South African Constitutional Law in Context PDF

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To Lwando Scott Pierre de Vos To my wife, Margot, and my daughters, Jessica and Emily Warren Freedman PART ONE PRINCIPLES AND STRUCTURES OF GOVERNMENT CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT CHAPTER 2 BASIC CONCEPTS OF CONSTITUTIONAL LAW CHAPTER 3 SEPARATION OF POWERS AND THE THREE BRANCHES OF GOVERNMENT CHAPTER 4 SEPARATION OF POWERS AND THE NATIONAL LEGISLATURE CHAPTER 5 SEPARATION OF POWERS AND THE NATIONAL EXECUTIVE CHAPTER 6 SEPARATION OF POWERS AND JUDICIAL AUTHORITY CHAPTER 7 SEPARATION OF POWERS AND CHAPTER 9 INSTITUTIONS CHAPTER 8 MULTILEVEL GOVERNMENT IN SOUTH AFRICA PART TWO THE BILL OF RIGHTS AND THE ENFORCEMENT OF THE CONSTITUTION CHAPTER 9 INTRODUCTION TO AND APPLICATION OF THE BILL OF RIGHTS CHAPTER 10 THE LIMITATION OF RIGHTS CHAPTER 11 CONSTITUTIONAL REMEDIES CHAPTER 12 EQUALITY, HUMAN DIGNITY AND PRIVACY RIGHTS CHAPTER 13 DIVERSITY RIGHTS CHAPTER 14 POLITICAL AND PROCESS RIGHTS CHAPTER 15 ADMINISTRATIVE JUSTICE, ACCESS TO INFORMATION, ACCESS TO COURTS AND LABOUR RIGHTS CHAPTER 16 SOCIO-ECONOMIC RIGHTS The 1997 Australian comedy, The Castle, tells the story of the Kerrigan family’s ﬁght against the compulsory acquisition by the government of their home to make way for an expanded runway at the airport. The father, Darryl Kerrigan, hires an incompetent lawyer acquaintance, Dennis Denuto, to assist the family, but when asked by the judge what section of the Constitution he is invoking to challenge the expropriation, Dennis is unable to assist the court. ‘There is no one section,’ he hesitantly tells the court. ‘It’s just the … the vibe of the thing, your Honour.’ After the Kerrigans lost the case, Lawrence Hammill, a retired Queen’s Counsel, decides to argue it pro bono on appeal before the High Court of Australia. Lawrence makes a persuasive case that the Kerrigans have the right to just compensation under section 51(xxxi) of the Australian Constitution and closes by paraphrasing Darryl’s own comments that his house is more than just a structure of bricks and mortar: it is a home built with love and shared memories. The Court rules in favour of the Kerrigans and their case becomes a landmark precedent. To some extent this textbook takes its inspiration from The Castle. It recognises that a proper appreciation of South Africa’s Constitution requires a keen understanding of both the ‘vibe’ of the Constitution, speciﬁcally its broad aims of preventing a recurrence of the horrors of apartheid and of promoting the social and economic transformation of our society, and a detailed and precise understanding of the individual provisions of the Constitution. It also requires an understanding of the jurisprudence of the Constitutional Court that ﬂeshes out these provisions. This textbook therefore aims to provide students (and others interested in the manner in which the Constitution must be interpreted and applied) with a relatively succinct, yet comprehensive, overview of the constitutional law of South Africa. The text is premised on the fact that South Africa’s colonial and apartheid past continues to exert an inﬂuence on the attitudes and social and economic circumstances of those who live in the country as well as on the prevailing political culture. It embraces the notion that ours is a transformative Constitution aimed at facilitating the creation of a fair, equitable and just society in which the human dignity of every person is respected and protected. Given South Africa’s colonial and apartheid past, the individual provisions of the Constitution can be understood as having the collective purpose of ensuring (in the words of the late Nelson Mandela, the ﬁrst democratically elected President of South Africa) that ‘never, never and never again shall it be that this beautiful land will again experience the oppression of one by another’. As such, this book aims to situate the study of South African constitutional law within the political, social and economic context of present-day South Africa to enable readers better to understand the provisions of the Constitution and their interpretation, especially by the Constitutional Court. The book aims to achieve this purpose by including tables, diagrams and ‘learning boxes’ containing relevant factual information about the socio-economic and political realities in the country and its history, opinions from a wide array of sources as well as excerpts from academic writing (which are also aimed at encouraging critical thinking about the Constitution and its interpretation). We hope that it provides a crisp yet detailed overview of most of the pressing constitutional law issues in South Africa today, issues which are not normally addressed in other courses in the standard LLB curriculum. We further hope that the book signals that many constitutional law issues can be approached from diﬀerent angles, thus encouraging further reading and critical analysis and engagement with many of the most pressing constitutional law issues that are often hotly debated in the South African media. The editors deliberately recruited a team of dedicated authors with diﬀerent levels of experience from many diﬀerent academic institutions in order to utilise and showcase the diverse talents of constitutional law academics in South Africa. It is not surprising that working with a large team of authors presented some challenges. The editors worked hard to ensure that the contextual focus is retained throughout the book and that the book retains a coherent tone and an even level of complexity. We hope that the end result reﬂects at least some of this hard work. However, the book would not have been possible without the assistance of the authors whose dedication, we hope, is reﬂected in the ﬁnal product. We would therefore like to thank Danie Brand, Chris Gevers, Karthy Govender, Patricia Lenaghan, Nomthandazo Ntlama, Douglas Mailula, Sanele Sibanda and Lee Stone for their hard work in making this book a reality. Apart from the authors, we would also like to thank the staﬀ of Oxford University Press, and especially Penny Lane and Tarryn Talberg, for their hard work and patience. But we wish to single out Jessica Huntley from Oxford University Press, whose diplomatic skills, tireless attention to detail and unstinting support and encouragement sustained us throughout the process of editing the book. Without Penny, Tarryn and Jessica’s commitment to this book, it might not have seen the light of day. Pierre de Vos and Warren Freedman December 2013 PIERRE DE VOS (Editor) BComm (Law), LLB, LLM (cum laude)(Stellenbosch); LLM (Columbia, NY); LLD (Western Cape) Pierre de Vos holds the Claude Leon Foundation Chair in Constitutional Governance in the Department of Public Law at the University of Cape Town, where he lectures on constitutional law. Prior to joining the University of Cape Town, he lectured and held a Professorship at the University of the Western Cape. He is Chairperson of the Board of the Aids Legal Network, and is a Board member of the Triangle Project. Author and co-author of numerous articles for academic publications, Pierre also writes regularly, from a constitutional law perspective, for his widely read and quoted blog which addresses social and political issues. WARREN FREEDMAN (Editor) BComm, LLB (Witwatersrand); LLM (Natal); Advanced PG Certiﬁcate in Higher Education (KwaZulu-Natal) Warren Freedman is an Associate Professor in the School of Law at the University of KwaZulu-Natal, Pietermaritzburg where he lectures on constitutional law, environmental law, and property law. His particular research interests include sub-national constitutional law, local government law, land use and planning law, and coastal zone management law. Warren has published a wide range of articles on constitutional law and was a member of the panel of experts appointed to advise the KwaZulu-Natal Provincial Legislature on the drafting and adoption of a provincial constitution in 2004/2005. DANIE BRAND BLC (Pretoria), LLB (Pretoria); LLM (Emory); LLD (Stellenbosch) Danie Brand is an Associate Professor in the Department of Public Law at the University of Pretoria, where he lectures on aspects of constitutional law, administrative law and land reform law, and publishes in the ﬁelds of constitutional law and theory. Danie is a member of the University of Pretoria Centre for Human Rights, the International Association of Constitutional Law, and the editorial board of the Pretoria University Law Press (PULP). He is an Advocate of the High Court of South Africa, and an Associate Member of the Pretoria Society of Advocates. CHRISTOPHER GEVERS LLB (KwaZulu-Natal); LLM (London School of Economics) Christopher Gevers is a Lecturer in the Faculty of Law at the University of KwaZulu-Natal in Durban, where he lectures on human rights and international law. His research focuses broadly on international law, with a speciﬁc interest in international criminal law and international humanitarian law, as well as international legal theory. He has acted as adviser to litigants in cases concerning international law both in South Africa and abroad. Christopher also acts as a consultant on issues relating to human rights and international law for various non-governmental organisations. KARTHIGASEN GOVENDER LLB (London); LLB (Natal)(summa cum laude); LLM (Michigan) Karthigasen Govender is a Professor in the School of Law at the University of KwaZulu-Natal, Howard College campus, and is a fellow of St John’s College, Cambridge. In 1996 he was appointed to the South African Human Rights Commission by President Mandela, and in 2002 reappointed for a second term by President Mbeki. He is a Senior Arbitrator for the South African Local Government Bargaining Council. Karthigasen is a Barrister (Middle Temple, Inns of Court, UK), an Associate Member of the KwaZulu-Natal Society of Advocates, and an Advocate of the High Court of South Africa. He has also acted as a Judge of the High Court of South Africa. He has published work in the ﬁelds of constitutional and administrative law. PATRICIA LENAGHAN BLC LLB (Pretoria), LLM (cum laude), LLD (Western Cape) Patricia Lenaghan is an Associate Professor in the Department of Mercantile and Labour Law at the University of the Western Cape where she specialises in international trade law, regional integration and development, and European Union law. Patricia practised in Gauteng as an Attorney, Notary and Conveyancer of the High Court of South Africa before joining the University of the Western Cape to pursue her academic interests. DOUGLAS MAILULA B Proc (cum laude), LLB, LLM (South Africa) Douglas Mailula is a Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa where he lectures in constitutional law, and advanced constitutional law and fundamental rights. He is currently an assistant editor of the Comparative and International Law Journal of Southern Africa (CILSA). Douglas was formerly a Deputy Director of Mineral Policy Development in the erstwhile Department of Minerals and Energy. He has published academic articles on constitutional law, customary law, child law and family law in South Africa, and has presented papers at national conferences on mining and mineral law. Douglas is currently reading for his LLD. NOMTHANDAZO NTLAMA B Juris LLB (Fort Hare); Certiﬁcate in Comparative Human Rights, LLM (Stellenbosch); LLD (South Africa) Nomthandazo Ntlama was a Professor of Law in the Department of Public, Constitutional and International Law at the University of South Africa before joining the University of KwaZulu-Natal, where she is currently the Dean of Research in the College of Law and Management Studies. Previously, she was a Researcher on Equality at the South African Human Rights Commission, and a Lecturer and Coordinator of the Human Rights Projects attached to the UNESCO Oliver Tambo Chair of Human Rights, at the Nelson Mandela School of Law, University of Fort Hare. Nomthandazo was a board member of the Women on Farms Project in Stellenbosch, and also a member of the Verloren van Thermaat Centre, and the Centre for Indigenous Law at the University of South Africa. SANELE SIBANDA BA LLB (Cape Town); LLM (Witwatersrand) Sanele Sibanda is a Senior Lecturer at the School of Law at the University of the Witwatersrand where he teaches constitutional law and the law of persons. His research interests lie within the areas of constitutional law, customary law reform, decolonial theory and liberation theory. He has taught, researched and published work on questions related to separation of powers, administrative law, customary marriage, customary law reform and South African constitutionalism from a critical perspective. LEE STONE LLB (Free State); LLM (Pretoria); Diploma in the Justiciability of Economic, Social and Cultural Rights (Abo, Finland) Lee Stone is a Senior Lecturer in the School of Law at the University of KwaZulu-Natal’s Howard College campus, where she lectures in administrative law, constitutional law, human rights, and gender and the law. She is also an extraordinary lecturer at St Augustine University, Mwanza (Tanzania). Lee is an Attorney of the High Court of South Africa, and a member of the Board of Directors of Agenda, a feminist non-governmental organisation based in South Africa. Previously, Lee held a research position for the Refugee Rights Project at Lawyers for Human Rights, South Africa, worked for the African Commission on Human and Peoples’ Rights in The Gambia, and was a Legal Oﬀicer at the Institute for Human Rights and Development in Africa (a Pan-African NGO based in The Gambia). Prior to joining the University of KwaZulu-Natal she worked at the Legal Resources Centre in Durban. She has published work widely in the areas of international criminal law, the African regional human rights system, gender and the law, and constitutional law. South African Constitutional Law in Context is a pedagogically rich learning resource. This book is designed to form a strong foundation of understanding, to develop the skills to engage independently and judiciously with legal principles, and to create skilled and proﬁcient professionals. Brief description of the features: Pause for Reﬂection: This feature instils a broader and deeper understanding of the subject matter. It invites readers to interrogate or reﬂect upon speciﬁc questions and issues, thereby stimulating discussion, supporting independent intellectual thought, and developing the ability to analyse and engage meaningfully with relevant issues. Critical Thinking: This feature supports and encourages readers’ ability to engage critically and ﬂexibly with concepts and perspectives discussed in the text. The content of this feature may highlight areas of controversy, speciﬁc criticisms of the law, or possible options for law reform. It builds an awareness of various opinions about a particular principle, assists readers to engage with issues and debates from various perspectives, and develops readers’ skills in formulating and analysing legal argument. This Chapter in Essence: Primarily directed at supporting readers’ orientation, this section maps the key areas and core topics which are covered within each chapter in a succinct list of essential points. Glossary: The text is supported by a comprehensive glossary that succinctly explains and contextualises the key terms and concepts which appear in the text. All terms which are included in the glossary words are styled as bold-grey text within the book. Diagrams: These Figures provide visual overviews for some concepts in the book. This feature reinforces understanding, helps to clarify key concepts, and illustrates the interrelationship between distinct legal concepts. PART ONE Principles and structures of government CHAPTER 1South African constitutional law in context CHAPTER 2Basic concepts of constitutional law CHAPTER 3Separation of powers and the three branches of government CHAPTER 4Separation of powers and the national legislature CHAPTER 5Separation of powers and the national executive CHAPTER 6Separation of powers and judicial authority CHAPTER 7Separation of powers and Chapter 9 institutions CHAPTER 8Multilevel government in South Africa South African constitutional law in context 1.1 Introduction 1.2 The historical-legal context: from colonial conquest to democracy 1.2.1 Pre-Union developments 1.2.2 The Union of South Africa and the bifurcated state 1.3 The transition to democracy 1.3.1 The run-up to the ﬁrst democratic election 1.3.2 CODESA, the MPNF and the two-stage transition 1.3.3 Drafting and adoption of the ﬁnal 1996 Constitution 1.4 The South African Constitution of 1996 1.4.1 The transformative nature of the Constitution 1.4.2 Interpretation of the South African Constitution 1.4.3 Context: an inegalitarian society and a one-party dominant democracy Summary 1.1 Introduction A constitution is often said to be the founding document of a nation as the authority of the state is derived from it. It sets up the structures of government and authorises as well as regulates the exercise of power by the elected branches of government and the judiciary (and, in some instances, private institutions and individuals). It also places limits on the exercise of that power and sets out the ground rules according to which a country must be governed. However, democratic constitutions are not mere technical legal documents that contain detailed provisions prescribing the manner in which the legislature, the executive, the judiciary and other organs of state exercise public power and setting limits on the exercise of those powers to protect citizens. Hence, we cannot proﬁtably study the constitutional law of a democratic state in the abstract, as if the historical context out of which the constitution emerged and the current social, economic and political realities of this state have no bearing on an interpretation and evaluation of the various provisions of a written constitution. 1 Nor can we ignore the broader global context within which the constitution operates. Constitutional law can therefore arguably be described as the most ‘political’ branch of the law. In critically evaluating the manner in which constitutions actually operate in practice and in judging the successes and failures of various aspects of a constitutional design, we should start with, but cannot exclusively rely on, the text of the constitution to gain a comprehensive picture of how this constitution operates. We also need to consider the wider context in which that constitutional text ﬁnds application. Constitutions are often said to represent a snapshot of the hopes and dreams of a nation at the time of its writing or – more cynically – to represent a snapshot of the relative political power and inﬂuence of various political formations involved in the drafting of that constitution. However, constitutions are also living documents that judges have to interpret and apply in an ever-changing political, economic and social environment. A constitutional text often contains open-ended and relatively general language. In constitutional democracies, therefore, judges have to interpret, apply and ﬂesh out the meaning of the constitutional text. The interpretation and application of the various provisions of a constitution will not necessarily remain static. Judges will often reinterpret and reapply the text. These judges are, after all, human beings who do not ﬂoat above the world like disembodied ghosts completely untouched by the society in which they live. Judges are the products of the society in which they live. They will, despite their best eﬀorts, interpret the often open- ended and general provisions of a constitution in ways that are not entirely ‘objective’ and may change over time as social, economic and political circumstances change. Many of the justices of South Africa’s Constitutional Court have tentatively acknowledged the open- ended nature of the language of the South African Constitution. They have admitted that there may be a need to refer to extra-legal values and texts, including the South African political context and history, to justify their decisions. PAUSE FOR REFLECTION Approaches to interpreting a constitution In the ﬁrst decision handed down by the Constitutional Court of South Africa in S v Zuma and Others, Kentridge J signalled an awareness of (but skirted) the issue of what judges should do when confronted with a constitutional text that contains sometimes vague and open-ended phrases when he remarked: I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the inﬂuence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.2 One of the most perplexing questions in law relates to the manner in which judges should interpret the often open-ended or even vague provisions of a constitution. If judges merely make the constitution mean whatever they wish it to mean, they will be accused of being politicians and not judges. If they are not constrained by the text of the constitution or by other extra-legal but objective criteria, their decisions may lack legitimacy as judges are not elected and cannot be seen to make up the meaning of the constitution as they go along. This is why judges often state that they are constrained by the text of the constitution and, if the text is vague, why judges resort to factors such as context or the history of a country to give meaning to the provisions in a constitution. In this chapter we therefore discuss the constitutional history of South Africa, a history that has been dominated by colonialism and apartheid and the resulting struggle for freedom and democracy which ﬁnally led to the adoption of South Africa’s 1996 Constitution. We explore the manner in which the South African Constitution came into being and the nature of South Africa’s transition from an authoritarian race-based autocracy to a constitutional democracy. We also explore the current social, political and economic context within which the South African Constitution must operate, We focus, in particular, on the legacy of apartheid and the role of political parties in South Africa’s current one-party dominant democracy. 3 We then brieﬂy introduce the main features of the South African Constitution and pose questions about how this Constitution may be classiﬁed and how it should be interpreted. 1.2 The historical-legal context: from colonial conquest to democracy South Africa’s political history is often wrongly said to have begun in 1652 when Jan van Riebeeck arrived in South Africa and the process of colonisation formally commenced. Similarly, South Africa’s constitutional history is often said to have begun in 1910 when the South African state in its present form was created and the Union of South Africa came into existence with the passing of the Union of South Africa Act, 1909 (the South Africa Act or the Union Constitution) by the British Parliament. 4 This decidedly colonial approach to history, which views history through the eyes of those settlers who arrived in South Africa from Europe, is no longer viewed as either tenable or credible. It ignores the fact that Khoisan-speaking hunters and herders already occupied western parts of the country while agro-pastoralists occupied large parts of the eastern part of the country at the time when settlers from Western Europe arrived at the southern tip of Africa. 5 However, it is diﬀicult not to revert to colonial imposed markers when discussing the historical context out of which the modern democratic state in South Africa emerged. There are a number of reasons for this. First, pre-colonial history was never written down. Second, there is insuﬀicient clarity about the multitude of governing structures through which pre-colonial indigenous populations of South Africa governed themselves. Third, South Africa with its current borders legally came into existence only in 1910. In the section that follows we nevertheless attempt to draw attention to the fact that South Africa’s political and legal history can be viewed through various lenses and that we cannot ignore the legal pluralistic nature of South African society and legal culture when discussing the historical context out of which South Africa’s 1996 Constitution emerged. 1.2.1 Pre-Union developments It is important to understand the complex nature of pre-democratic governance structures in South Africa as these structures continue to have an eﬀect on South Africa’s democratic constitutional order. A number of centrally governed societies emerged in the geographical territory now known as South Africa from the seventeenth century onwards. In colonial enclaves in the Cape in the western parts of the region and in parts of Natal in the east, the development of constitutional forms mirrored those of other British colonies with large European settler populations. In the Cape, executive government emerged with a British-appointed Governor and an advisory council of white settlers. In 1853, this developed into a representative form of government with an appointed Governor but an elected legislature. Finally, in 1872, a system of responsible government emerged with a Governor-General representing the British Crown and an elected legislature whose support was needed for the formation of an executive council. 6 This meant that locally representative executives governed these territories, but the British-appointed Governor-General had to approve legislation. The Governor-General, in eﬀect, had a veto power over bills which could be exercised on the advice of the British government. Moreover, the British government also had the power to ‘disallow’ bills passed by the colonial legislatures within a period of one year from the date the bill was passed. This in eﬀect nulliﬁed these bills. 7 The governance structures therefore mirrored the Westminster system in place in Britain although the arrangement retained ﬁnal control over the colonies for the British government. Nevertheless, these governing structures ﬁrmly established the principle of the supremacy of the legislature on South African soil. 8 This meant that the legislature by and large had a free hand to pass any legislation it wished as long as it followed the requisite procedures. Courts were not empowered to test the laws passed by the legislature against a bill of rights and could not declare legislation invalid even where that legislation infringed on the rights of citizens. To the north of the Cape, two Boer Republics (the Orange Free State and the South African Republic, also known as the Transvaal Republic) emerged in the mid-nineteenth century. Both these Republics rejected the Westminster system described above. Under the inﬂuence of the constitutions of the United States, France and the Netherlands, the Boer Republics embraced a form of governance based on the principle of the separation of powers with directly elected presidents. The Orange Free State also had a justiciable Bill of Rights that guaranteed rights of peaceful assembly, petition, property and equality before the law. In addition, rigid rules were prescribed for the amendment of the Orange Free State Constitution of 1854. 9 However, despite the fact that the Orange Free State Constitution formally recognised the right of courts to review legislation, this power was used only once. Moreover, the protections in the Constitution were of limited application as they were interpreted to be reserved for white males only. 10 This early tentative experiment in constitutionalism was thus tainted by a notion of racial citizenship which later came to dominate constitutional law and practice in a uniﬁed South Africa. 11 In the South African Republic (Transvaal), the Constitution of 1858 was blatantly racist. It provided that ‘the People desire to permit no equality between coloured people and white inhabitants, either in Church or State’. 12 In the Transvaal, an attempt in 1892 by Chief Justice JG Kotze to review and strike down legislation of the legislature (Volksraad) on the basis that it conﬂicted with the Constitution created a constitutional crisis. 13 President Paul Kruger rejected the right of the court to review and strike down legislation and eventually ﬁred the Chief Justice. When swearing in a new Chief Justice, President Kruger warned the judges that ‘the testing right is a principle of the devil’, which the devil had introduced into paradise to test God’s word. 14 Those parts of South Africa not directly subjected to colonial domination exhibited various forms of indigenous governance structures loosely centred on the concept of chiefdoms. These chiefdoms usually had a similar governance hierarchy consisting of a chief, a paramount chief or a king. Below them were headmen who were representatives of leading families. Headmen were responsible for aﬀairs within a deﬁned geographical area and reported to the chief. The chief, together with his headmen, constituted a council. Below the chief and headmen were family or kraal heads. The chief’s role was to adjudicate disputes fairly and to provide for the well-being of his people by applying a living customary law which developed through its application by chiefs. To empower the chief to meet his obligations, he was vested with secular powers and was granted certain privileges that he was entitled to exercise. 15 The selection of a chief was rooted in ancestry and traditional leaders were born into the role rather than selected and trained. We must be careful not to evaluate the traditional leadership structures through the lens of Western-imposed governance structures. It is therefore not proﬁtable to evaluate these structures with reference to concepts such as the separation of powers or parliamentary sovereignty. Nevertheless, although chiefs had wide powers, these were not unlimited. Chiefs were generally required to consult with their councillors in certain matters and were always required to act for the beneﬁt of their people. 16 Potential challenges to the oﬀice of the chief also acted as an incentive to ensure that chiefs acted appropriately. 17 The emergence of the Zulu Kingdom, which eventually spanned large parts of what is now known as KwaZulu-Natal, represents a modiﬁcation to this governance model. The Zulu Kingdom began with the reign of Dingiswayo, Chief of the Mthethwa, who ruled from 1808 to 1818. King Dingiswayo conquered several chiefdoms with the assistance of a reorganised military. This had important sociopolitical implications since it weakened the inﬂuence of territorially based kinship relations. Dingiswayo also changed the political order by centralising power over the conquered area. 18 After the death of King Dingiswayo, King Shaka seized power. Shaka gathered a large number of chiefdoms into one entity and incorporated the defeated troops into the Zulu military. Although some chiefdoms were able to disperse into other territories, Shaka’s wars resulted in the merging of some 300 formerly independent chiefdoms into the Zulu Kingdom. Shaka ordered his warriors to remain unmarried and controlled the organisation of his military regiments. This further weakened traditional kinship ties and the powers of the elders in favour of his central authority. However, the purported authoritarian rule of Shaka still relied on a delicate system of delegated chieﬂy powers. Shaka was assisted by a staﬀ of chiefs who surrounded him in the royal kraal (a territorial dwelling unit with the house of the King located at the centre). While Shaka needed the chiefs to execute his will, he was careful to limit their eﬀective powers and it is argued that he stirred rivalry among them so that they would check one another but never dispute his will. 19 COUNTER POINT Diﬀerent viewpoints on the evaluation of indigenous governance structures There is a fundamental diﬀerence between the governance structures of the indigenous societies of South Africa and the governance structures imposed by the British colonial regime. Some commentators argue that the indigenous structures valued community and the relationships between individuals and groups. This mitigated what may appear from the vantage point of the modern state to be an autocratic and undemocratic arrangement. Chiefs relied on the goodwill of their subjects, so it is argued, and hence were required to rule wisely and humanely. Where this did not happen, chiefs could be removed and this acted as a check on the power of the chiefs. Others point to the essentially patriarchal nature of the arrangement and contend that the arrangement was, at the very least, deeply sexist as it negated the role of women in society. When evaluating these various governance structures of the era, it would be diﬃcult to do so except through the distorted twenty-ﬁrst century lens. However, it can be argued that the governance structures of traditional indigenous societies in South Africa have something to oﬀer a South African constitutional law scholar as they are often said to have been based on a kind of communalism. This indirectly ﬁnds resonance in the co-operative government provisions in the modern South African Constitution. Nevertheless, if we judge these structures from the modern-day vantage point, they may seem problematic as they are not based on the same democratic principles that we take for granted in a modern constitutional state. The various forms of governance and the customary powers of traditional leaders described above remained largely intact as the British extended their colonial domination across southern Africa. Nevertheless, over time – as the territorial expansion of colonial governments proceeded apace – indigenous South Africans were increasingly subjected to the authority of the colonial powers. This led to a situation in which colonial governments became the primary source of the traditional leader’s authority. In 1894, the Glen Grey Act 20 was passed in the Cape Colony. This Act eﬀectively excluded the vast majority of Africans from the Cape Parliament. It also weakened the authority of the system of chiefs by replacing them with a system of government-appointed district councillors. In addition, the Act introduced separate ‘reserve’ areas where Africans were supposed to stay if they were not selling their labour to white-owned institutions in cities and towns. The Act was thus designed to set a pattern of African land-holding – individual plots in separate ‘reserves’ – throughout the ‘Cape African reserves’. 21 It assigned certain geographical areas for use by blacks and others for whites under a distorted version of the communal system of land tenure. The Glen Grey Act can therefore be said to be a forerunner of the more all-encompassing segregationist and apartheid measures, especially the creation of territorially separate areas for African occupation after 1910. 22 By 1903, the Native Aﬀairs Commission (the ‘Langden Commission’) had developed a vision for a future South African union based on the territorial segregation of black and white as a permanent mandatory feature of public life. 23 The Commission endorsed the practice of creating ‘native reserves’ and accepted the notion that this involved special obligations on their part to the colonial state. ‘Natives’ were seen as having special rights to these pieces of reserved land as the ‘ancestral land held by their forefathers’. ‘Native reserves’ were held communally and administered by tribal chiefs who were said to have transferred their sovereign rights over land and their absolute political authority to the Crown through a process of ‘peaceful annexation’. 24 The assumption of the ‘peaceful annexation’ of land was a ﬁction which served the interests of the colonial rulers. These developments set the scene for the formation of a bifurcated state when the various territories now known as South Africa were uniﬁed into the Union of South Africa in 1910 and can clearly be seen as the precursor for the elaborate system of apartheid. 25 PAUSE FOR REFLECTION Recognition of traditional governance structures in the Constitution Constitutional law textbooks have often ignored the governance structures of indigenous South Africans as well as the customary law applied by chiefs during the pre-Union period. They have tended to focus exclusively on the imposition of the Westminster model by the British and on the importation of Roman-Dutch and English common law. This is not surprising as such textbooks have been written from a Western perspective. Today, the Constitution partly recognises traditional governance structures. However, as we shall see, these traditional governance structures were transformed in their encounter with the colonial rulers and this aﬀected their development. These developments help to explain the present arrangement in South Africa in which traditional leaders and the application of customary law are made subject to the provisions of the 1996 Constitution. 1.2.2 The Union of South Africa and the bifurcated state After the British defeated the armies of the Boer Republics during the Anglo-Boer War of 1899–1902, the territory now known as South Africa largely came under the inﬂuence of the British government. However, as part of a policy of granting self-rule to white colonists in its various colonies, Britain facilitated negotiations that led to the formation of the Union of South Africa in 1910. Black South Africans were not invited to take part in these negotiations. This process of negotiation resulted in the drafting of the South Africa Act (the Union Constitution). This Act brought together the four settler colonies – Cape, Natal, Orange Free State and Transvaal – as well as the various indigenous groupings in South Africa in a single unitary state known as the Union of South Africa. The Constitution establishing the Union in essence granted parliamentary democracy to the white minority within the borders of present-day South Africa. However, this settlement largely ignored the political aspirations of indigenous South Africans and subjugated the black majority to autocratic administrative rule. It is true that the drafters of the Union Constitution reached a compromise that allowed the Cape to retain its provision for limited voting rights for black citizens. 26 However, the northern provinces were allowed to exclude all participation by black South Africans in the electoral process. The retention of this very limited franchise for black South Africans in the Cape did not change the essentially racist and paternalistic nature of the founding Constitution of South Africa. African society was presented as essentially ‘traditional’ and was to be governed by chiefs under the paternalistic ‘protection’ of the white government. The South African polity was therefore divided into two distinct spheres – one white and one black. This reﬂected the colonial character of South Africa’s legal culture in which ‘professed legalism with its accompanying rhetoric of justice’ coexisted with the racist abuse of power by the state. 27 Thus section 147 of the Union Constitution stated that the ‘control and administration of native aﬀairs … throughout the Union shall vest in the Governor- General in Council’. The Governor-General in Council was given ‘all special powers in regard to native administration’. This ‘colonialism of a special’ type thus established a Westminster-style parliamentary system. Under this system, a pseudo-democratic white state co-existed with an authoritarian order in which the majority of the country’s people lived under a classic system of colonial indirect rule. 28 Traditional versions of South Africa’s constitutional history produced before 1994 ignore this bifurcated nature of the South African state between 1910 and 1994. 29 As noted above, the Constitution establishing the Union of South Africa was largely applicable to white citizens only. This Constitution followed the British model and opted for a Westminster-style system of parliamentary government and a form of parliamentary supremacy. The Union Parliament consisted of two Houses, the House of Assembly and the Senate. The House of Assembly was directly elected by the limited number of male citizens who had the right to vote. The members of the Senate were partly indirectly elected by the House of Assembly and partly nominated. South Africa was also established as a unitary state rather than a federal state. However, the four former colonies were retained in the form of four provinces and each province had equal representation in the Senate. The most striking aspect of the Union Constitution was, however, the fact that it retained a system of parliamentary supremacy. Despite this, the South African legislature was restrained, initially at least, in two important ways which imposed limits on the sovereignty of the newly created Parliament. First, until the British Parliament adopted the Statute of Westminster in 1931, Parliament was, in theory, still bound by the provisions of the Colonial Laws Validity Act, 1865. This meant that the Union Parliament could not legislate extraterritorially or in a manner repugnant to any Act of the British Parliament which had been made applicable in South Africa. All bills passed by the South African Parliament had to be sent to the Governor- General (as representative of the British Crown) for assent before they could become law. The Governor-General could assent to the bill, refuse his assent or reserve it for the King’s decision. The King made his decision based on the advice of the British cabinet. The British monarch also had the power to disallow a bill within one year after the bill had received the assent of the Governor-General, a power once again exercised on the advice of the British cabinet. In practice, little or no control was ever exercised and the powers referred to above were never used before they were scrapped by the Statute of Westminster. 30 Second, a small number of clauses in the Union Constitution required Parliament to use a special procedure before they could be amended. These entrenched sections protected the limited franchise for blacks in the Cape 31 and the guarantee of the equality of the two oﬀicial languages (English and Dutch). 32 Thus, Parliament could amend any section of the Constitution with a simple majority in each of the Houses of Parliament sitting separately. However, section 152 of the Union Constitution required that any alteration of the above sections (as well as section 152 itself) would only be valid if the bill was passed by both Houses of Parliament sitting together and agreed to at the third reading of the bill by not less than two-thirds of the total number of members of both Houses. 33 Despite the procedural protection of the limited franchise, all African voters (those who lived in the Cape Province and had retained their right to vote in the deal struck in 1909) were nevertheless removed from the common voters roll and given separate representation in 1936. 34 The Union’s ﬁrst full-blown constitutional crisis arose after the National Party (NP) narrowly won the parliamentary election in 1948 on the basis, among others, that it would impose absolute racial segregation on South Africa. In 1951, the NP attempted to remove ‘coloured’ voters from the common voters roll by adopting the Separate Representation of Voters Act. 35 A group of voters challenged the Act on the basis that the procedure required by section 152 of the Union Constitution was not used. In Harris and Others v Minister of the Interior and Another,36 a unanimous Appellate Division (AD) found that the Separate Representation of Voters Act was of no force because the correct procedure had not been used to pass the amendments. After further legislative and judicial manoeuvres, in which the NP was again thwarted, it increased the size of the AD from ﬁve to 11 judges and also increased the size of the Senate. When this legislative move was again challenged in Collins v Minister of the Interior,37 10 of the 11 judges upheld the challenged amendments to the Union Constitution. 38 This brought an end to the limited voting rights enjoyed by black South Africans and until partial reforms were introduced in 1983, only white South Africans could vote in parliamentary elections. In 1958, the whites-only Parliament adopted the South Africa Amendment Act. 39 This Act prohibited any court of law in South Africa from enquiring ‘into or … pronounc[ing] upon the validity of any law passed by Parliament’ other than those aﬀecting the clause dealing with the two oﬀicial languages. 40 When South Africa became a Republic in 1961, a new constitution was adopted which conﬁrmed the supremacy of Parliament. Section 59 of the 1961 Constitution thus stated that: ‘Parliament shall be the sovereign legislative authority in and over the Republic, and shall have full power to make laws for the peace, order and good government of the Republic’. This extreme form of parliamentary supremacy, which became dominant in South Africa after 1948 and the rise of Afrikaner nationalism, is said to have ‘brought about the debasement of the South African legal system’ and brought it to its ‘logical and brutal conclusion’ to the detriment of a respect for human rights. 41 However, it may well be argued that it was the combination of this extreme form of parliamentary sovereignty and the inherently racist nature of the bifurcated constitutional system which gave the South African state its particularly brutal character before the advent of democracy in 1994. COUNTER POINT An extreme version of parliamentary sovereignty In Sachs v Minister of Justice; Diamond v Minister of Justice,42 the AD had to consider the validity of a banning order issued by the Minister in terms of the relevant provisions of an applicable Act. Banning orders prohibited a person from being present in speciﬁc areas because the Minister was satisﬁed that the person ‘is in any area promoting feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand’.43 Banning orders were a powerful tool used by the authorities to restrict the political activities of those opposed to the policies of the government. In rejecting the challenge to the banning order, Stratford ACJ made the following statement about the nature of parliamentary sovereignty in South Africa: [O]nce we are satisﬁed on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a Court of law to curtail its scope in the least degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the Courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and that it is the function of courts of law to enforce its will. In the present case we were referred to many decisions dealing with the exercise of discretionary powers. In this division, at all events, no decision aﬃrms the right of a Court to interfere with the honest exercise of a duly conferred discretion. For the sake of greater caution I should perhaps add, that in exercising a conferred discretion, the procedure laid down in terms of its grant must, of course, be observed as essential conditions of its exercise. Interferences when they have occurred are justiﬁed on one of two broad grounds, either that (a) the exercise has not been honest or (b) that the discretionary power has been exceeded.44 The view expressed by Stratford ACJ represents an extreme version of the nature of parliamentary sovereignty. It is also far less compatible with the notion of democracy than a view which limits the power of the legislature to adopt legislation that encroaches on the rights of citizens and allows judges to review and set aside legislation and the actions of members of the executive if this is needed to protect and safeguard the rights of individuals. This is because democracy itself can be subverted if the rights of citizens to exercise their democratic rights are not protected. After the Union of South Africa was established in 1910, the bifurcated nature of the South African state led to the adoption of several laws by the Union Parliament aimed at developing legal mechanisms to entrench further a classic form of indirect colonial rule. The Black Administration Act of 1927 (BAA)45 was a lynchpin in this system which reaﬀirmed the rule of chiefs within so-called ‘reserves’ and that subordinated their rule to the power of the ‘white’ government and its oﬀicials. 46 The BAA made the Governor-General the supreme chief with the authority to create and divide tribes and appoint any person he chose as chief or headman – even in the face of popular opposition from a community. 47 The BAA to some extent built on the Glen Grey Act and further subverted the traditional governance structures based on chiefs selected via kinship. It allowed for the appointment of traditional leaders from outside the ruling families, creating scope for a body of government lackeys, who were compliant with entrenched party political interests, to assume the role of traditional leader. It has been remarked that the BAA: was intended to shore up the remains of chieftaincy in a country- wide policy of indirect rule, which would allow for segregation in the administration of justice. The policy was aptly named ‘retribalisation’, giving chiefs the semblance of power and hoping that this would safeguard the allegiance and acquiescence of the Reserve residents. 48 The BAA conferred civil jurisdiction on chiefs who could apply the customary law to their subjects in most private law civil disputes. However, in practice, Africans had a choice of courts to which they could take their civil case – the magistrates’ courts or the chieﬂy authority. The magistrates obviously wielded much more power than the chiefs in relation to the central government, but the chiefs were given a niche in the local arm of administration which ‘they seized with alacrity’. 49 As the conﬁdence of the ruling NP government grew in the years after 1948, it stepped up political repression while simultaneously trying to create a system based on ethnic nationalism within a tribal context. Thus, the implementation of a system of indirect rule accelerated with the adoption of the Bantu Authorities Act 50 in 1951 and, by 1959, legislation which created a system of homelands. 51 The system divided South Africa into several ‘self-governing’ territories where each ethnic group was accommodated in a separate homeland (the former ‘native reserves’). These homelands were envisaged as the sole mechanisms through which Africans would be able to exercise their political aspirations. People classiﬁed as ‘coloured’ or ‘Indian’ were not accommodated in this system at all. Eventually, certain of the homelands were granted ‘independent’ status52 but other homelands never achieved or refused to take up an oﬀer of ‘independence’. Chiefs held half the seats in the legislative assembly of the homelands ex oﬀicio and thus assured the leading parties of support. 53 It is important to note that this social engineering had devastating consequences for the traditional governing structures of indigenous South Africans. It transformed chiefs by bringing them directly into the service of the state. It became more and more diﬀicult for chiefs to claim legitimacy, to win respect from their followers and to implement the provisions of the Bantu Authorities Act at the same time. 54 With the advent of democracy, the role of traditional leaders, and especially chiefs, has become controversial given the manner in which the system was manipulated during the colonial and apartheid eras. This role is perceived to be inherently undemocratic and patriarchal as it is both hereditary and reserved for men. 55 However, despite concerns surrounding the undemocratic essence of tribal leadership, it remains an important part of South Africa’s cultural heritage which, despite allegations of corruption, receives some popular support. 56 By the late 1970s, the apartheid state had come under increasing pressure both internally and externally as opposition and resistance to apartheid and white minority rule increased and the struggle for freedom by the black majority gathered momentum. 57 In response, the apartheid government of Prime Minister PW Botha (who became Prime Minister in 1979) opted for a process of so-called ‘reform’ to try to reincorporate people classiﬁed as ‘Indian’ and ‘coloured’ under the apartheid system into the political system. This led to the 1983 Constitution58 which extended the franchise to coloureds and Indians in a tricameral legislature. This new constitutional system (whose introduction was ﬁercely resisted by the majority of South Africans) created three separate Houses of Parliament: one chamber for whites, one for Indians and one for coloureds. The jurisdiction for each House was distributed according to whether an issue dealt with an ‘own’ aﬀair or ‘general’ aﬀair. Own aﬀairs were vaguely deﬁned and were deemed to be matters ‘which specially or diﬀerentially aﬀect a population group in relation to the maintenance of its identity, traditions and customs’. 59 Each House was given powers to deal exclusively with these ‘own aﬀairs’. ‘General aﬀairs’ were deﬁned as matters which were not own aﬀairs. 60 The white minority government retained control of this system through a provision in the Constitution that stated that the State President took the ﬁnal decision on whether an issue dealt with an own aﬀair or a general aﬀair. 61 Each House enacted legislation dealing with ‘own aﬀairs’ related to its race group while all three Houses of Parliament dealt with general aﬀairs. However, in eﬀect, the tricameral Constitution ensured that the exercise of power would remain ﬁrmly entrenched in the hands of the dominant white majority party – the National Party. This was done, ﬁrst, by centralising the running of the government under the State President who was given extraordinary powers in both the legislature and executive arena. 62 Moreover, all signiﬁcant decisions within the tricameral legislature – such as the election of the President – would be automatically resolved by a 4:2:1 ratio of white, coloured and Indian representatives. 63 This ensured that even if the Indian and coloured Houses voted in unison, the will of the white House would prevail. 64 Despite these ‘reforms’, the African majority continued to be excluded from the constitutional scheme. The apartheid government maintained that South Africa would eventually be divided into one section over which the tricameral Parliament would hold sway and the several homelands which would obtain ‘independence’ and would govern all Africans living within the original borders of the Union of South Africa. Africans living outside the homelands were all deemed to ‘belong’ to one of the homelands and had no political rights in the areas in which they actually lived. These ‘reforms’ backﬁred spectacularly and resistance to the apartheid government became ever more ﬁerce. Finally, in 1990, State President FW de Klerk lifted the restrictions placed on liberation movements such as the African National Congress (ANC), the South African Communist Party (SACP) and the Pan Africanist Congress (PAC), and ordered the release of Nelson Mandela and other liberation leaders from prison. The period of negotiations then commenced. 1.3 The transition to democracy 1.3.1 The run-up to the ﬁrst democratic election The Constitutional Court has described South Africa’s past as that of a ‘deeply divided society characterised by strife, conﬂict, untold suﬀering and injustice’ which ‘generated gross violations of human rights, the transgression of humanitarian principles in violent conﬂicts and a legacy of hatred, fear, guilt and revenge’. 65 As the struggle against this system intensiﬁed, the minority government, backed by a powerful security apparatus, became more oppressive and authoritarian. 66 Distinct but sometimes overlapping movements led the resistance to this system of white minority rule: the ANC and the SACP with their internal allies, the United Democratic Front (UDF) and large sections of the trade union movement, as well as the PAC and the Black Consciousness Movement, including the Azanian People’s Organisation (AZAPO). The ANC was oﬀicially formed on 8 January 1912 and has a long and complicated history of resistance to white political rule. Its stature grew as it took a more deﬁant stance against the apartheid policies of the newly elected NP after 1948 – especially after its Youth League under the auspices of Oliver Tambo and Nelson Mandela successfully pressed the organisation to adopt more militant methods in resisting the apartheid regime. In June 1952, the ANC initiated the Deﬁance Campaign which employed passive resistance strategies to resist the newly imposed legal restrictions on black South Africans in general and Africans in particular. The ANC then helped to engineer the drafting and adoption of the Freedom Charter with the assistance of other opponents of apartheid, including the SACP, the Natal Indian Congress and others. 67 This Charter contained claims and expressed the aspirations of large sections of the South African citizenry oppressed by the apartheid regime, formulated in the format of a charter of rights with a strong emphasis on non-racialism. As such, the Freedom Charter is often seen as one of the founding documents of the human rights culture which later found expression in the Bill of Rights contained in South Africa’s 1996 Constitution. 68 PAUSE FOR REFLECTION Extracts from the Freedom Charter The People Shall Govern! Every man and woman shall have the right to vote for and to stand as a candidate for all bodies which make laws; All people shall be entitled to take part in the administration of the country; The rights of the people shall be the same, regardless of race, colour or sex … The People Shall Share in the Country’s Wealth! The national wealth of our country, the heritage of South Africans, shall be restored to the people; The mineral wealth beneath the soil, the Banks and monopoly industry shall be transferred to the ownership of the people as a whole … The Land Shall be Shared Among Those Who Work It! Restrictions of land ownership on a racial basis shall be ended, and all the land re-divided amongst those who work it to banish famine and land hunger; The state shall help the peasants with implements, seed, tractors and dams to save the soil and assist the tillers; Freedom of movement shall be guaranteed to all who work on the land; All shall have the right to occupy land wherever they choose; People shall not be robbed of their cattle, and forced labour and farm prisons shall be abolished. All Shall be Equal Before the Law! No-one shall be imprisoned, deported or restricted without a fair trial; No-one shall be condemned by the order of any Government oﬃcial; The courts shall be representative of all the people … All Shall Enjoy Equal Human Rights! The law shall guarantee to all their right to speak, to organise, to meet together, to publish, to preach, to worship and to educate their children; The privacy of the house from police raids shall be protected by law … There Shall be Houses, Security and Comfort! All people shall have the right to live where they choose, be decently housed, and to bring up their families in comfort and security; Unused housing space shall be made available to the people; Rent and prices shall be lowered, food plentiful and no-one shall go hungry; A preventive health scheme shall be run by the state; Free medical care and hospitalisation shall be provided for all, with special care for mothers and young children … It is often said that the Freedom Charter is the intellectual source for many of the provisions contained in South Africa’s Bill of Rights. Like the Bill of Rights, the Freedom Charter addresses both traditional civil liberties such as the right to vote and the right to a trial as well as social and economic rights concerns relating to housing and land, among others. Although the historical and political context in which the document was formulated inﬂuenced the content of the provisions of the Charter and the way in which the demands were formulated, it is remarkable that it addresses many of the same concerns addressed in the Bill of Rights. The Sharpeville Massacre took place on 21 March 1960, a date now commemorated as Human Rights Day in South Africa, when the South African police opened ﬁre on a protesting crowd, killing 69 people (including eight women and 10 children), and wounding over 180. As a result of the massacre, the ANC decided to change tactics and formed Umkhonto weSizwe (MK) which was charged with using various forms of violence to sabotage the apartheid state. 69 The ANC as well as the PAC were subsequently outlawed and their leaders went into exile or were captured. During the Rivonia Trial of 1963 and 1964, 10 members of the ANC – including Nelson Mandela, Walter Sisulu, Govan Mbeki and Rusty Bernstein – were tried for sabotage. Eight were found guilty and sentenced to life imprisonment. Many other ANC leaders – including long-time ANC President Oliver Tambo – ﬂed into exile from where they orchestrated the ANC’s resistance campaign against the apartheid state by mobilising international opinion against the apartheid regime and orchestrating internal resistance. As the apartheid state increased its repression of political dissent, resistance grew. From 1976 to 1990, ANC-aligned internal resistance (under the ﬂag of non-racialism and non- sexism) focused on the eﬀorts of the labour movement led by the Congress of South African Trade Unions (COSATU) and the UDF. These internal allies of the ANC played a signiﬁcant role in putting pressure on the apartheid state, gradually bringing the leaders of the governing NP to the realisation that it would eventually have no option but to cede power and allow the formation of a democratic state. Meanwhile, the PAC had broken away from the ANC in 1959 because they felt the ANC was too accommodating. They also believed that liberation in South Africa had to be led by Africans without assistance from white, coloured and Indian allies. Under the leadership of the charismatic Robert Sobukwe, the PAC organised mass-based resistance campaigns leading a nationwide protest against the hated Pass Laws which required African people in so-called ‘white areas’ to carry a pass book at all times. Sobukwe led a march to the local police station at Orlando, Soweto, to defy openly the laws, which led to the Sharpeville Massacre. Following Sobukwe’s arrest, he was charged and convicted of incitement, and sentenced to three years in prison. After serving his sentence, he was interned on Robben Island. The new General Law Amendment Act 70 was passed, allowing his imprisonment to be renewed annually at the discretion of the Minister of Justice. This procedure became known as the ‘Sobukwe clause’ and went on for a further three years. Sobukwe was the only person imprisoned under this clause and he remained imprisoned on Robben Island until his release in 1969. 71 The founding of the Black Consciousness movement is usually credited to Steve Biko. However, the movement was probably also inﬂuenced by the philosophy espoused by Robert Sobukwe and the PAC as it held that liberation could not be achieved by multiracial institutions, parties or movements. Biko challenged the notion – often said to be the root cause of racism and racial domination inherent in South African society of the time – that ‘whiteness’ was ‘normal’ and that ‘blackness’ was an aberration. He aimed to infuse into the black community a sense of pride and self-respect. 72 The Black Consciousness movement inﬂuenced the Soweto uprising which commenced on 16 June 1976, but Biko was later arrested, detained and tortured. He died at the hands of the police in 1977. In the absence of a strong leader and a viable organisation in exile, many young South Africans, who ﬂed the country after the Black Consciousness-inspired uprising, joined the non-racial ANC whose inﬂuence and political dominance grew. The political struggle in South Africa appeared to reach an impasse in the 1980s as the UDF increasingly managed to make the country ungovernable and as state repression increased through the application of various States of Emergency. But then, according to the Constitutional Court, our history suddenly took a turn for the better. In the 1980s, it became manifest to most people that our country was heading for disaster unless the conﬂict was reversed. 73 Thus, ‘remarkably’, the country’s political leaders ‘managed to avoid a cataclysm by negotiating a largely peaceful transition from the rigidly controlled minority regime to a wholly democratic constitutional dispensation’. 74 Tentative and highly secretive talks between members of the ANC and the NP commenced in mid-1980. When FW de Klerk became President in 1989, he was able to build on the previous secret negotiations with the imprisoned Nelson Mandela. The ﬁrst signiﬁcant steps towards formal negotiations took place in February 1990 with the unbanning of the ANC and other banned organisations such as the PAC by State President FW de Klerk, and the release of political leaders such as Nelson Mandela from prison. 75 Exiled leaders of the ANC and the PAC returned to South Africa and eventually negotiations about the transition to democracy commenced. 1.3.2 CODESA, the MPNF and the two-stage transition The Congress for a Democratic South Africa (CODESA) was convened in late 1991 and it was this body – comprising all the major political formations in South Africa76 – which was tasked with the drafting of the interim Constitution. CODESA was preceded by intense negotiations, particularly between the NP and the ANC, to try to reach agreement on the basic premises that would guide the negotiating process. The Declaration of Intent signed when CODESA was set in motion on 21 December 1991 already recorded a common view that the new constitution would ensure:77 a. that South Africa will be a united, democratic, non-racial and non-sexist state in which sovereign authority is exercised over the whole of its territory; b. that the Constitution will be the supreme law and that it will be guarded over by an independent, non-racial and impartial judiciary; c. that there will be a multi-party democracy with the right to form and join political parties and with regular elections on the basis of universal adult suﬀrage on a common voters roll; in general the basic electoral system shall be that of proportional representation; d. that there shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances; e. that the diversity of languages, cultures and religions of the people of South Africa shall be acknowledged; and f. all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal system that guarantees equality of all before the law. 78 However, negotiations stalled in June 1992 when the ANC walked out in protest at the slow pace of progress and CODESA was eventually replaced by the Multi-Party Negotiating Forum (MPNF). 79 This body ﬁnally adopted the interim Constitution in 1993 before it was ratiﬁed by the apartheid Parliament. The negotiating process was not without its diﬀiculties as the major political parties had very diﬀerent visions about the transition to democracy. On the one hand, the ANC was committed to the drafting of a constitution by a democratically elected body and the formation of a majority government. On the other hand, the NP favoured the drafting of a ﬁnal constitution by the unelected MPNF, followed by a long transitional government with power shared among the most popular parties in a manner that would eﬀectively provide a veto for coalition parties. After many twists and turns, the ANC and the NP managed to reach a compromise model for the transition to democracy. While the ANC and the NP agreed that it would be necessary to draft a constitution containing certain basic provisions, those who negotiated this commitment were confronted, however, with two problems. As the Constitutional Court explained: The ﬁrst arose from the fact that they were not elected to their positions in consequence of any free and veriﬁable elections and that it was therefore necessary to have this commitment articulated in a ﬁnal constitution adopted by a credible body properly mandated to do so in consequence of free and fair elections based on universal adult suﬀrage. The second problem was the fear in some quarters that the constitution eventually favoured by such a body of elected representatives might not suﬀiciently address the anxieties and the insecurities of such constituencies and might therefore subvert the objectives of a negotiated settlement. The government and other minority groups were prepared to relinquish power to the majority but were determined to have a hand in drawing the framework for the future governance of the country. The liberation movements on the opposition side were equally adamant that only democratically elected representatives of the people could legitimately engage in forging a constitution: neither they, and certainly not the government of the day, had any claim to the requisite mandate from the electorate. 80 The impasse was resolved by a compromise – typical of the constitution-making process – which required a programmed two-stage transition from the apartheid state to a democratic state instead of an outright transferral of power from the old order to the new. In the ﬁrst stage of the transition, the unelected negotiating parties at the MPNF negotiated the interim Constitution which was adopted by the apartheid Parliament in terms of the 1983 Constitution and which became binding immediately after the ﬁrst democratic election of April 1994. 81 The interim Constitution provided for the establishment of an interim government of national unity and the country was governed on a coalition basis with both the ANC and the NP represented in the executive. This coalition government was provided for in clauses in the interim Constitution that allowed for a form of power sharing among the major political parties for a minimum period of ﬁve years. In the second stage, a Constitutional Assembly was then to draft a ﬁnal constitution after the ﬁrst democratic election. 82 Table 1.1 The two-stage constitution-making process Interim Constitution Final Constitution Negotiated before the ﬁrst democratic election by Negotiated after the ﬁrst democratic election by the unelected MPNF. elected Constitutional Assembly. Contains power-sharing agreement allowing the ANC and Does not provide for any formal power-sharing agreement – the NP to share power for ﬁve years and provides for two after the 1999 election the winner of the election governs Deputy Presidents – one from the ANC and one from the the country on its own. NP. Contains 34 Constitutional Principles and provisions to Certiﬁed by the Constitutional Court as complying with 34 regulate the adoption of a ﬁnal constitution, including Constitutional Principles after it was ﬁrst rejected by that provisions for the certiﬁcation of the constitution by a Court and sent back to the Constitutional Assembly. newly created Constitutional Court. Contains a Bill of Rights protecting all basic human rights. Contains an extensive Bill of Rights protecting both civil and political as well as social and economic rights. Chapter 5 of the interim Constitution prescribed the basic framework and rules for the drafting of the ﬁnal Constitution. Section 68(1) provided that: ‘The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, shall be the Constitutional Assembly.’ In terms of section 68(2), read with sections 68(3) and 73(1), the Constitutional Assembly had to adopt a new constitutional text within two years of the ﬁrst sitting of the National Assembly. For such adoption, section 73(2) required a majority of at least two- thirds of all the members of the Constitutional Assembly. Section 71(2) then required that: ‘The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and eﬀect unless the Constitutional Court has certiﬁed that all the provisions of such text comply with the Constitutional Principles referred to in subsection (1) (a) [Constitutional Principles].’ 83 The Constitutional Principles, negotiated before the ﬁrst democratic election and thus included in the interim Constitution, contained wide-ranging provisions. In addition, the relatively open-ended language aﬀorded considerable power to the Constitutional Court to interpret and apply these provisions when it was called on to certify the ﬁnal Constitution. The basic structures and premises of a new constitutional text contemplated by the Constitutional Principles were described as follows by the Constitutional Court: (a) a constitutional democracy based on the supremacy of the Constitution protected by an independent judiciary; (b) a democratic system of government founded on openness, accountability and equality, with universal adult suﬀrage and regular elections; (c) a separation of powers between the legislature, executive and judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness; (d) the need for other appropriate checks on governmental power; (e) enjoyment of all universally accepted fundamental rights, freedoms and civil liberties protected by justiciable provisions in the NT [ﬁnal Constitution]; (f) one sovereign state structured at national, provincial and local levels, each of such levels being allocated appropriate and adequate powers to function eﬀectively; (g) the recognition and protection of the status, institution and role of traditional leadership; (h)a legal system which ensures equality of all persons before the law, which includes laws, programmes or activities that have as their objective the amelioration of the conditions of the disadvantaged, including those disadvantaged on grounds of race, colour or creed; (i) representative government embracing multi-party democracy, a common voters’ roll and, in general, proportional representation; (j) the protection of the NT against amendment save through special processes; (k) adequate provision for ﬁscal and ﬁnancial allocations to the provincial and local levels of government from revenue collected nationally; (l) the right of employers and employees to engage in collective bargaining and the right of every person to fair labour practices; (m) a non-partisan public service broadly representative of the South African community, serving all the members of the public in a fair, unbiased and impartial manner; and (n)security forces required to perform their functions in the national interest and prohibited from furthering or prejudicing party political interests. 84 The interim Constitution determined that the decision of the Constitutional Court certifying that the provisions of the new constitutional text complied with the Constitutional Principles would be ﬁnal and binding. It also prohibited any other court of law from enquiring into or pronouncing on the validity of the text. 85 It is important to note that once the Constitutional Court had certiﬁed the text of the ﬁnal Constitution, compliance or non-compliance of any aspect of the text with the Constitutional Principles could never be raised in any court of law again. This means that the Constitutional Principles, while of utmost importance in guiding the work of the Constitutional Assembly and the process of certiﬁcation by the Constitutional Court, have played their role and cannot now be relied on by any party who wishes to challenge an amendment to the Constitution. COUNTER POINT Was the constitution-making process undemocratic? The process which brought into being the 1996 Constitution has been criticised as being essentially undemocratic. Botha summarises – without necessarily endorsing – this argument as follows: 86 … the sovereignty of the people, in whose name the Constitution was adopted, was systematically weakened by a two-stage process that bound the people’s elected representatives to prior agreements between political elites. As a result, it might be argued, the voice of ‘the people’ was drowned out by the buzz of elite bargaining, the noisy arguments of lawyers and the pronouncements of judges. Sovereignty was splintered by a political deal which fragmented the constitution-making process and turned it into the preserve of lawyers, judges and technocrats. Constituent power was eﬀectively reduced to constituted power, which had to comply not only with the procedural requirements entrenched in the interim Constitution, but also had to heed the ‘solemn pact’ represented by the Constitutional Principles. The requirement of judicial certiﬁcation of the constitutional text, which is unprecedented in the history of constitutionalism, contributed further to the weakening of popular sovereignty. As we shall see, despite the constraints placed on the Constitutional Assembly, it could be argued that the provisions of the 1996 Constitution more or less reﬂected the relative inﬂuence and power of the negotiating parties in the Constitutional Assembly. As the ANC was by far the strongest party in the Constitutional Assembly, the large majority of provisions of the Constitution most closely reﬂect its vision for a democratic society. 1.3.3 Drafting and adoption of the ﬁnal 1996 Constitution The 1994 election – in which the Inkatha Freedom Party (IFP) along with all other major parties decided to take part after a last-minute deal – delivered an overwhelming majority for the ANC. However, the ANC did not gain the two-thirds majority required to write the Constitution without the support of other political parties. Table 1.2 indicates the ﬁnal election results and the number of seats gained by each party in the National Assembly. Table 1.2 The ﬁnal 1994 election results 87 Party Votes % Seats African National Congress (ANC) 12 237 655 62,65 252 National Party (NP) 03 983 690 20,39 082 Inkatha Freedom Party (IP) 02 058 294 10,54 043 Freedom Front (FF) 0 0424 555 02,17 009 Democratic Party (DP)88 0 0338 426 01,73 007 Pan Africanist Congress (PAC) 0 0243 478 01,25 005 African Christian Democratic Party (ACDP) 0 0088 104 00,45 002 Because the ANC did not obtain a two-thirds majority and because its negotiators were inclined to seek consensus, it tried hard to gain the necessary support for the various provisions from its long-standing opposition in the negotiating process, the NP. An enormous public participation programme and a programme of political discussions were also launched to ensure popular participation in the negotiating process which, it was believed, would lead to popular acceptance of the outcome reached. 89 Despite the Assembly’s commitment to transparency, meeting away from the watchful eye of the press was probably essential to resolve some of the most fundamental disagreements between the parties. Technical legal advisers also played an important role in formulating alternative options relating to some of the most controversial clauses. 90 However, it is widely accepted that the consensus, which ultimately emerged, favoured the dominant party – the ANC. 91 The interim Constitution contained several mechanisms to break any deadlocks in the negotiations. A panel of constitutional experts, consisting of lawyers, was empowered to advise the Assembly to try to resolve deadlocks. The interim Constitution also provided that if a draft constitution did not command two-thirds of the vote but did gain the support of the majority of the members, it could nevertheless become the country’s constitution if it was supported by 60% of the voters in a referendum. 92 However, neither of the major parties was keen to resort to the referendum option and eventually the Constitutional Assembly voted to pass the new Constitution with only two no votes and 10 abstentions. 93 COUNTER POINT Was the public participation programme inﬂuential in the constitution-making process? In a submission to the Constitutional Assembly, Sampson Moholoane – one of the more than two million South Africans who made submissions to the Constitutional Assembly – wrote: I want to stress one area which I believe as a citizen of South Africa one should have access to at all times. That is a welfare programme that will leave no South African from being able to aﬀord three square meals a day. It must be a citizen’s right to be able to have shelter and food even when he is not working, even if he is a destitute. The new Constitution must make this compulsory …94 Some commentators argue that the public participation programme run by the Constitutional Assembly was not decisive in inﬂuencing the form and content of the provisions of the ﬁnal Constitution as these submissions often contained vague wish lists concerned with problems of poverty and a low standard of living. Others point to the set of social and economic rights (discussed in chapter 16) as proof that the process did play an important role in giving voice to the aspirations of ordinary people in the drafting of the Constitution. After the Constitutional Assembly had adopted the ﬁnal Constitution, the document was submitted to the Constitutional Court for certiﬁcation. All political parties involved in the negotiations, except for the ANC and the PAC, lodged objections to the text with the Constitutional Court. Because the document had emerged through negotiations, many of these parties were not happy with certain clauses in the draft text and challenged these provisions in the hope that the Constitutional Court would refuse to certify the text for failing to comply with the 34 Constitutional Principles. The Constitutional Court saw its task as measuring the text of the ﬁnal Constitution against the Constitutional Principles to determine whether the text complied with those principles. The Court held that the Constitutional Principles had to be ‘applied purposively and teleologically to give expression to the commitment “to create a new order” based on “a sovereign and democratic constitutional state” in which “all citizens” are “able to enjoy and exercise their fundamental rights and freedoms” ’. 95 The Principles therefore had to be interpreted holistically and in a manner that was not too technically rigid. 96 The Constitutional Court evaluated the text of the ﬁnal Constitution in two distinct ways. First, it asked whether the basic structures and premises of the ﬁnal constitutional text were in accordance with those contemplated by the Constitutional Principles. If such basic structures and premises do not comply with what the [Constitutional Principles] contemplate in respect of a new constitution, certiﬁcation by this Court would have to be withheld. If the basic structures and premises of the [ﬁnal Constitution] do indeed comply with the [Constitutional Principles] then, and then only, does the second question arise. Do the details of the [ﬁnal Constitution] comply with all the [Constitutional Principles]? If the answer to the second question is in the negative, certiﬁcation by the Constitutional Court must fail because the [ﬁnal Constitution] cannot properly be said to comply with the [Constitutional Principles]. 97 In Certiﬁcation of the Constitution of the Republic of South Africa, 1996,98 the First Certiﬁcation judgment, the Constitutional Court found that the text did comply with the structural requirements. The Court then proceeded to consider the details of the text and found that it was not compatible with the Constitutional Principles on nine discrete grounds. It also set out in fairly unambiguous terms the changes that were necessary if the constitution was to meet the test of the Principles. 99 This meant that the Constitutional Assembly was found to have adopted an unconstitutional constitution and that the Assembly had to amend the text to comply with the Constitutional Court judgment. Although the constitution was therefore adopted by a democratically elected body, the Constitutional Court had the ﬁnal say on whether the provisions agreed on by this body were compliant with the Constitutional Principles negotiated by the unelected MPNF. As soon as the Constitutional Court decision was handed down, the Constitutional Assembly reassembled and amended the constitution as required by the Constitutional Court judgment. The Constitutional Court ﬁnally certiﬁed the amended draft of the constitution in Certiﬁcation of the Amended Text of the Constitution of the Republic of South Africa, 1996, the Second Certiﬁcation judgment, as being compliant with the 34 Constitutional Principles in December 1996. 100 President Nelson Mandela signed the ﬁnal version of the 1996 Constitution on 10 December 1996 and it came into eﬀect on 4 February 1997. It is this text – and its subsequent amendments – which forms the subject of this book. COUNTER POINT The unique birth of the 1996 Constitution Some commentators and politicians have argued that the way in which South Africa’s ﬁnal Constitution came into existence was unique in the world. A newly created Constitutional Court actually declared unconstitutional a constitution drafted by a democratically elected constitution-making body. However, so they argue, this approach represented a wise compromise that helped to allay the fears of the minority NP but that ultimately allowed the dominant ANC to have a determinative inﬂuence on the text ﬁnally agreed to and adopted. Perhaps, they say, the text would not have looked so very diﬀerent even if the Constitutional Assembly had not been required to comply with the 34 Constitutional Principles. This is because neither the NP nor the ANC could muster the support of two-thirds of the members of the National Assembly to push through their own agendas and were therefore forced to make compromises. 1.4 The South African Constitution of 1996 1.4.1 The transformative nature of the Constitution Formally, the South African Constitution, adopted by the Constitutional Assembly in 1996, creates a sovereign democratic state founded on the values of human dignity and the advancement of equality, non-racialism and non-sexism, the supremacy of the Constitution, the rule of law, universal adult suﬀrage and a multiparty system of democracy in which free and fair elections are held regularly. 101 Unlike the Westminster-style Constitutions of the colonial and apartheid eras, parliamentary sovereignty has been replaced by constitutional sovereignty. This means the Constitution is the supreme law of the Republic, law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulﬁlled. 102 It contains a detailed Bill of Rights that sets out a list of civil, political, social and economic rights. The Bill of Rights also places both a negative and a positive obligation on the state and – in some cases – a further obligation on private individuals and institutions, to respect, protect, promote and fulﬁl the rights in this Bill of Rights. 103 The courts – with the Constitutional Court at the apex – are the guardians of the Constitution in general and the Bill of Rights in particular. They have the power to declare invalid any act or any legislation inconsistent with it. To this end, the Constitution sets up three branches of government (the legislature, the executive and the judiciary) and a system of separation of powers between the three branches. It also guarantees the independence of the judicial branch in relation to the other two branches to allow the judiciary to interpret and enforce the law and the provisions of the Constitution without fear, favour or prejudice. The Constitution is avowedly a democratic one, guaranteeing the right to make political choices. This includes the speciﬁc rights to form a political party, to participate in the activities of that party and to campaign for a party or cause. Moreover, citizens have the right to free, fair and regular elections for any legislative body, as well as the right to stand for and hold public oﬀice and vote in those elections. The Constitution also recognises the institution, status and role of traditional leadership according to customary law. It makes provision for the functioning of a traditional authority that observes a system of customary law, subject to any applicable legislation and customs. The Constitution also enjoins courts to apply customary law when that law is applicable, but always subject to the Constitution and any legislation that speciﬁcally deals with customary law. 104 In addition, the Constitution provides authority for various legislatures to adopt legislation that provides for a role for traditional leadership as an institution at local level on matters aﬀecting local communities. To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law, national or provincial legislation may provide for the establishment of houses of traditional leaders and national legislation may establish a council of traditional leaders. 105 We will discuss these technical aspects of the Constitution in detail in subsequent chapters of this book. However, it is important to note that we must also view the Constitution of 1996 through a less formalistic lens to capture the unique nature of the document and to come to grips with the manner in which the Constitutional Court has interpreted its provisions. In particular, we must be alert to the fact that the Constitution was written in response to the social, economic and political history of South Africa and is often described as a transformative Constitution,106 a document committed to social, political, legal and economic transformation. In fact, the transformative nature of the South African Constitution has been conﬁrmed in several judgments of the Constitutional Court. 107 But what does this mean in practice? The Constitution is said to have set itself the mission of assisting with the transformation of society in the public and private spheres. It rejects ‘that part of the past which is disgracefully racist, authoritarian, insular, and repressive’ and facilitates a move towards a more democratic, universalistic, caring and aspirationally egalitarian society. 108 South African constitutionalism thus attempts to transform our society from one deeply divided by the legacy of a racist and unequal past into one based on democracy, social justice, equality, dignity and freedom. 109 Exactly how the end

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