Конституция Южно-Африканской Республики: История и Основы

Supreme and fundamental law of South Africa

The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Government. The current constitution, the country's fifth, was drawn up by the Parliament elected in 1994 in the South African general election, 1994. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The first constitution was enacted by the South Africa Act 1909, the longest lasting to date. Since 1961, the constitutions have promulgated a republican form of government. Since 1996, the Constitution has been amended by eighteen amendment acts. The Constitution is formally entitled the "Constitution of the Republic of South Africa, 1996." It was previously also numbered as if it were an Act of ParliamentAct No. 108 of 1996but, since the passage of the Citation of Constitutional Laws Act, neither it nor the acts amending it are allocated act numbers.

The South Africa Act 1909, an act of the Parliament of the United Kingdom, unified four British coloniesCape Colony, Transvaal Colony, Orange River Colony and Natal Colonyinto the Union of South Africa, a self governing dominion. The Republic of South Africa Constitution Act, 1961 transformed the union into a republic, replacing the Queen with a State President, but otherwise leaving the system of government largely unchanged. By removing the last Commonwealth legal vestiges, however, the act made the then apartheid government completely sovereign. In a referendum, the first national election with a solely white electorate, the Act was narrowly approved, with a substantial minority in the Cape province and a strong majority in Natal opposing it. The Republic of South Africa Constitution Act, 1983, again approved by a whites only referendum, created the Tricameral Parliament, with separate houses representing Whites, Coloureds and Indians but without representation for Blacks. The figurehead State President and executive Prime Minister were merged into an executive State President, chosen by parliament. This contradiction remains to date and is nearly unique to South Africa (one exception being neighbouring Botswana). The Constitution of the Republic of South Africa, 1993 or Interim Constitution was introduced at the end of apartheid to govern the period of transition. It introduced, for the first time, the framework of a liberal democracy, universal adult suffrage and a bill of rights.

An integral part of the negotiations to end apartheid in South Africa was the creation of a new constitution. One of the major disputed issues was the process by which such a constitution would be adopted. The African National Congress (ANC) insisted that it should be drawn up by a democratically elected constituent assembly, while the governing National Party (NP) feared that the rights of minorities would not be protected in such a process, and proposed instead that the constitution be negotiated by consensus between the parties and then put to a referendum. Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA). The parties agreed on a process whereby a negotiated transitional constitution would provide for an elected constitutional assembly to draw up a permanent constitution. The Interim Constitution contained 34 constitutional principles with which the new constitution was required to comply. These included multi party democracy with regular elections and universal adult suffrage, supremacy of the constitution over all other law, a quasi federal system in place of centralised government, non racism and non sexism, the protection of "all universally accepted fundamental rights, freedoms and civil liberties," equality before the law, the separation of powers with an impartial judiciary, provincial and local levels of government with democratic representation, and protection of the diversity of languages and cultures. The Bill of Rights, now in Chapter Two of the Constitution of South Africa, was largely written by Kader Asmal and Albie Sachs. The new constitutional text was to be tested against these principles by the newly established Constitutional Court. If the text complied with the principles, it would become the new constitution; if it did not, it would be referred back to the Constitutional Assembly.

The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. As the deadline for the adoption of a constitutional text approached, however, many issues were hashed out in private meetings between the parties' representatives. The Constitutional Assembly reconvened and, on 11 October, adopted an amended constitutional text containing many changes relative to the previous text. Some dealt with the court's reasons for non certification, while others tightened up the text. The amended text was returned to the Constitutional Court to be certified, which the court duly did in its Second Certification judgment, delivered on 4 December. The Constitution was signed by President Mandela on 10 December and officially published in the Government Gazette on 18 December. It did not come into force immediately; it was brought into operation on 4 February 1997, by a presidential proclamation, except for some financial provisions which were delayed until 1 January 1998.

The constitution consists of a preamble, fourteen chapters containing 244 sections, and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.

Chapter 1 enshrines in the constitution key national principles, defines the country's flag and national anthem, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. The chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution.

Chapter 3 deals with the relationships between organs of government in the three "spheres"national, provincial and local. It lays down a set of principles requiring them to co operate in good faith and to act in the best interests of the people. It also requires them to attempt to settle disputes amicably before resorting to the courts.

Chapter 4 defines the structure of Parliament, the legislative branch of the national government. Parliament consists of two houses, the National Assembly (the lower house), which is directly elected by the people, and the National Council of Provinces (the upper house), which is elected by the provincial legislatures. The Chapter defines the principles governing the election and dissolution of the houses, qualifications for membership of Parliament, quorum requirements, procedures for the election of presiding officers, and the powers and privileges and immunities of Parliament and its members. It lays down the process for enacting bills into law; different procedures are provided for constitutional amendments, ordinary bills not affecting provincial matters, ordinary bills affecting provincial matters, and money bills.

Chapter 5 defines the structure of the national executive and the powers of the President. It provides for the election and removal of the President by the National Assembly, and limits a President to two five year terms. It vests in him or her the powers of the head of state and head of government; it provides for the appointment of a Cabinet by the President; and it provides for the accountability to Parliament of the President and Cabinet.

Chapter 6 establishes the nine provinces of South Africa and defines the powers and structure of the provincial governments. The boundaries of the provinces are defined by reference to Schedule 1A to the Constitution, which refers in turn to the boundaries of the metropolitan and district municipalities. In some respects, the chapter is a template which a province may modify to a limited extent by adopting its own provincial constitution. (The only province so far to have done this is the Western Cape.) The chapter provides for a unicameral legislature, a Premier elected by the legislature as head of the provincial executive, and an Executive Council appointed by the Premier as a provincial cabinet. The provincial government is given exclusive powers over certain matters, listed in Schedule 5, and powers concurrent with the national government over other matters, listed in Schedule 4. The chapter regulates the conflict between national and provincial legislation on the same topic, setting out the circumstances under which one or the other will prevail.

Chapter 7 sets out a framework for local government. It requires municipalities to be established for the whole territory of South Africa, and provides for three categories of municipalities, whereby some areas are governed by a single "Category A" municipal authority and others are governed by a two level system with a larger "Category C" municipality containing multiple "Category B" municipalities. The municipalities are granted the power to administer certain matters listed in Schedules 4 and 5, and the executive and legislative authority is vested in the municipal council. The chapter requires municipal elections to be held every five years.

Chapter 8 establishes the structure of the judicial system. It defines the hierarchy consisting of Magistrates' Courts, the High Court, the Supreme Court of Appeal, and the Constitutional Court. It provides for the appointment of judges by the President on the advice of the Judicial Service Commission and establishes a single National Prosecuting Authority responsible for all criminal prosecutions.

Chapter 9 creates a number of other commissions and offices to protect and support democracy and human rights. These are the Public Protector (an ombudsman), the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor General, the Independent Electoral Commission and the Independent Communications Authority.

Chapter 10 lists values and principles for the administration of the civil service and establishes the Public Service Commission to oversee it.

Chapter 11 establishes structures for civilian control of the Defence Force, the Police Service and the intelligence services. It makes the President the Commander in Chief of the defence force but places conditions on when and how it may be employed and requires regular reports to Parliament. The police service is placed under the control of the national government but gives provincial governments some power to administer and oversee policing.

Chapter 12 recognizes the status and authority of traditional leaders and customary law, subject to the Constitution. It allows for the creation of provincial houses of traditional leaders and a national council of traditional leaders. The Traditional leaders must have responsibilities in affairs and decision making of the municipality in order to build proper sustainable development to the people that resides on that municipality. Because we have Traditional leaders that do not have daily duties day in and day out; in short they must be part of mayoral council.

Chapter 13 deals with public finance. It establishes a National Revenue Fund, from which money may be appropriated only by an act of Parliament, and Provincial Revenue Funds, from which money may only be appropriated by an act of the provincial legislature. It provides for an equitable distribution of national revenue to the provinces and municipalities, and grants provincial and local governments the powers to raise certain rates and taxes. It requires effective and transparent budgeting at all levels of government and gives the National Treasury the power to oversee budgetary processes. It places some restrictions on government procurement and government borrowing. The chapter establishes the Financial and Fiscal Commission, to advise government on financial matters, and the Reserve Bank, to oversee the currency. Economist Jacques Jonker has criticised the provisions of Chapter 13 as being insufficient to guard against fiscal imprudence, and has suggested that it be amended in line with other constitutions such as that of Spain in order to enforce fiscal discipline.

Schedule 1, referred to in Chapter 1, describes the national flag. Schedule 1A, referred to in Chapter 6, defines the geographical areas of the provinces, by reference to maps published by the Municipal Demarcation Board defining the metropolitan and district municipalities. Schedule 2 contains the texts of the oaths or solemn affirmations to be sworn by political office holders and judges. Schedule 3 describes the procedure for the election of the President by the National Assembly and the election of presiding officers by legislative bodies, as well as the formula whereby seats in the National Council of Provinces are to be allocated to political parties. Schedule 4 lists the "functional areas" over which Parliament and the provincial legislatures have concurrent competence to legislate. Schedule 5 lists the functional areas over which the provincial legislatures have exclusive competence to legislate. Schedule 6 details the transitional arrangements by which institutions existing under the previous constitution were converted into the institutions established by the new constitution. It provides for the continuation of existing laws and the assignment of their administration to the provincial governments where appropriate. It also provides for certain sections of the old constitution to continue in force despite its repeal, and subject to amendments listed in the schedule. It also includes temporary amendments to the Constitution's own text which allowed the Government of National Unity to continue until the 1999 election. Schedule 7 lists the laws repealed by the new constitution, these being the interim constitution and the ten amendments made to it.

Section 74 of the Constitution provides that a bill to amend the Constitution can only be passed if at least two thirds of the members of the National Assembly (that is, at least 267 of the 400 members) vote in favour of it. If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the country's founding values, would require the support of three quarters of the members of the National Assembly. There have been eighteen amendments since 1996.

The Constitution First Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1997) was signed by the President on 28 August 1997 but had effect retroactively to 4 February 1997 when the constitution came into force. It had three provisions:
to provide that a person who serves as Acting President of the Republic more than once during a single presidential term only has to swear the oath of office the first time that they become Acting President. to allow the President of the Constitutional Court to designate another judge to administer the oath of office to the President or Acting President, rather than administering it personally. to extend the cut off date for actions for which amnesty could be granted by the Truth and Reconciliation Commission, changing it from 6 December 1993 to 11 May 1994. This last change allowed the TRC to deal with various violent events, particularly the Bophuthatswana coup d'état and its aftermath, that had occurred in the run up to the 1994 general elections.

The Constitution Second Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1998) came into force on 7 October 1998. It had five provisions:
to extend the term of office of municipal councils from four years to five years. to extend certain deadlines in the process of transition to the post apartheid system of local government. to allow for the designation of alternates to replace members of the Judicial Service Commission. to give Parliament the ability to assign additional powers or functions to the Public Service Commission. to rename the Human Rights Commission to the South African Human Rights Commission.

The Constitution Third Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 1998) came into force on 30 October 1998. It allowed for municipalities to be established across provincial boundaries by the agreement of the national and the relevant provincial governments. The changes it made were reversed in 2005 by the Twelfth Amendment.

The Constitution Seventh Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 2001) came into force on 26 April 2002, except for provisions affecting the Financial and Fiscal Commission which came into force on 1 December 2003. It made various amendments to provisions affecting the financial management of national and provincial government, including:
an extension of what is considered a "money bill" in the national Parliament and the provincial legislatures. requiring that Division of Revenue Bills (bills dividing revenue between national, provincial and local government) can only be introduced to Parliament by the Minister of Finance. reducing the size of the Financial and Fiscal Commission from 22 members to nine members, by reducing the number of members chosen by the president from nine to two, and by replacing the nine members chosen by the nine provinces individually with three members chosen by the provinces collectively. modifying the mechanisms whereby the national government can control the financial practices of the provincial governments.

The Constitution Eleventh Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 2003) came into force on 11 July 2003. It renamed the Northern Province to Limpopo, altered the procedure for intervention by the national government in a failing provincial government and intervention by a provincial government in a failing municipality, and expanded the powers of the provincial executive when it intervenes in a municipality.

The Constitution Twelfth Amendment Act came into force on 1 March 2006; it altered the boundaries of seven of the provinces. In the interim constitution the provinces had been defined in terms of magisterial districts; the amendment redefined them in terms of the district and metropolitan municipalities. The Twelfth Amendment also removed the provisions introduced by the Third Amendment that allowed municipalities to be established across provincial boundaries. Some of the boundary changes encountered substantial public opposition. The community of Matatiele, which had been transferred from KwaZulu Natal to the Eastern Cape, challenged the amendment before the Constitutional Court, which ruled on 18 August 2006 that the KwaZulu Natal Legislature had not allowed for the necessary public participation before approving the amendment. The court's order was suspended for eighteen months, and during that time Parliament re enacted the Matatiele boundary change as the Thirteenth Amendment, which came into force on 14 December 2007. The people of Khutsong, which had been transferred from Gauteng to the North West, resorted to marches, protests (in some cases violent) and boycotts and stayaways. In 2009 the Merafong City Municipality, which contains Khutsong, was transferred back to Gauteng by the Sixteenth Amendment.

The Constitution Fourteenth and Fifteenth Amendment Acts came into force on 17 April 2009; they repealed the floor crossing provisions introduced by the Eighth, Ninth, and Tenth Amendments. The Fourteenth Amendment contained the provisions which affected the provincial legislatures and the National Council of Provinces (NCOP), and therefore had to be approved by supermajority in the NCOP as well as the National Assembly, while the Fifteenth Amendment contained the remaining provisions which only had to be approved by the Assembly.

The Constitution Sixteenth Amendment Act came into force on 3 April 2009. It transferred the Merafong City Municipality from the North West province to Gauteng province. This followed community opposition and protest in Khutsong following from the boundary change introduced by the Twelfth Amendment.

The Constitution Seventeenth Amendment Act came into force on 23 August 2013; along with the Superior Courts Act it restructured the judicial system. The amendment:
declared the Chief Justice to be the head of the judiciary, with responsibility for administrative oversight of the courts. expanded the jurisdiction of the Constitutional Court so that, as well as constitutional matters, it has jurisdiction over any matters of general public importance that it chooses to hear. removed the jurisdiction of the Supreme Court of Appeal over appeals from the Labour Appeal Court and the Competition Appeal Court. altered references to the High Courts so that they are regarded as divisions of a single High Court of South Africa rather than separate courts. allowed the appointment of a Constitutional Court judge as acting Deputy Chief Justice (DCJ) if the position is vacant or the DCJ is absent.

The Constitution Eighteenth Amendment Act, signed on 19 July 2023, made South African Sign Language an official language of South Africa, in addition to the existing eleven official spoken languages.