Constitution of the Republic of South Africa

Chapter 2 - Bill of Rights

Constitutional Rights AND Constitutional Obligations

Stes de Necker

The following three documents will serve as reference for the purpose of this article:

Ø The South African Bill of Rights (1996)

Ø The Universal Declaration of Human Rights

Ø Schedule 4 of the Interim Constitution of the Republic of South Africa, 1993

(1) The South African Bill of Rights

For ease of reference I have included the complete Bill of Rights as contained in Chapter 2 of the Constitution of South Africa 1996 (as amended) as Attachment I to this article.

(2) The Universal Declaration of Human Rights

The rights contained in the South African Bill of Rights, were founded, to a large extent, on the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948. Regard was also had to the Human Rights Chapter contained in the Africa Charter, but for purposes of this discussion we will stick to the UDHR.

For the full text of the Universal Declaration of Human Rights (UDHR) - see Attachment II

The Declaration arose mainly from the experiences of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled.

It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws.

The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the UDHR.

In 1966 the General Assembly adopted the two detailed Covenants, which completed the International Bill of Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law.

All Conventions of the UN regarding Human Rights have subsequently been ratified by the South African Government.

(3) Schedule 4 of the Interim Constitution of the Republic of South Africa

The Constitution of the Republic of South Africa, 1993, also known as the "Interim Constitution", was the constitution of South Africa from 27 April 1994 to 4 February 1997. It enumerated a bill of rights for the people of South Africa. It described the division of South Africa into nine provinces, and established the structure of national, provincial and local spheres of government and the principles that governed the interaction between the spheres. It established a single independent national judiciary along with various other independent organizations to support democracy and the constitution.

The Interim Constitution was drafted in 1993 by the "Multiparty Negotiating Forum" and came into effect on the day of the elections of 1994. It required the two houses of Parliament to sit jointly as the "Constitutional Assembly" to draft the text of a new constitutional text. This new constitutional text came into force on 4 February 1997 as the Constitution of the Republic of South Africa, 1996, at which time the Interim Constitution was repealed.

Schedule 4 of the Interim Constitution specified the constitutional principles on which South Africa’s Constitution (1996) were to be founded. See Attachment III.

In the case: Ex Party, Chairperson of the Constitutional Assembly, In re Certification of the Constitution of the Republic of South Africa, [96(4) SA law Reports 744 CC], the Constitutional Court certified that the "new" Constitution complied with all the principles contained in Schedule 4 of the Interim Constitution.

Although Schedule 4 of the Interim Constitution was repealed by the 1996 Constitution, any lacuna which could subsequently arise, relating to the compliance with the now defunct Schedule 4 of the Interim Constitution, may still be referrable to the Constitutional Court.

Provisions regarding the limitation of rights

In terms of Sec. 36 of the Constitution (1996), the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

1. the nature of the right;

2. the importance of the purpose of the limitation;

3. the nature and extent of the limitation;

4. the relation between the limitation and its purpose; and

5. less restrictive means to achieve the purpose.

Except as provided above, or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

The question is:

Does this means that, if there exist no “law of general application”, every person then has an unrestricted and unqualified right to exersice any of his basic human rights in any manner he/she deems fit?

Certainly not!

As mentioned previously under the Universal Declaration of Human Rights, when the General Assembly of the UN adopted the International Bill of Human Rights in 1996, the Bill took on the force of international law once the Covenants had been ratified by a sufficient number of nations.

Article 29 of the UDHR (which is now considered international law) states clearly:

Sub article 1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

Sub article 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Sub article 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30 of the UDHR further states that:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth here in and out.

In terms of Section 39 (1) b (Interpretation) of the Constitution (Bill of Rights), when interpreting the Bill of Rights, a court, tribunal or forum, must consider international law. Any court, tribunal or forum are therefore compelled not only to apply the Constitution, but also to consider the provisions of the International Bill of Human Rights in making a determination in terms of the Constitution.

Founding principle II, Schedule 4 of the Interim Constitution clearly states:

Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justifiable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution, while Section 35 (1) of the Interim Constitution provides that:In interpreting the provisions of this Chapter [Chapter 3 of the Interim Constitution] a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.

Discussion

In light of the aforementioned, it is obvious that no basic human right can ever be totally unlimited.

Personal level

Any person, exercising any of his basic human rights, always carries a very specific obligation(s) in respect of such right. Everyone has the right to freedom of expression, but this doesn’t mean that one can go about slandering anyone else as you please. Everyone has the right to property, but that doesn’t mean you can occupy any land and claim it to be yours. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions. This certainly did not give the strikers at Marikana the right to carry weapons and to fire at the police!

At the core of these, and other, human rights related strikes and demonstrations, lay one very important shortcoming, and that is the ignorance of our people regarding their primary responsibilities when exercising their basic human rights.

Government level

As is the case of the individual exercising his rights, so also must Government complies with the international norms and standards relating to human rights.

In terms of the provisions contained in Section 36 of Chapter of the Constitution:

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

a. the nature of the right;

b. the importance of the purpose of the limitation;

c. the nature and extent of the limitation;

d. the relation between the limitation and its purpose; and

e. less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

As a transitional arrangement, the Constitution makes provision for “justifiable discrimination” in order to correct the imbalances of the past.

To this end, Section 33, which deals with just administrative action, makes provision for:

1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

3) National legislation must be enacted to give effect to these rights, and must a. provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

b. impose a duty on the state to give effect to the rights in subsections (1) and(2); and

c. promote an efficient administration.

In view of the universal principle that a shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society, the pressing issue today is:

To what extent is it still justifiable that unfair discriminatory legislation relating to affirmative action, black economic empowerment, black tersiary education, sport quota’s etc. must remain enacted in a society which claims to be a true democracy in which the values of human dignity, equality and freedom are enshrined.

Most transitional arrangements have already been met in most spheres of society and need to be abolished!

Institutions protecting the Integrity of the Constitution

There exist a number of statutory and non-statutory bodies and organizations which are tasked primarily to ensure compliance with the Constitution.

Ø The statutory institutions established by the Constitution include:

Ø The Public Protector.

Ø The Human Rights Commission

Ø The Commission for the Promotion and Protection of the rights of Cultural, Religious and Linguistic Communities.

Ø The Commission for Gender Equality.

Ø The Auditor General.

Ø The Electoral Commission.

These institutions are independent bodies, subject only to the Constitution and the Law and must perform their duties and functions without fear, favour or prejudice.

One of the more prominent non-governmental organizations promoting the integrity of the Constitution is the Council for the Advancement of the South African Constitution (CASAC), (situated in Rondebosch Cape Town) founded upon the following core Principles:

1. The idea of “progressive constitutionalism” is a pivotal founding principle.

2. As the supreme law of the land, the Constitution provides a framework for the social and economic transformation of South Africa, and for a deliberative, participatory and inclusive democracy. This framework together with its underlying values and founding principles need to be protected and advanced.

3. The constitution itself must be subject to on-going critical appraisal to assess its efficacy as the needs of the country change. There may be a need to debate and lobby for constitutional and legislative reform to enhance the legitimacy of the democratic political process. The Constitution must be a living, not a static document that evolves to deepen democracy.

4. The principle of the rule of law is a critical building block in seeking to pursue the concept of constitutionalism; public and private power must be exercised within the law in order to retain legitimacy and to enhance a culture of responsibility and accountability to guard against the arbitrary use and abuse of power and authority.

5. Judicial independence is, in turn, an indispensable element, if not a pre-requisite for the rule of law and the integrity of the court system if it is to dispense justice that promotes substantive equality as well as procedural fairness.

6. In order for people to organise lawfully to claim rights, and to participate meaningfully in democratic decision-making, civil liberties such as freedom of speech, access to information, and a free and tolerant political process are essential.

7. The realisation of the socio-economic rights is intertwined with civil liberties and political freedoms. Social and economic marginalisation deprives people of their fundamental right to live with security and dignity and is a betrayal of the Constitution.. Endemic poverty and inequality renders South Africa a fragile society, where the poor and the vulnerable, especially women and children, are condemned to the fringes and easily exploited. There is an unacceptable and unsustainable gap between the vision of the Constitution and the lived reality for far too many citizens. This gap must be closed. Providing people with access to decent education, adequate housing and health care, and with the protection of a social security net, is essential for a cohesive society and the future prosperity of the nation.

8. As traditional orthodoxies are being questioned in the global economy, so too must the Constitution take into consideration the socio-economic context in which it exists and be responsive to the scale, urgency and inter-connectedness of the challenges of globalization and sustainable development.

9. The values that contribute to building a society with effective systems of open governance – ethical behaviour, accountability, competence, hard work, a spirit of public service with consequences for poor performance or corrupt conduct, non-violent resolution of disputes, and non partisanship – also need to be respected.

10. A rights-based culture must also focus on the responsibilities and obligations that go with these rights, encouraging citizens to be active in improving their own lives and communities, in holding government to account through participative processes and sustained social dialogue. The goal is a deliberative democracy that celebrates diversity, where respect is the norm, and thus builds solidarity between people from different social groups

All eight of the above mentioned institutions can be approached in the event of any threat to our Constitutional integrity.

Conclusion

Since it’s inception, the South Africa’s Constitution complied and addressed the will of the majority of the citizens of this country. The civil unrest we are currently experience is not due to any Constitutional deficiency, but rather to the inefficiancy of those responsible to oversee compliance and adherance with the Constitution i.e. the Government of South Africa and the statutory bodies established spesifically for this purpose.

In a previous article entitled “Suid-Afrikaners se Grondwetlike Regte”, (http://stesdeneckers.blogspot.com), I responded to a call by previous Pres. FW de Klerk, that all South Africans must stand up to demand their Constitutional rights.

In that article I have enumerated on the futility of such an attempt by a single individual.

Unless all South Africans act united and in solidarity with the cause, any attempt by a single individual to change the status quo, will be wasted energy.

Not since 1994 has South Africa been so ready for radical change in it’s political dispensation.

The South African Government first needs to correct it’s current destructive political culture before any economic and sosio-economic change can be possible.

The question remains: Can the ANC lead Government self, effectively change the political conundrum it finds itself in.

Unfair discriminatory provisions have served their cause and needs to be abolished as soon as possible if South Africa wishes to be acknowleged as a true democracy.

In a previous article entitled “The Freedom Charter, 1955 - Who revoked the Freedom Charter without telling South Africa” (http://stesdeneckers.blogspot.com), I made reference to the National Chairman of the Australian Protectionist Party, Andrew Phillips, who called upon both the Federal Labour government and the Opposition to unanimously support the re-introduction of sanctions on South Africa.

Phillips said:

"It is becoming increasingly clear the situation in South Africa warrants international attention once again", Phillips said. "Despite noble announcements by the African National Congress (ANC) of its intent to make South Africa an egalitarian society in which all people could live in harmony and have equal opportunity-the reality is quite different."

Phillips’calls followed shortly after Woolworths’ SA asking that only "African Black candidates" apply for certain posts in job advertisements and South African Airways saying it will only appoint black pilots to its cadet pilot training programme.

Phillips continued, "Australia is dragging its feet in recognising the reality of the New South Africa. Euro MPs Barry Madlener and Lucas Hartong have already called for the EU to cease giving millions in aid to South Africa and have already raised the issue of what can only be described as cultural genocide in that country.

With the advent of so-called majority rule, minorities such as the Afrikaner communities are experiencing ever increasing disadvantage and persecution based on the colour of their skin.

The South African government has done little to protect the lives of the nation's farmers and their families, actively promotes the on-going Anglicisation of the nation's government sector with the current debate of the "Languages Bill" and has reduced an estimated 10% of the nation's Afrikaner community to the poverty line through the introduction of a race based Affirmative Action policy - a situation President Zuma described as both "shocking and surprising", yet has done nothing to address.

Australia was quick to take the moral high-ground against South Africa decades ago, now is not the time to expose our hypocrisy by refusing to re-introduce sanctions and apply meaningful diplomatic pressure upon the ANC regime,"

The Australian Protectionist Party recognises the right of all people, irrespective of racial, cultural or religious background to a safe homeland, self determination and the opportunity to control their national destiny in an increasingly globalised world.

South Africa

’s Constitution is recognized throughout the world as one of the best constitutions in the world. Everybody involved was pleased and proud to have been a part of it. Two of the leaders were even awarded Nobel Peace Prizes.

It seems however that the ANC Government is becoming more and more uncomfortable with the Constitution, especially performing it's Constitutional obligations judisiously and diligently. They claim to live by the rule of law, but when the law isn’t on their side, they’re happy to bend, ignore, or even break it; They accept that the imbalances of the past have been corrected in most spheres of society, but stubbornly refuse to abolish the discriminatory practices intended to achieve equity and justice; They acknowledge the destruction caused by indiscriminate black empowerment, but refuses to amend it's ineffctive policies and practices in this regard.

Exacerbating the situation even further is the fact that most South Africans acquired their basic human rights before they were properly enfranchised and empowered to execute these rights justly and responsibly. For far too long the South African Government has focused only on the rights enshrined in Constitution and not on the reciprocal responsibilities and obligations that go with these rights.

Government should rather focus on the promotion of a deliberative democracy that will protect South Africa’s rich diversity and encourage respect for the views and beliefs of others. Only then will South Africa be able to build solidarity between the different social groups in this country.

It will serve the Government, and South Africa as a whole, well to codify and promote each citizen’s duties and obligations under the Bill of Rights, clearly and unambiguously, without delay.

Simply patching up the system avery time there is a problem, will no longer work. South Africa is in dire need of a total reform of it’s economic-, sosio economic, and political goals and objectives. Avoiding these thorny issues any longer will only cause further unnecessary unrest and devision between the different cultural groups in this country.

South Africa

can no longer afford any further proliferation of the prevailing civil unrest which is currently destroying this country.

If I could send one message to all my fellow South Africans, it would be:

"South African's, let us unite in diversity!!"

ATTACHMENT I

Chapter 2 of the Constitution (1996) - Bill of Rights

The text below includes all amendments, up to and including the 16th Amendment to the Constitution

7. Rights

1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

2. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

3. The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

8. Application

1. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

2. 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.

When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court

a. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

b. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

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.

9. Equality

1. Everyone is equal before the law and has the right to equal protection and benefit of the law.

2. Equality includes the full and equal enjoyment of all rights and freedoms. 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.

3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

11. Life

Everyone has the right to life.

12. Freedom and security of the person

Everyone has the right to freedom and security of the person, which includes the right

not to be deprived of freedom arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of violence from either public or private sources;
not to be tortured in any way; and

e. not to be treated or punished in a cruel, inhuman or degrading way.

Everyone has the right to bodily and psychological integrity, which includes the right

to make decisions concerning reproduction;
to security in and control over their body; and
not to be subjected to medical or scientific experiments without their informed consent.

13. Slavery, servitude and forced labour

No one may be subjected to slavery, servitude or forced labour.

14. Privacy

Everyone has the right to privacy, which includes the right not to have 

their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications infringed.

15. Freedom of religion, belief and opinion

1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Religious observances may be conducted at state or state-aided institutions, provided that

those observances follow rules made by the appropriate public authorities;
they are conducted on an equitable basis; and

c. attendance at them is free and voluntary.

This section does not prevent legislation recognising

marriages concluded under any tradition, or a system of religious, personal or family law; or
systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

16. Freedom of expression

Everyone has the right to freedom of expression, which includes

freedom of the press and other media;
freedom to receive or impart information or ideas;
freedom of artistic creativity; and

d. academic freedom and freedom of scientific research.

The right in subsection (1) does not extend to

propaganda for war;
incitement of imminent violence; or
advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

17. Assembly, demonstration, picket and petition

Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

18. Freedom of association

Everyone has the right to freedom of association.

19. Political rights

Every citizen is free to make political choices, which includes the right

to form a political party;
to participate in the activities of, or recruit members for, a political party; and

c. to campaign for a political party or cause.

2. Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

Every adult citizen has the right

to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
to stand for public office and, if elected, to hold office.

20. Citizenship

No citizen may be deprived of citizenship.

21. Freedom of movement and residence

1. Everyone has the right to freedom of movement.

2. Everyone has the right to leave the Republic.

3. Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.

4. Every citizen has the right to a passport.

22. Freedom of trade, occupation and profession

Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

23. Labour relations

1. Everyone has the right to fair labour practices.

Every worker has the right

to form and join a trade union;
to participate in the activities and programmes of a trade union; and

c. to strike.

Every employer has the right

to form and join an employers' organisation; and

b. to participate in the activities and programmes of an employers' organisation.

Every trade union and every employers' organisation has the right

to determine its own administration, programmes and activities;
to organise; and

c. to form and join a federation.

5. Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

6. National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

24. Environment

Everyone has the right 

to an environment that is not harmful to their health or well-being; and
to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

prevent pollution and ecological degradation;
promote conservation; and
secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

25. Property

1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

Property may be expropriated only in terms of law of general application

for a public purpose or in the public interest; and

b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including

the current use of the property;
the history of the acquisition and use of the property;
the market value of the property;
the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and

e. the purpose of the expropriation.

For the purposes of this section

the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and

b. property is not limited to land.

5. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

6. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

7. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

8. No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

Parliament must enact the legislation referred to in subsection (6).

26. Housing

1. Everyone has the right to have access to adequate housing.

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27. Health care, food, water and social security

Everyone has the right to have access to

health care services, including reproductive health care;
sufficient food and water; and

c. social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

3. No one may be refused emergency medical treatment.

28. Children

Every child has the right

to a name and a nationality from birth;
to family care or parental care, or to appropriate alternative care when removed from the family environment;
to basic nutrition, shelter, basic health care services and social services;
to be protected from maltreatment, neglect, abuse or degradation;
to be protected from exploitative labour practices;
not to be required or permitted to perform work or provide services that

are inappropriate for a person of that child's age; or
place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be

kept separately from detained persons over the age of 18 years; and
treated in a manner, and kept in conditions, that take account of the child's age;

to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

i. not to be used directly in armed conflict, and to be protected in times of armed conflict.

2. A child's best interests are of paramount importance in every matter concerning the child.

3. In this section "child" means a person under the age of 18 years.

29. Education

Everyone has the right

to a basic education, including adult basic education; and

b. to further education, which the state, through reasonable measures, must make progressively available and accessible.

Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account

equity;
practicability; and

c. the need to redress the results of past racially discriminatory laws and practices.

Everyone has the right to establish and maintain, at their own expense, independent educational institutions that

do not discriminate on the basis of race;
are registered with the state; and

c. maintain standards that are not inferior to standards at comparable public educational institutions.

Subsection (3) does not preclude state subsidies for independent educational institutions.

30. Language and culture

Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

31. Cultural, religious and linguistic communities

Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community

to enjoy their culture, practice their religion and use their language; and

b. to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

32. Access to information

Everyone has the right of access to

any information held by the state; and

b. any information that is held by another person and that is required for the exercise or protection of any rights.

National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

33. Just administrative action

1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

National legislation must be enacted to give effect to these rights, and must

provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
impose a duty on the state to give effect to the rights in subsections (1) and (2); and
promote an efficient administration.

34. Access to courts

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

35. Arrested, detained and accused persons

Everyone who is arrested for allegedly committing an offence has the right

to remain silent;
to be informed promptly

of the right to remain silent; and
of the consequences of not remaining silent;

not to be compelled to make any confession or admission that could be used in evidence against that person;
to be brought before a court as soon as reasonably possible, but not later than

48 hours after the arrest; or
the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and

f. to be released from detention if the interests of justice permit, subject to reasonable conditions.

Everyone who is detained, including every sentenced prisoner, has the right

to be informed promptly of the reason for being detained;
to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
to communicate with, and be visited by, that person's

spouse or partner;
next of kin;
chosen religious counselor; and

iv. chosen medical practitioner.

Every accused person has a right to a fair trial, which includes the right

to be informed of the charge with sufficient detail to answer it;
to have adequate time and facilities to prepare a defense;
to a public trial before an ordinary court;
to have their trial begin and conclude without unreasonable delay;
to be present when being tried;
to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to be presumed innocent, to remain silent, and not to testify during the proceedings;
to adduce and challenge evidence;
not to be compelled to give self-incriminating evidence;
to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

o. of appeal to, or review by, a higher court.

4. Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.

5. Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

36. Limitation of rights

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and

e. less restrictive means to achieve the purpose.

Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

37. States of emergency

A state of emergency may be declared only in terms of an Act of Parliament, and only when

the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

b. the declaration is necessary to restore peace and order.

A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only

prospectively; and

b. for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.

Any competent court may decide on the validity of

a declaration of a state of emergency;
any extension of a declaration of a state of emergency; or

c. any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that

the derogation is strictly required by the emergency; and
the legislation

is consistent with the Republic's obligations under international law applicable to states of emergency;
conforms to subsection (5); and
is published in the national Government Gazette as soon as reasonably possible after being enacted.

No Act of Parliament that authorizes a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorize

indemnifying the state, or any person, in respect of any unlawful act;
any derogation from this section; or
any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

Table of Non-Derogable Rights

1 Section Number	2 Section Title	3 Extent to which the right is protected
9	Equality	With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language
10	Human Dignity	Entirely
11	Life	Entirely
12	Freedom and Security of the person	With respect to subsections (1)(d) and (e) and (2)(c).
13	Slavery, servitude and forced labour	With respect to slavery and servitude
28	Children	With respect to: - subsection (1)(d) and (e); - the rights in subparagraphs (i) and (ii) of subsection (1)(g); and - subsection 1(i) in respect of children of 15 years and younger
35	Arrested, detained and accused persons	With respect to: - subsections (1)(a), (b) and (c) and (2)(d); - the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) - subsection (4); and - subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.

Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:

An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee's name and place of detention and referring to the emergency measure in terms of which that person has been detained.
The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.
The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.
A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.

h. The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.

7. If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.

Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

38. Enforcement of rights

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are -

anyone acting in their own interest;
anyone acting on behalf of another person who cannot act in their own name;
anyone acting as a member of, or in the interest of, a group or class of persons;
anyone acting in the public interest; and
association acting in the interest of its members.

39. Interpretation of Bill of Rights

1. When interpreting the Bill of Rights, a court, tribunal or forum 

a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

b. must consider international law; and

c. may consider foreign law.

2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognized or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

ATTACHMENT II

The Universal Declaration of Human Rights (UDHR)

Preamble

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

10 December 1948

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruelty, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Article 21

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

(1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

(1) Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30

ATTACMENT III

Interim Constitution of South Africa 1993

Schedule 4 – Constitutional Principles

[Schedule 4 as amended by s. 13 of Act 2 of 1994 and by s. 2 of Act 3 of 1994]

Principle

The Constitution of South Africa shall provide for the establishment of one sovereign state, a common South African citizenship and a democratic system of government committed to achieving equality between men and women and people of all races.

III

The Constitution shall prohibit racial, gender and all other forms of discrimination and shall promote racial and gender equality and national unity.

The Constitution shall be the supreme law of the land. It shall be binding on all organs of state at all levels of government.

The legal system shall ensure the equality of all before the law and an equitable legal process. Equality before the law includes laws, programmes or activities that have as their object the amelioration of the conditions of the disadvantaged, including those disadvantaged on the grounds of race, colour or gender.

There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.

VII

The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.

VIII

There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters' roll, and, in general, proportional representation.

Provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government.

Formal legislative procedures shall be adhered to by legislative organs at all levels of government.

The diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouraged.

XII

Collective rights of self-determination in forming, joining and maintaining organs of civil society, including linguistic, cultural and religious associations, shall, on the basis of non-discrimination and free association, be recognized and protected.

XIII

1. The institution, status and role of traditional leadership, according to indigenous law, shall be recognized and protected in the Constitution. Indigenous law, like common law, shall be recognized and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith.

2. Provisions in a provincial constitution relating to the institution, role, authority and status of a traditional monarch shall be recognized and protected in the Constitution .

[Constitutional Principle XIII substituted by s. 2 of Act 3 of 1994.]

XIV

Provision shall be made for participation of minority political parties in the legislative process in a manner consistent with democracy.

Amendments to the Constitution shall require special procedures involving special majorities.

XVI

Government shall be structured at national, provincial and local levels.

XVII

At each level of government there shall be democratic representation. This principle shall not derogate from the provisions of Principle XIII.

XVIII

1. The powers and functions of the national government and provincial governments and the boundaries of the provinces shall be defined in the Constitution.

2. The powers and functions of the provinces defined in the Constitution, including the competence of a provincial legislature to adopt a constitution for its province, shall not be substantially less than or substantially inferior to those provided for in this Constitution.

3. The boundaries of the provinces shall be the same as those established in terms of this Constitution.

4. Amendments to the Constitution which alter the powers, boundaries, functions or institutions of provinces shall in addition to any other procedures specified in the Constitution for constitutional amendments, require the approval of a special majority of the legislatures of the provinces, alternatively, if there is such a chamber, a two-thirds majority of a chamber of Parliament composed of provincial representatives, and if the amendment concerns specific provinces only, the approval of the legislatures of such provinces will also be needed.

5. Provision shall be made for obtaining the views of a provincial legislature concerning all constitutional amendments regarding its powers, boundaries and functions.

[Constitutional Principle XVIII substituted by s. 13 (a) of Act 2 of 1994.]

XIX

The powers and functions at the national and provincial levels of government shall include exclusive and concurrent powers as well as the power to perform functions for other levels of government on an agency or delegation basis.

Each level of government shall have appropriate and adequate legislative and executive powers and functions that will enable each level to function effectively. The allocation of powers between different levels of government shall be made on a basis which is conducive to financial viability at each level of government and to effective public administration, and which recognizes the need for and promotes national unity and legitimate provincial autonomy and acknowledges cultural diversity.

XXI

The following criteria shall be applied in the allocation of powers to the national government and the provincial governments:

1. The level at which decisions can be taken most effectively in respect of the quality and rendering of services, shall be the level responsible and accountable for the quality and the rendering of the services, and such level shall accordingly be empowered by the Constitution to do so.

2. Where it is necessary for the maintenance of essential national standards, for the establishment of minimum standards required for the rendering of services, the maintenance of economic unity, the maintenance of national security or the prevention of unreasonable action taken by one province which is prejudicial to the interests of another province or the country as a whole, the Constitution shall empower the national government to intervene through legislation or such other steps as may be defined in the Constitution.

3. Where there is necessity for South Africa to speak with one voice, or to act as a single entity- in particular in relation to other states- powers should be allocated to the national government.

4. Where uniformity across the nation is required for a particular function, the legislative power over that function should be allocated predominantly, if not wholly, to the national government.

5. The determination of national economic policies, and the power to promote interprovincial commerce and to protect the common market in respect of the mobility of goods, services, capital and labour, should be allocated to the national government.

6. Provincial governments shall have powers, either exclusively or concurrently with the national government, inter alia-

7. Where mutual co-operation is essential or desirable or where it is required to guarantee equality of opportunity or access to a government service, the powers should be allocated concurrently to the national government and the provincial governments.

8. The Constitution shall specify how powers which are not specifically allocated in the Constitution to the national government or to a provincial government, shall be dealt with as necessary ancillary powers pertaining to the powers and functions allocated either to the national government or provincial governments.

XXII

The national government shall not exercise its powers (exclusive or concurrent) so as to encroach upon the geographical, functional or institutional integrity of the provinces.

XXIII

In the event of a dispute concerning the legislative powers allocated by the Constitution concurrently to the national government and provincial governments which cannot be resolved by a court on a construction of the Constitution, precedence shall be given to the legislative powers of the national government.

XXIV

A framework for local government powers, functions and structures shall be set out in the Constitution. The comprehensive powers, functions and other features of local government shall be set out in parliamentary statutes or in provincial legislation or in both.

XXV

The national government and provincial governments shall have fiscal powers and functions which will be defined in the Constitution. The framework for local government referred to in Principle XXIV shall make provision for appropriate fiscal powers and functions for different categories of local government.

XXVI

Each level of government shall have a constitutional right to an equitable share of revenue collected nationally so as to ensure that provinces and local governments are able to provide basic services and execute the functions allocated to them.

XXVII

A Financial and Fiscal Commission, in which each province shall be represented, shall recommend equitable fiscal and financial allocations to the provincial and local governments from revenue collected nationally, after taking into account the national interest, economic disparities between the provinces as well as the population and developmental needs, administrative responsibilities and other legitimate interests of each of the provinces.

XXVIII

Notwithstanding the provisions of Principle XII, the right of employers and employees to join and form employer organizations and trade unions and to engage in collective bargaining shall be recognized and protected. Provision shall be made that every person shall have the right to fair labour practices.

XXIX

The independence and impartiality of a Public Service Commission, a Reserve Bank, an Auditor-General and a Public Protector shall be provided for and safeguarded by the Constitution in the interests of the maintenance of effective public finance and administration and a high standard of professional ethics in the public service.

XXX

1. There shall be an efficient, non-partisan, career-orientated public service broadly representative of the South African community, functioning on a basis of fairness and which shall serve all members or the public in an unbiased and impartial manner, and shall, in the exercise of its powers and in compliance with its duties, loyally execute the lawful policies of the government of the day in the performance of its administrative functions. The structures and functioning of the public service, as well as the terms and conditions of service of its members, shall be regulated by law.

2. Every member of the public service shall be entitled to a fair pension.

XXXI

Every member of the security forces (police, military and intelligence), and the security forces as a whole, shall be required to perform their functions and exercise their powers in the national interest and shall be prohibited from furthering or prejudicing party political interest.

XXXII

The Constitution shall provide that until 30 April 1999 the national executive shall be composed and shall function substantially in the manner provided for in Chapter 6 of this Constitution.

XXXIII

The Constitution shall provide that, unless Parliament is dissolved on account of its passing a vote of no-confidence in the Cabinet, no national election shall be held before 30 April 1999.

XXXIV

1. This Schedule and the recognition therein of the right of the South African people as a whole to self-determination, shall not be construed as precluding, within the framework of the said right, constitutional provision for a notion of the right to self-determination by any community sharing a common cultural and language heritage, whether in a territorial entity within the Republic or in any other recognized way.

2. The Constitution may give expression to any particular form of self-determination provided there is substantial proven support within the community concerned for such a form of self-determination.

3. If a territorial entity referred to in paragraph 1 is established in terms of this Constitution before the new constitutional text is adopted, the new Constitution shall entrench the continuation of such territorial entity, including its structures, powers and functions.

[Constitutional Principle XXXIV added by s. 13 (b) of Act 2 of 1994.]

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Monday 19 November 2012