Abstract

MALAN, Koos. The silent change of the South African constitution. Tydskr. geesteswet. [online]. 2018, vol.58, n.2, pp.387-410. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2018/v58n2a12.

Since 1994 South Africa has had a supreme constitution. This is marked by two central characteristics. The first is that the Constitution is the supreme or higher law. All other law, (that is, law outside the constitution) and all conduct, more specifically, governmental conduct must comply with it, failing which it is invalid and without consequence. The second characteristic, logically flowing from the first, is that the Constitution is durable and inflexible, thus allowing it to serve permanently as the criterion for the validity of all law and conduct. To that end, constitutional amendments (in contrast to legislation), are placed beyond the easy reach ofthe legislature. Accordingly, the South African Constitution may only legitimately be amended with the minimum support of two thirds (in the case of section 1, with a 75%) of the members of the National Assembly and six of the nine provincial delegations in the National Council ofProvinces. Because ofthe strict amendment requirements, the Constitution is proclaimed to be entrenched - safeguarded against, andfinally in control of the tumults of political whims and vagaries. The only allowance, (alongside formal amendments) that is made for changes to the so-called supreme Constitution, are those resulting from judicial interpretation. These "changes" are very limited, however. Moreover, they are viewed to be mere overt pronouncements of meanings which have always been latent in the Constitution, rather than actual changes. Events of the decades since the present South African constitution entered into force, however, distinctively disproves the trite doctrine of the supremacy and entrenched status of the constitution. A collection of political forces - all somehow relating to the one-party dominant status of the African National Congress (ANC) government - have profoundly changed the actual state of South Africa's constitution. All this has occurred notwithstanding there not having been any significant amendments to (the text) of the Constitution. Hence, an informal, yet actual constitution has been developing alongside the seemingly stable (text of) the written constitution. Profound changes have been occurring both in the power structure of the constitution as well as its value basis. The present discussion focusses on four changes in the power structure. First, whilst the written constitution essentially provides for a quasi-federal allocation of power among the various levels (spheres) of government, the actual constitution (allowing for the exception of the Western Cape under the government of the opposition, Democratic Alliance) is now distinctively unitary and centralist. This change is the function of a number ofpotent political forces, including the ANC itself being a centralised political movement and the lack of administrative capacity on provincial level. Secondly, South Africa changed into a hybrid state. Thus, instead of governmental power vesting in the relevant constitutionally designated institutions, such as the national legislature (and provincial counterparts), it has migrated to a host of non-constitutional formal and informal formations, including formations within the ANC and around senior figures of the party, (shady) business concerns and others, all causing South Africa to morph into a shadow state in which the actual centres of powers are shared by and dispersed among non-statist power centres. This phenomenon has reached its zenith during the latter era of the Zuma government. Thirdly, whereas the Constitution has detailed provisions requiring a professional public service, the so-called policy of cadre deployment, (pursued by the ANC as part of the general ideology of transformationism and centralised party control), has replaced the formal constitutional position with a new dispensation of a party controlled public service. This deployment of large numbers ofparty cadres, often not suitable for the offices to which they were appointed, has changed the nature of the public service contemplated by the written constitution and has contributed to serious deterioration of the public service. Lastly, and directly related to the former, there has been a notable deterioration of the country's security services, in the face of the inordinately high levels of specifically violent crime. The deterioration of the security services has caused a serious void, now filled by a large array of private security formations. In consequence the Constitution's arrangements concerning security have been superseded by security having increasingly become a private matter. As a result, the state has also lost its crucially important monopoly of force. In step with the trite doctrine of the entrenched and supreme constitution it might be argued that the above are in fact not changes to the constitution at all, but rather instances of wide-ranging unconstitutional conduct. Within the limited confines of the trite doctrine of constitutional supremacy, this view is correct. The doctrine, however, is inadequate and unrealistic for its failing to account for the actual (state of the) constitution. The state of the actual constitution can realistically be gauged only when one is prepared to go beyond the strict confines of this inadequate doctrine. Once that occurs it is possible to realise that the so-called supreme constitution (as written instrument) is not supreme and entrenched, and is, in fact, often in part nullified or replaced by new, substituting law, resulting from potent forces ofpolitics. The true state of the constitution should therefore not (only) be gauged by the (interpretation ofthe) wording of the constitutional text, but by enquiring into the dynamic operation ofpotent political forces within society.

Keywords : Constitutional supremacy; quasi federal to centralist dispensation; migration of political authority to non-official centres of power; cadre deployment; state's loss of the monopoly to lawful force; privatisation of the responsibility to self-protection; constitutional change resulting from political forces in contrast to textual amendment of the constitution; lapsed constitutional law; substituting and substituted constitutional law; state capture.

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