Authored By: Kwanele Portia Ngcobo
University of South Africa (UNISA)
Introduction
The Republic of South Africa’s 1996 Constitution’s preamble is more than just an introduction; it is the post-apartheid democratic project’s moral compass and interpretive cornerstone.[1] The framers clearly rejected the systematic exclusion of the past in favor of a transformational constitutionalism based on universal human dignity when they declared that “South Africa belongs to all who live in it, united in our diversity.” Nevertheless, this fundamental idea is confronted with an unparalleled obstacle. Formal submissions to the Joint Constitutional Review Committee aim to change the preamble to state that the country exclusively belongs to its “legal citizens.” This change is motivated by strong public demand and shifting political coalitions.[2]This growing legal controversy is significant because it poses a threat to the meticulously crafted structure of the Bill of Rights. The legal ramifications go far beyond a symbolic textual change, despite supporters’ claims that limiting the preamble is an essential exercise of state sovereignty to protect limited national resources.[3]
Changing the preamble creates an instant legal contradiction because “everyone” is constitutionally guaranteed fundamental rights to social security, housing, and healthcare.[4] In addition to blatantly violating the Section 9 equality clause and weakening South Africa’s legally enforceable duties under international law, it runs the possibility of producing a divided system of human worth.[5]This article contends that the proposed change violates the fundamental framework of the constitutional system and is an unlawful retreat of human rights. It argues that changing the inclusive ethos of the preamble jeopardizes the fundamental principles outlined in Section 1, legally necessitating a nearly impossible 75% parliamentary majority instead of the typical two-thirds vote.[6] In conclusion, the article illustrates that the preamble must continue to be an unwavering stronghold defending everyone inside South Africa’s borders and that the resource distribution crisis cannot be resolved by constitutional exclusion.
Section 1: The Preamble as an Anchor for Interpretation and Substance
1.1 The Juridical Nature of the Preamble
Determining the precise legal status of the preamble under South African jurisprudence is a prerequisite for assessing the proposed amendment’s constitutional legality. The Constitutional Court of South Africa has continuously acknowledged the preamble as an essential interpretative and substantive foundation of the post-apartheid democratic enterprise, in contrast to other jurisdictions where preambles are seen as merely rhetorical prefaces devoid of independent legal power. The preamble, which was created during the shift from an exclusive, minority-ruled dictatorship to an equitable constitutional democracy, does not exist outside of the Constitution; rather, it permeates the entire document with its fundamental intent.[7]
The framers created a universal, non-negotiable floor of human dignity and spatial belonging by stating that belonging is dependent only on presence (“all who live in it”) rather than a status that is politically or racially determined. As a result, the preamble has frequently been used by the Constitutional Court to settle internal conflicts in the Constitution’s text and to direct the interpretation of statutory sections. The Court stressed in S v. Mhlungu that the Constitution must be read in its whole, with the preamble acting as the main guide to reveal the intentional and transformational meaning of the substantive clauses.[8]
1.2 The Doctrines of Purposive and Transformative Interpretation
The dual theories of transformative and purposive interpretation, which predominate in South African constitutional law, actualize the preamble’s interpretive weight. The legal system must actively seek to reorganize society away from ingrained hierarchies and inequities in favor of an egalitarian, inclusive community, according to transformative constitutionalism, which was memorably expressed by Karl Klare and supported by subsequent Chief Justices.[9]
Courts do not examine the text in a vacuum when interpreting the bounds of governmental power or the extent of rights. Rather, they use a purposeful strategy that aims to promote the fundamental principles mentioned in the preamble. For instance, the preamble’s pledge to “improve the quality of life of all citizens and free the potential of each person” significantly influenced the Court’s interpretation of socio-economic rights in Government of the Republic of South Africa v. Grootboom.[10]
1.3 Case Law Analysis on the Universalist Nature of “Belonging”
The courts have consistently affirmed and operationalized the universalist nature of the phrase “all who live in it.” The Constitutional Court was challenged in the historic case of Khosa v. Minister of Social Development about the Social Assistance Act’s statutory prohibition on permanent residents receiving social assistance.[11]
This discrimination based on resources was expressly rejected by the Court. Mokgoro J, writing for the majority, said that the exclusion of permanent residents was unreasonable and unfair, citing the preamble’s inclusive spirit, equality, and human dignity. The Court made it clear that everyone who has settled in South Africa, regardless of their official citizenship status, is subject to the constitution’s commitment to creating a society founded on social fairness and fundamental human rights. Sections 26 and 27 of the Bill of Rights specifically read “everyone” in accordance with the preamble’s assertion of universal belonging.
Similar to this, in Union of Refugee Women v. Director: Private Security Industry Regulatory Authority, the Court reiterated that the fundamental dignity of refugees and asylum seekers cannot be compromised, even though it acknowledged that some regulatory distinctions could be made between citizens and non-citizens based on employment sectors.[12]The jurisprudence confirms that “belonging” in South Africa is a lived, spatial reality rather than a purely administrative designation. The proposed amendment directly seeks to overturn this deeply entrenched line of judicial reasoning, creating an ideological rupture between the text of the preamble and the established case law of the apex court.
Section 2: Section 74 and the Rigid Architecture of Amendment Thresholds
2.1 The Procedural Mechanisms of Section 74
There is a complicated procedural ambiguity surrounding the proposed revision to the preamble. The preamble itself is not specifically mentioned in Section 1 nor included in Chapter 2. The change’s proponents contend that as the preamble is an opening paragraph, it can be changed with the usual two-thirds majority needed for general constitutional text under Section 74(3)[13]. But because it ignores the substantial connection between the preamble and the Republic’s unchangeable essential ideals, this procedural assumption is legally faulty.
2.2 The “Basic Structure” Doctrine in South African Jurisprudence
The “basic structure” concept must be examined in order to comprehend why a two-thirds majority is insufficient for the proposed amendment. This doctrine, which originated in Indian constitutional jurisprudence through the seminal case of Kesavananda Bharati v. State of Kerala, asserts that a parliament’s authority to amend a constitution is not unrestricted and does not go so far as to destroy or modify the fundamental characteristics and identity of the document itself.[14]
The Court implied in Executive Council, Western Cape Legislature v. President of the Republic of South Africa that some essential elements of the constitutional order are outside the purview of regular amendment procedures.[15] More specifically, the Court stressed in Premier, Limpopo Province v. Speaker of the Limpopo Provincial Legislature that the fundamental principles in Section 1 serve as the cornerstone of the entire legal system.[16]
Section 3: The Bill of Rights and the Contradiction of Restricted Rights
3.1 The Universal Application of “Everyone” in Chapter 2
The significant structural contradiction that amending the preamble creates into Chapter 2 of the Constitution is the main legal disaster. The universalist language of the South African Bill of Rights is the reason it is revered throughout the world. Rather than giving rights to “the citizen,” the vast majority of its sections give rights to “everyone.” “Everyone is equal before the law” is guaranteed by Section 9; “everyone has inherent dignity” is declared by Section 10; “everyone’s” right to life is safeguarded by Section 11; and “everyone” is guaranteed access to adequate housing, healthcare services, enough food, and water by Sections 26 and 27.[17]
3.2 The Section 9 Equality Clause and the Prohibition of Arbitrary Discrimination
When evaluated against Section 9 of the Constitution, which forbids unfair discrimination, the proposed change encounters an insurmountable legal obstacle. While Sections 9(3) and 9(4) forbid the state and common people from unjustly discriminating against anyone, directly or indirectly, on the basis of race, gender, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth, Section 9(1) guarantees equality before the law and equal protection.[18]Although Section 9(3) does not specifically name “citizenship” as a forbidden cause, the Constitutional Court has established a strong body of case law on “analogous grounds.” The Court concluded in Larbi-Odam v. MEC for Education (North West) that citizenship is an unlisted basis of discrimination that can lead to unfairness if it targets a disadvantaged group in a way that diminishes their basic human dignity.[19]
3.3 The Section 36 Limitations Analysis
The rigorous, multifaceted reasoning requirement outlined in Section 36(1) of the Constitution must also be met by any attempt to restrict the universal rights provided in Chapter 2 based on a revised preamble. According to Section 36, the Bill of Rights may only be restricted in terms of a general law and only to the extent that the restriction is acceptable and justified in an open, democratic society founded on equality, freedom, and human dignity.[20]
The court must weigh several factors, including:
- The nature of the right being limited;
- The importance of the purpose of the limitation;
- The nature and extent of the limitation;
- The relation between the limitation and its purpose; and
- Less restrictive means to achieve the purpose.
Section 4: International Law Obligations and the Illusion of Sovereignty
4.1 Section 39 and Section 233 Checkpoints
The fully interwoven international law system in South Africa is the last structural obstacle to the proposed preamble revision. The framers purposefully made the Constitution extremely responsive to international standards, establishing several checkpoints that demand that the court and the executive branch conform domestic law to international commitments. International law must be taken into account when a court, tribunal, or forum interprets the Bill of Rights, according to Section 39(1)(b) of the Constitution.[21]
Both legally binding treaties and non-binding customary international law must adhere to this criteria; it is not optional. Additionally, Section 233 creates a strong interpretive presumption that states that any court reading a piece of legislation must give preference to any reasonable meaning that complies with international law above any alternative view that does not.[22]
4.2 Binding International Treaties and the Non-Refoulement Principle
South Africa is legally bound by multiple global and continental human rights treaties that strictly prohibit the systemic discrimination and exclusion outlined in the proposed amendment. Key among these international agreements are the 1951 UN Refugee Convention, its 1967 Protocol, and the 1969 Organization of African Unity (OAU) Convention addressing refugee matters in Africa.[23]
4.3 The Legal Illusion of Populist Sovereignty
An appeal to a strict, populist notion of state sovereignty—the notion that a democratically elected parliament should have the unrestricted authority to establish the limits of the political community and distribute resources as it sees fit—is what propels the amendment movement.
But in the contemporary period of global constitutionalism, sovereignty is no longer absolute or unrelated to accountability for human rights. In S v. Makwanyane, the Constitutional Court observed that sovereignty must be used within the parameters of a constitutional order that upholds universal human values.[24]
Political actors engage in a symbolic, populist diversion from the challenging task of institutional reform by pursuing a text-based, exclusionary amendment. The universalist core of the Bill of Rights, the equality requirements of Section 9, and the international treaties that South Africa cannot simply choose to put to renounce would nonetheless bind the amendment even if it were to successfully navigate the procedural maze of Section 74. As a reminder that the legitimacy of the constitutional enterprise depends on its dedication to mankind as a whole rather than the arbitrary boundaries of citizenship, the preamble’s notion of belonging must continue to be inclusive and open.
Conclusion
The significant legal inconsistencies and systemic hazards brought about by the current proposal to change the South African Constitution’s preamble have been assessed in this article. The analysis has determined that the universalist baseline of the preamble cannot be separated from the fundamental principles of equality and dignity by analyzing the tiered amendment architecture of Section 74. The examination of case law verified that the Constitutional Court routinely uses the phrase “all who live in it” to extend Chapter 2 safeguards to vulnerable non-citizens, bringing domestic legislation into compliance with duties under binding international law.
In conclusion, this analysis supports the main argument that changing the preamble to read “legal citizens” is an unlawful regression of human rights that undermines the fundamental framework of the constitutional order. A 75 percent parliamentary supermajority threshold is legally triggered when the preamble’s interpretation context for the phrase “everyone” in the Bill of Rights is narrowed, so substantively altering Section 1.
The rejection of the proposed amendment by Parliament’s Joint Constitutional Review Committee as unconstitutional and a perversion of transformative constitutionalism was in order and stood for the humility component of the Constitution. The executive branch must implement strong administrative reforms to alleviate resource scarcity rather than seeking discriminatory textual changes. In particular, the state ought to give top priority to improving border management technology, addressing institutional corruption, and fixing processing delays in the Department of Home Affairs. It is not acceptable to use constitutional language as a political stand-in for efficient administrative governance.
Bibliography
Primary Sources
Table of Statutes (South Africa)
- Constitution of the Republic of South Africa, 1996
Table of Cases (South Africa)
- Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC)
- Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)
- Khosa and Others v Minister of Social Development and Others
- Larbi-Odam and Others v MEC for Education (North West) and Another 1998 (1) SA 745 (CC)
- Premier, Limpopo Province v Speaker of the Limpopo Provincial Legislature 2011 (6) SA 396 (CC)
- S v Makwanyane and Another 1995 (3) SA 391 (CC)
- S v Mhlungu 1995 (3) SA 867 (CC)
- Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC)
Table of Cases (Foreign Jurisdictions)
- Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
International Treaties and Conventions
- Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (10 September 1969) 1401 UNTS 211
- UN General Assembly, Convention Relating to the Status of Refugees (28 July 1951) United Nations Treaty Series, vol 189, p 137
Secondary Sources
Journal Articles
- Klare K, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146
- Moseneke D, ‘Transformative Constitutionalism: Its Implications for the Law of Contract and Property’ (2009) 20 Stellenbosch Law Review 3
Institutional Papers & Web Reports
- Joint Constitutional Review Committee, 2025 public submissions: Committee Secretariat briefing (Parliamentary Monitoring Group, 20 March 2026) https://pmg.org.za/committee-meeting/42665/ accessed 19 July 2026
- South Africans for Constitutional Reform, Constitutional Reform Proposals to Parliament’s Constitutional Review Committee (SACR, May 2026)
[1] Constitution of the Republic of South Africa, 1996, pmbl.
[2] Joint Constitutional Review Committee, 2025 public submissions: Committee Secretariat briefing (Parliamentary Monitoring Group, 20 March 2026) https://pmg.org.za/committee-meeting/42665/ accessed 19 July 2026.
[3] South Africans for Constitutional Reform, Constitutional Reform Proposals to Parliament’s Constitutional Review Committee (SACR, May 2026).
[4] Constitution of the Republic of South Africa, 1996, ss 26, 27.
[5] UN General Assembly, Convention Relating to the Status of Refugees (28 July 1951) United Nations Treaty Series, vol 189, p 137.
[6] Constitution of the Republic of South Africa, 1996, s 74(1).
[7] Constitution of the Republic of South Africa, 1996, pmbl.
[8] S v Mhlungu 1995 (3) SA 867 (CC) para 8.
[9] Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 150-153; see also Dikgang Moseneke, ‘Transformative Constitutionalism: Its Implications for the Law of Contract and Property’ (2009) 20 Stellenbosch Law Review 3.
[10] Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) para 23.
[11] Khosa and Others v Minister of Social Development and Others; paras 40-44.
[12] Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) paras 65-67.
[13] Constitution of the Republic of South Africa, 1996.
[14] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
[15] Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) para 62.
[16] Premier, Limpopo Province v Speaker of the Limpopo Provincial Legislature 2011 (6) SA 396 (CC) paras 36- 38.
[17] Constitution of the Republic of South Africa, 1996, ss 9(1), 10, 11, 26(1), 27(1).
[18] ibid s 9(3)-(4).
[19] Larbi-Odam and Others v MEC for Education (North West) and Another 1998 (1) SA 745 (CC) paras 19-23.
[20] Constitution of the Republic of South Africa, 1996, s 36(1)(a)-(e).
[21] ibid s 39(1)(b).
[22] ibid s 233.
[23] UN General Assembly, Convention Relating to the Status of Refugees (28 July 1951) United Nations Treaty Series, vol 189, p 137; Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (10 September 1969) 1401 UNTS 211.
[24] S v Makwanyane and Another 1995 (3) SA 391 (CC) para 104.
