Leigh Philander 05/03/2025

PBL2000W Tutorial 1
Week 3
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1.​ In order to try and secure the legitimacy of the 1996 Constitution, a series of multi-party
negotiations took place. The first was the Convention for a Democratic South Africa
(CODESA), which occurred in 1992, and the multi-party negotiating forum (MNF)
which took place between the African National Congress (ANC) and the National Party
(NP) among others. This was important to prevent against party dominance and to
demonstrate a broadened representation. The creation of the Interim Constitution in 1993
involved the adoption of a temporary constitution to aid in the development of the final
constitution. In the Interim constitution, the multi-party negotiating forum listed 34
principles by which the final constitution ought to apply. This was problematic given the
fact that the multi-party negotiating forum consisted of a body of unelected members
who were demanding that the aforementioned principles be upheld without contestation,
thereby undermining the concept of legitimacy. Another step toward the promotion of
legitimacy for the 1996 Constitution is the encouragement by the constitutional assembly
of public participation through written submissions and hearings. This increased the
legitimacy by allowing the views of ordinary citizens to be heard. Although these steps
were implemented, they were not sufficient. In particular, although the 34 principles were
instituted by a separate court to ensure impartiality, the MNF’s prescription of the 34
principles meant that the newly elected body was limited in their reconstruction of the
Constitution, and full democratic participation was also restricted in the drafting of the
document. Drafted by elected representatives, requiring a majority, newly elected
constitutional court.

2.​ The Basic Structure Doctrine refers to the concept that there are some ideas and norms
that ought never to be subject to amendment. Fundamental to identity of FC;
amending would be akin to replacing the FC. An example of this doctrine enacted is in
the German Constitution and the idea of ‘never again’ after the atrocities of World War II.
 Section 1 of the Constitution states that South Africa is one, democratic state founded
under the values of human dignity, equality, the advancement of human rights and
freedoms, non-racialism and non-sexism, the supremacy of the Constitution and the rule
of law, and a multi-party system of democratic government to ensure accountability,
responsiveness and openness. Section I of the Constitution should not strictly be subject
to the Basic Structure Doctrine, as the Constitution itself was formulated in response to
the political aftermath of Apartheid and the historical context of colonialism, rather than
being formulated as a necessity in itself. Therefore, the circumstances regarding the
political, economic and social context of South Africa may change over time, and future
generations should not be absolutely restricted by the drafters of the 1996 Constitution, as
this may encourage this future government to suspend the Constitution entirely. Rather,
select portions of Section I, such as those that pertain to human dignity, equality and
freedom, should be subject to the Basic Structure Doctrine as this remains consistent with
international norms and ensures the protection of core human rights. Section 74 allows
for the amendment of Section 1 provided a 75% majority. (possible argument
against BSD).

3.​ Modiri argues that firstly, South African constitutionalism reconceptualizes the traditional
historical periodization upon which the Constitution is premised, secondly, that it inserts
black radical and African epistemologies into legal and political thinking, and thirdly,
that it unearths the ideological presuppositions of the post-1994 constitutional
framework. Regarding Modiri’s first argument I agree. He contends that the enactment of
the Constitution presents the current state of South Africa as being substantively
post-Apartheid and does not address the effects of colonialism adequately. By the
Constitution focusing on reconciliation rather than redress, it entrenches the unjust
historical foundation. Regarding the second argument, he mentions that by adopting this
Western framework of constitutionalism, it also alienated African epistemologies, as this
framework was one regarded as foreign. Therefore, black Africans were subjugated to a
kind of ‘epistemic violence’ the Constitution adopted a Western liberal framework of
constitutionalism, which placed a large focus on individual rights and freedoms, rather
than addressing structural injustices such as racialized poverty and land dispossession. I
 disagree with Modiri, as he takes the position of the constructivist-grand narrative that
liberal ideology is oppressive due to its inherent Western origins. This view is ignorant of
the fact that ideologies spread across the world and are adaptable to different
socio-political contexts. Furthermore, his particular focus on indigenous African thinking,
albeit necessary given the demographics of the populace, ignores the diverse reality of
South Africa as a multi-racial, multicultural country, rather than just a ‘Black’ country. In
light of this multicultural reality, Modiri ignores the diverse epistemologies that may have
evolved, rather than a purely ‘African’ or ‘Black’ epistemology. Regarding the third
argument, I agree. The assumptions of the Constitution in its adoption of liberal
democratic principles, is that all South Africans begin on equal footing. However, this
assumption ignores the structural injustices that still remain. The Constitution also
presents itself as a technical legal solution in response to a political struggle. By limiting
transformation to technical legal constraints, true radical social change is prohibited.

4.​
a.​ The Speaker should consider the constitutional obligation of the national assembly to
hold the executive accountable, and whether the correct mechanisms to ensure this
accountability were in place. The Speaker should also consider the applicant’s reasoning
behind the demand for a secret ballot. The applicant reasoned that the processes of
electing and removing the president ought to be the same, but this is a logical fallacy and
does not follow. The Speaker should also consider that an open ballot would be in line
with the constitutional aims of transparency, whereas a closed ballot would be contrary to
this aim. Factors in para 85-88 of UDM case. Factors: Openness, transparency,
accountability.

b.​ In 2022 the Democratic Alliance (DA) motioned a vote of no confidence against
President Cyril Ramaphosa. The motion was made by John Steenhuisen and the DA
requested that the vote be made by a secret ballot. Speaker Mapisa-Nqakula rejected the
request, and the motion was struck down by the National Assembly on the 30th of March,
2022. The motion was tabled in regard to corruption and inadequate energy reforms. In
this case, I disagree with the Speaker’s decision to reject the secret ballot, as the ANC’s
 dominance in parliament meant that it would be difficult for the National Assembly to
hold the president accountable due to political party loyalties, which the Speaker should
have foreseen. This factor, coupled with the fact that the National Assembly has a
constitutional obligation to hold the Executive accountable, means that the Speaker’s
decision opposed the goals of the Constitution. The request for a closed ballot in this case
was not to have non-disclosure in itself, but took into consideration that the National
Assembly would likely fail at effectively carrying out its constitutional obligation.

c.​ Not having a majority party in parliament would ensure that members of the Executive
are properly held to account. When a single party dominates, there is a lack of political
will to hold the members of the executive accountable, because members of the executive
would also be members of parliament. Therefore, it would be against party etiquette to
challenge the political party of the executive. Furthermore, the members of parliament’s
positions depend on the elections from the executive body, therefore it is difficult to hold
the executive to account in this regard. Additionally, when a single party dominates
parliament, it limits the influence of the opposition to challenge the executive and hold
them accountable, as the executive may dominate committees, voting procedures, and
agenda-setting. Weakened accountability mechanisms. In a coalition government,
accountability mechanisms are stronger, no single party in control, more healthy
debates, more room for executive accountability.