Koos Malan writes on how the reality differs from the wishful thinking of legal academics
The cornerstone of the South African Constitution – the Constitution’s most essential article of faith – is its perceived supremacy. That comprises two matters.
The first is that the Constitution is the yardstick for measuring also all acts of government. Anything done which is at variance with the Constitution, is in the final analysis invalid. That, the Constitution ensures us, the judiciary as overseer of the Constitution and guardian of our rights, will primarily see to.
The second aspect is that the Constitution is entrenched. It cannot easily change. It can only be amended with the support of two third of the members of the National Assembly and six of the nine delegations of the National Council of Provinces. In the case of section 1 of the Constitution – the founding values – the amendment requirements are even stricter. For that a 75% majority is required.
Thanks to the supremacy of the Constitution, it appears to be an unassailable force. In consequence the idea of supremacy conveys a distinctively reassuring message: fear not and do not be concerned, because the Constitution stands firm and we can rely on its enduring protection. Hence the Constitution is often referred to as the final Constitution.
Regardless of the crucial importance of the notion of constitutional supremacy, it is essentially fallacious. Trust in it in keeping with the way in which it was orated to the South African public over the last decades, and you are bound to be disenchanted, because the actual state of affairs is way different. Let us explain.
Lifeless formulations in contrast to actual law
The Constitution consists of a set of provisions, the most important of which are legal norms, saying how things ought to be. Formulations that immediately come to mind are the formulations of the bill of rights and the founding values of section 1, referred to above. There are also many others, such as the formulations of legal norms pertaining to the constitutional institutions responsible for our safety; formulations of legal norms on the institutions vested with legislative and executive powers; formulations on the legal principles pertaining to the conduct of the state administration, formulations of legal norms on how the official languages are to be dealt with and many more.
However, it is very important to clearly understand that the formulation of a legal norm does not necessarily mean that an actual legal norm is really (in practice) in existence. There might be formulations setting out what ought (or must) be and how state institutions ought to act. That, however, does not mean the institutions are in fact acting in the required way or that the actual state of affairs is what it ought to be in terms of the norm formulation concerned.
On the contrary. There might be formulations of legal norms in the Constitution that have simply never been complied with. In such scenario an actual legal norm has simply never entered into force as an actual legal norm. On paper there is a formulation but an actual legal norm has never been established. It (the legal norm) was simply stillborn – stillborn law.
Secondly, there are formulations of legal norms that at first were abided by. In time, however, compliance has dropped so much that the norm has fallen by the wayside for all practical purposes. The formulation continues to its existence on paper, but in practice it has simply lapsed. It has turned into lapsed law.
Thirdly there are scenarios in which people, especially public servants and politicians of the governing party simply act in a way that deviates from what legal formulations provide. The deviating conduct is consistent and the relevant public servants and politicians believe there conduct to be correct. This third scenario is even more far-reaching than the second, since existing law is not only falling into disuse. It goes beyond that in that existing constitutional law is through constant practice replaced by new substituting law in place of the substituted law.
It is to be noted that in none of these three scenarios the Constitution is amended by replacing or removing the wording of constitutional provisions in compliance with the required parliamentary procedure. There is no trace of compliance with a two thirds (or 75%) majority as required by the Constitution.
Precisely for that reason traditional constitutional jurists who are true believers in the supremacy of the Constitution will indignantly reject the very notion that the constitution may be changed in this way – by actual practice. They will refer to the requirements of the Constitution on amendment and will proclaim that the Constitution does not allow these changes actuated by practice. In the final analysis they will rely on the Constitution’s norm- formulations on constitutional amendment.
However, such rejection is of no moment. It is based on what according to the formulations of the Constitution ought to happen, yet failing to account for what really occurs in practice.
Where does this leave us? It leaves us with a written Constitution consisting of a set of written formulations in contrast to an actual constitution. As a result of deviating practices the latter – the actual constitution – which precisely as a result of these practices might be something way different from the written Constitution.
This means that when we seek to gauge the content of the actual constitution, we cannot limit ourselves to the written Constitution. Because notwithstanding Constitution’s claim of supremacy and that it may be amended only by Parliament complying with strict amendment procedures, the constitution in fact changes all along. It changes in consequence of the forces referred to above, namely stillborn law, lapsed law and substituted law – not, in these scenarios, as a result of the amendment of the wording of formulations of the Constitutions, but in step with the actual conduct of people – public servants, politicians and others.
To verify the actual content of the constitution, one therefore has to analyse carefully the actual practices. Only that will reveal the actual content of the constitution. If one limits oneself to the written formulations in seeking to establish the content of the constitution, one runs the risk of serious self-deceit. We might then be taken for a ride by the written Constitution, which for long might have been superseded by a different actual constitution.
But can it be true that even South Africa’s vaunted supreme Constitution has in part been side-lined and replaced by an actual constitution of a different kind? Has the South African Constitution really forfeited its supremacy and is it in fact quietly changing all the time? It has indeed. In the next article referring to concrete examples, it will be shown that the South African Constitution is in fact not supreme. In consequence of potent socio-political forces, a different actual constitution has in fact established itself.