Topic 1: Student notes
PART 1: The making of the Constitution
1 Union Constitution (1910)
35. (1) Parliament may by law prescribe the qualifications which shall be necessary to entitle persons
to vote at the election of members of the House of Assembly, but no such law shall disqualify any
person in the province of the Cape of Good Hope who, under the laws existing in the Colony of the
Cape of Good Hope at the establishment of the Union, is or may become capable of being registered
as a voter from being so registered in the province of the Cape of Good Hope by reason of his race or
colour only, unless the Bill be passed by both Houses of Parliament sitting together, and at the third
reading be agreed to by not less than two-thirds of the total number of members of both Houses. A
Bill so passed at such joint sitting shall be taken to have been duly passed by both Houses of
Parliament.
1.1 Section 35(1) of the Union Constitution
Section 35(1) of the Union Constitution prevented parliament from changing the law in the
Cape of Good Hope regarding voting without a two-third majority vote.
The laws of the Cape of Good Hope allowed anyone to vote, regardless of their race, if they
earned a certain amount of money or owned property of a certain value.
Notes…
1.2 Attempts to prevent people of colour to vote in the Cape of Good Hope
National Party passed Separate Representation of Voters Act
o Did not get two-thirds majority
o Successfully challenged in Harris v Minister of Interior
National Party enacted High Court of Parliament Bill
o Successfully challenged
Increased seats in senate & passed Separate Representation of Voters Act with two-thirds
majority
o Unsuccessfully challenged
New act: A court cannot enquire into or pronounce on the validity of any law passed by
parliament except the languages one
Notes…
2. Freedom Charter (1955)
Notes…
3. Republic of South African Constitution (1961)
59. (1) Parliament shall be the sovereign legislative authority in and over the Republic, and shall have
full power to make laws for the peace, order and good government of the Republic.
(2) No court of law shall be competent to enquire into or to pronounce upon the validity of any Act
passed by Parliament
Notes…
4. Republic of South African Constitution (1983)
Tricameral parliament
A 178-member White House of Assembly
An 85-member (Coloured) House of Representatives
A 45-member (Indian) House of Delegates
Notes…
5. CODESA
a. that South Africa will be a united, democratic, non-racial and non-sexist state in which sovereign
authority is exercised over the whole of its territory;
b. that the Constitution will be the supreme law and that it will be guarded over by an independent,
non-racial and impartial judiciary;
c. that there will be a multi-party democracy with the right to form and join political parties and with
regular elections on the basis of universal adult suffrage on a common voters roll; in general the basic
electoral system shall be that of proportional representation;
d. that there shall be a separation of powers between the legislature, executive and judiciary with
appropriate checks and balances;
e. that the diversity of languages, cultures and religions of the people of South Africa shall be
acknowledged;
f. that all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom
of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal
system that guarantees equality of all before the law.
Notes…
6. MPNF
ANC: Constitution drafted by democratically elected government
NP: Constitution drafted by MPNF, long transitional government
Compromise: two-stage transition
Notes…
7. Interim Constitution
Interim government of unity
Constitutional Assembly
34 Principles
Democracy
Separation of powers
Justiciable human rights
3 levelled government
Recognition and protection of the status, institution and role of traditional leadership
Equality
Notes…
8. Final Constitution
2/3 adoption
Constitutional Court certification
Notes…
PART 2: Constitutional Principles
1. Rule of Law
Everyone is subject to the law (even the government)
Government has no power except those conferred by law (principle of legality) – lawful &
rational
Formal vs substantive Rule of Law
o Formal: disregards content of laws
o Substantive: content of laws must adhere to certain values and rights
Notes…
2. Constitutionalism
Norms that a Constitutional State adheres to: Rule of Law, Separation of Powers,
Democracy, Human rights
SA Constitution:
o Adheres to the principle of constitutional supremacy
o Is value based
Notes…
3. Separation of powers
BRANCHES
• Legislative authority
Notes…
• Executive authority
Notes…
• Judicial authority
Notes…
PURPOSE
• Prevents power to be concentrated in one entity
Notes…
• Specialised branches
Notes…
HOW?
• Division of governmental power
Notes…
• Separation of function
Notes…
• Separation of personnel
Notes…
• Checks and balances
Notes…
4. Democracy
Direct democracy
Notes…
Representative democracy
Notes…
Participatory democracy
Notes…
5. Countermajoritarian dilemma
Notes…
Protects the rights of minorities
Democracy is not simply majority rule
Citizens can participate
Notes…
PART 3: Transformative Constitutionalism
1. Historical Context and Expectations
Notes…
2. Preamble of the Constitution
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.
Notes…
3. Meaning
Notes…
4. Transformative elements of our Constitution
Socio-economic rights
Notes…
Substantive equality
Notes…
Positive duties on the state
Notes…
Horizontal application
Notes…
Participatory democracy
Notes…
Multiculturalism
Notes…
A Culture of justification
Notes…
5. Criticism against transformative constitutionalism
Notes…
PART 4: Customary Law and the Constitution
1. Customary Law in the Constitution
Recognition
211. (1) The institution, status and role of traditional leadership, according to customary law, are
recognised, subject to the Constitution.
(2) A traditional authority that observes 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.
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and
any legislation that specifically deals with customary law.
Notes…
Interpretation of Bill of Rights
39. (1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised
or conferred by common law, customary law or legislation, to the extent that they are consistent
with the Bill.
Notes…
2. Mayelane v Ngwenyama
Facts
Notes…
Issues
[12] The material issues for determination are:
b) Is the consent of a first wife necessary for the validity of her husband’s subsequent
customary marriage? This entails considering—
(i) whether the Recognition Act directly prescribes the first wife’s consent as a
requirement for validity; and
(ii) whether living Xitsonga custom makes such a prescription.
c) If neither the express provisions of the Recognition Act nor Xitsonga customary law
creates this requirement, does the Constitution require the law to be developed?
Notes…
Recognition of Customary Marriages Act
[32] Importantly, however, the Recognition Act does not purport to be – and should not be
seen as – directly dealing with all necessary aspects of customary marriage. The Recognition
Act expressly left certain rules and requirements to be determined by customary law, such
as the validity requirements referred to in section 3(1)(b). This ensures that customary law
will be able to retain its living nature and that communities will be able to develop their
rules and norms in the light of changing circumstances and the overarching values of the
Constitution.
[38] It can therefore safely be concluded that the express requirements for validity
stipulated in section 3 of the Recognition Act do not directly prescribe the first wife’s
consent to a subsequent marriage.
Notes…
Xitsonga Customary Law
[54] The affidavits filed by the parties represent four categories:
evidence from individuals in polygynous marriages under Xitsonga customary law;
evidence from an advisor to traditional leaders
evidence from various traditional leaders; and
expert testimony, drawing conclusions from available primary material
[70] There is no doubt that the exercise to determine the content of Xitsonga customary law
has shown that it displays a generous spirit that is rooted in accommodating the concerns of
the first wife and her family when the husband seeks to enter into another marriage. But it
remains his choice to marry again.
Notes…
Section 39(2) of the Constitution
[71] Are the first wife’s rights to equality and human dignity compatible with allowing her
husband to marry another woman without her consent? We think not.
Notes…