The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Government. The current constitution, the country's fifth, was drawn up by the Parliament elected in 1994 in the South African general election, 1994. It was promulgated by PresidentNelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993.[1] The first constitution was enacted by the South Africa Act 1909, the longest-lasting to date. Since 1961, the constitutions have promulgated a republican form of government.
Since 1996, the Constitution has been amended by eighteen amendment acts. The Constitution is formally entitled the "Constitution of the Republic of South Africa, 1996." It was previously also numbered as if it were an Act of Parliament – Act No. 108 of 1996 – but, since the passage of the Citation of Constitutional Laws Act,[2] neither it nor the acts amending it are allocated act numbers.
The Republic of South Africa Constitution Act, 1961 transformed the union into a republic, replacing the Queen with a State President, but otherwise leaving the system of government largely unchanged. By removing the last Commonwealth legal vestiges, however, the act made the then-apartheid government completely sovereign. In a referendum, the first national election with a solely white electorate, the Act was narrowly approved, with a substantial minority in the Cape province and a strong majority in Natal opposing it.
The Republic of South Africa Constitution Act, 1983, again approved by a whites-only referendum, created the Tricameral Parliament, with separate houses representing Whites, Coloureds and Indians but without representation for Blacks. The figurehead State President and executive Prime Minister were merged into an executive State President, chosen by parliament. This contradiction remains to date and is nearly unique to South Africa (one exception being neighbouring Botswana).
An integral part of the negotiations to end apartheid in South Africa was the creation of a new constitution. One of the major disputed issues was the process by which such a constitution would be adopted. The African National Congress (ANC) insisted that it should be drawn up by a democratically elected constituent assembly, while the governing National Party (NP) feared that the rights of minorities would not be protected in such a process, and proposed instead that the constitution be negotiated by consensus between the parties and then put to a referendum.[3][4]
Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA). The parties agreed on a process whereby a negotiated transitional constitution would provide for an elected constitutional assembly to draw up a permanent constitution.[3] The CODESA negotiations broke down, however, after the second plenary session in May 1992. One of the major points of dispute was the size of the supermajority that would be required for the assembly to adopt the constitution: The NP wanted a 75 per cent requirement,[4] which would effectively have given it a veto.[3]
In April 1993, the parties returned to negotiations, in what was known as the Multi-Party Negotiating Process (MPNP). A committee of the MPNP proposed the development of a collection of "constitutional principles" with which the final constitution would have to comply, so that basic freedoms would be ensured and minority rights protected, without overly limiting the role of the elected constitutional assembly.[4] The parties to the MPNP adopted this idea and proceeded to draft the Interim Constitution of 1993, which was formally enacted by Parliament and came into force on 27 April 1994.
Interim Constitution
The Interim Constitution provided for a Parliament made up of two houses: a 400-member National Assembly, directly elected by party-list proportional representation, and a ninety-member Senate, in which each of the nine provinces was represented by ten Senators, elected by the provincial legislature. The Constitutional Assembly consisted of both houses sitting together, and was responsible for drawing up a final constitution within two years. The adoption of a new constitutional text required a two-thirds supermajority in the Constitutional Assembly, as well as the support of two-thirds of senators on matters relating to provincial government. If a two-thirds majority could not be obtained, a constitutional text could be adopted by a simple majority and then put to a national referendum in which sixty per cent support would be required for it to pass.[5]
The Interim Constitution contained 34 constitutional principles with which the new constitution was required to comply. These included multi-party democracy with regular elections and universal adult suffrage, supremacy of the constitution over all other law, a quasi-federal system in place of centralised government, non-racism and non-sexism, the protection of "all universally accepted fundamental rights, freedoms and civil liberties," equality before the law, the separation of powers with an impartial judiciary, provincial and local levels of government with democratic representation, and protection of the diversity of languages and cultures. The Bill of Rights, now in Chapter Two of the Constitution of South Africa, was largely written by Kader Asmal and Albie Sachs. The new constitutional text was to be tested against these principles by the newly established Constitutional Court. If the text complied with the principles, it would become the new constitution; if it did not, it would be referred back to the Constitutional Assembly.
Final text
The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. As the deadline for the adoption of a constitutional text approached, however, many issues were hashed out in private meetings between the parties' representatives.[3] On 8 May 1996, a new text was adopted with the support of 86 per cent of the members of the assembly,[4] but in the First Certification judgment, delivered on 6 September 1996, the Constitutional Court refused to certify this text. The Constitutional Court identified a number of provisions that did not comply with the constitutional principles. Areas of non-compliance included failures to protect the right of employees to engage in collective bargaining; to provide for the constitutional review of ordinary statutes; to entrench fundamental rights, freedoms and civil liberties and to sufficiently safeguard the independence of the Public Protector and Auditor-General as well as other areas of non-compliance in relation to local government responsibilities and powers.[6]
The Constitutional Assembly reconvened and, on 11 October, adopted an amended constitutional text containing many changes relative to the previous text. Some dealt with the court's reasons for non-certification, while others tightened up the text. The amended text was returned to the Constitutional Court to be certified, which the court duly did in its Second Certification judgment, delivered on 4 December.[7] The Constitution was signed by President Mandela on 10 December and officially published in the Government Gazette on 18 December. It did not come into force immediately; it was brought into operation on 4 February 1997, by a presidential proclamation, except for some financial provisions which were delayed until 1 January 1998.
Contents
The constitution consists of a preamble, fourteen chapters containing 244 sections,[8] and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.
Chapter 1 enshrines in the constitution key national principles, defines the country's flag and national anthem, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. The chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution.
Chapter 2 is a bill of rights which enumerates the civil, political, economic, social and culturalhuman rights of the people of South Africa. Most of these rights apply to anyone in the country, with the exception of the right to vote, the right to work and the right to enter the country, which apply only to citizens. They also apply to juristic persons to the extent that they are applicable, taking into account the nature of the right. The rights enumerated are:
Section 25: the right to property, limited in that property may only be expropriated under a law of general application (not arbitrarily), for a public purpose and with the payment of compensation.
Section 27: the rights to food, water, health care and social assistance, which the state must progressively realise within the limits of its resources.
Section 36 allows the rights listed to be limited only by laws of general application, and only to the extent that the restriction is reasonable and justifiable in "an open and democratic society based on human dignity, equality and freedom."[9]
Section 37 allows certain rights to be limited during a state of emergency but places strict procedural limits on the declaration of states of emergency and provides for the rights of people detained as a result.
Chapter 3: Co-operative Government
Chapter 3 deals with the relationships between organs of government in the three "spheres" – national, provincial and local. It lays down a set of principles requiring them to co-operate in good faith and to act in the best interests of the people. It also requires them to attempt to settle disputes amicably before resorting to the courts.[10]
The Chapter defines the principles governing the election and dissolution of the houses, qualifications for membership of Parliament, quorum requirements, procedures for the election of presiding officers, and the powers and privileges and immunities of Parliament and its members. It lays down the process for enacting bills into law; different procedures are provided for constitutional amendments, ordinary bills not affecting provincial matters, ordinary bills affecting provincial matters, and money bills.[11]
Chapter 5: The President and National Executive
Chapter 5 defines the structure of the national executive and the powers of the President. It provides for the election and removal of the President by the National Assembly, and limits a President to two five-year terms. It vests in him or her the powers of the head of state and head of government; it provides for the appointment of a Cabinet by the President; and it provides for the accountability to Parliament of the President and Cabinet.[12]
Chapter 6 establishes the nine provinces of South Africa and defines the powers and structure of the provincial governments. The boundaries of the provinces are defined by reference to Schedule 1A to the Constitution, which refers in turn to the boundaries of the metropolitan and district municipalities.
In some respects, the chapter is a template which a province may modify to a limited extent by adopting its own provincial constitution. (The only province so far to have done this is the Western Cape.) The chapter provides for a unicameral legislature, a Premier elected by the legislature as head of the provincial executive, and an Executive Council appointed by the Premier as a provincial cabinet.
The provincial government is given exclusive powers over certain matters, listed in Schedule 5, and powers concurrent with the national government over other matters, listed in Schedule 4. The chapter regulates the conflict between national and provincial legislation on the same topic, setting out the circumstances under which one or the other will prevail.[13]
Chapter 7: Local Government
Chapter 7 sets out a framework for local government. It requires municipalities to be established for the whole territory of South Africa, and provides for three categories of municipalities, whereby some areas are governed by a single "Category A" municipal authority and others are governed by a two-level system with a larger "Category C" municipality containing multiple "Category B" municipalities. The municipalities are granted the power to administer certain matters listed in Schedules 4 and 5, and the executive and legislative authority is vested in the municipal council. The chapter requires municipal elections to be held every five years.
Chapter 11 establishes structures for civilian control of the Defence Force, the Police Service and the intelligence services. It makes the President the Commander-in-Chief of the defence force but places conditions on when and how it may be employed and requires regular reports to Parliament. The police service is placed under the control of the national government but gives provincial governments some power to administer and oversee policing.
Chapter 12: Traditional Leaders
Chapter 12 recognizes the status and authority of traditional leaders and customary law, subject to the Constitution. It allows for the creation of provincial houses of traditional leaders and a national council of traditional leaders.
The Traditional leaders must have responsibilities in affairs and decision making of the municipality in order to build proper sustainable development to the people that resides on that municipality. Because we have Traditional leaders that do not have daily duties day in and day out; in short they must be part of mayoral council.
Chapter 13: Finance
Chapter 13 deals with public finance. It establishes a National Revenue Fund, from which money may be appropriated only by an act of Parliament, and Provincial Revenue Funds, from which money may only be appropriated by an act of the provincial legislature. It provides for an equitable distribution of national revenue to the provinces and municipalities, and grants provincial and local governments the powers to raise certain rates and taxes. It requires effective and transparent budgeting at all levels of government and gives the National Treasury the power to oversee budgetary processes. It places some restrictions on government procurement and government borrowing. The chapter establishes the Financial and Fiscal Commission, to advise government on financial matters, and the Reserve Bank, to oversee the currency.
Economist Jacques Jonker has criticised the provisions of Chapter 13 as being insufficient to guard against fiscal imprudence, and has suggested that it be amended in line with other constitutions such as that of Spain in order to enforce fiscal discipline.[15][16]
Chapter 14: General Provisions
The final chapter deals with transitional and incidental provisions. In particular, the first part deals with international law, providing that existing agreements binding South Africa will continue to bind it, and that new agreements (except those of a technical nature) will only be binding once approved by Parliament. It also provides that customary international law applies in South African unless it conflicts with national law, and that the courts must, where possible, interpret national law to be consistent with international law.
The remainder of the chapter contains a miscellaneous collection of provisions,
allowing Parliament to enact Charters of Rights which expand on the Bill of Rights;
allowing recognition of the right of self-determination of communities within South Africa;
requiring public funding for political parties represented in national and provincial legislatures;
requiring that obligations imposed by the constitution be carried out without delay;
providing that some executive powers may be delegated by one organ of state to another;
defining certain terms used in the text of the constitution; and,
as the Constitution is published in all eleven official languages, providing that the English text is authoritative in the event of a conflict.
Chapter 14 also repeals the Interim Constitution and refers to Schedule 6 to govern the process of transition to the new Constitution. Finally, it gives the Constitution its formal title, "Constitution of the Republic of South Africa, 1996," and defines the schedule for its commencement, under which the President set the date of commencement for most sections, although certain sections dealing with financial matters commenced only on 1 January 1998.
Schedule 2 contains the texts of the oaths or solemn affirmations to be sworn by political office-holders and judges.[19]
Schedule 3 describes the procedure for the election of the President by the National Assembly and the election of presiding officers by legislative bodies, as well as the formula whereby seats in the National Council of Provinces are to be allocated to political parties.[20]
Schedule 4 lists the "functional areas" over which Parliament and the provincial legislatures have concurrent competence to legislate.[21]
Schedule 5 lists the functional areas over which the provincial legislatures have exclusive competence to legislate.[22]
Schedule 6 details the transitional arrangements by which institutions existing under the previous constitution were converted into the institutions established by the new constitution. It provides for the continuation of existing laws and the assignment of their administration to the provincial governments where appropriate. It also provides for certain sections of the old constitution to continue in force despite its repeal, and subject to amendments listed in the schedule. It also includes temporary amendments to the Constitution's own text which allowed the Government of National Unity to continue until the 1999 election.[23]
Schedule 7 lists the laws repealed by the new constitution, these being the interim constitution and the ten amendments made to it.[24]
Amendments
Section 74 of the Constitution provides that a bill to amend the Constitution can only be passed if at least two-thirds of the members of the National Assembly (that is, at least 267 of the 400 members) vote in favour of it. If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the country's founding values, would require the support of three-quarters of the members of the National Assembly. There have been eighteen amendments since 1996.
The Constitution First Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1997) was signed by the President on 28 August 1997 but had effect retroactively to 4 February 1997 when the constitution came into force. It had three provisions:
to provide that a person who serves as Acting President of the Republic more than once during a single presidential term only has to swear the oath of office the first time that they become Acting President.
to allow the President of the Constitutional Court to designate another judge to administer the oath of office to the President or Acting President, rather than administering it personally.
This last change allowed the TRC to deal with various violent events, particularly the Bophuthatswana coup d'état and its aftermath, that had occurred in the run-up to the 1994 general elections.
The Constitution Second Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1998) came into force on 7 October 1998. It had five provisions:
The Constitution Third Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 1998) came into force on 30 October 1998. It allowed for municipalities to be established across provincial boundaries by the agreement of the national and the relevant provincial governments. The changes it made were reversed in 2005 by the Twelfth Amendment.
The Constitution Fourth Amendment Act and Constitution Fifth Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1999 and Constitution of the Republic of South Africa Second Amendment Act, 1999) came into force on 19 March 1999. They were passed as two separate amendments because the Fourth contained provisions affecting provincial government, which required the approval of the National Council of Provinces, while the Fifth did not.
The Fourth Amendment:
clarified that elections to the provincial legislatures may be called either before or after the term of office of the previous legislature has expired.
The Constitution Sixth Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 2001) came into force on 21 November 2001. Its main effect was to give the title of "Chief Justice of South Africa" to the presiding judge of the Constitutional Court of South Africa, who had previously been titled "President of the Constitutional Court". The presiding judge of the Supreme Court of Appeal (SCA), who had previously had the title of Chief Justice, became instead "President of the Supreme Court of Appeal". The deputy heads of each court were also renamed similarly. Consequentially many provisions of the Constitution had to be amended where they made reference to the President of the Constitutional Court.
These changes were intended to clarify the structure of the South African judiciary. Previously, the President of the Constitutional Court was responsible for various constitutional responsibilities, such as calling the first session of Parliament after an election and presiding over the election of the President of the Republic at that session, while the Chief Justice was responsible for judicial administration, including for example chairing the Judicial Service Commission. These responsibilities were merged into a single post, reflecting the pre-eminence of the Constitutional Court at the apex of the court system.
Other provisions of the amendment:
allowed the term of office of a Constitutional Court judge – usually twelve years or until the judge reaches the age of seventy, whichever is shorter – to be extended by an Act of Parliament.
allowed the President to appoint two Deputy Ministers from outside the National Assembly, where previously Deputy Ministers had to be members of the Assembly.
allowed municipal councils to bind the authority of future successor councils, as security for a loan.
The Constitution Seventh Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 2001) came into force on 26 April 2002, except for provisions affecting the Financial and Fiscal Commission which came into force on 1 December 2003. It made various amendments to provisions affecting the financial management of national and provincial government, including:
requiring that Division of Revenue Bills (bills dividing revenue between national, provincial and local government) can only be introduced to Parliament by the Minister of Finance.
reducing the size of the Financial and Fiscal Commission from 22 members to nine members, by reducing the number of members chosen by the president from nine to two, and by replacing the nine members chosen by the nine provinces individually with three members chosen by the provinces collectively.
modifying the mechanisms whereby the national government can control the financial practices of the provincial governments.
These amendments allowed legislators to cross the floor, that is, to resign from their political party and join a different party (or form a new party) without losing their elected position. This was not originally allowed because South African elections are based on party-list proportional representation in which voters choose a political party rather than an individual candidate. Floor crossing therefore means that the composition of the elected bodies no longer represents the preferences of voters.
The Eighth and Ninth Amendments came into force on 20 June 2002, as did an ordinary act of Parliament called the Loss or Retention of Membership of National and Provincial Legislatures Act, 2002. The Eighth Amendment allowed members of municipal councils to cross the floor. The Loss or Retention of Membership Act was intended to allow members of the National Assembly and provincial legislatures to cross the floor. The Ninth Amendment made provision for the reallocation of seats in the National Council of Provinces when the party composition of a provincial legislature changed as a result of floor crossing.
However, on 4 October 2002, in the case of United Democratic Movement v President of the Republic of South Africa and Others, the Constitutional Court found the Loss or Retention of Membership Act to be unconstitutional, so floor crossing remained prohibited in the National Assembly and provincial legislatures. The Tenth Amendment was introduced to constitutionally allow floor crossing in the National Assembly and provincial legislatures; it came into force on 20 March 2003.
The changes made by these three amendments were reversed when floor crossing was ended in 2009 by the Fourteenth and Fifteenth Amendments.
The Constitution Eleventh Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 2003) came into force on 11 July 2003. It renamed the Northern Province to Limpopo, altered the procedure for intervention by the national government in a failing provincial government and intervention by a provincial government in a failing municipality, and expanded the powers of the provincial executive when it intervenes in a municipality.
Areas and boundaries affected by the Twelfth Amendment
The Constitution Twelfth Amendment Act came into force on 1 March 2006; it altered the boundaries of seven of the provinces. In the interim constitution the provinces had been defined in terms of magisterial districts; the amendment redefined them in terms of the district and metropolitan municipalities. The Twelfth Amendment also removed the provisions introduced by the Third Amendment that allowed municipalities to be established across provincial boundaries.
Some of the boundary changes encountered substantial public opposition. The community of Matatiele, which had been transferred from KwaZulu-Natal to the Eastern Cape, challenged the amendment before the Constitutional Court, which ruled on 18 August 2006 that the KwaZulu-Natal Legislature had not allowed for the necessary public participation before approving the amendment. The court's order was suspended for eighteen months, and during that time Parliament re-enacted the Matatiele boundary change as the Thirteenth Amendment, which came into force on 14 December 2007.
The people of Khutsong, which had been transferred from Gauteng to the North West, resorted to marches, protests (in some cases violent) and boycotts and stayaways. In 2009 the Merafong City Municipality, which contains Khutsong, was transferred back to Gauteng by the Sixteenth Amendment.
The Constitution Fourteenth and Fifteenth Amendment Acts came into force on 17 April 2009; they repealed the floor crossing provisions introduced by the Eighth, Ninth, and Tenth Amendments.
The Fourteenth Amendment contained the provisions which affected the provincial legislatures and the National Council of Provinces (NCOP), and therefore had to be approved by supermajority in the NCOP as well as the National Assembly, while the Fifteenth Amendment contained the remaining provisions which only had to be approved by the Assembly.
The Constitution Sixteenth Amendment Act came into force on 3 April 2009. It transferred the Merafong City Municipality from the North West province to Gauteng province. This followed community opposition and protest in Khutsong following from the boundary change introduced by the Twelfth Amendment.
The Constitution Seventeenth Amendment Act came into force on 23 August 2013; along with the Superior Courts Act it restructured the judicial system. The amendment:
declared the Chief Justice to be the head of the judiciary, with responsibility for administrative oversight of the courts.
expanded the jurisdiction of the Constitutional Court so that, as well as constitutional matters, it has jurisdiction over any matters of general public importance that it chooses to hear.
^Certification of the Constitution of the Republic of South Africa 5th, 1996[1996] ZACC 26, 1996 (4) SA 744, 1996 (10) BCLR 1253 (6 September 1996), Constitutional Court (South Africa)
^Certification of the Amended Text of the Constitution of the Republic of South Africa[1996] ZACC 24, 1997 (2) SA 97, 1997 (1) BCLR 1 (4 December 1996), Constitutional Court (South Africa)
^The last section is numbered 243, but a section 230A was inserted after section 230 by the Sixth Amendment.
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