Reflections on Democracy and Human Rights: A Decade of the South African Constitution (Act 108 of 1996) South African Human Rights Commission Human Rights House 29 Princess of Wales Terrace, corner York & St Andrews Sts Parktown Johannesburg Private Bag 2700 Houghton 2041 www.sahrc.org.za © South African Human Rights Commission 2006 First published in South Africa in 2006 ISBN 0-620-36364-9 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the express permission, in writing of the publisher. Copy editing and project management by Wordsmiths Publishing Services www.wordsmiths.org.za Designed, printed and bound by Creda Communications, Cape Town, South Africa Foreword On the occasion of the tenth anniversary of our Con- we have gone about discharging the Constitutional stitution, there can be little argument that the human contract, and, in particular, how we have collectively rights values underpinning our democratic dispensa- used the vision of the Constitution as a central vehicle tion become increasingly entrenched with the passage in the transformation of our society. of time. The language and message of human rights This publication seeks to make a contribution in that define critical processes such as law and policy-mak- process of reflection and assessment. Through the ing; the relationship between citizens and the state; and various contributions, we seek to present an overview the relationships among and between citizens and, in of the progress made on various fronts and sectors, the many instances, non-citizens. Notwithstanding the fact interventions that have worked, the unfinished busi- that they are most often contested, and that differing ness, and challenges for the future. interpretations of human rights widely exist, more and In all of this we must remain mindful that, even with more of our people have come to rely on and assert all that we have achieved, there remain considerable their rights. This can only be healthy for our democracy. deficits in overcoming the legacy of discrimination and However, it is also important that as people assert and the grinding effects of poverty. The evidence of this claim their rights, they accept the responsibilities that confronts us with frequent regularity, and the challenge come with having rights. we face is to ensure that the promise of the Constitution The South African Human Rights Commission is one is made good and realised in substantial terms by all of the institutions with the responsibility of ensuring that our people. human rights remain at the centre of debate and We would like to thank all who have contributed to dialogue in the nation; that the lofty provisions in the Bill this publication, including the various contributors and of Rights are translated into reality for the many who the Commissioners and staff of the Human Rights need their protection; and that equality and human Commission. dignity are more than legal concepts; values that are internalised and reflected in our relations with each other. Jody Kollapen An essential part of celebrating our significant Chairperson achievements as a nation is reflecting seriously on how South African Human Rights Commission Contents Chapter One: South Africa 1994–2004 .............................................................................. 1 Chapter Two: Promoting Equality through Administrative Measures ............................................. 15 Chapter Three: Protecting the Right to Equality through the Constitutional Court .............................. 27 Chapter Four: The Challenge of Employment and Equity in the Workplace .................................... 37 Chapter Five: Socio-Economic Rights and the Distribution of Basic Services .................................. 53 Chapter Six: Land ................................................................................................... 67 Chapter Seven: Housing ............................................................................................ 73 Chapter Eight: Health ............................................................................................... 79 Chapter Nine: Food ................................................................................................. 85 Chapter Ten: Water ................................................................................................. 91 Chapter Eleven: Social Security and Social Assistance .......................................................... 97 Chapter Twelve: Education ........................................................................................ 101 Chapter Thirteen: The Right to Development: An Implied Right in South Africa’s Constitutional Order ..... 109 Chapter Fourteen: Environmental Rights ........................................................................ 119 Chapter Fifteen: The Criminal Justice System ................................................................... 125 Chapter Sixteen: Political Participation ........................................................................... 145 Chapter Seventeen: Freedom of Expression .................................................................... 153 Chapter Eighteen: The Right of Access to Information at Age Ten ............................................. 167 Chapter Nineteen: Cultural, Religious and Linguistic Rights .................................................... 173 Chapter Twenty: Conclusion ...................................................................................... 191 Epilogue ............................................................................................................ 199 Authors ............................................................................................................. 201 Acknowledgements The South African Human Rights Commission herewith expresses its appreciation to the contributors for writing the various chapters. Our thanks also go to Professor Nasila Rembe for the overall editing of the publication and for writing the foreword and postscript. The views expressed in this publication are those of the individual contributors and do not necessarily reflect the views of the South African Human Rights Commission. INTRODUCTION In 2004 South Africa celebrated ten years of democ- Initially, the contributions to this Review were written racy. This year heralds yet another milestone in the with the commemoration of a decade of South Africa’s history of South Africa — commemoration of ten years democracy, 1994-2004, in mind. For reasons that need of the Constitution. The Constitution of South Africa, not be explained here, this effort stalled. However, the 1996, has, since its adoption, provided the legal frame- ideas expressed by the different contributors, though work upon which the new social and political order is two years old, still remain extant and resonate well with founded. It lays down the principles of democratic the commemoration of ten years of the Constitution. governance; and establishes and defines the powers We would like to thank individually and collectively all and functions of governmental institutions, and the those who contributed to this publication. values that underpin the new democracy. The Consti- tution has been the yardstick to measure, and beacon The task of conceiving and refining the idea, the to guide, conduct in private life and public administra- convening of different contributors, planning, co- tion, and the civility of governance in general. It has ordinating and facilitating the process involved exper- provided the compass that has steadily steered South tise and assistance beyond the South African Human Africa as a nation away from the dark days of apartheid Rights Commission. We would therefore like to thank to a future that is founded on freedom, respect for all those who served as members of the reference human rights and the rule of law, and in which there is group. hope for even greater realisation of social justice and Democracy, and the Constitution need to be under- prosperity for all South Africans. stood, nurtured and made to grow, so that their ideals, The papers presented in this Review are a modest for which we have struggled for so long, can be contribution to the commemoration of ten years of the translated into our daily lives. It is therefore our sincere South African Constitution. The South African Human hope that this contribution will generate interest among Rights Commission provided the resources and space the government and its administration; relevant institu- in which different contributors reflect on various key tions of government and civil society formations; and areas of democracy and constitutional development in academia on and beyond the areas discussed and the South Africa over the past decade, the achievements issues raised by the contributors. We have, and must that have been made, the challenges that were en- countered in the process, and the lessons that can be share, a collective responsibility in ensuring that our learned. The views expressed in this Review are there- young democracy works, and that South Africa fore not those of the South African Human Rights emerges as a stable, peaceful and prosperous society, Commission or necessarily shared by the Commission. and always remains a winning nation. Needless to say, they are a pointer to a growing and maturing democracy, vibrant in ideas, some contested