Law enforcement in South Africa

Constitution of the Republic of South Africa, 1996

Government of South Africa (gov.za) · Legislation · 1996 · link verified 2026-07-27

The Constitution of the Republic of South Africa, 1996 (in force 4 February 1997), fetched from the official gov.za chapters and schedules and confirmed verbatim in two independent passes. Supports s 1(c) and s 2 (constitutional supremacy — "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid"); s 165 (judicial authority vested in independent courts); s 166 (the courts: the Constitutional Court, the Supreme Court of Appeal, the High Court and the Magistrates' Courts); s 167(3) (the Constitutional Court is "the highest court of the Republic", the apex for all matters since the Seventeenth Amendment); s 178 (the Judicial Service Commission); s 179 (a "single national prosecuting authority", headed by the National Director appointed by the President, exercising its functions without fear, favour or prejudice, with the Justice Minister exercising "final responsibility"); s 181 (the Chapter 9 institutions — the Public Protector, the Human Rights Commission and others); s 205–207 (a single national police service, the Minister determining national policing policy, the National Commissioner controlling the service, provinces limited to oversight); and Schedules 4 and 5 (which contain no provincial competence over courts, prosecution, prisons or criminal law, only police "to the extent that Chapter 11 confers"). Establishes constitutional supremacy and that all four justice functions are national. WAVE 12 ADDITION, read from the clean digital text published by the Department of Justice at justice.gov.za and corroborated against the gov.za chapter pages: s 9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law; s 33(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair, s 33(2) written reasons where rights have been adversely affected, s 33(3) national legislation providing for review by a court or independent and impartial tribunal; s 34 Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum; s 35(2)(b) the right of a detained person to choose and consult a legal practitioner, s 35(2)(c) the right to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, s 35(2)(d) to challenge the lawfulness of the detention before a court, and s 35(2)(e) to conditions of detention consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment. ACCESS NOTE: the scanned gazette PDF at gov.za/sites/default/files/images/a108-96.pdf is an OCR with visible corruption and was rejected as a source; nothing is quoted from it. WAVE 14 ADDITION, read from the same Department of Justice chapter text: s 35(3)(f) the right of every accused person to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; s 35(3)(g) to have a legal practitioner assigned by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; s 35(3)(k) “to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language”; and s 35(4) that whenever the section requires information to be given to a person, that information must be given in a language that the person understands. WAVE 19 ADDITION, read from the same Department of Justice chapter text: s 35(5) in full — "Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice." As with the Kenyan provision, exclusion is conditional on the effect of admission rather than automatic on the violation. Also read directly from the same chapter text, the whole of s 35(2)(d) and its chapeau: "Everyone who is detained, including every sentenced prisoner, has the right u2014 u2026 (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released". Three features of that provision are cited on this platform and each is in the text itself: that the right extends to sentenced prisoners, that the challenge is made in person before a court, and that release is the stated remedy. The provision states no procedure for bringing such a challenge and no time limit, and this record supports no claim about either. WAVE 20 ADDITION. Read from the same Department of Justice chapter text. Section 37 is the most fully specified emergency clause in this wave, and its detail is the finding. Supports Constitution of the Republic of South Africa, 1996, s.37(1): “37. (1) A state of emergency may be declared only in terms of an Act of Parliament, and only when— (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order.”. Supports Constitution of the Republic of South Africa, 1996, s.37(2)(b): “The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.”. Supports Constitution of the Republic of South Africa, 1996, s.37(3): “(3) Any competent court may decide on the validity of— (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; or (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.”. Supports Constitution of the Republic of South Africa, 1996, s.37(4): “(4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that— (a) the derogation is strictly required by the emergency; and (b) the legislation— (i) is consistent with the Republic’s obligations under international law applicable to states of emergency; (ii) conforms to subsection (5); and (iii) is published in the national Government Gazette as soon as reasonably possible after being enacted.”. Supports Constitution of the Republic of South Africa, 1996, s.37(5) and the Table of Non-Derogable Rights: “(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise— (a) indemnifying the state, or any person, in respect of any unlawful act; (b) any derogation from this section; or (c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. Table of Non-Derogable Rights [1 Section number | 2 Section title | 3 Extent to which the right is protected] 9 | Equality | With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language. 10 | Human Dignity | Entirely 11 | Life | Entirely 12 | Freedom and Security of the person | With respect to subsections (1)(d) and (e) and (2)(c). 13 | Slavery, servitude and forced labour | With respect to slavery and servitude 28 | Children | With respect to: – subsection (1)(d) and (e); – the rights in subparagraphs (i) and (ii) of subsection (1)(g); and – subsection 1(i) in respect of children of 15 years and younger. 35 | Arrested, detained and accused persons | With respect to: – subsections (1)(a), (b) and (c) and (2)(d); – the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) – subsection (4); and – subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.”. Supports Constitution of the Republic of South Africa, 1996, s.37(6)-(8): “(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed: (a) An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained. (b) A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained. (c) The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner. (d) The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative. (e) A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order. ... (7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person. (8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.”. Supports Constitution of the Republic of South Africa, 1996, s.36: “36. (1) 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 relevant factors, including— (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. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”. Supports Constitution of the Republic of South Africa, 1996, s.201; cf. ss.198(d), 199(6): “201. (1) A member of the Cabinet must be responsible for defence. (2) Only the President, as head of the national executive, may authorise the employment of the defence force— (a) in co-operation with the police service; (b) in defence of the Republic; or (c) in fulfilment of an international obligation. (3) When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of— (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed. (4) If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.”. Cited for prospective-only effect, the twenty-one-day limit and the escalating extension majorities, validity review by any competent court, the strictly-required test, the Table of Non-Derogable Rights, the absolute bar on indemnifying unlawful acts, and the conditions on detention without trial. It records no state of emergency ever declared under this Constitution and supports no claim about any other country.WAVE 21 ADDITION. Chapter 2 (Bill of Rights) read from the South African Government's own published text at gov.za. Supports s. 12(1)-(2) (freedom and security of the person, including not to be deprived of freedom arbitrarily or without just cause, not to be detained without trial, freedom from all forms of violence from either public or private sources, and not to be tortured or treated or punished in a cruel, inhuman or degrading way; and bodily and psychological integrity, including security in and control over one's body and freedom from medical or scientific experiments without informed consent). Supports s. 14 verbatim: “Everyone has the right to privacy, which includes the right not to have — (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.” Note what this provision does NOT contain, which the page relying on it states: no warrant requirement and no authorisation rule of any kind. Supports s. 35(1) (rights of arrested persons, including (a) to remain silent; (b) to be informed promptly of the right to remain silent AND of the consequences of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence; (d) to be brought before a court as soon as reasonably possible but not later than 48 hours after arrest, or the end of the first court day after the 48 hours expire outside ordinary court hours or on a non-court day; (e) and (f)). Supports s. 35(2) (rights of detained persons, including prompt information of the reason, choice of and consultation with a legal practitioner and prompt information of that right, state-assigned counsel where substantial injustice would otherwise result, and the right to challenge the lawfulness of the detention in person before a court and be released if it is unlawful). Supports s. 35(3) (fair-trial rights, including (a) to be informed of the charge with sufficient detail to answer it; (b) adequate time and facilities to prepare a defence; (c) a public trial before an ordinary court; (h) to be presumed innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence; (k) to be tried in a language the accused understands or to have the proceedings interpreted). Supports s. 36(1)-(2), the general limitation clause: 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 relevant factors, including — (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”, and that except as provided in s. 36(1) or elsewhere in the Constitution, no law may limit any entrenched right. Supports the RIGHTS-HOLDER observation that ss. 12, 14 and 35 are worded “Everyone” while political rights under s. 19 are for “every citizen”. Constitutional text only: no Constitutional Court decision, no statute, and nothing about any other country.