South Africa’s human rights framework was not handed down from above. It was forged out of a long and often painful struggle against apartheid, a system that for decades denied the majority of South Africans basic freedoms on the basis of race. Understanding the history of human rights in South Africa means understanding how a divided country chose, through negotiation and law, to rebuild itself on the foundation of dignity, equality, and freedom.
The turning point came in the early 1990s. As apartheid was dismantled, South Africans drafted an Interim Constitution, held their first democratic elections in 1994, and two years later adopted the Constitution of the Republic of South Africa, 1996. That Constitution, and in particular its Bill of Rights, now shapes almost every part of South African law.
This article traces that history: the injustices of apartheid, the move from the 1993 Interim Constitution to the 1996 final Constitution, the role of the Constitutional Court, the work of the South African Human Rights Commission, and how human rights continue to underpin the law today.
Apartheid and the Denial of Basic Rights
From 1948 onwards, the National Party government formalised racial segregation into a system called apartheid. A web of statutes, including the Population Registration Act, the Group Areas Act, the Pass Laws, and the Bantu Education Act, controlled where people could live, work, study, and travel. The majority of South Africans were stripped of their citizenship, of their right to vote, and of meaningful protection from the courts.
There was no enforceable Bill of Rights. Parliament was sovereign, which meant that unjust laws could not be struck down simply because they violated basic freedoms. Security legislation gave the state broad powers of detention without trial, and the courts had limited room to intervene. For the legal profession, the apartheid era was a lesson in what happens when the law itself is used to entrench injustice.
Resistance to apartheid came from many quarters, including communities, trade unions, churches, and political organisations. Inside the country, lawyers and activists used the courts where they could. Internationally, the apartheid state was isolated through sanctions and sporting boycotts. By the late 1980s, the cost of maintaining the system had become unsustainable, and the path to negotiation opened.
The 1993 Interim Constitution
The Constitution of the Republic of South Africa Act 200 of 1993, known as the Interim Constitution, came into force on 27 April 1994, the day of South Africa’s first democratic elections. It was the product of multi-party negotiations at the World Trade Centre in Kempton Park, and it did two things that apartheid law had refused to do.
First, it made Parliament subject to a Constitution, ending the doctrine of parliamentary sovereignty. Second, it introduced an enforceable Bill of Rights. For the first time, every person in South Africa had constitutional protection of rights such as equality, dignity, life, and freedom from discrimination.
The Interim Constitution also established the Constitutional Court and set the rules for the final Constitution, which would be drafted by an elected Constitutional Assembly. It was always intended as a bridge, but it carried the country from minority rule to constitutional democracy without civil war.
The 1996 Constitution and the Bill of Rights
The Constitution of the Republic of South Africa, 1996 was adopted by the Constitutional Assembly on 8 May 1996 and signed into law by President Nelson Mandela on 10 December 1996. It came into effect on 4 February 1997 and is now the supreme law of the land. Any law or conduct inconsistent with it is invalid.
Chapter 2 of the Constitution is the Bill of Rights. Section 7 describes it as “a cornerstone of democracy in South Africa” that “affirms the democratic values of human dignity, equality and freedom.” The rights it protects include:
- Equality (section 9), including a prohibition on unfair discrimination and provision for genuine affirmative action.
- Human dignity (section 10), which is both a right in itself and a value that informs every other right.
- Life (section 11), which led to the abolition of the death penalty.
- Freedom and security of the person (section 12), including freedom from violence and from detention without trial.
- Privacy (section 14), protecting people and their communications from unlawful interference.
- Freedom of religion, belief, and opinion (section 15), together with freedom of expression (section 16) and freedom of association (section 18).
- Political rights (section 19), including the right to vote in free and fair elections.
- Access to information (section 32) and access to courts (section 34).
- Socio-economic rights, including access to housing, healthcare, food, water, and social security (section 27), children’s rights (section 28), education (section 29), and fair labour practices (section 23).
These rights are not absolute. Section 36 allows rights to be limited only by 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. This is the standard South African courts apply whenever the state seeks to restrict a right.
The Constitutional Court
The Constitutional Court is the highest court in South Africa on constitutional matters. It was established under the Interim Constitution and began its work in 1995. The Court sits in Johannesburg, and its decisions bind every other court and all organs of state.
From the outset, the Court has shaped the interpretation of rights in South Africa. In S v Makwanyane (1995), its first major judgment, the Court held that the death penalty was inconsistent with the rights to life, dignity, and freedom from cruel, inhuman, or degrading treatment, and struck it down. In Government of the Republic of South Africa v Grootboom (2000), the Court dealt with the right of access to housing and confirmed that the state has a positive duty to take reasonable legislative and other measures to realise socio-economic rights.
The Court has also placed limits on the exercise of rights where justified. In Islamic Unity Convention v Independent Broadcasting Authority (2002), the Court confirmed that freedom of expression does not extend to advocacy of hatred based on race, ethnicity, gender, or religion that constitutes incitement to cause harm. The case law shows how the Constitution balances freedom against dignity and equality.
The South African Human Rights Commission
Section 184 of the Constitution establishes the South African Human Rights Commission (SAHRC). The Commission is a Chapter 9 institution, an independent body answerable to the Constitution and to Parliament rather than to a government department. Its role is to promote respect for human rights, to protect those rights, and to monitor and assess their observance in South Africa.
The SAHRC can investigate complaints of human rights violations, can require people and institutions to make representations to it, and can take cases to court on its own or on behalf of complainants. It is also required to report regularly to Parliament. Together with other Chapter 9 institutions, such as the Commission for Gender Equality and the Public Protector, it forms part of the constitutional architecture that supports democracy outside party politics.
How Human Rights Underpin South African Law Today
More than two decades after the 1996 Constitution came into force, human rights are no longer an external standard against which the law is judged. They are built into the law itself. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 gives effect to section 9. The Protection of Personal Information Act 4 of 2013 gives effect to the right to privacy. The National Health Act, the Basic Conditions of Employment Act, and the South African Schools Act each draw on rights set out in the Bill of Rights.
For ordinary South Africans, the practical effect is this. If a government department, an employer, a landlord, or a private company infringes your rights, you can rely directly on the Constitution. You can approach the SAHRC, the Equality Courts, the Public Protector, or, where appropriate, the High Court or Constitutional Court. Rights are enforceable against the state and, in many cases, against private parties as well.
That said, rights are enforced through procedure. There are notice periods for claims against organs of state, limitation periods for civil claims, and the general requirement to approach the correct forum. An attorney’s role is often to identify which right is engaged and which institution can give effective relief, whether that is a complaint to the SAHRC, an application to the High Court, or a referral to an Equality Court.
Frequently Asked Questions
When did South Africa adopt its current Constitution?
South Africa adopted the Constitution of the Republic of South Africa, 1996 on 8 May 1996. It was signed into law by President Nelson Mandela on 10 December 1996 and came into effect on 4 February 1997.
What is the Bill of Rights in South Africa?
The Bill of Rights is Chapter 2 of the Constitution of the Republic of South Africa, 1996. It protects rights such as equality, human dignity, life, freedom and security of the person, privacy, freedom of expression and religion, political rights, and access to housing, healthcare, food, water, social security, and education.
What was the 1993 Interim Constitution?
The Constitution of the Republic of South Africa Act 200 of 1993, known as the Interim Constitution, came into force on 27 April 1994. It ended parliamentary sovereignty, introduced an enforceable Bill of Rights, established the Constitutional Court, and set the framework for the drafting of the 1996 final Constitution.
What does the South African Human Rights Commission do?
The South African Human Rights Commission is an independent body established under section 184 of the Constitution. It promotes, protects, and monitors human rights in South Africa, investigates complaints, and can take cases to court. It reports regularly to Parliament.
Can human rights in South Africa be limited?
Yes. Under section 36 of the Constitution, rights may be limited only by 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.
Get help with a legal matter. If you need guidance on a rights-related issue, Otrebski Attorneys in Sandton advises on constitutional and general legal questions with a practical, principled approach. Our women-led, Level 4 B-BBEE practice brings the same care to every matter, large or small.
Disclaimer. This article is general information about the history of human rights in South Africa, not legal advice. Constitutional and human rights questions depend on their own facts and on current legislation and case law. For advice on a specific matter, consult a qualified attorney or the South African Human Rights Commission.