Jonah Patel
South Africa's constitution has undergone several changes since the country's first constitution was negotiated in 1908. This was followed by the South Africa Act, which was passed by the British House of Commons in 1910, disenfranchising the black population. The country's second constitution was adopted in 1961, and a third in 1983, both of which continued to exclude black citizens. In 1994, an interim constitution was adopted, granting the vote to all citizens. The current constitution was signed into law on 10 December 1996, with the bill of rights as its first major section.
| Characteristics | Values |
|---|---|
| Year of Constitution | 1961, 1983, 1993, 1996 |
| Country | South Africa |
| Type of Government | Republic, Westminster system |
| Election of President | Elected by Parliament |
| Term of President | 5 years, 7 years (non-renewable) |
| Parliament | Unicameral, Tricameral |
| Legislative Power | Vested in Parliament |
| Constitutional Assembly | Two-thirds supermajority required |
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What You'll Learn
South Africa Act, 1910
The South Africa Act, passed in 1909, unified the British colonies of the Cape Colony, Natal, Transvaal, and Orange River (also known as the Orange Free State) to establish the Union of South Africa. The Act came into effect on 31 May 1910, marking the birth of the Union of South Africa as a self-governing dominion within the British Empire.
The creation of the South Africa Act was a result of a constitutional convention held between 1908 and 1909 in Durban, Cape Town, and Bloemfontein. This convention, known as the National Convention, was attended by 33 delegates representing the four colonies that would become South Africa, as well as a delegation from Rhodesia. Notably, the delegates were all white, excluding indigenous Black African, Coloured, and Asian representatives from the process. The resulting constitution, which became the South Africa Act, was largely shaped by John X. Merriman, the prime minister of the Cape Colony, and Jan Smuts, the colonial secretary of the Transvaal.
The South Africa Act served as the constitution of the Union of South Africa from 1910 until 1961, when the country transitioned into a republic under the Constitution of 1961. During this period, the Union of South Africa underwent significant political developments. Following World War I, the Union became a signatory of the Treaty of Versailles and joined the League of Nations as a founding member. In 1925, the Official Languages of the Union Act recognised both Dutch and English as the official languages of the Union, with Dutch encompassing both Dutch and Afrikaans.
The Union of South Africa initially remained under the British Crown, but its status evolved over time. With the passage of the Statute of Westminster in 1931, the Union gained equal status with the United Kingdom, and the British Parliament could no longer legislate on its behalf. The Union's sovereignty was further emphasised by the Status of the Union Act, passed by the South African Parliament in 1934, which incorporated relevant provisions of the Statute of Westminster into South African law.
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South Africa's first constitution, 1908
South Africa's first constitution was enacted by the South Africa Act of 1909, following a national convention in 1908 that represented the exclusive interests of whites. The convention, which took place in Durban on 12 October 1908, was attended by white representatives from the four colonies. These representatives united to form a government that excluded the African majority, despite protests from the latter group.
The constitution-making process was dominated by two major debates: the 'Native question' and the choice between a federal and a unitary dispensation. The latter debate cut across racial lines, with Afrikaner-ruled republics favouring a federation to maintain their independence and avoid the liberalism of the Cape. The 'Native question' referred to the issue of how to deal with the native population, with some arguing for their inclusion in the government and others for their exclusion.
The South Africa Act was passed by the British House of Commons and marked the disenfranchisement of black people. This led to the formation of the African National Congress in 1912, which sowed the seeds of the concept of black majority rule. The first Constitution for the Union of South Africa was adopted in 1910 when Britain decided to withdraw from the country's government and hand it over to white residents. This constitution gave rights to the white minority but took away the right to vote of the majority of South Africans.
Since 1910, South Africa has had four constitutions in total. The second constitution was adopted in 1961 when South Africa became a republic, replacing the Queen with a State President. The third constitution was passed in 1983, creating a tricameral parliament with separate houses for Whites, Coloureds, and Indians but no representation for Blacks. The fourth and current constitution, enacted in 1996, is the country's first democratic constitution, providing a legal foundation for the republic, setting out the human rights and duties of citizens, and defining the structure of the government.
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Constitution Second Amendment Act, 1998
The South African Constitution was written in 1996, and the Second Amendment of this constitution was enacted and signed into law by President Mandela in 1998. This amendment, officially titled the "Constitution Second Amendment Act of 1998", extended the terms of municipal councils and made changes to certain independent commissions.
The Second Amendment extended the term of office of municipal councils from four years to five years. It also modified the schedule for the transition to the post-apartheid municipal system. It allowed for the designation of alternates to replace members of the Judicial Service Commission if the members were unavailable. Furthermore, it gave Parliament the power to assign additional functions to the Public Service Commission. Finally, it renamed the Human Rights Commission to the South African Human Rights Commission.
The Second Amendment was enacted by the Parliament of South Africa and came into force on 7 October 1998, shortly after being signed by President Mandela on 28 September 1998. It was originally titled "Constitution of the Republic of South Africa Amendment Act, 1998" and was numbered as Act No. 65 of 1998. However, the Citation of Constitutional Laws Act, 2005, renamed it and abolished the practice of giving Act numbers to constitutional amendments.
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Constitution Third Amendment Act, 1998
The South African Constitution was written in 1996 and came into effect on the 4th of February 1997. It replaced the interim Constitution, which was in place while South Africa transitioned to democracy.
The Constitution Third Amendment Act of 1998 amended the Constitution of the Republic of South Africa, 1996. It pertained to municipal boundaries and the establishment of municipalities.
The Act provided that when a municipal boundary is determined across a provincial boundary, national legislation must facilitate the establishment of a municipality. The type of municipality would be agreed upon by the provincial governments concerned, and the Act would provide for the exercising of executive authority over that municipality.
The Act amended Section 155 of the Constitution of the Republic of South Africa, 1996, by adding a subsection. This subsection addressed the scenario where the criteria outlined in subsection (3) (b) cannot be met without a municipal boundary extending across a provincial boundary.
The Constitution Third Amendment Act of 1998 was assented to on the 20th of October 1998. It was enacted by the Parliament of the Republic of South Africa.
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Republic of South Africa's Constitution, 1996
The Republic of South Africa's Constitution was written in 1996. On May 8, 1996, a new constitutional text was adopted with the support of 86% of assembly members. This constitution outlines the structure of the national executive and the powers of the President, as well as the process for municipalities to be established across South Africa.
The constitution provides for the election and removal of the President by the National Assembly and limits the President to two five-year terms. It also allows for the appointment of a Cabinet by the President and holds both the President and the Cabinet accountable to Parliament.
Chapter 7 of the constitution sets out a framework for local government, requiring municipalities to be established for the entire territory of South Africa. It provides for three categories of municipalities, with some areas governed by a single municipality and others having multiple municipalities. The chapter also regulates conflicts between national and provincial legislation, outlining the circumstances under which one will prevail over the other.
The constitution also defines the principles governing the election and dissolution of houses, qualifications for membership of Parliament, quorum requirements, procedures for electing presiding officers, and the powers, privileges, and immunities of Parliamentarians. It lays down the process for enacting different types of bills into law, including constitutional amendments and ordinary bills affecting provincial matters.
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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Frequently asked questions
The South African Constitution was written in 1996 and came into effect on 4 February 1997.
The South African Constitution is the supreme law and is considered the most progressive constitution globally. It is a written constitution that comprises a Bill of Rights for its citizens.
The South African Constitution promotes justice, offers legal existence, and defines the duties and rights of the citizens of South Africa. It also provides the official languages and is supreme over all other laws in the country.
