Eleanor Finch
South Africa's history of constitutional development is closely tied to its struggle for independence and the end of apartheid. The country's first steps towards independence came in 1910 when it became a self-governing dominion within the British Commonwealth, though the British Crown retained a ceremonial role as head of state. South Africa's constitution has undergone several iterations since then, with significant revisions in 1934, 1960, 1983, 1996, and 2012, reflecting the country's evolving political landscape and its transition to a constitutional democracy.
| Characteristics | Values |
|---|---|
| Date of signing | 21 March 1996 |
| Date of revision | 2012 |
| Date of Second Amendment Act | 7 October 1998 |
| Date of Third Amendment Act | 30 October 1998 |
| Purpose | To end apartheid in South Africa |
| Process | Negotiated by consensus between parties |
| Bill of Rights | Extensive human rights protections, including equality, dignity, and life |
| Language | Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa, and isiZulu |
| Judicial System | Magistrates' Courts, the High Court, the Supreme Court of Appeal, and the Constitutional Court |
| Democracy and Human Rights Protections | Public Protector, South African Human Rights Commission, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Commission for Gender Equality, Auditor-General, Independent Electoral Commission, and Independent Communications Authority |
| Civil Service | Values and principles listed, Public Service Commission established |
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What You'll Learn
South Africa's 1996 Constitution
The Constitution establishes the structure of the judicial system in Chapter 8, defining the hierarchy of courts from Magistrates' Courts to the Constitutional Court. It also provides for the appointment of judges by the President, based on the advice of the Judicial Service Commission. Chapter 9 creates several commissions and offices to safeguard and promote democracy and human rights, including the South African Human Rights Commission, the Commission for Gender Equality, and the Independent Electoral Commission.
Chapter 13 of the Constitution has been criticised by economist Jacques Jonker as insufficient in enforcing fiscal discipline. He suggests amending it to align with other constitutions, such as Spain's. The final chapter addresses transitional and incidental provisions, including the continuity of existing international agreements and the application of customary international law in South Africa.
The Constitution has undergone several amendments since its inception. The Constitution Second Amendment Act, which came into force on 7 October 1998, extended the term of office for municipal councils and addressed deadlines in the transition to a post-apartheid local government system. The Constitution Third Amendment Act, effective from 30 October 1998, allowed for the establishment of municipalities across provincial boundaries with the agreement of relevant governments. Amendments to the Constitution are inserted into the original text by the Government Communication and Information System (GCIS), as Parliament does not publish updated official texts.
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Ending apartheid
Apartheid in South Africa was a system of racial discrimination and inequality against Black people that began with large-scale European colonisation in 1652. The word "apartheid" is Afrikaans for "separateness" or "the state of being apart".
During the apartheid era, South Africa was subject to international sanctions, including arms embargoes and economic sanctions. Internal resistance to apartheid grew increasingly militant in the 1970s and 1980s, prompting brutal crackdowns by the ruling National Party and protracted sectarian violence that left thousands dead or in detention.
Formal negotiations to end apartheid began in December 1991 at the Convention for a Democratic South Africa (CODESA). The African National Congress (ANC) and the National Party agreed on a process whereby a negotiated transitional constitution would provide for an elected constitutional assembly to draw up a permanent constitution.
Apartheid legislation was repealed on 17 June 1991, leading to non-racial elections in April 1994. Since the end of apartheid, elections in South Africa have been open and competitive.
However, 30 years after the end of apartheid, South Africa is still grappling with the legacy of oppression and segregation. A 2022 World Bank report found that South Africa is the most unequal country in the world, with 80% of the country's wealth in the hands of 10% of the population. The report attributed these income disparities directly to race, stating that the "legacy of colonialism and Apartheid rooted in racial and spatial segregation continues to reinforce inequality".
South Africa has taken steps to address racism and discrimination, including hosting the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in 2001, which resulted in the Durban Declaration and Programme of Action (DDPA). The DDPA provides a roadmap for states to combat racism, discrimination, and xenophobia. South Africa launched its National Action Plan to combat racism in 2019.
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Democracy and human rights
The South African Constitution was signed into law on March 21, 1996, marking a pivotal moment in the country's history. This constitution played a crucial role in ending apartheid in South Africa, addressing the country's history of racial oppression and promoting equality.
The South African Constitution is underpinned by democratic values and a strong commitment to human rights. The Bill of Rights, which forms a significant part of the Constitution, is considered a cornerstone of democracy in the country. It guarantees an extensive range of human rights, including the right to life, freedom from torture, and freedom from slavery, which are deemed "non-derogable," meaning they cannot be reduced or curtailed.
The Constitution establishes a comprehensive judicial system, with the Constitutional Court at the apex, followed by the Supreme Court of Appeal, the High Court, and the Magistrates' Courts. It ensures the independence of the judiciary and outlines the process for appointing judges, with the President making appointments based on the advice of the Judicial Service Commission.
To further safeguard democracy and human rights, the Constitution establishes several commissions and offices. These include the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities, the Commission for Gender Equality, and the Independent Electoral Commission, among others. These bodies work to protect and promote the rights and freedoms enshrined in the Constitution.
The Constitution also outlines the principles and values that guide the administration of the civil service, emphasizing the importance of transparency and accountability. It establishes a Public Service Commission to oversee the civil service and ensure that it operates in accordance with the values and principles set out in the Constitution.
Additionally, the South African Constitution guarantees equal rights for all citizens, regardless of race, colour, or creed. It recognizes the country's diverse linguistic heritage and mandates the state to take active measures to elevate the status and usage of indigenous languages, ensuring their preservation and promotion.
The process of drafting the Constitution involved extensive negotiations between political parties and incorporated input from the public, with approximately 1.7 million submissions received. This collaborative effort reflects the democratic ideals that underpin the Constitution and the desire to create a document that protects the rights and freedoms of all South Africans, moving forward from a history of racial oppression and apartheid.
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The judiciary
The South African Constitution, born out of the country's first democratic Constitution in 1994, outlines the structure of the judicial system in Chapter 8. The judiciary in South Africa is led by the Chief Justice, who is responsible for the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. The Chief Justice is also part of the Constitutional Court, which is South Africa's highest court and has the final decision on constitutional matters.
The Constitutional Court consists of 11 judges, including the Chief Justice, the Deputy Chief Justice, and nine other judges. This court has exclusive jurisdiction over disputes regarding the powers and constitutional status of government branches. It decides on the constitutionality of any parliamentary or provincial bills, amendments to the Constitution, and whether the parliament or president has fulfilled their constitutional obligations.
The Supreme Court of Appeal, based in Bloemfontein, is the second-highest court in South Africa. It can decide on any matter except labour and competition cases, and it can make orders concerning the constitutional validity of Acts of Parliament or provincial Acts. However, these orders must be confirmed by the Constitutional Court to come into force.
Below the Supreme Court of Appeal are the High Courts, which include the Eastern Cape High Court with four branches and the Gauteng High Courts in Pretoria and Johannesburg. There are also specialised courts, such as the Labour Court, the Land Claims Court, the Competition Appeal Court, and the Electoral Court, each with specific jurisdictions.
The Judicial Service Commission plays a crucial role in the judiciary. It advises the national government on matters relating to the judiciary and the administration of justice. It also has the power to determine its own procedures, and it is responsible for appointing judges, with the President's approval.
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International law
The South African Constitution was an integral part of the negotiations to end apartheid in South Africa. Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA). However, the CODESA negotiations broke down after the second plenary session in May 1992. The Constitution Second Amendment Act came into force on 7 October 1998 and was followed by the Constitution Third Amendment Act on 30 October 1998.
The South African Constitution's Chapter 13 deals with international law. It provides that existing agreements binding South Africa will continue to be so, and new agreements (except technical ones) will only be binding once approved by Parliament. It also states that customary international law applies in South Africa unless it conflicts with national law. The courts must interpret national law to be consistent with international law where possible.
The Interim Constitution contained 34 constitutional principles, including multi-party democracy with universal adult suffrage, the supremacy of the constitution over all other laws, a quasi-federal system, non-racism and non-sexism, equality before the law, and the protection of "all universally accepted fundamental rights, freedoms, and civil liberties". The new constitution was required to comply with these principles.
The creation of a new constitution was a highly disputed issue during 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. In contrast, the governing National Party (NP) feared that the rights of minorities would not be adequately protected in such a process and proposed that the constitution be negotiated by consensus between the parties and then put to a referendum.
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Frequently asked questions
The South African Constitution was written in 1996 and revised in 2012.
The South African Constitution was created as part of the negotiations to end apartheid in South Africa. It aimed to establish a constitutional democracy in the country.
The South African Constitution addresses several key points, including the structure of the judicial system, the protection of democracy and human rights, and the values and principles for the administration of the civil service. It also establishes a single national prosecuting authority responsible for all criminal prosecutions and outlines the process for acquiring, losing, and restoring citizenship.
Yes, the South African Constitution has been amended multiple times. The Constitution Second Amendment Act came into force on October 7, 1998, and the Constitution Third Amendment Act was enacted on October 30, 1998. These amendments addressed various issues, such as extending the term of office for municipal councils and allowing for the establishment of municipalities across provincial boundaries.
