How does the constitution work?
What is the function of South Africa’s Constitution?
The Constitution is of crucial importance for every person who lives in South Africa for the following reasons:
- It guarantees our most basic rights, including our right to life, freedom, property and to participate freely in our democratic system.
- It articulates the values for which the new South Africa stands and the goals for which we strive;
- It actively promotes the equality of all South Africans and prohibits unfair discrimination of any kind. It entrenches our right to practice our religion and to speak and educate our children in the language and cultural traditions of our choice. This is also especially important for cultural, political and religious minorities. The majority can usually secure its interests through its control of Parliament and the levers of state power. Minorities on the other hand are often dependent on the Constitution and the law for the protection of their most important interests.
- It provides a blueprint for peace, justice and harmony that was freely negotiated and accepted by parties representing substantial majorities from all our communities. This is particularly important for a country like South Africa, with a complex population and a history of division and conflict.
How To Find Your Way Around the Constitution
One of the most remarkable features of our Constitution is that the drafters of the text wanted it to be written in plain language, as free as possible from complicated legal terms so that it could be read and understood by the majority of South Africans. This was achieved and the Constitution is easy to read and understand and is not in the least bit intimidating to a person who has no legal training. However, there are some basic legal stylistic devices or concepts used in the Constitution. These can, however, be easily learned, so that it need not be at all confusing to the non-lawyer. These are explained below.
The Constitution of the Republic of South Africa, 1996 (the Constitution) is made up of 14 Chapters and each Chapter is divided into sections. There are also [seven Schedules] at the end of the Constitution. Unlike the various divisions of the Chapters, which we call sections, the divisions of each Schedule are called items.
[Chapter 1] of the Constitution is entitled ‘Founding Provisions’. This Chapter contains those constitutional values upon which South Africa is founded. [Section 1] of [Chapter 1] states that these include the fact that South Africa is a democracy founded on the values of
- ‘human dignity, the achievement of equality and the advancement of human rights and freedoms.
- Non-racialism and non-sexism.
- Supremacy of the constitution and the rule of law.
- Universal adult suffrage, a national common voters' roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.’
[Section 2] of [Chapter 1], the supremacy clause, is, arguably, the most important section because it states that ‘the Constitution is the supreme law of the Republic’ and that any law or conduct that does not comply with the Constitution will be deemed invalid. Importantly, this invalidity works retrospectively ( backwards in time) so that when a law is declared and confirmed to be invalid by the Constitutional Court, that law is deemed to have been invalid from the date when the Constitution came into operation; 4 February 2007.
Amendments of the Constitution
[Section 74] of [Chapter 4] of the Constitution deals with how various Chapters in the Constitution may be amended. In order to amend either [section 74] itself, or anything in [Chapter 1] of the Constitution, a 75% majority is needed in the National Assembly in conjunction with a majority of at least six of the nine provinces in the National Council of Provinces (NCOP). [Chapter 2] of the Constitution (the Bill of Rights, discussed below) requires a two-thirds majority in order to be amended it and six of the nine provinces in the NCOP. All other provisions of the Constitution also need a two-thirds majority, but the NCOP approval is only required in limited circumstances set out in [Section 74(3)(a)].
The Bill of Rights
[Chapter 2] of the Constitution ( [sections 7 to 39] ) makes up what is referred to as the [Bill of Rights]. Each arm of the government; the Executive, Legislature and the Judiciary has its own Chapter in the Constitution. The sections in these Chapters outline what the powers and duties of each governmental branch are. The Bill of Rights comprises all the rights and duties of everyone within the Republic of South Africa. Importantly, the Constitution’s rights and duties (in terms of [section 8(2)] of the Constitution) apply to government, organs of state, the judiciary, ordinary citizens (natural persons) and corporate entities (juristic persons). However, unlike the duties imposed on government, juristic and natural persons are bound by the rights and duties only to the extent that it is applicable taking into account the nature of the particular right or duty. For example, it would be hard to imagine how the right to life could be claimed by a juristic person.
Limitations of the Rights included in the Bill or Rights
Another important facet of the Bill of Rights is [section 36]. Section 36 is known as the limitation clause. This clause contains the important constitutional notion that rights are not absolute and that all rights can be limited. For example, the right to freedom of expression ( [section 16]) could, if used in an absolute manner, limit the right to have one’s inherent human dignity respected and protected ([section 10] ). [Section 36] dictates that any limitation of a right can only be constitutionally valid if that limitation is one that is imposed, typically, by an Act of Parliament (a ‘law of general application’) and the limitation has to be one that would be considered ‘reasonable and justifiable in a democratic society based on human dignity, equality and freedom, taking into account all relevant factors’.
Another important aspect to note about the limitation of rights is that there are certain rights within the Bill of Rights that contain, in addition to the overarching [section 36] limitations clause, their own internal limitation clauses. Using the example of section 16 (the right to freedom of expression) again, one sees that the right to express oneself freely is internally limited by section 16(2) which says that freedom of expression does not extend to: ‘(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’
Rights that cannot be claimed immediately
Another set of rights that are subject to internal limitations clauses are those rights referred to as socio-economic rights. Socio-economic rights include, amongst others, the right to access to housing, the right to sufficient food and water. To a lesser or greater extent, most of these rights are internally limited by the fact that the government only has to realise these rights progressively and only to the extent that there are available resources. This means, for example, that one cannot, by right, claim a house, unless the government has decided it has the resources to provide that house.
State Institutions Supporting Constitutional Democracy
[Chapter 9] of the Constitution is another important Chapter. This Chapter outlines the powers and duties of various independent bodies called ‘State Institutions Supporting Constitutional Democracy’. These [Chapter 9] institutions are put in place for the benefit of the public and are given broad powers to investigate both governmental conduct at any level and the conduct of certain individuals and take remedial action where necessary. Some of the most important of these institutions are: The Public Protector, the South African Human Rights Commission, the Independent Electoral Commission, who run our elections in order to guarantee that they are free and fair and the Auditor-General who audits and reports on the financial management of government.