When you feel that a right has been violated, the first step is to identify whether that right is one that is protected by the Constitution. Generally speaking a breach of contract does not give rise to a direct constitutional claim and the correct course of action would be to sue the other contracting party in terms of the contract.
If, however, that right is protected by the Bill of Rights, the next step is to find out whether you are a beneficiary of that right; in other words, whether that right applies to you.
Most rights apply to all human beings, but some rights, such as children’s rights and citizen’s rights, only apply to that particular class of beneficiary. Section 8 of the Constitution details which rights and duties apply to whom.
If the right does fall within the Bill of Rights, and if it applies to you, the final decision is who to approach to assist you to claim that right?Who can assist you?
As part of a commitment to ensuring compliance with the Constitution certain ‘State Institutions Supporting Constitutional Democracy’, commonly known as the Chapter 9 Institutions, were created in the Constitution. Their primary function is to promote specified rights and to consider allegations of violations of those rights. If you believe that a right falling within their ambit has been violated, a complaint can be lodged with the appropriate institution, which is then duty bound to consider it.These Institutions are:
The Public Protector (National Office)
The South African Human Rights Commission (Head Office)
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
The Commission for Gender Equality (Johannesburg (Head Office))
The Auditor General
The Electoral Commission (Head Office)
In addition to the [Chapter 9] institutions a number of civic organizations have been established with the express purpose of ensuring compliance with the Constitution. Individuals whose rights have been violated can approach these organizations who will either assist the individual in going to court or who will assist the court in litigation as amicus curiae, which is friend of the court, by explaining the violation in legal terms. Key NGOs are:
Treatment Action Campaign (TAC)
Amnesty International (SA)
Centre for Apllied Legal Rights (CALS)
Centre for Human Rights
Centre for Rural Legal Studies
Community Law Centre
Eastern Cape Para-Legal Association
Lawyers for Human Rights
Legal Resources Centre
National Human Rights Trust
Rape Crisis Cape Town
Wits Law School
In line with its mandate to ensure that everyone has the right to justice, the Government has also created various bodies that will assist individuals in claiming their rights. The most important is the Legal Aid Board which effectively acts as an attorney and manages the case at no cost for an aggrieved person who cannot afford legal assistance.
A similar body is the Road Accident Fund, which will pay a person damages suffered as a result of someone else’s negligent driving. Most major Municipalities have also established Ombudsman or watchdogs, to which complaints of right’s violations can be referred, at no cost to the complainant.The Legal Profession.
As custodians of the Constitution, the legal profession also offers free assistance in asserting rights. This is achieved through what is known as the pro bono or in good faith system. All advocates and attorneys are required to provide a certain amount of free legal advice to people who cannot afford to pay. To access this service you need to apply to either the Law Society of South Africa (which regulates the attorneys’ profession) or General Council of the Bar of South Africa (which regulates the advocates’ profession) in your area.
Law Society of South Africa:
General Council of the Bar of South Africa (GCB):