Constitutional Law Chapter 1 PDF

Chapter1..... '- SouthAfrican constitutionallaw in context 1.1 Introduction · ·· ···············..........................................................................

Chapter1..... '- SouthAfrican constitutionallaw in context 1.1 Introduction · ·· ···············....................................................................... 3 1.2 Thehlstorlcal-legal context:fromcolonialconquest to democracy s........................................ 1.2.1 Pre-Uniondevelopments.................................................................... ·............................... 6 1.2.2 TheUnionof SouthAfricaandthe bifurcated state.......................................................... 9 1.3 Thetransitionto democracy...................................................................................................... 15 1.3.1 Therun-upto the firstdemocratic election.................................................................... 15 1.3.2 CODESA, the MPNFandthetwo-stage transition........................................................... 18 1.3.3 Draftingandadoptionof thefinal 1996Constitution.................................................... 23 1.4 TheSouthAfricanConstitution of 1996............................................'....................................... 26 1.4.1 Thetransformative natureof the Constitution................................................................ 26 1.4.2 Interpretation of the SouthAfricanConstitution............................................................. 32 1.4.3 Context:an inegalitarian societyanda one-party dominantdemocracy...................... 35 Summary.................................................................................................................................................. 38 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 regulatesthe 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 detailedprovisions 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 emerg~d 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 I Notallconstitutionscan be found In one or more formalwrittendocuments.Forexample,the Britishor Westminster Constitutionhas evolvedover a long period of time but has neverbeen fullycodifiedIn any written officialform. See De Smith,SAand Brazler,R (1994)Constitutionaland AdministrativeLaw 1th ed 6.  4 SOUTH AFRICAN CONSTITUTIONAL LAWIN CONTEXT can we ignore the broader global context within which the constitution operates. Constitutional law, therefore, can 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 (or elites) 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. Although judges in countries like South Africa are bound by previous precedent, this does not mean that they will not over time subtly reinterpret and reapply the text of the Constitution, 1996 (hereinafter referred to as 'the Constitution'). These judges, after all, are human beings who do not float above the world like disembodied ghosts completely untouched by 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-legalvalues and texts, including i the South African political context and history, to justify their decisions. PAUSEFOR Approachesto Interpretinga constitution In the first decision handed down by the Constitutional Court of South Africa in REFLECTION s v Zuma and Others,KentridgeJ signalledan awarenessof (but skirted)the issueof what judges should do whenconfrontedwith a constitutionaltext that containsopen- ended and vaguephraseswhen he remarked: I am well awareof the fallacyof supposingthat generallanguagemust havea single 'objective'meaning.NorIs It easyto avoidthe Influenceof one'spersonal Intellectualand moralpreconceptions. ButIt cannotbetoo stronglystressedthat 2 the Constitutiondoesnot meanwhateverwe mightwishIt to mean. One of the most perplexingquestions in law relatesto the mannerin whichjudges. t the often open-endedor evenvagueprovisionsof a constitution.If should rnterpre hI th Ill be. make the constitutionmeanwhateverthey w,s t to mean, ey w 1 JudgesmereY liticians and not judges.If they are not constrainedby the text of 0 accused of_being P xt legal but objectivecriteria,their decisionsmaylack the constituti~n or by other e r\ed and cannot be seento makeup the meaningof legitimacy as Judgesare not elec CONTINUED >». (1996)2CHRW244(5April R401 (SA);1995(l)SACR568 2 (CCTS/94)(1995] ZACC I; 1995 (2) SA642 (CC); 1995 (4) BCL 1995) para 17.  CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAWINCONTEXT 5 the constitutio~as they go along.This is whyjudgesoften state that they are constrained bythe textof the constitution and,if thetextis vague,whyjudgesresort to factorssuchas contextorthe historyof a countryto givemeaningto the provisions in a constitution. In this chapter, therefore, we 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 explorethe manner in which the South African Constitution came into being and the nature of South Africa's ~ansition from an authoritarian race-based autocracy to a constitutional democracy. We also explore the current social, political and economic context within which the Constitution must operate. We focus, in particular, on the legacy of apartheid and the role of political parties in South-Africa's constitutional 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 wrongly 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 AfricaAct, 1909 (the South Africa Actor 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 neither tenable nor credible. It ignores the fact that Khoi-San-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 colonially imposed markers when discussing. the historicalcontext 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, nevertheless, we 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 3 SeeChoudhry, s(2009)'He had a mandate': The South AfricanConstitutionalCourt and the AfricanNationalCongress In a dominantparty democracy ConstitutionalCourtReview2:1-86. ,. , SeeCurrie,I and De Waal,J(eds) (2001)1heNew Constitutionaland AdministrativeLaw,VolI ConstitutionalLaw 40-3. 5 SeeKuper,A (1997) Review: 1he MfecaneAftermath: ReconstructiveDeb~tesin_Southern African History by Carol Hainllton currentAnthropology38(3):471-3;Woolman,Sand Swanepoel,J Constitutionalhistory' in Woolman,Sand Bishop,M (eds) (2013)ConstltutlpnalLaw of South Africa2nd ed (rev service5) 2.6. 6 SOUTH AFRICAN CONSTITUTlONAL LAWIN CONTEXT which South Africa's 1996 Constitution emerged. 1his centring of colonial histo h... ry, owever. d oes re flect th e a b sence o f any mearungful decolorusation of knowledge in South Afr 1ca. ' 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 Cape and Natal colonies, the development of constitutional forms mirrored those of other British colonies with large European settler populations. What eventually emerged in these colonial enclaves in the nineteenth century were systems in which locally elected executives governed these territories, but subject to the British-appointed Governor-General power 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. 6 The governance structures therefore mirrored the Westminster system in place in Britain although the British government retained final control over the colonies. Nevertheless, these governing structures firmly established the principle of the supremacy of the legislature on South African soil. 7 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 proc;dures. Courts were not empowered to test the laws passed by the le~sla~e_aga_inst a bill of rights and could not declare legislation invalid even where that legislation mfnnged on the rights of citizens. -r h orth of the Cape, two Boer Republics (the Orange Free State and the South J.0 t e n th th Afncan Repu bli c, a 1so known as the Transvaal. Republic) emerge d m. e m1'd -mneteen epublics reJ·ected the Westminster system descnbed above. Under the century. Bo th th ese R ·tuti·ons of the United States France and the Ne th er lan d s, th e B oer influence o f th e cons tl , f. b d form of governance based on the principle of the separation o Republics em race al d 'dents The Orange Free State also had a justiciable Bill of s with directly e ecte pres1 d ali b ti power nteed rights of peaceful assembly, petition, property an equ ty e ore Rights that guara.. rul escribed for the amendment of the Orange Free State the law. In addition, ngtd es were pr Constitution of 18~4.e e fact that the Orange Free State Constitution formally recognised However, despite th.ew le islation, this power was used only one~. Moreover, the the right of courts to re~. g f limited application as they were interpreted to be h Const1tut1on were O tutionalism was thus protections ID t e l 9 1bis early tentative experiment in consn d reserved for white m~l~s on otion of racial citizens ip J· which later came to dominate constitutional Jawan prac ce ti b Ya n Afr" 10 in a unified South ica. 6 Currie and De WaaJ (2001) ~~ and the south African I~~= ·~!e~~~pnurnt o/tu Laws and constitution 72-83. See 7 Dugard, J (1978) Huma; t:~o) The Union of Soul: ~;tea~ Constlluttonal Law64-ghe oranse free State reviewed a Hahlo, H.R and Khan, ) Introduction to soul ournal 9:58, the Htsh Coun o nl on the ground that It violated 8 generally carpenter, G ( 19:Ze State ( 1892) eape La: ~thout permtsslo~ of th:;:::., the consdtudonal puarantee 9 In eassJm an~:::tc;;:;: 1:ns' from settllni:::::,Sthe court uph~~:~:;~: (1978) 19. Jaw whl;::r: of equality befo~:e::~ores of the voor~;:,;~lysis Jl. the gua , d In accordance h Ajrtca: A eantex had to be rea) The Constitution of SoUt JO ](Jug, H (2010  CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAWINCONTEXT 7 In the South African Republic (the Transvaal), the Constitution of 1858 was blatantly racist.It provided that 'the People desire to permit no equality between coloured people and whiteinhabitants, either in Church or State'.11 In the Transvaal, an attempt in 1892by Chief JusticeJGKotzeto review and strike down legislation passed by the legislature (Volksraad) on the basis that it conflicted with the Constitution created a constitutionalcrisis.12 President Paul Kruger rejected the right of the court to review and strike down legislation and eventuallyfired 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 introducedinto paradise to test God's word.13 Thoseparts of South Africanot directlysubjectedto colonialdomination exhibitedvarious formsofindigenousgovernancestructureslooselycentred on the concept of chiefdoms.These chiefdomsusuallyhad a similar governancehierarchyconsistingof a chief,a paramount chief or a king.Belowthem were headmen who were representativesofleading families.Headmen wereresponsiblefor affairswithin a defined geographicalarea and reported to the chief.The chief,together with his headmen, constituted a council.Belowthe chief and headmen were familyor kraal heads. The chief's role was to adjudicate disputes fairlyand to provide for the well-beingof his people by applying a livingcustomarylaw which developed through its applicationby chiefs.Toempower the chiefto meet his obligations,he wasvestedwith secular powersand was granted certain privilegesthat he was entitledto exercise.14 The selectionof a chiefwasrooted in ancestry and traditionalleaderswereborn into the rolerather than selected andtrained.Althoughchiefshad wide powers,thesewerenot unlimited.Chiefswere generally requiredto consult with their councillorsin certain matters and were alwaysrequired to act forthe benefit of their people.15 Potential challengesto the officeof the chiefalso acted as an incentiveto ensure that chiefs acted appropriately.16 Toeemergence of the Zulu Kingdom,which eventuallyspanned large parts of what is nowknown as KwaZulu-Natal,represents a modificationto this governancemodel. During the reignof King Shaka in the early part of the nineteenth century, the Kingmerged some 300formerly-independentchiefdoms into the Zulu Kingdom.Shakaordered his warriors to remainunmarried and controlled the organisation of his military regiments. This further weakenedtraditional kinship ties and the powers of the elders in favour of his central authority.However,the purported authoritarianrule of Shakastillreliedon a delicatesystem ofdelegatedchiefly powers. Shaka was assisted by a staffof chiefswho surrounded him in the royalkraal (a territorial dwellingunit with the house of the Kinglocated at the centre). WhileShaka needed the chiefs to execute his will, he was careful to limit their effective powersand it is argued that he stirred rivalry among them so that they would check one anotherbut never dispute his will.17 11 Dugard(1978)20. 12 Brown v LeydsNO (1897)4 OffRep 17. 13 Dugard(1978)24. 14 Bennett,TW(2004) Customary Law In South Africa 103. 15 Bennett(2004)104. 16 Bennett(2004)104-5. 17 Deftem,M (199S)Warfare,polldcalleadership,and stat~formation:Thecase of the Zul~Kingdom,1808-1879Ethnology 38(4):371-91at376-7.  8 SOUTH AFRICAN CONSTITUTIONAL LAWINCONTEXT ,"'____________________________.....,,..,...,.---... _ Different viewpoints ontheevaluation oflndlg~nous governance structures fcouNTER \ l Thereis a fundamental differencebetween thegovernance structures adoptedbythe \ POINT ' \\_ ___./· ,./ indigenous societiesof SouthAfricaandthe governance Britishcolonialregime.Somecommentators structures arguethat the indigenous imposedbythe structures valuedcommunity andtherelationships between individuals andgroups. Thismitigated whatmayappearfromthevantage pointofthemodern stateto beanautocratic and undemocratic arrangement. Chiefsreliedonthe goodwillof theirsubjects, so it is argued,andhencewererequired to rulewiselyandhumanely. Wherethis did not happen, chiefscouldberemoved andthisactedasa checkonthepowerofthechiefs. Others pointto theessentiallypatriarchal natureofthearrangement andcontend that thearrangement was,attheveryleast,deeply sexistasit negated theroleof women in society. Whenevaluating thevarious governancestructures ofthisera,it isdifficultto doso exceptthrough a distortedtwenty-first centurylens.However, it canbeargued thatthe governance structures oftraditional indigenous societies inSouth Africahavesomething to oftera SouthAfricanconstitutional lawscholarastheyareoftensaidto havebeen basedona kindof communalism. Thisindirectly findsresonance in theco-operative governm~nt provisionsin themodern SouthAfrican Constitution.Nevertheless, if we judgethesestructuresfromthemodern-day vantage point,theymayseemproblematic astheyarenotbasedonthesamedemocratic principlesthatwetakeforgranted ina modernconstitutionalstate. The indigenous governance structures 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 overnments proceeded apace - indigenous South Africanswere increasingly subjected to gth thority of the colonial powers. This led to a situation in which colonial governments e au d , h. became the primary source of the tradition_allea er s aut onty... the Glen Grey Act18was passed m the Cape Colony.ThisActeffectivelyexcluded 1894 In '.. Of Africans from the Cape Parliament. It also weakened the authority of the the vast maJonty. f b replacing them with. a system of government-appomted · dtstnct system. o f c h ie sdd"y the Act introduced separate ' reserve, areas wh ere Afr"1canswere councillors. In a. ;~n, were not selling their labour to white-owned institutions in cities supposed to st aY if Yd d the dispossession of indigenous land. 19 It assigned certain and towns. The Act spee eb u~ ks and others for whites under a distorted version of the geographical areas for use Y a~ Glen GreyAct,therefore,can be said to be a forenmner communal system of land tenure. e.. t and apartheid measures,especiallythe creation ssing segregatwms 20 of the more all-encompa f. n occupation after 1910. tori ally separate areas for A nc~. (th 'Lagden Commission') had developed a o ft ern c Omm1ss10n e d hi 1903 the Native AffalfS 0 th territorialsegregationofblackan w te.. By future South African union base~ ~ 2~ 1he Commission endorsed the practice VISIOD for a feature of pubhc hie. as a permanent mandatory 3 d ed 181. h idSouthAfrtcaA.fr/c 18 Act 25 of 189~-H (1987) South Afr/ca: A Moder; J-list~~~c:i governmentInpos1-aparte 19 Davenport, 1 n L (I 999) Chiefsan rura. ks p and Ntsebcza,. 20 Hendrie ( )· _126 at 102. ifpolitical Science 4 1 99 21 ;avenport (1987) 152.  CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAWINCONTEXT 9 of creating'native reserves' and accepted the notion that this involvedspecial obligations on theirpart to the colonialstate. 'Natives'were seen as havingspecialrightsto these pieces ofreservedland as the 'ancestral land held by their forefathers'.'Nativereserves'were held communallyand administered by tribal chiefs who were said to have transferred their sovereignrights over land and their absolute political authority to the Crown through a processof 'peacefulannexation'.22 The assumptionof the 'peacefulannexation' of land was a fictionwhich served the interests of the colonialrulers. Thesedevelopmentsset the scene for the formation of a bifurcatedstate when the various territories now known as South Africawere unified into the Union of South Africain 1910 and can clearlybe seen as the precursorfor the elaborate systemof apartheid.23 PAUSE FOR Recognition oftraditional governance structures In theConstitution. REFLECTION Constitutional lawtextbooks haveoftenignored thegovernanc~ structures of indigenou~ Sou~Africans aswellasthecustomary lawappliedbychiefsduringthe pre-Union period.Theyhavetendedto focusexclusively. onthe imposition of theWestminster. model. by the Britishand\ onthe importationof Roman-Dutch andEnglish common. law.. Thisis notsurprising assuchtextbooks havebeenwrittenfroma Western perspective. , Today,theConstitution partlyrecognisestraditional governance stru~ures. However, :· as weshall. see,. thesetraditionalgovernance.. structures weretransformed. in their encounter - with the.. colonial rulersand this affectedtheir development These developme~ts helpt~ e_xplainthe presen~ arrangement in SouthAfricai~ which. traditionalleadersandthe application of customary lawaremadesubjectto the - provisionso~the 1996Constitution. ,· ' ' 1.2.2 The Union of South Africa and the bifurcated state. Afterthe Britishdefeated the armies of the BoerRepublicsduring the Anglo-BoerWar of 1899-1902,the territory now knownas SouthAfricalargelycame under the influenceofthe Britishgovernment.However,as part of a policyof grantingself-ruleto whitecolonistsin its variouscolonies,Britain facilitatednegotiationsthat led to the formationof the Union of SouthAfricain 1910.BlackSouthAfricanswerenot invitedto takepart in these negotiations. Thisprocess of negotiation resulted in the drafting of the South AfricaAct (the Union Constitution).ThisActbrought togetherthe foursettlercolonies- Cape,Natal,OrangeFree. Stateand Transvaal- as well as the variousindigenousgroupingsin SouthAfricain a single unitarystate known as the Union of SouthAfrica.TheConstitutionestablishingthe Union in essencegranted limitedparliamentarydemocracyto the whiteminority(onlymen were allowedthe vote)within the borders of present-daySouthAfrica..However,this settlement largelyignoredthe politicalaspirationsof indigenousS~uthAfricansand subjugatedthe blackmajorityto autocraticadministrativerule. 22 Woolmanand Swanepoel (2013)2.14. 23 IOug(2010)8; Davenport(1987)112-15;Mamdanl,M ( 1996)Citizenand Subject:Contemporary Africaand theLegacy ofLateColonialism67-9. 10 SOUTH AFRICAN CONSTITUTIONAL LAWINCONTEXT It is true that the drafters of the Union Constitution reached a compromise that allo the Cape to retain its provision for limited voting rights for black citizens. 24 However W~d northern provinces were allowed to exclu~e all participation by black South Africans i~ :he electoral process. The retention of this very limited franchise for black South Africans in th: Cape did not change the essentially racist and paternalistic nature of the foundin Constitution of South Africa. African society was presented as essentially 'traditional' an! was to be governed by chiefs under the paternalistic 'protection' of the white government.2s 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. 26 Traditional versions of South Africa's constitutional history produced before 1994 ignore this bifurcated nature of the South African state between 1910 and 1994.27 The Union 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, however, was 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 theory still bound by the provisions of the Colonial Laws Validity Act, 1865. 28 This was, in t the, Union Parliament coul d not leg1s. I ate extraterntona.. II y or m. a manner meant t a h h'1ch h ad b een ma d e app Iica bl e m South of the British Parliament w repugnant to any Act.. All bills assed by the South African Parliament had to be sent to the Governor- Afnca. p t u·ve of the British Crown) for assent before they could become law. G en eral. (as represen. a. no control was ever exercised and the powers referred to above were In practice, little or d by the Statute ofWestminster. 29 fi re they were scrappe... never use d b e O f ses ·nthe Union Constitution required Parliament to use all number o c Iau. Second, a sm th uld be amended. These entrenched sections protected a special procedure before ey_cothe CapeJo and the guarantee of the equality of the two the limited franchise for blacks m British subject and who owned property worth at least 25 man over the age of21 who was a s nted the vote. AlthoughfewbJacltmenquallfted, 24 In the Cape Colony, ev:ry lary of at least 50 pounds per year ~athfs:as retained after uniflcadon. Similar Pl'OYlalona applied to the Natal Co ony. of South Afr/can Legal Culture ;,2~: pounds or who receive a sa i tlon in the Cape franchise an h ther twO provinces were not allowed to vote. there was no formal ra~ial re~::ever, black men and women ~ 936: Fear,Fal!OU' and Pn.Jud'" 22. 25 Chanock, M (200 I) 7he Making d Afr "kaansesraatsf'f182de uitS36-7, 26 J(]ug (2010) 9. DA and VilJoen, HP (1988) Sul - I 27 See, for example, Basson, 28 8 & 29 Vic~-i~6!aal (2001) 44-5. 29 curriefthan Union Constitution. 30 S35o e  CHAPTER 1 SOUTI-I AFRICAN co'NSTITUTIONAL LAWINCONTEXT 11. ' officiallanguages (English and Dutch). 31 Thus, section 152 of the Union Constitution required that any alteration of the above sections (as ~ell as section 1·52itself) would be validonlyif the bill was passed by both Houses of Parliament sittingtogether and agreed to at the third reading of the bill by not 'lessth'ai;itwo-thirdsof the total number of members of both Houses.32 Despitethe procedural protection of the limited franchise,allAfricanvoters ' I (thosewho livedin the Cape Provinceand.had retained their right to vote in the deal struck in 1909)were nevertheless removed from the common voters' roll and given separate representationin 1936.33 ' ' ' '.. ' The Union's first full-blown constitutional crisis arose after the National Party (NP) narrowlywon the parliamentary election in 1948on the basis, among others, that it would imposeabsolute racial segregation on South Africa.In 1951,the NP attempted to remove 'coloured'voter~from the common voters' roll by adopting the SeparateRepresentationof VotersAct.34 A group of voters challenged the Act on the basis that the procedure required bysection152of the Union Constitutionwas not used. In Harris'andOthersv Ministerof the 35 Interiorand ,(1.nother, a unanimous Appellate.Division(AD) found that the Separate Representationof VotersActwas of no force b·ecausethe correct procedure had not been used to pass the amendments. Afterfurther legislativeand judicial manoeuvres, in which the NPwas again thwarted, it increased the size of the ADfrom fiveto 11judges and also increasedthe size of the Senate: , ', , ' Whenthis legis\ativemovewas againchallengedin » CONTINUED 91 Rm c:erttJicatlon para34. 92 Rm Certificationparas36-7. 93 PlntCerttficatlonpara44. · 94 (CCT23/96)(1996)ZACC26; 1996(4) SA744(CC);1996(10)BCLR1253(CC)(6 September 1996). 95 SeeRm Certificationpara482. 96 (CCT37/96) (1996)ZACC24; 1997(1) BCLRl; 1997(2) SA97 (CC)(4 December 1996). 26 SOUTH AFRICAN CONSTITUTIONAL LAWIN CONTEXT represented a wisecomp~omise that helpedto allaythe fearsof the minorityNPbut that ultimatelyallowedthe dominantANCto havea determinative influenceon thetext finallyagreedto andadopted.Perhaps, theysay,the textwouldnot havelookedsovery differentevenif the Constitutional Assemblyhadnot beenrequiredto complywiththe 34 Constitutional Principles. Thisis becauseneitherthe NPnortheANCcouldmuster the supportof two-thirdsof the membersof the NationalAssemblyto pushthrough theirownagendasandwerethereforeforcedto makecompromises. 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 oflaw, universal adult suffrage and a multi-party system of democracy in which free and fair elections are held regularly. 97 Unlike the Westminster-style constitutions of the colonial an_dapartheid 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. 98 It contains a detailed Bill of Rights that sets out a list of civil, political, social and economic rights. Toe 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 ofRights. 99 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 avowe~y ~ democratic one,_guar~nteeing the right of citizens freely to make political choices. Tots mcludes the specific ~1ghts to form a political party, to participate in the activities of that party and to ca~pa1gn for a p~ or cause. Moreover, citizens have the right to free, fair and regular elections for any legislative body, as well as th eng· ht to stand for and hold public office and vote in those elections. status an d ro 1e o f tra di tional leadership titution also recognises the institution, Th e C ons ' th e fu nctiorung o f a tra di tional authority law It makes provision 1or accor di ng to cus t o mary ustomary law, subject to any app 1cabl e 1egislation and customs 1· that observes a sys t em OfC th 1.. also en· oins courts to apply customary law when at aw is applicable, but Toe ConSt1~tlon th C J f1tution and any legislation that specifically deals with customary always subJect to e ons 97 s 1 of the Constitution. 98 s 2 of the Constitution. 99 s 7 (2) of the Constitution.  CHAPTER 1 SOUTH AFRICAN LAWINCONTEXT 27 CONSTITUTIONAL law.100 In addition, the Constitution provides authority for various legislatures to adopt legislationthat provides for a role for traditional leadership as an institution at local levelon mattersaffectinglocal communities. To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a systemof customarylaw,national or provinciallegislationmay provideforthe establishment ofhousesof traditional leaders and national legislationmay establish a councilof traditional 101 leaders. We will discuss these technical aspects of the Constitution in detail in subsequent chaptersof this book. However;it is important to note that we must alsoviewthe Constitution of 1996through a less formalisticlens 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 alett to the fact that the Constitution was written in responseto the social, economic and politicalhistory of South Africaand is often described as a transformative Constitution,102 a document committed to social, political, legal and economictransformation. In fact,the transformative nature of the South AfricanConstitutionhas been confirmed in severaljudgments of the Constitutional Court.103 But what does this mean in practice? TheConstitutionis said to have set itselfthe mission of assistingwith the transformation of societyin the public and private spheres.It rejects'that part of the past whichis disgracefully racist, authoritarian, insular, and repressive' and facilitates a move.towards a more democratic,universalistic, caring and aspirationallyegalitarian society.104 South African constitutionalismthus attempts to transform our societyfrom one deeply divided by the legacyof a racist and unequal past into one based on democracy,socialjustice, equality, dignityand freedom.105 Exactlyhow the end product of this metamorphosisshould lookand when, if ever,it will be achievedmust necessarily remain uncertain and dependent on the outcomes of this continuousinteraction. However,the outcome should simultaneouslynot be conceivedas sovagueas to preclude meaningful and deliberateparticipationin the process.Traditional liberalconstitutions are said to authorise, regulate and check the exerciseof public power, butsupposedlyallowvoters and politiciansto decide in which directiona societywillmove 100 S211of the Constitution. 101 S 212of the Constitution. 102 SeeKlare,K(1998)Legalculture and transformative constitutionalismSAJHR14(1):146-88;Chaslcalson,A (2000)The third BramFischer lecture: Human dignity as a foundational value of our constitutional order SAJHR~6(2):193-205at 199;Pleterse,M (2005)What do we mean when we talk about transformativeconstitutionalism?SA PublicLaw20:155- 66; Langa, p (2006) Transformative constitutionalism SLR 17(3):351-60; Moseneke, D (2009) Transformative constitutionalism: Its implications for the law of contract SLR 20(1):3-13 at 4; Davis, DM and Klare, K (2010) Transforrnativeconstitutionalism and the common and customary law SAJHR26(3):403-509. 103 Mlcontwanav NelsonMandelaMetropolitanMunicipalityand Another;Bissettand Othersv BuffaloCityMunicipality and Others;TransferRightsActionCampaignand OthersII MEG,LocalGovernmentand Housing,Gauteng,and Others (Kwazulu-NatalLaw Societyand MsunduzlMunicipalityas amid curiae) (CCT57/03) ZACC9; 2005(1) SA530 (CC);2005(2) BCLR150(CC)(6 October 2004)para 81;SoobramoneyII Ministerof Health(Kwazulu-Natal)(CCT32/97) (1997)ZACC17; 1998(1) SA765 (CC);1997(12)BCLR1696(CC)(27November 1997)para 8; InvestigatingDirectorate: SeriousEconomic Offencesand Others v Hyundai Motor Distributors(Pty) Ltd and OthersIn re: Hyundai Motor Dfstrtbutors(Pty)Ltd and Othersv Smit NO and Others(CCTl/00) ZACC12;2000(10)BCLR1079(CC);2001( 1) SAS45(CC)(25August2000)para21., ' ' ' ' 104 S v Makwanyaneand Another (CCT3/94) [1995)ZACC3; 1995(6) BCLR665 (CC); 1995(3) SA391 (CC); 1995 (2) SACR1 (CC)(6 June 1995)para 262.. ! 105 SeeDavia,D (1999)Democracyand Deliberation:Transformationand the SouthAfricanLegalOrder44. 28 SOUTH AFRICAN CONSTITUTIONAL LAWIN CONTEXT and at what pace that movement will occur. By contrast, the South African Constitution is said to contain a commitment to creating a society that will look fundamentally different from the one that existed at the time when the Constitution was being drafted. When interpreting the text of the Constitution, it is therefore necessary to look both backward and forward. We need to look backwards at the history of South Africa and to ask what negative aspects of our past this document aimed to address and to transform, to what extent the transformation was required and at what pace. At the same time, the Constitution also signals a tentativeness, suggesting that it is a permanent work-in-progress, always looking forward, always subject to revision and improvement to try to achieve the society it envisages. 106 This vision of the transformative nature of the Constitution is at least partly derived from the text of the Constitution itself. The text acknowledges that the new dispensation arose in a particular historical context and requires an acknowledgement of the effects of past and ongoing injustice. The notion that the Constitution is a transformative document is also captured by referring to it as a post-liberal document. This is so because while the Constitution contains many provisions that mirror provisions in other constitutions in liberal democracies (such as the US Constitution), it also departs from liberalism as it envisages a move towards an 'empowered' model of democracy. 107The transformative or post-liberal nature of the South African Constitution manifests with reference to several unique characteristics of the document which were first highlighted by Klare: it is social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural and self-conscious about its historical setting and transformative role and rnission:1oa Social rights and a substandve concept of equality: The Constitution endorses the view that political freedom and socio-economic justice are inextricably linked. There is therefore a close connection between political rights, such as freedom of expression and the right to vote, and socio-economic rights such as the right to housing and health care. Democracy and the de~ocratic rights ~at make ?emocra~ possible only have meaning if they lead to the creation of a new kind of society in which people actually have the social resources they need to exercise their rights meaningfully. Tue chief purpose of classical liberal bills of rights is to ensure that the government of the day does not interfere with the liberty of individuals and the property rights of the middle classes. By contrast, the South African Constitution embodies the idea that the power of the community can (and must) be deployed to achieve goals consistent with freedom. This is why the Constitution contains a pervasive and overriding commitment to the achievement of substantive (redistributive) equality. Affirmative state duties: A traditional liberal bill of rights places only negative restraints on a government to stop it from interf~~ing with the liberty of individuals. By contrast, the South African Bill of Rights, in addition to negative restraints, also unposes :postttve The Constitution's historically situated character i. 106 See ss 1 and 7 of the Constitution. le 1he Azantan People's Organization Constitutional Court judgments. See, for i;~!,; CCT17/96) (1996)ZACC16; 1996(8 President of the Republic of South A.fr~caa7 journey from the shame of the past to the (CC) (25 July 1996) para 50: 'con~t~ ~n:acllltate the transition to a new democra:;c '(w]hat the Constitution seeks to o s o retatlon of the South AfricanCona tu A bridge too far7 History as context In the lnterp 107 Klare (1998) 152. l08 See generally Klare (1998) 153-6,  CHAPTER 1 SOUTH AFRICAN LAWINCONTEXT 29 CONSTITUTIONAL or affirmative duties on the state to combat poverty and promote social welfare, to assist people in authentically exercising and enjoying their constitutional rights, and to facilitate and support individual self-realisation. 109 For example, the Bill of Rights places a positive duty on the state to take reasonable steps progressively to ensure access to socio-economic welfare in areas such as housing, health care, food, water, social security and the protection of children. 110 Horizontality: Traditional bills of rights in liberal constitutions are said to be concerned with the vertical relationship between citizens and the state, limiting the power of the state to interfere in the lives of individuals or private institutions. However, the South AfricanBill of Rights has an explicit horizontal application.This means that in certain cases the Bill of Rights does not only limit the power of the state to interfere in the lives ofindividuals or citizens, but also binds individuals and institutions and, in some cases, requires them to respect the rights of others. Thus section 8(2) states that the Billof Rights binds private parties in certain cases. Private parties are expressly barred from engaging in invidious discrimination and government is obliged to enact legislation enforcing that 111 command. Moreo~er, section 39(2) requires courts to take into account the spirit, purport and objects of the Bill of Rights when they interpret and develop the common law and customary law which, to a large degr~e, regulate private relationships. Participatorygovernance:As we shall see, the nature of the democracy established by the Constitution focuses on the participation of citizens at all levels and at all stages of decision-making. The Constitution envisages inclusive, accountable, participatory, decentralised and transparent institutions of governance and contemplates that government will actively promote and deepen a culture of democracy. 112 Multiculturalism: South Africa is a multicultural society and it is said that the Constitution celebrates multiculturalism and diversity within a framework of national reconciliation and ubuntu. 113 It expressly promotes gender justice and rights for vulnerable and victimised groups and identities, explicitlyincluding protections for gay men, lesbians and the disabled. It also protects language diversityand respect for cultural tradition and diversity and the 'right to be different'.114 Historical self-consciousness: The Constitution is said to reject the notion of a constitution as a social contract entered into by citizens, presenting a snapshot of that societyat the time of its conclusion and requiring the protection of the status quo at the time of its adoption. Unlike traditional liberal constitutions, it is said to reject the notion that its aim is to protect the pre-existing hierarchy and distribution of social and economic power. It accepts that legal and political institutions are chosen, not 109 See17(2) ofthe Constitution, which states that the state has a duty to respect, protect,promote and fulfilthe rights in theBillof Rights,and Ministerof Financeand Otherv VanHeerden(CCT63/03) [2004)ZACC3; 2004(6) SA121(CC); 2004(ll)BCLR 1125(CC)(29 July2004)para 24. 110 See11 26-8 of the Constitution. ' 111 See19(4)oftheConstitution.. , 112 See.generally,ss40(2) and 41(1).See also s 32 (accessto information);s 33 (rightto fairand just administrativeaction); and 34 and 38 (access to courts) ands 234(charters ofrlghts). 113 Afatwanyaneparas224and263. ' '.. 114SeeNationalCoalitionfor Gayand LesbianEqualityand Anotherv Ministerof Justiceand Others(CCTl1/98) (1998).7.Ar.C 15;1999(1) SA6 (CC);1998(12) BCLR1517(CC)(9 October 1998)para 135:'TheConstitutionacknowledgesthe ~of humanbeings(genetic and socio-cultural),afflnns the right to be different,and celebrates the diversity Didion.' 30 SOUTH AFRICAN CONSTITUTIONAL LAWIN CONTEXT given, that democracy must be periodically reinvented, and that the _Constitution itself must constantly be interpreted and reinterpreted to reflect the evolVIng understandin of the needs and problems a society faces. The 1996 text also contain_snumerous passage! acknowledging that constitutional provisions are not self-executmg, but are evoIVin. d.ll5 ' texts that must be interpreted and app l 1e g Transformatlve constltutlonallsm andIts critics Somecriticshavepointedoutthat despitethetransformative natureof the Constitution, SouthAfricansocietyhas not beenradicallytransformedoverthe past 25 years.They arguethat transformative constitutionalism is an ideal that finds little applicationin practice.Othercritics have gonefurther, by questioningwhether transformative constitutionalism is a conceptthat can respondadequatelyto SouthAfrica'sspecific realities.Forexample,JoelModirihasarguedthat: lilt would be an overstatement to deny that the constitutional project remains constrained by the context of Its emergence, the reigning legal and political culture, and by the nature of modem law to draw lines (rationalisation), give effect to a decision (fixity) and perform sovereign acts (closure). In other words, while transformative constitutional discourse can open debate within the governing social rules, its ability to contest the actual rules themselves Is severely limited. If the varying approaches... (to transformative constltutionalism] implicitly discouraged blind triumphalist faith in the constitution, they nevertheless remained markedly optimistic about Its 'transformative' and 'progressive' possibilities and thus did not occupy themselves with the fashioning of radical alternatives grounded In and sensitive to the.specific social, cultural and historical realities of South Africa. Recent studies have furthermore revealed the operation of a hierarchy In terms of which the development and conceptualisation of knowledge on modem constitutionalism Is framed through the experiences,institutions and epistemologies of the Global North, with the Global South relegated to a lower, underdevelopedand purely mimetic tier. This attachment to hegemonic North American and European legal traditions and schools of thought reproduces global patterns of legal knowledgethat perpetuatethe marginality of Southern law and African jurisprudential approaches In knowledge production on SQuthAfrican constltutionallsm. 118 The recognition by South African courts that the South African Constitution is transfonnative in nature has not resulted in a radical transformation of society. As noted below, South Africa remains an inegalitarian society in which social and econom_ic inequality largely tracks along race and gender lines. There remains a gap between what 1s promised in the Constitution and what has actually been achieved. The Constitution contains ideals which a functioning democracy should strive to achieve in order to establish a more Just society. These ideals 115 S l(a)·s7(l);s39(l)oftheConstitutlon. d SA/HRl4(l) 116 Moc:U:i, J (2018) Conquest and constitutionallsm: first thoughts on an alternative Jurlspru ence : 310.  CHAPTER 1 SOUTH AFRICAN LAWINCONTEXT 31 CONSTITUTION~L includethe ideal of radicallytransformingSouthAfricato becomea m~reegalitariansociety in whichracism,sexism,homophobia and classprejudicesand economicmarginalisation are reducedor eradicated. Respectfor the values of human dignity,equalityand freedom underpinsthis ideal.TheConstitutioncontainsvariousmechanisms(includinga systemof, separationof powersand checksand balancesas wellas powersfor courtsto reviewand set asideunconstitutionalacts) aimed at empoweringthe electedgovernmentofthe dayto work to achievethese ideals. Some critic'sargue that the limited success of transformative constitutionalismmust be placed squarelyat the door ofthe electedgovernmentat national, provincialand local level,who have not used their power effectivelyto effectradical social and economicchange. An example of this argument is presented by PennyAndrewswho arguesthat: Therearemany reasons forthe country'sinabilityto re~ise the rights.setout on the Constitution. They include a lack of political will on the part of all spheres of government (national, provincial, and local), bureaucratic i~differen~e or · incompetence, corruptionand mismanagement,Otherproblem;concern either ineptitude of the so-called Chapter9 institutions,establishedto strengthenthe country'sconstitutionaldemocracy,includingthe H~an RightsC~mmissionand the Gender Commission. And the failure of government to implement their recommendations.Thereasonsalsorelate'to thefailureofgo~ernnientto implement ' courtdecisions.117 ' ·, Othershavearguedthat in order forthe conceptto be effectivewouldrequirea veryspecific commitmentto redressfromthose interpretingand enforcingthe Constitution.Buta shared consciousnessof the injusticesof the past and an acceptanceof the radicalsteps necessary · to addressthis, so it is argued,is lackingin SouthAfrica.SaneleSibanda,providesa succinct. versionof this argumentwhen he states: ' }Vithoutthe translationof the goals of transformationinto explicitlyentrenched constitutionalprovisions that demandreconstruction,'redistributionand more ,· , I ' ' deeply democratic popular participation that go beyond the Bill of Rights,it is arguablethat transformativeconstitutionalismwas alwaysgoing to struggleto , '. entrenchitself, particularlyin lightof the overallconstitutional schemewhichis a liberaldemocraticone. Thisassertionis basedon thefactthatmethodologically, in a Constitutionthat structurally and institutionally accords with the basic tenets of. liberal democratic constitutionalism (a few'innovations notwithstanding), transformativeconstitutionalism would, in a practical sense, only appearto be , achievable through sustained and purposeful legal and judicial interpretation demandinga sharedconsciousness.Therefore,it is my contentionthatwithin !he contextof SouthAfrica'sprevailingconservativelegal culture,the extentto which the success of transformativeconstitutionalism as an enterprisedependson legal and judicial interpretation leav~s the proje~t in danger of remaining an inc~mplete project at best. 118. ' 117 Andrews, p (2017,4 July)SouthAfrica'sproblems lie in politicalnegligence,not its ConstitutionTheConversation accessedon 6 August2019at https://theconversation.com/south-africas-problems-lle-in-polltical-negllgence- not-lts-constitutlon-80474, / ' ' ,... 118 Stbanda, s (2011)Not Purpose-made!TransformativeConstltutlonallsm,Post-IndependenceConstltutionallsmand. theStruggleto EradicatePovertyStellenbosch LawReview(Jan 2011)22(3):482-500at 493.(Footnotesomitted] 32 SOUTH AFRICAN cqNSTITUTIONAL LAWINCONTEXT 1.4.2 Interpretation of the South African Constitution When interpreting the Constitution, the starting point will always be the text of the relevan provisions in the Constitution. However, we should not read these provisions in isolation~ instead, we should assume that the various provisions of the text are in harmony with on~ another and we should read it holistically. The specific textual provisions alone will not always provide a clear and definitive answer as to their meaning. Courts are required to interpret and apply these provisions and, through this interpretation, the meaning of the Constitution will evolve over time. A fundamental question arises regarding the power of judges to interpret the text and to what extent contextual factors, as well as the normative commitment of judges, may and should play a role in the interpretative exercise. On the one hand, many of the justices of the Constitutional Court have tentatively acknowledged the open-ended nature of the language of the Constitution and the inherent need to refer to extra-legal values and texts, including the South African political context and history, to justify their decisions. 1.19 On the other hand, some judges have warned that it is not permissible to revert to general philosophical or moral values to try to flesh out their understanding of the constitutional text. 120 The Constitutional Court has often declared its commitment to the centrality of the constitutional text in constitutional interpretation. However, the Court has also acknowledged that any such interpretation can be conducted only with the assistance of objective or objectively determinable criteria, or, at the very least, with reference to criteria that are somehow distanced from the personal views, opinions and political philosophy of the presiding judge. 121 The criteria the Constitutional Court employs to do the work in the interpretation of the constitutional text have varied. The Court has resorted to an array of traditional devices such as references to common law, its own precedent established in previous judgments, the history of the drafting of the Constitution, international law or foreign case law, and canons of constitutional interpretation. At times, the Court has also resorted to less traditional factors such as the surrounding circumstances of a case, the social context of a case, the economic, political and social environment in South Africa (in.eluding the continued existence of vast inequalities between the rich and the poor) or the general history out of which the Constitution was born. Makwanyane para 321 per O'Regan J: the language of fundamental rights Is 'broad and capable of different 119 interpretations'; para 207 per Kriegler J: '... it would be foolis~ to deny that the Judicial process, especially In the field. dj di·cau·on calls for value judgments In which extra-legal considerations may loom large'; para 265 o f consutut 1ona 1a u , stitution must be examined with reference, Inter alla, to the text, context and the 'factual per Mahome d DP : Th e Con. seeking the kind o f va Iues w h lch should Inform the coun's. id r· s'· para 382 per Sachs J: 'm and h1storlca 1 cons era ion h" be , ti1 ,, tional and humane adjudicatory approac must pre,erred. approach to Interpretation e ra K. ler J·, methods to be used are essentially legal, not moral or phllosophica1 120 See also Makwanyane para 20 7 per n;gdl.~ ;~ocess especially In the field of constitutional adjudication, calls for 1... It would be foolish to deny t 1mt t I1e u ~ tlons ~ay loom large. Nevertheless the starting point, the framework value judgments In which extra-legal cons er: ,. Jara 349 per Sachs J: 'Our function Is to Interpret the text of the 1 and the outcome of the exercise muS t be leg, ' 1. al views on this fraught subject might be, our response rnust Constitution as It stands. Accordingly, whatever ~.l'.rp;;:r:::nce between a political election made by a legislative organ be a purely legal one'; para 265 per Mahomed DI 'constitutional Court, Is crucial'. and decisions reached by a judicial organ, like the I by the judges of the Constitutional Court. See Klare (1998) 172-87 for examples of this kind of reason ng 121  CHAPTER 1 SOUTH AFRICAN LAWINCONTEXT 33 CONSTITUTIONAL PAUSE FOR TheInterpretative approach oftheConstitutional Court 1-------- REFLECTIONIn S v Makwanyane andAnother,Mahomed DPsummarised the approachof the Constitutional Courtto theinterpretation oftheConstitution asfollows: WhattheConstitutional CourtIs required to doIn orderto resolve anissue,is to examine the relevantprovisions of theConstitution, theirtextandtheircontext; the l_nterplay betweenthe differentprovisions; legalprecedent relevantto the resolution of theproblem bothin SouthAfricaandabroad; thedomesticcommon lawandpublicinternational lawimpacting onits possiblesolution;factualand historicalconsiderations bearingontheproblem; thesignificance andmeaning of thelanguage usedintherelevant provisions; thecontentandthesweepof the ethosexpressed in the structureof the Constitution; the balanceto be struck between differentandsometimes potentially conflicting considerations reflected in itstext;andbya judiciousinterpretationandassessment of all thesefactors 122 to determine whattheConstitutionpermitsandwhatit prohibits. It will be difficult to claim that the Constitutional Court has systematically developed a clear and unambiguous approach to the interpretation of the Constitution in general or even of the provisions of the Bill of Rights more specifically. Nevertheless, it is safe to say that apart from its use of traditional methods of interpretation to signal the 'legal' (as opposed to 'political') nature of its task, the Court has also developed what can loosely be termed a 'contextual' or 'teleological'. approach to constitutional interpretation. In applying its contextual approach, the Court has often found guidance in the more recent decisions of the Canadian Supreme Court. 123 In line with Canadian Supreme Court jurisprudence, the Court has often referred to the historical context in which the Constitution was adopted. Of course, it cannot be said that the Court always uses a contextual approach, or that it always uses it in the same manner, _oreven that the different judges understand and apply this approach in the same way. Yet, in case after case, the various judges of the Court have carefullysketched the political and social context within which the Constitution operates before proceeding to give an interpretation of the relevant provision of the Constitution. 122 (CCTJ/94) ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665; 1995 (3) SA 391 (CC); 1995 (2) SACR l (CC) (6 June 1995) para 265. 123 See the reference to R v Big M Drug Mart Ltd (1985) 18 DLR (4th) at 321 in S v Zuma and Others(CCT 5/94); ZACCl; 1995 (2) SA 642 (CC); 1995 (4) BCLR401 (CC) (5 April 1995) para 15; Presidentof the Republicof South Africa and Another v Hugo (CCT 11/96); ZACC 4; 1997 (4) SA l (CC); 1997 (6) BCLR708 (CC) (18 April 1997) para 41; Prinsloov Van der LindeandAnother(CCI'4/96) (1997]ZACC5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR759 (CC) (18 April 1997) para 32. On the use of history, see, for example, Zuma para 15 where Kentridge I stated that'... regard must be paid to the legal history, traditions and usages of the country concerned...'; Makwanyanepara 39 where Chaskalscin P stated that 'we are required to construe the South African Constitution... with due regard to ourlegal system, our history andcircumstances...'; para 264 where Mahomed DP stated 'It is against this historical background and ethos that the constitutionality of capital punishment must be determined.'; and paras 322-23 where O'Regan I stated that '... the values urged upon the Court are not those that have Informed our past...' and in'... interpreting the rights enshrined In Chapter 31 therefore, the Court is directed to the future'. See also ExecutiveCouncilof the WesternCape Legislat1tre andOthersv Presidentof the Republicof South Africaand Others(CCT27/95) (1995]ZACC8; 1995 (4) SA877 (CC); 1995 (lo) BCLR1289 (CC) (22 September 1995) para 61 where Chaskalson P stated that the nature and extent of the power ofParliament to delegate Its legislative powers ultimately depends 'on the language of the Constitution, construed in thelight ohhe country's own history'. 34 SOUTHAFRICANCONSTITUTIONAL LAW IN CONTEXT Toe contextual approach to constitutional interpretation purportedly employed by th Court is a complex and multifaceted endeavour. i24 Essenti ·a11Y, e ourt as embraced thee th C h idea that textual provisions can only be understood with reference to the historical and political context in which the interpretation takes place. When interpreting the Constitution it is important to keep in mind what the Constitution aimed to achieve. To do so, we need to recall South Africa's unique history and understand that the Constitution was drafted at least in part to ensure that the horrors of the apartheid past are never repeated. PAUSE FOR A grand narrative acts as an Interpretative tool REFLECTION It has been argued that the Constitutional Court attempts to use South Africa's history as a 'grand narrative' - a meaning-giving story - to justify its interpretations and to avoid allegations that it interprets the Constitution based on 'political' rather than on 'legal' considerations: While many of the provisions in the constitutional text do not have one objective meaning, and while the meaning of a text (often) depends on the context In which it is being interpreted, the grand narrative provides exactly such a context ( or at least the major tenets of such a context). This context seemingly enables lawyers,. legal academics and judges to interpret the Constitution without recourse to their own social, moral and political opinions. This strategy holds the promise of allowing the court to move away from the traditional liberal or modernist view of legal texts as holding one distinct and fixed meaning - a view that has become unsustainable In the age of constitutional Interpretation - without doing away with the distinction between law on the one hand and politics on the other. The text of the Constitution may not always have one objective meaning, so It Is said, but If we read It in the context of our history It will pretty much tell us what we want to know without us having to have recourse to our own personal, political or phllosophlcal views. I therefore contend that the grand narrative acts as an Interpretive tool, a tool deployed with the aim of safeguarding the legitimacy of the process of constitutional review and Interpretation Itself. 12s Of course, South Africa's history may well be a useful reference point for understanding the various provisions in the Constitution. If we assume that the Constitution was drafted to ensure that no government would ever again act in a way that fundamentally breached the rights of citizens and to prevent a recurrence of the injustices of the past_ we may well argue that our history can teach us much about the purpose of the various constitutional provisions included in the Constitution. ntext in which the Constitution needs to be interpreted also include" the However, th e co. social context. The nature of the South African democracy, as :wen nd political, economic a f h stem of racial discrimination and mlnQ.l'ltf n.&le as the lingering effects o t e s~ terpret the constitutional text. inform the way in which courts m C nsdtutional Court, see Currie, l review of contextual interpretation by the 124 Foras h 0 rt of Rights Handbook 140-5. 125 See Devos (2001).  CHAPTER 1 SOUTH AFRICAN INCONTEXT 35 CONSTITUTIONAL LAW 1.4.3 Context:an inegalitariansocietyand a one-party dominantdemocracy ToeSouthAfricanConstitution does not operate in a political or economic vacuum. South Africais an inegalitarian society with vast discrepancies in wealth between rich and poor citizens.Thesefactors must play a role when interpreting the provisionsof the South African constitution.As the Constitutional Court pointed out: Welive in a societyin which there are greatdisparitiesin wealth.Millionsof people are living in deplorable conditions and in great poverty.Thereis a high level of unemployment,inadequatesocial security,and manydo not have access to clean wateror to adequate health services. These conditionsalreadyexisted when the Constitutionwas adoptedand a commitmentto addressthem,andto transformour societyinto one in which therewill be humandignity,freedomand equality,lies at the heartof our new constitutionalorder.Foras long as these conditionscontinue to exist that aspirationwill have a hollow ring.Theconstitutionalcommitmentto addressthese conditionsis expressedin the preamblewhich,aftergivingrecognition to the injustices of the past, states: 'We therefore, through our freely elected representatives,adoptthis Constitutionas the supremelawof the Rep~blicso as to - Healthe divisionsof the past andestablisha societybasedon democraticvalues, social justice and fundamentalhuman rights;Improvethe quality of life of all citizensand free the potentialof each person:126 Thispassageunderlines the transformativenature ofthe Constitution.The Constitutionaims to addressthe unequal nature of South Africansociety and imposes an obligation on the stateand other relevant actors to address the needs ofthe most vulnerableand marginalised membersof society.When interpreting the provisionsof the Constitution - especiallythe provisionsof the Billof Rights- the ConstitutionalCourt has signalledan acute awareness ofthe unequal and unjust nature of South Africansociety and the vulnerability of many. groupswho lack economic or politicalpower and who require protection or advancement fromthe legislatureand the executiveas well as the judiciary. However,the political culture and the nature of the SouthAfricandemocracymust also playa role in interpreting the provisionsof the Constitution.It finds application and must be interpretedby,the courts with reference to the specificnature of South Africa'spolitical cultureand the role that politicalparties play in the politicalsystem.Politicalparties play a decisiverole·inthe South Africansystem of government,first,because of the nature of the electoralsystemcurrentlyin operationin SouthAfricaand, second,because ofthe dominant positionofformer liberation movementsin current politics.It wouldbe impossibleto come to gripswiththe manner in which the variousprovisionsofthe Constitutionoperatewithout understanding- in broad terms - the South Africanpoliticallandscape.As we have seen, theANCoverwhelminglywon the firstnational democraticelectionin 1994.It has alsowon everysubsequentnational election,althoughwith an ever-diminishingpercentage.In 2004 itwon69,7%of the vote, in 2009this decreasedto 65,9%and in 2014it decreasedevenfurther to 62,15%.Its closest competitor has been the DemocraticAlliance(DA)which won only 12,37in 2004,16,66%in 2009and 22,23%in 2014.Table1.3illustratesthe standingof parties inthe2019election. 126 Soobramoney paras8-9.  CHAPTER 1 SOUTH AFRICAN LAWINCONTEXT 37 CONSTITUTIONAL It is therefore clear that since 1994, one party, the ANC, has enjoyed electoral dominance and, despite a steady decrease in its electoral support, the party continues to win free and fair elections with all other parties lagging far behind. Such a system in which one political party continuously wins overwhelming electoral victories in free and fair elections is often referred to as a dominant party democracy. 128 Although this description is disputed as far as South Africa is concerned, it is important to note that the electoral dominance of one political party has the potential to influence the manner in which various constitutional structures in a democracy operate. Advocates of the dominant party thesis have described a number of consequences flowingfrom the continued electoral dominance of one political party. They argue that the dominant status of one political party in a democracy has the tendency to erode the checks on the power of the executive created by a democratic but supreme Constitution. Legislative oversight over the executive in Parliament may be stymied and opposition parties may be marginalised where one political party dominates the legislature. There is also a danger that a dominant party may 'capture' various independent institutions - including the judiciary and other bodies such as the prosecuting authority, the police service and other corruption- busting bodies - by deploying its members to these institutions to remove effective checks on the exercise of power by the govei·nment. In ~ one-party dominant democracy, so they argue, the formal mechanisms through which power is exercised become hollowed out while the separation between the political party and the state breaks down. This essentially shifts the centre where real decisions are made from the formal constitutional structures - the Presidency and the Cabinet on the one hand and the legislature on the other - to the decision-making body of the governing party. In such a system, they argue, the leadership of the dominant party makes all important decisions which are then merely formally endorsed by the constitutional structures. This process is characterised by a blurring of the boundary between party and state. This has the effect of reducing the likely formation of independent groups from within civil society that are autonomous from the ruling party. It is also characterised by a growing preponderance of political power, leading to abuse of office and arbitrary decision-making. This undermines the integrity of democratic institutions, particularly that of the legislature and its ability to check the executive. If this is true, it will influence the manner in which the legislature, the 128 SeeChoudhry (2009) 1-85. Whether South Africa can indeed be characterised in this manner has been the subject of Intensedebate. See Southall, R (1994) The South African elections of 1994: The remaking of a dominant-party state Journalof ModernAfrican Studies32(4):629-55; Giliomee, 1-l(1998) South Africa's emerging dominant-party regime Journalof Democracy94:128; Southall, R (1998) The centralization and fragmentation of South Africa's dominant party system AfricanA.Ifairs97(389 ):443-69; Friedman, S 'No easy stroll to dominance: Party dominance, opposition and civil society In South Africa' in Giliomee, Hand Simkins, C (eds) (1999) TheAwkwardEmbrace:011eParty_ Dominationand DemocracyIn IndustrialisingCountries97; Giliomee, H, Myburgh, J and Schlemmer, L (2001) Dominant party rule, opposition parties and minorities in South Africa Democratization 8(1):161-82; Southall, R (2001a) Opposition in South Africa:Issues and problems Democratization8(1):1-24; Southall, R (2001b) Conclusion: Emergent perspectives on opposition In South Africa Democratization8(1):275-84; Alence, R (2004) South Africa after apartheid: The first decade Journalof Democracy15(3):78-92 at 78; Hamill, I (2004) The elephant and the mice: El~ction 200~ and the future of oppositionpolitics In South Africa TheRoundTable:TheCommonwealthJournalof InternationalAffairs93(377):691-708; Lodge, T (2oo4) The ANC and the development of party politics in modern South Africa Journalof ModernAfrican Studies42(2 ):lB9_2 19; Southall, R (2005) The 'dominant party debate' In South Africa Afrika Spectrum40(1):61-82; Suttner, R(2006) Party dominance theory_:Of what value? Politikon:SAJournalofPoliticalStudies33(3):277-97; Handley, A, Murray,c and Simeon, R 'Learning to lose, learning to win: Government and opposition In South Africa's transition todemocracy' In Friedman, E and Wong, J (eds) (2008) PoliticalTransitionsIn DominantPartySystems:Learningto Lo,e191. 38 SO\ffi\ ~fR\C~N CONSmuTION~L IJ.'N INCON1£Xf. th. d'. and other constitutionalinstitutionsoperate as the dominant Party executive, e }U 1c1ary.. th d'ffi. willhavea disproportionateinfluenceon these institutions, us posmg I cult1esfortheir effectiveoperation.. lectoral dominance of the ANChas turned South Afnca mto a one-party Whether the e f th' h th dominantdemocracyis a hotly contestedissue.Criticso is t es1sargue at there are externalchecksthat operateoutsidethe constitutionalsyStem on th e ANCwhich serveas functional substitutes for the internal check provided by the formal institutions of parliamentarydemocracy"that the ANC'sdominancehas eroded. Given that the ANCis a 'broad church', so the argument goes, and because there is a high degree of internal democracyin the ANC,thisprovidesnotmerelyopportunitiesfordebate,but for the reversal of officialpolicy.129 The ANCis also in an alliancewith the SACPand the trade union federationCOSATU, both with their ownmembershipand views.These alliance partners playan importantrolein keepingtheleadershipofthe ANCin checkand ensuringthat the governmentofthe dayaddressesthe needsofthe majorityofits citizens. In the chaptersthat follow,wewilldiscussthe formalprovisionsof the Constitutionthat set up variousinstitutionsand structuresandthat regulatethe governanceof the country. When evaluatingthese institutionsand structuresand when determininghow well these structuresoperatein practice,itis importantto keepin mindargumentsaboutthe one-party dominantnature ofthe constitutionaldemocracyin SouthAfrica.Theviewwe take about this issuewill influencethe judgmentwemakeabouthoweffectivelyand successfullythe structuresset up by the Constitutionfunctionin realityand interactwith one another as required by the Constitution.Thosewhobelievethat SouthAfricais indeed a one-party dominant democracywill have a more negativeassessmentof the way in which the Constitutionsucceedsin establishinga fullyfunctioningmulti-partydemocracyin which the will of the people guidesthe governanceof the country.Theywill argue that the legislaturedoesnot alwaysholdthe executive accountable, willworryaboutthe 'capture'of the judiciarya~dwhetherit rem~s independent,andwill_warn againstthe abuseofpower by the executive.Thosewho reiectthe one-partydommantthesis will argue that the constitutionalstructures,on the whole,workwell,thatthe executiveremainsaccountable to the legislatureand thatthe independentjudiciaryactsasa bulwarkagainstabuseofpower by state officialsand electedrepresentatives ofthe people. SUMMARY SouthAfrica'sconstitutional historybefore1994wascharacterised byextremeformsofracial segregationand discrimination,creatinga bifurcatedstatewithone systemwithits own structuresand setsofrulesapplyinglargelytowhitesettlersandotherstructureswiththeir ownsetsofrulesapplyingto indigenouspeoples.Thisessentially racialdivisionisalsoto be foundin the lawthat is applicablein SouthAfricaeventoday.Thecommonlaw,introduced by the colonialrulers,at firstlargelyappliedto thewhitepopulationwhilecustomarylaw developedbyindigenouspeoplesappliedto blackSo~thAfricans. Today,thecommonlaw ly to different peoplein different contexts. and customarylawboth app olldcs1nmodemSouthAfrica JournalofModlmAfrkan (2004)The ANCand the developmentof partyp 129 Lo ge, d T Studies42(2):205-207.  CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAWINCONTEXT I < I ', ' I In 1910, the Union of South Africaformalised the bifurcated nature or'the 'state_by establishing a Westminstersystemofgovernmentthat largelyappliedto the whitepo~ulat1on whileallowingtraditional governance struotures centred around chiefs to continue to operateforindigenousSouthAfricansbut under the control of the white go:er~ent. ~e Westminstersystem establishedan extreme form of parliamentary sovereigntym which., Parliamentwassupremeand couldmakeany la~ it ~shed as long as ~tfollowedthe correct procedure.Thischangedin 1994 with the transitionto democracy. Toetransitionto democracyoccurredin twostages:the firsttransitionalstagewas guided byan interimConstitutionwhich allowedfor p_owershar~ngbetween the major politi~al partiesfora periodoffiveyearsand alsocontained34ConstitutionalPrincipleswhichwould bindthe drafters of the final Constitutidn.The interim Constitution als prescribed the man