Constitutions in transition
Constitutions in transition

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Constitutions in transition

2 The Constitution of the Republic of South Africa

Described image
Figure 2 South Africa

The preamble of the Constitution of the Republic of South Africa reads:

We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to –
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

In this section, you will be introduced to elements of the Constitution, see how they shape political and legal institutions in South Africa, and explore how its tumultuous history has indelibly shaped the Constitution and country.

Activity 2 Apartheid

Timing: You should allow yourself 15 minutes to do this activity.

The Constitution of the Republic of South Africa is a result of the country’s history; principally, the apartheid ideology and regime that operated in the country for most of the latter half of the twentieth century. This activity offers you a chance to demonstrate your own understanding of what is meant by apartheid. Write a few sentences in the box below summarising what you know of the apartheid regime and consider why you think the Constitution is a significant example worth studying in constitutional law.

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Comment

The following video (The Open University, 1998) will give you some insight into the horror of the apartheid regime and impetus for change in South Africa.

Download this video clip.Video player: w203_2015j_vid008-640x480.mp4
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Transcript

NARRATOR:
Man is born free. And everywhere, he's in chains. He who believes himself the master of others does not escape being more of a slave than they. How did this change take place? I have no idea. What can render it legitimate? I believe I can answer that question.
DEREK MATRAVERS:
Philosophy is about argument and if an argument is a good argument, then it doesn't matter where and when we apply it. Now in 1994, South Africa had its first multiracial election, and there were enormous changes in that country with the end of apartheid. So if you're looking at the validity of Rousseau's arguments and about how they apply to people's right to govern themselves, then it shouldn't really matter whether we study them in 18th century France or in Capetown in South Africa.

[MUSIC PLAYING]

Rousseau believed that the existence of oppressive governments twists and distorts the characters of the oppressed and oppressors alike. His work provided slogans for the French revolutionaries. And its influence can be heard in the rallying calls of the Freedom Charter, written by a coalition of anti-government groups in South Africa in the 1950s.
NARRATOR:
South Africa belongs to all who live in it, black and white. And no government can justly claim authority unless it is based on the will of the people.
DR ANTHONY HOLIDAY:
The previous government, the apartheid regime, had no legitimacy, in my eyes. Neither did it enjoy legitimacy in the eyes of any responsible member of the world community. Apartheid was adjudged to be a crime against humanity. But far more than that, the way in which apartheid was enforced invaded every area of public and private life.
PETER SEPUMA:
When you end up in a situation of destruction, you end up with nothing in hand. But this very thing that hadn't built around, the very things that have been said to be mine are actually not mine, because the country's not mine. I don't have a vote in this country. So whether I have them or not makes no difference. That is where the destruction [INAUDIBLE]. If the whole country has to go up in flames, so what? It's not my country. It's not my country.
But if I had a boat, if I knew that everything that is here on this land is mine, too, I have the right to it, then I'd worry about the destruction.
DEREK MATRAVERS:
Although too simple to be the whole explanation, Rousseau's view that corrupt societies deform people's relations with each other was clearly illustrated in South Africa. It became difficult for moral voices to be heard.
DESMOND TUTU:
Men and women was shown on television being burned to death, you know that it was shown right around the world. And the world is filled with people who support us, people who want us to be free. But if we use methods such as the ones that we saw in Duduza, then, my friends, I am going to collect my family and leave a country that I love very deeply, a country that I love passionately.
DEREK MATRAVERS:
I want to look for echoes of Rousseau in the evolving relationship between individuals and society in South Africa. To do this, we have to understand something of the country's politics. So what was wrong with the previous government?
PRAVIN GORDHAN:
Being a government of the country, it was acquired in terms of the norms of democracy to be representative of all the people of the country. We had that government only being represented of 20% less of the population of the country.
Secondly, therefore, it was never elected by all the people of this country. He didn't enjoy the confidence of all the people of this country. It didn't address itself to the needs of all the people of this country. And therefore, it actually over the years applied itself to the concerns of that 20% minority and largely ignored, neglected and oppressed the 80% majority.
DEREK MATRAVERS:
That certainly fits Rousseau's conception of a corrupt society. People were made to obey the government's will, but had no chance of making that will their own. What difference did this make to the people who had to live with the arrangement?
PROF. ANDRE DU TOIT:
I think that question is related to the difference between being subjects and being citizens. And that is, of course, a longstanding, theoretical, philosophical question.
But in the South African case, I think we've had a very real historical experience of what that means, in that for the majority of South Africans, even if parliament, parliamentary institutions was first introduced almost 150 years ago, that during all that time, they had no part of it. They could not vote. They were excluded from that. But they were subject to the laws, the racially discriminatory oppressive laws, which was enacted in the name of the government. So for the majority of South Africa's people, that meant that they were subjects. They were not citizens.
DEREK MATRAVERS:
Rousseau believed that if people organise themselves to live together properly, this would bring about a change in their character and attitude.
End transcript
 
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The Constitution formed and enacted in the 1990s had to take impetus from the legitimised violence of apartheid that plagued the country for nearly half a century. For this reason, it is a significant and exemplary constitution to study as its object was to oversee transition from violence and segregation to non-violence and integration; it is a constitution that marks the origins of a completely new political and legal regime.

Chapter 1 of the Constitution contains the founding provisions of the nation and the Constitution. Section 1 of the Constitution states that:

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 voter’s roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

These four values may be taken as self-evident but they highlight a shift in the supreme law of South Africa towards democracy and egalitarianism (a political ideology that demands equality of social, economic and political rights for all people).

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