Chapter 13 Founding Provisions James Fowkes 13.1 Introduction: A Structural Approach 13.2 The Preamble (a) Role and interpretative significance (b) Founders' intentions? (c) Judicial usage: breaking with the past (d) Content besides transformation (e) Relationship to FC s 1 13.3 Founding Values as Descriptive Principles: Understanding the Role of FC s 1 (a) Problems in the case law for an account of FC s 1 (i) Is FC s 1 merely of subsidiary interpretative significance, or does it apply more directly? (ii) The blurring of FC s 1 and other provisions (iii) Sporadic and ad hoc use of FC s 1 (b) The legal effect of FC s 1: founding values as descriptive principles (i) FC s 1(c) as a source of obligations: Reconciling Modderklip and NICRO (ii) FC s 1(c) and the legality principle: Reconciling Pharmaceutical Manufacturers and NICRO (iii) Stand-alone enforcement? Reconciling NICRO, Modderklip, the legality cases and UDM (2) (iv) Making sense of the reconciliation I: FC s 1 values as principles (v) Redundancy and super-entrenchment (vi) Making sense of the reconciliation II: FC s 1 values as descriptive principles 13.4 Application and Relationship to Other Constitutional Mechanisms (a) Application (i) A norm of higher status? FC s 1's relationship to the rest of the Constitution (ii) FC s 1's relationship to law outside the Constitution (iii) Horizontal application (b) FC s 1 and constitutional amendments (i) The distinction between internal and external inconsistency with FC s 1, and the relationship between them (ii) Constitutional amendments and external inconsistency with FC s 1 (iii) Constitutional amendments and internal inconsistency with FC s 1 (iv) Basic structure doctrine (v) Relationship to CPs (c) FC s 1 and the internal mechanism of the Bill of Rights (i) Judicial use of FC s 1 in relation to the Bill of Rights mechanism: FC ss 8, 36 and 39 (ii) Approaches to the relationship between FC s 1 and the Bill of Rights mechanism (iii) Critiquing the case law on FC s 1 and the Bill of Rights mechanism: a way forward 13.5 The Founding Values (a) The section as a whole (b) 'South Africa is one, sovereign democratic state founded on the following values:' (c) A state founded on 'Human dignity, the achievement of equality and the advancement of human rights and freedoms' and 'Non-racialism and non- sexism' (d) A state founded on 'Supremacy of the constitution and the rule of law' (i) The precise legal basis of the legality cases and the descriptive understanding (ii) FC s 1(c) and the legality principle (iii) FC s 1(c) and other provisions (iv) The relationship between the legality principle decisions and other FC s 1(c) decisions (e) A state founded on 'Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.' (i) Decisions with a direct link to the achievement of accountability by electoral mechanisms (ii) Decisions with an indirect link to the achievement of accountability by electoral mechanisms (iii) Decisions with no link to the achievement of accountability by electoral mechanisms RS6, 04-14, ch13-p1 Preamble We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to— Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people. Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika. 1 Republic of South Africa The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi- party system of democratic government, to ensure accountability, responsiveness and openness. 13.1 Introduction: A Structural Approach * This chapter adopts a structural approach to its two main subjects, the Preamble and the founding values set out in s 1 of the Final Constitution.1 Two features recommend this approach. The more critical one is that the Preamble and FC s 1 are value-laden terms in a very value-laden Constitution. What distinguishes them from other sections is not their content. To understand them, we need to know what their role is in the constitutional mechanism. What tasks are they meant to fulfill that explain why they are there along with all the other value-laden provisions? In the case of the Preamble, this question is quite easy to answer. Its role is readily understood, and because it is not part of the operative mechanism of the Constitution, redundancy is much less of a concern: duplication of content does * The author wishes to thank the editors for very valuable comments that have greatly improved this chapter. I have also had the benefit of reading the previous version of this chapter prepared by Christopher Roederer. The usual disclaimers apply. RS6, 04-14, ch13-p2 not matter, because the Preamble has a different function to the provisions whose content it might duplicate. By contrast, it will take some work to offer an account of FC s 1's role. FC s 1 has a strong appearance of redundancy, and that is more concerning in an operative provision. But it can be dispelled for the same reason that the Preamble's can be: because FC s 1 has a different function to the provisions whose content it overlaps. Currently, the function of FC s 1 is a source of some uncertainty. As Heinz Klug has recently noted, 'it is still unclear exactly how [the founding] values may be raised by litigants and applied in litigation.'2 This chapter will endeavour to remedy this. It will argue that the role of FC s 1 is not to set out unique content, but to describe some of the content set out in other provisions, and by describing it, to pick out and super-entrench those aspects of other provisions of the Constitution. FC s 1 does duplicate content found elsewhere, but that is not a problematic source of redundancy: in fact, it is critical to the section's operation. The second reason for adopting a structural approach is that Chapter 1 of the Constitution contains different kinds of provisions that need to be kept apart. The Constitution begins, as it ends, with a set of provisions that might be marked 'miscellaneous' if this did not imply a certain lack of importance. Most of the chapter retains the content of Chapter 1 of the Interim Constitution,3 though sometimes in altered terms, and most of this content is of the nuts and bolts variety, albeit of an elevated kind: official languages, other important languages, national flag and the national anthem. This content is largely formal and self-explanatory, and no more will be said about it here. A second sort of content in Chapter 1 is similarly of a nuts and bolts variety, but its content is not nearly as self-explanatory. FC s 2, providing for the supremacy of the Constitution, FC s 3 on citizenship, and aspects of FC s 6 on language policy all fall into this category. Most if not all of the constitutional debates on these provisions are the subject of other chapters in this work. Language and citizenship issues are the subjects of fundamental rights, discussed elsewhere.4 A chapter by Frank Michelman considers constitutional supremacy and the rule of law.5 Since part of this 1 Constitution of the Republic of South Africa, 1996 ('Final Constitution' or 'FC'). 2 H Klug The Constitution of South Africa: A Contextual Analysis (2010) 108. 3 Constitution of the Republic of South Africa Act 200 of 1993 ('Interim Constitution' or 'IC'). 4 J Klaaren 'Citizenship' in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, 2007) Chapter 60 and S Woolman 'Official Languages and Language Rights' in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, 2006) Chapter 65. 5 F Michelman 'The Rule of Law, Legality and the Supremacy of the Constitution' in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, 2006) Chapter 11. content overlaps with that of FC s 1(c), this chapter covers some of the same ground as Michelman's, but the account of FC s 1 offered here differs from his understanding of it.6 In the context of Chapter 1, FC s 1 is a structural outlier. Its counterpart in the Interim Constitution simply stated that South Africa was 'one, sovereign state' and defined the national territory with reference to a schedule.7 FC s 1 was formed by adding in a good deal of substantive content, most of it drawn more or less RS6, 04-14, ch13-p3 directly from the Constitutional Principles.8 The result was then super-entrenched by FC s 74(1), which provides that a 75% vote in the National Assembly and the assent of six of the nine provinces are required to amend FC s 1.