1.
Introduction
This is the discussion about the changes brought by the Constitution of South Africa of
1996(Hereinafter, the Constitution) in regard to human rights. The Constitution is the
supreme law of South Africa and every law or conduct inconsistent with it is invalid. The
Constitution contains the Bill of Rights in chapter 2 which outlines fundamental human
rights and freedom for all citizens. It affirms values like human dignity, equality and
freedom. South Africa is a member state of the United Nations (UN), therefore, human
rights can be said to have been adopted from the UN through treaties signed by South
Africa. As we discuss these changes, we will also discuss (where necessary) the pros and
cons brought by these changes. In this discussion the source of our information will
mostly be the Constitution, case law and personal observation.
2. A Brief History of South Africa Before The Constitution and Human Rights
In order to make sense of the changes brought by the Constitution in regard to human
rights, it is important to discuss a brief history of South Africa so that we can understand
the context of this discussion.
In 1652 when South Africa was colonized by white Europeans, they brought their laws
and disregarded aboriginals laws and customs and later separated aboriginals into
Bantustans. The decisions of this country were made without them and also had no rights.
This led to them being exploited for labour, excluded from the economy and not receiving
quality education. This became worse after 1948 when apartheid became official. After
apartheid we had our first democratic Constitution called the Interim Constitution or
Constitution of the republic of South Africa Act 200 of 1993 and later followed by the
Constitution of South Africa of 1996. These Constitutions led to the enactment of the
legislations that will be later discussed below.
3. Equality and Non-discrimination
Section 9 of the Constitution (1996) gives a right to equality and non-discrimination,
which mean everyone is equal before the law and has the right to equal protection and
benefit of the law. As a result of this section, everyone can be guaranteed to enjoy equal
benefits of the law regardless of their skin colour, gender, race etc. This section can be
said to be the backbone of the Constitution, since the entire Constitution is based on
equality, dignity and freedom.
This section has served its purpose in the lives of South Africans as blacks can now have
fair trials in courts even if they are disputing against a white person. The blacks can now
receive the same quality education as whites.
Though this section has achieved its intended purposes, some would argue that it has also
brought about the unintended consequences. Section 9 (3) of the Constitution states that
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. As a result of this section, people can now marry or get married by
someone of their some sex. This change took place when a judgment was handed down
when it was declared that the common-law definition of marriage as being between a man
and a woman was unconstitutional and discriminatory (Minister of Home Affairs v
Fourie, 2005). It is evident that same sex marriage is a controversial topic in South Africa
and in Africa as a whole.
4. Slavery, Servitude and Forced Labour
Section 13 of the Constitution (1996) states that no one may be subjected to slavery,
servitude of forced labour. This is a significant relief to blacks who were previously
exploited by whites for their labour for a very little pay and without rights. This led to the
enactment of Labour Relation Act, No 66 (1995) and Basic Condition of Employment
Act, No 75 (1997). The Labour Relation Act’s (LRA) aim is to promote fair labour
practices; it regulates collective bargaining and establishes dispute resolution mechanisms
on labour related matters. The Basic Conditions of Employment Act (BCEA) on the other
hand seeks to promote employees’ rights, regulates working conditions and promote fair
labour practices. These legislations ensured that labour is not forced and the practices are
also fair.
5. Labour relations