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Drafting the South African constitution: an account by Justice Albie Sachs

06 November 2024 | Story Anthony Mthembu | Photo BORN2SHOOT

inaugural Albie Sachs Prestige Lecture 2024 — From the left (back row): Dean of the Faculty of Law, Prof Serges Kamga; Judge of the Supreme Court of Appeal, Justice Nolwazi Mabindla-Boqwana; Deputy Vice-Chancellor: Research and Internationalisation at the University of the Free State (UFS), Prof Vasu Reddy; Project Director of the Albie Collection and Chair of the Albie Sachs Trust (ASCAROL), Vanessa September; and acting Deputy Vice-Chancellor: Academic at the University of the Free State (UFS), Prof Philippe Burger. From the left (front row): Acting Vice-Chancellor of the University of the Free State (UFS), Prof Anthea Rhoda; Emeritus Constitutional Court Justice Albie Sachs; and Chief Justice of South Africa, Mandisa Maya.

The Faculty of Law at the University of the Free State (UFS) hosted the inaugural Albie Sachs Prestige Lecture on the UFS Bloemfontein Campus on 30 October 2024. The lecture – delivered by Emeritus Constitutional Court Justice Albie Sachs – was titled, ‘Who actually wrote the Constitution, and why they gave eleven unelected judges the power to strike down laws and actions of the democratically chosen parliament and president’?

In attendance at the lecture were Chief Justice of South Africa, Mandisa Maya; acting Vice-Chancellor of the UFS, Prof Anthea Rhoda; Judge of the Supreme Court of Appeal, Justice Nolwazi Mabindla-Boqwana; Senior State Advocate, Antoinette Ferreira; Project Director of the Albie Collection and Chair of the Albie Sachs Trust for Constitutionalism and the Rule of Law (ASCAROL), Vanessa September; as well as the Dean of the Faculty of Law, Prof Serges Kamga, among other high-profile guests.

In his opening address, Prof Kamga indicated that the lecture aimed to provide some responses to the core questions about the constitution and constitutionalism in South Africa. As such, Prof Rhoda echoed this sentiment, highlighting that, “when it comes to the events that preceded, surrounded, and followed the drafting and adoption of our country’s constitution, there are few commentators better placed than Judge Albie Sachs”.

The making of the constitution

As part of his lecture, Justice Sachs gave a detailed account of the making of the South African constitution. According to Justice Sachs, a total of 490 members of parliament came together to draft the constitution, which included members of the National Assembly and the Senate. These members had been mandated by 20 million South Africans who wanted a better future. As such, he described that moment as a “huge accomplishment on the part of the liberation movement”.

However, he highlighted that fulfilling this mandate was not an easy task, as it required an enormous amount of thought and mobilisation of legal technology to enable those in power at the time to surrender control of the army, police, and to some extent the economy and law-making, among other aspects. These negotiations resulted in a two-state process of constitution-making, which included the drafting of an interim constitution and the establishment of a parliament that would draft the final constitution.

Justice Sachs indicated that once the constitutional assembly sent the constitutional text to the constitutional court to ensure its compliance with agreed principles, it was found non-compliant in eleven respects, for which they had to find solutions in order for the constitution to be adopted.

As he concluded his address, Justice Sachs underscored his pride in having been involved in what he describes as a wonderfully rich story.

Forging a partnership

Subsequent to the address by Justice Sachs, the Faculty of Law and ASCAROL signed a Memorandum of Understanding (MoU), formalising the Albie Sachs Prestige Lecture as an annual event and allowing further collaboration. In fact, Prof Kamga highlighted that if Justice Sachs was not available to deliver a lecture, the trust would appoint someone in his place. To further solidify this partnership, the faculty was gifted with some of Justice Sachs’ works, including books and other materials, for its library.

Prof Rhoda expressed gratitude for this collaborative effort, saying, “We are grateful to have found such a partner in Justice Albie Sachs and the Albie Sachs Trust. May this relationship continue to blossom and bear fruit – to the benefit of our young leaders of tomorrow.”

News Archive

UFS breakthrough on SRC

2005-06-10

The Council of the University of the Free State (UFS) today unanimously approved the establishment of a Central Student Representative Council (CSRC) to ensure the democratic participation of students at its three campuses in the governance of the university.

In a major breakthrough and transformation step for student governance, the Central SRC will include representatives of the main campus in Bloemfontein, the Vista campus and the Qwaqwa campus of the UFS.

The establishment of the Central SRC follows the incorporation of the Qwaqwa campus into the UFS in January 2003 and the incorporation of the Vista campus in Bloemfontein into the UFS in January 2004.

According to Dr Ezekiel Moraka, Vice-Rector: Student Affairs, today’s decision of Council is the result of a lengthy, negotiated agreement between the three campuses. Independent experts facilitated part of the process.

With the establishment of a Central SRC, the UFS has adopted a federal student governance model whereby the CSRC is the highest representative student body on matters of common concern for all students.

However, the three campuses of the UFS will retain autonomous SRC structures for each campus with powers and responsibilities for matters affecting the particular campus.

This arrangement will be reviewed after a year to make allowance for the phasing out of students at the Vista campus, as was agreed in the negotiations preceding the incorporation of that campus into the UFS.

The central SRC will have a maximum of 12 members made up of members of the campus SRCs, including the presidents of these three SRCs. In total, the main campus will have 5 representatives, the Qwaqwa campus will have 4 representatives and the Vista campus will have 3 representatives.

From these 12 members a central SRC president will be chosen on a quarterly basis to represent the general student body at Executive Management, Senate and Council.

In another key decision and significant step forward affecting student governance, the Council also approved amendments the constitution of the Student Representative Council (SRC) of the main campus. These amendments were the results of deliberations of student organizations, the SRC and the Student Parliament of the UFS main campus.

The amendments to the constitution of the main campus SRC determines that nine of the 18 SRC members must be elected by means of proportional representation and nine on the basis of an individual, first-past-the-post election.

This decision comes in the wake of calls by certain student organizations on main campus for proportional representation to be included as a means of electing student representatives.

The following portfolios of the main campus SRC will be contested by individual candidates on the basis of first past the post:

president
secretary
academic affairs
legal and constitutional affairs
student development
arts and culture
men’s internal liaison
ladies internal liaison
media, marketing and liaison

The following nine portfolios will be contested by affiliated organizations on a proportional representation basis.

two vice-presidents
treasurerdialogue and associations
transformation
campus affairs and recreation
sport
international affairs
community service

It also is a breakthrough to have all constitutional changes processed and approved at the June meeting of the Council, with all relevant student organizations having been part of the process and accepting the outcome of the process.

According to the chairperson of the UFS Council, Judge Faan Hancke, today’s unanimous decisions on student governance are an indication of how all UFS stakeholders represented in Council are committed to finding win-win solutions in the interest of the university.

“Once again the UFS has reached another milestone in its transformation and has shown the rest of the country that we are pioneers in the field of reaching intelligent solutions to complex situations,” Judge Hancke said.

According to Dr Moraka, the central SRC constitution will come into effect from the start of the second semester this year.

MEDIA RELEASE

Issued by: Lacea Loader
    Media Representative
    Tel: (051) 401-2584
    Cell: 083 645 2454
     E-mail: loaderl.stg@mail.uovs.ac.za

10 June 2005

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