Konstitusionele hof oor selfbeskikking

Die Konstitusionele hof moes in 1996 die finale grondwet sertifiseer voordat dit in werking kon kom.  Die finale Grondwet was voorafgegaan deur ‘n tussentydse Grondwet wat die grondwetlike beginsels bevat het en was die resultaat van die Codesa onderhandelings weeerspieël wat in die finale grondwet neerslag moes vind.

Die Konstitusionele hof het ‘n lang en lywige oorsig van elke artikel in die Grondwet gelewer om in regsterme te redeneer of die finale artikels aan daardie beginsels voldoen het.  Aanvanklik is die Grondwet weer terug verwys en sekere verstellings moes gemaak word om aan hul vereistes te voldoen. Hieronder volg hul beredenering van artikel 235.   (CP XXXIV beteken Constitutional Principle 235 en CA die Constitutional Assembly, wat die Grondwet moes opstel)

Volgens hul vertolking kleef daar geen stigma aan diegene wat hulle vir ‘n volkstaat beywer nie, en word dit as normale regspraktyk beskou dat gemeenskappe hul selfbeskikking mag opeis.

Lesers word versoek om hierdie artikel sorgvuldig te bewaar vir ingeval hulle deur duistere magte gekonfronteer sou word.

“Self-Determination

[215] It was contended that although CP XXXIV does not impose as clear an obligation on the CA as do other CPs, it establishes an expectation about the creation of a Volkstaat among a significant number of Afrikaners which the NT does not realise. The contention was that CP XXXIV has to be interpreted in the light of agreements and memoranda produced by the Freedom Front, the ANC and the then South African Government on the eve of the elections in April 1994. Yet, far from giving these expectations form, the NT has given nothing concrete in the form of self-determination, and has in fact made the achievement of such self-determination much harder in three respects. First, Parliament would have a discretion as to whether or not to permit a cultural community to exercise self-determination within a territorial entity. Second, in terms of IC 184B(3), special arrangements exist to permit changes to provincial boundaries by a simple majority so as to create such an entity, whereas under the NT a constitutional amendment would be required (in order to change NT 103). Third, such entity would under the NT be subject to the Bill of Rights because NT 235 speaks of self-determination within the framework of the NT, whereas no such framework qualification exists in CP XXXIV.

[216] The argument is also based on a misunderstanding of the provisions of IC 184A. These provisions do not empower the Volkstaat Council or Parliament to establish a Volkstaat without amending the IC. The idea of a Volkstaat has to be pursued “constitutionally” through representations to the CA and the Commission on Provincial Government. IC 184B(3) deals only with boundary changes consequent upon the establishment of a Volkstaat. The other requirements, namely the creation of the Volkstaat and the definition of its powers and functions, can be achieved only through amendments to the IC or through adoption in the NT, which will require a two-thirds majority in the NA and the Senate or in the CA. What IC 184B(3) allows is a reorganisation of boundaries consequent upon such a decision, without necessarily having the consent of the province or provinces affected thereby. The provision that national legislation should determine the matter simply provides the mechanism for giving legal form to any decision taken in accordance with the Constitution.

[217] A related contention was that the right to self-determination, including the right to secession, is internationally accepted as a right, and thus should not be subjected to the discretion of Parliament. Thus, if a dispute reached this Court, it should be decided according to objective criteria as determined by international law, and not by whether or not Parliament has passed the requisite legislation.

[218] In our view the terms of the NT do not sustain the argument that CP XXXIV has not been complied with. Our task is simply to test the terms of the NT against the CPs. Whatever subjective hopes any parties might have had as a result of the insertion of CP XXXIV, its language for present purposes is clear. Its basic thrust is that constitutional provision for the notion of the right to self-determination by any community sharing a common cultural and language heritage within a territorial entity shall not be precluded, notwithstanding the fact that South Africa shall be one sovereign state, as required by CP I. This is clearly a permissive rather than an obligatory provision. The only mandatory provision in the CP is that if a territorial entity has in fact been established in terms of the IC before the NT is adopted, then such entity must be entrenched in the NT. No such entity had in fact been established, so no obligatory entrenchment had to be made.

[219] It is not necessary for us to decide whether the NT is obliged to keep the idea of territorial self-determination alive. The fact is that the CA chose to do so in terms of NT 235, which ensures that the permissive door opened by the CP is kept ajar. It is obvious that any arrangements which could be made to establish a territorial entity and to define its boundaries will have to be negotiated with an existing government within the framework of the NT (including the permissive provision). This is contemplated by CP XXXIV.1 itself, which underlines the “recognition therein of the right of the South African people as a whole to self-determination” and says that the more limited right to self-determination of a particular community shall not be precluded “within the framework of the said right”. Moreover NT 74(1)(b)(ii) and (4) and 103(2), which deal with provincial boundaries and any changes that may be made to them, are specifically required by the provisions of CP XVIII.3 and CP XVIII.4. Finally, it is difficult to interpret CP XXXIV as permitting the denial of the fundamental human rights of any persons living in such an entity, let alone requiring the exclusion of the Bill of Rights. The provision that national legislation shall determine the matter simply provides the mechanism for giving legal form to any agreement that might be reached.

[220] The broader question has also been answered. This Court functions purely in terms of the IC. Proponents of a Volkstaat are free to campaign for political and constitutional changes which would result in the forms of self-determination which they consider appropriate being brought about and institutionalised. We are, however, bound in our present task by the limits of the 34 CPs, and by them alone. Apart from CP XXXIV, the only CP dealing with self-determination is CP XII, which requires certain collective rights of self-determination to be recognised and protected in the NT. This has been done in the Bill of Rights through NT 31, which protects cultural, religious and language communities. A submission by one of the objectors that the right is not protected because the provision is framed in negative and not positive terms is without substance.

[221] It was also contended that the language of CP XXXIV is wide enough to embrace not only forms of Afrikaner self-determination but self-determination of traditional authorities as well, thus avoiding any racial selectivity in the interpretation of the CP. We cannot accept that contention. In our view CP XXXIV is not intended to entrench the status of traditional authorities. Their role and status are expressly dealt with in CP XIII and CP XVII. Their continued existence under IC 181 and NT 212 is not entrenched but is subject to amendment and repeal. CP XXXIV cannot be relied upon to entrench the existence of traditional authorities.

CP XIV: Participation in the Political Process by Minority PartiesCP XIV Participation in the Political Process by Minority Parties

[222] Decisions in the NCOP are to be taken in terms of NT 65(1), which states:

“Except where the Constitution provides otherwise –

Objection was taken to these provisions on the ground that they do not comply with CP XIV which requires that:

“Provision shall be made for participation of minority political parties in the legislative process in a manner consistent with democracy.”

It was contended that the procedures in the NCOP dealing with NT 76 legislation and constitutional amendments do not comply with the requirements of CP XIV because voting is by province, which means, so the contention went, that minority parties in provincial delegations do not have an effective vote.

[223] The method of voting in the NCOP depends upon the subject matter of the legislation. In respect of matters dealt with in terms of NT 75, each delegate has one vote and the question is decided by a majority of votes. The rules and orders of the NCOP must provide for the participation of minority parties in such matters in a manner consistent with democracy. Other matters are decided on the basis that each province has one vote and at least five provinces must support the decision. NT 70(2)(b) requires the rules and orders of the NCOP to provide for the participation of all provinces in its proceedings in a manner consistent with democracy.

[224] NT 61(2) requires the allocation of seats in the NCOP to be regulated by national legislation in a manner which ensures that minority parties participate in the NCOP in a manner consistent with democracy. This, and the requirements of NT 70(2)(b) and (c) relating to the participation of provinces and of minority political parties in the proceedings of the NCOP in a manner consistent with democracy, give rise to constitutional obligations which are subject to judicial control. Provision is made for the full participation of minority political parties in the passing of legislation in the NA and in the passing of NT 75 bills in the NCOP. Although voting in the NCOP in respect of other matters is on the basis of one vote per province, the participation of the provinces in the proceedings has to take place in a manner consistent with democracy.

[225] NT 53(1)(a) provides that decisions in the NA are to be taken by a majority vote unless the Constitution provides otherwise. Larger majorities are required to overrule vetoes of the NCOP and to amend the Constitution. NT 57(2)(b) requires the rules and orders of the NA to provide for

“the participation in the proceedings of the Assembly, and its committees, of all minority political parties represented in the Assembly, in a manner consistent with democracy”.

[226] All legislation, including amendments to the Constitution, must be passed by the NA. The NCOP also has to pass legislation referred to in NT 76 and certain constitutional amendments referred to in NT 74(1)(b) and to deal with bills referred to in NT 75. If the NCOP fails to pass a bill governed by NT 76, its decision can be overridden by a two-thirds majority of the NA; other bills have to be referred to the NCOP and dealt with by it in terms of NT 75. If it fails to pass such a bill its decision can be overridden by a simple majority in the NA.

[227] Minority political parties participate fully in the legislative process through their role in the NA. In addition they are represented in the NCOP and are entitled to participate in its proceedings, which are required to be conducted in a manner consistent with democracy. The fact that voting on certain matters is to take place on the basis of one vote per province is not inconsistent with democracy. Given the purpose of the NCOP, which is to involve the provinces in the enactment of certain legislation and to provide a forum in which provincial interests can be advanced, the method of voting is not inappropriate. In the German Bundesrat, on which the NCOP appears to have been modelled, the votes of each Land may be cast only as a block vote, and there is nothing to suggest that the German system has proved unsatisfactory or undemocratic.

[228] In our view the provisions of the NT dealing with the structure and functioning of Parliament are not inconsistent with democracy, and sufficient provision has been made for the participation of minority parties in the legislative process to meet the requirements of CP XIV.

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