatory conduct or legislation is treated differently according to the grounds for the discrimination in question, and, in particular, according to whether it constitutes discrimination on the basis of one of the "listed grounds" enumerated explicitly in section 9(3). These so-called listed grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Unfair discrimination on a listed ground is impermissible, regardless of whether it is direct or indirect, and regardless of whether it is carried out by the state (in contravention of section 9(3)) or by a person (in contravention of section 9(4)). Moreover, discrimination on a listed ground is presumed to be unfair: in terms of section 9(5), such discrimination is "unfair unless it is established that the discrimination is fair". On the other hand, in cases of discrimination on the basis of any other, non-listed ground, the constitutional threshold is higher, because only section 9(3) is applicable: under that provision, the state "may not unfairly discriminate directly or indirectly against anyone" on any ground, but, in the case of non-listed grounds, the discrimination must be shown to be unfair.