Constitutions in transition
Constitutions in transition

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Constitutions in transition

2.5 The Rolls-Royce of constitutions

The Constitution of the Republic of South Africa does not enjoy its unofficial and widely held status as the Rolls-Royce of constitutions simply because it speaks to the social and historical specificity of the country in its Bill of Rights. The Constitution enacts a break from the apartheid regime throughout; the practicalities of the Constitution are designed precisely with this in mind.

Ubuntu was explicitly left out of the final Constitution of the Republic of South Africa, enacted in 1996 and effected in 1997, but the legacy of the TRC and the judgments of the Constitutional Court ensured that the Constitution was affected by such a philosophy in its express commitment to social justice. The Constitutional Court has made it clear in recent judgments (e.g. Mayelane v Ngwenyama [2013] ZACC 14) that ubuntu is, thus, compatible with the Constitution’s requirement to apply customary law when it is applicable (s211(3)) and is integral to the commitment to restorative justice measures (Himonga et al., 2013, p. 374).

Activity 5 Constitutional principles

Timing: You should allow yourself 35 minutes to do this activity.

The Constitutional Assembly, tasked with drafting and passing into law the permanent Constitution, was the same composition as the Parliament. The Assembly sat as a joint sitting of both the National Assembly and the Senate. They were tasked with writing a constitution that abided by the 34 principles laid out in Schedule 4 of the Interim Constitution.

You can access the constitutional principles presented in the Interim Constitution through the Constitutional Court of South Africa [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] website. Take a quick look through some of the principles and sketch your thoughts on what some of the most significant of these are that were taken forward by the Constitutional Assembly when writing the Constitution.

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These principles, numerous and sometimes fairly detailed, acted as a manual for the Constitutional Assembly when they embarked on writing the Constitution. You will probably be most attuned to the commitment to: racial equality, the protection and inclusion of minority groups, languages and cultures in the legal and political process, and the right to self-determination.

Also included are commitments to:

  • the openness, responsibility and accountability of all organs of the state
  • the separation of powers
  • democratic representation at each level of government
  • the recognition that regional and local governments need sufficient institutional development and protection from encroachment by the national government
  • the definition of fiscal powers and functions of each level of government
  • the equitable sharing of nationally collected revenue at each level of government.

Each of these principles has in mind the iniquity and imbalanced governance that characterised apartheid South Africa and, as such, the Constitution is a document that manages and oversees the continuing transition of South Africa from an apartheid country to a post-apartheid country.

In this section, the elements of the Constitution, including the role of the Constitutional Court and the composition of the South African Parliament, have been explored. More importantly, perhaps, the impetus behind the Constitution has been explained. The Constitution of the Republic of South Africa is a fine example of a constitution being enacted in response to a pressing social need.

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