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[1996] ZAConAsmRes 63
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Certification of the National Constitution [1996] ZAConAsmRes 63 (4 June 1996)
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CERTIFICATION OF THE NATIONAL CONSTITUTION "Univerally Accepted" Section 3: Limitation of rights Section 37: States of Emergency Section 9: Equality Section 10: Human Dignity Section 11: Life Section 12: Freedom and security of the person Section 13: Slavery, servitude and forced labour Section 14: Privacy Section 15: Freedom of religion, belief and opinion Section 16: Freedom of expression Section 17: Assembly, demonstration, picket and petition Section 18: Freedom of association Section 19: Political rights Section 20: Citizenship Section 21: Freedom of movement and residence Section 22: Freedom of trade, occupation and profession Section 23: Labour relations Section 24: Environment Section 25: Property Section 26: Housing Section 27: Health care, food, water and social security Section 28: Children Section 29: Education Section 30: Language and Culture Section 3 1: Cultural, Religious and Linguistic Communities Section 32: Access to Information Section 33: Just administrative action Section 34: Access to courts Section 35: Arrested, detained and accused persons Comparison of the Bill of Rights and the Two Covenants CPIV CPIV CPV CPVII CPVII CPVII CP I CP VI Separation of Function Checks and Balances CP VIII Representative Government Multi-party Democracy Regular Elections Universal Adult Suffrage Common Voters' Roll In General, Proportional Representation CP IX Freedom of Information in the Legislative Process (a) National Government (b) Provincial Government Freedom of Information and Executive Decisions CP X National Government Provincial Government Municipal Councils CP XIV CP XV Special Procedures Special Majorities CP XVI Levels of Governments CP XVII Democratic Representation No Derogation from Principle XIII CP XXIV Framework for Local Government Powers, functions, and other features of local government CP XXV Fiscal powers and functions not common to all spheres Different Categories of Local Government CP XXVI CP XXVII Provincial Representation Recommendations of the Commission Factors to be taken into account CP XXIX CP XXX CP XXXI Defence Force Police Service Intelligence Services CP XXXII CP XXXIII OBJECTIONS INTRODUCTION DP OBJECTION 1 DP OBJECTION 2 DP OBJECTION 3 DP OBJECTIONS 3.3. AND 3.4 DP OBJECTION 3.5 DP OBJECTION 3.6 DP OBJECTION 3.7 DP OBJECTION 3.8 DP OBJECTION 3.9 DP OBJECTION 3.10 DP OBJECTION 4.1 DP OBJECTION 4.2 DP OBJECTION 4.3 DP OBJECTION 4.4 CP XIII Indigenous law as a source of law Provincial constitutions and traditional monarchs A. CONSTITUTIONAL PRINCIPLES IN RELATION TO TEXT B. TEXT IN RELATION TO CONSTITUTIONAL PRINCIPLES C. CPs, NEW TEXT AND 1993 CONSTITUTION D. PROVINCIAL LEGISLATIVE POWERS: 1993 CONSTITUTION vs TEXT. E. PROVINCIAL EXECUTIVE POWERS: 1993 CONSTITUTION vs TEXT F. AFFIDAVIT OF HASSEN EBRAHIM
Vote on Second Reading of the Constitution of the Republic of South Africa
Bill [B34A - 961 by all members of the Constitutional Assembly: No of members present: 435 No of members in favour of the Question: 421 No of members opposed to the Question: 2 No of members abstaining: 12 Vote on provisions of the Bill relating to the boundaries, powers and
functions of provinces, by members of the Constitutional Assembly
who are
members of the Senate: No of members (i.e. Senators) present: 83 No of members in favour of the Question: 80 No of members opposed to the Question 0 No of members abstaining 3 A certificate to the effect that the text was passed in accordance with the
procedures and the necessary majorities has been filed
by the Chairperson of the
Constitutional Assembly, Mr. Cyril Ramaphosa and the Secretary of the
Constitutional
Assembly.* * Inkatha Freedom Party ('IFP') members of the National Assembly and of the
Senate were absent during the deliberations and the voting
in the Constitutional
Assembly. Their numbers are: Total IFP members in National Assembly: 43 Total IFP Members in Senate: 5 Total IFP Members of Constitutional
Assembly: 48
a historic bridge between the past of a deeply divided society
characterized by strife, conflict, untold suffering and injustice,
and a future
founded on the recognition of human rights, democracy, and peaceful coexistence
and development opportunities for all
South Africans, irrespective of colour,
race, class, belief or sex. As the Court has stated*, the Constitution is a historic bridge in two
senses: a bridge between the past and the present, and also
between the present
and the future, which will be governed in terms of the new Constitution. The
most important element in the building
of that bridge is the Constitutional
Principles. We submit that the Constitutional Assembly has satisfied its
obligation to pass
a constitutional text which accords with the Constitutional
Principles, as it was required to do by section
71. * Executive Council of the Western Cape Legislature and Others v President of
the Republic of South Africa and Others, [1995] ZACC 8; 1995 (4) SA 877 (CC) at 895D-G per
Chaskalson
P.
(a) provides for and protects the fundamental rights, freedoms and civil
liberties which are universally protected; (b) establishes an independent judicial system; (c) provide democratic structures and functions of government with the necessary checks and balances; (d) provide the allocation of national, provincial and local powers; (e) recognise traditional authorities and the right to
self-determination.
_______________________________________________________________________________
_______________________________________________________________________________ * Thomas Karis and Gail M. Gerhart: Protest to Challenge, A Documentary
History of African Politics in South Africa 1882 - 1964. Vol. 2, pp.
209-211: Africans' Claims in South Africa including "The Atlantic Charter from
the Standpoint of Africans within the
Union of South Africa" and "Bill of
Rights" adopted by the ANC Annual Conference. ** Adopted by the Congress of the People in on June 26 1955 in A
Documentary History supra, Vol. 3, at p. 205-208. *** (1989) 5 SAJHR, p. 258-260. For the meaning and effect of the Harare
Declaration and the ANC's constitution guidelines see: J.D.
van der Vyver (1989)
5 SA JIIR 133. The Democratic Draft Bill of Rights "Freedom under the Rule of
Law: Advancing Liberty in the
New South Africa" was published in May 1993. 'The
National Party Government published "Proposals on Fundamental Rights" in
1992.
_______________________________________________________________________________ * (1994) 57 Modern Law Review p. 491, particularly at 514-517. See also:
Francois Venter, "Requirements for a New Constitutional
Text: The Imperatives of
the Constitutional Principles" (1995) 112 SALJ 32, especially, at p. 32-33.
Gretchen Carpenter, "The Republic of South Africa Constitution Act 200 of 1993 -
an overview" (1994) 9
SAPL p. 222 at
227.
The constitutional principles are a set of 34 provisions in Schedule 4 of the
Constitution. They represent principles which were
agreed upon and adopted by
the multi-party negotiating process to provide definitive guidelines for the
drafting of the final constitution. at p. 895B: The constitutional principles have a higher status than the rest of the
constitution in that they cannot be amended and again this
particular status
stems from their special function in the matrix of the two-stage
constitution-making process. and again at p. 895E-F that the Interim Constitution is: a historic bridge... not just between the past, with all that characterised
it, and the present, which is governed by the Constitution,
but also between the
present and the future, which will be governed in terms of the new
Constitution... The Constitutional Principles
form part of the future
‑directed framework, as do certain other provisions contained elsewhere in
the current Constitution.
(a) An outer circle pertaining to the nature of the state, e.g. CPs I to XVI. (b) A middle circle of more directive principles, e.g. CP XVII. (c) An inner circle of principles such as CPs XXIX and XXX, with more
specific instructions that must be followed. The grouping of the principles into different categories is an aid to their
interpretation. The outer circle of principles left a
broader range of choice
to the Constitutional Assembly in drafting the text, and thus should be
interpreted more generously. The
innermost circle left a narrower range of
choice to the Constitutional Assembly, and should be interpreted more
restrictively. However,
despite the usefulness of classifying the principles,
it would not be helpful for the Court to group them into precise categories,
because their degree of specificity and generality varies along a continuum.
Moreover, the reasons and manner in which the principles
came into being clearly
indicate that all principles, despite their level of specificity, should be
interpreted to leave some scope
for political judgment by the Constitutional
Assembly.
It seems axiomatic that, to be worthy of the label, any "interpretation" of a
constitutional term or provision must at least seriously
address the entire text
of which a particular fragment has been selected for interpretation and must at
least take seriously the
architecture of the institutions the text
defines.* * Laurence H. Tribe, "Taking Text and Structure Seriously: Reflections on
Free-Form Method in Constitutional Interpretation" (1995)
108 Harv L Rev 1221 at
1233. Reading the constitutional principles together has the effect of altering
their specificity. For example, CP XIX, if read alone,
may appear specific and
mechanical, but if read together with CP XVIII(2), CP XX, and CP XXI(2), it
becomes a less strict yardstick
against which to measure provincial powers in
the Text. Furthermore, reading the principles together may be a way of
reconciling
principles which pull in opposite directions. When there are
tensions between the principles, an attempt should be made to balance
them in a
manner which accords with the principles as a whole.
The constitution of a nation is not simply a statute which mechanically
defines the structures of government and the relations between
government and
the governed. It is a 'mirror reflecting the national soul'. The
identification of the ideals and aspirations of
a nation. The articulation of
the values wanting its people and disciplining its government. The spirit and
tenure of the constitution
must therefore preside and permeate the processes of
judicial interpretation and judicial
discretion. * 1991 (2) SA 805 NmHC at
813A-C. The purposive approach to constitutional interpretation has been adopted by
the Court. In S v Makwanyane and Another,* Chaskalson
P cited with approval the
judgment of Kentridge AJ giving judgment for the Court in S v Zuma and Others*,
where he discussed the
importance of a purposive interpretation to
constitutional adjudication. Kentridge JA noted that a purposive interpretation
could
not be undertaken without due consideration to the South African
context: regard must be paid to the legal history, traditions and usages of the
country concerned, if the purposes of its constitution are
to be fully
understood. * [1995] ZACC 3; 1995 (3) SA 391 (CC) at 403C-G * 1995 (2) (CC) SA 641 at 650-651 paras 13, 14 and
15.
depends ultimately upon the language of the Constitution construed in the
light of the country's own
history. * Executive Council of the Western Cape at
904A. Our history is different to the history of the United States of America and
the language of our constitution differs materially from
the language of the
United States
Constitution. * [1996] ZACC 3; 1996 (4) BCLR 518 (CC) at
528.
_______________________________________________________________________________ ** Executive Council of the Western Cape at
896F. to pardon or reprieve offenders, either unconditionally or subject to such
conditions as he or she may deem fit, and to remit any
fines, penalties or
forfeitures. Granting these powers to the head of the executive branch is a common
practice found in other constitutions. To interpret the principles
without
reference to the Interim Constitution, as the Democratic Party has done, is to
completely ignore an important source of constitutional
experience which could
assist the Court.
THE BILL OF RIGHTS CP II (1): "EVERYONE SHALL ENJOY ALL UNIVERSALLY ACCEPTED FUNDAMENTAL
RIGHTS, FREEDOMS AND CIVIL LIBERTIES"
(a) The requirement that the New Text provide for and protect all
"universally accepted" fundamental rights, freedoms and civil liberties,
is
imprecise and difficult to apply with precision. We submit that the following
guidelines are useful in its interpretation and
application: (i) Universally accepted fundamental rights, freedoms and civil liberties, are not limited to those recognised by all states. Our courts have held in relation to the requirement of "universal acceptance" of rules of customary international law, that widespread and general recognition suffices.* _______________________________________________________________________________ * Inter-Science Research & Development Services v Republica Popular de Mozambique 1980 (2) SA 111 (T) 125; S v Petane 1988 (3) SA 51 (C) 56-57. _______________________________________________________________________________ (ii) The requirement should be purposively interpreted with due regard to its context as part of the Interim Constitution.* It is apparent from the provisions of the Interim Constitution**, that the purpose of the constitutional principles was to set an immutable standard for the New Text. The purpose of the requirement that all universally accepted fundamental rights, freedoms and civil liberties be provided for and protected, could never have been limited to those fundamental rights, freedoms and civil liberties recognised by every single state. Such an interpretation would reduce the requirement to the lowest common denominator which requires no more than that the New Text meet the standard of the worst human rights offenders in the world. _______________________________________________________________________________ * In terms of section 232(4) of the Interim Constitution, this requirement “shall for all purposes be deemed to form part of the substance of this Constitution” despite the fact that it is embodied in a schedule to the Constitution. ** particularly sections 71(1)(a) and 74(1) _______________________________________________________________________________ (iii) We submit that it is apparent from the Interim Constitution as a whole and its preamble, postscript and section 33(1) in particular, that it seeks to uphold the values of open and democratic societies based on freedom and equality. We accordingly submit that the requirement of universal acceptance means acceptance by open and democratic societies based on freedom and equality. (iv) It follows that the fundamental rights, freedoms and civil liberties which have to be provided for and protected in the New Text, are those about which there is widespread and general consensus in open and democratic societies based on freedom and equality, that they constitute the fundamental rights, freedoms and civil liberties to which every person is entitled. (v) The constitutional principle only concerns itself with those rights which are universally accepted "fundamental" rights, freedoms and civil liberties. It in other words demands protection only of those rights of which it is universally accepted that they constitute "fundamental" rights, fundamental freedoms and fundamental civil liberties. (vi) The requirement that "everyone" shall enjoy the fundamental rights, freedoms and civil liberties which are universally accepted, implies that it is confined to individual rights, freedoms and civil liberties. Only those which are universally accepted as the rights, freedoms and civil liberties to which everyone is entitled, need to be provided for and protected. It follows that the principle does not demand provision for and protection of the collective rights which might vest in peoples or communities but not in individuals. (vii) We accordingly submit that the principle demands provision for and protection of all those individual fundamental rights, freedoms and civil liberties which enjoy widespread and general recognition as fundamental rights, freedoms and civil liberties in open and democratic societies based on freedom and equality. (b) There is no definitive list of universally accepted fundamental rights, freedoms and civil liberties. International treaties and declarations offer a useful but imperfect guide to the fundamental rights, freedom,, and civil liberties which enjoy universal acceptance. They are useful because they formulate the scope of the fundamental rights, freedoms and civil liberties concerned and the measure of their international acceptance is usually a matter of record. They are, however, for present purposes imperfect insofar as they concern the obligations of states under international law rather than the rights of their subjects under domestic national law. National constitutions are also not a reliable guide to that which is universally accepted. They are by definition the product of their own particular history and the socio-political circumstances in which they were created. They are not always exhaustive of the fundamental rights, freedoms and civil liberties accepted within the societies to whom they apply. (c) Our task is, however, considerably alleviated by the fact that the New Text generally goes much further than merely to provide for and protect the fundamental rights, freedoms and civil liberties which are universally accepted. We will in two ways seek to demonstrate that it does so. We will firstly examine each of the rights entrenched in the Bill of Rights and demonstrate that it is at least as extensive as that which is universally accepted. We will secondly compare the Bill of Rights in the New Text with the two leading international covenants, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, to check for any omissions from the Bill of Rights of fundamental rights, freedoms and civil liberties which might be regarded as universally accepted.
The universally accepted rights, freedoms and liberties have to be afforded
to "everyone". Most of the rights are expressly conferred
on "everyone". The
exceptions seem well within the bounds of what is universally accepted. They
are: (a) The rights associated with citizenship in sections 19 (political rights), 20 (citizenship), 21(3) (freedom of movement within, into and out of SA) and 21(4) (passport). (b) Section 22 also limits the right freely to choose one's trade, occupation or profession, to citizens. There does not appear to be a universally accepted fundamental right of this kind conferred on non-citizens. The limitation is accordingly permissible. (c) Certain rights are in their nature unsuited to universal application. They are sections 23(2) to (4) (worker/employer rights), 28 (children's rights) and 31 (the rights of members of cultural, religious or linguistic communities). (d) In terms of section 8(4) juristic persons enjoy the protection of the Bill of Rights "to the extent required by the nature of the rights and the juristic persons". Whatever the precise meaning of this phrase, it does not violate the constitutional principle because there is no universally accepted rule that juristic persons should be vested with all fundamental rights, freedoms and civil liberties.
(a) None of the universally accepted fundamental rights, freedoms and civil liberties is absolute. They are all subject to limitation. The New Text also provides for the limitation of all fundamental rights. Any comparison between the fundamental rights, freedoms and civil liberties which are universally accepted on the one hand, and those which are provided for and protected in the New Text on the other, should accordingly have regard to the extent to which they are subject to limitation. What has to be compared, is not the prima facie formulation of the rights before limitation but their "net" content after limitation. We will, where appropriate, have regard to the limitations to which particular rights are subject in their universally accepted form and the limitations to which they are subject in terms of the New Text. It would, however, be useful in general terms, to consider whether the general limitation provision in section 36 of the New Text conforms to universally accepted standards. (b) Section 36(1) only permits limitation which "is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom" taking into account all relevant factors including those specifically enumerated. We submit that this requirement by definition ensures that the limitation goes no further than that which is universally accepted. We have already submitted that the requirement of universal acceptance, postulates universal acceptance in all open and democratic societies based on freedom and equality. The general limitations clause, demands of every limitation, that it should be reasonable and justifiable in such a society. Both standards accordingly use the same benchmark, namely the values of open and democratic societies based on human dignity, equality and freedom. The proper application of the general limitation provision would therefore permit limitation only within the bounds of that which is universally accepted. (c) Few international and national human rights instruments incorporate general limitation provisions: - The Universal Declaration of Human Rights contains a general limitation provision which permits limitations "as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society" - article 29(2) - The International Covenant on Economic, Social and Cultural Rights also contains a general limitation provision which permits "only such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society" - article 4. - The Canadian Charter of Rights and Freedoms permit only "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" - ‑section 1. (d) The standard for limitation prescribed by section 36(1) of the New Text, is at least as high as that of the foregoing general limitation provisions. It can accordingly in general terms clearly be said to be within the bounds of what is universally accepted. (e) Most other international and national human rights instruments prescribe specific and varying standards for the limitation of particular rights. We will, where appropriate, refer to these standards in our discussion of the rights concerned.
(a) This section permits and controls the derogation of fundamental rights in the event of a state of emergency. The control of the circumstances under which a state of emergency may be declared and the protection of fundamental rights in any state of emergency, constitute universally accepted norms of international human rights law. (b) Many international human rights instruments permit the derogation of
fundamental rights during a state of emergency but seek strictly
to control the
circumstances under which a state of emergency may be declared and the extent to
which derogation is then permitted.
They include, - the International Covenant on Civil and Political Rights: article 4; - the European Convention on Human Rights: article 15; - the European Social Charter: article 30; and - the American Convention on Human Rights: article 27. (c) There are a number of standards drafted by private expert bodies which
enjoy significant international standing with regard to
the rules governing
public emergencies. They are, - the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights; - the Paris Minimum Standards of Human Rights Norms in a State of Emergency; - the Turku Declaration of Minimum Humanitarian Standards. (d) Not all national constitutions expressly provide for and control the derogation of fundamental rights in emergencies. The Canadian Charter for instance makes no such provision beyond its general limitation clause. Examples of constitutions which do expressly provide for and control emergency derogation are the constitutions of; - India: articles 352 to 360; - Germany: article 115 and - Namibia: articles 24 and 26. (e) The inclusion of an express emergency clause serves to important purposes. The first is to preserve the distinction between the normal legal regime on the one hand, and the legal regime governing exceptional and temporary circumstances constituting a genuine emergency on the other. This distinction is important to prevent emergency measures becoming an institutionalised feature of the normal public order. The second purpose is strictly to control the declaration of an emergency and the exercise of emergency powers by the executive. Fundamental human rights are best protected during a state of emergency if expressly circumscribed rather than to be subject to broad and ill-defined emergency executive powers. (f) Section 37(.1) permits a state of emergency to be declared only if "the life of the nation is threatened" by public emergency and "the declaration is necessary to restore peace and order". The declaration and extension of a state of emergency are subject to control by the legislature in terms of section 37(2) and the judiciary in terms of section 37(3). Sections 37(2)(a) and 4(8) limit and control the derogation of fundamental rights in an emergency. In terms of section 37(3) these limits and controls are also judicially enforceable. These restrictions and controls are well within the parameters of what is universally accepted.
(a) The right to equality is also entrenched by CP 1, III and V. (b) The right is found in the following international conventions and declarations: - The Universal Declaration of Human Rights: article 2 - The United Nations Charter: preamble, article 55(c) - The International Covenant on Civil and Political Rights: articles 2(1), 4, 26 - The International Covenant on Economic, Social and Cultural Rights: article 2(2) - The European Convention on Human Rights: article 14 - The American Convention on Human Rights: articles 2(1), 24 - The African Charter on Human and Peoples' Rights: articles 2, 3 - The Convention against Discrimination in Education - The International Covenant on the Elimination of all forms of Racial Discrimination - The Convention on the Elimination of all forms of discrimination against Women - The Convention on the Rights of the Child: article 2(1) (c) This right is also found in most national constitutions for
example: - The Constitution of the USA: article XIV, section I - The German Constitution: article 3 - The Indian Constitution: articles 14, 15, 16 - The Canadian Charter: section 15. (d) The New Text entrenches the right to equality in section 9 and reinforces this right in sections l(a) and (b), 3(2), 7(1), 36(1), 37(5)(c), 39(1)(a) and 187. (e) The protection afforded to this right in section 9 of the New Text,
manifestly goes beyond that which is universally accepted,
most notably in the
following respects: (i) The right to equality is protected in its own right in sections 9(1) and (2) and is not confined to the prohibition of discrimination in sections 9(3) and (4). (ii) The section is not confined to formal equality but also aspires to substantive equality. Section 9(2) says that "equality includes the full and equal enjoyment of all rights and freedoms" and permits legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, to promote the achievement of equality. (iii) The prohibition of discrimination in sections 9(3) and (4) extends to more grounds than those universally accepted (such as sexual orientation), is not limited to the enumerated grounds and binds not only the state but also every other person.
(a) The right to dignity is a core human rights value which constitutes the justification for a variety of universally accepted fundamental rights (such as the rights to equality, liberty of the person, privacy, personality rights, the right to a name, the right to physical, mental and moral integrity, and the prohibition of cruel and unusual punishment and of slavery, servitude and forced labour) but does not enjoy universal protection in its own right. (b) The right to dignity does enjoy recognition in certain international
instruments such as, - the Universal Declaration of Human Rights: preamble and section 1 - the African Charter on Human and Peoples' Rights: section 5 - the American Convention on Human Rights: section 11 (1). (c) The right to dignity is expressly recognised in certain national constitutions (such as the German Constitution: article 1) but not in others (such as the constitutions of the USA, India and Canada). (d) The New Text entrenches the right to dignity in section 10 and reinforces this right in sections l(a), 7(1), 36(1), 37(5)(c) and 39(1)(a). (e) The protection of the right to dignity in the New Text extends further than that which is universally accepted at least insofar as, - it is protected in its own right; - it demands of the state not merely to respect but also to protect the dignity of every person; and - it elevates the dignity of every person to a core value of the
constitution.
(a) The right to life is a universally accepted fundamental right but is frequently limited specifically to permit capital punishment.* In other words, insofar as the New Text protects the right to life without qualification, it provides greater protection than the right which is universally accepted. _______________________________________________________________________________ * S v. Makwanyane 1995(6) BCLR 665 (CC) at 701, paras 80-86. _______________________________________________________________________________ (b) The bearer of the right under the New Text, is "everyone". It is not
expressly extended to the protection of pre-natal life.
It can however not be
said that the protection of pre-natal life is a universally accepted fundamental
right, freedom or civil liberty.
The varied responses of open and democratic
societies is based on human dignity, equality and freedom, to the issue of
abortion,
make it clear that there is no universally accepted standard which
demands the constitutional protection of pre-natal life.
(a) The prohibition against torture is a peremptory norm of customary international law. No limitation or derogation of this right is permitted. Although the prohibition in section 12(1)(d) of the New Text is nominally subject to limitation in terms of the general limitation provision in section 36(1), no limitation is in fact conceivable because torture can never be "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom". (b) The rights to freedom and security of the person are universally accepted
human rights protected in various forms under international
instruments such
as, - the Universal Declaration of Human Rights: articles 3 and 9; - the International Covenant on Civil Political Rights: article 9; - the European Convention on Human Rights: article 5; - the American Convention on Human Rights: article 7; - the African Charter on Human and Peoples' Rights: article 6; (c) Various dimensions of these rights are also protected in national constitutions, for example, - the USA Constitution: article V; - the Canadian Charter of Rights and Freedoms: sections 7, 9 and 12; - the German Constitution: article 2(2); - the Indian Constitution: articles 21 and 22. (d) The protection the New Text affords to freedom and security of the person, is not limited to section 12. Specific aspects of freedom and security of the person are also protected under sections 21, 22, 35 and 37.* All those provisions have accordingly to be taken into account when the New Text is compared with that which is universally accepted. We will deal later with the other provisions which also protect aspects of freedom and security of the person. We submit that the protection afforded by section 12 is at least as extensive as that which is universally accepted. _______________________________________________________________________________ * Ferreira v Levin NO 1996(1) BCLR I (CC) at 100 paras 169-185. _______________________________________________________________________________
(a) The prohibition of slavery is one of the oldest and most widely accepted fundamental rights. It has hardened into a norm of customary international law from which no derogation is permitted. (b) The prohibition of slavery, servitude and forced labour is also widely prohibited in international human rights instruments such as, - the Universal Declaration of Human Rights: article 4 and - the International Covenant on Civil and Political Rights: article
8. (c) The prohibition is also incorporated in most national constitutions such
as, - the Constitution of the USA: article XIII and - the German Constitution: article 12. (d) The right is entrenched without qualification in section 13 of the New Text. It is also reinforced by the entrenchment of every citizen's right freely to choose their trade, occupation or profession in terms of section 22 of the New Text. (e) Section 13 which prohibits slavery, servitude and forced labour in
unqualified terms, accordingly goes at least as far as that
which is universally
accepted.
(a) The right to privacy is recognised in a number of international
instruments such as, - the Universal Declaration of Human Rights: article 12; - the International Covenant on Civil and Political Rights: article 17; - the European Convention on Human Rights: article 8(1); and - the American Convention on Human Rights: articles 11, 14. (b) Very few national constitutions protect the right of privacy as such but some of them, such as the constitutions of the USA and Canada, protect certain aspects of the right to privacy. (c) Section 14 of the New Text recognises and protects a general right to
privacy which includes, but is not limited to, the specific
protections
enumerated. It clearly goes at least as far as that which is universally
accepted.
(a) The right to freedom of religion, belief and opinion is widely recognised in international instruments such as, - the Universal Declaration of Human Rights: article 18; - the International Covenant on Civil and Political Rights: article 18; - the European Convention on Human Rights: article 9; - the American Convention on Human Rights: article 12; and - the African Charter on Human and Peoples' Rights: article 8. (b) Nearly all national constitutions protect the freedom of religion, belief
and opinion but do so in varying terms, for example, - the Constitution of the USA: first amendment; - the Canadian Charter of Rights and Freedoms: section 2; - the Constitution of India: sections 25(1) and 26; and - the German Constitution: section 4. (c) The right to freedom of conscience, religion, thought, belief and opinion is recognised and protected in unqualified terms in section 15(1) of the New Text. (d) Section 15(2) preserves the freedom to conduct religious observances at state and state-aided institutions provided that certain conditions are met, one of which is that attendance must be free and voluntary. The universally accepted right to freedom of religion, belief and opinion does not demand that such religious observances at state and state-aided institutions be prohibited. (e) Section 15(3) permits legislation recognising, - marriages concluded under any tradition or a system of religious, personal or family law; and - systems of personal and family law under any tradition or adhered to by
persons professing a particular religion, provided that such recognition is consistent with the right to freedom of
conscience, religion, thought, belief and opinion and with
the provisions of the
constitution as a whole. Insofar as this section limits the right to religion,
belief and opinion, it does
so within the parameters permissible by what is
universally accepted.
(a) The right to freedom of expression is widely recognised in international
human rights instruments such as, - the Universal Declaration of Human Rights: article 19; - the International Covenant on Civil and Political Rights: article 19; - the European Convention on Human Rights: article 10; - the American Convention on Human Rights: article 13 and - the African Charter on Human and Peoples' Rights: article 9(2). (b) It is also widely recognised in national constitutions such as, - the Constitution of the USA: first amendment; - the Canadian Charter: article 2(b); - the German Constitution: article 5; - the Indian Constitution: article 19. (c) Section 16(1) of the New Text entrenches the right to freedom of expression in general and unqualified terms and then extends it without limiting it, to five enumerated freedoms. (d) Section 16(2) of the New Text excludes certain forms of expression from constitutional protection. The exclusion is comparable to that in international instruments such as, - the International Covenant on Civil and Political Rights: article 20; - the European Declaration of Human Rights: article 10; - the International Convention on the Elimination of All Forms of Racial Discrimination: article 4; and - the American Convention on Human Rights: article 13(5). (e) We accordingly submit that the protection of the right to freedom of
expression subject to the limitations which permit the prohibition
or
restriction of "hate speech" , is well within the bounds of what is
internationally accepted.
(a) The right to freedom of assembly is guaranteed in various international
instruments such as, - the Universal Declaration of Human Rights: article 20; - the International Covenant on Civil and Political Rights: article 21; - the European Convention on Human Rights: article 11; - the American Convention on Human Rights: article 15; and - the African Charter and Human and Peoples' Rights: article 11. (b) The right to freedom of assembly is also widely recognised in national
bills of rights such as, - the Constitution of the USA: first amendment; - the Indian Constitution: section 19(1); - and the German Constitution: section 8(1). (c) The unqualified protection in section 17, of the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions, goes as far as and further than that which is universally accepted.
(a) The right to freedom of association is guaranteed in many international
instruments such as, - the Universal Declaration of Human Rights: article 20; - the International Covenant on Civil and Political Rights: article 22; - the European Convention on Human Rights: article 1 1; - the American Convention on Human Rights: article 16; and - the African Charger on Human and Peoples' Rights: article 10. (b) Most national instruments protect aspects of the right of freedom of
association but not always the right itself without qualification: - The Indian Constitution, section 19(1)(d) protects the right of all citizens "to form associations and trade unions". - The Canadian Charter, section 2(d) protects the freedom of association in unqualified terms. - The German Constitution, section 9 guarantees a general right to form associations, and a specific right to form trade unions and employers' associations. - The USA Constitution does not expressly protect the right to freedom of association but it does protect it as an aspect of the "liberty" protected by the due process clause of the Fourteenth Amendment and as a right derived by implication from the guarantees of speech, press, petition and assembly in the First Amendment.* _______________________________________________________________________________ * Tribe: American Constitutional Law 1010; NCAAP v Alabama [1958] USSC 150; (1958) 357 US 449 _______________________________________________________________________________ (c) Section 18 of the New Text expressly guarantees the right of freedom of association in unqualified terms. It is also reinforced and extended by sections 19(1) and 23(2), (3) and (4). It clearly goes as far as and further than that which is universally accepted. (d) The right to freedom of association is limited by section 23(5). We deal with the limitation in our discussion of section 23.
(a) Certain political rights are recognised and protected under various
international instruments such as, - the Universal Declaration of Human Rights: article 21; - the International Covenant on Civil and Political Rights: article 25; - the First Protocol to the European Convention on Human Rights: article 3; - the American Convention on Human Rights: article 23; and - the African Charter on Human and People's Rights: article 13. (b) Most national constitutions also recognise various and diverse aspects of citizens' political rights. The enumeration of those provisions would serve no greater purpose than to illustrate their diversity. (c) Section 19 entrenches a variety of fundamental political rights. We
submit that it goes well beyond or at least as far as that
which is universally
accepted.
(a) This section protects every citizen against deprivation of his or her citizenship. It does so in unqualified terms. It is not contradicted by section 3(3) which provides that national legislation must provide for the acquisition, loss and restoration of citizenship. Insofar as such legislation provides for the deprivation of citizenship, it would have to conform to the general requirements for limitation prescribed by section 36(1). (b) Accordingly, insofar as section 20 protects every citizen in unqualified
terms against deprivation of his or her citizenship,
it goes at least as far as
that which is universally accepted.
(a) The right to freedom of movement is guaranteed in various international
instruments such as, - the Universal Declaration of Human Rights: articles 9, 13; - the International Covenant on Civil and Political Rights: article 12; - the European Convention on Human Rights Protocol 4: article 2; - the American Convention on Human Rights: article 22 and - the African Charter on Human and Peoples' Rights: article 12. (b) Most national bills of rights protect various aspects of freedom of movement but usually do so in qualified terms. The Canadian Charter is a good example. Section 6(2) protects the right of every citizen and every person who has the status of a permanent resident of Canada, "to move to and take up residence in any province" and "to pursue the gaining of a livelihood in any province". Those rights are, however, subject to limitation in terms of section 6(3) and exclusion in terms of section 6(4). (c) It is submitted that the protection of the freedom of movement and residence in section 21 of the New Text goes at least as far as and further than, that which is universally accepted.
(a) This right reinforces the prohibition of slavery, servitude and forced labour in terms of section 13. (b) Whilst the latter prohibition certainly constitutes a universally accepted right, the right of every citizen freely to choose his or her trade, occupation or profession, cannot be said to be a universally accepted right. (c) The section seems to be modelled on article 12 of the German constitution which provides that all Germans have the right freely to choose their occupation or profession, their place of work, study or training. (d) In other words, although there is some precedent for the protection of this right, it is not one demanded by that which is universally accepted, insofar as it goes beyond the prohibition of slavery, servitude and forced labour.
(a) Those fundamental rights, freedoms and civil liberties in the field of labour relations which can be said to be universally accepted, are amply protected in section 23 of the New Text. Those who object to the inadequacy of this section, do not contend that it fails to conform to the requirement that all universally accepted fundamental rights, freedoms and civil liberties be provided for and protected. (b) Article 22 of the International Covenant on Civil and Political Rights
provides:
(c) Article 8 of the International Covenant on Economic, Social and Cultural
Rights provides: " 1. The State's Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organisations; (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
(d) Article 11(1) of the European Convention on Human Rights
provides: "Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and
to join trade unions
for the protection of their interests. " (e) Article 16(1) of the American Convention on Human Rights
provides: "Everyone has the right to associate freely for ideological, religious, political, economic, labour, social, cultural, sports or other purposes." (f) Convention 87 of the International Labour Organisation concerns the
freedom of association and protection of the right to organise.
It provides
firstly, that workers and employers without distinction shall have the right to
establish and join organisations of
their own choosing without previous
authorisation; secondly, that workers' and employers' organisations shall have
the right to draw
up their constitutions and rules, to elect their
representatives, to organise their administration and activities, and to
formulate
their programmes; thirdly, it prohibits the suspension and dissolution
of workers' and employers' organisations by administrative
authority; and
fourthly, it provides that workers' and employers' organisations shall have the
right to establish and join federations
and confederations, which will have the
same rights as their constituent organisations, and to affiliate with
international organisations
of workers and employers. (g) Convention 98 of the International Labour Organisation concerns the application of the principles of the right to organise and bargain collectively. The convention requires adequate protection against acts of anti-union discrimination; interference in or domination of workers' or employers' organisations; machinery for ensuring respect for the right to organise; and measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations or workers' organisations to regulate terms and conditions of employment by collective agreement. (h) Many national constitutions entrench the right of workers and employers to join and form trade unions and employers' organisations. Some guarantee the right to strike. Very few recognise the right to lock-out. (i) The United States Constitution does not contain any specific constitutional protection of collective labour rights. Such protection as has been afforded to the right to establish and join employers' and workers' organisations and to organise and bargain collectively, has been founded on the constitutional freedom of assembly. Its protection has however generally been narrowly interpreted.* _______________________________________________________________________________ * Abood v. Detroit Board of Education [1977] USSC 140; 431 US 209 (1977); Citizens against Rent Control v. Berkley [1981] USSC 228; 454 US 290 (1981); _______________________________________________________________________________ (j) The Canadian Charter also does not contain any express protection of labour rights and such protection as is afforded to the right to establish and join employers' and workers' organisations and to organise collectively, is founded upon the constitutional right of freedom of association.* _______________________________________________________________________________ * Re: Public Service Employee Relations Act (1978) 38 DLR 4th 161 SC; PSAC v Government of Canada (1987) 38 DLR 4th 249 SC; Government of Saskatchewan v RWDSU (1987) 38 DLR 4th 277 SC; Professional Institute of the Public Service of Canada v. Northwest Territories (1990) 49 CRR 193 SC. _______________________________________________________________________________ (k) The Supreme Court of India has held that the constitutional right to form associations or unions does not incorporate a right to engage in collective bargaining or strike action.* _______________________________________________________________________________ * All India Bank Employees Association v. National Industrial Tribunal 1962 AIR 171 SC _______________________________________________________________________________ (l) It may be difficult to define the precise parameters of those
fundamental rights, freedoms and civil liberties in the field
of labour
relations which can be said to be universally accepted. It is, however not
necessary for present purposes because, whatever
the precise parameters might
be, they are amply protected under section 23 of the New Text and certainly do
not extend beyond the
protection afforded by that section.
(a) There is clearly a strong trend in international law towards recognition of a right to an environment conducive to human health and well-being. This reflects a growing acceptance internationally that there is an inextricable bond between the environment and all other universally recognised human rights, particularly the rights to life and health. Some of the more recent international instruments and a number of national constitutions afford limited protection of the environment. It is, however, still at least doubtful whether it can be said that there is a universally accepted right to environmental protection. Such core right as might conceivably be said to have achieved universal acceptance, is in any event amply protected in section 24 of the New Text. (b) Article 24 of the African Charter on Human and Peoples' Rights which is
the most recent international human rights instrument,
provides: "All peoples shall have the right to a generally satisfactory environment
favourable to their development." (c) The American Convention on Human Rights in the area of economic, social
and cultural rights has not yet come into force. Article
11 of the Convention
provides-. "Right to a healthy environment.
(d) Articles 48A and 51A(g) of the Indian Constitution, Article 45 of the Spanish Constitution, Article 66 of the Portuguese Constitution and Article 225 of the Brazilian Constitution, are examples of the limited constitutional protection of the environment afforded by some national constitutions. (e) There is no evidence of a universally accepted right to protection of the
environment any wider than that provided for under section
24 of the New Text.
It accordingly clearly meets the requirement of protection of that which might
conceivably be said to be universally
accepted.
(a) Neither the International Covenant on Civil and Political Rights nor the International Covenant on Economic, Social and Cultural Rights, protects a right to property. There are however a number of international instruments which afford limited protection of that right. (b) Article 17 of the Universal Declaration of Human Rights provides: “1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.” (c) Article 1(1) of the Protocol to the Convention for the Protection of
Human Rights and Fundamental Freedoms provides: "Every natural or legal person is entitled to the peaceful enjoyment of his
possessions: No one shall be deprived of his possessions
except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law." (d) Article 5(d)(v) of the International Convention on the Elimination of all Forms of Racial Discrimination requires states to prohibit racial discrimination and to guarantee the right of everyone, without discrimination, to equality before the law, notably in the enjoyment of "the right to own property alone as well as in association with others". (e) The European Convention on Human Rights does not protect a right to
property. Such protection was however created under article
1 of the First
Protocol to the Convention of 1952: "Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions
except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law." (f) Article 21 of the American Convention on Human Rights provides: “1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interests of society.
(g) Article 14(1) of the African Charter of Human and People's Rights
provides: "The right to property shall be guaranteed. It may only be encroached upon
in the interests of public need or in the -general interests
of the community
and in accordance with the provision of appropriate laws." (h) The right to property is protected in many national constitutions but significantly omitted from some. It is for instance protected under the Fifth Amendment of the USA Constitution. The Canadian Charter however does not include protection of a right to property. (i) We accordingly submit that there is probably no universally accepted
right to property. It is, however not necessary to determine
whether there is
because, insofar as there might be such a right which enjoys universal
acceptance, it is in any event one amply
protected by section 25 of the New
Text. There clearly cannot be said to be a universally accepted right wider
than that which is
protected under section 25 of the New
Text. (a) Article 25 of the Universal Declaration of Human Rights and Article 11 of the International Covenant on Economic, Social and Cultural Rights, both recognise the right of everyone to an adequate standard of living including adequate food and other necessities of life. The right to housing enjoys some recognition in terms of Article 5(e)(iii) of the International Convention o Elimination of All Forms of Racial Discrimination; a 14(2)(h) of the International Convention on the Elimination of Forms of Discrimination against Women; article 27(3) of International Convention on the Rights of the Child; article of the European Convention on Human Rights and Fundamental Freedoms and article 1 of the First Protocol to the Convention. (b) The right to housing is also recognised in some national constitutions such as article 23(3) of the Belgium Constitution; article 4 of the Mexican Constitution; article 22(2) of Netherlands Constitution and article 17(2)(d) of the Nigerian Constitution. (c) The majority of national constitutions however do not recognise a right to housing. Those who do not recognise or protect this right include some of the leading democratic societies. It can accordingly probably not be said that the right to housing is universally accepted as a fundamental right, freedom or civil liberty. (d) The protection of the right under section 26 of the New Text. in any
event, goes at least as far as that which might be universally
accepted.
(a) These social rights enjoy widespread recognition in international law for instance in terms of articles 22 and 25(1) of the Universal Declaration of Human Rights; articles 9, 11 and 12 of the International Covenant on Economic, Social and Cultural Rights; articles 11 to 14 of the European Social Charter and article 16 of the African Charter on Human and Peoples' Rights. (b) These social rights also enjoy some recognition under national constitutions but this is the exception rather than the rule. They clearly do not enjoy universal acceptance as fundamental rights, freedoms or civil liberties. (c) Section 24 clearly goes further than that which is universally
accepted.
(a) The rights of children enjoy wide recognition in international law, for instance in terms of article 25(2) of the Universal Declaration of Human Rights; article 26 of the International Covenant on Civil and Political Rights and article 10(3) of the International Covenant on Economic, Social and Cultural Rights. The mounting international recognition of the rights of children culminated in the Convention on the Rights of the Child which was adopted unanimously by the UN General Assembly in 1989 and which ended into force in 1990. South Africa recently became a signatory to this convention. (c) Children's rights enjoy special recognition in terms of some national constitutions. For instance those of Germany and Namibia, but this is again the exception rather than the rule. These rights cannot be said to be universally accepted fundamental rights, freedoms and civil liberties. (d) Section 28 accordingly clearly goes further than that which is universally accepted.
(a) The right to education and various aspects of this right enjoy widespread international recognition for instance in terms of, - article 26 of the Universal Declaration of Human Rights; - articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights. - article 2 of the First Protocol to the European Convention on Human Rights; - article 17 of the African Charter on Human and Peoples' Rights; and - articles 28 and 29 on the Convention of the Rights of the Child. (b) Various aspects of the right to education are also protected under national constitutions such as, - the Indian Constitution: articles 28 to 30 and directive principles 41, 45 and 46; - the Canadian Charter: section 23; - the German Constitution: articles 7 and 12(1); - the Portuguese Constitution: articles 43, 74 and 75; - the Danish Constitution: articles 76; - the Namibian Constitution: article 20; and - the Italian Constitution: article 33. (c) The right is, however, not recognised or protected in the national
constitutions of a significant number of leading democratic
societies. It can
accordingly probably not he said to be a universally accepted fundamental right,
freedom or civil liberty. Insofar
as its core elements might however conceivably
be said to enjoy universal acceptance, they are all protected under section 29
of
the New Text.
(a) This section should be read together with the other provisions of the New Text which protect and promote cultural diversity, of which the most important are sections 6, 31, 185 and 186. (b) The right freely to participate in cultural life including the right to use the language of one's choice, is widely recognised in international law for instance in terms of, - the Universal Declaration of Human Rights: article 27; - the International Covenant on Civil and Political Rights: article 27; - the International Covenant on Economic, Social and Cultural Life: article 15; - the International Convention on the Elimination of All Forms of Racial Discrimination: article 5(3)(vi); - the Convention on the Elimination of All Forms of Discrimination against Women: article 13(c); - the African Charter on Human and Peoples' Rights: article 22; - the Convention on the Rights of the Child: article 31. (c) Language and cultural rights also enjoy protection in a number of
national constitutions, for instance those of, - India: article 29; - Germany: article 5(3); - Canada: sections 16 to 23; and - Namibia: article 19. (d) These cultural rights however probably do not yet enjoy universal
acceptance as fundamental rights, freedoms or civil liberties
insofar as they go
beyond the protection of afforded by the first generation of rights to equality,
dignity, freedom of association
and freedom of expression. They are, however,
amply protected in the New Text insofar as they might enjoy universal
acceptance.
Our submissions in relation to Section 30 of the New Text are also applicable
to this section.
The General Assembly of the United Nations declared in its Resolution 59(1)
of December 1946, that "freedom of information is a fundamental
right and it is
the touchstone of all freedoms to which the United Stations is consecrated".
Despite this sweeping assertion, the
right does, however, manifestly not enjoy
universal acceptance as a fundamental right, freedom or civil liberty in
international
law or domestic constitutional law of open and democratic
societies.
The right to administrative justice does not enjoy recognition as a free
standing fundamental right, freedom or civil liberty in international
law or the
domestic constitutional law of open and democratic societies.
(a) The right in this section is reinforced by the provisions of section 38 which entrenches the right to access to court and to appropriate relief in the event of an actual or threatened infringement of the Bill of Rights. (b) The right of access to an impartial and independent court enjoys
significant recognition in international law for instance
in terms of, - the Universal Declaration of Human Rights: article 10; - the International Covenant on Civil and Political Rights: article 14(1); - the European Convention on Human Rights: article 6; - the African Charter on Human and Peoples' Rights: article 7 and - the American Convention on Human Rights: article 8(1). (c) Aspects of the right also enjoy protection under the domestic constitutions of some societies such as article 19 of the German Constitution and article 12(1) of the Namibian Constitution. (d) The right afforded by section 34 is unqualified and all encompassing. It
clearly goes at least as far as and probably considerably
further than that
which might be universally accepted.
(a) This section entrenches a series of rights which undoubtedly enjoy universal acceptance as fundamental rights, freedoms and civil liberties. (b) These rights enjoy recognition in international law, for instance, in terms of, - the Universal Declaration of Human Rights: article 11 (1); - the International Covenant on Civil and Political Rights: articles 9 and 14; - the European Convention on Human Rights: article 6; - the American Convention on Human Rights: article 8(2); - the African Charter on Human and Peoples' Rights: article 7(1). (c) These rights are also widely protected under most national constitutions. (d) The only practical way to get an idea of the adequacy of the protection
afforded by section 35 of the New Text, is probably to
compare it with articles
9 and 14 of the International Covenant on Civil and Political Rights which enjoy
significant standing as
a statement of the rules under international law
governing the requirements of a fair trial in criminal proceedings. We submit
that
the comparison demonstrates the adequacy of the protection afforded by
section 35 of the New Text.
(a) A comparison with the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights gives some idea of the extent to which all the universally accepted fundamental rights are recognised and protected in the Bill of Rights in the New Text: RIGHT ICCPR ICESCR NEW TEXT Remedy 2(2),(3) - 38 Equality 2(1),3,14(1), 24(1), 26 - 9 Emergency 4 - 37 Life 6 - 11 Torture 7 - 12 Slavery 8 - 13 Liberty 9,10,11,14,15 - 12, 35 Movement 12 - 21 Personhood 16 - 9, 10 Privacy 17 - 9, 10 Conscience 18 - 15 Expression 19,20 - 16 Assembly 21 - 17 Association 22 - 18, 23 Family 23 10 - Children 10(2)(b),24 - 28 Public Affairs 25 - 3, 9, 19, 20 Minorities 26 - 30, 31 Work - 6 - Conditions of Work - 7 23(1) Trade Unions - 8 23 Social Security - 9 27(1)(c) Living Standard - 11 27 Health - 12 24, 27, 28(1) Education - 13, 14 29 Culture - 15(1)(a) 31 Scientific Progress - 15(1)(b) - Intellectual Property - 15(c)(c) 25 (b) As appears from the schedule, the only rights recognised in the two conventions but not protected in the New Text, are, the protection of the family*, the right to work**, and the right to enjoy the benefits of scientific progress.*** _______________________________________________________________________________ * Article 23 of the International Covenant on Civil and Political Rights and article 10 of the International Covenant on Economic, Social and Cultural Rights. ** Article 6 of the International Covenant on Economic, Social and Cultural Rights. *** Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights. _______________________________________________________________________________ (c) We submit, however, that those aspects of these rights which are not
protected in the New Text, in any event do not constitute
universally accepted
fundamental rights, freedoms and civil liberties. This is vividly illustrated
by their absence from very many
national constitutions of leading open and
democratic societies.
CP II (2): THESE FUNDAMENTAL RIGHTS, FREEDOMS AND CIVIL LIBERTIES
“SHALL BE PROVIDED FOR AND PROTECTED BY ENTRENCHED AND JUSTICIABLE
PROVISIONS IN THE CONSTITUTION”
CP 11 (3): THE AFOREGOING PROVISIONS "SHALL BE DRAFTED AFTER HAVING GIVEN DUE CONSIDERATION TO INTER ALIA THE FUNDAMENTAL RIGHTS CONTAINED IN CHAPTER 3" OF THE INTERIM CONSTITUTION
CP III (1): “THE CONSTITUTION SHALL PROHIBIT RACIAL, GENDER AND ALL OTHER FORMS OF DISCRIMINATION ”
(a) The constitutional principle does not confine its demand to the prohibition of discrimination practised by the state. It accordingly also demands the prohibition of private discrimination. (b) The first sentence of section (4) purports to prohibit private discrimination but should be read together with the second sentence. When the two are read together, the section does not prohibit private discrimination but merely provides that national legislation must be enacted to prevent or prohibit private discrimination.
CP III (2): THE CONSTITUTION "SHALL PROMOTE RACIAL AND GENDER EQUALITY"
- establishing non-racialism and non-sexism as founding values in section l(b); - guaranteeing equality before the law and the right to equal protection and benefit of the law, including the full and equal enjoyment of all rights and freedoms, in terms of sections 9(1) and (2); - permitting the state to take legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination, to promote the achievement of equality in terms of section 9(2); - prohibiting race and gender discrimination by the state in section 9(3); - prohibiting race and gender discrimination by any other person in section 9(4); - making an open and democratic society based on human dignity, “equality” and freedom, the benchmark for limitation in terms of section 36(1) and for interpreting the Bill of Rights in terms of section 39(1); - establishing a Human Rights Commission in terms of section 184; and - establishing a Commission for Gender Equality in terms of section 187. CP III (3): THE CONSTITUTION “SHALL PROMOTE... NATIONAL UNITY”
CP V: “THE LEGAL SYSTEM SHALL ENSURE THE EQUALITY OF ALL BEFORE THE LAW... EQUALITY BEFORE THE LAW INCLUDES LAWS, PROGRAMMES OR ACTIVITIES THAT HAVE AS THEIR OBJECT THE AMELIORATION OF THE CONDITIONS OF THE DISADVANTAGED, INCLUDING THOSE DISADVANTAGED ON THE GROUNDS OF RACE, COLOUR OR GENDER”
CP IX: PROVISION SHALL BE MADE FOR FREEDOM OF INFORMATION SO THAT THERE
CAN BE OPEN AND ACCOUNTABLE ADMINISTRATION AT ALL LEVELS OF
GOVERNMENT
(a) The restrictive interpretation is based on section 32(2) read with section 23 of the Transitional Arrangements in Schedule 6. The effect of those provisions is: (i) The state is obliged to enact national legislation to give effect to the right of access to information, within three years. The legislation may moreover "provide for reasonable measures to alleviate the administrative and financial burden on the state". (ii) Until the state enacts the proposed legislation, a limited transitional right of access to information will apply. (iii) If it fails to do so, the requirement that the state enact national legislation to give effect to the right, will lapse. (b) The restrictive interpretation would argue that the intention is that the proposed national legislation will be exhaustive of the right.
(a) The language of section 32(1) is clear. It creates a free-standing and direct right of access to information. It is not dependent on the legislation to be enacted in terms of section 32(2). The latter section enjoins the state to enact legislation which does two things. It firstly gives effect to the right of access to information, by putting flesh on the bare bones of the right. It would do so by giving practical effect to the right in the very many situations in which it is applicable, creating machinery for the enforcement of the right and imposing justifiable limitations upon it. It may secondly also provide "for reasonable measures to alleviate the administrative and financial burden on the state". (b) The new and very wide right of access to information created in section 32(1) does not come into effect until the state has had an opportunity enact legislation in terms of section 32(2) repeating and limiting the right. In the meantime, the more limited transitional right of access to information applies. (c) There is in other words no reason to interpret the section to mean that the national legislation enacted in terms of section 32(2) is to be exhaustive of the right created in terms of section 32(1).
CP XXVIII: "NOTWITHSTANDING THE PROVISIONS OF PRINCIPLE XII, THE RIGHT OF EMPLOYERS AND EMPLOYEES TO JOIN AND FORM EMPLOYER ORGANISATIONS AND TRADE UNIONS AND TO ENGAGE IN COLLECTIVE BARGAINING SHALL BE RECOGNISED AND PROTECTED. PROVISION SHALL BE MADE THAT EVERY PERSON SHALL HAVE THE RIGHT TO FAIR LABOUR PRACTICES."
- fails to entrench employers' right to lock out; and - confers the right to bargain collectively, on employers' organisations and not on individual employers. Employers' right to lock out
(a) it fails to ensure equality between employers and employees ("the equality argument"); (b) it denudes employers' right to collective bargaining of all meaningful content ("the collective bargaining argument") and (c) it fails to ensure that every person has the right to fair labour practice ("the fairness argument"). We will deal with each of these three arguments in turn.
(a) The NP says that a balance is struck in the Interim Constitution by the protection of workers' right to strike in section 27(4) and employers' right to lock out in section 27(5) and that this balance should have been maintained in the New Text.* The latter contention is apparently founded on the demand of CP II that the New Text be drafted "after having given due consideration to inter alia the fundamental rights contained in Chapter 3" of the Interim Constitution. But it obviously does not mean that all of the provisions of Chapter 3 of the Interim Constitution have to be re‑-enacted. _______________________________________________________________________________ * National Party Objection p.2, para.5. _______________________________________________________________________________ (b) The DP founds their equality argument on the constitutional principles which demand equality before the law.* But the principle of equality before the law, does not demand that all people be treated the same, whatever their circumstances. On the contrary, it demands that people whose circumstances differ, be treated differently. There is a vast difference between circumstances of employers and labour in their collective bargaining confrontation. There is simply no basis for the suggestion that the principle of equality before the law demands that every collective bargaining tool given to the one has to be matched by a corresponding tool given the honour. _______________________________________________________________________________ * DP Objections, p.8, para 5 _______________________________________________________________________________ (c) BSA on the other hand, founds its equality argument on CP XXVIII itself. It argues that the constitutional principle requires that "parity be maintained between the collective bargaining rights conferred upon employees and those conferred upon employers. It apparently finds this requirement in the demand of the constitutional principle that employers' right to engage in collective bargaining be recognised and protected. It says that a necessary feature of collective bargaining is that there must be a degree of parity between the two sides so that neither obtains an enduring and decisive advantage over the other** But this argument confuses balance of power and strict parity of arms. We accept that healthy collective bargaining requires some balance of power between the two sides in the long term. It does not demand parity of arms. On the contrary, if the one side starts from a position of strength and the other from a position of weakness, a balance of power between them can be achieved only by giving more arms to the weak than to the strong. The initial imbalance of power would be perpetuated by a principle of strict parity of arms. _______________________________________________________________________________ * BSA Objections p.2, para. 33. ** [BSA Objections, p. 3, paras 7-8] _______________________________________________________________________________
(a) The right to strike is workers' only weapon in collective bargaining.* They do not have any other. They have no other way to resist employers' demands or to secure compliance with their own. The right to strike is recognised as "an essential and integral element of collective bargaining"**, because it is the only tool available to workers in pursuit of collective bargaining. _______________________________________________________________________________ * We assume for purposes of this discussion that neither employers nor workers are entitled to demand that their disputes be submitted to arbitration. The New Text does not provide for such compulsory arbitration. ** Barlows Manufacturing Co v. Metal & Allied Workers Union 1990 (2) SA 315 (T) 322F-G; National Union of Mineworkers v. East Rand Gold & Uranium Co [1991] ZASCA 168; 1992 (1) SA 700 (A) 734F. _______________________________________________________________________________ (b) The right to strike is also not a tool used only in collective bargaining. It is also a democratic right. It is a tool legitimately used to defend and advance workers' rights and interests generally. It is, for instance, commonly used to defend and advance workers' political and socioeconomic rights and interests. The legitimacy of its use for these purposes, is well established both locally and internationally. (c) Employers' right to lock out on the other hand, is no more than a weapon used in collective bargaining. It is moreover not the only weapon available to employers in collective bargaining. They have a range of weapons in their armoury. There are broadly four kinds. The first is the right to lock out. The second is the right to discipline workers. The third is the right to dismiss workers. The fourth is the right unilaterally to implement changes in workers' terms of employment. Employers are accordingly not dependent upon a right to lock out in order to pursue collective bargaining meaningfully and effectively. (d) Because of these differences of function and importance between the right to strike and the right to lock out, the former is universally recognised as a fundamental right whilst the latter is not. The right to strike is expressly recognised in article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights and article 6(4) of the European Social Charter. The right to lock out on the other hand, does not enjoy any such recognition.
_______________________________________________________________________________ * BSA Objections, p. 7, para. 15 _______________________________________________________________________________
(a) Section 23(1) of the New Text affords everyone "the right to fair labour practices". Fairness demands a balance of power between employers and employees. Any unfair disturbance of that balance, would violate this constitutional right. A fair balance of power between the two, is thus constitutionally protected. (b) The state may also not deprive employers of all their collective bargaining tools and so reduce their right to engage in collective bargaining to a hollow right devoid of substance, precisely because that would violate their right to engage in collective bargaining. The right entitles employers to engage in meaningful collective bargaining and not merely to engage in a meaningless simulation of it. The state may not take away the right either directly or indirectly by denuding it of all meaningful content.
Employers' right to engage in collective bargaining
- to form, join and participate in employers' organisations and trade unions; and - to engage in collective bargaining through those employers' organisations and trade unions.
_______________________________________________________________________________ * BSA Objection, p.3, para.5] _______________________________________________________________________________ (a) The New Text protects employers' and workers' right to engage in collective bargaining through their employers' organisations and trade unions. By doing so, the New Text affords constitutional protection to the right to bargain in multi-employer bargaining units, which may be at industry level. Although it does not protect individual employers' right to collective bargaining at plant level, it also does not preclude the possibility of bargaining at that level. By protecting the one option and leaving the other open, the constitution does not preclude either. (b) If the New Text had instead afforded constitutional protection to the right to engage in collective bargaining at plant level, it may effectively have excluded the option of collective bargaining at industry level. It is a feature of collective bargaining at industry level, that agreements made between the parties be made binding, not only on the parties to the agreement, but on all employers and employees in the industry. That may however be made impossible if every employer had an individual right to engage in collective bargaining. In other words, if constitutional protection were afforded to the right of every individual employer to engage in collective bargaining, then it may also have implied a constitutional choice in favour of plant level bargaining to the exclusion of industry level bargaining. The one option would have been chosen and the other precluded forever. (c) The objectors would have it that the constitutional principle can be satisfied only by protecting the right of every individual employer to engage in collective bargaining at plant level. Because that may forever preclude collective bargaining at industry level. The implication of the objectors' contention is that the choice was in effect already made in the constitutional principle to opt for plant level bargaining to the exclusion of industry level bargaining. We submit however that the constitutional principle was never intended to make the choice between industry level and plant level bargaining. (d) It is accordingly also appropriate that the New Text should follow the route that would at least leave both options open.
THE ADMINISTRATION OF JUSTICE CPIV: "THE CONSTITUTION SHALL BE THE SUPREME LAW OF THE LAND"
_______________________________________________________________________________ (a) Although the whole LRA is insulated against the constitution, most of its
provisions are entirely consistent with the constitution
and accordingly in any
event not vulnerable to constitutional attack. All these limitations are
arguably permissible in terms of
section 36(1) of the New Text. But it is not
necessary to decide whether they are all within permissible limits. The point
is that the insulation
afforded by section 241(1) of the New Text, if it has any
meaningful content at all, only insulates a few provisions of the LRA within a
very narrow ambit which
might otherwise have been vulnerable to constitutional
attack. (b) The effect of section 241(1) is in other words no more than to permit
certain specific provisions which might otherwise have been inconsistent with
the constitution. (c) Such exclusions from the general ambit of the constitution, are not
uncommon. Chapter 3 of the Interim Constitution includes
a few examples.
Section 8(3) permits corrective measures to redress inequalities of the past,
even if those measures should impinge
upon the guarantee of equality and the
prohibition of discrimination. Section 14(2) permits religious observance at
state and state-aided
institutions despite the fact that such observance might
otherwise have violated the general right to freedom of religion. (d) Section 241(1) of the New Text is a limitation of the same genus. The
only difference is that it is of a more limited variety.
Whereas sections 8(3)
and 14(2) permits any exception of the kind described in those paragraphs,
section 241(1) only permits a particular
set of exceptions, namely those made
under the current provisions of the LRA, and permits those exceptions only for
the lifetime
of those provisions. The legislature is in other words not given
freedom, within the ambit of the exceptions, to legislate with
impunity in
violation of the general terms of the constitution. The constitution itself
gives its blessing to a particular set of
provisions by way of exception to its
general terms. (e) Exceptions of this kind, do not detract from the supremacy of the
constitution. They derive their validity from the constitution
itself. They
serve to define its ambit. They may restrict its scope. But they do not
undermine its supremacy. CPIV: THE CONSTITUTION "SHALL BE BINDING ON ALL ORGANS OF STATE AT ALL
LEVELS OF GOVERNMENT"
CPV: THE LEGAL SYSTEM SHALL ENSURE "AN EQUITABLE LEGAL
PROCESS"
- the right of access to court in terms of section 34, which entitles everyone to have any dispute that can be resolved by the application of law, decided "in a fair public hearing in a court or, where appropriate, another independent and impartial forum" and - the right of every accused to a fair trial in terms of section
35(3). CPVII: THE JUDICIARY SHALL BE APPROPRIATELY QUALIFIED
- section l(c) which identifies "the rule of law" as one of the founding values of the state; - section 34 which entitles everyone to have any justiciable dispute resolved "in a fair public hearing in a court or, where appropriate, another independent and impartial forum"; - section 35(3) which entitles every accused to "a fair trial"; - section 165(2) which provides that the courts are "independent and subject only to the constitution and the law, which they must apply impartially and without fear, favour or prejudice"; - section 165(3) which provides that "no person or organ of state may interfere with the functioning of the courts"; - section 165(4) which provides that "organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts"; and - sections 176 and 177 which affords judges security of tenure. CPVII: THE JUDICIARY "SHALL HAVE THE POWER AND JURISDICTION TO SAFEGUARD
AND ENFORCE THE CONSTITUTION AND ALL FUNDAMENTAL RIGHTS"
- section 1(c) which identifies "the rule of law" as one of the founding values of the state; - section 8(3)(a) which empowers the courts to apply and develop the common law to give effect to the horizontal application of the constitution; - section 37(3) which empowers the courts to determine the validity of a declaration of a state of emergency, any extension of the declaration of a state of emergency and any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency; - section 38 which empowers the courts to "grant appropriate relief" whenever a right in the constitution had been infringed or threatened; - section 165 (5) which provides that "an order or decision issued by a court binds all persons and organs of state to which it applies"; - section 172(1)(a) which provides that a court must declare that any law or
conduct that is inconsistent with the constitution is
invalid to the extent of
its inconsistency. THE STRUCTURING AND FUNCTIONING OF GOVERNMENT CP I: "THE CONSTITUTION OF SOUTH AFRICA SHALL PROVIDE FOR THE ESTABLISHMENT OF ONE SOVEREIGN STATE, A COMMON SOUTH AFRICAN CITIZENSHIP AND A DEMOCRATIC SYSTEM OF GOVERNMENT COMMITTED TO ACHIEVING EQUALITY BETWEEN MEN AND WOMEN AND PEOPLE OF ALL RACES."
(a) One sovereign state: the opening words to section 1 provide that "The Republic of South Africa is one sovereign democratic state". Sovereignty has both an internal and an external aspect. Internally, it means that there is only one state within the territory of South Africa, notwithstanding national and subnational divisions. All legislative bodies derive their authority from the same written constitution. This point was made by Chaskalson P with respect to the 1993 Constitution, when he stated that: the provinces in South Africa are not sovereign states. They were created by the Constitution and have only those powers that are specifically conferred on them under the Constitution.* ______________________________________________________________________________ * "Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill, No. 83 of 1995, CCT 46/85 at para. 23. _______________________________________________________________________________ Externally, sovereignty means that South Africa is not subject to the authority of any other state. (b) Democratic system of government: the commitment to democracy is found in the opening words of section 1, and section l(d), which specifies what democracy means in the South African context. This list includes "Universal adult suffrage, a national common voters roll, regular elections, and a multi-party system". These terms are defined later on by the provisions which give expression to CP VIII. Democracy is a foundational value of the Republic, in large part, because the apartheid era was fundamentally anti-democratic. The goal of democratic government is to ensure "accountability, responsiveness, and openness"; this is also an aspect of CP VI, the separation of powers. (c) Equality between men and women and people all races: section l(b) lists "Non-racialism and non-sexism" as a foundational value of the Republic. The commitment of the new constitutional order to racial equality, in particular, is a foundational value because the apartheid regime was premised on racial inferiority. As well, s. l(a) includes a more general reference to "the achievement of equality ". (d) A common South African citizenship: section 3(1) establishes a common South African citizenship. Once again, a common citizenship is of foundational importance to the new constitution, because a major policy of the apartheid regime was to deny South African citizenship to many black South Africans by making them citizens of "independent homelands". Section 3(2) provides that this citizenship is not only common, but equal, because all citizens are "equally entitled to rights, privileges and benefits of citizenship" and are "equally subject to the duties and responsibilities of citizenship" - This also reflects a response to South Africa's racist past, where the worth of one's citizenship was a function of one's race.
(a) Equality between men and women and people of all races: (i) Section 9 is the equality rights guarantee. The right to equality seems to embrace not only formal equality (e.g. equal before the law, equal protection and benefit of the law), but substantive equality as well, in particular its commitment to "legislative and other measures designed to protect or advance persons, or categories of persons" (section 9(2)). More specifically, Section 9(3) prohibits the state from unfairly discriminating directly or indirectly on one or more grounds, which include race, gender and sex; s. 9(4) prohibits unfair discrimination by any "person" on the same grounds. (ii) Section 184 establishes the Human Rights Commission, which must promote respect for and promote the protection, development, and attainment of human rights. Although these rights are not listed in section 184, they must include the right to non-discrimination on the basis of sex and race. (iii) Section 186(2)(b) establishes that the membership of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities must "broadly reflect the gender composition of South Africa". (iv) Section 174(2) provides that when judicial officers are being appointed, "The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered". (v) Section 193(2) provides that appointments to the various Commissions established in Chapter 9 should "reflect broadly the race and gender composition of South Africa". (b) Democratic system of government: the structure of democratic government is spelled out by provisions which we discuss in relation to other constitutional principles. In particular, CP VI provides for the central role of elected legislative bodies in ensuring the accountability of the executive to the electorate, and CP VIII provides the framework for representative government. CP VI: "THERE SHALL BE A SEPARATION OF POWERS BETWEEN THE LEGISLATURE, EXECUTIVE AND JUDICIARY, WITH APPROPRIATE CHECKS AND BALANCES TO ENSURE ACCOUNTABILITY, RESPONSIVENESS AND OPENNESS."
The second aspect of the separation of powers requires "appropriate checks and balances" among the different branches of government "to ensure accountability, responsiveness and openness", because the strict separation of function may not be a sufficient means to control the accumulation of governmental power. Sometimes this may require a partial relaxation of the strict separation of function among the different branches of government. However, this partial relaxation is justified to ensure the goal of the separation of powers - the control of governmental power. Checks and balances are therefore not an exception to the separation of powers; they are an integral part of it.
(a) Section 36, the limitations clause, curtails the power of the executive to limit rights in the Bill of Rights. Since rights can only be limited "in terms of law of general application", by implication, purely executive action to limit rights, which is unauthorized by the constitution, legislation, the common law, or customary law, is excluded. (b) Sections 44 and 104 outline the jurisdiction of national legislative authority and provincial legislative authority, respectively. By comparison, sections 85 (national government) and 125 (provincial government) establish the constitutional basis of the executive branches. Judicial authority for the whole country is vested in the courts through section 165. (c) The separation between the legislature and the executive is reinforced by sections 57 and 58, 70 and 71, and 116 and 117. Sections 57, 70, and 116 reserve to the National Assembly, the National Council of Provinces, and provincial legislatures, respectively, the power to determine their own internal arrangements, proceedings and procedures, which safeguards the legislative process from executive encroachment. Sections 58, 71, and 117 also preserve the independence of these legislative bodies by conferring on members of these bodies immunity from "civil or criminal proceedings, arrest, imprisonment or damages for: (i) anything that they have said in, produced before, or submitted to" the legislative body to which they belong "or any of its committees"; or (ii) anything revealed as a result of anything that they have said in, produced before, or submitted to" the legislative body to which they belong "or any of its committees". (d) Section 54 reinforces a partial separation between the executive and the legislature, by prohibiting the President and members of the Cabinet who are not members of the National Assembly from voting in the National Assembly, although they may attend and speak at meetings. Section 66(1) provides for a stricter separation between the national executive and National Council of Provinces (NCOP), by prohibiting Cabinet members and Deputy Ministers from voting at meetings of NCOP, although they may attend and speak at meetings. (e) Provision is made in the text for some separation of identity between the executive and legislative branches. Section 47(1)(a) makes "anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service" ineligible to be a member of the National Assembly. This does not affect the President, Deputy President, Ministers, and Deputy Ministers, and persons whose functions are compatible with the functions of a member of the National Assembly and who have been so designated by national legislation. Similar provisions exist for the provinces (section 106(1)(a)) and municipalities (section 158(1)(a) and (b)). Under section 62(4)(b), as soon as a person is appointed to the Cabinet, that person becomes disqualified to be a member of the National Council of Provinces, while under section 87, as soon as a person is elected President, she or he ceases to be a member of the National Assembly.
(a) Section 33 establishes the constitutional foundation for judicial review of administrative action, which enables the judiciary to hold the executive accountable to standards, inter alia, of reasonableness and fairness. (b) Section 55(2) requires the National Assembly to provide for mechanisms to ensure the accountability of all executive organs in the national sphere of government; this responsibility is supplemented by section 56(a), which empowers the National Assembly or any of its committees to "summon any person to appear before it to give evidence on oath or affirmation or to produce documents"; section 56(c) gives it the power to compel any person to comply with a summons "in terms of national legislation or the rules and orders" of the Assembly. Ministers can therefore be compelled to appear. Likewise, section 114(2) allows provincial legislatures to establish mechanisms to ensure the accountability of all provincial executive organs, and section 115 grants provincial legislatures and any of its committees comparable powers to those under section 56. (c) Section 66(2) permits (but does not require) the National Council of Provinces (NCOP) to require a Cabinet Minister, a Deputy Minister or an official in the national or provincial executive to attend a meeting of the Council or a committee of the Council. Presumably, this is designed to ensure that those officials can be questioned in the proceedings, and is supplemented by section 69(a), which empowers the NCOP to "summon any person to appear before it to give evidence on oath or affirmation or to produce documents", and section 69(c), which empowers the NCOP to compel any person to comply with a summons "in terms of national legislation or the rules and orders" of the NCOP. As under sections 56 and 115, Ministers can be compelled to appear. (d) Section 79(1) gives the President the power to refuse assent to and to refuse to sign a Bill, if he or she has reservations about its constitutionality. A similar power is vested in the Premier of a province by section 121(1). (e) Section 86 gives the National Assembly the power to elect the President, which helps to ensure that the President is accountable to the legislature. Section 128 confers a similar power on provincial legislatures with respect to the election of Premiers. (f) Section 89 ensures the ultimate accountability of the President to the National Assembly, by empowering that body to remove the President from Office. However, the scope of this power is limited to extreme circumstances (a serious violation of the Constitution or the law, serious misconduct, or inability to perform the functions of office). (g) Sections 92(2) and 92(3)(b) entrench the principle of individual and collective Ministerial Responsibility, by holding them accountable to Parliament for the performance of their functions. Sections 133(2) and 133(3)(b) entrench the same principles with respect to provincial ministers (members of the Executive Council) and provincial legislatures. (h) Section 101(3) helps to reduce the dangers of executive legislation, by enabling Parliament to pass laws which require such instruments to be tabled in and approved by Parliament. Similarly, see section 140(3) for matters within provincial jurisdiction. (i) Section 102 provides for motions of no-confidence in the National Assembly to ensure the accountability of the executive to the legislature. If a motion is passed against the Cabinet (s. 102(1)), the President must reconstitute the Cabinet; if a motion is passed against the President (s. 102(2)), the President and the Cabinet must resign. Likewise, see s. 141 for the ability of provincial legislatures to hold members of the Executive Council andPremiers accountable through no-confidence motions. (j) Section 37 governs the constitutionality of states of emergency. Although the declaration of a state of emergency confers enormous power on the executive to derogate from many of the protections in the Bill of Rights, the provision includes important checks and balances by the legislature and the judiciary. A state of emergency can only be declared in terms of an Act of Parliament (section 37(1)), and the initial declaration must be renewed after 21 days (section 37(2)(b)); extensions thereafter may be granted for three months, again only by the National Assembly. Furthermore, the legality of a declaration, an extension, and "any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency", is expressly justiciable (section 37(3)); section 37(1) lays down two jurisdictional facts which serve as the basis for judicial review. (k) Legislative oversight of the executive is enhanced by section 188, which establishes the office and powers of the Auditor-General. The Auditor-General is under a duty to "audit and report on the accounts, financial statements and financial management of all national and provincial state departments and administrations; all municipalities; and any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General" (section 188(1)). These reports must be directly submitted to "any legislature that has a direct interest in the audit" (section 188(3)), thereby providing legislatures with information to enhance executive accountability. (l) Section 182 establishes the office and powers of the Public Protector, who can "as regulated by national legislation investigate any conduct in state affairs, or in the public administration of any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice" and "to report on" and "take appropriate remedial action" in response to that conduct (section 182(1)). Although the Public Protector seems to be primarily charged with redressing individual grievances, "Any report issued by the Public Protector must be open to the public" unless national legislation prescribes otherwise in "exceptional circumstances" (section 182(5)). The public availability of these reports also enhances legislative oversight of the executive. (m) The Public Service Commission, established by section 196, also enhances legislative oversight of the executive. The Commission is charged with promoting "the values and principles of public administration in the public service" (section 196(1)), which include, inter alia, "A high standard of professional ethics" and the "Efficient, economic and effective use of resources" (section 195(1)). Since the Commission is accountable to the National Assembly (section 196(5)), it will assist the Assembly in holding the executive accountable. (n) Section 199(8) establishes another check on executive power, by granting "multi-party parliamentary committees... oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament". (o) Sections 174 and 177 safeguard the independence of the judiciary. Section 174(7) provides that judicial officers, other than members of the Constitutional Court and the Chief Justice and Deputy Chief Justice, "must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice". Section 177 lays down stringent requirements for the removal of judges, who must be found to be suffering from an incapacity, be grossly incompetent, or guilty of gross misconduct. These sections are more fully discussed under CP VII. CP VIII: "THERE SHALL BE REPRESENTATIVE GOVERNMENT EMBRACING MULTI-PARTY DEMOCRACY, REGULAR ELECTIONS, UNIVERSAL ADULT SUFFRAGE, A COMMON VOTERS' ROLE, AND, IN GENERAL, PROPORTIONAL REPRESENTATION."
(a) Section 42(3) establishes the democratic credentials of the National Assembly, by providing that the Assembly "is elected to represent the people and to ensure government by the people under the Constitution." It promotes democratic government "by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action". (b) Section 46(1) reaffirms the democratic credentials of the National Assembly, by providing that the "electoral system" which governs the election of the Assembly, is, inter alia, based on the national common voter's roll. (c) Section 57(1)(b) provides that the National Assembly may make rules and orders concerning its business, with due regard, inter alia, to representative democracy. (d) Section 86 provides that the National Assembly, a representative body, is charged with electing the President of the Republic; furthermore, sections 89 (Removal of the President) and 102 (Motions of no-confidence) provide for the removal of the President by the National Assembly. In this way, the President is accountable to elected representatives, which helps to ensure that the Presidency is a representative institution. (e) Section 105(1) (compare section 46(1)) establishes the democratic credentials of provincial legislatures, by providing that the electoral system which governs the election of a legislature shall be based, inter alia, on that province's segment of the national common voters roll. (f) Section 116()(b) (compare section 57(1)(b)) provides that a provincial legislature may make rules and orders concerning its business, with due regard, inter alia, to representative democracy. (g) Section 128 (compare section 86) provides that a provincial legislature, a representative body, is charged with electing the Premier of a Province; furthermore, section 141 (motions of no-confidence) provides for the removal of the Premier by a provincial legislature. In this way, the Premier is accountable to elected representatives, which helps to ensure that the Premiership is a representative institution.
(a) Section 19 enshrines political rights which protect the ability of citizens to meaningfully participate in democratic governance. These include a set of rights relating to political parties, in section 19(1): the right of every citizen to form a political party; to participate in the activities of, or recruit members for, a political party; and to campaign for a political party or cause. (b) Section 57(2) protects multi-party democracy in the National Assembly in three ways: (i) by requiring that "all minority parties represented in the Assembly" be allowed to participate "in the proceedings of the Assembly, and its committees... in a manner consistent with democracy" (section 57(2)(b)), the text seeks to ensure that all political parties, not just a majority party, are given the means to influence the legislative process; (ii) by requiring that the rules and orders of the National Assembly provide for financial and administrative assistance to each political party represented in the Assembly in proportion to their representation, to enable each party and its leader to perform its functions in the Assembly effectively (section 57(2)(c)), political parties are given the financial means to influence the political process; and (iii) by requiring the recognition of the leader of the largest minority party in the Assembly as the Leader of the Opposition (section 57(2)(d)). Although the Constitution does not specifically provide for the rights and responsibilities of the Leader of the Opposition, the entrenchment of this position recognizes the importance of opposition parties to the democratic process. (c) Section 70(1)(b) requires that the National Council of Provinces make rules and orders concerning its business, which must have regard to "representative... democracy ". (d) Section 116(2) protects multi-party democracy in the provincial legislatures in three ways (see discussion of sections 52(2) above): (i) by requiring that "all minority parties represented in the legislature" be allowed to participate "in the proceedings of the legislature... in a manner consistent with democracy" (section 116(2)(b); compare section 57(2)(b)), the text seeks to ensure that all political parties, not just a majority party, are given the means to influence the legislative process; (ii) by requiring that the rules and orders of the provincial legislature provide for financial and administrative assistance to each political party represented in the legislature in proportion to their representation, to enable each party and its leader to perform its functions in the Assembly effectively (section 116(2)(c)), political parties are given the means to influence the financial political process; and (iii) by requiring the recognition of the leader of the largest minority party in the legislature as the Leader of the Opposition (section 57(2)(d)). Although the Constitution does not specifically provide for the rights and responsibilities of the Leader of the Opposition, the entrenchment of this position recognizes the importance of opposition parties to the democratic process. (e) Multi-party democracy is also protected by section 61(2), which governs the allocation of delegates to the National Council of Provinces (NCOP) from the various provincial legislatures, and seeks to ensure that minority parties in provincial legislatures are represented in the NCOP. As discussed below under CP XIV, the provision leaves the calculation of minority party representation to national legislation. (f) The rules and orders of the NCOP also further multi-party democracy, by providing for the participation of minority political parties in a manner consistent with democracy, with respect to Bills falling outside the functional areas listed in Schedule 4 (section 70(2)(c). (g) Section 78(1)(a) promotes multi-party democracy in the Mediation Committee, by requiring that representation of parties on the Committee be in substantially the same proportion that parties are represented in the Assembly. (h) Section 199(8) charges multi-party committees with the task of overseeing "all security services". (i) Section 236 provides that national legislation must fund "political parties participating in national and provincial legislatures on an equitable and proportional basis".
(a) Section 19(2) enshrines the right of every citizen to free, fair, and regular elections for any legislative body established in terms of the Constitution. (b) Section 49 governs the duration of the National Assembly, which ensures that there are regular elections: (i) Section 49(1) sets the term of the National Assembly at a maximum of 5 years, thereby guaranteeing regular elections. (ii) Under section 49(2), if the National Assembly is dissolved by the President or Acting President (pursuant to section 50) before the expiry of its term, or when its terms expires, then the President must call an election which must held within 90 days of the dissolution of the Assembly or the expiry of the Assembly's term. (iii) If the result of an election is not declared within the period established under s. 190 or if an election is set aside by a court, the President must call an election to held within 90 days of the expiry of that period or the date of the court decision (section 49(3)). (c) Section 86(1) provides that the National Assembly shall elect the President of the Republic "At its first sitting after its election". The President's term of office runs until "the person next elected President assumes office" or when a vacancy arises (section 88(1)). It follows from these two provisions that regular elections of the National Assembly in turn guarantee regular elections of the President. (d) Section 108 governs the duration of provincial legislatures, which ensures that elections are held regularly (compare section 49 above): (i) Section 108(1) sets the term of a provincial legislature at a maximum of 5 years, which ensures that elections are held regularly. (ii) Under section 108(2), if a provincial legislature is dissolved by the Premier of the province (pursuant to section 109) before the expiry of its term, or when its terms expires, then the Premier must call an election which must be held within 90 days of the dissolution of the legislature or the expiry of the legislature's term. (iii) If the result of an election is not declared within the period established under s. 190 or if an election is set aside by a court, the President must call an election to be held within 90 days of the expiry of that period or the date of the court decision (section 108(3)). (e) Section 128(1) provides that a provincial legislature shall elect the Premier of the province "At its first sitting after its election". The Premier's term of office runs until "the person next elected Premier assumes office" or when a vacancy arises (section 130(1)). It follows these two provisions that regular elections of the provincial legislatures in turn guarantee regular elections of the Premiers (compare sections 86(1) and 88(1) above). (f) Section 190 establishes the Electoral Commission, which is charged with, inter alia, ensuring that those elections are free and fair.
(a) Section 19(3)(a) protects the right of every adult citizen to vote in elections for legislative bodies established in terms of the Constitution by secret ballot. (b) Section 46(1)(c) requires the electoral system which governs the election of the National Assembly to provide "for a minimum voting age of 18 years". This section limits the suffrage to adult voters, but would also seem to permit limits on adult suffrage to classes of adults over 18. However, section 46(1)(c) must be read subject to s. 19(3)(a), which clearly establishes the right of all adult citizens to vote. Section 46(1)(c), in this light, merely establishes a minimum voting age. (c) Section 105(1)(c) requires that the electoral system which governs the election of the provincial legislature to provide "for a minimum voting age of 18 years" (For discussion, see s. 41(1)(c) above).
(a) Section 46(1)(b) requires that the electoral system which governs the election of the National Assembly must be "based on the national common voters' roll". (b) Section 105(1)(b) requires that the electoral system which governs the election of a provincial legislature must be "based on that province's segment of the national common voters roll". (c) Section 157(2) requires that the electoral system which governs the election of a Municipal Council must rely on that municipality's segment of the national common voters roll. 105. In General, Proportional Representation (a) Section 46(1)(d) requires the electoral system which governs the election of the National Assembly to result "in general, in proportional representation". Section 46(2) seems to provide that an Act of Parliament will provide the details of how proportional representation would work. (b) Section 105(1)(d) requires the electoral system which governs the election of a provincial legislature to result "in general, in proportional representation". Section 105(2) seems to provide that an Act of Parliament will provide the details of how proportional representation would work. (c) Section 157(2) requires that the electoral system for the election of Municipal Councils must prescribe a system of proportional representation, which may be combined with a system of ward representation. Section 157(3) spells out the requirement for proportional representation further, by requiring that "the total number of members elected from each party reflects the total proportion of the votes recorded for those parties". CP IX: "PROVISION SHALL BE MADE FOR FREEDOM OF INFORMATION SO THAT THERE CAN BE OPEN AND ACCOUNTABLE ADMINISTRATION AT ALL LEVELS OF GOVERNMENT."
107. Freedom of Information in the Legislative Process (a) National Government (i) Section 55(2) promotes freedom of information by requiring the National Assembly to provide for mechanisms to maintain oversight of the exercise of national executive authority, including the implementation of legislation, and to ensure that all executive organs of state in the national sphere are accountable to it. This may include a requirement that proclamations, regulations and other instruments of subordinate legislation be tabled in and/or approved by Parliament (section 104(3)). Since the National Assembly must conduct its business in an open manner (see section 59(b) below), legislative supervision of the executive will expose executive decisions to public scrutiny. (ii) Section 56 empowers the National Assembly or any of its committees to summon any person to appear before it to ‑give evidence on oath or affirmation or to produce documents, and to require any person or institution to report to it. (iii) Section 57(1)(b) confers on the National Council of Provinces the power to make rules and orders concerning its business, with due regard, inter alia to "accountability" and "transparency". Accountable and transparent procedures, by implication, bring with them freedom of information. (iv) Section 59(b) requires the National Assembly to "conduct its business in an open manner" and to "hold its sittings, and those of its committees, in public", although reasonable measures can be taken to regulate public access. (v) Section 70(1)(b) (see section 57(1)(b) above) confers on the National Council of Provinces the power to make rules and orders concerning its business, with due regard, inter alia to "accountability" and "transparency". (vi) Section 72(b) requires the National Council of Provinces to "conduct its business in an open manner" and to "hold its sittings. and those of its committees, in public", although reasonable measures can be taken to regulate public access (see section 59(b)). (vii) Section 81 Provides that an Act of Parliament "must be published promptly" once assented to and signed by the President. (b) Provincial Government (i) Section 114(2) promote freedom of information by requiring the provincial legislatures to provide for mechanisms to maintain oversight of the exercise of national executive authority, including the implementation of legislation, and to ensure the accountability of all provincial executive organs of state in the province. This may include a requirement that proclamations, regulations and other instruments of subordinate legislation be tabled in and/or approved by a provincial legislature (section 140(3)). Since provincial legislatures must conduct their business in an open manner (see section 118(b) below), legislative supervision of the executive will expose executive decisions to public scrutiny (see above section 55(2)). (ii) Section 115 empowers a provincial legislation or any of its committees to summon any person to appear before it to give evidence on oath or affirmation or to produce documents, and to require any person or institution to report to it. (iii) Section 118(b) requires a provincial legislation to "conduct its business in an open manner" and to "hold its sittings, and those of its committees, in public", although reasonable measures can be taken to regulate public access (see above sections 55(b) and 72(b)). (iv) Section 123 provides that an Act of a provincial legislature "must be published promptly" once assented to and signed by the Premier of a province.
(a) Section 101(2) provides that proclamations, regulations and other instruments of subordinate legislation of the national government must be accessible to the public. (b) Section 140(2) provides that proclamations, regulations and other instruments of subordinate legislation of a province must be accessible to the public. (c) Section 188, discussed above in relation to CP VI, promotes freedom of information with respect to executive decisions, because all reports of the Auditor-General must be made public (section 188(3)). (d) Section 182(5), discussed above in relation to CP VI, promotes freedom of information with respect to executive decisions, by requiring that "Any report issued by the Public Protector must be open the public", save for "exceptional circumstances". (e) Section 195(1)(g) promotes freedom of information in public administration, by making enshrining the following principle: Transparency must be fostered by providing the public with timely, accessible and accurate information. CP X: "FORMAL LEGISLATIVE PROCEDURES SHALL BE ADHERED TO BY LEGISLATIVE ORGANS AT ALL LEVELS OF GOVERNMENT."
Section 42(2) establishes that the National Assembly and the National Council, which together comprise Parliament, "participate in the legislation process in the manner set out in the Constitution". The core features this process can be found in sections 73 to 82 of Chapter 4 ('Parliament'), which are under the heading "National Legislative Process": (a) Any Bill can be introduced in the National Assembly (section 73(1)); however, only Bills which fall within a functional a listed in Schedule 4 ('Functional Areas of Concurrent National Provincial Legislative Competence'), and which is not a money Bill, may be introduced in the National Council of Provinces (section 73(3). (b) Bills in the National Assembly can only be introduced by Cabinet members, Deputy Ministers, or members or committees of the National Assembly; but money Bills can only be introduced by "the Cabinet members responsible for national financial matters" (section 73(2); also see section 55(1)(b)). In the National Council of Provinces, Bills may only be introduced by "a member, or a committee, of the National Council of Provinces" (section 73(4); also see section 68(b)). (c) When a Bill is passed by one chamber of Parliament, it must be referred to the other body (section 73(5)). (d) The National Assembly enjoys privileged status in the national legislative process. It has the power to "consider, pass, amend or reject any legislation" that comes before it (section 55(1)). The National Council of Provinces, by contrast, can "consider, pass, amend or reject any legislation" before it "in accordance with the Chapter" (section 68); its role depends on the subject-matter of the legislation: (i) Section 74 establishes special procedures for the passage of Bills outside Schedule 4. The thrust of these provisions is that the NCOP exercises reduced legislative powers with respect to these subject-matters. (ii) By comparison, section 76 puts the NCOP in a more equal footing with the National Assembly with respect to matters falling within Schedule 4. If the NCOP and the National Assembly are unable to agree on a Bill, it must go through the Mediation Committee, which has equal representation from both chambers (section 78). If the Committee is unable to agree within 30 days, the Bill lapses, although the National Assembly by at least a two‑-thirds majority can adopt its own Bill without the NCOP (section 78(1)(e)). (e) There are a number of miscellaneous provisions which outline important features of the national legislative process: (i) Section 45(a) requires the National Assembly and National Council of Provinces to "establish a joint rules committee to make rules and orders concerning the business of the Assembly and Council, including rules and orders... to determine procedures to facilitate the legislative process". (ii) Section 57(1)(b) empowers the National Assembly to make rules and orders concerning its business; under section 57(2)(a), these rules and orders must provide for the establishment, composition, powers, functions, procedures and duration of its committees, which are involved in the legislative process. (iii) Section 70(1)(b) (compare section 57(1)(b)) empowers the National Council of Provinces to make rules and orders concerning its business; under section 70(2)(a) (compare section 57(2)(a)), these rules and orders must provide for the establishment, composition, powers, functions, procedures and duration of its committees. (iv) Section 56, discussed above, establishes in rough outline the powers of the National Assembly or any of its committees with respect to summoning witnesses, etc. (v) Section 69 (compare section 56), discussed above, establishes in rough outline the powers of the National Council of Provinces or any of its committees with respect to summoning witnesses, etc. (vi) Section 53 governs the manner in which the National Assembly votes on decisions, including quorum. (vii) Section 65 governs the manner in which the National Council of Provinces may take decisions. (viii) Section 79 provides that the President must either assent to and sign a Bill, or refer it back to the National Assembly for reconsideration if he or she has reservations about the constitutionality of the Bill (section 79(1)). If after the reconsideration, the President still has reservations, the President must either assent to and sign the Bill or refer it to the Constitutional Court for a decision (section 79(4)). If the Bill is held to be constitutional, the President must assent to and sign it (section 79(5)). (ix) Section 81 provides that an Act of Parliament does not take effect until published (or on a later date determined in terms of the Act), thereby preventing the passage of secret laws.
(a) All Bills must be introduced in the provincial legislature (section 119), which is the unicameral organ vested with legislative authority in the province (section 104). (b) Section 119 provides that only members of the Executive Council of a province or a committee or a member of a provincial legislature may introduce a Bill in the legislature, but only the member of the Executive Council responsible for financial matters in the province may introduce a money Bill. (c) Section 114 provides that in exercising its legislative power, a provincial legislature may "consider, pass, amend or reject any legislation before the Assembly". (d) There are a number of miscellaneous provisions governing the provincial legislative process: (i) Section 112 (compare section 53) governs the manner in which the provincial legislature votes on decisions, including quorum. (ii) Section 115 (compare section 56), discussed above, establishes in rough outline of the powers of a provincial legislature or any of its committees with respect to summoning witnesses, etc. (iii) Section 116(1)(b) (compare section 57(1)(b)) empowers a provincial legislature to make rules and orders concerning its business; under section 116(2)(a) (compare section 57(2)(a)), these rules and orders must provide for the establishment, composition, powers, functions, procedures and duration of its committees. (iv) Section 121 provides that the Premier must either assent to and sign a Bill, or refer it back to the provincial legislature for reconsideration if he or she has reservations about the constitutionality of the Bill (section 121(1)). If after the reconsideration, the Premier still has reservations, the Premier must either assent to and sign the Bill or refer it to the Constitutional Court for a decision (section 121(2)). If the Bill is held to be constitutional, the Premier must assent to and sign it (section 121(3). (v) Section 123 provides that an Act of a provincial legislature does not take effect until published (or on a later date determined in terms of the Act), thereby preventing the passage of secret laws.
(a) Section 160(1) empowers a Municipal Council to make rules and orders governing its business and proceedings, and the establishment, composition, procedures, powers and functions of its committees. (b) Section 162(1) provides that a municipal by-law is only in force after it has been published in the official gazette of the relevant province. CP XIV: "PROVISION SHALL BE MADE FOR PARTICIPATION OF MINORITY POLITICAL PARTIES IN THE LEGISLATIVE PROCESS IN A MANNER CONSISTENT WITH DEMOCRACY."
(a) National Government (i) Minority party participation is fostered by proportional representation, which sections 46(1)(d) and 46(2) establish as the system for electing members of the National Assembly. In contrast to a constituency system, proportional representation is more favourable to parties whose support is geographically dispersed. (ii) Section 57(2)(b) requires that the rules and orders of the National Assembly provide for "the participation in the proceedings of the Assembly, and its committees, of all minority political parties represented in the Assembly, in a manner consistent with democracy". (This provision has been discussed with respect to CP VIII.) (iii) Section 57(2)(c) requires that the rules and orders of the National Assembly provide for "financial and administrative assistance to each political party represented in the Assembly in proportion to their representation, to enable each party and its leader to perform its functions in the Assembly effectively" (this provision has been discussed with respect to CP VIII). (iv) Section 57(2)(d) requires that the rules and orders of the National Assembly provide for "the recognition of the leader of the largest minority party in the Assembly as the Leader of the Opposition" (this provision has been discussed with respect to CP VIII). (v) Section 61(2) governs the allocation of delegates to the National Council of Provinces (NCOP) from the various provincial legislatures, and seeks to ensure that minority parties in provincial legislatures are represented in the NCOP. The formula to determine party representation in provincial delegations are contained in Schedule 3. (vi) Section 70(2)(c) provides that the rules and orders of the National Council of Provinces must provide for the participation of minority political parties in a manner consistent with democracy, with respect to Bills falling outside the functional areas listed in Schedule 4. (vii) Section 78(1)(a) protects the role of minority parties on the Mediation Committee, by requiring that the representation of parties on the committee be substantially the same proportion that parties are represented in the Assembly. (b) Provincial Government (i) Minority party participation is fostered by proportional representation, which section 105(1)(d) establishes as the system for electing members of the provincial legislatures. (ii) Section 116(2)(b) (see s. 57(2)(b) above) requires that the rules and orders of a provincial legislature provide for "the participation in the proceedings of the legislature, and its committees, of all minority political parties represented in the legislature, in a manner consistent with democracy". (This provision has been discussed with respect to CP VIII.) (ii) Section 116(2)(c) (see s. 57(2)(c) above) requires that the rules and orders of a provincial legislature provide for "financial and administrative assistance to each political party represented in the legislature in proportion to its representation, to enable each party and its leader to perform its functions in the legislature" (this provision has been discussed with respect to CP VIII). (iii) Section 116(2)(d) (see s. 57(2)(d) above) requires that the rules and orders of a provincial legislature provide for "the recognition of the leader of the largest minority party in the legislature as the Leader of the Opposition" (this provision has been discussed with respect to CP VIII). (c) Municipal Government (i) Minority party participation is fostered by proportional representation, which section 157(2) and 157(3) establish as an element of the system for electing members of Municipal Councils. (ii) Minority parties' involvement in Municipal Councils and their committees is protected by section 160(3)(a), which requires that "Members of a Municipal Council must be able to participate in its proceedings and those of its committees in a manner that... allows parties and interests reflected in the Council to be fairly represented". CP XV: "AMENDMENTS TO THE CONSTITUTION SHALL REQUIRE SPECIAL PROCEDURES INVOLVING SPECIAL MAJORITIES."
The procedures governing constitutional amendments are found in section 74. The procedures vary depending on the subject-matter of the amendment. (a) Authority to amend the Constitution normally vests in the National Assembly (section 74(1)(a)). In contrast to votes on normal Bills, for which the quorum is one-third, bills to amend the Constitution , seem to require a quorum of two-thirds, since the Constitution can only be amended by the National Assembly by a vote of at least two-thirds vote of "its members". (b) However, under section 74(1)(b), for a constitutional amendment which (I) affects the Council of Provinces (NCOP), (ii) alters provincial boundaries, powers, functions or institutions, or (iii) amends a provision that deals specifically with a provincial matter, the NCOP must vote on the amendment as well. (c) Under section 74(3), if a constitutional amendment "concerns only a specific province or provinces, the National Council of Provinces may not pass it unless the Bill has been approved by the relevant provincial legislature or legislatures". This is a further departure from normal procedure. (d) Under section 74(4), Parliament "may not pass a Bill that amends the Constitution and concerns the powers, boundaries, or functions or provinces until it has been referred to the provincial legislatures for their views", which is again a departure from normal procedure. The weaker duty of consultation, as opposed to consent, arises because the amendment merely "concerns", but does not "alter" provincial boundaries, powers, functions.
(a) Section 74(1)(a) requires that a Bill to amend the Constitution be passed by at least two thirds of the members of the National Assembly, instead of the normal simple majority (section 53(1)(c)). (b) Section 74(1)(b) requires that a Constitutional Amendment which (i) affects the Council of Provinces, (ii) alters provincial boundaries, powers, functions or institutions, or (iii) amends a provision that deals specifically with a provincial matter be approved by six provinces out of nine (as opposed to the usual five: section 65(1)(b)). CP XVI: "GOVERNMENT SHALL BE STRUCTURED AT NATIONAL, PROVINCIAL AND LOCAL LEVELS."
(i) "In the Republic, government is constituted as national, provincial and local spheres of government, which are distinctive, interdependent and interrelated. (ii) "All spheres of government must observe and adhere to the principles in this Chapter and must conduct the activities within the parameters that the Chapter provides. "
"43. In the Republic, the legislative authority - (a) of the national sphere of government is vested in Parliament, as set out in section 44; (b) of the provincial sphere of government is vested in the provincial legislature of a province, as set out in section 104; and (c) of the local sphere of government is vested in Municipal Councils, as set out in section 156."
(a) National Government: Sections 42 and 44 of the Text deal with the composition of Parliament and the powers of the national legislative authority, respectively. Section 85 deals with the national executive authority. (b) Provincial Government: Sections 104 and 105 deal with the legislative authority and composition of provincial legislatures, respectively. Section 125 provides for the executive authority of provinces. (c) Local Government: Section 151 provides for the structure and the executive and legislative authority of municipalities. Section 156 deals with the powers and functions of municipality. CP XVII: "AT EACH LEVEL OF GOVERNMENT THERE SHALL BE DEMOCRATIC REPRESENTATION. THIS PRINCIPLE SHALL NOT DEROGATE FROM THE PROVISIONS OF PRINCIPLE XIII."
(a) Section 46 provides that the National Assembly shall be "elected" in terms of an electoral system which is, inter alia, based on the national common voters roll. (b) Section 105 (compare section 46) provides that a provincial legislature shall be elected in terms of an electoral system which is, inter alia, based on that province's segment of the national common voters roll. (c) Section 157 provides that a Municipal Council is either elected and/or appointed by another Municipal Council to represent that other Council (section 157(1)). The provision specifies two different ways that a Municipal Council may be elected: (i) by proportional representation, or (ii) proportional representation combined with a system of ward representation (section 157(2)).
(a) Section 211(2) provides that a traditional authority that observes a system of customary law may function, subject to any applicable legislation and customs (including amendments and repeals). The provision is broad enough to embrace the exercise of government authority by traditional leaders. No mention is made of the need for democratic representation. (b) Under section 212(1), "National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities". This provision seems to contemplate a governmental role for traditional leaders, and does not make any mention of democratic representation. CP XXIV: "A FRAMEWORK FOR LOCAL GOVERNMENT POWERS, FUNCTIONS AND STRUCTURES SHALL BE SET OUT IN THE CONSTITUTION. THE COMPREHENSIVE POWERS, FUNCTIONS AND OTHER FEATURES OF LOCAL GOVERNMENT SHALL BE SET OUT IN PARLIAMENTARY STATUTES OR IN PROVINCIAL LEGISLATION OR BOTH."
Chapter 7 establishes the framework for local government powers, functions, and structures. (a) Section 151(1) establishes that local government consists of municipalities, which must be established for the whole territory of the Republic. The executive and legislative authority of a municipality is vested in its Municipal Council (section 151(2)). A municipality has the right to govern, on its own initiative, the local government affairs of its community (section 151(3)). (b) The objects of local government are spelled out in section 152, which include, e.g. the promotion of social and economic development, and the provision of services to communities in a sustainable manner. (c) Section 153 imposes two "developmental duties" on municipalities: (i) to structure and manage its administration, financing, etc. in order to give priority to the basic needs of the community and the social and economic development of the community, and (ii) to participate in national and provincial development programmes. (d) Section 154 situates municipalities within the text's commitment to co-operative government, by imposing on national and provincial governments a duty to "support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions", and to publish any Bill "that affects the status, institutions, powers or functions of local government" in order to allow for representations by municipalities (and other parties) with regard to the Bill. (e) Section 156 establishes the powers and functions of a municipality: (i) its executive authority encompasses: the right to administer "local government matters listed in Part B of Schedule 4 and Part B of Schedule 5 "; "Schedule 4 and Part B of Schedule 5 "; "any other matter assigned or delegated to it by national or provincial legislation" (section 156(1)), which includes matters which national and provincial government must assign or delegate because they "necessarily" relate to local government, would most effectively be administered locally, and the municipality has the capacity to administer it (section 156(4); by-laws which it has enacted (section 156(2)); and "the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions" (section 156(5)); (ii) its legislative authority includes the power to make by‑laws "for the effective administration of matters which it has the right to administer" (section 156(2)), although by‑laws must give way to conflicting national or provincial legislation unless that legislation is itself inoperative (section 156(3)). A by-law is only in force "after it has been published in the official gazette of the relevant province" (section 162(1)). (f) Sections 157 and 158 provide for the composition and election, and the membership, respectively, of Municipal Councils. (g) Section 160 concerns the internal procedures of Municipal Councils, including its "business and proceedings", a "establishment, composition, procedures, powers and functions of its committees" (section 160(1)). As well, it establishes a presumption that meetings of a Municipal Council and its committees be open (section 160(2)), and that members of a Municipal Council have the right to participate in its and its committees' proceedings in a manner that allows the fair representation of the parties and interests within the Council, and "is consistent with democracy (section 160 (3)).
(a) Section 151(3) underlines the importance of national and provincial legislation by qualifying a municipality's "right to govern" by "national and provincial legislation, as provided for in the Constitution". However, notwithstanding section 151(3), "National and provincial government may not compromise or impede a municipality's ability or right /to exercise its powers or perform its functions" (section 151(4)). Read together, these provisions suggest that the national and provincial governments must facilitate local government, not thwart it. (b) Section 155 spells out the precise role for national and provincial governments: (i) national legislation must determine "the different categories of municipality that may be established" (section 155(1)(a)), "appropriate fiscal powers for each category" (section 155(1)(b)), and "procedures and criteria for the demarcation of municipal boundaries by an independent authority" (section 155(1)(c)). (ii) provincial governments, "by legislative or other measures" must "establish municipalities" (section 155(2)(a)), "provide for the monitoring and support of local government in the province" (section 155(2)(b)), and "promote the development of local government capacity to perform its functions and its ability to manage its own affairs" (section 155(2)(c)). (c) The imperative wording of the language in section 155 imposes a duty on provincial and national governments to undertake the measures referred to therein. However, the broad language of the provision would seem to leave considerable scope to the national and provincial governments to choose the means of satisfying these duties. (d) There is a slight difference in language between principle XXIV and section 155(2), in that the former refers to "provincial legislation", but the latter "legislative or other measures". The broader wording of section 155(2) seems to comprehend executive action by provincial governments in relation to local government, and might refer to the power of provincial governments to supervise municipalities which cannot or do not fulfil their executive obligations in terms of legislation, under section 139. (e) This slight departure from CP XXIV can be justified by reference to CP XX, which states that "Each level of government shall have appropriate and adequate legislative and executive powers and functions that will enable each to function effectively". Since section 139 is premised on the failure of a municipality to "fulfil an executive obligation" (section 139(1)), the provincial power can be seen as attempt to balance CP XXIV and CP XX. (f) Section 161 permits "Provincial legislation, within the framework of national legislation", to "provide for privileges and immunities of Municipal Councils and their members". (g) Section 163 requires that Parliament enact legislation providing for the recognition of national and provincial organizations representing municipalities, and determine procedures by which local government may consult with national and provincial governments, and designate representatives. (h) Section 164 leaves residuary powers with respect to municipalities with the national government, by providing that "All other matters relating to local government not dealt with in the Constitution may be prescribed by national legislation or provincial legislation within the framework of national legislation". CP XXV: "THE NATIONAL GOVERNMENT AND PROVINCIAL GOVERNMENTS SHALL HAVE FISCAL POWERS AND FUNCTIONS WHICH WILL BE DEFINED IN THE CONSTITUTION. THE FRAMEWORK FOR LOCAL GOVERNMENT REFERRED TO IN PRINCIPLE XXIV SHALL MAKE PROVISION FOR APPROPRIATE FISCAL POWERS AND FUNCTIONS FOR DIFFERENT CATEGORIES OF LOCAL GOVERNMENT."
(a) Section 215 implies that each sphere of government has the power to set a budget. The text requires that all spheres of government adopt "budgets and budgetary processes" that "promote transparency, accountability, and the effective financial management of the economy, debt and the public sector" (section 215(1)), and that budgets must contain estimates of revenue and expenditure, proposals for deficit financing if necessary, etc. (section 215(3)). It is left to national legislation to prescribe the form, timing, and detailed revealing of "sources of revenue and the way in which proposed expenditure will comply with national legislation" (section 215(2)). (b) Section 217 defines the scope of government procurement powers. Although procurement systems must be "fair, equitable, transparent, competitive and cost-effective" (section 217(1)), procurement policies be preferential (section 217(2)). "National legislation must prescribe a framework within which" preferential policies can be implemented (section 217(3)). (c) Section 218 provides that all three spheres of government have the power to guarantee loans, but only if those guarantees comply with "conditions set down in national legislation" (section 218(1)).
(a) National government (i) A number of the above provisions refer to national legislation in framing the powers of all three spheres of government: budgetary powers (section 215(2)), preferential procurement (section 217(2)), and government guarantees (section 217(3)). (ii) Treasury control (section 216), by contrast, largely resides with the national government. The text imposes a duty to adopt national legislation to "establish a national treasury and prescribe measures to ensure both transparency and expenditure control in each sphere of government" (section 216(1)). The national treasury may withhold transfer payments to any organ of state "for serious or persistent material breach" of these measures, but only "with the concurrence of the Cabinet members responsible for national financial matters" (section 216(2)). The decision to withhold funds must be approved, and can be renewed by Parliament (section 216(3)). (iii) The remuneration of persons holding public office (section 219) is also left to national legislation. The legislation must establish "an independent commission to make recommendations concerning the salaries, allowances and benefits" of persons holding public office (section 219(2)). The legislation may set the salaries, allowances and benefits of persons holding national offices and the upper limits of salaries, allowances or benefits of persons holding provincial and municipal offices. Separate legislation is contemplated for judges, the Public Protector, the Auditor-General, and members of Commissions established by the Constitution, including the Broadcasting Authority (section 219(5)). (b) Provincial governments (i) Section 226 establishes a provincial revenue fund for each province, which contains all money "specified by an Act of Parliament" but "received by the provincial government" (section 226(1)). Despite the importance of national legislation, money can be withdrawn only "in terms of an appropriation by a provincial Act", or as a direct charge against the Fund, established by the constitution or provincial legislation. (ii) Section 228 gives the province the power to imposes taxes "other than income tax, value-added tax, general sales tax, rates on property, or customs duties" and "flat-rate surcharges on the tax bases of any national tax, levy or duty" except "the tax bases of corporate income tax, value-added tax, rates on property, or customs duties" (section 228(1)). Provincial taxation powers are limited by the imperatives of national economic policies, inter‑provincial economic activity, and the national common market, and must be regulated by national legislation (section 228(2)). (iii) The power of the provinces to raise loans is set out in section 230. Loans may be raised for capital or current expenditure, but loans for current expenditure can only be raised for bridging purposes during a fiscal year and must be repaid within twelve months. (c) Municipal governments (i) Municipalities have the power to "impose rates on property, and excise taxes, and, subject to national legislation, may impose other taxes, levies or duties". However, no municipality may "impose any income tax, value-added tax, general sales tax, surcharge or customs duty" (section 229(1)). (ii) The power of the municipalities to raise loans is set out in section 230. Loans may be raised for capital or current expenditure, but loans for current expenditure can only be raised for bridging purposes during a fiscal year and must be repaid within twelve months.
Notwithstanding the above provisions, which seem to apply to all municipal governments, section 155(1) provides national legislation must determine different categories of municipalities and appropriate fiscal powers and functions for each. CP XXVI: "EACH LEVEL OF GOVERNMENT SHALL HAVE A CONSTITUTIONAL RIGHT TO AN EQUITABLE SHARE OF REVENUE COLLECTED NATIONALLY SO AS TO ENSURE THAT PROVINCES AND LOCAL GOVERNMENTS ARE ABLE TO PROVIDE BASIC SERVICES AND EXECUTE THE FUNCTIONS ALLOCATED TO THEM."
(a) Section 213 establishes a National Revenue Fund. All money specified by an Act of Parliament and received by the national government, i.e. revenue collected nationally, goes into this Fund. A province's equitable share of revenue raised nationally is a direct charge against the Fund (section 213(3)). (b) Section 214 provides for the equitable division of "revenue raised nationally" among the national, provincial and local spheres of government. The equitable division among the three spheres of government, and the task of determining each province's equitable share is left to national legislation (section 214(1)), although the failure of the legislation to provide adequate payments would presumably be unconstitutional. The national legislation can only be enacted after consulting provincial governments, organized local government and the Financial and Fiscal Commission and recommendations of the Commission, and must take into account a variety of factors listed in section 214(2). (c) Section 227(1)(a) reiterates section 214, providing that "local government and each province is entitled to an equitable share of revenue raised nationally to enable it to provide basic services and exercise the functions allocated to it. " The formulation is more specific than section 214, because it frames the purpose for which equitable funding is granted. A province is entitled to immediate transfer of its immediate share, subject to section 216 (section 227(3)).
The principle is understood to refer to taxes raised by the national government. This understanding is based, firstly, on an interpretation of constitutional principles related to different levels of government in general and, secondly, on the model used in the Interim Constitution which the CP's appear to mirror.
'population and development needs... of each of the provinces' is covered by 214(2)(d) ('the need to ensure that the provinces... are able to provide basic services and exercise the functions allocated to them') and by 214(2)(f) ('developmental and other needs of provinces, local government and municipalities'); and 'administrative responsibilities... of each of the provinces' is covered by 214(2)(d), (f) and (h) ((h) refers to 'obligations of the provinces... in terms of national legislation'). 137. It is submitted therefore that CP XXVI has been complied with. CP XXVII: "A FINANCIAL AND FISCAL COMMISSION, IN WHICH EACH PROVINCE SHALL BE REPRESENTED, SHALL RECOMMEND EQUITABLE FISCAL AND FINANCIAL ALLOCATIONS TO THE PROVINCIAL AND LOCAL GOVERNMENTS FROM REVENUE COLLECTED NATIONALLY, AFTER TAKING INTO ACCOUNT THE NATIONAL INTEREST, ECONOMIC DISPARITIES BETWEEN THE PROVINCES AS WELL AS THE POPULATION AND DEVELOPMENTAL NEEDS, ADMINISTRATIVE RESPONSIBILITIES AND OTHER LEGITIMATE INTERESTS OF EACH OF THE PROVINCES."
Section 221 governs the appointment and tenure of the members of the Financial and Fiscal Commission. The Executive Council of each province is allowed to nominate one person (section 221(1)(b); in addition, there is the requirement that members "have appropriate expertise" (section 221(2). Appointments are made by the President as head of the National Executive.
The Commission's role in determining the equitable division of revenue raised nationally is mentioned in section 214(2), although it is not spelled out in detail. The provision imposes a duty on Parliament to consult the Commission and consider any of its recommendations. Presumably, the precise details are left to the Act of Parliament which spells out the Commission's functions (section 220(3)).
Section 220(3) provides that in performing its functions, the Commission must consider "all relevant factors including those listed in section 214(2)". The list in 214(2) encompasses the factors listed in CP XXVII: (a) Section 214(2)(a) lists the "national interest" as a factor, which is a factor in CP XXVII. (b) Section 214(2)(f) lists "developmental and other needs of provinces, local governments and municipalities", which corresponds to "developmental needs". (c) Section 214(2))(g) lists "economic disparities within and among the provinces", which is a more precise wording of "economic disparities between the provinces" in CP XXVII. (d) A number of different sections correspond to "administrative responsibilities and other legitimate interests of each of the provinces": (i) "the need to ensure that the provinces and municipalities are able to provide basic services and exercise the functions allocated to them" (section 214(2)(d)); (ii) "the fiscal capacity and efficiency of the provinces and municipalities" (section 214(2)(e)); (iii) "obligations of the provinces in terms of national legislation" (section 214(2)(h)); and (iv) "the desirability of stable and predictable allocations of revenue shares" (section 214(2)(i)). CP XXIX: "THE INDEPENDENCE AND IMPARTIALITY OF A PUBLIC SERVICE COMMISSION, A RESERVE BANK, AN AUDITOR-GENERAL AND A PUBLIC PROTECTOR SHALL BE PROVIDED FOR AND SAFEGUARDED BY THE CONSTITUTION IN THE INTERESTS OF THE MAINTENANCE OF EFFECTIVE PUBLIC FINANCE AND ADMINISTRATION AND A HIGH STANDARD OF PROFESSIONAL ETHICS IN THE PUBLIC SERVICE." 142. This principle is complied with.
(a) the grounds of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person's removal from office and adopted by a majority of the members of the Assembly [Section 194(1)].
(a) may suspend a person from office at any time after the start of the proceedings of the said committee of the National Assembly, for the removal of that person; and (b) must remove a person from office upon adoption of the said resolution calling for that person's removal. [Section 194(2)]
(a) a high standard of professional ethics must be promoted and maintained; (b) efficient, economic and effective use of resources must be promoted; (c) services must be provided impartially, fairly, equitably and without bias.
"The Commission is independent and must be impartial and regulated by national legislation. "
"The South African Reserve Bank is the central bank of the Republic and is regulated in terms of an Act of Parliament."
CP XXX: "1. THERE SHALL BE AN EFFICIENT, NON-PARTISAN, CAREER-ORIENTATED PUBLIC SERVICE BROADLY REPRESENTATIVE OF THE SOUTH AFRICAN COMMUNITY, FUNCTIONING ON A BASIS OF FAIRNESS AND WHICH SHALL SERVE ALL MEMBERS OR THE PUBLIC IN AN UNBIASED AND IMPARTIAL MANNER, AND SHALL, IN THE EXERCISE OF ITS POWERS AND IN COMPLIANCE WITH ITS DUTIES, LOYALLY EXECUTE THE LAWFUL POLICIES OF THE GOVERNMENT OF THE DAY IN THE PERFORMANCE OF ITS ADMINISTRATIVE FUNCTIONS. THE STRUCTURES AND FUNCTIONING OF THE PUBLIC SERVICE, AS WELL AS THE TERMS AND CONDITIONS OF SERVICE OF ITS MEMBERS, SHALL BE REGULATED BY LAW. 2. EVERY MEMBER OF THE PUBLIC SERVICE SHALL BE ENTITLED TO A FAIR PENSION."
(a) efficient, economic and effective use of resources must be promoted; (b) services must be provided impartially, fairly, equitably and without bias; (c) good human-resource management and career development practices to maximise human potential, must be developed; (d) public administration must be broadly representative of the South African people with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation.
"The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation. " CP XXXI: "EVERY MEMBER OF THE SECURITY FORCES (POLICE, MILITARY AND INTELLIGENCE), AND THE SECURITY FORCES AS A WHOLE, SHALL BE REQUIRED TO PERFORM THEIR FUNCTIONS AND EXERCISE THEIR POWERS IN THE NATIONAL INTEREST AND SHALL BE PROHIBITED FROM FURTHERING OR PREJUDICING PARTY POLITICAL INTEREST."
(a) the security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution; (b) the security services must be structured and regulated by national legislation; (c) the security services must act, and must teach, and require their members to act in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic; (d) no member of any security service may obey a manifestly illegal order; (e) neither the security services nor any of their members may, in the performance of their functions - (i) prejudice a political party interest that is legitimate in terms of the constitution; (ii) further, in a partisan manner, any interest of a political party; (g) to give effect to the principles of transparency and accountability multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules or orders of Parliament.
The primary object of the defence force is to defend and protect the Republic, its territory, integrity and its people, in accordance with the constitution and the principles of international law regulating the use of force. [Section 200(1)]
(a) the Cabinet Minister in charge of the defence portfolio; (b) the President; and (c) Parliament.
The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and reinforce the law. [Section 205(3)]
(a) At the head is the Cabinet Minister responsible for policing. (b) Under him or her is the National Commissioner who is appointed by the President, and must exercise control over and manage the police service in accordance with national policing policy and the directions of the said Cabinet member. (c) The National Commissioner must appoint a person as provincial commissioner for each province after consulting the provincial executive.
Section 209 provides for the establishment in terms of national legislation of an intelligence service other than an intelligence division of the defence force or the police service.
(a) co-ordination of all intelligence services; and (b) civilian monitoring of the activities of those services by an inspector appointed by the President as head of the national executive, and approved by a resolution adopted by the National Assembly by a vote supported by at least two-thirds of its members. CP XXXII: "THE CONSTITUTION SHALL PROVIDE THAT UNTIL 30 APRIL 1999 THE NATIONAL EXECUTIVE SHALL BE COMPOSED AND SHALL FUNCTION SUBSTANTIALLY IN THE MANNER PROVIDED FOR IN CHAPTER 6 OF THIS CONSTITUTION"
CP XXXIII: "THE CONSTITUTION SHALL PROVIDE THAT, UNLESS PARLIAMENT IS DISSOLVED ON ACCOUNT OF ITS PASSING A VOTE OF NO-CONFIDENCE IN THE CABINET, NO NATIONAL ELECTION SHALL BE HELD BEFORE 30 APRIL 1999. "
No election of the National Assembly may be held before 30 April 1999 unless the Assembly is dissolved in terms of section 50(2) after a motion of no-confidence in the President in terms of section 102(2) of the new Constitution. The presumption against holding a general election can be displaced by a vote of no-confidence in the President, after which the President and any other members of the Cabinet and any Deputy Ministers must resign. Section 50(2) then empowers the Acting President to dissolve the Assembly in the face of a vacancy in the office of the President, but only if the Assembly fails to elect a new President within 30 days.
It may be argued that the failure to include section 102(1) as a permissible ground for dissolving Parliament and holding a national election does not comply with CP XXXIII. However, in response it can be argued that the principle establishes motion of no-confidence in the Cabinet as a necessary, but not a sufficient condition for dissolving Parliament. Since motions of no-confidence in the President are also motions of no-confidence in the Cabinet, CP XXXIII is met. OBJECTIONS
PROVINCIAL POWERS
DP OBJECTION 1: CP XIX CONTRAVENED BY SECTIONS 44(2) TO 76(4)(a), 147(1)(b), 147(2), and 228(2).
DP OBJECTION 2: OMISSION OR NULLIFICATION OF EXCLUSIVE PROVINCIAL EXECUTIVE POWERS
DP OBJECTION 3: PRINCIPLE XVIII(2) - THE POWERS IN THE TEXT ARE SUBSTANTIALLY LESS OR PRIOR TO THOSE IN THE INTERIM CONSTITUTION
_______________________________________________________________________________ * The Pocket Oxford Dictionary defines substantial (at p. 910) as "1. of real importance of value; ... 5 real; existing". The Concise Oxford Dictionary defines substantially as "having substance, actually existing, not illusory." The New Shorter Oxford Dictionary, Vol.2, (at p. 3124) defines substantially as "4. having solid worth or value, of real significance; solid; weighty; important, worthwhile". ** [In S v. Xakana 1966 (1) 733 (0) at 735E-G "substantial financial loss" in section 21(2)(g) of Act 76 of 1962 was held to mean "not slight or nominal". In, R v. de Beer 1959(4) SA 8 1, it was held that "Two residents of substantial means" were not in possession of substantial means even though one of them had four donkeys, a trolley and three cattle and the other had a plough. In De Wet v. Union Government 1933 AD, it was held that £75 was a "substantial" and not a trivial amount for the purposes of an application for leave to appeal. In Duncker v. Paddon & Brock Ltd., 1903 TS at 468/9, it was held that Plaintiff had agreed to accept a "substantially reduced" rent, which, in that case, amounted to a reduction of 50%. In National Trading Co Ltd v. CIR 1943 AD 496 at 505 the issue was whether the preference shareholders are "substantially" interested in the company. It was held that they were indeed substantially interested because their shares represented half of the issued capital of the company. The same issue was dealt with by the court in Searles Ltd v. CIR 1943 OPD 157 at 161, where Fischer JP expressed himself in the following terms: "Now substantial may mean 'predominant' but I am of opinion that its more usual meaning with reference to an interest, and the one here intended, is ‘not illusory' or ‘not nominal’. In other words it has reference to an interest that has some substance in it. In Birch v. Lombard 1949 (3) SA 1093 (SR) at 1099 it was held that "substantial ground" in section 76(3) of the Mental Disorders Act Chapter 141 (SR) is riot the same as "prima facie ground". "The word 'substantial' indicates something somewhat stronger than prima facie". See also: Henri Viljoen (Pty) Ltd v. Awerbuch 1953 (2) SA 151 (0) at 166 in connection with the expression "direct and substantial interest" when dealing with joinders and interventions; Botha v. Ventersdorp Liquor Licensing Board 1956(1) SA 625 (AD) at 635 with regard to the expression "substantial prejudice" in connection with alleged irregularities; Claassens v. Landrost Bloemfontein 1964 (4) SA 4 (0) at 13A-D which considered the meaning of the expression "substantial and peculiar interest in the issue of the inquest" as appears in section 11(2) of Act 58 of 1959 (The Inquest Act). _______________________________________________________________________________
_______________________________________________________________________________ * National Education Policy Bill at para 23. _______________________________________________________________________________
DP OBJECTIONS 3.3. AND 3.4: EXCLUSIVE AND CONCURRENT LEGISLATIVE POWERS OF THE PROVINCES AND THE EXECUTIVE POWERS CONFERRED ON THE PROVINCES, ARE SUBSTANTIALLY LESS OR INFERIOR TO THOSE IN THE INTERIM CONSTITUTION
DP OBJECTION 3.5: THE FINANCIAL AND FISCAL POWERS IN THE TEXT ARE SUBSTANTIALLY INFERIOR TO THOSE IN THE INTERIM CONSTITUTION
DP OBJECTION 3.6: PROVINCIAL COMPETENCE TO ADOPT PROVINCIAL CONSTITUTIONS
203. It is submitted that section 143 of the Text gives the provinces more
scope to write their own constitutions. They are not
bound by the CPs. The
section only makes clearer what was implicit before. Furthermore 143(2)(a) is
more in consonant with CP XXII
read together with CP 1. In view of the paucity
of detail in the objection, we will deal with this issue more fully in
reply. DP OBJECTION 3.7: THE POWERS AND FUNCTIONS OF THE SOUTH AFRICAN POLICE SERVICE 204. For the different provisions in relation to police see Schedule D, page 8, Item 28. It is submitted that insofar as there are differences it will be shown that in fact the powers of the provinces are neither substantially less nor substantially inferior to those in the Interim Constitution which provided in a less than clear manner created dual authority without providing sufficient guidance as to how that authority was to be exercised.
DP OBJECTION 3.8: PUBLIC PROTECTORS, SERVICE COMMISSION
DP OBJECTION 3.9: THE POWERS OF THE NATIONAL COUNCIL OF PROVINCES IN
RELATION TO BILLS APPROPRIATING OR ALLOCATING MONEY OR SHARES
OF NATIONAL
REVENUE TO THE PROVINCES OR DETERMINING THE CONDITIONS FOR PROVINCIAL LOANS FOR
CURRENT CAPITAL EXPENDITURE, BILLS AFFECTING
PROVINCIAL MATTERS, AND BILLS
AMENDING THE CONSTITUTION
DP OBJECTION 3.10: REFERENCES TO THE CONSTITUTIONAL COURT BY MEMBERS OF LEGISLATURE WITH RESPECT TO DISPUTES CONCERNING THE CONSTITUTIONALITY OF BILLS
(a) The power in terms of sections 98(2)(d) and 98(9) of the Interim Constitution to request that a dispute over the constitutionality of a bill be referred to the Constitutional Court, is not a true provincial power. It is one which vests in the members of the legislatures concerned, and not in the legislatures themselves. When one-third of the members of a provincial legislature petition for the referral of a dispute over the constitutionality of a bill, the petition is made by the members concerned, and not by the legislature in which they constitute a minority. (b) On a proper interpretation of sections 98(2)(d) and 98(9) of the Interim Constitution, the members of a provincial legislature do not have the power to request that a dispute about the constitutionality of a bill before the National Parliament. be referred to the Constitutional Court. DP OBJECTION 4.1.: THE TEXT VIOLATES CP XX
DP OBJECTION 4.2.: THE POWER OF THE NATIONAL EXECUTIVE TO ASSUME RESPONSIBILITY FOR A PROVINCIAL EXECUTIVE OBLIGATION VIOLATES CP XI
DP OBJECTION 4.3.: THE TEXT VIOLATES CP XXII
DP OBJECTION 4.4.: THE PROVINCES ARE NOT GUARANTEED AN EQUITABLE SHARE OF REVENUE COLLECTED NATIONALLY IN VIOLATION OF CP XXVI
OBJECTIONS OF THE INKATHA FREEDOM PARTY AND THE NATIONAL PARTY
TRADITIONAL AUTHORITIES CP XIII: 1. THE INSTITUTION, STATUS AND ROLE OF TRADITIONAL LEADERSHIP, ACCORDING TO INDIGENOUS LAW, SHALL BE RECOGNISED AND PROTECTED IN THE CONSTITUTION. INDIGENOUS LAW, LIKE COMMON LAW, SHALL BE RECOGNISED AND APPLIED BY THE COURTS, SUBJECT TO THE FUNDAMENTAL RIGHTS CONTAINED IN THE CONSTITUTION AND TO LEGISLATION DEALING SPECIFICALLY THEREWITH. 2. PROVISIONS IN A PROVINCIAL CONSTITUTION RELATING TO THE INSTITUTION,
ROLE, AUTHORITY AND STATUS OF A TRADITIONAL MONARCH SHALL
BE RECOGNISED AND
PROTECTED IN THE CONSTITUTION.
This aspect of principle XIII(l) is given effect to by a number of provisions
in Chapter 12, which is entitled "Traditional Leaders": (a) Section 21 1(1) recognises the institution, status and role of traditional leadership according to "customary law". (b) Section 211(2) provides that traditional authorities which observe a system of customary law "may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs". (c) Section 212 is a permissive provision which grants jurisdiction to: (i) the national government to "provide for a role for traditional leadership as an institution at local level on matters affecting local communities", to establish "houses of traditional leaders", and to "establish a council of traditional leaders"; and (ii) the provincial government to "provide for the establishment of houses of
traditional leaders". Section 211(3) explicitly provides that "The courts must apply customary law
when that law is applicable, subject to the Constitution
and any legislation
that specifically deals with customary law".
(a) Section 143(1)(b) explicitly permits a provincial constitution
to provide for "the institution, role, authority and status of a traditional
monarch, where applicable". (b) However, section 143(2) qualifies the content of the provisions in s. 143(1)(b) in two respects: (i) the provisions on traditional monarchs must comply with the values of section 1 and the provisions of Chapter 3 (Principles of Co-operative Government); and (ii) the said provisions must not exceed the competence of the provinces.
CP XI "THE DIVERSITY OF LANGUAGE AND CULTURE SHALL BE ACKNOWLEDGED AND PROTECTED, AND CONDITIONS FOR THEIR PROMOTION SHALL BE ENCOURAGED." CPXII "COLLECTIVE RIGHTS OF SELF-DETERMINATION IN FORMING, JOINING AND MAINTAINING ORGANS OF CIVIL SOCIETY, INCLUDING LINGUISTIC, CULTURAL AND RELIGIOUS ASSOCIATIONS, SHALL, ON THE BASIS OF NON-DISCRIMINATION AND FREE ASSOCIATION, BE RECOGNISED AND PROTECTED. CP XXXIV: "1. THIS SCHEDULE AND THE RECOGNITION THEREIN OF THE RIGHT OF THE SOUTH AFRICAN PEOPLE AS A WHOLE TO SELF-DETERMINATION, SHALL NOT BE CONSTRUED AS PRECLUDING, WITHIN THE FRAMEWORK OF THE SAID RIGHT, CONSTITUTIONAL PROVISION FORT A NOTION OF THE RIGHT TO SELF‑DETERMINATION BY ANY COMMUNITY SHARING A COMMON CULTURAL AND LANGUAGE HERITAGE, WHETHER IN A TERRITORIAL ENTITY WITHIN THE REPUBLIC OR IN ANY OTHER RECOGNISED WAY. 2. THE CONSTITUTION MAY GIVE EXPRESSION TO ANY PARTICULAR FORM OF SELF-DETERMINATION PROVIDED THERE IS SUBSTANTIAL PROVEN SUPPORT WITHIN THE COMMUNITY CONCERNED FOR SUCH A FORM OF SELF-DETERMINATION. 3. IF A TERRITORIAL ENTITY REFERRED TO IN PARAGRAPH 1 IS ESTABLISHED IN TERMS OF THIS CONSTITUTION BEFORE THE NEW CONSTITUTIONAL TEXT IS ADOPTED, THE NEW CONSTITUTION SHALL ENTRENCH THE CONSTITUTION OF SUCH TERRITORIAL ENTITY, INCLUDING ITS STRUCTURES, POWERS AND FUNCTIONS."
SCHEDULE B
Clause No: 1 Republic of South Africa Constitutional Principle: I; II; III; IV; V; VI; VIII Clause No: 2 Supremacy of Constitution Constitutional Principle: IV Clause No 3 Citizenship Constitutional Principle: I Clause No: 4 National Anthem Constitutional Principle: Blank Clause No: 5 National Flag Constitutional Principle: Blank Clause No: 6 Languages Constitutional Principle: XI; XII Clause No: 7 Rights Constitutional Principle: Blank Clause No: 8 Application Constitutional Principle: Blank Clause No 9 Equality Constitutional Principle: I; III, V Clause No: 10 Human Dignity Constitutional Principle: Blank Clause No: 11 Life Constitutional Principle: Blank Clause No: 12 Freedom & Security of the Person Constitutional Principle: Blank Chapter 9 : STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL
DEMOCRACY SCHEDULE C
Chapter 12 : TRADITIONAL LEADERS (CP XIII applies to all
provisions in this Chapter) SCHEDULE D COMPARATIVE ANALYSIS OF PROVINCIAL LEGISLATIVE POWERS IN 1993 CONSTITUTION AND THE NEW TEXT
1993 Constitution : 1. Schedule 6 concurrent power, subject to sec.126 overrides. 2. Section 183 (establishment of provincial houses of traditional leaders) New Text : 1. Schedule 4 concurrent power, subject to sec. 146 overrides and Chapter 12 2.Section 212(2) (establishment of houses of traditional
leaders)
1993 Constitution : 1. Schedule 6 concurrent power, subject to sec.126 overrides and section 3 2. Section 3(5) and (8) New Text : Schedule 4 concurrent power, subject to - (b) the extent that section 6 expressly confers legislative competences on
provinces 1. Schedule 6 concurrent power, subject to sec.126 overrides and section 3 2. Various section of Chapter 10 conferring provincial legislative competence, viz - sections : 174(1), (2), (3) 175(1), (6) 177 178(2) 179(1), (2), (3) 180 New Text : 1. Schedule 4 concurrent powers: The following local government matters to the extent set out in section 155(3): - Air pollution - Building regulations - Child care facilities - Electricity and gas reticulation - Fire-fighting services - Local tourism - Municipal airports - Municipal health services - Municipal planning - Municipal public - Municipal public works - Pontoon, ferries, piers and harbours (excluding shipping) - Stormwater management in built-up areas - Trading regulations - Aspects of water and sanitation services 2. Schedule 5 exclusive powers: The following local government matters to the extent set out in section 155(3): - Beaches and amusement facilities - Advertisement in public places - Cemeteries, funeral parlours, crematoria - Cleansing - Control of public nuisance - Control of liquor sales to the public - Accommodation, care and burial of animals - Fencing and fences - Licensing of dogs - Licensing and control of places selling food to the public - Local amenities - Local sports facilities - Markets - Municipal abattoirs - Municipal parks and recreation - Municipal roads - Noise pollution - Pounds - Public places - Refuse removal and dumps - Street trading - Traffic and parking 3. Sections 155(2), 161 and 164 Assessment - Quantitative : Diminishment of provincial powers. Firstly, under the 1993 Constitution provinces could legislate on all local government matters. Under the new Text provinces can only legislate in regard to local government matters contained in the lists Secondly, section 155(3) limits provincial legislative power to - - monitoring the listed matters; - regulating the exercise Diminishment of provincial powers when Chapter 12 of the new Text is compared to Chapter 10 of the 1993 Constitution i.r.o section 155(2), 161 & 164 Assessment - Qualitative : 1. No change as regards first list (concurrent matters), except for the section 155(3) limitations. 2. As regards second list, provincial power upgraded to exclusive 3. In chapter 12 of the new Text all provincial legislation subject to national framework legislation.
New Text : Schedule 5. Local government aspects of markets and pounds exclusive provincial power subject to - sec. 44(2) national intervention; and - sec. 155(3) limitations (a) extent of overrides; and (b) now subject to Independent Broadcasting Authority sec.
192 1993 Constitution : 1. Schedule 6 concurrent power, subject to - sec.126 overrides; and - Chapter 14 2. Section 217(3) and (4) - sec. 146 overrides; and - the extent that Chapter 11 confers legislative competences on
provinces 1993 Constitution : Section 160. Provincial constitutions to be consistent with Constitution, but may provide for - a) legislative and executive structures and procedures different from those "provide for in this Constitution in respect of a province"; and b) the constitution, role, authority and status of a traditional monarch in the province New Text : Sections 142 and 143. Provincial constitutions to be consistent with the Constitution, but may provide for - (a) provincial legislative and executive structures and procedures that differ from those "provided for in this Chapter"; and (b) the institution, role, authority and status of a traditional monarch.
Provincial constitutions must further comply with section
1 and Chapter 3, and
may not confer on provinces powers outside Schedules 4 and 5 or other provisions
of the Constitution 1993 Constitution : 1. Section 156(1) empowers provinces to levy taxes, levies and duties, other than income tax, value-added to sales tax, if authorised thereto in an Act of Parliament. 2. Section 156(1B) confers on provinces the exclusive competences to impose taxes, levies and duties (excluding income tax, value added or sales tax) on - - casinos - gambling, wagering and lotteries; and - betting New Text : 1. Section 228(1)(a) empowers provinces to impose levies or duties, other than income tax, value-added tax, rates on property or customs duties, subject only to regulation by national legislation. 2. Section 228(1)(b) empowers provinces to impose flat-rate surcharges on tax bases of any tax, levies or duties (except corporate income tax, value-added tax, rates on property or custom duties) Assessment - Quantitative : 1. No change, except that rates on property and custom duties now included in list of exclusions 2. Extension of provincial powers in that provinces are now empowered to impose flat-rate surcharges on national tax e.g. income tax. Assessment - Qualitative : 1. Provincial power upgraded in that national legislation can now only "regulate" imposition of taxes by provinces. Previously Act of Parliament had to "authorise". 2. Exclusive provincial power to levy taxes on gambling now downgraded. (not withdrawn)
SCHEDULE E COMPARATIVE ANALYSIS OF PROVINCIAL EXECUTIVE POWERS IN 1993 CONSTITUTION AND THE NEW TEXT
New Text : 1. Old order legislation continues to be implemented by the authorities which administered them before commencement of the above Text Item 2(2)(a) of Schedule (6) 2. Provision for further assignments to provinces in item 14 and 15 of
Schedule 6 SCHEDULE F THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE: CCT 23/96 CERTIFICATION OF THE CONSTITUTION OF SOUTH AFRICA BILL SUPPORTING AFFIDAVIT
HASSEN EBRAHIM
(Signed by:) HASSEN EBRAHIM
Signed by: COMMISSIONER OF OATHS Ahmed S. Mayet Practising Attorney Legal Resources Centre 18 Pritchard Street 4th Floor, Elizabeth House Johannesburg Tel: (011) 836-9831 |