Frequently asked questions

The following questions will provide clarity on some of the legal terms you will encounter throughout this WiseUp.

Question: Is there any legal provision that prohibits smoking in the presence of children?

Answer:  > The human rights of children, which includes the best interests of children, are of paramount importance in our society and are protected by section 28 of the South African Constitution.

>     What will be considered as being in the best interests of a child is quite a wide topic that includes every aspect that affects children's lives. For example, the health effects that smoking can have on children.

>     The Tobacco Products Control Act 83 of 1993 (“Tobacco Act”) provides for some limitations on where a person is allowed to smoke in order to protect children.

>     For example, the Tobacco Act provides that no person may smoke any tobacco product in:

-      a public place;

-      any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place; or

-      any motor vehicle when a child under the age of 12 years is present in that vehicle.

>     The Tobacco Act further provides that no person may smoke any tobacco product in a private dwelling used for any commercial childcare activity, schooling or tutoring.

>     A private dwelling includes, for example, any room, apartment or building which is occupied or used as a residence.

>     These limitations provided for in law are aimed at protecting children's human rights. Not just in respect of what would be in their best interests, but also in respect of their human right to a healthy environment (section 24 of the Constitution).

Question: Does loadshedding infringe on any human rights?

Answer: >  The right to electricity is not in itself a human right contained in the Constitution. However, a lack of access to electricity can infringe on a person's other human rights. For example, loadshedding may infringe on a person's rights to trade, access to information, health care and social security. 

>     There are numerous arguments on this topic, however, municipalities must provide the public with basic municipal services within its available resources and in a sustainable manner. In Joseph v City of Johannesburg 2010 4 SA 55 (CC), the Constitutional Court confirmed that South Africans are entitled to electricity as a basic municipal right.

>     On the flip side of the coin, the legislation provides that the interests and needs of present and future electricity customers are safeguarded and met (in consideration of the efficiency and long-term sustainability of the electricity supply industry).

>     In light of the above, there is a fine balance that must be maintained between providing the public with electricity as a basic municipal right (together with the protection of human rights) and the long-term sustainability of the electricity supply industry.

>     Even though it might be possible that loadshedding can impact on a person's human rights, it is also important to remember that the Constitution allows for human rights to be infringed to a certain extent. Section 36 of the Constitution provides for the limitation of human rights if that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation of human rights should also be subject to any less restrictive measures that are available (for example, that the electricity outages are limited to certain time periods and as per a schedule).

>     Although there are arguments on either side in respect of whether or not loadshedding infringes on a person's human rights, it must still be formally tested under the law.

Question: Do you have a right to own, use and enjoy property?

Answer: > The right to own property is protected by section 25 of the Constitution which provides that no one may be deprived of property except in terms of a law of general application. It further provides that property can be expropriated subject to compensation if it is in the public interest to do so.

>     Apart from this right to own property, a person also has a right to the use and enjoyment of the property.

>     These rights are sometimes subject to limitations set out in legislation and common law. For example, if you live on a farm and your neighbour needs to pass through your land to get to their land, the use of your property can be limited by registering a “right of way” on the title deed. This right of way allows your neighbour to use part of your property to access their own property.

>     Another example would be in townhouse complexes or apartment buildings. Body corporate rules limit these rights by not allowing pets, or not allowing noise after a certain time of day and so on.

Question: What can a person do if his/her human rights are infringed?

Answer: > All rights that are protected by the Constitution apply to all people in South Africa subject to certain limitations. They must all be in line with the democratic values of human dignity, equality and freedom.

>     Every person has the right to approach a court to resolve any dispute s/he may have with another person or entity (such as a company) through the application of the law. This is known as the right to access courts.

>     This right also includes having the dispute resolved in a fair public hearing in court or other tribunal or forum, such as an Ombudsman.

>     A person who feels that his/her human rights have been violated can do the following:

-      Contact the South African Human Rights Commission (“SAHRC”) to lodge a complaint. The SAHRC will resolve the complaint through negotiation, mediation or arbitration.

-      Approach a court to enforce his/her right to claim compensation if the limitation caused damages. It is recommended to obtain the assistance of an attorney when approaching the court.

-      Lodge a complaint with another institution, such as the Public Protector or a non-governmental organisation.

Question: Why is a public hospital asking me for payment?

Answer:  > Section 27 of the Constitution provides that everyone has the right to have access to health care services including reproductive health care; and no one may be refused emergency medical treatment.

>     The Constitution further provides that the state is to cater for this right within its available resources. The state may also enact legislation for the realisation of this right.

>     The National Health Act 61 of 2003 (“National Health Act”) has been enacted to provide a legal framework for the health system in South Africa.

>     Section 4 of the National Health Act provides that the Minister of Finance may prescribe conditions which one should meet to be eligible for free health care services at public health facilities. This means that not everyone may qualify for free health care services.

>     The Department of Health has a means test to establish who is eligible for free or discounted health services.

>     According to section 4 of the National Health Act, health services at a public health facility are free for pregnant and lactating women and children below the age of six years, who are not members or beneficiaries of medical aid schemes.

>     This means that depending on a person's income or other sources of earning a living, s/he may have to pay a fee for health care services at a public health care facility.

Did you know… Smoking in the presence of children can infringe on a child's human rights and the law prohibits smoking in the presence of children in some instances.