Isabella Carter
The South African Constitution, signed into law on 21 March 1996, is considered one of the most progressive constitutions in the world. It is the birth certificate of a new South Africa, free of oppression and discrimination, and a major turning point in the country's history. The Constitution provides for extensive human rights, including the right to life, equality, human dignity, and privacy, which are considered so important that they are non-derogable, meaning they can never be reduced. The Constitution also establishes the structure of the judicial system, with a hierarchy of courts and various commissions and offices to protect and support democracy and human rights. It reflects the values of both the African National Congress (ANC) and the National Party (NP) and was created through a process of negotiation and compromise to end apartheid in South Africa.
| Characteristics | Values |
|---|---|
| Highest law in the land | Foundation for a democratic South Africa, free of oppression and discrimination |
| Bill of Rights | Inalienable right to life, equality, human dignity, privacy, freedom of religion, belief, opinion, freedom from torture, freedom from slavery |
| Customary international law | Applies unless it conflicts with national law |
| National law | Must be interpreted to be consistent with international law |
| Charters of Rights | Can be enacted by Parliament to expand on the Bill of Rights |
| Self-determination | Recognition of the right of self-determination of communities within South Africa |
| Political parties | Public funding required for those represented in national and provincial legislatures |
| Obligations | Must be carried out without delay |
| Executive powers | May be delegated by one organ of state to another |
| Judicial system | Magistrates' Courts, the High Court, the Supreme Court of Appeal, and the Constitutional Court |
| Judges | Appointed by the President on the advice of the Judicial Service Commission |
| National Prosecuting Authority | Responsible for all criminal prosecutions |
| Democracy and human rights | Protected and supported by the Public Protector (an ombudsman), the South African Human Rights Commission, the Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Independent Electoral Commission, and the Independent Communications Authority |
| Civil service | Values and principles listed, with the Public Service Commission overseeing administration |
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What You'll Learn
The constitution's role in ending apartheid
Apartheid was a system of racial segregation in South Africa that dictated where South Africans could live and work, the type of education they could receive, and whether they could vote, based on their race. The country's new constitution, which was signed into law on March 21, 1996, played a pivotal role in ending this era of racial oppression and ushering in a new era of democracy.
The creation of a new constitution was an integral part of the negotiations to end apartheid in South Africa. One of the major disputed issues was the process by which such a constitution would be adopted. The African National Congress (ANC) insisted that it should be drafted by a democratically elected constituent assembly, while the governing National Party (NP) feared that the rights of minorities would not be protected in such a process and proposed that the constitution be negotiated by consensus between the parties and then put to a referendum. Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA). Despite breaking down after the second plenary session in May 1992, the parties agreed on a process that would allow a negotiated transitional constitution to pave the way for an elected constitutional assembly to draft a permanent constitution.
The new constitution was a major turning point in South African history, enfranchising blacks and other racial groups and serving as the supreme law of the republic. It provided the legal foundation for the existence of the republic, outlined the human rights and duties of its citizens, and defined the structure of the government. Notably, the bill of rights became the first major section of the new constitution, signalling a strong commitment to protecting the rights and freedoms of all citizens.
The bill of rights in the South African Constitution is considered by many to offer some of the most extensive human rights protections in the world. Certain rights, such as "equality," "dignity," and "life," are deemed so fundamental that they are "non-derogable," meaning they cannot be reduced or curtailed. This comprehensive bill of rights played a crucial role in dismantling the legal framework of apartheid and establishing a new framework that guaranteed the rights and freedoms of all citizens, regardless of race or any other factor.
Additionally, the Constitution Second Amendment Act, which came into force on October 7, 1998, further contributed to the transition to a post-apartheid system of local government by extending certain deadlines and making provisions for the transition. This amendment also allowed for the establishment of municipalities across provincial boundaries, demonstrating the ongoing work to build an inclusive and representative government.
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The bill of rights
The South African Constitution, introduced in 1993, was a key part of the negotiations to end apartheid and move towards a liberal democracy. The Bill of Rights, now in Chapter Two of the Constitution, is a cornerstone of democracy in the country. It protects the civil, political and socio-economic rights of all people in South Africa.
The South African Constitution and its Bill of Rights were groundbreaking in their affirmation of democratic values and human rights, and they continue to provide a framework for the protection and promotion of these rights in the country.
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Equality, dignity, and life
The South African Constitution is a cornerstone of democracy in the country. It contains a robust equality right, acknowledging the rights of sexual, religious, and cultural communities. The constitution commits to freedom, equality, dignity, human rights, and social justice. It enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality, and freedom.
The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary, and all organs of state. It also binds natural and juristic persons, taking into account the nature of the right and the nature of any duty imposed by the right. The state must respect, protect, promote, and fulfil the rights in the Bill of Rights.
The right to equality places the responsibility on individuals to not discriminate unfairly against anyone on the basis of race, gender, religion, national, ethnic, or social origin, disability, culture, language, status, or appearance. South Africa's motto, "!KE E: /XARRA //KE", translates to "Diverse people unite", calling on all citizens to build a common sense of belonging and national pride, celebrating the diversity that defines the nation.
The right to human dignity places the responsibility on individuals to recognize that living a good and successful life involves hard work and that anything worthwhile requires effort. This includes exercising, eating correctly, abstaining from smoking, avoiding substance abuse, and indulging in irresponsible behavior that may result in being infected or infecting others with communicable diseases.
The right to life is also enshrined in the South African Constitution, guaranteeing freedom and security for all. This includes the right to not be deprived of freedom arbitrarily or without just cause and protection from slavery, servitude, or forced labor.
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The structure of the judiciary
The South African Constitution, established in 1996, outlines the structure of the judiciary, which is comprised of several courts with distinct roles and responsibilities.
At the apex of the judicial system is the Constitutional Court, which is the highest court in the country for constitutional matters. It has exclusive jurisdiction over interpreting, protecting, and enforcing the Constitution. The Constitutional Court comprises the Chief Justice of South Africa, the Deputy Chief Justice, and nine other judges. This court decides on disputes regarding the powers and constitutional status of government branches and reviews the constitutionality of parliamentary and provincial bills, amendments, and the actions of the President.
The Supreme Court of Appeal, based in Bloemfontein, is the second-highest court in South Africa. It deals with appeals from the High Courts and can decide on any matter except labour and competition cases. The Supreme Court of Appeal plays a crucial role in confirming the constitutional validity of Acts of Parliament, provincial Acts, and presidential conduct.
Below the Supreme Court of Appeal are the High Courts, including the local divisions of Witwatersrand, Durban and Coast, and South-eastern Cape. These courts hear appeals from lower courts and have original jurisdiction in certain cases.
Additionally, there are Magistrates' Courts, often referred to as "lower courts," which are an essential part of the judicial system. These courts handle a range of cases and are subject to the Constitution and the law, just like all other courts in South Africa.
The Chief Justice, as the head of the judiciary, is responsible for overseeing the establishment and monitoring of norms and standards for the exercise of judicial functions across all courts. The Judicial Service Commission advises the national government on matters relating to the judiciary and administration of justice.
While the judiciary in South Africa has a clear structure, there have been calls for reform to ensure its independence and improve its governance. The current system, with the Office of the Chief Justice and the Department of Justice sharing responsibilities, has faced criticism for not adequately supporting the important role played by judges in the country's constitutional democracy.
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Democracy and human rights
The South African Constitution is considered one of the most progressive in the world, with a strong emphasis on human rights and democracy. The constitution was signed into law on 21 March 1996, marking a significant turning point in the country's history and ending apartheid.
The Bill of Rights, now in Chapter Two of the Constitution, is often regarded as the cornerstone of South Africa's democracy. It outlines 22 major rights, including equality, human dignity, freedom, security of the person, privacy, freedom of religion, belief and opinion, freedom of expression, and freedom of movement and residence. These rights are protected by the Constitutional Court, which ensures that state actions align with the Constitution's provisions.
The Constitution establishes a multi-party democratic system with universal adult suffrage, guaranteeing free, fair, and regular elections. It also ensures that all citizens are equally protected by the law, promoting equality before the law and equal protection and benefit of the law.
To support democracy and human rights, the Constitution establishes several commissions and offices, including the Public Protector, the South African Human Rights Commission, the Commission for Gender Equality, and the Independent Electoral Commission. These bodies work to safeguard the rights and freedoms outlined in the Bill of Rights.
The Constitution also addresses the idea of equality by recognising the injustices of the past and aiming to establish a society based on democratic values, social justice, and fundamental human rights. It seeks to improve the quality of life for all citizens and promote diversity, non-racism, and non-sexism.
In conclusion, the South African Constitution is a powerful document that enshrines the rights of all people in the country, promotes democratic values, and provides a framework for a fair and just society. It serves as an important foundation for South Africa's transition to a democratic and open society.
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Frequently asked questions
The South African Constitution is significant because it serves as the foundation for a democratic South Africa, free from oppression and discrimination. It is considered one of the most progressive constitutions in the world.
The South African Constitution guarantees certain fundamental rights, including the right to life, equality, human dignity, and privacy. These rights are considered so important that they are "non-derogable", meaning they cannot be reduced or taken away.
The creation of a new constitution was an integral part of the negotiations to end apartheid in South Africa. The African National Congress (ANC) insisted that it should be drafted by a democratically elected constituent assembly, while the governing National Party (NP) feared that the rights of minorities would not be protected in such a process. Formal negotiations began in December 1991, and the constitution was signed into law on March 21, 1996, a major turning point in South Africa's history.
The South African Constitution establishes the structure of the judicial system, defining the hierarchy of courts and providing for the appointment of judges. It also creates several commissions to protect and support democracy and human rights, including the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and the Commission for Gender Equality.
