ABSTRACT
The new South African Constitution came into force on 4 February 1997, aĞer being signed into law by President Nelson Mandela,1 and in so doing brought ‘to close a long and biĴer struggle to establish constitutional democracy in South Africa’.2 South Africa’s move towards a constitutional democracy, with a bill of human rights, stands in marked contrast to the racist, authoritarian politics of the recent past.3 At the dawn of the post-apartheid era, the ruling minority National Party realised that a future commitment to constitutional principles would be the best way to guard against retribution, while the majority African National Congress (ANC) wished to signal a change from the oppressive rule of the past, and to move in line with international constitutional trends. For this reason, politicians entering the multiparty negotiations at the Convention for a Democratic South Africa (CODESA, 20 December 1991) – where the future of South Africa’s democratic turn was negotiated – broadly supported a move towards constitutional democracy. Yet the precise terms of this constitutional order were contentious. Negotiations at CODESA failed because agreement could not be found as to the political majority within the Constitutional Assembly, an elected body which was to be responsible for the draĞing of the new Constitution. Circumstances had required the enactment of a constitutional order prior to the first democratic election, an order which would be required to clarify the very political terms upon which the election should be contested. The deep dilemma of such an enactment was the sense of an apparent, undemocratic process, where constitutional principles which speak in the name of ‘the people’ would be established behind the backs of a vote-less majority. The eventual solution involved a two-stage process, requiring the enactment of an interim constitution, which would come into effect on the date of the first democratic election and would be replaced soon aĞer by a final constitution, draĞed under democratic conditions. The Multiparty Negotiation Process, which replaced CODESA in September 1992, successfully produced an interim constitution.4 Schedule 4 to the Interim Constitution contained 34 constitutional principles which were to constrain
the content of the following democratic constitution. Since the final version could not be established, agreement had to be maintained in principle, and the Interim Constitution required that the final text be judged in accordance with these binding principles.5
