> Part of the process for legislation to be made is when an Act is signed off by the President.
> When an Act is signed off, it does not necessarily mean it has come into effect immediately.
> Sometimes an Act may require certain actions to be taken by other departments, for example, regulations and rules may have to be created first to regulate more aspects around the Act. Sometimes new departments or entities must first be established before an Act can fully come into effect.
> In such cases, an Act contains a provision that provides that it will only come into effect on a date determined by the President by proclamation in the Gazette.
> Once the necessary actions have been finalised, the President is approached and requested to put the Act into operation on a certain date.
> There has been plenty of talk about this new council as a result of the National Council on Gender Based Violence and Femicide Act 9 of 2024 (“GBV Council Act”) that was recently signed into law by the President. Although it has not come into effect yet, it indicates the developments being made in respect of gender-based violence and femicide.
> The GBV Council Act will establish a National Council on Gender-Based Violence and Femicide (“GBV Council”) to address and combat the issues specifically relating to gender-based violence and femicide.
> The GBV Act defines femicide as “…the killing of a female person or a person on the basis of gender identity as a female, whether committed by a person within a domestic relationship interpersonal relationship or by any other person.”
> The GBV Act also defines gender-based violence as “…violence associated with gender, which includes physical, sexual, verbal, emotional, economic, domestic, educational or psychological abuse or threats of such acts of abuse in public or private life.”
> The GBV Council in terms of the GBV Act must create a plan to implement a national strategy addressing gender-based violence and femicide, and come up with measures for education and training concerning the prevention and combating of gender-based violence and femicide.
> On 24 May 2024, President Cyril Ramaphosa remarked that various efforts have already been put in place (such as strengthening laws around gender-based violence) that led to improvements in conviction rates and in stricter sentencing. The President went on to state:
“While this progress is welcome, our greatest task is to prevent gender-based violence from being perpetrated in the first place We are confident that this Council will provide much of what we need and will further strengthen the national effort to eradicate violence against women and children.”
> In light of this, the GBV Council will aim to ensure measures are in place regarding the safety and protection of women and children in the country who fall victim to these crimes.
> The Hate Speech Act states that it will be an offence to distribute or make available any electronic communication that the person knows constitutes hate speech.
> This means that just the sharing of a social media post that contains hate speech can leave a person in trouble.
> Although there are similar consequences currently in place, the specific inclusion of these actions as an offence highlights the seriousness of trying to eliminate hate speech.
> The Prevention and Combatting of Hate Crimes and Hate Speech Act 16 of 2023 (“Hate Speech Act”) was recently signed into law by the President, however, it has not come into effect yet.
> The Hate Speech Act was drafted to address and lessen the issues surrounding hate crimes and hate speech in the country.
> The Hate Speech Act aims to criminalise hate crimes and hate speech that are usually motivated by prejudice which is more often associated with a person's race, religion, political association/status and so on. It should also be noted that gender, sexual orientation and gender expression are considered to be grounds on which hate crimes and hate speech can be based upon.
> Once in effect, the Hate Speech Act aims to provide for the reporting on the implementation and application of this Act. This means that further guidelines will be provided for on how to report the crime, when to report the crime and the process that will be taken for the consequence if found guilty of an offence under the Hate Speech Act.
> It is also important to note that the Hate Speech Act still considers section 16 of the Constitution, which allows a person to practice their right to free speech provided that it does not promote or incite any kind of hate speech.
- The Constitution grants this right to “everyone”, however, this is not an absolute right and is governed by legislation, such as the Social Assistance Act 13 of 2004.
- This means that the legislation will have clear guidelines as to when a person will qualify for social assistance. As a general rule, those who are in need are more likely to claim and benefit from the social security protection provided in the Constitution.
- It should also be taken into account that the Constitution only provides access to social security and not a right to automatically receive social security.
- The right to have access to social security is recognised as a human right under section 27 of the Constitution and includes appropriate social assistance to persons who are unable to support themselves and their dependants.
- Social security aims to ensure that all people have adequate economic and social protection during certain events, such as unemployment.
- Examples of appropriate social assistance include old-age grants, child support grants and disability grants.
- During the national state of disaster, the Temporary Employee/Employer Relief Scheme (“TERS”) can be seen as a form of social assistance. TERS is a special benefit created to provide emergency relief to employers so that they may continue to pay their employees during a temporary lay-off.
- The right to own property is protected by section 25 of the Constitution that 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.
- 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, 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 extend. 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 manners 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.
- 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).
In light of the constitutional right to a free election, the Electoral Act provides that no-one may force or unlawfully persuade another person to register as a voter, to go and vote or not to vote, to cast a vote for a specific party and so on. If this is done, a person can be found guilty of a criminal offence and can be imprisoned for up to 10 years.