Week 1 - Lesson 2 - The Constitution (2) (1).pptx

Education Law & Policy: The Constitution of the Republic of South Africa WEEK 1: 11 APRIL 2024  The South African Constitution What is a Constitution, and why do we have one? (ConCourt website)  A constitution sets out how all the elements of government are organized...

Education Law & Policy: The Constitution of the Republic of South Africa WEEK 1: 11 APRIL 2024  The South African Constitution What is a Constitution, and why do we have one? (ConCourt website)  A constitution sets out how all the elements of government are organized and how power is carved up among different political units.  It contains rules about what power is wielded, who wields it, how it is to be wielded, and over whom it is wielded in the governing of a country. A Constitution defines the rights and duties of citizens, and the devices that keep those in power in check.  A Constitution is a contract between those in power and those who are subjected to this power.  What is the purpose of our Constitution?  South Africa has had Constitutions before, but our current Constitution no longer accepted the power of the Apartheid state, and ushered in a new democracy that aimed to advance human rights, equality, constitutional supremacy and the rule of law.  The Constitution is a bridge In Ettienne Mureinik’s article: The Constitution is likened to a bridge, from Apartheid to democracy “If this bridge is successfully to span the open sewer of violent and contentious transition, those who are entrusted with its upkeep will need to understand very clearly what it is a bridge from, and what a bridge to”.  The Constitution is a bridge Under apartheid - Parliament was sovereign - led to an ethic of obedience. Racist parliament commanded the bureaucracy and bureaucracy commanded the people Under democracy - Constitution is sovereign - all decisions are justified in terms of the Constitution. This leads to a culture of justification. Community built on persuasion not coercion. The Constitution as a “birth certificate” The Constitutional Court’s website also refers to the Constitution as a "birth certificate" of a new South Africa, stating that: “Our Constitution is the most important - or supreme - law of the land. No other law may conflict with it; nor may the government or people do anything that violates it. This brings us to the crucial topic of constitutional supremacy.”  What is Constitutional Supremacy?  The Constitution is superior to parliament and is the yardstick by which all other laws are judged.  It applies to all organs of government - including parliament, the presidency, the police force, the army, schools and the public service. (Concourt’s website)  Section 2 of Chapter 1 "This 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." Overview of the constitution Preamble Chapter 1 - Founding provisions Chapter 2 - Bill of Rights Chapters 3-7 - Structures of our government Chapter 8 - Courts and the administration of justice Chapter 9: State Institutions Supporting Constitutional Democracy [Chapter 9 Institutions} What does our Constitution comprise of?  Chapter 10 - Matters relating to public administration/ public service  Chapter 11 - Security services  Chapter 12 - Traditional Leaders  Chapter 13 - Finance  Chapter 14 - General provisions  7 schedules The Preamble to the Constitution 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 Constitution 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.  Founding provisions Section 6 - Languages  The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. (Sign language also recently been recognised)  Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.  The Bill of Rights  Section 7-37 of the Constitution  Contain a range of rights called human rights  What are human rights? (Concourt’s website):  Human rights are those basic and fundamental rights to which every person is entitled to- for the simple reason of being human.  These rights are inalienable: a person has them forever and they cannot be taken away. BoR: Vertical & horizontal application Bill of Rights is binding first on the government (vertical). It binds the executive, the judiciary and all organs of state - which means everyone from the president to the police. (Section 8(1) of the Constitution) Horizontal - between one citizen or private body and another. (Section 8(2) of the Constitution)  Generations of Rights  Human rights fall into two broad classes - first and second generation rights  Civil and political rights... considered first-generation rights. They include the rights to life, dignity, equality and privacy. But also freedoms associated with democracy: freedom of expression, association, assembly, opinion, belief and religion, and movement.  Second-generation rights are those connected to the social and economic features of life. South Africa is one of only a few countries in the world to entrench rights such as access to food, water, housing, healthcare and social security - section 27. The right to education and the special rights of children also fit in here.  Third-generation rights - a relatively new field in human rights - concern the environment and development, as well as culture and language. Right to Equality - Section 9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.  The right to Equality - section 9  3) 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.  Recognises multiple forms of discrimination, that can also be inter-sectoral.  The Right to Equality - section 9 (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.  Right to human dignity - section 10 (1) Everyone has inherent dignity and the right to have their dignity respected and protected. Corporal punishment cases S v Williams (1995) Freedom of Religion South Africa v M. of Justice and Constitutional Development and Others (2019)  “It is declared that the common law defence of reasonable or moderate parental chastisement is inconsistent with the provisions of sections 10 and 12(1)(c) of the Constitution.” (Mogoeng CJ) Right to Freedom of conscience, religion, belief & opinion - section 15  (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.  (2) Religious observances may be conducted at state or state-aided institutions, provided that ­ a) those observances follow rules made by the appropriate public authorities; b) they are conducted on an equitable basis; and c) attendance at them is free and voluntary. …  [What is the impact of this on public schools?] The Right to Freedom of expression - section 16 (1) Everyone has the right to freedom of expression, which includes ­ a) freedom of the press and other media; b) freedom to receive or impart information or ideas; c) freedom of artistic creativity; and d) academic freedom and freedom of scientific research. (2) The right … does not extend to e) Propaganda for war f) Incitement of imminent violence, or g) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. [What about school rules - uniforms, wearing religious symbols with school uniform, hairstyles?]  Labour Relations - Section 23 (1) Everyone has the right to fair labour practices. (2) Every worker has the right ­ a) to form and join a trade union; b) to participate in the activities and programmes of a trade union; and c) to strike. … [Should teachers strike?]  Children’s rights - section 28  (1) Every child has the right ­ (a) to a name and a nationality from birth; (b)to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; and others (d) – (j)  (2) A child's best interests are of paramount importance in every matter concerning the child.  (A child is a person under 18 years of age) A Right to a basic education - section 29(1) (1) Everyone has the right ­ to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible. ‘internal limitation clause’.  Right to a Basic Education 29(2) 2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account ­ equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.  Right to a basic education - section 29(3) (3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that:  do not discriminate on the basis of race;  are registered with the state; and  maintain standards that are not inferior to standards at comparable public educational institutions.  Right to Access to Information – Section 32  (1) Everyone has the right of access to ­ a) any information held by the state; b) Any information that is held by another person and that is required for the exercise or protection of any rights. … [openness and transparency] Just Administrative action - section 33  (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.  Limiting rights - section 36  (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom...  Matukane Case Please read the facts of the Matukane case provided & consider the questions. This will be discussed in the first tutorial next Thursday. Please submit your responses before the tutorial.