Summary of the Constitution of South Africa, no. 108 of 1996
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constituton as the supreme law of the Republic so as to:
- Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
- Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
- Improve the quality of life of all citizens and free the potential of each person; and
- Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika.
Morena boloka setjhaba sa heso.
God seen Suid-Afrika.
God bless South Africa.
Mudzimu fhatutshedza Afrika.
Hosi katekisa Afrika.
 Founding Provisions
 Section 1: Values
The Republic of South Africa will be one, sovereign, democratic state founded on the following values:
- human dignity, equality, advancement of human rights and freedoms;
- non-racialism and non-sexism;
- the Constitution will be supreme;
- the rule of law will be supreme;
- all adults will be able to vote;
- there will be a common voter's roll;
- there will be regular elections; and
- there will be a multi-party system of democratic government to make sure there is accountability and openness.
 Section 2: The Constitution
The Constitution is the highest law in the law in the country and everyone will be bound by the Constitution. Any laws that go against the Constitution will be changed or set aside.
 Section 3: Citizenship
All South Africans are South African citizens. Every citizen is equal and has a right to the rights and privileges of being a citizen of South Africa. Everyone also has duties, obligations and responsibilities of being a citizen of South Africa.
 Section 4: The National Flag
The national flag will be black, gold, green, white, red and blue.
 Section 5: The National Anthem
The national anthem will be decided by the President.
 Section 6: The Official Languages
There are 11 official languages. These are: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.
A Pan-South African Language Board must promote the use of all official languages, the Khoi, Nama and San languages, and sign language. It must promote and respect other languages used in South Africa, such as Arabic, German, Greek, Gujarati, Hebrew, Hindi, Portuguese, Sanskrit, Tamil, Telegu, Urdu and other languages used for religious purposes.
 The Bill of Rights
 Section 7: Introduction
Chapter 2 contains the human rights which will be protected in South Africa. These are put in the Constitution for these reasons:
- to make them law so that people can use them in court to protect themselves;
- to make them difficult to change;
The Bill of Rights can only be changed by a Bill passed by:
- the National Assembly, if at least two-thirds (66%) of the members of Parliament vote for it, AND
- the National Council of Provinces, if at least 6 provinces vote for it.
Section 7 also says the government must respect, protect, promote and fulfill the rights in the Bill of Rights.
 Section 8: Application of the Bill of Rights
The Bill of Rights applies to all laws. It must be followed by all branches of government and all government bodies. This means it must be followed by:
- the legislatures (bodies that make laws);
- the executive (bodies that carry out the laws); and
- the judiciary (the courts)
It must be followed by these government bodies at all levels, in other words, National, Provincial and Local government level.
The Bill of Rights applies to all matters between citizens and the Government. This means it applies in a vertical way between government and citizens. It protects citizens from things done to them by the government.
The Bill of Rights also works in a horizontal way. This means it applies to matters between ordinary people or businesses, but only if this makes sense. It protects people from things done to them by other people.
 Section 9: The right to equality
1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
Being equal before the law means all laws may not unfairly discriminate against anyone. Everyone is entitled to equal rights and freedoms. This also means there should be equal representation on legislative bodies (in other words, bodies that make our laws). In this way we can make sure that all the different needs of the people of the country are shown in the laws.
The right to 'equal protection before the law' means people have a right to the same opportunities and to have equal access to resources, which would allow them to be equal in the future.
2. The government must take active steps to change the inequalities of the past.
The government must make laws that provide benefits for people who continue to suffer from inequalities as a result of past laws. This is called affirmative action.
3. It is against the law to discriminate against anyone on any of the following grounds:
- race and colour
- sexual orientation: being gay, lesbian or heterosexual
- marital status: being single, married or divorced
- gender: social and cultural male or female roles (for example, where a woman can't get a certain job just because she is a woman) sex: physical differences between men and women (for example, a woman is discriminated against because she is pregnant)
- ethnic origin: being from a particular background, such as a clan or language group
- culture: having a shared culture and traditional practices
- religion, conscience, belief
4. No person can unfairly discriminate against another person, directly or indirectly, on any of the grounds under (3).
The government must pass laws that will prevent or stop unfair discrimination. The Promotion of Equality and Prevention of Unfair Discrimination Act (passed in February 2000) says what discrimination is against the law in different areas of society. The Act also says how people who have been discriminated against can be compensated, for example by being paid money.
The prohibition against unfair discrimination is divided into sectors.
The Act defines each sector and says what discrimination is not allowed in each sector. If someone is charged with unfair discrimination it is up to the person who is doing the discriminating (not the person discriminated against) to prove that the discrimination was reasonable and justifiable.
The Act says Equality Courts in each province will become part of a magistrate's court. These courts can hear cases of discrimination and have powers to conciliate and mediate, grant interdicts, order payment of damages or order a person to make an apology.
5. Discrimination on any of these grounds is unfair unless the person or state can say why it is fair.
 Section 10: The Right to Human Dignity
Everyone has dignity and the right to have their dignity respected and protected.
 Section 11: The Right to Life
Everyone has the right to life.
The Criminal Procedure Act includes the right for police (or someone entitled to make an arrest) to "shoot to kill" in certain situations. Section 49(1) of the Act deals with the use of force to carry out an arrest. Section 49(2) says that "deadly force" may be used in certain circumstances to carry out an arrest.
This has been interpreted as follows: A person making an arrest is not entitled to use a firearm in the process unless:
- the suspect is threatening to harm the person arresting him or her or someone else, or
- the suspect is suspected of having committed a serious crime involving or threatening harm to a person.
The death penalty The debate about the death penalty is based on the right to life, and the right not to be treated or punished in a cruel, inhuman or degrading way (section 12).
The Constitutional Court has said that the death penalty goes against a person's right to life. So, a court cannot pass the death sentence against anyone.
Termination of pregnancy (abortion) The debate about abortion is based on the right to life, and the right for women to make decisions about reproduction (having children) and to have control over their own bodies (Section 12).
Parliament has passed a law called the Choice on Termination of Pregnancy Act. Up to a certain stage of pregnancy, women can now choose to end a pregnancy. Government hospitals should provide facilities to carry this out.
 Section 12: Freedom and security of the person
This includes the following rights:
- not to be put in prison without good reason;
- not to be detained without trial;
- to be free from all kinds of violence in both public and private areas;
- not to be treated or punished in a cruel, inhuman or degrading way. Torture is not allowed.
- to make decisions about reproduction (having children);
- to have control over our own bodies;
- not to be forced to have medical or scientific experiments done on people.
Violence and abuse in the home Everyone has the right to be free from all forms of violence in the home. This right ensures that the government and the police must take measures to prevent domestic violence, for example, abuse of women and children in the home.
Corporal punishment This means giving beatings or whippings for punishment. The Constitutional Court has decided that punishing people and children by whipping them or giving them a caning goes against this right.
The Abolition of Corporal Punishment Act (1998) says beating a child as a form of punishment is illegal because it goes against a child's right to dignity and his/her right not to be treated in a degrading way.
 Section 13: Slavery, Servitude and Forced Labour
No form of slavery or forced labour is allowed.
 Section 14: Right to Privacy
Everyone has the right to privacy, including the right not to:
- be body-searched without a court order;
- have your home searched without a court order;
- have your things taken from you;
- have your letters opened or your telephoned tapped.
 Section 15: Freedom of Religion, Belief and Opinion
Everyone has the right to believe or think what they want, even if their opinion is different to the government. Everyone has the right to practise the religion they choose.
Government institutions, like schools, can follow religious practices (like having prayers in the morning) but this must be done fairly and people cannot be forced to attend them.
A person can also get married under the laws of their religion. But these cannot go against the Bill of Rights. For example, a woman who marries according to customary law does not lose her rights of equality when she gets married.
 Section 16: Freedom of Speech and Expression
Everyone has the right to say what they want, including the press and other media.
There are certain kinds of speech that are not protected. These are:
- propaganda for war;
- inciting (encouraging) people to use violence;
- hate speech.
 Section 17: Freedom of Assembly, Demonstration, Picket and Petition
Everyone has the right to assemble with other people, hold a demonstration, picket or present petitions. They must do this in a peaceful way and they may not carry weapons.
 Section 18: Freedom of association
Everyone has the right to associate with whoever they want, for example, workers joining together and meeting in a trade union.
 Section 19: Political rights
Everyone has the right and is free to make political choices, such as the right to:
- form a political party;
- join any political party;
- encourage other people to join a political party;
- campaign for a political party or cause.
Every adult citizen has the right to free, fair and regular elections. They have the right to:
- vote in these elections;
- vote in secret in elections;
- stand for election.
 Section 20: Citizenship
A person's citizenship is protected and cannot be taken away from you.
 Section 21: Freedom of movement and residence
Everyone has the right to:
- move anywhere in South Africa
- leave South Africa if they choose
Every citizen has the right to:
- enter South Africa and stay there;
- live anywhere in South Africa;
- have a passport.
 Section 22: Freedom of trade, occupation and profession
Every citizen has the right to choose their trade, occupation or profession freely. Laws can be passed to regulate how people practise their trade, occupation or professions.
 Section 23: Labour relations
Everyone has the right to fair labour practices. Workers have the right to:
- form and join trade unions;
- join in the activities and programmes of the trade union;
Employers have the right to:
- form and join employers' organisations;
- join in the activities and programmes of the employers' organisation;
Trade unions and employers' organisations have the right to:
- make decisions about their own administration, programmes and activities;
- form and join a federation; and
- engage in collective bargaining.
The right to strike and lock-out The right for workers to strike is written in the Constitution. The right for employers to lock out their workers is not included in the Constitution. But, this does not mean that employers do not have the right to lock-out. The Labour Relations Act says that employers have the right to lock-out in certain situations.
 Section 24: Environment
Everyone has the right to:
- an environment that is not harmful to their health or well-being;
- have the environment protected for present and future generations.
The government must pass laws that:
- prevent pollution and damage to our natural resources;
- promote conservation; and
- make sure that natural resources are developed while also promoting the economic and social development of people.
 Section 25: Property
No one can have their property taken away from them unless this is done according to a law (e.g., legally expropriating private property).
Land Reform Section 25 also deals with land reform. It says the government must make laws and take other steps, to help people or communities to get land to live on, and to claim back land, if they lost it after 1913 and they lost it because of an apartheid law. Up to December 1998, in such cases people were able to claim the land back or compensation for the land.
Labour tenants If a person has been living on land which they were not allowed to own because of apartheid laws, they will now be able to own this land or be paid compensation for it. An example of this is people who live on farms as labour tenants. The Extension of Security of Tenure Act has been passed by the government which gives labour tenants certain rights in terms of Section 25.
 Section 26: Right of Access to Housing
Everyone has the right to have access to adequate housing. The government must take reasonable steps within its available resources to provide people with housing and access to land.
Section 26 says the government must take steps to provide housing "within its available resources". This means the government has a duty to provide what it can afford.
Evictions No one can be evicted from their home or have their home demolished, unless a court has heard the person's case and decided that he or she must leave. In this case the court must give a court order.
 Section 27: Right of access to health care, food, water and social security
Everyone has the right to have access to:
- health care services (including child birth facilities);
- enough food and water; and
- social security (which means support for people who can't support themselves or their dependants).
The government must pass laws and have policies that provide welfare assistance for the people who need it the most.
Section 27 says the goverment must take steps "within its available resources". This means the government must only provide what it can afford. But, the section says the government must improve these services over time.
Emergency medical treatment Everyone is allowed to have emergency medical treatment.
 Section 28: Children's rights
A child is anyone who is under the age of 18. Every child has the right:
- to a name and a nationality from the day they are born;
- to proper care by parents or a family member, or by someone else if the child has to be taken away from the family;
- to enough food, shelter, basic health care and social services;
- to be protected from being mistreated, neglected or abused;
- not to be forced to work or given work which is not suitable for a child;
- to have a lawyer paid for by the government, if the child has to appear in court;
- not to be used in wars;
- to be protected during times of war.
Whenever a decision is made about a child, the most important thing that must be thought about is what would be in the best interests of the child.
A child may only be detained if it is absolutely necessary, and it must be for the shortest possible time. A child has the right to be kept separately from other detained people who are over 18. The child must be treated and kept in conditions that take into account the child's age. A detained child also has all the rights of any other detained person.
 Section 29: Education
Everyone has the right to:
- a basic education, including adult basic education; and
- further education, which the government must make available and accessible.
Everyone has the right to be taught at a government school in their own language but only if this is practical and if the government can afford it.
The government must take steps, for example by passing laws, that will help people who want further education.
 Section 30: Language and culture
Every person has the right to use their own language and follow the culture that they choose. A person has the right to enjoy their culture, use their language and form their own cultural associations in civil society. But they cannot do anything that goes against the rights that other people have.
 Section 31: Cultural, religious and linguistic communities
Communities have the right to enjoy a shared culture, practise a shared religion and use their language. But they cannot do anything that goes against the rights that other people have.
 Section 32: Access to information
Everyone has the right to have access to:
- information which the government has; and
- information that someone else has if they need it to protect any of their rights.
 Section 33: Just administrative action
This protects people against unlawful, unjust and unreasonable decisions from government officials or departments.
The government official or department must give a person written reasons for decisions that are made which affect that person.
The government must pass laws that will put this right into practice. These laws must:
- provide for the review of the actions of the government official (or department). This means a court of law or an independent body must decide whether the action did go against a person's rights.
- make it a duty of the government and all government bodies to put this right into practice, be just and promote an efficient administration.
The Promotion of Administrative Justice Act has been passed. Under the Act all decisions of every administration at every level of government will have to comply with the rules that are in the Act. All decisions made by government officials and departments will have to be lawful, procedurally fair and reasonable. The Act applies to all government bodies and private people who exercise public powers or perform public functions.
 Section 34: Access to courts
Everyone has the right to have any legal problem or case decided by a court or an independent body.
 Section 35: Arrested, detained and accused persons
Arrested people, detained people and accused people have specific rights.
|Arrested People||Detained People||Accused People|
|If a person is arrested, they have the following rights:
||If a person is detained (kept in jail or a police cell), either while they are waiting for their trial, or after they have been sentenced, they have the right to:
||A person accused of committing a crime must be given a fair trial. This includes the right to:
If the state gets evidence against a person by going against one of their rights, this evidence will not be allowed in court.
 Section 36: Limitations on rights
The rights in the Bill of Rights can be limited if this is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom.
These are the factors that a person or court must taken into account if a right is to be limited:
- the nature of the right;
- the importance of the purpose of limiting the right;
- how much the right will be limited;
- the relation between the limitation and its purpose;
- whether there are better ways to achieve the same purpose.
 Section 37: States of emergency
It may be necessary for a government to declare a state of emergency to deal with a major problem facing the country. During a state of emergency the Bill of Rights is usually affected. The government can only call a state of emergency when:
- the life of the nation is threatened by war, invasion, disorder, natural disaster or other public disorder, AND
- the state of emergency is necessary to restore peace or order.
The state of emergency and any laws passed as a result of the state of emergency can only last for 21 days, unless the National Assembly extends this. At least two-thirds (66%) of the members of the National Assembly must agree to extend this. They can extend it for 3 months at a time.
There are certain rights that cannot be limited at all, even during a state of emergency.
 Section 38: Enforcing rights
The following people can take a case to court, if they believe that a right has been threatened or infringed:
- anyone representing themselves;
- anyone acting on behalf of another person who cannot take the case to court;
- anyone acting as a member of a group, or in the interests of a group or class of people;
- anyone acting in the public interest;
- an association acting in the interests of its members.
 Section 39: Interpreting the Bill of Rights
When the courts are deciding a case on the Bill of Rights, they must promote the values of an open and democratic society based on freedom and equality. They must look at international laws (such as the Universal Declaration on Human Rights) and at the way courts in other countries have decided similar cases.
 Co-operative government
Government works at national, provincial and local levels.
All spheres of government must:
- keep the peace and national unity of South Africa;
- look after the well-being of the people of South Africa;
- be effective, transparent and accountable to the Republic as a whole;
- be loyal to the Constitution and to South Africa;
- respect the status, institutions, powers and functions of government in other areas;
- not take on powers that the Constitution doesn't give them;
- use their powers and perform their functions in a way that doesn't interfere with government in another area; and
- co-operate with each other by assisting, supporting, consulting with each other on things of common interest.
Chapter 4 looks at:
Parliament is also called the national legislature. Parliament makes laws for the country. These laws must not conflict with the Constitution and all citizens must follow them. Parliament has 2 houses: the National Assembly and the National Council of Provinces. Click on each to find out about how they are made up.
A bill is a draft law that has not been passed by Parliament. An Act is a law that has been passed by Parliament.
A bill can be introduced in the National Assembly. A Cabinet member or Deputy Minister, a parliamentary committee, or a member of the National Assembly can introduce a bill to Parliament. The National Council of Provinces (NCOP) can introduce a bill if it is about something that falls under the powers of the provinces.
A bill that is passed in the National Assembly must be referred to the NCOP. A bill passed in the NCOP must be referred to the National Assembly.
These are the general rules about how a bill becomes an act:
What happens if a Bill is, or might be, unconstitutional?
Members of the National Assembly can apply to the Constitutional Court for an order to declare that all or part of an Act of Parliament is unconstitutional. At least one third of the members of the National Assembly must support this application. The application must be made within 30 days of the date on which the President signed the Act.
If the President thinks a bill goes against the Constitution, the President can refuse to sign it and send it back to Parliament for them to look at it again.
If Parliament makes the changes suggested by the President, the President must sign the bill.
If Parliament does not make these changes, the President can either sign the bill or send it to the Constitutional Court, for the Court to say whether or not the law goes against the Constitution.
If the Constitutional Court is satisfied with the bill, the President must sign it.
If the Constitutional Court is not satisfied with the bill, it will be sent back to Parliament. Parliament can either change the bill or let it fall away.
 The President and the national executive
The national executive is the body which puts the laws written by Parliament into action. The executive cannot make new laws. The national executive is called the Cabinet. The Cabinet consists of the President, the Deputy President and ministers.
The President The President is the head of state, head of the Cabinet and Commander-in-chief of the Defence Force.
The President is elected by the National Assembly from among its members.
The Cabinet The Cabinet consists of the President, the Deputy President, and all the ministers, for example, the Minister of Education, the Minister of Health, and so on. Each minister has a government department that he or she is in charge of.
The President selects and appoints the Deputy President and the ministers in the Cabinet. The President can also appoint Deputy Ministers to assist members of the Cabinet. The President can dismiss any of these people he or she has appointed.
The Deputy President and the ministers are all accountable to the President and to Parliament. The executive has to follow the policies of the government. For example, the Minister of Education and his or her department must carry out all the laws that Parliament makes about education and must carry out the policies of the government on education. The different departments can refer bills to Parliament to have them made into laws.
There are 9 provinces:
- Eastern Cape
- Free State
- Northern Cape
- Northern Province
- North West
- Western Cape
Powers of the provinces Provincial governments have certain powers to make decisions for their provinces. Provinces can make their own constitutions and their own laws, but these must follow the national Constitution.
National and provincial government share powers to make laws about some issues, like health, welfare and education. National government is responsible for setting national standards on these issues, so laws written by provinces must follow national standard-setting legislation.
 Local government
Local governments make decisions and laws for their own municipal areas. Municipal councils carry out the executive and legislative functions of local government. Local governments make by-laws, but these must not go against the Constitution or any act of Parliament or any provincial ordinance.
Who can vote in local government elections? Municipal councils are elected every 5 years in local elections. People who can vote must live in the area covered by the local government or own property in the area, and they must be registered as a voter in the area. Powers of local government
Local governments have the right to administer the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5, and any other matter referred to them by national or provincial laws.
 Courts and administration of justice
The Constitution says the courts are independent. This means that the national executive and Parliament cannot interfere in what the courts do. Everyone, including the government, must follow the decisions of the courts.
The courts are:
Any court can hear a case about the Constitution, including cases about abuses of rights. Courts can do the following:
The Supreme Court of Appeal and the High Courts can make an order about how unconstitutional a law is. But they can only provide 'temporary relief' until the case goes to the Constitutional Court. Only the Constitutional Court can confirm that it is unconstitutional and therefore invalid.
|How judges are chosen
The President consults the Judicial Services Commission and leaders of parties in the National Assembly. The President then appoints the President and Deputy President of the Constitutional Court, and the Chief Justice. The Judicial Services Commission is made up of the following people:
The Constitution says there will be 7 government institutions to protect people from abuse by the government. They are referred to as the protection mechanisms. It is their job to make sure that the government does its work properly.
Protecting human rights These institutions are independent and report to Parliament at least once a year. They are:
- The Public Protector
- South African Human Rights Commission (SAHRC)
- The Commission on Gender Equality (CGE)
- The Auditor-General
- The Independent Electoral Commission (IEC)
- The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (Cultural Commission)
- The Independent Communications Authority of South Africa (ICASA)
The Land Claims Commission has been set up to protect people's land rights under Section 25 of the Bill of Rights.
 Public administration
Public adminstration refers to people who work for the government, also called the public service. This includes the police, army and people who get a salary from the government, including all the government departments such as the Department of Education.
The public service The public service must put the policies of the government into practice. People who work in the public service will get a pension. Employees of the public service cannot be treated better or worse than others just because they support a political party.
The Public Administration Commission This is an independent body. It is made up of one representative from each province and it must account to Parliament. Its job is to monitor, evaluate and oversee the organisation and administration of the public service. For example, it investigates grievances of employees in the public service, it ensures that public officials follow correct procedures, and so on.
 Security services
The security services will consist of one defence force, a police service and an intelligence service. No other army apart from the South African army will be allowed. National security is controlled by parliament and the national executive.
The security services must follow the law and the Constitution and any international documents signed by South Africa. They are there to protect the people and the country. They are not allowed to act for or against a political party.
 Traditional authorities
The Constitution recognises traditional leaders and indigenous or customary law. It says the courts can apply customary law if it is appropriate in a case. But, customary laws cannot go against the Constitution. For example, a customary law that goes against the Bill of Rights will not be acceptable in a court.
The Constitution establishes a National Council of Traditional Leaders and Provincial Councils of Traditional Leaders. These councils allow traditional leaders to play an advisory role on matters relating to traditional leaders and customary law in national and provincial governments.
 Chapter 13: Finance
|The National Revenue Fund
The Constitution sets up a National Revenue Fund. All money raised by the national government must go into this Fund, for example taxes, fines and donations. Parliament and provincial governments get their money from this Fund.
The Financial and Fiscal Commission
This Commission is an independent body, that is subject only to the Constitution and the law. It must not be biased in its work. It can advise and make recommendations to any level of government about how to spend their money. It can also give advice about how much money should go to provincial and local governments. It must follow all laws and the Constitution.
 General provisions
International agreements only become law in South Africa once they are made law by an act of Parliament and they are published in the Government Gazette.
|How taxes are budgeted
The government gets taxes and levies from people who work (income tax), from companies and from VAT (the tax that people pay on goods that they buy). This money goes into the National Revenue Fund.
The Minister of Finance and the Department of Finance prepare the budget for the country. The national budget says how the money in the National Revenue Fund will be allocated.
The Finance and Fiscal Commission advises the government on how much money should be allocated to the provincial and local governments.
The budgets are debated in Parliament. Parliament can approve or reject how the money will be allocated.
The money that has been budgeted for the different departments, such as housing, education, environment, is given to these departments.