Constitutional Amendment Process

Introduction

The Constitution of the Republic of South Africa, 1996, provides for its amendment by Act of Parliament, subject to special majorities. The amendment procedures are set out in section 74, which establishes different requirements depending on the provision being amended. The Constitution is neither entirely rigid nor entirely flexible, balancing the need for constitutional stability with the need for democratic responsiveness.

The Amendment Procedure

Section 74 establishes three tiers of amendment procedure. The first tier applies to amendments that do not affect specific entrenched provisions. The second tier applies to amendments affecting the Bill of Rights or certain constitutional institutions. The third tier applies to amendments affecting the founding provisions, the Bill of Rights, or provincial boundaries.

Two-Thirds Majority

Most provisions of the Constitution may be amended by a Bill passed by the National Assembly with a supporting vote of at least two-thirds of its members. The Bill must also be passed by the National Council of Provinces (NCOP) with a supporting vote of at least six of the nine provinces, if the amendment affects the provinces.

Three-Quarters Majority

Amendments to the founding provisions (section 1), the Bill of Rights, or provisions affecting provincial boundaries require a three-quarters majority of the National Assembly and the support of at least six provinces in the NCOP. This higher threshold reflects the fundamental character of these provisions.

Amendments Affecting Provinces

Amendments that affect provincial boundaries, powers, or functions require the approval of the NCOP, with each province having one vote. The provincial legislatures must also be consulted.

Role of the NCOP

The NCOP plays a crucial role in the amendment process, particularly for amendments affecting the provinces. The NCOP represents the provinces and ensures that provincial interests are considered in constitutional amendments. The NCOP’s approval requires the support of at least six of the nine provinces.

Judicial Review of Amendments

The Constitutional Court has jurisdiction to review constitutional amendments. In Premier of KwaZulu-Natal v President of the RSA 1996 (1) SA 689 (CC), the Court held that amendments must comply with the procedural requirements of section 74. In United Democratic Movement v President of the RSA 2003 (1) SA 495 (CC), the Court held that the Constitution contains implied limitations on the amending power, preventing amendments that would undermine the fundamental character of the Constitution.

Conclusion

The constitutional amendment process provides a mechanism for constitutional change that balances stability with democratic responsiveness. The multi-tiered procedure, the involvement of the NCOP, and the possibility of judicial review ensure that amendments are carefully considered and that the fundamental character of the Constitution is protected.