FORUM

A Bill of Rights for South Africa: An historical overview

8eth A Nthai Provincial Minister of Safety and Security: Northern Province Associate member of the Pretoria Bar

stitution did not contain a bill of rights. thereby calling for the protection of the This was due to the following factors: the right to property. Again, property rights South African constitutional process was are entrenched in a number of national heavily influenced by the British consti­ constitutions, including ours. Seth Nthai tutional system; the main role-players like Clause 3 read: J Smuts and Merriman were in favour of 'That the Bantu, as well as their col­ May 1996, the Constitutional As­ the English system based on the sover­ oured brethren, have, as Blitish sub­ sembly adopted a final Constitution eignty ofParliament. jects, the inalienable right to enjoyment Econtaining a Bill of Rights hailed as of those British principles of the "lib­ the most progressive bill of rights in the The Role of the ANC in the erty of the subject,justice, equality for world. Numerous books and articles have Bill of Rights debate all classes in the eyes of the law" that been wlitten on both the interim and the have made Great Britain one of the final Bill of Rights. However, none of the The African Bill of Rights greatest world powers' [Karis and authors on the Bill of Rights has at­ (1923) Carter 297]. tempted to trace an historical background Since its formation in 1912, the ANC The ANC demanded equality before to the Bill of Rights debate in South coampaigned vigorously for the recog­ the law. Clause 5 demanded, inter alia, Afiica, and in particular the role played by nition and protection of human rights that the African people should be ac­ the African National Congress (ANC) in for the people. On 28-29 May 1923, corded direct representation by members the developments leading to its adoption. during the annual conference of the of their own race in all legislative bod­ ANC in Bloemfontein, the conference ies of the land, otherwise, there would Orange Free State Consti­ adopted, inter alia, a resolution on a bill be 'no taxation without representation' tution [1854] of rights. [Karis and Carter 297]. This was also a The 1854 Constitution of the Orange clear demand for participatory rights Free State contained certain human Content of the 1923 Bill of (voting rights). rights and the courts had the power to Rights test the validity of the laws passed by Clause 1read as follows: The African Claims (Bill of the Volksraad [Dugard J 'Changing atti­ 'That the Bantu inhabitants of the Rights) 1943 tudes, towards a bill of rights in South Union have, as human beings, the After the signing of the Atlantic Char­ Africa' in Van der Westhuizen and indisputable right to a place of abode ter in 1941 by President F D Roosevelt Viljoen A bill of rights for South Africa in this land'. [See Karis and Carter and Prime Minister W Churchill, Dr A (1988)29]. From Protest to Challenge: A Docu­ B Xuma, the then leader of the ANC, The testing powers of the courts were mentary History ofthe African Poli­ felt that Africans in South Africa needed confirmed in the case of Brown v Leyds tics in South Africa 1882 - 1964 to respond to the Atlantic Charter. He NO (1897) 4 Off Rep. 17. This courtdeci­ (1972) Volume 3 297]. argued that the Atlantic Charter should sion was criticised by the then Presi­ This clause called for equal treatment of be analysed from the 'African's point of dent Kruger who was strongly opposed all people. Today, constitutions of a view' [Meli A History of the ANC: to the courts being granted testing rights. number of countries contain the equality South Africa belongs to us (1988) 94]. He, in fact, referred to the testing pow­ clause. A committee known as the Atlantic ers of the courts as 'the principle of the Clause 2 read as follows: Charter Committee was formed with the devil.' 'That all Africans have, as the sons mandate, inter alia, to draw up a Bill of of this soil, the God-given right to un­ Rights reflecting the post-war demands Union Constitution 1910 restricted ownership of the land in of the African people. The committee Any hopes for a constitution containing this, the land of their bilth' [Karis and tabled a report entitled African Claims a bill of rights were dashed when the Un­ Carter 297]. in South Africa. Xuma sent a manuscript ion was formed in 1910. The Union Con- The ANC demanded access to land, to Smuts and asked for an interview with

142 CONSULTUS, NOVEMBER 1998 FORUM

him. Smuts, through his private secre­ movement (clause 4). On the other fact that the Freedom Charter contained tary, refused to grant an interview and in hand, the Bill provided for the free­ the so-called first, second and third a letter to Xuma stated: dom of the press (clause 6). Other generation of human rights. The fol­ 'Your study is evidently a propagandist clauses provided for were: the secu­ lowing were the first generation of hu­ document intended to propagate the rity of home as a right to every fam­ man rights: freedom of movement, the views of your Congress. As such it is free ily (clause 7); the right to movable right to equality, including gender to you to do your own publicity to secure and immovable property (clause 8); equality, the right to a fair trial, the support for your views. The Prime Min­ the freedom of trade (clause 9); the right against inhuman and degrading ister cannot agree to be drawn into the right to work (clause 10); the right punishment, freedom of expression and task by means of an interview with him. ofevery child to free and compulsory association, the right to privacy, the He does not agree with your interpreta­ education and access to teltiary in­ right to family, the right to property, tion of the Atlantic Charter and with your stitutions (clause 11). freedom of economic activity, freedom efforts to stretch its meaning so as to • Education of conscience, freedom of religion and make it to apply to all sorts of African The other rights were: the right to finally the right to language and cul­ problems and conditions.' [Walshe The education, calls for provision of ture. The second-generation of human Rise of African Nationalism in South education to all by the state, and that rights were: the right to education, Africa (1987) 274J Africans should be represented in workers' rights, children's rights, land Smuts's private secretary's reply was education-governing bodies. rights, the right to housing,. the right read at the annual congress of the ANC • Industry, Labour and Commerce to health, disability rights, the right to in 1945, which adopted the African African Claims demanded freedom leisure, rest and recreation. Claims, also known as the 1943 Bill of of trade and occupation, equal pay The third generation of human rights Rights. for equal work, the right of the Afri­ were the right to peace and the right to can worker to collective bargaining self-determination. Content of the 1943 Bill of and labour legislation to cover all Rights workers, including farmworkers, do­ Bill of Rights and the What is the content of the African mestic and civil servants. It is now Progressive Party Claims document? What was it that history that the labour legislation was The Progressive Party was formed dur­ Smuts rejected? only extended to farmworkers and ing the constitutional crisis (1951-1955) • Full Citizenship Rights and De­domestic servants in the 1990s, and it immediately attempted to resus­ mands whereas the ANC called for their citate the idea of a Bill of Rights. It ap­ The preamble demanded full citizen­ legislative protection as early as pointed a Commission of Inquiry headed ship rights for the African people. 1943. by Molteno QC, which, inter alia, rec­ The Bill of Rights calls for the 'abo­ • Public Health and Medical Serv­ommended that a Bill of Rights should lition of the political discrimination ices be introduced. Attempts by the Progres­ based on race' and also universal African Claims called for the provi­ sive Patty to effect such an introduction adult suffrage (clause 1) [see ANC sion of adequate medical and health failed, hence, the 1961 Constitution did Department of Information and Pub­ facilities for all people, and for a dras­ not contai naBi11 of Rights. licity 'The ANC and the Bill of tic overhauling and re-organisation Rights 1923 - 1993: A seventy year of medical systems with emphasis on ANC's Constitutional survey' (1993) 5]. preventative medicine. Guidelines 1986 The Bill provided for ' the right • Discrimination In 1986 the ANC's Constitutional Com­ to equal justice in courts of law, in­ African Claims called for the aboli­ mittee produced a document called the cluding nomination to juries and ap­ tion of discrimination, and therefore 'Constitutional Guidelines'. This docu­ pointment as judges, magistrates, and demanded the repeal of all discrimi­ ment envisaged a constitution contain­ other court officials ' (clause 2). natory legislation. ing 'a Bill of Rights based on the This clause called for equality be­ It is clear from the above that the 1943 Freedom Charter' (Clause h). The docu­ fore the law and, interestingly enough, Bill of Rights contained provisions on ment provided for property rights, land the clause also alludes to the trans­ many rights and freedoms found in mod­ rights, workers' rights, women rights formation of the judiciary and, in a ern constitutions. and children's rights. way, called for the implementation of In 1990 the ANC's Constitutional affirmative action. The Freedom Charter 1955 Committee released a comprehensive The Bill provided 'freedom of and human rights Bill of Rights, containing the three gen­ residence' (clause 3) and also for the In 1955 the ANC influenced the adop­ erations of human rights. [See ANC African farmers to be subsidised like tion of the Freedom Charter. The Char­ their European counterparts. Provi­ ter addressed fundamental human sion was made for the freedom of rights. Of particular importance is the Continued on p 147.

NOVEMBER 1998, CONSULTUS 143 }EDUCATION AND TRAINING

tion and practical implementation. In a self to training has had many beneficial 1996 and amended on I I October 1996. constitutional state, appellate advocacy effects. Not the least of these has been a 3 See S v Makwanyane 1995 (3) SA 391 at its best, therefore, necessmily includes re-emphasis upon the public duties of the (CC) (death penalty's unconstitutionality). argument about values; argument about senior members of the profession. Under 4 President ofthe Republic ofSouth Africa who we are and wish to be, and what the apartheid governrnent, many of the and another v Hugo 1997 (4) SA I (CC) society we wish to live in. senior members of the Bar of the highest (presidential prerogative subject to The enactment of a constitution as stature were denied judicial appointment, scrutiny). the supreme law in effect means that the or would if it was offered to them for good 5 For instance, in striking down reverse number of arguable propositions about reason have refused it. This contributed onus provisions: see Sv Zuma and others what is good for humans in human so­ I believe to corroding amongst some the 1995 (2) SA 642 (CC); S v Bhulwana ciety is exponentially increased. belief that the hjghest virtue of the advo­ 1996 (I) SA 388 (CC); S v iulies 1996 In the Bram Fischer Memorial Lec­ cate was in public service. (4) SA 313 (CC); S v Ntsele (\997) 11 ture, ChiefJustice Ismail Mahomed, has The Bar training initiative reasserts BCLR 1543 (CC); S v Mbatha 1996 (2) recently stated: that commitment. It is exemplified by our SA 464 (CC); S v Coetzee and others "The orthodoxy of yesterday often be­ fliends from abroad, particularly from the 1997 (I) SACR 379 (CC); and Scagel/ comes the heresy of tomorrow. It is there­ Inns ofCourt, who regularly devote enor­ and others v Attorney-General of the fore necessary that even in the case of mous amounts of time to training. They Western Cape and others 1996 (2) SACR very deeply held and common convictions have given much of their time also to our 579 (CC). about what is moral or immoral, just or fledgling scheme, and have done so with 6 Cite latest Nedcorllnstitute of Security unjust, the voice of the dissident, the unstinting generosity. Studies Crime Monitor (First Quarter, unorthodox and even the apparent mav­ Their visits and contribution re­ 1998). erick must not be suppressed."11l establish and re-emphasise an aspect of 7 See my discussion in "Rights, Constitu­ The importance of skilful and well­ practice which is vital to the success of tionalism and the Rule of Law: The Alan trained advocacy to this search is pivotal: our fragile constitutional experiment: Patan Memorial Address" (1997) 114 particularly in a country as diverse and the Bar's commitment to public inter­ SAU505. fragmented as ours, where we are "one est investment in pro bono work. In do­ 8 Instances include Komani NO v Bantu nation" only in our commitment to our ing so, they have set the tone for the Affairs Administration Board. Peninsula common future, but in every other sense advocacy in South Africa to establish Area 1980 (4) SA 448 (A); East Rand - in terms of culture, language, race, and itself at the core of our constitutional Administration Board v Rikhoto 1983 (3) social background - are many nations. enterprise, and therefore at the heart of SA 595 (A) (pass laws); Minister of Law One of the primary functions of the our constitutional enterprise: one that and Order v Hurley 1986 (3) SA 568 (A) advocate will always be to defend the role seeks the common good through justice (detention without trial); S v Toms; S v of the heterodox, which will often be the and equality under the law. Bruce 1990 (2) SA 802 (A) (military con­ role of the weak and the defenceless. If scription). attlibuting this role to advocacy sounds Endnotes 9 When the Labour Relations Act 28 of 1956 over-ambitious, I make no apology for it. See Mabo v Queensland [ No 2] (1992) was in 1980 deracialized and the indus­ Unless we are ambitious - perhaps even CLR 1 and Wik Peoples v Queensland trial court system introduced and vested unrealistically and unreasonably ambi­ (1996) ALR 129, discussed by Mr Justice with unfair labour practice jurisdiction. tious - in our hopes and expectations and GE Fitzgerald in (1997) 114 SAU 486 at lOIn The Bram Fischer Memorial Lecture, demands, our experiment in constitution­ 487-488. delivered in Cape Town on Tuesday 3 alism has little chance of succeeding. 2 Constitution of the Republic of South February 1998, at page 10 of the type­ The Bar's initiative in committing it- Africa Act 108 of 1996, as adopted on 8 May script. W

Nthai Bill of Rights Continued from p143. Conclusion It is clear from the above that the earlier the ANC pioneered and agitated for the Constitutional Committee 'A Bill of ANC's human rights documents in­ adoption of a Bill of Rights a long time Rights for the New South Africa', Cen­ fluenced the acceptance of the idea of a ago. Some ofthe readers may dismiss this tre for Development Studies (1990) Bill ofRights in South Africa. I must also argument as merely a party-political view . 1-37] The Draft Bill of Rights was used point out that during the negotiation proc­ or a "propagandist" view but nothing during the negotiation process that led ess, almost all political parties tabled their could be further from the truth than that. to the adoption of the interim Bill of own draft Bills of Rights which, to a cer­ This is, indeed, part of our history. It is Rights, followed by the final one con­ tain extent, shaped the present Bill of contained in documents which have only tained in the 1996 Constitution. Rights. However, it is undisputable that recently been made accessible. W

NOVEMBER 1998, CONSULTUS 147