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Other rights

That the Bill of Rights has a section devoted to children does not mean that the rights in the others sections do not apply to them too. The sections that deal with equality, human dignity, religion and health - as well as many others - are especially relevant and also apply to children. 

Key Constitutional Court judgments

Unlike children, gays and lesbians do not have a special section in the Bill of Rights devoted to their rights. Rather, the relevant part of section 9 of the Constitution, entitled "Equality", states that:

"(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."

Gays and lesbians are protected by the inclusion of sexual orientation as one of the listed grounds on which unfair discrimination may not take place.

The listing of specific cases in section 9(3) does not mean, however, that to be considered unconstitutional, discrimination would have to be based on one of the grounds mentioned.

Gay rights might enjoy protection even in the absence of the specific reference to sexual orientation. But their explicit mentioning gives our Bill of Rights a special place in the world: South Africa was the first country to enshrine gay rights in its Constitution and, in so doing, provide its citizens with constitutional protection from discrimination on the basis of their sexual orientation.

A number of decisions handed down by the Constitutional Court confirm that this section prohibits the state from unfairly discriminating against gays and lesbians. The legal term that describes this is "vertical discrimination", because it operates from the top (from the level of the government) downwards (to the citizen).

But what about private individuals - people such as employers, doctors, hotel owners or shopkeepers - who can also be a source of discrimination? This question of "horizontal discrimination", committed by ordinary people (or even organisations and companies), is tackled by section 9(4) of the Constitution. It says:

(4) "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)."

Section 8(2), which says a provision of the Bill of Rights binds a naturThe Constitutional Court has played a profound role in enforcing this prohibition against such unfair discrimination. The Judges have, in a number of cases, struck down or adjusted legislation that violates the constitutional right to equality.

National Coalition for Gay and Lesbian Equality and another v minister of justice and others (read the judgment)

This case dealt with the offence of sodomy in the common-law (that general body of law that isn't contained in statutes but is based on judicial decisions and custom). The crux of this matter was that the law prohibited sodomy between two consenting adult men.

The Constitutional Court had to confirm an order that the existence of this common-law offence was unconstitutional and invalid - as were references to sodomy in three statutes.

The Court found that the existence of these offences violated the right to equality.

Sodomy laws criminalised the intimate relationships of a vulnerable minority group - gay men. This degrading treatment constituted a violation of the rights to dignity and privacy.

These offences - which did not constitute reasonable or justifiable limitations on the rights of gay men to equality, dignity and privacy - were unconstitutional and invalid.

National Coalition for Gay and Lesbian Equality and others v minister of home affairs and others (read the judgment)

The High Court had declared section 25(5) of the Aliens Control Act of 1991 unconstitutional because it omitted to give persons who were partners in permanent same-sex life partnerships the benefits it extended to "spouses".

The case, referred to the Constitutional Court for confirmation, considered whether it was unconstitutional to allow the immigration of the foreign spouses of permanent South African residents but not to afford the same benefits to South African gays and lesbians in permanent same-sex life partnerships with foreigners.

The Court held that section 25(5) suggested that gays and lesbians were unworthy of having their family lives respected or protected - an invasion of their dignity.

Section 25(5) discriminated unfairly on the grounds of sexual orientation and marital status, and seriously limited rights to equality and dignity in a way that was not reasonable and justifiable.

The Court held Section 25(5) to be unconstitutional and decided that to read words into the statute would be better than to strike down the problematic section. The words "or partner in a permanent same-sex life partnership" needed to be added.

Du Toit and another v minister of welfare and others (read the judgment)

Two partners in a longstanding lesbian relationship had brought an application in the Pretoria Children's Court jointly to adopt two children. But, because the Child Care Act confined joint adoption to married couples, custody and guardianship rights could be granted to one partner only.

The applicants then brought an application challenging the constitutionality of certain provisions of the Child Care Act and the Guardianship Act. The High Court agreed.

In the confirmation proceedings, the Constitutional Court found that the statutory provisions discriminated on the grounds of sexual orientation and marital status, and that the dignity of the first applicant had been infringed. The Court held that the legislation also infringed the principle that a child's best interests were paramount. It confirmed the order of constitutional invalidity.

Satchwell v the president of the Republic of South Africa (read the judgment)

A High Court order had declared sections 8 and 9 of the Judges' Remuneration and Conditions of Services Act unconstitutional to the extent that they afforded benefits to the spouses of judges but not to their same-sex life partners.

The applicant, a judge, and her same-sex partner lived as a married couple but were not legally "spouses".

The Constitutional Court found that the provisions unfairly and unjustifiably discriminated on the basis of sexual orientation. It ordered that sections 8 and 9 be read as according benefits not only to spouses of judges but also to permanent same-sex life partners of judges where reciprocal duties of support had been undertaken.

J and B v the director-general of home affairs and others (read the judgment)

This case concerned provisions of the Children's Status Act of 1987, which defined the status of children conceived by artificial insemination.

Section 5 of the act provided that, where a married couple used the gamete or gametes of another person to conceive a child through artificial insemination, that child be considered the legitimate child of the married couple.

The two applicants had been involved in a permanent same-sex partnership since 1995. In August 2001, the second applicant gave birth to twins conceived with sperm from an anonymous donor.

Both applicants wanted to be registered as the parents of the twins, but only the second applicant, as the "birth-mother", succeeded.

The High Court declared the section unconstitutional on the grounds that it unfairly discriminated on the basis of sexual orientation.

Justice Goldstone - delivering the judgment in the Constitutional Court's confirmation hearing - declared section 5 discriminatory and unjustifiable.

The Court ordered that the section be read to provide the same status to children born from artificial insemination to same-sex permanent life partners.al or a juristic person if applicable, is also relevant here.

Why protect workers' rights?

The exploitation of workers was a feature of life in South Africa for decades. Apartheid thrived on cheap labour: workers had to contend with the migrant labour system, passes and influx control, job reservation, poverty wages and oppressive laws.

Nevertheless, trade unions were an important source of resistance. In the 1980s Cosatu organised mass strikes against new labour laws and workers emerged as a strong political force.

South Africa's Constitution now goes far in guaranteeing workers' rights, such as the right to strike.

Section 23 - Labour relations

The rights afforded to citizens generally apply to workers too - such as the rights to equality, privacy, dignity and life. But some sections in the Bill of Rights are especially useful to workers.

Section 23, the most relevant one here, is entitled "Labour relations" and reads:

    Everyone has the right to fair labour practices.
    Every worker has the right to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike.
    Every employer has the right to form and join an employers' organisation; and to participate in the activities and programmes of an employers' organisation.
    Every trade union and every employers' organisation has the right to determine its own administration, programmes and activities; to organise; and to form and join a federation.
    Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
    National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
This section guarantees workers the right to fair labour practices, to form and join trade unions, and to participate in union activities and strikes.

Likewise, employers have the right to form and join employers' organisations and to take part in their activities. These groups have the right to organise, form federations and engage in collective bargaining.

The right to strike is written into the Constitution, but the right of employers to lock out their workers is not expressly included. However, the Labour Relations Act grants employers this right in certain situations.

New legislation

Since 1994, Parliament has passed a lot of new legislation that deals with labour issues.

Basic Conditions of Employment Act of 1997

This Act, which came into effect on 1 December 1998, applies to all employees and employers except the South African National Defence Force, various intelligence bodies and unpaid volunteers working for charities.

It limits the hours that may be worked in a week and regulates meal breaks and rest periods. But these conditions do not apply to all categories of workers, for example to senior managers.

The Act also sets entitlement to annual leave, sick leave, maternity leave and family-responsibility leave. It explains what workers can expect if their employment is terminated.

This legislation prohibits forced labour and the employment of children under 15, and gives the Minister of Labour the power to place restrictions on the employment of children over 15.

Labour Relations Act of 1995

The Labour Relations Act, which came into effect on 11 November 1996, intends to bring labour law into conformity with the Constitution and with international law. It recognises and regulates the rights of workers to organise and join trade unions, and the right to strike. It guarantees trade union representatives access to the workplace and regulates the right of employers to lock workers out in certain situations.

It also facilitates collective bargaining and makes provision for bargaining councils.

The Act also established a number of important bodies, such as the Commission for Conciliation, Mediation and Arbitration - which creates simple procedures for the arbitration and resolution of labour conflict - and the Labour Court and Labour Appeals Court, which adjudicate disputes.

This legislation prohibits unfair dismissal and defines a dismissal as automatically unfair if it is due to the exercise of labour rights (including participation in or support for a legal strike or protest), pregnancy, or unfair discrimination on the ground of race, gender and other grounds.

Employment Equity Act of 1998

This legislation, which came into effect on 9 August 1999, prohibits unfair discrimination on grounds of race, gender, sex, pregnancy and marital status, among other things. Affirmative action, however, is allowed.

The Act regulates medical testing, HIV testing and psychological testing.

The Act requires designated employers (for example, those with more than 50 employees) to conduct a detailed analysis of employment policies, practices, procedures and the working environment to identify barriers that adversely affect the designated groups: black people, women and people with disabilities.

Such employers need to prepare employment equity plans.

The Skills Development Act of 1998

The Act, which came into effect on 10 September 1999, aims to develop and improve the skills of the South African workforce. It provides a framework for the development of skills of people at work and establishes a number of bodies to co-ordinate and oversee the training and development of South Africa's workforce.