South Africa's First Bill of Rights: Random Recollections of One of it's Drafters

Hugh Corder

doi:10.1017/S0731126500004157

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South Africa's First Bill of Rights: Random Recollections of One of it's Drafters

Published/Copyright: February 28, 2019

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From the journal International Journal of Legal Information Volume 32 Issue 2

Abstract

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.

Professor of Public Law and Dean, Faculty of Law, University of Cape Town. This is a reconstruction of my talk from notes used. © Hugh Corder 2004.

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.
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.
3
For a full account of these events, seeEbrahimHassenThe Soul of a Nation. Cape Town: Oxford University Press, 1998; a summary account is to be found in CorderHugh “Towards a South African Constitution,” MLR57 (1994): 491.
4
See Project 58: Group and Human Rights which produced several reports which in turn stimulated public debate on the protection of rights.
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.
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.
7
Initiated at the Consultative Conference in Kabwe, Zambia, in 1985 and agreed t and published in Lusaka in August 1988.
8
Such as the African Claims of 1943 and the Freedom Charter of 1955.
9
See Friedman Steven ed. The Long Journey. Johannesburg: Ravan Press, 1993; FriedmanSteven and AtkinsonDoreen, ed. The Small Miracle. Johannesburg: Ravan Press, 1994; and ChaskalsonRichard Spitz with MatthewThe Politics of Transition. Johannesburg: Witwatersrand University Press, 2000.
10
The Constitutional Principles are to be found in Schedule 4 of the Interim Constitution, Act 200 of 1993.
11
Ibid., section 73.
12
See Certification of the Amended Text 1997 (2) SA 97 (CC).
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).
14
See Plessis Lourens du and CorderHughUnderstanding South Africa's Transitional Bill of Rights. Cape Town: Juta, 1994.
15
There were in all 27 groups represented at the negotiating table, accounting for about 95% of South Africa's population.
16
For a comment on this aspect, seeSpitz (fn. 9) Chapter 20.
17
For a discussion of this aspect, seeCurrieIainand WaalJohan deThe New Constitutional and Administrative Law Volume One: Constitutional Law. Cape Town: Juta, 2001. 119-124 pp.
18
See the discussion of this aspect by Ebrahim (fn. 3) at 239 – 250.
19
See for example, the treatment of the right to shelter in Government of the Republic of South Africa v Grootboom2001 (1) SA 46 (CC) and the right to health care in Minister of Health v TAC (No 2) 2002 (5) SA 721 (CC).

Published Online: 2019-02-28

Published in Print: 2004-06-01

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https://doi.org/10.1017/S0731126500004157