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