CONCLUSION

The conclusion section of every study unit contains a brief summary of the essence of the study
unit. It also briefly mentions what you can expect in the next study unit.
This concludes our exposition of the outline of a study unit which is designed to scaffold your
learning by providing a framework of supported guidance.
We will now proceed to the content of the study guide.
4 INTRODUCTION TO FUNDAMENTAL RIGHTS
4.1 The idea of human rights
The term “human rights” has become one of the buzzwords of our age and it is used – and abused
– in a variety of contexts. Whenever something controversial is done, someone is bound to
complain about an invasion of his or her human rights (which may also be called fundamental or
constitutional rights).
4.2 What are human rights?
But what are human rights, and why has this concept become so central to the way we think
about law, justice and politics? According to the idea of fundamental rights, each human being
has certain inalienable rights which may not be encroached on by the state or its institutions,
except to the extent that such encroachment is authorised by law. A number of implications flow
from this statement:
● A human right accrues to someone simply because he or she is human; it is not something he
or she deserves or works for.
● A right is not the same as a privilege; it is more like an entitlement, which is capable of being
enforced.
● With very few exceptions, rights are normally not absolute and have to be weighed against
other rights and the public interest.
● The authority to encroach on rights is in itself subject to limitations; and if such limitations are
exceeded, the individual is entitled to demand that the state reinstate these rights.
4.3 Human rights are universal
Nowadays, human rights are regarded as universal: the constitutions and laws of virtually every
state in the world contain measures for the protection of human rights, most notably in the form
of a bill of rights embedded in a country's municipal (or domestic) constitution. Among these
rights are the following:
INTRODUCTION
● The right to life.
● The right to equality before the law.
● The right to a fair trial.
● A whole range of other rights can lay claim to almost universal acceptance (although practical
adherence to these rights is a different matter altogether).
At the same time, the interpretation and application of human rights norms will inevitably vary
from one generation to the next and from one culture to another. The international dimension
will be discussed next.
4.4 International dimension
In addition to their universal character, the international dimension of human rights has also been
stressed. The protection of human rights is no longer seen as something falling squarely within
the domestic jurisdiction of individual states, but has become a matter of “'international concern'
and a proper subject for diplomacy, international institutions, and international law” (Henkin: 17).
This development is reflected in the evolution of a vast body of international human rights norms,
most notably those contained in the following:
● United Nations Universal Declaration of Human Rights
● the International Covenant on Civil and Political Rights
● the International Covenant on Economic, Social and Cultural Rights (these three documents
are collectively known as the “international bill of rights”)
Regional blocks have also adopted their human rights charters, for instance:
● European Community's European Convention on Human Rights
● Organisation of American States' Declaration of the Rights and Duties of Man
● Organisation of African Unity's Charter on Human and People's Rights (better known as the
Banjul Charter)
A bill of rights, then, is a document which sets out the rights of the individual vis-à-vis the state
(and, sometimes, also vis-à-vis other individuals and corporations) and which may also provide for
the enforcement of such rights. A bill of rights may have either international or domestic
application; in the latter case, it is most often part of the constitution of a country.
The focus of this course is the South African Bill of Rights, which is contained in chapter 2 of the
Constitution of the Republic of South Africa, 1996. Study unit one will lay the foundation in that it
examines the structure of the Bill of rights.
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INTRODUCTION