Post Apartheid Legal Order Flashcards
Internal Pressures
The Defiance Campaign, Sharpeville Massacre, Soweto Uprising, 1980s State of Emergency, the bombings by MK, formation of the UDF and COSATU and general disobedience.
International Pressures
The Rivonia Treason Trial, Sharpeville and Soweto reactions, end of the Cold War, sanctions and trade embargoes, travel restrictions, the expulsion from the UN, Musicians uniting against apartheid and mounting isolation/criticism from the entire globe.
February 1990
ANC Unbanned & Mandela Released
F.W. de Klerk became President in 1989. He built on the secret negotiations with the imprisoned Mandela. Seen as the first significant steps towards formal negotiations.
4 May 1990
Groote Schuur Minute
Commitment between ANC & NP to the resolution of the existing climate of violence and intimidation as well as the removal of obstacles to negotiation.
6 August 1990 Pretoria Minute
Extended the consensus between the parties. This included the suspension of the armed struggle by the ANC and its military wing, MK.
14 September 1991 National Peace Accord
National Peace Accord
Critical step toward formal negotiations. Signed by reps of 27 political organisations and national and homeland governments. Paved the way for the CODESA negotiations.
December 1991 CODESA I
The first session lasted a few days, and working groups were appointed to deal with specific issues. These working groups continued their negotiations over the next month.
Early 1992
White Only Referendum
The result was a landslide victory for the “yes” side, with over 68% of the voters voting for a continuation of the reforms and negotiations.
May 1992 – CODESA II
Basically a continuation of CODESA I.
June 1992 Boipatong Massacre
45 residents of Boipatong killed by mainly-Zulu hostel dwellers. Mandela accused government of complicity in the attack and withdrew the ANC from the negotiations.
September 1992 Bisho Massacre
The army of the independent “homeland” of Ciskei opened fire on ANC protest marchers, killing 29. This brought a new urgency to the search for a political settlement.
September 1992 Resumption of Negotiations
Joe Slovo, leader of the SACP, in 1992 proposed the breakthrough “sunset clause” for a coalition government for the five years following a democratic election, including guarantees and concessions to all sides.
26 September 1992 Record of Understanding
Dealt with a constitutional assembly, an interim government, political prisoners, hostels, dangerous weapons and mass action and restarted the negotiation process.
1 April 1993
The Multiparty Negotiating Forum
The ANC and the NP, agreed to reach bilateral consensus on issues before taking them to the other parties in the forum. This put considerable pressure on the other parties to agree with the consensus or be left behind.
10 April 1993
Assassination of Chris Hani (leader of the SACP and a senior ANC leader)
Killed by white right-wingers. Brought the country to the brink of disaster. Considered as an event which led to a shift of power in favour of the ANC due to Mandela’s handling of the situation.
June 199
AWB Storming of Kempton Park
Briefly took over the negotiations building but ultimately left without too much harm caused.
18 November 1993
Interim Constitution Ratified
Thereafter, a Transitional Executive Council oversaw the run-up to a democratic election.
27 April 1994 – The Election
ANC won with 62% of the vote.
what did s68 and 71 of the interim constitution require
Sections 68 and 71 of the Interim Constitution required the new government, in its capacity as the Constitutional Assembly, to draft and adopt the final Constitution that would comply with the 34 predetermined constitutional principles.
- These principles were contained in schedule 4 of the Interim.
- The principles were the framework for the creation of a democratic state with a supreme constitution in which the rights and freedoms of all citizens were protected.
what did the 1996 constitution represent
The 1996 Constitution represents the end of the “negotiated revolution”.
1. Adopted on 8 May 1996, it was then submitted to the Constitutional Court to be certified.
o Certification saw the Court measure the text against the 34 principles. ü The Court refused to certify the text, feeling the principles weren’t fully upheld.
o 11 October 1996: Amended version was sent to the Court and was approved.
- President Mandela signed the text into law on December 10th 1996 at Sharpeville and
it became effective on 4 February 1997.
what were the dates of the previous SA constitutions
1910,1961 and 1983
explain the main features of the earlier constitutions briefly
These constitutions took little account of the multi-lingual, ethnic and cultural nature of South African society.
Ø Catered almost exclusively to white, Christian, Afrikaans, patriarchal minority of the nation.
Apartheid was not racial segregation, but exploitation and oppression.
ü The three earlier constitutions entrenched the principle of parliamentary sovereignty.
o Parliament has the right to make/unmake law and no person or body has the right to override or set aside legislation of Parliament.
Ø South Africa inherited the Westminster system initiated by 1910 constitution
o Basically, the courts could not declare any laws made by a properly constituted parliament invalid.
what was the result of SA leaving the commonwealth
Retained this parliamentary sovereignty, however. This allowed it to enact apartheid laws in
unbridled fashion.
Ø Courts could only reject a statute as invalid was if the incorrect process had been followed – see Harris v Minister of the Interior.
S v Makwanyane and ubuntu
Constitutional Court abolish the law that authorised the death penalty as punishment for murder as it was found to be inconsistent with constitutional values and principles.
Tries to merge two different historical approach- ubuntu with dignity
· Emphasis on respect for the dignity of the individual
· Articulation of ubuntu and the emphasis on the community
· What is the exact translation of Ubuntu?
· Through ubuntu a community itself has dignity
· Sets precedent for ubuntu in future cases , can be interpreted differently
· Case is decided on ubuntu and dignity, interpretative devices that it eventually reads the right to life precludes the death penalty
Lon fuller Rule of law 8 characteristics - inner morality of law
- expressed in general terms , general scope and application
- publicly promulgated
- promulgated in advance of commencement
- expressed in understandable terms
- consistent and not contradictory
- required conduct must be possible
- stability
- relation between wording of laws and application

s9 (1) and (2) of the constitution
Section 9(1) of the Constitution expresses the rule of law as equality before the law as well as equal protection and benefit of the law.
S9(2), however, recognises past injustices and provides that the achievement of equality must be promoted.
Ø Allows affirmative action and such as restitutional equality.
o The attainable ideal is that all laws should apply equally to all human beings
unless there is good reason to the contrary.
what is the counter majoritarian dilemma
Our constitutional court decides on the validity of laws
the counter majoritarian dilemma is the question why should unelected judges have the power to declare unconstitutional decisions of a democratically elected government
what is liberal democracy
Government needs enough power to govern but there needs to be structures that
prevent abuse of such power.
o Limitation of governmental power over citizens is called liberal democracy.
what is separation of powers
Separation of powers between the legislature, executive and judiciary look to secure the freedom of every citizen and avoid excessive concentration of power.
o There is, however, a necessary overlap of one branch over the terrain of another – it is a partial separation.
o Must also be careful not to water down power so much that timeous and decisive responses to situations are not possible.
