Legislative changes given the green light by ConCourt in 2021

In its founding provisions, the constitution establishes itself as “the supreme law of the republic” and states any laws which are inconsistent with its provisions are invalid.

However, different individuals and organisations are almost constantly challenging the legislation in various courts in the belief they don’t meet the test. Having legislation declared invalid ultimately requires the Constitutional Court’s thumbs up.

The Citizen looks at some of the legislative changes to which it gave the green light in 2021.

• The Regulation of Interception of Communication and Provision of Communication-Related Information Act (Rica)

In one of its first judgments this year, in February it declared Rica unconstitutional to the extent that it failed to provide for safeguards or for the notification of surveillance subjects or to adequately prescribe procedures to ensure the lawful management of data obtained through surveillance.

This on the back of a case first launched in 2017 by the amaBhungane Centre for Investigative Journalism and its managing partner, Sam Sole. The case came in the wake of Sole unknowingly being placed under surveillance while covering the National Prosecuting Authority’s 2008 decision to drop corruption charges against former president Jacob Zuma.

READ MORE: ConCourt confirms unconstitutionality of Rica surveillance

The apex court gave parliament 36 months to bring the legislation up to scratch. In the meantime, it ruled Rica would be deemed to include additional sections requiring disclosure to the designated judge when the person in respect of whom an interception warrant is being sought is a journalist or practising lawyer, as well as “post-surveillance notification” to a surveillance subject.

• The Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda)

More than 13 years after it was first published, the Constitutional Court in July declared Jon Qwelane’s “Call me names but gay is not okay” column to be hate speech.

At the same time, it confirmed the Supreme Court of Appeal’s (SCA) declaration that Section 10 of Pepuda, which banned language which “could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred”, was unconstitutional.

The late Qwelane’s column landed him with a hate speech complaint from the South African Human Rights Commission, to which he responded with a constitutional challenge to Pepuda, under which he was charged.

READ MORE: Qwelane’s column ‘hate speech’, ConCourt rules

Both matters were dealt with together, with the High Court in Johannesburg initially finding the column did amount to hate speech. In November 2019, the SCA overruled the high court on both counts.

A challenge was then sent to the apex court, which agreed the legislation was overly vague. It found Qwelane’s column had amounted to hate speech under it. Parliament was given 24 months to remedy the defect. In the meantime, the court provided a “reading in”.

• The Births and Deaths Registration Act (BDRA)

The Constitutional Court in September declared as unconstitutional section 10 of the BDRA, which only provided for a child born out of wedlock to be registered under his or her father’s name at the joint request of both parents, or with the written consent of the child’s mother.

In the judgment, Acting Justice Margie Victor said: “Section 10 of the Act undermines the role an unmarried father can play in this naming aspect. The parental rights of unmarried fathers are conditional in the sense they are dependent on the status of their relationship with the mothers.”

The section was severed from the Act with immediate effect.

– bernadettew@citizen.co.za