Areas of Law and Guides
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary. We'veÂ identified some articles that may be of interest to readers below.
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 18th 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 (Tswana, Sotho, Northern Sotho: molaotheo; Afrikaans: grondwet; Zulu, Southern Ndebele: umthethosisekelo; Xhosa: umgaqo-siseko; Swazi: umtsetfosisekelo; Venda: vumbiwa; Tsonga: ndayotewa) 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. 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.
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 seventeen times.
Most recent Articles posted
The Constitutional Court has ruled that the process followed by Communications & Digital Technologies Minister Khumbudzo Ntshavheni to determine the deadline for SA’s switch from analogue to digital television signal, was unlawful and unconstitutional.
The Constitutional Court yesterday confirmed a SCA ruling, which legally recognises Muslim marriages, and declares certain sections of the Marriage Act and Divorce Act unconstitutional, reports News24.
The Commission on Restitution of Land Rights is saddled with nearly 7 000 outstanding land claims that are yet to be finalised, dating back to the 1998 deadline for the submission of claims.
Speaker of Parliament Nosiviwe Mapisa-Nqakula yesterday declined to institute parliamentary action against President Cyril Ramaphosa with regard to the robbery at his farm in Limpopo.
President Cyril Ramaphosa suspended Public Protector Busisiwe Mkhwebane with immediate effect yesterday, bringing an immediate response from Mkhwebane and raising questions about the timing of the move.
The Liesbeek Leisure Properties Trust (LLPT) has made good its promise to file an urgent application to appeal in the SCA against Western Cape Deputy Judge President Patricia Goliath’s entire ruling, which stopped the construction of the R4.6bn project in its tracks in March.
Advocate Busisiwe Mkhwebane's bid to tether two top judges to the centrepiece of her battle for survival as Public Protector has been thwarted – for now – by the threat of legal action by the General Council of the Bar (GCB).
The Gauteng High Court had ’essentially’ amended the Constitution when it found the JSC had been properly constituted to decide that Western Cape Judge President John Hlophe was guilty of gross misconduct, Hlophe says in court papers.
For more than two years, the Constitutional Court precinct has not been used for its main purpose: the hearing of important constitutional cases.
A law student who stabbed two Pretoria police officers, claiming he thought they were criminals out to rob him, has succeeded in having his murder conviction and life sentence overturned by the Constitutional Court.
Public Protector Busisiwe Mkhwebane last Monday she said she would be seeking to postpone her court case – due back in the Western Cape High Court this week – about her possible impeachment and suspension.
Government has lost a bid to appeal a ruling granting AfriForum permission to interdict it from donating R50m to Cuba.
The Public Protector is set to challenge the Constitutional Court's rejection of her impeachment rescission bid. This is revealed in a letter Mkhwebane's legal team sent to the State Attorney yesterday.
The infamous ‘Abramjee leak’, which the Public Protector has seized upon to attempt to delay the parliamentary investigation into her possible impeachment, was predictably shown to be accurate when the Constitutional Court on Friday dismissed her rescission application.
The Constitutional Court’s response to the revelation of the infamous text message about a pending application before it has caused ‘the utmost dismay and concern on the part of the Public Protector’, Busisiwe Mkhwebane’s lawyers said in a second letter to the court.
‘Public Protector Busiswe Mkhwebane has taken to shooting herself in both feet. Her complaint to the JSC regarding the strongly worded judgment of the majority of the Constitutional Court against her, penned by retired Justice Chris Jafta, is so wide of the mark, misconceived and inappropriate that it can best be regarded as a stratagem in a scheme of delaying tactics rather than as a serious complaint.’
The Public Protector’s lawyers have written to the Registrar of the Constitutional Court to ask if it is true that the apex court will this week refuse her application to reverse an earlier judgment against her regarding her impeachment legal battle, reports SowetanLIVE.
The Competition Commission is taking its bid to prosecute Group Five for allegedly being part of a construction cartel that rigged tenders for Fifa 2010 World Cup stadiums to the Constitutional Court.
Co-operative Governance & Traditional Affairs Minister, Dr Nkosazana Dlamini-Zuma, yesterday warned government could declare a State of Disaster again should Covid-19 infections spiral.
KZN Premier Sihle Zikalala has suggested ‘a debate’ about whether Parliament should not be above the Constitutional Court so that policies adopted by Parliament cannot be overridden.