South Africa's 1996 'Final' Constitution is widely recognised as the crowning achievement of the country's dramatic transition to democracy. This transition began with the unbanning of the liberation movements and release of Nelson Mandela from prison in February 1990. This book presents the South African Constitution in its historical and social context, providing students and teachers of constitutional law and politics an invaluable resource through which to understand the emergence, development and continuing application of the supreme law of South Africa. The chapters present a detailed analysis of the different provisions of the Constitution, providing a clear, accessible and informed view of the constitution's structure and role in the new South Africa.
The main themes include: a description of the historical context and emergence of the constitution through the democratic transition; the implementation of the constitution and its role in building a new democratic society; the interaction of the constitution with the existing law and legal institutions, including the common law, indigenous law and traditional authorities; as well as a focus on the strains placed on the new constitutional order by both the historical legacies of apartheid and new problems facing South Africa. Specific chapters address the historical context, the legal, political and philosophical sources of the constitution, its principles and structure, the bill of rights, parliament and executive as well as the constitution's provisions for cooperative government and regionalism. The final chapter discusses the challenges facing the Constitution and its aspirations in a democratic South Africa.The book is written in an accessible style, with an emphasis on clarity and concision. It includes a list of references for further reading at the end of each chapter.
Heinz Klug is Evjue-Bascom Professor of Law and Director of the Global Legal Studies Center at the University of Wisconsin Law School and an Honorary Senior Research Associate in the School of Law at the University of the Witwatersrand.
1. THE CONSTITUTION OF SOUTH AFRICA: CONTEXT AND HISTORY I. Introduction: A Constitution in Context II. History III. Political Context IV. Conclusion: Context, Continuity and the Problem of Path Dependency Further Reading 2. DEMOCRATIC TRANSITION I. Introduction II. Negotiating the 1993 Interim Constitution III. The Role of Law in the Democratic Transition IV. The Practice of Transitional Law V. Conclusion: Transitional Law, Democratization and Justice Further Reading 3. SOURCES OF THE CONSTITUTION I. Introduction II. Constitution-Making and the Constitutional Assembly III. Legacies, Legal Traditions and the Limits of Path Dependency IV. Text and Legal Interpretation V. Conclusion Further Reading 4. CONSTITUTIONAL PRINCIPLES I. Introduction II. Constitutional Principles III. Constitutional Principles in The Constitutional Court IV. Constitutional Principles in Practice V. Founding Principles, Basic Structure and the Future VI. Conclusion Further Reading 5. THE BILL OF RIGHTS I. Introduction II. Constitutional Rights III. Interpreting the Bill Of Rights IV. The Bill Of Rights within the Frame of Dignity, Equality and Freedom V. Socio-Economic Rights VI. Bill Of Rights, Rule of Law and States of Emergency VII. Conclusion: Pursuing Rights in A Land of Vast Inequalities Further Reading 6. PARLIAMENTARY DEMOCRACY I. Introduction II. Electoral System, Political Rights and the Formation of Government III. Parliament as Law-Giver IV. Parliament As Watchdog V. Conclusion: Democratic Participation and the Challenge of Post-Apartheid Democracy Further Reading 7. EXECUTIVE GOVERNMENT I. Introduction II. The President III. Cabinet Government IV. Governing Principles, Independent Institutions and Executive Governance V. Conclusion Further Reading 8. CONSTITUTIONAL ROLE OF THE COURTS I. Introduction II. Historical Context III. Creation of the Constitutional Court IV. Strategic Engagement and Judicial Pragmatism V. Conclusion: Rights, Politics and the Margins of Judicial Power Further Reading 9. CO-OPERATIVE GOVERNMENT, REGIONALISM AND LOCAL GOVERNMENT I. Introduction II. Origins and Principles of Co-Operative Government III. Interpretation of Regional and Concurrent Powers IV. Local Government and Service Delivery V. Conclusion Further Reading 10. THE CONSTITUTION OF SOUTH AFRICA: FACING THE FUTURE I. Introduction II. Legacies of Inequality III. The Future of Rights IV. Democracy V. Conclusion Index