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Constitutional Law

Constitutional Law


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.

Negotiations

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.

Interim Constitution

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.

Final text

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 Constitutional Law Articles posted

Banks sued for R60bn over home repossessions

More than 225 applicants, mostly from Gauteng townships, have launched a suit in the Constitutional Court, claiming damages from the big banks for home repossession abuse. A GroundUp report says the applicants are claiming R60bn from the banks for unlawful repossession of homes since the Constitution came into effect in 1994.


Widow threatens to sue over doctor's Mandela book

Former President Nelson Mandela’s widow, Graça Machel, has threatened to sue Mandela’s doctor Vejay Ramlakan over his newly released book, Mandela’s Last Years, according to a City Press report. Ramlakan reportedly details Mandela’s last years, including intimate moments prior to his death. Machel has slammed the book, saying it is degrading and tarnishes the image of the struggle icon.


ConCourt's missed opportunity to enhance Esta

The Constitutional Court’s decision in Baron and others v Claytile (Pty) Limited and Another is a missed opportunity to enhance the usefulness of the Extension of Security of Tenure Act (Esta) as a tool that can enable farm dwellers to take control of their lives. The Act recognises that the farm dweller’s rights to live on commercial farmlands are precarious.


Evictions ruling seen as 'disaster' for rural occupiers

Former employees of a brick plant in Cape Town have lost their five-year battle to hold on to their farm homes, notes a TimesLIVE report. Yesterday the Constitutional Court said they should move 30km from Muldersvlei‚ near Klapmuts‚ to Wolwerivier‚ near Atlantis‚ which they argued is too far from their children’s schools and their workplace. A spokesperson for Lawyers for Human Rights‚ which represented the ex-employees‚ said the judgment was disappointing.


Evicting Your Troublesome Tenant: More Problems with PIE

Buy-to-let property can be an excellent investment. Just be sure that you take into account the possible difficulty, cost and delay of evicting a defaulting tenant – or indeed any unlawful occupier – who refuses to budge. The problem of course is that you have to keep on paying all your property expenses whilst the legal processes grind their way slowly, painfully and expensively through the courts.


Landmark ruling shoots down aspects of gun law

The Gauteng High Court (Pretoria) has declared two sections of the Firearms Control Act unconstitutional. According to a report on the IoL site, the sections deal with procedures that should be in place when surrendering a firearm for which the licence has already lapsed. In her groundbreaking judgment, Judge Ronel Tolmay ordered that all firearms issued in terms of the Act, which are or were due to be renewed, shall be deemed to be valid, until the Constitutional Court had spoken the last word on the subject.


Mkhwebane cannot order constitutional change

Public Protector Busisiwe Mkhwebane’s recommendation to amend the Reserve Bank’s constitutional mandate had nothing to do with her investigation into the apartheid-era Bankorp ‘lifeboat’, and was only aimed at stripping the Bank of its powers to maintain price stability, the bank said yesterday, according to a Business Day report. Bank Governor Lesetja Kganyago, applied to the Gauteng High Court (Pretoria) to review and set aside sections of Mkhwebane’s report on the lifeline granted to Bankorp, which Absa subsequently acquired.


Don't undermine Reserve Bank

SA should protect the independence of the Reserve Bank and must evaluate what effect the recommendations of the Public Protector to alter its mandate will have on the institution, Finance Minister Malusi Gigaba says, according to a BusinessLIVE report. ‘I respect the right of the Public Protector to make whatever determination but I also support fully the independence of the South African Reserve Bank,’ Gigaba said a Bloomberg Television interview in London.


Judgment ends 20-year limit on sex offences

Allegations of sexual assault can be pursued at any time and are no longer restricted to 20 years‚ the Gauteng High Court (Johannesburg) ruled yesterday, according to a TimesLIVE report. Eight alleged victims of the late philanthropist Sidney Frankel‚ who accused him of assaulting them when they were children‚ have won their case to change the law that limited sexual offences other than rape to a prescription period of 20 years.


Johannesburg battles to re-home illegal tenants

The City of Johannesburg will not be able to meet the Constitutional Court’s requirement to provide alternative accommodation to people evicted from illegally occupied buildings, because it simply does not have enough space. According to a Mail & Guardian Online report, Johannesburg Mayor Herman Mashaba said: ‘At the moment, we don’t have the capacity to accommodate people who would still be evicted.’


ConCourt ruling on evictions welcomed by LRC

The Legal Resources Centre has welcomed a Constitutional Court judgment which has implications for the conduct of courts in future evictions of occupiers, says a TimesLIVE report. The centre represented the Poor Flat Dwellers Association‚ a non-profit organisation formed in 2009 to resist the exploitation of flat dwellers‚ as a friend of the court in the case in which the Constitutional Court held that courts have an obligation to consider all relevant considerations before ordering an eviction‚ in cases where an unlawful occupier has apparently consented to his removal.


Judgment sets out courts' evictions obligations

Courts have an obligation to consider all relevant considerations before ordering an eviction‚ in cases where an unlawful occupier has purportedly consented to his removal. The Constitutional Court made this finding yesterday as it rescinded a 2013 order made by the High Court evicting 184 occupiers from a block of flats in Johannesburg. The decision has been described as momentous by the Socio-Economic Rights Institute (Seri)‚ which represented the occupiers, notes a TimesLIVE report.


SCA told Walus stripped of SA citizenship

The SCA, which is wrestling with an appeal against a Gauteng High Court (Pretoria) ruling in favour of bail for Chris Hani’s killer Janusz Walus, was told yesterday Walus had been stripped of his SA citizenship. ‘Representatives of the Department of Home Affairs confirmed it,’ Advocate Roelof du Plessis SC told Judges Christiaan van der Merwe, Jeremiah Shongwe, Mandisa Maya, Boissie Mbha and Ashton Schippers.


Another police vicarious liability case at ConCourt

The question of whether the Minister of Police can be held vicariously liable for a reservist in uniform who shot his girlfriend at dinner is to be heard by the Constitutional Court in August, according to a TimesLIVE report. Twice before the court has dealt with police criminality. In 2005 it held that the Minister was vicariously liable for the actions of three on-duty policemen who raped a stranded 20-year-old woman. And in 2011 the Minister was held vicariously liable for damages after the brutal rape of a 13-year-old by a policeman on standby duty.


Municipal debt issue argued in top court

The Constitutional Court was asked yesterday to confirm the Gauteng High Court (Pretoria) order last year that a new owner cannot be held liable for the water‚ rates and lights debts of the old owner or owners, notes a TimesLIVE report. The Tshwane and Ekurhuleni municipalities argue that the municipal debts belong to the property and municipalities can sell a house to recover the debt dating back up to 30 years.


Victims fight to change Criminal Procedure Act

The alleged sexual assault victims of the late philanthropist and stockbroker Sidney Frankel had their dignity violated by a section in the Criminal Procedure Act which prevents their complaints from being prosecuted after 20 years of the event. According to a TimesLIVE report, this is the view of Anton Katz SC‚ counsel for eight people who claim Frankel sexually assaulted them when they were between seven and 15 during the 1970s and 1980s.


ConCourt tackles women's rights in customary marriages

The Constitutional Court reserved judgment last week in a confirmation hearing on the Limpopo High Court’s decision in the matter of Ramuhovhi and Another v The President of the Republic of SA. A Fin24 report says his case concerns the validity of section 7(1) of the Recognition of Customary Marriages Act (RCMA). Section 7(1) of the RCMA regulates the proprietary consequences of polygynous marriages entered before the Act came into force in November 2000.


Judges focus on discrimination in schools religion case

If one majority religion is practised in school assemblies‚ then any pupil who asks to miss the assembly is forced to say they are different. Advocate Johan du Toit SC was pressed on this in the Gauteng High Court (Johannesburg) as he defended six Afrikaans schools’ right to promote a Christian ethos‚ including Bible readings, at assembly, notes a TimesLIVE report.


Date set for Zuma secret ballot hearing

The Constitutional Court has declared 15 May as the day it will hear the application by opposition parties UDM and the EFF to compel a parliamentary vote of no confidence in President Jacob Zuma to be conducted by secret ballot, says a BusinessLIVE report. Zuma has opposed the application‚ saying a ruling by the court to effectively force Speaker Baleka Mbete to allow MPs to vote in secret would subvert the rights of the ANC in Parliament.


Land reform Bill unconstitutional – FMF

The new land reform provisions contained in the Regulation of Agricultural Land Holdings Bill render the Bill unconstitutional and make it an exercise in redistribution rather than restitution as required by the Constitution, says the Free Market Foundation (FMF). In a statement yesterday, recorded on the Fin24 site, the Foundation said the Bill demonstrates government’s refusal to consider far more appropriate and effective measures to achieve land reform.





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