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 confirmed yesterday that section 1 of the Land Affairs General Amendment Act and section 25A of the Upgrading Act was inconsistent with the Constitution and invalid.
In a matter that has spurred heated debate on the doctrine of common purpose in rape cases, two men convicted on eight counts of rape are looking to overturn their sentences and convictions in the Constitutional Court.
Lawyers for sacked Deputy NDPP Nomgcobo Jiba and have urged National Assembly Speaker Thandi Modise to stop the parliamentary process to remove her from office in line with the Mokgoro Commission report until the review application by Jiba is concluded in the High Court.
The Constitutional Court has dismissed an appeal by Uitsig High School against Western Cape Education MEC Debbie Schäfer’s decision to close it, says an EWN report.
Convicted wife killer Rob Packham has based his SCA application to appeal his conviction on the police’s ‘manifestly unjust’ national photo identification system, which he charges is ‘startling in its application’, says a report on The Citizen site.
The conviction of former crime boss Richard Mdluli after many years of legal delays was an important vindication of the rule of law, according to Freedom Under Law. TimesLIVE reports that the Freedom Under Law welcomed the conviction by the Gauteng High Court (Johannesburg) on Tuesday on counts of kidnapping, assault with intent to cause grievous bodily harm, and intimidation.
The Public Protector has agreed to put her remedial action against Public Enterprises Minister Pravin Gordhan on hold until the Gauteng High Court (Pretoria) rules on the Minister’s bid to interdict the remedial action outlined in her report into the SARS so-called ‘rogue unit’ pending a judicial review, notes Legalbrief.
Two gang members trying to overturn their numerous rape convictions could be the catalyst for a change in legislation that could see rape added to the list of ‘common cause’ crimes. The men were members of a gang that raped several women during a night-long crime spree in Tembisa in 1998.
The Gauteng High Court (Pretoria) has dealt another legal setback to EFF leader Julius Malema, dismissing his application to have the Riotous Assemblies Act declared unconstitutional. The charges of inciting trespassing, against Malema, remain in place, notes a TimesLIVE report.
The Constitutional Court has made an order prescribing the payment of interim maintenance, child care, and contact orders, says a Cape Times report. Ruling on an application by a father who challenged that the non-appealability of interim orders was unconstitutional, the apex court held – in a unanimous judgment – that the non-appealability was indeed constitutional, as it meant children’s rights were not infringed.
The Constitutional Court will hand down judgment at 10am tomorrow in a General Council of the Bar (GCB) application aimed at having axed deputy prosecutions boss, Nomgcobo Jiba, and her colleague, Lawrence Mrwebi, struck from the roll of advocates, notes a News24 report.
Former Eskom boss Brian Molefe is taking his R30m pension benefit battle to the Constitutional Court, according to Rapport.
Right-to-die activist Sean Davison made a plea and sentencing agreement yesterday which means he will not go on trial for three murders. The agreement, which entails three years of house arrest for the University of the Western Cape (UWC) academic, was approved by Western Cape Judge President John Hlophe, reports TimesLIVE.
While section 25 of the Constitution explicitly rejects market-based approaches to compensation for land reform, its formula is imprecise, using the term ‘just and equitable’ compensation. Yet, says Advocate Tembeka Ngcukaitobi, section 25 is not self-executing.
Two men serving life terms for gang rapes in 1998 have launched an application aimed at forcing the state to expunge laws that allow conviction of those present at rape scenes. The Star reports Jabulane Tshabalala and Annanius Ntuli were found guilty of multiple counts of common law rape after being part of a group of youngsters who went on a rampage in Tembisa.
A 16-year-old Johannesburg schoolboy should never have been jailed after testing positive for cannabis during a school drug test, a court has found, according to the Sunday Times. Instead, the pupil from a school on Johannesburg’s West Rand spent more than two months in a juvenile corrections centre.
The Constitutional Court has been asked to decide how much emphasis should be placed on the best interests of children when private schools are terminating a contract with the children’s parents which ultimately leads to the children being expelled, says a Daily Maverick report.
Even if the Chicken Licken advert were offensive, regulators should allow it to air in a democratic, open and tolerant society. A Times Select report says this is the latest argument in the protracted legal battle to have the ‘colonialism’ advert unbanned.
While the Centre for Child Law argues that when child offenders, witnesses or victims are named by the media before and after the age of 18 it harms them, media houses say there should not be an open ban on the identification of any children involved in criminal cases.
Individuals not affiliated to any political party who want to contest general elections will possibly only get a chance in 2024, if the Constitutional Court finds that sections of the Electoral Act barring them from doing so is unconstitutional, notes a Business Day report.