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Protected by our fine Constitution

Photo: African News Agency (ANA)

Photo: African News Agency (ANA)

Published Apr 30, 2019


It was a momentous weekend for South Africa - the 25th anniversary of our democratic elections.

Sometimes, with all the division and polarisation you see in our public discourse, it does not feel as if we have come a long way since then. But we have, especially in terms of our law.

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We have a fantastic Constitution which guarantees so many rights for us as South African citizens.

We still have many problems. But I often think we don’t realise how lucky we are, in terms of how much our laws protect us and our rights.

In the US, often regarded as the bastion of freedom, they still have the death penalty in many states. There is no legally protected paternity leave and abortion is still a legal battlefield. Same sex marriages are only allowed in certain US states, while adoption rights to same sex couples is still a bone of contention in several states.

And our gun laws make it extremely difficult to willy nilly obtain a firearm. While we do have crime in this country, the authorities view the possession of an unlicensed firearm in a very serious light and, depending on the circumstances, can see an accused being sentenced to between five and 10 years imprisonment.

The wise justices sitting at the impressive Constitutional Court building, up on Constitutional Hill, have changed our lives in some way.

In paving the way for things to come, the Constitutional Court - in its first political ruling - on June 6, 1995, abolished the death penalty. The court ruled that this form of punishment was inconsistent with the promise of human rights guaranteed to us all through the Constitution.

Thus, all death row prisoners at the time had their fate commuted into life sentences - which is, at present, 25 years before parole is considered.

In April, 1999, the Constitutional Court again came to the aid of prisoners. This time it ruled that prisoners may vote, as it was unconstitutional to deny them this right. This was after Cabinet decided prisoners could not vote, as the electoral budget was not big enough to cover the costs in registering them.

This judgment has paved the way for thousands of prisoners across our country to also cast their mark in a week’s time.

Another case which comes to mind is last year’s ruling that the personal use of cannabis is no longer a crime.

According to these bastions of our law, the criminalisation of the personal use of cannabis at home was against the constitutional right to privacy.

The poor and homeless are also on the mind of the masters sitting at Constitutional Hill. In June, 2017, they protected the rights of millions of homeless in South Africa, with their verdict that “evictions that lead to homelessness are unlawful”.

The Socio-Economic Rights Institute of South Africa (SERI), at the time, hailed this decision as “a momentous decision for millions of poor people across South Africa, who live with insecure tenure and inadequate housing”.

This judgment ensured that no court could evict someone until a judge was sure that no one will be left on the streets.

All eyes are now on the Western Cape High Court to see whether our legal system will come to the aid of transgender people. Prisoner Jade September, with the help of Lawyers for Human Rights, is awaiting judgment in her case in which she wants to be treated as a woman in prison, although she was born as a man.

But ultimately, whatever the high court ruled in this regard, her case is destined for the Constitutional Court to have the last say.

We are very, very lucky to have all this.

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