The substantive validity of constitutional amendments in South Africa

Abstract

The South African Constitution establishes procedures for amending any of its provisions and empowers the Constitutional Court to decide on the constitutionality of these amendments. Whether or not the Constitution imposes judicially enforceable substantive limits on the powers of Parliament to amend the Constitution is not clear. This article argues that the Constitution does not impose substantive limits on the power of constitutional amendment. However, the fact that the Constitution establishes different procedures for the amendment of different sections creates an implied hierarchy within the Constitution. This implied hierarchy enables the Constitutional Court to scrutinise the substance of constitutional amendments to determine compliance with the proper procedure for each amendment. Nevertheless, once the court ascertains that an amendment has been enacted by following the appropriate procedure, the amendment cannot be attacked on substantive grounds. Contrary to the views of some scholars, the Constitution does not recognise the ‘basic structure’ doctrine. It does not recognise extra-constitutional limits on the power of constitutional amendment. The principal purpose of the explicit authorisation of the Constitutional Court to decide on the constitutionality of amendments is to affirm its exclusive jurisdiction in relation to these amendments.