Constitutional Law Lecture Notes: Semester 1
Pierre de Vos & Nomfundo Ramalekana
Week 1
An Introduction to Democracy, Constitutionalism and the South African Constitution
Vula Resources
The Birth of the 1996 Constitution
• Colonialism and Apartheid preceded constitutional South Africa.
• There was a stalemate between liberation forces (protests and uprising) and the
Apartheid regime (controlling the military, police and state power).
• Discussions happened behind the scenes about what would happen if SA transitioned
from an authoritarian regime to a state where everyone had a vote.
• 1988-89: The adoption of the Constitutional Guidelines by the ANC and the Harare
Declaration (didn’t stipulate how they thought the Bill of Rights would be enforced, it
was part of an effort to gain international support and isolate the Apartheid regime).
• 1990: The unbanning of the ANC, PAC, SACP and others, and the release of political
prisoners.
• 1991-93: The Declaration of Intent (for a united, non-racial SA, with a Constitution),
commencement of CODESA (open to all parties in SA, but the ANC and the NP were the
major players), and its replacement by the Multi-Party Negotiating Forum (MPNF).
• The ANC wanted the Constitution to be drafted by democratically elected
representatives, but the NP wanted the MPNF to agree on the final Constitution,
because it was still in control of the state.
• 1994-96: A 2-stage transition that brought a formal end to the NP rule, but guaranteed
some power sharing (the NP would remain part of the government for 5 years), and led
to the adoption of the 1996 Constitution (drafted by the Constitutional Assembly).
• 1993: The adoption of the Interim Constitution by the MPNF and Apartheid Parliament.
It contained 34 Constitutional Principles binding on the Constitutional Assembly.
• The Constitutional Assembly (CA) consisted of the National Assembly (400 MPs) sitting
with the Senate (90 MPs). It started work after the 1994 election and drafted a “final”
Constitution, guided by the 34 principles.
• The “final” Constitution was adopted by at least 2/3 of the CA (if it had been adopted by
more than 60% but less than 2/3, a referendum with 60% majority would have sufficed).
• The “final” text had to certified by the newly created Constitutional Court.
• The First Certification judgment confirmed that the basic structure of the Constitution
complied with the 34 principles, but identified 9 grounds/discrete instances on which
the text was not compatible with the principles (e.g. it was too easy to amend). The
, judgment was not very controversial, but presented the strange case of an
“unconstitutional Constitution.”
• The “final” text was sent back to the Constitutional Assembly to be remedied.
• The Constitution then came into effect.
• The Constitution can be amended in the future (it has been amended 12+ times to date).
• What we need to consider is how we should see the birth of the Constitution – was it
“born in sin” (i.e. a new form of colonialism) or should we view it optimistically (i.e.
transformative constitutionalism).
Interpretation of the Constitution in Context
• The Constitution doesn’t self-executive. Many provisions are framed in broad/open-
ended ways, texts can be ambiguous and there may be contentions between them.
• It is necessary for judges to interpret the Constitution in context.
• The starting point is the words contained in the text.
• If there are choices to be made, judges must look at other factors, which may sometimes
constrain them – e.g. legal precedent, judgments of other courts/courts in other
jurisdictions, common law (controversial given its history in SA) and international law.
• We need to consider:
- What role does/should the normative commitments of judges play in the
interpretation of the constitutional text?
- How does/should the impact of colonial conquest impact the interpretation of the
constitutional text?
- Is SA a one-party democracy and if so, how does/should this impact the
interpretation of the constitutional text?
Constitutionalism
• Constitutionalism = A government that acts under the authority of a written and
supreme Constitution and is also constrained by it (i.e. it limits the exercise of power).
• It creates institutions and structures of government (e.g. branches of government),
prescribes how these must operate as well as their relationship to each other (e.g.
separation of powers) and provides mechanisms for its enforcement (e.g. courts).
• Contemporary constitutional (understood prescriptively) demands that a
constitutional system adheres to the following norms and values:
- The separation of powers.
- The rule of law.
- Democratic self-government.
- The protection of human rights.
- The existence of an independent judiciary.
,• The Westminster constitutional model before 1994 was based on parliamentary
supremacy (Parliament could make any law on any topic, as long as it followed the right
procedure). This was coupled with minority white rule in SA.
• Post-1994, our constitutional model is based on constitutional supremacy and
constitutional values (see section 1 and section 2 of the Constitution).
• There was some controversy around what it means for the Constitution to be
“supreme.” Some people argued that the Constitution is for public law and other parts
of the law (e.g. common law, indigenous law, customary law) are not really part of the
constitutional system. This was debated between the CC and the SCA.
• Pharmaceutical Manufacturers Association of South Africa confirmed that “there is only
one system of law. It is shaped by the Constitution which is the supreme law, and all law,
including the common law, derives its force from the Constitution and is subject to
constitutional control.”
• This is quite a dramatic statement, in that it implies that common law (or indigenous law
or customary law) provisions that are inconsistent with the Constitution must be
declared unconstitutional, and any developments in the common law (which is very
much developed by the courts) must be done in the context of the Constitution.
• A critique of the courts is that they have not been bold enough in transforming the
common law (e.g. the law of property, which favours the interests of property owners).
• Critics argue that the concepts on which the Constitution is based are borrowed from
hegemonic North American and European legal traditions and schools of thought.
• A basic assumption of this prescriptive model of constitutionalism is that those who
exercise public power cannot be trusted not to misuse or abuse their power. For this
reason, their power is limited by:
- The government needing to retain the support of the majority of voters at regular
intervals through free and fair elections to continue serving in government.
- The government needing to respect a set of human rights claims, included in a Bill of
Rights, and exercise its powers rationally.
• However, does this model account for the fact that the power of the elected
government is also constrained by other factors (e.g. global market forces, the interests
of private capital and trade unions, the goodwill of the international community,
international financial institutions) or that other actors also exercise power?
In-Person Lecture: 14 February
The Constitution
• Purposes:
- Contains rules and possibly some kind of value system (e.g. the rule of law).
- Arranges how a society should be governed.
, - Sets limits on the interactions between people as well as people and the government
(what people or institutions exercising power are allowed and not allowed to do).
- Guides politics and social consciousness (it is a version of the story/history of our
society, or an idea of who the nation is).
• Values:
- Constitutional supremacy, and the rule of law.
- Human dignity.
- The advancement of equality, non-racism and non-sexism.
- Multi-party democracy, and free and fair elections.
• Critique:
- There is a clear gap between the society the Constitution envisions (its ideals and
promises) and peoples’ lived realities.
- The Constitution doesn’t address the effects of colonialism and Apartheid in a way
that is material and effective, because it doesn’t take into account the full extent of
the country’s history.
Online Lecture: 18 February
• A one party dominant system (one party overwhelmingly wins the elections, due to its
identity/nature, weakness of opposition parties, etc.) can have risks. In such a system,
the basic assumptions of democracy are not necessarily in place. While it is good for
people to be represented by who they choose, people who exercise enormous power
may abuse it. Comparatively, when there is a risk that the governing party will change,
the actions of the government are moderated, and they are held more accountable.
• Some academics argue that the courts took into account one party dominance and its
consequences during the time of former President Jacob Zuma, in order to make the
rules more amenable and allow for accountability. These judgments are criticised for
being too outcomes-based, and not good for the courts’ long-term legitimacy.
• Some of SA’s issues cannot be easily resolved by a constitutional text, or judgments by
the courts. The courts cannot interference in the electoral system. Parts of this system
must be operationalised through politics.
• Does a lack of access to information (which democracy depends on) lead to poor
voting decisions? People vote for based on their lived experiences. The line is only
drawn at real political manipulation (e.g. restricted freedom of expression in Zimbabwe).
Also, more access to information doesn’t necessarily mean more accurate information.
• Constitutionalism as a:
- Descriptive project = It is a more formalistic idea. There must be a Constitution and
the Constitution must regulate the exercise of public power. It doesn’t contain
normative commitments about what a democracy ought to be (e.g. no Bill of Rights).
- Prescriptive project = Envisions a political community that is committed to a system
where power is checked (e.g. separation of powers) and human rights are protected.
