The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, 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 first non-racial elections. It was promulgated by President Nelson Mandela on 10 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993.
Since 1996, the Constitution has been amended by seventeen 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, neither it nor the acts amending it are allocated act numbers.
An integral part of the negotiations to end apartheid in South Africa was the creation of a new, non-discriminatory constitution for the country. 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.
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. 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, which would effectively have given it a veto.
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. 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.
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.
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.
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. On 8 May 1996, a new text was adopted with the support of 86 per cent of the members of the assembly, but in the First Certification judgment, delivered on 6 September 1996, the Constitutional Court refused to certify this text, identifying a number of provisions that did not comply with the constitutional principles.
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. 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.
Since its adoption, the Constitution has been amended sixteen times; these amendments are described in a separate section below.
The constitution consists of a preamble, fourteen chapters containing 244 sections, and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.
Chapter 1: Founding Provisions
Chapter 2: Bill of Rights
Chapter 2 is a bill of rights which enumerates the civil, political, economic, social and cultural human 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 9: the right to equality before the law and freedom from discrimination. Prohibited grounds of discrimination include race, gender, sex, pregnancy,marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
- Section 10: the right to human dignity.
- Section 11: the right to life, which has been held to prohibit capital punishment, but does not prohibit abortion.
- Section 12: the right to freedom and security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman or degrading punishment, the right to bodily integrity, and reproductive rights.
- Section 13: freedom from slavery, servitude or forced labour.
- Section 14: the right to privacy, including protection against search and seizure, and the privacy of correspondence.
- Section 15: freedom of thought and freedom of religion.
- Section 16: freedom of speech and expression, including freedom of the press and academic freedom. Explicitly excluded are propaganda for war, incitement to violence and hate speech.
- Section 17: freedom of assembly and the right to protest.
- Section 18: freedom of association.
- Section 19: the right to vote and universal adult suffrage; the right to stand for public office; the right to free, fair and regular elections; and the right to form, join and campaign for a political party.
- Section 20: no citizen may be deprived of citizenship.
- Section 21: freedom of movement, including the right to leave South Africa, the right of citizens to a passport and the right to enter South Africa.
- Section 22: the right to choose a trade, occupation or profession, although these may be regulated by law.
- Section 23: labour rights, including the right to unionise and the right to strike.
- Section 24: the right to a healthy environment and the right to have the environment protected.
- 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 26: the right to housing, including the right to due process with regard to court-ordered eviction and demolition.
- 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 28: children’s rights, including the right to a name and nationality, the right to family or parental care, the right to a basic standard of living, the right to be protected from maltreatment andabuse, the protection from inappropriate child labour, the right not to be detained except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyer in court cases involving the child, and the prohibition of the military use of children.
- Section 29: the right to education, including a universal right to basic education.
- Section 30: the right to use the language of one’s choice and to participate in the cultural life of one’s choice.
- Section 31: the right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language.
- Section 32: the right of access to information, including all information held by the government.
- Section 33: the right to justice in administrative action by the government.
- Section 34: the right of access to the courts.
- Section 35: the rights of arrested, detained and accused people, including the right to silence, protection against self-incrimination, the right to counsel and legal aid, the right to a fair trial, thepresumption of innocence and the prohibition of double jeopardy and ex post facto crimes.
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.”
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.
Chapter 4: Parliament
Chapter 4 defines the structure of Parliament, the legislative branch of the national government. Parliament consists of two houses, the National Assembly (the lower house), which is directly elected by the people, and the National Council of Provinces (the upper house), which is elected by the provincial legislatures.
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.
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.
Chapter 6: Provinces
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.
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 8: Courts and Administration of Justice
Chapter 8 establishes the structure of the judicial system. It defines the hierarchy consisting of Magistrates’ Courts, the High Court, the Supreme Court of Appeal, and the Constitutional Court. It provides for the appointment of judges by the President on the advice of the Judicial Service Commission and establishes a single National Prosecuting Authority responsible for all criminal prosecutions.
Chapter 9: State Institutions Supporting Constitutional Democracy
Chapter 10: Public Administration
Chapter 10 lists values and principles for the administration of the civil service and establishes the Public Service Commission to oversee it.
Chapter 11: Security Services
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.
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.
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 1, referred to in Chapter 1, describes the national flag.
- Schedule 1A, referred to in Chapter 6, defines the geographical areas of the provinces, by reference to maps published by the Municipal Demarcation Board defining the metropolitan and district municipalities.
- Schedule 2 contains the texts of the oaths or solemn affirmations to be sworn by political office-holders and judges.
- 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.
- Schedule 4 lists the “functional areas” over which Parliament and the provincial legislatures have concurrent competence to legislate.
- Schedule 5 lists the functional areas over which the provincial legislatures have exclusive competence to legislate.
- 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.
- Schedule 7 lists the laws repealed by the new constitution, these being the interim constitution and the ten amendments made to it.
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 seventeen amendments since 1996.
The South Africa Act 1909, an act of the Parliament of the United Kingdom, unified four British colonies – Cape Colony, Transvaal Colony, Orange River Colony and Natal Colony – into the Union of South Africa, a self-governing Dominion.
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 unchanged.
The Republic of South Africa Constitution Act, 1983 created the Tricameral Parliament, with separate houses representing white, coloured and Indian people but without representation for black people. The figurehead State President and executive Prime Minister were replaced by an executive State President.
The Constitution of the Republic of South Africa, 1993 or Interim Constitution was introduced at the end of apartheid to govern the period of transition. It introduced universal adult suffrage, constitutional supremacy and a bill of rights.
Notes and references
- ^ “The Constitution: The certification process”. Constitutional Court of South Africa. Retrieved 13 October 2009.
- ^ Act 5 of 2005.
- ^ a b c d Barnes, Catherine; de Klerk, Eldred (2002). “South Africa’s multi-party constitutional negotiation process”. Owning the process: Public participation in peacemaking. Conciliation Resources. Retrieved 19 October 2011.
- ^ a b c d Goldstone, Richard (1997). “The South African Bill of Rights”. Texas International Law Journal 32: 451–470.
- ^ Certification of the Constitution of the Republic of South Africa, 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  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.
- ^ S v Makwanyane 1995 (3) SA 391 (CC).
- ^ Christian Lawyers Association v Minister of Health 1998 (4) SA 1113 (T).
- ^ s 36(1).