If you missed Part I of our Tribute to Nelson Mandela, you can read it here.
In Part I, we reflected upon Mandela – the Man. Sadly, his time with us has come to pass, and his presence will be sorely missed. But his wisdom, humility and humanity live on, not only in our memories, but in his incomparable legacy. He lived his life passionately pursuing his ideal: attaining equal human rights for all South Africans.
Mandela – the Legacy
Nelson Mandela often made mention of his singular goal. “I will pass through this world but once, and I do not want to divert my attention from my task, which is to unite a nation.” Uniting a nation characterised by a history of discrimination, violence and blood-shed is no mean feat. Yet it is a goal that he pursued with every fibre of his being. Additionally, Mandela had a rare talent: there are few people that have walked our planet who have equaled not only his passion for and love of humanity, but also his keen insight into humanity. Insight into both our strengths and our weaknesses. He understood humanity’s frailties. “The key to the protection of any minority is to put core civil and political rights beyond the reach of temporary majorities by guaranteeing them as fundamental human rights, enshrined in a democratic constitution.” Accordingly, he was determined to ensure that the wrongs of the past would never again be repeated, in whatever form. Which is why the development of South Africa’s Constitution became such a priority. It became a matter of national importance to ensure that the hard-won freedoms were cast in concrete and rendered undisputable.
Section 2 of the Constitution states that “the Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” The Constitution of South Africa is accordingly the highest law of the land.
The Bill of Rights
The spirit of Madiba can be found in many places. One of these is in Chapter 2 of our Constitution: The Bill of Rights. Nelson Mandela often highlighted the importance of human rights, stating that “Human rights and the attainment of justice have explicitly been at the centre of our concerns.” He repeatedly emphasized the importance of a Bill of Rights, noting that “A Bill of Rights cannot be associated with the political or economic subordination of either the majority or the minority.” He also wisely recognised that, of critical importance, such a Bill of Rights had to be virtually unassailable: “Respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.”
The Bill of Rights is probably the most quoted, misquoted, used and abused of all our laws. There has been many a dinner party, braai and social gathering where a garrulous debater has quoted glibly from the Bill of Rights in support of his heated arguments and fixed opinions. The fact that he may not have read the Bill of Rights, or even know where to find it, is generally quite beside the point. In the wake of the passing of the Father of our Nation, a good way to honour his memory and all that he has contributed to our country is to acquaint (or re-acquaint) yourself with the rights that he fought so hard to win and make available to all.
- Equality: Everyone is equal before the law and has the right to equal protection and benefit of the law. No person may unfairly discriminate against anyone.
- Human dignity: Everyone has inherent dignity and the right to have their dignity respected and protected.
- Life: Everyone has the right to life.
- Freedom and security of the person: Everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily, not to be detained without trial, to be free from all forms of violence, not to be tortured, and not to be treated or punished in a cruel, inhuman or degrading way. Everyone has the right to bodily and psychological integrity.
- Slavery, servitude and forced labour: No one may be subjected to slavery, servitude or forced labour.
- Privacy: Everyone has the right to privacy, which includes the right not to have their person or home searched, their property searched, their possessions seized, or the privacy of their communications infringed.
- Freedom of religion, belief and opinion: Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
- Freedom of expression: Everyone has the right to freedom of expression, which includes freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity, and academic freedom and freedom of scientific research. This right does not extend to propaganda for war, incitement of violence, or advocacy of hatred.
- Assembly, demonstration, picket and petition: Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
- Freedom of association: Everyone has the right to freedom of association.
- Political rights: Every citizen is free to make political choices, which includes the right to form a political party, to participate in the activities and recruit members for a political party, and to campaign for a political party. Every citizen has the right to free, fair and regular elections. Every adult citizen has the right to vote in elections and to stand for public office.
- Citizenship: No citizen may be deprived of citizenship.
- Freedom of movement and residence: Everyone has the right to freedom of movement and the right to leave the Republic. Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic, and to a passport.
- Freedom of trade, occupation and profession: Every citizen has the right to choose their trade, occupation or profession freely.
- Labour relations: 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, employers’ organisation and employer has the right to engage in collective bargaining.
- Environment: Everyone has the right to an environment that is not harmful to their health or well-being, and to have the environment protected through reasonable measures that prevent pollution and ecological degradation, promote conservation, and secure ecologically sustainable development and use of natural resources.
- Property: No one may be deprived of property except in terms of law, and no law may permit arbitrary deprivation of property. Property may be expropriated for a public purpose or in the public interest, and subject to just and equitable compensation.
- Housing: Everyone has the right to have access to adequate housing. The state must take reasonable measures to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court.
- Health care, food, water and social security: Everyone has the right to have access to health care services, sufficient food and water, and social security. No one may be refused emergency medical treatment.
- Children: Every child has the right to a name and a nationality; appropriate care; basic nutrition, shelter, health care services and social services; be protected from maltreatment, neglect, abuse or degradation; be protected from exploitative labour practices; not to be required or permitted to perform work or provide services that are inappropriate for a person of that child’s age; or place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; not to be detained except as a measure of last resort; and not to be used directly in armed conflict, and to be protected in times of armed conflict. A child’s best interests are of paramount importance in every matter concerning the child.
- Education: Everyone has the right to a basic education and to further education, which the state, through reasonable measures, must make progressively available and accessible. Everyone has the right to receive education in the official language of their choice in public educational institutions where that education is reasonably practicable.
- Language and culture: Everyone has the right to use the language and to participate in the cultural life of their choice.
- Cultural, religious and linguistic communities: Persons belonging to a cultural, religious or linguistic community may not be denied the right to enjoy their culture, practise their religion and use their language.
- Access to information: Everyone has the right of access to any information held by the state and any information that is held by another person, and that is required for the exercise or protection of any rights.
- Just administrative action: Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
- Access to courts: Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or another independent and impartial tribunal or forum.
- Arrested, detained and accused persons: Everyone who is arrested for allegedly committing an offence has the right to remain silent; to be informed promptly of the right to remain silent and the consequences of not remaining silent; not to be compelled to make any confession or admission; to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest. Everyone who is detained has the right to be informed promptly of the reason for being detained; to choose and to consult with a legal practitioner; to have a legal practitioner assigned by the state and at state expense if substantial injustice would otherwise result; to challenge the lawfulness of the detention before a court; to conditions of detention that are consistent with human dignity. Every accused person has a right to a fair trial.
The rights in the Bill of Rights may be limited only in terms of law and to the extent that the limitation is reasonable and justifiable, based on human dignity, equality and freedom, and taking into account all relevant factors.
There you have it. So the next time you meet the aforeseaid garrulous debater, feel free to point him in the right direction when he shamelessly attempts to design his own version of the Bill of Rights to suit his own arguments.
State of our Nation
As we enter a new era, an era during which our beloved Madiba lives on in memory as opposed to body, we have to ask: how are his successors doing in preserving and fulfilling the foundations that he laid? Mandela was unyielding in his condemnation of the corruption, arrogance and self-preservation at the expense of the populace that so often characterises the offices of power. Who better to call upon for guidance in answering this than the Great Man himself. On the death of Chris Hani, Nelson Mandela addressed a special message to South Africa’s youth, saying that “You have lost a great hero. You have repeatedly shown that your love of freedom is greater than that most precious gift, life itself. But you are the leaders of tomorrow. Your country, your people, your organisation need you to act with wisdom. A particular responsibility rests on your shoulders.”
These words ring true today as the world stands and salutes the great hero that we have so sadly lost. South Africa is still a young democracy with lots to learn. While considerable progress has doubtlessly been made, our leaders have also made innumerable bungles, some of them undeniable whoppers! We no longer have Madiba in the wings, calmly providing gems of wisdom on how to stay on the path of righteousness. It is up to us as South Africans to act with wisdom. As we enter the year of our sixth democratic elections, a particular responsibility rests on all of our shoulders. To make our mark on that sheet of paper: that is what he fought for, that is what he won for us all. Together we can transform South Africa into the country that Mandela dreamt it would be.
“We must work for the day when we, as South Africans, see one another and interact with one another as equal human beings and as part of one nation united, rather than torn asunder, by its diversity.”
Rest in Peace Madiba. We salute you.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.