Know your rights – freedom and security
“Those who deny freedom to others deserve it not for themselves” (Abraham Lincoln).
Section 12 combines a right to freedom and security of the person with a right to bodily and psychological integrity.
Five key aspects can be taken from this section. These include, the right not to be deprived of freedom arbitrarily or without just cause, not to be detained without a trial, not to be tortured, to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way.
In essence, the aim is to protect bodily integrity and physical liberty of the individual against unjustified invasion by the State. In particular, it protects citizens against invasions of physical integrity by way of arbitrary arrest, violence, torture or cruel treatment and punishment (Ferreira versus Levin NO).
Where this right is infringed protection is guaranteed by section 12(1).
This right may be limited under reasonable circumstances such as a prisoner has been restrained to a cell as a punishment for crimes committed or a contravention of the rules, this will not infringe his right to freedom.
Another key example would be searching or questioning persons at a road block or requesting proof of your identity.
When this right is limited, O’ Regan J outlines in S v Coetzee that firstly, the State must provide reasons for why they have deprived someone of their freedom. It must be determined what is reasonable in the given circumstances, to establish whether there is an infringement of one’s physical freedom.
The Constitution provides that freedom may not be deprived “arbitrarily or without just cause”. Put simply, it must just be asked whether the grounds upon which the freedom has been restricted are reasonable.
Should the limitation of this right be challenged by an idividual, the state must provide reasons for the manner in which the person is deprived of their freedom. Protection is determined on a case by case basis and O’Regan outlines that it “will depend on the nature of the deprivation and its purpose”.
Compiled by Tracey-Lee Lindsay – candidate attorney at Malherbe Rigg and Ranwell Incorporated.
Malherbe Rigg and Ranwell Attorneys will each week introduce readers of the Advertiser to your Rights, published under the Bill of Rights within the South African Constitution. Those with further information regarding their rights may communicate a query to jeff@mrr.co.za.
