Study Unit 3: Transformative Constitutionalism PDF

**Study Unit 3** **Transformative constitutionalism.** **Supports the study of South African legal history** \- 1996 South African Constitution highlights its history, \- Apartheid oppressed marginalized groups. \- There is a wealth gap and inequalities of resource and limited opportunities. \...

**Study Unit 3** **Transformative constitutionalism.** **Supports the study of South African legal history** \- 1996 South African Constitution highlights its history, \- Apartheid oppressed marginalized groups. \- There is a wealth gap and inequalities of resource and limited opportunities. \- The term parliamentary sovereignty is defined as: - Members of parliament could pass any laws if correct procedure followed, disdain constitution. - Courts lacked power to review and reject rights-violating laws.  \- Transforming South Africa from its racist, oppressive, equal and violent past. \- Provide for special transitional and restorative forms of justice, \- Address apartheid injustices and facilitate national reconciliation. \- These mechanisms include: - Truth and Reconciliation Commission (TRC): - Promotion of National Unity and Reconciliation Act 34 of 1995. - Expose human rights abuses from March 1960 to May 1994. - Collecting evidence and not prosecuting for past crimes. - Constitutional Principles and Amnesty -- Promotion of National Unity and Reconciliation Act 34 of 1995 that addresses amnesty. Chapter 4 speaks on: - Section 20 -- Granting of Amnesty. - Section 18 -- Applications for Amnesty. - Section 21 -- Effect of the Granting of Amnesty. - Restitution of Land Rights -- section 27(7). - Equality and Redress promotion under Act 4. \- The CORSA advocates for the protection of Socio-economic rights for all. \- Two essential Constitutional Court judgements for noting: 1. Justice Langa emphasizes services for all and economic equality. 2. Former Chief Justice Chaskalson said in Soobramoney: aspiration is hollow without change. **Various Apartheid Legislation 1850s to 1970s** \- Apartheid was systematically implemented. \- Upheld through a series of legislative acts and legal measures. \- Systemic racism perpetuates dominance of white people. \- Addressing apartheid laws, workplace laws, security, political representation, land, property, urbanization. \- Apartheid legislation: - Master and Servants Act of 1856: - Criminal offence to breach the contract of employment. - Unskilled work, which was performed mainly through Black people. - Repealed -- S51 of the Second General Law Amendment Act 94 of 1974 - Black Land Act 27 of 1913 - Prohibits Blacks from owning or renting land outside designated reserves. - Repealed -- S1 of Racially Based Land Measures Act 108 of 1991 - The Industrial Conciliation Act 11 of 1924 - Job reservation - Blacks excluded from unions and no Black unions allowed. - Repealed -- S86 of the Industrial Conciliation Act 36 of 1937. - The Minimum Wages Act of 1925: - Led to job reservation and promotes White employment. - The Black Administration Act 38 of 1927 - Black man\'s property to women under Black Law upon his death. - Extension of University Education Act 45 of 1959 - Separate tertiary institutions for Blacks, Indians, Coloureds and Whites. - Blacks needed governments permission to go to white universities. - Prohibition of Mixed Marriages Amendment Act 21 of 1968 - Overseas mixed-race marriages not recognized in SA. **History and Emergence of the Constitution through Democratic transition** \- Constitutional development is huge. \- Can be time-consuming. \- Focus is only on South African order. \- Referencing USA and UK constitutions due to specific reasons. - Constitutional history and principles have had a direct and lasting effect. - Influential impact on modern constitutionalism. - Lot of research material. - Differences exist between them. **Early history and the union constitution** \- SA in its current form was created and the Union of South Africa, 1910. \- Khoi-San hunters and herders occupied western parts, information omitted. \- Agro-pastoralists inhabited eastern region when Western Europeans settled in South Africa. **Process leading to the adoption of the SA constitution** \- Prior to 1994, there were different constitutions. \- Did not represent the interests of all the country's citizens. \- Representation was for the white minority and Parliamentary sovereignty reigned. \- Parliament was the highest law in the land. \- Members of parliament could pass any laws, if they followed procedure. \- Unfortunately, the Constitution was not the supreme law. \- Courts did not have the power to overrule any laws that abused the citizens human rights. \- The turning point -- Interim Constitution (1993) \- Now have Constitution Supremacy and the Independence of the Judiciary. \- Effected the current Constitution (1996). \- Judicial authority is vested in the courts (section 165) **Resistance to Apartheid -- Demonstrated opposition to apartheid.** \- Key events in liberation struggle. \- 1952 Defiance Campaign against apartheid laws \- In 1955, the Freedom Charter was adopted -- vision for a non-racial South Africa. \- The Women's March against the Pass Laws in 1956. \- In 1959, the Pan Africanist Congress (PAC) broke away from the ANC. \- The Sharpeville Massacre in 1960 intensified resistance and formed Umkhonto weSizwe (MK). \- The Black Consciousness Movement. - Led by Steve Biko - Black people need to liberate themselves mentally and physically. \- The 1967 student uprising in Soweto was another pivotal moment. \- COSATU and UDF mobilized workers against apartheid in South Africa. **Transition to democracy** \- SA faced conflict due to unsustainable apartheid in 1980s. \- By the mid-1980s ANC and NP hold secret talks. \- In 1985, President P. W. Botha offered conditional release to Mandela, who refused. \- In 1989, F. W. de Klerk negotiated with ANC, engaged Mandela directly. \- Key events in Feb 1990: ANC unbanned, Mandela released, exiled leaders return to SA. **CODESA, MPNF and 2-stage transition** \- ANC committed to drafting constitution via elected body. \- NP prefers non-elected forum for constitution. \- Two-stage transition instead of immediate transfer of power. \- Stage 1 - Unofficial negotiators at MPNF agreed on Interim Constitution, accepted by apartheid Parliament in 1983, enforced post-1994 elections. - Interim unity government established. \- Stage 2 - CA drafted final constitution after election. - Final constitution needed 2/3 majority, certified by Constitutional Court. **The Interim Constitution 1993 (IC)** \- Came into effect on 27 April 1994. \- Implemented government system promoting equality and democracy post-apartheid. \- Constitution protects citizen rights and constitutional supremacy began. \- Constitutional Court was created to interpret the Constitution and invalidate any laws. \- Also did the following: - Introduced proportional voting for a political party. - Divided the country into nine provinces. - Introduced the separation of powers. - Bill of Rights. \- In the 1994 elections, the ANC by an overwhelming majority of 62%, \- Failed to secure two-thirds, requiring support for Constitution passage. \- Public participation and political discussions led to ANC support. \- Constitutional Assembly eventually adopted the final Constitution and submitted it to the Constitutional Court for certification. \- Objections raised for noncompliance with 34 Constitutional Principles. \- Court determined that these principles should be interpreted holistically rather than rigidly. \- In its review, the CC checked two main aspects: - Text structure aligned with CPs compliance assessment. - Nine areas found below threshold. \- Court guidelines for compliance. \- Court requires CA to amend unconstitutional constitution following CPs with democratic input. \- Second Certification Judgment signed by Nelson Mandela in 1996. **The Constitution of the Republic of South Africa, 1996 (CORSA)** \- Birth certificate of the new South Africa. \- CORSA reigns Supreme. \- Authority of parliament can be judged against the Constitution for validity. \- Section 2 -- supreme clause - Any law or conduct inconsistent with the constitution is invalid. \- Chapter 2 of the Constitution contains the Bill of Rights (BoR) \- A "Bill of Rights" is a declaration of individual rights and freedoms. \- The BoR sets the basic human rights and freedoms of all human beings. **What is the Constitution?** \- Body of fundamental principles according to which a State is to be governed \- Defines organization and power distribution in government, outlining rules for governance in a country. \- Is the citizen rights, duties, and checks on power. \- Chapter 1 provides for various founding provisions that make up our Constitution. \- Section 1 provides that: 1. The Republic of South Africa is one, sovereign, democratic state founded on the following values: a. Promoting dignity, equality, rights, freedoms. b. Non-racialism and non-sexism. c. Supremacy of the Constitution and the rule of law. d. Universal adult suffrage, common voter's roll, regular elections, multi-party system. **Basic features of the CORSA** \- Democracy \- Constitutional democracy \- Separation of powers \- Constitutionalism \- Rule of law **Democracy** \- Form of government where all eligible citizens have an equal vote. \- Emerge from Greek-demokratia -- government by the people. \- Section 1(d) values and principles on which SA is founded, \- Democracy: - People are entitled to influence important decisions that affect their lives. - Democracy allows collective decision-making based on diverse views and interests for a country\'s future. - Democracy is rule by the majority. \- Many people determine laws for governance. \- Direct legislative function: voters can vote for or against laws. \- Is multifaceted and there are different conceptions of democracy. \- Democracy in is SA is discernible in several provisions: - The preamble - Bill of Rights - Limitation clause - Interpretation clause. - Principle of co-operative governance. - Provisions regulating legislative bodies and their procedures. \- Advantages 1. Respects the will of the people. 2. Promotes accountability 3. Encourages citizens participation. 4. Allows for dissent. 5. Often respects minorities and allows for their representation. 6. Has checks and balances on power. \- Disadvantages 1. Slow decision-making processes. 2. Favouritism to donors. 3. Tendency toward political turmoil. 4. Reliance on respect for traditions and institutions. 5. Elections are costly. **Constitutional democracy** \- SA central pillar for constitutional democracy as a constitutional state. \- CD has no technical meaning or theory. \- Regarded as a descriptive term: - Political decisions made based on constitution. \- In our context, CD: - Various forms of democracy merge for collective decision-making. \- Constitution does not specify democracy type. **Rule of Law** \- An elemental feature of SA constitutionalism. \- A founding value entrenched in S1(c) of the CORSA. - Supremacy of the constitution and the rule of law. \- Challenge pathway in public power. \- Three main principles: - Law is supreme. - Public power can only be exercised in terms of authority conferred by law. - Equality in the law - Equal treatment for all individuals in court system. - The courts - Upholds laws to protect rights, ensuring common law and statutes function. **Separation of powers** \- Separation of powers restricts public power. \- Branches of government: - Legislature (Law-making body) - Executive (Responsible for the governance of the country on a day-to-day basis) - Judiciary (Applying the law) \- Setting limits on power. \- Distributes power to prevent abuse by one branch or person. \- Prevent tyranny and hold branches accountable individually. \- Power distributed to prevent overconcentration. \- Create exclusiveness and specialisation in each branch. **Legislative authority** \- Parliament \- On a national level, the legislative has: - National Assembly (350-400 members) - National Council of Provinces (90 delegates) \- On a provincial level, the legislative has: - Provincial legislature. **Executive authority** \- Cabinet. \- Has following members on a national level: - President, Deputy President and Ministers \- On a provincial level: - Premier and members of the Executive Council. **Judicial authority** \- Courts. \- Various courts: - Constitutional Court. - Supreme Court of Appeal. - High Courts - Magistrate's courts. **Principles that make up the modern concept of the doctrine** \- Trias politica - State authority divided between legislature, executive, judiciary excluding co-operative principles. \- Separation of functions - One branch may not usurp the functions and powers of another. \- Separation of personnel - Separation of powers: one role per branch. \- Checks and balances. - Checks government branches through mutual control. **Constitutionalism** \- SA identifies as a constitutional democracy. \- The CORSA is the supreme law of the land. \- No contradictions with other law. \- Defines ideal constitution goals, not specific constitution functions. \- Constitutional philosophy limits state power. \- The Constitution must ensure that the State has enough power to govern \- Ensure that the State does not violate the law or the human rights of citizens.