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REPUBLIC OF SOUTH AFRICA
Department of Arts, Culture, Science and
Technology
BUREAU OF HERALDRY
[Date Fax received: 29 May
1996]
The Registrar
Constitutional
Court
Braamfontein
SEAL OF THE REPUBLIC: OMISSION FROM THE NEW
CONSTITUTION
- The
Constitutional Court has invited public comment on the draft of the new
Constitution, prior to its certification.
- In
the light of this invitation I would like to bring to the Court’s
attention what seems to be a glaring omission which could
have far-reaching
implications.
- What
is most disturbing is that I can find no reference in the new Constitution, as
adopted by the Constitutional Assembly on 8 May
1996, to the Seal of the
Republic.
- This
seal was provided for in Section 2(3) of the Constitution of the Republic of
South Africa Act, No.200 of 1993, and in the previous
Constitutions of 1961 and
1983.
- In
line with international practice, Section 83(3) of the Constitution of the
Republic of South Africa Act, 1993, prescribes that
‘The signature of the
President on any instrument shall be confirmed by the seal of the
Republic’.
- Apart
from being impressed on the signed original of legislation the seal of the
Republic, to mention but two examples, is also used
to certify the commissions
of officers in the Services, and consular appointments. Certification oft he
latter appointments is,
in the international context, of particular
relevance.
- The
importance of the national or ‘Great Seal’ as an instrument of
government may be judged from the fact that it is traditionally
considered to be
the supreme emblem of sovereignty, the only instrument by which on solemn
occasions the will of the Head of State
can be expressed. Absolute faith is
universally given to every document purporting to be under the ‘Great
Seal’, as
having been duly sealed with it by the authority of the Head of
State. It is my understanding that the seal of the Republic is also
impressed
on international treaties and agreements.
- It
is therefore unthinkable that the new Constitution contains no reference to the
seal of the Republic - the supreme emblem of sovereignty
- and that section 82
of the new Constitution, for example, makes no provision for the formal sealing
of legislation.
- The
failure to make provision for the seal of the Republic in the new Constitution,
would presumably imply its abolition and make
its continued use
unconstitutional, with far-reaching implications.
- In
the circumstances, may I suggest that section 5 of the new Constitution be
expanded to make provision for both the national flag
and national seal. This
could be done as follows:
‘National flag and seal of the Republic
5.1 The national flag of the Republic is black, gold, green, white, red and
blue, as described and sketched in Schedule 1.
5.2 The seal of the Republic under the previous Constitution shall be the
seal of the Republic under this Constitution.
- The
latter part of this proposed amendment would be in line with the provision
incorporated into Section 2(3) of the Constitution
of the Republic of South
Africa Act, No.200 of 1993.
- Should
the design of the seal of the Republic later change, this could be addressed by
an appropriate amendment to the Constitution
but in the interim, at least, it
would seem to be of critical importance that the Seal of the Republic - as the
supreme emblem of
sovereignty - should not be left out of the new
Constitution.
Yours faithfully,
STATE HERALD
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Reference: CCT 23/96
FOR ATTENTION:
MR F G BROWNELL
Bureau of Heraldry
Department of Arts, Culture,
Science and Technology
Pretoria
Dear Mr.
Brownell:
CERTIFICATION OF NEW CONSTITUTIONAL TEXT
Thank
you for your submission of 29 May 1996.
I have been asked by the
President of the Constitutional Court to advise you as follows:
- The
Constitutional Court is required in terms of section 71 of the Constitution to
certify whether or not the constitutional text
adopted by the Constitutional
Assembly complies with the 324 constitutional principles set out in Schedule 4
of the Constitution.
- The
Constitutional Court cannot add to, amend or delete any of the provisions of the
constitutional text drafted by the Constitutional
Assembly.
- Should
you contend that the constitutional text as adopted by the Constitutional
Assembly and submitted to the Constitutional Court
for certification does not
comply with the constitutional principles set out in Schedule 4, you should set
out in writing the particular
Constitutional Principle/s that have not been
complied with, and submit such in writing to me by not lager than 31 May 1996.
Any
such contention will be taken into account by the Constitutional Court when
it decides whether or not the Constitutional text adopted
by the Constitutional
Assembly complies with the said constitutional principles.
MS M NIENABER
------
REPUBLIC OF SOUTH AFRICA
Department of Arts,
Culture, Science and Technology
BUREAU OF HERALDRY
Dear Ms.
Nienaber
OMISSION FO THE ‘SEAL OF THE REPUBLIC’ FROM THE
NEW CONSTITUTION
Thank you for your letter CCT 23/96 of 30 May 1996,
in answer to my submission of 29 May 1996.
In reply, may I submit for the
kind consideration of the Constitution Court the following contention that the
constitution text adopted
by the Constitutional Assembly and submitted t the
Constitutional Court for certification, does not fully comply with one of the
constitutional principles set out in Schedule 4 of the present
constitution.
- In
terms of the provisions of Constitution Principle IV, in Schedule 4 of the
Constitution of the Republic of South Africa, No.200
of 1993, ‘The
Constitution shall be the supreme law of the land. It shall be binding on all
organs of the State at all levels
of government’.
- This
is as it should be, but in my humble opinion the integrity of the Constitution
as ‘the supreme law of the land’ is
compromised by it not making
specific provision for the ‘Seal of the Republic’.
- The
requirement that instruments of State be sealed, in addition to being signed, is
and always has been an important security measure
against fraud and
misrepresentation. Since the founding of the Union of South Africa in 1910,
there has been a consistent provision
for the sealing and thus certifying of the
authenticity of instruments of State.
- Under
the Letters Patent constituting the Office of Governor-General issues under
Royal Warrant of 29 December 1909 and published
for general information in
Government Gazette No.1 of 31 May 1910, section II provides
that:
‘There shall be a Great Seal of and for the Union, which the
Governor-General shall keep and use for sealing all things whatsoever
that shall
pass the said Great Seal ...’
- Subsequent
to the passing of the Statute of Westminster in 1931, the South African
Parliament passed the Royal Executive Functions
and Seals Act, 1934 (Act No.70
of 1934), section 1 of which provided for a Royal Great Seal and Royal Signet
for the Union of South
Africa.
- Section
4(2) of this Act prescribed that ‘The King’s sign manual shall
further more be confirmed by the Great Seal on
all royal proclamations and he
may, by proclamation, prescribe from time to time which other public instruments
bearing his sign
manual shall pass either the Great Seal or the
Signet’.
- Section
4(3) of this Act further prescribed that ‘The Keeper of the Seals shall
affix either the Great Seal or the Signet, as
the case may be, to any instrument
bearing the King’s sign manual and the countersignature of one of His
Majesty’s Ministers
of State for the Union and required to pass either the
Great Seal or the Signet.
- In
the Republic of South Africa constitution Act, 1961 (Act No.32 of 1961), section
18)1) prescribes that ‘There shall be a
Seal of the Republic ...’,
which in terms of section 18(2) ‘shall ... be used on all public documents
on which the Royal
Great Seal or the Royal Signet of the Union of South Africa
or the Governor-General’s Great Seal was immediately prior to the
commencement of this Act required to be used’.
- Section
22(1) of this Republic of South Africa Constitution Act, 1983 (Act No.110 of
1983) once again provides that ‘There shall
be a seal of the Republic
..’ and section 22(2) states that it shall ‘save in so far as may
otherwise be determined by
the State President, be used on all public documents
on which it was required immediately prior to the commencement of this
Act’.
- Section
2(3) of the Constitution of the Republic of South Africa Act, No.200 of 1993
prescribed that “...the seal of the Republic
under the previous
Constitution shall be the .... seal of the Republic under this
Constitution’.
- The
importance of the ‘Great Seal’ or ‘Seal of the Republic’
as the supreme emblem of sovereignty has thus
enjoyed an unbroken recognition
since the establishment of the Union of South Africa on 31 May
1910.
- Since
all executive acts by the President are executed under the Constitution, which
in terms o Constitutional Principle IV, ‘shall
be in supreme law of the
land’, I believe that the new Constitution does not comply fully with this
principle in that it fails
to provide, by mean of the ‘Seal of the
Republic’ for due certification of the President’s signature on
instruments
of State.
- The
importance of the national or ‘Great Seal’ as an instrument of
government may be judged from the fact that it is traditionally
considered to be
the supreme emblem of sovereignty, the only instrument by which on solemn
occasions the will of the Head of State
can be expressed. Absolute faith is
universally given to every document purporting to be under the ‘Great
Seal’, as
having been duly sealed with it by the authority of the Head of
State. It is my understanding that the seal of the Republic is also
impressed
on international treaties and agreements.
- The
failure to make provision for the seal of the Republic in the new Constitution,
would presumably imply its abolition and make
its continued use
unconstitutional, with far-reaching implications.
- In
the circumstances may I suggest that section 5 of the new Constitution be
expanded to make provision for both the national flag
and national seal. This
could be done as follows:
‘National flag and seal of the Republic:
5.1 The national flag of the Republic is black, gold, green, white, red and
blue, as described and sketched in Schedule 1.
5.2 The seal of the Republic under the previous Constitution shall be the
seal of the Republic under this Constitution.
- The
latter part of this proposed amendment would be in line with the provision
incorporated into Section 2(3) of the Constitution
of the Republic of South
Africa Act, No.200 of 1993.
- Should
the design of the seal of the Republic later change, this could be addressed by
an appropriate amendment to the Constitution
but in the interim, at least, it
would seem to be of critical importance that the Seal of the Republic - as the
supreme emblem of
sovereignty - should not be left out of the new
Constitution.
Yours faithfully,
STATE HERALD
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