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 of the 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 of Provinces. Because of the strict amendment requirements,
the Constitution is proclaimed to be entrenched – safeguarded against, and finally 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
of potent 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 of party 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 wideranging
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 of politics.
The true state of the constitution should therefore not (only) be gauged by the (interpretation
of the) wording of the constitutional text, but by enquiring into the dynamic operation of potent
political forces within society.
Die leerstuk van grondwetlike oppergesag soos vervat in artikel 2 van die Suid-Afrikaanse
Grondwet en die opvatting dat konstitusionele verandering slegs kan geskied nadat die streng
wysigingsvoorwaardes ingevolge artikel 74 nagekom is, is geloofsversterkend dog ongegrond.
Naas tekswysigings van die Grondwet, kan die konstitusie ingrypende veranderings ondergaan
terwyl die teks onveranderd bly en die (wan)indruk van konstitusionele stabiliteit wek. Hierdie
waarheid word aan die hand van die Suid-Afrikaanse konstitusionele gebeure van die afgelope
twee dekades toegelig. Die Suid-Afrikaanse konstitusie het vanweë die uitwerking van politieke
kragte talle ingrypende veranderinge ondergaan, sonder dat enige spoor op die teks gelaat is.
Vier daarvan is hier ter sake. Die verandering van die kwasi-federale aard van die staat na ʼn
gesentraliseerde staatsopset; die migrasie van gesag vanuit die amptelike sentra van regeringsgesag
na ʼn verskeidenheid van nie-amptelike gesagsentra, wat meegebring het dat Suid-Afrika
tot aan die einde van die Zuma-termyn ʼn wanordelike hibriede regeringsopset geword het; die
konstitusionele orde se versinking in ʼn patronaatstaat vanweë sogenaamde kaderontplooiing;
die staat se verlies aan die monopolie op wettige geweld gepaard met die gedeeltelike
verburgerliking en privatisering van die verantwoordelikheid tot selfbeveiliging. Indien gepoog word om die aard van die Suid-Afrikaanse konstitusionele orde slegs met verwysing na die
grondwetlike teks te peil, sou hierdie veranderinge verborge gebly het. Daarom is dit nood-saaklik om die bestudering van die konstitusie uit te brei tot die oorweging van politieke kragte,
waardeur die eintlike stand van die konstitusie aan die lig kom.
