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CONSTITUTIONAL REVIEW
Email: pjayiya@parliament.gov.za
INTRODUCTION:
The intents and purposes of the State Constitution of a new South Africa are captured in the preamble to the Constitution and therefore serve as the objectives for the national plan of dealing with the injustices of the past. A new platform was created but after sixteen years into what was to be a new chapter we have not moved and inch towards the realization of the purports and objects founding the State Constitution of South Africa.
In reviewing the State Constitution, we, the members of the public are required to appraise and identify areas which we are of the considered view that they need be amended. From where I stand, in most of the cases of failures to effect the positive values founding our constitutional democracy lies with the implementation plan and that is to say it is government failure as defined by lack of conceptual understanding of politics thereby feeding prejudices in all tiers of government. The total result is the tension between the executive and the judiciary at times.
POLITICS AND ORIGINS OF LAW
Parliamentary sovereignty has its origins from the Graeco – Roman days with sovereignty being the power that is supreme and above the law in which the state and through parliament would assume the direction and supervision of society. This is how we ended up with parliamentary sovereignty that characterized our past and the injustices it brought to the people of South Africa in general and the Black people in particular. The people of the country would be recognised as legal subjects and with the law conferring legal capacity upon them in order for them to enjoy legal protection and benefit from the law. It is in this context of legal personality that we as Black people would be governed through Black Administrations Act.  
Through changes in our politics, the State Constitution of South would emerge with the adoption of the Constitution Act 108, 1996. This Constitution came about through engagements in the Convention for a Democratic South Africa (CODESA) and did not arise from parliamentary processes and would therefore be adopted as the supreme law by the Constituent Assembly with authority from the free will of the people of South Africa. The Constitution, with human rights entrenched in it cannot be the source of our law but founds our common law much as it is its origin as the Bill of Rights would confirm. 
The Constitution would then identify itself as the supreme law of the Republic such that law or conduct inconsistent with it is invalid and that obligations imposed by it must be fulfilled.
Constitutional democracy juxtaposed with the parliamentary sovereignty readily rejects and condemns the previous regime as invalid. Rather, we are all recognised as citizens with equal rights. Such rights are so basic in all humans such that it applies to all law and binds the state institutions and organs alike. The era of legal subjects would be banished with the adoption of the Constitution of 1996; yet, in our statutes we still have Black Affairs Act of 1920 and Representation of Black Act of 1936.  
INSTITUTIONAL AND SYSTEMS FAILURE
Whichever way we look at it, our Parliament has failed the Constitution and the Black people in particular as we remain trapped in poverty which was visited upon us by the Roman Dutch law advocates and professors and who continues to wield such enormous power under the guise of separation of powers whenever they feel their fiefdom is challenged. Members of Parliament have failed to give effect to the rights in the Bill of Rights as is required of them and the reason is that Parliament has chosen to be driven by party politics as was the case under parliamentary sovereignty. This explains why parliament has never intervened and in its promulgation of its laws boldly state that Roman Dutch law is not our law let alone, common law.
REMEDIAL ACTION
In any system there are organs that constitute its functioning. The same applies to the constitutional organization where the executive authority would lie with the Executive, legislation with Parliament and judicial authority vested in our Courts. All these state institutions are established in terms of the Constitution and carry with them public service and administrative mandate. On being established, they are put on terms and are all bound by the Bill of Rights. 
In terms of the Bill of Rights, everyone has a right to access courts and enforce a right provided in the Bill of Rights. Do we have any enabling legislation with that regard? The result is that those of us who dare approach courts on that basis are ridiculed and humiliated by presiding officers who take offence in being engaging with what they call a layman. 
The layman recognition in itself refers to one’s standing in law and is inconsistent with the citizenship that is recognised by the Constitution as it also undermines the equality status provided in section 9 of the Constitution and it being a human right provision which binds the judiciary as the state institution. Who should be blamed when the very same court rules are acts of 1944 and 1959 for magistrates’ courts and Supreme Court respectively?
ADMINISTRATION OF JUSTICE
Let it be clear that Roman Dutch law is a vestige of the past political era and with constitutional jurisprudence ours is the human right that should be protected and must benefit from the law instead of law that determines the contents of a right. To this end, Parliament must on own accord amend offensive legislation if law commission is failing on that task. The administration of justice lies with the executive and courts are established to apply the law in adjudicating disputes. Elements of justice are clearly spelt out in section 33 of the Constitution as lawful, reasonable and procedural fairness such that when a court talks of interests of justice these are qualified with certitude.
This brings us to the amendments that should be effected in order for us to realize our freedom. Magistrates Courts should give way for Community Courts and traditional leaders should be accommodated in such structures as community leaders. This will be reciprocated by traditional leaders giving up political office and activities since they are the embodiment of cultural values and customs of the community. Secondly, High Courts must give way for Human Rights Courts with emphasis on human rights violations and compliance with the Bill of Rights. The Supreme Court of Appeal is not defined and should be scrapped altogether. The highest court would remain the Constitutional Court and whose emphasis would be the adjudication of all state obligations and political reviews brought before it. All these courts will reflect on access to courts and enforcements of rights before such courts by members of the community acting on their behalf or a group.
Prepared and presented by:
Thabang Victor Motsoeneng
4 Kirstenbosch Crescent
Northcliff Ext 19
1709
Johannesburg
Cell: 076 583 2308/ 082 746 5988
Email: motstv@yahoo.com