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
A legal battle between Telkom and the City of Cape Town over a tower – which the partly state-owned telecommunications giant maintains it needs for improved coverage – is headed to the Constitutional Court.
The Gauteng High Court (Pretoria) has dismissed former Public Protector COO Basani Baloyi’s urgent challenge to her sacking, which she argued was driven by ulterior and politically motivated purposes, notes a BusinessLIVE report.
The Constitutional Court held yesterday that the doctrine of common purpose applied to the common law crime of rape. It made the finding in dismissing an appeal by two men who were convicted of rape 20 years ago under the doctrine of common purpose.
Recently-retired head of the AFU Willie Hofmeyr’s call in favour of ‘clipping the presidential wings’ from the present position where senior appointments in the NPA are the ‘unqualified’ business of the President – is taken up by Accountability Now’s Paul Hoffman SC.
The anonymity of child victims or perpetrators of crime should remain beyond the age of 18, unless they consent to revealing their identity after they have reached adulthood. The Constitutional Court made this provisional order yesterday as it extended the protection of anonymity to child victims, witnesses and perpetrators of crime, says a TimesLIVE report.
The Public Investment Corporation (PIC) yesterday told MPs it is filing a court application to force Steinhoff to release the PwC forensic report the company has withheld on the grounds of confidentiality, reports BusinessLIVE.
‘Few legal provisions have given our courts more trouble to interpret and apply than section 10 of Pepuda. Different courts have given wildly different interpretations of this hate speech provision. No wonder then that the SCA complained last week in Qwelane v SAHRC and Others that section 10(1) of Pepuda was ‘‘barely intelligible’’.’
It is important for the Constitutional Court to give a proper interpretation of the law arising from the case of former diplomat Jon Qwelane's opinion on same-sex marriage, a legal expert is quoted as saying in a News24 report.
The vice-chancellor of Stellenbosch University, Professor Wim de Villiers, has been cleared of alleged attempts to interfere in a Constitutional Court case related to the university's 2016 language policy, says a News24 report.
Although Public Protector Busisiwe Mkhwebane’s appearance in the Constitutional Court this week may appear to be yet another installment in her battle, backed by the EFF, with President Cyril Ramaphosa and Pravin Gordhan, this particular hearing is ‘hugely important’.
Landowners are largely responsible for the violence that usually accompanies the unlawful occupation of their land, EFF leader Julius Malema claims in documents filed at the Constitutional Court.
President Cyril Ramaphosa’s lawyers have hit out at Public Protector Busisiwe Mkhwebane and the EFF for comparing him to former President Jacob Zuma – and insist that, unlike Zuma, Ramaphosa has never sought to ‘second guess’ the Public Protector.
Prosecutors in Jacob Zuma’s corruption case have criticised the former President’s bid to appeal against last week’s ruling dismissing his attempt to have charges against him dropped permanently, saying an appeal is doomed to fail.
Judgment was reserved in the Western Cape High Court yesterday in what a News24 report describes as a potential landmark case involving the voices of children being heard in court cases.
In 1998, 41 Eastern Cape families lodged a massive land claim – which includes tourist and citrus farming towns. However, a Daily Dispatch report says they are yet to receive any feedback on the status of their claim.
A significant number of public schools which have been disadvantaged by the country’s colonial and apartheid past continue to operate under conditions of extreme deprivation.
Public Protector Busisiwe Mkhwebane’s attempts to back out of a potentially bruising Constitutional Court showdown over the legal limitations of her powers have failed.
The Constitutional Court has dismissed President Cyril Ramaphosa's application for leave to appeal a High Court judgment that the President is obliged to disclose the reasons, and a record of decision, when firing a Minister or Deputy Minister.
The common-law defence of reasonable chastisement can no longer be used when spanking a child, the Constitutional Court ruled yesterday. TimesLIVE says the court's upholding of a ruling by the High Court to do away with the defence comes at a time when violence against women and children has been a burning issue.
Public Protector Busisiwe Mkhwebane's instruction to the NPA to investigate money laundering in President Cyril Ramaphosa's ANC presidential campaign ‘infringes the constitutional and statutory mandate of the NPA’, NDPP Shamila Batohi will argue in a supporting affidavit to Ramaphosa's review application of Mkhwebane's Bosasa funding report, notes Legalbrief.