Human Rights

Human Rights

Generations of Rights
1. 1st
  1. Shield to protect against state authority; guarantee freedom from unlawful interference from the state.
  2. Vertical; civil & political - right to life, freedom of speech, of association and religious freedom.
  3. Blue rights
2. 2nd
  1. Socio-economic rights; do not require the state to refrain from doing something, but to take positive action. Sword against the state
  2. Claim to resources from the state; right to housing, medical service, education and work; not always enforceable (resources).
  3. Red rights
3. 3rd
  1. Rights pertaining to groups. Right to healthy living environment, right to development & self-determination.
  2. Green rights
4. All rights are interrelated, interdependent, & indivisible. Respect, protect, fulfil.
Bill of Rights
1. Chapter 2 of Const. Any legislation/conduct interfering with BOR may be declared unconstitutional.
2. Total of 27 sections containing rights; civil & political rights
3. Children are afforded special protection: S28(2) child's best interests.
Bearers & duty-holders
1. All persons in S.A. are bearers. Class action (group); also public interest.
2. Juristic persons are entitled to rights in BOR in certain instances, if the nature of the juristic person allows it.
3. Against whom?
  1. BOR has full vertical application (claim btw individual & the state).
  2. BOR may bind non-state actors (indiv.) - full horizontal application against another person.
  3. Natural/juristic persons are bound by the BOR to the extent that it is applicable for them to be bound thereby.
  4. S9 always horizontally applicable. S9(4): no person may discriminate unfairly against anyone.
Remedies for human rights violations
1. Invalidation
  1. Statute found unconstitutional; suspension for fixed period (provide Parliament to re-enact statute).
2. 'Reading in'
  1. Invalidation of statutory provision may be restricted in respect to substance if court orders certain words/phrases must be 'read into' the statute to rectify its unconstitutionality.
3. Declaration of rights
  1. Not often; don't get anything out
4. Award of damages
  1. Compensate for unconstitutional conduct, e.g. De Vos case, 2004
5. Interdict
  1. Mandatory: compel government/violator to take steps to remedy violation.
  2. Prohibitory: Prevent the violator from acting in an unconstitutional way.
  3. Structural/supervisory: Court orders interdict and plays role in supervising compliance with the terms of the interdict.
Impact of BOR on SA law
1. Death penalty: S v Makwanyane [1995], declared unconstitutional, conflict with right to life, and prohibition against cruel, inhuman, degrading punishment. Death penalty can no longer be imposed/carried out.
2. Corporal punishment: S v Williams [1995], no longer possible, conflicts with constitutional rights & values.
3. Criminal trials, state has to prove against accused beyond reasonable doubt. Some statutes created exceptions by reversing the onus. Thus, guilt presumed unless proven innocent. E.g. Drugs and Drug Trafficking Act 140 of 1992; Accused in possession of more than 115g dagga, assumed to be dealing with dagga (more serious). Declared unconst. in S v Bhulwana [1996].
4. S10 of South African Schools Act prohibits corporal punishment. Christian association brought application to declare unconstitutional (prohibiting conduct at independent schools). CC found S10 to be justifiable limitation to right to freedom of religion. Application failed.

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	Created by u11030870 over 10 years ago