Chapter 1 - The South African Constitution and Bill of Rights
The Constitution describes the social values of the country, and sets out the structures of government, what powers and authority a government has, and what rights citizens have. The Founding Provisions of the Constitution set out the principles and guarantees of democracy in South Africa.
Because the Constitution is the highest law in the land, it stops each new government from passing its own laws that contradict the Constitution. It is also much more difficult to change the Constitution than any other law. The Constitution therefore protects democracy in South Africa.
A government should never have unlimited power. Even governments which have been democratically elected can abuse the power that they have been given. There are cases of governments who were elected in democratic elections, and who then refused to allow further elections and became permanent rulers. Other governments abuse their power by killing people who are against them. The Constitution guards against governments in the future abusing the powers that they will have.
Our Constitution helps to guard against abuse of power by:
The Constitution is a law passed by Parliament and it is the highest law in the land. All other laws must follow it. Other laws are divided into statutes, common law and customary law:
Statutes are laws which are made by government. Laws made by the national parliament are called Acts of Parliament. Laws made by Provincial legislatures are called Ordinances, and laws made by Municipal Councils are called by-laws.
Common law means laws that have not been made by parliament or any other government. They are unwritten laws. Common law is based on Roman Dutch law (laws that were brought by the Dutch when they arrived in South Africa). The courts used these laws and developed them when they made decisions.
Customary laws are also unwritten laws. They are laws that apply to certain cultures or ethnic groups.
All these laws have to follow the Constitution. In other words, they cannot go against what the Constitution says. So, new laws must follow the Constitution and the government must change old laws or parts of old laws if they don't follow the Constitution. If a customary law or common law goes against the Constitution then a court will say it is invalid. In other words, it can't apply in the situation.
The Constitution is much more difficult to change than other laws. Parliament can change a written law (statute) if more than 50% of the members of Parliament vote to change it.
Section 74 of the Constitution says that if Parliament wants to change the Constitution then:
Section 1 of the Constitution says that South Africa is one sovereign, democratic state founded on values of human dignity, equality, human rights and freedoms. It also says that the Constitution is supreme and that there must be regular, free and fair elections where everyone can vote.
If Parliament wants to change Section 1, or Section 74, then:
Section 1 and Section 74 are very important sections, which is why the Constitution makes it very difficult to change them.
The separation of powers in the Constitution means the government's functions and power is split into 3 branches. These branches each perform a separate function and are independent of each other. The purpose of this is that they keep a check on each other. Separation of powers is an important part of democracy because it prevents any elected official or government body from abusing their powers. The 3 branches are:
The national legislature is called Parliament. Parliament makes new laws and changes old laws for the whole country. Parliament is made up of the National Assembly and the National Council of Provinces. Both of these bodies are responsible for making laws.
Each province also has a legislature called a Provincial legislature which makes laws for each province.
The legislatures at national and provincial level are elected by people in national and provincial elections every five years
The national executive is made of up the President, the vice-president and the Cabinet. The national executive is responsible for carrying out the laws, in other words, for putting the laws written by the legislature into action.
The Cabinet is made up of Ministers, such as the Minister of Health. Each Minister governs a department with public officers doing the administration.
The Ministers cannot make their own laws although they can draft new laws or change old laws and ask parliament to pass these. Ministers must make sure that the policies of the government are implemented. Parliament can also ask ministers to explain why they are carrying out policy in a particular way. In this way the Executive is accountable to the legislature.
Each province also has its executive. The Provincial executives are made up of a Premier and an Executive Council.
The judiciary is made up of judges and magistrates. They make decisions in court cases, based on the laws. These decisions then help to explain what the law means in actual circumstances. In this way, the courts check the laws that the legislature makes. They also make sure they do not go against the Constitution. The Constitutional Court has the power to say that a law is invalid if it goes against the Constitution.
People can take cases to court if they believe the actions of the executive go against the law or the Constitution. In this way, the courts act as a check on the work of the executive.
The Judiciary must be independent of the Executive and the Legislature. In this way it can make decisions that are fair, even if this goes against what the Legislature and Executive want. An independent body called the Judicial Services Commission appoints judges so these judges are independent of the government in power.
The government in South Africa is divided into three spheres: national, provincial and local. The three spheres are autonomous, but in terms of Chapter 3 of the Constitution they have to work together and coordinate things such as budgets, policies and activities, particularly those that cut across all the spheres.
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