Mrs Thabile Chonco-Spambo

Office: Dullah Omar Institute for Constitutional Law, Governance

and Human Rights
Email: tchonco-spambo@uwc.ac.za
Consultations: Wednesdays 11:00-13:00 & Thursdays 12:00-14:00
THE MAKING OF THE CONSTITUTION
Prescribed reading:

 De Vos et al pp 3-25

 In re Certification of the Constitution of the RSA [1996] ZACC

26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras
1-3; 5-21; 26-43 (First Certification Case)
Additional reading:

 C Murray “A Constitutional Beginning: Making South Africa’s

Final Constitution” (2001) 23 UALR L. Rev. 809

 A Sachs “The creation of South Africa’s Constitution”

[comments] (1996) New York Law School Law Review, Vol
41 Issue 2, pp 669-702
 Introduction to the Constitution
Q: What is a Constitution?
Set of laws that establish a State
Who is the State?
Where does the State operate?
How?
Powers & duties
Prescripts on how to interact with each other & the citizens of a country
Eg…
Q: What is a Constitution?
Q: Why do we have constitutions?
 System of gov in a country;
Structures, powers, limitations, capacities, relationships
Critical historical state of affairs in the political development of a
country =
colonisation, independence, unification, republic; dissolution of a
political entity due to social instability, transition, democracy
Q: What is a Constitution?
Q: Why do we have a Constitution?
Q: What is constitutional law?
concerned with state, society & law
Body of law that regulates principle organs of state -
composition,
powers & functions,
Procedures
Substantive inquiry
• How can a collection of words provide a basis for present & future
generations to build a peaceful, law-abiding nation?
“just words”…?
• Ideas of government & society
Shaped by the past
• Also ideas of members of society
Regulation of social interaction
Constitutionalism
• Theory of Constitutional Law
• Prescripts for a constitutional state
• Prescribes that a Constitution must structure & constrain state [& private]
power
• Prescribes vs describing
• Respect for dignity & human worth
• Encompasses constitutional principles we’re going to look at shortly
• Value based
• Shaped by a country’s political & social history
The place of a Constitution in the government of a society…
 Two branches of SA
Constitutional Law

Separation of Powers Bill of Rights

-creation of the State
-what we interrogate:
constitutionality of law or conduct
against the power assigned by the
Constitution
-State’s duties vis-à-vis citizens
-what we interrogate:
constitutionality of law or conduct
against a right in the BoRs
A Constitution for every ‘season’?
https://ourconstitution.wethepeoplesa.org/south-african-constitution/animated-story-of-our-constitution/
Before the Union
• Cape & Natal = British rule = Westminster system
• Transvaal & Orange Free State = Boer Republics =
departure from Westminster system (SoPs, BoR
reserved for white males only) = Constitution of
1858 racist & prevented courts judicial review ability
• Indigenous SAns = chiefdoms
• British domination grows…
• Anglo-Boer war 1899-1902 = Britain defeats Boer
Republics, takes states
• Formation of the Union of SA in 1910 (exclusion of
black South Africans)
1. Union
Constitution 1910
• Unification of 4 colonies
• Unitary constitutional state = white
political power
• Westminster system ↑
• Constitution created racially divided state-
White people – Westminster constitution
Black people – tribal authority, Bantu
Authorities Act, Black Admin Act
Union Constitution 1910 cont…
Features of Union Constitution:
☼bicameral parliament – House of Assembly & Senate
☼unitary
☼parliamentary supremacy
☼constitutional amendment by ordinary procedures except eg s35
• s35 of the Union Constitution protected non-racial voting rights in Natal &
the Cape
• Laws of the Cape of Good Hope allowed anyone to vote, regardless of their
race, if:
 they earned a certain amount of money; or
 owned property of a certain value.
• But…in 1939 Black voters were removed from the common voters roll -
Representation of Natives Act
• Next to be removed were coloured voters…
 Union Constitution 1910: attempts to remove coloured voters

• National Party passed Separate Representation of Voters Act

– Did not get two-thirds majority
– Successfully challenged in Harris v Minister of Interior –
• National Party enacted High Court of Parliament Bill
– Successfully challenged
• Increased seats in senate
– Passed Separate Representation of Voters Act with two-thirds majority
– Unsuccessfully challenged
• New act – South Africa Act Amendment Act:
– A court cannot enquire into or pronounce on the validity of any law passed by Parliament except the languages
one
2. Republic of South African Constitution
1961
3. Republic of South African/Tricameral
Constitution 1983
Negotiation process begins…
https://ourconstitution.wethepeoplesa.org/south-african-constitution/animated-story-of-our-constitution/
(former) Justice Albie Sachs -
 CODESA
• Convened on 20 December 1991
• Liberation movements, De Klerk government, TBVC states
• Divided into 5 working groups
♣Group 1: creating climate for free political activity
♣Group 2: constitutional transformation, set of constitutional principles & method of
drafting/adopting new constitution → failed to reach agreement & lead to breakdown
of CODESA
♣Group 3: government during transition
♣Group 4:future of TBVC states
♣Group 5: timeframes for implementation – collapsed because of Group 2
 CODESA – SA Gov concerns
• Negotiations broke down
 CODESA – ANC concerns
• Negotiations broke down
 CODESA
• Proposed two-stage framework for constitution drafting & SACP proposed
“sunset clause”
CODESA - Declaration of Intent
 MPNF – Multi Party Negotiating Forum

• Negotiating Council who deliberated over reports from technical committees

• ANC: Constitution drafted by democratically elected government
• NP: Constitution drafted by MPNF, long transitional government
• Compromise: two-stage transition against once off transfer
4. Interim Constitution 1993
• Drafted by people yet to be democratically elected
• Interim government of unity - Coalition gov btwn ANC & NP – ended in 1999
• Westminster system replaced = legislative & exec power divided
• End of parliamentary supremacy
• Set up the Constitutional Assembly – draft new Constitution
• 34 Constitutional Principles
• 2/3 adoption
• Constitutional Court certification
5. “Final” Constitution 1996
• Supreme Constitution
• Democracy
• Value-based
• Bill of Rights
• Constitutional Court
• Separation of powers
• Aspirational
• Recognition of traditional leadership and customary law
• Transformative – law can & must be used to achieve opposite of what Apartheid gov used
law for, SERs, substantive equality
Questions?