Constitutional Crossfire: Legislative Developments During 2023
10 January 2024
During 2023, Parliament considered a mix of positive legislation and legislation that falls seriously short of constitutional standards. Positive developments, such as the recognition of South African Sign Language, contributed to inclusivity, equality and justice. Unfortunately, this and other positive developments were outweighed by several bills that, in the Foundation’s opinion, fail to pass constitutional scrutiny - including the Expropriation Bill, the Employment Equity Amendment Bill (now the Employment Equity Amendment Act, or EEAA), the “Hate Speech Bill”, the Basic Education Laws Amendment Bill (BELA Bill), the National Health Insurance Bill (NHI Bill), the General Intelligence Laws Amendment Bill (GILAB) and the Electoral Amendment Bill (now the Electoral Amendment Act). These bills pose a serious threat to the democratic ideals and constitutional principles on which the new South Africa was founded.
The Right to Property: The Expropriation Bill
The Expropriation Bill of 2023 raised fundamental concerns about property rights, particularly as property was not limited to land only, the definition of “expropriation” is ambiguous, and the circumstances under which “nil compensation” might be paid for expropriated property was open-ended. The lack of precise definitions of key concepts such as “land reform” and “public interest” added to apprehensions that the Bill lacked the certainty required by the rule of law. In seeking a balance between the need for land reform and the protection of property rights, the Bill failed to recognise the centrality of property rights for all free and successful societies. In so doing, it further complicated the delicate task of complying with constitutional principles while addressing historical injustices. The Bill is currently in front of the Parliament’s second house, the National Council of Provinces (NCOP).
Freedom of Trade, Occupation and Profession: The EEAA
The EEAA ostensibly seeks to advance employment equity, but has triggered significant concerns regarding the imposition of what are, in effect, racial quotas in all sectors and levels of employment in the economy. These concerns were aggravated by the publication of new and draconian racial targets in the Draft Employment Equity Regulations 2023 which, if implemented, would have had a catastrophic impact on the employment and promotion prospects of minority racial groups. Reaction to the regulations led to an agreement between the trade union Solidarity and the Government, affirming justifiable reasons for non-compliance with EE targets and confirming that no penalties will be imposed on employers who can demonstrate reasonable grounds for non-compliance. The Act will also empower the Minister to issue Section 53 compliance certificates. These certificates will be required by any employer wanting to do business with the Government. The removal of the annual turnover threshold for designated employers with fewer than 50 employees is welcome, because such employers will be relieved of the administrative burden of having to submit employment equity plans.
Freedom of Expression: The Hate Speech Bill
The Hate Speech Bill, designed to curb harmful expressions by criminalising “hate speech”, faced scrutiny due to its failure to define hate, its very broad definitions of hate speech and harm, the inclusion of a wide range of categories of potential victims of hate speech, and failure to meet South Africa’s international obligations when limiting freedom of expression. In the view of critics, the Bill goes far beyond the limitations on freedom of expression in Section 16(2) of the Constitution. Provisions ostensibly exempting journalists, artists, academics and religious practitioners lacked credibility, because of their circular nature. Fears were expressed that draconian 5-year prison sentences on those found guilty of hate speech would stifle freedom of expression and lead to self-censorship. The Bill would have a chilling effect on the robust exchange of ideas essential for a democratic society. The Bill is currently waiting to be signed into law by the President.
The Right to Language: The BELA Bill
Despite its declared intention to improve basic education, the BELA Bill raised concerns about potential threats to language rights and the future role of School Governing Bodies (SGBs). The Bill grants provincial education department heads power to overrule SGBs’ decisions relating to language and admissions policies. Fears were expressed that the Bill could pose a serious threat to the future of both Afrikaans single-medium schools and former Model C schools - which continue to provide excellent multiracial education - in contradistinction with 80% of public schools that are dysfunctional. Preserving the essence of language diversity within the broader goals of educational improvement calls for compliance with Section 29(2) of the Constitution, which grants everyone the right to receive education in the official languages of their choice where this is reasonably practicable. The Bill is currently in front of the Parliament’s second house, the National Council of Provinces (NCOP).
The Right to Health: The NHI Bill
The NHI Bill, with its ambitious healthcare reform agenda, faced scrutiny for its lack of clarity on funding mechanisms and operational feasibility. Concerns were expressed about NHI’s impact on the private healthcare sector and existing medical schemes, as well as its impact on the constitutional right of citizens to proper health care.
Critics argue that the NHI Bill, in its current form, fails to comply with the rationality requirement inherent in the rule of law. There is no clear indication of how its immense cost (ranging between R450 – R700 billion per annum) would be funded and no idea of how it could be managed by government departments that are incapable of reversing the accelerating decline of the present public healthcare sector. In addition, the Government has failed to properly consider objections raised by the Treasury, by existing medical schemes, by much of the medical profession, or the possibility that NHI will lead to mass emigration of health care professionals. If not carefully managed, the consequences of this Bill may include disruptions in citizens' access to quality healthcare and the potential undermining of the constitutional right to health. The Bill is currently waiting to be signed into law by the President.
Right to Privacy: The GILAB
Ostensibly introduced to reform the intelligence services following the recommendations of the Zondo Commission and the Presidential High-Level Review Panel on the State Security Agency (SSA), the Bill raised immediate concerns due to the vagueness of its definition of national security and its initial intention to allow intelligence agencies to vet NGOs and religious bodies. Even when the latter provision was removed, serious concerns remained, as broad and ambiguous definitions of threats to national security opened the way to the unchecked power of security agencies to interfere with a broad spectrum of constitutional rights. Anything that might affect “the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life” might be regarded as a threat to national security. The absence of effective oversight mechanisms raises further concerns regarding the risk of potential abuses within intelligence services. The Bill is currently in front of Parliament’s first house, the National Assembly (NA).
Political Rights: The EEA
The EEA was introduced in response to the Constitutional Court’s 2021 judgement that provision should be made for independent candidates to stand in future national and provincial elections. The new Act was challenged in the Constitutional Court by the One South Africa (OSA) movement, because votes cast for independent candidates would have significantly less value than those cast for political parties. This is because independents would be able to stand for election only in 200 regional seats and would have no share of the 200 proportional seats reserved for political parties. OSA also complained about the onerous requirement that to stand for election, independent candidates would have to produce signatures equivalent to 15% of the number of votes required to win a seat.
On 4 December 2023, the Court ruled that independent candidates would have to produce only 1000 signatures, but rejected their argument regarding the 200/200 split between regional and proportional seats.
As a result, independent candidates will, for the first time, be able to participate in the 2024 national and provincial elections. However, votes cast for them will not have the same value as votes cast for political parties. Many critics regarded the new Act as a missed opportunity to reform the electoral system to make MPs accountable to voters instead of to their party bosses. As the nation navigates electoral reform, the Act's shortcomings and the unaddressed disparities underscore the urgent need for comprehensive changes to foster a truly inclusive democracy.
Positive Developments
2023 also witnessed positive legislative strides that shaped a promising future for South Africa. The Draft Marriage Bill, tabled in Parliament on 13 December 2023, is set to contribute to legal coherence and equality in marital relationships, aligning with constitutional principles of dignity and equality (Sections 10 and 9 of the Constitution). This marked progress towards fostering inclusivity and protecting the rights of all citizens.
Recognition of South African Sign Language as the 12th official language was another significant step towards inclusivity, echoing the nation's dedication to linguistic diversity and aligning with constitutional provisions promoting language rights (Section 30 of the Constitution).
The Climate Change Bill and the Just Energy Transition Investment Plan demonstrated South Africa's commitment to environmental sustainability, aligning with constitutional imperatives related to environmental rights (Section 24 of the Constitution). These initiatives signify a proactive approach to addressing climate change and contribute to global efforts in mitigating environmental challenges.
Conclusion
In conclusion, legislative developments during 2023 included the severe challenges to constitutionality, set out above, as well as some positive steps forward. As the nation approaches the 2024 elections, the imperative of upholding constitutional values should be at the forefront of voters’ minds. They should strive to elect a parliament that will adopt legislation that will be in line with constitutional values and that will carry out its core responsibility of scrupulously holding the executive to account. This pivotal juncture offers opportunities for collaborative efforts, guiding the nation towards a future grounded in democratic ideals and characterised by justice, equality, and the rule of law.
Issued by FW de Klerk Foundation, 10 January 2024
