Section 37 Constitution of South Africa 1996

Preamble Section 1-6 [Chapter 1 – Founding provisions] Section 7-8 (Rights & Appilcation) Section 9 (Equality) Section 10-11 (Human Dignity & Life) Section 12 (Freedom and Security of the Person) Section 13-14 (Slavery, Servitude and Forced Labour & Privacy) Section 15 (Freedom of Religion, Belief and Opinion) Section 16 (Freedom of Expression) Section 17-18 (Assembly, Demonstration, Picket and Petition & Freedom of Association) Section 19 (Political Rights) Section 20-21 (Citizenship & Freedom of Movement and Residence) Section 22 (Freedom of Trade, Occupation and Profession) Section 23 (Labour Relations) Section 24 (Environment) Section 25 (Property) Section 26-27 (Housing & Health Care, Food Water and Social Security) Section 28 (Children) Section 29 (Education) Section 30 (Language and Culture) Section 31 (Cultural, Religious and Linguistic Communities) Section 32 (Access to Information) Section 33 (Just Administrative Action) Section 34 (Access to Courts) Section 35 (Arrested, Detained and Accused Persons) Section 36 (Limitation of Rights) Section 37 (States of Emergency) Section 38 (Enforcement of Rights) Section 39 (Interpretation of Bill of Rights) Section 40-41 [Chapter 3 – Co-operative government] Section 42-52 Section 53-63 Section 64-74 Section 75-82 Section 83-92 Section 93-102 [Chapter 1 – Founding provisions] Section 103 (Provinces) Section 104-114 Section 115-124 Section 125-132 Section 133-141 Section 142-145 (Provincial Constitutions) Section 146-150 (Conflicting Laws) Section 151-164 [Chapter 7 – Local Government] Section 165-172 Section 173-180 Section 181-194 [Chapter 9 – State institutions supporting constitutional democracy] Section 195-197 [Chapter 10 – Public Administration] Section 198-210 [Chapter 111 – Security Services] Section 211-212 [Chapter 12 – Traditional Leaders] Section 213-219 (General Financial Matters) Section 220-230 Section 231-243 (General Provisions) Schedule 1 – National Flag Schedule 1A – Geographical areas of provinces Schedule 2 – Oaths & Solemn Affirmations Schedule 3 – Election Procedures Schedule 4 – Functional Areas of Concurrent National and Provincial Legislative Competence Schedule 5 – Functional Areas of Exclusive Provincial Legislative Competence Schedule 6 – Transitional Arrangements Schedule 7 – Laws Repealed

Section 37 Constitution of South Africa 1996

Section 37 of the Constitution of South Africa 1996 (as amended) is about  States of emergency. It is under Chapter 2 of the Constitution. Chapter 2 is titled ‘Bill of Rights‘.

SEE ALSO  Article 38 Uganda Constitution 1995

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.

2. A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only ­

a. prospectively; and

b. for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. 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.

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.

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

SEE ALSO  Article 258-262 Uganda Constitution 1995

iii. is published in the national Government Gazette as soon as reasonably possible after being enacted.

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
9EqualityWith respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language
10Human DignityEntirely
11LifeEntirely
12Freedom and Security of the personWith respect to subsections (1)(d) and (e) and (2)(c).
13Slavery, servitude and forced labourWith respect to slavery and servitude
28ChildrenWith 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
35Arrested, detained and accused personsWith 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.

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.

SEE ALSO  Section 151-164 Constitution of South Africa 1996

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.

f. A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.

g. The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.

h. The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.

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.


See also:

Section 35 Constitution of South Africa 1996

Section 36 Constitution of South Africa 1996

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Inioluwa Olaposi

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