THEME COMMITTEE 4
Theme Committee 4 dealt with Fundamental Rights. The mandate and work of the committee was guided by Constitutional Principle II which states:
“Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable (capable of being decided by a court) provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter Three of the Constitution.”
- Nature of Bill of Rights and application
- Human dignity
- Privacy
- Servitude and forced labour
- Freedom and security of the person
- Freedom of expression
- Access to information
- Freedom of religion, belief and opinion
- Freedom of association
- Life
- Equality
- Socio-economic rights
- Property
- Education
- Environment
- Economic activity
- Labour relations
- Freedom of language and culture
- Other socio-economic rights
- Reproductive rights
- Political rights
- Citizens’ rights
- Freedom of movement
- Freedom of residence
- Freedom of demonstration and petition
- Children’s rights
- Administrative justice
- Access to courts
- Detained, arrested and accused persons
- Limitation of rights
- States of emergency and suspension of rights
- Interpretation of Bill of Rights
Theme Committee 4 in numbers:
Theme Committee 4 held 32 meetings from 19 September 1994 to 14 August 1995. This Theme Committee received the bulk of submissions from the public and had processed 5 634 submissions by 30 June 1995. After the Theme Committee had completed its work, another 1 360 submissions were received. 12 000 petitions were received by the committee. A workshop on Human Rights and International Law was held in April 1995, organised jointly by the CA, Parliament and the Raoul Wallenberg Institute from Sweden. Members also attended workshops on gender, pornography, abortion and freedom of expression organised by various organisations such as the University of the Western Cape Community Law Centre, the Institute for Multi-Party Democracy and the Freedom of Expression Institute.
A number of national sector public hearings were also attended by members of the Theme Committee. The sectors involved were:
- Children’s rights
- Labour
- Women
- Religion
- Traditional authorities
- Youth
- Business
- Land
- Socio-economic rights
By the end of the process, Theme Committee 4 had presented 33 reports and explanatory memoranda and a draft Bill of Rights which was tabled at the Sub-Committee of the Constitutional Committee on 9 and 10 October 1995.
Chairpersons: Anthony James Leon (DP); Membathisi Mphumzi Shepherd Mdlalalana (ANC); GB Myburgh (NP).
Members: Kadar Asmal; Dirk Bakker; Ismail Cachalia; Sheila Camerer; Judy Chalmers; Max Coleman; Bathabile Olive Dlamini; Gora Ebrahim (alt); Sentle Fenyane; Tembeka Gamndana; Xolile Gasa (alt); Devagie Govender; Pregaluxmi Govender (alt); Joyce Kgoali; Evelyn Lubidla (alt); Brigitte Mabandla; Tintswalo Godwin George Mashamba; Mario Masher (alt); Piet Mathebe; Lindiwe Mbuyazi (alt); Kenneth Meshoe (alt); Simon Mfayela (alt); Webster Mfebe (alt); Mangaqa Albert Mncwango; Ismail Jacob Mohamed (alt); Rapulane Sydney Molekane; Corne Mulder; Mavivi Myakayka-Manzini; Makhosazana Abigail Alicia Njobe (alt); Muntukayise Ntuli; Naledi Pandor; Malefane Phenethi (alt); Mziwandile Piliso; Ray Radue; Solly Madlingozi Rasmeni; Bhadra Ranchod; Rodney Rhoda; Ebrahim ‘Cas’ E Saloojee; Richard Sizani; Ben Skosana; Dene Smuts (alt); Solomon G; Jabu Elsie Sosibo; Enver Surty; Elizabeth Thabethe; Barbara Thompson; Tovhowani Tshivhase; Vuyiswa Tyobeka; Valerie Viljoen; Suzanne Vos; Carl Werth (alt); Lulu Xingwana (alt).
The Technical Committee: Professor Halton Cheadle; Professor John Dugard; Professor Sandra Liebenberg; Professor Ignatius Rautenbach.
Staff: John Tsalamandris, Managing Secretary; Zuleiga Adams, Minute Secretary; Pamela Crowley, Administrative Secretary.
Drafting the Bill of Rights Theme Committee 4
Members of Theme Committee 4 in Parliament. Subash Jeram / Constitutional Assembly
Members of Theme Committee 4 in Parliament. Subash Jeram / Constitutional Assembly
Theme Committee 4 was the parliamentary working committee charged with the important task of drafting Chapter 2 of the new Constitution, which was to enshrine the foundation of our democracy, the Bill of Rights. The mandate and work of the committee was guided by Constitutional Principle II of the Interim Constitution which required that:
“All universally accepted fundamental rights, freedoms and civil liberties’ should be included in the Constitution as entrenched and justiciable provisions.”
It was also required to pay regard to South Africa’s first formal Bill of Rights in Chapter 2 of the Interim Constitution of 1993, which had been negotiated at Kempton Park. Yet it was not obliged to retain what had been agreed to at Kempton Park – a distinction which became particularly important in relation to the property clause.
An underlying theme is the ‘never again’ principle. The great majority of the drafters in the Constitutional Assembly had experienced for themselves the harshness of life under apartheid. The state had assumed powers to control lives in every way, invade people’s homes, forced them off their land and dictated to them what they could read, say and whom they could love. Never again should anyone in power, whomever they might be, be allowed to violate the dignity and control the lives of the people in an arbitrary, cruel or unfair way. And not all the issues confronting the drafters related to the damage done by apartheid. The majority of the drafters were activists concerned about class justice in the new society. A large block of African feminists was determined to confront the indignities and injustices imposed by sexism, patriarchy and gender-based violence.
I am not a lawyer but a social scientist specialising in women and development. I believe that equality, freedom, development and peace are inseparable, and that women’s rights are human rights – thus issues relating to women’s rights and women’s equality are very near to my heart. I therefore saw my role in the process of drafting the Bill of Rights as that of ensuring that women’s rights were enshrined. Armed with the experiences and the vision expressed in the two charters adopted by women, my mission was to ensure that I gave a voice to women in the discussions.
Mavivi Myakayaka-Manzini
then ANC representative, Theme Committee 4
We set about our duties in a very methodical fashion. After all, the ANC had been considering rights since 1946, and had drafted the Freedom Charter of 1955 and the Harare Declaration of 1989. Our caucus was briefed on these foundational documents and provided with copies of the document ‘Ready to Govern’, which had been prepared by our leaders in exile to guide the ANC once it became the governing party in South Africa. We also held workshops with experts and politicians from other countries, such as Canada and Germany.
Naledi Pandor
Then ANC Deputy Chair, Theme Committee 4
I was concerned that some of us were perhaps rather inexperienced to take responsibility for such a critical chapter of the Constitution. A Bill of Rights was what I felt the struggle had been all about. Our leaders, Kader Asmal and Brigitte Mabandla, were an invaluable resource, because they had international experience and had been at the core of our struggle.
Enver Surty, an experienced human rights lawyer and seasoned activist played a critical role in our team. He investigated international case law, provided us with accessible summaries, and worked at night to write ANC submissions
Membathisi Mphumzi Shepherd Mdladlana, as the then President of the South African Democratic Teachers Union (SADTU) and a former school principal, was a tough taskmaster. We had to be prepared for each meeting, bring written submissions and present them with confidence. He made us anticipate and prepare for opposition party arguments and made me chief presenter, supported when I faltered by Enver Surty and Mavivi Myakayaka.
Naledi Pandor
then ANC Deputy Chair, Theme Committee 4
Hassen Ebrahim, Leon Wessels and Cyril Ramaphosa. Subash Jeram / Constitutional Assembly
Theme Committee 4 engaged in vibrant and robust debates on these issues and often worked into the small hours of the night to craft this important founding document of our democracy. The Bill of Rights is also the product of the work of NGOs, academics, international advisors and the submissions of ordinary South Africans during the years of South Africa’s transition to democracy.
All of these coalesced into a document which is proudly owned and fiercely defended by all
South Africans.
Cyril Ramaphosa
Then Chair of the Constitutional Assembly
The Issues
Sheila Camerer, NP negotiator on the Bill of Rights in Theme Committee 4 of the Constitutional Assembly. Subash Jeram / Constitutional Assembly
The kind of issues that had to be addressed in the Committee responsible for the Bill of Rights were listed at the outset:
Socio-Economic Rights
- What social and economic rights should be included in the Constitution?
- What kind of environmental rights should there be?
- Should there be a right to strike?
- Should lock-outs by employers and closed shops be permitted?
Freedom of Language and Culture
- How should the diversity of language and culture be recognised, promoted and encouraged (as stated in Constitutional Principle III)?
Political Rights
- Should parties that propagate violent and racist policies be allowed to participate in public life?
- Who should have the right to vote?
Administrative Justice; access to Courts and Detained, Arrested and Accused Persons
- Should every accused person be entitled to bail?
- Should every accused person be entitled to legal representation at the state’s expense?
Citizens’ Rights
- What are citizens’ rights?
Freedom of Movement and Freedom of Residence
- What are the rights that relate to these freedoms?
Limitation of Rights; States of Emergency and Suspension of Rights
- How should fundamental rights be protected and enforced?
- What are the first, second and third generation of rights?
- What is the relationship of various Charters of Rights to the Bill of Rights?
- Should all fundamental rights be capable of limitation?
- If so, under what conditions?
The ANC assigned me to Theme Committee 4, first as observer, then as full member and
finally, as a negotiator. The responsibility of drafting the submissions was assigned to me … I was thus compelled to research widely and be conversant with the International Bill of Rights, the Declaration of the Rights of the Child, the African Charter on Human and Peoples’ Rights and Obligations, domestic constitutions of countries such as Germany, Canada, India, Uganda, the African Claims document and, most importantly, the Freedom Charter.
Enver Surty
Then ANC representative, Theme Committee 4
We drafted background research memoranda on a wide range of rights … [which] examined the extent that these rights were protected, both in international and regional human rights instruments as well as in the constitutions of other countries. They concluded with proposals for the protection of the relevant rights in draft clauses. These memoranda and the draft clauses were then vigorously debated in Theme Committee 4 and later in the Constitutional Assembly. Amendments were proposed, and further research and redrafting mandated. Through this process the Bill of Rights gradually took shape and evolved to its present form.
Naledi Pandor
Then ANC Deputy Chair, Theme Committee 4
Members of Theme Committee 4
Members of Theme Committee 4. Subash Jeram / Constitutional Assembly
Some of the key members of Theme Committee Four were Membathisi (Shepherd) Mdladlana (ANC Chair), Ray Radue (NP alternate Chair) and Naledi Pandor (ANC Deputy Chair). Tony Leon represented the Democratic Party, and Gert Myburgh the National Party.
ANC Chair Membathisi (Shepherd) Mdladlana talking to a committee member. Subash Jeram / Constitutional Assembly
The ANC complement to Theme Committee 4 was a formidable team which included Membathisi Mdladlana (convener), Brigitte Mabandla, Mavivi Myakayaka-Manzini and Enver Surty.
When the first meeting of this committee took place, the workload appeared so onerous
that the representatives of the various political parties deemed it advisable that two
chairpersons should share the burden of responsibility. It was unanimously agreed that
Membathisi Mphumzi Shepherd Mdladlana of the ANC and I would share the duty of
chairing alternative meetings of the working committee. As it turned out, he and I struck
up an excellent working relationship of mutual respect and we were able ultimately to
guide the committee to consensus on most of the issues.
Ray Radue
Then NP representative, Theme Committee 4
Submissions and Reports
Theme Committee 4 received the bulk of submissions from the public and had to process 5 634 submissions by 30 June 1995. By the time that the Theme Committee had completed its work, it received 1 360 further submissions and 12 000 petitions. In addition, a workshop on Human Rights and International Law was held in April 1995. It had been organised jointly with both national and international partners. Members also attended workshops on gender, pornography, abortion and freedom of expression, organised by various organisations such as the University of the Western Cape Community Law Centre, the Institute for Multi-Party Democracy, and the Freedom of Expression Institute. By the end of the process, Theme Committee 4 had presented 33 reports and explanatory memoranda and a draft Bill of Rights which was tabled at the Subcommittee of the Constitutional Committee on 9 and 10 October 1995.
In Their own Words
In celebration of the 20th anniversary of the signing of the Constitution, the Parliament of the Republic of South Africa commissioned a series of books which reflected on the work of the different Theme Committees of the Constitutional Assembly. Members of the Theme Committee 4 were asked to reflect on the drafting of the Bill of Rights. These are some of their reflections.
Enver Surty (left front), Mohseen Moosa (left back), Willie Hofmeyr (right back) and Collins Chabane. Subash Jeram / Constitutional Assembly
An Honour
What an honour it was for me to be appointed by Cyril Ramaphosa, to convene Theme Committee 4 … It was a learning experience for me to navigate and negotiate sensitive issues in a country with our history of human rights, and to engage with former adversaries who had thought black people had no basic human rights. In hindsight I realise that it was during this period that I
learnt diplomacy.
Membathisi (Shepherd) Mdladlana
then ANC Chair, Theme Committee 4
The Challenges
The challenges that Theme Committee 4 faced were enormous. To begin with, they were required to deal with the demand for the protection of minority rights, which had to be counterbalanced against the will and interests of the majority. Another area was the demand for the transformation of society, which found expression in a range of socio-economic rights. Furthermore, it was also necessary to deal with a range of individual and group rights, including the right to life, equality and the protection and promotion of culture and religion.
Hassen Ebrahim
Then Executive Director of the Constitutional Assembly
I remember sleeping very little in the period that followed. None of us did. We had a year
and a half to resolve the differences between parties on issues that would determine the
future of our country. And some of those issues were fundamental: the death penalty; the right to abortion, to strike and to lock-out; as well as property rights.
Willie Hofmeyr
then Technical Team, Theme Committee 4
The Approach
Respected political analysts … correctly pointed out that the perspective of the ANC was based on egalitarianism, always seeking rights that included but clearly went beyond the individual. This approach had a strong social, community and humanitarian dimension which was largely influenced by the African concept of ‘ubuntu’ in terms of which you acquire your being through others – ‘I am because you are’. The NP and the DP, on the other hand, promoted and favoured the values of libertarianism that sought to promote individual rights and freedom in a laissez faire environment with minimal interference by the State.
Enver Surty
then ANC representative, Theme Committee 4
Deliberations in the committees were very difficult, because participants brought the positions of their political parties to the table. Frequently the discussions held in committees were not only extensive but also antagonistic. I can recall difficult debates around socio-economic rights, equality, gender, race, affirmative action, language, property, culture, the separation of powers, as well as provincial and local government.
Brigitte MABANDLA
then ANC representative, Theme Committee 4
Looking Back
South Africa adopted its much-admired Constitution 20 years ago. It seems surreal to
recall that process today. We were so enthusiastic, so young in governance, so idealistic,
so convinced our presence in Parliament would alter SA radically. We have altered SA, but not to the degree we imagined then. Our Theme Committee 4 had a crucial role to play in the constitution-writing process, and we tackled the challenge with enthusiasm and commitment.
Naledi Pandor
Then ANC Deputy Chair, Theme Committee 4
Despite all the historical improbabilities, a modern, mature and liberal Constitution has been
born out of deadlock and settlement … I’ll tell you who lost what … A small group of once powerful white men … confuse their own political demise with the demise of Afrikanerskap, a political construct they created. Because they based their power on the exploitation of Afrikaans (which is free at last, and flourishing) and on Afrikanerskap, they base their new crisis of powerlessness on what they project as the decline of Afrikaner identity under the new order.
Dene Smuts
then DP representative, Theme Committee 4
The constitutional negotiating process was frenetic and took its toll, but also laid the foundations for mutual understanding between formerly divided politicians as to what would be best for our country … For the past 20 years, all four provisions in the Bill of Rights … the right to life, property rights, equality (in all its aspects) and the rights of children – have served South Africa well, and their justiciability has been magnificently upheld by our courts.
Sheila Camerer
then NP representative, Theme Committee 4
When I look back … I am struck by the commitment shared by all involved in the process to ensure that it contributed to improving the lives of our people and freeing their potential. It was this commitment that helped resolve seemingly intractable conflicts and divisions on various aspects of the Bill of Rights. It was a time of great idealism and hope for a better future built on the cornerstones of democracy and human rights. The Constitutional Assembly displayed great vision and foresight by agreeing to a holistic, integrated set of rights which recognise and protect all significant aspects of human well-being and prosperity.
Professor Sandra Liebenberg
then Technical Advisor, Theme Committee 4
Twenty years into democracy we as South Africans have a duty to the country and to one another to bridge the divide and forge a strong, unified nation in which everyone is respectful of the rights of others. Our Bill of Rights clearly illustrates the path for us all to follow. We dare not fail in this task.
Mangaqa Albert Mncwango
then IFP representative, Theme Committee 4
Today’s Challenges
Looking back across 20 years, we are acutely aware that the struggle for affirmation, recognition and protection of our rights still has some way to go. We have experienced these rights being invoked in circumstances we might not have envisaged, in ways often inconvenient to the State or disconcerting to some in our society.
Cyril Ramaphosa
Then Chair of the Constitutional Assembly
Much still needs to be done to fully implement the Bill of Rights – in particular the clause on Freedom and Security of the Person. Despite the laws passed by our democratic government and the campaigns that have been adopted, violence against women and children continue in our homes and communities. Violence and destruction of property still occur during what should be peaceful demonstrations, and the tendency of our security forces is to meet violence with more violence. Very little dialogue has been taking place on the challenges of poverty, inequality and unemployment we still face, and on our political differences. We still have to make our Constitution a living document respected by all.
Mavivi Myakayaka-Manzini
then ANC representative, Theme Committee 4
Twenty years since the adoption of this visionary Bill of Rights, poverty and inequality still
divide our society along the fissures of race, class and gender … Despite the progress that has been made it is more urgent than ever before that not only the government but society as a whole should recommit themselves to realising the socioeconomic rights enshrined in the Bill of Rights. If tangible progress is not made in this regard, I fear that the cornerstone of our Constitution will crack, threatening the stability of our Constitutional democracy
Professor Sandra Liebenberg
then Technical Advisor, Theme Committee 4
Corné Mulder (second from right). Subash Jeram / Constitutional Assembly
It is 20 years later, and we can ask ourselves where we stand today in this interesting and exciting phase of Constitutional development. The only constant in life is change. The agreements reached first with the Interim Constitution in 1993 and later with the current Constitution in 1996, were reached by the first generation of leaders at the time, namely Mandela, De Klerk, Viljoen, Buthelezi, De Beer, Holomisa and many others.
We are now entering a new phase [with a] third generation of leaders. They did not participate in the negotiations. They did not experience the strife, violence, despair, conflict and war. Now more and more voices are being heard, stating that … those who were there sold us out. By doing this they are taking a radical and extreme position …
The effect of this will be that the common middle ground that was found after so much strife and conflict, will be eroded and may even fall away … This cannot and should not be allowed to happen … What did we hope to achieve when we embarked on this perilous journey 20 years ago? After all was said and done, we hoped to achieve a bright future for all our children under the beautiful African sun.
Corné Mulder
then Conservative Party member of the Constitutional Assembly, Theme Committee 4
