Die inhoud, betekenis en enkele implikasies van Suid‐Afrika se eerste menseregtehandves

ABSTRACT

This article reviews the contents, meaning and some of the implications of chapter 3, the Chapter on Fundamental Rights, in South Africa's transitional constitution. The most unmistakable hallmark of the substitution of constitutional sovereignty for parliamentary sovereignty (which was negotiated at Kempton Park) has been the introduction of a justiciable bill of rights. The author shows how the concept and practice of constitutional sovereignty are invoked to entrench rights via the bills of rights. He then proceeds to explain how tensions between ‘minimalist’ and ‘optimalist’ (as well as libertarian’ and ‘liberationist') negotiators gave rise to a Chapter on Fundamental Rights which can hardly be described as a full bill of rights. Second and third generation rights in particular enjoy but limited (and some of them no) constitutional recognition and/or protection. The various rights entrenched in chapter 3 are surveyed and the scope of each is briefly identified. Provisions for the limitation and suspension of rights are also looked at and the author explains how and when someone can have recourse to court in order to uphold his or her rights when infringed or threatened by legislation or administrative action. The article concludes with a brief discussion of the significance and consequences of chapter 3 for private individuals and organisations, legal practitioners, civil servants and the judiciary.