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Chapter 1 - The South African Constitution and Bill of Rights

The South African Constitution

The Republic of South Africa will be one, sovereign, democratic state founded on the following values:

  • human dignity, equality, advancement of human rights and freedoms
  • non-racialism and non-sexism
  • the Constitution will be supreme
  • the rule of law will be supreme
  • all adults will be able to vote
  • there will be a common voter's roll
  • there will be regular elections
  • there will be a multi-party system of democratic government to make sure there is accountability and openness

Why do we need a Constitution?

Our 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 our 1996 Constitution set out the principles of democracy in South Africa.

Because the Constitution is the highest law in the land, it stops each new government from passing their own laws that contradict the Constitution. It is much more difficult to change the Constitution than any other law. The Constitution protects democracy in South Africa.

Chapter 1: Founding provisions

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 then refused to allow further elections. They made themselves permanent rulers. Some governments kill people who are against them so that they can stay in power. 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:

  • having rules about when elections should happen and what happens to parties that lose
  • making it very difficult to change the Constitution
  • making sure that no person or government body has too much power
  • splitting power among different branches of government (the separation of powers)
  • setting out the human rights that people have in a Bill of Rights
  • creating independent courts and commissions that will protect people's rights, as well as monitor the government to make sure that it is doing its work properly
  • making it compulsory for all government bodies to be accountable and transparent to the public

The relationship between our Constitution and other laws

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 can be 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.

Example

Mary Sibiya's husband dies. There is a customary law that says women can't inherit land from their husbands who have died. Mary is told by her husband's eldest son that he owns the land now that his father is dead. Mary wants to take her case to court because she thinks it is unfair. In this situation the court would look at the customary law and at what the Constitution says. If it thinks the customary law goes against the right to equality and non-discrimination then it will say the law is invalid.

Changing or amending our Constitution

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:

  • at least two-thirds (66%) of the members of Parliament must vote to change it
    AND
  • at least 6 provinces in the National Council of Provinces must vote to change it

The National Council of Provinces (NCOP)

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 which says how Parliament can change the Constitution, then:

  • at least 75% of the members of Parliament must vote to change it
    AND
  • at least 6 provinces in the National Council of Provinces must vote to change it

Section 1 and Section 74 are very important sections, which is why the Constitution makes it very difficult to change them.

Read Section 74 of the Constitution

The separation of powers

The separation of powers in the Constitution means the government's functions and power is split into 3 branches. These branches are independent of each other and 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 Legislature which makes the laws
  • the Executive which enforces (carries out) the laws
  • the Judiciary that interprets the laws

The legislature

The national legislature (the legislature for the whole country) is also 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.

The executive

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 Land and Agriculture. Each Minister governs a department with public servants 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 followed. 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

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.

Example

  1. Parliament (the legislature) writes a new law that says all children at school must get a free meal at lunch time. The Minister of Education (the Executive) gives the department of education instructions to carry out the new law. But when Thokozile Mkhize goes to school she doesn't get a free lunch. The school refuses to give lunch to any of the students. Thokozile's father and mother go to court to demand that the school give the students lunch. The court tells the school to do this because this is what the law says.
  2. Parliament passes a law that says doctors who are Rastafarians cannot work in state hospitals. The Department of Health gives instructions to all hospitals to dismiss all Rastafarian doctors. These doctors go to court and say that this law is invalid because it discriminates against people on grounds of their religion and it goes against their rights in the Constitution. The court agrees and so the law is declared invalid.

The spheres of government

The government in South Africa is divided into three spheres. These used to be called "levels of government", but because all three spheres are autonomous, it is better not to refer to them as levels. Local government is regarded as a sphere of government in its own right and is no longer a function or just one of the arms of provincial or national government. Even though the three spheres are autonomous, Chapter 3 of the Constitution says they have to work together and coordinate things such as budgets, policies and activities, particularly those that cut across all the spheres.

  • National government makes and carries out laws about issues which affect the whole country. These are issues like economic policy, defence and relationships with other countries. National parliament makes laws called acts, which the whole country has to follow.

Chapter 4: Parliament

  • The are some issues that both national and provincial government can make and carry out laws about. Schedule 4 of the Constitution lists those issues. These are things like health, welfare and education. However, national government is responsible for setting national standards on these issues, so laws written by provinces must follow national standard-setting legislation.

Schedule 4

  • The 9 provincial governments deal with things that affect their own provinces. Schedule 5 of the Constitution lists the issues that provincial government is responsible for. Provincial legislatures make their own laws called ordinances. People in each province have to follow the laws for that province. The provinces can draw up their own constitutions, but these constitutions cannot go against the national Constitution.

Chapter 6: Provinces
Schedule 5

  • Local governments deal with things that affect the local area that they control. Part B of Schedules 4 and 5 of the Constitution says what things local government is responsible for. This includes collecting rubbish, parking, electricity and parks. Laws written by local governments are called by-laws. These have to be followed by people in that area.

Chapter 7: Local government
Schedule 4
Schedule 5
LOCAL GOVERNMENT

Electing governments

There are different ways to elect representatives to parliament. The Constitution says people must be elected according to the system of proportional representation.

Proportional representation

This means that parties get a certain number of seats in parliament according to the percentage of votes that they get in an election. So, for example, if your party gets 15% of all the votes in the country then it gets 15% of the seats in Parliament.

There are 400 seats in the national parliament. So for every 0.25% of the vote a party gets 1 seat. This example shows how seats are allocated.

Example


If a party gets this % of the votes:


it will get this number of seats:

African National Congress
National Party
Inkatha Freedom Party
Pan-Africanist Congress

62,5 %
20 %
10 %
1,75 %

250 seats
80 seats
40 seats
7 seats

Constituency-based elections

This is another way to elect a government. According to this system, the country is divided up into voting areas called constituencies. Each political party chooses one person to represent the party in each constituency. This person is called the party's candidate. People in the constituency vote for the candidate of their choice. So, a person only goes to parliament if he or she gets the most votes in that constituency.

Constituency-based elections

This is another way to elect a government. According to this system, the country is divided up into voting areas called constituencies. Each political party chooses one person to represent the party in each constituency. This person is called the party's candidate. People in the constituency vote for the candidate of their choice. So, a person only goes to parliament if he or she gets the most votes in that constituency.

What does proportional representation mean?

  • Only members of parties can stand for election.
  • People vote for the party they like, not for a person they like. Each party chooses its own list of candidates for parliament.
  • The party holds all its seats in parliament. The party appoints its own members to take those seats, according to party lists. It can appoint a different member to take over a seat. So parties have central control over the selection of Members of Parliament (MPs).
  • MPs do not represent the voters of a specific constituency or area.
  • MPs are directly accountable to their party.
  • If an MP resigns or is expelled from the party then he or she loses the seat. The party then appoints another person in that person's place. Voters know that the party they voted for will keep its seats, even if individual MPs change parties.
  • Minority parties can win seats if they have enough voters in the country altogether who support them, even if they would not have enough support to win in any one area.

What does the constituency-based system mean?

  • Independent candidates, who don't belong to any party, can stand for parliament. They declare themselves candidates in a particular constituency.
  • People vote for a candidate, either because they like the party that the candidate represents or because they like the candidate as a person.
  • Individual MPs hold seats.
  • MPs represent the voters in a specific constituency.
  • MPs are directly accountable to people in their area who have voted for them.
  • MPs keep their seats and can move from one party to another if they choose. The political party does not have the power to take away their seat. Voters can't be sure that the MP they voted for will stay with the same party.
  • Minority parties are likely to suffer in an election based on this system, because they may not have enough voters who support them in any one constituency.
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