South Africa: Constitution, Fairness, and Equality

• South Africa is a constitutional democracy striving toward ideals.
• The Constitution is a system of fundamental principles that dictates how the country is ruled and protects citizens' rights.

Fairness and Equality

• South Africans come from diverse backgrounds with differing values, cultures, and life perspectives.
• Views on fairness are based on ethical, religious, political, social, moral, and economic convictions that influence attitudes toward other people.
• Despite differences, all individuals are entitled to fairness and equality which the Constitution ensures.
• The Constitution guides lawmakers and enforcers to maintain a just society.

Ethos of the Constitution

• The Constitution begins with a Preamble and consists of 243 sections divided into 14 chapters, outlining the Constitution's purpose.
• Extract from the Preamble states that South Africa belongs to all its inhabitants, united in diversity.
• The Constitution is adopted as the supreme law to establish a society founded on democratic values, social justice, and fundamental human rights.
• Aims to lay the foundations for a democratic and open society with governance based on the will of the people, where every citizen receives equal protection under the law.

Bill of Rights

• Chapter 2 of the Constitution contains the Bill of Rights, which protects the rights of all people in South Africa.
• Some rights, like voting and passports, are reserved for citizens, and specific rights are for children, but most rights apply to everyone in South Africa.
• The rights are based on a respect for human life and are referred to as fundamental or human rights.
• Rights are coupled with responsibilities.
• All individuals have the rights guaranteed in the Constitution and a corresponding duty to respect the rights of others.
• Section 9 of the Bill of Rights establishes the right to equality, ensuring everyone is equal before the law.
• Neither the state nor any individual may unfairly discriminate against anyone based on race, gender, sex, pregnancy, marital status, ethnic or social origin, age, disability, religion, conscience, belief, culture, language, or birth.
• The Constitution ensures that the country is a just society.

Permissible Discrimination

• Discrimination is allowed if it is not unfair.
• Example: A man cannot be a model for women’s clothing.
• Example: A 90-year-old cannot be a fireman.
• The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims to prevent unfair discrimination and promote equality.

Limitations and Conflicts

• Rights cannot be exercised to cause harm to others.
• The right to freedom of religion cannot justify physically harming someone, as it infringes on their right to freedom and security.
• Rights may conflict, such as freedom of expression versus the right to privacy and human dignity.
• An artist painting someone without permission in an undignified manner can cause conflict.
• Fundamental rights are not absolute and may be limited under certain circumstances.
• The Constitution sets limits to the guaranteed rights.
• Conflicts can arise between different people’s rights or within one person’s rights.
• Example: In intercultural adoption, a child's right to participate in their culture may conflict with their right to family care if adopted into a different culture.
• Section 36, the limitation clause, outlines specific requirements for limiting rights.

Ubuntu

• uBuntu embodies humaneness, fairness, and social justice.
• Nelson Mandela emphasized the spirit of uBuntu as the basis of a sound and just society.
• Key principles of uBuntu:
  • Acceptance of differences
  • Mutual understanding
  • Respect for each other
  • Treatment with dignity
  • Reconciliation and unity
  • Value of human life
  • Selflessness and sharing
  • Trust
• Like constitutional rights, uBuntu involves responsibility and right to be respected.
• Individuals have a responsibility to respect others and treat them with dignity.

African Values

• uBuntu is rooted in the legal system and reflected in the Constitution's Preamble.
• S v Makwanyane (1995) held that uBuntu underlies the Constitution, recognizing every person's right to unconditional respect, dignity, value, and acceptance.
• The Constitutional Court held that the death penalty was inconsistent with uBuntu, deeming it unconstitutional and invalid.