P1-LU7 — The Universal Component: The History of Human Rights in South Africa
← P1-LU6 Liberation Movement | P1-00 - Index
Learning Outcomes
After studying this unit you should be able to:
- - Identify the approach to constitutionalism that would best ensure an open and free democratic society
- - Describe how the testing capacity of the courts developed in South African history
- - Understand where the idea of human rights originated
- - Discuss how ubuntu had an impact on the development of human-rights law
- - Know whether human rights were protected in South Africa before 1994
Overview
This unit covers the third component of South African law — the universal (human-rights) component. The Constitution introduced democratic constitutionalism into SA law for the first time, making the protection of human rights the cornerstone of the entire legal system.
7.1 The Principle of Constitutionalism
Constitutionalism = the idea that the power of the state should be controlled and limited so that an open and free democracy can flourish.
Two models of constitutionalism
| Model | Description | SA application |
|---|---|---|
| Parliamentary supremacy | Parliament is supreme — can pass any law without judicial check | SA before 1994 (apartheid era) |
| Constitutional supremacy | The Constitution is supreme — all law and government action must comply with it | SA after 1994 (current system) |
⚠️ South Africa deliberately chose constitutional supremacy over parliamentary supremacy — because under parliamentary supremacy, the apartheid government could and did enact any law it wished without limitation.
7.2 Historical Development of the Courts' Testing Power (Judicial Review)
| Era | Courts' power to test legislation |
|---|---|
| Before 1994 | No testing power — courts could not strike down legislation; parliament was supreme |
| 1994 Interim Constitution | Courts gained power to test legislation against the Bill of Rights |
| 1996 Final Constitution | Full judicial review entrenched — Constitutional Court as apex court for constitutional matters |
Why could courts not stand up to apartheid legislation?
The Truth and Reconciliation Commission (TRC) identified three reasons:
- 01The legal system operated under parliamentary supremacy — courts had no power to strike down legislation
- 02Judges were appointed from a narrow (white) pool and shared the worldview of the ruling class
- 03Legal formalism — judges applied the law mechanically without questioning its moral basis
7.3 The Origins of Human Rights
Ancient roots: Greek philosophy & natural law
- - Greek philosophers (Stoics) developed the idea of natural law — universal rules based on reason that apply to all humans
- - This evolved into the idea that all humans have inherent rights by virtue of their humanity
Modern development: The Age of Reason (Enlightenment, 17th–18th centuries)
| Thinker | Contribution |
|---|---|
| John Locke | Natural rights: life, liberty, property — government exists to protect these |
| Jean-Jacques Rousseau | Social contract — government derives authority from the consent of the governed |
| Montesquieu | Separation of powers — executive, legislative, judicial must be separate |
These ideas gave rise to:
- - The French Declaration of the Rights of Man and Citizen (1789) (triggered by the French Revolution)
- - The American Declaration of Independence (1776)
- - Eventually the United Nations Universal Declaration of Human Rights (1948)
The Age of Reason changed natural law from a religious concept to a secular, rational concept — human rights are based on reason, not God.
7.4 Human Rights in South Africa Before 1994
Were human rights protected before 1994? No — not in any meaningful way.
- - Various limited protections existed (e.g. Magna Carta-style common law rights for white citizens)
- - But there was no entrenched Bill of Rights
- - Parliament could override any such protections
- - The apartheid state systematically violated the rights of the majority
7.5 Ubuntu and Human Rights
Ubuntu is not just an African customary law principle — it has influenced the development of human-rights law in South Africa.
What is ubuntu?
Ubuntu = "I am because we are" — a communal philosophy emphasising human interconnectedness, dignity, compassion and restorative justice.
- - Denotes humaneness and personhood
- - Emphasises collective well-being alongside individual rights
- - Provides an African philosophical foundation for human rights (as distinct from the purely Western Enlightenment tradition)
Ubuntu in the courts
S v Makwanyane 1995 (3) SA 391 (CC)
- - First major Constitutional Court judgment; declared the death penalty unconstitutional
- - Justice Mokgoro: ubuntu as a value underpinning the Constitution
- - Justice Langa: ubuntu emphasises the humanity of both offender and victim
- - The Court held that values — including ubuntu — must guide the interpretation of the Constitution
The Court did NOT simply import Western human-rights theory — it developed a distinctly South African constitutional jurisprudence that integrates ubuntu.
7.6 The 1996 Constitution and the Bill of Rights
Key provisions
| Section | Content |
|---|---|
| s 1 | Founding values: human dignity, equality, freedom, non-racialism, non-sexism, rule of law |
| s 2 | Constitution is the supreme law — any inconsistent law is invalid |
| s 7 | Bill of Rights applies to all law; binds legislature, executive, judiciary and all organs of state |
| s 8 | Horizontal application — Bill of Rights can apply between private parties |
| s 9 | Equality and non-discrimination |
| s 10 | Human dignity |
| s 39 | Interpretation of Bill of Rights — must consider international law; may consider foreign law |
⚠️ Correct citation: Constitution of the Republic of South Africa, 1996 — NOT cited as an Act.
Self-Assessment Questions
- - How did the Age of Reason change the concept of natural law — and how was this relevant to the development of human rights?
- - How did ubuntu change the concept of human rights in Africa?
- - What did the Court have to say about values in S v Makwanyane?
- - Name three reasons the TRC identified for the courts' inability to take a stand against apartheid legislation.
- - Identify the approach to constitutionalism that best ensures a free and democratic society, and explain why.
- - Were human rights protected in South Africa before 1994?