Bill of Rights

The Bill of Rights is a cornerstone of democracy in South Africa. It sets out fundamental rights that protect people in our country and affirms the values of human dignity, equality and freedom.

These are basic human rights. They are not privileges that you have to earn, work for or prove that you deserve. The Constitution recognises and protects these rights because every person has inherent dignity and is entitled to be treated with dignity, equality and respect.

The Bill of Rights applies to the state and, in certain circumstances, to private individuals and organisations too. The state has a duty to respect, protect, promote and fulfil the rights contained in the Bill of Rights.

But having a right does not always mean that the right is unlimited. The Constitution provides circumstances in which rights may be limited, provided that the requirements of the limitation clause in section 36 are met.

On this page, you can explore the rights protected by the Bill of Rights in plain language, learn about when rights may be limited, and find out what you can do if you believe that your rights have been violated.

Source: The explanations on this page are based on Chapter 2 of the Constitution of the Republic of South Africa, 1996. For the full constitutional text, see the official source linked below.

Know your rights. Understand your rights. Know what the Constitution protects.

What does section 7 say?

Section 7 introduces the Bill of Rights and establishes its constitutional foundation.

It describes the Bill of Rights as a cornerstone of democracy in South Africa. It recognises that the Bill of Rights protects the rights of all people in the country and affirms the democratic values of human dignity, equality and freedom.

Section 7(2) places a specific obligation on the state. The state must respect, protect, promote and fulfil the rights contained in the bill of rights.

Section 7(3) also makes it clear that the rights in the Bill of Rights are not necessarily absolute. They are subject to the limitations contained in, or referred to by, section 36, as well as limitations or qualifications found elsewhere in the Bill of Rights.

Why does section 7 matter?

Section 7 is important because it provides the starting point for understanding the Bill of Rights as a whole.

First, it identifies human dignity, equality and freedom as the values underlying the rights protected in Chapter 2. These values are not merely introductory words. They are important constitutional principles that inform the interpretation and application of rights.

Second, section 7(2) establishes that the state has more than one type of obligation in relation to constitutional rights:

Respect means that the state must not unjustifiably interfere with a person's rights.
Protect means that the state must take appropriate steps to protect people from violations of their rights, including where protection from other persons is required.
Promote means that the state must take steps that advance awareness and enjoyment of rights.
Fulfil means that the state must take appropriate positive measures to give effect to rights.

What these obligations require will depend on the particular right and the circumstances of the case. The wording therefore does not mean that every right operates in exactly the same way or that the state must achieve every constitutional objective immediately.

Third, section 7(3) is important because it prevents the Bill of Rights from being understood as a collection of completely unlimited rights. Some rights contain their own qualifications, while rights may also be limited in accordance with section 36, the general limitation clause.

Section 7 therefore provides the foundation for the provisions that follow. It tells us what the Bill of Rights represents, who has obligations in relation to it, and that constitutional rights operate within the framework established by the Constitution itself.

What does section 8 say?

Section 8 explains who is bound by the Bill of Rights and when constitutional rights can apply between private individuals and organisations.

Section 8(1) provides that the Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of state.

This means that government institutions and public authorities must act consistently with the rights protected in the Bill of Rights.

However, constitutional rights are not limited to situations involving the state. Section 8(2) provides that a provision of the Bill of Rights may also apply to natural persons and juristic persons, if and to the extent that it is applicable, taking into account the nature of the right and the nature of the duty imposed by that right.

Section 8(3) provides a framework for courts when a right applies between private parties. Where legislation does not give effect to a right, a court must, where necessary, apply or develop the common law to give effect to that right. A court may also develop the common law to limit a right, but any such limitation must comply with section 36(1).

Why does section 8 matter?

Section 8 matters because it explains that the Bill of Rights is not only relevant when a person is dealing with the government.

The Bill of Rights clearly binds the state, but certain rights can also have an impact on relationships between private individuals and organisations. This is sometimes referred to as the horizontal application of the Bill of Rights.

For example, constitutional rights may become relevant in disputes involving private employers, companies, landlords or other private persons. However, this does not mean that every constitutional right automatically applies in every private dispute. Section 8 requires consideration of the particular right and the nature of the duty it creates.

Section 8 is also important because it recognises the role of the courts in ensuring that the common law develops consistently with constitutional rights. Where existing legislation does not adequately give effect to a right, courts may be required to apply or develop the common law to protect that right.

In simple terms, section 8 tells us who must comply with the Bill of Rights and explains how constitutional rights can operate both between people and between people and the state.

You have the right to- or You may not be subjected to- or You may not be deprived of:

What does section 9 say?

Section 9 protects the right to equality and prohibits unfair discrimination.

Section 9(1) provides that everyone is equal before the law and has the right to equal protection and benefit of the law.

Section 9(2) explains that equality includes the full and equal enjoyment of all rights and freedoms. It also recognises that achieving equality may require legislative and other measures to protect or advance people who have been disadvantaged by unfair discrimination. This allows measures aimed at addressing disadvantage and promoting substantive equality.

Section 9(3) prohibits the state from unfairly discriminating, directly or indirectly, against anyone on one or more listed grounds. These include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The list is not closed, as the section uses the word “including”.

Section 9(4) extends the prohibition of unfair discrimination to private persons. It also requires national legislation to be enacted to prevent or prohibit unfair discrimination.

Section 9(5) provides that discrimination on one or more of the listed grounds is presumed to be unfair unless it is established that the discrimination is fair.

Why does section 9 matter?

Section 9 matters because equality is not simply about treating everyone identically. The Constitution recognises that people may experience different forms of disadvantage and that achieving genuine equality can sometimes require measures that address those inequalities.

The section therefore protects people against unfair discrimination, while also permitting measures designed to advance people who have been disadvantaged by unfair discrimination. This is an important part of the Constitution's commitment to substantive equality.

Section 9 is also important because the protection applies beyond the relationship between an individual and the state. The prohibition against unfair discrimination can also apply to private individuals and organisations, subject to the requirements of the Constitution and applicable legislation.

The distinction between discrimination and unfair discrimination is important. Not every distinction or difference in treatment automatically amounts to unfair discrimination. Where discrimination occurs on one or more of the grounds specifically listed in section 9(3), however, it is presumed to be unfair unless fairness is established.

In simple terms, section 9 protects the right to equality, prohibits unfair discrimination and recognises that achieving meaningful equality may sometimes require steps to address existing disadvantage.

What does section 10 say?

Section 10 provides that everyone has inherent dignity and has the right to have their dignity respected and protected.

The section recognises dignity as something that belongs to every person simply because they are human. It therefore protects people from treatment that undermines their worth, humanity or inherent dignity.

Why does section 10 matter?

Section 10 matters because human dignity is one of the foundational values of the South African Constitution. It is also expressly identified in section 7 as one of the values affirmed by the Bill of Rights.

The right to dignity is relevant in many areas of life, including how people are treated by the state and, in appropriate circumstances, by other individuals or organisations. It can arise in situations involving personal privacy, discrimination, detention, employment, family relationships and freedom of expression, among others.

Importantly, dignity is not something that a person has to earn or prove. Section 10 recognises that every person has inherent dignity and is entitled to have it respected and protected.

In simple terms, section 10 recognises the inherent worth of every person and protects their right to be treated in a way that respects their dignity.

What does section 11 say?

Section 11 provides simply that everyone has the right to life.

Unlike some other rights in the Bill of Rights, section 11 does not list specific qualifications or circumstances in which the right may be exercised. It establishes the protection of life as a fundamental constitutional right.

The use of the word “everyone” is significant. The right is not limited to South African citizens. It applies to every person within the scope of the Constitution.

Why does section 11 matter?

The right to life is one of the most fundamental rights protected by the Bill of Rights. Without protection of life, the enjoyment of other rights becomes impossible.

Section 11 places a constitutional obligation on the state to protect the lives of people in South Africa. It also means that the state may not arbitrarily deprive a person of their life.

The right to life must also be understood together with other provisions of the Constitution. For example, section 12 protects everyone against arbitrary deprivation of freedom and against violence, torture and cruel, inhuman or degrading treatment or punishment. Section 35 provides specific protections for people who have been arrested, detained or accused of an offence.

Section 11 is therefore both a stand-alone right and part of the broader constitutional protection of human beings, their dignity, freedom and security.

The right to life is also expressly protected during a state of emergency. Section 37 identifies the right to life as one of the rights from which there may be no derogation during a constitutionally declared state of emergency.

In short: Section 11 establishes the right to life as a fundamental right belonging to everyone and provides an essential foundation for the protection of human dignity and other rights in the Bill of Rights.

What does section 12 say?

Section 12 protects everyone's freedom and security of the person. It contains several specific protections relating to personal liberty, violence, bodily integrity and psychological integrity.

Under section 12(1), everyone has the right:

not to be deprived of their freedom arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of violence, whether from public or private sources;
not to be tortured in any way; and
not to be treated or punished in a cruel, inhuman or degrading way.

Section 12(2) further protects everyone's bodily and psychological integrity. This includes the right:

to make decisions concerning reproduction;
to security in and control over their body; and
not to be subjected to medical or scientific experiments without their informed consent.

Why does section 12 matter?

Section 12 protects people against unjustified interference with their freedom, physical security and bodily and psychological integrity.

The protection against arbitrary deprivation of freedom is particularly important because the state cannot simply deprive a person of their liberty without a lawful and justifiable basis. This protection is closely connected to the rules governing arrest and detention, which are dealt with more specifically in section 35.

The right to be free from violence is broader than protection against violence by the state. Section 12(1)(c) expressly refers to violence from public or private sources. This means that the constitutional protection is relevant not only to conduct by organs of state, but also to violence perpetrated by private persons.

The prohibition of torture and cruel, inhuman or degrading treatment or punishment provides strong protection for a person's physical and psychological integrity. These protections are particularly relevant in contexts such as detention, policing and the criminal justice system, but are not limited to those contexts.

Section 12(2) recognises that bodily autonomy is also part of personal freedom and security. A person has a right to make decisions concerning reproduction and to exercise security and control over their own body. The requirement of informed consent is particularly important in relation to medical and scientific experimentation: a person cannot simply be subjected to such experimentation without their informed consent.

Section 12 therefore protects more than physical freedom. It recognises that constitutional freedom and security include protection of the person against arbitrary detention, violence, torture, degrading treatment and unjustified interference with bodily and psychological integrity.

What does section 13 say?

Section 13 provides that no one may be subjected to slavery, servitude or forced labour.

The protection applies to everyone and prohibits these forms of exploitation as a matter of constitutional law.

Although the three terms are related, they are not identical:

Slavery involves exercising powers of ownership or control over a person, treating that person as if they were property.
Servitude involves a person being subjected to a condition in which they are required to provide services or remain in a relationship of subordination, with their freedom significantly restricted.
Forced labour involves compelling a person to perform work or services against their will, subject to the legal meaning of forced labour.

Why does section 13 matter?

Section 13 protects the fundamental freedom of a person not to be treated as an object of ownership, exploitation or coercion.

The section is broader than simply prohibiting historical forms of slavery. It also protects people from conditions in which they are compelled to provide labour or services through coercion or serious restrictions on their freedom.

This is important because exploitation can take different forms. A person does not have to be formally described as a “slave” for their constitutional rights to be infringed.

Section 13 must also be understood alongside other rights in the Bill of Rights. For example, section 12 protects everyone against violence, while section 23 protects the right to fair labour practices. Together, these provisions form part of the Constitution's broader protection of people from exploitation and abuse.

The prohibition is particularly significant because section 37's Table of Non-Derogable Rights protects section 13 against derogation (partial limitation) from the prohibition of slavery and servitude during a state of emergency.

What does section 14 say?

Section 14 provides that everyone has the right to privacy.

It specifically protects people against certain forms of interference with their privacy. This includes the right not to have:

their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications infringed.

The section therefore protects both a person's physical privacy and the privacy of their communications and possessions.

Why does section 14 matter?

Privacy is an important aspect of a person's dignity, autonomy and personal freedom. Section 14 recognises that people are entitled to a private sphere in which they can live, communicate and conduct their personal affairs without unjustified interference.

The protection is particularly relevant to searches and seizures. A search of a person's body, home or property, or the seizure of their possessions, interferes with their privacy and therefore cannot simply be undertaken without a lawful basis.

The protection of communications is also significant. Privacy is not limited to what happens inside a person's home. It can extend to the way a person communicates with others and protects the confidentiality of those communications.

However, the right to privacy is not absolute. A person's privacy may be limited where the requirements of the Constitution and applicable law are satisfied. Whether an interference with privacy is lawful will depend on the circumstances, including the nature of the interference and the legal authority relied upon.

Section 14 is therefore relevant in many areas of everyday life, including policing and criminal investigations, searches and seizures, communications, personal information and interactions between individuals and organisations.

The right to privacy should also be considered alongside other constitutional protections. For example, section 10 protects human dignity, while section 32 provides a separate right of access to information. These rights can sometimes interact with one another, particularly where information about a person is held or sought by another person or organisation.

What does section 15 say?

Section 15 protects everyone's freedom of conscience, religion, thought, belief and opinion.

It also specifically provides for religious observances at state or state-aided institutions. These observances are permitted provided that:

they comply with rules made by the appropriate public authorities;
they are conducted on an equitable basis; and
attendance is free and voluntary.

Section 15(3) further provides that the Constitution does not prevent legislation from recognising:

marriages concluded under a tradition, or under a system of religious, personal or family law; and
systems of personal and family law under a tradition or adhered to by persons professing a particular religion.

However, any such recognition must be consistent with section 15 and the other provisions of the Constitution.

Why does section 15 matter?

Section 15 protects an important aspect of individual autonomy: a person is entitled to hold, develop and express their conscience, religion, beliefs, thoughts and opinions.

The protection is not limited to belonging to a particular religion. The wording deliberately extends to conscience, thought, belief and opinion, recognising that people may hold religious beliefs, non-religious beliefs or particular philosophical and personal convictions.

Section 15(2) is also important in a constitutional democracy with diverse religious and cultural communities. It does not prohibit religious observances at state or state-aided institutions, but establishes conditions intended to ensure that such observances are conducted fairly and that participation is genuinely voluntary.

Section 15(3) recognises that South Africa's legal system may give legal recognition to certain forms of religious, traditional, personal and family law. Such recognition is not unlimited, however. Legislation recognising these systems must remain consistent with the Bill of Rights and the Constitution.

This means that freedom of religion does not place religious practices or systems of religious or personal law outside the Constitution. The exercise and recognition of religious rights must operate within the constitutional framework.

Section 15 therefore protects both individual freedom of belief and aspects of the ability of religious communities to practise their beliefs, while ensuring that these freedoms remain subject to the broader constitutional order.

What does section 16 say?

Section 16 gives everyone the right to freedom of expression.

The Constitution specifically identifies several forms of expression that fall within this right:

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.

However, section 16(2) makes clear that the constitutional right in section 16(1) does not extend to three categories of expression:

propaganda for war;
incitement of imminent violence; and
advocacy of hatred based on race, ethnicity, gender or religion, where that advocacy also constitutes incitement to cause harm.

These exclusions are part of the definition of the right itself. They are therefore different from an instance where an expression falls within the right to freedom of expression but is subsequently subject to a limitation under section 36.

Why does section 16 matter?

Freedom of expression is fundamental to an open and democratic society. It enables people to communicate ideas, receive information, criticise those in power, participate in public debate and contribute to cultural, academic and artistic life.

Importantly, section 16 protects more than the act of speaking. The express protection of receiving or imparting information and ideas recognises that freedom of expression also concerns the ability to access and communicate information. The protection of the press and other media is particularly important to public discourse and democratic accountability.

The inclusion of artistic creativity, academic freedom and scientific research also recognises that expression takes many forms. Constitutional protection is therefore not confined to ordinary verbal or written statements.

At the same time, freedom of expression has defined constitutional boundaries. Section 16(2) excludes certain particularly serious forms of expression from the right altogether. For example, advocacy of hatred does not automatically fall within section 16(2). The advocacy must be based on one of the specified grounds, namely race, ethnicity, gender or religion, and must also constitute incitement to cause harm.

It is also important to distinguish the exclusions in section 16(2) from section 36, the general limitation clause. Section 16(2) identifies expression that is outside the constitutional protection of section 16(1). Other forms of expression may fall within section 16(1) but still be subject to a limitation if the requirements of section 36 are satisfied.

Freedom of expression therefore protects robust and sometimes unpopular forms of communication, while the Constitution itself draws specific boundaries around certain forms of expression.

What does section 17 say?

Section 17 gives everyone the right, peacefully and unarmed, to:

assemble, meaning to gather together with other people;
demonstrate, meaning to publicly express or communicate a view, position or grievance, often through a public gathering or protest;
picket, meaning to gather at or near a particular place to communicate a position, support or opposition, often in connection with a dispute or cause; and
present petitions, meaning to formally ask or appeal to a person, institution or authority to take action or address a particular issue.

The right is expressly qualified by the requirement that these activities be peaceful and unarmed.

Why does section 17 matter?

Section 17 protects forms of collective participation and public expression. It recognises that people may come together to express concerns, advocate for change, support a cause or bring a grievance to the attention of others.

The right is therefore important to democratic participation. A person does not have to act alone to exercise their constitutional rights. People may collectively express their views and seek to influence public debate and decision-making.

The requirement that the assembly, demonstration, picket or petition be peaceful and unarmed is significant. Section 17 does not create a constitutional right to use violence or carry weapons while exercising these forms of participation.

At the same time, the fact that a gathering is subject to regulation does not mean that the constitutional right disappears. Laws regulating public gatherings must themselves operate within the constitutional framework. Where a restriction limits a right protected by the Bill of Rights, the relevant constitutional requirements must be considered.

Section 17 is closely connected to other rights in the Bill of Rights, particularly freedom of expression in section 16 and freedom of association in section 18. Together, these rights protect important ways in which people can express their views, associate with others and participate in South Africa's democratic life.

What does section 18 say?

Section 18 provides that everyone has the right to freedom of association.

The section does not prescribe particular organisations or types of associations. Instead, it protects the general freedom of people to associate with others.

Why does section 18 matter?

Freedom of association allows people to form, join and participate in groups and organisations according to their interests, beliefs, objectives or common causes.

This can include associations such as community organisations, professional bodies, trade unions, political parties, religious organisations, cultural organisations, civil society organisations and other voluntary groups.

The right also protects the freedom to choose whether to associate with others. In other words, freedom of association is not simply about the ability to join a group. It also concerns a person's freedom from being forced into an association in circumstances where the Constitution or law does not justify such a requirement.

Section 18 is important to a democratic society because many forms of participation and collective action depend on people being able to organise themselves. It therefore operates alongside other rights in the Bill of Rights. For example, section 17 protects peaceful assembly, demonstrations, pickets and petitions, while section 16 protects freedom of expression.

Section 18 is deliberately expressed in broad terms. The precise scope of the right, and whether a particular interference with freedom of association is constitutionally permissible, will depend on the circumstances and the applicable law.

What does section 19 say?

Section 19 protects the political rights of South African citizens.

Every citizen is free to make political choices. This includes the right to:

form a political party;
participate in the activities of, or recruit members for, a political party; and
campaign for a political party or cause.

Every citizen also has the right to free, fair and regular elections for legislative bodies established in terms of the Constitution.

Every adult citizen has the right to:

vote in elections for legislative bodies established in terms of the Constitution, and to do so in secret; and
stand for public office and, if elected, hold office.

The distinction between “citizen” and “adult citizen” is therefore significant. The political choices protected by section 19(1), and the right to free, fair and regular elections in section 19(2), are framed as rights of every citizen. The specific rights to vote and stand for public office in section 19(3) belong to adult citizens.

Why does section 19 matter?

Section 19 protects the ability of citizens to participate in South Africa's democratic political system. It recognises that democracy is not limited to elections themselves. Citizens must also be able to form political parties, participate in them, recruit members and campaign for political parties or causes.

The right to free, fair and regular elections provides an important constitutional guarantee that elections must meet democratic standards. The right to vote also includes the protection that voting must be conducted in secret, which helps protect voters from intimidation, coercion or pressure to reveal their choices.

Section 19(3)(b) goes beyond voting. It gives adult citizens the right to stand for public office and, if elected, to hold that office. Political participation therefore includes both choosing representatives and seeking to become a representative.

It is also important to distinguish section 19 from section 18, which protects freedom of association for everyone. Section 18 protects the broader freedom to associate, while section 19 specifically protects certain forms of political participation by citizens.

Section 19 is consequently central to the constitutional principle of government by the people. It protects the ability of citizens not only to choose who governs them, but also to organise politically, express political preferences and seek public office themselves.

What does section 20 say?

Section 20 provides that no citizen may be deprived of citizenship.

This is a specific constitutional protection relating to a person's status as a citizen. Unlike several of the preceding rights, section 20 does not use the word “everyone”. It specifically protects citizens.

The section does not, by itself, set out the complete rules governing the acquisition, loss or restoration of South African citizenship. Those matters are dealt with primarily through legislation governing citizenship.

Why does section 20 matter?

Citizenship establishes a person's formal legal relationship with the state and carries important rights and responsibilities. Section 20 provides constitutional protection against a citizen simply being stripped of their citizenship.

The protection is particularly significant because citizenship can affect a person's ability to exercise certain rights that the Constitution specifically reserves for citizens. For example, section 19 gives citizens particular political rights, while section 21(3) gives citizens the right to enter, remain in and reside anywhere in the Republic.

Section 20 should therefore be read together with the legislation regulating South African citizenship. The constitutional provision establishes the protection, while legislation deals with the circumstances and procedures relating to citizenship.

It is also important not to assume that every situation involving a person's citizenship status amounts to deprivation of citizenship. Questions concerning acquisition, loss, renunciation, deprivation or restoration of citizenship can involve different legal rules. Section 20 provides the constitutional starting point for understanding those questions.

What does section 21 say?

Section 21 protects freedom of movement and certain related rights.

Under section 21(1), everyone has the right to freedom of movement.

Section 21(2) provides that everyone has the right to leave the Republic.

The Constitution then gives additional protections specifically to citizens. Every citizen has the right:

to enter the Republic;
to remain in the Republic;
to reside anywhere in the Republic; and
to have a passport.

The distinction between “everyone” and “every citizen” is important. The rights to freedom of movement and to leave South Africa apply to everyone, while the constitutional rights to enter, remain in and reside anywhere in South Africa, as well as the right to a passport, are specifically conferred on citizens.

Why does section 21 matter?

Section 21 protects a person's ability to move freely and make decisions about where they go and where they live. This includes freedom of movement within the Republic and the right to leave the country.

The protection is particularly significant for citizens because it establishes a constitutional right to return to and remain in South Africa. A citizen's right to enter the Republic is therefore constitutionally distinct from the general right of everyone to leave it.

The right to reside anywhere in the Republic is also important. Citizenship does not depend on a person living in a particular province, town or community. A citizen has the constitutional right to choose where in South Africa they reside.

The right to a passport provides citizens with a further constitutional protection connected to international travel. A passport is an important document for travelling outside South Africa, and section 21(4) expressly recognises a citizen's entitlement to one.

These rights are not necessarily absolute. Like other rights in the Bill of Rights, they may be subject to constitutionally permissible limitations. Any limitation must be considered within the framework of the Constitution, including section 36, where applicable.

Section 21 should also be distinguished from section 20, which protects citizenship itself. Section 20 protects a citizen's status, while section 21 provides important rights that flow from that status, including the right to enter, remain in and reside anywhere in the Republic.

What does section 22 say?

Section 22 provides that every citizen has the right to choose their trade, occupation or profession freely.

This means that citizens have the constitutional freedom to decide what kind of work, business activity or profession they wish to pursue.

The section also makes an important distinction between choosing a trade, occupation or profession and practising it. While the choice is protected, the practice of a trade, occupation or profession may be regulated by law.

For example, certain professions may have legal requirements relating to qualifications, registration, licensing, admission or professional conduct before a person may practise them.

Why does section 22 matter?

Section 22 protects an individual's economic and professional freedom. It recognises that people should generally be able to decide how they will earn a living and what occupation or profession they will pursue.

At the same time, the right does not mean that anyone is automatically entitled to practise any profession without meeting legally prescribed requirements. The Constitution expressly permits the practice of a trade, occupation or profession to be regulated by law.

This creates an important balance between individual freedom and the legitimate regulation of professions and economic activities. Regulation may, for example, be necessary to protect the public, maintain professional standards or ensure that people providing specialised services meet appropriate requirements.

Section 22 therefore protects the freedom to choose, while recognising that the practice of that chosen occupation or profession can be subject to lawful regulation.

What does section 23 say?

Section 23 protects rights relating to labour relations and provides that everyone has the right to fair labour practices.

The section then sets out specific rights for workers, employers, trade unions and employers’ organisations.

Workers have the right to:

form and join a trade union;
participate in the activities and programmes of a trade union; and
strike.

Employers have the right to:

form and join an employers’ organisation; and
participate in its activities and programmes.

Trade unions and employers’ organisations also have the right to:

determine their own administration, programmes and activities;
organise; and
form and join a federation.

Section 23 further provides that trade unions, employers’ organisations and employers have the right to engage in collective bargaining. National legislation may regulate collective bargaining, but where that legislation limits a right in the Bill of Rights, the limitation must comply with section 36(1).

The section also allows national legislation to recognise union security arrangements contained in collective agreements. Any limitation of a right resulting from such legislation must likewise comply with section 36(1).

Why does section 23 matter?

Section 23 provides the constitutional foundation for labour rights and collective labour relations in South Africa. It recognises that workers and employers have different interests, while protecting the ability of both sides to organise and participate in collective processes.

The right to fair labour practices is broad and applies to everyone, while the specific rights in section 23 are allocated to workers, employers, trade unions and employers’ organisations according to their respective roles.

The right to form and join trade unions allows workers to organise collectively rather than having to negotiate employment matters only as individuals. The right to strike is an important mechanism through which workers can collectively advance or defend their interests.

Employers are similarly recognised as having rights to organise, including through employers’ organisations. Collective bargaining provides a framework through which employers and organised workers can negotiate matters relating to employment and labour relations.

Section 23 therefore recognises that labour relations involve more than the relationship between an individual employee and employer. It protects collective organisation, participation and bargaining, while allowing legislation to regulate these processes within the limits imposed by the Constitution.

What does section 24 say?

Section 24 gives everyone the right to an environment that is not harmful to their health or wellbeing.

It also gives everyone the right to have the environment protected for the benefit of present and future generations. This protection must be achieved through reasonable legislative and other measures that:

prevent pollution and ecological degradation;
promote conservation; and
secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.

This means that environmental protection is not limited to preventing immediate harm. The Constitution also requires measures that support the long-term protection and sustainable use of the environment.

Why does section 24 matter?

Section 24 recognises that a healthy environment is connected to people's health, wellbeing and quality of life, while also recognising the importance of protecting natural resources for future generations.

The section places environmental protection within a broader framework of sustainable development. Environmental protection and economic and social development are not treated as completely separate interests. The Constitution requires development and the use of natural resources to be ecologically sustainable, while also allowing for justifiable economic and social development.

Section 24 therefore creates both a right to an environment that is not harmful and a constitutional framework for environmental protection. It requires the state to take reasonable legislative and other measures to prevent pollution and ecological degradation, promote conservation and ensure that development and the use of natural resources are sustainable.

The reference to present and future generations is particularly important. Environmental protection is not only about addressing harm that exists today, but also about ensuring that the environment and its resources are protected for those who come after us.

What does section 25 say?

Section 25 protects the right to property and sets out the circumstances in which property may be deprived or expropriated.

First, no one may be deprived of property except in terms of a law of general application, and no law may permit the arbitrary deprivation of property.

The Constitution then distinguishes between deprivation and expropriation. Property may be expropriated only in terms of a law of general application, for a public purpose or in the public interest, and subject to compensation.

The amount of compensation, as well as when and how it must be paid, may be agreed between the affected parties or decided or approved by a court. In determining compensation, the amount, timing and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected. Section 25(3) identifies circumstances that must be considered, including:

the current use of the property;
the history of its acquisition and use;
its market value;
the extent of direct state investment and subsidy in its acquisition and beneficial capital improvement; and
the purpose of the expropriation.

For purposes of section 25, public interest includes the nation's commitment to land reform and reforms aimed at achieving equitable access to South Africa's natural resources. The protection of property is also not limited to land.

Section 25 further places obligations on the state relating to land access, tenure security and restitution. The state must take reasonable legislative and other measures, within its available resources, to enable citizens to gain access to land on an equitable basis.

People and communities whose land tenure is legally insecure because of past racially discriminatory laws or practices are entitled, to the extent provided by legislation, to legally secure tenure or comparable redress.

Similarly, a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, to restitution of that property or equitable redress.

Section 25 also expressly recognises that the state may take legislative and other measures to achieve land, water and related reform to address the effects of past racial discrimination, provided that any departure from the protections in section 25 complies with section 36(1). Parliament is required to enact the legislation referred to in section 25(6).

Why does section 25 matter?

Section 25 is important because it protects property while also recognising the constitutional importance of land reform, equitable access to natural resources, tenure security and restitution.

The protection is not an absolute prohibition on the state interfering with property. The Constitution allows deprivation where the requirements of section 25 are met and permits expropriation for a public purpose or in the public interest, subject to the constitutional requirements relating to compensation.

The distinction between deprivation and expropriation is therefore important. A deprivation involves a restriction or interference with property, while expropriation involves the state taking property for a public purpose or in the public interest. The Constitution imposes specific requirements on both, with additional requirements applying to expropriation.

Section 25 also makes clear that property rights must be understood alongside South Africa's constitutional commitment to addressing the effects of past racial discrimination. Land reform and restitution are not separate from the constitutional framework for property rights. They form part of that framework.

Section 25 therefore seeks to balance property rights and the public interest, while providing a constitutional basis for measures aimed at addressing historical dispossession, insecure land tenure and unequal access to land and natural resources.

In simple terms: You have a constitutional right to property, but that right is not absolute. The state cannot arbitrarily take or interfere with property. Where property is expropriated, the Constitution sets requirements relating to the law, the public purpose or public interest, and compensation. At the same time, section 25 recognises the need for land reform, restitution and fairer access to land and natural resources in addressing the effects of past racial discrimination.

What does section 26 say?

Section 26 provides that everyone has the right to have access to adequate housing.

The Constitution places a duty on the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. This means that the state must take steps towards improving access to adequate housing over time, using the resources available to it.

Section 26 also protects people from arbitrary eviction or demolition. No one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances. Legislation may not permit arbitrary evictions.

Why does section 26 matter?

Section 26 recognises housing as a fundamental socio-economic right and places a constitutional responsibility on the state to work towards improving access to adequate housing.

Importantly, the right is framed as a right to have access to adequate housing, rather than an unconditional guarantee that every person is immediately entitled to a particular house. The state's obligation to realise the right is subject to the requirements that its measures be reasonable and that they operate within its available resources.

The protection against eviction is also significant. Even where a person is occupying a home unlawfully or another legal dispute exists, they cannot simply be removed without a court order. The court must consider all relevant circumstances before making an eviction or demolition order.

Section 26 therefore combines a positive obligation on the state to progressively improve access to adequate housing with protection against arbitrary interference with a person's home.

In simple terms: Everyone has the right to have access to adequate housing, and the state must take reasonable steps, within its available resources, to make this right a reality over time. A person also cannot simply be evicted from their home or have it demolished. A court order is required, and the court must consider the relevant circumstances before granting it.

What does section 27 say?

Section 27 provides that everyone has the right to have access to:

health care services, including reproductive health care;
sufficient food and water; and
social security, including appropriate social assistance for people who are unable to support themselves and their dependants.

The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

Section 27 also provides that no one may be refused emergency medical treatment.

Why does section 27 matter?

Section 27 protects access to some of the basic resources and services necessary for people to live with health and dignity.

Like the right to housing in section 26, several of the rights in section 27 are framed as rights of access and are subject to progressive realisation. This means that the state is constitutionally required to take reasonable steps to expand access over time, taking into account the resources available to it. It does not mean that every person is automatically entitled to every health care service, quantity of food or water, or form of social assistance immediately and without qualification.

The right to social security is particularly important for people who are unable to support themselves and their dependants. Section 27 expressly includes appropriate social assistance within the protection of the right.

Section 27(3) provides a distinct and immediate protection concerning emergency medical treatment. No one may be refused such treatment. This protection is not expressed as being subject to progressive realisation or the state's available resources in the way that the obligations in section 27(2) are.

Section 27 therefore combines the state's longer-term obligation to progressively improve access to health care, sufficient food and water, and social security with an immediate constitutional protection against being refused emergency medical treatment.

Put simply, everyone has constitutional rights relating to access to health care, sufficient food and water, and social security. The state must take reasonable steps, within the resources available to it, to progressively make these rights more accessible. In addition, no person may be refused emergency medical treatment.

What does section 28 say?

Section 28 provides specific constitutional rights for children, and defines a child as a person under the age of 18 years.

Every child has the right:

to a name and nationality from birth;
to family care or parental care, or appropriate alternative care when removed from the family environment;
to basic nutrition, shelter, basic health care services and social services;
to be protected from maltreatment, neglect, abuse or degradation;
to be protected from exploitative labour practices;
not to be required or permitted to perform work or provide services that are inappropriate for their age or that place their wellbeing, education, physical or mental health, or spiritual, moral or social development at risk;
not to be detained except as a measure of last resort and, if detained, only for the shortest appropriate period of time;
if detained, to be kept separately from detained persons over the age of 18 and to be treated and kept in conditions that take account of the child's age;
to have a legal practitioner assigned by the state, at state expense, in civil proceedings affecting the child if substantial injustice would otherwise result; and
not to be used directly in armed conflict and to be protected in times of armed conflict.

Children who are detained also continue to enjoy the constitutional protections provided by sections 12 and 35, in addition to the specific protections provided by section 28.

Section 28(2) establishes an important constitutional principle: a child's best interests are of paramount importance in every matter concerning the child.

Why does section 28 matter?

Section 28 recognises that children require special constitutional protection because of their age, vulnerability and dependence on adults for care and development.

The section protects different aspects of a child's life, including their identity, family and parental care, basic needs, physical and emotional safety, education and development. It also protects children against exploitation, abuse and inappropriate forms of work.

The protections relating to detention recognise that depriving a child of their liberty is particularly serious. Detention must therefore be a measure of last resort, must last only for the shortest appropriate period and must take account of the child's age and particular needs.

Section 28 also protects children in certain civil legal proceedings. Where a civil matter affects a child and substantial injustice would otherwise result, the child has the right to a legal practitioner assigned by the state and paid for by the state.

The best interests of the child principle in section 28(2) is particularly significant. It requires a child's best interests to be treated as a matter of paramount importance whenever a matter concerns that child. This principle is relevant to decisions concerning children across areas such as family life, care, protection, education and legal proceedings.

Section 28 therefore provides children with rights specifically designed to protect their care, safety, development and dignity, while requiring their best interests to occupy a position of paramount importance in matters that concern them.

Every person under the age of 18 has special constitutional protections. Children have rights relating to their care, basic needs, safety and development, and must be protected from abuse, neglect, exploitation and inappropriate work. If a child is detained, detention must be a last resort and for the shortest appropriate period. Most importantly, whenever a decision or matter concerns a child, the child's best interests must be of paramount importance.

What does section 29 say?

Section 29 provides that everyone has the right to education.

The Constitution distinguishes between basic education and further education. Everyone has the right to a basic education, including adult basic education. Everyone also has the right to further education, which the state must, through reasonable measures, make progressively available and accessible.

Section 29 also protects certain language rights in education. Everyone has the right to receive education in the official language or languages of their choice at public educational institutions where that education is reasonably practicable.

In giving effect to this right, the state must consider all reasonable educational alternatives, including single-medium institutions, while taking into account:

equity;
practicability; and
the need to redress the results of past racially discriminatory laws and practices.

The Constitution also protects the right to establish and maintain independent educational institutions at one's own expense. These institutions must:

not discriminate on the basis of race;
be registered with the state; and
maintain standards that are not inferior to those at comparable public educational institutions.

The Constitution does not prevent the state from providing subsidies to independent educational institutions.

Why does section 29 matter?

Section 29 recognises education as a fundamental constitutional right and provides different protections for different levels and forms of education.

An important distinction exists between basic education and further education. The right to basic education is stated directly in section 29(1)(a). Unlike further education, it is not expressed as a right that the state must progressively realise through reasonable measures. Further education, by contrast, must be made progressively available and accessible through reasonable measures.

Section 29 also recognises South Africa's linguistic diversity by protecting the right to receive education in an official language or languages of one's choice at public educational institutions. However, this does not create an unconditional right to receive education in a chosen language at any particular institution. The right applies where such education is reasonably practicable, and the state must consider equity, practicability and the need to address the effects of past racial discrimination when determining how the right should be implemented.

The protection of independent education is also significant. People may establish independent educational institutions, but those institutions remain subject to constitutional and regulatory requirements concerning racial non-discrimination, registration and educational standards.

Section 29 therefore protects access to education, while also addressing further education, language in public education and the establishment of independent educational institutions.

Everyone has a constitutional right to basic education, including adult basic education. The state must also take reasonable measures to make further education progressively available and accessible. You may have education in an official language of your choice at a public educational institution where this is reasonably practicable, but factors such as equity, practicability and historical redress must also be considered. People may also establish independent educational institutions, provided that they meet the constitutional requirements relating to racial non-discrimination, registration and educational standards.

What does section 30 say?

Section 30 provides that everyone has the right to use the language and participate in the cultural life of their choice.

This protects people's freedom to use the languages they choose and to participate in cultural practices, traditions and activities that form part of their cultural life.

However, the Constitution places an important qualification on these rights: language and cultural rights may not be exercised in a manner that is inconsistent with any provision of the Bill of Rights.

Why does section 30 matter?

South Africa is a country with significant linguistic and cultural diversity. Section 30 protects people's ability to express and participate in that diversity.

The section recognises that language and culture can be important aspects of a person's identity, community and way of life. The protection applies to everyone and is not limited to South African citizens or to particular languages or cultures.

At the same time, cultural practices and language rights do not exist outside the Constitution. A person cannot rely on culture or language to justify conduct that is inconsistent with another right protected by the Bill of Rights.

This means that section 30 must be understood alongside other constitutional rights, including equality, human dignity and children's rights. Where the exercise of a cultural or language right affects other constitutional rights, those rights must be considered within the broader framework of the Bill of Rights.

Section 30 therefore protects linguistic and cultural freedom while ensuring that its exercise remains consistent with the constitutional rights of others.

You have the right to use the language and participate in the cultural life of your choice. However, culture or language cannot be used as a justification for conduct that violates the rights protected by the Bill of Rights. Your language and culture are protected, but they must be exercised within the Constitution.

What does section 31 say?

Section 31 protects the rights of people who belong to cultural, religious or linguistic communities.

People belonging to these communities may not be denied the right, together with other members of their community, to:

enjoy their culture;
practise their religion;
use their language; and
form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

These are rights that people may exercise together with other members of their community, recognising the communal nature of culture, religion and language.

However, these rights may not be exercised in a manner that is inconsistent with any provision of the Bill of Rights.

Why does section 31 matter?

Section 31 recognises that culture, religion and language are not only matters of individual choice. They are often shared and practised within communities.

The section therefore protects people's ability to maintain and participate in communities built around a shared culture, religion or language. It also protects the ability of those communities to establish and maintain associations and other civil society organisations through which their shared interests and practices can be expressed.

Section 31 complements other rights in the Bill of Rights, particularly freedom of religion, belief and opinion in section 15, freedom of association in section 18, and language and cultural rights in section 30. Section 31 is distinctive because it specifically protects the exercise of cultural, religious and linguistic rights together with other members of a community.

Like section 30, these rights operate within the broader constitutional framework. A cultural, religious or linguistic practice cannot be justified under section 31 if it is exercised in a manner that is inconsistent with another provision of the Bill of Rights.

Section 31 therefore protects the ability of cultural, religious and linguistic communities to exist, organise and practise their shared traditions, beliefs and languages, while ensuring that these activities remain consistent with the Bill of Rights.

In simple terms: If you belong to a cultural, religious or linguistic community, you have the right to enjoy your culture, practise your religion and use your language together with other members of that community. You may also form or join organisations that support those shared interests. However, these community rights cannot be exercised in a way that is inconsistent with the Bill of Rights.

What does section 32 say?

Section 32 provides that everyone has the right of access to information.

The Constitution distinguishes between information held by the state and information held by another person.

Everyone has the right of access to:

any information held by the state; and
information held by another person where that information is required for the exercise or protection of any rights.

This means that the constitutional right of access to information held by another person is more specific than the right relating to information held by the state. Where information is held by another person, there must be a connection between the information requested and the exercise or protection of a right.

Section 32 also requires national legislation to be enacted to give effect to this right. That legislation may include reasonable measures aimed at reducing the administrative and financial burden that giving access to information may place on the state.

Why does section 32 matter?

Access to information promotes transparency, accountability and the ability of people to exercise and protect their rights.

Access to information held by the state can enable people to understand decisions and actions taken by public bodies and obtain information relevant to matters affecting them.

The right also extends beyond government. Information held by a private person or organisation may be accessible where it is required for the exercise or protection of a right. This can be important where a person needs information in order to understand, enforce or protect their legal rights.

The legislation enacted to give effect to section 32 is the Promotion of Access to Information Act 2 of 2000 (PAIA). PAIA provides the legal framework and procedures through which requests for access to records held by public and private bodies may be made. Access is not automatic in every case, and PAIA provides circumstances in which access to particular records may be refused.

Section 32 therefore provides the constitutional foundation for access to information, while legislation such as PAIA establishes the procedures and rules through which that right is exercised.

In simple terms: You have the right to request access to information held by the state. You may also request information held by another person or private body where you need that information to exercise or protect a right. This does not mean that every request must automatically be granted. The law sets out the procedures for requesting information and circumstances in which access may lawfully be refused.

What does section 33 say?

Section 33 provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

Administrative action generally involves certain decisions or exercises of public power by government departments, officials and other bodies exercising administrative functions.

Where a person's rights have been adversely affected by administrative action, that person also has the right to be given written reasons for the action.

Section 33 requires national legislation to give effect to these rights. That legislation must:

provide for administrative action to be reviewed by a court or, where appropriate, an independent and impartial tribunal;
impose a duty on the state to give effect to the rights protected by section 33; and
promote an efficient administration.

Why does section 33 matter?

Government departments and other administrative decision-makers make decisions that can significantly affect people's lives. These may concern matters such as licences, permits, applications, benefits, immigration decisions, disciplinary processes and other exercises of administrative power.

Section 33 ensures that administrative power is not exercised arbitrarily. Administrative action must comply with the law, be reasonable and follow a procedurally fair process.

Procedural fairness generally requires an appropriate and fair process before or when a decision affecting a person is made. What fairness requires will depend on the circumstances and the nature of the administrative action involved.

The right to written reasons is also an important safeguard. Where administrative action adversely affects a person's rights, reasons can help that person understand why the decision was made and determine whether there may be grounds to challenge it.

The legislation enacted to give effect to section 33 is the Promotion of Administrative Justice Act 3 of 2000 (PAJA). PAJA provides the legal framework for administrative action and allows qualifying administrative action to be reviewed where the requirements for lawful, reasonable and procedurally fair administrative action have not been met.

Section 33 therefore promotes accountable and fair public administration by requiring administrative decision-makers to exercise their powers within the law and by providing mechanisms through which administrative action can be reviewed.

When government officials or other administrative decision-makers exercise public powers that affect you, their actions must be lawful, reasonable and procedurally fair. If administrative action adversely affects your rights, you are entitled to written reasons. If administrative action does not meet the requirements of the law, it may be possible to have the decision reviewed by a court or, where appropriate, an independent and impartial tribunal.

What does section 34 say?

Section 34 provides that everyone has the right to have a dispute that can be resolved by the application of law decided in a fair public hearing.

The dispute must be decided by:

a court; or
where appropriate, another independent and impartial tribunal or forum.

This means that the right is not limited to proceedings before courts. Certain disputes may appropriately be dealt with by other tribunals or forums, provided that the body deciding the dispute is independent and impartial.

Why does section 34 matter?

Section 34 protects access to justice and the fair resolution of legal disputes. Where a dispute can be resolved by applying the law, people must have access to an appropriate legal process through which that dispute can be determined.

The requirement that a hearing be fair protects the integrity of the process. The decision-maker must also be independent and impartial, meaning that the dispute should be decided without improper influence, bias or predetermined favour towards one of the parties.

The reference to a public hearing promotes transparency in the administration of justice. However, this does not mean that every aspect of every legal proceeding must always be open to the public. The law may provide for circumstances in which access to proceedings is restricted where this is constitutionally justified.

Section 34 does not guarantee that a person will win their case. Rather, it protects the right to have qualifying legal disputes determined through a fair process before an appropriate court, tribunal or forum.

The section is therefore an important safeguard against people being denied access to lawful mechanisms for resolving disputes and against disputes being determined through processes that lack independence, impartiality or fairness.

In simple terms: If you have a dispute that can be resolved by applying the law, you have the right to have it determined through a fair legal process before a court or, where appropriate, another independent and impartial tribunal or forum. The right gives you access to a fair process, not a guarantee that you will win your case.

Want to understand where your matter may be heard?

Visit our Courts in South Africa page to learn about the different courts in South Africa, what types of matters they deal with and how the court system is structured.

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What does section 35 say?

Section 35 protects people at different stages of the criminal justice process. It distinguishes between the rights of an arrested person, a detained person and an accused person.

If you are arrested:

Everyone arrested for allegedly committing an offence has the right to:

remain silent;
be informed promptly of the right to remain silent and the consequences of not remaining silent;
not be compelled to make a confession or admission that could be used as evidence against them;
be brought before a court as soon as reasonably possible, but no later than 48 hours after arrest. If the 48-hour period expires outside ordinary court hours or on a day that is not an ordinary court day, the person must be brought before court by the end of the first court day after the 48 hours expire;
at the first court appearance, be charged, informed why the detention should continue, or released; and
be released from detention if the interests of justice permit, subject to reasonable conditions.

The last protection is particularly important when considering bail. Section 35 does not create an unconditional right to be released on bail. It protects the right to be released from detention if the interests of justice permit, subject to reasonable conditions.

If you are detained:

Everyone who is detained, including a sentenced prisoner, has the right to:

be informed promptly of the reason for the detention;
choose and consult with a legal practitioner and be informed of this right promptly;
have a legal practitioner assigned by the state, at state expense, if substantial injustice would otherwise result, and be informed of this right promptly;
challenge the lawfulness of the detention before a court and be released if the detention is unlawful;
conditions of detention that are consistent with human dignity, including at least exercise and adequate accommodation, nutrition, reading material and medical treatment provided at state expense; and
communicate with and receive visits from their spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner.

If you are accused of an offence:

Every accused person has the right to a fair trial. This includes the right to:

be informed of the charge in sufficient detail to answer it;
have adequate time and facilities to prepare a defence;
have a public trial before an ordinary court;
have the trial begin and conclude without unreasonable delay;
be present during the trial;
choose and be represented by a legal practitioner and be informed of this right promptly;
have a legal practitioner assigned by the state, at state expense, if substantial injustice would otherwise result;
be presumed innocent, remain silent and not testify during the proceedings;
present and challenge evidence;
not be compelled to give self-incriminating evidence;
be tried in a language they understand or, where this is not practicable, have the proceedings interpreted in that language;
not be convicted for conduct that was not an offence under national or international law when it occurred;
not be tried again for an offence relating to an act or omission for which they have already been acquitted or convicted;
receive the benefit of the least severe prescribed punishment where the prescribed punishment changed between the commission of the offence and sentencing; and
appeal to, or have the matter reviewed by, a higher court.

Whenever section 35 requires information to be given to a person, it must be communicated in a language that the person understands.

Section 35 also deals with evidence obtained through violations of constitutional rights. Such evidence must be excluded if admitting it would render the trial unfair or otherwise be detrimental to the administration of justice.

Why does section 35 matter?

Section 35 protects people against the improper exercise of state power throughout the criminal justice process. Being arrested, detained or accused of a crime does not remove a person's constitutional rights.

The distinction between arrested, detained and accused persons is important because different protections apply at different stages. Some rights overlap, but section 35 provides specific safeguards according to a person's position in the criminal justice process.

The rights to remain silent, legal representation and the presumption of innocence are central protections. A person accused of an offence does not have to prove their innocence, and the state must follow a constitutionally fair process when prosecuting them.

Section 35 also places limits on detention. An arrested person cannot simply be held indefinitely without appearing before a court, and anyone who is detained may challenge the lawfulness of their detention. Detained people must also be treated in a manner consistent with human dignity.

The protection relating to unlawfully obtained evidence is equally important. Evidence is not automatically excluded simply because a constitutional right was violated in obtaining it. Section 35(5) requires its exclusion where admitting the evidence would make the trial unfair or would otherwise be detrimental to the administration of justice.

Section 35 therefore helps ensure that the criminal justice system operates according to fairness, legality and respect for human dignity, from arrest and detention through to trial and the possibility of appeal or review.

If you are arrested, detained or accused of a crime, you still have constitutional rights. You have protections such as the right to remain silent, know why you are being detained, consult a lawyer, challenge unlawful detention and receive a fair trial. An accused person is presumed innocent and cannot be compelled to incriminate themselves. If you are arrested, you must also be brought before a court within the constitutionally prescribed period. Being arrested does not mean that you have been found guilty. Guilt must be determined through a fair legal process.

What does section 36 say?

Section 36 is known as the limitation clause. It explains when and how a right protected by the Bill of Rights may lawfully be limited.

A right may be limited only in terms of a law of general application, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

A law of general application is, broadly, a law or legal rule that applies generally rather than being created simply to target a particular person or situation.

Determining whether a limitation is reasonable and justifiable requires consideration of all relevant factors, including:

the nature of the right being limited;
the importance of the purpose of the limitation;
the nature and extent of the limitation, including how seriously the right is affected;
the relationship between the limitation and its purpose, including whether the limitation actually helps achieve that purpose; and
whether there are less restrictive means of achieving the same purpose.

Section 36(2) further provides that, unless the limitation is permitted by section 36(1) or another provision of the Constitution, no law may limit a right contained in the Bill of Rights.

Why does section 36 matter?

Section 36 is important because constitutional rights do not necessarily operate without limits. At the same time, government cannot simply restrict a constitutional right whenever it considers doing so convenient or desirable.

Any limitation must satisfy the constitutional requirements in section 36. This involves a careful balancing exercise, often referred to as a proportionality assessment, between the right being affected and the purpose that the limitation seeks to achieve.

For example, the more serious the interference with a constitutional right, the stronger the justification for that interference will generally need to be. There must also be a proper relationship between the limitation and its purpose, and consideration must be given to whether the purpose could reasonably be achieved in a way that restricts the right less severely.

Section 36 must also be distinguished from provisions in the Bill of Rights that contain their own internal qualifications or boundaries. For example, some rights are expressly framed by concepts such as reasonableness, available resources or reasonable practicability. Section 36 provides the general constitutional framework for limitations, while the wording of each individual right must also be considered.

The limitation clause therefore creates an important balance. It recognises that rights may sometimes need to be limited in a democratic society, while ensuring that any limitation must be legally and constitutionally justified.

A practical example: Privacy and police searches

Section 14 of the Constitution protects the right to privacy, including protection against having your person, home or property searched.

However, this does not mean that the police can never lawfully search a person or their property. The Criminal Procedure Act 51 of 1977 provides legal powers relating to searches and seizures in specified circumstances, including searches conducted under a search warrant and certain circumstances in which a search may lawfully take place without a warrant.

A lawful search may interfere with a person's privacy, but the fact that a constitutional right is affected does not automatically make the search unconstitutional. The legal authority for the search, the circumstances in which it was conducted and the constitutional justification for the interference must be considered.

This illustrates the basic idea behind section 36: having a constitutional right does not necessarily mean that the right can never be restricted. The restriction must, however, have a proper legal basis and satisfy the requirements of the Constitution.

In simple terms: Your constitutional rights are extremely important, but not every right is absolute. A right cannot simply be restricted because someone in authority wants to restrict it. A limitation must have a proper legal basis and must be reasonable and justifiable in a democratic society founded on human dignity, equality and freedom.

When deciding whether a limitation is constitutional, factors such as which right is affected, why it is being limited, how severely it is being limited, whether the limitation actually serves its purpose, and whether there is a less restrictive way of achieving that purpose must be considered.

What does section 37 say?

Section 37 regulates when a state of emergency may be declared, how long it may last, what happens to constitutional rights during that period and what safeguards continue to apply.

A state of emergency may be declared only in terms of an Act of Parliament and only where:

the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or another public emergency; and
declaring a state of emergency is necessary to restore peace and order.

A declaration operates only prospectively (looking forward in time), meaning that it cannot operate retrospectively (going back in time).

A state of emergency may initially remain in force for no more than 21 days. The National Assembly may extend it for periods of no more than three months at a time.

The first extension requires the support of a majority of the members of the National Assembly. Any further extension requires the support of at least 60% of its members. An extension may be approved only after a public debate in the National Assembly.

Importantly, the courts retain oversight during a state of emergency. A competent court may determine whether the:

declaration of the state of emergency is valid;
extension of the state of emergency is valid; or
legislation or other action taken as a consequence of the emergency is valid.

Can constitutional rights be restricted during a state of emergency?

Yes, but only under strict constitutional conditions. During a state of emergency, legislation may derogate from certain rights. In simpler terms, this means that the law may temporarily depart from or suspend certain protections that would ordinarily apply.

A derogation is permitted only to the extent that it is strictly required by the emergency. Emergency legislation must also comply with South Africa's applicable international law obligations, comply with the protections contained in section 37 and be published in the national Government Gazette as soon as reasonably possible after it is enacted.

However, certain constitutional protections are non-derogable, either entirely or to the extent specified by the Constitution. In simple terms, these are protections that cannot be temporarily suspended or departed from during a state of emergency, to the extent protected by section 37.

The Constitution identifies the following rights as wholly or partly non-derogable:

Equality (section 9): protected against unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language.
Human dignity (section 10): protected entirely.
Life (section 11): protected entirely.
Freedom and security of the person (section 12): specified protections relating to torture, cruel, inhuman or degrading treatment or punishment, and medical or scientific experiments without informed consent are non-derogable.
Slavery, servitude and forced labour (section 13): the protections against slavery and servitude are non-derogable.
Children (section 28): specified protections concerning maltreatment, neglect, abuse, degradation, exploitative labour, detention and armed conflict are non-derogable to the extent set out in section 37.
Arrested, detained and accused persons (section 35): specified protections remain non-derogable to the extent set out in section 37.

Section 37 itself also cannot be derogated from.

Emergency measures may also never indemnify the state or another person for an unlawful act.

What happens if someone is detained without trial during a state of emergency?

Section 37 provides detailed safeguards where a person is detained without trial as a result of a derogation during a state of emergency. Among other protections:

an adult family member or friend must be contacted as soon as reasonably possible and informed of the detention;
the person's name, place of detention and the emergency measure authorising the detention must be published in the national Government Gazette within five days;
the detainee may choose and receive visits from a medical practitioner and a legal representative;
a court must review the detention as soon as reasonably possible and no later than 10 days after the detention began;
the court must release the detainee unless continued detention is necessary to restore peace and order;
if the person remains detained, they may seek a further court review once 10 days have passed since the previous review;
the detainee may appear personally before the court, be represented by a legal practitioner and make representations against continued detention; and
the state must provide the court with written reasons justifying continued detention and provide a copy to the detainee at least two days before the review.

If a court orders the detainee's release, the person may not simply be detained again on the same grounds. The state must first show a court good cause for re-detaining that person.

These safeguards do not apply in the same way to non-South African citizens detained as a consequence of an international armed conflict. In those circumstances, the state must comply with the standards binding on South Africa under international humanitarian law.

Why does section 37 matter?

A state of emergency may give the state extraordinary powers at a time of serious national crisis. Section 37 ensures that these powers are themselves subject to the Constitution.

Declaring a state of emergency does not suspend the Constitution or give government unlimited authority. The declaration must satisfy strict requirements, operates for a limited period and remains subject to parliamentary and judicial oversight.

Section 37 also recognises that an extreme emergency may justify temporary departures from some constitutional protections. However, those departures must be strictly required by the emergency, and certain fundamental protections remain non-derogable.

The detailed safeguards surrounding detention without trial are particularly important because emergency detention represents an exceptional exercise of state power. Even in those circumstances, detainees retain important protections relating to court oversight, legal representation, medical access and repeated review of their detention. Section 37 therefore creates a constitutional framework for responding to extraordinary national emergencies while ensuring that emergency powers remain limited, reviewable and subject to fundamental human rights protections.

A historical example: States of emergency during apartheid

South Africa's history provides an important example of why constitutional safeguards during a state of emergency matter.

During apartheid, states of emergency were used in response to political unrest and resistance. In July 1985, the apartheid government declared a state of emergency in parts of the country. In June 1986, a nationwide state of emergency was declared. Emergency measures gave the state extensive powers, including powers relating to detention and restrictions on gatherings, movement and media coverage.

These states of emergency occurred before the current Constitution came into force. Section 37 of the Constitution of the Republic of South Africa, 1996 now subjects a state of emergency to strict constitutional safeguards, including time limits, parliamentary oversight, judicial review and the protection of non-derogable rights.

What about the COVID-19 lockdown?

The COVID-19 pandemic provides a useful comparison because, despite the seriousness of the crisis and the extensive restrictions imposed, South Africa did not declare a state of emergency under section 37.

Instead, a national state of disaster was declared under the Disaster Management Act 57 of 2002, and regulations were issued under that legal framework.

A state of disaster and a state of emergency are not the same thing. A state of disaster does not activate section 37's special constitutional regime allowing for derogation from certain rights.

This does not mean that constitutional rights can be restricted without justification during a state of disaster. Restrictions imposed through disaster legislation remain subject to the Constitution and the ordinary constitutional framework governing limitations of rights, including section 36.

The COVID-19 example therefore illustrates an important distinction: not every national crisis amounts to a constitutional state of emergency, even where government imposes significant restrictions in response to the crisis.

In simple terms: A state of emergency can be declared only when South Africa faces a serious threat to the life of the nation and the declaration is necessary to restore peace and order. Even then, the government does not receive unlimited power. A state of emergency is time-limited, Parliament must approve extensions, courts can review emergency measures, and any temporary departure from constitutional protections must meet strict requirements. Most importantly, certain fundamental rights and protections cannot be suspended at all, or cannot be suspended to the extent specified by the Constitution, even during a state of emergency.

What does section 38 say?

Section 38 explains who may approach a court when a right in the Bill of Rights has been infringed or threatened.

A person does not necessarily have to wait until a constitutional right has already been violated. Section 38 also allows a competent court to be approached where a right is threatened. The following people or organisations may approach a competent court:

a person acting in their own interest;
a person acting on behalf of someone who cannot act in their own name;
a person acting as a member of, or in the interests of, a group or class of people;
a person acting in the public interest; and
an association acting in the interests of its members.

Where an infringement or threatened infringement of a right is established, the court may grant appropriate relief. Section 38 expressly provides that this may include a declaration of rights, although the appropriate remedy will depend on the circumstances of the case.

Why does section 38 matter?

Rights have limited practical value if there is no way to enforce them. Section 38 provides a constitutional mechanism through which people can approach the courts when rights in the Bill of Rights are infringed or threatened.

Importantly, section 38 adopts a broad approach to who may bring a constitutional rights matter before a court. A case does not always have to be brought only by the individual directly affected.

For example, where a person is unable to act in their own name, another person may be able to approach the court on their behalf. A person may also act in the interests of a group or class of people, while an association may act in the interests of its members.

Section 38 also permits public-interest litigation. This can allow constitutional issues affecting the broader public to be brought before a court even where the person bringing the case is not seeking relief only for themselves.

However, section 38 does not mean that anyone can bring any case before any court. The person bringing the matter must fall within one of the categories recognised by section 38, must allege that a right in the Bill of Rights has been infringed or threatened, and must approach a competent court, meaning a court with the legal authority to hear the matter.

Section 38 therefore helps turn the Bill of Rights from a statement of constitutional rights into a framework through which those rights can be protected and enforced through the courts.

If you believe that a right in the Bill of Rights has been violated or is under threat, section 38 provides a way for the matter to be taken to an appropriate court. You may be able to approach the court for yourself, on behalf of someone who cannot act for themselves, for a group or class of people, in the public interest, or through an association acting for its members. The court can then grant an appropriate remedy where the legal requirements are met.

Where would you enforce your rights?

The appropriate court will depend on the nature of the matter and the court's jurisdiction.

Visit our Courts in South Africa page to learn about the different courts, their roles and the types of matters they may hear.

Explore: Courts in South Africa →

What does section 39 say?

Section 39 explains how the Bill of Rights must be interpreted and how its values influence the interpretation and development of South African law.

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; and
consider international law.

A court, tribunal or forum may also consider foreign law.

There is an important distinction between these two requirements. Courts must consider international law when interpreting the Bill of Rights, but they are not required to follow it automatically. They may consider foreign law, meaning that foreign law can assist with interpretation but does not have to be considered in every case and is not automatically binding on South African courts.

Section 39 also extends beyond the interpretation of the Bill of Rights itself. When interpreting legislation, or when developing common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

In this context, the phrase “spirit, purport and objects” refers broadly to the values, purposes and aims reflected in the Bill of Rights. This means that South African law should, where it is interpreted or developed, be approached consistently with the constitutional values and protections embodied in the Bill of Rights.

Finally, section 39 makes clear that the Bill of Rights is not necessarily the only source of rights and freedoms in South African law. Rights and freedoms may also exist under common law, customary law or legislation, provided that they are consistent with the Bill of Rights.

Why does section 39 matter?

Section 39 ensures that the Bill of Rights influences the broader South African legal system, rather than operating only when a person directly relies on a particular constitutional right.

The Constitution requires courts, tribunals and forums to interpret the Bill of Rights in a way that promotes the foundational values of human dignity, equality and freedom.

The requirement to consider international law also places constitutional interpretation within a broader international legal context. Foreign law may provide additional guidance or comparative perspectives, but South African courts remain responsible for interpreting and applying the South African Constitution.

Section 39(2) is particularly important because constitutional values also influence the interpretation and development of other areas of law. Legislation must be interpreted, and the common law and customary law developed, in a manner that promotes the spirit, purport and objects of the Bill of Rights.

Section 39(3) also recognises that rights may have sources outside the Constitution. The Bill of Rights therefore does not eliminate rights and freedoms recognised by legislation, common law or customary law, as long as those rights and freedoms are consistent with the Bill of Rights.

Section 39 therefore helps ensure that the values and protections of the Bill of Rights are reflected throughout the interpretation and development of South African law.

In simple terms: The Bill of Rights is not interpreted in isolation. When courts, tribunals and forums interpret it, they must promote the constitutional values of human dignity, equality and freedom and must consider international law. They may also look at foreign law for guidance. The Bill of Rights also influences how other South African laws are interpreted and developed. And importantly, the Constitution does not say that the Bill of Rights contains every right that can exist in South African law. Other rights may come from legislation, common law or customary law, as long as they are consistent with the Bill of Rights.

Want to read the Constitution yourself?

We encourage you to go beyond these explanations and read the Constitution for yourself.

You can read the full Chapter 2: Bill of Rights on the official South African Government website. The Constitution is also available in South Africa's official written languages, making it possible to read this important document in the language that is most accessible to you.

Know your rights. Read your Constitution.

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Bill of Rights

The Bill of Rights is a cornerstone of democracy in South Africa. It sets out fundamental rights that protect people in our country and affirms the values of human dignity, equality and freedom.

These are basic human rights. They are not privileges that you have to earn, work for or prove that you deserve. The Constitution recognises and protects these rights because every person has inherent dignity and is entitled to be treated with dignity, equality and respect.

The Bill of Rights applies to the state and, in certain circumstances, to private individuals and organisations too. The state has a duty to respect, protect, promote and fulfil the rights contained in the Bill of Rights.

But having a right does not always mean that the right is unlimited. The Constitution provides circumstances in which rights may be limited, provided that the requirements of the limitation clause in section 36 are met.

Know your rights. Understand your rights. Know what the Constitution protects.

Rights (section 7)

What does section 7 say?

Section 7 introduces the Bill of Rights and establishes its constitutional foundation.

It describes the Bill of Rights as a cornerstone of democracy in South Africa. It recognises that the Bill of Rights protects the rights of all people in the country and affirms the democratic values of human dignity, equality and freedom.

Section 7(2) places a specific obligation on the state. The state must respect, protect, promote and fulfil the rights contained in the bill of rights.

Section 7(3) also makes it clear that the rights in the Bill of Rights are not necessarily absolute. They are subject to the limitations contained in, or referred to by, section 36, as well as limitations or qualifications found elsewhere in the Bill of Rights.

Why does section 7 matter?

Section 7 is important because it provides the starting point for understanding the Bill of Rights as a whole.

First, it identifies human dignity, equality and freedom as the values underlying the rights protected in Chapter 2. These values are not merely introductory words. They are important constitutional principles that inform the interpretation and application of rights.

Second, section 7(2) establishes that the state has more than one type of obligation in relation to constitutional rights:

Respect means that the state must not unjustifiably interfere with a person's rights.

Protect means that the state must take appropriate steps to protect people from violations of their rights, including where protection from other persons is required.

Promote means that the state must take steps that advance awareness and enjoyment of rights.

Fulfil means that the state must take appropriate positive measures to give effect to rights.

What these obligations require will depend on the particular right and the circumstances of the case. The wording therefore does not mean that every right operates in exactly the same way or that the state must achieve every constitutional objective immediately.

Third, section 7(3) is important because it prevents the Bill of Rights from being understood as a collection of completely unlimited rights. Some rights contain their own qualifications, while rights may also be limited in accordance with section 36, the general limitation clause.

Section 7 therefore provides the foundation for the provisions that follow. It tells us what the Bill of Rights represents, who has obligations in relation to it, and that constitutional rights operate within the framework established by the Constitution itself.

Application (section 8)

What does section 8 say?

Section 8 explains who is bound by the Bill of Rights and when constitutional rights can apply between private individuals and organisations.

Section 8(1) provides that the Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of state.

This means that government institutions and public authorities must act consistently with the rights protected in the Bill of Rights.

Why does section 8 matter?

Section 8 matters because it explains that the Bill of Rights is not only relevant when a person is dealing with the government.

The Bill of Rights clearly binds the state, but certain rights can also have an impact on relationships between private individuals and organisations. This is sometimes referred to as the horizontal application of the Bill of Rights.

In simple terms, section 8 tells us who must comply with the Bill of Rights and explains how constitutional rights can operate both between people and between people and the state.

You have the right to- or You may not be subjected to- or You may not be deprived of:

Equality (section 9)

Human dignity (section 10)

Life (section 11)

Freedom and security of the person (section 12)

Slavery, servitude and forced labour (section 13)

Privacy (section 14)

Freedom of religion, belief and opinion (section 15)

Freedom of expression (section 16)

Assembly, demonstration, picket and petition (section 17)

Freedom of association (section 18)

Political rights (section 19)

Citizenship (section 20)

Freedom of movement and residence (section 21)

Freedom of trade, occupation and profession (section 22)

Labour relations (section 23)

Environment (section 24)

Property (section 25)

Housing (section 26)

Health care, food, water and social security (section 27)

What does section 27 say?

Section 27 provides that everyone has the right to have access to:

health care services, including reproductive health care;

sufficient food and water; and

social security, including appropriate social assistance for people who are unable to support themselves and their dependants.

The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

Section 27 also provides that no one may be refused emergency medical treatment.

Why does section 27 matter?

Section 27 protects access to some of the basic resources and services necessary for people to live with health and dignity.

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The right to social security is particularly important for people who are unable to support themselves and their dependants. Section 27 expressly includes appropriate social assistance within the protection of the right.

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Section 27 therefore combines the state's longer-term obligation to progressively improve access to health care, sufficient food and water, and social security with an immediate constitutional protection against being refused emergency medical treatment.

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Children (section 28)

What does section 28 say?

Section 28 provides specific constitutional rights for children, and defines a child as a person under the age of 18 years.

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Every child has the right:

to a name and nationality from birth;

to family care or parental care, or appropriate alternative care when removed from the family environment;

to basic nutrition, shelter, basic health care services and social services;

to be protected from maltreatment, neglect, abuse or degradation;

to be protected from exploitative labour practices;

not to be required or permitted to perform work or provide services that are inappropriate for their age or that place their wellbeing, education, physical or mental health, or spiritual, moral or social development at risk;

not to be detained except as a measure of last resort and, if detained, only for the shortest appropriate period of time;