Human rights are those basic and fundamental rights to which every person - for the simple reason of being human - is entitled. These rights are inalienable: a person has them forever and they cannot be taken away.
The natural rights of South Africans received no protection before the country became a constitutional democracy in 1994. (See the history of the Constitution for the background to the struggle for human rights and democracy.)
Chapter 3 of the interim Constitution introduced legally protected fundamental rights to South Africa for the first time. Now fundamental human rights are entrenched in Chapter 2 - sections 7 to 39 - of the 1996 Constitution.
The Bill of Rights is arguably the part of the Constitution that has had the greatest impact on life in this country. As the first words of this chapter say: "This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom."
It has also been the source of the majority of the groundbreaking rulings the Constitutional Court has handed down. To read more about selected rights and the way the Constitutional Court has interpreted them, see children's rights, women's rights, gay and lesbian rights, workers' rights and access to information.
It goes without saying that the Bill of Rights is binding on the government. Section 8 says it binds the executive, the judiciary and all organs of state - which means everyone from the president to the police.
But a recurring theme in constitutional law is whether private individuals and bodies (such as clubs, companies and private schools) are also obliged to observe such rights. It is widely recognised that some private bodies, such as large companies, can have great power. Shouldn't citizens be protected from non-state bodies that, for example, discriminate unfairly?
This question, left unanswered in the interim Constitution, was cleared up by Section 8 of the final Constitution: the Bill of Rights doesn't only apply vertically (from the state downwards, to its citizens) - it also applies, where applicable, horizontally (between one citizen or private body and another).
Human rights fall into two broad classes - first and second generation. Civil and political rights, those traditionally included in constitutions around the world, tend to be considered first-generation rights.
These rights, which were given expression by the Enlightenment thinkers, were the first to be recognised by law. They begin with the basic rights to life, dignity, equality and privacy. But they also include the fundamental 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.
At first glance it might seem strange to include, in a document dedicated to protecting rights, a clause that allows rights to be limited. But this is a necessary feature of life in society: people inevitably have competing and conflicting rights.
One person's right to dignity, for example, may clash with another's right to freedom of expression. One citizen's right to be protected from violent suspected criminals will conflict with that suspect's right to freedom of movement.
It's an established principle, then, that rights can be limited. The challenge, though, is to allow them to be limited only under strict conditions. If the Bill of Rights simply allowed any kind of restriction, its very purpose would be undermined.
As a result, section 36 of the Constitution, known as the limitation clause, lays down a test that any limitation must meet. The two central concepts in this test are reasonableness and proportionality. Any restriction on a right must be reasonable and must be proportional in that the impact or extent of the restriction must match the importance of the aim served by the limitation of the right.
Section 38 gives a person who believes an infringement has occurred the right to go to court. This clause makes it clear that it is not only people acting for themselves who may use the law to protect their own rights: "class action" suits - by people acting for a group or in the public interest - are also allowed. See how to approach the Constitutional Court, as well as the list of organisations that can help you enforce your rights.
The Bill of Rights is unlike any ordinary piece of legislation. The language used in many of the sections is broad, which means the rights need careful interpretation by the judges who apply this document.
There is some explicit guidance, however. An important instruction is contained in section 39(1)(a): "When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom."
Judges are reminded to keep these values - which crop up frequently in South Africa's constitutional law - at the front of their minds when dealing with the Bill of Rights.
The Bill of Rights cannot be changed by a simple parliamentary majority. Rather, it can only be amended by a Bill passed by the National Assembly, if at least two-thirds (67 percent of the members of Parliament) vote for it; and the National Council of Provinces, if at least six provinces vote for it.
When the Constitutional Court was inaugurated in 1995, the shelves of the new library were bare. But now the collection stands at more than 40 000 volumes - and is growing quickly. The library expects to hold as many as 400 000 items eventually.
The library from outsideChief Justice Arthur Chaskalson - in his tribute to Justice Laurie Ackermann, who retired in 2003 - said Ackermann, who became the chairperson of the Library Committee, adopted the project when the library was "a smallish storeroom, consisting of shelves with a few law reports and even fewer textbooks".
Chaskalson, speaking about the office space the Court rented before it moved into its new building, said a government architect had presumably been "of the opinion that there would be little use for books, and if it was really necessary for a judge to look at one of them it could be taken to the judge's chambers".
Now the library occupies a spacious and imposing three-story complex in the northern wing of the Constitutional Court's new building. The new library has an expandable public reading room with a separate entrance.
South Africa's Constitution says every court in the country, when interpreting the Bill of Rights, must consider international law and may consider foreign law. Other foreign links are evident in our Constitution itself: its drafters borrowed heavily from the constitutions of other democratic countries.
As a result, the Constitutional Court needs a top-quality library to help it develop South Africa's constitutional law. The judges have to be familiar with and have access to:
- international law as developed by the International Court of Justice and other international courts, as well as international covenants and conventions on human rights; and
- the jurisprudence of Africa and countries such as the United States, Canada, the United Kingdom, India and others.
It is also vital for judges to have access to the latest international legal journals. The field of human rights and constitutional law is developing rapidly; it is in these journals that innovative thinking and fresh developments are first encountered.
The law clerks
The Constitutional Court is the first court in the history of South Africa where all the Judges have law clerks. Each has two clerks, ordinarily recent law graduates. The library and its librarians play an indispensable role in the development of the clerks' research skills - particularly in computer, electronic and Internet research.
Other courts and users
The libraries of the High Courts - and even that of the Supreme Court of Appeal - are not equipped for the new constitutional jurisprudence. And the position in the Magistrates' Courts is much worse.
The most efficient way to meet their needs was for the Constitutional Court to develop an outstanding library as a national resource that is accessible to other courts.
In fact, right from the beginning the Constitutional Court discarded the idea that its library was solely for its own use and benefit. Instead, the Court considers it a national and continental resource: it is accessible for research by other courts, independent state institutions, legal academics, practising lawyers and other constitutional law researchers.
The vision extends further: the goal is to develop the library as a resource for all lawyers. Although the older, established law schools are relatively well served by their libraries, even they are feeling the pinch and have already started using the Constitutional Court library.
The African continent
For Africa to meet the challenges of constitutionalism and human rights, it needs better access to relevant legal information.
The consensus is that the obligations of the Constitutional Court library extend to the continent. The library is prepared to fulfil this duty if the means to do so are available, for scarce resources simply have to be shared.
When the Constitutional Court heard its first case on 15 February 1995, its library consisted of a few hundred books. The collection has since grown to more than 40 000 volumes and is steadily increasing.
The immediate aim is to establish a hard-copy library of 100 000 books, which should increase to 200 000 in the medium term. The ultimate goal: 400 000 items.
What about the future of hard-copy collections? Leading law libraries abroad have been consulted and the consensus is that, although electronic information retrieval is important for research and material identification, it will not do away with the need for an extensive hard-copy book collection. Only about 10 percent of the collection will be in electronic format.
The library subscribes to Lexis/Nexis and has a free subscription to Quicklaw, the equivalent Canadian legal database. It is working on a CD-Rom collection and has identified websites with free information.
The library subscribes to the major law reports of the English-speaking world - as well as to those of the German Constitutional Court, the German Federal Supreme Courts and certain French courts.
About 130 different series of law reports are held (of which 15 are South African). This is a sound core collection, but needs to be substantially enlarged.
Law reviews and journals
The library subscribes to more than 200 law journals and law reviews, of which 23 are South African. But a world-class library requires more.
The library holds loose-leaf publications, annual supplements, digests and series.
Textbooks and monographs
The library's textbook and monograph collection comprises about 6 500 volumes. This is the most difficult aspect of developing a modern constitutional law library, but a project is afoot to accelerate the growth of the collection.
In 2001 one of the diplomatic missions in South Africa donated a set of textbooks published in its own country to each of the 11 judges' chambers. A few months later, the same mission donated an extensive and valuable collection of textbooks and monographs.
The creation of the Constitutional Court's virtual, or digital, library was made possible by a generous donation from the Andrew Mellon Foundation.
The virtual library consists of an Internet portal that provides a single point of access to the library's resources - print and electronic. This means that the Court staff, legal practitioners and other courts have access to the library's resources from anywhere on the planet. Services and resources include:
The Library subscribes to the major law reports (from the English-speaking world, Germany and France ); to major foreign and local law journals and reviews; and to textbooks and monographs from major jurisdictions including South Africa, other countries in Africa, Europe, the United Kingdom, Canada, the United States and India.
Tables of contents of selected works can be searched in depth. The library has been declared a legal deposit library for official publications and is building a comprehensive collection of South African government publications.
Constitutional Court judgments and case papers
The judgments database contains the full text of all Constitutional Court judgments, summaries of judgments, court orders and directions, heads of argument, pleadings and documents. Summaries of judgments have been included specifically for the non-legal public. Users can search for cases by case name, year of judgment or subject. The judgments can be printed or downloaded free.
Index to South African legal periodicals
Users can retrieve articles, cases and legislation published in the South African legal periodical literature. The information can be searched under subject, article, case or legislation.
Guide to electronic legal sources on the Internet
The virtual library offers users access to a collection of selected websites.
The library subscribes to several online and CD-Rom databases, which are available only to primary users due to licensing agreements with the vendors.
Index to South African legal periodicals
In due course, users will be able to search the South African legal periodical literature to retrieve references to articles, cases and legislation. The information can be sought under subject, article, case or legislation.
Public Reading Room
The public reading room allows outsiders access to the Constitutional Court library. However, users will not have direct access to the collection: material needs to be requested from the librarian on duty.
The public reading room is open Monday to Friday between 8am and 5pm.
The reading room has a selective collection of material and computer terminals that allow access to the library catalogue and the virtual library website. However, users will have access to some online services.
Photocopying will be charged at 50 cents a page, payable by revenue stamps. Alternative payment methods are being investigated.
Access will, in general, only be granted to:
- admitted legal practitioners;
- academics who are teachers at tertiary institutions;
- members and researchers of commissions, statutory bodies and organs of state recognised in the Constitution or by legislation;
- post-graduate masters and doctoral students, who must present attestations from an appropriate lecturer indicating their status and the nature of the research they intend to pursue;
- researchers employed by non-governmental organisations involved with constitutional issues; and
- others who can demonstrate that they are engaged in advanced constitutional research.
Click here for the Library Wireless Internet Policy.
Finding the library
Without enthusiastic support and generous funding from abroad, the development of the library would not have been possible. It has received a number of generous gifts.
Early in 1996, the Norwegian government donated about $1-million for the development of the Library. This gave a powerful boost to the establishment of the library's collection and expanded the vision of the whole project.
In the ensuing years, the trust has received valuable donations of law books and law reports from various governments and charitable organisations.