The 1996 constitution of the Republic of South Africa : ultimately supreme without a number

Abstract

In the constitutional history of South Africa, it was customary to provide the constitution with an Act number. Prior to the implementation of the 1993 Constitution (now repealed), Parliament was sovereign and as such could adopt, amend and repeal any law that it wished to. No distinction was made between a constitution and other ordinary parliamentary legislation. In pursuance of this tradition, Parliament passed the 1993 Constitution and accordingly allocated an Act number to it. Parliament became subordinate to the Constitution when it came into operation on 27 April 1994 and became the supreme law of the Republic (section 4). This switch in position meant that South Africa moved from a Westminster-type political order to one with a supreme Constitution. When the Constitutional Assembly embarked on the process of drafting a`new' Constitution, it was erroneously allocated an Act number. The numbering was made superfluous by virtue of the fact that the 1996 Constitution was supreme and that it was drafted by the Constitutional Assembly and not by Parliament. This article explores the numbering issue in detail and analyses the provisions of the Citation of Constitutional Laws Act, 2005, that brought about certain fundamental changes to the manner in which the current Constitution should be referred to.