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
Agriculture, Land Reform & Rural Development Minister Thoko Didiza says she has ‘taken it to heart’ that she and others who have held the ministerial position ‘should have done more’ to exercise oversight of the Ingonyama Trust and its board.
Success for former President Jacob Zuma in his special plea in the KZN High Court (Pietermaritzburg) – in which he argues the NPA must be blocked from pursuing its racketeering, corruption and tax evasion case against him – would set a precedent that would undermine future NPA prosecutions, according to a legal expert.
The KZN High Court (Pietermaritzburg) has declared the Ingonyama Trust Board’s (ITB’s) residential lease programme unlawful and has ordered it to pay back millions it has collected from residents since 2012.
Peter Klaasen – who received a sentence of 12 years in jail theft in 2017 – has had his term reduced on appeal in the Western Cape High Court, after Acting Judge Mas-Udah Pangarker found the punishment to be ‘unjustifiably severe’.
Former President Jacob Zuma has demanded to be acquitted of arms deal corruption because the state has ‘lost the constitutional legitimacy to present the evidence against me’.
The impeachment rules formulated by Parliament were broader than what was allowed by the Constitution, introducing new grounds for impeaching the Public Protector ‘through the back door’, the Western Cape High Court heard yesterday when Busisiwe Mkhwebane launched her challenge to the constitutionality of Parliament’s new impeachment rules and to the process she is facing.
The recent Constitutional Court ruling in Mahlangu and Another v Minister of Police – which increased his damages award from R90 000 to R550 000 plus costs after finding that the police arrested him unlawfully and engineered a false murder confession through assault and torture – is taken up by UCT’s Associate Professor of Public Law, Richard Calland, who calls the whole case ‘a shameful litany of constitutional transgressions’.
The rules of Parliament prevent an impeachment process from going ahead against Public Protector Busisiwe Mkhwebane, according to her counsel, Dali Mpofu SC, in written argument to the Western Cape High Court.
Former President Jacob Zuma yesterday pleaded not guilty to all 16 charges stemming from the arms deal, and although he has forced a delay of at least two months, the NPA, which has found itself pushed onto the back foot by Zuma’s latest Stalingrad manoeuvre, will take some consolation from the fact he entered a plea – an event that for so long has seemed highly improbable.
Unisa has told the Constitutional Court of the range of impracticalities it would face if compelled to reinstate Afrikaans as a language of teaching and learning alongside English, according to a report in The Star.
Molefe Rufaro Mthulisi Dlodlo is taking on the justice system over the ‘discriminatory’ practice against self-representing litigants like himself.
Another law firm has dumped former President Jacob Zuma ahead of his Constitutional Court appeal against the personal costs order granted against him by the Gauteng High Court (Pretoria) in December 2017, says a report in The Sunday Independent.
Critics have asserted that the country is in crisis because the ANC has come to represent ‘neo-colonialism and neo-liberalism’. ‘They argue that the policy and practice of the supremacy of the Constitution and constitutional democracy in our country are exactly an expression of that neo-colonialism and neo-liberalism,’ writes former President Thabo Mbeki, in an analysis in Business Day.
A woman who was allegedly gang-raped by six men in 1981 is out to get justice in the form of payment, but the Prescription Act stands in her way, says a report in The Star.
Two companies majority-owned by troubled Gupta-linked firm Regiments Capital have 10 days to withdraw their more than R1.2bn lawsuit against Capitec Bank for fronting, unfair racial discrimination and grossly negligent and fraudulent material misrepresentation, says a Weekend Argus report.
Would-be parents have been given the right to bury the remains of a foetus, if they so wish, the Gauteng High Court (Pretoria) has ruled.
Parliament is rushing to finalise a version of the Traditional Courts Bill that continues to entrench a top-down, undemocratic approach to customary law.
President Cyril Ramaphosa has strongly defended the judiciary, saying attacks against it should not be taken lightly as they shake the foundation of SA’s constitutional democracy.
DA Chief Whip Natasha Mazzone has called on the Minister of Police, Bheki Cele, to clarify in which capacity he met with former President Jacob Zuma at Nkandla.
Former President Jacob Zuma’s no-show before the Zondo Commission was ‘a direct breach of the rule of law’ and also a denial of the constitutional rights of South Africans to hear the truth about State Capture, corruption and fraud under his administration from 2009 to 2018, says independent journalist and analyst Peter Fabricius.