Constitutions in transition
Constitutions in transition

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Constitutions in transition

2.1 Rights – the South African way

The first of these constitutional values is a respect for human dignity and this is the principal impetus behind Chapter 2 Bill of Rights. Section 10 of the Constitution states that ‘Everyone has inherent dignity and the right to have their dignity respected and protected’. This is reflected in the rest of the fundamental rights and freedoms contained in the chapter; many rights and freedoms are also contained in the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR).

There are some rights in the Constitution, however, that contrast sharply with many classic constitutional documents. Karl Klare (1998, p. 153) sums up the Constitution as ‘social, redistributive, caring, positive’ and comprehending of the fact that ‘political freedom and socio-economic justice are inextricably intertwined’. For this reason, the right to a healthy environment (s24); housing (s26); healthcare, food, water and social security (s27); the welfare of children (s28); and education (s29) are enshrined in the Bill of Rights.

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Figure 3 The Constitution of the Republic of South Africa

Rather than it being a document written solely to define and limit the powers of political and legal institutions, the Constitution is conscious of the social and economic inequality that pervades South Africa. This constitutional commitment to social justice is, however, not a straightforward obligation.

The Constitutional Court made it clear that regard must be had to the Bill of Rights and the Constitution as a whole. The Court also held that the duties in the Bill of Rights could only be fully understood with reference to South Africa’s social and historical context. For this reason, De Vos (2001) considers it correct that, in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765, access to expensive medical treatment for some, when many people in the province have little or no access to any form of healthcare, would contravene social justice.


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