South Africa's politics: the constitution a court refused to certify

Why the rules were written before the vote

Formal negotiations to replace apartheid opened in December 1991 at the Convention for a Democratic South Africa, and the argument that broke them apart was procedural. The African National Congress held that a new constitution had to be drawn up by a democratically elected constituent assembly. The governing National Party, which said it feared that minority rights would go unprotected in such a body, wanted the text negotiated by consensus between the parties and then put to a referendum. The talks collapsed after the second plenary session in May 1992, and one of the sticking points was a number: the National Party wanted a 75% supermajority for adoption, which would have handed it a veto over the result.

The parties returned in April 1993 as the Multi-Party Negotiating Process, and a committee there produced the compromise the whole system now rests on. The constitution would be written after the election, by an assembly the electorate chose. It would also have to comply with a list of principles agreed before the election, by the people already at the table. Thirty-four of those principles went into the Interim Constitution of 1993, which came into force on 27 April 1994, the day of the first election held under universal adult suffrage.

The principles were specific. They required multi-party democracy with regular elections, supremacy of the constitution over all other law, a quasi-federal division of power in place of a centralised state, non-racism and non-sexism, equality before the law, separation of powers with an impartial judiciary, provincial and local government with democratic representation, and protection for the diversity of languages and cultures. The Bill of Rights that grew out of them was written largely by Kader Asmal and Albie Sachs.

The same Interim Constitution created the Constitutional Court and handed it the job of measuring the finished text against that list. A text that complied became the constitution. A text that did not went back to the assembly to be done again.

What the court sent back to be rewritten

The Constitutional Assembly was both houses of the interim parliament sitting together, and it needed a two-thirds majority to adopt a text. Failing that it could adopt one by simple majority and put it to a national referendum, where 60% support would have carried it. It ran a large public participation programme, and settled the hardest questions in private meetings between party representatives as the deadline approached. On 8 May 1996 it adopted a text with the support of 86% of its members.

Four months later the court refused to certify that text. The First Certification judgment, delivered on 6 September 1996, listed what was missing. The draft failed to protect the right of employees to bargain collectively. It failed to provide for constitutional review of ordinary statutes. It failed to entrench fundamental rights, freedoms and civil liberties firmly enough, and it failed to safeguard the independence of the Public Protector and the Auditor-General. Local government powers and responsibilities were also found wanting.

The assembly reconvened and adopted an amended text on 11 October 1996, some of it answering the court and some of it tightening wording the court had left alone. The Second Certification judgment of 4 December certified the rewrite. The constitution was signed on 10 December 1996, published in the Government Gazette on 18 December, and brought into operation by presidential proclamation on 4 February 1997, with certain financial provisions held back until 1 January 1998.

That sequence put a court inside the founding act itself, and the habit stuck. The finished document runs to a preamble, fourteen chapters containing 244 sections and eight schedules, and eighteen amendments have been passed since 1997. It is published in all eleven official languages, and where the versions conflict the English text governs. The superior courts can strike down executive actions and acts of Parliament that conflict with it.

Where Parliament sits and what it does

Parliament has two chambers holding 490 seats between them under the 1996 constitution. The National Assembly holds 400 of those and is elected every five years by party-list proportional representation, with seats allocated in proportion to the national vote. It controls the composition of the government and its approval is required for most bills to become law.

The National Council of Provinces holds the other ninety, ten for each of the nine provinces, and it is chosen by the provincial legislatures instead of by voters. Each delegation is six permanent delegates appointed by the provincial legislature and four special delegates, one of them the province's premier, rotated according to the subject in front of the chamber. Its approval is needed for laws that affect the provinces and for laws touching cultural, religious and linguistic communities. Organised local government sends ten representatives through the South African Local Government Association, who may take part in debate and may not vote.

Amending the text takes two-thirds of the National Assembly, which is at least 267 of the 400 members. Where an amendment touches provincial powers, provincial boundaries or the Bill of Rights, six of the nine provinces in the upper house have to agree as well. Amending section 1, the clause declaring South Africa a sovereign democratic state and setting out its founding values, takes three-quarters of the Assembly.

Both chambers sit in Cape Town and the rest of the state sits elsewhere, because the country has no legally defined capital city. Chapter 4 makes Cape Town the seat of Parliament and allows an act of Parliament to move it. The president and cabinet work from Pretoria, the administrative capital, where most foreign embassies are also found. Bloemfontein holds the Supreme Court of Appeal and is treated as the judicial capital. The Constitutional Court, the highest court for constitutional questions, has sat in Johannesburg since 1994.

Why the president is elected by Parliament

There is no separate presidential election. After each general election the National Assembly chooses one of its own members as head of state and head of government, for a term matching the Assembly's own, and nobody may hold the office for more than two terms. By convention the Assembly elects the leader of the party holding the most seats in it. The Assembly can also remove the holder and the whole cabinet by passing a motion of no confidence.

That merges two offices most parliamentary republics keep apart, and the merger was not drafted in the 1990s. It was made by the Republic of South Africa Constitution Act of 1983, which folded the ceremonial State President and the executive Prime Minister into a single executive State President chosen by parliament. The same 1983 act built the tricameral parliament, with separate houses for whites, Coloureds and Indians and no representation at all for black South Africans, and it was approved in a whites-only referendum. The negotiators of the 1990s kept the shape of the office and replaced the electorate that filled it. Among parliamentary republics the arrangement is unusual, and neighbouring Botswana is the closest parallel.

The consequence runs through everything else. Executive power in South Africa derives entirely from the composition of one chamber. There is no directly elected office to appeal over the heads of the parties with, no second mandate to claim, and a president who loses the Assembly loses the government in the same motion. Ministers are appointed from the Assembly, run departments, and answer to it through portfolio committees, question sessions and written replies recorded in Hansard, the official record of parliamentary debate.

How the nine provinces hold power

Each province has a single elected chamber, chosen every five years by party-list proportional representation, which elects a premier as head of the provincial executive. The premier appoints an Executive Council as a provincial cabinet. Provincial powers are listed instead of assumed: Schedule 5 of the 1996 constitution sets out what a province alone may legislate on, Schedule 4 sets out what it shares with the national government, and the text says which law prevails when the two collide. Chapter 6 is a template a province may modify by adopting a provincial constitution of its own, and the Western Cape is the only one to have done so.

Those figures come from the census of 2022 and the mid-year estimates of 2024, and the spread inside them is the reason the upper house is built the way it is. Gauteng covers 18,178 square kilometres and holds a quarter of the population. The Northern Cape covers 372,889 square kilometres and holds 2.2% of it. Each sends ten delegates to the National Council of Provinces, which is the quasi-federal principle from the 1993 list working exactly as written.

Below the provinces sit 52 districts, eight of them metropolitan municipalities and 44 of them district municipalities, and the district municipalities divide again into 205 local municipalities. Chapter 7 of the 1996 constitution requires municipal elections every five years and requires that municipalities cover the whole territory, so no part of the country is left outside local government. Chapter 12 recognises traditional leaders and customary law, subject to the constitution, and allows provincial houses of traditional leaders and a national council of them, which places an older layer of authority alongside the elected one.

Which bodies were built to check the state

Chapter 9 creates seven institutions whose job is to hold the government to account: the Public Protector, an ombudsman; the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor-General; the Independent Electoral Commission; and the Independent Communications Authority. Two of those, the Public Protector and the Auditor-General, are the ones whose independence the court found inadequately protected when it refused the first draft in September 1996.

The courts run from the magistrates' courts, which hear lesser criminal matters and smaller civil claims, through the divisions of the High Court, each covering a geographic region, to the Supreme Court of Appeal for matters that are not constitutional and the Constitutional Court for those that are. The Constitutional Court can rescind a law that conflicts with the constitution. Judges are appointed by the president on the advice of the Judicial Service Commission, and a single National Prosecuting Authority is responsible for all criminal prosecutions.

Chapter 2 is the Bill of Rights, and most of what it guarantees applies to anybody in the country rather than to citizens alone. The exceptions are the vote, the right to work and the right to enter South Africa. Alongside the familiar civil and political rights it guarantees access to food, water, health care, social assistance, housing and basic education, which the state must progressively realise within the limits of its resources. Those provisions have teeth: in 2003 the Treatment Action Campaign used them to force a change in government policy on HIV and AIDS. A right may be limited only by a law of general application, and only so far as the limit is reasonable and justifiable in an open and democratic society. Same-sex marriage was made lawful in 2006.

What changed when one party lost its majority

Elections have been held every five years since the first non-racial vote in 1994, in 1999, 2004, 2009, 2014, 2019 and 2024. Between 2002 and 2008 elected members could change party and keep their seats during floor-crossing windows that opened twice a term, the last of them in 2005 and 2007, before the practice was legislated away. The National Party's successor, the New National Party, disbanded in 2005 and merged into the African National Congress, so the party that built apartheid and the party that dismantled it ended in the same place. The Congress of South African Trade Unions and the South African Communist Party sit in a formal alliance with the African National Congress and do not contest elections separately.

The African National Congress lost the two-thirds majority that had let it amend the constitution on its own in 2009. It lost the ordinary majority on 29 May 2024, taking 40.18% of the vote and 159 seats. The Democratic Alliance took 21.81% and 87 seats, uMkhonto weSizwe took 14.6% and 58 seats, and the Economic Freedom Fighters took 9.5% and 39 seats.

Because the Assembly elects the executive, an Assembly with no majority in it has to settle the arithmetic before a government can exist at all. What followed the 2024 election was a multi-party coalition described as a Government of National Unity, the second to carry that name. The first was written into the Interim Constitution, shared executive power between the African National Congress, the National Party and the Inkatha Freedom Party, and lost one of its three members on 30 June 1996, when the National Party walked out to sit in opposition.

What South Africans say is wrong

Afrobarometer polling in 2026 found the issues people named most often were unemployment, crime, infrastructure and corruption, and recorded rising dissatisfaction with the way democracy is working. The Economist Intelligence Unit classified South Africa a flawed democracy in 2022. On the Ibrahim Index of African Governance for the same year the country scored well on rule of law, transparency, corruption, participation and human rights, and scored low on safety and security.

Protest is the other constant. Since 2004 the country has recorded many thousands of popular protests, some of them violent. There have also been incidents of political repression and threats of more, which analysts and civil society organisations have read as the beginning of a new climate around grassroots activism, and which the constitution's guarantees of assembly and association were written to prevent.

Turnout machinery, at least, is not the problem. The Electoral Commission put the roll at 29,231,364 registered voters when registration closed for the local government elections set for 4 November 2026, and it ran the 2021 local government elections across 23,148 voting districts, recording 425,472 spoilt ballots in them. Those are municipal contests, held on a different cycle from the national and provincial elections, so the two sets of ballots fall in different years.

Where South Africa stands in the world

As the Union of South Africa the country was a founding member of the United Nations, and its prime minister of the day wrote the preamble to the Charter. It withdrew from the Commonwealth of Nations on 31 May 1961 and was readmitted after apartheid ended, is a founding member of the African Union and of that union's New Partnership for Africa's Development, entered the World Trade Organization on 1 January 1995 and joined the BRICS grouping on 24 December 2010. It belongs to the Southern African Development Community, the Southern African Customs Union and the G20, and it chaired the Group of 77 in 2006.

Regional work has been the practical expression of that. South African governments have mediated in conflicts in Burundi, the Democratic Republic of the Congo, the Comoros, Mozambique and Zimbabwe. The South African National Defence Force, assembled in 1994 out of the old defence force and several liberation movement armies, deployed as a leading contributor to United Nations and African Union missions in Burundi in 2001, the Democratic Republic of the Congo in 2003 and Sudan in 2004, and has since operated in Lesotho and Mozambique. It counted close to 100,000 personnel in 2025.

One decision defines the country's standing on the hardest question of all. Between 1980 and 1990 South Africa covertly assembled six nuclear devices, then dismantled the arsenal in 1991 before the transition, which made it the first country to relinquish a nuclear capability it had built. Enriched uranium from the programme is still held at the Pelindaba research centre and is used for civilian research and medical isotopes. South Africa ratified the United Nations Treaty on the Prohibition of Nuclear Weapons in 2019. The pattern of the settlement described in the country's history holds there as well: the terms were agreed and written down first, and the machinery was handed over afterwards.