South African Statutes and other Legislation

Modern South African legislation reflects South African society's attempt to emerge from the deep bias and prejudice embedded in apartheid legislation, by passing a variety of laws dealing with rights and freedoms enshrined in the Constitution of the Republic of South Africa, and by developing institutions upon which society and each of its individuals can depend in making the ideals of the South African Constitution a reality. Yet, the content and quality of South African statutes also provides us with a picture of South African society's struggle to develop and maintain the skills and expertise necessary to developing a full body of law that is properly commenced, properly amended, and not riddled with errors, upon which the Constitution of the Republic of South Africa, Act No. 108 of 1996, depends for implementation.

The Constitution of the Republic of South Africa

The Constitution of the Republic of South Africa Act, No. 108 of 1996 is the piece of legislation against which each prior piece of legislation must be judged and if necessary be amended, and it is backdrop which has coloured each subsequent piece of legislation promulgated.

It was negotiated after the collapse of the race-based apartheid government and the political redefinition of South Africa. During the negotiations around this change the Interim Constitution of the Republic of South Africa Act, No. 200 of 1993 held the fort, as it were, until the final Constitution of the Republic of South Africa, 1996, was negotiated and promulgated. The Interim 

was repealed by the Constitution of the Republic of South Africa, 1996

The Constitution of the Republic of South Africa holds the all important Bill of Rights, sets up the administrative, judicial and political systems and structures, defines provincial and municipal systems and structures, provides for the passing of laws to necessary to enforce aspects of the Constitution, and sets up institutions such as the Human Rights Commission, which are necessary to safeguard the ideals contained in the Constitution.

The Constitution of the Republic of South Africa Act, 1996, is very much the torch held up by the population of South Africans as the light to guide them. However, there has increasingly been an increasing number of challenges to the Constitution and institutions it set up, such as the Constitutional Court and the South African Human Rights Commission ("SAHRC").

These challenges have, interestingly, emanated from within the ruling party, the African National Congress ("ANC"), and its two allies, the huge labour confederation the Congress of South African Trade Unions ("COSATU"), and the South African Communist Party ("SACP"). For example, the Constitutional Court was recently referred to as "counter-revolutionary" by the Secretary-General of the ANC, and the HRC's order that the leader of the ANC Youth Brigade apologise for statements that he would kill to protect the President of the ANC, Mr Jacob Zuma, from what he considered to be an unfair legal process into corruption charges against Mr Zuma, was largely ignored, as were supporting statements by and a similar order in relation to the leader of COSATU and the SACP.

Overview of recent Statutes

The Choice on Termination of Pregnancy Act, No. 1 of 2008

This Act amends the primary South African legislation on terminating pregnancies, which is entitled the Choice on Termination of Pregnancy Act, No. 92 of 1996.

A major amendment made by the amending Act to the primary Act includes the right to obtain an abortion on demand up to 12 weeks gestation without seeking permission. The amendments further downscale requirements in relation to facilities where a termination of pregnancy may take place, and it devolves the power make regulations and to approve facilities for the termination of pregnancies from national to provincial level.

It has replaced section 3 of the Choice on Termination of Pregnancy Act, 1996, which dealt with the approval of surgical termination of pregnancies, with a new section 3, which defines in detail the kind of place where a termination of pregnancy may take place, which transfers the power to approve of such a facility from the national Minister to the Member of the Executive of a province.

The Choice on Termination of Pregnancy Amendment Act, No. 1 of 2008 also amends the Choice on Termination of Pregnancy Act, No. 92 of 1996 so that the Member of the Executive Council must submit annual statistics of any approved facility where pregnancies are terminated.

Other South African Legislation

Aside from national legislation, South African also has provincial legislation, and local government legislation (often called "by-laws").

Provincial legislation

South Africa's nine provinces each produce a number of statutes a year, in areas for which they have either concurrent, or exclusive, legislative competence under section 104 of the Constitution of the Republic of South Africa Act, 1996. (See Schedule 4 of the Constitution for a list of the functions areas in respect of which a province may legislate).

Local government legislation

South Africa's municipalities may, in terms of the Constitution of the Republic of South Africa, 1996, make by-laws for the effective administration of the matters it has a right to administer. The areas within which a municipality may make by-laws are listed in Schedule 4 Part B, and Schedule 5 Part B, of the Constitution.

Sources of South African legislation

See also

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