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Understanding South African Government

The Constitution and the Bill of Rights
The Three Branches of Government
The Three Spheres of Government
Democracy and Public Participation

The Constitution and the Bill of Rights

In 1993 South Africa adopted an interim Constitution which outlined the framework upon which a final constitution would be based. In 1996, after two years of public consultation and debate, South Africa adopted its new Constitution, which came then into effect on 4 February 1997.

The Constitution is the supreme or highest law of the land. It states that South Africa is a constitutional democracy - that is, the rules in the Constitution protect democratic principles. Everyone must act according to the Constitution, and all other laws must follow it (that is, no law may be made that disagrees with it). Not even the President can act against the Constitution. Everything that happens in South Africa may be tested against the Constitution to see whether it is constitutional or unconstitutional.

Before the Constitution was adopted, Parliament was supreme and could make any law it wanted to, even if the law took away people's basic human rights, such as the right to a fair trial. The Constitution now includes a Bill of Rights which upholds people's basic human rights. This Constitution can only be changed if a large majority of Members in Parliament agree.

Constitutions contain the rules setting out how countries must be managed or governed. The South African Constitution has three main functions:
it sets out the system of government; protects democratic principles and it protects the rights of people in South Africa.

Setting out the system of government

The Constitution outlines the powers, functions and responsibilities of the three branches of government: the legislature, the executive and the judiciary.

Protecting democratic principles

The Constitution identifies and protects the democratic principles on which our system of government is based:

  • South Africa is a democracy
    The first rule of democracy is that elections must be held regularly. The Constitution stipulates that an election must be held at least every five years, in which everybody over 18 years of age may vote for the political party they support. The party that wins the most votes is known as the "ruling party" and is responsible for setting up the government.
  • The Constitution itself is protected

As the Constitution itself is protected, it is much more difficult to change it than it is to change an ordinary law. Parliament can usually change laws if more than 50% of the Members of Parliament (MPs) who are present support the change - as long as there is a quorum (i.e. the minimum number of people required to make a decision are present).

To change the Constitution, however, at least 662/3% (and in some sections, even 75%) of the total number of MPs must agree.

Independent courts, particularly the Constitutional Court, protect and enforce the Constitution. The courts have the power to force even the President or Parliament to abide by the Constitution.

  • Our Constitution recognises the doctrine of the separation of powers

There are three separate branches of government, each with their own functions:

- the Executive (the Cabinet, the nine provincial Executive Councils; and the public service);

- the Legislature (Parliament and the provincial legislatures); and

- the Judiciary (the courts).

By ensuring that power is divided among these separate branches of government, the Constitution avoids concentration of too much power in one place. This separation is called the principle of "separation of powers".

Section 3 of the Constitution on Co-operative Government obliges these different branches of the government to co-operate in mutual trust and good faith.

Protecting the rights of people

Chapter Two of the Constitution contains the Bill of Rights which lists rights and responsibilities which apply to everybody in South Africa. The Bill of Rights protects people against the abuse of human rights by government and/or by other people/bodies.

Among the rights contained in the Bill of Rights are the rights to freedom, equality and human dignity, the right to free speech, the right to fair labour practices, the right to vote in elections and so on. These are the natural rights that occur in most democratic constitutions all over the world and are intended to ensure democracy and freedom.

The inclusion of socio-economic rights is an important aspect of the South African Constitution, and in including them, this country is taking a lead in the world. These rights are called socio-economic rights because they place an economic responsibility on the government to work towards meeting the basic needs in society and improving the quality of ordinary people's lives. They include the right to education, the right to access to health care services, housing, water and social security and the right to an environment that is not harmful to people's health.

Other rights included in the Bill of Rights are the right to information and the right to fair administrative action. Vulnerable groups such as children are also specifically protected under this Bill.

The Constitution establishes several independent bodies to help citizens enforce their rights - for example the Human Rights Commission, the Public Protector and the Commission on Gender Equality.


The Three Branches of Government

The Executive

The Executive consists of

  • the Cabinet (i.e. the national executive);
  • national government departments;
  • the provincial executives; and
  • provincial departments.

The Cabinet is headed by the President and includes a Deputy President and Ministers.

In the provinces, the provincial executive is usually known as the Executive Council. It is headed by the Premier and includes the provincial ministers known as the Members of the Executive Councils (MECs).

The members of the National Assembly elect the President from among themselves after they have been sworn in as members. The Members of the Provincial Legislatures (MPLs) follow a similar process to elect their Premiers.

The responsibility of the Executive is to run the country and to make policy in the best interests of its citizens and in terms of the Constitution. They are empowered to implement legislation, develop and implement policy, direct and co-ordinate the work of the government departments, prepare and initiate legislation and perform other functions as called for by the Constitution or legislation.

The Executives cannot pass laws, however. They may propose new laws as well as changes to existing laws to the Legislature. If these laws are passed by the Legislature, the Executive's responsibility is to ensure that they are implemented to their full effect.

Both the national and provincial Executives and the departments for which they are responsible are answerable [accountable] to their legislatures because the legislature appoints the executive. It is the responsibility of the legislatures to oversee the work of the executive and to ensure that it implements the laws and policies that parliament has chosen. Legislatures must approve their annual budgets; and can call the Executive to account for the performance of their duties and their implementation of policy and laws. In holding the Executive to account, Legislatures are performing their "watchdog" or oversight function.

The Legislature

A legislature is composed of political representatives who are elected to represent the people. It provides a forum for the public debate of issues; it passes or amends laws and it oversees the executive arm of government.

At the national level, the legislature is Parliament which is composed of the National Assembly and the National Council of Provinces (NCOP). In each province there is a Provincial Legislature.

In both national and provincial legislatures, all Members of Parliament (MPs) and Members of Provincial Legislatures (MPLs) are required to ensure that the Executives act within the confines of the laws they adopt. This "oversight function" is undertaken in several ways. The following are some of the oversight mechanisms the legislature uses:

  • passing the annual budget, which allocates funds to government departments. (This is the most direct way of holding an Executive to account.)
  • asking questions of Ministers or Members of the Executive Council (MECs) which have to be replied to in public at a formal sitting of the legislature; and
  • having committees investigate any aspect of how government departments function and, where necessary, having them call any departmental official, Minister or MEC to appear before the Committee to supply information.


The Judiciary

The third branch of government is the Judiciary, which is responsible for checking whether or not the laws comply with the Constitution. They must also decide whether a law has been broken, and if so, what must be done.

The Judiciary is composed of various courts, judges and magistrates. A new and significant aspect to the Judiciary that was created after the 1994 elections is the Constitutional Court. It deals specifically with ensuring that the laws comply with the Constitution.


The Three Spheres of Government

The Constitution divides government into three tiers or levels in order to develop a closer relationship between the government and the people that it serves. These are

  • local government;
  • provincial government; and
  • national government.

Ultimately the purpose of these three tiers is to make government more effective by taking it closer and making it more accessible to the people.

Powers and functions

The powers and functions of each sphere are defined by the Constitution. National government deals with matters which affect the whole country, while provincial government deals with issues that affect the provinces. Each province is divided into a number of municipalities run by local authorities who are responsible for the management of their local area.

Citizens vote for representatives at each level of government and are thus able to have a say in how each of these three spheres of government should be run. Moreover, the Constitution states that once elected the national parliament and provincial legislatures must facillitate public participation so that citizens can continue to have their voices heard between elections. Often this is arranged by having public hearings in parliament. It the responsibility of the members of parliament to listen to what citizens have to say about the various laws or policies that are being considered.

Chapter 3 of the Constitution indicates that all three spheres are obliged to work together in mutual trust and good faith. This is called Co-operative Government, and states that intergovernmental relations should be friendly, supportive and consultative and the three spheres should avoid legal proceedings against one another.

1. National government takes exclusive responsibility for matters relating to foreign affairs, defence, intelligence, tertiary education, national transport and national taxation.

2. A province can either be solely responsible for an issue, or can share responsibility with the national government. In these instances the province is said to have either "exclusive areas of competence" or "shared areas of competence". The Constitution stipulates which matters are to be dealt with exclusively and which are to be shared.

  • Exclusive areas of competence include ambulances, libraries, liquor licences, provincial roads, recreational amenities and provincial sport (listed in Schedule 5 of the Constitution).
  • Shared areas of competence (also referred to as "concurrent areas of competence") include agriculture, schools, police, public transport and health and welfare services (listed in Schedule 4 of the Constitution).

3. Local government is responsible for issues such as cleansing, sewerage and traffic as well as the development of their communities.

Elections and representation

Elected representatives in the national and provincial spheres are elected for a term that lasts a maximum of five years. In these spheres, an election must be held within ninety days of a legislature ending its term or of it being dissolved.

Whether a legislature runs its full term or it is dissolved, the President must call and set dates for national elections and the Premier of each province must call and set dates for a provincial election. National and provincial elections have thus far taken place at the same time, though this is by co-operative agreement and is not specifically required by the Constitution.

1. At the national level political parties appoint representatives from party lists as Members of Parliament (MPs) in the National Assembly, according to the proportion of votes the party received nationally. Half of the seats (200) are chosen from a single national list, while the other half are filled from regional lists. The regional lists ensures that there is regional or provincial representation in the National Assembly.

2. At the provincial level, the voters in each of the nine provinces vote for political parties which then appoint people from party lists to represent them in that provincial legislature.

Some Members of Provincial Legislatures (MPLs) go to Cape Town to represent provincial matters at national level. They do this in the National Council of Provinces (NCOP) based at Parliament. Ten members (six permanent delegates and four special delegates including the Premier) form each provincial legislature's NCOP delegation. They are chosen in proportion to the representation of political parties in each provincial legislature.

Permanent delegates to the NCOP are chosen either from the Members of the Provincial Legislature (MPLs) or from provincial party lists. If MPLs are chosen they cease to be Members of the Provincial Legislature and have to be replaced from party provincial lists.

3. At the local level, voters in rural areas, towns and cities vote for political parties and individual candidates in local government elections. Currently 60% are elected as individual candidates and 40% by proportional representation but the Municipal Structures Act changes this to 50% for both in the next election (due between 1 November 2000 and 31 January 2001) in order to promote the representation of women in local government.

Those who are elected form local councils known as Municipal Councils that govern that local area. Laws written by a Municipal Council are called by-laws. Municipal councils are elected every five years.


Democracy and Public Participation

The Constitution makes it clear in a number of sections (sections 59 and 72 in Chapter 4 and section 118 in Chapter 6) that all citizens must have a chance to say what should be included in laws and how government should work in all three spheres. It states that all legislatures - the National Assembly, the National Council of Provinces (NCOP) and all the provincial legislatures - "must facilitate public involvement in the legislative and other processes…..".

While elections are an important way of participating in government, they only take place every five years (nationally and provincially). Between elections, citizens need to ensure that the party they elected continues to govern as they promised and continue to listen to them. They do this through "public participation" and "public involvement" initiatives and processes.

Parliament and most provincial legislatures have public participation officers or departments. Their role is to promote public participation and assist people, especially under-resourced communities, with the information and skills they need in order to participate.

To facilitate this participation and involvement, all legislatures are required to conduct their business in an open and transparent manner. Citizens have a right to attend all the meetings of the Parliamentary Committees and all the sittings of the National Assembly and NCOP and of the provincial legislatures. Access can only be denied when there are reasonable and justifiable reasons for doing so.

Ways of participating in law-making include making submissions and petitions.

  • A submission is a verbal or written report by a person or organisation on a proposed new law or policy. Public hearings are often set up to hear these submissions.
  • Petitions are written requests or complaints made by one or more members of the public.

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This information compiled with the support of the European Union Parliamentary Support Programme (EUPSP)