Chapter 2 - Bill of Rights

Rights

7. (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.

Application

8. (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.

(3) When applying a provision of the Bill of Rights to a natural or

juristic person in terms of subsection (2), a court

(4) 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.

Equality

9. (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.

Human dignity

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

Life

11. Everyone has the right to life.

Freedom and security of the person

12. (1) Everyone has the right to freedom and security of the
person, which includes the right

(2) Everyone has the right to bodily and psychological integrity,

which includes the right

Slavery, servitude and forced labour

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

labour.

Privacy
14. Everyone has the right to privacy, which includes the right
not to have

Freedom of religion, belief and opinion

15. (1) Everyone has the right to freedom of conscience, religion,

thought, belief and opinion.

(2) Religious observances may be conducted at state or state-

aided institutions, provided that

(3)

i marriages concluded under any tradition, or a system of

religious, personal or family law; or

ii systems of personal and family law under any tradition, or

adhered to by persons professing a particular religion.

Freedom of expression

16. (1) Everyone has the right to freedom of expression, which

includes

(2) The right in subsection (1) does not extend to

Assembly, demonstration, picket and petition

17. Everyone has the right, peacefully and unarmed, to assemble,

to demonstrate, to picket and to present petitions.

Freedom of association

18. Everyone has the right to freedom of association.

Political rights

19. (1) Every citizen is free to make political choices, which

includes the right

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

Citizenship

20. No citizen may be deprived of citizenship.

Freedom of movement and residence

21. (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.

Freedom of trade, occupation and profession

22. 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.

Labour relations

23. (1) Everyone has the right to fair labour practices.

(2) Every worker has the right

(3) Every employer has the right

(4) Every trade union and every employers' organisation has the
right

(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).

Environment

24. Everyone has the right

i prevent pollution and ecological degradation;

ii promote conservation; and

iii secure ecologically sustainable development and use of

natural resources while promoting justifiable economic and social
development.

Property

25. (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.

(2) Property may be expropriated only in terms of law of general

application

or in the public interest; and

(3) 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

(4) For the purposes of this section

(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).

(9) Parliament must enact the legislation referred to in

subsection (6).

Housing

26. (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.

Health care, food, water and social security

27. (1) Everyone has the right to have access to

(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.

Children

28. (1) Every child has the right

i are inappropriate for a person of that child's age; or

ii place at risk the child's well-being, education, physical or

mental health or spiritual, moral or social development;

i kept separately from detained persons over the age of 18

years; and

ii treated in a manner, and kept in conditions, that take

account of the child's age;

(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.

Education

29. (1) Everyone has the right

(2) 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

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

(4) Subsection (3) does not preclude state subsidies for

independent educational institutions.

Language and culture

30. 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.

Cultural, religious and linguistic communities

31. (1) Persons belonging to a cultural, religious or linguistic

community may not be denied the right, with other members of
that community

(2) The rights in subsection (1) may not be exercised in a manner

inconsistent with any provision of the Bill of Rights.

Access to information

32. (1) Everyone has the right of access to

(2) 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.

Just administrative action

33. (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

Access to courts

34. 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.

Arrested, detained and accused persons

35. (1) Everyone who is arrested for allegedly committing an
offence has the right

i of the right to remain silent; and

ii of the consequences of not remaining silent;

i 48 hours after the arrest; or

ii 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;

(2) Everyone who is detained, including every sentenced

prisoner, has the right

i spouse or partner;

ii next of kin;

iii chosen religious counsellor; and

iv chosen medical practitioner.

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

(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.

Limitation of rights

36. (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

(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.

States of emergency

37. (1) A state of emergency may be declared only in terms of an

Act of Parliament, and only when

(2) A declaration of a state of emergency, and any legislation

enacted or other action taken in consequence of that declaration,
may be effective only

(3) Any competent court may decide on the validity of

(4) 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

i is consistent with the Republic's obligations under

international law applicable to states of emergency;

ii conforms to subsection (5); and

iii is published in the national Government Gazette as soon as

reasonably possible after being enacted.

(5) No Act of Parliament that authorises a declaration of a state

of emergency, and no legislation enacted or other action taken in
consequence of a declaration, may permit or authorise

Table of Non-Derogable Rights

1 2 3
Section Section Title Extent to which the right is
Number 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 Entirely
Dignity

11 Life Entirely

12 Freedom and With respect to subsections

Security of (1)(d) and (e) and (2)(c).
the person

13 Slavery, With respect to slavery and

servitude and servitude
forced labour

28 Children With respect to:

Ø subsection (1)(d) and (e);

Ø the rights in
subparagraphs (i) and (ii) of
subsection (1)(g); and

Ø subsection 1(i) in respect

of children of 15 years and
younger

35 Arrested, With respect to:

detained and
accused Ø subsections (1)(a), (b) and
persons (c) and (2)(d);

Ø the rights in paragraphs

(a) to (o) of subsection (3),
 excluding paragraph (d)

Ø subsection (4); and

Ø subsection (5) with respect

to the exclusion of evidence if
the admission of that evidence
would render the trial unfair.

(6) 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:

(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.

(8) 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.

Enforcement of rights

38. 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 -

Interpretation of Bill of Rights

39. (1) When interpreting the Bill of Rights, a court, tribunal or

forum

(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 recognised or conferred by common
law, customary law or legislation, to the extent that they are
consistent with the Bill.