by Martin van Staden
“Die wysiging van die grondwet: die oorspoel-imperatief van artikel 1” by EFJ Malherbe, Professor in Public Law, Rand Afrikaans University, 1999, for the Journal of South African Law*
Professor EFJ “Rassie” Malherbe writes that that sections 1 and 74 of the Constitution are the most important provisions in the Constitution. Section 1 encapsulates the founding values of South Africa’s constitutional order, and section 74 provides for the amendment of the Constitution. Malherbe pertinently points out that section 1 of the Constitution cannot be seen in isolation; instead, it touches upon many other provisions throughout the highest law.
Malherbe notes, per section 74(1), how section 1 (and section 74) can only be amended with a 75% majority of the National Assembly, thus highlighting their importance. It is obvious why section 74 was entrenched in this way: to ensure that Parliament cannot get around the requirement to amend section 1 with 75%, by simply amending the very amendment provision itself with a two-thirds majority and giving itself the power to amend section 1 with a smaller majority.
Going into the history of the inclusion of section 1 in the Constitution, Malherbe notes that it was only in the final days before the Constitution was officially adopted, on 8 May 1996, that the text was added. To be sure, there was a provision containing founding values, but it was not entrenched at a higher amendment threshold until these changes were made.
But section 1 is not exhaustive as regards the underlying values of the Constitution. Malherbe points to the separation of powers, an independent judiciary, and the three spheres of government, as not being included in section 1, but still constituting obvious elements of South Africa’s constitutional order. Malherbe does add, however, that one can argue that section 1 contains various principles and values (including the aforementioned) by implication. Sans an independent judiciary, for instance, the supremacy of the Constitution provided for in section 1(c) would be ineffective. On the other hand, mentions Malherbe, it would be difficult to make an argument that the spheres of government dispensation set up by the Constitution are necessarily part of section 1 by implication.
Malherbe disagrees that section 1 is simply declaratory instead of enforceable. It would not make sense, he argues, for section 1 to be so much more entrenched than the remainder of the Constitution’s provisions, only for it to not be enforceable. What would the sense in such a move have been? Malherbe also argues that section 1 serves an important interpretive role.
Malherbe also responds to those who argue that section 1’s existence stands in the way of the basic structure doctrine being accepted in South African constitutional jurisprudence. He disputes this assertion. Malherbe himself does not necessarily endorse the basic structure doctrine, but argues that it would not make sense to regard mere entrenchment as meaning certain constitutional principles are not important enough to elevate to the level of basic structure. Indeed, the fact that it is entrenched is a good indicator that those principles might enjoy special protection.
To Malherbe, section 1 has a “spillover” or “radiating” effect on various other provisions of the Constitution, because those other provisions give effect to the values contained in section 1. Thus, if some other provision that is heavily entwined with section 1 is amended [take, for instance, the section 9(1) guarantee of equality, and the section 1(a) entrenchment of equality], Malherbe argues, it would also take a 75% majority in the National Assembly to amend that other provision (as opposed to the ordinary two-thirds majority prescribed in sections 74(2) and (3)). This would be the case if the amendment weakens such other provision. If, on the other hand, the amendment strengthens that other provision, the regular two-thirds majority would be sufficient.
Others argue that section 74 is explicit about amendments: Other provisions besides sections 1 and section 74 can be amended with a two-thirds majority, thus any notion of a spillover effect is stillborn. But Malherbe notes that the spillover effect is the only logical interpretation of the stronger entrenchment of section 1. If there is no spillover effect, then the stronger entrenchment of section 1 would be easily underminable, as Parliament can simply weaken the various other provisions throughout the Constitution that give effect to section 1 values through its two-thirds majority, thus rendering section 1 useless. [I might add, although Malherbe does not make this point explicitly, that this would be even more the case if we conclude that section 1 itself is not directly enforceable.]
Malherbe notes that the spillover effect should be approached with care. Those provisions that do not obviously give effect to the values contained in section 1, can also be amended in such a way that in fact weakens the values in section 1. Thus he warns against a formalistic application of section 1 and the provisions that it obviously touches. In other words, the indirect influence of section 1 must also be factored in. Therefore, every constitutional amendment, argues Malherbe, should be tested against section 1, to ensure the correct National Assembly-majority is employed for its adoption.
Malherbe proceeds to consider the specific values contained in section 1.
On the value of a “democratic state”, Malherbe writes that an argument could be made that every single provision in the Constitution is concerned with democracy in some form or another. But certain provisions are of notable importance to the entrenchment of a democratic order.
On the values of “human dignity” and “equality”, Malherbe writes that every amendment of the Bill of Rights that touches (but moreover, weakens) the principles of dignity and equality would need to be tested against section 1. Along with “freedom”, these two values make up core concepts in the Bill of Rights. In other words, argues Malherbe, the whole Bill of Rights is sheltered by section 1. [Although, remember, this is not to say that Malherbe regards section 74(2) as redundant. The Bill of Rights is still amendable by a two-thirds majority — unless that amendment weakens a right, rather than modifies it.]
Malherbe notes that freedom, dignity, and equality as a tripartite set of values form the standard against which limitations to rights must be measured, in section 36(1) of the Constitution. [Might an argument be made that section 36(1) has been incorporated into section 1 by reference? Thus, when dealing with the section 1(a) tripartite values of freedom, dignity, and equality, one can use section 36(1) to determine whether there has been an infringement?]
Very pertinently, Malherbe writes that any amendment to the Constitution, and particularly the Bill of Rights, that hampers, weakens, or undermines the “advancement of human rights and freedoms” (section 1(a)), would need to pass with a 75% majority, because of its deleterious effect on section 1. Malherbe makes the examples of the scrapping of a right, changing section 36 (the general limitations provision) to make limiting rights easier, or implementing procedures that make it more difficult to vindicate constitutional rights.
On the values of “non-racialism and non-sexism”, Malherbe writes that any amendment to the Constitution that differentiates between people based on race or sex would need to be tested against section 1, to determine whether they negatively influence these values.
On the values of a single voters’ roll and universal adult suffrage, Malherbe argues that amendments to the the provisions dealing with the electoral system would need to be subjected to a section 1 analysis.
On the value of a “multi-party system of democratic government”, Malherbe argues that political parties must be able to function independently. He notes the Bill of Rights’ guarantees of free political activity.
Malherbe concludes his article by noting the Constitution would be toothless unless the values contained in section 1 could be materially enforced. Section 1 is thus very rigidly entrenched to ensure that it will be so enforced, and not likely be weakened.
* This summary is not meant to be comprehensive. Rather, these are the points I found pertinent or important to my work and/or jurisprudential interests. It goes without saying that I accept no liability for reliance on this summary, and I strongly recommend the original source be consulted directly before my notes are referenced.