CONSTITUTION OF SOUTH AFRICA

PRESENTED BY:VIKAS SAINISARANG GUPTA

CONSTITUTIONAL HISTORY AND DEVELOPMENT

South Africa’s constitutional history and development can be divided into three key phases: •The period between 1909 and 1910, •The period 1910 and 1996,•The period 1996 to present.

The constitution of South Africa was formulated in year 1994 and was opened by the president Nelson Mandela in year 1996.Nelson Mandela is basically the Gandhi of South Africa. He was at the forefront of the South African people's fight for independence and racial equality.

Preamble

We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to:

•Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

•Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

•Improve the quality of life of all citizens and free the potential of each person; and

•Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people.

KEY VALUES

• Human dignity, equality, advancement of human rights and freedoms• Non-racialism and non-sexism• The constitution and rule of law will be supreme• Common voter's roll regular elections• There will be a multi-party system of democratic government to make sure there is

accountability and opennessThis chapter also talks about citizenship, the national flag, the national anthem and official languages

THE BILL OF RIGHTSThese are put in the constitution for these reasons: • To make them law so that people can use them in court to protect themselves; • To make them difficult to change;

The bill of rights can only be changed by a bill passed by: • The national assembly, if at least two-thirds (66%) of the members of parliament vote for

it.• The national council of provinces, if at least 6 provinces vote for it.

The constitution also states that the government must respect, protect, promote and fulfil the rights in the bill of rights.

The Bill of Rights applies to all laws. It must be followed by all branches of government and all government bodies. This means it must be followed by: •the legislatures (bodies that make laws); •the executive (bodies that carry out the laws); and •the judiciary (the courts)

THE RIGHT TO EQUALITY• Everyone is equal before the law and has the right to equal protection and benefit of the

law. • The government must take active steps to change the inequalities of the past. • It is against the law to discriminate against anyone on any grounds LIKE race and colour sexual orientation, marital status, gender, pregnancy, Age, Disability, ethnic origin, culture, language, religion, conscience, belief, birth

THE RIGHT TO HUMAN DIGNITYEveryone has dignity and the right to have their dignity respected and protected.

THE RIGHT TO LIFEEveryone has the right to life.

No form of slavery or forced labour is allowed. SLAVERY, SERVITUDE AND FORCED LABOUR

• Freedom and security of the person• Right to privacy• Freedom of religion, belief and opinion• Freedom of speech and expression• Freedom of assembly, demonstration, picket and petition• Freedom of association• Political rights• Citizenship• Freedom of movement and residence• Freedom of trade, occupation and profession• Right to fair labour practices• Right of access to housing• Right of access to health care, food, water and social security• Children's rights• Right to education• Access to information• Access to courts• Right to property

OTHER RIGHTS :

Municipal Planning• Municipal Planning is a function assigned to municipalities in terms of section 156

of the Constitution of the Republic of South Africa Part B of Schedule 4 and in terms of which municipalities have both executive authority and a right to administer to the extent set out in Section 155.

• “planning” in the context of municipal affairs is a term which has assumed a particular, well established meaning which includes the zoning of land and the establishment of townships. the term is commonly used to define the control and regulation of the use of land.”

• Under the 2000 re-demarcation of the country “wall-to-wall” municipalities were created thereby including all intervening land between the towns or former transitional local councils, i.e. including the tribal areas and the commercial farmland.

Legal framework of planning• There is a array of legislation that controls planning within the geographic

boundaries of the Republic of South Africa. Some of the most important are as follows: -

• Constitution of RSA No 108 of 1996 – the primary role being the assigning of municipal planning responsibility to municipalities.

• Municipal Systems Act No 32 of 2000 – setting out in Chapter 2 the requirement, amongst other, for newly elected municipal councils to prepare and adopt an integrated development plan (IDP) for their respective areas and to provide for annual revision thereof. The IDP is required in terms of the act to include a spatial development framework (SDF) which must include the provision of basic guidelines for a land use system for the municipality.

• Development Facilitation Act No 67 of 1995 (DFA) – Accelerated housing delivery by waving other legislation and giving decision

making to provincial Development Tribunals (where established), but utilized to a large extent by the private sector for the development of amongst others, shopping centres, golf course estates, etc.

• Less Formal Township Establishment Act No 113 of 1991 – This act provides for shortened procedures for the establishment of townships,

for less formal forms of residential settlement and to regulate the use of land by tribal communities for communal forms of residential settlement.

This act is administered by the provinces and it provides for the exclusion of certain laws and the suspension of servitudes and restrictive title deed conditions.

• Planning Acts and Ordinances in the provinces –

The majority of legislation directly controlling planning in the nine provinces is still pre-1994 legislation enacted by the original four provinces of South Africa and they are all also generally unconstitutional in some or other aspect.

Only in KwaZulu-Natal and in the Northern Cape has new planning legislation been enacted and put into effect since 1994 and even here certain aspects (relating to appeals) are challengeable. Some of the other provinces are in the process of drafting new planning legislation.

As a result of the Constitutional Court ruling with respect to the DFA and the tardiness of the preparation of the new legislation in some provinces.

The Department of Rural Development and Land Affairs recently published the Spatial Planning and Land Use Management Bill.

Other Legislation affecting Planning :

• Subdivision of Agricultural Land Act 70 of 1970.• National Building Regulation, Act 103 of 1977• Physical Planning Act No 125 of 1991.• Housing Act No 107 of 1997.• National Environment Management Act No 107 of 1998 (NEMA) and its suite of

associated Acts viz. NEM: Protected Areas Act, 2003; NEM: Biodiversity Act, 2004; NEM: Air Quality Act, 2004; NEM: Integrated Coastal Management Act, 2008; NEM: Waste Act, 2008.

• National Heritage Resources Act No 25 of 1999• Promotion of Administrative Justice Act No 3 of 2000.• Planning Professions Act No 36 of 2002.• Social Housing Act of No 16 of 2008.• National Land Transport Act 5 of 2009.

Comparison with India• Just as the Indian Constitution lists the fundamental right (FRs) that are available

to the people of India under its Part III, the South African Constitution contains analogous rights in Chapter 2 titled Bill of Rights (BoRs). The following are some similarities and dissimilarities between the FRs and BoRs:

• Similarities:(1) Both FRs and BoRs form the bedrock of the constitution and democracy under the Indian and SA Constitutions respectively.

(2) Just as the FRs under Indian Constitution, the BoRs under the SA Constitution are available against the State. In fact some limited rights under both Constitutions are available against private citizens also.

(3) Under both Constitutions, while most rights are available to citizens alone, some universally recognized rights such as the right to life and equality are available to all persons.

• Differences:(1) The SA Constitution was framed in 1996, it had the benefit of hindsight and was able to learn lot more from experiences of other vibrant democracies like India. For e.g., rights such as the right to privacy and the right to healthy environment which had to be read into FRs in India by the judiciary are explicitly mentioned in the BoRs.

(2) Right to vote which finds a place in the BoRs is only a statutory/legal right in India i.e., it does not have the status of a FR.

(3) Right to property, which finds a place in the BoRs, was removed from Part III of the Constitution by the 44nd Constitutional Amendment and has been placed under Art 300A thereby reducing its status to that of a legal right.

(4) Right to information, which is included in BoRs, is only a statutory right in India.