Page 6 - Constitutional Model for a Democratic South Africa By Prof Vuyisle Dlova

TOWARDS A NON RACIAL, MAJORITARIAN AND QUASI-FEDERAL CONSTITUTION IN
SOUTH AFRICA

Vuyisile Dlova

THE SCOPE OF THE PAPER

The purpose of this paper is to make a modest contribution to the debate on the constitutional
future of South Africa, after the demise of apartheid. The article is not a projection into the
future in the sense of predicting future developments. It has a more limited, and hopefully
less hazardous, objective of attempting to answer the question as to what type or form of
constitution can best suit the political facts and realities of the present day South Africa.

The word constitution in this article is used in its narrow sense, that is to mean, a set of
written rules, possessed of some degree of legal sanctity, which seek to define the various
organs of government and also set out their powers, functions and duties and their relations
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inter se and with the public at large.
In these few pages it is not possible to deal with all issues of fundamental importance that
often form part of modern constitutions. I will therefore confine myself to a selection of those
issues that seem to me most pertinent in the case of South Africa.

The questions I have posed and which I attempt to deal with, therefore, are the following;
who should have franchise rights in South Africa?; should South Africa be a unitary or a
federal state (or a mixture of the two); should South Africa adopt a presidential system of
government (or should power or the exercise of executive authority be lodged on some
person other than the head of state as is the case in the Westminster model); should South
Africa be a “one-party democracy” or not; finally, should the constitution guarantee individual
rights?

Such involved issues cannot be adequately addressed without examining first the political and
social realities that such constitutional propositions seek to address, and hopefully, resolve.

We need therefore to identify not only the competing interest groups but also the interests or
constitutional ambitions of the individual groupings themselves.

Since the forces at play are bound to be many and varied only the most important will be
mentioned in our brief background note.

BACKGROUND

Constitutional history

The present day South Africa came into political being as a result of an act of union of four
political entities, all of which enjoyed a status of responsible government within the British
Empire at the time of their coming together. The entities involved were the two long time
colonies of the Cape and the Natal, and the two former “Boer” Republics of Transvaal and
Orange Free State, which had since their surrender to the imperial forces, in 1902, become
part of the British Empire. The union was a “voluntary act”, a product of three months of
intense negotiation, behind closed doors, of the representatives of the white settlers in all the
four territories. At the end of that period a draft constitution had been drawn. It was this draft