EDCC 315 _3_ E 2021

EDCC 315(3)
Constitutional rights and responsibilities
Study Unit 2
Textbook: Chapter 3
Study Unit 2
Learning outcomes
 be familiar with those fundamental rights in the Bill of Rights that are applicable to
the education situation, especially the rights of learners and educators;
 be able to interpret and correctly apply the relevant rights of persons in the
Constitution of South Africa to contemporary issues in South African schools;
 understand that rights are also associated with responsibilities, and that rights
should not be over-emphasised
An introduction to human rights
“The rights of every man are diminished

when the rights of one man are
threatened.”
John F. Kennedy
No-one doubts the need for human rights or the fact that
over the last few decades the awareness of human right
issues have increased, but ask someone to define human
rights and such a person finds it quite challenging.
An introduction to human rights:
An international perspective
Heyns and Kilander writes: Purpose of International law:
There is no theme more important than human rights The protection of individual human
in the strive for peace, security, stability and rights against the State
development.
Per definition, human rights entail and touch each

aspect of our lives and must therefore be
guaranteed, protected and respected at all times.
Respect for human rights forms the foundation

upon which humans' political, economic, social and
judicial structures rely.
Humanitarian approach:
It is a prerequisite for the prevention of conflict and
Protect the rights of humans
the promotion of sustainable peace in the world.
Section 8 of the Constitution:
Application
Unequal, power
State
relationship
Vertical
People
Application of the
Bill of Rights
Between
Horizontal individuals Equal relationship
mutually
Section 8 of the Constitution:
Application
Subsection 8(2):
Fundamental rights bind: Are not always

protected
 The State and citizens
 Natural as well as juristic persons
Public school is a juristic

person Juristic persons do not
SGB = executive organ have access to ALL
= Fulfils legal actions on fundamental rights…
behalf of the school Ex. Life, bodily integrity…
Embedded in the human rights doctrine:
1) The idea that there exists a “higher law,” elevated above the positive law
2) The unassailability/reliability of the individual's human dignity, freedom and equality with
other people
3) The idea that respect for human rights is a prerequisite for justice
4) The view that the State and government as institutions of authority are the greatest
potential threats to human rights
h y a re
W io n s
tit u t
cons essful: 1. Engraved in hearts and minds of humans
cc
u n su 2. Active society who live values
3. Politicians who respect it
Require:
4. Well informed voters
5. Independent judiciary
6. Citizens who realise the responsibilities that go along with rights (education)
The responsibility of educators:
It is the responsibility of educators to

educate learners about:
(1) the values of the (4) how to fulfil their
Republic of South responsibilities in
Africa terms of promoting the
rights of others
(2) to have respect
for rights of others
(3) how to claim

their own rights
The relationship between rights and
responsibilities
A fundamental right is an Every individual has certain

entitlement that all human inborn and inalienable
beings own claims upon which others
may not infringe
Not a positive law principle
 It is a positive legal ideal

Claim of right ≠ prevent
other persons from
exercising their rights
Borne out of the natural

strive for freedom,
equality and human
dignity
Most rights have corresponding duties
Fundamental rights
Sec 9: Equality Sec 18: Freedom of association
Sec 10: Human dignity Sec 23: Fair labour relations
Sec 12: Freedom and security of the Sec 28: Children

person
Sec 14: Privacy Sec 29: Education
Sec 15: Freedom of religion, belief

and opinion Sec 6,30, 31: Language and culture
Sec 16: Freedom of expression Sec 33: Just administrative action

3
Fundamental rights:
Three important provision
Sec 7(1): The Bill of Rights is a Sec 7(3): The rights in

Section 7: Rights
cornerstone of democracy in the Bill of rights are not
South Africa. It enshrines the absolute – they are
rights of all people in our country subject to the limitations
Section 8: Application and affirms the democratic values contained in section 36.
of human dignity, equality and
freedom. Fundamental rights can
indeed be limited!
Section 36: Limitation
clause
Sec 7(2): Obliges the State and
the organs of state (schools) to These values enshrined in
section 7 constitute the
Previously discussed protect, promote and fulfil these foundation of all other rights in
rights the Bill of Rights.
3
Section 36: Limitation clause
Fundamental rights are NOT absolute
They can be limited, except for the right to life and human dignity
Limiting a right - restrictions placed on the extent to which such a

right can be exercised In the event that rights may appear
to be in conflict with each other
Purpose of limiting rights: (e.g. the right to freedom of
expression of one person and the
Balance conflicting rights / interests right to human dignity of another), a
Prevent abuse of rights fair balance must be struck
between the interests that are
protected by each of these rights
3
Section 36 requirements
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent
that the limitation is:
 reasonable and justifiable in an open and democratic society

 based on human dignity, equality and freedom
 taking into account all the relevant factors:
a) the nature of the right;
b) the importance of the purpose of the limitation;
c) the nature and extent of the limitation;
d) the relation between the limitation and its purpose; and
e) less restrictive means to achieve the purpose.
NO, as long as all requirements are met

 Lawful and constitutional limitation
When a fundamental right is limited
 Constitute an infringement?
Exceptionally strong reasons/justifications
Compellingly important 3
S v Makwanyane
Purpose?
Death penalty Right to life  Retribution,
prevention,
discouragement
Extent: the right to life Purpose: safety and

is obliterated completely Section 36 security of society
a) the nature of the right;

b) the importance of the purpose of the limitation;
c) the nature and extent of the limitation;
d) the relation between the limitation and its purpose; and
e) less restrictive means to achieve the purpose 3
E-fundi

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EDCC 315(3)

Constitutional rights and responsibilities

“The rights of every man are diminished

Heyns and Kilander writes: Purpose of International law:

Per definition, human rights entail and touch each

Respect for human rights forms the foundation

Fundamental rights bind: Are not always

Public school is a juristic

It is the responsibility of educators to

(3) how to claim

A fundamental right is an Every individual has certain

 It is a positive legal ideal

Borne out of the natural

Sec 9: Equality Sec 18: Freedom of association

Sec 10: Human dignity Sec 23: Fair labour relations

Sec 12: Freedom and security of the Sec 28: Children

Sec 14: Privacy Sec 29: Education

Sec 15: Freedom of religion, belief

Sec 16: Freedom of expression Sec 33: Just administrative action

Sec 7(1): The Bill of Rights is a Sec 7(3): The rights in

Fundamental rights are NOT absolute

Limiting a right - restrictions placed on the extent to which such a

 reasonable and justifiable in an open and democratic society

NO, as long as all requirements are met

Extent: the right to life Purpose: safety and

a) the nature of the right;

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