Letter from Rassie Malherbe, Professor of Public Law, University of Johannesburg

AMENDING THE CONSTITUTION

The proposal to amend the Constitution in order to protect marriage as a voluntary union between a man and a woman may raise questions concerning the relationship between Parliament and the Constitutional Court, which is the guardian of the Constitution. Some may even argue that Parliament should not amend the Constitution to overturn a decision of the Court, because that would put Parliament in conflict with the Court and would interfere with the jurisdiction of the Court.

The answer to this is simple. The Court is responsible for the interpretation and application of the Constitution, but Parliament is responsible for the content of the Constitution. The Constitution itself provides that Parliament has the authority to amend the Constitution in accordance with the procedures prescribed in section 74. The Constitutional Court does not determine the content of the Constitution, nor does it have the authority to prevent its amendment by Parliament. It is then competent only to ensure that Parliament acts in accordance with the prescribed procedures. The Court’s sole responsibility is therefore to interpret and enforce the content of the Constitution as determined by Parliament.

Should Parliament find it desirable to amend the Constitution, nothing, not even the Court, can stop Parliament from doing so, provided that Parliament act in accordance with the prescribed procedures. As a matter of fact, if the Court interprets the Constitution in a way which in Parliament’s opinion does not reflect the views or values supported by the majority of South Africans, Parliament has the constitutional right and responsibility as the elected representative of the voters to amend the Constitution to overturn the decision of the Court.

There is a special joint standing committee of Parliament to consider possible amendments and report to Parliament annually. As a result, the Constitution has been amended every year since 1996. Clearly, it was never the intention that the Constitution should be cast in stone with no possibility ever to amend it. It is therefore not such a foreign notion for Parliament to amend the Constitution in order to protect marriage in accordance with the views of the majority of the people.


Rassie Malherbe
University of Johannesburg