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CONSTITUTIONAL LAW - FAQ's             Back to home page

 

The Constitution of the Republic of South Africa, 1996 came into effect on 18 December 1996. The Constitution can override any law that parliament makes if the law goes against the constitution. No law can go against the constitution, whether it is a customary law or a law that parliament makes. The South African Constitution of 1996 is a document that consists of 14 chapters. It says how the government should run the country and it has a Bill of Rights that protects the human rights of all citizens. You can read constitutional court judgements at www.constitutionalcourt.org.za.  Another useful source of information and education about the Constitutional Court, it’s decisions and it’s judges can be found at www.ConCourtBlog.com

  1. Is the Constitution the highest law of the land?
  2. How can the Constitution be changed or amended?
  3. What is meant by the ‘separation of powers’?
  4. What are the different spheres of Government?
  5. What is contained in the Bill of Rights?
  6. Section 9: The right to Equality – what does this mean?
  7. Section 10: Right to dignity and Section 11: Right to life – what does this mean?
  8. Section 12: Right of freedom and security of the persons – what does this mean?
  9. Section 13: Slavery and Section 14: Right to privacy – what does this mean?
  10. Section 15: Freedom of religion, belief and opinion and Section 16: Freedom of expression– what does this mean?
  11. Section 17: Freedom of assembly, Section 18: Freedom of Association and Section 19: Political rights – what do these mean?
  12. Sections 20, 21 and 22: citizenship, Freedom of movement and residence, and freedom of trade, profession and occupation – what do these mean?
  13. Section 23: Labour Relations – what do these mean?
  14. Section 25: Property rights – what do these mean?
  15. Section 26: Right to access to housing – what does this mean?
  16. What is the nature and purpose of the Section 9 institutions created by Parliament to protect the Constitution?
  17. How have ‘constitutions’ developed in South Africa?
  18. What is meant by the Rule of Law?

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 1. Is the Constitution the highest law in the land?

 

The Constitution is a law passed by Parliament and is the highest law of the land, and all other laws must follow it. Other laws are divided into statutes, common law and customary law.  The Constitution 17th amendment entrenches the Constitutional Court as the highest court of the land confirming it as the apex court. The Act also rewrites Section 167 of the Constitution to state that the Constitutional Court has jurisdiction in all constitutional matters ‘and any other matter in which it may grant leave to appeal’. 

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

Our Constitution helps against the abuse of power by: 

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

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2. How can the Constitution be changed or amended?

 

The Constitution is more difficulty to change than any other laws. Parliament can change a written law (statute) if more than 50% of the members of Parliament vote to change it.

Section 74 of the Constitution says that if Parliament wants to change the constitution then:

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

Section 1 of the Constitution says that South Africa is one sovereign, democratic state founded on values of human dignity, equality, human rights and freedoms. It also says that the Constitution is supreme and that there must be regular, free and fair elections where everyone can vote.

If Parliament wants to change Section 1 or Section 74, then

  • At least three quarters (75%) of the members of Parliament must vote to change it, and
  • At least 6 Provinces in the National Council of Provinces must vote to change it     

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3. What is meant by the separation of powers?

 

The separation of powers means the government’s functions and power is split into 3 branches. These branches each perform a separate function and are independent of each other. The purpose of this is that they keep check on each other. The separation of powers is an important part of democracy because it prevents any elected official or government body from abusing their powers. The 3 branches are:

The Legislature

  • The National Legislature is called Parliament which makes new laws and changes old laws for the whole country. Parliament is made up of the National Assembly and the Council of Provinces. Each Province also has a legislature called a Provincial Legislature which makes laws for each province. The legislatures at national or provincial level are elected by people in  national and provincial elections every 5 years

The Executive

  • The national executive is made up of the President, the vice-president and the cabinet. The national executive is responsible for carrying out the laws .The cabinet is made up of ministers, with each minister governing a department with public officers doing the administration.  The ministers cannot make their own laws although they can draft new laws and ask parliament to pass these. Ministers must make sure that the policies of the government are implemented. Parliament can also ask ministers to explain why they carrying out policy in a particular way. In this way the executive is accountable to the legislature. Each province also has its executive. The Provincial executives are made up of a Premier and an Executive Council.

The Judiciary

  • The judiciary is made up of Magistrates and judges They make decisions in court cases based on the laws.  These decisions then help to explain what the law means in actual circumstances. In this way, the court checks the laws that the legislature makes. They also make sure that they do not go against the Constitution. The Constitutional Court has the power to say that a law is invalid if it goes against the Constitution.
  • People can take cases to court if they believe the actions of the executive go against the law or the constitution. In this way, the court acts as a check on the work of the executive.
  • The judiciary must be independent of the executive and the legislature. In this way it can make decisions that are fair, even if this goes against what the legislature and executive want.   

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4. What are the different spheres of government?

 

The Government in South Africa is divided into 3 spheres: national, provincial and local. The three spheres are autonomous, but in terms of Section 3 of the Constitution they have to work together and coordinate things such as budgets, policies and activities, particularly those that cut across all the spheres.

  • National Parliament makes and carries out laws which affect the whole country. These are issues like economic policy, defence and relationship with other countries. National Parliament makes laws called Acts which the whole country has to follow.
  • There are some issues that both national and provincial government can make and carry out laws about. Section 4 of the Constitution lists these issues, such as health, welfare and education. However, national government is responsible for setting national standards on these issues, so laws written by provinces must follow national standard-setting legislation.
  • Provincial Governments deals with things that affect the local area that they control. Part B of Schedules 4 and 5 of the Constitution lists the issues that provincial government is responsible for. Provincial legislatures make their own laws called ordinances. People in each province have to follow the laws for that province. The provinces can draw up their own constitutions, but these constitutions cannot go against the National Constitution.
  • Local Government deals with things that affect the local area that they control .Part B of Schedules 4 and 5 of the Constitution says what things local government is responsible for. This includes collecting rubbish, parking electricity and parks. Laws written by local governments are called  by-laws. They have to be followed by people in that area.      

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 5. What is contained in the Bill of Rights?

 

Chapter 2 of the Constitution contains the human rights that will be protected in South Africa. Section 7 says that the government must respect, protect, promote and fulfil the rights in the Bill of Rights, and that the Bill of Rights applies to all laws and must be followed by all branches of government and all government bodies.

Vertical and Horizontal application of the Bill of Rights

  • The Bill of Rights applies to all matters between citizens and government. This means it applies in a vertical way between government and citizens. It protects citizens from things done to them by the government.
  • The Bill of Rights also works in a horizontal way. This means it applies to matters between ordinary people and businesses, but only if this makes sense. It protects people from things being done to them by other people.
  • Here are the human rights as enshrined in the Bill of Rights – they will be discussed in more detail in subsequent questions:
  • The Right to Equality.(Section 9)
  • The Right to human dignity.(Section 10)
  • The Right to life (Section 11)
  • Freedom and Security of the Person (Section 12)
  • Slavery, servitude and forced labour (Section 13)
  • The right to privacy (Section 14)
  • The freedom of religion, belief and opinion (Section 15)
  • Freedom of speech and expression (Section 16)
  • The freedom of assembly, demonstration, picket and petition (Section 17),
  • Freedom of Association (Section 18),
  • Political Rights (Section 19)
  • Citizenship (Section 21),
  • Freedom of movement and residence (Section 21),
  • Freedom of occupation, trade and profession (Section 22)
  • The right to fair labour practises (Section 23)
  • Environment (Section 24)
  • Property(Section 25)
  • Right of access to housing (Section 26)
  • Rights of access to health care, food, water and social security (Section 27)  
  • Children’s Rights (Section 28)
  • Education Rights (Section  29)
  • Language and culture (Section 30)
  • Cultural, religious and  linguistic communities (Section 31)
  • Access to Information (Section 32)
  • Just administrative actions (Section 33)
  • Access to the courts (Section 34)
  • Rights of arrested, detained and accused persons (Section 35)
  • Limitation on rights (Section 36) the rights in the Bill of Rights can be limited if this is reasonable and justifiable in an open and democratic society that is based on human dignity equality and freedom.
  • States of emergency (Section 37)

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 6. Section 9 – The right to Equality – what does this mean?

 

  • Being equal before the law means all laws may not unfairly discriminate unfairly against anyone. Everyone is entitled to equal rights and freedoms. The right to ‘equal protection before the law’ means people have a right to the same opportunities and have equal access to resources, which would allow them to be equal in the future.
  • The Government must take active steps to change the inequalities of the past that promote the achievement of equality, called ‘affirmative action’ and is allowed by Section 8 of the Constitution.
  • The Employment Equity Act puts the right to equality into practise in the workplace, and makes it compulsory for employees who have more than 50 employees to introduce affirmative action measures to fix past discriminatory practises.
  • Neither the state nor any person can unlawfully discriminate against someone, either directly or indirectly. It is against the law to discriminate against anyone on any of the following grounds:
    • Race and colour
    • Sexual orientation: being gay, lesbian or heterosexual
    • Marital status: being single, married or divorced.
    • Gender
    • Pregnancy
    • Age
    • Disability
    • Ethnic origin
    • Culture
    • Language
    • Religion, conscience or belief.

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  7.Section 10 (Right to human dignity) and Section 11 (Right to life)-what does this mean?

 

  • Section 10 – Right to human dignity – everyone has dignity and the right to have their dignity respected and protected.
  • Section 11 – Right to Life – means that everyone has the right to life.
  • Regarding the use of deadly force by police officers, the courts have held that a person making an arrest is not entitled to use a firearm in the process unless:
    • The suspect is threatening to harm the person arresting him or someone else, or
    • The suspect is suspecting of having committed a serious crime involving or threatening harm to a person.
  • The Constitutional Court has held that the provisions relating to the use of ‘deadly force’ for arrests were too wide and therefore unconstitutional. For example, using ‘deadly force’ in the case of someone caught shoplifting would not be justifiable.
  • The Constitutional Court has held that the death penalty goes against a person’s right to life so our courts are not allowed to pass the death sentence against anyone.
  • Regarding abortion, Parliament has passed a law called The Choice on Termination of Pregnancy Act allowing women the choice to terminate the pregnancy up to a certain stage of the pregnancy (see also our question under Personal Injury Law for more details.

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 8. Section 12 – The Right of Freedom and security of the person – what does this mean?

 

 The Right of Freedom and security of the person includes the following rights: 

  • Not to be put in prison for a good reason
  • Not to be detained without trial
  • To be free from all kinds of violence in public and private areas.
  • Not be treated or punished in a cruel or inhuman or degrading way
  • To make decisions about reproduction (having children)
  • To have control over our own bodies
  • Not to be forced to have medical or scientific experiments done on people
  • Corporal punishment, the whippings or beatings for punishment – the Constitutional Court has held that punishing people and children by whipping them or giving them a caning goes against this right.

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 9.  Section 13: Slavery, servitude and forced labour and Section 14 – Right to Privacy – what does this mean?

 

Section 13 of the Constitution forbids any form of slavery or forced labour.

Section 14 – the Right to Privacy,  means that everyone has the right to privacy including the right not to:

  • Be body-searched without a court order
  • Have your home searched without a court order
  • Have your things taken from you
  • Have your letters opened or your telephones tapped.

The Interception and Monitoring Prohibition Amendment Act prevents people’s conversations being intercepted, and any interception must be authorized by a judge. 

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10. Section 15: Freedom of religion, belief and opinion and Section 16: Freedom of speech and expression – what does this mean? 

 

  • Section 15 – Freedom of religion belief and opinion means that everyone has the right to believe or think what they want, even if their opinion is different to the government. Everyone has the right to practise the religion they choose.
  • Government institutions, like schools, can follow religious practises (like having prayers in the morning) but this must be done fairly and people cannot be forced to attend the
  • A person can also get married under the laws of their religion. But these cannot go against the Bill of Rights – for example, a woman who marries under customary law does not loose her rights of equality when she gets married.
  • Chapter 16 – Freedom of Expression – means everyone has the right to say what they want including the press and other media, although certain kinds of speech are not protected, and these are:
  • Propaganda for war
  • Inciting (encouraging) people to use violence
  • Hate speech
  • Hate speech spreading hatred and encouraging people to act harmfully or violently to other people because of their race, gender, ethnic origin or religion. . 

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11. Section 17: Freedom of Assembly, Section 18: Freedom of Association and Section 19: Political Rights – what do these mean?

 

Section 17 – Freedom of Assembly - Everyone has the right to associate with other people, hold a demonstration, picket or present petitions. They must do this in a peaceful way and not carry weapons.

  • The Regulations of Gatherings Act says organisers of a demonstration must give authorities at least 7 days notice. The organisers must give the names, purpose of the event, the place of the gathering or the route of the march and the number of people expected to take part. The police can disperse a crowd, using reasonable force if they believe there is danger to people or property.

Section 18 – Freedom of Association means that you have the right to associate yourself with whomever you want, for example workers joining together and meeting in a trade union.

Section 19 – Political Rights – everyone has the right and is free to make political choices, such as the right to:

  • Form a political party
  • Join any political party
  • Encourage other people to join a political party
  • Campaign for a political party or cause

Every adult has the right to free and fair elections. They have the right to:

  • Vote in these elections
  • Vote in secret in elections
  • Stand for election    

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 12. Section 20: Citizenship, Section 21 Freedom of movement and residence, Section 22 Freedom of Trade and Occupation – what do these mean?

 

 Section 20 – Citizenship

Your citizenship is protected and cannot be taken away from you

Section 21 – Freedom of movement and residence

Everyone has the right to:

  • Move anywhere in South Africa
  • Leave South Africa if they choose

Every citizen has the right to:

  • Enter South Africa and stay there
  • Live anywhere in South Africa
  • Have a passport.

Section 22 – Freedom of Trade, Occupation and Profession

Every citizen has the right to choose their occupation or trade freely. Laws can be regulated how people practise their trade, occupation or profession. 

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13. Section 23 – Labour Law Rights – what do these mean?

 

Everyone has the right to fair labour practice.

 Workers have the right to:

  • Form and join trade unions
  • Join in the activities and programme of the trade unions
  • Strike

Employers have the right to:

  • Form and join employers’ organisations
  • Join in the activities and programmes of the employers’ organisation

Trade unions and employers organisations have the right to:

  • Make decisions about their own administration, programmes and activities.
  • Organise
  • Form and join a federation
  • Engage in collective bargaining

The right to strike and lock-out

  • The right for workers to strike is written in the Constitution.
  • The right for employers to lock-out their workers is not in the Constitution. But, this does not mean that employers do not have the right to lock-out. The Labour Relations Act says that employers have a right to lock-out in certain circumstances.  

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14. Section 25 – Property Rights – what do these mean?

 

No one can have property taken away from them unless this is done according to a law.

Expropiating Private Property – this can be done if:

  • The government wants to use the land for public purposes
  • It is in the public’s interest, for example, the government needs the land for its land reform programme.

The amount of compensation may be determined by:

  • The history of how the property was acquired and what it was used for before
  • How much the owner has improved the property
  • What the property is currently being used for
  • The market value of the property
  • What the government can afford to pay
  • What the government wants to do with the property.

Labour Tenants, people who had been living on land they could not own because of apartheid laws, will now be able to own this land or be paid compensation for it. The Extension of Security of Tenancy Act (ESTA) gives labour tenants certain rights in terms of Section 25. Also see our section on Landlord and Tenant

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 15. Section 26: Right to Access to Housing – what does this mean?

 

Everyone has the right to have access to adequate housing. The government must take reasonable steps within its available resources to provide people with housing and access to land.

Limitations on this tight

Section 26 says the government must take steps within its available resources. In a Constitutional Court case, Irene Grootboom took the government to court on the grounds that Section 26 of the Constitution says people have a right to have access to housing. The Court stated that there are 3 parts that make up the government’s obligation to provide housing.

These are:

  • What are reasonable steps that a government should take
  • What steps should government take to steadily implement this right over time
  • What resources are available to make this possible

The Court ordered Government to take positive steps to meet its obligation in terms of Section 26(2) of the Constitution, particularly where people are living in inhumane conditions or crisis situations. Irene Grootboom passed away in her shack recently, her dream unfulfilled.     

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16. What is the nature and purpose of the Chapter 9 institutions created by the constitution?

 

Chapter 9 institutions are there to protect our human rights contained in the Bill of Rights. The protection mechanisms are also called the ‘state institutions supporting Constitutional democracy’ in the Constitution. Chapter 9 of the Constitution creates 7 institutions for protecting peoples’ rights and for making sure the government does its work properly. The institutions are:

Other institutions that also protect people’s rights are:

People can also take cases about human rights abuses to the Magistrate’s Courts and High Courts, but for this you would require the services of an attorney to help you prepare the case and represent you in court. The protection mechanisms on the other hand are free, and people can send in their claim to be investigated.  

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 17. How have ‘constitutions’ developed in South Africa?

 

Between 1910 and 1994 there have been four Constitutions in South Africa:

  • In 1910 Britain decided to withdraw from the government of South Africa and handed the country over to the white residents of South Africa. The first Constitution for the Union of South Africa was adopted in 1910. This gave rights to the white minority but took away the right to vote from the majority of South Africans.
  • In 1960 the white government held a referendum to decide whether South Africa would become a Republic. On 31 May 1961 South Africa was declared a Republic and the government adopted the second constitution.
  • In 1983 the government passed the third Constitution which created the tricameral parliament. This constitution excluded black people and automatically made them citizens of the homeland they were born.
  • In 1994, twenty-six parties negotiated and adopted an interim Constitution, which gave the vote to everyone. This Constitution lasted for 2 years. During that time the elected government worked as a constituent assembly and had to draw up the final constitution. On 8 May 1996 it was adopted by the Constitutional Assembly. The final Constitution was passed by Parliament and became law on 18 December 1996.  

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 18. What is meant by the Rule of Law ?

 

The Rule of Law is a concept that means that all actions and decisions need to be made in accordance with law. It is one of the measures that attempts to ensure that decisions cannot be taken at the variable will of the people in charge – i.e. the leaders of the nation. This would be “the rule of men” and is the exact occurrence that the Rule of Law is designed to prevent.

Following the rules and laws set out in the Constitution and in legislation ensures stability and equality before the law within the country and under this system the citizens are protected from the arbitrary exercise of power.

Under the Rule of Law all persons, institutions, public and private entities, are accountable to the laws that have been made by the state. The government is as bound by the Rule of Law as any other and is therefore totally accountable for the action it takes.

Nobody is exempt from the Rule of Law.

The concept of the Rule of Law includes a number of principles which need to be respected in order for such rule to function properly. The important principles include the following:

  • Law is supreme
  • Everybody is equal before the law
  • Law is applied in a fair way
  • Separation of powers
  • Accountability under the law
  • Avoiding arbitrariness
  • Legal certainty
  • Transparency in legal proceedings and law making


The points below highlight a few basic facts about the law and the application thereof.

  1. The law is a body of rules, set by the state to regulate conduct and punish wrongdoings.
  2. National law is superior to all other laws except the Constitution, which is the supreme law of the land.
  3. The Constitution is the highest-ranking piece of legislation and therefore every other law and/or court ruling must illustrate cognizance of and respect for the principles laid out in the Constitution. Failure to be consistent with the Constitution is invalid; laws and conduct that are inconsistent can be struck down on application to the courts.
  4. The law is binding on everyone in the same way and also binds the President and highest level of government officials.
  5. It must be applied equally to all citizens regardless of their status, must be non-discriminatory, must observe human rights and must ensure the dignity of every human being.
  6. The state is obliged to respect, protect, promote and fulfill the rights contained in the Bill of Rights, in the application of the law.

The presence of the Rule of Law however does not necessarily mean that a country has reached the highest degree of justice and there need to be instruments that help to maintain this system of governance.

Citizens need to be aware of their rights and obligations in order to assist in the maintenance of the Rule of Law and need to know what they can expect from the system. Society needs to be aware of the fact that only a breach of the law can lead to punishment, and not the mere will of the authorities in charge. As human beings, on whom the system eventually relies, are not infallible it is of utmost importance that every citizen know his/her rights and duties within the entire system of the rule of law, in order to be able to both uphold it, as well as detect malfunctions and demand changes.

The World Justice Project, which is a non-profit organization committed to the advancement of the Rule of Law around the world, refers to a rules-based system in which the following universal principles are upheld:

  • ‘The government, its officials and agents are accountable under the law.
  • The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
  • The process by which the laws are enacted, administered and enforced is accessible, fair and efficient
  • Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient number, have adequate resources, and reflect the make-up of the communities they serve.1

 

The World Justice Project (WPJ)

For those who wish to learn more about the WJP it is recommended that a visit be made to www.worldjusticeproject.org

The WJP has a Rule of Law Index which is quantitative assessment tool designed by the World Justice Project to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. There are nine factors, further broken down into 52 sub-categories that provide a comprehensive picture of Rule of Law compliance.

The nine factors are:

  1. Limited Government Powers
  2. Absence of Corruption
  3. Order and Security
  4. Fundamental Rights
  5. Open Government
  6. Effective Regulatory Enforcement
  7. Effective Civil Justice
  8. Effective Criminal Justice
  9. Informal Justice

 

1. en.wikipedia.org/wiki/Rule_of_law 

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