Die inhoud, betekenis en enkele implikasies van die Handves van Regte in die 1996‐grondwet

Abstract

ABSTRACT This article reviews the contents, meaning and some of the implications of chapter 2, the Bill of Rights, in South Africa's final Constitution. The most unmistakable hallmark of the substitution of constitutional sovereignty for parliamentary sovereignty (heralded by the transitional Constitution of 1993) has been the introduction of a justiciable Bill of Rights. The author shows how the concept and practice of constitutional sovereignty are invoked to entrench rights via the Bill of Rights in the 1996 Constitution which came into effect on 4 February 1997. He first explains how a justiciable Bill of Rights fits into the scheme of Constitutionalism and then proceeds to explore the values encapsulated in (and the language and style of) the Constitution. Attempts at reconciling ‘libertarian’ and ‘egalitarian'l'libera‐tionist’ sentiments through the introduction of human dignity as a foundational value, are assessed. The possible effects of the Preamble and other value‐statements are briefly considered and considerations prompting the use of ‘plain language’ in couching the text are explained. The various rights entrenched in chapter 2 are then surveyed and the scope of each briefly identified. Provisions for the interpretation, limitation and suspension of rights are also looked at and the author explains how and when someone can have recourse to court in order to uphold his or her rights when infringed or threatened by legislation or administrative action. The article is concluded with a brief overview of mechanisms for the enforcement and realisation of rights.