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March 2019 Issue 17

LegalWise will advise and assist you on all of these topics and more.

Is there a difference between the Constitution and the Bill of Rights?

  • The Constitution of the Republic of South Africa (commonly referred to as the Constitution) is the highest law in South Africa.
  • This means that any legislation and decisions of courts must be in accordance with what is stated in the Constitution.
  • The Bill of Rights is a chapter within the Constitution where the human rights are set out, such as the right to life, privacy and fair labour practices.
  • Seeing as the Bill of Rights is a chapter within the Constitution, it is also the highest law in South Africa.

Are human rights only protected by the Constitution?

  • Apart from the Constitution, there are also various legislation put into place that can protect human rights.
  • For example, the Protection of Personal Information Act 4 of 2013 will protect the right to privacy when it comes into operation, by restricting how a person’s private information may be accessed and used.

What happens when two human rights conflict with each other?

  • It may happen that two persons try to enforce their human rights against each other, for example, where one person says something to another who takes offence to what is said.
  • In this example the person who made the statement might want to enforce his/her right to freedom of expression (including freedom of speech). The other person who was offended might want to enforce his/her right to dignity.
  • In a situation like this, the courts will have to make a decision on which right will prevail.
  • The courts will have to weigh the right to freedom of expression of the one person to say what she wants, against the other person’s right to not have their dignity impaired. Various factors will be taken into account in deciding which right to limit, such as what has been said and to whom it was said, the reason for the statement and whether the statement was made public or not, and so on.

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

  • 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 law. This is known as the right to access to courts.
  • This right also includes to have 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.

Can a person stand up for someone else’s human rights?

  • An interested person can bring an application to a court on behalf of a person whose human rights are being infringed.
  • Section 38 of the Constitution allows any person to act on behalf of someone else who cannot do so themselves. Further, the interested person could even act on behalf of a group or community of persons who are affected.
Did you know:The SAHRC can investigate, resolve, provide advice to, and assist victims of human rights violations.

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