Favour Emeruh 29959314 Intro to Con Law and Stat Int.
Tutorial 3
Question 1
The formation of the Constitution of the Republic of Southa Africa, 1996
(“Constitution”)1; formally began with constitutional negotiations kickstarted by the
formation of CODESA, which was a convention that brought together the 19 political
originisations in South Africa at the time. CODESA was formed as a compromise
because of the stalemate between the weakened National Party and the publically
endorsed resistance groups, such as the ANC and PAC. 2 The MPNP replaced
CODESA due to stalled negotiations.3 There were disagreements between both sides
about what a democratic South Africa should look like. The NP wanted the constitution
to be drafted by the unelected MPNP whilst the ANC advocated for the formation of a
constitution by a democratically elected body. 4 The compromise was a two-stage
transition where an Interim Constitution of the Republic of South Africa, Act 200 of 1993
(“Interim Constitution”)5 would be put into place before the first democratic election,
consisting of a coalition government made up of the ANC and NP and would be in effect
for only 5 years, ending in 1995.6 In the second stage, a constitutional assembly which
consisted of democratically elected members of parliament wound draft the final version
of the constitution which we know today.7
Question 2
1
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996 1996 4 SA 744 (CC) (“First Certification Judgment”) 18.
2
20.
3
18.
4
First Certification Judgment 18; 66.
5
Our Constitution “Testing the Constitution in court” (12-11-2020) Our Constitution
[Link]
the-constitution-in-court/ (accessed 12-04-2026).
6
De Vos et al Constitutional Law 26.
7
P Langa “Transformative constitutionalism” (2006) 17 Stell LR 351 3.
This is because the court is a purely judicial entity, not political, thus they have no
authority to dictate such matters.8 Their function is highlighted in IC 71(2), which is to
ensure that the entirety of the new draft of the constitution complied with the established
Constitutional Principles (“CP”).9 This function is meant to be carried out regardless of
the interest or concerns of any party.10 It is also to maintain the principle of separation
of powers provided for in the Constitutional Principles. 11 Political matters are the
business of the democratically elected Constitutional Assembly and cannot and should
not be commented on by the Constitutional Court, this separation allows for
independence, properly dispersed control and a system of checks and balance. 12 At the
time the Constitutional Court was very new and still attempting to establish its own
legitimacy whilst upholding that of the Constitution itself, aligning with a political party or
engaging with the political process at all would undermine this.13
Question 3
The Constitution is transformative because it aims to right the injustices of the past that
left many people to suffer and prioritised separateness over unity. The constitution is
founded on the value of human dignity for all and prioritises equality, non-racialism, non-
sexism and aims to move South Africa to become a more egalitarian society. 14 This is
seen by the provisions for Constitutional Supremacy and an entrenched and justiciable
bill of rights.15 The Constitution recognizes the importance of democracy, traditional
leadership, customary law amongst other transformative features that bring change in
South Africa.16 The South African Constitution is unlike other constitutions that seek to
maintain the Status quo as it has a mandate for Change. 17 In “Transformative
8
20.
9
The Constitution of the Republic of South Africa, 1996
10
P de Vos & W Freedman (eds) South African Constitutional Law in Context 2 ed (2021) 18.
11
60.
12
Interim Constitution of the Republic of South Africa, Act 200 of 1993 (“Interim Constitution”).
13
140.
14
71.
15
De Vos et al Constitutional Law 26.
16
De Vos et al Constitutional Law 20.
17
19.
Constitutionalism” Chief Justice Pius Langa emphasises how the constitution acts as a
bridge between the injustices of the past, which we move from to a substantially better
and just society.18
Question 4
The reason for the Constitutional Court not signing off on the New Text (“NT”) 19 is that it
did not comply with a number of the Constitutional Principles. Firstly, the National
Assembly had too much power to undermine the independence of state institutions such
as the Attorney General and Public Protector, and the functions of the Public Service
Commission were not properly specified making the court unable to determine if their
independence was being undermined.20 Another issue was that the NT was unable to
provide the proper “framework of structures” and operational power required for local
government to act as a distinct sphere of government. 21 This is a result of the
inadequate constitutional status and autonomy for local government laid out in the NT. 22
In the area of labour relations, the NT failed to recognize and protect the right of
individual employers to be able to partake in collective bargaining. 23 The Court also
criticized the state of emergency provisions for being "irrational," as they allowed for the
derogation of fundamental rights, even in completely unjustified situations. 24 The NT
also had inadequate protections for constitutional supremacy and rights. This is evident
in the fact that certain mechanisms such as checks and balances or institutional
protections were not strong enough to meet the required principles.25
18
140.
19
First Certification Judgment 11.
20
26.
21
94.
22
De Vos et al Constitutional Law 18.
23
19.
24
27.
25
Langa “Transformative constitutionalism”
Bibliography
Books
De Vos P & Freedman W (eds) South African Constitutional Law in Context 2 ed (2021),
Cape Town: Oxford University Press.
Law journal articles
Langa P “Transformative constitutionalism” (2006) 17 Stellenbosch Law Review 351-
360.
Cases
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC).
Constitutions
South Africa
Constitution of the Republic of South Africa, 1996.
Interim Constitution of the Republic of South Africa, Act 200 of 1993.
Internet
Our Constitution “Testing the Constitution in court” (12-11-2020) Our Constitution
[Link]
one-nation/testing-the-constitution-in-court/ (accessed 12-04-2026).