THE INTERPRETATION OF NON-DEROGABLE RIGHTS IN SOUTH

Abstract 

This article focuses on the interpretation of non-derogable rights under the South African  Constitution of 1996. Drawing inferences from the landmark cases such as S v Makwanyane,  Mohamed v President of the Republic of South Africa, De Lange v Smuts. These cases  demonstrate how the South African jurisdiction has interpreted these rights under the new  democratic South Africa, compared to the apartheid era. In S v Makwanyane Mohammed J held  that our Constitution retains from the past only what is defensible and represents a decisive break  from that part of the past which was disgracefully racist1.  

Introduction 

According to Nodangala Zibele the word “freedom” is not enough for South African people. He  argued that this word does not wipe out the scars and wounds endured by the South African  people during the apartheid regime. All our citizens must have the ability to walk through those  gates that are opened by the word freedom, which means we are free to go anywhere at any time.  

This Article will attempt to answer the question as to how the courts have applied the  constitutional elements of life and dignity and attempt further to weave such interpretation while  focusing on the philosophies of South Africa’s understanding and application of these  fundamental concepts2.  

History of non-derogable rights in South Africa 

Apartheid was very brutal towards the black South Africans. Human rights issues only mattered  when they adversely affected whites. Courts were run by the South African Constitutional system  which was based on the doctrine of parliamentary sovereignty where parliament was supreme to  all laws and above to all arms of the state. There was no democratic rule. People were killed and  some injured by the police when they stand firm and challenge the government due to the  violation of their constitutional rights3.  

Body 

Legal framework 

South African courts are empowered by the Bill of Rights and the Constitution to heal the scars  of the past and help build a liberated society. Amongst its many roles is to enforce law against all  human rights violations directed to society and the members of the public4. Non-derogable rights  are those rights that cannot be limited even under the state emergency. These rights are found in section 37 of the South African Constitution5, and they include the following: 

The right to equality in section 9 of the Constitution, this right is protected with respect to unfair  discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or  language.  

The right to human dignity in section 10 of the Constitution, this right is protected entirely.  The right to life in section 11 of the Constitution, this right is protected entirely.  

The right to freedom and security of the person, this right is protected with respect to subsections  (1)(d) and (e) and (2)(c).  

The right to not be subjected to slavery, servitude and forced labour in section 13 of the  Constitution, this right is protected with respect to slavery and servitude.  

The rights of children in section 28 of the Constitution, this right is protected with respect to  subsection (1)(d) and (e) etc.  

The rights of arrested, detained and accused persons in section 35 of the Constitution, this right is  protected with respect to, amongst others, the exclusion of evidence if the admission of that  evidence would render the trial unfair.  

Judicial Interpretation 

In the case of S v Makwanyane the Constitutional Court delivered a judgment where  Makwanyane challenged the constitutionality of capital punishment in the constitutional  dispensation6. The Constitutional Court ruled in favour of Makwanyane that the punishment was  cruel and degraded the Bill of Rights which respects human dignity and against cruelty.7 The  court decided in favour of Makwanyane due to the new constitutional order which rejected laws  that brutalized and diminished respect for human life. In the very same case Langa J held that we  have a history of violence, personally, politically and institutionally. The state is called upon to  set an example of measured, rational, reasonable and proportionate responses to antisocial conduct and should never be seen to condone excessive violence against transgressors. Its role in  our violent society is rather to demonstrate that we are serious about the human rights the  Constitution guarantees for everyone, even suspected criminals8.  

In Mohamed v President of the Republic of South Africa the court considered the provision of  section 11 of the Constitution which guarantees everyone the right to life. The court held that  there are no exceptions to this right. However, like all other rights in the Bill of Rights, it is  subject to limitations in terms of section 36 of the Constitution. The requirements prescribed by  section 36 are that the limitation must be reasonable and justifiable in an open and democratic  society based on human dignity, equality and freedom, considering all the relevant factors including those mentioned in section 39. These considerations were considered by the Court in Makwanyane in holding that capital punishment was not justifiable under the interim  constitution9. 

Our Constitution sets different standards for protecting the right to life, to human dignity and the  right not to be treated or punished in a cruel, inhuman or degrading way. Under the constitution  these rights are not qualified by other principles of justice. There are no such exceptions to the  protection of these rights. Where the removal of a person to another country is affected by the  state in circumstances that threaten the life or dignity of such person, sections 10 and 11 of the  Bill of Rights are implicated10.  

Critical Analysis 

Section 10 and 11 of the Bill of Rights qualifies the rights to life, to dignity as non-derogable  rights under the South African constitution by requiring the state to ensure that in every  circumstances it protect these rights, as they are the most valuable rights in our constitution. The  landmark cases like Makwanyane and Mohammed had made it clear that the state has a duty to  consider these rights due to their unlimited protection under the South African Constitution. Non derogable rights in South Africa are associated with a society rooted in humanity, dignity and  justice.  

Comparative analysis with foreign jurisdictions 

Section 37 (5) of the Constitution of the South Africa several rights are listed as non-derogable  rights, even during state emergency11. This is the reflection of South African constitutional  transformative from the apartheid abuse and inequality. 

In the United Kingdom law, in article 15 of the ECHR, derogation is allowed during  emergencies, but the right to life freedom from torture, freedom from slavery and no punishment  without law are non-derogable12. Although these rights are not actually codified, courts have  confirmed that these rights are non-derogable. E.g. in the case of Chahal v UK the court held that article 3, freedom from torture and inhuman or degrading treatment, is absolute and cannot be  derogated from, even in national security cases13. 

Role of the Judiciary 

South African Courts scrutinizes any state emergency and the measures employed under it to  ensure that they do not infringe on non-derogable rights such as the right to life, to dignity and freedom from torture.  

Courts interpret section 10 (right to human dignity) as a foundational right of all rights, in cases  such as brutality and administrative injustices, courts have reinforced this right. Courts have  reinforced section 35 of the Constitution when they interpret non-derogable rights, such as right  to life, human dignity. 

Conclusion 

The way South Africa interprets non-derogable rights highlights the country’s commitment to  human life, dignity and justice following the end of apartheid. The courts have been  instrumental, using the landmark cases such as S v Makwanyane and Mohamed v President of the  Republic of South Africa, to confirm that fundamental protection, particularly the right to life and  dignity are absolute and cannot be taken away, even in state emergency.  

Bibliography 

Journal Articles 

The Jurisprudential Analysis of the Right to Life and Dignity: A South African Perspective,  Zibele Norless Nodangala & Paul S. Masumbe (2024). 

Case laws  

S v Makwanyane 1995 ZACC 3; 1995 3 1995 SA 391 (CC); 1995 6 BCLR 665 (CC). Mohamed v President of the Republic of South Africa 2001 ZACC 18; 2001 3 SA 893 (CC);  2001 7 BCLR 685 (CC). 

Chahal v The United Kingdom, Application No. 22414/93, European Court of Human Rights. 

Legislation 

The Constitution of the Republic of South Africa, 1996.

1 S v Makwanyane 1995 ZACC 3; 1995 3 1995 SA 391 (CC); 1995 6 BCLR 665 (CC). 

2 The Jurisprudential Analysis of the Right to Life and Dignity: A South African Perspective, Zibele Norless  Nodangala & Paul S. Masumbe (2024).

3Ibid. 

4Ibid.  

5Ibid.

6 S v Makwanyane 1995 ZACC 3; 1995 3 1995 SA 391 (CC); 1995 6 BCLR 665 (CC) para-94.

7Ibid- para-263. 

8Ibid- para-226.

9 Mohamed v President of the Republic of South Africa 2001 ZACC 18; 2001 3 SA 893 (CC); 2001 7 BCLR 685  (CC) para-48. 

10 Ibid para-53.  

11 Section 37 of the Constitution of the Republic of South Africa, 1996. 

12 Article 15 of the European Convention on Human Rights. 

13 Chahal v The United Kingdom, Application No. 22414/93, European Court of Human Rights.