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Summary Introduction to Law, Term 4
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Introduction to Law 171: NotesTerm 4: Historical development of South African constitutional law and the Bill of Rights
Table of Contents
1. COLONIAL AND APARTHEID CONSTITUTIONALISM ............................................................................................ 1
INTRODUCTION ............................................................................................................................................................... 2
SA’S FIRST CONSTITUTIONAL CRISES ............................................................................................................................... 3
HISTORICAL-LEGAL CONTEXT: FROM COLONIAL CONQUEST TO DEMOCRACY ....................................................................... 3
PRE-UNION DEVELOPMENTS ............................................................................................................................................ 3
SHARPEVILLE 21 MARCH 1960 ....................................................................................................................................... 5
STATE OF EMERGENCY ................................................................................................................................................... 5
CREATION OF THE SOUTH AFRICAN STATE ....................................................................................................................... 6
UNION CONSTITUTION .................................................................................................................................................... 6
CONSTITUTIONAL CRISIS OF THE 1950’S .......................................................................................................................... 7
EXCLUSION OF JUDICIAL REVIEW ..................................................................................................................................... 8
2. TOWARDS A NEGOTIATED CONSTITUTIONAL REVOLUTION ............................................................................. 8
WINDS OF CHANGE IN SA – REVOLUTION ....................................................................................................................... 10
CHANGES BROUGHT ABOUT BY THE INTERIM CONSTITUTION ........................................................................................... 10
CONSTITUTIONAL NEGOTIATIONS .................................................................................................................................. 11
PAVING THE WAY – NEGOTIATION A PEACEFUL TRANSITION ............................................................................................. 11
COMPETING CONSTITUTIONAL VISIONS ........................................................................................................................... 12
2-STAGE TRANSITION .................................................................................................................................................... 14
3. THE FINAL CONSTITUTION .................................................................................................................................... 12
DRAFTING THE FINAL CONSTITUTION ............................................................................................................................. 14
ADOPTION OF THE "FINAL" CONSTITUTION ...................................................................................................................... 14
THE 2-STAGE PROCESS - AN EVALUATION ...................................................................... ERROR! BOOKMARK NOT DEFINED.
CONTINUITY AND CHANGE ............................................................................................................................................. 15
SUPREMACY OF THE CONSTITUTION .............................................................................................................................. 15
A TRANSFORMATIVE CONSTITUTION .............................................................................................................................. 16
THE CONSTITUTION AS A BRIDGE ................................................................................................................................... 16
BILL OF RIGHTS ............................................................................................................................................................ 17
HUMAN RIGHTS ............................................................................................................................................................ 17
SOCIO-ECONOMIC RIGHTS............................................................................................................................................. 17
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA V GROOTBOOM 2000 (CC) .............................................................. 19
SOOBRAMONEY V MINISTER OF HEALTH 1998 (CC) ....................................................................................................... 20
1. Colonial and apartheid constitutionalism
(a) Content
In this lecture, a broad overview is given of South Africa’s pre-democratic constitutional history.
Students must be familiar with the following broad historical developments:
• Colonialism
• The 1909 Union Constitution
• Independence from Britain
• The rise of parliamentary sovereignty and the exclusion of judicial review
• Racial segregation
• Removal of the “coloured vote”, the constitutional crisis of the fifties
• The “Republican” Constitution of 1961
• The 1983 (“tricameral”) Constitution
1
, • The state of emergency in the eighties
(b) Prescribed reading
•
• J de Waal & I Currie The New Constitutional and Administrative Law (2001) 40-71
• P de Vos, W Freedman et al South African Constitutional Law in Context (2014) 5-15
(c) Additional (non-compulsory) reading
•
• Harris v Minister of the Interior 1952 2 SA 428 (A)
• Minister of the Interior v Harris 1952 4 SA 769 (A)
• Collins v Minister of the Interior 1957 1 SA 552 (A)
•
(d) Questions
•
• What is meant by the bifurcated nature of colonial rule and of the Union of South Africa?
• What does parliamentary sovereignty mean? What constraints on the sovereignty of South Africa’s
Parliament existed after 1910? How were these constraints removed?
• How did parliamentary sovereignty aid the government in its quest to establish a racially segregated
constitutional order?
• What was the significance of the cases in which the constitutionality of the abolition of the “coloured
vote” was challenged? How did these cases impact on the ability of the courts to challenge the
injustices of the apartheid era?
Introduction
• “A constitution also reflects the world view of its drafters, the historical mistakes they have made or
witnessed, and their fears.” – Thuli Madonsela
• South Africa’s constitutional history has hallmarks of many interrelated cultural dynamics.
• Apartheid and a bifurcated state existed long before the NP (e.g. the Langden commission, the
1913 Land act, etc.). This is a form of apartheid too.
o “By 1903, the Native Affairs Commission (Langden Commission) had developed a vision for
a South African Union based on territorial segregation of black and white as a permanent
mandatory feature of public life. The Commission endorsed the practice of creating “native
reserves” and accepted the notion that this involved special obligations on their part to the
colonial state.” De Vos
• Purpose of Apartheid policies
o The hopes, dreams, fears and world view of the white settler community that joined the
African population from 1652;
o The pushback by the indigenous communities, later supported by global anti-apartheid
efforts and;
o Policy efforts to control and accommodate the push back and aspirations of the indigenous
communities
• SA legal system, retained elements of parliamentary supremacy, was constrained by the continued
application of the colonial laws validity act (included the repugnancy clause), required parliament to
follow a special procedure to amend a small number of special clauses in the union constitution.
• “By then kingdoms such as the Zulu Kingdom, Swazi kingdom had been existence and having their
own systems of government and ownership of land for centuries. ” Thuli Madonsela
• “Native reserves were held communally and administered by tribal chiefs who were said to have
transferred their sovereign right over land and absolute political authority to the Crown peacefully
through a process of peaceful annexation. The assumption of the peaceful annexation of land was a
fiction which served the interest of colonial rulers” de Vos.
• Bifurcated nature of SA state led to several laws
o Black Administration Act, 1927;
§ Reaffirmed rule of chiefs as inferior to white government
§ Governor-general = supreme chief
§ Built on Glen Grey Act & subverted government structures
2
, § Customary law = limited to Private Law civil disputes
o Bantu Authorities Act 1951;
§ Homelands
§ “self-governing” territories
§ Eventually some were granted independent status
§ Role of traditional leaders manipulated through colonial apartheid
SA’s first constitutional crises
• Africans removed from the common voter’s roll in 1936. (Ndlwana v Hofmeyr challenge saw courts
refuse to intervene) Ndlwana case = unsuccessful; where Ndlwana sued the minister of internal
affairs because the new parliament according to the Westminster statute was allowed to make laws
and took away the right of indigenous people to vote. Timid approach by the courts.
Historical-legal context: from colonial conquest to democracy
• Colonial approach to our history;
o SA’s political history begun in 1652 when Jan Van Riebeeck arrived in the Cape and the
process of colonization formally commenced.
o SA’s constitutional history begun in 1909 when the Union of South Africa came into
existence – passing of Union of South Africa Act of 1909 (South Africa Act or Union
Constitution) by the British Parliament.
• Not easy to ignore though because;
o Pre-colonial history was never written down.
o Insufficient clarity on the multitude of governing structures through which pre-colonial
indigenous populations of SA governed themselves.
o South Africa, with its current borders, legally only came into existence in 1910.
• Legal Pluralistic nature of SA’s society and legal culture.
o Legal pluralism refers to the idea that in any one geographical space defined by the
conventional boundaries of a nation state, there is more than one law or legal system.
Pre-union developments
• 1853;
o In the Cape, an executive government emerged with a British-appointed Governor & an
advisory council of white settlers.
o This developed into a representative form of Gov. with an appointed governor but an elected
legislature.
• 1858;
o Constitution was blatantly racist
o “The People desire to permit no equality between coloured people and white inhabitants,
either in Church or State.”
• 1872;
o Responsible government; Governor-General representing the British Crown & an elected
legislature – whose support was needed for the formation of an executive council.
o Locally representative executives governed some territories.
o British appointed Governor-General had to approve legislation.
o G-G had veto (a constitutional right to reject a decision or proposal made by a lawmaking
body) power over bills.
o British Gov. power to disallow bills passed by the colonial legislature within 1 year
§ This nullified these bills.
§ Governance structures mirrored the Westminster system.
o Governing structures established the principle of supremacy of the legislature.
o Legislature could pass any legislation as long as it followed procedure.
o Courts had no power to invalidate laws even if they infringed on the rights of citizens.
o Various forms of governance & customary powers of indigenous leaders remained largely
intact as the British extended their colonial domination across Southern Africa.
o But eventually the colonial governments became the primary source of the traditional
leaders’ authority.
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