Constitution News is distributed by the ANC's National Constitutional Commission to keep ANC, alliance and MDM structures informed of developments in the constitution-making process.
Court sends constitution text back to the CA
The Constitutional Court last month referred the new constitutional text back to the Constitutional Assembly, saying it was unable to certify the text the assembly had approved in May.
According to the interim constitution, the new constitution cannot come into effect until the Constitutional Court has certified that the new text complies with the 34 constitutional principles agreed to during multi-party negotiations in 1993 and attached to the interim constitution.
The court identified nine areas in the constitutional text which did not comply with the constitutional principles. It said the text failed to:
It further said that provisions of the constitutional text allowed a substantial reduction in the powers and functions of provinces, which was not permitted by the constitutional principles.
The court also rejected numerous objections to the constitutional text, upholding most of its provisions.
In his presentation of the judgement, Constitutional Court president Arthur Chaskalson said the constitutional text represented a major achievement.
"The basic structure of the proposed constitution is sound and the overwhelming majority of the requirement of the constitutional principles have been satisfied.
The instances of non-compliance that have been identified should present no significant obstacle to the CA in formulating a text which complies fully with those requirements, " he said.
President Nelson Mandela said the court judgement helped to clarify issues that were vaguely formulated in the constitutional principles. "It will ensure that the final draft strictly adheres to both the letter and the spirit of those principles, " he said.
Addressing a media briefing after the judgement, ANC deputy secretary general Cheryl Carolus said the judgement, which acknowledged that more than 2 000 sub-clauses were within the requirements of the constitutional principles, was a tremendous tribute to all the political parties in the CA.
"It is our view that it would be counter-productive and retrogressive to begin to open for debate those provisions of the constitution that have passed the test of the court, " she said.
The ANC extended its compliments to the court for its intense scrutiny of the constitutional text, saying it reinforced the transparent and participatory culture that had characterised the constitution-making process.
The referral of the constitution to the CA also afforded parties the opportunity to correct a number of inadvertent errors that had crept into the draft, Carolus said.
Section 23
This section specifies the rights of workers, employers, trade unions and employers' organisations.
Principle 28
This guarantees the rights of employers and employees, among other things, to engage in collective bargaining.
The constitutional text only entrenches the rights of employers' associations to engage in collective bargaining, but not the right of individual employers.
Section 241 (1)
A compromise position on the lock-out issue, this section says any provision of the new Labour Relations Act would remain valid
Schedule 6 Section 22 (1) b
This section on transitional arrangements, says the provisions of the Promotion of National Unity and Reconciliation Act remain valid despite the provisions of the constitution.
Principle 4
The constitution is the supreme law of the land.
Principle 7
The judiciary is given the power and jurisdiction to safeguard and enforce the constitution and all fundamental rights.
The sections which refer to the Labour Relations Act and Promotion of National Unity and Reconciliation Act, respectively, clearly intend to protect ordinary laws from constitutional review. This is incompatible with the required supremacy of the constitution.
Section 74
The section prescribes the majorities required to amend the constitution a two-thirds majority in the National Assembly and six out of the nine provinces in the National Council of Provinces.
Principle 15
Amendments to the constitution require special procedures involving special majorities.
Principle 2
Requires that all universally accepted rights, freedoms and civil liberties "shall be provided for and protected by entrenched and justiciable provisions in the constitution ".
While the constitutional text describes special majorities for the amendment of the constitution, it doesn't make any reference to special procedures.
The "entrenchment " of these rights means that the Bill of Rights should not be as easy to amend as other sections of the constitution. It should have greater protection than ordinary constitutional provisions.
Section 194
This section says the Public Protector, Auditor General and members of the human rights, gender equality and electoral commissions can be removed from office by the adoption of a resolution by a majority of members of the National Assembly
Principle 29
The independence and impartiality of the Public Protector and Auditor-General must be provided for and safeguarded by the constitution.
Because the Public Protector and Auditor General require a high level of independence, the provision which allows them to be removed by a simple majority in the National Assembly does not meet the requirements of the constitutional principle.
Section 196
This section makes provision for a single Public Service Commission for South Africa, and states that it is independent, must be impartial and is regulated by national legislation.
Principle 29
The independence and impartiality of the Public Service Commission must be provided for and safeguarded by the constitution.
Principle 20
Each level of government must have adequate powers to be able to function effectively and have effective public administration.
The constitutional text does not provide enough detail about the powers and functions of the Public Service Commission, nor about the protection it will have to perform its constitutional duties independently and impartially.
Because of the vagueness in the text about the Public Service Commission, it is impossible to certify that Principle 20 has been complied with, without knowing what control provinces will have over the staffing of provincial administrations.
Chapter 7
This chapter deals with the status, objectives and duties of local government. It deals with the establishment, composition and election of municipal councils, as well as their powers and functions.
Principle 24
A framework for local government powers, functions and structures must be set out in the constitution.
Principle 25
The local government framework required by Principle 24 must make provision for appropriate fiscal powers and functions for different categories of local government.
Principle 10
Formal legislative procedures have to be adhered to by all levels of government.
The local government chapter is too vague. It does not differentiate between different types of local government, calling them all "municipalities". It doesn't provide enough detail about the overall structural design of local government, how executives are appointed, how decisions are taken or what formal legislative procedures are to be followed.
There is no provision in the constitutional text for appropriate fiscal powers and functions for different categories of local government.
Schedule 4, Schedule 5
Schedule 4 outlines the areas on which national and provincial government can both legislate (concurrent competence), while Schedule 5 outlines those areas where provinces alone can legislate (exclusive competence).
Section 146
This section outlines the procedures and principles to be followed in the event of a conflict between national and provincial legislation on concurrent issues.
Principle 18.2
The powers and functions of the provinces defined in the new constitution may not be substantially less or inferior than those provided for in the interim constitution.
For a number of reasons the powers and functions of provinces were deemed to be inferior in the constitutional text. The measure of whether they were 'substantially' inferior rested on two factors:
The combined weight of these two factors was enough to make the reduction in provincial powers 'substantial'.
Cosatu welcomes lock-out ruling
The Congress of South African Trade Unions (Cosatu) has welcomed the Constitutional Court ruling that an employer's right to lock-out does not enjoy the status of a universally accepted fundamental human right.
"This finding vindicates COSATU's position, which we have held since the earliest days of the constitution-making process, that there is no place for a lock-out in the Constitution of a democratic South Africa. The finding also decisively refutes the position adopted by business and the minority political parties that a lock- out is equal to the right to strike and that it should be included in our new Bill of Rights, " Cosatu said in a statement after the ruling.
The Constitutional Court's finding that there was no need to entrench the right to lock-out in the constitution was a great and historic victory for South Africa's working people, it said.
The court found that the section in the new constitutional text which gave the current Labour Relations Act special protection was not in accordance with the principles outlined in the interim constitution.
This section was included as a compromise to pacify business and their representatives in parliament. Business argued that the exclusion of the lock-out "right" in the constitutional text would make the lock-out provisions in the Labour Relations Act unconstitutional. In order to a accommodate this concern, the LRA was protected from constitutional attack.
"In our view the removal of [this section] will not impact negatively on the interests of workers as the clause simply serves to protect that which is already protected under the LRA and other legislation, " Cosatu said.
Cosatu said it never campaigned for the inclusion of the section on the LRA: "We believed that the LRA is in compliance with the rights guaranteed in the Constitution, and therefore considered its protection from constitutional challenge by s241 to be unnecessary. "
Cosatu was concerned, however, by the implications of the court's ruling that individual employers should have collective bargaining rights.
The constitutional text only provides for collective bargaining through employer organisations, but does not protect the rights of individual employers to collective bargaining. This was motivated by a desire to guarantee collective bargaining but not to undermine centralised bargaining.
"The Constitutional Court has held that this text does not comply fully with the constitutional principle that an employer's right to bargain collectively must be protected and guaranteed in the Constitution. In giving effect to the Constitutional Court's ruling the Constitutional Assembly must formulate the text in a way that does not undermine centralised bargaining. The Constitutional Court's ruling must not be understood to remove parliament's right to determine the levels of collective bargaining, " the statement said.
The new constitution could be certified by the end of the year, if the Constitutional Assembly's re-drafting programme goes according to schedule. The Constitutional Assembly (CA) has to re-work those sections of the constitutional text adopted in May which the Constitutional Court found did not comply with the 34 constitutional principles contained in the interim constitution.
The CA said it wanted to finish the re-drafting by 11 October and submit it again to the Constitutional Court. This would allow enough time for the court to still certify the constitution this year, so that its implementation could start on 1 January next year.
The CA's management committee agreed two CA sub-committees should convene on 24 September to start looking at the nine sections referred back by the court. The committee gave political parties until then to prepare their submissions.
Created: 14 October1996