It has a foundational mandate to heal the wounds of the past. This entails that the societal challenges can best be addressed using the supreme law in the Constitution, as the basis for societal transformation. The dispensation has had to embrace the notion of democracy, culture of human rights according to established international norms and standards, and uphold the rule of law.
While South Africa has made notable progress in many respects, the country faces new challenges that threaten the prospects of the TC. Hence, the survival of TC depends largely on the political will to address these challenges. It is also indispensable to propagate for citizenry education to foster active participation and understanding of democratic system for the sustenance of transformation ideals of the Constitution. DOI: Remember me.
To understand a constitution, since it concerns fundamental assumptions about the nature of the state, it must be read and seen in its historical context. South African constitutional law is no exception. The Constitution, given its transformative nature, emphatically demands attention to history and the existing socio-economic context when interpreting and applying its rules.
A full historical account of South Africa and the drafting of the Constitution is beyond the scope of this book [18]. However, the transformative nature of the Constitution makes history relevant in three ways. First, South Africa has undergone several constitutional changes in the past years [19]. Secondly, the Constitution was drafted deliberately and through a process of negotiation between various stakeholders in the early s.
Finally, until , South Africa operated on a legal system that oppressed and marginalised black people, while privileging white people, on a broad range of levels. These three points are important to bear in mind when, and have obvious relevance to, interpreting the Constitution.
The Constitution seeks to transform South African society on a broad range of levels. For example, section 1 establishes that South Africa is based on certain values that are diametrically opposed to those of the apartheid regime. The Constitution endorses a notion of substantive equality, which entails affirmative action being taken by the state to address existing inequalities between social groups [20].
The Constitution includes justiciable socio-economic rights, which allow citizens to challenge inequitable material conditions in court [21]. Transformative constitutionalism often includes an endorsement of justiciable socio-economic rights and substantive equality. It also endorses a form of legal reasoning that is conscious of the interplay between morality and law.
Transformative constitutionalism demands that lawyers are aware of how the law does and can play a role in affecting power relations, access to resources, and human dignity. Transformative constitutionalism demands all this because, at heart, it entails using law to ensure that society moves towards a better version of itself.
Quite clearly such a process involves grappling with fundamental moral and political ideas [22]. As explained at the start of this chapter, constitutional law is roughly divided into two parts: separation of powers and the Bill of Rights.
The book reflects this division. The next three chapters of the book detail the powers and duties of the three arms of government established by the Constitution: the legislature, executive, and judiciary. Chapter 5 deals with multi-level government. Multi-level government concerns the three spheres of the executive arm of the state: local, provincial, and national. Chapter 6 concerns special institutions established by Chapter 9 of the Constitution.
These institutions, like the Public Protector, occupy an interesting zone in the separation of powers. Chapter 9 institutions are not part of any arm of state and perform specialised functions. Simultaneously, they are held to account by the executive, legislature, and judiciary. Chapter 10 introduces the Bill of Rights.
The chapter begins with an introduction to the Bill of Rights and some general principles pertaining to the Bill of Rights. The six chapters after that deal with specific rights or groups of rights in the Bill of Rights.
A constitution is those sets of rules that establish a state. This may not entail a bill of rights. An act can be inconsistent with the Constitution if passing it exceeded the duties and powers imposed on the legislature by the Constitution. A country could be democratic even though there are certain rules constraining the will of the majority. The South African Constitution aims to transform South Africa away from its unequal past to a better society for all.
Two areas: Bill of Rights and separation of powers. Bill of rights: concerns the rights guaranteed to persons in Chapter 2 of the Constitution. Law and conduct may not violate these rights; if it does, that law or conduct is unconstitutional. Separation of powers: concerns the powers and duties given to arms of state by the Constitution.
Law and conduct of these arms cannot exceed the powers or violate the duties given to the arm in terms of the Constitution. Constitutional supremacy is the idea that no rule or conduct can be inconsistent with a constitutional rule. On the one hand, if a constitution limits the powers of a representative majority in parliament, then the will of the majority may be thwarted by a pre-existing constitutional rule.
On the other hand, if a majority can constantly overrule constitutional rules, then the constitution is hardly supreme. If the rules of the constitution can constantly be overridden by Acts of Parliament passed with a majority, the Constitution is effectively rendered meaningless. This could have implications for minority groups that are not represented by the majority in Parliament but whom a Constitution seeks to protect.
First, because the law is supreme, all public power must be exercised in terms of an empowering provision in a law. Third, the courts are responsible for enforcing the laws of a country. If all three conditions are met, then the rule of law is established within a state.
Section 1 c. It is when a constitution seeks to move a society towards a better version of itself instead of maintaining a status quo. Examples: section 1, the Constitution establishes that South Africa is based on values that are diametrically opposed to those of the apartheid regime. The Constitution endorses a notion of substantive equality, which entails affirmative action by the state to address existing inequalities between social groups.
The Constitution includes justiciable socio-economic rights, which allow citizens to challenge inequitable material conditions in court. Citizens vote directly on a political issue.
There are no political representatives for citizens. Section 17 of the Constitution guarantees the right to present petitions. Section 84 2 g envisages referenda at the discretion of the President. Citizens elect representatives who vote on political issues on behalf of citizens. Representatives are often organised into political parties. Various provisions relating to the National Assembly, such as proportional representation section Section 19, which links the right to vote to political parties.
Enhances representative democracy by allowing citizens to participate meaningfully in law-making in various ways. See Doctors for Life. The president signed all legislation, and also exercised administrative responsibility for black affairs. The Council comprised twenty members from the House of Assembly, ten from the House of Representatives, five from the House of Delegates, fifteen nominated by the president, and ten nominated by opposition party leaders.
This constitution lasted until the demise of apartheid in In , mounting international and domestic pressure, and, growing evidence and realization among the white political class that the apartheid system was unsustainable, forced the NP towards dismantling the system.
The first step was the lifting of the ban on political organizations - in particular the African National Congress ANC and, the release of veteran opposition leader, Nelson Mandela, after 27 years in prison.
This was followed by a repeal of the apartheid legislation. These negotiations eventually led to the adoption of an interim constitution to govern the transition to a new South Africa. This came after an all white referendum in which over 60 percent of whites voted in favour of absolute reforms. It also provided for a Constituent Assembly consisting of a combined Senate and National Assembly to draft the a new constitution.
It is under the terms of this constitution that Mandela would become president in May This constitution remained in force until when the current constitution of South Africa was adopted. Promulgated as the Constitution of South Africa Act, it has been described as a masterpiece of post conflict constitutional engineering in the post cold war era.
It effectively ended decades of oppressive white minority rule. The constitution has since been amended sixteen times but remains the basic law of the nation. Newsletters Subscribe. Back to country selector. Political system and history The territory of present day South Africa was formerly a British colony until its accession to independence, as a self governing dominion within the British Commonwealth in The Post independence Constitutional Development.
This constitution lasted until the demise of apartheid in Constitutional development in the s In , mounting international and domestic pressure, and, growing evidence and realization among the white political class that the apartheid system was unsustainable, forced the NP towards dismantling the system.
The period 2 February The ban on the ANC and other political parties is lifted as the first significant step towards a democratic transition 12 February Nelson Mandela is released after 27 years of incarceration 4 May The Groote Schuur Minute is signed, sealing a commitment by the ANC and the NP to pursue peace and negotiations. The government grants temporary immunity to some ANC members and promises to review security laws and lift the state of emergency 6 August The ANC agrees to end armed struggle to seek for a negotiated settlement September The National Peace Accord, the country's first multiparty agreement, is signed and the negotiations commission starts exploring the idea of an interim government November The all-party preparatory meeting takes place.
The NP confirms for the first time that it is prepared to accept an elected constituent assembly, provided that it also acts as an interim government. February The NP accepts the ANC's demand for an interim government and the principles that a new South Africa be non-racial, non-sexist and democratic.
A CODESA working group produces an initial agreement on general constitutional principles March The NP holds an all-white referendum to test support for the negotiations process - and receives overwhelming backing for reform. In the same month the ANC submits proposals for a two-phase interim government.
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