HUMAN RIGHTS

What are human rights?

• Human rights are commonly understood as being

those rights which are inherent to the human being.
The concept of human rights acknowledges that every
single human being is entitled to enjoy his or her
human rights without distinction as to race, colour,
sex, language, religion, political or other opinion,
national or social origin, property, birth or other
status.
 What are human rights?
Cont’d
• Human rights are legally guaranteed by human rights
law, protecting individuals and groups against actions
which interfere with fundamental freedoms and human
dignity. They are expressed in treaties, customary
international law, bodies of principles and other
sources of law. Human rights law places an obligation
on States to act in a particular way and prohibits
States from engaging in specifed activities.
 What are human rights?
Cont’d
• However, the law does not establish human rights.
Human rights are inherent entitlements which come
to every person as a consequence of being human.
Treaties and other sources of law generally serve to
protect formally the rights of individuals and groups
against actions or abandonment of actions by
Governments which interfere with the enjoyment of
their human rights.
 Characteristics of human rights

• Human rights are founded on respect for the dignity and

worth of each person;
• Human rights are universal, meaning that they are applied
equally and without discrimination to all people;
• Human rights are inalienable, in that no one can have his or
her human rights taken away other than in specifc situations
– for example, the right to liberty can be restricted if a
person is found guilty of a crime by a court of law;
 Characteristics of human rights
cont’d
• Human rights are indivisible, interrelated and
interdependent, for the reason that it is insufcient to
respect some human rights and not others. In practice, the
violation of one right will often afect the respect of several
other rights. All human rights should therefore be seen as
having equal importance and of being equally essential to
respect for the dignity and worth of every person.
 International Human Rights Law

• The formal expression of inherent human rights is through

international human rights law. A series of international
human rights treaties and other instruments have emerged
since 1945 conferring legal form on inherent human rights.
The creation of the United Nations provided an ideal forum
for the development and adoption of international human
rights instruments. Other instruments have been adopted at
a regional level refecting the particular human rights
concerns of the region.
International Human Rights Law
cont’d
• Most States have also adopted constitutions and
other laws which formally protect basic human
rights. Often the language used by States is
drawn directly from the international human
rights instruments. International human rights law
consists mainly of treaties and customs as well as,
inter alia, declarations, guidelines and principles.
 Treaties

• A treaty is an agreement by States to be bound by

particular rules. International treaties have diferent
designations such as covenants, charters, protocols,
conventions, accords and agreements. A treaty is legally
binding on those States which have consented to be bound
by the provisions of the treaty – in other words are party to
the treaty.
 Custom

• Customary international law (or simply “custom”) is the

term used to describe a general and consistent practice
followed by States deriving from a sense of legal
obligation. Thus, for example, while the Universal
Declaration of Human Rights is not in itself a binding
treaty, some of its provisions have the character of
customary international law.
Declarations, resolutions etc. adopted by UN organs

• General norms of international law principles and practices that most

States would agree are often stated in declarations, proclamations,
standard rules, guidelines, recommendations and principles. While no
binding legal efect on States, they nevertheless represent a broad
consensus on the part of the international community and, therefore,
have a strong and undeniable moral force on the practice of States in
their conduct of international relations. The value of such instruments
rests on their recognition and acceptance by a large number of States,
and, even without binding legal efect, they may be seen as declaratory
of broadly accepted principles within the international community.
 CHAPTER 5
HUMAN RIGHTS
 State responsibility for human rights

• The obligation to protect, promote and ensure the enjoyment of human

rights is the prime responsibility of States, thereby conferring on States
responsibility for the human rights of individuals.
• Many human rights are owed by States to all people within their territories,
while certain human rights are owed by a State to particular groups of people:
for example, the right to vote in elections is only owed to citizens of a State.
• State responsibilities include the obligation to take pro-active measures to
ensure that human rights are protected by providing efective remedies for
persons whose rights are violated, as well as measures against violating the
rights of persons within its territory.
 State responsibility for human rights
cont’d
• Under international law, the enjoyment of certain rights can be restricted in
specifc circumstances. For example, if an individual is found guilty of a crime
after a fair trial, the State may lawfully restrict a person’s freedom of
movement by imprisonment.
• Restrictions on civil and political rights may only be imposed if the limitation
is determined by law but only for the purposes of securing due recognition of
the rights of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society. Economic, social and
cultural rights may be limited by law, but only insofar as the limitation is
compatible with the nature of the rights and solely to promote the general
welfare in a democratic society.
 State responsibility for human rights
cont’d

• In a legitimate and declared state of emergency, States

can take measures which limit or suspend (or “derogate”
from) the enjoyment of certain rights. Such derogations are
permitted only to the extent necessary for the situation
and may never involve discrimination based on race,
colour, sex, language, religion or social origin.
 South African parliament and human rights

• Parliament is the custodian of the Constitution of the

Republic of South Africa, 1996 (Constitution), and as such
subscribes to the culture of human rights.
• Parliament established the South African Human Rights
Commission (SAHRC) in terms of Section 184 of the
Constitution. The mandate of the Commission is to
promote, protect and monitor the development and
observance of human rights in our country.
 Parliament’s role in promoting human rights

The Constitution lays the foundation for our democracy in

South Africa, which has recently celebrated its 28th
year(2024). The Constitution which was passed into law by
Parliament, binds the State to “Heal the divisions of the past
and establish a society based on democratic values, social
justice and fundamental human rights,” (Preamble,
Constitution).
 Parliament’s role in promoting human
rights cont’d

• Parliament has also passed laws that promote a culture of

respect for human rights, and has repealed those laws which
have undermined this.
• The Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA) of 2000 is one such piece of
legislation. This law aims to promote equality (as per Section 9
of the Bill of Rights), and importantly, it ensures that Magistrates
Courts become Equality Courts where cases of unfair
discrimination can be tried.
 Human rights instruments in South
Africa

• South Africa is a signatory to a number of conventions which seek

to protect the human rights of everyone globally and locally
especially those who are most vulnerable including women and
children. Firstly, the Universal Declaration of Human Rights is a
predecessor to our Bill of Rights. Secondly, South Africa signed
the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW); the Convention on the Rights of the
Child (CRC) and the International Convention on the Elimination of
all forms of Racial Discrimination (ICERD).
 The Bill of Rights

• The human rights of all South African citizens are protected

by the Bill of Rights contained in chapter two of the
Constitution. The Bill of Rights is a cornerstone of
democracy in South Africa and protects our rights.
 (a) Section 9 provides for the right to
equality

• This section states that everyone is equal before the law and
has the right to equal protection and beneft of the law. No
one may be unfairly discriminated against. The Bill of Rights
lists certain grounds of discrimination and states that
discrimination against any of these rights is considered
unfair unless it is proved to be fair. The grounds listed
include: race, gender, sex, pregnancy, marital status, ethnic
or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language and birth.
(a) Section 9 provides for the right to equality
cont’d

The right to equality is further protected by the Promotion of Equality and

Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). The following
institutions can assist anyone who feels they have been unfairly
discriminated against:
• Equality Courts
Complaints of unfair discrimination may be lodged with any Equality Court.
Did you know? Every Magistrates Court also sits as an Equality Court! More
information about the Equality Court is available on the Department of
Justice and Constitutional Development website: [Link]
(a) Section 9 provides for the right to equality
cont’d

• The Commission for Gender Equality (CGE)

The CGE is an independent institution created in terms of
Chapter 9 of the Constitution. In terms of the Constitution
this institution is mandated to promote, protect, monitor and
evaluate gender equality. More information on the CGE is
available at their website [Link]
 (b) Section 10 provides the right to human dignity

• This section states that everyone has inherent dignity and

the right to have their dignity respected and protected.
This means that everyone is entitled to equal respect. The
right to dignity is deeply connected to other basic rights,
and when other rights like the right to access water and
sanitation are violated, the right to dignity is also often
violated.
 (c) Section 11 provides for the right to
life

• This section provides that everyone has the right to life. No

one is allowed to end the life of another human being. The
right to life is regarded as requiring the highest possible
protection by the State and by all people in the country. The
court can no longer sentence people to death because the
Constitutional Court declared the death penalty
unconstitutional. Threats to the right to life are regarded as
criminal in South Africa, and such threats must immediately
be reported to the South African Police Services (SAPS).
 (d) Section 12 provides for the right to freedom and security of the
person

This right provides that everyone has the right to freedom and security of the person which
includes:
• Not to be deprived of their freedom without good reason;
• Not to be locked up in prison without trial;
• To be free from all forms of violence;
• Not to be tortured in any way;
• Not to be treated or punished in a cruel, inhumane or degrading way;
• To make decisions concerning reproduction;
• To security in and control over their body and;
• Not to be forced to participate in medical or scientifc experiments.
(e) Section 13 provides for the right against
slavery, servitude and forced labour

• This right provides that no one may be subjected to

slavery, servitude or forced labour. While the incidence of
such violations are low in South Africa, people who are
vulnerable often experience difculties in reaching help
when they subjected to forced labour. The Department of
Labour, certain civic organisations, and the SAHRC should
be alerted to violations indicating slavery, servitude or
forced labour.
 (f) Section 14 provides for the right to privacy

Everyone has a right to privacy which includes the right not

to have:
• Their body or home searched;
• Their property searched;
• Their possession taken from them or;
• Their private communication infringed upon.
 (g) Section 15 provides for the right to
freedom of religion, belief and opinion

• South Africa is a secular state, which must respect the

diverse religious, customary and traditional practices
within it. People should not be prejudiced because of
diferences within their thoughts, beliefs and opinions.
Instead diferences and diversity should be encouraged so
that they fourish and enrich society.
 (h) Section 16 provides the right to
freedom of expression

Everyone has the right to freedom of expression. This right

includes:
• Freedom of the press and other media;
• Freedom to receive or impart information or ideas;
• Freedom of artistic creativity; and
• Academic freedom and freedom of scientifc research.
 (h) Section 16 provides the right to
freedom of expression cont’d

• This right must be allowed to be exercised to its maximum, and

is limited where the expression actually encourages violence or
incites harm to others. Hate speech is commonly complained
about in South Africa, usually on the grounds of race, ethnicity,
gender or religion, social origin, causing both the Commission
and the equality courts to pronounce on such complaints.
• Bodies such as the Broadcasting Complaints Commission of
South Africa (BCCSA), the Press Ombudsman, the CCMA also deal
with complaints regarding the right to freedom of expression.
 (i) Section 17 provides for the right to assembly, demonstration, picket
and petition

This section provides that everyone has the right, peacefully and
unarmed:
• To assemble, to demonstrate,
• To picket and
• To present a petition.
This right gives people an opportunity to express dissatisfaction or
demands in a peaceful manner. You do not need permission to protest, but
you must give notifcation to authorities at least 7 days before the day of
the protest.
(j) Section 18 provides for the right to freedom of association

• This section provides that everyone has the right to

freedom of association. Unless required by law, which for
example requires membership of certain professional
bodies, or prohibits the formation of criminal associations,
people may join and create any formation, group or
organisation.
 (k) Section 19 provides for political rights

Everyone has the right to freely make political choices,

such as the right:
• To form a political party; and
• To participate in the activities of a political party.
Every citizen has the right:
• To free and fair elections;
• To vote in secret during the elections; and
• To stand for public ofce and, if elected to hold ofce
 (l) Section 20 provides for the right not
to be deprived of citizenship

• No citizen may be deprived of citizenship.

• This right means that citizenship may not be taken away
from citizens. The South African Citizenship Act 88 of 1995
provides for instances where citizenship may be
withdrawn.
 (m) Section 21 provides for the right to
freedom of movement and residence

Everyone has the right:

• To move anywhere in South Africa; and
• To leave South Africa if they so choose.
Every citizen has the right:
• To enter, to stay in and to live ANYWHERE in South
Africa; and
• To have a passport.
(n) Section 22 provides for the right to freedom of trade, occupation and
profession

• Every citizen has the right to choose their trade,

occupation or profession freely.
• This right means every citizen is free to choose any job he
or she wants to do, or to choose to start his/her own
business. The right is limited in our law to work that is
lawful and additional conditions are placed on people who
are not citizens.
(o) Section 23 provides for workers’ and
employers rights (labour relations)

Everyone has a right to fair labour practices. (?)

The main legislation governing labour relations includes:
• The Labour Relations Act 66 of 1995; and
• The Basic Conditions of Employment Act 75 of 1995;
The Department of Labour is the custodian of this right.
 (p) Section 24 provides for environmental rights

Everyone has the right to an environment that is not harmful

to their health or wellbeing. Rights to a safe environment are
becoming increasingly important to monitor as businesses and
other stakeholders conduct work such as mining which can
contribute to pollution and destruction of natural resources.
Pollution of the environment can cause serious health
conditions in communities exposed to such pollution. As a
result, this right creates a duty on the state to ensure that the
environment is properly managed. (?)