Fundamental Rights
Study unit 1 – Introduction to the Constitution and the Bill of
Rights
1.1. Basic Principles
A number of basic principles underlie the new constitutional order. They are the following:
Democracy, supremacy of the Constitution and the rule of law, which are enshrined in the text of the
Constitution.
Constitutionalism, separation of powers, and check and balances, which are implicit in the text of the
Constitution.
Fundamental rights, which are entrenched in the Bill of Rights (chapter 2 of the Constitution).
These principles are basic in the sense that any law or conduct inconsistent with them may be declared invalid.
They tie the provisions of the Constitution together and shape them into a framework than defines the new
constitutional order. They influence the interpretation of many other provisions of the Constitution, including the
provisions of the Bill of Rights.
1.1.1. Constitutionalism
Constitutionalism is the theory of constitutional law. In its modern form, constitutionalism is a body of theoretical
prescriptions. It prescribes what a constitutional and constitutional law should do, as opposed to simply describing
what a particular constitution does. The particular version of constitutionalism that informs the South African
Constitution prescribes that a constitution must structure and constrain state power. The constitution must
ensure that the state has enough power to govern, but at the same time the state’s power must be limited by the
constitution to ensure that it does not violate the law or the human rights of its citizens.
The essence of the doctrine is that the power of the state should be defined and limited by law to protect the
interests of society. Constitutionalism is a way of ensuring limited government as opposed to the arbitrary rule of
an autocracy or a dictatorship.
The principle of limitation applies in two ways: first, in restricting the range of things that the various organs of
state can do, and secondly, in prescribing the procedures they must follow in doing those things within their
competence.
Second, principally through the operation of a Bill of Rights, substantive limitations are imposed. The state may
not use its power in such a way as to violate any of a list of fundamental rights and has a corresponding duty to
use its power to protect and promote the rights. But neither of these limitations on state power will be effective
without three associated principles of law: constitutional supremacy, justiciability and entrenchment. The first
principle, constitutional supremacy, dictates that the rules and principles of the Constitution are binding on all
branches of the state and have priority over any other rules made by the government, the legislatures or the
courts. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive
reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of
constitutional supremacy. It states that the ‘Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. Section 8 provides that the Bill
,of Rights has supremacy over all forms of law and that the Bill of Rights binds all branches of the state in addition
to, in certain circumstances, private individuals.
Constitutional supremacy would mean little if the provisions of the Constitution were not justiciable. For a
supreme constitution to be effective the judiciary must have the power to enforce it. Section 172 provides that,
provided that it has the jurisdiction to do so, a court ‘must declare that any law or conduct that is inconsistent
with the Constitution is invalid to the extent of its inconsistency’. Court orders must be obeyed by the other
branches of the state: according to s165 (5) an ‘order or decision issued by a court binds all persons to whom and
organs of state to which it applies’.
Just as the Bill of Rights has greatly increased the power of the courts, the new Constitution has given the other
branches of the state a great deal more legitimacy than they had in the past. Under the old regime, the racially
exclusive Parliament and executive were anything except democratic institutions. In such a context it was easy to
justify calls for a Bill of Rights and calls to give the courts the power to uphold human rights by striking down
government decisions and parliamentary legislation. In the new constitutional system, the legislature and
executive are democratic.
Democracy is not simply ‘the rule of the people but always the rule of the people within certain predetermined
channels, according to certain prearranged procedures’. From this perspective, the pre-commitment to certain
procedural and substantive constraints on the power of the majority that is inherent in constitutionalism make
democracy stronger, not weaker. The new Constitution is a democratic pre-commitment to a government that is
constrained by certain rules, including the rule that a decision of the majority may not violate the fundamental
rights of an individual.
The fact that the provisions of the Constitution are justiciable does not mean that the courts are the only way to
enforce them. The Constitution is not only enforced through litigation but through a number of other democratic
means. The principle of democracy means that citizens are entitled to lobby and to pressurise the government to
give effect to their rights. The importance of a free press is in ensuring that the government keeps to their rights.
The importance of a free press in ensuring that the governments keeps to its commitments and that it does not
abuse its powers must not be underestimated. Moreover, chapter 9 of the Constitution creates a number of
‘State Institutions Supporting Constitutional Democracy’. Of these, the Human Rights Commission, the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic Communities have important roles to play in the
protection and enforcement of human rights.
The third principle, entrenchment, prevents Parliament from amending the Constitution without following special
procedures and without the support of special majorities. Section 74 deals with amendment. The manner and
from requirements for amending the Constitution are complex, since some of the provisions are more securely
entrenched than others. Essentially, while most of the Constitution may be amended by a two-thirds majority of
the National Assembly, an amendment of the Bill of Rights must also be passed by six provinces in the National
Council of Provinces.
1.1.2. The rule of law
The idea of constitutionalism is bolstered by the specific entrenchment of the rule of law in the founding
provisions, s1 of the Constitution. As originally conceived by the English constitutional lawyer AV Dicey more than
a century ago, the purpose of the rule of law was to protect basic individual rights by requiring the government to
act in accordance with pre-announced, clear and general rules that are enforced by impartial courts in accordance
with fair procedures. This means two things. The first is that the various organs of state must obey the law. The
second is that the state cannot exercise power over anyone unless the law permits it to do so. This means that
there must be a law authorising everything the state does. If it acts without legal authority it is acting lawlessly,
something that a constitutional democracy cannot permit.
, In a number of cases, for Constitutional Court has made decisive direct use of the principle, developing from it a
general requirement that all law and state conduct must be rationally related to a legitimate government purpose.
The seminal statement on this requirement is found in the Pharmaceutical Manufactures decision. The court had
to consider the basis on which the exercise by the President of a power granted by an Act of Parliament to bring
the Act into operation was constitutionally reviewable. The power, it was held, through derived from legislation
and close to the administrative process, was not administrative action. Instead, the power that was given to the
President lay between the law-making process and the process of administration of the legislation. The exercise
of the power required a political judgment as to when the legislation should be brought into force, a decision that
is necessarily antecedent to the implementation of the legislation which comes into force only when the power is
exercised. Although not administrative action and therefore not subject to the administrative justice right in the
Bill of Rights, the President’s conduct was an exercise of public power which had to be carried out lawfully and
consistently with the provisions of the Constitution.
According to the Constitutional Court,
It is a requirement of the rule of law that the exercise of public power by the executive and other
functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows
that in order to pass constitutional scrutiny the exercise of public power by the executive and other
functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards
demanded by our Constitution for such action.
The court went on to hold that the President’s decision to bring an Act into operation mistakenly was not
objectively rational and was therefore invalid. Though clearly an important interpretation of the requirements of
the rule of law; the sequence of analysis followed in the decision bears emphasising. The court did not reach the
rule of law until it had decided that the President’s conduct was not administrative action and therefore not
subject to the specific requirements of the administrative justice right. A norm of such generality and abstraction
as the rule of law should not be directly applied until norms of greater specificity have been exhausted.
The rule of law therefore means more than the value-neutral principle of legality. It also has the implications for
the content of law and government conduct. In this regard it has both procedural and substantive components.
The procedural components forbid arbitrary decision-making. Not only the executive, but Parliament itself may
not act capriciously or arbitrarily. It also explains why there must be a rational relationship between a scheme
Parliament adopts and the achievement of a legitimate governmental purpose. The absence of a rational
relationship indicates that the legislation is arbitrary, which is inconsistent with the rule of law.
More recent decisions have inflated the concept still further to include a requirement of procedural fairness. In
Albutt, the Constitutional Court held that procedural fairness was required as a matter of rationality, i.e. that it
would be irrational to take the decision in question without hearing both sides. This established that the principle
of legality may demand procedural fairness in an appropriate case. More recently, the Supreme Court of Appeal
held that the Judicial Service Commission had to give reasons for non-administrative action if properly called upon
to do so, particularly since its conduct would otherwise be effectively immune to a challenge based on rationality.
The substantive component dictates that the government must respect the individual’s basic rights. It is not clear
what kinds of basic rights will qualify for protection under the rule of law. Respect for human dignity, equality and
freedom are repeatedly emphasised in the Bill of Rights. It seems logical that these ought also to be the rights
protected by the rule of law. The inclusion of the rule of law in the founding provisions therefore super-entrances
a ‘mini-constitution’.
Study unit 1 – Introduction to the Constitution and the Bill of
Rights
1.1. Basic Principles
A number of basic principles underlie the new constitutional order. They are the following:
Democracy, supremacy of the Constitution and the rule of law, which are enshrined in the text of the
Constitution.
Constitutionalism, separation of powers, and check and balances, which are implicit in the text of the
Constitution.
Fundamental rights, which are entrenched in the Bill of Rights (chapter 2 of the Constitution).
These principles are basic in the sense that any law or conduct inconsistent with them may be declared invalid.
They tie the provisions of the Constitution together and shape them into a framework than defines the new
constitutional order. They influence the interpretation of many other provisions of the Constitution, including the
provisions of the Bill of Rights.
1.1.1. Constitutionalism
Constitutionalism is the theory of constitutional law. In its modern form, constitutionalism is a body of theoretical
prescriptions. It prescribes what a constitutional and constitutional law should do, as opposed to simply describing
what a particular constitution does. The particular version of constitutionalism that informs the South African
Constitution prescribes that a constitution must structure and constrain state power. The constitution must
ensure that the state has enough power to govern, but at the same time the state’s power must be limited by the
constitution to ensure that it does not violate the law or the human rights of its citizens.
The essence of the doctrine is that the power of the state should be defined and limited by law to protect the
interests of society. Constitutionalism is a way of ensuring limited government as opposed to the arbitrary rule of
an autocracy or a dictatorship.
The principle of limitation applies in two ways: first, in restricting the range of things that the various organs of
state can do, and secondly, in prescribing the procedures they must follow in doing those things within their
competence.
Second, principally through the operation of a Bill of Rights, substantive limitations are imposed. The state may
not use its power in such a way as to violate any of a list of fundamental rights and has a corresponding duty to
use its power to protect and promote the rights. But neither of these limitations on state power will be effective
without three associated principles of law: constitutional supremacy, justiciability and entrenchment. The first
principle, constitutional supremacy, dictates that the rules and principles of the Constitution are binding on all
branches of the state and have priority over any other rules made by the government, the legislatures or the
courts. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive
reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of
constitutional supremacy. It states that the ‘Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. Section 8 provides that the Bill
,of Rights has supremacy over all forms of law and that the Bill of Rights binds all branches of the state in addition
to, in certain circumstances, private individuals.
Constitutional supremacy would mean little if the provisions of the Constitution were not justiciable. For a
supreme constitution to be effective the judiciary must have the power to enforce it. Section 172 provides that,
provided that it has the jurisdiction to do so, a court ‘must declare that any law or conduct that is inconsistent
with the Constitution is invalid to the extent of its inconsistency’. Court orders must be obeyed by the other
branches of the state: according to s165 (5) an ‘order or decision issued by a court binds all persons to whom and
organs of state to which it applies’.
Just as the Bill of Rights has greatly increased the power of the courts, the new Constitution has given the other
branches of the state a great deal more legitimacy than they had in the past. Under the old regime, the racially
exclusive Parliament and executive were anything except democratic institutions. In such a context it was easy to
justify calls for a Bill of Rights and calls to give the courts the power to uphold human rights by striking down
government decisions and parliamentary legislation. In the new constitutional system, the legislature and
executive are democratic.
Democracy is not simply ‘the rule of the people but always the rule of the people within certain predetermined
channels, according to certain prearranged procedures’. From this perspective, the pre-commitment to certain
procedural and substantive constraints on the power of the majority that is inherent in constitutionalism make
democracy stronger, not weaker. The new Constitution is a democratic pre-commitment to a government that is
constrained by certain rules, including the rule that a decision of the majority may not violate the fundamental
rights of an individual.
The fact that the provisions of the Constitution are justiciable does not mean that the courts are the only way to
enforce them. The Constitution is not only enforced through litigation but through a number of other democratic
means. The principle of democracy means that citizens are entitled to lobby and to pressurise the government to
give effect to their rights. The importance of a free press is in ensuring that the government keeps to their rights.
The importance of a free press in ensuring that the governments keeps to its commitments and that it does not
abuse its powers must not be underestimated. Moreover, chapter 9 of the Constitution creates a number of
‘State Institutions Supporting Constitutional Democracy’. Of these, the Human Rights Commission, the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic Communities have important roles to play in the
protection and enforcement of human rights.
The third principle, entrenchment, prevents Parliament from amending the Constitution without following special
procedures and without the support of special majorities. Section 74 deals with amendment. The manner and
from requirements for amending the Constitution are complex, since some of the provisions are more securely
entrenched than others. Essentially, while most of the Constitution may be amended by a two-thirds majority of
the National Assembly, an amendment of the Bill of Rights must also be passed by six provinces in the National
Council of Provinces.
1.1.2. The rule of law
The idea of constitutionalism is bolstered by the specific entrenchment of the rule of law in the founding
provisions, s1 of the Constitution. As originally conceived by the English constitutional lawyer AV Dicey more than
a century ago, the purpose of the rule of law was to protect basic individual rights by requiring the government to
act in accordance with pre-announced, clear and general rules that are enforced by impartial courts in accordance
with fair procedures. This means two things. The first is that the various organs of state must obey the law. The
second is that the state cannot exercise power over anyone unless the law permits it to do so. This means that
there must be a law authorising everything the state does. If it acts without legal authority it is acting lawlessly,
something that a constitutional democracy cannot permit.
, In a number of cases, for Constitutional Court has made decisive direct use of the principle, developing from it a
general requirement that all law and state conduct must be rationally related to a legitimate government purpose.
The seminal statement on this requirement is found in the Pharmaceutical Manufactures decision. The court had
to consider the basis on which the exercise by the President of a power granted by an Act of Parliament to bring
the Act into operation was constitutionally reviewable. The power, it was held, through derived from legislation
and close to the administrative process, was not administrative action. Instead, the power that was given to the
President lay between the law-making process and the process of administration of the legislation. The exercise
of the power required a political judgment as to when the legislation should be brought into force, a decision that
is necessarily antecedent to the implementation of the legislation which comes into force only when the power is
exercised. Although not administrative action and therefore not subject to the administrative justice right in the
Bill of Rights, the President’s conduct was an exercise of public power which had to be carried out lawfully and
consistently with the provisions of the Constitution.
According to the Constitutional Court,
It is a requirement of the rule of law that the exercise of public power by the executive and other
functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows
that in order to pass constitutional scrutiny the exercise of public power by the executive and other
functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards
demanded by our Constitution for such action.
The court went on to hold that the President’s decision to bring an Act into operation mistakenly was not
objectively rational and was therefore invalid. Though clearly an important interpretation of the requirements of
the rule of law; the sequence of analysis followed in the decision bears emphasising. The court did not reach the
rule of law until it had decided that the President’s conduct was not administrative action and therefore not
subject to the specific requirements of the administrative justice right. A norm of such generality and abstraction
as the rule of law should not be directly applied until norms of greater specificity have been exhausted.
The rule of law therefore means more than the value-neutral principle of legality. It also has the implications for
the content of law and government conduct. In this regard it has both procedural and substantive components.
The procedural components forbid arbitrary decision-making. Not only the executive, but Parliament itself may
not act capriciously or arbitrarily. It also explains why there must be a rational relationship between a scheme
Parliament adopts and the achievement of a legitimate governmental purpose. The absence of a rational
relationship indicates that the legislation is arbitrary, which is inconsistent with the rule of law.
More recent decisions have inflated the concept still further to include a requirement of procedural fairness. In
Albutt, the Constitutional Court held that procedural fairness was required as a matter of rationality, i.e. that it
would be irrational to take the decision in question without hearing both sides. This established that the principle
of legality may demand procedural fairness in an appropriate case. More recently, the Supreme Court of Appeal
held that the Judicial Service Commission had to give reasons for non-administrative action if properly called upon
to do so, particularly since its conduct would otherwise be effectively immune to a challenge based on rationality.
The substantive component dictates that the government must respect the individual’s basic rights. It is not clear
what kinds of basic rights will qualify for protection under the rule of law. Respect for human dignity, equality and
freedom are repeatedly emphasised in the Bill of Rights. It seems logical that these ought also to be the rights
protected by the rule of law. The inclusion of the rule of law in the founding provisions therefore super-entrances
a ‘mini-constitution’.
