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CSL2601 EXAM PREPARATION NOTES

QUESTIONS AND ANSWERS (2021)

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CLS2601 - CONSTITUTIONAL LAW

Study Unit 1

SOURCES OF CONSTITUTIONAL LAW, CLASSIFICATION OF CONSTITUTIONS

AND THE CONCEPTS “STATE” AND “GOVERNMENT”

Authoritative sources of South Africa’s constitutional law C.L.C.C.C.I

- CONSTITUTION
- LEGISLATION
- COMMON LAW
- CUSTOMARY LAW
- CASE LAW
- INTERNATIONAL LAW
- Constitution - refers to both written and unwritten rules governing the exercise and distribution of
state authority on one hand, and on the other, governing relationship between organs of state
inter se and also between organs of state and legal subjects.

- Legislation - is written law enacted by an elected body authorized to do so by the Constitution or

other legislation.

- Common law - the unwritten law of SA, which in SA is Roman-Dutch Law

- Customary law - that system of law generally derived from custom, African indigenous law
- Case law - practical application of constitutional principles by our courts, our courts have full
testing power making case law an authoritative source.

- International law - The Constitution provides that the courts must consider international law
when determining constitutional issues.
Persuasive sources of South Africa’s constitutional law F.A.R.P

- FOREIGN LAW
- ACADEMIC WRITINGS
- REPORTS BY INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
- POLICY DOCUMENTS
Discuss the history of the adoption of the Constitution of the Republic of South

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- The Constitution of the Republic of South Africa 1996 was the product of a long process of
popular struggle, multiparty political negotiations and democratic deliberation in which
politicians, lawyers, representatives of civil society and ordinary people all played a major role.

- Prior to 1994, there was Parliamentary Sovereignty.

- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson Mandela,
unbanning of liberation movement. Eventually multi-party negotiations.

- The two stage process: First, the interim Constitution was adopted at the multiparty
negotiations. Second, democratic elections for SA’s first fully representative Parliament which
double as the Constitutional Assembly.

- The Constitutional Principles, the First Certification Judgment and penultimately the final
Constitution, The Constitution of the Republic of South Africa, 1996.

Classification of constitutions

- Flexible and inflexible, supreme and not supreme, written and unwritten, autochthonous and
allochthonous constitutions.
- Flexible constitutions and inflexible constitutions
- Flexible constitutions require no special procedures or majorities for amendment and can be
amended in the same manner as any other legislation. Eg. the interim Constitution 1993 -
Inflexible constitutions require special amendment procedures and amendment majorities
(contained in section 74 of the Constitution) before they can be amended. Eg.The 1996
Constitution, and constitutions of Germany, USA

- A constitution is supposed to be the embodiment of the values and principles to which a nation
has committed itself, and contains rights and procedures which must protect individuals and
minorities against unfair treatment by the government. If it can be amended too easily, the
majority party in parliament will be tempted to abolish (or at least water down) some of these
protections if it is politically convenient to do so, as can be evidenced from South Africa’s
predemocratic constitutions.

Written constitutions and unwritten constitutions

- Very few countries do not have written constitutions. For example, Great Britain, which is often
used as an example of a country without a written constitution, has a number of important
statutory constitutional sources. On the other hand, even in countries where there is a single
document called “the Constitution”, there are always other constitutional enactments which
supplement it. No single document can ever contain all the rules governing constitutional issues.

Autochthonous (homegrown) constitutions and allochthonous (foreign) constitutions

- It is very difficult to find a constitution which can be said to be totally indigenous. Most of the
“modern” constitutions in the world today are based on the government systems of the former
colonial powers.

- Reactive constitutions originate as a result of specific problems in the past. Eg, Germany and
RSA. Regarded as indigenous. - Constitutions intended to maintain continuity of norms in the

legal tradition of that society. Eg. Netherlands. Regarded as indigenous. - Superimposed

constitutions are largely unrelated to the history of the country concerned. Eg.
Imposed on the colonies of Britain, by Britain.

Explain what is meant by “government”, “state” and “sovereignty”

- Government: The government represents the state at a particular time and is the temporary
bearer of state authority. In other words, “government” relates primarily to the executive function
and having a particular bearing on the formation and implementation of policy.
- State: The state is the permanent legal entity (consisting of a territory, a community, a legal
order, an organised government and a measure of political identity)

- PITCLOG Political Identity, Territory, Community, Legal Order, Organised Government

- Sovereignty: “sovereign state” This means that the state is not subject to the authority of any
other state — it has the sole right to own and control its own territory.

- “Parliamentary sovereignty” This simply meant that the highest legislative authority was vested
in Parliament, this is no longer the case.

Study unit 2

Basic concepts of constitutional law

Define and discuss all concepts in chapter 2 of the prescribed textbook

- Constitutionalism: refers to government in accordance with the constitution. This implies that
the government derives its powers from, and is bound by, the constitution. The government’s
powers are thus limited by the constitution.

• The Rechsstaat principle: a defining feature of the German constitutional model. The
concept establishes the constitution as the higher law with which all other laws and state
conduct must comply, however, it demands more than mere formal constitutional compliance
or procedural safeguards to prohibit arbitrary exercise of power. It demands that the law and
state actors must ‘strive to protect freedom, justice and legal certainty’.

• The rule of law: is a founding value of the SA Constitution and is based on the notion that the
law is supreme. Hence, public power can only be exercised in terms of the authority
conferred by law and in a non-arbitrary manner. Inherent in this concept is the principle that
everyone is equal before the law, the law must be applied equally to all persons irrespective
of their status and all must be subject to the jurisdiction of the ordinary courts

- Separation of powers: this principle deals with the division of governmental powers across the
three branches, namely the legislative branch (parliament), the executive (president and
cabinet), and the judicial branch (courts). These branches ordinarily have separate functions
and are staffed by different personnel. This allows the various branches to check the exercise
of power of the other branches and thus ensures accountability.
 • Co-operative government refers to the system of government that defines the framework
within which the relations between the three spheres of government must be conducted.
Namely the national, provincial, and local spheres of government. In terms of this principle,
the relationship is one of close cooperation within the larger framework that recognises the
distinctiveness, interrelatedness and interdependence of the entire state component.

• Counter-majoritarian dilemma This raises the question whether judicial review is

undemocratic as it may be objected that it is undemocratic that the judiciary (which is not an
elected body) has the power to declare legislation enacted by Parliament (which is an elected
body) invalid.

•However, on the other hand it is suggested that constitutionalism and democracy may
complement each other, and that the existence of a supreme, justiciable Constitution is not
necessarily incompatible with democracy. The following arguments can be made to defend
judicial review against the charge that it is undemocratic:

•(1)That South Africa’s Constitution was itself made by the representatives of the people,
assembled in the Constitutional Assembly. In fact, the Constitution had to be adopted by a
twothirds majority of the members of the Constitutional Assembly, and was the product of a
lengthy process of negotiations and democratic deliberations.

•(2) Judicial review may contribute to a democracy where citizens feel free to state their views
and challenge widely accepted beliefs: by protecting people’s political rights, or freedom of
expression, judges may help to ensure a free and uninhibited public debate.

•3) Judges may inquire into the constitutionality of legislation, but this does not mean that they
can simply substitute their own views for those of the legislature. When a judge strikes down a
law as unconstitutional, he or she does not make a new law or tell the legislature what a new
law should look like. The discretion to amend a law that has been struck down belongs to the
legislature – the only condition is that the amended law must be constitutional.

- Democracy is one of the core values on which the new constitutional order is based. In a
democracy, the right to govern does not vest in a single person (president, PM or monarch) or
class of persons (e.g. an aristocracy), but in the people as a whole. Democracy presupposes
free political discussion, the toleration of differences between people, and the right of all citizens
to participate in political decision making.

• Direct democracy means that all major political decisions are taken by the people
themselves. This form of democracy may work in a very small political community where
people can get together on a regular basis (eg in the town hall) to discuss and decide matters
 • of common interest. However, in a modern state, direct democracy is hardly an option.
Modern states are too populous for all citizens to meet regularly and discuss the affairs of a
nation.

• Representative democracy is characterised by the fact that the citizens of a state elect the
representatives of their choice, and these representatives then express the will of the people.
A representative democracy is created via the process of elections. These elections should
be held at regular intervals, and reasonably frequently. All citizens of majority and those not
disqualified to vote should do so in the elections, to afford direct representation.

• Constitutional democracy means that the people’s representatives in Parliament, in the

provincial legislatures and in Municipal Councils are not free to make whatever laws they
wish, but are bound to observe the norms and values embodied in the Constitution. Laws that
are inconsistent with the Constitution will be declared invalid.

- Presidential system of government

• The head of government is also the head of state. Example, United States of America (USA).

• The head of government is not a member of the legislature and is not responsible to it. For
instance, the American president is not a member of congress, and neither are the members of
his or her cabinet.

• The head of government (president) is often elected directly by the people. In the USA, the
president is popularly elected and his or her election is independent of the election of the
legislature.

- Parliamentary system of government

• The head of state and the head of government are two different persons. For instance, under
the Westminster system, which is the archetypal model of a parliamentary system, there is a
symbolic head of state (monarch), with the real power of government vesting in the prime
minister.

• The head of government and his or her cabinet are members of the legislature and are
responsible to it. One can therefore conclude that there is often a more complete separation of
powers (in the sense of a separation of personnel) in a presidential system than in a
parliamentary system.

• The head of government is the leader of the party with a clear majority in parliament.

Discuss why the doctrine of the separation of powers is important

- to secure liberty and democracy

- to prevent corruption, tyranny, despotic government or the suppression of all forms of liberty
- to energise government and make it more effective by creating a healthy division of labour
- to encourage functional specialisation of the branches of government
- to enhance a vision of democracy based on founding values such as accountability,
responsiveness, and openness

Evaluate whether South Africa adheres to the principle of separation of powers in its
system of government

- Although he 1996 Constitution does not expressly state in a single provision that this principle is
part of our constitutional state, the Constitutional Court in the first Certification judgment, namely
In re Certification of the Constitution of the Republic of South Africa, 1996, was satisfied that this
doctrine was firmly established in the South African Constitution. South Africa has adopted a
hybrid between a parliamentary and presidential system of separation of powers. Our
Constitution has opted for a model which encourages a relationship between the legislative and
the executive branches of government.

Compare the application of the separation-of-powers doctrine in indigenous

communities vis-à-vis that in modern democracies

- The chief was the most important and powerful member of his nation, occupying such position
by ancestry alone. The chief, ward headman and family heads exercised legislative, executive
and judicial powers simultaneously, that is, they could be judge, jury and executioner in one
sitting. This concentration of power was only restricted normatively by a duty to consult
councillors, who checked self-interest, and who acted for the benefit of the people. The exercise
of powers by the rulers was not subject to the scrutiny of an independent judiciary, but was
controlled by rituals, by the military power and by the patron-client relationship created by the
loan of cattle.

- This form of government differs markedly from a modern democracy, since the all-inclusive
powers of government are not differentiated in the Western manner into judicial, administrative
and legislative categories. Although this system of government works within indigenous
communities, it is unlikely to be replicated within a modern state where political, economic and
social factors demand a more institutionalised form of government with the minimum or no
overlap between the legislative, executive and judicial branches of government.
Identify and explain the most important check and balance that is in place

- Judicial review represents the most important check and balance on the exercise of power.
- Judicial review serves to control the abuse of power by either the legislature or the executive by
declaring legislation and/or administrative action invalid if necessary.

Discuss whether or not the principle of judicial review is undemocratic

- The question arises objected whether it is undemocratic that the judiciary (which is not an
elected body) has the power to declare legislation enacted by Parliament (which is an elected
body) invalid. This problem is commonly referred to as the ‘counter-majoritarian dilemma’.

- The it is suggested that constitutionalism and democracy may complement each other, and that
the existence of a supreme, justiciable Constitution is not necessarily incompatible with
democracy. The following arguments can be made to defend judicial review against the charge
that it is undemocratic:

-(1)That South Africa’s Constitution was itself made by the representatives of the people,
assembled in the Constitutional Assembly. In fact, the Constitution had to be adopted by a
twothirds majority of the members of the Constitutional Assembly, and was the product of a
lengthy process of negotiations and democratic deliberations.

-(2) Judicial review may contribute to a democracy where citizens feel free to state their views
and challenge widely accepted beliefs: by protecting people’s political rights, or freedom of
expression, judges may help to ensure a free and uninhibited public debate.

-3) Judges may inquire into the constitutionality of legislation, but this does not mean that they
can simply substitute their own views for those of the legislature. When a judge strikes down a
law as unconstitutional, the discretion to amend a law that has been struck down belongs to the
legislature – the only condition is that the amended law must be constitutional.

Distinguish between parliamentary and presidential systems of government

- Both the 1993 Constitution and the final Constitution are examples of constitutions with both
presidential and parliamentary features. Presidential features are that the president is both head
 of state and head of government. Parliamentary features are that the president is elected by
parliament, and not directly by the voters, and that he or she must also resign if parliament
adopts a motion of no confidence in him or her. Another feature of a parliamentary system of
government is that members of the supreme executive (the cabinet) must be members of
parliament.

- Presidential system of government

• The head of government is also the head of state. This is, for instance, the case in the United
States of America (USA).

• The head of government is not a member of the legislature and is not responsible to it. For
instance, the American president is not a member of congress, and neither are the members of
his or her cabinet.

• The head of government (president) is often elected directly by the people. In the USA, for
instance, the president is popularly elected and his or her election is independent of the
election of the legislature.

- Parliamentary system of government

• The head of state and the head of government are two different persons. For instance, under
the Westminster system, which is the archetypal model of a parliamentary system, there is a
symbolic head of state (monarch), with the real power of government vesting in the prime
minister.

• The head of government and his or her cabinet are members of the legislature and are
responsible to it. One can therefore conclude that there is often a more complete separation of
powers (in the sense of a separation of personnel) in a presidential system than in a
parliamentary system.

• The head of government is the leader of the party with a clear majority in parliament.

Study Unit 3

Separation of powers and the national legislature (parliament)

Describe the composition of parliament and the two houses of parliament

- The South African national legislature (parliament) is a bicameral legislature, which means that it
is divided into two houses, namely the National Assembly (NA) and the National Council of
Provinces (NCOP) [Section 42(1) of the Constitution]
Discuss the functions of the National Assembly and the National Council of
Provinces

- The national legislature (parliament), aside from its legislative functions such as considering,
passing, amending or rejecting legislation, also has the power to check the exercise of power by
the national executive and other organs of state to ensure that the national executive and
various other organs of state are held accountable.

- The National Assembly is elected to represent the people and to ensure government by the
people under the Constitution. It does this by choosing the President, by providing a national
forum for public consideration of issues, by passing legislation and by scrutinising and
overseeing executive action. [Section 42(3) of the Constitution]

- The National Council of Provinces represents the provinces to ensure that provincial interests
are taken into account in the national sphere of government. It does this mainly by participating
in the national legislative process and by providing a national forum for public consideration of
issues affecting the provinces. [Section 42(4) of the Constitution]

Critically evaluate, with reference to case law, the right to vote and in which
circumstances citizens may be deprived of this right

- In August v Electoral Commission, the constitutionality of actions by the Electoral Commission,

which had denied prisoners the right to vote, came under judicial scrutiny. The Court
unanimously found that it was unconstitutional for the Electoral Commission to deny prisoners
the right to vote.

- As a result of the judgment in August, shortly prior to the 2004 elections Parliament amended
the Electoral Act, which prevent those imprisoned without the option of a fine from voting whilst
in prison.

- The constitutionality of the amendment was questioned in Minister of Home Affairs v National
Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others. The
main issue was whether the amendments constituted a justifiable limitation of the right to vote in
terms of section 36 of the Constitution. Government argued that its rationale for the limitation
was to preserve the integrity of the voting process. To counter the risks placed on the process,
special arrangements were required and the provision of which placed a strain on the logistical
and financial resources available to the Electoral Commission. However, the Constitutional
Court disposed of the logistics and costs leg of this argument on the basis that the state had
failed to discharge its evidentiary burden in this regard, and therefore found it not necessary to
take the issue further as the factual basis for the justification had not been established.

- While there may well be a situation in which a person could be deprived of his or her right to
vote, such a limitation would have to be justified by the state, and the state would have to show
that the limitation was narrowly tailored to achieve an important purpose.
- To date, all persons who have reached majority, have the right to vote in SA.

Describe and discuss parliamentary privileges

- Parliamentary privileges are the powers and privileges enjoyed by members of Parliament that
enable them to perform their functions without hindrance, some important privileges are:

- Members of the houses and cabinet enjoy certain inalienable privileges when appearing before
the houses (parliamentary privilege). This is based on the notion that members of parliament
(MPs) must be able to perform their duties in an uninhibited environment. They are guaranteed
freedom of speech and are free from civil and criminal proceedings against anything they
produce in the houses [Section 57(1) of the Constitution]. This privilege may be subject to
judicial review if exercised in breach of a constitutional provision, as decided in the
Constitutional courts decision in De Lille v Speaker of the National Assembly.

- Parliament and its committees are competent to summon persons to give evidence and submit
documents.

- Parliament is entitled to enforce its own internal disciplinary measures for contempt of
Parliament and other infringements of the Act. Eg. Disorderliness, failure to submit documents.

Discuss whether, and in what circumstances, a court may intervene in the legislative
process

- The judgment in Speaker of the National Assembly v De Lille shows the Court’s recognition that
the separation-of-powers principle cannot be used by the other organs of state as a shield
against judicial intervention or what is termed the ‘‘principle of non-intrusion’’. The role of the
Courts has changed under new dispensation. This means that the principle of non-intrusion,
which is a fundamental aspect of the separation-of-powers principle, must give way to the need
to provide protection for individual rights which lie at the heart of our democratic order.

Study Unit 4

Separation of powers and the national legislature (parliament): functions of

parliament

List and explain the functions of parliament

- Representation of the electorate: NA must act on behalf the electorate, the people, when
carrying out its functions of parliament.
- Passing legislation: Parliament’s most important function is to debate, amend and approve the
Bills submitted to it by executive committees or individuals.

- The election of the President.

- Provide a forum of debate on important issues: in which bills, government policy, performance
of state administration, and more, are debated on an ongoing basis in true democratic fashion.
Parliamentary debate is not confined to MP’s, the NA must facilitate public involvement in
legislative and other processes.

- Scrutinising and overseeing executive action : The NA exercises control over state spending
(through its scrutiny of the budget), inquires into state administration, and analyses and
criticises government policy through questioning and debate.

- [section 42(3) and section 55 of the Constitution]

Explain the role of parliament in providing a forum for the public consideration of
issues

- Parliament provides a forum in which bills, government policy, performance of state

administration, and more, are debated on an ongoing basis in true democratic fashion. -
Parliamentary debate is not confined to MP’s, the NA must facilitate public involvement in
legislative and other processes. The business of the NA must be conducted in an open
manner, held in public, and should not exclude the public (including the media) unless it is
reasonable and justifiable to do so in a democratic society.

Explain the role of the National Assembly and the National Council of Provinces in
holding the executive to account to parliament, and especially the role of the
National Assembly in ensuring democratic control over the executive by passing a
motion of no confidence in the president

- In terms of section 55(2) of the Constitution the NA has the power to scrutinise and oversee
executive action. The NA exercises control over state spending (through its scrutiny of the
budget), inquires into state administration, and analyses and criticises government policy
through questioning and debate.

- The motion of no confidence can be found in section 102 of the Constitution, it states that if the
NA, by a vote supported by a majority of its members, passes a motion of no confidence in the
President, the President and the other members of the Cabinet and any Deputy Ministers must
resign. If a motion of no confidence in the Cabinet excluding the President is adopted, the
President must reconstitute the Cabinet.
Explain the role of parliament in maintaining an oversight role over the national
executive and other organs of state

- The NA exercises control over state spending (through its scrutiny of the budget), inquires into
state administration, and analyses and criticises government policy through questioning and
debate.

Generally discuss parliament’s function of passing legislation, including:

- parliament’s legislative competence - the process prescribed for the adoption of
Bills amending the Constitution - the process for the adoption of ordinary Bills
affecting the provinces - the classification or tagging of Bills

- parliament’s legislative competence

- The Constitution gives parliament 4 kinds of law-making powers only it can wield:
• Parliament enjoys exclusive powers to amend and repeal its own laws.

• Parliament enjoys exclusive powers to make laws with regards to those areas which have
been assigned to it by various provisions of the Constitution.

• Parliament has the exclusive competence to amend the Constitution in terms of section 74 of
the Constitution.

• Parliament has residual legislative capacity to make laws relating to those areas that are not
enumerated in the Constitution or mentioned in Schedules 4 and 5 of the Constitution.

- When Parliament makes laws which fall within its exclusive legislative function as set out above,
it must use the procedure prescribed in section 75 of the Constitution.

- the process prescribed for the adoption of Bills amending the Constitution
- Bills amending the Constitution require special procedures and special majorities to pass the Bill
to protect the Constitution from being amended too easily. Once both Houses of Parliament
have passed the same version of a Bill, it is sent to the President for signature. The President
can refer a Bill back to Parliament if he or she has reservations about the constitutionality of
aspects of the Bill. If the reservations are not dealt with, the President can also refer the Bill to
the Constitutional Court to determine whether the reservations are valid or not.

• Section 1 of the Constitution can only be changed with a 75% support of the members of the
NA and 6 of the 9 provincial delegations to the NCOP.

• The Bill of Rights can only be changed with two-thirds support by the members of the NA and
6 of the 9 provincial delegates of the NCOP.
 • Any other provision of the Constitution may be amended by a Bill passed by the NA with a
twothirds supporting vote by its members.

- A Bill amending the Constitution can be tagged as a section 74 Bill because it is amending the
Constitution.

- the process for the adoption of ordinary Bills affecting the provinces
- Ordinary Bills affecting Provinces can be tagged as section 76 Bills, if it falls within a functional
area listed in Schedule 4 of the Constitution or provides for legislation destined in particular
sections of the Constitution.

• Section 76(1) deals with the adoption of Bills that have been introduced in, and passed by,
the NA. Such Bills must then be referred to the NCOP.

• Section 76(2) deals with Bills introduced in, and passed by, the NCOP. Such Bills must then
be referred to the NA.

• If a Bill passed by one House is also passed by the other, the Bill obviously becomes an Act
and is presented to the President for assent.

• If a Bill is passed by one House with amendments, it must be sent back to the other House
with said amendments for consideration. If the amendments are accepted it is presented to
the President for assent.

• If either House rejects a Bill, or an amended Bill sent back to it by the other House, the
original Bill and the amended Bill (if relevant) are referred to a Mediation Committee.

- the classification or tagging of Bills

- A Bill amending the Constitution can be tagged as a section 74 Bill.
- Bills can be tagged as section 75 Bills or ordinary Bills that do not affect the Provinces.
- Section 75 Bills can ONLY be introduced in the NA. A section 75 Bill does not affect the
Provinces and therefore can be overridden by the NA, if the NCOP rejects the Bill, or the NA
rejects the NCOP amendments. Once passed by the NA, the NCOP must vote on the Bill but
not by delegation. In terms of section 75(2) of the Constitution, each delegate per province has
one vote and the majority decides (wins) provided a quorum of one-third is present.

- Bills can be tagged as section 76 Bills or ordinary Bills affecting the Provinces.
- A section 76 Bill can be introduced in either the NA or NCOP.Bills that fall within a functional
area listed in Schedule 4 of the Constitution or provides for legislation destined in particular
sections of the Constitution. It will also be tagged as a section 76 Bill if it intervenes in Schedule
5 matters and other financial matters affecting the Provinces.
- Bills can be tagged as section 77 Bills or money Bills.
- These Bills deal with the imposition of taxes, levies, duties and surcharges to raise money for
the state, and with the allocation of the money raised in this way for a particular purpose, such
as spending it on education, policing or health care.

Explain when the president may  refer a Bill back to the National Assembly (NA)
for reconsideration  refer a Bill to the Constitutional Court for a decision on its
constitutionality

- Section 79 deals with assent to Bills. Once both Houses of Parliament have passed the same
version of a Bill, it is sent to the President for signature. The president may refer a Bill back to
the NA for reconsideration if he or she has reservations about the constitutionality of the Bill.
The president can also refer the Bill back if he or she believes that it does not meet the
substantive requirements of the Constitution. However, the President does not have the power
to refuse to sign a Bill. If the reconsidered Bill fully accommodates the president’s reservations,
then he or she must sign it. If not, the President must either assent to and sign the Bill, or refer
it to the Constitutional Court for a decision on its constitutionality. If the Constitutional Court
decides that the Bill is constitutional, the president must assent to and sign it. In 1999, the
president referred the Liquor Bill to the Constitutional Court for a decision on its constitutionality.
In Ex Parte the President of the Republic of South Africa: In re Constitutionality of the Liquor
Bill, the Constitutional Court spelled out: (1) the circumstances in which the president is allowed
to refer a Bill to the Constitutional Court, and (2) the scope of the Court’s power to consider the
constitutionality of a Bill.

Critically discuss whether parliament is permitted to delegate its legislative powers to

another body or functionary in government

-The delegation of legislative authority to other bodies or functionaries is a regular feature of

modern states. Parliaments often leave it to provincial legislatures or members of the national
executive to ‘‘fill in the gaps’’ in parliamentary legislation by means of proclamations or
regulations. The question arose however whether there are limits to Parliament’s authority to
delegate its legislative power.
This question was answered in the affirmative by the Constitutional Court in Executive Council of
the Western Cape Legislature v President of the Republic of South Africa. The Court stated that
in a modern state, Parliament cannot be expected to deal with all such matters itself and it is
therefore necessary for effective law making to read this power into the Constitution. However the
Court held that Parliament cannot delegate its original law-making power to the executive, it can
only delegate the making of subordinate legislation such as presidential proclamations and
ministerial regulations.
Study Unit 5

Separation of powers and the national executive authority

State who is responsible for the exercise of executive authority in the national
sphere of government

- The President is vested with powers that are conferred on him or her by the Constitution in his or
her capacity as the head of the national executive. When the President exercises head of the
executive powers, he or she acts in consultation with his or her Cabinet.

Discuss the powers and functions of the president

- The powers and functions of the president are laid out in section 84 of the Constitution, and
could be broadly categorised in to the following powers:

• powers entrusted by the Constitution

• powers entrusted by other legislation

• implied powers — powers necessary for the exercise of powers expressly conferred by the
Constitution or other legislation

- The powers vested in the president enable him or her to act in order to fulfil his or her
constitutional responsibilities, which are intertwined with the duties to refrain from acting in a
way that may undermine the state itself and the rule of law. The exercise of these constitutional
powers is, moreover, subject to constitutional review. This follows from the fact that the
Constitution is supreme (section 2), and that all branches of government, including the
executive, are bound by the Constitution [section 8(1)].

- Sections 83(a) and 84(1) distinguish between powers exercised by the president as head of
state and those exercised by the president as head of the national executive, while section
85(2) mentions some of the president’s functions in exercising executive authority. The
President is required to exercise certain powers ‘‘together with’’ the other members of the
Cabinet in terms of section 85(2).

Explain how the president must exercise his or her powers

- There are formal limits and substantive limits explicitly placed on the exercise of powers by the
President (and the executive).
- Several constitutional provisions place formal limits on the manner in which he or she must
exercise some of the Head of State and head of executive powers. - The Constitution also
places more substantive limits on the exercise of power by the President.
The courts can review the exercise of power and set aside any decision by the President on

certain substantive grounds, this conclusion flows from the fact that the Constitution is supreme
and that the rule of law is a founding value of the Constitution.

- One of the most important ways in which the exercise of powers is controlled is through the
requirement that when exercising any duly appointed power, the President has to act rationally
and in good faith. This is because the President (and the executive) must act in accordance
with the Bill of Rights and according to the principle of legality as is implicit in the Constitution.

Discuss the question whether the president can be ordered to give evidence in a
civil matter in relation to the performance of his or her official duties
In President of the RSA v South African Rugby Football Union, the Constitutional Court had to
consider the question whether the President can be ordered to give evidence in a civil matter in
relation to the performance of his official duties. Moseneke (at 352) indicates the importance of
President Mandela’s appearance in Court, stating that it was:
“a symbolic and important act because it underscored the rule of law and the principle that we are all
equal before the law and it is the Constitution that requires us to obey, respect and support the Courts
not because the judges are important or entitled to special deference but because the institution they
serve in has been chosen by us collectively in order to protect the very vital interests of all and in
particular of those who are likely to fall foul of wielders of public or private power [see Moseneke at
341–353].”

The President, as is the case with ordinary citizens, has to give respect to the judiciary in order to
promote the constitutional values and principles which accord equal responsibility for all actions
taken, which may be interpreted as including actions undermining the rule of law.

FYI…

In this case, President of the RSA v South African Rugby Football Union, the constitutional validity
of the appointment of a commission of inquiry into the administration of rugby was in issue. It is a
well-established legal principle that a functionary entrusted with a particular power must exercise
that power personally, unless there has been a valid assignment of the power in question in terms
of the Constitution.

It was found in the Court a quo that the President had abdicated his responsibility to appoint a
commission of inquiry in terms of section 84(2)(f) of the Constitution, and that the decision to
appoint such a commission was taken by the Minister of Sport. The President merely
rubberstamped the Minister’s decision. The Constitutional Court agreed that the President had to
exercise the power personally, since both the Constitution and legislation confer the power to
appoint commissions on the President alone. The appointment of the commission was therefore
found to be invalid.

Explain what is meant by individual and collective ministerial responsibility

[Section 92 (2) of the Constitution]

The Cabinet is collectively accountable to Parliament, as they have a duty to act together.
Cabinet members may disagree on an issue during debate, but once the decision has been taken,
they have to take collective accountability for the decisions and actions of the executive.

Individual members of the executive (members of the Cabinet at national level) are responsible for
their own portfolios and are accountable for what occurs in their departments. Individual
accountability ensures Parliament can identify the Cabinet member responsible for a particular
issue and can take action to hold that member accountable.

[Section 92 (3) of the Constitution]

The notion of individual responsibility entails three duties on the part of the Minister concerned: -
To explain to Parliament what happens in his or her department - Cabinet members are under
an obligation to provide Parliament with full and regular reports concerning matters under their
control.

- To acknowledge that something has gone wrong in the department and to see to it that the
mistake is rectified.

Discuss parliamentary, judicial and other forms of control over the executive
There are several forms of control over the executive, the main forms are Parliamentary control,
judicial control, administrative law, and control by other institutions such as the Public Protector,
Auditor General and other Chapter 9 institutions.

Parliamentary control:

Parliament requires members of the Cabinet to provide full and regular reports concerning matters
under their control. During question time in the Houses of Parliament, members may put
questions to ministers on any aspect of the exercise of their powers and functions. Interpellations
(interruptions in Parliament) are used to open short debates with ministers on particular aspects of
their responsibilities. Committees can also be formed to investigate and report on the activities of
the executive. Section 89 of the Constitution provides for the removal of the president with a
twothirds majority of the NA, on the grounds of serious misconduct, violation of Constitutional law,
or the inability to perform the functions of the office.

Judicial control:

The executive is bound by the Constitution as the supreme law, and any executive conduct which
is inconsistent with the Constitution is invalid. The Courts therefore have an important role to play
in ensuring that the executive respects and observes the Constitution, and may test conduct
against various criteria eg. the Bill of Rights, and section 33 ‘just administrative action’.
Administrative law:

The rules of administrative law constitute one of the most important checks on or controls over the
power of the executive. Administrative law comprises rules and principles governing the
performance of executive and administrative functions. It binds not only the executive authority,
but also the state administration and private institutions wielding authority over their members.
The rules of administrative law relate to the person who or body which may exercise a given
power, to the scope and content of that power, to the procedure to be followed in exercising that
power, to the reasonableness of administrative decisions, et cetera.

Other forms of control:

Chapter 9 institutions such as the Public Protector, Auditor General, South African Human Rights
Commission among others have control over the executive in various ways. Another important
form of control comes from the media, exercising its right to freedom of the press and other media
guaranteed in section 16(1), the media reports on and criticises the performance of public officials.
General public may also control the executive through public debate and criticism, and through a
variety of interest groups and pressure groups such as trade unions, churches, consumer groups
and cultural organisations.

Explain when the president will be bound to comply with section 33 (just
administrative action) of the Constitution
Section 33 of the Constitution guarantees the right to just administrative action. Executive organs
of state and administrative officials are under a constitutional obligation to act in a manner which is
lawful, reasonable and procedurally fair.

In President of the RSA v South African Rugby Football Union (the Sarfu case), which dealt, inter
alia, with the question whether all acts of the executive must comply with section 33 of the
Constitution. It was argued in the Sarfu case that the President, in appointing a commission of
inquiry into the administration of rugby, did not act in a manner that was procedurally fair. This
was because the President did not give Sarfu the opportunity to make representations to him
before deciding to appoint the commission. The judge in the High Court agreed with this
contention.
However, the Constitutional Court found that the appointment of a commission in terms of section
84(2)(f) does not constitute ‘‘administrative action’’ as contemplated by section 33. We must
distinguish from Head of State powers conferred on the president in terms of section 84(2), and
head of executive powers.

In conclusion, when exercising Head of State powers (section 84(2)), the requirements of
administrative law (section 33 just administrative action) are not applicable, therefore the president
will only be bound to comply with section 33 when he or she is not exercising powers under
section 84(2).
Distinguish the traditional system of governance from the broader approach of
executive authority as envisaged in the Constitution

- Executive authority is defined as the power to execute rules of law on matters that do not fall
within the functional areas of other branches of government (legislature and judiciary).

- The two corresponding systems, that is the modern and the traditional system of authority in the
national sphere, have many similarities, and some distinct differences.

- Both have a national House so to speak, the Houses of Parliament, and the National House of
Traditional Leaders. However, they follow a different election process, in the broader approach
of executive authority, members are elected by the people (popular rule), but in the traditional
authority it is by virtue of being born within the royal family.

- The system of cooperative governance applies equally in the traditional authority, and has a
double-edged function to develop the principles of governance within the institution itself, and in
matters involving the broader system of governance.

- The collective system of responsibility apply equally to both the systems, as does the
constitutional values of openness, accountability and the rule of law.

- The Constitution recognises and protects the institution of traditional leadership, which creates a
dual system of governance.

- The Constitution prohibits Parliament from making laws that will interfere with the institution of
traditional leadership, but this does not create ‘divided legitimacy’ as the Constitution endorses
the basis for traditional leadership that was, and continues to be, rooted in moral and social
authority by making organised communities the primary focus of authority.

Discuss the limitation of the powers of the chairperson and the executive of the
National House of Traditional Leaders

- Despite the powers vested in the Chairperson by natural birth, his or her executive powers are
regulated by legislation as mandated by the Constitution. Section 212(2) of the Constitution lays
down that national legislation may provide for the establishment of houses of traditional leaders
and establish a council of traditional leaders. Therefore, the Chairperson of the House is
required to exercise the powers entrusted to him or her in terms of section 9 of the National
House of Traditional Leaders Act.

- However the most important limitation is placed by constitutional supremacy, and any actions of
the executive, including the corresponding traditional authority, that are in violation of the
constitution will be deemed invalid.

Study Unit 6
Separation of powers and judicial authority

Define “judicial authority”

- The judiciary performs an adjudicatory function. Adjudication takes place when a Court or a
tribunal resolves legal disputes or controversies between subjects of the state, or between the
state and its subjects, in accordance with the facts and the law and not according to the
presiding officer’s personal views and opinions. In exercising this function, the Courts are
involved in interpreting and applying legal rules to concrete legal disputes, and thus enforcing
legal rules with a view to imposing a sanction if they find that a rule has been breached.

Sketch the history of the judicial system in South Africa

- 1910 - 1994 South Africa had a constitutional system based on parliamentary sovereignty.
- Judiciary seen as subordinate to the law-making authority of Parliament.
- Undemocratically elected Parliament enacted laws that could not be tested by the Courts. -
Judiciary was viewed with great distrust and suspicion, as it effectively shared the responsibility
for implementing the segregation and apartheid policies that originated with Parliament.

- The Courts predominantly accepted apartheid laws and the legal order as normal, right and the
boni mores of society.

- Despite numerous attempts by the judiciary to oppose the government, such as in the second
Harris case, it became clear that the power of the judiciary to test legislative and executive
conduct was severely reduced by the untrammelled power wielded by Parliament and by the
absence of a Bill of Rights and a Constitution as the supreme law.

- The judiciary could only test whether the provisions or the procedure for the enactment of an Act
of Parliament had been complied with, and not whether the Act was invalid or unconstitutional. -
The judiciary was predominantly staffed by conservative, elite, white males. Suggested that their
ideological inclinations were consistent with the rest of the white state. There were a few black
magistrates in the homelands and townships, but they were not in a position to influence the
legal culture and functioning of the Courts.

- The interim constitution

- Constitutional Assembly
- The 1996 Constitution, heralded a new era of democratic government based on a constitution
that is supreme.
Illustrate why judicial independence is indispensable to a constitutional state

- The independence of the judiciary is a vital ingredient of the constitutional state. The reason is
obvious: if judges can be told what to do by politicians (or by business or other interest groups),
then there is little chance that the Courts can be an effective mechanism for preventing the
abuse of power.

- The independence of the judiciary requires that every judge be free to decide matters placed
before him or her in accordance with the assessment of facts in relation to the relevant law
without any interference whatsoever from other bodies, persons or parties.

- The role of the judiciary is fundamental in the constitutional law context, where it serves to
adjudicate constitutional rights claims by individuals against their government. The judiciary can
only perform these functions if its independence is secured.

Now what is meant by the phrase “counter-majoritarian dilemma” and be able to

explain whether it is actually a dilemma
Counter-majoritarian dilemma raises the question whether judicial review is undemocratic as it
may be objected that it is undemocratic that the judiciary (which is not an elected body) has the
power to declare legislation enacted by Parliament (which is an elected body) invalid.

-However, on the other hand it is suggested that constitutionalism and democracy may
complement each other, and that the existence of a supreme, justiciable Constitution is not
necessarily incompatible with democracy. The following arguments can be made to defend judicial
review against the charge that it is undemocratic:

-That South Africa’s Constitution was itself made by the representatives of the people, assembled
in the Constitutional Assembly. In fact, the Constitution had to be adopted by a two-thirds majority
of the members of the Constitutional Assembly, and was the product of a lengthy process of
negotiations and democratic deliberations.

-Judicial review may contribute to a democracy where citizens feel free to state their views and
challenge widely accepted beliefs: by protecting people’s political rights, or freedom of expression,
judges may help to ensure a free and uninhibited public debate.

-Judges may inquire into the constitutionality of legislation, but this does not mean that they can
simply substitute their own views for those of the legislature. When a judge strikes down a law as
unconstitutional, he or she does not make a new law or tell the legislature what a new law should
look like. The discretion to amend a law that has been struck down belongs to the legislature – the
only condition is that the amended law must be constitutional.
Define, explain, apply, contrast and evaluate the hierarchy of the courts and the
composition, powers, responsibilities and limits of the Constitutional Court, the
Supreme Court of Appeal, the High Courts and the Magistrates’ Courts with regard
to constitutional jurisdiction

In brief, the Supreme Court of Appeal, the High Courts and a Court of a status similar to a High
Court may make an order concerning the constitutionality of an Act of Parliament, a provincial Act
or any conduct of the President. However, such an order of invalidity has no force of law unless it
is confirmed by the Constitutional Court. The magistrate’s courts can decide any matter defined by
an Act of Parliament, except any matter involving an enquiry into its constitutionality.

- Constitutional Court:
This is the highest (apex) court of the Republic. It may decide constitutional matters and any other
matter if it grants leave to appeal on the grounds that the matter concerned raises an arguable
point of law of general public importance which ought to be considered by it. It is also the final
instance of appeal in all constitutional matters, even though other Courts may entertain appeals
regarding constitutional matters. The Court has concurrent jurisdiction with the High Courts and
the Supreme Court of Appeal in respect of direct challenges to the constitutionality of all forms of
legislation, as well as in respect of issues concerning the interpretation and application of
legislation, common law or customary law and is obliged to confirm any orders of invalidity by a
lower court before the decisions become final.

In President of the Republic of South Africa v South African Rugby Football Union, the
Constitutional Court held that constitutional matters could include the following:

• Allegations of bias on the part of judicial officers

• All aspects of the exercise of public power

• The interpretation and application of laws that give effect to a right in the Bill of Rights

• The development, or failure to develop, the common law

• Any matter concerning the nature and ambit of the powers of the High Courts

Section 167(4) sets out the matters over which the Constitutional Court exercises exclusive
competence. This means that only the Constitutional Court is authorised to adjudicate on matters
that fall within this section.

The Constitutional Court is headed by the chief justice who is also the head of the judiciary,
assisted by the deputy chief justice. Together, the chief justice and deputy chief justice are the
most senior judges in the judicial arm of government.

- Supreme Court of Appeal:

As the name suggests, this court only has jurisdiction to hear appeals from High Courts. The
Supreme Court of Appeal has both constitutional and non-constitutional jurisdiction and can
dispose of an appeal on non-constitutional grounds without reaching the constitutional issue.
Section 168 of the Constitution provides that the Supreme Court of Appeal can hear any matter.
This means that:

• The Supreme Court of Appeal is allowed to hear and decide constitutional issues, except those
matters that fall within the exclusive jurisdiction of the Constitutional Court

• The Supreme Court of Appeal has the same breadth of constitutional jurisdiction as the High
Courts

• The Supreme Court of Appeal will be the final Court of appeal in non-constitutional matters

The Fourteenth Constitutional Amendment Bill advanced the idea that the Constitutional Court
should be the highest Court in all matters, with the Supreme Court of Appeal acting as an
intermediate Court of appeal. This is a departure from the current system as discussed above.
Conflicting views exist on this proposal.

- High Courts:
The High Court consists of divisions determined by an Act of parliament, has geographically
limited jurisdiction (according to the nine provinces), and consists of a judge president and one or
more deputy judge presidents. These courts function as superior courts and act both as courts of
first instance and as courts hearing appeals from lower courts. Section 172 sets out the
jurisdiction of the High Courts. The High Courts have wide constitutional powers and may decide
any constitutional matters except those that fall within section 167(4) of the Constitution.

- Magistrates Courts:
Magistrates Courts are now creatures of the Constitution, empowered by section 170 of the
Constitution to decide any matter determined by an Act of parliament, except any matter which
involves an enquiry into or a decision on the constitutionality of any legislation or the conduct of
the president.

Understand and explain the selection and appointment of members of the judiciary
with specific knowledge of the mandate of the Judicial Service Commission
Decisions of judges have far-reaching political consequences, and hence the appointment of the
judiciary cannot be entirely insulated from the political process. The danger of a politicised
judiciary, however, is that it would be reluctant to strike down legislation and the acts of members
of the executive. As a compromise the Constitution created the Judicial Service Commission
(JSC), which is involved in the appointment of superior court judges.

The criteria for the selection of judges for appointment can be gleaned from section 174(1) of the
Constitution which stipulates that a person must be “appropriately qualified” and “a fit and
proper person” to be appointed as a judge. A further criterion in respect of a Constitutional
Court judge is that the appointee must be a South African citizen. Section 174(2) of the
Constitution goes on to state that there is “the need to transform the judiciary better to reflect the
racial and gender composition of South Africa”. The JSC itself has developed a set of additional
criteria that it takes into account when considering appointment to the judiciary.
If the premier of a province is absent when the JSC makes a decision regarding either the
appointment or the disciplining of a judge serving in that province, the decision of the JSC will be
invalid, as it is contrary to the rule of law.

- When vacancies occur in a court, the chief justice, as chairperson of the JSC, calls for
nominations, and publicly interviews shortlisted candidates. Thereafter, non-binding
recommendations are made by the JSC to the president. The president as head of the national
executive has a relatively wide discretion when he or she appoints the chief justice and the
deputy chief justice. The president appoints the person of his or her choice after consulting the
JSC and leaders of parties represented in the National Assembly. This consultation must take
place before deciding on a candidate for appointment, but the decisions remain the president’s
alone. The case of Ex Parte: Freedom Under Law, In re: The Appointment of the Chief Justice
created a lot of controversy, because former Chief Justice Sandile Ngcobo was nominated by
President Zuma long before the JSC could finalise its interviews and provide the president with
recommendations for his consideration. Ex post facto consultation is therefore not acceptable.

- When appointing the president and deputy president of the Supreme Court of Appeal (SCA), the
president, as head of the national executive, appoints the person of his or her choice after
consulting the JSC (but there is no requirement to consult the leaders of the parties represented
in the National Assembly).

- Consultation: Although the Constitution does not define the notion of consultation, it has been
argued that “at least it must entail the good faith exchange of views, which must be taken
seriously”. It does not, however, mean that the president must follow the advice of those
consulted.

- The president, as head of the national executive, appoints the other judges of the Constitutional
Court after consulting the chief justice and the leaders of parties represented in the National
Assembly. While the JSC plays a more important role in these appointments, the president
retains the decisive role. The JSC prepares a list of nominees with three names more than the
number of appointments to be made submits the list to the president. If the president refuses a
nominee, he or she must provide the JSC with reasons for the decision. If this happens, the JSC
is required to supplement the list with further nominees and the president must make the
remaining appointments from the supplemented list.

- With respect to the appointment of all other judges to the SCA, High Courts and other
specialised courts, the president has no discretion and is required to appoint the candidates
selected by the JSC.

Recognise that, while the National Prosecuting Authority is not part of the judiciary, it
plays an important role in ensuring the integrity of the judiciary and supporting the
effective functioning of the judiciary
It is essential to comprehend that the National Prosecuting Authority (NPA) is not part of the
judiciary. Neither is it part of the legislature or the executive. The NPA and the office of the
National Director of Public Prosecutions are sui generis. It is intended to play a pivotal role in the
effective and impartial functioning of the criminal justice system. Section 179 of the Constitution,
read with the National Prosecuting Authority Act 32 of 1998 (and its amendment), establishes the
framework within which the NPA should operate.

All powers to institute, conduct and discontinue criminal proceedings on behalf of the state vest in
the NPA. Therefore, the minister may not interfere with the process, as it is dangerous to allow a
political appointee to overrule a decision to prosecute. However, the NPA is legally and
constitutionally required to report to the minister of justice on its activities and decisions.

The national director of public prosecutions (NDPP) is the head of the prosecuting authority and is
appointed by the president in his or her capacity as head of the national executive. Such
appointment must comply with the objective criteria set out in the NPA Act, that is, the person so
appointed must be “fit and proper” (referring to the incumbent’s moral and ethical fitness to hold
the position). This was the principal issue in the case of Democratic Alliance v President of South
Africa and Others where the Democratic Alliance argued that the appointment of Menzi Simelane
as the NDPP was fatally flawed because Mr Simelane had been appointed notwithstanding the
fact that he could not be described as a conscientious person of integrity and honesty, which is
the minimum character trait of a person holding the office of the NDPP.

Study Unit 7

Cooperative governance / multilevel (sphere) government in South Africa

This unit deals with the horizontal division of power across the spheres of government. It is
important to understand that in a federal or quasi-federal system, the division may be based either
on a divided model of federalism or an integrated model of federalism:

Divided model of federalism

In a divided model of federalism the Constitution strictly divides subject matters in respect of which
policies and laws may be made each spheres of government. Each sphere has its own exclusive
powers, and very few shared powers. Examples: USA, Australia, Canada

Integrated model of federalism

In an integrated model of federalism is where some subject matters are allocated exclusively to
one sphere of government, but most powers are concurrent or shared. Policies and laws are not
strictly divided between the different levels/spheres. Examples: Germany, South Africa

Quasi-federal system
The horizontal and vertical separation of powers in the South African system renders it a
quasifederal government. Although the South African system show several characteristics of a
federal system, it could best be described as a quasi-federal system. In a quasi-federal system,
the national government retains more power and influence over law making and policy formulation
than is usually the case in a fully fledged federal system, and the power of provincial government
is limited.

Define and discuss the term “cooperative government” and explain this in detail

- Definition: Cooperative government refers to the system of government that defines the
framework within which the relations between the three spheres of government must be
conducted. The Constitution makes provision for a system of intergovernmental co-ordination
to manage any potential conflict between the different spheres exercising concurrent
competences. Chapter 3 entrenches the notion of co-operative government which recognises
distinctiveness, interdependence and interrelatedness. It also makes provision for the
regulating principles of cooperative government as entrenched in section 41, which requires,
inter alia, the different spheres to cooperate with one another in mutual trust and good faith.

- In detail: South Africa is neither a union nor a federation. Its structure is influenced by the
German Constitution. It therefore takes the form of an integrated quasi-federation as it provides
for three levels of governance, being national, provincial and municipal. These three levels are
intended to co-operate with each other and not compete with each other. South Africa’s system
of co-operative government is entrenched by the Constitution which holds that the three
spheres of government are described as ‘distinctive, interdependent and interrelated’.
- Based on the mutually beneficial co-operative relationship that is created by the Constitution
there is a certain amount of shared responsibility amongst and between the three levels of
government. For example, the Constitution usually allocates legislative and executive powers
concurrently to the national and provincial government. When it comes to competencies that
are shared by the provincial and national governments, in the context of legislative authority,
both the provinces and national government may make laws in areas such as housing, health,
education (except at tertiary level), industrial promotion, environment, trade, public transport,
urban and rural development and welfare services, although it must be borne in mind that
national legislation overrides provincial legislation in the event of a conflict between the two.
Likewise, the allocation of executive authority also follows a system of co-operative federalism
in that the national government can execute laws falling within the areas of concurrent
competence. In general, provinces and local government are responsible for executing national
and provincial laws.

- To compensate for the fact that the provinces have restricted law-making powers (and that their
laws may be superseded by national laws), the provinces play a role in the adoption of national
legislation through their representatives in the second house of Parliament, the National
Council of Provinces (NCOP).

- A notable case concerning South Africa’s integrated quasi-federation is the case of

Premier of the Province of the Western Cape v the President of the Republic of South Africa.
The significance of this case is that it reinforces the co-operative relationship between the
national and provincial governments. This case also raises the imperative of co-ordination of
legislative and executive activities in this system of government.
Discuss the principles of cooperative government
The principles of co-operative government are contained in section 41 of the Constitution which
provides that all spheres of government must facilitate co-operation and must:
1. preserve the peace, national unity and the indivisibility of the Republic

2. secure well-being of the people of the Republic

3. provide effective, transparent, accountable and coherent government

4. be loyal to the constitution and its people

5. not assume any power except those conferred on them in terms of the Constitution

6. exercise their powers and perform their functions in a manner that does not encroach on the
geographical, functional or institutional integrity of government in another sphere

7. co-operate with one another in mutual trust and good faith.

The categorisation of government into different spheres indicates the hierarchical relationship that
exists between the levels of government. These principles are based on mutual respect for one
another’s constitutional status, powers and functioning and on consultation of one another on
matters of common interest. This relationship requires the spheres of government to observe and
give effect to these principles encapsulated in the Constitution. Devenish holds that the
cooperative principles:

• enable the lower sphere of government to influence the policy that it will have to execute

• imply, at provincial level, cooperation to ensure that legislative processes are harmonized in
order to guarantee the significance of the operation of the NCOP

• provide mechanisms to reduce the political tensions between, the central government and the
provinces on the one hand, and among the provinces themselves on the other.

The basis for the distinction between the different spheres of government is that the national
government functions on a nationwide basis, the provincial governments function within the
demarcated regions, and local governments function within the smaller areas.

The significance of the principles of cooperative governance lies in the fact that all spheres of
government are interrelated and interdependent, in the sense that the functional areas of each
sphere (national, provincial and local) are not distinct from one another.

In conclusion, it can be deduced from the above that cooperative government can be regarded as
one of the cornerstones of the new constitutional dispensation. Moreover, the intersection of
government relations can be regarded as an essential instrument for the delivery of services by
the three spheres of government as is required by section 7, which not only entrenches respect for
rights, but also requires the state to go beyond this and ensure their fulfilment.

Discuss the executive and legislative powers of the national sphere of government
The Constitution provides that the national executive authority is vested in the President in terms
of section 85. The President is the Head of State and of the national executive.
The national sphere has two houses of national legislature, namely the National Assembly (NA),
and the National Council of Provinces (NCOP). The NCOP plays an important role in coordinating
the legislative activities of the three spheres of government. The national legislature has exclusive
legislative authority in all matters that meet the criteria of section 146 of the Constitution, and
concurrent powers shared with the provincial legislature in terms of functional areas listed in
Schedule 4 of the Constitution, except of course if one of the criterion is met in section 146.

Discuss the executive and legislative powers of the provincial sphere of government
The structures of government for the 9 provinces largely mirror that of the national executive. A
Premier elected by the provincial legislature heads the provincial executive and can also be
removed by the provincial legislature. A province has executive authority in terms of those
functional areas listed in Schedule 4 (concurrent powers shared with the national executive) and
Schedule 5 (exclusive powers) of the Constitution. Their interests are represented at national
level by the NCOP. When both the national legislature and provincial legislature pass legislation
on one of those areas listed in Schedule 4, the provincial legislation shall prevail unless it meets
the criterion of section 146 in which case national legislation will prevail. The test to determine
whether a Bill falls within Schedule 5 or Schedule 4, is the pith and substance test.

Discuss the executive and legislative powers of the local sphere of government

- The Constitution determines that a municipality has executive authority in respect of and has the
right to administer the local government matters listed in Part B of Schedule 4 and Part B of
Schedule 5 and any other matter assigned to it by national or provincial legislation. Also,
municipalities may make and administer by-laws for the effective administration for the matters
for which they have the right to administer. Conflicts between national and provincial laws and
municipal laws are resolved in terms of section 156(3) of the Constitution, this section provides
simply that subject to section 151(4), a by-law that conflicts with national or provincial legislation
is invalid. An important consequence of this provision is that a municipality must exercise its
executive and legislative authority within the parameters set by national and provincial
legislation. In the absence of any national or provincial law regulating a local government
matter, municipalities are free to determine the content of its legislative and executive decisions.

Explain which constitutional provisions deal with conflicts between the different
spheres of government

- Conflicts between national and provincial legislation relating to Schedule 4 matters:

- Section 146(2) provides that national legislation that applies uniformly with regard to the country
as a whole prevails if any of the conditions mentioned therein are met.
- Section 146(3) also states that national legislation prevails over provincial legislation if the
national legislation is aimed at preventing unreasonable action that is prejudicial to another
province or the country as a whole or, if it impedes the implementation of national policy

- Conflicts between provincial and national legislation relating to Schedule 5 matters: - In

the normal course of events there will not be legislative conflicts relating to Schedule 5 since
provincial legislatures have exclusive power to pass legislation relating to these matters.

However, section 44(2) provides that Parliament may pass legislation on a matter falling within a
functional area listed in Schedule 5 when it is necessary to:

• maintain national security

• maintain economic unity

• maintain essential national standards

• establish minimum standards required for the rendering of services

• prevent unreasonable action taken by a province which is prejudicial to the interests of

other provinces or to the country as a whole

- Section 147(2) provides that national legislation referred to in section 44(2) prevails over
provincial legislation.

- Conflicts between national and provincial laws and municipal laws:

- Conflicts between national and provincial laws and municipal laws are resolved in terms of
section 156(3) of the Constitution, this section provides simply that subject to section 151(4), a
by-law that conflicts with national or provincial legislation is invalid.

Study Unit 8:

Provincial Government

Discuss whether, and to what extent, the Constitution recognises provincial

autonomy
The final Constitution recognises some degree of provincial autonomy, and displays the following
federal characteristics:

- The Constitution provides for certain matters over which the provinces have exclusive legislative
authority.

- It recognises that provinces have exclusive executive authority to implement provincial

legislation in that province.

- It recognises the authority of provinces to adopt their own constitutions.

- It institutes the NCOP which represents the provinces in the national sphere of government.
- It does provide definite limitations on the autonomy of provinces:
• by setting out conditions in which national legislation will prevail over provincial legislation
when a conflict occurs in a matter where they share concurrent authority.

• by allowing national legislature to intervene in a matter where provincial legislature enjoys

exclusive authority, if it is necessary to realise objectives of national security or economic unity.

• Government in the national sphere may intervene when a province cannot fulfill its duties.

• Provincial legislatures have only limited powers of taxation.

Discuss the legislative authority of the provinces

The legislative authority of each province is vested in its provincial legislature, which is elected in
accordance with the same electoral system that applies to the election of members of the National
Assembly. The size of each of the legislatures is determined in terms of a formula prescribed by
national legislation relating to the population size of that province, bearing in mind that a
province’s permanent delegates to the National Council of Provinces (NCOP) are not members of
the provincial legislature.

The provincial legislature has the power to pass a provincial constitution and to pass legislation for
its province with regard to the following enumerated and clearly defined matters:

• any aspect within a functional area listed in Schedule 4.

• any aspect within a functional area listed in Schedule 5.

• any aspect outside those functional areas and that is “expressly assigned” to the province by
national legislation.

• any aspect for which a provision of the Constitution “envisages” the enactment of provincial
legislation.

Discuss the executive authority of the provinces, and ways in which the provincial
executive can be held accountable

- Executive authority:
- The structures of government for the 9 provinces largely mirror that of the national executive. A
Premier elected by the provincial legislature heads the provincial executive and can also be
removed by the provincial legislature.

- The Premier exercises his/her executive authority together with the other members of the
Executive Council.

- The provincial executive must act in accordance with the Constitution, and the provincial
constitution, if one has been passed for the province.
- A province has executive authority only to the extent that the province has administrative
capacity to assume effective responsibility.

- A province has executive authority in terms of those functional areas listed in Schedule 4
(concurrent powers shared with the national executive) and Schedule 5 (exclusive powers) of
the Constitution.

- The provincial executive and accountability:

- The members of the Executive Council of a province are responsible for the functions of the
executive assigned to them by the Premier.

- Members of the Executive Council of a province are accountable collectively and individually to
the legislature for the exercise of their powers and the performance of their functions.

- Members of the Executive Council of a province must:

• act in accordance with the Constitution, and the provincial constitution if one has been passed
for the province.

• provide the legislature with full and regular reports concerning matters under their control.

Discuss the power of the provinces to adopt provincial constitutions

- Section 142 states that a provincial legislature may adopt a constitution for the province if at
least two-thirds of its members are in favour of it.

- Section 143 makes it clear that a provincial constitution must not be inconsistent with the
Constitution.

- However, a provincial constitution may provide for provincial legislative or executive structures
and procedures that differ from those provided for in the Constitution. It may also provide for the
institution, role, authority and status of traditional leaders.

- Such provisions must, however, comply with the values in section 1 (the values upon which the
Republic is based) and Chapter 3 (cooperative government), and may not confer on the
province greater powers than those conferred by the Constitution.

- Section 144 states that a provincial constitution or constitutional amendment must be submitted
to the Constitutional Court for certification and does not become law until the Constitutional
Court has certified that it has been passed in accordance with section 142, and that the text
complies with section 143.

- Only two provinces in South Africa have adopted their own constitutions: KwaZulu-Natal and the
Western Cape. However, the KwaZulu-Natal constitution never came into force. That
constitution was held by the Constitutional Court to usurp powers not due to the province and
 was therefore not certified. The constitution of the Western Cape was initially not certified, but
after amendments, it was.

Explain when parliament can adopt legislation dealing with a Schedule 5 matter
Section 44(2) provides that Parliament may pass legislation on a matter falling within a functional
area listed in Schedule 5 when it is necessary to:

• maintain national security

• maintain economic unity

• maintain essential national standards

• establish minimum standards required for the rendering of services

• prevent unreasonable action taken by a province which is prejudicial to the interests of

other provinces or to the country as a whole

- Section 147(2) provides that national legislation referred to in section 44(2) prevails over
provincial legislation.

Explain what happens in the case of a conflict between national and provincial
legislation

- Conflicts between national and provincial legislation relating to Schedule 4 matters:

- Section 146(2) provides that national legislation that applies uniformly with regard to the country
as a whole prevails if any of the conditions mentioned therein are met.

- Section 146(3) also states that national legislation prevails over provincial legislation if the
national legislation is aimed at preventing unreasonable action that is prejudicial to another
province or the country as a whole or, if it impedes the implementation of national policy

- Conflicts between provincial and national legislation relating to Schedule 5 matters: - In

the normal course of events there will not be legislative conflicts relating to Schedule 5 since
provincial legislatures have exclusive power to pass legislation relating to these matters.

However, section 44(2) provides that Parliament may pass legislation on a matter falling within a
functional area listed in Schedule 5 when it is necessary to:

• maintain national security

• maintain economic unity

• maintain essential national standards

 • establish minimum standards required for the rendering of services

• prevent unreasonable action taken by a province which is prejudicial to the interests of

other provinces or to the country as a whole

- Section 147(2) provides that national legislation referred to in section 44(2) prevails over
provincial legislation.

Familiarise yourself with the preconditions required for the national parliament to
intervene in the exclusive competences of the provincial legislatures
(Section 100?)

When a province cannot or does not fulfil an executive obligation in terms of the Constitution or
legislation, the national executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including:

- Issuing a directive to the provincial executive, describing the extent of the failure to fulfil its
obligations and stating any steps required to meet its obligations; and

- Assuming responsibility for the relevant obligation in that province to the extent necessary to:
• maintain essential national standards or meet established minimum standards for the
rendering of a service;

• maintain economic unity;

• maintain national security;

• prevent that province from taking unreasonable action that is prejudicial to the interests of
another province or to the country as a whole.

Study Unit 9

Local Government

Discuss the reason behind the creation of local government as an “autonomous”

sphere of government

- Autonomous (definition: freedom to govern itself)

- The recognition of local government as an autonomous sphere of government is necessary to
improve the quality of life experienced by members of the community and to give community
members a sense of involvement in the political processes that govern their daily lives. If they
are to live up to their promises, the national and provincial spheres of government must do all
that they can to develop the capacity and integrity of municipalities.
The use of the word ‘‘sphere’’ in section 151(1) has two important consequences:

• First, the recognition of local government as a sphere of government means that it cannot be
abolished by either the national or provincial governments.

• Secondly, the use of the word ‘‘sphere’’ signifies a shift away from the hierarchical divisions of
government authority towards a vision of government in which each sphere has equivalent
status, is self-reliant and possesses constitutional latitude to define and express its unique
character

Illustrate the effect of Chapter 7 of the 1996 Constitution on the legal status of local
government

- In terms of Chapter 7, the constitutional recognition in terms of local government and the vesting
of a range of original powers in local authorities have transformed the legal status of local
government. For the first time in South African history, provision is made for autonomous local
government with its own constitutionally guaranteed and independent existence, powers and
functions. This means that the functions of government are not only exercised at national or
provincial level, but are also decentralised to local government to take it closer to the people.

- In Fedsure v Greater Johannesburg Metropolitan Council the Constitutional Court stated:

Under the interim Constitution (and the 1996 Constitution) a local government is no longer a public body
exercising delegated powers. Its council is a deliberative legislative assembly with legislative and executive
powers recognised in the Constitution itself [at para 26].

The constitutional status of a local government is thus materially different to what it was when Parliament was
supreme, when not only the powers but the very existence of local government depended entirely on superior
legislatures. The institution of elected local government could then have been terminated at any time and its
functions entrusted to administrators appointed by the central or provincial governments. That is no longer
the position. Local governments have a place in the constitutional order, have to be established by the
competent authority, and are entitled to certain powers, including the power to make bylaws and impose
rates.

- Chapter 7 is an extension of the principle of cooperative government.

- The provisions contained in Chapter 7 are designed to promote intergovernmental relations

between local and provincial government.

- Chapter 7 also functions as the framework for the implementation and application of the new
local government legislation.

Compare the term “sphere” with the term “level” of government and explain the
connotation of each term in constitutional law
The use of the word ‘‘sphere’’ in section 151(1) has two important consequences:

• First, the recognition of local government as a sphere of government means that it cannot be
abolished by either the national or provincial governments.
 • Secondly, the use of the word ‘‘sphere’’ signifies a shift away from the hierarchical divisions of
government authority towards a vision of government in which each sphere has equivalent
status, is self-reliant and possesses constitutional latitude to define and express its unique
character.

Discuss whether local government is nothing more than an administrative

“handmaiden” to national government

- Some provisions in the Constitution confirm that local government is an autonomous sphere of
government which has an important role to play in the democratisation process.

- Other provisions linked to the objects, powers and duties of local government and which tend to
suggest that local government is, in fact, nothing more than an administrative ‘‘handmaiden’’ of
the other spheres of government:

- section 156(3), which states that local government cannot legislate in conflict with national and
provincial legislation

- section 156(4), which states that national and provincial government must assign to local
government (Schedules 4 and 5, part A) those local government matters that would be most
effectively administered locally, and where the local government structure has the capacity to
administer it

- section 156(5), which gives municipalities any power reasonably necessary for, or incidental to,
the effective performance of their functions

- Pimstone states that this is an unfortunate definition, that suggest that local government is
nothing more than the administrative arm of the other spheres of governments, because it gives
the impression that local government plays a predominantly administrative role, which is at odds
with the description of local government as a sphere that is relatively autonomous, and one that
enjoys expansive or original powers.

Discuss the role, composition, functioning and powers of the local sphere of
government

- Role
- The local government plays a seminal role in the democratisation process, by improving the
quality of life experienced by members of the community and to give community members a
sense of involvement in the political processes that govern their daily lives.

- Composition
- Section 157 governs the election of Municipal Councils. It is important to note that
proportionality is the overriding principle in terms of which municipal councillors must be elected.
 Legislation provides that municipal elections may be held either in terms of a list system or a
proportional electoral system combined with ward representation.

- Section 155 of the Constitution distinguishes between three different categories of

municipalities, namely;

• category A municipalities with exclusive municipal executive and legislative authority in their
area and which are referred to as metropolitan municipalities

• category B municipalities which share their municipal executive and legislative authority in
their area with a category C municipality and which are referred to as local municipalities

• category C municipalities with municipal executive and legislative authority in an area which
includes more than one municipality and which are referred to as district municipalities.

- Functioning
- Section 153 regulates the functions of a municipality:
• A municipality must structure and manage its administration and budgeting and planning
processes to give priority to the basic needs of the community.

• A municipality must structure and manage its administration and budgeting and planning
processes to promote the social and economic development of the community.

• A municipality must participate in national and provincial development programmes.

- Powers
- The executive and legislative powers of a municipality are set out in section 156 of the
Constitution. This section provides that a municipality has executive authority in respect of, and
has the right to administer:

• the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5

• any other matter assigned to it by national or provincial legislation

EXAM PREP QUESTIONS AND ANSWERS

Question 1

In 2008 the International Criminal Court issued an arrest warrant for Sudanese President
Omar Al-Bashir (hereafter, ‘Bashir’). The International Criminal Court took this initiative
because the United Nations Security Council had referred the matter of the alleged
genocide and crimes against humanity that had been perpetrated in Darfur, Sudan, to the
International Criminal Court, even though Sudan is not a state party to the Rome Statute
which established the International Criminal Court. South Africa is not only a party to the
Rome Statute, but also enacted the Implementation of the Rome Statute of the International
Criminal Court Act 27 of 2002, which domesticates the Rome Statute in South Africa. One
of the consequences of domestication of the Rome Statute is that South Africa is bound to
arrest and surrender to the International Criminal Court any person who is alleged to have
committed crimes against humanity, war crimes or genocide if that perpetrator is within
South Africa’s territory.

In June 2015, the African Union Summit of Heads of State took place in South Africa. Bashir
attended the Summit despite the fact that South Africa is a party to the Rome Statute. Upon
his arrival in South Africa, the Southern Africa Litigation Centre began urgent proceedings
to seek a declaration from the North Gauteng High Court that Bashir should be arrested
and not be permitted to leave South Africa.

Judge Hans Fabricius heard part of the matter on Sunday 13 June and made an interim
order that: “President Omar Al-Bashir of Sudan is prohibited from leaving the Republic of
South Africa until the final order is made in this application and the respondents (the
government of South Africa) is directed to take all necessary steps to prevent him from
doing so”. Notwithstanding this order, on Monday 14 June at around midday, the Sudanese
President’s plane took off from Waterkloof Airforce Base, with Bashir on board.

When the court reconvened, judges Dunstan Mlambo, Hans Fabricius and Aubrey Ledwaba
decided the matter. Importantly, Judge Mlambo stated that:

the government’s failure to arrest Bashir is inconsistent with the Constitution.

With reference to case law and provisions of the Constitution or any other relevant law as
well as the facts you’ve been given, you are required to answer the following questions:
(a) Explain fully whether the rule of law was undermined by the government. (8)

Section 1(c) of the Constitution declares that South Africa is based on the rule of law. This entails
that everyone (both human beings and organs of state) must comply strictly with the letter of the
law. However, this is not the only method of interpreting the rule of law. The other is the
substantive conception of the rule of law, whereby there is a perceived commitment of the legal
order to the supremacy of the Constitution and spirit of the law even if such constitutional or
statutory commitments are unwritten. Importantly the effect of the rule of law is that everyone –
including the President – must obey the law.

In a constitutional democracy, such as South Africa, the state is deemed to operate on the basis of
the notion of constitutionalism. As de Vos et al state on page 38, constitutionalism ‘conveys the
idea of a government that is limited by a written constitution: it describes a society in which elected
politicians, judicial officers and government officials must all act in accordance with the law’.

In line with the characteristics of a constitutional state, the fundamental precepts of the South
African constitutional state are: a supreme Constitution; the rule of law; democracy; protection of
human rights; an independent judiciary; accountability, responsiveness, openness and
transparency (as per section 1 (d) of the Constitution); and the separation of powers (even though
the separation of powers is not expressly mentioned anywhere in the Constitution).

In terms of s165 of the Constitution, the judicial authority of the republic is vested in the courts who
are independent and subject only to the constitution and the law which they must apply impartially,
and without fear, favour or prejudice. S165(5) further states that an order or decision issued by the
court binds all persons to whom and organs of state to which it applies.

The epitome of the rule of law is that no one is above the law and the law applies equally to
everyone. In addition, if the law gives an indication that things should be a certain way, then that is
precisely what should happen. Authority for this line of thinking is found in the cases of Glenister v
President of the Republic of South Africa and Others (2011) and Freedom Under Law v Acting
Chairperson: Judicial Service Commission and Others (2011). In the Glenister case, it was
confirmed that a fundamental feature of a state premised on the rule of law is that the state (or any
of the branches of the state, namely the legislature, executive or judiciary) does not act arbitrarily
or irrationally.
In this case, the rule of law was undermined by the South African government by failing to comply
with an order of court and ensuring that Al Bashir does not leave the country. South Africa is a
democratic country based on the rule of law.

(b) Explain whether judicial review of executive conduct/omission is legitimate bearing in

mind the fact that while the executive is in theory accountable to the legislature, the
members of the executive are also, more often than not, members of the leadership of
the political party to which the majority of members of the legislature belong. Is judicial
review in the context of the Bashir matter not counter-majoritarian and thus inconsistent
with South Africa’s democratic dispensation?
(10)

To answer the question properly, the should be an understanding of the principle of separation of
powers and whether it means a strict separation between the legislature, executive and judiciary
and the extent to which judicial review of legislative function or executive conduct is permissible.

The Constitutional Principles which formed part of the Interim Constitution required that the
Constitution contains a separation of powers between the three branches of state as well as the
appropriate checks and balances on the exercise of power of each of these branches to “ensure
accountability, responsiveness and openness”. According to de Vos et al, “the separation of
powers is also closely associated with the protection of human rights more generally in addition to
safeguarding political liberty. This is so because separation of powers aims to protect society
against the abuse of political power, something that is required to protect human rights” (page 60).

The doctrine of separation of powers does not require a strict separation between the judiciary, the
legislature and the executive because it requires the judiciary to check whether the other branches
comply with the law and exercise their authority in conformity with the Constitution (known as
judicial review). The result is that the judiciary should not interfere in the functions and processes
of other branches of government unless it is mandated by the Constitution in cases where the
legislature or executive fails to comply with its constitutional or legislative mandate. Accordingly,
the division of powers is not strictly enforced: if it appears that one sphere of government fails to
comply with its constitutional obligations, the judiciary must intervene to uphold the Constitution.

The Constitution itself does not prescribe a specific, fixed form of the separation of powers
doctrine. Instead, each case must be assessed on its own merits and guidelines can be developed
over time as to the best method of ensuring that each of the 3 principal organs of state
(legislature, executive, judiciary) retain their particular areas of power and expertise, but at the
same time (as the counter-majoritarian dilemma has taught us), the judiciary is entitled and
empowered to declare law or conduct invalid if it does not comply with the Constitution.

In the context of the Al Bashir matter, the judiciary was expected to review the decision of the
executive since the executive had failed to enforce the order of the court-which was to ensure that
Al Bashir was not allowed to leave the country.

Is judicial review in the context of the Bashir matter not counter-majoritarian?

Judicial review of executive conduct is legitimate and does not amount to counter majoritarian.
The courts have testing powers. The relationship between a supreme constitution and the court's
testing power is that when a constitution is supreme, ALL law and ALL conduct must comply with it
and if it does not comply, it MUST be declared invalid. We, the South African people, chose to
give our courts this testing power when our representatives drafted the Interim and Final
Constitutions in the early 1990s and provisions were included such as section 172 which obliges
the courts to declare law invalid. Accordingly, the testing power of the courts reinforces the
supremacy of the Constitution and ensures that it remains supreme and that all laws including
executive conduct are compatible with it. The Glenister case is an excellent illustration (discussed
on page 102 of the textbook). When a court undertakes the process of judicially reviewing
legislation or executive conduct, the judges carefully inquire into the constitutionality of the
legislation or the conduct of the executive, but cannot (and do not) simply substitute the views of
the legislature or executive with its own. The judiciary upholds the separation of powers doctrine
and defers to the authority and expertise of the legislature or executive who is then required to
draft a new law which conforms to the Constitution or to rectify the irrational and unconstitutional
executive decision.

Essentially, the counter-majoritarian dilemma is where 11 judges (that is the number of judges in
the Constitutional Court, but it may even be as little as a single judge in the High Court)) have
declared a law invalid, but that law that they have declared invalid is a law that was passed by 400
Parliamentarians who had all assumed their positions in Parliament because we, the people had
voted for the political party to which they belong, and they represent that political party and thus,
they represent us and have been mandated by us to pass laws in our interests. This is based on
the fact that judges of the courts are appointed and not democratically elected like members of the
legislature and executive. So it seems as if the judges have immense or superior powers over the
400 members of parliament.

But, if the court comes to the conclusion that the excuses being made by the executive are weak
and that there is sufficient evidence to prove the contrary then in order to uphold the Constitution,
the court will - and must - intervene and order the executive to make sure that it immediately
correct the wrong it has made. Though it appears as though the judiciary is intruding too deeply
into the domain of the executive when doing this, which is undemocratic, but in fact, it is done with
the purpose of ensuring that real constitutional democracy is realised.

Similarly, if a law appears invalid, a court has the right to declare that law invalid, but (to quote the
De Lange v Smuts case) must retain the delicate balance between what the judiciary is permitted
to do and what the legislature does, so when the court declares a law invalid, it will only say that
the law must be rectified. The court definitely does not re-write the law, because that is the proper
role of the legislature. Likewise, when declaring executive conduct unconstitutional, the court will
also leave it up to the executive to rectify the unconstitutional conduct; it will not tell the executive
what to do, unless it is absolutely necessary.

(c) The fact cannot be ignored that all three of the judges deciding the Bashir matter are
male. Critically discuss the constitutional provision on the appointment of judicial
officers and provide an opinion on whether the institution established to uphold the
integrity and independence and ensure the transformation of the judiciary has
succeeded in its task. Refer to recent controversies and relevant case law to support
your answer. (10)

Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a
fit and proper person may be appointed as a judicial officer. Any person to be appointed to the
Constitutional Court must also be a South African citizen”. Section 174(2) further indicates that
the appointment of a diverse judiciary is a constitutional imperative and provides that there is need
for the judiciary to reflect broadly the racial and gender composition of South Africa which must be
considered when judicial officers are appointed. Therefore, as a transformative state, it is
absolutely essential for the judiciary to mirror society. It is therefore extremely concerning that so
few black women are on the bench.

The institution established to uphold the integrity and independence and ensure the transformation
of the judiciary is known as the Judicial Service Commission and is created by section 178 of the
Constitution. The JSC is comprised of 23 members who are drawn from the judiciary; attorneys
and advocates; two houses of the national legislature; executive, civil society and academia. The
JSC is chaired by the Chief justice of the CC. The role of the JSC in the appointment of judges
differs and depends on the nature of the appointment to be made. For instance, when appointing
the Chief Justice and Deputy Chief Justice of the CC the President as head of the executive plays
a major role and appoints a person of his/her choice after consulting the JSC and the leaders of
the parties represented in the NA and the President must also consult the JSC before appointing
the President and Deputy President of the SCA. In the appointment of other judges of the
Constitutional Court, the JSC does not play a decisive role as the President appoint judges of the
CC after consulting the Chief Justice and the representatives of parties in the NA. The JSC plays
a central role in the sense that it has to prepare a list of nominees with three names more than the
number of appointment to be made and submit the list to the President.

The JSC plays a more decisive role in the appointment of all other judges to the SCA; High courts
and other specialised courts. In this case, the JSC selects candidates to fill such vacancies, and
the President does not have a discretion but is required to appoint the candidates selected by the
JSC.

The requirement set out in Section 174(2) that there is need for the judiciary to reflect broadly the
racial and gender composition of South Africa is important and has been a concern it the
appointment of judges by the JSC. The historical architect of the South African judiciary inherit
post 1994 was exclusively male and white therefore there is a need to increase the diversity of the
bench through special measures. This should also address the historical discrimination of race
and gender prevalent in South Africa pre 1994. Diversity in the bench is needed to improve the
quality of justice by South African Courts.

Based on recent statistics, the JSC is doing relatively well in ensuring a non-racial judiciary but
struggling in improving gender representation. The question and the debate has always been
whether racial and gender representation should trump other consideration for the appointment to
the bench. Lack of women appointees has been a source of debate in the legal fraternity.

NB! Students should be credited for discussing any of the cases or controversies
regarding this section like Helen Suzman Foundation v Judicial service Commission and
others; etc. since none of the recent cases and issues were prescribed.

(d) Assume that the Government is not satisfied with the decision of the North Gauteng
High Court and wishes to take the matter on appeal. With reference to the Constitution
Seventeenth Amendment Act 2012, which court will have jurisdiction to hear this appeal
and make the final decision on the matter? Explain. (6)

Before 2013, in terms of s167(3)(a) the Constitutional Court was the court of final instance in
relation to constitutional matters and issues connected with a decision on a constitutional matter
and was not a court of general jurisdiction. This was the case until August 2013 when the
Constitution Seventeenth Amendment Act was passed and amended S167(3)(a).
The Seventeenth Amendment Act drastically changed the jurisdiction of the Constitutional Court.
The amended S167(3)(a) of the Constitution makes it clear that the Constitutional Court is the
highest court of the Republic. S167(3)(b) state that the CC may decide constitutional matters and
any other matter, if the CC grants leave to appeal on the grounds that the matter raises an
arguable point of law of general public importance which ought to be considered by that court.

Therefore the government can take the Appeal to the Constitutional Court which will have a
discretion on whether it will hear an appeal or not. The Constitutional Court will hear the appeal if
according to the court the matter raises an arguable point of law and if such point of law is of such
general public importance that it is necessary for the CC to give clarity on this point of law.

(e) Suppose that the Court finds that the African Union Host Country Agreement has no
status in South African law and assume further that it was the President himself who
instructed various officials to facilitate Bashir’s departure from South Africa. What
possible courses of action exist in the circumstances? Will this warrant removal of the
President from office? Critically discuss. (8)

In terms of the Constitution, there are two methods of removal of the President from office. The
first method by which the President can be removed from office is in terms of a resolution passed
pursuant to section 89(1) of the Constitution. In such an instance, the National Assembly must
have objectively concluded that one of the specific grounds for the removal of the President exists,
including a serious violation of the Constitution or the law, serious misconduct or inability to
perform the function of office. Accordingly, these grounds serve to safeguard the nation against
the abuse of power by the President. Should one of these grounds exist, a two-thirds majority
(66.6%) vote is required. Schedule 3 of the Electoral Act 73 of 1998 has set the number of
members of the National Assembly at 400. Therefore, 267 out of 400 member of the National
Assembly must vote in favour of the removal of the President. The removal of the President in this
manner has no relation with political reasons, such as the President having lost the support of the
majority party in Parliament.

The other method by which the President can be removed from office is in terms of section 102(2)
of the Constitution and this is for purely political reasons. This form of removal takes the form of a
motion of no confidence in the President being passed. In order for a motion of no confidence to
succeed, all that is required is a simple majority vote (51%). 204 out of 400 members of the
National Assembly must vote in favour.
It is thus obviously easier to remove the President by way of passing a motion of no confidence,
rather than impeachment because of the lower threshold of votes required. This, however, is not
as straight forward as it may seem, because given that the minority parties combined only have
161 seats, which is quite a considerable number off the required number of 204, it would be
extremely difficult for them to achieve a majority, unless members of the majority party also vote in
favour of the motion of no confidence, which is highly unlikely in the south African context where
members of political parties support the political leadership, under virtually any circumstance.

This method can only be achieved when the President loses the support of his party. The impact
of the constitutional provision concerning motion of no confidence is that now any member of the
National Assembly can propose a motion of no confidence in the President (and not only the
majority party) and this motion must be debated in the National Assembly. This transpired as a
result of the case of Mazibuko Leader of the Opposition in the National Assembly v Sisulu MP
Speaker of the National Assembly and Others (2012) where the Western Cape High Court
considered whether the National Assembly and its Speaker had erred in not scheduling a debate
on a vote of no confidence in the President which had been tabled by the official opposition. The
most relevant part of the Court’s decision was when it stated: “you must operate within a
constitutionally compatible framework; you must give content to section 102 of the Constitution;
you cannot subvert this expressly formulated idea of a motion of no confidence; however, how you
allow this right to be vindicated is for you to do, not for the courts to so determine”.

Of significant importance in the context of a motion of no confidence, sections 187 to 190 in

Chapter 12 of the Rules of the National Assembly contained provisions which permitted the
majority party in the National Assembly or any of the minority parties to block the tabling,
discussion, consideration and voting on a motion of no confidence. The unconstitutional provision
was thus declared invalid by the Constitutional Court in the case of Mazibuko v Sisulu and Another
2013 (6) SA 249 (CC), where Deputy Chief Justice Moseneke did not hesitate to highlight the
importance of a motion of no confidence in a democratic society, at paragraph 43, where he said:

A motion of no confidence in the President is a vital tool to advance our democratic hygiene. It
affords the Assembly a vital power and duty to scrutinize and oversee executive action … The
ever-present possibility of a motion of no confidence against the President and the Cabinet is
meant to keep the President accountable to the Assembly which elects her or him. If a motion of
no confidence in the President were to succeed, he or she and the incumbent Cabinet must
resign. In effect, the people through their elected representatives in the Assembly would end the
mandate they bestowed on an incumbent President.

There is even a third possibility which potentially exists (precedent has been set in this regard) and
that is the recalling of the President by the political party to which he belongs. At times, when the
President lose the support of the majority party leadership, she or he may be “recalled” as was the
case with former President President Thabo Mbeki.

(f) In response to the international community’s outrage that Bashir was allowed to leave
South Africa, the Government of South Africa wishes to amend the Constitution
permitting it to disregard any national laws and the principle of the supremacy of the
Constitution when matters concerning “protection of international relations between
South Africa and her African counterparts” arise. In light of this you are required to
discuss the majorities required to amend different parts of the Constitution (s 74(1)–(3)
of the Constitution) and the special procedures required to prevent Parliament from
amending the Constitution without careful consideration (s 74(4)–(8) of the
Constitution). (8)

South African Constitution is classified as an inflexible Constitution and as such requires special
procedure to be amended. The procedure for amending different sections of the Constitution is
stated in Section 74 of the Constitution. While some sections of the Constitution require 75% of
the members of the National Assembly while others require a two third majority. According to the
Constitution, the following is provided:

Section 1 and section 74 of the Constitution may maybe amended by

(a) the National Assembly, with a supporting vote of at least 75 per cent of its members and

(b) the National Council of Provinces, with a supporting vote of at least six provinces.

S74 (2) provides that Chapter 2 may be amended by a Bill passed by-

(a) the National Assembly, with a supporting vote of at least two thirds of its members and

(b) the National Council of Provinces, with a supporting vote of at least six provinces

S74 (3) indicate that any other provision of the Constitution may be amended by a Bill
passed-

(a) by the National Assembly, with a supporting vote of at least two thirds of its members

(b) also by the National Council of Provinces, with a supporting vote of at least six provinces and if
the amendment-

(i) relates to a matter that affects the Council;

(ii) alters provincial boundaries, powers, functions or institutions; or

(iii) amends a provision that deals specifically with a provincial matter.

In addition S74 (4)-(8) among others indicate that a Bill amending the constitution should not
include other provisions but must solely provide for provisions amending the Constitution. Further,
it is a requirement that 30 days before the Bill amending the constitution is introduced in
parliament, it must be published in the Government Gazette for public comment, to the provincial
legislature for their views and to the NCOP for a public debate. Also, the Bill should not be put to a
vote in the National Assembly within 30 days of its introduction or tabling.

Question 3

3.1 The Ubuntu philosophy is premised on an acknowledgment that man is a social

being. A society governed by Ubuntu also emphasises that everyone should participate in
society and not disappear in the whole. A tradition of consultation and decision making by
ordinary members of society is also embodied in Ubuntu. The consultation that precedes
decision making in societies that acknowledge Ubuntu is derived from an age old pre-
colonial African ethos that, arguably, permeated all pre-colonial African societies. The
consultation preceding decision making in most pre-colonial African societies has led
scholars to conclude that most African societies were inherently democratic even though
the word democracy may not have been in use then.

With reference to the concept of Ubuntu, you are to prepare an essay in which you
highlight the comparisons between constitutionalism and Ubuntu using relevant case law,
provisions of the Constitution and fundamental principles and concepts underpinning
constitutional law in order to reach a legally-sound and compelling conclusion.
(10)

The African philosophical concept of Ubuntu was incorporated in the South African Constitution of
1993 (the interim Constitution). The 1996 Constitution made no express mention of Ubuntu but the
notion has been referred to in some case law. As a fundamental value that informs the regulation
of African interpersonal relations and dispute resolution, Ubuntu is inherent to customary law.
Moreover, since the Constitution is autochthonous (indigenous), the concept of Ubuntu permeates
the constitutional system in South Africa. Ubuntu represents humanity, personhood, compassion,
humanness and morality. It is a metaphor that describes group solidarity which is central to the
survival of communities with a scarcity of resources (Y Mokgoro ‘Ubuntu and the law in South
Africa’ Buffalo Human Rights Law Review (4) 1998). Indeed, Ubuntu essentially means that
“everybody counts in society” and therefore, Ubuntu’s relationship with the constitutional law
principle of democracy is clear: in a democracy, everyone’s opinion/view counts and must be
considered. This is the epitome of a multi-party democracy, which South Africa has. In the context
of scarce resources (as per Mokgoro’s description of Ubuntu), corruption cannot be tolerated
because it is those same resources which are required for society’s development. Ubuntu thus
signifies the approach that everyone must act in solidarity towards a common objective.
Moreover, the idea of morality in the context of Ubuntu can be likened to adherence to the rule of
law (one should feel morally bound to comply with the law). Ubuntu is also applicable with respect
to participation in the legislative process. Since Ubuntu means that everyone’s opinion counts, the
people should be afforded an opportunity to provide their opinion on decisions that will affect them.

Constitutionalism is defined as the principle or system of government in accordance with the

Constitution. It describes a society in which government must act in accordance with the law which
derives its legitimacy and power from the Constitution itself. Constitutionalism prescribes limits on
the exercise of state power and provides mechanisms to ensure that the exercise of power does
not exceed the limits set by the Constitution. South African constitutionalism relates to more than
the mere technical legal regulation of the exercise of state power. It is thus, not only descriptive in
nature. It is also prescriptive in that it prescribes how state power should be exercised. The
Constitution is the supreme law of the Republic (section 2 of the Constitution).it also contains an
entrenched Bill of Rights, which is the cornerstone of democracy in South Africa (section 7 (1) of
the Constitution). The Republic of South Africa is founded on the values of human dignity,
equality, promotion of human and freedoms and multi-party democracy to ensure accountability,
responsiveness and openness and the rule of law (section 1 of the Constitution). The founding
values of the democracy established in the Constitution coincide with some key values of Ubuntu,
e.g. human dignity, respect, inclusivity, compassion, concern for others, honesty and conformity
(see Y Mokgoro at 9). Also the Ubuntu values of collective unity and group solidarity can translate
in to the spirit of national unity demanded of the new South African society.

In S v Makwanyane 1995 (3) SA 391 (CC) the Constitutional Court referred to Ubuntu as the
concept which could serve as a basis from which interpretation of the Bill of Rights could proceed.
Makgoro J stated that “although South Africans have a history of deep divisions characterised by
strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines,
is the value of Ubuntu - a notion now coming to be generally articulated in this country
(Makwanyane para 306). Accordingly, the concept of Ubuntu is placed at the forefront of
constitutional interpretation of the fundamental rights entrenched in the Constitution.
3.2 In Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015
(1) SA 551 Schippers J of the Western Cape High Court held that:

The fact that the findings of and remedial action taken by the Public Protector are not
binding does not mean that these findings and remedial action are mere recommendations,
which an organ of state may accept or reject.

On 24 August 2015 the Public Protector released her report titled “Derailed” which dealt
with maladministration at Prasa and which implicated the former CEO, Lucky Montana in
financial mismanagement, procurement irregularities, unmanaged conflict of interest,
nepotism/corruption, irregular appointments. In response, Montana has declared that he
intends going to court to have the report set aside. Provide a substantiated opinion on the
status of the Public Protector and evaluate the extent to which there is compliance with the
findings of the Public Protector. (7)

Section 181 of the Constitution guarantees the independence of the Public Protector together with
the other State Institutions Supporting Constitutional Democracy. These institutions are
independent and subject only to the Constitution and the law. Section 182 confers power on the
Public Protector to investigate any conduct in state affairs, or in the public administration in any
sphere of government, that is alleged or suspected to be improper or prejudice. Furthermore it has
a mandate to report on that conduct and to take appropriate remedial action. The Public Protector
must report to the national Assembly at least a year, and the government is required to act on the
findings of the Public Protector.

Initially there was confusion surrounding the status of the findings of the Public protector. This was
highlighted in Democratic Alliance v South African Broadcasting Corporation Ltd 2015 (10 SA 551,
where the Court held that:

The fact that the findings of and remedial action taken by the Public Protector are not binding does
not mean that these findings and remedial action are mere recommendations, which an organ of
state may accept or reject (para 59).

Subsequently the Supreme Court of Appeal lends support to the fact that the Public Protector’s
findings are indeed binding. In South African Broadcasting Corporation Ltd v Democratic Alliance
(393/2015) [2015] ZASCA 156, the Court held that:
The Public protector cannot realise the constitutional purpose of her office if other organs of state
may second – guess her finding and ignore her recommendations. Section 182(1)(c) must
accordingly be taken to mean what it says. The Public Protector may take remedial action herself.
She may determine the remedy and direct its implementation. It follows that the language, history
and purpose of section 182 (1)(c ) make it clear that the Constitution intends for the Public
Protector to have the power to provide an effective remedy for the State misconduct, which
includes the power to determine the remedy and direct its implementation (para 52).

Finally, the Constitutional Court re-affirmed the decision of the Supreme Court of Appeal on the
status of the findings of the Public Protector that it was binding. In Economic Freedom Fighters v
Speaker of the national Assembly; Democratic Alliance v Speaker of the National Assembly (
CCT143/15;CCT 171/15) [2016] ZACC 11 ( 31 March 2016) Mogoeng CJ held that:

The public Protector would arguably have no dignity and be ineffective if her directives could be
ignored willy-nilly. The power to take remedial action that is so inconsequential that anybody,
against whom it is taken, us free to ignore or second-guess, is irreconcilable with the need for an
independent, impartial and dignified Public protector and the possibility to effectively strengthen
our constitutional democracy (para 67).

(Students should not be penalised for not referring to this case which was decided towards
the end of the semester).

In certain instances both the executive and Parliament were reluctant to comply with the findings
of the Public Protector. This is apparent from the judgments of Democratic Alliance v South
African Broadcasting Corporation Ltd and Economic Freedom Fighters v Speaker of Parliament.

3.3 With reference to the provisions of the Constitution and case law, fully explain whether
an ordinary individual member of the National Assembly who is not a cabinet member can
introduce a Bill in the National Assembly. (6)

Section 73 (2) of the Constitution confers power on a cabinet member or a deputy Minister or a
member or Committee of the NA to introduce a Bill in the NA. Because of political dominance of
the executive in Parliament draft legislation usually introduced by members of the Cabinet and
passed by Parliament. However, individual members of the Na may initiate legislation called
private members Bills. The previous Rules of the NA made it difficult for a member of the NA to
initiate Bills because the Rules permitted a member of the NA to introduce a Bill into the NA only if
a majority of members of the NA had given permission to an MP to initiate such legislation. In
practice, this means that members of the NA who are not members of the Cabinet, more
particularly members of the opposition could never introduce any Bills into the NA without the
permission of the Majority party. In Oriani Ambrosini, MP v Sisulu, MP Speaker of the National
Assembly 2012 (6) SA 588 (CC) the Constitutional Court invalidated the Rules of the NA which
required a member of the NA to obtain permission from the NA to initiate and introduce Bills. The
importance of the provision in the Constitution which allows individual MPs to initiate legislation
was re-affirmed by the Court that it provides members of the NA with an opportunity to promote
their legislative proposals so that they could be considered properly (para 48).

3.4 Briefly mention how the problem of conflicting laws between national and provincial
laws is resolved. Your answer must relate specifically to both Schedule 4 and Schedule 5
of the Constitution and must indicate which law will prevail in each specific circumstance.
(7)

The Constitution provides for mechanisms for the resolution of conflict between national and
provincial legislation falling within a functional areas of concurrent national and provincial
legislative competence (Schedule 4 matters). In terms of section 146(2) national legislation that
applies uniformly with regard to the country as a whole will prevail over provincial legislation if any
of the following conditions are established:

• the national legislation deals with a matter that cannot be regulated effectively by provincial
legislation

• the national legislation provides uniformity to a matter that requires that requires uniformity
across the nation

• the national legislation is necessary for the maintenance of national security; the
maintenance of economic unity; the protection of common market in respect of the mobility
of goods, services, capital and labour; the promotion of economic activities across
provincial boundaries; the promotion of equal opportunities or equal access to government
services; or the protection of the environment.

Furthermore, national legislation will prevail if it is aimed at preventing unreasonable action by a

province that is prejudicial to the economic, health, or security of another province or the country
as a whole or impedes the implementation of economic policy (section 146(3)).

Section 147 regulates a conflict falling within the functional areas of exclusive provincial legislative
competence (Schedule 5). In terms of this provision, national legislation prevails over provincial
legislation if it is necessary to;

• maintain national security

 • maintain economic security

• maintain essential national standards

• establish minimum standards required for the rendering of services

• prevent unreasonable action taken by a province which is prejudicial to the interests of

another province or to the country as a whole.

QUESTION 2

2.1 The Republic of Matata has split as a result of the years of violence between the major
ethnic tribes. The Makali tribe in the south of the Matata Republic has declared itself an
independent country called the Republic of No-Nonsense, with a population of 1 000 000
inhabitants. No-Nonsense Republic is currently ruled by a military commander, General
Talk at Your Own Risk.

The country has a serious water shortage and depends on the surrounding countries for
water, and also relies on food subsidies from the neighbouring countries. The inhabitants
of the Republic of No-Nonsense are pleased with the governance of General Talk at Your
Own Risk and hope he rules forever.

Does the newly formed Republic of No-Nonsense qualify as a state? (To answer this
question, you must list the characteristics of a state.) (5)

The characteristics of a state are:

1) a specific, geographically defined territory;

2) a community of people who live within that territory;

3) a legal order to which the community is subject,

4) An organised system of government which is able to uphold the legal order;

5) a certain measure, at least of separate political identity, if not sovereign political status.
From the facts we are able to determine that the Republic of No-Nonsense (a community of like
people) declared itself an independent country, and possesses a geographically defined territory,
thus it is afforded a separate political identity. The fact that the inhabitants are pleased with the
governance of the republic indicates that there is a legal order. Further, the Republic is ruled by
General Talk At Your Own Risk, indicating a system of government. Therefore, the Republic of
No-Nonsense qualifies as a state.

2.2 When does the president exercise executive authority?

(6)

Section 84 and 85 provide that the president’s powers as head of the national executive authority
includes performing any executive function provided for in the Constitution or in national
legislation. When the president is exercising a political discretion on behalf of the government, he
is acting as head of the executive. The president is exercising executive authority when he
appoints the Deputy President, Cabinet Ministers and Deputy Ministers. He also has the authority
to appoint the leader of government business in the National Assembly from among the members
of the National Assembly (the Speaker of Parliament).

The President exercises executive authority by:

~ implementing national legislation except where the Constitution or an Act of Parliament provides
otherwise

~ developing and implementing national policy

~ co-ordinating the functions of state departments and administrations

~ preparing and initiating legislation

~ appointing judges (section 174(3));

~ appointing the National Director of Public Prosecutions (section 179(1)(a));

~ appointing the Military Command of the National Defence Force (section 202(1));

~ appointing the National Commissioner of the South African Police Service (section 207(1));

~ appointing the head of the National Intelligence Agency (section 209(2));

~ appointing an inspector monitoring the intelligence service (section 210);

~ appointing members of the Financial and Fiscal Commission (section 221(1)).

2.3 What does it mean to act “together with the other members of the Cabinet”? (4)

This indicates that decisions on the powers and functions of the president as head of the national
executive are normally taken at cabinet meetings. The degree of consent needed from other
members of the cabinet depends on the decision-making procedures followed in the cabinet. In
other words, “consultation” is required, even though the president is not bound by any
recommendations made. However, in some instances, the president may only make executive
decisions “on the recommendations or advice” of cabinet. Examples include a declaration of a
state of national defence, which must be approved by parliament. In addition, it entails that the
president must be sensitive not only to the members of cabinet who elected him but also to the
general public who voted for the political party which won the election.

2.4 Read the following passage and answer the questions that follow:

On 20 September 2008, the ANC Secretary General, Gwede Mantashe, publicly announced
that the ANC has decided to recall the former president, Thabo Mbeki. In response to this,
on 25 September 2008, the then Minister in the Office of the President, Essop Pahad, said “I
personally do not agree with the decision of the NEC (the National Executive Committee of
the ANC). I think the decision (to recall Mbeki) was profoundly unjust”.

Answer the following questions with reference to section 89 of the 1996 Constitution which
provides for the removal of the President from his office:

(a) Who has the power to remove the President? (2)

National Assembly by passing a resolution with a two-third majority (66.6%) vote in favour.

(b) On what grounds can the President be removed from office?

(3)

1) serious violation of the Constitution or law;

2) serious misconduct;

3) inability to perform functions of office. [20]

QUESTION 3

3.1 With
refere
nce to
the
provis
ions
of the
Const
itution
and
case
law,
critica
lly
discu
ss the
privile
ges of
Memb
ers of
Parlia
ment
and
how
these
privile
ges
are
regula
ted.
(10)

Parliamentary privileges are the powers and privileges enjoyed by members of Parliament that
enable them to perform their functions without hindrance (external interference). Privileges are
stipulated in section 57(1) of the Constitution and include (1) the privilege of Parliament to punish
persons for contempt and to determine its own procedures; (2) the freedom of members to say
anything in Parliament, without having to fear that they will be held liable in a Court of law; (3)
Parliamentary privileges under the 1996 Constitution. The particulars of the privileges provided for
in the Constitution are regulated by the Powers and Privileges of Parliament and Provincial
Legislation Act 94 of 2004.

The National Assembly is competent to determine and control its own internal arrangements,
proceedings and procedures, and to make rules and orders concerning its business, with due
regard to representative and participatory democracy, accountability, transparency and public
involvement. In particular, members of the National Assembly are guaranteed freedom of speech
in the Assembly and its committees, provided that they adhere to the internal rules of debate. For
example, they are not allowed to use offensive or unbecoming language (such as the statement
by EFF MP Julius Malema on 19 June 2014 when he said that “the ANC murdered Marikana
miners”). Members of Parliament thus enjoy freedom of speech (within limits) and are further
exempt from civil or criminal liability for anything they have said or produced before the Assembly
or its committees.

Parliament and its committees are competent to summon persons to give evidence and submit
documents (in terms of sections 14-17 of the Privileges Act 4 of 2004). Parliament is also entitled
to enforce its own internal disciplinary measures for contempt of Parliament and other
infringements of the Act; failure to comply with an order or decision of Parliament; failure to submit
documents upon request; perjury; et cetera.

The case of Speaker of the National Assembly v De Lille MP and Another is a relevant case.
Patricia De Lille stated (in Parliament) that she had information that 12 members of the governing
party had been spies for the apartheid government. When challenged she mentioned eight
names, some of which referred to people who were not members of the National Assembly. The
Speaker ruled that it was ‘unparliamentary’ to refer to some members of the National Assembly as
‘spies’ and ordered her to withdraw her remarks, which she did. An ad hoc committee of the
National Assembly recommended that De Lille be directed to apologise and suspended for 15
parliamentary working days. The National Assembly adopted this recommendation. Aggrieved by
the decision, De Lille challenged the constitutionality of her suspension. The High Court (per
Hlophe J) held that under a supreme Constitution, the exercise of parliamentary privilege is
subject to judicial review. The Supreme Court of Appeal upheld the decision of the High Court by
reasoning that section 58(2) of the Constitution expressly guarantees freedom of speech in the
National Assembly. The National Assembly therefore had no constitutional authority to suspend
De Lille. However, the Rules have since been amended to provide the Speaker or Deputy
Speaker with the authority to suspend a member for a period of between five and 20 parliamentary
working days.

3.2 It is
univer
sally
accep
ted in
moder
n
demo
cracie
s that
parlia
ment
canno
t
attend
to
every
single
task
that it
is
enjoin
ed to
perfor
m,
partic
ularly
when
it
come
s to
makin
g laws
aimed
at
regula
ting
the
condu
ct of
its
subje
cts.
Parlia
ment
canno
t
forese
e
every
single
occur
rence
that
may
requir
e
regula
tion
and
usuall
y,
theref
ore,
drafts
laws
in
skelet
al
form.
In the
light
of this
state
ment,
briefly
discu
ss,
with
specif
ic
refere
nce to
case
law,
what
you
under
stand
by the
 term
“dele
gation
of
legisl
ative
autho
rity”,
and
discu
ss
wheth
er or
not
Parlia
ment
may
deleg
ate its
functi
ons to
the
execu
tive.
(10)

The question whether or not Parliament can assign its law making function to the executive was
first answered in the case of Executive Council of the Western Cape v President of the Republic of
South Africa 1995. The said case involved section 16A of the Local Government Transition Act,
which conferred on the President the power to amend the Act by proclamation. Consequently, the
President used this power to transfer certain powers from the provincial to the national
government. As a result, the Executive Council of the Western Legislature challenged the
constitutionality of section 16A of the Act, and the proclamation issued in terms of it. The legal
question that arose was whether parliament could assign its law making functions to the executive
and if so, under what circumstances.

Chaskalson P held that the legislative authority vested in Parliament under section 37 of the
interim Constitution is expressed in wide terms – “to make laws for the Republic in line with the
interim Constitution”. He further pointed out that in a modern state, detailed provisions are often
required for the purpose of implementing and regulating laws and Parliament cannot be expected
to deal with all such matters itself. Moreover, he outlined that there is no provision in the
Constitution which prohibits Parliament from delegating subordinate regulatory authority to other
bodies and the power to do so is necessary for effective law-making. However, it was highlighted
that there is a distinction between delegating authority to make subordinate legislation within the
framework of a statute under which the delegation is made, and assigning plenary legislative
power to another body, including, as section 16A does, the power to amend the Act under which
the assignment is made.

The Court decided in this case that Parliament delegating the power to amend its laws to the
President as head of the executive was inconsistent with the doctrine of separation of powers and
was not in line with the relevant constitutional provision which deals with legislative authority that
is not merely directive but peremptory. The court further argued that although the need for
assignment of subordinate legislative authority is essential, the assignment of plenary legislative
powers is a different matter altogether. Moreover, it is not allowed under the new constitutional
dispensation on the basis that it could give rise to a constitutional crisis. Therefore, Parliament
cannot delegate its original law-making power to the executive. However, it can delegate the
making of subordinate legislation such as presidential proclamations.

The position remains the same under the 1996 Constitution. This is supported by the case of
Justice Alliance of South Africa v President of the Republic of South Africa and Others 2011 in
which the Constitutional Court confirmed the view that Parliament cannot delegate its plenary law-
making power to the President. [20]

QUESTION 4

4.1 The epitome of constitutional democracy in action is judicial review, despite the fact
that it is perceived as being undemocratic. With reference to applicable constitutional law
principles and case law, discuss what is meant by the phrase “counter-majoritarian
dilemma” and indicate whether or not it is undemocratic for the courts in South Africa to
review action taken by the legislature or executive. (10)

The relationship between a supreme constitution and the court's testing power is that when a
constitution is supreme, ALL law and ALL conduct must comply with it and if it does not comply, it
MUST be declared invalid. We, the South African people, chose to give our courts this testing
power when our representatives drafted the Interim and Final Constitutions in the early 1990s and
provisions were included such as section 172 which obliges the courts to declare law invalid.
Accordingly, the testing power of the courts reinforces the supremacy of the Constitution and
ensures that it remains supreme and that all laws are compatible with it.
The case of De Lange v Smuts NO is very important for our understanding of the unique and
special form that the separation of powers doctrine takes in South Africa. What the court held is as
follows:

… over time our courts will develop a distinctively South African model of separation of powers,
one that fits the particular system of government provided for in the Constitution and that reflects a
delicate balancing, informed both by South Africa’s history and its new dispensation, between the
need, on the one hand, to control government by separating powers and enforcing checks and
balances, and, on the other, to avoid diffusing power so completely that the government is unable
to take timely measure in the public interest.

What this essentially means is that the Constitution itself does not prescribe a specific, fixed form
of the separation of powers doctrine. Instead, each case must be assessed on its own merits and
guidelines can be developed over time as to the best method of ensuring that each of the 3
principal organs of state (legislature, executive, judiciary) retain their particular areas of power and
expertise, but at the same time (as the counter-majoritarian dilemma has taught us), the judiciary
is entitled and empowered to declare law or conduct invalid if it does not comply with the
Constitution. Essentially, the counter-majoritarian dilemma is where 11 judges (that is the number
of judges in the Constitutional Court, but it may even be as little as a single judge in the High
Court)) have declared a law invalid, but that law that they have declared invalid is a law that was
passed by 400 Parliamentarians who had all assumed their positions in Parliament because we,
the people had voted for the political party to which they belong, and they represent that political
party and thus, they represent us and have been mandated by us to pass laws in our interests.
Thus, on the face of it, it appears undemocratic whereas it is not undemocratic because it is
specifically permitted in the Constitution (in section 172).

The Treatment Action Campaign case is a good example. We know that the Department of Health
(part of the executive) has specialised knowledge about how much money they have to provide
health care, and how many doctors and nurses are employed to cater to the health care needs of
the people of South Africa, and it is composed of experts who engage in research about the
effectiveness of certain medicines. The judiciary definitely does not have all of this information at
its disposal and can't even begin to start trying to decide cases that impact on the sensitive areas,
such as budgetary allocations or the effectiveness of certain medicines without receiving sufficient
information. In general, in cases like the Treatment Action Campaign case where HIV positive
pregnant were not receiving nevirapine even though there were various studies showing the
immense benefits of nevirapine as far are prevent the transmission of HIV to unborn children, the
court will defer to the knowledge and expertise of the executive if the executive says that they do
not have the money to provide the drug and do not have enough medical staff to administer the
drug and have reservations about the effectiveness of the drug and not declare that the executive
has acted unconstitutionally. But, if the court comes to the conclusion that the excuses being
made by the executive are weak and that there is sufficient evidence to prove that nevirapine will
save millions of lives and that in fact, millions of the nevirapine tablet had been donated to the
South African government by India, then in order to uphold the Constitution, the court will - and
must - intervene and order the executive to make sure that it immediately begins to administer the
drug. It appears as though the judiciary is intruding too deeply into the domain of the executive
when doing this, which is undemocratic, but in fact, it is done with the purpose of ensuring that real
constitutional democracy is realised. As such, the court in the TAC case took timely measures to
protect the public interest.

Similarly, if a law appears invalid, a court has the right to declare that law invalid, but (to quote the
De Lange v Smuts case) must retain the delicate balance between what the judiciary is permitted
to do and what the legislature does, so when the court declares a law invalid, it will only say that
the law must be rectified. The court definitely does not re-write the law, because that is the proper
role of the legislature. Glenister case and the Fourie case are good examples. Likewise, when
declaring executive conduct unconstitutional, the court will also leave it up to the executive to
rectify the unconstitutional conduct; it will not tell the executive what to do, unless it is absolutely
necessary.

4.2 With reference to the cases of Freedom Under Law v Acting Chairperson: Judicial
Service Commission and Others 2011 3 SA 549 (SCA) and Premier of the Western Cape
Province v Acting Chairperson: Judicial Service Commission and Others 2010 (8) BCLR
823 (WC) (Hlope case), comment on the significance of the rule of law and the principle of
legality and rationality when considering the role of the Judicial Service Commission.
Provide a substantiated opinion on whether you believe that the Judicial Service
Commission arrived at the correct decision when it declared that it had no jurisdiction to
pursue the matter and that there was insufficient evidence to warrant continuing with the
inquiry into allegations of impropriety against Judge Hlope. (10)

In the Fedsure case (amongst others) it was held that the principle of legality must be complied
with, which entails that if the JSC is mandated to oversee the effective functioning of the judiciary
and if a legitimate complaint is brought to its attention concerning improper conduct by a judge,
then the JSC must take that complaint seriously (particularly if it is the Chief Justice along with the
other 10 judges of the Constitutional Court who have made the complaint because it is absolutely
impossible that those judges would have made an unsubstantiated or illegitimate complaint) and
investigate it fully. The JSC simply closed the case without ever even calling Judge Hlophe to
present his version of events. In this regard too, the principle of rationality entails that there must
be some logical connection between what the JSC was tasked with doing (determining whether
Judge Hlophe was guilty of gross misconduct) and the conclusion that they reached. There is no
rational relationship between these two because the JSC simply disregarded the complaint lodged
by the Constitutional Court judges even though it contained ample evidence of the alleged
misconduct. This then ties in with the extremely important principle of the rule of law.

The rule of law means that if the law states a specific thing, then it must be complied with. The rule
of law also means that no one is above the law. The impression is certainly created in the way that
the JSC has gone about dealing with this matter that Judge Hlophe is "untouchable" because no
serious attempt was made to investigate the allegations against him. In fact, the gravity of the
situation is compounded by the fact that we are now exactly 7 years down the line since Judge
Hlophe allegedly tried to improperly influence the Constitutional Court judges, yet to date, nothing
has happened, despite the fact that every few months the Judicial Service Commission says that it
"is about to open the matter once again, using the procedure that has now been created by the
Judicial Service Commission Amendment Act”, which is that a judicial misconduct tribunal has
been set up.

It is thus exceedingly important that if the Constitution states that the procedure for doing certain
things is set out, then that procedure must be followed to the letter. What kind of a message will
be sent out to the public if the Judicial Service Commission itself does not even follow the law?

The JSC did not arrive at the correct decision because their failure to follow the procedure set
down defies natural law principles, such as audi alteram partem (both sides must be heard) and
that justice must not only be seen to be done, but must actually be done, particularly since the
independence of the judiciary is so vital for the protection of our constitutional democracy. [20]

QUESTION 5

5.1 The Cape Town Municipality recently passed a by-law to the effect that refuse removal
will take place once a month, as opposed to the current once-a-week removal. The
municipality stated that the reason for this was the rising fuel price and other pressures on
the budget that had not been factored in. Refuse removal is a functional area listed in Part
B of Schedule 5 of the Constitution.

Residents in the areas affected are upset, since the long period between removal days is
causing a huge build-up of refuse. The build-up attracts maggots, flies and other
undesirable insects, thus creating an unhygienic environment with the potential of
spreading diseases.
The national executive is alarmed at the passing of this by-law, as it believes that refuse
removal at longer than weekly intervals creates serious health risks for the public and that
it amounts to a violation of the right to a clean environment. The cabinet therefore drafts a
Bill which is passed by Parliament in terms of section 76(1) of the Constitution. This Act
provides for refuse to be removed once a week, notwithstanding the provisions of any by-
laws. The Cape Town Municipality wishes to challenge the legislation on the basis that it is
unconstitutional. Provide a fully reasoned opinion in which you advise the Cape Town
Municipality on the likelihood of its challenge being successful.
(10)

The issue is whether Parliament can intervene and pass a law which contravenes/overrides the
municipal by-law?

The Constitution is the supreme law of the land and all law and all conduct must conform to it.
According to Chapter 3 of the Constitution, co-operative governance in South Africa is divided into
three spheres: national, provincial and local and power is divided between them, but it is
permissible for one of the spheres to override the decision of another if the Constitution permits it
if this is necessary to resolve a conflict of laws between two spheres.

There is a stipulated method of resolving conflicts, depending on whether competencies have

been conferred exclusively or concurrently, which is as follows:

a. Exclusive competencies – listed in schedule 5. Conflict resolution – section 44(2) applies.

b. Concurrent competencies – schedule 4. Section 146 applies

c. Residual – not listed in either – falls under national.

Municipalities have constitutional authority to pass laws in respect of matters listed in Schedule 5.
Importantly, this authority has also (concurrently) been conferred on the national and provincial
governments. Specific reference is made to sections 155(6) and 155(7) of the Constitution.
Section 155(6) obliges national and provincial governments to monitor and support local
government. Section 155(7) then goes further to state that national and provincial governments
have executive and legislative authority to see to the effective performance by municipalities of
their functions, subject to the provisions of section 44 of the Constitution. Section 44(2) (c) and (e)
are relevant in the specific facts presented in this question because (c) refers to the need to
maintain minimum standards, while (e) refers to the needs to ensure that no prejudice is caused to
other provinces.
An argument needs to be developed as to whether or not the national legislature has the right to
intervene and pass a law which overrides the municipal by-law. Reference must be made to
relevant case law, which is the case of Ex Parte President of RSA: In re Constitutionality of the
Liquor Bill 2000 (1) SA 732 (CC). In this case the Constitutional Court held that the scope and
ambit of the matters set out in Schedule 4 and Schedule 5 of the Constitution must be interpreted
in light of the model of government adopted by the Constitution and the manner in which the
Constitution allocates power to the different spheres. As such, reference should be made to the
fact that the local sphere has the right to enact laws because it has been conferred original
constitutional powers in order to regulate its own affairs. However, this is subject to section 44.

Students need to apply the law to the facts by invoking section 44(c) and (e) which would require
that the national legislature intervenes because of the very harmful consequences which will
invariably ensue due to the refuse only being removed once a month instead of one a week.
There is no doubt that refuse lying around for a month will cause pollution of the air and
waterways and it is quite possible that this pollution will be spread to other provinces through such
waterways. There is an extremely high chance of disease arising as a result of the decision not to
remove refuse weekly.

Reference could also be made to the case of Executive Council of the Western Cape Legislature v
President of the RSA 1995 (4) SA 877 (CC) in order to illustrate the mutually-supportive
relationship between the spheres of government.

Therefore, the students must conclude by indicating whether the national government has the right
to intervene and pass the national legislation, or not. It is also advisable to include mention of the
case of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and
Others, where it was held that while the national government is entitled to pass laws regulating the
local government matters in Schedule 5, they are not entitled to pass laws giving themselves the
power to administer or implement those laws; the municipalities themselves must exercise the
power to do that. This gives meaningful effect to what was stated in the case of City of Cape Town
v Robertson, which is that local government has original constitutional powers and remains an
independent sphere, thus it should be entitled to decide how it will administer or implement a law
that has been passed by the national legislature but that is imposed on the local sphere.

5.2 Two ratepayers, Simon and Thandi, live in the Durban area. They approach you with the
following problem: Parliament has enacted section 21 of the Local Government
Amendment Act which has a direct impact on the general valuation of property in the
Durban area, and the rates based on those valuations. Simon and Thandi indicate that they
had no knowledge that such an enactment had been proposed, nor were they given an
opportunity to express their views on the said Act prior to it coming into operation.
You are required to advise Simon and Thandi on whether they can challenge the
constitutionality of the said Act, and, if so, on what basis such a challenge can be brought.
To answer this question, you have to determine whether parliament is sovereign under the
new dispensation. If parliament is not sovereign, then you must determine the status of the
local sphere of government under the 1996 Constitution. You also need to determine the
mechanisms that are in place to assist the local sphere of government in achieving its full
potential. It is imperative that you refer to the Robertson case in your answer.
(10)

[20]

One option is as follows: a starting point would be to state that in terms of the Robertson case, the
local sphere (municipality) has the independence and autonomy to regulate its own affairs,
especially to ensure the provision of services to communities in a sustainable manner in terms of
section 152(1) of the Constitution. You could refer to Fedsure here to highlight that whatever
decision it is that the municipality is taking, it must always act rationally and in good faith and in
accordance with the principle of legality – meaning that it is constrained to only do what it is
permitted to do in terms of Part B of Schedules 4 and 5. Equally, if the municipality has failed to
perform a certain act (such as determine an appropriate rate of property tax), it has not acted
rationally and in good faith or in terms of the principle of legality, because the Constitution obliges
the municipality to be proactive in pursuit of ensuring the best interests of the community over
which it is responsible. Your premise here might be that Daniel and Pumi claim that the new law is
unconstitutional because the national sphere has usurped the local sphere’s area of functional
competence because the local sphere is responsible for “public works only in respect of the needs
of municipalities in the discharge of their responsibilities to administer functions specifically
assigned to them under this Constitution or any other law“ as per Part B of Schedule 4 of the
Constitution, which conceivably includes the raising of taxes so that the local government can
discharge their responsibilities to ensure the provision of services to communities in a sustainable
manner. It is worth emphasizing that Daniel and Pumi’s claim is based on the fact that Parliament
is no longer supreme, but the Constitution is now supreme and all spheres of government are
equal and have original Constitutional powers to regulate their own affairs and they should co-
operate with each other. However, since you are asked to assess the likelihood of Daniel and
Pumi’s claim succeeding, you will have to ascertain whether Daniel and Pumi’s interpretation of
the local government’s competence in Part B of Schedule 4 is correct. Since the raising of
property taxes is not specifically mentioned, you would need to engage in an analysis known as
the “bottom-up method of determining the scope and ambit of the matters set out in Schedule 4
and Schedule 5”. It would be beneficial to rely on the Liquor Bill case and the City of
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others case, to
reach your conclusion. You would have to argue by analogy, using the “well-known meaning”
attributed to “property taxes”. Using that same type of thinking you will invariably come to a
conclusion that the national government was well-within their right to enact this new law because
the national government has the legislative authority to “see to the effective performance by
municipalities of their functions” and since budgetary aspects are usually not open to public
discussion, the law is constitutional and Daniel and Pumi’s claim has no merit and no prospects of
success.

An alternative (and equally strong) argument is obviously to conceptualise Daniel and Pumi’s
claim as one of a failure of the national government to allow public participation in the enactment
of laws which will affect those at the local government level since the national government is
deciding the rate of property taxes for, amongst others, the Durban area while the national
government has no idea what the specific needs of this local government area is and instead, it is
the municipality under which Durban falls which is obliged to manage its administration and
budgeting processes to promote social and economic development of the community, yet the
national sphere is imposing itself. Using the Doctors for Life case as your authority, you would
have to convincingly argue that the law is unconstitutional and must be declared invalid because
Daniel and Pumi (and other similarly situated persons) had absolutely no knowledge of the
proposed law thus it was brought into effect without following the correct processes and
procedures. In this instance Daniel and Pumi’s claim would have merit and very good prospects of
success because the law is indeed unconstitutional due to the failure to provide for public
participation.

What the Merafong case has revealed to us is that genuine public participation should occur. In
other words, mere lip-service should not be paid to important decisions which impact on how we
will be governed. Substantive principles of public governance cannot be developed if public
participation is a mere sham or a façade. In the Merafong case, even though a consultative
process had been followed whereby the community was allowed to air their views, the opinions of
the community were blatantly disregarded. The majority opposed the Constitutional Amendment
which would relocate Merafong municipality to the North West province from Gauteng, yet the
legislature brought the law into force regardless of the dissatisfaction. As a direct result of the
failure to give meaningful effect to public participation, the Khutsong township of Merafong
“became ‘ungovernable’ and resembled a war zone as residents refused to accept the decision to
relocate the municipality”. Therefore, the conclusion is that public participation is essential, but it
must be real public participation and not merely formalistic thus giving the impression that it is
taking place whereas it is not in reality.

To my mind there is even a third option when answering this question and this is by using the
substantial measure test or the pith and substance test for Bills. Obviously the Local Government
Amendment Act will have an effect on the provinces within which the municipalities are situated,
thus it is important to determine whether the law was appropriately tagged as a section 76 Bill or a
section 75 Bill. Since there is invariably an effect on the provinces with the adoption of this
legislation, it should have been tagged as a section 76 Bill whereby the provinces would have
been informed of the proposed law and been afforded an opportunity to debate it. This argument
will be quite similar to the first argument that I offered (above) because in terms of the pith and
substance test, the Bill is considered to determine the extent to which it substantially affects
functional areas listed in Schedule 4. The more it affects the interests, concerns and capacities of
the provinces, the more say the provinces should have on its content. Thus the provinces should
have made an effort to notify each of the municipalities of the proposed legislation so that
representations could be made before the law was enacted. Reference to the Doctors for Life and
Merafong cases would also be appropriate here. [20]

QUESTION 2

2.1 Loud Speaker is a member of the Talk-a-Lot political party. During one of the parliamentary
sessions, she became so enraged with the conduct of members of other political parties that she
accused certain members of the Freak-a-Zoid party of being spies and criminals. Pursuant to her
outburst, she was suspended for 15 days by Parliament. Loud Speaker is furious about her
suspension and claims that Parliament has violated a number of her fundamental rights. You have
been approached by Loud Speaker for advice. With reference to the provisions of the Constitution
and applicable case law, advise Loud Speaker on the following:

a) What are the privileges of Members of Parliament and how are these privileges regulated?
(7)

Parliamentary privileges are the powers and privileges enjoyed by members of Parliament that
enable them to perform their functions without hindrance (external interference). Privileges are
stipulated in section 57(1) of the Constitution and include (1) the privilege of Parliament to punish
persons for contempt and to determine its own procedures; (2) the freedom of members to say
anything in Parliament, without having to fear that they will be held liable in a Court of law; (3)
Parliamentary privileges under the 1996 Constitution. The particulars of the privileges provided for
in the Constitution are regulated by the Powers and Privileges of Parliament and Provincial
Legislation Act 94 of 2004.

The National Assembly is competent to determine and control its own internal arrangements,
proceedings and procedures, and to make rules and orders concerning its business, with due
regard to representative and participatory democracy, accountability, transparency and public
involvement. In particular, members of the National Assembly are guaranteed freedom of speech
in the Assembly and its committees, provided that they adhere to the internal rules of debate. For
example, they are not allowed to use offensive or unbecoming language (such as the statement by
EFF MP Julius Malema on 19 June 2014 when he said that “the ANC murdered Marikana
miners”). Members of Parliament thus enjoy absolute freedom of speech and are further exempt
from civil or criminal liability for anything they have said or produced before the Assembly or its
committees.

Parliament and its committees are competent to summon persons to give evidence and submit
documents (in terms of sections 14-17 of the Privileges Act 4 of 2004). Parliament is entitled to
enforce its own internal disciplinary measures for contempt of Parliament and other infringements
of the Act; failure to comply with an order or decision of Parliament; failure to submit documents
upon request; perjury; et cetera.

In addition, Members of Parliament are not allowed to vote on any matter in which they have a
financial interest.

b) Are parliamentary privileges subject to judicial review or not? (8)

Yes, the exercise of parliamentary privilege is subject to the constitutional review power of the
Courts. This was established in the case of De Lille v Speaker of the National Assembly 1998 (7)
BCLR 916 (C). In this case, Patricia de Lille, a PAC politician (as she then was) was suspended
for 15 days from the National Assembly after having made allegations that certain ANC officials
had been “spies for the apartheid regime”. De Lille challenged the decision of the National
Assembly in Court on the basis that she had not had a fair hearing and that several of her
constitutional rights had been infringed.

The Speaker of Parliament invoked section 5 of the Powers and Privileges of Parliament Act, as
read with section 57(1) of the Constitution which allows Parliament to determine and control its
internal arrangements, arguing that Parliament has the right to control its own affairs and this is
not reviewable since it is a privilege of Parliament.

The Court held, however, that the exercise of parliamentary privilege is subject to the Constitution
(at paragraph 25 of the judgment) and went on to find that the power to determine and control its
internal arrangements does not embrace the power to suspend a member as a punishment for
contempt (paragraph 27). After considering a number of inter-related and relevant constitutional
provisions concerning the multi-party system of democratic government in South Africa, Hlophe J
held that a suspension of a member of the Assembly from Parliament for contempt is not
consistent with the requirements of representative democracy. That would be a punishment which
is calculated to penalise not only the member in contempt, but also his or her party and those of
the electorate who voted for that party who are entitled to be represented in the Assembly by their
proportionate number of representatives.

At paragraphs 33 to 34, Hlophe J concluded thus: “the nature and exercise of Parliamentary
privilege must be consonant with the Constitution … [and] is not immune from judicial review”. He
went on to hold that judicial review does not constitute an infringement of Parliament’s right to
control its own procedures and discipline its members and nor does it violate the separation of
powers doctrine, but it obliges a court to intervene/interfere where Parliament has improperly
exercised that privilege and has acted mala fide or capriciously and in defiance of the
constitutionally inherent rights of a member.

Consequently, the judge found that Ms de Lille’s suspension constituted an unjustified

infringement of her constitutional rights to freedom of speech (section 16 and 58(1)), just
administrative action (section 33) and access to Courts (section 34). He went on to confirm that
Parliament is no longer supreme, but must ensure that it acts in conformity with Constitutional
precepts.

2.2 What do you understand by the term co-operative government in the constitutional sense?
(5)

• Cooperative government refers to the system of government that indicates the framework
within which the relations between the three spheres of government (National; Provincial and
Local) must be conducted. According to section 41(1) (h) of the Constitution, the three spheres of
government must cooperate with one another in mutual trust and good faith.

• State authority is therefore divided into national, provincial and local spheres which are
distinctive, interdependent and interrelated. (section 40 of the Constitution).

• In the Certification judgment the Constitutional Court emphasized that the Constitutional
system chosen by the Constitutional Assembly is one of co-operative government in which powers
in a number of functional areas are allocated concurrently to the national and the provincial levels
of government.

• The principles of cooperative government and intergovernmental relations are set out in
section 41 of the Constitution. Students should also be credited for giving examples of these
principles.

[20]

QUESTION 3
3.1 In Ex Parte President of the Republic of South Africa: In Re Constitutionality of the Liquor
Bill 2000 (1) BCLR 1 (CC), the court dealt with, among other things, the refusal of the then
President (Nelson Mandela) to assent to the Liquor Bill passed by the National Assembly due to
his reservations about its constitutionality. In paragraph 11, the Court held that:

Section 79(5) requires a decision from this Court as to whether ‘the Bill is constitutional’. In
terms of section 167(4)(b), only the Constitutional Court may decide on the constitutionality of any
parliamentary Bill, but may do so only in the circumstances anticipated in section 79. The general
powers of the courts in dealing with constitutional matters are set out in section 172. That section
requires that a Court when deciding a constitutional matter within its power ‘must declare that any
law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency’.
Since the Bill has not yet been enacted, it is clearly not a ‘law’ as envisaged by section 172(1).
Moreover, since the Bill as yet lacks legal force, the remedy section 172 envisages — a
declaration of invalidity — is plainly inappropriate. It follows that the provisions of section 172 are
not directly helpful in guiding the Court as to its role in the section 79 referral procedure.

With reference to this case and relevant sections of the Constitution, critically discuss the
circumstances in which the President is allowed to refer a Bill to the Constitutional Court for a
decision on its constitutionality, and the scope of the court’s power in this regard. (8)

The President may, pursuant to section 79 (4) of the Constitution, refer the Bill to the
Constitutional Court for a decision on its constitutionality only if his or her reservations concerning
the constitutionality of the bill are not fully accommodated by Parliament. If the President has no
reservations concerning the constitutionality of the Bill, or if his reservations have been fully
accommodated by Parliament, the referral would be incompetent. In short, the presidential power
is limited under s 79 (4) (b) to the power to refer a Bill to the Constitutional Court “for a decision on
its constitutionality” with respect to his reservations. The general powers of the courts in dealing
with constitutional matters are set out in section 172. The Constitutional Court need only consider
reservations expressly specified by the president regarding the Bills constitutionality; it does not
have to consider the Bill in its entirety. In short, the Court considers only the President’s
reservations. Whether it may ever be appropriate for the Court upon a presidential referral to
consider other provisions which are manifestly unconstitutional, but which are not included in the
President’s reservations, was not decided upon.

3.2 The Constitution prescribes different procedures for Bills amending the Constitution,
ordinary Bills not affecting provinces, ordinary Bills affecting the provinces and Money Bills. In
Tongoane and Others v National Minister for Agriculture and Land Affairs and Others 2010 (6) SA
214 CC, 45 the Constitutional Court held that a Bill must first be classified into one of these
categories to determine which procedure should be followed in enacting the Bill. In light of the
above statement and with reference to relevant sections of the Constitution:

a) briefly discuss the majorities and special procedures required to amend different parts and
provisions of the Constitution. (4)

Section 74 of the Constitution governs bills amending the Constitution and stipulates that a bill
passed by at least 75% of the members of the National Assembly and six provinces from the
National Council of Provinces is required only when amending section 1 and section 74(1) of the
Constitution. Chapter 2 of the Constitution may be amended by a two-thirds majority of the
National Assembly and at least six of the provinces, as provided in section 74(2). Any other
provision of the Constitution may be amended by a Bill passed by the National Assembly, with a
supporting vote of at least two thirds of its members; and the National Council of Provinces with a
supporting vote of at least six provinces.

b) critically discuss the purpose and importance of tagging a Bill in the correct manner. (4)

Sections 75 and 76 of the Constitution deal with the adoption of ordinary Bills, that is, Bills that do
not amend the Constitution. Section 75 sets out the procedure for the adoption of ordinary Bills not
affecting the provinces, while section 76 deals with ordinary Bills affecting the provinces. It is
important to tag Bills correctly because failure to do so may result in the Bill in question not
becoming law. For instance, if a Bill affecting Provinces is improperly tagged as one not affecting
provinces, such a Bill will not have been properly enacted and resultantly not become law.

c) with reference to provisions of the Constitution and case law, fully explain whether an
ordinary individual member of the National Assembly, who is not a Cabinet member, can
introduce a Bill in the National Assembly. (4)

In Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 (6) SA 588 (CC),
the Constitutional Court declared invalid the Rules of the National Assembly which required a
member of the National Assembly to obtain permission from the National Assembly to initiate and
introduce Bills. [20]

QUESTION 4
4.1 Since 1996 the Judicial Service Commission plays a major role in the selection and
appointment of judges. However, on a number of occasions the JSC has been a subject of
litigation, like in the case of Acting Chairperson: Judicial Service Commission and Others v
Premier of the Western Cape Province 2011 (3) SA 538 (SCA) and Freedom Under Law v Acting
Chairperson: Judicial Service Commission and Others 2011 (3) SA 549 (SCA). With reference to
the above-mentioned cases and relevant provisions of the Constitution, critically discuss the
extent, if any, to which the JSC has contributed towards:

a) the independence of the judiciary (4)

Independence of the judiciary requires that judges must be free to decide matters placed before
them in accordance with the assessment of facts in relation to the relevant law without any
interference whatsoever from other bodies, persons or parties. Although the 1996 Constitution
does not provide a clear definition of “judicial independence”, this principle is expressly entrenched
in the Constitution. Section 165 of the Constitution provides that the judicial authority of the
Republic is vested in the courts, which are independent and subject only to the Constitution and
the law, which they must apply without fear, favour or prejudice. No person or organ of state can
interfere with the functioning of the courts.

b) the transformation of the judiciary (4)

Yes, the case of Helen Suzman v Foundation v Judicial Service Commission and Others
(8647/2013) [2014] ZAWCHC 136 (5 September 2014) is an example of this. In this case, the
Judicial Service Commission interviewed Advocate Jeremy Gauntlett to fill a vacancy in the
Constitutional Court. Gauntlett is known as a great legal mind, with extensive experience, albeit
that he is “ascerbic”. Notwithstanding the fact that section 174(1) of the Constitution merely
mentions that the candidate must be suitably qualified and fit and proper, it appeared as though
the only reason why Jeremy Gauntlett’s name was not submitted to the President as a nominee
for the Constitutional Court bench is because he is a white male. As the Helen Suzman
Foundation puts it “there is a growing perception that talented candidates for judicial appointment
and advancement are being overlooked for reasons that are not clear or explicit”. However, it is
quite conceivable that the Judicial Service Commission refused to recommend Jeremy Gauntlett
for appointment to the bench because the Constitution explicitly states that the judiciary must
reflect the gender and racial profile of the country and South Africa is already heavily criticized for
the number of white, male judges on the bench.

4.2 Is the selection of judges by the JSC subject to judicial review? Briefly explain. (4)
Yes, the case of Justice Alliance of South Africa v President of Republic of South Africa and
Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for
Applied Legal Studies and Another v President of Republic of South Africa and Others 2011 is a
case in point. In this case, President Zuma attempted to renew the tenure of Chief Justice Sandile
Ngcobo without having regard to the fact that the Judicial Service Commission had not yet
finalised its interviews and provide the President with recommendations for his consideration. Ex
post facto consultation is not acceptable when making decisions concerning the appointment of
the Chief Justice.

Given that South Africa is premised on constitutional supremacy and the rule of law, if the
Constitution or any other law makes reference to procedures and criteria that must be followed
and adhered to in giving meaningful effect to the Constitution, then these provisions must be
complied with, failing which, the judiciary is permitted to review such conduct.

4.3 What do you understand by the principle of separation of powers? Discuss fully. In your
discussion, indicate with reference to relevant case law whether there is an explicit reference or
mention of the separation of powers in the Constitution of South Africa. (8)

Simply put, separation of powers is the distribution of political authority that provides a system of
checks and balances to ensure that no single branch becomes too powerful or infringes on the
rights of the citizens. The doctrine entails that the freedom of citizens of a state can be ensured
only if a concentration of power, which can lead to abuse, is prevented by a division of government
authority into legislative, executive and judicial authority, and each are exercised by different
government bodies.

In theory, the distinction between the three branches means that the government body or bodies
responsible for the enactment of rules of law shall not also be charged with their execution or with
judicial decisions concerning them. The executive authority is not supposed to enact law or to
administer justice, and the judicial authority should not enact or execute laws. Therefore, the
legislature drafts, amends, repeals laws that govern the relationship between the state and
individuals and between individuals themselves. The executive is responsible for implementing the
laws that have been passed by the legislature. The executive also formulates policy but then
leaves it to the legislature to give effect to those policies by passing laws. The judiciary is
responsible for arbitrating disputes about the meaning of the laws or allegations that the laws have
not been implemented properly. It is crucial that the 3 organs do not intrude into the domain of
another organ, unless the Constitution allows them to do so in order to ensure that the Constitution
will not be undermined/violated. However, this must be understood with reference to the notion of
checks and balances. Accordingly, the separation of powers doctrine is epitomised by the
allocation of defined functions, competencies and responsibilities to the principal organs of state
that takes the form of an “institutional, procedural and structural division of public power” with a
view towards achieving protection of fundamental rights in society. This is particularly true when
one has regard to South Africa’s transformative constitutional democracy.

It is not expressly mentioned anywhere in the Constitution, but we know it exists because it has
been specifically referred to in the Certification case; as well as De Lange v Smuts NO; and
Glenister. In De Lange v Smuts NO, the Court held:

over time our courts will develop a distinctively South African model of separation of powers, one
that fits the particular system of government provided for in the Constitution and that reflects a
delicate balancing, informed both by South Africa’s history and its new dispensation, between the
need, on the one hand, to control government by separating powers and enforcing checks and
balances and, on the other, to avoid diffusing power so completely that the government is unable
to take timely measures in the public interest.

In the South African context, the doctrine of separation of powers does not require a strict
separation between the judiciary and the legislature and executive because it requires the judiciary
to check whether the other branches comply with the law and exercise their authority in conformity
with the Constitution (known as judicial review). The result is that the judiciary should not interfere
in the political functions and processes of other branches of government unless to do so is
mandated by the Constitution (such as where the executive is manifestly failing to comply with its
constitutional obligation to provide anti-retroviral treatment, or education, or housing, etc.).
Accordingly, the division of powers is not strictly enforced: if it appears that one sphere of
government is failing to comply with its constitutional obligations the judiciary must intervene to
uphold the Constitution.

In Glenister (I), the Court held:

separation of powers is “axiomatic” in the Constitution (albeit not expressly stated); it is a

necessary component of the doctrine of the separation of powers that courts have a constitutional
obligation to ensure that the exercise of power by other branches of government occurs within
constitutional bounds. [However] it should not be assumed that the Parliament will not correct the
potentially unconstitutional provisions … the court may intervene in the legislative process only if
no effective remedy would be available to the applicant once the law is passed and the harm
would be material and irreversible … But even in these circumstances, courts must observe the
limits of their powers.

Using this case, it is easy to see that when a court is undertaking the process of judicially
reviewing any legislation or executive conduct, the judges carefully inquire into the constitutionality
of the legislation or the conduct of the executive, but cannot (and do not) simply substitute their
own views for those of the legislature or executive (unless they have no choice, like what
happened in the Treatment Action Campaign case). The judiciary upholds the separation of
powers doctrine and defers to the authority and expertise of the legislature or executive who is
then required to draft a new law which conforms to the Constitution or to rectify the irrational and
unconstitutional executive decision.

The Glenister case relates to the disbanding of the Scorpions and the creation of the Hawks
through the enactment of the National Prosecuting Authority Amendment Act and the South
African Police Service Amendment Act, which were both declared unconstitutional for the fact that
the Hawks were not sufficiently independent and that the state had therefore failed to comply with
its obligations to respect, protect, promote and fulfill the rights in the Bill of Rights as required by
section 7(2) of the Constitution. The Constitutional Court therefore held that what was required
was to create an anti-corruption unit with the necessary independence to be protected from
potential political pressure. This meant that the state could not create a body that it claimed was
independent but that did not appear independent to the reasonable member of the
public. Secondly, such a body had to be insulated from “a degree of management by political
actors that threatens imminently to stifle the independent functioning and operations of the unit”
(although this did not mean that such a body had to be insulated from political accountability) and
thirdly, the Hawks are “ordinary” police officials who enjoyed little if any special job security, which
severely undermines their independence. Fourthly (and most importantly), there was the risk of
political and executive influence over the Hawks because a Ministerial Committee, composed of at
least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice are required to
determine policy guidelines in respect of the functioning of the Hawks (and quite possibly,
therefore, decide which cases should or should not be investigated by the Hawks (think here of the
cases against Jackie Selebi; Bheki Cele, etc. which had been successfully investigated and
prosecuted by the Scorpions)). The result of all of this is that the judiciary did not re-write the law
to create an independent crime-fighting institution. Instead, it left that up to the legislature to
create a completely new institution with far more safeguards to secure its independence.

The Treatment Action Campaign case of 2002 is another possible example of when the judiciary is
permitted to engage in executive decision-making because if it did not, thousands of babies would
have been born HIV positive whereas this could have been prevented if the Department of Health
had shown sufficient political willingness to provide nevirapine (the antiretroviral treatment which
would prevent mother-to-child transmission of HIV). The Department of Health had repeatedly
made excuses for why it could not provide antiretroviral treatment. The excuses ranged from
inadequate hospital staff to administer the treatment; insufficient funds to purchase the medication;
the fact that the safety and efficacy of the treatment had not been scientifically proven, etc. The
Treatment Action Campaign was able to convince the Court that all of these excuses were invalid.
The Indian government which produces nevirapine had donated over 5 million of the tablets to the
South African government. All it took was a single dose of the drug to dramatically reduce the
incidence of mother-to-child transmission of HIV, thus it was not labour intensive on the part of the
hospital staff and a variety of tests conducted all over the world had shown that it was a very
effective medication. In light of this compelling evidence, the judiciary was forced to assume the
role of the executive by deciding that the nevirapine should “immediately” be provided to all
pregnant women who were HIV positive. Even though that type of decision is ordinarily made by
the executive because they have the knowledge and expertise about whether they are able to
perform that type of duty, in this instance where the executive was failing dismally and with no
good reason to provide nevirapine, the judiciary stepped into the role of the executive. While it
may appear to be a violation of the separation of powers doctrine, it actually is not because the
Constitution states that everyone has the right to health care.
Another possible example to illustrate how the separation of powers doctrine operates in South
Africa is the case of Fourie v Minister of Home Affairs and Another (in conjunction with the Lesbian
and Gay Equality Project case).

In the Fourie case, Ms Marié Fourie and Ms Cecelia Bonthuys argued that the law excluded them
from publicly celebrating their love and commitment to each other in marriage. They contend that
the exclusion comes from the common law definition of marriage which states that “marriage in
South Africa is a union of one man with one woman, to the exclusion, while it lasts, of all
others”. The case raised the question whether the fact that no provision is made for the
applicants, and all those in like situation, to marry each other, amounts to denial of equal
protection of the law and unfair discrimination by the state against them because of their sexual
orientation, contrary to the provision of the Constitution guaranteeing the right to equality and
dignity. Meanwhile, the case of Lesbian and Gay Equality Project and Eighteen Others v Minister
of Home Affairs and Others was set down to be heard in the High Court and was lodged as a
challenge to the provisions of the Marriage Act. The Applicants then applied for direct access to
the Constitutional Court so that these two cases could be heard simultaneously.

In delivering judgment, the Constitutional Court held that it had in five consecutive decisions
highlighted that South Africa has a multitude of family formations that are evolving rapidly as our
society develops, so that it is inappropriate to entrench any particular form as the only socially and
legally acceptable one; there was an imperative constitutional need to acknowledge the long
history in our country and abroad of marginalisation and persecution of gays and lesbians
although a number of breakthroughs had been made in particular areas; and there was no
comprehensive legal regulation of the family law rights of gays and lesbians. The Court
unanimously found that the common law and section 30(1) of the Marriage Act were inconsistent
with sections 9(1) and 9(3) [equality] and 10 [dignity] of the Constitution to the extent that the law
as it stood made no provision for same-sex couples to enjoy the status, entitlements and
responsibilities they accord to heterosexual couples. The Court held that a new Act would have to
be formulated to give legal recognition to all marriages, including those of same and opposite-sex
couples. In doing so, the court was sensitive to the separation of powers doctrine because instead
of imposing itself and writing a law to govern marriages, it gave Parliament one year in which to
cure the defect by drafting the Civil Unions Act.

Over the course of 2006, a Bill was drafted governing civil unions. The Bill became law on 28
November 2006 and it permits the “voluntary union of two persons who are both 18 years of age
or older, which is solemnized and registered by either a marriage or a civil partnership, to the
exclusion, while it lasts, of all others”. In this case the court did manage to strike an appropriate
balance between upholding the Constitution and respecting the functions and powers of the
legislature because the court did not dictate to the legislature exactly what the law should state,
but it merely provided guidelines confirming that whatever law was passed, it had ensure the
human rights of all South Africans, irrespective of their sexual orientation. [20]

QUESTION 5
 5.1 The Durban Municipality recently passed a by-law to the effect that refuse removal will take
place once a month, as opposed to the current once-a-week removal. The municipality
stated that the reason for this was the rising fuel price and other pressures on the budget
that had not been factored in. Refuse removal is a functional area listed in Part B of
Schedule 5 of the Constitution.

Residents in the area affected are upset, since the long period between removal days is causing a
huge build-up of refuse. The build-up attracts maggots, flies and other undesirable insects, thus
creating an unhygienic environment with the potential of spreading diseases.

The national executive is alarmed at the passing of this by-law, as it believes that refuse removal
at longer than weekly intervals creates serious health risks for the public and that it amounts to a
violation of the right to a clean environment. The cabinet therefore drafts a Bill which is passed by
Parliament in terms of section 76(1) of the Constitution. This Act provides for refuse to be removed
once a week, notwithstanding the provisions of any by-laws. The Durban Municipality wishes to
challenge the legislation on the basis that it is unconstitutional.

Provide a fully reasoned opinion in which you advise the Durban Municipality on the likelihood of
its challenge being successful. (12)

Issue

The issue is whether Parliament can intervene and pass a law which will prevail over the municipal
by-law?

Relevant law / rule of law

The Constitution is the supreme law of the land and all law and all conduct must conform to it.

According to Chapter 3 of the Constitution, co-operative governance in South Africa is divided into
three spheres: national, provincial and local and power is divided between them, but it is
permissible for one of the spheres to override the decision of another if the Constitution permits it if
this is necessary to resolve a conflict of laws between two spheres.
There is a stipulated method of resolving conflicts, depending on whether competencies have
been conferred exclusively or concurrently, which is as follows:

a. Exclusive competencies – listed in schedule 5. Conflict resolution – section 44(2) applies.

b. Concurrent competencies – schedule 4. Section 146 applies

c. Residual – not listed in either – falls under national.

Municipalities have original constitutional authority to pass laws in respect of matters listed in
Schedule 5, Part B. The relevant function referred to here is “refuse removal, refuse dumps and
solid waste disposal”. Specific reference is made to sections 155(6) and 155(7) of the Constitution.
Section 155(6) obliges national and provincial governments to monitor and support local
government. Section 155(7) then goes further to state that national and provincial governments
have executive and legislative authority to see to the effective performance by municipalities of
their functions, subject to the provisions of section 44 of the Constitution.

‘Pith and substance test’

Section 44(2) (c), (d) and (e) are relevant in the specific facts presented in this question because
(c) refers to the need to maintain essential national standards, (d) refers to the establishment of
minimum standards required for the rendering of services, while (e) refers to the needs to ensure
that no prejudice is caused to other provinces.

Ex Parte President of RSA: In re Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC).

City of Cape Town v Robertson

Executive Council of the Western Cape Legislature v President of the RSA 1995 (4) SA 877 (CC)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others

Executive Council of the Western Cape Legislature v President of the RSA 1995 (4) SA 877 (CC)
Application

An argument needs to be developed as to whether or not the national legislature has the right to
intervene and pass a law which overrides the municipal by-law. Reference must be made to
relevant case law, which is the case of Ex Parte President of RSA: In re Constitutionality of the
Liquor Bill 2000 (1) SA 732 (CC). In this case the Constitutional Court held that the scope and
ambit of the matters set out in Schedule 4 and Schedule 5 of the Constitution must be interpreted
in light of the model of government adopted by the Constitution and the manner in which the
Constitution allocates power to the different spheres. As such, reference should be made to the
fact that the local sphere has the right to enact laws because it has been conferred original
constitutional powers in order to regulate its own affairs. However, this is subject to section 44.

Students need to apply the law to the facts by invoking section 44(c), (d) and (e) which would
require that the national legislature intervenes because of the very harmful consequences which
will invariably ensue due to the refuse only being removed once a month instead of one a week.
There is no doubt that refuse lying around for a month will cause pollution of the air and waterways
and it is quite possible that this pollution will be spread to other provinces through such waterways.
There is an extremely high chance of disease arising as a result of the decision not to remove
refuse weekly.

Reference could also be made to the case of Executive Council of the Western Cape Legislature v
President of the RSA 1995 (4) SA 877 (CC) in order to illustrate the mutually-supportive
relationship between the spheres of government.

Conclusion

Therefore, the students must conclude by indicating whether the national government has the right
to intervene and pass the national legislation, or not. It is also advisable to include mention of the
case of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and
Others, where it was held that while the national government is entitled to pass laws regulating the
local government matters in Schedule 5, they are not entitled to pass laws giving themselves the
power to administer or implement those laws; the municipalities themselves must exercise the
power to do that. This gives meaningful effect to what was stated in the case of City of Cape Town
v Robertson, which is that local government has original constitutional powers and remains an
independent sphere, thus it should be entitled to decide how it will administer or implement a law
that has been passed by the national legislature but that is imposed on the local sphere.

5.2 Section 89 of the 1996 Constitution provides for the removal of the President from his
office. According to this section, who has the power to remove the President? On what
grounds can the President be removed from office? Is there any other method provided for
 in the Constitution for the removal of the President from office? Explain fully with reference
to the provisions of the specific section of the Constitution and relevant case law. (8)

Section 89 regulates the removal of the President from office. Section 89(1) dictates that the
National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its
members, may remove the President from office only on the grounds of: (a) a serious violation of
the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office.
These are objective grounds and the National Assembly can only remove the President in this
manner on the basis of a finding that one or more of these grounds is present. This is also called
impeachment and has potentially serious consequences.

There is also another method by which the President can be removed from office. This occurs for
purely political reasons in terms of section 102(2) of the Constitution, but only if the National
Assembly, by a vote supported by a simple majority of its members, passes a motion of no
confidence in the President. If a vote of no confidence is instituted against the President, he/she
will have to resign. Following the Constitutional Court’s judgement in Mazibuko v Sisulu and
Another 2012, any member of the National Assembly can now propose a motion of no confidence
in the President and have it debated in the National Assembly.

[20]

1. With reference to relevant case law, including the case of Corruption Watch NPC & Others v
President of the Republic of South Africa; Nxasana v Corruption Watch NPC 2018 (10) BCLR
1179 (CC), distinguish between the Office of the Public Protector and the National Director of
Public Prosecutions. Your answer must:

a. Fully explain the mandates of these two institutions; (4)

Section 182 of the Constitution states that the Public Protector ‘has the power to investigate any conduct
in state affairs, or in the public administration in any sphere of government, that is alleged or suspected
to be improper or to result in any impropriety or prejudice’. This mandate includes investigating
corruption. 

Section 179(2) of the Constitution states that the NPA ‘has the power to institute criminal proceedings
on behalf of the state, and to carry out any necessary functions incidental to instituting criminal
proceedings’. 

b. Identify whether they fall within either the legislative, executive or judicial branches of
the state; and (4)

Neither fall within either the legislative, executive or judicial branches of the state. They are both
independent.  This is confirmed in the case of Corruption Watch v President of South Africa and
Nxasana in the case of the National Prosecuting Authority  and confirmed in the case of ABSA v Public
Protector (2018) and Economic Freedom Fighters v Speaker of the National Assembly 2016 in the case
of the Public Protector. 

c. Describe the status of the recommendations that each make. (7)

The decision to prosecute in the case of the National Prosecuting Authority is a final and binding
decisions UNLESS representations have been received from the accused person; the complainant; or
any other person whom the National Director of Public Prosecutions deems relevant, in which case, the
decision may be reviewed by the Director of Public Prosecutions.  The recent application by former
President Zuma to have the decision to prosecute him withdrawn is an example of this. 

In respect of the Public Protector, it was held in the case of Economic Freedom Fighters v
Speaker of the National Assembly (2016)  that the recommendations made by the Public
Protector are binding and enforceable  unless they are reviewed in a court of law. 

2. Critically discuss the similarities and differences between the Constitutional Court’s
decisions in the cases of: [1] Mazibuko Leader of the Opposition in the National Assembly v
Sisulu Speaker of the National Assembly and Another 2013 (6) SA 249 (CC) (27 August 2013);
[2] Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v
Speaker of the National Assembly 2016 (3) SA 580 (CC) (31 March 2016); and [3] United
Democratic Movement v Speaker of the National Assembly & Others (CCT89/17) [2017] ZACC
21 (22 June 2017). Your answer must refer to the specific provisions of the Constitution that
are relevant and how these
differ from each other in the cases discussed. (15)

Similarities Differences
All 3 cases dealt with the fundamental role of The main difference between these cases is
the National Assembly to hold the executive that in Mazibuko, the issue was that despite
accountable in terms of section 55 of the section 102(2) providing for a motion of no
Constitution  confidence to be brought against the
President, Chapter 12 of the Rules of the
National Assembly had contained a provision
that required permission to be granted by the
majority political party in Parliament prior to
such motion being tabled. These Rules were
declared invalid. 
All 3 cases were concerned with the Similarly, the issue in the UDM case is that
Presidency of former President Jacob Zuma although the Constitution is silent, in section
and the fact that the Speaker of the National 89 and 102 as to whether the vote should be
Assembly was conceivably “captured” in that conducted by secret ballot, the Speaker of the
he (Sisulu) and she (Mbete) were reluctant to National Assembly was not willing to make
direct the National Assembly to deliberate on that decision (seemingly because it could
a vote of no confidence (section 102(2)) or
have resulted in the motion succeeding). 
impeachment (section 89) of the President

In all 3 cases, the Court affirmed the important The essential difference between the cases is
role of the separation of powers doctrine and that the EFF case highlighted that it is not only
indicated its reluctance to interfere in the the National Assembly that is to hold the
power of the National Assembly to determine executive accountable, but the Public
its own internal arrangements, proceedings Protector has been specifically established to
and procedures, and to make rules and orders investigate any apparent malfeasance,
concerning its business as stipulated in corruption, or abuse of power perpetrated by
section 57 of the Constitution  the executive branch of the state and that
when the Public Protector submits this report
to the National Assembly, it is incumbent on
the National Assembly to thoroughly consider
the report and act on the
recommendations
All 3 cases were brought by political parties In terms of the particular provisions of the
represented in the National Assembly, which Constitution, the EFF case dealt with section
illustrates that we have a proportional 89 of the Constitution whereas the Mazibuko
representation electoral system and a and UDM cases concerned section 102 of the
multiparty democracy as per section 1 of the Constitution 
Constitution 

3. “The President is a constitutional being. In the Constitution the President exists, moves and
has his being”. In the light of these compelling words, explain the power (and the limits on
that power) conferred on the President to shuffle his cabinet in terms of section 91 of the
Constitution. It is imperative that you rely on relevant case law to substantiate your answer.
(8)

Even though the Constitution grants the exclusive right to the President to appoint and dismiss members of
his Cabinet in a reshuffle, the rule of law dictates that even the President must comply with the Constitution
and that the government and all those in power must have authority provided by law for everything they do.
 Since South Africa’s rule of law is to be understood in its broadest sense, it means that procedurally, the
President may not do whatever he wants, but must at all times ensure that he remains “accountable,
responsive and open” (as per s 1(d) of the Constitution).  The case of Certification of the Constitution of
the Republic of South Africa at para 116 is authority for the view that the President’s conduct is reviewable if
it in any way constitutes a violation of the Constitutional provisions. Thus, although Cabinet members are
political appointees who know that they can be hired and fired at the will of the President (see the case of
Masethla v President of the Republic of South Africa at para 228), inherent in the rule of law is the principle
of legality.  The essence of the principle of legality is rationality. Therefore, in the case of Democratic Alliance
v President of the Republic of South Africa, it was held that there must be a rational connection between the
decision made by the President and the information relied upon which prompted the President to make that
decision (see para 19 of the case).  In other words, the decision must not be arbitrary.

Given that the President allegedly relied on an Intelligence Report (para 35 of the case), which has never
been proven to contain reliable information, to reshuffle his Cabinet, it is not appropriate for the President to
have made such a far-reaching decision because it is not a rational decision.  As stated on page 199 of the
textbook, “the exercise of powers by members of the Cabinet [including the President] are clearly constrained
by the principle of legality and, as is implicit in the Constitution, the Cabinet members must act in good faith
and must not misconstrue their powers”. The President arguably misconstrued his powers when he removed
the Minister and Deputy Minister of Finance based on the Intelligence Report. 

Importantly, the President is obliged to exercise some of his functions “together with the other members of
the Cabinet” in terms of section 85(2) of the Constitution, especially since he should be sensitive to the
general public who voted for the political party that won the elections and who voted him into power. There
does not appear to have been any constructive discussion with the members of Cabinet concerning the
Cabinet reshuffle. Instead, the President seemingly made a unilateral decision and was publicly criticised for
it by some members of Cabinet.  For these reasons, the President was ordered to produce the record and
the reasons upon which were relied in shuffling cabinet so that a decision can be made as to the
constitutionality of the President’s conduct. 
4. Failure to comply with the rule of law invites a vortex of uncertainty and unpredictability. It is
detrimental to the effective functioning of the state if public officials can simply disobey or
seek to change the law when the law (rules) become inconvenient.

a. Illustrate your understanding of the rule of law by explaining the elements of which the
rule of law is composed; (5)

The rule of law is premised on the following principles/elements:

 the government/state must act in terms of pre-announced/clear and general rules 

 rules that are created, must be enforced, and disputes pertaining to such rules, are then adjudicated by
independent/impartial institutions (ie: courts) 
 no rights of people may be deprived/limited via arbitrary discretionary powers of the state 
 no one is above the law: all persons/institutions including the state must act in terms of powers granted
by law and comply with law 
 the state/others must act lawfully i.e. must comply with the law and law must comply with the legality
requirement. 

b. Discuss how the rule of law was violated in the case of Southern Africa Litigation
Centre v Minister of Justice and Constitutional Development 2015 (2) SA 1 (GP). (6)

The rule of law was found to have been violated because the government’s conduct was in breach of section
1 of the Constitution  and was unlawful  in that the government had not arrested Omar al-Bashir as soon
as he arrived in South Africa in July 2015. Thus, the Court made an order to compel the government to cause
President al-Bashir to be arrested and surrendered to the ICC.  Despite South Africa having ratified the
Rome Statute of the International Criminal Court  and adopting domestic implementing legislation,  the
government relied on a disingenuous argument that President al-Bashir enjoyed immunity in terms of
international customary law. To be sure, the domestic legislation compels South Africa to arrest persons who
may enjoy diplomatic immunity under customary international law but who are wanted by the International
Criminal Court for genocide, crimes against humanity and war crimes and to surrender such persons to the
International Criminal Court. South Africa has to do so, even under circumstances where we are actively
involved in promoting peace, stability and dialogue in those countries. 

c. Discuss how the rule of law was violated in Democratic Alliance v Minister of
International Relations and Cooperation ZAGPPHC (22 February 2017). (6)

On 19 October 2016, the national executive took a decision to withdraw from the Rome Statute.
On the same date, South Africa deposited a notice of withdrawal from the Rome Statute with the Secretary-
General of the United Nations. This is notwithstanding the fact that South Africa had signed the Rome Statute
on 17 July 1998 and ratified it on 27 September 2000. Shortly thereafter, in July 2002, national legislation,
appropriately named the ‘Implementation of the Rome Statute of the International Criminal Court Act 27 of
2002’, (Implementation Act), was promulgated, eradicating any ambiguity about South Africa’s intention to
comply with the Rome Statute (and therefore, the rule of law and the principle of legality).  What was clear
is that the government were seeking to change the rules of the game when they became inconvenient.

In finding the government’s conduct to indeed be invalid and unconstitutional, the Court held that
procedurally, the decision by the national executive to deliver the notice of withdrawal of South Africa from
the Rome Statute of the ICC without prior parliamentary approval is unconstitutional and invalid.  The
decision is also unconstitutional since it was not preceded by the repeal of the Implementation
Act.  Accordingly, the message being conveyed here is that the government should be held to account
(both internationally and domestically) if there is incongruence between the international and domestic
commitments that have been voluntarily entered into by way of ratification and implementation of treaties,
specifically if it is conduct of a recalcitrant government seemingly giving preference to political considerations
over adherence to the rule of law. 

5. Relying on the case of City of Tshwane Metropolitan Municipality v Afriforum 2016

(6) SA 279 (CC) as the main (but not only) example, as well as the phrase “a textbook case
of judicial overreach”, clearly explain the difference between the separation of powers
doctrine and co-operative/multi-level government. You are required to indicate in precise
detail how each of these concepts are understood and how they function/operate in South
Africa. (20)

The case of Afriforum v Tshwane Municipality is an excellent example to illustrate the functioning of the
separation of powers as well as co-operative government. In this case, the issue in question was the power
of the Tshwane Municipality (local sphere of government) to change apartheid-era street names and the
name of Pretoria itself.  At the same time, any party is permitted to seek judicial review of executive and
legislative decisions, even if it involves a legislative or executive decision within the provincial or local
sphere. The Court recognised that this is a competence that falls squarely within the remit of the
Municipality.  As far as the separation of powers is concerned, the separation of powers relates to the
division of state authority between the legislative, executive and judicial branches of the state.  Each have
clearly defined roles which should not be usurped by one of the other branches.  In this regard, it is the
exclusive role of the legislature to make, amend and repeal legislation; it is the exclusive role of the executive
to implement that legislation; and it is the exclusive role of the judiciary to adjudicate any disputes regarding
the implementation of the legislation or resolve any questions pertaining to the constitutional validity of the
legislation. 

However, South Africa has a “unique and evolving” form of separation of powers according to the case of de
Lange v Smuts.  In this case, the Court held that:
over time our courts will develop a distinctively South African model of separation of powers, one that fits the
particular system of government provided for in the Constitution and that reflects a delicate balancing,
informed both by South Africa’s history and its new dispensation, between the need, on the one hand, to
control government by separating powers and enforcing checks and balances, and, on the other, to avoid
diffusing power so completely that the government is unable
to take timely measure in the public interest. 

What this means is that Courts have a “testing power” which obliges the court to ensure that all law and all
conduct must comply with the Constitution. In the event that the law or conduct does not comply with the
Constitution, the court must declare it invalid.  This is stipulated in section 172 of the Constitution and arises
from the fact that we, the people, chose to give our courts this testing power when our representatives drafted
the Constitution. However, notwithstanding this “fluid” conception of the separation of powers doctrine in South
Africa, the courts are acutely aware of the limits of their powers and have repeatedly declared that they will not
encroach into the domains of either the legislature or executive. Indeed, the courts are permitted to declare law or
conduct invalid even if it appears to amount to what is known as the counter-majoritarian dilemma. 

In the case of Economic Freedom Fighters v Speaker of the National Assembly (2017)  Chief Justice
Mogoeng Mogoeng and Justice Jafta used the expression “a textbook case of judicial overreach” to exclaim
that the court had engaged in a constitutionally impermissible intrusion into the exclusive domain of
Parliament. 

South Africa is an integrated quasi-federal state, which means that there is a system of devolution of power
which means that within the national sphere, there is a legislature; an executive and the judiciary. These
principal organs also exist in the provincial and the local spheres. This is what is known as co-operative or
multi-level government.  According to section 40 and 41 of the Constitution,  it is necessary for the
spheres to co-operate with each other and if it is found that the local sphere is unable to perform one of its
functions, then the provincial and/or national sphere can intervene because they play a supervisory role. 
Therefore, rules exist in the Constitution for how the spheres should co-operate with each other. To resolve
conflicts the following essential rules apply: in the case of a Schedule 4 conflict, section 146 of the
Constitution is invoked;  in the case
of a Schedule 5 conflict, section 147 is invoked, which further refers to section 44(2). 