Until recently, effective protection of human rights through the courts was virtually impossible in South Africa. The reason was that, under the guise of parliamentary sovereignty, there was no constitutional machinery to check dictatorial legislation passed by Parliament, which itself was seemingly above the law. Suddenly, from the ashes of apartheid emerged the floodlight of a democratic order with all the attractive ingredients that clothe human beings with dignity. One can therefore understand the euphoria that welcomed the final Constitution which, among other unique features, made ample provision for human rights - to wit, the Bill of Rights.
Unfortunately, in this case, very little evidence was placed before us by government of the precise purpose and effect of the provisions' per O' Regan J (dissenting) in S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC): 1997 (10) BCLR 1348 (CC) at para 130. Yet, there are facts of common knowledge to which we cannot blind ourselves' per Sachs J (concurring) in Lawrence (above) at para 175. The final Constitution has been in effect for more than a year. References to this Constitution dominate current law reports. However, memories of the interim Constitution remain fresh.
In the case of Bell v S (in which the accused appealed against a magistrate's order committing him to prison to await the final decision of the Minister of Justice with regard to his extradition to Australia) Mr Bell was accused of having committed many offences that those of us with 'conventional' sexual preferences would decry as turpitude of the worst kind. But, the lewdness of his alleged conduct notwithstanding, Mr Bell still has rights - some of which are enshrined in the Bill of Rights contained in the Constitution. It is my submission that Mr Bell got a raw deal from our courts with regard to the protection and assertion of his constitutional and common law rights.
A comparative synopsis of the Basic Conditions of Employment Acts of 1983 and 1997 On 26 November 1997 the President assented to the Basic Conditions of Employment Act 75 of 1997 (GG 18491). The objectives of the Act are to give effect to the right to fair labour practices referred to in s 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment and thereby to comply with the obligations of the Republic as member state of the International Labour Organisation.