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Published online by Cambridge University Press: 28 February 2019
It is an honor to have been invited to deliver this paper on my experiences as a member of the group drafting South Africa's first Bill of Rights in the course of the constitutional negotiations in 1993 to such an august international audience. I am also very pleased to be sharing the podium with Christina Murray, since we were student contemporaries (although at neighboring universities) and have been close colleagues in the Department of Public Law at the University of Cape Town since early 1988. Despite our close working relationship over these years, however, I think that this is the first occasion upon which we have talked jointly about our experiences in assisting the drafting of the Constitution, which makes it a special occasion for us, too. Mine will be a very personal recollection and assessment of a period in the constitutional history of South Africa which I never believed possible, let alone that I should have played a small part in it.
1 As a member of the Technical Committee on Fundamental Rights from May to November 1993 at the constitutional negotiations in Kempton Park, South Africa.Google Scholar
2 More formally, the Constitution of the Republic of South Africa 1993, Act 200 of 1993, Chapter 3 of which was headed “Fundamental Rights” and came to be known as the interim or transitional Bill of Rights.Google Scholar
3 For a full account of these events, see Ebrahim, Hassen The Soul of a Nation. Cape Town: Oxford University Press, 1998; a summary account is to be found in Corder, Hugh “Towards a South African Constitution,” MLR 57 (1994): 491.Google Scholar
4 See Project 58: Group and Human Rights which produced several reports which in turn stimulated public debate on the protection of rights.Google Scholar
5 Formally known as the Republic of South Africa Constitution Act, 110 of 1983, this constitution attempted finally to deny black South Africans any future role in government thus sparking huge resistance and a popular revolt which hastened the end of apartheid.Google Scholar
6 During a national State of Emergency declared to attempt to contain resistance, and while the then State President P.W. Botha was away from office recovering from a stroke.Google Scholar
7 Initiated at the Consultative Conference in Kabwe, Zambia, in 1985 and agreed t and published in Lusaka in August 1988.Google Scholar
8 Such as the African Claims of 1943 and the Freedom Charter of 1955.Google Scholar
9 See Friedman, Steven ed. The Long Journey. Johannesburg: Ravan Press, 1993; Friedman, Steven and Atkinson, Doreen, ed. The Small Miracle. Johannesburg: Ravan Press, 1994; and Chaskalson, Richard Spitz with Matthew The Politics of Transition. Johannesburg: Witwatersrand University Press, 2000.Google Scholar
10 The Constitutional Principles are to be found in Schedule 4 of the Interim Constitution, Act 200 of 1993.Google Scholar
11 Ibid., section 73.Google Scholar
12 See Certification of the Amended Text 1997 (2) SA 97 (CC).Google Scholar
13 See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC).Google Scholar
14 See Plessis, Lourens duand Corder, Hugh Understanding South Africa's Transitional Bill of Rights. Cape Town: Juta, 1994.Google Scholar
15 There were in all 27 groups represented at the negotiating table, accounting for about 95% of South Africa's population.Google Scholar
16 For a comment on this aspect, see Spitz, (fn. 9) Chapter 20.Google Scholar
17 For a discussion of this aspect, see Currie, Iainand Waal, Johan de The New Constitutional and Administrative Law Volume One: Constitutional Law. Cape Town: Juta, 2001. 119-124 pp.Google Scholar
18 See the discussion of this aspect by Ebrahim (fn. 3) at 239 – 250.Google Scholar
19 See for example, the treatment of the right to shelter in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) and the right to health care in Minister of Health v TAC (No 2) 2002 (5) SA 721 (CC).Google Scholar
