Introduction to Constitutional Law (LCON 1523)

Defining the Constitution and Its Role in Governance

• Conceptual Definition of a Constitution:

  • The Constitution (C) serves as the founding document of a nation.

  • The State derives its legal and political authority directly from this document.

  • It provides the structural framework for the government.

  • It regulates the exercise of power by the elected branches of government (Executive and Legislature) and the Judiciary.

  • It places specific limits on the exercise of governmental power.

  • It provides the fundamental rules according to which the country must be administered and run.

• Nature of Constitutional Law:

  • Constitutional law is often described as the most political branch of law.

  • It requires study within global and historical contexts, as well as current social, economic, and political realities.

  • A Constitution can be described as a ‘snapshot’ of the specific time of its writing; however, it is also considered a ‘living document’ that evolves.

Historical-Legal Context of South Africa

• Foundational Periodization:

  • South African constitutional history is frequently cited as beginning in $1910$, when the South African state was created in its present form through the Union of South Africa.

  • The Union of South Africa was brought into being when the British Parliament passed the Union of South Africa Act of $1909$.

• Pre-Colonial Realities:

  • Ascribing the start of history to $1910$ ignores the fact that the Khoisan already occupied the western parts of the country, while agro-pastoralists occupied the large eastern portion.

  • Reasons for using colonial markers:

    • Pre-colonial history was not formally written down.

    • There is insufficient clarity regarding the specific governing structures of pre-colonial indigenous peoples.

    • South Africa’s current legal borders were formally established in $1910$.

Pre-Union Developments ($17^{​th}$ Century to $1910$)

• Colonial Cape and Natal (Westminster System):

  • Governance in these regions mirrored other British colonies, utilizing the Westminster System.

  • This system established the principle of the supremacy of the legislature (Parliament).

  • The courts possessed no power to test the validity of these laws.

• The Boer Republics (Mid-$19^{​th}$ Century):

  • The Orange Free State (OFS) and the South African Republic/Transvaal Republic emerged during this time.

  • These republics rejected the Westminster system.

  • Theoretical Influences: Governance was influenced by systems in the USA, France, and the Netherlands.

  • Governance Principles: They embraced the principle of separation of power and featured directly elected presidents.

  • Judicial Power: Courts in these republics could challenge laws.

  • Orange Free State Constitution of $1854$:

    • Contained rigid rules for amendment.

    • Included a Bill of Rights (BoR) guaranteeing the right to peaceful assembly, petition, property, and equality before the law.

    • Limitation: Rights were strictly limited to white males.

  • Transvaal Constitution of $1858$: This document was also noted for being racially biased.

Indigenous Governance and the Impact of Colonialism

• Traditional Governance Structures:

  • Parts of South Africa not under colonial rule had various indigenous governance forms based on chiefdoms.

  • The Chief was vested with secular power and granted specific privileges.

  • The Chief’s role included adjudicating disputes fairly and providing for the well-being of the people through the application of customary law.

  • Constraints on Power: Power was not unlimited; the Chief had to consult with councillors and act for the benefit of the people.

• The Zulu Kingdom:

  • Modification of governance structures began under the reign of Dingiswayo.

  • King Shaka seized power after Dingiswayo’s death, unifying various chiefdoms.

  • Shaka built a mighty military force by incorporating defeated troops.

  • This centralization of authority weakened traditional kinship and the powers of elders.

• Colonial Expansion and Disenfranchisement:

  • The Glen Grey Act of $1894$ (Cape Colony):

    • Excluded the vast majority of Africans from Parliament.

    • Weakened the power of chiefs by replacing them with government-appointed district councillors.

    • Introduced separate reserve areas where Africans were required to stay when not working in white-owned industries.

    • Considered a forerunner of segregation and apartheid.

  • Langden Commission ($1903$):

    • Formally known as the Native Affairs Commission.

    • Developed a vision for a future South African union based on the segregation of black and white populations.

    • Endorsed the practice of creating ‘native reserves’ where indigenous peoples had special rights based on ancestral land tenure.

    • Set the stage for a ‘bifurcated state’.

The Union of South Africa ($1910$)

• The South Africa Act (Union Constitution):

  • Formed following the British victory over the Boers in the Anglo-Boer War ($1899$-$1902$).

  • Brought together four colonies: Cape, Natal, Orange Free State, and Transvaal, along with various indigenous groupings.

  • Democratic Structure: Granted Parliamentary democracy to the white minority while subjecting the black majority to autocratic administrative rule.

  • Governance Style: Adopted the Westminster style of Parliamentary supremacy.

• Legislative Structure:

  • House of Assembly: Directly elected by a limited number of males with the right to vote.

  • Senate: Partly indirectly elected by the House of Assembly and partly nominated.

• State Structure: A unitary state where former colonies became provinces with equal representation in the Senate.

• Restraints on Power:

  • Laws could not be made in conflict with British laws.

  • Certain ‘entrenched clauses’ in the Union Constitution required special procedures for amendment.

Legal Mechanisms of Racial Suppression ($1927$ - $1959$)

• Black Administration Act of $1927$: Reaffirmed the rule of chiefs in reserves but made them subordinate to the Governor-General, who was the ‘supreme chief,’ with powers to divide tribes and appoint chiefs at will.

• Bantu Authorities Act of $1951$: Accelerated the system of indirect rule.

• Promotion of Bantu Self-Government Act of $1959$: Created ‘homelands’ where Africans were expected to exercise their political aspirations apart from the central state.

• Disenfranchisement of Coloured Voters:

  • The National Party (NP) won the $1948$ election.

  • In $1951$, they attempted to remove Coloured voters from the common roll.

  • This was initially unsuccessful but succeeded in $1957$.

• Limitation of Judicial Review: The South Africa Amendment Act of $1958$ prohibited any court from pronouncing on the validity of an Act of Parliament.

The Republic of South Africa ($1961$) and the Tricameral System

• The $1961$ Constitution:

  • Following a $1960$ referendum to break from Britain and become a Republic under NP rule.

  • Confirmed the supremacy of Parliament.

  • Section 59 of the RSA Constitution Act:

    1. Parliament is the sovereign legislative authority with full power to make laws for peace, order, and good government.

    2. No court of law functions as competent to enquire into or pronounce upon the validity of any Act of Parliament, except for Acts repealing or amending Sections $108$ or $118$.

• The $1983$ Constitution (Reform and Tricameralism):

  • Prime Minister PW Botha attempted to reincorporate ‘Indian’ and ‘Coloured’ people into the system.

  • Created three houses of Parliament (one for each recognized ethnic group).

  • Houses dealt with ‘own affairs’, but power remained with the NP.

  • Control Mechanisms:

    • Government centralized in the President (final say).

    • Decisions resolved by a $4:2:1$ ratio (favoring white representation).

• Turning Point ($1990$): President FW de Klerk lifted restrictions on the ANC, PAC, and SACP and ordered the release of Nelson Mandela.

Transition to Democracy

• Judicial Description of the Transition:

  • The Certification of the Constitution of the Republic of South Africa, 1996 (First Certification judgment) described the era as a move from a ‘deeply divided society characterized by strife, conflict, untold suffering and injustice’ to a negotiated commitment to a new constitutional order based on universal human rights.

• Historical Timeline of Resistance:

  • $1912$: Official formation of the ANC.

  • $1952$: Drafting of the Freedom Charter.

  • $1960$: Sharpeville Massacre.

  • $1963$ & $1964$: Rivonia Trials.

  • $1976$: Soweto uprising (influenced by the Black Consciousness Movement).

  • $1976$-$1990$: ANC focused on labor movements (COSATU) and the United Democratic Front (UDF).

  • $1980s$: UDF activities leading to a state of emergency.

  • $Mid-1980s$: Secretive talks begin between the NP and ANC.

  • $1989$: FW de Klerk becomes President.

  • $1990$: Formal unbanning of parties and release of prisoners.

The Two-Stage Transition Process

• CODESA (Congress for a Democratic South Africa):

  • Convened in late $1991$ to draft the Interim Constitution (IC).

  • Declaration of Intent (21 December 1991): Defined a united, democratic, non-racial, and non-sexist state where the Constitution is supreme and guarded by an independent judiciary.

• MPNF (Multi-Party Negotiation Forum):

  • Replaced CODESA in $1992$ after the ANC walked out over slow progress.

  • Adopted the Interim Constitution ($1993$) before ratification by the apartheid Parliament.

• The Compromise:

  • A two-stage transition was chosen because negotiating parties were unelected and didn't have a mandate to draft the final document.

  • Stage 1: Unelected parties at MPNF negotiated the Interim Constitution (IC).

  • Stage 2: A democratically elected Constitutional Assembly (CA) drafted the Final Constitution (FC).

Comparison: Interim Constitution vs. Final Constitution

The 34 Constitutional Principles (CPs)

• The First Certification judgment outlined the structure of these principles:

  • (a) Constitutional democracy and supremacy of the Constitution.

  • (b) Openness, accountability, equality, universal adult suffrage, and regular elections.

  • (c) Separation of powers between the legislature, executive, and judiciary with checks and balances.

  • (d) Functional checks on governmental power.

  • (e) Justiciable universally accepted fundamental rights and freedoms.

  • (f) One sovereign state with national, provincial, and local levels.

  • (g) Recognition and protection of traditional leadership.

  • (h) Equality before the law, including the amelioration of conditions for the disadvantaged.

  • (i) Representative government with a multi-party system and proportional representation.

  • (j) Protection of the Constitution from amendment except via special processes.

  • (k) Fiscal allocations for provincial and local government.

  • (l) Rights to collective bargaining and fair labor practices.

  • (m) Non-partisan, representative public service.

  • (n) Security forces operating in the national interest, prohibited from party politics.

Adoption and Certification of the 1996 Constitution

• Drafting: The ANC won the $1994$ election but lacked the required $2/3$ majority to draft the C alone. The Constitutional Assembly passed the C with $2$ ‘no’ votes and $10$ abstentions.

• First Certification Judgment: The CC found the text complied with structural requirements but failed to satisfy all $34$ CPs.

• Second Certification Judgment (December 1996): After the CA reassembled and amended the text, the CC certified the C as being in line with all $34$ Constitutional Principles.

• Enactment: Signed by President Nelson Mandela on $10 December 1996$. It came into effect on $4 February 1997$.

Core Features of the 1996 Constitution

• Transformative Nature: Aims to transform society from a legacy of racial inequality to one based on democracy, social justice, equality, dignity, and freedom.

• Founding Values (Section 1):

  • Human dignity, achievement of equality, and advancement of human rights.

  • Non-racialism and non-sexism.

  • Supremacy of the Constitution and the Rule of Law.

  • Universal adult suffrage, common voters roll, regular elections, and a multi-party democratic system.

• Constitutional Supremacy vs. Parliamentary Supremacy:

  • The Constitution is the supreme law; any law or conduct inconsistent with it is invalid.

  • The Constitutional Court is at the apex as the guardian of the C.

  • Separation of powers creates three distinct branches of government.

  • Recognizes the role of traditional leaders and customary law.

• Specific Transformative Elements:

  • Substantive concept of equality and inclusion of social rights.

  • Affirmative state duties and the concept of horizontality.

  • Participatory governance and multiculturalism.

  • Historical self-consciousness.