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 allowed a man, left mentally incapacitated after a 2010 accident, to claim for compensation from the Road Accident Fund (RAF) even though the application was lodged well past the deadline.
Recently retired Chief Justice Mogoeng Mogoeng yesterday criticised President Cyril Ramaphosa's administration's handling of the Covid-19 pandemic and accused the government of interfering with citizens' fundamental rights in its fight against the deadly virus.
The controversial issue of mandatory workplace vaccinations will survive constitutional scrutiny, according an expert in labour and constitutional law.
A farmworker has triumphed at the Constitutional Court over his former employer who evicted him without notice after 21 years of service.
The Constitutional Court has reserved judgment in an application for the right to bury the remains of a foetus.
SA universities have entered the contested discourse of whether to mandate the Covid-19 vaccine for the safe return of students and staff to campuses or not.
Private hospital groups Mediclinic and Life Healthcare have introduced Covid-19 vaccination policies for staff and service providers, joining a steadily growing number of JSE-listed companies that have followed the lead of life and health insurer Discovery.
Earlier this month, the Australian High Court – the equivalent of our Constitutional Court – ruled that newspapers and broadcasters may be responsible for comments on their Facebook pages posted by members of the public.
The Constitutional Court has dismissed former Finance Minister Trevor Manuel's application for leave to appeal against the SCA dismissal of a ruling that the EFF pay him R500 000 in damages and apologise to him.
The Constitutional Court has declared section 10 of the Births and Deaths Registration Act – which does not allow an unmarried father to register his child's birth under his surname, unless the mother is present or gives consent – unconstitutional.
Buoyed by the two dissenting voices on the Constitutional Court Bench – and despite a majority of nine confirming the court will not backtrack on its decision to send Jacob Zuma to jail for his ‘egregious’ contempt – the former President’s legal team is taking his battle with the Constitutional Court over his incarceration to the African Court on Human and Peoples Rights.
In a judgment noting that 'litigation must at some point, come to an end,’ a majority of the Constitutional Court Bench of nine judges on Friday dismissed with costs of two counsel former President Jacob Zuma’s application for a rescission of its July judgment, which ordered his jailing for 15 months.
Constitutional Court agreed in its majority decision that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act was overbroad.
The Constitutional Court has dismissed former president Jacob Zuma's application to have the contempt of court judgment against him rescinded. In its majority judgment on Friday, the apex court ruled that Zuma had not met the requirements of a rescission application.
The Helen Suzman Foundation (HSF) has launched a court application to declare that Correctional Services Department head Arthur Fraser’s decision to grant former President Jacob Zuma medical parole is unlawful and be set aside.
Without having spent any time in a cell, former President Jacob Zuma has been granted medical parole, approved by his associate and former spy boss, Arthur Fraser.
The vaccination card, which the government doesn’t want referred to as a vaccination passport, will not deprive people of their basic human rights, Health Minister Joe Phaahla reportedly told News24 yesterday.
The outcome of the case between the City of Cape Town and advocacy group Ndifuna Ukwazi about homeless people in Green Point has been postponed to tomorrow after Acting Judge Tessa le Roux said she needed more time to read the relevant documents and consider arguments.
'It is unclear why Public Protector Busisiwe Mkwhebane and her lawyers decided to ask the Constitutional Court to rescind its recent judgment setting aside one of her reports, given the fact that the application relies on false claims and contradicts an admission she previously made under oath. Does it reflect disdain for the Constitutional Court and, perhaps, also for the overriding ethical duty of lawyers not to mislead the court?’
In an unprecedented move, President Cyril Ramaphosa wants the Constitutional Court to order the NPA to investigate Public Protector Busisiwe Mkhwebane’s conduct in compiling the report that accused him of deliberately misleading Parliament over a donation from disgraced firm Bosasa.