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The Constitution of the Republic of South Africa

Published online by Cambridge University Press:  28 July 2009

John Hatchard
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Extract

“We the people of South Africa declare that … there is a need to create a new order in which all South Africans will be entitled to … enjoy and exercise their fundamental rights and freedoms.” (Preamble to the Constitution of the Republic of South Africa)

Type
Statute Note
Information
Journal of African Law , Volume 38 , Issue 1 , Spring 1994 , pp. 70 - 77
Copyright
Copyright © School of Oriental and African Studies 1994

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References

1 See Statute Note in (1993) 37 JA.L. 206.

2. Part of the SAC preamble.

3. The SAC repeals the legislation relating to the establishment of the homelands. But once given, can sovereignty be taken away in this fashion?

4. A similar system operates for the appointment of deputy ministers.

5. This is a good example of the compromises made during the MPNP because the South African Government argued strongly for a percentage vote by which Cabinet would take decisions.

6. 200 seats are filled from regional lists and 200 from a national list.

7. Both chambers will sit in Cape Town.

8. No provision is made for a situation where there is still disagreement on the bill.

9. The legislative and executive competence of a province cannot be amended without the consent of its legislature.

10. Another highly sensitive issue concerning the restructuring of local government will be addressed in later legislation.

11. The Supreme Court consists of an Appellate Division and provincial and local divisions.

12. Perhaps to emphasize its new approach and powers, the court will sit in Johannesburg (s. 96(1)) and not in Bloemfontein which remains the seat of the Appellate Division.

13. What constitutes an anticipated violation is unclear and may pose the court a considerable headache not least because of the number of cases it might engender.

14. Unlike previously where the matter was left almost entirely to the discretion of the President.

15. S. 89(5)(d).

16. Which can include having lectured in law at a university.

17. There is also provision for the establishment of a Magistrates Commission which will oversee the appointments, promotion, dismissal and related matters of magistrates and “to ensure that no victimisation or improper influencing of magistrates” occurs.

18. On those occasions where a matter concerns a provincial division of the Supreme Court, the relevant Judge, President and Premier will join the commission.

19. ANC Policy Guide “Ready to Govern” p. 5.

20. The grounds include race, gender, sex (sic), ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture and language.

21. Is there a difference between mental and emotional torture?

22. Surprisingly, there is no time-frame given as to exercise of the right to communicate with such persons.

23. See Chapter 8, SAC.

24. Presumably this will apply to both students and the recruitment of staff.

25. This could prove problematical and expensive. For example, a member of Parliament may address Parliament in the official South African language of his or her choice. Will this require contemporaneous interpretation into the other languages?

26. For example, rights relating to free and fair political activity.

27. It is hoped that South Africa will also become a party to the major international and regional human rights instruments.

28. The provision is in line with the High Court of Lesotho decision in Law Society of Lesotho v. Minister of Defence [1988\ L.R.C. (Const) 226.

29. See generally Hatchard, J., Individual Freedoms and Emergency Powers in the African Context: A Case Study of Zimbabwe, Ohio and London, 1993.Google Scholar

30. Detentions under s. 29 of the Internal Security Act continued even during the pre-election period. For a fuller discussion see generally A. Harding and J. Hatchard (eds.), Preventive Detention Security Law: A Comparative Survey, Dordrecht, 1993.

31. Although an office of the ombudsman has been operating in Bophuthatswana for some years.

32. The term “Public Protector” was chosen because of the gender connotation of the word “ombudsman”.

33. See generally Hatchard, J., “The institution of the ombudsman in Africa with special reference to Zimbabwe” (1986) 35 I.C.L.Q. 255–271.Google Scholar

34. It is curious that a university lecturer in law can hold the post of Public Protector or be a judge of the Constitutional Court, but cannot be a member of the Judicial Service Commission unless holding the rank of professor.

35. In the event the ANC won 63% of the vote in the April elections and was thus not able to undertake the task of drawing up the new Constitution without needing to rely on the support of other parties.