Changing South Africa’s Constitution

Pierre de Vos

South African President Cyril Ramaphosa, in his capacity as leader of the governing African National Congress (ANC), has announced that his party will spearhead an amendment to section 25 of the country’s Constitution to outline more clearly the conditions under which expropriation of land without compensation can be effected. He emphasised that the property clause in the Constitution already enables expropriation of land without compensation in the public interest. The proposed amendment would be aimed at putting this beyond any doubt.

But what is the process that would have to be followed for such an amendment to be passed?

Like all modern constitutions, the South African Constitution provides for its own amendment by Parliament and prescribes special procedures to effect them. The Constitution has already been amended 17 times since it came into force in 1996, following this prescribed procedure.

The procedure for amending the Constitution differs from the procedure to pass or amend ordinary legislation. It is more difficult to amend the Constitution than it is to pass or amend ordinary laws. This is because the Constitution is the supreme law of the Republic.

Section 74(2) of the Constitution allows Parliament to amend any provision in the Bill of Rights – including section 25. But this cannot be done by a simple majority vote as would be the case for ordinary legislation. A Bill amending any provision of the Bill of Rights must be passed by the National Assembly, with a supporting vote of at least two thirds of its members, and by the National Council of Provinces, with a supporting vote of at least six of the nine provincial delegations.

This means that at least 266 members of the national assembly must support the amendment. The additional requirement that six of the provincial delegations in the National Council of Provinces must support the Bill in effect means that the party – or parties – wishing to amend the Constitution must control at least six of the nine provincial legislatures. This is because provincial legislatures give each provincial delegation to the National Council of Provinces a mandate on how to vote on constitutional amendments.

Some commentators have argued that an amendment to section 25 of the Constitution would have to be supported by at least 75% of the members of the National Assembly.

But this is incorrect, and confuses two things. It’s true that the founding values in the Constitution – set out in section 1 – can only be amended with a supporting vote of 75% of the members of the Assembly. But, as long as an amendment doesn’t affect the values in section 1 (specifically the Rule of Law) by allowing the arbitrary expropriation of property, a 75% majority wouldn’t be required

Apart from the increased majorities required to pass an amendment to section 25, the Constitution also prescribes other procedure that must be followed for an amendment.

A Bill amending the Constitution can’t include provisions other than constitutional amendments and matters connected with the amendments. This means a constitutional amendment may not be included in another Bill dealing with other matters to secure its passage. For example, a constitutional amendment can’t be attached to the budget in the hope that MPs will be forced to pass it in order to pass the budget.

The next step to effect an amendment of section 25 would be for the government to formulate the text of the Bill proposing the amendment. At least 30 days before such a Bill is introduced in Parliament, the government is required to publish in the national Government Gazette details about the proposed amendment for public comment. This would include the text of the amendment and the motivation for it.

At the same time these details must also be submitted to the provincial legislatures to get its views. Only after this 30 day period can the Bill be formally tabled in the National Assembly. When it’s introduced in the assembly, the government must also submit any written comments from the public and the provincial legislatures to the Speaker for tabling in the assembly. These must also be tabled to the chairperson of the National Council of Provinces.

Sections 59 and 72 also require the National Assembly and National Council of Provinces to facilitate public involvement in the legislative and other processes of the National Assembly and its committees.

The Constitutional Court held that this imposed a duty on the assembly and the National Council of Provinces to act reasonably in ensuring the voices of ordinary people are heard before passing legislation.

The more important the Bill, and the greater the public interest, the more onerous the obligation to facilitate public involvement. The rules of the National Assembly and National Council of Provinces already provide for this and will therefore have to be followed.

This process could take some time to conclude as it can be time consuming to ensure extensive public involvement in the process.

Section 74(7) also says that a Bill amending the Constitution may only be put to the vote in the National Assembly after at least 30 days have elapsed since its introduction, if the National Assembly is sitting when the Bill is introduced; or after at least 30 days after its tabling if the National Assembly is in recess when the Bill is introduced.

Once the Bill amending the Constitution has been through all these steps, it’s then referred to the President for signing into law.

An important caveat is that an amendment to the Constitution passed in this way can’t be challenged on the basis that the amendment itself is unconstitutional. This was made clear by the Constitutional Court in 2002, when it stated: “Amendments to the Constitution passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution.

Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.”

• Pierre de Vos is Claude Leon Foundation Chair in Constitutional Governance, University of Cape Town, South Africa.