Constitutional Supremacy in South Africa

Constitutional Supremacy

• Section 1 and 2 of the Constitution
  • Section 1 lists values that underlie constitutional supremacy, founded on the supremacy of the Constitution and the rule of law
  • Section 2 reiterates that the Constitution is the supreme law of South Africa

Substantive Rule of Law (Rechtstaat)

• Rule of law is a founding value of South Africa
• Linked with the values listed in Section 1 of the Constitution
• Accountability, responsiveness, openness, and value-based constitutionalism are central to the German Rechtstaat concept

Bill of Rights and Substantive Judicial Review

• Sections 6 and 7 of the Bill of Rights are the first sections in the Bill of Rights
• Courts are responsible for holding state conduct and law against the standards in the Bill of Rights
• All organs of state are bound by the Bill of Rights
• The Bill of Rights is capable of being adjudicated - courts determine whether challenged laws/conduct live up to the standards of the Bill of Rights

Separation of Powers

• Not explicitly stated in the South African Constitution, but rather structured to embody a separation of powers
• Implicit and dynamic, with chapters for legislative, executive, and judicial authority
• Constitution vests legislative, executive, and judicial authority in distinct bodies (Nationally: Parliament, the President, and the Courts)

1950s Constitutional Crisis

• Under the Union Constitution and stratification of racial citizenship rights
• The crisis illustrates the limits of a parliamentary sovereign system subject only to procedural judicial review
• Substantive judicial review is needed to ensure just and fair laws

Procedural vs Substantive Judicial Review

• Procedural review only checks if the correct process was followed, whereas substantive review checks the fairness and justice of the law
• South Africa adopted procedural review only, paving the way for apartheid legislation

Freedom Charter (1952)

• Principles of constitutionalism organized around the momentum of the liberation struggle
• Adopted in 1953, it was ahead of its time and embodied the social state principle
• Represented a rights-based approach, including socio-economic rights

1961 "Republic" Constitution

• Not influenced by the Freedom Charter
• SA became a republic under the National Party in 1961
• The new Constitution adopted to rid SA of colonial UK power
• The Constitution has all the harsh aspects of the 1910 Constitution
• Hard separation of powers, with absolute parliamentary sovereignty

1983 Tricameral Constitution

• Main political intent to give the executive leadership more power (apartheid)
• It collapsed the distinction between the symbolic head of state and the head of the executive
• Strict separation of powers, with the executive becoming a much more powerful branch
• Stricter stratification of citizenship, with Africans completely sidelined from the constitutional system

Political Negotiations of the Early 1990s

• Reaching consensus on the features of constitutionalism forming part of the interim and final Constitutions
• The negotiations process and drafting illustrate the strength of judicial review in the new conception of constitutionalism### Parliament's Role in Oversight and Accountability
• In South Africa, chairs of committees are appointed by a majority, but it is argued that a minority party should take the chair to make committees more aggressive and forceful in holding the executive accountable.
• Parliament's role in a given situation should be evaluated, considering whether it should do more or less in terms of oversight and accountability.

The Operation of Parliament

• Parliament has the power to make its own rules and orders, and direct its own internal proceedings.
• Case laws such as Mazibuko v Sisulu and United Democratic Movement v Speaker of the National Assembly are relevant.

General Rules of Parliament's Operation

• Under the Constitution, the National Assembly (NA) and National Council of Provinces (NCOP) have the power to:
  • Determine and control their internal arrangements, proceedings, and procedures.
  • Make rules and orders concerning their business, with due regard to representative and participatory democracy, accountability, transparency, and public involvement.
• These powers are provided for in sections 57 and 70 of the Constitution.
• The rules and orders must provide for the establishment, composition, powers, functions, procedures, and duration of committees.
• The rules also ensure the participation of minority parties in the proceedings of the House and committees.

Rules of Parliament

• Extensive rules have been prepared, including:
  • Joint rules of parliament for the joint business of both houses.
  • Separate rules for each house's own functions (Rules of the NA and rules of the NCOP).
• All rules and orders must comply with and give effect to the Constitution.
• Rules and orders that clash with the Constitution can be declared invalid.

Mazibuko v Sisulu Case

• The case highlights the power of parliament to manage its internal arrangements and proceedings, but notes that the rules do not cater for certain situations and are inconsistent with the Constitution.
• In 2012, Ms. Mazibuko gave notice of a motion of no confidence in the President in terms of section 102(2) of the Constitution.
• The speaker referred the notice to the chief's forum and the programme committee to determine whether and when the motion would be debated and voted on.
• However, the committees failed to reach a consensus, and the motion was not tabled before the NA.
• The applicant argued that the rules of the NA were inconsistent with the Constitution, as they did not recognize and vindicate the right of a member to have a motion of no confidence debated and voted on as a matter of urgency.