This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
A Body of Law
The constitution is the product of a process of political negotiation and compromise whose aim was to draft a founding document the provisions of which had been established by consensus. Within this framework it had also to conform to 34 specific principles established as part of the political settlement signed in the early hours of November 18 1993 and which gave rise to the democratic elections of April 27 1994. Moreover, the Constitutional Court had to certify that it did indeed comply with those principles.
The constitution was signed into law on December 10 1996 as the Constitution of South Africa Act 108 of 1996 and came into effect on February 4 1997. It is the supreme law in South Africa. Parliament and all other governing bodies are subordinate to it and no other law can contradict any of its provisions.
The constitution consists of a preamble that acknowledges the injustices of the past and dedicates the nation to building a democratic and open society, followed by 14 chapters containing 244 clauses and seven schedules. The following pages provide a precis of the constitution's provisions.
CHAPTER 1: FOUNDING PROVISIONS
Section 1: The most important clause in the constitution, and which requires special parliamentary majorities before it can be changed, reads:
"The Republic of South Africa is one sovereign democratic state founded on the following values:
(a). Human dignity, the achievement of equality and the advancement of human rights and freedoms;
(b). Non-racialism and non-sexism;
(c). Supremacy of the constitution and the rule of law;
(d). Universal adult suffrage, a national common voters' roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness."
As its title suggests, this chapter's sections are bedrock clauses which set the tone for the rest of the constitution. Section 2 gives the constitution legal supremacy; all legislation, including common law and customary law, must be tested against it. Section 3 states that all citizens are equally entitled to the rights and benefits of citizenship, and equally subject to the duties and responsibilities this implies.
Eleven official languages are listed: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa, and isi-Zulu. National and provincial governments must use at least two official languages for their business. However, the state must take positive steps to advance the use of all the official languages.
To this end a Pan South African Language Board will be established which will also promote the Khoi, Nama, and San languages, and sign language. In addition it has to encourage respect for a number of languages used by other communities including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu, Urdu, Arabic, Hebrew, and Sanskrit.
CHAPTER 2: BILL OF RIGHTS
Although this is not the longest chapter in the constitution it created more public debate than all the others put together. It is a crucial part of the constitution as it protects all individuals from abuse of power by the state.
It also, says Sandy Liebenberg, a technical adviser to those negotiators who worked on this chapter, "reflects the fundamental values of our society. It protects individuals against government violations of their rights and establishes government's duties towards the people."
The bill of rights has 33 sections. Some are as pithy as Section 11: Everyone has the right to life. Others have a string of sub-clauses: Section 35, for example, dealing with the rights of an arrested person, has 40.
Section 7: Rights. The bill of rights is identified as a "cornerstone of democracy" and this clause sets out what the nature of the government's duties are in relation to the rights detailed in the bill of rights.
Section 8: Application. The opening clause binds all systems of law, including common, customary or religious law, as well as organs of state to the bill of rights. (This is an advance on, for example, Zimbabwe's constitution, where African customary law may not be tested against the constitutional right to equality.) The second clause binds individuals and "juristic persons"-companies, for example-to respect the provisions of the bill of rights.
"These provisions extend the reach of the bill of rights not only to the relationship between individuals and the state, but also to the relationship between individuals and groups of civil society," says Liebenberg. "A private club that discriminates against women, or persons on the grounds of their race or religion, may be challenged under the equality clause in the bill of rights. This is what constitutional lawyers refer to as the 'horizontal application' of the bill of rights."
Section 9: Equality. "Everyone is equal before the law and has the right to equal protection and benefit of the law". This means, says Liebenberg, that the law cannot discriminate unfairly against individuals or groups in society either in the protection it gives or the benefits it extends, for example, in allocating social security benefits.
"The equality clause promotes a substantive vision of equality in which everyone is entitled to the full and equal enjoyment of 'all rights and freedoms'. It also specifically mandates affirmative action programmes to protect and advance disadvantaged groups in society," she says.
But the bill of rights does not only advocate equality, it also promotes it. The second clause in this section stipulates that affirmative action programmes can be initiated to achieve equal status among citizens.
According to this section neither the state nor a person may "unfairly discriminate directly or indirectly" against anyone on the basis of "race, gender [what Liebenberg calls the 'social roles given to the sexes'], sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth." However, to give concrete effect to the guarantee of equality, parliament must enact anti-discrimination legislation within three years of the constitution taking effect.
Section 10: Human dignity. "Everyone has inherent dignity and the right to have their dignity respected and protected."
This is an important right, in fact the first founding value, and is also mentioned as a vital consideration in the limitations clause.
Section 11: Life. "Everyone has the right to life."
Section 12: Freedom and security of the person.
The freedoms and rights dealt with here mean that no one can be detained arbitrarily, held with-out trial, tortured or treated in a degrading way. There is also an important sub-clause, won by women's rights groups, which entrenches the right to "be free from all forms of violence from either public or private sources". This sub-clause didn't appear in the interim constitution, nor did the second clause in this section.
This latter states: "Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent." This echoes commitments given by government to the UN Conference on Women in respect of the Beijing Declaration and Platform for Action.
Section 13: Slavery, servitude and forced labour.
"No one may be subjected to slavery, servitude or forced labour."
Section 14: Privacy. This is upheld in respect of bodily or home searches, rules against the seizure of possessions, and protects personal communications.
Section 15: Freedom of religion, belief and opinion. This clause remains mostly unchanged from the interim constitution except that it specifically permits legislation recognising religious marriages as well as marriages concluded under particular traditions. It also allows parliament to acknowledge systems of religious and traditional personal and family law-as long as the specific provisions recognised are consistent with the bill of rights. Comments Liebenberg: "This clause allows for the important role and value of South Africa's diverse cultures and religions but ensures that culture or religion are not used as a pretext for violating people's constitutional rights."
Section 16: Freedom of expression. The first clause protects freedom of expression in the press, in the communication of ideas, artistic creativity and academic freedom. The second clause limits these rights in the case of war propaganda, incitement to violence and hate speech.
"Hate speech" cannot claim constitutional protection. Those who argued for this clause during the constitution-making process cited South Africa's history of racial discrimination and degradation to support the inclusion of these specific exceptions to the general right to freedom of speech. This clause accords with South Africa's commitments under international human rights law, particularly when it ratifies the International Covenant on Civil and Political Rights (1966) and the International Convention on the Elimination of all Forms of Racial Discrimination (1966).
Section 17: Assembly, demonstration, picket and petition. Though the right to demonstrate peace-fully and unarmed was included in the interim constitution, the right to picket was added to the final constitution.
Section 18: Freedom of association: "Everyone has the right to freedom of association."
Section 19: Political rights. This clause deals with the right to free political choice and the right to vote. Unlike the sections thus far which give rights to "everyone", political rights are conferred only on South African citizens. A provision that was not included in the interim constitution is the right to "free, fair and regular elections".
Section 20: Citizenship. "No citizen may be deprived of citizenship."
Section 21: Freedom of movement and residence. Like the previous section, this too is steeped in history and gives everyone the right to enter and leave the country, and citizens the right to a passport. Under the interim constitution the right to a passport was not specifically mentioned.
Section 22: Freedom of trade, occupation and profession. This right is restricted to citizens. The practice of a trade, occupation or profession may be regulated by law.
Section 23: Labour relations. Under this clause workers can form trade unions, and employers their own organisations. Collective bargaining rights are given to both bodies and employers. This was a highly contentious section because business felt that if labour had the right to strike, then employers should have the right to lock workers out. However this provision is not included.
Section 24: Environment. This is a stronger section than that in the interim constitution. Apart from protecting people from an unhealthy environment, it also places a specific duty on the state to take reasonable steps to protect the environment, including the prevention of pollution, the promotion of conservation and securing ecologically sustainable development.
Section 25: Property. This long section and its nine sub-clauses deal with: the right not to be deprived of property; instances under which expropriation can take place; how compensation will be worked out; and the need for the state to make resources available so that citizens have access to land. It also seeks to redress past injustices where people or communities were dispossessed of land.
Section 26: Housing. This section and the next pertain to socio-economic rights, and are entirely new. "With these clauses", says Liebenberg, "we now have a much more whole-hearted embracing of socio-economic rights. Although they were controversial during the constitution-writing process, by including them we are acknowledging important rights recognised in the Universal Declaration of Human Rights (1948) and a number of other human rights treaties. Once again this shows that the constitution isn't simply a 'negative' document designed to protect rights but that it speaks to people who are poor and disadvantaged and without access to basic human needs.
"In terms of this section and the subsequent section concerning health-care, food, water and social security, the state is obliged to take all reasonable measures to improve people's access to these rights. It also guarantees that no one may be evicted from their home or have their home demolished arbitrarily or without a court order."
Section 27: Health care, food, water and social security. The right of access to these basic requirements is entrenched here along with an obligation on the state to take reasonable measures to make them accessible to all.
Section 28: Children. This special protection for children follows international precedent. The version that appeared in the interim constitution has been expanded to give children the right to shelter. The detention of children can now be only a "measure of last resort" and the conditions under which children may be detained are stated. Children also have the right to legal representation at state expense in civil proceedings "if substantial injustice would otherwise result", and may not be used in armed conflict.
Section 29: Education. The first sub-clause gives a right to basic education, including adult basic education. The second sub-clause says everyone has a right to education in the official language of their choice where "reasonably practicable". This sub-clause also obliges the state to consider all reasonable educational alternatives to give effect to this right.
Section 30: Language and culture. All people have the right to use their own language and to participate in the cultural life of their choice, provided they do not violate the rights of others-for example, women's rights to equality and dignity.
Section 31: Cultural, religious and linguistic communities. This new clause recognises cultural diversity and acknowledges the international trend towards honouring cultural rights. It is similar to a provision in the International Covenant on Civil Rights.
Section 32: Access to information. This clause works "vertically", giving everyone the right to information held by the state, and applies "horizontally" to information held by a private person that is needed for the protection of any rights. The principle of transparent government is established in this section although there is no absolute right to information.
Section 33: Just administrative action. Not commonly a feature of constitutions, this provision protects citizens from the kind of administrative abuse that was common under apartheid.
Section 34: Access to courts. Under the terms of this section, everyone has the right to have a dispute settled by a fair public hearing before a court or other form of impartial tribunal.
Section 35: Arrested, detained and accused persons. This long section sets out an arrested person's right to remain silent, to be brought to court within 48 hours, to legal representation, to humane treatment in prison, and to a fair trial. It also states that evidence obtained in a way that violates any rights in the bill of rights is inadmissible if it would lead to an unfair trial or be detrimental to the interests of justice.
Section 36: Limitations of rights. Although this is a short section it is one of the most important clauses when the Constitutional Court has to weigh whether a limitation to an individual's rights is acceptable in the interests of society. It allows for the limitation of all the rights provided this is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
"In no way does this render the bill of rights meaningless," says Liebenberg. "It is basic and simple and, it is hoped, will also guide parliament when legislation is considered."
Section 37: States of emergency. This long section sets out the conditions under which a state of emergency can be declared and limits it to 21 days unless the National Assembly decides to extend it.
If this happens a number of rules apply, for example the emergency may not be extended for more than three months at a time. It also specifies people's rights under a state of emergency-those rights which can be curtailed and those which can't-and also deals with the basic rights of a person detained under a state of emergency. It is an important clause because it sets limits on what may be done (and not done) during natural or man-made disasters when the ordinary law is inadequate for the circumstances. However, the Constitutional Court has the ultimate power to test the validity of the declaration of a state of emergency and any action taken under it, including any curtailment of the bill of rights.
Section 38: Enforcement of rights. Anyone may approach a court if they feel a right has been infringed or is threatened.
Section 39: Interpretation of bill of rights. This provides guidance to the Constitutional Court in interpreting the bill of rights. It stresses the values that underlie a democratic society and the need for the court to interpret legislation with consideration for international and foreign law. In other words it encourages our courts to consider jurisprudence from a variety of other countries with a tradition of respect for human rights.
CHAPTER 3: CO-OPERATIVE GOVERNMENT
Briefly but succinctly, this chapter lays down the principles of co-operative government which are also reflected in the chapters dealing with the various spheres of government.
This stress on co-operative government, which outlines the relationship between the different tiers of government, is regarded as one of the foundations of the constitution.
Government in South Africa operates on three levels-national, provincial and local-which are regarded as "distinctive, interdependent and interrelated".
"This chapter is much more important than it appears," comments Professor Fink Haysom, legal adviser to the president. "It may appear like a motherhood and apple-pie chapter that merely asks every level of government to be decent, co-operative and not to encroach on other levels of government's jurisdiction. In fact the chapter is a lot more than a list of aspirational goals.
"In Germany, for instance, a similar set of principles intended to capture the essence of their system of federal comity and co-operation has been developed and concretely applied by the German constitutional court.
"In South Africa we have already seen that the Constitutional Court has taken this chapter most seriously. In their September 6 1996 judgment on the first draft of the final constitution they noted that the IFP had objected to this section on the basis that, at worst, it interfered with provincial autonomy and allowed the national government the right to compel provinces to act co-operatively. Counsel for the IFP contended that, at best, it was not possible to make the lion lie down with the provincial lamb and thus that this chapter served little purpose. The Constitutional Court, however, accepted that, on the contrary, requiring the lion to lie down with the lamb had uncertain advantages for the lion but was of clear benefit to the lamb."
This chapter also stipulates that every effort should be made to settle intergovernmental disputes by negotiation and mediation before resorting to the courts. Given the overlaps in the areas where the various spheres of government have competencies (these are listed in Schedules 4 and 5) the potential for conflict is ever-present.
The 19th century approach, says Haysom, to the "allocation of whole functional areas of powers to regional government, was to allocate areas of responsibility to one particular level of government only." That model is no longer acceptable. Haysom cites education as an example. Here there are potentially four levels deserving of a say: the community of parents and teachers that governs the school; the municipality responsible for servicing the school; the province concerned with the equitable siting of schools and the payment of teachers; and the nation in respect of educational standards. In some cases, even a fifth level of regulatory interest exists, that of supra-national bodies such as the Southern African Development Community or the European Union.
Haysom considers South Africa something of a pioneer in breaking away from the old model. "It is difficult to regulate an aspect of government service comprehensively at one level only," he says. "What this constitution does is give the different areas of government the right to legislate on the same topic or area but only in respect of their appropriate responsibilities. Responsibility, in turn, is decided relative to appropriate interest, capacity and effective delivery but the apportionment of it is more complex than merely isolating an area of social life and parcelling it out to a single sphere of government.
"This more flexible approach puts consider-able emphasis on how you work out which level's laws apply: for example, what aspects of a service area the different levels should be primarily responsible for. Over time the areas of overlap will sort themselves out. This schema was originally introduced under the interim constitution so we have already begun the process of resolving which level is responsible for a particular aspect of a shared competency."
CHAPTER 4: PARLIAMENT
Parliament is regarded as the supreme body. Even in a presidential system such as South Africa's, the assembly of the representatives of the people is placed higher than the leader of the country. With the era of presidential autocracy still fresh in the mind of the body politic it is significant that this chapter precedes that on the president and the National Executive.
Parliament consists of a National Assembly and a National Council of Provinces (the latter replaces the Senate).
The National Assembly is made up of no fewer than 350 and no more than 400 people elected for five years. MPs have to be qualified to vote for the National Assembly, must not be paid state employees, must be financially solvent, and of sound mind. Those who have been sentenced to 12 months imprisonment in any country, without the option of a fine, are disqualified from holding office but become eligible again five years after the sentence has been completed. MPs have freedom of speech privileges within the Assembly subject to the Assembly's rules and orders.
Members of the National Assembly must elect a speaker and a deputy speaker and institute management procedures to facilitate the proceedings of the Assembly. The National Assembly may amend the constitution and initiate legislation or consider, pass, amend or reject any legislation submitted to it. Unless the constitution states otherwise, a majority of the members must be present to vote on a bill, and a simple majority of those present would pass it into law.
In the public interest, Section 59 was strengthened when the constitution was amended during September and October 1996. It specifically states that parliament has to conduct its business "in an open manner" so that the public can attend its sittings and committee meetings. Such references to the need to keep the legislative process open to the public are scattered through-out the constitution.
One of the most innovative aspects of the new parliament is the National Council of Provinces. To Haysom this is a major change that replaces a body which brought little value to the legislative process with a "body of people from the provinces who will bring diverse provincial circumstances and perspective to the debates. This will enrich the law-making process and hence the quality of the law. The Senate has largely operated as a weak chamber of review that was, in composition and voting patterns, a mirror of the National Assembly. Intended to be composed of provincial representatives, it failed to perform this role as the representatives were not required to obtain their mandates from the provinces. The members were in any event subject to instructions from party parliamentary caucuses dominated by National Assembly members."
The National Council is made up of 10-member delegations from each province. They have the power to consider, pass, amend or reject legislation and can initiate legislation where it has a bearing on provincial governance. Except where the constitution says otherwise, each province has one vote and to pass a bill at least five provinces must support it.
"Undoubtedly", says Haysom, "the National Council is going to bring a provincial perspective to our legislation. The provincial delegation is required to obtain its instructions from the provincial legislature. This means that on every issue the various delegations must get a mandate from the provinces.
"For example, when a national law is introduced on, say, educational matters-which is also an issue on which the provinces have concurrent powers-the provinces can, through the Council of Provinces, reject the bill or reshape it. But whatever they do, it means they are bringing a provincial perspective to the debate. This is important because of the diverse circumstances of each province as well as the fact that it is the provinces which will be largely responsible for implementing the legislation.
"This means that if a national political party wants to obtain the National Council of Provinces' support on a particular issue, it must lobby for this support from the provinces. So the National Council mechanism allows for a significant empowerment not only of the provinces but also of the provincial components of the parties.
"The importance of the National Council of Provinces, however, is not simply confined to the fact that provincial legislatures will have influence on the national legislative process. It is a two-way process of integration. Provincial legislatures, instead of being parochial bodies, will now have the benefit of considering the views, the priorities and the problems facing the nation and the other provinces. It is for this reason that the National Council of Provinces symbolises co-operative governance and a means of integrating the provinces into the body politic."
The legislative process now allows for bills to be introduced in either the National Assembly or the National Council of Provinces but these bills must be passed by both bodies. Special provisions have been made to amend the constitution. The most rigorous applies to Section 1-which defines the country's founding principles-and this rule itself. An amendment requires the support of 75% of the members of the National Assembly, and at least six of the nine delegations in the National Council of Provinces. Changes to the bill of rights or any other part of the constitution require the support of two-thirds of the members of the National Assembly and at least six provincial delegations in the National Council. Successful amendments must then be referred to the president for assent. The president's assent, however, is not automatic. He can refer a bill back to parliament or to the Constitutional Court if the disputed issues cannot be resolved.
Ordinary bills that don't affect the provinces must be supported by a simple majority in the National Assembly and are then referred to the National Council where each delegate has a vote and support is also determined by a simple majority. If the National Council passes the bill it is referred to the president for assent. If the council rejects or amends it, the bill returns to the National Assembly where it can be passed with or without the amendment.
In the case of bills that affect provinces, the same procedure applies except that the National Assembly cannot override the National Council. Should a deadlock arise between the two chambers the matter must be referred to a mediation committee.
This mediation committee is what Haysom calls a "bridging mechanism", because it leads to a negotiated settlement. "It's not an original formulation," he says, "but it certainly is a better way of dealing with issues than going through the courts which can only rule in favour of one party and against another."
CHAPTER 5: THE PRESIDENT AND NATIONAL EXECUTIVE
The president is both head of state and head of the national executive (which some critics claim is an uncomfortable arrangement as it does not allow the incumbent to rise above party politics). The president must be elected at the first sitting of the National Assembly after its election, and serves a term of five years. No president may serve more than two terms. To impeach the president, the National Assembly needs the support of at least two-thirds of its members and can do so only if the president has seriously violated the constitution or the law, behaved badly, or is unable to perform his duties.
The presidential powers include: signing bills passed by parliament; referring bills back or to the Constitutional Court; summoning parliament to extraordinary sittings; making appointments that the constitution or other law requires; appointing commissions of inquiry; appointing and receiving diplomatic representatives; pardoning offenders; conferring honours.
As the executive authority is vested in the president that person appoints a deputy president and the ministers who will form the cabinet. While cabinet ministers are responsible for the powers and functions assigned to them by the president, they are accountable to parliament and must provide "full and regular" reports about matters under their control.
The cabinet is responsible for implementing national legislation; developing and implementing national policy; co-ordinating the functions of state departments, and preparing and initiating legislation. It also has the power to intervene in provincial administration if a province doesn't fulfil its obligations in terms of legislation or the constitution.
A motion of no confidence in the cabinet can be passed by a majority in the National Assembly and the president must then reconstitute the cabinet. If the National Assembly passes a motion of no confidence in the president, then the president and the cabinet must resign.
CHAPTER 6: PROVINCES
South Africa has nine provinces: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern Province, North West, and Western Cape.
This chapter provides for each province to have its own legislature of between 30 and 80 members voted into office for a term of five years. At its first sitting the provincial legislature must elect a premier who is responsible for appointing 5–10 members to an Executive Council. The executive authority rests with them: they have the power, for example, to implement provincial and national legislation, and develop provincial policy.
Such issues as the conditions under which the legislature operates (especially the need to keep the process open to the public); the rules for membership; its powers (bills, except money bills, can be initiated and voted on provided there is a majority of members present), and the need to create internal management are in this section.
In addition provinces may draw'up their own constitutions provided these do not conflict with the national constitution. They must be certified by the Constitutional Court. In the event of conflict between national and provincial legislation, the authority of national legislation prevails but a number of steps are prescribed to enable disputes to be settled.
To bolster co-operative governance, Section 139 gives a province the power to supervise the running of a municipal council if that municipality is flailing. However there are a number of provisions limiting such intervention to ensure that the council is not rendered impotent.
CHAPTER 7: LOCAL GOVERNMENT
This chapter, originally found wanting in the constitution's first pass through the Constitutional Court, describes the status, powers, functions and composition of municipalities. It is, however, an uncontroversial description of what constitutes local government. Once again emphasis is given to the need for both national and provincial government to support the ability of municipalities to manage their affairs.
CHAPTER 8: COURTS AND ADMINISTRATION OF JUSTICE
The courts of the judicial system are: the Constitutional Court, the Supreme Court of Appeal, High Courts, and Magistrates Courts.
The Constitutional Court consists of a president, a deputy president and nine other judges. It is the highest court in all constitutional matters and only this court can settle constitutional disputes arising between the provinces or decide on the constitutionality of a national or provincial bill.
The Supreme Court of Appeal consists of a chief justice, a deputy chief justice and a number of judges yet to be determined by legislation. Its responsibilities cover any matter except constitutional issues.
This chapter also provides for a Judicial Service Commission (JSC) made up of the chief justice, the Constitutional Court president, one judge president, the minister of justice, two practising advocates, two practising attorneys, one legal academic, six National Assembly members, four members of the National Council of the Provinces, and four people designated by the president. If the matter concerns a province, its premier may also sit on the JSC.
The JSC is responsible for preparing a list of nominees to various judicial positions. Thus the president must consult with the JSC in appointing the president and deputy president of the Constitutional Court, and the chief justice and deputy chief justice.
The terms of office for judges vary: a Constitutional Court judge is appointed for a non-renewable term of 12 years but must retire at 70; other judges hold office until a retirement date set by legislation. Judges can be removed from office on the recommendation of the JSC or the National Assembly.
CHAPTER 9: STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
Six institutions have been created to strengthen constitutional democracy. They are: the Public Protector; the Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor-General; the Electoral Commission.
These bodies are autonomous and other state departments are expressly charged with assisting and protecting them to ensure their "independence, impartiality, dignity and effectiveness". The six institutions are accountable to the National Assembly and must report on their activities and performance at least once a year.
People appointed to these posts must be South African citizens and, in the case of the Auditor-General, must have specialised financial knowledge. The make-up of the commissions must broadly reflect the country's race and gender composition. These people are appointed by the president on the recommendation of the National Assembly. Both the Public Protector and the Auditor-General must be sanctioned by at least 60% of the members of the National Assembly while appointments to a commission need the support of a majority in the Assembly.
Grounds of misconduct, incapacity or incompetence must be established to remove these people from office. In the case of the Public Protector and the Auditor-General, at least two-thirds ofthe National Assembly would have to support a dismissal. Members of a commission can be dismissed by a majority vote of the Assembly.
CHAPTER 10: PUBLIC ADMINISTRATION
This expresses the values and principles (efficiency, transparency, impartiality, moral rectitude) that must govern the public service, and also allows for the operation of an independent Public Service Commission. Essentially this 14-member commission has the power to monitor and give direction to the public service. It is accountable to the National Assembly and must report on its activities and findings at least once a year. People in the public service must undertake to "loyally execute the lawful policies of the government" and their political persuasions can neither be held against them nor gain them favour.
CHAPTER 11: SECURITY SERVICES
The first principle governing national security declares that South Africans resolve "as individuals and as a nation to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life."
This chapter goes on to stipulate that there can be only one defence force, a single police service, and intelligence services. The president, as commander-in-chief of the Defence Force, must appoint a military command and, for the police, a national commissioner. These services, along with the intelligence services, are responsible to designated cabinet ministers.
Among the general rules regulating the security services are two which place the moral responsibility of any action on to the individual. Section 199 (5) has it that all members of the security services must be taught to act in accordance with the constitution and the law; and-Section 199 (6)-that "a manifestly illegal order" may be disobeyed.
"As you can imagine," says Haysom, "these clauses met with some opposition from the security force hierarchy. However, they are actually modelled on clauses in the German constitution and we were told that they have not presented undue problems there."
CHAPTER 12: TRADITIONAL LEADERS
This chapter recognises the role and status of traditional leadership according to customary law. It allows for traditional authorities to function within the framework of the country's legal system and states that the courts must apply customary law when it is applicable, subject to the constitution and any legislation that deals with customary law. Until April 30 1999 traditional leaders have been granted an ex officio role in local government.
CHAPTER 13: FINANCE
This is a technical chapter dealing with matters like the Financial and Fiscal Commission (appointed to consider financial legislative proposals), the Central Bank, and the annual budget (in all spheres of government). Here again, emphasis is given to the need for "transparency, accountability and the effective financial management of the economy." Provinces and local authorities are to be funded out of national revenues, but the provinces can also impose certain taxes and levies, and municipalities can charge rates on property and fees for services.
CHAPTER 14: GENERAL PROVISIONS
This chapter deals with such issues as international agreements, which become binding once they have been signed into law by parliament, and customary international law which is regarded as law in South Africa unless it flouts the constitution or an act of parliament. In addition attention is given, among other matters, to the funding of political parties; the adoption of charters of rights consistent with the constitution; the repeal of laws and the transitional arrangements. If inconsistencies arise from the translation of the constitution into the 11 languages, the English version is regarded as authoritative.
THE SCHEDULES
Seven schedules are appended to the constitution. The first five deal with the national flag (Schedule 1); the oaths of office (Schedule 2); election procedures (Schedule 3); areas of government where the national and provincial legislatures have powers (Schedule 4); and areas where a province and a municipality have separate and overlapping powers (Schedule 5).
Schedule 6 is a long chapter with four annexures. It is devoted to an extensive list of transitional arrangements dealing with such issues as the continuation of existing law, a restriction on a general election until April 30 1999, the functioning of the courts once the new constitution is adopted, national unity and reconciliation, and the implementation of the bill of rights where, for example, it is stated that, in order to prohibit unfair discrimination, national legislation must be passed within three years of the constitution being enacted. Schedule 7 lists the Constitution Act of 1993 and its various amendments, which are repealed by the enactment of the new constitution.
A matter of life and death
Dear Sirs
I do not see the good of inviting our views, suggestions or inputs if the Constitutional Court will not heed them. I am still strong about reimposition of the death penalty and I have the backing of the majority of South Africans. Your preachings of Human Rights should go together with the Scriptures: Exodus 21:12.
I am sure you are aware of the increased crime and violence since the announcement of the abolition of the death penalty. The majority of the society feel the government is letting them down and thus, want to take the law into their hands. Surely you do not want that situation.
If the Constitutional Court has a final word regardless of the facts of most of the South Africans, is that not iron hand or dictatorship and how different is that from Sani Abacha's rule?
Why is the Constitutional Court prepared to have other issues discussed but not this? Your declaration of the right to live seems to refer to the perpetrator meaning that the victim's life is priceless. But the actual fact is that the killer has given up the right to his own life.
If you say this is democracy, then surely the word democracy has lost its meaning.
Yours faithfully
(SGD) HUMPHREY MATI
Live and let love
RE: Equality - Chapter 2, Article 8:3
Thank you for including the clause for sexual orientation in the draft document for the New Constitution. I would like to plead that you include it in the final document too.
Never before were our group - that is the Gay and Lesbian people of South Africa - taken into consideration. We were discriminated against and even beaten up for no reason. Some of my friends were fired from work when the oppressors found out what their sexual orientation were even though there were no complaints about their work.
Since the draft document for the New Constitution was announced things have started to change for us. More of us could come out in the open without the fear of being oppressed. We can live a normal life and love our partners without being persecuted. Is that not what we want, to live in peace, love and harmony with our loved ones with no discrimination whatsoever?
We want to love, get married legally, raise our children and be accepted in all walks of life. We have rights because we are human beings.
We have to stand together and join in the struggle for equal rights! Thank you
Miss M van Greuning
In defence of the family
Dear Sir
In my view, this is how the Constitution should look like:
Maintenance: If a husband fails to cater for his wife and children, and the woman resorts to the Maintenance courts, she should be allowed to get all his salary, on a monthly basis. When he is due for an increment, it should also be given to his wife. The husband should be left with only enough money for transport. I say this because these men refuse to give their wives money. Instead, they start businesses for their mistresses and make them rich. When they are rich, they forget the men and tell them that they are stupid. The wife and children experience difficulties as though there was never a husband in the home ...
This is a very painful matter because, when you were married, you, the wife, had high hopes that, out of the four or so children with whom you have been blessed, you were going to produce a doctor, a judge, a magistrate and an accountant. However, due to the fact that the woman is the only breadwinner, while the husband is involved with his stupid affairs, this does not happen. Your meagre salary is just enough for food and for the payment of services ...
Sir! We are sick and tired of these randy men who are not even afraid of AIDS ... I propose that polygamy should be prohibited by law. When a man chooses a woman as his life-partner, and vows in front of a marriage officer that "till death do us part", the law must ensure that this happens ...
Thank you
Joyce Khanye
In search of a seperate freedom
Dear Sir
PROPOSALS ON SELF-DETERMINATION AND A VOLKSTAAT
I wish to point out that Afrikaners are an indigenous white nation of South Africa, similar to other nations who are also part of South Africa. Therefore everyone has a right to land and a right to realise their language, culture, objectives, religion, etcetera.
Principle No 34 of the constitution also stipulates the right to self-determination of all nations in South Africa.
The Afrikaner nation therefore has a right to self-determination, namely territorial self-determination in a Volkstaat and cultural self-determination outside the Volkstaat.
A. Cultural Self-determination
In areas with sufficient support for Afrikaner self-determination but where it is impossible to be part of a Volkstaat, Afrikaner councils should be introduced to look after the language, culture and education of the Afrikaner. Registration to become a member of Afrikaner councils should be voluntary.
B. Territorial Self-determination: Volkstaat
Enough land should be available for the Volkstaat to be viable. The majority should be Afrikaners. Parts of the former Boere Republics should be the core of the Volkstaat, namely Transvaal and Free State; after all, these were recognised territories and republics belonging to Afrikaners.
The Volkstaat should have its own parliament elected by Volkstaat Burghers. The Volkstaat should be able to take decisions on its language, culture, education, religion, security forces and other general matters.
The Central Government should not interfere with the Volkstaat.
The Volkstaat should therefore have more power than ordinary provincial authorities.
Provision should be made for secessions if necessary.
C. Volkstaat Council Reports
The Volkstaat Council's first reports should be studied meticulously; They include many positive points which should enjoy serious consideration.
Reports cover inter alia where the Volkstaat should be situated, what it should look like, its citizenship, economy, relations with the rest of South Africa and of course cultural self-determination.
Negotiations between the Vryheidsfront (Freedom Front) and the ANC and what is arising therefrom should be taken into account.
D. Conclusion
A Volkstaat should offer the Afrikaner cultural and territorial self-determination. This is part of South Africa's solution without which Afrikaners and the rest of South Africa's population will only deteriorate. Self-determination will result in freedom, peace and success.
Thanking you,
FRIK LOTZ - ordinary member of the Vryheidsfront
Protect the farm people
Sir/Madam
I am at the moment residing on a farm Diepdrift (Warmbaths). I was born and brought up on this farm where my father worked for so many years as a labourer. We stayed on this farm for +- 60 years.
I am impressed by chapter 2 of the bill of rights, i.e. Housing and land. 26 (2) No one may be evicted from their home arbitrarily and without an order of court made after considering the relevant circumstances.
I am very much concerned about people staying on the farms. May the constitution (final) please protect the farm people. They have been harassed by white people for so many years and they are still harassed. I think this is because of the fact that they are taken as illiterate, non striking, non demonstration as compared to people staying in urban places (location).
My father is 81 years of age and he has hearing disability and sight (blind) disability and because of (maybe) transformation he is asked to leave the farm. We are living in fear under intimidations and so on.
Included find a letter from the farm owner whom my father worked for until he was a pensioner. In the New Constitution my first glance will go to the clause that has something to say about farm workers/labourers, what is their right etc.
Thank you very much for the wonderful job that you are doing. May God bless you and the people of South Africa as a whole.
Yours faithfully
(SGD) SS MAJAPHOLO
"I'm part of the future"
The Secretariat
I am a sixteen year old in standard eight at Wynberg Boys High School. I wish to express my view on the subject of abortion on demand.
I am totally against abortion. I feel abortion is going to bring a kind of curse on the land. Every life has a right to live. I have spoken to many people in my school and many are against abortion on demand.
I hope you can listen to me, for I am a part of the future of this country.
Yours faithfully
J Plows