The
Constitution of South Africa is the supreme
lawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of the country of
South AfricaThe Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
. It provides the legal foundation for the existence of the
republicA republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
, sets out the
rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
and duties of its citizens, and defines the structure of the
governmentThe Republic of South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary, operating in a nearly unique system that combines aspects of parliamentary and presidential systems. Legislative authority is held by the Parliament of South Africa...
. The current
constitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, the country's fifth, was drawn up by the
ParliamentThe Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
elected in 1994 in the
first non-racial electionsThe South African general election of 1994 was an election held in South Africa to mark the end of apartheid, therefore also the first held with universal adult suffrage. The election was conducted under the direction of the Independent Electoral Commission .Millions queued in lines over a three...
. It was promulgated by
PresidentThe President of the Republic of South Africa is the head of state and head of government under South Africa's Constitution. From 1961 to 1994, the head of state was called the State President....
Nelson MandelaNelson Rolihlahla Mandela served as President of South Africa from 1994 to 1999, and was the first South African president to be elected in a fully representative democratic election. Before his presidency, Mandela was an anti-apartheid activist, and the leader of Umkhonto we Sizwe, the armed wing...
on 10 December 1996 and came into effect on 4 February 1997, replacing the
Interim ConstitutionThe Interim Constitution of 1993 was the fundamental law of South Africa from 1994 to 1996. It was a provisional document, intended to pave the way for the adoption of a permanent constitution...
of 1993.
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 ParliamentAn Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
—Act No. 108 of 1996—but, since the passage of the
Citation of Constitutional Laws ActThe Citation of Constitutional Laws Act, 2005 is an act of the Parliament of South Africa which altered the way in which the Constitution and its amendments are numbered and referred to....
, 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 for the country. One of the major disputed issues was the process by which such a constitution would be adopted. The
African National CongressThe African National Congress is South Africa's governing Africanist political party, supported by its tripartite alliance with the Congress of South African Trade Unions and the South African Communist Party , since the establishment of non-racial democracy in April 1994. It defines itself as a...
(ANC) insisted that it should be drawn up by a democratically-elected
constituent assemblyA constituent assembly is a body composed for the purpose of drafting or adopting a constitution...
, while the governing
National PartyThe National Party is a former political party in South Africa. Founded in 1914, it was the governing party of the country from 4 June 1948 until 9 May 1994. Members of the National Party were sometimes known as Nationalists or Nats. Its policies included apartheid, the establishment of a...
(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
referendumA referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
.
Formal negotiations began in December 1991 at the
Convention for a Democratic South AfricaThe apartheid system in South Africa was ended through a series of negotiations between 1990 and 1993 and through unilateral steps by the de Klerk government. These negotiations took place between the governing National Party, the African National Congress, and a wide variety of other political...
(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
supermajorityA supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a 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 1993The Interim Constitution of 1993 was the fundamental law of South Africa from 1994 to 1996. It was a provisional document, intended to pave the way for the adoption of a permanent constitution...
, which was formally enacted by
ParliamentThe Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
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 AssemblyThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
, directly elected by
party-list proportional representationParty-list proportional representation systems are a family of voting systems emphasizing proportional representation in elections in which multiple candidates are elected...
, and a ninety-member
senateThe Senate was the upper house of the Parliament of South Africa between 1910 and its abolition from 1 January 1981, and between 1994 and 1997.-1910-1981:...
, in which each of the nine
provincesSouth Africa is currently divided into nine provinces. On the eve of the 1994 general election, South Africa's former homelands, also known as Bantustans, were reintegrated and the four existing provinces were divided into nine. The twelfth, thirteenth and sixteenth amendments to the constitution...
was represented by ten senators, elected by the
provincial legislatureIn South Africa, a provincial legislature is the legislative branch of the government of a province. The provincial legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province...
. 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-
federalFederalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
system in place of centralised government, non-
racismRacism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
and non-
sexismSexism, also known as gender discrimination or sex discrimination, is the application of the belief or attitude that there are characteristics implicit to one's gender that indirectly affect one's abilities in unrelated areas...
, the protection of "all universally accepted fundamental rights, freedoms and
civil libertiesCivil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
," equality before the law, the
separation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
with an impartial
judiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, provincial and local levels of government with democratic representation, and protection of the diversity of
languageLanguage may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
s and
cultureCulture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
s. The new constitutional text was to be tested against these principles by the newly-established
Constitutional CourtThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
. 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, identifying a number of provisions that did not comply with the constitutional principles.
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 GazetteThe Government Gazette is the Gazette of record of South Africa. It is the "official organ of Government". University of Cape Town, The Government Gazette is used by the government as an official way of communicating to the general public....
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.
Contents
The constitution consists of a preamble, fourteen chapters containing 244 sections, and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.
Preamble
Chapter 1: Founding Provisions
Chapter 1 enshrines in the constitution key national principles, defines the country's
flagA national flag is a flag that symbolizes a country. The flag is flown by the government, but usually can also be flown by citizens of the country.Both public and private buildings such as schools and courthouses may fly the national flag...
and
national anthemA national anthem is a generally patriotic musical composition that evokes and eulogizes the history, traditions and struggles of its people, recognized either by a nation's government as the official national song, or by convention through use by the people.- History :Anthems rose to prominence...
, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign,
democraticDemocracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
state" based on principles of human rights, constitutional supremacy, the
rule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
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: Bill of Rights
Chapter 2 is a
bill of rightsA bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
which enumerates the civil, political, economic, social and cultural
human rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
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 9: the right to equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
and freedom from discriminationThe right to freedom from discrimination is an internationally recognised human right and enshrines the principle of egalitarianism. The right to freedom from discrimination is recognised in the Universal Declaration of Human Rights and enshrined in international human rights law through its...
. Prohibited grounds of discrimination include race, gender, sex, pregnancyPregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
, marital statusA person's marital status indicates whether the person is married. Questions about marital status appear on many polls and forms, including censuses and credit card applications.In the simplest sense, the only possible answers are "single" or "married"...
, ethnic or social origin, colour, sexual orientationSexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
, ageAgeism, also called age discrimination is stereotyping of and discrimination against individuals or groups because of their age. It is a set of beliefs, attitudes, norms, and values used to justify age based prejudice, discrimination, and subordination...
, disabilityA disability may be physical, cognitive, mental, sensory, emotional, developmental or some combination of these.Many people would rather be referred to as a person with a disability instead of handicapped...
, religionReligion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, conscience, belief, culture, language and birthBirth is the act or process of bearing or bringing forth offspring. The offspring is brought forth from the mother. The time of human birth is defined as the time at which the fetus comes out of the mother's womb into the world...
.
- Section 10: the right to human dignity.
- Section 11: the right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, which has been held to prohibit capital punishmentCapital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
, but does not prohibit abortionAbortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
.
- Section 12: the right to freedom and security of the person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from tortureTorture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, freedom from cruel, inhuman or degrading punishmentCruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
, the right to bodily integrityBodily integrity, otherwise known as physical or corporal integrity, is a concept that refers to the inviolability of the physical body. It is one of Martha Nussbaum’s ten principle capabilities . She defines bodily integrity as: “Being able to move freely from place to place; being able to be...
, and reproductive rightsReproductive rights are legal rights and freedoms relating to reproduction and reproductive health. The World Health Organization defines reproductive rights as follows:...
.
- Section 13: freedom from slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, servitudeInvoluntary servitude is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs...
or forced labour.
- Section 14: the right to privacy, including protection against search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
, and the privacy of correspondence.
- Section 15: freedom of thought
Freedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
and freedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
.
- Section 16: freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and expression, including freedom of the pressFreedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
and academic freedomAcademic freedom is the belief that the freedom of inquiry by students and faculty members is essential to the mission of the academy, and that scholars should have freedom to teach or communicate ideas or facts without being targeted for repression, job loss, or imprisonment.Academic freedom is a...
. Explicitly excluded are propagandaPropaganda is a form of communication that is aimed at influencing the attitude of a community toward some cause or position so as to benefit oneself or one's group....
for warWar is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
, incitementIn English criminal law, incitement was an anticipatory common law offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime....
to violenceViolence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
and hate speechHate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
.
- Section 17: freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
and the rightThe right to protest is a perceived human right arising out of a number of recognized human rights. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest may be a manifestation of the right to freedom of assembly, the right to...
to protestA protest is an expression of objection, by words or by actions, to particular events, policies or situations. Protests can take many different forms, from individual statements to mass demonstrations...
.
- Section 18: freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
.
- Section 19: the right to vote and universal adult suffrage; the right to stand for public office; the right to free, fair and regular election
An election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
s; and the right to form, join and campaignA political campaign is an organized effort which seeks to influence the decision making process within a specific group. In democracies, political campaigns often refer to electoral campaigns, wherein representatives are chosen or referendums are decided...
for a political partyA political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...
.
- Section 20: no citizen may be deprived of citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
.
- Section 21: freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
, including the right to leave South Africa, the right of citizens to a passportA passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
and the right to enter South Africa.
- Section 22: the right to choose a trade, occupation or profession
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
, although these may be regulated by law.
- Section 23: labour rights, including the right to unionise
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
and the right to strike.
- Section 24: the right to a healthy environment
In general, environment refers to the surroundings of an object, or the Natural environment, all living and non-living things that occur naturally on EarthEnvironment may refer to:...
and the right to have the environment protectedEnvironmental protection is a practice of protecting the environment, on individual, organizational or governmental level, for the benefit of the natural environment and humans. Due to the pressures of population and our technology the biophysical environment is being degraded, sometimes permanently...
.
- Section 25: the right to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
, limited in that propertyProperty is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
may only be expropriatedExpropriation is the politically motivated and forceful confiscation and redistribution of private property outside the common law. Unlike eminent domain or laws regulating the foreign investment, expropriation takes place outside the common law and may be used to denote an armed robbery by...
under a law of general application (not arbitrarily), for a public purpose and with the payment of compensation.
- Section 27: the rights to food
The right to food, and its variations, is a human right derived from the International Covenant on Economic, Social and Cultural Rights...
, water- Introduction :The number of people lacking access to safe drinking water is 884 million and more than 2.6 billion miss a basic sanitation.When taken as human right, the right to water places certain responsibilities upon governments to ensure that people can enjoy "sufficient, safe, accessible...
, health careHealth care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
and social assistance, which the state must progressively realise within the limits of its resources.
- Section 28: children's rights
Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education,...
, including the right to a name and nationality, the right to familyIn human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
or parentA parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
al care, the right to a basic standard of living, the right to be protected from maltreatment and abuseAbuse is the improper usage or treatment for a bad purpose, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, sexual assault, violation, rape, unjust practices; wrongful practice or custom; offense; crime, or otherwise...
, the protection from inappropriate child labour, the right not to be detained except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyerA lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
in court cases involving the child, and the prohibition of the military use of childrenThe military use of children takes three distinct forms: children can take direct part in hostilities , or they can be used in support roles such as porters, spies, messengers, look outs, and sexual slaves; or they can be used for political advantage either as human shields or in...
.
- Section 29: the right to education
The right to education is a universal entitlement to education, a right that is recognized as a human right. According to the International Covenant on Economic, Social and Cultural Rights the right to education includes the right to free, compulsory primary education for all, an obligation to...
, including a universal right to basic educationBasic education refers to the whole range of educational activities taking place in various settings , that aim to meet basic learning needs. According to the International Standard Classification of Education , basic education comprises primary education and lower secondary education...
.
- Section 30: the right to use the language of one's choice and to participate in the cultural life
The right to science and culture is an economic, social, and cultural human right claimed in the Universal Declaration of Human Rights and related documents which says that everyone has a right to participate in culture, to benefit from scientific progress, and to have a stake in their own...
of one's choice.
- Section 31: the right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language.
- Section 32: the right of access to information
Freedom of information refers to the protection of the right to freedom of expression with regards to the Internet and information technology . Freedom of information may also concern censorship in an information technology context, i.e...
, including all informationInformation in its most restricted technical sense is a message or collection of messages that consists of an ordered sequence of symbols, or it is the meaning that can be interpreted from such a message or collection of messages. Information can be recorded or transmitted. It can be recorded as...
held by the government.
- Section 33: the right to justice in administrative action by the government.
- Section 34: the right of access to the courts.
- Section 35: the rights of arrested, detained and accused people, including the right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
, protection against self-incriminationSelf-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
, the right to counselRight to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
and legal aidLegal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
, the right to a fair trialThe right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
, the presumption of innocenceThe presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
and the prohibition of double jeopardyDouble jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
and ex post facto crimesAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
.
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."
Section 37 allows certain rights to be limited during a
state of emergencyA state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
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: Co-operative Government
Chapter 3 deals with the relationships between organs of government in the three "spheres"national,
provincialSouth Africa is currently divided into nine provinces. On the eve of the 1994 general election, South Africa's former homelands, also known as Bantustans, were reintegrated and the four existing provinces were divided into nine. The twelfth, thirteenth and sixteenth amendments to the constitution...
and
localMunicipalities in South Africa are a division of local government that lie one level down from provincial government, forming the lowest level of democratically elected government structures in the country. The foundation for this layer of government is set out in Chapter 7 of the Constitution of...
. It lays down a set of principles requiring them to co-operate in
good faithIn philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
and to act in the best interests of the people. It also requires them to attempt to
settle disputeDispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...
s amicably before resorting to the courts.
Chapter 4: Parliament
Chapter 4 defines the structure of
ParliamentThe Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
, the legislative branch of the national government. Parliament consists of two houses, the
National AssemblyThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
(the
lower houseA lower house is one of two chambers of a bicameral legislature, the other chamber being the upper house.Despite its official position "below" the upper house, in many legislatures worldwide the lower house has come to wield more power...
), which is directly elected by the people, and the
National Council of ProvincesThe National Council of Provinces is the upper house of the Parliament of South Africa under the constitution which came into full effect in 1997...
(the
upper houseAn upper house, often called a senate, is one of two chambers of a bicameral legislature, the other chamber being the lower house; a legislature composed of only one house is described as unicameral.- Possible specific characteristics :...
), which is elected by the
provincial legislaturesIn South Africa, a provincial legislature is the legislative branch of the government of a province. The provincial legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province...
.
The Chapter defines the principles governing the election and dissolution of the houses, qualifications for membership of Parliament,
quorumA quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
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
billsA bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
into law; different procedures are provided for constitutional amendments, ordinary bills not affecting provincial matters, ordinary bills affecting provincial matters, and
money billIn the Westminster system , a money bill or supply bill is a bill that solely concerns taxation or government spending , as opposed to changes in public law.- Conventions :...
s.
Chapter 5: The President and National Executive
Chapter 5 defines the structure of the national executive and the powers of the
PresidentThe President of the Republic of South Africa is the head of state and head of government under South Africa's Constitution. From 1961 to 1994, the head of state was called the State 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: Provinces
Chapter 6 establishes the nine
provinces of South AfricaSouth Africa is currently divided into nine provinces. On the eve of the 1994 general election, South Africa's former homelands, also known as Bantustans, were reintegrated and the four existing provinces were divided into nine. The twelfth, thirteenth and sixteenth amendments to the constitution...
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 municipalitiesSouth Africa is divided into 52 districts . The 12th amendment to the Constitution reduced this number from 53. Another effect of this amendment is that each district is now completely contained within a province, thus eliminating cross-border districts. The districts also cover the entire area of...
.
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 CapeThe Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the much larger Cape Province...
.) The chapter provides for a unicameral
legislatureIn South Africa, a provincial legislature is the legislative branch of the government of a province. The provincial legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province...
, a
PremierIn South Africa, a Premier is the head of government of one of South Africa's nine provinces. The Premier of a province plays for that province a role similar to that played by the President for the country as a whole.-Election:...
elected by the legislature as head of the provincial executive, and an
Executive CouncilIn South Africa, the Executive Council of a province is the cabinet-equivalent in the provincial government. The Executive Council consists of the Premier and five to ten other members, who have the title "Member of the Executive Council", commonly abbreviated to "MEC".MECs are appointed by the...
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: Local Government
Chapter 7 sets out a framework for
local governmentLocal government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...
. It requires
municipalitiesMunicipalities in South Africa are a division of local government that lie one level down from provincial government, forming the lowest level of democratically elected government structures in the country. The foundation for this layer of government is set out in Chapter 7 of the Constitution of...
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: Courts and Administration of Justice
Chapter 8 establishes the structure of the
judicial systemThe judiciary of South Africa is the body of judges and magistrates who sit in the courts of South Africa. The judiciary is an independent branch of the government, subject only to the Constitution of South Africa and the laws of the country...
. It defines the hierarchy consisting of Magistrates' Courts, High Courts, the
Supreme Court of AppealThe Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
, and the
Constitutional CourtThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
. It provides for the appointment of judges by the President on the advice of the Judicial Service Commission and establishes a single
National Prosecuting AuthorityThe Constitution of the Republic of South Africa , created a single National Prosecution Authority , which is governed by the National Prosecuting Authority Act...
responsible for all criminal prosecutions.
Chapter 9: State Institutions Supporting Constitutional Democracy
Chapter 9 creates a number of other commissions and offices to protect and support democracy and human rights. These are the
Public ProtectorThe Public Protector is an office established by the Constitution of South Africa. It is one of the Chapter nine institutions, named for the constitutional chapter that establishes a number of bodies with the mandate to guard democracy....
(an
ombudsmanAn ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
), the
South African Human Rights CommissionThe South African Human Rights Commission was inaugurated in October 1995 as an independent national institution. It draws its mandate from the South African Constitution by way of the South African Human Rights Commission Act of 1994....
, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the
Auditor-GeneralThe Auditor-General is an office established by the 1996 Constitution of South Africa and is one of the Chapter nine institutions intended to support democracy, although its history dates back at least 95 years ....
, the
Independent Electoral CommissionThe Independent Electoral Commission is South Africa's independent election management body. It manages elections to the National Assembly, the provincial legislatures and the municipal councils....
and the
Independent Communications AuthorityThe Independent Communications Authority of South Africa is an independent regulatory body of the South African government, established in 2000 by the to regulate both the telecommunications and broadcasting sectors in the public interest....
.
Chapter 10: Public Administration
Chapter 10 lists values and principles for the administration of the
civil serviceThe term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
and establishes the Public Service Commission to oversee it.
Chapter 11: Security Services
Chapter 11 establishes structures for civilian control of the
Defence ForceThe South African National Defence Force is the armed forces of South Africa. The military as it exists today was created in 1994, following South Africa's first post-apartheid national elections and the adoption of a new constitution...
, the
Police ServiceThe South African Police Service is the national police force of the Republic of South Africa. Its 1116 police stations in South Africa are divided according to the provincial borders, and a Provincial Commissioner is appointed in each province...
and the
intelligence servicesThe State Security Agency is the department of the South African government with overall responsibility for civilian intelligence operations. It was created in 2009 to incorporate the formerly-separate National Intelligence Agency, South African Secret Service, South African National Academy of...
. 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: Traditional Leaders
Chapter 12 recognizes the status and authority of traditional leaders and
customary lawSouth African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa...
, subject to the Constitution. It allows for the creation of provincial houses of traditional leaders and a national council of traditional leaders.
Chapter 13: Finance
Chapter 13 deals with
public financePublic finance is the revenue and expenditure of public authoritiesThe purview of public finance is considered to be threefold: governmental effects on efficient allocation of resources, distribution of income, and macroeconomic stabilization.-Overview:The proper role of government provides a...
. 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 procurementGovernment procurement, also called public tendering or public procurement, is the procurement of goods and services on behalf of a public authority, such as a government agency...
and government borrowing. The chapter establishes the Financial and Fiscal Commission, to advise government on financial matters, and the
Reserve BankThe South African Reserve Bank is the central bank of South Africa. It was established in 1921 after Parliament passed an act, the "Currency and Bank Act of 10 August 1920," as a direct result of the abnormal monetary and financial conditions which World War I had brought...
, to oversee the
currencyIn economics, currency refers to a generally accepted medium of exchange. These are usually the coins and banknotes of a particular government, which comprise the physical aspects of a nation's money supply...
.
Chapter 14: General Provisions
The final chapter deals with transitional and incidental provisions. In particular, the first part deals with
international lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, 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 lawCustomary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
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,
- allowing Parliament to enact Charters of Rights which expand on the Bill of Rights;
- allowing recognition of the right of self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
of communities within South Africa;
- requiring public funding for political parties
Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy is a book by sociologist Robert Michels, published in 1911 , and first introducing the concept of iron law of oligarchy...
represented in national and provincial legislatures;
- requiring that obligations imposed by the constitution be carried out without delay;
- providing that some executive powers may be delegated by one organ of state to another;
- defining certain terms used in the text of the constitution; and,
- as the Constitution is published in all eleven official languages
South Africa has eleven official languages: Afrikaans, English, Ndebele, Northern Sotho, Sotho, Swazi, Tswana, Tsonga, Venda, Xhosa and Zulu. Fewer than one percent of South Africans speak a first language other than an official one. Most South Africans can speak more than one language. Dutch and...
, providing that the EnglishEnglish is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
text is authoritative in the event of a conflict.
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.
Schedules
- Schedule 1, referred to in Chapter 1, describes the national flag
The current flag of the Republic of South Africa was adopted on 27 April 1994, at the beginning of the 1994 general election, to replace the flag that had been used since 1928...
.
- Schedule 1A, referred to in Chapter 6, defines the geographical areas of the provinces, by reference to map
A map is a visual representation of an area—a symbolic depiction highlighting relationships between elements of that space such as objects, regions, and themes....
s published by the Municipal Demarcation BoardThe Municipal Demarcation Board is an independent authority responsible for delimiting the boundaries of South African districts and municipalities and the boundaries of the electoral wards within those municipalities.- General :...
defining the metropolitan and district municipalitiesSouth Africa is divided into 52 districts . The 12th amendment to the Constitution reduced this number from 53. Another effect of this amendment is that each district is now completely contained within a province, thus eliminating cross-border districts. The districts also cover the entire area of...
.
- Schedule 2 contains the texts of the oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
s (or solemn affirmations) to be sworn by political office-holders and judges.
- Schedule 3 describes the procedure for the election of the President by the National Assembly and the election of presiding officers by legislative bodies, as well as the formula whereby seats in the National Council of Provinces are to be allocated to political parties.
- Schedule 4 lists the "functional areas" over which Parliament and the provincial legislatures have concurrent competence to legislate.
- Schedule 5 lists the functional areas over which the provincial legislatures have exclusive competence to legislate.
- Schedule 6 details the transitional arrangements by which institutions existing under the previous constitution were converted into the institutions established by the new constitution. It provided for the continuation of existing laws and the assignment of their administration to the provincial governments where appropriate. It also provided for certain sections of the old constitution to continue in force despite its repeal, and subject to amendments listed in the schedule. It also included temporary amendments to the Constitution's own text to allow the Government of National Unity to continue until the next election.
- Schedule 7 listed the laws repealed by the new constitution, these being the interim constitution and the ten amendments made to it.
Amendments
Section 74 of the Constitution provides that a
billA bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
to amend the Constitution can only be passed if at least two-thirds of the members of the
National AssemblyThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
(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 ProvincesThe National Council of Provinces is the upper house of the Parliament of South Africa under the constitution which came into full effect in 1997...
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.
First
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 CourtThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
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
amnestyAmnesty is a legislative or executive act by which a state restores those who may have been guilty of an offense against it to the positions of innocent people, without changing the laws defining the offense. It includes more than pardon, in as much as it obliterates all legal remembrance of the...
by the Truth and Reconciliation Commission to 11 May 1994, instead of 6 December 1993.
Second
The Second Amendment was promulgated and came into force on 7 October 1998. It extended the terms of office of
municipal councilA municipal council is the local government of a municipality. Specifically the term can refer to the institutions of various countries that can be translated by this term...
s 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 CommissionThe South African Human Rights Commission was inaugurated in October 1995 as an independent national institution. It draws its mandate from the South African Constitution by way of the South African Human Rights Commission Act of 1994....
.
Third
The Third Amendment was promulgated and came into force on 30 October 1998. It allowed the demarcation of cross-boundary
municipalitiesMunicipalities in South Africa are a division of local government that lie one level down from provincial government, forming the lowest level of democratically elected government structures in the country. The foundation for this layer of government is set out in Chapter 7 of the Constitution of...
: municipalities partly in one
provinceSouth Africa is currently divided into nine provinces. On the eve of the 1994 general election, South Africa's former homelands, also known as Bantustans, were reintegrated and the four existing provinces were divided into nine. The twelfth, thirteenth and sixteenth amendments to the constitution...
and partly in another. The changes it made were repealed by the Twelfth Amendment.
Fourth and Fifth
The Fourth and Fifth Amendments were promulgated and came into force on 19 March 1999. They clarified that elections to the
National AssemblyThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
and the
provincial legislaturesIn South Africa, a provincial legislature is the legislative branch of the government of a province. The provincial legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province...
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 ProvincesThe National Council of Provinces is the upper house of the Parliament of South Africa under the constitution which came into full effect in 1997...
, 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.
Sixth
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 AppealThe Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
, while the President of the
Constitutional CourtThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
became
Chief Justice of South AfricaThe Chief Justice of South Africa is the head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the courts...
; 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 AssemblyThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
and extended the powers of municipal councils to raise loans.
Seventh
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.
Eighth, Ninth and Tenth
The Eighth and Ninth Amendments were promulgated and came into force on 20 June 2002. The Eighth Amendment allowed members of
municipal councilA municipal council is the local government of a municipality. Specifically the term can refer to the institutions of various countries that can be translated by this term...
s to
cross the floorFloor crossing in South Africa was a controversial system under which Members of Parliament, Members of Provincial Legislatures and Local Government councillors could change political party and take their seats with them when they did so...
, 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 ProvincesThe National Council of Provinces is the upper house of the Parliament of South Africa under the constitution which came into full effect in 1997...
after floor-crossing in
provincial legislaturesIn South Africa, a provincial legislature is the legislative branch of the government of a province. The provincial legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province...
.
The amendments were passed simultaneously with the Loss or Retention of Membership of National and Provincial Legislatures Act, an ordinary act of Parliament which purported to permit floor-crossing in the
National AssemblyThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
and the provincial legislatures; it was, however, declared unconstitutional by the
Constitutional CourtThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
. 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.
Eleventh
The Eleventh Amendment was promulgated on 11 April 2003, and came into force on 11 July of that year. It renamed the Northern Province as 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.
Twelfth and Thirteenth
The Twelfth Amendment was promulgated on 23 December 2005, and came into force on 1 March 2006. It redefined the boundaries of the
provincesSouth Africa is currently divided into nine provinces. On the eve of the 1994 general election, South Africa's former homelands, also known as Bantustans, were reintegrated and the four existing provinces were divided into nine. The twelfth, thirteenth and sixteenth amendments to the constitution...
in terms of the
district and metropolitan municipalitiesSouth Africa is divided into 52 districts . The 12th amendment to the Constitution reduced this number from 53. Another effect of this amendment is that each district is now completely contained within a province, thus eliminating cross-border districts. The districts also cover the entire area of...
, 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 CapeThe Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the much larger Cape Province...
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-NatalKwaZulu-Natal is a province of South Africa. Prior to 1994, the territory now known as KwaZulu-Natal was made up of the province of Natal and the homeland of KwaZulu....
to the
Eastern CapeThe Eastern Cape is a province of South Africa. Its capital is Bhisho, but its two largest cities are Port Elizabeth and East London. It was formed in 1994 out of the "independent" Xhosa homelands of Transkei and Ciskei, together with the eastern portion of the Cape Province...
, challenged the amendment before the
Constitutional CourtThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
, which ruled that the
KwaZulu-Natal LegislatureThe KwaZulu-Natal Legislature is the primary legislative body of the South African province of KwaZulu-Natal. It is unicameral in its composition, and elects the premier and the provincial cabinet from among the members of the leading party or coalition in the parliament.-Officers:* Speaker - N.P...
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
KhutsongKhutsong is a township on the West Rand of South Africa, and scene of widespread unrest since February 2006. It is situated close to the town of Carletonville , in the Merafong City Local Municipality of the Gauteng province.-Riots:...
, which was transferred from
GautengGauteng is one of the nine provinces of South Africa. It was formed from part of the old Transvaal Province after South Africa's first all-race elections on 27 April 1994...
to the
North WestNorth West is a province of South Africa. Its capital is Mafikeng. The province is located to the west of the major population centre of Gauteng.-History:...
, also strenuously opposed the change, through protests and
boycottA boycott is an act of voluntarily abstaining from using, buying, or dealing with a person, organization, or country as an expression of protest, usually for political reasons...
s. In 2009, the Sixteenth Amendment transferred
Merafong CityMerafong City Local Municipality is a local municipality in West Rand District Municipality, Gauteng, South Africa. Its boundaries enclose some of the richest gold mines in the world...
, which contains Khutsong, back to Gauteng.
Fourteenth and Fifteenth
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 electionSouth Africa held national and provincial elections to elect a new National Assembly as well as the provincial legislature in each province on 22 April 2009....
. 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.
Sixteenth
The Sixteenth Amendment was promulgated on 26 March 2009 and came into force on 3 April. It transferred the
Merafong City Local MunicipalityMerafong City Local Municipality is a local municipality in West Rand District Municipality, Gauteng, South Africa. Its boundaries enclose some of the richest gold mines in the world...
from
North WestNorth West is a province of South Africa. Its capital is Mafikeng. The province is located to the west of the major population centre of Gauteng.-History:...
province to
GautengGauteng is one of the nine provinces of South Africa. It was formed from part of the old Transvaal Province after South Africa's first all-race elections on 27 April 1994...
, reversing a change made by the Twelfth Amendment.
Previous constitutions
- 1909 South Africa Act 1909
The South Africa Act 1909 was an Act of the British Parliament which created the Union of South Africa from the British Colonies of the Cape of Good Hope, Natal, Orange River Colony, and the Transvaal Colony. The Act also made provisions for admitting Rhodesia as a fifth province of the Union in...
- Unified, self-governing DominionA dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
.
- 1961 Republic of South Africa Constitution Act, 1961 (Act No. 32 of 1961) - Republican constitution.
- 1983 Republic of South Africa Constitution Act, 1983 (Act No. 110 of 1983) - Establishment of the tri-cameral system.
- 1993 Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) - Interim constitution, 1994-1996.
See also
- Law of South Africa
South Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans...
- Public Protector
The Public Protector is an office established by the Constitution of South Africa. It is one of the Chapter nine institutions, named for the constitutional chapter that establishes a number of bodies with the mandate to guard democracy....
- Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- Constitutional law
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....
- Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
Cases
- Christian Lawyers Association of SA and Others v Minister of Health and Others 1998 (4) SA 1113 (T).
- S v Makwanyane and Another
S v Makwanyane and Another was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution...
1995 (3) SA 391 (CC).
Statutes
- Citation of Constitutional Laws Act 5 of 2005.
- Constitution of the Republic of South Africa Act
The Interim Constitution of 1993 was the fundamental law of South Africa from 1994 to 1996. It was a provisional document, intended to pave the way for the adoption of a permanent constitution...
200 of 1993.
- Loss or Retention of Membership of National and Provincial Legislatures Act Act 22 of 2002.
External links