General Questions

Apart from the Constitution, there are also various legislation put into place that can protect human rights. For example, the Protection of Personal Information Act 4 of 2013 will protect the right to privacy when it comes into operation, by restricting how a person’s private information may be accessed and used.

Considering that South Africa is split into provinces and municipalities, the elections are split into two groups. In 2024, the election that will take place will be to elect the National and Provincial government. A separate election is held to elect the municipal governments. The next municipal elections are set to take place in 2026.

In light of the constitutional right to a free election, the Electoral Act provides that no-one may force or unlawfully persuade another person to register as a voter, to go and vote or not to vote, to cast a vote for a specific party and so on. If this is done, a person can be found guilty of a criminal offence and can be imprisoned for up to 10 years. 

An interested person can bring an application to a court on behalf of a person whose human rights are being infringed. Section 38 of the Constitution allows any person to act on behalf of someone else who cannot do so themselves. Further, the interested person could even act on behalf of a group or community of persons who are affected.

• Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.
• For example, tax law that stipulates the various tax brackets apply depending on a person's income. There is no “one size fits all” approach providing that everyone must pay the same amount of tax regardless of their income. This differentiation can be seen as fair.

It is important to note that you need to vote at the voting station in the district where you are registered to vote. This is extra important in municipal elections. In respect of national and provincial elections, you still need to vote in your registered district. However, if you happen to be out of that district, you will only be able to vote for national government and not the provincial government. If you want to vote outside of your registered district for both, you will be asked to complete a VEC 4 form at the voting station.

• One might think that as soon as a court declares something to be against the Constitution and invalid, that it immediately will come into effect. This is not always the case and the judgment must be carefully read to get clarity.
• The High Court and Supreme Court of Appeal can declare something to be against the Constitution. However, the Constitutional Court must first confirm such a declaration before it comes into effect.
• This means that although the High Court can declare something as unconstitutional today, it will only come into effect if the Constitutional Court confirms it.
• Even if the Constitutional Court confirms the invalidity or makes an order itself, there can still be limitations to when it will come into effect. For example, the judgment can be suspended for a certain period to allow legislation to be amended accordingly.

• The right to own property is protected by section 25 of the Constitution that provides that no one may be deprived of property except in terms of a law of general application. It further provides that property can be expropriated subject to compensation if it is in the public interest to do so.
• Apart from this right to own property, a person also has a right to the use and enjoyment of the property.
• These rights are sometimes subject to limitations set out in legislation and common law. For example, if you live on a farm and your neighbour needs to pass through your land to get to their land, the use of your property can be limited by registering a “right of way” on the title deed. This right of way allows your neighbour to use part of your property to access their own property.
• Another example would be in townhouse complexes or apartment buildings. Body corporate rules limit these rights by not allowing pets, or not allowing noise after a certain time of day and so on.

• The right to electricity is not in itself a human right contained in the Constitution. However, a lack of access to electricity can infringe on a person’s other human rights. For example, loadshedding may infringe on a person’s rights to trade, access to information, health care and social security.
• There are numerous arguments on this topic, however, municipalities must provide the public with basic municipal services within its available resources and in a sustainable manner. In Joseph v City of Johannesburg 2010 4 SA 55 (CC), the Constitutional Court confirmed that South Africans are entitled to electricity as a basic municipal right.
• On the flip side of the coin, legislation provides that the interests and needs of present and future electricity customers are safeguarded and met (in consideration of the efficiency and long-term sustainability of the electricity supply industry).
• In light of the above, there is a fine balance that must be maintained between providing the public with electricity as a basic municipal right (together with the protection of human rights) and the long-term sustainability of the electricity supply industry.
• Even though it might be possible that loadshedding can impact on a person’s human rights, it is also important to remember that the Constitution allows for human rights to be infringed to a certain extend. Section 36 of the Constitution provides for the limitation of human rights if that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation of human rights should also be subject to any less restrictive manners that are available (for example, that the electricity outages are limited to certain time periods and as per a schedule).
• Although there are arguments on either side in respect of whether or not loadshedding infringes on a person’s human rights, it must still be formally tested under the law.

• The Constitution grants this right to “everyone”, however, this is not an absolute right and is governed by legislation, such as the Social Assistance Act 13 of 2004.
• This means that the legislation will have clear guidelines as to when a person will qualify for social assistance. As a general rule, those who are in need are more likely to claim and benefit from the social security protection provided in the Constitution.
• It should also be taken into account that the Constitution only provides access to social security and not a right to automatically receive social security.

• There are various ways to submit an income tax return, and it depends on what would be the best under each person's circumstances.
• The following platforms are available:
  • eFiling: this is where you can submit your tax return electronically without having to visit a SARS branch. eFiling can be done at www.sarsefiling.co.za
  • The SARS MobiApp allows for various tax-related services, such as filing a tax return, to be done through the use of the mobile app.
  • You can also submit your tax return at a SARS branch. Remember to make an appointment for a SARS agent to assist you with the process and to take along all supporting documentation.
• When making use of any digital platform, always be vigilant of potential hacking, scamming, and other cybersecurity risks. Ensure that you use the correct websites, as a lot of personal details will have to be captured.

You can download the LegalWise App from the App Store or Google Play Store. Register and access the app from either one of the app stores, or visit a Branch where you can be provided with access. You may contact LegalWise telephonically or via e-mail, WhatsApp, or online and request that a copy of the Schedule of Insurance be sent to you by post.

• Each province or municipality might have its own legislation and/or by-laws that regulate drinking in public.
• For example, the Gauteng Liquor Act 2 of 2003 states that no person may consume alcohol in or near any public place, this includes a vehicle driven on a public road or parked in a public area. A fine of R300 will be issued if a person is caught.
• Be careful and think twice when you want to consume alcohol in a public space that is not licensed accordingly, like a beach or a park, as you can be guilty of an offence and be fined.

• In the event a couple is unable to conceive and/or give birth to a child due to a medical condition that is permanent and irreversible, they may consider surrogacy.
• Surrogacy is where a woman (“surrogate”) voluntarily undertakes to be artificially inseminated in order to bear and give birth to a child on behalf of another person or couple, also known as the commissioning parent/s.
• Surrogacy is strictly regulated by the Children's Act, which sets out the procedure and requirements for surrogacy to ensure that it is legal.
• In order for surrogacy to be legal, all parties concerned must enter into a written surrogate motherhood agreement that must be confirmed by the High Court within whose area of jurisdiction the commissioning parent/s are domiciled or habitually resident. 
• A surrogate has no parental rights and responsibilities over the child and cannot keep the child or take him/her back in the future.
• A surrogate may terminate her pregnancy in terms of the Choice of Termination of Pregnancy Act. However, the surrogate must inform and consult the commissioning parent/s of her decision to terminate the pregnancy before the termination is carried out.
• Surrogacy is voluntary and a surrogate is not allowed to receive payment or gifts with the intention of coercing her to become a surrogate. The commissioning parent/s may pay for expenses during the pregnancy.

The Constitution of the Republic of South Africa (commonly referred to as the Constitution) is the highest law in South Africa. This means that any legislation and decisions of courts must be in accordance with what is stated in the Constitution. The Bill of Rights is a chapter within the Constitution where the human rights are set out, such as the right to life, privacy and fair labour practices. Seeing as the Bill of Rights is a chapter within the Constitution, it is also the highest law in South Africa.

• The human rights of children, which includes the best interests of children, are of paramount importance in our society and are protected by section 28 of the South African Constitution.
• What will be considered as being in the best interests of a child is quite a wide topic that includes every aspect that affects children’s lives. For example, the health effects that smoking can have on children.
• The Tobacco Products Control Act 83 of 1993 (“Tobacco Act”) provides for some limitations on where a person is allowed to smoke in order to protect children.
• For example, the Tobacco Act provides that no person may smoke any tobacco product in:
  • a public place;
  • any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place; or
  • any motor vehicle when a child under the age of 12 years is present in that vehicle.
• The Tobacco Act further provides that no person may smoke any tobacco product in a private dwelling used for any commercial childcare activity, schooling or tutoring
• A private dwelling includes, for example, any room, apartment or building which is occupied or used as a residence.
• These limitations provided for in law are aimed at protecting children’s human rights. Not just in respect of what would be in their best interests, but also in respect of their human right to a healthy environment (section 24 of the Constitution).

• It is not a legal requirement for a woman to change her last name to her husband's once they get married.
•  Although it is generally required to apply at the Department of Home Affairs to change a surname, no application is necessary in the following circumstances:
  • where a woman assumes the surname of her husband;
  • where a divorced woman or a widow, resumes any surname she had previously, such as her maiden name;
  • where a woman adds another surname to her current surname after marriage, such as a double-barrelled surname.
•  If a woman decides to assume a different surname in one of the abovementioned circumstances, she must still notify the Department of Home Affairs in writing of same to update the population register.

Every person has the right to approach a court to resolve any dispute s/he may have with another person or entity (such as a company) through the application of law. This is known as the right to access to courts. This right also includes to have the dispute resolved in a fair public hearing in court or other tribunal or forum, such as an Ombudsman.

A person who feels that his/her human rights have been violated can do the following:
-  Contact the South African Human Rights Commission (“SAHRC”) to lodge a complaint. The SAHRC will resolve the complaint through negotiation, mediation or arbitration.
- Approach a court to enforce his/her right to claim compensation if the limitation caused damages. It is recommended to obtain the assistance of an attorney when approaching the court.
- Lodge a complaint with another institution, such as the Public Protector or a non-governmental organisation.

Section 40 of the Electoral Act 73 of 1998 states that if a voter makes a mistake on their ballot paper before they have placed it in the ballot box, they may give it back to the presiding officer at the voting station, who will then issue them with a new ballot paper. That ballot paper will be marked as cancelled and be dealt with as provided for under the Electoral Act.

It may happen that two persons try to enforce their human rights against each other, for example, where one person says something to another who takes offence to what is said. In this example the person who made the statement might want to enforce his/her right to freedom of expression (including freedom of speech). The other person who was offended might want to enforce his/her right to dignity. In a situation like this, the courts will have to make a decision on which right will prevail. The courts will have to weigh the right to freedom of expression of the one person to say what s/he wants, against the other person’s right to not have their dignity impaired. Various factors will be taken into account in deciding which right to limit, such as what has been said and to whom it was said, the reason for the statement and whether the statement was made public or not, and so on.

• Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality.
• Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

• Section 12 of the Constitution grants everyone the right to freedom and security of the person. It further states that everyone has the right to bodily and physical integrity, which includes the right to make decisions concerning reproduction.
• The right to make decisions concerning reproduction is afforded to persons of all genders, but has the following unique consequences that may only be applicable to women:
• A woman is free to decide whether she wants to have children or not and should not be discriminated against based on her decision;
• A pregnant woman can voluntarily terminate her pregnancy for any reason up to the twelfth week of pregnancy, in terms of the Choice on Termination of Pregnancy Act; and
• A pregnant woman is entitled to maternity leave and employers are not permitted to unreasonably refuse to grant such leave.

The National Health Insurance Bill has already been approved by the portfolio committee for health, parliament and the National Council of Provinces. However, it still has to be signed off by President Cyril Ramaphosa before it can come into effect and be made a law of South Africa.

The National Health Insurance Bill aims to implement the National Health Insurance (“NHI”). The NHI will be a fund that may be formed to provide all South Africans affordable healthcare across the board. The NHI will provide funding for both private and public healthcare providers with the objective to provide universal access to quality health care for all South Africans as provided in the Constitution. Section 27 of the Constitution provides for healthcare as an essential human right and provides that everyone has the right to access to health care services.

There are many steps and procedures that must be followed before any new law can come into effect. Below is a brief summary of the steps that are generally taken when making new laws:

• First step: a proposed law, which is also known as a Bill, is drafted mainly by government departments under the guidance of the relevant minister.
• Second step: when the Bill has been drafted, it needs to be introduced to either the National Assembly or the National Council of Provinces (“NCOP”).
• Third step: once the Bill has been introduced, it is then referred to the relevant Committee.
• Fourth step: the Bill will then be published in the Government Gazette for comments by any relevant party or member of the public.
• Fifth step: once the Committee accepts the Bill, it will be debated in the National Assembly and also sent to the NCOP for further considerations.
• Sixth step: once considerations have been made by the National Assembly and NCOP, the final version of the Bill is sent to the President.
• Seventh step: once the President signs the Bill, it then becomes an Act of Parliament and a law of South Africa

• The right to have access to social security is recognised as a human right under section 27 of the Constitution and includes appropriate social assistance to persons who are unable to support themselves and their dependants.
• Social security aims to ensure that all people have adequate economic and social protection during certain events, such as unemployment.
• Examples of appropriate social assistance include old-age grants, child support grants and disability grants.
• During the national state of disaster, the Temporary Employee/Employer Relief Scheme (“TERS”) can be seen as a form of social assistance. TERS is a special benefit created to provide emergency relief to employers so that they may continue to pay their employees during a temporary lay-off.

Section 19 of the Constitution deals with political rights and provides that every citizen has a right to regular elections that are free and fair. The Constitution also provides for the human right of every adult citizen to vote in elections (provided that they are registered to vote). Every South African citizen is also entitled by the Constitution to make political choices, which includes to form a political party, to participate in the activities of a political party and to campaign for a political party. However, it should be kept in mind that exercising these rights must be done in accordance with the measures and procedures put in place from time to time.

• When submitting a tax return, it is not always as simple as just completing the necessary forms and the process is done. A taxpayer will have to be able to prove everything captured on the tax return. This means that a taxpayer must not throw away any important receipts or other documents that may be used when completing a tax return.
• Not only the income of a taxpayer plays a role, but there may also be certain deductions applicable. For example, certain medical expenses can be deducted for income tax purposes and the taxpayer must be able to prove those expenses by submitting receipts and so on.
• The following documents are some of the documents that a taxpayer might need when submitting a tax return:
  • IRP5/IT3(a) certificate received from an employer. This document sets out, amongst other things, the taxpayer's remuneration received from the employer, whether or not the employer deducted PAYE, medical aid deductions and so on. The employer will provide this document to the taxpayer, or submit it directly to SARS.
  • Medical certificates (usually in respect of medical aid deductions), as well as documents and receipts for medical expenses not covered by a medical aid.
  • Certificates and details in respect of a pension and retirement annuity, as well as any other financial investment.
  • If a taxpayer receives a travel allowance, SARS may request him/her to submit the travel logbook.
  • Any other document in relation to income, expenses and deductions submitted with a tax return.

If your luggage is lost or damaged during your holidays, you need to lodge a complaint as soon as possible. It is preferable to do so immediately as you become aware of the loss or damage.

• The risk of lost or damaged luggage is higher at an airport and might be as a result of the airline. If that is the case, you can submit a claim with the airline you were travelling with.
• The airlines have their own terms and conditions, including prescribed forms that would need to be filled in when submitting a claim.
• It is worth noting that some airlines might have an indemnity clause in their terms and conditions that absolve them from being liable for damages or limit their liability. It is important to keep this in mind when booking flights.

• As the youth of South Africa start their careers with their first jobs, they are also faced with having to pay income tax.
• There are quite a lot of requirements that must be complied with, however, the general rule is that everyone earning an income must pay tax.
• The following principles are quite important to keep in mind when establishing whether income tax must be paid or not:
  • All income of an individual is considered, including but not limited to, salaries and interest earned on investment.
  • Under South African law, the worldwide income of an individual is considered. This means that in today's time and age where it is possible to earn an income in a foreign currency while staying in South Africa, it will still be considered as an income for South African income tax purposes.
• There are also certain exemptions that may apply depending on the annual income of an individual. For example, during the 1 March 2022 to 28 February 2023 assessment period, a person younger than 65 years of age and who earned less than R91,250 for the assessment period does not have to pay income tax.
• Not all taxpayers need to submit an income tax return, even though s/he does have to pay income tax. For example, a taxpayer's employer can deduct income tax (Pay As You Earn – PAYE) from his/her salary on a monthly basis to pay over to South African Revenue Service (“SARS”). If this is the case and the taxpayer's annual income is less than R500,000 from a single employer, it might not be necessary to submit a tax return.
• A tax return is a form that must be completed and submitted to SARS in order to calculate the amount of income tax that must be paid or refunded.
• Be careful and get advice! The consequences of not complying with tax related laws and procedures can have severe consequences. Be very careful not to just assume that you do not have to submit a tax return or that you are exempt from paying income tax. No matter what your circumstances and annual income, always get advice and clarity.
• Visit the SARS Website at www.sars.gov.za for more information.