CELEBRATING HUMAN RIGHTS – INTRODUCTION
On 21 March 2017, South Africans celebrated Human Rights Day. Human rights, are the basic rights everyone is entitled to just because they are human. The question now is, do you know your rights?
Human rights are defined in Chapter 2 of the Constitution, the Bill of Rights.
CHAPTER 2 OF THE CONSTITUTION – A CLOSER LOOK AT THE BILL OF RIGHTS
The Bill of Rights consists of sections 7 to 39 and not only does it define specific human rights, but it also deals with the application, interpretation and limitation thereof.
Section 7 reads as follows:
“1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.”
In terms of Section 8, the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. Section 8 further stipulates that the Bill of Rights binds both natural and juristic persons. A juristic person is also entitled to the rights in the Bill of Rights to the extent that it is required, taking into consideration the nature of the right and the nature of the juristic person.
Sections 9 to 35 defines specific human rights:
Equality: Everyone is equal and must be treated equally; Life: Everyone has the right to life; Human dignity: The government must respect all people. People must respect each other; Freedom and security: The right not to be wrongfully imprisoned. The right to a fair trial, not to be tortured and to be free from violence; Slavery, servitude and forced labour: No-one can be forced to work for someone else. Everyone has the right to choose their employer and to receive remuneration; Personal privacy: No person, their home or possessions can be searched. The government cannot open people’s mail or listen to their phone calls; Freedom of religion, belief and opinion: Everyone has the freedom of belief and religion; Freedom of speech and expression: Everyone has the freedom of speech as long as they do not break the law and it doesn’t encourage ‘hate speech’; Assembly of demonstration: We have the freedom to organise and partake in public meetings, demonstrations and to present petitions; Freedom of association: Everyone is free to associate with whomever they like; Political rights: Citizens can start or join a political party and vote in secret if they are over 18 years old; Access to information: People have the right to get information the government or anyone else has, if the information is needed to protect their rights; Citizenship: No-one can be deprived of citizenship; Freedom of movement and residence: Anyone can go or live anywhere. Citizens can leave the country and come back at any time; Freedom of business, occupation and profession: Everyone has the right to do whatever legal work they want; Labour relations: The right to be treated fairly at work, to join a union and to strike; Environment: The right to a healthy environment; Property: Everyone has the right to own and sell property; Housing: The right to have access to adequate housing; Healthcare, food, water and social security: The government must ensure that everyone has access to healthcare, food and water, and financial help (social grants); Education: Everyone has the right to a basic education in the language of their choice; Religion, language and culture: Everyone has the right to enjoy their culture and religion and to use their language; Access to courts: The right to have a legal dispute decided by a fair public hearing; Arrested, detained and accused persons: If you are arrested, you have the right to a lawyer and visits from family members. You may not to be kept in jail without good reason. You must be kept in proper living conditions and may not be forced to speak or to make a confession.
In this issue:
- What exactly is domestic violence?
- Domestic relationship — who can get a protection order?
- Protection orders.
What do you do if you are a victim of domestic abuse and want to obtain a protection order?
Firstly, it is important to note that any Court, within the area in which the complainant or respondent resides, or works, or where the domestic violence occurred, has jurisdiction to grant a protection order. A protection order is enforceable throughout the Republic.
In terms of Section 4, a complainant may apply for an interim protection order, which application may be brought outside ordinary hours or on a day which is not an ordinary court day, if the court is satisfied that the complainant may suffer undue hardship if the application is not dealt with immediately, be completing and submitting a Form 2. The aforementioned Form 2, can be obtained from the clerk of the court and the application must be made by way of an affidavit which must states the following information: the facts on which the application is based; the nature and terms of the protection order sought and the name of the police station where the complainant is likely to report any breach of the protection order. Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.
In terms of Section 4(3) an application for a protection order may also be brought on behalf of the complainant by any other person who has a material interest in the wellbeing of the complainant .
The Form 2 application will then be submitted to the Court for consideration. If the Court is satisfied that there is prima facie proof that the respondent is committing or has committed an act of domestic violence and that undue hardship may be suffered by the complainant as a result of such domestic violence if a protection order is not issued, the court must issue an interim protection order against the respondent.
The interim protection order will contain a return date, calling on the respondent to attend at court and to show cause why a final protection order should not be granted.
It is important to note that an interim protection order will only be of force once it has been served on the respondent by way of the police or the sheriff.
If the respondent does not appear in court on the return date, and there has been proper service of the interim protection order and there is prima facie proof of the domestic violence, the court will issue the final protection order. If the respondent appears in court on the return date, the court will hear evidence from both the complainant and the respondent and take witness’ evidence into account, if applicable, before making a decision whether or not to make the interim protection order a final order.
In terms of Section 7 of the Act, the court may grant a protection order, prohibiting the respondent from: committing any act of domestic violence; enlisting the help of another to commit any such act; entering a residence shared by the complainant and respondent or a specific part of the residence; entering the complainant’s residence or place of employment; or committing any other act as specified in the protection order.