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Constitution
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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 10 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993.[1]
Since 1996, the Constitution has been amended by sixteen amendment acts. It 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,[2] 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 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.[3][4]
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.[3] 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,[4] which would effectively have given it a veto.[3]
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.[4] 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 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.[3] On 8 May 1996, a new text was adopted with the support of 86 per cent of the members of the assembly,[4] but in the First Certification judgment, delivered on 6 September 1996, the Constitutional Court refused to certify this text, identifying a number of provisions that did not comply with the constitutional principles.[5]
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.[6] 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 sixteen times; these amendments are described in a separate section below.
The constitution consists of a preamble, fourteen chapters containing 244 sections,[7] and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.
"We, the people of South Africa,Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to —
- Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
- Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
- Improve the quality of life of all citizens and free the potential of each person; and
- Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
Mudzimu fhaṱutshedza Afurika. Hosi katekisa Afrika."
God seën Suid-Afrika. God bless South Africa.
Chapter 1 enshrines in the constitution key national principles, defines the country's flag and national anthem, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. The chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution.
Chapter 2 is a bill of rights which enumerates the civil, political, economic, social and cultural human rights of the people of South Africa. Most of these rights apply to anyone in the country, with the exception of the right to vote, the right to work and the right to enter the country, which apply only to citizens. They also apply to juristic persons to the extent that they are applicable, taking into account the nature of the right. The rights enumerated are:
Section 36 allows the rights listed to be limited only by laws of general application, and only to the extent that the restriction is reasonable and justifiable in "an open and democratic society based on human dignity, equality and freedom."[10]
Section 37 allows certain rights to be limited during a state of emergency but places strict procedural limits on the declaration of states of emergency and provides for the rights of people detained as a result.
Chapter 3 deals with the relationships between organs of government in the three "spheres" — national, provincial and local. It lays down a set of principles requiring them to co-operate in good faith and to act in the best interests of the people. It also requires them to attempt to settle disputes amicably before resorting to the courts.
Chapter 4 defines the structure of Parliament, the legislative branch of the national government. Parliament consists of two houses, the National Assembly (the lower house), which is directly elected by the people, and the National Council of Provinces (the upper house), which is elected by the provincial legislatures.
The Chapter defines the principles governing the election and dissolution of the houses, qualifications for membership of Parliament, quorum requirements, procedures for the election of presiding officers, and the powers and privileges and immunities of Parliament and its members. It lays down the process for enacting bills into law; different procedures are provided for constitutional amendments, ordinary bills not affecting provincial matters, ordinary bills affecting provincial matters, and money bills.
Chapter 5 defines the structure of the national executive and the powers of the President. It provides for the election and removal of the President by the National Assembly, and limits a President to two five-year terms. It vests in him or her the powers of the head of state and head of government; it provides for the appointment of a Cabinet by the President; and it provides for the accountability to Parliament of the President and Cabinet.
Chapter 6 establishes the nine provinces of South Africa and defines the powers and structure of the provincial governments. The boundaries of the provinces are defined by reference to Schedule 1A to the Constitution, which refers in turn to the boundaries of the metropolitan and district municipalities.
In some respects, the chapter is a template which a province may modify to a limited extent by adopting its own provincial constitution. (The only province so far to have done this is the Western Cape.) The chapter provides for a unicameral legislature, a Premier elected by the legislature as head of the provincial executive, and an Executive Council appointed by the Premier as a provincial cabinet.
The provincial government is given exclusive powers over certain matters, listed in Schedule 5, and powers concurrent with the national government over other matters, listed in Schedule 4. The chapter regulates the conflict between national and provincial legislation on the same topic, setting out the circumstances under which one or the other will prevail.
Chapter 7 sets out a framework for local government. It requires municipalities to be established for the whole territory of South Africa, and provides for three categories of municipalities, whereby some areas are governed by a single "Category A" municipal authority and others are governed by a two-level system with a larger "Category C" municipality containing multiple "Category B" municipalities. The municipalities are granted the power to administer certain matters listed in Schedules 4 and 5, and the executive and legislative authority is vested in the municipal council. The chapter requires municipal elections to be held every five years.
Chapter 8 establishes the structure of the judicial system. It defines the hierarchy consisting of Magistrates' Courts, High Courts, the Supreme Court of Appeal, and the Constitutional Court. It provides for the appointment of judges by the President on the advice of the Judicial Service Commission and establishes a single National Prosecuting Authority responsible for all criminal prosecutions.
Chapter 9 creates a number of other commissions and offices to protect and support democracy and human rights. These are the Public Protector (an ombudsman), the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Independent Electoral Commission and the Independent Communications Authority.
Chapter 10 lists values and principles for the administration of the civil service and establishes the Public Service Commission to oversee it.
Chapter 11 establishes structures for civilian control of the Defence Force, the Police Service and the intelligence services. It makes the President the Commander-in-Chief of the defence force but places conditions on when and how it may be employed and requires regular reports to Parliament. The police service is placed under the control of the national government but gives provincial governments some power to administer and oversee policing.
Chapter 12 recognizes the status and authority of traditional leaders and customary law, subject to the Constitution. It allows for the creation of provincial houses of traditional leaders and a national council of traditional leaders.
Chapter 13 deals with public finance. It establishes a National Revenue Fund, from which money may be appropriated only by an act of Parliament, and Provincial Revenue Funds, from which money may only be appropriated by an act of the provincial legislature. It provides for an equitable distribution of national revenue to the provinces and municipalities, and grants provincial and local governments the powers to raise certain rates and taxes. It requires effective and transparent budgeting at all levels of government and gives the National Treasury the power to oversee budgetary processes. It places some restrictions on government procurement and government borrowing. The chapter establishes the Financial and Fiscal Commission, to advise government on financial matters, and the Reserve Bank, to oversee the currency.
The final chapter deals with transitional and incidental provisions. In particular, the first part deals with international law, providing that existing agreements binding South Africa will continue to bind it, and that new agreements (except those of a technical nature) will only be binding once approved by Parliament. It also provides that customary international law applies in South African unless it conflicts with national law, and that the courts must, where possible, interpret national law to be consistent with international law.
The remainder of the chapter contains a miscellaneous collection of provisions,
Chapter 14 also repeals the Interim Constitution and refers to Schedule 6 to govern the process of transition to the new constitution. Finally, it gives the Constitution its formal title, "Constitution of the Republic of South Africa, 1996," and defines the schedule for its commencement, under which the President set the date of commencement for most sections, although certain sections dealing with financial matters commenced only on January 1, 1998.
Section 74 of the Constitution provides that a bill to amend the Constitution can only be passed if at least two-thirds of the members of the National Assembly (that is, at least 267 of the 400 members) vote in favour of it. If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the country's founding values, would require the support of three-quarters of the members of the National Assembly. There have been sixteen amendments since 1996.
The First Amendment was promulgated on 29 August 1997, but was deemed to have been in force since the commencement of the constitution on 4 February. It provided that a person appointed as Acting President need not swear the oath of office again if he or she had previously served as Acting President and sworn the oath, and allowed the President of the Constitutional Court to designate another judge to administer the oath of office to the President or Acting President instead of administering it personally. It also extended the cut-off date for deeds which could be considered for amnesty by the Truth and Reconciliation Commission to 11 May 1994, instead of 6 December 1993.
The Second Amendment was promulgated and came into force on 7 October 1998. It extended the terms of office of municipal councils from four to five years, and modified the schedule for the transformation of local government. It allowed the nomination of alternate members of the Judicial Service Commission to replace unavailable members, allowed Parliament to assign additional powers to the Public Service Commission, and renamed the Human Rights Commission the South African Human Rights Commission.
The Third Amendment was promulgated and came into force on 30 October 1998. It allowed the demarcation of cross-boundary municipalities: municipalities partly in one province and partly in another. The changes it made were repealed by the Twelfth Amendment.
The Fourth and Fifth Amendments were promulgated and came into force on 19 March 1999. They clarified that elections to the National Assembly and the provincial legislatures may be called either before or after the term of office of the previous Assembly or legislature has expired. The Fourth Amendment also modified the formula for the allocation to parties of seats in the National Council of Provinces, and the Fifth Amendment allowed the chairperson and deputy chairperson of the Financial and Fiscal Commission to be part-time members. The two amendments were passed as separate acts because of the special requirements for amendments affecting provincial powers which applied to the provisions of the Fourth Amendment but not to those of the Fifth.
The Sixth Amendment was promulgated and came into force on 21 November 2001. It altered the titles of the senior judicial officers: The Chief Justice became President of the Supreme Court of Appeal, while the President of the Constitutional Court became Chief Justice of South Africa; their deputies were similarly renamed. The amendment also allowed an Act of Parliament to extend the term of office of a Constitutional Court judge, permitted the President to appoint two Deputy Ministers from outside the National Assembly and extended the powers of municipal councils to raise loans.
The Seventh Amendment was promulgated on 14 December 2001, but only came into force on 26 April 2002, except for provisions relating to the Financial and Fiscal Commission which came into force on 1 December 2003. It made various amendments relating to the passage of financial legislation and the financial relationship between the provincial and national governments.
The Eighth and Ninth Amendments were promulgated and came into force on 20 June 2002. The Eighth Amendment allowed members of municipal councils to cross the floor, that is, to move from one political party to another without losing their seats. The Ninth Amendment provided for the re-allocation of seats in the National Council of Provinces after floor-crossing in provincial legislatures.
The amendments were passed simultaneously with the Loss or Retention of Membership of National and Provincial Legislatures Act,[11] an ordinary act of Parliament which purported to permit floor-crossing in the National Assembly and the provincial legislatures; it was, however, declared unconstitutional by the Constitutional Court. Parliament then re-enacted its provisions as the Tenth Amendment, which was promulgated on 19 March 2003 and came into force on the following day.
The Eighth, Ninth and Tenth Amendments were effectively repealed by the Fourteenth and Fifteenth Amendments.
The Eleventh Amendment was promulgated on 11 April 2003, and came into force on 11 July of that year. It renamed the Northern Province to Limpopo Province. It also modified the procedure for national government intervention in dysfunctional provincial governments and expanded the powers of provincial governments to intervene in dysfunctional municipalities.
The Twelfth Amendment was promulgated on 23 December 2005, and came into force on 1 March 2006. It redefined the boundaries of the provinces in terms of the district and metropolitan municipalities, and repealed the provisions inserted by the Third Amendment which allowed for cross-boundary municipalities. As a result, many provincial boundaries were altered; the only provinces not affected were the Western Cape and the Free State.
Many of the communities affected by the boundary changes objected to the result. The people of Matatiele, which had been transferred from KwaZulu-Natal to the Eastern Cape, challenged the amendment before the Constitutional Court, which ruled that the KwaZulu-Natal Legislature had not allowed for the necessary public participation before approving the amendment. The court's order was, however, suspended for eighteen months, and Parliament re-enacted the changes, with the necessary public participation, as the Thirteenth Amendment, which was promulgated and came into force on 14 December 2007.
The people of Khutsong, which was transferred from Gauteng to the North West, also strenuously opposed the change, through protests and boycotts. In 2009, the Sixteenth Amendment transferred Merafong City, which contains Khutsong, back to Gauteng.
The Fourteenth and Fifteenth Amendments were promulgated on 9 January 2009 and came into force on 17 April of that year, shortly before the general election. They repealed the floor-crossing provisions added by the Eighth, Ninth and Tenth Amendments, making it impossible for a legislator to cross the floor without losing his or her seat. They were passed as separate acts because of the special requirements for amendments affecting provincial powers.
The Sixteenth Amendment was promulgated on 26 March 2009 and came into force on 3 April. It transferred the Merafong City Local Municipality from North West province to Gauteng, reversing a change made by the Twelfth Amendment.
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