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H W THERON
SUBMISSION TO THE CONSTITUTIONAL
COURT,
CASE Nr: CCT/23196
RE: THE APPLICATION FOR THE
CERTIFICATION OF THE NEW CONSTITUTIONAL TEXT IN TERMS OF SECTION 71 OF THE
CONSTITUTION OF THE REPUBLIC
OF SOUTH AFRICA, 1993.
In the above
application, and in accordance with the directives given by the President of the
Constitutional Court in terms of rule
15, I hereby submit the following comments
and objections regarding the certification of the Constitution adopted by the
Constitutional
Assembly on 8 May 1996:
- Although
the Founding Provisions, section 3(2) Chapter 1 of the proposed text , refers
inter alia to the RIGHTS and DUTIES of all
citizens, only the said rights are
defined, i.e. Chapter 2, with no reference to the duties and responsibilities
these rights will
entail or be subjected to.
To have a Bill of Rights entrenched in the Constitu‑tion is necessary,
but equally necessary is the re‑quirement to predetermine
and entrench the
said duties and responsibilities, or then at least the basis on which this will
be established, and by whom.
The quest ion can also be asked whether non perform‑ance, in terms of
these duties, can result in the loss of rights, and then
again, who will be the
judge of both the said non-performance and the extent to which the rights, as a
result thereof, will be affected.
My submission is therefore that the defined rights, without adequate
clarity or specifics in terms of the required counter-performances,
is de
facto not enforceable and therefore not certifiable.
- In
section 9(2) of the proposed text, the right to adopt legislature and other
measures, to promote equality of persons disadvantaged
by unfair
discrimi‑nation, can in itself be discriminatory, contravening the
stipulations of subsection (4) thereof, including
the applicable section 8(2) of
the present Constitu‑tion if applied unchecked and without predetermining
inter alia the criteria
by which the so-called "unfair” discrimination
will be judged.
Section 9(5) of the proposed text likewise allows for ‘unfair’
discrimination to be established as ‘fair’
without any indication of
the criteria to be applied.
I therefore submit that both sections 9(2) and 9(5) are potentially
discriminatory, in essence a contra‑diction in terms and,
due to the lack
of reasonable limitations, incompatible with inter alia the applic‑able
addendum 4 Constitutional Principle
nr.IV.
- In
general I wish to make the comment that a constitu‑tion should preferably
be a once-of document, able to withstand the test
of time. In many ways the
proposed text has failed to rid itself from the past and still carries the
unnecessary baggage of the
struggle.
[Editor’s Note: Letter from United Christian Action dated 31 May 19??
was attached but illegible]
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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
inform you that your submission will in due course be taken into
account by the
Constitutional Court.
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