Jonah Patel
South Africa's current constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The new constitution is considered one of the most progressive in the world, with a focus on human rights, democracy, and social justice. It completely reconfigured South Africa's political institutions, introducing a president, a prime minister, and an executive council, as well as an independent judiciary and a bicameral legislature. The constitution also emphasises multi-party democracy, universal adult suffrage, and the protection of fundamental rights, freedoms, and civil liberties. Since its enactment, the constitution has been amended several times to further refine and strengthen South Africa's democratic foundations.
| Characteristics | Values |
|---|---|
| Status | Supreme law of the Republic of South Africa |
| Foundation | Legal foundation for the existence of the republic |
| Human rights | Sets out the human rights and duties of its citizens |
| Government structure | Defines the structure of the government |
| Multi-party democracy | Regular elections and universal adult suffrage |
| Supremacy | Supremacy of the constitution over all other laws |
| Government type | Quasi-federal system in place of a centralized government |
| Racism and sexism | Non-racism and non-sexism |
| Protection | Protection of "all universally accepted fundamental rights, freedoms, and civil liberties" |
| Equality | Equality before the law |
| Judiciary | Separation of powers with an impartial judiciary |
| Levels of government | Provincial and local levels of government with democratic representation |
| Diversity | Protection of the diversity of languages and cultures |
| Amendments | Requires a two-thirds majority in the National Assembly to amend |
| Founding values | Human dignity, equality, advancement of human rights and freedom, and universal adult suffrage |
| International law | Customary international law applies unless it conflicts with national law |
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What You'll Learn
The constitution's history
The Constitution of South Africa is the supreme law of the Republic of South Africa. It is one of the most progressive constitutions in the world and enjoys high acclaim internationally. The current constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The first constitution was enacted by the South Africa Act 1909, the longest-lasting to date.
The history of the constitution can be traced back to the early 1900s when South Africa was a British dominion with limited independence. In 1931, the British Parliament enacted the Statute of Westminster, which removed many constitutional limitations on British dominions, including South Africa. This led to the passing of the Status of Union Act of 1934 by the South African Parliament, asserting that no act of the British Parliament could apply to South Africa without the endorsement of the Union Parliament.
In 1960, following the drafting of a new constitution, South Africa's white voters voted in a constitutional referendum to abolish the Union of South Africa created by the South Africa Act of 1909. This resulted in the establishment of a Republic of South Africa, with the 1961 Constitution severing all remaining ties with the British Empire. However, this constitution maintained white dominance over political life through a discriminatory electoral structure that disenfranchised non-whites.
In the following decades, South Africa witnessed a struggle for freedom and equality, with the African National Congress (ANC) and the Black Consciousness Movement playing pivotal roles. In 1990, mounting international and domestic pressure forced the National Party (NP) to dismantle the apartheid system. The ban on political organizations, including the ANC, was lifted, and Nelson Mandela was released from prison after 27 years. This was followed by the repeal of apartheid legislation and negotiations under the Convention for a Democratic South Africa (CODESA) to draft an interim constitution for a transitional period.
The interim constitution, promulgated in 1993, provided for a Government of National Unity and a five-year transition period. It also established a Constituent Assembly to draft a new constitution. During this time, intense political violence occurred, and negotiations were challenging, with various parties, including the IFP and the Concerned South Africans Group, staging walkouts at different stages. Despite these challenges, the negotiations eventually led to the adoption of the current constitution in 1996, marking a significant shift towards democratic rule and transformative changes in South Africa's political landscape.
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Human rights and equality
South Africa's current constitution, its fifth, was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The constitution is the supreme law of the Republic of South Africa, providing the legal foundation for the existence of the republic, setting out the human rights and duties of its citizens, and defining the structure of the government.
South Africa's Constitution is one of the most progressive in the world, with human rights and equality given clear prominence. The Preamble states that the Constitution aims to heal the divisions of the past and establish a society based on democratic values, social justice, and fundamental human rights. It seeks to improve the quality of life of all citizens and lay the foundations for a democratic and open society in which every citizen is equally protected by law.
The fundamental rights contained in Chapter 2 of the Constitution, also known as the Bill of Rights, seek to protect the rights and freedoms of individuals. These include equality before the law, non-racism, non-sexism, and the protection of "all universally accepted fundamental rights, freedoms, and civil liberties." The Constitutional Court guards these rights and determines whether actions by the state are in accordance with constitutional provisions.
The new constitution completely reconfigured South Africa's political institutions, injecting new dynamics and transformative changes across its political landscape. It introduced a president, a prime minister, and an executive council (cabinet), a bicameral legislature, and an independent judiciary. The constitution also provided for multi-party democracy with universal adult suffrage, regular elections, and a quasi-federal system in place of centralised government.
The new constitutional text was tested against these principles by the newly established Constitutional Court. If the text complied with the principles, it became the new constitution; if not, it was referred back to the Constitutional Assembly. This assembly was established on 9 May, with Nelson Mandela inaugurated as democratic South Africa's first president the following day.
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Government structure
The current South African constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997. The constitution is the supreme law of the Republic of South Africa, providing the legal foundation for the existence of the republic, setting out the human rights and duties of its citizens, and defining the structure of the government.
The South African government is structured as a multi-party democracy with regular elections and universal adult suffrage. The constitution establishes South Africa as a sovereign, democratic state founded on the values of human dignity, the achievement of equality, and the advancement of human rights and freedom. It provides for a separation of powers, with an executive, a legislature, and an independent judiciary.
The executive branch of the government is led by the President, who is the head of state and head of government. The President is responsible for appointing the Cabinet, which is the executive council that assists the President in governing the country. The Cabinet is composed of ministers, who are responsible for specific areas of policy and administration.
The legislative branch of the government is bicameral, consisting of two houses: the National Assembly and the National Council of Provinces. The National Assembly is the lower house of Parliament, with 400 members who are directly elected by the people. It is responsible for passing laws, approving the budget, and providing oversight over the executive branch. The National Council of Provinces is the upper house, with 90 members who represent the nine provinces of South Africa. It considers and passes legislation affecting the provinces and ensures that provincial interests are taken into account in national policy-making.
The judiciary in South Africa is independent of the executive and legislative branches. It interprets and applies the laws of the country, resolves legal disputes, and ensures that the constitution is upheld. The Constitutional Court is the highest court in the land and has the power to review the constitutionality of laws and government actions. It plays a crucial role in protecting the rights enshrined in the constitution and ensuring that all branches of the government act within their constitutional mandate.
The constitution also provides for provincial and local levels of government with democratic representation. This allows for the decentralisation of power and ensures that decisions are made at the appropriate level, taking into account local needs and concerns.
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Amendments
The current South African constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. Since 1997, the Constitution has been amended eighteen times.
Amending the Constitution of South Africa requires a bill to be passed by at least two-thirds of the members of the National Assembly (at least 267 out of 400 members). If the amendment affects provincial powers or boundaries or amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. Amending Section 1 of the Constitution, which establishes South Africa as a sovereign, democratic state and lays out the country's founding values, would require the support of three-quarters of the members of the National Assembly.
The eighteen amendments made to the Constitution since 1996 include the Constitution First Amendment Act, formerly the Constitution of the Republic of South Africa Amendment Act, 1997. This Act was signed by the President on 28 August.
Economist Jacques Jonker has criticised the provisions of Chapter 13 as insufficient to guard against fiscal imprudence. He suggests that it should be amended to be in line with other constitutions, such as Spain's, to enforce fiscal discipline.
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International law
The Constitution of South Africa is the supreme law of the Republic of South Africa. It establishes the legal foundation for the republic, outlines the human rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was drafted by the Parliament elected in the 1994 general election. It was enacted by President Nelson Mandela on December 18, 1996, and took effect on February 4, 1997, replacing the Interim Constitution of 1993. The constitution has been amended eighteen times since 1997.
With regard to international law, the South African Constitution contains several provisions. Firstly, Section 233 of the Constitution states that when interpreting any legislation, courts must prefer any reasonable interpretation consistent with international law over any alternative interpretation that is inconsistent with it. This includes both binding and non-binding international law, such as treaties that have not been incorporated into domestic legislation.
Additionally, Section 39(1)(b) of the Constitution obliges South African courts to consider international law when interpreting the Bill of Rights. This is particularly relevant when it comes to human rights, as international law can help inform and shape the interpretation of these rights in the South African context.
Furthermore, South Africa follows a dualist approach regarding the domestic effect of international treaties. While ratifying a treaty creates international obligations for the country, the dualist system means that for the treaty obligations to have the force of law domestically, the treaty must be incorporated into domestic legislation.
South Africa also has specific procedures and institutions in place to manage its international agreements. The South African Treaty Section of the Office of the Chief State Law Adviser is the central authority responsible for record-keeping and custody of all international agreements to which South Africa is a party. This Treaty Section facilitates access to the South African Treaty Register, an interactive database containing information on South African agreements. Additionally, the State Law Advisers within the same office provide legal advice on treaty practice and procedural matters related to concluding agreements. All South African treaties must be registered with the Secretariat of the United Nations after they come into force.
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Frequently asked questions
The Constitution of South Africa is the supreme law of the Republic of South Africa. It was enacted to end apartheid and introduce the framework of a liberal democracy, universal adult suffrage, and a bill of rights. It is one of the most progressive constitutions in the world, with human rights and freedoms given clear prominence.
The South African Constitution is founded on the values of human dignity, equality, human rights, freedom, and democracy. It seeks to protect the rights and freedoms of individuals and to promote unity in diversity.
The current constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was approved by the Constitutional Court on 4 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993.
The South African Constitution has undergone several amendments since its adoption to address persistent racial and class discrimination. There have been eighteen amendments since 1996, with the most recent being the Constitution Eighteenth Amendment Act of 2023, recognising South African Sign Language as an official language.
