The Presidential Years

The president’s respect for the Constitution could not be simply in response to judicial action. Every executive action of the president had to be consistent with the constitution. So every piece of legislation requiring the president’s assent, every proclamation he made, every presidential minute had to be scrutinised by the president’s legal adviser. It was fully appreciated that the president’s signature that puts the stamp of legality on decisions, laws and regulations is the final step of a legal journey that has to make sure that challenges like that of SARFU are not made, and if made do not have good reason.

In January 1999, not long before the end of his term as president, Mandela referred three bills back to the National Assembly because, as he explained in a statement from his office, he was required, if he had reservations about a bill’s constitutionality, to refer it back to the National Assembly for its reconsideration.

The purpose of the Broadcasting Bill was not unconstitutional, but powers it gave the minister of posts, telecommunications and broadcasting to regulate, formulate policy and give general directions were couched in a ‘an imprecise, potentially over-broad’ way that could impact on the independent decision-making function of the Independent Broadcasting Authority.

The Tobacco Products Control Amendment Bill restricted sponsorship of events by tobacco-related companies. The purpose was not unconstitutional but a more precise definition of ‘organised activities’ and ‘public places’ was needed to avoid constitutional challenge.

The Liquor Bill dealt with provincial liquor licensing. National legislation could only handle this under circumstances defined by the Constitution. This was the first case of its kind, so there were no legal precedents the president could follow. Only the Constitutional Court could authoritatively pronounce on the Bill’s constitutionality, but the president couldn’t refer it to the Constitutional Court until it had come back to him after re-consideration by the National Assembly.

The President’s statement concluded:

The President would want to stress that Bills approved by Parliament are not lightly referred back to the National Assembly. Section 79 of the Constitution does however allow a special opportunity for any Bill so approved to be reconsidered for the purpose of placing it on its firmest constitutional foundation. It is of course up to Parliament itself to decide whether such concerns need be dealt with and how.

The President has been advised that the three relevant Ministers have indicated that they would welcome a further opportunity to resolve or remove any constitutional uncertainties, as they would want the Bills to be enacted into law only on a sound constitutional footing and best placed to withstand any constitutional challenge.276