l23. The Constitution

Our present constitution came into effect in 1996 and is the Supreme Law of South Africa. It is stated in Chapter 1 that any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. No matter what act is brought into effect by the Government or what decision is made by a court it is important to note that they can always be appealed at the Constitutional Court as the Constitution is the highest law of our country.

Chapter 2 of the Constitution sets out our countries Bill of Rights and forms the cornerstone of our democracy. The Bill of Rights sets out the basic human rights that ALL South Africans are entitled to. The rights of others, therefore, place a duty on you essentially to consider and uphold those rights.

The rights that you are faced to maintain on a daily basis in your profession are rights such as:

The right to equality – one cannot be unfairly discriminated against, be it directly or indirectly, on one or more grounds including race, gender, sex, pregnancy, marital status, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

  • The right to human dignity – everyone has the right to dignity and to have that dignity respected and protected.
  • The right to privacy – the POPI act just strengthens this and places an even larger duty on agents to make sure that all the correct procedures are followed to ensure the safekeeping of FICA and clients information.
  • The right to freedom of religion, belief and opinion – everyone is entitled to their religion and may not be discriminated against because of it.
  • The right to freedom of expression – freedom to impart information or ideas.
  • The right to freedom of association.
  • The right to freedom of trade, occupation and profession.
  • The right to property – this can only be limited through expropriation provided that the application is general. Another limitation would be the conditions in the title deed.
  • The right to housing – everyone has the right to adequate housing and no person may be evicted without a valid court order.
  • The right to access to information – all people have the right of access to information held by the state or information held by another person which is required for the protection of any right – the deeds office documents are public documents, and your clients have the right to request information held by the deeds office e.g. A copy of the deed.

It’s important to note that although we all have these rights and that there is an obligation on all of us to uphold the rights of others and ourselves, that there is a limitation placed on these rights in terms of Section 36 of the Bill of Rights. Rights can be limited provided that the limitation is:

“Reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • the relation between the limitation and its purpose; and
  • less restrictive means to achieve the purpose.”

An example of a limitation would be BEE – one cannot be discriminated against based on race, but BEE provides for the preference of previously disadvantaged racial groups.

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