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 To my partner, Lwando Scott

Pierre de Vos

To my wife, Margot, and my daughters, Jessica and Emily

Warren Freedman
PART ONE PRINCIPLES AND STRUCTURES OF GOVERNMENT

CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT

CHAPTER 2 BASIC CONCEPTS OF CONSTITUTIONAL LAW

CHAPTER 3 SEPARATION OF POWERS AND THE THREE BRANCHES OF

GOVERNMENT

CHAPTER 4 SEPARATION OF POWERS AND THE NATIONAL LEGISLATURE

CHAPTER 5 THE SEPARATION OF POWERS AND THE NATIONAL EXECUTIVE

CHAPTER 6 SEPARATION OF POWERS AND JUDICIAL AUTHORITY

CHAPTER 7 SEPARATION OF POWERS AND CHAPTER 9 INSTITUTIONS

CHAPTER 8 MULTISPHERE GOVERNMENT

CHAPTER 9 TRADITIONAL LEADERSHIP AND CUSTOMARY LAW

PART TWO THE BILL OF RIGHTS AND THE ENFORCEMENT OF THE

CONSTITUTION

CHAPTER 10 INTRODUCTION TO AND APPLICATION OF THE BILL OF RIGHTS

CHAPTER 11 LIMITATION

CHAPTER 12 CONSTITUTIONAL REMEDIES

CHAPTER 13 EQUALITY, HUMAN DIGNITY, FREEDOM AND PRIVACY RIGHTS

CHAPTER 14 DIVERSITY RIGHTS

CHAPTER 15 POLITICAL AND PROCESS RIGHTS

CHAPTER 16 CONSTITUTIONAL PROPERTY LAW

CHAPTER 17 EDUCATION AND SOCIO-ECONOMIC RIGHTS

DEDICATION
CONTENTS IN BRIEF
PREFACE
ABOUT THE AUTHORS
ABOUT THE BOOK
PERMISSIONS AND ACKNOWLEDGEMENTS

PART ONE PRINCIPLES AND STRUCTURES OF GOVERNMENT

CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT

1.1 Introduction
1.2 The historical-legal context: from colonial conquest to democracy
1.2.1 Pre-Union developments
1.2.2 The Union of South Africa and the bifurcated state
1.3 The transition to democracy
1.3.1 The run-up to the first democratic election
1.3.2 CODESA, the MPNF and the two-stage transition
1.3.3 Drafting and adoption of the final 1996 Constitution
1.4 The South African Constitution of 1996
1.4.1 The transformative nature of the Constitution
1.4.2 Interpretation of the South African Constitution
1.4.3 Context: an inegalitarian society and a one-party dominant
democracy
Summary

CHAPTER 2 BASIC CONCEPTS OF CONSTITUTIONAL LAW

2.1 Introduction
2.2 Constitutionalism
2.2.1 Understanding the nature of constitutionalism
2.2.2 Constitutionalism understood descriptively
2.2.3 Constitutionalism understood prescriptively
2.2.4 Constitutionalism in South Africa: a brief overview
2.2.4.1 Introduction
2.2.4.2 The era of the dominance of the Westminster
constitutional model
2.2.4.3 The era of constitutional supremacy
2.2.4.3.1 Introduction
2.2.4.3.2 Constitutional supremacy
2.2.4.3.3 A value-based constitutional system
2.2.4.3.4 Co-operative ‘federalism’
2.3 Separation of powers
2.3.1 The purpose and principles of the doctrine of separation of
powers
2.3.2 A brief history of the doctrine of separation of powers
2.3.3 Separation of powers: the South African experience
2.3.3.1 Introduction
2.3.3.2 The legislature
2.3.3.3 The executive
2.3.3.4 The judiciary
2.3.3.5 The counter-majoritarian dilemma
2.4 The rule of law
2.4.1 Introduction
2.4.2 A brief history of the rule of law
2.4.3 The rule of law under the 1996 Constitution
2.5 Democracy
2.5.1 Introduction
2.5.2 Conceptions of democracy
2.5.3 Direct democracy
2.5.4 Representative democracy
 2.5.5 Participatory democracy
2.5.6 Constitutional democracy
Summary

CHAPTER 3 SEPARATION OF POWERS AND THE THREE BRANCHES OF

GOVERNMENT
3.1 Introduction
3.2 A new democratic constitutional dispensation within a system of
separation of powers
Summary

CHAPTER 4 SEPARATION OF POWERS AND THE NATIONAL LEGISLATURE

4.1 Introduction
4.2 The structure and composition of Parliament
4.2.1 The structure of Parliament
4.2.2 The role of political parties
4.3 General rules regarding the operation of Parliament
4.3.1 Introduction
4.3.2 Openness and transparency in Parliament
4.3.3 The powers and privileges of Members of Parliament
4.3.4 Public involvement in the legislative and other processes of the
National Assembly and the National Council of Provinces
4.4 The National Assembly
4.4.1 The composition of the National Assembly
4.4.2 The party proportional representation electoral system
4.4.3 New Nation Movement NPC v President of the Republic of South
Africa
4.4.4 The right to vote and the Electoral Commission
4.4.5 Eligibility for election to the National Assembly
4.4.6 Duration of the National Assembly, sittings and its dissolution
4.4.7 Powers and functioning of the National Assembly
4.5 The National Council of Provinces
4.5.1 The composition and functioning of the National Council of
Provinces
 4.5.2 Procedures, internal arrangements and committees of the
National Council of Provinces
4.6 Functions of Parliament
4.6.1 Introduction
4.6.2 National forum for public consideration of issues
4.6.3 Holding the executive accountable to Parliament
4.6.4 Maintaining oversight of the national executive authority and
other organs of state
4.6.5 Passing of legislation
4.6.6 Delegation of legislative powers to executive or other legislatures
Summary

CHAPTER 5 THE SEPARATION OF POWERS AND THE NATIONAL EXECUTIVE

5.1 Introduction
5.2 The President
5.2.1 Election, term of office, and removal
5.2.2 The President as Head of State and as head of the executive
5.2.3 The limits on the exercise of presidential power
5.3 The Deputy President and the rest of the Cabinet
5.3.1 Appointment and removal
5.3.2 Powers of the Deputy President and the Cabinet
Summary

CHAPTER 6 SEPARATION OF POWERS AND JUDICIAL AUTHORITY

6.1 The historic legacy of parliamentary sovereignty and apartheid on the
judiciary
6.2 The appropriate roll of courts in a constitutional democracy
6.3 The judiciary in the new constitutional dispensation
6.3.1 The structure of the judiciary in the 1996 Constitution
6.3.2 Constitutional jurisdiction of the various courts
6.3.2.1 Constitutional Court
6.3.2.2 Supreme Court of Appeal
6.3.2.3 High Courts
 6.3.2.4 Magistrates’ courts
6.4 The independence of the superior courts
6.4.1 Introduction
6.4.2 Appointment of judges
6.4.3 The judicial oath of office
6.4.4 Security of tenure
6.4.5 Financial security
6.4.6 Limitation of civil liability
6.4.7 Office of the Chief Justice
6.5 Independence of the lower courts and traditional courts
6.5.1 The lower courts under the interim Constitution
6.5.2 Independence of the lower courts under the 1996 Constitution
6.5.3 Independence of traditional courts
6.6 The National Prosecuting Authority
Summary

CHAPTER 7 SEPARATION OF POWERS AND CHAPTER 9 INSTITUTIONS

7.1 Introduction
7.2 Independence of Chapter 9 institutions
7.3 The Public Protector - a special case?
Summary

CHAPTER 8 MULTISPHERE GOVERNMENT

8.1 The division of powers between spheres of government: general principles
8.1.1 Introduction
8.1.2 Historical background
8.1.3 The Constitutional Principles
8.1.4 The principles of co-operative government
8.1.5 Co-operative government and the co-ordination of
intergovernmental relations
8.2 The division of legislative and executive power between the national and
provincial spheres of governments
8.2.1 Introduction
 8.2.2 The objectives and structure of provincial government
8.2.3 Determining legislative competence: the pith and substance test
8.2.4 The resolution of conflicts between the national and provincial
spheres
8.2.4.1 Conflicts related to concurrent competences set out
in Schedule 4
8.2.4.2 Conflicts related to exclusive provincial competences
in Schedule 5
8.2.5 National intervention in provincial administration
8.3 The division of legislative and executive power between the national and
provincial and local spheres of government
8.3.1 Introduction
8.3.2 The objectives of local government
8.3.3 The structure of local government
8.3.4 Municipal powers
8.3.4.1 Original municipal powers
8.3.4.2 Assigned municipal powers
8.3.4.3 Incidental municipal powers
8.3.5 Conflicting national, provincial and municipal laws
8.3.6 Supervision of local government
8.4 Financial affairs
8.4.1 Introduction
8.4.2 The division of fiscal powers
8.4.3 The collection of revenue
8.4.4 The distribution of revenue
8.4.5 The budgetary process
8.4.6 The central bank
8.4.7 Procurement
8.4.7.1 Introduction
8.4.7.2 The Preferential Procurement Policy Framework Act 5
of 2000
Summary
CHAPTER 9 TRADITIONAL LEADERSHIP AND CUSTOMARY LAW
9.1 Introduction
9.2 Traditional leadership in context
9.2.1 Introduction
9.2.2 Traditional leadership during the pre-colonial period
9.2.3 Traditional leadership during the colonial and apartheid eras
9.2.4 Traditional leadership during the transition period
9.2.5 Traditional leadership in the democratic era
9.3 Legislation regulating traditional leadership
9.4 The Traditional Leadership and Governance Framework Act
9.4.1 Introduction
9.4.2 Recognition of traditional leaders
9.4.3 Functions of traditional leaders
9.4.4 Recognition of traditional communities
9.4.5 Establishment of traditional councils
9.4.6 Traditional communities, traditional councils and the homelands
9.4.7 The functions of traditional councils
9.5 The National House of Traditional Leaders
9.5.1 Introduction
9.5.2 The establishment and composition of the national House
9.5.3 Qualification and disqualification of members
9.5.4 The term of office and dissolution of the national House
9.5.5 Chairperson and deputy-chairperson of the national House
9.5.6 Meetings and decisions of the national House
9.5.7 Powers and duties of the national House
9.5.8 Conclusion
Summary

PART TWO THE BILL OF RIGHTS AND THE ENFORCEMENT OF THE CONSTITUTION

CHAPTER 10 INTRODUCTION TO AND APPLICATION OF THE BILL OF RIGHTS

10.1 Introduction
10.2 The structure of Bill of Rights litigation
10.3 The application of the Bill of Rights
10.3.1 Introduction
10.3.2 Who is entitled to claim the rights in the Bill of Rights?
10.3.2.1 Introduction
10.3.2.2 Natural persons
10.3.2.3 Juristic persons
10.3.2.4 Standing to enforce rights
10.3.3 Who is bound by the rights in the Bill of Rights?
10.3.3.1 Introduction
10.3.3.2 The direct vertical application of the Bill of Rights
10.3.3.2.1 Introduction
10.3.3.2.2 All organs of state
10.3.3.3 The direct horizontal application of the Bill of Rights
10.3.3.4 The indirect application of the Bill of Rights
10.3.3.4.1 Introduction
10.3.3.4.2 The indirect application of the Bill of
Rights to legislation
10.3.3.4.3 The indirect application of the Bill of
Rights to the common law and
customary law
Summary

CHAPTER 11 LIMITATION
11.1 Introduction
11.2 Two-stage enquiry
11.3 Evolution of the general limitation clause
11.4 The first stage: Has the right been infringed?
11.4.1 Introduction
11.4.2 The content and scope of the protected right
11.4.2.1 Introduction
11.4.2.2 Internal modifiers
11.4.3 The meaning and effect of the impugned law or conduct
11.5 The limitation analysis
 11.5.1 Introduction
11.5.2 Law of general application
11.5.2.1 Introduction
11.5.2.2 The limitation must take the form of a law
11.5.2.3 The content of the law must be generally applicable
11.6 Reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom
11.6.1 Reconsidering the role of proportionality
11.6.2 The purpose of the limitation
11.6.3 The rational connection requirement
11.6.4 Less restrictive, alternative means of achieving the end
11.6.5 Balancing and proportionality proper
11.6.5.1 Introduction
11.6.5.2 Stacking the rights side of the balancing scales
11.6.5.3 Stacking the limiting measure’s side of the balancing
scales
11.6.5.4 Balancing and proportionality proper
11.6.5.5 Reasonable accommodation
11.7 The burden of justification
11.8 Special limitations
11.9 The limitation of rights by other constitutional provisions
Summary

CHAPTER 12 CONSTITUTIONAL REMEDIES

12.1 Introduction
12.2 Declarations of invalidity
12.2.1 Introduction
12.2.2 Reading down
12.2.3 Reading in
12.2.4 Severance
12.2.5 Notional severance
12.3 Limiting the retrospective effect of an order of invalidity
12.4 Suspension of an order of invalidity
12.5 Meaningful engagement
12.6 Constitutional damages
12.7 A declaration of rights
12.8 An interdict
12.8.1 Structural Interdicts
Summary

CHAPTER 13 EQUALITY, HUMAN DIGNITY, FREEDOM AND PRIVACY RIGHTS

13.1 Introduction
13.2 The right to equality and non-discrimination
13.2.1 Introduction: substantive equality versus formal equality
13.2.2 Differentiation and discrimination
13.2.3 Values underlying the right to equality: human dignity and
equality
13.2.4 Attacking the constitutionality of a legislative provision: section 9
of the Constitution
13.2.4.1 Introduction
13.2.4.2 Mere differentiation: section 9(1)
13.2.4.3 Redress measures (affirmative action) imposed by
legislation: section 9(2)
13.2.4.3.1 Basic approach
13.2.4.3.2 The test for redress (affirmative action)
measures in terms of section 9(2)
a) Do the measures target persons or
categories of persons who have
been disadvantaged by unfair
discrimination?
b) Are the measures designed to
protect or advance such persons or
categories of persons?
c) Do the measures promote the
achievement of equality in the long
term?
13.2.4.3.3 Redress measures and legality
 13.2.4.4 Unfair discrimination: section 9(3)
13.2.4.4.1 Does the differentiation amount to
discrimination?
13.2.4.4.2 Is the discrimination unfair?
13.2.5 Non-statutory imposed discrimination: the Promotion of Equality
and Prevention of Unfair Discrimination Act 4 of 2000
13.2.5.1 Unfair discrimination under PEPUDA
13.2.5.2 Redress under PEPUDA: section 14(1)
13.3 The right to human dignity
13.3.1 Introduction
13.3.2 Human dignity as a right and as a value
13.4 The right to freedom and security of the person
13.4.1 Introduction
13.4.2 The right to freedom
13.4.3 The substantive and procedural aspects of the right to freedom
13.4.4 The right to be free from all forms of violence from either public
or private sources
13.4.5 The right not to be treated or punished in a cruel, inhuman or
degrading manner
13.4.6 Bodily and psychological integrity
13.4.6.1 Termination of pregnancy
13.5 The right to privacy
13.5.1 Introduction
13.5.2 Scope and content of the right to privacy
13.5.3 Privacy regarding sexual intimacy
13.5.4 Privacy and the possession and use of cannabis (dagga)
Summary

CHAPTER 14 DIVERSITY RIGHTS

14.1 Introduction
14.2 Freedom of association
14.2.1 Introduction
14.2.2 The scope and content of section 18 of the Constitution
 14.2.3 Societal interests overriding association rights
14.2.3.1 Equality
14.2.3.2 Democracy
14.2.4 Balancing rights
14.3 Freedom of religion, belief and opinion
14.3.1 Introduction
14.3.2 The scope and content of section 15(1) of the Constitution
14.3.3 The reasonable accommodation of religious beliefs and practices
14.3.4 The right not to believe in any God or higher being
14.3.5 Conducting religious observances at state institutions: section
15(2) of the Constitution
14.3.6 Legislation recognising religious and traditional marriages:
section 15(3)(a)(i) of the Constitution
14.4 The rights of cultural and religious communities
14.4.1 The individual nature of these rights and how other rights both
qualify and enhance them
14.4.2 The international protection of cultural liberties
14.4.3 An analysis of the scope and content of sections 30 and 31 of
the Constitution
14.4.4 An analysis of the internal modifiers in sections 30 and 31 of the
Constitution
14.5 Language rights
14.5.1 Introduction
14.5.2 The right not to be unfairly discriminated against on the basis of
language
14.5.3 The right to receive education in the official language of choice
14.5.4 Official languages of the Republic
14.5.5 The Pan South African Language Board
Summary

CHAPTER 15 POLITICAL AND PROCESS RIGHTS

15.1 The right to freedom of expression
15.1.1 Introduction
 15.1.2 Scope and ambit of the right to freedom of expression
15.1.3 Freedom of the press and other media
15.1.3.1 Introduction
15.1.3.2 The role of the press
15.1.3.3 Access to and broadcasting of court proceedings
15.1.3.4 Access to and broadcasting of criminal proceedings
15.1.3.5 Access to and reporting on proceedings concerning
children
15.1.3.6 Access to and reporting of divorce proceedings
15.1.3.7 Access to and reporting on proceedings involving
state security
15.1.3.8 Prior restraints
15.1.3.9 The regulation of broadcasting
15.1.4 Hate speech
15.1.4.1 Introduction
15.1.4.2 The scope and extent of hate speech
15.2 The rights to freedom of assembly, demonstration, picket and petition
15.2.1 Introduction
15.2.2 Scope and ambit of the right to assembly
15.2.3 Distinguishing between assemblies, demonstrations, pickets and
petitions
15.2.3.1 Assemblies and demonstrations
15.2.3.2 Pickets
15.2.3.3 Petitions
15.2.4 The Regulation of Gatherings Act 205 of 1993
15.2.5 Liability for damage caused during a gathering
15.3 Political rights
15.3.1 Introduction
15.3.2 The right to make political choices and the role of political parties
15.3.2.1 Introduction
15.3.2.2 The regulation of political parties
15.3.3 State funding of political parties
15.3.4 The right to free, fair and regular elections
 15.3.5 The right to vote
15.3.5.1 Introduction
15.3.5.2 Regulating the right to vote
15.3.5.3 Exclusions from the right to vote
15.3.5.3.1 Introduction
15.3.5.3.2 Prisoners
15.3.5.3.3 Citizens working abroad
15.3.6 The right to stand for and hold office
Summary

CHAPTER 16 CONSTITUTIONAL PROPERTY LAW

16.1 Introduction
16.2 The negative phraseology of the property clause
16.3 The section 25(1)–(3) methodology
16.4 Deprivation of property
16.4.1 The meaning of deprivation
16.4.2 Arbitrary deprivation of property
16.5 Expropriation of property
16.5.1 The meaning of expropriation of property
16.5.2 Compensation for expropriation
16.5.3 Expropriation without compensation
16.6 Land reform: Distinguishing between redistribution and restitution of land
Summary

CHAPTER 17 EDUCATION AND SOCIO-ECONOMIC RIGHTS

17.1 Introduction
17.2 The constitutionalisation of socio-economic rights
17.2.1 Introduction
17.2.2 The justiciability debate
17.3 Socio-economic rights in the Constitution
17.3.1 Introduction
17.3.2 Progressively realisable socio-economic rights
17.3.3 Immediately realisable socio-economic rights
17.4 Constraints in the adjudication of socio-economic rights
17.4.1 Introduction
17.4.2 Separation of powers
17.5 Guidelines in the interpretation of socio-economic rights
17.5.1 Introduction
17.5.2 Duty to respect
17.5.3 Duty to protect
17.5.4 Duty to fulfil
17.5.5 Duty to promote
17.6 The obligation on private parties regarding socio-economic rights
17.7 Enforcing socio-economic rights obligations
17.7.1 Introduction
17.7.2 Enforcing negative duties
17.7.3 Enforcing the positive duties imposed by sections 26 and 27 of
the Constitution
17.7.3.1 The reasonableness approach
17.7.3.1.1 Introduction
17.7.3.1.2 Soobramoney and the rationality model
of review
17.7.3.1.3 Grootboom and the reasonableness
model of review
17.7.3.1.3.1 ‘Access to’ rights
17.7.3.1.3.2 Reasonableness
17.7.3.2 Critique of the reasonableness approach
17.7.3.3 Minimum core approach
17.7.3.4 Progressive realisation
17.7.3.5 Availability of resources
17.7.3.6 Meaningful engagement
17.7.4 Crafting appropriate remedies in socio-economic rights cases
17.7.5 Immediately realisable socio-economic rights and the right to
education
17.7.5.1 Introduction
17.7.5.2 The right to a basic education
 17.7.5.2.1 Introduction
17.7.5.2.2 The scope and ambit of the
constitutional right to ‘basic education’
17.7.5.3 The right to receive education in the language of
one’s choice
17.7.5.3.1 Introduction
17.7.5.3.2 The general right and its internal
modifiers
17.7.5.4 The question of free tertiary education
17.7.5.4.1 Introduction
17.7.5.4.2 Meaning and content of the right to
further education
Summary

LIST OF REFERENCES
TABLE OF CASES
TABLE OF LEGISLATION
GLOSSARY
INDEX
The 1997 Australian comedy, The Castle, tells the story of the Kerrigan
family’s fight against the compulsory acquisition by the government of
their home to make way for an expanded runway at the airport. The
father, Darryl Kerrigan, hires an incompetent lawyer acquaintance,
Dennis Denuto, to assist the family, but when asked by the judge what
section of the Constitution he is invoking to challenge the
expropriation, Dennis is unable to assist the court. ‘There is no one
section,’ he hesitantly tells the court. ‘It’s just the vibe of the thing, your
Honour.’
After the Kerrigans lost the case, Lawrence Hammill, a retired
Queen’s Counsel, decides to argue it pro bono on appeal before the
High Court of Australia. Lawrence makes a persuasive case that the
Kerrigans have the right to just compensation under section 51(xxxi) of
the Australian Constitution and closes by paraphrasing Darryl’s own
comments that his house is more than just a structure of bricks and
mortar: it is a home built with love and shared memories. The Court
rules in favour of the Kerrigans and their case becomes a landmark
precedent.
To some extent, this textbook takes its inspiration from The Castle. It
recognises that a proper appreciation of South Africa’s Constitution
requires a keen understanding of both the ‘vibe’ of the Constitution,
specifically its broad aims of preventing a recurrence of the horrors of
colonialism and apartheid and of promoting the social and economic
transformation of our society, and a detailed and precise understanding
of the individual provisions of the Constitution, as fleshed out by the
jurisprudence of the Constitutional Court. At the same time, the
textbook also recognises that constitutional rules must be evaluated
with reference to their impact on the quality of governance, and on the
lives of all the people who live in South Africa.
This textbook, therefore, aims to provide students (and others
interested in the manner in which the Constitution must be interpreted
and applied) with a relatively succinct, yet comprehensive, overview of
the constitutional law of South Africa. The text is premised on the fact
that South Africa’s colonial and apartheid past continues to exert an
influence on the attitudes and social and economic circumstances of
those who live in the country as well as on the prevailing political
culture. It embraces the notion that ours is a transformative
Constitution aimed at facilitating the creation of a fair, equitable and
just society in which the human dignity of every person is respected and
protected. At the same time, it raises critical questions about the
limitations of transformative constitutionalism.
Work on this second edition started in 2018, with most contributions
completed towards the end of 2019. The editing was completed in the
second half of 2020 while South Africa was under various levels of
lockdown due to the Covid-19 pandemic. Since the publication of the
first edition in 2013, the Constitutional Court has continued to deliver
ground-breaking judgments, several of which have deepened our
understanding of the role of the National Parliament in holding the
executive to account, the duties of the President and the national
executive, the powers of the Public Protector, and the role of the
National Prosecuting Authority, and these new developments are all
reflected in the book. A new chapter on the role of traditional leadership
in the governance system has also been added. Apart from the role of
traditional leaders in the governance systems, this edition also includes
new sections on the right to bodily integrity, the right to property and
the land question, as well as the right to education.
Despite these major revisions, the basic premise of the book
remains the same, namely that the study of South African constitutional
law cannot profitably be undertaken in the abstract and needs to be
situated within the political, social and economic context of present-day
South Africa to enable readers better to understand the provisions of
the Constitution and their interpretation, especially by the
Constitutional Court. The book aims to achieve this purpose by
including tables, diagrams and ‘learning boxes’ containing relevant
factual information about the socio-economic and political realities in
the country and its history, opinions from a wide array of sources as
well as excerpts from academic writing (which are also aimed at
encouraging critical thinking about the Constitution and its
interpretation). A special effort was made to include more critical voices
of the constitutional project and of individual Constitutional Court
judgments in the second edition of the book.
We hope that it provides a crisp yet detailed overview of most of the
pressing constitutional law issues in South Africa today, issues which
are not normally addressed in other courses in the standard LLB
curriculum. We further hope that the book signals that many
constitutional law issues can be approached from different angles, thus
encouraging further reading and critical analysis and engagement with
many of the most pressing constitutional law issues that are often hotly
debated in the South African media.
The editors deliberately recruited a team of dedicated authors with
different levels of experience and different perspectives from many
different academic institutions in order to utilise and showcase the
diverse talents of constitutional law academics in South Africa. It is not
surprising that working with a large team of authors presented some
challenges. The editors worked hard to ensure that the contextual focus
is retained throughout the book and that the book retains a coherent
tone and an even level of complexity. We hope that the end result
reflects at least some of this hard work. However, the book would not
have been possible without the assistance of the authors whose
dedication, we hope, is reflected in the final product. We would
therefore like to thank Zsa Zsa Boggenpoel, Lisa Draga, Karthy
Govender, Sindiso Mnisi-Weeks, Khulekani Moyo, Catherine Namakula,
Nomthandazo Ntlama, Douglas Mailula, Sanele Sibanda and Lee Stone
for their hard work in making this book a reality.
Apart from the authors, we would also like to thank the staff of
Oxford University Press, and especially Penny Lane, Jeané de Bruin and
Edward Ndiloseh. Thanks are also due to the staff of Language
Mechanics and especially Kobie Ferreira.
Pierre de Vos and Warren Freedman
December 2020
PIERRE DE VOS (Editor)
BCom, LLB, LLM (Stellenbosch), LLM (Columbia), LLD (Western Cape)
Pierre de Vos is the incumbent of the Claude Leon Foundation Chair in
Constitutional Governance, and Head of the Department of Public Law,
at the University of Cape Town, where he teaches constitutional law,
social justice and the constitution, and governing under the
constitution. His research focuses on the impact of the past on the
current failure to realise human rights, with a specific focus on non-
discrimination law, queer theory and LGBTQ rights, freedom of
expression and its limits, and social and economic inequality. He writes
a blog entitled Constitutionally Speaking (syndicated to the Daily
Maverick) and commentates widely in the media on constitutional
questions. He serves on the advisory council of the Council for the
Advancement of the South African Constitution (CASAC), and is a
board member of PEN South Africa.

WARREN FREEDMAN (Editor)

BCom, LLB (Witwatersrand), LLM, Advanced PG Certificate in Higher
Education (KwaZulu-Natal)
Warren Freedman is an Associate Professor in the School of Law at the
University of KwaZulu-Natal, where he teaches constitutional law,
environmental law, and property law. His research focuses on the
principles and structures of government, land use and planning law,
coastal zone management law, and the public trust concept. Warren
was a member of the panel of experts appointed to advise the KwaZulu-
Natal Provincial Legislature on the drafting and adopting of a provincial
constitution in 2004/2005.
ZSA-ZSA BOGGENPOEL
BCom, LLB, LLD (Stellenbosch)
Zsa-Zsa Boggenpoel is a Professor in the Department of Private Law at
Stellenbosch University, where she teaches property Law, constitutional
property law and property theory. She was awarded the National
Research Foundation (NRF) rating in the category Y1 in 2016 and the
South African Research Chair in Property Law (Tier 1) under the NRF’s
South African Research Chairs Initiative (SARChI) in 2018. Zsa-Zsa has
received numerous awards from Stellenbosch University and from
universities abroad, including the Henry Arthur Holland Scholarship in
Law (2009) from the University of Cambridge, London, a Visiting
Scholarship from the Molengraaff Institute for Private Law (2009) at
Utrecht University, the Netherlands, the Mellon Academic
Development Award (2014) from the Division for Research
Development at Stellenbosch University and the Vice-Rector Research’s
Award (2015 and 2019). She has published numerous journal articles
and one monograph, has presented research papers at national and
international conferences associated with property law, and has
contributed to various chapters in South African property law
textbooks.

LISA DRAGA
LLB (Western Cape), LLM (Missouri)
Lisa Draga is a lecturer in the Department of Public Law and
Jurisprudence at the University of the Western Cape, where she teaches
constitutional law and human rights law. Her research focuses on
education law. Prior to her appointment at the University of the
Western Cape, Lisa served as a social justice lawyer at the Equal
Education Law Centre where she engaged in legal advocacy,
community lawyering, public interest litigation and basic education
policy work. She has been involved in high profile education related
cases in the High Courts and the Constitutional Court of South Africa.
Lisa also worked as a law clerk at the Constitutional Court of South
Africa and completed her articles of clerkship at the Legal Resources
Centre.
CHRISTOPHER GEVERS
LLB (KwaZulu-Natal), MSc (London School of Economics)
Christopher Gevers is a lecturer in the School of Law at the University of
KwaZulu-Natal, where he teaches international law, legal theory and
related subjects. His research focusses on black internationalism, third
world approaches to international law, critical race theory, and law and
literature. Chris has been a faculty member of the Institute for Global
Law & Policy at Harvard Law School since 2015 and has held visiting
fellowships at Harvard Law School and the University of Oxford.

KARTHIGASEN GOVENDER
LLB (London), LLB (KwaZulu-Natal), LLM (Michigan)
Karthigasen Govender was a Professor in the School of Law at the
University of KwaZulu-Natal and is currently a senior research associate
at the same institution. His research focuses on constitutional and
administrative law. Karthigasen was appointed to the South African
Human Rights Commission by former President Mandela in 1996, and
was reappointed for a second term by former President Mbeki in 2002.
He is a Senior Arbitrator for the South African Local Government
Bargaining Council, a Barrister (Middle Temple, Inns of Court, United
Kingdom), and an Advocate of the High Court of South Africa.
Karthigasen has also acted as a Judge of the High Court of South Africa,
and was appointed to the SA Law Reform Commission for a five-year
term in 2018.

PATRICIA LENAGHAN
BLC LLB (Pretoria), LLM, LLD (Western Cape)
Patricia Lenaghan is Associate Professor in the Department of
Mercantile and Labour Law at the University of the Western Cape. Her
current areas of interest include international trade law, regional
integration and development, and European Union law. Patricia
practised in Gauteng as an Attorney, Notary and Conveyancer of the
High Court of South Africa before joining the University of the Western
Cape to pursue her academic interests.
KHULEKANI MOYO
LLB (Hons) (Zimbabwe), LLM (Oslo), LLD (Stellenbosch), Diploma in
the International Protection of Human Rights and Diploma in the
Justiciability of Economic, Social and Cultural Rights (Åbo Akademi,
Finland)
Khulekani Moyo is a Senior Lecturer in the School of Law at the
University of the Witwatersrand. His research focuses on constitutional
law, international law, international criminal law, international human
rights law, business and human rights, and regional integration law.
Prior to his appoint at the University of the Witwatersrand, Khulekani
served as the Head of Research at the South African Human Rights
Commission, as a Senior Lecturer in the Nelson R Mandela School of
Law at the University of Fort Hare, and as a researcher at the Norwegian
Centre for Human Rights.

DOUGLAS MAILULA
B Proc, LLB, LLM, LLD (South Africa)
Douglas Mailula is a Senior Lecturer in the Faculty of Law at the
University of Venda. His research focuses on constitutional law,
customary law, child law, and mining and mineral law. Prior to his
appointment at the University of Venda, he served as Chair of the
Department of Public, Constitutional and International Law at the
University of South Africa and as the Deputy Director of Mineral Policy
Development in the erstwhile Department of Minerals and Energy.
Douglas is a member of the editorial committee of the Comparative and
International Law Journal of Southern Africa.

SINDISO MNISI WEEKS

BA, LLB (Cape Town), MSt, DPhil (Oxford)
Sindiso Mnisi Weeks is an Assistant Professor at the University of
Massachusetts in Boston, and an Adjunct Associate Professor at the
University of Cape Town. Her research focuses on women, property,
governance, dispute management, and participation under customary
law and the South African Constitution. Sindiso received her DPhil from
the University of Oxford’s Centre for Socio-Legal Studies, as a Rhodes
Scholar, and previously clerked for then Deputy Chief Justice of the
Constitutional Court of South Africa, Dikgang Moseneke. She is the
author of Access to Justice and Human Security: Cultural Contradictions
in Rural South Africa (Routledge, 2018) and co-author of African
Customary Law in South Africa: Post-Apartheid and Living Law
Perspectives (OUPSA, 2015). She has taught African Customary Law in
the Department of Private Law at the University of Cape Town, Law and
Society in the Department of Political Science at the University of
Massachusetts Amherst, and for the Consortium for Graduate Studies in
Gender, Culture, Women, and Sexuality (GCWS) at the Massachusetts
Institute of Technology.

CATHERINE S NAMAKULA
LLB (Hons) (Makerere), LLM (Nottingham), PhD (Witwatersrand)
Catherine Namakula is a lecturer in the Nelson R Mandela School of
Law at the University of Fort Hare, where she teaches constitutional law.
Her research focuses on human rights and criminal justice, the
structure of a human right, the human rights mandate of the prosecutor
in international criminal trials, and the right to a fair hearing in
international criminal trials.

NOMTHANDAZO NTLAMA
B Juris, LLB (Fort Hare), Certificate in Comparative Human Rights, LLM
(Stellenbosch), LLD (UNISA)
Nomthandazo Ntlama is a Professor and Acting Head of the UNESCO
‘Oliver Tambo’ Chair of Human Rights in the Nelson R Mandela School
of Law at the University of Fort Hare. Her research focuses on
constitutional law, human rights and customary/indigenous law. Prior
to her current appointment, Nomthandazo served as Head of Research
at the Nelson R Mandela School of Law, where she Coordinated the
Outreach Programmes on Human Rights at the UNESCO ‘Oliver Tambo’
Chair of Human Rights, at the University of South Africa, and at the
University of KwaZulu-Natal. She has also served as a Researcher on
Equality at the South African Human Rights Commission (SAHRC), and
acted as a Judge of the Divisions of the High Courts in Bisho in the
Eastern Cape and Durban in KwaZulu-Natal. She has represented the
Society of Law Teachers of Southern Africa as a Commissioner in the
South African Judicial Services Commission (JSC), and served as a
board member of various academic journals: South African Women’s
Chapter: International Association of Women Judges Law Journal,
Southern African Public Law Journal, and the South African Judicial
Education Journal (SAJEI).

SANELE SIBANDA
BA, LLB (Cape Town), LLM, PhD (Witwatersrand)
Sanele Sibanda is a Senior Lecturer in the Faculty of Law at the
University of the Pretoria, where he teaches administrative law,
constitutional law, and jurisprudence. His research focuses on
constitutionalism, constitutional law, liberation theory and indigenous
law. In his work, which seeks to understand the state of contemporary
South African constitutionalism, Sanele deploys a critical historical
method that emphasises the structural, institutional, philosophical and
epistemic continuities that prevail and continue to define post-1994
South Africa. Sanele is a member of the editorial committee of the South
African Journal on Human Rights.

LEE STONE
LLB (Free State), LLM (Pretoria), PhD (Wits), Diploma in the
Justiciability of Economic, Social and Cultural Rights (Abo, Finland)
Lee Stone is an Associate Professor in the Department of Public,
Constitutional and International Law at the University of South Africa,
where she teaches constitutional law and refugee law. Her research
focuses on international criminal law, the African regional human
rights system, refugee law, gender and the law, and constitutional and
human rights law. Lee is an Attorney of the High Court of South Africa,
and is the Chair of the Board of Directors of Agenda Feminist Media, a
feminist non-governmental organisation based in South Africa. Prior to
her appointment at UNISA, Lee held a research position for the Refugee
Rights Project at Lawyers for Human Rights, South Africa, worked for
the African Commission on Human and Peoples’ Rights in The Gambia,
was a Legal Officer at the Institute for Human Rights and Development
in Africa (a Pan-African NGO based in The Gambia), and worked at the
Legal Resources Centre in Durban. Lee was also a Senior Lecturer in the
School of Law at the University of KwaZulu-Natal.
South African Constitutional Law in Context offers a clear and
accessible guide to the principles and context of constitutional law in
South Africa, presenting a balanced approach that develops both
theoretical and applied knowledge. The text’s pedagogical design
supports readers to form a sound foundation of understanding and to
develop skills to engage independently and judiciously with legal
principles and developments.

Brief description of the features

Pause for reflection: This feature functions to instill a broader and

deeper understanding of the subject matter. It invites readers to reflect
upon specific questions and issues, thereby stimulating discussion,
supporting independent thought, and developing the ability to analyse
and engage meaningfully with relevant issues.

Critical thinking: This feature supports and encourages the capacity to

engage critically and flexibly with concepts and perspectives discussed
in the text. It builds an awareness of various opinions about a particular
principle, assists readers to engage with issues and debates from diverse
perspectives, and develops skills in formulating and analysing legal
argument. The content of this feature might highlight areas of
controversy or debate, specific criticisms of the law, or possible options
for law reform.

Counterpoint: These boxes highlight specific criticisms of the law just

described and identify reform options. They emphasise areas of
controversy, problems with current law and possible alternatives. This
feature supports the ability to think critically and flexibly. It helps
students to conceptualise legal issues from various perspectives,
develops skills in formulating legal argument, and builds an awareness
of various opinions about a particular principle.

Summary: This section maps the key areas and core topics that are
covered within each chapter in a succinct list of essential points.

Glossary: The text is supported by a comprehensive glossary that

concisely explains the key terms and concepts that appear in the text.
All of the terms that are included in the glossary are styled in bold-grey
font within the text.
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South African Law Journal 130(3).
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Government.
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Constitutional Litigation.
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Annual Survey of South African Law.
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be made to dance on the head of a pin? A reply to Professor Fagan
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human dignity in the new South Africa Tydskrif vir die Suid
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and remembrance in the South African Constitution South African
Law Journal 129(1).
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evaluation of positive measures, groups and subsidiarity in
Solidariteit v Minister of Basic Education. South African Law Journal
135(3).
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test case for human rights South African Law Journal 110(3).
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as factors determining the interference parameter of property: A
comparison of German and South African law South African Law
Journal 127(2).
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of Property 7 ed.
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land reform programme: Characteristics, dichotomies and tensions
(part 1) Tydskrif vir die Suid Afrikaanse Reg/Journal of South African
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amaRespectables and the birth of evolutionary constitution – a
review of Tembeka Ngcukaitobi’s The Land is Ours: South Africa’s
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thoughts on an alternative jurisprudence SAJHR 34(3). Reprinted by
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Journal on Human Rights.
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(eds) (2013) Constitutional Law of South Africa 2 ed rev service 5
13.18. Reprinted by kind permission of Prof S Woolman.
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of the Constitution’ in Woolman & Bishop (2013). Reprinted by kind
permission of Prof S Woolman.
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Constitutional Democracy – Transition and Transformation’,
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Court in South Africa’ in Andrews, P & Ellmann, S (2001) The Post-
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PART ONE

Principles and
structures of
government

CHAPTER 1 South African constitutional law in

context
CHAPTER 2 Basic concepts of constitutional law
CHAPTER 3 Separation of powers and the three
branches of government
CHAPTER 4 Separation of powers and the national
legislature
CHAPTER 5 Separation of powers and the national
executive
CHAPTER 6 Separation of powers and judicial
authority
CHAPTER 7 Separation of powers and Chapter 9
institutions
CHAPTER 8 Multisphere government in South
Africa
CHAPTER 9 Traditional leadership in South Africa
South African constitutional law
in context

1.1 Introduction

1.2 The historical-legal context: from colonial conquest to democracy

1.2.1 Pre-Union developments
1.2.2 The Union of South Africa and the bifurcated state

1.3 The transition to democracy

1.3.1 The run-up to the first democratic election
1.3.2 CODESA, the MPNF and the two-stage transition
1.3.3 Drafting and adoption of the final 1996 Constitution

1.4 The South African Constitution of 1996

1.4.1 The transformative nature of the Constitution
1.4.2 Interpretation of the South African Constitution
1.4.3 Context: an inegalitarian society and a one-party dominant democracy

Summary

1.1 Introduction
A constitution is often said to be the founding document of a nation as
the authority of the state is derived from it. It sets up the structures of
government and authorises as well as regulates the exercise of power by
the elected branches of government and the judiciary (and, in some
instances, private institutions and individuals). It also places limits on
the exercise of that power and sets out the ground rules according to
which a country must be governed. However, democratic constitutions
are not mere technical legal documents that contain detailed provisions
prescribing the manner in which the legislature, the executive, the
judiciary and other organs of state exercise public power and setting
limits on the exercise of those powers to protect citizens. Hence, we
cannot profitably study the constitutional law of a democratic state in
the abstract, as if the historical context out of which the constitution
emerged and the current social, economic and political realities of this
state have no bearing on an interpretation and evaluation of the various
provisions of a written constitution.1 Nor can we ignore the broader
global context within which the constitution operates. Constitutional
law, therefore, can arguably be described as the most ‘political’ branch
of the law.
In critically evaluating the manner in which constitutions actually
operate in practice and in judging the successes and failures of various
aspects of a constitutional design, we should start with, but cannot
exclusively rely on, the text of the constitution to gain a comprehensive
picture of how this constitution operates. We also need to consider the
wider context in which that constitutional text finds application.
Constitutions are often said to represent a snapshot of the hopes and
dreams of a nation at the time of its writing or – more cynically – to
represent a snapshot of the relative political power and influence of
various political formations (or elites) involved in the drafting of that
constitution.
However, constitutions are also living documents that judges have to
interpret and apply in an ever-changing political, economic and social
environment. A constitutional text often contains open-ended and
relatively general language. In constitutional democracies, therefore,
judges have to interpret, apply and flesh out the meaning of the
constitutional text. The interpretation and application of the various
provisions of a constitution will not necessarily remain static. Although
judges in countries like South Africa are bound by previous precedent,
this does not mean that they will not over time subtly reinterpret and
reapply the text of the Constitution, 1996 (hereinafter referred to as ‘the
Constitution’). These judges, after all, are human beings who do not
float above the world like disembodied ghosts completely untouched by
the society in which they live. They will, despite their best efforts,
interpret the often open-ended and general provisions of a constitution
in ways that are not entirely ‘objective’ and may change over time as
social, economic and political circumstances change. Many of the
justices of South Africa’s Constitutional Court have tentatively
acknowledged the open-ended nature of the language of the South
African Constitution. They have admitted that there may be a need to
refer to extra-legal values and texts, including the South African political
context and history, to justify their decisions.

Approaches to interpreting a constitution

In the first decision handed down by the Constitutional
Court of South Africa in S v Zuma and Others,
Kentridge J signalled an awareness of (but skirted) the
issue of what judges should do when confronted with a
constitutional text that contains open-ended and vague
phrases when he remarked:
I am well aware of the fallacy of supposing that general language
must have a single ‘objective’ meaning. Nor is it easy to avoid the
influence of one’s personal intellectual and moral preconceptions.
But it cannot be too strongly stressed that the Constitution does
not mean whatever we might wish it to mean.2

One of the most perplexing questions in law relates to

the manner in which judges should interpret the often
open-ended or even vague provisions of a constitution.
If judges merely make the constitution mean whatever
they wish it to mean, they will be accused of being
 politicians and not judges. If they are not constrained
by the text of the constitution or by other extra-legal
but objective criteria, their decisions may lack
legitimacy as judges are not elected and cannot be
seen to make up the meaning of the constitution as
they go along. This is why judges often state that they
are constrained by the text of the constitution and, if
the text is vague, why judges resort to factors such as
context or the history of a country to give meaning to
the provisions in a constitution.

In this chapter, therefore, we discuss the constitutional history of South

Africa, a history that has been dominated by colonialism and
apartheid and the resulting struggle for freedom and democracy
which finally led to the adoption of South Africa’s 1996 Constitution. We
explore the manner in which the South African Constitution came into
being and the nature of South Africa’s transition from an authoritarian
race-based autocracy to a constitutional democracy. We also explore
the current social, political and economic context within which the
Constitution must operate. We focus, in particular, on the legacy of
apartheid and the role of political parties in South Africa’s constitutional
democracy.3 We then briefly introduce the main features of the South
African Constitution and pose questions about how this Constitution
may be classified and how it should be interpreted.

1.2 The historical-legal context: from colonial conquest

to democracy
South Africa’s political history is often wrongly said to have begun in
1652 when Jan van Riebeeck arrived in South Africa and the process of
colonisation formally commenced. Similarly, South Africa’s
constitutional history is often wrongly said to have begun in 1910 when
the South African state in its present form was created and the Union of
South Africa came into existence with the passing of the Union of South
Africa Act, 1909 (the South Africa Act or the Union Constitution) by the
British Parliament.4 This decidedly colonial approach to history, which
views history through the eyes of those settlers who arrived in South
Africa from Europe, is neither tenable nor credible. It ignores the fact
that Khoi-San-speaking hunters and herders already occupied western
parts of the country, while agro-pastoralists occupied large parts of the
eastern part of the country at the time when settlers from Western
Europe arrived at the southern tip of Africa.5
However, it is difficult not to revert to colonially imposed markers
when discussing the historical context out of which the modern
democratic state in South Africa emerged. There are a number of
reasons for this. First, pre-colonial history was never written down.
Second, there is insufficient clarity about the multitude of governing
structures through which pre-colonial indigenous populations of
South Africa governed themselves. Third, South Africa with its current
borders legally came into existence only in 1910. In the section that
follows, nevertheless, we attempt to draw attention to the fact that
South Africa’s political and legal history can be viewed through various
lenses and that we cannot ignore the legal pluralistic nature of South
African society and legal culture when discussing the historical context
out of which South Africa’s 1996 Constitution emerged. This centring of
colonial history, however, does reflect the absence of any meaningful
decolonisation of knowledge in South Africa.

1.2.1 Pre-Union developments

It is important to understand the complex nature of pre-democratic
governance structures in South Africa as these structures continue to
have an effect on South Africa’s democratic constitutional order. A
number of centrally governed societies emerged in the geographical
territory now known as South Africa from the seventeenth century
onwards. In Cape and Natal colonies, the development of constitutional
forms mirrored those of other British colonies with large European
settler populations. What eventually emerged in these colonial enclaves
in the nineteenth century were systems in which locally elected
executives governed these territories, but subject to the British-
appointed Governor-General power to approve legislation. The
Governor-General, in effect, had a veto power over bills which could be
exercised on the advice of the British government. Moreover, the British
government also had the power to ‘disallow’ bills passed by the colonial
legislatures within a period of one year from the date the bill was
passed. This in effect nullified these bills.6 The governance structures
therefore mirrored the Westminster system in place in Britain although
the British government retained final control over the colonies.
Nevertheless, these governing structures firmly established the
principle of the supremacy of the legislature on South African soil.7 This
meant that the legislature, by and large, had a free hand to pass any
legislation it wished as long as it followed the requisite procedures.
Courts were not empowered to test the laws passed by the legislature
against a bill of rights and could not declare legislation invalid even
where that legislation infringed on the rights of citizens.
To the north of the Cape, two Boer Republics (the Orange Free State
and the South African Republic, also known as the Transvaal Republic)
emerged in the mid-nineteenth century. Both these Republics rejected
the Westminster system described above. Under the influence of the
constitutions of the United States, France and the Netherlands, the Boer
Republics embraced a form of governance based on the principle of the
separation of powers with directly elected presidents. The Orange Free
State also had a justiciable Bill of Rights that guaranteed rights of
peaceful assembly, petition, property and equality before the law. In
addition, rigid rules were prescribed for the amendment of the Orange
Free State Constitution of 1854.8
However, despite the fact that the Orange Free State Constitution
formally recognised the right of courts to review legislation, this power
was used only once. Moreover, the protections in the Constitution were
of limited application as they were interpreted to be reserved for white
males only.9 This early tentative experiment in constitutionalism was
thus by a notion of racial citizenship which later came to dominate
constitutional law and practice in a unified South Africa.10
 In the South African Republic (the Transvaal), the Constitution of
1858 was blatantly racist. It provided that ‘the People desire to permit
no equality between coloured people and white inhabitants, either in
Church or State’.11 In the Transvaal, an attempt in 1892 by Chief Justice
JG Kotze to review and strike down legislation passed by the legislature
(Volksraad) on the basis that it conflicted with the Constitution created
a constitutional crisis.12 President Paul Kruger rejected the right of the
court to review and strike down legislation and eventually fired the
Chief Justice. When swearing in a new Chief Justice, President Kruger
warned the judges that ‘the testing right is a principle of the devil’, which
the devil had introduced into paradise to test God’s word.13
Those parts of South Africa not directly subjected to colonial
domination exhibited various forms of indigenous governance
structures loosely centred on the concept of chiefdoms. These
chiefdoms usually had a similar governance hierarchy consisting of a
chief, a paramount chief or a king. Below them were headmen who
were representatives of leading families. Headmen were responsible for
affairs within a defined geographical area and reported to the chief. The
chief, together with his headmen, constituted a council. Below the chief
and headmen were family or kraal heads. The chief’s role was to
adjudicate disputes fairly and to provide for the well-being of his people
by applying a living customary law which developed through its
application by chiefs. To empower the chief to meet his obligations, he
was vested with secular powers and was granted certain privileges that
he was entitled to exercise.14 The selection of a chief was rooted in
ancestry and traditional leaders were born into the role rather than
selected and trained. Although chiefs had wide powers, these were not
unlimited. Chiefs were generally required to consult with their
councillors in certain matters and were always required to act for the
benefit of their people.15 Potential challenges to the office of the chief
also acted as an incentive to ensure that chiefs acted appropriately.16
The emergence of the Zulu Kingdom, which eventually spanned
large parts of what is now known as KwaZulu-Natal, represents a
modification to this governance model. During the reign of King Shaka
in the early part of the nineteenth century, the King merged some 300
formerly independent chiefdoms into the Zulu Kingdom. Shaka ordered
his warriors to remain unmarried and controlled the organisation of his
military regiments. This further weakened traditional kinship ties and
the powers of the elders in favour of his central authority. However, the
purported authoritarian rule of Shaka still relied on a delicate system of
delegated chiefly powers. Shaka was assisted by a staff of chiefs who
surrounded him in the royal kraal (a territorial dwelling unit with the
house of the King located at the centre). While Shaka needed the chiefs
to execute his will, he was careful to limit their effective powers and it is
argued that he stirred rivalry among them so that they would check one
another but never dispute his will.17

Different viewpoints on the evaluation of

indigenous governance structures
There is a fundamental difference between the
governance structures adopted by the indigenous
societies of South Africa and the governance structures
imposed by the British colonial regime. Some
commentators argue that the indigenous structures
valued community and the relationships between
individuals and groups. This mitigated what may
appear from the vantage point of the modern state to
be an autocratic and undemocratic arrangement.
Chiefs relied on the goodwill of their subjects, so it is
argued, and hence were required to rule wisely and
humanely. Where this did not happen, chiefs could be
removed and this acted as a check on the power of the
chiefs. Others point to the essentially patriarchal
nature of the arrangement and contend that the
arrangement was, at the very least, deeply sexist as it
negated the role of women in society.
When evaluating the various governance structures
of this era, it is difficult to do so except through a
 distorted twenty-first century lens. However, it can be
argued that the governance structures of traditional
indigenous societies in South Africa have something to
offer a South African constitutional law scholar as they
are often said to have been based on a kind of
communalism. This indirectly finds resonance in the
co-operative government provisions in the modern
South African Constitution. Nevertheless, if we judge
these structures from the modern-day vantage point,
they may seem problematic as they are not based on
the same democratic principles that we take for
granted in a modern constitutional state.

The indigenous governance structures and the customary powers of

traditional leaders described above remained largely intact as the
British extended their colonial domination across southern Africa.
Nevertheless, over time – as the territorial expansion of colonial
governments proceeded apace – indigenous South Africans were
increasingly subjected to the authority of the colonial powers. This led
to a situation in which colonial governments became the primary
source of the traditional leader’s authority.
In 1894, the Glen Grey Act18 was passed in the Cape Colony. This Act
effectively excluded the vast majority of Africans from the Cape
Parliament. It also weakened the authority of the system of chiefs by
replacing them with a system of government-appointed district
councillors. In addition, the Act introduced separate ‘reserve’ areas
where Africans were supposed to stay if they were not selling their
labour to white-owned institutions in cities and towns. The Act speeded
up the dispossession of indigenous land.19 It assigned certain
geographical areas for use by blacks and others for whites under a
distorted version of the communal system of land tenure. The Glen Grey
Act, therefore, can be said to be a forerunner of the more all-
encompassing segregationist and apartheid measures, especially the
creation of territorially separate areas for African occupation after
1910.20
By 1903, the Native Affairs Commission (the ‘Lagden Commission’)
had developed a vision for a future South African union based on the
territorial segregation of black and white as a permanent mandatory
feature of public life.21 The Commission endorsed the practice of
creating ‘native reserves’ and accepted the notion that this involved
special obligations on their part to the colonial state. ‘Natives’ were seen
as having special rights to these pieces of reserved land as the ‘ancestral
land held by their forefathers’. ‘Native reserves’ were held communally
and administered by tribal chiefs who were said to have transferred
their sovereign rights over land and their absolute political authority to
the Crown through a process of ‘peaceful annexation’.22 The assumption
of the ‘peaceful annexation’ of land was a fiction which served the
interests of the colonial rulers. These developments set the scene for the
formation of a bifurcated state when the various territories now known
as South Africa were unified into the Union of South Africa in 1910 and
can clearly be seen as the precursor for the elaborate system of
apartheid.23

Recognition of traditional governance

structures in the Constitution
Constitutional law textbooks have often ignored the
governance structures of indigenous South Africans as
well as the customary law applied by chiefs during the
pre-Union period. They have tended to focus
exclusively on the imposition of the Westminster model
by the British and on the importation of Roman-Dutch
and English common law. This is not surprising as such
textbooks have been written from a Western
perspective.
Today, the Constitution partly recognises traditional
governance structures. However, as we shall see, these
traditional governance structures were transformed in
 their encounter with the colonial rulers and this
affected their development. These developments help
to explain the present arrangement in South Africa in
which traditional leaders and the application of
customary law are made subject to the provisions of
the 1996 Constitution.

1.2.2 The Union of South Africa and the bifurcated state

After the British defeated the armies of the Boer Republics during the
Anglo-Boer War of 1899–1902, the territory now known as South Africa
largely came under the influence of the British government. However,
as part of a policy of granting self-rule to white colonists in its various
colonies, Britain facilitated negotiations that led to the formation of the
Union of South Africa in 1910. Black South Africans were not invited to
take part in these negotiations. This process of negotiation resulted in
the drafting of the South Africa Act (the Union Constitution). This Act
brought together the four settler colonies – Cape, Natal, Orange Free
State and Transvaal – as well as the various indigenous groupings in
South Africa in a single unitary state known as the Union of South
Africa. The Constitution establishing the Union in essence granted
limited parliamentary democracy to the white minority (only men were
allowed the vote) within the borders of present-day South Africa.
However, this settlement largely ignored the political aspirations of
indigenous South Africans and subjugated the black majority to
autocratic administrative rule.
It is true that the drafters of the Union Constitution reached a
compromise that allowed the Cape to retain its provision for limited
voting rights for black citizens.24 However, the northern provinces were
allowed to exclude all participation by black South Africans in the
electoral process. The retention of this very limited franchise for black
South Africans in the Cape did not change the essentially racist and
paternalistic nature of the founding Constitution of South Africa.
African society was presented as essentially ‘traditional’ and was to be
governed by chiefs under the paternalistic ‘protection’ of the white
government.25 Thus section 147 of the Union Constitution stated that
the ‘control and administration of native affairs … throughout the Union
shall vest in the Governor-General in Council’. The Governor-General in
Council was given ‘all special powers in regard to native administration’.
This colonialism of a special type thus established a Westminster-
style parliamentary system. Under this system, a pseudo-democratic
white state co-existed with an authoritarian order in which the majority
of the country’s people lived under a classic system of colonial indirect
rule.26 Traditional versions of South Africa’s constitutional history
produced before 1994 ignore this bifurcated nature of the South African
state between 1910 and 1994.27
The Union Constitution followed the British model and opted for a
Westminster-style system of parliamentary government and a form of
parliamentary supremacy. The Union Parliament consisted of two
Houses, the House of Assembly and the Senate. The House of Assembly
was directly elected by the limited number of male citizens who had the
right to vote. The members of the Senate were partly indirectly elected
by the House of Assembly and partly nominated. South Africa was also
established as a unitary state rather than a federal state. However, the
four former colonies were retained in the form of four provinces and
each province had equal representation in the Senate.
The most striking aspect of the Union Constitution, however, was
the fact that it retained a system of parliamentary supremacy. Despite
this, the South African legislature was restrained, initially at least, in two
important ways which imposed limits on the sovereignty of the newly
created Parliament.
First, until the British Parliament adopted the Statute of Westminster
in 1931, Parliament was, in theory, still bound by the provisions of the
Colonial Laws Validity Act, 1865.28 This meant that the Union Parliament
could not legislate extraterritorially or in a manner repugnant to any Act
of the British Parliament which had been made applicable in South
Africa. All bills passed by the South African Parliament had to be sent to
the Governor-General (as representative of the British Crown) for
assent before they could become law. In practice, little or no control was
ever exercised and the powers referred to above were never used before
they were scrapped by the Statute of Westminster.29
Second, a small number of clauses in the Union Constitution
required Parliament to use a special procedure before they could be
amended. These entrenched sections protected the limited franchise for
blacks in the Cape30 and the guarantee of the equality of the two official
languages (English and Dutch).31 Thus, section 152 of the Union
Constitution required that any alteration of the above sections (as well
as section 152 itself ) would be valid only if the bill was passed by both
Houses of Parliament sitting together and agreed to at the third reading
of the bill by not less than two-thirds of the total number of members of
both Houses.32 Despite the procedural protection of the limited
franchise, all African voters (those who lived in the Cape Province and
had retained their right to vote in the deal struck in 1909) were
nevertheless removed from the common voters’ roll and given separate
representation in 1936.33
The Union’s first full-blown constitutional crisis arose after the
National Party (NP) narrowly won the parliamentary election in 1948 on
the basis, among others, that it would impose absolute racial
segregation on South Africa. In 1951, the NP attempted to remove
‘coloured’ voters from the common voters’ roll by adopting the Separate
Representation of Voters Act.34 A group of voters challenged the Act on
the basis that the procedure required by section 152 of the Union
Constitution was not used. In Harris and Others v Minister of the Interior
and Another,35 a unanimous Appellate Division (AD) found that the
Separate Representation of Voters Act was of no force because the
correct procedure had not been used to pass the amendments. After
further legislative and judicial manoeuvres, in which the NP was again
thwarted, it increased the size of the AD from five to 11 judges and also
increased the size of the Senate.
When this legislative move was again challenged in Collins v
Minister of the Interior,36 10 of the 11 judges upheld the challenged
amendments to the Union Constitution.37 This brought an end to the
limited voting rights enjoyed by black South Africans and until partial
reforms were introduced in 1983, only white South Africans could vote
in parliamentary elections. When South Africa became a Republic in
1961, a new constitution was adopted which confirmed the supremacy
of Parliament. Section 59(1) of the 1961 Constitution thus stated that:
‘Parliament shall be the sovereign legislative authority in and over the
Republic, and shall have full power to make laws for the peace, order
and good government of the Republic’. This extreme form of
parliamentary supremacy, which became dominant in South Africa
after 1948 and the rise of Afrikaner nationalism, is said to have ‘brought
about the debasement of the South African legal system’ and brought it
to its ‘logical and brutal conclusion’ to the detriment of a respect for
human rights.38 However, it may well be argued that it was the
combination of this extreme form of parliamentary sovereignty and the
inherently racist nature of the bifurcated constitutional system which
gave the South African state its particularly brutal character before the
advent of democracy in 1994.

An extreme version of parliamentary

sovereignty
In Sachs v Minister of Justice; Diamond v Minister of
Justice,39 the AD had to consider the validity of a
banning order issued by the Minister in terms of the
relevant provisions of an applicable Act. Banning
orders prohibited a person from being present in
specific areas because the Minister was satisfied that
the person ‘is in any area promoting feelings of
hostility between the European inhabitants of the
Union on the one hand and any other section of the
inhabitants of the Union on the other hand’.40 Banning
orders were a powerful tool used by the authorities to
restrict the political activities of those opposed to the
policies of the government. In rejecting the challenge
to the banning order, Stratford ACJ made the following
 statement about the nature of parliamentary
sovereignty in South Africa:
[O]nce we are satisfied on a construction of the Act, that it gives
to the Minister an unfettered discretion, it is no function of a
Court of law to curtail its scope in the least degree, indeed it
would be quite improper to do so. The above observation is,
perhaps, so trite that it needs no statement, yet in cases before
the Courts when the exercise of a statutory discretion is
challenged, arguments are sometimes advanced which do seem
to me to ignore the plain principle that Parliament may make any
encroachment it chooses upon the life, liberty or property of any
individual subject to its sway, and that it is the function of courts
of law to enforce its will.41

The view expressed by Stratford ACJ represents an

extreme version of the nature of parliamentary
sovereignty. It is also far less compatible with the
notion of democracy than a view which limits the
power of the legislature to adopt legislation that
encroaches on the rights of citizens and allows judges
to review and set aside legislation and the actions of
members of the executive if this is needed to protect
and safeguard the rights of individuals. This is because
democracy itself can be subverted if the rights of
citizens to exercise their democratic rights are not
protected.

After the Union of South Africa was established in 1910, the bifurcated
nature of the South African state led to the adoption of several laws by
the Union Parliament aimed at developing legal mechanisms to
entrench further a classic form of indirect colonial rule. The Black
Administration Act (BAA)42 was a lynchpin in this system which
reaffirmed the rule of chiefs within so-called ‘reserves’ and
subordinated their rule to the power of the ‘white’ government and its
officials.43 The BAA made the Governor-General the supreme chief with
the authority to create and divide tribes and appoint any person he
chose as chief or headman – even in the face of popular opposition from
a community.44 The BAA to some extent built on the Glen Grey Act and
further subverted traditional governance structures based on chiefs
selected via kinship. It allowed for the appointment of traditional
leaders from outside the ruling families, creating scope for a body of
government lackeys, who were compliant with entrenched party-
political interests, to assume the role of traditional leader. It has been
remarked that the BAA:
was intended to shore up the remains of chieftaincy in a country-wide policy of
indirect rule, which would allow for [racial] segregation in the administration
of justice. The policy was aptly named ‘retribalisation’, giving chiefs the
semblance of power and hoping that this would safeguard the allegiance and
acquiescence of the Reserve residents.45

The BAA conferred civil jurisdiction on chiefs who could apply

customary law to their subjects in most private law civil disputes.
However, in practice, Africans had a choice of courts to which they
could take their civil case – the magistrates’ courts or the chiefly
authority. The magistrates obviously wielded much more power than
the chiefs in relation to the central government, but the chiefs were
given a niche in the local arm of administration which ‘they seized with
alacrity’.46
As the confidence of the ruling NP government grew in the years
after 1948, it stepped up political repression while simultaneously trying
to create a system based on ethnic nationalism within a tribal context.
Thus, the implementation of a system of indirect rule accelerated with
the adoption of the Bantu Authorities Act47 in 1951 and, by 1959,
legislation which created a system of homelands.48 The system divided
South Africa into several ‘self-governing’ territories where each ethnic
group was accommodated in a separate homeland (the former ‘native
reserves’). These homelands were envisaged as the sole mechanisms
through which Africans would be able to exercise their political
aspirations. People classified as ‘coloured’ or ‘Indian’ were not
accommodated in this system at all. Eventually, certain of the
homelands were granted ‘independent’ status49 but other homelands
never achieved or refused to take up an offer of ‘independence’. Chiefs
held half the seats in the legislative assembly of each homeland ex
officio and thus assured the leading parties of support.50
It is important to note that this social engineering had devastating
consequences for the traditional governing structures of indigenous
South Africans. It transformed chiefs by bringing them directly into the
service of the state. It became more and more difficult for chiefs to
claim legitimacy, to win respect from their followers and to implement
the provisions of the Bantu Authorities Act at the same time.51 With the
advent of democracy, the role of traditional leaders, and especially
chiefs, has become controversial given the manner in which the system
was manipulated during the colonial and apartheid eras. This role is
perceived to be inherently undemocratic and patriarchal as it is both
hereditary and reserved for men.52 However, despite concerns
surrounding the undemocratic essence of tribal leadership, it remains
an important part of South Africa’s cultural heritage which, despite
allegations of corruption, receives some popular support.53
By the late 1970s, the apartheid state had come under increasing
pressure both internally and externally as opposition and resistance to
apartheid and white minority rule increased and the struggle for
freedom by the black majority gathered momentum.54 In response, the
apartheid government of Prime Minister PW Botha (who became Prime
Minister in 1979) opted for a process of so-called ‘reform’ to try to
reincorporate people classified as ‘Indian’ and ‘coloured’ under the
apartheid system into the political system. This led to the 1983
Constitution55 which extended the franchise to coloureds and Indians in
a tricameral legislature.
This new constitutional system (whose introduction was fiercely
resisted by the majority of South Africans) created three separate
Houses of Parliament: one chamber for whites, one for Indians and one
for coloureds. The jurisdiction for each House was distributed
according to whether an issue dealt with an ‘own’ affair or ‘general’
affair. Own affairs were vaguely defined and were deemed to be matters
‘which specially or differentially affect a population group in relation to
the maintenance of its identity, traditions and customs’.56 Each House
was given powers to deal exclusively with these ‘own affairs’. ‘General
affairs’ were defined as matters which were not own affairs.57 The white
minority government retained control of this system through a
provision in the Constitution that stated that the State President took
the final decision on whether an issue dealt with an own affair or a
general affair.58
Despite these ‘reforms’, the African majority continued to be
excluded from the constitutional scheme. The apartheid government
maintained that South Africa would eventually be divided into one
section over which the tricameral Parliament would hold sway and the
several homelands which would obtain ‘independence’ and would
govern all Africans living within the original borders of the Union of
South Africa. Africans living outside the homelands were all deemed to
‘belong’ to one of the homelands and had no political rights in the areas
in which they actually lived. These ‘reforms’ backfired spectacularly and
resistance to the apartheid government became ever fiercer. Finally, in
1990, State President FW de Klerk lifted the restrictions placed on
liberation movements such as the African National Congress (ANC), the
South African Communist Party (SACP) and the Pan Africanist
Congress (PAC), and ordered the release of Nelson Mandela and other
liberation leaders from prison. The period of negotiations then
commenced.

1.3 The transition to democracy

1.3.1 The run-up to the first democratic election

During the period described in the previous section, various
organisations were formed to resist colonialism and apartheid. These
included not only the ANC and SACP already mentioned above, but
also the United Democratic Front (UDF) and large sections of the trade
union movement, as well as the PAC and the Black Consciousness
Movement, including the Azanian People’s Organisation (AZAPO).
From a constitutional law perspective, the adoption of the Freedom
Charter by liberation organisations aligned with the non-racial
movement – the ANC, SACP, the Natal Indian Congress and others59 –
represents a milestone. This Charter contained claims and expressed
the aspirations of large sections of the South African citizenry
oppressed by the apartheid regime, formulated in the format of a
charter of rights with a strong emphasis on non-racialism. As such, the
Freedom Charter is often seen as one of the founding documents of the
human rights culture which later found expression in the Bill of Rights
contained in South Africa’s 1996 Constitution.60

Extracts from the Freedom Charter

The People Shall Govern!
Every man and woman shall have the right to vote for and to
stand as a candidate for all bodies which make laws;
All people shall be entitled to take part in the administration of
the country;
The rights of the people shall be the same, regardless of race,
colour or sex …

The People Shall Share in the Country’s Wealth!

The national wealth of our country, the heritage of South Africans,
shall be restored to the people;
The mineral wealth beneath the soil, the Banks and monopoly
industry shall be transferred to the ownership of the people as a
whole …

The Land Shall be Shared Among Those Who Work It!

Restrictions of land ownership on a racial basis shall be ended,
and all the land re-divided amongst those who work it to banish
famine and land hunger;
The state shall help the peasants with implements, seed, tractors
and dams to save the soil and assist the tillers;
Freedom of movement shall be guaranteed to all who work on the
land;
All shall have the right to occupy land wherever they choose;
People shall not be robbed of their cattle, and forced labour and
farm prisons shall be abolished.

All Shall be Equal Before the Law!

No-one shall be imprisoned, deported or restricted without a fair
trial;
No-one shall be condemned by the order of any Government
official;
The courts shall be representative of all the people …

All Shall Enjoy Equal Human Rights!

 The law shall guarantee to all their right to speak, to organise, to
meet together, to publish, to preach, to worship and to educate
their children;
The privacy of the house from police raids shall be protected by
law …

There Shall be Houses, Security and Comfort!

All people shall have the right to live where they choose, be
decently housed, and to bring up their families in comfort and
security;
Unused housing space shall be made available to the people;
Rent and prices shall be lowered, food plentiful and no-one shall
go hungry;
A preventive health scheme shall be run by the state;
Free medical care and hospitalisation shall be provided for all,
with special care for mothers and young children …

It is often said that the Freedom Charter is the

intellectual source for many of the provisions contained
in South Africa’s Bill of Rights. Like the Bill of Rights,
the Freedom Charter addresses both traditional civil
liberties such as the right to vote and the right to a trial
as well as social and economic rights concerns relating
to housing and land, among others. Although the
historical and political context in which the document
was formulated influenced the content of the
provisions of the Charter and the way in which the
demands were formulated, it is remarkable that it
addresses many of the same concerns addressed in
the Bill of Rights.

A second important milestone was reached in 1988 when the ANC – one
of the prominent organisations fighting for liberation – published its
‘Constitutional Guidelines for a Democratic South Africa’61 The
Guidelines, which drew inspiration from the Freedom Charter, were
issued to encourage national debate on the form that a post-apartheid
society should take. According to the Guidelines: ‘The constitution shall
include a Bill of Rights based on the Freedom Charter. Such a Bill of
Rights shall guarantee the fundamental human rights of all citizens
irrespective of race, colour, sex or creed and shall provide appropriate
mechanisms for their enforcement.’62
As Dugard notes, nothing further is said about the ‘mechanisms for
enforcement’, which was probably the result of internal divisions within
the ANC on whether the courts or a special commission answerable to
Parliament would be best suited to monitor a bill of rights.63 The
publishing of the Guidelines was nevertheless significant because it
demonstrated a shift in the thinking of the dominant liberation
movement who now for the first time embraced the idea of including a
bill of rights in a post-apartheid constitution. The move arguably also
bolstered the standing of the ANC as the pre-eminent liberation
movement in the eyes of the international community. It was not
surprising, therefore, when a year later the ANC and its allies secured
the adoption by a subcommittee on Southern Africa of the Organisation
of African Unity (OAU) – later renamed the African Union – of the
Harare Declaration. The Declaration was also endorsed by the Non-
Aligned Movement (NAM), the Frontline States and (with some
modification) the General Assembly of the United Nations, further
internationalising the conflict in South Africa and bringing
international pressure to bear on the apartheid state. The Declaration
urged the apartheid regime to take measures to create a climate for
negotiations, to put an end to apartheid and define a new constitutional
order based on a set of democratic principles. These principles included
the following:
• All its people have the right to participate in the government and
administration of the country on the basis of a universal suffrage,
exercised through one person one vote, under a common voters’
roll.
• All shall have the right to form and join any political party of their
choice provided that this is not in furtherance of racism.
• All shall enjoy universally recognised human rights, freedoms and
civil liberties, protected under an entrenched Bill of Rights.
The Declaration also elaborated on the conditions for the negotiations
to start, which included the need for the apartheid regime to release all
political prisoners and lift the ban on all political parties and
movements.64 The internationalisation of the conflict, coupled with the
impact of economic sanctions as well as internal resistance, forced the
minority regime to take steps that would ultimately lead to the
negotiation of a transition to democracy. In the telling of South Africa’s
Constitutional Court, ‘remarkably’, the country’s political leaders
‘managed to avoid a cataclysm by negotiating a largely peaceful
transition from the rigidly controlled minority regime to a wholly
democratic constitutional dispensation’.65 Tentative and highly secretive
talks between members of the ANC and the NP commenced in mid-
1980. When FW de Klerk became President in 1989, he was able to build
on the previous secret negotiations with the imprisoned Nelson
Mandela. The first significant steps towards formal negotiations took
place in February 1990 with the unbanning of the ANC and other
organisations such as the PAC by State President FW de Klerk, and the
release of political leaders such as Nelson Mandela from prison.66 Exiled
leaders of the ANC and the PAC returned to South Africa and eventually
negotiations about the transition to democracy commenced.
In the run-up to the start of these negotiations, the ANC attempted
to seize the initiative from the apartheid regime by publishing its
proposed constitutional principles in a discussion document. This
document built on the organisation’s Constitutional Guidelines
published in 1988. Among the guidelines contained in this discussion
document was the call for a non-racial democratic state with a bill of
rights, an independent judiciary and other related issues.67 The
document proposed that the Constitution ‘should create mechanisms
for enforcing’ the rights in the Bill of Rights and that the courts should
have a primary role ‘in ensuring that the rights are operative’.68 This
presented another subtle shift on the part of the ANC who for the first
time suggested that the provisions of the Bill of Rights could be made
judicially enforceable. To some extent this was a surprise move as the
apartheid judiciary had been thoroughly discredited and for most
observers it seemed inconceivable that any of the liberation movements
would agree to entrust the enforcement of the provisions of a supreme
Constitution to the apartheid judiciary. Like many other sticking points,
this problem was eventually resolved by reaching a compromise about
the body empowered to enforce the supreme Constitution. But what
had now more or less been settled was that the Constitution would be
supreme and that an independent judicial body would be entrusted to
enforce it.

1.3.2 CODESA, the MPNF and the two-stage transition

The Congress for a Democratic South Africa (CODESA) was convened
in late 1991 and it was this body – comprising all the major political
formations in South Africa69 – which was tasked with the drafting of the
interim Constitution. CODESA was preceded by intense negotiations,
particularly between the NP and the ANC, to try to reach agreement on
the basic premises that would guide the negotiating process. It is
important to note that at the time the NP government was still firmly in
power, controlling both the military and the police force who used
violence (and other illegal tactics) to suppress opponents of the
apartheid regime, while the forces of resistance wielded power mainly
through the union movement’s ability to organise strikes and the ability
of the ANC and the UDF to organise huge street protests. As neither side
was able to subdue the other and win a decisive victory, both sides
decided to negotiate a transition to democracy. After many preliminary
‘confidence-building’ steps, the parties agreed on a Declaration of
Intent paving the way for CODESA to commence on 21 December 1991.
This Declaration – mirroring some of the elements contained in the
Harare Declaration – recorded a common view that the new
constitution would ensure:70
a) that South Africa will be a united, democratic, non-racial and non-sexist
state in which sovereign authority is exercised over the whole of its
territory;
b) that the Constitution will be the supreme law and that it will be guarded
over by an independent, non-racial and impartial judiciary;
c) that there will be a multi-party democracy with the right to form and join
political parties and with regular elections on the basis of universal adult
suffrage on a common voters roll; in general, the basic electoral system
shall be that of proportional representation;
 d) that there shall be a separation of powers between the legislature, executive
and judiciary with appropriate checks and balances;
e) that the diversity of languages, cultures and religions of the people of South
Africa shall be acknowledged; and
f) all shall enjoy universally accepted human rights, freedoms and civil
liberties including freedom of religion, speech and assembly protected by
an entrenched and justiciable Bill of Rights and a legal system that
guarantees equality of all before the law.71

Despite this early agreement on the basic framework for negotiations,

negotiations stalled in June 1992 when the ANC walked out in protest at
the slow pace of progress. CODESA was eventually replaced by the
Multi-Party Negotiating Process (MPNP),72 which continued to
negotiate an interim Constitution amid widespread violence and
allegations by opponents of the NP regime that it was using its state
power to undermine the negotiations. The MPNP nevertheless finally
adopted the interim Constitution late in 1993 before it was ratified by
the apartheid Parliament.
The negotiating process was not without its difficulties as the major
political parties had very different visions about the transition to
democracy. On the one hand, the ANC was committed to the drafting of
a constitution by a democratically elected body and the formation of a
majority government. On the other hand, the NP favoured the drafting
of a final constitution by the unelected MPNP, followed by a long
transitional government with power shared among the most popular
parties in a manner that would effectively provide a veto for coalition
parties. After many twists and turns, the ANC and the NP managed to
reach a compromise model for the transition to democracy. While the
ANC and the NP agreed that it would be necessary to draft a
constitution containing certain basic provisions, those who negotiated
this commitment were confronted, however, with two problems. As the
Constitutional Court explained:
The first arose from the fact that they were not elected to their positions in
consequence of any free and verifiable elections and that it was therefore
necessary to have this commitment articulated in a final constitution adopted
by a credible body properly mandated to do so in consequence of free and fair
elections based on universal adult suffrage. The second problem was the fear in
some quarters that the constitution eventually favoured by such a body of
 elected representatives might not sufficiently address the anxieties and the
insecurities of such constituencies and might therefore subvert the objectives
of a negotiated settlement. The government and other minority groups were
prepared to relinquish power to the majority but were determined to have a
hand in drawing the framework for the future governance of the country. The
liberation movements on the opposition side were equally adamant that only
democratically elected representatives of the people could legitimately engage
in forging a constitution: neither they, and certainly not the government of the
day, had any claim to the requisite mandate from the electorate.73

The impasse was resolved by a compromise – typical of the

constitution-making process – which required a programmed two-stage
transition from the apartheid state to a democratic state instead of an
outright transfer of power from the old order to the new. In the first
stage of the transition, the unelected negotiating parties at the MPNP
negotiated the interim Constitution which was adopted by the
apartheid Parliament in terms of the 1983 Constitution and which
became binding immediately after the first democratic election on 16
April 1994.74
The interim Constitution provided for the establishment of an
interim government of national unity and the country was governed on
a coalition basis with both the ANC and the NP represented in the
executive. This coalition government was provided for in clauses in the
interim Constitution that allowed for a form of power sharing among
the major political parties for a minimum period of five years. This
arrangement lapsed in 1999 – and there is currently no constitutional
obligation to share power. In the second stage, a Constitutional
Assembly was then to draft a final constitution after the first democratic
election.75

Table 1.1 The two-stage constitution-making process

Interim Constitution Final Constitution

Negotiated before the first democratic election by Negotiated after the first democratic election by the
unelected MPNP. elected Constitutional Assembly.

Contained power-sharing agreement allowing the ANC Does not provide for any formal power-sharing
and the NP to share power for five years and provided agreement – after the 1999 election the winner of
for two Deputy Presidents – one from the ANC and the election governs the country on its own.
one from the NP.
Contained 34 Constitutional Principles and provisions Certified by the Constitutional Court as complying
to regulate the adoption of a final constitution, with 34 Constitutional Principles, but only after it
including provisions for the certification of the was initially rejected by that Court and sent back to
constitution by a newly created Constitutional Court. the Constitutional Assembly for redrafting.

Contained a Bill of Rights protecting all basic human Contains an extensive Bill of Rights protecting both
rights. civil and political as well as social and economic
rights.

Chapter 5 of the interim Constitution prescribed the basic framework

and rules for the drafting of the final Constitution. Section 68(1)
provided that: ‘The National Assembly and the Senate, sitting jointly for
the purposes of this Chapter, shall be the Constitutional Assembly.’ This
means that – unlike the interim Constitution – the final Constitution
was drafted by democratically elected representatives serving as
members of Parliament. In terms of section 68(2), read with sections
68(3) and 73(1) of the interim Constitution, the democratically elected
Constitutional Assembly had to adopt a new constitutional text within
two years of the first sitting of the National Assembly. For such
adoption, section 73(2) required support by a majority of at least two-
thirds of all the members of the Constitutional Assembly. Section 71(2)
then required that: ‘The new constitutional text passed by the
Constitutional Assembly, or any provision thereof, shall not be of any
force and effect unless the Constitutional Court has certified that all the
provisions of such text comply with the Constitutional Principles
referred to in subsection (1)(a) [Constitutional Principles].’76 Given that
the apartheid judiciary had been fatally compromised by its
participation in the apartheid system, it could not be trusted with this
important task. It is for this reason that the interim Constitution
provided for an entirely new Constitutional Court. The interim
Constitution provided for a complex process for the appointment of the
11 judges of the Constitutional Court. The democratically elected
President was given the power to appoint the first head of the
Constitutional Court ‘in consultation with the Cabinet and after
consultation with the Chief Justice’.77 The President was also given the
power to appoint a further 4 of the 11 judges to the Constitutional Court
‘in consultation with the Cabinet and the Chief Justice.’78 The other six
judges were also appointed by the President ‘in consultation with the
Cabinet and after consultation with the President of the Constitutional
Court’ from a list of 10 names forwarded to the President by the newly
established Judicial Service Commission.79 This process for the
appointment of a newly created Constitutional Court allowed for the
creation of a Court that was staffed by judges not tainted by any close
association with the apartheid regime. Several of the new judges were
aligned with the struggle against apartheid with at least one – Albie
Sachs – having been a member of the ANC Constitutional Committee.
The Constitutional Principles, negotiated before the first democratic
election and thus included in the interim Constitution, contained wide-
ranging provisions. In addition, the relatively open-ended language
afforded considerable power to the Constitutional Court to interpret
and apply these provisions when it was called on to certify the final
Constitution. The basic structures and premises of a new constitutional
text contemplated by the Constitutional Principles were described as
follows by the Constitutional Court:
a) a constitutional democracy based on the supremacy of the Constitution
protected by an independent judiciary;
b) a democratic system of government founded on openness, accountability
and equality, with universal adult suffrage and regular elections;
c) a separation of powers between the legislature, executive and judiciary with
appropriate checks and balances to ensure accountability, responsiveness
and openness;
d) the need for other appropriate checks on governmental power;
e) enjoyment of all universally accepted fundamental rights, freedoms and
civil liberties protected by justiciable provisions in the NT [final
Constitution];
f) one sovereign state structured at national, provincial and local levels, each
of such levels being allocated appropriate and adequate powers to function
effectively;
g) the recognition and protection of the status, institution and role of
traditional leadership;
h) a legal system which ensures equality of all persons before the law, which
includes laws, programmes or activities that have as their objective the
amelioration of the conditions of the disadvantaged, including those
disadvantaged on grounds of race, colour or creed;
i) representative government embracing multi-party democracy, a common
voters’ roll and, in general, proportional representation;
j) the protection of the NT against amendment save through special
processes;
 k) adequate provision for fiscal and financial allocations to the provincial and
local levels of government from revenue collected nationally;
l) the right of employers and employees to engage in collective bargaining
and the right of every person to fair labour practices;
m) a non-partisan public service broadly representative of the South African
community, serving all the members of the public in a fair, unbiased and
impartial manner; and
n) security forces required to perform their functions in the national interest
and prohibited from furthering or prejudicing party political interests.80

The interim Constitution determined that the decision of the

Constitutional Court certifying that the provisions of the new
constitutional text complied with the Constitutional Principles would
be final and binding. It also prohibited any other court of law from
enquiring into or pronouncing on the validity of the text.81 It is
important to note that once the Constitutional Court had certified the
text of the final Constitution, compliance or non-compliance of any
aspect of the text with the Constitutional Principles could never be
raised in any court of law again. This means that the Constitutional
Principles, while of utmost importance in guiding the work of the
Constitutional Assembly and the process of certification by the
Constitutional Court, have played their role and cannot now be relied
on by any party who wishes to challenge an amendment to the
Constitution.

The adoption of the interim Constitution did

not herald the era of decolonisation
Tshepo Madlingozi contests the notion that ‘ANC-
aligned elites pursued an anti-colonial agenda’,
reflected in the Freedom Charter and later the ANC
Constitutional proposals. Madlingozi thus argues that
the adoption of the interim and then final constitutions
should not be seen as a decolonising moment. As an
alternative he proposes a ‘decolonisation approach to
 the Constitution and constitutionalism’ based on the
following two pillars:
The first is the contention that 1994 did not herald the era of
decolonisation. The argument here is that white domination
transmuted into white hegemony while the majority of black
people continue to be pariahs of South Africa. In contrast to
liberal and mainstream critical scholars, decolonisation scholars
do not regard truncated democracy, structural segregation,
institutionalised discrimination as well as the various
manifestation of social injustice as crises threatening the post-
colonial order. Rather, decolonisation scholars apprehend these
crises as symptoms of a dispensation that some regard as on-
going conquest while others designate it as neo-colonialism or
neo-apartheid. The second fundamental pillar of the
decolonisation movement is the thesis that on-going conquest or
neo-colonialism is constituted by, and constitutes, post-1994
constitutionalism. Flowing from these two pivotal pillars,
decolonisation scholars call for a post-conquest constitution. The
argument here is that only a post-conquest constitution will deal
decisively with what, from a constitutional perspective, I regard as
the three main legacies of settler colonialism and colonisation,
namely: (1) the colonial state form and, conversely, the eternal
subjugation of indigenous sovereignties; (2) the entrenchment of
a world of apartness and the deliberate failure to resolve the
National Question; and (3) the continuing subordination of
African lifeworlds and their epistemologies and jurisprudences.82

1.3.3 Drafting and adoption of the final 1996 Constitution

The 1994 election – in which the Inkatha Freedom Party (IFP) along
with all other major parties decided to take part after a last-minute deal
– delivered an overwhelming majority for the ANC. However, the ANC
did not gain the two-thirds majority required to write the Constitution
without the support of other political parties. Table 1.2 indicates the
final election results and the number of seats gained by each party in
the National Assembly.
Table 1.2 The final 1994 election results 83
Party Votes % Seats
African National Congress (ANC) 12 237 655 62,65 252

National Party (NP) 3 983 690 20,39 82

Inkatha Freedom Party (IP) 2 058 294 10,54 43

Freedom Front (FF) 424 555 2,17 9

Democratic Party (DP)84 338 426 1,73 7

Pan Africanist Congress (PAC) 243 478 1,25 5

African Christian Democratic Party (ACDP) 88 104 0,45 2

Given that the ANC did not obtain a two-thirds majority and because its
negotiators were inclined to seek consensus, it tried hard to gain the
necessary support for the various provisions of the Constitution from its
long-standing opposition in the negotiating process, the NP. An
enormous public participation programme and a programme of
political discussions were also launched to ensure popular participation
in the negotiating process which, it was believed, would lead to popular
acceptance of the outcome reached.85 Despite the Assembly’s
commitment to transparency, meeting away from the watchful eye of
the press was probably essential to resolve some of the most
fundamental disagreements between the parties. Technical legal
advisers also played an important role in formulating alternative
options relating to some of the most controversial clauses.86 However, it
is widely accepted that the consensus, which ultimately emerged,
favoured the dominant party – the ANC.87
The interim Constitution contained several mechanisms to break
any deadlocks in the negotiations. A panel of constitutional experts,
consisting of lawyers, was empowered to advise the Assembly to try to
resolve deadlocks. The interim Constitution also provided that if a draft
constitution did not command two-thirds of the vote but did gain the
support of the majority of the members, it could nevertheless become
the country’s constitution if it was supported by 60% of the voters in a
referendum.88 However, neither of the major parties was keen to resort
to the referendum option and eventually the Constitutional Assembly
voted to pass the new Constitution with only two no votes and 10
abstentions.89

Was the public participation programme

influential in the constitution-making
process?
In a submission to the Constitutional Assembly,
Sampson Moholoane – one of the more than two
million South Africans who made submissions to the
Constitutional Assembly – wrote:
I want to stress one area which I believe as a citizen of South
Africa one should have access to at all times. That is a welfare
programme that will leave no South African from being able to
afford three square meals a day. It must be a citizen’s right to be
able to have shelter and food even when he is not working, even if
he is a destitute. The new Constitution must make this
compulsory …90

Some commentators argue that the public

participation programme run by the Constitutional
Assembly was not decisive in influencing the form and
content of the provisions of the final Constitution as
these submissions often contained vague wish lists
concerned with problems of poverty and a low
standard of living. Others point to the set of social and
economic rights (discussed in chapter 16) as proof
that the process did play an important role in giving
voice to the aspirations of ordinary people like
Sampson Moholoane in the drafting of the
Constitution.

After the Constitutional Assembly had adopted the final Constitution,

the document was submitted to the Constitutional Court for
certification. All political parties involved in the negotiations, except for
the ANC and the PAC, lodged objections to the text with the
Constitutional Court. Because the document had emerged through
negotiations, many of these parties were not happy with certain clauses
in the draft text and challenged these provisions in the hope that the
Constitutional Court would refuse to certify the text for failing to comply
with the 34 Constitutional Principles.
The Constitutional Court saw its task as measuring the text of the
final Constitution against the Constitutional Principles to determine
whether the text complied with those principles. The Court held that the
Constitutional Principles had to be ‘applied purposively and
teleologically to give expression to the commitment “to create a new
order” based on “a sovereign and democratic constitutional state” in
which “all citizens” are “able to enjoy and exercise their fundamental
rights and freedoms”’.91 The Principles therefore had to be interpreted
holistically and in a manner that was not too technically rigid.92 The
Constitutional Court evaluated the text of the final Constitution in two
distinct ways. First, it asked whether the basic structures and premises
of the final constitutional text were in accordance with those
contemplated by the Constitutional Principles.93 In Certification of the
Constitution of the Republic of South Africa, 1996,94 the First Certification
judgment, the Constitutional Court found that the text did comply with
the structural requirements. The Court then proceeded to consider the
details of the text and found that it was not compatible with the
Constitutional Principles on nine discrete grounds. It also set out in
fairly unambiguous terms the changes that were necessary if the
Constitution was to meet the test of the Principles.95 This meant that the
Constitutional Assembly was found to have adopted an
unconstitutional Constitution and that the Assembly had to amend the
text to comply with the Constitutional Court judgment. Although the
Constitution was adopted by a democratically elected body, the
Constitutional Court had the final say on whether the provisions agreed
on by this body were compliant with the Constitutional Principles
negotiated by the unelected MPNP.
 As soon as the Constitutional Court decision was handed down, the
Constitutional Assembly reassembled and amended the Constitution as
required by the Constitutional Court judgment. The Constitutional
Court finally certified the amended draft of the Constitution in
Certification of the Amended Text of the Constitution of the Republic of
South Africa, 1996, the Second Certification judgment, as being
compliant with the 34 Constitutional Principles in December 1996.96
President Nelson Mandela signed the final version of the 1996
Constitution on 10 December 1996 and it came into effect on 4
February 1997. It is this text – and its subsequent amendments – which
forms the subject of this book.

The unique birth of the 1996 Constitution

Some commentators and politicians have argued that
the way in which South Africa’s final Constitution came
into existence was unique in the world. A newly created
Constitutional Court actually declared unconstitutional
a Constitution drafted by a democratically elected
constitution-making body. However, so they argue, this
approach represented a wise compromise that helped
to allay the fears of the minority NP but that ultimately
allowed the dominant ANC to have a determinative
influence on the text finally agreed to and adopted.
Perhaps, they say, the text would not have looked so
very different even if the Constitutional Assembly had
not been required to comply with the 34 Constitutional
Principles. This is because neither the NP nor the ANC
could muster the support of two-thirds of the members
of the National Assembly to push through their own
agendas and were therefore forced to make
compromises.
1.4 The South African Constitution of 1996

1.4.1 The transformative nature of the Constitution

Formally, the South African Constitution, adopted by the Constitutional
Assembly in 1996, creates a sovereign democratic state founded on the
values of human dignity and the advancement of equality, non-
racialism and non-sexism, the supremacy of the Constitution, the rule
of law, universal adult suffrage and a multi-party system of democracy
in which free and fair elections are held regularly.97 Unlike the
Westminster-style constitutions of the colonial and apartheid eras,
parliamentary sovereignty has been replaced by constitutional
sovereignty. This means the Constitution is the supreme law of the
Republic – law or conduct inconsistent with it is invalid and the
obligations imposed by it must be fulfilled.98 It contains a detailed Bill of
Rights that sets out a list of civil, political, social and economic rights.
The Bill of Rights also places both a negative and a positive obligation
on the state and – in some cases – a further obligation on private
individuals and institutions, to respect, protect, promote and fulfil the
rights in this Bill of Rights.99
The courts – with the Constitutional Court at the apex – are the
guardians of the Constitution in general and the Bill of Rights in
particular. They have the power to declare invalid any act or any
legislation inconsistent with it. To this end, the Constitution sets up
three branches of government (the legislature, the executive and the
judiciary) and a system of separation of powers between the three
branches. It also guarantees the independence of the judicial branch in
relation to the other two branches to allow the judiciary to interpret and
enforce the law and the provisions of the Constitution without fear,
favour or prejudice.
The Constitution is avowedly a democratic one, guaranteeing the
right of citizens freely to make political choices. This includes the
specific rights to form a political party, to participate in the activities of
that party and to campaign for a party or cause. Moreover, citizens have
the right to free, fair and regular elections for any legislative body, as
well as the right to stand for and hold public office and vote in those
elections.
The Constitution also recognises the institution, status and role of
traditional leadership according to customary law. It makes provision
for the functioning of a traditional authority that observes a system of
customary law, subject to any applicable legislation and customs. The
Constitution also enjoins courts to apply customary law when that law
is applicable, but always subject to the Constitution and any legislation
that specifically deals with customary law.100 In addition, the
Constitution provides authority for various legislatures to adopt
legislation that provides for a role for traditional leadership as an
institution at local level on matters affecting local communities. To deal
with matters relating to traditional leadership, the role of traditional
leaders, customary law and the customs of communities observing a
system of customary law, national or provincial legislation may provide
for the establishment of houses of traditional leaders and national
legislation may establish a council of traditional leaders.101
We will discuss these technical aspects of the Constitution in detail
in subsequent chapters of this book. However, it is important to note
that we must also view the Constitution of 1996 through a less
formalistic lens to capture the unique nature of the document and to
come to grips with the manner in which the Constitutional Court has
interpreted its provisions. In particular, we must be alert to the fact that
the Constitution was written in response to the social, economic and
political history of South Africa and is often described as a
transformative Constitution,102 a document committed to social,
political, legal and economic transformation.
In fact, the transformative nature of the South African Constitution
has been confirmed in several judgments of the Constitutional Court.103
But what does this mean in practice? The Constitution is said to have set
itself the mission of assisting with the transformation of society in the
public and private spheres. It rejects ‘that part of the past which is
disgracefully racist, authoritarian, insular, and repressive’ and facilitates
a move towards a more democratic, universalistic, caring and
aspirationally egalitarian society.104 South African constitutionalism
thus attempts to transform our society from one deeply divided by the
legacy of a racist and unequal past into one based on democracy, social
justice, equality, dignity and freedom.105
Exactly how the end product of this metamorphosis should look and
when, if ever, it will be achieved must necessarily remain uncertain and
dependent on the outcomes of this continuous interaction. However,
the outcome should simultaneously not be conceived as so vague as to
preclude meaningful and deliberate participation in the process.
Traditional liberal constitutions are said to authorise, regulate and
check the exercise of public power, but supposedly allow voters and
politicians to decide in which direction a society will move and at what
pace that movement will occur. By contrast, the South African
Constitution is said to contain a commitment to creating a society that
will look fundamentally different from the one that existed at the time
when the Constitution was being drafted. When interpreting the text of
the Constitution, it is therefore necessary to look both backward and
forward. We need to look backwards at the history of South Africa and
to ask what negative aspects of our past this document aimed to address
and to transform, to what extent the transformation was required and at
what pace. At the same time, the Constitution also signals a
tentativeness, suggesting that it is a permanent work-in-progress,
always looking forward, always subject to revision and improvement to
try to achieve the society it envisages.106
This vision of the transformative nature of the Constitution is at least
partly derived from the text of the Constitution itself. The text
acknowledges that the new dispensation arose in a particular historical
context and requires an acknowledgement of the effects of past and
ongoing injustice. The notion that the Constitution is a transformative
document is also captured by referring to it as a post-liberal document.
This is so because while the Constitution contains many provisions that
mirror provisions in other constitutions in liberal democracies (such as
the US Constitution), it also departs from liberalism as it envisages a
move towards an ‘empowered’ model of democracy.107 The
transformative or post-liberal nature of the South African Constitution
manifests with reference to several unique characteristics of the
document which were first highlighted by Klare: it is social,
redistributive, caring, positive, at least partly horizontal, participatory,
multicultural and self-conscious about its historical setting and
transformative role and mission:108
• Social rights and a substantive concept of equality: The
Constitution endorses the view that political freedom and socio-
economic justice are inextricably linked. There is therefore a close
connection between political rights, such as freedom of expression
and the right to vote, and socio-economic rights such as the right to
housing and health care. Democracy and the democratic rights that
make democracy possible only have meaning if they lead to the
creation of a new kind of society in which people actually have the
social resources they need to exercise their rights meaningfully. The
chief purpose of classical liberal bills of rights is to ensure that the
government of the day does not interfere with the liberty of
individuals and the property rights of the middle classes. By
contrast, the South African Constitution embodies the idea that the
power of the community can (and must) be deployed to achieve
goals consistent with freedom. This is why the Constitution contains
a pervasive and overriding commitment to the achievement of
substantive (redistributive) equality.
• Affirmative state duties: A traditional liberal bill of rights places
only negative restraints on a government to stop it from interfering
with the liberty of individuals. By contrast, the South African Bill of
Rights, in addition to negative restraints, also imposes positive or
affirmative duties on the state to combat poverty and promote social
welfare, to assist people in authentically exercising and enjoying
their constitutional rights, and to facilitate and support individual
self-realisation.109 For example, the Bill of Rights places a positive
duty on the state to take reasonable steps progressively to ensure
access to socio-economic welfare in areas such as housing, health
care, food, water, social security and the protection of children.110
• Horizontality: Traditional bills of rights in liberal constitutions are
said to be concerned with the vertical relationship between citizens
and the state, limiting the power of the state to interfere in the lives
of individuals or private institutions. However, the South African Bill
of Rights has an explicit horizontal application. This means that in
 certain cases the Bill of Rights does not only limit the power of the
state to interfere in the lives of individuals or citizens, but also binds
individuals and institutions and, in some cases, requires them to
respect the rights of others. Thus section 8(2) states that the Bill of
Rights binds private parties in certain cases. Private parties are
expressly barred from engaging in invidious discrimination and
government is obliged to enact legislation enforcing that
command.111 Moreover, section 39(2) requires courts to take into
account the spirit, purport and objects of the Bill of Rights when
they interpret and develop the common law and customary law
which, to a large degree, regulate private relationships.
• Participatory governance: As we shall see, the nature of the
democracy established by the Constitution focuses on the
participation of citizens at all levels and at all stages of decision-
making. The Constitution envisages inclusive, accountable,
participatory, decentralised and transparent institutions of
governance and contemplates that government will actively
promote and deepen a culture of democracy.112
• Multiculturalism: South Africa is a multicultural society and it is
said that the Constitution celebrates multiculturalism and diversity
within a framework of national reconciliation and ubuntu.113 It
expressly promotes gender justice and rights for vulnerable and
victimised groups and identities, explicitly including protections for
gay men, lesbians and the disabled. It also protects language
diversity and respect for cultural tradition and diversity and the
‘right to be different’.114
• Historical self-consciousness: The Constitution is said to reject the
notion of a constitution as a social contract entered into by citizens,
presenting a snapshot of that society at the time of its conclusion
and requiring the protection of the status quo at the time of its
adoption. Unlike traditional liberal constitutions, it is said to reject
the notion that its aim is to protect the pre-existing hierarchy and
distribution of social and economic power. It accepts that legal and
political institutions are chosen, not given, that democracy must be
periodically reinvented, and that the Constitution itself must
constantly be interpreted and reinterpreted to reflect the evolving
understanding of the needs and problems a society faces. The 1996
text also contains numerous passages acknowledging that
constitutional provisions are not self-executing, but are evolving
texts that must be interpreted and applied.115

Transformative constitutionalism and its

critics
Some critics have pointed out that despite the
transformative nature of the Constitution, South African
society has not been radically transformed over the
past 25 years. They argue that transformative
constitutionalism is an ideal that finds little application
in practice. Other critics have gone further, by
questioning whether transformative constitutionalism is
a concept that can respond adequately to South
Africa’s specific realities. For example, Joel Modiri has
argued that:
[I]t would be an overstatement to deny that the constitutional project
remains constrained by the context of its emergence, the reigning legal
and political culture, and by the nature of modern law to draw lines
(rationalisation), give effect to a decision (fixity) and perform sovereign
acts (closure). In other words, while transformative constitutional
discourse can open debate within the governing social rules, its ability
to contest the actual rules themselves is severely limited. If the varying
approaches… [to transformative constitutionalism] implicitly
discouraged blind triumphalist faith in the constitution, they
nevertheless remained markedly optimistic about its ‘transformative’
and ‘progressive’ possibilities and thus did not occupy themselves with
the fashioning of radical alternatives grounded in and sensitive to the
specific social, cultural and historical realities of South Africa. Recent
studies have furthermore revealed the operation of a hierarchy in terms
of which the development and conceptualisation of knowledge on
modern constitutionalism is framed through the experiences,
institutions and epistemologies of the Global North, with the Global
South relegated to a lower, underdeveloped and purely mimetic tier.
This attachment to hegemonic North American and European legal
 traditions and schools of thought reproduces global patterns of legal
knowledge that perpetuate the marginality of Southern law and African
jurisprudential approaches in knowledge production on South African
constitutionalism. 116

The recognition by South African courts that the South African

Constitution is transformative in nature has not resulted in a radical
transformation of society. As noted below, South Africa remains an
inegalitarian society in which social and economic inequality largely
tracks along race and gender lines. There remains a gap between what is
promised in the Constitution and what has actually been achieved. The
Constitution contains ideals which a functioning democracy should
strive to achieve in order to establish a more just society. These ideals
include the ideal of radically transforming South Africa to become a
more egalitarian society in which racism, sexism, homophobia and
class prejudices and economic marginalisation are reduced or
eradicated. Respect for the values of human dignity, equality and
freedom underpins this ideal. The Constitution contains various
mechanisms (including a system of separation of powers and checks
and balances as well as powers for courts to review and set aside
unconstitutional acts) aimed at empowering the elected government of
the day to work to achieve these ideals. Some critics argue that the
limited success of transformative constitutionalism must be placed
squarely at the door of the elected government at national, provincial
and local level, who have not used their power effectively to effect
radical social and economic change. An example of this argument is
presented by Penny Andrews who argues that:
There are many reasons for the country’s inability to realise the rights set out
on the Constitution. They include a lack of political will on the part of all
spheres of government (national, provincial, and local), bureaucratic
indifference or incompetence, corruption and mismanagement. Other
problems concern either ineptitude of the so-called Chapter 9 institutions,
established to strengthen the country’s constitutional democracy, including
the Human Rights Commission and the Gender Commission. And the failure of
government to implement their recommendations. The reasons also relate to
the failure of government to implement court decisions.117
Others have argued that in order for the concept to be effective would
require a very specific commitment to redress from those interpreting
and enforcing the Constitution. But a shared consciousness of the
injustices of the past and an acceptance of the radical steps necessary to
address this, so it is argued, is lacking in South Africa. Sanele Sibanda,
provides a succinct version of this argument when he states:
Without the translation of the goals of transformation into explicitly
entrenched constitutional provisions that demand reconstruction,
redistribution and more deeply democratic popular participation that go
beyond the Bill of Rights, it is arguable that transformative constitutionalism
was always going to struggle to entrench itself, particularly in light of the
overall constitutional scheme which is a liberal democratic one. This assertion
is based on the fact that methodologically, in a Constitution that structurally
and institutionally accords with the basic tenets of liberal democratic
constitutionalism (a few innovations notwithstanding), transformative
constitutionalism would, in a practical sense, only appear to be achievable
through sustained and purposeful legal and judicial interpretation demanding
a shared consciousness. Therefore, it is my contention that within the context
of South Africa’s prevailing conservative legal culture, the extent to which the
success of transformative constitutionalism as an enterprise depends on legal
and judicial interpretation leaves the project in danger of remaining an
incomplete project at best.118

1.4.2 Interpretation of the South African Constitution

When interpreting the Constitution, the starting point will always be the
text of the relevant provisions in the Constitution. However, we should
not read these provisions in isolation; instead, we should assume that
the various provisions of the text are in harmony with one another and
we should read it holistically. The specific textual provisions alone will
not always provide a clear and definitive answer as to their meaning.
Courts are required to interpret and apply these provisions and,
through this interpretation, the meaning of the Constitution will evolve
over time.
A fundamental question arises regarding the power of judges to
interpret the text and to what extent contextual factors, as well as the
normative commitment of judges, may and should play a role in the
interpretative exercise. On the one hand, many of the justices of the
Constitutional Court have tentatively acknowledged the open-ended
nature of the language of the Constitution and the inherent need to
refer to extra-legal values and texts, including the South African political
context and history, to justify their decisions.119 On the other hand,
some judges have warned that it is not permissible to revert to general
philosophical or moral values to try to flesh out their understanding of
the constitutional text.120
The Constitutional Court has often declared its commitment to the
centrality of the constitutional text in constitutional interpretation.
However, the Court has also acknowledged that any such interpretation
can be conducted only with the assistance of objective or objectively
determinable criteria, or, at the very least, with reference to criteria that
are somehow distanced from the personal views, opinions and political
philosophy of the presiding judge.121 The criteria the Constitutional
Court employs to do the work in the interpretation of the constitutional
text have varied. The Court has resorted to an array of traditional
devices such as references to common law, its own precedent
established in previous judgments, the history of the drafting of the
Constitution, international law or foreign case law, and canons of
constitutional interpretation. At times, the Court has also resorted to
less traditional factors such as the surrounding circumstances of a case,
the social context of a case, the economic, political and social
environment in South Africa (including the continued existence of vast
inequalities between the rich and the poor) or the general history out of
which the Constitution was born.

The interpretative approach of the

Constitutional Court
In S v Makwanyane and Another, Mahomed DP
summarised the approach of the Constitutional Court
to the interpretation of the Constitution as follows:
What the Constitutional Court is required to do in order to resolve
an issue, is to examine the relevant provisions of the Constitution,
their text and their context; the interplay between the different
provisions; legal precedent relevant to the resolution of the
problem both in South Africa and abroad; the domestic common
 law and public international law impacting on its possible
solution; factual and historical considerations bearing on the
problem; the significance and meaning of the language used in
the relevant provisions; the content and the sweep of the ethos
expressed in the structure of the Constitution; the balance to be
struck between different and sometimes potentially conflicting
considerations reflected in its text; and by a judicious
interpretation and assessment of all these factors to determine
what the Constitution permits and what it prohibits.122

It will be difficult to claim that the Constitutional Court has

systematically developed a clear and unambiguous approach to the
interpretation of the Constitution in general or even of the provisions of
the Bill of Rights more specifically. Nevertheless, it is safe to say that
apart from its use of traditional methods of interpretation to signal the
‘legal’ (as opposed to ‘political’) nature of its task, the Court has also
developed what can loosely be termed a ‘contextual’ or ‘teleological’
approach to constitutional interpretation. In applying its contextual
approach, the Court has often found guidance in the more recent
decisions of the Canadian Supreme Court.123 In line with Canadian
Supreme Court jurisprudence, the Court has often referred to the
historical context in which the Constitution was adopted. Of course, it
cannot be said that the Court always uses a contextual approach, or that
it always uses it in the same manner, or even that the different judges
understand and apply this approach in the same way. Yet, in case after
case, the various judges of the Court have carefully sketched the
political and social context within which the Constitution operates
before proceeding to give an interpretation of the relevant provision of
the Constitution.
The contextual approach to constitutional interpretation
purportedly employed by the Court is a complex and multifaceted
endeavour.124 Essentially, the Court has embraced the idea that textual
provisions can only be understood with reference to the historical and
political context in which the interpretation takes place. When
interpreting the Constitution it is important to keep in mind what the
Constitution aimed to achieve. To do so, we need to recall South Africa’s
unique history and understand that the Constitution was drafted at
least in part to ensure that the horrors of the apartheid past are never
repeated.

A grand narrative acts as an interpretative

tool
It has been argued that the Constitutional Court
attempts to use South Africa’s history as a ‘grand
narrative’ – a meaning-giving story – to justify its
interpretations and to avoid allegations that it
interprets the Constitution based on ‘political’ rather
than on ‘legal’ considerations:
While many of the provisions in the constitutional text do not have
one objective meaning, and while the meaning of a text (often)
depends on the context in which it is being interpreted, the grand
narrative provides exactly such a context (or at least the major
tenets of such a context). This context seemingly enables lawyers,
legal academics and judges to interpret the Constitution without
recourse to their own social, moral and political opinions. This
strategy holds the promise of allowing the court to move away
from the traditional liberal or modernist view of legal texts as
holding one distinct and fixed meaning – a view that has become
unsustainable in the age of constitutional interpretation – without
doing away with the distinction between law on the one hand and
politics on the other. The text of the Constitution may not always
have one objective meaning, so it is said, but if we read it in the
context of our history it will pretty much tell us what we want to
know without us having to have recourse to our own personal,
political or philosophical views. I therefore contend that the grand
narrative acts as an interpretive tool, a tool deployed with the aim
of safeguarding the legitimacy of the process of constitutional
review and interpretation itself.125

Of course, South Africa’s history may well be a useful

reference point for understanding the various
provisions in the Constitution. If we assume that the
Constitution was drafted to ensure that no government
would ever again act in a way that fundamentally
breached the rights of citizens and to prevent a
 recurrence of the injustices of the past, we may well
argue that our history can teach us much about the
purpose of the various constitutional provisions
included in the Constitution.

However, the context in which the Constitution needs to be interpreted

also includes the political, economic and social context. The nature of
the South African democracy, as well as the lingering effects of the
system of racial discrimination and minority rule, may well inform the
way in which courts interpret the constitutional text.

1.4.3 Context: an inegalitarian society and a one-party

dominant democracy
The South African Constitution does not operate in a political or
economic vacuum. South Africa is an inegalitarian society with vast
discrepancies in wealth between rich and poor citizens. These factors
must play a role when interpreting the provisions of the South African
Constitution. As the Constitutional Court pointed out:
We live in a society in which there are great disparities in wealth. Millions of
people are living in deplorable conditions and in great poverty. There is a high
level of unemployment, inadequate social security, and many do not have
access to clean water or to adequate health services. These conditions already
existed when the Constitution was adopted and a commitment to address
them, and to transform our society into one in which there will be human
dignity, freedom and equality, lies at the heart of our new constitutional order.
For as long as these conditions continue to exist that aspiration will have a
hollow ring. The constitutional commitment to address these conditions is
expressed in the preamble which, after giving recognition to the injustices of
the past, states: ‘We therefore, through our freely elected representatives,
adopt this Constitution as the supreme law of the Republic so as to – Heal the
divisions of the past and establish a society based on democratic values, social
justice and fundamental human rights; Improve the quality of life of all citizens
and free the potential of each person.’ 126

This passage underlines the transformative nature of the Constitution.

The Constitution aims to address the unequal nature of South African
society and imposes an obligation on the state and other relevant actors
to address the needs of the most vulnerable and marginalised members
of society. When interpreting the provisions of the Constitution –
especially the provisions of the Bill of Rights – the Constitutional Court
has signalled an acute awareness of the unequal and unjust nature of
South African society and the vulnerability of many groups who lack
economic or political power and who require protection or
advancement from the legislature and the executive as well as the
judiciary.
However, the political culture and the nature of the South African
democracy must also play a role in interpreting the provisions of the
Constitution. It finds application and must be interpreted by the courts
with reference to the specific nature of South Africa’s political culture
and the role that political parties play in the political system. Political
parties play a decisive role in the South African system of government,
first, because of the nature of the electoral system currently in operation
in South Africa and, second, because of the dominant position of
former liberation movements in current politics. It would be impossible
to come to grips with the manner in which the various provisions of the
Constitution operate without understanding – in broad terms – the
South African political landscape. As we have seen, the ANC
overwhelmingly won the first national democratic election in 1994. It
has also won every subsequent national election, although with an
ever-diminishing percentage. In 2004 it won 69,7% of the vote, in 2009
this decreased to 65,9% and in 2014 it decreased even further to 62,15%.
Its closest competitor has been the Democratic Alliance (DA) which
won only 12,37 in 2004, 16,66% in 2009 and 22,23% in 2014. Table 1.3
illustrates the standing of parties in the 2019 election.

Table 1.3 The 2019 election results127

It is therefore clear that since 1994, one party, the ANC, has enjoyed
electoral dominance and, despite a steady decrease in its electoral
support, the party continues to win free and fair elections with all other
parties lagging far behind. Such a system in which one political party
continuously wins overwhelming electoral victories in free and fair
elections is often referred to as a dominant party democracy.128
Although this description is disputed as far as South Africa is
concerned, it is important to note that the electoral dominance of one
political party has the potential to influence the manner in which
various constitutional structures in a democracy operate.
Advocates of the dominant party thesis have described a number of
consequences flowing from the continued electoral dominance of one
political party. They argue that the dominant status of one political
party in a democracy has the tendency to erode the checks on the
power of the executive created by a democratic but supreme
Constitution. Legislative oversight over the executive in Parliament may
be stymied and opposition parties may be marginalised where one
political party dominates the legislature. There is also a danger that a
dominant party may ‘capture’ various independent institutions –
including the judiciary and other bodies such as the prosecuting
authority, the police service and other corruption-busting bodies – by
deploying its members to these institutions to remove effective checks
on the exercise of power by the government. In a one-party dominant
democracy, so they argue, the formal mechanisms through which
power is exercised become hollowed out while the separation between
the political party and the state breaks down. This essentially shifts the
centre where real decisions are made from the formal constitutional
structures – the Presidency and the Cabinet on the one hand and the
legislature on the other – to the decision-making body of the governing
party.
In such a system, they argue, the leadership of the dominant party
makes all important decisions which are then merely formally endorsed
by the constitutional structures. This process is characterised by a
blurring of the boundary between party and state. This has the effect of
reducing the likely formation of independent groups from within civil
society that are autonomous from the ruling party. It is also
characterised by a growing preponderance of political power, leading to
abuse of office and arbitrary decision-making. This undermines the
integrity of democratic institutions, particularly that of the legislature
and its ability to check the executive. If this is true, it will influence the
manner in which the legislature, the executive, the judiciary and other
constitutional institutions operate as the dominant party will have a
disproportionate influence on these institutions, thus posing difficulties
for their effective operation.
Whether the electoral dominance of the ANC has turned South
Africa into a one-party dominant democracy is a hotly contested issue.
Critics of this thesis argue that there are external checks that operate
outside the constitutional system on the ANC which serve as functional
substitutes for the internal check provided by the formal institutions of
parliamentary democracy that the ANC’s dominance has eroded. Given
that the ANC is a ‘broad church’, so the argument goes, and because
there is a high degree of internal democracy in the ANC, this provides
not merely opportunities for debate, but for the reversal of official
policy.129 The ANC is also in an alliance with the SACP and the trade
union federation COSATU, both with their own membership and views.
These alliance partners play an important role in keeping the leadership
of the ANC in check and ensuring that the government of the day
addresses the needs of the majority of its citizens.
In the chapters that follow, we will discuss the formal provisions of
the Constitution that set up various institutions and structures and that
regulate the governance of the country. When evaluating these
institutions and structures and when determining how well these
structures operate in practice, it is important to keep in mind arguments
about the one-party dominant nature of the constitutional democracy
in South Africa. The view we take about this issue will influence the
judgment we make about how effectively and successfully the
structures set up by the Constitution function in reality and interact
with one another as required by the Constitution. Those who believe
that South Africa is indeed a one-party dominant democracy will have a
more negative assessment of the way in which the Constitution
succeeds in establishing a fully functioning multi-party democracy in
which the will of the people guides the governance of the country. They
will argue that the legislature does not always hold the executive
accountable, will worry about the ‘capture’ of the judiciary and whether
it remains independent, and will warn against the abuse of power by the
executive. Those who reject the one-party dominant thesis will argue
that the constitutional structures, on the whole, work well, that the
executive remains accountable to the legislature and that the
independent judiciary acts as a bulwark against abuse of power by state
officials and elected representatives of the people.

SUMMARY

South Africa’s constitutional history before 1994 was characterised by

extreme forms of racial segregation and discrimination, creating a
bifurcated state with one system with its own structures and sets of
rules applying largely to white settlers and other structures with their
own sets of rules applying to indigenous peoples. This essentially racial
division is also to be found in the law that is applicable in South Africa
even today. The common law, introduced by the colonial rulers, at first
largely applied to the white population while customary law developed
by indigenous peoples applied to black South Africans. Today, the
common law and customary law both apply to different people in
different contexts.
In 1910, the Union of South Africa formalised the bifurcated nature
of the state by establishing a Westminster system of government that
largely applied to the white population while allowing traditional
governance structures centred around chiefs to continue to operate for
indigenous South Africans but under the control of the white
government. The Westminster system established an extreme form of
parliamentary sovereignty in which Parliament was supreme and could
make any law it wished as long as it followed the correct procedure. This
changed in 1994 with the transition to democracy.
The transition to democracy occurred in two stages: the first
transitional stage was guided by an interim Constitution which allowed
for power sharing between the major political parties for a period of five
years and also contained 34 Constitutional Principles which would bind
the drafters of the final Constitution. The interim Constitution also
prescribed the manner in which the final Constitution had to be
adopted. The final Constitution was drafted by the Constitutional
Assembly, comprising the democratically elected National Assembly
and the indirectly elected Senate, but this body was bound by the 34
Principles. The Constitutional Court had to certify that the final
Constitution complied with these principles, which it eventually did
after first referring the Constitution back to the Constitutional Assembly
because it had not complied in all aspects with these Principles.
The final Constitution is said to be a transformative Constitution.
This means it responds to the social and economic history of our
country. It aims to facilitate the transformation of our society away from
an unequal and uncaring society in which racial discrimination and the
marginalisation of women and other vulnerable groups was the order of
the day and vast inequalities remained, towards a fairer and more equal
society in which the human dignity of all is respected and protected.
This Constitution often contains vague provisions that judges must
interpret. Judges use a purposive method of interpretation and often
refer to South Africa’s history to guide them in their interpretative task.

1 Not all constitutions can be found in one or more formal written documents. For example,
the British or Westminster Constitution has evolved over a long period of time but has
never been fully codified in any written official form. See De Smith, SA and Brazier, R
(1994) Constitutional and Administrative Law 7th ed 6.
2 (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA); 1995 (1) SACR
568; [1996] 2 CHRLD 244 (5 April 1995) para 17.
3 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and
the African National Congress in a dominant party democracy Constitutional Court Review
2:1–86.
4 See Currie, I and De Waal, J (eds) (2001) The New Constitutional and Administrative Law,
Vol 1 Constitutional Law 40–3.
5 See Kuper, A (1997) Review: The Mfecane Aftermath: Reconstructive Debates in Southern
African History by Carol Hamilton Current Anthropology 38(3):471–3; Woolman, S and
Swanepoel, J ‘Constitutional history’ in Woolman, S and Bishop, M (eds) (2013)
Constitutional Law of South Africa 2nd ed (rev service 5) 2.6.
6 Currie and De Waal (2001) 42.
7 Dugard, J (1978) Human rights and the South African legal order 14–8.
8 Hahlo, HR and Khan, E (1960) The Union of South Africa: The Development of its Laws and
Constitution 72–83. See generally Carpenter, G (1987) Introduction to South African
Constitutional Law 64–72.
9 In Cassim and Solomon v The State (1892) Cape Law Journal 9:58, the High Court of the
Orange Free State reviewed a law which prohibited ‘Asians’ from settling in the state
without permission of the President on the ground that it violated the guarantee of equality
before the law. However, the Court upheld the law, arguing that the constitutional
guarantee had to be ‘read in accordance with the mores of the Voortrekkers’. See Dugard
(1978) 19.
10 Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 11.
11 Dugard (1978) 20.
12 Brown v Leyds NO (1897) 4 Off Rep 17.
13 Dugard (1978) 24.
14 Bennett, TW (2004) Customary Law in South Africa 103.
15 Bennett (2004) 104.
16 Bennett (2004) 104–5.
17 Deflem, M (1999) Warfare, political leadership, and state formation: The case of the Zulu
Kingdom, 1808–1879 Ethnology 38(4):371–91 at 376–7.
18 Act 25 of 1894.
19 Davenport, TRH (1987) South Africa: A Modern History 3rd ed 181.
20 Hendricks, F and Ntsebeza, L (1999) Chiefs and rural local government in post-apartheid
South Africa African Journal of Political Science 4(1):99–126 at 102.
21 Davenport (1987) 152.
22 Woolman and Swanepoel (2013) 2.14.
23 Klug (2010) 8; Davenport (1987) 112–15; Mamdani, M (1996) Citizen and Subject:
Contemporary Africa and the Legacy of Late Colonialism 67–9.
24 In the Cape Colony, every man over the age of 21 who was a British subject and who owned
property worth at least 25 pounds or who received a salary of at least 50 pounds per year
was granted the vote. Although few black men qualified, there was no formal racial
restriction in the Cape franchise and this was retained after unification. Similar provisions
applied to the Natal Colony. However, black men and women in the other two provinces
were not allowed to vote.
25 Chanock, M (2001) The Making of South African Legal Culture 1902–1936: Fear, Favour and
Prejudice 22.
26 Klug (2010) 9.
27 See, for example, Basson, DA and Viljoen, HP (1988) Suid-Afrikaanse Staatsreg 2de uitg 36–
7.
28 8 & 29 Vict. c. 63.
29 Currie and De Waal (2001) 44–5.
30 S 35 of the Union Constitution.
31 S 137 of the Union Constitution.
32 See Currie and De Waal (2001) 44–5.
33 Native Representative Act 12 of 1936. The Act was challenged in Ndlwana v Hofmeyr NO
and Others 1937 AD 229, but the courts refused to intervene.
34 Act 46 of 1951.
35 1952 (2) SA 428 (A).
36 1957 (1) SA 552 (A).
37 The only judge to dissent, Oliver Schreiner, was later twice overlooked when a new Chief
Justice had to be appointed. See Dugard (1978) 286; Haynie, SL (2003) Judging in Black and
White: Decision Making in the South African Appellate Division, 1950–1990 (Teaching Text
in Law and Politics).
38 Dugard (1978) 36. Dugard contrasts this extreme notion of parliamentary supremacy to
that which holds sway in the United Kingdom where political traditions, conventions and
respect for the rule of law act as a control on the system of parliamentary supremacy.
39 1934 AD 11.
40 S 1(12) of the Riotous Assemblies and Criminal Law Amendment Act 27 of 1914 as
amended by the Riotous Assemblies Amendment Act 19 of 1930.
41 Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 paras 36–7.
42 Act 38 of 1927.
43 S 12 of the Constitution.
44 S 1 of the Constitution. See Mqeke, RB (1997) Basic Approaches to Problem Solving in
Customary Law: A Study of Conciliation and Consensus amongst the Cape Nguni 83–4.
45 Hendricks and Ntsebeza (1999) 104. See also Lacey, M (1981) Working for Boroko: The
Origins of a Coercive Labour System in South Africa 94–119.
46 Hendricks and Ntsebeza (1999) 104.
47 Act 68 of 1951.
48 The Promotion of Bantu Self-Government Act 46 of 1959.
49 Transkei in 1976, Bophuthatswana in 1976, Venda in 1979 and Ciskei in 1981.
50 Bennett (2004) 111.
51 Hendricks and Ntsebeza (1999) 106.
52 There is one exception, the Balobedu tribe. See further Pieterse, M (1999) Traditional
leaders win battle in undecided war SAJHR 15:179–187; Motshabi, KB and Volks, SG (1991)
Towards democratic chieftaincy: Principles and procedures Acta Juridica 104–15 at 104–5.
53 For a discussion of the controversial nature of chieftaincy, see Bennett (2004) 111–13 and
120–3; Pillay, N and Prinsloo, C (1995) The changing face of ‘traditional courts De Jure 1:383
at 383–4.
54 See Woolman and Swanepoel (2013) 2.21–2.22.
55 Republic of South Africa Constitution Act 110 of 1983.
56 S 14 of the 1983 Constitution. See Basson and Viljoen (1988) 152.
57 S 15 of the 1983 Constitution.
58 S 16 of the 1983 Constitution.
59 The notion of a Charter was first mooted at the annual Congress of the ANC in August 1953.
Prof ZK Mathews formally suggested convening a Congress of the People (COP) to draw up
the Freedom Charter. The idea was adopted by the allies of the ANC, the South African
Indian Congress, the South African Coloured People’s Organisation and the South African
Congress of Democrats.
60 Woolman and Swanepoel (2013) 2.28.
61 African National Congress (1989) ‘Constitutional Guidelines for a Democratic South Africa’
reprinted in SAJHR 5(2):129–32 at 129. For discussions of this document, see Nagan, WP
(1989) Law and Post-Apartheid South Africa Fordham International Law Journal 12(3):399–
 451; and Dugard, J (1990) A Bill of Rights for South Africa Cornell International Law Journal
23(3):441.
62 Constitutional Guidelines at 131.
63 Dugard (1990) 450.
64 ‘The Harare declaration: The ANC’s chapter for negotiations’ (1990, 1 January) accessed on
6 March 2019 at https://www.africaportal.org/publications/the-harare-declaration-the-
ancs-chapter-for-negotiations/.
65 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) (First
Certification) para 10.
66 Sparks, AH (1994) Tomorrow is Another Country: The Inside Story of South Africa’s
Revolution.
67 South African History Online ‘The ANC unveils its proposed constitutional principles’
accessed on 6 March 2019 at https://www.sahistory.org.za/dated-event/anc-unveils-its-
proposed-constitutional-principles.
68 ANC Constitutional Committee ‘A Discussion Document of Structures and Principles of a
Constitution for a Democratic South Africa’ (1991, 8 April) at 16, accessed on 7 March 2019
at https://dullahomarinstitute.org.za/about-us/our-historical-publications/anc-
discussion-document-on-structures-and-principles-of-a-constitution-for-democrcatic-
sa.pdf.
69 By the time the interim Constitution was finalised, the Inkatha Freedom Party (IFP) and its
allies in the Freedom Alliance (consisting of various Bantustan governments and pro-
apartheid white parties) had walked out of the negotiations.
70 See Venter, F (2010) Liberal democracy: The unintended consequence – South African
constitution-writing propelled by the winds of globalisation SAJHR 26(1):45–65 at 53.
Venter notes that this wording was developed by a working group of the Steering
Committee established by the 19 participating parties that committed themselves to
CODESA in the course of November and December 1991. It was partly foreshadowed in
chapter 1 of the National Peace Accord signed on 14 September 1991 by some 40 parties
and organisations.
71 Available at
https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02039/04lv02046/05lv
02047/06lv02049/07lv02052.htm.
72 The MPNF emerged after intense negotiation which led to the Record of Understanding
signed on 26 September 1992, which is available at http://www.anc.org.za/show.php?
id=4206.
73 First Certification para 12.
74 Murray, C (2001) A constitutional beginning: Making South Africa’s final Constitution
University of Arkansas at Little Rock Law Review 23:809–38(3):809–38 at 813, available at
https://lawrepository.ualr.edu/lawreview/vol23/iss3/3.
75 The procedure for the adoption of the final Constitution was laid down in ss 68–73 of the
Constitution of the Republic of South Africa Act 200 of 1993.
76 See also First Certification paras 16–19.
77 S 97(2)(a) of the interim Constitution.
78 S 99(3) of the interim Constitution.
79 S 99(4) of the interim Constitution read with s 99(5).
80 First Certification para 45.
81 S 71(3) of the interim Constitution.
82 Madlingozi, T (2018) South Africa’s first black lawyers, amaRespectables and the birth of
evolutionary constitution – a review of Tembeka Ngcukaitobi’s The Land is Ours: South
Africa’s First Black Lawyers and the Birth of Constitutionalism SAJHR 34(3):517–29 at 519–
20.
83 See South African History Online ‘Elections in post-apartheid South Africa’ available at
http://www.sahistory.org.za/elections-post-apartheid-south-africa.
84 The Democratic Party is the forerunner of the Democratic Alliance, that was formed when
the DP merged with the NP.
85 Murray (2001) 816. The Constitutional Assembly’s slogan, ‘You’ve made your mark now
have your say’, invited the many millions of South Africans who had voted for the first time
in 1994 to contribute to the country’s first democratic Constitution – and over two million
did so. See generally Ebrahim, H (1998) The Soul of a Nation: Constitution-making in South
Africa.
86 See ss 72–3 of the interim Constitution. A panel of constitutional experts comprising two
practising lawyers and five academic lawyers was to review the final Constitution. The
panel had a month to come up with ‘deadlock-breaking’ ideas.
87 Woolman and Swanepoel (2013) 2.41.
88 See s 73(8) of the interim Constitution.
89 Murray (2001) 832.
90 As quoted in Murray (2001) 821. This particular submission was dated 16 May 1995.
91 First Certification para 34.
92 First Certification paras 36–7.
93 First Certification para 44.
94 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September
1996).
95 See First Certification para 482.
96 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (CC) (4 December 1996).
97 S 1 of the Constitution.
98 S 2 of the Constitution.
99 S 7(2) of the Constitution.
100 S 211 of the Constitution.
101 S 212 of the Constitution.
102 See Klare, K (1998) Legal culture and transformative constitutionalism SAJHR 14(1):146–88;
Chaskalson, A (2000) The third Bram Fischer lecture: Human dignity as a foundational
value of our constitutional order SAJHR 16(2):193–205 at 199; Pieterse, M (2005) What do
we mean when we talk about transformative constitutionalism? SA Public Law 20:155–66;
Langa, P (2006) Transformative constitutionalism SLR 17(3):351–60; Moseneke, D (2009)
Transformative constitutionalism: Its implications for the law of contract SLR 20(1):3–13 at
4; Davis, DM and Klare, K (2010) Transformative constitutionalism and the common and
customary law SAJHR 26(3):403–509.
103 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v
Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC,
Local Government and Housing, Gauteng, and Others (Kwazulu-Natal Law Society and
Msunduzi Municipality as amici curiae) (CCT 57/03) [2004] ZACC 9; 2005 (1) SA 530 (CC);
 2005 (2) BCLR 150 (CC) (6 October 2004) para 81; Soobramoney v Minister of Health
(Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696
(CC) (27 November 1997) para 8; Investigating Directorate: Serious Economic Offences and
Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors
(Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079
(CC); 2001 (1) SA 545 (CC) (25 August 2000) para 21.
104 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665 (CC); 1995 (3)
SA 391 (CC); 1995 (2) SACR 1 (CC) (6 June 1995) para 262.
105 See Davis, D (1999) Democracy and Deliberation: Transformation and the South African
Legal Order 44.
106 See ss 1 and 7 of the Constitution. The Constitution’s historically situated character has
been recognised in several Constitutional Court judgments. See, for example, The Azanian
People’s Organization (AZAPO) and Others v The President of the Republic of South Africa
and Others CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (CC) (25 July
1996) para 50: ‘constitutional journey from the shame of the past to the promise of the
future’; para 42: ‘[w]hat the Constitution seeks to do is to facilitate the transition to a new
democratic order’. See also De Vos, P (2001) A bridge too far? History as context in the
interpretation of the South African Constitution SAJHR 17(1):1–33.
107 Klare (1998) 152.
108 See generally Klare (1998) 153–6.
109 See s 7(2) of the Constitution, which states that the state has a duty to respect, protect,
promote and fulfil the rights in the Bill of Rights, and Minister of Finance and Other v Van
Heerden (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) (29
July 2004) para 24.
110 See ss 26–8 of the Constitution.
111 See s 9(4) of the Constitution.
112 See, generally, ss 40(2) and 41(1). See also s 32 (access to information); s 33 (right to fair
and just administrative action); and ss 34 and 38 (access to courts) and s 234 (charters of
rights).
113 Makwanyane paras 224 and 263.
114 See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (9
October 1998) para 135: ‘The Constitution acknowledges the variability of human beings
(genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of
the nation.’
115 S 1(a); s 7(1); s 39(1) of the Constitution.
116 Modiri, J (2018) Conquest and constitutionalism: first thoughts on an alternative
jurisprudence SAJHR 34(3):300–25 at 310.
117 Andrews, P (2017, 4 July) South Africa’s problems lie in political negligence, not its
Constitution The Conversation accessed on 6 August 2019 at
https://theconversation.com/south-africas-problems-lie-in-political-negligence-not-its-
constitution-80474.
118 Sibanda, S (2011) Not Purpose-made! Transformative Constitutionalism, Post-
independence Constitutionalism and the Struggle to Eradicate Poverty Stellenbosch Law
Review (Jan 2011) 22(3):482–500 at 493. [Footnotes omitted]
119 Makwanyane para 321 per O’Regan J: the language of fundamental rights is ‘broad and
capable of different interpretations’; para 207 per Kriegler J: ‘… it would be foolish to deny
that the judicial process, especially in the field of constitutional adjudication, calls for value
judgments in which extra-legal considerations may loom large’; para 265 per Mahomed
DP: The Constitution must be examined with reference, inter alia, to the text, context and
the ‘factual and historical considerations’; para 382 per Sachs J: ‘in seeking the kind of
values which should inform the court’s approach to interpretation the “rational and
humane adjudicatory approach” must be preferred’.
120 See also Makwanyane para 207 per Kriegler J: ‘… methods to be used are essentially legal,
not moral or philosophical … it would be foolish to deny that the judicial process,
especially in the field of constitutional adjudication, calls for value judgments in which
extra-legal considerations may loom large. Nevertheless the starting point, the framework
and the outcome of the exercise must be legal’; para 349 per Sachs J: ‘Our function is to
interpret the text of the Constitution as it stands. Accordingly, whatever our personal views
on this fraught subject might be, our response must be a purely legal one’; para 265 per
Mahomed DP: ‘… difference between a political election made by a legislative organ and
decisions reached by a judicial organ, like the Constitutional Court, is crucial’.
121 See Klare (1998) 172–87 for examples of this kind of reasoning by the judges of the
Constitutional Court.
122 (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665; 1995 (3) SA 391 (CC);
1995 (2) SACR 1 (CC) (6 June 1995) para 265.
123 See the reference to R v Big M Drug Mart Ltd (1985) 18 DLR (4th) at 321 in S v Zuma and
Others (CCT 5/94); [1995] ZACC 1; 1995 (2) SA 642 (CC) ; 1995 (4) BCLR 401 (CC) (5 April
1995) para 15; President of the Republic of South Africa and Another v Hugo (CCT 11/96);
[1997] ZACC 4; 1997 (4) SA 1 (CC) ; 1997 (6) BCLR 708 (CC) (18 April 1997) para 41; Prinsloo
v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6)
BCLR 759 (CC) (18 April 1997) para 32. On the use of history, see, for example, Zuma para
15 where Kentridge J stated that ‘… regard must be paid to the legal history, traditions and
usages of the country concerned …’; Makwanyane para 39 where Chaskalson P stated that
‘we are required to construe the South African Constitution … with due regard to our legal
system, our history and circumstances …’; para 264 where Mahomed DP stated ‘It is against
this historical background and ethos that the constitutionality of capital punishment must
be determined.’; and paras 322–23 where O’Regan J stated that ‘… the values urged upon
the Court are not those that have informed our past …’ and in ‘… interpreting the rights
enshrined in Chapter 3, therefore, the Court is directed to the future’. See also Executive
Council of the Western Cape Legislature and Others v President of the Republic of South
Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289
(CC) (22 September 1995) para 61 where Chaskalson P stated that the nature and extent of
the power of Parliament to delegate its legislative powers ultimately depends ‘on the
language of the Constitution, construed in the light of the country’s own history’.
124 For a short review of contextual interpretation by the Constitutional Court, see Currie, I and
De Waal, J (2013) The Bill of Rights Handbook 140–5.
125 See De Vos (2001).
126 Soobramoney paras 8–9.
127 See South Africa: 2019 National Assembly Election Results, IEC, available at
https://www.elections.org.za/NPEDashboard/app/dashboard.html.
128 See Choudhry (2009) 1–85. Whether South Africa can indeed be characterised in this
manner has been the subject of intense debate. See Southall, R (1994) The South African
elections of 1994: The remaking of a dominant-party state Journal of Modern African
Studies 32(4):629–55; Giliomee, H (1998) South Africa’s emerging dominant-party regime
Journal of Democracy 94:128; Southall, R (1998) The centralization and fragmentation of
South Africa’s dominant party system African Affairs 97(389):443–69; Friedman, S ‘No easy
stroll to dominance: Party dominance, opposition and civil society in South Africa’ in
Giliomee, H and Simkins, C (eds) (1999) The Awkward Embrace: One Party Domination
and Democracy in Industrialising Countries 97; Giliomee, H, Myburgh, J and Schlemmer, L
(2001) Dominant party rule, opposition parties and minorities in South Africa
Democratization 8(1):161–82; Southall, R (2001a) Opposition in South Africa: Issues and
problems Democratization 8(1):1–24; Southall, R (2001b) Conclusion: Emergent
perspectives on opposition in South Africa Democratization 8(1):275–84; Alence, R (2004)
South Africa after apartheid: The first decade Journal of Democracy 15(3):78–92 at 78;
Hamill, J (2004) The elephant and the mice: Election 2004 and the future of opposition
politics in South Africa The Round Table: The Commonwealth Journal of International
Affairs 93(377):691–708; Lodge, T (2004) The ANC and the development of party politics in
modern South Africa Journal of Modern African Studies 42(2):189–219; Southall, R (2005)
The ‘dominant party debate’ in South Africa Afrika Spectrum 40(1):61–82; Suttner, R (2006)
Party dominance theory: Of what value? Politikon: SA Journal of Political Studies 33(3):277–
97; Handley, A, Murray, C and Simeon, R ‘Learning to lose, learning to win: Government
and opposition in South Africa’s transition to democracy’ in Friedman, E and Wong, J (eds)
(2008) Political Transitions in Dominant Party Systems: Learning to Lose 191.
129 Lodge, T (2004) The ANC and the development of party politics in modern South Africa
Journal of Modern African Studies 42(2):205–207.
Basic concepts of constitutional
law

2.1 Introduction

2.2 Constitutionalism
2.2.1 Understanding the nature of constitutionalism
2.2.2 Constitutionalism understood descriptively
2.2.3 Constitutionalism understood prescriptively
2.2.4 Constitutionalism in South Africa: a brief overview
2.2.4.1 Introduction
2.2.4.2 The era of the dominance of the Westminster constitutional model
2.2.4.3 The era of constitutional supremacy
2.2.4.3.1 Introduction
2.2.4.3.2 Constitutional supremacy
2.2.4.3.3 A value-based constitutional system
2.2.4.3.4 Co-operative ‘federalism’

2.3 Separation of powers

2.3.1 The purpose and principles of the doctrine of separation of powers
2.3.2 A brief history of the doctrine of separation of powers
2.3.3 Separation of powers: the South African experience
2.3.3.1 Introduction
2.3.3.2 The legislature
2.3.3.3 The executive
 2.3.3.4 The judiciary
2.3.3.5 The counter-majoritarian dilemma

2.4 The rule of law

2.4.1 Introduction
2.4.2 A brief history of the rule of law
2.4.3 The rule of law under the 1996 Constitution

2.5 Democracy
2.5.1 Introduction
2.5.2 Conceptions of democracy
2.5.3 Direct democracy
2.5.4 Representative democracy
2.5.5 Participatory democracy
2.5.6 Constitutional democracy

Summary

2.1 Introduction
To obtain a sound command of South Africa’s system of constitutional
law, it is important that we consider certain fundamental concepts at
the outset. This is necessary to establish a common understanding of
the doctrines, concepts and principles that lie at the heart of the
Constitution, 1996 (hereinafter referred to as the ‘Constitution’), the
context in which it emerged and the context in which it operates. These
doctrines, concepts and principles are given concrete expression in
many of the provisions of the Constitution. When we study specific
aspects of the Constitution, therefore, we need to do so in the light of
the doctrines, concepts and principles discussed in this chapter.
The aim of this chapter is to introduce some of the overarching ideas
that are pivotal in both explaining and contextualising the development
of South Africa’s system of constitutional law. Although we focus on
constitutional developments that have taken place in the period after
South Africa’s transition to democracy, we also consider some
important constitutional moments from the colonial and apartheid
periods for purposes of context. We also locate these constitutional
developments within a broader historical and political context that
recognises the influence of the constitutional law and practices of other
countries.

2.2 Constitutionalism

2.2.1 Understanding the nature of constitutionalism

Constitutionalism as a concept is not easy to define. The term
‘constitutionalism’ is sometimes used to convey the idea of a
government that not only acts under the authority of a written
constitution, but is also limited by it. In the modern context,
constitutionalism is commonly used to describe a political community
in which elected politicians, government officials and judicial officers
must all act in accordance with the law, whose legitimacy and power is
derived from the constitution itself.1
Constitutionalism, in this sense, is concerned with two issues: first,
how to establish a government with sufficient power to realise a
political community’s shared purposes and to implement the
programmes for which a specific government has been elected by
voters; and second, how to structure that government and control the
exercise of power by the various institutions and structures of
government (and other powerful role players in society) in such a way
that oppression and abuse of power are prevented.2 A number of key
characteristics can be derived from this description of
constitutionalism. Among these are the following:
• First, constitutionalism identifies and establishes the institutions
and structures of governance, such as the legislature, the executive
and the judiciary and the national, provincial and local spheres of
government.3
• Second, constitutionalism is concerned with the formal and legal
distribution of public power among the different institutions and
structures of governance and the procedures they must follow when
they exercise these powers.
• Third, constitutionalism plays an important role in determining the
nature and basis of relations that exist between institutions and
 structures of governance and those they govern.
• Fourth, constitutionalism envisages the enactment of binding rules
or laws for the regulation of the political community and its
institutions and structures of governance.
• Last, and implicit in the previous points, constitutionalism
simultaneously authorises and imposes limits on the exercise of
public power, while also being concerned with establishing
institutional mechanisms to ensure that the exercise of such power
takes place within the vision and parameters set by the constitution.

In the light of the characteristics set out above, we can conclude that, in
essence, constitutionalism is about the notion that a constitution must
both structure and constrain state power. On the one hand, a
constitution must establish institutions and structures of governance
and allocate power to them for the effective governing of a state. On the
other hand, it must limit and disperse that power among the
institutions and structures of governance in an attempt to ensure that it
will not be abused.
While constitutionalism seeks to achieve what are clearly important,
if not sometimes conflicting, ideals, it is important to acknowledge that
the manner in which these ideals may be achieved differs from one
political community to the next. The system of constitutionalism
adopted by a political community and its relationship to other
important constitutional law concepts, such as the separation of
powers, the rule of law, democracy and the protection of human right
depends on a variety of factors. Perhaps the most important of these is
the political and social history of that community.
An important consequence of these diverse political and social
histories is that over the centuries during which the concept of
constitutionalism has evolved, different understandings and different
models have developed. These differences are reflected in the explicit or
implicit norms and values on which a particular constitution is based,
the manner in which a particular constitution structures and allocates
power and the way in which the text of the constitution has been
interpreted and applied by the judiciary and other bodies. We consider
some of these understandings and models below.

The unique nature of South African

constitutionalism
The model of constitutionalism adopted by a political
community depends partly on its political and social
history. This point was eloquently made by Mahomed J
in his concurring judgment in the death penalty case,
S v Makwvanyane and Another, when he said the
following:
All Constitutions seek to articulate, with differing degrees of
intensity and detail, the shared aspirations of a nation; the values
which bind its people, and which discipline its government and its
national institutions; the basic premises upon which judicial,
legislative and executive power is to be wielded; the constitutional
limits and the conditions upon which that power is to be
exercised; the national ethos which defines and regulates that
exercise; and the moral and ethical direction which that nation
has identified for its future. In some countries, the Constitution
only formalizes, in a legal instrument, a historical consensus of
values and aspirations evolved incrementally from a stable and
unbroken past to accommodate the needs of the future. The
South African Constitution is different: it retains from the past
only what is defensible and represents a decisive break from, and
a ringing rejection of, that part of the past which is disgracefully
racist, authoritarian, insular, and repressive and a vigorous
identification of and commitment to a democratic, universalistic,
caring and aspirationally egalitarian ethos, expressly articulated
in the Constitution. The contrast between the past which it
repudiates and the future to which it seeks to commit the nation
is stark and dramatic.4

This passage highlights the fact that the South African

model of constitutionalism is aimed at remedying the
injustices of our colonial and apartheid past. The
Constitution, therefore, is more than just a technical
document that describes the various institutions and
structures of government and regulates the exercise of
 state power (and the limits placed on the exercise of
that power) by those institutions and structures. In
addition, it also explicitly sets out the norms and
values on which the system of governance must be
based, and prescribes and limits the manner in which
state, and sometimes private, power must be
exercised. The model of constitutionalism applied in
South Africa, therefore, is not simply descriptive, but
rather prescriptive. We explore these aspects further
below.

2.2.2 Constitutionalism understood descriptively

One way in which constitutionalism can be understood is simply as a
descriptive concept. Viewed in this way, constitutionalism is concerned
simply with providing a factual description of the institutions and
structures of governance that make up the constitutional system of a
particular state.5 This understanding of constitutionalism tends to be
formalistic in nature: it focuses on explaining the institutions and
structures of governance, the distribution of power among these
institutions and structures, the relations between them and the
limitations on power as provided for in a given constitution. It does not
identify or describe the normative values on which the constitutional
system is based or evaluate the extent to which the institutions and
structures are being used to protect and promote those values.
The idea of constitutionalism as a descriptive concept represents a
practice that has largely fallen out of favour as it reduces
constitutionalism to a mere explanation of a constitution’s structural
and operational design. It was in this descriptive sense only that, prior
to the advent of democracy in South Africa, we could speak of South
African constitutionalism. This was similar to other colonial territories
where there was a constitution but the constitution failed to establish a
representative system of government, and other normative concepts
such as equal rights or even equal citizenship for both black and white
inhabitants. This form of constitutionalism could at best be described as
a hollow form of constitutionalism as it focused on form rather than on
substance.

Constitutionalism approached descriptively

and its disregard for substantive justice
The formalism and disregard for substantive claims
against injustice implicit in adopting a purely
descriptive approach to constitutionalism is illustrated
by the judgment in Harris and Others v Minister of the
Interior and Another.6 In this case, the appellants
applied for an order declaring the Separate
Representation of Voters Act7 to be unconstitutional
and invalid. This Act amended the Union of South
Africa Act, 1909 (or 1910 Union Constitution) to
remove coloured voters in the Cape Province from the
common voters’ roll. The appellants argued that the
amendment was passed following the wrong
procedure. Instead of passing the amendment by a
two-thirds majority at a joint sitting of both Houses of
Parliament (unicamerally) – as required by the 1910
Union Constitution – it was passed by a simple
majority in each House sitting separately (bicamerally).
The Appellate Division agreed with the appellants
and declared the amendment to be unconstitutional
and invalid. In arriving at its decision, however, the
Court focused on the formal provisions and procedural
requirements of the 1910 Union Constitution. It did
not look beyond the words of the Union Constitution
and engage in a substantive analysis of the purpose
underlying the special procedure protecting coloured
voters or the racist and unjust effects of the
amendment itself. The point here is that,
constitutionalism approached descriptively, is
 unconcerned with examining the substance of a
decision or conduct of persons or institutions
exercising constitutional powers; as in the Harris case,
one would be left only with procedural grounds to
determine whether the amendment was valid or not.

2.2.3 Constitutionalism understood prescriptively

More recently, the notion of constitutionalism has evolved into a more
ideologically infused concept. Under the influence of liberal political
philosophy, constitutionalism has evolved into a concept that is
concerned not only with describing the institutions and structures that
make up the constitutional system of a particular state, but also with
identifying and prescribing the norms and values on which a
constitutional system should be based. Unlike the descriptive concept
of constitutionalism, this concept prescribes the norms and values that
define what may be termed as constitutional government.8
Constitutionalism, thus conceived, demands that a particular
constitutional system adhere, at least, to the following norms and
values: the separation of powers; the rule of law; democratic self-
government; the protection of human rights; and the existence of an
independent judiciary.9
We discuss certain of these norms and principles in more detail
below. However, before doing so, we briefly discuss three different
models of constitutionalism that have influenced South Africa’s
constitutional development.

2.2.4 Constitutionalism in South Africa: a brief overview

2.2.4.1 Introduction
We discussed South Africa’s constitutional history in chapter 1 and will
not repeat it here. As noted in chapter 1, we do not agree with the view
that South Africa’s constitutional history can be explained solely with
reference to the formal structures imposed by the colonial rulers and
that South Africa’s constitutional history started in 1910. Nor do we wish
readers to lose sight of the bifurcated nature of the constitutional
arrangements in place from 1910 to 1994. However, as the governance
traditions of indigenous South Africans have had a limited impact on
the provisions of the South African Constitution, we focus here on the
colonial history of constitutionalism in South Africa. We, therefore, do
not claim that the models considered here are the only ones that have
influenced South African constitutional developments, but it is
arguable that they have had the most significant and identifiable
influence on the constitutional structure and content of present-day
South Africa.

2.2.4.2 The era of the dominance of the Westminster constitutional

model
As discussed in chapter 1, the 1910 Union Constitution 10 established a
colonial government that was tied to the British monarchy in several
significant aspects. Apart from these formal colonial ties, another
significant way in which such ties were manifested was in the
constitutional model adopted at the National Convention of South
Africa in 1908–1909 which led to the Union Constitution of 1910. The
Union Constitution adopted a manifestly Westminster form of
government which made no provision for a bill of rights and provided
little by way of constitutional guarantees limiting the power wielded by
Parliament.
The Westminster constitutional model has its origins in Britain.11
This model evolved over an extensive period of time during which it
developed certain distinctive features.12 Although the Westminster
constitutional model is premised on the British constitution, it is
interesting to note that Britain does not have a ‘written constitution’.
Instead, what is commonly known as the British constitution is actually
a series of conventions and ordinary laws in the form of statutes,
common law and case law that broadly regulate state power as well as
the relations between the state and its citizens.13 These laws taken
collectively comprise the British constitution. However, where the
Westminster model has been adopted, particularly in former British
colonies such as pre-democratic South Africa, Botswana, Lesotho and
Zimbabwe, the practice has been to reduce the constitution to writing.
At the heart of the Westminster model is the legislative branch,
namely Parliament. In Britain, Parliament comprises the House of
Commons (the directly elected lower House) and the House of Lords
(the unelected upper House). Parliament lies at the heart of the
Westminster model because it exercises sovereign or supreme law-
making powers. This means that the laws passed by Parliament cannot
be undone by any organ of state except Parliament itself.14 This
characteristic feature of a Westminster-style constitution is known as
parliamentary sovereignty or parliamentary supremacy. An important
consequence of parliamentary sovereignty is that every law, including
those that protect fundamental human rights, can be altered by
ordinary parliamentary action. In addition, Parliament is said to have
the power to make any law on any subject.
The contemporary position, however, is not so clear-cut. First, the
United Kingdom’s accession to the European Union has subjected
Parliament, to some degree, to the laws of the European Community.15
Given, however, that Britain formally withdrew from the European
Union on 31 January 2020, these limitations no longer apply. Second, it
has long been recognised that there are certain measures that it would
be politically impossible to adopt and whose enactment would never be
attempted.16 Parliamentary sovereignty in Britain, properly understood,
thus ‘denotes only the absence of legal limitations, not the absence of all
limitations or … inhibitions, on Parliament’s actions’.17 Such exceptions
notwithstanding, the fact that Parliament is the ultimate law-making
authority does not excuse or exempt it from being bound to respect the
rule of law.
Another notable feature of this constitutional model is the formal
separation between the head of state and the head of government. In
practice, the head of state in Britain is the monarch (currently Queen
Elizabeth II) while the head of government is the Prime Minister. After
an election, the monarch calls on the leader of the majority political
party in the House of Commons (or the person chosen by a coalition of
parties where no party has achieved an overall majority and a coalition
has been formed) to form a new government. The Prime Minister is the
head of this new government and is usually the leader of the majority
party in the House of Commons. The government is formed and
governs in the monarch’s name as long as it retains the support of a
majority of members of the House of Commons.18 Political parties thus
play an important role in forming a government and retaining it in
power.
A closely related feature of the Westminster constitutional model is
that of parliamentary government. Parliamentary government means
that the executive branch of government, namely the Prime Minister
and the Cabinet, is appointed from and continue to be members of
Parliament. The Prime Minister and his or her Cabinet thus serve both
as members of the legislature and as members of the executive at the
same time.19 Unlike in the United States, there is no strict separation of
powers between the legislature and the executive. The Prime Minister
engages in regular question-and-answer sessions in the House of
Commons during the Prime Minister’s questions time where he or she
verbally spars with the leader of the opposition and other members of
opposition parties. The effect of this practice is that Parliament exercises
oversight over the executive. Members of the executive are required to
account to Parliament as to how they exercise their powers in
conducting government business, including the development of policy
and the implementation of the law, on a continuous basis.
Apart from conferring supreme authority on Parliament, the
doctrine of parliamentary sovereignty also has important consequences
for the courts. Perhaps the most important of these is that under this
model the courts do not have the power to decide on the
constitutionality of legislation passed by Parliament. Instead, their
powers are limited to reviewing administrative decisions taken by
Ministers and other members of the administration. The effect of this
limitation on the courts’ powers is that it makes them institutionally less
powerful than the legislature. However, this does not mean that the
courts do not enjoy significant powers or that they are any less
important than the legislature within the entire scheme of governance
under this constitutional model. While the courts may not have
constitutional review powers, they do, when adjudicating matters, have
a significant opportunity to influence how the law is interpreted and
applied as well as its impact in a given situation.
In 1961, South Africa cut ties with the British Commonwealth and
adopted a republican Constitution.20 Institutionally, very little changed
from the previous Westminster-style Union Constitution, save that the
head of state was no longer the British monarch and the position of a
state president was created to serve a similar ceremonial role previously
occupied by the monarch.21 In terms of the Republic of South Africa
Constitution Act 32 of 1961 (1961 Constitution), the prominence of
parliamentary sovereignty as a defining constitutional feature was left in
no doubt as the doctrine was provided for in explicit terms. Section 59
of the 1961 Constitution reads as follows:
Parliament shall be the sovereign legislative authority in and over the Republic,
and shall have full power to make laws for the peace, order and good
government of the Republic.

No court of law shall be competent to enquire into or to pronounce upon the

validity of any Act passed by Parliament other than any Act which repeals or
amends or purports to repeal or amend the provisions of section one hundred
and eight or one hundred and eighteen.22

Given the bifurcated nature of the state and the apartheid policies of the
National Party (NP) which governed South Africa from 1948–1994, it is
not surprising that during this period the NP government used
parliamentary supremacy as a powerful instrument to secure political
power for the white minority. In addition, the NP government used
parliamentary supremacy to insulate the many legal provisions which
discriminated against black South Africans and which restricted the
basic rights of citizens from effective judicial scrutiny.
Having said this, however, we must be careful not to confuse the
substance of the Westminster constitutional model with the abuses to
which it was put and can potentially be put. The British experience with
parliamentary supremacy is markedly different from that of its former
colony South Africa and bears testimony to the fact that as a model of
constitutionalism, there is nothing inherently flawed or problematic
with the Westminster model. Like all other constitutional models, it has
its strengths and weaknesses, but any weaknesses it may have are not
directly responsible for the system of racial or gender exclusion and
apartheid. Often, such weaknesses can be traced back to problems with
the political culture and political parties and not necessarily with
constitutional structures.
However, the tainted history of the Westminster system in South
Africa most likely contributed to it not being wholly adopted as the
preferred model during constitutional negotiations in the early 1990s.23
While the end of apartheid brought with it an end to the era of
parliamentary supremacy in South Africa, aspects of the Westminster
system nevertheless found their way into the South African Constitution
in amended form.

2.2.4.3 The era of constitutional supremacy

2.2.4.3.1 Introduction
We discussed the history of the constitutional negotiations in chapter 1
and detailed the context that informed the choices made by the drafters
of the Constitution. In this section, we therefore describe and discuss
the prominent features of South Africa’s democratic Constitution that
arose from constitutional negotiations.

2.2.4.3.2 Constitutional supremacy

By far the most definitive feature of South Africa’s post-apartheid
constitutional system is that of constitutional supremacy. This notion of
a supreme constitution is an important one on which South Africa’s
democratic constitutional dispensation is based. The supremacy of the
Constitution is referred to in the Constitution, first, as one of the
founding values on which the Republic is based and, second, as a
binding and enforceable rule.
Section 1(c) of the Constitution thus provides that: ‘The Republic of
South Africa is one, sovereign, democratic state founded on the
following values … [s]upremacy of the Constitution and the rule of law.’
And section 2 of the Constitution goes on to provide that: ‘This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled.’24
The decision by the drafters to adopt a system of constitutional
supremacy has had far-reaching implications for how the current
democratic state operates, how the various structures and institutions
of governance relate to one another and how governmental power is
exercised. What is of interest to us here (and this is a question that is
peculiar to the South African Constitution), however, is whether there is
a difference between constitutional supremacy as a value captured by
section 1 of the Constitution and constitutional supremacy as a binding
and enforceable rule set out in section 2. Notionally, we would assume
that there should be some difference or significance to the drafters
having included the idea of constitutional supremacy in two different
provisions with two differing connotations.
However, judging from the case law, it appears that the courts have
made nothing of the difference between the two concepts. In fact, we
find that there are few references in the case law to these provisions,
save for passing, unsubstantiated references to the fact that the
Constitution is supreme.25 With respect to the declaration of supremacy
in section 2, a possible reason put forward for the lack of judicial
consideration of it is ‘due to the clarity of the rule it states’.26 In other
words, there is little room for alternative interpretations of the
provision. This position finds support in the General Provisions Chapter
27
of the Constitution in which section 237 demands that ‘all
constitutional obligations must be performed diligently and without
delay’.
The procedure for amending section 1 of the Constitution differs
from and is more stringent than the procedure for amending section 2.
A bill amending section 1 may be passed only with a supporting vote of
at least 75% of the members of the National Assembly (NA) and the
support of at least six provincial delegations in the National Council of
Provinces (NCOP).28 A bill amending section 2 may be passed simply
with a supporting vote of two-thirds of the members of the NA.29
However, it is doubtful that Parliament would be able to amend section
2 without infringing on the values set out in section 1. If this happens,
the constitutional question will arise whether the amendment of
section 2 in effect amends section 1 and thus requires the more onerous
amendment procedure to be followed to be validly passed.
While little seems to turn on whether constitutional supremacy is
appealed to as a value or a binding and enforceable rule, constitutional
supremacy is certainly a defining feature of South African
constitutionalism as it renders the entire Constitution justiciable. Any
law or conduct can be tested against the provisions of the Constitution
and must be declared unconstitutional and invalid if it fails to comply
with these provisions. Given the justiciability of all rights and duties in
the Constitution, an important incidence of constitutional supremacy,
therefore, is the institutionalisation of judicial review which enjoins the
courts to declare any law or conduct inconsistent with the Constitution
invalid.30 This power vested in the judiciary is an important one that
secures the rights of all rights-holders under the Constitution as well as
securing the Constitution itself against violation as no authority or law
is higher than the Constitution. We discuss the institution of judicial
review further in this and subsequent chapters of this book.

Exploring the effects of the supremacy of the

Constitution on the legal system
Chaskalson P conveyed the primacy (or supremacy) of
the Constitution lucidly and strongly in Pharmaceutical
Manufacturers Association of South Africa and
Another: In re Ex parte President of the Republic of
South Africa and Others where he stated: ‘There is only
one system of law. It is shaped by the Constitution
which is the supreme law, and all law, including the
common law, derives its force from the Constitution
and is subject to constitutional control.’31 This
declaration by the Constitutional Court is pivotal for
South African law in general as it affirms the
Constitution as the founding law of the Republic. It
also affirms the unity of the South African legal system
which derives its legitimacy and its binding force from
the Constitution alone. Michelman explained the
further significance of this passage as follows:
In those two sentences, the CC [Constitutional Court] claims for
the Final Constitution [FC] not just one special virtue as
compared with the rest of South Africa’s laws but three of them,
two of which go well beyond the claim (which also is there) for the
Constitution’s supremacy in the unadorned, norm-trumping sense
declared by FC s 2. The first of these additional claims is for the
pervasiveness of the Final Constitution’s norms – ‘all law … is
subject to constitutional control.’ The second is the claim for the
Final Constitution’s status as the basic law of South Africa – ‘all
law … derives its force from the Constitution.’ Certainly there is no
other law in South Africa of which it may be said either that all
(other) law is subject to its control or that the force of all (other)
law flows or stems from it. Now, a law to which these unique
virtues are ascribed, along with trumping-sense supremacy, would
be about as superlatively – or ‘radically’ – supreme as a law can
get. Suppose, then, that the CC’s attribution to the Final
Constitution of the three special virtues combined could be seen
to posit or reflect a value to which South Africa’s embrace of the
Final Constitution could defensibly be said to have committed the
country; a value, that is, that stands distinct from and additive to
the other human and societal goods posited as founding values
by FC s 1. If we could see the threefold attribution in such a light,
then we might understand ‘supremacy of the Constitution’ as it
occurs in FC s 1’s list of founding values to be the textual pointer
toward the CC’s claims in Pharmaceutical Manufacturers for the
pervasiveness and the basic-law status, as well as the normative-
trumping force, of the Final Constitution … . ‘Supremacy of the
Constitution’ names the value of legal-systemic harmony in the
service of the vision of the good society staked out by the entire
list of founding values set forth in FC s 1 and instinct in the rest
of the Final Constitution. We deal here with the value of the unity
of the legal system — meaning the system’s normative unity or, as
one might say more poetically, its visionary unity. The value in
question is the value of having all the institutional sites in which
the legal order resides — and especially all of its courts of law —
pulling in the same and not contrary directions, working in
ultimate harmony (which is not to say without difference and
debate) toward the vision (the elements of which must always be
open to interpretation) of a well-ordered South African society
depicted in very broad-brush fashion by the other founding values
listed in FC s 1: human dignity, equality, human rights and
freedoms, non-racialism, non-sexism, and the basic
accoutrements of an open, accountable, representative-
democratic system of government.32
 If Michelman is correct, it means that the Constitution,
and the norms or values enshrined in it, must now
animate all aspects of South African law (as
interpreted, developed and applied by all South African
courts) in the pursuit of justice. The supremacy of the
Constitution then signifies not only the absolute unity
of the legal system, but such a unity that stands in the
‘service of transformation by, under, and according to
law’.33 No aspect of South African law, including the
common law and customary law, would then be
immune from the influence of the basic values of
human dignity, equality, human rights and freedoms,
non-racialism and non-sexism, as well as the basic
accessories of an open, accountable, representative-
democratic system of government which are embodied
in the Constitution. Any development of the common
law and customary law will have to occur with
reference to these basic constitutional values. The
principle of constitutional supremacy, in this
understanding, will thus have a far more profound
effect on the legal system than merely indicating that
all law inconsistent with the specific provisions of the
Constitution will now be unconstitutional. The trajectory
of the development of all forms of law in South Africa
will be fundamentally altered by the supremacy of the
Constitution, thus understood. This radical aspect of
South Africa’s constitutional model is not always
appreciated by lawyers and judges who continue to
work with the common law, customary law and
legislation as if these are entirely insulated from the
norms enshrined in the Constitution.

2.2.4.3.3 A value-based constitutional system

Section 1 of the Constitution affirms that the South African
constitutional model aspires to higher values and prescripts than
merely majoritarian democracy. This section sets out some of the most
important values on which the South African constitution model is
founded. Section 1 reads as follows:
The Republic of South Africa is one, sovereign, democratic state founded on the
following values:
(a) Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections
and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness.

Section 1 of the Constitution is of profound importance as it sets out the

foundational values on which the current constitutional dispensation is
based. In so doing, it is self-evident that these values reflect a break
from the past and establish the foundations of a new society in the
making. This society is governed by law, but the law derives its force
from the Constitution and its development is animated by the values
contained in section 1 of the Constitution. The importance of these
values within the overall constitutional scheme is reflected in the fact
that section 1 is an entrenched provision that can only be amended
subject to special procedures and majorities being attained in
Parliament.34

Amending the founding provisions of the

Constitution
The founding provisions are often lauded as being
central to South African democracy and, as Michelman
points out, to the legal system as a whole. However, we
will see below that the values they protect are not
inviolable. The founding provisions may be amended
provided 75% of the members of the NA and six
provinces in the NCOP vote for such an amendment.
Therefore, Parliament could alter the provision that
states that the Constitution (and not Parliament) is
supreme if a required majority of members of the NA
and delegations in the NCOP support this. So too
could the provisions that state the values of human
dignity, the achievement of equality and the
advancement of human rights and freedoms. If
Parliament were to make an amendment of this kind to
the Constitution (an unlikely scenario as no political
party has ever acquired the 75% majority in the NA), it
would be possible to restore Parliament to the position
of supremacy it enjoyed during the apartheid era. Such
a Parliament would also be able to abolish the rule of
law.
Some critics argue that it would have been more
prudent of the drafters of the Constitution to have
made section 1 unchangeable (something the German
constitution-makers did)35 to safeguard the democratic
and non-racial character of the South African
constitutional system. Others argue that circumstances
and the political, economic and social context in a
country may change over time and that future
generations should not be absolutely and finally held
to ransom by the drafters of the 1996 Constitution.
Such a system, they say, would in extreme cases invite
the government of the day that enjoys legitimacy and
overwhelming electoral support to suspend the
Constitution in its entirety.
How a person views this issue will depend on his
or her commitment to the values enshrined in section
1 as well as on his or her view of the political
landscape and whether an elected Parliament would
ever be able to muster the requisite heightened
 majority to abolish the basic values on which the 1996
Constitution is based.

Apart from the clearly articulated values found in section 1, there are
also some unarticulated values embodied in the Constitution which,
together with those in section 1, form the normative basis of how the
South African Constitution is to be interpreted.36 In other words, our
Constitution does not simply set out the rules, processes and structures
that place limits on governmental power. The Constitution also
expresses itself on the ideals and characteristics to which we, as a
society, deem worthy to aspire. This idea should be familiar to us as it is
derived from the notion of a value-based democratic order as found in
the German model discussed above.37 In the South African context, the
courts have recognised the significance of the value-based
constitutional system where they have asserted that the democratic
constitutional order has established an ‘objective normative value
system’.38 However, this notion, while self-evidently important, has not
been the subject of much attention from the courts 39 or academic
commentators in South Africa.40

2.2.4.3.4 Co-operative ‘federalism’

The final characteristic of South African constitutionalism that we shall
discuss in this section is that of the federal division of power. The
Constitution provides for what can be deemed a quasi-federal division
of power across three levels or spheres of government, namely national,
provincial and local spheres. This system differs from the traditional
federal system where the powers and functions of different levels of
government are clearly delineated and where each sphere is
empowered to deal exclusively with certain distinct subject matters.
According to Chapter 3 of the Constitution, the model adopted is
that of ‘co-operative federalism’ or co-operative government. Chapter 3
makes it clear that while the three spheres of government are distinct,
all three spheres are expected to work together to deliver the vision of
the Constitution.41 Rather than competing with each other, the
Constitution envisages a co-operative relationship between the three
levels of government that entails their sharing responsibilities in an
interdependent manner.42
Co-operation between the three levels of government is not always
easy, especially if different political parties govern different entities in
different spheres. For example, if the African National Congress (ANC)
governs nationally, the Democratic Alliance (DA) governs the Western
Cape Province and a coalition of political parties governs one of the
municipalities in the Western Cape, this will present specific challenges.
In terms of Chapter 3, the ANC national government, the DA Western
Cape government and the coalition municipal government are required
to co-operate with each other. This task is made even more difficult as
the national government, the provincial governments and
municipalities sometimes are all empowered to deal with a specific
subject matter, for example, the provision of housing. If political parties
are unable to work together, the governments in the various spheres will
not be able to deliver on their housing mandate in an effective manner.
This is why the provisions of Chapter 3 are of utmost importance for the
smooth running of the country. We will discuss the details of co-
operative federalism in chapter 8 of this book.

Critique of constitutional supremacy

The decision to opt for a model of constitutional
supremacy in South Africa has been criticised on the
ground that it shifted power from the legislature and
the executive to the judiciary. An article written in 2011
by Ngoako Ramatlhodi encapsulated this criticism as
follows:
We have a Constitution celebrated as the best in the world. Some
would say it is the most progressive, while others would call it the
most liberal. A brief analysis of the conditions and forces that
gave birth to our Constitution seems to be in order. In case we do
not remember, the collapse of the then Soviet Union provided the
most immediate catalyst to the process of negotiations for a new
 and democratic South Africa. In apartheid South Africa in the late
1980s, the regime could only keep a modicum of law and order
through a state of emergency. The masses were no longer willing
to be ruled in the same old way.

An orderly retreat for the regime meant giving up elements of

political power to the black majority, while immigrating
substantial power away from the legislature and the executive and
vesting it in the judiciary, Chapter 9 institutions and civil society
movements.

Interestingly, and perhaps reflecting the balance of forces at the

time, the movement was willing to make this fundamental and
substantive concession. However, the concessions described
cannot be explained only as a reflection or result of a balance of
forces at the time. In this regard, one ventures to suggest that the
negative experience of the apartheid government by the
oppressed might explain the ease with which the liberation
movement embraced what one calls the emptying of the state.

Apartheid forces sought to and succeeded in retaining white

domination under a black government. This they achieved by
emptying the legislature and executive of real political power. On
the other hand, the liberation movement was overwhelmed by a
desire to create a society bereft of any form of discrimination and,
as a result, made fatal concessions.

We thus have a Constitution that reflects the great compromise, a

compromise tilted heavily in favour of forces against change.
However, there is a strong body of thought arguing the view that
our Constitution is transformative. In this regard, a point needs to
be made that a constitution can either be progressive or
reactionary, depending on the balance of forces in the society it
governs.43

2.3 Separation of powers

2.3.1 The purpose and principles of the doctrine of

separation of powers
Constitutional restrictions on the exercise of public power can be both
procedural and substantive. Giving effect to these restrictions is
primarily achieved through a justiciable bill of rights and the
constitutional commitment to other values such as the rule of law. The
exercise of public power can also be restricted in a structural way. One
of the most important mechanisms through which this is achieved in a
constitutional democracy is through the separation of powers.44 The
separation of powers doctrine seeks to limit the powers of each
individual branch of government: the legislature, the executive and the
judiciary. The doctrine, therefore, is the basis for an institutional
division of public power to create a society in which the abuse of power
by government is curtailed and public power is exercised wisely, or at
least prudently, and not in an abusive manner.
The South African Constitution makes no express mention of
separation of powers. However, Constitutional Principle VI in the
interim Constitution required that the final Constitution incorporate a
separation of powers between the three branches of government as well
as the appropriate checks and balances on the exercise of power of each
of these branches to ‘ensure accountability, responsiveness and
openness’.45 It is against this background that the doctrine of separation
of powers must be seen as forming an integral component of South
African constitutionalism.
Historically, as a means of limiting governmental power, separation
of powers is primarily concerned with establishing structural limits on
the exercise of power. As a mechanism to achieve this broad aim,
separation of powers seeks to ensure that power is not concentrated in
one institution or branch, or in one person or office. This is to prevent
abuses of power by an all-powerful government which has
concentrated all power in one institution or in one individual such as a
president. Separation of powers can be said to be premised on the
understanding that rather than trusting in the benevolence of rulers, a
more predictable and transparent way to prevent tyranny is by
distributing power between different branches of government which,
individually, can be better held to account. Such distribution seeks to
limit the possibility of an overconcentration of power in any one branch
and also to create some level of exclusiveness or specialisation of
functions in each of the branches.
 Beyond limiting governmental power by distributing it, the modern
conception of separation of powers is also closely associated with the
protection of rights and liberties more generally in addition to
safeguarding political liberty. The institutional nature of the separation
of powers, therefore, can be seen as having as its central aim the
prevention of the abuse of power through extra-constitutional conduct.
Before discussing separation of powers in some depth, it is
worthwhile to lay out the four principles that make up the modern
concept of the doctrine.46 The four principles are as follows:
• First, there is the principle of trias politica. This principle divides
governmental power across the three branches, namely the
legislative branch (Parliament), the executive branch
(president/prime minister and cabinet) and the judicial branch (the
courts). Despite its distinctly European roots, this division has
become one of the definitive features of modern states.
• Second, there is the principle of separation of functions. This
principle provides that distinct areas of responsibility and authority
must be conferred on each of the three branches of government. It
thus prevents one branch from taking responsibility for the tasks
allocated to another branch.
• Third, there is the principle of separation of personnel. This
principle provides that each branch of government must have
specific persons assigned to it who are responsible, often
exclusively, for the performance or execution of that branch’s
functions.
• Last, the provision of checks and balances entails that each branch
must be held accountable by the other branches to check the
exercise of power by each branch. In certain circumstances, this
allows one branch to veto the actions taken by another branch. This
ensures, first, that the branches remain connected in the discharge
of their functions, and second, that the branches hold each other to
account where provided for by the constitution.
Figure 2.1 Separation of powers doctrine

The principles set out above are generally accepted as the pillars on
which the doctrine of separation of powers is based. However, it is
acknowledged that no constitutional system encompasses a full
separation of governmental authority where power is exercised by each
individual branch of government in isolation from the others.47 Instead,
the division of power, functions and personnel, and the provision for
checks and balances, differ extensively among constitutions that
subscribe to the doctrine.

2.3.2 A brief history of the doctrine of separation of powers

The doctrine of separation of powers as a distinct theory of government
is often said to have its origins in the political philosophy of the
Enlightenment in seventeenth-century Europe.48 However, this may be
an oversimplification. Although no separation of powers as currently
understood existed in pre-colonial southern African societies because
traditional leaders performed all functions of government,49 traditional
leaders were nevertheless expected to consult with an advisory body or
to seek approval from the population at large. They could not take any
important decision without discussing it first in the council. This
allowed for a check on the exercise of power by the relevant chief.50
Nevertheless, the modern concept of separation of powers is said to
have emerged as a model to explain the English constitutional model
developed by John Locke.51 Locke’s writing on this topic emerged in the
wake of the constitutional developments in England which ended the
absolute power of the monarch. Locke was concerned that absolute
monarchic power should not be replaced by absolute parliamentary
power. His writing therefore wrestled with ways of countering the
power-accumulating tendencies of those in power and the tendency of
those in power to abuse the power they accumulated.52 Locke never
envisaged the separation of powers between the executive and the
judiciary. This task fell to French theorist, Charles Baron de
Montesquieu, who devised the modern concept of separation of powers
as we know it today.53 This concept envisaged the division of
governmental power into the trias politica, namely the three branches
of government, the legislative branch, the executive branch and the
judicial branch.
The development of the modern concept of separation of powers
must be seen against a history of absolute monarchy that existed in
many parts of Europe in the seventeenth century.54 During these times,
kings or queens were believed to rule by divine right. This meant that all
powers of governance were located in the person of the king or queen. It
was, therefore, against the danger of an overconcentration of power in
the hands of the monarch that the need to distribute and balance power
became self-evident. At the time, such ideas were regarded as
revolutionary as they sought to bring about radical social change. This
included the disruption of the prevailing social order in which power
was the preserve of a narrow ruling class who were closely associated
with the monarch.55 While initially conceived as a reaction to the
absolute power of kings, the central concern of preventing an over-
accumulation of power remained at the core of the development of the
doctrine as constitutional theorists, such as Locke, warned against the
dangers of any one institution, even Parliament, having too much
power.56 This modern concept was to find its earliest, clearest expression
in a constitutional document with the adoption of the US Constitution
wherein the idea of separation of powers provided a basis for the
distribution of power and the very structure of government.

2.3.3 Separation of powers: the South African experience

2.3.3.1 Introduction
As mentioned above, Constitutional Principle VI in the interim
Constitution required that the final Constitution incorporate a system of
separation of powers. However, this Principle was silent as to the exact
nature of the distribution of power between the three branches and the
institutional limits to be put in place on the exercise of power by each of
the branches. Instead, what Constitutional Principle VI did specify was
the purpose for which the separation of powers had to be incorporated
into the 1996 Constitution. This purpose was to uphold and safeguard
important democratic values and norms, namely ‘accountability,
responsiveness, and openness’.57 It was, therefore, left to the drafters of
the 1996 Constitution to determine how the South African model of
separation of powers was to be conceptualised and incorporated.
Note that there is no universal model of separation of powers.
Moreover, in democratic systems of government in which checks and
balances result in the imposition of restraints by one branch of
government on another, there is no separation that is absolute.58 The
concept can be incorporated in a constitution in different ways: it can
require a more or less strict separation of functions and personnel as
well as more or less powerful mechanisms that would allow one branch
of government to enforce checks and balances on another. In
interpreting the separation of powers in the South African context, what
is clear is that the Constitutional Court is reluctant to measure the South
African model against the standards of other countries or other models
of separation of powers. It is, therefore, important to recognise that we
must interpret and judge South Africa’s model of separation of powers
with our own historical experiences and political context in mind.59 The
Constitutional Court captured this idea crisply in De Lange v Smuts NO
and Others when Ackermann J wrote as follows:
I have no doubt 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 measures in
the public interest.60

The Constitutional Court has previously held that although there is no

explicit reference or mention of the separation of powers in the
Constitution, it is implicit in the Constitution and is of equal force as the
express constitutional provision that the separation of power usually
relies upon.61 This means that this apparent omission must be read
against the structure of the Constitution which clearly makes provision
for the separation of powers in terms of its institutional and substantive
arrangements.62 We can infer the implicitness of the doctrine in the
Constitution from the manner in which governmental power is actually
distributed primarily between the legislative, the executive and the
judicial branches of government. Other provisions in the Constitution
also support this implicit inclusion of the separation of powers doctrine.
These provisions include the regulation of the distribution of functions;
the identification of the appropriate personnel to perform the
functions; and, more generally, the framework of control of the
interaction between the branches of government and the personnel
therein. To demonstrate the substance of this implicit doctrine, we
discuss the methods by which separation of powers manifests in the
Constitution below.

Does the legislature in South Africa, in fact,

hold the executive accountable?
In Ex Parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996,63 the Constitutional
Court had to deal with arguments that the South
African Constitution, which provides for members of
the executive also to be members of legislatures,
contravened the principle of the separation of powers.
The reason advanced for this was that it did not allow
for a complete separation of personnel between the
legislature and the executive as members of the
Cabinet remain members of the legislature. By virtue of
their positions, Cabinet members are thus able to
exercise a powerful influence over the decisions of the
legislature. In rejecting this criticism, the Constitutional
Court noted that there is more than one model of
separation of powers and stated that:
While in the USA, France and the Netherlands members of the
executive may not continue to be members of the legislature, this
is not a requirement of the German system of separation of
powers. Moreover, because of the different systems of checks and
balances that exist in these countries, the relationship between
the different branches of government and the power or influence
that one branch of government has over the other, differs from
one country to another. The principle of separation of powers, on
the one hand, recognises the functional independence of
branches of government. On the other hand, the principle of
checks and balances focuses on the desirability of ensuring that
the constitutional order, as a totality, prevents the branches of
government from usurping power from one another. In this sense
it anticipates the necessary or unavoidable intrusion of one
branch on the terrain of another. No constitutional scheme can
reflect a complete separation of powers: the scheme is always
one of partial separation. In Justice Frankfurter’s words, ‘[t]he
areas are partly interacting, not wholly disjointed’. … As the
separation of powers doctrine is not a fixed or rigid constitutional
doctrine, it is given expression in many different forms and made
subject to checks and balances of many kinds. It can thus not be
said that a failure in the [final Constitution] to separate
completely the functionaries of the executive and legislature is
destructive of the doctrine. Indeed, the overlap provides a
singularly important check and balance on the exercise of
executive power. It makes the executive more directly answerable
to the elected legislature.64

It is unclear whether this view of the Constitutional

Court has proven to be correct. Although – as we will
see – the executive is in theory accountable to the
legislature, in practice this accountability can seem
illusory. This is because the members of the majority
party in the legislature are required to hold
accountable the members of the executive who are
also, more often than not, members of the leadership
of the political party to which the majority of members
of the legislature belong. It is not always easy for the
members of the legislature to hold the executive to
account when this would require them to challenge the
authority of the leaders of the political party to which
they belong. This difficulty is exacerbated by the fact
that members of the legislature are not individually
elected. Because of the electoral system in operation
in South Africa, they depend for their election to the
legislature on the leadership of the party to which they
belong.
The fact that it is not always easy for members of
the majority party to hold the executive accountable
because it requires them to challenge the authority of
the leaders of the party to which they belong has been
taken into account by the Constitutional Court in
United Democratic Movement and Others v Speaker of
the National Assembly and Others.65
In the United Democratic Movement case, the
court had to consider whether a section 102(2) motion
of no confidence vote could be held by secret ballot
where the Constitution was silent on this point. Among
the many reasons advanced as to why the Constitution
should be interpreted as allowing for this, the
applicant, an opposition party, suggested that it was
 necessary to allow for secret ballot voting to allow for
members of the majority party to vote with their
consciences in the public interest, as well as to protect
them from threats of violence and intimidation for
voting against the President. The Court held that the
Speaker of the National Assembly had a discretion as
whether to order a vote by secret ballot or not and that
the exercise of this discretion depended on the
prevailing circumstances. Mogoeng CJ stated in this
respect as follows:
The power to decide whether a motion of no confidence is to be
resolved through an open or secret ballot cannot be used
illegitimately or in a manner that has no regard for the
surrounding circumstances that ought to inform its exercise. It is
neither for the benefit of the Speaker nor his or her party. This
power must be exercised to achieve the purpose of a motion of no
confidence which is primarily about guaranteeing the
effectiveness of regular mechanisms. The purpose of that motion
is also to enhance the enforcement of accountability by allowing
Members of Parliament as representatives of the people to
express and act firmly on their dissatisfaction about the
executive’s performance in between general elections. It is
fundamentally for the advancement of good governance through
quality service delivery, accountability, the strengthening of our
democracy and the realisation of the aspirations of the people of
South Africa. The exercise of the power to determine the voting
procedure must thus always be geared to achieving the purpose
for which that power exists. The procedure in terms of which the
voting right is allowed to be exercised must brighten and enhance
the prospects of the purpose, for which it was given, being better
served or advanced.66

2.3.3.2 The legislature

A strict version of the separation of powers doctrine requires the
creation of a separate legislature with its own personnel empowered to
exercise its powers independently from the other branches of
government.67 Chapter 4 of the Constitution creates a slightly less strict
separation between the legislature and other branches of government.
As far as the separation of functions is concerned, the Constitution vests
the national legislative authority in Parliament,68 which consists of the
National Assembly (NA) and the National Council of Provinces (NCOP).
Chapter 4 also determines that the exercise of legislative authority,
broadly speaking, entails the power to make laws. This includes
amending the Constitution, making ordinary laws as well as the power
to assign or delegate Parliament’s legislative powers.69 When Parliament
exercises its legislative authority, it is only constrained by the fact that it
must act in accordance with and within the limits of the Constitution.70
Chapter 4 also specifies in whom the powers to legislate vest. These
powers are conferred on members of the legislature who comprise
members of the NA71 and delegates to the NCOP.72 In their capacity as
Members of Parliament, the Constitution empowers both members of
the NA as well as delegates to the NCOP respectively to regulate their
own processes.73 Closely related to this power, the Constitution confers
on the members of both Houses parliamentary privileges and
immunities for all speeches made in Parliament and its committees.74
We will discuss the content and limits of these powers and privileges in
chapter 4 of this book.
The South African Constitution does not provide for a strict
separation of powers between the legislature and the executive. First,
while it establishes Parliament as the distinct legislative branch with its
particular function of law making and its own personnel, the
Constitution also makes provision for the involvement of the executive
in the performance of the legislative functions.75 Apart from being
authorised to initiate and prepare legislation, members of the executive
also have the power to introduce bills in the NA and to develop and
implement policy.76 In addition to this, the executive enjoys limited law-
making powers in that it is empowered to make subordinate legislation,
a power usually conferred on the executive in the empowering
legislation.77
Second, there is an overlap in personnel between the legislature and
the executive: apart from the President and a maximum of two other
members of Cabinet, all members of the executive are also required to
serve as members of the NA.78 This connection between the legislature
and the executive can be seen simply as being rooted in and a
continuation of the Westminster tradition of parliamentary government
as discussed above. It can be argued that this overlap of the personnel
in the legislature and the executive should be judged in light of the
injunction in Constitutional Principle VI that there must be checks and
balances between the branches. Viewed thus, the close involvement of
the executive in the legislative process could be argued to serve the
purpose of promoting efficiency and accountability between these two
branches, especially considering that governing has and continues to
become more and more complicated with an ever-increasing need for
regulation. Members of Parliament do not always have the expertise to
make complex decisions on specialised topics. They therefore rely on
the executive to formulate policy and to translate policies into draft
legislation that is then scrutinised by the legislature. Where the
members of the executive and members of the legislature overlap, this
process (so it is argued) will run more smoothly, improving the
efficiency of both the legislature and the executive.

Does South Africa’s electoral system weaken

the power of the legislature?
The electoral system in force in South Africa requires
that political parties compile electoral lists from which
members of the NA and provincial legislatures are then
drawn after an election. Some argue that this system
weakens the legislature in relation to the executive.
This is because the leaders of the majority party, who
will often also be members of the executive, may have
a decisive say in who appears on the party’s election
lists. According to this argument, members of the
majority party in the legislature may be reluctant to
hold the executive to account – they have to safeguard
their position in the legislature and they have to
respect party discipline which requires strict adherence
to the dictates of the party. Such members of the
legislature may even bend over backwards to
implement the legislative programme of the executive.
This weakens the system of checks and balances that
goes hand-in-hand with any effective system of
separation of powers. Moreover, it is often argued that
in a modern state in recent times, the legislature has
declined in political influence in comparison to the
executive which ‘has burgeoned in size, influence over
the legislature and power over the citizenry’.79 This has
turned the legislature into an ineffective body in
relation to the executive whose members also
dominate the legislature and help to emasculate it.
However, it is unclear whether a change in the
electoral system would automatically strengthen the
separation of powers and improve the ability of the
legislature to hold the executive accountable. It has
been pointed out that at the local government level
half the municipal councillors are not elected via the
proportional representation party-list system, but
rather in constituencies. This has not necessarily
improved accountable and responsive government.
According to this view, merely changing the electoral
system will not change much. Unless the power of the
leaders of political parties to decide who is nominated
to contest constituency-based elections on behalf of
the party is weakened, the power of political leaders
who serve in the executive over the Members of
Parliament who are their juniors in the political party
will not be broken. How can independently elected
members of the legislature hold the executive
accountable if they know that they will only be re-
nominated as candidates in their specific seats to
contest the election on behalf of their parties if they do
not upset the leadership of their parties? 80
The Constitutional Court has had occasion to consider questions about
the power of the executive to interfere with the law-making functions of
the legislature in the important early Constitutional Court judgment of
Executive Council of the Western Cape Legislature and Others v President
of the Republic of South Africa and Others.81 This case involved a
challenge to provisions in an Act of Parliament which delegated powers
to the President, allowing him to amend the Local Government
Transition Act 82 by proclamation. The Constitutional Court readily
accepted that in a modern society, the act of governing would require
some level of delegation of law-making power to the executive.
Chaskalson P, writing the majority judgment, wrote as follows:
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. There is nothing in the Constitution which prohibits
Parliament from delegating subordinate regulatory authority to other bodies.
The power to do so is necessary for effective law-making. It is implicit in the
power to make laws for the country and I have no doubt that under our
Constitution parliament can pass legislation delegating such legislative
functions to other bodies.83

However, in this case, the delegation in question was found to be

unconstitutional. In coming to this decision, the judges of the Court
delivered several judgments, all concurring that the delegation was
invalid but for different reasons. A common thread, though, among the
judgments was the fact that while delegation of legislative power is
indeed permissible, the doctrine of separation of powers demands that
there be limits to the nature or the extent of the power to be delegated
by Parliament to the executive. It was with respect to the determination
of the extent or even the factors to be taken into account that the judges
failed to reach agreement.84 However, in spite of such disagreement, all
the judges concurred on the point that Parliament could not delegate its
plenary powers to make or amend a statute to the executive branch. By
attempting to do so, Parliament had contravened the separation of
powers principle inherent in the structure of the Constitution.

2.3.3.3 The executive

Chapter 5 of the Constitution vests executive authority in the
President,85 who is both head of State and head of the National
Executive.86 The Constitution provides a broad definition of the scope of
the executive function. In terms of the Constitution, the executive is
responsible for the development, preparation and implementation of
national policy and legislation as well as for co-ordinating the functions
of state departments and administration.87 More generally, the
executive is responsible for the execution and implementation of law,
policy and administration.
In the President’s capacity as head of State and head of the National
Executive, he or she is duty-bound to uphold and defend the
Constitution as the supreme law of the Republic.88 In terms of the
Constitution, the President exercises executive authority together with
the Cabinet, which comprises the Ministers.89 The President has the
power to appoint and dismiss the other members of the Cabinet who
serve at the President’s pleasure.90 Although enjoying the power to
select the Cabinet of his or her own choice, the President is constrained
by provisions of the Constitution that require him or her to select all but
two members of the Cabinet from the NA.91
While the executive function is undoubtedly an expansive one and
has significant powers, these powers must be viewed in light of other
constitutional provisions that place the executive under the scrutiny of
Parliament. In particular, the Constitution provides that members of the
Cabinet are accountable individually and collectively to Parliament.92
Although the accountability is to ‘Parliament’ as a whole, section 55(2)
affirms that, in effect, this power resides primarily with the NA.93
Cabinet members must also provide full and regular reports concerning
matters under their control.94 Beyond this, the Constitution confers on
the NA the ultimate checking power, namely the powers to remove or
recall the executive. These powers, on the one hand, permit the NA to
recall the entire Cabinet or only the Deputy President and Ministers by
way of a vote of no confidence by a majority of the members. This is
essentially a political power where the majority of members of the NA
have lost confidence in the Cabinet or in the President.95 On the other
hand, these powers also permit the NA to remove the President by way
of a two-thirds vote by the members where the President is found to
have violated the Constitution or the law, engaged in serious
misconduct or when she or he is found to be no longer able to perform
his or her functions of office. This is essentially the power of
impeachment.96

2.3.3.4 The judiciary

Unlike the relationship between the executive and the legislature, there
is an absolute separation in personnel and (arguably) 97 also in powers
between the legislature and executive on the one hand and the judiciary
on the other.98 This is the bedrock principle of the separation of powers
doctrine in a constitutional state. Thus, Chapter 8 of the Constitution
vests judicial authority in the courts,99 establishes a hierarchy of courts
comprising the Constitutional Court, the Supreme Court of Appeal
(SCA), the High Court of South Africa and the magistrates’ courts,100 and
establishes the Constitutional Court as the apex court in all matters.101
The primary function of the courts is the adjudication of legal
disputes, including those that require the interpretation and application
of the Constitution.102 For present purposes, our primary focus is on
courts’ constitutional jurisdiction, in particular the courts’ powers of
judicial review.103 As discussed above, the essence of judicial review is
that it empowers the courts to declare as constitutionally invalid any
law or conduct found to contravene the Constitution. The legislation or
actions declared invalid in this way will have no legal force or effect.
This means that the courts – with the Constitutional Court at the apex –
have enormous power to check the exercise as well as the abuse of
power by the other two branches of government. Unlike the US
Constitution where it took the Supreme Court’s own doing to assert its
powers of judicial review, the South African Constitution clearly makes
provision for judicial review in several ways. This includes specifically
conferring on the courts, including the High Court of South Africa and
the SCA, the power to declare law or conduct to be invalid to the extent
that such law or conduct is inconsistent with the Constitution.104
The Constitution also provides for the appointment of judges. Owing
to the important role played by the courts in enforcing the Constitution,
the process of the appointment of judges is carefully detailed and
regulated by the Constitution.105 In particular, the Constitution makes
provision for structures and procedures for the appointment of judges
that involve all three branches of government and other relevant bodies
and organisations through the involvement of the Judicial Service
Commission (JSC).106 A major part of the reasoning underlying the need
to include such detailed provisions and procedures for the appointment
of judges is the need to secure the independence of the judiciary.
Judicial independence is a fundamental concept of
constitutionalism in as far as the functioning of courts is concerned and
is a pivotal requirement for the effective functioning of the separation of
powers doctrine. This is evident in the manner in which the
Constitution provides for it. The Constitution demands that the courts,
in the exercise of their judicial authority, shall be independent and
subject only to the Constitution and the law which they must apply
impartially and without fear, favour or prejudice.107 As a safeguard for
the independence of the courts, the Constitution creates a prohibition
against interfering with the functioning of the courts that applies to
everyone, including other branches and organs of state.108 In addition to
this, the Constitution places a positive duty on organs of state to take
measures to assist and protect the courts in ensuring their
independence, impartiality, dignity, accessibility and effectiveness.109
These constitutional provisions seek to protect an important element of
independence, namely the institutional independence of the courts. In
this respect the Constitutional Court in South African Association of
Personal Injury Lawyers v Heath and Others made the point as follows:
The separation of the judiciary from the other branches of government is an
important aspect of the separation of powers required by the Constitution and
is essential to the role of the courts under the Constitution … Under our
Constitution it is the duty of the courts to ensure that the limits to the exercise
of public power are not transgressed. Crucial to the discharge of this duty is
that the courts be and be seen to be independent.110

The other important element of judicial independence relates to the

personal independence of judges. This is of crucial importance if they
are to perform their functions with impartiality and without fear, favour
or prejudice. The Constitution provides for such independence by way
of guaranteeing the judges’ security of tenure,111 as well as their salaries
and benefits which may not be reduced as long as they remain in
office.112
The judiciary, like the other branches, is subject to important checks
on its power. Judges may be removed from office before the end of their
designated tenure where they are proven to be suffering from
incapacity, or they have been found guilty of gross incompetence or
gross misconduct.113 The process for the removal of a judge entails the
JSC conducting an investigation and then making a finding on one of
the grounds previously mentioned.114 Thereafter, the matter would
come up for the consideration of the NA which must adopt a resolution
supported by two-thirds of all its members ordering the removal of the
judge in question. Where such a resolution is successfully passed, the
President is then obliged to effect the removal of the judge in
question.115

Table 2.1 The manner in which checks and balances are effected by each branch of government on the
others
2.3.3.5 The counter-majoritarian dilemma
In a constitutional democracy, like that established by the South African
Constitution, the Constitution and not Parliament is supreme. The
judiciary is independent and empowered to review and set aside the
actions of the other two branches of government. The judiciary thus
necessarily wields enormous power even though its members are not
democratically elected. Although this is a necessary result of the
particular system of separation of powers and judicial review adopted
by the drafters of the South African Constitution, this system raises
many conceptual and practical difficulties.
It is true that judicial review is an institution that is generally
accepted as being of central importance to the South African
constitutional project. However, judicial review, rather than serving to
answer or resolve important constitutional questions, raises many of its
own that go to the heart of our understanding of the relationship
between democracy and separation of powers. For example, if we
accept judicial review as being a legitimate practice in a constitutional
democracy, how do we account for the fact that judicial review allows
for the invalidation of laws supported by a majority? 116 How is it
possible that the judiciary can substitute its own decision for that of the
executive when declaring a particular government policy to be
unreasonable, even in instances where the executive has consulted
widely? 117 What makes the decision of a few unelected judges carry
more weight than the choices of the majority?
These questions taken together raise what is commonly referred to
as the counter-majoritarian dilemma or difficulty. The essence of the
dilemma is that judicial review, while recognised as having a legitimate
purpose in the main, involves the courts taking undemocratic decisions
that often go against the popular will.118 The obvious underlying
apprehension is that while the constitutional system may be founded
on democratic principles and practices, judicial review allows for the
democratic will to be displaced by unelected and seemingly
unaccountable judges.
 Given that the Constitution of the United States does not make
explicit provision for judicial review, it is not surprising that the
institution of judicial review has, for a long time, been the subject of
much controversy among US constitutional law scholars.119 At its core,
the enduring controversy around judicial review relates to concerns
regarding the nature and extent of the power that it places in the hands
of an unelected judiciary and that allows judges (i) to make decisions
with overtly political consequences and (ii) to encroach on the domain
of the other branches. These controversies have led to much debate on
the precise nature of the democratic curtailment and the separation of
powers issues raised by judicial review and how to resolve them or
otherwise account for them as being somehow aligned with
democracy.120 In the main, attempts to account for counter-
majoritarianism have elicited three types of responses:
• Some view judicial review as being a severe constraint on the
participation of citizens in political decisions affecting them and, as
such, see judicial review as being irreconcilable with the ideals of
majoritarian democracy.121
• Others downplay the significance of the difficulties judicial review
poses. They instead regard encroachments occasioned by judicial
review as contributing to the democratic process.122
• Yet others attempt to establish a workable interpretative theory in
terms of which judicial review can be justified as legitimising
judicial interventions in a manner that contributes to the attainment
of substantive democratic ends.123

While most of the debates have been conducted in a US context, we

must ask whether similar counter-majoritarianism concerns arise in the
South African context, particularly in light of the fact that our
Constitution clearly makes provision for judicial review. The short
answer to this question must be an unqualified yes. We will explore why
this is the case below.
The fact that the Constitution makes explicit provision for judicial
review is important as it confirms that the democratically elected
Constitutional Assembly freely chose a system of judicial review, thus
bestowing some democratic legitimacy on the process of judicial
review. However, apart from directly answering the question of the
constitutional basis for judicial review, such fact alone does not account
for why we should accept judicial review as a legitimate feature of South
Africa’s democracy. Given that judicial review operates in essentially the
same way irrespective of the jurisdiction and tends to result in the
curtailment of democracy in a generalised sense, it is also an issue in
South Africa. Of particular interest, however, in the South African
context, is the question of how we ensure that the courts perform
judicial review in a manner that balances the need to promote and
respect the majoritarian nature of our democracy while at the same
time ensuring that the Constitution’s transformative vision is enforced.
In other words, while the Constitution may provide for judicial review, it
is unable to determine in advance how judges will use the power of
judicial review. Given that the enforcement of the Constitution via
judicial review necessarily entails judicial interpretation, it becomes
important how judges make their decisions and whether they are
possibly influenced by their own political, religious, moral or cultural
viewpoints.124 Bearing this in mind, an important question then
becomes how society safeguards against judges using their powerful
positions to advance their own political, religious or moral interests. Put
differently, how do we as society guarantee that judges are enforcing the
Constitution rather than simply imposing their own will or morality on
the majority when they exercise the power of judicial review?

Does public acceptance of a court’s decision

as legitimate suffice to address counter-
majoritarianism concerns?
Let us take a moment to consider the case of
Makwanyane, the Constitutional Court decision that
struck down the death penalty. This matter resulted in
the judges of the Constitutional Court handing down
11 different concurring decisions, all of whom
determined that the continued use of the death
penalty was not in keeping with the letter and spirit of
the Constitution. This decision was in stark contrast to
the prevailing majority or popular sentiment that the
death penalty was in keeping with public morality and
the demands of a crime-riddled, divided society.125 In
capturing the prevailing public attitudes of the majority
and their influence on the judicial review, Chaskalson P
opined as follows:
The Attorney General argued that what is cruel, inhuman or
degrading depends to a large extent upon contemporary attitudes
within society, and that South African society does not regard the
death sentence for extreme cases of murder as a cruel, inhuman
or degrading form of punishment. It was disputed whether public
opinion, properly informed of the different considerations, would
in fact favour the death penalty. I am, however, prepared to
assume that it does and that the majority of South Africans agree
that the death sentence should be imposed in extreme cases of
murder. The question before us, however, is not what the majority
of South Africans believe a proper sentence for murder should be.
It is whether the Constitution allows the sentence.

Public opinion may have some relevance to the enquiry, but in

itself, it is no substitute for the duty vested in the Courts to
interpret the Constitution and to uphold its provisions without fear
or favour. If public opinion were to be decisive there would be no
need for constitutional adjudication. The protection of rights could
then be left to Parliament, which has a mandate from the public,
and is answerable to the public for the way its mandate is
exercised, but this would be a return to parliamentary sovereignty,
and a retreat from the new legal order established by the 1993
Constitution. By the same token the issue of the constitutionality
of capital punishment cannot be referred to a referendum, in
which a majority view would prevail over the wishes of any
minority. The very reason for establishing the new legal order, and
for vesting the power of judicial review of all legislation in the
courts, was to protect the rights of minorities and others who
cannot protect their rights adequately through the democratic
process. Those who are entitled to claim this protection include
the social outcasts and marginalised people of our society. It is
only if there is a willingness to protect the worst and the weakest
amongst us, that all of us can be secure that our own rights will
be protected.
This Court cannot allow itself to be diverted from its duty to act as
an independent arbiter of the Constitution by making choices on
the basis that they will find favour with the public.126

Interestingly, despite public opinion opposing the

abolition of the death penalty, most South Africans
nevertheless accepted the Constitutional Court
decision as legitimate. The question still remains,
however, whether public acceptance of a decision as
legitimate alone suffices to address the counter-
majoritarianism concerns raised above. We would
argue that it does not for at least three reasons:
• First, public acceptance of a court decision need
not necessarily mean that judges have acted in a
manner that actually promotes constitutionalism or
democracy.
• Second, what the public is willing to accept at any
given time does not necessarily reflect what is
acceptable in a democratic constitutional state.
• Third, and most importantly for us presently, public
acceptance takes us no closer to identifying a
sound theoretical basis that justifies why or even
how judges should exercise powers of judicial
review. In other words, for judicial review to be
palatable and address the concerns raised by the
counter-majoritarian dilemma, we need to have
some acceptable theoretical basis that assures us
that when judges decide a matter, they are
applying criteria of sufficient determinacy to
enable judges of different political, religious or
moral predispositions to arrive at generally
consistent results when faced with similar facts or
circumstances.
In light of the above, an obvious question that then bears asking is why
include judicial review in South Africa’s constitutional system if it poses
so many difficult conceptual and practical questions. A better question,
though, may be what the justification is for the inclusion of judicial
review in South African constitutionalism, taking into account the
curtailment of democracy it necessarily entails. Before putting forward
some arguments in support of the inclusion of judicial review, it is
necessary to concede that due to the nature of judicial review, it can
never be fully reconciled with a purely majoritarian concept of
democracy.127 The nature of the adjudicative function and the powers
exercised therein simply do not lend themselves to being exercised by a
plurality of the population in a democratic society. Therefore, if we
accept that the judiciary is to play a legitimate part in upholding the
Constitution, then we must be able to justify, in a reasoned manner,
why important decisions affecting millions should be left in the hands
of a relatively few unelected judges whose decisions may not
necessarily be wiser, more principled or moral that those of the majority
in a democracy. Despite inherent counter-majoritarian concerns, there
are several good arguments or justifications that have been put forward
in support of judicial review. We will discuss a few of these below:
• While judicial review does tend to diminish democracy from a
majoritarian point of view, democracy, when viewed substantively
and especially in a plural political society, is never simply majority
rule. While the elected representatives of the political majority must
exercise political power in a democratic society, this does not
necessarily give the majority free rein to govern in whatever way it
desires. There are in place mechanisms that regulate and limit the
exercise of power in a way that seeks to secure the welfare of all
members of a particular political community. Those subscribing to
this view would argue that where all people enjoy the same rights in
a democracy, all people are entitled to be treated as equals
irrespective of whether they are part of the majority or not.128
• Another argument in support of judicial review holds that the
judiciary is ideally positioned to decide on disputes and matters of
principle. The reasons for this are the specialised nature of judges’
 adjudicative expertise, the judiciary’s detached institutional
positioning relative to the other democratically elected branches
and its entrenched independence. According to those who hold this
view, the courts are institutionally stronger and better positioned
than the other two branches for purposes of protecting rights and
upholding democratic principles as they do not have to pander to
the demands that may be placed on the other branches by an
electorate.129
• Another argument in support of judicial review, related to the
preceding one, is that the courts can be seen as a forum that can
actually enhance democracy, particularly deliberative democracy.
Those subscribing to this view argue that the courts provide an
important platform where citizens may challenge the decisions or
actions of their elected representatives. In effect, citizens can enter
into a structured dialogue with elected representatives through the
courts.130

Counter-majoritarianism opening up the

possibility of a non-technical ethics
Van der Walt and Botha have a distinct view on the
counter-majoritarian difficulty and approach the matter
from a theoretically more critical perspective: 131
We wish to make clear from the outset that we have no solution to
the counter-majoritarian problem. We believe it is irresolvable …
[However,] the problem must be addressed. Irresolvable problems
are, after all, the only ones we can address. Resolvable problems
are not real problems. Resolvable problems are fake problems,
temporary technical hiccups, often spectacularly disguised as
crises. The counter-majoritarian problem and the problem of
significant social dissent are not technical hiccups. They
constitute aporias. They allow no way through. They confront us
with the impossible. Paradoxically, however, this impossibility
opens up the possibility of social deliberation that would exceed
technical procedure. It opens up the possibility of a non-technical
ethics. It gives politics a chance.
 In this view, although the counter-majoritarian problem
cannot be resolved, it can tentatively be addressed by
admitting that there will always be a tension between
the demand for democratic accountability on the one
hand and the demand for judicial review on the other.
How these demands are balanced against each other
in a given case will depend on many factors and may
well change over time. This approach is often
associated with a view of the Constitution as flexible
and open-ended.

These arguments briefly set out above merely represent some of the
views that have been put forward in an attempt to justify or account for
the inclusion of the institution of judicial review in a democratic system
of government. In and of themselves, they can be challenged and can be
found wanting in as far as completely dispelling accusations that
judicial review does tend to curtail or subtract from majoritarian
democracy. However, judging by the acceptance of judicial review in
some democratic societies, including South Africa, we can conclude
that there is some level of acceptance of the idea that there should be a
branch of government that must be tasked with the role of interpreting
and upholding the Constitution and the rights of all citizens. Put
differently, there appears to be some acceptance that for constitutional
democracy to flourish, it is sometimes necessary to employ some
outwardly undemocratic means to achieve long-term democratic ideals
such as inclusiveness, broad representivity, accountability and
transparency. It has been suggested that instead of glossing over judicial
review’s democratic deficit, there is a need to think of constitutions such
as South Africa’s as being mixed constitutions. The mixture in this sense
is that such constitutions, although grounded in democratic principles
and practice by necessity, also include an anti-democratic practice such
as the inclusion of judicial review.132
Figure 2.2 The counter-majoritarian dilemma

2.4 The rule of law

2.4.1 Introduction
An elemental feature of South African constitutionalism is the principle
of respect for the rule of law. The importance of the rule of law in South
African constitutional law is clearly demonstrated by the fact that the
rule of law is a founding value entrenched in section 1 of the
Constitution. However, there is some difference of opinion about the
scope and content of the rule of law and this is the subject of much
debate among constitutional law scholars.133 Apart from being a value,
the rule of law is also recognised as a pathway to review in terms of
which the exercise of public power in its various forms can be
challenged. In this section we briefly consider the rule of law in order to
detail its historical understanding under apartheid and then its
development and how it has been received by the courts in the
constitutional era.

2.4.2 A brief history of the rule of law

To understand the evolution of the rule of law, it is helpful to consider
an early formulation of the concept put forward by Dicey who is
considered to be one of the earliest proponents of the principle of the
rule of law writing in the English common law tradition.134

According to Dicey, the rule of law comprises three main principles:

• First, since the law is supreme, public power can only be exercised
in terms of authority conferred by law and no one may exercise
public power arbitrarily.
• Second, 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.
• Third, the ordinary courts are responsible for enforcing the ordinary
laws of the land, the common law and statute in a manner that
protects the basic rights of all so that these laws function as a
constitution. (Recall that Dicey wrote about the British
constitutional system in which there was, and there still is, no
written constitution in place.135)

Broadly speaking, the Diceyean conception of the rule of law has

remained an influential source even though substantially different
interpretations and applications of the rule of law have developed,
ranging from the formal to the substantive.
Figure 2.3 The Diceyean conception of the rule of law

The question of whether the rule of law was fundamentally respected

during the apartheid era, used to be controversial. The discussions
about this issue highlight the fact that respect for the rule of law on its
own is not sufficient to protect the basic rights of individuals in a
society. Although it later emerged that the apartheid state had also
flouted the very laws it claimed to respect by sanctioning in an explicit
or implicit way the extra-judicial killing and torture of political activists,
the apartheid government maintained that it respected the rule of law
because it governed in terms of laws duly passed by Parliament.
However, in as much as the apartheid government did so, it was only in
the formal sense that it could ever have been said to respect the rule of
law. The apartheid government relied to a large extent on the law to
enforce unjust and oppressive policies fashioned under the legislative
freedom conferred by parliamentary supremacy. It is well documented
how racist and violent laws were crafted, enacted, executed and
enforced through the combined force of state organs, including the
courts, acting in unison to bring about the NP’s mission of an exclusive
white state.136 The inherent unjustness and inequality of the system at
the time, however, did not prevent some from still speaking of the
system as being premised on the basis of the rule of law.137 This
equation of ‘rule of law with rule by law’ 138 represents a formalistic
understanding of the importance of law as an instrument of governance
rather than a substantive understanding that also concerns itself with
the content of the laws.139 Therefore, the understanding of the rule of law
under apartheid was mostly formalistic. This means that as long as there
was a legislative provision enabling governmental conduct, then the
enforcement of such law was generally considered to be lawfully
warranted.140 Such an approach clearly diminished the concept of the
rule of law and subjected it to much justifiable criticism.

The Law of Lagos

In 1960, the NP was consolidating its rule in South
Africa via the formation of an exclusive white republic
rooted in parliamentary sovereignty and a narrow,
formal conception of the rule of law. In numerous other
parts of the African continent the period of
decolonisation and independence was just
commencing. In an apparent response to these
changes, a movement developed that was driven by
the International Commission of Jurists (ICJ). The ICJ
sought to promote the rule of law in countries
undergoing the process of decolonisation. In 1961, the
ICJ hosted a conference in Lagos, Nigeria, on the role
of the rule of law in Africa. At the end of that
conference, the delegates produced what has become
known as the Law of Lagos. The Law of Lagos, which is
set out below, represents a radically different version of
the rule of law from the version that was promoted in
South Africa at the time.
The Law of Lagos

Having discussed freely and frankly the rule of law with particular
reference to Africa, and
Having reached conclusions regarding human rights in relation to
government security, human rights in relation to aspects of
criminal and administrative law, and the responsibility of the
judiciary and of the Bar for the protection of the rights of the
individual in society,

NOW SOLEMNLY

Recognises that the rule of law is a dynamic concept which

should be employed to safeguard and advance the will of the
people and the political rights of the individual and to establish
social, economic, educational and cultural conditions under which
the individual may achieve his dignity and realise his legitimate
aspirations in all countries, whether dependent or independent,

Reaffirms the Act of Athens and the Declaration of Delhi with

special reference to Africa, and

Declares:

1. That the principles embodied in the Conclusions of the Conference

which are annexed hereto should apply to any society, whether free
or otherwise, but that the rule of law cannot be fully realised unless
legislative bodies have been established in accordance with the
will of the people who have adopted their constitution freely;
2. That in order to maintain adequately the rule of law all
governments should adhere to the principle of democratic
representation in their legislatures;
3. That fundamental human rights, especially the right to personal
liberty, should be written and entrenched in the constitutions of all
countries and that such personal liberty should not in peacetime
be restricted without trial in a court of law;
4. That in order to give full effect to the Universal Declaration of
Human Rights of 1948, this Conference invites the African
governments to study the possibility of adopting an African
Convention of Human Rights in such a manner that the Conclusions
of this Conference will be safeguarded by the creation of a court of
appropriate jurisdiction and that recourse thereto be made
available for all persons under the jurisdiction of the signatory
states;
5. That in order to promote the principles and the practical
application of the rule of law, the judges, practising lawyers and
teachers of law in African countries should take steps to establish
branches of the International Commission of Jurists.

This Resolution shall be known as the Law of Lagos.141

 Although much could be said about the Law of Lagos,
we will limit ourselves to two comments that highlight
important substantive advances in the way the rule of
law is conceived here. First, the rule of law is
conceived as a ‘dynamic concept’. But what was
meant by this? Why was it important to isolate the rule
of law, draw attention to it and seek to entrench it as
an overarching principle applicable to any society, free
or otherwise? From the proceedings of the conference,
it seems that against the background of colonialism
and the demands of decolonisation, there was a
recognition of the dangers presented by a narrow and
formalistic conception of the rule of law. As such, the
Law of Lagos sought to transcend this by presenting
the rule of law as a positive rights-reinforcing principle
that promoted not only political rights, but one that
also self-consciously recognised its role as a
significant contributor to the attainment of the socio-
economic well-being of people. Second and most
significantly, the rule of law was here closely
associated with the ideas of the protection and
promotion of human rights and democracy rather than
simply being seen as a guarantee of the supremacy of
the law and the equal application of the law. This latter
view was being demonstrated in South Africa and other
colonies where it was deemed to be compatible with
laws that were patently unjust and unequal.

2.4.3 The rule of law under the 1996 Constitution

In spite of its chequered history in pre-democratic South Africa, the rule
of law has assumed a pre-eminent role in the current constitutional
dispensation. As already mentioned above, the rule of law, alongside
the supremacy of the Constitution, is enshrined as a founding value in
section 1(c) of the Constitution. This inclusion of the rule of law as a
founding value in the Constitution may at first glance seem peculiar
and unnecessary. This is so because the Constitution also establishes
the supremacy of the Constitution and contains an enforceable Bill of
Rights. The provisions of the Bill of Rights provide more extensive and
far-reaching protection against the abuse of power and the
infringement of human rights than could ever be afforded by the
principle of the rule of law. We may therefore ask whether we should
read or interpret this coupling to have more meaning than mere
drafting convenience. In other words, should the declaration of the rule
of law as a value alongside that of constitutional supremacy influence
our understanding of the rule of law in South Africa? To gain a better
understanding of the place of the rule of law in South African
constitutionalism, it is necessary to consider how it has been applied in
cases before the courts.
Interestingly, the rule of law continues to be an important
foundational concept in South African constitutional law. Its
prominence is evidenced by the manner in which the courts have
invoked the rule of law as a mechanism primed to limit, regulate as well
as give more precise meaning to how governmental power is exercised.
As such, the rule of law has emerged as a powerful practical principle
that can be invoked before our courts to ensure that the exercise of state
power conforms to basic minimum criteria. The rule of law, as a
pathway to review, has been invoked in many cases where it has been
raised as the basis of a constitutional challenge against Acts of
Parliament or the executive. This has occurred in cases where the
actions of the legislature or the executive were not challenged on the
basis that these actions somehow infringed on any of the rights
contained in the Bill of Rights.142
An early example of such a matter was that of Fedsure Life Assurance
Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others.143 This matter was decided under the interim
Constitution and entailed a challenge by Fedsure to the Johannesburg
local government’s powers to levy substantially higher property rates.
Fedsure initially instituted the challenge on the basis of an alleged
breach of its constitutional right to administrative justice.
 The Constitutional Court held that the powers under which the local
government acted were not administrative in nature and, therefore,
could not be tested against the right to administrative justice.
Nevertheless, the Court went on to hold that the powers exercised by
local government remained subject to the Constitution and, in
particular, the exercise of such powers was constrained by the rule of
law. The Court held that the local government was permitted only to
exercise powers that it had had lawfully conferred on it. In particular,
the Court held that the principle of legality – as an incidence of the rule
of law – is what determines whether public bodies act lawfully or not.
The Court made its point as follows:
The rule of law – to the extent at least that it expresses this principle of legality –
is generally understood to be a fundamental principle of constitutional law. It
seems central to the conception of our constitutional order that the legislature
and the executive in every sphere are constrained by the principle that they
may exercise no power and perform no function beyond that conferred upon them
by law.144 (our emphasis)

From the Fedsure case and subsequent cases, it would appear that the
principle of legality has become possibly the most important and oft-
invoked principle of the rule of law.145 As the Constitutional Court
explained, the principle of legality can be used by the courts to control
the exercise of public power. Thus, in Affordable Medicines Trust and
Others v Minister of Health and Another, the Court held that:
The exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality, which is part of that law.
The doctrine of legality, which is an incident of the rule of law, is one of the
constitutional controls through which the exercise of public power is regulated
by the Constitution … In this sense the Constitution entrenches the principle of
legality and provides the foundation for the control of public power.146

An obvious question at this stage must be what the principle of legality

is and why it has risen to such prominence in our understanding of the
rule of law. It is to this question that we shall turn briefly before
discussing its application in more detail below.
The principle of legality, as an incidence of the rule of law, has
emerged as a pathway of review which holds that the exercise of public
or governmental power is lawful only when such power is exercised
within the limits of the law, and in a rational manner.147 This means,
first, that a court can declare unconstitutional and invalid any exercise
of public power if that exercise is not authorised by law. Put differently,
when somebody purports to exercise public power but there is no legal
provision empowering that person to exercise the power, the exercise of
the power will be unconstitutional for breaching the principle of
legality. Second, it means that the power must be exercised in a rational
manner. The exercise of public power can be reviewed and set aside if
that power is not exercised rationally. To determine whether the
exercise of public power is rational, one must identify the legitimate
purpose for which the power was exercised, and ask whether there is a
rational relationship between the actual decision and its purpose. As
the Constitutional Court held in Democratic Alliance v President of
South Africa and Others:
Rationality review is really concerned with the evaluation of a relationship
between means and ends: the relationship, connection or link … between the
means employed to achieve a particular purpose on the one hand and the
purpose or end itself. The aim of the evaluation of the relationship is not to
determine whether some means will achieve the purpose better than others
but only whether the means employed are rationally related to the purpose for
which the power was conferred. Once there is a rational relationship, an
executive decision … is constitutional.148

Rationality review is limited in scope as it is not concerned with

whether the specific decision was a wise decision or whether the
decisionmaker could have made a better decision. Courts who review
the exercise of public power under the rationality standard must
therefore be careful not to interfere in a decision because they do not
like the decision or would have preferred the decisionmaker to make a
different decision. As the Constitutional Court explained in Albutt v
Centre for the Study of Violence and Reconciliation, and Others:
The Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not interfere with the
means selected simply because they do not like them, or because there are
other more appropriate means that could have been selected. But, where the
decision is challenged on the grounds of rationality, courts are obliged to
 examine the means selected to determine whether they are rationally related
to the objective sought to be achieved. What must be stressed is that the
purpose of the enquiry is to determine not whether there are other means that
could have been used, but whether the means selected are rationally related to
the objective sought to be achieved. And if, objectively speaking, they are not,
they fall short of the standard demanded by the Constitution.149

However, in Albutt the Constitutional Court expanded the principle of

rationality slightly by holding that not only the ultimate decision must
be rationally related to the purpose of that decision, but everything
done to reach the decision must also be rational. Both the process by
which the decision is made and the decision itself must therefore be
rational. The Court held that its conclusion that the process must also
be rational in that it must be rationally related to the achievement of the
purpose for which the power is conferred, ‘is inescapable and an
inevitable consequence of the understanding that rationality review is
an evaluation of the relationship between means and ends’.150
As a constitutional principle deriving from the rule of law, the
principle of legality is extremely useful in that where impugned conduct
is not administrative action, as was the case in Fedsure, then the
principle of legality may be readily invoked. In such an instance, the
principle of legality demands that, even where conduct or action is
taken in terms of an empowering provision, for such action to be
legitimate the actor in question must have acted within the limits of the
empowering statute under consideration.
The Pharmaceutical Manufacturers case serves as a good example to
bear out the point. In this matter, the President had mistakenly brought
into force legislation that required the prior or simultaneous
promulgation of regulations and schedules so that it could be
implemented properly.151 Despite his conduct being authorised by law,
the President was required to undo his erroneous action, therefore the
Constitutional Court had to decide whether his actions were reviewable
and the basis on which this could be done. The Court found that:
The President’s decision to bring the Act into operation in such circumstances
cannot be found to be objectively rational on any basis whatsoever. The fact
that the President mistakenly believed that it was appropriate to bring the Act
into force, and acted in good faith in doing so, does not put the matter beyond
 the reach of the Court’s powers of review. What the Constitution requires is that
public power vested in the executive and other functionaries be exercised in an
objectively rational manner. This the President manifestly, though through no
fault of his own, failed to do.152

The courts’ employment of the rule of law has not been limited to its
appeal to the principle of legality. The courts have also had occasion to
use the rule of law to demand that public officials not act in an arbitrary
way, or put positively, that they must exercise their powers in a rational
manner related to the purpose for which the power was given.153 In
Chief Lesapo v North West Agricultural Bank and Another, the legislative
provision in question allowed for the respondent bank to seize and sell
the property of defaulting debtors without any recourse to the courts.154
In the matter, Mokgoro J denounced the use of public power to perform
such acts and described them as self-help which is inimical to the rule
of law. In capturing the rule of law principle forbidding self-help,
Mokgoro J said the following:155
Self help, in this sense, is inimical to a society in which the rule of law prevails
… Taking the law into one’s own hands is thus inconsistent with the
fundamental principles of our law.156

Mokgoro J added further:

The Bank, as an organ of State, should be exemplary in its compliance with the
fundamental constitutional principle that proscribes self help. Respect for the
rule of law is crucial for a defensible and sustainable democracy. In a modern
constitutional state like ours, there is no room for legislation which, as in this
case, is inimical to a fundamental principle such as that against self help. This is
particularly so when the tendency for aggrieved persons to take the law into
their own hands is a constant threat.157

There are numerous other instances where a court has invoked the rule
of law as a principle in deciding cases or in its reasoning of the cases. A
few examples of such instances are as follows. The rule of law has been
invoked to demand that rules must be conveyed in a clear and
accessible manner for them to comply with the standards required by
the Constitution.158 The rule of law has, further, been invoked to
challenge legislation for vagueness and uncertainty where the
provisions of the legislation in question conferred broad discretionary
powers on a Minister.159 The Constitutional Court has also held that
judicial independence and impartiality are implicit in our
understanding of the rule of law as a constitutional principle.160
Overall, the rule of law seems to occupy pride of place as a
constitutional value alongside that of constitutional supremacy. The
rule of law simultaneously operates as an independent and enforceable
principle with an important and equally useful derivative in the form of
the principle of legality. We can thus argue that the current conception
of the rule of law is one that builds on the Diceyean understanding.
Judging from the manner in which the rule of law has been invoked in
our case law, it is evident that under the rubric of the rule of law, we are
now also concerned with the impact of laws on those affected, the
substantive content of laws as well as how public officials and bodies
exercise their powers even in the face of enabling laws. In short, our
conception of the rule of law under the Constitution is an evolving one.

Narrow versus expansive conceptions of the

rule of law
Some commentators 161 have argued that the inclusion
of the rule of law as a founding value in the South
African Constitution may be of little effect if the rule of
law is conceptualised in a narrow way as requiring little
more than legality and rationality from law makers and
state officials acting in terms of the law. They point out
that if the rule of law exists when the principle of
legality is observed, then the apartheid government
also largely observed this principle. The fact that law
was used as an instrument of apartheid ideology
would then simply show that the principle of legality or
the rule of law is by itself morally insignificant. What
matters is the content of the law – the nature of the
ideology of which the law is the instrument. It follows,
then, that the explicit commitment in the final
Constitution to the supremacy of the Constitution and
the rule of law is in itself empty. What matters is not
that commitment, but that the final Constitution
guarantees a list of rights and liberties. In addition, it
gives to the judiciary the authority both to ensure that
the exercise of public power has a legal warrant and
that any legal warrant is consistent with constitutional
guarantees.
However, this limited conception of the rule of law
is controversial in legal theory and was contested in
legal practice during apartheid. Lawyers who mounted
challenges to government oppression through law often
argued in court that the judiciary should read statutes
in the light of common law presumptions protecting the
individual interest in liberty and the equality of those
subject to the law. According to this view, only to the
extent that a statute explicitly requires that these
interests are not to be protected by the statute should
judges countenance that the legislature intended to
subvert rather than serve the interest of all those
subject to the law in liberty and equality. The idea is
that the commitment of the legal order to the
supremacy of the Constitution and to the principle of
legality includes constitutional, albeit unwritten,
commitments to protecting these interests. Should
officials implement statutes in ways that go beyond
these unwritten constitutional constraints, so judges
should find that they acted outside the scope of their
legal authority. This latter, more expansive, conception
of the rule of law is often referred to as a substantive
conception of the principle. The question arises
whether such a substantive conception of the rule of
law is required in South Africa, given the existence of a
 supreme Constitution and a justiciable Bill of Rights
which includes the right to fair administrative action.

2.5 Democracy

2.5.1 Introduction
The word democracy is widely accepted as deriving from a combination
of the Greek words ‘demos’ meaning the people (the citizenry) and
‘kratos’ meaning rule. It is therefore unsurprising that one of the major
rallying ideas underpinning the struggle for liberation in South Africa
was the demand of ‘democracy for all’.162 As unambiguous an aspiration
as that sounded, what it concealed was the fact that the concept of
democracy is one that can and has been described as ‘controversial’ 163
or is at the very least contested.164 The supposed ‘controversy’
underlying democracy is related to the fact that as a concept,
democracy has proven immensely difficult to define in a singular and
uncontested manner, with many writers preferring to provide their own
definitions or understandings of the word. Contributing to the
supposed ‘controversy’ is the fact that the term ‘democracy’ is
commonly used in conjunction, and possibly synonymously, with other
concepts such as ‘liberal’, ‘constitutional’ or ‘majoritarian’. Despite this
supposed ‘controversy’, democracy’s pre-eminence as one of the
dominant and enduring political ideas of modern times is unassailable.
Certainly, in the South African Constitution, the idea of democracy is a
prominent one that permeates virtually all aspects of the Constitution.
Beyond the Preamble, section 1 of the Constitution ushers in
democracy by declaring South Africa to be ‘a sovereign, democratic
state’. Section 1(d) builds further on this by setting out the democratic
values and principles on which South Africa is founded, namely
‘[u]niversal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness’. While not defining what
democracy means in South Africa, the section goes a long way towards
making explicit those elements of democracy that are paramount in the
South African constitutional context.165 In this section, we consider the
idea of democracy and its place in the South African constitutional
system.

2.5.2 Conceptions of democracy

Although democracy as a concept defies singular definition, it is
nonetheless imperative that we put forward an understanding of what
democracy entails. One conception that we have found useful for its
simplicity and clarity, particularly in a constitutional law setting, is that
put forward by Roux, who attempts to encapsulate the foundational
social idea of democracy as well as the contemporary political
understanding of democracy in practice. Roux tells us that:
[t]he core idea – that decisions affecting the members of a political community
should be taken by the members themselves, or at least by elected
representatives whose power to make those decisions ultimately derives from
the members – is more or less settled.166

This description, while it does not seek to be comprehensive, serves as

an adequate starting point as it can be adapted to speak to various
conceptions of democracy from the perspective of the persons affected
or from a perspective that recognises that modern democracy is
exercised mainly through institutionalised politics that entails citizens
electing individuals or organisations to represent their interests. This
idea of democracy, therefore, is linked to the notion that the will of the
people should prevail and that people should have a say in how they are
governed. It does not seek to convey any idealised form of democracy.
Instead, it seeks to convey the foundational reason for democracy,
namely that of enabling members of a political community to act
together in matters that affect them and to take decisions collectively
with respect to such matters. The fact that it also lends itself to a variable
understanding of democracy is of particular use in studying the
Constitution as the Constitution clearly embodies several different
conceptions of democracy. A study of the constitutional text will reveal
that there are several different conceptions or understandings of
democracy that can be identified, namely direct democracy,
representative democracy (such as a multi-party democracy),
participatory democracy and constitutional democracy.167 The
presence of the varied conceptions of democracy in the Constitution
serves to demonstrate not only the varied understandings of
democracy, but also the centrality of democracy in defining the type of
society post-apartheid South Africa seeks to become. We turn to discuss
the different conceptions below.

2.5.3 Direct democracy

Direct democracy means a system of governance that entails direct
participation on the part of the citizenry, rather than elected
representatives, in the rule and decision-making of their political
community.168 Historically, direct democracy is regarded as the ‘purest’
form of democracy that comes closest to achieving the rule of the
people (the demos).
In the context of the modern (liberal democratic) nation-state,
examples of direct democracy are not, for good reason, always self-
evident since most decisions are taken, not by the citizenry, but by their
elected representatives in legislatures. Owing to numerous factors, not
least its complex structure and internal workings, the modern nation-
state has left little room for direct democracy. Direct democracy, in
practice, would demand a vote on every piece of legislation by every
eligible member of society. Instead, prevailing democratic systems of
governance usually comprise elected legislatures whose rule is
premised on a mandate from the citizenry who periodically confer the
power to decide on their behalf to selected political organisations, such
as political parties, or individuals.
As a result of this, it seems widely accepted that the practice of direct
democracy is extremely limited with very few identifiable instances of
its institutionalisation in modern democracies. That is to say, there is
virtually no example of a modern political system that operates
primarily in accordance with the basic tenets of direct democracy as
outlined above. The same is true for South Africa, save to say that there
are elements of South Africa’s conception of democracy that can be said
to be premised on ideas of direct democracy. We turn to consider the
relatively meagre manifestations of direct democracy in the South
African constitutional scheme below.
The Constitution makes no mention of or reference to the concept of
direct democracy in its text. However, the constitutional expression of
direct democracy is said to be found in several provisions that
guarantee and recognise mechanisms for citizens to act directly in
influencing decisions. An important instance where the Constitution
makes provision for direct citizen action is by guaranteeing everyone’s
right to assemble, demonstrate, picket and present petitions peacefully
and unarmed.169 In terms of this guarantee, all citizens are free to
engage to make their views known and to seek to influence decisions
affecting them unhindered subject to the limitation that they do so
unarmed and maintain the peace. As an expression of direct
democracy, this right is pivotal as it recognises that despite the
predominance of representative governance, citizens must always enjoy
the space to advance their own agendas or paths with respect to any
issues that they believe affect them as individuals or groups.170
Other expressions of direct democracy identified in the Constitution
are to be found in the provisions that allow for the executive to seek
citizens’ views on a particular issue or set of issues directly through the
ballot by way of referenda.171 Although to date no referendum has been
called in the post-democratic era, this is a potentially important
mechanism in as far as it allows citizens to have an unmediated voice
on a particular issue. One criticism that can be levelled against these
provisions as representing an instance of direct democracy is that it is
actually at the discretion of the President or Premier to call the
referendum. There are no mechanisms by which the citizenry can
initiate or even demand that a referendum be held, nor are there
directives or guidelines as to which matters should require a
referendum be held.
To what extent does the Constitution provide
for direct democracy?
Merafong Demarcation Forum and Others v President
of the Republic of South Africa and Others172 was a
matter brought before the Constitutional Court
concerning the manner in which the legislature had
opted to deal with the location of Merafong City. Prior
to an amendment to the Constitution, Merafong City
had straddled North West and Gauteng Provinces. The
issues in this case focused on public participation and
the duty of the legislature to facilitate public
involvement. Interestingly, in this matter there had
been a consultative process that allowed the
community to air their views on relocation. The majority
were opposed to the local municipality being located
in the North West Province (74% of the residents were
prior to the relocation Gauteng residents).173 However,
in spite of this opposition by a majority of the
residents, the legislature successfully passed a
constitutional amendment despite being challenged at
the Constitutional Court. A majority of the court held
that the legislature had fulfilled its duty to facilitate
public involvement and had acted rationally in the face
of opposition.
The decision of the majority in the Constitutional
Court, while legally defensible, must be viewed
critically against the background of events on the
ground, so to speak, within the municipality. Building
up to the decision to relocate the municipality and
subsequent to it, the community had vociferously
made their disaffection with regard to relocation
known. They had done this through public meetings,
written submissions, mass public protests, marches
and ultimately widespread civic disobedience
 characterised by public violence and the destruction of
private and public property.174 Ultimately, when the
matter came before the Constitutional Court, parts of
Merafong, particularly the township of Khutsong, had
become ‘ungovernable’ and resembled a war zone as
residents refused to accept the decision to relocate the
municipality.175
This judgment raises some searching questions
about the content and limits of direct democracy in
South Africa. For example, does South Africa’s
Constitution actually entail a substantive form of direct
democracy that allows citizens to take decisions about
things that affect them directly and where those
decisions are binding? Or, do the expressions of direct
democracy we identify above more accurately
represent a right to be heard as seems to be the
essential holding of Merafong? Would there be any
purpose served by making provision for citizens to
demand that certain matters be subject to referenda?
Does the fact that we now live in a more
technologically connected age not present
opportunities to make some advances in making direct
democracy more possible to implement?

2.5.4 Representative democracy

Representative democracy as a conception of democracy entails a
system of governance in which the members of a political community
participate indirectly through elected representatives in the governance
of their community.176 In other words, at its heart, this form of
democracy presupposes that citizens elect representatives who govern
on their behalf for a limited period of time until the next election.
Political parties are often central to this form of democracy because
some electoral systems require voters to vote for political parties as
opposed to individual representatives. Also, political parties influence
the choices of voters and often lead people to elect representatives
partly because of their party-political affiliations.
Representative democracy, as mentioned above, has become the
predominant form of democracy in the nation-state system.177 Since the
emergence of the nation-state as a political entity that occupies a
particular geographical space and houses a sizeable population,
representative democracy has become widely accepted as the only
‘workable’ system of democracy.178 A major reason for this is said to be
that as a matter of practicality, governance is far too complex to expect
government to operate in a fashion that takes account of each
individual citizen’s viewpoint on decisions that affect them or even
simply to afford them such an opportunity. There are multiple hurdles
such as a lack of information, geographical spread, unequal access to
resources and citizen apathy among others. Also, the sheer enormity of
the task of gathering and collating all these views has made the
development of political parties or similar civic organisations as the
vehicles of representative democracy appear to be inevitable. The result,
therefore, has been that structurally and procedurally a constitution is
tailored towards political parties playing a pre-eminent role in the
governance of the country. It is, after all, a political party or a coalition
of political parties that forms a government.
As noted above, the presence of political parties in a system of
representative democracy has become integral to the functioning of
modern democracies. Political parties, by organising, campaigning and
electioneering, act to represent the interests of their members who will
usually share a common agenda or vision. The role of political parties is
further enhanced in South Africa by the electoral system and by strict
party discipline. Therefore, while the Constitution does not overtly
regulate the establishment, financing or activities of political parties, it
does nonetheless recognise that political parties are very much a part of
the modern democratic political system and have an important role to
play in constituting South Africa’s democracy.179 Recently, in the My
Vote Counts case, the Constitutional Court held that the constitutional
exercise of a citizen’s political rights, when understood in light of the
right to access to information, placed a duty on the legislature to enact
legislation regulating the reporting and publicising of political party
funding in South Africa.180 The finding of this case has culminated in the
coming into being of the Political Party Funding Act.181
Evidence of this recognition of political parties by the Constitution is
found in certain constitutional clauses, both substantive and
procedural. These clauses make it explicit that the type of democracy
contemplated by the drafters was a representative one in which political
parties have a major role to play. For instance, according to section 1 of
the Constitution, South Africa is founded on, among other values, the
democratic values of ‘[u]niversal adult suffrage, a national common
voters roll, regular elections and a multi-party system of democratic
government …’ 182 The primary organ of citizen representation is the NA
that is elected to represent the people and to ensure government by the
people.183 Furthermore, provisions relating to the composition of the NA
demand that its members must be elected in terms of an electoral
system that, in general, results in proportional representation.184 In
prescribing a system of proportional representation, the Constitution
goes further by demanding that representation of citizens through their
political parties must be provided for in the internal arrangements,
proceedings and procedures of the NA.185
The High Court decision of De Lille and Another v Speaker of the
National Assembly186 highlighted the importance of ensuring that the
citizenry is properly represented in the working of the NA. In this
matter, the Court was required to decide on the constitutionality of a
decision by an ad hoc committee of the NA to suspend a member of the
NA as a form of punishment for statements she had made before it.
In answering the question in the applicant’s favour, the Court
recognised the NA’s constitutional powers to regulate its own affairs.
However, the Court held that such powers did not include the power to
suspend a member for contempt as a form of punishment.187 According
to the Court, such action, if permitted, would be inconsistent with the
requirements of representative democracy. The reason for this is that it
would punish not only the member who was found to have acted
contemptuously, but also the party and the citizens who had voted for
her party. This would deprive them of their proportionate
representation in the NA.188 Although this finding was not the main
basis for the final outcome, the Court’s reasoning that connects the
member’s presence in the NA with representivity of the electorate is
important. Its importance lies in the Court’s recognising that the NA
should take into account the interests of the electorate as a whole in the
decisions it makes; it cannot simply focus on the individual concerned.
Even the rights concerning voting are clearly crafted towards a
system of representative democracy. Section 19 is an important
democratic right in the sense that it grants citizens the right to
participate in various ways in the political life of the country. Again,
while not directly mentioning that this right to participate is within a
political system of representative democracy, this idea is implicit in the
way the right is framed. Section 19(1) confers on citizens the right to
make political choices. It also seems to envisage that citizens exercise
these choices within or via a party-political system. Hence, the section
explicitly states that the right includes that of forming, joining or
campaigning for a political party. Section 19(2) further cements the
implicitness of the political system being that of representative
democracy by stipulating that the citizens have the right to free and fair
elections. Finally, section 19(3) adds to this by conferring on every adult
citizen the right to vote in elections, to stand for public office and to
hold such office if elected.
The courts have on several occasions pronounced on the right to
vote and its significance for democracy.189 The courts have also had
occasion to consider the relationship between the citizenry and their
elected representatives. In the main, the courts have considered this
relationship within the context of constitutional democracy (discussed
below). Some of the pronouncements also serve to shed much light on
how the courts view representative democracy in South Africa. O’Regan
J’s comments in Richter v The Minister for Home Affairs and Others shed
much light on the democratic nature of and the responsibilities that
characterise the relationship between voters and their elected
representatives:
The right to vote, and the exercise of it, is a crucial working part of our
democracy. Without voters who want to vote, who will take the trouble to
register, and to stand in queues, as millions patiently and unforgettably did in
 April 1994, democracy itself will be imperilled. Each vote strengthens and
invigorates our democracy. In marking their ballots, citizens remind those
elected that their position is based on the will of the people and will remain
subject to that will. The moment of voting reminds us that both electors and the
elected bear civic responsibilities arising out of our democratic Constitution
and its values.190

Section 19 of the Constitution, read in conjunction with section 1(d) of

the Constitution, underscores the idea that an integral aspect of our
conception of representative democracy is that it is a multi-party
democracy rather than a one-party state or some other formulation that
places limits on political participation at a party-political level. In
United Democratic Movement (UDM) v President of the Republic of
South Africa and Others (African Christian Democratic Party and Others
intervening; Institute for Democracy in South Africa and Others as Amici
Curiae (No 2) the Court made the point as follows:
A multiparty democracy contemplates a political order in which it is
permissible for different political groups to organise, promote their views
through public debate and participate in free and fair elections. These activities
may be subjected to reasonable regulation compatible with an open and
democratic society. Laws which go beyond that, and which undermine
multiparty democracy, will be invalid.191

The controversial constitutional amendment

that allowed floor crossing
The dictum in the UDM case quoted above was made
with respect to a controversial constitutional
amendment that allowed for floor crossing in spite of
the fact that South Africa’s electoral system is based
on proportional representation and a list system. The
amendment, in effect, permitted members of the NA
representing one political party to change political
parties between elections and still maintain their seat
in the NA. The effect of this was that member 1, whose
membership in the NA came about as a result of being
on party X’s list, could defect during a specified period
and join party Y while retaining the seat he or she
occupied owing to initially being a member on the
electoral list of party X. In a highly criticised decision,
the Constitutional Court held that the amendment was
constitutionally sound. This was despite the fact that
the provision clearly robbed the voters of party X of
their representation by allowing an individual for whom
they may not necessarily have voted to cross the floor
with their party’s seat. In justifying its decision to
uphold the amendment as constitutional, the Court
had this to say: 192
This case is not about the merits or demerits of the provisions of
the disputed legislation. That is a political question and is of no
concern to this Court. What has to be decided is not whether the
disputed provisions are appropriate or inappropriate, but whether
they are constitutional or unconstitutional. It ought not to have
been necessary to say this for that is true of all cases that come
before this Court. We do so only because of some of the
submissions made to us in argument, and the tenor of the public
debate concerning the case which has taken place both before
and since the hearing of the matter.193

The Court went on to add the following passage in the

judgment:
None of the rights specified in section 19, seen on its own or
collectively with others, is infringed by a repeal or amendment of
the anti-defection provisions. The rights entrenched under section
19 are directed to elections, to voting and to participation in
political activities. Between elections, however, voters have no
control over the conduct of their representatives. They cannot
dictate to them how they must vote in Parliament, nor do they
have any legal right to insist that they conduct themselves or
refrain from conducting themselves in a particular manner.194

In light of the above, here are some questions to

consider:
• What are we to make of these statements made by
the Court in this case?
 • Can law and politics be separated in the manner
suggested by the Court here?
• Is the practice of democracy simply to be left to
the determination of Parliament even where the
effect of the constitutional amendment in question
seems to violate the right to exercise a choice
implicit in voting?
• How do we reconcile floor crossing with
representative democracy and at the same time
take voting rights seriously?

In the final analysis, the controversy fuelled by floor

crossing was such that the law permitting it was
reversed early in 2009.

In conclusion, it is important to acknowledge that against the

background of South Africa’s struggle against apartheid where the right
to vote was acquired or denied on the arbitrary basis of race, this right
came to assume an overriding significance. The establishment of a
system of representative democracy has succeeded in affirming and
recognising the equal citizenship and political agency of all, especially
for those who previously suffered the indignity of being denied the
franchise. However, it is equally important to realise that there are
limitations of the system that may have long-term consequences. We
briefly outline a few of these below:
• The failure to regulate political parties in the Constitution may give
rise to an elite-driven democracy. The fact that there is no
requirement that the parties practise some form of internal
democracy ultimately has the effect of conferring a huge amount of
power on the party leadership, who may dominate party affairs and
impose their preferred representatives.
• The lack of opportunity for the electorate to influence directly their
representatives outside the five-year election intervals is also less
than ideal. In similar fashion to the point raised above, it leaves the
 electorate in the position of onlookers as elected representatives
take decisions in the name of the electorate without an opportunity
to oppose independently unpopular decisions.
• Another major limitation of the system is that it makes it difficult for
people who are not actively involved in political parties to make an
impact on legislative and policy issues affecting them. In other
words, for those without party affiliations and therefore no
representative, the opportunities to contribute their views effectively
are severely limited.
• Finally, and possibly most controversially, the fact that the South
African political landscape is dominated by one party, namely the
African National Congress (ANC), presents its own challenges. This
situation is referred to as a dominant party democracy.195 It is of
particular concern as it affects democratic accountability and limits
democratic participation by making the governing party the primary
site for all debate and decision-making. The fact of one-party
dominance does not in and of itself present an immediate crisis of
democracy. However, in the long run, it has been shown to lead to
an entrenchment of a system of patronage, erosion of the separation
between party and state, and, ultimately, the domination of all
aspects of national life by the party.196

2.5.5 Participatory democracy

In the section above, the picture we sought to convey was that of
representative democracy being at the heart of the South Africa’s
democracy both in terms of the structures that the Constitution
establishes and in terms of how democracy works in practice. With this
in mind, it is also equally important that we point out that
representative democracy is subject to its own limitations. In particular,
representative democracy in the way it operates carries with it the
potential to be disempowering as far as the citizenry is concerned.
Elections take place periodically, usually every five years in South
Africa. This inevitably entails citizens’ conferring their mandate on a
political party to represent their interests over a period of time. It is
quite conceivable that in a system of representative democracy,
decision-making on matters of national concern can be made without
taking citizens’ views into account. There is, therefore, a need to
somehow counteract this potentially disempowering aspect of
representative democracy. The Constitution does this by including in its
conception of democracy the element of participatory democracy.
Participatory democracy is primarily concerned with ensuring that
citizens are afforded an opportunity to participate or otherwise be
involved in decision-making on matters that affect their lives. Put
differently, it adds a participatory element to representative democracy,
augments and enhances it, but does not replace it. As a conception of
democracy, it is in a sense a derivative of representative democracy as it
seeks to ensure that while citizens may confer a mandate on elected
representatives, they are not totally excluded from the decision-making
process in matters that concern them. In essence, participatory
democracy seeks to ensure that citizens are afforded real opportunities
to participate meaningfully in decision-making that affects them.197 The
Constitution recognises participatory democracy as a vital element of
South Africa’s democracy. In Doctors for Life International v Speaker of
the National Assembly and Others, Ngcobo J, writing for the majority,
captured this idea as well as elucidating on what participatory
democracy entails when he wrote as follows:
In the overall scheme of our Constitution, the representative and participatory
elements of our democracy should not be seen as being in tension with each
other. They must be seen as mutually supportive. General elections, the
foundation of representative democracy, would be meaningless without
massive participation by the voters. The participation by the public on a
continuous basis provides vitality to the functioning of representative
democracy. It encourages citizens of the country to be actively involved in
public affairs, identify themselves with the institutions of government and
become familiar with the laws as they are made. It enhances the civic dignity of
those who participate by enabling their voices to be heard and taken account
of. It promotes a spirit of democratic and pluralistic accommodation
calculated to produce laws that are likely to be widely accepted and effective in
practice. It strengthens the legitimacy of legislation in the eyes of the people.
Finally, because of its open and public character it acts as a counterweight to
secret lobbying and influence peddling. Participatory democracy is of special
importance to those who are relatively disempowered in a country like ours
where great disparities of wealth and influence exist.198
In recognising the importance of these participatory elements of
democracy, the Constitution contains various provisions that seek to
underscore the fact that this form of democracy is an indispensable
feature of our system of governance. At the national and provincial
levels of government, the Constitution places the legislatures under a
duty to facilitate public involvement in their legislative and other
processes, including their committee work.199 The exact nature of this
duty or whether, in fact, it constitutes a justiciable constitutional duty
was determined in Doctors for Life. In this case, the issue before the
Court related to a complaint from the applicants that in passing certain
pieces of legislation, namely four Bills affecting health professionals, the
NCOP had failed to involve the public as demanded by the
Constitution. The applicants contended that the NCOP and the affected
provincial legislatures had failed to provide for public involvement by
failing to call for written submissions and hold public hearings. At issue
in the case was the question as to the nature and scope of the duty to
facilitate public involvement and the extent to which such duty was
justiciable.200 In making its determination that such a duty indeed exists,
the majority reasoned that this duty correlates with the right to
participation as recognised in international human rights
instruments.201 As such, in the context of South Africa’s constitutional
democracy, it was acknowledged that ours is a democratic government
that is partly representative and partly participatory.202

2.5.6 Constitutional democracy

What should be clear at this point is that South Africa’s conception of
democracy is multifaceted. The Constitution, as previously pointed out,
recognises and embraces different conceptions of democracy while
simultaneously holding democracy up as a central organising principle.
For example, the importance attached to democracy in South Africa’s
constitutional project is discernible from its prominence in several
largely unrelated provisions such as the following: the Preamble; the Bill
of Rights; 203 the limitation clause; 204 the interpretation clause; 205 the
principles of co-operative governance; 206 and the provisions regulating
legislative bodies and their procedures. Democracy is in many ways the
central pillar around which our constitutional state is arranged, thus
making South Africa what has commonly come to be known as a
constitutional democracy. But, what does it mean to be a constitutional
democracy?
It has been pointed out that the term ‘constitutional democracy’ has
no technical meaning nor does it have an underlying theory attached to
it; it is said fundamentally to be a descriptive term.207 As a descriptive
term, constitutional democracy is used to describe a political system in
which a particular political community’s decisions are made in terms of
a constitution. This constitution prescribes the terms and conditions
under which such democratic vision is brought into being.208 In our
context, the term should be understood as something of a composite
understanding of democracy that seeks to emphasise the overall
centrality of the notion of democracy in our constitutional system rather
than its component parts. In other words, constitutional democracy
seen as a whole is more than a sum of its parts as it comprises direct,
representative, participatory, deliberative or majoritarian forms of
democracy. The Constitution makes no claim of aspiring towards a
particular form of democracy as representing a societal ideal. Instead, it
posits a view of the type of democratic society that it seeks to build. The
Constitution does this by trumpeting the important elements of this
society, such as a supreme and justiciable Constitution, a culture of
human rights and a commitment to a broad range of democratic ideals,
non-racialism, multiculturalism and multilingualism. In practice, this
means a democratic society that is not simply majoritarian in its
orientation and practice but also one that accepts that judicial review is
legitimate where it is employed to give effect to the Constitution. In
terms of this conception, constitutional democracy must be viewed as a
purposive concept.

SUMMARY

This chapter deals with the basic concepts of constitutional law which
inform the more detailed discussion of the various aspects of the South
African Constitution in subsequent chapters.
 Constitutionalism is a multifaceted term and is concerned with the
distribution and allocation of powers in an organised way within a
given political community in which a government is established. It
provides for the establishment of the institutions of governance, such as
the legislature, the executive and the courts, as well as the allocation of
powers, duties and functions to the various institutions of government
which legitimise the exercise of power – within the limits set by the
Constitution – of each of these institutions. Constitutionalism also plays
an important role in determining the nature and basis of relations as
they exist between institutions of government and those they govern.
The principle of the separation of powers deals with the division of
governmental power across the three branches, namely the legislative
branch (Parliament), the executive branch (president/prime minister
and cabinet) and the judicial branch (the 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. There are,
however, several models of separation of powers and it is important to
study these models and to understand the specific model adopted by
the South African Constitution as well as the practical and legal
consequences that flow from the adoption of this model.
The counter-majoritarian dilemma arises in a constitutional
democracy (like that established in South Africa) in which the
constitution rather than Parliament is supreme and in which the
judiciary is independent and empowered to review and set aside the
actions of the other two branches of government. This is because the
system affords the power of judicial review to courts. It thus permits an
unelected and seemingly unaccountable judiciary to declare
unconstitutional and invalid laws made and actions taken by
democratically elected and accountable members of the legislature and
executive. This can appear to be anti-democratic. It is important to
engage with the arguments justifying the legitimacy of this system and
attempting to resolve the counter-majoritarian difficulty.
The rule of law is a founding value of the South African 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 also 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. The rule of law can be
conceptualised in formalistic terms or it can entail a more substantive
notion.
The core idea at the heart of democracy is that decisions affecting
the members of a political community should be taken by the members
themselves or at least by elected representatives whose power to make
decisions ultimately derives from the members. Different, and
sometimes overlapping, forms of democracy can exist within a state:
direct democracy; representative democracy; participatory democracy
and constitutional democracy. It is important to be able to distinguish
the various forms of democracy and to understand how these forms of
democracy relate to one another.

1 See Hogg, PW (2007) Constitutional Law of Canada 5th ed 2.

2 See generally Currie, I and De Waal, J (2001) The New Constitutional and Administrative
Law, Vol 1 Constitutional Law 10.
3 The British constitutional system, to be discussed in detail below, is one notable exception
in that the Constitution is not contained in one written document.
4 95 (3) SA 391 (CC) para 262.
5 See Currie and De Waal (2001) 10, although the authors characterise this approach to
constitutionalism as a ‘descriptive doctrine’. This is a characterisation that was also adopted
in the first edition of this book that has now been abandoned. This is because to speak of a
doctrine suggests that there is a common set of ideas and beliefs that underpin the
understanding. This sort of formulation is therefore incorrect as far as approaching
constitutionalism descriptively, as there need not be any underlying commonality of
beliefs or ideology with respect to the constitutions being described apart from the fact that
they are all national constitutions.
6 1952 (2) SA 428 (A).
7 46 of 1951.
8 See also Akiba, O ‘Constitutional government and the future of constitutionalism in Africa’
in Akiba, O (ed) (2004) Constitutionalism and Society in Africa 5.
9 Akiba (2004) 5–6.
10 The Union of South Africa Act, 1909. This Act was passed through both Houses of the
Imperial Parliament in the United Kingdom exactly as it was forwarded after the South
African Convention was held. King Edward VII assented to the Act on 20 September 1909. A
Royal Proclamation of 2 December 1909 declared the date of the establishment of the
Union to be 31 May 1910.
11 See generally Bogdanor, V (2009) The New British Constitution and King, A (2007) The
British Constitution.
12 The origins of modern British constitutional arrangements and conventions are often
traced back to the Magna Carta (the Great Charter), which is a Charter of Rights that was
agreed to by King John of England on 15 June 1215. It declared that everyone, including the
King, is subject to the law.
13 There have at various times been calls for the adoption of a written constitution. See, for
example, Institute for Public Policy Research (1991) A Written Constitution for the United
Kingdom.
14 Dicey, AV (1885) Introduction to the Study of the Law of the Constitution 10th ed (1959).
15 See Barnett, H (2019) Constitutional and Administrative Law 13th ed ch 6.
16 See Mann, FA (1990) Further Studies in International Law 104.
17 Munro, CR (1999) Studies in Constitutional Law 2nd ed 135.
18 Motala, Z (1994) Constitutional Options for a Democratic South Africa: A Comparative
Perspective 48.
19 Currie and De Waal (2001) 14.
20 Republic of South Africa Constitution Act 32 of 1961.
21 Ss 7–15. See also Dugard, J (1978) Human Rights and the South African Legal Order 35.
22 Ss 108 and 118 entrenched English and Afrikaans as the two official languages of South
Africa with equal status and prohibited amendment of the entrenched sections except with
the support of two-thirds of the members of the House of Assembly and the Senate.
However, a later amendment allowed homelands to recognise one or more of the other
indigenous languages for that particular self-governing territory.
23 The post-1994 Constitutions did adopt a form of parliamentary government usually
associated with the Westminster constitutional model as – unlike in the US system – most
members of the executive remain members of the legislature.
24 These provisions are augmented by s 165(5) of the Constitution which states that ‘[a]n order
or decision issued by a court binds all persons to whom and organs of state to which it
applies’ while s 172(1) states that ‘[w]hen deciding a constitutional matter within its power,
a court … must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency’.
25 See, for example, Pharmaceutical Manufacturers Association of South Africa and Another:
In re Ex parte President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC
1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) (25 February 2000) para 44. See also
Roederer, C ‘Founding provisions’ in Woolman, S and Bishop, M (eds) (2013)
Constitutional Law of South Africa 2nd ed rev service 5 13.18. Roederer argues that the role
of the proclamation of supremacy in s 2 is to specify further the value in s 1(c).
26 Roederer (2013) 13.18.
27 Ch 14 of the Constitution.
28 S 74(1) of the Constitution.
29 S 74(3) of the Constitution.
30 See S v Mamabolo (eTV and Others Intervening (CCT 44/00); [2001] ZACC 17; 2001 (3) SA
409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) para 38.
31 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) (25 February
2000) para 44.
32 Michelman, F ‘The rule of law, legality and the supremacy of the Constitution’ in Woolman
and Bishop (2013) 11.37–11.38.
33 Michelman (2013) 11.38.
34 See s 74(1)(a) and (b) of the Constitution.
35 Art 79(3) of the German Basic Law states: ‘Amendments to this Basic Law affecting the
division of the Federation into Länder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 shall be inadmissible.’
36 See Roederer (2013) 13.3–13.8 where he makes the point that s 1 does not explicitly contain
all the foundational values, for example separation of powers, ubuntu, transformation,
social justice and constitutionalism. The courts have recognised these values and several
others and we will discuss them in the chapters to follow.
37 See Woolman, S ‘Application’ in Woolman and Bishop (2013) 31.93–31.94.
38 See Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC) para 56 where the Constitutional Court
confirmed that the Constitution contained an ‘objective value system’, but declined to
discuss what this value system might be. See also Roederer (2013) 13.9–13.15.
39 See Carmichele and Geldenhuys v Minister of Safety and Security and Another 2002 (4) SA
719 (C) 728G–I where the Court affirmed that the ‘objective normative value system’ seeks
to establish a society based on human dignity, equality and freedom ‘and institutions of
government which are open, transparent and accountable to the people whom they serve.
The content of this normative system does not only depend on an abstract philosophical
inquiry but rather upon an understanding that the constitution mandates the development
of a society which breaks clearly and decisively from the past and where institutions which
operated prior to our constitutional dispensation had to be instilled with a new operational
vision based on the foundational values of our constitutional system.’
40 However, see Woolman (2013) 31.90 as well as Michelman (2013) 11.40.
41 S 40(1) of the Constitution describes the three levels of government as being ‘distinctive,
interdependent and interrelated’.
42 See s 41(1)(h)(i) to (vi) of the Constitution. See also Currie and De Waal (2001) 119–20.
43 Ramathlodi, N (2011) THE BIG READ: ANC’s fatal concessions, 1 September 2011, accessed
on 1 December 2019 at http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-
big-read-anc-s-fatal-concessions.
44 Seedorf, S and Sibanda, S ‘Separation of powers’ in Woolman and Bishop (2013) 12.1.
45 Constitutional Principle VI of Schedule 4 of the interim Constitution provided: ‘There shall
be a separation of powers between the legislature, executive and judiciary, with
appropriate checks and balances to ensure accountability, responsiveness and openness.’
46 The two classical texts on this subject are Vile, MJC (1967) Constitutionalism and the
Separation of Powers and Gwyn, WB (1965) The meaning of the separation of powers: An
analysis of the doctrine from its origin to the adoption of the United States Constitution.
47 See Rautenbach, IM and Venter, R (2018) Rautenbach-Malherbe Constitutional Law 7th ed.
See also Pieterse, M (2004) Coming to terms with judicial enforcement of socio-economic
rights SAJHR 20:383–417 at 386.
48 See Calabresi, SG, Berghausen, ME and Albertson, S (2012) The rise and fall of the
separation of powers Northwestern University Law Review 106(2):527–50 at 529–36.
49 See ch 1 of the Constitution.
50 See Bennett, T and Murray, C ‘Traditional leaders’ in Woolman and Bishop (2013) 26.4 and
26.53. See also Seedorf and Sibanda (2013) 12.3 for a discussion on the roots of this
doctrine.
51 Locke, J (1690) Second Treatise on Government (1986) 143–4, 150 and 159. See also Van der
Vyver, JD (1993) The separation of powers SAPL 8(2):177–91 who points out that Locke’s
initial conception of separation of powers classified the threefold governmental powers as
legislative power, executive power (including adjudication) and federative power (foreign
relations).
52 Seedorf and Sibanda (2013) 12.5.
53 De Montesquieu, C (1748) De l’Esprit des Loix (Nugent, T (tr), Neumann, F (ed) (1949) The
Spirit of the Laws).
54 For an overview on the history of separation of powers preceding this era, see Seedorf and
Sibanda (2013) 12.3–12.10.
55 Seedorf and Sibanda (2013) 12.1.
56 Seedorf and Sibanda (2013) 12.5.
57 These values are enshrined in s 1(d) of the Constitution.
58 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 108.
59 See S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) (5
April 2001) para 17.
60 (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May 1998) (CC)
para 60.
61 South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000]
ZACC 22; 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (28 November 2000) paras 18–22.
62 The Constitutional Court made this point in First Certification paras 106–13.
63 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September
1996).
64 First Certification paras 108–12.
65 (CCT89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017).
66 Para 85.
67 See ch 4 of the Constitution.
68 See ss 43(a) and 42(1) of the Constitution.
69 S 44(1)(a) read with s 44(2)(b) of the Constitution.
70 S 44(4) of the Constitution provides that when Parliament exercises its legislative authority,
it is only bound by the Constitution and must act in accordance with and within the limits
of the Constitution.
71 See ss 46 and 47 of the Constitution for provisions relating to the composition, election and
membership of the NA.
72 See ss 60 and 61 of the Constitution for provisions relating to the composition and
allocation of delegates to the NCOP.
73 See s 57 of the Constitution in respect of the NA and s 70 in respect of the NCOP.
74 See s 58 of the Constitution in respect of the NA and s 71 in respect of the NCOP.
75 S 73(2) of the Constitution permits members of the Cabinet or Deputy Ministers to
introduce Bills in the National Assembly. S 79(1) of the Constitution enjoins the President
to assent to and sign a Bill which has been passed by Parliament.
76 See s 85(1)(b) and (d) of the Constitution.
77 See Executive Council of the Western Cape Legislature and Others v President of the Republic
of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA
877 (CC) (22 September 1995) para 51. See also AAA Investments (Proprietary) Limited v
Micro Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR
1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006) paras 49, 93 and 122–3; Constitutionality of
the Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC 10; 2002 (1) SA 447 (CC);
2001 (11) BCLR 1126 (5 October 2001) para 19; Executive Council of the Province of the
Western Cape v Minister for Provincial Affairs and Constitutional Development and Another,
Executive Council of KwaZulu-Natal v President of the Republic of South Africa and Others
(CCT15/99, CCT18/99) [1999] ZACC 13; 2000 (1) SA 661 (CC); 1999 (12) BCLR 1360 (15
October 1999) paras 123–4; 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 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011) para 53; and South African Reserve Bank and Another v
Shuttleworth and Another (CCT194/14, CCT199/14) [2015] ZACC 17; 2015 (5) SA 146 (CC);
2015 (8) BCLR 959 (CC) (18 June 2015) paras 63–71.
78 See s 91(3) of the Constitution.
79 See Pieterse (2004) 388.
80 See De Vos, P (2012, 14 August) Towards a parliament for the people Constitutionally
Speaking, available at http://constitutionallyspeaking.co.za/towards-a-parliament-for-the-
people/.
81 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (CC) (22 September
1995). See also Justice Alliance.
82 Act 209 of 1993.
83 Executive Council of the Western Cape Legislature para 51.
84 See also Currie and De Waal (2001) 98–102.
85 S 83(a) of the Constitution.
86 Ss 84(1) and 85(1) of the Constitution. For a discussion as to the import of the distinction
between these two capacities in which the President exercises power, see ch 5.
87 S 85(2)(a)–(e) of the Constitution.
88 S 83(b) of the Constitution. See Economic Freedom Fighters v Speaker of the National
Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others
(CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC)
(31 March 2016) para 20.
89 S 91(1) of the Constitution.
90 S 91(2) of the Constitution.
91 S 91(3) of the Constitution.
92 S 92(2) of the Constitution.
93 The dominant role of the NA becomes apparent if we compare s 55 with the comparable s
68 dealing with the powers of the NCOP. The latter section makes no mention of an
accountability or oversight role for the NCOP.
94 S 92(3)(b) of the Constitution.
95 S 102 of the Constitution establishes two different motions, one that provides for the
removal of the Cabinet excluding the President and another motion that provides for the
 removal of the entire Cabinet, including the President. See United Democratic Movement
and Others v Speaker of the National Assembly and Others (CCT89/17) [2017] ZACC 21;
2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017).
96 S 89(1). See also Economic Freedom Fighters v Speaker of the National Assembly and Others
v Speaker of the National Assembly and Others 2018 (3) BCLR 259 (CC); 2018 (2) SA 571
(CC).
97 Because of the proliferation of quasi-judicial administrative bodies within the executive,
this absolute separation of functions is becoming less clear.
98 See also ch 6 of the Constitution.
99 S 165(1) of the Constitution.
100 S 166(a)–(e) of the Constitution.
101 S 167(3)(a) of the Constitution.
102 See s 34 of the Constitution which confers on everyone the right to access the courts.
103 Owing to the fact that s 170 precludes the magistrates’ courts or other courts of a status
lower than the High Court from reviewing the constitutionality of legislation or conduct of
the President, this discussion necessarily excludes magistrates’ courts.
104 S 172 of the Constitution details the various types of orders that the courts can make in
relation to constitutional matters. It is important to note that in so far as Acts of Parliament,
Acts of the provincial legislatures and conduct of the President are concerned, only the
Constitutional Court may issue an order of final invalidity, after which point such an order
has full force and effect (s 167(5)).
105 S 174 of the Constitution. See 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 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) and Judicial Service Commission
and Another v Cape Bar Council and Another 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170
(SCA).
106 See s 174 of the Constitution wherein the procedure for the appointment of judicial officers
is set out. See also s 177 which deals with the provisions in respect of the removal of judges.
107 S 165(2) of the Constitution.
108 S 165(3) of the Constitution.
109 S 165(4) of the Constitution.
110 (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) para
25.
111 See s 176(1) and (2) which stipulates how long judges remain in office. In terms of this
section, Constitutional Court judges serve for a maximum term of 12 years or until such
time as they attain the age of 70, whichever occurs first. Other judges remain in office until
they are discharged from active service which is normally at the age of 75.
112 See s 176(3) of the Constitution.
113 See s 177 of the Constitution which deals in detail with the procedure in respect of the
removal of judges.
114 The process that must be followed by the JSC when a complaint is laid against a judge is set
out in the Judicial Service Commission Act 9 of 1994.
115 S 177(2) of the Constitution.
116 See Makwanyane paras 87–9.
117 See generally Minister of Health and Others v Treatment Action Campaign and Others (No
2) (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (5 July 2002).
118 See Bickel, AM (1962) The Least Dangerous Branch: The Supreme Court at the Bar of Politics
16.
119 See Friedman, B (2002) The birth of an academic obsession: The history of the counter-
majoritarian difficulty, Part five Yale Law Journal 112(2):153–260.
120 See Lenta, P (2004) Democracy, rights disagreements and judicial review SAJHR 20(1):1–31
for a detailed account and critique of some of the various arguments in support of and
against judicial review contributing to the ideals of democracy.
121 One of the views discussed by Lenta (2004) 4 is that of Waldron, J (1999) Law and
Disagreement who argues that judicial review is undemocratic. According to Lenta,
Waldron premises his argument on the fact that judicial review negates the democratic
right of citizens to participate equally in decisions concerning them and their interests. The
arguments put forward by Waldron seek to dispel the notion that there is something about
the courts that makes them especially equipped to make better decisions on constitutional
rights or questions of political morality. Instead, according to Waldron, the right to
participate being a foundational element of democracy is unjustifiably diminished when
judicial review denies citizens an opportunity to participate in decisions that are made the
preserve of the courts.
122 See Lenta (2004) 5 for a discussion of Ely’s view that judicial review is legitimate or
justifiable on the basis that there are times when the courts may be called on to guarantee
or safeguard the democratic process (Ely, JH (1980) Democracy and Distrust: A Theory of
Judicial Review).
123 See Lenta (2004) 6 for a discussion on Dworkin’s conception of a constitutional democracy
where Dworkin argues that judicial review is an integral part of a democracy in that it sees
democracy as being more than simple majoritarianism (Dworkin, R (1986) Law’s Empire).
See also generally Davis et al (1994) 6–7.
124 Lenta (2004) 5–6.
125 See Makwanyane para 88 for the views of Chaskalson P on the place of public opinion in
constitutional adjudication.
126 Makwanyane paras 87–9.
127 See Lenta (2004) 1 for a detailed account and critique of some of the various arguments in
support of and against judicial review contributing to the ideals of democracy. See also Van
der Walt, J and Botha, H (2000) Democracy and rights in South Africa: Beyond a
constitutional culture of justification Constellations 7(3):341–62 at 350.
128 See Lenta (2004) 10–11 where he discusses Dworkin’s substantive conception of
democracy that demands that a balance be struck between collective decisions and
individual rights by placing limitations on the majoritarian legislatures by means of
mechanisms such as judicial review (Dworkin (1986)).
129 See Lenta (2004) 17–18.
130 See Pieterse (2004) 391–2.
131 Van der Walt and Botha (2000) 353–5.
132 Lenta (2004) 31 makes this point as follows: ‘They are mixed because, even if the people are
deemed to have agreed to the inclusion of rights in their constitution, their consent cannot
be taken to extend to controversial judicial interpretations.’
133 See, for example, Magen, A (2009) The rule of law and its promotion abroad: Three
problems of scope Stanford Journal of International Law 45(1):51–116 and Rosenfeld, M
(2001) The rule of law and the legitimacy of constitutional democracy Southern California
Law Review 74(5):1307–52.
134 Dicey (1959) xcvi–cli (also referred to in Currie and De Waal (2001) 75–7).
135 Dicey (1959) 45–54. See also Dugard (1978) 37.
136 See Klug, H (2010) The South African Constitution: A Contextual Analysis 225–9 where the
author describes how the courts (especially the magistrates’ courts) were ‘part of the state’s
disciplinary machinery’.
137 Dugard (1978) 43.
138 Dyzenhaus, D (2007) The pasts and future of the rule of law in South Africa South African
Law Journal 124(4):734–61 at 738.
139 See Dyzenhaus (2007) 738–9.
140 See Klug (2010) 32 where he describes how a substantive conception of the rule of law
developed as part of human rights law. See also Dugard (1978) 39ff.
141 See International Commission of Jurists (1961) 3(1) at 9, available at
https://www.icj.org/wp-content/uploads/2013/08/ICJ-Journal-III-1-1961-eng.pdf.
142 For example see Economic Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly and Others 2016 (5) BCLR 618 (CC);
2016 (3) SA 580 (CC). This is the now famous Nkandla case concerning an order of remedial
action made by the Public Protector against the then sitting president Jacob Zuma to repay
money’s to the state for illegal payments made towards the improvements made to his
private residence. In capturing the essence of the challenge, Mogoeng CJ stated that what
these applications were really about were, among other things, that ‘based on the
supremacy of our Constitution, the rule of law and considerations of accountability, the
President should be ordered to comply with the remedial action taken by the Public
Protector by paying a reasonable percentage of the reasonable costs expended on non-
security features at his private residence.’ Later on in the same judgment Mogoeng CJ
expressed with crispness the foundational nature of the rule of law in our constitutional
order, he stated that: The rule of law requires that no power be exercised unless it is
sanctioned by law, and no decision or step sanctioned by law may be ignored based purely
on a contrary view. It is not open to any of us to pick and choose which of the otherwise
effectual consequences of the exercise of constitutional or statutory power will be
disregarded and which given heed to. Our foundational value of the rule of law demands of
us, as a law-abiding people, to obey decisions made by those clothed with the legal
authority to make them or else approach courts of law to set them aside, so we may validly
escape their binding force.
143 (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (14 October 1998).
144 Fedsure para 56.
145 See also President of the Republic of South Africa and Others v South African Rugby Football
Union and Others (SARFU III) (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10)
BCLR 1059 (10 September 1999) paras 38 and 148; Pharmaceutical Manufacturers paras
20–21; Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04)
[2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 49;
Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010]
ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC) (23
February 2010) para 49; Democratic Alliance v President of South Africa and Others (CCT
 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)
para 12.
146 (CCT27/04) [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005)
para 49.
147 For example Masetlha v President of the RSA 2008 (1) SA 566 (CC) paras 78–81) and
Democratic Alliance v President of the Republic of South Africa and others 2013 (1) SA 248
(CC) paras 29–32.
148 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October
2012) para 32.
149 [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) para 51.
150 Democratic Alliance v President of South Africa and Others paras 34–6.
151 Pharmaceutical Manufacturers para 66.
152 Pharmaceutical Manufacturers para 89.
153 Chief Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC 16; 2000
(1) SA 409 (CC); 1999 (12) BCLR 1420 (16 November 1999).
154 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420 (16 November
1999) para 1.
155 On self-help, see also Ngqukumba v Minister of Safety and Security and Others (CCT 87/13)
[2014] ZACC 14; 2014 (7) BCLR 788 (CC); 2014 (5) SA 112 (CC); 2014 (2) SACR 325 (CC).
156 Lesapo para 11.
157 Lesapo para 17.
158 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 47.
159 Janse van Rensburg and Another v Minister of Trade and Industry and Another (CCT13/99)
[2000] ZACC 18; 2001 (1) SA 29; 2000 (11) BCLR 1235 (CC) (29 September 2000) para 25.
160 S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002)
para 18.
161 See Dyzenhaus (2007) 734–61.
162 In a press statement issued in 1992 by former President Nelson Mandela, he described
‘democracy for all South Africans’ as the final goal of negotiations. Available at
https://www.sahistory.org.za/archive/press-statement-nelson-r-mandela-president-anc-
ancnp-summit-meeting-world-trade-centre.
163 Motala (1994) 19.
164 See, for example, Kurki, M (2012) Democracy and conceptual contestability: Reconsidering
conceptions of democracy in democracy promotion International Studies Review
12(3):362–86; and Benhabib, S (1996) Democracy and Difference: Contesting the Boundaries
of the Political.
165 While not a definition of democracy, the principles and values in section 1(d) do, to a
significant degree, tend to tally with certain elements or practices which have been
identified and are said to be indicative of a democratic society. For example, (1)
government based on consent of the governed through free and fair elections; (2) the active
participation of the people, as citizens, in politics and civic life; (3) protection of the human
rights of all citizens; (4) respect for the rule of law; (5) majority rule and respect for minority
 rights; and (6) constitutional limits of government. In general, see Beetham, D (2004)
Towards a universal framework for democracy assessment Democratization 11(2):1–17.
166 Roux, T ‘Democracy’ in Woolman and Bishop (2013) 10.1.
167 See Doctors for Life International v Speaker of the National Assembly and Others
(CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) paras 96–117.
168 See generally Scarrow, SE (2001) Direct democracy and institutional change: A
comparative investigation Comparative Political Studies 34(6):651–65 at 654–65.
169 S 17 of the Constitution.
170 Woolman captures the importance of s 17 as follows: ‘By creating political space for crowd
action, s 17 vouchsafes a commitment to a form of democracy in which the “will of the
people” is not always mediated … by political parties and the elites that run them.’
Woolman, S ‘Assembly, demonstration, picket and petition’ in Currie, I and De Waal, J
(2013) Bill of Rights Handbook 6th ed 397–8. See also SATAWU v Garvas 2013 (1) SA 83 (CC)
and Woolman S, ‘My tea party, your mob, our social contract: Freedom of assembly and the
constitutional right to rebellion in Garvis v SATAWU (Minister for Safety & Security, third
party) 2010 (6) SA 280 (WCC)’ (2011) 27 SAJHR 346.
171 Ss 84(2)(g) and 127(2)(f) of the Constitution confer this power on the President and
provincial Premiers respectively.
172 (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June 2008).
173 Merafong para 29.
174 See the dissenting judgment of Moseneke J in Merafong paras 133–40. For a more detailed
description of how the civic protest unfolded, became violent and its impact on the
residents of Merafong, particularly in Khutsong township, see Kirshner, J and Phokela, C
(2010) Khutsong and xenophobic violence: Exploring the case of the dog that didn’t bark
particularly 8–14. Available at
https://www.researchgate.net/publication/285729554_Khutsong_and_xenophobic_violen
ce_Exploring_the_case_of_the_dog_that_didn’t_bark.
175 See Kirshner and Phokela (2010).
176 See generally Kateb, G (1981) The moral distinctiveness of representative democracy Ethics
91(3):357–74.
177 Sachs J in a concurring judgment in Doctors for Life stated that ‘representative democracy
undoubtedly lies at the heart of our system of government …’ para 229.
178 Roux (2013) 10.13.
179 See Currie and De Waal (2001) 86.
180 My Vote Counts NPC v Minister of Justice and Correctional Services and Another
(CCT249/17) [2018] ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC).
181 Act 6 of 2018.
182 S 1(d).
183 S 42(3).
184 S 46(1)(d); 105(1)(d); 157(2)(a).
185 See s 57, in particular subsecs (1)(b) and (2)(b).
186 1998 (3) SA 430 (C).
187 De Lille para 27.
188 De Lille para 27.
189 For example New National Party v Government of the Republic of South Africa and Others
(CCT9/99) [1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (13 April 1999); August
and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1
(CC); 1999 (4) BCLR 363 (1 April 1999); Minister of Home Affairs v National Institute for
Crime Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04)
[2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004).
190 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12
March 2009) para 53
191 (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (4 October 2002)
para 26.
192 For a critical appraisal of the disconcerting implications of this passage, see Roux, T (2009)
Principle and pragmatism on the Constitutional Court of South Africa International Journal
of Constitutional Law 7(1):106–38 at 128–30.
193 UDM para 11.
194 UDM para 49.
195 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and
the African National Congress in a dominant party democracy Constitutional Court Review
2:1–86 at 23; Southall, R (1994) The South African elections of 1994: The remaking of a
dominant-party state The Journal of Modern African Studies 32(4):629–55; Giliomee, HB
(1998) South Africa’s emerging dominant-party regime Journal of Democracy 9(4):128–42;
Friedman, S ‘No easy stroll to dominance: Party dominance, opposition and civil society in
South Africa’ in Giliomee, HB and Simkins, CEW (eds) (1999) The Awkward Embrace: One
Party Domination and Democracy 97; Alence, R (2004) South Africa after apartheid: The
first decade Journal of Democracy 15(3):78–92 at 78.
196 See Choudhry (2009) 24–5.
197 Currie and De Waal (2001) 87.
198 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 115.
199 See ss 59, 72 and 118 of the Constitution.
200 Doctors for Life para 75.
201 Doctors for Life paras 106–8.
202 Doctors for Life para 116. See also Land Access Movement of South Africa and Others v
Chairperson of the National Council of Provinces and Others 2016 (5) SA 635 (CC); 2016 (10)
BCLR 1277 (CC) especially at 56–62.
203 See s 7(1) of the Constitution.
204 S 36(1) of the Constitution.
205 S 39(1) of the Constitution.
206 S 41 of the Constitution.
207 Roux (2013) 10.18–10.19.
208 Roux (2013) 10.19.
Separation of powers and the
three branches of government

3.1 Introduction

3.2 A new democratic constitutional dispensation within a system of separation of powers

Summary

3.1 Introduction
A study of the different branches of government can best be done by
using the separation of powers doctrine as a lens through which to look
at how the three branches operate and how they relate to one another.
In this chapter we therefore introduce the distinctly South African
version of the doctrine of separation of powers. The judiciary is still
developing this doctrine through the interpretation of the Constitution,
1996 (hereinafter referred to as the ‘Constitution’). In Chapter 2 of this
book we discussed the scope and content of the doctrine of separation
of powers as it manifests in various constitutional systems in other parts
of the world and, briefly, as it has thus far been developed in South
Africa. In the next three chapters we focus more pertinently on the
various branches of government established by the South African
Constitution,1 namely the legislature, the executive and the judiciary as
well as Chapter 9 institutions2 and the National Prosecuting Authority.3
We explore the composition, powers and functions of these branches of
government and the nature of the relationship between the various
branches with specific emphasis on the notion that these branches
operate in accordance with a system of checks and balances.
The discussion of these separate branches of government and their
relationship to each other takes place against the background of the
particular South African context highlighted in chapter 1, most notably
by what has been described as a ‘surprise re-entry’ and ‘resurgence’ of
traditional leadership in South Africa in the post-apartheid era.4 One of
the most vexing constitutional questions in the democratic era relates to
the role of traditional leaders and traditional governance structures,
and where and how these structures fit into a scheme of separation of
powers with its three branches of government.5 We will address this
question as we discuss the various branches of government. We do so as
we contend that the resurgence of customary practices and leadership
institutions in the democratic era is not as surprising as some
commentators have argued. This is especially so given that ‘South Africa
is as rich in tenacious institutions with indigenous roots as other
African countries’ and that these institutions ‘were entrenched (albeit
in distorted ways) over many decades of segregationist and apartheid
rule’.6 Moreover, if viewed from a historical perspective, it is sometimes
argued that traditional authorities in southern Africa ‘have always
engaged assertively with other sites of authority and forms of
government’.7 Current-day supporters of the maintenance and
restoration of traditional governance institutions and customs have
argued that traditional leaders have provided continuity of governance
even though they are undoubtedly tainted by their association with
segregation and apartheid. This is particularly so in rural areas where
there were scant alternative governance structures and the influence of
the institutions of the democratic state is at its weakest.8 Others,
however, see the resurgence of traditional governance institutions as a
regressive step that undermines progress towards democratic
consolidation in South Africa because traditional governance structures
are inherently undemocratic, patriarchal and potentially oppressive.9
Whatever a person’s view on traditional leadership and traditional
governance institutions, it is nevertheless important to explore the
powers and functions of the various branches of government and the
relationship between these branches with reference to these
institutions. To this end, we also discuss the powers and functions of the
National House of Traditional Leaders. Parliament created this
institution via the National House of Traditional Leaders Act (the
National House Act)10 pursuant to section 212(2)(a) of the Constitution.
This section permits the promulgation of legislation to deal with matters
relating to issues of traditional leadership. We will also discuss the more
recent Traditional and Khoi-San Leadership Act, 11 which further
regulates traditional leadership in South Africa.
Traditional descriptions of South African constitutional law ignore
those aspects of the South African political and governance context that
do not neatly reflect the Western-style constitutional structures
established by the Constitution. In this book, we focus on these
structures but do so with an awareness that there are different centres of
power in South Africa. One is centred around the formal institutions of
the legislature, the executive and the judiciary, all of which are
described and regulated in the Constitution. Another is centred around
a more informal and ever-changing set of institutions such as
traditional leadership institutions.
Apart from discussing the various branches of government with
reference to the role played by traditional leaders, we will also discuss
the various branches of government with reference to the role played by
political parties in bringing the Constitution into operation. Power is
centred in such political parties – especially the leadership of the most
dominant political parties, the African National Congress (ANC), the
Democratic Alliance (DA) and the Economic Freedom Fighters (EFF).
The internal culture of these parties and the leadership style of their
leaders thus influence how especially the legislature and the executive
operate within the doctrine of separation of powers.
 Lastly, we consider the composition, powers and functions of
various other constitutional institutions created to support
constitutional democracy. These are sometimes referred to collectively
as the Chapter 9 institutions. These constitutional bodies are required to
play an oversight role over the legislature, the executive and the
judiciary, and to deepen and safeguard democracy. However, we limit
our discussion in this regard to the following institutions: the Public
Protector;12 the Auditor-General;13 and the Electoral Commission.14 In
addition, we consider the Judicial Service Commission (JSC).15
In the following chapters, therefore, we deal with four interrelated
issues relating to the structures of government as these operate within a
system of separation of powers:
• The current chapter sets out and explains the framework within
which the three branches of government operate and provides a
brief overview of the historical origins of the doctrine of separation
of powers and its influence on South Africa’s new constitutional
dispensation.
• Chapter 4 deals with the composition and functioning of the
legislature and its relationship with the other branches of
government.
• Chapter 5 deals with the composition and functioning of the
executive and its relationship with the other branches of
government.
• Chapter 6 deals with the composition and functioning of the
judiciary and its independence from the other branches of
government as well as the prosecuting authority.
• Chapter 7 considers the role of certain Chapter 9 institutions.
• Chapter 9 considers traditional leadership and customary law,
which does not fit neatly within the separation of powers
framework.

3.2 A new democratic constitutional dispensation within

a system of separation of powers
The new constitutional dispensation established by the 1993
Constitution (the interim Constitution)16 and later the 1996
Constitution is often said to serve as a bridge between a past that was
characterised by the worst forms of political repression and inhumane
treatment of masses of people, and a future that uncompromisingly
commits the state to the values of human dignity, freedom and equality
for all persons, irrespective of race or creed.17 As we have seen, when the
interim Constitution was enacted, it signalled a dramatic change in the
system of governance from one based on rule by Parliament to a
constitutional state in which a supreme Constitution guarantees the
rights of individuals. ‘It also signalled a new dispensation, as it were,
where rule by force would be replaced by democratic principles and a
governmental system based on the precepts of equality and freedom.’18
But these dramatic changes were also reflected in necessary
changes to the structures of government. The 1993 and 1996
Constitutions thus introduced significant changes to the composition
and functioning of the legislative, executive and judicial branches of
government as well as the composition and functioning of governance
structures at the provincial and local level. At the heart of these changes
we find a more decisive, if not entirely strict, division of power between
the various branches of government and between different spheres of
government at the national, provincial and local levels. In the following
chapters we focus primarily on the national sphere of government and
the institutions created by the Constitution to regulate and check the
exercise of public power in this sphere. We then proceed to discuss the
distribution of powers and functions between the national sphere of
government and the other spheres in chapter 8 of this book.
The Constitution provides for the division of the national
government into three separate branches:
• The national Parliament, which consists of the National Assembly
(NA) and the National Council of Provinces (NCOP). Its members
are the people’s representatives and it is the highest law-making
authority.
• The national executive, which consists of the President and the
Ministers who together form the Cabinet. The Ministers are the
 political heads of different government portfolios and perform
executive functions.
• The judiciary exercises judicial review of government conduct.
Section 165 of the Constitution vests judicial authority in the courts.
The courts must be independent and are subject only to the law and
the Constitution, which they must apply without fear, favour or
prejudice.19

The Constitution is structured in such a way that different chapters are

dedicated to the different branches of government, namely the
legislative authority, executive authority and judicial authority. Chapter
4 of the Constitution deals exclusively with the legislative authority in
the national sphere of government, Chapter 5 deals exclusively with the
executive authority in the national sphere of government, while Chapter
8 is dedicated to the judicial authority of the Republic. This means that
the doctrine of separation of powers, although never directly mentioned
in the document, is nevertheless firmly entrenched in the 1996
Constitution of South Africa. In Glenister v President of the Republic of
South Africa and Others (Glenister I),20 for example, Langa CJ, in
reference to the separation of powers, stated that although not expressly
mentioned in the text, it was ‘axiomatic’ that it was ‘part of our
constitutional design’.21 And in Doctors for Life International v Speaker of
the National Assembly and Others, Ngcobo J stated that ‘the structure of
the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept of
separation of powers’.22
However, in at least one sense, the doctrine does not require a strict
separation between the judiciary on the one hand and the legislature
and executive on the other as it requires the judiciary to check whether
the other branches comply with the law and exercise their authority in
conformity with the Constitution.23 This potentially places the judiciary
in the firing line as the courts, which must ultimately interpret the
Constitution and flesh out the notion of separation of powers and its
limits, are the final arbiters of the supreme Constitution.24 Because the
Constitution is supreme and binding on all branches of government,25
and because the courts must interpret and enforce the Constitution, it
means that when the legislature or executive exercises its
constitutionally mandated authority, it must act in accordance with,
and within the limits of, the Constitution as determined by the courts.
As the Court stated in Doctors for Life:
The supremacy of the Constitution requires that ‘the obligations imposed by it
must be fulfilled.’ Courts are required by the Constitution ‘to ensure that all
branches of government act within the law’ and fulfil their constitutional
obligations. This Court ‘has been given the responsibility of being the ultimate
guardian of the Constitution and its values.’ Section 167(4)(e), in particular,
entrusts this Court with the power to ensure that Parliament fulfils its
constitutional obligations. This section gives meaning to the supremacy clause,
which requires that ‘the obligations imposed by [the Constitution] must be
fulfilled’. It would therefore require clear language of the Constitution to
deprive this Court of its jurisdiction to enforce the Constitution.26

The courts must exercise this vital task while at the same time
remaining conscious of the limits on judicial authority and the
Constitution’s design and must leave certain matters to other branches
of government. This means that the judiciary should not interfere in the
processes of other branches of government unless to do so is mandated
by the Constitution.27 Accordingly, the division of powers is not strictly
enforced if it appears, for example, that one sphere of government is
failing to comply with its constitutional obligations. The courts can
always intrude to check the other branches when they fail to comply
with their constitutional obligations.28
In this regard, the judgment in Glenister I is apposite where the
Court held that:
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. But even
in these circumstances, courts must observe the limits of their powers.29

This is in accordance with the test formulated in Doctors for Life, which
provides that intervention by a court in the legislative process:
would only be appropriate if an applicant can show that there would be no
effective remedy available … once the legislative process is complete, as the
unlawful conduct will have achieved its object in the course of the process. The
applicant must show that the resultant harm will be material and irreversible.30

A dialogic model of the separation of powers

doctrine
The separation of powers doctrine in a liberal
democracy is said to enable the complex task of
governance, law making and law enforcement to be
performed by the institution best equipped to do so. It
is also said to disperse power to avoid the
overconcentration of power in one body or one
person.31 But, as Liebenberg points out, the doctrine
as it is traditionally envisaged in liberal thought ‘has
the potential to frustrate transformation when it
assumes an idealised form of strictly demarcated
separate spheres, instead of a functional and
pragmatic device to facilitate responsive, accountable
government’.32 What is envisaged in the South African
model of constitutional democracy is a relationship
between the three branches that ensures
accountability as well as responsiveness and openness
on the part of the various branches. Liebenberg argues
that in this model, which we shall call the ‘post-liberal’
model, the focus is not so much on whether one
branch of government has transgressed the boundaries
of the other, but rather on ‘whether the branches all
remain able to participate in the process of mutually
defining their boundaries’.33 This is also sometimes
called a dialogic model of the separation of powers as
it envisages an ongoing, structured, constitutional
dialogue between the three branches of government.
Although the dialogue will often be robust and
although severe tensions may arise among the three
branches of government, the three branches will
remain engaged with one another on a formal level to
test the limits of power exercised by each branch.
Liebenberg contends that this fluid, dialogic model of
separation of powers is best suited to promoting
transformative jurisprudence.34 When considering the
appropriate role of the three branches of government
in the South African context, it is therefore important to
take into account the transformative nature of the
South African Constitution.
In Certification of the Constitution of the Republic
of South Africa, 1996, the Constitutional Court
affirmed that there was no universal model of
separation of powers. It claimed that in democratic
systems of government in which checks and balances
result in the imposition of restraints by one branch of
government on another, there is no separation that is
absolute. It continued:
[t]he principle of separation of powers, on the one hand,
recognises the functional independence of branches of
government. On the other hand, the principle of checks and
balances focuses on the desirability of ensuring that the
constitutional order, as a totality, prevents the branches of
government from usurping power from one another. In this sense
it anticipates the necessary or unavoidable intrusion of one
branch on the terrain of another. No constitutional scheme can
reflect a complete separation of powers: the scheme is always
one of partial separation.35

This means that courts will inevitably play an important

role in regulating and safeguarding the separation of
powers. However, it also means that the courts may be
accused of intruding too far into the domain of the
other two branches of government when they do so.
This raises the counter-majoritarian problem
highlighted in chapter 2. However, as the ultimate
guardians of the Constitution, the courts not only have
the right to intervene in order to prevent the violation of
the Constitution, they also have the duty to do so.36
 This is because it is a necessary component of the
doctrine of 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. Courts must nevertheless
observe the limits of their powers.
The converse question arises: can the legislature
and the executive ever intrude on the terrain of the
judiciary? For example, can the legislature impose
limits on the power of the courts to sentence those
convicted of criminal offences and, if so, to what
extent? 37 Can the executive engage members of the
judiciary in informal discussions, for example by
creating ‘appropriate mechanisms’ in order ‘to
facilitate for [sic] regular interface between the three
spheres of the State to enhance synergy and
constructive engagement among them in pursuit of
common transformative goals that are geared to
benefit the society at large’? 38 These are complex
questions, but in essence the answer is that as there is
no absolute separation of powers, there is no absolute
bar on the other two branches intruding on the terrain
of the judiciary. However, there is one important
caveat, namely that no intrusion can ever be allowed if
such an intrusion will undermine the independence or
impartiality of the judiciary. For this reason, it is
unlikely that a court will ever approve of the creation of
a mechanism to facilitate regular private discussions
between the judiciary and the other branches of
government to enhance synergy and constructive
engagement among them in pursuit of common
transformative goals.39

SUMMARY
The Constitution creates three branches of government – the legislature,
the executive and the judiciary – and the study of each of these
branches of government must be conducted with reference to the
relationship between the branch being studied and the other two
branches. It must also be understood with reference to the practices of
traditional leadership and the culture within dominant political parties.
Understanding the separation of powers doctrine is therefore pivotal for
understanding how the various branches of government work and what
the limits of the power of each branch are. In this regard, the judiciary
must be treated as unique as it requires a high degree of independence
from the other branches of government. The judiciary has the vital task
of enforcing the provisions of the Constitution and of ensuring that the
other branches of government act in accordance with its provisions.
However, this format does not easily accommodate other structures of
government such as traditional leadership or Chapter 9 institutions.

1 See generally chapters 4, 5 and 8 of the Constitution, which detail the provisions pertaining
to Parliament, the President and the national executive, and the judiciary respectively, read
with Chapters 3 (co-operative government), 6 (the provinces), 7 (local government) and
Schedules 4 and 5 that delineate areas of concurrent national and provincial, and exclusive
provincial legislative competences.
2 Sees ss 181–94 of the Constitution.
3 See s 179 of the Constitution.
4 Oomen, B (2005) Chiefs in South Africa, Law, Culture, and Power in the Post-Apartheid Era
11.
5 Addressing this problem is made even more difficult by the fact that many traditional
leaders were co-opted by the apartheid regime. At the time of writing there has been a
resurgence of support for traditional leadership institutions and the role of African
customary law. Evidence of the latter can be garnered from the promulgation of the
Communal Land Rights Act 11 of 2004 (CLaRA) and the subsequent constitutional
challenge to it in Tongoane and Others v National Minister for Agriculture and Land Affairs
and Others 2010 (6) SA 214 (CC). See also Pilane and Another v Pilane and Another 2013 (4)
BCLR 431 (CC). For the leading commentary on CLaRA, traditional leadership and
communal land, see Claassens, A and Cousins, B (eds) (2008) Land, Power, and Custom:
Controversies Generated by South Africa’s Communal Land Rights Act.
6 See Beall, J, Mkhize, S and Vawda, S (2005) Emergent democracy and ‘resurgent’ tradition:
Institutions, chieftaincy and transition in KwaZulu-Natal Journal of Southern African
Studies 31(4):755–71 at 756.
7 Beall et al (2005) 756.
8 Hobsbawm, E and Ranger, T (eds) (1983) The Invention of Tradition and Vail, L (ed) (1989)
The Creation of Tribalism in Southern Africa.
9 See Beall et al (2005) fn 5.
10 Act 22 of 2009.
11 Act 3 of 2019.
12 S 181(1)(a) of the Constitution.
13 S 181(1)(e) of the Constitution.
14 S 181(1)(f ) of the Constitution.
15 S 178 of the Constitution.
16 The Constitution of the Republic of South Africa 200 of 1993.
17 See s 1 read with s 7 of the Constitution. The metaphor of a bridge was first introduced into
South Africa’s constitutional lexicon by the postamble to the interim Constitution titled
‘National Unity and Reconciliation’. It was popularised by Etienne Mureinik – see Mureinik,
E (1994) A bridge to where? Introducing South Africa’s interim Bill of Rights SAJHR 10:30.
See also S v Makwanyane and Another 1995 (3) SA 391 (CC) para 262 where Mohamed DP,
quoting in part the postamble to the interim Constitution, said: ‘The South African
Constitution is different: it retains from the past only what is defensible and represents a
decisive break from, and a ringing rejection of, that part of the past which is disgracefully
racist, authoritarian, insular, and repressive and a vigorous identification of and
commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos,
expressly articulated in the Constitution … What the Constitution expressly aspires to do is
to provide a transition from these grossly unacceptable features of the past to a
conspicuously contrasting “future founded on the recognition of human rights, democracy
and peaceful co-existence and development opportunities for all South Africans,
irrespective of colour, race, class, belief or sex”.’
18 S v Makwanyane and Another 1995 (3) SA 391 (CC) para 220.
19 S 165(1) and (2).
20 2009 (1) SA 287 (CC). This case is known as Glenister I as the Constitutional Court later
handed down judgment in a similar matter in Glenister v President of the Republic of South
Africa and Others 2011 (3) SA 347 (CC), known as Glenister II.
21 Glenister I paras 29–32.
22 2006 (6) SA 416 (CC) para 37. See also Certification of the Constitution of the Republic of
South Africa, 1996 1996 (4) SA 744 (CC) paras 106–113 where the Court held that the
provisions of the Constitution are structured in a way that makes provision for the
separation of powers, and South African Association of Personal Injury Lawyers v Heath and
Others 2001 (1) SA 883 (CC) para 22.
23 See, for example, s 172(1) of the Constitution which provides that a court: ‘(a) must declare
that any law or conduct that is inconsistent with the Constitution is invalid to the extent of
its inconsistency; and (b) may make any order that is just and equitable, including: (i) an
order limiting the retrospective effect of the declaration of invalidity; and (ii) an order
suspending the declaration of invalidity for any period and on any conditions, to allow the
competent authority to correct the defect.’
24 S 167(5) of the Constitution provides: ‘The Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the President is constitutional,
and must confirm any order of invalidity made by the Supreme Court of Appeal, the High
Court of South Africa, or a court of similar status, before that order has any force.’
25 S 1(c) read with s 8(1).
26 Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416
(CC) para 38.
27 Doctors for Life para 37.
28 See Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5)
SA 721 (CC) para 99 where the Court stated: ‘The primary duty of courts is to the
Constitution and the law, “which they must apply impartially and without fear, favour or
prejudice”. The Constitution requires the state to “respect, protect, promote, and fulfil the
rights in the Bill of Rights”. Where state policy is challenged as inconsistent with the
Constitution, courts have to consider whether in formulating and implementing such
policy the state has given effect to its constitutional obligations. If it should hold in any
given case that the state has failed to do so, it is obliged by the Constitution to say so. In so
far as that constitutes an intrusion into the domain of the executive, that is an intrusion
mandated by the Constitution itself.’
29 Glenister I para 33. See also Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC) para 31
where the Constitutional Court affirmed is reluctance to interfere in the power of the NA to
determine its own internal arrangements, proceedings and procedures, and to make rules
and orders concerning its business.
30 Doctors for Life para 44. This test applies equally to executive decision-making and
execution of law and policy.
31 Glenister I para 35. See also Liebenberg, S (2010) Socio-Economic Rights Adjudication under
a Transformative Constitution 67.
32 Liebenberg (2010) 67.
33 Liebenberg (2010) 69, quoting Minow, M (1990) Making All the Difference: Inclusion,
Exclusion and American Law 361.
34 Liebenberg (2010) 71.
35 1996 (4) SA 744 (CC) paras 108–109. See also De Lange v Smuts NO and Others 1998 (3) SA
785 (CC) para 60 where Ackermann J stated: ‘I have no doubt 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 measures in the public interest.’
36 Doctors for Life para 70.
37 In S v Dodo 2001 (3) SA 382 (CC), the Constitutional Court found that the legislative
prescription requiring courts to impose mandatory minimum sentences in certain cases
did not necessarily infringe on the separation of powers doctrine. As checks and balances
constitute an integral part of the separation of powers principle and prevent one arm of the
state from becoming too powerful in the exercise of the powers allocated to it, legislation
on penal sentencing does not, per se, infringe the separation of powers principle between
the legislature and the judiciary.
38 De Vos, P (2011, 24 November) Cabinet statement on transformation of judicial system
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/cabinet-
statement-on-transformation-of-judicial-system/.
39 See Yacoob, Z (2012, 12 March) ‘The Dynamic Constitution’, Keynote Address, University of
Cape Town Constitution Week, available at http://constitutionallyspeaking.co.za/justice-
zac-yacoob-on-the-dynamic-constitution/ where, in reference to the proposed
Department of Justice’s ‘review’ of the jurisprudence of South Africa’s Constitutional Court
and Supreme Court of Appeal and an evaluation of the contribution or lack thereof of
jurisprudence to the transformation of society, the Justice stated: ‘… this cannot be
intended to mean that the executive and the legislature should be able to discuss matters of
importance with the judiciary directly and outside a court hearing, in an effort to influence
it. If this is what is meant I would find it difficult to agree.’
Separation of powers and the
national legislature

4.1 Introduction

4.2 The structure and composition of Parliament

4.2.1 The structure of Parliament
4.2.2 The role of political parties

4.3 General rules regarding the operation of Parliament

4.3.1 Introduction
4.3.2 Openness and transparency in Parliament
4.3.3 The powers and privileges of Members of Parliament
4.3.4 Public involvement in the legislative and other processes of the National Assembly and
the National Council of Provinces

4.4 The National Assembly

4.4.1 The composition of the National Assembly
4.4.2 The party proportional representation electoral system
4.4.3 New Nation Movement NPC v President of the Republic of South Africa
4.4.4 The right to vote and the Electoral Commission
4.4.5 Eligibility for election to the National Assembly
4.4.6 Duration of the National Assembly, sittings and its dissolution
4.4.7 Powers and functioning of the National Assembly

4.5 The National Council of Provinces

 4.5.1 The composition and functioning of the National Council of Provinces
4.5.2 Procedures, internal arrangements and committees of the National Council of Provinces

4.6 Functions of Parliament

4.6.1 Introduction
4.6.2 National forum for public consideration of issues
4.6.3 Holding the executive accountable to Parliament
4.6.4 Maintaining oversight of the national executive authority and other organs of state
4.6.5 Passing of legislation
4.6.6 Delegation of legislative powers to executive or other legislatures 176

Summary

Figure 4.1 The separation of powers and the national legislature

4.1 Introduction
As we noted in Chapter 2, one of the fundamental concepts on which
South Africa’s system of constitutional law is based is the separation of
powers. This concept seeks to curtail the abuse of public power by
distributing it among the legislative, executive and judicial branches of
government, which can then be held accountable for the manner in
which they have exercised their powers and performed their duties.
Although the Constitution does not expressly refer to the separation of
powers, it does divide the national government into three separate
branches, namely the national legislature or Parliament as it is referred
to by the Constitution, the national executive and the judiciary. In this
chapter we focus on Parliament. More specifically, we focus on the
structure, composition, functions, powers, duties and procedures of
Parliament. Before turning to consider these issues, however, it will be
helpful to discuss the constitutional responsibilities of Parliament.
The constitutional responsibilities of Parliament were summed up
by the Constitutional Court (in somewhat lofty language) in Economic
Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly and Others,1
where the Court held that, not only is Parliament ‘the embodiment of
the centuries-old dreams and legitimate aspirations of all our people’,
but is also ‘the voice of all South Africans, especially the poor, the
voiceless and the least-remembered’. In addition, Parliament is ‘the
watchdog of state resources, the enforcer of fiscal discipline and cost-
effectiveness for the common good of all our people’. Apart from these
responsibilities, the Court held further, Parliament is also responsible
for ‘holding the Executive accountable for the fulfilment of the promises
made to the populace …’ and for passing ‘legislation with due regard to
the needs and concerns of the broader South African public’. In light of
these dicta, it may be said that Parliament is responsible for:
• articulating the aspirations, concerns and desires of all South
Africans, especially of the poorest and most vulnerable
• ensuring that all executive organs of state in the national sphere of
government are accountable to it
• maintaining oversight of the exercise of national executive authority
and especially the authority to use state resources and spend public
money
• considering, passing, amending or rejecting legislation on any
subject that falls within its legislative authority.

In the words of the Constitutional Court itself, ‘Parliament is the

mouthpiece, the eyes and the service-delivery-ensuring machinery of
the people. No doubt, it is an irreplaceable feature of good governance
in South Africa’.2
4.2 The structure and composition of Parliament

4.2.1 The structure of Parliament

Parliament is a bicameral legislature. This means that it is divided into
two Houses: the National Assembly (NA) and the National Council of
Provinces (NCOP).3 Although legislative power is distributed between
these two Houses, the NA is constitutionally and politically the
dominant House. In essence, the idea behind bicameralism is that the
two Houses of Parliament represent different interests and thus act as a
check on one another.4 Further, having two Houses is said to provide for
better representation of the electorate in a heterogeneous society, to
assist in alleviating Parliament’s workload and to promote a thorough
consideration of matters before Parliament.5 We argue that the main
justification for bicameralism is to ensure adequate democratic
representation of different interests, namely the interests of the people
by the NA on the one hand, and the interests of the nine provinces by
the NCOP on the other hand.6
In most bicameral legislatures, including the South African
Parliament, the members of each House are elected or appointed in
different ways. In the case of the NA, members are directly elected via
their respective political parties in a national election. In the case of the
NCOP, delegates are indirectly elected via the provincial legislatures.
The members of each House are elected or appointed in different ways
because they are supposed to represent different interests and to act as
a check on the exercise of power by the other House. In South Africa,
the NA is intended to represent the interests of all South Africans7 while
the NCOP is intended to represent the interests of provinces in the
national legislature.8
Although legislative authority and other powers are distributed
between the two Houses, the NA is the dominant and more powerful
House of Parliament. This is because:
• the NA elects 9 and can also dismiss 10 the President
• with the exception of two members, all of the other members of the
executive must be selected from and remain members of the NA11
 the NA must hold all executive organs of state in the national sphere
•
of government accountable to it
• the NA must maintain oversight of the exercise of national executive
authority, including the implementation of legislation12
• the NA plays a decisive role in various other appointments.13 For
example, the appointment of the Commissioners of the Chapter 9
institutions which are designed to support constitutional democracy
are made by the NA.

The NCOP has a less defined role in holding the executive to account
and has no role in the appointment or dismissal of members of the
executive. Unlike the executive, which has its seat in Tshwane, the seat
of Parliament is in Cape Town.14 However, an Act of Parliament can
determine that the seat of Parliament is changed as long as the correct
procedure is followed.15 Sittings of the NA or the NCOP are permitted at
places other than the seat of Parliament, but only on the grounds of
public interest, security or convenience, and if provided for in the rules
and orders of the NA16 or the NCOP.17

4.2.2 The role of political parties

It is important to note that in both the NA and the NCOP the democratic
link between voters and the legislature is mediated through political
parties. Currently, this means a person cannot become a member of
one of the Houses of the national legislature unless that person is a
member of a political party. The Constitution thus establishes, not only
a parliamentary system of government in which the majority party in
the NA forms the government, but also a system of party government.
This is because the system cannot function in the absence of political
parties.18
Party government is usually defined as a system of government in
which political parties have a decisive influence on the way in which the
government is composed, on government policy and on the actions of
the elected representatives in the legislature.19 Through a mixture of
conventions and traditions inherited from British constitutional law
and the effects of the electoral system employed to select members of
the NA, political parties and their leaders are extremely powerful in
South Africa and loom large in any discussion of the composition and
functioning of the national legislature. In the Certification of the
Constitution of the Republic of South Africa, 1996 (First Certification)
judgment, the Constitutional Court confirmed the pivotal role played by
political parties in the South African constitutional system by stating
that:
Under a list system of proportional representation, it is parties that the
electorate votes for, and parties which must be accountable to the electorate. A
party which abandons its manifesto in a way not accepted by the electorate
would probably lose at the next election.20

Despite the important role played by political parties, the Constitution

(as well as national legislation) provides little guidance as to the
manner in which political parties must operate and about the specific
relationship between the leadership of a political party (who might not
serve in the legislature) and its representatives in the legislature or the
executive.21 Thus it is unclear to what extent political party leaders can
‘micromanage’ their members in the legislature and the executive and
whether the extra-parliamentary leadership of a political party can
dictate to its members what they must say and how they should act
when serving in the legislature or executive. However, the
Constitutional Court confirmed in United Democratic Movement v
Speaker of the National Assembly and Others22 that when a conflict
arises for members of the legislature between upholding constitutional
values, on the one hand, and party loyalty, on the other, Members of
Parliament (MPs) have an ‘irrevocable’ duty to ‘serve the people and do
only what is in their best interests’.23 The judgment dealt with the
question of whether the Speaker of the NA was permitted to order the
members of the NA to vote by secret ballot on the impeachment of the
President. In holding that the Speaker does have such a power, the court
pointed out that MPs of the governing political party who vote to
impeach the President – the leader of their own party – may well suffer
adverse consequences if it becomes known how they voted. Although
‘an individual member remains free to follow the dictates of personal
conscience’,24 it may have consequences to do so. In summary, the court
described the position of MPs as follows:
Central to the freedom ‘to follow the dictates of personal conscience’ is the
oath of office. Members are required to swear or affirm faithfulness to the
Republic and obedience to the Constitution and laws. Nowhere does the
supreme law provide for them to swear allegiance to their political parties,
important players though they are in our constitutional scheme. Meaning, in
the event of conflict between upholding constitutional values and party loyalty,
their irrevocable undertaking to in effect serve the people and do only what is
in their best interests must prevail. This is so not only because they were
elected through their parties to represent the people, but also to enable the
people to govern through them, in terms of the Constitution.25

The rights of citizens as members of political

parties
The relationship between political parties and their
leaders, on the one hand, and the elected
representatives of political parties serving in
Parliament, on the other hand, is not clearly defined in
the Constitution. However, in Ramakatsa and Others v
Magashule and Others 26 the Constitutional Court
affirmed the strong link between internal party
democracy and the right of citizens to take part in the
political process and to vote in elections. Thus Yacoob
J stated that:
the right to participate in the activities of a political party confers
on every political party the duty to act lawfully and in accordance
with its own Constitution. This means that our Constitution gives
every member of every political party the right to exact
compliance with the Constitution of a political party by the
leadership of that party.27

Unlike the constituency-based electoral system that

applies in the United Kingdom, India and Zimbabwe,
and that applied in South Africa before 1994, the
 electoral system for electing members of the NA must
‘result, in general, in proportional representation’.28
This means a person who intends to vote in national
elections must vote for a political party registered for
the purpose of contesting the elections and not for a
candidate. It is the registered party that nominates
candidates for the election on regional and national
party lists. Political parties are therefore indispensable
conduits for the enjoyment of the right to vote in
elections.
If a person chooses to become a member of a
political party and wants to take part in its internal
elections, that person has a right to do so in
accordance with the rules of that party. The exercise of
the right is protected not only against external
interference but also against interference arising from
within the party. Although it is left largely to political
parties themselves to regulate how they deal with
internal elections, political parties may not adopt
constitutions which are inconsistent with the rights
protected in the Constitution. This means that the
Constitution of a political party that limits or
extinguishes the rights of members of that party to take
part in its internal elections freely and fairly may well
be declared invalid by a court as being in breach of
section 19 of the Bill of Rights.29

Despite the Constitutional Court’s view in the UDM judgment that MPs
need to serve the people above their party, political parties and their
leaders still hold enormous power over elected members of the
legislature in South Africa. There are four interrelated reasons for this:
• First, we inherited our system of parliamentary government from
Britain. In this system the support of the majority party in
Parliament is required to form the government.30 Thus, the executive
 requires the continued support of the majority of members of the
legislature to survive. This provides a strong incentive to members of
the legislature to ‘toe the party line’, regardless of any differences an
individual member of the legislature may have with the decisions or
actions of the political party leadership. If members of the governing
party fail to respect party discipline and vote with opposition parties
and against the majority party, and the government loses a vote in
Parliament, this can erode the democratic legitimacy of the
government and can even lead to the fall of that government.
• Second, we also inherited the convention of strict party discipline
from the Westminster system associated with the system of
parliamentary government.31 This convention places severe
restrictions on individual Members of Parliament (MPs) to disobey
party leaders when they engage in legislative or executive action.
The convention of strict party discipline was applied in pre-
democratic South Africa in the Westminster Parliament as well as in
the tricameral Parliament. When the new democratic system
replaced the old system, the convention of strict party discipline was
retained. Thus, this convention remains intact in democratic South
Africa and forms part of the parliamentary culture.
• Third, the internal culture of South African political parties places
great emphasis on internal party discipline. This type of internal
culture values and rewards party members who demonstrate loyalty
to the party and the decisions democratically arrived at by that
party. It also values respect for the leadership of the party and
rewards those who display such respect.32 At its most extreme, such
a culture can be said to be one of democratic centralism. This allows
internal party debate on an issue until the party has made a decision
on that issue. Once the decision has been taken, all members of the
party are required to support the decision and are not allowed to
criticise that decision or act in a way that would undermine the
authority of the party and the decision taken.
• Last, the electoral system in South Africa assists party leaders to
enforce strict discipline among members of the legislature. This is
because, as we shall see, members of the legislature depend on the
 support of their various political parties to get elected to the
legislature and can also easily be removed from the legislature by
their respective political parties. Accordingly, members of the
legislature are, to some extent, beholden to the leadership of their
respective political parties and to the party machinery to retain their
positions. This means that the members of the legislature are not
free to act as they see fit in fulfilling their various duties as members
of the NA or the NCOP. Once the political party to whom a legislator
belongs has made a decision on a pertinent issue being considered
by the legislature, the members of that party are usually bound by
that decision and must follow it. For example, if a political party has
decided to vote in favour of a Bill before Parliament and has
instructed its legislators accordingly, they cannot refuse to vote for
the Bill because for some reason or another they oppose the Bill. The
members of that political party will usually be required to support
the Bill and vote in favour of it even if a member disagrees with the
position taken by his or her political party.33 The situation is more
fluid and complex in cases where the political party has not taken a
final public stance on an issue being considered by the legislature,
or where members of the legislature are legally expected to fulfil
their constitutional duty to consider and pass legislation, to hold the
members of the executive accountable and to oversee the work of
the executive in a diligent and responsible manner.

It is imperative to understand this delicate and sometimes complex

relationship between members of the legislature, their respective
political parties and the members of the executive in order to
understand the practical day-to-day functioning of the legislature.

Difficulties faced by MPs who must both fulfil

their constitutional obligations while also
toeing the party line
Although the Constitutional Court held (as we
explained above) that MPs must support constitutional
values above party loyalty, it is easier said than done.
This is because an MP who defies his or her party may
face serious consequences, including ultimately being
expelled from the party and losing his or her seat in
Parliament. This pressure applies to any MP regardless
which party he or she belongs to. But as an example,
the situation of ANC members who hold elective office
can be considered. In terms of its Constitution. all
elective officials are required to be members of the
appropriate caucus, to function within its rules and to
abide by its decisions under the general provisions of
this Constitution and the constitutional structures of
the ANC.34
Members who fail to adhere to this injunction can
be disciplined and punished, and such punishment
can include suspension or expulsion from the party.35
Many other political parties in South Africa have
roughly similar provisions to assist the party to enforce
its discipline on its elected members. For example in
2011 the late ANC stalwart and long-time MP, Ben
Turok, faced disciplinary charges from his party for not
voting for the Protection of State Information Bill when
it was before the National Assembly (NA). Turok walked
out of the NA before the vote, and then accepted an
invitation for an interview from SAfm, a local radio
station, where he defended his decision. He said his
objection was that the Bill had ethical shortcomings.
As an MP who had sworn an oath to the Constitution,
and also as co-chairman of Parliament’s ethics
watchdog, the Joint Committee on Members’ Interests,
he was entitled to examine ethics across the board.36
In an interview given years later Turok recounted that
he received a charge sheet from the party two weeks
after he refused to vote for the Bill and explained: ‘It
read exactly like a police charge sheet that begins with
 “you are accused etc, etc” and what I was accused of
was counter revolution. That was the exact phrase
used.’37 The ANC later dropped the charges against
him, but in terms of the party’s Constitution, it would
have been within its rights to discipline the veteran MP.
In another instance, another governing party MP, Dr
Makhosi Khoza, who openly criticised former President
Jacob Zuma (who was the leader of the party at the
time), resigned from the party after she was threatened
that disciplinary action would be instituted against
her.38
These events illustrate the difficulties faced by
individual MPs who must fulfil their constitutional
obligations to hold the executive to account and to
pass constitutionally valid and appropriate legislation
on the one hand while also being required to toe the
party line on the other hand.

4.3 General rules regarding the operation of Parliament

4.3.1 Introduction
The NA and the NCOP have the power to determine and control their
own internal arrangements, proceedings and procedures.39 The
Constitution thus authorises the NA and the NCOP to make joint rules
and orders concerning the joint business of the two Houses.40 It also
authorises the two Houses to make rules separately regarding their own
operations.41 In addition, the Constitution requires the NA and NCOP to
make rules and orders to provide for the composition, powers and
functioning of committees.42 When Parliament exercises this power, it
must do so in a manner that gives effect to the provisions of the
Constitution. Rules that clash with any section of the Constitution,
therefore, may be declared invalid by a court of law.43 The Constitutional
Court has also ruled that the failure by the NA to make rules when this
was required by a specific provision of the Constitution was in breach of
the Constitution.44
Both Houses of Parliament and their committees have wide-ranging
powers not dissimilar to those of a court of law and can summon any
person, including the President and Cabinet Ministers, to appear before
them to:
• give evidence under oath or affirmation, or to produce documents
• require any person or institution to report to it
• compel, in terms of national legislation or the rules and orders, any
person or institution to comply with a summons or requirement to
produce documents
• receive petitions, representations or submissions from any
interested persons or institutions.45

Usually, the relevant committee will request a witness to appear before

it to answer questions and to produce any documents required, or
institutions or individuals will request to make written and oral
submissions to a committee. If a witness refuses to appear after being
asked to do so by a committee, that witness can be summonsed to do so
and can ultimately be compelled to appear and to answer questions.
However, the Rules of the National Assembly46 make it clear that this
power should be exercised sparingly and prohibit any committee from
summonsing a witness without first having satisfied the Speaker that
the evidence of such witness will be material to the enquiry.47
It is therefore clear that the two Houses of Parliament have wide
powers to fulfil their mandates in the best way chosen by each of them.
However, there are at least three distinct ways in which these powers are
curtailed by the Constitution:
• First, both Houses are required to act in an open and transparent
manner and cannot make rules that would extinguish the
constitutional requirement of openness.
• Second, members of both Houses as well as Cabinet members who
appear before them enjoy certain privileges which cannot be
curtailed by Parliament or anyone else.
• Third, both Houses are required to facilitate public involvement in
their legislative and other processes.

4.3.2 Openness and transparency in Parliament

‘Democracy in South Africa is predicated on open government in which
all citizens participate.’48 The Constitution thus requires both the NA
and the NCOP to conduct their business in an open manner, and hold
their sittings and those of their committees in public.49 This requirement
is closely linked to the right of every citizen to vote in elections, as this
right can only be exercised meaningfully ‘if voters know what their
representatives do and say in Parliament’. As ‘the vast majority of people
are not actually in Parliament, they must rely on public reports and
broadcasts,’ and when Parliament limits the ability of journalists to
report on what happens in Parliament, this limits the rights of citizens.50
In Doctors for Life, the Constitutional Court emphasised the importance
of public access to Parliament:
The participation by the public on a continuous basis provides vitality to the
functioning of representative democracy. It encourages citizens of the country
to be actively involved in public affairs, identify themselves with the
institutions of government and become familiar with the laws as they are
made. It enhances the civic dignity of those who participate by enabling their
voices to be heard and taken account of … It strengthens the legitimacy of
legislation in the eyes of the people. Finally, because of its open and public
character, it acts as a counter-weight to secret lobbying and influence-peddling
… Public access to Parliament is a fundamental part of public involvement in
the law-making process. It allows the public to be present when laws are
debated and made. It enables members of the public to familiarize themselves
with the law-making process and thus be able to participate in the future. The
opportunity to submit representations and submissions ensures that the public
has a say in the law-making process.51

However, reasonable measures may be taken to regulate public access,

including access of the media, to Parliament and its committees, and to
provide for the searching of any person and, where appropriate, the
refusal of entry or the removal of any person from the precinct.52 The
SCA held in Primedia Broadcasting (a division of Primedia (Pty) Ltd)
and Others v Speaker of the National Assembly and Others53 that the test
to be applied to determine whether the regulation of access to
Parliament is reasonable and therefore constitutionally permissible ‘is
not only whether the limitation is proportionate to the end sought to be
achieved, but also whether other measures would better achieve the
end, or would do so without limiting others’ rights’.54 This case related to
events that occurred at the State of the Nation Address (SONA) in 2015,
after the State Security Agency (without seeking the authority of
Parliament), employed a device that disrupted – jammed –
telecommunication signals when the sitting of Parliament began.
Furthermore, when MPs of the Economic Freedom Fighters (EFF)
disrupted the proceedings at the start of the sitting, the parliamentary
television broadcast feed was limited to showing the face of the Speaker,
and showed nothing of a scuffle that broke out between members of the
EFF and security officials as they tried to force EFF Members of
Parliament out of the Parliamentary chamber. Applying the test set out
above, the court ruled that the use of the jammer in this case was an
unconstitutional limitation on the right of access to Parliament and that
the manner in which the SONA proceedings were broadcast was
unconstitutional and unlawful.
The NA and the NCOP are further explicitly prohibited from
excluding the public, including the media, from a sitting of a committee
unless it is reasonable and justifiable to do so in an open and
democratic society.55 Rule 57(1) of the Rules of the NA further regulates
the possible limits on the openness and transparency of the NA by
stating:
[t]he power to admit visitors to the places set apart for them in the Chamber or
public galleries of the Chamber or in any other venue in which the House or a
mini-plenary session or a committee of the House is meeting, or to regulate or
limit any activity, access or movement of visitors whilst within the precincts of
Parliament or a venue utilised for parliamentary work, vests in the Speaker,
subject to Section 59 of the Constitution.56

The fact that the Constitution requires both the NA and the NCOP to
conduct their business in an open manner and to hold their sittings and
those of their committees in public means that these events, as well as
any other business of Parliament, may not normally take place in secret
and neither may members of the public be prevented from attending
them. As the Constitutional Court stated in Doctors for Life
International v Speaker of the National Assembly and Others,57 these
sections of the Constitution may be classified as ‘manner and form
provision[s] equivalent to the provisions for a quorum, and the number
of votes required to take a decision’. Any failure to comply with them,
therefore, ‘would have grave implications for the validity of any conduct
that passes a law’.58

4.3.3 The powers and privileges of Members of Parliament

The power of Parliament to determine its own procedures is not only
limited by the requirements of openness, accountability and
transparency but also by other more specific duties imposed on
Parliament by the Constitution.59 In addition, it is also limited by the
privileges conferred on Cabinet Ministers, Deputy Ministers and
members of the NA and NCOP of freedom of speech and freedom from
civil or criminal proceedings, arrest, imprisonment or damages for
anything they have said or done in the NA or the NCOP or one of their
committees.60
Parliamentary privilege is based on the notion that Members of
Parliament need to be able to speak freely and uninhibitedly to be able
to do their work and to expose wrongdoing without the fear of being
held legally liable for what they say. Without this protection, Members
of Parliament would be handicapped in performing their parliamentary
duties. In addition, the authority of Parliament itself in confronting the
executive and as a forum for expressing the anxieties of citizens would
be correspondingly diminished.61

Parliamentary privilege does not extend to

personal matters.
In Dikoko v Mokhatla,62 the respondent, who was the
municipal manager of the Southern District
Municipality in the North West Province, sued the
 applicant, who was the mayor of the same
municipality, for defamatory remarks the applicant had
made while giving evidence to the Standing Committee
on Public Accounts (SCOPA) of the North West
Provincial Legislature. In his defence, the applicant
argued that he was protected by section 28 of the
Local Government: Municipal Structures Act63 which
confers the same privileges and immunities on
municipal councillors that the Constitution confers on
MPs.
The Constitutional Court rejected this argument on
the grounds that the defamatory statements made by
the applicant did not form part of the legitimate
business of the Southern District Municipality, but
pertained to his own personal business. In arriving at
this decision, however, the Court set out the purpose
underlying the defence of parliamentary privilege in a
constitutional democracy. In this respect, the Court
held that:
[i]mmunising the conduct of members from criminal and civil
liability during council deliberations is a bulwark of democracy. It
promotes freedom of speech and expression. It encourages
democracy and full and effective deliberation. It removes the fear
of repercussion for what is said. This advances effective
democratic government.64

Parliamentary privilege was developed in the British context to protect

Members of Parliament from interference by the monarch. In the
British context, parliamentary privileges are found chiefly in ancient
practices asserted by Parliament and accepted over time by the Crown
and the courts as the law and custom of Parliament.65 What the House
of Commons originally claimed as customary rights eventually
hardened into legally recognised privileges.66 Similar privileges are now
contained in the South African Constitution. In this respect, the
Constitution provides that Cabinet members, Deputy Ministers and
members of the NA have freedom of speech in both the NA and the
NCOP as well as in its committees, subject only to their rules and
orders.67 In addition, the Constitution also provides that these members
are not liable to civil or criminal proceedings, arrest, imprisonment or
damages for anything that they have said in, produced before or
submitted to the NA or any of its committees, or anything revealed as a
result of anything that they have said in, produced before or submitted
to the NA or any of its committees.68 Given that the Constitution
establishes a constitutional democracy and entrusts the judiciary with
the power to enforce the Constitution, these privileges do not preclude
the judiciary from enquiring into whether the procedures or limitations
adopted by Parliament in this regard comply with the various provisions
of the Constitution.
In South Africa, parliamentary privilege came under the spotlight
for the first time in Speaker of the National Assembly v De Lille MP and
Another.69 In this case, Ms Patricia de Lille, who was a member of an
opposition party in the National Assembly, stated during a debate that
12 members of the governing party, whom she identified, had been
spies for the apartheid government. Following objections from
members of the governing party, the Speaker ruled that Ms De Lille’s
statements were ‘unparliamentary’ and ordered her to withdraw her
remarks, which she did.70
Despite the fact that Ms De Lille withdrew her remarks, the National
Assembly adopted a motion appointing an ad hoc committee to
investigate and make recommendations concerning her conduct. This
ad hoc committee found that her remarks were objectionable and
unjustified and recommended that not only should she be directed to
apologise, but also that she should be suspended for 15 parliamentary
working days.71 This recommendation was then forwarded to and
accepted by the National Assembly.72
After Ms De Lille was suspended, she applied to the Western Cape
High Court for an order setting aside the decision of the National
Assembly.73 In response, the Speaker argued that the NA had exercised
its authority to control its own affairs and that the exercise of this power
was not subject to judicial review. The Speaker based this argument
partly on section 5 of the Powers and Privileges of Parliament Act74
which provides that a court shall stay proceedings before it if the
Speaker issues a certificate to the effect that the matter in question is
one which concerns the privilege of Parliament. The High Court
rejected this argument and found in favour of Ms De Lille.
In arriving at this decision, the High Court held that, under a
supreme Constitution, the exercise of parliamentary privilege is subject
to judicial review. The Court stated in this respect that:
[t]he National Assembly is subject to the supremacy of the Constitution. It is an
organ of state and therefore it is bound by the Bill of Rights. All its decisions
and acts are subject to the Constitution and the Bill of Rights. Parliament can
no longer claim supreme power subject to limitations imposed by the
Constitution. It is subject in all respects to the provisions of our Constitution. It
has only those powers vested in it by the Constitution expressly or by necessary
implication or by other statutes which are not in conflict with the Constitution.
It follows therefore that Parliament may not confer on itself or on any of its
constituent parts, including the National Assembly, any powers not conferred
on them by the Constitution expressly or by necessary implication.75

This meant, the Court stated further, that:

The nature and exercise of parliamentary privilege must be consonant with the
Constitution. The exercise of parliamentary privilege, which is clearly a
constitutional power, is not immune from judicial review. If a parliamentary
privilege is exercised in breach of constitutional provisions, redress may be
sought by an aggrieved party from law courts …76

After making these points, the High Court went on to find that Ms De
Lille’s suspension unjustifiably infringed her constitutional rights to
freedom of expression (section 16), administrative justice (section 33)
and access to courts (section 34). It thus set her suspension aside.77
The Supreme Court of Appeal upheld the decision of the Western
Cape High Court, although on slightly narrower grounds.78 Like the
High Court, the Supreme Court of Appeal held that the decision to
suspend Ms De Lille, not for disrupting or obstructing the business of
the NA, but simply for something she said in the NA clearly inhibited
the privilege of freedom of speech guaranteed in section 58(1) of the
Constitution.79 Although section 58(2) states that other privileges and
immunities of the NA may be prescribed by national legislation such as
the Powers and Privileges of Parliament Act,80 it must not be interpreted
to detract from the privilege guaranteed in section 58(1).
What section 58(2) does do is authorise the adoption of national
legislation which will itself clearly and specifically articulate the
‘privileges and the immunities’ of the NA which affect the specific
guarantee of free speech for members in the NA. There was furthermore
nothing in the ‘rules and orders’ of the NA which qualified in any
relevant way the right to freedom of speech in the NA guaranteed by
section 58(1). Further, there is no constitutional authority for the NA to
punish any member via suspension in this context.81 As ‘the right of free
speech in the Assembly protected by section 58(1) is a fundamental
right crucial to representative government in a democratic society …
[i]ts tenor and spirit must conform to all other provisions of the
Constitution relevant to the conduct of proceedings in Parliament’.82 The
NA therefore had no constitutional authority to suspend Ms De Lille.83
The Rules of the National Assembly 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 twenty parliamentary working
days.84
The important role that the privilege of freedom of speech plays in
South Africa’s democracy and the weight that was attached to it by the
Supreme Court of Appeal in De Lille was confirmed by the
Constitutional Court in its subsequent judgment Democratic Alliance v
Speaker of the National Assembly and Others.85
In this case, President Zuma delivered the 2015 State of the National
Address to a joint sitting of both Houses of Parliament. During his
address, members of the Economic Freedom Fighters (EFF)
continuously interrupted President Zuma by asking him when he
intended to repay public money spent on non-security upgrades to his
private residence in Nkandla. As a result of these interruptions, the
Speaker asked the members of the EFF to leave the chamber. They,
however, refused to do so.
After the members of the EFF refused to obey the Speaker’s
instruction, she ordered the police to remove them forcibly in terms of
section 11 of the Powers, Privileges and Immunities of Parliament and
the Provincial Legislatures Act 4 of 2004 (PPI Act). This section provides
that a person who creates a disturbance in the precincts while
Parliament or a House or a committee is meeting may be arrested and
removed from the precincts on the orders of the Speaker or the
Chairperson of the National Council of Provinces.
Following the forced removal of the members of the EFF, the
Democratic Alliance applied to the Western Cape High Court for an
order declaring section 11 of the PPI Act to be unconstitutional and
invalid on the ground that it infringed the parliamentary privilege of
freedom of speech guaranteed in section 58(1)(a) of the Constitution.
After the High Court granted the order, it was referred to the
Constitutional Court for confirmation in terms of section 172(2) of the
Constitution. The Constitutional Court confirmed that section 11 was
unconstitutional and invalid.
In arriving at this decision, the Constitutional Court began by setting
out the purpose underlying the parliamentary privilege of freedom of
speech. In this respect, the Court held that its purpose is to promote the
pluralistic nature of Parliament by giving every member a right to
participate fully and meaningfully in the decision-making processes of
Parliament. By its very nature Parliament is a deliberative body. Debate
is key to the performance of its functions. In order for the debates and
deliberations of Parliament to be meaningful, it is important that the
individual members feel free to participate without the threat of being
arrested or imprisoned or sued.86
Although the parliamentary privilege of freedom of speech is a
crucial guarantee, the Constitutional Court held further, this does not
mean that it is absolute. Section 58(1) expressly states it can be limited
in terms of the rules and orders of the National Assembly. A member,
for example, is not entitled to exercise this privilege in a manner that
disrupts the proceedings of the National Assembly or unreasonably
impairs its ability to conduct its business in an orderly manner. The
National Assembly, therefore, may exclude a member who engages in
this sort of behaviour.87
After making these points, the Constitutional Court turned to focus
on section 11 of the PPI Act itself. In this respect, it held that even
though section 11 refers to ‘persons’ and not expressly to members of
the National Assembly, the word ‘person’ is wide enough to include
members of the National Assembly. This means that section 11 does
give the Speaker or the Chairperson the power to order the arrest or
removal of a member of the National Assembly or the NCOP who is
creating a disturbance.88
Given that section 11 of the Act applies only if a member was
creating a disturbance, it was important to define this concept. In this
respect, the Constitutional Court held that the concept of a disturbance
should not be interpreted broadly. This is because a broad
interpretation would include conduct that is protected by the
parliamentary privilege of freedom of speech, for example conduct that
annoys and tests the patience of the presiding officers or other
Members of Parliament. If this sort of conduct was included in the
concept of a disturbance, however, section 11 would clearly infringe the
parliamentary privilege and would be unconstitutional and invalid.89
The concept of a disturbance, therefore, had to be interpreted
narrowly to mean an interference that prevents Parliament from
conducting its business, with little possibility of resumption of business
within a reasonable period of time. Despite defining the concept of a
disturbance in this narrow manner, however, the Constitutional Court
went on to find that section 11 still infringed the parliamentary privilege
of freedom of speech. This is because section 11 had to be read with
sections 7 and 27 of the PPI Act which provided that creating or
participating in a disturbance was also a criminal offence and this had a
chilling effect on the parliamentary privilege of freedom of speech.90
Apart from the fact that section 11 of the PPI Act had a chilling effect
on the parliamentary privilege of freedom of speech, the Constitutional
Court found that it was unconstitutional for another reason as well,
namely that section 58(1) of the Constitution expressly provided that
the parliamentary privilege of freedom of speech could be limited only
by the internal rules and orders of Parliament and not by an Act of
Parliament. The reason for this is that when Parliament makes its rules
and order, it acts by itself. However, when Parliament makes law, it acts
with the executive branch of government.91
 The difficulty with allowing the parliamentary freedom of speech to
be limited by an Act of Parliament, therefore, is that it would require
another branch of the state, namely the executive, to participate in a
process that the Constitution expressly states falls into the exclusive
domain of Parliament. The process of making rules and order, therefore,
is required to be a wholly internal one. In addition, at a practical level
the making of rules and orders by Parliament alone will inevitably be a
more streamlined exercise than the cumbersome process of passing
legislation.92

Parliamentary privilege aimed at ensuring

robust discussion
In Democratic Alliance v Speaker of the National
Assembly and Others, the Constitutional Court
emphasised that parliamentary privilege of MPs
extends to conduct ‘that annoys and tests the patience
of the presiding officer’.
Robustness, heatedness and standing one’s ground inhere in the
nature of parliamentary debate … In the heat of a debate one
must expect that – from time to time – a member’s contributions
will not come to a screeching, mechanical halt once the presiding
officer has ruled that the member desist from further debate on a
subject.93

A columnist (and co-editor of this book) commented

as follows on this principle:94
While the rules require an MP to retract insults directed at fellow
members, no MP can be asked to leave the chamber merely
because the MP has chosen to display his or her lack of wit and
intelligence by shouting inane insults at opponents. (If I had my
way, the rules of Parliament would allow MPs to insult opponents,
but only if the insults are witty and intelligent – which would
silence about 98% of the members of Parliament for ever.)

But the Constitution does allow Parliament to make rules to limit

the freedom of expression of MPs – as long as such rules do not
deprive free speech of its essential content. In Democratic
Alliance v Speaker of the National Assembly the Constitutional
 Court affirmed that the privilege contained in ss 58(1)(a)[17]
and 71(1)(a) can ‘never go so far as to give members a licence
so to disrupt the proceedings of Parliament that it may be
hamstrung and incapacitated from conducting its business’ and
continued:

This would detract from the very raison d’être of Parliament …

There can be no doubt that this authority [contained in s
57(1)] is wide enough to enable the Assembly to maintain
internal order and discipline in its proceedings by means
which it considers appropriate for this purpose. This would,
for example, include the power to exclude from the Assembly
for temporary periods any member who is disrupting or
obstructing its proceedings or impairing unreasonably its
ability to conduct its business in an orderly or regular manner
acceptable in a democratic society. Without some such
internal mechanism of control and discipline, the Assembly
would be impotent to maintain effective discipline and order
during debates.95

The heart of the matter is that robust discussion in

Parliament is essential and requires wide protection for
MPs to say what they believe to be important. But
when the behaviour of MPs reduces the possibilities of
robust debate, rules can be imposed to regulate
behaviour of MPs to protect the freedom of expression
of fellow MPs. In evaluating the reasonableness of
such rules, one will have to ask whether the correct
balance was struck between protecting the freedom of
expression of MPs on the one hand, and protecting the
ability of Parliament to function properly on the other.

4.3.4 Public involvement in the legislative and other

processes of the National Assembly and the National
Council of Provinces
As we have seen, the South African Constitution establishes a
democratic system of government with both representative and
participatory elements. Part of the participatory aspect of democracy is
the requirement that the NA and the NCOP should facilitate public
involvement in the legislative and other processes of Parliament.96
Parliament, therefore, cannot pass legislation or engage in other
important processes without considering the need to facilitate some
form of public participation. Democracy can only function optimally if
members of the public are informed about the activities of Parliament
and if they are provided with an opportunity to get involved in some
way or another in those activities. To this end, Parliament has taken
steps to make its bodies and processes more accessible to the public, to
build its profile as a key institution of democracy and to mobilise the
media to provide information to the public about Parliament.97
In the negotiations leading to the establishment of the 1996
Constitution, it was clear that South Africa’s democracy would
emphasise active participation by the citizenry.98 The Reconstruction
and Development Programme, which was the lynchpin of government
policy in the first few years after the advent of democracy, captured this
new openness, stating:
Democracy for ordinary citizens must not end with formal rights and periodic
one-person, one-vote elections. Without undermining the authority and
responsibilities of elected representative bodies (Parliament, provincial
legislatures, local government) the democratic order we envisage must foster a
wide range of institutions of participatory democracy in partnership with civil
society on the basis of informed and empowered citizens and facilitate direct
democracy … social movements and community based organisations are a
major asset in the effort to democratize and develop our society.99

Participatory democracy simply means that individuals or institutions

must be given an opportunity to take part in the making of decisions
that affect them.100 As such, public participation is a voluntary activity
by which members of the public, directly or indirectly, engage with
members of the legislature to provide input to the legislature during the
law-making process.101 The essence of public participation can be
distilled by focusing on the various strategies that are the most
important measures for public involvement in the legislative process.
These include but are not limited to the following:
• Lobbying is used by organised groups in civil society to present well-
reasoned arguments to targeted decision makers which may include
detailed written representations outlining the group’s views on a
particular issue.
• Members of the public can raise issues at the constituency offices of
their elected representatives, who then raise these issues in the
legislature on their behalf.
• Petitions allow individuals or groups to raise issues in a formal way
without having to go through a particular member of the legislature.
• Public hearings, which are normally convened by standing
committees, afford the public the opportunity to make a written or
oral submission on any matter for which a public hearing has been
convened.102

In several cases103 the Constitutional Court affirmed the principle that,

in certain circumstances, where Parliament failed to take reasonable
steps to facilitate public involvement in the law-making process, it
would have failed to comply with section 59(1) or section 72(1) of the
Constitution respectively,104 and any law enacted in such a procedurally
flawed way would then be null and void and of no effect.105 The leading
case on this point is the 2006 case of Doctors for Life International v
Speaker of the National Assembly and Others.106 This case dealt with the
enactment by Parliament of four health statutes, among others, relating
to the choice on termination of pregnancies. The applicants complained
that during the legislative process, the NCOP and the provincial
legislatures did not comply with their constitutional obligations to
facilitate public involvement as required by section 72(1)(a) and 118(1)
(a) respectively. Ngcobo J (for the majority) stated:
In the overall scheme of our Constitution, the representative and participatory
elements of our democracy should not be seen as being in tension with each
other. They must be seen as mutually supportive. General elections, the
foundation of representative democracy, would be meaningless without
massive participation by the voters. The participation by the public on a
continuous basis provides vitality to the functioning of representative
democracy. It encourages citizens of the country to be actively involved in
public affairs, identify themselves with the institutions of government and
become familiar with the laws as they are made. It enhances the civic dignity of
 those who participate by enabling their voices to be heard and taken account
of. It promotes a spirit of democratic and pluralistic accommodation
calculated to produce laws that are likely to be widely accepted and effective in
practice. It strengthens the legitimacy of legislation in the eyes of the people.
Finally, because of its open and public character it acts as a counterweight to
secret lobbying and influence peddling. Participatory democracy is of special
importance to those who are relatively disempowered in a country like ours
where great disparities of wealth and influence exist.107

The democratic government that is contemplated in the Constitution is

thus both representative and participatory as discussed in chapter 2 of
this book. It is also one which is accountable, responsive and
transparent, and makes provision for the public to participate in the
law-making process.108 ‘Our constitutional framework requires the
achievement of a balanced relationship between representative and
participatory elements in our democracy.’ 109 Although ‘the legislature
will have considerable discretion in determining how best to achieve
this balanced relationship’,110 this discretion is not unfettered. What is
required will vary from case to case but the test will be whether the
legislature had acted reasonably or not.111 The Court stated that
‘reasonableness is an objective standard which is sensitive to the facts
and circumstances of a particular case’.112 In other words, it is context
specific. The factors that will be used to determine reasonableness are
as follows: 113
• ‘The nature and importance of the legislation and the intensity of its
impact on the public’.
• What is practically possible, with reference to time and expense,
which relate to the efficiency of the law-making process. The Court
noted, however, that ‘the saving of money and time in itself does not
justify inadequate opportunities for public involvement’.
• What Parliament itself considered ‘to be appropriate public
involvement in the light of the legislation’s content, importance and
urgency’.

This means Parliament has a duty, first, ‘to provide meaningful

opportunities for public participation in the law-making process’ and,
second, ‘to take measures to ensure that people have the ability to take
advantage of the opportunities provided’.114 Parliament has a positive
duty to take practical steps to facilitate public involvement for everyone
from all spheres of life regardless of their socio-economic
circumstances. ‘They must provide notice of and information about the
legislation under consideration and the opportunities for participation
that are available’115 to ensure citizens have an opportunity for effective
participation in the process.
The importance of public participation is also in line with
international obligations which are entrenched in both articles 19 and
25 of the International Covenant on Civil and Political Rights (ICCPR)116.
The two provisions guarantee the freedom of expression and the
political right which are designed to affirm the general right to partake
in the conducting of public affairs and a more specific rights to vote.117
The domestication of these provisions was correctly captured in Doctors
for Life as the court simply held:
this is reflected in the very nature of our constitutional democracy. The
international law right to political participation reflects a shared notion that a
nation’s sovereign authority is one that belongs to its citizens, who ‘themselves
should participate in government – though their participation may vary in
degree’.118

The role of voters in the law-making process

In a minority decision in the Doctors for Life case,
Yacoob J expressed a different understanding of the
nature of the democracy established by the South
African Constitution, focusing on the importance of
political parties and the role of elected representatives
in Parliament.119 According to this view, MPs represent
the people because they are chosen by the people.
When MPs make decisions, therefore, they are not
making decisions in their own interests but rather in
the interests of the people. The decisions made by
Parliament are not simply the decisions of the MPs,
but rather the decisions of the people:
In passing legislation or in conducting any other activity, members
of provincial legislatures and the National Assembly do not act on
their own whims but represent the people of this country. To
undermine these representatives is to undermine the political will
of the people and to negate their choice at free and fair elections.
Provincial representatives on the NCOP are mandated by the
provincial legislatures in their capacities as representatives of the
people. They are therefore mandated by the people in the same
way as the President is elected by the people when the National
Assembly elects him. Constitutionally speaking, it is the people of
our country who, through their elected representatives pass
laws.120

Apart from the correctness of the various technical

arguments raised by Justice Yacoob in favour of his
interpretation of the Constitution, a broader question
arises about the role of voters in the law-making
process. This question is whether the view taken by
Ngcobo J (for the majority) or that of Yacoob J (for the
minority) would produce a more effective and more
democratically accountable and responsive Parliament.
On the one hand, it may be argued that MPs who
belong to political parties, especially where the party
has a majority that is not immediately threatened, may
well be unresponsive to the views of the electorate and
may not, in fact, pass laws supported by the
electorate. On the other hand, it may be argued that
voters have the right to vote for a different party if they
disagree with the support of their preferred party for a
specific law. Voters only lend their vote to a political
party for five years at a time and can always vote for a
different party if the MPs representing their former
choice disappoint them. In this view, political parties
play a pivotal role in our democracy and should not be
undermined by placing constitutional obligations on
 their representatives to consult continually with voters
between elections.

4.4 The National Assembly

4.4.1 The composition of the National Assembly

As noted above, the Constitution establishes a bicameral Parliament.121
In terms of section 42(1) of the Constitution, Parliament consists of two
Houses, namely the National Assembly (NA) and the National Council
of Provinces (NCOP). The NA consists of between 350 and 400 members
elected through an electoral system based on a national common
voters’ roll that is designed to produce, in general, proportional
representation.122 Since the exact size of the NA has to be determined by
an Act of Parliament,123 Schedule 3 of the Electoral Act 124 has fixed this
number at 400. Members of the NA are elected on the basis of ‘universal
adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability,
responsiveness and openness’.125
As we have seen, political parties play an important role in decisions
about who may serve as a legislator in the NA. The manner in which
decisions are made about how the millions of votes cast by voters are
translated into seats for each political party in the legislature (and the
role played by political parties in this process) is closely related to the
electoral system adopted in a country. There are various forms of
potential electoral systems through which citizens of a country can
exercise their right to vote for political representatives.126 According to
Currie and De Waal:
[a]n electoral system sets out the rules for electing the political representatives.
It consists of a body of rules concerning such matters as the franchise, the
method of voting, the frequency of elections, the manner in which the number
of votes is translated into the number of representatives [or seats] in the
legislature, the qualification and nomination of candidates, and the
determination and declaration of the results of an election.127
4.4.2 The party proportional representation electoral system
Prior to the judgment of the Constitutional Court in New Nation
Movement NPC and Others v President of the Republic of South Africa
and Others,128 members of the NA were elected in terms of a party
proportional representation electoral system.129 This system required
each political party before an election to nominate a list of candidates,
ranking them in order of preference. Parties submitted their lists to the
Electoral Commission when they registered to take part in the election.
Voters voted for a political party and not for individual candidates.130 A
political party would then be allocated the number of seats in the NA
equal to the percentage of votes it received in the election. For example,
if a party obtained 50% of the votes, it would be allocated 200 of the 400
seats in the NA and the first 200 candidates on the party’s electoral list
would become members of the NA. This meant that the higher up on a
political party’s electoral list a person was ranked, the more likely it was
that he or she would be elected to the NA.
Decisions on who was ranked where on a political party’s electoral
list could be made either democratically by the members of the party or
undemocratically by the party leaders alone.131 Political parties had
some discretion in internal decision-making and processes as political
parties were ‘best placed to determine how members would participate
in internal activities’.132 The Constitution of each political party regulated
how such decisions were taken. However, political parties could not
adopt constitutions that were inconsistent with section 19 of the
Constitution.133 If the Constitution of a political party failed to provide
for the free participation of members in its activities, that Constitution
could be declared invalid.134 Regardless of how political parties
compiled their electoral lists, there was no doubt that ambitious
members of a political party manoeuvred to ensure that they were
placed high up on such an electoral list.
The party proportional representation electoral system has both
advantages and disadvantages.135 Advantages include the fact that it
reflects the wishes of the voters more accurately than most other
electoral systems. This is because the percentage of seats allocated to
each party is proportional to the percentage of the votes cast for it and
there are very few wasted votes.136 This made it much easier for smaller
parties to be represented in the NA. In addition, the proportional
representation electoral system also eliminates the possibility of the
artificial drawing of constituency boundaries – so-called
gerrymandering137 – to dilute political support in certain constituencies.
Apart from the advantages set out above, party proportional
representation electoral systems usually produce more inclusive
legislatures and ensure a relatively high representation for marginalised
or previously discriminated groups such as women as well as for
minorities. Following the 2019 general election, for example, women
comprised approximately 45% of the members of the National
Assembly. This is a significant increase over the 2014 election when
women comprised only 40% of the National Assembly. In fact, this is the
highest percentage of women members since the transition to
democracy in 1994.138 A further advantage is the fact that the system
limits ‘pork-barrel’ politics. Pork-barrel politics is a system of politics in
which members of the legislature attempt to buy the support of voters
in their constituencies by pressuring the legislature and the executive to
spend public money in their constituencies on projects such as clinics,
roads, schools and so on irrespective of whether their constituents
actually need these goods and services or not. In a party proportional
representation electoral system, the members of the legislature do not
represent constituencies and, consequently, will be less tempted to
engage in pork-barrel politics. Finally, the system is also said to be
simple and easy to administer.

Table 4.1 Women in politics in South Africa139

Table 4.2 Representation of political parties in Parliament in 2019140
Party Number of seats % of total

1. ANC 230 57,5%

2. DA 84 20,77%

3. EFF 44 10,80%

4. IFP 14 3,38%

5. VF PLUS 10 2,38%

6. ACDP 4 0,84%

7. UDM 2 0,45%

8. NFP 2 0,35%

9. ATM 2 0,44%

10. GOOD 2 0,40%

11. AIC 2 0,28%

12. COPE 1 0,27%

13. PAC 1 0,19%

14. ALJAMA 1 0,18%

However, there are also major disadvantages associated with the

system:
• First, a party proportional representation electoral system does not
create a strong link between voters and their elected representatives.
This has the potential to lead to a lack of responsiveness to the
concerns of voters by elected MPs. In this system the political party
as a whole rather than individual MPs has to account to voters at the
next election. Individual MPs do not lose their seats because of the
anger of voters but because they have lost support within their
political party.141
• Second, the party proportional representation electoral system
potentially gives much power to the leaders of a party who may be
able to determine or influence who appears on electoral lists and
where on those lists they are ranked. This means that the leaders of
political parties may have disproportionate influence over the way
in which individual MPs behave.
• Third, the system potentially produces a less effective and stable
government, especially where one political party is not dominant.
This is because a single party may not gain an overall majority in
Parliament and will then have to form a coalition government with
other parties. A coalition government may find it difficult to agree
on all aspects of a joint programme of action.142 This disadvantage
has manifested itself at the local government level in South Africa.
Following the 2016 local government elections, the Democratic
Alliance formed either coalition governments (involving a formal
agreement on a policy platform between a group of parties) or
minority governments (involving no formal agreement on a policy
platform, but an agreement to support the minority government on
a case-by-case basis) in three metropolitan municipalities, namely
Tshwane, Johannesburg and Nelson Mandela Bay. As a result of
disagreements among the participating parties, all three coalitions
 collapsed and the Democratic Alliance ceased being the ruling party
in Johannesburg and Nelson Mandela Bay.

4.4.3 New Nation Movement NPC v President of the

Republic of South Africa
Despite the fact that the party proportional representation electoral
system had been used in every national and provincial election since
1994, in New Nation Movement NPC and Others v President of the
Republic of South Africa and Others, in 2020, the Constitutional Court
found that it was unconstitutional and invalid because it unjustifiably
infringed section 19(3)(b) of the Constitution by preventing adult
citizens from standing for public office as independent candidates.
The facts of this case were as follows. The applicants applied to the
High Court in Cape Town for an order declaring section 57A of,
Schedule 1A to, the Electoral Act 73 of 1998 to be unconstitutional and
invalid on the ground that they infringed section 19(3)(b) of the
Constitution, which grants every adult citizen the right ‘to stand for
public office and if elected, to hold office’. These provisions infringed
section 19(3)(b), the applicants argued, because they established a
party proportional representation electoral system in terms of which
adult citizens could be elected to the National Assembly and the
provincial legislatures only as members of political parties and not as
independent candidates. After the High Court dismissed the
application, the applicants appealed directly to the Constitutional
Court. A majority of the Constitutional Court upheld the appeal and
found that section 57A read together with Schedule 1A were
unconstitutional and invalid.
The Constitutional Court pointed out that the key question it had to
answer was whether the right to stand for public office in section 19(3)
(b) should be interpreted narrowly as a right to stand for public office
only as a member of a political party or whether it should be interpreted
broadly as a right to stand for public office either as a member of a
political party or as an independent candidate.143 The Court held that it
should be interpreted broadly for a number of reasons. Among the most
important of these were the following. First, that the narrow
interpretation conflicted with the right to make political choices
guaranteed in section 19(1) of the Constitution; 144 second, that the
narrow interpretation conflicted with the right to freedom of association
guaranteed in section 18 of the Constitution;145 and finally, that the
broad interpretation did not conflict with various other provisions of
the Constitution and especially section 157(2)(a), which provides that
national legislation may prescribe an exclusively party proportional
representation electoral system at the local government level.146
In so far as the first ground was concerned, the Constitutional Court
pointed out that section 19(1) provides that ‘[e]very citizen is free to
make political choices, which includes the right (a) to form a political
party; (b) to participate in the activities of, or recruit members for, a
political party; and (c) to campaign from a political party or cause’.
Although the rights itemised in paragraphs (a) to (c) all refer to political
parties, the Court held, this does not mean that the general right ‘to
make political choices’ is limited to these itemised rights. Instead, the
general right goes further and includes, for example, the right not to
form or join political parties.147 Given that the general right in section
19(1) goes further than the itemised rights in paragraphs (a) to (c), the
Court held, it follows that a narrow interpretation of section 19(3)(b)
(that is, one that requires adult citizens to exercise their right to stand
for office only as members of political parties) conflicts with the broad
approach adopted in section 19(1). However, this approach to
interpreting the Constitution is not permissible. The provisions of the
Constitution must be interpreted in a manner that harmonises them
and not in a manner that brings them into conflict.148 The simplest way
of achieving this goal, the Court concluded, would be to adopt the
broad, rather than the narrow interpretation of section 19(3)(b).149
In so far as the second ground was concerned, the Constitutional
Court pointed out that section 18 provides that ‘[e]veryone has the right
to freedom of association’. Apart from conferring a positive right on
every individual to form an association with whomsoever he or she
wishes for whatever purpose, the Court held, in other comparable
jurisdictions the courts have held that it also confers a negative right on
individuals not to associate. In Young, James and Webster v The United
Kingdom,150 for example, the European Court of Human Rights held that
compelling individuals to associate strikes at the very substance of the
freedom of association151 and in Tanganyika Law Society v United
Republic of Tanzania; Mtikila v United Republic of Tanzania152 the
African Court of Human and Peoples’ Rights held that the freedom of
association is negated if individuals are forced to associate with one
another and, consequently, that the freedom not to associate is implied
in the freedom to associate.153 A similar approach was followed at a
national level by the Canadian Supreme Court and the German Federal
Constitutional Court in various judgments.154
Apart from the reasons given by these international and foreign
courts, the Constitutional Court held, there are other reasons for
recognising a negative right not to associate, especially when it comes
to political parties. One of these is that even if it is cheap and easy to
establish a political party, membership of such a party usually comes
with obligations and responsibilities that some individuals may find
unacceptable.155 For example, ‘[i]t may be too trammeling to those who
are averse to control’, or ‘[i]t may be overly restrictive to the free spirited’
or ‘[i]t may be censoring to those who are loath to be straight-jacketed
by predetermined party positions’. It may also ‘detract from the element
of self; the idea of a free self; a person’s idea of freedom’.156 Being
coerced to join or form a political party, the Court held further, also
infringes the right to dignity and freedom of conscience. This is because
coercion implicates the right to dignity157 and a person might in good
conscience be opposed to party politics and party discipline.158 Besides
these rational or sound reasons for not wanting to form or join a
political party, an individual may also have irrational or unfounded
reasons for not wanting to do so and these reasons are also protected by
section 18.159
Given that the right to associate includes a negative right not to
associate, the Constitutional Court concluded, it follows that the narrow
interpretation of section 19(3)(b) of the Constitution (that is, one that
requires adult citizens to exercise their right to stand for office only as
members of political parties) conflicts with the right to associate in
section 18 in much the same way that it conflicts with the right to make
political choices in section 19(1) and, therefore, is equally
impermissible. The simplest way to avoid this conflict would be to adopt
the broad, rather than the narrow interpretation of section 19(3)(b).160
In so far as the third ground was concerned, the Constitutional
Court rejected the respondents’ argument that section 157(2)(a) of the
Constitution expressly provides that national legislation may prescribe
an exclusively party proportional representation electoral system at the
local government level and thus explicitly allows an electoral system
that prevents independent candidates from running for office. Given
that section 157(2)(a) authorises the adoption of an electoral system
that prevents adult citizens from standing for office as independent
candidates, the respondents argued further, it conflicts with the broad
interpretation of section 19(3)(b) which confers a right on adult citizens
to stand for public office as independent candidates. In order to avoid
this conflict, therefore, the broad interpretation should be rejected and
the narrow interpretation adopted.161 While it is true that section 157(2)
(a) does conflict with the broad interpretation of section 19(3)(b), the
Court held, it is possible to resolve this conflict, not by rejecting the
broad interpretation, but rather by classifying section 157(2)(a) as an
internal modifier that limits the scope and ambit of the right to stand for
public office in very narrow circumstances, namely elections for
municipal councils. There is, consequently, no conflict between section
157(2)(a) and the broad interpretation of section 19(3)(b) as it applies to
elections for the National Assembly and provincial legislatures. ‘Section
19, which is the primary source of people’s political rights’, the Court
concluded, ‘continues to be the fundamental norm on them, not
section 157(2)(a), which is tailor-made for municipal elections. The
normative force of section 19 continues to apply in every instance
where the Constitution has not specified a system of representation
different to what section 19 requires’.162
After finding that section 57A read together with Schedule 1A of the
Electoral Act did infringe section 19(3)(b) for the reasons set out above,
the Constitutional Court turned to consider whether this infringement
could be justified. It held in this respect, that the respondents did not
make any attempt to justify the limitation and the Court itself could not
identify any arguments justifying the limitation. This meant that the
Electoral Act had to be declared unconstitutional and invalid to the
extent that it prevented adult citizens from standing for political office
as independent candidates.163 However, the Court held further, this
declaration of invalidity would operate only prospectively and not
retrospectively.164 In addition, it would also be suspended for a period of
24 months in order to provide Parliament with enough time to remedy
the defects in the Electoral Act.165

Remedying the defect in the Electoral Act

The majority of the Constitutional Court found that the
Electoral Act was unconstitutional to the extent that it
did not permit adult citizens to stand for election to the
National Assembly and the provincial legislatures as
independent candidates. That is the defect that
needed to be cured within two years. The Court,
however, did not prescribe how this is to be done. This
is because in terms of the separation of powers
doctrine the responsibility for doing so lies with
Parliament.
There are a number of options open to Parliament.
For example, Parliament could fundamentally change
our electoral law and determine a defined number of
constituencies to be contested by adult citizens either
as individuals or members of political parties while
retaining the proportional element of the system. In
terms of this approach, it could decide that 200 of the
400 seats in the National Assembly should be
constituency based and the remaining 200 seats
should be allocated to persons nominated by the
political parties in proportion to the votes that they
receive. Alternatively, Parliament could simply tweak
the current system and allow individual adult citizens
to contest national and provincial elections alongside
political parties.
4.4.4 The right to vote and the Electoral Commission
Section19(3) of the Constitution guarantees the right of every citizen to
vote. Children are not allowed to vote and in terms of the Constitution
only citizens who are above the age of 18 years qualify to vote.166 In
giving effect to the essence of the right to vote, the Constitution
established the Electoral Commission (also colloquially called the
Independent Electoral Commission) in terms of section 181(1)(f). The
Commission is responsible for managing ‘elections of national,
provincial and municipal legislative bodies in accordance with national
legislation’, must ‘ensure that those elections are free and fair’, and must,
in as a short a time as is reasonably possible, ‘declare the results of those
elections within a period that must be prescribed by national
legislation’.167
The independence of the Electoral Commission is explicitly
guaranteed in the Constitution.168 The Constitutional Court pointed out
in Independent Electoral Commission v Langeberg Municipality169 that
although the Electoral Commission is an organ of state as defined in
section 239 of the Constitution, the requirement that it be independent
from the government means that it cannot be said to be a department
or an administration within the national sphere of government over
which Cabinet exercises authority. The Electoral Commission – while a
state institution – is not part of the government as independence of the
institution refers to independence from the government.170
As is the case with other Chapter 9 bodies – discussed in Chapter 7 –
the independence of the Electoral Commission requires, first, financial
independence. As the Constitutional Court stated in New National
Party v Government of the Republic of South Africa and Others, ‘[t]his
implies the ability to have access to funds reasonably required to enable
the Commission to discharge the functions it is obliged to perform
under the Constitution and the Electoral Commission Act’.171 This
requires Parliament to consider what is reasonably required by the
Commission and deal with requests for funding rationally in the light of
other national interests. Second, the Commission needs to enjoy
administrative independence. This implies that there will be no control
over those matters directly connected with the functions which the
Commission has to perform under the Constitution and the Electoral
Act. This means that the Department of Home Affairs cannot tell the
Commission how to conduct registration and whom to employ. In
short, the Commission cannot be part of the national government in
any manner.172
In August and Another v Electoral Commission and Others,173 the
Constitutional Court pointed out that the right to vote in section 19(2) of
the Constitution is unqualified. It therefore cannot be taken away from
any citizen arbitrarily or in a way that is not reasonable and justifiable in
an open and democratic society.174 Sachs J declared that the vote of
each and every citizen is a ‘badge of dignity and of personhood. Quite
literally, it says that everybody counts’.175 The Court held that the right to
vote ‘by its very nature imposes positive obligations upon the legislature
and the executive … [and] … [t]his clearly imposes an affirmative
obligation on the Commission to take reasonable steps to ensure that
eligible voters are registered’.176 In the August case, the Court held that
by omitting to take appropriate steps to ensure that prisoners were able
to register and vote in the national election, the Commission had failed
to comply with its obligations. The importance of the right to vote was
reaffirmed in New National Party where Yacoob J stressed that the right
to vote is fundamental to democracy and requires proper arrangements
to be made for its effective exercise.177

Limitations on the constitutional right to vote

As a result of the Constitutional Court judgment in
August, and shortly prior to the 2004 national
elections, Parliament amended the Electoral Act. As a
result of these amendments, prisoners who were
serving a sentence of imprisonment without the option
of a fine were prevented from registering as voters and
from voting while in prison.178 In other words, they were
effectively disenfranchised.
The constitutionality of this amendment was
challenged in Minister of Home Affairs v National
Institute for Crime Prevention and the Re-integration of
Offenders (NICRO) and Others.179 The main issue in
this case was whether the amendments to the
Electoral Act 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
of the right was to preserve the integrity of the voting
process.180 It was argued that voting at a polling
station entailed the use of mobile voting facilities or
special votes, both of which involved risks to the
integrity of the vote and required special measures to
counter these risks. The provision of these special
arrangements, it was argued, placed a strain on the
logistical and financial resources available to the
Electoral Commission.181 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.182 In
this regard, the Court indicated that:
[i]n the present case, however, it is not necessary to take this
issue further for the factual basis for the justification based on
cost and the lack of resources has not been established.
Arrangements for registering voters were made at all prisons to
accommodate unsentenced prisoners and those serving
sentences because they had not paid the fines imposed on them.
Mobile voting stations are to be provided on election day for
these prisoners to vote. There is nothing to suggest that
expanding these arrangements to include prisoners sentenced
without the option of a fine will in fact place an undue burden on
the resources of the Commission. Apart from asserting that it
would be costly to do so, no information as to the logistical
problems or estimates of the costs involved were provided by Mr
Gilder. The Commission abided by the decision of the Court. It
lodged affidavits to explain its attitude to the Court, and was
represented by counsel at the hearing. It did not place any
 information before the Court in regard to costs and logistics and
did not suggest that it would be unable to make the arrangements
necessary to enable all prisoners to vote.183

This judgment affirmed that while there may

conceivably be situations in which a person could be
deprived of his or her right to vote, such a limitation on
the right to vote would have to be justified by the state.
The state would have to show that the limitation was
narrowly tailored to achieve an important purpose.

The Constitutional Court also considered whether South Africans living

abroad have a right to vote. This was considered in Richter v The
Minister for Home Affairs and Others 184 and AParty and Another v The
Minister for Home Affairs and Others, Moloko and Others v The Minister
for Home Affairs and Another.185 The Court decided unanimously that
South Africans living abroad have a right to vote if they are registered.
The Court held that section 33 of the Electoral Act unfairly restricted the
right to cast special votes while abroad to a very narrow class of citizens.
This section was therefore declared unconstitutional and invalid.
The implication of this judgment for the elections which were to be
held in April 2009 was that all citizens who were at that time registered
voters, and who would be out of the country on the date of the elections,
would be allowed to vote in the national, but not provincial, elections.
This was ‘provided they give notice of their intention to do so, in terms
of the Election Regulations, on or before 27 March 2009 to the Chief
Electoral Officer and identify the embassy, high commission or
consulate where they intend to apply for the special vote’.186
Handing down the first of two separate judgments, O’Regan J held
that the right to vote had a symbolic and democratic value and those
who were registered should not be limited by unconstitutional and
invalid limitations in the Electoral Act.187 However, a second judgment
by Ngcobo J found that unregistered voters who were overseas could
not vote.188 This was due to the fact that the limitations of the right to
vote of South Africans living abroad, who did not fall within certain
categories, had been in effect since 2003 and the applicants had not
explained why they had challenged these limitations so late. According
to Ngcobo J:
… the applicants are the authors of their own misfortune; they created the
urgency. The registration provisions of the Electoral Act have been in place
since 2003. Voting by South African voters abroad in the 2004 elections was
regulated by the amendment which was introduced in 2003. The applicants
have known since then that they cannot vote. Their explanation for not
approaching a court much earlier is utterly unsatisfactory.189

The cases discussed above are an indication of the values of the new
dispensation in ensuring the role of the electorate in relation to the
corresponding responsibility of the state to create an environment that
is conducive for everyone to ensure the advancement of the ideals of
the new democratic order.

4.4.5 Eligibility for election to the National Assembly

Once elected, a member of the NA will normally serve for a full term of
five years until the next election.190 However, a person may lose
membership of the NA if that person is no longer eligible to be a
member of the NA. In terms of section 47 of the Constitution, a citizen
who is qualified to vote for the NA is eligible to be a member of the NA,
except for those citizens who are appointed by, or are in the service of,
the state and receive remuneration for that appointment or service,
other than:
• the President, Deputy President, Ministers and Deputy Ministers
• other office-bearers whose functions are compatible with the
functions of a member of the NA and have been declared
compatible with those functions by national legislation.

The following citizens are also not eligible to become or remain

members of the NA:
• permanent delegates to the NCOP or members of a provincial
legislature or a municipal council191
• unrehabilitated insolvents192
• anyone declared to be of unsound mind by a court of the Republic193
• anyone who, after the Constitution took effect, is convicted of an
offence and sentenced to more than 12 months’ imprisonment
without the option of a fine, either in the Republic, or outside the
Republic if the conduct constituting the offence would have been an
offence in the Republic.194

Moreover, a member of the NA who is absent from the NA without

permission in contravention of the Rules of the NA (presumably more
than 15 days),195 or ceases to be a member of the party that nominated
him or her,196 will also automatically lose his or her seat in the NA. The
fact that a member of the NA needs to remain a member of the political
party who nominated her means that NA members are beholden to
their political parties. If they cross the floor to another party or if they
are expelled from their party they lose their seat in the NA. This means
that the leaders of a political party have some power to control
members of the NA and to enforce party discipline.

4.4.6 Duration of the National Assembly, sittings and its

dissolution
The NA is elected for a term of five years.197 It will usually serve out this
five-year term, but there are at least two situations in which an election
could be held before the five-year term has elapsed:
• First, in terms of section 50(1) of the Constitution, the President
‘must dissolve the National Assembly if … the Assembly has adopted
a resolution to dissolve with a supporting vote of a majority of its
members; and three years have passed since the Assembly was
elected’. If this is done, ‘the President, by proclamation, must call
and set dates for an election, which must be held within 90 days of
the date the Assembly was dissolved’.198 This means that a majority
party in Parliament may strategically adopt such a resolution to
force a new national election to be held (without having to impose a
vote of no confidence in the government) in the last two years of
the life of the NA. They may wish to do so to ensure a political
 advantage for their party by timing the election to fall around a time
when the party is particularly popular, say, after the national soccer
team has won the African Cup of Nations tournament or after the
successful staging of the Soccer World Cup.
• Second, in terms of section 50(2), where there is a vacancy in the
Office of President because the President passed away, resigned or
was removed from office by the NA in terms of section 89 or 102, and
the NA then fails to elect a new President within 30 days after the
vacancy occurred, the Acting President must dissolve the NA and a
new election must be called within 90 days.199 This will occur in
cases where no one party commands a majority of seats in the NA,
the coalition of parties disintegrates and the parties cannot agree on
forming a new coalition. Where one party commands more than
50% of the seats in the NA, it will be able to enforce party discipline
to ensure that the majority party elects a new President before the
30-day period stipulated by the Constitution elapses.

After an election, the first sitting of the NA must take place not more
than 14 days after the election results are finalised on a date determined
by the Chief Justice.200 The President will be elected from among the
members elected to the NA at this sitting.201 At the same sitting, the NA
will also elect a Speaker and a Deputy Speaker from among its
members.202 The NA may otherwise determine the time and duration of
its other sittings and its recess periods.203 An exception is that the
President may summon the NA to an extraordinary sitting at any time to
conduct special business.204 Sittings of the NA are permitted at places
other than the seat of Parliament, which is currently in Cape Town, only
‘on the grounds of public interest, security or convenience, and if
provided for in the rules and orders of the Assembly’.205
The rules thus permit the NA to sit at a place other than the seat of
Parliament in Cape Town. These rules distinguish between two
situations: first, those in which a sitting must be held somewhere else
because of an emergency and, second, those in which a sitting may be
held somewhere else because it is convenient or in the public interest to
do so.206
 In so far as the first situation is concerned, NA Rule 43(1) provides
that the Speaker may, in an emergency or on the grounds of security,
direct that that the National Assembly sit at a place other than the seat
of Parliament in Cape Town or that a sitting of the National Assembly be
held, or resumed, in a different chamber within the precincts of
Parliament. Before issuing such a directive, however, the Speaker must
consult with the Leader of Government Business and the Chief Whips
or party representatives of each party represented in the National
Assembly.
In so far as the second situation is concerned, NA Rule 43(2)
provides that the National Assembly may, on the grounds of public
interest or convenience, resolve to sit at a place other than the seat of
Parliament in Cape Town. Apart from approving a change in venue,
however, such a resolution must also (a) identify the public interest or
convenience that is the reason for the change of venue and (b) approve
the change of venue to a specified place and for a specified period.

4.4.7 Powers and functioning of the National Assembly

The NA – unlike the NCOP, which represents the interests of the
separate provinces – is elected to represent the people of South Africa as
a whole. According to section 42(3) of the Constitution, the NA has four
main tasks:
• It elects the President.
• It serves as a national forum for public consideration of issues.
• It considers and passes legislation (along with the NCOP).
• It scrutinises and oversees executive action, holding the executive
accountable.

In exercising its legislative power, the NA may consider, pass, amend or

reject any legislation before the Assembly, and initiate or prepare
legislation, except money Bills.207 The NA must provide for mechanisms
to ensure that all executive organs of state in the national sphere of
government are accountable to it. The NA must also maintain oversight
of the exercise of national executive authority, including the
implementation of legislation, and any organ of state.208 We shall return
to the exercise of these powers below.209
Unless the Constitution specifically states otherwise, section 59 of
the Constitution lays down the quorums (the minimum number of
MPs) required for decisions of the NA. It distinguishes between Bills or
amendments to Bills (a Bill is a piece of draft legislation), on the one
hand, and ‘any other question[s]’ which may come before the NA for a
vote, on the other. When the NA takes a vote on a Bill, a majority of the
members (at least 201 members) of the NA must be present.210 When it
takes a vote on another question before the NA, however, at least one
third of the members (134 members) must be present.211 If there is no
prescribed quorum when a question is put for decision and if after an
interval of between five and fifteen minutes, during which time the bells
must be rung, there is still no quorum, the presiding officer (the Speaker
or Deputy Speaker) may suspend the proceedings or postpone the
decision of the question.212
Most questions before the NA are determined ‘by a majority of the
votes cast’ by the members present.213 In certain circumstances,
however, the quorum and voting requirements are set at a higher
threshold. For example, the NA can only remove the President from
office (impeachment) or amend provisions of the Constitution (other
than section 1) with a ‘supporting vote of at least two thirds of its
members’.214 An amendment to section 1 of the Constitution requires a
‘supporting vote of at least 75 per cent’ of the members of the NA.215
The member of the NA presiding at a meeting of the NA, usually the
Speaker or Deputy Speaker, has no deliberative vote, but is required to
cast a deciding vote ‘when there is an equal number of votes on each
side of a question’.216 The presiding member may cast a deliberative vote
when a matter requiring a two-thirds majority to pass is before the
NA.217 Under section 54 of the Constitution, ‘[t]he President, and any
member of the Cabinet or any Deputy Minister who is not a member of
the National Assembly, may, subject to the rules and orders of the
Assembly, attend and speak in the Assembly, but may not vote’.218 The
Constitution further requires the NA to provide for ‘mechanisms to
ensure that all executive organs of state in the national sphere of
government are accountable to it; and to maintain oversight of the
exercise of national executive authority, including the implementation
of legislation; and any organ of state’.219
As far as the practical functioning of the NA is concerned, three
important issues arise:
• First, under section 57(1)(a) and (b) of the Constitution, the NA
‘may (a) determine and control its internal arrangements,
proceedings and procedures; and (b) make rules and orders
concerning its business, with due regard to representative and
participatory democracy, accountability, transparency and public
involvement’. These powers of the NA are limited in the ways
discussed above.
• Second, the Speaker or, in his or her absence, the Deputy Speaker,
presides over the NA. The primary public role of the Speaker is to
preside over debates in the NA. The Speaker is expected to be above
party politics and to fulfil his or her role impartially, demonstrating
the kind of impartiality expected of a judge.220 The Speaker is
required to keep discipline in the NA and must rule on any
objections lodged by members against the conduct of other
members. The Speaker is also (jointly with the Chair of the NCOP)
the administrative head of Parliament. As the custodian of the rights
and privileges of its members, the Speaker furthermore acts as the
representative and spokesperson for the legislature and has the
power to give an undertaking on behalf of the NA.221 The Speaker
may not exercise his or her discretion ‘for the benefit of the Speaker’
or for the benefit of his or her party. The Speaker is thus required to
exercise any power to achieve the purpose for which that power
exists.222 The procedure in terms of which the voting right is allowed
to be exercised must brighten and enhance the prospects of the
purpose for which it was given being better served or advanced. In
the context of the Speaker having to decide whether to allow a secret
vote, the Constitutional Court stated in United Democratic
Movement v Speaker of the National Assembly and Others that: ‘the
power that vests in the Speaker … belongs to the people and must
 thus not be exercised arbitrarily or whimsically’.223 The Court also
affirmed that the Speaker carries the:
responsibility to balance party interests with those of the people. It is as
difficult and onerous a dual responsibility as it is for Members, perhaps even
more so, given the independence and impartiality the position requires. But
Parliament’s efficacy in its constitutional oversight of the Executive vitally
depends on the Speaker’s proper exercise of this enormous responsibility. The
Speaker must thus ensure that his or her decision strengthens that particular
tenet of our democracy and does not undermine it.224

• Third, members of the NA take part in public meetings of the NA

where they may ask questions of members of the Cabinet. The NA
also provides a platform for the President, members of Cabinet,
party leaders and MPs to make speeches. In addition, it is an arena
where the political parties debate the issues of the day.
• Finally, of course, members of the NA vote formally to pass
legislation. However, most of the serious work of the NA is done in
committees.

The role of the Speaker

The fact that the Speaker is expected to be impartial
gives rise to some difficult questions. One of these is
whether the Speaker should be allowed to be an active
member of his or her party and, especially, whether the
Speaker should be allowed to occupy a leadership
position in his or her party. This issue was considered
in Tlouamma and Others v Mbete, Speaker of the
National Assembly of the Parliament of the Republic of
South Africa and Another.225
In this case, three opposition parties in the
National Assembly, Agang, Cope and the UDM,
applied, inter alia, for an order to have the Speaker of
the National Assembly removed from office. They
based their application on the grounds that in the
Westminster tradition the Speaker is required to be
completely impartial and non-partisan both inside and
outside the legislature. This means that the Speaker
must not participate in the debates in the legislature
and she must not play an active role in party politics.
Unfortunately, they argued, the Speaker had not
acted in an impartial and neutral manner when she
exercised her powers inside the legislature. Instead,
she favoured her own party, namely the ANC. In
addition, they also argued, she had not acted in an
impartial manner outside the legislature. This is
because she continued to campaign for the ANC and
she occupied a very high position in the governing
party. This meant, the applicants concluded, that the
Speaker was not a fit and proper person to hold the
office of Speaker.
The Western Cape High Court rejected this
application. In arriving at this decision, the Court found
that in the United Kingdom, the person who is elected
as the Speaker of the House of Commons is expected
to stop participating in the activities of his or her party
and may not occupy a high office in that party.226
It was important to note, however, the Court held,
that simply because our system of parliamentary
government is modelled on the British system, it does
not mean that we have adopted all of the elements or
rules of that system. The role of the Speaker, therefore,
must be decided in terms of our Constitution and not
foreign law.227
Given that we have a proportional representation
system, rather than a constituency system, the
Speaker has to belong to one of the political parties
represented in the National Assembly. In addition, the
Rules of the National Assembly do not prohibit the
 Speaker from caucusing and canvassing for her party
outside the Assembly.228
Unlike the position of the Speaker in the USA, the
position of Speaker in South Africa is not inherently
partisan. This means that the Speaker must carry out
his or her functions in an impartial and neutral
manner. At the same time, however, the mere fact that
a person has been elected Speaker does not mean
that he or she must sever political-party ties as is the
case in the United Kingdom.229
To sum up, there is no constitutional or statutory
impediment to the Speaker occupying any leadership
position within her political party, or participating in the
activities of the political party. The Speaker is entitled
to remain as an office bearer of a political party,
participate in its activities and campaign for political
rights. Affiliation to a political party cannot in itself
point to a lack of objectivity and impartiality. The
Speaker’s membership of the ANC NEC did not render
her incapable or biased in performing her duties as
Speaker. Similarly, attending meetings of the ANC
caucus did not translate into a failure to conduct
duties impartially as the Speaker. Consequently, there
was no legal basis to find that the Speaker could not
continue to hold the position of Chairperson of the
National Executive Committee of the ANC as well as
that of Speaker.230

The establishment of committees is contemplated in section 57(2)(a)

and (b) of the Constitution and their number, jurisdiction, membership
and other details are fleshed out in the Rules of the Assembly.231 The
most important committees – the respective portfolio committees – are
those set up to process legislation emanating from each Cabinet
portfolio and to oversee the work done by the executive in each of these
portfolios.232 Section 57(2)(b) of the Constitution requires that the Rules
of the Assembly provide for ‘the participation in the proceedings of the
Assembly and its committees of minority parties represented in the
Assembly, in a manner consistent with democracy’. The Constitutional
Court has not yet given clear guidance on what this might entail.
However, a practice has developed in the NA that political parties are
entitled to be represented in committees in substantially the same
proportion as the proportion in which they are represented in the NA.233
The majority party in the NA will therefore usually have a majority on
each of the committees and will be able to outvote minority parties if
disagreements arise about the handling of a particular matter or
support for specific legislative provisions.
Political parties appoint the members of a committee to which they
are entitled and advise the Speaker accordingly.234 A committee must
elect one of its members as the chairperson of the committee. With the
exception of the Standing Committee on Public Accounts, which has
traditionally been chaired by a member of one of the opposition parties,
the chairperson will be a member of the majority party earmarked for
the position by the party leadership in the NA. The chairperson of a
committee can also be removed as chairperson if the party to which he
or she belongs deems it fit to do so. Members of a committee
representing a specific political party can also be removed or changed
by the political party that nominated the member. This means that the
leadership of a political party has considerable influence over
individual members of their party in the NA. Serving on some
committees is deemed to be more desirable than serving on others. As
the chairperson of a committee holds considerable power to arrange
the affairs of a committee, members may act in a manner that would
not detract from their chances of being allocated to desirable
committees or – in the case of a majority party – being appointed as
chairperson of a committee. As we shall see, committees of the NA have
wide-ranging powers to assist them in fulfilling their various tasks,
including the power to summons any person to appear before them.

4.5 The National Council of Provinces

4.5.1 The composition and functioning of the National
Council of Provinces
The National Council of Provinces (NCOP) is the second chamber of
South Africa’s bicameral Parliament. It was created to represent the
provinces and ‘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’.235 It is important to note that the NCOP is the second
chamber in the national Parliament and is not one of the nine
provincial legislatures that pass legislation for each of their respective
provinces in the exclusive and concurrent functional areas reserved for
them (see chapter 8).236 Although the NCOP should not be confused
with the nine provincial legislatures, it does nevertheless have strong
links with them because of the way it is composed and operates.
In Doctors for Life the Constitutional Court described the NCOP as
follows:
The NCOP performs functions similar to the National Assembly but from the
distinct vantage point of the provinces. Its role is both unique and fundamental
to the basic structure of our government. It reflects one of the fundamental
premises of [the South African] government, which sees national, provincial
and local governments as ‘spheres within a single whole’, which are distinctive
yet interdependent and interrelated. The NCOP ensures that national
government is responsive to provincial interests while simultaneously
engaging the provinces and provincial legislatures in the consideration of
national policy. From this perspective, the NCOP plays a pivotal role ‘as a
linking mechanism that acts simultaneously to involve the provinces in
national purposes and to ensure the responsiveness of national government to
provincial interests’.237

As this passage clearly indicates, the NCOP is carefully designed as a

key institution for ensuring co-operative government in law making and
in overseeing the executive intergovernmental process. It also plays a
role both in the passage of national laws (both laws dealing with
‘national’ issues and laws that fall under the list of concurrent
functions) and in overseeing the use of the extensive powers vested in
the national and provincial governments to intervene in local
government.238 As Murray and Simeon point out:
The NCOP is the quintessential institution of co-operative government,
providing a forum for the representation of provincial interests in the national
Parliament. Its role is to ensure that the institutional integrity and policy
concerns of provinces are fully taken into account in the national legislative
process. As a part of the national Parliament and as an (indirectly) elected
body, it is designed to operate as an intergovernmental institution without the
‘democratic deficit’ which so often is part of intergovernmental relations.239

A similar point was made by a previous Chairperson of the NCOP, Ms

Thandi Modise. In a mid-term address to the NCOP she explained that:
[the NCOP] is designed to strengthen co-operative governance, deepen
international relations and strengthen our legislative capacity to help realise
better outcomes for our parliamentary system.240

The NCOP resembles the German Bundesrat

In Doctors for Life, the Constitutional Court noted that
the NCOP shares many of its structural characteristics
with the Bundesrat or Council of State Governments on
which the NCOP was modelled.241 Like the NCOP, the
Bundesrat is the second and upper house of the
German Parliament and represents the interests of the
Länder (the states) which, in the South African context,
are equivalent to the nine provincial governments.
While the NCOP is similar to the Bundesrat, the NA is
similar to the first and lower house of the German
Parliament known as the Bundestag. Like the NA, the
Bundestag is elected to represent the interests of all
the people of Germany, not merely the interests of the
citizens of an individual Länd. The members of the
Bundesrat are members of the state governments and
are appointed and subject to recall by the states – just
like the members of the NCOP. They serve in the
council as representatives of the Länder. Germany’s
 Basic Law or Constitution 242 provides that the Länder
shall participate, through the Bundesrat, in the
national legislative process.243 ‘As constitutional
partners, both the Bund, or national government, and
the Länder have an obligation to consult, co-operate
and communicate with each other, consistent with the
principle of Bundestreue ’244 – this is how the Federal
Constitutional Court of Germany 245 explained the
constitutional obligation of trust and friendship that the
Bund (national government) and the Länder (states)
have towards each other.246

The NCOP is composed of a single delegation from each of the nine

provinces, each consisting of ten delegates. It follows, therefore, that the
NCOP has a total of 90 members.247 The ten positions in a provincial
delegation are allocated proportionally to the various parties
represented in the provincial legislature in question in accordance with
the relative strength of parties.248 For example, if the ANC received 60%
of the seats in the Gauteng legislature, the Democratic Alliance (DA)
30% and the Economic Freedom Fighters (EFF) 10%, then the ANC
would be entitled to six, the DA to three and the EFF to one of the ten
delegates representing Gauteng in the NCOP.
In addition, the ten members of each provincial delegation are
classified as either special or permanent delegates.249 There are four
special delegates and six permanent delegates in each provincial
delegation.250 The four special delegates are composed of the Premier of
a province together with three other delegates selected from among the
members of that provincial legislature.251 If the Premier is not available,
he or she may delegate someone else to represent him or her.252 The
Premier or his or her delegate heads the delegation.253 These four
special delegates remain members of the provincial legislature. In other
words, they are simultaneously members of the provincial legislature
and members of the national Parliament acting as special delegates to
the NCOP. They are not appointed for a fixed term and the provincial
legislature can change the composition of its special delegates ‘from
time to time’.254 This means that a provincial legislature can send
different members to the NCOP as special delegates to deal with
different issues, for example on the basis that a delegate has special
knowledge of a matter being considered by the NCOP.

Figure 4.2 Composition of the National Council of Provinces

Like the special delegates, the six permanent delegates in each

provincial delegation are also appointed by the provincial legislatures
on the basis of party affiliation to ensure the accurate proportional
representation of each political party represented in the provincial
legislature in the NCOP delegation. Unlike the special delegates,
however, the permanent delegates cannot simultaneously be members
of the provincial legislature and permanent delegates to the NCOP. They
are selected either from among party members not elected to the
provincial legislature or from among the members of the provincial
legislature, in which case they automatically lose their seats in that
legislature.255 The permanent delegates perform an important function:
they provide continuity and stability to the NCOP by providing a
continuous political presence at the NCOP, ensuring that at least six of
the ten members of each provincial delegation to the NCOP are
permanently stationed at Parliament in Cape Town.256
A permanent delegate will lose his or her membership of the NCOP
if the provincial legislature passes a motion of no confidence in that
delegate and he or she is recalled by the party that nominated him or
her.257 The mere fact that the provincial legislature has passed a motion
of no confidence in a delegate, however, is not enough to remove him or
her. In addition, the party that nominated the permanent delegate must
also recall him or her.258 If the party decides not to recall the permanent
delegate, he or she will remain a member of the NCOP even though a
majority of the members of that provincial legislature have no
confidence in the delegate.259
The composition of the NCOP – with equal representation for small
and large provinces – means that it is not a foregone conclusion that the
political party who garners a majority in the NA will also do so in the
NCOP.

Factors influencing the operation of the NCOP

During the First Certification Hearings,260 the decision
to replace the Senate as the second and upper house
of Parliament with the NCOP was challenged on the
ground that it substantially reduced the power of the
provinces. The Constitutional Court rejected this
argument. In arriving at its decision the Court held that
although the NCOP was in a better position to
represent the interests of the provinces than the
Senate in theory, it was difficult to know if it would
actually do so in practice:
 Although we are satisfied that the structure and the functioning of
the NCOP as provided for in the [new Constitution] are better
suited to the representation of provincial interests than the
structure and functioning of the Senate, we are unable to say that
the collective interest of the provinces will necessarily be
enhanced by the changes that have been made. We have found it
extremely difficult to evaluate the overall impact of these
changes. A number of variable and uncertain factors have to be
taken into account. These include not only the differences in the
powers of the two Houses which have been referred to, but also
the method of appointing the members of the Houses, the
contrast between direct and indirect representation, the different
methods of voting, the different procedures to be followed, the
influence of parties on voting patterns, and the possible impact of
the anti-defection provisions on voting.261

As this passage indicates, it is wise to keep in mind

that constitutional engineering is an imprecise science.
The larger political context, the traditions and culture of
political parties and the relative support of each
political party in the system all influence the manner in
which constitutional structures like the NCOP operate
and whether they will fulfil their mandate. This also
means that as the political landscape changes and as
elections become more competitive the dynamics
around the functioning of the NCOP may well change,
for example if one party were to win the election in five
provinces and a coalition of other parties were to win a
majority in the other four provinces. The NCOP may
then come into its own as a true representative of the
various provincial interests.

The powers of the NCOP vary according to the impact of the legislation
in question on provincial concerns and the nature of the legislation
being considered. If the legislation does not directly affect the
provinces, NCOP members each have an individual vote which they
cast in accordance with the wishes of their respective political parties.262
In all other cases – including when amending the Constitution or
dealing with Bills affecting the provinces – each provincial delegation
casts a single vote.263 It does so under instruction, also called a mandate,
from the provincial legislature of the province represented by the
delegation.264 As the Constitutional Court has explained in Certification
of the Amended Text of the Constitution of the Republic of South Africa,
1996, the NCOP ‘is a council of provinces and not a chamber composed
of elected representatives. Voting by delegation reflects accurately the
support of the different provincial legislatures for a measure under
consideration’.265 ‘In this manner the provincial legislatures are given a
direct say in the national law-making process through the NCOP.’ 266
Unfortunately, the various NCOP delegations have found it difficult
to operate effectively, especially to obtain the requisite mandate from
their respective provincial legislatures in the short time often provided
for this task. There are a number of reasons for this. Given that
provincial legislative attention is so taken up with carrying out
mandates imposed on them from above, and because they are far
removed from the centre of political power in Parliament, they are ill
equipped in terms of information and expertise to pass judgment on
national legislation and to provide informed mandates to the respective
NCOP delegations. This problem is exacerbated by poor
communications between the NA and the NCOP and between NCOP
delegations and their provincial legislatures. Draft Bills are often
provided to the NCOP with little time for provinces to respond.267
In addition, NCOP members are supposed to provide a bridge
between the national legislature and provincial legislatures, but their
political links with both are often weak and ineffective. The technical
and human resources for close communication are often lacking.
Individual NCOP members, shuttling between Parliament in Cape
Town and remote provincial capitals, are placed under enormous
strain. It is highly unrealistic, and probably unnecessary, for provincial
legislatures to pay the same attention to national legislation as does the
NA. It is far more important for them to come to grips with local issues
and problems. However, it is critical that provinces are able to voice
their opinions when legislation directly affects the economic or social
interests of their region, and that they can ensure that national
legislation they will be required to implement is workable. Another
problem is that there is little linkage between the exchange of
information and ideas that goes on within the processes of executive
intergovernmental relations and exchanges at the parliamentary level
through the NCOP. Indeed, provincial executives take little interest in
NCOP matters. This differs greatly from the operation of the German
Bundesrat, the members of which are themselves provincial executives,
thus integrating legislative and executive intergovernmental relations.268
Given these practical difficulties as well as the limited powers and
functions formally bestowed on the NCOP, the NCOP, as the second
House of the national Parliament, is often viewed as the less powerful
and influential of the two chambers of the bicameral South African
Parliament. This is so because almost all Cabinet Ministers will be
members of the NA while NCOP members cannot serve as Cabinet
Ministers. Although Cabinet Ministers and Deputy Ministers may
attend and may speak in the NCOP, they may not vote in that
chamber.269 Moreover, unlike the NA, the NCOP is not given a clear
mandate to hold members of the Cabinet accountable or to maintain
oversight over the executive although the NCOP plays an important role
in the passing of legislation.
Nevertheless, the NCOP and its committees are, under section 69 of
the Constitution, given broad powers. They may ‘(a) summon any
person to appear before it to give evidence on oath or affirmation or to
produce documents; (b) require any institution or person to report to it;
(c) compel, in terms of national legislation or the rules and orders, any
person or institution to comply with a summons …; and (d) receive
petitions, representations or submissions from any interested persons
or institutions’.

The role of strict party discipline in the

effectiveness of the NCOP
Some of the difficulties that the system of negotiating
and voting mandates in the NCOP may give rise to are
illustrated in Merafong Demarcation Forum and Others
v President of the Republic of South Africa and
Others.270 In this case, the Gauteng Provincial
Legislature mandated its NCOP delegation to support a
constitutional amendment eliminating cross-border
municipalities,271 but only on the condition that the
Merafong Municipality would be located in the Gauteng
Province and would not be moved to the North West
Province as provided for in the Constitutional
Amendment Bill. This mandate reflected not only the
views of the Gauteng Provincial Legislatures but also
the views expressed by the majority of the Merafong
community at a public hearing, namely that the cross-
boundary municipalities should be phased out, but
that the Merafong Municipality had to be located
entirely in Gauteng.
However, for technical reasons, the Constitutional
Amendment Bill could not be changed and the NCOP
had to either support the Bill, in which case it would be
passed, or reject the entire Bill, in which case it would
not be adopted. Realising this, the Gauteng delegation
then changed its mind and voted in support of the Bill.
After the Bill was passed, the applicants applied for an
order declaring it to be unconstitutional and invalid.
They based their application on the ground that the
Gauteng delegation voted not in accordance with the
mandate given to them by the Gauteng Provincial
Legislature but rather in accordance with a decision of
the National Executive Committee (NEC) of the ANC
that the Merafong Municipality should be located
entirely in the North West Province and not in Gauteng.
A majority of the Constitutional Court rejected this
argument. In arriving at this decision, the Court found
that ‘[o]n the available evidence, it is not possible to
determine whether and to what extent the final voting
mandate and the debate in the NCOP [delegation]
were directly or indirectly influenced by previously
formulated policies of the ruling party’.272
Although there was not sufficient evidence to
determine that the NCOP delegation changed its
mandate because of instructions by the ANC NEC, the
case demonstrates the potential problems of the
system. Given the culture of political parties of strictly
adhering to the discipline imposed by their leaders,
and the fact that the governing party has the power to
discipline the members of the provincial legislature as
well as the NCOP delegation if they disobey leadership
instructions, it is not far-fetched to imagine that
provincial legislatures will provide NCOP delegations
with mandates that align with the decisions of the
party leadership and not necessarily with the interests
of the province. In other words, the single factor most
likely to determine to what extent the NCOP is able to
represent the interest of the provinces in an effective
manner is the degree to which political parties demand
adherence to strict party discipline from their
delegates. Where the majority party in the national
Parliament is also in control of a majority of provincial
legislatures, adherence to strict party discipline will
mean that those provincial delegations controlled by
the majority party will be reluctant to challenge the
political consensus which emerges from the
representatives of the majority party in the NA. This will
be particularly true where a sensitive political issue is
at stake. However, in more technical and politically less
sensitive areas, strict party discipline will not
necessarily emasculate the provincial delegations of
the majority party in the NA.
 Procedures, internal arrangements and committees of
4.5.2
the National Council of Provinces
The Constitution requires the election of a Chairperson and two Deputy
Chairpersons of the NCOP,273 and provides for the NCOP to make its
own internal arrangements and procedures.274 The NCOP is also
required to establish committees to oversee its work, which is done in
terms of its rules.275
Given that the NCOP is composed of a single delegation from each
province, each province usually has one vote which must be cast on
behalf of the province by the head of the delegation.276 A majority is
achieved when five delegations support a decision. However, when the
NCOP has to pass legislation not affecting the provinces, each delegate
in the NCOP has one vote and a majority of votes of delegates is
required to pass a Bill.277 An Act of Parliament ‘must provide for a
uniform procedure in terms of which provincial legislatures confer
authority on their delegations to cast votes on their behalf’.278 Pursuant
to this, Parliament enacted the Mandating Procedures of Provinces
Act.279 However, despite the mechanisms that could be created for
consensus building and consultation across party lines, in effect the
majority party in the provincial legislature has the power to decide how
the vote of the provincial delegation will be exercised. Except where the
Constitution provides otherwise, questions before the NCOP are agreed
when five of the nine provinces vote in favour of it.280 In other words, an
absolute majority is normally required.281 These provisions recognise
that the single delegation of a province in the NCOP normally acts as
representative of the province.
However, as was noted above, sometimes the NCOP does not act in
this capacity as representative of the province. For example, when Bills
are considered which do not affect the provinces, such as non-Schedule
4 and 5 Bills, the NCOP does not represent the provinces and the voting
procedures described above do not apply. In respect of such matters,
the Constitution provides that the delegates in the Council vote
individually. A quorum of one third of the delegates must be present
and a decision must then be taken by a majority of those present.282
 The Constitution further provides, consistent with this distinction,
that when the NCOP acts as representative of the provinces, all the
provinces must be allowed to participate in the ‘proceedings in a
manner consistent with democracy’.283 However, when it comes to law
making that does not affect the provinces, minority parties must be
allowed to participate in law making.284
The NCOP may not be dissolved. In principle, it is a perpetual body
without a fixed term. The tenure of the members of the NCOP, however,
is far less secure. The terms of the permanent delegates are linked to the
provincial legislature they represent and, as we stated above, they may
be recalled. The position of the special delegates is even less secure.
Because they are appointed from time to time, they will generally serve
for short periods of time on the NCOP.

4.6 Functions of Parliament

4.6.1 Introduction
The Constitution bestows a number of functions on Parliament.
Perhaps the most important of these is to pass national legislation for
the Republic, usually in the form of an Act of Parliament. Although this
may be the most important function bestowed on Parliament, it is by no
means the only one. In addition, and on a more symbolic level,
Parliament is also required to act as a national forum for public debate
on issues of national importance. In this sense, Parliament acts a
platform for representatives of political parties to present their views
and debate each other.
Apart from these two functions, the Constitution also bestows
additional functions specifically on the NA in order to enable it to fulfil
its special role as a ‘check’ on the executive authority. This special task is
bestowed on the NA because of the fact that it appoints and can dismiss
the President. It follows, therefore, that the President and his or her
Cabinet need to retain the confidence and hence the support of the NA
to remain in power. Although the tasks of the two Houses, therefore, are
not identical, the two Houses of Parliament can be said to fulfil four
main functions.
They must:
• provide a forum for debate on important issues285
• hold the executive organs of state in the national sphere of
government accountable to Parliament286
• exercise an oversight function over the exercise of national authority
and over other organs of state287
• pass national legislation.288

Each of these functions will be considered in turn.

4.6.2 National forum for public consideration of issues

One of Parliament’s most important functions may be described as
fulfilling the role of a ‘national talk shop’.289 Currie and De Waal argue
that Parliament fulfils this role in two ways:
• First, Parliament is required to operate in a transparent and
accountable manner.290 The public, including the media, may not be
excluded from a sitting of a committee unless it is reasonable and
justifiable to do so in an open and democratic society.291
• Second, as we have seen, Parliament is required to operate in such a
way as to give ordinary persons and affected individuals and
institutions the opportunity to have access to its proceedings and to
present their views on issues considered by Parliament in writing or
by oral presentations.292

Apart from the two requirements discussed above, we contend that the
two Houses of Parliament also fulfil their task as a ‘national talk shop’ by
providing a platform for elected political representatives to deliver
speeches and to engage in debates with one another and with the
President about policy questions as well as issues of political
importance. Given that events in Parliament are relatively well reported
by the print, electronic and social media, Parliament provides an
important platform for floating new ideas and for elected politicians to
‘perform’ democracy by illustrating their willingness to debate
important and often emotional issues with members from other
political parties in a relatively rational and calm manner. Parliament, at
its best, therefore, can act as a body that educates citizens about the
importance of participating in a democracy and respecting differences
without having to agree with those who differ from oneself.
The Rules of the NA and the NCOP provide various mechanisms to
achieve these goals.293 The Rules of the NA, for example, provide that a
member of the NA may propose a subject for discussion or a draft
resolution for approval as a resolution of the House, with or without
debate.294 They also provide that an MP may request the Speaker in
writing to schedule without delay an urgent matter of national public
importance for discussion by the House.295 Somewhat similarly, the
Rules of the NCOP provide that a delegate may, in writing, request the
Chairperson of the NCOP to allow a matter of public importance to be
discussed by the Council, but this request will only be granted if the
matter affects the provinces or one or more of them.296

4.6.3 Holding the executive accountable to Parliament

As we have seen in the discussion about the separation of powers
doctrine, the 1996 Constitution retains a form of parliamentary
government which is similar but not identical to the Westminster model
of government. The Constitution thus states that members of Cabinet
are accountable to Parliament and must report to Parliament
regularly.297 Accountability is the hallmark of modern democratic
governance and implies that members of the executive have to explain
their actions to Parliament and its committees so that Parliament can
check the exercise of power by members of the executive. The
Constitutional Court has affirmed that the power to hold the President
and the executive accountable is not merely discretionary – Parliament
is duty-bound, in certain circumstances, to hold the President (and
other members of the executive) accountable.298 It is also required to
put effective mechanisms in place to achieve that objective.299 In United
Democratic Movement v Speaker of the National Assembly and Others,
the court explained this as follows:
It thus falls on Parliament to oversee the performance of the President and the
rest of Cabinet and hold them accountable for the use of State power and the
resources entrusted to them. And sight must never be lost that ‘all
constitutional obligations must be performed diligently and without delay’.
When all the regular checks and balances seem to be ineffective or a serious
accountability breach is thought to have occurred, then the citizens’ best
interests could at times demand a resort to the ultimate accountability-
ensuring mechanisms. Those measures range from being voted out of office by
the electorate to removal by Parliament through a motion of no confidence or
impeachment. These are crucial accountability-enhancing instruments that
forever remind the President and Cabinet of the worst repercussions that could
be visited upon them, for a perceived or actual mismanagement of the people’s
best interests.300

In addition, the Court also stated that:

accountability is necessitated by the reality that constitutional officebearers
occupy their positions of authority on behalf of and for the common good of all
the people. It is the people who put them there, directly or indirectly, and they,
therefore, have to account for the way they serve them.301

The fact that Parliament in general and the NA more specifically have a
constitutional obligation to hold the President and the rest of the
executive accountable means that the court can order the NA to hold
the President or the executive accountable after making a finding that it
had failed to do so. This is what happened in Economic Freedom Fighters
and Others v Speaker of the National Assembly and Another302 after the
then Public Protector had made adverse findings against the then
President about the use of public funds to renovate the President’s
private home and after the Constitutional Court had held that these
findings were binding on everyone. The Court held that despite these
adverse findings by the Public Protector (including a finding that the
President had violated the Constitution and breached the Executive
Members Ethics Code) the NA had not taken ‘appropriate action’
against the President.303 While minority parties had tabled a motion for
the removal of the President in terms of section 89 of the Constitution
(the so-called impeachment provision), the NA had failed to follow the
required procedure to deal with the motion. This, the court held, meant
that the NA had failed to hold the President to account ‘as was required
by section 89(1)’.304 It appears that if the NA had followed a
constitutionally compliant procedure in terms of section 89(1) and had
nevertheless voted against impeachment of the President, it would have
complied with its duty to hold the President accountable. What is not
clear from the judgment is whether the Court would have held that the
NA had failed in its duty to hold the President accountable if opposition
parties had not tabled a motion for the removal of the President at all. In
other words, it is unclear if it would be overstepping the boundaries of
separation of powers for the Constitutional Court to order the NA to
institute removal proceedings against the President.305
This power of Parliament to hold the executive accountable will only
be effectively exercised where Parliament has the ability to sanction
members of the executive who abuse their power or fail to fulfil their
respective mandates. The power of Parliament to hold the executive
accountable, therefore, entails two distinct but interrelated aspects:
• First, it entails the powers of Parliament to call members of the
executive and the public administration to account for their
activities. This is aimed at enhancing the integrity of public
governance to safeguard government against corruption, nepotism,
abuse of power and other forms of inappropriate behaviour, and to
assist in improving the performance of the Cabinet as well as the
public administration. This kind of accountability also reflects a
culture of transparency, responsiveness and answerability, which is
necessary to ensure public confidence in government, and to bridge
the gap between the governed and the government. If used wisely
and effectively, these accountability mechanisms enable the public
to judge the performance of the government.306
• Second, accountability will arguably not be effective if it does not
include the power of Parliament to take remedial action and even to
dismiss members of the executive who fail to account properly for
their actions. As such, accountability requires the establishment of
institutional arrangements to effect democratic control over the
 executive as members of the executive, unlike the MPs, are not
directly democratically elected.

As far as the first aspect is concerned, sections 56 and 69 of the

Constitution respectively provide that the NA and the NCOP or any of
their committees may ‘summon any person to appear before [them] to
give evidence on oath or affirmation, or to produce documents’. They
may also ‘require any person or institution to report to [them]’. Where
anyone refuses to appear before the NA and the NCOP or any of their
committees, they can summons that person or institution and can
compel such a person or institution to comply with the summons. The
Rules of the NA and the NCOP further provide for the powers of their
committees to enable them to hold members of the executive
accountable.307 The Rules of the NA and the NCOP also provide for
members of the NA to pose questions and receive oral answers from
Ministers,308 the Deputy President 309 and the President.310
As far as the second aspect is concerned, the NA has distinct powers
(not given to the NCOP) to ensure democratic control over the
executive. Although the Cabinet is accountable to both the NA and the
NCOP, the Constitution clearly envisages a special role for the NA in this
regard. Section 102(2) of the Constitution thus empowers the NA to pass
a motion of no confidence in the President as long as such a motion is
supported by a majority of its members. In this event, the President and
the other members of the Cabinet and any Deputy Ministers must
resign.311 This power is a political power and the removal can be effected
for purely political reasons. This provision means that the President and
his or her Cabinet have a strong political incentive to retain the support
of the majority party in the NA. In the South African political landscape,
this means they also have a strong political incentive to retain the
support of the leadership of the majority party outside Parliament. If a
President loses the support of the majority party, he or she will have to
resign. If the President refuses to do so, the majority party in the NA will
simply instruct its members to vote in favour of a motion of no
confidence in the President. If members of the majority party refuse to
do so, the majority party will remove them from the NA and replace
them with members who will vote in favour of a motion of no
confidence.
Neither the majority party in the NA nor any of the minority parties
are constitutionally allowed to block the tabling, discussion,
consideration and voting on a motion of no confidence. In Mazibuko v
Sisulu and Another,312 the Constitutional Court confirmed this,
declaring Chapter 12 of the Rules of the NA invalid on the ground that it
purported to do just that. This case arose after the Leader of the
Opposition in the NA gave notice of a motion of no confidence in the
President. The programme committee of the NA 313 met to consider the
proposed motion of no confidence. However, its deliberations on the
motion were deadlocked. Given that there was an absence of consensus
between the parties, the Speaker concluded that the motion could not
be scheduled and, therefore, could not be debated or voted on.314 The
majority judgment (authored by Deputy Chief Justice Moseneke) found
that the Constitution required the Rules of the NA to permit its
members to deliberate and vote on a motion of no confidence in the
President:
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 scrutinise
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.315

This right to have a motion of no confidence considered and voted on is

central to the ‘deliberative, multiparty democracy envisioned in the
Constitution’.316 The Court pointed out that it ‘implicates the values of
democracy, transparency, accountability and openness’.317 It is for this
reason that a ‘motion of this kind is perhaps the most important
mechanism that may be employed by Parliament to hold the executive
to account, and to interrogate executive performance’.318 The Rules of
the NA may not ‘deny, frustrate, unreasonably delay or postpone the
exercise of the right’.319 This means a decision whether a vote of no
confidence is tabled, debated and voted on:
cannot be left to the whim of the majority or minority in the programme
committee or any other committee of the Assembly. It would be inimical to the
vital purpose of section 102(2) to accept that a motion of no confidence in the
President may never reach the Assembly except with the generosity and
concurrence of the majority in that committee. It is equally unacceptable that a
minority within the Committee may render the motion stillborn when
consensus is the decision-making norm.320

Although the NA has the constitutional authority to ‘determine and

control its internal arrangements, proceedings and procedures’,321 such
authority must be exercised in conformity with the Constitution. When
a motion of no confidence is tabled, it ‘must be accorded priority over
other motions and business by being scheduled, debated and voted on
within a reasonable time’.322 The NA, therefore, is required to ‘take
prompt and reasonable steps to ensure that the motion is scheduled,
debated and voted on without undue delay’.323 This does not mean that
when such a motion is tabled it will be passed. As long as the majority
party in the NA retains confidence in the President and his or her
Cabinet, there is little chance of the NA passing such a vote of no
confidence.
However, where the majority of members of the NA lose confidence
in the President, such a vote will lead to the removal of the President. It,
therefore, is not surprising that former President Thabo Mbeki resigned
as President of the Republic after losing a leadership battle with his
successor in the governing party and was subsequently ‘recalled’ by the
leadership of the party. If he had refused to resign, the ANC would in all
likelihood have instructed its members in the NA to support a vote of no
confidence in the President, something which would arguably have
resulted in his removal.324 In fact this is precisely what the ANC
leadership threatened to do after it recalled former President Zuma and
he refused to resign. Following President Zuma’s refusal, the ANC
announced that it had schedule a motion of no confidence for the 15
February 2018. Faced with this threat, President Zuma called a press
conference on the night of the 14 February 2018 and announced his
resignation with immediate effect.

Section 89(1) of the Constitution also allows the NA to impeach the

President by adopting a resolution with a supporting vote of at least two
thirds of its members to remove the President on the grounds of a
serious violation of the Constitution or the law, serious misconduct or
inability to perform the functions of office. This is not a purely political
power, but a power to remove the President for objective reasons
unrelated to the political support enjoyed by the President. Moreover,
section 55(2)(a) of the Constitution commands the NA to devise
mechanisms that will enable it to hold the executive organs of state
accountable to Parliament. These provisions reiterate one of the
fundamental principles of a traditional system of parliamentary
government, namely that the President and his or her Cabinet must
remain accountable to the democratically elected NA.325
The extent to which the NA, and to a lesser extent the NCOP, are able
to hold the executive accountable to Parliament depends on the
traditions and practices that are developed in Parliament over time.
This, in turn, depends on the attitude of the members of the majority
party in Parliament, especially its leaders who serve in the government,
towards the need for accountable government. It also depends on the
way in which members of opposition parties fulfil their role in holding
the executive to account. In this regard, the role of the portfolio
committees discussed above is crucial. One of the most important ways
in which Parliament holds the executive accountable is through the
regular question-and-answer sessions in Parliament. During such
question times, MPs have the opportunity to pose probing questions
about the activities of the President, Deputy President and the Cabinet
Ministers. Ministers are then obliged to provide statistics about different
aspects of their departments, details of the expenditure on various
items and to defend the policies they have adopted.326
How accountable is the executive to
Parliament?
Nash is critical of the notion of accountability built into
the South African Constitution with its emphasis on the
democratically elected Parliament and its role of
holding the executive accountable. He argues that
effective accountability practice – widely employed in
the South African labour movement in the 1970s and
80s – does not ‘depend on lawyers, bureaucrats or
accountability experts or even a handbook. It depends
on active participation in political life, informed by a
shared ethical standard’.327 This process of
accountability, Nash argues, is important because it
strengthens the capacity of oppressed and
marginalised people to act collectively and consciously
to take responsibility for their actions and those of
their leaders. Where there is little or no active
participation in the decision-making processes of
Parliament or the executive by the electorate, and no
real prospect of them recalling their leaders or
changing their mandate, as happened in the earlier
labour movement, the accountability remains no more
than paper accountability with no or little practical
effect for the oppressed.328 This ‘neoliberal’ model of
accountability ‘can be understood largely as a way of
providing the façade of democracy without the
substance, ensuring that issues around which “factions
of the majority” might unite against the interests of the
propertied are taken out of the political arena and
made the subject of bureaucratic procedure
instead’.329
Nash’s view is based on a more ‘grassroots’
understanding of democracy and accountability. It
displays a scepticism towards the notion of
 representative democracy and the formal mechanisms
put in place by the Constitution to ensure
accountability. At its heart this view seems to be
sceptical about the ability of the MPs – indirectly
elected because of their standing in a political party
and not directly accountable to any constituency – to
hold the executive to account.

4.6.4 Maintaining oversight of the national executive

authority and other organs of state
Oversight resembles, but may nevertheless be distinguished from,
accountability. It ‘entails the informal and formal, watchful, strategic
and structured scrutiny exercised by legislatures in respect of the
implementation of laws, the application of the budget, and the strict
observance of statutes and the Constitution’.330 It requires the NA to
oversee the day-to-day exercise of authority by the national executive
and to oversee the actions of other organs of state. This task includes
overseeing the implementation of legislation.331
In addition, and most importantly, it entails overseeing the effective
management of government departments by individual members of Cabinet in
pursuit of improved service delivery for the achievement of a better quality of
life for all citizens. In terms of the provisions of the Constitution and the Joint
Rules, Parliament has power to conduct oversight over all organs of state,
including those at provincial and local government level. 332

Organs of state are defined broadly in section 239 of the Constitution to

include:
any department of state or administration in the national, provincial or local
sphere of government; or any other functionary or institution (i) exercising a
power or performing a function in terms of the Constitution or a provincial
constitution; or (ii) exercising a public power or performing a public function
in terms of any legislation …

Parliament is therefore entitled to oversee the work of the more than 1

000 organs of state which include a wide array of institutions such as all
public universities in South Africa, the Johannesburg Fresh Produce
Market, the Public Protector, the Human Rights Commission, the
Medical Research Council of South Africa, the National Gambling
Board, the National Lotteries Board and the Natal Sharks Board, to
name but a few. However, this does not include a court or a judicial
officer, which means Parliament cannot fulfil an oversight role over the
judiciary.333
The appropriate mechanism for Parliament to conduct oversight of
these organs of state is through the various parliamentary committees,
mostly the portfolio committees discussed above.
In conducting oversight, the committee would either request a briefing from
the organ of state [or Cabinet Minister] or visit the organ of state for fact-
finding, depending on the purpose of the oversight … One of the most
important aspects of the oversight function is the consideration by committees
of annual reports of organs of state and the Auditor-General’s reports.334

The more independent, knowledgeable, hard-working and politically

powerful the members of the committees are, the more rigorous the
NA’s oversight of the executive and other organs of state will be.
Committees have the power to investigate and make recommendations
on any matter relating to government departments, including budgets,
rationalisation, restructuring, organisation, structure, function,
personnel and policy formulation.335
The oversight role of the NCOP is more defined. The NCOP must
review the intervention of the national executive in a province and the
provincial executive in a municipality.336 Both the NA and the NCOP
must approve a decision by the Treasury to stop the transfer of funds to
a province 337 or a decision by the President to declare a state of national
defence.338 Additionally, the NCOP resolves disputes concerning the
administrative capacity of a province.339

4.6.5 Passing of legislation

The notion of co-operative government, enshrined in Chapter 3 of the
Constitution, lies at the heart of the law-making process in Parliament.
This is because the procedure for enacting legislation under the
Constitution requires institutional co-operation and communication
between national and provincial legislatures as well as between the
national executive and Parliament. However, the Constitution does not
clearly define how this should occur. It is important to note that this
need for co-operation is intimately linked with the fact that the
legislative process is based on the assumption that provincial interests
(as defined in the Constitution) will be taken into account in the
national law-making process whenever such interests arise. As such, the
NCOP plays an important role in institutionalising the principle of co-
operation and communication by involving the nine provinces directly
in the national legislative process and other national matters. As the
Constitutional Court pointed out in Doctors for Life:
The local government is also involved indirectly in that local government may
designate up to ten part-time, non-voting representatives to participate in the
NCOP proceedings. Thus the NCOP represents the concerns and interests of
the provinces and as well as those of local government in the formulation of
national legislation.340

The Court also held that:

the principle of institutional co-operation and communication finds
expression in the principle of co-operative government to which Chapter 3 of
the Constitution is devoted. The role of the NCOP should be understood in the
light of the constitutional principle of co-operative government, which shares
similarities with the principle of Bundestreue. The basic structure of our
government consists of a partnership between the ‘national, provincial and
local spheres of government which are distinctive, interdependent and
interrelated’. The principle of co-operative government requires each of the
three spheres to perform their functions in a spirit of consultation and co-
ordination with the other spheres.341

It is important to note from the outset that Parliament (as opposed to

the nine provincial legislatures) has the power to pass legislation on
‘any matter’, including those not explicitly listed in the Constitution,
unless the Constitution provides otherwise. Thus, section 44 of the
Constitution confers the power on Parliament:
a) to amend the Constitution342
b) to pass legislation on ‘any matter, including a matter … listed in
Schedule 4, but excluding, subject to subsection (2), a matter within
a functional area listed in Schedule 5’343
c) ‘to assign any of its powers, except the power to amend the
Constitution, to any legislative body in another sphere of
government’.344

Schedule 4 contains a list of concurrent national and provincial powers,

while Schedule 5 contains a list of exclusive provincial powers. This
means that while both Parliament and the provincial legislatures may
pass legislation on the subjects listed in Schedule 4, as a general rule
only the provincial legislatures may pass legislation on the subject listed
in Schedule 5. In certain very limited circumstances, however,
Parliament may also pass legislation on the subjects listed in Schedule
5. These limited circumstances are set out in section 44(2) of the
Constitution.
Given that both Parliament and the provincial legislatures may pass
legislation on the subjects listed in Schedule 4, a conflict may arise
between national legislation and provincial legislation dealing with a
subject listed in Schedule 4. In such a case, section 146 of the
Constitution provides that the provincial legislation will prevail over the
national legislation unless one of the criteria listed in section 146 itself
is present.345
As indicated earlier, there is no absolute separation of the functions
performed by the legislative and the executive branches of government.
This is evident when we focus on the passing of legislation by
Parliament, which is arguably the most important function of that body.
Given the political influence (we may even say dominance) of the
executive in our system of government, draft legislation (Bills) usually
originate in the executive and are then tabled in and passed by
Parliament. Apart from the executive, however, individual members of
the NA may also initiate legislation 346 – in the form of private members’
Bills347 – and so may Committees of the NA.348
Section 73(2) of the Constitution allows any individual member of
the NA to introduce a Bill in the NA even if that member is not a Cabinet
Minister and even if he or she belongs to an opposition party. Prior to
2012, however, the Rules of the NA made it difficult for non-Cabinet
Ministers, especially from opposition parties, to initiate Bills. This is
because the Rules of the NA stated that an individual member of the NA
could initiate and introduce a Bill into the NA only if a majority of
members of the NA had given ‘permission’ to that member to do so.349
Individual members of opposition parties could attempt to initiate
legislation by submitting a legislative proposal to the Speaker. This
proposal had to set out the particulars of the proposed legislation,
explain the objects of the proposed legislation and state whether the
proposed legislation would have financial implications for the State.350
The Speaker would then refer the member’s memorandum to the
Committee on Private Members’ Legislative Proposals and Special
Petitions which would decide whether the proposal should proceed or
not. In doing so, the Committee had to confine its consideration of the
legislative proposal to whether it:
(a) goes against the spirit, purport and object of the Constitution; (b) seeks to
initiate legislation beyond the legislative competence of the Assembly; (c)
duplicates existing legislation or legislation awaiting consideration by the
Assembly or Council; (d) pre-empts similar legislation soon to be introduced
by the national executive; (e) will result in a money bill; or (f) is frivolous or
vexatious.351

Even if the Committee gave permission for the Bill to proceed, the
majority party in the NA could still decide not to support the initiation
of the Bill which meant that it would not be passed. In practice, this
meant that members of the opposition could never introduce Bills into
the NA unless they were given permission by the majority party to do so.
In Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National
Assembly,352 however, 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 Court stated that South
Africa’s constitutional democracy ‘is designed to ensure that the
voiceless are heard’, and is one in which the ‘views of the marginalised
or the powerless minorities’ cannot be suppressed.353 The Court
approvingly quoted a passage from its earlier judgment in Democratic
Alliance and Another v Masondo NO and Another to illustrate the
principle that must apply to the evaluation of NA Rules giving effect to
the constitutional provisions that empower members of the NA to take
certain actions:
[T]he Constitution does not envisage a mathematical form of democracy,
where the winner-takes-all until the next vote-counting exercise occurs.
Rather, it contemplates a pluralistic democracy where continuous respect is
given to the rights of all to be heard and have their views considered … The
open and deliberative nature of the process goes further than providing a
dignified and meaningful role for all participants. It is calculated to produce
better outcomes through subjecting laws and governmental action to the test of
critical debate, rather than basing them on unilateral decision-making.354

The provisions in the Constitution that allow individual MPs to initiate

legislation and introduce Bills in the NA are important as these provide
members of the NA with an opportunity ‘to promote their legislative
proposals so that they could be considered properly’.355 The members of
both the majority and minority parties in the NA will then be required
‘to deliberate critically and seriously on legislative proposals and other
matters of national importance’.356 These deliberations take place in the
relevant portfolio committee before the Bill is submitted to the NA for a
vote. These provisions therefore allow for the accommodation of
different views in a structured and formal manner during the
consideration of legislative proposals. As the Constitutional Court
pointed out:
South Africa’s shameful history is one marked by authoritarianism, not only of
the legal and physical kind, but also of an intellectual, ideological and
philosophical nature. The apartheid regime sought to dominate all facets of
human life. It was determined to suppress dissenting views, with the aim of
imposing hegemonic control over thoughts and conduct, for the preservation
of institutionalised injustice. It is this unjust system that South Africans,
through their Constitution, so decisively seek to reverse by ensuring that this
country fully belongs to all those who live in it.357

This does not mean that the will of the majority party in the NA can
ultimately be overridden. Once a legislative proposal has been initiated
and tabled, the majority party can always vote against a Bill. This can
only happen after the Bill initiated by an ordinary MP has been
discussed and debated by the relevant portfolio committee. Some may
say the right of opposition MPs to introduce their own Bills would
therefore be of little more than ceremonial significance. However, as the
Constitutional Court pointed out, this is not so as it will give opposition
MPS the opportunity to go beyond an obstructionist oppositional role,
allowing them to submit constructive proposals of their own about how
to solve a particular legislative problem and allowing these proposals to
be discussed seriously by the members of the NA.358
Despite the changes brought about by the Oriani-Ambrosini
judgment, most Bills are still initiated and introduced by Cabinet
Ministers who are tasked with leading the legislative agenda of the
elected government of the day. Ordinary members of the NA from the
majority party usually defer to the legislative agenda set by Cabinet.
This means a member of the executive, an individual Cabinet Minister,
usually initiates legislation dealing with issues related to his or her
portfolio before a Bill is introduced and adopted by Parliament. A Bill is
the request submitted to Parliament for the approval of particular
legislation in relation to a particular matter.

One small step for Parliament, one giant leap

for Oriani-Ambrosini
One commentator welcomed the Oriani-Ambrosini
judgment on the basis that it must be viewed in the
context of the South African electoral system which
disempowers voters and weakens the links between
voters and the elected representatives in the NA.
Writing on his blog, De Vos stated:
Our electoral system – which requires us to vote for political
parties and not for individual MPs – renders it difficult for voters
to hold individual MPs accountable. Unless we join a political
party and unless we actively take part in the election processes
for the leadership of that party, we have little or no say in who
represents us in Parliament and who is elected as our President.
This diminishes transparency and accountability in the governance
and law-making processes.
Given these limitations, rules of the National Assembly which
would make it impossible for individual MPs to have their
alternative legislative proposals tabled and discussed by the
Assembly diminishes our democracy and robs voters of the
opportunity to judge whether they support the legislative
proposals of the governing party or of any given opposition party.

Chief Justice Mogoeng emphasised that providing such

alternatives ‘allow for a legislative proposal to be
debated properly and in a manner that is open to the
public, before its fate is decided’.359 Furthermore:
public participation, so as to cultivate an ‘active, informed and
engaged citizenry’, is also facilitated by rules that allow even
minority party members, who are not ordinarily represented in
Cabinet, to initiate or prepare legislation and introduce a Bill. This
is because the public can only properly hold their elected
representatives accountable if they are sufficiently informed of the
relative merits of issues before the Assembly.360

Of course, this does not mean, for example, that the

majority party would have changed course and ditched
the Secrecy Bill in favour of an alternative Bill
proposed by Lindiwe Mazibuko. The majority party
would remain entitled to make the final decision on
which Bill to pass into law – no matter how unpopular
that Bill might be with the electorate.
But in the long run its MPs would have been forced
to engage seriously with an alternative Bill proposed by
the opposition. A failure to do so in a serious and
competent manner would have run the risk of turning
away more informed voters and would have eroded the
voting majority of the dominant party. On the other
hand, if the MPs of the majority party had managed to
show up the Bill proposed by the opposition as
frivolous, unworkable or unpopular, the party would
have been able to gain more support from voters
currently supporting an opposition party or not
supporting any party at all. The judgment will not cure
all the ills that beset our democratic Parliament. The
 culture within political parties, which requires strict
party discipline and control of individual MPs by party
leaders, is too strong for this. But it is a first small step
towards making our democratic Parliament relevant
once more.361

There are important structural and contextual reasons why legislation is

usually initiated and prepared by the responsible Cabinet member and
not by individual members of the NA or by a committee of the NA: 362
• First, South Africa has been a one-party-dominant political system
since the dawn of democracy in 1994. Many of the leaders of the
dominant party serve in Cabinet which, in turn, initiates legislation
in accordance with the mandate of the majority party.363
• Second, members of the NA are elected via the party proportional
representation system. They depend on their party’s support to
retain their seats, making it unlikely that members of the majority
party will take an initiative not approved by the party leadership.364
• Third, the current governing party, the ANC, ‘is a highly centralised
organisation where power has become increasingly concentrated in
the hands of [the] President … and the party leadership’.365
• Fourth, the Speaker plays an important role in deciding which Bills
are introduced and the Speaker is a member of the majority party in
the NA.366
• Last, the political culture of the governing ANC is one in which
internal debate flourishes but once a decision is taken, ordinary
members tend to defer to the leadership who serve in Cabinet.367

Apart from these contextual reasons, there is also a practical reason for
the dominance of the executive in the preparation and introduction of
legislation. Legislation is usually introduced to give legislative effect to
the political programme of action of the majority party (or coalition of
parties) which forms the government. In theory, the voters endorse this
programme in an election. The party then has a democratic mandate to
implement the policies for which it was elected as the governing party.
However, no party can foresee all eventualities and, therefore, does not
place its entire legislative programme before the electorate during an
election. This is why – as we have seen – the Constitution requires
Parliament to facilitate public involvement in the law-making process.
Be that as it may, voters elected a party to lead the government and
expect the leadership of the party to take the initiative and to formulate
policies and eventually legislation to give effect to such policies.
The process of law making through the initiative of the executive, the
normal way in which laws are passed, can be simplified as follows:
• Policy is formulated via various channels, including through the
National Economic Development and Labour Council (Nedlac),
through internal party discussions and Cabinet discussions which
finally results in a draft Bill which is eventually approved by Cabinet.
• After Cabinet has approved the draft Bill, the Cabinet Minister
responsible for the policy in question usually first introduces the Bill
in the NA or, in some cases, the NCOP. This is referred to as the first
reading.
• The Bill is then referred to the appropriate portfolio committee for
review and amendment after facilitation of public involvement as
discussed above. This is referred to as the second reading and the Bill
is considered ready for passing.
• If the NA passes the Bill, it is forwarded to the upper House, the
NCOP, for its assent. If the Bill was introduced in the NCOP and
approved there, it is forwarded to the NA for its assent.368

Once both Houses of Parliament have passed the Bill, it is presented to

the President for signature. The President does not have a general right
to veto Bills duly passed by Parliament but may refuse to sign the Bill if
he or she has reservations about its constitutionality. In this case, the
President must refer the Bill back to the NA for reconsideration.369
Does the President enjoy the power to veto a
Bill?
In South Africa, the President is not allowed to refuse
to sign a Bill into law because he or she disagrees
politically with the Bill or merely because he or she
believes that it is flawed in some other way. Neither is
he or she allowed to refuse to sign a Bill into law and,
instead, to refer it back to Parliament to ask it to ‘fix’
the Bill for either policy reasons or because the
President believes the Bill is flawed.
The South African President has the power to slow
down the passage of a Bill into an Act of Parliament,
but only in very narrow circumstances. This weak veto
power can be found in section 79 of the Constitution.
Section 79(1) of the Constitution states that: ‘The
President must either assent to and sign a Bill passed
in terms of this Chapter or, if the President has
reservations about the constitutionality of the Bill, refer
it back to the National Assembly for reconsideration.’
Section 79(4)(b) further allows the President to
refer a Bill already reconsidered by Parliament in terms
of section 79(1) to the Constitutional Court for a
decision on its constitutionality. These sections make
clear that the President is required to sign a Bill duly
passed by Parliament unless he or she has
reservations about the constitutionality of aspects of
the Bill. If the President has no reservations about the
constitutionality of a Bill, he or she has a duty in terms
of section 237 to fulfil the constitutional obligation to
sign the Bill ‘diligently and without delay’. When the
President delays signing a Bill and refers it back to
Parliament because he believes the Bill is flawed (but
constitutionally compliant), the President
unconstitutionally usurps the powers of Parliament –
 the only directly elected branch of government. Such a
move would amount to a power grab by the executive
vis-à-vis the legislature, and could lead to a
constitutional crisis.370

Figure 4.3 The law-making process

The Constitution distinguishes between four categories of Bills and

prescribes a different procedure for each category, namely Bills
amending the Constitution,371 ordinary Bills not affecting provinces,372
ordinary Bills affecting provinces 373 and money Bills.374 Given that the
Constitution prescribes a different procedure for each category of Bill, it
is important to classify or tag a Bill as one of these four categories before
it is introduced into Parliament.375 This is because the manner in which
a Bill is classified or tagged will determine which procedure must be
followed and it is important to determine which procedure must be
followed because some procedures are more onerous than others. The
Joint Rules of Parliament establish the Joint Tagging Mechanism (JTM)
which consists of the Speaker and Deputy Speaker of the NA and the
Chairperson and Deputy-Chairperson of the NCOP.376 The function of
the JTM is, among other things, to make final rulings as to the
classification of Bills.377
The test for tagging a Bill was set out by the Constitutional Court in
Tongoane and Others v National Minister for Agriculture and Land
Affairs and Others.378 In this case, the Court drew a distinction between
the ‘pith and substance’ test used by the Court to characterise a Bill in
order to determine legislative competence (something we deal with in
chapter 8 of this book) and for the purpose of tagging the Bill. As the
Constitutional Court pointed out, for the purposes of tagging, we do not
enquire into the substance or the true purpose and effect of the Bill.
Rather, what matters is whether the provisions of the Bill ‘in substantial
measure fall within a functional area’ which the Constitution empowers
provinces to legislate on. The test to be adopted when tagging Bills,
therefore, is called the ‘substantial measure’ test.379 This test for
classification or tagging, therefore, is different from that used by the
Court to characterise a Bill in order to determine whether either the
national or the provincial legislature has the legislative competence to
enact the law (with which we deal in chapter 8 of this book). The latter
test ‘involves the determination of the subject-matter or the substance
of the legislation, its essence, or true purpose and effect, that is, what
the [legislation] is about’.380 As the Court pointed out in Tongoane:
There is an important difference between the ‘pith and substance’ test and the
‘substantial measure’ test. Under the former, provisions of the legislation that
fall outside of its substance are treated as incidental. By contrast, the tagging
test is distinct from the question of legislative competence. It focuses on all the
provisions of the Bill in order to determine the extent to which they
substantially affect functional areas listed in Schedule 4 and not on whether
any of its provisions are incidental to its substance. The test for tagging must be
informed by its purpose. Tagging is not concerned with determining the sphere
 of government that has the competence to legislate on a matter. Nor is the
process concerned with preventing interference in the legislative competence
of another sphere of government. The process is concerned with the question
of how the Bill should be considered by the provinces and in the NCOP, and
how a Bill must be considered by the provincial legislatures depends on
whether it affects the provinces. The more it affects the interests, concerns and
capacities of the provinces, the more say the provinces should have on its
content.381

The purpose of tagging, therefore, is to determine the nature and extent

of the input of provinces (through the NCOP) on the contents of
legislation affecting them. Tagging also determines whether the Bill
should be passed with a simple majority or according to special
procedures with a super majority. Because the Constitution attaches
considerable importance to the voice of the provinces in legislation
affecting them, tagging is pivotal. This is because – as we show
elsewhere – depending how a Bill is tagged, the NCOP will either have
more or less power in the passing of the Bill.
Tagging also reflects the fact that government under our
Constitution ‘is constituted as national, provincial and local spheres of
government which are distinctive, interdependent and interrelated’.382
As we shall see in chapter 8 of this book, legislative functions between
the national and provincial spheres of government are not rigidly
assigned to each sphere and many important functions are shared. This
requires co-operation between the various spheres of government
which ‘include the requirement that each sphere of government must
“respect the constitutional status, institutions, powers and functions of
government in the other spheres” and “co-operate with one another in
mutual trust and good faith by … co-ordinating their actions and
legislation with one another”.’ 383 As the NCOP helps to facilitate co-
operative government in the law-making process, it should be accorded
the requisite respect by ensuring that Bills are tagged in the correct
manner.
As mentioned above, Bills can be tagged in at least four different
ways after which different requirements apply to the passing of the Bill
depending on how it was tagged. First, a Bill can be tagged as a section
74 Bill because it is a Bill amending the Constitution. Section 74 Bills
require special procedures to be adhered to. Special majorities are also
required to pass the Bill to protect the Constitution from being
amended too easily. Section 1 – which contains the founding provisions
of the Constitution – can only be changed with the support of 75% of the
members of the NA and the support of at least six of the nine provincial
delegations to the NCOP.384
Bills amending the Bill of Rights can only be changed with the
support of two thirds of the members of the NA and six of the nine
provincial delegations in the NCOP.385
Any other provision of the Constitution may be amended by a Bill
passed by the NA with a supporting vote of at least two thirds of its
members. The support of six of the provincial delegations to the NCOP
is not required for these ordinary amendments to the Constitution
unless the proposed amendment ‘(i) relates to a matter that affects the
[NCOP]; (ii) alters provincial boundaries, powers, functions or
institutions; or (iii) amends a provision that deals specifically with a
provincial matter’.386
To protect the powers and functions of individual provinces in the
case of a Bill that concerns only a specific province or provinces, the
NCOP may not pass the Bill or the relevant part unless it has been
approved by the legislature or legislatures of the province or provinces
concerned.387 This means that a Bill that would amend the provincial
boundary between, for example, Limpopo Province and Mpumalanga
can only be passed with the approval of both the legislatures of
Limpopo and Mpumalanga and only if, in addition to this, six of the
nine provincial delegations support the amendment.
Second, Bills can be tagged as section 75 Bills or ordinary Bills that
do not affect the Provinces. When a Bill is tagged as a section 75 Bill it
can only be introduced in the NA (not in the NCOP).388 Once passed by
the NA, the NCOP must vote on the Bill but, in this case, members of the
NCOP do not vote by delegation. Instead, in terms of section 75(2) of
the Constitution, each delegate in a provincial delegation has one vote
and the question is decided by a majority of votes cast subject to a
quorum of one third of the delegates being present.
The NCOP can pass the Bill, pass the Bill subject to amendments
proposed by it or reject the Bill.389 If the NCOP passes the Bill without
proposing amendments, the Bill must be submitted to the President for
assent. If the NCOP rejects the Bill or passes it subject to amendments,
the NA must reconsider the Bill, taking into account any amendment
proposed by the NCOP. Because it is a section 75 Bill that does not affect
the provinces, the NA has the power to override the NCOP amendments
by passing the original Bill in the normal manner. In this case, the
amendments made by the NCOP will fall away and the original Bill
passed by the NA will be sent to the President for assent.
However, the NA may decide to endorse the amendments made by
the NCOP by passing the same version passed by the NCOP. In this case,
the Bill with the NCOP amendments will be sent to the President.
Alternatively, the NA may decide not to proceed with the Bill at all. In
this case, the Bill will lapse and will not become law.390
When considering these procedures it is important to note the
differences between the legislative process to be followed when a Bill is
tagged as a section 75 Bill and when it is tagged as a section 76 Bill and
the relatively powerful role of the NA in the passing of the former
compared to the latter. The most important difference is that a section
75 Bill can, in effect, be passed by the NA without support by the NCOP.
This would become important if the majority party in the NA does not
enjoy a majority in the NCOP, for example when less than 45 of the
delegates in the NCOP are from the majority party. The second House
could then conceivably try to obstruct the legislative programme of the
majority party in the NA, something – as we shall see – that it may be
able to do with section 76 Bills but not with section 75 Bills. This is
because the NCOP represents the interest of the provinces in
Parliament and will play a much more powerful role in the passing of
legislation in cases where the draft legislation affects the provinces.
Third, Bills can be tagged as section 76 Bills or ordinary Bills
affecting the provinces. A Bill will be tagged in this way if it falls within a
functional area listed in Schedule 4 of the Constitution or provides for
legislation envisaged in particular sections of the Constitution.391 It will
also be tagged as a section 76 Bill if it purports to intervene in Schedule
5 matters (in terms of section 44(2)) and other financial matters
affecting the Provinces.392 A Bill dealing with the seat of Parliament must
be similarly tagged.393 If the provisions of a Bill in substantial measure
fall within the functional area listed in Schedule 4, it will be dealt with
under section 76.394
Tagging a Bill as a section 76 Bill is important as this gives more
weight to the position of the NCOP in the passing of the Bill. Unlike with
a section 75 Bill, the Bill can be introduced in either the NA or the
NCOP. Once the Bill has been passed in the House in which it was
introduced, either the NA or the NCOP (the first House), it is sent to the
other House (the second House) to pass, amend or reject it. If the
second House passes the Bill without amendment, the Bill must be
submitted to the President for assent. If the Bill is passed by the second
House with amendments, it must be referred back to the first House
which passed it. If that House passes the amended Bill, it must be
submitted to the President for assent. However, if the second House
which considers the Bill rejects the Bill, or if the first House which
passed the Bill refuses to pass an amended Bill referred back to it, the
Bill and, where applicable, also the amended Bill, must be referred to a
Mediation Committee.395
The Mediation Committee is designed as a mechanism to try to
reconcile differences between the two Houses of Parliament in line with
the principle of co-operative government. It consists, first, of nine
members of the NA elected by the NA. Each political party with seats in
the Assembly is proportionally represented on the Committee. Second,
there are another nine delegates – one from each provincial delegation
in the NCOP. In effect, these delegates are from the political party with a
majority of delegates in the NCOP delegation.396
The Mediation Committee can only make a decision if at least five of
the representatives of the NA and at least five of the representatives of
the NCOP agree to support it.397 The Mediation Committee can agree to
support the Bill as passed by the NA, the amended Bill as passed by the
NCOP or its own version of the Bill.398 If the Mediation Committee is
unable to agree on any of these options within 30 days of the Bill’s
referral to it, the Bill will lapse unless the Bill was first passed by the NA
and the NA again passes the original Bill, but with a supporting vote of
at least two thirds of its members.399 This means that it is important
whether the Bill was first introduced in the NA or the NCOP. Bills first
introduced in the NCOP cannot ever be passed over the objections of
the NCOP with a two-thirds majority in the NA as would be the case if a
Bill was first introduced and passed in the NA.
If the Mediation Committee approves a version of the Bill first
passed by the NA, it must be referred to the NCOP for approval. If it
approves a version of the Bill first passed by the NCOP, it must be
referred to the NA for approval. However, if the Mediation Committee
agrees on its own version of the Bill, that version of the Bill must be
referred to both the NA and the NCOP. If it is passed a second time by
the NA and/or the NCOP in accordance with the procedure set out
above, it must be submitted to the President for assent. Once again, the
NA has an override power if it supports a Bill with a two-thirds majority
in the event that the Bill was introduced in the NA and the NCOP has
not supported the decision of the Mediation Committee. The NCOP
does not have the same override power. In practice, it would be unlikely
that the NA would be able to achieve a two-thirds majority to override
the opposition of such a Bill in the NCOP. This means that as far as
section 76 Bills are concerned, the NCOP is in a far more powerful
position to influence or even block legislation supported by the NA than
is the case with section 75 Bills. This is because the NCOP represents the
interest of the provinces in the national Parliament.
These rather complicated mechanisms are aimed at facilitating co-
operation and seeking consensus between the two Houses of
Parliament in line with the principle of co-operative government. They
also ensure that the NA, with its 400 members representing the various
political parties proportionally to their electoral strength, would not be
able to ride roughshod over the NCOP whose delegates are equally
divided between all provinces. In essence, this means that provincial
delegations with fewer voters have the same power as provincial
delegations of large provinces.

What happens when the NA and NCOP are

controlled by different majority parties?
The section 76 mechanism for passing ordinary
legislation affecting the provinces will probably only
 become important in a case where one political party
or a coalition of parties controls the NA while that party
or coalition does not control the NCOP. This may
happen if the majority party gains a substantial
proportion of the votes in large provinces but loses its
majority support in at least five provinces, which will
then be governed by another political party or a
coalition of political parties.
For example, the governing party could win 53% of
the vote nationally. This will entitle it to 53% of the
seats in the NA and its leader will be elected
President. This President will appoint a Cabinet,
usually from among the members of the winning party.
However, if an opposition party wins 40% of the vote
nationally, it will be entitled to only 40% of the seats in
the NA. It may nevertheless have garnered a majority of
support in five provinces, giving it control of five of the
nine delegations to the NCOP. If a section 76 Bill is
now proposed by the Cabinet and supported by the
53% of members of the majority party in the NA, it will
not be passed into law unless the opposition party
agrees to it as it would control five of the nine
provincial delegation votes and would, in effect, be
able to veto the Bill.

Fourth, section 77 or money Bills require different procedures for their

passing. 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.400 The most important money Bill
is the annual budget introduced by the Minister of Finance in the NA.
Such a Bill will then be passed in accordance with the procedure laid
down in section 75, as discussed above.
 However, special procedures apply to the amendment of a money
Bill by Parliament. As the Constitution stipulates,401 these procedures
are set down in the Money Bills Amendment Procedure and Related
Matters Act.402 The special procedures are necessary because the budget
is a highly technical and complex Bill prepared in conjunction with the
technical experts of the Treasury and it could create financial
uncertainty and unintended consequences if Parliament were allowed
to amend the budget in the same way as it is allowed to amend other
pieces of legislation.
Once a Bill has been passed in the prescribed manner, either in
terms of sections 74, 75, 76 or 77, the Bill must be sent to the President
for his or her assent as envisaged in section 79 of the Constitution. In
terms of section 79(1) of the Constitution, the President may refer a Bill
back to the NA for reconsideration if he or she has reservations about its
constitutionality. If the President has reservations about the
constitutionality of the Bill, he or she must specify what these
reservations are when he or she refers a Bill back to Parliament.403 As
noted above, the President does not have a general power to veto a Bill
duly passed by Parliament because he or she does not agree politically
with any provisions in the Bill or because his or her conscience would
require him or her not to sign the Bill into law. As all constitutional
obligations must be performed diligently and without delay,404 the
President is required to sign a Bill duly passed by Parliament within a
reasonable time. If the President refers the Bill back to Parliament
owing to concerns about its constitutionality, Parliament can address
the President’s concerns. If the reconsidered Bill fully accommodates
the President’s reservations, then he or she must sign it. If not, the
President may, pursuant to section 79(4) of the Constitution, refer the
Bill to the Constitutional Court for a decision on its constitutionality.
The President is empowered to refer a matter to the Constitutional
Court in terms of section 79 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.405 If
the Constitutional Court decides that the Bill is constitutional, the
President must assent to and sign it as envisaged in section 79(5).
In Ex Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill,406 the Constitutional Court spelt out,
first, the circumstances under which the President is allowed to refer a
Bill to the Constitutional Court, and, second, the scope of the Court’s
power to consider the constitutionality of the Bill. There were three
main questions that the Constitutional Court had to consider in this
judgment, namely:
• whether the Court was required to consider only the reservations
that the President had expressed, or whether it could and should
direct its attention more widely
• whether the Court, in determining the Bill’s ‘constitutionality’,
should examine every provision of the Bill so as to certify
conclusively that in every part it accords with the Constitution
• whether the Court’s finding regarding the Bill’s constitutionality or
otherwise precludes or restricts later constitutional adjudication
regarding its provisions once enacted.407

The Constitutional Court found that it need only consider the

reservation that the President has expressed when he or she refers to
Bill to the Constitutional Court. Since the Constitutional Court need
only consider reservations expressly specified by the President
regarding the Bill’s constitutionality, it does not have to consider the Bill
in its entirety to determine its constitutionality by examining each and
every provision. The Court also found that the decision regarding the
constitutionality of the Bill does not preclude future constitutional
adjudication regarding its provisions once enacted, except those
provisions already determined during the consideration of the
President’s reservation.408 The Court left open whether it could in such
proceedings consider the constitutionality of provisions not referred to
by the President which are in obvious conflict with the Constitution.409
Even after a Bill has been duly passed by Parliament and signed into
law by the President, after which the Bill becomes known as an Act of
Parliament, the constitutionality of the Act can be challenged if a
sufficient number of MPs applies to the Constitutional Court for an
order declaring that all or part of an Act of Parliament is
unconstitutional.410 Such application can only be launched if it is
supported by at least one third of the members of the NA and if it is
made within 30 days of the date on which the President assented to and
signed the Act.411 The Constitutional Court is given the power to stall the
implementation of the Act referred to it in this manner and can order
that all or part of an Act that is the subject of an application has no force
until the Court has decided the application, but only if the interests of
justice require this and the application has a reasonable prospect of
success.412

4.6.6 Delegation of legislative powers to executive or other

legislatures
According to section 44(1)(a)(iii) of the Constitution, Parliament may
assign its legislative authority, except the power to amend the
Constitution, to any legislative body in another sphere of government.
This power relates to the assignment of power to other legislative
spheres of government. It is therefore explicitly provided in the
Constitution that Parliament is allowed to assign its law-making power,
except the power to amend the Constitution, to provincial legislative
and municipal councils. Where the national Parliament is of the view
that a certain issue may be better dealt with by provincial legislatures, it
may therefore explicitly empower such legislatures to enact legislation
on that topic even if the topic falls outside the exclusive or concurrent
functional areas in which provincial legislatures have the competence
to legislate.
A more difficult question arises where Parliament delegates its law-
making powers to the executive. This kind of delegation is not unusual
as Parliament is not always well equipped to formulate detailed
provisions regarding the implementation and regulation of laws. In
Executive Council of the Western Cape Legislature and Others v President
of the Republic of South Africa and Others, the Constitutional 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 delegating such legislative functions to other
bodies into the Constitution.413
However, there are limits to what kind of law-making powers can be
delegated and to whom.414 In Executive Council of the Western Cape
Legislature, the Constitutional Court stated that although there is
nothing in the Constitution which prohibits Parliament from delegating
subordinate regulatory authority to other bodies, there is ‘a difference
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 …’ 415 The question
in each case would be whether, given the structure of the Constitution
and the relevant empowering text, the Constitution permits a
delegation of such law-making power or not. The Constitution uses a
range of expressions when it confers legislative power on Parliament
and the wording used will often give an indication of whether
delegations would be permissible. As Ngcobo stated in Executive
Council of the Province of the Western Cape v Minister for Provincial
Affairs and Constitutional Development, Executive Council of KwaZulu-
Natal v President of the Republic of South Africa:
Sometimes [the Constitution] states that ‘national legislation must’; at other
times it states that something will be dealt with ‘as determined by national
legislation’; and at other times it uses the formulation ‘national legislation
may’. Where one of the first two formulations is used, it seems to me to be a
strong indication that the legislative power may not be delegated by the
Legislature, although this will of course also depend upon context.416

The text of the relevant empowering provision of the Constitution must

be read in context and we should consider factors that flow from the
nature of the Constitution, its structure and scheme. To this end, as
stated by the Constitutional Court in 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, we must consider ‘the nature and extent of the delegation’.417
 We must keep in mind that the primary reason for delegation is to
ensure that the legislature is not overwhelmed by the need to determine
minor regulatory details. Delegation relieves Parliament from dealing
with detailed provisions that are often required for the purpose of
implementing and regulating laws and is necessary for effective law
making. However, we must draw a distinction between delegation to
make subordinate legislation within the framework of an empowering
statute and ‘assigning plenary legislative powers to another body’.418
Where the doctrine of parliamentary sovereignty governs, Parliament
may delegate as much power as it chooses. In a constitutional
democracy, however, such as that operating in South Africa, Parliament
may not ordinarily delegate its ‘essential legislative functions’ to the
executive.419 This means that Parliament can delegate some of its
powers to the executive, most notably through delegating the power to
make regulations in terms of legislation passed by Parliament to
individual Ministers or to the President. However, Parliament may not
delegate its plenary legislative power, that is, the power to make original
legislation, to an executive authority such as the President or a Cabinet
Minister as such a delegation will breach the separation of powers
doctrine.420 It may only delegate the power to make subordinate
legislation such as proclamations and regulations.421 This distinction
between original and subordinate legislation is drawn from the fact that
when Parliament makes legislation, it does so in accordance with the
‘original’ legislative powers conferred on it by the Constitution.
However, the development of legislation, such as proclamations, by the
executive refers to the law that is made by virtue of the power granted
from a lawful source, such as the Constitution.422 Thus, although the
separation of powers doctrine does not allow one branch of
government to exercise a power exclusively allocated to another branch
of government, it can exercise powers delegated to it by another branch
as long as this power is not exclusively reserved for the other branch of
government.
The question whether Parliament can assign its law-making power
to the executive was first answered in the case of Executive Council of
the Western Cape Legislature. This case involved section 16A(1) of the
Local Government Transition Act 423 that aimed to transform local
government in line with the new constitutional dispensation. This
section provided that ‘the President may amend this Act and any
schedule thereto by proclamation in the gazette’. This section therefore
effectively conferred on the President, the head of the executive branch
of government in the national sphere of government, the power to
amend the Act by proclamation. The President used this power to
transfer certain functions provided for in the Act from the provincial to
the national sphere of government. The Executive Council of the
Western Cape Legislature challenged the constitutionality of this
section and the relevant proclamation on the basis that Parliament
cannot delegate its law-making function to the executive. Chaskalson P,
as he then was, held:
[t]he legislative authority vested in Parliament under section 37 of the [interim]
Constitution is expressed in wide terms – ‘to make laws for the Republic in
accordance with this Constitution’. 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. There is
nothing in the Constitution which prohibits Parliament from delegating
subordinate regulatory authority to other bodies. The power to do so is
necessary for effective law-making. It is implicit in the power to make law for
the country and I have no doubt that under our Constitution parliament can
pass legislation delegating such legislative functions to other bodies. There is,
however, a difference 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.424

The Court then decided in this case that it was inconsistent with the
doctrine of separation of powers for Parliament to delegate the power to
amend its laws to the President as head of the executive.425 It argued that
although the need for assignment of subordinate legislative authority
cannot be over-emphasised, the assignment of plenary legislative
powers is a different matter alltogether. This is not allowed under the
new constitutional dispensation as it could give rise to a constitutional
crisis. The Court indicated that the relevant constitutional provision
which deals with legislative authority is not merely directive but is
peremptory. It therefore cannot be said that the power to delegate
primary legislative power is implied in the Constitution. Therefore,
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. The
position is the same under the 1996 Constitution.426

Parliament cannot delegate its plenary law-

making power to the President
In Justice Alliance, the Constitutional Court confirmed
the view that Parliament cannot delegate its plenary law-
making power to the President. The Court stated that
one should look at both textual and contextual
indicators to determine whether such a drastic
delegation would be permitted in terms of the
separation of powers doctrine.
Section 176(1) of the Constitution states that the
term of office for a Constitutional Court judge is
normally 12 years ‘except where an Act of Parliament
extends the term of office of a Constitutional Court
judge’. Parliament had passed section 8(a) of the
Judges’ Remuneration and Conditions of Employment
Act427 which permitted the further extension of the term
of office of the Chief Justice if requested to do so by
the President. The President had then relied on this
section in an attempt to extend the term of office of
the former Chief Justice, Sandile Ngcobo. The section
on which the President relied was then challenged in
Court which declared it unconstitutional. The Court
confirmed that where the doctrine of parliamentary
sovereignty governs, Parliament may delegate as much
power as it chooses. However, in a constitutional
democracy, Parliament may not ordinarily delegate its
essential legislative functions, one of which would be
to delegate the power to extend the term of office of
the Chief Justice to the President.
The Court provided several reasons for this view. In
this case, the power to extend the term of a
Constitutional Court judge goes to the core of the
tenure of the judicial office, judicial independence and
the separation of powers. It was therefore deemed to
be an essential legislative function that could not be
delegated.428 The independence of its judges is given
vigorous protection by means of detailed and specific
provisions regulating their appointment. The Chief
Justice is at the pinnacle of the judiciary and thus the
protection of his or her independence is just as
important.429 Section 8(a) thus violated the
requirement for judicial independence as well as the
principle of separation of powers. This does not mean
that the term of office of judges of the Constitutional
Court could not be extended by Parliament in
accordance with section 176(1). However, if
Parliament wished to do so, it would have to pass
legislation providing for such an extension that applied
to all judges of the Constitutional Court.430
Apart from the legal point about the limits of the
power of Parliament to delegate its legislative powers
to the executive, this case also illustrates the need of
members of the legislature and the executive to follow
the correct legal route when they take action in terms
of the Constitution and the law. Had Parliament passed
a law extending the term of office of all Constitutional
Court judges to 15 years, there would not have been a
successful challenge to the move and the then Chief
Justice would have been able to serve as Chief Justice
for another three years.
SUMMARY

The Constitution establishes a bicameral Parliament consisting of two

Houses. The National Assembly (NA) is the directly elected House of
Parliament representing the interests of all the people, to which MPs are
elected in terms of a pure proportional representation electoral
system. The National Council of Provinces (NCOP) is the indirectly
selected House of Parliament representing the interests of the various
provinces in the national Parliament. The NCOP comprises provincial
delegations consisting of six permanent delegates appointed by each of
the provincial legislatures and four special delegates nominated from
among the members of each of the provincial legislatures.
The two Houses of Parliament together provide a forum for debate
on important issues; hold the executive organs of state in the national
sphere of government accountable to Parliament; exercise an oversight
function over the exercise of national authority and over other organs of
state; and pass national legislation. The NA is the more prominent and
powerful of the two Houses because it is directly elected and because it
elects and can also dismiss the President and the other members of the
executive. The NA therefore has more power to hold the executive
accountable than the NCOP.
Members of Parliament (MPs) enjoy important rights and privileges
to protect their ability to take part in the various functions of Parliament
without fear of legal sanction. MPs enjoy the right to freedom of
expression in Parliament and in the various committees of Parliament
and are insulated from the law of defamation.
The various committees of Parliament – especially the various
portfolio committees that focus on the work associated with a specific
government department – are seen as the engine room of Parliament.
Although members of the NA and the NCOP can ask questions of
members of the Executive and have a right to have their questions
answered, either orally in each of the Houses or in written form,
portfolio committees can call members of the executive and
departmental officials to testify before them to oversee the work of the
individual departments and to hold the members of the executive
accountable.
Legislation is normally formulated by the relevant government
department on the initiative of the Minister involved and then
submitted to Parliament for consideration. MPs can also formulate Bills,
but in the past this seldom happened. Even where members of
opposition parties formulate and table Bills, such Bills have only a small
chance of being adopted by Parliament because the majority party in
Parliament will normally only support legislation in accordance with its
own programme and policies. Without support from the majority party,
Bills cannot be passed.
Once legislation is tabled in Parliament (after being approved by the
Cabinet), discussions on the details of such Bills tabled in Parliament
occur in portfolio committees who have the power to amend the draft
legislation before it is sent to the NA and the NCOP for approval. During
this process, members of the public have an important right to
participate in the law-making process and can make written and
sometimes oral submissions to the various portfolio committees about
draft legislation.
Arguably, the most important power of Parliament is the power to
pass legislation. Bills must be tagged by a Joint Tagging Mechanism to
determine how Parliament will procedurally deal with the passing of
the draft legislation. Once portfolio committees have processed Bills,
each of the Houses of Parliament must consider and vote on a Bill. The
Constitution prescribes different procedures to be followed for the
passing of Bills that have been tagged as section 74, 75, 76 and 77 Bills.
The Constitution also requires that Bills amending the Constitution can
only be passed by enhanced majorities. 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 about the constitutionality of the Bill are valid or not.
1 2016 (5) BCLR 618 (CC) para 22.
2 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others 2016 (5) BCLR 618 (CC) at para 22.
3 See s 42(1) of the Constitution.
4 Currie, I and De Waal, J (eds) (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 133.
5 Rautenbach, IM and Malherbe, EFJ (2009) Constitutional Law 5th ed 122.
6 Currie and De Waal (2001) 133. See generally Ackerman, B (2000) The new separation of
powers Harvard Law Review 113(3):633–729 at 682. According to Ackerman, the second
House ‘may enhance the deliberative character of political life’.
7 S 42(3) of the Constitution.
8 S 42(4) of the Constitution.
9 S 86 of the Constitution.
10 Ss 89 and 102 of the Constitution.
11 S 91(3) of the Constitution.
12 S 55(2) of the Constitution.
13 S 193(4) of the Constitution.
14 S 42(6) of the Constitution.
15 In terms of s 76(5) of the Constitution, an absolute majority of members of the NA – that is
200 or more of its members – is required to pass such legislation.
16 S 51(3) of the Constitution.
17 S 63(3) of the Constitution.
18 Currie and De Waal (2001) 131.
19 See Basson, DA and Viljoen, HP (1988) South African Constitutional Law 86–7.
20 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 186.
21 It is true that s 1(d) of the Constitution states that the Republic of South Africa is a
democratic state founded on, inter alia, a multi-party system of government and that
several other provisions in the Constitution recognise the role of political parties in the
legislative and executive process. However, the exact relationship between the
representatives of political parties in the legislature and the executive on the one hand and
the party leadership on the other hand is never defined. S 19 guarantees for everyone the
rights to form a political party; to participate in the activities of, or recruit members for, a
political party; and to campaign for a political party or cause. S 57(2)(c) states that the rules
of the NA must provide for financial and administrative assistance to each party
represented in the Assembly in proportion to its representation to enable the party and its
leader to perform their functions in the NA effectively. S 57(2)(d) requires that the NA rules
must recognise the leader of the largest opposition party in the Assembly as the Leader of
the Opposition.
22 (CCT89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017).
23 United Democratic Movement para 79.
24 United Democratic Movement para 78.
25 United Democratic Movement para 79.
26 2013 (2) BCLR 202 (CC).
27 Ramakatsa para 16. See also Dube and Others v Zikalala and Others [2017] 4 All SA 365
(KZP) when the Pietermaritzburg High Court: KZN declared the provincial elective
conference of the African National Congress unlawful.
28 S 46(1)(d) of the Constitution.
29 See De Vos, P (2015) It’s my party (and I’ll do what I want to?): internal party democracy
and section 19 of the South African Constitution SAJHR 31:30–55.
30 See ss 86, 89 and especially 102 of the Constitution.
31 Hiebert, JL ‘Constitutional experimentation: Rethinking how a Bill of Rights functions’ in
Ginsburg, T and Dixon, R (eds) (2011) Comparative Constitutional Law 307.
32 The disciplinary case lodged against former ANC Youth League leader, Julius Malema, and
his ultimate expulsion from the ANC illustrates the governing party’s insistence on party
discipline. See Mthembu, J (2012, 4 February) ANC statement on the National Disciplinary
Committee of appeal today, available at https://www.polity.org.za/article/anc-statement-
by-jackson-mthembu-african-national-congress-spokesperson-on-the-national-
disciplinary-committe-of-appeal-process-04022012-2012-02-04.
33 Requiring members to toe the party line on a particular vote on pain of sanction or
disciplinary proceedings is often referred to as a ‘three line whip’.
34 African National Congress Constitution, as amended and adopted at the 52nd National
Conference, Polokwane, 2007, available at
https://www.sahistory.org.za/sites/default/files/constit_amend.pdf.
35 S 25.3 of the African National Congress Constitution.
36 Hlongwane, S (2012, 4 May) ANC vs Turok, Borman: Damned if you do, damned if you
don’t Daily Maverick, accessed on 6 February 2020 at
https://www.dailymaverick.co.za/article/2012-05-04-anc-vs-turok-borman-damned-if-
you-do-damned-if-you-dont/.
37 ‘Outspoken and committed’: SA mourns ANC veteran Ben Turok, City Press, 9 December
2019, accessed on 6 February 2020 at https://city-press.news24.com/News/outspoken-
and-committed-sa-mourns-anc-veteran-ben-turok-20191209.
38 Herman, P (2017, 14 August) Majority of ANC MPs have chosen to ‘continue reign of
kleptocracy’ – Khoza, accessed on 12 February 2019 at
https://www.news24.com/SouthAfrica/News/majority-of-anc-mps-have-chosen-to-
continue-reign-of-kleptocracy-khoza-20170814.
39 Ss 57(1) and 70(1) of the Constitution.
40 S 45 of the Constitution.
41 Ss 57 and 70 of the Constitution.
42 Ss 57(2) and 70(2) of the Constitution.
43 See generally Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly (CCT
16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October 2012) and
also Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC);
2013 (11) BCLR 1297 (CC) (27 August 2013).
44 See Economic Freedom Fighters and Others v Speaker of the National Assembly and Another
(CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December
2017) in which the Court found that the failure by the NA to make rules regulating the
removal of a President in terms of section 89(1) of the Constitution constitutes a violation
of this section and is invalid and ordered the NA to make such rules without delay.
45 Ss 56 and 69 of the Constitution.
 Parliament of the Republic of South Africa (2011, June) Rules of the National Assembly 7th
46
ed, available at http://www.pmg.org.za/files/doc/2012/NA%20Rules%207th%20edition-
1.pdf. Parliament of the Republic of South Africa (2016, 26 May) Rules of the National
Assembly 9th ed, available at
https://www.parliament.gov.za/storage/app/media/Rules/NA/2016-09-
28_NA_RULES.pdf.
47 Rule 325(1). The Rules of the National Council of Provinces 9th ed (2008, March), available at
https://www.parliament.gov.za/storage/app/media/Rules/NCOP/Rules_of_NCOP_9th_ed
ition.pdf, do not contain a similar provision and merely state in Rule 103 that:
(1) For the purposes of performing its functions a committee may, subject to the
Constitution, legislation, the other provisions of these Rules and resolutions of the
Council –
(a) summon any person to appear before it to give evidence on oath or affirmation,
or to produce documents;
(b) receive petitions, representations or submissions from interested persons or
institutions;
(c) conduct public hearings;
(d) permit oral evidence, representations and submissions;
(e) determine its own procedure;
(f) meet at a venue determined by it, which may be a venue beyond the seat of
Parliament if the Council is not in session.
48 Primedia Broadcasting (a division of Primedia (Pty) Ltd) and Others v Speaker of the
National Assembly and Others (784/2015) [2016] ZASCA 142; [2016] 4 All SA 793 (SCA);
2017 (1) SA 572 (SCA) (29 September 2016) at para 1.
49 Ss 59(1)(b) and 72(1)(b) of the Constitution.
50 Primedia para 29.
51 [2006] ZACC 11; 2006 (6) SA 416 (CC) para 137 and 138.
52 Ss 59(1)(b) and 72(1)(b) of the Constitution.
53 (784/2015) [2016] ZASCA 142; [2016] 4 All SA 793 (SCA); 2017 (1) SA 572 (SCA) (29
September 2016).
54 Primedia para 31.
55 Ss 59(2) and 72(2) of the Constitution.
56 The Rules of the NCOP also allow for certain limitations of public access to its committees.
Rule 110(1) affirms that:
[m]eetings of committees and subcommittees are open to the public, including the media,
and the member presiding may not exclude the public, including the media, from the
meeting, except when –
(a) legislation, these Rules or resolutions of the Council provide for the committee or
subcommittee to meet in closed session; or
(b) the committee or subcommittee is considering a matter which is:
(i) of a private nature that is prejudicial to a particular person;
(ii) protected under parliamentary privilege, or for any other reason privileged in
terms of the law;
(iii) confidential in terms of legislation; or
(iv) of such a nature that its confidential treatment is for any other reason reasonable
and justifiable in an open and democratic society.
57 2017 (1) SA 572 (SCA).
58 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 300 (per Yacoob J dissenting) speaking not about the ‘public involvement’
requirements common to ss 59, 72 and 118 of the Constitution and which were central to
the matter before the court (at least in so far as s 118 was concerned), but rather about the
‘public access’ requirements common to the same sections.
59 Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC).
60 See Rautenbach and Malherbe (2009) 147.
61 Griffith, JAG, Ryle, M and Wheeler-Booth, MAJ (1989) Parliament: Functions, Practice and
Procedures 85.
62 (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August 2006).
63 Act 117 of 1998. S 28(1) of the Municipal Structures Act provides that:
[pr]ovincial legislation in terms of section 161 of the Constitution must provide at least –
(a) that councillors have freedom of speech in a municipal council and in its committees,
subject to the relevant council’s rules and orders as envisaged in section 160(6) of the
Constitution; and
(b) that councillors are not liable to civil or criminal proceedings, arrest, imprisonment or
damages for –
(i) anything that they have said in, produced before or submitted to the council or
any of its committees; or
(ii) anything revealed as a result of anything that they have said in, produced before
or submitted to the council or any of its committees’.
Section 28(2) goes on to provide that ‘[u]ntil provincial legislation contemplated in
subsection (1) has been enacted the privileges referred to in paragraphs (a) and (b) of
subsection (1) will apply to all municipal councils in the province concerned’.
64 Dikoko v Mokhatla 2006 (6) SA 235 (CC) para 39.
65 Hatsell, J (1818) Precedents of Proceedings in the House of Commons Vol 1–2.
66 R v Paty (Case of the Men of Aylesbury) (1704) 2 Lord Raym 1105, 91 ER 817.
67 Ss 58(1)(a) and 71(1)(a) of the Constitution. See also NA Rule 44 and NCOP Rule 30.
68 Ss 58(1)(b) and 71(1)(b) of the Constitution read with NA Rule 44(2) and NCOP Rule 30(b).
69 (297/98) [1999] ZASCA 50; [1999] 4 All SA 241 (A) (26 August 1999).
70 De Lille (SCA) paras 2–3.
71 De Lille (SCA) para 8.
72 De Lille (SCA) para 9.
73 De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C).
74 Act 91 of 1963. This Act has been repealed and replaced with the Powers, Privileges and
Immunities of Parliament and Provincial Legislatures Act 4 of 2004.
75 De Lille (HC) para 25.
76 De Lille (HC) para 33.
77 De Lille (HC) paras 37–8.
78 De Lille SCA. See also O’Regan, K (2005) Checks and balances: Reflections on the
development of the doctrine of separation of powers under the South African Constitution
Potchefstroom Electronic Law Journal 8(1):120–50 at 132–3.
79 De Lille (SCA) para 20.
80 A similar provision regarding the NCOP can be found in s 71(2).
81 De Lille (SCA) para 17.
82 De Lille (SCA) para 29.
83 De Lille (SCA) para 29–30.
84 NA Rules 70–4.
85 2016 (3) SA 487 (CC) quoted in Malema and Another v Chairman of the National Council of
Provinces and Another 2015 (4) SA 145 (WCC) para 25.
86 Democratic Alliance para 41.
87 Democratic Alliance para 121.
88 Democratic Alliance para 118.
89 Democratic Alliance paras 41 and 42.
90 Democratic Alliance para 31.
91 Democratic Alliance para 42.
92 Democratic Alliance para 51.
93 Democratic Alliance para 44.
94 See De Vos, P (2020, 12 February) Neither SONA nor any disruption will improve the
quality of governance in South Africa Constitutionally Speaking, accessed on 20 February
2020 at https://constitutionallyspeaking.co.za/neither-sona-nor-any-disruption-will-
improve-the-quality-of-governance-in-south-africa/.
95 Democratic Alliance para 38.
96 Ss 59(1)(a) and 72(1)(a) of the Constitution.
97 Houston, G, Liebenberg, I and Dichaba, W ‘The social dynamics of public participation in
legislative processes in South Africa’ in Houston, G (ed) (2001) Public Participation in
Democratic Governance in South Africa 142.
98 See generally Hassen, E (1998) The Soul of a Nation: Constitution-Making in South Africa ch
7 on the inclusive and participatory process involved in the drafting of the 1996
Constitution. The process leading up to the adoption of the 1993 Constitution can hardly be
said to have been inclusive and there was little attempt to ensure the participation of the
general public in the constitutional negotiations at CODESA. See also Du Plessis, L and
Corder, H (1994) Understanding South Africa’s Transitional Bill of Rights.
99 Report of the Independent Panel Assessment of Parliament (Govender Report) 53,
available at
https://www.gov.za/sites/default/files/gcis_document/201409/panelassessparl.pdf.
100 See Currie and De Waal (2001) 15 and Roux, T ‘Democracy’ in Woolman, S and Bishop, M
(eds) (RS 5 2013) Constitutional Law of South Africa 2nd ed 10.14.
101 Houston et al (2001) 142.
102 Houston et al (2001) 149.
103 Matatiele Municipality and Others v President of the Republic of South Africa and Others
2007 (1) BCLR 47 (CC); Merafong Demarcation Forum and others v President of the Republic
of South Africa and Others 2008 (10) BCLR 968 (CC); Moutse Demarcation Forum v
President of the Republic of South Africa 2011 (11) BCLR 1158 (CC); Land Access Movement
of South Africa v Chairperson of the National Council of Provinces 2016 (10) BCLR 1277
(CC); and South African Veterinary Association v Speaker of the National Assembly 2019 (2)
BCLR 273 (CC).
104 A similar provision in s 118(1)(a) of the Constitution deals with the need of provincial
legislatures to facilitate public involvement in the law-making process.
105 See Doctors for Life 2006 (6) SA 416 (CC) para 209 where Ngcobo J for the majority held that
‘[t]he obligation to facilitate public involvement is a material part of the law-making
process. It is a requirement of manner and form. Failure to comply with this obligation
renders the resulting legislation invalid’.
106 Doctors for Life para 209.
107 Doctors for Life para 115.
108 Doctors for Life para 116 and para 227 where Sachs J (concurring) stated: ‘Public
involvement in our country has ancient origins and continues to be a strongly creative
characteristic of our democracy. We have developed a rich culture of imbizo, lekgotla,
bosberaad, and indaba. Hardly a day goes by without the holding of consultations and
public participation involving all “stakeholders”, “role-players” and “interested parties”,
whether in the public sector or the private sphere. The principle of consultation and
involvement has become a distinctive part of our national ethos. It is this ethos that informs
a well-defined normative constitutional structure in terms of which the present matter falls
to be decided.’
109 Doctors for Life para 122.
110 Doctors for Life para 122.
111 Doctors for Life para 125.
112 Doctors for Life para 127. See also Khosa and Others v Minister of Social Development and
Others, Mahlaule and Another v Minister of Social Development 2004 (6) SA 505 (CC) para
49 where the Court stated that ‘[i]n dealing with the issue of reasonableness, context is all
important’.
113 Doctors for Life para 128.
114 Doctors for Life para 129.
115 Doctors for Life para 131.
116 (adopted 16 December 1966, entered into force 3 January 1976) 999 UNTS 171.
117 See Czapanskiy, K and Manjoo, R (2008) The right of public participation in the law-making
process and the role of the legislature in the promotion of this right Duke Journal of
Comparative and International Law 19:6.
118 Doctors for Life para 110 (footnotes omitted).
119 Doctors for Life para 278.
120 Doctors for Life para 292.
121 S 42(1). See also Devenish, GE (2005) The South African Constitution 219 and Currie and De
Waal (2001) 133.
122 S 46(1) of the Constitution.
123 S 46(1) and (2) of the Constitution.
124 Act 73 of 1998.
125 S 1(d) of the Constitution.
126 See Rautenbach and Malherbe (2009) 126. For a detailed look at electoral systems and
choices, see generally Reynolds A (1999) Electoral Systems and Democratisation in
Southern Africa.
127 Currie and De Waal (2001) 134.
128 New Nation Movement NPC and Others v President of the Republic of South Africa and
Others (CCT 110/19) [2020] ZACC 11; 2020 (8) BCLR 950 (CC) (11 June 2020).
129 For a brief history of why proportional representation was the electoral system of choice,
see Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 156–8. In
 particular, Klug notes at 158 that ‘the option of proportional representation became a
means to avoid the contentious task of immediate demarcation [into respective
constituencies] and a way to guarantee the effective participation of small parties,
including those with minority ethnic or racially based constituencies’.
130 See Rautenbach and Malherbe (2009) 127.
131 For example, the Democratic Alliance (DA) provides for a complex selection process for
members who stand for public office through an Electoral College, which is not necessarily
a representative body. See Democratic Alliance (2010) Regulations for the Nomination of
Candidates, available at http://www.myvotecounts.org.za/wp-
content/uploads/2019/04/Regulations-for-Nomination-of-Candidates-2019-approved-by-
Fedex-5-May-2018.pdf. It has been argued that section 19 of the Constitution could
possibly be read as imposing a duty on political parties to operate internally according to
democratic principles. See De Vos, P (2015) It’s my party (and I’ll do what I want to)?:
Internal Party democracy and section 19 of the South African Constitution South African
Journal on Human Rights 30–55.
132 Ramakatsa para 73.
133 Ramakatsa para 74. S 19 of the Constitution states:
(1) Every citizen is free to make political choices, which includes the right:
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
134 Ramakatsa para 74.
135 See generally Norris, P (1997) Choosing electoral systems: Proportional, majoritarian and
mixed systems International Political Science Review 18(3):297–312 at 302–4.
136 To gain a seat in the NA, a party has to obtain a minimum number of votes. The minimum
number of votes per seat is determined by dividing the total number of votes cast by the
number of seats plus one. The result, disregarding fractions, then becomes the minimum
number of votes per seat. The formula advantages smaller parties and in 2019, a political
parties obtained one seat in the NA, despite only garnering 0.18% of the vote (usually a
party needs 0.25% to obtain one seat). See table 4.2 below.
137 On the dangers of gerrymandering, see generally Issacharoff, S (2002) Gerrymandering and
political cartels Harvard Law Review 116(2):593–648 at 593.
138 See Rama, K and Lowe Morna, C (2019) Beyond Numbers: Gender Audit of the May 2019
South African Elections 3, accessed on 5 February 2020 at https://genderlinks.org.za/wp-
content/uploads/2019/06/GENDER-IN-2019-SA-ELECTIONS-LR.pdf.
139 Rama and Lowe Morna (2019).
140 Electoral Commission Results Dashboard – National Assembly 2019, accessed on 5
February 2020 at https://www.elections.org.za/NPEDashboard/app/dashboard.html.
141 De Vos, P ‘South Africa’s experience with proportional representation’ in De Ville, J and
Steytler, N (eds) (1996) Voting in 1999: Choosing an Electoral System 29–43.
142 Norris (1997) 306. See generally Matlosa, K (2004) Electoral systems, constitutionalism and
conflict management in Southern Africa African Journal on Conflict Resolution 4(2):11–53
at 34.
143 New Nation NPC para 5.
144 New Nation NPC paras 16–19.
145 New Nation NPC para 20–64.
146 New Nation NPC paras 65–100.
147 New Nation NPC para 17.
148 New Nation NPC para 18.
149 New Nation NPC para 19.
150 See Young, James and Webster v The United Kingdom (1981) 4 EHRR 38 para 52. See also
Sigurjónsson v Iceland (1993) 16 EHRR 462 paras 35–6; and Chassagnou v France (1999) 29
EHRR 615 para 103.
151 New Nation NPC paras 30–37.
152 See Tanganyika Law Society v United Republic of Tanzania; Mtikila v United Republic of
Tanzania n0. 009/2011 ACHPA 2011 para 113.
153 New Nation NPC paras 38–40.
154 New Nation NPC paras 45–6.
155 New Nation NPC para 48.
156 New Nation NPC para 49.
157 New Nation NPC para 60.
158 New Nation NPC paras 52–3
159 New Nation NPC para 54.
160 New Nation NPC para 63.
161 New Nation NPC para 89.
162 New Nation NPC paras 96–9
163 New Nation NPC paras 113–20.
164 New Nation NPC para 124.
165 New Nation NPC para 125.
166 See s 46(1)(c) of the Constitution.
167 S 190(1)(a)–(c) of the Constitution. See also the relevant provisions of the Electoral Act 73 of
1998 and the Local Government: Municipal Electoral Act 27 of 2000.
168 S 181(2) of the Constitution.
169 2001 (3) SA 925 (CC).
170 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 27.
171 1999 (3) SA 191 (CC) para 98.
172 New National Party v Government of the Republic of South Africa and Others 1999 (3) SA
191 (CC) paras 99–100.
173 1999 (3) SA 1 (CC).
174 August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) paras 3 and 20.
175 August para 17.
176 August para 16.
177 New National Party para 11.
178 The changes brought about by the amendment included ss 8(2)(f ), and 24B(1) and (2)
which read as follows:
8(2) The chief electoral officer may not register a person as a voter if that person –
…
(f) is serving a sentence of imprisonment without the option of a fine.
…
 24B(1) In an election for the National Assembly or a provincial legislature, a person who on
election day is in prison and not serving a sentence of imprisonment without the option of
a fine and whose name appears on the voters’ roll for another voting district, is deemed for
that election day to have been registered by his or her name having been entered on the
voters’ roll for the voting district in which he or she is in prison.
24B(2) A person who is in prison on election day may only vote if he or she is not serving a
sentence of imprisonment without the option of a fine.
179 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004).
180 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of
Offenders (NICRO) and Others 2005 (3) SA 280 (CC) paras 39–46.
181 NICRO paras 39–46.
182 NICRO paras 47–51.
183 NICRO para 49.
184 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12
March 2009).
185 (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC) (12
March 2009).
186 Richter v The Minister for Home Affairs and Others 2009 (3) SA 615 (CC) para 108.
187 Richter paras 52–4.
188 AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The
Minister for Home Affairs and Another 2009 (3) SA 649 (CC) paras 56–8.
189 AParty para 59.
190 S 49(1) of the Constitution.
191 S 47(1)(b) of the Constitution.
192 S 47(1)(c) of the Constitution.
193 S 47(1)(d) of the Constitution.
194 S 47(1)(e) of the Constitution.
195 S 47(3)(b) of the Constitution read with NA Rule 37(1) which states that ‘[a] member who
absents himself or herself for 15 or more consecutive sitting days of the Assembly without
authorisation as provided for in these rules, loses his or her membership of the National
Assembly in accordance with Section 47(3)(b) of the Constitution’. Rule 37(2) goes on to
state that ‘[t[he Speaker must without delay inform a member and the member’s party of
the member’s loss of his or her membership of the Assembly in terms of this rule’.
196 See s 47(3)(c) of the Constitution as amended by s 2 of the Constitution Fifteenth
Amendment Act of 2008.
197 S 49(1) of the Constitution.
198 S 49(2) of the Constitution.
199 S 50(2) read with s 49(2) of the Constitution.
200 S 51(1) of the Constitution.
201 S 86(1) and (2) of the Constitution read with NA Rule 8.
202 S 52 of the Constitution read with NA Rules 9 and 13.
203 S 51(1) of the Constitution.
204 S 51(2) of the Constitution.
205 S 51(3) of the Constitution. Sittings and recesses of the NA are covered generally in Chapter
4 of the NA Rules.
206 NA Rule 43.
207 In modern parliamentary systems, however, ‘legislatures have limited responsibility for
making laws. Instead, laws are usually prepared and drafted by the executive and presented
to the legislature for approval. This inevitably means that relatively few laws will emanate
from the legislature itself.’ This is true of South Africa. See Nijzink, L and Murray, C (2002)
Building Representative Democracy: South Africa’s Legislatures and the Constitution 73. See
also Klug (2010) 169.
208 S 55 of the Constitution.
209 See 4.5 below.
210 S 53(1)(a) of the Constitution read with NA Rule 96(a).
211 S 53(1)(b) of the Constitution read with NA Rule 96(b).
212 NA Rule 98.
213 S 53(1)(c) of the Constitution read with NA Rule 97.
214 Ss 74(2)(a) and 89(1) of the Constitution.
215 S 74(1)(a) of the Constitution.
216 S 53(2)(a) of the Constitution.
217 S 53(2)(b) of the Constitution.
218 This is confirmed by NA Rule 115(2).
219 S 55(2) of the Constitution.
220 Currie and De Waal (2001) 142. See also Gauteng Provincial Legislature v Killian and 29
Others 2001 (2) SA 68 (SCA) para 30.
221 See Gauteng Provincial Legislature v Killian and 29 Others 2001 (2) SA 68 (SCA) para 26.
222 United Democratic Movement v Speaker of the National Assembly and Others 2017 (5) SA
300 (CC) para 85.
223 United Democratic Movement para 86.
224 United Democratic Movement para 87.
225 2015 (2) SA 534 (WCC).
226 Tlouamma and Others v Mbete, Speaker of the National Assembly of the Parliament of the
Republic of South Africa and Another 2015 (2) SA 534 (WCC) paras 54–55.
227 Tlouamma para 124.
228 Tlouamma para 142.
229 Tlouamma para 139.
230 Tlouamma para 144.
231 See NA Rules Ch 12.
232 NA Rule 227.
233 NA Rule 154.
234 NA Rule 155.
235 S 42(4) of the Constitution.
236 S 104 of the Constitution.
237 Doctors for Life para 79. See generally Murray, C and Simeon, R (1999) From paper to
practice: The National Council of Provinces after its first year SA Public Law 14(1):96–141 at
98–101 for a discussion on the role of the NCOP.
238 Murray, C and Simeon, R (2006) “Tagging” Bills in Parliament: Section 75 or section 76?
South African Law Journal 123(2):232–63 at 236.
239 Murray and Simeon (2006) 236.
240 Available at https://www.parliament.gov.za/press-releases/parliaments-mid-term-
address-chairperson-national-council-provinces-honourable-thandi-modise (accessed 11
February 2019).
241 Doctors for Life para 80. See also Certification of the Constitution of the Republic of South
Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) para 227; Malherbe, EFJ (1998) The South African National Council of
Provinces: Trojan horse or white elephant? Journal of South African Law 1:77–96 at 82;
Venter, F (2000) Constitutional Comparison: Japan, Germany, Canada and South Africa as
Constitutional States 248.
242 Germany’s Basic Law was drafted in 1949 and the drafters refrained from using the term
‘constitution’ because the Basic Law was drafted to govern a part of Germany for a
transitional period that would last until reunification. On reunification, the Basic Law
would cease to exist and a constitution for all German people would be adopted. On 3
October 1990, German unity was achieved within the framework of the Basic Law. The
Basic Law is now thought of as an all-German Constitution despite the fact that it continues
to go by the name of Basic Law and has come to ‘assume the character of a document
framed to last in perpetuity’. See Kommers, DP (1997) The Constitutional Jurisprudence of
the Federal Republic of Germany 30 and Kommers, DP ‘The Basic Law of the Federal
Republic of Germany: An assessment after forty years’ in Merkel, PH (ed) (1989) The
Federal Republic of Germany at Forty 133 referring to the Basic Law as having taken on ‘the
status of a genuine Constitution’.
243 Art 50 of the Basic Law for the Federal Republic of Germany provides: ‘The Länder
participates through the Bundesrat in the legislation and administration of the Federation.’
244 Doctors for Life para 80 fn 61.
245 BVerfGE 1, 300.
246 See also De Villiers, B (1994) Intergovernmental relations: The duty to co-operate – A
German perspective SA Public Law 9(2):430–7 at 432–3.
247 S 60 of the Constitution.
248 Each province is represented by a single delegation appointed in terms of a formula
prescribed by the Determination of Delegates (National Council of Provinces) Act 69 of
1998 with the aim of ensuring the inclusion of all parties represented in a provincial
legislature on the basis of proportional representation.
249 S 60(2)(a) and (b) of the Constitution.
250 S 60(2)(a) and (b) of the Constitution.
251 S 60(2)(a)(i) and (ii) of the Constitution.
252 S 60(2)(a)(i) of the Constitution.
253 S 60(3) of the Constitution.
254 S 61(4) of the Constitution.
255 S 62(2) and (4) of the Constitution.
256 Bishop, M and Raboshakga, N ‘National legislative authority’ in Woolman and Bishop
(2013) 17.5.
257 S 62(4)(c) of the Constitution. In Van Zyl v New National Party and Others [2003] 3 All SA
737 (C) para 75, the Cape High Court found that the exercising of the authority to recall a
permanent delegate to the NCOP in terms of s 62(4)(c) of the Constitution constitutes the
exercising of a public power because such a decision has an influence on how the NCOP,
the delegations of the respective provinces and the joint committees on which delegates
 may serve are constituted. Such a decision may affect the manner in which those bodies
perform their functions and duties and this, in turn, may affect the interests of the
community at provincial and national levels. Accordingly, the exercising of this authority
has a strong public component.
258 Van Zyl v New National Party and Others [2003] 3 All SA 737 (C) para 44.
259 Van Zyl v New National Party and Others [2003] 3 All SA 737 (C) para 91.
260 Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)
and Certification of the Amended Text of the Constitution of the Republic of South Africa,
1996 1997 (2) SA 97 (CC).
261 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of
the Republic of South Africa, 1996 1996 (4) SA 744 (CC) paras 331–2. In this judgment, the
Court also held that in some respects the Senate has greater power than the Council; in
other respects, it has less (para 328). We disagree. While the collective power of the
provinces may be enhanced by the new provisions relating to the appointment, structure
and functioning of the Council, the Senate certainly had more constitutional power in the
national legislative process than the Council.
262 S 75(2) of the Constitution.
263 S 75(1) of the Constitution.
264 S 65(2) of the Constitution. How such mandates are obtained is regulated by the Mandating
Procedures of Provinces Act 52 of 2008.
265 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996) para 62.
See also Doctors for Life para 84.
266 Doctors for Life para 84.
267 Simeon, R and Murray, C (2001) Multi-sphere governance in South Africa: An interim
assessment Publius: The Journal of Federalism 31(4):65–92 at 78.
268 Simeon and Murray (2001) 78.
269 S 66(1) of the Constitution.
270 2008 (5) SA 171 (CC).
271 See s 5 of Schedule 1 of the Mandating Procedures of Provinces Act.
272 Merafong Demarcation Forum and Others v President of the Republic of South Africa and
Others 2008 (10) BCLR 968 (CC) para 50.
273 S 64(1) of the Constitution. While the Chairperson and one of the Deputy Chairpersons are
elected from the permanent delegates for a term of five years unless their terms as
delegates expire earlier (s 64(2)), the other Deputy Chairperson is elected for a term of one
year and ‘must be succeeded by a delegate from another province, so that every province is
represented in turn’ (s 64(3)). The position of chairperson and Deputy Chairperson is in
some respects similar to that of the Speaker and Deputy Speaker of the NA, and the
requirements to act in an independent and rational manner also apply to them.
274 S 70(1) of the Constitution. This provision mirrors the provision applicable to the NA – s
57(1).
275 S 70(2)(a) of the Constitution. S 57(2) contains identical provisions regarding the NA.
276 S 65(1) of the Constitution.
277 S 75(2) of the Constitution.
278 S 65(2) of the Constitution.
279 Act 52 of 2008.
280 S 65(1) of the Constitution.
281 Since the whole delegation has only one vote, all the delegates do not have to be present
and no quorum requirement is necessary.
282 S 75(2) of the Constitution.
283 S 70(2)(b) of the Constitution.
284 S 70(2)(c) of the Constitution refers to s 75 Bills.
285 S 42(3) of the Constitution states that the NA is able to represent the people and ensure
democratic government by, among others, ‘providing a national forum for public
consideration of issues’. Similarly, under s 42(4), the NCOP does so by ‘providing a national
forum for public consideration of issues affecting the provinces’.
286 S 55(2)(a) read with s 92(2) of the Constitution.
287 S 55(2)(b) of the Constitution. The Constitution does not provide for similar powers for the
NCOP. However, s 92 states that members of Cabinet are accountable to Parliament, which
suggests that they are accountable to both Houses of Parliament.
288 S 42(3) read with ss 55(1) and 68 of the Constitution.
289 Currie and De Waal (2001) 159. See NA Rules 103–4 and NCOP Rules 83–5.
290 S 59(1)(b) of the Constitution for the NA and s 72(1)(b) for the NCOP. Business must be
conducted in an open manner and sittings must be held in public, but reasonable
measures may be taken to regulate public access, including access of the media, and to
provide for the searching of any person and where appropriate, the refusal of entry to, or
the removal of, any person.
291 S 59(2) of the Constitution for the NA and s 72(2) for the NCOP.
292 S 59(1)(a) of the Constitution for the NA and s 72(1)(a) for the NCOP.
293 NA Rules 78–95 determine the rules of debate.
294 NA Rule 119.
295 NA Rule 130(1).
296 NCOP Rule 84(1) and (2).
297 S 92(2) of the Constitution.
298 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC) para 97.
299 United Democratic Movement para 40.
300 2017 (5) SA 300 (CC) para 10.
301 United Democratic Movement para 33.
302 2018 (2) SA 571 (CC).
303 Economic Freedom Fighters para 199.
304 Economic Freedom Fighters para 208.
305 In a minority judgment, Chief Justice Mogoeng Mogoeng went further and criticized the
majority for ordering the re-run of the impeachment proceedings, calling it ‘a textbook case
of judicial overreach’. Economic Freedom Fighters para 223.
306 See Parliament of the Republic of South Africa (2009) Oversight and Accountability Model:
Asserting Parliament’s Oversight Role in Enhancing Democracy 2.2.1, available at
http://pmg-assets.s3-website-eu-west-
1.amazonaws.com/docs/080319oversightmodel.pdf.
307 NA Rule 167 and NCOP Rule 103.
308 NA Rule 138 and NCOP Rules 240–4.
309 NA Rule 139 and NCOP Rules 240–4.
310 NA Rule 140 and NCOP Rules 240–4.
311 See Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC);
2013 (11) BCLR 1297 (CC) (27 August 2013).
312 (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August
2013).
313 NA Rules 187–90.
314 Mazibuko para 10.
315 Mazibuko para 43.
316 Mazibuko para 44.
317 Mazibuko para 44.
318 Mazibuko para 44.
319 Mazibuko para 47.
320 Mazibuko para 57.
321 S 57(1)(a) of the Constitution.
322 Mazibuko para 66.
323 Mazibuko para 66.
324 S 102(2) of the Constitution.
325 See Currie and De Waal (2001) 160.
326 Kotzé, H (1997) Take Us to Our Leaders: The South African National Assembly and its
Members 18. See also Nijzink and Murray (2002) 91 where the authors argue that despite
the important oversight functions of committees, we should not lose sight of the fact that
the role of committees has often been at the expense of plenary sessions where committee
reports could be more publicly aired and debated, the implementation of policy showcased
and scrutinised, and question time be given more of a profile.
327 Nash, A ‘Post-apartheid accountability: The transformation of a political idea’ in Chirwa,
DM and Nijzink, L (2012) Accountable Government in Africa: Perspectives from Public Law
and Political Studies 21.
328 Nash (2012) 18–20.
329 Nash (2012) 24.
330 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
331 S 55(2)(b) of the Constitution.
332 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
333 S 239 of the Constitution.
334 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
335 Kotzé (1997) 18.
336 Ss 100(1)(b) and 139(1)(b) of the Constitution respectively read with NCOP Rules 243–4.
337 S 216(3)(b) of the Constitution.
338 S 203 of the Constitution.
339 S 125(4) of the Constitution.
340 Doctors for Life para 81.
341 Doctors for Life para 82.
342 S 44(1)(a)(i) and 44(1)(b)(i) of the Constitution.
343 S 44(1)(a)(ii) and 44(1)(b)(ii) of the Constitution.
344 S 44(1)(a)(iii) and 44(1)(b)(iii) of the Constitution.
345 The question of how to deal with conflicts between provincial and national legislation will
be dealt with more fully in chapter 5. On conflicts, see generally Bronstein, V ‘Conflicts’ in
Woolman and Bishop (2013) 16.1–16.31.
346 S 55(2) read with s 73(2) of the Constitution.
347 Until the Constitutional Court handed down judgment in Oriani-Ambrosini, MP v Sisulu,
MP Speaker of the National Assembly (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC);
2013 (1) BCLR 14 (CC) (9 October 2012), the private members’ Bills were regulated by the
NA Rules 209–13 and 234–7.
348 NA Rules 238–40.
349 NA Rule 230 states: ‘(1) The Assembly initiates legislation through its committees and
members acting with the permission of the Assembly in terms of these Rules. (2) Any
committee or member of the Assembly may in terms of section 73(2) of the Constitution
introduce a Bill in the Assembly that has been initiated in terms of Sub-rule (1).’
350 NA Rule 234.
351 NA Rule 235A(1).
352 2012 (6) SA 588 (CC).
353 Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 (6) SA 588 (CC)
para 43. See also South African Transport and Allied Workers Union and Another v Garvas
and Others 2013 (1) SA 83 (CC) para 61.
354 2003 (2) SA 413 (CC) paras 42–3. See Oriani-Ambrosini para 47.
355 Oriani-Ambrosini para 48.
356 Oriani-Ambrosini para 48.
357 Oriani-Ambrosini para 49.
358 Oriani-Ambrosini para 57.
359 Oriani-Ambrosini para 64.
360 Oriani-Ambrosini para 64.
361 See De Vos, P (2012, 10 October) One small step for Parliament, one giant leap for
Ambrosini Constitutionally Speaking, available at
http://constitutionallyspeaking.co.za/once-small-step-for-parliament-one-giant-leap-for-
ambrosini/.
362 Barkan, J (2005) Emerging legislature or rubber stamp? The South African National
Assembly after ten years of democracy Working paper No 134, Centre for Social Science
Research: Democracy in Africa Research Unit, University of Cape Town at 9–11, available at
https://open.uct.ac.za/handle/11427/19368. A version of this paper has now been
published in Barkan, JD (ed) (2009) Legislative Power in Emerging African Democracies.
363 Barkan (2005) 6.
364 Barkan (2005) 6.
365 Barkan (2005) 7. It is unclear whether this assertion is still correct. After the ousting of
President Thabo Mbeki, power shifted from the Presidency back to the ANC leadership
collective as represented by the Secretary-General of the party.
366 Barkan (2005) 10.
367 Barkan (2005) 11.
368 Barkan (2005) 13. Barken notes that Bills may be referred back to the committee for further
amendment before a formal vote, including the amendments desired by the Minister. See
also Doctors for Life para 40 where Ngcobo J pointed out that the first stage, the deliberative
stage, takes place when Parliament is deliberating on a Bill before passing it; the second
 stage, the Presidential stage, occurs after the Bill has been passed by Parliament but while it
is under consideration by the President; and the third stage is the period after the President
has signed the Bill into law but before the enacted law comes into force.
369 S 79(1) of the Constitution. See also remarks by O’Regan J in Executive Council of the
Western Cape Legislature and Others v President of the Republic of South Africa and Others
1995 (4) SA 877 (CC) para 7.
370 See De Vos, P (2019, 20 November) Why is a DA MP demanding that the President act
unconstitutionally? Constitutionally Speaking, accessed on 26 February 2020 at
https://constitutionallyspeaking.co.za/why-is-a-da-mp-demanding-that-the-president-
act-unconstitutionally/.
371 S 74 of the Constitution.
372 S 75 of the Constitution.
373 S 76 of the Constitution.
374 S 77 of the Constitution.
375 2010 (6) SA 214 (CC) para 45.
376 Joint Rules of Parliament (6th edition) (2011) Rule 151.
377 Joint Rule 151.
378 Tongoane and Others v National Minister for Agriculture and Land Affairs and Others 2010
(6) SA 214 (CC) para 45.
379 Tongoane para 48.
380 Tongoane para 58. See also Ex Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1)
BCLR 1 (11 November 1999) paras 63–4; Western Cape Provincial Government and Others
In Re: DVB Behuising (Pty) Limited v North West Provincial Government and Another
(CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347; 2001 (1) SA 500 (2 March 2000) para 36; In
re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, In re: Payment
of Salaries. Allowances and Other Privileges to the Ingonyama Bill of 1995 (CCT1/96,
CCT6/96) [1996] ZACC 15; 1996 (7) BCLR 903; 1996 (4) SA 653 (5 July 1996) para 19.
381 Tongoane 59–60.
382 S 40(1) of the Constitution.
383 Tongoane para 67, quoting from s 41(1)(e) and 41(1)(h)(iv) of the Constitution.
384 S 74(1) of the Constitution.
385 S 74(2) of the Constitution.
386 S 74(3)(b) of the Constitution.
387 S 74(8) of the Constitution.
388 Ss 73(1) and 75(1) of the Constitution.
389 S 75(1) of the Constitution.
390 See s 75(1)(a)–(d) of the Constitution.
391 S 76(3) of the Constitution. These sections are ss 65(2), 163, 182, 195(3) and (4), 196 and
197.
392 S 76(4) of the Constitution.
393 S 76(5) of the Constitution.
394 Tongoane para 56 et seq.
395 S 76(1) and (2) of the Constitution.
396 S 78(1) of the Constitution.
397 S 78(2) of the Constitution.
398 S 76(1)(d) and 76(2)(d) of the Constitution.
399 S 76(1)(e) and 76(2)(e) of the Constitution.
400 S 77(1) read with s 214 of the Constitution.
401 S 77(3) of the Constitution.
402 Act 9 of 2009.
403 Liquor Bill para 12.
404 S 237 of the Constitution.
405 Liquor Bill para 13.
406 (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999).
407 Liquor Bill para 11.
408 Liquor Bill paras 14–20.
409 See O’Regan J in Executive Council of the Western Cape Legislature and Others v President of
the Republic of South Africa and Others 1995 (4) SA 877 (CC) para 151.
410 S 80(1) of the Constitution.
411 S 80(2) of the Constitution.
412 S 80(3) of the Constitution.
413 1995 (4) SA 877 (CC) para 51.
414 Executive Council of the Western Cape Legislature para 51. See also AAA Investments
(Proprietary) Limited v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC)
paras 49, 93 and 122–3; Constitutionality of the Mpumalanga Petitions Bill, 2000 2002 (1) SA
447 (CC) para 19; Executive Council of the Province of the Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another, Executive Council of
KwaZulu-Natal v President of the Republic of South Africa and Others 2000 (1) SA 661 (CC)
paras 123–4.
415 Executive Council of the Western Cape Legislature para 51.
416 2000 (1) SA 661 (CC) para 125.
417 2011 (5) SA 388 (CC) para 61.
418 Executive Council of the Western Cape Legislature para 51. See also 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 (5) SA 388 (CC) para 51.
419 Justice Alliance para 55.
420 Justice Alliance para 55.
421 See Executive Council of the Western Cape Legislature para 43.
422 See Hoexter, C (2007) Administrative Law in South Africa 50.
423 Act 209 of 1993.
424 Executive Council of the Western Cape Legislature para 51.
425 Executive Council of the Western Cape Legislature paras 106–13.
426 This basic principle was confirmed in a separate judgment in the same case by Mahommed
DP (Executive Council of the Western Cape Legislature para 136), but for slightly different –
more substantive – reasons. Mahommed said these things cannot be determined in the
abstract but depend, inter alia, on ‘the constitutional instrument in question, the powers of
the legislature in terms of that instrument, the nature and ambit of the purported
delegation, the subject-matter to which it relates, the degree of delegation, the control and
 supervision retained or exercisable by the delegator over the delegatee, the circumstances
prevailing at the time when the delegation is made and when it is expected to be exercised,
the identity of the delegatee and practical necessities generally’.
427 Act 47 of 2001.
428 Justice Alliance para 55.
429 Justice Alliance para 56.
430 Justice Alliance para 77.
The separation of powers and the
national executive

5.1 Introduction

5.2 The President

5.2.1 Election, term of office, and removal
5.2.2 The President as Head of State and as head of the executive
5.2.3 The limits on the exercise of presidential power

5.3 The Deputy President and the rest of the Cabinet

5.3.1 Appointment and removal
5.3.2 Powers of the Deputy President and the Cabinet

Summary

5.1 Introduction
Figure 5.1 Separation of powers and the national executive

While legislative authority at the national level is vested in Parliament,

executive authority at the national level is vested in the President and
the national executive. Apart from the President, the national executive
consists of the Deputy President, the members of the Cabinet and
Deputy Ministers. Unlike Parliament, which is made up of members of
every political party, which received enough votes in a general election
to win at least one seat in the National Assembly (NA), the national
executive is usually made up only of the members – usually the leaders
– of the majority party in the NA (or where no party has obtained a
majority, the members of a coalition of parties).
Before we turn to discuss the President and the national executive in
detail, it is important to distinguish between the executive, the public
administration, the public service and the state. When we refer to the
executive, we mean the politicians who are elected or appointed to
form the government of the day. A government is formed by the
majority party (or parties who form a majority coalition1) in the NA for
the limited duration of the life of the NA. Government is thus a
temporary bearer of state or political authority. This means
governments come and go while the public administration, public
service and the state – with all their permanent employees – stay the
same even when the governing party loses an election and is replaced
by another party. As the electoral fortunes of political parties wax and
wane, they may find themselves either in government or in opposition.
Although one political party can remain in government for many years
because it retains its popular appeal and keeps winning elections, as
has been the case with the ANC in democratic South Africa, that
political party and the government it leads should not be conflated or
confused with the public administration, public service and the state.
The public administration consists of the officials who carry out the
core (or the day-to-day) business of the government and who
implement the political decisions taken by the members of the
executive.2 These include all the employees of government
departments, as well as the employees of other organs of state. A slightly
narrower group is the members of the public service who are those
persons who work for the national and provincial government
departments.3
The government or the executive must also be distinguished from
the state. Unlike the government, the state is a permanent bearer of
state authority. The state is usually viewed as an organised political
community occupying a certain territory and whose members live
under the authority of a constitution. The state, therefore, is a far
broader concept than the government: it does not change except in the
case of a revolution in which the state itself is overthrown and replaced
with a new constitutional order or other set of governing rules, or in
which the state is recreated within new geographical boundaries, or
both. Even when the governing party is defeated at an election and a
new government is formed, the state remains the same.
In this chapter we discuss the executive authority at the national
level. The executive authority is also exercised at the provincial and
local spheres of government. In the provincial sphere, these structures
largely mirror those in the national sphere: each provincial executive
consists of a Premier and the Members of the Executive Council
(MECs). In chapter 8 we will refer to these institutions with reference to
the relationship between the three spheres of government. It is,
however, important to note that the discussion in this chapter focuses
on the executive in the national sphere only.
 The discussion in this chapter occurs against the larger canvas of the
separation of powers doctrine and the system of checks and balances.
When discussing the appointment and possible dismissal of the
President, it must be understood as a mechanism to give effect to the
principle of checks and balances in the separation of powers system.
The discussionof the exercise of powers by members of the national
executive must also be considered with reference to the powers of the
NA (discussed in chapter 4) to hold the members of the national
executive accountable. It, therefore, is impossible to study the
appointment, powers and the limits placed on the exercise of powers by
members of the national executive without having regard to the powers
and functions of Parliament. Neither is it possible to understand the
way in which the executive’s exercise of power is constrained without
having regard to the role of the judiciary (discussed in chapter 6).

5.2 The President

5.2.1 Election, term of office, and removal

Unlike the 1983 tricameral Constitution, the 1996 Constitution does not
provide for the election of a State President – it refers simply to the
election of a President. The NA elects the President as both the Head of
State and as the head of the national executive from among the
members of the NA at its first sitting after a national general election or
whenever a vacancy occurs in the office of the President.4 The President,
in turn, appoints the members of the Cabinet who will govern the
country for the electoral term of the NA – usually five years. The election
of the President must be held at a time and on a date determined by the
Chief Justice, but an election to fill a vacancy in the Office of the
President must take place not more than 30 days after a vacancy
occurs.5
After his or her election, the President ceases to be a member of the
NA. Within five days, the newly elected President must assume office by
swearing or affirming faithfulness to the Republic and obedience to the
Constitution in accordance with the oath of office contained in
Schedule 2 of the Constitution.6
As the President is both head of state and head of the executive,
once elected, the President becomes the leader of the entire nation and
not just the leader of his political party or the leader of only the people
who elected him. He or she thus fulfils a pivotal role in the life of the
Republic. This role was described by the Constitutional Court in its
judgment in Economic Freedom Fighters v Speaker of the National
Assembly; Democratic Alliance v Speaker of the National Assembly (EFF
I) as follows (referring to the incumbent President and therefore using
only the male pronoun):
The President is the head of state and head of the national executive. His is
indeed the highest calling to the highest office in the land. He is the first citizen
of this country and occupies a position indispensable for the effective
governance of our democratic country. Only upon him has the constitutional
obligation to uphold, defend and respect the Constitution as the supreme law
of the Republic been expressly imposed. The promotion of national unity and
reconciliation falls squarely on his shoulders. As does the maintenance of
orderliness, peace, stability and devotion to the well-being of the Republic and
all of its people. Whoever and whatever poses a threat to our sovereignty, peace
and prosperity he must fight. To him is the executive authority of the entire
Republic primarily entrusted. He initiates and gives the final stamp of approval
to all national legislation. And almost all the key role players in the realisation
of our constitutional vision and the aspirations of all our people are appointed
and may ultimately be removed by him. Unsurprisingly, the nation pins its
hopes on him to steer the country in the right direction and accelerate our
journey towards a peaceful, just and prosperous destination, that all other
progress-driven nations strive towards on a daily basis. He is a constitutional
being by design, a national pathfinder, the quintessential commander-in-chief
of state affairs and the personification of this nation’s constitutional project.7

The President may not serve more than two full terms in office, which
will normally be 10 years. However, if the President is elected to fill a
vacancy which has occurred between elections, the period he or she
serves until the next election will not count as part of one of the two
terms.8 For example, Cyril Ramaphosa was elected as President in 2018
in order to fill the vacancy caused by former President Jacob Zuma’s
resignation. He was elected as President again in 2019 following the
ANC’s victory in the general election. The period he served between his
election as President in 2018 and his re-election as President in 2019
does not count as his first term. Instead, for the legal purpose of
counting terms, his first term began only after he was elected as
President in 2019. This means that a President who takes over the
presidency halfway through the term of the NA, and then serves out that
half term plus two full terms, could serve more than 10 years as
President.
In light of the points set out above, it is clear that the President is not
directly elected by the voters, but is indirectly elected by the members
of the NA. Usually, the leader of the majority party in the NA, who was
elected by representatives of the members of that political party at its
national elective congress or conference, will be elected as President.9 It
follows, therefore, that the President is, in effect, elected by the
delegates who are selected to attend the elective conference of the
political party that wins the next general election and not directly by the
voters. However, voters indirectly confirm the majority party’s choice of
leader, and therefore as President, by voting for that party in the general
election that follows on the election of the party leader.
On paper, the NA – the directly elected body – is more powerful than
the President or his or her Cabinet as the NA has the power not only to
elect the President, but also to remove him or her from office. However,
in practice, the President and the other members of the executive
remain the more powerful arm of government until such time as he or
she loses the support of the majority party in the NA. This is because as
long as the President enjoys the support of the members of the majority
political party of which the President would usually be the leader, his or
her position as party leader will provide him or her with enormous
influence over ordinary members of the party in the NA. In other words,
while technically the President reports to and is accountable to
Parliament, arguably Parliament indirectly reports to the President
because the majority of the members of the NA are ordinary members
of the governing party for which the President is the leader.
The NA can remove the President from office in one of two ways.
First, in terms of section 89(1) of the Constitution, the NA can remove
the President from office if it adopts a resolution to that effect with a
supporting vote of at least a two-thirds majority if they find that one of
the specified grounds for the removal of the President exists. These
grounds are a serious violation of the Constitution or the law, serious
misconduct or inability to perform the functions of office.10 These are
objective grounds and the NA can remove the President in this manner
only after it has found that one or more of these grounds is present. The
removal in terms of section 89(1) is referred to as ‘Impeachment’ –
although that term is not used in the Constitution.11 Impeachment
could only commence if it is established – as a fact – that the President
had committed a serious violation of the Constitution or the law or
serious misconduct, or that he or she is incapacitated. The existence of
one of these factors is a necessary condition for commencing a section
89 process.12 Without accepting that one of the listed grounds exists, the
NA cannot authorise the commencement of the impeachment process,
which could result in the removal of the President from office. This is so
because those grounds constitute conditions for the President’s
removal. As the Constitutional Court explained in EFF II: ‘A removal of
the President where none of those grounds is established would not be
a removal contemplated in section 89(1)’13 and would therefore be
unconstitutional.
Given that the NA can remove the President only after it has found
that one or more of the grounds listed in section 89(1) is present, the
Constitutional Court held in EFF II that the NA’s failure to adopt rules
establishing a specific procedure in terms of which such a finding can
be made was unconstitutional and invalid.14 The NA was thus obliged to
adopt rules specifically tailored for the section 89(1) removal process. In
arriving at this decision, the Court held that the use of an ad hoc
committee in terms of the existing rules of the NA to determine whether
any of the section 89(1) grounds were present was not an appropriate
mechanism for such a momentous task as the removal of a President.

Is the impeachment process a political or and

impartial fact-based process?
Now that the Constitutional Court has confirmed that a
President can only be impeached if one of the factors
listed in section 89(1) is present, it is clear that the NA
cannot impeach the President merely because he or
she has lost the confidence of members of the NA or
for some other political reason. It is also clear that if
the NA found that the President was guilty of a serious
violation of the Constitution or the law or serious
misconduct or that he or she is incapacitated, and
such a finding was not warranted on the facts, the
Constitutional Court would be able to declare invalid
any subsequent vote taken by the NA to remove the
President from office. This it would be able to do
because the NA does not have the power to impeach
the President unless – as a factual matter – one of the
conditions of impeachment exists.
But what happens if – as a factual matter – it is
clear that one or more of the grounds for impeachment
does exist? To use an extreme example, if the
President is convicted of corruption and bribery he or
she would be guilty of a serious violation of the law –
one of the grounds on which impeachment could
proceed. Section 89(1) states that in such a case the
NA may remove the President from office by adopting a
resolution supported by at least two thirds (267) of the
members of the NA. The members of the NA have a
discretion either to support or oppose such a vote and
are likely to exercise this discretion in accordance with
the wishes of their political party. This means that while
the first leg of the impeachment process is a purely
factual inquiry, the second leg is a political process.
This means that even where a President may be guilty
of the most serious violation of the Constitution or the
law or the most serious misconduct, he or she may
survive an impeachment because a sufficient number
 of MPs have decided for political or other reasons not
to support impeachment.
However, it is important to remember that
members of the legislature have a constitutional duty
to uphold constitutional values and are not required to
follow the dictates of their parties in all circumstances.
Thus in United Democratic Movement v Speaker of the
National Assembly and Others (UDM) the
Constitutional Court explained that:
Central to the freedom “to follow the dictates of personal
conscience” is the oath of office. Members are required to swear
or affirm faithfulness to the Republic and obedience to the
Constitution and laws. Nowhere does the supreme law provide for
them to swear allegiance to their political parties, important
players though they are in our constitutional scheme. Meaning, in
the event of conflict between upholding constitutional values and
party loyalty, their irrevocable undertaking to in effect serve the
people and do only what is in their best interests must prevail.15

MPs who fail to support impeachment of a President

who is guilty of a serious violation of the Constitution
or the law or gross misconduct, may be failing in their
constitutional duty as set out in the UDM judgment.

The NA cannot remove the President from office in terms of section 89

merely because he or she has lost the support of the majority party in
the NA. The power conferred on the NA does not confer wide political
discretion on members of the NA, instead it confers a power on the NA
to safeguard the nation against the abuse of power by the President.
Removing the President in this manner, has potentially serious
consequences. Anyone who has been removed from the office of
President because of a serious violation of the Constitution or the law,
or for serious misconduct, is prohibited from receiving any benefits of
that office, including a pension, and may not serve in any public office
again.16
 A President who has been removed from his office for inability to
perform the functions of this office, however, does not lose these
benefits and may not be barred from serving in any public office.17 This
is probably because, although a serious violation of the Constitution or
ordinary law and serious misconducts refers to wrongdoing by the
President, this is not necessarily the case with regard to inability to
perform the function of office. For instance, the President might be
unable to perform the function of office because of ill-health. A
President who resigns, or who retires after serving two full terms or
whose party loses an election and is not re-elected as President is
entitled to these benefits.
Second, the President can also be removed from office for purely
political reasons in terms of section 102(2) of the Constitution, but only
if the NA, by a vote supported by a simple majority of its members,
passes a motion of no confidence in the President. Section 102 reflects
the essentially parliamentary nature of our system of government as it
signals that the President and his or her Cabinet are required at all times
to retain the support of the majority of members of the NA.18 The
Constitutional Court linked the power of the NA to pass a vote of no
confidence in the President, to its role to hold the executive accountable
stating in UDM:
Although a motion of no confidence may be invoked in instances that are
unrelated to the purpose of holding the President to account, it is a potent tool
towards the achievement of that purpose. In that context, it is inextricably
connected to the foundational values of accountability and responsiveness to
the needs of the people … And accountability is necessitated by the reality that
constitutional office bearers occupy their positions of authority on behalf of
and for the common good of all the people. It is the people who put them there,
directly or indirectly, and they, therefore, have to account for the way they
serve them. A motion of no confidence therefore exists to strengthen regular
and less “fatal” accountability and oversight mechanisms.19

Where one political party has obtained more than 50% of the votes in
the NA, this will in effect mean that the President is at all times required
to retain the support of his or her party both inside and outside the NA.
If the President loses the support of his or her party, a vote of no
confidence can be instituted against the President after which he or she
will have to resign. Following the Constitutional Court’s judgment in
Mazibuko v Sisulu and Another (Mazibuko),20 any member of the NA
can now propose a motion of no confidence in the President and have it
debated in the NA without first having to obtain the consent of the
Programming Committee and thus in effect the majority party. It is,
however, highly unlikely that such a motion will be passed unless the
President has lost the support of his or her party.
South Africa has a closed list proportional representation electoral
system in which political party leaders have influence over who
represents the party in the NA. The practical effect of this system is that
the President must retain the support of the majority party leadership to
ensure that he or she is not ‘recalled’ by that leadership. If members of
the majority party in the NA are instructed by the party leadership to
support a vote of no confidence in the President, they would probably
agree to do so as their failure to obey such an instruction might well
lead to their removal from the NA and their replacement with members
who would obey such an order. This is because the Constitution
provides that a member of the NA ceases to be a member if he or she
‘ceases to be a member of the party that nominated that person as
member of the Assembly’.21 This means if a member of the NA refuses to
follow instructions from party leaders to support a vote of no
confidence in the President, he or she can be removed from the party
for ill-discipline and be replaced with a more docile member. Thus,
‘members’ fate or future in office thus depends largely on the party [or
even the President]’.22 Although the Constitutional Court held in United
Democratic Movement v Speaker of the National Assembly and Others
that MPs, in the event of conflict between upholding constitutional
values and party loyalty, should choose to serve the people who elected
them and not their political parties, in practice, most MPs will follow the
dictates of their parties to protect themselves from party retribution.
This is so unless MPs are allowed to vote in a secret ballot and are thus
protected from consequences of their actions.
It is partly because of this that the Constitutional Court held in the
United Democratic Movement v Speaker of the National Assembly that
the Speaker of the National Assembly has a discretion to decide
whether voting on a motion of no confidence against the President
should take place by open ballot or by secret ballot.23 This discretionary
power should not be exercised arbitrarily or whimsically but should
have a rational basis and have the effect of ensuring effective
enforcement of executive accountability.24 When making his or her
decision, the Speaker must take into account whether the vote is aimed
at holding the President accountable (in which case a secret ballot
would be more appropriate) or for some other party-political reason (in
which case a secret ballot would be less appropriate). The Speaker must
also remain mindful of possible ‘crass dishonesty, in the form of bribe-
taking or other illegitimate methods of gaining undeserved majorities’
when deciding on whether to grant a secret ballot. If a secret ballot
would facilitate such dishonesty a secret ballot should not be granted.25
It is important to note that whether voting should take place through an
open ballot or through a secret ballot is at the discretion of the National
Assembly through the Speaker. In accordance with the principle of
separation of powers26 and in accordance with the National Assembly’s
power to determine and control its internal arrangements, proceedings
and procedures,27 a court of law cannot order the NA to have an open or
secret ballot in conducting a vote of no confidence against the
President.

The legality of the decision by the ANC NEC to

‘recall’ former President Mbeki from office
In his book, Eight Days in September: The Removal of
Thabo Mbeki,28 the Reverend Frank Chikane writes
about the dramatic removal of former President Thabo
Mbeki from office by the National Executive Committee
(NEC) of the ANC. Members of the NEC were elected at
Polokwane at the end of 2007 after a bitter struggle
between Mbeki and his supporters and President
Jacob Zuma and his supporters. (Ironically Jacob Zuma
himself was forced to resign as President by his party
after his political opponent Cyril Ramaphosa was
elected as President of the party.)
Chikane describes how former President Thabo
Mkebi’s closest advisers got wind in the early hours of
Friday 19 September 2008 that the National Executive
Committee of the ANC had decided to ‘recall’ Mbeki as
President of the country. As this had never happened
before in democratic South Africa, his legal advisers
were unsure what to do. Mbeki’s advisers agreed that
the legal unit within the presidency would review the
legal issues related to the decision to recall Mbeki and
would then advise how the government would handle
the matter. Was it constitutionally permissible for the
ANC - a political party - to ‘recall’ the President of the
country? Chikane raises questions in the book (but
does not answer them) whether the decision was legal
and whether Mbeki was legally required to obey the
‘recall’ by the NEC. (Supporters of former President
Jacob Zuma similarly questioned the legality of the
decision to ‘recall’ him as President in 2018.)
Constitutionally, former President Mbeki had no legal
duty to obey the decision of the NEC to ‘recall’ him. It
must be noted that it is only the NA, and it alone (not
political parties represented in it) which ‘is the
repository of the power to pass motions of no
confidence in the President’29 and thus to remove
him/her with the majority of the votes of its members.
Mbeki could therefore have refused to resign in the
hope of garnering support from among the ANC
members serving in the NA.
However, if he had refused to heed the instruction
by the NEC, serious consequences might have ensued.
First, his refusal may have led to disciplinary charges
being brought against him and he may eventually have
been expelled from the ANC. Second, the ANC
 members of the NA would have been instructed to rely
on section 102 of the Constitution to pass a vote of no
confidence in Mbeki after which he would have had to
resign. In these circumstances, the President had little
choice but to resign, which he did in due course after
addressing the nation.
This dramatic event in South Africa’s history alerts
us to the sometimes complex relationship between
political parties (especially the governing party) and
the elected officials in the legislature and the
executive. Although the President and the members of
the NA are constitutionally required to act in
accordance with the Constitution, strict party discipline
also requires them to obey the instructions of the
political party to which they belong. In this context, the
absence of more detailed provisions in the Constitution
or legislation regulating the relationship between
political parties and elected officials may be viewed as
a weakness in our constitutional system.

Given that the President fulfils a vital role in running the country as the
Head of State and head of the executive, the Constitution provides for
the appointment of another office-bearer as an acting President as soon
as a vacancy in the Office of the Presidency arises. A vacancy in the
Office of the President will arise when:
• the President is absent from the Republic
• the President is otherwise unable to fulfil the duties of President, for
example due to illness
• there is a vacancy in the office of President that arises when the
President resigns or dies while in office, a motion of no confidence
in the President is passed or the President is removed from office.

The Deputy President will usually be appointed as the acting President

when a vacancy arises, but if he or she is unavailable the following
office-bearers will act as President in the order set out below:
• a Minister designated by the President, but if the President has not
designated such a person
• a Minister designated by the other members of the Cabinet, but if
the Cabinet has not designated such a person
• the Speaker of the NA until the NA designates one of its other
members as acting President.30

This means that if the President falls ill, passes away or resigns, the
Deputy President will usually act as President until a new President is
elected or until the President can resume his or her duties. However, if
the Deputy President is also unavailable because he or she has resigned
or has also passed away, somebody else, in the order listed above, will
be appointed as acting President to ensure that there is no power
vacuum at the top of the executive.
An acting President has all the responsibilities, powers and
functions of the President.31 Before assuming the responsibilities,
powers and functions of the President, the acting President must swear
or affirm faithfulness to the Republic and obedience to the Constitution
in accordance with the oath of office contained in Schedule 2 of the
Constitution.32 A person who as acting President has sworn or affirmed
faithfulness to the Republic need not repeat the swearing or affirming
procedure for any subsequent term as acting President, during the
period ending when the next elected President assumes office.33

5.2.2 The President as Head of State and as head of the

executive
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 State34 as well as
the head of the national executive.35 The legal significance of this
distinction is that as Head of State the President exercises his or her
authority alone36 and usually need not consult the other members of the
Cabinet.37 When the President exercises head of the executive powers,
he or she acts in consultation with his or her Cabinet.38
 When the President acts as Head of State, he or she cannot ‘abdicate’
the exercise of such a power39 by:
• unlawfully delegating that power conferred on him or her as Head of
State40
• acting ‘under dictation’ by merely following the instructions of
another without applying his or her mind to the matter at hand41
• ‘passing the buck’ by referring the decision to somebody else.42

This does not mean that when contemplating the exercise of this kind of
Head of State power, the President should not (or does not have the
right to) consult with and take the advice of Ministers and advisers.
However, the President must take the final decision him or herself.43 The
Constitutional Court can determine whether the Head of State powers
are exercised in accordance with the Constitution and can confirm that
such an exercise of power does not infringe on the Bill of Rights or
breach the principle of legality. We deal with this check on the exercise
of power by the President in more detail in the following section.
One of the ways in which the Head of State powers may be
distinguished from the head of the national executive powers is by
focusing on the nature of the powers themselves. If the President is
required to exercise a political discretion on behalf of the government,
the President is acting as the head of the national executive. If the
President is not required to exercise a political discretion on behalf of
the government, he or she is acting as the Head of State. As Head of
State, the President represents all of the people, and not only the
government formed by the majority party.44 However, as Currie and De
Waal point out, this distinction is difficult to uphold.45
A better distinction can be drawn between the exercise of the Head
of State power and the head of the executive power by focusing on the
historical emergence of the Office of the President. For most of the
twentieth century, the Head of State powers were vested initially in the
Governor-General and, after 1961 when South Africa became a
Republic, in the State President. During this same period, the head of
the national executive powers were vested in the Prime Minister. This
mirrored the roles of the Monarch and the Prime Minister in the United
Kingdom (UK). In terms of this system, the Head of State (the Queen in
the UK and the State President in South Africa) formally exercised the
Head of State power but usually on the advice of the Prime Minister.
Following the enactment of the 1983 tricameral Constitution, these two
offices were combined into a single Office of an executive State
President, and this arrangement was retained in both the 1994 interim
Constitution and 1996 Constitution. Apart from combining the two
offices into one, the former uncodified prerogative powers of the State
President, derived from the British system, were extinguished and
codified initially in section 82(1) of the interim Constitution and
subsequently in section 84(2) of the Constitution.46 In this system,
therefore, the President fulfils the duties of both the Head of State,
which are similar to the ceremonial powers of the Queen, and the head
of the national executive, which are similar to the executive powers of
the Prime Minister.
The Constitution provides some clarity on the distinction between
Head of State and head of the executive powers by listing these powers
in two separate sections. Section 84(2) of the Constitution lists the Head
of State powers exercised by the President alone and states that the
President exercises Head of State powers when he or she:
• assents to and signs Bills
• refers a Bill back to the NA for reconsideration of the Bill’s
constitutionality
• refers a Bill to the Constitutional Court for a decision on the Bill’s
constitutionality
• summons the NA, the NCOP or Parliament to an extraordinary
sitting to conduct special business
• makes any appointments that the Constitution or legislation
requires the President to make, other than as head of the national
executive
• appoints commissions of enquiry47
• calls a national referendum in terms of an Act of Parliament
• receives and recognises foreign diplomatic and consular
representatives
• appoints ambassadors, plenipotentiaries, and diplomatic and
consular representatives
• pardons or reprieves offenders, remits any fines, penalties or
forfeitures and confers honours.48

Although the President has sole authority over the Head of State
powers, in President of the Republic of South Africa v Public Protector,49
the High Court held that the Public Protector’s remedial powers include
the authority, not only to instruct the President to perform his or her
obligations as the Head of State (in this case, to appoint a commission
of inquiry into state capture), 50 but also to determine the manner in
which the President should do so in those cases in which he or she
suffers from a conflict of interest (in this case, to appoint a judge
selected by the Chief Justice as the head of the commission). In that
case, the Public Protector had ordered that the Chief Justice (and not
the President) select the person to chair a Commission of Inquiry into
so-called ‘State Capture’. The Public Protector did this because the then
President was implicated in ‘State Capture’ and may therefore have
been conflicted. Given that the Constitutional Court held (as noted
above) that the President cannot ‘abdicate’ the exercise of powers
explicitly bestowed on him by the Constitution, the judgment of the
High Court in the Public Protector case might not be correct. A better
approach was followed by the High Court in Corruption Watch (RF)
NPC and Another v President of the Republic of South Africa and Others;
Council for the Advancement of the South African Constitution v
President of the Republic of South Africa and Others (Corruption
Watch).51 The case dealt with a situation in which the President was
required to appoint a new National Director of Public Prosecutions, but
where the President was conflicted because the NDPP would be
required to decide whether the President should be prosecuted for
corruption while potentially facing corruption charges himself. The
court relied on section 90(1) of the Constitution which requires the
Deputy President to act as President when the President is ‘unable to
fulfil the duties of President’.52 The High Court explained that:
 In a rights-based order it is fundamental that a conflicted person cannot act; to
act despite a conflict is self-evidently to pervert the rights being exercised as
well as the rights of those affected. And s.96(2)(b) makes that clear beyond the
pale. If conflicted, the individual simply cannot act, is “unable” to act, whether
s.90 was there or not. In this light, all s.90 does is to identify the person who
must act whenever the President, by virtue of a conflict, is unable. And it is the
Deputy President, who does not get sworn in; s/he simply performs the act
which the President himself is unable to perform.53

This solution better accords with the settled principle that the President
cannot abdicate his or her power and should not exercise power on the
dictation of any other person. If followed in future, it would mean that
whenever the President is conflicted and is thus unable to exercise a
power, he or she should refrain from exercising that power and should
rather allow the Deputy President to do so.
Section 85(1) of the Constitution states that the executive authority
of the Republic is vested in the President while section 85(2) confirms
that the President exercises the executive authority together with the
other members of the Cabinet. The President has the sole authority to
appoint the Deputy President, Cabinet Ministers and Deputy Ministers
and also has the power to dismiss the Deputy President, Cabinet
Ministers and Deputy Ministers.54 The President also has the sole
authority to appoint the leader of government business in the NA from
among the members of the NA.55 The President exercises executive
authority, together with the other members of the Cabinet, 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
• performing any other executive function provided for in the
Constitution56 or in national legislation, which includes the
appointment of the National Director of Public Prosecutions,57 the
Military Command of the National Defence Force,58 the National
Commissioner of the Police Service, 59 the heads of the intelligence
services,60 and the members of boards of state-owned entities
(SOEs).61

How the formal power of the President to

appoint and dismiss is constrained by internal
party-political considerations
Although the President has the constitutional authority
to appoint and dismiss the Deputy President and other
members of the Cabinet, in practical terms this power
is limited not only by the Constitution, but also by the
party-political system. As we have argued above, a
close relationship exists in South Africa between
political parties on the one hand and the members of
the legislature and the executive on the other. The
reason for this is that members of the legislature are
elected via their respective political parties and
political parties insist that elected leaders adhere
strictly to party discipline.
This means that when the President considers the
appointment or dismissal of the Deputy President,
Cabinet Ministers and Deputy Ministers, he or she will
usually informally consult the leadership of the
governing party before making an appointment or
before dismissing a member of the Cabinet. This is
despite the fact that constitutionally, the power to
make these appointments is that of the President
alone. When a President appoints or dismisses a
Cabinet member, he or she needs to ensure support
from his or her political party to retain the confidence
of the political party of which he or she is the leader.
The formal power to make these appointments may
therefore be informally constrained by the demands of
intraparty politics.
 This situation arose in 2015 when then President
Jacob Zuma fired the Minister of Finance, Nhlanhla
Nene, and replaced him with a little-known MP called
Des van Rooyen. The move generated an outcry from
the public and led to a dramatic drop in the value of
the currency and of prices on the stock market. Three
days later the President removed Van Rooyen as
Finance Minister and replaced him with Pravin
Gordhan who had done a previous stint as Finance
Minister. Although it is unclear exactly why the
President reversed course, it is likely that resistance
from leaders within the governing party – along with
fears about a possible market crash – contributed to
the u-turn by President Zuma.

The role, powers and administrative functions of the South African

President have increased since 1994. When Nelson Mandela became
President, the office of the President had been scaled down. Given the
mammoth task facing the executive – of transforming the country – it
was important to enhance the capacity of the Presidency. To address
this issue, Mr Mandela appointed a Commission of Enquiry Regarding
the Transformation and Reform of the Public Service. This Presidential
Review Commission aimed to assist with the transformation of the state
and its principal executive arm to enable it to consolidate democracy
and to ensure accountability, transparency and openness.62 The Report
argued that a radical reappraisal of the functions, structures, personnel
and management of the Office of the President was required to ensure
greater direction and co-ordination of government policy at all levels.63
Although not all the recommendations of the Review Commission
were implemented, it did lead to a bolstering of the administrative
capacity of the Office of the President and a greater centralisation of
power in this Office. This tendency continued during the term of
President Thabo Mbeki with some of his critics questioning what they
called the ‘excessive concentration of power’ in the Office of the
President.64
Another way of viewing this increased power of the Office of the
President is to focus on the manner in which the executive has
implemented the 1996 Constitution’s provisions regarding the President
and the national executive. This view argues that it gives effect to the
structure intended by the drafters of the Constitution.65 An alternative
viewpoint with regard to the increased power of the Office of the
President is to argue that the increased power of the Office of the
President reflects the balance of political forces between the three
branches of government. The power of the Office of the President has
further increased under President Jacob Zuma, who created two
additional Ministries in his office – that of the National Planning
Commission and that of the Minister of Performance and Evaluation.66

Does the Constitution concentrate too much

power in the hands of the President?
One could argue that politics is largely about who
decides, and who decides who decides. In other
words, power lies not only with the person who
ultimately makes a decision, but also with the person
who appoints the person who ultimately makes a
decision. The South African Constitution bestows wide
powers on the President not only to make decisions
about many important issues, but also to appoint
individuals to pivotal posts where they will make
decisions with far-reaching political consequences. In
November 2014, then Deputy Chief Justice Moseneke
delivered a keynote address in which he asked whether
the Constitution granted the President too much power.
Moseneke identified the problem as follows:
[A] careful examination of the powers of the national executive in
chapter 5 of the Constitution and in other legislation displays a
remarkable concentration of the President’s powers of
appointment. In a few instances the President exercises these
powers of appointment together with Parliament and other organs
of state. As for the rest, the President appoints within his
exclusive discretion. The anecdotal account is that at time of the
formulation of the final Constitution, whenever there was a
dispute about who should appoint a public functionary, the
negotiating parties were happy to leave the power in the
incumbent President, Nelson Mandela. He after all will do the
right thing … I refer to a few. Unlike other countries where the
Deputy President is a running mate, here he is appointed by the
President. This means he or she may be dismissed summarily by
the President. Our own history has shown how the dismissal of a
deputy president could be deleterious to the executive function.
The president appoints the Ministers of the Cabinet and Deputy
Ministers, leaders of government business to the National
Assembly[.56] He appoints all ambassadors. The President
appoints the Chief Justice and the Deputy Chief Justice after
consultation with the Judicial Service Commission and appoints
the President of the Supreme Court of Appeal. He is also
empowered to appoint the Judge President of the Land Claims
Court and Chairperson of the Competition Tribunal[60], and the
Judge President of Competition Appeal Court. He appoints all
judges on advice from the JSC and acting judges in consultation
with the Chief Justice. The President further appoints heads of
many vital public institutions; these include the National Director
of Public Prosecutions, the Public Protector, the Auditor-General
members of the South African Human Rights Commission the
Commission for Gender Equality and the Electoral Commission on
recommendation from the National Assembly and may remove
members of Chapter 9 on specified grounds. She appoints
commissioners of the Public Service Commission, the head of the
Defence Force and the military command of the Defence Force,
the head of the police, the head of the Intelligence Service and
members of the Financial and Fiscal Commission. Under a variety
of legislative instruments the President appoints the Statistician
General, the Governor and Deputy Governor of the South African
Reserve Bank, the Commissioner of South African Revenue
Service, Members of the Tax Court, members of Independent
Communications Authority of South Africa. As you would expect
powers of appointment are often coupled with powers of removal
albeit it subject to some prescribed process. 67

If one agrees with DCJ Moseneke, the problem remains

that the powers listed above must be exercised by
some or other person or institution. If the President
 should not exercise these powers, who should? Is
Parliament better placed to do so, or is there another
way of distributing these powers that would be more
compatible with democratic accountability?

The national Parliament is relatively weak due to the effects of the

electoral system and strict party discipline. In addition, the President
has so far always been the leader of the dominant party in Parliament.
Given these facts, it was inevitable that the powers of the President and
the executive would increase as they are mandated to give effect to the
policies and programmes of the political party elected by the vast
majority of South Africans to lead the country. Given these practical
political realities, it is important to focus on the constitutionally
imposed limits on the powers of the President and his or her executive.
As the powers of the Office of the President increase and as the electoral
dominance of the majority party is extended, it is inevitable that the
courts will be required to intervene and to check the exercise of power
of the President and other members of the executive where they
overstep their constitutionally granted authority.

5.2.3 The limits on the exercise of presidential power

As pointed out above, the President acts as both Head of State and as
head of the national executive and is granted wide powers to fulfil his or
her duties in this regard. The manner in which the President exercises
these powers, however, is subject not only to political constraints, but
also to formal and substantive constitutional constraints. It is important
to establish the formal and substantive limits placed on the exercise of
power by the President. This is because of the requirement that the
President must act in accordance with the provisions of the
Constitution and, in particular, with the Founding Values and the Bill of
Rights.
Several constitutional provisions place formal limits on the manner
in which the President must exercise his or her Head of State and head
of executive powers. For example, when appointing judges of the High
Court, the President has no discretion and must appoint the candidates
recommended by the Judicial Service Commission (JSC).68 Similarly,
when appointing the Public Protector, the Auditor-General and the
commissioners of the Human Rights Commission, the Commission for
Gender Equality and the Electoral Commission, the President acts ‘on
the recommendation of the NA’.69 In all of these instances, the President
does not exercise an independent discretion. Instead, he or she formally
appoints the candidates already selected by the NA.
In other cases, the President can only appoint a person with the
prescribed qualifications. For example, when appointing the head of
the National Prosecuting Authority (NPA) in terms of section 179(1)(a)
of the Constitution, read with section 9 of the National Prosecuting
Authority Act,70 the President can appoint only a fit and proper South
African citizen with due regard for his or her experience,
conscientiousness and integrity.
In Corruption Watch II, the Constitutional Court declared invalid
the President’s appointment of the National Director of Public
Prosecutions based on the manner in which the former National
Director of Public Prosecutions vacated his office. The Court held that
the appointment of the NDPP ‘was an act consequential upon the
constitutionally invalid vacation of office by Mr Nxasana [former
NDPP]’.71 According to the Court, because the manner in which Mr
Nxasana vacated office has been declared constitutionally invalid, it
follows that the appointment of the new NDPP was consequentially also
constitutionally invalid.72 It was further held that the President could
not extend the term of office of the NDPP as this would undermine the
independence of the NDPP.73 The President cannot suspend the NDPP
without pay and for an indefinite period, as this could compromise the
independence of the National Prosecuting Authority.74 All of this boils
down to the fact that in exercising his executive powers, the President
must act lawfully and rationally. In other words, because the President
removed the then NDPP unlawfully as he ‘bought him out’, the
President’s appointment of the new NDPP, as a consequence of the
unlawful removal of Mr Nxasana, was thus also unlawful.
 Moreover, when appointing the Chief Justice and Deputy Chief
Justice the President must first consult with the JSC and the leaders of
opposition parties in the NA.75 He or she must also consult the JSC
before appointing the President and Deputy President of the Supreme
Court of Appeal (SCA).76 Failure to adhere to these requirements would
render the appointments unlawful.77
In addition, a decision by the President must be in writing if it is
taken in terms of legislation or has legal consequences.78 Another
Cabinet member must countersign a written decision by the President if
that decision concerns a function assigned to that other Cabinet
member.79 For example, the decision by the President to appoint
ambassadors would have to be countersigned by the Minister of
International Relations.80
Apart from formal limits, the Constitution also places substantive
limits on the exercise of power by the President. Courts can review the
exercise of power by the President and set aside any decision by the
President on certain substantive grounds. This conclusion necessarily
flows from the fact that the Constitution is supreme 81 and that the rule
of law (and the doctrine of legality that forms part of the rule of law) is a
founding value of the Constitution. This means the exercise of the
powers by the President must not infringe any provision of the Bill of
Rights and, as is implicit in the Constitution, the President must act in
good faith and must not misconstrue his or her powers.82 These
constraints would have no force and effect if they could not be enforced
by the courts.
However, this invariably raises questions about the separation of
powers doctrine and to what extent judicial officers should intervene in
decisions taken by the President. On the one hand, the courts have to
balance their duty to enforce the provisions of the Constitution (in
particular the principle of legality) with, on the other hand, respect for
the fact that the decisions of the President and the executive often
contain a political component with which the courts should be slow to
interfere. We contend that, as a general rule, the more directly political
the discretion is that the President (or other members of the executive)
exercises, the more hesitant the courts will be to intervene.
 As implied above, many of these constraints also apply to other
members of the executive exercising public power. This means the
discussion below must be seen in a broader context and many of the
principles set out below also apply to other members of the Cabinet or
to provincial Premiers and MECs. There are at least three ways in which
the exercise of power by the President and other members of the
executive is substantively constrained by the Constitution.
The exercise of power by the President is constrained in that such an
exercise of power is, in principle, subject to the provisions contained in
the Bill of Rights.83 This means that when the President exercises any
power, he or she is constitutionally bound by the provisions of the Bill of
Rights and may not act (or cannot fail to act) in a manner that would
impermissibly infringe on one or more of the rights protected in the
Constitution. Thus, in President of the Republic of South Africa and
Another v Hugo, the Constitutional Court stated:
In respect of most of the [Head of State] powers … it is not difficult to conceive
of cases (extreme and unlikely as they may be) where some provision of the Bill
of Rights might be contravened, and especially the equality provisions
contained in section 8 [now section 9]. One or another of the powers, for
example, could be exercised, in a manner which excluded from consideration
persons of a particular religion or ethnic group … the fact that the arbitrary
exercise of the power to pardon may be a rarity is no ground for denying
constitutional review.84

However, as the Constitutional Court has pointed out, it may well be

that, because of the nature of the power or the manner in which it is
exercised by the President, the provisions of the Bill of Rights would
provide no ground for an effective review of a presidential exercise of
such a power.85 (However, the exercise of power by the President can
always still be reviewed under one of the other grounds explained
below.) This does not mean the Court would not have the power to
review any exercise of power by the President against the provisions of
the Bill of Rights – it has the power to do so in each and every case.
However, such an exercise may often not lead to an invalidation of the
President’s action because the Court could find that a specific right
cannot be effectively applied to test the President’s exercise of power.
For example, when the President exercises a purely political discretion
that affects only one individual, and where that exercise of power is
unconstrained by any constitutional or other legal requirements, it may
not be possible for the Court successfully to review this exercise of
power on the basis that it infringes on any of the rights guaranteed in
the Bill of Rights. Thus in the Hugo case, the Constitutional Court
argued that in cases where the President pardons or reprieves a single
prisoner in terms of section 84 of the Constitution, it is difficult to
conceive of a case where a constitutional attack could be mounted
against such an exercise of the presidential power on the basis that it
infringed any of the rights in the Bill of Rights.86
Another example would be cases where the President exercises his
or her power to appoint or dismiss the Deputy President and other
members of the Cabinet. The President is given a wide discretion to
appoint the Deputy President and the members of the Cabinet.87
Although he or she has to do so in a manner that complies with the Bill
of Rights in most cases it will not be possible to challenge the exercise of
this power on the basis that it infringes any of the rights guaranteed in
the Bill of Rights. The power to appoint Cabinet Ministers is a political
discretion entrusted to the President to give effect to the mandate of the
political party in government. It is thus difficult to see how a court
would be able to invoke the right to equality in the Bill of Rights if the
President fails to appoint a person to his or her Cabinet and that person
is a woman, or if the President dismisses a Cabinet Minister and that
Cabinet Minister has revealed his HIV-positive status or that she is a
lesbian. Such a move may be ethically problematic and some voters
may refuse to vote for the party to which the President belongs if it is
revealed that he or she harbours prejudices against people living with
HIV or who are gay or lesbian. While the exercise of this power by the
President may be tested on other grounds listed below, it is not easy to
see how a court would be able to declare the decision invalid on the
basis that it infringes the right to equality.
A practical example arose in Masetlha v President of the Republic of
South Africa and Another (Masetlha),88 where the decision of the
President to dismiss the head of the National Intelligence Agency (NIA)
was challenged. The basis of the challenge, among others, was that it
was unfair to do so because the President did not afford Mr Masetlha an
opportunity to be heard before the impending dismissal in
contravention of the common law administrative law right (now
codified in section 33 of the Bill of Rights). The Constitutional Court
focused on the nature of the power of the President to appoint and
dismiss the head of the NIA as set out in section 209(2) of the
Constitution.89 The Court dismissed the challenge, arguing that the
dismissal constituted executive action rather than administrative
action, particularly in this special category of appointments of members
to the NIA. According to the Court, it would not be appropriate to
constrain the exercise of executive power in the context of a dismissal of
the head of the NIA by enforcing the constitutional requirements for
procedural fairness. These powers to appoint and to dismiss are
conferred specially on the President for the effective business of
government and, in this particular case, for the effective pursuit of
national security.90 The Court quoted from its judgment in Premier,
Province of Mpumalanga and Another v Executive Committee of the
Association of Governing Bodies of State Aided Schools: Eastern
Transvaal 91 where it cautioned that procedural fairness should not be
made a requirement for the exercise of every decision by the executive
(despite the fact that section 33 contains a specific administrative
justice clause). The Court stated that:
In determining what constitutes procedural fairness in a given case, a court
should be slow to impose obligations upon government which will inhibit its
ability to make and implement policy effectively (a principle well recognised in
our common law and that of other countries). As a young democracy facing
immense challenges of transformation, we cannot deny the importance of the
need to ensure the ability of the Executive to act efficiently and promptly.92

Despite this warning, the courts have consistently asserted the principle
that all decisions by the President are reviewable, if not on the basis that
the decision contravenes the provisions of the Bill of Rights, then on
other grounds that flow from the fact that the Constitution is supreme
and that one of the founding values of the constitutional dispensation is
respect for the rule of law.93 The answer to the question of whether the
exercise of power by the President in a particular case could be tested
against the provisions of the Bill of Rights will be determined with
reference to the nature of the power exercised and the context in which
it is exercised. Where the President exercises a discretion in an
individual case, affecting only one person, and where the power in
terms of which the discretion is exercised is a Head of State power or a
power conferred on the President as part of his or her political duties as
head of the executive, it would be difficult to challenge that decision on
the basis that it infringed one of the rights in the Bill of Rights. However,
where the President exercises a general discretion affecting large
numbers of people, the situation may well be different.

Limits placed by the Constitution on the

exercise of Head of State powers
In President of the Republic of South Africa and Others
v South African Rugby Football Union and Others
(SARFU III),94 the decision by the President as Head of
State to appoint a commission of enquiry to
investigate the administration of rugby in South Africa
was challenged on several grounds. One ground was
that the President, when exercising the power to
appoint a commission of enquiry, was obliged to afford
those being investigated with a hearing before
appointing the commission.
The Constitutional Court overturned a High Court
decision which had found that such a duty did indeed
exist. The Constitutional Court pointed out that
although the exercise of all public power is regulated
by the Constitution, it is done in different ways. The
Court further pointed out that the Head of State powers
conferred by section 84(2) are original constitutional
powers that must be distinguished from the head of
the executive powers. The Constitution places explicit
limits on the exercise of some of these powers.
 However, the remaining section 84(2) powers are
discretionary powers conferred on the President which
are not constrained in any express manner by the
provisions of the Constitution. Their scope is narrow:
the conferral of honours; the appointment of
ambassadors; the reception and recognition of foreign
diplomatic representatives; the calling of referenda; the
appointment of commissions of enquiry and the
pardoning of offenders. They are closely related to
policy; none of them is concerned with the
implementation of legislation. Several of these
decisions result in little or no further action by the
government, for example the conferral of honours, the
appointment of ambassadors or the reception of
foreign diplomats. When exercising these powers, the
requirements of administrative law (enshrined in
section 33 of the Constitution) could therefore not be
applied to these Head of State powers. The
Constitution therefore placed no obligation on the
President to afford a hearing to those affected by the
appointment of such a commission before he or she
made the decision to appoint the commission. The
Court then proceeded to remark as follows about the
limits placed on the exercise of these Head of State
powers by the President:
In the case of the appointment of commissions of inquiry, it is
well-established that the functions of a commission of inquiry are
to determine facts and to advise the President through the
making of recommendations. The President is bound neither to
accept the commission’s factual findings nor is he or she bound
to follow its recommendations. A commission of inquiry is an
adjunct to the policy formation responsibility of the President. It is
a mechanism whereby he or she can obtain information and
advice. When the President appointed the commission of inquiry
into rugby he was not implementing legislation; he was exercising
an original constitutional power vested in him alone. Neither the
subject matter, nor the exercise of that power was administrative
in character. The appointment of the commission did not,
 therefore, constitute administrative action within the meaning of
section 33 … It does not follow, of course, that because the
President’s conduct in exercising the power conferred upon him by
section 84(2)(f) does not constitute administrative action, there
are no constraints upon it. The constraints upon the President
when exercising powers under section 84(2) are clear: the
President is required to exercise the powers personally and any
such exercise must be recorded in writing and signed; … the
exercise of the powers must not infringe any provision of the Bill
of Rights; the exercise of the powers is also clearly constrained by
the principle of legality and, as is implicit in the Constitution, the
President must act in good faith and must not misconstrue the
powers.95

The SARFU III judgment therefore illustrates the fact

that although the Constitution places limits on the
exercise of the Head of State powers, these limits do
not go as far as requiring the President always to
consult those affected by a decision when he or she
exercises this power or to adhere to the other
requirements for just administrative action. As we shall
see in the next section, the Constitutional Court later
developed this point and added an important
qualification to this general statement that the
President was free to exercise the unqualified Head of
State powers without consulting those affected.96

The exercise of power by the President (and other members of the

executive) is further constrained by the requirement that such power
must be duly authorised by the Constitution or some other
constitutionally valid law. This means that whenever the President
exercises his or her powers, this power must be sourced from the
Constitution or legislation or must implicitly be derived from it. Put
differently, the President cannot act lawfully unless he or she is
authorised to exercise a specific power by the Constitution or by other
valid law. The authority to act can be conferred explicitly or implicitly.
In Masetlha one of the legal questions which arose was whether the
President was constitutionally authorised to dismiss the head of the
NIA. Section 209 of the Constitution authorises the President, as head of
the national executive, to ‘appoint a woman or a man as head of each
intelligence service’. However, the provision is silent on whether the
President has the authority also to dismiss the head of each intelligence
service. The Constitutional Court held that the power to dismiss in this
case is necessary in order to exercise the power to appoint:
Without the competence to dismiss, the President would not be able to remove
the head of the Agency without his or her consent before the end of the term of
office, whatever the circumstances might be. That would indeed lead to an
absurdity and severely undermine the constitutional pursuit of the security of
this country and its people. That is why the power to dismiss is an essential
corollary of the power to appoint and the power to dismiss must be read into
section 209(2) of the Constitution.97

When the President is authorised by an Act of Parliament to exercise a

power, that authorisation is required to be constitutionally valid.
Parliament cannot delegate a power to the President if that delegation
of legislative authority itself is not authorised by the Constitution. For
example, Parliament cannot delegate its own plenary legislative power
conferred on it by the Constitution to another body or person, including
the President. In any given case, the question whether Parliament is
entitled to delegate its own powers to the President must depend on
whether the Constitution permits the delegation. This is so because the
authority of Parliament to make laws, and so too to delegate that
function, is subject to the Constitution. Thus, whether Parliament may
delegate its law-making power or regulatory authority is a matter of
constitutional interpretation dependent, in most part, on the language
and context of the empowering constitutional provision.98
In Executive Council of the Western Cape Legislature and Others v
President of the Republic of South Africa and Others, Chaskalson P stated
that our 1993 and 1996 Constitutions represent a clear break from the
past as the Constitution is now supreme and the Constitution provides
law-making powers for the legislature, not the executive.99 This does not
mean that the power to issue subordinate legislation cannot be
delegated to the executive. However, it does mean that usually the
power of the legislature to delegate the power to amend or repeal
legislation would not be permitted. This is because it would interfere
with the ‘manner and form’ requirements in the Constitution which
describe how laws are to be made.100 Thus Parliament cannot delegate
to the President an unrestricted power to amend legislation unless it is
absolutely necessary, for example in a time of war or another
exceptional situation. This is important because otherwise one would
allow control over legislation to pass from Parliament to the executive.
This could then be used to introduce contentious provisions in an Act,
would undermine Parliament and would breach the separation of
powers.101
As we have already noted in chapter 4 of this book, in 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,102 the President purported to extend the term
of office of the then Chief Justice by relying on section 8(a) of the
Judges’ Remuneration and Conditions of Employment Act.103 Section
8(a) granted the President the power to extend the term of office of the
Chief Justice and reads as follows:
A Chief Justice who becomes eligible for discharge from active service in terms
of section 3(1)(a) or 4(1) or (2), may, at the request of the President, from the
date on which he or she becomes so eligible for discharge from active service,
continue to perform active service as Chief Justice of South Africa for a period
determined by the President, which shall not extend beyond the date on which
such Chief Justice attains the age of 75 years.

However, section 176(1) of the Constitution states:

A Constitutional Court judge holds office for a non-renewable term of 12 years,
or until he or she attains the age of 70, whichever occurs first, except where an
Act of Parliament extends the term of office of a Constitutional Court judge.

The Constitutional Court found that the power to extend the term of
office is explicitly conferred on Parliament and not on the President.
The Court stated that section 176(1) contains clear textual indicators
that the Constitution does not empower Parliament to delegate the
power to extend the term of service of a judge of the Constitutional
Court as was purportedly done by section 8(a) of the Judges’
Remuneration and Conditions of Employment Act. The Court
confirmed that where the doctrine of parliamentary sovereignty
governs, Parliament may delegate as much power as it chooses. In a
constitutional democracy, however, Parliament may not ordinarily
delegate its essential legislative functions. In this case, the power to
extend the term of a Constitutional Court judge goes to the core of the
tenure of the judicial office, judicial independence and the separation
of powers and was therefore deemed to be an essential legislative
function that could not be delegated. As the Court stated:
The term or extension of the office of the highest judicial officer is a matter of
great moment in our constitutional democracy … The 2001 amendment
requires an Act of Parliament to extend the term of office. It requires
Parliament itself to set the term of office … Another important consideration in
deciding whether section 8(a) is constitutionally compliant is the
constitutional imperative of judicial independence. This Court is the highest
court in all constitutional matters. The independence of its judges is given
vigorous protection by means of detailed and specific provisions regulating
their appointment. The Chief Justice is at the pinnacle of the judiciary and thus
the protection of his or her independence is just as important. It is so that
section 176(1) of the Constitution creates an exception to the requirement that
a term of a Constitutional Court judge is fixed. That authority, however, vests in
Parliament and nowhere else. It is notable that section 176(1) does not merely
bestow a legislative power, but by doing so also marks out Parliament’s
significant role in the separation of powers and protection of judicial
independence. The nature of this power cannot be overlooked, and the
Constitution’s delegation to Parliament must be restrictively construed to
realise that protection. Accordingly, section 8(a) violates the principle of
judicial independence. This kind of open-ended discretion may raise a
reasonable apprehension or perception that the independence of the Chief
Justice and by corollary the judiciary may be undermined by external
interference of the Executive. The truth may be different, but it matters not.
What matters is that the judiciary must be seen to be free from external
interference.104

One of the most important ways in which the exercise of power by the
President is controlled is through the requirement that when exercising
any duly authorised power, the President has to act rationally. This
requirement stems from the principle that when the President (or other
members of the executive) exercises power, he or she is constrained by
the principle of legality (an incidence of the Rule of Law) in the sense
that he or she is required to act rationally and in good faith.105 The
requirement that the President must act rationally when exercising his
or her power ‘is a minimum threshold requirement applicable to the
exercise of all public power by members of the executive and other
functionaries’.106 Action that fails to pass this threshold is inconsistent
with the requirements of our Constitution and therefore unlawful.
The rationality test must be distinguished from the test for
reasonableness. The reasonableness standard asks whether the decision
was one ‘that a reasonable decision-maker could not reach’.107
Rationality requires something different. In Albutt v Centre for the
Study of Violence and Reconciliation and Others, the Constitutional
Court explained the rationality standard as follows:
The Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not interfere with the
means selected simply because they do not like them, or because there are
other more appropriate means that could have been selected. But, where the
decision is challenged on the grounds of rationality, courts are obliged to
examine the means selected to determine whether they are rationally related
to the objective sought to be achieved. What must be stressed is that the
purpose of the enquiry is to determine not whether there are other means that
could have been used, but whether the means selected are rationally related to
the objective sought to be achieved. And if objectively speaking they are not,
they fall short of the standard demanded by the Constitution.108

In Democratic Alliance v President of South Africa and Others, the

Constitutional Court further explained that a:
rationality review is really concerned with the evaluation of a relationship
between means and ends: the relationship, connection or link (as it is variously
referred to) between the means employed to achieve a particular purpose on
the one hand and the purpose or end itself. The aim of the evaluation of the
relationship is not to determine whether some means will achieve the purpose
better than others but only whether the means employed are rationally related
to the purpose for which the power was conferred. Once there is a rational
relationship, an executive decision of the kind with which we are here
concerned is constitutional.109

Rationality is a standard that will usually be easy for the President to

meet. Where the courts test the actions of the President for rationality,
they cannot substitute their opinions as to what is appropriate for the
opinions of the President. They also cannot declare invalid an action of
the President merely because they disagree with the wisdom of the
presidential decision. As long as the purpose the President seeks to
achieve by the exercise of public power is within his or her authority,
and as long as the President’s decision, viewed objectively, is rational, a
court cannot interfere with the decision simply because it disagrees
with it or considers that the power was exercised inappropriately.110
The requirement that the President must act rationally means that
there must be a rational relationship between the constitutionally
permissible purpose the President seeks to achieve, on the one hand,
and the manner in which the President exercises the power or the
means used to achieve the purpose on the other hand. The President
(and other members of the executive) usually has a wide discretion in
selecting the means to achieve his or her constitutionally permissible
objectives. Courts may not interfere with the means selected simply
because they do not like them or because there are other more
appropriate means that the President could have selected.
Furthermore, if the President were to abuse the power vested in him
or her, a court would be able to review and set aside this exercise of
power. For instance, a decision to grant a pardon in consideration for a
bribe could no doubt be set aside by a court. This would also be the case
if the President were to misconstrue his or her powers. This is so
because the exercise of all public power – including the exercise of
power by the President – must comply with the Constitution, which is
the supreme law, and the doctrine of legality, which is part of the rule of
law.111 It follows further that the exercise of a power lawfully granted to
the President must be rationally related to the purpose sought to be
achieved by the exercise of it.112
In Albutt, the Constitutional Court affirmed the principle that to
determine whether there is a rational connection between a legitimate
purpose and the decision of the President, both the process by which
the decision is made and the decision itself must be rational.113 Where
the purpose of the exercise of the President’s power to pardon is to seek
or achieve reconciliation, the means used to achieve this legitimate
purpose will not be rationally related to the purpose if the procedure by
which the decision was taken did not provide an opportunity for victims
or their family members to be heard. One of the principles that
underpinned the amnesty process was the participation of victims in
seeking to achieve national unity and reconciliation. It is these
principles and values that must underpin the special dispensation
process.
The Constitutional Court further elaborated on this principle
requiring both a rational decision and a rational process in Democratic
Alliance. The Court found in this case that the purpose of appointing a
National Director of Public Prosecutions (NDPP) was closely linked to
the fact that the President was required to appoint a conscientious
person of integrity to that post and that dishonesty was incompatible
with this goal. Given the need for a rational relationship between
achieving this purpose and the process used, the President should have
initiated a further investigation for the purpose of determining whether
the real and important questions which had been raised about the
President’s selected appointee to the post of NDPP rendered the
appointment inappropriate. Where the President had ignored adverse
findings as to the honesty of the appointee made by another body, there
was no rational process followed.114

Variable standards for the rationality review

undermine respect for the rule of law
Du Plessis and Scott argue that the Constitutional
Court judgments based on legality challenges use
different levels of scrutiny and that in relation to the
rationality review the standard ‘varies depending on
the circumstances of the particular case. In some
instances the court will apply the test stringently, but in
others the court takes a far more deferential
approach’.115 They complain that with variability comes
uncertainty. ‘A central and current problem with the
variability of rationality review is the lack of guidance
laid down by the Constitutional Court as to the
standard’s parameters and applicability.’ 116 This, they
claim, among other problems, undermines respect for
the rule of law and justify this as follows:
First, it causes problems for potential litigants who need to
decide whether to challenge decisions or conduct that has
affected them. Secondly, it creates difficulties for lawyers who
have to advise these clients on their potential prospects of
success. Due to the huge expense and far-reaching consequences
of pursuing litigation for the litigants, lawyers should be able to
do more than merely give vague statements about a litigant’s
prospects of success. With the increasingly variable nature of
rationality review comes a concomitant decrease in the certainty
with which legal representatives are able to advise clients who are
contemplating a rationality challenge. While the goal is not rigid
legal certainty, there must at least be some form of clarity or
reasonable predictability on the approach that will be adopted by
a court. Without this clarity comes the risk that the law is failing
to meet the requirements clearly set out in the Hugo case. Finally,
the lack of clear guidelines creates uncertainty for the High
Courts that need direction on how to apply the rationality
standard. Woolman neatly captures the problems associated with
a lack of judicial guidelines: ‘An approach to constitutional
adjudication that makes it difficult for lower court judges, lawyers,
government officials and citizens to discern, with some degree of
certainty, how the basic law is going to be applied, and to know,
with some degree of certainty, that the basic law is going to be
applied equally, constitutes a paradigmatic violation of the rule of
law.’ These problems, relating to the confusion created by the lack
of guidelines, are compounded by the importance of the safety-
net function of the principle of legality, since a legality challenge
may be an applicant’s only available avenue to challenge
conduct.117

The authors point out that this variable standard is

even more problematic if one considers that in many
instances the information necessary to determine
whether there was a rational link between the purpose
and the means used to achieve it, ‘lies within the
exclusive knowledge of the state body’.118 In such
situations it would be extremely difficult for the
objector to discharge the burden of proof. They therefore
 suggest that in such cases if the objector makes a
detailed written request to the state for the reasons
and purpose of the conduct, and the state either fails
to give any reasons for the conduct or merely gives
perfunctory reasons, then in these situations it is the
government which ought to bear the onus of proving
that the conduct was rational or suffer the
consequences of the court drawing adverse
conclusions as to the government’s justification.
Although the objection might be raised that this will
place too much of a burden on the government, ‘any
increased burden is greatly tempered by the low
standard the government has to meet in order to
satisfy the test’.119

Although the exercise of power by the President is thus always in

principle reviewable by the courts on the grounds set out above, at least
two caveats must be raised. First, in Minister of Home Affairs v
Liebenberg,120 the Constitutional Court pointed out that when taking the
President to court, it would be important to avoid imprecise and open-
ended citing of the President in litigation. When asking a court to
declare conduct of the President unconstitutional, it is necessary to
indicate precisely which conduct is attributable to the President and
falls foul of the Constitution.121 As the Constitutional Court stated in Von
Abo v President of the Republic of South Africa:
This requirement is important for at least two reasons. One important reason is
that a concisely worded order would disclose the character of the conduct of
the President in issue and thereby indicate whether the court concerned was
properly clothed with jurisdiction to resolve the dispute. Also the President, as
respondent is entitled to know which conduct has offended in order to decide
whether to appeal or to correct the constitutionally recalcitrant conduct in
issue.122

A second caveat relating to the review of the exercise of power by the

President is that when a court is required to do so it will not ordinarily
require the President to give oral evidence in person. In SARFU III, the
Constitutional Court found that this was a question ‘of considerable
constitutional significance going to the heart of the separation of
powers under our Constitution’.123 When making a decision on whether
to call the President as a witness, courts will have to consider two
competing considerations. First, courts are obliged to ensure that the
status, dignity and efficiency of the Office of the President is protected.
At the same time, however, the administration of justice cannot and
should not be impeded by a court’s desire to ensure that the dignity of
the President is safeguarded.124 As the Court explained in SARFU III:
We are of the view that there are two aspects of the public interest which might
conflict in cases where a decision must be made as to whether the President
ought to be ordered to give evidence. On the one hand, there is the public
interest in ensuring that the dignity and status of the President is preserved and
protected, that the efficiency of the executive is not impeded and that a robust
and open discussion take place unhindered at meetings of the Cabinet when
sensitive and important matters of policy are discussed. Careful consideration
must therefore be given to a decision compelling the President to give evidence
and such an order should not be made unless the interests of justice clearly
demand that this be done. The judiciary must exercise appropriate restraint in
such cases, sensitive to the status of the head of state and the integrity of the
executive arm of government. On the other hand, there is the equally
important need to ensure that courts are not impeded in the administration of
justice.125

5.3 The Deputy President and the rest of the Cabinet

5.3.1 Appointment and removal

The Cabinet consists of the President, the Deputy President and other
Cabinet Ministers.126 The President appoints and may also dismiss the
Deputy President as well as the other members of the Cabinet.127 The
Deputy President must be appointed from among the members of the
NA.128 All but two members of the Cabinet must similarly be appointed
from among the members of the NA.129 The requirement that all but two
of the members of the Cabinet simultaneously have to serve as
members of the NA affirms the principle of parliamentary government,
mirroring to some degree the Westminster system. This, in theory,
ensures that the executive is more directly accountable to the electorate
because it allows the democratically elected NA to control the conduct
of the executive.130 This requirement waters down the strict separation
between the legislature and the executive as almost all the members of
the executive (except for the President and no more than two Cabinet
Ministers) at all times also serve as members of the legislature.
This arrangement was challenged during the certification process
of the Constitution on the ground that members of the Cabinet
continue to be members of the legislature and, by virtue of their
positions, are able to exercise a powerful influence over the decisions of
the legislature. It was contended that this is inconsistent with the
separation of powers doctrine as applied in the United States of
America, France, Germany and the Netherlands. The Constitutional
Court rejected this argument, noting that there is no universal model of
separation of powers. In democratic systems of government in which
checks and balances result in the imposition of restraints by one branch
of government on another, there is no separation that is absolute.131 The
Court stated that:
The principle of separation of powers, on the one hand, recognises the
functional independence of branches of government. On the other hand, the
principle of checks and balances focuses on the desirability of ensuring that the
constitutional order, as a totality, prevents the branches of government from
usurping power from one another. In this sense it anticipates the necessary or
unavoidable intrusion of one branch on the terrain of another. No
constitutional scheme can reflect a complete separation of powers: the scheme
is always one of partial separation.132

The fact that this overlap in personnel provides an important

mechanism by which the legislature is able to check the exercise of
power by the executive is emphasised by the provisions of section 92(2)
of the Constitution. This section indicates that members of the Cabinet
are ‘accountable collectively and individually to Parliament for the …
performance of their functions’, a point to which we shall return in the
next section.
The provision that allows the President to appoint two members to
the Cabinet who are not members of the NA creates the opportunity for
the President to appoint members to the Cabinet with special skills or
knowledge. This provision can be used to appoint members to the
Cabinet who are not active members of the governing party or who are
not politicians at all.
The President133 or the NA134 can remove the Deputy President and
the other members of the Cabinet from office. The power of the
President to dismiss members of his or her Cabinet is political in nature
and will usually be exercised after consultations with the leadership of
the majority party (although this is not a constitutional requirement). In
a concurring judgment in Masetlha, Sachs J argued that there was a
‘qualitative distinction’ between the dismissal by the President of a
Cabinet Minister or Deputy President, on the one hand, and his or her
dismissal of other appointees like the head of the NIA, on the other. This
is because the former appointees are ‘purely political appointees placed
in positions of governmental leadership’.135 According to Sachs J,
‘[m]embers of Cabinet know that they are hired and can be fired at the
will of the President; and if fired, they can mobilise politically, go to the
press, even demonstrate outside Parliament, and hope to muster
support for themselves at the next congress of their party’.136 This
suggests that when the President fires his or her Deputy President or
another Cabinet Minister, the ordinary constitutional and legislative
requirements relating to fair labour practice do not apply.137
In terms of section 102(1) of the Constitution, the NA can also pass a
vote of no confidence with a simple majority vote in the Cabinet
(excluding the President), after which the President must reconstitute
the Cabinet. This means that where the NA retains confidence in the
President but has lost confidence in one or more members of the
President’s Cabinet, it can force the President to fire the Cabinet
Minister or Ministers in whom it has lost confidence. This is distinct
from a motion of no confidence passed in terms of section 102(2) which
would require the President and the Cabinet to resign.
In theory, section 102(1) of the Constitution provides the NA with a
powerful tool to hold individual members of the Cabinet accountable.
However, it is unlikely that the NA would pass a vote of no confidence in
the Cabinet. This is because the President and his or her Cabinet are
almost always members of the majority party in the NA and because
most of the members of the majority party in the NA are more junior
members of the same party as the President and the Cabinet. A vote of
no confidence in the Cabinet would probably only happen if the elected
leadership of the governing party instructed its members in the NA to
pass such a vote of no confidence. This could happen if the party
elected new leaders at its elective conference while the President and
the Cabinet were perceived to be loyal to the outgoing leadership. It
could also happen if there was a coalition government and a majority of
members in the NA were unhappy with the performance of one or more
members of the coalition Cabinet.

The actual power of party leadership on our

system of government
In 2007 at its Polokwane conference, the ANC elected
a new president, a new set of the ‘top six’ office-
bearers of the party as well as a newly constituted
National Executive Committee (NEC). President Thabo
Mbeki and the candidates proposed by his supporters
for leadership positions in the ANC were defeated at
this conference, but at first President Mbeki and his
Cabinet continued to serve in the executive
undisturbed. As we have seen, the NEC eventually
decided to ‘recall’ President Mbeki who then resigned
as President of the country. The ANC NEC could also
alternatively have decided, although it did not do so, to
retain President Mbeki as President of the country
while demanding that he reconstitute his Cabinet to
appoint the newly elected members of the ANC top
leadership to the Cabinet. If the President had then
refused to do so, the NEC would have been able to rely
on section 102(1) of the Constitution and could have
instructed its members in the NA to adopt a vote of no
confidence in the Cabinet (excluding the President).
The President would then have been forced to
 implement the decision of the NEC. This imaginary
scenario, unlikely as it may be, illustrates the actual
power of the leadership of the governing party in our
system of government even where members of that
leadership are neither members of the executive nor
members of the NA.

5.3.2 Powers of the Deputy President and the Cabinet

Although section 85(2) of the Constitution provides that the President
must exercise his or her executive authority together with the Deputy
President and the other members of the Cabinet, as a general rule, it
does not confer any specific powers and functions on the Deputy
President and the other members of the Cabinet. Instead, section 91(2)
of the Constitution simply states that the President assigns powers and
functions to the Deputy President and Ministers and section 91(5)
states that the Deputy President must assist the President in the
execution of the functions of government.
An important consequence of these provisions is that the specific
powers and functions of the Deputy President are determined by the
President. Depending on the relationship between the President and
the Deputy President and the relative influence and power of these two
people in the governing party, the Deputy President could either fulfil a
mostly ceremonial role or could emerge as a powerful de facto Prime
Minister.138
While the Constitution does not, as a general rule, assign specific
powers and functions on the Deputy President, there are some
exceptions. The most important of these is the power to act as President
when the President is absent from the Republic or otherwise unable to
fulfil the duties of President, or during a vacancy in the office of the
President.139 This means if the President resigns, or dies in office, the
Deputy President will automatically act as President until a new
President is elected. As noted above, it may also mean that when the
President is conflicted and therefore unable to exercise a specific power,
the Deputy President is required to exercise that power instead.140
In the same way that the President must assign powers and
functions to the Deputy President, he or she must also assign powers
and functions to the various Ministers.141 The President usually
accomplishes this task by establishing and assigning different portfolios
to different Ministers and by assigning the administration and
implementation of specific pieces of legislation to individual Ministers.
These Ministers are then responsible for the exercise of power in terms
of the legislation assigned to them.
Members of the Cabinet are accountable individually to the
President and to the NA for the administration of their portfolios.142
They are required to administer their portfolios in accordance with the
policy determined by the Cabinet.143 In a case that dealt with the
relationship between Premiers and provincial MECs, but must equally
apply to the Cabinet, the Eastern Cape High Court found that the
President ‘bears ultimate responsibility’ for ensuring that the national
government complies with the law and the other Cabinet members bear
the responsibility for operations in their departments.144
Members of the Cabinet are also collectively and individually
accountable to Parliament for the exercise of their powers and the
performance of their functions.145 They are correspondingly collectively
accountable for the performance of the functions of the national
government and for its policies.146 This principle of Cabinet solidarity
emphasises the fact that executive authority in South Africa is a
collaborative venture and that members of the Cabinet must act
together and must share responsibility for their actions.147 This notion of
Cabinet solidarity finds application in two different ways:
• First, as we have seen, the Constitution requires the Cabinet as a
collective to retain the confidence of the NA, which can pass a vote
of no confidence in the Cabinet (excluding the President) if the
Cabinet fails to do so.
• Second, section 85(2) 148 read with section 92(2) of the Constitution
suggests that the Cabinet has a duty to act together as they are
collectively accountable to Parliament for the decisions of the
 Cabinet. Cabinet members may disagree with one another when
they debate an issue to decide the position of the Cabinet, but once
such a decision has been taken, the members of the Cabinet have to
take collective accountability for the decisions of the Cabinet. In
theory, if an individual member of the Cabinet cannot tolerate or
defend a decision of the Cabinet, he or she has the option to resign
from the Cabinet.149

Ministers are not only collectively accountable for the decisions and
actions of the Cabinet as a whole. Section 92(2) of the Constitution also
holds the Cabinet individually accountable to Parliament. Individual
accountability ensures that Parliament can identify the Cabinet
member responsible for a particular issue and can take action to hold
that Cabinet member accountable. As we have seen, the Constitution
bestows wide powers on Parliament to enable it to hold the individual
members of the Cabinet accountable. Moreover, in terms of section
92(3)(b) of the Constitution, Cabinet members are compelled to
provide Parliament with full and regular reports concerning matters
under their control. Collective ministerial accountability means that
Cabinet members ‘act in unison to the outside world and carry joint
responsibility before Parliament for the way in which each member
exercises or performs powers and functions’.150
According to Rautenbach and Malherbe,151 individual responsibility
entails the following:
• a duty to explain to Parliament how the powers and duties under his
or her control have been exercised and performed (the Constitution
provides that members of the Cabinet must act in accordance with
the Constitution and provide Parliament with full and regular
reports concerning matters under their control)
• a duty to acknowledge that a mistake has been made and to promise
to rectify the matter
• a duty to resign if personal responsibility has been accepted.152

Both the individual and collective responsibilities of Cabinet members

are reinforced by section 96 of the Constitution which regulates their
ethical conduct.153 Section 96 provides that members of the Cabinet and
Deputy Ministers must act in accordance with a code of ethics
prescribed by legislation. They may not undertake any other paid work,
act in a way that is inconsistent with their office, expose themselves to
any situation involving the risk of a conflict between their official
responsibilities and private interests, or enrich themselves or
improperly benefit any other person.154 In terms of section 2(1) of the
Executive Members’ Ethics Act,155 the President publishes the Executive
Ethics Code with which Members of the Cabinet, Deputy Ministers and
Members of Provincial Executive Councils must comply in performing
their official responsibilities. This Code provides, inter alia, that
Members of the Executive must:
a) perform their duties and exercise their powers diligently and
honestly
b) fulfill all the obligations imposed upon them by the Constitution
and law
c) act in good faith and in the best interest of good governance
d) act in all respects in a manner that is consistent with the integrity of
their office or the government.

This Code also prohibits members of the executive from:

a) wilfully misleading the legislature to which they are accountable
b) wilfully misleading the President or Premier, as the case may be
c) acting in a way that is inconsistent with their position
d) using their position or any information entrusted to them, to enrich
themselves or improperly benefit any other person
e) using information received in confidence in the course of their
duties otherwise than in connection with the discharge of their
duties
f ) exposing themselves to any situation involving the risk of a conflict
between their official responsibilities and their private interests
g) receiving remuneration for any work or service other than for the
performance of their functions as members of the Executive
h) making improper use of any allowance or payment properly made
to them, or disregard the administrative rules, which apply to such
 allowance or payments.

Finally, it provides that Members of the executive:

a) must declare any personal or private financial or business interest
b) may not solicit or accept a gift or benefit which is in return for any
benefit received from the member in the member’s official capacity,
constitutes improper influence on the member, or constitutes an
attempt to influence the member in the performance of the
member’s duties
c) must disclose to the Secretary particulars of all the financial
interests, including shares and other financial interests in
companies and other corporate entities, and sponsorships.

Alleged breaches of the Ethics Code must be investigated by the Public

Protector in accordance with the provisions of the Public Protector
Act.156 The Act empowers the Public Protector to investigate any alleged
breach of the code of ethics on receipt of a complaint and to submit a
report of such investigation to the President or the premier as the case
might be.157 The President or the Premier, as the case may be, must
within a reasonable period but not later 14 days of receipt of the Public
Protector’s report submit the same to the National Assembly in the case
of a report on a Cabinet member or Deputy Minister, or to the National
Council of Provinces in the case of a report on the Premier. The Premier
has a similar obligation to submit the report on a Member of the
Executive Council within a reasonable period after receipt of the same
but not later than 14 days.158
The other members of the Cabinet are constrained in a similar
manner to that in which the President is constrained in the exercise of
their duties. As we pointed out above, when exercising public power in
terms of the Constitution, the President as well as other members of the
Cabinet are required to exercise their powers personally. In the case of
Cabinet Ministers, these powers would have been delegated to them by
the President or would derive from legislation whose administration the
President had assigned to them in terms of sections 92(1), 98 or 99 of
the Constitution.
 Furthermore, the exercise of the powers by members of the Cabinet
must not infringe any provision of the Bill of Rights. Lastly, the exercise
of the powers by members of the Cabinet is also 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. These significant constraints flow from the supremacy of
the Constitution and the demands of the legality principle that is an
incidence of the rule of law.

The role of the Deputy President

The Constitution does not define the powers of the
Deputy President. The Constitution merely states that
the Deputy President ‘must assist the President in the
execution of the functions of government’.159 The
President therefore decides to what extent the Deputy
President is involved in the day-to-day affairs of the
government. The question is whether this leeway
should be used to make a sharper distinction between
the role of the President and the Deputy President,
with the former playing a more ceremonial role above
the fray of day-to-day politics while the latter in effect
acts as a Prime Minister.
Some point to the French system as a possible
model. In France, the President is directly elected by
the French people every five years. The French
Constitution declares the President Head of State and
gives the President control over foreign policy and
defence. After parliamentary elections, which are held
every five years or sooner if the President calls them,
the President appoints a Prime Minister. The
appointment requires the approval of Parliament so the
Prime Minister almost always comes from the party
that controls the legislature. The Prime Minister serves
 as head of government and is in charge of domestic
policy and day-to-day governing. The Prime Minister
also recommends for presidential approval the other
members of his or her Cabinet.
When the directly elected President represents a
different party to that of the Prime Minister, a system
of ‘cohabitation’ ensues. The President has to share
power with a Prime Minister from a different party and
this can lead to gridlock. In South Africa, such a
situation will not arise as the President and the Deputy
President will be from the same political party. The
advantages of bestowing more power to deal with the
domestic policy agenda on the Deputy President,
acting as de facto Prime Minister as is the case in
France, are that it allows the division of labour and
could potentially improve the effectiveness of the
government. The dangers of such a system are that two
centres of power will develop and the conflict between
the President and Deputy President will paralyse the
government.

SUMMARY

The national executive comprises the President, the Deputy President

and the members of the Cabinet. The President is elected by the NA and
the President and his or her Cabinet must retain the confidence of the
majority of members of the NA to ensure the continued functioning of
the government. The President acts as Head of State and as head of the
executive, and in the latter case must act with the responsible member
of Cabinet who must countersign decisions relating to his or her
portfolio.
When the NA passes a vote of no confidence in the President in
terms of section 102 of the Constitution, the President and his or her
Cabinet must resign. The President can also be impeached by the NA in
terms of section 89 of the Constitution for serious violations of the
Constitution, for serious misconduct or for reasons of incapacity. In
theory, this means the NA is more powerful than the President and his
or her Cabinet as it elects the President and can also dismiss the
President. However, because the President and his or her Cabinet are
usually the leaders of the majority party and control the party, it would
only be in exceptional cases where the NA would be able to assert its
power over the executive branch of government. Members of the
Cabinet can, however, be held accountable by the NA.
The exercise of powers by either the President or other members of
the Cabinet is constrained. Because of the supremacy of the
Constitution, the exercise of power by the President and the Cabinet
must always be authorised by and conform to the requirements of the
Constitution and ordinary legislation. This means that the power of the
President and the Cabinet can be checked by the judiciary. The
constraints on the executive when exercising power are several fold:
they are required to exercise the powers personally and in accordance
with the formal requirements set out by the Constitution; the exercise of
the powers must not infringe any provision of the Bill of Rights; the
exercise of the powers is also clearly constrained by the principle of
legality which requires a rational exercise of power. As is implicit in the
Constitution, this means the members of the executive must act in good
faith and must not misconstrue their powers.
The President has the power to appoint and also to dismiss
members of his or her Cabinet. The President also assigns tasks to
members of his or her Cabinet. This power to compose the Cabinet and
to determine its functions is constrained by larger political
considerations. A dominant political party with a tradition of collective
leadership will require the President to consult with the party
leadership before making these decisions.
Members of the Cabinet are individually and collectively
accountable to Parliament. While robust debate may occur within the
Cabinet, once a decision is taken by Cabinet all members of the Cabinet
are expected to support the decision regardless of whether they agree
with the decision. Members of the Cabinet are both accountable to the
President, who appoints and dismisses them, and to the NA which
elects the President and can, in exceptional circumstances, also adopt a
motion of no confidence in individual members of the Cabinet to force
the President to reconstitute his or her Cabinet.

1 A coalition is formed if no party obtains at least 50% of the seats in the NA. Two or more
parties who together have more than 50% of the seats in the NA will then agree to work
together and form a government, based on agreed policies and principles.
2 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999)
para 138.
3 S 197(1) of the Constitution states: ‘Within public administration there is a public service
for the Republic …’ See also s 1 of the Public Service Act 103 of 1994 read with s 8, and
Currie, I and De Waal, J (eds) (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 229.
4 S 86(1) of the Constitution.
5 S 86(3) of the Constitution.
6 S 87 of the Constitution. This means that the South African President will be elected to the
NA, will take his or her seat, but will only remain a member of the NA for a few hours until
such time as he or she is elected President, after which he or she ceases to be a member of
the NA.
7 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v
Speaker of the National Assembly (EFF I) [2016] ZAAC 11; 2016 (3) SA 580 (CC); 2016 (5)
BCLR 618 (CC) para 20.
8 See s 88(2) of the Constitution.
9 For example, in terms of Rule 12.3 of the Constitution of the African National Congress
(ANC), its national conference – held every five years – elects the President, the Deputy
President, National Chairperson, the Secretary-General, Deputy Secretary General, the
Treasurer General and the remaining 80 additional members of the National Executive
Committee (NEC) of the party. The NEC, as a whole, must consist of not less than 50%
women. See African National Congress Constitution as amended and adopted at the 54th
National Conference, Nasrec, Johannesburg, 2017, available at
https://www.anc1912.org.za/constitution-anc.
10 S 89(1) of the Constitution.
11 Economic Freedom Fighters and Others v Speaker of the National Assembly and Another
(EFF II) (CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29
December 2017) para 175 where the Court held:
Consistent with the pivotal role played by the President in our democratic order and
bearing in mind the obligation imposed singularly on him or her to uphold, defend
and respect the Constitution as our supreme law, the drafters of the Constitution
sought to limit the power given to the Assembly to impeach and remove a President
from office. Although the Constitution does not use the word “impeach”, it is apparent
that what section 89(1) authorises constitutes impeachment in other jurisdictions.
12 EFF II para 205.
13 EFF III para 179.
14 EFF III para 96.
15 [2017] ZACC 21; 2017 (5) SA 300 (CC); 2017 (8) BCLR 1061 (CC) para 79.
16 S 89(2) of the Constitution.
17 S 89(2); EFF II at para 136.
18 The South African system is not a pure system of parliamentary government as the
President is both Head of State and head of the executive, the President ceases to be a
member of the NA once elected and, as we shall see, two members of Cabinet can be
appointed from outside the NA. Nevertheless, as far as the constitutional structure is
concerned, the South African system is essentially parliamentary in nature and not
presidential in nature, as the President is not directly elected by the people. See also
Murray, C and Stacey, R ‘The President and the national executive’ in Woolman, S and
Bishop, M (2013) Constitutional Law of South Africa 2nd ed rev service 5 18.3.
19 UDM paras 32–4.
20 (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August
2013) paras 41 and 45.
21 S 47(3)(c) of the Constitution.
22 UDM para 76.
23 UDM para 85.
24 UDM para 85.
25 UDM para 31.
26 Tlouamma and Others v Mbethe, Speaker of the National Assembly of the Parliament of the
Republic of South Africa and Another (A 3236/15) [2015] ZAWCHC 140; 2016 (1) SA 534
(WCC); [2016] 1 All SA 235 (WCC); 2016 (2) BCLR 242 (WCC) (7 October 2015).
27 S 57(1) of the Constitution.
28 Chikane, F (2012) Eight Days in September: The Removal of Thabo Mbeki 17–8.
29 See the minority judgment of Jafta J in Mazibuko para 90.
30 S 90(1) of the Constitution.
31 S 90(2) of the Constitution.
32 S 90(3) of the Constitution.
33 S 90(4) of the Constitution.
34 These powers are a partial codification of the President’s common law prerogatives. This
partial codification is provided for in s 84(2) of the Constitution and include, among others,
the President’s power to confer honours. According to Mansingh v General Council of the
Bar and Others (Mansingh) (CCT 43/13) [2013] ZACC 40; 2014 (2) SA 26 (CC); 2014 (1)
BCLR 85 (CC) (28 November 2013), the President’s power to confer honours in terms of s
84(2)(k) of the Constitution is wide enough to include the authority to confer Senior
Council status or silk on advocates.
35 See s 83(a) of the Constitution.
36 Mansingh para 25.
37 President of the Republic of South Africa and Another v Hugo (Hugo) (CCT11/96) [1997]
ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 14.
38 See s 85(2) of the Constitution, which states, ‘The President exercises the executive
authority, together with the other members of the Cabinet, … ’, read with s 101(2): ‘A written
decision by the President must be countersigned by another Cabinet member if that
decision concerns a function assigned to that other Cabinet member’. See also President of
the Republic of South Africa and Others v South African Rugby Football Union and Others
 (SARFU III) (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September
1999) para 38; and Hugo para 14.
39 See generally Baxter, L (1984) Administrative Law 434–4. See also Hofmeyr v Minister of
Justice and Another 1992 (3) SA 108 (C) at 117 F–G.
40 SARFU III para 40: ‘There can be no doubt that when the Constitution vests the power to
appoint commissions of inquiry in the President, the President may not delegate that
authority to a third party. The President himself must exercise the power. Any delegation to
a third party would be invalid.’
41 SARFU III para 40: ‘cases where a functionary vested with a power does not of his or her
own accord decide to exercise the power, but does so on the instructions of another’.
42 SARFU III para 40: ‘“passing the buck” contemplates a situation in which the functionary
may refer the decision to someone else’.
43 SARFU III para 41.
44 SARFU III para 65.
45 Currie and De Waal (2001) 237.
46 For a discussion on prerogative powers and how these were replaced by enumerated
powers by South Africa’s democratic Constitution, see Hugo paras 5–10.
47 In President of the Republic of South Africa v Office of the Public Protector and Others
(91139/2016) [2017] ZAGPPHC 747; 2018 (2) SA 100 (GP); [2018] 1 All SA 800 (GP); 2018 (5)
BCLR 609 (GP) (13 December 2017) para 71, the court held that ‘even though the
Constitution vests in the President the power to appoint a commission of inquiry, this
power is not an untrammelled one; it must be exercised within the constraints that the
Constitution imposes. The President’s power to appoint a commission of inquiry will
necessarily be curtailed where his ability to conduct himself without constraint brings him
into conflict with his obligations under the Constitution.’
48 According to the decision of the Constitutional Court in Mansingh, the President’s power to
confer honours is wide enough to include his/her authority to confer Senior Council status
or silk on advocates.
49 2018 (2) SA 100 (GP); [2018] 1 All SA 800 (GP); 2018 (5) BCLR 609 (GP) para 62.
50 President of the Republic of South Africa v The Public Protector and Others paras 79–86.
51 (62470/2015) [2017] ZAGPPHC 743; [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) (8
December 2017).
52 Corruption Watch I para 107.
53 Corruption Watch I paras 112 and 113.
54 S 91(2) of the Constitution.
55 S 91(4) of the Constitution.
56 For instance, in terms of s 231(1) of the Constitution, the negotiation and signing of
international agreements is the responsibility of the national executive, which the President
as head of the executive must undertake together other members of the Cabinet. However,
it is important to note that save for agreements of a technical, administrative or executive
nature and agreements, which do not require ratification, or accession (which merely need
to be tabled in Parliament within a reasonable time), all other international agreements
entered into or withdrawn by the executive on behalf of South Africa requires the approval
of Parliament in the form of a resolution to approve and the passing of relevant legislation.
This limitation of executive power was confirmed by the High Court in Democratic Alliance
v Minister of International Relations and Co-operation and Others (Council for the
 Advancement of the South African Constitution as Intervening Party) (83145/2016); [2017]
ZAGPPHC 53; [2017] 2 All SA 123 (GP); 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017
(1) SACR 623 (GP) (22 February 2017) where it was held that the executive’s power to
withdraw from an international agreement must be approved by resolution of Parliament
and after the repeal of the relevant legislation.
57 S 179(1)(a) of the Constitution. In Corruption Watch NPC and Others v President of the
Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others
(Corruption Watch II) (CCT 333/17; CCT 13/18); [2018] ZACC 23; 2018 (10) BCLR 1179
(CC); 2018 (2) SACR 442 (CC) (13 August 2018) paras 32–5, the Constitutional Court
declared invalid the President’s appointment of the National Director of Public
Prosecutions based on the invalidity of the manner in which the former National Director
of Public Prosecutions vacated his office. The Court held that ‘the appointment of Advocate
Abrahams as NDPP was an act consequential upon the constitutionally invalid vacation of
office by Mr Nxasana [former NDPP]’. According to the Court, ‘now that the manner in
which Mr Nxasana vacated office has been declared constitutionally invalid, it follows that
the appointment of Advocate Abrahams is [consequentially] constitutionally invalid’.
58 S 202(1) of the Constitution.
59 S 207(1) of the Constitution.
60 S 209(2) of the Constitution.
61 For instance, the appointment of the members of the South African Broadcasting
Corporations (SABC) Board in terms of s 13(1) of the Broadcasting Act 4 of 1999, as
amended. In S.O.S. Support Public Broadcasting Coalition and Others v South African
Broadcasting Corporation SOC Limited and Others (81056/14); [2017] ZAGPJHC 289 (17
October 2017), the High Court held that the President’s power to appoint the non-executive
members of the SABC ‘is a purely formal power as the National Assembly is the appointing
authority’ and the President ‘has no discretion’ in the matter. This is sensible as the
National Assembly is made up of multiple political parties representing the entire South
Africa, while the executive usually represents only one party and its interests. The process
followed by the National Assembly to make appointments is also far more transparent than
the process that the President would follow at para 76. The court further held that the SABC
‘must be free from executive control and influence’ (at para 47), because the SABC
performs a watchdog function ‘by investigating and reporting on the maladministration,
abuses of power and corruption as these are matters of public interest’ at para 46.
62 Report of the Presidential Review Commission on the Reform and Transformation of the
Public Service in South Africa, Pretoria (1998) para 1.3, available at
https://www.gov.za/documents/report-presidential-review-commission-reform-and-
transformation-public-service-south. See also Klug, H (2010) The Constitution of South
Africa: A Contextual Analysis 201.
63 Report of the Presidential Review Commission (1998) para 7.2.1.4.
64 Chothia, F and Jacobs, S ‘Remaking the Presidency: The tension between co-ordination
and centralisation’ in Jacobs, S and Calland, R (eds) (2002) Thabo Mbeki’s World: The
Politics and Ideology of the South African President 150.
65 Klug (2010) 203.
66 See generally Calland, R (2013) The Zuma Years: South Africa’s Changing Face of Power for a
discussion of the way in which the Office of the Presidency has operated during President
Jacob Zuma’s tenure.
67 Deputy Chief Justice Dikgang Moseneke ‘Reflections on South Africa’s Constitutional
Democracy – Transition and Transformation’, keynote speech delivered on 12 November
2014 at the Mistra-Tmali-UNISA Conference, accessed on 30 January 2020 at
https://constitutionallyspeaking.co.za/dcj-moseneke-reflections-on-south-african-
constitutional-democracy-transition-and-transformation/ [footnotes omitted]
68 S 174(6) of the Constitution which states: ‘The President must appoint the judges of all
other courts on the advice of the Judicial Service Commission.’
69 S 193(4) of the Constitution.
70 Act 32 of 1998 (NPA Act).
71 Corruption Watch II para 31.
72 Corruption Watch II para 35.
73 At para 42. In this regard, s 12(4) of the NPA Act was declared unconstitutional.
74 Corruption Watch at para 48.
75 S 174(3) of the Constitution.
76 S 174(3) of the Constitution.
77 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) paras 14–26.
78 S 101(1) of the Constitution.
79 S 101(2) of the Constitution.
80 Currie and De Waal (2001) 241.
81 Hugo para 10.
82 SARFU III para 148. Even with regard to the interim Constitution, which did not contain an
explicit provision about the rule of law, the Constitutional Court found in Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October 1998)
paras 56–9 that the doctrine of legality, an incidence of the rule of law, was an implied
provision of the interim Constitution. The Court stated at para 58:
‘It seems central to the conception of our constitutional order that the legislature and
executive in every sphere are constrained by the principle that they may exercise no power
and perform no function beyond that conferred upon them by law. At least in this sense,
then, the principle of legality is implied within the terms of the interim Constitution.’
83 Hugo para 10.
84 Hugo para 15. The Court referred to judgments by the Bavarian and Hessen Constitutional
Courts to support this claim. See BayVerfGHE NF 18 140 (1965) at 147; HessStGH NJW
1974, 791 at 793.
85 Hugo para 28.
86 Hugo para 29.
87 S 91(2) of the Constitution.
88 (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007).
89 Masetlha para 77.
90 Masetlha para 77.
91 (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998) para 41.
92 Masetlha para 77.
93 The actions of the President may also be found to infringe a constitutional right given effect
to in legislation. In President of the Republic of South Africa and Others v M & G Media Ltd
 (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November
2011), for example, the Constitutional Court had to decide whether the refusal by the
President to hand over a Report commissioned by the President to the Mail & Guardian
newspaper contravened the provisions of the Promotion of Access to Information Act 2 of
2000 which gives effect to s 32 of the Constitution.
94 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
95 SARFU III paras 146–8.
96 See Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09)
[2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC) (23
February 2010).
97 Masetlha para 68.
98 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 (CCT 53/11, CCT
54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) (29 July
2011) para 54. See also Executive Council of the Province of the Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another, Executive Council of
KwaZulu-Natal v President of the Republic of South Africa and Others
(CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360 (15 October
1999) para 54.
99 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) para
62.
100 Executive Council of the Western Cape Legislature para 62.
101 Executive Council of the Western Cape Legislature para 62. In a separate judgment in this
case, Mahommed J confirmed this principle, but for slightly different – more substantive –
reasons. Mahommed said at para 136 that these issues cannot be determined in the
abstract but depend ‘inter-alia on the constitutional instrument in question, the powers of
the legislature in terms of that instrument, the nature and ambit of the purported
delegation, the subject-matter to which it relates, the degree of delegation, the control and
supervision retained or exercisable by the delegator over the delegatee, the circumstances
prevailing at the time when the delegation is made and when it is expected to be exercised,
the identity of the delegatee and practical necessities generally’.
102 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR
1017 (CC) (29 July 2011).
103 Act 47 of 2001.
104 Justice Alliance paras 65–8.
105 See Hugo para 29. See also SARFU III para 148; Fedsure Life paras 56–8; Masetlha para 23;
Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09)
[2009] ZACC 25; 2010 (1) SACR 325 (CC); 2010 (2) BCLR 140 (CC); 2010 (4) SA 82 (CC) (30
September 2009) para 30; Albutt para 49; Democratic Alliance para 31.
106 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1; 2000 (2) SA
674; 2000 (3) BCLR 241 (25 February 2000) para 90; Kruger v President of the Republic of
South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR
268 (CC) (2 October 2008) para 98.
107 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
(CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March
2004) para 44.
108 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR
391 (CC) (23 February 2010) para 51. See also Democratic Alliance para 30.
109 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October
2012) para 32. See also President of the Republic of South Africa and Others v South African
Dental Association and Another (CCT 201/14) [2015] ZACC 2; 2015 (4) BCLR 388 (CC) (27
January 2015).
110 Democratic Alliance para 90. See also Prinsloo v Van der Linde and Another (CCT4/96)
[1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997) para 25; Pharmaceutical
Manufacturers para 90.
111 See Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04)
[2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 49;
Pharmaceutical Manufacturers para 20; SARFU III para 38; Fedsure Life para 32.
112 Albutt para 49.
113 Albutt para 71.
114 Democratic Alliance para 89.
115 Du Plessis, M and Scott, S (2013) The variable standard of rationality review: Suggestions
for improved legality jurisprudence South African Law Journal 130(3):597–620 at 597
116 Du Plessis and Scott (2013) 598.
117 Du Plessis and Scott (2013) 608–9 (footnotes omitted).
118 Du Plessis and Scott (2013) 617.
119 Du Plessis and Scott (2013) 618.
120 (CCT22/01) [2001] ZACC 3; 2001 (11) BCLR 1168; 2002 (1) SA 33 (CC) (8 October 2001).
121 Liebenberg para 15. See also Von Abo v President of the Republic of South Africa (CCT 67/08)
[2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) (5 June 2009) para 45.
122 (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) (5 June 2009)
para 45.
123 SARFU III para 240.
124 SARFU III para 242.
125 SARFU III para 243.
126 S 91(1) of the Constitution.
127 S 91(2) of the Constitution.
128 S 91(3)(a) of the Constitution.
129 S 91(3)(b) and (c) of the Constitution.
130 Currie and De Waal (2001) 254.
131 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 108.
132 In Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 109.
133 S 91(2) of the Constitution.
134 S 102 of the Constitution.
135 Masetlha para 228, where Sachs J stated:
 This suggests a qualitative distinction based on the fact that the three are not purely
political appointees placed in positions of governmental leadership. Rather, they
are important public officials with one foot in government and one in the public
administration. Members of Cabinet know that they are hired and can be fired at
the will of the President; and if fired, they can mobilise politically, go to the press,
even demonstrate outside Parliament, and hope to muster support for themselves
at the next congress of their party.
136 Masetlha para 228.
137 See also Currie and De Waal (2001) 254 and Mphele v Government of the Republic of South
Africa 1996 (7) BCLR 921 (CK) 954E.
138 See Devenish, GE (1998) A Commentary on the South African Constitution 158. When
President Thabo Mbeki served as Deputy President in the Cabinet of President Nelson
Mandela, he was widely regarded as playing the role of Prime Minister. See generally
Gumede, WM (2008) Thabo Mbeki and the Battle for the Soul of the ANC 33–62.
139 S 90(1).
140 See Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and
Others; Council for the Advancement of the South African Constitution v President of the
Republic of South Africa and Others (62470/2015) [2017] ZAGPPHC 743; [2018] 1 All SA 471
(GP); 2018 (1) SACR 317 (GP) (8 December 2017)
141 S 91(2) of the Constitution.
142 S 92(1) and 92(2) of the Constitution.
143 This is the necessary implication of s 92(2) which states that members of the Cabinet are
collectively responsible to Parliament.
144 See Magidimisi v Premier of the Eastern Cape and Others (2180/04, ECJ031/06) [2006]
ZAECHC 20 (25 April 2006) paras 20–1:
The first respondent is the Premier of the province. The Constitution vests her with the
ultimate executive authority of the province. The Premier and the Members of the
Executive Council are responsible for the implementation of legislation in the province and
for the performance of all other constitutional and statutory executive functions of the
province. The Premier has taken an oath of office to ‘obey, respect and uphold the
Constitution and all other law of the Republic’. This includes the duties to uphold the rule of
law … As the ultimate executive authority in the province the Premier thus bears the
ultimate responsibility to ensure that the provincial government honours and obeys all
judgments of the courts against it. The second respondent, the Member of the Executive
Council for Finance, bears the same general constitutional duties as those of the Premier,
except that he does not bear the ultimate executive authority of the Premier. In addition,
however, he bears responsibility for decisions of the provincial treasury. This would include
decisions relating to the payment of judgments against the province for the payment of
money.
145 S 92(2) of the Constitution.
146 S 96(3) of the Constitution.
147 SARFU II para 41. See also Murray and Stacey (2013) 18.32.
148 S 85(2) of the Constitution states: ‘The President exercises the executive authority, together
with the other members of the Cabinet …’
149 See Murray and Stacey (2013) 18.32. They point out that this aspect requires confidentiality
from members of the Cabinet and Cabinet members are usually not allowed to divulge
 information about debates within Cabinet. Although this rule is not encoded in the
Constitution, it has been respected since the advent of the interim Constitution in 1994.
The need for confidentiality has also been accepted by the Constitutional Court in SARFU
III para 243.
150 See Rautenbach, IM and Malherbe, EFJ (2009) Constitutional Law 193.
151 Rautenbach and Malherbe (2009) 193.
152 See also Mafunisa, MJ (2008) The role of codes of conduct in promoting ethical conduct in
the South African public service South African Journal of Labour Relations 32(1):81–92.
153 See also the Code of Conduct for Assembly and Permanent Council Members, available at
https://www.parliament.gov.za/code-conduct-for-na-ncop-members.
154 S 96(2) of the Constitution.
155 Act 82 of 1998.
156 Act 23 of 1994.
157 See s 3 of the Executive Members’ Ethics Act.
158 S 3 of the Executive Members’ Ethics Act.
159 S 91(5) of the Constitution.
Separation of powers and judicial
authority

6.1 The historic legacy of parliamentary sovereignty and apartheid on the judiciary

6.2 The appropriate roll of courts in a constitutional democracy

6.3 The judiciary in the new constitutional dispensation

6.3.1 The structure of the judiciary in the 1996 Constitution
6.3.2 Constitutional jurisdiction of the various courts
6.3.2.1 Constitutional Court
6.3.2.2 Supreme Court of Appeal
6.3.2.3 High Courts
6.3.2.4 Magistrates’ courts

6.4 The independence of the superior courts

6.4.1 Introduction
6.4.2 Appointment of judges
6.4.3 The judicial oath of office
6.4.4 Security of tenure
6.4.5 Financial security
6.4.6 Limitation of civil liability
6.4.7 Office of the Chief Justice

6.5 Independence of the lower courts and traditional courts

6.5.1 The lower courts under the interim Constitution
 6.5.2 Independence of the lower courts under the 1996 Constitution
6.5.3 Independence of traditional courts

6.6 The National Prosecuting Authority

Summary

6.1 The historic legacy of parliamentary sovereignty and

apartheid on the judiciary

Figure 6.1 Separation of powers and judicial authority

The South African judiciary was not left untainted by its role during the
apartheid era.1 There are many reasons why the judiciary cannot be said
to have survived the apartheid era untainted. Before 1994, the doctrine
of parliamentary supremacy was one of the cornerstones of South
African constitutional law. This doctrine obviously limited the
judiciary’s capacity to enforce individual rights and freedoms. As
Mtshaulana points out, because ‘the rule of law was equated to rule by
law, all arbitrary exercise of power, … exercised in terms of a law
enacted by correct constitutional procedures prescribed by Parliament
was considered lawful and in accordance with the rule of law’.2 Although
some judges attempted to interpret and apply the law in such a way as
to limit the harsh effects of apartheid laws, others diligently enforced
apartheid laws. This meant that the apartheid judiciary lacked
legitimacy in the eyes of the majority of people in South Africa.3
Moreover, after anti-apartheid lawyers had won several important
victories in the courts in the 1980s during the States of Emergency,4 the
Appellate Division overturned many of these judgments confirming
that the apartheid state had virtually unlimited power under the
emergency provisions.5 The outcome in these cases further confirmed
the lack of impartiality and independence of the highest court and
eroded whatever legitimacy the judiciary may still have enjoyed.
However, there is some disagreement about whether the timid
approach of many judges during the apartheid years entirely destroyed
the judiciary’s credibility. On the one hand, Madala argues that ‘the
[apartheid] system created a society in which the majority came to
regard the courts, judges, and the administration of justice with
suspicion and anger’.6 On the other hand, Ellmann argues that black
South Africans surprisingly retained a significant degree of confidence
in the legal system and the courts in particular.7 Ellmann argues that
this confidence lent a measure of legitimacy to the legal system. This,
coupled with the history of anti-apartheid lawyering, ‘might have
encouraged South Africans to see virtue in the ideals of fearless
advocacy, independent judging, and the rule of law’, offering the
promise that these same ideals would be honoured in the post-
apartheid South Africa.8
It is nevertheless clear that the institutionalisation of apartheid
through law and legal regulation transformed the legal system and
entrenched the political dominance of the minority over the majority
through the operation of law enforced by the judiciary.9 To this end, the
judiciary ‘was unable to resolve the impasse [of its subjugation] because
it did not have the option to review and reverse unjust laws; rather, the
courts and all the other institutions had to implement and administer
such laws’.10 Because the judiciary operated under the system of
parliamentary supremacy, it meant that ‘by upholding blatantly
discriminatory and unjust legislation, the judiciary functioned as part of
the apartheid legal order and contributed to legitimising and sustaining
it’.11 Judges were regarded as mere mechanical interpreters of the law.
Their function was seen by many – including by most judges and legal
practitioners – merely to ascertain the intention of the apartheid
legislature through the text of the legislation and then to give effect to
that intention, no matter how nefarious the intention might have
been.12 Most judges believed that they could employ only limited
interpretational aids in the event of ambiguity or inconsistency, or if
adherence to the ordinary meaning of the text would result in
absurdity.13 They adhered to the notion that any modifications,
corrections or additions to the text should be left to the legislature as the
government branch responsible for making law. Value judgments of the
content of a statute were irrelevant when interpreting and applying the
legislation passed by the apartheid Parliament.14 Corder draws the
conclusion that:
The overall picture [of judicial attitudes] which emerges is one of a group of
men who saw their dominant roles as the protectors of a stability … The judges
expressed it in terms of a positivistic acceptance of legislative sovereignty,
despite a patently racist political structure, and a desire to preserve the existing
order of legal relations, notwithstanding its basis in manifest social inequalities
…15

These attitudes were amplified by the fact that the power of judges was
constrained under the system of parliamentary supremacy.16
However, despite problems with the formalistic approach to the
interpretation and application of unjust laws, there is widespread
agreement that before the advent of democracy, the judiciary did
exhibit many of the formal attributes of independence. Courtrooms
were open to the general public and judges enjoyed security of tenure
and of salary even though politics played a role in the promotion of
judges to the Appellate Division. Judges served until the age of 70 and
could be removed only by the State President at the request of the
Houses of Parliament on the grounds of misbehaviour or incapacity.
Moreover, the salaries of judges were legally guaranteed and could not
be reduced during their term of office.17
Notwithstanding these features, the judiciary was not entirely free
from indirect political influence through the process of appointment.18
Before 1994, the State President appointed judges in terms of section 10
of the Supreme Court Act.19 However, in practice, it was the Minister of
Justice who made the appointments based on the recommendations of
the Chief Justice or Judge President of the relevant division of the High
Court.20 The State President then merely formalised these
appointments. The process of identifying potential candidates and their
selection was also ‘shrouded in secrecy’ and ‘political factors played a
role in determining who secured appointment and who was
promoted’.21
Furthermore, in the pre-democratic era, the judiciary was
composed almost entirely of white males, drawn from the elitist and
privileged ranks of the ruling minority. Judicial appointees were drawn
primarily from the ranks of senior counsel practising as advocates at the
various bars in South Africa. Before 1990, only one white female had
been appointed as a judge in South Africa while no black judges had
been appointed.22 The selection process was a confidential one which
meant that candidates could be hand-picked based on whether their
beliefs were sympathetic to the government of the day.23 The first black
male judge, Ismael Mahomed, was appointed in 1991.24 When South
Africa became a democracy in 1994, out of 166 judges, 161 were white
men, two were white women, three were black men and there were no
black women judges at all.25

Table 6.1 Composition of the judiciary in 1994 26

Before 1994, the Appellate Division of the Supreme Court (since

renamed the Supreme Court of Appeal), with its seat in Bloemfontein,
was the highest court in South Africa for all matters. The Appellate
Division considered appeals from the various Provincial Divisions of
the Supreme Court (since renamed High Courts), which had their seats
in the main urban centres across South Africa. The Supreme Court
(including the Appellate Division), together with a small number of
other specialised courts created by legislation,27 made up the superior
courts.28 The lower courts consisted primarily of the magistrates’ courts
which were divided into regional and district courts.
In 1927, a separate system of courts was also created for people
classified as ‘Africans’ to interpret and enforce customary law.29 This
traditional judicial system, which was designed to deal with customary
law through the institution of traditional leadership, was also subject to
the control of first the Union government and then the apartheid
government. The institution was controlled by native commissioners
who included traditional leaders. They became state functionaries,
exercising authority and constituting courts, no longer under the
mandate of the people, but that of the government of the day.30 Even
though the traditional system of justice had elements of a democratic
culture because of its consensual decision-making, its values were
fundamentally eroded by its transformation by colonial and apartheid
rule.

How can the formation of new judicial

structures that would truly deal responsibly
with living customary law be achieved?
Vani argues that the colonial encounter fundamentally
changed the way in which customary law was applied
and developed in apartheid South Africa. Apart from
the fact that Roman-Dutch and English law were
preferred over customary law, he argues further, the
rules of evidence imported from Britain and imposed
by statute and convention extinguished many
customary law principles and rules:
Strict criteria were imposed to prove the legal validity of customs.
It had to be proved that customs had existed from time
immemorial, and that they were invariable, continuous, certain,
notorious, reasonable, peaceable and obligatory. Customs could
not be immoral or opposed to an express enactment or to public
policy. The rule of stare decisis ended the flexibility of customary
law by preventing innovation to meet the changes in community
opinion and sentiments. Modern legal machinery forced
customary law to fall in line with national standards.31

Customary law was ‘preserved, upgraded and frozen

out of relevance to the flux of the [traditional
community’s] life’.32 This was evidenced by cases such
Bhe and Others v Khayelitsha Magistrate and Others
(Commission for Gender Equality as Amicus Curiae)33
and Shilubana and Others v Nwamitwa (Commission
for Gender Equality, National Movement of Rural
Women and The Congress of Traditional Leaders of
South Africa as Amici Curiae),34 which focused on the
development of customary law through the lens of
either the common law or the Constitution. Customary
law thus ‘became atrophied as a result of the rupture
of its relationship with other sources of law’.35
Even the manner in which customary law was
recorded changed. Before the colonial encounter, it
‘was a body of orally transmitted precepts and
precedents’.36 Where disputes arose, ‘solutions were
sought to take the total situation of the parties into
consideration’.37 These basic features were eroded by
the Union and apartheid administration and customary
law:
became a fixed body of law, indistinguishable from statute and
case law. Opinions and evidence given by villagers on custom in
courts were isolated from their contexts and utilized to describe a
single transaction or an offence which gave rise to a sense of
individual right not dependent on community opinion, enforced by
courts even in opposition to community opinion.38
 Moseneke J (as he then was) expressed a similar
sentiment in Daniels v Campbell and Others:
True to their worldview, [which ‘originates from the deep-rooted
prejudice’] judges of the past displayed remarkable ethnocentric
bias and arrogance at the expense of those they perceived
different. They exalted their own and demeaned and excluded
everything else.39

Given these changes and the transformation during

Union and apartheid rule of customary law and the
institutions called on to develop and enforce it, it can
be argued that the creation of new traditional courts
that rely on the discredited structures of traditional
leadership runs the risk of entrenching Union and
apartheid forms of judicial governance instead of truly
respecting age-old customary legal structures. But
should the South African judiciary be restructured to
enable the formation of new judicial structures that
would truly deal responsibly with living customary law?
If so, how could this be achieved? There are no easy
answers to such questions as the debate which started
in 2012 with proposals for the creation of new
traditional courts illustrates.40

6.2 The appropriate roll of courts in a constitutional

democracy
In a constitutional democracy the judiciary is often referred to as the
‘bastion of the legal order’.41 This is because in a constitutional
democracy with a supreme and enforceable constitution, an
independent judiciary is free to interpret and apply the law impartially
and without consideration of the wishes of politicians, powerful
business interests or civil society groups. According to this theory, the
system of separation of powers and checks and balances can only
operate optimally if an independent and impartial judiciary is
empowered to enforce the provisions of the Constitution. In such a
system the judiciary acts as referee of the democratic process while also
checking whether the two political branches of government, the
legislature and the executive, act within the boundaries set out by the
constitution and by legislation. The more dominant a political party is
in government and the larger its majority in Parliament, the more likely
it is that other role players will revert to the independent and impartial
courts to check the exercise of powers of the legislature and executive,
and to limit the potential abuse of power and breaches of the
constitution, which some commentators associate with a prolonged
period of political dominance by one political party.
To the extent that South Africa can still be viewed as a one-party
dominant democracy,42 it can be argued that these tendencies continue
to manifest themselves in the South African context. This places the
judiciary in a difficult position. On the one hand, it is empowered by the
Constitution to enforce its provisions and to declare invalid acts and
omissions of the legislature and the executive that fail to comply with
the obligations imposed by the Constitution.43 The judiciary has a duty
to enforce the provisions of the Constitution and the law, and to check
the exercise of power by the legislature, executive and other powerful
role players. From a purely institutional and practical political
perspective, the judiciary can appear to be relatively weak in relation to
the other two branches of government. It may appear to lack the
political clout and democratic legitimacy associated with the elected
branches of government and is dependent on the other two branches of
government for its funding and for ensuring that its decisions are
adhered to. The truth is, as the Constitutional Court has pointed out,
that the judiciary cannot function properly without the support and
trust of the public.44 As former Chief Justice Ismail Mahomed explained:
Unlike Parliament and the executive, however, judicial officers do not have the
powers of the purse, the army, and the police to execute their will. All the
courts put together in the country do not have a single soldier. They would be
impotent to protect the Constitution or to execute the law if the agencies of the
State which control the mighty physical and financial resources of the State,
refused to command those resources to enforce the orders of the courts. The
courts could then be reduced to paper tigers with a ferocious capacity to roar
and to snarl but no teeth to bite and no sanctions to execute their judgments
 which could then simply be reduced to pieces of sterile scholarship, or futile
exhibitions of toothless wisdom. The ultimate power of the courts must
therefore rest on the esteem in which the judiciary is held within the psyche
and soul of the nation and in the confidence it enjoys within the hearts and
minds of potential litigants in search of justice. That esteem and that respect
must substantially depend on the independence and integrity of judicial
officers. No public figure anywhere, however otherwise popular, could afford to
be seen to defy the order of a court which enjoys, within the nation, a
perception of independence and integrity. His or her own future would then be
in mortal jeopardy.45

The way in which this tension can best be dealt with is by recognising
that an independent and impartial judiciary is most effective when it
respects the separation of powers doctrine and does not unnecessarily
intrude on the domain of the legislature and the executive. However,
this does not mean the courts must be timid in protecting and enforcing
the Constitution. In International Trade Administration Commission v
SCAW South Africa (Pty) Ltd the Constitutional Court thus said:
In our constitutional democracy, all public power is subject to constitutional
control. Each arm of the state must act within the boundaries set. However, in
the end, courts must determine whether unauthorised trespassing by one arm
of the state into the terrain of another has occurred. In that narrow sense, the
courts are the ultimate guardians of the Constitution. They do not only have the
right to intervene in order to prevent the violation of the Constitution, they also
have the duty to do so. It is in the performance of this role that courts are more
likely to confront the question of whether to venture into the domain of other
branches of government and the extent of such intervention. It is a necessary
component of the doctrine of 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. But even in these
circumstances, courts must observe the limits of their own power.46

Courts must therefore act in a restrained but principled manner and

must interpret and enforce the Constitution in a fearless way. This will
help to ensure that the political process remains fair, democratic space
remains open and political contestation remains robust while also
playing a decisive role in protecting the vulnerable and marginalised in
society.47 When considering the role and functions of the judiciary, it is
important to take note of this broader context within which the
judiciary operates. This section of the chapter therefore focuses on the
powers, functioning and composition of the judiciary in the light of the
pressing need for the judiciary to retain the esteem and respect of the
wider society while also scrupulously enforcing the Constitution and
the law in an impartial and independent manner. This will be done
against the background of the separation of powers doctrine.

‘Judicial overreach’
When should the Constitutional Court (and other
courts) defer to the other branches of government?
What is a court to do when its interpretation of the
Constitution, followed to its logical conclusion, will
require it to intrude into the heartland of the powers
constitutionally earmarked for exercise by the
legislature or the executive? In Economic Freedom
Fighters and Others v Speaker of the National
Assembly and Another48 the Constitutional Court was
confronted with such questions when it was asked to
consider whether the existing mechanisms to impeach
the President in terms of section 89 of the Constitution
(provided for in the rules of the National Assembly)
was constitutionally compliant or not. As the power to
impeach the President is reserved for the
democratically elected National Assembly, the
essential question in the case was whether the courts
should intervene and order the National Assembly to
adopt a procedure for impeachment, and even order
the Assembly to begin the process that would consider
whether to impeach the President or not. The majority
of the court held that the court had a duty to uphold
the Constitution even when this required it to intervene
in the powers exercised by the legislature and ordered
the National Assembly to change its rules to comply
with the courts’ interpretation of section 89. Chief
Justice Mogoeng Mogoeng disgreed with the majority
and in his dissenting opinion bemoaned the majority
decision in the following terms:
The [majority] judgment is a textbook case of judicial overreach –
a constitutionally impermissible intrusion by the Judiciary into the
exclusive domain of Parliament. The extraordinary nature and
gravity of this assertion demands that substance be provided to
undergird it, particularly because the matter is polycentric in
nature and somewhat controversial. It is at odds with the dictates
of separation of powers and context-sensitive realities to
prescribe to the National Assembly to always hold an inquiry, and
to never rely only on readily available documented or recorded
evidential material, to determine the existence of a ground of
impeachment. It is just as insensitive to this doctrine to hold that
impeachment grounds must always be determined by the
Assembly before the debate and voting on a motion of
impeachment could take place.49

In a separate judgment concurring with the majority

justice Froneman responded to the Chief Justice as
follows:
It is part of constitutional adjudication that, as in this matter,
there may be reasonable disagreement among Judges as to the
proper interpretation and application of the Constitution. The
respective merits of opposing viewpoints should be assessed on
the basis of the substantive reasons advanced for them. There is
nothing wrong in that substantive debate being robust, but to
attach a label to the opposing view does nothing to further the
debate. For the reasons lucidly set out in the second judgment, I
do not agree with the reasoning of the Chief Justice and the
Deputy Chief Justice in their respective judgments. I do not,
however, consider the different outcome that they reach to be the
product of anything other than a serious attempt to grapple with
the important constitutional issue at hand. The fact that I do not
agree with their reasoning or the outcome that they propose does
not mean that I consider them to have abdicated their
responsibility to ensure that the National Assembly acts in
accordance with the Constitution. I consider that the outcome
reached in the second judgment is the product of equally serious,
honest and detached reasoning on the part of Jafta J and those of
my colleagues who concur in his judgment.50
 Do you agree with the minority that this is a textbook
example of judicial overreach, or do you agree that
Constitutional Court judges who sincerely grapple with
the appropriate interpretation of constitutional
provisions are merely doing what they are
constitutionally required to do and are not guilty of
judicial overreach?

6.3 The judiciary in the new constitutional dispensation

6.3.1 The structure of the judiciary in the 1996 Constitution

In fulfilling the objectives of the new constitutional order, the change in
the system of government included the restructuring of the judicial
system. The restructuring of the judicial system included changes to the
hierarchical structure of the courts. Section 166 of the Constitution thus
provides that the courts are:
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Court of South Africa, and any high court of appeal that may be
established by an Act of Parliament to hear appeals from any court of a
status similar to the High Court of South Africa;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of Parliament,
including any court of a status similar to either the High Court of South
Africa or the Magistrates’ Courts.

One of the most significant changes is that a new Constitutional Court

was created in the interim Constitution to serve as the final court in all
constitutional and related matters. The Constitutional Court is headed
by the Chief Justice who is also the head of the judiciary. The Chief
Justice exercises responsibility over the establishment and monitoring
of norms and standards for the exercise of the judicial functions of all
courts.51 The Deputy Chief Justice serves as the deputy leader of the
judiciary and must ‘exercise such powers or perform such functions of
the Chief Justice in terms of this or any other law as the Chief Justice
may assign to him or her; and, in the absence of the Chief Justice, or if
the office of Chief Justice is vacant, exercise the powers or perform the
functions of the Chief Justice, as Acting Chief Justice’.52
The Constitutional Court has pointed out that the distinctive
appointment process for the Chief Justice and Deputy Chief Justice
(discussed below) indicates the high importance of their offices. They
are required to ‘represent the judiciary and to act on its behalf in
dealings with the other arms of government’53 and they may also be
called on ‘to perform ceremonial and administrative duties’.54 As such,
the Chief Justice and the Deputy Chief Justice ‘are the most senior
judges in the judicial arm of government, and their distinctive manner
of appointment reflects the fact that they may be called upon to liaise
and interact with the Executive and Parliament on behalf of the
Judiciary’.55
Once they have been appointed, however, the Chief Justice and
Deputy Chief Justice take their place alongside nine other judges of the
Constitutional Court and have the same powers as any other judge of
the Constitutional Court in as far as decisions about individual cases
before the Court are concerned.56
The seat of the Constitutional Court is in Johannesburg, but the
Chief Justice may allow the Court to sit elsewhere in the country if it is
expedient or in the interests of justice to do so.57
The Appellate Division was renamed the Supreme Court of Appeal
(SCA). Apart from the name change, the Appellate Division is no longer
a division of the Supreme Court, but a fully-fledged constitutional entity
in its own right.58 The SCA is headed by the President of the SCA who is
assisted by a Deputy President of that Court.59 In the absence of the
President of the SCA or if the office of President of the SCA is vacant, the
Deputy President perform the functions of the President of the SCA as
Acting President of that Court.60 The seat of the SCA is in Bloemfontein,
but the President of the SCA may allow it to sit elsewhere in the country
if it is expedient or in the interests of justice to do so.61
Both the Constitutional Court and the SCA have jurisdiction across
the Republic. They do not, however, have jurisdiction over exactly the
same subject matter. While the Constitutional Court has jurisdiction
over all constitutional and (theoretically) all non-constitutional matters,
the SCA does not. This is because the SCA does not have jurisdiction
over those matters that fall into the exclusive jurisdiction of the
Constitutional Court.
The Constitution also created a number of High Courts.62 These were
created from former provincial and local divisions of the Supreme Court
and from the various superior courts of the former so-called
‘independent’ homelands. The different High Courts have now been
replaced with a single High Court of South Africa. The High Court of
South Africa, however, consists of the Divisions determined by an Act of
Parliament.63 The High Court functions as a superior court and acts both
as a court of first instance and as a court hearing appeals from the lower
courts. High Courts have geographically limited jurisdiction. Each
Division of the High Court consists of a Judge President and one or
more Deputy Judges President, each with specified headquarters within
the area under the jurisdiction of that Division and so many other
judges as may be determined in accordance with the prescribed
criteria.64 The Judge President leads his or her Division and is also
responsible for the co-ordination of the judicial functions of all
magistrates’ courts falling within the jurisdiction of that Division.65
In 2013, Parliament passed legislation to streamline the High Court
system to create separate Divisions of the High Court for each of South
Africa’s nine provinces.66 The High Courts now consist of the following
Divisions:
• Eastern Cape Division, with its main seat in Grahamstown
• Free State Division, with its main seat in Bloemfontein
• Gauteng Division, with its main seat in Pretoria
• KwaZulu-Natal Division, with its main seat in Pietermaritzburg
• Limpopo Division, with its main seat in Polokwane
• Mpumalanga Division, with its main seat in Nelspruit
• Northern Cape Division, with its main seat in Kimberley
• North West Division, with its main seat in Mahikeng
• Western Cape Division, with its main seat in Cape Town.
The magistrates’ courts remain essentially unchanged. However, they
have now become creatures of the Constitution and, to strengthen the
independence of the judiciary, magistrates no longer fall within the
ambit of the public service.67 Magistrates’ courts and all other courts are
empowered in terms of section 170 of the Constitution to decide any
matter determined by an Act of Parliament. Magistrates’ courts may not
enquire into or rule on the constitutionality of any legislation or
conduct of the President. Although these courts are essential for the
administration of justice, serving as the first port of call for most people
who encounter the legal system, we will not focus on these courts
because of their lack of constitutional jurisdiction.
Apart from the courts referred to in the Constitution, there are also
several specialist courts created by statute. These specialist courts may
be divided into superior specialist courts and inferior specialist courts.
The superior specialist courts include, but are not limited to, the
following:
• The Labour Court was established in terms of section 151 of the
Labour Relations Act68 to deal with disputes between employers and
employees.
• The Land Claims Court was established in terms of section 22 of the
Restitution of Land Rights Act69 to resolve disputes that arise from
land claims in relation to South Africa’s land reform initiative. This
initiative came about as a result of the legacy of apartheid that left
many South Africans destitute after the apartheid government
dispossessed them of their land.
• The Tax Court was established in terms of section 83(3) of the
Income Tax Act.70

The inferior specialist courts include, but are not limited to, the
following:
• The Children’s Court was established to deal with matters related to
children such as custody.71
• The Maintenance Courts were established in terms of the
Maintenance Act 72 to deal with issues around maintenance.
• The Domestic Violence Courts were established in terms of the
Domestic Violence Act.73

These specialist courts, which Berman refers to as ‘problem-solving

courts’, are an important initiative seeking to provide a significant
opportunity for using litigation as a transformative strategy in the
promotion of constitutional values and principles.74 However, apart
from the Equality Courts, these courts do not usually play a direct role
in the adjudication of constitutional issues.

6.3.2 Constitutional jurisdiction of the various courts

Jurisdiction refers to the power or competence of a court to hear and
adjudicate on, and to determine and dispose of, a legal dispute. In civil
matters, litigants must ensure that they approach the correct court with
the requisite jurisdiction to hear the matter. In criminal matters, the
National Prosecuting Authority (NPA) must ensure that a person is tried
in the appropriate court with the power to consider his or her guilt and
hand down the appropriate sentence. If we approach a court that does
not have the jurisdiction to hear a matter or if we approach a court who
has jurisdiction to hear similar matters but only on appeal, then the
court will dismiss the application before hearing the merits of the case
because it lacks jurisdiction to hear the case.
The rules of jurisdiction when constitutional issues are raised in a
case differ in important ways from the rules of jurisdiction in non-
constitutional matters. The reason for this is, in part, that in
constitutional matters litigants have access to distinct remedies not
usually available in non-constitutional matters. As jurisdictional issues
are inextricably linked to questions of what remedy is being sought,
there is a close relationship between constitutional jurisdiction and the
remedy being sought in a particular constitutional matter. For example,
constitutional cases often revolve around arguments about whether the
law or the action of someone is unconstitutional and invalid, and
whether it should be set aside. If a court does invalidate and set aside
legislation or the acts of the President or other members of the
executive, the court will be ‘interfering’ in the work of the
democratically elected branches of government. The Constitution
grants jurisdiction only to certain courts to award such remedies. There
are also special rules relating to when these remedies may be granted
and when the ruling by a court on remedies is final or not. There will
therefore always be a close relationship between the remedy that is
sought and the question of whether a court has jurisdiction in a case so
this section should be read with the section on constitutional
remedies.75
In South Africa, the question of constitutional jurisdiction is further
complicated by the fact that the interim and then the 1996 Constitutions
created a new Constitutional Court which was welded onto the existing
judicial system. In the interim Constitution, the Constitutional Court
was initially placed in an equal position with the SCA, which retained
its final jurisdiction over all non-constitutional matters but had no
jurisdiction at all over constitutional issues.76 In the 1996 Constitution
this arrangement was changed and the SCA now also enjoys
constitutional jurisdiction77 although the Constitutional Court retained
final jurisdiction over all constitutional matters.78 To complicate matters
further, the jurisdiction of the Constitutional Court was extended by the
Constitution Seventeenth Amendment Act 72 of 2013 (which came into
effect in August 2013). When considering the various jurisdictional
issues, it is therefore important to note this history and to understand
that the system now provides for two distinct jurisdictional scenarios:
first, in matters not raising any constitutional or related issue, and
second, in matters raising constitutional issues. Given the fact that it is
not always easy to determine whether a matter raises a constitutional
issue or not, this division of jurisdictional turf is not without its
problems.

6.3.2.1 Constitutional Court

Until August 2013, the Constitutional Court was a specialist court and
not a court of general jurisdiction.79 However, it is important to note that
the Constitution Seventeenth Amendment Act has now drastically
changed the jurisdiction of the Constitutional Court. The jurisdiction of
the Constitutional Court before this change must be contrasted with the
arrangement which came into effect in 2013. Previously, the
Constitutional Court was the court of final instance in relation to
constitutional matters and issues connected with a decision on a
constitutional matter.80 This included any question that was not a
constitutional matter but nevertheless had to be decided by the Court in
order to reach a decision on a constitutional matter.81 Constitutional
matters include ‘any issue involving the interpretation, protection or
enforcement of the Constitution’.82 Although the extension of the
jurisdiction of the Constitutional Court beyond constitutional issues
(which we discuss below) appears to be a dramatic change, this change
in jurisdiction may have less of an impact than we might think. This is
because it is not always easy to distinguish between a constitutional
matter and a non-constitutional matter. There are several reasons for
this:
• First, in the important case, Pharmaceutical Manufacturers
Association of South Africa and Another: In re Ex Parte President of
the Republic of South Africa and Others, the Constitutional Court
stated that:
I cannot accept this contention which treats the common law as a body of law
separate and distinct from the Constitution. There are not two systems of law,
each dealing with the same subject matter, each having similar requirements,
each operating in its own field with its own highest court. There is only one
system of law. It is shaped by the Constitution which is the supreme law, and all
law, including the common law, derives its force from the Constitution and is
subject to constitutional control.83

• Read with section 39(2) of the Constitution, which states that

‘[w]hen interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights’, this
means that any interpretation of legislation and any development of
the common law or customary law will potentially raise
constitutional issues. Legislation must be interpreted in line with
the spirit, purport and objects of the Bill of Rights if the words are
reasonably capable of such an interpretation or are not unduly
strained.84 This makes such an interpretative exercise a
 constitutional matter. This is also called reading down.85 Where ‘the
common law deviates from the spirit, purport and objects of the Bill
of Rights the courts have an obligation to develop it by removing
that deviation’.86 This means that potentially any argument about the
development of the common law or the interpretation of legislation
could raise constitutional issues in an indirect manner.87
• Second, under the 1996 Constitution, ‘[t]he exercise of all public
power must comply with the Constitution which is the supreme law,
and the doctrine of legality which is part of that law’.88 Any challenge
to the exercise of public power is therefore a constitutional matter
and is susceptible to the jurisdiction of the Constitutional Court.
Public power is usually exercised by a public body or institution
authorised by the Constitution or ordinary law to exercise that
power. It includes power exercised by the President, Ministers, state
officials and the courts.89
• Third, the Constitutional Court also has the jurisdiction to hear
disputes as to whether any law or conduct is inconsistent with the
Constitution and can declare such law or conduct unconstitutional
and invalid.
• Fourth, the Constitutional Court can determine issues relating to the
status, powers and functions of an organ of state.90
• Fifth, questions arising from the interpretation and application of
ordinary legislation that has been enacted to give effect to
constitutional rights or in compliance with the legislature’s
constitutional obligations are also constitutional matters.91 For
example, section 9(4) of the Constitution requires the legislature to
enact legislation to prohibit unfair discrimination. The legislature
consequently passed the Promotion of Equality and Prevention of
Unfair Discrimination Act 92 to give effect to this injunction. Thus,
any interpretation and application of this Act would give rise to a
constitutional issue.93

Although the scope of what constitutes a constitutional issue is

therefore potentially extraordinarily broad, this does not mean that all
factual and legal questions can be turned into constitutional issues.
However, the extension of the jurisdiction of the Constitutional Court in
2013 has now rendered this distinction less important as far as points of
law are concerned. The amended section 167(3)(a) of the Constitution
now makes clear that the Constitutional Court is the highest court of the
Republic in all matters. Previously, this section stated that the
Constitutional Court was the highest Court for all constitutional matters
only. The 2013 amendments now determine that the Constitutional
Court may decide constitutional matters and:
any other matter, if the Constitutional Court 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.94

The Constitutional Court itself has the power to make the final decision
on whether a matter is within its jurisdiction.95 These amendments
mean that the Constitutional Court is no longer confined to hearing
constitutional matters and matters that are connected with
constitutional matters. The Court can now also consider non-
constitutional matters. However, the Constitutional Court cannot hear
appeals based solely on factual disputes. In cases where an appeal is
lodged with the Constitutional Court that does not deal with a
constitutional matter, the Constitutional Court has a relatively wide
discretion to decide whether it will hear the appeal or not. In doing so, it
will have to take two factors into consideration. To meet the
requirements set in section 167(3)(a) of the Constitution, on must first
ask whether the matter raises an arguable point of law. As the
Constitutional Court cannot entertain a purely factual question the
question in a criminal case of whether evidence is sufficient to justify a
finding of guilt beyond reasonable doubt cannot in itself be a
constitutional matter.96 Moreover, a matter does not raise an arguable
point of law if the argument is ‘totally unmeritorious’, which means the:
notion that a point of law is arguable entails some degree of merit in the
argument. Although the argument need not, of necessity, be convincing at this
stage, it must have a measure of plausibility … in order to be arguable, a point
of law must have some prospects of success.97
Second, one must ask whether this point of law is one of general public
importance. This does not mean the requirement will only be met if the
interests of society as a whole are implicated. It does mean that for a
matter to be of general public importance, it ‘must transcend the
narrow interests of the litigants and implicate the interest of a
significant part of the general public’.98

As we shall see below, in certain cases the Constitutional Court has no

choice and must consider a case before it. However, where an appeal is
lodged with the Constitutional Court in a non-constitutional matter, the
Constitutional Court itself can decide whether to hear the case but only
if the two requirements set out above are met. Even if the two
requirements are met, this does not mean the Constitutional Court
must hear the appeal. It has a discretion to decide whether to hear it or
not, and exercises this discretion by asking whether it would be in the
interest of justice to hear the matter As the Constitutional Court held in
Paulsen v Slip Knot Investments:
Coming to this Court’s non-constitutional appellate jurisdiction, the question
arises: do interests of justice not come into the equation? I think they do. This is
what the words ‘which ought to be considered by that Court’ in section 167(3)
(b)(ii) of the Constitution are directed at. If – for whatever reason – it is not in
the interests of justice for this Court to entertain what is otherwise an arguable
point of law of general public importance, then that point is not one that ‘ought
to be considered by [this] Court’.99

As pointed out above, matters that turn purely on questions of fact are
not constitutional matters nor do they raise ‘an arguable point of law’.
This means such matters that raise only purely factual disputes cannot
be heard by the Constitutional Court. Similarly, the Constitutional
Court cannot hear matters involving the straightforward application of
law that do not raise constitutional questions, do not require the Court
to interpret or develop legislation, common law or customary law in
line with the spirit, purport and objects of the Bill of Rights, and do not
raise an arguable point of law.100
The distinction between factual disputes and
disputes about points of law
The Constitutional Court’s judgment in S v Boesak101
provides a helpful illustration of the distinction
between factual disputes and disputes about points of
law in the context of the pre-seventeenth amendment
regime which still required a constitutional question to
be raised for the Constitutional Court to hear the case.
Boesak was convicted on a charge of fraud and three
charges of theft in the High Court. On appeal, the SCA
set aside the conviction on one of the theft charges but
dismissed the appeal on the other charges. It
nevertheless reduced the sentence to one of three
years’ imprisonment.102
Boesak approached the Constitutional Court to
have the remaining convictions set aside, arguing that
there was not sufficient evidence to support the
findings of the SCA that his guilt had been proven
beyond reasonable doubt. The SCA, Boesak argued,
had interpreted the facts wrongly. This was a violation
of the right to be presumed innocent guaranteed by
section 35(3)(h) of the Bill of Rights.
The Constitutional Court found that, in essence,
Boesak was arguing that the High Court and the SCA
had got the facts wrong. It found that even if this were
true, this would not raise a constitutional issue. The
Court then went on to identify three broad principles
informing the identification of constitutional issues:
(a) A challenge to a decision of the SCA on the basis only that
it is wrong on the facts is not a constitutional matter.
In the context of section 167(3) of the Constitution the
question whether evidence is sufficient to justify a finding
of guilt beyond reasonable doubt cannot in itself be a
constitutional matter. Otherwise, all criminal cases would
be constitutional matters, and the distinction drawn in the
 Constitution between the jurisdiction of this Court and that
of the SCA would be illusory. There is a need for finality in
criminal matters. The structure of the Constitution suggests
clearly that finality should be achieved by the SCA unless a
constitutional matter arises. Disagreement with the SCA’s
assessment of the facts is not sufficient to constitute a
breach of the right to a fair trial. An applicant for leave to
appeal against the decision of the SCA must necessarily
have had an appeal or review as contemplated by section
35(3)(o) of the Constitution. Unless there is some separate
constitutional issue raised therefore, no constitutional right
is engaged when an appellant merely disputes the findings
of fact made by the SCA.
(b) The development of, or the failure to develop, a common-
law rule by the SCA may constitute a constitutional
matter.
This may occur if the SCA developed, or failed to develop,
the rule under circumstances inconsistent with its
obligation under section 39(2) of the Constitution or with
some other right or principle of the Constitution.
(c) The application of a legal rule by the SCA may constitute a
constitutional matter.
This may occur if the application of a rule is inconsistent
with some right or principle of the Constitution.103

The Constitutional Court’s jurisdiction can be divided into concurrent

jurisdiction and exclusive jurisdiction. Its concurrent jurisdiction is
exercised concurrently with the High Courts and the SCA. On certain
other matters, only the Constitutional Court can decide, giving it
exclusive jurisdiction on these issues.
The 1996 Constitution provides for the concurrent exercise of
jurisdiction of the High Courts, the SCA and the Constitutional Court in
respect of direct challenges to the constitutionality of all forms of
legislation. This means that any challenge to a provision of an Act of
Parliament, a provincial legislature or delegated legislation would
usually first be lodged in the High Court. If the High Court or later the
SCA declares the legislation invalid, the Constitutional Court must
confirm this before such an order will have any force or effect.104 This
means all decisions by a High Court or the SCA declaring a legislative
provision unconstitutional and invalid will always end up in the
Constitutional Court as the Constitutional Court is required either to
confirm the order of invalidity of the lower court or to reject that order.
This is necessary because it would be untenable for a situation to arise
where a High Court declares a legislative provision to be invalid and this
provision is thus inoperable within the jurisdiction of that High Court
while it remains in force in other jurisdictions. If a lower court does not
declare the legislation invalid, an appeal can nevertheless be lodged
against this decision with the Constitutional Court.
Jurisdiction on issues around the interpretation and application of
legislation, common law or customary law are also shared between the
High Courts, SCA and Constitutional Court. As we have seen, where a
dispute arises on an arguable point of law of general public importance
(even when this point of law is non-constitutional in nature), then the
Constitutional Court also has concurrent jurisdiction with lower courts.
Over and above this concurrent jurisdiction, the Constitutional
Court also has exclusive jurisdiction to hear cases dealing with a
distinct set of issues. As the Constitutional Court explained in Women’s
Legal Trust v President of the Republic of South Africa and Others:
These exclusive competencies draw on the Court’s political legitimacy. They
reflect its special status as guardian of the Constitution, with exclusively
constitutional functions and a specially-determined composition. Any exercise
of the judicial function may cause tension with the other arms of government
and trigger political contention. Hence the mere fact that a matter is or may
become politically fraught does not of itself mean that only this Court has
jurisdiction to deal with it. More is needed. Dispositive indications may lie in
the nature of the obligation, whether its content can be clearly ascertained,
whether it is stated unambiguously in the Constitution, how its content is
determined, and whether it is capacity-defining or power-conferring.105

Thus, the Constitutional Court has exclusive jurisdiction to decide

disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of
those organs of state.106 For example, where a dispute arises between a
provincial government and the national government about their
respective powers or between a provincial legislature and the national
Parliament about the respective legislative powers of each, then only
the Constitutional Court has jurisdiction to hear the case.
 The Constitutional Court also has exclusive jurisdiction to decide on
the constitutionality of any parliamentary or provincial Bill referred to it
by the President or the relevant Premier in terms of section 79 or 121 of
the Constitution when the President or the respective Premier has
reservations about the constitutionality of a Bill.107 In addition, the
Constitutional Court has exclusive jurisdiction to decide on
applications by members of the NA or provincial legislatures to declare
invalid all or parts of an Act of Parliament or the provincial legislatures
in terms of section 80 or 122 of the Constitution.108 In terms of these
sections, such an application can only be made if supported by at least
one third of the members of the NA109 or at least 20% of the members of
a provincial legislature.110 Such an application must be made within 30
days of the date on which the President or the Premier assented to and
signed the Act.111 This provision allows opposition parties who believe
that a newly passed Act is unconstitutional to refer the Act to the
Constitutional Court before the Act is implemented.
The Constitutional Court has exclusive jurisdiction to decide on the
constitutionality of any amendment to the Constitution.112 Note,
however, that in United Democratic Movement v President of the
Republic of South Africa and Others (African Christian Democratic Party
and Others Intervening ; Institute for Democracy in South Africa and
Another as Amici Curiae) (No 2), the Court stated that amendments to
the Constitution passed in accordance with the manner and form
requirements of section 74 of the Constitution ‘become part of the
Constitution’.113 Once part of the Constitution, amendments cannot be
challenged on the grounds of inconsistency with other provisions of the
Constitution. This means ‘[t]he Constitution, as amended, must be read
as a whole and its provisions must be interpreted in harmony with one
another. It follows that there is little if any scope for challenging the
constitutionality of amendments that are passed in accordance with the
prescribed procedures and majorities’.114 Challenges to the
constitutionality of amendments to the Constitution would therefore be
based on whether the correct procedure was followed when passing the
amendment. For example, if an amendment to the Constitution directly
or indirectly amends section 1 of the Constitution, such an amendment
must be passed with a 75% majority in the NA. If an amendment of any
section of the Constitution would have the effect, say, of watering down
the provision in section 1 regarding the supremacy of the Constitution
and it is not passed with a 75% majority, the Court would be able to
invalidate the amendment.
It is unclear whether a duly passed amendment of the ‘basic
structure’ of the Constitution could be challenged in the Constitutional
Court. In Premier of KwaZulu-Natal and Others v President of the
Republic of South Africa and Others, Mahomed DP made the following
obiter remarks about this matter:
There is a procedure which is prescribed for amendments to the Constitution
and this procedure has to be followed. If that is properly done, the amendment
is constitutionally unassailable. It may perhaps be that a purported
amendment to the Constitution, following the formal procedures prescribed by
the Constitution, but radically and fundamentally restructuring and re-
organizing the fundamental premises of the Constitution, might not qualify as
an ‘amendment’ at all.115

Given the fact that any radical restructuring of the fundamental

premises of the Constitution would, in effect, constitute an amendment
of section 1 of the Constitution which requires a 75% majority in the NA,
it is difficult to see that the Constitutional Court would ever have the
opportunity to develop this obiter statement.
The Constitutional Court has exclusive jurisdiction to decide that
Parliament or the President has ‘failed to fulfil a constitutional
obligation’.116 The words ‘fulfil a constitutional obligation’ must be given
a narrow meaning.117 This is because the words are part of a broader
distribution of jurisdictional competence in the Constitution. We need
to interpret the words narrowly to ensure that they do not clash with the
provision in section 172(2)(a) that gives other courts jurisdiction over
‘conduct of the President’. The same reasoning applies to obligations the
Constitution imposes on Parliament as section 172(2)(a) also grants
other courts jurisdiction over the validity of Acts of Parliament.118 An
alleged breach of a constitutional obligation must relate to an obligation
that is specifically imposed on the President or Parliament.119 While the
phrase ‘failed to fulfil a constitutional obligation’ in section 167(4)(e)
must be narrowly construed, section 172(2)(a), which gives other courts
competence to scrutinise the constitutionality of presidential and
parliamentary acts, must be widely interpreted120 to ensure that
absurdities do not arise. Thus the Constitutional Court has held that it
alone has jurisdiction to determine whether Parliament has fulfilled its
obligation to facilitate public involvement in passing legislation.121 In
Economic Freedom Fighters v Speaker of the National Assembly and
Others; Democratic Alliance v Speaker of the National Assembly and
Others, the Constitutional Court further held that where both the
President and the National Assembly are said to have breached their
respective constitutional obligations, and exclusive jurisdiction is only
proven in respect of the one but not the other, there might still be room
to entertain the application against both provided it is in the interests of
justice to do so.
This would be the case, for example, where: (i) the issue(s) involved are of high
political importance with potentially far-reaching implications for the
governance and stability of our country; (ii) the issue(s) at the heart of the
alleged breach of constitutional obligations by both the President and the
National Assembly are inseparable; and (iii) the gravity and nature of the
issue(s) at stake are such that they demand an expeditious disposition of the
matter in the interests of the nation.122

Lastly, only the Constitutional Court has the jurisdiction to certify a

provincial constitution in terms of section 144.123
As pointed out above, in all matters not exclusively reserved for the
jurisdiction of the Constitutional Court, the Constitutional Court
ordinarily functions as a court of appeal, hearing cases that come to it
after decisions by the High Courts and/or the SCA, or hearing cases in
which it is required to consider whether to confirm an order of
invalidity from lower courts. However, section 167(6) of the
Constitution allows direct access to the Constitutional Court – even in
cases where it does not have exclusive jurisdiction – when in the view of
the Constitutional Court it is in the interest of justice to allow such
direct access. This is an extraordinary procedure and the Court will only
grant direct access to litigants on issues on which it has concurrent
jurisdiction in the most exceptional cases. This means that ‘compelling
reasons are required to justify a different procedure and to persuade
this Court that it should exercise its discretion to grant direct access’.124
As a general rule, the Constitutional Court is reluctant to grant direct
access as it would then have to decide the legal and factual issues
without the benefit of the wisdom of one or more lower courts. It has
ruled that the ‘Court is placed at a grave disadvantage if it is required to
deal with difficult questions of law, constitutional or otherwise …
virtually as a court of first instance’.125 It is also not considered to be in
the interest of justice for a court to sit as a court of first and last instance
as the losing litigants will then have no chance of appealing against the
decision given:
Experience shows that decisions are more likely to be correct if more than one
court has been required to consider the issues raised. In such circumstances
the losing party has an opportunity of challenging the reasoning on which the
first judgment is based, and of reconsidering and refining arguments
previously raised in the light of such judgment.126

To decide whether it is in the interest of justice to grant direct access,

the Court will ask whether the case is of such urgency that direct access
should be granted.127 This is because the Court has argued that it was
normally important for a case first to be heard in the High Court (and
perhaps the SCA) because of the ‘benefits that may be derived from the
judgments of other courts’.128 Those courts should therefore not
ordinarily be bypassed by litigants who want to speed up the hearing of
their case.129 The Court first considered the provision relating to direct
access in Bruce and Another v Fleecytex Johannesburg CC and Others,
where it set out the factors that are relevant to applications for direct
access to it as follows:
Whilst the prospects of success are clearly relevant to applications for direct
access to this Court, there are other considerations which are at least of equal
importance. This Court is the highest Court on all constitutional matters. If, as a
matter of course, constitutional matters could be brought directly to it, we
could be called upon to deal with disputed facts on which evidence might be
necessary, to decide constitutional issues which are not decisive of the
litigation and which might prove to be purely academic, and to hear cases
without the benefit of the views of other Courts having constitutional
jurisdiction. These factors have been referred to in decisions given by this
Court on applications for direct access under the interim Constitution, and are
clearly relevant to the granting of direct access under the 1996 Constitution. It
is, moreover, not ordinarily in the interests of justice for a court to sit as a court
of first and last instance, in which matters are decided without there being any
possibility of appealing against the decision given.130

Does the SCA still have a meaningful role to

play?
As we have noted, the Constitution Seventeenth
Amendment Act has changed the jurisdictional
landscape. Among other things, this amendment
effected changes to section 167(3)(a) of the
Constitution to affirm the Constitutional Court as ‘the
highest court of the Republic’. This amendment thus
turned the Constitutional Court into the court of final
instance for all matters of points of legal doctrine (but
not of factual disputes or disputes about the
application of legal principles to factual disputes),
whether these matters relate to the Constitution or not.
The SCA (discussed below) has therefore ceased
to be the highest court for all non-constitutional
matters. The proposed amendments have potentially
far-reaching consequences, but these are ameliorated
by amendments to section 167(3)(b) of the
Constitution which states that the Constitutional Court
may decide constitutional matters and ‘any other
matter’, but only ‘if the Constitutional Court 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’. The
Constitutional Court retains the power to make the final
decision on whether a matter is within its
jurisdiction.131 Section 167(3)(b) extends the
jurisdiction of the Constitutional Court to all matters
but allows the Court to manage its own docket by
 granting it the discretion to decide when to take on
non-constitutional matters on the basis that these
raise a point of law of general public importance.
Given the fact that section 39(2) of the
Constitution already allows the Court to consider
matters regarding the development of the common law
and customary law and the interpretation of legislation
in line with the spirit, purport and objects of the Bill of
Rights, it is unclear to what extent the amendment will
affect the case load of the Court. In effect, the answer
to this question will depend on the rules developed by
the Constitutional Court around when to consider a
case that does not directly or indirectly raise any
constitutional issue. However, arguably, the
amendments lower the status and diminish the
influence of the SCA as it no longer acts as the highest
court in all non-constitutional matters. The question
that can be posed is whether the SCA has not become
superfluous. What meaningful role does the SCA still
play, given that it no longer acts as the highest court in
any matter apart from on disputes of fact?

6.3.2.2 Supreme Court of Appeal

As pointed out above, the interim Constitution established a seemingly
clear division between the jurisdiction of the two appellate courts in
relation to constitutional and non-constitutional issues.132 The SCA was
the court of final instance in non-constitutional matters while the
Constitutional Court was the court of final instance in constitutional
matters. In terms of the interim Constitution, the SCA had no
jurisdiction to deal with constitutional matters.
The 1996 Constitution changed this arrangement and awarded the
SCA jurisdiction to hear and decide constitutional matters as it is
empowered to hear appeals ‘in any matter arising from the High
Court’.133 Before the advent of the Constitution Seventeenth
Amendment Act where a matter did not include a constitutional issue,
the SCA was the court of final instance. Now the SCA may be the court
of final instance in non-constitutional issues but only if the
Constitutional Court decides not to hear an appeal from the SCA on the
grounds that the matter raises an arguable point of law of general public
importance which ought to be considered by the Constitutional Court.
This means that the SCA will only be the truly final court for decisions
relating to factual findings and ordinary appeals relating to the
application of non-contested legal rules to sets of facts. When a case
raises constitutional issues and does not deal with an issue on which
the Constitutional Court has exclusive jurisdiction, the case is first
heard by the High Court after which an appeal can be lodged with
either the SCA or the Constitutional Court directly.
When the constitutional matter involved is one that turns on the
direct application of the Constitution and does not involve the
development of the common law or customary law, considerations of
cost and time may make it desirable that the appeal be brought directly
from the High Court to the Constitutional Court, circumventing the
SCA.134 The issue is different when the SCA is asked to develop the
common law. The Constitutional Court will not ordinarily exercise its
jurisdiction to develop the common law without the SCA having
considered the matter first.135 This is because the SCA is viewed as
having a broad understanding and insight into the nature and scope of
the common law. It will therefore arguably be able to make a valuable
contribution to any debate on whether and to what extent the common
law should be developed.
In Masiya v Director of Public Prosecutions Pretoria (The State) and
Another, the Constitutional Court endorsed this important role of the
SCA, holding that any constitutional issues that involve, for example,
the development of the common law, should first be taken to the SCA
because of its jurisdiction and expertise in the common law.136 The
same applies to matters involving the indirect application of the Bill of
Rights to the interpretation of ordinary legislation. In such cases, the
SCA would normally be required to deal with a case before it is
considered by the Constitutional Court.137 As the Constitutional Court
stated in Amod v Multilateral Motor Vehicle Accidents Fund:
 When a constitutional matter is one which turns on the direct application of the
Constitution and which does not involve the development of the common law,
considerations of costs and time may make it desirable that the appeal be
brought directly to this Court. But when the constitutional matter involves the
development of the common law, the position is different. The Supreme Court
of Appeal has jurisdiction to develop the common law in all matters including
constitutional matters. Because of the breadth of its jurisdiction and its
expertise in the common law, its views as to whether the common law should
or should not be developed in a ‘constitutional matter’ are of particular
importance.138

6.3.2.3 High Courts

The Constitution confers wide-ranging jurisdiction on the various High
Courts in respect of constitutional matters, as the High Courts may
decide any constitutional matter except those matters exclusively
reserved for the jurisdiction of the Constitutional Court or matters
assigned by an Act of Parliament to another court of a similar status as a
High Court.139 This means that most cases raising constitutional issues
will first be heard in one of the High Courts. However, as we noted
above, where the High Court declares invalid any provisions of an Act of
Parliament or a provincial legislature, such an order must be confirmed
by the Constitutional Court before that order has any force.140 In such
cases, no appeal to the SCA is required and no leave for appeal need be
sought from the Constitutional Court.
The situation is different where a High Court declines to find
legislation inconsistent with the Constitution and does not declare the
impugned provisions invalid. In this case, there will be no automatic
referral to the Constitutional Court and an appeal will have to be lodged
by the party seeking an order of invalidity.141

6.3.2.4 Magistrates’ courts

Magistrates’ courts do not have jurisdiction to hear constitutional
matters. Section 170 of the Constitution states that magistrates’ courts
and all other courts may decide any matter determined by an Act of
Parliament, but a court of a status lower than a High Court may not
enquire into or rule on the constitutionality of any legislation or any
conduct by the President. Section 110(1) of the Magistrates’ Courts
Act142 confirms that magistrates’ courts cannot pronounce on the
validity of any law or conduct of the President. Section 110(2) states that
when an allegation that a law or conduct by the President is
unconstitutional and invalid is raised in a magistrates’ court, the
magistrate in question must continue and decide the matter on the
assumption that the law or conduct in question is valid. If a litigant
wishes to pursue the question, he or she will have to approach the High
Court.

6.4 The independence of the superior courts

6.4.1 Introduction
South Africa’s transition to an open and democratic society with a
supreme Constitution relied heavily on the establishment of an
independent and impartial judiciary. In the new system, the role of the
judiciary was dramatically expanded to ensure the protection of
fundamental rights and to ensure that government (as well as private
institutions) remained within the bounds of the law and honoured the
constitutional commitment to openness and democracy. Given the
manner in which the judiciary was tainted during apartheid, it may be
surprising that this institution was entrusted with such a crucial role in
the transition to democracy, especially given the fact that in terms of the
political settlement, it was the only branch that remained largely
unchanged in the new democratic era.143 As we have pointed out, when
the new Constitution came into effect, the judiciary was still largely
dominated by white men and tainted by its role in the interpretation
and implementation of apartheid legislation.144
Despite this history, when South Africa became a democracy, no
judges were relieved of their duties and the courts did not only retain
their powers, but were given extended powers far exceeding those they
had enjoyed under apartheid. The only change came in the form of the
addition of the Constitutional Court to the existing court structure and
changes to the manner in which judges are appointed. While the other
courts and the judges who staffed these courts remained in place, the
interim Constitution provided for the creation of a separate
Constitutional Court to act as the final arbiter of all constitutional
matters.
Against this background, the creation of the Constitutional Court is
a significant development in South Africa’s transition, representing a
first step on the journey of transforming the legal system as a whole. It is
difficult to imagine that the judiciary would have been awarded such an
important role in the transition if a new Constitutional Court had not
been put in place. It is also difficult to imagine that the judiciary would
have been entrusted with the enforcement of a supreme Constitution in
the absence of a newly created Constitutional Court. The decision to
create the Constitutional Court was therefore partly a pragmatic
political move and partly a principled move aimed at increasing the
legitimacy of the judiciary. As the highest Court on constitutional
matters and now also on other matters of legal doctrine, it was
important that the Court be seen to be impartial and independent and
not tainted by South Africa’s apartheid past. Given the fact that the
Court would also act as the ultimate guardian of the impartiality and
independence of all other courts,145 its creation could therefore be said
to be the first step in restoring the independence of the South African
judiciary. It also allowed the retention of the court structure and made it
easier for the drafters of the interim and 1996 Constitutions to safeguard
the tenure of judges appointed by the apartheid government before
1994.

Should South Africa have followed the Kenyan

model of vetting old-order judges?
When Kenya adopted a new Constitution in 2010, one
of the most vexing questions faced by its drafters was
how to deal with members of the judiciary, many of
whom were widely believed to be corrupt or politically
compromised. The Kenyan Constitution created a
system of ‘vetting’ that required all judges to be vetted
 by an independent board of experts.146 Only those
judges who passed the vetting process retained their
positions. Judges found to have been implicated in
corruption or who had not shown the requisite
diligence or impartiality required of members of an
independent judiciary were not retained. The process
was aimed at re-establishing the credibility and
integrity of the Kenyan judiciary.
As we have seen, a similar process was not
followed in South Africa and all judges appointed
during the apartheid era retained their positions.
Instead, section 174(1) of the South African
Constitution merely states that ‘any appropriately
qualified woman or man who is a fit and proper
person’ may be appointed as a judicial officer while
section 174(2) requires that the need for the judiciary
to reflect broadly the racial and gender composition of
South Africa must be considered when appointing new
judicial officers. This decision ensured continuity in the
judiciary while envisaging that a gradual transformation
of the judiciary would take place through the
appointment of new judges as old-order judges retired.
The question is whether this choice was a wise one
or whether the Kenyan model would have been more
appropriate. Given the need for the judiciary to enjoy
legitimacy with the majority of South Africans, did the
South African model place too much emphasis on the
transformation of the judiciary through a gradual
appointment of new-order judges?

The independence of the judiciary is a distinctive feature of a

constitutional democracy. This independence refers to two ideals
related to the functioning of the courts as it pertains to ‘the relationship
between the courts and other state organs, the organization of
relationships between the courts themselves, and the internal
organization of the courts – as well as aspects regarding the legal
position of individual members of the judiciary’.147
The first ideal is that individual judges should interpret and enforce
the law impartially and without bias. This requires individual judges to
approach a specific case with an open mind, without taking into
account their own personal views, ideological commitments or party-
political beliefs. Impartiality is a complex notion. At its most extreme,
impartiality relates to the ability of each individual judge to apply the
law without fear or favour in accordance with the law, oath of office and
with his or her own sense of justice without submitting to any kind of
pressure or being swayed by his or her own views on political, social
and economic matters.148 This extreme notion of impartiality
presupposes that a judge can banish from his or her mind all personal
views and prejudices and can interpret a legal text and apply it to a set
of facts without being swayed by political or other personal
commitments or culturally influenced values and assumptions.
However, it is not clear whether a judge can always do so, especially as
far as the interpretation of the rather open-ended and general language
of the Constitution is concerned. Often a text – especially a text like the
Constitution containing general language – will not have one objective
meaning and a judge may be required to interpret that text.
Interpretation requires a judge to refer to considerations outside the
text itself to help give meaning to that text. In the first decision handed
down by the Constitutional Court, Kentridge J signalled awareness of
(but skirted) this issue when he remarked:
I am well aware of the fallacy of supposing that general language must have a
single ‘objective’ meaning. Nor is it easy to avoid the influence of one’s
personal intellectual and moral preconceptions. But it cannot be too strongly
stressed that the Constitution does not mean whatever we might wish it to
mean.149

On the one hand, the Court acknowledged the fact that the language of
the Constitution does not necessarily yield one ‘objective’ meaning
which the Court can discover in a mechanistic fashion. It thus
recognised the need to refer to extra-textual factors – such as the South
African context and history and comparable foreign case law 150 – when
interpreting the provisions of the Constitution. On the other hand, the
judgment resisted any move that would implicate the personal views,
political commitments and philosophy of the judges themselves in the
interpretative project in order to safeguard the (symbolic) boundary
between the work done by judges when they interpret and apply the law
and politics.151
In S v Makwanyane and Another,152 several of the justices asserted
the irrelevance of their personal, political or philosophical views when
interpreting the Constitution. Impartiality, they claimed, required
judges to ground their judgments in general human rights principles
that are above controversy and cannot be related to the personal views
of a judge.153 At the same time, many of the justices tentatively
acknowledged the open-ended nature of the language of the
Constitution and the inherent need to refer to ‘extra-legal’ values and
texts, including the South African political context and history, to justify
their decisions.154 The Constitutional Court has since often declared its
commitment to the centrality of the constitutional text in constitutional
interpretation. The judges of this court also acknowledge that any such
interpretation can only be conducted with the assistance of objective or
objectively determinable criteria, or, at the very least, criteria that are
somehow distanced from the personal views, opinions and political
philosophy of the presiding judge.155 However, it is an open question
whether judges can truly empty their minds of all their personal views
and political commitments when they interpret the Constitution and
apply it to a specific set of facts.
Despite these difficulties, the ideal of impartial adjudication
remains a cornerstone of an independent judiciary which has often
been affirmed by the Constitutional Court. Thus, the Constitutional
Court in President of the Republic of South Africa and Others v South
African Rugby Football Union and Others – Judgment on recusal
application (SARFU II) stated that:
It must be assumed that they can disabuse their minds of any irrelevant
personal beliefs or predispositions. They must take into account the fact that
they have a duty to sit in any case in which they are not obliged to recuse
themselves.156
 The test for independence
In S and Others v Van Rooyen and Others (General
Council of the Bar of South Africa Intervening),157 the
Constitutional Court affirmed that judicial
independence requires that individual judges must be
able to hear and decide cases that come before them
and that no outsider should be able to interfere with
the way a judge conducts his or her case and makes
his or her decision. This requires judges to act
impartially and, at an institutional level, it requires
structures to protect courts and judicial officers against
external interference.158
At the same time, it is important to note that there
are hierarchical differences between higher courts and
lower courts and that the requirements for
independence could be different for the two types of
courts.159 Just because they are treated differently
does not mean that magistrates’ courts are not
independent. Lower courts are entitled to protection by
higher courts if their independence is threatened so
the greater the protection that is given to higher courts,
the greater the protection is for lower courts. Moreover,
lower courts do not have the power to deal with
constitutional matters and the jurisdiction of the lower
courts set out in the Constitution is much more
restricted than that of the higher courts. This means
that lower courts do not need the same kind of
safeguards as the higher courts.
The test for independence is whether the court or
tribunal ‘from the objective standpoint of a reasonable
and informed person, will be perceived as enjoying the
essential conditions of independence’.160 It is
important that there is public confidence in the
administration of justice. Without that confidence, the
system cannot command the respect and acceptance
that are essential to its effective operation. It is,
therefore, important that a tribunal should be
perceived as independent, as well as impartial, and
that the test for independence should include that
perception. This test is an objective one.161 The
apprehension of bias must be a reasonable one, held
by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the
required information. We must ask what would an
informed person conclude when viewing the matter
realistically and practically, and having thought the
matter through. The question is whether a reasonable,
objective and informed person would on the correct
facts reasonably apprehend that the judge has not or
will not bring an impartial mind to bear on the
adjudication of the case, that is, a mind open to
persuasion by the evidence and the submissions of
counsel.
It is important to note that this objective test must
be properly contextualised.162 The perception that is
relevant for such purposes is, however, a perception
based on a balanced view of all the material
information. We ask how things appear to the well-
informed, thoughtful and objective observer, rather
than the hypersensitive, cynical and suspicious person.
Bearing in mind the diversity of our society, this
cautionary injunction is of particular importance in
assessing institutional independence. The well-
informed, thoughtful and objective observer must be
sensitive to the country’s complex social realities, in
touch with its evolving patterns of constitutional
development, and guided by the Constitution, its
values and the differentiation it makes between
different levels of courts.
 The Van Rooyen judgment provides a general test
to establish whether a judge would be impartial and
independent. We contend that when considering
whether the appointments procedure and other
structural safeguards intended to safeguard the
impartiality and independence of judges are sufficient,
this test must be used.

Judges may not always be able to be impartial (in the sense of being
able to make decisions without taking into account factors that are
legally irrelevant) and may not be able to act without fear or favour if the
conditions under which the judicial function is exercised do not allow
for this and if the judiciary is not created as an independent institution
that functions separately from the other branches of government.
Judges will only be able to rule impartially and to be truly independent
(from pressure of both the state and private actors) if they are able to
operate independently from the other branches of government. They
must be free from potential direct and indirect pressures that could
sway individual judges trying to act in as impartial a manner as is
humanly possible.
Structural safeguards must therefore be put in place to ensure that
judges are protected from the influence of and interference by other
branches of government (as well as from private business interests).163
This requirement for structural safeguards to guarantee the impartiality
and independence of judges places an emphasis on the functional
independence of the judiciary within the larger political system and its
functional relationship with the other branches of government in South
Africa. This second aspect of independence relates to:
the degree to which the judicial institution has a distinct and discrete role –
detached from the interests of the political system, the concerns of powerful
social groups, or the desires of the general public – to regulate the legality of
state acts, enact justice, and determine general and constitutional and legal
values.164
This means that judicial independence is not meaningful if judges
cannot exercise their judicial powers to check the arbitrary or unjust
exercise of power by political and social actors in society. The courts
(and the judges who staff the courts) must not be constrained by fear or
by practical difficulties from carrying out the ideal judicial role. This
implies that structures must be put in place to ensure that judges are
insulated from political and financial pressures and incentives.165 This
fact was endorsed by Chaskalson CJ in Van Rooyen where he argued
that:
the constitutional protection of the core values of judicial independence
accorded to all courts by the South African Constitution means that all courts
are entitled to and have the basic protection that is required … [i]mplicit in this
is recognition of the fact that the courts and their structure, with the
hierarchical differences between higher courts and lower courts which then
existed, are considered by the Constitution to be independent … that involves
an independence in the relationship between the courts and other arms of
government.166

To determine whether courts enjoy sufficient structural independence,

several factors must be explored. We do so here with reference to the
superior courts. As we have seen, magistrates do not exercise
constitutional jurisdiction, which means we will leave aside the position
of magistrates’ courts.

6.4.2 Appointment of judges

As noted above, before 1994, political considerations often played a
decisive role in the appointment of judges, thus potentially affecting the
impartiality and independence of judges. The drafters of the interim
and final Constitutions were faced with a difficult task in addressing this
problem.
On the one hand, in the new constitutional dispensation, judges are
given extensive additional powers. This includes the power to declare
invalid acts of the democratically elected Parliament and acts of the
executive, including the President. This means that the decisions of
judges will often have political consequences. Judges are therefore
potential actors in the political process.167 The questions raised in
chapter 2 about the counter-majoritarian dilemma therefore loom
large. It was therefore felt that the appointment of judges could not be
entirely insulated from the political process. This would potentially
delegitimise the judiciary and make it more difficult for it to strike down
legislation and the acts of members of the executive. On the other hand,
it would be undesirable to leave the appointment of all judges in the
hands of the President or other elected politicians. This could
potentially lead to a perception (as is the case in the appointment of
judges in the USA) that party-political considerations are the sole
criteria for the appointment of judges, thus affecting the independence
and impartiality of the judiciary.168
As a compromise, the Constitution created the Judicial Service
Commission (JSC) which is involved in the appointment of all superior
court judges (although this involvement differs depending on who is
appointed). The JSC was envisaged as playing a fundamental role in
ensuring the independence of the judiciary. The creation of the JSC
constituted the most radical break from the pre-constitutional
procedure for the appointment of judges.169 Section 178 of the
Constitution as well as the Judicial Service Commission (JSC) Act 170
established and regulates this body.
The composition of the JSC is of some importance. The ANC
favoured the establishment of a politically dominated body while,
unsurprisingly, the judges and legal profession favoured a body in
which the legal community would be in the majority.171 The
composition of the JSC reflects a compromise between these two
positions. The JSC is normally composed of 23 members who are drawn
from the judiciary, two branches (attorneys and advocates) of the legal
profession, the two Houses of the national legislature, the executive,
civil society and academia.172 The chair is taken by the Chief Justice who
also heads the Constitutional Court. Of the 23 members, 15 represent
political interests, including the Minister of Justice, the six members of
the NA (three members from minority parties), four members of the
NCOP (representing the majority party) and four presidential
nominees.173 The Constitutional Court has emphasised the important
role played by the JSC when it appoints judges and the need for
members of the JSC to take this task seriously:
 This strength [of the judiciary] relies, in no small measure, on ensuring that our
judicial appointment processes are able to attract and result in the selection of
the best possible candidates to serve as judges. If we are to have a strong
judiciary which enjoys public confidence and is capable of fulfilling its
constitutionally mandated role, of course judges who – in accordance with the
provisions of section 174(1) and (2) of the Constitution – are best placed to
fulfil this mandate must be appointed …

Since courts play a crucial role in our constitutional democracy, without doubt
the JSC’s function of recommending appointments to the senior judiciary is of
singular importance. Bearing in mind the importance of this function, I do not
think it unreasonable to expect that those that bear the responsibility of
nominating, designating or electing individuals for membership of the JSC will
take their responsibility seriously and identify people who are suitably
qualified for the position. Of course, we cannot be blind to some bad
appointments to a variety of senior positions that we have witnessed in
litigation that has come before the courts. But that is not reason enough to
make an assumption that the JSC may well be saddled with bad
appointments.174

When the members of the JSC discuss matters relating to a specific High
Court, the Premier of the province together with the Judge President of
the province also sit on the Commission.175 Matters that affect a specific
High Court include, for example, decisions about the appointment of
judges to that High Court, as well as decisions about the possible
disciplining or even removal of a judge of that High Court from office. If
the Premier of the 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.176
When vacancies occur in a court, the Chief Justice, as Chairperson
of the JSC, calls for nominations after which shortlisted candidates are
publicly interviewed. The JSC then makes recommendations to the
President on whom to appoint. While the JSC conducts its interviews in
public – a welcome departure from the secretive process followed
during the apartheid years – there is little transparency exhibited in the
criteria used for selection. The deliberations of the JSC are normally also
kept confidential. In the past this has led to criticism on the basis that
the JSC’s reasons for preferring one candidate are not always clear.177
The JSC has also been criticised for the manner in which it interviews
candidates. It is said that rarely are questions framed so as to afford a
candidate an opportunity to explain his or her approach to adjudication
and conception of the important constitutional values, and the
candidate’s general judicial philosophy and commitment to legal
transformation.178 However, the Constitutional Court confirmed in
Helen Suzman Foundation v Judicial Service Commission179 that where a
decision about the appointment or non-appointment of a candidate for
a judicial position is challenged in court, the JSC will provide to the
litigant the reasons for the decision by the JSC; the transcripts of the JSC
interviews; each candidate’s application for appointment; comments
on each candidate by various professional bodies and individuals; and
related research, submissions and correspondence.180 The Chief Justice
will distill the reasons for the decision, based on the deliberations of the
JSC. The majority of the court further held that recordings of the
deliberations of the JSC should also be provided to litigants challenging
the lawfulness of the appointment or non-appointment of a candidate
for judicial office.181 The JSC had argued that disclosure of its
deliberations would impede the selection process of judges as secrecy
allowed JSC members to discuss the merits of the candidates with
‘candour’ and in a robust manner. It further argued that if the content of
deliberations and thus the views held by commissioners about
candidates are divulged it might dissuade candidates from putting their
names forward out of fear of embarrassment. The majority of the court
rejected this argument, pointing out that JSC members will only be
worried about disclosure of their deliberations if they make
inappropriate comments, which they should not make.182 Furthermore,
‘the most embarrassing issues that could impugn the dignity or privacy
of candidates are raised during interviews’, which takes place in
public.183 While JSC deliberations remain secret unless an appointments
decision of the JSC is challenged in court, the Helen Suzman
Foundation judgment has the potential to impact on JSC deliberations
as JSC members may be more careful in what they say during such
deliberations, as they will be aware that their statements may be
revealed if their decision is challenged.
The role of the JSC in the appointment of judges differs depending
on the nature of the appointment to be made. 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 who both also
serve on the Constitutional Court. When making these appointments,
the President, as head of the national executive, appoints the person of
his or her choice after consulting the JSC and the leaders of parties
represented in the NA.184 The President must therefore consult the JSC,
as well as the leaders of opposition parties in the NA, before deciding on
a candidate for appointment, but the decision remains his or hers
alone. Similarly, when appointing the President and Deputy President
of the SCA, the President, as head of the national executive, appoints
the person of his or her choice after consulting the JSC (but in such
cases the President need not consult the leaders of parties represented
in the NA).185
There has been some controversy around the nature of the
consultation process required although, as stated, it is clear that
consultation has to occur prior to the appointment. Ex post facto
consultation after the President has made a final decision on an
appointment would be unlawful. No matter how rigorous this
consultation might have been, consultation requires more than
informing the parties to be consulted of a decision. 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’.186 However, it does not 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 NA.187 These appointments take
place in accordance with a more complicated procedure in which the
JSC plays a more important, but ultimately not decisive, role.
The JSC must prepare a list of nominees with three names more
than the number of appointments to be made and must then submit the
list to the President.188 The President may make appointments from the
list, but can also initially refuse to appoint someone from the list
provided by the JSC. However, if the President refuses to appoint a
judge from the list of names provided by the JSC, 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.189 This means if there is one vacancy in the
Constitutional Court, the JSC must send a list of four nominees to the
President. The President will then appoint one of the four nominees
unless he or she believes one or more of the nominees are not
acceptable or that the list should include a wider selection of names.
For example, if a vacancy occurs on the Constitutional Court and the
JSC sends the names of four white male candidates to the President, the
President may refuse to appoint one of the four nominees, asking for the
list to be augmented with black and female candidates. When making
decisions about the appointment of ordinary judges to the
Constitutional Court, the JSC and the President must keep in mind the
requirement that at least four members of the Constitutional Court
must at any given time be persons who were judges at the time they
were appointed to the Constitutional Court.190
The JSC plays a decisive role in the appointment of all other judges
to the SCA, High Courts and other specialised courts. This includes the
various Judge Presidents who serve as leaders of each of the High
Courts. In the appointment of such ordinary judges, the JSC selects
candidates to fill any vacancies and the President is then required to
appoint the judges ‘of all other courts on the advice of the Judicial
Service Commission’.191 Unlike with the appointment of the
Constitutional Court judges and the leadership of the SCA and the
Constitutional Court, in these cases the President has no discretion and
is required to appoint the candidates selected by the JSC.
As we have seen, the JSC has not always been clear about the criteria
used for the selection of judges for appointment. As noted above, the
Constitutional Court has confirmed that the JSC has a duty to select the
‘best possible candidates to serve as judges’.192 However, this is not an
objective standard and who the ‘best possible candidates’ are will
depend to a large degree on the criteria used for selection of judges. A
starting point for an enquiry into the qualities a candidate should have
for appointment to the bench is the text of the Constitution which spells
out the formal criteria for selection as a judge.193 Two essential criteria
appear in section 174(1) of the Constitution. These criteria are that a
person must be ‘appropriately qualified’ and ‘a fit and proper person’ to
be appointed as a judge. A further criterion for a Constitutional Court
judge is that the appointee must be a South African citizen. These
criteria can be regarded as essential or necessary minimum criteria for
appointment in the sense that a person who is not appropriately
qualified or who is not a fit and proper person may not be appointed as
a judicial officer.
However, the Constitution does not expressly detail the content of
these criteria and we are therefore required to interpret them. The JSC
itself has developed a set of criteria – over and above those mentioned
in the Constitution – that it takes into account when considering
appointments to the judiciary. These are as follows:
1. Is the proposed appointee a person of integrity?
2. Is the proposed appointee a person with the necessary energy and
motivation?
3. Is the proposed appointee a competent person?
a) technically competent
b) capacity to give expression to the values of the Constitution
4. Is the proposed appointee an experienced person?
a) technically experienced
b) experienced in regard to values and needs of the community
5. Does the proposed appointee possess appropriate potential?
6. Symbolism. What message is given to the community at large by a
particular appointment? 194

Although somewhat vague, these criteria can serve as a starting point

for a broader enquiry into the attributes of an ideal judge in South
Africa’s constitutional democracy. One way of engaging with this
difficult question about the criteria for appointment is to take account
of the characteristics of the ideal judge. In addition to the criteria
formulated by the JSC, it has been argued that when considering the
criteria for the appointment of the ideal judge, we should consider the
nature of the judicial function and the powers that vest in judges.195 The
Constitution requires that the judiciary should be independent, must
protect the Constitution and uphold rights, and must apply the law
impartially and without fear, favour or prejudice.196 Judicial nominees
should display the qualities associated with these requirements for the
judiciary. Chief Justice Mohamed made the following remarks about the
qualities of an ideal judge:
[S]ociety is … entitled to demand from Judges fidelity to those qualities in the
judicial temper which legitimize the exercise of judicial power. Many and
subtle are the qualities which define that temper. Conspicuous amongst them
are scholarship, experience, dignity, rationality, courage, forensic skill,
capacity for articulation, diligence, intellectual integrity and energy. More
difficult to articulate, but arguably even more crucial to that temper, is that
quality called wisdom, enriched as it must be by a substantial measure of
humility, and by an instinctive moral ability to distinguish right from wrong
and sometimes the more agonising ability to weigh two rights or two wrongs
against each other which comes from the consciousness of our own
imperfection.197

More recently, Chief Justice Mogoeng made somewhat similar remarks

about the qualities of an ideal judge:
The competence of judicial officers is not negotiable. A demonstrable track-
record of fair-mindedness, commitment to human rights, and the rule of law,
decisiveness, humility and personal independence are some of the key traits of
a personality fit to serve in the highest court in the land.198

We contend that the commitment of a candidate to the values

enshrined in the Constitution is pivotal. These values include respect
for human dignity, the achievement of equality and the advancement of
human rights.199 It has been argued that this commitment to the values
in the Constitution be encapsulated in the requirement that candidates
must be committed to the transformative goals of the Constitution. As
Cowen argues:
While, at least as far as government is concerned, the executive and legislative
branches are the primary architects of social change, judges are entrusted to
protect rights and they have the power to halt and guide government action. It
would thus seem legitimate for selectors to enquire whether candidates for
judicial selection are committed to the process of social change as the
Constitution mandates. That may either entail assessing whether a judge might
seek to exercise judicial power with a view to preserving the status quo (on the
one hand) or by assuming the role of primary architect of social change (on the
other). Either is arguably inimical to the values of the Constitution. While
assessing commitment to constitutional values and the Constitution’s
transformative project is a legitimate exercise for selectors, selectors must be
 cautious not to venture beyond assessing values to assessing political
commitments. It might at times be a difficult line to draw, but it is an important
one if we are to preserve the principle of judicial independence. As
foreshadowed above, an understanding of theories of adjudication might
helpfully inform selectors’ approach.200

Apart from the personal values of judicial candidates, the JSC is also
required to take into account another pivotal consideration, namely the
need to transform the judiciary better to reflect the racial and gender
composition of the broader South African community. These
requirements are encapsulated by section 174(2) of the Constitution
which states that:
The need for the judiciary to reflect broadly the racial and gender composition
of South Africa must be considered when judicial officers are appointed.

There are at least two reasons why this section is important. First, as
pointed out above, at the time of the transition to democracy the South
African judiciary was almost exclusively male and white, a situation that
potentially affects the credibility and legitimacy of the judiciary.201
Special measures are therefore required to increase diversity on the
bench to ensure that the judiciary more fairly reflects the composition
of the South African public whom it serves. It would be difficult, if not
impossible, for the judiciary to retain its legitimacy in the eyes of the
public if the overwhelming majority of judges were white and male.
Second, South Africa has an egregious history of 300 years of racial
and gender discrimination – as well as discrimination on many other
grounds like disability, ethnicity and sexual orientation – in society at
large as well as in the legal profession, and there remain ongoing racial
and gender prejudices in society and in the legal profession.202 This
provision is important as it redresses these racial and gender prejudices
and provides a fair opportunity to groups who did not enjoy the same
privileges and opportunities for professional advancement as white
men did to be appointed to the bench. The requirement therefore
addresses possible lingering racial and gender discrimination in the
appointment of judges and is intended to ensure a fair appointment
process. In short, it is necessary to consider the racial and gender
composition of the bench to eradicate patterns of unfair discrimination
in the appointment of judges.203
Finally, it is argued that diversity on the bench can also improve the
quality of justice meted out by the courts. In a diverse society, judges
from different racial backgrounds and different genders and sexual
orientations will often bring different perspectives to bear. This can
improve the quality of jurisprudence and strengthen the intellectual
output of the judiciary.204 As can be seen from Table 6.2 below,205 the JSC
has done relatively well in ensuring the creation of a non-racial
judiciary while gender representation has also improved but still lags
behind. Similarly, the commitment to anti-discrimination on the
grounds of sexual orientation is debatable.206

Table 6.2 Composition of the judiciary in June 2019

There is some disagreement about the exact manner in which section

174(2) of the Constitution should be interpreted. Should considerations
of racial and gender representation trump any other considerations for
appointment as set out above, or should race and gender be important,
but not always decisive, factors in making decisions about judicial
appointments? It appears that from time to time the JSC commences its
enquiry by an examination of the racial and gender composition of the
particular court and the importance of the appointment in so far as the
racial composition is concerned. In such cases, representativity then
becomes the key determinant for an appointment.207 Whether this
approach is correct is vigorously debated in South Africa.208 Given our
apartheid history, it is difficult to argue against an appointment policy
that would strive for a bench that is composed primarily of judges of
African descent. However, this needs to be done without frustrating
non-racialism and without perpetuating apartheid’s offensive racial
practices.209 The appointment policy also needs to ensure the
appointment of judges fully committed to the values enshrined in the
Constitution. How to strike this balance without impeding the rapid
transformation of the judiciary remains a vexing question.
The selection of judges by the JSC is subject to judicial review. The
JSC is a body created by the Constitution. As such, the JSC exercises
public power and is hence controlled by what is prescribed in the
Constitution and the law. In the case of Judicial Service Commission and
Another v Cape Bar Council and Another,210 the SCA affirmed that the
decisions of the JSC – including decisions about the appointment or
non-appointment of judges – could be reviewed by a court, based on
the principle of legality and rationality.211
The judgment sets out the manner in which the members of the JSC
ought to – but do not always – arrive at decisions about the
appointment of judges. Apart from the requirement that the JSC can
only make a valid decision if it is properly constituted,212 the SCA also
found – as already pointed out – that the JSC was obliged to provide
reasons for a decision not to appoint a candidate. As the JSC is under a
constitutional duty to exercise its powers in a way that is not irrational
or arbitrary, and as the JSC is an organ of state, it is bound to the values
of transparency and accountability. Without giving reasons, it would
not be possible for the JSC to be held accountable and to act in a
transparent manner.213

How being black or female ought to influence

the selection process in a specific case
In discussing the way in which section 174(2) of the
Constitution should be applied, Cowen suggests how
being black or female ought to influence the selection
process in a specific case, arguing that:
The easy case arises where two candidates who are similarly well-
qualified are being considered for appointment. Subject to any
special needs of a court, the appointment of a candidate to
enhance racial or gender representativity would seem appropriate.
The difficult case arises where two qualified candidates are being
considered but the candidate who will not enhance racial or
gender representativity is appreciably better qualified in an
important respect. In that case, the consideration of the need for
racial and gender representativity on the bench requires careful
evaluation and cannot be the only relevant consideration.
Importantly, whether the better qualified candidate should be
appointed may depend on what qualities separate the two
candidates and whether the qualities that stand out in the better
qualified candidate are qualities that are needed to ensure a
bench that is best able to perform the adjudicative functions
entrusted to the judiciary by the Constitution. That evaluation
cannot focus myopically on the relative merits of two candidates:
rather, selectors require an appreciation of the overall needs of
the judiciary and the court in question at the relevant time.

If that evaluation is to be conducted honestly and constructively,

there is a real need to remove racist and sexist discourse from our
discussions and to focus squarely on the detailed criteria for
judicial selection. There is similarly a real need to be honest
about mistakes we may have made in the past. The mistakes are
many and will include engaging in discourse that assumes that
more meritorious white candidates are being overlooked in favour
of less meritorious black or female candidates. But they also
include appointing judges for political favour or in circumstances
where qualifications or fitness and propriety are in question. That
much we know at least from our apartheid history.

In this regard, many express the view that being black, or being a
woman, constitutes a valid criterion for judicial selection. This
approach is misleading because the criteria for judicial selection
are that a person be appropriately qualified and a fit and proper
person. If a person is not appropriately qualified and is not a fit
and proper person, it is irrelevant whether they are black or
female. That person does not qualify for judicial office.

It is also misleading because it encourages the thinking that

being black or female somehow enhances a candidate’s fitness
and propriety for office. Yet, in a society committed to non-
racialism and non-sexism, we should be vigilant not to assume
that any qualities relevant to judging flow from membership of a
group. As argued above in [the] context of the Sotomayor
controversy, it may be that because a candidate is black or
female, and has experienced discrimination, their capacity for
empathy and compassion is enhanced, but that will depend on
the person in question and does not flow automatically from their
membership of a group. Similarly, a person’s commitment to
constitutional values or qualification to adjudicate questions of
constitutional law does not flow from their race or gender, but
 from their humanity, what skills and experience they possess and
how they have chosen to live their lives.

Finally, we ought not be too quick to assume that the legitimacy

of the bench will be best enhanced if race and gender
representativity is accelerated. We must obviously aim to meet the
objective of racial and gender representativity with due expedition
and treat it with priority, because the judiciary’s legitimacy
depends on it. But its legitimacy will ultimately depend on how
well the judiciary is able to perform the functions the Constitution
entrusts to it.214

6.4.3 The judicial oath of office

Before a South African judge takes office, he or she swears or affirms:
(to) be faithful to the Republic of South Africa, (to) uphold and protect the
Constitution and the human rights entrenched in it, and (to) administer justice
to all persons alike without fear, favour or prejudice, in accordance with the
Constitution and the law.215

This oath requires each judge to decide a case on its legal merits in
accordance with the Constitution and the law and without showing
either favour or disfavour to any of the litigants. The oath therefore
requires judges to promise that they will, as far as it is humanly possible,
always act impartially and uphold the law.216 The requirement
represents a further formal safeguard of the impartiality of judges and
the independence of the judiciary.

6.4.4 Security of tenure

The independence of judges depends, in part, on a guarantee that
judges will not be dismissed or face the threat of dismissal from office
for making a decision adverse to the interest of the government of the
day or of powerful business or other societal interests aligned with the
government. This is why the security of tenure of judges is entrenched
in the Constitution.217 There are two aspects to this guarantee of security
of tenure. First, judges are appointed for a fixed term or until they reach
a fixed age of retirement. They cannot be forced to retire before their
term ends or before they reach the prescribed age of retirement.
Second, judges can only be removed from office before the end of their
tenure after following a special procedure that entrenches their
position. We deal with these two aspects in turn.
Section 176 of the Constitution states that Constitutional Court
judges hold office for a non-renewable term of 12 years or until they
attain the age of 70, whichever occurs first except where an Act of
Parliament extends the term of office of a Constitutional Court judge.218
Section 4 of the Judges’ Remuneration and Conditions of Employment
Act 219 extends this term to 15 years of active service. Active service
includes service performed as a judge on any other court. However,
regardless of the period of active service of a Constitutional Court judge,
the judge must retire when he or she reaches the age of 75. This means
that a Constitutional Court judge who has been in active service on a
High Court or on the SCA for three or more years, will usually serve a
fixed term of 12 years on the Constitutional Court. This is unless the
judge turns 75 before completing the 12-year term, in which case the
judge will retire when reaching the age of 75. However, a judge who has
not served on any other court before appointment to the Constitutional
Court will normally serve a fixed term of 15 years on that court,
provided, again, that he or she does not reach the age of 75 before the
end of this 15-year period.
The provision in section 176 of the Constitution that an Act of
Parliament could extend the term of office of a Constitutional Court
judge was effected by an amendment of the Constitution in 2001. The
provisions of the Judges’ Remuneration and Conditions of Employment
Act then purported to give effect to the provisions of section 176. These
provisions were subjected to sustained criticism 220 on the basis that
they watered down the security of tenure provisions and could
influence the independence of the judiciary.
This criticism was even more sustained in relation to the position of
the Chief Justice and the President of the SCA. Section 8 of the Judges’
Remuneration and Conditions of Employment Act authorised the
President to request a Chief Justice or the President of the SCA at the
end of their term of service ‘to continue to perform active service for a
period determined by the President’ on the condition that this
extension could not go beyond the date on which the Chief Justice or
President of the SCA turned 75 years of age. Section 8 therefore granted
the power to extend the term of office of the Chief Justice and the
President of the SCA to the President who could extend the term for any
period and for as many times as he or she wished. The section was
ostensibly passed in accordance with the amended section 176(1) of the
Constitution, which, as we have seen, authorises Parliament to extend
the term of office of a Constitutional Court judge.
When former President Jacob Zuma attempted to extend the term of
office of then Chief Justice Sandile Ngcobo, relying on section 8 of the
Act, the constitutionality of section 8 was challenged in the
Constitutional Court. In 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,221 the
Court declared invalid section 8(a) of the Judges’ Remuneration and
Conditions of Employment Act. The judgment affirmed and further
elaborated on constitutional law principles relating to the
independence of the judiciary, the rule of law and the separation of
powers. The Court pointed out that section 8(a) was constitutionally
problematic because it conferred on the President an executive
discretion to decide whether to request a Chief Justice to continue to
perform active service and, if he or she agrees, to set the period of the
extension. The term of office could be extended if the President decided
so and the Chief Justice acceded to the request. Deciding on the period
of the extension was in the exclusive discretion of the President and was
unfettered in the sense that the President was not required to consult
anyone before extending the term of the Chief Justice.222
What made section 8(a) more problematic was that in its purported
delegation, Parliament had not sought to furnish any, let alone
adequate, guidelines for the exercise of the discretion by the President.
The provision thus usurped the legislative power granted only to
Parliament by section 176 of the Constitution and therefore constitutes
an unlawful delegation of legislative power to the President.223 In a
constitutional democracy in which the separation of powers doctrine is
respected, Parliament may not ordinarily delegate its essential
legislative functions to the executive. Although section 176(1) of the
Constitution creates an exception to the requirement that a term of a
Constitutional Court judge is fixed, that authority, however, vests in
Parliament and nowhere else. The Court noted that section 176(1) does
not merely bestow a legislative power on Parliament, but by doing so
also marks out Parliament’s significant role in the separation of powers
and protection of judicial independence.224 As the Court stated:
Accordingly, section 8(a) violates the principle of judicial independence. This
kind of open-ended discretion may raise a reasonable apprehension or
perception that the independence of the Chief Justice and by corollary the
judiciary may be undermined by external interference of the Executive. The
truth may be different, but it matters not. What matters is that the judiciary
must be seen to be free from external interference.225

Focusing on the importance of a fixed term of office for judges to

protect and safeguard the independence and impartiality of the
judiciary, the Court stated:
It is well established on both foreign and local authority that a non-renewable
term of office is a prime feature of independence. Indeed, non-renewability is
the bedrock of security of tenure and a dyke against judicial favour in passing
judgment. Section 176(1) gives strong warrant to this principle in providing
that a Constitutional Court judge holds office for a non-renewable term. Non-
renewability fosters public confidence in the institution of the judiciary as a
whole, since its members function with neither threat that their terms will not
be renewed nor any inducement to seek to secure renewal.226

However, the Constitutional Court went further, finding that it would be

impermissible for the legislature to single out the office of the Chief
Justice for an extension of his or her term of office. Despite section
176(1), Parliament was therefore not authorised to pass legislation that
would extend the term of office of only the Chief Justice:
In approaching this question it must be borne in mind that the extension of a
term of office, particularly one conferred by the Executive or by Parliament,
may be seen as a benefit. The judge or judges upon whom the benefit is
conferred may be seen as favoured by it. While it is true, as counsel for the
President emphasised, that the possibility of far-fetched perceptions should
 not dominate the interpretive process, it is not unreasonable for the public to
assume that extension may operate as a favour that may influence those judges
seeking it. The power of extension in section 176(1) must therefore, on general
principle, be construed so far as possible to minimise the risk that its conferral
could be seen as impairing the precious-won institutional attribute of
impartiality and the public confidence that goes with it.227

Although the Constitution specifically creates the office of the Chief

Justice and that of Deputy Chief Justice, this does not allow for an
extension of his or her term only. This is so because once appointed, the
Chief Justice and Deputy Chief Justice take their place alongside nine
other judges in constituting the membership of this Court. The
Constitution provides that a matter before the Constitutional Court:
must be heard by at least eight judges … Their high office and the extra-judicial
duties they may be called upon to perform add nothing to the tally … Nor does
their office count when this Court determines the cases and the matters before
it. Their views count and their voices are heard equally with the respect and
authority accorded every member of this Court.228

Section 176(1) of the Constitution therefore did not allow Parliament to

single out any individual Constitutional Court judge by name. It is also
plain that no individual may be singled out on the basis of an irrelevant
individual characteristic or feature. It follows that the term ‘a
Constitutional Court judge’ in section 176(1) does not permit singling
out any one Constitutional Court judge on the basis of his or her
individual identity or position in the Court. It also follows that in
exercising the power to extend the term of office of a Constitutional
Court judge, Parliament may not single out the Chief Justice.
It is important to note that the Court distinguished between section
8(a) and section 4 of the Judges’ Remuneration and Conditions of
Employment Act. It pointed out the amendment to section 8 differed
from section 4 of the Act as section 4:
does not allow any member of the category of Constitutional Court judge to be
singled out, whether on the basis of individual characteristic, idiosyncratic
feature or the incumbency of office. Age is an indifferent criterion that may be
applied in extending the term of office of a Constitutional Court judge. Age is
an attribute that everyone attains. Previous judicial service is another criterion
that may be indifferently applied to all the judges of this Court. The Act
 provides that a Constitutional Court judge whose 12-year term of office expires
before he or she has completed 15 years’ active service as a judge must, subject
to attaining the age of 75, serve for 15 years in this Court.229

Ordinary judges (in other words, judges who do not serve on the
Constitutional Court) hold office until they are discharged from active
service in terms of an Act of Parliament.230 Section 3(2) of the Judges’
Remuneration and Conditions of Employment Act regulates this matter.
This section states that other judges will normally hold office until the
date on which they attain the age of 70 years if they have on that date
completed a period of active service of not less than 10 years. If they
have on that date not yet completed a period of 10 years’ active service,
the term of office will end after serving for 10 years. However, judges
have a further discretion provided by section 4(4) of the Act. This
section allows a judge who on attaining the age of 70 years has not yet
completed 15 years’ active service to continue to perform active service
to the date on which he or she completes a period of 15 years’ active
service or attains the age of 75 years, whichever occurs first.
The requirement that the security of tenure of judges should be
guaranteed has another important consequence: judges should only be
removed from office as a last resort and then only for serious and
objectively determinable reasons. Thus, section 177 of the Constitution
determines that a judge may only be removed from office if the JSC
finds that the judge:
• suffers from an incapacity
• is grossly incompetent
• is guilty of gross misconduct.

Once the JSC has made such a finding, this is not the end of the matter
as the judge in question will only be removed from office if the NA calls
for that judge to be removed by a resolution adopted with a supporting
vote of at least two-thirds of its members. Once the NA has passed such
a resolution, the President must remove the judge from office. The
President has the power, on the advice of the JSC, to suspend a judge
who is the subject of an investigation by the JSC to remove him or her
from office.231 Section 177 of the Constitution ensures that a judge
cannot be arbitrarily removed from the bench for political or other
reasons unrelated to the ability of that judge to perform his or her
functions or the integrity of the judge.
The JSC Act determines the procedure to be followed by the JSC
when dealing with complaints against judges. A Judicial Conduct
Committee (a subcommittee of the JSC) is required to receive, consider
and deal with complaints against judges. The Judicial Conduct
Committee comprises the Chief Justice, who is the Chairperson of the
Committee, the Deputy Chief Justice and four judges, at least two of
whom must be women, designated by the Chief Justice in consultation
with the Minister.232 The Committee can deal with both serious
complaints, which may lead to the dismissal of a judge, or less serious
complaints which will not lead to the dismissal of a judge. However, a
lesser complaint can also be referred to the head of the court in which
the judge complained of serves.233
A complaint must be dismissed if it is not of a serious nature or is
solely related to the merits of a judgment or order, if it is frivolous or
lacking in substance, or if it is hypothetical.234 If the Chairperson of the
Conduct Committee is satisfied that in the event of a valid complaint
being established, it is likely to lead to a finding by the JSC that the
judge being accused suffers from an incapacity, is grossly incompetent
or is guilty of gross misconduct, the Chairperson must refer the
complaint to the Conduct Committee. The Committee must then
consider whether it should recommend to the JSC that the complaint
should be investigated and reported on by a Judicial Conduct Tribunal.
The Committee must also consider whether the complaint, if
established, will prima facie indicate incapacity, gross incompetence or
gross misconduct by the judge. Non-impeachable complaints can be
dealt with by the Committee without referral to the Tribunal which will
only be appointed in the case of impeachable offences.235
Impeachable offences must be referred to a Judicial Conduct
Tribunal, which consists of two judges, one of whom must be
designated by the Chief Justice as the Tribunal President, and one
layperson.236 The Tribunal will then, in effect, try the judge against
whom a serious complaint had been lodged: witnesses will be called
and those making the allegations as well as the judge being accused will
be cross-examined. The Tribunal will then make the appropriate
findings of fact, including the cogency and sufficiency of the evidence
and the demeanour and credibility of any witness, as well as its findings
as to the merits of the allegations in question. It will then submit a
report to the JSC.237 The JSC will decide whether to recommend
impeachment of the judge to the NA. When considering a complaint
against a judge, the JSC is obliged to decide the matter.

The duty of the JSC when considering

complaints against judges
In the case of Freedom Under Law v Acting
Chairperson: Judicial Service Commission and
Others,238 the SCA declared invalid a decision of the
JSC to dismiss a complaint lodged by the then judges
of the Constitutional Court against Judge President
John Hlophe. The SCA found that the JSC was required
to investigate serious complaints and could not
abdicate its constitutional duty to investigate the
complaint properly. Such an abdication in this case
was therefore unlawful and invalid.
The JSC had previously found that the evidence in
respect of the complaint by the Constitutional Court
against Judge President John Hlophe did not justify a
finding that the Judge President was guilty of gross
misconduct and that the matter accordingly be ‘treated
as finalised’.239 The JSC had assumed that because
there were two versions of what happened – one
presented by Hlophe and another presented by
Justices Jafta and Nkabinde of the Constitutional Court
– that cross-examination of the witnesses who
presented these conflicting versions would serve no
purpose. Hence, no further and proper investigation
was required. The JSC had thus decided that because
there were conflicting versions of events, they would
not judge the merits of the case at all. The SCA
rejected this argument, stating:
It cannot be in the interests of the judiciary, the legal system, the
country or the public to sweep the allegation under the carpet
because it is being denied by the accused judge, or because an
investigation will be expensive, or because the matter has
continued for a long time.240

The SCA therefore found that the decision not to

proceed with a full investigation was irrational.241
The problem for the JSC was that in the absence of
cross-examination of the witnesses, its finding and
reasons for the finding could not be justified. As the
SCA pointed out, the JSC had applied the criminal
standard applicable at the end of a criminal trial,
namely proof beyond reasonable doubt, to dismiss the
complaint at a stage when neither of the conflicting
versions of the judges accusing Judge President
Hlophe on the one hand and Hlophe JP on the other
hand had been tested by cross-examination. Although
the finding that it could not reject Hlophe JP’s version
was quite correct, this did not mean that no cross-
examination was required:
By disallowing cross-examination that result was made inevitable.
It would have been highly irregular to reject his evidence without
having given him an opportunity to cross-examine his accusers.
Utilising this procedure for the final resolution of a complaint of
misconduct by a judge will always lead to a dismissal of the
dispute where the conduct alleged by the accuser is disputed by
the judge because the judge’s version can never be rejected
without having given him an opportunity to cross-examine his
accusers. The procedure adopted was therefore not appropriate
for the final determination of the complaint.242

This case, read with the other SCA cases dealing with
the procedure to be followed by the JSC when
 appointing and disciplining judges, suggests that the
JSC does not only have an obligation to act rationally
when it makes these decisions. It also has a duty to
make some kind of decision and cannot decide not to
make a decision at all in cases where a decision is
required.

6.4.5 Financial security

The independence of the judiciary can be eroded if judges are not
secure in making decisions without fear, favour or prejudice. This
security can be threatened if judges are not financially secure and if
they believe they can be ‘punished’ (or if, in fact, they can be punished)
for making an unpopular decision by having their salaries and other
benefits reduced by the state. It is for this reason that the Constitution
states that the ‘salaries, allowances and benefits of judges may not be
reduced’.243 The conditions of service of judges are regulated by the
Judges’ Remuneration and Conditions of Employment Act. The Act
provides that a judge shall be paid a monthly salary to be determined
each year by the President by proclamation after taking into
consideration the recommendations of the Independent Commission
for the Remuneration of Public Office-bearers.244 A proclamation setting
out judges’ salaries must be submitted to Parliament after its
publication. Parliament may reject the proclamation or any provision of
it, the effect of which will be to make the proclamation invalid. To
emphasise that judges are not employees of the executive, judge’s
salaries are not included in the allocation of revenue to any government
department, but are paid directly from the state revenue fund.245

6.4.6 Limitation of civil liability

By its very nature, the job of a judge is to make judgments about people.
Such judgments – about the credibility of a witness or the guilt of an
accused – can fundamentally affect the status and dignity of an
individual. Such individuals wrongly impugned by a judge may
therefore wish to revert to the law of defamation to claim damages from
a judge who has impugned his or her reputation.
However, to carry out their functions, judges must be secure in the
knowledge that they will not incur civil liability for what they say or do
in the course of carrying out their duties.246 Thus, in Penrice v
Dickinson,247 the Court held that delictual damages will not be awarded
against a judicial officer, whether a judge or a magistrate, unless it is
shown that he or she acted with malice. This common law rule was
applied in May v Udwin 248 where it was held that a judicial officer can
raise the defence of qualified privilege to a defamation action.
A judge or magistrate will therefore be liable for defamatory
statements only if it can be proved that he or she made those statements
out of personal spite, ill will or an improper, unlawful or ulterior motive.
The reason for this rule is obvious. The judicial task would be made
impossible if a judge could be sued for defamation every time in the
course of giving judgment he or she expressed unfavourable views
about a litigant or made an adverse finding regarding the credibility of a
witness.249 Without protection from defamation suits, judges could be
exposed to endless litigation by disgruntled litigants, witnesses or
accused persons.
Before the adoption of the Superior Courts Act,250 section 25(1) of
the Supreme Court Act afforded Supreme Court judges a further
protection against defamation claims. The section prohibited the
issuing of a civil summons or subpoena against a judge without the
permission of the court out of which the process was to be served.251
Currie and de Waal speculate that the reason why it was thought that
this permission was needed may have been to protect judges from
becoming the victims of frivolous proceedings or to prevent the
disruption of the work of the court.252
A similar process was required in the case of judges of the
Constitutional Court. The Supreme Court Act prohibited any civil
proceedings from being instituted against or subpoena issued for the
Chief Justice or other judges of the Constitutional Court without the
consent of the Chief Justice. Again, where consent had been obtained,
the date on which the judge was to appear had to be determined in
consultation with the Chief Justice (in matters involving the President)
or the President of the Court (in matters involving the other judges).253
Similar provisions did not find their way into the Superior Courts Act.

6.4.7 Office of the Chief Justice

The Constitution expressly provides that the Chief Justice is the Head of
the Judiciary and entrusts the Chief Justice with the responsibility for
the establishment and monitoring of Norms and Standards for the
performance of judicial functions in all Courts.254 In this capacity, the
Chief Justice must fulfil various administrative tasks and successive
Chief Justices have had to rely in large measure on support from the
executive to enable them to do so. This raised concerns about the
independence of the judiciary, as judicial independence requires a
strict separation of powers and functions between the executive and
judicial branches of government. In order to address this problem the
process was started in 2010 to create a truly independent Office of the
Chief Justice – similar to the office of the Auditor-General. In 2010 the
Office of the Chief Justice was proclaimed a National Department in
terms of the Public Service Act.255 The Superior Courts Act256 of 2013
further enhanced the independence of the Office of the Chief Justice by
setting out the powers of the Chief Justice as the head of the judiciary257
and by providing for the appointment of a Secretary-General as head of
the Office of the Chief Justice. In 2015 the Minister of Public Service and
Administration transferred the functions relating to the administration
of the Superior Courts from the Department of Justice to the Office of
the Chief Justice.258 This means that there is now a more decisive
separation between the executive – in the form of the Department of
Justice – and the superior courts in South Africa.

6.5 Independence of the lower courts and traditional

courts

6.5.1 The lower courts under the interim Constitution

Before 1993, the magistrates’ courts in South Africa enjoyed little if any
independence. In fact, judicial officers in lower courts had the status of
ordinary public servants.259 Magistrates and regional magistrates were
employees of the Department of Justice and were usually promoted
from the ranks of public prosecutors once they had passed the relevant
examinations.260 As Currie and De Waal point out, like other public
servants, magistrates were subject to the disciplinary measures
contained in the Public Service Act.261 Following a departmental
enquiry, they could be demoted or discharged on grounds of
misconduct or inefficiency.262 These factors exposed magistrates to
being influenced by the executive and cast suspicion on their
independence. This close relationship between magistrates and the
executive was seen as incompatible with the doctrine of separation of
powers.
The 1983 Hoexter Commission of Inquiry recommended legislative
steps designed to shore up the independence of magistrates and to
reduce the possibility of influence or control by the executive.263 The
independence of the magistrates’ courts was then enhanced by the
adoption in 1993 by the last apartheid Parliament of the Magistrates
Act.264 The Act removed magistrates from the ambit of the public service
and created a Magistrates Commission to deal with the conditions of
service, appointment and dismissal of magistrates. The Magistrates Act
was passed prior to the adoption of the interim Constitution ‘at a time
when the great majority of the population of this country had no
representation in Parliament’ and when the ‘power to appoint judges
and magistrates was then vested in the executive’.265 The Magistrates Act
gave the Magistrates Commission an advisory function in the
appointment of magistrates, but there was no obligation on the
executive to consult any person or institution in respect of the
appointment of judges. The Magistrates Commission was not a
representative body and all but two of its members were designated by
bodies controlled by white judicial officers and lawyers. The existence
and functions of the Magistrates Commission were then
constitutionalised by section 109 of the interim Constitution. According
to section 109, the Commission had ‘to ensure that the appointment,
promotion, transfer or dismissal of, or disciplinary steps against
magistrates, take place without favour or prejudice … and to ensure that
no victimization or improper influencing of magistrates occurs’.

6.5.2 Independence of the lower courts under the 1996

Constitution
The 1996 Constitution vests judicial authority in the courts which,
according to section 166(d), includes the magistrates’ courts. Section
174(7) of the Constitution governs the appointment of magistrates. This
section requires an Act of Parliament to be passed to ‘ensure that the
appointment, promotion, transfer or dismissal of, or disciplinary steps
against, these judicial officers take place without favour or prejudice’.
The 1996 Constitution does not explicitly mention that a Magistrates
Commission should fulfil this task.
During the certification proceedings objection was made to the fact
that there was no provision in the 1996 Constitution for a similar
Magistrates Commission. There were also no express provisions
governing the appointment, term of office, remuneration and removal
from office of magistrates. The Constitutional Court held that it was
sufficient that section 165 guaranteed the independence of the courts.
The Act of Parliament governing the appointment of magistrates
referred to in section 174(7) is subject to constitutional control. If the
Act undermines the independence and impartiality of the courts
specifically protected by section 165, it will not be valid.266
In 1996, changes were made to the composition of the Magistrates
Commission. The change in the composition of the Magistrates
Commission effected by the 1996 amendment brought the composition
of that Commission closer to that of the JSC.267 The Constitution itself
recognises the JSC as a body appropriately constituted for the purpose
of matters concerned with the appointment and impeachment of
judges.268
The Constitutional Court held in the Van Rooyen case that the
changes made in 1996 are consistent with and reflect the change that
has taken place in our country since 1993 – a transformation required
by the Constitution itself:
The Magistrates Commission is now more broadly representative of South
African society as a whole. This was important particularly at this stage of our
history. The overwhelming majority of the population is black and at least half
the population is female. Yet the great majority of the legal profession and
senior judicial officers are still white and male. In the light of our history and
the commitment made in the Constitution to transform our society, these
racial and gender disparities cannot be ignored. The recomposition of the
Magistrates Commission viewed thus by an objective observer, could not fairly
be seen as an attempt to exert executive control over the magistracy. There was
a pressing need for the racial and gender disparities within the Commission to
be changed, and for the Commission to be re-composed so as to become more
representative of South African society. The changes made facilitated this, and
that would have been understood by an objective observer taking a balanced
view of all the relevant circumstances.269

Currently, the Commission consists of a judge, six magistrates, four

legal practitioners, a teacher of law, eight Members of Parliament and
five nominees of the executive. In addition, the Minister and the head of
Justice College are members of the Commission.270 According to the
Constitutional Court:
[o]n its face this is a diverse body of persons, nearly half of whom consist of
members of the judiciary and the legal profession. The rest are nominees of
Parliament and the executive. To some extent this is similar to the composition
of the Judicial Service Commission which has a central role in the appointment
of judges and the composition of which is dealt with in the Constitution
itself.271

In practice, the Commission does not conduct interviews but compiles

a list of appointees who have undergone the required training and
passed the examinations. The appointees are drawn from the ranks of
public prosecutors. The same Commission that determines the salaries
of judges also determines the remuneration of magistrates.

6.5.3 Independence of traditional courts

As the South African Law Commission (SALC) pointed out in its Report
on Traditional Courts,272 the administration of justice in rural South
Africa is predominantly carried out by chiefs’ courts. These courts
administer justice largely on the basis of customary law and on the
basis of authority granted by several apartheid-era laws.273 Traditional
courts gain their authority from sections 12 and 20 of the Black
Administration Act (BAA),274 read with section 16 of Schedule 6 of the
Constitution.275 This is seemingly authorised by Chapter 12 of the
Constitution which requires the law to recognise the ‘institution, status
and role of traditional leadership according to customary law’, but
subject to other provisions in the Constitution.276 The Constitution
allows national legislation further to provide for this role.277 It is
surprising that traditional courts are still regulated by the BAA while
most other provisions of this Act have been scrapped. The BAA has been
described by the Constitutional Court as ‘an egregious apartheid law
which anachronistically has survived our transition to a non-racial
democracy’.278
The relevant sections of the BAA that apply here and are still in
operation empower the Minister to confer civil and criminal
jurisdiction on chiefs, headmen or chiefs’ deputies. The BAA does not
prescribe any hierarchy of customary courts and neither does it provide
for appeals from the headman’s court to a chief’s court.279 According to
the SALC, in many traditional communities the practice is that claims or
complaints start at the level of the family council. If a matter is not
resolved at that level, it is taken to the headman who, together with his
advisers, attempts to dispose of the matter. If it is still not resolved, the
matter is taken on appeal to the chief. It is from the chief’s court that the
case is normally appealed to the magistrates’ court.280 As we have noted
in a previous chapter, chiefs are not elected but obtain their positions
on a hereditary basis.281
The BAA does not prescribe the composition of the chiefs’ or
customary courts. The Act merely provides for the conferment of
jurisdiction on a chief, headman or chief’s deputy to hear civil matters
and to try certain criminal matters.282 However, under customary law,
the court formally consists of the chief and his councillors or the
headman and his advisers (the chief or headman will very seldom be
female). In most cases, the chief will not normally preside over the
proceedings. Instead, a trusted councillor will be appointed to
preside.283 This situation differs from community to community. The
flexible nature of customary law, along with its ability to develop to
adapt to changing circumstances, means that it is not possible to
identify a unified system according to which traditional courts operate.
However, the Centre for Law and Society summarises the nature of
traditional courts in South Africa as follows:
Firstly, customary courts are non-professional institutions. They are
community forums in which mature members of the community participate.
Community members are therefore able to participate freely in their
functioning, although women were traditionally excluded from participating in
customary courts. The notion of a presiding officer who acts as a judge and is
the single decision maker has no real place in these forums, as they are shared
consultative spaces in which all present can participate in the hearing,
questioning, deliberation and decision … The inconsistence between different
communities (even within a single cultural group or locality) with regard to the
extent of the chief’s participation in the court - ranging from non-participation
to active participation - makes the notion of a `presiding officer’, taken from the
western court systems, an untenable notion to adopt and impose on all
communities. We know that even if a figure akin to a presiding officer exists in
some communities, when it comes to formulating and pronouncing decision,
he is generally bound by what the council and/or community has found in
hearing that case.284

Because traditional leaders are also involved in the exercise of

legislative and executive powers, it has been argued that traditional
courts cannot be independent as required by the Constitution.
However, different High Courts have reached different conclusions on
this matter 285 and the Constitutional Court has not given its opinion on
whether a system of traditional courts can be squared with the
requirements of judicial independence.
We contend that it would be difficult to answer this question in the
abstract as different customary courts operate differently and deal
differently with disputes. Bennett also argues that a distinction should
be drawn between traditional courts dealing with criminal matters and
traditional courts dealing with civil matters. The requirements for
independence would not arise as sharply in civil matters as in criminal
matters where the presiding officer could also be the complainant,
prosecutor and judge. Moreover, the question of whether traditional
courts are compatible with the Constitution should be weighed against
considerations of access to justice as those traditional courts that work
well, provide immediate and effective access to justice for many citizens
living in rural areas. Thus, argues Bennett, traditional courts should
retain their civil jurisdiction, while not being awarded jurisdiction to try
criminal matters.286

6.6 The National Prosecuting Authority

At the time when the 1996 Constitution was being negotiated, many of
the personnel in the prosecuting authority appointed during the
apartheid era remained in their positions and there was a strong
perception among ANC leaders that a fair number of these ‘old guard’
appointees opposed the ANC government and would subtly or not so
subtly use their power as bureaucrats or other state officials to
undermine the new government. It is for this reason that the
legislation287 passed in the dying days of apartheid to entrench the
powers of the attorneys-general vis-à-vis the executive was viewed with
suspicion by ANC leaders who ‘regarded it as an attempt by the old
order prosecutors to protect their entrenched positions’.288 In terms of
this legislation, prosecutors and attorneys-general could exercise their
discretion to institute criminal proceedings without any fear of control
or interference from the executive.289 The independence of the
attorneys-general was further enhanced by the guaranteed
remuneration for the attorneys-general290 and their security of tenure of
office.291 Because the ANC feared that these apartheid era attorneys-
general and prosecutors would abuse their prosecutorial power, its
negotiators insisted on the inclusion of a detailed clause into the 1996
Constitution to provide for the establishment of unified prosecuting
authority.
Section 179 of the 1996 Constitution thus creates a single national
prosecuting authority (the NPA) consisting of a National Director of
Public Prosecutions (NDPP), who is head of the prosecuting authority.
The creation of the National Director of Public Prosecutions by the
South African Constitution for the first time established an office that
has the overall power to direct the prosecutions throughout the country.
Technically, the prosecuting authority is still exercised by provincially
based Directors of Public Prosecutions (DPP), who replaced the old
attorneys-general, in their areas of jurisdiction and DPPs continue to
delegate their authority to local prosecutors.292 However, the Deputy
National Directors of Public Prosecutions have concurrent country-
wide prosecutorial jurisdiction. Moreover, both the Deputy National
Directors of Public Prosecutions and the Directors of Public
Prosecutions are subject to the control and directions of the NDPP293
who may intervene in a prosecution process when policy directives are
not complied with.294 Moreover, section 22(1) of the National
Prosecuting Authority Act (NPA Act) provides that:
the National Director, as the head of the prosecuting authority, shall have
authority over the exercising of all the powers, and the performance of all the
duties and functions conferred or imposed on or assigned to any member of
the prosecuting authority by the Constitution, this Act or any other law.

The powers of the National Director spelt out in the Act follow very
closely the relatively detailed requirements of section 179 of the
Constitution. Crucial in this respect is the requirement that the National
Director must, with the concurrence of the Minister of Justice and after
consulting the provincial Directors of Public Prosecutions, determine
prosecution policy.295 Because the wording state that there must be
concurrence between the NDPP and the Minister, this means that the
NDPP requires the approval of the Minister before the prosecution
policy can be promulgated, which means that the Minister can veto
policy proposals of the National Director.296 In practice, the requirement
that the Minister must consent to the prosecution policy has not played
a significant role in the debate about the independence of the NPA. This
is because the NPA’s Prosecution Policy297 contains general principles
which are relatively open-ended and thus do not provide very strict
guidelines for prosecutors when deciding when to prosecute and when
not to prosecute.298 As is the case with most prosecution policies
applicable to prosecuting agencies in functioning democracies the
policy includes provisions permitting and regulating prosecutors’
discretion, encompassing an evidential and a public interest test along
similar lines.299
As noted, the NDPP has the power to intervene in any prosecution
where his policy directives have not been followed. This power should
be read with the further power to review a decision to prosecute or not
to prosecute after consulting the relevant Director and ‘after taking
representations … of the accused person, the complainant and any
other person or party whom the National Director considers to be
relevant’.300 This means that the NDPP can intervene in two distinct
situations: first where policy directives are not followed and second,
even where policy directives are complied with. In effect the NDPP
therefore has a broad and sweeping discretion to review a decision by
any prosecutor to prosecute or not to prosecute an accused. This is the
power the acting NDPP exercised when he decided to discontinue the
prosecution of President Jacob Zuma. Although the power is weeping it
is somewhat limited as it is restricted to a review of decisions on
whether to prosecute or not and would not include a direct intervention
in the way a case is presented in court.301 The Constitution and the NPA
Act also impose procedural requirements for the exercise of the power
as it could also not be exercised without the National Director taking
representations from all the prescribed parties. Where such
requirements are not met, a court can review and set aside a decision
not to prosecute, and the effect will normally be ‘that the charges and
the proceedings are automatically reinstated and it is for the executive
authorities to deal with them’. 302
It therefore appears that the NDPP has extraordinary powers. As the
Constitutional Court noted the powers and duties of the NDPP ‘are
extensive and their proper exercise and performance is crucial to the
attainment of criminal justice in our country’.303 The erosion of the
independence of the NPA would therefore pose real risk for the
democracy. As the Constitutional Court stated in Corruption Watch
NPC and Others v President of the Republic of South Africa and Others;
Nxasana v Corruption Watch NPC and Others:
With a malleable, corrupt or dysfunctional prosecuting authority, many
criminals – especially those holding positions of influence – will rarely, if ever,
 answer for their criminal deeds. Equally, functionaries within that prosecuting
authority may … be pressured … into pursuing prosecutions to advance a
political agenda. All this is antithetical to the rule of law, a founding value of the
Republic. Also, malleability, corruption and dysfunctionality are at odds with
the constitutional injunction of prosecuting without fear, favour or
prejudice.304

Despite this clear and emphatic affirmation of the independence of the

NPA, in the past, there has been considerable confusion and
disagreement about the nature of the independence of the NPA
established by section 179. This is because the Constitution on the one
hand vests the prosecutorial responsibility in the NPA while, on the
other, it provides that the Minister must exercise final responsibility
over it. As the Supreme Court of Appeal (SCA) noted:305
These provisions may appear to conflict but, as the Namibian Supreme Court
held in relation to comparable provisions in its Constitution, they are not
incompatible. It held (I am using terms that conform with our Constitution)
that although the Minister may not instruct the NPA to prosecute or to decline
to prosecute or to terminate a pending prosecution, the Minister is entitled to
be kept informed in respect of all prosecutions initiated or to be initiated which
might arouse public interest or involve important aspects of legal or
prosecutorial authority.306

To understand the nature of the independence of the NPA envisaged by

the Constitutional Court and by the SCA, the following provisions and
requirements have to be taken into account: first, the provision of the
National Prosecuting Authority Act that give effect to section 179 and,
especially, those relating to the appointment of the NDPP and other
National Directors; second, the requirement that national legislation
must ensure that the prosecuting authority exercises its functions
without fear, favour or prejudice; and, third, the requirements that the
Minister of Justice must exercise final responsibility over the
prosecuting authority.
The Act requires members of the prosecuting authority to serve
‘impartially’ and exercise, carry out or perform their powers, duties and
functions ‘in good faith and without fear, favour or prejudice’ and
subject only to the Constitution and the law.307 The Act also prohibits
anyone from interfering ‘improperly’ with the NPA in the performance
of its duties and functions308 and anyone who does interfere is guilty of
an offence and liable on conviction to a fine or to imprisonment for a
period not exceeding 10 years or to both.309 The Act also operationalises
the requirement that the Minister of Justice must exercise final
responsibility over the NPA310 by stating that the National Director is
obliged, at the request of the Minister, to furnish the latter with
information or a report with regard to any case and to provide the
Minister with reasons for any decision taken.311 As Woolaver and Bishop
have pointed out:
Therefore, the Minister’s powers of oversight are confined to those included in
the Act. As already discussed, these include the requirement that the Minister
approve prosecution policy, and various duties on the NDPP to provide
information and submit reports to the Minister. The Act gives no power to the
Minister regarding the exercise of prosecutorial discretion in individual cases.
As such, individual decisions regarding whether or not to prosecute in a
particular case are not within the purview of the Minister’s ‘final responsibility’.
These rest in the exclusive discretion of the prosecuting authority, and
ultimately the National Director.312

The Act thus envisages (and this has been confirmed by the SCA as an
‘non-contentious’) ‘that the NPA must not be led by political
considerations and that ministerial responsibility over the NPA does not
imply a right to interfere with a decision to prosecute’.313 This view of the
NDPP was confirmed by the Constitutional Court who stated that the
NPA ‘must be non-political and non-partisan and is closely related to
the function of the judiciary broadly to achieve justice and is located at
the core of delivering criminal justice’.314
The President has a wide discretion when he or she appoints the
NDPP and other Directors of Public Prosecution. The only limitation on
the exercise of this power is that the persons appointed must ‘possess
legal qualifications that would entitle him or her to practise in all courts
in the Republic;’ and ‘be a fit and proper person, with due regard to his
or her experience, conscientiousness and integrity, to be entrusted with
the responsibilities of the office concerned’. Furthermore, the National
Director must be a South African citizen and the President must first
consult the Minister of Justice before appointing Deputy National
Directors and Directors. The National Director is appointed for a non-
renewable term of 10 years. The power of the President to appoint the
NDPP was challenged during the certification of the final Constitution
on the grounds that it did not comply with Constitutional Principle VI
which required a separation of powers between the Legislature,
Executive and Judiciary with appropriate checks and balances to ensure
accountability responsiveness and openness.315 In the First Certification
judgment, the Constitutional Court rejected this argument but
confirmed that section 179 establishes the independence of the NPA in
the following terms:
[Section] 179(4) provides that the national legislation must ensure that the
prosecuting authority exercises its functions without fear, favour or prejudice.
There is accordingly a constitutional guarantee of independence, and any
legislation or executive action inconsistent therewith would be subject to
constitutional control by the courts. In the circumstances, the objection to
[section] 179 must be rejected.316

Is it appropriate that the President appoints

the National Director of Public Prosecutions?
During constitutional negotiations the drafters of the
Constitution rejected the idea that the NDPP be
selected by the JSC and then appointed by the
President. The appointment of the NDPP is therefore
the sole prerogative of the President in terms of section
179(1) of the Constitution. As the National Association
of Democratic Lawyers (NADEL) pointed out in a press
statement, there ‘is nothing in the Constitution or the
National Prosecuting Act 32 of 1998 that actually
precludes the President from appointing a National
Director that would make decisions in his political
favour when making prosecutorial decisions’.317 This
has led some commentators to argue that it is
inappropriate for the President to appoint the NDPP. In
fact, in the First Certification case it was argued that it
was inappropriate for the Director of Public
Prosecutions to be appointed by the President as head
of the national executive.318 The argument was
therefore advanced that it was inappropriate for the
President to appoint the NDPP because it would
intrude on the separation between the executive and
the judiciary. The Constitutional Court rejected this
contention, noting that ‘the mere fact that the
appointment of the head of the national prosecuting
authority is made by the President does not in itself
contravene the doctrine of separation of powers’.319
However, the potential problem with the President’s
power to appoint the NDPP was highlighted by the
situation that arose when the High Court declared
invalid the appointment of the incumbent NDPP, Adv
Shaun Abrahams in Corruption Watch (RF) NPC and
Another v President of the Republic of South Africa and
Others; Council for the Advancement of the South
African Constitution v President of the Republic of
South Africa and Others.320 The applicants in that case
had argued that then President Jacob Zuma was
disqualified from appointing a new NDPP because he
was conflicted. This is so, they argued, because the
former President was facing a host of criminal charges
against him, and therefore had a personal interest in
appointing a new NDPP, the very NDPP who, at the
time, would have to make a final decision on whether
or not again to charge the President. The High Court
agreed with this argument as follows:
In a rights-based order it is fundamental that a conflicted person
cannot act; to act despite a conflict is self-evidently to pervert the
rights being exercised as well as the rights of those affected … In
our view President Zuma would be clearly conflicted in having to
appoint a NDPP … particularly the ever-present spectre of the
many criminal charges against him that have not gone away.321
 The court held that because of this conflict of interest,
the President was ‘unable’ to act. As section 90(1)(a)
of the Constitution states that when the President is
‘unable to fulfil the duties of President the Deputy
President acts as President, the court held “that, as
long as the incumbent President is in office, the
Deputy President is responsible for decisions relating
to the appointment, suspension or removal of the
NDPP’”.322 By the time the case reached the
Constitutional Court Zuma was no longer President of
the country and it was therefore unnecessary for that
court to deal with the matter of a conflict of interest.
Should we assume that the conflict of interest that
arose in the Corruption Watch case was extraordinary
and that there is no need to amend the procedure for
the appointment of the NDPP? Or should we assume
that the appointment of the NDPP by the President will
always raise questions of conflict of interest as the
President will have to choose between his or her loyalty
to members of his or her political party on the one
hand, and his or her loyalty to the Constitution on the
other? If you agree that the present mechanism of
appointment is inappropriate, would it be appropriate
for the JSC to nominate the NDPP, given the fact that
the JSC was created to deal with judicial and not
prosecutorial matters?

The independence and impartiality of the NDPP do not only depend on

who is appointed in that position. As we have seen above when
discussing the independence of the judiciary, independence requires
special rules to protect the security of tenure of an incumbent. If the
NDPP could easily be removed from office, it may place pressure on
him or her to avoid making controversial and politically unpopular
prosecutorial decisions. The NPA Act therefore includes special
provisions for the removal of the NDPP. The Act does allow the
President to remove the NDPP or a Director but only after an inquiry
into his or her fitness to hold office is held. The President has an
absolute discretion on whom to appoint to head the inquiry and to
determine its terms of reference, with the proviso that the NDPP and
any Director can only be removed from office:
• for misconduct
• on account of continued ill-health
• on account of incapacity to carry out his or her duties of office
efficiently
• on account thereof that he or she is no longer a fit and proper
person to hold the office concerned.323

Because the President selects who chairs the inquiry, there is a risk that
the inquiry will not be as impartial and non-political as it should be.
This raises the question of whether the NDPP enjoys sufficient security
of tenure or whether the prescribed process for the removal of the
NDPP from office does not open the door to political interference. This
concern may be heightened by the fact that the President is also
empowered provisionally to suspend the National Director or a Deputy
National Director from his or her office, pending an enquiry into his or
her fitness to hold office.324 This provision could be used to place
pressure on the NDPP to resign or to be persuaded to accept a golden
handshake.
After the inquiry is concluded, the President has a discretion to
remove the NDPP or a Director from office. Once the President has
removed the NDPP or Director from office, Parliament must, within 30
days after being informed of the removal, pass a resolution either
confirming the removal of or reinstating the NDPP.325 The President is
also required to remove the NDPP or any Director from office on the
grounds listed above if requested to do so by both Houses of
Parliament.326 Since the creation of the position of NDPP, six different
individuals have served in a permanent capacity as NDPP and not a
single NDPP has completed his or her 10-year term. Because the NDPP
has such extraordinary power, it is inevitable that politicians and
politically connected businesspeople who wish to protect themselves
from prosecution for corruption and other crimes, would attempt to
ensure that the NDPP remains sympathetic to them. When the NDPP
becomes ‘too independent’ and ‘too fearless’, he or she may well come
under political pressure and runs the risk of either being coaxed out of
office by a golden handshake, or of facing removal through the process
described above. The question therefore arises whether the current
provisions in the NPA Act provide sufficient guarantees to safeguard the
security of tenure of the NDPP.

Removal through payment of a golden

handshake
In Corruption Watch NPC and Others v President of the
Republic of South Africa and Others; Nxasana v
Corruption Watch NPC and Others327 the Constitutional
Court had to consider whether former President Jacob
Zuma had acted unlawfully when he offered Mxolisi
Nxasana (the then NDPP) a golden handshake in order
to persuade him to vacate his office. Section 12(8) of
the NPA Act provides for the NDPP voluntary to vacate
his or her office,328 but it is made clear that the
decision to vacate must be truly voluntary as the
independence of the NDDP would be compromised if
he or she is pressured into stepping down ‘voluntary’.
As the Constitutional Court held: ‘Any act or conduct
that purports to be a voluntary vacation of office but
which compromises or has the potential to
compromise the independence of the NDPP is
constitutionally invalid.’329 The court pointed out that
former President Zuma was eager to get rid of Mr
Nxasana ‘by whatever means he could muster’,
describing the process as follows:
There was first the notification that Mr Nxasana would be
subjected to an inquiry with a view to establishing whether he was
still a fit and proper person to hold office. Concomitantly, there
was a threat of suspension pending finalisation of the inquiry,
albeit with full pay. This was followed by former President Zuma’s
proposal that there be mediation. When there was no progress on
this, the inquiry was instituted. Whilst the inquiry was in its
preliminary stages, the former President pursued a parallel
process in which Mr Nxasana was first offered – in a draft
settlement agreement – R10 million. As indicated earlier, he did
not accept it. What plainly evinces how desperate former
President Zuma was to get rid of Mr Nxasana is that this was
followed by a draft settlement in which the amount was left blank.
Mr Nxasana was being told to pick whatever figure. Indeed, Mr
Hulley said that he would ‘await the final amount’ from Mr
Nxasana.

I am not suggesting that the former President would have

accepted any amount Mr Nxasana inserted. All I am saying is that
the very idea that former President Zuma was willing, at least, to
consider whatever amount Mr Nxasana inserted speaks volumes.
To be more direct, it lends credence to the view that he wanted to
get rid of Mr Nxasana at all costs. If that were not the case, why
else would he have given Mr Nxasana an opportunity to insert an
amount of his liking? After all, this all started because former
President Zuma overtly made all and sundry believe that he had a
basis for holding a view that Mr Nxasana was no longer fit for
office. It must have been a matter of relative ease, therefore, to
pursue the inquiry instead of offering Mr Nxasana what – by all
accounts – was an extremely huge sum of money. In its judgment
the High Court notes that before it the parties were agreed that
the amount of R17.3 million ‘far exceeded what Mr Nxasana’s
financial entitlement would have been had his office been lawfully
vacated in terms of section 12(8)(a)(ii) of the NPA Act’.

Instead of settling for so huge an amount, why did the former

President not simply pursue the inquiry? Did he not believe that
the evidence that had motivated him to come up with the idea of
an inquiry was sufficiently cogent? If so, why did he not just
abandon the inquiry and leave Mr Nxasana in office? After all, he
was exercising powers as President and not involved in a personal
dispute which he could settle as he pleased. It is difficult to
comprehend why he would have settled on so huge an amount,
and from public coffers to boot.

The inference is inescapable that the former President

was effectively buying Mr Nxasana out of office. In my
book, conduct of that nature compromises the
independence of the office of NDPP. It conduces to the
 removal of ‘troublesome’ or otherwise unwanted NDPPs
through buying them out of office by offering them
obscenely huge amounts of money. 330
The Corruption Watch judgment illustrates, first, that
the independence of an office like that of the NDPP
can be eroded in many ways. In this case, the
President attempted to avoid using the formal
prescribed procedures for removing the NDPP from
office, instead using both carrot and stick to try and
get Mr Nxasana to resign. Second, it illustrates that the
Constitutional Court is alert to such informal attempts
to subvert the independence of the NPA and that it will
be willing to intervene when requested to do so.

SUMMARY

The judiciary is the third, but distinct and most independent, branch of
government within the system of separation of powers.
At the pinnacle of the superior courts is the Constitutional Court
which now has the jurisdiction not only to hear any constitutional
matter, but also any other matter that raises an arguable point of law of
general importance which, in the opinion of the Constitutional Court,
ought to be considered by it. The Constitutional Court ordinarily acts as
a court of appeal, considering constitutional and other matters of legal
doctrine on appeal from any of the High Courts or from the Supreme
Court of Appeal (SCA). However, when a High Court declares invalid
provisions of an Act of Parliament, the provisions of a provincial
legislature or an act of the President, the matter automatically goes to
the Constitutional Court which is required to confirm the order of
invalidity before such an order has any force.
In addition, the Constitutional Court has exclusive jurisdiction to
decide:
• on disputes between organs of state in the national or provincial
sphere concerning the constitutional status, powers or functions of
 any of those organs of state
• on the constitutionality of any parliamentary or provincial Bill
• on the constitutionality of Bills referred to it by the NA or provincial
legislatures
• on the constitutionality of any amendment to the Constitution
• that Parliament or the President has failed to fulfil a constitutional
obligation or to certify a provincial constitution.

The SCA is an appeal court that can hear appeals from High Courts on
any matter except matters exclusively reserved for the Constitutional
Court. The SCA is the final court on matters relating to findings of fact
and to the application of facts to law. The High Courts can hear
constitutional matters, except those matters exclusively reserved for the
Constitutional Court, and often sit as courts of first instance.
The judiciary (and, in South Africa, most pertinently the superior
courts,) is tasked with interpreting and enforcing the Constitution and
thus as acting as the referee to ensure that members of the other
branches of government act in accordance with the Constitution. It is
therefore important that special safeguards are put in place to secure its
independence. During the apartheid era, the independence of the
judiciary was not adequately guaranteed. With the advent of
democracy, the Constitution created additional mechanisms to
safeguard the independence of the judiciary.
The Judicial Service Commission (JSC), composed of a combination
of lawyers, judges and politicians, now plays an important role in the
appointment of all superior court judges. When the President appoints
the Chief Justice or Deputy Chief Justice and the President and Deputy
President of the SCA, this role of the JSC is only advisory. With all other
High Court judges, the JSC selects the appointees who are then merely
formally appointed by the President. There is much controversy about
the criteria for the appointment of judges, but the need for the judiciary
to reflect broadly the racial and gender composition of South Africa
does play a pivotal role in the consideration of suitable candidates for
appointment.
 Apart from the appointment of impartial and independent judicial
officers, the independence of the judiciary is formally guaranteed by
requiring judges to take an oath of office, by safeguarding the security of
tenure of judges, by protecting the financial security of judges and by
limiting the civil liability of judges. Lower courts and traditional courts
are less independent but it is assumed that the superior courts will
protect these courts and will ensure that their decisions comply with the
requisite impartiality and independence.
The National Prosecuting Authority (NPA) is neither part of
government nor of the judiciary but it does play a pivotal role in the
operation of the criminal justice system as it is tasked with making
decisions on the prosecution of criminal suspects. The NPA has a duty
to act without fear, favour or prejudice. This means that it must act
independently from the government of the day although it is legally and
constitutionally required to report to the Minister of Justice on its
activities and decisions. The NPA is headed by the National Director of
Public Prosecutions (NDPP) whose independence is safeguarded by the
NPA Act. The President appoints the NDPP but the appointee must
comply with the objective criteria set out in the NPA Act.

1 For a discussion of the role of the judiciary during apartheid, see Forsyth, CF (1985) In
Danger for Their Talents: A Study of the Appellate Division of the Supreme Court of South
Africa from 1950–1980; Dyzenhaus, D (1991) Hard Cases in Wicked Legal Systems: South
African Law in the Perspective of Legal Philosophy; Ellmann, SJ (1992) In a Time of Trouble:
Law and Liberty in South Africa’s State of Emergency.
2 Mtshaulana, PM ‘The history and role of the Constitutional Court in South Africa’ in
Andrews, P and Ellmann, S (2001) The Post-Apartheid Constitutions: Perspectives on South
Africa’s Basic Law 526.
3 See Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 225–30. See also
Dugard, J (1978) Human Rights and the South African Legal Order.
4 Klug (2010) 226. See generally Haysom, N and Kahanovitz, S ‘Courts and the State of
Emergency’ in Moss, G and Obery, I (eds) (1987) South African Review 4 192.
5 See Basson, D (1987) Judicial activism in a State of Emergency: An examination of recent
decisions of the South African courts South African Journal on Human Rights 3(1):28–43 at
28.
6 See Madala, T (2001) Rule under apartheid and the fledgling democracy in post-apartheid
South Africa: The role of the judiciary North Carolina Journal of International Law and
Commercial Regulation 26(3):743–65 at 748. See also Azanian Peoples Organization
(AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96)
[1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) para 1 where
 Mahommed states: ‘The legitimacy of law itself was deeply wounded as the country
haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise
the entire nation.’
7 Ellmann, S (1995) Law and legitimacy in South Africa Law and Social Inquiry 20(2):407–79
at 425.
8 Ellmann (1995) 409.
9 See Madala (2001) 745.
10 See Madala (2001) 748; Higginbotham, FM (1994) Sins from the past and lessons for the
future: Eliminating apartheid in South African public accommodation and the challenge to
an enlightened judiciary Boston University International Law Journal 12(1):1–56 at 1.
11 See the report by Gordon, A and Bruce, D (2006) Transformation and independence of the
judiciary in South Africa, Centre for Study of Violence and Reconciliation (CSVR) 1–61 at
11.
12 See Dyzenhaus, D (1998) Judging the Judges, Judging Ourselves: Truth, Reconciliation and
the Apartheid Legal Order 16, quoted in Gordon and Bruce (2006), indicating that this
approach means that the ‘judges hold that the judiciary duty when interpreting a statute is
always to look to those parts of public record that make clear what the legislators as a
matter of fact intended [and] in this way, the judges merely determined the law as it is,
without permitting their substantive convictions about justice to interfere’.
13 See Dugard (1978) 369.
14 See Govindjee, A and Olivier, M ‘Finding the boundary: The role of the courts in giving
effect to socio-economic rights in South Africa’ in Osode, PC and Glover, G (eds) (2010)
Law and Transformative Justice in Post-Apartheid South Africa 79.
15 Corder, H (2004) Judicial authority in a changing South Africa Legal Studies 24(2):253–74 at
255.
16 See S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3)
SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 301 where Mokgoro J
stated that:
… due to the sovereignty of parliament, the supremacy of legislation and the
absence of judicial review of parliamentary statutes, courts engaged in simple
statutory interpretation, giving effect to the clear and unambiguous language of the
legislative text – no matter how unjust the legislative provision.
17 See Gordon and Bruce (2006) 11.
18 See Wesson, M and Du Plessis, M (2008) Fifteen years on: Central issues relating to the
transformation of the South African judiciary South African Journal on Human Rights
24(2):187–213 at 190.
19 Act 59 of 1959.
20 Wesson and Du Plessis (2008) 190.
21 Wesson and Du Plessis (2008) 190. See also Cameron, E (1982) Legal chauvinism,
executive-mindedness and justice – LC Steyn’s impact on South African law South African
Law Journal 99(1):38–75 at 40, detailing the ‘meteoric’ rise of LC Steyn to the position of
Chief Justice, largely on the basis of his political affiliation.
22 See Madala (2001) 759.
23 Madala (2001) 759.
24 Mokgoro, Y (2010, December) Judicial appointments Advocate 43–8. See also Davis, DM
(2010, December) Judicial appointments in South Africa Advocate 40–3.
25 Moerane, M (2003) The meaning of transformation of the judiciary in the new South
African context South African Law Journal 120(4):708–18 at 712.
26 Moerane (2003) 712. See also Dugard, J (2007) Judging the judges: Towards an appropriate
role for the judiciary in South Africa’s transformation Leiden Journal of International Law
20(4):965–81 at 968.
27 See, for example, the Income Tax Act 58 of 1962 which created a special court for hearing
income tax appeals.
28 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 273.
29 See generally the Black Administration Act 38 of 1927 (BAA).
30 Policy Framework on the Traditional Justice System under the Constitution, Department of
Justice and Constitutional Development 10, available at http://www.pmg.org.za/policy-
documents/2009/03/02/policy-framework-traditional-justice-system-under.
31 Vani, MS ‘Customary law and modern governance of natural resources in India: Conflicts,
prospects for accord and strategies’ in Pradham, R (ed) (2002) Legal Pluralism and
Unofficial Law in Social, Economic and Political Development 419.
32 Vani (2002) 419.
33 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
34 (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008).
35 Vani (2002) 419.
36 Vani (2002) 419.
37 Vani (2002) 419.
38 Vani (2002) 419.
39 (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March
2004) para 74.
40 See the Traditional Courts Bill B1–2012, available at
http://www.justice.gov.za/legislation/bills/2012-b01tradcourts.pdf. The Bill has been
heavily criticised. See, for example, the submission made to Parliament by the Law, Race
and Gender Research Unit, now the Centre for Law and Society, available at
http://www.cls.uct.ac.za/usr/lrg/docs/TCB/2012/lrg_feb2012_ncopsubmission.pdf.
41 Van Zyl, D (2009) The judiciary as a bastion of the legal order in challenging times
Potchefstroom Electronic Law Journal 12(2):1–13 at 2.
42 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and
the African National Congress in a dominant party democracy Constitutional Court Review
2:1–86 at 1.
43 S 172(1)(a) of the Constitution.
44 S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC)
(11 April 2001) para 18:
Therefore courts have over the centuries developed a method of functioning, a self-
discipline and a restraint which, although it differs from jurisdiction to jurisdiction,
has a number of essential characteristics. The most important is that judges speak
in court and only in court. They are not at liberty to defend or even debate their
decisions in public. It requires little imagination to appreciate that the alternative
would be chaotic. Moreover, as a matter of general policy judicial proceedings of
any significance are conducted in open court, to which everybody has free access
and can assess the merits of the dispute and can witness the process of its
 resolution. This process of resolution ought as a matter of principle to be analytical,
rational and reasoned. The rules to be applied in resolving the dispute should either
be known beforehand or be debated and determined openly. All decisions of
judicial bodies are as a matter of course announced in public; and, as a matter of
virtually invariable practice, reasons are automatically and publicly given for
judicial decisions in contested matters. All courts of any consequence are obliged to
maintain records of their proceedings and to retain them for subsequent scrutiny.
Ordinarily the decisions of courts are subject to correction by other, higher
tribunals, once again for reasons that are debated and made known publicly.
45 Mahomed, I (1998) The role of the judiciary in a constitutional state South African Law
Journal 115(1):111–15 at 112. See also Mamabolo para 16:
In our constitutional order the judiciary is an independent pillar of state,
constitutionally mandated to exercise the judicial authority of the state fearlessly
and impartially. Under the doctrine of separation of powers it stands on an equal
footing with the executive and the legislative pillars of state; but in terms of
political, financial or military power it cannot hope to compete. It is in these terms
by far the weakest of the three pillars; yet its manifest independence and authority
are essential. Having no constituency, no purse and no sword, the judiciary must
rely on moral authority. Without such authority it cannot perform its vital function
as the interpreter of the Constitution, the arbiter in disputes between organs of state
and, ultimately, as the watchdog over the Constitution and its Bill of Rights – even
against the state.
46 (CCT 59/09) [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March 2010)
paras 92–3.
47 See generally Roux, T (2009) Principle and pragmatism on the Constitutional Court of
South Africa International Journal of Constitutional Law 7(1):106–38.
48 (CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December
2017).
49 EFF para 223-24.
50 EFF para 280-82.
51 S 167(1) read with s 165(6) of the Constitution as well as s 4(1) of the Superior Courts Act 10
of 2013. See also 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 (CCT
53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017
(CC) (29 July 2011) para 78.
52 S 167(1) of the Constitution read with s 4(2) of the Superior Courts Act.
53 Justice Alliance para 78.
54 Justice Alliance para 78.
55 Justice Alliance para 78.
56 Justice Alliance para 79.
57 S 4(1)(b) of the Superior Courts Act.
58 S 166(b) of the Constitution. See also Currie and De Waal (2001) 278.
59 S 168(1) of the Constitution.
60 S 4(2)(b) of the Superior Courts Act.
61 S 5(1)(b) of the Superior Courts Act.
62 S 169 of the Constitution.
63 S 169(2) of the Constitution.
64 S 6(2) of the Superior Courts Act.
65 S 8(4)(c) of the Superior Courts Act.
66 S 6 of the Superior Courts Act. Most sections of the Act came into operation in August 2013.
67 See ss 10–16 of the Magistrates Act 90 of 1993.
68 Act 66 of 1995 as amended by Act 127 of 1998.
69 Act 22 of 1994 as amended by Act 48 of 2003.
70 Act 58 of 1962.
71 Children’s Act 38 of 2005.
72 Act 99 of 1998.
73 Act 116 of 1998.
74 Berman G, and Feinblatt, J (2001) Problem-solving courts: A brief primer Law and Policy
23(2):125–40 at 125.
75 See Currie and De Waal (2001) 279–80.
76 See Klug (2010) 237–8.
77 S 168(3) of the Constitution.
78 S 167(3) of the Constitution.
79 However, the Constitution Seventeenth Amendment Act 72 of 2013, available at
https://www.justice.gov.za/legislation/acts/const17th_2013gg36128no72.pdf, changes this
state of affairs.
80 See s 167(3) of the Constitution before it was amended.
81 S 167(3)(b) of the Constitution. See Alexkor Ltd and Another v Richtersveld Community and
Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14
October 2003) para 24 where the Court had to deal with the interpretation of the
Restitution of Land Rights Act 22 of 1994 in dealing with questions about the Richtersveld
community’s rights to the land, but stated that it would also be necessary to deal with non-
constitutional matters:
A more difficult question is to determine whether this Court has jurisdiction to deal
with all issues bearing on or related to establishing the existence of these matters.
For example, the question might be asked whether the issue concerning the
existence of the Community’s rights in land prior to the colonisation of the Cape, or
the content or incidence of such rights, constitute in themselves ‘constitutional
matters’; the same might be asked concerning the continued existence of such
rights after the British Crown’s annexation of the Cape in 1806, or after the 1847
Proclamation or the subsequent statutory and other acts thereafter.
82 S 167(7) of the Constitution.
83 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) para 44.
84 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC)
(25 August 2000) para 24.
85 See Currie, I and De Waal, J (2005) The Bill of Rights Handbook 5th ed 66.
86 Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938
(CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 33; see also para 36. See also Thebus
 and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100
(CC) (28 August 2003) para 25; K v Minister of Safety and Security (CCT52/04) [2005] ZACC
8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005)
para 15; Masiya v Director of Public Prosecutions Pretoria (The State) and Another
(CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007) para 33;
Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691
(CC) (4 April 2007) para 35. Some commentators have wrongly taken issue with this
interpretation, arguing that the Constitution accords the spirit, purport and objects of the
Bill of Rights only a secondary role to serve as a tie-breaker when the rights in the Bill of
Rights, justice and the rules of the common law are indeterminate. See Fagan, A (2010) The
secondary role of the spirit, purport and objects of the Bill of Rights in the common law’s
development South African Law Journal 127(4):611–27. Fagan has been criticised by Davis,
who argues that the Constitution intended that the common law reflect the normative
value system as found in a holistic reading of the text of the Constitution. This means that
the trigger that propels judges to make the decision to develop the common law is to be
found in a judicial engagement with the constitutional value system. See Davis, DM (2012)
How many positivist legal philosophers can be made to dance on the head of a pin? A reply
to Professor Fagan South African Law Journal 129(1):59–72.
87 See S v Boesak (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912 (1 December
2000) para 14.
88 Pharmaceutical Manufacturers para 20.
89 Carmichele para 54.
90 See ss 172(1) and 167(4)(a) of the Constitution. See also Boesak para 14.
91 National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town
and Others (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December
2002) para 14; Alexkor para 23; Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7)
BCLR 687 (CC) (12 March 2004) para 25.
92 Act 4 of 2000.
93 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008
(1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
94 S 167(3)(b)(ii) of the Constitution.
95 S 167(3)(c) of the Constitution.
96 S v Boesak (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912 (1 December
2000) para 15.
97 Paulsen and Another v Slip Knot Investments 777 (Pty) Limited (CCT 61/14) [2015] ZACC 5;
2015 (3) SA 479 (CC); 2015 (5) BCLR 509 (CC) (24 March 2015) paras 21 and 22.
98 Paulsen para 26. See generally Harms, D Does the Constitutional Court have plenary
(unlimited) appeal jurisdiction? De Rebus in 2017 (April)13.
99 Paulsen para 30.
100 Boesak para 15.
101 (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912 (1 December 2000).
102 S v Boesak (105/99) [2000] ZASCA 24 (12 May 2000).
103 Boesak para 15.
104 S 167(5) of the Constitution.
105 (CCT13/09) [2009] ZACC 20; 2009 (6) SA 94 (CC) (22 July 2009) para 15. See also Economic
Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11;
2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016) para 18 where the
Constitutional Court held: ‘But where the Constitution imposes the primary obligation on
Parliament and leaves it at large to determine what would be required of it to execute its
mandate, then crucial political questions are likely to arise which would entail an intrusion
into sensitive areas of separation of powers. When this is the case, then the demands for
this Court to exercise its exclusive jurisdiction would have been met.’
106 S 167(4)(a) of the Constitution.
107 S 167(4)(b) of the Constitution.
108 S 167(4)(c) of the Constitution.
109 S 80(2)(a) of the Constitution.
110 S 122(2)(a) of the Constitution.
111 Ss 80(2)(b) and 122(2)(b) of the Constitution.
112 S 167(4)(d) of the Constitution.
113 (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002) para
12.
114 UDM para 12.
115 (CCT36/95) [1995] ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29 November 1995)
para 47.
116 S 167(4)(e) of the Constitution.
117 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others (SARFU I) (CCT16/98) [1998] ZACC 21; 1999 (2) SA 14; 1999 (2) BCLR 175 (2
December 1998) para 25.
118 Women’s Legal Trust para 11.
119 EFF para 18.
120 Women’s Legal Trust para 12.
121 See generally Doctors for Life International v Speaker of the National Assembly and Others
(CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006).
122 At para 24.
123 See Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996] ZACC 17; 1996 (11)
BCLR 1419; 1996 (4) SA 1098 (6 September 1996); Certification of the Constitution of the
Western Cape, 1997 (CCT6/97) [1997] ZACC 8; 1997 (4) SA 795 (CC); 1997 (9) BCLR 1167
(CC)(2 September 1997); Certification of the Amended Text of the Constitution of the
Western Cape, 1997 (CCT29/97) [1997] ZACC 15; 1997 (12) BCLR 1653; 1998 (1) SA 655 (18
November 1997).
124 Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3; 1998
(2) SA 1143; 1998 (4) BCLR 415 (24 March 1998) para 9. See also Van der Spuy v General
Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392; 2002 (10)
BCLR 1092 (18 July 2002) para 6; National Gambling Board v Premier of KwaZulu-Natal
and Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR 156; 2002 (2) SA 715 (21 December
2001) para 29; Moseneke and Others v Master of the High Court (CCT51/00) [2000] ZACC 27;
2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000) paras 18–9; Dormehl v Minister of
Justice and Others (CCT10/00) [2000] ZACC 4; 2000 (2) SA 825; 2000 (5) BCLR 471 (CC) (14
 April 2000) para 5; Christian Education South Africa v Minister of Education (CCT13/98)
[1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998) paras 3–4; Minister
of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC 7; 1997 (6) BCLR 677; 1997 (3) SA 772
(5 June 1997) para 4; Transvaal Agricultural Union v Minister of Land Affairs and Another
(CCT21/96) [1996] ZACC 22; 1996 (12) BCLR 1573; 1997 (2) SA 621 (18 November 1996)
para 16; Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752
(15 May 1996) para 3; Besserglik v Minister of Trade Industry and Tourism and Others
(Minister of Justice intervening) (CCT34/95) [1996] ZACC 8; 1996 (6) BCLR 745; 1996 (4) SA
331 (14 May 1996) paras 4–6; Luitingh v Minister of Defence (CCT29/95) [1996] ZACC 5;
1996 (4) BCLR 581; 1996 (2) SA 909 (4 April 1996) para 15; S v Mbatha, S v Prinsloo
(CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9 February
1996) para 29; Executive Council of the Western Cape Legislature and Others v President of
the Republic of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289;
1995 (4) SA 877 (22 September 1995) paras 15–7; S v Zuma and Others (CCT5/94) [1995]
ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244
(5 April 1995) para 11.
125 S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997 (2) SA 887 (18
November 1996) para 15; See also Carmichele para 50.
126 Bruce para 8.
127 Transvaal Agricultural Union para 20.
128 AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The
Minister for Home Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA
649 (CC); 2009 (6) BCLR 611 (CC) (12 March 2009) para 30.
129 Bruce para 9. See also Van der Spuy para 6; National Gambling Board para 29; Moseneke
paras 18–9; Dormehl para 5; Christian Education paras 3–4; Ntuli para 4; Transvaal
Agricultural Union para 16; Brink para 3; Besserglik paras 4–6; Luitingh para 15; Mbatha,
Prinsloo para 29; Executive Council of the Western Cape Legislature paras 15–7; Zuma para
11.
130 Bruce paras 7–8. See also AParty para 29.
131 S 167(3)(c) of the Constitution.
132 Currie and De Waal (2005) 111.
133 S 168(3)(a) of the Constitution.
134 See Islamic Unity Convention v Independent Broadcasting Authority and Others
(CCT36/01)) [2002] ZACC 3; 2002 (4) SA 294 (CC) 2002 (5) BCLR 433 (11 April 2002) para
17; De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others
(CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003) para 4.
135 See Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4)
SA 753; 1998 (10) BCLR 1207 (27 August 1998) para 33.
136 (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007) para 17.
137 National Gambling Board para 38; Wallach v High Court of South Africa (Witwatersrand
Local Division) and Others (CCT2/03) [2003] ZACC 6; 2003 (5) SA 273 (CC) (4 April 2003)
para 7.
138 (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998) para 33.
139 S 169(1)(a) of the Constitution.
140 S 167(5) of the Constitution.
141 See Currie and De Waal (2005) 122.
142 Act 32 of 1944.
143 Wesson and Du Plessis (2008) 191.
144 See also O’Regan, K (2004) Human rights and democracy – a new global debate:
Reflections on the first ten years of South Africa’s Constitutional Court International
Journal of Legal Information 32(2):200–16 at 202.
145 See S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002)
para 27.
146 See Constitution of Kenya (2010) item 23 in Schedule 6, which states:
(1) Within one year after the effective date, Parliament shall enact legislation …
establishing mechanisms and procedures for vetting, within a timeframe to be
determined in the legislation, the suitability of all judges and magistrates who were
in office on the effective date to continue to serve in accordance with the values and
principles set out in [the Constitution] …
(2) A removal, or a process leading to the removal, of a judge, from office by virtue
of the operation of legislation contemplated under subsection (1) shall not be
subject to question in, or review by, any court.
147 De Lange, R and Mevis, PAM (2007) Constitutional guarantees for the independence of the
judiciary Electronic Journal of Comparative Law 11(1):1–17 at 7.
148 See Ntlama, N (2011) The Hlophe saga: the question for the institutional integrity of the
judiciary US-China Law Review 8(8):758–99 at 772.
149 Zuma para 17.
150 See also s 39(1)(b) and (c) of the Constitution which requires the court to take into account
international law and allows the court to take into account foreign case law when
interpreting the provisions of the Bill of Rights.
151 De Vos, P (2001) A bridge too far? History as context in the interpretation of the South
African Constitution South African Journal on Human Rights 17(1):1–33 at 6.
152 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995
(2) SACR 1 (6 June 1995).
153 Klare, K (1998) Legal culture and transformative constitutionalism South African Journal on
Human Rights 14(1):146–88 at 173. See also Makwanyane para 207, per Kriegler J.
154 Makwanyane para 321, per O’Regan J; para 207, per Kriegler J; para 266, per Mahomed J;
para 382, per Sachs J.
155 See Klare (1998) 172–87 for examples of this kind of reasoning by the judges of the
Constitutional Court.
156 (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) para 48.
157 (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).
158 Van Rooyen para 19. See also De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6;
1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) (28 May 1998) para 71.
159 Van Rooyen para 22.
160 Van Rooyen para 32.
161 Van Rooyen para 33.
162 Van Rooyen para 32.
163 See Lewis, C (2008, 15 October) The troubled state of South Africa’s judiciary, Paper
presented at the South African Institute of Race Relations, available at
 http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?
oid=106544&sn=Detail. See also Currie and De Waal (2001) 300.
164 See Larkins, CM (1996) Judicial independence and democratization: A theoretical and
conceptual analysis American Journal of Comparative Law 44(4):605–25 at 611.
165 Larkins (1996) 611.
166 Van Rooyen paras 22 and 31.
167 For example, after Judge Chris Nicholson found that there was political interference in the
decision to charge Jacob Zuma for corruption in Zuma v National Director of Public
Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1 All SA 54 (N); 2009 (1) BCLR 62 (N) (12
September 2008), the NEC of the ANC decided to ‘recall’ then President Thabo Mbeki as
President of South Africa. The judgment therefore had a profound and immediate effect on
who headed up the executive and thus who governed the country.
168 Wesson and Du Plessis (2008) 191.
169 Wesson and Du Plessis (2008) 192.
170 Act 9 of 1994.
171 See Malleson, K (1999) Assessing the performance of the Judicial Service Commission
South African Law Journal 116(1):36–49 at 38.
172 S 178(1)(a)–( j) of the Constitution. See generally Davis (2010, December) 41 and Mgkoro
(2010, December) 43.
173 For an extensive discussion about the political influence on the JSC, see Powell, C and
Franco. J (2004) The meaning of institutional independence in Van Rooyen v S, South
African Law Journal 121(3):562–79 at 562.
174 Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8; 2018
(4) SA 1 (CC); 2018 (7) BCLR 763 (CC) (24 April 2018) paras 34 and 37.
175 S 178(1) of the Constitution.
176 Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape
Province (537/10) [2011] ZASCA 53; 2011 (3) SA 538 (SCA); [2011] 3 All SA 459 (SCA) (31
March 2011) para 12 where Harms AJ stated that:
it would be inconsistent and illogical for the Constitution to provide for a Premier to
participate in the appointment of a high court judge – and, as I have said, the JSC
agrees that a Premier is included for this purpose – but not in a decision to remove
such a judge. Both affect the composition of the bench of a particular high court.
177 Davis (2010, December) 41; Wesson and Du Plessis (2008) 193; Kentridge, S (2003) The
highest court: Selecting the judges Cambridge Law Journal 62(1):55–71 at 55.
178 See, for example, McKaiser, E (2009, 6 August) Tragicomedy revealed more about JSC than
about judges Business Day in which the author takes the JSC to task for its inability to probe
any of these key questions when the JSC last year conducted interviews for four vacancies
on the Constitutional Court. See also De Vos, P (2013, 21 January) Judicial appointments:
The JSC’s transformation problem Constitutionally Speaking, available at
http://constitutionallyspeaking.co.za/judicial-appointments-the-jscs-transformation-
problem/.
179 (CCT289/16) [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC) (24 April 2018).
180 Helen Suzman Foundation para 3.
181 Helen Suzman Foundation para 42.
182 Helen Suzman Foundation para 38.
183 Helen Suzman Foundation para 40.
184 S 174(3) of the Constitution.
185 S 174(3) of the Constitution.
186 See Gauntlett, J and Du Plessis, M (2011, 25 August) Ex Parte: Freedom under Law, in re:
The Appointment of the Chief Justice Memorandum 10–11 Constitutionally Speaking,
available at http://constitutionallyspeaking.co.za/ful-proposes-changes-to-appointment-
of-chief-justice/.
187 S 174(4) of the Constitution.
188 S 174(4)(a) of the Constitution.
189 S 174(4)(b) and (c) of the Constitution.
190 S 174(5) of the Constitution.
191 S 174(6) of the Constitution.
192 Helen Suzman Foundation paras 34.
193 S 174(1) and 174(2) of the Constitution.
194 See Judicial Service Commission, Summary of the Criteria Used by the Judicial Service
Commission when Considering Candidates for Judicial Appointments, available at
http://constitutionallyspeaking.co.za/criteria-used-by-jsc-when-considering-judicial-
appointments/.
195 Cowen, S (2013) Judicial selection in South Africa, Democratic Governance Rights Unit
(DGRU) Working Paper Series 15, available at
http://www.dgru.uct.ac.za/usr/dgru/downloads/Judicial%20SelectionOct2010.pdf.
196 S 165(2) of the Constitution.
197 In an address to the International Commission of Jurists in Cape Town on 21 July 1998 5.
198 See Mogoeng, M (2014, 29 April) `The role of Constitutional and Supreme Courts in the
protection of the constitutional order’, speech given at the second congress of the
Association of Asian Constitutional Courts and Equivalent Institutions held in Istanbul
Turkey on 29 April 2014.
199 See s 1(a) of the Constitution.
200 Cowen (2013) 57.
201 Forsyth, C (1991) Interpreting a bill of rights: The future task of a reformed judiciary South
African Journal on Human Rights 7(1):1–23 at 15–17.
202 See generally Pruitt, LR (2002) No black names on the letterhead? Efficient discrimination
and the South African legal profession Michigan Journal of International Law 23(3):545–
676.
203 See, for example, Davis, RPB (1914) Women as advocates and attorneys South African Law
Journal 31(4):383–86 at 384 for an example of early discriminatory attitudes towards
women in the legal profession in South Africa:
We cannot but think the common law wise in excluding women from the profession
of law … the law of nature destines and qualifies the female sex for the bearing and
nurture of children and our race and for the custody of the world … all life-long
callings of women, inconsistent with these radical and sacred duties of their sex, as
is the profession of law, are departures from the order of nature and when voluntary
treason against it. The cruel chances of life sometime baffle both sexes and may
leave women free from peculiar duties of their sex … but it is public policy to
provide for the sex not for its superfluous members; and not to tempt women from
the proper duties of their sex by opening to them duties peculiar to ours.
204 See De Vos, P (2013, 11 April) The JSC must redefine merit to advance judicial
transformation Constitutionally Speaking, available at
http://constitutionallyspeaking.co.za/the-jsc-must-redefine-merit-to-advance-judicial-
transformation/.
205 See Lewis (2008, 14 October) 2.
206 Cowen (2013) 66.
207 Davis (2010, December) 42.
208 For divergent perspectives, see Mkhabela, M (2011, 19 August) Judiciary must be de-
politicised The Sowetan, available at
http://www.sowetanlive.co.za/columnists/2011/08/19/judiciary-must-be-de-politicised;
Hoffman, P (2011, 2 December) To judge the judgments Mail & Guardian, available at
http://mg.co.za/article/2011-12-02-to-judge-the-judgments.
209 Cowen (2013) 69.
210 (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1
All SA 40 (SCA) (14 September 2012), affirming the decision of the Western Cape High
Court in Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011]
ZAWCHC 388; 2012 (4) BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011).
211 Cape Bar Council paras 20–2.
212 Cape Bar Council para 36.
213 Cape Bar Council paras 43–4.
214 Cowen (2013) 71–73.
215 S 174(8) of the Constitution states: ‘Before judicial officers begin to perform their functions,
they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and
protect the Constitution.’
216 Currie and De Waal (2001) 305.
217 See ss 176 and 177.
218 S 176 was amended by the Constitution Sixth Amendment Act 34 of 2001.
219 Act 47 of 2001.
220 The amendment was widely seen as a move to extend the term of office of then Chief
Justice Arthur Chaskalson who was coming to the end of his term of office. See Du Bois, F
(2002) Tenure on the Constitutional Court South African Law Journal 119(1):1–17 who
criticised the amendment of s 176 of the Constitution as well as the provisions of the
Judges’ Remuneration and Conditions of Employment Act and referred to a submission
made to Parliament at the time when it was debating this issue. The article also notes
critical comments made by then Chief Justice Chaskalson about moves to extend his term.
221 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR
1017 (CC) (29 July 2011).
222 Justice Alliance para 50.
223 Justice Alliance para 51.
224 Justice Alliance para 67.
225 Justice Alliance para 68.
226 Justice Alliance para 73.
227 Justice Alliance para 75.
228 Justice Alliance paras 79–80.
229 Justice Alliance para 91.
230 S 176(2) of the Constitution.
231 S 177(3) of the Constitution.
232 S 8 of the JSC Act.
233 Ss 14 and 15 of the JSC Act.
234 S 15(2) of the JSC Act.
235 S 17 of the JSC Act.
236 S 22 of the JSC Act.
237 S 33 of the JSC Act.
238 (2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March
2011).
239 Freedom Under Law para 7.
240 Freedom Under Law para 63.
241 Freedom Under Law para 42.
242 Freedom Under Law para 45.
243 S 176(3) of the Constitution.
244 Established under s 2 of the Independent Commission for the Remuneration of Public
Office-bearers Act 92 of 1997.
245 Ss 2(6) and 14 of the Judges’ Remuneration and Conditions of Employment Act.
246 See generally Currie and De Waal (2001) 307.
247 1945 AD 6.
248 1981 (1) SA 1 (A).
249 Currie and De Waal (2001) 307.
250 Act 10 of 2013.
251 If it is sought to serve process out of a magistrates’ court, then the litigant must obtain the
prior permission of that division of the Supreme Court which has appeal jurisdiction over
the magistrates’ court in question.
252 Currie and De Waal (2001) 308.
253 S 5 of the Constitutional Court Complementary Act 13 of 1995.
254 S 165(6) of the Constitution states: ‘The Chief Justice is the head of the judiciary and
exercises responsibility over the establishment and monitoring of norms and standards for
the exercise of the judicial functions of all courts.’
255 Act 103 of 1994, Proclamation 44 of 2010, amending Schedule 1.
256 Act 10 of 2013.
257 S 8 of the Superior Courts Act.
258 See ‘Office of the Chief Justice Annual Report 2018/19’, p 18, accessed on 20 October 2019 at
https://www.judiciary.org.za/images/Annual-Reports/OCJ_Annual_Report_2018-19.pdf.
259 See generally Currie and De Waal (2001) 308–10.
260 See s 9(1)(b) of the Magistrates’ Courts Act which sets out the necessary qualifications for
appointment as a magistrate. See generally Van Rooyen.
261 Act 111 of 1984.
262 Currie and De Waal (2001) 308.
263 Hoexter Commission of Inquiry into the Structure and Functioning of the Courts (1983) RP
78/83 Part IV para 4.2.1 (g).
264 Act 90 of 1993.
265 Van Rooyen para 49.
266 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 136.
267 See s 3 of the Magistrates Act.
268 Van Rooyen para 57.
269 Van Rooyen para 61.
270 S 3(1)(a) of the Magistrates Act.
271 Van Rooyen para 40.
272 South African Law Commission (2003) Customary Law: Report on Traditional Courts and
the Judicial Function of Traditional Leaders Project 90 1, accessed on 25 January 2013 at
http://www.justice.gov.za/salrc/reports/r_prj90_tradlead_2003jan.pdf.
273 See, for example, the Black Administration Act 38 of 1927, the Bophuthatswana Traditional
Courts Act 29 of 1979, the KwaNdebele Traditional Authorities Act 8 of 1984, the Chiefs
Courts Act 6 of 1993 (Transkei) and the KwaZulu Amakhosi and Iziphakanyiswa Act 9 of
1990.
274 Act 38 of 1927. Most sections of this law have been repealed, but these sections are some of
the few that were retained and continue to be in operation.
275 Section 16 of Schedule 6 of the Constitution reads as follows:
Every court, including courts of traditional leaders, existing when the new
Constitution took effect, continues to function and to exercise jurisdiction in terms
of the legislation applicable to it, and anyone holding office as a judicial officer
continues to hold office in terms of legislation applicable to that office, subject to (a)
any amendment or repeal of that legislation; and (b) consistency with the new
Constitution.
276 S 211(1) of the Constitution states: ‘The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the Constitution.’
277 S 212(1) of the Constitution.
278 Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v
North West Provincial Government and Another (CCT22/99) [2000] ZACC 2; 2000 (4) BCLR
347; 2001 (1) SA 500 (2 March 2000) para 1. See also Moseneke paras 20–1 where the
Constitutional Court described the BAA as follows:
The Act systematised and enforced a colonial form of relationship between a
dominant white minority who were to have rights of citizenship and a subordinate
black majority who were to be administered. … It is painful that the Act still survives
at all. The concepts on which it was based, the memories it evokes, the language it
continues to employ, and the division it still enforces, are antithetical to the society
envisaged by the Constitution. It is an affront to all of us that people are still treated
as ‘blacks’ rather than as ordinary persons seeking to wind up a deceased estate,
and it is in conflict with the establishment of a non-racial society where rights and
duties are no longer determined by origin or skin colour.
279 S 12(4) of the BAA provides for appeals from judgments of a chief, headman or chief’s
deputy in a civil matter, while s 20(6) provides for appeals from a chief, headmen or chief’s
deputy in a criminal matter. In each case the appeal goes to the magistrates’ court. See also
Bennett, TW (2004) Customary Law in South Africa 127.
280 SALC (2003) Report on Traditional Courts and the Judicial Function of Traditional Leaders
5.
281 See s 28(1) of the Traditional Leadership and Governance Framework Act 41 of 2003
(TLGFA).
282 Ss 12 and 20 of the BAA.
283 SALC (2003) Report on Traditional Courts and the Judicial Function of Traditional Leaders
6.
284 Mnisi Weeks, S (2011) Beyond the Traditional Courts Bill: Regulating customary courts in
line with living customary law and the Constitution South African Crime Quarterly
35(31):32.
285 S 165(2) of the Constitution. See Bennet (2004) 117. This argument was rejected in
Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western
Tembuland Regional Authority (1998) 3 BCLR 314 (Tk). However, in Mhlekwa & Feni v Head
of the Western Tembuland Regional Authority 2000 (9) BCLR 979 (Tk) 1017–18, the Court
held that the fact that there is a fusion of judicial and administrative functions does not
necessarily denote an absence of judicial independence. Some of the functions performed
by chiefs are such that they may potentially involve him or her in controversial public
issues and may create a perception of an unduly close relationship with the executive
branch of government. The Court implored the legislature to address this problem.
286 Bennet (2004) 128.
287 See the Attorney-General Act 92 of 1992, which came into operation on 30 December 1992.
288 Zyl Smit, D and Steyn, E (2000) Prosecuting Authority in the New South Africa CIJL YB
8:137–55 at 143.
289 See JA van S d’Oliveira SC (1993) The Office of the Attorney-General Nuntius 70.
290 The salary of an attorney-general could no longer be reduced, except through an act of
Parliament. (Section 3(1)(b) of Act 92 of 1992).
291 S 4 of Act 92 of 1992 provided such security.
292 Van Zyl Smit and Steyn (2000) 145.
293 S 20 of the NPA Act.
294 S 179(5)(c) of the Constitution and s 22(2)(b) of the NPA Act.
295 S 179(5)(a) of the Constitution and s 22(2)(a) of the NPA Act.
296 Van Zyl Smit and Steyn (2000) 146.
297 NPA Prosecution Policy, revised June 2013, accessed on 24 October 2019 at
https://www.npa.gov.za/sites/default/files/Library/Prosecution%20Policy%20%28Final%2
0as%20Revised%20in%20June%202013.%2027%20Nov%202014%29.pdf.
298 See Downer, B ( 2010, 24 September) Address to the Middle Temple South African
Conference on The Rule of Law and Prosecutions: To Prosecute or not to Prosecute: A
South African Perspective.
299 See, for instance, the references to the Ontario Crown Prosecuting manual in McGoey, C
(2004, March) ‘The ‘Good’ Criminal Law Barrister: A Crown Perspective’ Second Colloquia
on the Legal Profession, Canada, March, 2004 4–7.
300 S 179(5)(d) of the Constitution and s 22(1)(c) of the NPA Act.
301 Van Zyl Smit and Steyn (2000) 148.
302 National Director of Public Prosecutions and Others v Freedom Under Law (67/2014) [2014]
ZASCA 58; 2014 (4) SA 298 (SCA); 2014 (2) SACR 107 (SCA); [2014] 4 All SA 147 (SCA) (17
April 2014) para 51.
303 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) para 13.
304 (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442
(CC) (13 August 2018) para 19.
305 National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277
(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) (12
January 2009).
306 Ibid para 32.
307 S 32(1)(a) of the NPA Act. See also National Director of Public Prosecutions v Zuma (573/08)
[2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA);
[2009] 2 All SA 243 (SCA) (12 January 2009) para 34; and S v Yengeni [2005] ZAGPHC 117;
2006 (1) SACR 405 (T).
308 S 32(1)(b) of the NPA Act.
309 S 41(1) of the NPA Act.
310 S 33(1) of the NPA Act.
311 S 33(2) of the NPA Act.
312 See Woolayer, H and Bishop, M Submission to the Inquiry into the NDPP: South African
Institute for Advanced Constitutional, Public, Human Rights and International 40; See also
Zuma v National Director of Public Prosecutions, Natal Provincial Division (8652/08) [2008]
ZAKZHC 71; [2009] 1 All SA 54 (N); 2009 (1) BCLR 62 (N) (12 September 2008) para 137.
(The ‘Nicholson Judgment’), in agreement, at 90.
313 National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277
(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) (12
January 2009) para 37.
314 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) para 26.
315 Van Zyl Smit and Steyn (2000) 144; Certification of the Constitution of the Republic of South
Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) para 141.
316 Certification case para 146.
317 ‘Restoring the Independence of the Prosecutorial Authority in South Africa’ (2019, 19
February), accessed on 21 October 2019 at https://www.lssa.org.za/news-headlines/press-
releases/restoring-the-independence-of-the-prosecutorial-authority-in-south-africa.
318 Certification case para 141.
319 Certification case para 141.
320 (62470/2015) [2017] ZAGPPHC 743; [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) (8
December 2017).
321 Corruption Watch paras 112 and 114.
322 Corruption Watch para 128.
323 S 12(6)(a) of the NPA Act.
324 S 12(6)(a) of the NPA Act, read with s 12(6)(e).
325 S 12(6)(c) of the NPA Act
326 S 7 of the NPA Act.
327 (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442
(CC) (13 August 2018).
328 S 12(8) of the NPA Act.
329 Corruption Watch para 23.
330 Corruption Watch paras 25–8.
Separation of powers and Chapter
9 institutions

7.1 Introduction

7.2 Independence of Chapter 9 institutions

7.3 The Public Protector - a special case?

Summary

7.1 Introduction
Figure 7.1 Separation of powers and Chapter 9 institutions

Chapter 9 of the Constitution establishes certain institutions that are

designed to support and strengthen constitutional democracy. These
institutions are:1
• the Public Protector
• the South African Human Rights Commission
• the Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities
• the Commission for Gender Equality
• the Auditor-General
• the Electoral Commission.

Chapter 9 institutions ‘share two roles: that of checking government (or,

in the language of the Constitution, of contributing to accountable
government or “monitoring” government), and that of contributing to
the transformation of South Africa into a society in which social justice
prevails’.2 These institutions are independent non-judicial institutions
and do not play the same role as the judiciary in enforcing the
Constitution. It is therefore not clear how these institutions fit into the
traditional separation of powers model: while they are independent
from the other branches of government,3 they are also accountable to
the National Assembly (NA), one of the other branches of government.4
The institutions can make findings and recommendations and – in the
case of the Public Protector – can issue binding remedial action. But,
unlike the judiciary, they do not have the power to review and set aside
legislation or the actions of the executive. However, they are ‘important
tools to monitor the state’s realisation of individuals’ rights in terms of
its constitutional obligations’.5 These institutions may therefore be in a
similar position as the National Prosecuting Authority: independent
from the legislature, executive and other organs of state, but
accountable to the National Assembly. It is therefore possible to argue
that Chapter 9 institutions constitute another branch of government
within the separation of powers framework, each with its own unique
relationship towards the other branches of government.
Regardless of this uncertain position in the separation of powers
architecture, the role of these institutions is essential in a democracy
emerging from a history of discrimination, oppression and lack of
accountability as they assist the various organs of state to adhere to the
values and principles of the new constitutional dispensation.6 To fulfil
this task, it is important that these institutions should enjoy a degree of
independence.

7.2 Independence of Chapter 9 institutions

Institutions set up to safeguard and promote democracy (and the rights
required to safeguard that democracy) can only do their work if they
enjoy a certain level of independence from the legislative and executive
branches of government.7 However, these institutions are not judicial in
nature and usually do not enjoy the same kind of institutional
independence as that enjoyed by the judiciary in a democratic state. In
South Africa – as elsewhere – these institutions potentially find
themselves in a precarious situation. On the one hand, they have to act
as watchdogs to prevent the abuse of power, often by state entities,8 and
are required to act in a scrupulously fair and impartial manner. On the
other hand, these institutions are often also required to work with the
legislature and the executive and may have to rely on their co-operation
‘to get things done’. The Public Protector, for example, often complains
of a lack of co-operation of those she investigates.9 In an extreme case,
the KwaZulu-Natal office of the Auditor-General had to stop auditing
the books of the eThekwini Metro and had to recall its staff from the
council after allegedly receiving a series of death threats.10 Chapter 9
institutions, therefore, are often caught between Scylla and Charybdis,
having to try and get co-operation from the executive and the legislature
(or at least, having to try not to provoke these institutions into
retaliating), while also having to act independently from them.11
There are several provisions in the Constitution relating to the
independence of Chapter 9 institutions. Some of these provisions
guarantee the independence of these institutions in a general manner
while others deal with the institutional independence of these
institutions. The Constitution clearly guarantees the independence of
these institutions in general terms by proclaiming in section 181(2)
that:
These institutions are independent, and subject only to the Constitution and
the law, and they must be impartial and must exercise their powers and
perform their functions without fear, favour or prejudice. 12

Section 181(3) of the Constitution further requires other organs of state

to ‘assist and protect these institutions’ to ensure their ‘independence,
impartiality, dignity and effectiveness’. This provision places a duty on
any department of state or administration in the national, provincial or
local sphere of government, every other functionary or institution
exercising a power or performing a function in terms of the Constitution
or a provincial constitution, and anyone exercising a public power or
performing a public function in terms of any legislation, to assist
Chapter 9 institutions with their work. This duty does not apply to
courts as courts are not organs of state in terms of the Constitution.13
Section 181(4) of the Constitution furthermore states that ‘[n]o person
or organ of state may interfere with the functioning of these
institutions’.14 Legislation dealing with different Chapter 9 institutions
gives teeth to this provision in different ways. For example, the Public
Protector Act15 prohibits anyone from insulting the Public Protector or
the Deputy Public Protector and prohibits anyone from doing anything
in connection with an investigation which, ‘if the said investigation had
been proceedings in a court of law, would have constituted contempt of
court’.16 This means that the rules of contempt of court also apply to the
Public Protector. Contravening any of these sections is a criminal
offence.17 Another example is to be found in the Public Audit Act18
which prohibits anyone from hindering or interfering with the Auditor-
General or any person exercising a power or carrying out a duty in
terms of the Act, or refusing to comply with a request of the Auditor-
General or an authorised auditor. It also prohibits anyone from
deliberately misleading the office of the Auditor-General.19
Contravening these sections is also a criminal offence.
The independence of Chapter 9 institutions is further enhanced – at
least to some degree – by the constitutionally prescribed process for the
appointment and removal of those heading up these institutions. First,
the Constitution lays down minimum requirements for appointment as
Public Protector, Auditor-General and as a member of any Chapter 9
Commission. These requirements do not appear to be onerous. Except
for the Auditor-General, the only requirements for appointment are that
the person must be a South African citizen and that he or she must be a
fit and proper person to hold the particular office. Other requirements
can be prescribed by national legislation.20 The courts, however, have
indicated that these requirements should not be taken lightly and in
South African Broadcasting Corporation Soc Ltd and Others v
Democratic Alliance and Others (in the context of the appointment of
the Public Protector) the Supreme Court of Appeal held that these
requirements ‘obviously [suggest] that the incumbent must be someone
who is beyond reproach, a person of stature and suitably qualified’.21
Apart from the above, specialised knowledge of, or experience in,
auditing, state finances and public administration ‘must be given due
regard in appointing the Auditor-General’.22 As is the case with the
appointment of judges, the need for a Chapter 9 Commission ‘to reflect
broadly the race and gender composition of South Africa must be
considered when members are appointed’.23 While the President
formally appoints the Public Protector, Auditor-General and members
of the various Chapter 9 commissions, he or she does not have a
discretion in the matter and must appoint the candidates nominated by
the National Assembly.24 This means that, in effect, the National
Assembly decides who is appointed to these positions. In the case of the
Public Protector and the Auditor-General the appointments must be
approved by a majority of at least 60% of the members of the National
Assembly.25 The other appointments, however, merely require approval
from at least 50% of the members of the National Assembly.26 The
Constitution allows for the involvement of civil society in the National
Assembly selection process.27 The obligations of the National Assembly
in this regard are the same as the general obligations to facilitate public
involvement in law making, which means the principles developed in
Doctors for Life International v Speaker of the National Assembly and
Others28 discussed in chapter 4 apply here. These provisions are aimed
at ensuring that the candidate is a person who has wide respect among
the different political parties represented in the legislature.29 Critics
argue, however, that the appointment process is flawed as it does not
guarantee the appointment of truly independent and impartial people
to Chapter 9 institutions.30 First, the panel of National Assembly MPs
which shortlists, interviews and selects the nominees is made up of
politicians representing their various political parties, which means that
their political party interests might trump their duty to select
independent and impartial people. Second, the nominees are selected
after being interviewed by the panel of MPs, and it is argued that a mere
interview is inadequate to identify behavioural characteristics like
integrity, honesty and reliability, which are crucial to the integrity of the
office. Bazana thus argues that:
These problems could be addressed if a more competency-based assessment
selection method was used. A more professional approach would be
appropriate since the key post should be occupied by an apolitical,
professional person. He or she is not an elected political office bearer … A job
analysis is a technical process. It is a systematic review of a job that culminates
in identifying and determining in detail the particular duties of a job (job
description) and its requirements (job specification). The process also provides
 details about the relative importance of the identified duties and requirements
of a given job.31

However, the Constitution has allocated the task of selecting candidates

for appointment to the National Assembly, which means that political
considerations will inevitably have at least some influence on who is
appointed. The requirement that at least 60% of the members of the NA
must support the appointment of the Public Protector and the Auditor-
General may also require political parties to compromise on a
candidate and may help to reduce the influence of party-political
considerations in appointments – especially when no party has more
than 60% of the seats in the National Assembly. A different model is
followed for the appointment of the members of the Electoral
Commission to minimise the party-political influence on the process.
This is needed because the Electoral Commission safeguards the
integrity of elections and must be seen to be free from political
interference. The Electoral Commission Act, therefore, provides that a
panel, consisting of the Chief Justice (acting as chairperson), a
representative of the Human Rights Commission, a representative of the
Commission on Gender Equality and the Public Protector, nominate a
minimum of eight recommended candidates to a committee of the
National Assembly, who must then select five candidates from that list.
The President is then required to appoint the five nominees selected by
committee and approved by a majority of at least 50% of the members
of the National Assembly.32 The prescribed procedure for the
appointment of the members of the Electoral Commission thus fetters
the power of the National Assembly as it cannot nominate candidates
for appointment unless they are on the list of eight names nominated by
the independent panel.
The independence of the Public Protector, Auditor-General and
commissioners of the other Chapter 9 institutions is also secured
through constitutional provisions regarding their removal from office.33
First, they cannot be removed for purely political reasons. Instead, they
can be removed from office only on the grounds of misconduct,
incapacity or incompetence in terms of a finding to that effect by a
committee of the National Assembly.34 The power to remove them from
office is only available if one of the listed grounds is established.35 In
dealing with a similar, but not identical, provision relating to the
impeachment of the President, the Constitutional Court held in
Economic Freedom Fighters and Others v Speaker of the National
Assembly and Another that removal can occur only after the National
Assembly had determined that one of the listed grounds for removal
exists. As those grounds constitute conditions for removal, a removal
where none of those grounds is established would not be a removal
contemplated by the Constitution and would be unconstitutional.36 This
may mean that any process for removing the Public Protector, Auditor-
General and commissioners of other Chapter 9 institutions would have
to be preceded by a preliminary enquiry, during which the Assembly
determines that one or more of the listed ground exists, something
provided for in rules passed by the National Assembly in 2019.37 This is a
factual inquiry in which political considerations ought not to play any
role. Once this precondition has been met, the Assembly will have to
consider whether removal is appropriate. This second step is a more
political process in which political considerations may well play a role
and even if it is found that the person is guilty of misconduct, incapacity
or incompetence, the National Assembly may still decline to support his
or her removal from office. For the removal of the Public Protector or
the Auditor-General a resolution of the National Assembly must be
adopted with a supporting vote of at least two thirds of the members of
the Assembly38 while the removal of a commissioner requires a simple
majority.39 The President may suspend a person from office at any time
after the start of the proceedings of a committee of the National
Assembly for the removal of that person.40 Once again, the President has
no discretion in the matter and once the Assembly has adopted the
resolution for removal with the required majority, the President must
remove that person from office.41
The discussion set out above illustrates that, in principle if not
always in practice, Chapter 9 institutions in South Africa do enjoy
constitutionally and legally protected independence from the
government. In two Constitutional Court judgments dealing directly
with Chapter 9 institutions,42 and one dealing with the concept of
independence more generally,43 the Constitutional Court has
confirmed, not only that the Constitution guarantees the independence
of these institutions, but has also provided some helpful guidelines for
looking at the notion of independence of these institutions. In the first
of these judgments, namely, Independent Electoral Commission v
Langeberg Municipality,44 the Constitutional Court held that although
Chapter 9 institutions, such as the Electoral Commission, are organs of
state as defined in section 239 of the Constitution,45 they are not
departments or administrations in the national sphere of government
over which the Cabinet exercises authority. While they form a part of
the state, they do not form a part of the government. Independence of
the institution thus refers to independence from the government.
According to the Court, these institutions cannot be independent from
the national government, yet be part of it.46 The Court thus affirmed the
institutional independence of these institutions. The logic of this view is
that Chapter 9 institutions are not subject to the co-operative
government provisions set out in Chapter 3 of the Constitution. These
institutions perform their functions in terms of national legislation, but
‘are not subject to national executive control’.47 There is a need for these
institutions to ‘manifestly be seen to be outside government’.48
The Langeberg case suggests that a clear and sharp distinction must
be drawn between these institutions and the executive authority. Any
action by the executive that would create an impression that a Chapter 9
institution is not manifestly outside government would be
constitutionally unacceptable. There is little room for manoeuvre here.
More leeway exists regarding the relationship between Parliament and
the Chapter 9 institutions because these institutions are accountable to
the NA. As we shall see below, in practice, these institutions have not
always operated at sufficient arms-length from either the executive or
Parliament. This may have compromised the effectiveness of these
institutions in fulfilling their mandates.
While this is not explicitly stated in the Constitution, the
Constitutional Court has also affirmed the basic principle that Chapter
9 institutions must have some degree of financial independence to
function independently and to be able to exercise their duties without
fear, favour or prejudice. At the same time, the Constitutional Court has
made it clear that this does not mean that these institutions can set their
own budgets. What is required is for Parliament to provide a reasonable
amount of money that would enable the institutions to fulfil their
constitutional and legal mandates. In discussing the financial
independence of the Electoral Commission, the Constitutional Court
explained in New National Party v Government of the Republic of South
Africa and Others:
This implies the ability to have access to funds reasonably required to enable
the Commission to discharge the functions it is obliged to perform under the
Constitution and the Electoral Commission Act. This does not mean that it can
set its own budget. Parliament does that. What it does mean, however, is that
Parliament must consider what is reasonably required by the Commission and
deal with requests for funding rationally, in the light of other national interests.
It is for Parliament, and not the executive arm of government, to provide for
funding reasonably sufficient to enable the Commission to carry out its
constitutional mandate. The Commission must accordingly be afforded an
adequate opportunity to defend its budgetary requirements before Parliament
or its relevant committees.49

It is important to note that this task is clearly one to be exercised by

Parliament. The Court accepted that there inevitably would be a tension
between Parliament and the executive on the one side and the
independent institution on the other about the reasonableness of the
amount of money to be given to ensure the effective fulfilment of its
constitutional mandate. It is incumbent on the parties to make every
effort to resolve that tension and to reach an agreement by negotiation
and good faith. This, according to the Constitutional Court, would no
doubt entail considerable meaningful discussion, exchange of relevant
information, a genuine attempt to understand the respective needs and
constraints, and the mutual desire to reach a reasonable conclusion.50
When Parliament engages in this process, however, it must deal with
requests rationally in the light of other national interests. This means
the institutions must be afforded an adequate opportunity to defend
their budgetary requirements before Parliament or its relevant
committees. Thus ‘[n]o member of the executive or administration
should have the power to stop transfers of money to any independent
constitutional body without the existence of appropriate safeguards for
the independence of that institution’.51
 In addition, in New National Party, the Constitutional Court stated
that the Chapter 9 institutions require more than financial
independence. For these institutions to operate independently and for
them to fulfil their respective tasks without fear, favour or prejudice, the
Constitutional Court said that the administrative independence of these
institutions should be safeguarded.52 This implies that these institutions
must have control over those matters directly connected with their
functions under the Constitution and the relevant legislation. No matter
what arrangements Parliament or the executive may make, it is
important that the institutions retain operational control over their core
business. What is required is that any arrangements must not interfere
with the constitutional mandate of the Chapter 9 institutions to perform
their duties impartially. In New National Party, the Constitutional Court
made it clear that section 181(3) of the Constitution requires the
executive to engage with the institutions in a manner that would ensure
that the efficient functioning of the Commission is not hampered.53
The Constitutional Court further indicated that a failure on the part
of the executive to comply with such obligations ‘may seriously impair
the functioning and effectiveness of those State institutions supporting
constitutional democracy and cannot be condoned’.54 This means that
Parliament or the executive cannot interfere directly in the day-to-day
running of these institutions. They also cannot instruct the institutions
on a micro level regarding their programmes and implementation
thereof, and cannot get directly involved in the employment or
management of staff. At the same time, Parliament and the executive
have a duty to support these institutions. If institutional problems are of
such magnitude or seriousness that they make it difficult or impossible
for an institution to fulfil its constitutional and legislative tasks,
Parliament can, and indeed must, assist such an institution to resolve
these problems. Such assistance must not, however, have the effect of
removing control over matters directly connected with an institution’s
functions and must not hamper the efficient functioning of an
institution. In short, while Parliament and the executive can engage
with these institutions to assist them to improve their performance,
they cannot do so in a way that would remove final control over
administration from the institutions or that results in interference in the
efficient functioning of these institutions. Thus, the Constitutional Court
ruled that the Department of Home Affairs cannot tell the Electoral
Commission how to conduct voter registration, whom to employ, and
so on.55 However, if the Commission asks the government to provide
personnel to assist in the registration process, government must provide
such assistance if it is able to do so. If not, the Commission must be
provided with adequate funds to enable it to do what is necessary. As a
general rule, there has been no direct interference by the executive with
the day-to-day running of Chapter 9 institutions.
However, it is important to note that section 181(5) of the
Constitution states that Chapter 9 ‘institutions are accountable to the
National Assembly, and must report on their activities and the
performance of their functions to the Assembly at least once a year’.
Given that Chapter 9 institutions are required to account to the
Assembly, this is sometimes wrongly taken to mean that they are
subservient to the Assembly. However, if independence means
anything, it means that the Assembly cannot interfere in the day-to-day
running of the Chapter 9 institutions. This occurs where these
institutions are viewed as part of the government instead of as
independent institutions with their own unique place in the separation
of powers architecture set up by the Constitution. Section 181(5) does,
however, require the Chapter 9 institutions to report on their activities
to the Assembly and to account for the manner in which they are
managed and how they spend their money. This ensures that the
Chapter 9 institutions remain accountable to the elected branch of
government, while remaining separate and independent from it. The
provisions of section 185 thus strike a balance between the need to
protect their independence, on the one hand, and the need to ensure
that the institutions are managed in a responsive and accountable
manner, on the other.

7.3 The Public Protector – a special case?

Chapter 9 of the Constitution establishes several institutions to promote
and protect human rights, including the South African Human Rights
Commission, the Commission for Gender Equality and the
Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities. While these institutions can
potentially play an important role in promoting a rights-based culture
in South Africa, they have not always done so in practice. Instead, the
Auditor-General, the Electoral Commission and the Public Protector
have played a more decisive role in the development of South Africa’s
democracy. Although all three institutions have played a decisive role in
the development of South Africa’s democracy, the office of the Public
Protector has attracted the most attention and has been the most
controversial. This is largely due to its extensive powers to investigate
maladministration and corruption (further expanded by the Public
Protector Act). In addition, it is also because of a protracted legal fight
about whether its remedial action is binding and because it often finds
wrongdoing on the part of very powerful members of the legislature and
executive, including the President of the country. Given these factors, it
can be argued that the office of the Public Protector has emerged,
politically at least, as the most important Chapter 9 institution – a
special case. It is for this reason that we will discuss the powers and
functions of this institution in more detail than any of the other Chapter
9 institutions.
The important role played by the Public Protector in South Africa’s
democracy has been confirmed by the courts. For example, in Economic
Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly and Others,56
the Constitutional Court held, that ‘the institution of the Public
Protector is pivotal to the facilitation of good governance in our
constitutional dispensation’. It plays a highly sensitive and important
role, the court held, given ‘the kind of complaints, institutions and
personalities likely to be investigated’ and is thus deserving of
constitutionally imposed assistance and protection. In the Economic
Freedom Fighters judgment, Chief Justice Mogoeng Mogoeng
summarised the role of the Public Protector in the following emotive
passage:
The Public Protector is thus one of the most invaluable constitutional gifts to
our nation in the fight against corruption, unlawful enrichment, prejudice and
 impropriety in State affairs and for the betterment of good governance. The
tentacles of poverty run far, wide and deep in our nation. Litigation is
prohibitively expensive and therefore not an easily exercisable constitutional
option for an average citizen. For this reason, the fathers and mothers of our
Constitution conceived of a way to give even to the poor and marginalised a
voice, and teeth that would bite corruption and abuse excruciatingly. And that
is the Public Protector. She is the embodiment of a biblical David, that the
public is, who fights the most powerful and very well resourced Goliath, that
impropriety and corruption by government officials are. The Public Protector is
one of the true crusaders and champions of anti corruption and clean
governance.57

The office of the Public Protector is similar to that of an ombudsman in

other jurisdictions - although it has far more extensive powers than
most ombudsmen.58 The Public Protector is thus empowered to
investigate complaints by citizens concerning the administrative
actions of the state59 mostly by receiving ‘complaints from aggrieved
citizens against government officials or agencies, investigate them,
where necessary recommend [or order] corrective measures in order to
remedy the grievances, and issue reports’.60 To enable it to fulfill these
functions, section 182(1) of the Constitution provides that the Public
Protector has the power, as regulated by national legislation:61
• 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
• to report on that conduct
• to take appropriate remedial action.

The Public Protector also has the additional powers and functions
prescribed by national legislation.62 It is important to note that the
Public Protector Act63 also allows the Public Protector to investigate
matters on his or her own initiative. While the Public Protector mostly
investigates complaints received from the public, he or she need not
wait for a complaint to be lodged before investigating a matter.64 This
was confirmed by the Supreme Court of Appeal, which held that:
The Act makes it clear that while the functions of the Public Protector include
those that are ordinarily associated with an ombudsman they also go much
 beyond that. The Public Protector is not a passive adjudicator between citizens
and the state, relying upon evidence that is placed before him or her before
acting. His or her mandate is an investigatory one, requiring pro-action in
appropriate circumstances. Although the Public Protector may act upon
complaints that are made, he or she may also take the initiative to commence
an enquiry, and on no more than ‘information that has come to his or her
knowledge’ of maladministration, malfeasance or impropriety in public life.65

When the Public Protector conducts an investigation, he or she is not

entitled to be ‘passive, supine and static’ in his or her approach. It is
furthermore not permitted to narrow the scope of investigations to the
point that they do not meaningfully address the allegations being
investigated.66 As the High Court explained in Democratic Alliance v
Public Protector; Council for the Advancement of the South African
Constitution v Public Protector:
It follows that when the PP receives complaints of impropriety or abuse of
public office, she is obliged to use the powers vested in her. This will include her
power to call for assistance from organs of state, or to refer matters to other
appropriate authorities, to ensure that the complaint is properly and effectively
addressed. Where an investigation is required, it should be conducted as
comprehensively as possible, in order to inspire public confidence that the
truth has been discovered, that her reports are accurate, meaningful and
reliable, and that the remedial action that she takes is appropriate.67

The Act allows the Public Protector to investigate ‘maladministration in

connection with the affairs of government at any level’,68 as well as
maladministration in the affairs of other state-owned enterprises like
Eskom, the SABC and Prasa.69 The Public Protector is also entitled to
investigate ‘abuse or unjustifiable exercise of power or unfair,
capricious, discourteous or other improper conduct or undue delay by a
person performing a public function’,70 and other acts or omissions by
government employees, or persons performing a public function,
‘which results in unlawful or improper prejudice to any other person’.71
The matters listed above would not necessarily amount to criminal
conduct. The Public Protector can rely on these provisions to assist
citizens who have not received courteous, efficient and effective service
from government officials. However, the Act extends the powers of the
Public Protector further to investigate the crime of corruption related to
public money in terms of the Prevention and Combatting of Corrupt
Activities Act,72 as well as allegations of improper or unlawful
enrichment in connection with the affairs of government.73 This means
that there is a potential overlap between the powers of the Public
Protector and the powers of the Directorate for Priority Crime
Investigation (known as the Hawks)74 and it is for this reason that the
Act allows the Public Protector at any time prior to, during or after an
investigation to refer the matter to the Hawks or another branch of the
South African Police Service and to the National Prosecuting Authority
for further investigation and prosecution.75 The office of the Public
Protector itself cannot prosecute anyone and is also not empowered by
the Public Protector Act to instruct the NPA to prosecute anyone.76
The Executive Members Ethics Act77 bestows another important and
politically significant power exclusively on the office of the Public
Protector, namely the power to investigate any alleged breach of the
Executive Members Ethics Code.78 This Code binds the President and
his or her cabinet at national level and Premiers and their executive
councils at provincial level.79 The Code regulates conflicts of interests80
and also prohibits those bound by it from wilfully misleading the
legislature and the President or Premier to whom they account.81 From
the above it must be clear that the Constitutional Court was correct
when it stated that the Public Protector has wide powers ‘that leave no
lever of government power above scrutiny, coincidental
“embarrassment” and censure’.82 According to the Constitutional Court:
In the execution of her investigative, reporting or remedial powers, she is not to
be inhibited, undermined or sabotaged. When all other essential requirements
for the proper exercise of her power are met, she is to take appropriate
remedial action. Our constitutional democracy can only be truly strengthened
when: there is zero-tolerance for the culture of impunity; the prospects of good
governance are duly enhanced by enforced accountability; the observance of
the rule of law; and respect for every aspect of our Constitution as the supreme
law of the Republic are real. Within the context of breathing life into the
remedial powers of the Public Protector, she must have the resources and
capacities necessary to effectively execute her mandate so that she can indeed
strengthen our constitutional democracy.83
However, it is important to note that while the Public Protector has
extensive powers to investigate wrongdoing by members of the
executive, public officials and officials of state-owned enterprises, this
power is not unlimited. The Public Protector is not permitted to
investigate private companies unless it is in relation to the spending of
public money. Moreover, unless the Public Protector decides there are
special circumstances, he or she may not entertain a complaint unless it
is reported to the Public Protector within two years from the occurrence
of the incident or matter concerned.84 The Public Protector is also not
empowered to investigate the performance of judicial functions by any
court of law.85
Given the extensive powers bestowed on the Public Protector and
given the fact that he or she will from time to time investigate very
powerful public office-bearers, it is not surprising that in the past those
who found themselves at the wrong end of the Public Protector
questioned the extent of these powers. As the Constitutional Court
noted, an unfavourable finding of unethical or corrupt conduct coupled
with remedial action, ‘will probably be strongly resisted in an attempt to
repair or soften the inescapable reputational damage. It is unlikely that
unpleasant findings and a biting remedial action would be readily
welcomed by those investigated.’86 For this reason many individuals and
institutions implicated in wrongdoing by the Public Protector argued
that the findings were wrong and, therefore, that they were not going to
implement the remedial action imposed by the Public Protector.87 The
Constitutional Court eventually confirmed that the remedial action
imposed by the Public Protector will often be binding.88 It did so in a
case that arose from the Public Protector’s report on the use of public
funds to pay for renovations at former President Jacob Zuma’s Nkandla
home. The Public Protector found that several improvements at the
home – including a swimming pool, an amphitheatre and a cattle kraal
– were not security-related features and, consequently, that the state
should not have paid for them. The report concluded that the President
and his family were unduly enriched as a result. The Public Protector
then took remedial action against the President by ordering him to take
steps with the assistance of the National Treasury and the South African
Police Services to determine the reasonable cost of the measures not
related to security and to repay a reasonable percentage of that cost. The
President refused to do so, pointing to investigations by an ad hoc
committee of the National Assembly as well as an investigation by one
of his cabinet ministers who absolved him from liability. In order to
force the President to comply with the remedial action, two political
parties (the Economic Freedom Fighters and the Democratic Alliance)
approached the Constitutional Court and asked it to order that the
Public Protector’s remedial action was binding.89 The Constitutional
Court agreed that in order to be effective, the Public Protector’s
remedial action would often have to be binding because:
If compliance with remedial action taken were optional, then very few culprits,
if any at all, would allow it to have any effect. And if it were, by design, never to
have a binding effect, then it is incomprehensible just how the Public Protector
could ever be effective in what she does and be able to contribute to the
strengthening of our constitutional democracy. The purpose of the office of the
Public Protector is therefore to help uproot prejudice, impropriety, abuse of
power and corruption in State affairs, all spheres of government and State-
controlled institutions.90

The Court held that the Public Protector’s power to take remedial action
is primarily sourced in the Constitution – not in the Public Protector
Act.91 Whether the remedial action is binding or not was therefore a
constitutional question. The Court interpreted the relevant
constitutional provisions and held that these must be read as allowing
the Public Protector to impose ‘a proper, fitting, suitable and effective
remedy’ so as to ensure that the remedial action would cure ‘the root
cause of the complaint’.92 This requires that the remedial action be
binding in some, but not all, cases. Whether it is binding or not will
depend on the nature of the issue under investigation, the findings
made, and the particular kind of remedial action taken.93 If the remedial
action is phrased as a recommendation, it may not be binding, but
when it is phrased as an instruction it is likely to be binding. When
remedial action is binding, compliance is not optional and the remedial
action taken against those under investigation cannot be ignored
without any legal consequences.94
 The fact that the remedial action imposed by the Public Protector
will often be binding does not mean that those affected by the findings
and remedial action are prohibited from inquiring into the correctness
of those aspects of the report they disagree with.95 However, those
affected are not permitted to use the inquiry to justify non-compliance
with the binding remedial action imposed by the Public Protector, as
happened in the Nkandla case. If, the inquiry conducted in this ‘parallel
process’ contradicts the finding and remedial action imposed by the
Public Protector, the only option open to those affected by the report
would be either to comply with it, or to approach a court to review and
set aside the report and the remedial action contained in it.96 As the
Constitutional Court explained when discussing the situation that arose
in the matter of the state-sponsored renovations at the former
President’s house at Nkandla:97
Only after a court of law had set aside the findings and remedial action taken by
the Public Protector would it have been open to the President to disregard the
Public Protector’s report. His difficulty here is that … he did not challenge the
report through a judicial process. He appears to have been content with the
apparent vindication of his position by the Minister’s favourable
recommendations and considered himself to have been lawfully absolved of
liability … Absent a court challenge to the Public Protector’s report, all the
President was required to do was to comply.98

Was it appropriate for the Constitutional

Court to rule that the Public Protector’s
remedial action is binding?
The Constitutional Court judgment in Economic
Freedom Fighters v Speaker of the National Assembly
and Others; Democratic Alliance v Speaker of the
National Assembly and Others has been widely
praised for holding that the Public Protector’s remedial
action would often be binding. However, the judgment
has also been criticised for the manner it addressed
the problem of non-compliance. Woolman argues that
it was not strictly necessary for the Constitutional Court
to resolve the question about the binding effect of the
Public Protector in such a sweeping manner.99
Contending that the judgment arose only because of
the ‘persistent flouting of the rule of law by the
President, virtually all his Ministers and other bagmen
in high office that attracted the investigations of the
Public Protector’, he argues that the ‘courts might,
arguably, have taken a “one case at a time” approach
instead of offering a “grand theory” regarding the
Office of the Public Protector’s powers. … That result
would have placed the burden of seeking court-
enforcement of recommendations and remedies on the
Public Protector’.100 However, in the absence of a
culture of respect for the rule of law, it is not far-
fetched to assume that the findings and remedial
action of the Public Protector, would often have been
ignored and would have required the office to spend
many millions of Rands to have its remedial action
enforced.
However, Woolman also raised a conceptual
concern with the judgment, noting that it runs the risk
of turning ‘an investigatory and problem-solving body –
meant to mediate disputes between the state and its
50 million citizens – into an institution that might act,
on rare occasion, as detective, prosecutor, judge and
jury’.101 He then warns:
It is possible that the latter set of powers could be used for
[malevolent] ends against minority parties, government officials
or others exercising public power who have fallen out of favour
with the governing party. Given the unconstitutional behaviour of
the police and other more covert parts of the state’s security
apparatus, these concerns are hardly hypothetical.102

Woolman argues, however, that this fear may be

overstated as the findings and remedial actions of the
Public Protector are reviewable by the courts, which
 means that in the event that the Public Protector
abuses his or her power or oversteps the mark, the
courts will review and set aside his or her reports. This
has indeed occurred on several occasions since the
Constitutional Court held that the Public Protector’s
remedial action is binding. In Public Protector v South
African Reserve Bank103 the Constitutional Court went
further in a case in which a newly appointed Public
Protector unlawfully ordered Parliament to amend the
Constitution. In this case the Constitutional Court
confirmed the order of the High Court that the Public
Protector pay at least a certain percentage of the costs
incurred on a punitive scale. This unusual step was
taken because, as the majority in the Constitutional
Court held, her conduct in the matter was
‘extraordinary’ and worthy of a court’s rebuke.104 It
summarised the problems with the way in which the
Public Protector handled the investigation and
subsequent court review as follows:
Regard must be had to the higher standard of conduct expected
from public officials, and the number of falsehoods that have
been put forward by the Public Protector in the course of the
litigation. This conduct included the numerous “misstatements”,
like misrepresenting, under oath, her reliance on evidence of
economic experts in drawing up the report, failing to provide a
complete record, ordered and indexed, so that the contents
thereof could be determined, failing to disclose material meetings
and then obfuscating the reasons for them and the reasons why
they had not been previously disclosed, and generally failing to
provide the court with a frank and candid account of her conduct
in preparing the report.105

Although the Public Protector’s power to take appropriate remedial

action – even binding remedial action – is wide, it is ‘certainly not
unfettered’ and the remedial action, therefore, is ‘always open to
judicial scrutiny’.106 Those affected can approach a court to review and
set aside the findings and remedial action taken by the Public Protector
on narrow grounds discussed below. However, they cannot ask the
court to reconsider the merits of the report in the form of a substantive
appeal. Until this was clarified by the Supreme Court of Appeal, it was
unclear whether the findings and remedial action could be reviewed in
terms of the Promotion of Administrative Justice Act (PAJA),107 or
whether it could only be reviewed on the basis of legality. In Minister of
Home Affairs and Another v Public Protector of the Republic of South
Africa the Supreme Court of Appeal pointed out that the Office of the
Public Protector ‘is not a department of state or administration and
neither can it be said to be part of the national, provincial or local
spheres of government.’108 It is an independent body that is answerable
only to the National Assembly and, therefore, it is not an organ of
state.109 The Court thus held that decisions of the Public Protector are
not administrative in nature, and hence do not constitute
administrative action. This means that the decisions of the Public
Protector cannot be reviewed in terms of PAJA.110 This finding further
narrows the grounds on which the findings and remedial action can be
set aside by the courts. When challenging either the findings or
remedial action in a report issued by the Public Protector the review
must be conducted in terms of the principle of legality.111 In short this
means the Public Protector must, like any public functionary, exercise
his or her ‘powers and functions lawfully in compliance with her
constitutional and statutory mandate and duties’.112 The findings and
remedial action can thus be set aside primarily on the grounds that they
are unlawful, vague or irrational.
In terms of the requirement that the Public Protector must
investigate a matter in a rational way, and that his or her findings and
remedial action must be rational, it is important to be mindful of the
purpose of Public Protector investigations. In Democratic Alliance v
Public Protector; Council for the Advancement of the South African
Constitution v Public Protector113 the High Court was asked to review
and set aside the report of the Public Protector into the Free State
Department of Agriculture’s Vrede Integrated Dairy Project (the so-
called ‘Estina dairy scandal’) on the ground that the Public Protector
had failed to investigate the complaints adequately. It was argued that
this failure to investigate adequately was irrational. The court held that
when deciding whether the exercise of public power was rational, one
must first look at the purpose for which the power was granted, as a
decision must be rationally related to the purpose for which the power
was given, otherwise it is, in effect, arbitrary and inconsistent with this
requirement.114 When reviewing the findings or remedial action
imposed by the Public Protector the starting point is to determine what
the purposes are of the Public Protector’s powers and functions
generally, and his or her powers to investigate and take remedial action
specifically.115 The High Court answered this question as follows:
The purpose of her [or his] specific power to investigate and report is to
discover and expose evidence of corruption and prejudice, with a view to
maintaining an effective public service and good governance. The purpose of
her power to devise and implement remedial action is to remedy instances of
corruption and prejudice, to ensure that those responsible are held
accountable and that those affected obtain appropriate relief and to prevent re-
occurrence of the same conduct.116

This means that where the investigation is ineffectual and there is no

proper investigation or where the remedial action is not rationally
related to the aim of correcting mistakes, the report or remedial action
may be found to be irrational and unlawful.
Apart from the principle of legality, the findings and remedial action
of the Public Protector can also be set aside on the grounds that they
infringe the doctrine of the separation of powers. In South African
Reserve Bank v Public Protector and Others,117 for example, the Reserve
Bank applied, on an urgent basis, for an order setting aside the Public
Protector’s remedial action instructing Chairperson of the National
Assembly Portfolio Committee on Justice and Correctional Services to
amend the Constitution to alter the constitutional mandate of the
Reserve Bank in accordance with wording provided by the Public
Protector. The court held that the Public Protector did not have the
power to investigate the mandate of the Reserve Bank and, therefore,
was not authorised to impose remedial action in this regard.118 It further
held that the remedial action trenched ‘unconstitutionally and
irrationally on Parliament’s exclusive authority’.119 The enactment of
national legislation is within the exclusive constitutional domain of
Parliament and the Public Protector does not have the power to
prescribe to Parliament how to exercise its discretionary legislative
powers. The remedial powers of the Public Protector ‘are derived from
the Constitution’, which means he or she ‘operates under the
Constitution and not over it’.120 The court then concluded that the Public
Protector does not have the power to order an amendment of the
Constitution.
The remedial action therefore violates the doctrine of the separation of powers
guaranteed by section 1(c) of the Constitution. The principle requires
constitutionally established institutions to respect the confines of their own
powers and not to intrude into the domain of others. An order directing
Parliament to amend the Constitution and going so far as to prescribe the
wording of that amendment offends the principle of the separation of powers
mostly by seeking to fetter in advance the legislative discretion vested in
Parliament. It removes from the members of Parliament their right and
obligation to exercise an independent judgement when voting on proposed
legislation. It potentially compels them to vote against their conscience and
possibly breach their oath of office. Worse still, it forces the legislature to adopt
an amendment to the Constitution which may circumvent the constitutional
procedures enacted for that purpose.121

The requirement that the Public Protector must respect the provisions
of the Constitution and must not intrude into the domain of the other
branches of government, may also find application in other contexts.
For example, the Constitution bestows exclusive power on the President
to appoint or remove members of his or her cabinet.122 If the Public
Protector orders the President to remove a member of the cabinet after
making a finding that he or she is guilty of maladministration, such an
order may well violate the separation of powers doctrine.
From the above it must be clear that the Public Protector has wide
powers to investigate maladministration and corruption in state affairs
and to impose effective remedial action to cure the root cause of the
complaint. Courts can review and set aside the findings and remedial
action if these do not comply with the principle of legality, which means
that the courts may play an important role in holding the Public
Protector accountable. Given, however, that the reports, findings and
remedial action of the Public Protector can be reviewed only on the
limited ground of legality, and cannot be appealed so that a court can
consider the correctness of the findings and remedial action, the courts
will not always be in a position to correct mistakes. In this sense the
Public Protector’s position differs markedly from that of the judiciary as
judicial decisions can be appealed and higher courts can overturn the
decisions of lower courts on much broader grounds than mere legality.
This means that the Public Protector is in a unique position in that his
or her findings will often be binding – just like the findings of a court –
but cannot be overturned merely because they are flawed.

SUMMARY

The Constitution creates a set of Chapter 9 institutions, including the

Human Rights Commission, the Public Protector, the Auditor-General
and the Electoral Commission, to promote and safeguard democracy.
These institutions are not easily slotted into the traditional separation of
powers model. While the institutions are independent and have their
independence constitutionally guaranteed and further enhanced in
legislation, they are also constitutionally required to report on their
activities and the performance of their functions to the NA at least once
a year and to account to the NA.
The Constitutional Court has nevertheless confirmed that these
institutions are not part of government and enjoy both institutional and
administrative independence from government. Although the
institutions are independent, they are not in the same position as the
judiciary as they do not usually make binding findings that can be
enforced in a similar manner to that of the courts. They usually help to
hold the government and officials accountable and make
recommendations about remedial action.

1 S 181(1) of the Constitution.

2 Murray, C (2006) The Human Rights Commission et al: What is the role of South Africa’s
Chapter 9 institutions? Potchefstroom Electronic Law Journal 9(2):122–47 at 125.
3 S 181(2) of the Constitution.
4 S 181(5) of the Constitution.
5 See Holness, D and Vrancken, P ‘Non-judicial enforcement of human rights’ in Govindjee,
A and Vrancken, PHG (eds) (2009) Introduction to Human Rights Law 240.
6 See Ntlama, N (2005) Unlocking the future: Monitoring court orders in respect of socio-
economic rights THRHR 68(1):81–9 at 83.
7 See generally De Vos, P ‘Balancing independence and accountability: The role of Chapter 9
institutions in South Africa’s constitutional democracy’ in Chirwa, DM and Nijzink, L (eds)
(2012) Accountable Government in Africa: Perspectives from Public Law and Political
Studies 160–77.
8 The Human Rights Commission and the Public Protector are two such institutions.
9 ‘We did not refuse to cooperate with public protector in Ramaphosa probe: Absa’ 20 July
2019 Times Live accessed on 24 October 2019 at https://www.timeslive.co.za/politics/2019-
07-20-we-did-not-refuse-to-cooperate-with-public-protector-in-ramaphosa-probe-absa/.
10 Mngadi, M ( 2018) KZN AG halts eThekwini audit following ‘death threats’, News24,
accessed on 24 October 2019 at https://www.news24.com/news24/southafrica/news/kzn-
auditor-general-halts-ethekwini-metro-audit-following-death-threats-recalls-all-staff-
20180525.
11 De Vos (2009) 163.
12 S 181(2) of the Constitution.
13 S 239 of the Constitution.
14 The Constitution also guarantees the independence of other institutions such as the Public
Service Commission (s 196(2)–(3)); the Broadcasting Authority (s 192) and the Financial
and Fiscal Commission (s 220(2)). There is no explicit provision for the independence of
the Pan South African Language Board which is established in s 6 of the Constitution.
Furthermore, legislation that creates these institution also provides for further protection of
the independence of these institutions. Thus, s 9(1)(b) of the Public Protector Act 23 of 1994
prohibits any person from insulting the Public Protector or the Deputy Public Protector and
from doing anything in connection with an investigation ‘which, if the said investigation
had been proceeding in a court of law, would have constituted contempt of court’.
15 S 9(1)(a) of the Public Protector Act.
16 S 9(1)(b) of the Public Protector Act.
17 S 11(1) of the Public Protector Act.
18 Act 25 of 2004.
19 S 51(1)(a)–(c).
20 S 193(1) of the Constitution.
21 (393/2015) [2015] ZASCA 156; [2015] 4 All SA 719 (SCA); 2016 (2) SA 522 (SCA) (8 October
2015) para 30.
22 S 193(3) of the Constitution.
23 S 193(2) of the Constitution.
24 S 193(4) of the Constitution.
25 S 193(5)(b)(i) of the Constitution.
26 S 193(5)(b)(ii) of the Constitution.
27 S 193(6) of the Constitution.
28 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006).
29 Mbiada, CJT (2017) The Public Protector as a Mechanism of Political Accountability: The
Extent of its Contribution to the Realisation of the Right to Access Adequate Housing in
 South Africa Potchefstroom Electronic Law Journal 2017 (20) at 8.
30 Ibid. See also Bazana, S (2016) How to fix the deeply flawed public protector appointment
process The Conversation, August 30, accessed on 25 October 2019 at
https://theconversation.com/south-africa-should-use-a-more-scientific-approach-to-
appoint-its-public-protector-64077
31 Bazana (2016).
32 See s 6 of the Electoral Commission Act 51 of 1996.
33 Mbiada at 9.
34 S 194(1) of the Constitution.
35 See Economic Freedom Fighters and Others v Speaker of the National Assembly and Another
(CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December
2017).
36 Economic Freedom Fighters para 179.
37 Economic Freedom Fighters para 180. See Public Protector v Speaker of the National
Assembly and Others (2107/2020) [2020] ZAWCHC 117 (9 October 2020) para 11.
38 S 194(2)(a) of the Constitution.
39 S 194(2)(b) of the Constitution.
40 S 194(3)(a) of the Constitution.
41 S 194(3)(b) of the Constitution.
42 Independent Electoral Commission v Langeberg Municipality (CCT 49/00) [2001] ZACC 23;
2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June 2001) and New National Party v
Government of the Republic of South Africa and Others (CCT9/99) [1999] ZACC 5; 1999 (3)
SA 191; 1999 (5) BCLR 489 (13 April 1999).
43 S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).
44 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June 2001).
45 S 239(2) of the Constitution defines an organ of state as follows:
(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation, but does not include a court or a judicial officer.
46 Langeberg Municipality paras 28–9.
47 Langeberg Municipality para 31. See also Parliament of the Republic of South Africa (2007)
Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, A
report to the National Assembly of the Parliament of South Africa, Cape Town, South Africa,
9 available at
https://www.parliament.gov.za/storage/app/media/PRandNews/content/11.09.15_ISD%2
0Publication_FINAL.pdf.
48 Langeberg Municipality para 31.
49 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999) para 98. See
also Langeberg para 29.
50 New National Party para 97.
51 New National Party para 96.
52 New National Party para 99.
53 New National Party para 99:
The second factor, “administrative independence”, implies that there will be control
over those matters directly connected with the functions which the Commission has
to perform under the Constitution and the Act. The executive must provide the
assistance that the Commission requires “to ensure [its] independence,
impartiality, dignity and effectiveness”. The department cannot tell the Commission
how to conduct registration, whom to employ, and so on; but if the Commission
asks the government for assistance to provide personnel to take part in the
registration process, government must provide such assistance if it is able to do so.
If not, the Commission must be put in funds to enable it to do what is necessary.
54 New National Party para 95.
55 New National Party para 99.
56 (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC)
(31 March 2016) para 50.
57 Economic Freedom Fighters para 52.
58 Minister of Home Affairs and Another v Public Protector of the Republic of South Africa
(308/2017) [2018] ZASCA 15; [2018] 2 All SA 311 (SCA); 2018 (3) SA 380 (SCA) (15 March
2018) para 15.
59 Mbiada (2017) 14.
60 Mbiada (2017) 14.
61 S 182(1) of the Constitution.
62 S 182(2) of the Constitution.
63 Act 23 of 1994.
64 S 6(4)(a) of the Public Protector Act.
65 The Public Protector v Mail & Guardian Ltd and Others (2011 (4) SA 420 (SCA)) [2011]
ZASCA 108; 422/10 (1 June 2011) para 9. See also South African Broadcasting Corporation
Soc Ltd and Others v Democratic Alliance and Others (393/2015) [2015] ZASCA 156; [2015] 4
All SA 719 (SCA); 2016 (2) SA 522 (SCA) (8 October 2015) para 43.
66 Democratic Alliance v Public Protector; Council for the Advancement of the South African
Constitution v Public Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 132; [2019] 3 All
SA 127 (GP); 2019 (7) BCLR 882 (GP) (20 May 2019) para 34.
67 Democratic Alliance para 36.
68 S 6(4)(a)(i) of the Public Protector Act.
69 S 6(5)(a) of the Public Protector Act.
70 S 6(4)(a)(ii) of the Public Protector Act.
71 S 6(4)(a)(v) of the Public Protector Act.
72 S 6(4)(a)(iii) of the Public Protector Act. Act 12 of 2004.
73 S 6(4)(a)(iv) of the Public Protector Act.
74 See s 17B and 17D of the South African Police Service Act 68 of 1995.
75 S 6(4)(c)(i).
76 President of the Republic of South Africa and Another v Public Protector and Others 2020 (5)
BCLR 513 (GP) para 189. Such an instruction is not permitted by the Public Protector Act as
 this would trench on the constitutionally guaranteed independence of the NPA as
discussed in chapter 6.
77 Act 82 of 1998.
78 S 3(1).
79 S 2(1).
80 Proc. No. 41 of 28 July 2000: Executive Ethics Code (Government Gazette No. 21399), section
3.
81 S 2.3 of the Executive Ethics Code states: ‘Members of the Executive may not: (a) wilfully
mislead the legislature to which they are accountable; (b) wilfully mislead the President or
Premier, as the case may be; (c) act in a way that is inconsistent with their position …’
82 Economic Freedom Fighters para 53.
83 Economic Freedom Fighters para 54.
84 S 6(9) of the Public Protector Act.
85 S 6(6) of the Public Protector Act.
86 Economic Freedom Fighters para 55.
87 See for example South African Broadcasting Corporation Soc Ltd and Others v Democratic
Alliance and Others (393/2015) [2015] ZASCA 156; [2015] 4 All SA 719 (SCA); 2016 (2) SA
522 (SCA) (8 October 2015).
88 Economic Freedom Fighters para 68.
89 Mbiada at 13.
90 Economic Freedom Fighters para 56.
91 Economic Freedom Fighters para 64.
92 Economic Freedom Fighters para 68.
93 Economic Freedom Fighters para 70.
94 Economic Freedom Fighters para 73.
95 Economic Freedom Fighters para 78.
96 Economic Freedom Fighters para 81.
97 Economic Freedom Fighters paras 81 and 82.
98 Economic Freedom Fighters paras 81 and 82.
99 Woolman, S (2016) A Politics of Accountability: How South Africa’s Judicial Recognition of
the binding Legal Effect of the Public Protector’s Recommendations Had a Catalysing Effect
that Brought Down a President Constitutional Court Review 8: 155 at 176.
100 Woolman (2016) 176.
101 Woolman (2016) 177.
102 Woolman (2016) 177.
103 (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC) (22 July 2019).
104 South African Reserve Bank para 226.
105 South African Reserve Bank para 237.
106 South African Reserve Bank para 71.
107 Act 3 of 2000.
108 (308/2017) [2018] ZASCA 15; [2018] 2 All SA 311 (SCA); 2018 (3) SA 380 (SCA) (15 March
2018).
109 Minister of Home Affairs para 34.
110 Act 3 of 2000.
111 Minister of Home Affairs para 37.
112 Democratic Alliance para 30.
113 (11311/2018; 13394/2018) [2019] ZAGPPHC 132; [2019] 3 All SA 127 (GP); 2019 (7) BCLR
882 (GP) (20 May 2019).
114 Democratic Alliance para 149.
115 Democratic Alliance para 150.
116 Democratic Alliance para 151.
117 (43769/17) [2017] ZAGPPHC 443; [2017] 4 All SA 269 (GP); 2017 (6) SA 198 (GP) (15 August
2017).
118 South African Reserve Bank para 41.
119 South African Reserve Bank para 43.
120 South African Reserve Bank para 43.
121 South African Reserve Bank para 44.
122 S 91(2) of the Constitution.
MULTISPHERE GOVERNMENT

8.1 The division of powers between spheres of government: general principles

8.1.1 Introduction
8.1.2 Historical background
8.1.3 The Constitutional Principles
8.1.4 The principles of co-operative government
8.1.5 Co-operative government and the co-ordination of intergovernmental relations

8.2 The division of legislative and executive power between the national and provincial spheres
of governments
8.2.1 Introduction
8.2.2 The objectives and structure of provincial government
8.2.3 Determining legislative competence: the pith and substance test
8.2.4 The resolution of conflicts between the national and provincial spheres
8.2.4.1 Conflicts related to concurrent competences set out in Schedule 4
8.2.4.2 Conflicts related to exclusive provincial competences in Schedule 5
8.2.5 National intervention in provincial administration

8.3 The division of legislative and executive power between the national and provincial and local
spheres of government
8.3.1 Introduction
8.3.2 The objectives of local government
8.3.3 The structure of local government
8.3.4 Municipal powers
8.3.4.1 Original municipal powers
8.3.4.2 Assigned municipal powers
 8.3.4.3 Incidental municipal powers
8.3.5 Conflicting national, provincial and municipal laws
8.3.6 Supervision of local government

8.4 Financial affairs

8.4.1 Introduction
8.4.2 The division of fiscal powers
8.4.3 The collection of revenue
8.4.4 The distribution of revenue
8.4.5 The budgetary process
8.4.6 The central bank
8.4.7 Procurement
8.4.7.1 Introduction
8.4.7.2 The Preferential Procurement Policy Framework Act 5 of 2000

Summary

8.1 The division of powers between spheres of

government: general principles

8.1.1 Introduction
An important characteristic of the Constitution is that it not only divides
power vertically between the legislative, executive and judicial
branches of government in terms of the separation of powers doctrine.
It also divides power horizontally between the national, provincial and
local spheres of government, thus establishing a quasi-federal system of
government. Section 40(1) of the Constitution provides in this respect
that ‘[i]n the Republic, government is constituted as national, provincial
and local spheres of government which are distinctive, interdependent
and interrelated’. In this chapter we deal with this horizontal division of
power.
What must be emphasised from the outset is that the term ‘sphere’
of government has replaced the previous term ‘level’ of government. An
important consequence of this change in terminology is that all spheres
have an equal constitutional status1 as it derives its authority directly
from the Constitution.2 As the Constitutional Court pointed out in City
of Cape Town and Others v Robertson and Others,3 the Constitution has
moved away from a hierarchical division of governmental power. It has
ushered in a new vision of government in which the sphere of local
government is interdependent, ‘inviolable and possesses the
constitutional latitude within which to define and express its unique
character’ subject to constraints permissible under our Constitution.4
This means, the Constitutional Court pointed out further, that:
A municipality under the Constitution is not a mere creature of statute
otherwise moribund save if imbued with power by provincial or national
legislation. A municipality enjoys ‘original’ and constitutionally entrenched
powers, functions, rights and duties that may be qualified or constrained by law
and only to the extent the Constitution permits. Now the conduct of a
municipality is not always invalid only for the reason that no legislation
authorises it. Its power may derive from the Constitution or from legislation of
a competent authority or from its own laws.5

Presently, each sphere has geographic, functional and institutional

integrity and has powers conferred on it by the Constitution. Moreover,
no sphere may unreasonably interfere in the powers and functions of
any other sphere. Some ambiguity exists, however, with respect to the
power of a sphere to intervene in the affairs of another sphere.
Therefore, in this chapter we identify the exact powers allocated to each
sphere of government, address the relationship between the different
spheres of government and explore the constitutional management of
conflicts between the various spheres of government.
It is important to understand that in a federal or quasi-federal
system, the division of power between different spheres of government
may be based either on a divided model of federalism or an integrated
model of federalism.6
In a divided model of federalism, the subject matters in respect of
which policies and laws may be made are strictly divided between the
different spheres of government. Each sphere, therefore, has its own
exclusive powers and there are very few, if any, concurrent or shared
powers. In this model, the policies and laws made by each sphere will
also be implemented and administered by their own separate civil
services and departments of state. Australia, Canada and the United
States are examples of a divided model of federalism.7
 In an integrated model of federalism, some subject matters are
allocated exclusively to one sphere of government, but most are
concurrent or shared. The subject matters in respect of which policies
and laws may be made, therefore, are not strictly divided among the
different spheres of government. In this model, the framework policies
and laws made by the central sphere of government may be
complemented by provincial or local policies and laws and must be
implemented and administered by the provincial or local spheres of
government. Germany and South Africa are examples of an integrated
model of federalism.8 Although we contend that South Africa could
probably best be described as an integrated quasi-federal state, it is
important to note that the Constitution itself studiously avoids
describing the system of governance in South Africa as federal or quasi-
federal.9
When we say that South Africa broadly adheres to an integrated
model of federalism, we are not saying that South Africa is a fully
fledged federal state. Throughout this chapter we will raise questions
about the nature of the relationship between the three spheres of
government. We contend that while the South African system displays
several characteristics of a federal system, it could probably 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 completely
federal system.
South Africa currently has a national government, nine provinces,
eight metropolitan councils, forty-four districts and a number of local
municipalities. A brief overview of examples of the areas of competence
of each of the spheres of government will assist in understanding why
South Africa’s integrated quasi-federal system promotes democracy by
targeting service delivery in a rational way. Justice and land are
uniquely national areas of competence. Health and education, in
contrast, are shared between the provincial and national spheres.
Provinces implement the ‘developmental functions’ of the state, such as
social development, health and education, among others. All three
spheres of government are responsible for housing and roads, but the
local sphere implements local water and local electricity distribution, in
addition to local roads and other amenities.10

8.1.2 Historical background

Prior to the colonial occupation of South Africa by the Dutch and the
British, traditional African government was divided into ‘three tiers of
authority’,11 somewhat analogous to the current three spheres of
government in South Africa. The chief was responsible for the
‘traditional central government’, the headman was responsible for the
ward, while the family head ‘exercised leadership at the level of the
family’.12 Given that colonisation introduced settler governments, ‘the
central government of the settlers became the primary source’ of power
of African leaders.13 Thereafter, at least attributable in part, to the ‘grand
design’ of the apartheid government the country was systematically
fragmented into so-called ‘self-governing’ and later ‘independent’
entities (called homelands) based on ethnic, group or tribal affiliations.
The ultimate goal of ‘grand apartheid’, therefore, was that black South
Africans would be stripped of their South African citizenship and be
afforded the citizenship of one of these ‘independent’ entities in which
they would exercise their civil and political rights.14
As such, during the process of negotiating South Africa’s Interim
Constitution, the African National Congress (ANC) and other liberation
organisations exhibited profound antipathy towards the notion of a
federal state because of the concern that a federal system would result
in the resurrection of the despised homeland system in a different
guise. There were also concerns that a rigid division of powers between
the national sphere of government and the various provincial spheres
would inhibit and frustrate the developmental and egalitarian
objectives of the new state seeking to improve the quality of life for all.
During the process of negotiations, however, the ANC leadership
started seeing the benefit and advantages of strong regional
government for the delivery of services and the political empowerment
of the citizens. It seems that exposure to models of integrated
federalism such as the German Constitution assisted in convincing the
liberation organisations that effective regional government could be
combined with strong central leadership and this was the model that
was eventually adopted.15
Some of the political groups, such as the Inkatha Freedom Party
(IFP), favoured a strong federal arrangement and advocated an
asymmetrical arrangement with maximum devolution of original power
to the KwaZulu-Natal (KZN) region. It was the inability to reach
consensus on this and other issues that caused them to boycott the
constitutional drafting process for the Interim Constitution.16 The IFP
eventually participated in the first democratic election and was the
dominant party in the KZN provincial legislature for about 10 years after
the advent of democracy. This contributed to the ending of the civil
strife in the province as the IFP, despite their limited national support,
played an important role in the provincial legislature. In this sense, the
system accommodated diverse political aspirations.

8.1.3 The Constitutional Principles

As we saw in chapter 2, the transition to democracy in South Africa took
place in two stages. An important aspect of this two-stage process was
that the final Constitution had to be consistent with 34 Constitutional
Principles agreed to by the various parties at the multi-party negotiating
process and enshrined in Schedule 4 of the interim Constitution. A
significant number of these principles dealt with the structure of
government. They provided in this respect that:
• government shall be structured at national, provincial and local
spheres17
• the powers and functions of the various spheres had to be defined in
the final Constitution and they could not be substantially less or
inferior to those provided for in the Interim Constitution18
• the functions of the national and provincial levels of government
had to include exclusive and concurrent powers19
• the allocation of a competence to either the national or provincial
spheres had to be in accordance with listed criteria20
• the national sphere was precluded from exercising its powers so as
to encroach on the geographical, functional and institutional
integrity of the provinces21
• disputes concerning legislative powers allocated by the Constitution
concurrently to the national and provincial spheres had to be
resolved by a court of law.22

A framework dealing with powers, functions and structures of local

government also had to be set out in the Constitution.23 In addition,
every sphere of government had to be guaranteed an equitable share of
revenue collected nationally to ensure that provinces and local
government were able to provide basic services and execute the
functions allocated to them.24
In Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, 1996, the
Constitutional Court held that the question of whether the powers and
functions allocated to the provinces were substantially less or
substantially inferior to those provided for in the interim Constitution
was the most difficult question it had to deal with.25 After evaluating the
allocation of the powers to various spheres of government and
assessing the breadth of the override clause that allows for national
legislation to prevail over provincial legislation in certain instances, the
Court concluded that the diminution in provincial power was
substantial and that this was inconsistent with Constitutional Principle
XVIII.26 This required the drafters to reorder the arrangements, afford
more powers to the provinces and restrict the scope of the override
clause before it met the approval of the Court. In Certification of the
Amended Text of the Constitution of the Republic of South Africa, 1996,
the Constitutional Court found that the revised override clause (section
146) was more stringently drafted and removed any presumption in
favour of national legislation.27 This, together with the adjustment of the
allocation of powers to the provinces, satisfied the Court that the
amended text complied with Constitutional Principle XVIII.
We discuss the exact allocation of powers to the various spheres of
government and the override clauses applying when there is a conflict
between the spheres of government in detail below.

8.1.4 The principles of co-operative government

As we noted in the introduction to this chapter, South Africa adheres to
an integrated model of federalism. An important consequence of this
integrated model is that mechanisms must be put in place to regulate
the overlap of power between the various spheres of government.
Although the Constitution contains a number of these mechanisms, the
most important is the principle of co-operative government. Before we
discuss this principle, however, it is important to set out the basic
structure according to which power is divided between the three
spheres of government. This structure may be summed up as follows:
First, the nine provincial governments (and all local governments)
share the power to make laws on a wide range of important matters with
the national government, such as education, the environment, health,
housing and policing. These subject matters are listed in Parts A and B
of Schedule 4 of the Constitution. The national and provincial
governments share power over the subject matters listed in Part A and
the national, provincial and local governments share power over the
subject matters listed in Part B.28
Second, in so far as the concurrent powers of the national,
provincial and local governments are concerned, the national and
provincial governments have equal law-making powers over the subject
matters listed in Part A of Schedule 4, but limited law-making powers
over the subject matters listed in Part B. While the national and
provincial governments are entitled to pass laws regulating the local
government matters set out in Part B, they are not entitled to pass laws
giving themselves the power to administer or implement those laws.
Third, if the laws made by the national and provincial governments
conflict with each other, the national law will override the provincial
law, but only if the national law satisfies the criteria set out in section
146 of the Constitution.29 If there is a conflict between a national and
provincial law, the legislative provisions do not become invalid. Instead,
section 146 is used to decide whether the provisions of the provincial
Act will prevail or whether the conflicting provisions of the national Act
will prevail.30 The provisions that do not prevail will remain in limbo
and could become operative if the conflicting provisions in the
prevailing Act are scrapped. With respect to by-laws, section 156(3) of
the Constitution states that ‘subject to section 151(4), a by-law that
conflicts with national or provincial legislation is invalid’. However, in
the event that the national or provincial legislation is inoperative
because of a conflict referred to in section 149, then the by-law is to be
regarded as valid for the time that that such legislation is inoperative.
Fourth, apart from their concurrent powers, provincial governments
also have the exclusive power to make laws on the matters set out in
Part A of Schedule 5 of the Constitution and provincial and local
governments have the exclusive power to make laws on the matters set
out in Part B of Schedule 5. These exclusive powers deal with matters of
more regional or local concern such as abattoirs, ambulance services
and liquor licences. Despite the fact that these Schedule 5 powers have
been exclusively reserved for provincial and local government, section
44(2) of the Constitution provides that the national government may
intervene and pass a law on a Schedule 5 matter if it is necessary to
achieve the objectives set out in paragraphs (a) to (e) of section 44(2)
itself.31
Fifth, the laws that are made by the national government and that
fall into the broad areas of concurrent competence must be
implemented and administered by provincial and local governments.
The primary role of provincial and local governments, therefore, is the
implementation and administration of national laws.32
Last, the national government has the plenary power to pass laws
and administer laws on any other subject matter not mentioned in
either Schedule 4 or 5. This means that the powers of provinces are
explicitly restricted to the subject matters set out in either Schedule 4 or
5, those matters that have been expressly assigned to provinces by
national legislation and those matters in respect of which a section of
the Constitution envisages the enactment of provincial legislation.33
Therefore, the powers of the national government are not restricted and
can encompass any matter not mentioned in Schedule 4 or 5.
8.1.5 Co-operative government and the co-ordination of
intergovernmental relations
Given the overlap between the legislative and executive authority of the
national, provincial and local spheres of government, the Constitution
makes provision for a system of intergovernmental co-ordination to
manage any potential conflict between the various spheres exercising
concurrent competences. This forms the heart of the system of co-
operative government. The most important rules governing this system
are set out in Chapter 3 of the Constitution. Chapter 3 of the
Constitution entrenches the notion of co-operative government that
recognises the distinctiveness, interdependence and interrelatedness of
the national, provincial and local spheres of government.34
All spheres of government – national, provincial and local – are
required to observe and adhere to the principles of co-operative
government set out in Chapter 3 of the Constitution.35 Particularly
important in this context are the principles set out in section 41. This
section provides, inter alia, that ‘[a]ll spheres of government and all
organs of state within each sphere’36 must:
• respect the constitutional status, institutions, powers and functions
of government in the other spheres37
• not assume any power or function except those conferred on them
in terms of the Constitution38
• 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 sphere39
• co-operate with each other in mutual trust and good faith.40

In addition, Chapter 3 of the Constitution also provides that an organ of

state involved in an intergovernmental dispute must make every
reasonable effort to settle the dispute by means of mechanisms and
procedures provided for that purpose, and must exhaust all remedies
before approaching a court of law to settle the dispute.41 The intention is
to foster respect and co-ordination, and not competition between the
spheres of government.42 There has been some confusion about which
bodies are bound by these provisions. Do they apply only to those
organs of state that exercise legislative and executive power in the
national, provincial and local spheres of government or do they also
apply to those organs of state that are supposed to be independent,
such as the Electoral Commission (EC), the South African Human
Rights Commission (SAHRC), the Gender Commission and so on?
After some ambivalence, there is now relative certainty as to the
bodies bound by Chapter 3. In Independent Electoral Commission v
Langeberg Municipality,43 the Constitutional Court held that the
Independent Electoral Commission (IEC) is an organ of state as defined
in section 239 of the Constitution.44 However, it is not part of
government as it is not an organ of state in the national sphere of
government. Chapter 9 entrenches the independence of the institutions
identified in this Chapter and hence these institutions cannot
simultaneously be independent of and yet part of government.45 Thus, a
dispute between a Chapter 9 institution and an organ of state in any of
the three spheres of government cannot be regarded as an
intergovernmental dispute requiring compliance with Chapter 3. The
Court stated that while it is preferable for organs of state not to litigate
against each other readily, there was no obligation on Chapter 9
institutions to follow the prescripts of Chapter 3.46 This suggests that
other independent constitutional institutions such as the National
Prosecuting Authority, the Public Service Commission and the
Financial and Fiscal Commission are similarly not bound by the
provisions of Chapter 3.
In Uthukela District Municipality and Others v President of the
Republic of South Africa and Others, the Constitutional Court confirmed
that municipalities are organs of state in the local sphere of government
while the President and Ministers are organs of state in the national
sphere.47 Thus, a dispute involving these spheres would, prior to being
referred to court, have to comply with Chapter 3. For these purposes,
the provincial executive cannot be distinguished from the national
executive and the provincial executive will be regarded as an organ of
state in the provincial sphere.
 In casu, even though the Constitutional Court agreed that section
5(1) of the Division of Revenue Act (DORA) was unconstitutional for
excluding district municipalities from the allocation of nationally raised
revenue, the Court insisted that the essence of Chapter 3 was that
disputes between organs of state should be resolved ‘at a political level
rather than through adversarial litigation’.48 The Court held further that
it will rarely decide an intergovernmental dispute ‘unless the organs of
state involved in the dispute have made every reasonable effort to
resolve it at a political level.’49 Thus, the duty to avoid legal proceedings
places a twofold obligation on all organs of state. They have to make
every reasonable effort to settle the dispute through the mechanisms
provided and to exhaust all other remedies before they approach the
courts.50 The Court will decline to hear the matter if there is a failure to
comply with this obligation. In effect, the matter will be referred back to
the parties to comply with their obligations in terms of Chapter 3.
With the specific aim of preventing conflicts between the national,
provincial and local spheres of government, especially in so far as their
concurrent powers are concerned, the Constitution provides for the
establishment of co-ordinating bodies. Some of these bodies are
responsible for co-ordinating the legislative activities of the three
spheres of government and others for co-ordinating the executive
activities of government.
The responsibility for co-ordinating the legislative activities of the
different spheres of government has been vested in the National
Council of Provinces (NCOP). This is – as we explained in chapter 4 –
because each province, as well as organised local government, is
represented in the NCOP. Given that we have already discussed the
NCOP elsewhere, we will not dwell on the manner in which it co-
ordinates the legislative activities of the three spheres of government
here. Instead, we will focus on those bodies that have been established
by the Intergovernmental Relations Framework Act (IGRFA)51 to co-
ordinate the executive activities of the different spheres of government.
The IGRFA was passed to establish structures to promote and
facilitate intergovernmental relations and to provide mechanisms to
settle intergovernmental disputes. The understanding is that ‘if there
are forums within which organs of state may share their experiences
and problems, then the potential for disputes among them may be
minimised’.52 The provisions of the IGRFA do not apply to conflicts
between the national and provincial legislatures.53 These conflicts have
to be resolved in accordance with section 146 of the Constitution. As a
consequence of the Langeberg case, all Chapter 9 institutions and other
independent institutions fall outside the scope of the Act. Finally, as the
courts are independent, they too are not bound by the provisions of the
IGRFA.
The purpose of the IGRFA is to provide a framework for the various
spheres of government and organs of state within those spheres to
facilitate co-ordination in the implementation of policy and
legislation.54 These include the provision of coherent government, the
effective provision of services, the monitoring of implementation of
policy and the realisation of national priorities.55 To help achieve this
purpose, the IGRFA creates a number of co-ordinating forums. Among
the most important of these are the President’s Co-ordinating Council,56
National Intergovernmental Forums,57 the Premiers’ Intergovernmental
Forum58 and District Intergovernmental Forums.59
An interesting perspective is raised by Steytler who draws a
distinction between co-operative intergovernmental relations and
coercive intergovernmental relations.60 He argues that while the
Constitution envisages a system of co-operative intergovernmental
relations, statutes such as the IGRFA lean more in the direction of a
system of coercive intergovernmental relations dominated by the
national sphere of government. This leads him to the conclusion that
South Africa currently operates as an integrated federal state that
utilises a coercive form of intergovernmental relations. In other words,
while the national sphere is obliged to co-operate with the other
spheres, it also dominates them.

The intended role of the principle of

subsidiarity
It is imperative that the status of local government is
not eroded by national and provincial legislation. This
 is especially so because of the important role played
by local government in achieving the developmental
objectives of the Constitution. Therefore, the higher
spheres of government must assist and support the
local sphere in the execution of its functions. However,
the higher spheres may not intervene in the local
sphere unless it is unable to deliver services or
perform its functions.
Therefore, the principle of subsidiarity means that
powers must be conferred on the lowest sphere of
government first and foremost,61 because that sphere
is closest to the people it serves and thus it knows
best what the needs and interests of the people are.
(Note that the principle of subsidiarity discussed here
differs from the principle of subsidiarity that applies in
equality cases discussed in chapter 12.) If this is how
the Constitution intended intergovernmental relations
to work, it raises a pertinent question about the long-
term prospects for South Africa. How do we reconcile
the exercise of power by local government (assisted by
provincial and national government) with the
expression that the state has turned against the
people by not delivering adequate services; the people
have turned against the state by protesting violently in
response; and the people have turned against each
other?62

In some instances, organs of state have to act in conjunction with other

organs of state to carry out their statutory and constitutional
responsibilities or to provide effective service delivery. The IGRFA
requires that in these instances, implementation protocols must be
agreed on by the various participating organs of state.63 Among various
objectives, the implementation protocols must:
• identify the roles and responsibilities of each organ of state in
implementing policy and carrying out its statutory functions
• provide for aims and objectives of the project
• determine indicators to measure the attainment of the objectives
• provide for monitoring and evaluation mechanisms64
• provide for dispute-resolving procedures
• determine the duration of the protocol.65

One of the most important objectives of the IGRFA is to set in place

mechanisms to deal with intergovernmental disputes. An
intergovernmental dispute is defined as a dispute between different
spheres of government or between organs of state from different
spheres concerning matters arising from statutory powers or functions
assigned to them or from an agreement between the parties regarding
the implementation of their statutory powers. In addition, the issue
must be justiciable in a court of law.66
This definition is wide and covers disputes that arise as a
consequence of the various parties exercising their statutory power. This
would include disputes about which party is responsible for paying for
the services provided and which party should provide particular
services. In addition, disputes may arise as a consequence of an
agreement entered into by the parties in furtherance of a joint mandate.
It does not, however, include disputes concerning interventions in
terms of sections 100 and 139 of the Constitution.67 Any intervention in
terms of these sections must satisfy the procedural and substantive
constraints built into these sections.
The IGRFA imposes a direct duty to avoid intergovernmental
disputes.68 This duty involves taking reasonable steps both to avoid
intergovernmental disputes and to settle intergovernmental disputes
that arise without resorting to judicial proceedings. A related benefit of
intergovernmental relations is its potential to develop substantive
principles of public administration. This means that the purpose of
section 195 of the Constitution will be realised. Section 195 declares
that the principles governing the public administration are, inter alia,
an efficient, economic and effective use of resources; and development-
oriented and accountable conduct. Time-consuming and resource-
draining litigation between organs of state will defeat the very
objectives to which the public administration aspires, thus friendly
relations are an imperative among and between the three spheres of
government.
The IGRFA prescribes various steps which must be followed as a
prerequisite before taking legal proceedings (which must be instituted
only as a last resort).
As a first step, the parties must try to settle the dispute through
direct negotiations or through an intermediary. If this is unsuccessful,
then one of the parties may declare a formal intergovernmental dispute
by notifying the other party of this in writing.69
After a formal intergovernmental dispute has been declared, the
parties are obliged to convene a meeting to determine the precise issues
that are in dispute, the material issues that are not in dispute and any
mechanisms and procedures, other than judicial proceedings, that are
in place and which can resolve the dispute. The parties are also required
to agree on appropriate mechanisms to settle the dispute and to
designate a person to act as a facilitator.70
If the meeting is not convened and if the dispute involves a national
organ of state, the Minister responsible for provincial and local
government must convene the meeting.71 Similar responsibilities rest
on the MEC for local government in respect of disputes involving
provincial organs of state and local government or municipal organs of
state.
The IGRFA assigns specific responsibilities to the facilitator.72 The
main mandate is to settle the dispute in any manner necessary and to
provide progress reports to the relevant parties. The attempts to settle
and the contents of the progress reports are deemed to be privileged
documents and may not be used in judicial proceedings. Importantly,
no organ of state may institute proceedings to settle an
intergovernmental dispute unless it has been declared a formal
intergovernmental dispute and efforts made to settle the dispute have
proved to be unsuccessful.
 The division of legislative and executive power
8.2
between the national and provincial spheres of
governments

8.2.1 Introduction
The division of legislative and executive authority between the three
spheres of government is one of the key features of the system of
multisphere government adopted in the Constitution. In this part of the
chapter, we discuss the division of legislative and executive authority
between the national and provincial spheres of government. Although
there is a large overlap between the matters over which each sphere has
legislative and executive authority, provincial executives may have
slightly different powers than provincial legislatures as additional
administrative powers may be delegated to provincial executives by the
national legislature.73 This would empower provincial executives to
exercise administrative powers in terms of such legislation even though
the provincial legislatures may not be empowered to legislate on that
matter. Nevertheless, to a large degree, provincial executives have
authority over the same subject matter as provincial legislatures. Unless
indicated otherwise, we will deal with these matters as if they overlap.
Before discussing this further, however, it will be helpful to discuss
briefly the objectives and structure of provincial government.

8.2.2 The objectives and structure of provincial government

South Africa is divided into nine provinces, namely the Eastern Cape,
Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern
Cape, North West and Western Cape.74 The Constitution regulates the
governance of the provinces in Chapter 6 and sets out the structure,
powers and functions of the provincial legislatures75 as well as the
provincial executive authorities.76 Judging from the structure and
powers bestowed by the Constitution on the nine provinces, provinces
are required to fulfil at least three important interrelated but distinct
functions:
 First, provinces provide a close link between voters and their
•
government to ensure that the government addresses the particular
concerns and unique challenges and needs of discrete geographical
areas.
• Second, provinces are required to implement national policies and
plans relating to important service delivery areas such as housing,
health care, policing and education.
• Third, provinces must oversee the smooth running of the local
sphere of government within the boundaries of the province.

Is provincial government good for democracy?

The decision by the drafters of the South African
Constitution to create three separate spheres of
government has come under sustained criticism. Some
have argued that the provincial sphere of government
should be scrapped or at the very least that the
number of provinces should be reduced. Thus, the
governing African National Congress (ANC) resolved at
its conference in 2007 that the number of provinces
should be reduced from 9 to 6 and at its 2017
conference it adopted a resolution that the
‘reconfiguration’ of provinces should be investigated by
a presidential commission.77 The argument is that the
provincial sphere of government is unnecessary, that it
is inefficient or that it forms part of the gravy train and
that scrapping or reducing the number of provinces
would make it a lot easier to govern well.
Steven Friedman challenges this view, arguing
instead that the provincial sphere of government
enhances democracy. He argues that some provinces
have at times done better at serving citizens than
central government.
Substantiating this argument is his analysis of the
crisis that occurred in the North West province where
 voters used their power to hold accountable those
elected to power – using ‘their votes to signal that they
don’t want a government that does not serve them’
and roundly rejecting the premier and his allies. This
proves that if the ANC ignores the will of the people in
a particular province, voters may resort to removing the
ANC provincial government at the next election
irrespective of their views of the national government. It
simply gives voters more choice in expressing their
preferences. Furthermore, provincial governments
supervise and oversee the functioning of local
government. Given widespread dysfunctionality in parts
of local government over recent years, the provincial
sphere is necessary to ensure proper service delivery.
78

To a large extent the structures and functions of the nine provinces

mirror one another. Each province is entitled to pass a provincial
constitution79 and the Western Cape has done so. However, such a
constitution cannot bestow substantially more powers on a province or
deviate from the basic structure of governance of the province as set out
in the national Constitution.80 The constitution-making power is not a
power to constitute a province with powers, functions or attributes in
conflict with the overall constitutional framework established by the
national Constitution. The provinces remain creatures of the national
Constitution and cannot, through their provincial constitution-making
power, alter their character or their relationship with the other levels of
government.81 When discussing the structure and functioning of
provinces, we shall therefore focus on the provisions of the 1996
Constitution only.
The legislative authority of each province is vested in its provincial
legislature. The provincial legislature has the legislative power to pass a
provincial constitution and to pass legislation for its province with
regard to any matter:
• within a functional area listed in Schedule 482
• within a functional area listed in Schedule 583
• outside those functional areas and that is ‘expressly assigned’ to the
province by national legislation84
• for which a provision of the Constitution ‘envisages’ the enactment
of provincial legislation.85

A provincial legislature may also assign any of its legislative powers to a

municipal council in that province.86 In addition, the legislature of a
province may change the name of that province by adopting a
resolution with a supporting vote of at least two-thirds of its members,
requesting Parliament to change the name of that province.87
Apart from the legislative powers set out above, the Constitution
also provides that provincial legislation with regard to any matter that is
reasonably necessary for, or incidental to, the effective exercise of a
power concerning any matter listed in Schedule 4, is for all purposes
legislation with regard to a matter listed in Schedule 4.88
The members of provincial legislatures are elected in accordance
with the same electoral system that applies to the election of members
of the National Assembly (NA). 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, but cannot be smaller
than 30 and no larger than 80 members.89 The Western Cape
legislature’s size is determined by the Western Cape Constitution.90 The
requirements for membership of provincial legislatures, as well as the
loss of membership, are identical to those prescribed for the NA.91
Provincial legislatures are also elected for a term of five years and can
be dissolved before the expiry of that term for exactly the same reasons
as those that apply to the NA.92
As we may recall, a province’s permanent delegates to the NCOP are
not members of the provincial legislature. However, such permanent
delegates to the NCOP may attend and may speak in their provincial
legislature and its committees, but may not vote. The legislature may
require a permanent delegate to attend the legislature or its
committees.93 The rules regarding the functioning of provincial
legislatures also mirror those prescribed for the NA.
The executive authority of a province is vested in the Premier of that
province, who exercises it together with the other members of the
executive council. The Premier’s role mirrors that of the President at
national level. Obviously, though, Premiers do not enjoy the head of
state powers bestowed on the President by section 84 of the
Constitution. However, Premiers do appear to exercise powers as head
of the province. These powers, set out in section 127(2) of the
Constitution, are not exercised together with the other members of the
executive. The powers include the responsibility of assenting to and
signing bills; referring a bill back to the provincial legislature for
reconsideration of the bill’s constitutionality; referring a bill to the
Constitutional Court for a decision on the bill’s constitutionality;
summoning the provincial legislature to an extraordinary session to
conduct special business; appointing commissions of enquiry; and
calling a referendum in the province in accordance with national
legislation.
The Premier exercises executive authority, together with the other
members of the Executive Council, by:
• implementing provincial legislation in the province
• implementing all national legislation in the functional areas listed in
Schedule 4 or 5 except where the Constitution or an Act of
Parliament provides otherwise
• administering in the province national legislation outside the
functional areas listed in Schedules 4 and 5, the administration of
which has been assigned to the provincial executive in terms of an
Act of Parliament
• developing and implementing provincial policy
• co-ordinating the functions of the provincial administration and its
departments
• preparing and initiating provincial legislation
• performing any other function assigned to the provincial executive
in terms of the Constitution or an Act of Parliament.94
A province has executive authority in terms of those functional areas
listed in Schedules 4 and 5 of the Constitution, but ‘only to the extent
that the province has the administrative capacity to assume effective
responsibility’.95 The Constitution enjoins the national government to
assist provinces to develop the administrative capacity required for the
effective exercise of their powers and performance of their functions
through legislative and other measures.96 Any dispute concerning the
administrative capacity of a province in regard to any function must be
referred to the NCOP for resolution within 30 days of the date of the
referral to the Executive Council.97
A member of the Executive Council of a province may assign any
power or function that is to be exercised or performed in terms of an Act
of Parliament or a provincial Act to a municipal council. An assignment
must be in terms of an agreement between the relevant Executive
Council member and the municipal council. It must be consistent with
the Act in terms of which the relevant power or function is exercised or
performed, and it takes effect on proclamation by the Premier.98
Premiers are elected by the provincial legislature.99 Premiers can
also be removed in two ways:
• First, Premiers can be impeached in terms of section 130(3) of the
Constitution for a serious violation of the Constitution or the law,
serious misconduct or inability to perform the functions of office.
• Second, in terms of section 141 of the Constitution, a provincial
legislature may remove a Premier for purely political reasons by
instituting a motion of no confidence in the Premier.

The division and demarcation of legislative

competences between the national and
provincial spheres
Unlike Parliament, which has plenary legislative
powers, the provincial legislatures have limited
legislative powers. The limited nature of the provincial
legislatures’ legislative powers was highlighted by the
Constitutional Court in its judgment in Premier:
Limpopo Province v Speaker of the Limpopo Provincial
Legislature and Others.100
The facts of this case were as follows. In 2009, the
Limpopo Provincial Legislature passed the Financial
Management of the Limpopo Provincial Legislature Bill,
2009. The purpose of this Bill was to regulate the
financial management of the Limpopo Provincial
Legislature itself. After the Limpopo Provincial
Legislature had passed this Bill, it was referred to the
Premier of Limpopo for his assent and signature. The
Premier, however, had reservations about the
constitutional validity of the Bill and refused to assent
to it. Acting in terms of section 121 of the Constitution,
the Premier referred the Bill back to the Provincial
Legislature and, after the Provincial Legislature had
failed to address his concerns, to the Constitutional
Court for a decision on its constitutional validity.101
The Premier’s reservations were based on the fact
that the financial management of a provincial
legislature is not listed as a functional area in either
Schedule 4 or Schedule 5 of the Constitution. This
meant he argued that the Bill fell outside the Provincial
Legislature’s legislative competence.
The Provincial Legislature accepted that financial
management of a provincial legislature is not listed as
a functional area in either Schedule 4 or Schedule 5. It
argued, however, that the Bill did fall into its legislative
competence because the power to pass legislation
regulating the financial management of a provincial
legislature has been ‘expressly assigned’ to the
provinces by the Financial Management of Parliament
Act.102
In addition, the Provincial Legislature argued
further, the power to pass legislation regulating the
financial management of a provincial legislature was
‘envisaged’ by sections 195, 215 and 216 the
Constitution.103 Section 195 deals with the basic
values and principles governing public administration.
Section 215 deals with the national, provincial and
municipal budgets and section 216 indicates the
nature of treasury controls that must be implemented.
A majority of the Constitutional Court rejected both
these arguments and came to the conclusion that the
Bill did not fall into the legislative competence of the
Limpopo Provincial Legislature. It was, therefore,
unconstitutional and invalid.
In arriving at this conclusion, the Constitutional
Court pointed out that the defining feature of our
constitutional scheme for the allocation of legislative
powers between Parliament and the provinces is that
the legislative powers of the provinces are enumerated
and clearly defined, while those of Parliament are
not.104 The plenary power that resides in Parliament,
therefore, is contrasted with the limited powers that
have been given to provincial legislatures.105 An
important consequence of this feature is that a
provincial legislature may pass legislation only on:
• those matters set out in Schedule 4
• those matters set out in Schedule 5
• those that have been ‘expressly assigned’ to the
provinces by national legislation
• those in respect of which a provision of the
Constitution ‘envisages’ the enactment of
provincial legislation.106

The general scheme of the Constitution, the

Constitutional Court pointed out further, was aimed at
ensuring that the legislative authority of the provinces
is clearly identified.107 In addition to the competences
directly articulated in Schedules 4 and 5, the
Constitution specifically requires that additional
competences are ‘expressly assigned’ by national
legislation to the provinces or are ‘envisaged’ by a
provision of the Constitution.108
After setting out these principles, the
Constitutional Court turned to consider whether the
Financial Management of Parliament Act has expressly
assigned the financial management of a provincial
legislature to the provinces. In this respect, the
Constitutional Court noted that the word ‘expressly’
must be interpreted as part of the objective to ensure
that provincial competences are clearly identified. This
meant, the Court noted further, that the national
legislation assigning the additional powers must leave
no doubt of its intent and must clearly stipulate the
nature and scope of the powers assigned. The reason
why the national legislation assigning the additional
powers must leave no doubt of its intent, the
Constitutional Court went on to note, is because it will
provide reasonable certainty as to the areas of
competence of the provincial legislatures.109
Clarity as to the nature and extent of the power
assigned will advance co-operative government which
has, as one of its guiding principles, that no sphere will
assume any power or function except those conferred
in terms of the Constitution. This clarity, the
Constitutional Court also held, would prevent disputes
and inform the public as to which sphere has
competence over the particular matter.110
The Court suggested that the preamble and the
objectives of the enabling legislation should make the
intent clear and unequivocal.111 The Court concluded
that if the assignment is merely implied as opposed to
express, it will fail to comply with the requirements of
the Constitution regarding the assignment of legislative
authority.112
Having found that the Financial Management of
Parliament Act did not expressly assign the financial
management of a provincial legislature to the
provinces, the Constitutional Court turned to consider
whether the power to pass legislation regulating the
financial management of a provincial legislature was
‘envisaged’ by sections 195, 215 and 216 of the
Constitution.113 In keeping with the theme of maximum
clarity in respect of the allocation of legislative powers
to the various spheres, the Constitutional Court also
adopted a restrictive approach to this argument. It held
that only those provisions of the Constitution which in
clear, unequivocal and express terms sanctioned the
enactment of provincial legislation fell under this
section.114 The Constitutional Court stated that the
power had to be expressly assigned and not merely
implied. To do otherwise would, in the view of the
Court, undermine the principle of certainty and
adversely affect the constitutional scheme.115 The Court
identified section 155(5) of the Constitution as an
example of such express assignment. This section
provides that provincial legislation must determine the
different types of municipalities to be established in
the province.116 On the facts, the Constitutional Court
concluded that the sections of the Constitution relied
on by the provincial legislature did not in clear and
unmistakeable terms envisage the enactment by the
provincial legislature of this law.117
In their dissenting judgments, the minority of the
Constitutional Court disagreed with the manner in
which the majority interpreted the word ‘envisages’. The
word ‘envisages’, the minority reasoned, must mean
something different from the phrase ‘expressly
assigned’.118 If they meant the same thing, the drafters
of the Constitution would not have used different
words. The word ‘envisages’, the minority reasoned
further, means something less than ‘expressly
assigned’, but not much less.119 ‘It must appear that
the relevant provisions of the Constitution read in
context lead to no conclusion but that the Constitution
contemplates the exercise of the power by the
provincial legislature and that the Constitution could
mean nothing else’.120 After setting out these
principles, the minority turned to apply them to the
facts and found that the power to pass legislation
regulating the financial management of a provincial
legislature was ‘envisaged’ by sections 195, 215 and
216 of the Constitution.121
The case represents an attempt to have
reasonable certainty in respect of the division and
demarcation of legislative competences between the
national and provincial spheres. The constitutional
scheme vests the residual legislative powers in the
national sphere and makes specified allocations to the
provincial legislatures. The Court did not permit the
boundaries to be blurred and insisted that the
provinces can
only legislate in respect of functional areas falling
within Schedules 4 and 5, or if national laws clearly
assign further function to the provinces, or if the
Constitution expressly assigns power to the provinces
to legislate on specified matters.122
Do you agree with the reasoning of the majority or
minority in this case and should a premier have the
power to refer such a matter to the Constitutional Court
to test the constitutionality of legislation passed by the
provincial legislature?
8.2.3 Determining legislative competence: the pith and
substance test
As we have already seen, the legislative powers bestowed on Parliament
overlap to some degree with the legislative powers bestowed on
provincial legislatures. One of the more difficult questions of South
African constitutional law is the exact relationship between the
legislative powers of Parliament and the legislative powers of the
provincial legislatures. There are two distinct issues at play here:
• First, when dealing with concurrent competences listed in Schedule
4, both Parliament and the provincial legislatures are empowered to
pass legislation on the same topics. Given this fact, it is inevitable
that conflicts will sometimes arise between the provisions of
national and provincial legislation dealing with the same subject
matter. These conflicts are regulated by section 146 of the
Constitution, which provides that the provisions of the provincial
legislation will prevail unless one or more of the requirements listed
in section 146 itself is met, in which case the national legislation will
prevail.123
• Second, usually only provincial legislatures can pass legislation
dealing with one or more of the exclusive competences listed in
Schedule 5. However, in exceptional cases set out in section 44(2) of
the Constitution, Parliament may intervene and pass legislation
listed in Schedule 5. We shall deal with this below.

It is important to note that the division of legislative authority between

the national, provincial and local spheres of government imposes
important federalist limits on the power of each sphere of government
to legislate. At the heart of these limits lies the principle that each
sphere may not adopt legislation that falls outside its legislative
authority. Legislation passed by a legislature in a particular sphere,
therefore, may be challenged on the ground that it does not fall within
the legislature’s authority. Whenever a person challenges legislation on
the ground that it does not fall within a legislature’s authority, a court
will have to determine whether the legislature in question was
competent to pass the legislation.
 There are two distinct questions that arise whenever there is
uncertainty whether the legislature of one sphere of government is
competent to pass legislation on a specific topic:
• First, there is a need to decide whether the impugned legislation
deals with a topic listed in Schedule 4 or Schedule 5. Our courts
have developed a special test for this, which we will discuss below.
• Second, once we have determined whether the legislation falls
within Schedule 4 or 5, we must ask whether the relevant legislature
was authorised to pass the legislation as a matter of course or in
terms of section 44(2) of the Constitution.

The Constitutional Court uses the ‘pith and substance’ test to determine
whether a Bill deals with subject matter contained in schedule 4 or 5 of
the Constitution. The ‘pith and substance’ test requires ‘the
determination of the subject-matter or the substance of the legislation,
its essence, or true purpose and effect, that is, what the [legislation] is
about’124 What complicates matters is that a Bill could have more than
one ‘pith and substance’ – in other words its true purpose could be to
achieve more than one goal. In such a case the pith and substance of
the bill relates to each one of the true purposes of the Bill. However, a
Bill may also contain other provisions dealing with matters not related
to the true purpose of the Bill. Such provisions would be incidental and
in terms of the pith and substance test for legislative competence, such
provisions which fall outside the pith and substance of the legislation
are seen as merely incidental and has no effect on determining the pith
and substance of the Bill.125 The pith and substance test was first applied
by the Constitutional Court in Ex Parte President of the Republic of
South Africa: In re Constitutionality of the Liquor Bill.126 This case
provides a good illustration of the fact that one Bill could have more
than one pith and substance, thus more than one true purpose.
In this case, Parliament passed the Liquor Bill which sought to
regulate the liquor industry comprehensively. The Bill divided the
economic activity of the liquor industry into three categories:
manufacture, distribution and retail sales. The Bill treated manufacture
and distribution as national issues and retail sales as provincial issues to
be dealt with by provincial liquor authorities. However, even in respect
of retail sales, the Bill prescribed detailed mechanisms as to how the
provincial legislatures should establish their retail licensing systems.
The President referred the Bill to the Constitutional Court in terms
of section 84(2)(c) of the Constitution, to consider the constitutionality
of the Bill. The concern was that the Bill exhaustively regulated issues
concerning manufacture and distribution and provided for the national
sphere to control the issuing of liquor licences despite the fact that
liquor licencing was an exclusive provincial competence in terms of
Schedule 5 of the Constitution. Parliament contended that the Bill
primarily dealt with trade, economic and social welfare issues, which
are concurrent competences in terms of Schedule 4. The Western Cape
provincial government argued that the Bill dealt with liquor licences,
which is an exclusive provincial competence in terms of Schedule 5.
The Constitutional Court emphasised that under the post-apartheid
Constitution, governmental power is not located in the national sphere
alone.127 Legislative authority is vested in Parliament for the national
sphere, in the provincial legislature for the provincial sphere and in
municipal councils for the local sphere.128 Any interpretation must
recognise and promote the philosophy of co-operative government at
various levels.129 However, given the breadth of the competencies listed
in the various Schedules, their parameters of operation will, of
necessity, overlap.130
The Constitutional Court pointed out that the Constitution allows
for provincial exclusivity in respect of matters falling within Schedule 5,
subject to an intervention by the national sphere that is justified in
terms of section 44(2) of the Constitution. This, argued the Court, meant
that the functional competencies in Schedule 4 should be interpreted as
being distinct from, and excluding, Schedule 5 competencies.131 The
Court found that the primary purpose of Schedule 4 is to enable the
national government to regulate various issues inter-provincially
(between all the provinces).132 Conversely, the provinces, whose
jurisdiction is confined to their geographical territory, are accorded
exclusive powers in respect of matters that may be regulated intra-
provincially (exclusively within the province).133
 The main substance and character of the legislation (its ‘pith and
substance’) determines the field of competence in which it falls. A
single piece of legislation may have various parts and more than one
substantive character.134 According to this reasoning, the Court
concluded that the pith and substance of the bill dealt with the
manufacturing, distribution and sale of liquor. The manufacture and
distribution segments of the legislation affect inter-provincial as
opposed to intra-provincial competencies135 which means that the
competence of liquor licensing in Schedule 5 was not intended to
encompass the manufacturing and distribution of liquor.136 In any
event, the Court was prepared to conclude that even if the provincial
competence in respect of liquor licenses extends to production and
distribution, the national spheres ‘interest in maintaining economic
unity authorises it to intervene in these areas under section 44(2) [of the
Constitution]’.137
However, the Court adopted a much stricter approach to the
national regulation in respect of retail sales. A relatively uniform
approach to liquor licensing in the country may be desirable but this
did not amount to a necessity that justified an intrusion into the
exclusive provincial competence. Thus, the Court deemed those aspects
of the law that regulated the manufacture and distribution of liquor
constitutional and the segment of the national law regulating the retail
industry unconstitutional.138

The substantial measure test versus the pith

and substance test for Bills.
It is important to recall what we stated in Chapter 4,
namely that there is a distinction between the test to
determine whether a Bill should be tagged and then
passed as a section 75 Bill not affecting provinces or a
section 76 Bill affecting provinces, and the test to
determine whether a Bill deals with a concurrent
competence in terms of Schedule 4 or an exclusive
provincial competence in terms of Schedule 5. There is
an important difference between the substantial
measure test used to decide how to tag a Bill and the
pith and substance test used to determine whether the
subject matter of a Bill falls within Schedule 4 or
Schedule 5.
In terms of the pith and substance test, those
provisions of a Bill that fall outside its substance are
treated as incidental. In contrast, the tagging test is
distinct from the question of legislative competence. It
focuses on all the provisions of the Bill to determine
the extent to which they substantially affect functional
areas listed in Schedule 4 and not on whether any of
its provisions are incidental to its substance. The more
it affects the interests, concerns and capacities of the
provinces, the more say the provinces should have on
its content.139
In Tongoane and Others v National Minister for
Agriculture and Land Affairs and Others the
Constitutional Court summarised this difference as
follows:
There is an important difference between the “pith and
substance” test and the “substantial measure” test. Under the
former, provisions of the legislation that fall outside of its
substance are treated as incidental. By contrast, the tagging test
is distinct from the question of legislative competence. It focuses
on all the provisions of the Bill in order to determine the extent to
which they substantially affect functional areas listed in Schedule
4 and not on whether any of its provisions are incidental to its
substance. The test for tagging must be informed by its purpose.
Tagging is not concerned with determining the sphere of
government that has the competence to legislate on a matter. Nor
is the process concerned with preventing interference in the
legislative competence of another sphere of government. The
process is concerned with the question of how the Bill should be
considered by the provinces and in the NCOP, and how a Bill must
be considered by the provincial legislatures depends on whether it
affects the provinces. The more it affects the interests, concerns
 and capacities of the provinces, the more say the provinces
should have on its content. 140

Importantly, the Court endeavoured to remain faithful to the structure

of the Constitution. Had the Court interpreted the competence of ‘trade’
very broadly, this would have provided an opportunity for the national
legislature to intervene in a variety of matters that fall under Schedule 5
such as liquor licensing, control of undertakings that sell liquor,
licensing and control of undertakings that sell food to the public,
markets and street trading. By demarcating the boundary by reference
to intra- and interprovincial activities, the Court ensured that national
intervention in respect of Schedule 5 matters that apply intra-
provincially must comply with section 44(2) of the Constitution. A
broad interpretation of the competences listed in Schedule 4 would
have ultimately negated the exclusive competence of the provinces to
legislate in respect of matters listed in Schedule 5.141
Given that subject matter or the substance of legislation determines
the field of competence in which it falls, it is important to be able to
identify the subject matter or the substance of a law. The Constitutional
Court discussed the manner in which this may be done in Abahlali
baseMjondolo Movement SA and Another v Premier of the Province of
KwaZulu-Natal and Others.142
In this case, the applicants, an association representing residents of
informal settlements, applied for an order declaring the Elimination
and Prevention of the Re-emergence of Slums Act,143 which had been
passed by the KZN Provincial Legislature, to be unconstitutional and
invalid. They based their application on a number of grounds, one of
which was that the KZN Provincial Legislature lacked the competence
to pass this law. The KZN Provincial Legislature lacked the competence
to pass the Act, the applicants argued, because it did not deal with
housing. Housing is a functional area of concurrent national and
provincial competences listed in Schedule 4. They argued that the Act
dealt with land tenure and access to land which, in terms of section 25
of the Constitution, is a functional area of exclusive national
competence.144
The key question the Constitutional Court had to determine,
therefore, was whether the subject matter or substance of the Act was
housing, in which case it would fall into the legislative competence of
the KZN Provincial Legislature, or whether it was land tenure and
access to land, in which case it would not fall into the legislative
competence of the KZN Provincial Legislature. When it comes to
determining the subject matter or substance of a law, the Constitutional
Court held that two important principles must be taken into account:
• First, the substance of the law does not depend on its form, but
rather on the true purpose, effect and essence of what the law is
about.
• Second, no national or provincial legislative competence is
watertight and it is therefore important to determine the main
substance of the legislation in order to ascertain whether the
provincial legislature has legislative competence.145

After setting out these principles, the Constitutional Court applied them
to the facts. In this respect, the Court held that in determining the
substance of the Act it had to be considered as a whole.146 The preamble
of the Act identified the purpose of the legislation as being to eliminate
and prevent the re-emergence of slums in a manner that protects and
promotes the housing construction programmes of provincial and local
governments.147 The Court found that the overall strategy of the Act was
to eliminate slums and to make provision for the progressive realisation
of adequate housing by improving service delivery and by generally
improving the conditions under which people are housed. It was not
simply about eviction with no regard for the consequences of rendering
people homeless.148
The Court concluded that the Act was primarily about improving the
housing conditions of those living in slums in KZN.149 It was therefore
about housing and fell within the legislative competence of the
province.150 However, the majority of the Court found that section 16 of
the Elimination and Prevention of the Re-emergence of Slums Act
obliged owners to institute eviction proceedings when directed to do so
by the MEC even if to do so would not be in accordance with the
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act (PIE Act).151 The majority found this to be inconsistent with section
25 of the Constitution which seeks to provide greater security of tenure
to communities whose tenure is legally insecure as a result of past
racially discriminatory laws.152
Thus, a full and complete appraisal of the law is required to
determine the substance of the legislation. This, in turn, assists with
assessing whether the law deals with a matter that falls under Schedule
4 or 5 or within the exclusive competence of Parliament. Once this
determination has been made, then clarity can be obtained as to which
legislative body has competence over the matter.

8.2.4 The resolution of conflicts between the national and

provincial spheres

8.2.4.1 Conflicts related to concurrent competences set out in

Schedule 4
As stated earlier, both Parliament and the provincial legislatures possess
power to legislate concurrently over the functional areas contained in
Schedule 4. Affording concurrent legislative responsibilities over the
same functional areas to different legislatures can lead to conflicting
laws being enacted over the same subject matter. For instance,
education is a concurrent function and thus both the national and
provincial legislatures have jurisdiction to pass laws in respect of this
competence. Provisions of a law passed by Parliament on education
may conflict with provisions of a law passed by a provincial legislature
on the same subject matter.
It is thus imperative for the Constitution to anticipate such conflicts
and to include provisions that seek to resolve conflicts between laws
dealing with the same subject matter and which are passed by the
different legislatures. Section 146 of the Constitution provides a
framework in terms of which these conflicts are to be resolved. It has
been suggested that conflicts between central and provincial laws are
dealt with by reference to the following enquiries:153
• Does the central legislature have the legislative competence to pass
its law?
• Does the provincial legislature have the legislative competence to
pass its law?
• If both legislatures have the legal competence to pass the laws, then
the issue would be whether the different laws can be reconciled.
• If there is an irreconcilable conflict, then the central law will prevail
if the provisions of section 146 of the Constitution are satisfied.
• If the provisions of section 146 of the Constitution are not met, then
the provincial law will prevail.

Thus, the first question is whether the legislative body possesses the
constitutional power to legislate over the matter. If the response is that
the provincial legislature, as in the case of the Premier: Limpopo, or
Parliament, as in Executive Council of the Western Cape Legislature and
Others v President of the Republic of South Africa and Others,154 does not
possess the authority to legislate, then that is the end of the enquiry. The
legislative body lacking the power cannot constitutionally legislate and
there is no need to determine whether national law should prevail over
provincial law or vice versa. It is only if both national and provincial
legislatures have the power to legislate and do so that attempts must be
made to reconcile the laws. If the laws cannot be reconciled, section 146
of the Constitution must then be applied to determine which law
should prevail.
If any one of the criteria listed in section 146 is met, the national law
will prevail.155 The provisions of section 146 can only be resorted to in
respect of conflicting laws dealing with a functional area listed in
Schedule 4.156 Criteria permitting the national override are divided into
two categories. If one of the criteria listed either in section 146(2) or
146(3) is satisfied, then the conflicting provincial law is rendered
inoperative for the period of the conflict.157 If, for some reason, the
conflicting national law is repealed, the provincial law that had been
rendered inoperative as a result of the application of section 146 will
again be operative. All the criteria listed in section 146(2) are subject to
the additional requirement that the national legislation must apply
uniformly to the country as a whole. Thus, a national law that targets a
particular province will not prevail in terms of section 146(2). The
Constitutional Court reaffirmed these principles in Federation of
Governing Bodies for South African Schools (FEDSAS) v Member of the
Executive Council for Education, Gauteng and Another.158 Education is a
Schedule 4 competence over which both the national and provincial
legislatures have concurrent legislative competence. The Court
confirmed that provincial law, without more, is not rendered
inoperative by the existence of a conflicting national law.
In terms of section 146(2), central law will prevail if any one of the
following three conditions is established:
(a) The national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the respective provinces
individually.159
(b) The national legislation deals with a matter that, to be dealt with
effectively, requires uniformity across the nation, and national
legislation provides that uniformity by establishing norms and
standards, frameworks or national policies.160
(c) The national legislation is necessary for the maintenance of national
security; the maintenance of economic unity; the protection of the
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.161

In Mashavha v President of the Republic of South Africa and Others,162

the Constitutional Court had to consider the constitutionality of the
President assigning to the provinces the administration of the Social
Assistance Act163 in its entirety. In terms of the interim Constitution, the
President could only assign the administration of the Act to the
provinces if the provisions of section 126(3) of the interim
Constitution164 were not applicable.
 The Court found that the assignment was invalid as the
administration dealt with a matter that could not be regulated
effectively by separate provincial legislation. For the administration of
social welfare grants to be administered fairly and equitably, it needed
to be regulated or co-ordinated by uniform norms or standards that
applied throughout the Republic.165 To achieve equity and effectiveness,
it was necessary to set minimum standards across the nation.166 The
primary objection of the Court was that if Gauteng, the richest province
in the country, paid a higher old-age pension than Limpopo, then the
dignity of people in Limpopo would be offended as different classes of
citizenship would be created.167 Thus, to prevent inequality and
unfairness in the provision of social assistance to people in need,
uniform norms and standards had to be applicable throughout the
country.168
In terms of section 146(3) of the Constitution, national law will
prevail over provincial law if it is aimed at preventing unreasonable
action by a province that is prejudicial to the economic, health or
security interests of another province or the country as a whole, or
impedes the implementation of national economic policy.

When is section 146 invoked?

It is important to note that conflicts only arise and
section 146 will only be invoked when one or more of
the specific legal provisions in a provincial Act cannot
be obeyed at the same time as one or more of the
provisions in a national Act. It is also important to
remember that as both the national and provincial
spheres have legislative competence over these
matters, the provisions that conflict do not become
invalid. All that happens is that section 146 is used to
decide whether the provisions of the provincial or
national Act will prevail. The provisions of the Act that
does not prevail are simply suspended. If the
conflicting provisions of the Act that prevails are
 scrapped, the provisions of the conflicting Act will be
‘resurrected’, so to speak, and will again become
operational.
For example, if both the national Parliament and
the Western Cape Provincial Parliament pass
legislation dealing with the regulation of the use of
blue-light brigades by politicians, both will have the
legislative power to pass such legislation as Schedule
4 states that road traffic regulation is a concurrent
competence. If there is a direct clash between the
provisions of the Western Cape law and the provisions
of the national law, say the national law allows
Ministers and Deputy Ministers to use blue-light
convoys while the Western Cape law allows only
Ministers to do so, then a court may have to decide
whether the national legislation prevails in terms of
section 146 of the Constitution. If the court finds that
section 146 is indeed applicable and that the
provisions of the national law prevail, the prohibition
contained in the provincial law would become
inoperable until such time as the national law is
amended or scrapped. If the court finds that section
146 is not applicable, then the prohibition contained
in the provincial law against the use of blue-light
convoys by Deputy Ministers will prevail, but only in the
Western Cape.

8.2.4.2 Conflicts related to exclusive provincial competences in

Schedule 5
Section 44(2) of the Constitution states that even though provincial
legislatures have the exclusive powers to pass legislation on one of the
functional areas listed in Schedule 5 of the Constitution, the national
Parliament may nevertheless intervene in areas listed in Schedule 5, but
only when it is necessary:
• to maintain national security
• to maintain economic unity
• to maintain essential national standards
• to establish minimum standards required for the rendering of
services
• to prevent unreasonable action taken by a province which is
prejudicial to the interests of another province or to the country as a
whole.

If Parliament does intervene and validly passes legislation on one of the

functional areas listed in Schedule 5, a conflict may arise between
national legislation and provincial legislation with respect to the
matters listed in Schedule 5. A conflict between national legislation and
provincial legislation with respect to these matters must be resolved in
terms of section 147(2) of the Constitution. This section provides that
national legislation referred to in section 44(2) of the Constitution
prevails over provincial legislation that falls with the functional areas
listed in Schedule 5.

8.2.5 National intervention in provincial administration

Each sphere of government has important constitutional and statutory
responsibilities to discharge. If a sphere of government becomes
incapable of performing its functions, it will become necessary for
another sphere of government to intervene and carry out the functions
of the dysfunctional sphere. A failure to do so may mean that important
aspects of service delivery may suffer and residents will be prejudiced.
However government at the various spheres are democratically elected
and are assigned direct constitutional powers to function effectively. It
is imperative that any provision allowing for one sphere to intervene
and assume the executive obligations of another sphere contains both
process and substantive constraints so as to ensure that the power is not
abused for irrelevant and irrational purposes. Thus, the national
executive controlled by Party A should not be permitted to assume the
executive functions of a province controlled by Party B for purely
political reasons.
Section 100 of the Constitution allows for national intervention in
provincial administration. Section 100 permits the national executive to
intervene and take appropriate remedial measures if the province
cannot or does not fulfil an executive obligation. The intervention must
be aimed at ensuring fulfilment of the executive obligations.169 The most
intrusive intervention would be the assumption of responsibility for the
relevant obligation. Less intrusive interventions may include the
deployment, by consent, of skilled personnel or other support to assist
the province to meet its constitutional and statutory obligations.
If the national government is to intervene, it must issue a directive to
the province describing the extent of the failure to fulfil its obligation
and stating the steps required to fulfil its obligations.170 The substantive
constraint is that it may only assume responsibility for the relevant
obligation to the extent necessary to maintain essential national
standards or meet established minimum standards for the rendering of
the service; to maintain economic unity; to maintain national security
or to prevent the province from taking unreasonable action that is
prejudicial to the interests of another province or to the country as a
whole. If an intervention is challenged then the national executive
would have to prove that the intervention is necessary to achieve one of
the objectives stated above.
In addition to these substantive constraints, there are a number of
procedural constraints that have to be met. A written notice must be
submitted to the NCOP indicating that the intervention has occurred,
within 14 days of the intervention.171 The intervention must end within
180 days if the NCOP disapproves of the intervention or has not
expressly approved of the intervention.172 One of the important
responsibilities of the NCOP is to represent the provinces and to ensure
that provincial interests are taken into account in the national sphere of
government.173 For the intervention to continue beyond 180 days, the
NCOP must expressly approve it. This would require the national
executive to satisfy the NCOP that the intervention is necessary to
achieve the objectives set out in section 100 of the Constitution.
Furthermore, there is an obligation on the NCOP to review the
intervention regularly and make recommendations to the national
executive. This would ensure that the assumption of functions of a
sphere of government does not continue more than is absolutely
necessary to ensure the objectives of the section are being met. It may
also order the intensity of the intervention to be periodically reduced as
the capacity of the province to deliver increases. Finally the section
allows for national legislation to be enacted to regulate this process.

8.3 The division of legislative and executive power

between the national and provincial and local spheres
of government

8.3.1 Introduction
As we have already seen, an important aspect of the Constitution is that
it distributes legislative and executive authority between the national,
provincial and local spheres of government. In the previous part of this
chapter, we discussed the division of legislative and executive authority
between the national sphere of government, on the one hand, and the
provincial spheres of government, on the other. In this part of the
chapter, we discuss the division of legislative and executive authority
between the national and provincial spheres of government, on the one
hand, and the local sphere of government, on the other. Before doing so,
however, it will be helpful to discuss briefly the objectives and structure
of local government.

8.3.2 The objectives of local government

The objectives of local government are set out in section 152(1) of the
Constitution. This section provides that the objectives of local
government are:
• to provide democratic and accountable local government for local
communities
• to ensure the provision of services to communities in a sustainable
manner
• to promote social and economic development
• to promote a safe and healthy environment
• to encourage the involvement of communities and community
organisations in the matters of local government.

In addition, section 153 of the Constitution also provides that a

municipality must:
• structure and manage its administration and budgeting and
planning processes to give priority to the basic needs of the
community
• structure and manage its administration and budgeting and
planning processes to promote the social and economic
development of the community
• participate in national and provincial development programmes.

Despite the fact that these sections impose a wide range of obligations
on local government, the Constitutional Court held in Joseph and
Others v City of Johannesburg and Others that one of the most important
objectives of local government is to meet the basic needs of all of the
inhabitants of South Africa.174 For this reason, ‘the establishment of
wall-to-wall municipalities in the Republic is mandatory’.175
To achieve this objective, the Constitutional Court held further that
sections 152 and 153 of the Constitution, read together with the Local
Government: Municipal Systems Act,176 impose an obligation on every
municipality in the territory to provide basic municipal services to their
inhabitants, such as water and electricity, irrespective of whether or not
they entered in a contract for the supply of these services with the
municipality.177

Street renaming and decolonisation

These issues were considered in the fractured
judgment of the Constitutional Court in City of Tshwane
v Afriforum.178 In 2007 the Tshwane Metropolitan
Municipal Council took a policy decision to replace the
names of streets and heritage sites in the city of
Pretoria and surrounding areas. Implicitly relying on the
philosophy that informs the Constitution’s aspirations
of achieving national unity, reconciliation and healing
the divisions of the past,179 the Council resolved to
change 25 of the more than 100 old street names.180
The purpose was to recognise and honour the heritage
and history of indigenous heroes and heroines in their
own motherland.181 Subsequently, the name Tshwane
replaced Pretoria for the same reasons. It is
conceivable that this resolution was also in furtherance
of some of the provisions of sections 152 and 153 of
the Constitution, discussed above.
Pertinent to the Council’s (albeit unstated)
intentions are the sentiments expressed by Welsh just
as apartheid was drawing to an end: ‘without
addressing diversity in a way that will ensure that all
live together “in reasonable harmony and peace”,
South Africa will “haemorrhage by continuing
violence”.’182
Upon being informed of Council’s resolution,
Afriforum contended that Tshwane had not followed
the correct process prior to implementing the new
changes and sought to interdict the Council from
proceeding to implement the resolution. In addition,
they argued that their cultural rights were being
infringed by these changes. In terms of an out of court
agreement, the Council committed to delaying the
replacement of street names by six months, during
which time Afriforum would be given an opportunity to
seek judicial review of the Council resolution. However,
Afriforum never did launch its review application.183
 Seven months later, preceded by some
consultative meetings held in areas located in 10 of
the 76 wards of Tshwane, as well as after having, in its
view, solicited a diversity of views including those of
Afriforum, Council resolved to commence with the
implementation of the replacement of the old and
offensive street names.184
On an urgent basis, Afriforum applied for – and
succeeded in obtaining from the High Court – an
interdict against the Council.185 The Council sought
leave to appeal, which the Supreme Court of Appeal
(SCA) granted. However, the SCA dismissed the
appeal, compelling the Council’s application to the
Constitutional Court.186
In declaring that the interdict should never have
been granted in the first place,187 the majority of the
Constitutional Court placed the case within context.
The wounds of colonialism, racism and apartheid run
deep in South Africa.188 Black people have been
subject to centuries of deprivation of ‘a sense of place
and a sense of belonging’189 on account of
colonialism. Even worse, colonialism was the
‘systematic negation of the other person and a furious
determination to deny the other person all attributes of
humanity’.190 Likewise, the minority was of the view
that the Constitution recognises a right or interest
based on ‘a sense of belonging to the place where one
lives, rooted in its particular history, and to be involved
in decisions affecting that sense of place and
belonging.’191 In the words of Ndlovu-Gatsheni, ‘denying
others humanity is the highest form of barbarism’.192
So too, the historical injustices occasioned by
apartheid were profoundly pernicious.193 The Court
recognised that the Council was inspired to give
realistic expression to the notion of Ubuntu, ‘that one
only becomes complete when others are appreciated,
accommodated and respected’.194
The majority were of the view that even on an
appeal against the granting of interim relief, the
applicants bore the onus of demonstrating that it had
met the requirements for the granting of interim relief.
The Court held that the old restrictive common law
rules pertaining to the appealability of interim order
were now replaced by the more flexible standard of
whether it was ‘in the interests of justice’ to grant leave
to appeal. The majority accepted in Afriforum’s favour,
without expressly deciding this issue, that they had
established prima facie rights.
A further requirement for an interdict is that the
applicant must demonstrate a reasonable
apprehension of irreparable and imminent harm
occurring should the order not be granted. The other
requirements are that the balance of convenience is in
the applicant’s favour and that there are no other
alternative adequate remedies. It was contended by
Afriforum that the removal, even temporarily, of the
street names, would cause emotional hurt and
adversely affect their sense of belonging and
association.
The majority held that Afriforum would not suffer
irreparable harm as a result of the temporary removal
of the names pending the review application. Afriforum
had not demonstrated that they would suffer
irreparable harm and whatever temporary harm that
they would suffer could be remedied by the
reinstatement of the names if the review application is
successful. The Court also found that Afriforum had not
demonstrated that the balance of convenience
favoured them. It found that Tshwane belongs not only
to Afrikaners but to all people, united in diversity. Any
harm that Afriforum and its supporters felt was
neutralised by the sense of belonging that the vast
majority would experience by the name changes. The
majority therefore held that Afriforum had failed to
establish the requirements for an interdict and allowed
the appeal.
The minority were of the view that the common law
rules regarding allowing appeals against interim orders
should be applied and that the appeal should have
been dismissed. Secondly, they disagreed with the
finding implicit in the judgment of the majority that
reliance on cultural practices founded in history rooted
in oppression is not protected by the Constitution. The
minority held that one of the issues to be considered
when deciding whether it was in the interests of justice
to grant leave to appeal was whether it would lead to
piece-meal adjudication. Granting the appeal against
the interim order resulted in more than three years of
litigation without the substantive issue being
considered. It would have been best for the application
for leave to appeal against the interim order to be
refused and the main review application considered
instead. The interim order, according to the minority,
was not final in effect and therefore not appealable.
The minority stressed that the decision as to whether
or not to grant leave to appeal cannot depend either
on the names of the streets that were being changed
or the names with which they were going to be
replaced. As the interim orders were not final in effect,
it was not in the interests of justice to grant leave to
appeal.
The minority went on to add that the right to enjoy
ones culture is not tainted by the nexus between that
culture and historical injustices. The minority held that
not being allowed an opportunity to make
 representation in instances where cultural rights and a
sense of belonging were being infringed, even
temporarily, could result in irreparable harm. The
minority held that the applicants have a right to insist
that the municipal adhere to the rule of law. In this
case the applicants were not saying that the Council
cannot change the street names, rather it was arguing
that it must do it properly and until it does so its
members are entitled to the cultural bonds that they
derive from the existing street names.
Highlighting the deference that the separation of
powers doctrine requires of it,195 the Court
unequivocally stated that the Council is vested with the
constitutional and statutory power and duty to run the
affairs of the City by taking policy decisions. The Court
further held that since the nature of public
participation is flexible, but does not permit ‘co-
governance or equal sharing of executive and
budgetary responsibilities’ by a civil society
organisation such as Afriforum, the Council had
satisfied the requirement of ensuring that public
participation took place.196 The majority emphasised
the centrality of Ubuntu in determining the nature and
extent of public participation prior to a decision being
taken and the application of the doctrine of separation
of powers. The Court declared that it is entirely within
the executive branch of government’s remit to
determine how it shall fulfil its functions. In particular,
courts must refrain from making orders that ‘have the
effect of altogether derailing policy-laden and
polycentric decisions of the other arms of the State’.197

8.3.3 The structure of local government

Section 155 of the Constitution distinguishes between three different
categories of municipalities namely category A municipalities, category
B municipalities and category C municipalities:
1. A category A municipality has exclusive municipal executive and
legislative authority in its area and is referred to as a metropolitan
municipality in section 1 of the Local Government: Municipal
Structures Act.198
2. A category B municipality shares its municipal executive and
legislative authority in its area with a category C municipality and is
referred to as a local municipality in section 1 of the Municipal
Structures Act.
3. A category C municipality has municipal executive and legislative
authority in an area which includes more than one municipality and
is referred to as a district municipality in section 1 of the Municipal
Structures Act.

Apart from distinguishing between category A (metropolitan), category

B (local) and category C (district) municipalities, section 155 of the
Constitution also provides that national legislation must establish the
criteria for determining when an area should have a single category A
municipality or when it should have municipalities of both category B
and category C. The national legislation referred to in this section is the
Municipal Structures Act. Section 2 of this Act provides that
metropolitan municipalities must be established in metropolitan areas,
and section 3 provides that local and district municipalities must be
established in all other areas.
A metropolitan area is defined in section 1 of the Municipal
Structures Act as any area which reasonably can be regarded as a
conurbation featuring areas of high population density, intense
movement of people, goods and services, extensive development,
multiple business districts and a number of industrial areas. In
addition, the social and economic linkages between the constituent
units should be strong.199 The power to determine whether an area
satisfies criteria and should therefore be classified as a metropolitan
area with a metropolitan municipality is vested in an independent body
known as the Municipal Demarcation Board. The Municipal
Demarcation Board is responsible for determining and re-determining
the boundaries of municipalities. Its powers and functions as well as the
procedure it must follow when it exercises it powers and carries out its
functions are set out in the Local Government: Municipal Demarcation
Act.200

Why must an independent authority carry out

the task of determining municipal
boundaries?
Section 155(3)(b) of the Constitution declares that
national legislation must establish criteria and
procedures for the determination of municipal
boundaries by an independent authority. The
independent authority referred to in this section is the
Municipal Demarcation Board. The Constitutional Court
highlighted the reasons why an independent authority
must carry out the task of determining municipal
boundaries in its judgment in Matatiele Municipality
and Others v President of the Republic of South Africa
and Others.201
In 2005, Parliament passed the Constitution
Twelfth Amendment Act and the Cross-Boundary
Municipalities Laws Repeal and Related Matters Act.202
In terms of these laws, the boundary between
KwaZulu-Natal and the Eastern Cape was altered so
that the area in which the Matatiele Municipality was
located was transferred from KwaZulu-Natal to the
Eastern Cape and new municipal boundaries were
created.
The applicants then applied for an order declaring
the Constitution Twelfth Amendment Act to be
unconstitutional and invalid on the grounds that it
violated section 155(3)(b) of the Constitution. They
 argued that the new boundaries of the Matatiele
Municipality had been determined by Parliament and
not by an independent authority, namely the Municipal
Demarcation Board.
The Constitutional Court rejected this argument
and refused to grant the order. In arriving at this
decision, however, it set out some of the reasons why
section 155(3)(b) of the Constitution provides that the
Municipal Demarcation Board must be an independent
body. In this respect, the Constitutional Court pointed
out that the ‘purpose of section 155(3)(b) is “to guard
against political interference in the process of creating
new municipalities”’,203 This is because, the
Constitutional Court pointed out further, if
municipalities were established along political lines or
if there was political interference in the establishment
of new municipalities, our system of multiparty
democratic government would be undermined.204 A
deliberate decision, the Constitutional Court went on to
conclude, was therefore made to confer the power to
establish municipal areas on an independent
authority.205

The different types of municipalities that may be established within

each category of municipality are also set out in the Municipal
Structures Act. The Act begins in this respect by distinguishing between
three ‘executive systems’ of municipal government and two
‘participatory system[s]’.206 The three executive systems are the collective
executive system, the mayoral executive system and the plenary
executive system:
• A collective executive system is one in which the executive authority
of the municipality is exercised by an executive committee. In this
system, the leadership of the municipality is collectively vested in
the executive committee.
 A mayoral executive system is one in which the executive authority
•
of the municipality is exercised by an executive mayor assisted by a
mayoral committee. In this system, the leadership of the
municipality is vested in an executive mayor.
• A plenary executive committee is one in which executive authority is
exercised by the municipal council itself. In this system, the
leadership of the municipality is vested in the municipal council.

The two participatory systems are the subcouncil participatory system

and the ward participatory system:
• A subcouncil participatory system is one which allows for delegated
powers to be exercised by subcouncils established for parts of the
municipality.
• A ward participatory system is one which allows for matters of local
concern to wards to be dealt with by committees established for
wards.

After distinguishing between these different systems of municipal

government, the Municipal Structures Act goes on to provide that:
• a metropolitan council must have either a collective or mayoral
executive system and may combine its executive system with a
subcouncil participatory system or a ward participatory system or
both207
• a local council may have a collective, mayoral or plenary executive
system and may combine its executive system with a ward
participatory system but not with a subcouncil participatory
system208
• a district council may have a collective, mayoral or plenary executive
system but may not combine its executive system with a subcouncil
or ward participatory system.209

The articulation of the type of municipality is important to determine

three issues:
• first, the institutional relationship between the municipality’s
executive and legislative functions
• second, whether a metropolitan or local municipality is permitted to
establish ward committees
• third, whether a metropolitan municipality is permitted to establish
subcouncils that exercise delegated powers for parts of the
municipality.

Finally, it is important to note that section 155 of the Constitution also

provides that national legislation must make provision for an
appropriate division of powers and functions between local and district
municipalities. A division of powers and functions between a local and
a district municipality, however, does not have to be symmetrical, but
must constantly ensure that the need to provide municipal services in
an equitable and sustainable manner is being upheld.210 The national
legislation referred to in this section is the Local Government:
Municipal Structures Act.211

8.3.4 Municipal powers

As we have already seen, municipalities are no longer simply creatures
of statute. Instead, they derive at least some of their executive and
legislative powers directly from the Constitution itself.212 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;213 and any other matter assigned to it by national or
provincial legislation.214
In addition, section 156 of the Constitution also provides that a
municipality may make and administer by-laws for the effective
administration of the matters that it has the right to administer.215 A
careful examination of this section shows that it distinguishes between
two types of powers, namely: those powers that are derived directly
from the Constitution and that may be referred to as original powers
and those powers that are assigned to municipalities in terms of
national or provincial legislation and that may be referred to as assigned
powers.
Apart from those powers that are derived directly from the
Constitution or that are assigned to it in terms of national or provincial
legislation, section 156(5) of the Constitution also provides that a
municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of
its functions.216
Democracy – one of the cornerstones of the South African
Constitution – is vital to the effective performance by municipalities of
their functions. What is specifically required is a system within each
municipality where officials are appointed on merit, where the rule of
law is adhered to, and where democratic accountability is evident.
A further attribute that the officials responsible for creating and
implementing the by-laws must possess is cultural competence.
Developing cultural competence entails:
• learning about other cultures
• becoming aware and knowledgeable of cultural differences and
their effect and impact on public service delivery outcomes
• engaging and integrating cultural awareness, cultural knowledge,
and cultural sensitivity into public service delivery practices.217

Cultural competence, therefore, operates at both the individual and

institutional level.218 This approach is undoubtedly consistent with the
developmental duties of municipalities. The White Paper on Local
Government219 defines developmental government as ‘local government
committed to working with citizens and groups within the community
to find sustainable ways to meet their social, economic and material
needs and improve the quality of their lives’.220

8.3.4.1 Original municipal powers

Section 156(1)(a) of the Constitution provides that a municipality has
executive and legislative authority in respect of the local government
matters listed in Part B of Schedule 4 and in Part B of Schedule 5. In
addition, section 156(5) of the Constitution also provides that a
municipality has the right to exercise any power concerning a matter
reasonably necessary for or incidental to the effective performance of
its Schedule 4 Part B and Schedule 5 Part B functions. Given that these
powers can only be altered or withdrawn if the Constitution itself is
amended, they form the most significant source of municipal powers
and are a fundamental feature of local government’s institutional
integrity.221
Chapter 7 of the Constitution which deals with local government
allocates specific powers to the provinces and local government. When
Parliament passed the Municipal Structures Act in 1998, it sought to
regulate local government expansively and to deal with the specific
matters that had been allocated to the competence of the provincial
legislatures in Chapter 7. Given this fact, it is not surprising that some of
the provisions of the Municipal Structures Act were challenged by the
provincial governments of KwaZulu-Natal and the Western Cape in
Executive Council, Western Cape v Minister of Provincial Affairs.222
Although Parliament acknowledged that Chapter 7 allocates power
to provinces and to municipalities, it contended that this does not
deprive Parliament of the right to legislate over these matters. It argued
further that in terms of section 44(1)(a)(ii) of the Constitution,
Parliament has legislative competence in all fields except those falling
within Schedule 5. Thus in terms of this argument, the powers
conferred on the provinces and on local government by Chapter 7
should be deemed concurrent powers as they do not fall within
functional areas listed in schedule 5 of the Constitution.
Relying largely on section 44(4), which provides that when
exercising its legislative authority, Parliament is bound only by the
Constitution, and must act in accordance with, and within the limits of,
the Constitution, the Constitutional Court rejected this argument. The
Court held that Chapter 7 allocates specific powers to the different
spheres and that this operates as a constitutional constraint on the
exercise of the legislative power of Parliament. These constraints further
regulated the manner in which Parliament was meant to exercise its
legislative powers. It thus concluded that the contention that
Parliament had concurrent powers over these matters is inconsistent
with the language of Chapter 7, which clearly assigned them to the
provincial legislatures. Consequently, the provisions of the Act were
invalid to the extent that Parliament had legislated contrary to the
constraints contained in Chapter 7 of the Constitution.223

Using the bottom-up method to determine the

scope and ambit of the matters set out in
Schedule 4 and Schedule 5
In both the Liquor Bill case and in City of
Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal and Others,224 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 of government.
Besides these principles, the Constitutional Court
also held in Gauteng Development Tribunal that where
two or more matters appear to overlap with each other,
they should be interpreted in a bottom-up manner.225 A
bottom-up method of interpretation is one in which the
more specific matter is defined first and all residual
areas are left for the much broader matter.226
In the Gauteng Development Tribunal case, for
example, one of the key questions the Constitutional
Court had to answer was whether the power to approve
applications for the rezoning of land and the
establishment of townships fell into the broad matter
of urban and rural development, which is listed in
Schedule 4A, or into the specific matter of municipal
planning, which is listed in Schedule 4B. In
accordance with the bottom-up method of
interpretation, the Constitutional Court began its
analysis, not with an examination of the scope and
ambit of the broad matter of urban and rural
development, but rather with an examination of the
scope and ambit of the specific matter of municipal
planning.
In so far as the scope and ambit of municipal
planning was concerned, the Constitutional Court
began by noting that although the term is not defined
in the Constitution, it has a particular and well known
meaning, which includes the zoning of land and the
establishment of townships.227 In addition, the
Constitutional Court noted further, there is nothing in
the Constitution which indicates that the term
‘municipal planning’ should be given a meaning which
is different from its common meaning.228 The power to
approve applications for the rezoning of land and the
establishment of townships did, therefore, fall into the
area of municipal planning listed in Schedule 4B.229
After coming to this conclusion, the Constitutional
Court turned to consider whether the same powers also
fell into the broad matter of urban and rural
development. The Court held that they did not. In
arriving at this conclusion, the Constitutional Court
began by noting that the term ‘urban and rural
development’230 could not be interpreted in a way that
included the power to approve applications for the
rezoning of land and the establishment of townships.
This is because, the Constitutional Court noted further,
such an interpretation would infringe the principles of
co-operative government which provide that each
sphere of government must respect the functions of the
other spheres and must not assume any functions or
powers not conferred on them by the Constitution or
encroach on the functional integrity of the other
spheres.231 An important consequence of this
 approach, the Court went on to note, was that the term
‘urban and rural development’ should be interpreted
narrowly so that each sphere of government could
exercise its powers without interference by another
sphere of government.232
Having found that the term ‘urban and rural
development’ was not broad enough to include the
powers that form a part of municipal planning, the
Constitutional Court then concluded that it was not
necessary to go any further and define exactly what the
scope of the functional area of urban and rural
development was.233

The Constitution confers the authority on municipalities to pass laws in

respect of the matters listed in Part B of Schedule 4 and Part B of
Schedule 5. However, it is important to note that the authority to pass
laws on the matters listed in Schedule 4B and Schedule 5B has also
been conferred on the national234 and provincial governments.235 The
authority conferred on the national and provincial governments to pass
laws on the matters listed in Schedule 4B, however, is limited by section
155(6)(a) and 155(7) of the Constitution.236 The authority conferred on
the provincial governments to pass laws on the matters listed in
Schedule 5B is limited by section 155(6)(a) and 155(7) of the
Constitution.237
Section 155(6)(a) of the Constitution provides in this respect that:
[e]ach provincial government … by legislative and other measures, must
provide for the monitoring and support of local government in the province.

And section 155(7) of the Constitution provides that:

[t]he national government, subject to section 44, and the provincial
governments have the legislative and executive authority to see to the effective
performance by municipalities of their functions in respect of matters listed in
Schedules 4 and 5, by regulating the exercise by municipalities of their
executive authority referred to in section 156(1).
The first case in a line of cases dealing with the need for the spheres of
government to ‘respect the constitutional status, institutions, powers
and functions of government in the other spheres’ and ‘not assume any
power or function except those conferred on them in terms of the
Constitution’,238 is City of Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal and Others.239 Of specific importance to
all of these cases is the fact that Part B of Schedule 4 includes ‘municipal
planning’. In the Gauteng Development Tribunal case, the
Constitutional Court held that an important consequence of section
155(7) of the Constitution is that neither the national nor the provincial
spheres of government can, by legislation, give themselves the power to
exercise executive municipal powers or the right to administer
municipal affairs.240 This is because, the Constitutional Court held
further, the mandate of these two spheres is ordinarily limited to
regulating the exercise of executive municipal powers and the
administration of municipal affairs by municipalities.241 In other words,
while the national and provincial spheres of government are entitled to
pass laws regulating the local government matters set out in Schedule
4B and Schedule 5B, 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 administer or implement those
laws.
In Minister of Local Government, Western Cape v Lagoonbay Lifestyle
Estate (Pty) Ltd and Others,242 the Constitutional Court confirmed the
‘vision of robust municipal powers’ when it held:
This Court’s jurisprudence quite clearly establishes that:
(a) barring exceptional circumstances, national and provincial spheres are
not entitled to usurp the functions of local government;
(b) the constitutional vision of autonomous spheres of government must be
preserved;
(c) while the Constitution confers planning responsibilities on each of the
spheres of government, those are different planning responsibilities,
based on ‘what is appropriate to each sphere’;
(d) ‘“planning” in the context of municipal affairs is a term which has
assumed a particular, well-established meaning which includes the zoning
of land and the establishment of townships’; and
 (e) the provincial competence for ‘urban and rural development’ is not wide
enough to include powers that form part of ‘municipal planning’.243

Subsequently, in Minister of Local Government, Environmental Affairs

and Development Planning, Western Cape v The Habitat Council and
Others; Minister of Local Government, Environmental Affairs and
Development Planning, Western Cape v City of Cape Town and Others244
the Constitutional Court was required to decide whether ‘direct
provincial intervention in particular municipal land-use decisions is
compatible with the Constitution’s allocation of functions between local
and provincial government’.245
In its decision, the Court reiterated that ‘[m]unicipalities face
citizens insistent on delivery of governmental services, since they are
the frontiers of service delivery’.246 Accordingly, the Court held that
municipalities are best suited to make decisions regarding zoning and
subdivision of land because these are ‘localised decisions … based on
information that is readily accessible to municipalities’.247 The Court
therefore determined that it is unconstitutional and invalid for the MEC
at provincial level to decide appeals against municipalities’ planning
decisions and to replace them with its own.
A case sharing similar facts to the case immediately above is that of
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and
Development Appeal Tribunal and Others.248 The Constitutional Court
emphasised that the distribution of power among the municipal,
provincial and national spheres of government constitutes the heart of
the South African constitutional dispensation.249 In asserting that
‘provincial interference in municipalities’ exclusive and
constitutionally-enshrined domain’250 is antithetical to the principles of
co-operative government, the Court confirmed the order of the High
Court declaring section 45 of the KwaZulu-Natal Planning and
Development Act 6 of 2008 constitutionally invalid. Section 45 had
provided that:
A person who applied for the development of land situated outside the area of a
scheme or who has lodged written comments in response to an invitation for
public comment on a proposal to develop the land, who is aggrieved by the
 decision of the municipality … may appeal against the municipality’s decision
to the Appeal Tribunal.

The Court was obliged to declare the section invalid because not only
was the Appeal Tribunal situated within the provincial sphere of
government, but the MEC was responsible for appointing the members
of the Appeal Tribunal, thus this Tribunal was not independent.251
Likewise, the case of Shoprite Checkers (Pty) Limited v Premier,
Gauteng Province and Others252 unambiguously provides that a
municipality is vested with the exclusive executive authority to consider
and approve applications for the relaxation of height limitations of all
buildings situated within its municipal area.253

8.3.4.2 Assigned municipal powers

Sections 44(1)(a)(iii) and 104(1)(c) of the Constitution provide that both
the national and provincial governments may increase the legislative
powers of specific municipalities or municipalities in general by
assigning any of their legislative powers to a specific municipality or to
municipalities in general.
Apart from sections 44(1)(a)(iii) and 104(1)(c), sections 99 and 126
of the Constitution provide that a national or provincial Minister may
increase the executive powers of a specific municipality by assigning
their executive powers to the municipal council of that municipality.
The assignment must, however, be consistent with the Act in terms of
which the relevant power is exercised or performed.254
Finally, it is also important to note that section 156(4) of the
Constitution provides that the national and provincial governments
must assign the administration of a matter listed in Part A of Schedule 4
or Part A of Schedule 5 to a municipal council if certain conditions are
met. These conditions are as follows:
• First, the matter necessarily relates to local government.
• Second, the matter would most effectively be administered locally.
• Third, the municipality has the capacity to administer the matter.
• Fourth, the municipal council agrees to the assignment.
A key difference between section 156(4) of the Constitution and
sections 99 and 126 is that while section 156(4) is mandatory, sections
99 and 126 are discretionary. Section 156(4) thus reinforces the
principle of subsidiarity, which requires that the exercise of public
power takes place at a level as close as possible to the citizenry.

The assignment of legislative and executive

powers
It is not entirely clear how section 156(4) of the
Constitution relates to the assignment of legislative
powers in terms of sections 44(1)(a)(iii) and 104(1)
(c) and the assignment of executive powers in terms of
sections 99 and 126. On the one hand, it may be
argued that section 156(4) of the Constitution is an
additional basis for the assignment of both legislative
and executive powers to a municipality. This is because
it refers to the national and provincial ‘governments’
and not simply the national and provincial legislatures.
On the other hand, it may be argued that section
156(4) of the Constitution simply sets out the
circumstances under which the assignment of
executive powers in terms of sections 99 and 126
becomes compulsory. This is because it refers to the
assignment of the ‘administration’ of the matters listed
in Schedules 4A and 5A in terms of an ‘agreement’ to
a ‘specific municipality’.
Steytler and De Visser argue that the terms
‘administration’, ‘agreement’ and ‘specific municipality’
in section 156(4) of the Constitution all point towards
assignments that have their basis in sections 99 and
126 of the Constitution. This means, they argue
further, that section 156(4) is not an additional basis
for assignment, but rather a principle that sets out the
circumstances under which an assignment of executive
 powers in terms of section 99 or 126 becomes
compulsory.255

An assigning agent may set the parameters for the exercise of the
assigned authority in the legislative act of assignment. The assignment
is intended to be a complete transfer of the function and it entails the
final decision-making power in individual matters. Accordingly, the
assignment must conform to the requirements of section 151(4) of the
Constitution. The assignment of powers and functions to municipalities
by legislation or by an executive act or by agreement is regulated by the
Local Government: Municipal Systems Act.

8.3.4.3 Incidental municipal powers

Section 156(5) of the Constitution provides that a municipality has the
right to exercise any power concerning a matter that is reasonably
necessary for or incidental to the effective performance of its functions.
This power is sometimes referred to as the incidental power. The
incidental power refers to those powers that strictly speaking fall
outside the matters over which a municipality has legislative and
executive authority, but are so closely connected to the effective
performance of its functions that they are considered to be a part of the
matters over which a municipality has authority. While they are not
intended to create new functional areas of legislative and executive
authority, the incidental powers do broaden a municipality’s existing
functional areas of legislative and executive authority.

Determining the subject matter of a law

The matters over which a municipality has legislative
and executive authority may be divided into three
categories:
• first, those set out in Schedules 4B and 5B of the
Constitution;
• second, those that have been assigned to a
municipality by the national or provincial
government; and
• third, those that are reasonably necessary for or
incidental to the effective performance of its
functions.

As the judgment in Le Sueur and Another v eThekwini

Municipality and Others256 illustrates, a municipality
may base its power to pass legislation on a particular
subject matter on any one or all three of these
categories. The facts of this case were as follows. In
2010, the eThekwini Municipal Council adopted a
resolution amending its town planning scheme to
introduce the Durban Metropolitan Open Space
System (D-MOSS). This system is aimed at protecting
areas that have a high biodiversity value in Durban by
creating a system of open spaces that will link them
together. To achieve this goal, the system provides that
land which falls within a D-MOSS area may not be
developed without first obtaining an environmental
authorisation. Even then, it may only be developed
subject to strict controls aimed at protecting the
ecological goods and services the land provides.
After the Municipal Council had adopted this
resolution, the applicant, who owned land located in
the eThekwini Municipality, applied for an order
declaring the resolution to be unconstitutional and
invalid. He based his application, among others, on
the grounds that the subject matter of the resolution
was the environment, that this matter is listed in
Schedule 4A as a functional area of national and
provincial legislative competence and, consequently,
that the resolution fell outside the legislative authority
of the Municipal Council.
 The High Court rejected this argument. In arriving
at this decision, the Court noted that the functional
area of municipal planning which is set out in
Schedule 4B must be interpreted in the light of section
24 of the Constitution.257 This section provides that
‘[e]veryone has the right to an environment that is not
harmful to their health or wellbeing’. In addition,
section 152(1)(d) of the Constitution provides that one
of the objectives of local government is to ‘promote a
safe and healthy environment’. These sections clearly
indicate that the functional area of municipal planning
includes responsibility over environmental affairs.258
The Court noted further that it is clear that
legislative and executive authority over environmental
matters as a part of municipal planning has been
assigned to municipalities by national and provincial
legislation.259 Section 23(1)(c) of the Municipal
Systems Act, which deals with integrated development
planning at a municipal level, for example, recognises
that there is an obligation on municipalities together
with other organs of state to contribute to the
progressive realisation of the fundamental rights
contained in section 24 of the Constitution.260
Apart from the grounds set out above, the Court
also appears to have accepted that the environment
may be classified as a matter that is reasonably
necessary for or incidental to the effective performance
of a municipality’s municipal planning function. This is
because municipalities have traditionally been involved
in regulating environmental matters at the local level
and it is inconceivable that the drafters of the
Constitution intended to exclude municipalities from
legislating in this area.261
While the decision appears to be correct, it
highlights the fact that it may not always be easy to
 determine whether the subject matter of a law falls into
one of the functional areas set out in Schedules 4B
and 5B, or into the incidental powers set out in section
156(5) of the Constitution.

8.3.5 Conflicting national, provincial and municipal laws

Given that Parliament, the provincial legislatures and the municipal
councils all have the power to pass laws in respect of the matters listed
in Schedules 4B and 5B, it is inevitable that these laws will on occasion
conflict with one another. 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 legislative and executive authority within
the parameters set by national or provincial legislation. In the absence
of any national or provincial law regulating a local government matter,
however, a municipality is free to determine the content of its legislative
and executive decisions.

8.3.6 Supervision of local government

Although the Constitution confers legislative and executive powers on
local government, it also recognises that local government is the
weakest of the three spheres of government and often lacks the capacity
to exercise these powers.
The Constitution, therefore, also provides that the manner in which
local government exercises its legislative and executive powers must be
supervised by the national and provincial spheres of governments.
These supervisory powers may be divided into four different categories:
1. the power to monitor local government
2. the power to support local government
3. the power to regulate local government
4. the power to intervene in local government.262

The power to monitor local government is set out in section 155(6) of

the Constitution. This section provides that each provincial government
must, by legislative or other measures provide for the monitoring and
support of local government in the province. Provincial governments
must also promote the development of local government capacity to
enable municipalities to perform their functions and to manage their
own affairs. In the First Certification judgment, the Constitutional Court
held that this power grants the provincial governments the authority to
‘observe’ or ‘keep under review’ the manner in which a municipality
manages its affairs. It does not, however, confer on provincial
government the authority to control the affairs of a municipality. It is
accordingly the least intrusive of all the supervisory powers.263
The power to support local government is set out in section 154(1) of
the Constitution. This section provides that the national and provincial
governments, by legislative and other measures, must support and
strengthen the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions.264 In the First
Certification judgment, the Constitutional Court held that this power
grants both the national and provincial governments the authority to
strengthen a municipality’s ability to manage its affairs. It may also be
used by national and provincial governments to prevent a decline or
degeneration in a municipality’s existing structures, powers and
functions.265 It is, therefore, more intrusive than the power to monitor
local government, but not as intrusive as the power to regulate or
intervene.266
The power to regulate local government is set out in section 155(7)
of the Constitution. This section provides that both the national and
provincial governments have the legislative and executive authority to
see to the effective performance by municipalities of their functions in
respect of the matters listed in Schedules 4 and 5 by regulating the
exercise by municipalities of their executive authority. In the First
Certification judgment, the Constitutional Court held that this power
grants the national and provincial governments the authority to
‘control’ the manner in which a municipality manages its affairs.267 It
does not, however, confer on the national and provincial governments
the authority to exercise municipal powers or perform municipal
functions.268 It simply authorises the national and provincial
governments to establish a framework within which a municipality
must perform.269 It is a ‘hands-off’ and not a ‘hands-on’ power.
Section 139(1) of the Constitution provides that when a municipality
cannot or does not fulfil an executive obligation in terms of the
Constitution or legislation, the relevant provincial executive may
intervene by taking any appropriate steps to ensure the fulfilment of
that obligation. The appropriate steps that the provincial executive may
take include measures such as issuing a directive, assuming
responsibility and dissolving a municipal council.270 The power to
intervene in terms of section 139(1) of the Constitution is commonly
referred to as a regular intervention. In the First Certification
judgment, the Constitutional Court explained that the power to
intervene gives the provincial government the authority to intrude on
the functional terrain of local government.271 In other words, it does
confer on provincial government the authority to exercise municipal
powers and perform municipal functions. It is a ‘hands-on’ power. It is,
accordingly, the most intrusive power.272 Given its intrusive nature, the
circumstances under which a provincial government can exercise this
power are not only restricted, but are also subject to various procedural
requirements.
The first important safeguard is that the assumption of responsibility
by the provincial or national government must only ‘be in respect of the
particular obligation that the municipality was failing to perform’.273
Secondly, the assumption of responsibility should be necessary to
maintain essential national standards or to meet the established
minimum standards for the rendering of services.274 Thirdly, any
assumption of responsibility must be necessary to prevent the
municipal council from taking action prejudicial to the interests of
another municipality or to the province.275 Finally, the intervention
must be necessary for purposes of maintaining economic unity.276 Prior
written notice to the municipality of the intention to intervene is
necessary to give effect to the fostering of friendly relations on the basis
of mutual trust and good faith. As an absolute last resort, and only if
exceptional circumstances exist, the dissolution of the municipal
council may occur. This is in terms of the 2003 amendment to the 1996
Constitution.277
Apart from regular interventions, section 139 of the Constitution
also provides for budgetary interventions and financial crises
interventions.
Section 139(4) of the Constitution governs budgetary interventions.
This section provides that if a municipality cannot or does not fulfil an
obligation in terms of the Constitution or legislation to approve a
budget or any revenue-raising measures necessary to give effect to the
budget, the national or relevant provincial executive must intervene by
taking any appropriate steps to ensure that the budget or those
revenue-raising measures are approved. The appropriate steps which
the national or provincial executive may take include measures such as
the mandatory dissolution of the municipal council and the adoption of
a temporary budget or revenue-raising measures.278
The relevant provincial executive is required to intervene if the
municipality, in breach of its constitutional or legislative obligations,
fails to approve a budget or any revenue-raising measures necessary in
order to give effect to the budget.279 This intervention must be aimed at
ensuring that the budget or revenue-raising measures are approved.
The powers of intervention include dissolving the Municipal Council,
appointing a temporary administrator until a new council has been
elected and approving a temporary budget in order to provide for the
continuing functioning of the municipality. In terms of the Municipal
Finance Management Act, the adoption of a budget is deemed pivotal to
the functioning of a municipality as a municipality may only incur
expenditure if it is in accordance with the approved budget.280 The
Constitutional Court in the Fedsure case281 held that the approval of the
budget or resolutions determining rates and taxes are regarded as
legislative acts. As the original draft of section 139 only permitted
interventions in respect of executive actions, the Provincial Executive
was not permitted to intervene where the municipality was failing to
discharge important legislative obligations. The amendment now
permits an intervention where there is a failure to approve a budget.
 Section 139(4) does not have the myriad of process constraints
found in section 139(3). The obligation is simply to submit a written
notice of the intervention to the Minister, to the provincial legislature
and to the NCOP within seven days. Section 139(4) permits an
intervention only when the municipality fails to approve a budget or a
revenue-raising measure. This would generally be objectively verifiable
and unless addressed expeditiously could have serious consequences.
Thus the basis for intervention under section 139(4) and (5) are much
narrower than section 139(1). The Provincial Executive in these
circumstances needs to act expeditiously and decisively and bring an
end to a serious dereliction of responsibility. The SCA in Premier,
Western Cape and Others v Overberg Municipality282 provided the
following guidelines on how section 139(4) should be interpreted:283
• If the municipality fails to approve a budget or any revenue-raising
measures necessary in order to give effect to the budget in breach of
its constitutional or legislative obligations, the provincial executive
is obliged to intervene and act.
• The Provincial Executive is obliged to take some steps, however
there is no obligation that it must dissolve the Council as a first step.
• The Provincial Executive may decide on the intervention that is
required, but the steps taken must be appropriate and suitable.
• The steps taken by the Provincial Executive must ensure that the
annual budget is approved.
• The Provincial Executive must consider less drastic means before
resorting to the dissolution of the Council.
• If the circumstances are such that less drastic measures cannot be
adopted or if these measures failed to yield results then the
Provincial Executive may proceed with the dissolution.

On the facts of the case, the Provincial Executive did not consider less
drastic means other than to dissolve the Council in order to get the
budget approved. The Court held the principle of legality requires the
holder of public power not to misconstrue that power. The Court
concluded that by misconstruing its power under section 139(4), the
Provincial Executive offended the principle of legality. In addition, the
Court held that by dissolving the Council without considering less
drastic options, the Provincial Executive acted contrary to section 41(1)
of the Constitution which requires all spheres of government to respect
the constitutional powers of other spheres and not to assume any power
or function except those conferred upon them. In the circumstances,
the Court set aside the decision of the Provincial Executive to disband
the Council.
Section 139(5) of the Constitution governs financial crises
interventions. This section provides that if a municipality, as a result of a
crisis in its financial affairs, is in serious or persistent material breach of
its obligations to provide basic services or to meet its financial
commitments, or admits that it is unable to meet its obligations or
financial commitments, the national or relevant provincial executive
must impose a financial recovery plan, dissolve the municipal council,
or assume responsibility for the implementation of a recovery plan.

8.4 Financial affairs

8.4.1 Introduction
Apart from dividing legislative and executive power between the
national, provincial and local spheres of government, the Constitution
also divides fiscal powers – the power to collect and spend public funds
– between the three spheres of government. Chapter 13 of the
Constitution sets out the constitutional provisions regulating fiscal
powers. Chapter 13 is sometimes referred to as the financial
constitution. Apart from regulating the power to collect and spend
public funds, Chapter 13 of the Constitution also establishes two
important regulatory bodies, namely the central bank and the Fiscal
and Financial Commission (FFC).

The power of the purse

 Murray and Simeon argue that:
[I]n multilevel systems of government, fiscal federalism, or the
division of revenues and expenditures among central and
provincial governments, may say as much, if not more, about how
power and influence are distributed than the constitutional text.
Constitutional competencies are meaningless without an
accompanying fiscal competence (not to mention other
dimensions of competence such as administrative capacity).
Financial sticks and carrots in a centralized financial system give
the centre power to influence provincial actions and priorities well
beyond the formal allocation of authority.284

After reading Chapter 13 of the Constitution and after

assessing the financial powers of each sphere of
government, it is easier to determine which sphere of
government has been provided with more decisive
powers. From such a study, it becomes apparent that
the provincial sphere of government is less powerful
than the other spheres.

8.4.2 The division of fiscal powers

The division of fiscal powers between different spheres of government
gives rise to a number of difficult questions. Among these are the
following:
• First, whether the power to raise revenue should be distributed
between the different spheres of government or centralised in the
national sphere. In a competitive or divided system of federalism,
for example in Canada, the power to impose taxes is usually
distributed between the different spheres of government. In a co-
operative or integrated system of federalism, such as South Africa,
the power to impose taxes is usually centralised in the national
sphere of government.285
• Second, if the power to impose taxes is centralised in the national
sphere of government, the next question that arises is how the
revenue that has been raised by the national sphere of government
 should be distributed, not only between the different spheres of
government, but also within each sphere. In so far as this question is
concerned, there are a number of different approaches that may be
adopted. The transfer of funds could, for example, take the form of
conditional grants, on the one hand, or unconditional grants, on the
other.286
• Finally, there is also the question of how the decision to divide
national revenue between the different spheres of government and
within each sphere of government should be made and by whom.
Should it be made by the national sphere of government alone or
should the other spheres have a say? What about third parties?
Should they be given a role to play?287

8.4.3 The collection of revenue

As Kriel and Monadjem point out, the power to collect revenue is vested
primarily in the national sphere of government.288 This is because
Chapter 13 of the Constitution restricts the power of the provincial and
local spheres of government to impose taxes. In so far as the provincial
sphere of government is concerned, section 228(1) of the Constitution
provides that a provincial legislature may impose:
• taxes, levies and duties other than income tax, value-added tax,
general sales tax, rates on property or customs duties
• flat-rate surcharges on any tax, levy or duty, other than corporate
income tax, value-added tax, rates on property or customs duty.

An important consequence of these provisions is that the main sources

of revenue such as income tax, value-added tax, general sales tax, and
rates and customs duties have been expressly removed from the
jurisdiction of the provinces.

The reason for the decision to restrict the

power of the provincial legislatures to impose
taxes
Although the power to impose taxes promotes the
principles of accountability and transparency in
government, the drafters of the Constitution decided to
restrict the power of the provincial legislatures to
impose taxes. This is partly because the drafters of the
Constitution believed that the economic disparities that
already exist between the provinces would have been
exacerbated if significant taxing powers were given in
the provinces.
Apart from the provisions set out above, section
228(2) of the Constitution also provides that a
provincial legislature’s power to impose taxes, levies,
duties and surcharges may not be exercised in a way
that materially and unreasonably prejudices national
economic policies, economic activities across
provincial boundaries, or the mobility of goods,
services, capital or labour. In addition, a provincial
legislature’s power to impose taxes must be regulated
by an Act of Parliament which may be passed only
after any recommendations made by the FFC have
been considered.289 The Act of Parliament referred to in
this section is the Provincial Tax Regulation Process
Act.290
The Provincial Tax Regulation Process Act restricts
a provincial legislature’s power to introduce a new
provincial tax. This is because it essentially provides
that if a province wishes to introduce a new provincial
tax, it must first submit a proposal to the Minister of
Finance who, after consulting the Budget Council, must
introduce a Bill into the NA to regulate the new
provincial tax. Given the restrictions imposed by this
Act, it is not surprising that no new provincial taxes
have ever been introduced.
In so far as municipalities are concerned, section 229(1) of the
Constitution provides that a municipality may impose:
• rates on property and surcharges on fees for services provided by or
on behalf of the municipality
• if authorised by national legislation, other taxes, levies and duties
appropriate to local government or to the category of local
government into which the municipality falls.

Like the provincial legislatures, however, municipalities may not

impose income tax, value-added tax, general sales tax or customs duty.
Apart from the provisions set out above, section 229(2) of the
Constitution also provides that a municipality’s power to impose rates
on property, surcharges on fees or other taxes, levies or duties may not
be exercised in a way that materially and unreasonably prejudices
national economic policies, economic activities across provincial
boundaries, or the mobility of goods, services, capital or labour.
In addition, a municipality’s power to impose rates on property,
surcharges on fees or other taxes, levies or duties may be regulated by
national legislation which may be passed only after organised local
government and the FFC have been consulted and any
recommendations made by the FFC have been considered.291 The
national legislation referred to in this section is the Local Government:
Municipal Property Rates Act292 and the Municipal Fiscal Powers and
Functions Act.293 The Municipal Property Rates Act regulates the
municipalities’ power to levy property rates and the Municipal Fiscal
Powers and Functions Act regulates their power to levy surcharges on
fees.

Determining when property is state property

Section 3(3)(a) of the Rating of State Property Act
(Rating Act)294 provides that a municipality may not
impose rates on state property that is held by the state
in trust for the inhabitants of an area that falls into the
jurisdiction of a municipality. In Ingonyama Trust v
eThekwini Municipality,295 the SCA had to decide
whether land owned by the Ingonyama Trust fell into
section 3 of the Rating Act and was therefore exempt
from paying property rates to the eThekwini
Municipality. The Ingonyama Trust was established in
terms of the KwaZulu-Natal Ingonyama Trust Act.296 It
owns all the land that was previously owned by the
government of KwaZulu and is administered by a board
made up of the Ingonyama and eight other members
appointed by the Minister of Land Affairs.
The key issue that the SCA had to decide was
whether the land owned by the Ingonyama Trust could
be classified as state property. The Court held that it
could and, consequently, that the Trust was exempt
from paying rates in terms of section 3 of the Rating
Act.297
In arriving at this decision, the SCA noted that the
land owned by the Ingonyama Trust could be defined
as state property because the Trust itself could be said
to be a part of the state.298 The SCA gave the following
reasons why the Trust could be said to be a part of the
state:
• First, eight of the nine trustees were appointed by
the Minister of Land Affairs who also had the
power to make regulations governing the affairs of
the Trust.299
• Second, the cost of administering the Trust had to
be paid by the Department of Land Affairs.300
• Third, the financial statements of the Trust had to
be audited by the Auditor-General.
• Fourth, an annual report on the activities of the
Trust had to be submitted to the Minister of Land
Affairs by the accounting authority of the Trust.301
• Last, the land owned by the Trust was defined as
state land by Parliament in a number of other
 statutes, for example the National Veld and Forest
Fire Act,302 the National Forests Act303 and the
South African Schools Act.304

8.4.4 The distribution of revenue

Although the Constitution restricts the power of the provincial and local
spheres of government to impose taxes and thus to raise revenue, it
compensates them for this loss by granting them a right to an equitable
share of revenue collected nationally. Section 214(1) of the Constitution
provides in this respect that an Act of Parliament must provide for:
• the equitable division of revenue raised nationally among the
national, provincial and local spheres of government
• the determination of each province’s equitable share of the
provincial share of that revenue
• any other allocations to provinces, local government or
municipalities from the national government’s share of that
revenue, and any conditions on which those allocations may be
made.305

The Act referred to in section 214(1) of the Constitution is the annual

DORA (the budget). Section 214(2) of the Constitution provides that the
DORA may be passed only after the provincial governments, organised
local government and the Financial and Fiscal Commission (FFC) have
been consulted and any recommendations made by the FFC have been
considered. In addition, section 214(2) of the Constitution also provides
that the DORA is required to take into account:
(a) the national interest;
(b) any provision that must be made in respect of the national debt and other
national obligations;
(c) the needs and interests of the national government, determined by
objective criteria;
(d) the need to ensure that the provinces and municipalities are able to
provide basic services and perform the functions allocated to them;
(e) the fiscal capacity and efficiency of the provinces and the municipalities;
 developmental and other needs of provinces, local government and
(f) municipalities;
(g) economic disparities within and among the provinces;
(h) obligations of the provinces in terms of national and provincial legislation;
(i) the desirability of stable and predictable allocations of revenue shares;
and
(j) the need for flexibility in responding to emergencies or other temporary
needs, and other factors based on similar objective criteria.

While regard must be had for the need of the provinces to be able to
provide basic services and carry out their developmental objectives, the
criteria set out in section 214(2) place a heavy emphasis on the
importance of national objectives and priorities. The listing appears to
suggest that the other criteria will be evaluated through the prism of
national objectives. The process preceding the adoption of the DORA is
set out in the Intergovernmental Fiscal Relations Act.306
At least 10 months before the start of each financial year, the FFC
must submit recommendations for an equitable division of revenue
raised nationally between the three spheres of government as well as
each province’s share of the provincial share of national revenue to the
Minister of Finance, Parliament and the provincial legislatures.307 After
receiving the FFC’s recommendations, the Minister of Finance must
consult with the FFC itself, the provinces, either in the Budget Council
or in some other way, and organised local government, either in the
Budget Forum or in some other way.308 The Budget Council and the
Budget Forum are statutory bodies established by the
Intergovernmental Fiscal Relations Act to facilitate intergovernmental
consultation with respect to fiscal matters.309 Once these consultations
have taken place, the Minister of Finance must introduce the annual
Division of Revenue Bill in the NA at the same time that the annual
budget is introduced. The equitable share allocated to each sphere of
government as well as each province’s share of the provincial share of
national revenue must be set out in this Bill.310
The DORA begins by dividing the revenue raised nationally between
the three spheres of government. It then goes on to divide the provincial
share of revenue raised nationally between the provinces and finally it
divides the municipal share of revenue raised nationally between the
municipalities. The amounts allocated to each province and each
municipality are based on different formulae. These formulae are made
up of a number of different components.311
Finally, it is important to note that although the equitable share of
national revenue is supposed to be an unconditional grant, there are
some restraints on the manner in which the provinces may spend this
money. Section 227 of the Constitution, for example, states that ‘each
province is entitled to an equitable share … to enable it to provide basic
services and perform the functions allocated to it’. Provinces, therefore,
must use the equitable share to provide basic services and perform the
functions allocated to them.

8.4.5 The budgetary process

Section 215(1) of the Constitution provides that the national, provincial
and municipal budgetary processes must promote transparency,
accountability and the effective financial management of the economy,
debt and the public sector. In addition, section 215(2) of the
Constitution provides that national legislation must prescribe the form
of national, provincial and municipal budgets; when national and
provincial budgets must be tabled; and that budgets in each sphere of
government must show the sources of revenue and the way in which
proposed expenditure will comply with national legislation. Budgets in
each sphere of government must also contain:
• estimates of revenue and expenditure, differentiating between
capital and current expenditure
• proposals for financing any anticipated deficit for the period to
which they apply
• an indication of intentions regarding borrowing and other forms of
public liability that will increase public debt during the ensuing
year.312

As the Constitutional Court pointed out in the Premier: Limpopo

Province case,313 the Public Finance Management Act (PFMA)314 deals
with public finance. To help achieve the objects of section 215 of the
Constitution, section 27(1) of the PFMA provides that the Minister of
Finance must table the annual budget for the financial year before the
start of that financial year. In addition, the MEC for Finance in each
province must table an annual provincial budget within two weeks of
the Minister’s budget speech unless an extension has been granted by
the Minister of Finance.315 Section 27(3) provides that, among other
factors, the annual budget must contain:
• estimates of all revenue expected to be raised during the financial
year
• estimates for the current expenditure for that financial year
• estimates of interest and debt servicing charges
• any repayments on loans
• estimates of capital expenditure for that financial year and projected
financial implications of that expenditure for future financial years
• estimates of all direct charges against the relevant revenue fund and
standing appropriations for that financial year
• proposals for financing any anticipated deficit in that financial year.

Apart from helping to achieve the objects of section 215 of the

Constitution, the PFMA is also aimed at fulfilling the obligations
imposed on Parliament by section 216 of the Constitution. Section 216
provides that national legislation must establish a national treasury and
prescribes measures to ensure both transparency and expenditure
control in each sphere of government by introducing generally
recognised accounting practices, uniform expenditure classifications
and uniform treasury norms and standards.
Although section 216 of the Constitution imposes an obligation on
Parliament to establish a national treasury and not provincial treasuries,
the PFMA makes provision not only for a national treasury, but also for
a provincial treasury in each province. The Minister of Finance heads
the National Treasury which comprises those departments that are
responsible for financial and fiscal matters.316 The main functions of the
National Treasury are to:
• promote the national government’s fiscal policy framework
• co-ordinate macroeconomic policies
• co-ordinate intergovernmental financial and fiscal relations
• manage the budget preparation process
• exercise control over the implementation of the annual budget
• facilitate the implementation of the annual DORA
• monitor the implementation of the provincial budget
• promote and enforce transparency and effective management in
respect of revenue, expenditure, assets and liabilities of
departments, public entities and constitutional institutions.317

In terms of section 11 of the PFMA, the National Treasury is also in

charge of the National Revenue Fund. The National Revenue Fund is
established in terms of section 213 of the Constitution. This section
provides that all money received by the national government, except
money excluded by an Act of Parliament, must be paid into the fund. In
addition, it also provides that money may be withdrawn from the
National Revenue Fund only in terms of an appropriation by an Act of
Parliament or a direct charge against the National Revenue Fund when
it is provided for in the Constitution or an Act of Parliament. A
province’s equitable share of national revenue is a direct charge against
the National Revenue Fund.
The provincial treasury for each province is headed by the MEC for
Finance in the province and the provincial department responsible for
financial matters in each province.318 The main functions of each
provincial treasury are to:
• prepare a provincial budget
• exercise control over the implementation of the provincial budget
• promote the transparent and effective management in respect of
revenue, expenditure, assets and liabilities of the provincial
departments and provincial public entities
• ensure that its fiscal policies do not materially and unreasonably
prejudice national economic policies.319

In terms of section 21 of the PFMA, each provincial treasury is in charge

of the Provincial Revenue Fund for its province. Provincial Revenue
Funds are established in terms of section 226 of the Constitution. This
section provides that all money received by a provincial government,
except money excluded by an Act of Parliament, must be paid into the
Provincial Revenue Fund. In addition, it also provides that money may
be withdrawn from a Provincial Revenue Fund only in terms of an
appropriation by a provincial Act or a direct charge against the
Provincial Revenue Fund when it is provided for in the Constitution or a
provincial Act. Revenue allocated to local government in terms of
section 214 of the Constitution is a direct charge against a Provincial
Revenue Fund.

8.4.6 The central bank

Section 223 of the Constitution provides that the Reserve Bank is the
central bank of the Republic and that it must be regulated in terms of an
Act of Parliament. The Act referred to in this section is the South African
Reserve Bank Act.320 In terms of section 224(1) of the Constitution, the
‘primary object of the South African Reserve Bank is to protect the value
of the currency in the interest of balanced and sustainable economic
growth …’. In addition, section 224(2) also provides that the bank is
obliged to function independently and without fear, favour or prejudice,
but must consult regularly with the Minister of Finance. The Reserve
Bank plays a key role in the management of the money and banking
system. The Reserve Bank describes this role as follows:
• The formulation and implementation of monetary policy:
Monetary policy refers to the measures taken to influence the
quantity of money and the rate of interest in the country. This assists
is ensuring stability of prices and seeks to promote employment and
economic growth. The Reserve Bank sets the interest rates at which
other banks can borrow money and this ultimately determines the
interest that consumers pay in respect of their debts such as
mortgage bonds.
• The provision of liquidity to banks: When banks face a liquidity
problem as a result of a temporary shortage of cash, the Reserve
Bank provides liquidity to these banks on a conditional and
temporary basis. The main purpose of this assistance is to prevent
 banks going into bankruptcy and people losing their savings and
deposits that they invested in the banks.
• Bank notes and coins: The Reserve Bank has the exclusive authority
to issue and destroy bank notes and coins in the country.
• Banker of other banks: The Reserve Bank is the custodian of the
cash reserves that banks are legally required to hold.321

The Reserve Bank thus plays a vital role in the formulation and
implementation of economic policies. Its decisions have a direct impact
on the lives of people. Importantly, the policy decisions of the Reserve
Bank and the government in power may not always coincide and it is for
this reason that the independence of the Bank is entrenched. The
Reserve Bank is meant to act is the best interests of the economy of the
country and to be shielded from having to act in accordance with the
popular will. The importance of the Reserve Bank to the economy of the
country was recognised by the full bench of the High Court in Absa
Bank Limited and Others v Public Protector.322 The Court held that one
of the functions of the Reserve Bank was to act as a lender of last resort
and prevent instability in the banking sector. Powers of this nature are
exercised internationally by central banks. Importantly, the Court noted
that these powers and functions are exercised by experts with specific
skill and competence in financial matters. The Court went on to hold
that other organs of state such as the Public Protector should not lightly
interfere with the exercise of these discretionary powers.

8.4.7 Procurement

8.4.7.1 Introduction
Section 217 of the Constitution makes it imperative for an organ of state
in the national, provincial or local sphere to contract for goods and
services in a manner that is fair, equitable, transparent, competitive and
cost-effective. However, organs of state are not prevented from
implementing a procurement policy providing for categories of
preferences in the allocation of contracts and the protection or
advancement of persons or categories of persons previously
disadvantaged by unfair discrimination.323 The section goes on to
require national legislation to be enacted to prescribe a framework to
implement the policy of preference to previously disadvantaged
persons. The Preferential Procurement Policy Framework Act (PPPFA)324
is the empowering legislation that seeks to achieve this objective.
In Millennium Waste Management (Pty) Ltd v Chairperson of the
Tender Board: Limpopo Province and Others,325 the SCA required
tenders to be evaluated in a manner that advances the five
constitutional values identified in section 217 of the Constitution. In
this case, the appellant had submitted its tender which met all the
specifications of the advertisement. However, the appellant had
inadvertently omitted to sign the declaration of interest, but had
inserted the name of the relevant person and had filled in the relevant
information. A tender committee on behalf of the Limpopo Department
of Health and Social Development disqualified the applicant and finally
awarded the tender to a consortium called TTP. A particularly
concerning aspect was that TTP’s bid for the removal, treatment and
disposal of hospital waste was R3 600 000 per month which was
significantly more than appellant’s tender which would have cost the
Department R400 000 per month.
The Tender Board argued that the signing of the declaration of
interest was peremptory and as the appellant had not signed it, the
Tender Board was obliged to disqualify the appellant.
The SCA held that the decision to award the tender was
administrative action and had to comply with the provisions of the
Promotion of Administrative Justice Act (PAJA),326 with section 217 of
the Constitution and with the PPPFA.327 Interpreting the regulations in
terms of which the Tender Board was acting, the SCA held that the
Tender Board had the power to condone non-compliance with
procedural defects in the application.328 However, the SCA went on to
hold that ‘our law permits condonation of non-compliance with
peremptory requirements in cases where condonation is not
incompatible with public interest and if such condonation is granted by
the body in whose benefit the provision was enacted’.329 The SCA stated
further that the condonation of the failure to sign would have been in
the public interest as it would have facilitated competitiveness.330 A
condonation in this instance would have served the broader
constitutional values of fairness, competiveness and cost-
effectiveness.331
Importantly, the SCA held that whether the appellant’s tender
constituted an acceptable tender in terms of the PPPFA must be
construed in the context of a system that is fair, equitable, transparent,
competitive and cost-effective.332 In other words, the constitutional
values must be the prism through which the enabling legislation must
be interpreted. The SCA held the term ‘tender’ must be given a
relatively narrow meaning and cannot mean that the tender must
comply with conditions which are immaterial, unreasonable or
unconstitutional.333 The SCA concluded that by insisting on
disqualifying the appellant for an innocent omission, the Tender Board
had acted unreasonably.334 The SCA set aside the decision of the Tender
Board and ordered the Tender Board to reconsider and adjudicate on
the bids submitted by the appellant and TTP afresh. The Court thus
assessed the entire tender process against the five values identified in
the Constitution and not just the final evaluation process of the
shortlisted candidates.

When is condonation permissible?

Assume that the price differential was not as stark and
assume that tenderer B had submitted their tender a
day after the date stipulated in the advertisement.
Tenderer B tendered to remove hospital waste for
R400 000 per month and the successful tenderer
(Tenderer A) quoted R1 million per month. In all other
respects, the tenders are similar. Does the Millennium
Waste Management case allow a tender board to
entertain the late submission of the tender by tenderer
B? Alternatively, could such an option not be used to
overlook all sorts of non-compliance and in the final
analysis be contrary to the values in the Constitution?
 In Minister of Social Development and Others v
Phoenix Cash & Carry Pmb CC,335 the SCA once again
reiterated that the five principles of fairness, equitable
treatment, transparency, competitiveness and cost-
effectiveness must inform all aspects of the tender
process. In a frank judgment, the SCA directly
questioned the legitimacy of the process that led to
the appellants being denied the tender and in a
damning indictment indicated that from its experience
drawn from matters before the Court, the values of
section 217 are honoured more in their breach than in
their observance.336
The facts of this case were as follows. Bids were
invited to supply food hampers to indigent families in
KwaZulu-Natal and in the Eastern Cape. The price of
the bid submitted by Phoenix was approximately 40%
less than that submitted by the successful tenderer. In
response to a request for reasons, the department
indicated that it had evaluated the bids and that
Phoenix was unsuccessful. Subsequently, the
department attempted to supplement their reasons by
stating that Phoenix had not complied with certain
prerequisites.
The SCA found that the department in excluding
the bid by Phoenix had elevated form above
substance.337 Had it properly appraised the documents
submitted, it would have concluded that the material
issues dealing with financial viability had been dealt
with even though no audited statements were
submitted.338 Accordingly, the SCA held that the
process was fundamentally flawed and set aside the
decision. In an effort to prevent such a fundamentally
flawed process from being repeated, the Court laid
down the following principles:
 • It is against the principle of fairness for the tender
process to be evaluated on the basis of uncertain
criteria which could have the effect of meritorious
applicants being excluded.
• A process that emphasises form over substance
could have the effect of facilitating corrupt
practices by providing an excuse not to consider
meritorious tenders and by excluding them on
technicalities. This is often inimical to fairness,
competitiveness and cost-effectiveness.
• The tender board can prescribe formalities,
provided the requirements are made clear and the
consequences of non-compliance spelt out.339
• The SCA cautioned against unreasonably elevating
matters of subsidiary importance to a level of
primary importance and then deeming non-
compliance to be fatal to the bid.340

Section 217 of the Constitution must be read with section 5 of the PAJA
which requires a functionary to provide adequate reasons for
administrative decisions which materially and adversely affect rights if
requested. Once reasons are provided, the decision can be appraised
against the constitutional criteria in section 217. In the Phoenix Cash &
Carry case, the reasons supplied were woefully inadequate and the
supplementary reasons confirmed that, at best, an unreasonable and
irrational decision had been made. The tenor of the judgment appears
to suggest that the irrationality bordered on improper conduct.
What is apparent from these decisions is that while price may not be
the decisive factor, massive disparities in pricing will weigh with the
court when determining whether a public body has discharged its
ultimate mandate of acting in the public good. It would be advisable
therefore that if the successful tenderer’s contract price is much more
expensive than the unsuccessful tenderer, that the reasons provided
deal with the disparity in price and justify the decision to award the
tender despite the price difference.
The issue of whether inconsequential irregularities can be
disregarded was considered by the Constitutional Court in Allpay
Consolidated Investment Holding (Pty) Ltd and Others v Chief Executive
Officer of the South African Social Security Agency and Others341 in which
Allpay, the unsuccessful bidders, challenged the legality of awarding the
tender to Cash Paymaster Services. The SCA held that ‘a fair process
does not demand perfection and that not every flaw is fatal’. 342 It went
on to state that ‘[i]t would be gravely prejudicial to the public interest if
the law was to invalidate public contracts for inconsequential
irregularities’. Thus, it appeared that the SCA was suggesting that
irregularities that were inconsequential to the final decision or outcome
could be ignored. The Constitutional Court disagreed, and held that the
suggestion ‘that “inconsequential irregularities” are of no moment
conflates the test for irregularities and their import’.343 The
Constitutional Court took the view that process requirements cannot be
conflated with the merits, and went on to hold:
To the extent that the judgment of the Supreme Court of Appeal may be
interpreted as suggesting that the public interest in procurement matters
requires greater caution in finding that grounds for judicial review exist in a
given matter, that misapprehension must be dispelled. So too the notion that
even if proven irregularities exist, the inevitability of a certain outcome is a
factor that should be considered in determining the validity of administrative
action. 344

The Constitutional Court held that complying with process formalities

serves three purposes:
(a) It ensures fairness to the participants in the bid process.
(b) It enhances the likelihood of efficiency and optimality in the
outcome.
(c) It serves as a guardian against a process skewed by corrupt
influences.

This approach accords with the imperative in section 217 of the

Constitution that organs of state, when contracting for goods or
services, must do so in a fair, equitable, transparent, competitive, and
cost-effective manner.
However, it is apparent from the Constitutional Court judgment in
AllPay that the irregularity and non-compliance must be material. The
court suggested that the proper approach involves a two-pronged
analysis:
• Firstly, it must be determined whether an irregularity or non-
compliance has occurred.
• Secondly, if so, such irregularity or non-compliance must be legally
evaluated to ascertain whether such irregularity or non-compliance
would amount to a ground of review under PAJA.

Dealing with disparities in price

When a tender is awarded to a body that did not
submit the lowest tender, the state is paying more for a
service or product. Assume that Cleaners Incorporated,
a group of female cleaners who have been cleaning the
officers of the KZN Provincial Administration for the last
five years, form a consortium and bid for a new
provincial government cleaning contract against their
previous employers, Sparkling Clean CC. Most
members of Cleaners Incorporated are African female
and many of them are sole breadwinners. Their bid is
R10 000 more a month to clean the buildings than the
corresponding offer by Sparkling Clean, which is a
national company.
Should the government procurement policy be
used to bridge the economic disparity in our society or
should government attempt to obtain the maximum
value for its rands given the demands on a limited
budget?
8.4.7.2 The Preferential Procurement Policy Framework Act 5 of
2000
While section 217(1) of the Constitution imposes an obligation to act in
terms of a system that accords with the five principles, section 217(2)
permits public bodies to implement a preferential procurement policy.
The PPPFA requires organs of state to determine a preferential
procurement policy and to implement it.345
Section 2 of the PPPFA draws a distinction between contracts above
the prescribed amount346 and contracts below the prescribed amount.
In respect of contracts above the prescribed amount, a maximum of 10
points may be allocated for the specific goals identified in the PPPFA
while in respect of contracts below the prescribed amount a maximum
of 20 points may be allocated for the specific goals. The specific goals
relate to contracting with people who were historically disadvantaged
by unfair discrimination on the basis of race, gender, sex or disability or
for the purposes of implementing the Reconstruction and Development
Programme. The points allocated must be out of 100.
The process envisaged by the PPPFA is that:
• persons are invited to tender in respect of a formal tender proposal
• all applications are assessed in terms of evaluation criteria
specifically identified in the tender proposal
• the various bids are ranked in terms of each evaluation criteria.347

Previously the body scoring the highest points was allocated the tender.
Thus, the PPPFA and the regulations of 2011 adopted a fairly rigid
system to ensure that price is allocated the overwhelming segment of
the points, but that equity issues are not ignored. However, in terms of
the 2017 regulations to the PPPFA348 (which repealed the 2011
regulations), far more flexibility is conferred on organs of state.
Examples of this flexibility include the fact that as a result of the case of
South African National Road Agency Ltd v The Toll Collect Consortium
and Another,349 as read with Regulation 9(2), it is now compulsory for
organs of state to specify ‘objective criteria’ upfront in the tender
advertisement. These objective criteria encompass such aspects as the
intention to use procurement to promote local industrial development,
the imperative of achieving socio-economic transformation and the
empowerment of small business enterprises, rural and township
enterprises, as well as co-operatives. Furthermore, Regulation 9
authorises an organ of states to insert a condition into the tender
advertisement to the effect that the successful bidder is required to
subcontract a minimum of 30% of the value of its bid to designated
groups as stipulated in Regulation 4. A third example is that Regulation
6(9) and 7(9) provide that ‘If the price offered by a tender scoring the
highest point is not market-related, the organ of state may not award the
contract to that tender’. Therefore, the organ of state is now empowered
to negotiate a market-related price with the bidder that has scored the
highest points. If these negotiations fail, the organ of state may
negotiate with the second highest scoring bidder or even the third
highest scoring bidder. A tender may only be cancelled if no agreement
is able to be reached.

SUMMARY

The Constitution does not only divide power vertically, but also
horizontally between the national, provincial and local spheres of
government. This horizontal division of power establishes a quasi-
federal system of government. Power is divided largely according to an
integrated model of federalism in which the subject matters in respect
of which policies and laws may be made are not strictly divided
between the different levels or spheres of government but are shared
between them. To ensure that this system works optimally, the
Constitution also establishes the principle of co-operative government,
requiring the various spheres of government to work together
regardless of the political party in power nationally, provincially or at
local government level. The National Council of Provinces (NCOP), the
second House of the national legislature, plays an important role in co-
ordinating the legislative activities of the three spheres of government.
The structures of government for the nine provinces largely mirror
that of the national sphere. 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 Schedules 4 (concurrent powers shared
with the national executive) and 5 (exclusive powers) of the
Constitution. Provincial legislatures operate largely in the same manner
and according to the same principles as the national legislature.
However, provincial legislatures only have one House and not two
although their interests are represented in the NCOP at national level.
When both the national legislature and the provincial legislature pass
legislation on one of the areas listed in Schedule 4, the provincial
legislation shall prevail except if one of the criteria set out in section 146
of the Constitution is present in which case the national legislation shall
prevail. It will only be permissible in exceptional circumstances for the
national legislature to pass legislation relating to one of the areas
exclusively reserved for provinces in Schedule 5 if this is authorised by
section 44(2) of the Constitution. When determining whether the
subject matter of a Bill falls within Schedule 4 or Schedule 5, we must
apply the pith and substance test. This test must be distinguished from
the substantial measure test used to decide how to tag a national Bill to
decide on the procedure to be used to pass it.
In the constitutional dispensation, local government fulfils an
important role. Municipalities thus enjoy original and constitutionally
entrenched powers, functions, rights and duties that may be qualified
or constrained by law and only to the extent to which these are set out
in section 152(1) of the Constitution. 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.
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. In
addition, municipalities may make and administer by-laws for the
effective administration of the matters 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 legislative and executive authority within
the parameters set by national or provincial legislation. In the absence
of any national or provincial law regulating a local government matter,
however, a municipality is free to determine the content of its legislative
and executive decisions.
The financial arrangements in the Constitution tilt power decisively
in favour of the national sphere of government as the power to collect
revenue is vested primarily in the national sphere of government. This is
because Chapter 13 of the Constitution restricts the power of the
provincial and local spheres of government to impose taxes. Although
the Constitution restricts the power of the provincial and local spheres
of government to impose taxes and thus to raise revenue, it
compensates them for this loss by granting them a right to an equitable
share of revenue collected nationally. Section 215(1) of the Constitution
provides that the national, provincial and municipal budgetary
processes must promote transparency, accountability and the effective
financial management of the economy, debt and the public sector.
Section 217 of the Constitution also makes it imperative for an organ of
state in the national, provincial or local sphere to contract for goods and
services in a manner that is fair, equitable, transparent, competitive and
cost-effective.

1 Mathenjwa, M (2017) Supervision of Local Government 24.

2 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (CC)
(14 October 1998) para 26.
3 City of Cape Town and Others v Robertson and Others (CCT 19/04) [2004] ZACC 21; 2005 (2)
SA 323 (CC) (29 November 2004). See also Fedsure para 38 and CDA Boerdery (Edms) Bpk
en Andere v Nelson Mandela Metropolitan Municipality (526/05) [2007] ZASCA 1; 2007 (4)
SA 276 (SCA) (6 February 2007) para 60.
4 City of Cape Town para 60.
5 5City of Cape Town para 60.
6 While the phrase ‘level of government’ is applied in other states, in this chapter we only use
the term ‘sphere’ to reinforce the fact that South Africa’s constitutional dispensation
expressly provides for spheres of government as opposed to a hierarchical governmental
structure.
7 7Hueglin, TO and Fenna, A Comparative Federalism: A Systematic Inquiry (2006) 61.
8 8Hueglin and Fenna (2006) 61.
9 9Prior to 1994, South Africa had a unitary system of government. While provincial and local
spheres of government existed, they were subservient to and subject to the control of a
strong central government where all meaningful decisions were made. The constitutional
system prior to 1994 was thus a unified one with little divergence in laws between the
various provinces.
10 Goldman, I ‘How does government evaluation in South Africa contribute to democracy?’ in
Podems, D (2017) Democratic Evaluation and Democracy: Exploring the Reality 107.
11 Mathenjwa (2017) 7, quoting Bennett, TW (2004) Customary Law 102.
12 Mathenjwa (2017) 7.
13 Mathenjwa (2017) 8, quoting Bennett (2004) 107.
14 The National States Citizenship Act 26 of 1970 provided that every black person would
become a citizen of the tribal entity to which he or she had a tribal or cultural affiliation
and would simultaneously cease to be a citizen of South Africa. The fact that they did not
live in that entity nor desired the new citizenship was irrelevant. The apartheid government
described this as a process of internal decolonisation. In reality, it was nothing other than
denationalisation. The homelands were impoverished parcels of land cobbled together to
create ‘independent states’. They were totally dependent on the South African state for their
financial survival and were provided with monthly grants. Towards the end of the 1980s,
most of the independent homelands had collapsed into military dictatorships and were
dysfunctional. The apartheid grand design had unravelled even before formal negotiations
began. See also ch 1.
15 Haysom, N ‘Federal features of the final Constitution’ in Andrews, P and Ellmann, S (eds)
(2001) The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law 504.
16 See Woolman, S and Swanepoel, J ‘Constitutional history’ in Woolman, S and Bishop, M
(eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 2.37. For a more
detailed discussion of the approach adopted by the different political parties during the
process of negotiations, see Spitz, R and Chaskalson, M (2000) The Politics of Transition: A
Hidden History of South Africa’s Negotiated Settlement 122.
17 Principle XVI of Schedule 4 of the interim Constitution.
18 Principle XVIII.
19 Principle XIX.
20 Principle XXI.
21 Principle XXII.
22 Principle XXIII.
23 23Principle XXIV.
24 Principle XXVI.
25 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) para 472.
26 First Certification paras 480–1.
27 1997 (1) BCLR 1; 1997 (2) SA 97 (CC) paras 109–10.
28 28Freedman, DW (2012) ‘Constitutional law: Structures of government’ in Joubert, WA (ed)
(2012) Law of South Africa 2nd ed Vol 5 Part 4 para 57.
29 Freedman (2012) para 57.
30 S 146(2) provides that central (national) law will prevail if:
• Central legislation deals with a matter that cannot be regulated effectively by
legislation enacted by the respective provinces individually.
• Central legislation deals with a matter that requires uniformity across the nation, and
national legislation provides that uniformity by establishing norms and standards,
frameworks or national policies.
• Central legislation is necessary for:
– the maintenance of national security;
– the maintenance of economic unity;
– the protection of the 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.
S 146(3) provides that national law will prevail if it is aimed at preventing unreasonable
action by a province that is prejudicial to the economic, health or security interests of
another province or the country as a whole, or impedes the implementation of national
economic policy.
31 S 44(2) provides that national parliament may intervene only if it is necessary:
• To maintain national security
• To maintain economic unity
• To maintain essential national standards
• To establish minimum standards required for the rendering of services
• To prevent unreasonable action taken by a province which is prejudicial to the interest
of another province or to the country as a whole.
In the event that Parliament intervenes and passes legislation, a conflict arises. The conflict
is resolved in terms of section 147(2) of the Constitution, which provides that national
legislation prevails over provincial legislation that falls within functional areas in Schedule
5.
32 Freedman (2012) para 57.
33 S 104(1)(b) of the Constitution.
34 S 40(1) of the Constitution.
35 S 40(2) of the Constitution.
36 S 41(1) of the Constitution.
37 S 41(1)(e) of the Constitution.
38 S 41(1)(f) of the Constitution.
39 39S 41(1)(g) of the Constitution.
40 S 41(1)(h) of the Constitution.
41 S 41(3) of the Constitution.
42 Woolman, S et al (2006) Constitutional Law of South Africa ch 14.1.
43 Independent Electoral Commission v Langeberg Municipality (CCT 49/00) [2001] ZACC 23;
2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June 2001).
44 Langeberg para 22.
45 Langeberg paras 27–9.
46 Langeberg para 31.
47 Uthukela District Municipality and Others v President of the Republic of South Africa and
Others (CCT7/02) [2002] ZACC 11; 2003 (1) SA 678 (CC); 2002 (11) BCLR 1220 (CC) (12 June
2002) para 18.
48 First Certification para 291; Uthukela para 13.
49 Uthukela para 14.
50 Uthukela para 13.
51 Act 13 of 2005.
52 Mathenjwa (2017) 30.
53 S 2 of the IGRFA.
54 S 4 of the IGRFA.
55 S 4(a)–(d) of the IGRFA.
56 S 6 of the IGRFA.
57 S 9 of the IGRFA.
58 S 18 of the IGRFA.
59 S 24 of the IGRFA.
60 See Steytler, N ‘Co-operative and coercive models of intergovernmental relations: A South
African case study’ in Courchene, TJ and Allen, JR (eds) (2011) The Federal Idea: Essays in
Honour of Ronald L. Watts 413–28.
61 Mathenjwa (2017) 34.
62 Handmaker, J and Berkhout, R (eds) (2010) Mobilising Social Justice in South Africa:
Perspectives from Researchers and Practitioners. The Hague: ISS and Hivos 5.
63 S 35 of the IGFRA.
64 In 2010, a government wide monitoring and evaluation system, known as the Department
of Planning Monitoring and Evaluation was established and is situated within the
Presidency. This is a cross-cutting system that monitors and evaluates all departments in
government. A National Evaluation Policy was produced in 2011. Its purpose is to improve
policy or program performance, improve accountability, improve decision-making and
generate knowledge for learning.
65 S 35(3) of the IGRFA.
66 66S 1 of the IGRFA.
67 S 39(1)(b) of the IGRFA.
68 68S 40 of the IGRFA.
69 69S 41 of the IGRFA.
70 70S 42 of the IGRFA.
71 S 42(3) of the IGRFA.
72 72S 43 of the IGRFA.
73 S 125(2)(c) of the Constitution.
74 S 103(1) of the Constitution.
75 Ss 104–124 of the Constitution.
76 Ss 125–141 of the Constitution.
77 Gallans, M (2017, July 10) ANC pushes ahead with plan to reduce number of provinces,
available at https://www.news24.com/SouthAfrica/News/anc-pushes-ahead-with-plan-
to-reduce-number-of-provinces-20170710.
78 Friedman, S (2018, May 18) Citizens are better served with provincial governments,
accessed on 3 December 2019 at
https://www.businesslive.co.za/bd/opinion/columnists/2018-05-16-steven-friedman-
citizens-are-better-served-with-provincial-governments/.
79 S 142 of the Constitution.
80 See Certification of the KwaZulu-Natal Constitution (CCT15/96) [1996] ZACC 17; 1996 (4)
SA 1098 (CC); 1996 (11) BCLR 1419 (CC) (6 September 1996).
81 Certification of the KwaZulu-Natal Constitution para 8. See also Certification of the
Constitution of the Western Cape, 1997 (CCT29/97) [1997] ZACC 15; 1998 (1) SA 655 (CC);
1997 (12) BCLR 1653 (CC) (18 November 1997) para 8.
82 S 104(1)(b)(i) of the Constitution.
83 S 104(1)(b)(ii) of the Constitution.
84 S 104(1)(b)(iii) of the Constitution.
85 S 104(1)(b)(iv) of the Constitution.
86 S 104(1)(c) of the Constitution.
87 S 104(2) of the Constitution.
88 S 104(4) of the Constitution.
89 S 105(2) of the Constitution. The legislation referred to in s 105(2) is the Electoral Act 73 of
1998. The formula for determining the number of members of each provincial legislature is
set out in Schedule 3 of the Electoral Act.
90 S 13 of the Constitution of the Western Cape determines the size to be 42.
91 S 106 of the Constitution.
92 S 109 of the Constitution.
93 S 113 of the Constitution.
94 S 125(2) of the Constitution.
95 S 125(3) of the Constitution.
96 S 125(3) of the Constitution.
97 S 125(4) of the Constitution.
98 98S 126 of the Constitution.
99 99S 128 of the Constitution.
100 100Premier: Limpopo Province v Speaker of the Limpopo Provincial Legislature and Others
(CCT 94/10) [2011] ZACC 25; 2011 (6) SA 396 (CC); 2011 (11) BCLR 1181 (CC) (11 August
2011).
101 101S 121 of the Constitution enables the Premier of a province to refer a Bill back to the
provincial legislature if he or she has misgivings about the constitutionality of the Bill. The
section goes on to provide that if the reservations are not adequately addressed by the
 provincial legislature, the Premier may refer the Bill to the Constitutional Court for a
decision.
102 Act 10 of 2009. S 104(1)(b)(iii) of the Constitution provides that each provincial legislature
has the power ‘to pass legislation for its province with regard to any matter outside (the
functional areas listed in Schedules 4 and 5), and that is expressly assigned to the province
by national legislation’.
103 103S 104(1)(b)(iv) of the Constitution provides that each provincial legislature has the
power ‘to pass legislation for its province with regard to any matter for which a provision of
the Constitution envisages the enactment of provincial legislation’.
104 104Premier: Limpopo Province para 24.
105 105Premier: Limpopo Province para 24.
106 106Premier: Limpopo Province para 21.
107 107Premier: Limpopo Province para 23.
108 108Premier: Limpopo Province paras 34–9.
109 109Premier: Limpopo Province para 36.
110 110Premier: Limpopo Province para 37.
111 111Premier: Limpopo Province para 38.
112 112Premier: Limpopo Province para 39.
113 113Premier: Limpopo Province para 40.
114 114Premier: Limpopo Province para 41.
115 115Premier: Limpopo Province para 41.
116 116Premier: Limpopo Province para 53.
117 117Premier: Limpopo Province para 60.
118 118Premier: Limpopo Province para 85.
119 119Premier: Limpopo Province para 85.
120 120Premier: Limpopo Province para 85.
121 121Premier: Limpopo Province para 92.
122 122For a critical discussion of this judgment, see Steytler, N and Williams, RF (2012)
‘Squeezing out provinces’ legislative competence in Premier: Limpopo Province v Speaker:
Limpopo Provincial Legislative and Others I and II’ South African Law Journal 129(4):621–
37.
123 123S 146(5) of the Constitution.
124 Western Cape Provincial Government & Others: In re DVB Behuising (Pty) Ltd v North West
Provincial Government & Another [2000] ZACC 2; 2001 (1) SA 500 (CC) at para 36;
Democratic Alliance v President of South Africa and Others (18392/13) [2014] ZAWCHC 31;
[2014] 2 All SA 569 (WCC); 2014 (4) SA 402 (WCC); 2014 (7) BCLR 800 (WCC) (13 March
2014) para 63.
125 South African Municipal Worker’s Union v Minister of Co-Operative Governance and
Traditional Affairs (3558/2013) [2016] ZAGPPHC 733 (23 February 2016) para 69.
126 126Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor
Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732 (CC); 2000 (1) BCLR 1 (CC).
127 127Liquor Bill para 55.
128 128Liquor Bill para 39.
129 129Liquor Bill para 39.
130 130Liquor Bill para 46.
131 131Liquor Bill para 47.
132 132Liquor Bill para 50.
133 133Liquor Bill para 51.
134 134Liquor Bill para 61.
135 135Liquor Bill para 73.
136 136Liquor Bill para 75.
137 137Liquor Bill para 74.
138 138Liquor Bill para 86.
139 139Liquor Bill paras 59–60.
140 (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010)
para 59–60.
141 141Liquor Bill para 76.
142 142Abahlali baseMjondolo Movement SA and Another v Premier of the Province of
KwaZulu-Natal and Others 2010 (2) BCLR 99 (CC).
143 143Act 6 of 2007.
144 144Abahlali para 20.
145 145Abahlali para 21.
146 146Abahlali para 26.
147 147Abahlali para 29.
148 148Abahlali para 30.
149 149Abahlali para 37.
150 150Abahlali para 40.
151 151Act 19 of 1998.
152 152Abahlali para 92.
153 153See In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, In re:
Payment of Salaries. Allowances and Other privileges to the Ingonyama Bill of 1995
(CCT1/96, CCT6/96) [1996] ZACC 15; 1996 (4) SA 653 (CC); 1996 (7) BCLR 903 (CC) (5 July
1996). See also Bronstein, V ‘Conflicts’ in Woolman and Bishop (2013) 16.4.
154 154Executive Council of the Western Cape Legislature and Others v President of the Republic
of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10)
BCLR 1289 (CC) (22 September 1995).
155 155Klaaren, J ‘Federalism’ in Chaskalson, M et al (eds) (1999) Constitutional Law of South
Africa 1st ed 5–12.
156 156S 146(1) of the Constitution.
157 157S 149 of the Constitution.
158 Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the
Executive Council for Education, Gauteng and Another [2016] ZACC 14; 2016 (4) SA 546
(CC); 2016 (8) BCLR 1050 (CC) (20 May 2016) para 26.
159 159S 146(2)(a) of the Constitution.
160 160S 146(2)(b) of the Constitution.
161 161S 146(2)(c) of the Constitution.
162 162Mashavha v President of the Republic of South Africa and Others 2005 (2) SA 476 (CC);
2004 (12) BCLR 1243 (CC).
163 163Act 59 of 1992.
164 164This was the predecessor of s 146 of the final Constitution.
165 165Mashavha para 57.
166 166Bronstein (2013) 16.19.
167 167Mashavha para 51.
168 168Mashavha para 57.
169 169S 100(1) of the Constitution.
170 S 100(1)(a) of the Constitution.
171 S 100(2)(a) of the Constitution.
172 S 100(2)(b) of the Constitution.
173 S 42(4) of the Constitution.
174 174Joseph and Others v City of Johannesburg and Others (CCT 43/09) [2009] ZACC 30; 2010
(4) SA 55 (CC); 2010 (3) BCLR 212 (CC) (9 October 2009) para 34.
175 Mathenjwa (2017) 37, quoting Steytler, N and De Visser, J (2007) Local Government Law of
South Africa ch2:3.
176 Act 32 of 2000.
177 177Joseph para 39.
178 City of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC
19; 2016 (6) SA 279 (CC); 2016 (9) BCLR 1133 (CC) (21 July 2016).
179 Tshwane para 69.
180 Tshwane para 21.
181 Tshwane para 12.
182 Welsh, D ‘Can South Africa become a nation state?’ in van Vuuren, DJ et al (eds) (1991)
South Africa in the Nineties 563.
183 Tshwane para 23.
184 Tshwane para 68.
185 Tshwane para 24.
186 Tshwane para 29.
187 Tshwane para 41.
188 Tshwane para 79.
189 Tshwane para 58.
190 Young, RJC (2003) Postcolonialism: A very short introduction 139.
191 Tshwane para 124.
192 Ndlovu-Gatsheni, SJ ‘Racism and “blackism” in a world scale’ in Rutazibwa, OU and
Shilliam, R (eds) (2018) Routledge Handbook of Postcolonial Politics 75.
193 Tshwane para 121.
194 Tshwane para 11.
195 Tshwane para 70.
196 Tshwane para 67.
197 Tshwane para 68.
198 Act 117 of 1998.
199 Steytler, N and De Visser, J ‘Local government’ in Woolman and Bishop (2013) 22.20.
200 Act 27 of 1998.
201 Matatiele Municipality and Others v President of the Republic of South Africa and Others
(CCT73/05) [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC) (27 February
2006).
202 Act 23 of 2005.
203 Matatiele Municipality para 41.
204 Matatiele Municipality para 41.
205 Matatiele Municipality para 41.
206 206S 7 of the Municipal Structures Act.
207 S 8 of the Municipal Structures Act.
208 S 9 of the Municipal Structures Act.
209 S 10 of the Municipal Structures Act.
210 S 155(4) of the Constitution.
211 Act 117 of 1998.
212 City of Cape Town para 55.
213 S 156(1)(a) of the Constitution.
214 S 156(1)(b) of the Constitution.
215 S 156(2) of the Constitution.
216 A municipality also has those powers that have been granted to it by its own by-laws.
217 Norman-Major, KA and Gooden, ST (eds) (2012) Cultural Competence for Public
Administrators 24–5.
218 Norman-Major and Gooden 24–5.
219 GN 423, GG 18739, 15 March 1998.
220 Mathenjwa (2017) 39.
221 See Steytler and De Visser (2013) 22.47.
222 Executive Council of the Province of the Western Cape v Minister for Provincial Affairs and
Constitutional Development and Another, Executive Council of KwaZulu-Natal v President
of the Republic of South Africa and Others (CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1)
SA 661 (CC); 1999 (12) BCLR 1360 (CC) (15 October 1999).
223 Executive Council, Western Cape para 29.
224 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and
Others (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) (18 June
2010). See also Maccsand (Pty) Ltd v City of Cape Town and Others (CCT103/11) (CC)
[2012] ZACC 7; 2012 (4) SA 181 (CC); 2012 (7) BCLR 690 (CC) (12 April 2012).
225 See also Steytler and De Visser (2013) 22.21–22.22.
226 Steytler and De Visser (2013) 22.21–22.22.
227 Gauteng Development Tribunal para 57.
228 Gauteng Development Tribunal para 57.
229 Gauteng Development Tribunal para 57.
230 Gauteng Development Tribunal para 58.
231 Gauteng Development Tribunal para 58.
232 Gauteng Development Tribunal para 63.
233 Gauteng Development Tribunal para 63.
234 S 44(1) of the Constitution.
235 S 104(1) of the Constitution.
236 Schedule 4 of the Constitution.
237 Schedule 5 of the Constitution.
238 S 41(1)(e) and (f) of the Constitution.
 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others
239 (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) (18 June 2010).
240 Gauteng Development Tribunal para 43.
241 Gauteng Development Tribunal para 59.
242 Minister of Local Government, Environmental Affairs and Development Planning of the
Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others (CCT 41/13) [2013] ZACC
39; 2014 (1) SA 521 (CC); 2014 (2) BCLR 182 (CC) (20 November 2013).
243 Lagoonbay para 46.
244 Minister of Local Government, Environmental Affairs and Development Planning, Western
Cape v The Habitat Council and Others; Minister of Local Government, Environmental
Affairs and Development Planning, Western Cape v City of Cape Town and Others (117/13)
[2014] ZACC 9; 2014 (4) SA 437 (CC); 2014 (5) BCLR 591 (CC) (4 April 2014).
245 Para 1.
246 Para 14.
247 Para 14.
248 Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal
and Others (CCT114/15) [2016] ZACC 2; 2016 (3) SA 160 (CC); 2016 (4) BCLR 469 (CC) (29
January 2016).
249 Para 1.
250 Para 3.
251 Para 4.
252 Shoprite Checkers (Pty) Limited v Premier, Gauteng Province and Others (71551/2011)
[2016] ZAGPPHC (11 October 2016).
253 Para 90.
254 This mode of assignment only takes effect upon a proclamation by the President or the
Premier.
255 See Steytler and De Visser (2013) 22.61.
256 2013 JDR 0178 (KZP).
257 Le Sueur para 19.
258 Le Sueur para 19.
259 Le Sueur para 22.
260 Le Sueur para 25.
261 Le Sueur para 39.
262 Freedman (2012) para 231–5.
263 First Certification para 372.
264 S 155(6) of the Constitution also provides that each provincial government must, by
legislative or other measures, provide for the monitoring and support of local government
in the province and promote the development of local government capacity to enable
municipalities to perform their functions and to manage their own affairs.
265 First Certification para 371.
266 First Certification para 371.
267 First Certification para 372.
268 First Certification para 373.
269 First Certification para 375.
270 See Mnquma Local Municipality and Another v Premier of the Eastern Cape and Others
[2012] JOL 28311 (ECB).
271 First Certification para 376.
272 First Certification para 370.
273 Mathenjwa (2017) 143.
274 S 139(1)(b)(i) of the Constitution.
275 S 139(1)(b)(ii) of the Constitution.
276 S 139(1)(b)(iii) of the Constitution.
277 S 139(1)(c) of the Constitution.
278 See Premier of the Western Cape and Others v Overberg District Municipality and Others
(801/201) [2011] ZASCA 23; 2011 (4) SA 441 (SCA); [2011] 3 All SA 385 (SCA) (18 March
2011).
279 S 139(4) of the Constitution.
280 S 15(a) of the Municipal Finance Management Act 56 of 2003.
281 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council and
Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) (14
October 1998).
282 Premier, Western Cape and others v Overberg District Municipality (801/201) [2011] ZASCA
23; 2011 (4) SA 441 (SCA); [2011] 3 All SA 385 (SCA) (18 March 2011).
283 Premier, Western, Cape para 19 et seq.
284 Murray, C and Simeon, R (2000) South Africa’s financial Constitution: Towards better
delivery? SA Public Law 15(2):477–504 at 477.
285 Murray and Simeon (2000) 479.
286 Murray and Simeon (2000) 479. A conditional grant is one in which the money that has
been transferred must be used for a specific purpose and not for any other purpose. An
unconditional grant is one in which the money can be used by the recipient for any
purpose.
287 Murray and Simeon (2000) 480.
288 Kriel, R and Monadjem, M ‘Public finance’ in Woolman and Bishop (2013) 27.8.
289 S 228(2) of the Constitution.
290 Act 53 of 2001.
291 S 229(2) of the Constitution.
292 Act 6 of 2004.
293 Act 12 of 2007.
294 Act 79 of 1984.
295 Ingonyama Trust v eThekwini Municipality (149/2011) [2012] ZASCA 104; 2013 (1) SA 564
(SCA) (1 June 2012).
296 Act 3KZ of 1994.
297 Ingonyama Trust para 11.
298 Ingonyama Trust para 11.
299 Ingonyama Trust para 8.
300 Ingonyama Trust para 8.
301 Ingonyama Trust para 8.
302 Act 101 of 1998.
303 Act 84 of 1998.
304 Ingonyama Trust para 10; Act 84 of 1996.
305 S 214(1)(a)–(c) of the Constitution.
306 Act 97 of 1997.
307 S 9(1) of the IGFRA.
308 S 10(3) of the IGFRA.
309 Ss 2 and 5 of the IGFRA. The Budget Council consists of the Minister of Finance and the
MEC for Finance in each province, while the Budget Forum consists of the Minister of
Finance, the MEC for Finance in each province, five representatives from the national body
representing organised local government and one representative from each of the
provincial bodies representing organised local government.
310 S 10(1) of the IGFRA.
311 The provincial government equitable formula consists of six components: an education
component, a health component, a basic share component, an institutional component, a
poverty component and an economic output component. The local government equitable
formula consists of five components: a basic services component, an institutional support
component, a development component, a revenue-raising capacity correction and a
correction and stabilisation factor (see the Explanatory Memorandum to the Division of
Revenue Bill 2013).
312 S 215(3) of the Constitution.
313 Premier: Limpopo Province para 26.
314 Act 1 of 1999.
315 S 27(2) of the PFMA.
316 S 5 of the PFMA.
317 S 6 of the PFMA.
318 S 17 of the PFMA.
319 S 18 of the PFMA.
320 Act 90 of 1989.
321 The Role and Functions of the South African Reserve Bank, available at
http://www.resbank.co.za/AboutUs/Functions/Pages/default.aspx.
322 Absa Bank Limited and Others v Public Protector and Others (48123/2017; 52883/2017;
46255/2017) [2018] ZAGPPHC 2; [2018] 2 All SA 1 (GP) (16 February 2018) para 22.
323 S 217(2) of the Constitution.
324 Act 5 of 2000.
325 Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo
Province and Others [2008] 2 All SA 145; 2008 (2) SA 481 (CC); 2008 (5) BCLR 508 (CC); 2008
(2) SA 481 (SCA).
326 Act 3 of 2000.
327 Millennium Waste Management para 21.
328 Millennium Waste Management para 16.
329 Millennium Waste Management para 17.
330 Millennium Waste Management para 17.
331 Millennium Waste Management para 17.
332 Millennium Waste Management para 18.
333 Millennium Waste Management para 19.
334 Millennium Waste Management para 21.
 Minister of Social Development and Others v Phoenix Cash & Carry Pmb CC (189/06,
335
244/06) [2007] ZASCA 26; [2007] 3 All SA 115 (SCA); 2007 (9) BCLR 982 (SCA) (27 March
2007).
336 Phoenix Cash & Carry para 1.
337 Phoenix Cash & Carry para 2.
338 Phoenix Cash & Carry para 17.
339 Phoenix Cash & Carry para 2.
340 Phoenix Cash & Carry para 2.
341 Allpay Consolidated Investment Holding (Pty) Ltd and Others v Chief Executive Officer of the
South African Social Security Agency and Others (CCT 48/13) [2013] ZACC 42; 2014 (1) SA
604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013).
342 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of
the South African Social Security Agency 2013 (4) SA 557 (SCA) 29 para 21.
343 Allpay (SCA) para 22.
344 Allpay (SCA) para 23.
345 345S 2 of the PPPFA.
346 The prescribed amount at the time of writing is R50 000 000.
347 See the discussion by Penfold, G and Reyburn, P ‘Public procurement’ in Woolman and
Bishop (2013) 25.16.
348 GN R32, GG 40553, 20 January 2017.
349 South African National Road Agency Ltd v The Toll Collect Consortium and Another
(796/2012) [2013] ZASCA 102; [2013] 4 All SA 393 (SCA); 2013 (6) SA 356 (SCA) (12
September 2013).
Traditional leadership and
customary law

9.1 Introduction

9.2 Traditional leadership in context

9.2.1 Introduction
9.2.2 Traditional leadership during the pre-colonial period
9.2.3 Traditional leadership during the colonial and apartheid eras
9.2.4 Traditional leadership during the transition period
9.2.5 Traditional leadership in the democratic era

9.3 Legislation regulating traditional leadership

9.4 The Traditional Leadership and Governance Framework Act

9.4.1 Introduction
9.4.2 Recognition of traditional leaders
9.4.3 Functions of traditional leaders
9.4.4 Recognition of traditional communities
9.4.5 Establishment of traditional councils
9.4.6 Traditional communities, traditional councils and the homelands
9.4.7 The functions of traditional councils

9.5 The National House of Traditional Leaders

9.5.1 Introduction
9.5.2 The establishment and composition of the national House
 9.5.3 Qualification and disqualification of members
9.5.4 The term of office and dissolution of the national House
9.5.5 Chairperson and deputy-chairperson of the national House
9.5.6 Meetings and decisions of the national House
9.5.7 Powers and duties of the national House
9.5.8 Conclusion

Summary

9.1 Introduction
Like other constitutional democracies, the Constitution of the Republic
of South Africa, 1996 divides public power among the legislative,
executive and judicial branches of government, each of which consists
of a variety of institutions and structures. Apart from the institutions
and structures that make up these three branches, however, the
Constitution also confers public power on another set of institutions
and structures, namely traditional leadership.
These traditional institutions and structures are often overlooked in
conventional discussions of the Constitution. This is a mistake. Not only
does South Africa have a long history of traditional institutions and
structures, but these institutions were also ‘entrenched (albeit in
distorted ways) over many decades of segregationist and apartheid
rule’.1 Millions of South Africans are thus subject to the rule of
traditional leadership, especially in rural areas.
The constitutional framework governing traditional leadership is set
out in Chapter 12 of the Constitution and consists of two brief sections,
namely section 211 and section 212. Section 211 provides that:
(1) The institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs, which includes
amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically deals with
customary law.

And section 212 provides that:

 National legislation may provide for a role for traditional leadership as an
(1) institution at local level on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of
traditional leaders, customary law and the customs of communities
observing a system of customary law -
(a) national or provincial legislation may provide for the establishment of
houses of traditional leaders; and
(b) national legislation may establish a council of traditional leaders.

A plain text reading of section 211(1) indicates that the institution,

status and role of traditional leadership, established in terms of the
principles and rules of customary law, are formally recognised by the
Constitution, not only as a part of the state, but also as a part of the
system of governance that applies in South Africa. This recognition,
however, is subject to two key normative constraints.
• First, the particular form that the institution of traditional leadership
takes, as well as the nature of its status and role, must be determined
by applicable legislation and the principles and rules of customary
law.
• Second, these statutory and customary law principles and rules are
subject to the other provisions of the Constitution, including those
provisions relating to multi-party democracy, the separation of
powers and the rights protected in the Bill of Rights.

The manner in which the institution, status and role of traditional

leadership can be recognised, established, structured, defined and
empowered, therefore, is subject to significant constraints and these
constraints give rise to complex and difficult questions. Among these
are the following: what is meant by the concept of ‘traditional
leadership’, the ‘institution, status, and role’ of traditional leadership,
and ‘customary law’; how is traditional leadership structured; how are
traditional leaders appointed; what powers do traditional leaders enjoy;
and how does traditional leadership relate to the separation of powers,
the national, provincial and local spheres of government and the rights
protected in the Bill of Rights?
The purpose of this chapter is to consider some (although not all) of
these issues. As a part of this exploration, we will focus, not only on
sections 211 and 212 of the Constitution, but also on those statutes that
have been passed by Parliament to give effect to these constitutional
provisions. This statutory framework includes the National House of
Traditional Leaders Act (NHTLA);2 the Traditional Leadership and
Governance Framework Act (Framework Act)3 and, most recently, the
Traditional and Khoi-San Leadership Act (TKLA). 4 The TKLA will repeal
and replace both the NHTLA and the Framework Act when it is brought
into operation.

Indigenous peoples, first peoples and

traditional peoples
Like many other countries across the planet, South
Africa is a multicultural and multi-ethnic society. One of
the consequences of its multicultural and multi-ethnic
nature is that many South Africans continue to live in
communities that observe traditional ways of living. In
international nomenclature, some of these
communities are referred to as ‘indigenous peoples’ or
‘first peoples’, while others are referred to as
‘traditional peoples’. It is generally accepted that the
indigenous or first peoples of South Africa are the
Khoi-San people and that the traditional peoples are
the Bantu peoples.
The Khoi-San people are descended from nomadic
Khoikhoi pastoralists and San hunter-gatherers who
inhabited South Africa and southern Namibia for
thousands of years before Jan van Riebeeck and the
other Dutch colonisers arrived at the Cape in 1652.
The Dutch and later British colonisers referred to the
Khoi-San people by derogatory terms such as
‘Bushmen’ and ‘Hottentots’. The Bantu peoples of
South Africa are a subset of the hundreds of ethnic
groups in sub-Saharan Africa (residing right up to
Central Africa and the Great Lakes region) who speak
between 440 and 680 Bantu languages. The word
‘bantu’ literally means ‘people’.
The distinction drawn between indigenous or first
peoples, on the one hand, and traditional peoples, on
the other hand, has not always been strictly followed.
In Alexkor Ltd v Richtersveld Community,5 for example,
the Constitutional Court referred to the customary
normative arrangements of the Richtersveld community
correctly as ‘indigenous law’. This is because the
Richtersveld community formed a part of the Nama
people who are the single largest surviving clan of the
traditional nomadic herders referred to as the
Khoikhoi. They once occupied all of the south-western
section of Africa.
In Bhe and Others v Khayalitsha Magistrate and
Others,6 however, the Constitutional Court referred to
the customary normative arrangements of the
applicants, not as indigenous or traditional law, but
rather as ‘African customary law’ and, more specifically,
as ‘living customary law’, which it contrasted with the
‘official customary law’ that was enacted by the state
and/or ossified in academic texts and civil court
judgments.7
While the Constitutional Court has applied the
international nomenclature somewhat erratically,
Parliament has recently adopted it enthusiastically. As
its short title indicates, the Traditional and Khoi-San
Leadership Act (TKLA)8 which was passed in 2019 and
is intended to repeal and replace both the Traditional
Leadership and Governance Framework Act (the
Framework Act),9 and the National House of Traditional
Leaders Act (NHTLA),10 explicitly distinguishes between
traditional peoples and Khoi-San peoples. At the same
time, however, the TKLA also appears to super-impose
the colonially imagined forms of regulation for
 traditional peoples onto the governance arrangements
for Khoi-San peoples.

9.2 Traditional leadership in context

9.2.1 Introduction
Traditional leadership is defined in the Framework Act as the
customary institutions or structures or the customary systems or
procedures of governance practised by traditional communities,11 and
traditional communities are defined as those that are subject to a
system of traditional leadership and observe a system of customary
law.12
Customary law, or more precisely ‘living customary law’, consists of
the normative arrangements that regulate the day-to-day life of the
members of a traditional community and that have been willingly
adapted and developed from the (mostly unwritten) customs, practices
and traditions of their predecessors, as well as outside influences. It is a
dynamic rather than a static concept.13
In order to properly understand the institution, status and role of
traditional leadership in a democratic South Africa, however, it is
important to briefly locate traditional leadership in its historical
context, starting with the pre-colonial period (pre-1652), going on to the
colonial and apartheid eras (1652–1990) and ending with the
transitional period (1990–1996).

9.2.2 Traditional leadership during the pre-colonial period

In his dissenting Constitutional Court judgment in Bapedi Marota
Mamone v Commission on Traditional Leadership Disputes and
Claims,14 Jafta J pointed out that in pre-colonial times African
communities were governed by a hierarchy of traditional leaders and
that at the head of this hierarchy was the Inkosi, in Nguni-speaking
communities, the Morena, in Sotho-speaking communities, or the
Kgosi, in Tswana-speaking communities.15 In colonial parlance, these
hereditary traditional leaders were referred to as chiefs and they were
classified either as kings or paramount chiefs.16
Apart from the office of the chief, there were two other traditional
offices in the leadership hierarchy, namely the wardhead and the
familyhead. The wardhead was normally a senior member of a leading
family in the community and controlled a geographic area called a
ward. He reported directly to the chief and was a member of the ruling
council. Below the wardheads, were the familyheads. Familyheads did
not control a geographic area, but rather a household and were
appointed on the basis of patriarchal descent.17
Although the chief was the leading and most powerful member of
an African community, he did not exercise absolute power. Instead, his
powers were limited by the need to consult the ruling council and to
govern in the best interests of his community.18 In addition, the chief’s
powers were limited by the political threats of usurpation and
secession. As Himonga and Nhlapo point out, the position of a chief
was frequently threatened by political rivals from within the community
and he had to rule fairly to retain the support of his people. If a chief
failed to do so, members of his community would either rise up in revolt
or – given that land was abundant – simply leave the community and
settle elsewhere.19

9.2.3 Traditional leadership during the colonial and

apartheid eras
The checks and balances on the powers of chiefs were severely
undermined following the colonisation of South Africa, especially
during British rule. Initially, they regarded chiefs as a key obstacle to the
colonising mission and introduced a system aimed at abolishing
traditional leadership and replacing it with partially elected councils.
This approach, however, was confined largely to the Western and
Eastern Cape. In the other parts of the country, starting with Natal, a
different approach was adopted. In terms of this approach, traditional
leaders were allowed to retain their customary law powers and
especially their powers to allocate land, resolve disputes and raise taxes,
but subject to the overriding authority of the various colonial
governments. Chiefs, therefore, remained the primary source of
governance in their communities.20
As part of their overriding authority, however, the various colonial
governments and later the Union government reserved for themselves
the power to regulate the leadership, governance and customary laws of
African communities. This process culminated in the enactment of
Native Administration Act in 1927.21 Apart from appointing the
Governor-General in Council as the Supreme Chief of all Africans, this
Act also conferred on him, in his capacity as Supreme Chief, the power
to create and divide African communities,22 appoint any person as a
chief, wardhead or familyhead23 and to move an entire African
community from one place to another.24
The key features of the Native Administration Act were summarised
by Ngcobo CJ in his judgment in Tongoane v National Minister for
Agriculture and Land Affairs25 as follows:
The Black Administration Act made the Governor-General (later the State
President) the ‘supreme chief of all Natives in the Provinces of Natal, Transvaal
and Orange Free State’ (later extended to the Cape Province), and vested in
him the legislative, executive and judicial authority over African people.
Specifically, it gave him the power to govern African people by proclamation, to
establish tribes, and to ‘order the removal of any tribe or portion thereof or any
Native from any place to any other place’. It dealt with, among other matters,
the organisation and control of African people, land administration and
tenure, and the establishment of separate courts for African people which had
the authority to apply indigenous law. It proclaimed the ‘Code of Zulu Law’ to
be the ‘Law for Blacks in Natal’.26

Using these powers, the Union government dismissed those traditional

leaders who were nonpliant and appointed those who were. Given that
traditional leaders now derived their authority from the government, it
was no longer necessary for them to retain the support of their
communities by acting in their best interests. Community members
who were opposed to a chief’s rule were also prohibited from leaving
and settling elsewhere. The threat of secession was thus eliminated.27
An important consequence of this system of indirect rule was that
traditional leaders, or at least some of them, became increasingly
autocratic and were more willing to implement colonial and later
apartheid laws and policies.28
This process – which resulted in the de-legitimisation of traditional
leaders – was described by Jafta J in his dissenting judgment in Bapedi
Marota Mamone as follows:
Those [traditional leaders] who opposed the government, no matter what
traditional legitimacy they might have enjoyed could be ousted from office or
passed over in matters of succession. Hence, although the Department of
Native Affairs was generally prepared to make appointments from the ruling
families, where necessary it could depart from the established order of
succession by choosing uncles or younger brothers or by promoting
subordinate headmen. The outcome was a compliant cadre of ‘traditional’
leaders who provided the personnel needed to realise an increasingly
unpopular state policy.29

As a part of its policy of separate development, the apartheid

government envisaged the creation of separate and, ultimately,
independent homelands for each black ethnic group30 on land that had
been reserved for African communities in terms of the Native Land Acts
of 1913 and 1936.31 As a first step along this path, Parliament passed the
Bantu Authorities Act in 1951.32 As Ngcobo CJ pointed out in Tongoane,
this Act conferred the power on the State President to established tribal
authorities in the reserves as the basic units of administration:
The Black Authorities Act gave the State President the authority to establish
‘with due regard to native law and custom’ tribal authorities for African ‘tribes’
as the basic unit of administration … These tribal authorities had the power to
‘advise and assist the Government and any territorial or regional authority … in
connection with matters relating to … [among other things] the development
and improvement of any land within [their areas of jurisdiction]’. And they
were required to exercise their powers and perform their functions ‘with due
regard to the rules, if any, applicable in the case of similar bodies in terms of
the native laws or customs of the respective tribes or communities in respect of
which [they have been] established’. … Under apartheid, these steps were a
necessary prelude to the assignment of African people to ethnically-based
homelands. This commenced with the creation of ‘legislative assemblies’ which
would mature into ‘self-governing territories’ and ultimately into ‘independent
states’. According to this plan, there would be no African people in South Africa,
as all would assume citizenship of one or other of the newly created
homelands, where they could enjoy social, economic and political rights.33
The Bantu Authorities Act was followed by the Promotion of Bantu Self-
Governing Act in 1959.34 This Act established eight (later 10)
homelands,35 each of which was allocated certain legislative and
executive powers and declared to be self-governing. It was
supplemented by the Bantu Homelands Constitution Act in 197136
which set out the process in terms of which these self-governing
homelands could become independent and thus achieve the ultimate
goal of apartheid, namely a South Africa without any black citizens.
Four self-governing homelands were eventually granted independence,
namely the Transkei, Bophuthatswana, Venda and Ciskei (the ‘TBVC’
states).37
Traditional leaders played a prominent role in the legislative and
executive structures established in each self-governing homeland and
independent state. Apart from the fact that at least half of the seats in
the homeland and independent states’ legislative assemblies were
reserved for paramount chiefs, chiefs and other traditional leaders, the
highest offices in the executive were dominated by traditional leaders.
The first presidents of the Transkei (Kaiser Dalingowe Matanzima),
Bophuthatswana (Lucas Mangope), Venda (Patrick Mphepu) and Ciskei
(Lennox Sebe), for example, were all chiefs.38

9.2.4 Traditional leadership during the transition period

When the process of negotiating a new constitutional dispensation for
South Africa began in the early 1990s, traditional leaders, represented
primarily by the Congress of Traditional Leaders of South Africa
(CONTRALESA), argued that they should be allowed to retain all of the
powers and functions conferred on them by customary and statute law.
Despite opposition from women’s groups, who argued that the
hereditary and patriarchal nature of traditional leadership was
inconsistent with democracy and the right to equality, the negotiators at
the Multiparty Negotiating Forum accepted the demands made by
CONTRALESA.39
The interim Constitution thus provided that traditional authorities
would not only continue to function as such, but would also ‘continue
to exercise and perform the powers and functions vested in it in
accordance with the applicable laws and customs, subject to any
amendment or repeal of such laws and customs by a competent
authority’.40 In addition, the interim Constitution also designated
traditional leaders as ex officio members of the municipal structures
being created in their areas41 and imposed an obligation on the national
and provincial governments to establish houses of traditional leaders.42
Even more significantly, Constitutional Principle XIII stated that
‘[t]he institution, status and role of traditional leadership, according to
indigenous law, [had to] be recognised and protected in the [final]
Constitution’. Although this principle was included in section 211(1) of
the Constitution almost word for word, it was made ‘subject to the
Constitution’, which includes the right to equality, as well as the power
of the national Parliament to amend or repeal the applicable legislation
and customs that vested power in and conferred function on traditional
leaders. The peremptory obligation to establish national and provincial
houses of traditional leaders was also translated into a discretionary
one.43
In the Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, 1996,44
the objectors argued that section 211 of the Constitution did not comply
with Constitutional Principles XIII because it did not protect the
customary law and statutory powers of traditional leadership by
entrenching an active role for traditional leadership in the government
of the country.45 The Constitutional Court, however, rejected this
argument on the ground that section 211 guaranteed the continued
existence of traditional leadership and the survival of an evolving
customary law. The Constitutional Assembly could not be faulted for
leaving the complicated and difficult task of determining exactly how
traditional leadership should function in a democracy to ‘future social
evolution, legislative deliberation and judicial interpretation’.46

Negotiating traditional leadership during the

transition
Although traditional leaders were not invited to
participate in the Convention for a Democratic South
Africa (CODESA) as a separate constituency, most of
the homeland government delegations included
traditional leaders. Despite this fact, Nelson Mandela
issued a statement shortly before CODESA began on
20 December 1991 calling for traditional leaders to be
involved as observers. In his statement, Mandela said
the following:
In keeping with the spirit of unity the ANC considers it important
that traditional leaders be involved in the process. It is our view,
which we have put to Codesa, that the highest-ranking traditional
leaders from all parts of South Africa attend the proceedings on
20 and 21 December as observers. Just as such leaders were
present at the formation of the ANC, they should be present at the
watershed events that herald the dawn of a new, democratic
South Africa.

Chief Albert Luthuli was probably the most prominent

traditional leader who played a leadership role in the
ANC. Chief Luthuli – who was the first South African to
be awarded the Nobel Peace Prize – was appointed as
the chief of his traditional community in Groutville in
KwaZulu-Natal in 1935. During the years that followed
his appointment, he became increasingly involved in
national politics and joined the ANC. However, his
membership of the ANC and particularly his decision
to support the 1952 Defiance Campaign angered the
apartheid government and he was dismissed from his
office as chief in November 1952. Following his
dismissal, Chief Luthuli was elected as President of the
ANC and he remained in that position until his death in
1967. He was awarded the Nobel Peace Prize in
1960.47
Traditional leaders, however, did not want to
participate in CODESA as mere observers. Instead,
they wanted an equal place at the negotiating table.
 Following threats by traditional leaders to boycott the
first democratic elections, this demand was eventually
accepted when delegations of traditional leaders from
three of the four provinces were formally admitted to
the Multi-Party Negotiating Process in 1993.48 During
these negotiations, traditional leaders made a number
of demands. Among the most significant of these was
to preserve all of the powers and functions of
traditional leaders and to insulate the system of
customary law from constitutional review, especially on
the grounds that it infringed the right to equality.
Although they succeeded with the former, they failed
with the latter. This victory was reflected in the
provisions, not only of the interim Constitution itself,
but also Constitutional Principle XIII.

9.2.5 Traditional leadership in the democratic era

Since the Constitution came into operation, the Constitutional Court
has considered section 211 on several occasions. Some of these cases
have related to the institution of traditional leadership and others have
not. The first case to come before the Constitutional Court that related
to the institution of traditional leadership was Shilubana v Nwamitwa.49
In this case, however, the Court was not required to define what it
understood by ‘the institution and role of traditional leadership’ or how
it should function in a democracy. Instead, it focused on the more
technical issue of how to determine the customary law rules governing
succession to the office of a traditional leader.
The facts of this case were as follows. The applicant’s father, Fofoza
Nwamitwa, was the Hosi (chief ) of the Valoyi Traditional Community in
Limpopo. After Hosi Fofoza died in 1968, however, the applicant was
not appointed as the Hosi, even though she was his eldest child.
Instead, her father’s younger brother, Richard Nwamitwa, was
appointed Hosi. The applicant was not appointed as the Hosi because
the customary law rules of the Valoyi provided that succession to the
office of Hosi was governed by the principle of male primogeniture. As a
woman, therefore, she was ineligible.
Following the transition to democracy, Hosi Richard together with
the other members of the royal family and the royal council decided
that the applicant should be appointed as the heir to the Valoyi
chieftainship on the grounds that the succession to the chieftainship
should comply with the constitutional right to equality. Although Hosi
Richard later withdrew his support for the applicant’s chieftainship, the
royal family and tribal authority continued to support her claim and
after Hosi Richard died they confirmed that she would succeed to the
chieftainship and become Hosi.
The decision that the applicant should become Hosi was confirmed
by the Limpopo Provincial Executive Committee and an inauguration
ceremony was scheduled. Before this ceremony could take place,
however, the respondent, who was Hosi Richard’s eldest son, applied to
the Pretoria High Court for an order declaring that, as the eldest son of
the previous Hosi, he (and not the applicant) had a right to succeed to
the chieftainship of the Valoyi Traditional Community in terms of its
customary law rules. The High Court granted the order and so did the
Supreme Court of Appeal. The applicant then appealed to the
Constitutional Court.

Negotiating the constitutional relationship

between women’s rights and customary law
During the negotiations that preceded the adoption of
both the interim Constitution and the 1996
Constitution, traditional leaders locked horns with
women’s rights activists. While traditional leaders
wanted customary law to be insulated from judicial
review, especially on the grounds that it infringed the
right to equality, women’s rights activists wanted
customary law to be firmly subject to the scrutiny of
the Bill of Rights. They saw the Bill of Rights as the
 only hope for the liberation of rural women from the
shackles of patriarchy, which they saw customary law
as typically embodying.50
Although traditional leaders based their argument
on the grounds that in a democratic South Africa living
customary law should no longer be subject to western
values, which they argued the Constitution embodied,
their argument was not accepted by the negotiating
parties. Section 39(2) of the Constitution thus
expressly provides that ‘when developing the common
law, or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill
of Rights’ and section 211(3) expressly provides that
‘[t]he courts must apply customary law when that law
is applicable, subject to the Constitution …’.
Despite these provisions, the debate about the
relationship between living customary law and the
Constitution has not gone away. Rather, it has taken a
different form. Today, similar arguments are repeated in
the legislative (and sometimes the judicial) arena
when statutes regulating various functions of traditional
leaders ‘according to customary law’ are introduced,
debated and passed in South Africa’s various
legislatures.

The key question the Constitutional Court had to answer was whether
the respondent was correct: as the eldest son of the previous Hosi, did
the respondent have a right to succeed to the chieftainship of the Valoyi
Traditional Community in terms of its customary law rules. In order to
answer this question, the Court had to determine what the customary
law rules governing succession to Hosi were. Before engaging in this
task, however, it was important to set out the proper approach that must
be followed when determining customary law rules.51
 In so far as the proper approach was concerned, the Constitutional
Court began by pointing out that the status of customary law is
entrenched in terms of section 211 of the Constitution. It follows,
therefore, that customary law is, not only an integral part of the legal
system, but is also an independent source of legal norms:
The import of [section 211], in the words of Langa DCJ in Bhe, is that customary
law ‘is protected by and subject to the Constitution in its own right.’ Customary
law, like any other law, must accord with the Constitution. Like any other law,
customary law has a status that requires respect. As this Court held in Alexkor v
Richtersveld Community, customary law must be recognised as ‘an integral part
of our law’ and ‘an independent source of norms within the legal system.’ It is a
body of law by which millions of South Africans regulate their lives and must be
treated accordingly.52

Given the important role that customary law plays in the legal system,
the Constitutional Court held, several factors must be taken into
account when it comes to determining and developing the content of a
customary law rule.
• First, both the historical and current practices of a community must
be taken into account.53
• Second, a community has the right to develop and change its own
laws and this right must be respected.54
• Third, the development of customary law must be balanced against
legal certainty, vested rights, and constitutional rights, especially of
vulnerable groups.55

In addition, the Constitutional Court held further, whenever a court is

engaged in a customary law matter, it must remember its obligation in
terms of section 39(2) of the Constitution ‘to promote the spirit, purport
and objects of the Bill of Rights’.56
The Constitutional Court summed up these principles as follows:
where there is a dispute over the legal position under customary law, a court
must consider both the traditions and the present practice of the community. If
development happens within the community, the court must strive to
recognise and give effect to that development, to the extent consistent with
adequately upholding the protection of rights. In addition, the imperative of
section 39(2) must be acted on when necessary, and deference should be paid
 to the development by a customary community of its own laws and customs
where this is possible, consistent with the continuing effective operation of the
law. With that, I turn to the enquiry into the legal position in the present case.57

After summing up these principles, the Constitutional Court turned to

apply them to the facts of the case. It found that the royal family had the
authority to develop the customary law rules of the Valoyi Traditional
Community to outlaw gender discrimination in the succession of the
Hosi and to restore the chieftainship to the applicant to remedy the
gender discrimination she had suffered prior to the new constitutional
order. It, therefore, rejected the respondent’s argument that as the
eldest son of the previous Hosi, he had the right to succeed to the
chieftainship and upheld the appeal.

A new direction in the Constitutional Court?

In its judgment in Shilubane, the Constitutional Court
suggested that the approach it adopted towards
determining living customary law rules was simply a
logical continuation of the approach it adopted in its
earlier judgments in Alexkor Ltd v Richtersveld
Community and Bhe v Khayelitsha Magistrate.58 This
suggestion is not necessarily correct. It may be argued
that the approach adopted in Alexkor and Bhe are
inconsistent with the emphasis the Court placed in
Shilubane on the fact that traditional communities are
entitled to transform their own customary law rules and
that these transformed rules must be recognised and
applied by the courts.
After declaring the customary law rules governing
intestate succession to be unconstitutional and invalid
on the ground that they precluded women from
inheriting directly, a majority of the Constitutional Court
in Bhe simply replaced the customary law rule with the
 provisions of the Intestate Succession Act 81 of 1987.
Instead of trusting the community to develop their own
non-discriminatory rules of intestate succession and
providing them with an opportunity to do so, therefore,
the majority of the Court simply imposed civil law rules
onto a customary law system. The lack of trust shown
in Bhe, however, is exposed by the fact that the royal
family in Shilubana had in fact transformed their
system of customary law to eliminate unfair
discrimination based on gender, which the Court was
willing to accept.
Perhaps the distinction between the Constitutional
Court’s final order in Bhe (replacing customary law with
civil law) and Shilubana (recognising the development
of customary law made by the community itself) can
be explained by the fact that, unlike in Bhe, in
Shilubana the Court was presented with a written
resolution by the royal family of a discreet community,
which was expressed explicitly in terms of developing
the community’s customary law in line with the Bill of
Rights.

While the Shilubana judgment clarified the manner in which a court

must determine and develop the content of customary law rules, it did
not clarify what is meant by ‘the institution, status and role of
traditional leadership’ or how traditional leadership should function in
a democracy. In Pilane v Pilane,59 the Constitutional Court took this
process a small step further when it confirmed that traditional leaders
who have been formally recognised in terms of statutory framework
governing traditional leadership perform public functions and,
therefore, are organs of state. The Court also relied very heavily on this
statutory framework in arriving at its decision.
In this case, the applicants were residents of the Motlhabe village,
which was one of 32 villages that comprised the Bakgatla-Ba-Kgafela
Traditional Community located in the Pilanesberg area of the North-
West province. The respondent was the Kgosi of the Bakgatla-Ba-Kgafela
Traditional Community. Together with the Traditional Council, the
Kgosi applied to the North-West High Court for an order interdicting the
applicants from claiming to be an independent tribal authority and
from calling a Kgotha Kgothe, as a tribal authority, to discuss the
conduct of the Kgosi and the possibility of the village seceding from the
Bakgatla-Ba-Kgafela.60
The High Court granted the interdicts and the appellants then
appealed directly to the Constitutional Court. A majority of the
Constitutional Court upheld the appeal and set aside the interdicts.
In arriving at their decision, the majority of the Constitutional Court
pointed out that the requirements for an interdict are (i) a clear right;
(ii) an injury actually committed or reasonably apprehended; and (iii)
the absence of an alternative remedy.61 In so far as the first requirement
was concerned, the respondents based their claim, or at least appeared
to base their claim, for an interdict on two rights:
First, the respondents argued that the Bakgatla-Ba-Kgafela
Traditional Community had been formally recognised as a traditional
community in terms of the Framework Act62 and the North West
Traditional Leadership and Governance Act.63 An important
consequence of being formally recognised as a traditional community
was that they had an exclusive right to refer to themselves as traditional
leaders. When the applicant referred to themselves as an independent
tribal authority, therefore, they were interfering with this exclusive
right.64
The majority of the Constitutional Court rejected this argument.
When the respondents were formally recognised as the traditional
leadership of the Bakgatla-Ba-Kgafela Traditional Community in terms
of the national and provincial Acts, the Court held, they were entitled to
perform certain public functions and fell into the definition of an organ
of state. The mere fact that they had been formally recognised, however,
did not prohibit other traditional leaders, who had not been formally
recognised, from referring to themselves as such or from operating as
traditional leaders.65
 This finding is particularly interesting. It leaves open the possibility
that legislation may not be the only source regulating the manner in
which customary leadership can operate and raises the question
whether communities – relying on their own custom – could fashion
different traditional leadership arrangements over and above what is
recognised in legislation.
Second, the respondents argued that a Kgotha Kgothe may be called
only by the Kgosi or his authorised appointee. The applicants, however,
disagreed. They argued that it may be convened either at a village or
traditional community level and either by the appointed Kgosana
(headman) or by the community itself where the Kgosana fails to do
so.66 Like the first argument, the majority of the Constitutional Court
also rejected this argument. The majority held that the respondents had
raised this dispute for the first time in their replying affidavit in the High
Court and not in their founding affidavit. It was not necessary,
therefore, for the Court to resolve it. The respondent had to stand or fall
by their founding papers.67
It is unfortunate that the Constitutional Court rejected this
argument on a technical basis. This is because it gives rise to complex
and difficult questions. One of these is whether the statutory framework
governing traditional leadership does make provision for the members
of a traditional community to evaluate and criticise their leaders and, if
necessary, to demand the removal of specific leaders. What is clear,
however, is that in order to understand the extent to which traditional
leadership is constitutionally recognised by sections 211 and 212 of the
Constitution, it is necessary to take the relevant legislation into account.
This legislation is discussed in the next section.

Traditional leadership and accountability

As we have seen, the system of indirect rule adopted,
first, by the colonial authorities and, subsequently, by
the apartheid regime attempted to co-opt traditional
leaders. While some traditional leaders, such as Chief
Albert Luthuli, resisted this scheme and resigned from
their positions,68 other traditional leaders succumbed
and agreed to work with the colonial and apartheid
governments. Where traditional leaders agreed to work
with the colonial and apartheid government, this
decision inevitably had a negative impact on their
legitimacy as leaders. Once they began implementing
colonial and apartheid laws and policies, a chasm
developed between traditional leaders and their
people. This is because traditional leaders increasingly
relied on the authority of the state to maintain their
positions and less and less on the consent of their
people. The pre-colonial concept of rule by consent,
therefore, was replaced with the concept of rule by
force.
Although the constitutional and statutory
framework governing traditional leadership today is
very different from what it was in the colonial and
apartheid eras, from a constitutional law perspective,
questions still remain about the accountability of
traditional leaders to their communities and especially
the extent to which a traditional leader may be
removed from office by his or her community. Given
that the office of a traditional leader must be
determined, at least partly, by living customary law, it
is interesting to note that the principles and rules of
customary law have always held that traditional
leaders are accountable to their communities. As
Govan Mbeki has pointed out, evidence of these
customary law principles and rules may be found in
the phrase Inkosi iyinkosi ngabantu. Kgosi ke kgosi ka
batho (a chief is a chief by, through, and because of
the people), which is a permutation of the phrase
Umuntu ungumuntu ngabantu. Motho ke motho ka
batho (a person is a person by, through, and because
 of (other) people). In terms of these principles,
traditional leaders are made by those whom they
serve.69
If Mbeki is correct, then living customary law
potentially does provide for mechanisms through which
traditional leaders can be removed by their
communities in appropriate circumstances.

9.3 Legislation regulating traditional leadership

Section 212 of the Constitution envisages the adoption of two distinct
types of legislation that recognises traditional leadership. The first type
is referred to in section 212(1) and the second type in section 212(2).
Section 212(1) states that national legislation may provide for a role
for traditional leadership as an institution ‘at local level on matters
affecting local communities’. The national legislation referred to in this
section is the Framework Act.70 The Framework Act, however, will be
repealed and replaced by the TKLA71 when it is brought into operation.
Section 212(2) states that to deal with matters relating to traditional
leadership, the role of traditional leaders, customary law and the
customs of communities observing a system of customary law, national
and provincial legislation may establish houses of traditional leaders.
The national legislation referred to in this section is the NHTLA.72 Like
the Framework Act, the NHTLA will be repealed and replaced by the
TKLA when it is brought into operation.

9.4 The Traditional Leadership and Governance

Framework Act

9.4.1 Introduction
As noted above, the national legislation referred to in section 212(1) of
the Constitution is the Framework Act. The preamble to this Act states
that it seeks:
• to set out a national framework and norms and standards that will
define the place and role of traditional leadership within the new
system of democratic governance;
• to transform the institution in line with constitutional imperatives;
and
• to restore the integrity and legitimacy of the institution of traditional
leadership in line with customary law and practices.

As these aims indicate, the concept of traditional leadership lies at the

heart of the Framework Act. As noted above, this concept is defined in
the Act as ‘the customary institutions or structures, or customary
systems or procedures of governance, recognised, utilised or practised
by traditional communities’73 and traditional communities are defined
as those ‘recognised as such in terms of section 2’ of the Framework
Act.74 Before turning to discuss the manner in which traditional
communities are recognised in terms of section 2, however, it will be
helpful to briefly discuss the manner in which the Act defines the
concept of a traditional leader and the different categories of traditional
leader that it establishes.
Like the Framework Act, the concept of traditional leadership lies at
the heart of the TKLA, although it has been extended to include Khoi-
San leadership. The Khoi-San are defined in the Act as those persons
who live in accordance with the customs and customary law of the
Cape-Khoi, Griqua, Koranna, Nama or San people, or any subgroup
thereof, and consequently, are members of a particular Khoi-San
community.75 The concept of traditional leadership is defined in the
TKLA in almost exactly the same way as it is defined in the Framework
Act and traditional and Khoi-San communities are defined as those
‘recognised as such in terms of section 3 and section 5 of the Act
respectively’.76

9.4.2 Recognition of traditional leaders

Apart from the concept of ‘traditional leadership’, the concept of a
‘traditional leader’ is also defined in the Framework Act. The Act
provides in this respect that a traditional leader is ‘any person who, in
terms of the customary law of the traditional community concerned,
holds a traditional leadership position, and is recognised in terms of
this Act’.77 As this definition indicates, not only must a traditional
leadership position be established in terms of customary law, but it
must also be recognised by the Act.
The Framework Act recognises four different categories of
traditional leadership positions and divides them into a hierarchy of
more and less powerful offices, namely kingship and queenship;
principal traditional leadership; senior traditional leadership; and
headmanship.78
At the top of the hierarchy are kings and queens. A king or queen is
defined as a traditional leader under whose authority, or within whose
area of jurisdiction, numerous principal traditional leaders exercise
authority in terms of customary law; and who is formally recognised as
a king or queen in terms of the Act.79 A person who qualifies in terms of
customary law to be appointed as a king or queen must be identified by
the relevant royal family and formally recognised by the President on
the recommendation of the Minister responsible for traditional
matters.80
Below kings and queens are principal traditional leaders. A
principal traditional leader is defined as a traditional leader under
whose authority, or within whose area of jurisdiction, numerous senior
traditional leaders exercise authority in terms of customary law; and
who is formally recognised as a principal traditional leader in terms of
the Act.81 A person who qualifies in terms of customary law to be
appointed as a principal traditional leader must be identified by the
relevant royal family and formally recognised by the Premier of the
relevant province.82
Next come senior traditional leaders. A senior traditional leader is
defined as a traditional leader of a specific community who exercises
authority over a number of headmen or headwomen in terms of
customary law, or within whose area of jurisdiction a number of
headmen or headwomen exercise authority.83 A person who qualifies in
terms of customary law to be appointed as a senior traditional leader
must be identified by the relevant royal family and formally recognised
by the Premier of the relevant province.84
At the bottom of the hierarchy are headmen and headwomen. A
headman or headwoman is a traditional leader who is under the
authority of, or exercises authority within the jurisdictional area of, a
senior traditional leader in terms of customary law; and who is formally
recognised as a headman or headwoman in terms of the Act.85 The
process for appointing and formally recognising headmen and
headwomen is the same as for senior traditional leaders.86
Like the Framework Act, the TKLA also recognises the same four
categories of traditional leadership and divides them into the same
hierarchy of more and less powerful office, namely kingship and
queenship; principal traditional leadership; senior traditional
leadership; and headmanship.87 In addition, it also recognises two
categories of Khoi-San leadership and divides them into a hierarchy,
namely senior Khoi-San leadership and branch head. 88
Kings, queens, principal traditional leaders and headmen and
headwomen are defined in the TKLA simply as those persons who are
recognised as such in terms of the recognition process set out in section
8 of the Act.89 With one important exception, this recognition process is
essentially the same as the one set out in the Framework Act.
The exception applies to the recognition of senior traditional leaders
and headmen and headwomen. In so far as these offices are concerned,
the TKLA draws a distinction between those cases in which hereditary
succession applies and those in which it does not. Where hereditary
succession applies, the royal family must, in terms of customary law,
identify the person who qualifies to fill the office. Where hereditary
succession does not apply, the community must, in terms of customary
law, identify or elect the person who will fill the office.90
Khoi-San leaders and branch heads are also defined in the TKLA
simply as those persons who are recognised as such in terms of the
recognition process set out in section 10 of the Act.91 Once again, this
recognition process distinguishes between those cases in which
hereditary succession applies and those in which it does not. Where
hereditary succession applies, the royal family must, in terms of
customary law, identify the person who qualifies to fill the office of
senior Khoi-San leader. 92 Where hereditary succession does not apply,
the relevant Khoi-San council must, in terms of customary law, elect a
person to fill the office or senior Khoi-San leader or branch head. 93 After
a senior Khoi-San leader or branch head has been identified or elected
by the royal family or council, he or she must be formally recognised by
the Premier of the relevant province.94
An important consequence of the hierarchies created by the
Framework Act and the TKLA is that they establish multiple layers of
leadership and centralise power in those leaders who are at the top of
the hierarchy (kings, queens and principal traditional leaders), rather
than those who are at the bottom (headmen, headwomen and village
councils). These features of the system of traditional leadership create
an unfortunate distance between traditional community members and
their leaders, which will inevitably make them less familiar with the
issues affecting their communities and less accountable to their people.

Do all traditional communities have ‘chiefs’?

Both the Framework Act and the TKLA establish a
hierarchy of more powerful and less powerful traditional
leadership positions. In terms of this hierarchy,
headmen and headwomen fall ‘under the authority of’
or exercise authority ‘within the area of jurisdiction’ of
senior traditional leaders; senior traditional leaders fall
under the authority of or exercise authority within the
area of jurisdiction of principle traditional leaders; and
principle traditional leaders do the same with respect
to kings or queens.
This hierarchical approach has been criticised on
the ground that it does not apply to every traditional
community. In some traditional communities, the
headmen and headwomen do not fall under the
authority of or exercise power within the area of
jurisdiction of a senior traditional leader and/or
 principle traditional leader and/or royal family. Instead,
they are elected by their communities. In Premier of
the Eastern Cape and Others v Ntamo and Others,95
for example, the High Court found that the living
customary law rules of the Cala Reserve community in
the Xhalanga district in the Eastern Cape provide for
the election of a headman. The decision by the
amaGcina royal family to appoint a headman against
the wishes of the community, therefore, was set aside.
Archaeological and historical evidence also shows
that the existence of customary communities without a
hierarch of traditional leaders is a long-existing pattern
in Southern African communities.96 These communities
are referred to as ‘acephalous’ communities, which
literally means lacking a head or having no leader or
chief. Rather than being governed by a senior
traditional leader, these acephalous communities are
governed either by elected leaders or by collectives,
which make decisions together in gatherings commonly
known as imbizo or lekgotla. This practice is especially
common in the Eastern Cape.

9.4.3 Functions of traditional leaders

In so far as the functions of traditional leaders are concerned, the
Framework Act simply states that a traditional leader must perform the
functions ‘provided for in terms of customary law and customs of the
traditional community concerned, and in applicable legislation’.97
The TKLA adopts essentially the same approach. It states in this
respect that a traditional or Khoi-San leader must perform the functions
‘provided for (a) in terms of customary law and customs of the
traditional or Khoi-San community concerned; and (b) in terms of any
applicable national or provincial legislation’.98
 As these provisions clearly indicate, the Framework Act and the
TKLA themselves do not set out the functions of traditional and Khoi-
San leaders and neither do they abolish, amend or develop any of these
functions. Instead, it leaves this task to traditional and Khoi-San
communities themselves as well as the national and provincial
legislatures.

9.4.4 Recognition of traditional communities

As noted above, the concept of traditional leadership is defined in the
Framework Act as ‘the customary institutions or structures, or
customary systems or procedures of governance, recognised, utilised or
practised by traditional communities’ and traditional communities are
defined as those recognised as such in section 2 of the Act.
Section 2 of the Framework Act provides in this respect that a
community may be recognised as a traditional community if it is subject
to a system of traditional leadership in terms of that community’s
customs and if it observes a system of customary law.99
The person responsible for recognising a traditional community is
the Premier of a province. Before a Premier can do so, however, he or
she must consult with the provincial House of Traditional Leaders (the
provincial House), the community itself and, if applicable, the King or
Queen under whose authority the community falls. The process that the
Premier follows must be set out in provincial legislation.100
After the Premier has recognised a traditional community, the
Framework Act provides that it must transform and adapt its customary
laws and customs so that they comply with the principles in the Bill of
Rights, in particular by preventing unfair discrimination and promoting
the right to gender equality.101
Apart from recognising a traditional community, the Framework Act
also provides that the President may recognise a kingship or
queenship102 and that a Premier may recognise a principal traditional
community.103
Finally, it is important to note that the transitional provisions of the
Framework Act provide that any ‘tribe’ that had been established in
terms of law during the colonial and apartheid eras and was still
recognised as a tribe at the time the Act came into operation, was
deemed to be recognised as a traditional community under the Act.104
Like section 2 of the Framework Act, section 3 of the TKLA makes
provision for the recognition of kingships or queenships,105 traditional
communities,106 headmanships and headwomanships.107 Section 5 of
the TKLA also makes provision for the recognition of Khoi-San
communities and branches.
While the criteria for recognising kingships, queenships and
traditional communities are more extensive than in the Framework Act,
the process is essentially the same. The President may recognise a
kingship or queenship108 and a Premier may recognise a traditional
community, a headmanship or headwoman ship, or a Khoi-San
community or branch.109
The President may recognise a kingship or queenship only after
consulting the Minister responsible for traditional affairs and a Premier
may recognise a traditional community or Khoi-San community only
after consulting the relevant provincial house of Traditional Leaders
and a headmanship or headwomenship only after consulting the
relevant traditional council.
Similar to the Framework Act, the transitional provisions of the
TKLA provide that any kingship, queenship, principal traditional
community, traditional community, headmanship or headwomanship
that was recognised as such in terms of the Framework Act or in terms
of provincial legislation is deemed to have been recognised in terms of
section 3 of the Act.110

9.4.5 Establishment of traditional councils

After the Premier has recognised a traditional community, that
traditional community must establish a traditional council in
accordance with provincial legislation.111 The number of community
members who may serve as councillors must be determined in
accordance witha formula adopted by the Premier.112 At least one third
of the councillors must be women. However, if this requirement cannot
be met, the Premier may, in accordance with a procedure set out in
provincial legislation, determine a lower threshold for a traditional
council.113
Out of the total number of community members who may be
councillors, 60% must be appointed by the senior traditional leader and
40% must be democratically elected. The senior traditional leader may
appoint councillors either from among the traditional leaders of the
community or ordinary members of the community. The senior
traditional leader serves as the chairperson of the traditional council for
a term of five years.114
Apart from imposing an obligation on a recognised traditional
community to establish a traditional council, the Framework Act also
imposes an obligation on a recognised king or queen to establish a royal
council115 and an obligation on a recognised principal traditional leader
to establish a principal traditional council.116
Finally, it is important to note that the transitional provisions of the
Framework Act provide that a tribal authority that had been established
in terms of law during the colonial and apartheid eras and was still
recognised as a tribal authority at the time the Act came into operation,
was deemed to be a traditional council under the Act.117
The provisions of the TKLA are essentially the same as those of the
Framework Act, except that they have been extended to include Khoi-
San councils.118

9.4.6 Traditional communities, traditional councils and the

homelands
As noted above, the transitional provisions of both the Framework Act
and the TKLA provide that tribes and tribal authorities established in
terms of the Bantu Authorities Act during the apartheid era, and which
were still recognised as such, are deemed to be traditional communities
and traditional councils under the Framework and TKLA Acts. Given,
however, that the Bantu Authorities Act linked each tribe and tribal
authority to the reserves created in terms of the Native Land Acts which
were subsequently developed into homelands, it follows that both the
Framework Act and the TKLA continue to link traditional communities,
traditional councils and traditional leadership to the former homelands
created by apartheid legislation.119
Apart from the fact that linking traditional leadership to the former
homelands is controversial and has been criticised by civil society
groups and rural activists,120 an important question that arises is
whether this link subjects everyone who lives within the former
homelands to the authority of the specific traditional leader or
traditional leadership structure, regardless of their cultural affiliations.
Commenting on the draft Traditional and Khoi-San Leadership Bill, the
Land and Accountability Research Centre (LARC) argued that the Bill
did subject everyone in these areas ‘to the rule of a chief and tribal
authority, regardless of their personal choices and the history of
constituting ‘tribes’ and deposing or appointing ‘chiefs’. The LARC then
continues:
The popular saying ‘kgosi ke kgosi ka morafe’ or ‘inkosi yinkosi ngabantu’
shows that traditional leaders are supposed to gain their authority and
legitimacy from the people they lead. Yet, the Bill [now Act] starts with the
opposite idea that traditional leaders’ authority is based on the existence of a
defined territory that was declared and established through government
proclamation.121

Regardless of one’s view on this, what is beyond dispute is that first the
Framework Act and now the TKLA have potentially major
consequences for the manner in which large sections of the population
are governed. Roughly 16 to 21 million122 people live in the former
homelands of South Africa or are sequentially migratory between them
and an urban area with which they are connected by labour and
dependence on the cash economy. A large proportion of villages in
these former homelands are remote, deep rural areas which were
systematically disenfranchised and deprived of resources by the
apartheid government and thus left with only poorly funded traditional
structures as their form of local government.123
As some of the other chapters of this textbook have indicated, the
Constitution’s purpose is largely to overcome this entrenched inequality
of citizenship and disproportionate access to resources within South
Africa’s borders and people that is concomitant. How successful this
transformative vision has been is a highly contested question.

9.4.7 The functions of traditional councils

Once a traditional council has been established by a recognised
traditional community, the Framework Act confers a wide range of
functions on that council, the most important of which are
‘administering the affairs of the traditional community in accordance
with customs and tradition’; ‘assisting, supporting and guiding
traditional leaders in the performance of their functions’; and
‘performing the functions conferred by customary law, customs and
statutory law consistent with the Constitution’.124
Apart from these substantive powers, the Framework Act also
confers several other soft powers on traditional councils, including
supporting municipalities in the identification of community needs;
participating in the development of policy and legislation at a
municipal level; participating in development programmes of the local,
provincial and national spheres of government; promoting the ideals of
co-operative governance, integrated development planning,
sustainable development and service delivery; and promoting
indigenous knowledge systems for sustainable development and
disaster management.125
Besides conferring these functions on traditional councils, the
Framework Act also confers a range of functions on recognised kingship
or queenship councils126 and principal traditional councils.127 These
functions are concerned mostly with administering the affairs of the
king, queen or principal traditional leader; regulating the relationship
between the king, queen or principle traditional leader and the senior
traditional leaders who fall under their jurisdiction; and promoting
unity between the traditional communities that fall under their
jurisdiction.
The Framework Act also authorises the national and provincial
governments, through legislative and other measures, to provide a role
for traditional councils and traditional leaders in respect of a long list of
matters. These matters include: arts and culture; land administration;
agriculture; health; welfare; the administration of justice; safety and
security; the registration of births, deaths and customary marriages;
economic development; environment, tourism; disaster management;
the management of natural resources; the dissemination of
information; and education. Before doing so, however, the national or
provincial organ of state must comply with the guiding principles set
out in the Act and monitor the implementation of the role or function to
ensure that it is being performed consistently with the Constitution.128
With one exception, the TKLA confers the same functions on
kingships or queenship councils and principle traditional councils129 as
well as traditional councils and Khoi-San councils and branches. 130 The
exception relates to the allocation of roles to these councils. Instead of
authorising ‘organs of state’ to provide a role in respect of the long list of
matters set out in section 20 of the Framework Act, the TKLA empowers
‘departments’ within both the national and provincial spheres of
government, through legislative and other measures, to provide a role
for a kingship or queenship council, principle traditional council,
traditional council, Khoi-San council and traditional and Khoi-San
leaders in respect of any of the ‘functional areas’ of that department. In
addition, and most importantly, it expressly provides that such a role
may not include any decision-making power.131
Although both the Framework Act and the TKLA potentially confer
substantial powers on traditional councils and, therefore, on traditional
leaders, the legislation is silent on the mechanisms through which
traditional communities may hold their leaders accountable. While
both Acts provide for a withdrawal of the recognition of a traditional
community ‘where the majority of traditional communities under the
jurisdiction of the kingship or queenship or principal traditional
community concerned or traditional leader concerned request the
President, in the case of a kingship or queenship, or the relevant
Premier, in the case of a principal traditional community’132 to do so,
they do not explicitly provide for the situation that arose in the Pilane
case discussed above, where the inhabitants of a particular village were
unhappy with the leadership of Kgosi Pilane and wanted their village to
secede from the traditional community.

The power of traditional leaders to levy taxes

As part of the system of indirect rule introduced first in
Natal and subsequently in the rest of the country, the
colonial and apartheid governments granted traditional
leaders the power to impose so-called ‘tribal levies’.
These levies were compulsory fees charged by
traditional authorities on their traditional communities.
They could take the form of either a fixed annual sum
or ad hoc amounts for specific purposes.133
As Claassens points out, there was strong
resistance to these levies among traditional
communities during the anti-apartheid struggle in the
1980s and early 1990s, partly because they gave rise
to a system of double-taxation and partly because the
‘funds collected were not properly accounted for’. The
size of these protests and the fact that they were
supported by the United Democratic Front (UDF),
convinced many rural people to no longer pay their
levies.134 Given this history, it is not surprising that the
White Paper on Traditional Leadership and Governance
(2003) unequivocally called for the abolition of this
practice:
The authority to impose statutory taxes and levies lies with
municipalities. Duplication of this responsibility and the double
taxation of people must be avoided. Traditional leadership
structures should no longer impose statutory taxes and levies on
communities.135

The unequivocal approach adopted in the White Paper

is also consistent with financial provisions of the
Constitution which confer the power to raise revenue
only on the national, provincial and local spheres of
government subject to strict procedural
requirements. Unfortunately, the Framework Act is
136

not as unequivocal as the White Paper. Although the

Act does not explicitly refer to tribal levies, it does
provide that tribal councils are entitled to receive gifts
and levies.
Section 4(2) of the Framework Act thus states that
‘[a]pplicable provincial legislation must regulate the
performance of functions by a traditional council by at
least requiring a traditional council to: (a) keep proper
records, (b) have its financial
statements audited, (c) disclose the receipt of
gifts; and (d) adhere to the code of conduct. And
section 4(3)(b) states that a traditional council must
meet at least once a year with its traditional
community to give account of the activities and
finances of the traditional council and levies received
by the traditional council’.137
Despite the fact that these provisions appear to
contradict the approach adopted in the White Paper
and are potentially unconstitutional, some provinces
have passed provincial legislation explicitly authorising
traditional councils to impose tribal levies or raise
voluntary contributions. The Limpopo Traditional
Leadership and Institutions Act,138 for example,
explicitly authorises a traditional council to impose a
‘traditional council levy’ on every taxpayer in the
traditional area. Section 25 thus provides that:
(1) A traditional council may, with the approval of the Premier,
levy a traditional council rate upon every taxpayer of the
traditional area concerned.

(2) The levy of a traditional council rate under subsection (1)

shall be made known by the Premier by notice in the
Gazette and shall be of force from the date mentioned in
such notice.
(3) Any taxpayer … who fails to pay the traditional council levy
may be dealt with in accordance with the customary laws
of the traditional community concerned.

By contrast, the Eastern Cape Traditional Leadership

and Governance Act,139 the North West Traditional
Leadership and Governance Act140 and the Northern
Cape Traditional Leadership and Governance and
Houses of Traditional Leaders Act141 explicitly prohibit
traditional councils from imposing any levies on
members of the community. At the same time,
however, they confer the authority on traditional
councils to request voluntary contributions, provided:
(a) that the majority of the members of a traditional
community have consented, at a meeting, to the
payment of such contributions; and (b) that the
voluntary contribution is made for the purpose of
financing a specific project.
Although these provincial statutes expressly
provide that the contributions must be voluntary, the
fact that the decision to request them is taken by the
majority of the members of the traditional community
at a meeting raises doubts about the extent to which
members of the community who disagreed with the
decision or did not attend the meeting can refuse to
pay them in practice.
As Claassens points out, the involuntary nature of
these contributions in practice is also demonstrated by
the punitive lengths traditional leaders will often go to
in order to compel community members to pay them.
These include denying community members
‘confirmation of address’ letters that in turn prevent
them from obtaining identity documents, opening bank
accounts, or applying for child support grants and
pensions. In some instances, community members are
 also prevented from burying their loved ones until they
pay outstanding levies.142
Finally, the Free State Traditional Leadership and
Governance Act,143 the KwaZulu-Natal Traditional
Leadership and Governance Act144 and the
Mpumalanga Traditional Leadership and Governance
Act145 say nothing specifically about levies in their
legislation. Like the Framework Act, however, they
appear to authorise the receipt of gifts by a traditional
council.
Although the TKLA also provides that a traditional
or Khoi-San council are entitled to receive gifts, it does
not provide that they are entitled to receive levies.
Section 20(2) thus states that ‘[a] traditional and
Khoi-San council must: (a) keep proper records; (b)
have its financial statements audited …; (c) disclose to
the Premier concerned, the receipt of gifts with a value
above an amount as may be determined by the
Minister by notice in the Gazette; and (d) adhere to
the code of conduct’.146
While these provisions are still not entirely
consistent with the White Paper and the Constitution,
they do appear to narrow the circumstances in which
traditional and Khoi-San councils could potentially
impose traditional community levies in the form of
‘gifts’ and raise additional questions about the validity
of provincial legislation authorising levies and gift.

9.5 The National House of Traditional Leaders

9.5.1 Introduction
Section 212(2) of the Constitution provides that national legislation may
establish a house of traditional leaders to deal with matters relating to
traditional leadership, the role of traditional leaders, customary law and
the customs of communities observing a system of customary law.147
The national legislation referred to in this section is the NHTLA.148 The
NHTLA will be repealed and replaced by the TKLA when it is brought
into operation.

9.5.2 The establishment and composition of the national

House
The NHTLA establishes a house of traditional leaders known as the
National House of Traditional Leaders (the national House).149 The
members of this national House are not democratically elected. Instead,
the NHTLA provides that it is composed of three senior traditional
leaders150 elected by each provincial house of traditional leaders
(provincial House) or, if there are not enough senior traditional leaders
in a provincial House, the headmen or headwomen elected by that
provincial House.151
If a provincial House has not been established, the NHTLA provides
that:
(a) where there are more than three traditional councils performing the
functions of a local house of traditional leaders, the chairpersons of these
councils must elect from among themselves three representatives to serve
in the national House;
(b) where there are three or less traditional councils performing the functions
of a local house of traditional leaders, the chairpersons of these councils
automatically serve as members of the national House; or
(c) where there are one or more local houses, the senior traditional leaders in
the province must elect from among themselves, three representatives to
serve in the national House.152

At least one third of the members of the national House must consist of
women. However, if this requirement cannot be met, the Minister
responsible for traditional leadership matters must, after consultation
with the Premier of the province in question and the provincial House
concerned, determine a lower threshold.153
Unlike the NHTLA, the TKLA establishes, not only a house of
traditional leaders, but also Khoi-San leaders. This house is known as
the National House of Traditional and Khoi-San Leaders. 154 Once again,
the members of this national House are not democratically elected.
Instead, the TKLA provides that if a provincial House has been
established and there are:
(a) only senior traditional leaders, the provincial House must elect three of
them to serve as members in the national House;155
(b) only senior Khoi-San leaders, the provincial House must elect three of
them to serve in the national House;156
(c) more senior traditional leaders than senior Khoi- San leaders, the
provincial House must elect three senior traditional leaders and one
senior Khoi-San leader to serve in the national House and vice versa;157
and
(d) an equal number of senior traditional and senior Khoi-San leaders, the
provincial House must elect two of each to serve in the national House.158

If a provincial House has not been established, the TKLA provides that
the senior traditional leaders and the senior Khoi-San leaders must, at a
meeting convened by the Premier, elect from themselves
representatives to serve in the national House in accordance with the
representation numbers set out above.159

9.5.3 Qualification and disqualification of members

In order to be elected as a member of the national House, a person must
be a senior traditional leader or a headman or headwoman. Even if they
satisfy these criteria, certain persons are disqualified from being elected
as members of the national House.
The NHTLA provides in this respect that a person is disqualified
from becoming a member of the national House if he or she:
(a) is a member of a municipal council, a provincial legislature or
Parliament;160
(b) is serving a sentence of imprisonment at the time members are elected;161
(c) is an unrehabilitated insolvent;162
(d) has been declared to be of unsound mind by a court;163 and
(e ) has been convicted of a criminal offence and sentenced to more than 12
months imprisonment without the option of a fine.164
Apart from these disqualifications, the NHTLA also provides that a
person is disqualified from becoming a member of the national House if
he or she is not a South African citizen; and is not permanently resident
in South Africa.165
The TKLA largely restates these requirements, but adds one more,
namely that a person is also disqualified from becoming a member of
the national House if he or she is not simultaneously a member of a
provincial House.166

9.5.4 The term of office and dissolution of the national

House
The term of office of the national House is five years.167 After its term
ends, however, the national House remains competent to function and
can be summoned by the Minister for an extraordinary meeting until
the day before the first meeting of the next national House.168 In
addition, the NHTLA also provides that the national House must be
dissolved when its term of office expires, or when two-thirds of the total
complement of its members vote in favour of dissolving it.169
With one exception, the TKLA largely restates these provisions.170
The exception relates to the majority required for a vote in favour of
dissolving the national House. While the NHTLA requires two-thirds of
the total complement of members to vote in favour of dissolving the
national House, the TKLA simply requires a majority of the total
complement of members to do so.171

9.5.5 Chairperson and deputy-chairperson of the national

House
At its first meeting after its election, the national House must elect one
of its members as the Chairperson and another as the Deputy-
Chairperson. The President or a person designated by the President
must preside over the election of the Chairperson and the Chairperson
must preside over the election of the Deputy-Chairperson.172
 The Chairperson has the powers vested in him or her by the NHTLA
and the rules and orders of the national House.173 He or she also
presides over the meetings of the national House.174 If the Chairperson
is absent, or is unable to perform his or her functions or if the office of
the Chairperson is vacant, the Deputy-Chairperson acts as the
Chairperson.175
The Chairperson and Deputy-Chairperson may be removed from
office by the national House by a vote supported by a two-thirds
majority of the full complement of the membership of the House.176 A
person may not serve as Chairperson or Deputy-Chairperson for more
than two consecutive terms.177
With one exception, the TKLA largely restates these provisions. The
exception relates the removal of the Chairperson and Deputy-
Chairperson. Surprisingly, the TKLA does not make provision for the
members to remove these office-bearers.

9.5.6 Meetings and decisions of the national House

The national House must meet at least once every quarter and during
the sitting of Parliament.178 The quorum for meetings of the national
House is 51% of the total membership of the national House.179
Decisions must be taken by consensus, or where a vote is taken, by two-
thirds of the members present and voting in the meeting.180 With one
exception, the TKLA largely restates these provisions. The exception
relates to the quorum. Instead of 51% of the total membership of the
national House, TKLA provides that the quorum must be 50% plus one
of the total membership.181

9.5.7 Powers and duties of the national House

As we have already seen, section 211(1) of the Constitution explicitly
states that traditional leadership can be recognised only in a manner
that complies with the other provisions of the Constitution, including
the founding values of a democratic state that embodies the values of
‘universal adult suffrage … regular elections and a multi-party system of
democratic government’.182 Given that the national House is not a
democratically elected body, an important consequence of section
211(1) is that only advisory and not legislative powers can be conferred
on the national House.
The fact that the national House is advisory in nature means that it
does not have the power to veto legislation or to take part in a non-
advisory role in the legislative processes set out in sections 74 to 77 of
the Constitution. Instead, it is simply empowered to consider Bills
referred to it by the Secretary to Parliament in terms of section 18 of the
Framework Act.183 Section 18 provides in this respect that any Bill that
‘pertains to customary law or customs of traditional communities’ must
be referred by the Secretary of Parliament to the national House for its
comments.184 After receiving such a Bill, the national House must,
within 30 days, make any comments it wishes to make.185
Apart from considering Bills pertaining to customary law or the
customs of traditional communities, the national House is also
empowered to ‘advise the national government’ and to ‘make
recommendations’ relating to policy and legislation regarding
traditional leadership, the role of traditional leaders, customary law and
the customs of communities observing a system of customary law,186
and to investigate and make available information on traditional
leadership, traditional communities, customary law and customs.187 The
national House must also be consulted on ‘national government
development programmes that affect traditional communities’.188
In addition, the NHTLA also imposes certain duties on the national
House, most of which are vague and have no binding consequences for
Parliament. These include the duties to co-operate with the provincial
Houses and to promote:
• the role of traditional leadership within a democratic constitutional
dispensation.
• nation building
• peace, stability and cohesiveness of communities
• the preservation of the moral fibre and regeneration of society
• the preservation of the culture and traditions of communities
• socio-economic development and service delivery
• the social well-being and welfare of communities
• the transformation and adaptation of customary law and custom so
as to comply with the provisions of the Bill of Rights in the
Constitution.189

The national House, therefore, does not have any direct legislative
powers and cannot veto legislation passed by Parliament. It is, in
essence, an advisory body aimed at ensuring that the interests of
traditional leaders and the communities represented by traditional
leaders are considered in the law-making process. Although the
national House must be consulted on issues affecting traditional
communities, including the passing of legislation affecting traditional
communities, the consultation process does not afford traditional
leaders any powers to slow down or thwart the legislative programme of
Parliament.
With one exception, the TKLA largely restates these provisions
(although it also broadens them to include both traditional and Khoi-
San leaders). The exception widens the types of Bills that must or may
be referred to it by the Secretary of Parliament for its comments. Section
39 of the TKLA provides in this respect that:
(a) any Bill that ‘directly affects traditional or Khoi-San communities or that
pertains to customary law or customs of traditional or Khoi-San
communities’ must be referred by the Secretary of Parliament to the
national House for its comments;190 or
(b) any Bill that ‘pertains to any matter referred to in section 154(2) of the
Constitution’ may be referred by the Secretary of Parliament to the
national House for its comments.191

After receiving such a Bill, the national House must within 60 days make
any comments it wishes to make and submit these to the Secretary.192

9.5.8 Conclusion
Considering the history provided to contextualise traditional leadership
within South Africa’s past and present political economy, it may initially
appear doubtful that traditional leadership should be recognised under
the Constitution. However, that is not anyone’s decision to make except
that of the people living under traditional leadership, on a case-by-case
basis as accords with their customary law. Amidst the rhetorical
discussions of how traditional leadership is being undermined and is
not sufficiently respected under the Constitution, it is unfortunate that
public and policy debates should be had outside of the explicit
recognition of the fact that ‘the institutionalisation of traditional
leadership’ that the government is determined to ensure dates right
back to the 19th century when Frederick Lugard articulated the policy
of indirect rule.193 This was social engineering that was devised, as
shown by Chief Justice Ngcobo in his discussion of the Black Authorities
Act,194 for the subjugation of the ‘natives’. It is only in the context of
confronting that truth that the constitutional imperative to:
Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

[…]

Heal the divisions of the past and establish a society based on democratic
values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which government is
based on the will of the people and every citizen is equally protected by law;
[and]

Improve the quality of life of all citizens and free the potential of each person

[…]195

can possibly be realised.

SUMMARY

Like other constitutional democracies, the South African Constitution

divides public power among the legislative, executive and judicial
branches of government and distributes legislative and executive power
among the national, provincial and local spheres of government. Apart
from the institutions and structures that make up the three branches of
the state and the three spheres of government, the Constitution also
confers power on another set of institutions and structures, namely
traditional leadership.
The constitutional framework governing traditional leadership is set
out in Chapter 12 of the Constitution and consists of two brief sections,
namely section 211 and section 212. These sections give effect to
Constitutional Principle XIII, which provides, inter alia, that ‘[t]he
institution, status and role of traditional leadership, according to
indigenous law, shall be recognised and protected in the Constitution’.
Apart from repeating the terms of Constitutional Principle XIII
almost word for word, however, sections 211 and 212 do not unpack the
implications of these provisions or take the obligations they impose on
the state much further. Instead, they leave this task to the national and
provincial legislatures. Parliament has responded to this task by passing
the Traditional Leadership and Governance Framework Act and the
National House of Traditional Leaders Act. However, both of these Acts
are set to be repealed and replaced by the Traditional and Khoi-San
Leadership Act when it is brought into operation.
The Acts have created a complex and controversial statutory
framework governing, inter alia, the recognition and formal
appointment of traditional leaders; the functions and powers of
traditional leaders; the recognition of traditional communities; the
establishment and functions of traditional councils; and the
establishment, composition, qualifications, terms, office-bearers,
meetings and powers and functions of the National House of
Traditional Leaders. The purpose of this chapter is to set out and
discuss the constitutional and statutory frameworks governing
traditional leadership in South Africa from a contextual and critical
perspective.

1 See Beall, J, Mkhize, S and Vawda, S (2005) Emergent democracy and ‘resurgent’ tradition:
Institutions, chieftaincy and transition in KwaZulu-Natal Journal of Southern African
Studies 31(4):755–756.
2 Act 22 of 2009.
3 Act 41 of 2003.
4 Act 3 of 2019.
5 Alexkor Ltd and Another v Richtersveld Community and Others (CCT 19/03) [2003] ZACC
18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003).
6 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1)
SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
7 See Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae);
Shibi v Sithole and Others; South African Human Rights Commission and Another v
President of the Republic of South Africa and Another [2004] ZACC 17.
8 Act 3 of 2019.
9 Act 41 of 2003.
10 Act 22 of 2009.
11 S 1 of the Framework Act.
12 S 2(1) of the Framework Act.
13 Himonga, C and Nhlapo, T (eds) (2014) African Customary Law in South Africa: Post-
apartheid and Living Law Perspectives 3rd ed 25.
14 (CCT 67/14) [2014] ZACC 36; 2015 (3) BCLR 268 (CC) (15 December 2014).
15 Bapedi Marota Mamone para 4.
16 Bennett, T and Murray, C ‘Traditional Leadership’ in Woolman, S, Roux, T and Bishop, M
(eds) (2013) Constitutional Law of South Africa 26–5. As Bennett and Murray point out, a
chief was classified by the colonial authorities as a king if he had gained authority over
neighbouring communities, while a chief was classified as a paramount chief if he had not
yet gained such authority or if the community he ruled was not large enough.
17 Bennett and Murray (2013) 26–6.
18 Bennett and Murray (2013) 26–7.
19 Himonga and Nhlapo (2014) 230.
20 Bennett and Murray (2013) 26–8, 26–9. This policy of indirect rule was pioneered in Natal
by Theophilus Shepstone (1817–1893) after he was appointed as the Secretary for Native
Affairs in the first colonial government (see Welsh, D (1971) The Roots of Segregation:
Native Policy in Colonial Natal 1845-1910 2nd ed).
21 Act 38 of 1927. This Act was later renamed the Black Administration Act.
22 S 5(1)(a) of the Native Administration Act.
23 S 2(7) of the Native Administration Act.
24 See Western Cape Provincial Government: In re DVB Behuising (Pty) Limited v North West
Provincial Government (CCT22/99) [2000] ZACC 2; 2001 (1) SA 500 (CC); 2000 (4) BCLR 347
(CC) (2 March 2000) para 41.
25 (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010).
26 Tongoane para 23 [footnotes omitted].
27 Bennett and Murray (2013) 26–10.
28 Himonga and Nhlapo (2014) 232.
29 Bapedi Marota Mamone para 9, quoting from Bennett, TW (2004) Customary Law in South
Africa 109.
30 The apartheid government distinguished black ethnic groups from one another on the
basis of their culture and language. The preamble of the Promotion of Bantu Self-
Government Act 46 of 1959 thus stated that ‘[the Bantu people of the Union of South Africa
do not constitute a homogenous people but form separate national units on the basis of
language and culture’. Acting in terms of this Act, the governing divided black South
Africans into the following ‘national units’: North-Sotho, South-Sotho, Swazi, Tsonga,
Tswana, Venda, Xhosa and Zulu (see Khunou, SF (2009) Traditional leadership and
 independent Bantustans of South Africa: Some milestones of transformative
constitutionalism beyond apartheid Potchefstroom Electronic Law Journal 12(4):81–87).
31 Native Land Act 27 of 1913 and the Native Trust and Land Act 18 of 1936. The Native Land
Act was later renamed the Black Land Act and the Native Trust and Land Act was renamed
the Development Trust and Land Act.
32 Act 68 of 1951. It was later renamed the Black Authorities Act.
33 Tongoane paras 24 and 25.
34 Act 46 of 1959. It was later renamed the Promotion of Black Self-Governing Act.
35 The 10 homelands were the Bophuthatswana, Ciskei, Gazankulu, KaNgwane, KwaNdebele,
KwaZulu, Lebowa, QwaQwa, Transkei, and Venda.
36 Act 21 of 1971. It was later renamed the Black States Constitution Act and then the National
States Constitution Act.
37 The Transkei was granted independence in 1976, Bophuthatswana in 1977, Venda in 1979
and the Ciskei in 1981. None of these ‘TBVC’ states was recognised as ‘independent’ by any
other state, except South Africa.
38 See Khunou (2009) 81.
39 Himonga and Nhlapo (2014) 17.
40 S 181(1) of the interim Constitution.
41 S 182 of the interim Constitution.
42 S 183 of the interim Constitution.
43 Bennett and Murray (2013) 26–17.
44 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September
1996).
45 First Certification Judgment para 189.
46 First Certification Judgment para 197.
47 Chief Albert John Mvumbi Luthuli, available at https://www.sahistory.org.za/people/chief-
albert-john-mvumbi-luthuli.
48 Spitz, R and Chaskalson, M (2000) The politics of transition: A hidden history of South
Africa’s negotiated settlement 46.
49 (CCT 03/07) [2008] ZACC 9; 2009 (2) SA 66 (CC); 2008 (9) BCLR 914 (CC) (4 June 2008).
50 Kaganas, F and Murray, C (1994) The contest between culture and gender equality under
South Africa’s interim Constitution Journal of Law and Society 21(4):409 410.
51 Shilubana para 41.
52 Shilubana para 43.
53 Shilubana para 48.
54 Shilubana paras 45–6.
55 Shilubana para 47.
56 Shilubana para 48.
57 Shilubana para 49.
58 See Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005
(1) BCLR 1 (CC) (15 October 2004); and Alexkor Ltd and Another v Richtersveld Community
and Others (CCT 19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003).
59 (CCT 46/12) [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (28 February 2013).
60 As the Constitutional Court explained in Pilane para 46, a ‘Kgotha Kgothe is a traditional
gathering at which members of a traditional community publicly debate and decide on
matters affecting the community, which may include evaluating and criticising the
performance of their leaders’.
61 Pilane para 39.
62 Act 41 of 2003.
63 Act 2 of 2005.
64 Pilane paras 41–2.
65 Pilane para 44.
66 Pilane para 47.
67 Pilane para 49.
68 Luthuli, A (1962) Let My People Go.
69 Mbeki, G (1964) The Peasants Revolt.
70 Act 41 of 2003.
71 Act 3 of 2019.
72 Act 22 of 2009.
73 S 1 of the Framework Act.
74 S 1 of the Framework Act.
75 S 1 of the TKLA.
76 S 1 of the TKLA. Traditional leadership is defined in s 1 of the TKLA as ‘the institutions or
structures established in terms of customary law or customs, or customary systems or
procedures of governance, recognised, utilised or practiced by traditional communities’.
77 S 1 of the Framework Act.
78 S 8 of the Framework Act.
79 S 1 of the Framework Act.
80 S 9 of the Framework Act.
81 S 1 of the Framework Act.
82 S 10A of the Framework Act.
83 S 1 of the Framework Act.
84 S 11 of the Framework Act.
85 S 1 of the Framework Act.
86 S 11 of the Framework Act.
87 S 1 read together with s 7(1)(a) of the TKLA. Apart from kings, queens, principle traditional
leaders, senior traditional leaders and headmen and headwomen, the TKLA also
recognises regents, acting traditional leaders and deputy traditional leaders.
88 S 7(1)(b) of the TKLA.
89 S 1 read together with s 8 of the TKLA.
90 S 8(2) of the TKLA.
91 S 1 read together with s 10 of the TKLA.
92 S 10(1)(a) of the TKLA.
93 S 10(1)(b) of the TKLA.
94 S 10(1)(c) of the TKLA.
95 (169/14) [2015] ZAECBHC 14; 2015 (6) SA 400 (ECB); [2015] 4 All SA 107 (ECB) (18 August
2015).
96 See, for example, Delius, P ‘Contested Terrain: Land Rights and Chiefly Power in Historical
Perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power & Custom:
Controversies generated by South Africa’s Communal Land Rights Act 211–235; Ntsebeza, L
(2005) Democracy compromised: Chiefs and the politics of the land in South Africa 326; and
Peires, J (1981) The House of Phalo: A history of the Xhosa people in the days of their
independence 31–41.
97 S 19 of the Framework Act.
98 S 15 of the TKLA.
99 S 2(1) of the Framework Act.
100 S 2(2) of the Framework Act.
101 S 2(3) of the Framework Act.
102 S 2A of the Framework Act.
103 S 2B of the Framework Act.
104 S 28(3) of the Framework Act.
105 S 3(1) of the TKLA.
106 S 3(4) of the TKLA
107 S 3(7) of the TKLA.
108 S 3(3) of the TKLA.
109 S 5(1) of the TKLA.
110 S 63(1) of the TKLA.
111 S 3(1) of the Framework Act.
112 S 3(2)(a) of the Framework Act.
113 S 3(2)(b) and (d) of the Framework Act.
114 S 3(2)(c) of the Framework Act.
115 S 3A of the Framework Act.
116 S 3B of the Framework Act.
117 S 28(4) of the Framework Act.
118 S 16 and 18 of the TKLA.
119 Land and Accountability Research Centre (LARC) Submission on the Traditional and Khoi-
San Leadership Bill, 2015. 7 September 2018, accessed on 17 August 2020 at
http://www.larc.uct.ac.za/sites/default/files/image_tool/images/347/Submissions/LARC
%20submission%20on%20TKLB_NCOP_20180907.pdf.
120 Land and Accountability Research Centre (2018).
121 Land and Accountability Research Centre (2018).
122 See Debbie Budlender as quoted in Claassens, A and Ngubane, S (2008) ‘Women, land and
power: The impact of the Communal Land Rights Act’ in Claassens, A and Cousins, B (eds)
Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights
Act 154–83 at 168 fn 22.
123 Oomen, B (2005) Chiefs in South Africa: Law, power and culture in the post-apartheid era
37–86.
124 S 4(1) of the Framework Act.
125 S 4(1) of the Framework Act.
126 S 4A of the Framework Act.
127 S 4C of the Framework Act.
128 S 20 of the Framework Act.
129 S 19(1) of the TKLA.
130 S 20(1) of the TKLA.
131 S 25(1) of the TKLA.
132 S 2 of the Framework Act, and s 4(1) of the TKLA.
133 Himonga and Nhlapo (2014) 249.
134 Claassens, A (2011) Resurgence of tribal levies: Double taxation for the rural poor South
African Crime Quarterly 35: 11 12.
135 Department of Provincial and Local Government White Paper on Traditional Leadership
and Governance GN 2336 in GG 25438 of 10 September 2000.
136 See ss 228 and 229 of the Constitution.
137 Our emphasis.
138 Act 6 of 2005.
139 Act 4 of 2005. Section 30 prohibits the imposition of levies and section 31 authorises a
decision to raise voluntary contributions.
140 Act 2 of 2005. Section 28 prohibits the imposition of levies and section 29 authorises a
decision to raise voluntary contributions.
141 Act 2 of 2007. Section 24 prohibits the imposition of levies and section 25 authorises a
decision to raise voluntary contributions.
142 Claassens (2011) 11.
143 Act 8 of 2005. Section 8 appears to authorise the receipt of gifts.
144 Act 5 of 2005. Section 8 appears to authorise the receipt of gifts.
145 Act 3 of 2005. Section 9 appears to authorise the receipt of gifts.
146 Our emphasis.
147 S 212(1)(a) of the Constitution.
148 Act 22 of 2009.
149 S 2(1) of the NHTL.
150 A senior traditional leader is defined in s 1 of the NHTLA as a ‘senior traditional leader
defined in section 1 of the [Traditional Leadership and Governance Framework Act 41 of
2003]’. A senior traditional leader is defined in s 1 of this Act as ‘a traditional leader of a
specific traditional community who exercises authority over a number of headmen or
headwomen in accordance with customary law, or within whose area of jurisdiction a
number of headmen or headwomen exercise authority’. A senior traditional leader is
defined in s 1 of the Traditional and Khoi-San Leadership Act 3 of 2019 as ‘a person
recognised as a senior traditional leader in terms of section 8’ of the Act.
151 S 3(1) of the NHTLA. If a provincial House fails to elect one or more of its members to serve
in the national House, the Premier of the province must designate members of the
provincial House to serve in the national house (s 4(7) of the NHTLA).
152 S 3(2) of the NHTLA. The chairpersons of the traditional councils that serve as local houses
must be senior traditional leaders themselves (s 3(3) of the NHTLA).
153 S 3(4) of the NHTLA.
154 S 27(1) of the TKLA.
155 S 28(1)(b)(i) of the TKLA.
156 S 28(1)(b)(ii) of the TKLA.
157 S 28(1)(b)(iii) and (iv) of the TKLA.
158 S 28(1)(b)(v) of the TKLA. If a provincial House has been established and there are two or
less of senior traditional leaders or senior Khoi-San leaders, then these leaders
automatically serve as members of the national House (s 28(1)(b)(vi) of the TKLA).
159 S 28(2)(a) of the TKLA. If a provincial House has not been established and there are two or
less senior traditional leaders of senior Khoi-San leaders, then these leaders automatically
serve as members of the national House (s 28(2)(b) of the TKLA).
160 S 5(a) of the NHTLA.
161 S 5(b) of the NHTLA. Section 30(b) of the TKLA provides that this sentence of
imprisonment must be for more than 12 months without the option of a fine.
162 S 5(c) of the NHTLA.
163 S 5(d) of the NHTLA.
164 S 5(e) of the NHTLA. The NHTLA also provides that this disqualification ends five years
after the sentence has been completed.
165 S 5(f) and (g) of the NHTLA.
166 S 30(f) of the TKLA.
167 S 2(2) of the NHTLA.
168 S 2(3) of the NHTLA.
169 S 21 of the NHTLA.
170 S 27(2) and 47(1) and (2) of the TKLA.
171 S 47(1)(b) of the TKLA.
172 S 9(1) of the NHTLA. Section 34(1) of the TKLA provides that the Chief Justice or another
judge designated by the Chief Justice, and not the President, must preside over the election
of the Chairperson.
173 S 9(2) of the NHTLA.
174 S 9(3) of the NHTLA.
175 S 9(4) of the NHTLA.
176 S 9(9) of the NHTLA.
177 S 9(13) of the NHTLA. Section 34(12) of the TKLA provides that a person may not serve as
Chairperson or Deputy-Chairperson for more than two terms and not simply for more than
two consecutive terms.
178 S 8(4) of the NHTLA.
179 S 8(6) of the NHTLA.
180 S 8(7) of the NHTLA.
181 S 33(6) of the TKLA.
182 S 1(d) of the Constitution.
183 S 11(2)(a) of the NHTLA.
184 S 18(1)(a) of the Framework Act.
185 S 18(1)(b) of the Framework Act.
186 S 11(2)(b) of the NHTLA.
187 S 11(2)(c) of the NHLTA.
188 S 11(2)(e) of the NHTLA.
189 S 11(1)(a) of the NHTLA.
190 S 39(1)(a)(i) of the TKLA.
191 S 39(1)(a)(ii) of the TKLA. S 154(2) of the Constitution provides, inter alia, that draft
national legislation that affects the status, institution, powers or functions of local
 government must be published for public comment before it is introduced in Parliament
192 S 39(1)(b) of the TKLA.
193 Lugard, FJD (1922) The Dual Mandate in British Tropical Africa 200–203.
194 Tongoane.
195 Preamble of the Constitution.
PART TWO

The Bill of Rights and

the enforcement of the
Constitution

CHAPTER 10 Introduction to and application of the

Bill of Rights
CHAPTER 11 The limitation of rights
CHAPTER 12 Constitutional remedies
CHAPTER 13 Equality, human dignity, freedom and
privacy rights
CHAPTER 14 Diversity rights
CHAPTER 15 Political and process rights
CHAPTER 16 Constitutional property law
CHAPTER 17 Education and socio-economic rights
Introduction to and application of
the Bill of Rights

10.1 Introduction

10.2 The structure of Bill of Rights litigation

10.3 The application of the Bill of Rights

10.3.1 Introduction
10.3.2 Who is entitled to claim the rights in the Bill of Rights?
10.3.2.1 Introduction
10.3.2.2 Natural persons
10.3.2.3 Juristic persons
10.3.2.4 Standing to enforce rights
10.3.3 Who is bound by the rights in the Bill of Rights?
10.3.3.1 Introduction
10.3.3.2 The direct vertical application of the Bill of Rights
10.3.3.2.1 Introduction
10.3.3.2.2 All organs of state
10.3.3.3 The direct horizontal application of the Bill of Rights
10.3.3.4 The indirect application of the Bill of Rights
10.3.3.4.1 Introduction
10.3.3.4.2 The indirect application of the Bill of Rights to legislation
10.3.3.4.3 The indirect application of the Bill of Rights to the common
law and customary law
 Summary

10.1 Introduction
The South African Bill of Rights – constructed in a manner to give effect
to the transformative vision of the Constitution – sets out a unique
human rights vision. Its breadth of application – to both the state and, in
many cases, to private parties – and the range of rights protected in it,
establishes the Bill of Rights as a post-liberal text aimed at facilitating
the social and economic transformation of South Africa while
protecting the human dignity of all. Whether the Bill of Rights has
achieved, or is likely to achieve, this ambitious goal is in dispute as
critics point out that 25 years after the advent of democracy, inequality
and the denial of rights remain prevalent. From chapter 13 and onwards
we will look more closely at a selected list of specific rights protected in
the Bill of Rights,1 but before we do, it is necessary to deal with several
important technical issues regarding Bill of Rights adjudication. This is
because the structure of Bill of Rights litigation differs from litigation
dealing with other alleged breaches of the Constitution.
When confronted with the question of whether law or conduct is in
breach of the Bill of Rights, several preliminary questions arise. It is
imperative to consider these questions carefully before engaging in
litigation.
First, a court must ask whether the person or organisation that
claims that their rights have been infringed is entitled to the protection
provided by the Bill of Rights and whether the person or organisation
that wishes to approach the court has standing to bring the case. While
most of the rights in the Bill of Rights are granted to everyone, including
non-citizens, some are restricted to a specific group of persons. There
are also complicated rules to determine whether juristic persons can
claim the protection of the Bill of Rights.
Once a court has established that the person or organisation that
claims that their rights have been infringed is protected by the Bill of
Rights, it must ask whether the person or organisation that is alleged to
have infringed the rights is bound by the Bill of Rights. Apart from the
state, the Bill of Rights also binds private individuals and organisations,
but only when the relevant (and complicated) provisions of the
Constitution have been satisfied.
After a court has established that the rights of a natural or juristic
person have been infringed, it has to determine whether the
infringement is justified in terms of the limitation clause set out in
section 36. If the court finds that the limitation is justified, the
infringement is ‘saved’ and the law or conduct is constitutionally valid.
However, if the court finds that the limitation is not justified, then an
infringement cannot be saved and the law or conduct is
unconstitutional and invalid.
Law or conduct which unjustifiably infringes the Bill of Rights must
be declared invalid. Apart from a declaration of invalidity, however,
there are a number of other constitutional remedies a court may issue.
Among these are declaratory orders, prohibitory interdicts, mandatory
interdicts, structural interdicts, constitutional damages and meaningful
engagement.
This chapter, as well as chapters 11 and 12, deals with the technical
questions relating to Bill of Rights adjudication. While we will discuss
the substantive scope and content of the various fundamental rights
protected by the Bill of Rights in subsequent chapters, it is important
first to answer the relevant preliminary questions about the manner in
which Bill of Rights adjudication should proceed. These questions
include the following:
• Who can claim the rights protected in the Bill of Rights and who is
bound to respect the same rights?
• Can the rights be claimed only by people or also by organisations,
and if so, when?
• Are the rights binding only on the state or are they also binding on
private parties?
• To what extent and how can rights be legally limited and in which
situations?
• If there is an infringement of a right, how can that infringement be
remedied?
10.2 The structure of Bill of Rights litigation
When a person alleges that the state or another person has infringed a
right protected in the Bill of Rights, the process that a court must follow
to determine whether this allegation is valid or not is usually divided
into three stages, namely an application stage, a limitation stage and a
remedies stage.2

Figure 10.1 The three stages of Bill of Rights adjudication

The constitutional provisions that regulate these questions are set out in
the operational provisions of the Bill of Rights. Unlike the substantive
provisions dealing with specific rights, the operational provisions do not
regulate the substance of the fundamental rights that are protected by
the Bill of Rights. Instead, they regulate the manner in which the Bill of
Rights operates and the manner in which it can be enforced by the
courts.6
The operational provisions are:
• section 7: the state’s duty to respect, protect, promote and fulfil the
rights in the Bill of Rights
• section 8: who is bound by the rights
• section 36: the limitation of rights
• section 37: the suspension of rights in a state of emergency
• section 38: who has standing to enforce the rights
• section 39: the interpretation of rights.

Apart from these operational provisions, sections 167, 168, 169 and 172
of the Constitution also regulate the enforcement of the Bill of Rights.
These provisions deal with the jurisdiction of the courts, especially in
constitutional matters, and the remedies that the courts may grant
when a right protected by the Bill of Rights has been unjustifiably
infringed. What cannot be forgotten is that South Africa’s system of
government is premised on adherence to the rule of law, as articulated
in section 1(c) of the Constitution. Simultaneously, section 195 of the
Constitution requires ethical, open and accountable conduct by all
organs of State. The presumption, therefore, is that anyone exercising a
public power will not violate any right in the Bill of Rights.
Unfortunately, violations nonetheless occur. Thus, the operational
provisions of the Constitution establish exactly when and how litigation
may be instituted to vindicate a person’s rights.

Classifying rights
As we have already seen, the substantive provisions of
the Bill of Rights are those provisions that regulate the
substance of the fundamental rights that are
entrenched and protected in the Bill of Rights. These
rights may be classified in a number of different ways
and some rights may fall into more than one category.
One of the most widely used methods of
classifying rights is to draw a distinction between civil
and political rights, on the one hand, and social,
economic and cultural rights, on the other hand. This
classification is based on the distinction drawn
between the rights protected in the International
Covenant on Civil and Political Rights (ICCPR)7 and the
rights protected in the International Covenant on
Economic, Social and Cultural Rights (ICESCR).8
Civil and political rights are aimed at protecting
people from unlawful interference by the state, private
organisations and individuals and at guaranteeing the
ability of everyone to participate fully in the civil and
political life of the state. Civil and political rights
include the right to equality, the right to freedom of
expression, the right to a fair trial, the right to freedom
of assembly and the right to participate in elections
and to vote.9
Social, economic and cultural rights include the
right to education, the right to housing, the right to
health, the right to food and social security and the
right to freedom of religion. They impose an obligation
on the state not to interfere with the existing enjoyment
of these rights and, where applicable, to take positive
steps to provide people with the resources and the
services they need to live a decent, fulfilling and
minimally good life.10
Another common method of classifying human
rights is to draw a distinction between first generation,
second generation and third generation rights. This
classification is based on the historical development of
human rights and echoes the French revolution’s call
for liberté (freedom), equalité (equality) and fraternité
(solidarity).11
First generation rights are the oldest. They arose in
the eighteenth century and were included in the
American Bill of Rights (1789–1791) and the French
Declaration of the Rights of Man and Citizen (1789).
First generation rights consist largely of traditional civil
and political rights. Sometimes they are also referred
to as blue rights.12
 Second generation rights arose at the end of the
nineteenth century and the beginning of the twentieth
century. They were included in the 1931 Constitution of
Spain and the 1936 Constitution of the Union of
Soviet Socialist Republics. Second generation rights
consist largely of social and economic rights.
Sometimes they are also referred to as red rights.13
Third generation rights are the most recent and
arose towards the end of the twentieth century. Third
generation rights include the right to self-
determination, the right to development and the right
to a healthy environment. Sometimes they are also
referred to as green rights.14
While the classifications set out above provide us
with some insights into the history and nature of the
rights protected in the Bill of Rights, it is important to
note that as international human rights law has
evolved, all rights are viewed as indivisible, interrelated
and interdependent. Therefore, the Bill of Rights itself
does not classify or categorise rights in any of these
ways. Although the Bill of Rights contains examples of
the different categories or generations of rights, it does
not distinguish in any way between the various rights.
Implicit, therefore, in the Bill of Rights is the idea
that our Constitution does not create a hierarchy of
rights.15 Rather than drawing hard and fast distinctions
between the rights, the courts have been mindful to
show that the rights in the Bill of Rights are also
interrelated, interdependent and mutually supporting.
This is best expressed by Nelson Mandela who said:
‘We do not want freedom without bread, nor do we
want bread without freedom’.

10.3 The application of the Bill of Rights

10.3.1 Introduction
During the application stage a court has to decide who is entitled to
claim the right in question and who is bound by the right in question.16
In addition, it also has to decide whether the Bill of Rights applies
directly or indirectly to the dispute before it.17
When the Bill of Rights applies directly, the purpose is to determine
whether the ordinary rules of law (statute law, common law and
customary law) are consistent with the Bill of Rights. If they are not, the
Bill of Rights overrides the ordinary rules of law. In these cases, the Bill
of Rights also generates its own set of special remedies, for example
declaratory orders, supervisory/structural interdicts, constitutional
damages and meaningful engagement.18
When the Bill of Rights applies indirectly, the purpose is to
determine whether the ordinary rules of law promote the values of the
Bill of Rights. If they do not, the Bill of Rights does not override the
ordinary law nor does it generate its own special remedies. Instead, the
court uses the Bill of Rights to develop the rules and remedies of the
ordinary law to avoid any inconsistency between the ordinary law and
the Bill of Rights.19
We consider each of these issues in turn in the next sections.

10.3.2 Who is entitled to claim the rights in the Bill of

Rights?

10.3.2.1 Introduction
In most cases, ‘everyone’ can claim the rights contained in the Bill of
Rights. This includes every person present in South Africa, irrespective
of whether they are citizens or non-citizens. A limited number of rights
are qualified in that only ‘citizens’,20 ‘children’21 or ‘detained’ persons22
can claim them. When a specific provision states that ‘everyone’ can
claim the right, it usually means that natural persons23 can claim the
right and, in some cases, also juristic persons.24 However, as we shall
see, not all rights can be claimed by juristic persons.
10.3.2.2 Natural persons
Most of the rights in the Bill of Rights are for the benefit of ‘everyone’.
Section 9(1), for example, provides that ‘everyone is equal before the
law and has the right to equal protection and benefit of the law’; section
11 that ‘everyone has the right to life’; and section 13 that ‘no one may
be subjected to slavery, servitude or forced labour’.
The courts have interpreted the term ‘everyone’ to refer not only to
South African citizens, but also to various categories of immigrants, be
they refugees,25 permanent residents26 or persons present in South
Africa on the basis of a temporary permit such as a work permit or a
study permit.27 Even foreigners who have yet to be lawfully admitted
into South Africa have been recognised as beneficiaries of the rights
guaranteed in the Bill of Rights.28 The term ‘everyone’, however, does not
include a foetus.29
While most of the rights in the Bill of Rights are for the benefit of
‘everyone’, some are for the benefit of a narrower category of persons
only. Section 19(1)(a), for example, provides that ‘every citizen is free to
make political choices, which includes the right (a) to form a political
party’; section 23(2)(a) that ‘every worker has the right (a) to form and
join a trade union’; and section 28(1)(a) that ‘every child has the right
(a) to a name and a nationality from birth’. Only those natural persons
who fall into the definition of the category in question may claim these
rights.30
To determine whether a particular person may claim such a right,
the courts will have to interpret the scope of the category in question. In
South African National Defence Union v Minister of Defence,31 for
example, members of the South African National Defence Force
claimed that they were entitled to form and join a trade union in terms
of section 23(2)(a) of the Constitution. To decide whether this claim was
valid, the Constitutional Court had to establish whether the word
‘worker’ was wide enough to include members of the armed forces. In
its judgment, the Court found that the word ‘worker’ was indeed wide
enough to include members of the armed forces. The Court based its
decision on the fact that members of the armed forces receive many of
the same benefits as other employees, for example a salary.32 In
addition, the International Labour Organisation considers members of
the armed forces to be workers for the purposes of the Convention on
the Freedom of Association and Protection of the Right to Organise 87
of 1948 and the Convention on the Right to Organise and Collective
Bargaining 98 of 1949, both of which South Africa has signed and
ratified.33

10.3.2.3 Juristic persons

While it is self-evident that individual human beings are entitled to the
protection provided by the rights in the Bill of Rights, the same cannot
be said about juristic persons. Can a big corporation claim to have a
right to free speech? Can a religious group claim the right to bodily
integrity? Can the human dignity of a tennis club be infringed? Can a
trade union claim it has a right not to be unfairly discriminated against?
In terms of the Constitution, apart from natural persons, juristic
persons such as churches, companies, trade unions and universities
that have legal personality, may also claim some of the rights in the Bill
of Rights in certain circumscribed circumstances. However, it is
important to note that unlike human beings, these juristic persons will
not always be able to claim the protection of a fundamental right.
Section 8(4) of the Constitution provides in this respect that ‘[a] juristic
person is entitled to the rights in the Bill of Rights to the extent required
by the nature of the rights and the nature of that juristic person’.
This provision, while recognising juristic persons as bearers of
rights, suggests that the rights that juristic persons can claim will be the
subject of interpretation by the courts. To determine whether a juristic
person can claim a particular right, therefore, the courts have to take
into account at least two factors, namely: the nature of the right being
invoked; and the nature of the juristic person in question.34
In so far as the first factor is concerned, it is quite clear that there are
some rights which by their very nature cannot be claimed by juristic
persons, for example the right to life (section 11), the right to vote
(section 19) and the right to health care, food and social security
(section 27). This is because juristic persons cannot enjoy these rights as
they are peculiarly related to individual human beings. There are,
however, other rights which juristic persons may claim, for example the
rights to equality (section 9); privacy (section 14); freedom of
expression (section 16); freedom of association (section 18); property
(section 25); access to information (section 32); just administrative
action (section 33); and access to courts (section 34).
A determining factor in establishing the nature of the juristic person
is to ascertain the activity it performs and whether it serves to enhance
the identity and dignity of natural persons, such as a religious
association. Indeed, natural persons often come together and form a
juristic person to help them achieve and protect their fundamental
rights. Natural persons may establish a media company to achieve and
protect the right to freedom of expression. That media company,
therefore, must have the power to claim the benefits and protection of
the rights in the Bill of Rights.35
Similarly, membership of a church relates to commonly held
religious beliefs and the practice thereof.36 It is not surprising, therefore,
that in Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park,37
the Court accepted that the respondent – a church – was entitled to
argue that its decision to dismiss the applicant from his position as a
music teacher because he was involved in a homosexual relationship
was protected by its right to freedom of religion.38 Although the church
was entitled to argue that its decision was protected by its right to
freedom of religion, the Court held, this right was outweighed by the
applicant’s right not to be unfairly discriminated against on the ground
of sexual orientation.39
If the juristic person was not created by natural persons to help
them achieve their human rights, it may not be entitled to claim the
rights in the Bill of Rights. For example, organs of state such as
Parliament or the President may not be entitled to claim any rights in
the Bill of Rights. This is because their purpose is to exercise the powers
that have been given to them in a way that promotes and protects the
rights of the people. They are not, therefore, entitled to the rights in the
Bill of Rights. Instead, they are bound by them.
The fact that organs of state are not entitled to claim any of the rights
in the Bill of Rights formed the basis of the Constitutional Court’s
judgment in State Information Technology Agency SOC Limited v Gijima
Holdings (Pty) Limited.40
As its name indicates, SITA is an organ of state responsible for
providing information technology services to the state. In this case, it
granted a tender to Gijima, a private company, to provide information
technology services to the Department of Defence. Approximately a
year later a payment dispute erupted between SITA and Gijima and,
after attempts to resolve this dispute by negotiation and arbitration
failed, SITA applied for an order reviewing and setting aside the tender.
It based its application on the ground that the decision to award the
tender to Gijima did not comply with the SITA’s procurement processes.
Both the High Court and a majority of the Supreme Court of Appeal
(SCA) dismissed SITA’s application on the ground that its decision to
award the tender to Gijima fell within the definition of administrative
action set out in the Promotion of Administrative Justice Act41 (PAJA)
and, accordingly, that its review application had to be brought within
the 180-day time limit set by section 7(1) of the PAJA. Unfortunately,
SITA had not complied with this time limit and neither had it applied
for an extension of the 180-day time limit. Its application, therefore, had
to be dismissed on this procedural ground.
After the SCA dismissed SITA’s appeal, it appealed to the
Constitutional Court. In its appeal, SITA argued that although its
decision to award the tender did fall into the definition of
administrative action, the PAJA did not apply to it for the purposes of
this case and, consequently, that it was not bound by the 180-day time
limit. The PAJA did not apply to it for the purposes of this case, SITA
argued because there is nothing in section 33 of the Constitution or
PAJA which indicates that an organ of state may claim the constitutional
right to just administrative action. Only natural and juristic persons may
claim this right. Its decision to award the tender, therefore, had to be
reviewed in terms of the principle of legality, which does not contain a
time limit, rather than PAJA.
The Constitutional Court agreed with the SITA. In arriving at this
decision, the Court held that it is axiomatic that fundamental rights are
meant to protect warm-bodied human beings primarily against the
state. They are not meant to protect the state from itself.42 The fact that
fundamental rights are meant to protect human beings and not the
state, the Court held further, is particularly true when it comes to the
right to just administrative action guaranteed in section 33 of the
Constitution for two reasons.
First, administrative law was used during the apartheid era as an
‘instrument of oppression’ and ‘a means of recognising and facilitating
the use of wide discretionary power which was conferred for
deliberately discriminatory ends’.43 Given this abusive history, it follows
that the beneficiaries of section 33 must be private persons and not the
state. Instead, the state is the bearer of any obligations imposed by
section 33.44
Second, section 33(3) expressly provides that ‘[n]ational legislation
must be enacted, [inter alia, to impose a duty on the state] to give effect
to [the] rights’ set out in sections 33(1) and 33(2). Given the express
words of this section, it is difficult to understand how the state can be
‘both the beneficiary of the rights and the bearer of the corresponding
obligation that is intended to give effect to the rights’.45 This clearly
indicates that only private persons, and not the state, enjoy rights under
section 33.46

The consequence of legal personality of

juristic persons in the context of protection of
the Bill of Rights
By now, it is clear that juristic persons are entitled to
claim the benefit of some of the rights in the Bill of
Rights, despite the fact that they are frequently
accused of claiming rights simply to promote their
business interests and to make a profit. Apart from
claiming the benefit of some of the rights in the Bill of
Rights, juristic persons are also bound by the Bill of
Rights when performing their functions. This is because
some juristic persons wield enormous power and the
manner in which they exercise that power may infringe
the Bill of Rights. When this does occur, the juristic
 person cannot hide behind the fact that it is not a part
of the state.
This principle may play an important role in the
Tiger Brands Listeriosis case. In 2018 Tiger Brans
unintentionally distributed and sold meat products
contaminated with the listeriosis virus. As a result, over
1 000 people became seriously ill and 218 died.
Some of the victims have come together and argued
that Tiger Brands infringed their constitutional rights to
life and bodily integrity and, consequently, that they
are entitled, not only to delictual damages, but also to
constitutional damages.47 Judge Phineas Mojapelo has
certified that this claim may proceed as a class action.
48
Class actions are discussed in more detail in the
next section.

10.3.2.4 Standing to enforce rights

In terms of the Constitution, it is not only those who claim that their
rights have been infringed who are permitted to approach the court to
enforce rights. Others may also approach the courts on behalf of those
individuals who claim their rights have been infringed. In the South
African context, many individuals whose rights have been infringed lack
the resources to approach the courts. The generous rules on standing –
set out in section 38(a)–(e) of the Constitution – assist such individuals
by allowing other individuals or organisations to approach the court on
their behalf. These generous standing provisions have been interpreted
in an expansive manner by the Constitutional Court, which has even
gone as far as declaring that ‘there is no clarity … as to what the outer
reaches of [section 38(a)–(e)] are’.49 Section 38 of the Constitution
provides in this respect that:
Anyone listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened, and
the court may grant appropriate relief, including a declaration of rights. The
persons who may approach a court are–
 (a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own
name;
(c) anyone acting as a member of, or in the interest of, a group or class of
persons;
(d) anyone acting in the public interest;
(e) an association acting in the interest of its members.

The Constitutional Court has considered the scope and content of

section 38 on a number of occasions.50 In these cases, the Court has
held that a complainant does not have to show that he or she has a
‘direct and personal interest’ in the relief claimed.51 Instead, a
complainant simply has to allege that one of the fundamental rights set
out in the Bill of Rights has been infringed or threatened; and show that
one of the categories of persons listed in section 38 of the Constitution
has a ‘sufficient interest’ in obtaining a remedy.52
An important consequence of this approach is that an applicant
does not have to allege that a particular person’s fundamental right has
been infringed or threatened. An applicant simply has to allege that a
fundamental right has been infringed or threatened.53
It is important to note, however, that it is not enough simply to allege
that a fundamental right has been infringed or threatened. In addition,
a complainant must also show that one of the categories of persons
listed in paragraphs (a) to (e) of section 38 of the Constitution has a
sufficient interest in the remedy the complainant is seeking.54 For
example, if an organisation approaches a court in terms of section 38(e)
of the Constitution on behalf of its members, it must show that the issue
is one that potentially affects its members. For example, an organisation
set up to advance the interests of a specific religious community will not
normally be able to rely on section 38(e) to obtain standing in a case
that deals with the right not to be evicted from a home in a matter
completely unrelated to the interests of that religious community. There
is arguably one exception to this rule: in Lawyers for Human Rights and
Others v Minister of Home Affairs and Others,55 the Constitutional Court
held that where the matter relates to the constitutionality of a law, it
may proceed to decide the matter even though the party that has
brought the case does not have standing.56
 Although the Constitutional Court has adopted a generous
approach to standing, in Giant Concerts CC v Rinaldo Investments (Pty)
Ltd and Others, it held that this does not mean that litigants, and
especially own-interest litigants, have a broad and unqualified capacity
to litigate against illegalities.57 An own-interest litigant must still show
that he or she has a ‘sufficient interest’ in the relief he or she is applying
for.
In this case, the Constitutional Court held that when it comes to
deciding whether a litigant does have a sufficient own interest, a court
must assume that the act or decision being challenged is, in fact,
unlawful. This is because the question of standing is a point in limine
which has to be decided before the merits of the case. The merits of the
case, therefore, must be separated from the issue of standing.58
The separation of the merits of the case from the question of
standing, the Court held further, has two important consequences for
an own-interest litigant:
• First, simply because the act or decision being challenged is
unlawful does not mean that the applicant has legal standing. To
have standing, an applicant must also have a sufficient interest in
the lawfulness of the act or decision in question.59
• Second, if an own-interest litigant does not have a sufficient interest,
he or she will be denied legal standing even though the result could
be that an unlawful act or decision stands.60

When a litigant acts solely in his or her own interest, therefore, there is
no broad or unqualified capacity to litigate alleging that a right in the
Bill of Rights has been threatened or infringed. Something more must
be shown.61 How much more, the Court went on to hold, has been set
out in several of its previous judgments. Relying on precedent of
previous cases,62 the Constitutional Court in Giant Concerts, carefully
crafted a set of general principles pertaining to standing. These are as
follows:
• First, to establish own-interest standing under the Constitution a
litigant need not show the same ‘sufficient personal and direct
interest’ that the common law requires, but must still show that a
 contested law or decision directly affects his or her rights or
interests, or potential rights or interests.
• Second, this requirement must be broadly and generously
interpreted to accord with constitutional goals. It must, however, be
real and not hypothetical or academic.
• Third, even under the requirements for common law standing, the
interest need not be capable of monetary valuation, but in a
challenge to legislation purely financial self-interest may not be
enough – the interests of justice must also favour affording standing.
• Fourth, standing is not a technical or strictly defined concept, and
there is no magical formula for conferring it. It is a tool a court
employs to determine whether a litigant is entitled to claim its time,
and to put the opposing litigant to trouble.
• Last, each case depends on its own facts. There can be no general
rule covering all cases. In each case, an applicant must show that he
or she has the necessary interest in an infringement or a threatened
infringement.63

Apart from the requirements that must be satisfied when a person

approaches a court in his or her own interest, the Constitutional Court
has also considered the requirements a person must satisfy when he or
she approaches a court in the public interest. Guidelines on the
approach to be taken in public interest cases – not limited only to cases
involving violations of the Bill of Rights – have been elaborated by the
Supreme Court of Appeal and the Constitutional Court in several
important judgments.64
The first development emanating from these cases is that prior to
any class action litigation taking place, the person(s) intending to
represent the class is required to apply for ‘certification’ which is the
authority for the class action to be instituted.65 In addition, a list of
elements determining whether certification should be granted, include:
(i) the existence of a class identifiable by objective criteria;
(ii) a cause of action raising a triable issue;
(iii) that the right to relief depends upon the determination of issues
of fact, or law, or both, common to all members of the class;
 (iv) that the relief sought, or damages claimed, flow from the cause
of action and are ascertainable and capable of determination;
(v) that where the claim is for damages there is an appropriate
procedure for allocating the damages to the members of the
class;
(vi) that the proposed representative is suitable to be permitted to
conduct the action and represent the class; and
(vii) whether, given the composition of the class and the nature of
the proposed action, a class action is the most appropriate
means of determining the claims of class members.66

10.3.3 Who is bound by the rights in the Bill of Rights?

10.3.3.1 Introduction
Once a court has determined who can claim rights in terms of the Bill of
Rights, it has to ask a second question, namely against whom can these
rights be enforced. In other words, the court has to ask who is bound to
respect the rights claimed by either a natural or juristic person.
Although ‘everyone’ is entitled to claim the benefit of the rights (or at
least most of the rights) in the Bill of Rights, not everyone is bound by
every right contained in the Bill of Rights. This is because while the Bill
of Rights is always binding on the state, it is not always binding on
private persons.
When it comes to the question of who is bound by the Bill of Rights,
it is important to distinguish between the direct application of the Bill of
Rights and the indirect application of the Bill of Rights:
• When the Bill of Rights applies directly, the purpose is to determine
whether the ordinary rules of law (legislation, common law and
customary law) are consistent with the Bill of Rights. If they are not,
the Bill of Rights overrides the ordinary rules of law. When the Bill of
Rights applies directly, it also generates its own set of special
remedies, for example reading down or reading in.67
• When the Bill of Rights applies indirectly, the purpose is to
determine whether the ordinary rules of law promote the values of
 the Bill of Rights. If they do not, the Bill of Rights does not override
the ordinary law or generate its own special remedies. Instead, the
Bill of Rights is used to develop the rules and remedies of the
ordinary law so that the ‘objective normative value system’ that
permeates the Bill of Rights is given effect.68

Apart from distinguishing between the direct and indirect application of

the Bill of Rights, it is also important to distinguish between the vertical
application of the Bill of Rights and the horizontal application of the Bill
of Rights:
• When the Bill of Rights applies vertically, it confers rights on private
persons and imposes obligations on the state to respect, protect,
promote and fulfil the rights in the Bill of Rights. It does not impose
these obligations on private persons. In other words, when the Bill of
Rights applies vertically, only the state is bound by the Bill of Rights.
An important consequence of this approach is that the Bill of Rights
may be applied directly to a legal dispute only if one of the parties to
that dispute is the state. We refer to a dispute in which one of the
parties is the state as a vertical dispute.69
• When the Bill of Rights applies horizontally, it not only confers rights
on private persons, but also imposes obligations on them to respect
the rights in the Bill of Rights, at least in certain circumstances. In
other words, when the Bill of Rights applies horizontally, both the
state and private persons are bound by the Bill of Rights. An
important consequence of this approach is that the Bill of Rights
may be applied directly to a legal dispute even if both of the parties
to that dispute are private persons. We refer to a dispute in which
neither of the parties is the state as a horizontal dispute.70

In South Africa, unlike in most other constitutional democracies, the

Bill of Rights applies not only directly and indirectly, but also vertically
and sometimes horizontally. Section 8(1) of the Constitution governs
the direct vertical application of the Bill of Rights, while section 8(2)
governs the direct horizontal application. Section 39(2) of the
Constitution governs the indirect vertical and horizontal application of
the Bill of Rights.

When fundamental rights are abused by

private persons
In many constitutional democracies such as the United
States, the Bill of Rights applies only vertically and not
horizontally. This is because the state is considered to
be in a unique position to abuse or threaten the
fundamental rights of private persons since political or
state authority is vested in the state. This means that
the state is more powerful than private persons and
that the relationship between them is always an
unequal or vertical one.
Unfortunately, this argument overlooks the fact that
fundamental rights may be abused or threatened not
only by the state but also by private persons. This is
because even though none of the parties in a private
relationship can be said to have political or state
authority, it does not necessarily follow that the
relationship between private persons is always an
equal or horizontal one. Some private organisations –
for example, Google, Facebook, large banks, insurance
companies, and cellphone companies – wield
enormous power and can use this power to infringe the
rights of others. As a result of factors such as the free
market system and the privatisation of state functions,
it is quite clear that some private persons are more
powerful than others and could threaten the rights of
individuals.
Hutchinson, for example, argues that it is
corporations and not governments that pose the
greatest threat to individuals. This is because their
 actions influence almost every aspect of our day-to-day
lives and, consequently, we cannot avoid having to
interact with them at multiple levels and on multiple
occasions. He points out in this respect that the food
that is grown and made available to buy, the food we
choose to buy and put on our tables and the price we
are prepared to pay for that food are frequently
determined by the decisions taken by corporations and
the lifestyle preferences that they devise and
promote.71
Given that fundamental rights may be abused by
private persons, most constitutional scholars and
human rights activists have welcomed as a progressive
step the fact that the South African Bill of Rights ‘binds
a natural or a juristic person if, and to the extent that,
it is applicable’.72

10.3.3.2 The direct vertical application of the Bill of Rights

10.3.3.2.1 Introduction
Section 8(1) of the Constitution governs the direct vertical application
of the Bill of Rights. This section stipulates in unqualified terms that
‘[t]he Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state’.
Despite the fact that section 8(1) of the Constitution provides that
the Bill of Rights applies directly to ‘all law’, the Constitutional Court has
held that section 8(1) does not regulate the direct application of the Bill
of Rights to disputes between private persons that are governed by the
common law or customary law. This is because section 8(2) of the
Constitution regulates the direct application of the Bill of Rights to these
horizontal disputes as confirmed by the Constitutional Court in its
judgment in Khumalo and Others v Holomisa.73
For the same reasons, section 8(1) does not regulate the direct
application of the Bill of Rights to the judiciary when it is called on to
resolve a dispute between private parties that is governed by the
common law or customary law. This is because section 8(2) of the
Constitution also regulates the direct application of the Bill of Rights to
the judiciary in these horizontal disputes.74
The facts of the case of Khumalo v Holomisa were as follows. The
respondent, who was a prominent politician, sued the appellants, who
were the publishers of a newspaper, for defamation. The appellants,
however, raised an exception to the respondent’s claim. The exception
was that the common law rules of defamation infringed the
constitutional right to freedom of expression guaranteed in section 16 of
the Constitution because they did not impose an obligation on the
plaintiff to prove that the defamatory statements were false. Instead,
they imposed an obligation on the defendant to prove that they were
true.
The Constitutional Court dismissed the exception. In arriving at this
decision, however, the Constitutional Court had to answer a number of
questions. One of these was whether section 16 of the Constitution
applied directly to the dispute even though it was governed by the
common law and neither of the parties was an organ of state. To answer
this question, the Constitutional Court stated it had to deal with two
issues:
• First, whether section 8(1) or section 8(2) of the Constitution
governed the direct horizontal application of the Bill of Rights
• Second, if section 8(2) governed the direct horizontal application of
the Bill of Rights, whether section 16 satisfied the requirements of
section 8(2).75

In so far as the first issue was concerned, the Constitutional Court held
that section 8(2) and not section 8(1) governed the direct horizontal
application of the Bill of Rights. In arriving at its conclusion, the Court
began by noting that sections 8(1) and 8(2) of the Constitution
distinguish between two categories of persons and institutions bound
by the Bill of Rights. Section 8(1) binds the legislature, executive,
judiciary and all organs of state without qualification, while section 8(2)
provides that natural and juristic persons are bound by the provisions of
the Bill of Rights, but only ‘to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty imposed by
the right’.76
Once a court has determined that a natural person is bound by a
particular provision of the Bill of Rights, the Court noted further, section
8(3) of the Constitution provides that the court must apply and if
necessary develop the common law to the extent that legislation does
not give effect to the right. In addition, it also provides that the rules of
the common law may be developed so as to limit a right as long as the
limitation is consistent with the provisions of section 8(3)(b).77
If section 8(1) of the Constitution governed the direct application of
the Bill of Rights to a horizontal dispute, the Court went on to note, the
Bill of Rights would apply directly to horizontal disputes in all
circumstances and section 8(2) read together with section 8(3) would
have no purpose. To avoid such an absurd result, the direct application
of the Bill of Rights to horizontal disputes had to be governed by section
8(2) and not by section 8(1).78
In so far as the second issue was concerned, the Court noted that the
appellants were members of the media who were expressly identified as
bearers of constitutional rights to freedom of expression and that there
could be no doubt that the law of defamation does affect the right to
freedom of expression. The Court noted further:
Given the intensity of the constitutional right in question, coupled with the
potential invasion of that right which could be occasioned by persons other
than the state or organs of state, it is clear that the right to freedom of
expression is of direct horizontal application in this case as contemplated by
section 8(2) of the Constitution.79

Apart from these exceptions, section 8(1) of the Bill of Rights regulates
the direct application of the Bill of Rights:
• to disputes between the state and private parties that are governed
by legislation, the common law or customary law (‘all law’)
• to disputes between private parties that are governed by legislation,
but not by the common law or customary law.
An interpretation of the Khumalo judgment
Following the Constitutional Court’s judgment in
Khumalo, it seems to be fairly clear that section 8(2)
of the Constitution regulates the direct application of
the Bill of Rights to disputes between private parties
that are governed by the common law or customary
law. It is not entirely clear, however, whether section
8(1) or section 8(2) regulates the direct application of
the Bill of Rights to disputes between private parties
that are governed by legislation.
Although the judgment in Khumalo deals with the
common law of defamation, Woolman argues that the
Constitutional Court held, by implication, that section
8(2) regulates the direct application of the Bill of
Rights to disputes between private parties that are
governed not only by the common law or customary
law, but also by legislation. In other words, section
8(2) regulates the direct application of the Bill of
Rights to all disputes between private persons.80
If this interpretation of the judgment in Khumalo is
correct, he goes on to argue, then certain criticisms
may be levelled against it. Among these are the
following:
• First, it defers – and potentially suppresses – the
direct application of the Bill of Rights to disputes
between private parties, irrespective of whether the
dispute is governed by legislation, the common law
or customary law.81
• Second, less law is subject to the direct
application of the Bill of Rights under the Khumalo
Court’s reading of the Constitution than it was
under the Court’s reading of the interim
Constitution in Du Plessis and Others v De Klerk
and Another.82 This is because it was generally
 accepted that the Bill of Rights in the interim
Constitution did apply directly to disputes between
private persons governed by legislation.83
• Third, while the provisions of a statute or regulation
may not necessarily be subject to the direct
application of the Bill of Rights if the dispute was
between two private parties, they would
automatically be subject to the direct application
of the Bill of Rights if the dispute was between a
private party and the state. This distinction is
absurd because it infringes the doctrine of
objective unconstitutionality. This doctrine
provides, inter alia, that constitutional cases, and
thus the constitutionality of laws, cannot be
distinguished on the basis of the parties before the
court.84

Given the important obligations the Bill of Rights imposes on the bodies
and institutions that are bound by it, it is important to determine which
bodies and institutions fall within the scope of the terms ‘legislature’,
‘executive’, ‘judiciary’ and ‘all organs of state’. While the Constitution
itself defines what is meant by the term ‘organ of state’, it does not define
what is meant by the terms ‘legislature’, ‘executive’ and ‘judiciary’. This is
because the meaning of these terms may be discerned from the
provisions of the Constitution. Given that we have already discussed
what is meant by the terms ‘legislature’, ‘executive’ and ‘judiciary’ in
Part I of this book, we are only going to consider what is meant by the
term ‘organ of state’ here.

10.3.3.2.2 All organs of state

Section 8(1) of the Constitution states that the rights in the Bill of Rights
bind all organs of state. In so far as the term ‘organ of state’ is
concerned, section 239 of the Constitution provides that ‘organ of state’
means:
 any department of state or administration in the national, provincial or
(a)
local sphere of government; or
(b) any other functionary or institution–
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of
any legislation, but does not include a court or a judicial officer.

In terms of this definition, all organs of state may be divided into three
categories:
• First, any department of state or administration in the national,
provincial or local spheres of government
• Second, any functionary or institution exercising a power or
performing a function in terms of the Constitution or a provincial
constitution
• Third, any functionary or institution exercising a public power or
performing a public function in terms of any legislation.85

While it is usually easy to identify those bodies or institutions that fall

into the first two categories, it is not always easy to identify those bodies
or institutions that fall into the third category. This is because it is not
always clear whether a body or institution is exercising a public power
or performing a public function in terms of any legislation. Is the
University of Cape Town, for example, an organ of state? What about
state-owned companies such as Eskom, SAA or Telkom? What about
state institutions that have been privatised such as Iscor or, as it is called
today, ArcelorMittal South Africa Ltd?

Organs of state must act ethically in the

conduct of litigation
Du Plessis, Penfold and Brickhill emphasise that the
courts have routinely stated that ‘the commencement,
defence and conduct of litigation by the government or
its departments constitute the exercise of public
power’.86 Given that litigation relating to the Bill of
 Rights will invariably allege abuse of discretion
conferred by legislation on a representative of a
government department, or will argue that law is
unconstitutional, these are constitutional matters. In
particular, these types of matters ‘often involves the
human rights of vulnerable sections of society, and the
need to safeguard the rule of law’.87 Therefore, the
state’s limited resources should not be wasted by
unnecessarily defending litigation when the applicant’s
claim is unassailable. For example, in Centre for Child
Law and Others v MEC for Education, Gauteng and
Others88 the state was criticised for its ‘bureaucratic
prevarication’ that is directly opposed to the
maintenance of the public interest. It is also imperative
that the government provides the court with all of the
relevant evidence, consistent with its obligation to be
transparent and accountable. Increasingly, the
Constitutional Court has unambiguously disapproved
of the contempt with which state officials engage with
the Court by making adverse personal costs orders
against them.89

The manner in which a court should go about determining whether a

body or institution is exercising a public power or performing a public
function was considered by the SCA in Calibre Clinical Consultants
(Pty) Ltd and Another v National Bargaining Council for the Road
Freight Industry and Another.90
The facts of this case were as follows. In 2007, the respondent
decided to establish an antiretroviral programme for HIV-positive
employees in the road freight industry. The respondent, however, did
not want to manage and implement the programme itself and invited
interested parties to submit written proposals for the provision of these
services.
 The appellant submitted a written proposal and was then invited to
present its proposal to an interview panel. After the presentation, the
appellant was told that the respondent had decided in principle to
award it the tender, but that a due diligence review still had to be
performed.
Unfortunately, the due diligence review revealed a number of
problems with the appellant’s financial status. Following a long and
complicated process, during which the appellant attempted, but failed,
to address its financial problems, the respondent rejected the
appellant’s proposal and awarded the tender to another party.
The appellant then applied to the South Gauteng High Court:
Johannesburg for an order reviewing and setting aside the respondent’s
decision not to award the tender to it. It based its application on the
grounds that the respondent’s decision infringed the right to procedural
fairness guaranteed in PAJA.91
The High Court dismissed the application and the appellant then
appealed to the Supreme Court of Appeal, which also dismissed the
appeal. In arriving at this decision, the SCA began by pointing out that a
decision can be reviewed in terms of the PAJA only if it is administrative
action. A decision will be classified as administrative action if, inter alia,
it is made by an organ of state as defined in section 239 of the
Constitution.92
Given that the respondent was not ‘exercising a power or performing
a function in terms of the Constitution or a provincial constitution’,93 the
key question that had to be answered, therefore, was whether it was
‘exercising a public power or performing a public function in terms of
any legislation’.94
In so far as this question was concerned, the SCA observed that
while there is no single test to determine whether a power or function is
of a public nature, the courts both in South Africa and in comparable
foreign jurisdictions have usually taken into account the extent to which
the power or function may be described as ‘governmental’ in nature.
The more governmental in nature a power or function is, therefore, the
more it may be said to be public in nature.95
The sorts of factors that courts will take into account to determine
whether a power or function is of a public nature include the extent to
which the powers or functions are ‘woven into a system of
governmental control’, or are ‘integrated into a system of statutory
regulation’, or are regulated, supervised and inspected by government,
or are ‘linked to the functions and powers of government’, or are
‘publicly funded’ and so on.96
This approach, the SCA observed further, is a useful one because it
asks whether the person or body which is exercising the power or
performing the function is accountable to the public for the way in
which the person or body has exercised the power or performed the
function. It is about accountability to those with whom the functionary
or body has no special relationship other than that they are affected by
its conduct. The question in each case will be whether the person or
body can properly be said to be accountable, notwithstanding the
absence of any such special relationship.97
After setting out these principles, the SCA turned to apply them to
the facts. In this respect, the Court found that even though the Labour
Relations Act98 regulates the establishment and powers of bargaining
councils, they are essentially voluntary associations created by
agreement to perform functions in the interests and for the benefit of
their members. It follows, therefore, that they are not accountable to the
public for the procurement of services for projects that are
implemented for the benefit of their members. Consequently,
bargaining councils cannot be said to be exercising public powers or
performing public functions.99
In light of this judgment it can be said that the exercise of a power or
the performance of a function may be classified as public if the body or
institution that has exercised the power or performed the function is
accountable to the public for the manner in which it has exercised that
power or performed that function.

10.3.3.3 The direct horizontal application of the Bill of Rights

While section 8(1) of the Constitution governs the direct vertical
application of the Bill of Rights, section 8(2) governs the direct
horizontal application of the Bill of Rights. Section 8(2) provides in this
respect that ‘[a] provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into account the
nature of the right and the nature of any duty imposed by the right’.

The Bill of Rights in the interim Constitution

did not apply directly to horizontal disputes
The fact that the Bill of Rights may be applied directly
to a horizontal dispute if the requirements of section
8(2) have been satisfied is one of the most significant
differences between the Constitution and the interim
Constitution. The application of the Bill of Rights in the
interim Constitution was regulated by section 7 which
simply stated that ‘[the Bill of Rights] shall bind all
legislative and executive organs of state at all levels of
government’.
In Du Plessis and Others v De Klerk and Another,
100
the Constitutional Court held that the fact that
section 7 did not refer to ‘all law’ and ‘the judiciary’
meant that the Bill of Rights in the interim Constitution
did not apply directly to horizontal disputes. It only
applied directly to vertical disputes.101
In light of this judgment and in an attempt to
ensure that the Bill of Rights in the Constitution would
apply directly to horizontal disputes, the Constitutional
Assembly made two important changes:
• First, it added the words ‘all law’ and ‘the judiciary’
to the application clause. Section 8(1) thus
provides that ‘[t]he Bill of Rights applies to all law
and binds the legislature, the executive, the
judiciary and all organs of state’.
• Second, it added an entirely new clause imposing
an obligation to apply the Bill of Rights directly to
horizontal disputes, at least in some cases.
Section 8(2) thus provides that ‘[a] provision of
the Bill of Rights binds a natural or a juristic
 person if, and to the extent that, it is applicable,
taking into account the nature of the right and the
nature of any duty imposed by the right’.

Unlike section 8(1) of the Constitution, which is not subject to any

qualifications, section 8(2) is subject to an important qualification,
namely that a fundamental right only applies directly to a horizontal
relation ‘if, and to the extent that, it is applicable, taking into account
the nature of the right and the nature of any duty imposed by the right’.
Since the Bill of Rights does not apply directly to every horizontal
dispute, but only to those in which ‘it is applicable, taking into account
the nature of the right and the nature of the duty imposed by the right’, it
is important to know what these words mean. Unfortunately, it is not
easy to say exactly what they mean. This is partly because they are quite
vague and partly because the Constitutional Court has only considered
section 8(2) in two cases, namely Khumalo and Governing Body of the
Juma Musjid Primary School & Others v Essay NO and Others.102
The Constitutional Court’s judgment in Juma Musjid does, however,
does provide us with some useful guidelines on the manner in which
section 8(2) should be interpreted and applied. In this case, the Court
had to determine whether the right to a basic education guaranteed in
section 29(1) of the Constitution applied directly to the common law
principles governing evictions, despite the fact that none of the parties
was the state or an organ of state.
The Constitutional Court found that it did. In arriving at this
decision, the Court began by stating that when it comes to determining
whether a right in the Bill of Rights applies directly to a horizontal
dispute governed by the common law, a court must take into account
the purpose of section 8(2). This purpose ‘is not to obstruct private
autonomy or to impose on a private party the duties of the state in
protecting the Bill of Rights. It is rather to require private parties not to
interfere with or diminish the enjoyment of a right’.103
Apart from the purpose of section 8(2) of the Constitution, the Court
stated further that when it comes to determining whether a right in the
Bill of Rights applies directly to a horizontal dispute governed by the
common law, a court must also take into account the factors
highlighted in Khumalo, namely ‘the intensity of the constitutional right
in question, coupled with the potential invasion of that right which
could be occasioned by persons other than the State or organs of
State’.104
Given these principles, the Court went on to state, it may be said
that the right to a basic education does apply directly to a horizontal
dispute governed by the common law, but only in the sense that it
imposes a negative obligation on private parties not to use their
common law powers to interfere with or diminish the enjoyment of that
right. It does not impose a positive obligation on private parties to take
steps to provide basic education to learners.105
In light of this judgment, the following points may be made:
• First, the courts may not interpret section 8(2) of the Constitution in
a manner that imposes positive socio-economic obligations directly
on natural or juristic persons.
• Second, the courts may interpret section 8(2) of the Constitution in a
manner that does impose at least some negative socio-economic
obligations directly on natural or juristic persons.
• Third, to determine which socio-economic negative obligations
section 8(2) of the Constitution imposes directly on natural or
juristic persons, the courts must take into account the ‘intensity of
the constitutional right in question’ and the extent to which the right
could potentially be invaded by persons other than the state or
organs of the state.106 Unfortunately, it is not entirely clear what is
meant by the ‘intensity of the constitutional right in question’.107

10.3.3.4 The indirect application of the Bill of Rights

10.3.3.4.1 Introduction
In some cases the Bill of Rights will not apply directly to law and a court
will not be asked to measure the law against the specific right and then
to declare invalid the provision of the law. Instead, the Bill of Rights will
indirectly influence the way in which the court interprets the law, but
they will not declare the law unconstitutional. While sections 8(1) and
8(2) of the Constitution govern the direct vertical and horizontal
application of the Bill of Rights, section 39(2) of the Constitution
governs the indirect vertical and horizontal application of the Bill of
Rights. Section 39(2) provides that ‘[w]hen interpreting any legislation,
and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights’.
When the Bill of Rights applies indirectly, the relationship between
the Bill of Rights and the ordinary law is not governed by the principles
and rules set out in the Bill of Rights. Instead, it is governed by the
principles and rules set out in the ordinary law (legislation, common
law and customary law). The manner in which the courts interpret
legislation or develop the common law and customary law, however,
must promote the values in the Bill of Rights.
Unlike the direct application of the Bill of Rights, therefore, the
indirect application of the Bill of Rights is not based on an enquiry as to
whether the law is in direct conflict with an identifiable right. Instead,
the court has to invoke the values that underlie the Bill of Rights and ask
whether it should interpret or develop the law to bring it in line with
these values.

The Constitutional Court has now rejected the

principle of avoidance or subsidiarity
Section 39(2) of the Constitution does not specify
when the courts should apply the Bill of Rights
indirectly in terms of section 39(2) rather than directly
in terms of section 8(1) and (2). However, the
Constitutional Court has previously stated on a number
of occasions that where it is possible to decide a case
without applying the Bill of Rights directly, then this is
the approach the courts should adopt.108 This
approach is referred to as the principle of avoidance or
the principle of subsidiarity.
In practice, this approach means that when a court
is confronted with a statutory provision, it should first
attempt to interpret the provision in accordance with
the values that underlie the Bill of Rights before it tests
the validity of the provision against a specific provision
of the Bill of Rights. Similarly, when a court is
confronted with a common or customary law rule, it
should first attempt to develop the rule in accordance
with the values underlying the Bill of Rights before it
tests the validity of the rule against a specific provision
of the Bill of Rights.
Over the years the Constitutional Court watered
down the principle of avoidance first established in S v
Mhlungu and Others. Eventually in 2017 it explicitly
overturned the principle of avoidance established in
the Mhlungu judgment, holding that courts should not
try to avoid applying the Bill of Rights. The Court did
this in the case of Jordaan and Others v City of
Tshwane Metropolitan Municipality and Others; City of
Tshwane Metropolitan Municipality v New Ventures
Consulting and Services (Pty) Limited and Others;
Ekurhuleni Metropolitan Municipality v Livanos and
Others.109 In this case, the Ekurhuleni Municipality
argued that the Constitutional Court should refuse to
consider the constitutional question raised by the other
parties because the relevant issues could be
determined without invoking the Constitution. Justice
Cameron held that Mhlungu ‘should be set in its
proper perspective’ and pointed out that it was
decided under the interim Constitution, where the
Constitutional Court had solely constitutional
jurisdiction, and the Supreme Court of Appeal had
solely non-constitutional jurisdiction. This required the
 Constitutional Court to take a more cautious approach
in order to respect the jurisdiction of other courts.110
The Court then continued:
The result is that under the final Constitution the approach
Mhlungu espoused has long since been abandoned in favour of
its opposite, namely that constitutional approaches to rights
determination must generally enjoy primacy. Far from avoiding
constitutional issues whenever possible, this Court has
emphasised that virtually all issues – including the interpretation
and application of legislation and the development and
application of the common law – are, ultimately, constitutional.
This affects how to approach them from the outset.111

The judgment affirms the central role of the

Constitution in adjudication and opens up new
avenues for litigants to explore in arguments before the
courts. It is now possible to advance constitutional
arguments in cases that deal with parts of the law that
would previously have been considered to have nothing
to do with the Constitution. Whether a case deals with
contract law, the law of delict, criminal law, company or
family law, the first question that must now be asked is
whether the Constitution, and specifically the
provisions of the Bill of Rights, may have some bearing
on the interpretation and application of the applicable
law. In each case where legislation is interpreted or
when the common law and customary law is applied or
developed, the court will have to consider whether the
interpretation of legislation or the development of the
common law or customary law promotes the spirit,
purport and objects of the Bill of Rights.112 This is a
matter of indirect application of the Bill of Rights
discussed in the section that follows.

10.3.3.4.2 The indirect application of the Bill of Rights to legislation

Section 39(2) of the Constitution governs the indirect application of the
Bill of Rights to legislation. This section provides that ‘when interpreting
any legislation … every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights’. To achieve this objective, the
courts have held that section 39(2) of the Constitution imposes an
obligation on judicial officers to examine the objects and purport of an
Act and to read the provisions of legislation, so far as possible, ‘in
conformity’ with the Bill of Rights.113
The principle of reading in conformity with the Bill of Rights means
that the courts must prefer interpretations that fall within the
boundaries of the Bill of Rights over those that do not, provided that
such an interpretation can be reasonably ascribed to the section.114 The
process of interpreting legislation in conformity with the Bill of Rights,
therefore, is limited to what the texts of the provisions in question are
reasonably capable of meaning.115 The interpretation ‘must not be
fanciful or far-fetched but one that reasonably arises from the
challenged text without unwarranted strain, distortion or violence to
the language’.116
The application of these principles and rules, however, is subject to
certain limits. On the one hand, it is the duty of the judicial officer to
interpret legislation in conformity with the Constitution so far as this is
reasonably possible. On the other hand, the legislature is under a duty
to pass legislation that is reasonably clear and precise, enabling citizens
and officials to understand what is expected of them.117
A balance will have to be struck, therefore, to resolve this tension.
There will be occasions when a judicial officer will find that the
legislation, although open to a meaning which would be
unconstitutional, is reasonably capable of being read ‘in conformity
with the Constitution’.118 Such an interpretation should not, however, be
unduly strained.119

Benefits and drawbacks of an expansive

approach to the principle of reading in
conformity with the Bill of Rights
In some cases the Constitutional Court has adopted an
expansive approach to the principle of reading in
conformity with the Bill of Rights and has strayed quite
far from the actual words used in a statutory provision
in order to give it a constitutional meaning.
In Bertie Van Zyl (Pty) Ltd and Another v Minister
for Safety and Security and Others,120 for example, the
applicant applied for an order declaring section 20(1)
(a) of the Private Security Industry Regulation Act121
read together with section 1(a) of the Act to be
unconstitutional and invalid on the grounds that it was
overbroad or vague.
Section 20(1)(a) provided that ‘[n]o person,
except a security service contemplated in section 199
of the Constitution … may in any manner render a
security service for remuneration, reward, a fee or
benefit, unless such a person is registered as a
security service provider in terms of this Act’ and
section 1(a) that ‘security service means … protecting
or safeguarding a person or property in any manner’.
Section 20(1)(a) of the Act when read together
with section 1(a) was overbroad, the applicant argued,
because it applied not only to people who provided
security services in the true sense, but also to
countless other people, including, for example,
childminders, doctors and teachers, all of whom
protect and safeguard people in the course of their
work.
A majority of the Constitutional Court rejected this
argument. In arriving at this decision the Court held
that the words ‘security service’ in section 1(a) must
be read down to mean ‘the protection or safeguarding
of persons or property from unlawful physical harm,
including injury, physical damage, theft, or kidnapping
caused by another person. This must be so because
the security of person[s] and property is central to
what the Act aims to protect … [T]he Act is not
intended to regulate the response to hazards from
nature or harm from animals’.122
To uphold the constitutional validity of section
20(1)(a), therefore, the majority of the Constitutional
Court essentially rewrote section 1(a) by cutting the
words ‘in any manner’ from the section and adding the
words ‘from unlawful physical harm, including injury,
physical damage, theft, or kidnapping caused by
another person’ to it.
As Bishop and Brickhill have pointed out, this
expansive approach has both advantages and
disadvantages. On the one hand, ‘it allows courts to
avoid declaring legislation unconstitutional and thus, in
some sense at least, respect the separation of powers.
It also avoids the recurrent difficulties and delays that
often follow declarations of invalidity until new
legislation is passed’.123 On the other hand,
‘government officials who have to apply the section will
not be able to tell from reading it what its proper
meaning is. They will have to know about (and read)
the court decision in order to do their jobs’.124 In
addition, they point out further:
because High Court interpretations that avoid a finding of
unconstitutionality need not be confirmed by the Constitutional
Court, they will occasion much greater uncertainty than
declarations of invalidity. It is also possible that different High
Courts may reach different interpretations, none of which could
be ascertained merely by reading the section.125

Finally, they conclude:

the supposed separation of powers benefits that accrued through
interpretation are largely illusory, as the degree of interference in
the legislature’s sphere of operation occasioned by interpretations
that exceed the ordinary meaning of the words is the same as an
 order of invalidity accompanied by orders of reading in or
severance. The Constitutional Court has developed a detailed
jurisprudence about how to accommodate separation of powers
concerns when making those orders, a jurisprudence that seems
to be largely ignored in the current approach to interpretation.
This massive power in effect permits courts – and not only the
Constitutional Court – to legislate about what the legislation is
meant to achieve.126

10.3.3.4.3 The indirect application of the Bill of Rights to the

common law and customary law
Section 39(2) of the Constitution also governs the indirect application of
the Bill of Rights to the common law and customary law.127 This section
provides that ‘when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights’.
The Constitutional Court has considered the circumstances in
which the courts must develop the common law on a number of
occasions.128 In these cases, the Court has held that while the courts are
under a general obligation to develop the common law, they do not
have to carry out this exercise in each and every case that comes before
them.
In Carmichele v Minister of Safety and Security, for example, the
Constitutional Court held that:
the obligation of courts to develop the common law, in the context of the
section 39(2) objectives, is not purely discretionary. On the contrary, it is
implicit in section 39(2) read with section 173 that where the common law as it
stands is deficient in promoting the section 39(2) objectives, the courts are
under a general obligation to develop it appropriately.129

This general obligation, the Court held further, does not mean:
that a court must, in each and every case where the common law is involved,
embark on an independent exercise as to whether the common law is in need
of development and, if so, how it is to be developed under section 39(2). At the
same time there might be circumstances where a court is obliged to raise the
matter on its own and require full argument from the parties.130
The obligation imposed on the courts to develop the common law,
therefore, is an extensive one. It requires the courts to be alert to the
normative framework of the Constitution not only when some startling
new development of the common law is in issue, but in all cases where
the incremental development of the rule is in issue.131

Differing interpretations of section 39(2)

There has been considerable academic debate about
the nature of the horizontal application of the Bill of
Rights and whether the courts are obliged to develop
the common law in each case or not.132 Anton Fagan
argues that contrary to decisions of the Constitutional
Court in Carmichele, the Constitution does not regard
the spirit, purport and objects of the Bill of Rights as
providing an independent reason for developing the
common law. According to Fagan, the phrase, ‘spirit,
purport and objects of the Bill of Rights’, as contained
in section 39(2) of the Constitution, constitutes a set
of reasons for choosing between different ways of
developing the common law. However, this choice can
only be made after adopting a prior decision based on
an independent reason for developing the common
law. There is a distinction to be drawn between a
justification provided by a constitutionally entrenched
right and one provided by the objects of the Bill of
Rights. The wording of section 39(2) does not imply an
obligation to develop the common law. If there is an
obligation to develop the common law, it must be
found in independent reasons; that is, reasons other
than those sourced in the objects of the Bill of Rights.
Dennis Davis took issue with this line of reasoning,
arguing that the interpretation was too formalistic, that
it ‘ignores the intricacies of adjudication and its
relationship to justice’133 and continues:
 On this line of argument, the demands of a post constitutional
jurisprudence require a re-examination of legal thinking, a deep
reflection on the consequences of the past in order that we do not
reproduce its shibboleths, but rather its reflective power, in order
in turn to meet the conception of justice which is set out in the
Constitution, in the form of a normative framework for a future
South Africa. In other words, the Constitution, read as a whole,
provides a concept of justice which, if implemented, would result
in the attainment of a journey from apartheid to the democratic
society envisaged in the Constitution. Admittedly, this is a difficult
task and not one that is met easily by way of a grand narrative
which can be grasped immediately.134

In essence, Davis argues that in order for the

Constitution to play its role in transforming the private
law, section 39(2) requires the courts to develop the
common law in each case to bring it in line with the
spirit, purport and objects of the Bill of Rights. An
argument that limits the ability of the courts to do so is
therefore essentially in opposition to the
transformation of the private law in accordance with
the precepts of justice. The decision of the
Constitutional Court to overturn the principle of
avoidance (as discussed above) in Jordaan and Others
v City of Tshwane Metropolitan Municipality and
Others; and to confirm that ‘virtually all issues –
including the interpretation and application of
legislation and the development and application of the
common law – are, ultimately, constitutional’135 gives
credence to the argument advanced by Davis.

Apart from the circumstances in which the courts are obliged to

develop the common law, the Constitutional Court has also dealt with
the manner in which the courts must carry out this exercise. In Thebus
and Another v S, for example, the Court held that the Constitution
embodies an ‘objective normative value system’.136 It is within the matrix
of this objective normative value system that the common law must be
developed. This means, the Court held further, that ‘under section 39(2)
of the Constitution, concepts which are reflective of, or premised upon,
a given value system “might well have to be replaced, or supplemented
and enriched by the appropriate norms of the objective value system
embodied in the Constitution”’.137
After making these points, the Court went on to explain that the
need to develop the common law under section 39(2) of the
Constitution could arise in two circumstances:
The first would be when a rule of the common law is inconsistent with a
constitutional provision. Repugnancy of this kind would compel an adaptation
of the common law to resolve the inconsistency. The second possibility arises
even when a rule of the common law is not inconsistent with a specific
constitutional provision but may fall short of its spirit, purport and objects.
Then, the common law must be adapted so that it grows in harmony with the
“objective normative value system” found in the Constitution.138

In those cases in which a common law rule is alleged to be inconsistent

with a constitutional provision, a court is obliged to carry out a two-
stage enquiry. First, it must determine whether or not the common law
rule does in fact limit an entrenched right. If it does, the court must
move onto the second stage and determine whether the limitation is
reasonable and justifiable. If the limitation is not reasonable and
justifiable, the court itself is obliged to adapt or develop the common
law rule in order to harmonise it with the constitutional norm.139
In those cases in which a common law rule falls short of the spirit,
purport and objects of the Bill of Rights, a court is also obliged to
undertake a two-stage enquiry. First, it must ask whether, given the
objectives of section 39(2) of the Constitution, the common law should
be developed beyond existing precedent. If the answer to this question
is a negative one, then this should be the end of the enquiry. If the
answer is a positive one, the court must move on to the second stage of
the enquiry. At this stage the court must ask how the development
should occur and which court should embark on this exercise.140
In K v Minister of Safety and Security,141 the Constitutional Court also
set out some of the ways in which the common law can be developed.
In this respect, the Court stated that the common law can be developed
by, for example, introducing a new rule or significantly changing an
existing one. It can also be developed by extending the ambit of a rule to
include a new set of facts or limiting the ambit to exclude those facts.142

The development of customary law

The indirect application of the Bill of Rights, which
leads to the development of the law, is often thought of
only in terms of the development of the common law.
As section 39 clearly states, however, it is not only the
common law that must be developed but also
customary law. In Mayelane v Ngwenyama and
Another, the Constitutional Court summarised its
approach to the development of customary law as
follows:
This Court has, in a number of decisions, explained what this
resurrection of customary law to its rightful place as one of the
primary sources of law under the Constitution means. This
includes that:

a) customary law must be understood in its own terms, and

not through the lens of the common law;
b) so understood, customary law is nevertheless subject to
the Constitution and has to be interpreted in the light of its
values;
c) customary law is a system of law that is practised in the
community, has its own values and norms, is practised
from generation to generation and evolves and develops to
meet the changing needs of the community;
d) customary law is not a fixed body of formally classified and
easily ascertainable rules. By its very nature it evolves as
the people who live by its norms change their patterns of
life;
e) customary law will continue to evolve within the context of
its values and norms consistently, with the Constitution;
f) the inherent flexibility of customary law provides room for
consensus-seeking and the prevention and resolution, in
family and clan meetings, of disputes and disagreements;
and
g) these aspects provide a setting which contributes to the
unity of family structures and the fostering of co-operation,
a sense of responsibility and belonging in its members, as
 well as the nurturing of healthy communitarian traditions
like ubuntu.143

The significance of ubuntu for the development of

South Africa’s constitutional system has been
expressed in a number of cases decided by the
Constitutional Court. In Dikoko v Mokhatla,144 the Court
described ubuntu as ‘foundational to the spirit of
reconciliation and bridge-building that enabled our
deeply traumatised society to overcome and transcend
the divisions of the past’.145 Likewise, in Port Elizabeth
Municipality,146 the Court held that ‘the spirit of
ubuntu, part of a deep cultural heritage of the majority
of the population, suffuses the whole constitutional
order’.147 As Patel remarks: the contribution of
indigenous knowledge systems to theories of self-
determination, education and survival is crucial in
eradicating the grip of colonialism.148 Guiding this
process is the National Development Plan 2030
emphasising South Africa’s ‘emerging identity, ethics,
morality, indigenous systems, struggle for liberation,
the Constitution, and the creation of a non-racial
society’.149

SUMMARY

This chapter deals with some of the technical questions relating to Bill
of Rights litigation. The application of the Bill of Rights gives rise to a
number of difficult questions. The two most important, however, are
who is entitled to claim the right in question and who is bound by the
right in question?
The rights guaranteed in the Bill of Rights may be claimed by both
natural and, in certain circumstances, juristic persons. In so far as
natural persons are concerned, the majority of rights state that they can
be claimed by ‘everyone’. The use of the word ‘everyone’ refers to South
African citizens as well as any other person who is physically present in
the country, irrespective of whether they are here legally or illegally.
Although the majority of rights state that they can be claimed by
‘everyone’, certain rights state that they may be claimed only by a
narrower category of natural persons, for example citizens, children or
detained persons. These rights may be claimed only by those natural
persons who fall into the definition of the relevant category.
In so far as juristic persons are concerned, section 8(4) of the
Constitution provides that ‘[a] juristic person is entitled to the rights in
the Bill of Rights to the extent required by the nature of the rights and
the nature of that juristic person’. To determine whether a juristic
person can claim a particular right, therefore, two factors must be taken
into account: whether the juristic person is capable of exercising the
right in question and whether the juristic person is entitled to exercise
the right in question.
Once a court has determined who can claim rights in terms of the
Bill of Rights, it has to ask a second question, namely, against whom can
these rights be claimed? In other words, the court has to ask who is
bound to respect the rights claimed by either a natural or juristic
person. Although ‘everyone’ is entitled to claim the benefit of the rights
(or at least most of the rights) in the Bill of Rights, not everyone is bound
by every right contained in the Bill of Rights. This is because while the
Bill of Rights is always binding on the state, it is not always binding on
private persons.
When it comes to the question of who is bound by the Bill of Rights,
it is important to distinguish between the direct application of the Bill of
Rights and the indirect application of the Bill of Rights as well as
between the vertical and horizontal application of the Bill of Rights. This
is because in South Africa the Bill of Rights applies not only directly and
indirectly, but also vertically and sometimes horizontally. Section 8(1)
of the Constitution governs the direct vertical application of the Bill of
Rights while section 8(2) governs the direct horizontal application.
Section 39(2) of the Constitution governs the indirect vertical and
horizontal application of the Bill of Rights.
 These rights were selected based first, on their general importance and second, on whether
1
these rights are likely to be studied by students in other LLB courses. Provisions dealing
with a fair trial, administrative justice and family law are therefore not discussed in this
book.
2 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 24.
3 See ch 6 (Separation of powers and judicial authority) where the courts possessing
constitutional jurisdiction are discussed.
4 Currie and De Waal (2013) 26.
5 Currie and De Waal (2013) 26–7.
6 Freedman, DW ‘Constitutional law: Bill of Rights’ in Joubert, WA (ed) (2012) Law of South
Africa 2nd ed Vol 5 Part 4 para 2.
7 United Nations (1996) International Covenant on Civil and Political Rights available at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
8 United Nations (1996) International Covenant on Economic, Social and Cultural Rights
available at
http://www.ohchr.org/en/professionalinterest/pages/CESCR.aspx.
9 Dlamini, CRM (1995) Human Rights in Africa: Which way South Africa? 5–6.
10 Dlamini (1995) 5–6.
11 Viljoen, F (2012) International Human Rights Law in Africa 2nd ed 5.
12 Du Plessis, LM (1999) An Introduction to Law 3rd ed 168–9.
13 Du Plessis (1999) 168–9.
14 Du Plessis (1999) 168–9.
15 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) paras 77–8
(First Certification) where the Court held that socio-economic rights are no less justiciable
than civil and political right, nor would a court adjudicating on them necessarily lead to a
breach of the separation of powers. See also Islamic Unity Convention v Independent
Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5)
BCLR 433 (11 April 2002); and S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409
(CC); 2001 (5) BCLR 449 (CC) (11 April 2001) para 41 where the Court held that ‘the right to
freedom of expression cannot be said automatically to trump the right to human dignity.
The right to dignity is at least as worthy of protection as is the right to freedom of
expression. How these two rights are to be balanced, in principle and in any particular set
of circumstances, is not a question that can or should be addressed here. What is clear
though and must be stated, is that freedom of expression does not enjoy superior status in
our law.’ [footnote omitted]
16 See Currie and De Waal (2013) 24 and 29.
17 Du Plessis M, Penfold G and Brickhill J (2013) Constitutional Litigation 9 and 19.
18 Du Plessis, Penfold and Brickhill (2013) 107.
19 Du Plessis, Penfold and Brickhill (2013) 20.
20 Ss 19, 20 and 22 of the Constitution.
21 S 28 of the Constitution.
22 S 35 of the Constitution.
23 In law, a natural person is a human being as opposed to a juristic person which may be a
private (business entity) or public (government) organisation.
24 A juristic person is an artificial entity through which the law allows a group of natural
persons to act as if it were a single composite individual for certain purposes. This legal
fiction does not mean these entities are human beings, but rather that the law recognises
them as having legal personality and allows them to act as natural persons for some
purposes, most commonly in lawsuits, property ownership and contracts. For example, a
company or a club will act as a juristic person.
25 FNM v The Refugee Appeal Board and Others (71738/2016) [2018] ZAGPPHC 532; [2018] 4
All SA 228 (GP); 2019 (1) SA 468 (GP) (12 July 2018); Minister of Home Affairs and Others v
Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All SA 21 (SCA) (28
November 2003); Tantoush v Refugee Appeal Board and Others (13182/06) [2007] ZAGPHC
191; 2008 (1) SA 232 (T) (11 September 2007).
26 Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505
(CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 47.
27 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (7 June 2000)
para 37.
28 Lawyers for Human Rights and Others v Minister of Home Affairs and Others (CCT 18/03)
[2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) para 27.
29 Christian Lawyers Association of SA v Minister of Health 1998 (11) BCLR 1434 (T) 1441.
30 Christian Lawyers Association 1441.
31 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
32 South African National Defence Union para 23.
33 South African National Defence Union para 26.
34 National Society for the Prevention of Cruelty to Animals v Minister of Justice and
Constitutional Development and Another (29677/2013) [2014] ZAGPPHC 763 (8 October
2014) para 20.
35 First Certification paras 57–8.
36 Religious rights and their manifestation in one’s ‘religious and cultural identity’ were in
issue in the case of MEC for Education: KwaZulu-Natal and Others v Pillay (CCT 51/06)
[2007] ZACC 21; 2008 (1) 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007). See para 85 in
particular.
37 Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park 2009 (4) SA 510 (T).
38 Strydom para 23.
39 Strydom para 37.
40 (CCT254/16) [2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC) (14 November
2017).
41 Act 3 of 2000.
42 State Information Technology para 18.
43 State Information Technology para 25.
44 State Information Technology para 26.
45 State Information Technology para 27.
46 State Information Technology para 27.
47 See Chapter 11 (Constitutional Remedies).
48 Child, K (28 November 2018) Listeriosis class-action lawsuit one step closer Times Live
available at https://www.timeslive.co.za/news/south-africa/2018-11-28-listeriosis-class-
action-lawsuit-one-step-closer/.
49 Independent Electoral Commission v Langeberg Municipality (CCT 49/00) [2001] ZACC 23;
2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June 2001) para 15.
50 See, for example, Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December
1995); Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v
Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003
(5) SA 281 (CC) (27 June 2003); Kruger v President of the Republic of South Africa and Others
(CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October
2008); Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd
and Another (CCT 34/10) [2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC) (23
November 2010); Tulip Diamonds FZE v Minister for Justice and Constitutional
Development and Others (CCT 93/12) [2013] ZACC 19; 2013 (10) BCLR 1180 (CC); 2013 (2)
SACR 443 (CC) (13 June 2013).
51 Kruger para 21.
52 Kruger para 90.
53 See Currie and De Waal (2013) 77.
54 Currie and De Waal (2013) 77.
55 2004 (4) SA 125 (CC).
56 Lawyers for Human Rights para 24.
57 (CCT 25/12) [2012] ZACC 28; 2013 (3) BCLR 251 (CC) (29 November 2012) para 23.
58 Giant Concerts para 32.
59 Giant Concerts para 33.
60 Giant Concerts para 34.
61 Giant Concerts para 35.
62 See especially Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) (6 December
1995); Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v
Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (5) SA 281 (CC); 2003
(8) BCLR 838 (CC) (27 June 2003); and Kruger v President of the Republic of South Africa
and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2
October 2008).
63 Giant Concerts para 41.
64 See specifically Trustees for the time being of the Children’s Resource Centre Trust and Others
v Pioneer Foods (Pty) Ltd and Others (050/2012) [2012] ZASCA 182; 2013 (2) SA 213 (SCA);
2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA) (29 November 2012); and Mukaddam v
Pioneer Foods (Pty) Ltd and Others (CCT 131/12) [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013
(10) BCLR 1135 (CC) (27 June 2013).
65 Mukaddam paras 23–5.
66 The Trustees for the Time Being para 26.
67 Du Plessis, Penfold and Brickhill (2013) 113. See Chapter 12 on Constitutional Remedies for
an in-depth discussion of these remedies.
68 A particularly relevant case in this regard is Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening) (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938
 (CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 54.
69 Currie and De Waal (2013) 41.
70 Currie and De Waal (2013) 41.
71 See Hutchinson, AC (1990) Mice under a chair: Democracy, courts and the administrative
state University of Toronto Law Journal 40(3):374–404 at 379–80.
72 S 8(2).
73 Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002
(8) BCLR 771 (CC) (14 June 2002) para 31. S 8(2) of the Constitution stipulates that ‘[a]
provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it
is applicable, taking into account the nature of the right and the nature of any duty imposed
by the right’. S 8(3) goes on to stipulate that ‘[w]hen applying a provision of the Bill of Rights
to a natural or juristic person in terms of subsection (2), a court: (a) in order to give effect to
a right in the Bill, must apply, or if necessary develop, the common law to the extent that
legislation does not give effect to that right; and (b) may develop rules of the common law
to limit the right, provided that the limitation is in accordance with section 36(1)’.
74 Khumalo para 31.
75 Khumalo paras 30–4.
76 Khumalo para 31.
77 Khumalo para 31.
78 Khumalo para 32.
79 Khumalo para 33.
80 See Woolman, S ‘Application’ in Woolman, S and Bishop, M (eds) (2013) Constitutional
Law of South Africa 2nd ed rev service 5 31.6.
81 Woolman (2013) 31.7.
82 (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC) (15 May 1996).
83 Woolman (2013) 31.8.
84 Woolman (2013) 31.8.
85 Freedman (2012) para 7.
86 Du Plessis M, Penfold G and Brickhill J (2013) Constitutional Litigation 3.
87 Du Plessis, Penfold and Brickhill 7.
88 2008 (1) SA 223 (T) 225G–226A.
89 Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC
Intervening) (CCT48/17) [2017] ZACC 20; 2017 (9) BCLR 1089 (CC) (15 June 2017) (Black
Sash 2) para 24(1), where Minister Bathabile Dlamini was joined in her personal capacity to
account for the failures to ensure that a new contract was entered into for the payment of
social welfare grants (discussed more fully in ch 11).
90 (410/09) [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July 2010).
91 Act 3 of 2000.
92 Calibre Clinical Consultants para 20.
93 S 239(b)(i) of the Constitution.
94 S 239(b)(ii) of the Constitution; Calibre Clinical Consultants para 19.
95 Calibre Clinical Consultants para 24.
96 Calibre Clinical Consultants para 38.
97 Calibre Clinical Consultants para 40.
98 Act 66 of 1995.
99 Calibre Clinical Consultants para 41.
100 (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 568 (CC) (15 May 1996).
101 Du Plessis para 129. Although the Bill of Rights in the interim Constitution did not apply
directly to horizontal disputes, it did apply indirectly. S 35(3) of the interim Constitution
thus provided that ‘[i]n the interpretation of any law and the application and development
of the common law and customary law, a court shall have due regard to the spirit, purport
and objects of [the Bill of Rights]’. The approach adopted by the Constitutional Court in Du
Plessis resulted in much academic debate and criticism. See, for example, Woolman, S and
Davis, D (1996) The last laugh: Du Plessis v De Klerk, classical liberalism, Creole liberalism
and the application of fundamental rights under the interim and final Constitutions South
African Journal on Human Rights 12(3):361–404 at 361 and Sprigman, C and Osborne, M
(1999) Du Plessis is not dead: South Africa’s 1996 Constitution and the application of the
Bill of Rights to private disputes South African Journal on Human Rights 15(1):25–51 at 25.
102 (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011).
103 Juma Musjid para 58.
104 Juma Musjid para 58. See also Khumalo para 33.
105 Juma Musjid para 60.
106 Juma Musjid para 58.
107 Freedman (2012) para 9.
108 S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR
793 (CC) (8 June 1995) para 59; Zantsi v Council of State, Ciskei and Others (CCT24/94)
[1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) (22 September 1995) paras
2–5; Ferreira; Vryenhoek para 199; S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12)
BCLR 1588; 1997 (2) SA 887 (18 November 1996) paras 12–13; National Coalition for Gay
and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC
15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (9 October 1998) para 21.
109 (CCT283/16, CCT293/16, CCT294/16, CCT283/16) [2017] ZACC 31; 2017 (6) SA 287 (CC);
2017 (11) BCLR 1370 (CC) (29 August 2017).
110 Jordaan para 6
111 Jordaan para 8.
112 See s 39(2) of the Constitution.
113 See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079
(CC) (25 August 2000) para 22.
114 Hyundai para 23.
115 See South African Police Service v Police and Prisons Civil Rights Union and Another (CCT
89/10) [2011] ZACC 21; 2011 (6) SA 1 (CC); 2011 (9) BCLR 992 (CC) (9 June 2011) para 29.
116 Daniels v Campbell and Others (CCT 40/03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7)
BCLR 735 (CC) (11 March 2004) para 83.
117 Daniels para 24.
118 Hyundai para 22.
119 Daniels para 24.
120 (CCT 77/08) [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10) BCLR 978 (CC) (7 May 2009).
121 Act 56 of 2001.
122 Bertie Van Zyl para 40.
123 Bishop, M and Brickhill, J (2010) Constitutional Law Juta’s Annual Survey of South African
Law 224.
124 Bishop and Brickhill (2010) para 224.
125 Bishop and Brickhill (2010) para 224.
126 Bishop and Brickhill (2010) para 225.
127 The Constitutional text refers to ‘customary law’, which is why we use the term here.
However, scholars have argued that the term ‘customary law’ has its origins in colonialism
and reinforces the marginalisation of what is widely known as customary law and does not
capture the fact that this concept of law includes the interaction of ‘rules’ and ‘processes’ in
non-state normative orders. Sindiso Mnisi-Weeks and Aninka Claassens use the term
‘vernacular law’ and explain the reasons for this as follows: ‘Our preferred word
“vernacular”, when used in relation to law and its underlying values, carries a similar
meaning to that which the term has in relation to language: namely, that it is emic, locally
evolved and not imposed from the outside nor judged in terms of an external logic or
scheme. This is unlike the word “customary”, which has been tainted – especially as it is
often associated with official forms of the law, rather than what is commonly coming to be
known as “living customary law”. The use of the term “living customary law” by the courts
introduces further complexity, however, in that one can no longer be sure whether the
reference is to that form of the living law that is articulated by the courts or that which
continues to develop within the groupings that use vernacular law.’
See Mnisi Weeks, S and Claassens, A (2011) Tensions between vernacular values that
prioritise basic needs and state versions of customary law that contradict them Stellenbosch
Law Review 22(2):823–44.
128 See, for example, Du Plessis; Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98)
[1998] ZACC 11; 1998 (4) SA 753 (CC); 1998 (10) BCLR 1207 (CC) (27 August 1998).
129 Carmichele para 39.
130 Carmichele para 39.
131 See K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC);
2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005) para 17.
132 For an interesting and lively debate on this topic, see Fagan, A (2010) The secondary role of
the spirit, purport and objects of the Bill of Rights in the common law’s development South
African Law Journal 127(4):611–27; Davis, DM (2012) How many positivist legal
philosophers can be made to dance on the head of a pin? A reply to Professor Fagan South
African Law Journal 129(1):59–72; Fagan, A (2012) A straw man, three red herrings, and a
closet rule-worshipper: A rejoinder to Davis JP South African Law Journal 129(4):788–98;
Davis, DM (2013) The importance of reading: A rebuttal to the jurisprudence of Anton
Fagan South African Law Journal 130(1):52–9.
133 Davis (2012) 67.
134 Davis (2012) 67–8.
135 Jordaan para 8.
136 (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August
2003) para 27. See also Carmichele para 54; Paulsen and Another v Slip Knot Investments
777 (Pty) Limited (CCT 61/14) [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509 (CC)
(24 March 2015) para 118; K para 15; and Salem Party Club and Others v Salem Community
and Others (CCT26/17) [2017] ZACC 46; 2018 (3) SA 1 (CC); 2018 (3) BCLR 342 (CC) (11
December 2017) para 68.
137 Thebus para 27.
138 Thebus para 28.
139 Thebus para 32.
140 Thebus para 26.
141 (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) (13 June 2005).
142 K para 16.
143 (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013)
para 24. See also Gumede (born Shange) v President of the Republic of South Africa and
Others (CCT 50/08) [2008] ZACC 23; 2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC) (8
December 2008) para 22; Alexkor Ltd and Another v Richtersveld Community and Others
(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October
2003); Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17;
2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 41; First Certification
para 197.
144 Dikoko v Mokhatla (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1
(CC) (3 August 2006).
145 Dikoko para 113.
146 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA
217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004).
147 Port Elizabeth para 37.
148 Patel, L (2015) Decolonizing Educational Research: From Ownership to Answerability 3.
149 National Development Plan: Vision for 2030 (2011) 290.
Limitation

11.1 Introduction

11.2 Two-stage enquiry

11.3 Evolution of the general limitation clause

11.4 The first stage: Has the right been infringed?

11.4.1 Introduction
11.4.2 The content and scope of the protected right
11.4.2.1 Introduction
11.4.2.2 Internal modifiers
11.4.3 The meaning and effect of the impugned law or conduct

11.5 The limitation analysis

11.5.1 Introduction
11.5.2 Law of general application
11.5.2.1 Introduction
11.5.2.2 The limitation must take the form of a law
11.5.2.3 The content of the law must be generally applicable

11.6 Reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom
11.6.1 Reconsidering the role of proportionality
11.6.2 The purpose of the limitation
11.6.3 The rational connection requirement
11.6.4 Less restrictive, alternative means of achieving the end
 11.6.5 Balancing and proportionality proper
11.6.5.1 Introduction
11.6.5.2 Stacking the rights side of the balancing scales
11.6.5.3 Stacking the limiting measure’s side of the balancing scales
11.6.5.4 Balancing and proportionality proper
11.6.5.5 Reasonable accommodation

11.7 The burden of justification

11.8 Special limitations

11.9 The limitation of rights by other constitutional provisions

Summary

11.1 Introduction
Although the rights protected in the Bill of Rights are fundamental and,
therefore, lie at the heart of the Constitution and the democracy it
envisions, they are not absolute. Instead, the Constitution expressly
provides that they may be limited in certain specific circumstances in
order to promote the public interest or to protect other rights. For
example, legislation prohibiting corporal punishment in Christian
schools may well limit the right to freedom of religion, but the
Constitutional Court held that this was a justifiable limitation of this
right.1 Section 7(3) of the Constitution thus provides that ‘[t]he rights in
the Bill of Rights are subject to the limitations contained or referred to
in section 36, or elsewhere in the Bill’. As the provisions of this section
indicate, the Constitution distinguishes between those limitations
authorised by section 36 and those authorised ‘elsewhere’ in the Bill of
Rights.

Limitations must be distinguished from

internal modifiers
A limitation refers to law or conduct that restricts a
fundamental right protected by the Bill of Rights after
the commencement of the Constitution. It does not
 refer to restrictions on the content and scope of a right
that arises from the text of the Constitution itself or
from the manner in which the text has been interpreted
by the courts. For example, section 17 of the
Constitution provides that ‘[e]veryone has the right,
peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions’. The reference to
‘peaceful and unarmed’ assemblies is not a limitation
on the right which has to be justified in terms of
section 36. Instead, it delineates the content and
scope of the right by explicitly excluding certain
practices, namely violent and armed assemblies. It
follows, therefore, that section 17 protects peaceful
and unarmed assemblies only; it does not protect
violent or armed assembles. These sorts of restrictions
are referred to as ‘internal modifiers’. An important
consequence of this internal modifier is that a statute
that prohibits violent or armed assemblies does not
infringe section 17 and does not have to be justified in
terms of section 36.

Apart from the fact that it applies to all of the fundamental rights
protected in the Bill of Rights, section 36 of the Constitution also
provides that the rights in the Bill of Rights must be limited according to
the same criteria. These criteria are set out in section 36(1) itself, which
provides as follows:
The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
Besides acknowledging that the fundamental rights protected in the Bill
of Rights may be limited, and identifying the criteria according to which
a limitation must be justified, a limitation clause like section 36(1) also
serves a number of other goals.
One of these goals is to address the counter-majoritarian dilemma.
As we discussed in Chapter 2, this dilemma refers to the argument that
judicial review is undemocratic because it confers the power on
unelected and unaccountable judges to substitute their decisions for
those of the democratically elected representatives of the people. When
the courts declare a statutory enactment or executive action to be
unconstitutional, therefore, they are not exercising power on behalf of
the majority, but against it. Although it does not completely resolve the
counter-majoritarian dilemma, section 36(1) ameliorates it by
conceding that democratically elected Parliament may limit the
fundamental rights of individuals, but only within the rigid framework
provided by the limitation clause.2
Section 36(1) also has important implications for the manner in
which the legislative, executive and judicial branches of government
exercise their powers and perform their functions. In so far as the
legislature is concerned, a limitation clause provides an analytical
framework within which legislation must be conceived, drafted, and
debated. A similar point may be made in so far as the executive is
concerned. Executive action must be arranged, developed and
implemented in accordance with the analytical framework established
by the limitation clause. A limitation clause also imposes an obligation
on the courts to consider conflicting public and private interests in an
open, orderly and structured manner.3

11.2 Two-stage enquiry

A significant consequence of a limitation clause is that it gives rise to a
two-stage enquiry. At the first stage it must be determined whether a
fundamental right has been limited. At the second stage it must be
determined whether the limitation can be justified either in terms of the
general limitation clause or in terms of a specific limitation clause. In
Director of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development,4 the Constitutional Court described the
two-stage inquiry as follows:
The question of whether a right in the Bill of Rights has been violated generally
involves a two-pronged enquiry. The first enquiry is whether the … provision
limits a right in the Bill of Rights. If the provision limits a right in the Bill of
Rights, this right must be clearly identified. The second enquiry is whether the
limitation is reasonable and justifiable under section 36(1) of the Constitution.
Courts considering the constitutionality of a statutory provision should
therefore adhere to this approach to constitutional adjudication.5

Both the first stage and the second stage themselves encompass a
number of enquiries. During the first stage, it must be determined
whether the party who claims that his or her fundamental right has
been limited is a bearer of that right, whether the party who limited the
right (the perpetrator) is bound by it and whether the perpetrator’s
actions (which must take the form of law or conduct) have in fact
limited the right by infringing or violating it.6
During the second stage, it must be determined, in those cases in
which section 36(1) applies, whether the right has been limited by law
of general application and, if so, whether that law is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom; or, where a specific limitation clause applies,
whether the requirements of that specific limitation clause have been
satisfied.
Before turning to discuss each stage in more detail, however, it will
be helpful to set out and discuss the evolution of the general limitation
clause. This is because the nature of the general limitation enquiry has
changed over time. Initially, section 33(1) of the interim Constitution7
appeared to require a structured, sequential enquiry. The
Constitutional Court, however, rejected this approach early in its
jurisprudence and replaced it with a unified, balancing enquiry and this
approach was adopted by the drafters of the Constitution when they
composed section 36.
Although this unified, balancing approach confers a wide discretion
on the Constitutional Court and thus allows it to resolve disputes on a
case-by-case basis in a manner that both promotes the values on which
the Constitution is founded and upholds the separation of powers
between the judiciary, the legislature and the executive, it has also
made it difficult for other courts, other branches of the state, members
of the legal profession and members of the general public to
understand the limitation analysis and predict its outcome in a specific
case.

Short-circuiting the two-stage enquiry

Although a limitation clause requires a two-stage
enquiry in theory, in some cases the Constitutional
Court has skipped over the first enquiry and proceeded
directly to the limitation analysis by simply assuming
that the fundamental right in question has been
infringed.
In Christian Education South Africa v Minister of
Education,8 for example, the appellant applied for an
order declaring section 10 of the South African
Schools Act (SASA)9 – which prohibited corporal
punishment in public schools – to be unconstitutional
and invalid on the grounds that it infringed inter alia
their right to religious freedom guaranteed in section of
15(1) of the Constitution.
The Constitutional Court dismissed the application.
In arriving at its decision, the Court held that it was not
necessary to decide whether corporal punishment
formed a part of the applicant’s Christian beliefs or
that the prohibition on corporal punishment in section
10 of the SASA infringed these beliefs. Instead, it
simply assumed that it did and then proceeded to
determine whether this infringement could be justified
in terms of the general limitation clause.
The Court based its decision to skip over the first
stage of the two-stage enquiry and proceed directly to
 the second stage on the grounds that the case gave
rise to many complex questions that had not been
properly argued and, consequently, that the Court
should be cautious about trying to answer them so
early in its jurisprudence. The Court stated in this
respect as follows:
This is clearly an area where interpretation should be prudently
undertaken so that appropriate constitutional analysis can be
developed over time in the light of the multitude of different
situations that will arise. If it is possible to decide the present
matter without attempting to give definitive answers on a complex
range of questions in a new field, many of which were not fully
canvassed in argument, then such a course should be followed. In
the present matter I think that it is possible to do so. For the
purposes of this judgment, I shall adopt the approach most
favourable to the appellant and assume without deciding that
appellant’s religious rights under sections 15 and 31(1) are both
in issue. I shall also assume, again without deciding, that
corporal punishment as practised by the appellant’s members is
not “inconsistent with any provision of the Bill of Rights” as
contemplated by section 31(2). I assume therefore that section
10 of the Schools Act limits the parents’ religious rights both
under section 31 and section 15. I shall consider, on these
assumptions, whether section 10 of the Schools Act constitutes a
reasonable and justifiable limitation of the parents’ practice rights
under section 15 and section 31.10

As Currie and De Waal point out, however, this is ‘an

extremely artificial way of deciding a case’. This is
because ‘the balancing exercise required by the
limitation clause cannot be carried out accurately with
only a “hypothetical” violation of rights on one side of
the scale’. In addition, ‘when [a] case is decided on
the basis of an assumption rather than a holding that
a right has been limited, the entire discussion of the
justifiability of the limitation becomes a hypothetical
exercise with no precedential value’.11

11.3 Evolution of the general limitation clause

The decision to include a Bill of Rights in the interim Constitution gave
rise to a number of complex and difficult questions. One of these was
whether a formal limitation clause should be included or not. In so far
as this question was concerned, the drafters of the interim Constitution
were faced with three options. The first was merely to set out the rights
without any formal limitation clause and, consequently, to leave it to
the courts to ‘find limits to constitutional rights through a narrow
interpretation of the rights themselves’.12 This approach is followed in
the United States Constitution. The second was to include rights-
specific limitation clauses, such as that found in the European
Convention for the Protection of Human Rights and Fundamental
Freedoms.13 The third was to include a general limitation clause
applicable to all the rights protected under the Constitution, such as
that found in Canada’s Charter of Rights and Freedoms.14
Under both the interim Constitution and the Constitution, the
drafters opted for a general limitation clause together with a small
number of rights-specific limitation clauses. Section 33(1) of the interim
Constitution thus provided that a right guaranteed in the Bill of Rights
could be limited by a law of general application, ‘provided that such
limitation (a) shall be permissible only to the extent that it is (i)
reasonable; (ii) justifiable in an open and democratic society based on
freedom and equality; and (b) shall not negate the essential content of
the right in question’.15 In addition, it provided that the limitation of
certain ‘entrenched’ rights,16 must also be necessary.17
The drafters of section 33 of the interim Constitution were clearly
influenced by the general limitation clause contained in the Canadian
Charter of Rights and, to a lesser extent, the limitation clause contained
in the German Basic Law, which is structured in a similar manner.18
Given the influence it exerted on the drafters of section 33 of the interim
Constitution, it was widely expected that when it came to interpreting
the general limitation clause, the Constitutional Court would follow the
approach adopted by the Canadian Supreme Court in its seminal
judgment in R v Oakes.19
In this case, the Canadian Supreme Court adopted a three-stage
approach to the limitation of rights. In this respect, it held that a court
must determine, first, whether the law that limits the right or freedom in
question is rationally connected to the object it is seeking to achieve;
second, if there is a rational connection, whether the limitation violates
the right or freedom ‘as little as possible’; and third, whether the harm
caused by the limitation is proportional to the object that it is seeking to
achieve. In his judgment, Dickson CJC described the three-stage
approach as follows:
First, the measures adopted must be carefully designed to achieve the objective
in question. They must not be arbitrary, unfair or based on irrational
considerations. In short, they must be rationally connected to the objective.
Second, the means, even if rationally connected to the objective in this first
sense, should impair ‘as little as possible’ the right or freedom in question …
Third, there must be a proportionality between the effects of the measures
which are responsible for limiting the Charter right or freedom, and the
objective which has been identified as of ‘sufficient importance’.20

Instead of following the structured and sequential test adopted by the

Canadian Supreme Court in Oakes, however, the Constitutional Court
in S v Makwanyane21 opted to adopt a singular global approach in
which it considers a list of factors together in a kind of balancing test.
This approach conflated the two requirements of reasonableness and
necessity, omitted justifiability and introduced the notion of
proportionality (‘which calls for the balancing of different interests’).22
In his judgment, Chaskalson P (as he then was) described the singular
global approach as follows:
The limitation of constitutional rights for a purpose that is reasonable and
necessary in a democratic society involves the weighing up of competing
values, and ultimately an assessment based on proportionality. This is implicit in
the provisions of section 33(1). The fact that different rights have different
implications for democracy, and in the case of our Constitution, for “an open
and democratic society based on freedom and equality”, means that there is no
absolute standard which can be laid down for determining reasonableness and
necessity. Principles can be established, but the application of those principles
to particular circumstances can only be done on a case by case basis. This is
inherent in the requirement of proportionality, which calls for the balancing of
different interests.23
 The confusing and misplaced metaphor of
balancing and proportionality
In his judgment in S v Makwanyane, Chaskalson P
found that it was implicit in section 33(1) of the
interim Constitution that the limitation of a
constitutional right ‘involves the weighing up of
competing values [balancing], and ultimately an
assessment based on proportionality’. This finding may
be criticised on the ground that the language of
section 33(1), which spoke of justifiability and not
proportionality, did not imply that the limitation enquiry
must always involve balancing and proportionality.
Instead, it could just as easily be argued that the
language of section 33(1) implied that balancing and
proportionality might be the ultimate leg of a staged
process should it ever get to that point. To reduce
section 33(1) to being only about balancing and
proportionality is difficult to reconcile with the text of
the section. In addition, such an approach is confusing
as it makes the whole exercise about a metaphorical
formulation of balancing and proportionality.24 It is
difficult to know, however, exactly what must be
balanced against what else and whether the various
interests at play in any limitation clause enquiry can
indeed be balanced against each other at all.

Although section 36(1) of the Constitution uses the phrase ‘reasonable

and justifiable’25 rather than the terms ‘balancing’ or ‘proportionality’,
the singular global approach adopted in Makwanyane clearly
influenced the drafters of the Constitution who elected to abandon the
sequential and structured approach in section 33 of the interim
Constitution26 and replace it with Makwanyane’s singular, global
approach in which certain factors are ‘considered’. In an attempt to
bring some substance to this fairly abstract approach, the drafters of the
Constitution also included the factors listed in Makwanyane as relevant
to balancing27 and added another one: less restrictive means.28

Understanding balancing as an adjudicative

strategy
The reasons for the Constitutional Court’s deliberate
move in Makwanyane away from a sequential,
structured approach to the limitation of rights towards
a singular, global approach that turns almost entirely
on the problematic metaphor of balancing are not easy
to identify. One possible explanation may be derived
from Roux’s analysis of the Constitutional Court’s
decision-making process.
Leaning on political science approaches to the
understanding of law and courts, Roux argues that a
constitutional court’s primary goal in a new democracy
is to promote the rule of law by ensuring that its
‘decisions are respected and obeyed and that its
constitutional powers are not curtailed’. In order to
achieve this goal, constitutional courts need to build
their institutional security without sacrificing their legal
legitimacy. This depends primarily on each court’s
ability to decide politically controversial cases
according to law, but without provoking a destructive
backlash from the political branches that it cannot
overcome.29
The South African Constitutional Court, Roux
argues further, has sought to perform this difficult task
by adopting four ‘adjudicative strategies’, namely ‘the
use of doctrinally redundant language to set the tone
of a judgment; a preference for formal legal reasoning
over substantive moral reasoning; a tendency to
convert conceptual tests into multi-factor balancing
tests or discretionary standards; and the manipulation
of textual ambiguity to lower the political temperature
of particularly controversial cases’.30
Out of these four adjudicative strategies, the
Constitutional Court’s tendency to convert conceptual
tests into multi-factor balancing tests or discretionary
standards is particularly relevant to section 36(1) of
the Constitution. In terms of this strategy, Roux argues,
the Court replaces ‘conceptual distinctions with a
discretionary standard of review’. The best example of
this may be found in First National Bank of SA Limited
t/a Wesbank v Commissioner for the South African
Revenue Service and Another; First National Bank of
SA Limited t/a Wesbank v Minister of Finance,31 where
the Court converted the concepts encompassed by
section 25 of the Constitution into a ‘sliding-scale
arbitrariness test’.32
‘On its face’, Roux argues further, section 25 of the
Constitution encompasses six conceptual distinctions,
any one of which could have been used to balance
competing public and private interests in land. One of
these conceptual distinctions is between those
interests that constitute property and those that do
not. Another is between the deprivation of property and
the expropriation of property. Instead of defining any of
these concepts, however, the Court held in First
National Bank that the key issue to be decided in any
constitutional property case is whether the impugned
law provides a ‘sufficient reason’ for the deprivation
and that this question must be answered by taking a
wide range of factors into account.33
The advantage of converting the conceptual
distinctions encompassed by section 25 of the
Constitution into a multi-factor balancing test or
discretionary review standard, Roux points out, is that
it allows the Constitutional Court to resolve
 constitutional property law disputes without having ‘to
commit to any particular position on the range of
controversial questions that could potentially come
before it’. In other words, it creates a doctrinal space
that allows the Court to hand down context-sensitive
judgments in later cases. Rather than being
‘unconscious or whimsical’, therefore, these
adjudicative moves are ‘part of a deliberate strategy on
the part of the [Court] make its [decisions] more
context-sensitive’.34
Although Roux does not cite Makwanyane or the
Constitutional Court’s subsequent approach to section
36(1) of the Constitution as an example of its
tendency to convert conceptual tests into multi-factor
balancing tests or discretionary standards, there are
good reasons for doing so. While employing
adjudicative devices that create the necessary
doctrinal space in specific cases might be useful in
future cases of a similar nature, doing so in respect of
the limitation clause would create such space
systemically. Further, if the Court is employing such
devices in order to manage its relationship with the
executive and legislature – and to protect its
institutional security – then there is no better place to
do so than section 36(1): the lynchpin of that
relationship.

11.4 The first stage: Has the right been infringed?

11.4.1 Introduction
As pointed out above, during the first stage of the two-stage limitation
analysis, it must be determined whether the party who claims that his
or her fundamental right has been limited is a bearer of that right,
whether the party who limited the right (the perpetrator) is bound by it
and whether the perpetrator’s actions (which must take the form of law
or conduct) have limited the right by infringing or violating it. Although
each of these questions is dealt with in separate chapters in this book, it
will be helpful to discuss the third question in a bit more detail.
In Ex parte Minister of Safety and Security: In re S v Walters,35 the
Constitutional Court held that when it comes to determining whether
the perpetrator’s actions – which may take the form of either a law or
conduct – have infringed a right protected by the Bill of Rights, a court
must examine ‘(a) the content and scope of the relevant protected
right(s) and (b) the meaning and effect of the impugned enactment [or
conduct] to see whether there is any limitation of (a) by (b)’.36
Over the past 25 years, the Constitutional Court has adopted two
different approaches to the first stage of the limitation analysis. In some
cases, the Court has set out and discussed the content and scope of the
right in comprehensive detail before going on to consider whether (and
later to what extent) the impugned law or conduct infringes the right. In
other cases, it has not. Instead, the Court has simply accepted
notionally37 or even hypothetically38 that a right has been limited and
then proceeded to the second stage of the limitation analysis without
much analytical rigour.

Advantages of a substantive, value-based

approach to the first stage of the limitation
analysis
While there is nothing wrong in principle with adopting
a notional or hypothetical approach to the first stage of
the limitation analysis, there are some factors that
weigh in favour of adopting a more substantive, value-
based approach. As Woolman and Botha explain,
among these are the following:
First, it is consistent with the text’s admonition the provisions of
the Bill of Rights be interpreted in light of the values which
underlie an open and democratic society based on human dignity,
 equality and freedom. The Final Constitution was not meant to
protect certain forms of behaviour and a value-based approach
permits us to screen out those forms of behaviour which do not
merit constitutional protection.

Secondly, high value-based barriers for the first stage of analysis

mean that only genuine and serious violations of a constitutional
right make it through to FC s 36. If only serious infringements
make it through, then the court can take a fairly rigorous
approach with respect to the justification for the impairment. It
could then be fairly confident that when it nullified law or conduct
there would be something worth protecting.

Thirdly, the value-based approach is consistent with the notion

that a ‘unity of values’ underlies both the rights-infringement
determination and the limitation-justification analysis. The
language of the interpretation clause and the limitation clause
strongly suggests that both enquiries are driven by a desire to
serve the five values underlying our entire constitutional
enterprise: openness, democracy, human dignity, freedom, and
equality.39

11.4.2 The content and scope of the protected right

11.4.2.1 Introduction
In the chapters that follow we will discuss the scope and content of a
selected number of specific rights in detail. However, it is important
here to explain more generally how the courts proceed when deciding
what the scope and content of a specific right is. When it comes to
determining the content and scope of a right, the Constitutional Court
has held that the text of the Constitution must be interpreted
generously, purposively and contextually.40 In S v Makwanyane, for
example, the Court held that while it is important to pay ‘due regard to
the language that has been used’, the interpretation of the Bill of Rights
must be ‘generous’ and ‘purposive’ and ‘[give] expression to the
underlying values of the Constitution’.41
This interpretive approach requires a court to identify the purpose of
a protected right by analysing the history of the right; the language in
which the right has been expressed, the concepts encompassed by the
right; the manner in which the right has been interpreted both in South
Africa and comparable foreign jurisdictions; the other provisions of the
Constitution and the Bill of Rights; and the core values on which the
Constitution is founded.42 International human rights law may also
need to be taken into account.43 Finally, the interpretation should also
be generous, rather than legalistic so as to endow individuals with the
full benefits of the Bill of Rights.44
Although a generous, purposive and contextual approach to the
interpretation of the rights protected by the Bill of Rights will inevitably
narrow the content and scope of a right at the level of its definition, the
Constitutional Court has urged the courts not to unnecessarily restrict
rights by adopting an excessively narrow interpretation that would
result in the premature termination of the limitation analysis at the
expense of the litigant.45 In S v Zuma,46 for example, Kentridge AJ
warned that ‘the two-stage approach may call for a broader
interpretation of the fundamental right, qualified only at the second
stage’.47
An important consequence of Kentridge AJ’s warning is that it may
result in the content and scope of some rights being defined so broadly
that they include conduct that is not worthy of constitutional
protection. In these sorts of cases, however, it will usually be easy to
justify a statutory enactment prohibiting such conduct. This is what
happened in De Reuck v Director of Public Prosecutions.48 In this case,
the applicant, who was a film producer, was found in possession of
child pornography and was charged in the regional magistrates’ court
with contravening section 27(1) of the Film and Publications Act (the
Films Act).49 This section provided that a person committed an offence
if he or she created, produced, imported or possessed any publication
or film which contained child pornography.
After he was charged, the applicant applied to the Johannesburg
High Court for an order declaring section 27(1) of the Films Act to be
unconstitutional and invalid on the ground that it infringed the right to
freedom of expression guaranteed in section 16(1) of the Constitution.
The High Court dismissed his application and the applicant then
appealed directly to the Constitutional Court which also dismissed his
application.
In arriving at this conclusion, the Court followed the two-stage
enquiry. This meant that it had to determine, first, whether section
27(1) of the Films Act infringed section 16(1) of the Constitution and if it
did, second, whether that infringement was a reasonable and justifiable
limitation in an open and democratic society based on human dignity,
equality and freedom.50
In so far as the first stage was concerned, the Director of Public
Prosecutions (DPP) argued that, like in the United States, child
pornography should be excluded from the content and scope of the
right to freedom of expression because it does not serve any of the
values that underlie the right, namely truth seeking, free political
activity and self-fulfilment. It followed, therefore, that the prohibition of
child pornography in section 27(1) of the Films Act did not infringe the
right to freedom of expression and did not have to be justified in terms
of the general limitation clause.51
Although child pornography was classified as unprotected speech in
the United States, the Court held, the same approach could not be
adopted in South Africa. This is because in South Africa all forms of
expression except for those listed in section 16(2) of the Constitution
are protected by section 16(1). Child pornography, therefore, was not
excluded from the content and scope of the right to freedom of
expression and the prohibition in section 27(1) of the Films Act would
be constitutionally valid only if it satisfied the requirements of the
general limitation clause.52
After setting out these principles, the Court turned to consider
whether section 27(1) of the Films Act was a reasonable and justifiable
limitation of the right to freedom of expression in an open and
democratic society based on human dignity, equality and freedom. The
Court found that it was for a wide range of reasons and dismissed the
appeal.53

11.4.2.2 Internal modifiers

Some rights are set out in ‘unqualified terms’.54 The right to life, for
example, simply states that ‘[e]veryone has the right to life’. Similarly,
the right to freedom of association simply states that ‘[e]veryone has the
right to freedom of association’. The only restrictions that may be
imposed on these rights, therefore, are those that satisfy the
requirements of the general limitation clause.
Other rights, however, are not set out in such unqualified terms.
Instead, they contain so-called ‘internal modifiers’ delineating their
content and scope. The purpose of these internal modifiers is to
delineate the content and scope of rights more precisely than is the case
with unqualified rights. Internal modifiers achieve this goal in at least
three different ways:
• First, some internal modifiers delineate the content and scope of
rights by explicitly enumerating the content of the right. The right to
privacy guaranteed in section 14, for example, includes the right of
everyone ‘not to have (a) their person or home searched; (b) their
property searched; (c) their possessions seized; or (d) the privacy of
their communications infringed’.
• Second, other internal modifiers delineate the content and scope of
rights by explicitly excluding certain practices from the content of
the right. The right to freedom of expression guaranteed in section
16, for example, explicitly excludes ‘(a) propaganda for war; (b)
incitement of imminent violence; and (c) advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm’.
• Third, yet other internal modifiers condition the application of a
right more subtly. The right to affirmative action guaranteed in
section 9(2), for example, extends the content and scope of the right
to equality by classifying affirmative action as an inherent part of the
right and not simply a defence to a claim of unfair discrimination.55

It is important to distinguish between internal modifiers and special

limitations. Unlike internal modifiers, special limitations do not
delineate the content and scope of a right. Instead, they create special
criteria for the limitation of specific rights. These criteria interact with
the general limitation clause by elucidating, extending or restricting one
or more of the elements of the general limitation clause. Given these
differences, it follows that internal modifiers must be applied at the first
stage of the two-stage enquiry, while special limitations must be
applied at the second stage.

The limitation analysis does not always serve

a practical purpose
Apart from internal modifiers that explicitly enumerate
the content and scope of rights or explicitly exclude
certain practices from the content and scope of rights
or that condition the application of rights, some
internal modifiers delineate the content and scope of
rights by including concepts such as ‘unfair’,
‘reasonable’ or ‘arbitrary’. Section 9(3), for example,
provides that the ‘state may not unfairly discriminate
directly or indirectly against anyone …’; section 24(b)
provides that ‘[e]veryone has the right to have the
environment protected, …, through reasonable
legislative and other measures …’; and section 25(1)
provides that ‘[n]o one may be deprived of property
except in terms of law of general application and no
law may permit arbitrary deprivation of property’.56
Given that these concepts mirror some of the
factors set out in section 36(1) of the Constitution, the
application of the limitation clause to these provisions
appears to be superfluous. For example, once a law
has been found to unfairly discriminate against a
person at the first stage of the two-stage enquiry, it is
difficult to imagine how it could ever be characterised
as reasonable and justifiable in an open and
democratic society at the second stage. Rather than
abandoning the two-stage enquiry, however, the
Constitutional Court has generally chosen to
undertake, at times mechanically, a section 36(1)
analysis in conjunction with these internal modifiers.
The superfluous nature of section 36(1) in relation to
these sorts of provisions is clearly illustrated in First
National Bank.57 In this case, the Constitutional Court
had to determine whether section 114 of the Customs
and Excise Act58 unjustifiably infringed section 25(1) of
the Constitution by arbitrarily depriving FNB of its
property. After finding that section 114 was arbitrary
and, therefore, did limit section 25(1), the Court
turned to consider whether this limitation was
reasonable and justifiable.
The Constitutional Court began its justification analysis
by examining the relationship between the complex
test for arbitrariness it developed earlier in its
judgment59 and section 36(1). Given that this
arbitrariness test closely approximates the
proportionality test in section 36(1), the Court
acknowledged the ‘circularity’ of applying section
36(1) in such circumstances, but noted that ‘[n]either
the text nor purpose of section 36 suggests that any
right in the Bill of Rights is excluded from limitation
under its provisions’.60
Having identified the difficulty of applying section
36(1) to a statutory provision that it had already found
was not proportional and thus arbitrary, the Court went
on to simply assume, without deciding, that ‘an
infringement of section 25(1) of the Constitution is
subject to the provisions of section 36’.61 In its
justification analysis, however, the Court held that it
was unnecessary to engage in a detailed section 36(1)
analysis. Instead, it simply summarised the key
grounds on which it had already found that section
114 was not proportional:
 It is unnecessary, on the facts of the present case, to embark in
any detail on the section 36(1) justification analysis,
incorporating that of proportionality applied to the balancing of
different interests, … FNB’s ownership in the vehicles concerned is
ultimately completely extinguished by the operation of section
114 of the Act. As against this the Commissioner gains an
execution object for someone else’s customs debt. But, as already
indicated, there is no connection between FNB or its vehicles and
the customs debt in question. Under these circumstances the
object achieved by section 114 is grossly disproportional to the
infringement of FNB’s property rights.62

Despite these difficulties, the Constitutional Court

continues to apply these internal modifiers and section
36(1) conjunctively, but generally to no practical effect.

11.4.3 The meaning and effect of the impugned law or

conduct
Once the content and scope of the protected right has been determined,
the next question to be asked is whether the impugned law or conduct
infringes the content and scope of the right as it is defined. In Walters,63
the Constitutional Court held that this involves determining ‘the
meaning and effect of the impugned enactment [or conduct]’ to see
whether it limits the relevant protected right.64 Often this question is
addressed simultaneously with that of the content and scope, but it is
conceptually distinct.
This aspect of the two-stage limitation analysis is often a fact-
specific exercise and turns mainly on the nature and breadth of the
particular impugned law or conduct. Even when the content and scope
of the right are clearly set out, however, this may be a complex enquiry.
The types of complexity that this enquiry may give rise to are clearly
illustrated by the manner in which the Constitutional Court has defined
the content and scope of the right to privacy.
In Bernstein v Bester NO,65 the Constitutional Court held that the
right to privacy protects only those aspects of life in respect of which a
person has a subjective expectation of privacy which society recognises
as reasonable.66 In addition, the Court held further, the right to privacy
exists along a continuum. At the one end is the truly intimate or
personal realm and at the other end is the public or social realm. The
closer a person moves to the personal realm, the more intense the right
to privacy becomes and vice versa. A person’s subjective expectation of
privacy, therefore, is more likely to be reasonable in the intimate or
private sphere of life than the public or social sphere.67
Although this approach proved to be useful in a number of
subsequent judgments, it gave rise to difficult questions in S v Jordan.68
In this case, the applicant was convicted in the Magistrates’ Court of
contravening section 20(1)(aA) of the Sexual Offences Act,69 which
criminalised prostitution. After being convicted she applied to the
Pretoria High Court for an order declaring section 20(1)(aA) to be
unconstitutional and invalid on the ground that it unjustifiably
infringed the right to privacy. The High Court granted the order, which
was then referred to the Constitutional Court for confirmation.
In order to determine whether section 20(1)(aA) of the Sexual
Offences Act infringed the right to privacy, the Constitutional Court had
to determine where prostitution should be located on the privacy
continuum. This was not an easy question to answer because
prostitution is a hybrid activity. It is both a part of the personal realm
(sexual expression) and the public realm (buying and selling sex). In
their minority judgment, O’Regan and Sachs JJ held that sexual
expression should be located on the intimate end of the privacy
continuum only when it is aimed at ‘establishing and nurturing human
relations’. Given that prostitution is not aimed at achieving this goal,
however, it had to be located at the public or social end.70
Despite finding that prostitution should be located at the public and
social end of the privacy continuum, O’Regan and Sachs J nevertheless
went on to find that it was still protected by the right of privacy but that
a prostitute’s reasonable expectation of privacy was greatly reduced.
This meant that the infringement of the applicant’s right to privacy by
section 20(1)(aA) was not extensive and could easily be justified.71
A similar problem arose more recently in Centre for Child Law v
Media 24 Limited.72 In this case, the second applicant, KL, was
kidnapped when she was a two-year old baby. Seventeen years later she
was found by her biological parents and the woman who took her was
charged with abduction. The case attracted intense media attention
and, KL, who was a potential witness, did not want her image, name,
date of birth and other personal information to be published. Although
section 154(3) of the Criminal Procedure Act73 protected the identity of
child accused and child witnesses in criminal proceedings, it did not
protect the identity of child victims.
Together with the Centre for Child Law, KL then applied to the
Pretoria High Court for an order declaring, inter alia, that, properly
interpreted, section 154(3) of the Criminal Procedure Act did protect
the anonymity of child victims. The High Court granted the order and
the media respondent then appealed to the Supreme Court of Appeal.
Unlike the High Court, the Supreme Court of Appeal found that section
154(3) did not protect the anonymity of child victims and that the
failure to do so unjustifiably infringed the right to equal protection and
benefit of the law guaranteed in section 9(1) of the Constitution. The
Supreme Court of Appeal’s order was then referred to the Constitutional
Court for confirmation.
The Constitutional Court confirmed the Supreme Court of Appeal’s
order. In arriving at this decision it found that the failure to protect the
anonymity of child victims of crime infringed, not only the right to
equal protection and benefit of the law, but also the best interests of the
child guaranteed in section 28(2) of the Constitution and the rights to
privacy and dignity guaranteed in sections 10 and 14. In so far as the
right to privacy was concerned, the Court held that, similar to
prostitution, it was difficult to know where on the privacy continuum to
locate being a child victim. This is because it is both a part of the
personal realm (being a child victim) and a part of the public realm
(being a participant in criminal proceedings), which impacts on open
justice and freedom of expression.74
Instead of answering this question, however, the Court revisited the
content and scope of the right to privacy and held that it includes the
development of a person’s autonomous identity and that a person’s
experience as a victim is closely linked to his or her identity. Protecting
the anonymity of child victims goes to the heart of a person’s identity
and, therefore, does fall into the content and scope of the right to
privacy.75 This analysis of the right to privacy, the Court concluded, is
especially relevant when dealing with children. This is because ‘a child’s
self-identity is still forming and is dependent on the approval of others’
and because the ‘protection of the privacy of young persons fosters
respect for dignity, personal integrity and autonomy’.76

11.5 The limitation analysis

11.5.1 Introduction
Once a court has determined that an impugned law or conduct limits a
protected right, it must turn its attention to the second stage of the
limitation analysis, where it must consider whether the limitation of the
right is justified. If the court finds that the limitation is justified, the
impugned law or conduct has passed the test of constitutionality. If the
court finds that the limitation is not justified, then the impugned law or
conduct will be unconstitutional and hence invalid. At this stage, there
are two independent requirements that must be met to justify the
limitation of a right: first, the limitation must be ‘in terms of law of
general application’ and, second, the limitation must be ‘reasonable
and justifiable in an open and democratic society based on equality,
freedom and human dignity’.77 Each of these requirements will be
discussed in turn.

11.5.2 Law of general application

11.5.2.1 Introduction
The first hurdle to be cleared at the justification stage of the enquiry is
that the limitation must be ‘sourced’ in a law of general application.78
An important consequence of this requirement is that the limitation of a
protected right by something other than a law of general application
will always be unconstitutional, while the limitation of a protected right
by a law of general application may be saved from unconstitutionality
by the limitation clause.
 The rationale for this requirement is based partly on the principle of
democracy and partly on the rule of law. The principle of democracy
provide that the rights in the Bill of Rights should be limited only by
laws passed by a democratically elected legislature as representative of
the people, and the principle of the rule of law provides that limitations
should apply equally to all and should not be arbitrary in their scope
and application.79
What exactly is required by a law of general application is unclear as
the Constitutional Court has not articulated a general set of
requirements that must be met. Instead, it has dealt with this
requirement episodically and without much fervour. What is clear from
the text of section 36(1), however, is that a limitation must take the form
of a ‘law’ and that the content of that law must be ‘generally
applicable’.80

11.5.2.2 The limitation must take the form of a law

First and foremost, a limitation must be ‘in terms of’ something that is
recognised as ‘law’.81 A decision by a public body or functionary that is
not authorised by law or that takes the form of administrative, executive
or judicial action, therefore, would not constitute a law of general
application. Similarly, a decision made by a private person would not
qualify as a law of general application. It also does not include policies
and practices. In such cases, where there is no law to speak of, the
operation of this requirement is fairly straightforward.

Unauthorised decisions and decisions made

by private persons are not law
The argument that a decision made by a public body
that is not authorised by law cannot be classified as a
‘law’ of general application was confirmed by the
Constitutional Court in August v Electoral
Commission.82 In this case, the applicant, who was a
convicted prisoner serving a long sentence for fraud,
applied for an order declaring the Electoral
Commission’s decision not to facilitate the registration
of prisoners as voters prior to the 1999 general
election to be unconstitutional and invalid on the
ground that it unjustifiably limited the right to vote in
section 19(3) of the Constitution.
After finding that the Electoral Commission’s decision
clearly infringed section 19(3) of the Constitution, the
Constitutional Court turned to consider whether this
limitation could be justified in terms of the limitation
clause. In this respect, the Court held that it could not
because the Electoral Commission’s decision was not
authorised by any law, it was simply the result of
administrative inaction. ‘In the absence of a
disqualifying legislative provision’, the Court stated, ‘it
was not possible for … [the Electoral Commission] to
seek to justify the threatened infringement of prisoners’
rights’.83
More recently, the Constitutional Court has also
verified the argument that a contract entered into by
private persons cannot be classified as a ‘law’ of
general application. In Dladla v City of Johannesburg,84
the applicants were evicted from the property they
unlawfully occupied close to the centre of
Johannesburg. Following their eviction, the applicants
were provided temporary accommodation by the City
at a shelter owned by Metropolitan Evangelical
Services (MES). MES agreed to house the applicants
in terms of a contract between itself and the City.
When the applicants arrived at the shelter, they
were told that they had to abide by the rules of the
shelter. One of these rules prohibited the applicants
from remaining on the premises between 8h30 and
17h30 every day and from returning after 20h00.
Another segregated them on the basis of sex by
providing separate dormitories for men and women.
 Although the applicants complained that these rules
were oppressive, the City and MES refused to relax
them. The applicants then applied for an order
declaring the rules to be unconstitutional and invalid
on the ground that they unjustifiably infringed their
rights to dignity, freedom and security of the person,
and privacy.
After finding that the rules did infringe the
applicants’ rights to dignity, freedom and security of
the person and privacy,85 the Constitutional Court
turned to consider whether this limitation could be
justified in terms of the limitation clause. In this
respect, the Court held that it could not because the
impugned rules were not authorised by a ‘law’. Instead,
they were ‘imposed by a contract concluded between
the City and MES’. Given that this ‘contract [was] a
private agreement and [did] not bind third parties, it is
the very opposite of a “law of general application”’. In
the absence of such a law, the City could not rely on
section 36 to justify the limitations created by the
impugned rules.86

While it is relatively straightforward to identify those actions or

decisions that do not qualify as law, it is more complex to identify those
exercises of public power that do. In this respect, it is generally accepted
that the term includes legislation,87 common law88 and customary law.89
In addition, the Constitutional Court has held that other exercises of
public power also amount to law, including subordinate legislation,90
municipal by-laws,91 domesticated international conventions92 and
rules of court.93
Apart from these categories, in President of the Republic of South
Africa v Hugo,94 Mokgoro and Kriegler JJ, in their separate dissenting
judgments, addressed the question of whether a decision made by the
President in his capacity as Head of State to remit the sentences of
certain categories of prisoners which was published in the form of a
‘Presidential Act’ qualified as a law for the purposes of section 36(1) of
the Constitution (the majority did not address the issue as it found that
the measure in question effectively did not limit the right to equality).
In her judgment, Mokgoro J held that even though the President’s
decision was not conventional legislation, it did qualify as a law of
general application.95 Conversely, Krieger J held that it did not qualify
because the President’s decision was ‘non-recurrent and specific,
intended to benefit particular persons or classes of persons, to do so
once only, and is given effect by an executive order directed to specific
state officials’.96
The issue of whether a decision of the President in his capacity as
Head of State qualifies as a law thus remains unresolved.

11.5.2.3 The content of the law must be generally applicable

As far as the content of such laws is concerned, the Constitution makes
no explicit demands of the impugned law in this regard beyond that it
must be ‘of general application’. Thus far, the Constitutional Court has
not grappled with the nature of the general application requirement in
great detail.
In her dissenting opinion in Hugo, however, Mokgoro J held that the
meaning and purpose of the law of ‘general application’ requirement
can be derived from the decisions of the European Court of Human
Rights and the Canadian Supreme Court, both of which have
interpreted the equivalent phrase ‘prescribed by law’ in the context of
the limitation of rights.97
In Sunday Times v The United Kingdom,98 for example, the European
Court of Human Rights held that two requirements flow from the
phrase ‘prescribed by law’. First, the law must be adequately accessible
and, second, it must be sufficiently precise.99 And in Committee for the
Commonwealth of Canada v Canada,100 the Canadian Supreme Court
held that rules can be classified as ‘law’ only if they apply generally.101
In light of these judgments, Mokgoro J concluded, ‘[i]t can be seen
then that several concerns underlie the interpretation of “prescribed by
law”. The need for accessibility, precision and general application flow
from the concept of the rule of law. A person should be able to know of
the law, and be able to conform his or her conduct to the law. Further,
laws should apply generally, rather than targeting specific individuals’.102
Mokgoro J’s decision to include accessibility and precision in the
requirement of a law of general application was subsequently adopted
by a unanimous Constitutional Court in Dawood v Minister of Home
Affairs103 when it held that ‘[i]t is an important principle of the rule of
law that rules be stated in a clear and accessible manner. It is because of
this principle that section 36 requires that limitations of rights may be
justifiable only if they are authorised by a law of general application’.104
These three demands – general application, accessibility and
precision (clarity) – can be said to reflect the minimalist position on
what this requirement demands of the content of the law in question.
Some academic commentators go further, setting out additional
requirements to be met by the content of the law in question in order to
pass constitutional muster under section 36(1).105 As far as which
approach should be preferred when it comes to the demands on
content, the point could be made that these broader concerns are best
left to the next phase of the limitation enquiry.106

11.6 Reasonable and justifiable in an open and democratic

society based on human dignity, equality and freedom

11.6.1 Reconsidering the role of proportionality

From the outset, the Constitutional Court’s approach to the ‘reasonable
and justifiable’ requirement in the general limitation clause has turned
almost entirely on the notion of ‘balancing and proportionality’. This is
despite the fact that neither of these terms features in the text of section
36(1). Even though it is unclear what exactly balancing and
proportionality means and how it drives the reasonable and justifiable
analysis, the purpose of this part of the chapter is not to reject this
metaphorical test. Instead, it is to reconsider balancing and
proportionality to make it simpler to understand without changing its
substance. By identifying those aspects of the reasonable and justifiable
enquiry that implicate balancing and proportionality and those that do
not, it is hoped that this part of the chapter will, not only demystify the
process of limiting rights, but also make it clearer how balancing and
proportionality actually works.
The first step in reconsidering balancing and proportionality is to
separate into different questions the factors the Constitutional Court
considers when undertaking a section 36(1) reasonable and justifiable
analysis. Under section 33(1) of the interim Constitution, certain
criteria had to be met by the limiting measure.107 As it has been argued
already, if the Court had chosen to follow the Oakes formulation, these
criteria would have been further divided into more specific questions.108
Unfortunately, the Court did not do so. Instead, it and the drafters of the
Constitution opted to move (in form) in the other direction altogether:
from a structured, sequential enquiry with set criteria to be met, to a
global singular enquiry with factors to be considered.
Despite this change in direction, the first two questions in the Oakes
formulation are present in all the Constitutional Court’s reasonable and
justifiable jurisprudence, without exception. These two questions are
the following: First, does the limiting measure serve a legitimate
purpose (in an open and democratic society based on human dignity,
equality and freedom)? Second, if it does serve a legitimate purpose, is
there a rational connection between the limiting measure and its stated
purpose?
What is more, these two questions find loose and partial expression
in the factors contained in sections 36(1)(b)109 and 36(1)(d).110
Conceptually, these questions are threshold tests111 that are the starting
point of the reasonable and justifiable analysis both logically and legally
– logically, because a court cannot go on to balance competing rights
and interests without first quantifying them; and legally, because if a
measure fails the two questions, it can never justifiably limit a
fundamental right.
Crucially, these two threshold questions have nothing to do with
balancing and proportionality. That is to say, they are not relative to
other factors in the section 36(1) analysis and can be answered in
isolation from them using conventional legal reasoning.112 As a result,
when it comes to answering these two questions, we do not have to
choose between ‘formal or categorical reasoning’ and ‘balancing and
proportionality’.113 Having isolated the threshold questions, what
remains of the section 36(1) factors makes up the balancing and
proportionality enquiry proper.114
The next question to be asked is how these different enquiries or
factors interact. There is no sequence suggested in the text of section
36(1) itself. Rather, the balancing metaphor suggests that they should be
considered simultaneously. As noted above, this distinguishes section
36(1) of the Constitution from section 33 of the interim Constitution
and Oakes. Under the interim Constitution, the limitation process was
structured into separate questions. In addition, these questions were
sequenced. This meant that if one of the stages was failed, the
Constitutional Court could not proceed to the next stage. However,
under section 36(1) even when the Court separates the factors into
different enquiries – and generally considers the threshold questions
first – it does not sequence them but sometimes, ironically, considers
them mechanically. Having done so, the Court then balances all the
factors, notwithstanding the difference between threshold questions
and those relating to balancing and proportionality proper. Even when
the Court effectively terminates the enquiry after the threshold, it does
so using the language of balancing.115

Some rare examples of a sequential and

structured approach
Given that the factors listed in section 36(1) of the
Constitution are not set out in a structured or
sequential manner, it is perhaps not surprising that the
Constitutional Court tends to consider them
simultaneously, rather than in separate stages. There
have nevertheless been occasions when individual
judges have recognised the intuitive difference between
the section 36(1) factors and tried to re-introduce
 some structure into the limitation clause by applying
the ‘reasonable and justifiable’ requirements
separately.
For example, in his dissenting judgment in Prince v
President of the Law Society of the Cape of Good
Hope,116 Ngcobo J held that once a limitation has
failed the test of reasonableness, it is unnecessary to
continue with the limitation analysis and determine
whether the limitation is also justifiable. The mere fact
that it is unreasonable is sufficient to declare it
unconstitutional and invalid:
I accept that the goal of the impugned provisions is to prevent the
abuse of dependence-producing drugs and trafficking in those
drugs. I also accept that it is a legitimate goal. The question is
whether the means employed to achieve that goal are reasonable.
In my view, they are not. The fundamental reason why they are not
is because they are overbroad. … On that score they are
unreasonable and they fall at the first hurdle. This renders it
unnecessary to consider whether they are justifiable.117

And in Engelbrecht v Road Accident Fund,118 Kondile

AJ adopted the same approach. He held that once a
limitation has failed to meet the threshold test of
reasonableness, it is unnecessary to carry on to the
next stage. Out of an abundance of caution, however,
he did go on to consider whether the regulation was
justifiable.119

This all-at-once approach raises specific problems in so far as the

threshold questions are concerned. Among these are the following:
• First, the all-at-once approach is illogical. A limiting measure that
does not serve a legitimate purpose or does not achieve that
purpose can never satisfy the requirement of proportionality.
• Second, and related to this, the all-at-once approach makes extra
work for a court. Once a court has found that a limiting measure
does not serve a legitimate purpose or does not achieve that
 purpose, it is not necessary to go further and the limitation analysis
can be terminated.
• Third, the all-at-once approach is less analytically sound. Questions
that are initially addressed separately are often lumped together and
resolved using the all-inclusive language of balancing and
proportionality, glossing over the nuances of the decision-making
process.
• Fourth, the all-at-once approach reduces precedential value by
making the balance struck too case-specific.

Criticisms of the all-at-once approach

The fact that the Constitutional Court glosses over the
nuances of the decision-making process by using the
all-inclusive language of proportionality to lump
together and resolve questions that should be
addressed separately is clearly illustrated in its
judgment in Makwanyane.120
After first identifying retribution, prevention and
deterrence as the goals of capital punishment and
then considering each of them separately, the
Constitutional Court went on to conclude that:
[i]n the balancing process the principal factors that have to be
weighed are, on the one hand, the destruction of life and dignity
that is a consequence of the implementation of the death
sentence, the elements of arbitrariness and the possibility of error
in the enforcement of capital punishment, and the existence of a
severe alternative punishment (life imprisonment) and, on the
other, the claim that the death sentence is a greater deterrent to
murder, and will more effectively prevent its commission, than
would a sentence of life imprisonment, and that there is a public
demand for retributive justice to be imposed on murderers, which
only the death sentence can meet … Retribution cannot be
accorded the same weight under our Constitution as the rights to
life and dignity, which are the most important of all the rights in
Chapter Three. It has not been shown that the death sentence
would be materially more effective to deter or prevent murder than
the alternative sentence of life imprisonment would be. Taking
these factors into account, as well as the elements of
 arbitrariness and the possibility of error in enforcing the death
penalty, the clear and convincing case that is required to justify
the death sentence as a penalty for murder, has not been made
out. The requirements of section 33(1) have accordingly not been
satisfied …121

In this regard, Woolman and Botha note:

The balancer is inclined to restrict her finding to the case at hand,
as the next case may, ostensibly, require that a different balance
be struck. While there may be advantages to such a judicious
approach, … there is a growing concern within the academy that
the case-by-case approach to constitutional analysis, in general,
and limitations analysis, in particular, blunts the transformative
potential of the Final Constitution.122

This is not just a problem with threshold questions and

proportionality questions. It also conflates different
aspects of the proportionality enquiry such as less
restrictive means, overbreadth and reasonable
accommodation.

In discussing the reasonable and justifiable enquiry, we follow the

approach set out below:
• First, what is the purpose of the limiting measure (not importance
yet)? Is it legitimate in an open and democratic society based on
equality, freedom and human dignity?
• Second, what is the relationship between the limiting measure and
its stated purpose? More specifically, are they rationally connected?
• Third, are there clear, alternate means available that are less
restrictive on the full enjoyment of the right?
• Fourth, is the legitimate, rationally based limiting measure a
balanced and proportionate limitation on the right in question,
taking into account the degree of infringement, the nature of the
right, the breadth of the measure and the social good it achieves?
This is balancing and proportionality proper.
Figure 11.1 The steps in the justifi cation enquiry

As noted above, the aim of reconsidering the singular, global approach

to the reasonable and justifiable requirement is not substantively to
alter the enquiry. Rather, it is to make balancing and proportionality
proper more accessible by providing a simplified lens through which to
view the numerous decisions involving limitation and to understand
the different types of limitation analyses undertaken by the courts. We
discuss at each stage the jurisprudence that illustrates how courts have
followed a particular enquiry. As a brief example, Table 11.1 below
illustrates how, in Makwanyane, the Constitutional Court applied the
three objectives sought by the death penalty, namely retribution,
prevention and deterrence to the first three stages of the reasonable and
justifiable enquiry, before concluding with a balancing and
proportionality assessment at the fourth stage. In the process, the
differences between the stages are well illustrated.
Table 11.1 Applying the threshold questions and the proportionality assessment in Makwanyane
Criticisms of the balancing process
Although the Constitutional Court’s reasonable and
justifiable analysis is based heavily on the notion of
balancing, Woolman and Botha have criticised
balancing on a number of theoretical grounds:
• First, they point out that people value things
differently in qualitative and not solely quantitative
terms (pluralism). The things that we value are not
always (or often) commensurate with one another
(incommensurability). As a result, balancing
‘requires substantially more than the invocation of
such pat metaphors as the “scales of justice”
(complexity)’.123
• Second, they argue that ‘the Final Constitution –
like most constitutional texts – provides little or no
guidance as to how a court should determine the
relative weight to be attached to conflicting rights
and interests. One possible result is that the
weighting and the ranking of interests are not
grounded in constitutional interpretation … but are
based, instead, on the subjective preferences of
individual judges. This enables judges to skirt the
demands that attach to difficult and controversial
value-choices by employing the ostensibly neutral,
objective or scientific language of balancing’.124
• Third, they point out that the balancing approach
has historically been associated with conservative
and incrementalist approaches to adjudication. As
a result, the context or case-specific nature of the
balancing approach ‘blunts the transformative
potential of the Final Constitution’.125
 Fourth, balancing can lead judges to employ
• ‘scientific’ language and concepts, such as cost-
benefit analysis, Woolman and Botha argue, which
‘invites a new type of formalism which, like all
formalist doctrines, tends to eschew dialogue
about important moral and political issues’.126

11.6.2 The purpose of the limitation

The second factor listed in section 36(1) of the Constitution is ‘the
importance of the purpose of the limitation’. This factor is made up of
two separate components: first, the purpose of the limiting measure,
and second, its importance in an open and democratic society.127 At this
stage of the enquiry the purpose of the limiting measure is the focus.
The limiting measure (the aim it is designed to meet) must pursue a
legitimate constitutional purpose.128 In determining whether or not a
particular limiting measure is legitimate, courts must be mindful not to
overstep their role and enter the realm of policy-making.
Determining the purpose of the limiting measure is often
straightforward. This is because it is usually a matter of statutory
interpretation. Determining whether the purpose is legitimate,
however, is not so straightforward. This is because it calls for an
evaluative judgment. Broadly speaking, a limiting measure’s purpose
will be legitimate if it is consistent with the Constitution’s ‘objective,
normative value system’. It will also be legitimate if the purpose of the
limiting measure is closely connected to the fulfilment of a right in the
Bill of Rights or is to fulfil an obligation imposed by the Constitution.129
Examples of purposes that have been held to be legitimate include:
• preventing the use and proliferation of harmful substances130
• reducing unemployment among South African citizens131
• creating and maintaining a disciplined military force132
• maintaining discipline in schools133
• preventing and prosecuting crime134
• promoting national unity135
• preventing and punishing commercial sex (prostitution)136
• promoting the administration of justice137
• protecting children138
• preventing illegal immigration139
• administering the recovery of debts140
• regulating the gambling industry141
• protecting people involved in divorce proceedings142
• protecting schools from any adverse effects that could be caused by
the attachment of school assets.143

One example of a purpose that is not legitimate is retribution for a

violent crime. In S v Makwanye, the Constitutional Court held that
while deterrence may be a legitimate purpose for the death penalty,
retribution is not. This is because it ‘smacks too much of vengeance to
be accepted … as a worthy purpose of punishment in the enlightened
society to which we South Africans have now committed ourselves’.144
Another example is the enforcement of ‘private moral views’. In
National Coalition for Gay and Lesbian Equality v Minister of Justice, the
Constitutional Court held that ‘[t]he enforcement of the private moral
views of a section of the community, which are based to a large extent
on nothing more than prejudice, cannot qualify as such a legitimate
purpose’.145
In some cases the Constitutional Court recognises that the purpose
of legislation limiting a right may be legitimate, but nevertheless holds
that the purpose is not pressing and may not weigh heavily in favour of
justification. In Minister of Justice and Constitutional Development and
Others v Prince (Clarke and Others Intervening); National Director of
Public Prosecutions and Others v Rubin; National Director of Public
Prosecutions and Others v Acton,146 for example, the Court held that the
prohibition on the use, possession, and cultivation of small amounts of
cannabis in private limited the right to privacy. The state argued that the
purpose of the prohibition is the protection of ‘the health, safety and
psychological well-being of persons affected by the use of cannabis’ and
was therefore extremely important. The Court accepted that the
protection of the health and safety of individuals was a legitimate
purpose, but nevertheless pointed out that the history of the regulation
of cannabis use was ‘replete with racism’, and that cannabis has been
widely used by various groups in South Africa. As there has been long-
standing indulgence in the use of the substance by different groups, the
Court suggested that the purpose here may not be as pressing as the
state had claimed.147
Once a court is satisfied that the limiting measure pursues a
constitutionally legitimate purpose, the focus turns to the next stage of
the reasonable and justifiable requirement, namely the rational
connection test.

11.6.3 The rational connection requirement

The fourth factor listed in section 36(1) of the Constitution is ‘the
relation between the limitation and its purpose’. Although this factor
forms a part of the balancing and proportionality proper enquiry, it also
encompasses the rational connection requirement. This requirement
focuses on the relationship between the purpose of the limiting
measure and the means chosen to achieve it and asks whether the
relationship is a rational one.
The rational connection enquiry focuses simply on whether the
means chosen is capable of achieving the purpose of the limiting
measure. If it is capable of doing so, the relationship is rational. If it is
not capable of doing so, the relationship is irrational. At this stage, the
enquiry is neither concerned with whether the means chosen is the
optimum method of achieving the limiting measure nor whether there
are more appropriate methods of doing so.
It is not often that a limiting measure will fail this leg of the test
although there are some examples of it doing so.
In South African National Defence Union v Minister of Defence,148 the
applicant applied for an order declaring section 126B(1) of the Defence
Act149 – which prohibited permanent members of the South African
National Defence Force (SANDF) from forming or joining a trade union
– to be unconstitutional and invalid on the ground that it unjustifiably
infringed section 23(2)(a) of the Constitution. Section 23(2)(a) provides
that ‘[e]very worker has the right to form and join a trade union’.
After finding that the term ‘worker’ in section 23(2)(a) of the
Constitution is broad enough to include soldiers and, consequently,
that the blanket ban in section 126(b)(1) of the Defence Act infringed
section 23(2)(a), the Constitutional Court turned to consider whether
this limitation could be justified in terms of section 36(1). The Court
found that it could not. While section 126(b)(1) of the Defence Act did
have a legitimate objective, namely maintaining a disciplined military
force, the prohibition on permanent members of the SANDF from
joining a trade union was not rationally connected to that objective:
There can be no doubt of the constitutional imperative of maintaining a
disciplined and effective Defence Force. I am not persuaded, however, that
permitting members of the Permanent Force to join a trade union, no matter
how its activities are circumscribed, will undermine the discipline and
efficiency of the Defence Force. Indeed, it may well be that in permitting
members to join trade unions and in establishing proper channels for
grievances and complaints, discipline may be enhanced rather than
diminished. Whether this proves to be the case will depend, of course, on a
variety of factors including the nature of the grievance procedures established,
the permitted activities of trade unions in the Defence Force, the nature of the
grievances themselves and the attitudes and conduct of those involved.150

Further, in S v Bhulwana; S v Gwadiso.151 the accused applied for an

order declaring section 21(1)(a)(i) of the Drugs and Drug Trafficking
Act152 to be unconstitutional and invalid on the ground that it infringed
the right to be presumed innocent guaranteed by section 25(3) of the
interim Constitution. Section 21(1)(a)(i) provided that a person who
was found in possession of more than 115 grams of dagga was
presumed to be a dealer, unless that person could prove that he or she
was not a dealer. In other words, it was a so-called reverse onus
provision.
After finding that section 21(1)(a)(i) of the Drugs Act relieved the
state of proving one of the elements of the crime of dealing in dagga
and, therefore, infringed section 25(3), the Constitutional Court turned
to consider whether this limitation could be justified in terms of section
33(1). The Court found that it could not. ‘Although the need to suppress
illicit drug trafficking [was] an urgent and pressing one, it [was] not clear
how, if at all, the presumption [furthered] such an objective. In
addition, there [appeared] to be no logical connection between the fact
proved (possession of 115 g) and the fact presumed (dealing)’.153
Apart from these two cases, there are other examples of limiting
measures that have failed this basic level of scrutiny.154 The case dealing
with the prohibition on the use, possession and cultivation of cannabis
in private – discussed in the previous section – provides a further
illustration that the court will not necessarily accept claims by the state
that there is indeed a rational relationship between the limitation and
its purpose.155 In the cannabis case, the Constitutional Court pointed
out that there was not a strong relationship between the limitation and
its purpose as there was not sufficient evidence to show that the use,
possession and cultivation of small amounts of dagga in private would
cause the kind of harm claimed by the state. Quoting from a previous
Constitutional Court judgment, the court noted ‘while “prolonged
heavy use or less frequent use of a more potent preparation are
associated with many different problems”, “one joint of dagga or even a
few joints” will not cause any harm’.156 If it would not cause any harm,
there would not be a rational connection between criminalising the use,
possession and cultivation of small amounts of cannabis in private, on
the one hand, and the purpose of protecting the public from the health
consequences of using dagga, on the other hand.
As noted above, it makes little sense to undertake a complex
consideration of the balance to be struck between a right and a limiting
measure which bears no rational relationship to its aim.

11.6.4 Less restrictive, alternative means of achieving the

end
Having established that the reason for limiting the right in question is
constitutionally legitimate and that the limiting measure in question is
rationally connected to that end, a court may proceed to the next stage
of the reasonable and justifiable enquiry and consider the availability of
a less restrictive means.157 This requirement was the only addition the
drafters of section 36(1) of the Constitution made to the factors listed in
Makwanyane.
Often, the question of the availability of less restrictive means is
conflated with the related notion of overbreadth. The notion of
overbreadth is commonly used to refer to limiting measures that ‘cast
the net too widely’ or are not ‘well-tailored’ and limit rights more than is
necessary to achieve their purpose. For example, in Phillips v Director of
Public Prosecutions, section 160 of the Liquor Act prohibited anyone
who was ‘not clothed or not properly clothed’ from performing in
‘entertainment of any nature’ on premises where alcohol was served.
Given that this prohibition applied, not only to striptease bars, but also
to theatres and other bona fide forms of entertainment, the
Constitutional Court held that section 160 cast the net too widely and
limited the right to freedom of expression more than was necessary in
order to achieve its purpose of controlling the harmful effects of
drinking liquor. It could not, therefore, be justified.
At this stage of the reasonable and justifiable enquiry, we are
concerned with the concept of less restrictive means and not with the
concept of overbreadth. The less restrictive means concept considers
the possibility of a hypothetical, alternative measure that is less
restrictive of the right. We may refer to this as the ‘less restrictive,
alternative means’ enquiry. The overbreadth concept considers whether
the limiting measure – considering all the circumstances (and not
merely the effect on the right) – is ‘well-tailored’ in light of all the
relevant circumstances.158 We may refer to this as the ‘well-tailored’
enquiry. This second enquiry can be addressed only as a part of the
balancing and proportionality enquiry when all the relevant factors are
considered and not merely the limiting measure’s effect on the right.
Despite the fact that the Constitutional Court often conflates the two
concepts, there are a number of reasons for, first, maintaining the
distinction between these two related but distinct enquiries and,
second, considering the ‘less restrictive, alternative means’ enquiry
before considering the ‘well-tailored’ enquiry. These reasons are as
follows:
• First, maintaining the distinction addresses the difficult question of
how far the Constitutional Court should go in considering less
restrictive means. Means that are less restrictive will always be
possible to identify but might not – on balance – be proportionate
when considering all the factors at play for example, cost and other
rights. In this sense, a means may not be less restrictive, but may still
be proportional. While the Constitution Court has stated that it is
not its job to find the least restrictive means, it is rightly far less
deferential when considering whether the means chosen by the
legislature are well tailored (proportionate) to their purpose in light
of all the relevant section 36(1) factors.
• Second, maintaining the distinction assists in the proper
formulation of the notion of reasonable accommodation. This
notion, discussed in more detail below, is often understood as a
question of whether there are less restrictive means available.
However, it is better understood as a reverse proportionality
enquiry. In other words, the question is not whether the state has
gone too far in restricting the enjoyment of right (negative
protection), but rather whether the state should have gone further
by taking positive steps to prevent the effective limitation of the right
(positive protection).159 This broader
• enquiry can only be undertaken at the proportionality stage of the
enquiry when all the relevant factors are considered and not merely
the possible impact on the right.

Understanding reasonable accommodation through the lens of less

restrictive means leads to the problem, discussed above, that there are
generally always less restrictive means. This in turn means that a
reasonable accommodation is always notionally possible. However,
when considered as a reverse proportionality enquiry, the question is
not whether less restrictive means can be found but rather whether they
should be employed, taking into consideration all the factors including
the cost to society. Here, too, a court must be careful not to transform its
role into that of policy making.
 Finally, if the distinction is maintained, then the less restrictive,
alternative means enquiry can be viewed as a gentle enticement to the
courts, as well as the executive and the legislature, to look for an
alternative means before resorting to the difficult task of trying to
balance two hard ends. It is an invitation to consider alternative means
that are less restrictive of the right as a factor in the limitation process.
Naturally, this approach makes the most sense when considered before
undertaking a full-blown proportionality enquiry.
Admittedly, if the less restrictive, alternative means enquiry is
distinguished from the well-tailored enquiry and if this stage of the
reasonable and justifiable enquiry focuses simply on less restrictive,
alternative means and not whether the chosen means are well-tailored,
the number of examples of limiting measures failing this stage of the
test will be diminished. In addition, they will also become more difficult
to identify given the tendency to conflate both enquiries. Nevertheless,
there are some cases in which the Constitutional Court favoured the
less restrictive means.
In S v Williams,160 for example, the state argued that juvenile
whipping was justified (under the limitation clause) because it was a
better alternative to custodial sentence, especially when the offence was
not so serious as to justify imprisonment.161 The Constitutional Court,
however, rejected this argument on the ground that there were other
less restrictive, alternative means of achieving the same goal such as a
correctional supervision order linked to a suspended sentence, victim-
offender mediation processes and referral to a juvenile offender school
for a specific purpose.162
Further, in Teddy Bear Clinic for Abused Children v Minister of Justice
and Constitutional Development,163 the state argued that criminalising
consensual sexual conduct between children aged 12 to 15
(adolescents) was justified because it deterred them from prematurely
engaging in potentially harmful sexual conduct. The Constitutional
Court, however, rejected this argument, inter alia, on the ground that
there were less restrictive, alternative means of achieving this goal, for
example, a comprehensive sex education programme.164
11.6.5 Balancing and proportionality proper

11.6.5.1 Introduction
Once it has been determined that the end is legitimate, that the means
meet the end and that the court has declined to raise alternative, less
restrictive means, then at this point there is something worth balancing.
This stage involves balancing and proportionality which turns
intimately on the facts. In broad terms, this stage involves the balancing
of competing goods: the right and the limiting measure that serves a
constitutionally acceptable purpose. In Walters, the Constitutional
Court described this process as follows:
In essence this requires a weighing-up of the nature and importance of the
right(s) that are limited together with the extent of the limitation as against the
importance and purpose of the limiting enactment. Section 36(1) of the
Constitution spells out these factors that have to be put into the scales in
making a proportional evaluation of all the counterpoised rights and interests
involved.165

Before considering how this balancing process might unfold, there are a
few general comments to be made about how the right and the
limitation influence the proportionality process generally.

11.6.5.2 Stacking the rights side of the balancing scales

As far as the rights side of the balancing scales is concerned, there are
two elements to be considered. The first is the relative importance of the
right and, in particular, whether there is a hierarchy of rights. The
question of a hierarchy is controversial and subject to contradictory
judgments. On the one hand, the Constitution itself does not create a
hierarchy of rights166 and the Constitutional Court has on a number of
occasions denied that any such hierarchy exists.167 On the other hand,
when it comes to the limiting of certain rights, the Court has on a
number of occasions suggested that there is, in fact, some form of
hierarchy.
In National Coalition for Gay and Lesbian Equality, for example, the
Constitutional Court held that ‘[a]lthough section 36(1) does not
expressly mention the importance of the right, this is a factor which
must of necessity be taken into account in any proportionality
evaluation’. And in Makwanyane, the Court stated that ‘[t]he rights to
life and dignity are the most important of all human rights …’168 The
same point was made in Bhe v Khayelitsha Magistrate:169
The rights violated are important rights, particularly in the South African
context. The rights to equality and dignity are of the most valuable of rights in
any open and democratic state. They assume special importance in South
Africa because of our past history of inequality and hurtful discrimination on
grounds that include race and gender.170

At other times, the Constitutional Court has held that certain rights are
not paramount, implying some form of hierarchy.171 Similarly, the
courts have noted that we do not place the same premium on privacy as
other countries.172 If there is some hierarchy of rights, then logically
those rights which arefor example, the limiting measuredirectly based
on the founding constitutional values of dignity, freedom and equality
are likely to receive greater attention than others.
The second and more difficult element of the rights side of the scale
is determining which portion of the right the limiting measure strikes at.
Does it strike at the core of the right or its periphery (or ‘penumbra’)?
Or, to put it another way, what is the ‘extent of the limitation’, which is
one of the factors listed in section 36(1).173 The answer to this question
has as much to do with the nature of the right as it does the limitation
(not every right is capable of part-infringement).
If the first stage of the two-stage enquiry is comprehensive, then the
groundwork for this aspect of the limitation analysis will already have
been covered in that the content and scope of the right in question will
have been examined in some detail. What is left then is to locate the
impact of the limiting measure on the right and assign it a nominal
value to be balanced against the competing value of the limiting
measure. Unfortunately, as part of a more general reluctance to give
content to rights,174 the Constitutional Court has refused to undertake a
detailed analysis of the core and periphery of each right on a number of
occasions.
 The impact that the limiting measure has on the right is a
particularly important aspect of the proportionality enquiry. This is
because is sets the bar to be met by the justification.175 In other words,
the point of reference is the right itself. As the Constitutional Court itself
stated in S v Manamela (Director-General of Justice Intervening),176 the
greater the impact is, the more convincing the justification for the
limitation must be:
As a general rule, the more serious the impact of the measure on the right, the
more persuasive or compelling the justification must be. Ultimately, the
question is one of degree to be assessed in the concrete legislative and social
setting of the measure, paying due regard to the means which are realistically
available in our country at this stage, but without losing sight of the ultimate
values to be protected.177

11.6.5.3 Stacking the limiting measure’s side of the balancing

scales
Once the importance of the right and the extent of the limitation are
stacked on one end of the balancing scale, the opposing end is to be
filled with the limiting measure. As noted above, there is little point in
undertaking a balancing process in respect of a limiting measure that
has been found either not to be rationally connected to a
constitutionally acceptable purpose, or which can be reached through
other, less restrictive means (although this has not stopped the
Constitutional Court from doing so). Therefore, a proper balancing
exercise involves a limiting measure that meets this minimum, internal
threshold. What is left to consider are the external aspects of the
limitation: a more thorough consideration of its objectives and aims in
an open and democratic society based on human dignity, equality and
freedom.
At this point, the analysis can become complicated by the influence
of other rights implicated by the limiting measure or, more specifically,
its purpose. In Christian Education, for example, the limiting measure –
the ban on corporal punishment in schools – was designed to protect
the dignity of children.178 Apart from taking into account the
implications of the limiting measure for other rights, at this point in the
balancing and proportionality enquiry the Constitutional Court often
looks at the approach adopted in other open and democratic societies
to determine the weight to be attached to the limiting measure and the
public interest it seeks to achieve or protect.179 The Court has engaged in
this sort of comparative review in a number of significant cases,
including National Coalition of Gay and Lesbian Equality180 and
Prince.181

11.6.5.4 Balancing and proportionality proper

Once the Constitutional Court has weighed the right and the limiting
measure in their fullest sense and has taken into account the
implications for other rights, then it is left to resolve the conflicting ends
using the balancing and proportionality metaphors. When it comes to
this stage, there are broadly two possible arguments available to the
Court:
• First, the Court may conclude that the limitation is justifiable
because its effect on the right is proportionate.182 This, in practice,
often involves a finding that the measure strikes the periphery of the
right, making its limitation easier to justify.
• Alternatively, the Court may decide that the limitation is not
justifiable, in other words the right must prevail. The reason may be
because:
◆ the effect on the right is disproportionate to the good achieved
by the measure; and/or
◆ the means chosen is disproportionate in the sense that it is not
well-tailored to the purpose.

When the measure is held to be reasonable and justifiable, or

proportionate to the impact on the right and its importance, this is
balancing in its purest sense: where ‘one right (or interest or value) will
simply “outweigh” another right (or interest or value)’.183 Unfortunately,
the Court has been reluctant to make a hard choice of one fixed,
compellingly important ‘good’ (in this case the limiting measure) over
another (the right). Instead, it has tended (at times simultaneously) to
devalue the rights side of the scale, most often by minimising the
impact of the limiting measure on the right. Alternatively, it has
elevated the limitation side, often by underlining the social good
achieved by the measure.
In De Reuck v Director of Public Prosecutions,184 for example, the
Constitutional Court found that although a statutory provision
prohibiting the possession of child pornography infringed the right to
freedom of expression in section 16 of the Bill of Rights, this limitation
was reasonable and justifiable. In arriving at this decision, the Court
focused on the impact of the limiting measure on the right. It noted that
pornography ‘does not implicate the core values of the right’. Instead, it
is ‘expression of little value which is found on the periphery of the
right’.185 Against this, it weighed the compelling interest of protecting
children, as well as the dignity of society as a whole,186 and concluded
that the peripheral infringement of the right was outweighed by the
interests protected by the limiting measure.187

How should the Constitutional Court make

hard choices?
Woolman and Botha set out the complexities of
making hard choices as follows:
How should the Court handle hard choices? First, the Court must
be candid and recognise that there will be situations in which
constitutional goods will urge independent and irreconcilable
claims upon us: In such situations, we will have to choose
between incommensurable goods. Second, the Court must
acknowledge that it lacks a set of second-order rules which might
tell us how to reconcile competing goods with one another. Most
importantly, the Court must not view the choice of one good over
another good in hard cases as arbitrary. Instead, it must be
candid about the reasons for its choices and hope that its
candour about the reasons for its choices ultimately reflects the
exercise of good judgment: for only such candour will allow the
litigants to become full citizens through their participation in the
process of giving the basic law meaning. This recognition, in turn,
holds out the promise that the basic law will come to possess the
normative legitimacy associated with a just legal order.188
When the limiting measure is found to be unjustifiable and therefore,
unconstitutional, this too is often because the effect on the right is
deemed disproportionate or unjustifiable in light of the good achieved
by the measure. It may also be because the right is too important and
the effect on it too great and/or because the good achieved by the
measure is not sufficiently meritorious.
In Islamic Unity Convention v Independent Broadcasting
Authority,189 for example, the Constitutional Court found that a
legislative provision prohibiting the broadcasting of any material ‘likely
to prejudice relations between sections of the population’ unjustifiably
infringed the right to freedom of expression and struck it down. In
arriving at this decision, the Court held that ‘[t]he inroads on the right
to freedom of expression made by the prohibition on which the
complaint is based are far too extensive and outweigh the factors
considered by the Board as ameliorating their impact’.190
Similarly, in Potgieter v Lid van die Uitvoerende Raad: Gesondheid,
Provinsiale Regering Gauteng,191 the Constitutional Court found that
section 68(4) of the Mental Health Act,192 which provided a three-month
prescription period for legal proceedings to be brought against any
person in respect of acts performed under the Act, unjustifiably
infringed the right of access to court. In arriving at this decision, the
Court held that the limitation was ‘particularly outrageous and drastic,
having regard to the category of persons it strikes’.193
Apart from failing the balancing test because it is disproportionate,
the limiting measure is also often found to be unjustifiable and,
therefore, unconstitutional because the means chosen to achieve the
end cast the net too widely or are not well tailored to their purpose.
In Islamic Unity Convention, for example, the Constitutional Court
held that ‘[i]t has … not been shown that the very real need to protect
dignity, equality and the development of national unity could not be
adequately served by the enactment of a provision which is
appropriately tailored and more narrowly focussed’.194 Similarly, in
South African Defence Union, the Court found that a legislative
provision195 that limited the right to freedom of expression by
prohibiting members of the SANDF from performing any ‘act of public
protest’ was not reasonable and justifiable as it ‘goes far further than is
necessary to ensure [its] end’.196 And in Coetzee v Government of the
Republic of South Africa; Matiso v Commanding Officer Port Elizabeth
Prison,197 the Court held that ‘although [the] objective of enforcing
judgment debts was legitimate and reasonable, the means chosen were
not reasonable … because the provisions were overbroad, catching not
only those who would not pay, but also those who could not’.198

11.6.5.5 Reasonable accommodation

Finally, the notion of reasonable accommodation requires special
consideration. At the heart of this notion lies the right to be different. In
Christian Education South Africa, the Constitutional Court summed up
the question as follows:
The underlying problem in any open and democratic society based on human
dignity, equality and freedom in which conscientious and religious freedom
has to be regarded with appropriate seriousness, is how far such democracy
can and must go in allowing members of religious communities to define for
themselves which laws they will obey and which not. Such a society can cohere
only if all its participants accept that certain basic norms and standards are
binding. Accordingly, believers cannot claim an automatic right to be
exempted by their beliefs from the laws of the land. At the same time, the state
should, wherever reasonably possible, seek to avoid putting believers to
extremely painful and intensely burdensome choices of either being true to
their faith or else respectful of the law.199

Conceptually, the notion of reasonable accommodation is unique

because it is an exercise in reverse proportionality. This is done by
shifting the focus of the enquiry from the justifiability of the limiting
measure to the justifiability of the effect of that measure on a particular
group or individual. As Sachs J noted in Christian Education:
In the present matter it is clear that what is in issue is not so much whether a
general prohibition on corporal punishment in schools can be justified, but
whether the impact of such a prohibition on the religious beliefs and practices
of the members of the appellant can be justified under the limitations test of
section 36. More precisely, the proportionality exercise has to relate to whether
the failure to accommodate the appellant’s religious belief and practice by
means of the exemption for which the appellant asked, can be accepted as
reasonable and justifiable in an open and democratic society based on human
dignity, freedom and equality.200
Similarly, in Prince, the Constitutional Court phrased its task as
deciding whether or not ‘the failure to provide an exception in respect
of the use of cannabis for religious purposes by Rastafari infringed their
religious rights under the Constitution’.201 The question the Court must
address is not whether the state has gone too far in restricting the
enjoyment of a right (negative protection), but rather whether the state
should have gone further by taking positive steps to prevent the
effective limitation of a right (positive protection).202 It is about the
failure of the state to act in light of the proportional effect on the right,
not the measures already taken.203
It is difficult to draw lines around how the reasonable
accommodation test works in practice. However, the Constitutional
Court set out some ground rules in MEC for Education: KwaZulu-Natal
v Pillay.204 In this case, the Court had to decide whether a school was
required reasonably to accommodate a learner’s desire to wear a nose
stud in pursuit of her rights to religion and culture. It considered first
the importance of the practice to the learner and second, the ‘hardship
that permitting her to wear the stud would cause the school’.205
In respect of the importance of the practice to the learner, the Court
found that ‘[p]reventing her from wearing it for several hours of each
school day would undermine the practice and therefore constitute a
significant infringement of her religious and cultural identity’.206 In
respect of the effect on the school of permitting the learner to wear the
nose stud, the Court found that accommodating the practice would not
impose ‘an undue burden upon the school’.207
As a result, the balance was tipped in favour of the learner being
allowed to wear the nose stud. The Court ordered the school to make a
‘reasonable accommodation’ of this practice.208 Clearly, in addressing
the notion of reasonable accommodation, courts must be mindful of
the separation of powers. As Sachs J noted in Prince:
The search for an appropriate accommodation in this frontier legal territory
accordingly imposes a particularly heavy responsibility on the courts to be
sensitive to considerations of institutional competence and the separation of
powers. Undue judicial adventurism can be as damaging as excessive judicial
timidity.209
 Applying the notion of reasonable
accommodation
The notion of reasonable accommodation applies in
two distinct contexts. First, it can apply in cases where
a court has to decide whether discrimination is either
fair or unfair and hence in breach of section 9 of the
Constitution or the relevant section of the Promotion of
Equality and Prevention of Unfair Discrimination Act
(PEPUDA). Second, it can apply when dealing with the
justificatory stage to determine whether the limitation
was justifiable or not.
In the second context, the question focuses on
whether the state has done enough to accommodate
the interests of the person or group who claims that
their rights have been infringed. Put differently, where a
law of general application infringes on a right, the
question is whether this infringement is justifiable
because the law has reasonably accommodated the
interests of those whose rights are being infringed by
the legislative provision. In such cases, the burden of
proof, discussed in the next section, becomes
important.

11.7 The burden of justification

The jurisprudence of the Constitutional Court on the question of
whether there is a burden of justification on the party seeking to rely
on the limiting measure to justify it under section 36(1) is complex. The
general principle was set out by Chaskalson P in Makwanyane when he
held that ‘[i]t is for the legislature, or the party relying on the legislation,
to establish this justification, and not for the party challenging it to
show that it was not justified’.210 This has been repeated in a number of
subsequent cases.
 The difficulty arises when the state or the private person relying on
the limiting measure makes an unsatisfactory attempt at justifying it
under section 36(1) or makes no attempt at all. If the burden of
justification was applied strictly, in other words as an onus in the proper
sense, then in such a case the limitation would fail. However, the
Constitutional Court has pointed out on several occasions that this is a
unique form of onus, an ‘onus of a special type’.211
What is required under this special type of onus is less clear. In
Moise v Greater Germiston Transitional Local Council,212 the
Constitutional Court noted:
It is also no longer doubted that, once a limitation has been found to exist, the
burden of justification under s 36(1) rests on the party asserting that the
limitation is saved by the application of the provisions of the section. The
weighing up exercise is ultimately concerned with the proportional assessment
of competing interests but, to the extent that justification rests on factual
and/or policy considerations, the party contending for justification must put
such material before the Court. It is for this reason that the government
functionary responsible for legislation that is being challenged on
constitutional grounds must be cited as a party. If the government wishes to
defend the particular enactment, it then has the opportunity – indeed an
obligation – to do so. The obligation includes not only the submission of legal
argument but the placing before Court of the requisite factual material and
policy considerations. Therefore, although the burden of justification under s
36 is no ordinary onus, failure by government to submit such data and
argument may in appropriate cases tip the scales against it and result in the
invalidation of the challenged enactment.213

And in Minister of Home Affairs v National Institute for Crime

Prevention and the Re-Integration of Offenders (NICRO),214 the
Constitutional Court laid down some general principles:
Where justification depends on factual material, the party relying on
justification must establish the facts on which the justification depends.
Justification may, however, depend not on disputed facts but on policies
directed to legitimate governmental concerns. If that be the case, the party
relying on justification should place sufficient information before the court as
to the policy that is being furthered, the reasons for that policy, and why it is
considered reasonable in pursuit of that policy to limit a constitutional right.
That is important, for if this is not done the court may be unable to discern what
the policy is, and the party making the constitutional challenge does not have
the opportunity of rebutting the contention through countervailing factual
material or expert opinion. A failure to place such information before the
 court, or to spell out the reasons for the limitation, may be fatal to the
justification claim. There may however be cases where despite the absence of
such information on the record, a court is nonetheless able to uphold a claim of
justification based on common sense and judicial knowledge.215

In these two judgments the Constitutional Court distinguishes between

three species of justification arguments, namely legal arguments,
factual arguments and policy-based arguments, and appears to suggest
that the onus will differ depending on which form (or forms) of
argument are being applied. In those cases in which the state or the
private person relying on the limitation clause has failed to make a
justificatory legal argument, the failure to do so may not be fatal. This is
because the Court can come to the assistance of that party by
identifying relevant legal arguments itself. However, in those cases in
which the state or the private party relying on the limitation clause has
failed to make a justificatory factual or policy-based argument, the
failure to do so usually is fatal, unless the Court is able to uphold the
justification claim on the basis of common sense or judicial knowledge.
The fatal consequences of failing to make justificatory factual or
policy-based arguments are clearly illustrated in S v Steyn.216 In this
case, sections 309B and 309C of the Criminal Procedure Act provided
that an accused who had been convicted or sentenced in a magistrate’s
court could appeal against that conviction or sentence only if he or she
had first been granted leave to do so by that court or by the High Court.
The applicant applied for an order declaring sections 309B and C to be
unconstitutional and invalid on the ground that they unjustifiably
infringed section 35(3)(o) of the Constitution which provides that
‘[e]very accused person has a right to a fair trial, which includes the
right … of appeal’.
Apart from arguing that sections 309B and C did not infringe section
35(3)(o), the state argued that even if they did, this limitation was
reasonable and justifiable because it was aimed at preventing the
clogging of appeal roles and ensuring that hopeless appeals did not
waste valuable court time. While these goals were legitimate in an open
and democratic society, the Court held, the state had failed to adduce
any evidence proving that appeal rolls were clogged or what the impact
of hopeless appeals was on the courts. Without this sort of factual
evidence, it was impossible to determine whether sections 309B and C
were capable of achieving their goals and thus whether they were
reasonable and justifiable.217 The Court put it as follows:
The state has failed to adduce any evidence on the clogging of appeal rolls, the
impact of unmeritorious appeals, and the existence of any resource-related
problems or other relevant considerations that could justify the existence of the
procedure introduced by sections 309B and 309C. Clearly it was incumbent on
the state to establish factors that justify these limitations of the right of appeal.
… In the present case, the state produced no such data, nor did it refer to any
objectively determinable factors that could be considered in justification of the
challenged provisions.218

A more recent example can be found in Teddy Bear Clinic for Abused
Children v Minister of Justice and Constitutional Development.219 In this
case, section 15 and 16 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act220 created the offences of statutory
rape and statutory sexual assault respectively. These offences made it a
crime for children aged 12 to 15 years (adolescents) to engage in
consensual sexual conduct – including hugging, kissing, masturbation
and sexual intercourse – with each other. The applicants applied for an
order declaring sections 15 and 16 of the Sexual Offences Act to be
unconstitutional and invalid on the grounds that the infringed
children’s rights to dignity and privacy, as well as the best interest of the
child principle.
Apart from arguing that sections 15 and 16 of the Sexual Offences
Act did not infringe these rights, the state argued that even if they did,
this limitation was reasonable and justifiable because it was aimed at
deterring adolescents from prematurely engaging in consensual sexual
conduct which could harm their development and increase the risks
associated with sexual conduct, for example unwanted pregnancy and
sexually transmitted disease. In response to this argument, the
applicants presented expert evidence in court that showed that sections
15 and 16 would not deter adolescents from engaging in harmful sexual
conduct. Instead, they did the opposite and increased the likelihood of
adolescents engaging in unsafe sexual conduct. It followed, therefore,
that the offences created by sections 15 and 16 were not rationally
related to their purpose.221
The Constitutional Court accepted the applicant’s argument largely
on the ground that the state had failed to adduce any evidence
supporting its arguments or challenging the applicant’s expert
evidence. The Court, therefore, was left with no choice but to accept the
evidence present by the applicant’s experts.222 In arriving at this
conclusion, the Court noted the following:
where a justification analysis rests on factual or policy considerations, the
party seeking to justify the impugned law – usually the organ of state
responsible for its administration – must put material regarding such
considerations before the court. Furthermore, “[w]here the state fails to
produce data and there are cogent objective factors pointing in the opposite
direction the state will have failed to establish that the limitation is reasonable
and justifiable”.223

Finally, it must be noted that even in those cases where the

Constitutional Court is able to come to the assistance of a party on the
basis of common sense or judicial knowledge, it is not always willing to
do so. For example, in Centre for Child Law v Minister of Justice and
Constitutional Development,224 the Constitutional Court, having
criticised the state’s attempts at justification, found that ‘no
maintainable justification has been advanced’ for including children in
the minimum sentencing regime for certain offences.225

11.8 Special limitations

Section 7(3) of the Constitution distinguishes between limitations
authorised by section 36 and limitations authorised ‘elsewhere’ in the
Bill of Rights. The limitations authorised elsewhere in the Bill of Rights
create special criteria for the limitation of specific rights and are
commonly referred to as special limitation clauses. Like the general
limitation clause, therefore, special limitations must be applied at the
second stage of the two-stage enquiry.226
The criteria created by special limitations do not replace the general
limitation clause, but rather interact with it by clarifying, extending or
restricting one or more of the elements of section 36(1). A special
limitation clause, therefore, may contain details relating to the type of
law that may limit a right, the purpose for which a right may be limited,
the relationship between the limitation and its purpose and the
circumstances in which a right may be limited.227
Section 22, for example, extends the type of law which may limit the
right to freedom of trade, occupation and profession. It provides in this
respect that the practice of a trade, occupation or profession may be
regulated simply ‘by law’. For its part, section 25(2) restricts the
purpose for which property may be expropriated. It provides that
property may be expropriated only for a ‘public purpose or in the public
interest’. And section 15(3) identifies the circumstances in which the
right to freedom of religion may be limited, namely when national
legislation recognises marriages conducted under any tradition or
system of religious, personal or family law, or systems of personal and
family law.
As Rautenbach and Venter point out, sometimes a special limitation
clause simply reiterates or refers to the general limitation clause without
clarifying, extending or restricting any of its elements. This may be as a
result of the ‘complicated compromises reached during the
negotiations or careless drafting’.228 Section 23(5), for example, provides
that national legislation may regulate the right to engage in collective
bargaining, provided that any regulation that limits that right complies
with section 36(1).

The interaction between legislation giving

effect to specific rights and the limitation
clause
A number of provisions in the Bill of Rights impose an
obligation on the legislature to pass legislation to give
effect to specific rights. For example, section 9(4)
provides that ‘[n]ational legislation must be enacted to
prevent or prohibit unfair discrimination’ and section
33(3) provides, inter alia, that ‘[n]ational legislation
must be enacted to give effect to the right to just
administrative action’.
Although they will be dealt with in more detail in
other chapters, brief mention must be made of the
interaction between such legislation and the limitation
clause. In Pillay,229 the Constitutional Court held that
the general principle governing the relationship
between such legislation and the right it gives effect to
is that the ‘courts must assume that the [legislation] is
consistent with the Constitution and claims must be
decided within its margins’.230 An important
consequence of this general principle is that ‘a litigant
cannot circumvent legislation enacted to give effect to
a constitutional right by attempting to rely directly on
the constitutional right’,231 but must challenge the
legislation in its entirety if they are not happy with it.
Although the limitation aspect is given less
attention, logically both the application and the
limitation of a right must be addressed with the
margins of the relevant piece of legislation. As a result,
aspects of the section 36(1) enquiry are often
incorporated in substance in provisions of such
legislation. For example, under the Promotion of
Administrative Justice Act (PAJA),232 ‘the requirements
of fair administrative procedure contemplated in s 3(2)
may be departed from where it is reasonable and
justifiable to do so’,233 taking into account, among
others, the object of the empowering provision and the
nature and the purpose of the decision. Here a court
must use section 36(1) in substance to interpret a
provision of PAJA, a piece of legislation. Similarly,
section 14 of the PEPUDA234 sets out the requirements
for determining whether discrimination is unfair. This
closely maps the questions asked under section 36,
including the notion of reasonable accommodation.
 This approach does not mean that the right falls
away entirely. Rather, it will remain relevant, whether
expressly or by implication, to the interpretation of the
legislation in question. As the Court held in National
Education, Health & Allied Workers Union (NEHAWU) v
University of Cape Town235 in the context of the Labour
Relations Act (LRA):236
[T]he LRA gives content to section 23 of the Constitution and
must therefore be construed and applied consistently with that
purpose. Section 3(b) of the LRA underscores this by requiring
that the provisions of the LR must be interpreted “in compliance
with the Constitution”.237

This opens up the possibility of section 36(1) having

an interpretive influence on the correlative limitations
provisions of the legislation in question. For example,
in MEC: Department of Agriculture, Conservation and
Environment v HTF Developers (Pty) Ltd,238 one of the
few Constitutional Court cases that deals with section
24, Ngcobo J wrote:
Of course procedural fairness as envisaged in section 33 of PAJA
is flexible. In the case of section 33, the right to just
administrative action may be limited under section 36(1). In the
case of PAJA, the requirements of fair administrative procedure
contemplated in section 3(2) may be departed from where it is
reasonable and justifiable to do so. Factors that are relevant to
the question whether there should be a departure include the
objects of the empowering provision; the nature and the purpose
of the decision; and the urgency of taking the decision or the
urgency of the matter.239

11.9 The limitation of rights by other constitutional

provisions
Apart from the general limitation clause in section 36(1) of the
Constitution, section 36(2) provides that the rights protected in the Bill
of Rights may also be limited by ‘any other provision of the Constitution’.
The most prominent example of a right being limited by another
provision of the Constitution may be found in Azanian Peoples
Organisation (AZAPO) v President of the Republic of South Africa.240
In this case, the applicant applied for an order declaring section
20(7) of the Promotion of National Unity and Reconciliation Act241 to be
unconstitutional and invalid on the grounds that it unjustifiably
infringed the right of access to court guaranteed in section 22 of the
interim Constitution. Section 20(7) of the Act provided that a person
who was granted amnesty by the Truth and Reconciliation Commission
for a politically motivated act, omission or offence committed between
1960 and 1993 could not be held criminally or civilly liable for that act,
omission or offence.
The Constitutional Court dismissed the application. In arriving at
this conclusion, it held that if section 20(7) of the Act did infringe the
right of access to court, that limitation was authorised by the epilogue of
the interim Constitution, which specifically dealt with the issue of
amnesty.242 ‘In order to advance … reconciliation and reconstruction’,
the Court held, the epilogue expressly authorised Parliament to adopt a
law conferring amnesty on wrongdoers in ‘respect of acts, omissions
and offences associated with political objectives and committed in the
course of the conflicts of the past’.
A different, but related issue is whether a right protected by the Bill
of Rights can be infringed by another provision of the Constitution and,
if so, whether that limitation may be justified in terms of section 36(1) or
any other provision of the Constitution. This issue arose for the first
time in South African Broadcasting Corporation (SABC) Limited v
National Director of Public Prosecutions.243
In this case, the Constitutional Court had to determine whether a
decision taken by the Supreme Court of Appeal in terms of section 173
of the Constitution to prohibit the SABC from broadcasting its appeal
proceedings live on television and radio was constitutionally valid or
not. Section 173 of the Constitution provides that ‘[t]he Constitutional
Court, the Supreme Court of Appeal and the High Court of South Africa
each has the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of
justice’.
Given that the Supreme Court of Appeal’s decision clearly infringed
the right to freedom of expression in section 16 of the Bill of Rights, the
key question the Constitutional Court had to answer was whether this
limitation was justifiable. The Court held that in order to answer this
question it had to determine whether the decision to prohibit live
broadcasting was proportional. Although the Court found that it was
proportional,244 it did not refer expressly to either section 36(1) or any
other provision of the Constitution as the source for this test.245 It is not
clear, therefore, what the textual basis is for the Court’s proportionality
assessment.
In his minority judgment, Moseneke DCJ initially appeared to
suggest that the test for proportionality is not drawn from section 36(1).
This is because he expressly drew a distinction between the limitation of
a right by ‘relying on the power to regulate procedure under section
173’ of the Constitution and the limitation of rights by relying ‘on a law
of general application’ that confers a discretion to limit an entrenched
right. Later in his judgment, however, Moseneke DCJ went on to insist
that ‘at a bare minimum, the limitations must, in substance, fall within
the bounds imposed by s 36(1)’.246 In other words, he ultimately appears
to have rejected the argument that section 173 is a self-standing source
for limiting rights.
The same issue arose again in Independent Newspapers (Pty) Ltd v
Minister of Intelligence Services (Freedom of Expression Institute as
Amicus Curiae): In re Masetlha v President of the Republic of South
Africa.247 In this case, the Constitutional Court confirmed that a decision
taken in terms of section 173 of the Constitution to restrict the
disclosure of material will be justifiable only if it is proportional.248 As
Du Plessis and Penfold note, the decision to use section 173 as the basis
for limiting the right to open justice in this case was surprising. This is
because the judgment, which was written by Moseneke DCJ,
contradicted the approach he had adopted previously in his minority
judgment in SABC.249
The use of proportionality by the Constitutional Court in both these
cases suggests it is applying section 36(1) of the Constitution. However,
it seems unwilling to do so formally. The difficulty with the Court’s
approach is that it grants courts considerable power to infringe rights
under section 173 without comparable protection. As Yacoob J noted in
his dissent in Independent Newspapers, ‘[i]t is difficult to justify a regime
in which a court can limit rights more easily than a legislature can’.250

SUMMARY

When a person challenges a law on the grounds that it infringes one or

more of the rights protected in the Bill of Rights, a court has to perform
two tasks. First, the court must determine whether the law being
challenged limits any of the substantive rights protected by the Bill of
Rights. If it does, the court has to go on to determine whether the
limitation is justifiable. A limitation will be justifiable if it satisfies the
requirements of the general limitation clause (section 36(1)) and, where
necessary, a special limitation clause.
When it came to interpreting and applying the general limitation
clause, most commentators expected the Constitutional Court to follow
the sequential and structured approach adopted by the Canadian
Supreme Court in R v Oakes. In its seminal decision in S v Makwanyane,
however, the Constitutional Court rejected this approach and adopted a
singular global approach in terms of which certain factors are
considered. This singular global approach is usually referred to as a
balancing or proportionality test.
Unfortunately, it is not always clear what this balancing or
proportionality test requires. In order to make it simpler to understand
this test, the factors listed in the general limitation clause have been
divided into four questions. These questions are as follows:
• What is the purpose of the limitation? Is it legitimate in an open and
democratic society based on human dignity, equality and freedom?
• What is the relationship between the limitation and its stated
purpose? Is there a rational relationship between the limitation and
its stated purpose?
• Are there clear, alternative means available to achieve the stated
purpose that are less restrictive of the full enjoyment of the
 protected right?
• Is the legitimate, rationally based limiting measure a proportionate
limitation on the protected right, taking into account the degree of
infringement, the nature of the protected right, the breadth of the
measure and the social good it achieves? This may be referred to as
balancing and proportionality proper.

The aim of this chapter is not to alter substantively the limitation

analysis and especially the second stage of the limitation analysis.
Instead, it is to make the balancing or proportionality test more
accessible by providing a simplified lens through which to view the
numerous decisions involving limitation and to understand the
different types of limitation analysis undertaken by the courts.

1 Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000
(4) SA 757 (CC); 2000 (10) BCLR 1051 (18 August 2000).
2 Cheadle, H ‘Limitation of rights’ in Cheadle, H, Davis, D and Haysom, N (eds) (2002) South
African Constitutional Law: Bill of Rights at 30–2.
3 Cheadle (2002) 30–3.
4 (CCT 36/08) [2009] ZACC 8; 2009 (4) SA 222 (CC); 2009 (7) BCLR 637 (CC) (1 April 2009).
See also Johncom Media Investments Ltd v M (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7
(CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 22; Director of Public Prosecutions para
141; Ex parte Minister of Safety and Security: In re S v Williams (CCT20/94) [1995] ZACC 6;
1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC) (9 June 1995) para 26; Moise v Greater
Germiston Transitional Local Council: Minister of Justice and Constitutional Development
Intervening (Women’s Legal Centre as Amicus Curiae) (CCT 54/00) [2001] ZACC 21; 2001 (4)
SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001) para 7; Williams para 54; Coetzee v
Government of the Republic of South Africa; Matiso and Others v Commanding Officer Port
Elizabeth Prison and Others (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (4) SA 631 (CC);
1995 (10) BCLR 1382 (CC) (22 September 1995) para 9; AB and Another v Minister of Social
Development (CCT155/15) [2016] ZACC 43; 2017 (3) SA 570 (CC); 2017 (3) BCLR 267 (CC)
(29 November 2016); Minister of Justice and Constitutional Development and Others v
Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others
v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018]
ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (18 September 2018) paras 59–
82; Centre for Child Law and Others v Media 24 Limited and Others (CCT261/18) [2019]
ZACC 46; 2020 (4) SA 319 (CC); 2020 (3) BCLR 245 (CC) (4 December 2019) paras 52–60.
5 Director of Public Prosecutions, Transvaal para 41.
6 Rautenbach, I (2011) ‘Introduction to the Bill of Rights’ in Bill of Rights Compendium (Issue
29) at 1A–82.
7 Constitution of the Republic of South Africa, Act 200 of 1993.
 (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757 (CC); 2000 (10) BCLR 1051 (CC) (18 August
8 2000).
9 Act 84 of 1996.
10 Christian Education South Africa para 27.
11 Currie I and De Waal J (2013) The Bill of Rights Handbook 6 ed 153, fn 11.
12 S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC) (6
June 1995) para 100.
13 Makwanyane para 104.
14 Article 1 of the Canadian Charter of Rights and Freedoms states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society. Part 1 of the Constitution Act (1982).
15 Regarding the evolution of s 33(1), Woolman and Botha note:
The basic form of the interim Constitution’s limitations clause did not change over the
course of the 12 reports generated by the Multi-Party Negotiating Forum’s Technical
Committee on Fundamental Rights. In its second report, the Committee identified
what it believed to be the primary features of a limitations clause: (a) a ‘law of general
application’ threshold test; (b) a reasonableness requirement; (c) a necessity
requirement; (d) a ‘justifiable in a free, open and democratic society’ requirement; (e)
a proportionality or balancing approach; (f ) a ‘non-derogation from the essential
content of the right’ requirement; and (g) an immunisation of select rights from any
limitation at all. With the exception of the last characteristic, all of these attributes
appear in one form or another in the 12th and final version of the Interim
Constitution’s limitations clause.
See Woolman, S & Botha, H ‘Limitations’ in S Woolman, T Roux & M Bishop (eds) (2013)
Constitutional Law of South Africa 2nd ed rev service 5 34.10–34.11. For a discussion of the
limitations clause under the interim Constitution (s 33) see White, J (1994) Constitutional
Litigation and Interpretation, and Fundamental Rights Annual Survey of South African Law
35–6.
16 These rights were listed as those in ss 10 (human dignity), 11 (freedom and security of the
person), 12 (servitude and forced labour), 14(1) (religion, belief and opinion), 21 (political
rights), 25 (detained, accused and arrested person’s rights) or 30(1)(d) or (e) or (2)
(children’s rights) and ss 15 (freedom of expression), 16 (assembly, demonstration and
petition), 17 (association), 18 (movement), 23 (access to information), or 24 (administrative
justice) in so far as such right relates to free and fair political activity.
17 For a more detailed discussion of the evolution of s 33(1), see Woolman and Botha (2013).
18 The German test was described by the Constitutional Court in S v Makwanyane (CCT3/94)
[1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) (6 June 1995) para 108 as
follows:
It has regard to the purpose of the limiting legislation, whether the legislation is suitable for
the achievement of such purpose, is necessary therefor, and whether a proper balance has
been achieved between the purpose enhanced by the limitation, and the fundamental right
that has been limited.
19 132 (1986) 19 CRR 308 (SCC). This judgment was also favourably quoted in Makwanyane
para 105.
20 Oakes para 70.
 S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)
21 (6 June 1995).
22 Makwanyane para 104.
23 Makwanyane para 104 [our emphasis] The reformulation was welcomed by some
commentators at the time. Bronstein and Robinson, for example, argued that ‘[h]ere the
court acknowledges one’s intuitive sense that the effect of the proportionality test used in
analysing rights and their limitations does not depend on the wording of the limitation
clause in an individual case. The best interpretation of the statement quoted above is that
the rights in the Bill of Rights are not weakened by the omission of the word ‘necessary’. The
implication is that it does not make a difference whether the operative words in the
limitation clause are ‘necessary’ or ‘reasonable and justifiable’. This pronouncement should
be interpretively important in the future’ (see V Bronstein and K Robinson ‘Constitutional
jurisprudence and the Bill of Rights’ (1996) Juta’s Annual Survey of South African Law 53).
24 In doing so the Constitutional Court took its lead from the German Constitution Court
which, Chaskalson J remarked in Makwanyane, ‘also has a provision similar to section
33(1)(b) of our Constitution, but the Court apparently avoids making use of this provision,
preferring to deal with extreme limitations of rights through the proportionality test’ (para
108).
25 At the time s 36(1) was drafted, the exact phraseology was contested and confused. As the
Annual Survey of South African Law noted at the time: ‘While the section in the Working
Draft on the limitation of rights was replete with alternative constructions providing that a
right may be limited only to the extent that it is “reasonable/reasonable and
justifiable/reasonable and necessary/ necessary/justifiable” (s 35(1)(a), Working Draft), in
the end the Constitutional Assembly settled for the reasonable and justifiable formulation
(s 36(1), new Constitution) despite some rather puerile debate in which it seemed as if the
constitutional experts did not really seem to have an opinion as to whether there was any
significant point to the different formulations. This particular debate created some
confusion in a public already well rehearsed in the promise that the “draft text has been
written in plain language so that everyone can read and understand it’’.’ See Annual Survey
of South African Law.
26 Under the text of the interim Constitution’s limitation clause courts must first ask if a
limitation is reasonable, and only if it is deemed to be reasonable will they move on the
second question of whether it is justifiable, at which point the court would be required to
balance competing interests.
27 In Makwanyane para 104, Chaskalson P also introduced factors to be considered in the
‘balancing’ process when he said the following: ‘In the balancing process, the relevant
considerations will include the nature of the right that is limited, and its importance to an
open and democratic society based on freedom and equality; the purpose for which the
right is limited and the importance of that purpose to such a society; the extent of the
limitation, its efficacy, and particularly where the limitation has to be necessary, whether
the desired ends could reasonably be achieved through other means less damaging to the
right in question’.
28 While these factors added some substance to an otherwise fairly abstract process, this
value was offset by the exclusion of two features of the interim Constitution’s s 33 that could
potentially have narrowed down the ‘universe of possibility’ presented by the open-ended
nature of the balancing test. The first was the requirement that limitations must not ‘negate
the essential content of the right in question’. The second was the requirement that, in
 respect of certain ‘entrenched rights’, the limitation pass the additional test of being
necessary. While these will no doubt have presented their own problems, they would have
brought some clarity to the process of limiting rights. Notably, there was an objection
raised in the Certification judgment regarding the omission of ‘necessary’ but that was
quickly dismissed (see Certification of the Constitution of the Republic of South Africa, 1996
(CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September
1996) para 90).
29 Roux, T (2014) ‘Assessing the social transformation performance of the South African
Constitutional Court: From totalitarianism to the rule of law’ in Jenkins, C and du Plessis,
M (eds) Law, Nation-Building and Transformation: The South African Experience in
Perspective 223 at 225.
30 Roux (2014) 227.
31 First National Bank of SA Limited t/a Wesbank v Commissioner for the South African
Revenue Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of
Finance (CCT19/01) [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (16 May 2002).
32 Roux (2014) 233.
33 Roux (2014) 234.
34 Roux (2014) 235.
35 (CCT28/01) [2002] ZACC 6; 2002 (4) SA 613 (CC); 2002 (7) BCLR 663 (CC) (21 May 2002).
36 Walters para 26.
37 See Beinash and Ernst & Young (CCT12/98) [1998] ZACC 19; 1999 (2) SA 116 (CC); 1999 (2)
BCLR 125 (CC) (2 December 1998).
38 See Mistry v Interim National Medical and Dental Council (CCT13/97) [1998] ZACC 10;
1998 (4) SA 1127 (CC); 1998 (7) BCLR 880 (CC) (29 May 1998) para 28; S v Jordan (Sex
Workers Education and Advocacy Task Force and Others as Amici Curiae) (CCT31/01)
[2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11) BCLR 1117 (CC) (9 October 2002) paras
28–9; and South African Broadcasting Corporation Ltd v National Director of Public
Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR
167 (CC) (21 September 2006). See also Woolman and Botha (2013) 34.10–34.11.
39 See Woolman and Botha (2013) 34.17–34.18.
40 In Bernstein v Bester NO (CCT23/95) [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR
449 (CC) (27 March 1996) para 79, Ackermann J noted in the context of the right to privacy
that ‘[t]he two-stage approach requires, as the first step, a definition of the scope of the
relevant right. At this stage already … it is necessary to recognize that the content of the
right is crystallized by mutual limitation. Its scope is already delimited by the rights of the
community as a whole (including its members)’.
41 Makwanyane para 9.
42 Cheadle (2002) 30–5.
43 South African National Defence Union v Minister of Defence (CCT65/06) [2007] ZACC 10;
2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC) (30 May 2007) paras 25–7.
44 R v Big M Drug Mart (1985) 13 CRR 64 103 (SCC).
45 On the other hand, however, too generous (or insufficiently discerning) an interpretation
would render the two-stage approach redundant as all the work will be left to the limitation
enquiry, and the value of the substantive approach to this stage of the enquiry will be
undercut.
46 (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA) (5 April 1995).
 Zuma para 21. In Makwanyane para 100, Chaskalson P held that ‘[o]ur constitution … calls
47
for a ‘two-step’ approach, in which a broad rather than a narrow interpretation is given to
the fundamental rights enshrined in chapter 3 and limitations have to be justified through
the application of section 33’.
48 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
49 Act 65 of 1996.
50 De Reuck paras 46–7.
51 De Reuck para 48.
52 De Reuck para 48.
53 De Reuck paras 56–83.
54 Ex parte Minister of Safety and Security: In re S v Williams (CCT20/94) [1995] ZACC 6; 1995
(3) SA 632 (CC); 1995 (7) BCLR 861 (CC) (9 June 1995) para 21.
55 Cheadle (2002) 30–2.
56 Cheadle (2002) 30–8.
57 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service;
First National Bank of SA Ltd t/a Wesbank v Minister of Finance (CCT19/01) [2002] ZACC 5;
2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) (16 May 2002).
58 Act 91 of 1964.
59 First National Bank para 100.
60 First National Bank para 110.
61 First National Bank para 110.
62 First National Bank para 111.
63 Ex parte Minister of Safety and Security: In re S v Walters (CCT20/94) [1995] ZACC 6; 1995
(3) SA 632 (CC); 1995 (7) BCLR 861 (CC) (9 June 1995).
64 Walters paras 26–7.
65 (CCT23/95) [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) (27 March 1996).
66 Bernstein para 75.
67 Bernstein para 77.
68 Jordan.
69 Act 23 of 1957.
70 Jordan paras 82–3.
71 Jordan paras 83–4.
72 2020 (1) SACR 469 (CC); 2020 (3) BCLR 245 (CC).
73 Act 51 of 1977.
74 Centre for Child Law para 46.
75 Centre for Child Law para 48.
76 Centre for Child Law para 49.
77 S 36(1) of the Constitution.
78 Woolman and Botha (2013) 34.48.
79 As above 36-48.
80 See generally Dladla and Another v City of Johannesburg and Others (CCT124/16) [2017]
ZACC 42; 2018 (2) SA 327 (CC); 2018 (2) BCLR 119 (CC) (1 December 2017) para 52; Police
and Prisons Civil Rights Union v South African Correctional Services Workers’ Union and
Others (CCT152/17) [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) (23
 August 2018) para 71; Nandutu and Others v Minister of Home Affairs and Others
(CCT114/18) [2019] ZACC 24; 2019 (5) SA 325 (CC); 2019 (8) BCLR 938 (CC) (28 June 2019)
para 71.
81 The Court has not yet considered the relationship that must exist between the law and the
limiting measure, and more specifically what the phrase ‘in terms of’ means.
82 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (1 April 1999).
83 August para 23.
84 (CCT124/16) [2017] ZACC 42; 2018 (2) BCLR 119 (CC); 2018 (2) SA 327 (CC) (1 December
2017).
85 Dladla paras 47–51.
86 Dladla para 52.
87 See Currie and De Waal (2013) 156 and Rautenbach, I and Venter, R Rautenbach-Malherbe
Constitutional Law 7 ed (2018) 310.
88 See Currie and De Waal (2013) 156 and Rautenbach and Venter (2018) 310.
89 See Currie and De Waal (2013) 156 and Rautenbach and Venter (2018) 310.
90 Larbi-Odam v Member of the Executive Council for Education (North-West Province)
(CCT2/97) [1997] ZACC 16; 1998 (1) SA 745 (CC); 1997 (12) BCLR 1655 (CC) (26 November
1997) para 27.
91 Du Toit v Minister of Transport (CCT22/04) [2005] ZACC 9; 2006 (1) SA 297 (CC; )2005 (11)
BCLR 1053 (CC) (8 September 2005).
92 Sonderup v Tondelli and Another (CCT53/00) [2000] ZACC 26; 2001 (1) SA 1171 (CC); 2001
(2) BCLR 152 (CC); (4 December 2000).
93 Ingledew v Financial Services Board: In re Financial Services Board v Van der Merwe and
Another (CCT6/02) [2003] ZACC 8; 2003 (4) SA 584 (CC); 2003 (8) BCLR 825 (CC) (13 May
2003) para 19.
94 (CCT11/96) [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (18 April 1997).
95 Hugo para 96.
96 Hugo para 76 fn 7.
97 Hugo para 98.
98 (1979) 2 EHRR 245.
99 Hugo para 99.
100 (1991) 77 DLR (4th) 385 (SCC).
101 Hugo paras 100–101.
102 Hugo para 102.
103 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister
of Home Affairs (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (7
June 2000).
104 Dawood para 47.
105 Woolman and Botha (2013) 34.61.
106 Woolman and Botha suggest that the movement should be the other way, namely that
content specific questions should be considered under the law of general application
requirement, rather than under the reasonable and justifiable requirement (see Woolman
and Botha (2013) 34.62–34.63).
107 S 33(1) of the interim Constitution provided that ‘[t]he rights entrenched in this Chapter
may be limited by law of general application, provided that such limitation (a) shall be
 permissible only to the extent that it is (i) reasonable; and (ii) justifiable in an open and
democratic society based on freedom and equality; and (b) shall not negate the essential
content of the right in question …’. Further, it provided that the limitation of certain
‘entrenched’ rights must also be necessary.
108 These more specific questions are paraphrased by Woolman and Botha as follows: ‘first,
whether the limitation serves a sufficiently important objective; second, whether the
limitation is rationally connected to the said objective; third, whether the limitation
impairs the right as little as possible; and fourth, whether the actual benefits of the
limitation are proportionate to its deleterious consequences for the rights-holder’ (see
Woolman S and Botha H, ‘Limitations: Shared constitutional interpretation, an appropriate
normative framework and hard choices’ Woolman S and Bishop M (eds) (2008)
Constitutional Conversations 155.
109 As discussed further below, the ‘importance of the purpose of the limitation’ factor is made
up of two parts: first, the purpose of the limitation and second, its importance. The first part
is relevant at the threshold stage of the reasonable and justifiable enquiry, while the second
part is relevant at the balancing and proportionality stage.
110 The ‘relation between the limitation and its purpose’ is similarly complex. The relationship
requires at a minimum a rational connection at the threshold stage of the reasonable and
justifiable enquiry and a proportional relationship at the balancing and proportional stage.
Labelling these threshold questions as factors is misleading as it suggests that, like the
other s 36(1) factors, they are optional rather than imperative.
111 Iles, K (2007) A fresh look at limitations: unpacking section 36 South African Journal on
Human Rights 23(1):68.
112 One could consider step one and two – which deal with the internal aspects of limiting
measure – as addressing the question of reasonableness, while the latter two – which
address the relationship between the limiting measure and externalities – address the issue
of justifiability.
113 In Prince para 155, Sachs J noted that ‘[l]imitations analysis under our Constitution is based
not on formal or categorical reasoning but on processes of balancing and proportionality as
required by section 36’.
114 These remaining s 36(1) factors are also, broadly speaking, captured in stages three and
four of the Oakes formulation. The third step in Oakes – whether the limitation impairs the
right as little as possible – is similar to the less restrictive means factor in s 36(1)(e), but is
perhaps more appropriately compared to the phrase ‘to the extent that’. The fourth and
final step under the Oakes formulation – whether the actual benefits of the limitation are
proportionate to its deleterious consequences for the rights-holder – is proportionality in a
limited sense. On this score, s 36(1) is more comprehensive. This is because the remaining s
36(1) factors collectively ask if the legitimate, rationally-based measure constitutes a
proportionate limitation on the right in question, taking into account the degree of
infringement, the nature of the right, the breadth of the measure and the social good it
achieves.
115 See S v Bhulwane, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388
(CC); 1995 (12) BCLR 1579 (CC) (29 November 1995) para 24. In this case, O’Regan J found
that that the reverse onus provision in s 21(1)(a)(i) of the Drugs and Drug Trafficking Act
140 of 1992 was unconstitutional and invalid because it was not rationally connected to it
purpose, namely suppressing illicit drug trafficking. Despite having come to this
conclusion, O’Regan J went on to state expressly that the provision was unconstitutional,
 not only because it failed the threshold rational connection test, but also because it was not
‘justifiable or necessary as contemplated by section 33’.
116 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC) (25 January
2002).
117 Prince para 81.
118 (CCT57/06) [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) (6 March 2007).
119 Englebrecht para 41.
120 Makwanyane.
121 Makwanyane paras 145–6.
122 Woolman and Botha (2008) 161.
123 Woolman and Botha (2008) 159.
124 Woolman and Botha (2008) 160.
125 Woolman and Botha (2008) 161.
126 Woolman and Botha (2008) 162.
127 S 36(1)(b) of the Constitution.
128 Jordan para 15.
129 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7;
1999 (4) SA 469 (CC) (26 May 1999), where the aim was to comply with s 200(1) of the
Constitution which provides that the South African National Defence Force (SANDF), must
be structured and managed as a disciplined military force.
130 Bhulwane para 20.
131 Larbi-Odam v MEC for Education (North West Province) (CCT2/97) [1997] ZACC 16; 1998
(1) SA 745 (CC); 1997 (12) BCLR 1655 (CC) (26 November 1997) para 30.
132 South African Defence Union para 32.
133 Christian Education South Africa v Minister of Education (CCT13/98) [1998] ZACC 16; 1999
(2) SA 83 (CC); 2000 (10) BCLR 1051 (CC) (14 October 1998) paras 39–41.
134 S v Manamela (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) (14
April 2000) para 27.
135 Islamic Unity Convention v Independent Broadcasting Authority (CCT36/01) [2002] ZACC
3; 2002 (4) SA 294 (CC); 2002 (5) BCLR 433 (CC) (11 April 2002) para 45.
136 Jordan para 15.
137 S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858; 2002 (8) BCLR 793 (12 June 2002)
para 33.
138 De Reuck.
139 Lawyers for Human Rights v Minister of Home Affairs (CCT 18/03) [2004] ZACC 12; 2004 (4)
SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) para 37.
140 Jaftha v Schoeman (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78
(CC) (8 October 2004) para 37.
141 Magajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (5)
SA 250 (CC); 2006 (10) BCLR 1133 (CC) (8 June 2006) para 81.
142 Johncom para 29.
143 Moodley v Kenmont School and Others (CCT281/18) [2019] ZACC 37; 2020 (1) SA 410 (CC);
2020 (1) BCLR 74 (CC) (9 October 2019) para 29.
144 Makwanyane para 185.
145 National Coalition for Gay and Lesbian Equality para 47.
 (CCT108/17) [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (18
146
September 2018).
147 Prince para 65.
148 South African National Defence Union.
149 Act 44 of 1957.
150 South African National Defence Union para 35.
151 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC)
(29 November 1995).
152 Act 140 of 1992.
153 Bhulwana para 24.
154 S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) (5 April
2001) paras 293–294; and Lesapo v North West Agricultural Bank CCT23/99) [1999] ZACC
16; 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420 (CC) (16 November 1999) para 26.
155 Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others
intervening) (CCT 108/17) [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC)
(18 September 2018).
156 Prince para 81. The Court was quoting from Prince v President of the Law Society of the Cape
of Good Hope (CCT 36/00) [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC) (25
January 2002) para 61.
157 Although this factor is sequentially last, it makes little sense to consider it after making
proposed means run the gauntlet of the proportionality enquiry, although the
Constitutional Court has done so on occasion.
158 As was noted by O’Regan J in SANDF, ‘the use of the term ‘overbreadth’ can be confusing,
particularly as the phrase has different connotations in different constitutional contexts’,
adding ‘[c]are should therefore be taken when employing the term’. South African National
Defence Union para 18.
159 Although the Constitutional Court has equated this with the less restrictive means
requirement, for the reasons set out about this is better placed under the notion of
proportionality.
160 Williams.
161 Williams para 62.
162 Williams para 75.
163 (CCT 12/13) [2013] ZACC 35; 2014 (2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) (3 October
2013).
164 Teddy Bear Clinic for Abused Children paras 95–100.
165 Walters paras 26–7.
166 Unlike the Constitution, the interim Constitution did create a hierarchy of rights. This is
because s 33 listed a number of ‘entrenched’ rights which were harder to limit. This feature
was dropped from the Constitution.
167 See Johncom para 19; S v Mamabolo (E TV and Others, intervening) [2001] ZACC 17; 2001
(3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) para 41; and The Citizen 1978 (Pty)
Ltd and Others v McBride (CCT 23/10) [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR
816 (CC) (8 April 2011) para 148.
168 Makwanyane para 44.
169 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
170 Bhe para 71.
171 See Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a
Sabmark International (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743
(CC) (27 May 2005) para 47 and Mamabolo para 41.
172 See Bernstein para 79.
173 S 36(1)(c) of the Constitution.
174 See Woolman, S (2007) The amazing, vanishing Bill of Rights South African Law Journal
124(4):762.
175 Du Plessis, M and Penfold, G (2008) Bill of Rights Jurisprudence: Operational provisions of
the Bill of Rights Juta’s Annual Survey of South African Law 50.
176 Manamela para 32. The same approach was followed under the interim Constitution. In
Bhulwana para 81, the Constitutional Court held that ‘the court places the purpose, effects
and importance of the infringing legislation on one side of the scales and the nature and
effect of the infringement caused by the legislation on the other. The more substantial the
inroad into fundamental rights, the more persuasive the grounds of justification must be’.
177 Manamela para 32.
178 Christian Education South Africa para 43. In Islamic Unity Convention para 45, the
Constitutional Court considered whether a legislative provision which prohibited the
broadcasting of any material ‘likely to prejudice relations between sections of the
population’ was a justifiable limitation on the right to freedom of expression, among
others. In its defence of the provision, the amicus curiae (Jewish Board of Deputies) raised
a number of arguments that invoked interests that were protected by the provision, namely
that ‘the interests of human dignity and equality, which are founding values of the
Constitution, and national unity, which is an important and legitimate state objective’.
179 See Jordan para 90 where O’Regan and Sachs JJ stated in their minority judgment that
when it comes to the question of proportionality, ‘the Court is obliged to apply the
standards of an open and democratic society’.
180 National Coalition for Gay and Lesbian Equality para 57.
181 Prince paras 119–27.
182 This is proportionality with a capital ‘P’.
183 Woolman and Botha (2008) 156.
184 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
185 De Reuck para 59.
186 De Reuck para 67.
187 De Reuck para 70.
188 Woolman and Botha (2008) 159–60.
189 Islamic Unity Convention.
190 Islamic Unity Convention para 51. The Court also held the provision to be overbroad. See
below.
191 (CCT 26/01) [2001] ZACC 4; 2001 (11) BCLR 1175 (8 October 2001).
192 Act 18 of 1973.
193 Potgieter para 7.
194 Islamic Unity Convention para 49.
195 S 126B(4) of the Defence Act 44 of 1957.
196 South African National Defence Union para 11.
197 Matiso.
198 Coetzee paras 13–4.
199 Christian Education South Africa para 35. In MEC for Education: KwaZulu-Natal v Pillay
(CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007)
para 73, Langa CJ held that at the core of the concept of reasonable accommodation ‘is the
notion that sometimes the community, whether it is the State, an employer or a school,
must take positive measures and possibly incur additional hardships in order to allow all
people to participate and enjoy their rights equally. It ensures that we do not relegate
people to the margins of society because they do not and cannot conform to certain social
norms’.
200 Christian Education South Africa para 32.
201 Prince v President of the Law Society of the Cape of Good Hope para 94.
202 As noted above, although the Constitutional Court has equated this with the less restrictive,
alternative means requirement, for the reasons set out about this is better placed under the
notion of proportionality.
203 Prince v President of the Law Society of the Cape of Good Hope para 139:
The use made of cannabis by Rastafari cannot in the circumstances be sanctioned
without impairing the state’s ability to enforce its legislation in the interests of the
public at large and to honour its international obligation to do so. The failure to make
provision for an exemption in respect of the possession and use of cannabis by
Rastafari is thus reasonable and justifiable under our Constitution.
204 Pillay.
205 Pillay para 79.
206 Pillay para 85.
207 Pillay para 112.
208 It was a hollow victory in light of the fact that the student had matriculated by the time
judgment was handed down.
209 Prince para 156.
210 Makwanyane para 102.
211 In Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration
of Offenders (NICRO) (CCT03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445
(CC) para 34, the Constitutional Court held that ‘[i]t is not the conventional onus of proof
as it is understood in civil and criminal trials where disputes of fact have to be resolved. It is
rather a burden to justify a limitation where that becomes an issue in a section 36 analysis’.
212 Moise.
213 Moise para 18.
214 NICRO.
215 NICRO para 36.
216 (CCT19/00) [2000] ZACC 24; 2001 (1) SA 1146 (CC); 2001 (1) BCLR 52 (CC) (29 November
2000).
217 Steyn para 31.
218 Steyn para 32.
219 Teddy Bear Clinic for Abused Children.
220 Act 32 of 2007.
221 Teddy Bear Clinic for Abused Children paras 42–7.
222 Teddy Bear Clinic for Abused Children paras 85–94.
223 Teddy Bear Clinic for Abused Children para 84.
224 Centre for Child Law para 63
225 Centre for Child Law para 63.
226 Rautenbach and Venter (2018) 323.
227 Rautenbach and Venter (2018) 323.
228 Rautenbach and Venter (2018) 325.
229 (CCT 51/06) [2007] ZACC 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
230 Pillay para 40.
231 Pillay para 40.
232 Act 3 of 2000.
233 S 4 of PAJA.
234 Act 4 of 2000.
235 (CCT 2/02) [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) (6 December
2002).
236 Act 66 of 1995.
237 NEHAWU para 14.
238 (CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December
2007).
239 HTF Developers para 26.
240 (CCT 17/96 [1996] ZACC 16; 1996 (4) SA 672 (CC); 1996 (8) BCLR 1015 (CC) (25 July 1996).
241 Act 34 of 1995.
242 AZAPO para 10.
243 (CCT 58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 2 BCLR 167 (CC) (21 September
2006).
244 SABC para 46. The majority concluded that, in the circumstances of the case, the SCA has
struck ‘an appropriate relationship of proportionality between the right to freedom of
expression and the court’s obligation to ensure that the proceedings before it are fair’.
245 SABC para 42.
246 SABC para 92.
247 Independent Newspapers (Pty) Ltd v Minister of Intelligence Services: In re Masetlha v
President of the Republic of South Africa and Another (CCT 38/07) [2008] ZACC 6; 2008 (5)
SA 31 (CC); 2008 8 BCLR 771 (CC) (22 May 2008).
248 Independent Newspapers para 55.
249 Du Plessis and Penfold (2008) 70–1.
250 Independent Newspapers para 83.
CONSTITUTIONAL REMEDIES

12.1 Introduction

12.2 Declarations of invalidity

12.2.1 Introduction
12.2.2 Reading down
12.2.3 Reading in
12.2.4 Severance
12.2.5 Notional severance

12.3 Limiting the retrospective effect of an order of invalidity

12.4 Suspension of an order of invalidity

12.5 Meaningful engagement

12.6 Constitutional damages

12.7 A declaration of rights

12.8 An interdict
12.8.1 Structural Interdicts

Summary

12.1 Introduction
One of the most important characteristics of a judicially enforceable
Constitution is that the courts are empowered to hand down orders that
address infringements of the Constitution (called remedies) in a
manner that assists litigants and those in a similar situation to the
litigants. Therefore, in those cases where a court has found that law or
conduct unjustifiably infringes a fundamental right protected in the Bill
of Rights, it has to decide what the most appropriate remedy would be
to resolve the infringement. When it comes to making this decision,
however, the courts are reluctant to grant remedies that are impractical,
that would not cure the constitutional defect or that would tread too
drastically on the powers of the other branches of the state. It may safely
be stated, therefore, that constitutional litigation aimed at seeking an
appropriate remedy is extremely complex. The issues are usually ‘multi-
faceted, programmatic or involve a variety of public or private role-
players’.1
A remedy may be defined either in a broad or a narrow sense. In its
broad sense a remedy may be defined as ‘a process of legal redress
embracing all the legal procedures that a person has to follow to redress
the violation of their rights’.2 In its narrow sense, a remedy may be
defined as the order made by a court in response to a proven violation
of a person’s rights. As both of these definitions indicate, a remedy is the
mechanism used to repair an infringement of rights once a court has
interpreted the right, applied it to the facts of the case at hand and come
to the conclusion that the law or conduct in question is
unconstitutional. To a significant extent, therefore, the enforcement of
rights through the granting of remedies determines what those rights
mean in practice in the lives of the parties to the dispute.3
Given its function as a mechanism used to repair an infringement of
rights, it is not surprising that an important principle of the law of
constitutional remedies is that successful litigants should obtain the
relief they seek to vindicate their rights. In S v Bhulwana, S v Gwadiso,
for example, the Constitutional Court thus held that ‘[c]entral to a
consideration of the interests of justice in a particular case is that
successful litigants should obtain the relief they seek’.4 When a court
determines what the appropriate remedy in a case will be, it engages in
a profoundly practical exercise that is both legal and political in nature.
It has to consider the consequences of granting or not granting a
particular remedy, both for the litigant who brought the case and for the
state and society at large.

The nature of constitutional remedies

In those cases where a court finds that law or conduct
has unjustifiably infringed a fundamental right
protected in the Bill of Rights, it must determine what
the most appropriate remedy would be. In this respect,
it is important to note that a constitutional remedy is
one that focuses not only on the harm to the
complainant, but also on the harm to the
constitutional goal of creating a just and fair society. A
constitutional remedy must, therefore, vindicate the
Constitution and deter future infringement.
In Fose v Minister of Safety and Security, for
example, Kriegler J stated that:
[t]he harm caused by violating the Constitution is a harm to the
society as a whole, even where the direct implications of the
violation are highly parochial. The rights violator not only harms a
particular person, but impedes the fuller realisation of our
constitutional promise.5

The constitutional promise, therefore, will be upheld

only if suitable remedies may be invoked in the event
of a breach of the Constitution and obviously if those
remedies are subsequently enforced. However, the
challenge with respect to determining an appropriate
remedy is that to ensure its effective enforcement, the
remedy must be extremely detailed and specific. If the
remedy is not detailed and specific enough, the
violator could argue that he or she is unable to comply
with the order due to its vagueness.
 This reaffirms the fact that constitutional remedies
are forward-looking, community-orientated and
structural as opposed to backward-looking,
individualistic and corrective or retributive. At all times,
the remedy must operate generally to deter future
infringements and eradicate inconsistencies between
law or conduct and the Constitution.

The kinds of remedies a court may grant depend on the manner in

which the Bill of Rights applies to a dispute. In this respect a distinction
may be drawn between:
• the direct vertical application of the Bill of Rights
• the direct horizontal application of the Bill of Rights
• the indirect vertical and horizontal application of the Bill of Rights.

In those cases in which the Bill of Rights applies directly and vertically,
sections 38 and 172(1) of the Constitution govern the kinds of remedies
a court may grant. In those cases in which the Bill of Rights applies
directly and horizontally, sections 8(2) and 8(3) of the Constitution
govern the kinds of remedies a court may grant. And in those cases in
which the Bill of Rights applies indirectly, section 39(2) of the
Constitution regulates the kinds of remedies a court may grant.
This distinction is important because sections 38 and 172(1) of the
Constitution confer on the courts the power to apply and develop
unique constitutional law remedies such as declarations of invalidity,
constitutional damages and structural interdicts. Sections 8(2), 8(3) and
39(2) of the Constitution, however, simply provide that the courts must
use and develop the common law and statutory remedies. For the
purposes of this chapter, therefore, we are going to focus only on the
kinds of remedies a court may grant when the Bill of Rights applies
directly and vertically.
When it comes to identifying the kinds of remedies a court may
grant when the Bill of Rights applies directly and vertically, it is helpful
to start with section 172(1)(a) of the Constitution. This section provides
that ‘[w]hen deciding a constitutional matter … a court must declare
that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency’. The court does not have a
discretion in the matter and cannot, for example, decline to declare law
invalid because Parliament is in the process of amending that law.6
Apart from issuing a declaration of invalidity, section 172(1)(b) of
the Constitution also provides that when deciding a constitutional
matter, a court may make any order that is ‘just and equitable’. The
Constitutional Court has employed this ‘broad and flexible’7 power to
develop a number of appropriate mechanisms aimed at regulating the
impact of a declaration of invalidity. These mechanisms may be divided
into two broad groups. First, those mechanisms aimed at limiting the
substantive impact8 of the declaration of invalidity. These are severance,
notional severance and reading in. Second, those mechanisms aimed at
limiting the temporal impact of the declaration of invalidity.9 These take
the form of controlling the retrospective effect of a declaration of
invalidity, which is expressly provided for in section 172(1)(b)(i) of the
Constitution, or temporarily suspending a declaration of invalidity,
which is expressly provided for in section 172(1)(b)(ii).10
The constitutional remedies referred to in sections 172(1)(a) and (b)
of the Constitution must also be read together with section 38. This
section provides that a court may grant ‘appropriate relief, including a
declaration of rights’ whenever a right in the Bill of Rights has been
violated or threatened. The Constitutional Court has used this power to
develop a number of additional remedies. Among these are interdicts,
constitutional damages and meaningful engagement.

Table 12.1 The remedies available for different breaches of the Constitution
Direct vertical application Sections 38 and • Declaration of invalidity
172(1) and (2) • Declaration of rights
• An interdict (both mandatory and prohibitory)
• Constitutional damages
• Meaningful engagement
• Costs

Direct horizontal application Sections 8(2) and • Remedies contained in legislation that give
8(3) effect to the Bill of Rights
 Develop the common law to give effect to the
• Bill of Rights

Indirect vertical and Section 39(2) • Common law remedies

horizontal application • Customary law remedies

Illustrating the need to establish the most appropriate remedy, is the

case of Head of Department, Department of Education, Free State
Province v Welkom High School and Another; Head of Department,
Department of Education, Free State Province v Harmony High School
and Another,11 where Froneman J and Skweyiya J (with whom
Moseneke DCJ and Van der Westhuizen J concurred) said:
when deciding constitutional matters, courts have an ‘ample and flexible
remedial jurisdiction … [which] permits a court to forge an order that would
place substance above mere form by identifying the actual underlying dispute
between the parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional requirements’.
Cases involving children are pre-eminently of the kind where one must scratch
the surface to get to the real substance below.12

When relief cannot be afforded to successful

litigants
Although it is generally accepted that a successful
litigant should be afforded the relief he or she seeks,
there are some exceptions to the principle. These
exceptions are:
• where the relief cannot properly be tailored by a
court13
• where even though a litigant would otherwise be
successful, other interests or matters preclude an
order in his or her favour14
• where an order would otherwise produce such
disorder or administrative difficulties that the
interests of justice served by an order in favour of
 a successful litigant are outweighed by the social
dislocation such an order might occasion.15

In these circumstances, the broad issue of the

administration of justice is taken into account in the
determination of just and equitable remedies. This
means that the granting of remedies by a court, while
guided by legal principles, is also based partly on
pragmatism and with a keen eye to the potentially
disruptive effects of granting the ‘wrong’ remedy.
These points are clearly illustrated in AllPay
Consolidated Investment Holdings (Pty) Ltd and Others
v CEO of the South African Social Security Agency and
Others.16
In this case the appellant applied for an order
setting aside a multibillion rand tender that had been
granted to a company called Cash Paymaster Services
(Pty) Ltd by the South African Social Security Agency
(SASSA). The tender was for the payment of social
grants to millions of South Africans every month.
The appellant, which was one of the losing
bidders, based its application on the grounds that the
tender process infringed section 217(1) of the
Constitution because it was unfair. Section 217(1)
provides that ‘when an organ of state … contracts for
goods or services, it must do so in accordance with a
system which is fair, equitable, transparent,
competitive and cost-effective’.
The Supreme Court of Appeal (SCA) rejected the
appellant’s argument and refused to set the tender
aside. In arriving at this conclusion, however, the Court
held that even if the tender process had been unfair it
would not have granted an order setting the tender
aside. This is because such an order would have
significantly disrupted the payment of social grants
 and this would have had serious consequences not
only for Cash Paymaster Services itself, which was
completely innocent, but also for the millions of poor
South Africans who receive social grants every month.
In so far as the recipients of social grants are
concerned, the Court stated that:
We need no evidence to know the immense disruption that would
be caused, with dire consequences to millions of the elderly,
children and the poor, if this contract were to be summarily set
aside. The prospect of that occurring has prompted the Centre for
Child Law to intervene as amicus curiae in the case. We value the
contribution they have made but they had no cause for concern. It
is unthinkable that that should occur.17

On appeal, the Constitutional Court overturned the

ruling by the SCA and declared the tender invalid.
Addressing the concerns expressed by the SCA about
the potential disruption to the payment of social
grants, the Constitutional Court suspended the order
pending the decision of SASSA to award a new tender
after completion of the tender process.18

12.2 Declarations of invalidity

12.2.1 Introduction
As we have seen, section 172(1)(a) of the Constitution states that when
deciding a constitutional matter within its power, a court ‘must declare
that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency’. Section 172(1)(a) does not
confer a discretion on the courts. Where a law or provision conflicts
with the Constitution, a court is obliged to declare the law or provision
invalid to the extent of the inconsistency.19 The same applies to the
conduct of a person or institution bound by the Constitution.20
 The obligation to declare law or conduct that is inconsistent with the
Constitution invalid flows logically from the fact that the Constitution is
supreme. It is not surprising, therefore, that section 2 of the
Constitution expressly provides that ‘[t]his Constitution is the supreme
law of the Republic; law or conduct inconsistent with it is invalid, and
the obligations imposed by it must be fulfilled’.
An important consequence of the supremacy of the Constitution is
that any law or conduct in conflict with the Constitution is invalid from
the moment that the conflict arises. This is called the doctrine of
objective invalidity. Although the invalidity will have legal effect only
once a court has confirmed that there is a conflict between the
Constitution and legislation or the actions of a person, the invalidity
does not arise only at the moment when it is affirmed by the court.21
This means that an order of invalidity usually has retrospective effect as
the court merely confirms that the legislation or the actions of an
individual were invalid from the moment the conflict with the
Constitution arose (or from the date upon which the Constitution
entered into force, whichever is the latter).
The Constitutional Court adopted the doctrine of objective invalidity
in its judgment in Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others.22 In this case, the Court held as follows:
The Court’s order does not invalidate the law; it merely declares it to be invalid.
It is very seldom patent, and in most cases is disputed, that pre-constitutional
laws are inconsistent with the provisions of the Constitution. It is one of this
Court’s functions to determine and pronounce on the invalidity of laws,
including Acts of Parliament.23

This does not detract from the reality that pre-existing laws either
remained valid or became invalid when the provisions of the
Constitution came into operation. In this sense, laws are objectively
valid or invalid depending on whether they are consistent with the
Constitution or not. The fact that a dispute concerning inconsistency
may be decided only years afterwards does not affect the objective
nature of the invalidity. The issue of whether a law is invalid or not,
therefore, does not depend on whether – at the moment when the issue
is being considered – a particular person’s rights are threatened or
infringed by the offending law or not.24 The court needs to consider the
matter in an abstract manner, meaning that it must consider the impact
of the legislation on all similarly situated people and not just the
individual litigant in the case at hand.

Both law and conduct may be declared

unconstitutional
Apart from law, conduct that unjustifiably infringes the
Bill of Rights must also be declared unconstitutional
and invalid. The South African government’s decision to
withdraw from the International Criminal Court (ICC) in
2016 illustrates this principle. In 2000 the South
African government ratified the Rome Statute of the
International Criminal Court and in 2002 the South
African Parliament domesticated this treaty when it
passed the Implementation of the Rome Statute of the
International Criminal Court.25 As its name indicates,
the purpose of the ICC is to prosecute persons who
have committed crimes against humanity or any other
international crimes.26 This treaty imposes a number of
obligations on the South African government, one of
which is to arrest any person who is present on South
African territory and who is accused of having
committed a crime listed in the treaty.
In 2015, this obligation shot to prominence when
the (then) President of Sudan, Omar al-Bashir, arrived
in South Africa to attend a summit of the African
Union. Prior to his arrival in South Africa, President al-
Bashir had been accused of committing crimes against
humanity in the Darfur region of Sudan and in 2009
and 2010 the ICC had issued arrest warrants against
him. Although it was aware of these warrants, the
South African government failed to act on them and
arrest President al-Bashir when he landed in South
Africa. The Southern Africa Litigation Centre then
applied to the Pretoria High Court for an order
compelling ‘the government to cause President al-
Bashir to be arrested and surrendered to the ICC’.27
Despite this order having been granted, however,
President al-Bashir was allowed to leave the country
with the knowledge – and assistance – of the South
African government.28
Following this debacle, the South African
government informed the Secretary-General of the
United Nations that it was withdrawing from the Rome
Statute.
When news of this decision was made public, the
Democratic Alliance applied to the Pretoria High Court
for an order setting the government’s decision aside on
the ground that it was unconstitutional and invalid. The
government’s decision was unconstitutional, the DA
argued, because section 231 of the Constitution
provides that before the government can withdraw from
an international treaty, it must first obtain the approval
of Parliament.29 In this case, however, the government
had not even informed Parliament of its decision to
withdraw from the Rome Statute.
The High Court agreed with the DA and granted the
order it sought. In arriving at this decision, the Court
held that the government is bound to comply with the
doctrine of the separation of powers and, therefore, to
afford the appropriate forum (Parliament) an
opportunity to make the important decision whether
South Africa should withdraw from the Rome Statute.30
Since the government violated the rule of law by not
following the correct procedure, its conduct was
unconstitutional and invalid.31
When a person alleges that a legislative provision is constitutionally
invalid, a court must first attempt to interpret the impugned provision
in a way that would render it constitutionally valid. This is called
reading down. If this is not possible, the court must declare the law to be
invalid. Apart from simply declaring a law to be invalid, however, a
court must also attempt to limit the substantive impact of such a
declaration by severing the offending words or reading in new words to
cure the constitutional defect.32 Severance and reading in, therefore, are
the exact opposites. When a court severs words, it strikes them out of
the offending legislation in order to cure it of its unconstitutionality.
When a court reads in words, it adds them to the offending legislation in
order to cure it of its unconstitutionality.33 Apart from severing or
reading in, a court should also attempt to limit the disruptive impact of
a declaration of invalidity by suspending its declaration34 or by limiting
its retrospective effect. We will discuss each of these situations in turn.
Before we do so, however, it is important to note that the
overarching consideration taken into account by the courts when
granting a remedy is the interests of justice and equity. What is required
is to vindicate the rights and interests of the successful litigant and to
provide effective relief with the least amount of disruption. In Fose,
decided under the interim Constitution, Ackermann J emphasised
these points when he stated the following:
Given the historical context in which the interim Constitution was adopted and
the extensive violation of fundamental rights which had preceded it, I have no
doubt that this Court has a particular duty to ensure that, within the bounds of
the Constitution, effective relief be granted for the infringement of any of the
rights entrenched in it. In our context an appropriate remedy must mean an
effective remedy, for without effective remedies for breach, the values
underlying and the rights entrenched in the Constitution cannot properly be
upheld or enhanced.35

Although a court has a general obligation to grant a remedy that is just

and equitable to litigants who successfully raise a constitutional
complaint, there are exceptions to this rule. For example, where a court
cannot properly tailor the relief while still providing an effective
remedy, it may have to revert to other, less effective, remedies or it may
even have to decline to hear the appeal.36 In some cases, other interests
or matters, such as the best interest of the child over whom litigation is
being conducted, might preclude an order in favour of a successful
litigant.37
In those cases in which an order in favour of the successful party is
outweighed by the disorder or administrative difficulties such an order
would cause, then it may be in the interests of justice for the court to
decline to provide an effective remedy.38 However, there are several
ways in which the court can fashion its remedies to avoid these
problems while still providing effective relief. We now turn to the
various ways in which a court may minimise the disruptive effect of an
order of invalidity while providing effective relief to the successful
litigant.

12.2.2 Reading down

Reading down occurs when the words in a specific legislative provision
can be interpreted either in a way that renders the provision
constitutionally valid or in a way that renders it constitutionally invalid.
When faced with such a choice, the courts must choose the
interpretation that renders the legislative provision constitutional valid
rather than the interpretation that renders it constitutionally invalid.39
The Constitutional Court has explained reading down as follows:
[J]udicial officers must prefer interpretations of legislation that fall within
constitutional bounds over those that do not, provided that such an
interpretation can be reasonably ascribed to the section.40

Reading down, therefore, is not strictly speaking a remedy, but rather a

mandatory rule of statutory interpretation aimed at avoiding the
invalidation of a legislative provision as required by section 39(2) of the
Constitution.
Reading down must be distinguished from reading in and
severance. Interpreting legislation in a manner that promotes the spirit,
purport and objects of the Bill of Rights, is called reading down. This is
an interpretative process and is limited to what the text is reasonably
capable of meaning. Unlike reading down, the process of reading words
into or severing them from a legislative provision under section 172(1)
(b) of the Constitution following on a declaration of constitutional
invalidity is a remedial process and not an interpretive one.41 It can take
place only after the legislative provision in question has been found to
be constitutionally invalid.42 It follows that where a legislative provision
is reasonably capable of a meaning that places it within constitutional
bounds, it should be preserved. Only if this is not possible should courts
resort to the remedy of reading in or severance.43
To put it another way, reading in is a remedy that is applied only
after a court has declared a legislative provision to be unconstitutional
and invalid. Reading down, on the other hand, is not a remedy. Instead,
it is a principle of statutory interpretation that applies when a legislative
provision can be read in a way that either conflicts with the Constitution
or does not conflict with the Constitution. In these circumstances, the
principle of reading down provides that the court must adopt the
interpretation that does not conflict with the Constitution and thus
avoid having to make a declaration of invalidity. It is important to note,
however, that reading down is not always possible. A court can only
read down a legislative provision if that provision is reasonably capable
of the constitutional interpretation.44 If it is not reasonably capable of
that meaning, then the court must sever or read words in to the
legislation.45 As the Constitutional Court explained:
On the one hand, it is the duty of a judicial officer to interpret legislation in
conformity with the Constitution so far as this is reasonably possible. On the
other hand, the Legislature is under a duty to pass legislation that is reasonably
clear and precise, enabling citizens and officials to understand what is
expected of them. A balance will often have to be struck as to how this tension
is to be resolved when considering the constitutionality of legislation. There
will be occasions when a judicial officer will find that the legislation, though
open to a meaning which would be unconstitutional, is reasonably capable of
being read ‘in conformity with the Constitution’. Such an interpretation should
not, however, be unduly strained.46

Whether the wording of an impugned legislative provision is reasonably

capable of a specific interpretation is not always obvious.47 The
Constitutional Court for example, has held that the word ‘spouse’ can
have different meanings depending on the context within which it is
used. In one case, the Court held that the word ‘spouse’ was incapable
of being interpreted as including partners in permanent same-sex
relationship,48 while in another case it held that the word was capable of
being interpreted as including partners who had entered into a Muslim
marriage.49
The courts are acutely aware that in terms of the separation of
powers doctrine, it is not the judiciary’s role to (re)write the law. As
such, in the case of Mkhize v Umvoti Municipality and Others,50 the
Court carefully distinguished the legislative role of the legislative bodies
and that of the judiciary by proclaiming that a court’s:
sole aim and function [is] to render the legislation compliant with the
provisions of the Constitution. It is not vested with any general legislative
capacity merely by virtue of the fact that it has found a particular statutory
provision not to comply with the Constitution. Its function is to frame an
appropriate order that remedies the constitutional defect. It is for this reason
that stress is laid on the court’s obligation to endeavour to be faithful to the
legislative scheme.51

Sometimes, however, the only way in which the court can cure the
defect in the legislation is to insert a particular word or part of a
sentence, which it does by reading in, discussed next.

12.2.3 Reading in
When the court employs the remedy of reading in, it literally reads
words into an unconstitutional legislative provision to cure that
provision of its unconstitutionality. Reading in is used in cases where a
legislative provision is unconstitutional because of the omission of
certain words and phrases.52 In addition, reading in is also used in cases
where a legislative provision is unconstitutional because it ‘is unduly
invasive of a right’53 (in other words, because it is too broad). In these
cases, the courts read certain words or phrases into the provision to
narrow its scope and thus render it constitutionally valid. It is important
to note, therefore, that reading in occurs only after the court has
established that a legislative provision is in conflict with the
Constitution and has declared the provision invalid.54
 Reading in is an invasive remedy and raises separation of powers
concerns.55 In National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs, however, the Constitutional Court held that
there is in principle no difference between severance and reading in. In
both cases, legislation enacted by Parliament ‘is being altered by the
order of a court. In the one case by excision and in the other by
addition’.56 The Court has argued that reading in is justified, particularly
if we embrace the view of separation of powers as a structured dialogue
between the three branches of government. Reading in does not give
the judiciary the final word on how legislative provisions should be
formulated:
It should also be borne in mind that whether the remedy a court grants is one
striking down, wholly or in part; or reading into or extending the text, its choice
is not final. Legislatures are able, within constitutional limits, to amend the
remedy, whether by re-enacting equal benefits, further extending benefits,
reducing them, amending them, ‘fine-tuning’ them or abolishing them. Thus
they can exercise final control over the nature and extent of the benefits.57

Before reading words into a statute a court has to ensure, first, that the
provision to which words have been added is consistent with the
Constitution and its fundamental values and, second, that the result
achieved would interfere with the laws adopted by the legislature as
little as possible. As long as there are still many provisions on the statute
books from the pre-constitutional era, ‘the first consideration will in
those cases often weigh more heavily than the second’.58
It must also be borne in mind that it will not always be appropriate
to read words into an impugned provision to cure its
unconstitutionality. As the Constitutional Court stated in National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs:
it will not be appropriate to read words in, unless in so doing a court can define
with sufficient precision how the statute ought to be extended in order to
comply with the Constitution. Moreover, when reading in (as when severing) a
court should endeavour to be as faithful as possible to the legislative scheme
within the constraints of the Constitution. Even where the remedy of reading in
is otherwise justified, it ought not to be granted where it would result in an
unsupportable budgetary intrusion. In determining the scope of the budgetary
intrusion, it will be necessary to consider the relative size of the group which
the reading in would add to the group already enjoying the benefits. Where
 reading in would, by expanding the group of persons protected, sustain a
policy of long standing or one that is constitutionally encouraged, it should be
preferred to one removing the protection completely.59

As this passage indicates, the courts often have to draw a fine balance
between competing interests when deciding whether or not to read in.
Some of the difficulties that this can give rise to are illustrated in the
Constitutional Court’s judgment in Democratic Alliance v Speaker of the
National Assembly.60
In this case, President Zuma delivered the 2015 State of the National
Address to a joint sitting of both Houses of Parliament. During his
address, members of the Economic Freedom Front (EFF) continuously
interrupted President Zuma by asking him when he intended to repay
public money spent on non-security upgrades to his private residence
in Nkandla. As a result of these interruptions, the Speaker asked the
members of the EFF to leave the chamber. They, however, refused to do
so.
After the members of the EFF refused to obey the Speaker’s
instruction, she ordered the police to forcibly remove them in terms of
section 11 of the Powers, Privileges and Immunities of Parliament and
the Provincial Legislatures (PPI Act).61 This section provides that person
who creates a disturbance in the precincts while Parliament or a House
or a committee is meeting may be arrested and removed from the
precincts on the orders of the Speaker or the Chairperson of the
National Council of Provinces.
Following the forced removal of the members of the EFF, the
Democratic Alliance applied to the Western Cape High Court for an
order declaring section 11 of the PPI Act to be unconstitutional and
invalid on the ground that it infringed the parliamentary privilege of
freedom of speech guaranteed in section 58(1)(a) of the Constitution.
After the High Court granted the order, it was referred to the
Constitutional Court for confirmation in terms of section 172(2) of the
Constitution. The Constitutional Court confirmed that section 11 was
unconstitutional and invalid.
In arriving at this decision, the Constitutional Court held that even
though section 11 refers to ‘persons’ and not expressly to members of
the National Assembly, the word ‘person’ is wide enough to include
members of the National Assembly. This means that section 11 does
give the Speaker or the Chairperson the power to order the arrest or
removal of a member of the National Assembly or the NCOP who is
creating a disturbance.62
Given that section 11 of the Act applies only if a member was
creating a disturbance, it was important to define this concept. In this
respect, the Court held that the concept of a disturbance should not be
interpreted broadly. This is because a broad interpretation would
include conduct that is protected by the parliamentary privilege of
freedom of speech, for example conduct that annoys and tests the
patience of the presiding officers or other members of Parliament. If this
sort of conduct was included in the concept of a disturbance, however,
section 11 would clearly infringe the parliamentary privilege and would
be unconstitutional and invalid.63
The concept of a disturbance, therefore, had to be interpreted
narrowly to mean an interference that prevents Parliament from
conducting its business, with little possibility of resumption of business
within a reasonable period of time.64 Despite defining the concept of a
disturbance in this narrow manner, however, the Court went on to find
that section 11 still infringed the parliamentary privilege of freedom of
speech. This is because section 11 had to be read with sections 7 and 27
of the PPI Act which provided that creating or participating in a
disturbance was also a criminal offence and this had a chilling effect on
the parliamentary privilege of freedom of speech.65
Section 11, therefore, was unconstitutional because it not only
prohibited members of the public from creating a disturbance, but also
members of Parliament themselves.66 In other words, it went too far. In
order to remedy this defect, the Court read the words ‘other than a
member’ after the word ‘person’ into section 11 to ensure that it does
not apply toto give Parliament time to correct the constitutional
members of Parliament.67
Despite warning the courts to avoid reading in where this would
result in an unsupportable budgetary intrusion, the Constitutional
Court itself has ignored this warning and read words into a statute that
did have budgetary implications.68
How radical a constitutional remedy is reading
in?
Reading in can appear to be a rather radical remedy.
This is because it implicates the separation of powers
doctrine as the court – and not the legislature – in
effect rewrites a section of the law by reading words
into the statute. It is usually the legislature and not the
judiciary that has to formulate the wording of specific
legal provisions and reading in seems to come close to
breaching this principle. It is for this reason that the
criteria set out above must be adhered to.
However, remember that when a court performs a
reading in, it does not necessarily provide a final and
definitive determination of the rewritten section. The
legislature is free to amend it. When the legislature
does this, it engages in the kind of constitutional
dialogue which we discussed in chapter 2 on the
separation of powers. The legislature, therefore,
potentially has the final say on the exact wording of the
rewritten section.
As long as any amendments to the rewritten
section conform to the Constitution, the court will not
be able to interfere with the determination of the
wording made by the legislature. In this sense, reading
in is perhaps less radical than it may at first appear.
Lawyers must be aware, however, that reading in may
mean that the provisions of a statute as passed by
Parliament do not always accurately reflect its true
meaning as the Constitutional Court may have read
words into that statute.
This point is clearly illustrated by section 4(b) of
the Drugs and Drug Trafficking Act.69 Prior to the
judgment of the Constitutional Court in Minister of
Justice and Constitutional Development and Another v
Prince,70 section 4(b) prohibited, inter alia, the use or
possession of cannabis (dagga) in private by an adult
person for his or her own consumption. In Prince, the
Constitutional Court found that this prohibition was
unconstitutional and invalid because it unjustifiably
infringed the right to privacy guaranteed in section 14
of the Constitution.71 Apart from declaring the
prohibition invalid, however, the Court suspended its
order of invalidity for a period of 24 months to give
Parliament time to correct the constitutional defect. In
order to ensure that no adult could be arrested and
charged for using or possessing cannabis in private
during this period of suspension, the Court also read
words into section 4(b) as an interim measure. The
Court held in this respect that a new sub-paragraph
should be added to section 4(b) (sub-paragraph (vii))
and, that this new sub-paragraph should read as
follows:
(vii) in the case of an adult, the substance is cannabis and he or
she uses it or is in possession thereof in private for his or her
personal consumption in private.72

As a result of this order, the wording of section 4(b) as

it appears in the original signed version of the Drugs
and Drug Trafficking Act is incomplete. In order to
obtain a complete version of section 4(b) the original
wording has to be read together with the order of the
Constitutional Court. This complete version reads as
follows (the words read in by the Constitutional Court
are italicised):
No person shall use or have in his possession—

[…]

(b) any dangerous dependence-producing substance or any

undesirable dependence-producing substance, unless:
(i) he is a patient who has acquired or bought any
such substance—

(aa) from a medical practitioner, dentist or

practitioner acting in his professional
capacity and in accordance with the
requirements of the Medicines Act or any
regulation made thereunder; or

(bb) from a pharmacist in terms of an oral

instruction or a prescription in writing of
such medical practitioner, dentist or
practitioner, and uses that substance for
medicinal purposes under the care or
treatment of the said medical
practitioner, dentist or practitioner;

(ii) he has acquired or bought any such substance for

medicinal purposes—

(aa) from a medical practitioner, veterinarian,

dentist or practitioner acting in his
professional capacity and in accordance
with the requirements of the Medicines
Act or any regulation made thereunder;

(bb) from a pharmacist in terms of an oral

instruction or a prescription in writing of
such medical practitioner, veterinarian,
dentist or practitioner; or

(cc) from a veterinary assistant or veterinary

nurse in terms of a prescription in writing
of such veterinarian, with the intent to
administer that substance to a patient or
animal under the care or treatment of the
said medical practitioner, veterinarian,
dentist or practitioner;

(iii) he is the Director-General: Welfare who has

acquired or bought any such substance in
accordance with the requirements of the
Medicines Act or any regulation made thereunder;

(iv) he, she or it is a patient, medical practitioner,

veterinarian, dentist, practitioner, nurse, midwife,
nursing assistant, pharmacist, veterinary
assistant, veterinary nurse, manufacturer of, or
wholesale dealer in, pharmaceutical products,
 importer or exporter, or any other person
contemplated in the Medicines Act or any
regulation made thereunder, who or which has
acquired, bought, imported, cultivated, collected
or manufactured, or uses or is in possession of, or
intends to administer, supply, sell, transmit or
export any such substance in accordance with the
requirements or conditions of the said Act or
regulation, or any permit issued to him, her or it
under the said Act or regulation;

(v) he is an employee of a pharmacist, manufacturer

of, or wholesale dealer in, pharmaceutical
products, importer or exporter who has acquired,
bought, imported, cultivated, collected or
manufactured, or uses or is in possession of, or
intends to supply, sell, transmit or export any such
substance in the course of his employment and in
accordance with the requirements or conditions of
the Medicines Act or any regulation made
thereunder, or any permit issued to such
pharmacist, manufacturer of, or wholesale dealer
in, pharmaceutical products, importer or exporter
under the said Act or regulation;

(vi) he has otherwise come into possession of any

such substance in a lawful manner; or

(vii) in the case of an adult, the substance is cannabis

and he or she uses it or is in possession thereof
in private for his or her personal consumption in
private.

12.2.4 Severance
As we have already seen, section 172(1)(a) of the Constitution requires
a court to declare law or conduct invalid to the extent of its
inconsistency with the Constitution. A court, therefore, does not have to
declare an entire legislative provision unconstitutional and invalid if it is
possible to cut out the bad parts of the provision and retain the good
parts. This is called severance. When a court engages in severance it
strikes down a particular section, a particular subsection or the
individual words in a subsection of a law, but leaves the rest of the law
intact.
The test for severance is whether ‘the good is not dependent on the
bad’73 and whether the good can be separated from the bad. The
question that must be asked, therefore, is whether it is possible to give
effect to the good part of the provision that remains after the bad part
has been severed. In other words, after the bad part has been declared
invalid, will the good part still give effect to the main objective of the
statute? ‘The test has two parts: first, is it possible to sever the invalid
provisions [from the valid provisions] and second, if so, is what remains
giving effect to the purpose of the legislative scheme?’74
It is not always possible to sever the good from the bad while still
giving effect to the purpose of an impugned provision. In such a case,
the court has to declare the entire provision invalid.75 When it comes to
exercising this power, the courts are usually circumspect because of
concerns about overstepping the separation of powers. It is usually the
legislature – and not the judiciary – that should draft and amend
legislation. Severance would not be appropriate, for example, where an
offending legislative provision is so overbroad that the blame for the
constitutional invalidity of the section ‘cannot be laid at the door of any
one word, or group of words, but rather permeates the entire text’.76
In Case and Another v Minister of Safety and Security and Others,
Curtis v Minister of Safety and Security and Others,77 for example, the
Constitutional Court had to consider the constitutionality of a
censorship provision enacted during the apartheid era that was so
overbroad that it clearly infringed on the right to freedom of expression.
Given its overbroad nature, the Court could not sever the good from the
bad and had to strike down the provision as a whole. In arriving at this
conclusion, the Court held that if it had to:
apply a blue pencil to each and every noun form and transitive verb that
presents overbreadth problems, we effectively write a new provision that bears
only accidental resemblance to that enacted by Parliament. If, as appears to be
the case, the scheme behind the statute was to impose a comprehensive
scheme of censorship to give effect to a particular moral, cultural and political
world-view, it hardly does justice to the ‘main object’ thereof for this Court to
pare it down to prohibit only that discrete set of sexually-oriented expressions
that this Court believes may constitutionally be restricted. For this Court to
 attempt that textual surgery would entail it departing fundamentally from its
assigned role under our Constitution. It is trite but true that our role is to
review, rather than to re-draft, legislation. This Court has already had occasion
to caution against judicial arrogation of an essentially legislative function in
the guise of severance.78

12.2.5 Notional severance

Notional severance is often confused with reading down and is not an
easy remedy to understand. Like severance it allows the court to remove
the constitutionally invalid parts of a legislative provision, while leaving
the constitutionally valid parts intact. Unlike severance, however, the
offending words are not actually removed from the impugned
provision. Instead, the impugned provision is given a particular
meaning in the sense that the court instructs those who apply it that the
section can apply only to certain cases or in certain circumstances.
Notional severance also differs from reading down in that the words
in the impugned provision cannot reasonably be interpreted in the
manner provided by the court. If words can reasonably be interpreted in
a manner that would ensure that the impugned provision in the
legislation is constitutionally valid, the court is required to read down
that section to do so. With notional severance, the court instructs others
how to interpret and apply the section even when the words cannot
reasonably be said to encapsulate this instruction.79
Notional severance is usually deployed if other remedies would
leave an incongruous gap in the law. In Islamic Unity Convention v
Independent Broadcasting Authority and Others,80 for example, the
Constitutional Court found that a regulation which prohibited the
broadcasting of material that was ‘likely to prejudice relations between
sections of the population’81 was so broad that it prohibited, not only
constitutionally unprotected expression, for example hate speech, but
also constitutionally protected expression.
Given that the impugned regulation prohibited constitutionally
protected expression, the Court found further, it unjustifiably infringed
the right to freedom of expression. Despite coming to this conclusion,
however, the Court did not want to simply strike the impugned
regulation down. This is because such an order would not only strike
down the prohibition on broadcasting constitutionally protected
expression, but also the prohibition on broadcasting constitutionally
unprotected expression and this would result in a ‘dangerous gap’ in the
law which was ‘neither just and equitable nor in the public interest’.82
The only way in which it could retain the prohibition on
broadcasting constitutionally unprotected speech, while removing the
prohibition on broadcasting constitutionally protected speech, the
Court went on to hold, was not by striking the regulation down, but
rather by applying the principle of notional severance to the phrase
quoted above.83 The Court, therefore, declared the impugned regulation
to be inconsistent with section 16 of the Constitution and invalid to the
extent that it prohibits the broadcasting of material that is:
likely to prejudice relations between sections of the population; provided that
this order does not apply to (i) propaganda for war; (ii) incitement of imminent
violence; or (iii) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.84

Finally, it is important to note that a court will not always be able to use
notional severance. In National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others, for example, the
Constitutional Court pointed out that where:
the invalidity of a statutory provision results from an omission, it is not
possible, … to achieve notional severance by using words such as ‘invalid to the
extent that’, or other expressions indicating notional severance. An omission
cannot, notionally, be cured by severance … The only logical equivalent to
severance, in the case of invalidity caused by omission, is the device of reading
in.85

12.3 Limiting the retrospective effect of an order of

invalidity
As we have already seen, the doctrine of objective invalidity applies in
South Africa. One of the consequences of this doctrine is that any law or
conduct that is inconsistent with the Constitution is automatically
invalid from the moment the inconsistency arose.86 In those cases in
which law in the form of legislation is inconsistent with the
Constitution, it is important to note that not only is the legislation
invalid from the moment the inconsistency arose, but so are any actions
performed under the ostensible authority of that legislation. Obviously,
the retrospective invalidation of legislation and any actions taken in
good faith under the authority of ostensibly valid legislation could have
disruptive results.
As far as the retrospective effect of orders of invalidity is concerned,
the question we must ask is whether it is in the interests of justice that a
successful litigant should obtain the relief he or she is seeking. For
example, when a court invalidates the provisions of a law that
authorises the Department of Home Affairs to grant refugee status to
qualifying applicants, the previous granting of refugee status to
individual applicants in terms of the now nullified law would also
normally be invalid. Accordingly, the court must consider in every case
whether the interests of justice and equity justify limiting the
retrospective effect of a declaration of invalidity.
The Constitutional Court has identified the following five factors as
relevant to such a consideration:87
• The ‘interest of individuals must be weighed against the interest of
avoiding dislocation to the administration of justice and the
desirability of a smooth transition from the old to the new’ and the
interest of avoiding ‘the dislocation and inconvenience of undoing
transactions, decisions or actions taken under [the] statute’.88
• ‘Central to a consideration of the interests of justice in a particular
case is that successful litigants should obtain the relief they seek. It is
only when the interests of good government outweigh the interests
of the individual litigants that the Court will not grant relief to
successful litigants. In principle too, the litigants before the Court
should not be singled out for the grant of relief, but relief should be
afforded to all people who are in the same situation as the litigants.’89
• ‘No one, not criminal defendants, not the judicial system, not
society as a whole is benefited by a judgment providing a man shall
tentatively go to jail today, but tomorrow and everyday thereafter his
continued incarceration shall be subject to fresh litigation on issues
already resolved.’90
 The Constitutional Court has expressed doubt as to whether section
•
98(6) of the interim Constitution (section 172(1)(b)(i) of the final
Constitution) may be used by a court to direct that actions are
constitutionally valid despite having been taken in terms of any
proclamation issued under a law declared to be invalid.91

Usually, where the Constitutional Court decides to vary the

retrospective effect of its declaration of invalidity, it does so by
invalidating a statute prospectively in the sense that it may no longer be
applied from the date of the order in unresolved matters. At the same
time, its order operates retrospectively in the limited sense that where
appeal or review is still pending or the time for the noting of an appeal
has not yet expired, the unconstitutionality of the statute may be raised
on appeal.92
The situation that arose in the case of Corruption Watch NPC and
Others v President of the Republic of South Africa and Others; Nxasana v
Corruption Watch NPC and Others93 illustrates the Constitutional
Court’s approach. The case dealt with what was alleged to be the sham
retirement of Mr Mxolisi Nxasana as the National Director of Public
Prosecutions (NDPP). The Court found that then President Jacob Zuma
had paid Mr Nxasana a large amount of money to persuade him to
resign and that this was unlawful. As a consequence the subsequent
appointment of Advocate Shaun Abrahams as the NDPP was also
unlawful as he was appointed to a position that was not vacant at the
time when he was appointed. This meant that all decisions taken by
Advocate Abrahams would also be rendered invalid and unlawful. As
the Court pointed out, this would lead to chaos. ‘The setting aside of
decisions taken, and acts performed, by Advocate Abrahams in his
official capacity before his appointment was declared invalid would
result in untold dislocation in the work of the NPA and in the
administration of justice itself.’94 The Court therefore declared as part of
its remedy that ‘[d]ecisions taken, and acts performed, by Advocate
Abrahams in his official capacity will not be invalid.’95
 Using a qualified retrospective order
In National Coalition for Gay and Lesbian Equality and
Another v Minister of Justice and Others,96 the
Constitutional Court declared invalid the common law
rule that criminalised sodomy between adult men,
even where this occurred consensually and in private.
A crucial question that had to be answered was
whether the retrospective effect of this invalidation
should be curtailed.
The Court argued in this respect that it would be
‘manifestly and grossly unjust and inequitable that
such convictions should not be capable of being set
aside [as] people have been convicted of an offence
which – because of the principle of objective
constitutional invalidity – had ceased to exists as an
offence when the interim Constitution came into force
on 27 April 1994’.97
At the same time, however, the Court argued
further, an unqualified retrospective order may have
undesirable consequences as the common law rule
was used to convict and punish not only consensual
acts of sodomy between adult men in private, but also
acts of male rape. The Constitutional Court, therefore,
found that:
The least disruptive way of giving relief to persons in respect of
past convictions for consensual sodomy is through the established
court structures. On the strength of the order of constitutional
invalidity such persons could note an appeal against their
convictions for consensual sodomy, where the period for noting
such appeal has not yet expired or, where it has, could bring an
application for condonation of the late noting of an appeal or the
late application for leave to appeal to a court of competent
jurisdiction. In this way effective judicial control can be exercised.
Although this might result in cases having to be reopened, it will
in all probability not cause dislocation of the administration of
justice of any moment. We should, however, limit the retrospective
effect of the order declaring the offence of sodomy to be
 constitutionally invalid to cases of consensual sodomy. In respect
of all other cases of sodomy, the order should be limited to one
which takes effect from the date of this judgment. This is
essential, in my view, to prevent persons convicted of sodomy
which amount to ‘male rape’ from having their past convictions
set aside. To permit this would be neither just nor equitable. In
the absence of such a limitation confusion might arise, upon a
conviction being set aside in such cases, as to whether a
conviction of indecent assault or assault with intent to do grievous
bodily harm, could validly be substituted.98

12.4 Suspension of an order of invalidity

Where a court declares legislation or conduct invalid, this order will
normally have immediate effect. However, section 172(1)(b)(ii) of the
Constitution allows a court temporarily to suspend the effect of a
declaration of invalidity in the interests of justice and equity after
finding the law to be inconsistent with the Constitution. When the court
suspends its order of invalidity, the invalid legislative provision remains
operative on condition that Parliament corrects the defect within a
prescribed period of time. If the defect is corrected with the prescribed
period of time, the declaration falls away and any decisions or actions
taken in terms of the law are regarded as valid. If the defect is not
corrected, the declaration of invalidity takes place at the expiry of the
prescribed period of time and the normal consequences attaching to
such a declaration ensue.99
A suspension of an order of invalidity is used sparingly as it has the
effect of not providing immediate and effective relief to the successful
litigant. Where the invalidity arises in a complex case in which
‘multifarious and nuanced legislative responses … might be available to
the legislature’ to resolve the problem, the court may suspend its order
of invalidity and provide the legislature with a grace period to resolve
the problem.100 As the Constitutional Court explained in J and Another v
Director General, Department of Home Affairs and Others, a suspension
of an order of invalidity is also appropriate where a lacuna or gap would
be left in the law if the impugned provision is declared invalid:
 The suspension of an order is appropriate in cases where the striking down of a
statute would, in the absence of a suspension order, leave a lacuna. In such
cases, the Court must consider, on the one hand, the interests of the successful
litigant in obtaining immediate constitutional relief and, on the other, the
potential disruption of the administration of justice that would be caused by
the lacuna. If the Court is persuaded upon a consideration of these conflicting
concerns that it is appropriate to suspend the order made, it will do so in order
to afford the legislature an opportunity ‘to correct the defect’. It will also seek to
tailor relief in the interim to provide temporary constitutional relief to
successful litigants.101

A court may also suspend an order of invalidity where the defect in the
impugned legislation is purely procedural, for example, in cases where
Parliament has failed to facilitate adequate public involvement in the
law-making process.102 It would also not be appropriate to invalidate
legislation immediately where such an order would be ‘chaotic and
prejudicial to the interests of justice and good government’.103 A court is
more likely to exercise its powers to suspend the invalidity of pre-
constitutional legislation than post-constitutional legislation.104 When it
declares post-constitutional legislation invalid, it will only suspend the
order ‘where the result of invalidating everything done under such
legislation is disproportional to the harm which would result from
giving the legislation temporary validity’.105
A court looks at the precise circumstances of each case to determine
whether the order of invalidity should be suspended.106 A court does not
normally suspend an order of invalidity if the provisions are so ‘clearly
inconsistent’ with a fundamental right and ‘manifestly indefensible’
under the general limitation clause that there is ‘no warrant for its
retention, not even temporarily’.107 This means that there have to be
persuasive reasons to exercise the power to suspend before a court will
do so.108 In cases where the legislation limits a right of heightened
importance – such as the right not to be unfairly discriminated against
guaranteed in section 9 of the Constitution – the Constitutional Court
has found that:
those subject to the impugned provisions should not be made to wait much
longer to be relieved of the burden of inequality and unfair discrimination …
[as] … that would mean that the benefits of the Constitution would continue to
be withheld from those who have been deprived of them for so long.109
This places a burden on a litigant seeking a suspension of an order of
invalidity (usually the state) to persuade the court to exercise its powers
in terms of section 172(1)(b)(ii) of the Constitution in the interests of
justice and equity.110 It is important that all relevant information is
placed before the court when it is asked to suspend an order of
invalidity. The information must relate to the consequences of an order
of invalidity and the time that will be needed to remedy the defect in the
legislation.111
The time provided to the legislature to correct the defect depends on
the ‘complexity and variety of the statutory and policy alternatives’
available to Parliament.112 Sometimes, proper legislation passed by
Parliament is the only appropriate manner with which to deal with a
constitutional defect in legislation.113
A suspension of an order of invalidity can be seen as a technique
used by the Constitutional Court to manage the separation of powers
tensions that may arise from invalidating legislation. As such, it can be
seen as part of the constitutional dialogue between the three branches
of government mentioned above. A consequence of this is that the
power of the legislature is only partly circumscribed by the suspended
order of invalidity. As long as the legislature amends the law to bring it
into harmony with the Constitution, it has a wide discretion to choose
the means to achieve this goal.
While Parliament (or any other legislature) may choose to correct
the defect in the invalidated law within the period specified, it need not
do so. If it chooses not to correct the defect in the period provided, the
suspension will fall away and the law or provision will become invalid.
The legislature may also take other steps to address the effect of the
declaration of invalidity. In the latter two situations, the declaration of
invalidity will come into effect on the specified date.114

Suspending an order of invalidity

In Minister of Home Affairs and Another v Fourie and
Another,115 the Constitutional Court declared invalid
the common law definition of marriage (as well as an
omission in the Marriage Act116) because it did not
permit same-sex couples to enjoy the status and the
benefits it accords to heterosexual couples. However, a
majority (per Sachs J) suspended this order for 12
months from the date of the judgment to allow
Parliament to correct the defects. The majority ruled
further that if Parliament did not correct the defects
within this period, the order of invalidity would take
effect.117 The majority based this decision on the
political and pragmatic ground that same-sex
marriages were more likely to be accepted as
legitimate by the general public if the order of invalidity
was suspended and Parliament was given an
opportunity to correct the defect:
This is a matter involving status that requires a remedy that is
secure. To achieve security it needs to be firmly located within the
broad context of an extended search for emancipation of a
section of society that has known protracted and bitter
oppression. The circumstances of the present matter call out for
enduring and stable legislative appreciation. A temporary
remedial measure would be far less likely to achieve the
enjoyment of equality as promised by the Constitution than would
lasting legislative action compliant with the Constitution. The
claim by the applicants in Fourie of the right to get married
should, in my view, be seen as part of a comprehensive wish to be
able to live openly and freely as lesbian women emancipated from
all the legal taboos that historically have kept them from enjoying
life in the mainstream of society. The right to celebrate their union
accordingly signifies far more than a right to enter into a legal
arrangement with many attendant and significant consequences,
important though they may be. It represents a major symbolical
milestone in their long walk to equality and dignity. The greater
and more secure the institutional imprimatur for their union, the
more solidly will it and other such unions be rescued from legal
oblivion, and the more tranquil and enduring will such unions
ultimately turn out to be.118

In a minority judgment O’Regan J disagreed with the

majority, pointing out that the ‘effect of this order is
that gay and lesbian couples will not be permitted to
 marry during [the period of suspension]’.119 O’Regan J
stated that this case concerned the development of
the common law by the courts, a responsibility that
lies, in the first place, with the courts and not with the
legislature.120 This is why the Court ought to have
developed the common law with immediate effect to
permit gays and lesbians to be married by civil
marriage officers.121 The doctrine of the separation of
powers cannot be used ‘to avoid the obligation of a
court to provide appropriate relief that is just and
equitable to litigants who successfully raise a
constitutional complaint’.122 According to O’Regan J,
the power and duty to protect constitutional rights is
conferred on the courts. This means the:
courts should not shrink from that duty. The legitimacy of an order
made by the Court does not flow from the status of the institution
itself, but from the fact that it gives effect to the provisions of our
Constitution. Time and again, there will be those in our broader
community who do not wish to see constitutional rights protected,
but that can never be a reason for a court not to protect those
rights.123

Given the Constitutional Court’s previous judgments in

which it held that where the right implicated is of
specific importance, a suspension would not ordinarily
be granted, and in the absence of technical
impediments to an immediate invalidation of the
impugned provisions, it appears as if O’Regan J’s view
is more consistent with precedent.

12.5 Meaningful engagement

Some remedies are aimed at directing the parties to act in a manner
more in accordance with the notion of participatory democracy. Courts
can use these remedies to help deepen democracy and empower
citizens who can easily feel alienated from the bureaucratic state. One
such a remedy is the remedy of meaningful engagement. This remedy
is similar in effect to a structural interdict, discussed at 12.8.1 below.124
The Constitutional Court granted this remedy for the first time in its
judgment in Occupiers of 51 Olivia Road, Berea Township and 197 Main
Street Johannesburg v City of Johannesburg and Others.125
In this case, the Constitutional Court held that it would be
unconstitutional for the City of Johannesburg to evict unlawful
occupiers without first engaging with them, individually and
collectively, in a meaningful manner. In arriving at this decision, the
Constitutional Court stated that the City:
must respect, protect, promote and fulfil the rights in the Bill of Rights. The
most important of these rights for present purposes is the right to human
dignity and the right to life. In the light of these constitutional provisions a
municipality that ejects people from their homes without first meaningfully
engaging with them acts in a manner that is broadly at odds with the spirit and
purpose of the constitutional obligations set out in this paragraph taken
together.126

Apart from human dignity and the right to life, the Court also stated that
the duty to engage meaningfully with people who may be rendered
homeless after being evicted is squarely grounded in section 26(2) of
the Constitution. This is because section 26(2) imposes an obligation on
every sphere of government to take reasonable legislative and other
measures, within its available resources, to achieve the progressive
realisation of the right of access to adequate housing.127
The test for reasonableness, the Court went on to state, does not
only impose an obligation on the City to engage meaningfully with
potentially homeless persons, but also to respond to the concerns they
raise during that process in a reasonable manner. This means that in
some cases it may be reasonable to make permanent housing available
and, in others, to provide no housing at all. The possibilities between
these extremes are almost endless. As long as the response of the
municipality in the engagement process is reasonable, however, that
response complies with section 26(2).128
In the same judgment, the Constitutional Court also stated that
engagement is a two-way process in which the City and those about to
become homeless would talk to each other meaningfully in order to
achieve certain objectives. While there is no closed list of objectives, the
sorts of objectives that ought to be achieved when a city wishes to evict
people who may be rendered homeless as a result of the eviction are as
follows:
(a) what the consequences of the eviction might be;
(b) whether the city could help in alleviating those dire consequences;
(c) whether it was possible to render the buildings concerned relatively safe
and conducive to health for an interim period;
(d) whether the city had any obligations to the occupiers in the prevailing
circumstances; and
(e) when and how the city could or would fulfil these obligations.129

The order granted by the Constitutional Court thus provided as follows:

1. The City of Johannesburg and the applicants are required to engage with
each other meaningfully and as soon as it is possible for them to do so in
an effort to resolve the differences and difficulties aired in this application
in the light of the values of the Constitution, the constitutional and
statutory duties of the municipality and the rights and duties of citizens
concerned.
2. The City of Johannesburg and the applicants must also engage with each
other in an effort to alleviate the plight of the applicants who live in the two
buildings concerned in this application by making the buildings safe and
as conducive to health as is reasonably practicable.
3. The City of Johannesburg and the applicants must file affidavits before this
Court on or before 3 October 2007 reporting on the results of the
engagement between the parties as at 27 September 2007.130

The agreement reached between the parties also contained interim

measures to secure the safety of the building and to provide the
unlawful occupiers with alternative accommodation in the inner City of
Johannesburg. These interim measures included the provision, at the
City’s expense, of toilets, potable water, waste disposal services, fire
extinguishers and a once-off operation to clean and sanitise the
properties. The City and the unlawful occupiers also agreed that the
alternative accommodation would consist of security against eviction,
access to sanitation, access to potable water, and access to electricity for
heating, lighting and cooking. The City also accepted that it could
decide on the nature and location of permanent housing for the
unlawful occupiers only in consultation with them.
 Meaningful engagement as a means of
enhancing participatory democracy
As Chenwi has argued, the remedy of meaningful
engagement is ‘a progressive and effective remedy
capable of promoting social transformation and
enhancing participatory democracy and transparency
and accountability’.131
Meaningful engagement, she argues further,
recognises the core importance of fostering
participation, especially by those confronted with the
prospect of eviction. The remedy thus ‘fits into the
Constitutional Court’s vision of the kind of democracy
the South African Constitution establishes’.132
Support for this view is the well-known case of
Doctors for Life International v The Speaker of the
National Assembly and Others133 where the
Constitutional Court held that our constitutional
democracy contemplates both representative as well
as participatory democracy.

12.6 Constitutional damages

Damages is a concept that is usually associated with private law
relationships. Damages refers to a sum of money paid to a person to
compensate him or her for harm caused by the wrongful conduct of the
state or another individual. Damages can also be paid to mitigate future
loss a person will suffer as a result of the wrongful conduct of the state
or another individual.
The Constitutional Court has accepted that there may be cases
where the payment of compensation can vindicate the values
underlying the Constitution or where it may deter and prevent future
infringements of rights. In short, constitutional damages will be
appropriate where such an award is necessary to protect and enforce
the rights contained in the Bill of Rights.134 Such damages could be
awarded to recover for patrimonial loss, pain and suffering, loss of
amenities, contumelia and other general damages. However, the Court
suggested in Fose v Minister of Safety and Security that it would not
normally not be appropriate to award punitive constitutional
damages.135 The Court endorsed the following criticism of punitive
damages:
• There is no evidence that punitive damages do have a deterrent
effect.
• Punitive damages provide the plaintiff with an unjustifiable
windfall.
• Punitive damages exact punishment without the protection which
the criminal law affords.
• In those cases where punitive damages are awarded against the
government, the cost involved is almost inevitably shifted to the
public at large.136

In cases where a plaintiff is able to claim delictual damages or has

already been awarded such damages in terms of the common law, a
court will also be reluctant to award constitutional damages. This is
because a person cannot benefit twice from the harm he or she has
suffered.
The remedy of constitutional damages is still being developed by our
courts and is not often employed. But in principle, there is nothing to
prevent a court from awarding constitutional damages in the
appropriate circumstances. When it would be appropriate to do so, and
what the measure of damages should be, will depend on the
circumstances of each case and the particular right which has been
infringed. The existing case law suggests that despite these general
principles, and in some cases as an exception to these principles, there
are at least three situations in which a court would be prepared to award
constitutional damages.
First, courts have awarded constitutional damages when the plaintiff
is performing the state's obligation on its behalf. For example, the
Constitutional Court awarded constitutional damages in the case of
President of the Republic of South Africa and Another v Modderklip
Boerdery (Pty) Ltd137 after 80 000 people occupied the property of
Modderklip Boerdery and it became either impossible or ethically
untenable to remove the occupiers from the land. In such
circumstances, in which the Court wanted to vindicate the property
rights of Modderklip Boerdery while also respecting the need of the
unlawful occupiers to access some form of accommodation, the Court
awarded compensation to the owner of the illegally occupied property.
The Constitutional Court argued that such an award compensated
Modderklip for the unlawful occupation of its property in violation of its
rights, while also ensuring that the unlawful occupiers would continue
to have accommodation until suitable alternatives were found and it
relieved the state of the urgent task of having to find such alternatives.138
The award of damages was further endorsed by the fact that the
Constitutional Court was acutely aware of the fact that Modderklip had
been forced into a dead-end by the unlawful occupation of its land and
the recalcitrant behaviour of the state in assisting it to enforce the
interdict to have the settlers removed. However, the Modderklip case is
certainly not authority for the proposition that constitutional damages
are always available.139
Second, courts have awarded constitutional damages when the
compensation awarded was already owing to the plaintiff. For example
in MEC for the Department of Welfare v Kate140 the Supreme Court of
Appeal ordered the payment of constitutional damages in a case in
which a disability grant application was approved only 37 months after
it was lodged. As section 27 of the Constitution guarantees for everyone
the right of access to social assistance, the failure to deal with the
application within a reasonable time constituted a rights breach. What
aggravated the situation is that this was just one of literally thousands of
cases in which peoples’ applications for grants were mishandled. The
problem, therefore, was systemic. Although delictual remedies in
accordance with the common law were available, the Court
nevertheless ordered the payment of constitutional damages, providing
two reasons for this decision:
 First, I see no reason why a direct breach of a substantive constitutional right
(as opposed to merely a deviation from a constitutionally normative standard)
should be remedied indirectly. Secondly, the endemic breach of the rights that
are now in issue justifies – indeed, it calls out for – the clear assertion of their
independent existence.141

In the light of these reasons, the Court concluded that the only
appropriate remedy in the circumstances was to award constitutional
damages to recompense Kate for the breach of her right. In deciding
how to measure that loss in monetary terms, the Court took into
account the following:
It has not been shown that Kate suffered direct financial loss and it is most
unlikely that she did, for the grant was destined to be consumed and not
invested, but the loss was just as real. To be held in poverty is a cursed
condition. Quite apart from the physical discomfort of deprivation it reduces a
human in his or her dignity. The inevitable result of being unlawfully deprived
of a grant that is required for daily sustenance is the unnecessary further
endurance of that condition for so long as the unlawfulness continues. That is
the true nature of the loss that Kate suffered. There is no empirical monetary
standard against which to measure a loss of that kind … in the absence of such
a measure she should be awarded an amount equivalent to the interest that is
recognised in law to be payable when money is unlawfully withheld.142

Third, courts have awarded constitutional damages where the plaintiff

was so poor that it would not have made financial or practical sense to
sue in delict. For example, in Ngomane and Others v City of
Johannesburg Metropolitan Municipality and Another,143 the Supreme
Court of Appeal awarded constitutional damages to a group of destitute,
homeless people who lived on a traffic island under a highway bridge in
Johannesburg after the Municipality removed and destroyed their
personal effects stored under the bridge. The Court held that the actions
of the municipality were unlawful and in breach of the group’s rights to
dignity, privacy and not to be deprived of their property. As it was not
possible to return the group’s property, the ordinary course of action
would have been to institute a claim for damages in terms of the
common law, but the Court held that this would not be appropriate due
to the practical difficulties involved. The Court explained that:
 Instituting a damages claim would involve them in costly and time-consuming
civil litigation in respect of property, which although valuable to them, is
otherwise mostly of trifling commercial value. The undisputed evidence is that
many of the applicants daily search for work and collect recyclable materials,
which they sell in order to survive. They would be hindered in this if they were
required to attend court proceedings. They have no money for transport to
attend court. And for the very reason that it would not be possible for them to
prove the market value of the property destroyed in the conventional way, an
action for damages is not an appropriate remedy. Such an action is likely to fail
or result in a nominal award of damages.144

The Court held that in these circumstances the awarding of

constitutional damages would constitute appropriate relief in the
specific circumstances of this case as it ‘will vindicate the Constitution
and protect the applicants and others similarly situated against
violations of their rights to dignity and property’.145

Social assistance grants as a form of

constitutional damages
Currie and De Waal argue that various judgments in
which the courts have awarded social assistance
grants to litigants may be seen as a form of
constitutional damages. Referring to a slew of cases
that arose in the mid-1990s, in which many grant
holders successfully challenged the unlawfulness of
the termination of their grants, but the reinstatement of
grants or the payment of moneys owed was delayed,
the authors argue as follows:
Faced with increasing numbers of applicants for welfare grants,
the [provincial governments] soon started to fall behind with the
processing of applications. This generated a second phase of
litigation.146

Rather than granting the usual mandamus remedy

where there was a delay, the courts started to
substitute their own decisions for those of government
 on a wide scale. If a decision was not made within a
reasonable time, the High Courts were prepared, as a
form of ‘constitutional relief’, to approve social
assistance grants themselves, in addition ordering
government to make available back-payment and
interest. To an extent, the courts became an alternative
forum for the processing of social grants.

12.7 A declaration of rights

Section 38 of the Constitution provides that when a right in the Bill of
Rights has been infringed or threatened, a competent court may grant
appropriate relief, including a declaration of rights. A declaration of
rights is a non-invasive remedy as it clarifies what a litigants rights really
are, but does not contain an order on how to remedy the breach of
rights. In Rail Commuters Action Group v Transnet Ltd t/a Metrorail, the
Constitutional Court explained that ‘declaratory relief is of particular
value in a constitutional democracy [because it] enables courts to
declare the law, on the one hand, but leave to the other arms of
government, the executive and the legislature, the decision as to how
best the law, once stated, should be observed’.147
It is important to distinguish between a declaration of rights and a
declaration of invalidity. This is because a declaration of rights is aimed
only at resolving a dispute between specific parties and may be given
even when no law or conduct has been found to be inconsistent with
the Bill of Rights.148 In addition, a declaration of rights, unlike a
declaration of invalidity, is a discretionary remedy in the sense that the
claim lodged by an interested party for such an order does not in itself
oblige the court handling the matter to respond to the question which it
poses.149
The fact that a declaratory order is a discretionary remedy is
illustrated by the Constitutional Court’s judgment in Langa CJ and
Others v Hlophe.150 In this case the judges of the Constitutional Court
laid a complaint of judicial misconduct against the Judge President of
the Western Cape High Court with the Judicial Service Commission and
then issued a media statement setting out the details of their complaint.
The complaint arose out of two visits the Judge President made to
the Constitutional Court in 2008 while it was hearing an appeal against
warrants authorising the Directorate of Special Operations (the
Scorpions) to search and seize property from former President Zuma’s
official offices and private residences. The search warrants were issued
as part of an investigation into allegations of corruption against former
President Zuma.
During his first visit, the Judge President approached Acting Justice
Chris Jafta (as he then was) in his chambers at the Constitutional Court
and allegedly advised him that the case against former President Zuma
should be looked at properly and stated that Justice Jafta was their last
hope (‘sesithembele kinina’ which may be translated as ‘we pin our
hopes on you’).
During his second visit, the Judge President approached Justice Bess
Nkabinda and also raised the case against former President Zuma. He
allegedly stated ‘that the issue of privilege was an important aspect of
the case for the prosecution’ and that ‘if the point raised by Mr Zuma’s
counsel were to be sustained there would be no case against Mr Zuma’.
The Judge President also stated that ‘he had a mandate to act as he was
doing’.151
After the judges of the Constitutional Court laid their complaint and
issued their media statement, the Judge President laid a counter
complaint with the JSC and then applied to the Johannesburg High
Court for an order declaring that the Constitutional Court has violated
his constitutional right to a hearing by laying the complaint and then
issuing the media statement without first informing him or asking him
for his version.
After the Johannesburg High Court granted the declaratory order,
the judges of the Constitutional Court appealed to the Supreme Court of
Appeal. The SCA upheld the appeal and refused to grant the declaratory
order. In arriving at this decision, the SCA held that the judges of the
Constitutional Court were not obliged to give the Judge President a
hearing. This is because the constitutional right to a hearing is not
binding on private individuals and the judges laid the complaint as
private individuals and not as the Constitutional Court itself:
The duty to hear a person was at common law always limited to judicial or
some administrative organs; and a person acting in a private capacity has
never had such a duty. The Constitution is not different. The audi principle can
only be sourced in either s 33 or s 34 of the Bill of Rights: the former deals with
just administrative action and the latter with a fair public hearing before
courts. Since the appellants did not “act as a court” the fair trial provision did
not arise and since they did not act as an administrative body the
administrative justice provision did not apply either.152

Declaratory orders are routinely used alongside structural interdicts

whereby a court declares the aspects in which the state has fallen short
of its constitutional obligations and then requires compliance by way of
a structural interdict. This enables the court to assert its role in
performing the ‘watchdog’ function by proclaiming what a right in the
Constitution entails and how it should be interpreted. It then further
allows the court to retain jurisdiction over the case through the
structural interdict.

12.8 An interdict
Interdicts are usually directed at future events and compel a defendant
(or any party to the litigation) to perform a task or to refrain from
undertaking a specific course of action. As such, interdicts usually take
the form of a mandamus (a mandatory interdict) or a prohibitory
interdict.

12.8.1 Structural Interdicts

A structural interdict is also referred to as a supervisory interdict. It is a
type of injunction which ‘requires the government to report back to the
court at regular intervals about the steps taken to comply with the
Constitution’.153 Essentially, this interdict compels the violator to rectify
the breach of fundamental rights under court supervision. This is
usually achieved by requiring the official to report to the court on his or
her efforts to comply with the order. This allows the courts to exercise a
monitoring role over the administration of the order in cases that affect
individual rights. Structural interdicts are often used when the courts
are faced with any form of recalcitrant or incompetent official
behaviour.
The advantages associated with this type of remedy were highlighted
by the Constitutional Court in its judgment in Pheko and Others v
Ekurhuleni Metropolitan Municipality and Others (Pheko II), where the
Court held that:
Supervisory orders arising from structural interdicts ensure that courts play an
active monitoring role in the enforcement of orders. In an appropriate case,
this guarantees commitment to the constitutional values of accountability,
responsiveness and openness by all concerned, in a system of democratic
governance. By granting the structural interdict a court secures a response in
the form of reports and thereby prevents a failure to comply with the positive
obligations imposed by its order. Generally, the court’s role continues until the
remedy it has ordered in a matter has been fulfilled.154

Although a structural interdict has a number of advantages, it is also an

invasive remedy. This is because it allows the courts to inspect proposed
plans and to ensure that they are not constitutionally suspect.155 Despite
its invasive nature, however, this remedy is used to avoid violating the
separation of powers doctrine since the courts defer to the authority
and expertise of the executive arm of government by allowing the
relevant government department to formulate plans to give effect to the
Constitution.
The problem with most of the constitutional remedies discussed in
this chapter is that such remedies are not well suited to address
systemic breaches of constitutional rights that are often caused by
governance failures. Thus remedies ‘merely’ aimed at vindicating the
rights of individual litigants will bring relief to the litigants and similarly
situated individuals, but will seldom begin to fix the problems which
caused the constitutional breach. Structural interdicts are an exception
to this rule as they allow courts to take a more active role in ensuring
that systemic breaches of constitutional rights do not recur. A tragic
example of a case in which a structural interdict might be the only hope
of fixing an endemic problem can be found in the case of Michael
Komape. Five-year-old Michael Komape had just started Grade R at
Mahlodumela Lower Primary School at Chibeng village near Seshego in
Limpopo. On his third day of school, he went to the toilet on the school
premises, but never returned.156 Michael had fallen into the pit toilet at
school.157 Michael’s family sued the Minister of Basic Education in
delict, but also asked the Court to rule on the fact that the Department
had failed over many years to replace pit latrines at many rural schools,
despite the fact that this was budgeted for. In Komape and Others v
Minister of Basic Education,158 the High Court rejected the damages
claim (this was reversed on appeal to the Supreme Court of Appeal)159
but the Court did order the Department to supply and install at each
rural school currently equipped with pit latrines in the Province of
Limpopo with a sufficient number of toilets for each school. But it went
further and imposed a structural interdict, ordering the Department to
furnish the Court with plans on how it was going to give effect to the
order and to report back to the Court on the dates on which the work
will be completed. The Court explained that this was necessary because:
a declaration of rights will not sufficiently vindicate the rights of the learners
attending rural schools in this Province. A declaration of rights where learners
at school are exposed to danger, when going to a toilet on the school premises,
will hardly be of any value to the learners and parents and will serve no
immediate purpose … a structural interdict is the only appropriate remedy that
is just and equitable which will effectively vindicate the Constitution. The best
interests of all learners at schools with pit toilets must take preference. It is the
only means by which the state will be compelled to take active steps to provide
the lacking basic sanitary requirements to learners in those schools.

Initially, the Constitutional Court was reluctant, or at least appeared to

be reluctant, to issue structural interdicts. However, this is no longer the
case and the Court has issued structural interdicts on a number of
occasions, especially in eviction cases.160 The first time the Court issued
a structural interdict was in the case of August and Another v Electoral
Commission and Others.161 After finding that the Electoral Commission
had violated prisoners’ rights to vote by making no arrangements for
them to register as voters and thus to vote, the Court issued an order
instructing the Commission, not only to rectify the violation of
constitutional rights, but also to submit an affidavit within two weeks
setting out exactly how it intended to comply with the Court’s order.
The Constitutional Court issued its second structural interdict in the
case of Sibiya and Others v Director of Public Prosecutions:
Johannesburg High Court and Others (Sibiya I).162 This case arose out of
the Court’s earlier decision in S v Makwanyane and Another,163 where it
declared the death penalty to be unconstitutional and ordered the
sentences of condemned prisoners to be substituted with another
lawful punishment. Unfortunately, this process did not receive the
attention it deserved from the government and a decade later it was still
not complete. After finding that ‘[t]he process of the substitution of
sentences has taken far too long’,164 the Court issued a structural
interdict. The order required the government to submit a
comprehensive plan to the Court on how it intended to finalise the
process and, after doing so, a final judgment was handed down
resolving the matter.165
In Residents of Joe Slovo Community, Western Cape v Thubelisha
Homes and Others,166 the Constitutional Court issued an order evicting
the residents of the Joe Slovo Informal Settlement in Cape Town.
Together with the eviction order, however, the Court also ordered the
applicants and the respondents, through their respective
representatives, to engage meaningfully with each other with a view to
reaching agreement on how the eviction should occur. In addition, the
Court instructed the parties to report back to it on the implementation
of its order as well as the allocation of permanent housing opportunities
to those affected by the eviction. It further instructed that in the event of
the order not being complied with by any party, or in the event of
unforeseen difficulties, any party would have the right to approach the
Court for an amendment, supplementation or variation of its order.
Structural interdicts usually take the form of a series of steps in
pursuit of achieving the mutually acceptable and achievable
implementation of a plan that provides for constitutional entitlements.
The steps are as follows:
• The starting point is a declaration by the court that the conduct in
question is unconstitutional and invalid.
 Thereafter, the court sets out the steps which must be taken to bring
• the unconstitutional conduct in line with the constitutional
imperatives.
• This process, however, is not a dictatorial, top-down one. Instead,
the court invites the government department that has failed to
perform its constitutional obligations to submit a comprehensive
plan. This plan must remedy the infringement of the Constitution.
• After the court has issued its order, the government department
must draw up the plan, taking into account its budgetary and
human resource constraints. It must also take into account the
sustainability of the plan in terms of the timeframe set for its
implementation. The department must also set a series of
achievable deadlines so that progress can be monitored.
• Once the department has drawn up the plan, it must present the
plan to the court. At this stage, the court will invite the plaintiff and
any other interested parties to the litigation to submit comments on
the plan.
• After the court has considered these comments, it will incorporate
those it agrees with into the plan. The plan then becomes a binding
order of court, which the department must implement strictly in
accordance with the deadlines and achievable targets set out in the
plan.

When the state fails to obey court orders

If the responsible government department does not
draw up and submit a plan to the court, the court will
draw up its own plan which the government
department will have to implement. In such a case, the
court may rely on the assistance of any other parties to
the litigation. The fact that the court is willing to draw
up its own plan in these sorts of circumstances may be
criticised on the ground that it is intruding into the
 domain of the executive by formulating policy choices
and deciding on methods of implementation.
This argument can be countered, however, with
reference to the rule of law which is a founding value of
our constitutional democracy. In South Africa, many
people do not have the financial or other resources to
approach a court to have the legal duties owed to
them enforced. When an order is handed down by a
court, the rule of law is seriously threatened if the state
fails to obey court orders.
The provisions of section 34 of the Constitution,
read together with sections 165 and 173, place a
positive duty on the state to ensure respect for the rule
of law and adherence to the law by providing citizens
with effective mechanisms for resolving disputes
between themselves or between themselves and the
state. Failure to comply with court orders then
represents an attack on the effectiveness of the legal
system and the right to have legal duties enforced by
the state.

Apart from drawing up and submitting a comprehensive plan to the

court, the responsible government department must also provide
continuous feedback to the court on the status and success of the
implementation of the plan according to the deadlines contained in the
plan. In some instances, independent bodies, such as the South African
Human Rights Commission, may be appointed to monitor the
implementation of the plan.
When the matter is heard in court, the defendant, the monitoring
body and other interested parties are entitled to address the court on
the progress achieved in implementing the plan. If the plan is seen to be
deficient or unachievable, it may be amended and the amended plan
then becomes the order of court. This is repeated until such time as the
constitutional norms have been achieved.
 Although government departments are required to strictly
implement structural interdicts in accordance with the deadlines and
achievable targets contained in the remedial plan itself, they are not
always able or willing to do so in practice and the courts have been
forced to extend the deadlines, amend the targets and even punish
recalcitrant public officials by, for example, granting personal costs
orders against them.167

SUMMARY

In every case of a prima facie violation (or threatened violation) of rights

or the perceived contravention of the Constitution, one of the first
questions the legal representative will ask is, ‘What remedy do we want
in order to vindicate the clients’ right?’ The remedy being sought will
usually inform how the case is structured and argued. This is in
accordance with the Latin maxim ubi ius ubi remedium – where there
is a right, there is a remedy. This is the defining principle of the South
African legal order with respect to the enforcement of the Constitution.
It would be nonsensical for the Constitution to prescribe a
comprehensive set of rights if there were no mechanisms created to
uphold those rights. Therefore, with regard to the effectiveness of courts
in awarding appropriate and enforceable remedies, it is appropriate to
quote the late Chief Justice Mahomed when he said:
Unlike Parliament or the executive, the courts do not have the power of the
purse or the army or the police to execute their will. The highest courts in
constitutional democracies do not have a single soldier at their command.
They would be impotent to protect the Constitution if the agencies of the state
that control the massive financial and physical resources refuse to command
those resources to enforce the orders of the courts. The courts could easily be
reduced to paper tigers with ferocious capacity to snarl and to roar but no teeth
with which to bite and no sinews to execute their judgments which may be
reduced to pieces of sterile scholarship, toothless wisdom or pious poetry. As
already happened many times, the potentially awesome theoretical power of
the judiciary in the Constitution could, in those circumstances, implode into
nothingness. Judges in such circumstances would visibly be demeaned. But
much, much worse, human rights could irreversibly be impaired and
civilisation itself dangerously imperilled.168
Invalidating legislation can have drastic consequences. Courts use
various techniques to limit the drastic consequences of orders of
invalidity, including suspending an order of invalidity to give
Parliament a chance to remedy the defect, severing the bad parts of a
provision from the good without invalidating an entire section and
reading words into the statute to render it constitutionally valid.

1 Du Plessis, M, Penfold, G and Brickhill J (2013) Constitutional Litigation 107.

2 Zakrzewski, R (2005) Remedies Reclassified 13.
3 Klare, K (2008) Legal subsidiarity and constitutional rights: A reply to AJ van der Walt
Constitutional Court Review 1:129–40 at 140.
4 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC)
(29 November 1995) para 32.
5 Fose para 95.
6 As Ngcobo, J said in Doctors for Life International v Speaker of the National Assembly and
Others (CCT12/05) [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) (17
August 2006) para 24: ‘The provisions of section 172(1)(a) are clear, and they admit of no
ambiguity; “(w)hen deciding a constitutional matter within its power, a court … must
declare that any law or conduct that is inconsistent with the Constitution is invalid”’.
7 Du Plessis, Penfold and Brickhill (2013) 108.
8 Bishop M ‘Remedies’ in Woolman, S, Bishop, M and Brickhill J (eds) (2013) Constitutional
Law of South Africa 2nd ed rev service 5 9.4(d).
9 Bishop (2013) 9.4(e).
10 S 172(1)(b)(i) provides that ‘[w]hen deciding a constitutional matter within its power, a
court (b) may make any order that is just and equitable, including (i) an order limiting the
retrospective effect of the declaration of invalidity’. S 172(1)(b)(ii) provides that ‘[w]hen
deciding a constitutional matter within its power, a court (b) may make any order that is
just and equitable, including (ii) an order suspending the declaration of invalidity for any
period and on any conditions, to allow the competent authority to correct the defect’.
11 (CCT 103/12) [2013] ZACC 25; 2014 (2) SA 228 (CC); 2013 (9) BCLR 989 (CC) (10 July 2013).
12 Para 130.
13 See Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and
Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (7 June
2000) paras 63–4; Fraser v Naude and Another (Fraser II) (CCT14/98) [1998] ZACC 13; 1999
(1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) (23 September 1998) paras 9–10.
14 Fraser (II) paras 9–10.
15 Tsotetsi v Mutual and Federal Insurance Company Ltd (CCT16/95) [1996] ZACC 19; 1997 (1)
SA 585 (CC); 1996 (11) BCLR 1439 (CC) (12 September 1996) para 10.
16 (678/12) [2013] ZASCA 29; [2013] 2 All SA 501 (SCA); 2013 (4) SA 557 (SCA) (27 March
2013).
17 AllPay para 99.
18 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of
the South African Social Security Agency and Others (No 2) [2014] ZACC 12; 2014 (4) SA 179
(CC); 2014 (6) BCLR 641 (CC) (17 April 2014) para 78.
19 See Dawood para 59, where the Court stated: ‘It is clear from this provision that a court is
obliged, once it is has concluded that a provision of a statute is unconstitutional, to declare
that provision to be invalid to the extent of its inconsistency with the Constitution. In
addition, the court may also make any order that it considers just and equitable including
an order suspending the declaration of invalidity for some time.’
20 S 2 read with s 172(1) of the Constitution.
21 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95)
[1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) (6 December 1995) paras 26,
27 and 158; Fose para 94.
22 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) (6 December 1995).
23 Ferreira; Vryenhoek para 27.
24 Ferreira; Vryenhoek para 27.
Ferreira; Vryenhoek para 27.
25 Act 27 of 2002.
26 Stone, L (2018) A sign of the times: South Africa’s politico-legal retrogression as illustrated
through the intention to withdraw from the Rome Statute Southern African Public Law
33(1):1–32.
27 Democratic Alliance v Minister of International Relations and Cooperation and Others
(Council for the Advancement of the South African Constitution Intervening) (83145/2016)
[2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP)
(22 February 2017) para 3.
28 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and
Others (27740/2015) [2015] ZAGPPHC 402; 2016 (1) SACR 161 (GP); 2015 (5) SA 1 (GP);
[2015] 3 All SA 505 (GP); 2015 (9) BCLR 1108 (GP) (24 June 2015) paras 36.1 and 36.2.
29 S 231(2) of the Constitution.
30 Democratic Alliance v Minister of International Relations paras 13–16.
31 Democratic Alliance v Minister of International Relations para 59.
32 See S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC) (11
June 2002) para 88: ‘[L]egislation must be construed consistently with the Constitution and
thus, where possible, interpreted so as to exclude a construction that would be inconsistent
with [the Constitution]. If held to be unconstitutional, the appropriate remedy ought, if
possible, to be in the form of a notional or actual severance, or reading in, so as to bring the
law within acceptable constitutional standards. Only if this is not possible, must a
declaration of complete invalidity of the section or sub-section be made.’
See also Bishop, M ‘Remedies’ in Woolman, S and Bishop, M (eds) (2013) Constitutional
Law of South Africa 2nd ed rev service 5 9.86.
33 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74;
Lawyers for Human Rights and Other v Minister of Home Affairs and Other (CCT 18/03)
[2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) paras 45–7.
34 J and Another v Director General, Department of Home Affairs and Others (CCT46/02)
[2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR 463 (CC) (28 March 2003) para 22.
35 Fose para 69.
36 Dawood paras 63–4; Fraser (II) paras 9–10; Minister of Home Affairs and Another v Fourie
and Another (CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) (1
December 2005) para 170.
37 Fraser (II) paras 9–10.
38 Tsotetsi para 10.
39 See Bishop (2013) 9.87. See generally Phaahla v Minister of Justice and Correctional Services
and Another (Tlhakanye Intervening) (CCT44/18) [2019] ZACC 18; 2019 (2) SACR 88 (CC);
2019 (7) BCLR 795 (CC) (3 May 2019) para 61; Estate Agency Affairs Board v Auction
Alliance (Pty) Ltd and Others (CCT 94/13) [2014] ZACC 3; 2014 (3) SA 106 (CC); 2014 (4)
BCLR 373 (CC) (27 February 2014) para 116; and Abahlali Basemjondolo Movement SA and
Another v Premier of the Province of Kwazulu-Natal and Others (CCT12/09) [2009] ZACC
31; 2010 (2) BCLR 99 (CC) (14 October 2009) para 100.
40 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079
(CC); (25 August 2000) para 23.
41 Bishop, M and Brickhill, J (2010) Constitutional Law Juta’s Annual Survey of South African
Law para 225.
42 Bishop and Brickhill (2010) para 225.
43 Bishop and Brickhill (2010) para 225.
44 See, for example, Bhulwana; Gwadiso para 29; National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17;
2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (2 December 1999) paras 25–6.
45 See Fourie para 33.
46 Hyundai Motor Distributors para 24.
47 See, for example, Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337
(CC); 2008 (11) BCLR 1123 (CC) where the judges on the Constitutional Court differed
about this question.
48 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs paras 25–6.
49 Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7)
BCLR 735 (CC) (11 March 2004) paras 19–25.
50 (628/2010) [2011] ZASCA 184; 2012 (1) SA 1 (SCA); [2011] 4 All SA 460 (SCA); 2012 (6) BCLR
635 (SCA) (30 September 2011).
51 Mkhize para 12. See also Centre for Child Law and Others v Media 24 Limited and Others
(CCT261/18) [2019] ZACC 46 2020 (3) BCLR 245 (CC); 2020 (1) SACR 469 (CC) (4 December
2019) para 126; Moyo and Another v Minister of Police and Others; Sonti and Another v
Minister of Police and Others (CCT174/18; CCT178/18) [2019] ZACC 40; 2020 (1) BCLR 91
(CC); 2020 (1) SACR 373 (CC) (22 October 2019) para 56; and Nandutu and Others v
Minister of Home Affairs and Others (CCT114/18) [2019] ZACC 24; 2019 (5) SA 325 (CC);
2019 (8) BCLR 938 (CC) (28 June 2019) paras 88–90.
52 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74.
53 S v Manamela and Another (Director-General of Justice Intervening) (CCT25/99) [2000]
ZACC 5; 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) (14 April 2000) para 57.
54 In Zuma v National Director of Public Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1
All SA 54 (N); 2009 (1) BCLR 62 (N) (12 September 2008) paras 23–5, Nicholson J wrongly
used reading in as an interpretative strategy without having declared invalid the relevant
 section of the National Prosecuting Authority Act 32 of 1998 into which words were read.
See generally Bishop (2013) 9.104–9.111.
55 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (CCT10/99)
[1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (2 December 1999) para 66.
56 National Coalition for Gay and Lesbian Equality para 67. The Constitutional Court partly
relied on the Canadian Supreme Court judgment in Schachter v Canada (1992) 93 DLR
(4th) 1 para 69 to justify its use of the reading in remedy.
57 National Coalition for Gay and Lesbian Equality para 76.
58 National Coalition for Gay and Lesbian Equality para 74.
59 National Coalition for Gay and Lesbian Equality para 75.
60 (CCT86/15) [2016] ZACC 8; 2016 (3) SA 487 (CC); 2016 (5) BCLR 577 (CC) (18 March 2016).
61 Act 4 of 2004.
62 Democratic Alliance paras 18–37.
63 Democratic Alliance paras 43–4.
64 Democratic Alliance para 45.
65 Democratic Alliance paras 40–2.
66 Democratic Alliance para 52.
67 Democratic Alliance para 60.
68 See Khosa and Others v Minister of Social Development and Others, Mahlaule and Another
v Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505
(CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 88.
69 Act 140 of 1992.
70 Minister of Justice and Constitutional Development and Others v Prince; National Director of
Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others
v Acton and Others (CCT108/17) [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR
1220 (CC) (18 September 2018) (Prince 4). This case follows Prince v President of the Law
Society of the Cape of Good Hope and Others (CCT36/00) [2000] ZACC 28; 2001 (2) SA 388
(CC); 2001 (2) BCLR 133 (CC) (12 December 2000) (Prince 1); Prince v President of the Law
Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3)
BCLR 231 (CC) (25 January 2002) (Prince 2); and Prince v Minister of Justice and
Constitutional Development and Others; Rubin v National Director of Public Prosecutions
and Others; Acton and Others v National Director of Public Prosecutions and Others
(4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31
March 2017) (Prince 3).
71 Prince 4 para 101. Apart from declaring section 4(b) the Drugs and Drug Trafficking Act to
be unconstitutional and invalid, the Constitutional Court also declared section 5(b) to be
unconstitutional and invalid. This section prohibited the cultivation of cannabis in private
by an adult person for his or her own consumption.
72 Prince 4 para 105.
73 See Coetzee v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer Port Elizabeth Prison and Others (CCT19/94, CCT22/94) [1995] ZACC
7; 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC) (22 September 1995) para 16.
74 Coetzee; Matiso para 16. See also Sarrahwitz v Martiz N.O. and Another (CCT93/14) [2015]
ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC) (4 June 2015); and Helen Suzman
Foundation v President of the Republic of South Africa and Others; Glenister v President of
 the Republic of South Africa and Others (CCT 07/14, CCT 09/14) [2014] ZACC 32; 2015 (2)
SA 1 (CC); 2015 (1) BCLR 1 (CC) (27 November 2014).
75 See Bishop (2013) 9.99.
76 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety
and Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996
(5) BCLR 608 (CC) (9 May 1996) para 71.
77 Case, Curtis.
78 Case, Curtis paras 72–3.
79 See Bishop (2013) 9.102. See generally University of Stellenbosch Legal Aid Clinic and
Others v Minister of Justice and Correctional Services and Others; Association of Debt
Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others; Mavava
Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others
(CCT127/15) [2016] ZACC 32; 2016 (6) SA 596 (CC); (CC) 2016 (12) BCLR 1535 (CC) (13
September 2016); and McBride v Minister of Police and Another (CCT255/15) [2016] ZACC
30; 2016 (2) SACR 585 (CC); 2016 (11) BCLR 1398 (CC) (6 September 2016).
80 (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294 (CC); 2002 (5) BCLR 433 (CC) (11 April 2002).
81 Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services in the
Independent Broadcasting Authority Act 153 of 1993.
82 Islamic Unity Convention para 54.
83 Islamic Unity Convention para 55.
84 Islamic Unity Convention para 58. See also Ferreira; Vryenhoek.
85 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (2 December 1999)
para 64.
86 Fose para 94. See also National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12)
BCLR 1517 (CC) (9 October 1998) paras 93–6.
87 See S v Ntsele (CCT25/97) [1997] ZACC 14; 1997 (11) BCLR 1543 (CC) (14 October 1997)
para 14 and Bhulwana, Gwadiso para 32.
88 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401
(SA) (CC) (5 April 1995) para 43.
89 Bhulwana, Gwadiso para 32.
90 Mackey v US 401 US 667 (1971) 691 quoted with approval in Bhulwana, Gwadiso para 32.
91 Executive Council of the Western Cape Legislature and Others v President of the Republic of
South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR
1289 (CC) (22 September 1995) para 105. In this case the President sought to invoke the
interim Constitution’s equivalent of s 172(1)(b)(i) to validate proclamations which had the
effect of amending an Act of Parliament. The Court found this to be ‘logically inconsistent’
since the reason why the amendments were invalid in the first place was that they should
have been passed by Parliament and not the President.
92 The order in Bhulwana, Gwadiso is a representative example.
93 (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442
(CC) (13 August 2018).
94 Corruption Watch NPC para 93.
95 Corruption Watch NPC para 94.
96 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (9 October
1998).
97 National Coalition for Gay and Lesbian Equality v Minister of Justice para 96.
98 National Coalition for Gay and Lesbian Equality v Minister of Justice paras 97–8.
99 Executive Council of the Western Cape Legislature para 106. See also Minister of Agriculture,
Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals
(CCT186/16) [2016] ZACC 26; 2016 (11) BCLR 1419 (CC) (25 August 2016); Minister of
Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to
Animals (CCT 122/15) [2015] ZACC 27; 2015 (11) BCLR 1387 (CC) (28 August 2015); and
South African Social Security Agency and Another v Minister of Social Development and
Others (CCT48/17) [2018] ZACC 26; 2018 (10) BCLR 1291 (CC) (30 August 2018); Herbert
N.O. and Others v Senqu Municipality and Others (CCT 308/18) [2019] ZACC 31; 2019 (6)
SA 231 (CC); 2019 (11) BCLR 1343 (CC) (22 August 2019); and Mulowayi and Others v
Minister of Home Affairs and Another (CCT249/18) [2019] ZACC 1; 2019 (4) BCLR 496 (CC)
(29 January 2019).
100 Fraser v Children’s Court Pretoria North and Others (CCT31/96) [1997] ZACC 1; 1997 (2) SA
218 (CC); 1996 (8) BCLR 1085 (CC) (5 February 1997) (Fraser I) para 50. See also Dawood
para 63; South African National Defence Union v Minister of Defence and Others
(CCT65/06) [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC) (30 May 2007).
101 (CCT46/02) [2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR 463 (CC) (28 March 2003)
para 21.
102 Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)
[2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) (17 August 2006) para 114.
103 Fraser I para 51.
104 Executive Council of the Western Cape Legislature para 108.
105 Executive Council of the Western Cape Legislature para 107.
106 Fourie para 135.
107 Coetzee; Matiso para 18; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1;
1996 (2) SA 464 (CC); 1996 (3) BCLR 293 (CC) (9 February 1996) para 30.
108 Bhulwana, Gwadiso para 30; Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA
197 (CC); 1996 (6) BCLR 752 (CC) (15 May 1996) para 51.
109 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1)
SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 108.
110 See Currie and De Waal (2001) 295.
111 See Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC 7; 1997 (3) SA 772 (CC);
1997 (6) BCLR 677 (CC) (5 June 1997) para 41.
112 Fraser I para 51.
113 Fraser I para 50.
114 Executive Council of the Western Cape Legislature para 113.
115 (CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) (1 December
2005).
116 Act 25 of 1961.
117 Fourie paras 132 and 162.
118 Fourie paras 136–7.
119 Fourie para 165.
120 Fourie para 167.
121 Fourie para 169.
122 Fourie para 170.
123 Fourie para 171.
124 The High Court had previously adopted a similar method of insisting on constructive
dialogue between the parties before handing down its order. In Lingwood and Another v
The Unlawful Occupiers of R/E of Erf 9 Highlands 2008 (3) BCLR 325 (W) para 33, the Court
refused an eviction order until such time as the parties had attempted to achieve a
mutually acceptable solution. This case, along with the cases of Sailing Queen Investments v
The Occupants La Colleen Court (4480 / 07) [2008] ZAGPHC 15; 2008 (6) BCLR 666 (W) (25
January 2008) and Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue
and Another 2009 (1) SA 470 (W), established the trend towards the creation of meaningful
engagement as a remedy.
125 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008).
See also Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005
(1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) para 39 and Residents of Joe
Slovo Community. See also Chenwi, L (2009) A new approach to remedies in socio-
economic rights adjudication: Occupiers of 51 Olivia Road and Others v City of
Johannesburg and Others Constitutional Court Review 2:371–93 at 373.
126 Occupiers of 51 Olivia Road para 16.
127 Occupiers of 51 Olivia Road para 17.
128 Occupiers of 51 Olivia Road para 18.
129 Occupiers of 51 Olivia Road para 14.
130 Occupiers of 51 Olivia Road para 5.
131 Chenwi (2009) 373.
132 Chenwi (2009) 381.
133 (CCT12/05) [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) (17 August
2006) paras 111 and 116.
134 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997
(7) BCLR 851 (CC) (5 June 1997) para 60.
135 Fose para 70.
136 Fose para 65.
137 (CCT20/04) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005).
138 Modderklip para 58.
139 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another (CC) [2011] ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC) (1
December 2011).
140 (580/04) [2006] ZASCA 49; 2006 (4) SA 478 (SCA); [2006] 2 All SA 455 (SCA) (30 March
2006).
141 Kate para 27.
142 Kate para 33.
143 (734/2017) [2019] ZASCA 57; [2019] 3 All SA 69 (SCA); 2020 (1) SA 52 (SCA) (3 April 2019)
144 Ngomane para 25.
145 Ngomane para 27.
146 Currie and De Waal (2005) 223–4.
147 (CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November
2004) para 108.
 See National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02) [2003]
148 ZACC 4; 2003 (4) SA 1 (CC); 2003 (5) BCLR 476 (CC) (3 April 2003) para 58.
149 See JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others
(CCT49/95) [1996] ZACC 23; 1997 (3) SA 514 (CC); 1996 (12) BCLR 1599 (CC) (21 November
1996) para 15.
150 Langa and Others v Hlophe (697/08) [2009] ZASCA 36; [2009] 3 All SA 417 (SCA); 2009 (8)
BCLR 823 (SCA) (31 March 2009).
151 See Langa v Hlophe paras 11 and 12 and Nkabinde and Another v Judicial Service
Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2 All SA 415 (SCA); 2016 (4)
SA 1 (SCA) (10 March 2016) paras 24–5.
152 Langa paras 34.
153 Roach, K ‘Crafting remedies for violations of economic, social and cultural rights’ in
Squires, J, Langford, M and Thiele, B (eds) (2005) The Road to a Remedy: Current Issues in
the Litigation of Economic, Social and Cultural Rights 113.
154 Pheko and Others v Ekhuruleni Metropolitan Municipality and Others 2011 (Pheko III)
(CCT19/11) [2016] ZACC 20; 2016 (10) BCLR 1308 (CC) (26 July 2016) para 1. For purposes
of context, see the predecessor case, Pheko and Others v Ekurhuleni Metropolitan
Municipality (CCT 19/11) [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC) (6
December 2011) (Pheko I).
155 Ebadolahi, M (2008) Using structural interdicts and the South African Human Rights
Commission to achieve judicial enforcement of economic and social rights in South Africa
New York University Law Review 83(5):1565–1606 at 1596.
156 Komape para 17.
157 Komape para 18.
158 Komape and Others v Minister of Basic Education (1416/2015) [2018] ZALMPPHC 18 (23
April 2018).
159 Komape v Minister of Basic Education (754/2018 and 1051/2018) [2019] ZASCA 192 (18
December 2019).
160 See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City
of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475
(CC) (19 February 2008) para 14 and Schubart Park Residents’ Association and Others v City
of Tshwane Metropolitan Municipality and Another (CCT 23/12) [2012] ZACC 26; 2013 (1)
SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012).
161 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (1 April 1999).
162 (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC) (25 May 2005).
163 (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) (6 June 1995).
164 Sibiya I para 59.
165 Sibiya and Others v Director of Public Prosecutions (Sibiya III) (CCT45/04B) [2006] ZACC
22; 2006 (2) BCLR 293 (CC) (30 November 2006) paras 22–3.
166 (CCT 22/08) [2009] ZACC 16; 2010 (3) SA 454 (CC); 2009 (9) BCLR 847 (CC) (10 June 2009)
para 7.
167 Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC
Intervening) (CCT 48/17) [2017] ZACC 8; 2017 (3) SA 335 (CC); 2017 (5) BCLR 543 (CC) (17
March 2017); South African Social Security Agency and Another v Minister of Social
Development and Others (CCT 48/17) [2018] ZACC 26; 2018 (10) BCLR 1291 (CC) (30
August 2018); and Black Sash Trust v Minister of Social Development and Others (Freedom
 Under Law NPC Intervening) (CCT 48/17) [2018] ZACC 36; 2018 (12) BCLR 1472 (CC) (27
September 2018).
168 Mahomed, I (1998) The independence of the judiciary South African Law Journal
115(4):658–67 at 658.
Equality, human dignity, freedom
and privacy rights

13.1 Introduction

13.2 The right to equality and non-discrimination

13.2.1 Introduction: substantive equality versus formal equality
13.2.2 Differentiation and discrimination
13.2.3 Values underlying the right to equality: human dignity and equality
13.2.4 Attacking the constitutionality of a legislative provision: section 9 of the Constitution
13.2.4.1 Introduction
13.2.4.2 Mere differentiation: section 9(1)
13.2.4.3 Redress measures (affirmative action) imposed by legislation: section 9(2)
13.2.4.3.1 Basic approach
13.2.4.3.2 The test for redress (affirmative action) measures in terms
of section 9(2)
a) Do the measures target persons or categories of
persons who have been disadvantaged by unfair
discrimination?
b) Are the measures designed to protect or advance such
persons or categories of persons?
c) Do the measures promote the achievement of equality
in the long term?
13.2.4.3.3 Redress measures and legality
13.2.4.4 Unfair discrimination: section 9(3)
 13.2.4.4.1 Does the differentiation amount to discrimination?
13.2.4.4.2 Is the discrimination unfair?
13.2.5 Non-statutory imposed discrimination: the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
13.2.5.1 Unfair discrimination under PEPUDA
13.2.5.2 Redress under PEPUDA: section 14(1)

13.3 The right to human dignity

13.3.1 Introduction
13.3.2 Human dignity as a right and as a value

13.4 The right to freedom and security of the person

13.4.1 Introduction
13.4.2 The right to freedom
13.4.3 The substantive and procedural aspects of the right to freedom
13.4.4 The right to be free from all forms of violence from either public or private sources
13.4.5 The right not to be treated or punished in a cruel, inhuman or degrading manner
13.4.6 Bodily and psychological integrity
13.4.6.1 Termination of pregnancy

13.5 The right to privacy

13.5.1 Introduction
13.5.2 Scope and content of the right to privacy
13.5.3 Privacy regarding sexual intimacy
13.5.4 Privacy and the possession and use of cannabis (dagga)

Summary

13.1 Introduction
Dignity is a central value underlying the Constitution and we could
even say it is the cornerstone of the Constitution and the rights
protected in it.1 This is made clear by section 1(a) of the Constitution,
which states that the Republic of South Africa is founded on the values
of human dignity, the achievement of equality and the advancement of
human rights and freedoms.2 When considering the scope and content
of the various rights in the Bill of Rights, it is important to understand
that human dignity informs constitutional adjudication and
interpretation and is ‘a value that informs the interpretation of many,
possibly all, other rights’.3 It is a ‘motif which links and unites equality
and privacy’, and which ‘runs right through the protections offered by
the Bill of Rights’.4 The value of dignity permeates the Bill of Rights to
contradict South Africa’s apartheid past ‘in which human dignity for
black South Africans was routinely and cruelly denied’.5
As we shall see, dignity is not only a value that permeates the Bill of
Rights and the Constitution as a whole; it is also a justiciable and
enforceable right. In many cases where the value of human dignity is
offended, the primary constitutional breach occasioned may be of a
more specific right. Arguably, the most important of these rights in the
South African context – given its history of discrimination – is the right
to equality.6 As we shall see, there is a strong link between the value of
dignity and the enforcement of the right to equality and non-
discrimination. The truth is that the value of dignity also undergirds
most, if not all, of the other rights contained in the Bill of Rights.
It is not easy to pin down the content of the value of human dignity.7
The Constitutional Court has recognised that, in the context of Bill of
Rights adjudication, human dignity recognises the inherent worth of all
individuals as members of our society, as well as the value of the
choices that they make. It comprises the ‘deeply personal
understanding we have of ourselves, our worth as individuals and our
worth in our material and social context’.8 The value of dignity asserts
that every human being counts; that every human being has infinite
value, regardless of his or her personal circumstances or actions. Given
that every human being counts, every human being is entitled to be
treated as a human being and to be valued. A more expansive view of
the value of dignity does not only focus on how individuals are treated,
but also focuses on human beings as agents capable of making moral
choices, of shaping their identity, of resisting injustice and of
participating in the shaping of society.9 In the words of Martha
Nussbaum dignity thus understood expresses the notion as follows:
The core idea is that of the human being as a dignified free being who shapes
his or her own life in cooperation and reciprocity with others, rather than being
passively shaped or pushed around by the world in the manner of a ‘flock’ or
‘herd’ animal. A life that is really human is one that is shaped throughout by
these human powers of practical reason and sociability.10
In this view dignity also speaks to the material conditions in which
individuals find themselves. To value the inherent dignity of human
beings as a society is to ensure that people enjoy civil and political
rights and also ‘have effective access to the social and economic means
indispensable to the development of their physical, emotional, creative
and associational capabilities’.11 Adopting a more expansive view of the
value of dignity, may help to reconfigure rights to make them more
responsive to economic and social injustice.
In this chapter we focus on the right to equality, the right to dignity
and the right to privacy, the denial of which can arguably be said to
have resulted in some of the most egregious forms of injustice during
the apartheid era and continue to rob many people of respect and
concern, and the ability to shape their lives in ways that would allow for
human flourishing. Although the denial of these rights has drastic and
personal effects on individuals, it would be a mistake to view them only
in individual terms. Often, the manner in which society is structured,
the cultural assumptions deeply embedded in society and the vast
inequalities between rich and poor have a direct and lasting effect on
the denial of these rights. It is, therefore, impossible not to consider
these rights against the backdrop of the broader social, economic and
political context and to remain mindful of how the broader context
influences our understanding of the operation of these rights.
Accordingly, it would be a mistake to analyse these rights and the
jurisprudence of the Constitutional Court relating to these rights (or any
other rights protected in the Bill of Rights for that matter) in an a-
contextual or overtly formalistic manner. It must always be remembered
that rights are aimed at protecting individual human beings and at
promoting their well-being and ability to make meaningful life choices.
This means that the actual lived reality of individuals and the effects of
impugned actions or omissions by both the state and private parties will
always be centre stage when considering breaches of the rights in the
Bill of Rights.12
The value of ubuntu and the Constitution
Former Constitutional Court justice Yvonne Mokgoro
has argued that the values encapsulated by ubuntu
‘are the very same values that the Constitution in
general and the Bill of Rights in particular aim to
inculcate in our society’.13 This means, she argues
further, that the ‘traditional African values of ubuntu’
could influence the development of South African law
and jurisprudence.14 Noting that the concept ubuntu is
not easily definable, Mokgoro nevertheless proceeds to
describe ubuntu as:
a world-view of African societies and a determining factor in the
formation of perceptions which influence social conduct. It has
also been described as a philosophy of life, which in its most
fundamental sense represents personhood, humanity,
humaneness and morality; a metaphor that describes group
solidarity where such group solidarity is central to the survival of
communities with a scarcity of resources, where the fundamental
belief is that motho ke motho ba batho ba bangwe/umuntu
ngumuntu ngabantu which, literally translated, means a person
can only be a person through others. In other words the
individual’s whole existence is relative to that of the group: this is
manifested in anti-individualistic conduct towards the survival of
the group if the individual is to survive. It is a basically humanistic
orientation towards fellow beings.

Kunene, however, warns against a superficial

perception of the concept:
For indeed, it is not enough to refer to the meaning and profound
concept of ubuntuism merely as a social ideology. Ubuntu is the
very quality that guarantees not only a separation between men,
women and the beast, but the very fluctuating gradations that
determine the relative quality of that essence. It is for that reason
that we prefer to call it the potential of being human.15

Such potential, he states, can fluctuate from the lowest

to the highest level during one’s lifetime, where there is
constant harmony between the physicality and
spirituality of life. That harmony is achieved through
close and sympathetic social relations within the group
– thus the notion umuntu ngumuntu ngabantu/motho
ke motho ka batho ba bangwe, which also implies that
during one’s lifetime, one is constantly challenged by
others, practically, to achieve self-fulfilment through a
set of collective social ideals. Because the African
worldview cannot be neatly categorised and defined,
any definition would only be a simplification of a more
expansive, flexible and philosophically accommodative
idea.16
Mokgoro argues that the meaning of the concept
becomes much clearer when its social value is
highlighted. These values include group solidarity,
conformity, compassion, respect, human dignity,
humanistic orientation and collective unity. Many of
these values are indeed similar to the value of dignity,
which is said to be the most important value
undergirding the Constitution and its Bill of Rights.
However, the notion of group or social solidarity is not
traditionally associated with liberal rights discourse.17
The focus on social or group solidarity found in ubuntu
can be contrasted with the focus on the individual and
individuality which is viewed as the cornerstone of
traditional liberal rights discourse. This means that a
reliance on the value of group solidarity embedded in
ubuntu in developing - even reconceptualising - our
understanding of the rights protected in the Bill of
Rights, could radically change how rights are
conceptualised and enforced and could, arguably,
make rights more responsive to systemic injustice. As
we discuss the Constitutional Court’s approach to
various rights, consider what impact the values
embedded in ubuntu – especially social or group
solidarity – could have on how the rights are
conceptualised and enforced. Also consider why South
 African courts have not taken up this call to use the
values embedded in ubuntu to develop our law –
including our constitutional law – in a more systematic
and robust manner.

13.2 The right to equality and non-discrimination

13.2.1 Introduction: substantive equality versus formal

equality
First colonial dispossession and then apartheid had a devastating effect
on the lives of indigenous South Africans. During this period,
systematic, legally sanctioned, discrimination against black South
Africans in all aspects of economic and social life contributed to this
dispossession and gave it a legal veneer. As the Constitutional Court has
pointed out, focusing only on the apartheid era:
Black people were prevented from becoming owners of property or even
residing in areas classified as ‘white’, which constituted nearly 90% of the land
mass of South Africa; senior jobs and access to established schools and
universities were denied to them; civic amenities, including transport systems,
public parks, libraries and many shops were also closed to black people.
Instead, separate and inferior facilities were provided. The deep scars of this
appalling programme are still visible in our society. It is in the light of that
history and the enduring legacy that it bequeathed that the equality clause
needs to be interpreted.18

But it is not only black people who have suffered and sometimes
continue to suffer from discrimination. Women, gay men and lesbians,
people with disabilities, HIV-positive people, foreigners, religious
minorities and many individuals with distinctive attributes or
characteristics have also suffered marginalisation and exclusion and to
some extent still do. When considering the scope and content of the
right to equality, it is important to have regard to these realities.
No two people in the world are identical in terms of their attributes,
characteristics, intelligence or other talents. Nor do people enjoy
identical benefits and opportunities as they grow up. This is particularly
true in South Africa, a country in which vast discrepancies in wealth,
educational opportunities and access to resources led to an unequal
distribution of opportunities. Race, gender and class differences have
also had an impact and perpetuate the subordination of black people,
women, gay men, lesbians and the poor. A person’s inborn talents,
predisposition and the status accorded to him or her based on
irrelevant considerations such as race, gender or sexual orientation, as
well as other factors such as the quality of education he or she receives,
the access he or she has to financial and other resources, the extent to
which the world is shaped by ideas and assumptions of politically and
economically privileged groups, and the opportunities and support
parents or caregivers are capable of providing, influence the extent to
which a person manages to live a rich and fulfilled life. Through no fault
of their own, different people from different backgrounds have an
unequal chance to reach their goals in life.
To help to address this situation the Bill of Rights contains a specific
right to equality in section 9 of the Bill of Rights. This section reads as
follows:
(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection (3). National legislation
must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair.

Section 9 thus aims to address some of the unfairness inherent in this

state of affairs while also providing a legal framework to prevent unfair
treatment of individuals based on their race, sex, gender, sexual
orientation, disability and other personal characteristics or attributes.
As such, the right to equality is an essential component of a
transformative Constitution. The reason for this is that the right to
equality encapsulates the aspiration of eventually achieving a society in
which all enjoy equal access to the resources and amenities of life, and
are able to develop their full human potential.19
Two important consequences flow from this conception of the right
to equality:
• First, the right to equality cannot entail a guarantee that all people
should be treated identically at all times, regardless of their personal
attributes or characteristics, social or economic status. The right,
therefore, should be viewed as entailing more than a formal
prohibition against discrimination.
• Second, the right to equality must guarantee more than equality
before the law and must focus on the effects or impact of legal rules
or other differentiating treatment on individuals. The right to
equality, therefore, cannot focus merely on whether two people
have been treated in an identical manner by the legal rule or by the
institution or individual concerned. The idea of substantive
equality best captures this approach to equality jurisprudence.

We can contrast substantive equality with the traditional, liberal idea of

formal equality.20 Underlying formal equality is the belief that unequal
treatment of individuals based on their race, sex, gender, sexual
orientation or other similar characteristics is irrational and arbitrary,
that people are all born free and equal, and that the harm of
discrimination is situated in the failure of a government to treat all
people as equally free.21 Formal equality focuses on the formal way in
which the law treats individuals or groups. It explicitly denies the need
to take into account the social and economic context or the differences
in power, status and opportunities between individuals or groups of
individuals when judging whether the equality injunction has been
breached or not. Formal equality demands that all people should be
treated in the same manner, regardless of their personal circumstances,
their history, their social and economic status, and whether they have
been discriminated against in the past or still face discrimination in the
present.22 Formal equality demands neutrality and does not
accommodate different treatment of people who are socially and
economically different from one another.
The concept of formal equality is often criticised because this
neutral approach to equality masks forms of bias. It ignores the fact that
neutral standards often embody the interests and experiences of
socially privileged groups whose views and attitudes are so dominant
that they have become invisible and appear to be neutral. Formal
equality is also said to ignore the actual social and economic
circumstances of people, how this affects people’s opportunities in life
and the different power wielded by different individuals and groups in
society. As such, an insistence on the formal equal treatment of all
people – regardless of their social and economic status – may
exacerbate the inequality of socially and economically marginalised
and vulnerable groups. It does this by ignoring the actual inequality
between dominant or privileged groups and marginalised and
vulnerable groups and the ways in which seemingly neutral rules
continue to advantage the privileged and dominant in society.23
Substantive equality, however, proceeds from the understanding
that there are structural or systemic reasons why not all individuals
enjoy equal opportunities to reach their full life potential. Substantive
equality focuses on the actual economic, social and political conditions
of groups and individuals in society and on the ideas, practices, systems
and attitudes that perpetuate inequality. As the Constitutional Court
pointed out:
Particularly in a country such as South Africa, persons belonging to certain
categories have suffered considerable unfair discrimination in the past. It is
insufficient for the Constitution merely to ensure, through its Bill of Rights, that
statutory provisions which have caused such unfair discrimination in the past
are eliminated. Past unfair discrimination frequently has ongoing negative
consequences, the continuation of which is not halted immediately when the
initial causes thereof are eliminated, and unless remedied, may continue for a
substantial time and even indefinitely. Like justice, equality delayed is equality
denied.24
Substantive equality asks what impact differentiating legal rules or
other differentiating treatment will have on groups or individuals, given
differences in the social and economic status of such groups or
individuals, and given the way in which existing ‘neutral’ legal rules
privilege the economically and culturally dominant and powerful in
society. A legal commitment to substantive equality, therefore, entails
attention to the context. This context includes the social and economic
inequalities in society, and the effects of past and ongoing prejudice
and discrimination on the basis of race, sex, gender, sexual orientation,
disability, economic status and other grounds on the life opportunities
of individuals. The context also includes the manner in which private
relationships, such as marriage and child-rearing duties, continue to be
structured in ways that produce or perpetuate disadvantage and
subordination. The focus is on the impact of the treatment instead of
the treatment itself. Substantive equality is remedial in nature and aims
to overcome the effects of past and ongoing prejudice and
discrimination as well as the broader structural reasons for the
disempowerment and economic disadvantage faced by some
individuals or groups in society.
The South African Constitutional Court has embraced the notion of
substantive equality, stating in Minister of Finance and Others v Van
Heerden that:
This substantive notion of equality recognises that besides uneven race, class
and gender attributes of our society, there are other levels and forms of social
differentiation and systematic under-privilege, which still persist. The
Constitution enjoins us to dismantle them and to prevent the creation of new
patterns of disadvantage. It is therefore incumbent on courts to scrutinise in
each equality claim the situation of the complainants in society; their history
and vulnerability; the history, nature and purpose of the discriminatory
practice and whether it ameliorates or adds to group disadvantage in real life
context, in order to determine its fairness or otherwise in the light of the values
of our Constitution. In the assessment of fairness or otherwise a flexible but
‘situation-sensitive’ approach is indispensable because of shifting patterns of
hurtful discrimination and stereotypical response in our evolving democratic
society. The unfair discrimination enquiry requires several stages.25

It is clear from this approach that the context within which a court must
judge an equality case is of primary importance to determine whether
there is a breach of section 9. This context in which the court must judge
an equality case is formed, first, by the constitutional text in its entirety.
Second, the court must take into account the country’s recent history,
particularly the systematic discrimination suffered by black people
under apartheid26 as well as systematic patterns of discrimination on
grounds other than race that have caused, and may continue to cause,
considerable harm.27 Any consideration of whether a legally relevant
differentiation actually constitutes a breach of section 9, therefore, must
take into account the history of the impugned provision as well as the
history of the group or groups to which the complainant belongs. Taking
this context into account, the court determines whether the legally
relevant differentiation aims to create or perpetuate patterns of group
disadvantage, or whether it aims to break down these structural
inequalities and thus reach for true or substantive equality. If the latter
is the case, the court will be reluctant to declare the measures
unconstitutional.28
Because the court’s approach requires a contextual analysis, it may
take into account the ongoing structural inequality in society when
deciding on the unfairness of the discrimination.29 The court’s
contextual or remedial approach acknowledges that inequality results
from complex power relations in society. It views the law as having an
important role to play in reordering these power relations in ways which
strive to ensure that all individuals are treated as if they have the same
moral worth. Disadvantage here, then, is not equated with different
treatment of individuals who are born free and equal. Disadvantage is
rather equated with some harmful impact, whether direct or indirect,
that the differentiation between groups might have on a set of
complainants within the historical context of South Africa.30
As mentioned above, the focus is on the impact of the treatment
instead of the treatment itself. Substantive equality is remedial in nature
and aims to overcome the effects of past and ongoing prejudice and
discrimination. It requires a retreat from legal formalism and a focus on
the underlying purpose of the right to equality – what harm it seeks to
address – as well as the values underlying equality. The harm to be
addressed rests on at least three pillars:
 the culturally constructed ideology of differences based on the belief
• in the superiority of dominant groups and the inferiority of non-
dominant groups
• the economic exploitation and disempowerment of those without
power because of their race, sex, gender, sexual orientation or other
attributes
• in the South African context, the previous political
disenfranchisement of black South Africans.31

Distinguishing between formal equality and

substantive equality
To distinguish between formal equality and substantive
equality, it may be helpful to focus on a specific
example. Where a guesthouse catering to gay and
lesbian tourists refuses to accommodate any
heterosexual clients, that guesthouse would be treating
people differently based on their sexual orientation. A
heterosexual couple who are denied accommodation
at the guesthouse may feel that they have been
discriminated against on the basis of their sexual
orientation as they have been denied accommodation
purely because they are heterosexual. A court that
adheres to a formal notion of equality may have to find
in favour of the heterosexual couple on the basis that
the guesthouse treats gay men and lesbians differently
from heterosexuals to the detriment of the latter group.
Formally, the guesthouse rule denies the heterosexual
couple a benefit that is not denied to gay men and
lesbians.
A court that embraces a substantive notion of
equality may look at the larger social and economic
context. The court may acknowledge that gay men and
lesbians continue to suffer from prejudice,
stigmatisation and discrimination. They may, therefore,
feel vulnerable and exposed in situations where they
are required to book into a guesthouse along with
heterosexual clients. In an ordinary guesthouse, gay
and lesbian couples may fear being subjected to the
prejudices (presumed or real) of non-homosexual
clients. This may inhibit them from showing affection
for one another and may detract from their enjoyment
of their stay.
The guesthouse in our example aims to provide a
safe space for gay men and lesbians where couples
can openly express physical affection for one another
and interact in loving and intimate ways with each
other as heterosexual couples do every day in public.
They can do so in a manner in which they may not be
able to when they fear the judgment of heterosexuals
staying at the establishment.
A court embracing substantive equality may find
that this different treatment is not in breach of the
equality guarantee. Heterosexual couples will have no
problem in finding alternative accommodation because
there is no widespread discrimination against them in
society. The guesthouse rule will not send a signal that
heterosexuals are somehow less worthy of concern and
respect than gay men and lesbians. The court will take
into account the broader context. This context includes
the fact that heterosexuals are not generally believed
to be marginalised or suffering from patterns of
discrimination, disadvantage or harm. In addition,
different treatment will not establish new patterns of
discrimination, disadvantage and harm by a powerful
group over a disempowered and vulnerable group. The
court may therefore well dismiss a complaint of
discrimination brought by a heterosexual couple.32 For
exactly the same reasons, the court will find a
guesthouse that prohibits black people from staying at
 its establishment guilty of discrimination as such an
exclusion will perpetuate long-standing patterns of
discrimination and prejudice.

In the following sections we first set out the basic assumptions

underlying the substantive approach to equality as well as the values
implied by the right to equality. We then focus on two distinct situations
in which the right to equality arises:
• first, those cases where individuals are treated differently but where
this different treatment does not explicitly address the effects of past
and ongoing prejudice and discrimination
• second, those cases where the different treatment is explicitly
justified on the grounds that it addresses the effects of past and
ongoing prejudice and discrimination (so-called affirmative action
measures or better referred to as redress measures).

We also discuss the Promotion of Equality and Prevention of Unfair

Discrimination Act (PEPUDA).33 The PEPUDA gives legislative effect to
section 9 of the Constitution and is often relied on instead of section 9
itself.

13.2.2 Differentiation and discrimination

The idea of differentiation lies at the heart of South Africa’s equality
jurisprudence.34 Not all forms of differentiation are constitutionally
problematic: relatively benign forms of differentiation between people
or groups of people permeate human relations in a modern society and
the Constitution does not usually prohibit the law from making such
distinctions. A modern state is required to regulate the affairs of its
inhabitants extensively. It is impossible to do so without differentiation
and without classifications that treat people differently and which affect
people differently.35
Moreover, private individuals or institutions differentiate daily
between individuals in many ways. These numerous forms of
differentiation are seldom problematic from a constitutional law
perspective and the vast majority of cases in which people or groups of
people are treated differently from one another are legally benign.
Although most forms of differentiation are not constitutionally
problematic, this is not always true and in some cases a decision to
differentiate between individuals may infringe the right to equality
guaranteed in section 9(1) of the Constitution. This usually occurs when
the differentiation is egregious and may be classified as a form of
discrimination.
Given that only certain forms of differentiation are constitutionally
problematic, it is not surprising that the Constitutional Court has drawn
a sharp distinction between mere differentiation dealt with in terms of
section 9(1) of the Constitution, and discrimination dealt with in terms
of section 9(3) of the Constitution.36
The consequence of this distinction between mere differentiation
and discrimination is that questions around discrimination dominate
the Constitutional Court’s approach to equality.37 It is clear that for a
claimant to succeed with an equality challenge, it will usually (but not
in every case) be necessary to frame a claim about a breach of section 9
of the Constitution as one of discrimination rather than in terms of a
general claim to equality or a claim of differentiation. The
Constitutional Court has chosen to focus its equality jurisprudence on
the notion of discrimination rather than on the more ‘complex’, ‘elusive’
and ‘empty’38 notion of equality or on all cases of differentiation. This
choice stems from a need to provide a suitably ‘structured’ and
‘focused’ legal framework that will furnish an effective and easy-to-
apply legal test to determine whether the equality guarantee has been
breached.39
The Constitutional Court views the concept of non-discrimination
as providing a legal mechanism that will deal effectively with egregious
forms of inequality and different treatment while avoiding a flood of
litigation. By focusing on targeted forms of discrimination instead of on
the more general equality guarantee dealing with all forms of
differentiation, the Court aims to discourage well-resourced litigants in
the private sector from challenging every conceivable form of legal
differentiation. The Court, therefore, focuses on the importance of non-
discrimination and sees it as a safe and more or less predictable way of
dealing with the difficult issues of equality with which it has been, and
no doubt will continue to be, confronted.40

13.2.3 Values underlying the right to equality: human dignity

and equality
The judges of the Constitutional Court have unanimously embraced the
idea that at its core, the equality guarantee protects an individual’s
human dignity. The centrality of the value of human dignity for equality
jurisprudence was first established in President of the Republic of South
Africa and Another v Hugo where the Court placed human dignity at the
heart of its equality enquiry.41 The Court stated:
The prohibition on unfair discrimination in the interim Constitution seeks not
only to avoid discrimination against people who are members of
disadvantaged groups. It seeks more than that. At the heart of the prohibition of
unfair discrimination lies a recognition that the purpose of our new constitutional
and democratic order is the establishment of a society in which all human beings
will be accorded equal dignity and respect regardless of their membership of
particular groups. (our emphasis)42

The Court accepts that the equality guarantee protects individuals from
differentiation based on one of the specified grounds in section 9(3) or
similar forms of differentiation that have the potential to infringe on a
person’s fundamental human dignity. Conversely, where differentiation
is not based on one of the specified grounds and where it does not have
the potential to infringe on a person’s fundamental human dignity,
there will be no unfair discrimination in terms of section 9(3) of the
Constitution.
The Constitutional Court has adopted quite a broad and expansive
definition of human dignity. It has stated that human dignity will be
impaired whenever a legally relevant differentiation treats people as
‘second-class citizens’, ‘demeans them’, treats them as less capable for
no good reason’, otherwise offends ‘fundamental human dignity’ or
where it violates an individual’s self-esteem and personal integrity.43
This idea of dignity is based on the notion that all human beings have
an equal moral worth – the right to be treated with equal concern and
respect – and derives from the work of Immanuel Kant.44 But the
Constitutional Court has gone beyond this understanding of human
dignity and embraced a more expansive understanding of what it
entails. It has thus held that the value of dignity is also implicated if
individuals do not have the material resources – including access to
food, clothing or shelter – to make meaningful life choices.45 As long as
there are ‘great disparities in wealth’, millions of people continue to live
‘in deplorable conditions and in great poverty’, there is a ‘high level of
unemployment, inadequate social security, and many do not have
access to clean water or to adequate health services’, the value of dignity
will not be honoured.46
This view of equality as inextricably linked to the concept of dignity
has been reiterated in subsequent Constitutional Court judgments47
and has further been elaborated on, most notably in Prinsloo v Van der
Linde and Another.48 In this case, the Court adopted an even more
expansive interpretation of when treatment will be discriminatory. It
held in this respect that treatment will be discriminatory, not only when
it infringes human dignity, but also when it ‘affect persons adversely in
a comparably serious manner’.49 Where legal provisions deny the equal
moral worth of a complainant, the Court will find that there has been an
impairment of human dignity or that the complainant has been
adversely affected in a comparably serious manner. This is a
confirmation of Malherbe’s proposition that ‘equality without dignity is
inhuman’.50

Does South African dignity-based equality

jurisprudence narrow the understanding of
the right to equality?
Some academics have criticised the South African
dignity-based equality jurisprudence on the basis that
it can narrow the understanding of the right to equality
to an abstract and individualised notion about the
personal feelings of a litigant who feels hurt by
prejudice and misrecognition.51 The fear is that the
reliance on the value of dignity will focus equality
jurisprudence on the individual harm caused by
prejudice as well as on the narrow need to address
such harms. This narrow focus on the individual and
the harm suffered by him or her, so the argument goes,
runs the risk of ignoring the larger social and economic
disadvantages as well as the systemic nature of
inequality in South African society.
For example, some people argue that a dignity-
based approach to equality can powerfully address
issues of discrimination against gay men, lesbians and
other sexual minorities. The reason for this is that such
discrimination is rooted in moral disapproval and
results directly in an affront to their dignity and
identity.52 By contrast, the fear is that discrimination
against women or black people can often not be
captured fully in terms of a dignity-based analysis.
Such discrimination results from a complex mix of
superficially neutral laws, entrenched structural
inequality and cultural stereotypes.53 South Africa has
a sexist, racist and homophobic past. Prejudices
based on race, gender and sexual orientation continue
to linger in our society. Discrimination faced by many
women, black people and to a lesser extent gay men
and lesbians, thus also has an economic component.
This component cannot easily be captured with
reference to an infringement of a person’s dignity.
However, the Constitutional Court’s contextual
approach to equality has allowed it to move beyond a
narrow, individualised notion of equality focused on
individual personal autonomy, psychology and self-
worth. This contextual approach has permitted a
systematic understanding of individual, group-based,
 civil, political and material inequalities. Dignity is thus
linked to the achievement of a world in which the basic
needs of all people will be met.54 In Khosa and Others
v Minister of Social Development and Others, Mahlaule
and Another v Minister of Social Development,55 for
example, the Constitutional Constitutional Court
recognised that the dignity of individuals will not be
respected if the material conditions do not exist to
allow for such a respect for dignity. It also suggested
that dignity is a group-based concept involving a
collective concern for the well-being of others and that
the allocation of resources is important for considering
equality concerns:
Sharing responsibility for the problems and consequences of
poverty equally as a community represents the extent to which
wealthier members of the community view the minimal well-being
of the poor as connected with their personal well-being and the
well-being of the community as a whole. In other words, decisions
about the allocation of public benefits represent the extent to
which poor people are treated as equal members of society.56

Apart from the value of dignity, the Constitutional Court has also
affirmed that the value of equality is relevant for any understanding of
section 9 of the Constitution especially when dealing with the
restitutionary aspects of equality. In Van Heerden, the Constitutional
Court affirmed the Constitution’s commitment to strive for a society
based on social justice. Equality thus requires more than equal
protection before the law and non-discrimination. In addition, it also
requires ‘a credible and abiding process of reparation for past
exclusion, dispossession, and indignity within the discipline of our
constitutional framework’.57 The Court, per Moseneke DCJ, explained
this point as follows:
What is clear is that our Constitution and in particular section 9 thereof, read as
a whole, embraces for good reason a substantive conception of equality
inclusive of measures to redress existing inequality. Absent a positive
 commitment progressively to eradicate socially constructed barriers to
equality and to root out systematic or institutionalised under-privilege, the
constitutional promise of equality before the law and its equal protection and
benefit must, in the context of our country, ring hollow.58

13.2.4 Attacking the constitutionality of a legislative

provision: section 9 of the Constitution

13.2.4.1 Introduction
Different legal tests apply to different situations in which an equality
complaint is lodged. First, where a distinction between different people
stems from a legislative provision and the litigant asks a court to declare
that legislative provision invalid, the court has to rely directly on
sections 9(1), 9(2) or 9(3) of the Constitution. These three sections apply
in different situations and, as we shall see, require the court to apply a
different legal test in each case. It is important to identify whether a set
of facts dealing with a complaint about different treatment between
people or groups of people fits under section 9(1), 9(2) or 9(3). The
court then applies the relevant test applicable to that set of facts. When
attacking the constitutionality of a legislative provision, it is therefore
important, at the outset, to determine whether the attack will be based
on section 9(1), 9(2) or (9(3). A direct reliance on section 9 is required in
such cases because legislation can only be invalidated by invoking the
Constitution itself. This is because the Constitution is supreme and
therefore superior to the legislative provision under attack.
Where a litigant attacks the actions of a public official or private
entity on equality grounds but this attack does not relate to the possible
invalidation of a legislative provision, the litigant will have to rely on the
relevant provisions of the PEPUDA. This is so whether the challenge is
against a redress policy or whether it is against alleged unfair
discrimination.59 This is because the principle of subsidiarity provides
that a litigant who claims that one of his or her constitutional rights has
been infringed must rely on legislation adopted to protect that right
rather than the constitutional right itself. The litigant, therefore, may not
rely on the underlying constitutional provision directly. Unless the
litigant wants to attack the constitutionality of the legislative provision
itself, he or she cannot rely on section 9 as the PEPUDA gives effect to
section 9 and will be the first port of call.60 The Constitutional Court has
advanced three reasons why the principle of subsidiarity is important
and must be adhered to.
First, allowing a litigant to rely directly on a fundamental right contained in the
Constitution, rather than on legislation enacted in terms of the Constitution to
give effect to that right, ‘would defeat the purpose of the Constitution in
requiring the right to be given effect by means of national legislation’. Second,
comity between the arms of government enjoins courts to respect the efforts of
other arms of government in fulfilling constitutional rights. Third, ‘allowing
reliance directly on constitutional rights, in defiance of their statutory
embodiment, would encourage the development of “two parallel systems of
law”’.61

Given that the PEPUDA gives effect to section 9 of the Constitution, it

must be interpreted in the light of the Constitutional Court’s
jurisprudence on section 9. We, therefore, first discuss the
Constitutional Court’s jurisprudence regarding section 9 before turning
to the PEPUDA as the general principles discussed when dealing with
section 9 apply in the interpretation of the PEPUDA.
As noted above, section 9 deals with three distinct situations. First,
section 9(1) applies in cases where the legislative provision
differentiates between people or groups of people, but this
differentiation is not based, either directly or indirectly, on one of the
grounds listed in section 9(3) or on an analogous ground that is similar
to the grounds explicitly listed in section 9(3). We refer to such cases as
cases of mere differentiation.62
In Prinsloo, the Constitutional Court explained that it would be
impossible to govern a modern country like South Africa efficiently and
to harmonise the interests of all its people for the common good
without differentiation and classifications which treat peopledifferently
and affectthem differently. Such differentiations which are necessary to
regulate the affairs of a country, or mere differentiations, will, according
to the Court, rarely constitute discrimination in and of themselves.63
Mere differentiation, therefore, refers to the many distinctions that the
law makes that have nothing to do with the kind of discrimination
based on race, sex, gender or other grounds listed in or similar to those
listed in section 9(3) of the Constitution. For example, where the
legislative provision makes a distinction between lawyers and doctors, a
litigant attacking that provision will have to rely on section 9(1) as
section 9(3) does not explicitly prohibit discrimination against a group
of people who are identified as doctors or lawyers.
Second, section 9(2) applies to cases where the legislative provision
explicitly aims to give effect to restitutionary measures. These measures
are also popularly known as affirmative action measures. If a legislative
provision aims to implement a restitutionary measure, the court first
tests the constitutionality of that provision under section 9(2). If the
restitutionary measure complies with section 9(2), that is the end of the
enquiry. The provision is constitutionally valid and cannot be tested
against section 9(3).64 As we shall see, this is important as the onus of
proving or disproving an infringement of section 9 may differ
depending on whether a litigant relies on section 9(2) or section 9(3).
However, if the legislative provision does not comply with section 9(2),
the court can still test it against section 9(3). In other words, the court
uses section 9(2) to test legislative provisions that implement
affirmative action measures. However, when it finds that such measures
do not comply with section 9(2), the court can test their
constitutionality against section 9(3). Section 9(2) deals with redress
policies imposed by legislation. As noted above, because of the
principle of subsidiarity, redress policies not imposed by legislation
must be dealt with under section 14(1) of PEPUDA. As the text of
section 14(1) is similar to the text of section 9(2), the test developed by
the courts when applying section 9(2) must also be used when testing
non-legislative redress measures against section 14(1) of PEPUDA.
The third instance is whenever the different treatment is based
either directly or indirectly on one or more of the grounds listed in
section 9(3) or on a ground that the court has found to be sufficiently
similar to the grounds listed in section 9(3) to be considered under that
section. Also, the different treatment should not form part of an
affirmative action programme or policy. Here, the court must test the
provision against section 9(3). In the case of listed grounds or grounds
sufficiently similar to the grounds listed in section 9(3), it is not
necessary to invoke section 9(1) first. The litigant complaining of
discrimination as opposed to complaining about mere differentiation
may directly invoke section 9(3).65 As noted, this situation is
distinguished from mere differentiation as it relates to different
treatment on the basis of race, sex, gender, sexual orientation or one of
the other problematic distinctions and is referred to as discrimination.
In the sections that follow, we deal with the test to be applied to the
three situations:
• differentiation that amounts to mere differentiation (section 9(1))
• different treatment mandated to advance an affirmative action
policy (section 9(2))
• differentiation that amounts to discrimination but is not part of an
affirmative action policy (section 9(3)).

Although the Constitutional Court has stated that it would be neither

desirable nor feasible to separate sections 9(1) and 9(3) into watertight
compartments, it has nevertheless focused on section 9(1) as dealing
with mere differentiation while section 9(3) was earmarked as dealing
with unfair discrimination.66
Table 13.1 Framework for challenging different treatment
Legal nature of differentiation Example Legal
provision
relied on

Legislative provision constituting mere A legal provision that requires cigarette Section
differentiation products but not alcohol products to 9(1) of the
carry warning labels Constitution

Legislative provision introducing an affirmative Employment Equity Act (EEA)67 provisions Section
action programme requiring certain employers to institute 9(2) of the
affirmative action policies Constitution

Legislative provision that distinguishes directly or A legislative provision that grants women Section
indirectly between groups based on grounds but not men the right to a certain number 9(3) of the
listed in section 9(3) or analogous grounds of days of pregnancy leave Constitution

An act by a private or public body or person that A holiday resort which allows only Section 14
distinguishes directly or indirectly between groups Christians to visit or an affirmative action of the
of people based on grounds set out in section policy of a small company, and a private PEPUDA
9(3) or analogous grounds and redress measures institution that makes scholarships
imposed by non-legislative means. available only to women to effect redress.

13.2.4.2 Mere differentiation: section 9(1)

Given the Constitutional Court’s focus on discrimination when dealing
with equality claims, it is not surprising that cases of mere
differentiation infringing on section 9(1) are not easy to prove. Recall
that cases of mere differentiation are dealt with in terms of section 9(1)
which states: ‘Everyone is equal before the law and has the right to
equal protection and benefit of the law.’ According to the Constitutional
Court, this section means ‘that all persons in a similar position must be
afforded the same right[s]’.68 This includes: first, that everybody is
entitled, at the very least, to equal treatment by our courts of law; and,
second, that no one should be above or beneath the law and that all are
subject to law impartially applied and administered.69
Examples of mere differentiation include distinctions between
different types of prisoners or distinctions between different classes of
taxpayers. Impugned provisions involving mere differentiation will fall
foul of both aspects of section 9(1)70 if a litigant can show that the state
did not act in a rational manner when differentiating between
individuals or groups of individuals. This means that the state ‘should
not regulate in an arbitrary manner or manifest “naked preferences”
that serve no legitimate governmental purpose’.71 What is required is
that the state functions ‘in a rational manner’72 and that it does not
distinguish between people or groups of people in a way that is
irrational.
As the Constitutional Court stated in Sarrahwitz v Martiz NO and
Another:
State action must always be designed to advance a legitimate governmental
purpose in consonance with the rule of law and the very essence of
constitutionalism. This attribute of equality compels the State to regulate its
affairs in a rational and justifiable manner. It speaks to the core business of the
State which is equal treatment of its citizens and the pursuit of what redounds
to the common good of all.73
When applying this test, one must first identify the purpose of the
legislation and then ask whether there is a rational link between the
impugned legislation and the purpose sought to be achieved by it. For
example, where legislation criminalises the sale of cannabis, but not the
sale of alcohol or tobacco, the legislature differentiates between two
types of substances considered harmful. To determine whether this
differentiation is permissible in terms of section 9(1) one will have to
identify the purpose for which cannabis is treated differently from
alcohol and tobacco. If there is no legitimate purpose for the
differentiation or if there is a legitimate purpose but there is no rational
link between the differentiation and the legitimate purpose being
pursued, the legislation may be declared unconstitutional because it is
in conflict with section 9(1) of the Constitution.
This requirement of rationality has emerged as an extremely
stringent test which is very difficult for any plaintiff alleging mere
differentiation to overcome.74 The stringent nature of this requirement is
exacerbated by the Constitutional Court’s decision to absolve the state
or other relevant actors from having to prove that there are no
alternative or better ways of achieving the objective in question.75 As
long as the state or other relevant actor can prove that any rational
relationship, in other words, the absence of arbitrariness,76 exists
between the purpose sought to be achieved by the impugned provision
and the means chosen by the provision, the court will find that the
differentiation does not infringe section 9(1) of the Constitution.77
Rationality is part of accountability and justification in a democratic
state. It is important in a rationality enquiry ‘to identify and examine the
specific government object sought to be achieved by the impugned rule
of law or provision’ and a court will not rely on a generic general
purpose identified.78 However, all the state has to show is that the
purpose was neither arbitrary nor irrational. It does not have to show
that the purpose pursued was a wise one or one with which the court
agrees.79
Where there is no discernible purpose for the differentiation, the
court will find the legislative provision to be in breach of section 9(1).
For example, in Ngewu and Another v Post Office Retirement Fund and
Others,80 the Constitutional Court declared certain sections of the Post
Office Act81 unconstitutional as they breached section 9(1) of the
Constitution. This was because the impugned provisions treated
divorced spouses of employees of the Post Office differently from other
divorced spouses whose treatment is regulated by other legislation. The
Court found that this differentiation was irrational as it had no basis.
The different treatment was an anomaly that could not be explained in a
rational manner.82 As the different treatment was not based on a ground
like race or sex or gender, but on whether a person worked for the Post
Office or another employer, the Court relied on section 9(1) to
invalidate the provisions of the Post Office Act. However, because the
rationality test is applied relatively strictly, the Court does not often
invalidate legislation because it breaches section 9(1) of the
Constitution.

13.2.4.3 Redress measures (affirmative action) imposed by

legislation: section 9(2)

13.2.4.3.1 Basic approach

The question of the exact scope of constitutionally permissible redress
measures (affirmative action) is one of the most hotly debated and, for
some, most controversial, constitutional law issues. Disagreement on
this issue can be traced back to different views about the extent to
which the harmful consequences of racism and racial discrimination
which were imposed by the apartheid government continue to render
present-day South Africa a fundamentally unfair place for many (if not
all) black South Africans. If we accept that the harmful effects of past
racial discrimination stubbornly persist in society and that racism
continues to disadvantage black South Africans, the need for redress
measures to overcome this will be apparent. For those who deny these
facts, however, redress measures – especially redress measures based
on race – represent a form of reverse discrimination. As we shall see,
however, the Constitutional Court – relying on section 9(2) of the
Constitution – has clearly rejected the latter view in favour of the former.
Section 9(2) states:
 Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged by
unfair discrimination may be taken.

This section recognises that the achievement of equality requires the

state and other powerful institutions in society to take positive steps to
address the deep social and economic inequalities in society. In
addition, the state and other powerful institutions must also address the
structures and systems in society that help to perpetuate this inequality.
These structures and systems prevent individuals from enjoying equal
opportunities and benefits that will allow them to flourish because
opportunities and benefits are available to some people but not to
others in society.83
This recognition lies at the heart of the notion of substantive
equality. As indicated above, the substantive notion of equality
recognises that there are uneven race, class and gender levels and forms
of social and systemic differentiation. This type of differentiation
continues to persist in South African society and requires positive
action to dismantle it and to prevent the creation of new patterns of
disadvantage.84 As the Constitutional Court stated in Van Heerden, the
precedent-setting case on section 9(2), corrective or restitutionary
measures are mandated by section 9(2) as part of a ‘credible and
abiding process of reparation for past exclusion, dispossession, and
indignity within the discipline of our constitutional framework’.85
Restitutionary measures are therefore ‘a vital component of our
transformative constitutional order’.86
The United States anti-discrimination approach regards
restitutionary measures as an exception to the general equality and
non-discrimination guarantee. By contrast, the South African equality
jurisprudence does not view such measures as a deviation from or
invasion of the right to equality guaranteed by the Constitution. These
measures are not reverse discrimination or positive discrimination.87
Instead, corrective or restitutionary measures are an integral part of our
equality guarantee. They aim to eradicate a system that perpetuates
inequality and to address social and economic inequality to achieve
equality in the long term. South Africa is a country in transition from a
society based on inequality to one based on equality.88 Thus, the
constitutional order is committed to the transformation of our society
from a grossly unequal society to one in which there is equality between
men and women and people of all races. In this fundamental way, our
Constitution differs from other constitutions which assume that all are
equal and in so doing simply entrench existing inequalities. This
constitutionally mandated transformation is part of an ongoing process.
It is not an end in itself but a means to an end: the achievement of
equality in the long term.89
Of course, there are profound difficulties that will have to be
confronted in giving effect to the constitutional commitment of
achieving equality. This is because the measures that bring about
transformation will inevitably adversely affect some members of our
society, particularly those people coming from previously advantaged
communities. However, as we shall see, the interests of those people
negatively affected by such remedial measures must be balanced
against the interests of those people who suffered discrimination in the
past and may very well continue to suffer from discrimination today.
This is why section 9(2) mandates positive measures. This means
section 9(2) ‘imposes a positive duty on all organs of state to protect and
promote the achievement of equality – a duty which binds the judiciary
too’.90 In the absence of ‘a positive commitment progressively to
eradicate socially constructed barriers to equality and to root out
systematic or institutionalised under-privilege, the constitutional
promise of equality before the law and its equal protection and benefit
must, in the context of our country, ring hollow’.91
A constitutional challenge to legislated restitutionary measures –
even based on any of the grounds of discrimination listed in section
9(3) – must be tested against section 9(2). Once a court has determined
that the measures comply with the requirements of section 9(2), they
cannot be presumed to be unfairly discriminatory and cannot be tested
against section 9(3).92 This means that if it is shown that measures
comply with section 9(2), this is a complete defence against any charge
that the measures unfairly discriminate against anyone.
 The onus in those cases in which the constitutionality of a section
9(2) restitutionary measure has to be determined differs from the onus
in those cases in which the constitutionality of a section 9(3) non-
restitutionary discriminatory measure has to be determined. In the
latter case, once a court has established that there was indeed
discrimination on one of the grounds listed in section 9(3), the onus of
showing that the discrimination is not unfair rests with the party
defending the different treatment. However, in cases where the
constitutionality of restitutionary measures is attacked, the onus rests
with the party who alleges that the measures are unconstitutional.
Legislative and other measures, which properly fall within the provision
of section 9(2), do not attract a presumption of unfairness.93

Stumbling blocks to implementing a

successful redress policy in the workplace
Several pieces of legislation impose obligations on
organs of state and private organisations to implement
restitutionary measures in order to help transform
those organisations and to reduce especially race-
based economic inequality. For example, the
Employment Equity Act94 imposes obligations on
designated employers to implement affirmative action
for people from designated groups – black South
Africans, women, and people with disabilities – in
order to achieve employment equity.95 The aim of the
Act is to help transform workplaces by ensuring that
specific groups who have experienced legal
discrimination in the past and may still be informally
discriminated against, get a fair chance of employment
and promotion. The Broad-Based Black Economic
Empowerment Act96 is aimed at increasing effective
participation of black people in the economy and
promoting a more equitable income distribution.
However, this legislation has not had as decisive an
impact as expected. For example, the 2018/19
Employment Equity Report monitoring the
implementation of the Employment Equity Act found
that although white men constituted just 5,1% of the
economically active population, and white women
3,9%, they constituted 66,5% of top managers, 54,4%
of senior managers and 37,4% of professionals. In
comparison, Africans constituted 78,8% of the
economically active population, but only 15,1% of top
managers.97
These figures arguable demonstrate that legislative
interventions alone may not be sufficient to effect
meaningful, broad-based, transformation of economic
relations in South Africa. In the context of the
workplace, the institutional culture of that workplace
may be decisive in determining whether redress
measures will have a dramatic effect. A recent study98
among black middle managers at a large South African
media company, investigating how they experience
affirmative action at that company, found that
participants in the study encountered strong resistance
from other employees, and felt that this was related to
the fact that they were black appointees coming into a
dominantly white organisation. One interviewee
described it as follows: ‘I actually think one of the
problems why affirmative action has not achieved what
it is intended to achieve and as rapidly as possible as
it should, is precisely because of white fears and the
truth of the matter is affirmative action programmes
have done very little to allay those fears’. The authors
suggest that this might be because affirmative action
violates white employees’ sense of security and
threatens, not only their positions, jobs and incomes,
 but also their self-esteem and feelings of worth.99 The
authors then note:
One sign of resistance, according to interviewees, is the formation
of so called ‘power blocks’. According to one of the participants,
this is when ‘white managers, especially middle management
form a powerful block and really define culture and climate of
organisation, i.e. critical mass force and practice’. The importance
of the organisation’s culture is underpinned by [the] argument
that organisational culture change should precede organisational
re-engineering initiatives in order to reduce fear and resistance
and promote ownership of and active participation in the
affirmative action process. The power block also has the ability to
make conditions unbearable for black appointees, causing many
of them to leave the company soon after they have joined. Two
specific problems mentioned by participants are that of slowing
the transformation process and lacking the commitment to
implement changes.100

Are there legal mechanisms available to address these

stumbling blocks and if so, what would they be? Or,
does the limited impact of employment redress
policies say anything about the limited ability of the
law - including constitutionally mandated redress
policies - to effect social and economic change? If it
does, what measures beyond the adoption of redress
legislation will have a real Impact?

13.2.4.3.2 The test for redress (affirmative action) measures in terms

of section 9(2)
To determine whether a set of corrective measures imposed by
legislation complies with section 9(2) and is therefore constitutionally
valid, a court will focus on three distinct questions:101
• First, do the measures target persons or categories of persons who
have been disadvantaged by unfair discrimination?
• Second, are the measures designed to protect or advance such
persons or categories of persons?
• Third, do the measures promote the achievement of equality in the
long term?

Measures imposed through the exercise of public power, however, can

also be reviewed and set aside on legality grounds which apply to all
exercises of public power (not only to redress measures). These grounds
include whether the measures are arbitrary or capricious and whether
the measures meet the rationality standard.102

a) Do the measures target persons or categories of persons who

have been disadvantaged by unfair discrimination?
The first question focuses on the group that is being targeted for
advancement because it was previously subjected to unfair
discrimination and continues to suffer from the effects of that
discrimination. With section 9(3), the focus is on the effect of non-
restitutionary discriminatory measures on those people complaining of
discrimination. In contrast, with section 9(2) the focus is on whether the
right group was targeted for advancement or whether undeserving
groups or individuals will benefit from the restitutionary measures. A
court asks whether the programme of redress is designed to protect and
advance a disadvantaged class. This means that the measures of redress
chosen must favour a group or category designated in section 9(2). The
beneficiaries, either individuals or categories of persons who belong to
an identifiable class defined by their race, sex, gender, disability or
sexual orientation, must be shown to have been disadvantaged by
unfair discrimination. Because the test focuses on whether the group
has been disadvantaged in the past by unfair discrimination, such
groups include black (rather than white) citizens; women (rather than
men); gay men and lesbians (rather than heterosexuals); people living
with disabilities (rather than able-bodied people); and people living
with HIV (rather than HIV-negative people).
The Constitutional Court has acknowledged the fact that it would be
difficult, impractical or undesirable always to devise a legislative
scheme or programme that ‘purely’ or precisely targets the affected
classes. ‘Within each class, favoured or otherwise, there may indeed be
exceptional or “hard cases” or windfall beneficiaries’.103 The Court thus
acknowledges that not all the members of a class targeted to benefit
from restitutionary measures may themselves have suffered from unfair
discrimination or may have been disadvantaged because of the effects
of past discrimination. However, we contend that as long as patterns of
racism, sexism, homophobia or other prejudices exist in society, even
those members of a class who may be economically privileged would
normally still suffer from the effects of past unfair discrimination.
Nevertheless, not every single person who benefits from a restitutionary
programme needs to have been disadvantaged by unfair
discrimination. What is required is that an ‘overwhelming majority of
members of the favoured class are persons designated as disadvantaged
by unfair exclusion’.104

Is the programme of redress designed to

protect and advance a disadvantaged class?
The case of Van Heerden revolved around a remedial
programme that targeted individuals who became
Members of Parliament (MPs) in 1994 by providing
such members with more advantageous pension
benefits for a period of five years. The programme
excluded individuals who were Members of the
apartheid Parliament and continued to serve in
Parliament after 1994. The majority judgment found
that this remedial programme did indeed meet this first
requirement.
The minority judgment of Mokgoro J in Van
Heerden disagreed with the approach taken by the
majority about the precision with which a targeted
class had to be defined. Mokgoro J pointed out that in
this case many beneficiaries who became MPs in
1994 were not black but rather white. There were 251
members elected to the national legislature for the first
time in 1994. Of these, 53 were white. This means that
only 79% of the beneficiaries of the remedial
programme were black. For Mokgoro J this meant that
the restitutionary measures were not tailored
sufficiently narrowly to pass the first leg of the section
9(2) test.
At the heart of this disagreement were different
approaches to the level of scrutiny that the
Constitutional Court should impose on such
measures.105 Mokgoro J justified her view in the
following terms:
[S]ection 9(2) must be used only in appropriate cases and with
great circumspection. The vision of substantive equality and the
need for transformation cannot be underestimated. For that
reason section 9(2), as an instrument for transformation and the
creation of a truly equal society, is powerful and unapologetic. It
would therefore be improper and unfortunate for section 9(2) to
be used in circumstances for which it was not intended. If used in
circumstances where a measure does not in fact advance those
previously targeted for disadvantage, the effect will be to render
constitutionally compliant a measure which has the potential to
discriminate unfairly. This cannot be what section 9(2)
envisages.106

A possible reason for the majority’s application of this

requirement in a relatively permissive manner may be
its recognition that for measures to fit snugly into the
first requirement set out above, the measures may well
explicitly have to target a group that has been unfairly
discriminated against. As Sachs J pointed out, in the
present case this was not done. Instead of race, the
measures distinguished between those individuals who
became members of Parliament for the first time in
1994 and those individuals who became members of
Parliament for the first time prior to 1994, avoiding any
mention of race. As Sachs J stated, ‘For the new
scheme to have distinguished on grounds of race or
previous political affiliation between individual persons
in this large and diverse new generation of members of
Parliament, would have been divisive and invidious.’107
By using other criteria as a proxy for race (or sex or
sexual orientation), those who craft a remedial scheme
may choose not to rely on the very categories used in
the past to exclude and oppress people. This is an
attempt to signal that we should not accept these
categories uncritically and that it is not advisable in the
long term to entrench such categories in law.
However, commentators have pointed out that race
remains relevant in South Africa. As De Vos wrote:
But race hovers not far from the surface in private or other
everyday settings: as an unspoken presence, a (wrongly)
perceived absence or as a painful, confusing, liberating or
oppressive reality in social, economic or other – more intimate –
interactions between individuals or between groups of individuals.
In South Africa we cannot escape the fact that – despite the best
efforts of many – race insinuates itself into our responses to
situations and people. Even when we claim that we have escaped
the perceived shackles of race, we are merely confirming its
presence by our stated yearning for its absence. And escaping
poverty and joining the middle class does not – as some have
argued – free ‘black’ South Africans from the effects of racial
identity and race-based thinking. When I sit at a restaurant with
my companion and the waiter presents me, and not him, with the
wine list or the bill, should I not assume that this is done because
I am ‘white’ and he is ‘black’? (I hasten to add that this has
happened to me on many occasions, regardless of the race of the
waiter or, it must be said, regardless of whether my companion is
an actuary earning at least double my academic salary, or a
relatively impecunious graduate student.) When I see a young
man walking a dog through the streets of the posh,
overwhelmingly ‘white’, and affluent suburb of Bantry Bay in Cape
Town (as often happens in the morning when I drive to work), will
the story I make up about that man not differ depending on
whether he is ‘white’ or ‘black’ – even if, after a second or two, I
will be startled by the deeply problematic racial assumptions to
which I might have fallen prey, and will try to correct myself?108
b) Are the measures designed to protect or advance such persons or
categories of persons?
The second requirement for a valid restitutionary programme is that the
measure must be designed to protect or advance those disadvantaged
by unfair discrimination. In essence, the remedial measures are
directed at an envisaged future outcome and must be designed to
achieve that outcome. The outcome referred to is the achievement of
equality.109 However, a court will not require the defenders of the
scheme to show that the measures are necessary to achieve this goal.
Nor will the court require the defenders to show that the measures will
definitely achieve the intended goals.
Instead, what is required is that the measures ‘must be reasonably
capable of attaining the desired outcome’ of addressing the effects of
past unfair discrimination.110 If it is clear that these measures are not
reasonably likely to achieve the end of advancing or benefitting the
interests of those who have been disadvantaged by unfair
discrimination, they would not constitute measures contemplated by
section 9(2).
It is also not required to show that the remedial measures are a
necessity to disfavour one class in order to uplift another. ‘They are not
predicated on a necessity or purpose to prejudice or penalise others,
and so require supporters of the measure to establish that there is no
less onerous way in which the remedial objective may be achieved. The
prejudice that may arise is incidental to but certainly not the target of
remedial legislative choice.’111 It is important to note that the onus here
rests on the party trying to convince the court that the remedial
measures are unconstitutional and do not comply with section 9(2). The
person or institution attacking the remedial measures will have to show
that the measures are not reasonably capable of achieving the stated
redress goals. It is possible to do this if it can be shown that the
measures are arbitrary or ‘display a naked preference’.112

c) Do the measures promote the achievement of equality in the long

term?
The third requirement for a valid remedial programme is probably the
most difficult and complex to grapple with but it is pivotal for
determining the constitutionality of the scheme. Whether a remedial
scheme meets the requirements of section 9(2) may well hinge on
whether this last requirement is met. We contend that this third
requirement requires a value judgment. A court would have to make
this value judgment in the light of all the circumstances. These
circumstances include the history of marginalisation and oppression of
people based on race, sex, sexual orientation and other grounds, the
current social and economic status of various groups previously unfairly
discriminated against, as well as the prevalence of racism, sexism,
homophobia and other forms of misrecognition still prevalent in
society.
This third requirement asks whether the remedial measures promote
the achievement of equality in the long term. What is required is a
balancing of different interests: the interests of those people suffering
from the effects of past or ongoing unfair discrimination on the one
hand, and the interests of those people who benefitted from past unfair
discrimination or continue to benefit from the lingering effects of that
discrimination on the other hand. In his concurring judgment in the
Van Heerden case, Sachs J explained how to balance these interests as
follows:
Courts must be reluctant to interfere with [remedial] measures, and exercise
due restraint when tempted to interpose themselves as arbiters as to whether
the measure could have been proceeded with in a better or less onerous way. At
the same time, if the measure at issue is manifestly overbalanced in ignoring or
trampling on the interests of members of the advantaged section of the
community, and gratuitously and flagrantly imposes disproportionate burdens
on them, the courts have a duty to interfere. Given our historical circumstances
and the massive inequalities that plague our society, the balance when
determining whether a measure that promotes equality is fair will be heavily
weighted in favour of opening up opportunities for the disadvantaged. That is
what promoting equality (section 9(2)) and fairness (section 9(3)) require. Yet
some degree of proportionality, based on the particular context and
circumstances of each case, can never be ruled out.113

In other words, a court will be slow to strike down remedial

measures targeting black South Africans, women, people with
disabilities, gay men and lesbians or other groups who have suffered
from unfair discrimination in the past. However, the court will not
automatically find that such measures comply with section 9(2). The
court will have to look at the effect that a measure has on the
advantaged section of the community (white citizens, men, able-bodied
individuals, heterosexuals or other groups who benefitted from past
unfair discrimination). The court has to consider the effect of the
measure on those excluded by the measure in the context of our
broader society. The court may find that measures that completely
exclude or are aimed purely at punishing those people who belong to a
group that benefitted in the past disproportionately burden the
previous beneficiaries of discrimination. However, this does not mean
that measures must not have the effect of disadvantaging those who
benefitted from the past system of discrimination. As Justice Moseneke
explained in Van Heerden:
It must be accepted that the achievement of this goal may often come at a price
for those who were previously advantaged. Action needs to be taken to advance
the position of those who have suffered unfair discrimination in the past …
However, it is also clear that the long-term goal of our society is a non-racial,
non-sexist society in which each person will be recognised and treated as a
human being of equal worth and dignity. Central to this vision is the
recognition that ours is a diverse society, comprised of people of different
races, different language groups, different religions and both sexes. This
diversity, and our equality as citizens within it, is something our Constitution
celebrates and protects. In assessing therefore whether a measure will in the
long term promote equality, we must bear in mind this constitutional vision. In
particular, a measure should not constitute an abuse of power or impose such
substantial and undue harm on those excluded from its benefits that our long-
term constitutional goal would be threatened. 114

A court, therefore, must look at the effect the remedial measures will
have on the group or groups who may be negatively affected or who
may not be targeted by the measures. In this regard, there appear to be
similarities between this third requirement and the test for unfair
discrimination in terms of section 9(3) discussed below.115 For example,
a programme aimed at addressing the effects of past racial
discrimination may negatively affect white South Africans. Employment
equity legislation or rules designed to accommodate more black
students or women at a university may affect some white applicants for
jobs or university places who may not be appointed or may be denied a
place to study at the university because of the remedial programme.
This in itself will not invalidate the programme. However, where the
measures taken are so extreme that they send a signal that the equal
dignity of white applicants is not respected, the programme may be
invalidated. Thus, where an admissions policy takes race into account
and the effect of that policy is to exclude the vast majority or all of the
white applicants, the programme would probably not pass
constitutional muster.116 In effect, this is a value judgment importing an
internal fairness requirement into the test for a valid remedial
programme.117
The Constitutional Court held that there is an overlap between the
second and the third requirements laid down in Van Heerden as both
are concerned with the desired outcome of redress measures, the
desired outcome being the achievement of equality.118 According to the
Court, what is common to both the second and third requirements is
the reasonable likelihood that the restitutionary measure concerned
would achieve the purpose of equality.119 Despite this overlap, it may be
possible to interpret the two requirements in such a way that they fulfil
different functions. The second requirement focuses on the positive
obligation to work towards the achievement of equality. It speaks to the
obligation that positive steps must be taken by the state and other role
players to effect transformation, and inquires whether the steps that
have been taken are reasonably capable of achieving the goal of
reducing inequality between the economically and socially privileged,
on the one hand, and the economically and socially marginalised on
the other hand. The third requirement focuses on the negative
obligation which requires that measures aimed at achieving equality
should not place an undue burden on those not benefitting from
redress measures. If the two provisions are read in this way, it would
suggest that the third requirement entails some kind of proportionality
test as discussed in the pause for reflection box below. But as the
Constitutional Court has not explicitly addressed this issue, it is not
presently possible to say with certainty that the two requirements
should be distinguished in the manner proposed here.

Fairness and proportionality considerations

when applying section 9(2)
The question whether the test for remedial measures
as set out by Moseneke J in the Van Heerden case
acquires ‘bite’ from the third requirement has elicited
some debate in academic circles. Pretorius argues that
it is unclear whether this requirement goes ‘beyond
mere rationality testing’, saying that this depends on
our interpretation of the Moseneke judgment and
especially the third requirement postulated by him.120
According to Pretorius, the third requirement as
explained by Moseneke J:
can be understood narrowly or broadly. If the ‘promotion of
equality’ in this context is understood narrowly, i.e. as
synonymous with remedial or restitutive equality, it will in effect
not add anything additional to the previous two rationality
requirements and cumulatively the s 9(2) conditions for the
constitutional validity of affirmative action will stay within the
confines of a rationality inquiry … The equation is also
unequivocally implicit in the observation that ‘it would be inimical
to the pursuit of substantive equality if the State was required to
show that each restitutionary measure that it enacted was fair, as
would be required by s 9(3)’. Affirmative action measures ought
therefore to be judged solely in terms of whether they serve the
goal of ‘advancing those previously disadvantaged’. If on the
other hand the phrase ‘to promote the achievement of equality’ in
s 9(2) is understood more broadly and inclusively, i.e.
recognising and balancing the equality aspirations of all, then
considerations regarding the fairness and proportionality of the
impact of affirmative action measures will inevitably surface. This
can be illustrated with reference to the majority opinion itself. …
Moseneke J in his actual application of the third s 9(2) criterion –
and contrary to his initial starting point – leaned towards the
broader interpretation. The realisation of the remedial objective is
balanced with reference to the ideal of the promotion of an
inclusive ‘non-racial, non-sexist society in which each person will
be recognised and treated as a human being of equal worth and
 dignity’. Mindful of this ‘constitutional vision’, remedial measures
should therefore ‘not constitute an abuse of power or impose
such substantial and undue harm on those excluded from its
benefits that our long-term constitutional goal would be
threatened’. That fairness and proportionality considerations are
invariably brought to the fore once this direction is taken, is
clearly evidenced by Justice Moseneke’s application of the third
requirement to the facts of the case. In his consideration of the
question whether the evidence revealed an abuse of power or the
existence of such a degree of substantial and undue harm that
could be construed as a threat to the realisation of the long-term
goal of equality, he referred to factors normally at issue when the
fairness of discriminatory measures is examined. He considered
the question ‘whether the adverse impact of the employer
contribution scheme on [the sub-class that the complainant
belonged to] is such as to render it unfairly discriminatory’. He
also specifically noted the relevance of the fact that the
complainant did not claim that the aggrieved class of
parliamentarians is in any sense vulnerable or marginalised or
that in the past these parliamentarians were unfairly excluded or
discriminated against, or that the impugned pension scheme
could be considered as invasive of their dignity.121

We contend that this third requirement does require a

balancing of interests and therefore does import the
fairness requirement in a different guise into the
section 9(2) analysis. This does not mean that a court
will easily invalidate an affirmative action policy, but
where the policy overburdens the excluded group, it will
have the constitutional duty to do so.

13.2.4.3.3 Redress measures and legality

In Minister of Finance v Van Heerden the Constitutional Court, while
articulating the second requirement to be met for a redress policy to
comply with section 9(2) of the Constitution, added that if ‘the remedial
measures are arbitrary, capricious or display naked preference, they can
hardly be said to be designed to achieve the constitutionally authorised
end.’122 However, in Minister of Constitutional Development and Another
v South African Restructuring and Insolvency Practitioners Association
and Others the Constitutional Court clarified this statement by holding
that the original statement in Van Heerden should not:
be read as incorporating into the second requirement the demand that a
restitutionary measure should not be arbitrary or capricious. These are
separate requirements of the Constitution which are not restricted to
restitutionary measures contemplated in section 9(2) but apply to the exercise
of public power generally. Just as the exercise of such power must meet the
rationality standard.123

This means that when considering whether redress measures are

constitutionally compliant, a court will ask two separate but related
questions. First, it will ask whether the measures comply with section
9(2) in terms of the three requirements set out in the Van Heerden
judgment. Second, when the measures are imposed through the
exercise of public power, it will further inquire into whether the
measures comply with the principle of legality, specifically whether
they are either arbitrary124 or irrational.125 In the Insolvency Practitioners
Association judgment the Constitutional Court had to consider whether
a redress policy prescribing the process for the appointment of trustees
by the Master of the High Court was constitutionally compliant. The
Court did not consider the principle of subsidiarity and decided the
case by testing the policy against section 9(2), as well as by considering
whether the policy was arbitrary or irrational in terms of the legality
principle. The policy held that insolvency practitioners had to be
appointed consecutively in the ratio of four from category A, then three
from category B, then two from category C, then one from category D.
The categories were defined as follows: ‘A’ represents African, Coloured,
Indian and Chinese females who became South African citizens before
27 April 1994; ‘B’ represents African, Coloured, Indian and Chinese
males who became South African citizens before 27 April 1994; ‘C’
representsWhite females who became South African citizens before 27
April 1994; and ‘D’ represents African, Coloured, Indian and Chinese
females and males, and White females, who have become South African
citizens on or after 27 April 1994 and White males who are South
African citizens. The majority of the Court found that apart from not
meeting the section 9(2) criteria the policy was also arbitrary and
irrational. The court noted that the Constitution proscribes arbitrary
action and requires that every action taken in the exercise of public
power must be underpinned by plausible reasons. In the absence of
reasons justifying the policy, the unequal operation of the policy is
arbitrary and leads to impermissible differentiation. Not only must
reasons be given, but those reasons must further show that power was
exercised to achieve a legitimate government purpose, for which that
specific power was conferred. It is those reasons which may insulate the
exercise of power against a challenge on the ground of arbitrariness.126
The policy therefore fell short in this regard because:
Although the policy we are concerned with here was adopted in pursuit of a
laudable purpose of transforming the insolvency industry, which everyone
agrees needs to be transformed, the implementation of the policy contains
arbitrary terms. The policy differentiates between people who were
disadvantaged by discriminatory laws and practices of the past era. Those who
became citizens before 27 April 1994 enjoy the benefits flowing from the policy.
It will be recalled that during the apartheid era millions of black people were
stripped of their South African citizenship and were declared to be citizens of
the so-called independent homelands. For no apparent reason, and the
applicants have provided none, the policy restricts its application to
disadvantaged people, who became citizens before 27 April 1994. This was the
date on which South Africa became a democracy. Disadvantaged people who
became citizens on 27 April 1994 are denied the benefits of the policy. And the
policy also does not apply to those who became citizens after that date. Instead,
the policy places all these people in the same category as white males and
affords them the same benefits.127

The Court also held that the policy was irrational. While arbitrariness is
established by the absence of reasons or reasons which do not justify
the action taken, rationality seeks to determine the link between the
purpose and the means chosen to achieve such purpose. It is a standard
lower than arbitrariness. All that is required for rationality to be satisfied
is the connection between the means and the purpose.128 But according
to the majority of the court, the policy did not meet this low bar. The
Court noted that it had already found that the policy was not reasonably
capable of achieving the goal of equality and, therefore, did not meet
the second requirement of the section 9(2) test. ‘[T]he failure to prove
that the policy is reasonably likely to achieve equality’, the Court then
held, ‘must mean that there is no proof of a rational link between the
policy and the purpose sought to be achieved’.129 The Court thus
suggests that the second requirement of the section 9(2) test is similar
to the rationality test. It is unclear, however, whether there will be cases
where a policy meets the second requirement of the section 9(2) test,
but does not meet the rationality standard. What is clear is that this
standard would normally not be difficult to meet.

13.2.4.4 Unfair discrimination: section 9(3)

In some cases there may well be a rational relationship between the
differentiation in question and the governmental purpose which is
proffered to validate it and the requirements of section 9(1) are met. In
other cases a measure may purport to give effect to an affirmative action
or remedial programme but does not meet the requirements of section
9(2). In both of these cases, a court has to ask whether the
differentiation may still constitute unfair discrimination as envisaged by
section 9(3).130
In Harksen v Lane NO and Others, the Constitutional Court stated
that a determination of whether differentiation amounts to unfair
discrimination in terms of section 9(3) requires a two-stage analysis:
• First, the court has to determine whether the differentiation in fact
amounts to discrimination.
• Second, if it does, the court has to determine whether the
discrimination amounts to unfair discrimination.131

The Court thus distinguished between discrimination and unfair

discrimination, arguing that not all forms of discrimination are unfair.
Where discrimination can be proven not to be unfair, the legislative
provision thus does not fall foul of section 9(3).132
In the first of the two stages of analysis, a court must determine
whether the differentiation in fact constitutes discrimination. In
Harksen, Goldstone J further subdivided the enquiry following the
arguments first set out in Prinsloo. He stated that section 9(3)
contemplates two categories of discrimination and that courts should
deal with each one in a different way.133 The first category is
differentiation based on one or more of the sixteen grounds specified in
section 9(3), in other words, grounds such as race, sex, gender and
sexual orientation. The second category is differentiation on a ground
not specified in section 9(3) but analogous to such grounds.134 The
Court in Harksen summarised the steps as follows:
(b)(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a
specified ground, then discrimination will have been established. If it is not on
a specified ground, then whether or not there is discrimination will depend
upon whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental human
dignity of persons as human beings or to affect them adversely in a comparably
serious manner.

(b)(ii) If the differentiation amounts to ‘discrimination’, does it amount to

‘unfair discrimination’? If it has been found to have been on a specified
ground, then unfairness will be presumed. If on an unspecified ground,
unfairness will have to be established by the complainant. The test of
unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation.135

13.2.4.4.1 Does the differentiation amount to discrimination?

The text of section 9(3) prohibits unfair discrimination. This means that
discrimination can be either fair and hence constitutionally
permissible, or unfair and hence constitutionally impermissible.
Although the term ‘discrimination’ carries a pejorative meaning in
ordinary language, section 9(3) – in line with the substantive notion of
equality – does not prohibit all forms of discrimination but only
impermissible or unfair forms of discrimination.136
The starting point of this enquiry is the text of section 9(3) which sets
out no less than 16 prohibited grounds of discrimination, namely race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth. When a legislative provision differentiates against
anyone or any group on any of these grounds, a court will find that the
differentiation amounts to discrimination. The court must determine
objectively whether differentiation has occurred on a specified or an
unspecified ground.137 This means that the intention of the alleged
discriminator is not relevant to the enquiry as to whether
discrimination occurred. (However, intention may be relevant to
determine whether the discrimination was fair or unfair.138) The court
has to decide whether the differentiation is based on one of the
specified grounds listed in section 9(3), for example whether the
legislative provision distinguishes between individuals who are black or
white; male or female; gay or straight; able-bodied or disabled. Once
the court has established that the distinction is indeed based on one of
these 16 listed grounds, it will assume that the differentiation is
discriminatory. However, the party seeking to uphold the validity of the
legislative provision can still show that the discrimination is not unfair.
This is so because section 9(5) explicitly states that ‘[d]iscrimination on
one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair’.139 This means that a finding
that there was discrimination will never end the enquiry as one of the
parties then has to try to convince the court that the discrimination is
fair or unfair as the case may be.
It is important to note that section 9(3) does not only prohibit unfair
discrimination on the grounds specifically listed in that section. Section
9(3) also prohibits unfair discrimination against anyone on one or more
grounds, ‘including’ those listed in section 9(3). The word ‘including’
suggests that the list set out in section 9(3) is not a closed list and that
distinctions made between people or groups of people on the basis of
other grounds not listed may also amount to discrimination. Such
grounds are called analogous grounds.140 This allows the court to
discover new forms of discrimination not explicitly recognised by the
drafters of the Constitution.
A court is required to make an objective assessment about two
important questions to determine whether discrimination has occurred
on an analogous ground:
• First, the court must determine whether the differentiation relates to
the unequal treatment of people based on other ‘attributes and
characteristics attaching to them’ which are not related to the
specified grounds but are nevertheless comparable to them.141
• Second, the court has to determine whether this differentiation has
the effect of treating persons differently in a way which ‘impairs
their fundamental dignity as human beings, who are inherently
 equal in dignity’ or affects a person adversely in ‘a comparably
serious manner’.142

Regarding the first aspect of this enquiry, in Harksen the Constitutional

Court cautioned against a narrow definition of these attributes and
characteristics. The Court stated that when a court is called on to make
such a determination, it must look at whether the differentiation is
based on attributes and characteristics comparable in some way or
another with those specified grounds:
What the specified grounds have in common is that they have been used (or
misused) in the past (both in South Africa and elsewhere) to categorise,
marginalise and often oppress persons who have had, or who have been
associated with, these attributes or characteristics. These grounds have the
potential, when manipulated, to demean persons in their inherent humanity
and dignity.143

The second aspect of this enquiry is the impairment of human dignity

or a comparably serious disadvantage. It seems as if the Constitutional
Court has in mind an open-ended process in which it may discover,
over time, more differentiations which are not based on specified
grounds but which, in its opinion, are based on grounds similar to those
specified. From the decided cases, however, it does seem as though it
will relatively easy for complainants who belong to a marginalised or
vulnerable group to prove that a differentiation was based on a
characteristic which has the potential to impair their fundamental
human dignity or to affect them adversely in a comparably serious
manner. They simply have to show that the ground on which they were
treated differently from others has the same characteristics as the
grounds listed in section 9(3). In Hoffmann v South African Airways,144
for example, the Constitutional Court found that a person’s positive
HIV-status is an analogous ground. If an HIV-positive person is treated
differently on the basis of his or her HIV status, therefore, that different
treatment will be classified as discriminatory. The Court justified its
reasoning as follows:
People who are living with HIV constitute a minority. Society has responded to
their plight with intense prejudice. They have been subjected to systemic
disadvantage and discrimination. They have been stigmatised and
marginalised. As the present case demonstrates, they have been denied
employment because of their HIV positive status without regard to their ability
to perform the duties of the position from which they have been excluded.
Society’s response to them has forced many of them not to reveal their HIV
status for fear of prejudice. This in turn has deprived them of the help they
would otherwise have received. People who are living with HIV/AIDS are one
of the most vulnerable groups in our society. Notwithstanding the availability
of compelling medical evidence as to how this disease is transmitted, the
prejudices and stereotypes against HIV positive people still persist. In view of
the prevailing prejudice against HIV positive people, any discrimination
against them can, to my mind, be interpreted as a fresh instance of
stigmatisation and I consider this to be an assault on their dignity. The impact
of discrimination on HIV positive people is devastating. It is even more so when
it occurs in the context of employment. It denies them the right to earn a living.
For this reason, they enjoy special protection in our law.145

What other grounds of often invisible

prejudice exist in society?
At present the Constitutional Court has recognised that
apart from HIV status, differentiation on the basis of
South African citizenship146 and conception infertility147
also constitute analogous grounds of discrimination.
Apart from these two analogous grounds, there may be
others. For example, studies have found that people
often discriminate in favour of tall and attractive
people. A study conducted by Daniel Nettle found that
taller men were significantly less likely to be childless
than shorter men. This suggests that taller men are
more successful at attracting long-term partners
(although it is silent whether this holds true for men
attracted to men). Nettle also concluded that this ‘did
not appear to be a result of greater socioeconomic
success’.148
Various studies have also found that taller men and
women are more likely to have career success, despite
the fact that height is seldom an inherent requirement
for a job. One US study found that each extra inch
 (25,4 millimetre) in height amounted to about $789
more a year in pay.149
Other studies have found that physical
attractiveness is linked to career and social success.
Dr Gordon Patzer calls this ‘the physical attractiveness
phenomena’, which he argues is based on a widely
held stereotype that ‘what is beautiful is good’.
Surveying the research, he concludes that higher
physical attractiveness is ‘advantageous to an
individual, whereas lower physical attractiveness is
correspondingly disadvantageous’.150 This means that
attractive people are generally regarded to be more
talented, kind, honest and intelligent than their less
attractive counterparts, and enjoy a corresponding
advantage because of the good will produced by their
attractiveness. The fact that views on beauty are
themselves culturally constructed, and often based on
racial stereotypes, adds a further layer of complexity to
the issue.151
Does this mean that how a person looks should be
classified as an analogous ground on which
discrimination could be alleged? What other grounds
of often invisible prejudice exist in society and are
taken for granted by all? Should we develop the South
African jurisprudence to take cognisance of the various
ways in which people are treated badly not through any
fault of their own, but because they have attributes and
characteristics that many people implicitly or explicitly
use to judge them more harshly?

The prohibition on discrimination applies to both direct and indirect

discrimination. This must not be confused with listed and analogous
grounds of discrimination discussed above. Direct discrimination
occurs where a provision specifically differentiates on the basis of either
a listed or an analogous ground. For example, a legislative provision
that differentiates between men and women or between HIV-positive
and HIV-negative people discriminates directly. Thus, the previous
common law definition of marriage as being between a man and a
woman explicitly excluded same-sex couples from the definition and
hence directly discriminated against gay men and lesbians on the basis
of sexual orientation.152
Indirect discrimination occurs where certain requirements,
conditions or practices, while appearing neutral, actually have an effect
or result that is unequal or that disproportionately affects a group
defined in terms of a listed or analogous ground. For example, in the
South African context with its deeply entrenched racialised residential
patterns, a measure that treats people in one geographical area
differently from people living in another geographical area may
constitute indirect racial discrimination. This was the case in City
Council of Pretoria v Walker153 where the Constitutional Court pointed
out that it was necessary to include indirect discrimination in the ambit
of section 9(3) to ensure that we focus on the consequences rather than
the form of conduct. This is necessary because conduct which may
appear to be neutral and non-discriminatory may nonetheless result in
discrimination.154

The problem of hidden forms of discrimination

In S v Jordan and Others (Sex Workers Education and
Advocacy Task Force and Others as Amici Curiae),155 a
majority of the Constitutional Court rejected an
argument that a legislative provision that criminalised
the conduct of sex workers but not the clients of sex
workers discriminated indirectly against women. The
relevant section made a distinction between the
prostitute and the client. It was argued that although
the section targeted all sex workers and was therefore
gender neutral, it nevertheless discriminated on the
basis of gender because it had a more severe impact
on women as the vast majority of sex workers are
women and the vast majority of clients are men. The
majority held that the sex worker is engaged in the
business of commercial sex and that one of the ways
of curbing commercial sex is to strike at the ‘merchant’
by means of criminal sanctions. The differentiation
between the dealer and the client was a common
distinction that is made in a number of statutes and,
therefore, could not be said to constitute indirect
discrimination.156 The minority judgment disagreed with
this view. In their minority judgment, O’Regan and
Sachs JJ explained their position as follows:
Prostitutes and their customers engage in sexual activity, which is
one of the constitutive elements of the relationship between men
and women in all societies. As partners in sexual intercourse, they
both consent to and participate in the action which lies at the
heart of the criminal prohibition. There are only three differences
between them. The first is that the one pays and the other is paid.
The second is that in general the one is female and the other is
male. The third is that the one’s actions are rendered criminal by
[the impugned provision] but the other’s actions are not.
Moreover, the effect of making the prostitute the primary offender
directly reinforces a pattern of sexual stereotyping which is itself
in conflict with the principle of gender equality. The differential
impact between prostitute and client is therefore directly linked to
a pattern of gender disadvantage which our Constitution is
committed to eradicating. In all these circumstances, we are
satisfied that, as in Walker’s case, this is a case where an
apparently neutral differentiating criterion producing a markedly
differential impact on a listed ground results in indirect
discrimination on that ground.157

The importance of prohibiting indirect discrimination is

that discrimination is often hidden or disguised by
those who wish to discriminate: they utilise seemingly
neutral criteria to deny members of a certain group
access to goods and benefits in the hope that this
discrimination will not be detected. If indirect
discrimination is not prohibited, it would make it very
difficult to address the problem of these hidden forms
 of discrimination. Whenever a club or bar refuses a
patron entry to that club or bar (as still happens)
based on his or her dress, for example, and that
patron happens to be black, the excluded patron
would be able to show that indirect discrimination had
occurred if other patrons who were dressed in a similar
manner were admitted to the bar or club and they
happened to be white.158

13.2.4.4.2 Is the discrimination unfair?

Given that the aim of section 9 of the Constitution is the pursuit of
substantive equality, not all forms of discrimination will be found to be
unconstitutional. Once it is shown that the differentiation constitutes
direct or indirect discrimination – either on a ground listed in section
9(3) or on an analogous ground and whether direct or indirect – the
enquiry moves to the question of whether the discrimination is fair or
unfair. As we have seen, when discrimination occurs on a listed ground,
it is presumed, in accordance with section 9(5), that the discrimination
is unfair and hence unconstitutional.
However, it is possible to rebut this presumption and establish that
the discrimination is not unfair.159 In other words, the complainant must
establish that the differentiation is based on one or more of the
specified grounds in order for the (rebuttable) presumption of unfair
discrimination to be of effect. Once this has been established, it then
becomes the duty of the other party to rebut the presumption of
unfairness and, instead, to show that the discrimination is in fact fair. If
the discrimination is on a ground not listed in section 9(3), the onus to
prove that the discrimination is unfair remains with the party attacking
the constitutionality of the legislative provision. Either way, one of the
parties has to engage with the requirements for fair versus unfair
discrimination. The question of how to determine whether
discrimination is fair or unfair therefore remains relevant, regardless of
whether the discrimination is on a listed or unlisted ground.
 According to the Constitutional Court, the relevant party will be able
to prove the unfairness of the discrimination with reference to the fact
that at the heart of the prohibition of unfair discrimination lies a
recognition that the purpose of the Constitution is the establishment of
a society in which all people are accorded equal dignity and respect
regardless of their membership of particular groups. As the Court
remarked in Harksen, the prohibition on unfair discrimination
‘provides a bulwark against invasions which impair human dignity or
which affect people adversely in a comparably serious manner’.160 This
remark seems to imply that any determination of the unfairness of the
discrimination depends on whether the human dignity of the
complainant has been impaired.161 If dignity is conceptualised in a
manner that also speaks to the material conditions in which we all live,
the unfairness inquiry might get closer to addressing the full extent to
which inequality disadvantages some and privileges others. The
changing social, political and economic context must be considered
when assessing the fairness or unfairness of the discrimination. What
would be required in the assessment of fairness is ‘a flexible but
“situation sensitive” approach’ because of ‘shifting patterns of hurtful
discrimination and stereotypical response in our evolving democratic
society’.162 As the world around us changes, the same measures might
impact on people differently. This analysis acknowledges the fact that a
determination of unfair discrimination cannot be made in the abstract.
The determination must take into account South Africa’s particular
history as well as the structural inequality in our society which
promotes and perpetuates the subordination of certain individuals and
groups.163 Both the social and economic effects of past discrimination as
well as the continuing prejudice and stigmatisation of people belonging
to disfavoured groups frame this contextual enquiry into the fairness or
unfairness of the discrimination.
The Court, therefore, stressed that what is important is that the
enquiry focus on the impact of the discrimination on the victim.164 To
determine whether the discriminatory provision has had an unfair
impact on the victim, a court must consider various factors. In essence,
this is a proportionality test which requires the court to weigh up
various factors and then decide whether the scales will tip in favour of a
decision that the discrimination is fair, or rather, in favour of a decision
that the discrimination is unfair. On the one side of the scales, the court
places the interests of the person and/or group complaining that they
have been discriminated against, on the other side of the scales, the
court places the interest of the state and/or society as a whole. The court
weighs up these interests and decides whether the discrimination is fair
or unfair. Although there is no closed list of factors, the Constitutional
Court in the Harksen case highlighted the following factors to guide this
enquiry:
(a) ‘[T]he position of the complainants in society, whether they have
suffered in the past from patterns of disadvantage, whether the
discrimination in the case under consideration is on a specified
ground or not:’165 The examination is often backward looking so as
to establish the historical factors that led to patterns of group
disadvantage and harm.166 A group of complainants can be
vulnerable for a range of often interrelated reasons. They can belong
to a group that is economically marginalised167 and/or suffers from
stigmatisation, marginalisation or prejudice, for instance because of
racism, sexism, homophobia or HIV stigmatisation,168 and/or
political minority status.169 It is more difficult to show that
discrimination against those who have suffered from past or
ongoing discrimination is fair than it is to show that discrimination
against those who have benefitted from past discrimination is unfair.
Therefore, discrimination against white people, men, heterosexuals
and able-bodied individuals is easier to justify as fair than
discrimination against black people, women, gay men and lesbians
and disabled individuals.
(b) ‘[T]he nature of the provision or power and the purpose sought to be
achieved by it:’ If the purpose of the provision is not directed at
impairing the complainants’ human dignity, but is aimed at
achieving a worthy goal such as, for example, the furthering of the
achievement of substantive equality or some other important
societal or legislative goal, this may tip the scales in favour of a
finding that the discrimination is fair. For example, a legislative
provision that prohibits blind people from acquiring a driver’s
 licence discriminates against a group on the basis of disability.
However, this discrimination may well be found to be fair because
the discrimination is aimed at achieving an important purpose,
namely to ensure road safety. The more important and pressing the
purpose of the discrimination is, the more likely that a court will find
the discrimination to be fair.
(c) With due regard to the factors mentioned above as well as any other
relevant factors, a court must then ask to what extent ‘the
discrimination has affected the rights or interests of the
complainants and whether it has led to an impairment of their
fundamental human dignity or constitutes an impairment of a
comparably serious nature’. The more invasive the nature of the
discrimination is, the more likely the discrimination will be held to
be unfair. For example, in National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others, the
Constitutional Court found that the discrimination against gays and
lesbians was ‘severe’ since ‘no concern, let alone anything
approaching equal concern’ was shown towards the group.170 In
other words, a court must ask whether, given the factors above, it
would be fair to discriminate against a group. It will not be fair if the
discrimination fundamentally affects the human dignity of the
group of complainants.

This contextual test is aimed at protecting all individuals in society

without hampering the achievement of substantive equality which
provides that individuals belonging to different groups may have to be
treated differently in certain circumstances. The more severe the impact
is on the group complaining of discrimination, and the more vulnerable
the group, the more likely that the court will find the discrimination to
be unfair and hence unconstitutional. The more important and pressing
the purpose of the discrimination, the more likely that the court will
find the discrimination to be fair. This inevitably calls for a value
judgment. A court must determine, first, how vulnerable the group
complaining about the discrimination is; second, how serious the
impact of the discrimination on them is, and, third, how important the
purpose for the discrimination is. This value judgment does not occur in
the abstract, but within a specific context, including the socio-economic
context that exists at the time in the country.

An example of indirect discrimination

The manner in which section 9(3) must be applied can
be illustrated using the example set out below.
Imagine the South African Police Service Act171 is
amended to regulate the employment of police officers
in the South African Police Service (SAPS). A new
section of the Act determines that no one shall be
appointed to the SAPS unless that person is at least
1,79 m tall and weighs at least 75 kg. The Minister
argues that these requirements are necessary because
members of the SAPS encounter many strong and
violent individuals. Police officers, therefore, need to
have the physical strength to subdue suspects.
A constitutional attack on the provision could be
launched on the basis that the section indirectly
discriminates against women on the ground of sex. This
is because, when they are compared to men, a
disproportionate number of women are shorter than
1,79 m. Although the provision does not directly
exclude women from employment, the effect of the
provision would be to exclude most women from
employment in the SAPS.
When considering whether this discrimination is
unfair, a court will have regard to the fact that there is
a long history of discrimination against women, also in
the employment field, which would weigh heavily in
favour of a finding of unfair discrimination. Given the
fact that the purpose of the provision, although
seemingly rational, is not pressing because women
officers will be armed and could be partnered with
 physically stronger male colleagues, and given the
severe impact of the provision on women, a court may
well find that the discrimination is unfair.

13.2.5 Non-statutory imposed discrimination: The Promotion

of Equality and Prevention of Unfair Discrimination Act
4 of 2000
As we have seen, a litigant may only rely on section 9 of the Constitution
when attacking the constitutionality of legislative provisions. In cases
where a litigant alleges that discrimination has occurred on the basis of
conduct by a public official, organ of state or private individual or
institution, he or she has to rely on the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA).172 The PEPUDA was
passed in fulfilment of section 9(4) of the Constitution which states that:
‘No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.’ This section affirms the horizontal application of
section 9 to ensure that not only discrimination by the state but also
discrimination by private individuals or institutions is prohibited.
Because of the principle of subsidiarity, litigants who claim that they
have been discriminated against but who do not wish to attack the
constitutionality of legislation must rely on the provisions of the
PEPUDA.173 In the absence of a direct challenge to the PEPUDA, courts
must assume that the PEPUDA is consistent with the Constitution and
must decide claims within its parameters.174 For example, a policy by a
bar or restaurant to reserve its facilities for white people only, a policy
by a school not to admit Rastafarian learners, and a decision by a
Minister to employ only male officials in his department potentially
constitute invalid unfair discrimination. However, these policies or
decisions will have to be attacked by relying on the provisions of the
PEPUDA and not directly on section 9 of the Constitution.
13.2.5.1 Unfair discrimination under PEPUDA
The general principles regarding the application of section 9 of the
Constitution, set out above, remain relevant as the courts must interpret
the PEPUDA in the light of the general principles developed by the
Constitutional Court regarding the enforcement of section 9. The
structure of the inquiry – a two-step approach – also remains the same.
First, we ask whether the different treatment amounts to direct or
indirect discrimination on either listed or analogous grounds (although
this inquiry is enhanced by the definition of discrimination provided in
PEPUDA). Second, if the answer to the first question is yes, we proceed
to inquire into whether the discrimination is unfair or fair – but as
section 14(2) and (3) mention an extensive list of factors to be
considered when deciding on the unfairness of the discrimination, the
PEPUDA inquiry may be more elaborate and multifaceted than the
section 9(3) inquiry. The enquiry into unfair discrimination set out in
especially section 14(3) of PEPUDA includes factors normally taken into
consideration when dealing with section 9 as well as factors normally
taken into account when dealing with section 36(1), the limitation
clause.175 This is because the PEPUDA deals with non-statutory
instances of alleged discrimination not based on a law of general
application.
When it comes to applying PEPUDA and especially when it comes to
determining – during the first step of the inquiry – whether the
differentiation in question amounts to discrimination, a court must take
into account the manner in which discrimination is defined in section 1
of PEPUDA. Section 1 provides in this respect that discrimination
means:
any act or omission, including a policy, law, rule, practice, condition or
situation which directly or indirectly:
(a) imposes burdens, obligations or disadvantage on; or
(b) withholds benefits, opportunities or advantages from, any person on one
or more of the prohibited grounds.

What is clear from this definition is that the PEPUDA definition of

discrimination is also concerned with the impact of the act or omission
on a designated group. This is reinforced by the fact that the PEPUDA
discrimination can also occur either directly or indirectly. It follows,
therefore, that the jurisprudence on indirect discrimination developed
in Walker176 and Jordan177 cases dealing with section 9(3) (and discussed
above) may be applied here. This principle was confirmed by the
Western Cape High Court in Social Justice Coalition and Others v
Minister of Police and Others178 where the Court applied PEPUDA, but
relied on the Walker judgment to decide whether indirect
discrimination occurred. In this case, the Court held that the allocation
of different resources to different police stations in the Western Cape
did constitute indirect discrimination on the basis of race and
contravened the relevant provisions of PEPUDA. In arriving at this
decision, the Court relied on the findings of a Commission of Inquiry
into policing. In its final report, this Commission found, inter alia, that
as a result of the unequal distribution of resources, the number of police
officers allocated to police stations in Khayelitsha was insufficient.179
Given that the overwhelming majority of people living in Khayelitsha
are black Africans, while the overwhelming majority of people living in
areas served by the police stations with a high allocation of human
resources were white, the Court found that this was a case of indirect
discrimination.
Like discrimination in terms of section 9(3) of the Constitution,
discrimination in terms of PEPUDA can occur, not only on one of the 16
grounds listed in section 9(3) of the Constitution, but also on analogous
grounds. Analogous grounds are defined in section 1 of PEPUDA as:
(b) any other ground where discrimination based on that other ground –
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and
freedoms in a serious manner that is comparable to discrimination on
one of the listed grounds.

Analogous grounds will include all the analogous grounds – HIV status,
citizenship, conception infertility – already confirmed by the
Constitutional Court. However, in a potentially radical move, the
Western Cape High Court held in the Social Justice Coalition case that
‘poverty’ also amounted to an analogous ground of discrimination.180
The Court seems to have endorsed the arguments of the applicant that
poverty was a ground of discrimination which caused or perpetuated
systemic disadvantage, undermined human dignity, or adversely
affected the equal enjoyment of the rights and freedoms of the affected
people.181 The Court held that as a result of our history and economic
system, poverty is a systemic problem in South Africa. In addition, the
Court held further, poor people form part of a community that is
vulnerable and marginalised. It follows, therefore, that poverty is
analogous to the other grounds expressly listed in section 9(3) of the
Constitution.182
Once the applicant has made out a prima facie case that
discrimination occurred on either a listed ground or an analogous
ground, the onus shifts to the respondent, who will have to prove that
the discrimination is fair.183 To determine whether the discrimination is
fair or unfair, regard must be had to the factors listed in section 14(2)
and (3) of PEPUDA. Before embarking on a proportionality analysis in
which various interests are weighed up or balanced against each other,
however, a court must first ask:
whether the discrimination reasonably and justifiably differentiates between
persons according to objectively determinable criteria, intrinsic to the activity
concerned.184

This question recognises that some activities can plausibly only be

performed by individuals belonging to a group associated with a
particular listed or analogous ground. In such cases, the sting is taken
out of the ‘discrimination’ because the ‘discrimination’ is required by
the activity involved. The test here is strict, as it requires a factual
finding that, objectively, the differentiation was intrinsic to the activity
concerned. A security company that decides to appoint only security
guards who are at least 1,8 metres tall and argues that being tall is an
intrinsic requirement of the job of a security guard because security
guards have to scale high walls, will probably not be successful in
arguing that the indirect discrimination against women185 is fair
because to be tall is an intrinsic requirement for the job of security
guard. People will differ on whether this claim is true or false, which
means it is more a matter of opinion than fact. The matter would be
different if a drug company decide that only women of child-bearing
age can take part in a medical study testing the effects of various
medicines on pregnant women. As only women can fall pregnant, it will
not constitute unfair discrimination to exclude men from such a study
as being a woman is intrinsic to the activity involved. Similarly, the
producer of a movie depicting the real-life story of the involvement of
an apartheid era President in the state-sponsored murder of political
opponents, will have no choice but to cast a white man in the role of the
President as apartheid Presidents were all white men – given South
Africa’s history, it is an intrinsic requirement for the job of playing an
apartheid era President to be white and male. While the different
treatment in the two examples above remain discrimination (in the
technical sense associated with discrimination jurisprudence in South
Africa), the discrimination will not be unfair. While our courts have not
discussed the scope and content of this provision, its wording suggests
that this factor should be considered before proceeding to the balancing
test in which the factors set out in section 14(3) are weighed up against
each other. If the discrimination reasonably and justifiably
differentiates between persons on an analogous or listed ground, in
accordance with objectively determinable criteria intrinsic to the
activity concerned, the discrimination will not be unfair and it will not
be necessary to proceed to the balancing test.
If it is established that the differentiation is not based on objectively
determinable criteria, intrinsic to the activity concerned, the balancing
process - taking into account the factors listed in section 14(3) – can
commence. Like the section 9(3) unfairness inquiry, the PEPUDA
section 14 unfairness test is a proportional one and requires a court to
balance a variety of factors. As is the case with the section 9(3)
unfairness inquiry, one makes the proportionality assessment with
consideration of the context.186 Unlike section 9(3) of the Constitution,
section 14(3) of PEPUDA provides a long list of factors to be considered.
These factors are:
• the impact or likely impact of the discrimination on the complainant
• the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group that
suffers from such patterns of disadvantage
• the nature and extent of the discrimination
• whether the discrimination is systemic in nature
• whether the discrimination has a legitimate purpose
• whether and to what extent the discrimination achieves its purpose
• whether there are less restrictive and less disadvantageous means to
achieve the purpose
• whether and to what extent the respondent has taken such steps as
being reasonable in the circumstances to: (i) address the
disadvantage which arises from or is related to one or more of the
prohibited grounds; or (ii) accommodate diversity.

What is clear from this list is that PEPUDA allows a court to take into
account a wider range of factors than those set out in the Harksen case
relating to section 9(3) of the Constitution to determine whether
discrimination is fair or unfair. Some of the factors mentioned in section
14 of the PEPUDA mirror those relied on by the Constitutional Court in
section 9(3) cases. Other factors seem to track more closely questions
raised during a section 9(2) enquiry, while yet other factors track the
limitation clause enquiry. The Constitutional Court has not provided an
expansive interpretation of this section so we must assume that its
sections 9(2), 9(3) and 36 analyses are all relevant when applying
section 14 of the PEPUDA.
A contextual enquiry remains at the heart of a section 14 enquiry.
Such a contextual enquiry takes account of the history of the
complainants and their position in society as well as the need for
remedial measures to address the effects of past and ongoing unfair
discrimination. This is in order to advance the value of human dignity
for all. Courts have a discretion to consider all the relevant factors listed
in section 14 and then to decide whether the discrimination is fair or
unfair in the light of these factors. All relevant factors relating to a
specific case must be considered as part of a proportionality analysis to
make an overall assessment of whether the discrimination is fair or
unfair. Not all factors listed in section 14 will be relevant in every case –
it will always depend on the facts of the specific case. When considering
the factors that track closely to the section 36(1) limitation clause
inquiry, one can assume that it would be helpful to borrow from the
Constitutional Court jurisprudence on section 36(1). Similarly, when
dealing with section 9(3) factors one can borrow from the
Constitutional Court jurisprudence on section 9(3).
One aspect of the section 14 enquiry, which has elicited some
discussion by the Constitutional Court, is the requirement that a court
must have regard to ‘whether and to what extent the respondent has
taken such steps as being reasonable in the circumstances to …
accommodate diversity’.187 This factor is generally known as the
requirement for reasonable accommodation.
In MEC for Education: Kwazulu-Natal and Others v Pillay,188 the
Constitutional Court had to decide whether the failure of a school
disciplinary code to take into account the religious or cultural practices
of a Hindu learner unfairly discriminated against her. Ms Pillay wanted
to wear a nose stud to school as this formed part of her religious and
cultural beliefs, but the school’s disciplinary code prohibited this. At the
heart of the case was whether the school had reasonably
accommodated the minority’s religious and cultural practices.
The Court explained that reasonable accommodation required
institutions to ‘take positive measures and possibly incur additional
hardship or expense in order to allow all people to participate and enjoy
all their rights equally’.189 The aim is to ensure that groups are not
relegated to the margins of society because they do not or cannot
conform to certain social norms.190 At the heart of this principle is the
need positively to accommodate diversity. ‘Those steps might be as
simple as granting and regulating an exemption from a general rule or
they may require that the rules or practices be changed or even that
buildings be altered or monetary loss incurred.’191 The extent to which
an institution or community should reasonably accommodate the
cultural and religious beliefs and practices of others is a difficult
question. However, the Constitutional Court has argued that this must
be answered with reference to the specific context. As such, reasonable
accommodation is ‘an exercise in proportionality that will depend
intimately on the facts’ of each case.192
When considering whether discrimination as defined by the
PEPUDA is reasonable or not, ‘reasonable accommodation will always
be an important factor’.193 However, it would be wrong to reduce the test
for fairness to a test for reasonable accommodation. As the
Constitutional Court explained in Pillay:
There may be circumstances where fairness requires a reasonable
accommodation, while in other circumstances it may require more or less, or
something completely different. It will depend on the nature of the case and the
nature of the interests involved. Two factors seem particularly relevant. First,
reasonable accommodation is most appropriate where, as in this case,
discrimination arises from a rule or practice that is neutral on its face and is
designed to serve a valuable purpose, but which nevertheless has a
marginalising effect on certain portions of society. Second, the principle is
particularly appropriate in specific localised contexts, such as an individual
workplace or school, where a reasonable balance between conflicting interests
may more easily be struck. Even where fairness requires a reasonable
accommodation, the other factors listed in section 14 will always remain
relevant.194

What is clear is that when determining whether discrimination is fair or

unfair, a court has to balance the various interests and has to make a
value judgment, guided by the factors set out in section 14 of the
PEPUDA. Thus, an institution may discriminate against a group which
previously benefitted from unfair discrimination in order to address the
effects of past and ongoing unfair discrimination. This may well weigh
heavily in favour of finding the discrimination to be fair unless the
considerations set out by the Constitutional Court when it applied
section 9(2) mitigates against such a finding. Similarly, where
discrimination entrenches the privileges of those who benefitted from
past unfair discrimination or perpetuates the stigmatisation and
marginalisation of disfavoured groups, it would be difficult for a court to
find that the discrimination was fair. It is, therefore, important when
applying the section 14 criteria to have regard for the Constitutional
Court’s jurisprudence on the various subsections of section 9 of the
Constitution.
 The principle of reasonable accommodation
as it applies in the disability field
In Pillay, Ngcobo J explained the principle of
reasonable accommodation as it applies in the
disability field in the following manner:
Disabled people are often unable to access or participate in
public or private life because the means to do so are designed for
able-bodied people. The result is that disabled people can,
without any positive action, easily be pushed to the margins of
society:

‘Exclusion from the mainstream of society results from the

construction of a society based solely on ‘mainstream’
attributes to which disabled persons will never be able to gain
access. Whether it is the impossibility of success at a written
test for a blind person, or the need for ramp access to a
library, the discrimination does not lie in the attribution of
untrue characteristics to the disabled individual. The blind
person cannot see and the person in a wheelchair needs a
ramp. Rather, it is the failure to make reasonable
accommodation, to fine-tune society so that its structures and
assumptions do not result in the relegation and banishment
of disabled persons from participation, which results in
discrimination against them.’195

The notion of reasonable accommodation, therefore, is

a powerful tool to disturb often invisible norms which
prevail because these norms are shared by the
majority or by economically and culturally powerful
groups. For example, municipal regulations that
prohibit the slaughtering of animals in residential areas
are based on the cultural beliefs and practices of the
white minority who do not generally slaughter animals
during major celebrations. The neutral rule prohibiting
the slaughtering of animals is based on a seemingly
rational assumption that it is unhygienic to allow the
slaughtering of animals in residential areas. This rule
can arguably be said to fail reasonably to
accommodate the cultural beliefs and practices of
 many black South Africans. Once this is accepted, the
question is not whether such cultural practices of the
majority should be accommodated, but rather how to
accommodate such practices while not negating the
seemingly rational aims of such regulations.

13.2.5.2 Redress under PEPUDA: section 14(1)

Questions have been raised about whether redress policies not imposed
by legislation, but rather on the basis of conduct by a public official,
organ of state or private individual or institution, should be tested with
reference to the relevant provision of PEPUDA (section 14(1)) or
whether they should be tested with reference to section 9(2) of the
Constitution. In several cases in which the Constitutional Court was
asked to consider the constitutionality of non-legislative redress
measures, the Court applied section 9(2) and ignored the question of
whether the principle of subsidiarity requires it to apply section 14(1) of
PEPUDA instead of section 9(2) of the Constitution.196 However, in
Solidariteit Helpende Hand NPC & another v Minister of Basic Education
& others197 the High Court was asked to consider the validity of a redress
bursary scheme as measured against the requirements of section 9(2) of
the Constitution, and suggested that the complaint should have been
brought under the PEPUDA and not under section 9(2) as the principle
of subsidiarity still applied.198 This seems to be the correct approach. As
Albertyn points out, this approach is also in line with the very structure
and purpose of PEPUDA:
The Equality Act prohibits unfair discrimination, and explicitly endorses and
enables positive measures. Its preamble speaks to the ‘advancement, by special
legal and other measures, of historically disadvantaged individuals,
communities and social groups who were dispossessed of their land and
resources, deprived of their human dignity and who continue to endure the
consequences’. Chapter Five — although still not promulgated seventeen years
later — sets out the duties and responsibilities of the public and private sectors
to promote equality (positive duties). In the section concerning unfair
discrimination, s 14(1) imports the constitutional language of s 9(2) to state: ‘It
is not unfair discrimination to take measures designed to protect or advance
persons or categories of persons disadvantaged by unfair discrimination or the
 members of such groups of categories of persons.’ In other words, the Equality
Act appears to set up positive measures as a possible defence to a claim of
unfair discrimination, as in s 9 of the Constitution. Although there has been no
judicial interpretation of positive measures within s 14(1) to date, at the very
least, it is open to a court to import a Van Heerden-type test into the Equality
Act.199

It is important to note that the wording of section 9(2) of the

Constitution is similar (but not identical) to the wording of section 14(1)
of PEPUDA. Unless the Constitutional Court holds otherwise, we
suggest that a litigant challenging the lawfulness of a non-statutory
imposed redress policy is required in terms of the principle of
subsidiarity to rely on section 14(1) of PEPUDA and cannot rely on
section 9(2) of the Constitution. However, given the similarity in
language, it may be appropriate to import the section 9(2) test
developed in the Van Heerden case into section 14(1) of PEPUDA.
Recall that PEPUDA applies to all non-legislative action. When the
redress policy being challenged was adopted and implemented by a
private person or institution, the party challenging the validity of the
policy will only be able to rely on section 14(1). However, where a policy
is adopted and implemented through the exercise of public power, the
party challenging the validity of the policy will additionally be able to
rely on the principle of legality, as we explained in the section on
redress above.

13.3 The right to human dignity

13.3.1 Introduction
As we indicated at the beginning of this chapter, dignity is one of the
founding values of the Constitution and permeates many aspects of the
Constitution.200 As we have seen, the value of dignity is used to interpret
the right to equality guaranteed in section 9 of the Constitution. Dignity
also permeates the interpretation of other rights in the Bill of Rights,
including social and economic rights.201
 However, dignity is not only one of the founding values of the
Constitution, it is also an independent, self-standing, enforceable right.
Section 10 of the Constitution thus states that ‘[e]veryone has inherent
dignity and the right to have their dignity respected and protected’. The
right, therefore, implies an expectation to be protected from conditions
or treatment which offends a person’s sense of his or her worth in
society. In particular, treatment which is abusive, degrading,
humiliating or demeaning is a violation of this right.202 Moreover,
conduct which treats a person as non-human or less than human or as
an object is intolerable and contrary to section 10 of the Constitution.203
At the heart of the right to dignity is the assumption that each
human being has incalculable human worth, regardless of
circumstances, and should be treated accordingly. This idea or value is
‘at the inner heartland of our rights culture’.204 Dignity can be viewed as
a personal right associated with a person’s identity,205 autonomy and
moral agency.206 In his separate judgment in Walker, Sachs J held that
the right to dignity necessarily entails that everyone has the same moral
worth207 as dignity entails an acknowledgement of ‘the intrinsic worth of
human beings’ and the recognition that ‘human beings are entitled to
be treated as worthy of respect and concern’.208 Moreover, human
dignity demands that people be treated as unique individuals rather
than as representatives of a group.
South African courts have developed a comprehensive meaning of
the right to human dignity. In light of the fact that the Constitution
permits reference to foreign law to interpret the rights in the Bill of
Rights, our courts have invoked the jurisprudence of foreign
jurisdictions to clarify the meaning of the concept of human dignity.
Specifically, former Chief Justice Chaskalson referred to the case of Law
v Canada (Minister of Employment and Immigration)209 when he
delivered the Third Bram Fischer lecture in 2000.210 In this case, the
Canadian Supreme Court described human dignity as follows:
Human dignity means that an individual or group feels self-respect and self-
worth. It is concerned with physical and psychological integrity and
empowerment. Human dignity is harmed by unfair treatment premised upon
personal traits or circumstances which do not relate to individual needs,
capacities, or merits. It is enhanced by laws which are sensitive to the needs,
 capacities and merits of different individuals, taking into account the context of
their differences. Human dignity is harmed when individuals and groups are
marginalised, ignored, or devalued, and is enhanced when laws recognise the
full place of all individuals and groups within society.211

However, dignity can be viewed as including more than the

individualised personal well-being of the bearers of rights. Understood
more broadly, dignity aims to create an opportunity for every individual
to reach his or her full potential and to experience complete freedom. In
terms of this more encompassing view, ‘dignity, properly understood,
secures the space for self-actualisation’.212 If we view dignity as the
conduit to achieve the more expansive notion of human freedom, it
addresses the entire set of factors – including social and economic
factors – that may limit an individual’s agency.213 Ackermann J’s dictum
in the case of Ferreira v Levin NO and Others; Vryenhoek and Others v
Powell NO and Others is telling when he states:
Human dignity cannot be fully valued or respected unless individuals are able
to develop their humanity, their ‘humanness’ to the full extent of its potential.
Each human being is uniquely talented. Part of the dignity of every human
being is the fact and awareness of this uniqueness. An individual’s human
dignity cannot be fully respected or valued unless the individual is permitted to
develop his or her unique talents optimally. Human dignity has little value
without freedom; for without freedom personal development and fulfilment
are not possible. Without freedom, human dignity is little more than an
abstraction. Freedom and dignity are inseparably linked. To deny people their
freedom is to deny them their dignity.214

In the following sections we discuss the manner in which dignity as a

value differs from dignity as a protected right. We also explore the ways
in which the Constitutional Court has used the right to dignity as a
catch-all right to be invoked in cases where none of the other rights are
applicable.

13.3.2 Human dignity as a right and as a value

During the period of colonialism and apartheid, the system visited
indignity on indigenous South Africans. The system humiliated and
degraded black South Africans who did not enjoy ‘full moral
citizenship’. It is, therefore, not surprising that dignity is not only one of
the foundational values embedded in the Constitution,215 it is also one
of the entrenched fundamental rights in section 10 of the Constitution It
is, therefore, important to distinguish between dignity as a value
invoked to interpret other rights in the Bill of Rights and dignity as a
free-standing right that can be relied on.
The value of dignity is important for our understanding of most or all
rights because, as the Constitutional Court has pointed out:
The Constitution asserts dignity to contradict our past in which human dignity
for black South Africans was routinely and cruelly denied. It asserts it too to
inform the future, to invest in our democracy respect for the intrinsic worth of
all human beings. Human dignity therefore informs constitutional
adjudication and interpretation at a range of levels. It is a value that informs
the interpretation of many, possibly all, other rights. This Court has already
acknowledged the importance of the constitutional value of dignity in
interpreting rights such as the right to equality, the right not to be punished in
a cruel, inhuman or degrading way, and the right to life. Human dignity is also
a constitutional value that is of central significance in the limitations
analysis.216

Human dignity as a value, therefore, has been invoked in many different

settings, but especially to guide the interpretation of other rights. For
example, the value of human dignity has been invoked in socio-
economic rights interpretation. As we shall see, when determining
whether the state has acted reasonably to give effect to various social
and economic rights, the notion of dignity is often invoked. Thus, in
Government of the Republic of South Africa and Others v Grootboom and
Others, the Constitutional Court held that the foundational values of the
Constitution, those of human dignity, freedom and equality, are denied
to those who have no food, clothing or shelter.217 The Court made a
similar move in Minister of Health and Others v Treatment Action
Campaign and Others (No 2), in which the Court held with reference to
the right of access to health care that ‘[n]o one should be condemned to
a life below the basic level of dignified human existence’.218 As
Liebenberg points out, the value of dignity is here used in its expansive
form, implying that the dignity of human beings can be safeguarded
only if they live in conditions that enable them to develop their
capabilities, to participate as agents in the shaping of their society.219 As
Liebenberg suggests, the reliance on the value of dignity in social and
economic rights cases affirms that dignity ‘does not or should not
confine us to individual personality issues but can focus our gaze on
material conditions of advantage and disadvantage in society’.220
As pointed out above, dignity is not only a value fundamental to our
Constitution, it is also a justiciable and enforceable right that must be
respected and protected. Given that the value of dignity informs the
interpretation of many, if not all, of the rights contained in the Bill of
Rights, in most cases where the value of human dignity is offended, ‘the
primary constitutional breach occasioned may be of a more specific
right’.221 This leaves a limited but pivotal role for the right to human
dignity, as opposed to the value of human dignity. The right to dignity
will be of particular importance where none of the other rights
specifically protects the interest at stake.222 However, South African
constitutional jurisprudence does not require a litigant to choose only
one right to rely on, which means that a litigant may invoke the right to
dignity alongside one or more of the other rights contained in the
Constitution. There will, nevertheless, be some situations in which the
harm cannot be specifically addressed by another right and in these
cases the litigant will have to rely exclusively on the right to dignity to
attack the constitutional validity of a law or conduct. Although this is
not a closed list, the Constitutional Court has held that the right to
dignity encompasses at least the following three situations.

a) A right to family life

The Constitutional Court has held that the right to dignity includes the
right to family life,223 which consists of the right to marry and the right to
raise a family.224 This means that legislation that threatens the ability of
a foreign national to remain in the county with his or her South African
spouse, dependent children and destitute, aged or infirm family
members, infringes on the right to dignity. Thus, the right to dignity
includes a right for family members to cohabit. The Constitutional
Court explained the nexus between cohabitation and the right to
dignity as follows:
 The decision to enter into a marriage relationship and to sustain such a
relationship is a matter of defining significance for many if not most people and
to prohibit the establishment of such a relationship impairs the ability of the
individual to achieve personal fulfilment in an aspect of life that is of central
significance … [Legislation curtailing the ability to cohabit] would clearly
constitute an infringement of the right to dignity. It is not only legislation that
prohibits the right to form a marriage relationship that will constitute an
infringement of the right to dignity, but any legislation that significantly
impairs the ability of spouses to honour their obligations to one another would
also limit that right. A central aspect of marriage is cohabitation, the right (and
duty) to live together, and legislation that significantly impairs the ability of
spouses to honour that obligation would also constitute a limitation of the right
to dignity.225

Thus, where the state provides alternative accommodation to people

evicted from their homes, it would infringe on the right to dignity to
force husbands and wives to stay in separate accommodation, as well as
to separate children from their parents. Where families are separated in
this way, it ‘creates a vast chasm – between parents and children,
between partners and between siblings – where there should be only
intimacy and love’. Such rules that enforce family separation further
‘erodes the basic associative privileges that inhere in and form the basis
of the family’.226

b) A right to have one’s agency respected and protected

The right to dignity is also implicated when individuals are treated in a
manner that limits their ability to make meaningful choices about their
daily lives. Thus, in Dladla and Another v City of Johannesburg and
Others,227 the Constitutional Court held that it infringed on the right to
dignity when the state provides shelter to people evicted from their
homes, but requires the inhabitants to be out of the shelter between
08h00 and 17h30 every day and to return no later than 20h00, or face
the prospect of not being allowed to enter the shelter for the night. The
Court held that this rule was ‘cruel, condescending and degrading’228 as
it forced people onto the streets during the day and disproportionately
affected people who work at night and sleep during the day.229 The
Court held that this rule:
 treats people like children. It undercuts the ability of [those locked out] to
make plans and to make use of their time as they see fit. Clearly, the
implication is that the applicants cannot manage their own affairs and have to
be shepherded to and fro. … The right [to dignity] is given effect only if the
applicants have a place they can call their own to which they can retreat at any
time. The lockout rule destroys their ability to avail themselves of such
solitude.230

This fact that the right to dignity includes a right to have one’s agency
respected is a potentially important development as it illustrates that
the right to dignity is not only concerned with the personal feelings of
an individual who has been treated badly. In addition, it allows us to
focus on the negative impact of legislation, rules and policies that
patronise individuals by limiting their ability to make meaningful life
choices. The potentially far-reaching effect of this development is
illustrated by the Constitutional Court judgment in Freedom of Religion
South Africa v Minister of Justice and Constitutional Development and
Others.231 In this case, the Court held that the common law rule which
allowed parents to inflict corporal punishment on their children as long
as this amounted to moderate chastisement, was unconstitutional. The
judgment relied in part on section 12(1)(c) of the Constitution that
guarantees everyone the right to be free from all forms of violence.232
However, the Court also held that this rule infringed on children’s right
to human dignity. This is because ‘children are constitutionally
recognised independent human beings, inherently entitled to the
enjoyment of human rights, regardless of whether they are orphans or
have parents’.233 Quoting from an earlier Constitutional Court
judgment,234 the Court explained that the fact that children enjoy the
right to dignity has far-reaching consequences for how they should be
viewed by the law.
If a child is to be constitutionally imagined as an individual with a distinctive
personality, and not merely as a miniature adult waiting to reach full size, he or
she cannot be treated as a mere extension of his or her parents, umbilically
destined to sink or swim with them … Individually and collectively all children
have a right to express themselves as independent social beings, to have their
own laughter as well as sorrow, to play, imagine and explore in their own way,
to themselves get to understand their bodies, minds and emotions, and above
all to learn as they grow how they should conduct themselves and make
choices in the wide social and moral world of adulthood. And foundational to
 the enjoyment of the right to childhood is the promotion of the right as far as
possible to live in a secure and nurturing environment free from violence, fear,
want and avoidable trauma.235

Corporal punishment, said the Court, causes ‘a sense of shame, a sense

that something has been subtracted from one’s human whole’ in those
on whom it is inflicted, and thus limits the right to human dignity
guaranteed in section 10 of the Constitution.236 The passage quoted
above again underlines the fact that the right to dignity focuses not only
on the personal feelings of the individual, but also on whether the
individual is capable of making meaningful life choices and thus on
whether the individual enjoys a degree of human agency. A legal
provision, policy or other action that limits the ability of an individual to
make meaningful life choices may potentially infringe on the right to
human dignity.

c) The right not to be degraded, stigmatised and devalued

We have already noted that the value of dignity plays an important role
in the interpretation of the right not to be unfairly discriminated against
guaranteed in section 9(3) of the Constitution. But there will often also
be a close relationship between the infringement of the right against
unfair discrimination and the right to have your dignity respected and
protected. This will especially be the case when the sting in the
discrimination is as a result of degrading and humiliating treatment of a
group of individuals. Thus, in National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others,237 the
Constitutional Court held that the common law criminalisation of
sodomy was not only a violation of the right not to be unfairly
discriminated against, but also of the right to dignity. The Court held
that the criminalisation of same-sex sodomy infringed on the right to
dignity because it had subjected gay men to the risk of arrest,
prosecution and conviction of the offence of sodomy simply because
they sought to engage in sexual conduct which was part of their
experience of being human. The criminalisation of sodomy had the
effect of degrading and devaluing gay men, which was an invasion of
their dignity.
 Just as apartheid legislation rendered the lives of couples of different racial
groups perpetually at risk, the sodomy offence builds insecurity and
vulnerability into the daily lives of gay men. There can be no doubt that the
existence of a law which punishes a form of sexual expression for gay men
degrades and devalues gay men in our broader society. As such it is a palpable
invasion of their dignity and a breach of section 10 of the Constitution.238

More recently, in the case of Minister of Home Affairs and Another v

Fourie and Another, the Constitutional Court declared that the denial of
the right of homosexual persons to marry ‘represented a harsh if
oblique statement by the law that same-sex couples are outsiders, and
that their need for affirmation and protection of their intimate relations
as human beings is somehow less than that of heterosexual couples’.239
This degraded and devalued people with a same-sex sexual attraction as
it sent a signal that same-sex couples were not worthy of the same rights
and protections as heterosexual couples. To remedy this indignity, the
Court declared the common law definition of marriage inconsistent
with the Constitution and invalid to the extent that it did not permit
same-sex couples to enjoy the status and benefits coupled with
responsibilities it accorded to heterosexual couples.

Other forms of indignity activating the right to

human dignity
In Teddy Bear Clinic for Abused Children and Another v
Minister of Justice and Constitutional Development
and Another,240 the Constitutional Court also invoked
the right to human dignity to declare invalid sections
15 and 16 of the Sexual Offences and Related Matters
Amendment Act.241 The impugned sections
criminalised consensual sexual intercourse between
adolescents (defined as children between 12 and 16
years of age) as well as other forms of physical contact
between adolescents including petting, kissing and
hugging. The Act stated that in such cases both of the
adolescents involved had to be prosecuted. The Act,
 however, also provided for a ‘close-in-age’ defence for
those adolescents who were charged with petting,
kissing and hugging, but not for those adolescents who
were charged with sexual intercourse. This defence
provided that where the age difference between the
adolescents was no more than two years at the time of
the alleged commission of the offence’242 they could
not be prosecuted for petting, kissing or hugging. They
could, however, still be prosecuted for sexual
intercourse.
In coming to the conclusion that sections 15 and
16 of the Act infringed the right to human dignity, the
Court stated:
It cannot be doubted that the criminalisation of consensual sexual
conduct is a form of stigmatisation which is degrading and
invasive. In the circumstances of this case, the human dignity of
the adolescents targeted by the impugned provisions is clearly
infringed. If one’s consensual sexual choices are not respected by
society, but are criminalised, one’s innate sense of self-worth will
inevitably be diminished. Even when such criminal provisions are
rarely enforced, their symbolic impact has a severe effect on the
social lives and dignity of those targeted. It must be borne in
mind that sections 15 and 16 criminalise a wide range of
consensual sexual conduct between children: the categories of
prohibited activity are so broad that they include much of what
constitutes activity undertaken in the course of adolescents’
normal development. There can also be no doubt that the
existence of a statutory provision that punishes forms of sexual
expression that are developmentally normal degrades and inflicts
a state of disgrace on adolescents. To my mind, therefore, the
stigma attached to adolescents by the impugned provisions is
manifest. The limitation of section 10 of the Constitution is
obvious and undeniable.243

In conclusion, the right to dignity has the potential to be used by the

courts to deal with human rights infringements not specifically
addressed by other rights explicitly included in the Bill of Rights. It may
well be that as society evolves and as we recognise new forms of
indignity not captured by the text of the Bill of Rights, the Constitutional
Court may interpret the right to human dignity to provide protection to
individuals affected by these affronts to their dignity. This turns the right
to human dignity into a potentially powerful tool to ensure that the Bill
of Rights addresses evolving human rights concerns. Dawood and
Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another v Minister of
Home Affairs and Others244 is an important case for the purpose of
illustrating the fact that dignity operates as both a right and a value in
our constitutional sphere.245 While many of these indignities will
amount to unfair discrimination and could then be dealt with under
section 9(3) of the Constitution, section 9(3) could be invoked in such
cases alongside the right to human dignity in section 10. But where the
indignity cannot neatly fit into the section 9(3) framework, a court may
extend the scope of the right to human dignity in cases it deems
appropriate. Finally, it should be noted that there is a close link between
human dignity and the right to privacy in our constitutional order. As
the right to privacy recognises that human beings have a right to a
sphere of intimacy and autonomy that should be protected from
invasion, it is a right that fosters human dignity.246 This must be kept in
mind whenever the content and scope of the right to privacy is
considered.

13.4 The right to freedom and security of the person

13.4.1 Introduction
In the light of its cruel, discriminatory and oppressive nature, it is not
surprising that there was massive resistance to apartheid both inside
and outside the country. This resistance gave rise to many
organisations, including the African National Congress, the South
African Communist Party and the Pan African Congress. It also took
many forms, including armed resistance, economic and sports boycotts,
pickets and strikes. In order to control and ultimately supress these acts,
the apartheid state relied on both legal and extra-legal mechanisms.
 As the Constitutional Court pointed out in De Lange v Smuts NO,247
among the most egregious of these legal mechanisms was the system of
administrative detention without trial for political purposes. Detention
without trial allowed the apartheid security police to arrest activists and
detain them for long periods of time, without having to charge or
prosecute them. Detention was a weapon used by the apartheid regime
to intimidate activists and also provided the opportunity for the security
police to interrogate and torture detained activists. So, although
detention without trial was authorised by law, detainees were
(ostensibly unlawfully) tortured and some died at the hands of the
security police because of this torture. Among the most prominent
detainees to be killed in this way were Ahmed Timol (b.1941, d.1971),
Steven Bantu Biko (b.1946, d.1977) and Neil Aggett (b.1953, d.1982).
Given this history, it is not surprising that section 12 of the
Constitution guarantees a right to freedom and security of the person.
The provisions of this section embody two severable but interrelated
rights. First, a general right to freedom grounded in physical integrity
and, second, a definitive right to bodily and psychological integrity.
Section 12(1) provides in this respect that:
Everyone has the right to freedom and security of the person, which includes
the right:
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.

And, section 12(2) provides that:

Everyone has the right to bodily and psychological integrity, which includes
the right:
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.

The death in detention of Ahmed Timol

Apart from being a human rights abuse itself,
detentionthe Inquest Court held, that South Africa
without trial is often accompanied by other human
rights abuses such as assault, torture and murder. This
is clearly illustrated by the death in detention of
Ahmed Timol.
At the time he died, Mr Timol was 29 years old. He
was a teacher by profession and he was a member of
the then banned South African Communist Party. On
22 October 1971 he was arrested together with a
fellow communist, Mr (later Professor) Salim Essop, at
a police road block for carrying banned literature. After
they were arrested, Mr Timol and Mr Essop were taken
to the Newlands Police Station where they were
handed over to the Security Branch of the South
African Police and then taken to John Vorster Police
Station. Five days later Mr Timol died while still in the
custody of the Security Branch.
Following Mr Timol’s death, the police claimed that
he had committed suicide by jumping from the 10th
Floor of John Vorster Square. Despite evidence showing
that Mr Timol had been tortured and was barely able
to walk by himself, this claim was accepted at an
inquest held in 1972. The presiding Magistrate thus
found that no one was responsible for his death. Mr
Timol’s family, however, did not accept this verdict and
began their own investigation. As a result of their
investigation, they discovered new evidence implicating
the Security Police and eventually applied to the
authorities for the inquest to be re-opened.
The re-opened Inquest began in 2017 and this
time the presiding Judge found that Mr Timol had not
committed suicide by jumping from the 10th Floor of
John Vorster Square, but rather that he had been
murdered by members of the Security Branch when
they pushed him from the 10th Floor, or possibly the
roof, of the building with the intention of killing him. In
light of this finding, the presiding Judge recommended
that the surviving members of the Security Branch
involved in Mr Timol’s murder should be prosecuted for
their crimes.
In arriving at its verdict, the Inquest Court began its
analysis by setting out the legislative framework that
governed detention without trial in 1971. It began by
pointing out that the apartheid government had
passed a wide range of statutes to suppress
opposition to apartheid. These included the
Suppression of Communism Act,248 the General Law
Amendment Act,249 the Terrorism Act250 and later the
Internal Security Act.251 Mr Timol himself had been
detained in terms of section 6 of the Terrorism Act.252
Section 6 of the Terrorism Act, the Inquest Court
pointed out further, authorised a commissioned police
officer of or above the rank of Lieutenant-Colonel to
detain, without a warrant, a person suspected of being
a terrorist without trial for an indefinite period for the
purposes of interrogation. A terrorist was very broadly
defined in section 2 of the Act as any person who
committed or attempted to commit any act with the
intention of endangering the maintenance of law and
order.253
It was during this period of detention, the Inquest
Court held, that South Africa saw the torture and death
of many detainees as well as the torture of many more
others who survived. It is further under this particular
section in terms of which the detainees, including
Timol, were detained indefinitely and incommunicado.
Only the Commissioner subject to directions from the
Minister, was authorised to order a release of such
detainee ‘when satisfied that he has satisfactorily
 replied to all questions at the said interrogation or that
no useful purposes will be served by his further
detention’.254
The only right a detainee had, the Inquest Court
held further, was to write to the Minister requesting his
or her release. ‘Given the circumstances of secrecy
under which detainees were held, it is doubtful whether
detainees were informed of this right, let alone
assisted to exercise it. Consequently, and as the
evidence in these and other inquests demonstrate, this
drastic legislation became a tool in the hands of some
members of the Security Branch, not only to torture,
but also to kill detainees with impunity.’255
The effect of the security legislation was not limited
to these abuses, the Inquest Court went on to hold. In
addition, it permitted the Security Branch to enter a
detainee’s work place and home and to search for and
seize documents and other evidence without a warrant.
During these search and seizure operations, the
Security Branch would frequently harass the detainee’s
parents, siblings and other relatives. This harassment
would also continue after the detainee had been
released in order to isolate the detainee and his or her
family from their friends and neighbours.256
This is what happened to the Timol family. Apart
from murdering Mr Timol himself, the Security Branch
also detained and tortured his brother, Mohammed,
and harassed his parents and other family members
through numerous visits to their home. Mohammed
was also banned after being released from detention
and eventually he fled into exile.257

13.4.2 The right to freedom

Although section 12 of the Constitution is clearly aimed at prohibiting
detention without trial for political purposes, it goes much further than
this and also guarantees a general right to freedom in section 12(1). This
right to freedom played a prominent role in the early jurisprudence of
the Constitutional Court because the members of the Court disagreed
about its purpose. This disagreement manifested itself most
prominently in Ferreira v Levin NO; Vryenhoek v Powell NO258 where a
majority of the Court held that the primary purpose of the right to
freedom is to protect a person’s physical integrity against intrusion by
the state such as arrest or imprisonment, while a minority held that its
purpose is not only to protect a person’s physical integrity, but also to
protect all of those freedoms that are not expressly stated in the Bill of
Rights, such as the freedom to contract or to bear arms. Had the Court
accepted the minority view, this would have expanded the scope of
section 12(1) considerably. It is therefore important to look into the
arguments advanced by the minority and majority in this case to
understand the nature of what was essentially an ideological
disagreement about the scope of protected freedom in a constitutional
democracy.
In this case, the applicants were summonsed for examination in
terms of section 417 of the Companies Act.259 Apart from giving the
Master of the High Court or the High Court itself the power to summon
a director or officer of a company that is being wound up for
examination, section 417(2)(b) also provided that such a person was
compelled to answer the questions put to him or her even if they were
incriminating and that the answers could be used in evidence against
him or her in criminal proceedings. During the course of their
examination the applicants were asked incriminating questions to
which they objected. After their objection was dismissed, they applied
for an order declaring section 417(2)(b) to be unconstitutional on the
grounds that it infringed, inter alia, section 11(1) of the interim
Constitution.260
Like section 12(1) of the Constitution, section 11(1) of the interim
Constitution provided that ‘[e]very person shall have the right to
freedom and security of the person’. The Constitutional Court
unanimously found that section 417(2)(b) unjustifiably infringed
section 11(1), but only to the extent that it allowed the answers to
incriminating questions to be used in criminal proceedings against the
person who gave the answers. In arriving at this finding, however, the
Court disagreed on the manner in which the right to freedom and
security of the person should be interpreted.
In his main judgment, Ackermann J began his analysis by finding
that the word ‘freedom’ should be read disjunctively from the words
‘security of the person’. This is because the legislative history of the
section showed that the right to personal liberty was only combined
with the right to security very late in the process. This meant that the
‘right to freedom’ must be interpreted as a separate and independent
right, although related to the right to ‘security of the person’.261
After making these points, Ackermann J turned to consider the
scope and ambit of the right to freedom. In this respect he held that the
right to freedom must be defined as widely as possible. This is because
such an interpretation would allow each person to develop his or her
humanity to the full extent of its potential and thus promote the
principle of human dignity. In addition, it would also give each person
the freedom to pursue his or her conception of the good life and thus
promote the concept of an open society.262
In light of these points, Ackermann J held further, the right to
freedom should be defined ‘negatively as the right of individuals not to
have “obstacles to possible choices and activities” placed in their way by
the state’.263 An important consequence of this definition is that the right
to freedom functions as a residual right, protecting freedom rights not
specifically entrenched elsewhere in the Bill of Rights.264
In his majority judgment, Chaskalson P rejected the broad approach
adopted by Ackermann J on the grounds that the primary purpose of
section 11(1) of the interim Constitution was not to protect a residual
right to freedom, but rather to ensure that the ‘physical integrity’ of
every person is protected.265 This did not mean, however, that the right
to freedom was always confined to the protection of physical integrity. If
a freedom of a fundamental nature which calls for protection was
identified and if it could not be protected by any of the other provisions
of the Bill of Rights, then it could be protected by section 11(1). Given
the detailed provision of the Bill of Rights, however, this would happen
only on very rare occasions.266

Ackermann J – negative definition of freedom

Ackermann J’s argument that the concept of freedom
should be interpreted ‘negatively as the right of
individuals not to have “obstacles to possible choices
and activities” placed in their way by the state’ has
been criticised on a number of grounds, based on the
view that an expansive freedom right would potentially
limit the ability of the state to protect individuals
against the powerful and to effect transformation of
society. Among these are the following:
◆ First, it appears to raise the possibility of a
Lochner v New York267 approach being adopted in
South Africa towards labour and social welfare
legislation. In this case, the United States
Supreme Court struck down a law limiting weekly
working hours on the grounds that it infringed the
right to freedom to contract which formed part of
the Due Process Clause. This judgment and those
that followed were criticised on the basis that they
undermined labour and social welfare programmes
and were inconsistent with the modern regulatory
state. In his majority judgment, Chaskalson P
warned that:
[w]e should be careful to avoid the pitfall of Lochner v New York
which has been described by Professor Tribe in his seminal work
on American Constitutional Law, as being ‘not in judicial
intervention to protect ‘liberty’ but in a misguided understanding
of what liberty actually required in the industrial age’. The
Lochner era gave rise to serious questions about judicial review
and the relationship between the court and the legislature, and as
Professor Tribe points out, the collapse of Lochner gave ‘credence
to the notion that the legislative process should be completely
wilful and self-controlled, with absolutely no judicial interference
 except where constitutional provisions much more explicit than
due process were in jeopardy’.268

◆ Second, it fails to take account of the similarly

important value of equality and, consequently, is
incompatible with section 1 of the Constitution
which states that both freedom and equality are
founding values. As Davis points out, the approach
adopted by O’Regan in Bernstein v Bester NO269
towards the relationship between freedom and
equality is preferable.270 In this judgment, O’Regan
J held that:
[t]he conception of freedom underlying the Constitution must
embrace that interdependence without denying the value of
individual autonomy. It must recognise the important role that the
state, and others, will play in seeking to enhance individual
autonomy and dignity and the enjoyment of rights and
freedoms.271

13.4.3 The substantive and procedural aspects of the right to

freedom
Apart from finding that the primary purpose of the right to freedom is to
protect a person’s physical integrity against intrusion by the state, the
Constitutional Court has also set out and discussed the different forms
that this protection takes. In this respect, the Court has held that the
right to freedom consists of both a procedural aspect and a substantive
aspect. The procedural aspect provides that no one may be deprived of
their physical freedom unless a fair and lawful procedure has been
followed, while the substantive aspect provides that even where a fair
and lawful procedure has been followed, no one may be deprived of
their physical freedom on an arbitrary ground or without just cause.272
The scope and ambit of the substantive and procedural aspects of
the right, as well as the relationship between them, was discussed by
the Constitutional Court in its judgment in De Lange v Smuts NO.273 In
this case, the applicant was the sole member of a close corporation that
had been declared insolvent. Following this declaration, the applicant
was summoned to a meeting of the creditors in terms of the Insolvency
Act.274 At this meeting, the applicant refused to answer any questions
put to him or to produce the books and documents he had been asked
to produce. The officer who was presiding over the meeting then issued
a warrant in terms of section 66(3) of the Insolvency Act committing the
applicant to prison until he agreed to co-operate.
Section 66(3) of the Insolvency Act provided that the officer
presiding over a meeting of the creditors may commit to prison: (a) any
person who has been summoned to produce a book or document and
who fails to do so; and (b) any person who is liable to be interrogated
and who refuses to be sworn, or refuses to answer questions lawfully
put to him or her, or does not answer the questions fully and
satisfactorily. In terms of s 39(2) of the Insolvency Act, the officer who
presides over a meeting of the creditors may be the Master of the High
Court, a magistrate or an officer in the public service.
After the warrant was issued, the applicants applied to the Cape
Town High Court for an order declaring section 66(3) of the Insolvency
Act to be unconstitutional on the grounds that it infringed section 12(1)
(a) and section 12(1)(b) of the Constitution. The High Court granted the
order and its order was referred to the Constitutional Court for
confirmation. A majority of the Court found that while section 66(3) did
not infringe the substantive dimension of the right to freedom, it did
infringe the procedural dimension. This is because it allowed a
presiding officer who was not a magistrate to issue a warrant
committing an uncooperative witness to prison. The Court, therefore,
declared the section invalid to this extent.
In arriving at this decision, the Court began by confirming that the
right to freedom consists of a substantive and a procedural aspect. It
stated in this respect as follows:
It can therefore be concluded that section 12(1), in entrenching the right to
freedom and security of the person, entrenches the two different aspects of the
right to freedom referred to above. The one that O’Regan J has … called the
right not to be deprived of liberty ‘for reasons that are not acceptable’ or what
may also conveniently be described as the substantive aspect of the protection
 of freedom, is given express entrenchment in section 12(1)(a) which protects
individuals against deprivation of freedom ‘arbitrarily or without just cause’.
The other, which may be described as the procedural aspect of the protection of
freedom, is implicit in section 12(1) as it was in section 11(1) of the interim
Constitution.275

After making these points, the Court turned to discuss each aspect in
more detail.
In so far as the substantive dimension was concerned, the Court
held that it is aimed at ensuring that a deprivation of liberty cannot take
place without a satisfactory or adequate reason for doing so. This
means, first, that there must be a rational connection between the
deprivation and some objectively determinable purpose. If such a
rational connection does not exist, then the deprivation is arbitrary.
However, even if such a rational connection does exist, that by itself is
not enough. The cause, purpose or reason for the deprivation must be a
‘just’ one.276
When it comes to determining what would constitute a ‘just cause’,
the Court held further, it is not possible to give a comprehensive answer.
Instead, the meaning of this concept will have to be developed on a
case-by-case basis. The concept of a just cause, however, must be based
on and consonant with the values set out in section 1 of the
Constitution and gathered from the provisions of the Constitution as a
whole.277 In the case at hand, the Court found that the purpose
underlying section 66(3) of the Insolvency Act was just because it was
aimed at ensuring that a person who was under a legal duty to give
evidence did so.278
In so far as the procedural dimension of the right to freedom was
concerned, the Court held that although section 12(1)(b) refers only to
the ‘right not to be detained without trial’ and not to any other
procedural components of such a trial it is implicit in the section that
the trial must be a ‘fair’ trial.279 This does not mean, however, that the
trial must comply with all of the requirements embodied in section
35(3) of the Constitution. Instead, it simply requires a hearing
conducted by a judicial officer acting in his or her capacity as a judicial
officer.280
 The fact that a fair trial requires a hearing conducted by a judicial
officer acting in his or her official capacity, the Court held further, is
based on two important grounds.
First, the decision to commit an uncooperative witness to prison is a
judicial function and only judicial officers may perform this function.
This is because they enjoy complete independence from the other
branches of government and therefore are well placed to curb the abuse
of governmental power.
Second, the decision whether to commit an uncooperative witness
to prison is a dispute envisaged by section 34 of the Constitution which
provides that legal disputes must be decided either by a ‘court or, where
appropriate, another independent and impartial tribunal or forum’.281
While a meeting of the creditors may be classified as a tribunal or
forum, it may only be classified as an independent tribunal or forum if
its presided over by a judicial officer.

The deprivation of freedom

As we have already seen, the primary purpose of the
right to freedom guaranteed in section 12(1) of the
Constitution is to protect a person’s physical integrity.
Before a person can claim that this right has been
infringed, therefore, he or she must show that his or
her physical freedom has been constrained or, to put it
another way, that he or she has been deprived of his or
her physical freedom.
There are many different ways in which a person’s
physical freedom can be constrained. These include,
being arrested or imprisoned, being stopped and
searched at a roadblock or being summoned to appear
at and remain at a particular place. While the
Constitutional Court has held that some of these are
sufficient to trigger the application of section 12(1), for
example arresting or imprisoning a person,282 it has
also held that others are not, for example being
 summoned to appear and remain at a particular
place.283
Unfortunately, it is not always clear which
constraints will give rise to a deprivation of freedom
sufficient to trigger the application of section 12(1)(a).
This is partly because the Constitutional Court has not
quantitatively specified the duration, degree or
intensity of the interference that is required for a
deprivation of freedom.

13.4.4 The right to be free from all forms of violence from

either public or private sources
Section 12(1)(c) provides that everyone has the right to be free from all
forms of violence from either public or private sources. In Law Society of
South Africa and Others v Minister for Transport and Another284 the
Constitutional Court highlighted the fact that section 12(1)(c) imposes
both negative and positive duties on the state, because this section
must be read with section 7(2) of the Constitution (discussed in chapter
17), which imposes a duty on the state, not only to respect, but also to
protect, promote and fulfil the rights in the Bill of Rights.285 Relying
heavily on Article 5(b) of the Convention on the Elimination of all forms
of Racial Discrimination (CERD),286 the Court held in this respect that
section 12(1)(c) ‘requires the state to protect individuals both negatively
by refraining from such invasion itself and positively by restraining or
discouraging its functionaries or officials and private individuals from
such action’.287
Apart from imposing both negative and positive duties on the state,
the Court held further, section 12(1)(c) also applies to violence that
emanates from any source, including the negligent driving of a motor
vehicle by a private person. An important consequence of this wide
application is that the state is under an obligation to take legislative and
other steps to protect individuals from being injured or killed by
another private individual as a result of a motor vehicle accident, inter
alia, by providing an appropriate remedy to the victim.288
The Court stated in this respect that:
A plain reading of the relevant constitutional provision has a wide reach.
Section 12(1) confers the right to the security of the person and freedom from
violence on ‘everyone’. There is no cogent reason in logic or in law to limit the
remit of this provision by withholding the protection from victims of motor
vehicle accidents. When a person is injured or killed as a result of negligent
driving of a motor vehicle the victim’s right to security of the person is severely
compromised. The state, properly so, recognises that it bears the obligation to
respect, protect and promote the freedom from violence from any source.289

The same principles have been applied to other forms of violence,

including domestic violence,290 violence against train passenger
violence,291 and violence against children.292 The positive duty that
section 12(1)(c) imposes on the state played a prominent role in the
Constitutional Court’s judgment in Freedom of Religion South Africa v
Minister of Justice and Constitutional Development.293
In this case, a father was convicted in the Magistrates’ Court of
abusing his 13-year-old son by viciously kicking and punching him.
After being convicted, the father appealed unsuccessfully to the High
Court in Johannesburg. Besides dismissing the appeal, the High Court
also declared a parent’s common law right to administer reasonable
and moderate chastisement to his or her child to be unconstitutional.
The applicant, who had acted as an amicus curiae in the High Court,
then appealed against this part of the judgment to the Constitutional
Court.
The Constitutional Court dismissed the appeal largely on the ground
that the right to administer moderate and reasonable chastisement
unjustifiably infringed section 12(1)(c) of the Constitution. In arriving at
this decision, the Court had to determine, first, whether moderate and
reasonable chastisement fell into the meaning of the constitutional
concept of ‘violence’; and if it did, second, whether this moderate and
reasonable form of violence fell into the content and scope of section
12(1)(c).
In so far as the first issue was concerned, the Court held that in its
ordinary grammatical sense the word violence is defined very broadly
as ‘behaviour involving physical force intended to hurt, damage or kill
someone or something’ and that this ordinary meaning should be given
to the constitutional concept of violence as well. It followed, therefore,
that the constitutional concept of violence was not concerned with the
manner or extent of the application of force, but rather with the mere
exertion of force or the threat thereof.294 This meant that moderate or
reasonable chastisement did fall into the meaning of the constitutional
concept of violence.295
In so far as the second issue was concerned, the Court held that the
mischief sought to be addressed by section 12(1)(c) is not only certain
forms of violence, but ‘all forms’. The phrase ‘all forms’ is so all-
encompassing that it quite clearly does not exclude any form of
violence or any application of force to the body of another person from
its scope and ambit. This interpretation of the phrase ‘all forms’ is also
supported by the fact that section 12(1)(c) applies to both public and
private sources of violence and by the fact that the purpose of the
section is to reduce and hopefully eliminate South Africa’s shameful
history of widespread and institutionalised violence.296 The phrase ‘all
forms of violence’ thus includes moderate, reasonable and extreme
forms of violence.297
In light of these findings, the Court held that a parent’s right to
chastise his or her child, however moderate or reasonable, does meet
the threshold requirement of violence prohibited by section 12(1)(c)
and, thus infringed the right.298 Having found that the right to be free
from all forms of violence had been infringed, the Court turned to
consider whether this infringement could be justified in terms of the
limitation clause. It found that it could not largely on the grounds that
there are other less harmful means of achieving the same goals as
parental chastisement, for example educating children about ‘good
behaviour and the do’s and don’ts of life’.299 The Court thus declared the
right of moderate and reasonable chastisement to be unconstitutional
and invalid.

13.4.5 The right not to be treated or punished in a cruel,

inhuman or degrading manner
Section 12(1)(e) of the Constitution provides that everyone has the right
not to be treated or punished in a cruel, inhuman and degrading
manner. In S v Dodo,300 the Constitutional Court held that this right
must be interpreted disjunctively. It follows, therefore, that the right will
be infringed by a punishment if it displays any one of the three concepts
referred to in the right. Although it is not easy to distinguish between
the concepts of ‘cruel’, ‘inhuman’ and ‘degrading’, the Court held further,
the infringement of section 12(1)(e) always involves an impairment of
human dignity and usually the deprivation of freedom.301
When it comes to determining whether a punishment is cruel,
inhuman or degrading, the Court also held in S v Dodo,302 a court has to
determine whether the punishment is proportional to the offence that
has been committed.303 This is because the absence of a proportional
relationship between the punishment and the offence would
undermine the offender’s dignity by treating him or her as a commodity
to which a price can be attached, rather than as a person with inherent
and infinite worth. Human beings must be treated as ends in
themselves and not merely as a means to an end.304
For example, the Court held further, where a lengthy sentence is
imposed on an offender, not because the offence was serious enough to
warrant such a sentence, but rather to deter others from committing the
same offence, then the offender is essentially being treated as a means
to an end and his or her dignity is infringed. Exactly, the same point
may be made where a lengthy sentence is imposed, not because the
offence was serious enough to warrant such a sentence, but rather to
give the prison authorities sufficient time to reform the offender.305
Despite the fact that mere disproportionality between the offence
and the period of imprisonment would tend to treat the offender as a
means to an end, it is important to note, the Court concluded, that mere
disproportionality between the punishment and the offence is not
sufficient to infringe the right not to be punished in a cruel, inhuman
and degrading way. The right not to be punished in a cruel, inhuman
and degrading way will only be infringed is there is gross
disproportionality between the punishment and the offence.306
 The test for proportionality played a prominent role in the
Constitutional Court’s judgment in S v Niemand.307 In this case, the
accused was declared to be a habitual criminal in terms of section 286
of the Criminal Procedure Act308 and consequently was automatically
sentenced to an indefinite period of imprisonment in terms of section
65(4)(b)(iv) of the Correctional Services Act.309 After being declared a
habitual criminal, the accused appealed to the Constitutional Court. In
his appeal, the accused argued that the power to declare an offender to
be a habitual criminal and thus to be detained in prison for life
infringed section 12(1)(e) of the Constitution because it was cruel,
inhuman and degrading.
The Court agreed with the accused and upheld the appeal. In
arriving at its decision, the Court held that while life imprisonment for
crimes such as murder and rape may be proportionate to the heinous
nature of the crimes, the same cannot be said for a habitual criminal
who is neither violent nor a danger to society. Imposing a life sentence
on such a person is grossly disproportionate to the seriousness of the
offences and, therefore, constitutes a violation of section 12(1)(e) of the
Constitution. In addition, the imposition of a life sentence is also grossly
disproportionate to the purpose for which it is imposed, namely to
protect society against repeat offenders. Habitual offenders who have
committed relatively minor crimes do not pose a threat to society that
warrants life imprisonment.310

The death penalty

In S v Makwanyane,311 arguably the most widely known
and celebrated Constitutional Court judgment,312 the
Court partly relied on section 11(2) of the interim
Constitution (the forerunner of section 12(1)(e) of the
final Constitution) to declare the death penalty invalid.
Chaskalson P (as he then was) noted that the death
penalty was ‘the most extreme form of punishment’ to
which a convicted criminal could be subjected and
continued:
Its execution is final and irrevocable. It puts an end not only to
the right to life itself, but to all other personal rights which had
vested in the deceased under Chapter Three of the Constitution. It
leaves nothing except the memory in others of what has been and
the property that passes to the deceased’s heirs. In the ordinary
meaning of the words, the death sentence is undoubtedly a cruel
punishment. Once sentenced, the prisoner waits on death row in
the company of other prisoners under sentence of death, for the
processes of their appeals and the procedures for clemency to be
carried out. Throughout this period, those who remain on death
row are uncertain of their fate, not knowing whether they will
ultimately be reprieved or taken to the gallows. Death is a cruel
penalty and the legal processes which necessarily involve waiting
in uncertainty for the sentence to be set aside or carried out, add
to the cruelty … The question is not, however, whether the death
sentence is a cruel, inhuman or degrading punishment in the
ordinary meaning of these words but whether it is a cruel,
inhuman or degrading punishment within the meaning of section
11(2) of our Constitution.313

The Court answered this question in the affirmative,

relying, among other things, on the fact that the death
penalty was inherently applied in an arbitrary manner
to the detriment of individuals who belong to
marginalised and oppressed groups. The arbitrary
nature of the punishment was, however, not random as
‘poverty, race and chance play roles in the outcome of
capital cases and in the final decision as to who
should live and who should die’.314 Chaskalson P noted
that the arbitrary nature of conviction and punishment
also applied to other crimes, stating that:
The differences that exist between rich and poor, between good
and bad prosecutions, between good and bad defence, between
severe and lenient judges, between judges who favour capital
punishment and those who do not, and the subjective attitudes
that might be brought into play by factors such as race and class,
may in similar ways affect any case that comes before the courts,
and is almost certainly present to some degree in all court
systems.315
However, capital punishment was different, as a decision on whether to
impose it or not literally meant the difference between life and death.316
Capital punishment therefore limited the right against cruel inhuman
and degrading treatment and punishment in a manner not justified by
the limitation clause. The judgment raises but does not answer
questions about the possible injustice that results from non-capital
punishment cases where the conviction and punishment may also be
arbitrary, linked as it often is to race and class.

13.4.6 Bodily and psychological integrity

The right to bodily and psychological integrity guaranteed in section
12(2) of the Constitution should be viewed with reference to the
manner in which the law in the past has so often allowed for the
encroachment on (and regulation of ) particular types of bodies – the
bodies of women, gays and lesbians, intersex and transgender
individuals and black people (or a combination of the above) – and with
reference to the manner in which the psychological well-being of
certain individuals were fundamentally compromised – notably that of
gay men and lesbians. Because of deeply entrenched and systemic
sexism, homophobia, transphobia, and racism, the law has in the past
sought to impose restrictions on women’s right to use contraception, on
other reproductive choices, on the right to choose to have an abortion,
and on the right of individuals to secure hormonal and surgical
interventions to align their bodies with their desired gender
appearance.317 It has also permitted scientists to conduct harmful
‘scientific’ experiments, often on the bodies of black people.318
Furthermore, the psychological integrity of individuals who experience
same-sex sexual desire was severely compromised by, among others,
unethical and damaging ‘conversion therapy’ programmes ostensibly
aimed at ‘curing’ individuals of their sexual orientation.319

Bodily integrity versus privacy

 In some jurisdictions the right to bodily integrity is not
explicitly guaranteed, but rather protected – if
protected at all – under the right to privacy. However,
the protection of bodily integrity under the rubric of
privacy has long been criticised – especially as it
applies the women’s bodies – as reinforcing women’s
oppression, by signalling that women’s bodies and
sexuality was a shameful and ‘private’ matter. As one
commentator put it, ‘for women, privacy rhetoric all too
often lends itself to slut shaming and victim blaming
because women are assumed to be responsible for
making sure they do not reveal anything in the first
place’.320 It has also been argued that the use of the
right to privacy may reinforce the belief that that which
is being protected is shameful and in need of being
kept secret.321 It is therefore not surprising that the
drafters of the South African Constitution elected to
include a guarantee of bodily and psychological
integrity in section 12(2) of the Bill of Rights. The latter
right speaks more directly to the harm caused by a
lack of respect for the right to bodily and psychological
integrity and provides more extensive protection, as a
litigant would not be required to show that the
limitation of their rights is a private matter.

It is important to understand the difference between section 12(1) and

section 12(2). The former speaks specifically of ‘the right to freedom
and security of the person’, which, as explained above, principally
provides procedural and substantive protection for any deprivation of
physical liberty.322 The five dimensions of the right listed in section 12(1)
deal with unwarranted incursions into the physical domain of
individuals. As the Constitutional Court noted, ‘the need for protection
against these harms is grounded in our history; violence and physical
deprivation of liberty was a regular feature of everyday life for many
people’.323 Section 12(2) is also concerned with whether a law or conduct
deprives a person of freedom or security, but must be more broadly
understood than the guarantee contained in section 12(1).324 Taking
note of the drafting history of section 12, the minority judgment of the
Constitutional Court in AB and Another v Minister of Social
Development explains that section 12(2) was only included in the text at
a late stage. This change in language, noted the Court, illustrates a shift
in emphasis away from a ‘sanctuary approach’ that narrowly protects a
person’s corpus, towards one which acknowledges the multifaceted
lives people may choose to live by providing for a more expansive range
of bodily and psychological protections.
This adjustment in focus coheres with the lessons of our past. The defilements
of integrity that characterised our pre-constitutional era extended beyond
violations of personal security. The legal structure that marked and marred the
apartheid era was one of disregard and disrespect. The Constitution thus
enjoins us to develop a new understanding of ‘freedom and security of the
person’ that demonstrates respect and attentiveness to the decisions of others.
The inclusion of section 12(2) is one facet of this new approach.325

Understood thus, section 12(2) is concerned more broadly with

individual autonomy, and thus with the right to make free and informed
choices about one’s body and one’s psychological well-being.326 The
Constitutional Court follows a purposive approach when interpreting
section 12(2) by looking at the right in its broader constitutional context
and situating it within our particular historical condition. When we
discuss women’s reproductive rights below, this context becomes
particularly relevant. When restrictions are placed on what decisions a
person is permitted to make about their own body, or a person is stifled
in making other important decisions about their life – such as whether
they wish to disclose an illness or not – section 12(2) is implicated.327
Section 12(2) thus helps to give effect to the principle that the agency of
each individual should be protected. It is concerned with the integrity
of each person, affirming the equal worth of all individuals regardless of
bodily or other differences. At the very least, section 12(2) recognises
that each physical body is of equal worth and is entitled to equal
respect.328 But when read with section 7(2) of the Constitution, it
becomes clear that the right requires more than mere tolerance of
diverse bodies and states of mind, but instead places a positive duty on
the state to ensure that everybody is able to participate fully in
society.329 Because of the history of discrimination against certain types
of bodies, this means that the section imposes an obligation on the state
to ensure that the ability of some individuals fully to participate in
society is not hampered by so-called ‘neutral’ laws that have a disparate
impact on specific groups of individuals. Section 12(2) would be
applicable in many different situations, but below we focus on a
selected number of such situations where the right is implicated.

Women’s bodily integrity and patriarchy

The right to bodily and psychological integrity responds
in quite a direct and acute way to the manner in which
the agency of members of a marginalised or oppressed
group to make decisions about their own bodies were
drastically curtailed. While anyone’s bodily and
psychological integrity could be infringed, regardless of
their identity or socio-economic status, the
infringement is more likely, and the harm more likely to
be severe, when one is already vulnerable. In this
regard, women’s bodily integrity is of particular concern
because of the way in which patriarchal structures and
attitudes facilitate the control of women’s bodies by
men. This control of women’s sexuality, and lack of
respect for their autonomy and self-determination over
their bodies, continues to have detrimental
consequences. Women, in particular young women in
sub-Saharan Africa, carry the heavy burden of the HIV
epidemic due to persistent gender inequality and
harmful gender dynamics.330
It is true that limitations on the right could be
imposed by legislation – as is the case in jurisdictions
 where a woman’s right to choose an abortion is
prohibited and even criminalised – and in apartheid
South Africa legislation was a major instrument to limit
the bodily and psychological integrity of individuals.
However, as far as the bodily integrity of women is
concerned, it is important to note that, as a result of
the patriarchal nature of society, breaches of this right
go far beyond legislative provisions. Structural and
systemic factors which created (and which continue to
prop up) patriarchy, homophobia and transphobia, and
white supremacy all leave some groups more
vulnerable than others. Therefore, the mere fact that
section 12(2) now guarantees bodily and
psychological integrity for everyone does not mean
that, in fact, individuals are now all able fully to
exercise this right fully. In the context of the protection
of women’s bodily integrity, many women do not fully
enjoy security and control over their own bodies. The
extremely high rate of gender-based violence in South
Africa is testimony to this fact.331 The Constitutional
Court has acknowledged in this regard that spousal
abuse and domestic violence ‘is a pervasive and
frequently hidden problem that challenges society at
every level’ and that domestic violence is ‘systematic,
pervasive and overwhelmingly gender-specific’.332

13.4.6.1 Termination of pregnancy

Before 1996, termination of pregnancy was prohibited in South Africa,
with the exception of situations where it was medically indicated for a
woman (the presence of physiological or mental health indicators
adjudicated by medical practitioners) or foetus (a serious risk of
physical or mental defect), or in circumstances of non-consensual sex,
called rape or incest.333 The justification advanced for this prohibition
was paternalistic and, in the case of black women, racist. As Albertyn
notes, abortion was only available to women who did not ‘choose’ to fall
pregnant or whose life was endangered through no fault of her own
because such women were seen as ‘morally blameless’:
Women who ‘chose’ to fall pregnant by having sex outside of marriage, were
not eligible for abortions and should ‘live with the consequences’. Overall,
women were seen to lack the moral authority to act autonomously in their own
sexual lives, and were left alone to make a decision on abortion, which was
decided by male law-makers and medical practitioners. Abortion was limited
and regulated with due regard to the interests of doctors, foetuses and
conservative morals. Women – and their choices – were incidental to the
process. Black women’s choices were even more irrelevant as members of the
ruling party, making it clear that offering abortion to ‘promiscuous’ black
women would be an unnecessary drain on state resources.334

In 1996, Parliament passed the Choice on Termination of Pregnancy

Act,335 which now permits termination of pregnancy on request until 12
weeks into a pregnancy. However, the Act also imposes limits on the
circumstances in which a termination could be effected. After 12 weeks
of gestation, the foetus may still be terminated – but only in limited
circumstances - up to 20 weeks. After 20 weeks, termination is
permitted only if there is a risk of injury or death.336 The Constitutional
Court has not yet been asked to rule on constitutional validity of the
provisions in this Act, but two High Court judgments have rejected
statutory challenges to the Choice on Termination of Pregnancy Act.337
Importantly, in Christian Lawyers II the High Court explicitly linked
section 12(2)(a) and (b) to a woman’s right to determine the fate of her
pregnancy, stating that:
The specific provisions of section 12(2)(a) and (b) of our Constitution
guarantee the right of every woman to determine the fate of her pregnancy. The
Constitution of this country in explicit language affords ‘everyone’ the right to
bodily integrity including the right ‘to make decisions concerning
reproduction’ and to security in and control over their body.’ This is quite
clearly the right to choose whether to have her pregnancy terminated or not,
for short, the right to termination of pregnancy. Her freedom of choice
protected under the explicit provisions of section 12(2)(a) and (b) is moreover
reinforced by … the right to equality and protection against discrimination on
the ground of gender, sex and pregnancy.338
The Constitutional Court quoted this passage with approval in AB,339
noting that right relating to reproductive autonomy in section 12(2)(a)
‘confronts directly the fact that many women do not enjoy security in
and control over their own bodies’.340 This means that the Choice on
Termination of Pregnancy Act must be read as giving effect to the right
to make decisions about reproduction guaranteed in section 12(2). The
limitations imposed on the circumstances in which a woman could
legally terminate a pregnancy, therefore, imposes limitations on section
12(2)(a) of the Constitution, and any challenge to these limitations
would therefore have to be tested against section 36(1) to determine
whether the limitations are reasonable and justifiable.

13.5 The right to privacy

13.5.1 Introduction
One of the most notorious legislative provisions in place during the
apartheid era was section 16 of the Immorality Act.341 This section
criminalised all extramarital sexual relations between a white male and
a black (broadly defined) female, and vice versa. (Interracial marriages
were prohibited by the Prohibition of Mixed Marriages Act.342) The
Immorality Act authorised police officers to invade people’s private
homes in order to catch couples in the act of breaking this law, thus
infringing on their privacy. The playwright Athol Fugard wrote a play,
which opened in 1972, entitled Statements After an Arrest Under the
Immorality Act, to dramatise the absurdity, the heartache and the pain
caused by this provision. A short summary of the play illustrates the
effects of section 16:
Set in apartheid South Africa, where relationships across the colour bar were a
criminal offence, two lovers – a black man and white woman meet secretly in
the library where the woman works to make love and share their hopes and
fears. An observant neighbour reports them to the police who secretly
photograph them from the informant’s backyard and eventually break in and
arrest the couple under the then inhuman and universally pilloried Immorality
Act. The play is a compelling and deeply moving love story in which the
 physically and emotionally naked lovers expose not only their bodies but also
their deepest longings for personal and emotional freedom.343

Given this history, it is no surprise that section 14 of the Constitution

provides that ‘[e]veryone has the right to privacy’, which includes the
right not to have their person or home searched; their property
searched; their possessions seized; or the privacy of their
communications infringed. Section 14 therefore contains a general right
to privacy as well as specifically enumerated infringements of privacy.344
These enumerated areas of protection form part of the general right to
privacy, but this not a closed list, which means the right to privacy may
extend beyond the areas enumerated in section 14.

13.5.2 Scope and content of the right to privacy

Privacy recognises that we all have a right to a sphere of private
intimacy and autonomy. By protecting this private and intimate sphere,
we are allowed ‘to establish and nurture human relationships without
interference from the outside community’.345 The right to privacy can be
said to be a right to be left alone,346 to live a life with a minimum of
interference by the state and other private parties. At its core it concerns
private, family and home life, physical and moral integrity, and honour
and reputation.347 The Constitutional Court stated in Bernstein v Bester
that the scope of a person’s privacy extends only to those aspects ‘in
regard to which a legitimate expectation of privacy can be harboured’.348
There are two distinct components to this expectation: first, ‘a
subjective expectation of privacy’ and second, an expectation that the
society has recognised as ‘objectively reasonable’.349 A person cannot
have a subjective expectation of privacy in cases where he or she has
willingly consented to waive that privacy.350 The second component
does not focus on the subjective expectations of the claimant based on
his or her explicit or implicit consent to waive his or her privacy. Rather,
the second component focuses on whether the person claiming that his
or her privacy was infringed could reasonably expect his or her privacy
to be protected in the particular circumstances.
 The decision whether, reasonably speaking, a person has a
legitimate expectation to privacy may depend at least partly on whether
the interference was of the ‘inner sanctum’ of personhood or not. As the
Constitutional Court pointed out in Bernstein and Others v Bester NO
and Others:
The truism that no right is to be considered absolute, implies that from the
outset of interpretation each right is always already limited by every other right
accruing to another citizen. In the context of privacy this would mean that it is
only the inner sanctum of a person, such as his/her family life, sexual
preference and home environment, which is shielded from erosion by
conflicting rights of the community. This implies that community rights and
the rights of fellow members place a corresponding obligation on a citizen,
thereby shaping the abstract notion of individualism towards identifying a
concrete member of civil society. Privacy is acknowledged in the truly personal
realm, but as a person moves into communal relations and activities such as
business and social interaction, the scope of personal space shrinks
accordingly.351

The effect of this view regarding privacy is that in the ‘inner sanctum’ of
a person’s life, in his or her ‘truly personal realm’ like his or her home or
bedroom, there would be a far greater likelihood that a person’s
expectation of having his or her privacy respected is reasonable. Privacy
is therefore viewed as a continuum with more intense protection at its
core and less intense protection on the periphery. Privacy becomes
more intense the closer it moves to the intimate personal sphere of life
of human beings and less intense as it moves away from that core.352
Privacy and dignity, therefore, are closely related.353 This is so because
where a person’s privacy is breached, that person will often not be
treated with concern and respect.
There is a range of factors relevant to distinguishing the core of
privacy from its penumbra. One of the considerations is the nature of
the relationship concerned. For example, in Jordan, the minority
judgment of the Constitutional Court found with regard to the
regulation of sex work that:
One of the considerations is the nature of the relationship concerned: an
invasion of the relationship between partners, or parent and child, or other
intimate, meaningful and intensely personal relationships will be a strong
indication of a violation close to the core of privacy.354
Following this reasoning, the minority in the Jordan case concluded
that the commercial nature of the conduct under consideration
removed it from the inner sanctum of privacy. The majority in this case,
controversially, came to the same conclusion, holding that if the right to
privacy is implicated at all in a case where sex work is regulated, ‘it lies
at the periphery and not at its inner core’.355
For the same reason the Constitutional Court found in Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty)
Ltd and Others v Smit NO and Others356 that the privacy rights of a
juristic person would be less intense than those of a human being.
Although juristic persons like big companies also enjoy the protection
of the privacy right, this protection would be weaker than for an
ordinary human being:
As we have seen, privacy is a right which becomes more intense the closer it
moves to the intimate personal sphere of the life of human beings, and less
intense as it moves away from that core. This understanding of the right flows,
as was said in Bernstein, from the value placed on human dignity by the
Constitution. Juristic persons are not the bearers of human dignity. Their
privacy rights, therefore, can never be as intense as those of human beings.
However, this does not mean that juristic persons are not protected by the right
to privacy. Exclusion of juristic persons would lead to the possibility of grave
violations of privacy in our society, with serious implications for the conduct of
affairs. The state might, for instance, have free licence to search and seize
material from any non-profit organisation or corporate entity at will. This
would obviously lead to grave disruptions and would undermine the very fabric
of our democratic state. Juristic persons therefore do enjoy the right to privacy,
although not to the same extent as natural persons. The level of justification for
any particular limitation of the right will have to be judged in the light of the
circumstances of each case. Relevant circumstances would include whether
the subject of the limitation is a natural person or a juristic person as well as
the nature and effect of the invasion of privacy.357

13.5.3 Privacy regarding sexual intimacy

Few aspects of a person’s life can be said to be more intimate and
private than his or her consensual sexual conduct conducted in private.
The way in which we give expression to our sexuality, therefore, is at the
core of the protection afforded by the right to private intimacy.358
Whenever a person expresses his or her sexuality consensually and
without harming another, invasion of that precinct will be a breach of
that person’s privacy.359 Where legislation aims to regulate consensual
adult sexual intimacy, therefore, it will strike at the heart of the right to
privacy. However, it has been argued that where such regulation
discriminates against a targeted group – like gay men, lesbians and
transgendered individuals – it would be inappropriate to invoke the
right to privacy instead of the right against non-discrimination, as this
would not capture the true obnoxious nature of the discrimination. As
Cameron has previously argued in the context of the regulation of
same-sex sexual desire:
[T]he privacy argument has detrimental effects on the search for a society
which is truly non-stigmatizing as far as sexual orientation is concerned. On
the one hand, the privacy argument suggests that discrimination against gays
and lesbians is confined to prohibiting conduct between adults in the privacy
of the bedroom. This is manifestly not so. On the other hand, the privacy
argument may subtly reinforce the idea that homosexual intimacy is shameful
or improper: that it is tolerable so long as it is confined to the bedroom — but
that its implications cannot be countenanced outside. Privacy as a rationale for
constitutional protection therefore goes insufficiently far, and has appreciable
drawbacks even on its own terms.360

However, in National Coalition for Gay and Lesbian Equality v Minister

of Justice, the Constitutional Court rejected this argument. The Court
pointed out that rights should not be construed absolutely or
individualistically in ways which denied that all individuals are
members of a broader community and are defined in significant ways
by that membership.361 The regulation of sexual conduct can infringe
both the right to equality and the right to privacy. Emphasising the
breach of both these rights could highlight ‘just how egregious the
invasion of the constitutional rights’ is. When recognising the breach of
privacy in such a setting, it can strengthen the conclusion that the
discrimination inherent in the breach of privacy also constitutes unfair
discrimination.362
In Teddy Bear Clinic, the Constitutional Court affirmed that the right
to privacy in sexual matters is not only enjoyed by adults but also by
adolescents. Where legislation criminalises the consensual sexual
conduct of adolescents, it applies to the most ‘intimate sphere of
personal relationships and therefore inevitably implicate[s] the
constitutional right to privacy’.363 ‘The offences allow police officers,
prosecutors and judicial officers to scrutinise and assume control of the
intimate relationships of adolescents, thereby intruding into a deeply
personal realm of their lives.’364

13.5.4 Privacy and the possession and use of cannabis

(dagga)
In Minister of Justice and Constitutional Development and Others v
Prince (Clarke and Others Intervening); National Director of Public
Prosecutions and Others v Rubin; National Director of Public
Prosecutions and Others v Acton,365 the Constitutional Court held that
the prohibition on the use, cultivation and possession of cannabis in
private by adults for personal consumption infringed on the right to
privacy. Although the Court did not explicitly say so, the judgment
suggests that the prohibition on the use, cultivation and possession of
recreational drugs like cannabis, strikes at the inner sanctum of
privacy366 and thus limits the right to privacy. The right to privacy, as
noted above, is at heart a right to be left alone, and when the state
criminalises the use, possession and cultivation of cannabis by
consenting adults in private it strikes at the heart of the right to privacy.
This does not mean that no interference in the inner sanctum of privacy
is permitted as such an interference may still be found to be justifiable
in terms of the section 36(1) limitation clause. The Court in this case
held that the blanket prohibition on the use, possession and cultivation
of cannabis was not a justifiable limitation on the right to privacy,
noting that there are now many democratic societies based on freedom,
equality and human dignity that have either legalised or decriminalised
the possession of cannabis in small quantities for personal
consumption.367 The evidence provided by the state about the harmful
effects of cannabis was also found wanting.368 The effect of this
judgment is that it is no longer a criminal offence for an adult to
cultivate, possess and use cannabis in private for personal
consumption. The use or possession or cultivation of cannabis need not
be at a home or in a private dwelling to be considered ‘private’.369
Carrying a small amount of cannabis in your pocket for personal use,
therefore, will no longer be a criminal offence. In discussing the
cultivation of cannabis in private the Court said:
The issue of the cultivation of cannabis in private by an adult for personal
consumption in private should not be dealt with on the basis that the
cultivation must be in a dwelling or private dwelling. It should be dealt with
simply on the basis that the cultivation of cannabis by an adult must be in a
private place and the cannabis so cultivated must be for that adult person’s
personal consumption in private. An example of cultivation of cannabis in a
private place is the garden of one’s residence. It may or may not be that it can
also be grown inside an enclosure or a room under certain circumstances. It
may also be that one may cultivate it in a place other than in one’s garden if
that place can be said to be a private place.370

However, the provisions that prohibit the purchase and selling of

cannabis remain – it is still a criminal offence. The Court held that it was
unable to sanction dealing in cannabis because ‘[d]ealing in cannabis is
a serious problem in this country and the prohibition of dealing in
cannabis is a justifiable limitation of the right to privacy’.371

SUMMARY

This chapter deals with the right to equality and the right to dignity.
Section 9 of the Constitution guarantees the right to equality. A litigant
invokes section 9 in cases where he or she wishes to attack the
constitutionality of a legislative provision because the litigant believes
that the provision impermissibly differentiates between people or
groups of people. The courts rely on section 9(1), section 9(2) or section
9(3), depending on the nature of the differentiation complained of, to
decide the case.
The courts rely on section 9(1) where a legislative provision
differentiates between groups of people on grounds other than those
listed in section 9(3) or analogous to those listed in section 9(3). This so-
called mere differentiation includes the many distinctions made in
legislation that are not related to the personal attributes and
characteristics of groups of people. A section 9(1) challenge has to be
based on the question of whether the differentiation (mere
differentiation) was rational or arbitrary.
The courts rely on section 9(2) where the legislative provision being
challenged differentiates between groups of people on one of the
grounds listed in section 9(3) or on grounds analogous to those listed in
this section, for example race, sex or sexual orientation. However, in this
case, the legislation differentiates between groups of people with the
aim of correcting the effects of past unfair discrimination (affirmative
action). When testing an affirmative action provision against section
9(2), the court asks:
• whether the affirmative action scheme devised by the legislature
targets a group who was unfairly discriminated against in the past
• whether the scheme is designed to achieve its redress goal, in other
words, whether it is reasonably capable of doing so
• whether the scheme will achieve the long-term goal of equality,
which would not be the case if the scheme gratuitously and
flagrantly imposes disproportionate burdens on the excluded group.

Section 9(3) deals with unfair discrimination. This is discrimination on

one or more of the grounds listed in that section or analogous to those
grounds, but only when the differentiation was not done with the aim of
implementing an affirmative action policy. When deciding whether
discrimination is fair or unfair for purposes of section 9(3), the court
follows a contextual approach. This means that the court considers:
• whether the complainant belongs to a group previously
discriminated against
• whether the discrimination pursues an important purpose
• how severe the impact of the discrimination is on the group.

The courts must deal with allegations of discrimination by private

individuals, public officials or institutions, in other words, allegations of
non-statutory forms of discrimination, in terms of the Promotion of
Equality and Prevention of Unfair Discrimination Act (PEPUDA). The
PEPUDA was passed in accordance with section 9(4) of the Constitution
to ensure the horizontal application of the prohibition on
discrimination. When applying the provisions of the PEPUDA, the
concept of reasonable accommodation is important but not always
decisive. The PEPUDA requires a court to consider many of the same
considerations relevant to a section 9(2) or a section 9(3) enquiry, as
well as considerations relevant to a limitations clause enquiry in terms
of section 36, when it decides whether the discrimination is fair or
unfair.
Section 10 of the Constitution protects the right to dignity. The right
to dignity must be distinguished from the value of dignity that
permeates the Constitution and underlies the interpretation of many, if
not all, the other rights in the Bill of Rights. The courts usually rely on
the right to dignity if the dignity interest is not adequately protected by
any of the other rights in the Bill of Rights.
Section 14 of the Constitution protects the right to privacy. This right
is viewed as having a core which is more rigorously protected than its
penumbra. While both individuals and juristic persons can rely on this
right, the level of protection will differ depending on the nature of the
situation. Courts ask whether privacy protection could reasonably be
expected, given the nature of the relationship that is being protected. In
this schema, it goes without saying that consensual intimate sexual
relationships go to the heart of the right to privacy.

1 See S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665
(CC) (6 June 1995) para 329; Teddy Bear Clinic for Abused Children and Another v Minister
of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35; 2014
(2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) (3 October 2013) para 52; Freedom of Religion
South Africa v Minister of Justice and Constitutional Development and Others (CCT320/17)
[2019] ZACC 34; 2020 (1) SA 1 (CC); 2019 (11) BCLR 1321 (CC) (18 September 2019) para
45. See also Gelyke Kanse and Others v Chairperson of the Senate of the University of
Stellenbosch and Others (CCT 311/17) [2019] ZACC 38; 2020 (1) SA 368 (CC); 2019 (12)
BCLR 1479 (CC) (10 October 2019) para 63 where the Constitutional Court refers to the
‘dignity-restoring and enhancing aspirational measures’ embodied in the Constitution.
2 See Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 250.
3 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (7 June 2000)
para 35.
4 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (9
October 1998) para 120.
5 Dawood para 35.
6 Dawood para 35.
7 For an admirable book-length attempt to do so, see Ackermann, L (2012) Human Dignity:
Lodestar for Equality in South Africa.
8 Teddy Bear Clinic para 52. See also Khumalo and Others v Holomisa (CCT53/01) [2002]
ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) (14 June 2002) para 27. See also
Cameron, E (2014) ‘Dignity and disgrace: Moral citizenship and constitutional protection’
in Corder, H, Federico, V and Orrù, R (eds) The Quest for Constitutionalism: South Africa
since 1994 101.
9 Liebenberg, S (2005) The value of human dignity in interpreting socio-economic rights
South African Journal on Human Rights 21(1):7.
10 Nussbaum, MC Women and Human Development: The Capabilities Approach (2000) 72.
11 Liebenberg (2005) 7.
12 See Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1998 (2) SA
38 (CC); 1997 (12) BCLR 1675 (CC) (2 December 1997) para 23.
13 Mokgoro, JY (1998) Ubuntu and the law in South Africa Potchefstroom Electronic Law
Journal 1(1):1.
14 Mokgoro (1998) 1.
15 Kunene, M (1995, 16 August) The Essence of being Human: An African Perspective,
inaugural lecture delivered at the University of Natal (as yet unpublished).
16 Kunene (1995) 2.
17 This is starting to change and several scholars have developed arguments in favour of
embedding rights discourse within a social solidarity model. See Douwes, R, Stuttaford, M
and London, L (2018) Social solidarity, human rights, and collective action: Considerations
in the implementation of the national health insurance in South Africa Health and Human
Rights Journal 20(2):185–96.
18 Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752
(CC) (15 May 1996) para 40.
19 Langa, P (2006) Transformative constitutionalism Stellenbosch Law Review 17(3):351–60 at
352–3. See also Albertyn, C and Goldblatt, B ‘Equality’ in Woolman, S and Bishop, M (eds)
(2013) Constitutional Law of South Africa 2nd ed rev service 5 35.5.
20 Currie and De Waal (2013) 213.
21 See De Vos, P (2000) Equality for all? A critical analysis of the equality jurisprudence of the
Constitutional Court Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(1):62–75 at 65;
Albertyn and Goldblatt (2013) 35.6.
22 De Vos (2000) 65.
23 Albertyn and Goldblatt (2013) 35.6. See also Albertyn, C and Goldblatt, B (1998) Facing the
challenge of transformation: Difficulties in the development of an indigenous
jurisprudence of equality South African Journal on Human Rights 14(2):248–76 at 152–3.
24 National Coalition for Gay and Lesbian Equality v Minister of Justice para 60.
25 (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC); (29 July 2004)
para 27. See also Brink para 40; President of the Republic of South Africa and Another v
Hugo (CCT11/96) [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (18 April
 1997) para 41; Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (3) SA
1012 (CC); 1997 (6) BCLR 759 (CC) (18 April 1997) para 31; City Council of Pretoria v Walker
(CCT8/97) [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) (17 February 1998)
para 46; Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1 (CC);
2000 (11) BCLR 1211 (CC); (28 September 2000); South African Police Service v Solidarity
obo Barnard (CCT 01/14) [2014] ZACC 23; 2014 (6) SA 123 (CC); 2014 (10) BCLR 1195 (CC);
(2 September 2014) paras 29–35.
26 Brink para 40. See also Walker para 26 where Langa DP stated that the assessment of
discrimination cannot be undertaken in a vacuum, ‘but should be based both on the
wording of the section and in the constitutional and historical context of the developments
in South Africa’.
27 Brink para 41.
28 Brink para 41.
29 See, for example, Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1998 (1) SA
300 (CC); 1997 (11) BCLR 1489 (CC) (7 October 1997) para 51(b).
30 See De Vos (2000) 66.
31 Botha, H (2009) Equality, plurality and structural power South African Journal on Human
Rights 25(1):1–37 at 7.
32 For a real-life example, see Kassiem, A (2006, 26 June) Guest houses ‘can be for gay men
only’ Independent Online available at http://www.iol.co.za/news/south-africa/guest-
houses-can-be-for-gay-men-only-1.283071.
33 Act 4 of 2000.
34 Prinsloo para 23.
35 Prinsloo para 24.
36 Phaahla v Minister of Justice and Correctional Services and Another (Tlhakanye
Intervening) (CCT44/18) [2019] ZACC 18; 2019 (2) SACR 88 (CC); 2019 (7) BCLR 795 (CC) (3
May 2019) para 46.
37 Brink; Prinsloo; Hugo; Harksen; Larbi-Odam and Others v Member of the Executive Council
for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1998 (1) SA
745 (CC); 1997 (12) BCLR 1655 (CC) (26 November 1997); Walker; National Coalition for
Gay and Lesbian Equality v Minister of Justice; Hoffmann; Moseneke and Others v Master of
the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) SA 18 (CC); 2001 (2) BCLR 103 (CC) (6
December 2000); Satchwell v President of Republic of South Africa and Another (CCT45/01)
[2002] ZACC 18; 2002 (6) SA 1 (CC); 2002 (9) BCLR 986 (CC) (25 July 2002); J and Another v
Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003
(5) SA 621 (CC); 2003 (5) BCLR 463 (CC) (28 March 2003); Du Toit and Another v Minister of
Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2003 (2) SA
198 (CC); 2002 (10) BCLR 1006 (CC) (10 September 2002); Bhe and Others v Khayelitsha
Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1
(CC) (15 October 2004); Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005
(5) BCLR 446 (CC) (21 February 2005); Minister of Home Affairs and Another v Fourie and
Another (CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) (1
December 2005); Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97
(CC); 2007 (3) BCLR 249 (CC) (23 November 2006). See also Pretorius, JL (2010) Fairness in
transformation: A critique of the Constitutional Court’s affirmative action jurisprudence
South African Journal on Human Rights 26(3):536–70.
 See generally Fagan, A (1998) Dignity and unfair discrimination: A value misplaced and a
38 right misunderstood South African Journal on Human Rights 14(2):220–47 at 220; and
Westen, P (1982) The empty idea of equality Harvard Law Review 95(3):537–96 at 537.
39 National Coalition for Gay and Lesbian Equality v Minister of Justice para 122.
40 De Vos (2000) 64.
41 (CCT11/96) [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (18 April 1997).
42 Hugo para 41.
43 Hugo para 41. See also Albertyn and Goldblatt (1998) 257.
44 See Woolman, S ‘Dignity’ in Woolman and Bishop (2013) 36.3.
45 Government of the Republic of South Africa and Others v Grootboom and Others
(CCT11/00) [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (4 October
2000) para 23.
46 Grootboom para 25.
47 Hugo para 41; Prinsloo paras 31–3; Harksen para 50.
48 (CCT4/96) [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) (18 April 1997).
49 Prinsloo para 33. See also Harksen para 50: ‘Whether or not there is discrimination will
depend upon whether, objectively, the ground is based on attributes and characteristics
which have the potential to impair the fundamental human dignity of persons as human
beings or to affect them adversely in a comparably serious manner.’
50 Malherbe, R (2007) Some thoughts on unity, diversity and human dignity in the new South
Africa Tydskrif vir die Suid Afrikaanse Reg/Journal of South African Law 70(1):127–33 at
132.
51 Albertyn and Goldblatt (1998) 256–60.
52 Botha (2009) 8.
53 Botha (2009) 9.
54 Albertyn and Goldblatt (2013) 35.10. See, for example, Grootboom para 23.
55 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4
March 2004).
56 Khosa para 74.
57 Van Heerden para 25.
58 Van Heerden para 31.
59 There is some dispute about this, and the Constitutional Court has not clarified the matter.
See Albertyn, C (2018) Getting it right in equality cases. The evaluation of positive
measures, groups and subsidiarity in Solidariteit v Minister of Basic Education South
African Law Journal 135(3):405 at 416.
60 South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007]
ZACC 10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC); (30 May 2007) paras 51–2; MEC for
Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474
(CC); 2008 (2) BCLR 99 (CC) (5 October 2007) paras 39–40; Walele v City of Cape Town and
Others (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13
June 2008) paras 29–30; Nokotyana and Others v Ekurhuleni Metropolitan Municipality and
Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009) paras 47–
9; De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being
and Another (CCT223/14) [2015] ZACC 35; 2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC) (24
November 2015) para 53; My Vote Counts NPC v Speaker of the National Assembly and
Others (CCT121/14) [2015] ZACC 31 (30 September 2015) para 161. See also Van der Walt,
 AJ (2008) Normative pluralism and anarchy: Reflections on the 2007 term Constitutional
Court Review 1:77–128 at 100–03.
61 My Vote Counts para 160 (footnotes omitted).
62 Prinsloo para 25.
63 Prinsloo paras 23–4.
64 Van Heerden para 33.
65 National Coalition for Gay and Lesbian Equality v Minister of Justice para 18.
66 Prinsloo para 22.
67 Act 55 of 1998.
68 Van Der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4; 2002 (4) SA 317 (CC);
2002 (5) BCLR 454 (CC) (11 April 2002) para 24; Phaahla v Minister of Justice and
Correctional Services and Another (Tlhakanye Intervening) (CCT44/18) [2019] ZACC 18;
2019 (2) SACR 88 (CC); 2019 (7) BCLR 795 (CC) (3 May 2019) para 46.
69 Prinsloo para 22, quoting, in part, Didcott in S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1)
SA 1207 (CC); 1996 (1) BCLR 141 (CC) (8 December 1995) para 18. See also Walker para 27.
70 Prinsloo para 25 and Walker para 27.
71 Prinsloo para 25.
72 Prinsloo para 25; Herbert N.O. and Others v Senqu Municipality and Others (CCT 308/18)
[2019] ZACC 31; 2019 (6) SA 231 (CC); 2019 (11) BCLR 1343 (CC) (22 August 2019) para 30.
73 (CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC) (4 June 2015)
para 51.
74 See Mendes, E ‘The crucible of the Charter’ in Beaudoin, GA and Mendes, E (eds) (1996)
The Canadian Charter of Rights and Freedoms 3.20; Tribe, LH (1988) American
Constitutional Law 2nd ed 1442–3.
75 Prinsloo para 35.
76 Harksen para 43.
77 Prinsloo paras 24–6.
78 Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA
230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006) para 33. See also Jooste v Score
Supermarket Trading (Pty) Ltd (Minister of Labour intervening) (CCT15/98) [1998] ZACC
18; 1999 (2) SA 1 (CC); 1999 (2) BCLR 139 (CC) (27 November 1998).
79 In Jooste para 16 the Constitutional Court explained this as follows:
It is clear that the only purpose of rationality review is an inquiry into whether the
differentiation is arbitrary or irrational, or manifests naked preference and it is
irrelevant to this inquiry whether the scheme chosen by the legislature could be
improved in one respect or another. Whether an employee ought to have retained
the common law right to claim damages, either over and above or as an alternative
to the advantages conferred by the Compensation Act, represents a highly
debatable, controversial and complex matter of policy. It involves a policy choice
which the legislature and not a court must make. The contention represents an
invitation to this Court to make a policy choice under the guise of rationality review;
an invitation which is firmly declined.
80 (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013). See also Sarrahwitz v
Martiz N.O. and Another (CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR
925 (CC) (4 June 2015).
81 Act 44 of 1958.
82 Ngewu para 17.
83 Brink para 42. See generally Walker.
84 Van Heerden para 27.
85 Van Heerden para 25.
86 Minister of Constitutional Development and Another v South African Restructuring and
Insolvency Practitioners Association and Others (CCT13/17) [2018] ZACC 20; 2018 (5) SA
349 (CC); 2018 (9) BCLR 1099 (CC) (5 July 2018) para 1.
87 See the debate on the nature of these measures in Currie and De Waal (2013) 241–2; Gutto,
S (2001) Equality and Non-Discrimination in South Africa: The Political Economy of Law
and Law Making 204–5. See also Du Plessis, L and Corder, H (1994) Understanding South
Africa’s Transitional Bill of Rights 144–5; Pretorius, JL (2001) Constitutional standards for
affirmative action in South Africa: A comparative overview Heidelberg Journal of
International Law 61(8):403–57 at 403; Van Reenen, TP (1997) Equality, discrimination and
affirmative action: An analysis of section 9 of the Constitution of the Republic of South
Africa SA Publiekreg/Public Law 12(1):151–65 at 151; Dupper, O (2004) In defence of
affirmative action South African Law Journal 121(1):187–215; Dupper, O, MacEwan, M and
Louw, A (2006) Employment equity in the tertiary sector in the Western Cape International
Journal of Discrimination and the Law 8(3):191–212; De Vos, P (2012) The past is
unpredictable: Race, redress and remembrance in the South African Constitution South
African Law Journal 129(1):73–103; Albertyn, CH (2015) Adjudicating affirmative action
within a normative framework of substantive equality and the employment equity act – An
opportunity missed? South African Police Service v Solidarity obo Barnard South African
Law Journal 132(4):711; Gaibie, S (2015) The Constitutional Court decision in Barnard: A
sequel to the Van Heerden judgment Industrial Law Journal 36(1):80.
88 Van Heerden para 73.
89 Van Heerden para 75.
90 Van Heerden para 24.
91 Van Heerden para 31.
92 Van Heerden para 33.
93 Van Heerden paras 34–5.
94 Act 55 of 1998. On the interpretation of this Act, see Solidarity and Others v Department of
Correctional Services and Others (CCT 78/15) [2016] ZACC 18; 2016 (5) SA 594 (CC); 2016
(10) BCLR 1349 (CC) (15 July 2016); Solidarity obo Barnard.
95 S 13 of the Employment Equity Act.
96 Act 53 of 2003.
97 Merten, M (2019, 28 August) Employment Equity – 20 years down the line, a marginal
movement to diversity Daily Maverick available at
https://www.dailymaverick.co.za/article/2019-08-28-employment-equity-20-years-down-
the-line-a-marginal-movement-to-diversity/.
98 Motileng, BB, Wagner, C and Cassimjee, N (2006) Black middle managers’ experience of
affirmative action in a media company SA Journal of Industrial Psychology 32(1):11–6.
99 Motileng, Wagner and Cassimjee (2006) 14.
100 Motileng, Wagner and Cassimjee (2006) 14.
101 Minister of Finance and Other v Van Heerden (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121
(CC); 2004 (11) BCLR 1125 (CC); (29 July 2004) para 37; Solidarity obo Barnard para 36;
South African Restructuring and Insolvency Practitioners Association para 38.
102 South African Restructuring and Insolvency Practitioners Association para 47.
103 Van Heerden para 39.
104 Van Heerden para 40.
105 Albertyn and Goldblatt (2013) 35.35.
106 Van Heerden para 87.
107 Van Heerden para 155.
108 De Vos (2012) 77–8.
109 South African Restructuring and Insolvency Practitioners Association para 44.
110 Van Heerden para 41.
111 Van Heerden para 43.
112 Van Heerden para 41.
113 Van Heerden para 152.
114 Van Heerden para 44.
115 This view is bolstered by the concurrent decisions of Sachs J in Van Heerden para 146, in
which he emphasises the substantive nature of equality and affirms that s 9(2) of the
Constitution must be applied within this framework.
116 De Vos (2012) 93–4.
117 Pretorius (2010) 564.
118 South African Restructuring and Insolvency Practitioners Association para 44.
119 South African Restructuring and Insolvency Practitioners Association para 46.
120 Pretorius (2010) 562.
121 Pretorius (2010) 562–3.
122 Van Heerden para 41. See also Prinsloo paras 24–6 and 36; Jooste para 16.
123 South African Restructuring and Insolvency Practitioners Association para 47.
124 South African Restructuring and Insolvency Practitioners Association paras 49–54.
125 South African Restructuring and Insolvency Practitioners Association paras 55–8.
126 South African Restructuring and Insolvency Practitioners Association para 54.
127 South African Restructuring and Insolvency Practitioners Association para 50 and 51.
128 South African Restructuring and Insolvency Practitioners Association para 55.
129 South African Restructuring and Insolvency Practitioners Association para 58.
130 In National Coalition for Gay and Lesbian Equality v Minister of Justice para 18, the
Constitutional Court stressed that the two enquiries need not follow one from the other.
The rational connection enquiry would be clearly unnecessary in a case in which a court
holds that the discrimination is unfair and unjustifiable.
131 Harksen para 44. See also AB and Another v Minister of Social Development (CCT155/15)
[2016] ZACC 43; 2017 (3) SA 570 (CC); 2017 (3) BCLR 267 (CC) (29 November 2016) para
102; Minister of Safety and Security v South African Hunters and Game Conservation
Association (CCT177/17) [2018] ZACC 14; 2018 (2) SACR 164 (CC); 2018 (10) BCLR 1268
(CC) (7 June 2018) para 23.
132 Harksen para 44. This distinction and the concomitant two-stage analysis were not
employed in the cases preceding Harksen. In Prinsloo, for example, the Court combined
the two stages or, at least, did not identify the two stages (paras 30–1). See Currie and De
Waal (2013) 223.
133 Prinsloo para 29.
134 Harksen para 46.
135 Harksen para 50(b).
136 See Albertyn and Goldblatt (2013) 35.43.
137 Harksen para 47.
138 Walker para 43.
139 Walker para 43. Albertyn and Goldblatt (1998) 268 criticise this view and argue that it
‘denudes discrimination of its prejudicial connotations by not requiring that such prejudice
be demonstrated’. They find support for this view from the dissenting opinion of Sachs J in
Walker paras 105–6 who argued that there can only be a finding of discrimination (the first
stage of the analysis) if the claimant can prove that he or she had been prejudiced – that
there had been ‘actual negative impact’ associated with a specified ground – by the
differentiation which was based on one of the specified grounds. He concludes:
The core of my argument at this stage is that the complainant has not made out a
case of having suffered prima facie discrimination at all. In order to invoke the
presumption of unfairness contained in s 8(4) [now s 9(5)] some element of actual
or potential prejudice must be immanent in the differentiation, otherwise there is
no ‘discrimination’ to be evaluated, and the need to establish fairness or
unfairness has no subject matter.
This view was, however, explicitly rejected in the same case by the majority judgment of
Langa DP as contrary to the previous equality decisions of the Court (para 33).
140 Union of Refugee Women and Others v Director, Private Security Industry Regulatory
Authority and Others (CCT 39/06) [2006] ZACC 23; 2007 (4) SA 395 (CC); 2007 (4) BCLR 339
(CC) (12 December 2006) para 45.
141 Harksen para 46.
142 Harksen para 46.
143 Harksen para 47. See also AB para 105.
144 (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1 (CC); 2000 (11) BCLR 1211; (CC) (28 September
2000).
145 Hoffmann para 28.
146 Larbi-Odam para 19.
147 AB paras 106–7, where the Court held that:
Those who are pregnancy infertile, but not conception infertile, can use surrogacy
to ameliorate the psychological harms of infertility. By contrast, those who are both
conception and pregnancy infertile cannot. This raises the differentiation to the
level of discrimination. The harm to psychological integrity that infertility brings,
and which results in discriminatory treatment, is buttressed by our dignity
jurisprudence. The section which follows illustrates in more detail the effect section
294 has on the dignity of those negatively affected by it.
148 Nettle, D (2002) Height and Reproductive Success in a Cohort of British Men Human
Nature 13(4):487.
149 Workplace Rewards Tall People With Money, Respect, UF Study Shows (2003) available at
https://news.ufl.edu/archive/2003/10/workplace-rewards-tall-people-with-money-
respect-uf-study-shows.html.
150 Patzer, GL (1985) The Physical Attractiveness Phenomena 2.
151 See generally De Casanova, EM (2004) “No Ugly Women”: Concepts of Race and Beauty
among Adolescent Women in Ecuador Gender and Society 18(3):287–308. Accessed 19
October 2020 at http://www.jstor.org/stable/4149403.
152 See Fourie.
153 (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) (17 February
1998).
154 Walker para 31.
155 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11) BCLR 1117 (CC) (9 October
2002).
156 Jordan para 10.
157 Jordan para 60.
158 See Kassiem, A (2004, 11 February) Gay nightclub admits to discrimination Independent
Online available at http://www.iol.co.za/news/south-africa/gay-nightclub-admits-to-
racial-discrimination-1.122764.
159 Harksen para 44.
160 Harksen para 49.
161 Such an interpretation would mean that human dignity is employed by a court in both step
1 and step 2 in cases where the differentiation is based on one of the unspecified grounds.
This would make the process somewhat strange and at least one of the two steps
completely superfluous.
162 Van Heerden para 27; AB para 126.
163 See National Coalition for Gay and Lesbian Equality v Minister of Justice para 22 where
Ackermann J further stressed that the harm of discrimination is structural in nature.
164 Harksen para 49: ‘In the final analysis it is the impact of the discrimination on the
complainant that is the determining factor regarding the unfairness of the discrimination.’
AB para 127.
165 Harksen para 50.
166 Brink para 27. See also Albertyn and Goldblatt (2013) 35.76.
167 Khosa para 76.
168 See Hoffmann.
169 Khosa para 71.
170 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (2 December 1999)
para 54.
171 Act 68 of 1995.
172 Act 4 of 2000.
173 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT
59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (8) BCLR 872 (CC) (30 September
2005) paras 96 (Chaskalson CJ) and 434–7 (Ngcobo J).
174 Pillay para 40.
175 Pillay para 70.
176 Walker para 32.
177 Jordan para 59.
178 (EC03/2016) [2018] ZAWCHC 181; 2019 (4) SA 82 (WCC) (14 December 2018).
179 Social Justice Coalition para 41.
180 Social Justice Coalition para 65.
181 Social Justice Coalition para 61.
182 Social Justice Coalition para 63.
183 S 13 of PEPUDA, which reads as follows:
 1 If the complainant makes out a prima facie case of discrimination (a) the
respondent must prove, on the facts before the court, that the discrimination
did not take place as alleged: or (b) the respondent must prove that the conduct
is not based on one or more of the prohibited grounds.
2 If the discrimination did take place (a) on a ground in paragraph (a) of the
definition of ‘prohibited grounds’. then it is unfair, unless the respondent
proves that the discrimination is fair; (b) on a ground in paragraph (b) of the
definition of ‘prohibited grounds’, then it is unfair (i) if one or more of the
conditions set out in paragraph (b) of the definition of ‘prohibited grounds’ is
established; and (ii) unless the respondent proves that the discrimination is
fair.
184 S 14(2)(b) of PEPUDA.
185 This will constitute indirect discrimination as such a rule will disproportionately exclude
women from employment as security guards because far more men than women are taller
than 1,8 metres.
186 S 14(2)(a) of PEPUDA.
187 Pillay para 69.
188 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
189 Pillay para 73.
190 Pillay para 73.
191 Pillay para 75.
192 Pillay para 76.
193 Pillay para 77.
194 Pillay para 78.
195 Pillay para 74, quoting from Canadian Supreme Court judgment Eaton v Brant County
Board of Education [1997] 1 SCR 241 para 67.
196 Van Heerden; South African Restructuring and Insolvency Practitioners Association.
197 (58189/2015) [2017] ZAGPPHC 1220 (8 November 2017).
198 Solidariteit Helpende Hand para 75.
199 Albertyn (2018) 414.
200 S 1(a). See also s 36. See also Teddy Bear Clinic para 52.
201 Grootboom para 23.
202 In the case of S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632 (CC);
1995 (7) BCLR 861 (CC) (9 June 1995), which concerned corporal punishment, the
Constitutional Court held at para 45 that ‘the fact that the adult is stripped naked [for
purposes of the whipping] merely accentuates the degradation and humiliation. The
whipping of both is, in itself, a severe affront to the dignity as a human being’.
203 Haysom, N ‘Dignity’ in Cheadle, H, Davis, D and Haysom, N (eds) (2002) South African
Constitutional Law: The Bill of Rights 131. For further reading on dignity generally, see
Davis, DM (1999) Equality: The majesty of legoland jurisprudence South African Law
Journal 116:398–414 at 414; Cowen, S (2001) Can dignity guide South Africa’s equality
jurisprudence? South African Journal on Human Rights 17(1):34–58 at 34; Fagan (1998) 220.
204 Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC
20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007) para 98.
205 See generally the case of Pillay.
206 Woolman, S ‘The widening gyre of dignity’ in Woolman, S and Bishop M (eds) (2008)
Constitutional Conversations 197.
207 Walker para 113.
208 Makwanyane para 28 as per O’Regan J.
209 1 SCR 497 (1999).
210 See Chaskalson, A (2000) The Third Bram Fischer Lecture: Human dignity as a foundational
value of our Constitutional order South African Journal on Human Rights 16(2):193–205.
211 Law v Canada (Minister of Employment and Immigration) 1 SCR 497 (1999) para 53.
212 Woolman (2008) 202.
213 See Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC);
2017 (8) BCLR 949 (CC) (11 May 2017) para 33 where the Constitutional Court explained
how people’s ability to make meaningful choices can be limited indirectly by rules or
policies. The Court explained that denying an occupier on a farm the right to make
improvements to his or her dwelling implicates the right to dignity because —‘[i]f you deny
an occupier the right to make improvements to the dwelling, you take away its habitability.
And if you take away habitability, that may lead to her or his departure. That in turn may
take away the very essence of an occupier’s way of life. Most aspects of people’s lives are
often ordered around where they live.’
214 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) para
49. See also Cameron, E ‘Dignity and disgrace: Moral citizenship and constitutional
protection’ in McCrudden, C (ed) (2012) Understanding Human Dignity 476.
215 Freedom of Religion South Africa para 45.
216 Dawood para 35.
217 Grootboom para 34.
218 (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (5 July 2002)
para 28. See also Occupiers of 51 Olivia Road, Berea Township and 197 Main Street
Johannesburg v City of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208
(CC); 2008 (5) BCLR 475 (CC) (19 February 2008) para 10, where the Constitutional Court
held when discussing the interpretation of social and economic rights:
It is fundamental to an evaluation of the reasonableness of State action that account
be taken of the inherent dignity of human beings. The Constitution will be worth
infinitely less than its paper if the reasonableness of State action concerned with
housing is determined without regard to the fundamental constitutional value of
human dignity. Section 26, read in the context of the Bill of Rights as a whole, must
mean that the respondents have a right to reasonable action by the State in all
circumstances and with particular regard to human dignity. In short, I emphasise
that human beings are required to be treated as human beings. This is the backdrop
against which the conduct of the [State] must be seen.
219 Liebenberg, S (2005) The value of human dignity in interpreting socio-economic rights
South African Journal on Human Rights 21(1):1–31.
220 Liebenberg (2005) 5.
221 Dawood para 35.
222 Dawood para 35.
223 Dawood para 36.
224 Dawood para 28. See also Dladla and Another v City of Johannesburg and Others
(CCT124/16) [2017] ZACC 42; 2018 (2) SA 327 (CC); 2018 (2) BCLR 119 (CC) (1 December
 2017) para 49.
225 Dawood para 37.
226 Dladla para 49.
227 (CCT124/16) [2017] ZACC 42; 2018 (2) SA 327 (CC); 2018 (2) BCLR 119 (CC) (1 December
2017).
228 Dladla para 48.
229 Dladla.
230 Dladla paras 48 and 50.
231 Freedom of Religion South Africa.
232 S 12(1)(c) of the Constitution which reads: ‘(1) Everyone has the right to freedom and
security of the person, which includes the right … (c) to be free from all forms of violence
from either public or private sources.’
233 Freedom of Religion South Africa para 46.
234 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007)
paras 18–9.
235 Freedom of Religion South Africa para 46.
236 Freedom of Religion South Africa para 47.
237 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (9 October
1998).
238 National Coalition for Gay and Lesbian Equality para 28.
239 Fourie para 71.
240 (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013).
241 Act 32 of 2007.
242 S 56(2)(b) of the Sexual Offences and Related Matters Amendment Act.
243 Teddy Bear Clinic para 55.
244 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (7 June 2000).
245 See also Freedom of Religion South Africa; Daniels v Scribante and Another (CCT50/16)
[2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017).
246 Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002
(8) BCLR 771 (CC) para 27; Minister of Justice and Constitutional Development and Others v
Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others
v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018]
ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (18 September 2018).
247 (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May 1998) paras
26–7. See also Malachi v Cape Dance Academy International (Pty) Ltd (CCT 05/10) [2010]
ZACC 13; 2010 (6) SA 1 (CC); 2010 (11) BCLR 1116 (CC) (24 August 2010) para 33.
248 Act 44 of 1950.
249 Act 37 of 1963.
250 Act 83 of 1967.
251 Act 74 of 1982.
252 The re-opened inquest into the death of Ahmed Essop Timol (IQ01/2017) [2017] ZAGPPHC
652 (12 October 2017) para 39.
253 Ahmed Essop Timol para 39.
254 Ahmed Essop Timol para 39.
255 Ahmed Essop Timol para 43.
256 Ahmed Essop Timol para 45.
257 Ahmed Essop Timol para 46.
258 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
259 Act 61 of 1973.
260 Constitution of the Republic of South Africa, Act 200 of 1993.
261 Ahmed Essop Timol para 46.
262 Ferreira para 52.
263 Ferreira para 54.
264 Ferreira para 57.
265 Ferreira para 184.
266 Ferreira para 184.
267 (1905) 198 US 4.
268 Ferreira para 182.
269 (CCT23/95) [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) (27 March 1996).
270 Davis, DM ‘Freedom and Security of the Person’ in Cheadle, H and Davis, DM (eds) (2005)
South African Constitutional Law: The Bill of Rights 7–3.
271 Bernstein para 150.
272 See Bernstein para 159; Sibiya and Others v Director of Public Prosecutions: Johannesburg
High Court and Others (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812
(CC); (25 May 2005) para 31; Zealand v Minister for Justice and Constitutional Development
and Another (CCT54/07) [2008] ZACC 3; 2008 (4) SA 458 (CC); 2008 (6) BCLR 601 (CC) (11
March 2008) para 33; Malachi para 25; and De Vos N.O. and Others v Minister of Justice and
Constitutional Development and Others (CCT 150/14) [2015] ZACC 21; 2015 (2) SACR 217
(CC); 2015 (9) BCLR 1026 (CC) (26 June 2015).
273 (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) (28 May 1998).
274 Act 24 of 1936.
275 De Lange para 22.
276 De Lange para 23.
277 De Lange para 30.
278 De Lange para 36.
279 De Lange para 24.
280 De Lange para 57.
281 De Lange para 65.
282 See Zealand and Malachi.
283 Ferreira and Bernstein.
284 (CCT 38/10) [2010] ZACC 25; 2011(1) SA 400 (CC); 2011 (2) BCLR 150 (CC) (25 November
2010).
285 Law Society of South Africa para 57.
286 Article 5(b) of the Convention provides that ‘[i]n compliance with the fundamental
obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit
and to eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality
before the law, notably in the enjoyment of the following rights: … (b) The right to security
of person and protection by the State against violence or bodily harm, whether inflicted by
government officials or by any individual group or institutions’.
287 Law Society of South Africa para 59.
288 Law Society of South Africa paras 61–3.
289 Law Society of South Africa para 63.
290 S v Baloyi (Minister of Justice Intervening) (CCT29/99) [1999] ZACC 19; 2000 (2) SA 425
(CC); 2000 (1) BCLR 86 (CC) (3 December 1999).
291 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20;
2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004).
292 Freedom of Religion South Africa v Minister of Justice and Constitutional Development
(CCT320/17) [2019] ZACC 34; 2020 (1) SA 1 (CC); 2019 (11) BCLR 1321 (CC) (18 September
2019).
293 (CCT320/17) [2019] ZACC 34; 2020 (1) SA 1 (CC); 2019 (11) BCLR 1321 (CC) (18 September
2019).
294 Freedom of Religion South Africa para 38.
295 Freedom of Religion South Africa para 40.
296 Freedom of Religion South Africa para 42.
297 Freedom of Religion South Africa para 43.
298 Freedom of Religion South Africa para 44.
299 Freedom of Religion South Africa para 69.
300 (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) (5 April 2001).
See also S v Williams (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665
(CC) (6 June 1995) para 20 and S v Niemand (CCT 28/00) [2001] ZACC 11; 2002 (1) SA 21
(CC); 2002 (3) BCLR 219 (8 October 2001) para 22.
301 Dodo para 35.
302 Dodo.
303 Dodo para 37.
304 Dodo para 38.
305 Dodo para 38.
306 Dodo para 39.
307 S v Niemand (CCT 28/00) [2001] ZACC 11; 2002 (1) SA 21 (CC); 2002 (3) BCLR 219 (CC) (8
October 2001).
308 Act 51 of 1977.
309 Act 8 of 1959.
310 S v Niemand para 25.
311 S v Williams.
312 Some LLB students and young lawyers who discuss Constitutional Court judgments on
Twitter have even jokingly started referring to themselves as ‘S v Makwanyane Twitter’, in
reference to the celebrated case. See @TanveerJeewa available at
https://twitter.com/TanveerJeewa/status/1268436716760817664?s=20 and
@siphosihlembuli available at
https://twitter.com/siphosihlembuli/status/1264461815024664576?s=20.
313 S v Makwanyane para 26.
314 S v Makwanyane para 51.
315 S v Makwanyane para 54.
316 S v Makwanyane para 54.
317 See Murphy, TF (2019) Adolescents and Body Modification for Gender Identity Expression
Medical Law Review 27(4):623–39.
318 See Brandt, AM (1978) Racism and Research: The Case of the Tuskegee Syphilis Study The
Hastings Center Report 8(6):21–9.
319 Jenkins, D, and Johnston, LB (2004) Unethical Treatment of Gay and Lesbian People with
Conversion Therapy Families in Society 85(4):557–61.
320 Patella-Rey, PJ (2018) Beyond privacy: Bodily integrity as an alternative framework for
understanding non-consensual pornography Information Communication & Society
21(5):786–91 at 789.
321 National Coalition for Gay and Lesbian Equality para 29. In this case the Constitutional
Court, considering the prohibition on same-sex sodomy, accepted that relying on the right
to privacy alone would be inadequate, but held that it could be invoked along with other
rights such as the right against unfair discrimination.
322 See also Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003
(10) BCLR 1100 (CC) (28 August 2003) para 39; De Lange para 22; Nel v Le Roux NO
(CCT30/95) [1996] ZACC 6; 1996 (3) SA 562 (CC); 1996 (4) BCLR 592 (CC) (4 April 1996)
para 12; Bernstein para 145.
323 AB and Another v Minister of Social Development (CCT155/15) [2016] ZACC 43; 2017 (3) SA
570 (CC); 2017 (3) BCLR 267 (CC) (29 November 2016).
324 AB para 66.
325 AB para 67.
326 AB para 310.
327 AB para 69.
328 See Bishop, M and Woolman, S ‘Freedom and Security of the Person’ in Woolman, S and
Bishop, M (eds) (2006) Constitutional Law of South Africa 2nd ed original service chap 40 at
77.
329 Bishop and Woolman (2006) chap 40 at 77.
330 Shirin Heidari (2015) Sexual rights and bodily integrity as human rights Reproductive
Health Matters 23:46, 1–6 at 3
331 Michele O’ Sullivan ‘Reproductive Rights’ in Woolman, S and Bishop, M (eds) (2006)
Constitutional Law of South Africa 2nd ed original service chap chap 37 at 17.
332 S v Baloyi 2000 (2) SA 425 (CC), 2000 (1) BCLR 86 (CC) para 11. See also Sonderup v
Tondelli 2001 (1) SA 1171 (CC), 2001 (12) BCLR 152 (CC) para 34.
333 Albertyn, C (2015) Claiming and defending abortion rights in South Africa Revista Direito
GV 11(2):429–54 at 431.
334 Albertyn (2015) 432.
335 Act 92 of 1996.
336 S 2(1) of the Choice on Termination of Pregnancy Act.
337 Christian Lawyers Association of SA v Minister of Health 1998 (11) BCLR 1434 (T), 1998 (4)
SA 1113 (T) (Christian Lawyers I) and Christian Lawyers Association v Minister of Health
2005 (1) SA 509 (T) (Christian Lawyers II).
338 Christian Lawyers II 526H–7A.
339 AB para 312.
340 AB para 313.
341 Act 23 of 1957, later renamed the Sexual Offences Act.
342 Act 55 of 1949.
343 See http://www.capetownmagazine.com/events/statements-after-an-arrest-under-the-
immorality-act/11_37_54253.
344 Currie and De Waal (2013) 294.
345 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
346 Prince para 45.
347 Bernstein para 73; Prince para 44.
348 Bernstein para 75.
349 Bernstein para 75.
350 This is why participants in a reality television show such as Big Brother – in which
contestants are filmed 24 hours a day in a secluded house – would not be able to claim that
their right to privacy had been infringed.
351 Bernstein para 67.
352 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079
(CC) (25 August 2000) para 18.
353 Currie and De Waal (2013) 30.
354 Jordan para 80.
355 Jordan para 29.
356 (CCT1/00) [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC). (25 August
2000).
357 Hyundai Motor Distributors para 18.
358 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
359 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
360 Cameron, E (1993) Sexual orientation and the Constitution: A test case for human rights
South African Law Journal 110(3):450 at 461–2.
361 National Coalition for Gay and Lesbian Equality v Minister of Justice para 30.
362 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
363 Teddy Bear Clinic para 60.
364 Teddy Bear Clinic para 60.
365 (CCT108/17) [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (18
September 2018).
366 Prince para 58.
367 Prince para 94.
368 Prince paras 78–2.
369 Prince para 100.
370 Prince para 85.
371 Prince para 88.
DIVERSITY RIGHTS

14.1 Introduction

14.2 Freedom of association

14.2.1 Introduction
14.2.2 The scope and content of section 18 of the Constitution
14.2.3 Societal interests overriding association rights
14.2.3.1 Equality
14.2.3.2 Democracy
14.2.4 Balancing rights

14.3 Freedom of religion, belief and opinion

14.3.1 Introduction
14.3.2 The scope and content of section 15(1) of the Constitution
14.3.3 The reasonable accommodation of religious beliefs and practices
14.3.4 The right not to believe in any God or higher being
14.3.5 Conducting religious observances at state institutions: section 15(2) of the Constitution
14.3.6 Legislation recognising religious and traditional marriages: section 15(3)(a)(i) of the
Constitution

14.4 The rights of cultural and religious communities

14.4.1 The individual nature of these rights and how other rights both qualify and enhance
them
14.4.2 The international protection of cultural liberties
14.4.3 An analysis of the scope and content of sections 30 and 31 of the Constitution
14.4.4 An analysis of the internal modifiers in sections 30 and 31 of the Constitution
 14.5 Language rights
14.5.1 Introduction
14.5.2 The right not to be unfairly discriminated against on the basis of language
14.5.3 The right to receive education in the official language of choice
14.5.4 Official languages of the Republic
14.5.5 The Pan South African Language Board

Summary

14.1 Introduction
South Africa is a heterogeneous society in which individuals with
diverse religious affiliations, cultural beliefs and practices, and
languages must co-exist. Given the heterogeneous nature of South
Africa, it is important for the law to respect and protect the beliefs,
practices and languages of the diverse groups that make up South
Africa’s population. This is because in a society in which diversity is not
respected or protected, the law will normally reflect the beliefs,
practices and languages of the majority or dominant group, and will
marginalise the beliefs, practices and languages of minority or
subordinate groups. When the beliefs, practices and languages of
minority or subordinate groups are marginalised, this not only
diminishes the constitutional goal of establishing a diverse society, but
may also cause harm to members of a marginalised group. This is
especially so in those cases where the group in question is
economically, politically or socially vulnerable.
This state of affairs could arise, for example, when the law recognises
and endorses the view that homosexuality is wrong and that gay men
and lesbians do not deserve to be treated with equal concern and
respect. This would be extremely harmful to gay men and lesbians who
would be marginalised and discriminated against and might even face
threats to their physical well-being. Similarly, if the law recognises and
endorses the view that certain cultural practices, such as male
circumcision, were harmful to all boys, the concomitant ban on male
circumcision would limit the rights of those sections of society whose
cultural beliefs demand that all young men should undergo
circumcision. Again, if the law recognises and endorses the view that
English should be the only medium of communication in South Africa,
this would marginalise many South Africans whose mother tongue is
not English.
While it is important to respect the beliefs, practices and languages
of diverse groups, it is also important to recognise that some beliefs,
practices and languages have the potential to marginalise, exclude or
oppress other people and that they should be prohibited from doing so.
When it comes to determining whether the harmful beliefs, practices
and languages of a specific group should be prohibited, the courts must
balance the interests of the harm-causing group with the interests of
others in society. In those cases in which the interests of others in
society outweigh the interests of the harm-causing group, then the
associational rights of the harm-causing group will have to be limited.
Striking the correct balance is not always easy. Sometimes the
interests of some groups have to yield to the interests of other groups. It
is impossible for the law to accommodate all the diverse beliefs,
practices and attitudes of all people living in South Africa in an absolute
manner while also protecting individuals against discrimination,
marginalisation and exclusion.
In this chapter we discuss some of the rights where the problem of
accommodating diversity arises most acutely. These rights include the
right to freedom of association, the right to freedom of religion, the
rights of cultural and religious communities, and language rights. It is
impossible to do so without keeping in mind the scope and content of
the rights to equality, human dignity and privacy discussed in Chapter
13 of this book. This is because the cultural and religious beliefs and
practices of some groups are often in direct or indirect conflict with the
demands not to discriminate unfairly against others and to respect the
human dignity of all. Although we discuss the scope and content of the
various rights in detail, we do so against the background of the broader
question regarding the manner in which the law can respect and protect
cultural and religious diversity without negating the rights of other
groups who do not share the same beliefs and who do not engage in the
same practices.
14.2 Freedom of association

14.2.1 Introduction
Section 18 of the Constitution provides that ‘[e]veryone has the right to
freedom of association’. Freedom of association is often said to be a
foundational right for any vibrant constitutional democracy. A right to
associate freely with others ‘makes participatory politics meaningful
and genuinely representative politics possible’.1 This right also allows
individuals to make choices about how they want to arrange their lives
and about their identities as people in relationships with others in a
given society, thus advancing respect for and protecting diversity.2 The
right to freedom of association guarantees a degree of autonomy that
allows individuals to make both overtly political and more intimate
choices about who to associate with. These are choices that may affect
their lives and their identities by giving them expression in community
with others.
The fact that the right to freedom of association allows individuals to
make both overtly political and more intimate choices about who to
associate with was highlighted by the Constitutional Court in New
Nation Movement NPC and Others v President of the Republic of South
Africa and Others.3 In this case, the Court held that individuals associate
with one another in both large and small groups. Individuals typically
associate in large groups in order to achieve less individualised goals
such as political and religious objectives4 and in small groups in order
to achieve more individualised goals such as ‘succour, solace,
emotional support and sharing joy, pain and confidences’.5 Although
both forms of association are protected by the right to freedom of
association, the Court held further, it will usually be more difficult to
justify state interferences with small and intimate associations between
partners, friends and families than to justify state interferences with
large and non-intimate associations such as political parties.6
At the heart of the right to freedom of association lies the
recognition of the communal nature of people7 and the need for people
to exercise some of their rights as individuals ‘in association with others
of like disposition’.8 It is based on an understanding ‘that generally we
are stronger when we have the support of others’.9 This is because we
can develop our full potential only by relating to other people, either on
an individual or collective basis. In addition, people can often only
engage in meaningful political action in association with others. In
other words, the right to freedom of association ‘protects the rights of
collective self-determination’.10 In MEC for Education: Kwazulu-Natal
and Others v Pillay, the Constitutional Court linked this notion with the
concept of ubuntu, stating:
The notion that ‘we are not islands unto ourselves’ is central to the
understanding of the individual in African thought. It is often expressed in the
phrase umuntu ngumuntu ngabantu which emphasises ‘communality and the
inter-dependence of the members of a community’ and that every individual is
an extension of others. According to Gyekye, ‘an individual human person
cannot develop and achieve the fullness of his/her potential without the
concrete act of relating to other individual persons’. This thinking emphasises
the importance of community to individual identity and hence to human
dignity. Dignity and identity are inseparably linked as one’s sense of self-worth
is defined by one’s identity. Cultural identity is one of the most important parts
of a person’s identity precisely because it flows from belonging to a community
and not from personal choice or achievement. And belonging involves more
than simple association; it includes participation and expression of the
community’s practices and traditions.11

Associational rights are often instrumental in nature as they enable the

individuals who form the associations to better protect and assert more
robustly other constitutional rights.12 No wonder, then, that De
Toqueville is quoted as saying that ‘no legislator can attack [the right to
freedom of association] without impairing the very foundations of
society’.13 What De Toqueville suggests is that the right to freedom of
association supports and underpins many other important rights. These
include the right to make political choices, the right to form a political
party, the right to participate in the activities of that party by recruiting,
organising and campaigning on its behalf, and the right to campaign for
a political party or cause. These rights are described as political rights in
the Constitution and are the very essence of a vibrant constitutional
democracy.
 Even though the right to freedom of association has a communal
aspect, it is important to note that it is primarily a right that belongs to
the individual rather than the association.14 In other words,
associational rights do not protect groups as groups: these rights remain
individual rights that protect the right of individuals to associate or not
to associate with others or groups of others. As Summers points out:
Although commonly asserted by the organization, freedom of association is
not simply a collective right vested in the organization for its benefit. Freedom
of association is an individual right vested in the individual to enable him [sic]
to enlarge his [sic] personal freedom. Its function is not merely to grant power
to groups, but to enrich the individual’s participation in the democratic process
by his [sic] acting through those groups.15

The Constitutional Court affirmed this point in Pillay when O’Regan J

stated that associative rights such as the right to belong to cultural,
religious and linguistic communities are exercised by the individual
person.16 They are not rights that attach to the group. This does not
mean that the right is not related to the need for individuals to belong to
formal or informal organisations or groupings. To advance their
political, social, cultural, religious, recreational, charitable, educational
and other interests, individuals band together in organisations. This is
because individual interests are often better served if they are advanced
by associations of like-minded persons. However, it is not the right of
the organisation that is protected. Nor is it the right of the group who
belong to the organisation that is protected. Rather, it is the right of the
individual to belong to that organisation that is protected. This is
because the right recognises the autonomy of the individual to advance
his or her interests in concert with others in this manner.
As suggested above, the right to freedom of association is closely
related to and sometimes overlaps with other rights such as the right to
human dignity and the right to privacy.17 In the previous chapter we
noted that the Constitutional Court has recognised that the right to
human dignity contains an associational element at least as far as
intimate relationships, such as marriage, are concerned. Thus, in
Dawood and Another v Minister of Home Affairs and Others; Shalabi
and Another v Minister of Home Affairs and Others; Thomas and Another
v Minister of Home Affairs and Others, the Constitutional Court held
that a ‘decision to enter into a marriage relationship and to sustain such
a relationship is a matter of defining significance for many if not most
people’ and to limit this right would clearly constitute an infringement
of the right to dignity.18
In light of the problems related to the accommodation of diversity
raised in the introduction to this chapter, it must be noted that difficult
questions arise about the scope and content of the right to freedom of
association. The need to respect this right sometimes clashes directly
with the need to respect other important rights such as the right to
human dignity, the right not to be unfairly discriminated against and
the right to freedom of movement. This is because associational rights
may be used by private bodies or institutions that provide access to
benefits, goods, services and opportunities to exclude, marginalise or
discriminate against others. Their actions, therefore, can have a
detrimental effect on the well-being of those individuals whom they
exclude, marginalise or discriminate against. The more powerful a body
is and the more serious the potential harmful effect of that body’s
actions on others is, therefore, the less likely it is that the members of
that body will be allowed to exercise their right to freedom of
association in an untrammelled manner.
The problem is particularly acute where so-called private bodies
provide a service to the public. The owner of a holiday resort catering
for white Afrikaans, Christian holiday makers, for example, may wish to
restrict access to that holiday resort to white, heterosexual visitors.
Given that the holiday resort provides a benefit and a service to the
public, those people who are excluded from enjoying the benefit are
harmed as they will never be able to enjoy the same privileges as the
people accommodated by the holiday resort. The question arises
whether the holiday resort is entitled to invoke the right to freedom of
association to justify its discrimination against black South Africans or
against gay and lesbian South Africans. When a holiday resort excludes
a person because of his or her race or sexual orientation, this can send a
powerful signal to that person and the group to whom he or she belongs
that he or she is not equally valued in society and cannot access the
same benefits and services provided by the ostensibly ‘private’ body
that others can access.
In the following sections we explore the scope and content of the
right to freedom of association with reference to this dichotomy. As we
will see, the conundrum the courts often face is to balance the rights of
individuals in the association asserting their autonomy with those of
others seeking access to the association.

Examples of issues raised by the

accommodation of diversity within the
framework of associational rights
The following examples illustrate the issues raised by
the accommodation of diversity within the framework of
associational rights.
The Afrikaanse Taal en Kultuur Vereeniging (ATKV)
is a cultural organisation that promotes Afrikaans
culture and Christianity. It owns a number of holiday
resorts in various parts of the country. These resorts
are open to all who can pay the entrance fee and the
costs of hiring the bungalows. However, members of
the ATKV are entitled to a 20% discount if they visit the
resorts. To be admitted as members, applicants have
to commit to advancing the Afrikaans culture and
Christianity.
Let us imagine that Mr Mohamed and Mr Omar
regard themselves as ‘Afrikaners’ and have no difficulty
committing to advancing Afrikaans cultural interests.
However, as they are Muslims, they delete the part of
the application form calling for a commitment to
advancing Christianity. As a consequence of this, their
application to join the ATKV is turned down.
If Mr Mohamed and Mr Omar challenged the rules
for joining the ATKV on the basis that these rules
unfairly discriminated against them on the basis of
 their religion, the ATKV could defend itself by arguing
that Christians have a right to freedom of association
and that this right should trump the right to protection
against unfair discrimination.
In determining whether the ATKV acted lawfully by
excluding Mr Mohamed and Mr Omar, a court will have
to decide which of the rights should prevail in the
particular circumstance. The answer the court gives will
probably depend on the importance it attaches to the
right to non-discrimination in relation to the right to
freedom of association. As we continue the discussion
of freedom of association, it would be helpful to keep
in mind this example.
Now let us also imagine that the body that is
discriminating against Muslims is not the ATKV
providing a public service in the form of access to
various holiday resorts, but a book club hosted by Mr
Van der Merwe in the privacy of his own home in
Waterkloof in Pretoria. Mr Van der Merwe started the
book club with the specific aim of creating a safe
environment where he and his like-minded friends
could discuss books with a Christian theme (provided
to the club by CUM Books). Most people would
instinctively think that – unlike the ATKV – Mr Van der
Merwe should be allowed to discriminate against non-
Christians. As the nature of the benefit denied to
others is limited and as the association is of an
extremely private nature, this view would almost
certainly conform to the legal position. As we continue
discussing this issue, it would be helpful to reflect on
what basis such a determination would be made.

14.2.2 The scope and content of section 18 of the

Constitution
The right to freedom of association protects the right of individuals:
• to associate with whom they wish
• to disassociate from whom they wish
• to form intimate bonds or relationships with others with whom they
share common interests or cultural or religious attitudes and beliefs
• to protect those relationships from untoward infringement by the
state or other powerful role players.

The freedom not to associate

In New Nation Movement NPC and Others v President
of the Republic of South Africa and Others, the
Constitutional Court had to determine whether that
party proportional representation electoral system –
which prevented adult citizens from standing for
election to the National Assembly and the provincial
legislatures as independent candidates – infringed
section 19(3)(b) of the Constitution, which provides
that ‘[e]very adult citizen has the right to stand for
and, if elected, hold public office’. The appellants
argued that the party proportional representation
electoral system did infringe section 19(3)(b) because,
properly interpreted, section 19(3)(b) confers a right
on adult citizen to stand for public office either as
members of a political party or as independent
candidates. The respondents argued the opposite,
namely that the party proportional representation
system did not infringe section 19(3)(b) because,
properly interpreted, section 19(3)(b) confers a right
on adult citizens to stand for office only as members of
political parties.
Given that the various provisions of the
Constitution must be interpreted consistently with one
another, the Constitutional Court held that it was
obliged to adopt the interpretation of section 19(3)(b)
that harmonised best with the other provisions of the
Constitution and especially the interpretation that
harmonised best with the right to freedom of
association’.19 In order to determine whether the
appellant’s wide interpretation of section 19(3)(b) or
the respondent’s narrow interpretation of section 19(3)
(b) harmonised best with the right to freedom of
association, the Court held further, it first had to
determine whether section 18 included, not only a
positive right to associate, but also a negative right not
to associate.20 The Court held that it did.
In arriving at this decision, the Constitutional Court
examined the approach adopted by the courts in other
jurisdictions and especially the approach adopted by
the European Court of Human Rights (ECHR) and the
African Court of Human and People’s Rights (ACHPR).
Despite the fact that the relevant clauses in the
European Convention on Human Rights21 and the
African Charter on Human and Peoples’ Rights22 are
worded differently,23 both of these international courts
have found that the right to freedom of association
implicitly includes a negative right not to associate for
essentially the same reasons, namely that it protects
individuals from being compelled to associate with
others against their will and thus safeguards the very
substance of the right.24 In addition, the ECHR has also
held that negative element protects the right to
freedom of opinion which is one of the purposes of the
freedom of association.25
Apart from these reasons, the Constitutional Court
held, there are a number of other reasons for
recognising a negative right not to associate, especially
when it comes to political parties. One of these is that
membership of a political party is usually
accompanied by obligations and responsibilities and
some individuals may find these obligations and
responsibilities unacceptable.26 Membership of a
political party, the Court held further, ‘may be too
trammelling to those who are averse to control. It may
be overly restrictive to the free spirited. It may be
censoring to those who are loath to be straight-
jacketed by predetermined party positions. In a sense,
it just may – at times – detract from the element of
self; the idea of a free self; one’s idea of freedom’.27
Forcing an individual to join or form a political
party in order to exercise his or her right to stand for
public office, the Constitutional Court went on to hold,
also infringes the right to freedom of conscience and
the right to dignity. It infringes the right to freedom of
conscience because a person might be opposed to
party politics and party discipline on conscientious
grounds. They may not want to be constrained by the
kind of partisanship that comes with being a member
of a political party and that ultimately makes you
answerable to the party rather than to the voters.28 It
infringes the right to dignity because coercion always
implicates the right to dignity. This is because an
individual’s decisions about who he or she wishes to
associate with or whether he or she wishes to
associate at all, are closely related to the inner self. It
is, consequently, an affront to an individual’s true self,
and an assault on an individual’s dignity, to be told
who he or she must associate with or to be told simply
to associate when that individual does not wish to do
so.29
Besides these rational or sound reasons for not
wanting to form or join a political party, the
Constitutional Court concluded, an individual may also
have irrational or unfounded reasons for not wanting to
 do so and these reasons are also protected by section
18:
This must not be taken to mean the state is entitled to ride
roughshod over associational choices that are not sound. Even if
not well founded, choices by an individual may well define her or
him. Unless the state can justify interference, even such choices
are deserving of protection under section 18. Indeed, I read
Woolman to make a similar point. Many of the life practices we
follow have nothing to do with well thought-out choices. Some are
“arational” choices dictated by the world we live in. One may be a
member of a certain religion not because she or he has made a
conscious decision in that regard, but purely because that is the
religion she or he grew up in. Likewise, one may follow certain
cultural practices and thereby commune with certain groups of
people in furtherance of their culture. And that may be for no
reason other than that that’s what she or he was socialised into.
So, some of our associational relations may not have been
chosen. “They just are.” But they may be deserving of protection.
All this must also apply to arational choices not to associate.
Again, that is subject to constitutionally compliant curtailment by
the state.30

Importantly, the right to freedom of association supports the right to

form religious, cultural and linguistic associations to give greater
expression to the protection of cultural liberties. As such, freedom of
association safeguards the liberty of individuals to decide for
themselves how they want to live and with whom they want to associate
in the private sphere. In the United States context, Brennan J affirmed
this point in Roberts v United States Jaycees where he stated:
The Court has long recognized that, because the [United States] Bill of Rights is
designed to secure individual liberty, it must afford the formation and
preservation of certain kinds of highly personal relationships a substantial
measure of sanctuary from unjustified interference by the State.31

The constitutional shelter afforded to such relationships reflects the

realisation that individuals draw much of their emotional enrichment
from close ties with others. Providing a degree of protection to these
relationships from unwarranted interference by the state and by
powerful private bodies, therefore, safeguards the ability of a person to
define independently his or her identity, which is central to any concept
of liberty.
Examples of intensely private relationships protected by this right
include the institution of marriage, the raising of children and
cohabiting with a partner.32 In Roberts v United States Jaycees, Brennan J
distinguished those associations that have an intrinsic element of
personal liberty from associations situated at the other end of the
continuum such as large business enterprises. He correctly argued that
the constitutional constraints on the state’s power to regulate private
intimate associations were greater than the constraints on its power to
regulate business enterprises. The state’s power to control the selection
of a person’s partner in an intimate relationship is severely curtailed but
not so in respect of decisions to select employees.33
As a general rule, the more public the activity is and the further
removed the activity is from the intimate activities of an individual, the
less likely it is that the right to freedom of association will protect an
activity and prevent intrusion into or regulation of that activity. This is
especially so where the activity excludes others or is harmful to others.
So, the state cannot force a person to marry somebody of the opposite
sex or of a different racial identity as these activities are deeply personal
and close to the core of the individual’s private beliefs and attitudes.
However, the state can prohibit a large company from discriminating
against gay men or lesbians or against black people when employing
staff or when deciding whether to provide a service to them.
Between these two extremes lies a large number of voluntary, semi-
private associations that contribute towards the enrichment and
happiness of individuals in different ways. These associations are semi-
private because they fulfil some public function or provide a service or
benefit to the public. However, these semi-private associations
constitute a grey area where it is not always easy to decide whether
intrusion by the state is constitutionally warranted or not. The state’s
reach into these organisations depends on the nature of the
organisation, the impact it has on the public, the extent to which it
regulates economic and social mobility, and the constitutional right
that the association furthers and protects. According to Brennan J, the
size, purpose, policies, selectivity, congeniality and other characteristics
of an association may be pertinent in determining whether it should be
subject to state regulation.34
When a court has to make a determination as to the constitutionality
of exclusionary practices, it will consider the nature of the constitutional
right a party seeks to enforce as well as the potentially negative effect
this has on the other party whose right the association seeks to enforce.
Thus, if, on the one hand, the association has been formed for
commercial activities, thus affecting the right to choose a trade,
occupation and profession, the state may have greater latitude in
reaching into the domains of these associations. If, on the other hand,
the constitutional rights that the association seeks to protect, promote
and enhance relate to religion, culture and language, then the reach of
the state may be more circumscribed. Similarly, if the state seeks to
invade the associational rights of an organisation in a manner that
poses a real risk to the organisation’s members or if such an intrusion
would have a detrimental effect on individuals joining the organisation
or association, then courts may well attempt to protect such rights in a
robust fashion.

The right to freedom of association is

indispensable where a group holds dissident
beliefs
The National Association for the Advancement of
Coloured People (NAACP) is a civil rights non-
governmental organisation that seeks to ensure that
black people in the United States of America (USA) are
accorded their constitutional rights. In the 1950s and
60s, they engaged in protest action and litigation in
many states in the south of the USA where legally
sanctioned racial discrimination was rife. In NAACP v
Alabama,35 the state of Alabama demanded the
names and addresses of all the NAACP members in
Alabama. This would have enabled the state to see
who was contributing time, energy and money to the
organisation. The US Supreme Court held that the
compulsory disclosure of membership lists would
violate the associational rights of members and that
‘privacy in group association may in many
circumstances be indispensable to preservation of
freedom of association, particularly where a group
espouses dissident beliefs’.36
Apart from safeguarding the liberty of individuals
to decide for themselves how they want to live and with
whom they want to associate, associational rights are
also protected to prevent ‘capture’.37 Associations
require their members to expend time, energy and
money on building the organisation. Members readily
volunteer because of their commitment to the cause.
The right to freedom of association allows the
organisation to adopt policies to prevent persons with
aims that are inimical to the objectives of the
organisation from ‘capturing’ the organisation and
subverting its objectives. Thus, in Royal Society for the
Prevention of Cruelty to Animals (RSPCA) v Attorney-
General,38 the Chancery Division of the High Court in
England and Wales upheld the policies of the RSPCA
that were designed to remove and exclude members
who wished to change the society’s policy on hunting
and blood sports. Given the RSPCA’s commitment to
the humane treatment of animals, policy changes
favouring hunting and blood sports would effectively
result in the ‘capture’ of the society and change its
focus and emphasis. The Court held that the RSPCA’s
exclusionary policies were consistent with the Human
Rights Act of 1998. The close nexus between the
objectives and the exclusionary policies and the
limited impact on the rights of the people denied
admission or excluded from the organisation
adequately justified the policy of the organisation and
rendered it permissible.39
A corollary of the right to associate is the right to
dissociate. Thus, in Hurley v Irish-American Gay,
Lesbian and Bisexual Group of Boston,40 the US
Supreme Court adopted the same approach and held
that the right to associate included the right to exclude
unwanted members and unwanted messages. The
organisers of a St Patrick’s Day parade were willing to
allow gay men and lesbians to participate in the
parade, but refused to allow them to march as a unit
under their own banners. The Court held that the
parade organisers had a right to refuse to endorse a
message supporting gay rights which would be
conveyed by permitting the banners. The Court held
that ‘it boils down to the choice of a speaker not to
propound a particular point of view, and that choice is
presumed to lie beyond the government’s power to
control’.41
Associations that regulate professionals or other
business or trade activities may sometimes force
individuals to associate with causes that are not
directly or indirectly related to the primary objectives or
principles of the organisation. Conflicts arise when
individuals are compelled by law to belong to these
organisations but refuse to participate in some
activities which they find objectionable and which are
unrelated to the primary purpose of the organisation.
In Chassagnou v France, 42 for example, farmers who
owned smallholdings in France were obliged by the law
to join and then transfer hunting rights over their land
to municipal hunting associations. The European Court
of Human Rights found that the French law forced the
farmers to associate with a cause which may be in
conflict with their personal convictions and therefore
violated their right to associate which included the
right not to belong to an organisation whose objectives
were inimical to their personal beliefs.

The close relationship between the right to

protest and the right to freedom of
association
In 2016, during the ‘Fees Must Fall’ protest by
students on campuses across South Africa, students
from the University of Cape Town erected a wood and
corrugated iron structure in the middle of a road in the
centre of campus. The structure was of a type
commonly encountered in informal residential areas
and was erected to protest the housing crisis on
campus. It was described by some protesters as ‘a
themed protest action: that sought to thoughtfully
create an artistic form of protest with the idea to
showcase the experience of hardship of Black students
and their daily pains and struggles’.43 The actions of
the protesters infringed the university’s acknowledged
rights by obstructing access to parts of the campus
and the university approached the court for an interdict
to prevent the students from continuing with their
protest. The High Court granted an interdict in broad
terms, but on appeal to the Supreme Court of Appeal
held that this order – which prohibited the protesting
students from entering or remaining on campus or
taking part in protest action on campus – infringed on
their rights, including the right to freedom of assembly
and their right to freedom of association.44 The court
proceeded to set aside this part of the interdict. The
judgment illustrates the close relationship between the
 right to freedom of assembly (discussed in chapter 15)
and the right to freedom of association with the
Supreme Court of Appeal (SCA) explaining the
infringement of the latter right as follows:
It also restricted their right to exercise their right of freedom of
association with others who shared their view of the problems
facing the university in particular, but more generally all
universities in South Africa as well as broader social issues. And it
constituted a substantial intervention in their social lives. If
permission were given for one of them to attend a lecture, they
would not be able to join their fellow students for coffee
afterwards without obtaining express permission. They could not
decide on the spur of the moment to attend an interesting talk or
event on campus. Without permission they could not attend a
sporting function or meet a friend or collect someone from a
residence before going out on a social occasion. The fifth
[applicant], who had made complaints about sexual abuse she
had suffered on campus, unconnected with the protests, would be
unable to ascertain directly whether anything was being done in
regard to her complaints.45

This passage suggests that the right to freedom of

association does not only apply to individuals who
wish to associate in a formal or organised manner. The
right extends to informal associations such as occur
every day when friends meet or when individuals
decide to take part in some or other social activity. This
suggests that the right should be interpreted
generously and that it could be applied broadly to
many situations where it is made more difficult for
individuals to come together formally or informally.

14.2.3 Societal interests overriding association rights

The right to freedom of association is not an unqualified right. As
discussed in the introduction to this chapter, a tension may arise
between the right to associate and the important interests of others and
of the broader society. The state, therefore, may wish to interfere with
the right to freedom of association to secure the safety of society, to
protect the dignity of all citizens and to facilitate greater political
participation.46 For example, the state may ban criminal associations to
protect society against the dangers of organised crime. The state may
also interfere with the right to freedom of association to ensure that
certain groups open themselves up to a wider potential membership
because these groups control access to important social goods. The
extent to which the function being fulfilled by the association fulfils a
public function will also play an important role in deciding on whether
the right to association can be limited. The more an association
distributes public goods or the more public the functions of the
association are, the more likely it is to be subject to legitimate state
intervention.47 The state, therefore, may interfere with the freedom of
association in certain contexts. Some of the contexts within which the
right to freedom of association may be limited by the state are discussed
below.

14.2.3.1 Equality
Certain associations may be required to ‘open themselves up to a wider
potential membership because they control access to important social
goods’.48 In the South African context, this requirement features
prominently in the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA).49 PEPUDA promotes the right to equality
among private bodies and individuals and thus limits the extent to
which private institutions and organisations may determine and
manage their own membership policies and internal affairs. Given that
control over an organisation’s membership policies and internal affairs
are often critical to its identity, PEPUDA could, in effect, force a change
in these policies. It thus represents a severe limitation on the general
right to freedom of association.50
Section 6 of PEPUDA states in this respect that ‘[n]either the State
nor any person may unfairly discriminate against any person’. As we
have seen in chapter 13, when a private individual or organisation
discriminates against an individual by, for example, excluding that
person from membership of the organisation on the basis of his or her
race, gender or sexual orientation, the onus is on the party who
discriminated to prove that the discrimination is not unfair. Sections
14(2) and (3) of PEPUDA set out the factors a court must take into
account when determining whether the respondent has proven the
discrimination to be fair. These factors are:
• the context
• whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria
intrinsic to the activity concerned
• whether the discrimination impairs or is likely to impair human
dignity
• the impact or likely impact of the discrimination on the complainant
• the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group that
suffers from such patterns of disadvantage
• the nature and extent of the discrimination
• whether the discrimination is systemic in nature
• whether the discrimination has a legitimate purpose
• whether and to what extent the discrimination achieves its purpose
• whether there are less restrictive and less disadvantageous means to
achieve the purpose
• whether and to what extent the respondent has taken such steps as
are reasonable in the circumstances to address the disadvantage
which arises from or is related to one or more of the prohibited
grounds or to accommodate diversity.

For example, a private organisation whose policies regarding admission

discriminate against an individual based on his or her sexual
orientation, for example, would have to argue that the exclusion is
‘intrinsic to the activity’ of that organisation and that it is not based
merely on prejudice or irrelevant attitudes that fuel discrimination.51
The organisation may also argue that the discrimination has a
legitimate purpose and, as such, can be justified. In each case the
association claiming a right to association in potential conflict with the
PEPUDA will have the burden of showing that its associational interests
trump the interests to equality. This will not always be easy to do.

14.2.3.2 Democracy
The state may also interfere in the right to freedom of association in
order to further the goals of democracy. This may require organisations
in certain contexts to structure their internal affairs in a more
democratic and egalitarian fashion.52 In each case the question is to
what extent the state’s interest in the integrity of a democratic process
and in the maintenance and protection of a democratic society justifies
the limitation on the association’s right to order its affairs as it wishes
and to pursue the goals it was set up to pursue. The freedom of political
parties to arrange their internal affairs as they wish and to pursue the
ends they were set up to pursue is acutely affected by the need to
safeguard democracy. This is less evident if we start from the premise
that political parties and other associations are largely private entities
created to pursue private ends.53 However, if we start from the premise
that political parties and other associations are essential for a
functioning representative democracy, a more onerous burden will fall
on political parties to be structured along democratic lines and not to
pursue undemocratic ends.
In Germany, for example, the German Constitutional Court banned
the Socialist Reich Party (SRP) in 1952 and the Communist Party of
Germany (KPD) in 1956. According to article 21(2) of the German Basic
Law, parties which, by reason of their aims or the behaviour of their
members, seek to impair or destroy the free democratic order or to
endanger the existence of the Federal Republic of Germany are
unconstitutional.54 The German Parliament, therefore, may pass
legislation that requires political organisations to structure themselves
in a democratic and egalitarian way.
In the United States, in Buckley v Valeo,55 the US Supreme Court
confirmed the constitutionality of laws requiring compulsory disclosure
of the source of campaign contributions over $10 and of political
contributions over $100 per annum. The applicants in this case argued
that the laws violated the associational rights of minor parties and small
contributors. The Court dismissed this argument. In arriving at its
decision, the Court accepted that the associational rights were
infringed, but went on to find that this infringement was outweighed by
countervailing state interests.56 The societal interests included the need
to help the electorate evaluate the candidates standing for office by
disclosing the identity of their supporters, the need to avoid corruption
and the appearance of corruption, and the need to gather data required
to enforce the contribution limits set down in other laws.57
In Institute for Democracy in South Africa and Others v African
National Congress and Others,58 the Cape Town High Court adopted a
different approach. In this case, the Institute for Democracy in South
Africa (IDASA) brought an application in terms of the Promotion of
Access to Information Act (PAIA)59 against all the major political parties
for access to their donation records regarding the date of donation, the
name of the donor, the amount or value of the donation and the
conditions, if any, on which the donation was made or received. In the
main, the African National Congress (ANC) resisted the application on
the basis that there should be comprehensive legislation on this issue as
opposed to having to disclose information on an ad hoc basis.
The Court was of the opinion that the political parties for the
purposes of this application were to be regarded as private bodies. In
terms of the PAIA, an applicant had to demonstrate that they required
the information from the private body for the exercise or protection of
any rights.60 One of the arguments made by the applicants was that they
required the records to assist citizens to make more accurate political
choices and to choose between the various parties. Disclosure of
financial benefactors would place citizens in a better position to make
these decisions. The Court was of the view that this did not adequately
demonstrate ‘how the donation records would assist them in exercising
or protecting any of the rights on which they rely or why, in the absence
of these donation records, they are unable to exercise those rights’.61 It
went on to hold:
On the face of it, s 19(1) prevents any restrictions being imposed on a citizen’s
right of making political choices, such as forming a political party,
participating in the activities of and recruiting members for a party, and
campaigning for a political cause. Similarly, the right to ‘free, fair and regular
 elections’ enshrined in s 19(2) does not impose a duty on political parties to
disclose funding sources, nor does it afford citizens a right to gain access to
such records. The emphasis in s 19(2) lies upon the elections and the nature of
the electoral process and not so much upon the persons or parties
participating in those elections.62

The unjustifiably narrow approach adopted by the High Court in IDASA

was subsequently rejected by the Constitutional Court in its judgment
in My Vote Counts NPC v Minister of Justice and Correctional Services
and others.63 In this case, the Court held that the PAIA was
constitutionally deficient as it failed to provide for the recording,
preservation and disclosure of information on private funding of
political parties and independent candidates. The Court recognised that
it is necessary for candidates seeking public office to raise funds from
the private sector. But the funds raised bring into sharp focus the
interest of the electorate in the sources of those funds. The Court quoted
with approval comments from the US Supreme Court in Buckley64 that
access to information regarding campaign funding enables voters to
evaluate candidates more accurately than if they relied solely on party
labels and campaign speeches. If the voters are aware of the source of
the funds, they will be able to ascertain whether a candidate, if elected,
is advancing the interests of those that funded his or her campaigns.
Disclosure also deters both actual and perceived corruption.
The applicants in this case argued that the PAIA, which is the
legislation envisaged in section 32 of the Constitution, was deficient in
that it failed to enable voters to access information on the private
funding of political parties and independent candidates. In terms of
section 32 of the Constitution, a requester can request the information
from another person only if they are able to demonstrate that it is
reasonably needed or required for the ‘exercise and protection of any
rights.’ Any requester, therefore, must disclose the right that he or she is
seeking to exercise or protect.
Section 19 in broad terms protects the right of every citizen ‘to make
political choices’. Voting is fundamental to a functioning and vibrant
constitutional democracy. The Court held that what is envisaged in
section 19 is an informed exercise of the right to vote.65 The Court went
on to hold that public office should only be held only by those worthy of
representing the electorate after being properly examined and
evaluated.66 In order to enable voters to make the quality of decisions
that would advance our constitutional democracy, information relating
to the sources of funding of political parties and independent
candidates must be stored and be reasonably accessible to potential
voters.
The Court emphasised that the state is obliged to do everything
reasonably possible to give meaningful expression to the right to vote
and the right of access to information. Lack of transparency and
openness could result in some of the foundational values of the
Constitution being placed at the whim and mercy of unknown and
unscrupulous funders of political parties.67 It is for these reasons that
the Court concluded that information on private funding is critical ‘for
the proper exercise of the right to vote’. All any voter needs to do, to
establish that the information is required for the exercise or protection
of any rights, is to state that the information pertaining to the disclosure
of the sources of private funding is required to protect their right to vote.
The Constitutional Court held that political candidates should have
virtually unrestrained access to each other’s funding information. In
addition, the media and academia should have similar access to this
information. Media, NGOs, political parties and academia are able to
rely on section 16(1) of the Constitution which protects the right to
freedom of expression. Obtaining information on the sources of
political funding would enable these persons and bodies to exercise
and protect their right to freedom of expression thus enabling the entire
electorate to meaningfully participate in elections.
The Court concluded that the disclosure responsibilities in the PAIA
do not extend either to political parties or to independent candidates
and, therefore, are constitutionally deficient. The inconsistency with the
Constitution lies in the fact that PAIA did not require that ‘information
on the private funding of political parties and independent candidates
be recorded and preserved’ and be made reasonably accessible.68
Access must be free flowing and not dependent on the discretion of a
Minister or state official. The general principle that the Court laid down
was that the state must ensure that ‘the information [is] recorded,
preserved and disclosable in a reasonably accessible manner and that it
is not [being] paid for’.69 This is essential in order to enable voters to
make political choices and to participate in elections effectively. This
then imposes a constitutional duty on political parties and independent
candidates to record, preserve and disclose information relating to
private funding received by them. Having established this general
principle, the Court left it to the legislature to decide on how best to give
effect to this constitutional obligation.
The concurring judgment emphasised70 that the right to vote is also
the right of the whole citizenry and to view it solely as an individual
right diminishes the concept of participatory democracy. The entire
citizenry has the right to free and fair elections. If the media cannot
access information relating to private funding, then the elections may
not be free and fair. Thus, when the media seeks access to information
pertaining to private funding, they can justify it on the basis that they
are acting in the public interest for the entire citizenry.

Party-political funding and the curse of state

capture
The State Capture Inquiry chaired by Zondo DCJ has
heard evidence of state-owned enterprises and organs
of state such as the Department of Correctional
Services being captured by private interests. Do you
think that these practices are less likely to occur if
political parties are obliged to reveal the sources of
their funding? What of the argument that the funders
of opposition and smaller parties are likely to be
unfairly discriminated against in the allocation of
tenders by partisan public officials if they are identified
as supporters of the opposition?

In Ramakatsa and Others v Magashule and Others, the Constitutional

Court found that the Constitution requires political parties to act
lawfully.71 In the context of section 19 of the Constitution, which
guarantees the right of every citizen to participate freely in the activities
of a political party, the Court found that there was a duty on every
political party ‘to act lawfully and in accordance with its own
constitution’.72 This means that the Constitution gives every member of
every political party the right to exact compliance with the constitution
of a political party by the leadership of that party. Courts, therefore, can
scrutinise a political party’s constitution to establish whether that party
has acted in accordance with its own constitution and may set aside
decisions of that party where it has failed to adhere to its own
constitution.73 The Court emphasised that in South Africa’s system of
democracy, political parties ‘occupy the centre stage and play a vital
part in facilitating the exercise of political rights’.74 Therefore, political
parties are indispensable conduits for the enjoyment of some of the
rights included in the Bill of Rights.75
Arguably, the implication of this judgment is that political parties
must operate in an essentially democratic manner and that political
parties cannot pursue policies that, at their core, are aimed at
destroying the constitutional democracy established by the
Constitution. However, the Constitutional Court has not provided a
definitive answer on how to approach the question of political parties
whose aim is to overthrow our constitutional democracy.

Is the infringement of the right to freedom of

association justifiable in the interests of
preserving constitutional democracy in South
Africa?
Some political parties exercise significant power in
South Africa. In 2013, after Mr Julius Malema was
expelled from the ANC, he came together with other
interested individuals and formed a new political party
called the Economic Freedom Fighters (EFF). The
Constitution of the EFF sets out its aims as follows:
1. ECONOMIC FREEDOM FIGHTERS (EFF) is a Political
organization styled as a Political Party which seeks
to act in the interests of all South Africans striving
for ECONOMIC EMANCIPATION IN OUR LIFE TIME.
2. The EFF is anti-capitalist, anti-racist, anti-sexist
and anti-imperialist in its world outlook and is
driven by sound democratic socialist values where
the leadership is accountable to the membership
which elected it.
3. The basic programme of the EFF is the complete
overthrow of the neo liberal anti-black state as well
as the bourgeoisie and all other exploiting classes;
the establishment of the dictatorship of the people
in place of the dictatorship of the bourgeoisie and
the triumph of socialism over capitalism. The
ultimate aim of the EFF is the realisation of
socialism through people’s power and the
establishment of a state that responds to the
needs of its people.
4. The EFF is a vigorous vanguard organisation
leading the revolutionary masses in the fight
against the class enemy.
5. The EFF takes socialism as the theoretical basis
guiding its thinking and development of its political
line and in this respect identifies itself as a
MARXIST, LENINIST, and FANONIAN organisation.
6. Members of EFF, who dedicate their lives to the
struggle for socialism must be resolute, fearless
and surmount every difficulty to win victory! 76

The EFF Constitution thus states that one of its aims is

to overthrow the current state and replace it with a
‘dictatorship of the people’. Any attempt to prohibit the
 EFF from participating in elections or from operating in
South Africa in line with these goals will undoubtedly
be challenged on the grounds that it infringes the right
of everyone to freedom of association, the right of
citizens to form a political party and to participate in
the activities of a political party. The question that will
face a court in such an event is whether the
infringement of the rights is justifiable in the interests
of preserving constitutional democracy in South Africa.

14.2.4 Balancing rights

It is not uncommon for the right to freedom of association to clash with
other rights and the adjudicating body then has to strike an appropriate
balance between the competing rights. In Forum for Black Journalists v
Katy Katopodis,77 the Appeal Committee of the South African Human
Rights Commission (SAHRC) had to consider whether a group of black
journalists could constitutionally exclude white journalists from a
meeting of their organisation. The primary objective of the Forum for
Black Journalists (FBJ) was to uplift ‘black journalists in general and the
African in particular’.78 As a part of its relaunch, the FBJ organised an
imbizo and invited Mr Jabob Zuma as the keynote speaker. At that point
in time, Mr Zuma had been elected as President of the ANC, but not yet
as President of South Africa. Apart from Mr Zuma, the FBJ also invited
journalists to attend the imbizo, irrespective of whether they were
members of the organisation or not. However, these invitations were
sent to black journalists only. White journalists who attempted to attend
the imbizo were either denied entry or requested to leave.
Following the imbizo, Ms Katopodis, who was the news editor of
Talk Radio 702 and 94.7 Highveld Stereo, lodged a complaint of unfair
discrimination on the basis of race with the SAHRC. In response, the
FBJ argued that the right to associate, especially of a private body,
includes the right to exclude. All the FBJ had to demonstrate was a
rational connection between the discriminatory policy and the
association’s ends. It justified its closed membership by pointing to the
legitimate objective of preventing the dilution of its voice in its pursuit
of substantive equality.
The Appeal Committee of the SAHRC found that the FBJ could not
be described as an intimate or private association as its membership
was open to all black journalists in the country.79 It lay on the
continuum between an intimate or private organisation and an overtly
public organisation.80 The more public an organisation is, the more
difficult it is to justify exclusions in furtherance of the freedom of
association.81 The Appeal Committee found that the purpose of uplifting
black journalists in general and Africans in particular was a legitimate
objective.82 In defence of its racially exclusive admissions policy, the FBJ
relied heavily on their right to freedom of association. The Committee
reasoned as follows:
The issue before us is whether the FBJ acted in a constitutionally impermissible
fashion when it decided to exclude white journalists from its membership and
prevented them from attending the Imbizo. The assertion by the respondent is
that the rights to dignity and not to be subjected to unfair discrimination on the
basis of race have been infringed by the policies and practices of the appellant.

Not admitting white journalists on the basis of their race to the Imbizo and
excluding them from membership of the FBJ on the same basis is clearly
invasive of their right to dignity. The issue is whether the benefits that accrue to
the organisation justifies [sic] this intrusion …

… , the Supreme Court of Appeal in Midi Television (Pty) Limited t/a e-tv v
Director of Public Prosecutions83 had to reconcile and balance the freedom of
expression and the right to a fair trial. The following was stated:

Where the constitutional rights themselves have the potential to be

mutually limiting – in that the full enjoyment of one necessarily curtails
the full enjoyment of another and vice versa – a court must necessarily
reconcile them. They cannot be reconciled by purporting to weigh the
value of one right against the value of another and then preferring the
right that is considered to be more valued, and jettisoning the other,
because all protected rights have equal value. They are rather to be
reconciled by recognising a limitation upon the exercise of one right to the
extent that it is necessary to do so in order to accommodate the exercise of
the other (or in some cases, by recognising an appropriate limitation upon
the exercise of both rights) according to what is required by the particular
circumstances and within the constraints that are imposed by Section
36.84
The judgment of the Appeal Committee of the SAHRC went on to state:
In determining the extent to which the full exercise of one right or the other or
both of them might need to be curtailed in order to reconcile them what needs
to be compared with one another are the ‘extent of the limitation’ that is placed
upon the particular right, on the one hand, and the ‘purpose, importance and
effect of the intrusion’, on the other hand. To the extent that anything needs to
be weighed in making that evaluation it is not the relative values of the rights
themselves that are weighed (I have said that all protected rights have equal
value) but it is rather the benefit that flows from allowing the intrusion that is
to be weighed against the loss that the intrusion will entail. It is only if the
particular loss is outweighed by the particular benefit, to an extent that meets
the standard that is set by s 36, that the law will recognise the validity of the
intrusion.

Thus the submission by the appellant that it can adopt a racially exclusive
membership policy provided that it demonstrates a rational connection
between its discriminatory policy and the association’s ends is inconsistent
with comments made in the VA report and with the dicta from Midi Television
quoted above. The FBJ has the right to form an association to uplift black
journalists and exclude persons whose objectives are inimical to its founding
values. FBJ used race as the criterion and formed the view that all white
journalists should be excluded from their organisation. No argument has been
made as to why the less intrusive admission policy which required a full
commitment to the values and goals of the organisation would not have been
sufficient to protect its distinct ‘voice’ and identity. The imprecise and blunt
instrument of racial exclusivity was relied upon notwithstanding the egregious
impact of exclusions upon people who may have supported the broader
objectives of the organisation. There is nothing before us which leads us to
conclude that the racially exclusive membership policies and practices bring a
legitimate benefit to the FBJ which justifies the infringement of the right to
dignity of the persons excluded on the basis of race. In the circumstances, we
find that the exclusion of the white journalists both from the Imbizo and from
membership of the FBJ is not justified in terms of section 36 of the
Constitution.85

The Appeal Committee of the SAHRC thus found against the FBJ. As the
extracts set out above illustrate, it is necessary to determine what
benefit accrues as a consequence of the exclusion. The benefit must
then be weighed against the cost occasioned by such exclusion. The
courts will sanction the exclusion if the benefit outweighs the cost of the
exclusion and is a reasonable and proportionate response.
When can the right to freedom of association
be used to justifiably exclude others from
associating with the organisation?
This question is a source of great jurisprudential and
moral anxiety, partly because the ability to associate
holds potential financial and social benefits. Excluding
some from these benefits on the basis of personal
attributes or characteristics may therefore harm those
who are excluded.
White suggests certain rules to deal with this
difficult question.86 The first rule or guideline White
suggests is that an exclusionary rule is presumptively
legitimate if it is purpose-protecting. In other words, if an
exclusionary rule is aimed at protecting the very
purpose for which the association was created, it will
be presumed to be legitimate.87
However, White suggests a second rule, namely
that if an exclusionary rule is opportunity-depriving, the
rule must presumptively be viewed as not being
legitimate. In other words, if by excluding individuals
from the association they are potentially deprived of
opportunities, it will be difficult to justify the
exclusion.88
A third rule is that the presumption of legitimate
exclusion is especially strong if the rule is integrity-
protecting. In other words, where the formation of an
association is particularly important to allow an
individual to exercise his or her liberties of conscience
or expression, then there will be a strong assumption
that the exclusionary rule that safeguards this
associational space should be held as being
legitimate.89
Of course, it will be clear that these three rules
could easily be in tension with one another. An
 exclusionary rule that is purpose-protecting as well as
integrity-protecting can be so drastically opportunity-
depriving that it would not be held to be valid. For
example, a rule that allows a religious school to
exclude female learners on the grounds that male and
female learners must be taught separately may be
both purpose-protecting and integrity-protecting. But
where that school offers a high-quality education and
provides its graduates with opportunities in life that are
not easily provided to others in the same community,
the rule may also be opportunity-depriving. This is
because female learners will be deprived in a drastic
manner of some of the opportunities that are available
to male learners. Consequently, it is far from clear
whether such a rule conforms with the right to freedom
of association.

14.3 Freedom of religion, belief and opinion

14.3.1 Introduction
Freedom of religion and conscience – the freedom to hold views about
religious and other moral issues and the freedom to practise those
beliefs – goes to the heart of what it means to be human in a modern
democracy. In the open and democratic society contemplated by the
Constitution, both the religious beliefs held by the great majority of
South Africans as well as the beliefs of non-believers and minority faiths
must be fully respected.90 As the Constitutional Court pointed out in
Minister of Home Affairs and Another v Fourie and Another:
For many believers, their relationship with God or creation is central to all their
activities. It concerns their capacity to relate in an intensely meaningful
fashion to their sense of themselves, their community and their universe. For
millions in all walks of life, religion provides support and nurture and a
framework for individual and social stability and growth. Religious belief has
the capacity to awaken concepts of self-worth and human dignity which form
 the cornerstone of human rights. Such belief affects the believer’s view of
society and founds a distinction between right and wrong. It expresses itself in
the affirmation and continuity of powerful traditions that frequently have an
ancient character transcending historical epochs and national boundaries. For
believers, then, what is at stake is not merely a question of convenience or
comfort, but an intensely held sense about what constitutes the good and
proper life and their place in creation.91

However, non-believers may hold similarly strong and profound views

about the meaning of their lives not based on religious beliefs. This
means that religious beliefs or the absence of such beliefs – however
honestly and sincerely held – ‘cannot influence what the Constitution
dictates’.92 This conundrum highlights the fact that freedom of religion
and conscience is a right that demands serious engagement with the
notion of diversity: how to accommodate different and often
diametrically opposed beliefs and views about the world, while
respecting and accommodating these diverse beliefs and views.
To accommodate diversity in the realm of belief, section 15(1) of the
Bill of Rights guarantees the right of everyone to ‘freedom of
conscience, religion, thought, belief and opinion’ while section 15(2)
deals with the circumstances under which religious observance may be
conducted in state or state-aided institutions. In a heterogeneous and
multicultural society like South Africa, the protection of the right to
freedom of conscience, religion, thought, belief and opinion takes on a
special significance. It signals the Constitution’s unique concern with
the protection of people with diverse beliefs and opinions. It recognises
the importance of accommodating the views, opinions and practices of
people with diverse world views and religious beliefs that will often be
in conflict with one another. This right contained in section 15,
therefore, is an important right through which we accommodate and
carefully manage diversity in our society.
In this regard, the decision to group together the freedom of
conscience, religion, thought, belief and opinion is significant. The
deliberate clustering of these rights signifies the protection of the right
to hold the religious beliefs of a person’s choice, together with the right
to entertain agnostic or atheistic views and other beliefs. It thus protects
the right to believe in a particular God or Gods and the religious
teachings associated with a belief in that God or Gods; the right to
remain uncertain about believing in a God or Gods and the religious
teachings associated with a belief in that God or Gods; as well as the
right not to believe in any God at all. In other words, the fact that the
right protects freedom of conscience, religion, thought, belief and
opinion indicates that the scope of its protection journeys beyond
protecting the right to believe in a supreme being.93
The 2016 Community Survey contains the latest figures available
from Statistics South Africa and provides a breakdown of the
distribution of religious beliefs in South Africa.

Table 14.1 Distribution of religious beliefs: CS 2016

Religious belief 2016: Number94 2016: %

Christianity 43 423 717 78,03%

Islam 892 685 1,60%

Traditional African 2 454 887 4,41%

Hinduism 561 268 1,01%

Buddhism 24 808 0,05%

Bahai 6 881 0,01%

Judaism 49 470 0,09%

Atheism 52 598 0,10%

Agnostic 32 944 0,06%

No religious belief 5 964 892 10,72%

Other 1 482 210 2,66%

Don’t know 704 358 1,27%

Total 55 650 716 100%

However, it is not only the right to believe or not to believe that is

protected by section 15 of the Bill of Rights. Section 15 also protects the
right to act in accordance with those beliefs or non-beliefs and for a
person to organise his or her life in a manner that demonstrates
allegiance to his or her belief system. As pointed out by Sachs J in
Christian Education South Africa v Minister of Education, the right of an
individual to act or not to act in accordance with his or her beliefs is one
of the key ingredients of a person’s human dignity.95 For many people,
their relationship with their God or creator is central to their being and
often influences much of their interaction both with their sectarian
peers and with secular society.96 For others, their rejection of the idea of
a higher being or creator is central to their personality.
The persecution of people because of their religious beliefs or their
refusal to believe has been the cause of intense conflict, upheaval and
strife. Such strife is often caused when the state treats one religion more
favourably than other religions or when the state treats religion more
favourably than non-religion. In this regard, the manner in which the
apartheid state treated religion during the apartheid era is significant.
Prior to 1994, the apartheid state officially endorsed a particular version
of Christianity and the state was often described as a Christian
nationalist state.97 Apart from merely endorsing a particular version of
Christianity, the apartheid state also passed several laws to promote its
specific conception of the Christian religion.98 Primary and secondary
education in public schools reserved for white children was based on
the principle of Christian national education while education in public
schools reserved for black children had to have a Christian character.99
The apartheid state also refused to recognise the validity of marriages
that did not conform to the Christian prototype.100 The judiciary, too,
was not free from demonstrating a preference for Christianity. In 1917, a
South African judge even identified Christianity with what he called
‘civilized peoples’.101
This unfortunate history of preferential treatment for a specific
version of Christianity above other religions and non-religion does not
mean, however, that Christianity should not be respected and protected
as the dominant religion in South Africa in the post-apartheid era. In
fact, although the Constitutional Court has insisted that the rights of
non-believers and minority faiths must be fully respected, it has also
emphasised the need to respect the religious beliefs held by the
majority of South Africans.102 The Constitutional Court has pointed out
that while religion is an intensely personal issue, it would nevertheless
not be appropriate in all cases to relegate religious practices and
observance to the private sphere.103
Religious bodies play a large and important part in public life
through schools, hospitals and poverty relief programmes. In addition,
religious bodies ‘command ethical behaviour from their members and
bear witness to the exercise of power by state and private agencies’.104
Religious bodies also ‘promote music, art and theatre’ and ‘provide
halls for community activities’.105 As such, they form part of the very
fabric of society.106 Although the Court has held that the large and
important role that religious bodies play in society must be recognised,
it has also warned that this must be done in a manner that does not
infringe on the rights of those who do not share the beliefs of the
majority religion as ‘[m]ajoritarian opinion can often be harsh to
minorities that exist outside the mainstream’ (our emphasis).107 Instead,
a balance must be struck between recognising and respecting the
religious beliefs of the majority, on the one hand, and protecting those
people and groups whose views do not conform to those of the
majority, on the other hand. The Court stated:
In the open and democratic society contemplated by the Constitution there
must be mutually respectful co-existence between the secular and the sacred.
The function of the Court is to recognise the sphere which each inhabits, not to
force the one into the sphere of the other. Provided there is no prejudice to the
fundamental rights of any person or group, the law will legitimately
acknowledge a diversity of strongly-held opinions on matters of great public
controversy. I stress the qualification that there must be no prejudice to basic
rights.108

By recognising the need to accommodate both the secular and the

sacred within the framework of managing a diverse society, section 15
of the Constitution does not require a strict separation between the
state and religious institutions and organisations. In the following
sections we discuss the scope and content of the right to freedom of
conscience and religion. We explore the ways in which the religious
beliefs of the majority can be respected and recognised within the
constitutional framework while also providing protection for those
people who adhere to minority beliefs and for those people who are not
religious at all.

The nuanced relationship between the secular

and the sectarian spheres of our society
The Constitutional Court considered the nuanced
relationship between the secular and the sectarian
spheres of our society in Fourie, a case that dealt with
the recognition of same-sex marriage. The Court had to
determine whether the non-recognition of same-sex
marriages was inconsistent with the Constitution. If so,
the Court then had to determine what needed to be
done to remedy the situation.
One of the arguments made was that if the existing
law was under-inclusive by not recognising same-sex
unions, this gap should be filled by providing an
appropriate alternative form of recognition to same-sex
unions and not by accommodating these unions within
the existing institution of marriage. Same-sex unions
should not be accommodated within the existing
institution of marriage, it was submitted, because
marriage is restricted to the union of one man and one
woman. To extend the definition of marriage to include
same-sex unions, it was submitted further, would
amount to a significant infringement of the right to
freedom of religion of those people who believed in the
religious texts that defined marriage as the union of
one man and one women.
The Court recognised the broad and important role
that religion plays in the life of society through the
provision of schools and hospitals, by poverty
alleviation programmes and other initiatives that enrich
people’s lives.109 According to the Court, these
activities form part of the fabric of a diversified society
and must be recognised as such.110 However, the Court
reasoned that this did not mean that religious texts
must be used to interpret the Constitution. There had
to be a mutually respectful co-existence between the
secular and the sacred.111 The state should not
intervene in the spiritual or sacred sphere by
pronouncing on religious texts or by insisting that all
religions solemnise same-sex marriages. Similarly,
when the state affords same-sex couples the same
status, entitlements and responsibilities as
heterosexual couples, it does not impinge on the right
of religious organisations that do not wish to solemnise
same-sex marriages.112 By doing so, it is simply
functioning within the secular sphere over which the
Constitution is supreme.113 Thus, the rights of the
religious groups functioning within their spiritual sphere
will not be affected by the recognition of same-sex
unions by the law.114
Subsequent to the Fourie judgment, Parliament
passed the Civil Union Act.115 This Act recognises
same-sex unions which can now be described as
marriages. When it passed this Act, Parliament
accepted that having an alternative such as a civil
union for same-sex couples would amount to
segregation and would continue to reinforce negative
stereotypes. Parliament, therefore, decided that parties
could refer to these unions as marriages if they choose
to do so. However, the Civil Union Act also allows
religious denominations to opt out of solemnising
same-sex marriages. The Act allows such religious
denominations to adhere to their particular views on
the nature of marriage while accommodating the need
to respect the right to equality of gay men and
lesbians.
14.3.2 The scope and content of section 15(1) of the
Constitution
It is far from clear what the exact scope and content of the right to
freedom of religion protected in section 15(1) is. This is because a
divided Constitutional Court differed sharply on the scope and content
of the right in its very first religious freedom case, namely S v Lawrence;
S v Negal; S v Solberg.116
The starting point for understanding the scope and content of the
right to freedom of religion – agreed on by all the judges of the
Constitutional Court – is that our Constitution does not require a strict
separation between the state and religious bodies.117 This approach
differs markedly from the approach followed in the United States (US)
Constitution. The First Amendment to the US Constitution provides,
inter alia, that ‘Congress shall make no law respecting an establishment
of religion’. This ‘establishment clause’, the Supreme Court has held,
prohibits the state from setting up a church or passing laws which aid
one religion, aid all religions or prefer one religion over another. This is
because it is aimed at erecting ‘a wall of separation between church and
State’.118 As Chaskalson P explained in the Lawrence case, the right to
freedom of religion in the South African Constitution – unlike the US –
does not include an ‘establishment clause’.119 The US view that a wall of
separation should be erected between religion and the state, therefore,
is not applicable here.120 To read such a requirement into section 15:
would have far reaching implications beyond the apparent scope and purpose
of section 14 [now 15]. If such obligations on the part of the state are to be read
into section 14 [now section 15] does this mean that Christmas Day and Easter
Friday can no longer be public holidays, that ‘Family Day’ is suspect because it
falls on Easter Monday, that the SABC as public broadcaster cannot broadcast
church services (as it does regularly on Sunday mornings, though it does not
regularly broadcast Muslim services on Fridays or Jewish services on Saturdays
or Hindu services on any particular day of the week), that its daily religious
programmes must be cancelled, and that state subsidies to denominational
schools are prohibited? These examples can be multiplied by reference to the
extremely complex United States law which has developed around the
‘establishment clause’.121
The reason for rejecting the US view can be found in section 15(2) of the
Constitution (discussed below) which allows for religious observances
to be conducted at state or state-aided institutions. This means that in
the South African context, the right to freedom of religion will not
automatically be infringed every time the state provides a benefit to a
specific religion or all religions in relation to non-religious groups. The
state is thus allowed to provide specific benefits to a religious institution
and to engage in activities that demonstrate reverence or respect for
religion in general.
It is within this broader context that the scope and content of the
South African guarantee of freedom of religion must be understood.
Drawing on the jurisprudence of the Canadian Supreme Court, all the
judges of the Constitutional Court also agreed that the essence of the
right to freedom of religion involves: 122
• ‘the right to entertain such religious beliefs as a person chooses’: In
other words, people have the freedom to choose their religious
beliefs freely and openly. This means that an individual must be free
from direct or indirect pressure by the state when choosing religious
beliefs. The state, therefore, cannot use religion as a basis to employ
someone or provide them with other benefits or protect them from
harm. In addition, it also means that religious organisations cannot
prevent people from leaving their fold and converting to other
religions.
• ‘the right to declare religious beliefs openly and without fear of
hindrance or reprisal’: In other words, people have the freedom to
express their beliefs in public. This means that people should never
be compelled to worship in private and the right to do so in public is
an acknowledgement that the broader society recognises and
endorses this right. In a democracy that celebrates diversity,
worshippers should be able to manifest their religious beliefs and
practices publicly.
• ‘the right to manifest religious belief by worship and practice by
teaching and dissemination’: This means that people have the
freedom to engage in all the practices associated with their religion.
For example, members of the Muslim and Jewish faiths may
 circumcise baby boys as part of their religious practices and
members of the Hindu faith may walk on burning coals as a form of
penance and in worship of the goddess Draupathi who had to walk
on burning coal to prove her fidelity. These practices are protected
even though they may be disapproved of or questioned by the
majority. This is because they are an important part of the religious
beliefs of Muslims, Jews and Hindus respectively.

In short, all the justices of the Constitutional Court agreed that the right
to freedom of religion is protected if there is an ‘absence of coercion or
constraint’ on a particular religious belief or practice.123 Freedom of
religion will ‘be impaired by measures that force people to act or refrain
from acting in a manner contrary to their religious [and, we assume,
other non-religious] beliefs’.124 Subsequent Constitutional Court
judgments essentially endorsed this view of the scope of the right to
freedom of religion.125 The Court also noted that the right to freedom of
religion would not only be infringed by acts of direct coercion. Actions
by the state could also run the risk of indirectly coercing individuals into
certain religious beliefs and practices. This was a particular danger
when the power, prestige and financial support of government were
placed behind a particular religious belief as it would place indirect
coercive pressure on religious minorities to conform to the prevailing
officially approved religion.126
A far more difficult question that arose in the Lawrence case was
whether the state was required to treat all religions in a fair and
equitable manner. It is on this issue that the judges of the
Constitutional Court differed. Chaskalson P, writing for four justices of
the Constitutional Court, rejected the notion that the right to freedom of
religion required the state to act in an even-handed or equitable
manner towards all religions.127 O’Regan J, writing for three justices of
the Constitutional Court, however, argued that the right to freedom of
religion required more than the absence of direct or indirect coercion to
be fully and effectively protected.128 This additional requirement of
fairness or equity, argued O’Regan J, reflected ‘an important component
of the conception of freedom of religion contained in our
Constitution’.129 She stated:
Our society possesses a rich and diverse range of religions. Although the state
is permitted to allow religious observances, it is not permitted to act
inequitably. In determining what is meant by inequity in this context, it must
be remembered that the question of voluntary participation is a consideration
separately identified in section 14(2) [now section 15(2)]. The requirement of
equity must therefore be something in addition to the requirement of
voluntariness. It seems to me that, at the least, the requirement of equity
demands the state act even-handedly in relation to different religions.130

This did not mean complete neutrality but did require that observances
should not favour one religion over another.131 This judgment went on to
state that the purpose of the right was a rejection of past practices when
Christianity was deemed to be the favoured religion.132 Endorsement by
the state of any one religion would not be permitted as it would result in
indirect coercion and would amount to a threat to those wishing to
exercise other religious beliefs.133 O’Regan J concluded by holding that it
is not sufficient that there is no direct coercion of religious beliefs. In
addition, there had to be no inequitable or unfair preference of one
religion over others.134
In a separate judgment, Sachs J appeared to agree with the approach
adopted by O’Regan J when he held that the right to religious freedom
does not only prohibit the state from forcing people to act or refrain
from acting in a manner contrary to their religious beliefs, but also from
endorsing or favouring one particular faith, for example Christianity,
over all others:
By endorsing a particular faith as a direct and sectarian source of values for
legislation binding on the whole nation, [the State] exceeds the competence
granted to it by the Constitution. Even if there is no compulsory requirement to
observe or not to observe a particular religious practice, the effect is to divide
the nation into insiders who belong, and outsiders who are tolerated. This is
impermissible in the multi-faith, heterodox society contemplated by our
Constitution.135

The difference between these positions is important and could lead to

different results in a particular case. Insisting on the requirement of
equity would require the state to act in a more even-handed manner
regarding the various religions. For example, the state officially
recognises certain Christian religious holidays, such as Easter and
Christmas for example, but refrains from officially recognising religious
holidays of other religions. It could be argued that the state is not
treating the various religions in an equitable manner as it is endorsing
or favouring the Christian religion over other religions and over non-
religion.

Defining the right to freedom of religion

In Lawrence, the applicants, who were supermarket
owners, sought to challenge certain sections of the
Liquor Act136 which prohibited the sale of alcohol on
closed days. These days were defined as Sundays,
Good Friday and Christmas. They argued that the
prohibition on the sale of alcohol on the closed days
infringed the religious beliefs of non-Christians by
forcing them to observe Christian holidays.
Chaskalson P, writing for himself and three other
justices, and applying the more restrictive definition of
the right to freedom of religion discussed above, held
that a Sunday had become a day of rest for most
South Africans and was not solely a Christian
holiday.137 He held that the supermarket owners were
able to ply their trade on Sundays and were only
prohibited from selling wine.138 Chaskalson P held that
the applicants did not satisfy the court that this limited
restriction amounted to a violation of the right to
freedom of religion because the impugned law did not,
in fact, coerce anyone into observing or not observing
a particular religious belief or practice.139
In Chaskalson P’s opinion, the right to freedom of
religion cannot be read as obliging the state to abstain
from any action that may advance or inhibit religion.140
However, he went on to hold that in some
circumstances, the advancement or endorsement of a
particular religion would have the effect of coercing a
person, either directly or indirectly, to observe or abide
by the practices of that religion.141 If such coercion is
established, it would amount to an infringement of the
right to freedom of religion.142 This judgment found on
the facts that the connection between the prohibition
on the sale of wine on Sundays and the Christian
religion was very tenuous. The Liquor Act, therefore,
did not advance Christianity and could not be regarded
as coercive in as far as non-Christians were concerned.
Hence, he came to the conclusion that the right to
freedom of religion was not infringed.143
As we have noted, O’Regan J framed the scope
and content of the right to freedom of religion more
broadly.144 While acknowledging that the Constitution
does not require a strict separation between the state
and religious institutions, her judgment held that apart
from being non-coercive, legislation may not favour
one religion over others. This is because fairness and
even-handedness in relation to diverse religions is a
necessary component of the right to freedom of
religion. Applying these principles to the facts, O’Regan
J found that the prohibition on the sale of wine on days
that are important to Christians endorsed Christianity
and thus infringed the right to freedom of religion. In
addition, O’Regan J found that this infringement was
not justifiable. The Liquor Act, therefore, was
unconstitutional and invalid.
In his separate judgment, Sachs J also found that
the Liquor Act infringed the right to freedom of religion
because it clearly endorsed Christianity. Unlike
O’Regan J, however, he went on to find that this
infringement was justifiable and, consequently, that the
 Liquor Act was constitutionally valid.145 Sachs J,
therefore, agreed with the order issued by Chaskalson
P.

Apart from the points set out above, it is also important to note that
religious activities often take place in a communal context. In
recognition of this fact, section 31 of the Constitution adds to the scope
and content of the right to freedom of religion. Section 31 of the
Constitution deals with the right of religious communities to practise
their religion together with other members of their community. The
right can be optimally exercised only if people of similar beliefs or faiths
can assemble, jointly express their beliefs, advance their religion and
regulate their affairs. The right to religious freedom, therefore, also
includes the right to interact with fellow believers. This means an
individual religious denomination must have the right – to the extent
that this does not infringe other rights – to decide for itself on the rules
for membership as well as the rules about the behaviour of the
members of the religious denomination. A fuller discussion of the
association rights contained in section 31 follows later in the chapter.
In the context of section 15, it is unnecessary to focus on whether a
specific belief is religious in nature or not as the section protects not
only the right to freedom of religion but also the right to freedom of
conscience, thought, belief and opinion. Nevertheless, it has been
suggested that to qualify as a ‘religious belief system’ a religion should
have some of the following features: ‘belief in a supreme being, belief in
transcendent reality, a moral code, a world view accounting for people’s
role in the universe, sacred rituals, worship and prayers, a sacred text,
and membership in a social organisation’.146
In the US context, it was held that the test should not be whether the
belief is objectively reasonable, but rather whether it forms part of the
practices and beliefs of that religion and whether persons belonging to
that religion genuinely and sincerely embrace the practice. Religious
beliefs are by their very nature subjective and courts will not easily
conclude that a specific belief is not religious in nature or is not
sincerely held. In addition, the courts are generally reluctant to make
determinations as to whether the practice being restricted is central or
foundational to the religious beliefs. It is not the function of the court to
interpret religious texts or dogma. As O’Connor J, a former justice of the
US Supreme Court, put it:
The dissent offers us the prospect of this court holding that some sincerely held
religious beliefs and practices are not ‘central’ to certain religions, despite the
protestations to the contrary from religious observers who brought the lawsuit.
In other words, the dissent’s approach would require us to rule that some
religious adherents misunderstand their own religious beliefs. We think that
such an approach cannot be squared with the Constitution or with our
precedents, and that it would cast the judiciary in a role that we never intended
to play.147

Ngcobo J expressed similar sentiments in his dissenting judgment in

Prince v President of the Law Society of the Cape of Good Hope.148 In this
case, the issue was whether section 4(b) of the Drugs and Drug
Trafficking Act149 and section 22A(10) of the Medicines and Related
Substances Control Act150 were inconsistent with the Constitution
because they did not grant an exemption to Rastafarians to possess and
use cannabis for religious purposes. Ngcobo J cautioned against being
overly concerned with whether a particular practice is central to the
religion, stating that:
Apart from this, as a general matter, the Court should not be concerned with
questions whether, as a matter of religious doctrine, a particular practice is
central to the religion. Religion is a matter of faith and belief. The beliefs that
believers hold sacred and thus central to their religious faith may strike non-
believers as bizarre, illogical or irrational. Human beings may freely believe in
what they cannot prove. Yet, that their beliefs are bizarre, illogical or irrational
to others or are incapable of scientific proof, does not detract from the fact that
these are religious beliefs for the purposes of enjoying the protection
guaranteed by the right to freedom of religion. The believers should not be put
to the proof of their beliefs or faith. For this reason, it is undesirable for courts
to enter into the debate whether a particular practice is central to a religion
unless there is a genuine dispute as to the centrality of the practice.151

Although the Constitutional Court refused to declare section 4(b) of the

Drugs and Drug Trafficking Act and section 22A(10) of the Medicines
and Related Substances Control Act unconstitutional on the grounds
that they infringed the right to religious freedom in Prince v President of
the Law Society of the Cape of Good Hope, it subsequently did declare
section 4(b) and section 5(b) of the Drugs and Drug Trafficking Act as
well as section 22A(9) of the Medicines and Related Substances Control
Act (which prohibited not only the use and possession, but also the
cultivation of cannabis in private for personal consumption by an adult
in private), to be unconstitutional on the grounds that they infringed
the right to privacy in the Minister of Justice and Constitutional
Development and Others v Prince and Others.152 The Court, however, left
it to Parliament to determine the quantity of cannabis an adult person
may cultivate, possess and use as part of personal usage. It is important
to emphasise that it is still a criminal offence for persons under the age
of 18 to use cannabis and it remains an offence to do so in public. It is
also a serious offence to deal in this substance.

Determining whether a specific belief is

religious or not
The fact that it is very difficult to determine whether a
specific belief is religious in nature or not is clearly
illustrated by the examples set out below.
A ‘church’ whose central tenet is the right to file-share has been
formally recognised by the Swedish government.

The Church of Kopimism claims that ‘kopyacting’ – sharing

information through copying – is akin to a religious service.

The ‘spiritual leader’ of the church said recognition was a ‘large

step’. But others were less enthusiastic and said the church would
do little to halt the global crackdown on piracy.

The Swedish government agency Kammarkollegiet finally

registered the Church of Kopimism as a religious organisation
shortly before Christmas, the group said.

‘We had to apply three times,’ said Gustav Nipe, chairman of the
organisation.

The church, which holds CTRL+C and CTRL+V (shortcuts for copy
and paste) as sacred symbols, does not directly promote illegal
file sharing, focusing instead on the open distribution of
knowledge to all.

It was founded by 19-year-old philosophy student and leader Isak

Gerson. He hopes that file-sharing will now be given religious
protection.

‘For the Church of Kopimism, information is holy and copying is a

sacrament. Information holds a value, in itself and in what it
contains and the value multiplies through copying. Therefore
copying is central for the organisation and its members,’ he said
in a statement.

‘Being recognised by the state of Sweden is a large step for all of

Kopimi. Hopefully this is one step towards the day when we can
live out our faith without fear of persecution,’ he added.153

Like the Church of Kopimism, the Church of the Flying

Spaghetti Monster has also been recognised as a
religion, although this time in New Zealand, where its
representatives are allowed to officiate at weddings.
This church was established in 2005 when Bobby
Henderson, a recent physics graduate from the
University of Oregon, published an open letter. In his
letter, Henderson criticised the Kansas State Board of
Education’s decision to permit the teaching of
intelligent design as an alternative to evolution in
public schools and demanded that Flying Spaghetti
Monsterism should be taught together with intelligent
design and evolution.154
The members of the Church refer to themselves as
Pastafarians and believe that the universe was created
by an invisible god called the Flying Spaghetti
Monster.155 They also believe that the Flying Spaghetti
Monster created the universe after drinking heavily;
that heaven has a stripper factory and a beer volcano;
and that the first Pastafarians were pirates. The Church
has a holy text called the Gospel of the Flying
Spaghetti Monster and its adherents are encouraged
to wear pirate outfits and colanders upside down on
 their heads. Fridays are celebrated as the sabbath and
Pastafarians and end their prayers with the word
‘R’amen’.156
Apart from being recognised as a religion in New
Zealand, Pastafarian colanders have been recognised
as religious headgear in Austria and the Czech
Republic. At the same time, however, the courts have
refused to recognise Pastafarianism as a religion in a
number of other countries, largely on the ground that it
is a satire rather than a religion. In Cavanaugh v
Nebraska,157 for example, the United States District
Court for Nebraska held that ‘[Flying Spaghetti
Monsterism] is not a “religion” within the meaning of
the relevant federal statutes and constitutional
jurisprudence. It is, rather, a parody, intended to
advance an argument about science, the evolution of
life, and the place of religion in public education’.

In most constitutional democracies, issues concerning the right to

freedom of religion arise when legislation is passed or other
governmental action undertaken which aims to achieve a societal
objective, but which simultaneously is perceived as adversely affecting
religious beliefs. Superficially neutral laws may sometimes adversely
affect the religious rights of individuals. Thus, the aspect of the right that
enables believers to give expression to and manifest their beliefs in
public and to engage in practices associated with the religious beliefs of
an individual is the component most likely to be affected by state
regulation. In addition to clashes with state objectives, the exercise of
the freedom of religion may clash with the constitutional rights of
others, including the right not to be unfairly discriminated against. The
courts generally attempt to balance the competing imperatives.158
However, difficult issues arise when the right to freedom of religion
collides with the right not to be unfairly discriminated against on the
basis of, for example, gender and sexual orientation.
 This question arose in the case of Strydom v Nederduitse
Gereformeerde Gemeente Moreleta Park.159 In this case, the Moreleta
Park Dutch Reformed Church appointed a music teacher, Mr Strydom,
to teach music to the learners who participated in the arts academy it
had established. When the church discovered that Mr Strydom was in a
same-sex relationship, however, it dismissed him from his job. Mr
Strydom then took the case to the equality courts established under the
PEPUDA. The church argued that its right to freedom of religion should
trump Mr Strydom’s right to non-discrimination on the basis of sexual
orientation. The Court rejected this argument and found in favour of Mr
Strydom. The grounds on which the Court arrived at this decision are
summarised by Bilchitz as follows:
On the facts, the Court found that Strydom’s work ‘involved no religious
responsibilities at all’ and that he had performed excellently in his job until
then. Strydom was not a member of the church and he was teaching as an
independent contractor. As such, he did not hold himself out to be a role model
to the students in their religious lives. Consequently, Basson J found that the
impact on the church’s freedom of religion of keeping Strydom in employment
was ‘minimal’. On the other hand, there was an enormous impact on Strydom’s
right to equality and dignity. Strydom was also affected in a material way,
suffering from depression, unemployment and being forced to sell his piano
and house. Consequently, the church did not succeed in discharging its onus of
proving that the discrimination was not unfair. The case thus demonstrates
clearly that the protections against unfair discrimination in the Constitution
and the Equality Act may restrict the autonomy of a religious association to
refuse to employ or dismiss individuals whom it deems unsuitable if such a
decision is based on grounds upon which discrimination is prohibited.160

The approach adopted by the Equality Court in Strydom seems to have

been taken even further by the High Court in its subsequent judgment
in Gaum and Others v Van Rensburg and Others.161 Although the
judgment is not a model of clarity, and although the favourable
outcome for Gaum was largely secured with reference to technical
arguments, the Court did suggest that the right not to be discriminated
against will normally trump the right to freedom of religion. It all started
when the General Synod of the Dutch Reformed Church decided in
2015 to allow individual ministers (dominees) of the church to
solemnise same-sex marriages and also to allow non-celibate gay men
or lesbians to be ordained as dominees or elders in the church. Many
church leaders and members of the church objected to this decision,
and after a sustained campaign by more conservative dominees the
General Synod met again towards the end of 2016 and voted to revert to
the church’s previous discriminatory position towards gay men and
lesbians. As the court remarked, the reversal of the 2015 decision
‘transpired pursuant to a four day meeting, prayer, much debate and
fierce argument’.162
The applicant, who was ordained as a minister in the Dutch
Reformed Church, challenged the validity of the 2016 decision in the
High Court. The applicants advanced two arguments. First the
applicants argued that the 2016 decision did not follow the church’s
own rules and was therefore invalid. Second, he argued that the
decision unfairly discriminated against gay men and lesbians on the
basis of sexual orientation and was therefore in breach of section 9(3) of
the Constitution. For various technical reasons the High Court held that
the procedure followed by the church to try and overturn its 2015
decision was inconsistent with the rules of the church and thus invalid.
The 2016 decision was thus reviewed and set aside. This meant that the
original 2015 decision of the General Synod (which permits individual
dominees to stop discriminating against gay men and lesbians) is in fact
still in force. Strictly speaking, this should have been the end of the
matter and there was no need for the Court to consider whether the
2016 decision unfairly discriminated against gay men and lesbians. As
the 2016 decision was invalid and set aside, there was no valid decision
that could be tested to determine whether it unfairly discriminated
against individuals on the ground of sexual orientation.
The Court nevertheless proceeded to consider whether the Dutch
Reformed Church decision unfairly discriminated against gay men and
lesbians. On the face of it, this part of the case presented the Court with
a choice between enforcing the right not to be discriminated against
guaranteed in section 9(3) of the Bill of Rights, on the one hand, and the
right to freedom of religion contained in section 15(1), on the other.
The judgment itself suggests that whenever the doctrines of a church
or other religious organisation are challenged in court because it
discriminates against individuals or infringes on some of their other
rights, it places the court in a difficult position. How, asked the High
Court, does a court evaluate religious beliefs to decide if other interests
should trump such beliefs? Religious beliefs are largely subjective, and
courts do not always have the knowledge to evaluate claims of religious
belief. 163 Judges may even consider some religious beliefs to be ‘bizarre,
illogical or irrational’, but that such beliefs nevertheless warrant
protection in certain cases (especially where such beliefs or religious
practices do not infringe on the rights of others).164 However, the Court
nevertheless proceeded to consider whether the actions of the Church
constituted unfair discrimination , despite the Church claiming that
their right to freedom of religion was at stake. The Court held that in a
case of alleged unfair discrimination, it will apply section 9(3) of the
Constitution and will subject the religious organisation to the same test
that applies to others. As the Court explained:
This Court is not asked to decide doctrine. The problem is that the moment a
Church steps into a Court, Court rules and the application of the law of the land
is to be applied by the courts. In this matter the Bill of Rights is invoked and it is
wrong to then employ the religious sentiments of some as a guide to the
constitutional rights of others. The sacred is forced into the secular when there
is prejudice to basic rights contained in the Bill of Rights; unfair discrimination
with no supportive evidence of fairness renders the supreme law, the
Constitution to be upheld. When courts need to address issues of
discrimination, courts do not weigh up the right to sexual orientation to that of
religious freedom.165

Given the fact that the LGBT+ community suffered discrimination in the
pre-constitutional South Africa and still suffers discrimination today,
they are a particularly vulnerable group which would make it more
difficult for a religious organisation to justify discriminating against
them. In this particular case, there were two specific reasons why the
church could not claim that its interest in religious liberty trumped the
interest of LGBT+ people not to be unfairly discriminated against. First,
it was unclear what the doctrine of the church was on this topic as ‘the
Church was split on its interpretation of the Bible pertaining to same-
sex marriages and leadership in the Church based on sexual
orientation’.166 Second, the Church presented no plausible argument
why it was necessary for it to discriminate and had not placed facts
before the Court to do so.167 If the principles applied in the Gaum case
are adopted by other courts, it will become ever more difficult for
religious institutions to justify discriminating against LGBT+ people or
women by invoking their right to freedom of religion.

Where to draw the line between a church’s

core activities and its other activities
In terms of the doctrines of the Catholic Church only
men can be ordained as priests. The prohibition on
women priests clearly discriminates against women on
the basis of sex and gender. Equally, however, the right
of the Church to arrange its affairs in accordance with
its own beliefs and doctrines requires it to be able to
discriminate against women.
If a specific woman wished to challenge the
practice of the Catholic Church in South Africa, she
may want to invoke the precedent created by the High
Court in the Gaum judgment. It is unclear how the
court would rule in such a case if it applies the Gaum
principles. On the one hand, the court would treat the
case like any other unfair discrimination case and
would note that, given the deeply entrenched
patriarchy in society, women remain a vulnerable
group. On the other hand, the principle that women
cannot become priests is still widely endorsed by
leaders of the Catholic Church. Unlike the Dutch
Reformed Church, whose leaders vehemently
disagreed on the correct doctrinal position to take on
same-sex marriage, the Catholic Church would be able
to argue that this discrimination against women formed
a central tenet of their religion and that this need to
respect religion trumped the right of women not to be
 discriminated against. The position of the church would
be much weakened if the discrimination did not occur
against members of the priesthood, but against
individuals who worked for the Church in a capacity not
directly related to religious teaching. For example, the
court would almost certainly find that the Church
unfairly discriminated against a gay secretary at a
Catholic school if the Church fired that secretary
because she was gay. Similarly, if the Church fired the
gay organists of a cathedral, it would similarly be in hot
water.

14.3.3 The reasonable accommodation of religious beliefs

and practices
Issues of religious freedom often arise in contexts where seemingly
neutral and universal rules that reflect a particular religious orientation
or belief system are applied in a manner that may have the effect of
marginalising or negating the beliefs and practices of people from
minority religions or people who do not embrace any form of religion at
all. For example, where a school imposes a particular dress code or a
particular disciplinary code that applies equally to everyone, the code
may nevertheless fail to accommodate the practices of minority beliefs
and religions. Thus, a school dress code which prohibits all girls from
wearing scarves or hats may discriminate against Muslim learners and
may thus infringe their religious freedom. Similarly, a disciplinary code
which requires all boys in a school to wear their hair in a short style may
discriminate against Rastafarian learners who are required to wear
dreadlocks. In such cases, the right to freedom of religion and the right
not to be unfairly discriminated against on the basis of belief or religion
intersect. The manner in which the law deals with such cases is to
require the institution reasonably to accommodate the beliefs and
practices of those whose rights have been marginalised or negated.
 At its core, reasonable accommodation is the notion that
sometimes the community, whether it is the state, an employer or a
school, must take positive measures and possibly incur additional
hardship or expense to allow all people to participate and enjoy all their
rights – including the right to freedom of belief – equally. 168 It ensures
that we do not relegate people to the margins of society because they do
not or cannot conform to certain social norms.169 In Christian
Education, in the context of accommodating religious belief in society, a
unanimous Constitutional Court identified the underlying motivation
of the concept as follows:
The underlying problem in any open and democratic society based on human
dignity, equality and freedom in which conscientious and religious freedom
has to be regarded with appropriate seriousness, is how far such a democracy
can and must go in allowing members of religious communities to define for
themselves which laws they will obey and which not. Such a society can cohere
only if all its participants accept that certain basic norms and standards are
binding. Accordingly, believers cannot claim an automatic right to be
exempted by their beliefs from the laws of the land. At the same time, the State
should, wherever reasonably possible, seek to avoid putting believers to
extremely painful and intensely burdensome choices of either being true to
their faith or else respectful of the law.170

The notion of reasonable accommodation can arise either directly or

indirectly. It arises directly in those cases in which a court has to
determine whether the complainant has been unfairly discriminated
against on the basis of his or her religions, such as Pillay. It arises
indirectly in those cases in which a court assumes that the right to
religious freedom has been infringed and then has to determine
whether this infringement is justifiable in terms of the limitation clause,
such as Christian Education and Prince. Although the Constitutional
Court did not directly invoke the concept of reasonable
accommodation in either of these cases, we contend that both cases
turned on whether the law reasonably accommodated the religious
beliefs and practices of the relevant group and hence whether the
limitation of the group’s religious freedom was, in fact, justifiable.
In Christian Education, the applicants challenged section 10 of the
South African Schools Act (SASA) 171 which prohibited corporal
punishment in all schools, including independent parochial schools.172
The applicants were an umbrella body of 196 independent Christian
schools. The schools were originally established to promote evangelical
Christian education. The applicants argued that section 10 was
unconstitutional as it infringed their rights to freedom of religion and to
cultural life. They referred to various verses in the Christian Bible which
countenance and, in some instances, prescribe corporal punishment as
an appropriate means of disciplining children. For instance, Proverbs
22:15 provides: ‘Foolishness is bound in the heart of a child, but the rod
of correction shall drive it far from him’ and Proverbs 23:13 and 14
provide: ‘Do not withhold discipline from a child, if you punish with a
rod he will not die. Punish him with a rod and save his soul from death.’
The applicants contended that corporal punishment, therefore, was a
vital aspect of the Christian religion. They argued that by prohibiting its
use when parents had consented to it, the state was unjustifiably
interfering with their freedom of religion.
The Constitutional Court had no doubt that the parents sincerely
believed that their religious rights were being infringed by the law.173
The Court held that freedom of religion may be ‘impaired by measures
that coerce persons into acting or refraining from acting in a manner
contrary to their beliefs’.174 The Court went further and recognised that
religious practices involve interaction with fellow believers and thus
section 31 of the Constitution makes provision for the practice of
religion in community with others.175 The Court ‘assumed without
deciding’ that section 10 of the SASA limited the parents’ religious rights
under sections 15 and 31 of the Constitution.176 Having made these
assumptions, the Court turned to the issue of whether it was reasonable
and justifiable in an open and democratic society for the state to limit
these rights in terms of section 36 of the Constitution.
The key question in this case, therefore, was whether the failure of
the law to accommodate the applicants’ religious beliefs by means of an
appropriate exemption was reasonable and justifiable. The main
purpose of the SASA was to create uniform norms and standards for all
schools; to reduce the level of violence in our schools; and to protect
children from maltreatment, abuse or degradation. The blanket ban on
corporal punishment was meant to convey a principled stance
affirming the dignity of learners. Granting an exemption to the
applicant would detract from this and would be difficult to administer.
The infringement, according to the Court, did not oblige parents to
make ‘an absolute and strenuous choice between obeying the law of the
land or following their conscience’.177 Except for not being able to
authorise educators to administer corporal punishment, the schools
were not prevented from fully exercising their religious beliefs. Thus, the
law was achieving an important objective while the intrusion on the
religious rights of the applicants was limited.178
The Court concluded that making an exception would detract from
the symbolic, moral and pedagogical purpose of reducing the level of
violence in schools.179 In the circumstances, the Court concluded that
the law was reasonable and justifiable and hence not
unconstitutional.180 In this case, the limited infraction of the freedom of
religion was outweighed by the important objectives that the law was
designed to achieve. The flexibility of the limitation clause enables the
courts to engage in these balancing exercises.
In Prince v President of the Law Society of the Cape of Good Hope, the
Law Society formed the view that the applicant was not a fit and proper
person and refused to register his articles as a candidate attorney. The
Society reached this conclusion because the applicant, who was a
Rastafarian, had two previous convictions for the possession of dagga.
The applicant had also indicated that he intended to continue using
dagga as part of his religious practices.
The Constitutional Court held that Rastafarianism is a religion
although it does not have a centralised organisational structure.181 The
use of dagga is one of the ways in which believers of this religion
manifest their belief.182 Thus, the statutory limitation on the use of dagga
was an infringement of the applicant’s right to freedom of religion.183
However, the Court was sharply divided on whether the law, which
made an exception only for the medical use of the drug, was justifiable
in terms of the limitation clause. The majority upheld the law and found
against the applicant on the basis that it would not be administratively
feasible to make a religious exception for the users of dagga as it would
be difficult to police and oversee.184 According to the majority, it would
be difficult to police a private activity of this nature in the absence of a
formally organised religious structure, stating that:
There is no objective way in which a law enforcement official could distinguish
between the use of cannabis for religious purposes and the use of cannabis for
recreation. It would be even more difficult, if not impossible, to distinguish
objectively between the possession of cannabis for the one or the other of the
above purposes. Nor is there any objective way in which a law enforcement
official could determine whether a person found in possession of cannabis,
who says that it is possessed for religious purposes, is genuine or not. Indeed,
in the absence of a carefully controlled chain of permitted supply, it is difficult
to imagine how the island of legitimate acquisition and use by Rastafari for the
purpose of practicing their religion could be distinguished from the
surrounding ocean of illicit trafficking and use.185

The minority were of the view that the statute was overbroad and not
carefully tailored to ‘constitute a minimal intrusion upon the right to
freedom of religion’.186 The law, according to the minority, was
unconstitutional as it did not allow for the religious use of cannabis that
was not necessarily harmful and which could be controlled more
effectively.187
The inherent flexibility of the limitation clause allows the courts to
assess whether the law that infringes the right to freedom of religion is
proportionate. As the split decision in Prince demonstrates, even the
judges of the highest court may differ in their determination of what is
reasonable in the circumstances. In essence, the state must identify a
societal objective which the governmental action advances, the
attainment of which justifies the right being infringed. The courts then
ask the additional question of whether the societal objective could
reasonably be achieved by a less intrusive limitation of the right. The
governmental conduct limiting the right will only pass constitutional
muster if the courts are satisfied that the importance of the societal
objective sought to be achieved outweighs the adverse effects of the
limitation on the right to freedom of religion. Ultimately, both the
prohibition on corporal punishment and the prohibition on the use of
dagga except for medicinal reasons were upheld even though both
measures infringed aspects of the right to freedom of religion.
An example of reasonable accommodation
The requirement that various religious beliefs and
practices have to be accommodated in a reasonable
manner can be illustrated with reference to a specific
example. Imagine that Claremont High School in Cape
Town has been besieged by ill-discipline and in some
instances learners have attacked educators. Imagine
further that in a specific incident a grade 12 learner
stabbed an educator who had reprimanded the learner
for being drunk at a sports event hosted by the school.
Now, it would not be surprising if the school, in an
effort to improve the teaching and learning
environment, adopted a code of conduct after
consulting the learners, the parents and the educators.
Such a code could, among others, expressly forbid
learners from bringing to school knives, daggers or
other weapons or instruments that could cause harm
to the learner, other learners or staff at the school.
On the face of it, such a rule would seem to be
eminently reasonable. However, the rule would have a
disproportionate impact on Sikh learners. This is
because according to the Reht Maryada, the official
Sikh Code of Conduct, a Sikh must at all times carry
five items, including a kirpan, on his person. According
to the Reht Maryada, a kirpan is a dagger that
represents the power of truth to cut through untruth. A
Sikh learner, therefore, would be able to argue that the
seemingly neutral code of conduct infringed on his
right to freedom of religion, read with his right not to
be discriminated against on the basis of his religion,
because it would prohibit him from wearing the kirpan
to school. In deciding whether the code should make
an exception for Sikh learners, the court would have to
employ the principle of reasonable accommodation.188
14.3.4 The right not to believe in any God or higher being
As we noted above, section 15 of the Constitution protects both the right
to freedom of religion and the right to freedom of other beliefs and
conscience. As such, it also protects a person’s right not to believe in a
God and not to have to participate in any religious practices such as
prayers and the singing of hymns. In Torcaso v Watkins,189 the US
Supreme Court invalidated a state law which required all public office
holders to declare that they believed in God prior to assuming public
office. In arriving at this decision, the Supreme Court pointed out that
the apart from stating that the government may not establish a religion,
the First Amendment to the US Constitution also states that it may not
prohibit the free exercise of religion. The free exercise clause, the Court
held, prevents the government from either awarding benefits or
imposing burdens based on a person’s religious beliefs or lack of
religious belief.190 Our courts have held that the free exercise clause is
similar to the right to freedom of religion and conscience protected by
section 15 of the South African Constitution. Similar sentiments were
expressed by Sachs J in Lawrence when he held:
South Africa is an open and democratic society with a non-sectarian state that
guarantees freedom of worship; is respectful of and accommodatory towards,
rather than hostile to or walled-off from, religion; acknowledges the multi-faith
and multi-belief nature of the country; does not favour one religious creed or
doctrinal truth above another; accepts the intensely personal nature of
individual conscience and affirms the intrinsically voluntary and non-coerced
character of belief; respects the rights of non-believers; and does not impose
orthodoxies of thought or require conformity of conduct in terms of any
particular world-view.191

The breadth of section 15 signifies that our society must not act
punitively towards non-believers by withholding benefits or imposing
burdens on them because of their non-belief. However, it is probable
that if a non-believer is discriminated against, he or she will rely on the
right not to be unfairly discriminated against on the basis of conscience
and belief rather than the right to freedom of religion, belief and
conscience.
14.3.5 Conducting religious observances at state institutions:
section 15(2) of the Constitution
As we noted above, the South African Constitution – unlike its US
counterpart – does not require a complete separation between the state
and religion. The South African Constitution does allow some
entanglement between the state and religion. Section 15(2) of the
Constitution makes this clear when it states that religious observances
may be conducted at state or state-aided institutions on condition that:
• these observances follow rules made by appropriate public
authorities
• they are conducted on an equitable basis
• attendance at these observances is free and voluntary.

Religious observance must be distinguished from religious education.192

Religious observance refers to the acts or rituals of a religious character
usually conducted at public events such as at school assemblies, at the
opening of Parliament or at the start of a soccer match. Religious
education refers to education that occurs inside the classroom about the
beliefs and teachings of various religions. It is only religious
observances that have to comply with the conditions listed in section
15(2) if the observances are to be held at state or state-aided
institutions. The primary purpose of this provision is to regulate
equitably the conducting of prayers at school. In Lawrence, the
Constitutional Court held that equitable treatment does not require
equal treatment of all religious affiliations and beliefs in a public
institution and stated:
In the context of a school community and the pervasive peer pressure that is
often present in such communities, voluntary school prayer could also amount
to the coercion of pupils to participate in the prayers of the favoured religion.
To guard against this, and at the same time to permit school prayers, section
14(2) [now section 15(2) in the final Constitution] makes clear that there
should be no such coercion. It is in this context that it requires the regulation of
school prayers to be carried out on an equitable basis. I doubt whether this
means that a school must make provision for prayers for as many
denominations as there may be within the pupil body; rather it seems to me to
require education authorities to allow schools to offer the prayers that may be
most appropriate for a particular school, to have that decision taken in an
 equitable manner applicable to all schools, and to oblige them to do so in a way
which does not give rise to indirect coercion of the ‘non-believers’.193

According to this judgment, a state or state-aided institution would not

be required to provide for religious observance to be conducted in a
manner that would accommodate every single form of religion, as well
as all forms of non-religion, in such an institution. If, for example, 90%
of the pupils at a school profess to be Christian, 9% profess to be Muslim
and the other 1% profess other religions or no religion at all, the school
would probably have to accommodate both Christian and Muslim
observance in proportion to the number of pupils adhering to these
religions. However, the school would not have to provide for religious
observance for the remaining 1% of pupils as long as everyone is given a
free choice to attend or not to attend such occasions where religious
observance is conducted. This is because the observance must be
equitable. The requirement that the observance must be equitable does
not require absolutely equal treatment of all religious beliefs. Mureinik
argues that equitable refers to the observances being fair and just.194
Excusing learners from minority religious groups from attending
prayers of the majority religion may satisfy the requirement of being
free and voluntary. However, it may not satisfy the requirement that it
also be just and equitable especially in cases where minority religions
are adhered to by at least a sizeable number of members of that
institution.195
It appears that this would require the schools to accommodate
reasonably all those religions that have a sizeable number of adherents
among the learners. It would not be permissible to determine the
religion of the majority of learners and accommodate only that
particular religion. Much more is required than merely giving
expression to majoritarian sentiments. The overt endorsement of a
particular religion by a public school, given the age and
impressionability of learners, will probably be unduly coercive and a
violation of the right to freedom of religion of those learners belonging
to other religions.
Given the need to accommodate religious diversity in schools, it is
not surprising that the High Court ruled in Organisasie vir Godsdienste-
Onderrig en Demokrasie v Laerskool Randhart and Others196 that it was
not permissible for a public school to promote or allow its staff to
promote that it, as a public school, adheres to only one or
predominantly only one religion to the exclusion of others; and to hold
out that it promotes the interests of any one religion above the interests
of others.197 Although, in accordance with the principle of subsidiarity,
the Court relied on section 7 of the SASA198 and did not directly rely on
section 15(2) of the Constitution, the wording of the two provisions are
almost identical and the judgment could therefore assist in
understanding the scope and content of section 15(2). In this case, the
Court had to consider whether a group of public schools with an
avowed Christian character and ethos violated the right to freedom of
religion of non-Christians. The schools all admitted that in their
schools, ‘human interaction in the education process is conducted on
the basis of Christian values and Christian values are imparted to
learners’.199 In considering whether this was permitted, the Court
pointed out that public schools are established partly to allow all
learners to ‘participate fully in the schooling system’.200 This would not
be possible if a school embraced a specific Christian ethos. The Court
pointed out three factors that would render the adoption of a specific
Christian ethos by a school constitutionally problematic. First, the
communities from which schools draw learners continually evolve, and
must be encouraged to evolve, given an unnatural residential
demographic configuration that has resulted from historic laws that
were racially skewed.201 Second, where a school embraces a specific
religious ethos it would have the effect of inculcating ‘a sense of inferior
differentness’ in learners who do not adhere to this preferred religion.202
Third, given the requirement that religions must be treated equitably,
the adoption of a single faith brand that excludes others will
misrepresent the legally required position and would unconstitutionally
suggest that not all learners of all faiths are welcome at the school.203
The judgment thus confirms that it is not permitted for a public school
to brand itself as a school with a Christian, Jewish or Muslim ethos.204
The situation is different for private schools. State-aided institutions
refer to those institutions, including educational institutions, which the
state funds extensively and regulates heavily.205 Thus, the High Court in
Wittmann v Deutscher Schulverein did not regard private or
independent schools as state-aided institutions for the purposes of
section 15(2) even though they are recipients of some state funding.206
This must be correct. It would be incongruent to permit institutions to
set up their religion-based schools at their own expense in terms of
section 29(3) of the Constitution and then also to oblige them to
conduct religious observances in an equitable, free and voluntary
manner. The purpose of section 29(3) is to enable religious
organisations to set up parochial schools and propagate their religion.
They cannot, therefore, be compelled to act in the manner required by
section 15(2) of the Constitution. However, all public schools are bound
by section 15(2) and cannot have a preferred or favoured religion.

14.3.6 Legislation recognising religious and traditional

marriages: section 15(3)(a)(i) of the Constitution
In terms of the common law, marriage is defined as the union of one
man and one woman to the exclusion of all others. This common law
definition applies to marriages concluded in terms of the Marriage
Act.207 In other words, a couple who want to enter into a marriage in
terms of the Marriage Act, must comply with the common law
definition of marriage. If a marriage does not comply with the common
law definition it cannot be recognised as valid by the Marriage Act. An
important consequence of this approach is that Muslim, Hindu and
customary law marriages are not recognised as valid by the Marriage
Act. This obviously constitutes a form of discrimination on the basis of
religion or custom. In Ismail v Ismail,208 for example, the Appellate
Division refused to recognise a Muslim marriage on the basis that it was
potentially polygamous. Thus any claim based on the polygamous
union was also regarded as void and unenforceable.
However, section 15(3)(a)(i) of the Constitution states that the
guarantee of freedom of religion and the requirements for equitable
treatment of religions as far as observance in state and state-aided
institutions is concerned ‘does not prevent legislation recognising
marriages concluded under any tradition, or a system of religious,
personal or family law’. This section, therefore, allows for legislation to
be passed which recognises marriages concluded under traditional or
other religious systems such as Hinduism and Islam. It permits
legislative intervention to rid our law of some of the chauvinistic
attitudes of the common law as exemplified in the judgment in Ismail.
The wording of section 15(3)(a)(i) is curious.209 The premise on
which section 15(3) is based is that laws recognising traditional forms of
marriage may infringe on the guarantee in section 15(1). It is difficult to
see how the state recognition of marriages recognised by religious,
personal or family law would violate the religious rights of others in
society. This is so because a law recognising different forms of marriage
will not coerce individuals who do not intend to conclude such
marriages to believe or not believe anything or to enter or not enter
forms of marriage that conflict with their religious beliefs. The only
reasonable explanation is that the Christian definition of marriage of
one man and one woman may be offended by laws recognising
polygamous marriages. However, it is unclear whether this section was
necessary at all. This is illustrated by the case of Fourie where it was
contended that allowing the institution of marriage to be extended to
include same-sex couples would fundamentally infringe deeply held
religious beliefs. However, the Constitutional Court held that the
Constitution allowed an accommodation of both the secular and the
sacred:
The function of the Court is to recognise the sphere which each inhabits, not to
force the one into the sphere of the other. Provided there is no prejudice to the
fundamental rights of any person or group, the law will legitimately
acknowledge a diversity of strongly-held opinions on matters of great public
controversy. I stress the qualification that there must be no prejudice to basic
rights. Majoritarian opinion can often be harsh to minorities that exist outside
the mainstream. It is precisely the function of the law and the Constitution to
step in and counteract rather than reinforce unfair discrimination against a
minority. The test, where majoritarian and minoritarian positions are involved,
must always be whether the measure under scrutiny promotes or retards the
achievement of human dignity, equality and freedom.210

Given this requirement of co-existence , the Court found that

recognising the rights of gay men and lesbians to marry did not mean
that religions that believed that marriage was the union of one man and
one woman had to solemnise gay and lesbian marriages. They could
refuse to solemnise gay and lesbian marriages if doing so would run
counter to their belief and creed.211 However, recognition by the state
would not result in a violation of the right to freedom of religion of those
religions that were opposed to gay and lesbian marriages.212
It is important to note that any laws passed in terms of section 15(3)
must be consistent with the other provisions of the Constitution. Thus,
section 15(3) would not sanction a law which unfairly discriminates
against women in the marital relationship even if the law gave
expression to a particular religious or traditional belief. The challenge
facing Parliament when drafting laws recognising marriages
consecrated in terms of religious or traditional law is to interfere as little
as possible with the tenets of the religion concerned. In addition, these
laws must also provide effective security and stability to the parties in a
manner which accords with the Constitution.
To give effect to traditional cultural beliefs, Parliament passed the
Recognition of Customary Marriages Act (RCMA).213 The RCMA
represents ‘a belated but welcome and ambitious legislative effort to
remedy the historical humiliation and exclusion meted out to spouses
in marriages which were entered into in accordance with the law and
culture of the indigenous African people of this country’.214 The RCMA
was passed to deal specifically with customary law. It was inspired by
the dignity and equality rights as well as the normative value system of
the Constitution.215 Section 1 of the RCMA defines customary law as
‘customs and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the cultures of
those peoples’. The RCMA defines a customary marriage as ‘a marriage
concluded in accordance with customary law’.216
In so far as customary marriages are concerned, it is important to
note that most of the customary law systems that apply in South Africa
differentiate between men and women. This is because men may marry
more than one woman while women may not marry more than one
man. Unfortunately, it is not clear whether this differentiation is
constitutionally valid or not.217 On the one hand, it could be argued that
polygamous marriages unfairly discriminate against women and that
section 15(3), therefore, should not authorise the recognition of such
marriages. On the other hand, it could be argued that the RCMA
prevents the most egregious forms of discrimination against women,
among others, by requiring the consent of the first wife before a
husband may conclude a subsequent polygynous marriage. In
addition, section 6 of the RCMA also states that:
A wife in a customary marriage has, on the basis of equality with her husband
and subject to the matrimonial property system governing the marriage, full
status and capacity, including the capacity to acquire assets and to dispose of
them, to enter into contracts and to litigate, in addition to any rights and
powers that she might have at customary law.

Section 7(6) goes on to provide that:

A husband in a customary marriage who wishes to enter into a further
customary marriage with another woman after the commencement of this Act
must make an application to the court to approve a written contract which will
regulate the future matrimonial property system of his marriages.

Do the customary principles and rules that

govern polygamous marriages pass
constitutional muster?
The discussion on polygamous marriages illustrates
that constitutional issues cannot always be solved with
reference to a single section of the Bill of Rights. When
considering whether the principles and rules of
customary law that govern polygamous marriages are
constitutionally valid, it would not be sufficient to
invoke section 15(3) to arrive at an answer. We would
also have to refer to the right to equality guaranteed in
section 9 of the Constitution and would specifically
have to engage with the Constitutional Court’s
jurisprudence around the meaning of section 9(3) to
arrive at the correct constitutional answer to this
problem.
 Given these complexities, it remains an open
question whether the customary principles and rules
that govern polygamous marriages would pass
constitutional muster. Despite the provisions of the
RCMA which go a long way towards protecting women
in polygamous marriages, in most customary law
systems women are not allowed to enter such
marriages. This raises serious questions about whether
the customary law principles and rules that govern
customary marriages show proper respect for the equal
dignity of women. Given these serious questions was it
correct for Parliament to pass a law recognising
polygamous marriages simply on the basis that a
number of communities in South Africa engage in and
endorse this practice on the basis that it accords with
their cultural or religious beliefs? Polygamy allows a
man to take multiple wives – does this unfairly
discriminate against women?

14.4 The rights of cultural and religious communities

14.4.1 The individual nature of these rights and how other

rights both qualify and enhance them
Section 30 of the Constitution guarantees everyone the right to
participate in the cultural life and use the language of their choice.
Section 31 guarantees every person belonging to a cultural, religious or
linguistic community the right, together with other members of that
community, to enjoy their culture, practise their religion and use their
language, and to form, join and maintain cultural, religious and
linguistic associations and other organs of civil society. Both these
sections, however, provide explicitly that these rights may not be
exercised in a manner that is inconsistent with any of the other
provisions of the Bill of Rights.
 The rights guaranteed in sections 30 and 31 lie at the heart of the
protection of diversity. As the Constitutional Court has pointed out,
these rights ‘underline the constitutional value of acknowledging
diversity and pluralism in our society’.218 They stem from the
recognition that we are different in the sense that we do not all share the
same religion, language or history and do not embrace the same
cultural practices and assumptions. As such, these rights acknowledge
that South Africa is a diverse society of many cultures, religions and
languages and they affirm, embrace and celebrate this diversity.
The rights guaranteed in sections 30 and 31 of the Constitution are
also enhanced by some of the other provisions of the Bill of Rights.
Section 9(3), for example, prohibits unfair discrimination on the basis
of, among others, culture, religion and language and section 15(1)
provides that everyone has the right to freedom of religion. Section
29(2) provides that: ‘[e]veryone has the right to receive education in the
official language or languages of their choice in public educational
institutions where that education is reasonably practicable’. Apart from
these provisions, the rights guaranteed in sections 30 and 31 are also
enhanced by section 6 of the Constitution. Although it does not form a
part of the Bill of Rights, section 6 requires the state proactively to
advance the use of official languages that were previously neglected and
to treat various languages with ‘parity of esteem’.219
Like the right to freedom of association, the rights guaranteed in
sections 30 and 31 of the Constitution are not group rights. Instead, they
are rights that belong to the individual. The Constitution does not
protect the rights of groups at all. It protects only the rights of
individuals who may best exercise their rights in association with
others. As Sachs J pointed out in Christian Education:
The protection of diversity is not effected through giving legal personality to
groups as such. It is achieved indirectly through the double mechanism of
positively enabling individuals to join with other individuals of their
community, and negatively enjoining the state not to deny them the rights
collectively to profess and practise their own religion (as well as enjoy their
culture and use their language).220
The rights guaranteed in sections 30 and 31, therefore, allow individuals
to assert their rights to advance the objectives of specific cultural,
religious or linguistic organisations or institutions as well as their own
rights as members of such bodies.221 Despite their decidedly individual
character, cultural, religious and linguistic rights are usually best
exercised in association with others and these rights are therefore
sometimes described as associational individual rights. The hybrid
scope of these rights complicates their application. This is because the
interest individuals have in associating with other individuals and in
expressing their identities as members of cultural, religious or linguistic
groups may lead to restrictions on the rights of others who wish to
participate in the life of that community. The interests protected by
sections 30 and 31 of some individuals, therefore, may clash with the
interests of other individuals who could be excluded from participating
in communal life by the exercise of this right.222
The challenge facing the drafters of the Constitution was to protect
these rights in a manner that was consistent with a non-racial
democracy based on majority rule and which protects individual rights.
This is exactly why the exercise of these rights is explicitly made subject
to the other rights protected in the Bill of Rights, including to the right
not to be unfairly discriminated against in section 9. An individual,
therefore, cannot exercise his or her right to associate with other
members of a linguistic or cultural community in a manner that would
unfairly discriminate against others.
Given that other rights could qualify and limit the rights guaranteed
in sections 30 and 31 of the Constitution, they must be interpreted and
applied in conjunction with the other rights in the Bill of Rights. In
addition, the rights guaranteed in sections 30 and 31 are also indirectly
advanced in an indirect manner through the exercise of other rights.
The right not to be unfairly discriminated against on the basis of race,
ethnic or social origin, colour, religion, belief, culture and language in
section 9(3), for example, indirectly advances these rights. Other
examples include section 16(2) which deems hate speech based on
race, ethnicity, gender or religion to be unprotected speech and section
29(3) which protects the rights of everyone to establish and maintain, at
their own expense, independent institutions that do not discriminate
on the basis of race, are registered with the state and maintain
appropriate standards.

14.4.2 The international protection of cultural liberties

The rights protected in sections 29(3), 30 and 31 are sometimes referred
to as cultural liberties.223 The cultural liberties they are seeking to protect
are a vital part of human development. As a United Nations report
stated:
Cultural liberty is a vital part of human development because being able to
choose one’s identity – who one is – without losing the respect of others or
being excluded from other choices is important in leading a full life. People
want freedom to practice their religion openly, to speak their language, to
celebrate their ethnicity or religious heritage without fear or ridicule or
punishment or diminished opportunity. People want the freedom to
participate in society without having to slip off their chosen cultural
moorings.224

Human beings are social creatures who derive satisfaction when

interacting with people who share their values, aspirations and
concerns. Language, cultural and religious associations afford people
the opportunity to engage in activities that are immensely important to
them. Society as a whole benefits from this, hence the constitutional
protection of these activities.
A cultural, religious or linguistic organisation that is established,
funded and operated to promote a particular culture, religion or
language should be able to protect the financial and other investments
of its members. If the law is to protect cultural, religious or linguistic
liberties, then it must provide the means for cultural, religious and
linguistic organisations, in pursuit of constitutionally permissible goals,
to avoid capture.
At an international level, various treaties protect these cultural
liberties:
• Article 22 of the International Covenant on Civil and Political Rights
(ICCPR) 225 protects the right to freedom of association with others.
 Article 27 of the ICCPR protects the rights of ethnic, religious and
• linguistic minorities, in a community with other members of their
group, to enjoy their own culture, to profess and practise their own
religion and to use their language.
• Article 10 of the African Charter on Human and Peoples’ Rights 226
protects the right of every individual to free association, provided he
or she abides by the law.227
• Article 2 of the Declaration of Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities 228 obliges
states to protect the national or ethnic, cultural, religious and
linguistic identity of minorities as well as their existence. States are
required to encourage conditions for the promotion of that identity.
Article 2(2) entrenches the right of people belonging to minorities to
establish and maintain their own associations.

To safeguard further these cultural, religious and linguistic liberties and

to provide institutional state support, section 185 of the Constitution
provides for the establishment of the Commission for the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic
Communities (CRL Commission). The primary purpose of this
Commission is to promote respect for the rights of cultural, religious
and linguistic communities. The CRL Commission is empowered to
carry out a number of responsibilities including:
• conducting educational programmes to promote respect for and
further the protection of cultural, religious and linguistic rights
• monitoring, investigating and researching issues
• educating, lobbying and advising on and facilitating the resolution
of friction between cultural, religious and linguistic communities.229

The CRL Commission, like other institutions protected in Chapter 9 of

the Constitution, is independent and is accountable to the National
Assembly (NA). All organs of state are obliged to assist and protect all
Chapter 9 institutions to ensure their independence, impartiality,
dignity and effectiveness. Finally, there is a constitutional obligation on
these Chapter 9 institutions to be impartial and to exercise their powers
and perform their functions without fear, favour or prejudice.230

CRL report on the commercialisation of

religion
In 2017 the CRL produced a report on the
commercialisation of religion by certain religious
institutions231 in the wake of controversial news reports
and articles in the media about pastors instructing
their congregants to eat grass and snakes, to allegedly
drink petrol or to part with considerable sums of
money in order to be guaranteed a miracle or blessing.
This study was done with reference to the mandate of
the CRL and particularly with reference to section
15(1) and section 31(1)(a) of the Bill of Rights. The
CRL controversially recommended ‘a process that will
establish a mechanism for registering religious leaders’
places of worship and umbrella organisations through
the recommendations of umbrella bodies on behalf of
their constituencies’.232 The nature of the
recommended registration mechanism for religious
leaders is similar to that of other professional bodies
such as those of lawyers, nurses, doctors and
engineers. The CRL believes ‘this registration
mechanism will also help to professionalise the
religious sector further, without compromising the
internal requirements of various institutions for
recognising those of a religious leader’. In essence, the
CRL proposes to be the final arbiter in religious
matters.233
These proposals were widely criticised for
proposing unwarranted limitations on religious
freedom. But the proposal also raises questions
 regarding the right of religious communities to practise
their religion. One could argue that the proposal views
religious communities very narrowly as only
encompassing formal religious institutions while, in
reality, religious communities extend beyond
individuals belonging to specific formally recognised
religious institutions. The proposal also raises
questions only touched on in Chapter 15 about the
extent of the powers bestowed by chapter 9 of the
Constitution on bodies like the CRL and raises the
following question: Does the CRL have the power in
terms of the Constitution to regulate all religious
institutions?

14.4.3 An analysis of the scope and content of sections 30

and 31 of the Constitution
The Constitutional Court has described these rights as ‘associational
individual rights, namely those rights which cannot be fully or properly
exercised by individuals otherwise than in association with others of
like disposition’.234 It is apparent that sections 30 and 31 draw heavily
from article 27 of the ICCPR, although there are some differences in the
wording of the different provisions. In Christian Education, the
Constitutional Court made the following general observations about
sections 30 and 31:
• Sections 30 and 31 do not refer to ‘minorities’, unlike article 27 of the
ICCPR.
• Sections 30 and 31 effectively protect the rights of individuals to
practise their religion, speak their language and enjoy their culture
with others in communities which they constitute.
• Individuals are best able to exercise these rights within the context
of the community. Individual rights to make choices about whether
they want to associate with some and not others lie at the heart of
these rights.
 Most open and democratic societies are tolerant and accepting of
•
cultural pluralism. These rights acknowledge the respect for
diversity and give greater content to the generic right to freedom of
association. People can be who they are without the need to
conform to the practices and expectations of the majority. These
rights promote the right to be different.
• These rights are protected through the double mechanism of
enabling individuals to associate with others of their community
and by preventing the state from denying them the right to exercise
their cultural, religious and linguistic rights collectively. Thus,
section 30 is positively phrased and gives everyone the right to
participate in the cultural life and use the language of their choice.
In contrast, section 31 is negatively phrased and provides that
persons may not be denied the right with other members of their
community to enjoy their culture, practise their religion and use
their language.
• The state provides institutional support in the form of the CRL
Commission to assist in the better enjoyment of these rights.
• Given their numbers, majority communities often have more
effective access to the political process. Minority communities
engaging in practices that the majority may regard as bizarre or
unusual may not as easily have access to the legislative and policy-
making processes. The Constitution manifests its respect for
diversity by having these various measures to protect the cultural,
religious and linguistic rights of communities.235

These cultural liberties are rights which individuals exercise most

effectively in associations formed to advance their interests. It is thus
proper to afford people the protected space in which to give expression
to their preferences, to prevent the state from unreasonably interfering
in their affairs, to provide institutional support to resolve disputes and
to provide assistance to some communities that lack capacity.
It is often easier to identify and verify a religious as opposed to a
cultural belief or practice. Cultural beliefs and practices evolve and
change, often in an incremental and imperceptible manner. While
organised religious bodies usually regulate religious beliefs and
practices, there is a lack of similar supervisory bodies that exercise
oversight over divergent cultural activities. Given the difficulties
associated with objective verification, it is sometimes hard to determine
whether the asserted belief or practice is a genuine cultural activity that
the law should protect. Culture is not static and can change. Moreover,
different individuals who associate with a specific cultural group or
practice may have different views about what the exact nature of the
cultural belief or practice might be.
The Constitutional Court in Pillay provided some guidance as to
what amounts to a cultural belief. The Court contrasted the approach
adopted in South Africa with the approach adopted by the English
courts. The English courts have offered a definition of what constitutes
an ‘ethnic group’,236 stating that such a group must have a long shared
history and cultural tradition of its own.237 Other relevant factors
include a common geographical origin, a common language, a
common literature peculiar to the group and a common religion
different from that of neighbouring groups. Thus, it is a combination of
artistic traditions, ethnicity, language, geographical origin and religion
which determines the culture of a person. The Court in Pillay, however,
argued that this definition was too restrictive and held that a wider
definition should be adopted. At the same time, however, the Court also
pointed out that if too wide a meaning is given to culture, ‘the category
becomes so broad as to be rather useless for understanding differences
among identity groups’.238
As it was unnecessary to resolve the question of what exactly
constitutes a protected cultural belief or practice in the context of this
case, the Court did not provide any workable definition for it. It merely
found that the applicant in the case was part of the South Indian Tamil
cultural group which, in any event, fell within the narrow definition of
culture.239 A cultural practice is enjoyed in association with others and
therefore the factors suggested by the English courts provide a useful
starting point to assess any assertion of a cultural practice. It is apparent
that the Constitutional Court was inclined to afford a significant
measure of latitude as to what would qualify as a cultural belief or
practice. A very wide interpretation, however, could lead to personal
predilections or preferences being elevated to cultural practices, which
would be undesirable.
It is also clearly undesirable for the courts to have to determine
whether the practice is an appropriate manifestation of that particular
culture. The greater the number of people who engage in the practice in
the particular cultural community, the more likely it is to be deemed a
genuinely held cultural belief. If the belief or practice is highly contested
in the cultural community itself, the Court is more likely to require
clearer proof from a person asserting the belief to demonstrate that it is
a genuinely held cultural belief.

14.4.4 An analysis of the internal modifiers in sections 30

and 31 of the Constitution
As pointed out above, the cultural, religious and linguistic rights
guaranteed in sections 30 and 31 of the Constitution contain a so-called
internal modifier in terms of which the enjoyment of these rights is
made subject to the other rights protected in the Bill of Rights. In other
words, unlike other rights in the Bill of Rights, both section 30 and
section 31 are modified by the proviso that they may not be exercised in
a manner that is inconsistent with any other provision of the Bill of
Rights. This does not mean that other rights will always trump a section
30 or 31 right whenever there is a clash between them and sections 30
and 31, no matter how trivial the inconsistency. Often, issues of
inconsistency arise when an association refuses admission to an
individual or where an individual who was a member of an association
is expelled or denied some of the benefits or privileges that he or she
previously enjoyed. For example, a cultural group may believe that it is
wrong to be gay or lesbian. If the group now discovers that a member is
gay and expels that member, they discriminate against him on the basis
of sexual orientation, which is prohibited by section 9(3) of the
Constitution. In such a case, given the importance afforded by the
Constitutional Court to the right against non-discrimination and given
the harmful effect on gay men and lesbians, the rights in sections 30 and
31 may have to give way to the right against unfair discrimination.
A clash between rights
The clash between the right to cultural association and
the right not to be unfairly discriminated against is
illustrated in the factual scenario set out below.240
Kleinfontein is a rural area that is home to about 1
000 Afrikaner whites and which is now applying to be
recognised as a township with the right to run its own
affairs. All the land in Kleinfontein is private property
and the board of directors require all the residents to
be Afrikaners who are descendants of settlers who
arrived from Europe and speak Dutch-based Afrikaans.
Entry to the area is restricted to those approved to
enter the area. There are no visible signs indicating
that the area is for whites only but there is a bust of
Hendrik Verwoerd, the architect of apartheid, under
whose leadership racist white rule was ruthlessly
implemented. The board of directors of Kleinfontein
deny that their community is based on race and state
that other white people such as descendants of British
settlers would not be welcomed to live in Kleinfontein.
They claim that their goal is to preserve their cultural
heritage which dates back to the Voortrekker settlers.
The residents of Kleinfontein do not pay for municipal
services as they draw water from a spring and are in
the process of constructing their own sewage system.
However, the residents buy much of their goods from
areas outside Kleinfontein. Poor white residents carry
out the menial tasks, but the area also has engineers
and other skilled workers living within its boundaries.
There were reports that a black police officer was
prevented from entering the area. Others feel that in a
country of more than 50 million, the vast majority of
whom are black, there is no place for enclaves such as
this.
In Christian Education, the Constitutional Court held that section 31(2)
was intended to ensure that practices offensive to the Bill of Rights were
not shielded by the protection afforded by section 31(1):
It should be observed, further, that special care has been taken expressly to
acknowledge the supremacy of the Constitution and the Bill of Rights. Section
31(2) ensures that the concept of rights of members of communities that
associate on the basis of language, culture and religion, cannot be used to
shield practices which offend the Bill of Rights. These explicit qualifications
may be seen as serving a double purpose. The first is to prevent protected
associational rights of members of communities from being used to ‘privatise’
constitutionally offensive group practices and thereby immunise them from
external legislative regulation or judicial control. This will be particularly
important in relation to practices previously associated with the abuse of the
notion of pluralism to achieve exclusivity, privilege and domination. The
second relates to oppressive features of internal relationships primarily within
the communities concerned, where section 8, which regulates the horizontal
application of the Bill of Rights, might be specially relevant.241

Despite the provisos in sections 30 and 31, these associational rights are
not presumptively inferior and of less weight than the rights to equality,
dignity and other rights.
A ‘constitutionally offensive group practice’ in this context means
any exclusionary policies, rules or forms of conduct adopted or applied
by a cultural, religious or linguistic community and which are not
permitted by the Constitution. The key issue is whether the policies,
rules or conduct of the community are consistent with the Constitution.
In deciding whether these policies, rules or forms of conduct are
permitted, regard must be had to whether the policy, rule or conduct is
reasonable and justifiable. The rights of the individual who is denied
access must be balanced against the purpose that the policy, rule or
conduct seeks to achieve. The policy, rule or conduct must also be
proportionate. In other words, the infringement of the individual right
must be weighed and balanced against the rights of the community.
The impact on the complainant is usually the most important factor
in this exercise. The more egregious the violation is, the less likely it is
that it will be deemed fair. In Lovelace v Canada,242 for example, the
applicant challenged a Canadian federal statute, the Indian Act 1970.
This Act provided that a Canadian Indian woman who married a non-
Indian could not be registered as an Indian. Ms Lovelace married a
non-Indian. As a consequence of the law, she was denied the right to
return to her native home in the Tobique Reservation in Canada. She
argued that the law excluded her from living her life as an Indian. In
addition, it specifically resulted in her losing the cultural benefits of
living in an Indian community and of having emotional ties to her
home, family, friends and neighbours. The United Nations Human
Rights Committee upheld the complaint as the exclusion of Lovelace
from the tribe meant that she was not able to enjoy her cultural rights as
an Indian. This drastic intrusion was not reasonable and necessary to
preserve the identity of the tribe.
Ms Lovelace simply had no other forum or association, other than
the tribal area, within which to exercise and enjoy her cultural rights.
Her exclusion thus meant an eradication of her right to enjoy her
culture. This was impermissible given the fact that article 27 of the
ICCPR protects the right to cultural associations. The cost that she had
to bear was disproportionate and excessive when compared to the
potential benefit that would accrue to the tribe as a consequence of the
law. Section 31 of the Constitution is materially similar and it is likely
that a similar outcome would have been reached through an
application of the limitation clause.
The manner in which the rights of the organisation or community
must be weighed and balanced against the infraction of the individual
rights is also illustrated in the case of Taylor v Kurtstag NO and Others.243
The applicant and his wife had voluntarily submitted to the jurisdiction
of the ad hoc Beth Din (Jewish Ecclesiastical Tribunal) and requested
that it arbitrate on the custody of their children and on the maintenance
to be paid. The applicant did not comply with the findings and was
effectively excommunicated. The applicant sought to set aside the edict
of the Beth Din that effectively excommunicated him from Jewish
society for failing to comply with its decision. He argued that the edict 244
conflicted with his individual rights to religion and to cultural
association. The edict, according to the community, was the only means
available to it to ensure compliance with the rulings of the Beth Din.
 The High Court enquired into whether the limitation of the
applicant’s rights could be justified by reference to the associational
rights of the community. The Court concluded that the limitation on the
applicant’s rights was reasonable and justifiable as a failure to enforce
the Beth Din’s rulings would result in the Jewish faith not being able to
protect the integrity of Jewish law.245 The associational rights of the
organisation took precedence over the personal rights of the
individual.246 In reaching its conclusion, the Court assessed the full
extent of the limitation on the rights of the applicant and weighed this
against the associational rights of the organisation.247 Malan J
concluded:
At the core of this dispute is a matter of religious doctrine: in all religions there
are rules entailing consequences if the rules are broken. It does not follow that
a contravention of the rules will invariably lead to the conclusion that, because
the member’s rights of dignity have been infringed, the infringement is
unconstitutional. Were this the position, it would be impossible for voluntary
organisations, particularly religious communities, to require conformity with
particular values and to impose sanctions for the contraventions.248

The Court went on to hold that the purpose of the edict was to punish,
to maintain standards and to encourage the dissenter to return by
complying with the ruling.249 In the circumstances, the Court held that
the community had not acted in a constitutionally offensive manner
and upheld the edict.250
As stated earlier, the courts have to balance the rights of the
individual who has been shut out of the community and the rights of
the community to protect its identity. Where an individual asserts that
his or her constitutional right has been infringed by another private
person or entity and that the other entity seeks to justify the limitation
by reference to his or her own rights, then sections 8(2) and (3) of the
Constitution have application. Section 8(2) provides:
A provision of the Bill of Rights binds a natural or a juristic person if, and to the
extent that, it is applicable, taking into account the nature of the right and the
nature of any duty imposed by the right.

And, section 8(3) provides:

 When applying a provision of the Bill of Rights to a natural or juristic person in
terms of subsection (2), a court –
(a) in order to give effect to a right in the Bill, must apply, or if necessary
develop, the common law to the extent that legislation does not give effect
to that right; and
(b) may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).

In terms of sections 8(2) and 8(3), an individual can rely on a right in

the Bill of Rights against another natural or juristic person. Where both
sides are asserting rights in support of their positions, the courts will use
the limitation clause enquiry to determine whether the limitation of the
rights is reasonable and justifiable. The relationship between natural
and juristic persons in so far as it pertains to cultural, religious and
linguistic relationships is most likely to be regulated by the common law
or by customary law. The directive contained in section 8(3), therefore,
enables the courts to reshape and develop the common law by
balancing the conflicting rights.
In Lovelace v Canada, the law completely cut off the applicant from
her community and she was not able to practise her culture outside that
community. The law which was designed to protect this community was
disproportionate and excessive in the sanction it visited on those who
married persons outside the tribe. In contrast, in the case of Taylor v
Kurstag, the Court was of the view that the punishment was required to
ensure that the edicts of the Beth Din were respected. In any event, the
applicant would be readmitted if he complied with the edict.
The possibility of readmission to the community if there was
compliance with the edict distinguishes Taylor from Lovelace. The
choice facing Lovelace was stark and unpalatable. She had to choose
between her marriage and her community. The law should never
require persons to make such painful choices. By way of contrast, the
applicant in Taylor had to abide by the decision of a process to which he
had voluntarily subjected himself and he would have been readmitted
to the community. Thus, what was being asked of him was not
particularly onerous and the community required compliance with
rulings of its religious tribunal. This resulted in the Court’s conclusion
that the community in Taylor had acted reasonably and justifiably.
 The Constitutional Court adopted a similar approach in Bhe and
Others v Khayelitsha Magistrate and Others.251 In this case, the Court
had to consider inconsistencies between aspects of customary law and
the right not to be unfairly discriminated against on the basis of sex and
birth. Ms Bhe and the deceased lived together and two children were
born of the relationship. The deceased applied for and obtained state
housing. At the time, the Black Administration Act (BAA) 252 regulated
intestate succession of black people. The BAA read with the regulations
provided that intestate succession had to be implemented in
accordance with customary law. Customary law provided that the eldest
male who is related to the deceased qualified as the heir while women
were not permitted to succeed. This is referred to as the rule of
primogeniture. When the deceased died, his father, who resided in the
Eastern Cape, was appointed as sole heir. The father wanted to sell the
house to defray the funeral expenses. If the house was sold, however,
the two minor children would be rendered homeless. The applicants, on
behalf of the minor children, contended that the primogeniture rule
violated their rights to human dignity and equality.
The Court held that in the past customary law was interpreted
through the prism of the common law and its content was ascertained
from an analysis of the codes of customary law and from the views of
customary law experts. This resulted in it becoming stagnant and
incapable of development and growth.253 The Court affirmed that
customary law is now an integral part of our law. Courts must analyse
and interpret customary law in accordance with the Constitution and
make adjustments to bring its provisions into line with the spirit,
purport and objects of the Bill of Rights.254
The Court assessed the primogeniture rule in context. It found that
the heir succeeded not just to the assets, but also had to take
responsibility for the preservation and perpetuation of the family unit.
As property was collectively owned, the family head held it for the entire
unit.255 However, circumstances had changed significantly and nuclear
families have replaced extended families as the principal family unit.
Now the male heir would acquire the assets but not necessarily the
responsibility to provide support and maintenance as was the case in
the past.256 Thus, applying the rule in the context where the applicants
lived in the Western Cape and the heir to the estate resided in the
Eastern Cape would not accord with the original objectives of the law.257
The Court emphasised that customary law had to evolve and develop to
keep pace with changed circumstances.258 It found that the exclusion of
women from inheritance was a clear violation of section 9(3) of the
Constitution.259 It found further that this exclusion violated the right to
human dignity as it was premised on the belief that women are not fit to
administer and own property. As such, the limitation that the rule
imposes on rights was not reasonable and justifiable in an open and
democratic society.260
The Court was of the view that the legislature was in the best
position to intervene and safeguard the rights of those violated by the
primogeniture rule.261 However, in the interim and pending the
promulgation of the remedial law, relief had to be afforded to those
whose rights were being violated by the rule. In this case, the victims
were among the most vulnerable in the society.262 As an interim
measure, the Court held that the Intestate Succession Act 263 was also to
apply to all intestate deceased estates that were formerly governed by
the BAA.264
The approach adopted by the Constitutional Court was to test the
primogeniture rule against constitutional rights. Having found that the
rule infringed various rights, the Court determined that the
infringements were not reasonable and justifiable. This meant weighing
the rights that were infringed against the purpose or objective of the
rule. In this case, the rule had had relevance and importance at a time
when the extended family system was the norm for African people.
However, the rule had much less relevance in the current situation. In
effect, the rule was no longer achieving a laudable societal objective
that justified the infringements of constitutional rights. Customary
rules, notwithstanding their antiquity, can now be tested against
constitutional provisions and could be changed if found to be
inconsistent with the Constitution. The courts now have the power in
terms of section 8(3) to effect these changes to bring principles of the
common law and customary law in line with the Constitution.
In Gumede (born Shange) v President of the Republic of South Africa
and Others, the Constitutional Court also effected changes to customary
law to bring it into line with the Constitution.265 The RCMA provides that
customary marriages concluded after the year 2000 are deemed to be in
community of property. Marriages concluded before that date had to be
regulated by customary law. Mrs Gumede was married prior to 2000
and her husband instituted divorce proceedings. In terms of the
customary law, as codified by the KwaZulu Act on the Code of Zulu Law
266
and the Natal Code of Zulu Law,267 the husband was deemed to be
the head of the family and the owner of all the property. The
consequence of this was that in respect of a customary law marriage
concluded before 2000, a wife was not entitled to any of the
matrimonial property on dissolution and was subject to the marital
power of the husband.
In Gumede, the Constitutional Court held that these provisions of
customary law discriminated, among others, on the basis of gender.
These unequal proprietary consequences applied only to women in
customary marriages concluded before 2000.268 The Court held that the
presumption of unfair discrimination was not rebutted and there was
no justification for this rule.269 The Court found that the section of the
RCMA which distinguished between marriages concluded before 2000
and those concluded after that date was also unconstitutional.270 The
net effect was that all customary marriages are to be deemed to be in
community of property.
In both the Bhe and Gumede cases, customary law provisions were
found to offend against the right not to be unfairly discriminated
against on the basis of gender. In both instances the Constitutional
Court materially changed the substance of the law to bring it into line
with the Constitution. It may be advisable for the custodians of
customary law such as the House of Traditional Leaders proactively to
reappraise those aspects of customary law that may violate the
Constitution and develop them in a way that accords with the
Constitution. In this way, they remain the main role players in the
development of this area of the law. It will afford them the opportunity
to make customary law more relevant and more applicable to current
circumstances. Failure to do so will leave the courts with no alternative
but to develop customary law as they did in these cases. It is also
important to emphasise that the Constitutional Court did not simply
make declarations of invalidity and leave it to the vagaries of the
legislative and political process to fashion a remedy. In both cases, the
law was changed to provide effective relief to the successful applicants.
Clearly, if the legislature is not satisfied with the changes made by the
Constitutional Court to the law, it is at liberty to legislate differently
provided it does so in a manner that is consistent with the Constitution.

14.5 Language rights

14.5.1 Introduction
One of the factors that triggered the Soweto student uprisings in 1976
was the insistence by the education authorities that Afrikaans and
English be the dual mediums of instruction in black schools in the area.
Prior to this decree, English was the sole medium of instruction. At the
time, English and Afrikaans were the only official languages. The
apartheid government perceived the implementation of Afrikaans as a
medium of instruction in schools as a method of entrenching and
extending its dominance. The perception that the language of the
oppressor was being imposed on black children fuelled the revolt
against the apartheid government.
The uprising occurred against the backdrop of the mistreatment of
indigenous languages under apartheid. Such indigenous languages,
even though spoken by millions of people, were not afforded official
recognition in South Africa in the pre-democratic era. The message
conveyed by this non-recognition was that these languages were less
important than English and Afrikaans and had a lower status than the
two languages officially recognised by the apartheid state.
To affirm the dignity of communities using the various languages
and to signal a decisive break with past thinking in this regard, section 6
of the Constitution recognises Sepedi, Sesotho, Setswana, siSwati,
Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and
isiZulu as official languages of the Republic. Section 6(4) requires all
official languages to be treated equitably and to enjoy parity of esteem.
Recognising that some indigenous languages had been systematically
disadvantaged, the Constitution imposes an obligation on the state to
take positive measures to advance the status of these languages.271 The
establishment of the Pan South African Language Board is one of the
initiatives that aims to foster respect for all languages. The challenge
facing those seeking to foster parity of esteem is to deal with the
dominance of English as the international language of commerce,
science, the law and technology.

Achieving parity of esteem for languages

The University of KwaZulu-Natal announced in 2013
that it would become compulsory in 2014 for all first-
year undergraduate students to complete a course in
isiZulu. The language of instruction would remain
English.
Critics of this move have argued that scientists,
lawyers, entrepreneurs, politicians, pilots and many
others are required to have a fluency in English to
function and to succeed at a global level. Although it
would be good if more South Africans learnt to speak
other South African languages, this should not be
made compulsory.
However, supporters of the move point to section 6
of the Constitution which requires that all languages be
treated with parity of esteem. They also note that
almost 60% of registered students at the University of
KwaZulu-Natal are first-language isiZulu speakers. They
therefore argue that the move is long overdue.
Consider the language policy at your own
university. Do you think all the dominant regional
languages spoken in the region in which your
institution is situated treat indigenous languages with
parity of esteem? If not, how could this practically be
achieved?
Section 30 of the Constitution provides that everyone has the right to
use their language while section 31 protects the right to do so with other
members of that community. As we have noted, sections 30 and 31 are
supported and buttressed by other rights. These include the right not to
be unfairly discriminated against on the basis of language in section
9(3) and the qualified right to be educated in the official language of a
person’s choice in public educational institutions in section 29(2).
People cannot exercise these rights in a manner that unreasonably and
unjustifiably limits the rights of others. A decision by the governing
body of an outstanding school to retain Afrikaans as the sole medium of
instruction may adversely affect the rights of non-Afrikaans speaking
learners in the region to an effective and proper education.272 As in
other instances, competing rights may have to be appropriately
balanced.

Balancing language rights with competing

rights
In Head of Department: Mpumalanga Department of
Education and Another v Hoërskool Ermelo and
Another, the Constitutional Court sketched the context
within which such questions should be considered,
pointing out that apartheid has created a ‘vast
discrepancy in access to public and private
resources’.273 It is important always to keep this
context in mind when evaluating the scope and content
of the appropriate rights. The quote below illustrates
how this context and the mutually enforcing and
interdependent rights give rise to specific constitutional
obligations. The Court observed that the ‘fault line of
our past oppression ran along race, class and gender’
and that the apartheid system ‘authorised a hierarchy
of privilege and disadvantage’.274 It then stated that:
Unequal access to opportunity prevailed in every domain. Access
to private or public education was no exception. While much
remedial work has been done since the advent of constitutional
democracy, sadly deep social disparities and resultant social
inequity are still with us. It is so that white public schools were
hugely better resourced than black schools. They were lavishly
treated by the apartheid government. It is also true that they
served and were shored up by relatively affluent white
communities. On the other hand, formerly black public schools
have been and by and large remain scantily resourced. They were
deliberately funded stingily by the apartheid government. Also,
they served in the main and were supported by relatively deprived
black communities. That is why perhaps the most abiding and
debilitating legacy of our past is an unequal distribution of skills
and competencies acquired through education. In an unconcealed
design, the Constitution ardently demands that this social
unevenness be addressed by a radical transformation of society
as a whole and of public education in particular. This the
Constitution does in a cluster of warranties. I cite only a handful.
Section 1(a) entrenches respect for human dignity, achievement
of equality and freedom. Section 6(1) read with section 6(2)
warrants and widens the span of our official languages from a
partisan pair to include nine indigenous languages which for long
have jostled for space and equal worth. Sections 9(1) and (2)
entitle everyone to formal and substantive equality. Section 9(3)
precludes and inhibits unfair discrimination on the grounds of,
amongst others, race and language or social origin. Section 31(1)
promises a collective right to enjoy and use one’s language and
culture. And even more importantly, section 29(1) entrenches the
right to basic education and a right to further education which,
through reasonable measures, the state must make progressively
accessible and available to everyone.

… Of course, vital parts of the ‘patrimony of the whole’ are

indigenous languages which, but for the provisions of section 6 of
the Constitution, languished in obscurity and underdevelopment
with the result that at high school level, none of these languages
have acquired their legitimate roles as effective media of
instruction and vehicles for expressing cultural identity.

And that perhaps is the collateral irony of this case. Learners

whose mother tongue is not English but rather one of our
indigenous languages, together with their parents, have made a
choice to be taught in a language other than their mother tongue.
This occurs even though it is now well settled that, especially in
the early years of formal teaching, mother tongue instruction is
the foremost and the most effective medium of imparting
education. Ample literature indicates that in Africa the former
 colonial languages have become the dominant medium of
teaching. Professor Kwessi Kwaa Prah describes this as the
‘language of instruction conundrum in Africa’. However, I need say
no more about this irony because the matter does not arise for
adjudication.275

According to the Oxford English Dictionary, language ‘is the method of

human communication either spoken or written consisting of the use of
words in a structured and conventional way’.276 Given the nature of this
right, people can exercise it meaningfully only with other members of
that linguistic group. Language in this context is not restricted to the list
of 11 official languages and protects the rights of individuals generally
to use the language of their choice. The right to use the language of a
person’s choice is integrally related to the right to enjoy a person’s
culture and to practise a person’s religion. The Constitution seeks the
dual objective of protecting the specific rights of the speakers of a
language and promoting respect for diversity. As Sachs J put it:
Its [the Afrikaans language] protection and development is therefore the
concern not only of its speakers but of the whole South African nation. In
approaching the future of the Afrikaans language, then, the issue should not be
regarded as simply one of satisfying the self-centred wishes, legitimate or
otherwise, of a particular group, but as a question of promoting the rich
development of an integral part of the variegated South African national
character. … Stripped of its association with race and political dominance,
cultural diversity becomes an enriching force which merits constitutional
protection, thereby enabling the specific contribution of each to become part
of the patrimony of the whole.277

In some instances, states have prohibited the use of specific languages

in public places. The Turkish Anti-Terror Act ,278 for example, made it an
offence to use the Kurdish language in public places.279 Some
international instruments, such as article 7 of the Treaty between the
Allied Powers and Poland, affirm the right of minorities to use their
language by providing that ‘no restriction shall be imposed on the free
use by any Polish national of any language in private intercourse, in
commerce, in religion, in the press or in publications of any kind or at
public meetings’.
Laws such as the Turkish Anti-Terror Act would be an infringement
of section 31 of the Constitution. Given that the South African Bill of
Rights applies horizontally in certain circumstances, this right may be
enforceable against natural or juristic persons. Thus, private schools
and employee organisations that prohibit the use of certain languages
are acting contrary to section 31. There is now a general acceptance that
respect for diversity includes allowing communities actively to pursue
their culture, use their language and practise their religion even if it is
different from that of the majority and provided it is not constitutionally
offensive to do so.

14.5.2 The right not to be unfairly discriminated against on

the basis of language
Section 9(3) of the Constitution prohibits the state from unfairly
discriminating directly or indirectly against anyone on various grounds,
including language. Section 9(4) of the Constitution extends this
prohibition and provides that no person may unfairly discriminate on
any of the prohibited grounds. The prohibition, therefore, applies both
vertically and horizontally.
As we noted in Chapter 13, the PEPUDA was enacted to give further
effect to these constitutional rights. It defines discrimination as any act
or omission which imposes burdens, obligations and disadvantages or
withholds benefits, opportunities or advantages from any person on
one or more of the prohibited grounds.280 There must be some link or
nexus between the disadvantage suffered and a prohibited ground,
such as language. Section 6 of PEPUDA provides that neither the state
nor any person may unfairly discriminate against any person on any of
the prohibited grounds, including language. However, what is
prohibited is unfair discrimination and not simply discrimination. Once
a person makes out a prima facie case of discrimination, a presumption
of unfairness effectively arises which the respondent needs to rebut. In
determining unfairness, a court will have regard to the impact of the
discrimination on the complainant, whether it is reasonable and
justifiable, and whether the respondent has taken reasonable steps to
address the disadvantage and accommodate diversity. These issues are
discussed more fully in chapter 13.

14.5.3 The right to receive education in the official language

of choice
The language provisions set out above must be read in conjunction with
section 29(2) of the Constitution. This section guarantees the right to
receive education in the official language of choice in public institutions
where that education is reasonably practicable. Section 29(2) goes on to
provide that:
to ensure the effective access to, and implementation of, this right, the state
must consider all reasonable educational alternatives, including single
medium institutions, taking into account –
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and
practices.

The right of Afrikaans medium public schools to continue to be single

medium schools was one of the most contentious issues in the
constitutional negotiation process. The depth of sentiment felt by some
communities about their language of choice was demonstrated by the
protracted legal battles by some schools to retain Afrikaans as sole
medium of instruction.281 These cases – adjudicated in the context set
out above – pose difficult questions about the accommodation of
diversity in the language field in cases where the dominant language of
instruction at a school may have the effect of excluding pupils who have
suffered unfair discrimination in the past.
In Minister of Education (Western Cape) v Mikro Primary School
Governing Body,282 the Supreme Court of Appeal had to consider the
legality of a directive issued by the Department of Education directing
the governing body of an Afrikaans medium school to convert the
school to a parallel medium school. The Department wanted the school
to admit learners and provide tuition for them in English. The school,
which was historically an Afrikaans medium school, refused various
requests by the Department to convert it to a parallel medium school.
The Department then issued the directive.
The Court held that it is the function of the governing body of a
public school to determine the language policy of the school subject to
the Constitution and applicable law.283 In this instance, the governing
body had acted lawfully. If the governing body had acted unreasonably
in the adoption of its language policy, the Department could challenge
it in terms of the Promotion of Administrative Justice Act (PAJA).284
Alternatively, the head of the Department could, in terms of the SASA,
replace the governing body if he or she formed the view that it had
ceased to perform the functions allocated to it.285 The Court held that by
not following either of these options and by instructing the principal to
admit learners contrary to the admission and language policies of the
school, the Department had acted unlawfully.286 According to the Court,
the Department did not have the power to determine the language or
admission policy of the school.287 The directive to the school was
seeking to do just that and, therefore, was declared unlawful and
invalid.288 The school was thus permitted to continue being a single
medium school and allowed to determine its language preferences.289
The statement in Mikro that the head of the Department of
Education could replace the governing body if he or she formed the
view that it had ceased to perform the functions allocated to it was
subsequently overruled by the Supreme Court of Appeal in Hoërskool
Ermelo.290 Hoërskool Ermelo was an Afrikaans medium school that had
been in existence for some 98 years and had a reputation for excellence.
Given, however, that the number of learners attending the school had
steadily diminished over the years and that all of the English medium
schools in the immediate vicinity were filled to capacity, the
Department of Education insisted that it change to a parallel medium
school. The governing body, however, refused to do so. The head of the
Department of Education then took the view that the governing body
was acting unreasonably and appointed an interim committee to
determine the school’s language policy. The interim committee decided
to change the language policy to that of a parallel medium school. The
school then challenged all of these decisions on the grounds that they
were unlawful. The key issue the Court had to determine, therefore, was
whether the Department had acted legally.
The Court held that the SASA vests the governance of the school in
the governing body.291 Importantly, the governing body has the
authority to determine the language policy of the school subject to
complying with the Constitution and applicable law.292 The governing
body comprising parents, learners, educators, members of staff and the
principal is representative of the school community and is thus in a
position to make an informed decision on behalf of the school
community.293 The Court held in this respect that:
Language is a sensitive issue. Great care is taken in the Act [SASA] to establish a
governing body that is representative of the community served by a school and
to allocate to it the function of determining the language policy. The Act
authorises only the governing body to determine the language policy of an
existing school, and nobody else. As nobody else is empowered to exercise that
function, it is inconceivable that s 22 was intended to give the head of
department the power to withdraw that function, albeit on reasonable grounds,
and appoint somebody else to perform it, without saying so explicitly.294

The head of the Department of Education could not do indirectly that

which he was prohibited from doing directly. He could not change the
language policy of the school as this power was vested in the governing
body. The Court held, after interpreting the SASA, that he could not
achieve that objective by disbanding the governing body and by
appointing an interim body to change the policy. The Court thus held
that the statement in Mikro indicating otherwise was incorrect.295
The Mpumalanga Department of Education then appealed against
this decision to the Constitutional Court.296 The Constitutional Court
took the view that while this was a case about legality, it was also about
whether it was unreasonable for a school to preserve its Afrikaans-only
language policy in the face of dwindling numbers and greater demand
for tuition in English.297 The broader description of the issue meant that
social imperatives to redress past disadvantages had to be taken into
account together with the need to act lawfully.298 The Court held that
one of the broader visions of the Constitution is that ‘social unevenness
be addressed by a radical transformation of society as a whole and of
public education in particular’.299
The Court, with this in mind, interpreted section 29(2) of the
Constitution. The Court held that the section is comprised of two parts.
The first part protects the right to receive public education in the
language of choice. However, this right is modified by the requirement
that it accrues where reasonably practicable. What is reasonable will
depend on the circumstances of the particular case. This would include
availability of and accessibility to public schools, their enrolment levels,
the medium of instruction adopted by the governing body, language
choices of the parents and learners, and the curriculum options.300
Further, the Court held that this aspect of the right means that if a
learner already enjoys the right to be educated in the language of
choice, the state has a negative duty not to diminish the right without
adequate justification.301
The second part of section 29(2) refers to the manner in which the
state must ensure access to the right to be taught in the language of
choice. In deciding on the preferred option, whether it be a single
medium, parallel medium or dual medium school, the ‘state must take
into account what is fair, feasible, and satisfies the need to remedy the
results of past racially discriminatory laws and practices’.302 The main
purpose of the SASA was to create a system that would redress past
injustices in the provision of education and provide education of a
progressively high quality to learners. According to the Court, the SASA
devolved to the governing body the power to determine the language of
instruction of the school.303 However, the exercise of this power must be
in accordance with the Constitution. The Court interpreted this to mean
that the policy adopted must fit with the ethos of the Constitution.304
The Constitution requires a language policy to assist in making
education progressively available to everyone, to take into account what
is fair and practicable, and to enhance historical redress. Thus, the
school must have regard to making education accessible to all in the
area and cannot restrict its consideration to the interests of the learners
attending the school.305
The Constitutional Court took the view that the authority of the head
of the Department of Education to revoke the functions of a governing
body was a broad one and it related to any function conferred on the
governing body by law, including the power to determine the medium
of instruction.306 Thus, the Court affirmed the reasoning in Mikro that
the head of the Department of Education may, on reasonable grounds,
withdraw a school’s language policy.307
The Court also indicated that in determining whether the head of
the Department of Education has acted reasonably, regard must be had
to the nature of the function, the purpose for which it is revoked in the
light of the best interest of learners, including potential learners, the
views of the governing body, the nature of the power sought to be
withdrawn and the well-being of the school, its learners, parents and
educators.308 Importantly, the Court held that section 29(2) of the
Constitution imposes a duty on the state to respect the right to be taught
in a language of choice. It also imposes the additional responsibility on
the state of ensuring that there are adequate school places for all
children in the province and that admission to schools is fair.309 A
finding that language policies vest exclusively in the governing body
could frustrate the broader objectives of the Constitution and the SASA
which is to provide an effective education for all.310
The Court concluded that the Department of Education was entitled
to intervene and revoke the exercise of any function exercised by the
governing body if reasonable grounds exist.311 The Constitutional Court
thus overruled the Supreme Court of Appeal. However, the Court
concluded that legally once a power is revoked, it vests in the head of
the Department of Education and he or she must exercise that power. In
this case, the head of the Department erred by revoking the power and
then transferring it to an interim committee. He was not permitted to do
so and hence the decision of the interim committee was set aside.312
Section 29(2) of the Constitution was reconsidered by the
Constitutional Court in the important judgment of Afriforum and
Another v University of Free State.313 In the past, the sole medium of
instruction at the University of Free State was Afrikaans (UFS). In an
effort to make the education at the University more accessible to other
communities, lectures were conducted in separate English and
Afrikaans streams. The unintended consequence of this, according to
the UFS, was that the classes conducted in Afrikaans were generally
attended by white students while classes conducted in English were
generally attended by black students. This de facto segregation was
unacceptable and UFS, after extensive consultation, decided to adopt
English as the sole medium of instruction and to phase out Afrikaans as
a medium of instruction over a period of time. This change in policy was
challenged by the applicants and one of the issues the court had to
decide was whether it was not reasonably practicable for UFS to retain
Afrikaans as the second medium of instruction. The Constitutional
Court refused leave to appeal and found that this policy decision taken
by the Council was executive in character and was not administrative
action.
One of the issues was whether this executive decision was in
accordance with the doctrine of legality. This obliges bodies exercising
public power to act consistently with the Constitution and only to
perform functions and make decisions that they are legally authorised
to make.314 This required the Court to consider whether UFS, in
changing its policy, acted in a manner consistent with section 29(2) of
the Constitution.
Section 29(2) was comprehensively interpreted in the main
judgment. The section provides a right to be taught in the official
language of choice if it is reasonably practicable to do so. In addition to
the words used in the section, regard must also be had to the
foundational values and norms of the Constitution when seeking to
ascertain the purpose of the section. The Court held that the provisions
of the section, context, purpose and norms of the Constitution are
interconnected components of the interpretative exercise.315
‘Reasonably practicable’ must be interpreted as having regard to section
29 as a whole, which requires that reasonable measures be taken to
make education progressively available and accessible and to eradicate
intended or unintended racial discrimination. Section 29(2) makes it
mandatory for the educational institutions to consider ‘all reasonable
educational alternatives including the creation of new or the retention
of single medium institutions.’
According to the Constitutional Court,316 when deciding on the most
appropriate option, regard must be had to equity, practicability and the
need to redress the results of past racially discriminatory laws and
practices. The overarching constitutional obligation is to make
education accessible to all so as to free their potential. The Court
observed that as a nation we are currently in the process of
transforming from an era of racism and inequity during which black
people were provided with sub-standard education to an era of non-
racialism and equal and high-quality educational opportunities for all.
The right to be educated in the official language of choice must be given
effect to but not in a way which undermines equitable access to
education. These factors must also be considered even if the learner
already enjoys the benefit of being taught in the official language of
choice. An educational institution would be justified in changing its
existing single medium tuition policy if it results ‘in inequitable access
and the unintended entrenchment or fuelling of racial disharmony …’317
In this case, UFS moved from a single medium Afrikaans institution
to a dual medium institution in order to make educational
opportunities more accessible. If UFS was able to offer tuition in
Afrikaans without undermining constitutional values then the equity
test would have been satisfied.
Importantly the court held that reasonable practicability does not
just mean that it must be practicable for the institution to accommodate
single medium tuition in a language of choice. The test is not whether or
not the institution has adequate financial and other resources to offer
instruction in the official language of choice. The question that the
majority posed was whether the retention of Afrikaans as a medium of
instruction had a comfortable co-existence with constitutional values
and norms. The view of UFS was that the use of Afrikaans as a parallel
language of instruction unwittingly perpetuated segregation and
racism. It seemed that the dual medium policy had the effect of racially
segregated lectures and increased racial tensions on campus. In
deciding to address these issues, UFS took the decision to adopt English
as the sole medium of instruction. The Court found that as the retention
of Afrikaans as medium of instruction did not co-exist comfortably with
foundational constitutional values, the challenge that it was reasonably
practicable to maintain Afrikaans as a medium of instruction had to fail.
In a minority judgment, Froneman J held that it would have been
wiser for the Court to have granted leave to appeal and set the matter
down for hearing in order to better assess the merits of the appeal. The
minority judgment did not accept the main premise of the majority
judgment that it would be impossible to provide education in a
language of choice without unfairly discriminating on the basis of race.
According to the minority, the consequence of this is that it ‘deprives
speakers of one of our official languages of the constitutional right to
receive education in the language of choice.’318 The minority did not
accept that UFS had, at a factual level, established that the continuation
of the dual medium policy amounted to racial discrimination.
Froneman J would have granted leave and referred the matter back to
the High Court to allow UFS to present evidence on the nature and
extent of any racial discrimination on the part of students receiving
education in Afrikaans, or on the part of those lecturing in Afrikaans
and the steps taken to address these issues administratively. Froneman
J would also require UFS to present evidence on other practicable
alternatives available to continue parallel-medium instruction that
would not result in racial discrimination. Towards the end of the
judgment, Froneman J poses the question of whether all is lost for
Afrikaans.

Given that the existing right to be taught in Afrikaans

was being adversely affected, do you think that the
effect of the majority judgment is to eviscerate the right
to receive education in the official language of choice?
Alternatively are you of the view that the need to afford
equal access to educational institutions justifies the
manner in which section 29(2) was interpreted and
applied by the majority? How important is it to focus
on the possible discriminating impact of a language
policy when such a policy limits access or diminishes
the quality of access to education to students who do
not speak the preferred language?
14.5.4 Official languages of the Republic
Section 6(1) provides that there are 11 official languages in the
Republic. These are Sepedi, Sesotho, Setswana, siSwati, Tshivenda,
Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. The
Constitution recognises that many of the indigenous languages were
neglected and historically diminished. There is therefore a need to take
practical steps to elevate their status and enhance their usage.319 Other
languages spoken by minorities in South Africa, such as Hindi and
Greek, were not listed as official languages. They are spoken in other
parts of the world and their survival does not depend on usage and
growth in South Africa.
Section 6(3) allows the national and provincial governments to use
any particular official languages for governance purposes after having
regard to usage, practicality, expense, regional circumstances and
preferences of the population as a whole or in the province concerned.
At the very least, the national government and each provincial
government must use two official languages.
In Lourens v Speaker of the National Assembly,320 the applicant
argued that an important consequence of classifying Sepedi, Sesotho,
Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele,
isiXhosa and isiZulu as official languages is that it imposes an obligation
on Parliament to publish Acts of Parliament in all 11 languages. The
Supreme Court of Appeal, however, rejected this argument on the
grounds that section 6(3) of the Constitution ‘expressly allows
government to act in a minimum of two of the official languages’. The
drafters of the Constitution, therefore, could not have intended to
impose such an obligation on government.321
The Joint Rules of Parliament reflect the constitutional requirements
and provide that a bill introduced in either the National Assembly or the
National Council of Provinces must be in one of the official languages,
and that the bill in this language will be the official text for the purposes
of parliamentary proceedings.322 The official text, however, must be
translated into one other official language and provided to Parliament
at least three days before the formal consideration of the bill in the
house in which it was introduced.323 In practice, bills are usually
introduced in English. This is because it is invariably the only language
that all members of Parliament understand.324
Apart from arguing that section 6 imposed an obligation on
Parliament to publish Acts of Parliament in all 11 official languages, the
applicant also argued that the practice of publishing Acts of Parliament
in only two official languages unfairly discriminated against him as an
Afrikaans speaking citizen and thus infringed the PEPUDA. The
Supreme Court of Appeal, however, dismissed this argument. In
arriving at its decision, the Court assumed that the practice followed by
Parliament was discriminatory, but held that it was not unfair because it
complied with the provisions of section 6(3) of the Constitution.
To ensure that the national and provincial governments comply with
their obligation to elevate the status and enhance the usage of
indigenous languages, section 6(4) provides that the national and
provincial government, by legislative and other measures, must regulate
and monitor their use of official languages. The national legislation
referred to in this section is the Use of Official Languages Act.325
In addition, section 6(4) also provides that all official languages
must enjoy parity of esteem and must be treated equitably.326 The duty
to act equitably does not necessitate equal treatment but requires that
the state act even-handedly and fairly towards the various languages.327
However, the requirement that the state be even-handed in its
treatment of the various languages is subject to the requirement that the
state must take practical measures to elevate the status and advance the
use of indigenous languages which in the past had a diminished use
and status.
The Constitution also provides for the establishment of the Pan
South African Language Board. This Language Board has a
constitutional mandate to promote and create conditions for the
development of all official languages together with the Khoi, Nama, San
and sign languages. In addition, it is required to promote and ensure
respect for various other languages spoken by communities in South
Africa.
Should Tamil be one of South Africa’s official
languages?
Although the Constitution officially recognises 11
languages, many more languages are spoken in South
Africa. One of the objections the Constitutional Court
had to consider in Certification of the Constitution of
the Republic of South Africa, 1996,328 was whether the
drafters of the Constitution had acted contrary to the
constitutional principles by not recognising Tamil as
one of the official languages. The Constitutional Court
rejected this argument.
The objector, a certain Mr Naidoo, argued that
Tamil, like the indigenous languages, was
discriminated against under apartheid and should also
have been afforded recognition as an official language.
Tamil is a language spoken by a section of the Indian
community and is one of the oldest languages in the
world. The Court responded to this argument by
pointing out that unlike the indigenous languages,
Tamil is spoken by millions outside South Africa and
will survive and flourish whatever happens in this
country. This is not the case with the indigenous
languages and hence there is a need to provide the
additional protection of official recognition for them.
Provisions in the Constitution prohibit unfair
discrimination against Tamil speakers and protect their
rights to enjoy and use their language and culture.
Their language rights are thus adequately protected by
other provisions of the Constitution.329
Are you convinced by Mohamed J’s reasoning as to
why it was permissible for Tamil not to be recognised
as an official language given the necessity, from a
symbolic perspective, for previously disadvantaged
languages to be recognised and affirmed?
14.5.5 The Pan South African Language Board
The Pan South African Language Board Act330 was passed to provide for
the recognition, implementation and furtherance of multiculturalism in
South Africa and to promote the development of previously
marginalised languages. An independent Board with defined statutory
powers was created to realise and achieve the mandate. Some of the
objectives of the Board are to:
• create conditions for the development and the promotion of the
equal use and enjoyment of all the official South African languages
• prevent the use of any language for the purposes of exploitation,
domination or division
• promote multilingualism and translation and interpretation
facilities
• foster respect for languages spoken in the Republic
• further the development of the official languages
• promote respect for and the development of other languages used
by communities in South Africa.331

The Board has various functions including:

• making recommendations with regard to any proposed or existing
legislation, practice and policy dealing with language matters
• advising an organ of state on the implementation of any proposed or
existing legislation, policy or practice that relates to language
matters
• investigating any complaint alleging a violation of a language right,
language policy and language practice
• initiating studies and research aimed at promoting and creating
conditions for the development and use of the various languages.

Any person acting on his or her own behalf or on behalf of another

person may lodge a complaint about an alleged violation or threatened
violation of a language right with the Board.332 The complaint must be in
writing and must specify details of the violation. The Board is required
to render its assistance free of charge. The Board, on receipt of the
written complaint, is required to investigate the alleged violation of any
language right, policy or practice. The Board has the power to subpoena
persons to appear before it and give evidence and produce relevant
documents and records.
If, after investigation, the Board is of the opinion that there is
substance to the complaint, it will endeavour by mediation or
conciliation to resolve the issue or rectify any act or omission. If the
Board is unsuccessful in mediating the matter and it is of the view that
there are good reasons to address the matter, it shall assist the
complainant further. It may make a recommendation to an organ of
state against which the complaint is lodged recommending that
financial or other assistance be provided as redress. The Board may
provide the complainant with financial or other assistance to redress
any damage. Alternatively, the Board may provide the complainant with
financial or other assistance to enable him or her to obtain relief from
any other organ of state or a court of law.

SUMMARY

It will always be difficult to accommodate the beliefs and practices of

individuals who belong to different cultures, who have different
religious beliefs and who speak different languages. In a heterogeneous
society like South Africa, this challenge becomes even more
pronounced. In this chapter we look at the various rights that protect
these diverse interests and ask how these interests should be
accommodated to prevent the beliefs or actions of some from harming
others in society.
To this end we look at the scope and content of freedom of
association and show how this right is often instrumental in helping to
protect other rights including political rights. We also ask when the right
to freedom of association will be trumped by other rights, including the
right not to be discriminated against. We point out that the right to
freedom of religion, belief and conscience does not only guarantee the
right to believe in a God and to practise those beliefs, but also the right
not to believe in any God at all. We ask when justifiable limits can be
placed on the exercise of religious beliefs and practices, pointing out
that some beliefs and practices are so harmful to others while not
sufficiently closely associated with the core aspects of that religion that
these beliefs and practices will not be protected by the Constitution.
Finally, we engage with the manner in which all associational rights
protect individuals while acknowledging that these rights are often
exercised more effectively in conjunction with others or when
individuals belong to institutions where these rights are exercised
collectively. However, we note that the Constitution does not protect
group rights, but only the rights of individuals who belong to specific
cultural, language or religious groups.

1 Woolman, S ‘Freedom of association’ in Woolman, S and Bishop, M (eds) (2013)

Constitutional Law of South Africa 2nd ed rev service 5 44.6.
2 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008
(1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) para 150.
3 (CCT 110/19) [2020] ZACC 11; 2020 (8) BCLR 950 (CC) (11 June 2020).
4 New Nation Movement NPC para 26.
5 New Nation Movement NPC para 25.
6 New Nation Movement NPC para 25.
7 Ackermann, L (2012) Human Dignity: Lodestar for Equality in South Africa 109.
8 Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996
(CCT37/96) [1996] ZACC 24; 1997 (2) SA 97 (CC); 1997 (1) BCLR 1 (CC) (4 December 1996)
para 24.
9 New Nation Movement NPC para 25.
10 Second Certification para 26.
11 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007)
para 53.
12 Currie, I and De Waal, J (2013) Bill of Rights Handbook 6th ed 397.
13 Quoted by Woolman (2013) 44.1.
14 The Canadian Supreme Court approved of this analysis in Alberta Union of Provincial
Employees v Alberta (AG) (1987), 28 C.R.R. 305. (SCA).
15 Summers, CW (1964) Freedom of association and compulsory unionism in Sweden and the
United States University of Pennsylvania Law Review 112(5):674–96 at 674 as quoted in
Alberta Union of Provincial Employees v Alberta (AG) (1987), 28 C.R.R. 305. (SCA).
16 Pillay para 150.
17 See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; (CC) 1998 (12) BCLR 1517 (CC) (9
October 1998) para 32, for example, where the Constitutional Court held that ‘privacy
 recognises that we all have a right to a sphere of private intimacy and autonomy which
allows us to establish and nurture human relationships’.
18 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (7 June 2000)
para 37.
19 New Nation Movement NPC paras 20–21.
20 New Nation Movement NPC para 22.
21 The right to freedom of association is protected in Article 11 of the European Convention
on Human Rights.
22 The right to freedom of association is protected in Article 10 of the African Charter on
Human and Peoples’ Rights.
23 Unlike Article 11 of the European Convention, Article 10 of the African Charter explicitly
provides that ‘no one may be compelled to join an association’.
24 See Young, James and Webster v The United Kingdom (1981) 4 EHRR 38 para 52;
Sigurjónsson v Iceland (1993) 16 EHRR 462 paras 35–36; Chassagnou v France (1999) 29
EHRR 615 para 103; and Tanganyika Law Society v United Republic of Tanzania; Mtikila v
United Republic of Tanzania n0. 009/2011 ACHPA 2011 para 113.
25 Sigurjónsson v Iceland 30 June 1993, Series A no. 264 para 37.
26 New Nation Movement NPC para 48.
27 New Nation Movement NPC para 49.
28 New Nation Movement NPC paras 52–53.
29 New Nation Movement NPC para 60.
30 New Nation Movement NPC para 54 (footnotes omitted).
31 468 US 609 (1984) 618.
32 See generally Dawood.
33 468 US 609 (1984) 620.
34 Roberts v United States Jaycees 468 U.S. 609 (1984) 620.
35 357 U.S. 449 (1958).
36 NAACP v Alabama 357 U.S. 449 (1958) para 462.
37 Woolman (2013) 44.9.
38 [2002] 1 WLR 448.
39 Royal Society for the Prevention of Cruelty to Animals (RSPCA) v Attorney-General [2002] 1
WLR 448 para 37.
40 515 US 557 (1995).
41 515 US 557 (1995) para 21.
42 Chassagnou v France (2000) 29 EHRR 615.
43 Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA
723 (SCA); 2017 (2) SA 485 (SCA) (20 October 2016) para 8. The Constitutional Court
confirmed the Supreme Court of Appeal’s decision, but in less expansive terms, in Hotz and
Others v University of Cape Town (CCT280/16) [2017] ZACC 10; 2018 (1) SA 369 (CC); 2017
(7) BCLR 815 (CC) (12 April 2017).
44 Hotz para 79.
45 Hotz para 80.
46 Woolman (2013) 44.32.
47 Currie and De Waal (2013) 403.
48 Currie and De Waal (2013) 404.
49 Act 4 of 2000, discussed in detail in Chapter 13.
50 Woolman (2013) 44.35.
51 See Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1 (CC);
2000 (11) BCLR 1211 (CC) (28 September 2000) para 37 where the Constitutional Court
stated: ‘Prejudice can never justify unfair discrimination.’
52 Currie and De Waal (2013) 404.
53 Currie and De Waal (2013) 404.
54 See McWhinney, E (1957) The German Federal Constitutional Court and the Communist
Party decision Indiana Law Journal 32(3):295–312 at 295.
55 424 U.S. 1 (1976).
56 Buckley v Valeo 424 U.S. 1 (1976) para 17.
57 Buckley para 18.
58 (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C); [2005] 3 All SA 45 (C) (20 April 2005).
59 Act 2 of 2000.
60 IDASA para 33.
61 IDASA para 71.
62 IDASA para 71.
63 My Vote Counts NPC v Minister of Justice and Correctional Services and Others (CCT249/17)
[2018] ZACC 17; 2018 (5) SA 380 (CC); 2018 (8) BCLR 893 (CC) (21 June 2018).
64 Buckley para 66.
65 My Vote Counts para 33.
66 My Vote Counts para 36.
67 My Vote Counts para 48.
68 My Vote Counts para 68.
69 My Vote Counts para 72.
70 My Vote Counts para 95.
71 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 16.
72 Ramakatsa para 16.
73 Ramakatsa para 16.
74 Ramakatsa para 65.
75 Ramakatsa para 68.
76 Economic Freedom Fighters Constitution, adopted on 27 July 2013, available at
http://effighters.org.za/documents/constitution/.
77 Case ref no.: GP/2008/0161/L BIOS available at
http://cdn.bizcommunity.com/f/0902/Katy%20Katopodis%20vs%20%20FBJ%20findings.p
df.
78 Forum for Black Journalists [2009] 2 All SA 499 (SAHRC) 510.
79 Forum for Black Journalists 511.
80 Forum for Black Journalists 512.
81 Forum for Black Journalists 511.
82 Forum for Black Journalists 511.
83 (100/06) [2007] ZASCA 56; [2007] 3 All SA 318 (SCA); 2007 (9) BCLR 958 (SCA) (18 May
2007).
84 Forum for Black Journalists 519 referring to Midi Television para 9.
85 Forum for Black Journalists 520.
86 White, S (1997) Freedom of association and the right to exclude The Journal of Political
Philosophy 5(4):373–91 at 373.
87 White (1997) 380.
88 White (1997) 380.
89 White (1997) 381.
90 Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19;
2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC) (1 December 2005) para 89.
91 Fourie para 89. See also Christian Education South Africa v Minister of Education
(CCT4/00) [2000] ZACC 11; 2000 (4) SA 757 (CC); 2000 (10) BCLR 1051 (CC) (18 August
2000) para 36.
92 National Coalition for Gay and Lesbian Equality v Minister of Justice para 38.
93 See Farlam, P ‘Freedom of religion, belief and opinion’ in Woolman and Bishop (2013)
41.13.
94 Community Survey 2016: Distribution of Religious Beliefs.
95 (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757 (CC); 2000 (10) BCLR 1051 (CC) (18 August
2000) para 36.
96 Christian Education South Africa para 36.
97 See generally Dubow, S (1992) Afrikaner nationalism, apartheid and the conceptualization
of race Journal of African History 33(2):209–37.
98 Van der Vyver, JD ‘Religion’ in Joubert, WA (ed) (2009) Law of South Africa 2nd ed Vol 23
197. See also S v Lawrence, S v Negal; S v Solberg (CCT38/96, CCT39/96, CCT40/96) [1997]
ZACC 11; 1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC) (6 October 1997) para 149. Van
der Vyver points out that the Publications Act 42 of 1974 ‘seemingly subject[ed] the entire
censorship system to the dictates of Christian morality’.
99 Lawrence para 149.
100 Lawrence para 151. See also, generally, Sinclair, J (1996) The Law of Marriage volume 1 164–
5.
101 Seedat’s Executors v The Master (Natal) 1917 AD 302 at 307 (per Innes CJ). See also Ismail v
Ismail 1983 (1) SA 1006 (A) 1026; Kerr, AJ (1984) Back to the problems of a hundred or more
years ago: Public policy concerning contracts relating to marriages that are potentially or
actually polygamous South African Law Journal 101(3):445–56 at 445.
102 Fourie para 89.
103 Fourie para 89.
104 Fourie para 90.
105 Fourie para 90.
106 Fourie para 90.
107 Fourie para 94.
108 Fourie para 94.
109 Fourie para 90.
110 Fourie para 90.
111 Fourie para 94.
112 Fourie para 96.
113 Fourie para 94.
114 Fourie para 108.
115 Act 17 of 2006.
 (CCT38/96, CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR 1348 (CC); 1997 (4) SA
116
1176 (CC) (6 October 1997).
117 Lawrence para 119.
118 Everson v Board of Education of the Township of Ewing 330 US 1 (1947) 15–6.
119 Lawrence para 100.
120 Lawrence para 118.
121 Lawrence para 101.
122 Lawrence para 92.
123 Lawrence para 92.
124 Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1;
2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC) (25 January 2002) para 38, where Ngcobo
stated that:
The Court has on two occasions [in Lawrence and Christian Education] considered
the right to freedom of religion. On each occasion, it has accepted that the right to
freedom of religion at least comprehends: (a) the right to entertain the religious
beliefs that one chooses to entertain; (b) the right to announce one’s religious
beliefs publicly and without fear of reprisal; and (c) the right to manifest such
beliefs by worship and practice, teaching and dissemination. Implicit in the right to
freedom of religion is the ‘absence of coercion or restraint’. Thus ‘freedom of
religion may be impaired by measures that force people to act or refrain from acting
in a manner contrary to their religious beliefs’.
See also Christian Education para 18.
125 Prince para 38.
126 Lawrence para 120, quoting from the US Supreme Court judgment of Engel v Vitale 370 US
421 (1962) 431.
127 Lawrence para 102.
128 Lawrence para 122.
129 Lawrence para 121.
130 Lawrence paras 121–2.
131 Lawrence para 122.
132 Lawrence para 123.
133 Lawrence para 123.
134 Lawrence para 123.
135 Lawrence para 179.
136 Act 27 of 1989.
137 Lawrence para 131.
138 Lawrence para 75.
139 Lawrence para 148.
140 Lawrence para 148.
141 Lawrence para 152.
142 Lawrence para 152.
143 Lawrence para 173.
144 Lawrence paras 118–25.
145 Lawrence para 179.
146 Freeman, GC (1983) The misguided search for the constitutional definition of religion
Georgetown Law Journal 71(6):1519–66 quoted in Stone, GR (ed) (1996) Constitutional Law
3rd ed 1546.
147 Lyng v Northwest Indian Cemetery 485 US 439 para 457.
148 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC) (25 January
2002). Although Ngcobo J dissented, these remarks are not inconsistent with the reasoning
of the majority.
149 Act 140 of 1992.
150 Act 101 of 1965.
151 Prince para 42. See also Taylor v Kurstag NO and Others 2005 (1) SA 362 (W); 2005 (7) BCLR
705 (W); [2004] 4 All SA 317 (W).
152 Minister of Justice and Constitutional Development and Others v Garreth Prince and Others
(CCT108/17) [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (18
September 2018).
153 Sweden recognises new file-sharing religion Kopimism (2012, 5 January) available at
http://www.bbc.co.uk/news/technology-16424659.
154 Meacham, T (2019) I, Pastafari: We all have something to learn from the Church of the
Flying Spaghetti Monster The Conversation 18 October 2019. Available at
https://theconversation.com/i-pastafari-we-all-have-something-to-learn-from-the-
church-of-the-flying-spaghetti-monster-124035.
155 Henderson, B (2005) Open letter to the Kansas State School Board. Available at
https://www.spaghettimonster.org/about/open-letter/n.
156 Henderson, B (2009) The Gospel of the Flying Spaghetti Monster. See also the
comprehensive discussion of Pastafarianism in Wikipedia entitled ‘Flying Spaghetti
Monster’. Available at https://en.wikipedia.org/wiki/Flying_Spaghetti_Monster#cite_note-
56.
157 Cavanaugh v Nebraska 178 F.Supp 3d 819 (2016).
158 See generally Bilchitz, D (2011) Should religious organisations be entitled to discriminate?
South African Journal on Human Rights 27(2):219–48; Lenta, P (2012) The right of religious
associations to discriminate South African Journal on Human Rights 28(2):231–57;
Woolman, S (2012) Seek justice elsewhere: An egalitarian pluralist’s reply to David Bilchitz
on the distinction between differentiation and domination South African Journal on
Human Rights 28(2):273–95.
159 (26926/05) [2008] ZAEQC 1; (2009) 30 ILJ 868 (EqC) (27 August 2008).
160 Bilchitz (2011) 221.
161 (40819/17) [2019] ZAGPPHC 52; [2019] 2 All SA 722 (GP) (8 March 2019).
162 Gaum para 3. See also De Vos, P (2019, 12 March) ‘Why Court Ruled Against Dutch
Reformed Church in Same Sex Marriage Case and What it May Mean for Other Churches
Who Discriminate Against Gays and Lesbians’ Constitutionally Speaking accessed on 10
April 2020 at https://constitutionallyspeaking.co.za/why-court-ruled-against-dutch-
reformed-church-in-same-sex-marriage-case-and-what-it-may-mean-for-other-churches-
who-discriminate-against-gays-and-lesbians/.
163 Gaum para 21.
164 Gaum para 22.
165 Gaum para 78.
166 Gaum para 75.
167 Gaum para 81.
168 See MEC for Education, KwaZulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21;
2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) para 55 where the CC
recognised that the community, be it the state or a school, must adopt positive measures
and as a consequence incur expense or even hardship to allow everyone to enjoy all
rightsequally.
169 Pillay para 73.
170 Christian Education para 35.
171 Act 84 of 1996.
172 Christian Education para 35.
173 Christian Education para 37.
174 Christian Education para 19.
175 Christian Education para 23.
176 Christian Education para 27.
177 Christian Education para 51.
178 Christian Education para 51.
179 Christian Education para 51.
180 Christian Education para 51.
181 Prince para 135.
182 Prince para 129.
183 Prince para 129.
184 Prince para 130.
185 Prince para 130.
186 Prince para 83.
187 Prince para 77.
188 This example is based loosely on the facts in Multani v Commission Scolaire Marguerite –
Bourgeoys [2006] 1 SCR 256. In this case, the Canadian Supreme Court struck down a
school board’s decision that prohibited a Sikh child from wearing a kirpan to school on the
grounds that it infringed the right to freedom of religion guaranteed in s 2(a) of the
Canadian Charter of Rights and Freedoms.
189 Torcaso v Watkins 367 U.S. 488.
190 Torcaso v Watkins 367 U.S. 488 para 489.
191 Lawrence para 148.
192 Wittmann v Deutscher Schulverein 1998 (4) SA 423 (T).
193 Lawrence para 103.
194 Quoted by Farlam (2013) 41.51.
195 See the earlier discussion in this chapter on the issue of coercion versus even-handedness.
196 (29847/2014) [2017] ZAGPJHC 160; [2017] 3 All SA 943 (GJ); 2017 (6) SA 129 (GJ) (27 June
2017).
197 Organisasie vir Godsdienste-Onderrig en Demokrasie para 102.
198 Act 84 of 1996.
199 Organisasie vir Godsdienste-Onderrig en Demokrasie para 80.
200 Organisasie vir Godsdienste-Onderrig en Demokrasie para 88.
201 Organisasie vir Godsdienste-Onderrig en Demokrasie para 92.
202 Organisasie vir Godsdienste-Onderrig en Demokrasie para 93.
203 Organisasie vir Godsdienste-Onderrig en Demokrasie para 96.
204 See also De Vos, P (2016, 14 November) ‘Why state schools cannot promote a Christian
ethos’ Constitutionally Speaking accessed on 15 April 2020 at
https://constitutionallyspeaking.co.za/why-state-schools-cannot-promote-a-christian-
ethos/.
205 Currie and De Waal (2013) 330.
206 1998 (4) SA 423 (T) para 449.
207 Act 25 of 1961.
208 1983 (1) SA 1006 (A).
209 Farlam (2013) 41.54.
210 Fourie para 94.
211 Fourie para 96.
212 Fourie para 98.
213 Act 120 of 1998.
214 Gumede (born Shange) v President of Republic of South Africa and Others (CCT 50/08)
[2008] ZACC 23; 2009 (3) SA 415 (CC); 2009 (3) BCLR 243 (CC) (8 December 2008) para 16.
See also Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415
(CC); 2013 (8) BCLR 918 (CC) (30 May 2013) para 26.
215 Gumede para 21 and Mayelane para 26.
216 S 1 of the RCMA.
217 Mayelane para 70.
218 Christian Education para 24.
219 Section 6(4) of the Constitution.
220 Christian Education para 23.
221 Currie and De Waal (2013) 626–7.
222 Currie and De Waal (2013) 627.
223 South African Human Rights Commission (2006) The Exclusionary Policies of Voluntary
Associates: Constitutional Considerations.
224 South African Human Rights Commission (2006) 15.
225 Adopted by the General Assembly of the UN, Resolution 2200(xxi) of 16 December 1966.
226 Adopted by the Organisation of African Unity at the 18th Conference of the Heads of State
and Government on 27 June 1981, Nairobi, Kenya. The treaty entered into force on 21
October 1986.
227 In Amnesty International and Others v. Sudan, African Commission on Human and
Peoples’ Rights, Comm. No. 48/90, 50/91, 52/91, 89/93 (1999) para 82, the Commission
appears to be advocating that restrictions on the freedom of association must be
proportionate and appropriate to the objectives of the law.
228 Adopted by General Assembly Resolution 47/135 of 18 December 1992.
229 S 5 of the Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities Act 19 of 2002.
230 Section 181 of the Constitution.
231 Report of the Hearings on the Commercialisation of Religion and Abuse of People’s Belief
Systems (2017), accessed on 17 April 2020 at
http://www.crlcommission.org.za/docs/Final%20Report%20on%20the%20Commercialisat
ion%20of%20Religion.pdf.
 Report of the Hearings on the Commercialisation of Religion and Abuse of People’s Belief
232 Systems 39.
233 Banda, C (2019) Redefining religion? A critical Christian reflection on CRL Rights
Commission’s proposal to regulate religion in South Africa Verbum et Ecclesia 40(1):7.
234 Second Certification para 24.
235 Christian Education para 23.
236 Mandla and Another v Dowell Lee and Another [1983] 1 All ER 1062 (HL).
237 Pillay para 48.
238 Pillay para 49.
239 Pillay para 50.
240 These facts were drawn from: Kleinfontein raises old questions (2013, 31 May) available at
http://www.iol.co.za/news/politics/kleinfontein-raises-old race-questions.
241 Christian Education para 26.
242 Lovelace v Canada CCPR/C/13/D/24/1977, United Nations International Covenant on Civil
and Political Rights Communications No 24/1977, 30 July 1981.
243 2005 (1) SA 362 (W); 2005 (7) BCLR 705 (W); [2004] 4 All SA 317 (W).
244 The edict is referred to as Cherem in Jewish law.
245 Taylor v Kurtstag para 58.
246 Taylor v Kurtstag para 23.
247 Taylor v Kurtstag para 26.
248 Taylor v Kurtstag para 58.
249 Taylor v Kurtstag para 58.
250 Taylor v Kurtstag para 58.
251 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
252 Act 38 of 1927.
253 Bhe para 43.
254 Bhe para 44.
255 Bhe para 76.
256 Bhe para 80.
257 Bhe para 15.
258 Bhe para 8.
259 Bhe para 91.
260 Bhe para 92.
261 Bhe para 115.
262 Bhe para 116.
263 Act 81 of 1987.
264 Bhe para 117.
265 (CCT 50/08) [2008] ZACC 23; 2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC) (8 December
2008).
266 Act 16 of 1985.
267 Proclamation R151 of 1987.
268 Gumede para 10.
269 Gumede para 13.
270 Gumede para 14.
271 S 6(2) of the Constitution.
272 See Head of Department: Mpumalanga Department of Education and Another v Hoërskool
Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177
(CC) (14 October 2009).
273 (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (14 October
2009) para 45.
274 Hoërskool Ermelo (CC) para 45.
275 Hoërskool Ermelo (CC) paras 45–9.
276 Online Oxford English Dictionary available at
http://www.oxforddictionaries.com/definition/english/language.
277 Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 (CCT39/95)
[1996] ZACC 4; 1996 (3) SA 165 (CC); 1996 (4) BCLR 537 (CC) (4 April 1996) para 49.
278 Act 3713 of 1991.
279 Example quoted in Woolman, S ‘Community rights: Language, culture and religion’ in
Woolman and Bishop (2013) 58.44.
280 S 1 of the PEPUDA.
281 See Governing Body of the Rivonia Primary School and Another v MEC for Education:
Gauteng Province and Others (11/08340) [2011] ZAGPJHC 182; [2012] 1 All SA 576 (GSJ);
2012 (5) BCLR 537 (GSJ) (7 December 2011); Governing Body of the Rivonia Primary School
and Another v MEC for Education: Gauteng Province and Others (161/12) [2012] ZASCA
194; 2013 (1) SA 632 (SCA); [2013] 1 All SA 633 (SCA) (30 November 2012); Hoërskool
Ermelo (CC) and Minister of Education (Western Cape) v Mikro Primary School Governing
Body (140/2005) [2005] ZASCA 66; [2005] 3 All SA 436 (SCA) (27 June 2005).
282 (140/2005) [2005] ZASCA 66; [2005] 3 All SA 436 (SCA) (27 June 2005).
283 Mikro Primary School paras 29 and 32.
284 Act 3 of 2000. See Mikro Primary School para 36.
285 Mikro Primary School para 37.
286 Mikro Primary School para 1.
287 Mikro Primary School para 5.
288 Mikro Primary School para 43.
289 Mikro Primary School para 43.
290 (219/2008) [2009] ZASCA 22; 2009 (3) SA 422 (SCA); [2009] 3 All SA 386 (SCA) (27 March
2009).
291 Hoërskool Ermelo (SCA) para 32.
292 Hoërskool Ermelo (SCA) para 59.
293 Hoërskool Ermelo (SCA) para 74.
294 Hoërskool Ermelo (SCA) para 21.
295 Hoërskool Ermelo (SCA) paras 23–4.
296 Head of Department: Mpumalanga Department of Education and Another v Hoërskool
Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177
(CC) (14 October 2009).
297 Hoërskool Ermelo (CC) para 38.
298 Hoërskool Ermelo (CC) para 40.
299 Hoërskool Ermelo (CC) para 47.
300 Hoërskool Ermelo (CC) para 52.
301 Hoërskool Ermelo (CC) para 40.
302 Hoërskool Ermelo (CC) para 53.
303 Hoërskool Ermelo (CC) para 57.
304 Hoërskool Ermelo (CC) para 59.
305 Hoërskool Ermelo (CC) para 51.
306 Hoërskool Ermelo (CC) para 58.
307 Hoërskool Ermelo (CC) para 72.
308 Hoërskool Ermelo (CC) para 74.
309 Hoërskool Ermelo (CC) para 76.
310 Hoërskool Ermelo (CC) para 77.
311 Hoërskool Ermelo (CC) para 78.
312 Hoërskool Ermelo (CC) para 88.
313 Afriforum and Another v University of the Free State (CCT101/17) [2017] ZACC 48; 2018 (2)
SA 185 (CC); 2018 (4) BCLR 387 (CC) (29 December 2017).
314 UFS para 37.
315 UFS paras 44 and 45.
316 UFS para 48.
317 UFS para 50.
318 UFS para 83.
319 S 6(2) of the Constitution.
320 (20827/2014) [2016] ZASCA 11; [2016] 2 All SA 340 (SCA) (10 March 2016).
321 Lourens paras 11-2.
322 Joint Rules of Parliament: R 220(1).
323 Joint Rules of Parliament: R 220(2). Rule 220(3) provides that ‘[t]he cover page of a Bill must
specify which language version is (a) the official text; and (b) an official translation’ and
rule 220(4) provides that ‘[i]n parliamentary proceedings only the official text of a bill is
considered, but the Secretary must ensure that all amendments to the official text are
reflected in the official translation or translations before the official text is sent to the
President for assent’.
324 Bishop, Brickhill and Moshikaro ‘Constitutional Law’ 2016(1) Juta’s Quarterly Review
2.14.2.
325 Act 12 of 2012. See Pretorius, JL (2013) The use of official languages act: Diversity
confirmed Potchefstroom Electronic Law Journal 16(1):281.
326 S 6(4) of the Constitution.
327 See the comments of O’Regan J when considering the meaning of equitable in the context
of s 15(2) in Lawrence para 122.
328 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September
1996).
329 First Certification para 209.
330 Act 59 of 1995.
331 S 3 of the Pan SA Language Board Act.
332 S 11 of the Pan SA Language Board Act deals with the procedure regarding complaints
lodged with the Board.
POLITICAL AND PROCESS
RIGHTS

15.1 The right to freedom of expression

15.1.1 Introduction
15.1.2 Scope and ambit of the right to freedom of expression
15.1.3 Freedom of the press and other media
15.1.3.1 Introduction
15.1.3.2 The role of the press
15.1.3.3 Access to and broadcasting of court proceedings
15.1.3.4 Access to and broadcasting of criminal proceedings
15.1.3.5 Access to and reporting on proceedings concerning children
15.1.3.6 Access to and reporting of divorce proceedings
15.1.3.7 Access to and reporting on proceedings involving state security
15.1.3.8 Prior restraints
15.1.3.9 The regulation of broadcasting
15.1.4 Hate speech
15.1.4.1 Introduction
15.1.4.2 The scope and extent of hate speech

15.2 The rights to freedom of assembly, demonstration, picket and petition

15.2.1 Introduction
15.2.2 Scope and ambit of the right to assembly
15.2.3 Distinguishing between assemblies, demonstrations, pickets and petitions
15.2.3.1 Assemblies and demonstrations
 15.2.3.2 Pickets
15.2.3.3 Petitions
15.2.4 The Regulation of Gatherings Act 205 of 1993
15.2.5 Liability for damage caused during a gathering

15.3 Political rights

15.3.1 Introduction
15.3.2 The right to make political choices and the role of political parties
15.3.2.1 Introduction
15.3.2.2 The regulation of political parties
15.3.3 State funding of political parties
15.3.4 The right to free, fair and regular elections
15.3.5 The right to vote
15.3.5.1 Introduction
15.3.5.2 Regulating the right to vote
15.3.5.3 Exclusions from the right to vote
15.3.5.3.1 Introduction
15.3.5.3.2 Prisoners
15.3.5.3.3 Citizens working abroad
15.3.6 The right to stand for and hold office

Summary

15.1 The right to freedom of expression

15.1.1 Introduction
In the pre-democratic era, the apartheid state enforced severe forms of
censorship to limit the range of political speech as well as the range of
artistic expression allowed in the country. If, for example, a person was
banned in terms of the Internal Security Act,1 not only was he or she
prohibited from speaking in public and publishing any written
materials, but the media were also prohibited from broadcasting,
publishing or reporting his or her words. Many prominent South
Africans were served with banning orders during the apartheid era,
including Chief Albert Luthuli, Steven Bantu Biko and Winnie
Madikizela Mandela. Apart from banning individuals, the apartheid
state also regularly banned books, films and plays because of their
political or sexual content. Banning made it a criminal offence to
possess, read or watch these products of artistic expression. During the
various states of emergency which were declared for long periods in the
1980s, the ability of newspapers to report on the actions of the police
and the military were severely limited by law. Thus, in this pre-Internet
era, the dark pall of censorship hung over South Africa. These
restrictions did not only constitute a denial of democracy. They also
exacerbated the impact of the systemic violations of other fundamental
human rights in South Africa.2

Black Wednesday
On 12 September 1977, Steve Bantu Biko – who
espoused the idea of black consciousness – died at
the hands of the apartheid police while in detention.
Biko’s funeral was attended by about 20 000 people.
Partly in response to these events, on the morning of
19 October 1977, scores of Black Consciousness
activists were arrested and detained under section 10
of the Internal Security Act.3
In addition to the large number of activists
detained, about 18 organisations were banned, as well
as three newspapers, namely The World, Weekend
World and Pro Veritate. Journalists who worked for
these and other newspapers were also detained,
including Mr Percy Qoboza, the editor of The World,
and Mr Aggrey Klaaste, the former editor of the
Sowetan.
This day came to be known as Black Wednesday. In
South Africa today, 19 October is still commemorated
with the aim of celebrating media freedom and to raise
awareness about real or perceived threats to the
freedom of the media.
Censorship is incompatible with South Africa’s present commitment to
a society based on a ‘constitutionally protected culture of openness and
democracy and universal human rights for South Africans of all ages,
classes and colours’.4 To prevent a recurrence of censorship, section 16
of the Constitution of the Republic of South Africa, 1996 explicitly
guarantees the right to freedom of expression for everyone. Section
16(1) states that this right includes:
• freedom of the press and other media
• freedom to receive or impart information or ideas
• freedom of artistic creativity
• academic freedom and freedom of scientific research.

However, section 16 does not protect all forms of expression. This is

because section 16(2) explicitly excludes several forms of expression
from the protections contained in section 16(1). Thus, propaganda for
war, incitement of imminent violence and advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm are not constitutionally protected speech.
Section 16(2) does not prohibit expression – it merely ‘defines the
boundaries beyond which the right to freedom of expression does not
extend’.5 This means all expression is protected except expression that
falls within section 16(2). The exclusion of section 16(2) expression from
constitutional protection represents an ‘acknowledgment that certain
expression does not deserve constitutional protection because, among
other things, it has the potential to impinge adversely on the dignity of
others and cause harm’.6
The right to freedom of expression is one of a ‘web of mutually
supporting rights’ in the Constitution.7 It is closely related to freedom of
religion, belief and opinion, the right to dignity, the right to freedom of
association, the right to vote and to stand for public office, and the right
to assemble. The Constitutional Court has considered the purpose
behind the right to freedom of expression in a number of cases.8 At the
heart of the guarantee of freedom of expression is the recognition of the
importance, ‘both for a democratic society and for individuals
personally, of the ability to form and express opinions, whether
individually or collectively, even where those views are controversial’.9
Freedom of expression, therefore, is important for two reasons. First,
freedom of expression contributes to the goal of establishing a
democratic society. Second, freedom of expression constitutes an
important aspect of what it is to be human – it empowers individuals,
bestows a certain agency on us, helps us to make informed and
hopefully wise life choices and to decide for ourselves who we are and
how we want to live our lives. O’Regan J referred to these two goals in
her judgment in South African National Defence Union v Minister of
Defence, where she held that:
[f]reedom of expression lies at the heart of a democracy. It is valuable for many
reasons, including its instrumental function as a guarantor of democracy, its
implicit recognition and protection of the moral agency of individuals in our
society and its facilitation of the search for truth by individuals and society
generally. The Constitution recognises that individuals in our society need to
be able to hear, form and express opinions and views freely on a wide range of
matters.10

Given South Africa’s oppressive past, it is not surprising that the

Constitutional Court has emphasised the important role freedom of
expression plays in promoting democracy. In S v Mamabolo, for
example, Kriegler J held that:
[h]aving regard to our recent past of thought control, censorship and enforced
conformity to governmental theories, freedom of expression – the free and
open exchange of ideas – is no less important than it is in the United States of
America. It could actually be contended with much force that the public
interest in the open market-place of ideas is all the more important to us in this
country because our democracy is not yet firmly established and must feel its
way.11

In the absence of freedom of expression, individuals will not be able to

take part in the democratic process in a free and informed manner.
Democracy only functions well in a society in which it is possible for an
individual to change his or her mind. This is only possible when
individuals are free to report on events without fear, to express their
opinions and beliefs, and to receive such communication from others.
This view of freedom of expression is commonly related to the search
for truth, which is said to be best facilitated in an ‘open market-place of
ideas’.12 Where there is a free competition of ideas, the best ideas, or the
truth whatever that may be, will eventually triumph. However, as the
Constitutional Court has pointed out, ‘[t]hat obviously presupposes that
both the supply and the demand side of the market will be unfettered’.13
In a deeply unequal society in which not everyone has equal access to
information and in which the voices of some may be privileged and may
carry more weight than others, it is unclear whether such a free
marketplace of ideas can ever exist.

Is there truly a free marketplace of ideas?

It is often said that in a society in which freedom of
expression is vigorously protected, the search for the
truth in the free marketplace of ideas will allow the
best ideas to rise to the top and the worst and most
dangerous ideas to sink to the bottom. However,
consider this: no citizen has access to all the media
sources available in the country, nor to all the books,
films and other forms of artistic expression. Nor would
most citizens be able to make their voices heard
outside their immediate circle of friends – even in the
age of Twitter and other forms of social media. It can
be argued that a person’s level of education, command
of the English language, race, gender and sexual
orientation, and relative wealth partly determine to
what extent he or she would have the opportunity to
make his or her voice heard in the public sphere. Even
on talk radio stations, only those people who have
access to a telephone and, in the case of cell phones,
to airtime, will be able to call a phone-in programme.
Power, so the argument goes, is unevenly distributed
and even in a democracy in which free speech is
guaranteed, the mass media in particular contribute to
the manufacturing of a consensus in which the voices
of the marginalised are drowned and the interests of
the powerful are promoted.
In their book, Manufacturing Consent: The Political
Economy of the Mass Media, Herman and Chomsky
argue that it is the function of the mass media to
amuse, entertain and inform, ‘and to inculcate
individuals with the values, beliefs, and codes of
behaviour that will integrate them into the institutional
structures of the larger society’.14 To fulfil this role
requires systematic propaganda. They continue:
In countries where the levers of power are in the hands of a state
bureaucracy, the monopolistic control over the media, often
supplemented by official censorship, makes it clear that the
media serve the ends of a dominant elite. It is much more difficult
to see a propaganda system at work where the media are private
and formal censorship is absent. This is especially true where the
media actively compete, periodically attack and expose corporate
and governmental malfeasance, and aggressively portray
themselves as spokesmen for free speech and the general
community interest. What is not evident (and remains
undiscussed in the media) is the limited nature of such critiques,
as well as the huge inequality in command of resources, and its
effect both on access to a private media system and on its
behavior and performance. A propaganda model focuses on this
inequality of wealth and power and its multilevel effects on mass-
media interests and choices. It traces the routes by which money
and power are able to filter out the news fit to print, marginalize
dissent, and allow the government and dominant private interests
to get their messages across to the public. The essential
ingredients of our propaganda model, or set of news ‘filters’, fall
under the following headings: (1) the size, concentrated
ownership, owner wealth, and profit orientation of the dominant
mass-media firms; (2) advertising as the primary income source
of the mass media; (3) the reliance of the media on information
provided by government, business, and ‘experts’ funded and
approved by these primary sources and agents of power; (4) ‘flak’
as a means of disciplining the media; and (5) ‘anticommunism’
as a national religion and control mechanism … The elite
domination of the media and marginalization of dissidents that
results from the operation of these filters occurs so naturally that
media news people, frequently operating with complete integrity
 and goodwill, are able to convince themselves that they choose
and interpret the news ‘objectively’ and on the basis of
professional news values. Within the limits of the filter constraints
they often are objective; the constraints are so powerful, and are
built into the system in such a fundamental way, that alternative
bases of news choices are hardly imaginable.15

De Vos argues that this argument is even more

convincing in the digital age, in which individuals can
produce and publish content on the internet and – on
paper – have access to vast digital resources on social
media platforms and through search engines like
Google.
The problem is that so many people are producing content that
audiences are bombarded with vast amounts of information
‘which they must collate, sort, filter, and block’. But the collation,
sorting, filtering and blocking of information is not conducted (or
not only conducted) by individuals themselves, but also by private
organizations (like Google and Facebook) who do this on our
behalf. This means that those who organize, sort, filter, and limit
access to information wield enormous cultural power.16

Freedom of expression is not only of pivotal importance for the healthy

functioning of a democracy. As pointed out above, the Constitutional
Court has also emphasised a second goal of freedom of expression – to
safeguard the moral agency of individuals. This means that freedom of
expression has a personal dimension as extensive access to different
types of information allows an individual to make relatively informed
choices about who they are, how they want to live and what they want
to believe. Dealing with this aspect of freedom of expression, the Court
held that:
[F]reedom of speech is a sine qua non for every person’s right to realise her or
his full potential as a human being, free of the imposition of heteronomous
power. Viewed in that light, the right to receive others’ expressions has more
than merely instrumental utility, as a predicate for the addressee’s meaningful
exercise of her or his own rights of free expression. It is also foundational to
each individual’s empowerment to autonomous self-development.17
Facebook as indirect censor on information
When somebody logs onto Facebook, he or she does
not see the newsfeed posts of his or her Facebook
friends in the order these were posted. Instead, a
Facebook algorithm predicts user preferences to guide
not only what advertisements a user might see on his
or her Facebook page, but also to dictate the way his
or her social media feed, including newsfeed, is
arranged. Facebook’s algorithm for ranking and
displaying content on a person’s News Feed is based
on four factors: (1) The Inventory of all posts available
to display; (2) Signals that tell Facebook what each
post is; (3) Predictions on how you will react to each
post; and (4) A Final Score assigned to the content
based on all factors considered. Facebook says its aim
is to predict what posts (or adverts) you are likely to
interact with. In other words, it will try not to show you
something that is not to your liking or that you may not
agree with.
The ways and the degree to which the News Feed
de facto limits or prevents exposure to attitude-
challenging information is subject to ongoing research.
It is clear, however, that the News Feed algorithm is
biased, by design, toward creating and reinforcing
echo chambers, in which users are exposed only to
information from like-minded individuals, and toward
producing agreement. This inevitably follows from the
fact that people similar to each other tend to be
friends on Facebook, combined with the fact, as noted
above, that the primary value driving story selection on
the News Feed is friend relationships. The result is a
Feed of very little substantive news intermingled with a
lot of other personalised information: commentary,
gossip, personal observations, commercial messages,
 and so on. Facebook’s algorithm therefore selects what
information you will see on the platform and what not.
In this manner Facebook indirectly censors the
information that you will have access to – at least on
the Facebook platform. This, so the argument goes,
endangers democratic deliberation and contestation
and therefore democracy itself.

Greater latitude for political speech

Although the Constitutional Court has accepted that
the right to freedom of expression serves both
democracy-promoting and human dignity-reinforcing
goals, it has tended to favour political speech over
other forms of expression, especially at the limitation
stage of analysis. In Khumalo and Others v Holomisa,
for example, the Court held that when it comes to
determining the reasonableness of a publication,
‘greater latitude is usually allowed in respect of
political discussion’.18 And, in Thint Holdings (Southern
Africa) (Pty) Ltd and Another v National Director of
Public Prosecutions, Zuma v National Director of
Public Prosecutions, the Court held that where its
jurisprudence touches on the status of political
information, ‘it tends towards permitting greater
dissemination rather than the restriction of it’.19

15.1.2 Scope and ambit of the right to freedom of expression

Unlike the First Amendment of the United States Constitution,20 section
16 does not protect the right to freedom of speech, but rather the right
to freedom of expression. The term ‘expression’ is much broader than
the term ‘speech’. It thus includes not only words, but also expressive
activities such as symbolic acts, for example burning or waving a flag,21
wearing items of clothing, such as wearing a party-political T-shirt, and
physical gestures, such as raising a fist or gesturing with a finger.
In its judgment in Phillips and Another v Director of Public
Prosecutions and Others,22 the Constitutional Court confirmed that the
term ‘expression’ includes not only words but also expressive activities.
It held that a statutory provision that prohibited any person from
appearing or performing naked or semi-naked at a venue that was
licensed to sell alcohol infringed the right to freedom of expression. This
is because freedom of expression includes freedom of artistic creativity
and the freedom to receive and impart information.23 In principle, a
work of art, for example a naked painting of the President of the
country, would also constitute expression and would thus fall within the
ambit of section 16.
Apart from expressive activities, the Constitutional Court has also
held that the right to freedom of expression includes, not only
information or ideas that are favourably received or regarded as
inoffensive or as a matter of indifference, but also those ideas that
offend, shock or disturb.24 Even false speech is, in principle, protected.
However, false speech may be more easily limited as the justification,
thereof, may be more difficult to establish in terms of the provisions of
the limitation clause.25
Although the Constitutional Court has interpreted the term
‘expression’ broadly, it is important to note that the right to freedom of
expression does not encompass every form of expression. As we have
already seen, section 16(2) of the Constitution expressly excludes
certain forms of expression from the scope and ambit of the right,
namely propaganda for war, incitement of imminent violence and
advocacy of hatred that is based on one or other of the listed grounds,
namely race, ethnicity, gender or religion and that amounts to
‘incitement to cause harm’. Even though the Constitution itself does not
ban these forms of expression, it does not protect them because the
‘pluralism and broadmindedness that is central to an open and
democratic society’ can be undermined by such forms of expression
‘which seriously threatens democratic pluralism itself’.26 Section 16(2)
recognises the fact that some forms of expression have the potential to
impair the exercise and enjoyment of other important rights, such as
the right to dignity, as well as state interests, such as the pursuit of
national unity and reconciliation.27 The Constitution therefore
recognises that the state has a particular interest in regulating this type
of expression:
because of the harm it may pose to the constitutionally mandated objective of
building the non-racial and non-sexist society based on human dignity and the
achievement of equality. There is accordingly no bar to the enactment of
legislation that prohibits such expression. Any regulation of expression that
falls within the categories enumerated in section 16(2) would not be a
limitation of the right in section 16.28

We will discuss these provisions in more detail below with specific

reference to the question of hate speech.
While the forms of expression listed in section 16(2) of the
Constitution are not protected by the right to freedom of expression
guaranteed in section 16(1), the Constitutional Court has held that all
other forms of expression are protected. This means that any
restrictions that are imposed by the state, as well as, where appropriate,
private institutions, on any form of expression that falls outside section
16(2) will amount to an infringement of the right to freedom of
expression. It will accordingly have to be justified in terms of the
limitation clause if the limitation was imposed in terms of a law of
general application.
In Laugh It Off Promotions CC v South African Breweries
International (Finance) BV t/a Sabmark International and Another, for
example, the Constitutional Court held that:
[w]e are obliged to delineate the bounds of the constitutional guarantee of free
expression generously. Section 16 is in two parts: the first subsection sets out
expression protected under the Constitution. It indeed has an expansive reach
which encompasses freedom of the press and other media, freedom to receive
or impart information or ideas, freedom of artistic creativity, academic
freedom and freedom of scientific research. The second part contains three
categories of expression which are expressly excluded from constitutional
protection. It follows clearly that unless an expressive act is excluded by section
16(2) it is protected expression. Plainly, the right to free expression in our
Constitution is neither paramount over other guaranteed rights nor limitless.
 As Kriegler J in S v Mamabolo puts it: ‘With us it is not a pre-eminent freedom
ranking above all others. It is not even an unqualified right. In appropriate
circumstances authorised by the Constitution itself, a law of general
application may limit freedom of expression.’ (our emphasis) 29

An important consequence of this approach is that section 16(1) of the

Constitution includes certain forms of expression that are often
excluded in other jurisdictions, such as pornography, child
pornography and commercial speech.30 Although these forms of
expression are included in section 16(1) and thus protected expression,
the Constitutional Court has indicated that it would be much easier to
justify limitations on these forms of speech in accordance with the
limitation clause.
This approach is clearly illustrated in the Constitutional Court’s
judgment in De Reuck v Director of Public Prosecutions (Witwatersrand
Local Division) and Others.31 Mr De Reuck, who was a film producer,
was found in possession of child pornography and was charged in the
regional magistrates’ court with contravening section 27(1) of the Films
and Publications Act.32 This section provided that a person was guilty of
an offence if he or she created, produced, imported or possessed any
publication or film which contained child pornography. Section 1 of the
Act defined child pornography as including ‘any image, real or
simulated, however created, depicting a person who is or who is shown
as being under the age of 18 years, engaged in sexual conduct or a
display of genitals which amounts to sexual exploitation, or
participating in, or assisting another person to engage in sexual conduct
which amounts to sexual exploitation or degradation of children’.
The Constitutional Court dismissed an appeal of Mr De Reuck and
found that section 27(1) of the Films and Publications Act was
constitutionally valid. In arriving at this conclusion, the Court explained
that it first had to decide whether section 27(1) of the Act infringed
section 16(1) of the Constitution and if it did, whether that infringement
was a reasonable and justifiable limitation in an open and democratic
society based on human dignity, equality and freedom.33 In so far as the
first issue was concerned, the NDPP argued that section 27(1) of the Act
did not infringe the right to freedom of expression because child
pornography, as defined in the Act, could not be classified as
expression, but rather as a form of unprotected speech. This is because,
the NDPP argued further, child pornography does not serve any of the
values that underlie the right, namely truth seeking, free political
activity and self-fulfilment.34
Although child pornography was classified as unprotected speech in
other jurisdictions such as the United States, the Court held that the
same approach could not be adopted in South Africa. This is because in
South Africa all forms of expression except for those listed in section
16(2) are protected by section 16(1). Child pornography, therefore, did
fall into the scope and ambit of the right to freedom of expression and
the constitutional validity of section 27(1) of the Act had to be decided
not at the first stage of the two-stage limitation analysis, but rather at
the second stage, namely the limitation stage.35
After setting out these principles, the Court turned to consider
whether section 27(1) of the Films and Publications Act was a
reasonable and justifiable limitation of the right to freedom of
expression. The Court found that it was, for the following reasons:
• First, the limitation of the right to freedom of expression by
prohibiting the possession of child pornography was not particularly
serious. This is because child pornography is a form of expression
that has very little value, it is found on the periphery of the right and
is a form of expression that is not protected as part of the freedom of
expression in other democratic societies.36
• Second, the purpose of section 27(1) of the Films and Publications
Act was extremely important. This is because it was aimed at curbing
child pornography which not only undermines the dignity of all
children, but is also harmful to those children who are used in its
production. In addition, child pornography can be used to groom
children for sex, to reinforce the belief that sex with children is
normal and to fuel the fantasies of paedophiles before they commit
acts of abuse. It is regarded as evil in all democratic societies.37
• Third, while section 27(1) of the Films and Publications Act did not
create a defence for researchers and documentary film makers who
possess child pornography as ‘raw material’ for their legitimate
academic or documentary projects, section 22 of the Act created a
process in terms of which a person who wishes to possess or
otherwise deal with child pornography could apply to an executive
committee of the Film and Publications Board to do so. This meant
that section 27(1) did not impose a blanket prohibition on the
possession of child pornography and could not, therefore, be
described as overbroad.38

Can the findings in the De Reuck case be

applied to legislation that limits other forms
of pornographic expression?
In the De Reuck judgment, the Constitutional Court
found that child pornography had little value. Taking
into account the fact that freedom of expression was
guaranteed to help secure democracy and to protect
the moral agency of individuals, there was clearly little
or no link between the production, possession or
consumption of child pornography and the promotion
of these goals.
However, it has been argued that there is a clear
distinction between child pornography – which harms
children – and other forms of pornography produced
and consumed by consenting adults. Adult
pornography, so it is argued, can play an important role
in protecting the moral agency of individuals who can
be empowered by pornography to make important life
choices about their true sexual orientation. For
example, in the United States context, Lucas 39 argues
in favour of the value of specifically gay pornography
for gay men struggling with their sexual identities as
‘gay porn can act to liberate as well as educate a
historically closeted segment of society’ and ‘can
validate homosexuality and create community. It can
 be an outlet, perhaps the only outlet, for one’s desires
– desires that are generally suppressed if not
condemned by society as a whole’.40
It might therefore not be possible to apply the
findings in the De Reuck case to legislation that limits
other forms of pornographic expression because the
harm, if any, of adult pornography would be far more
difficult to quantify or prove. Also, for some segments
of society at least, it might play an important educative
and liberating role.

Do you agree with these sentiments and if so how

should we regulate the dissemination of adult
pornography?

15.1.3 Freedom of the press and other media

15.1.3.1 Introduction
Apart from the general right to freedom of expression, section 16(1) of
the Constitution lists certain specific forms of protected expression.
These are:
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

Of these four specific forms of protected expression, the right to

freedom of the press and other media has received the most attention
from the courts and commentators. For the purposes of this book,
therefore, we are going to focus on this aspect of the right only.

15.1.3.2 The role of the press

The mere fact that the right to freedom of the press and other media has
been expressly included in section 16(1) of the Constitution confirms
the important role that the press and other media play in a democratic
society. The Constitutional Court has referred to this role in a number of
cases.41 In these cases, the Court has held that the right of every citizen
to receive information and ideas depends largely on the freedom of the
press and other media. The press and other media, therefore, are key
agents in ensuring that this aspect of the right to freedom of expression
is respected. Freedom of the media also plays a pivotal role in securing
the enjoyment of other rights. This is in line with the Constitutional
Court’s assertion (discussed above) that freedom of expression forms
part of a web of mutually supporting rights that underpin democracy.
Apart from ensuring that the right to receive information and ideas
is respected, the Constitutional Court has also held that the press and
other media play a key role in ensuring that government is open,
responsive and accountable to the people. This is because:
[i]t is the function of the press and other media to ferret out corruption,
dishonesty and graft wherever it may occur and to expose its perpetrators. The
press must reveal dishonest mal- and inept administration. … It must advance
the communication between the governed and those who govern.42

In light of these responsibilities, it is important to note that the press

and other media are not simply bearers of the right to freedom of
expression, but are also bearers of constitutional obligations with
respect to freedom of expression. In Khumalo and Others v Holomisa,43
the Constitutional Court summed up the rights and obligations of the
media as follows:
In a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens both with information
and with a platform for the exchange of ideas which is crucial to the
development of a democratic culture. As primary agents of the dissemination
of information and ideas, they are, inevitably, extremely powerful institutions
in a democracy and have a constitutional duty to act with vigour, courage,
integrity and responsibility. The manner in which the media carry out their
constitutional mandate will have a significant impact on the development of
our democratic society. If the media are scrupulous and reliable in the
performance of their constitutional obligations, they will invigorate and
strengthen our fledgling democracy. If they vacillate in the performance of
their duties, the constitutional goals will be imperilled. The Constitution thus
asserts and protects the media in the performance of their obligations to the
broader society, principally through the provisions of section 16.44

Taking videos of members of the police

In the modern era, members of the media – like the
rest of us – carry cellphones and can make video
recordings of the police. When this happens, members
of the police sometimes object and try to confiscate
the journalist’s phone. For example, in 2020 on the
day of the delivery of the national budget in
Parliament, a journalist was prevented from recording
an incident where the police prevented an opposition
party leader from entering Parliament.45 This clearly
constitutes an infringement on the right to freedom of
expression as it applies to the media. It is also in
conflict with the South African Police Services (SAPS)
own guidelines. Standing Order (General) 156 entitled
Media Communication in the South African Police
Service makes it clear that a member of the media
may not be prohibited from video recording police
officers as long as this does not interfere with the work
done by the police. Section 10(3) of the Standing
Order states as follows:
(a) Although the media may be prohibited in terms of
section 69 of the South African Police Service Act,
1995, from publishing certain photographs and
sketches, a media representative may not be
prohibited from taking photographs or making
visual recordings.
(b) A media representative who conducts himself or
herself in a manner that may disturb evidence on a
crime scene or may hinder or obstruct a member
in the exercise of his or powers or the performance
of his or her duties or functions in a cordoned-off
 area, must be courteously requested to leave the
crime scene or cordoned-off area. If the media
representative refuses, he or she must be escorted
out of the restricted area.
(c) A media representative may under no
circumstances be verbally or physically abused
and cameras or other equipment may not be
seized unless such camera or equipment may be
seized as an exhibit in terms of any law. Under no
circumstances whatsoever, may a member wilfully
damage the camera, film, recording or other
equipment of a media representative.

Although this is not expressly stated in the standing

orders and directives issues by the SAPS, the SAPS
may not prevent ordinary members of the public from
video recording SAPS members either. The same
protection enjoyed by members of the media is also
enjoyed by ordinary members of the public. When an
SAPS member attempts to stop a member of the
public from videoing the SAPS or try to confiscate a
phone, this would normally be unlawful.

Although the press and media have an important role to fulfil in a

democracy, this does not mean that the press and other media have a
different and superior status in the Constitution. The right to a free press
and other media is designed to serve the interests that all citizens have
in the free flow of information and not the specific interests of the press
and other media. When the state infringes the right to a free press and
other media, therefore, it infringes the rights of all citizens and not
merely the rights of the press itself.46

15.1.3.3 Access to and broadcasting of court proceedings

Courts frequently consider matters of public importance. Courts also
often consider matters that are of interest to the public without being
matters of public importance. When a court considers a matter in which
there is a great deal of public interest, the press and other media
typically apply for permission to report on or even to broadcast the
court proceedings live on radio or television. In South Africa, these
requests have given rise to conflicts between the right to freedom of
expression and the principle of open justice, on the one hand, and the
right to a fair trial, one the other. They have also given rise to conflicts
between free speech and open justice, on the one hand, and the rights
of the child, the rights of parties to divorce proceedings and the security
of the state, on the other hand. Each of these different scenarios will be
discussed in turn below.

What is meant by the principle of open

justice?
The role that the principle of open justice plays in
South Africa was summed up by Deputy Chief Justice
Dikgang Moseneke in a speech he delivered at the
North-West University entitled The Media, Courts and
Technology: Remarks on the Media Coverage of the
Oscar Pistorius Trial and Open Justice.47 In this
speech, he said the following:
The principle of open justice is an incident of the values of
openness, accountability and the rule of law, as well as a core
part of the notion of a participatory democracy. All these are
foundational values entrenched in the Constitution. The preamble
of the Constitution contemplates “a democratic and open society
in which government is based on the will of the people”, and the
text requires that our democracy shall ensure accountability,
responsiveness and openness. The public is entitled to have
access to the courts and to obtain information pertaining to
them.48

In traditional African culture, the shade of a tree was the place

where disputes of society were mediated and resolved. It was on
this soil that the community would meet for a “lekgotla”. There
was room for all to have their say. Everybody was an active
participant of the process. This is how justice was done. It is the
age-old concept of justice under a tree.

Courts play a vital role to solve conflicts in all spheres of life. This
is what the Constitution promises us. The aesthetics of the court
building are a daily gentle reminder of this promise. The
overarching theme of the Constitutional Court building is justice
under a tree. For instance, the Constitutional Court logo depicts
people sheltering under a baobab tree. As former justice Sachs
described it, “[t]he tree protects the people, and they look after
the tree”. This is symbolic of the synergy between the law and the
people. It gives the court “an organic ambience” a space where
you feel welcome to see justice in motion.

There are innumerable quotes, many of which invoke powerful

imagery, about the ills suffered by a society that does not
promote open justice. It does, after all, form part of the bedrock
principles of a functioning democracy, and helps to quench the
people’s “fundamental, natural yearning to see justice done”. The
crispest and truest of these quotes is that “[d]emocracies die
behind closed doors”. The principle of open justice is one which
strikes at the very heart of what South Africa has been, and is
still, trying to achieve in the post-apartheid era. We acknowledge
a difficult truth: trust in government institutions in this country is
hard-earned. If we do not subject ourselves to the greatest of
scrutiny, how can we hope to persuade the public to recommence,
or perhaps commence for the first time, that which was lost for so
long: faith in the social contract. We can only move forward as a
country when we voluntarily, if not happily, sacrifice certain
liberties in return for the good that can be achieved in a
representative democracy: uniform laws that apply to all, a social
welfare system that protects the most vulnerably among us, and
institutional redress when our rights are compromised. Indeed,
transparency of the judicial process is so fundamental to
developing public trust that “all other checks are insufficient
[and] of small account. Recordation, appeal, [and] other
institutions operate as [mere] cloaks [rather] than checks; as
cloaks in reality, as checks only in appearance”. The arguments in
favour of open justice are discussed widely, but are perhaps best
summarised as:

First, it assist[s] in the search for truth and play[s] an important

role in informing and educating the public. Second, it enhance[s]
accountability and deter[s] misconduct. Third, it ha[s] a
therapeutic function, offering an assurance that justice has been
done [a sense of communal catharsis].
Of course, open justice is not a novel concept in South Africa,
miraculously discovered in our lifespan as a constitutional
democracy. The foundational nature of a public trial has been
recognised in our country since as far back as 1813. And globally,
the roots of the public trial have been “traced back beyond
reliable historical records”, with the notion being incorporated
into almost every international human rights instrument.

But what did happen recently, in 1994, was that time stopped,
and our country was divided. Not by people, though, but by time.
When the new constitution came into force, a new South Africa
was born. The old South Africa, tyrannical and unjust, was now
impotent in its reign, while the new South Africa was full of hope
and unconstrained potential. The Constitution of the new South
Africa has been applauded by Justice Ginsburg of the United
States Supreme Court as “a deliberate attempt to have a
fundamental instrument of government that embrace[s] human
rights [and ensures] an independent judiciary”. For open justice
alone, the Constitution guarantees the freedom of the press, the
freedom of the media, and the right of the public to receive and
discuss information and ideas. It provides for all criminal accused
the right of a fair and public trial. And for all others, a fair and
public hearing. Even the Constitutional Court itself is
architecturally designed to both ensure, and represent, open
justice. For example, the courtroom includes a dedicated media
box, windows on all sides, and artwork of clouds on the walls to
give one the impression of being outside. Further, the logo of the
Court is intended to symbolise justice under a tree. Consider this
in comparison to the past, the old South Africa, with rampant
practices of incommunicado detention, without any prospect of a
proper trial. The old Terrorism Act permitted a senior police officer
to decide that a person should be detained without trial for up to
sixty days, without any right to communicate with the outside
world. While the Act had the appearance of being “designed to
combat terrorism [it in fact] itself become an instrument of
terror”.

[…]

The principle of open justice is, after all, a core part of the notion
of participatory democracy, particularly one whose Constitution
begins with the very words “democracy and open society”. It is
not a principle that should be defined in haste. The public is
entitled to have access to courts, and to obtain information about
them. Besides the obvious space limitation of there not being
enough room in a courtroom to always fit everyone, and the
distance limitation of court proceedings taking place in all four
corners of our country, there is also the realistic point that not
 everyone wants to come to court to find out what is happening.
Instead, they rely on the media to tell them. And we do not want a
system in which the judicial system is “shrouded in mystique and
protected at all times from the prying eye of the camera or the
invasive ear of the microphone”. We want a system in which the
public trusts that the judiciary is acting according to the “time-
honoured standards of independence, integrity, impartiality and
fairness”. For that to happen, we must, as far as reasonably
practicable, create means for the media to access, observe and
report on the administration of justice. This has generally involved
the media having the ability to enter the courtroom, and to access
papers and written arguments.

15.1.3.4 Access to and broadcasting of criminal proceedings

Initially the courts were reluctant to grant permission to broadcast
criminal proceedings on the grounds that it would infringe the accused
person’s right to a fair trial, for example, by subjecting witnesses to
intimidation from others or from within themselves or by causing
witnesses to consciously or subconsciously change their testimony as a
result of what they have seen or heard in the media.
In South African Broadcasting Corporation v Downer NO and
Shaik,49 for example, the Supreme Court of Appeal (SCA) dismissed an
application by the SABC to broadcast live on radio and television Mr
Schabir Shaik’s appeal against his conviction on several counts of
corruption in the Durban High Court. These convictions were related to
payments Mr Shaik had made to the then Deputy President of the
Republic, Mr Jacob Zuma, over a period of five years and which were
aimed at influencing Mr Zuma to use his official position to benefit Mr
Shaik’s businesses.
In arriving at its decision, the SCA held that the SABC’s
constitutional right to freedom of expression and to impart information,
and the public’s right to receive such information, conflicted directly
with Mr Shaik’s constitutional right to a fair trial and, consequently, that
it had to strike a balance between the competing rights of the parties.
The manner in which it struck this balance would also determine how
the court should regulate its own processes.50
 When it comes to striking this balance, the SCA held further, an
accused person’s interest in a fair trial far outweighed the media’s
interest in freedom of expression. This is because an accused person
faced a loss of liberty if he or she was convicted, while the media simply
faced the loss of one source of information. It followed, therefore, that
‘live or recorded sound broadcasting should not be allowed unless the
court is satisfied that justice will not be inhibited’.51
After setting out this test, the SCA turned to apply it to the facts. In
this respect, it found that broadcasting Mr Shaik’s appeal live on radio
and television would inhibit justice for two reasons. First, it would put
‘stress’ on both counsel and the judges, inhibiting interaction that
would ‘whether by way of being the last straw or in combination with all
the other circumstances, create the material risk that justice will be
impaired’.52
Second, there was a risk that television and radio broadcasts might
prejudice the rights of both the state and Mr Zuma to a fair trial in his
case because extensive radio and television broadcasting might deter
witnesses from testifying in that trial due to the critical exposure to
which they might be subjected during the appeal.53 The unfettered
questioning of counsel might also create the perception in the public
mind that Mr Zuma’s innocence or guilt was being prejudged.54
The SCA’s decision was subsequently upheld by a majority of the
Constitutional Court on the ground that it could not interfere with the
manner in which the SCA exercised its discretion simply because it
disagreed with the SCA.55 Instead, it would only interfere with the
manner in which the SCA exercised its discretion if the SCA had abused
its discretion by failing to act judicially, or by applying the wrong
principles of law, or by misdirecting itself on the material facts,56 none
of which occurred in this case.57
Approximately seven years later, the cautious approach adopted in
the SABC case was abandoned in Multichoice (Proprietary) Limited and
Others v National Prosecuting Authority and Another, In Re; S v
Pistorius, In Re; Media 24 Limited and Others v Director of Public
Prosecutions North Gauteng and Others58 when, for the first time in
South Africa, a court granted the media permission to broadcast live on
radio and television an entire criminal trial.
 In this case, the applicants applied to the Pretoria High Court for
permission to broadcast live on radio and television the criminal trial of
Mr Oscar Pistorius. Mr Pistorius was charged with murdering his
partner, Ms Reeva Steenkamp, on Valentine’s Day at his home in
Pretoria. Given that he was an internationally renowned disabled
athlete who had represented South Africa at both the Paralympic and
the Olympic Games, the trial generated enormous public interest both
in South Africa and abroad.
In arriving at its decision, the Court accepted that the question
whether a criminal trial can be broadcast live on radio and television
gives rise to a conflict between the broadcaster’s right to freedom of
expression, on the one hand, and the accused’s right to a fair trial, on
the other hand. However, the Court held, this conflict cannot be
resolved by determining which right is more valuable so that it can be
declared the winner, while the less valuable is simply jettisoned.59
Instead, the conflicting rights must be reconciled by limiting the
exercise of one right to the extent that it is necessary to do so in order to
accommodate the exercise of the other (or in some cases, by limiting
the exercise of both rights) according to what is required by the
particular circumstances and within the constraints that are imposed by
the limitation clause. In other words, the point of departure is to ensure
that each right can be properly enjoyed without being unduly limited.60
Apart from reconciling the right to freedom of expression and the
right to a fair trial, the Court held further that it also had to take into
account the principle of open justice. In terms of this principle, the key
issue was not whether the media should be allowed to access and
broadcast court proceedings, but rather how the process of
broadcasting criminal proceedings can be managed to ensure that it
does not distort the character of the criminal proceedings and that the
public are well informed about how the courts function.61
An important consequence of this principle is that a court cannot
simply prohibit the media from broadcasting a criminal trial. This
would perpetuate the situation where only a small segment of the
community is able to see the proceedings for themselves, while the
majority has to rely on summarised versions written by journalists,
which may be inaccurate or biased.62 Instead, a court must subject the
broadcast to those restrictions that are necessary to ensure a fair trial. In
the case at hand, for example, the Court held that while the testimony of
Mr Pistorius himself and his witnesses could be broadcast on radio, the
could not be broadcast on television.63
The approach adopted in Pretorius was adopted a year later by the
SCA itself in Van Breda v Media 24 Limited and Others; National
Director of Public Prosecutions v Media 24 Limited and Others. In this
case, the appellant, Mr Henri Van Breda, was accused of murdering
both of his parents and his brother with an axe as well as attempting to
murder his younger sister. Shortly before the criminal trial was due to
begin in the Cape Town High Court, Media24 applied for permission to
broadcast it live on radio and television. After the Court granted the
respondent a strictly regulated permission to do so, Mr Van Breda and
the National Director of Public Prosecutions appealed to the Supreme
of Court of Appeal.
In arriving at its decision, the SCA referred to and accepted many of
the arguments that have been made in favour of broadcasting criminal
proceedings live on radio and television. Among these were: (i)
demystifying the judicial process; (ii) improving public debate,
discussion and criticisms of the judiciary; (iii) increasing the public’s
understanding of and respect for the judiciary; (iv) improving
journalistic standards, especially with respect to court reporting; and (v)
heightening public awareness of deep-seated social problems.64
Despite these arguments, the SCA held, it does not automatically
follow that criminal proceedings must be broadcast live in every
circumstance. Section 173 of the Constitution confers an inherent
discretion on the Constitutional Court, the SCA and the High Court to
regulate their own processes, taking into account the interests of justice.
This discretion gives them the power to limit the nature and scope of a
broadcast where it is necessary to ensure that a trial is fair.65
This means, the SCA held further, that a one-size-fits-all approach
cannot be adopted. Instead, each case must be decided on its own
facts.66 The Court stated in this respect that:
[t]here will be cases, one imagines, that rest exclusively on circumstantial
evidence. It may well be difficult in such a situation to justify excluding
cameras from the courtroom. There may also be cases that rest on the evidence
 of a single eyewitness. In those cases the risk of witness exposure or tailoring of
evidence would not arise. There too, it may well be difficult to justify excluding
cameras. Moreover, the fact that witness X might be severely intimidated by
having to testify on camera, does not justify prohibiting the broadcast of
witness Y’s testimony, who has not raised the same concern. Nor would it,
without more, justify prohibiting the audio broadcasts of witness X’s testimony.
Such an approach, does afford appropriate appreciation for the different types
of witnesses, who would testify in the course of criminal proceedings. What
warrant, can there be, it must be asked, for treating expert witnesses, lay
witnesses and professional witnesses (such as police officers) on the same
footing? I venture that it may be fanciful to suggest that an audio broadcast can
have the same distressing or embarrassing effects as an audio-visual
broadcast.67

In light of these points, the SCA then turned to consider whether the
approach it adopted in the SABC case, namely that ‘live or recorded
sound broadcasting should not be allowed unless the court is satisfied
that justice will not be inhibited’68 was still valid. The Court held that it
was not and, accordingly, that its judgment in SABC should be
overruled for the following reasons:
• First, at the time the SABC case was decided, live broadcasting of
court proceedings was virtually unknown in South Africa. Since then
the position had changed fundamentally and live broadcasts had
become the default position in the Constitutional Court, the SCA
and some divisions of the High Court.69
• Second, there had also been an important shift in the manner in
which South Africans, and especially younger South Africans, kept
up to date with news and current affairs. Instead of relying on
newspapers, magazines and other forms of print media, more and
more South Africans rely on television, social media and the internet
as their main source of information.70
• Third, following the example set by the International Military
Tribunal at Nuremberg in 1945, most international and regional
courts, including the European Court of Human Rights, the Inter-
American Court of Human Rights, the International Criminal
Tribunal for the former Yugoslavia and the International Criminal
Court, have opened their proceedings to cameras, not as an
exception, but as a general rule.71
Although all the arguments in favour of allowing cameras in the
courtroom are compelling, the SCA held further that it was also
important to note that allowing cameras in the courtroom was merely
the starting point. As a part of its inherent power to manage its own
process, a trial court was still entitled to direct that some or all of the
proceedings before it could not be broadcast at all or could be
broadcast only, for example, in audio form.72

The correct legal position, therefore, the SCA went on to conclude, is:
that there can be no objection in principle to the media recording and
broadcasting counsel’s address and all rulings and judgments (in respect of
both conviction and sentence) delivered in open court. When a witness objects
to coverage of his or her testimony, such witness should be required to assert
such objection before the trial judge, specifying the grounds therefor and the
effects he or she asserts such coverage would have upon his or her testimony.
This approach entails a witness-by-witness determination and recognises as
well that a distinction may have to be drawn between expert, professional
(such as police officers) and lay witnesses. Such an individualised enquiry is
more finely attuned to reconciling the competing rights at play than is a
blanket ban on the presence of cameras from the whole proceeding when only
one participant objects. Under this approach cameras are permitted to film or
televise all non-objecting witnesses. Spurious objections can also be dealt with
…73

If the judge determines that the witness has a valid objection to cameras,
alternatives to regular photographic or television coverage could be explored
that might assuage the witness’ fears. For example, television journalists are
often able to disguise the identity of a person being interviewed by means of
special lighting techniques and electronic voice alteration, or merely by
shielding the witness from the camera. In other instances, broadcast of
testimony of an objecting witness could be delayed until after the trial is over. If
such techniques were used in covering trials, the public would have more
complete access to the testimony via television, and yet the witness could
maintain some degree of privacy and security.74

Whenever an accused person in a criminal trial objects to the presence of

cameras in the courtroom, the objection should be carefully considered. If the
court determines that the accused’s objection to cameras is valid, that may
require that cameras be excluded. By framing the inquiry in these terms, courts
will be better able to strike a constitutionally appropriate balance between
policies favouring public access to legal proceedings and the accused’s right to
a fair trial. 75
15.1.3.5 Access to and reporting on proceedings concerning
children
Apart from reporting on or broadcasting criminal proceedings, the
media sometimes also want to report on or broadcast matters involving
children, especially children involved in crimes. These sorts of cases
give rise to a conflict between the right to freedom of expression and the
principle of open justice, on the one hand, and the right of the child, on
the other. This conflict was addressed by the Constitutional Court in
Centre for Child Law and Others v Media 24 Limited and Others.76
In this case, the applicants applied for an order declaring section
154(3) of the Criminal Procedure Act77 to be unconstitutional and
invalid on two grounds: first, that while it expressly protected the
anonymity of child accused and child witnesses in criminal
proceedings by prohibiting the publication of their identities, it did not
protect the anonymity of child victims of crime and, second, that it did
not protect the anonymity of child accused, child victims and child
witnesses once they turned 18 years of age and became adults. In other
words, it did not provide ongoing anonymity protection.
Although the Court unanimously found that the failure to protect
the anonymity of child victims of crime was unconstitutional and
invalid, it was divided on the question of ongoing anonymity
protection. While a majority found that the failure to provide ongoing
anonymity protection for child accused, child victims and child
witnesses was unconstitutional, a minority found that it was not.
In so far as the failure to protect the anonymity of child victims of
crime was concerned, the Court found that this failure infringed the
right to equal protection and benefit of the law guaranteed in section
9(1) of the Constitution because it did not serve a legitimate
governmental purpose and, therefore, was irrational.78 Apart from
infringing the right to equality, the Court also found that the failure to
protect child victims infringed the best interests of children guaranteed
in section 28(2) of the Constitution79 as well as their rights to dignity and
privacy, guaranteed in sections 10 and 15.80
After making these findings, the Court turned to consider whether
the failure to protect the anonymity of child victims of crime could be
justified in terms of the limitation clause. The Court found that it could
not because an irrational provision can never be reasonable or
justifiable in an open and democratic society.81 In addition, the Court
also found that even if the failure did have a legitimate governmental
purpose, namely to promote freedom of expression and open justice,
this purpose was outweighed by the rights of child victims.
Furthermore, protecting the anonymity of child victims would not
prevent the media from reporting fully and accurately on events and
thus represented a minor infringement of the right to freedom of the
press.82
In so far as the failure to provide ongoing anonymity protection was
concerned, a majority of the Court found that this failure infringed the
best interests of children as well as their rights to dignity and privacy
because the risk of being identified once they become adults can
undermine the long-term healing process of accused, victims and
witnesses and lead to re-traumatisation and hinder rehabilitation. It
thus harms them while they are still children.83 In addition, the fear of
being identified after turning 18 could place unfair pressure on a child
to finish the trial quickly and affect his or her ability to speak and
participate freely during the trial.84 This would undermine the integrity
of the criminal justice system.85
After making these findings, the majority of the Court turned to
consider whether the failure to provide ongoing anonymity protection
could be justified in terms of the limitation clause. Once again, the
Court found that it could not, largely for the same reasons, namely that
the right to freedom of expression and the principle of open justice were
outweighed by the rights of the child and that the ongoing anonymity of
child accused, child victims and child witnesses constituted a minor
infringement of the freedom of the press.86 In their limitation analysis,
the majority also emphasised the difference between the public interest
in open justice and what is merely interesting to the public. Simply
because the public might be curious about the identity of child accused,
child victims and child witnesses does not mean that the media are
entitled to satisfy this curiosity.87

15.1.3.6 Access to and reporting of divorce proceedings

Besides criminal proceedings, the media also often want to report on or
broadcast divorce and other family related proceedings. These sorts of
cases give rise to a conflict between the right to freedom of expression,
on the one hand, and the rights to dignity and privacy of the individuals
involved in what are often traumatic divorce proceedings as well as the
best interests of the child.
The extent to which the press and other media may access and
report on divorce and other family related proceedings was addressed
by the Constitutional Court in Johncom Media Investments Limited v M
and Others. 88 In this case; the Sunday Times newspaper, which was
owned by the applicant, wanted to publish a report about an action
instituted by a man, Mr D, against former wife, Ms M, and a child born
during their marriage, PD.
In this action, Mr D argued that Ms M had deliberately and falsely
misrepresented to him that PD was his biological son. He,
consequently, claimed damages from Ms M; the restoration of certain
benefits he had paid to Ms M as part of the divorce settlement; the
rescission of those parts of the divorce order that referred to PD as his
son; and an order declaring that he was not the biological father of PD.
Before it published the story, a reporter from the Sunday Times
approached Ms M and PD for a comment. Instead of commenting,
however, they successfully applied to the High Court for an interim
interdict prohibiting publication of the story. Their application was
based on the ground that the story would infringe section 12 of the
Divorce Act. 89 This section provided that no person could publish any
information that came to light during a divorce action except for the
names of the parties, the fact that they were getting divorced and the
judgment of the divorce court.
On the return day, the applicant opposed the confirmation of the
interim interdict and launched a counter-application in terms of which
it argued that section 12 of the Divorce Act was so broad that it
unjustifiably infringed the right to freedom of expression. The High
Court agreed with this argument and declared the section to be
unconstitutional and invalid. Its decision was then referred to the
Constitutional Court for confirmation in terms of section 172(1)(b) of
the Constitution. The Constitutional Court confirmed that section 12
was in fact unconstitutional and invalid.
In arriving at this decision, the Court began by finding that section
12 of the Divorce Act did not fall within any of the exceptions set out in
section 16(2) of the Constitution and, consequently, that the section
infringed on the freedom of the media. The key question that had to be
answered, therefore, was whether the infringement satisfied the
requirements of the limitation clause.90 The requirements of the
limitation clause were not satisfied for two reasons:
• First, section 12 was too broad. This is because it prohibited the
publication of any information that came to light during a divorce
action even if that information did not affect the dignity and privacy
of the divorcing parties and their children and, therefore, did not
require protection. It was also contrary to the principle of open
justice.91
• Second, section 12 did not achieve its purpose. This is because even
though it prohibited the publication of any information that came to
light during a divorce action, it did not prohibit the publication of
the names of the divorcing parties and their children. A much more
effective method of protecting the dignity and privacy of the
divorcing parties and their children was simply to prohibit the
publication of their identities.92

After finding that section 12 of the Divorce Act was unconstitutional and
invalid, the Court turned to consider what would be the most
appropriate remedy. In this respect, the Court held that apart from
declaring section 12 to be invalid, it would be appropriate to issue an
order prohibiting the publication of the identities of divorcing parties
and their children and any information that could reveal their
identities.93

15.1.3.7 Access to and reporting on proceedings involving state

security
Apart from the circumstances discussed above, the Constitutional
Court has affirmed the notion of open justice in the context of state
security as well. In Independent Newspapers (Pty) Ltd v Minister for
Intelligence Services (Freedom of Expression Institute as Amicus Curiae)
In re: Masetlha v President of the Republic of South Africa and Another,
the Court affirmed the constitutional imperative of dispensing justice in
the open.94 It stated further:
This systemic requirement of openness in our society flows from the very
founding values of our Constitution, which enjoin our society to establish
democratic government under the sway of constitutional supremacy and the
rule of law in order, amongst other things, to ensure transparency,
accountability and responsiveness in the way courts and all organs of state
function.

From the right to open justice flows the media’s right to gain access to, observe
and report on, the administration of justice and the right to have access to
papers and written arguments which are an integral part of court proceedings
subject to such limitations as may be warranted on a case-by-case basis in
order to ensure a fair trial.95

However, the Court went on to find that restrictions placed on public

access to court proceedings may be permissible in exceptional
circumstances 96 as the cluster of rights that guarantees open justice is
not absolute. These rights may be limited by a law of general application
provided the limitation is reasonable and justifiable:97
There may be instances where the interests of justice in a court hearing dictate
that oral evidence of a minor or of certain classes of rape survivors or
confidential material related to police crime investigation methods or to
national security be heard in camera. In each case, the court will have to weigh
the competing rights or interests carefully with the view to ensuring that the
limitation it places on open justice is properly tailored and proportionate to the
end it seeks to attain. In the end, the contours of our constitutional rights are
shaped by the justifiable limitation that the context presents and the law
permits.98

15.1.3.8 Prior restraints

Prior restraints refer to cases where a publisher is prohibited or
stopped from publishing information or where the law requires the
publisher to seek approval from a person or body before it is allowed to
publish information. The Constitutional Court considered the question
of when and to what extent Parliament could impose prior restraints on
the publication of material, especially by the press and other media, in
Print Media South Africa and Another v Minister of Home Affairs and
Another.99
In this case, the Court found that section 16(2)(a) of the Films and
Publications Act was unconstitutional and invalid on the grounds that it
infringed the right to freedom of expression. Section 16(2)(a) of the Act
provided that, except for the publisher of a registered newspaper, any
person who intended to ‘create, produce, publish or advertise’ a
publication ‘containing sexual conduct which violates or shows
disrespect for the right to human dignity of any person, degrades a
person, or constitutes incitement to cause harm’ had to submit that
publication to the Film and Publications Board for classification before
it was distributed. Depending on the way in which it was classified by
the Film and Publications Board, a publication containing the sexual
conduct referred to in section 16(2)(a) could be banned, distributed
subject to certain restrictions or freely distributed. In addition, the Act
also provided that a publisher who failed to submit a publication
containing the sexual conduct referred to in section 16(2)(a) to the Film
and Publications Board for classification before publishing it,
irrespective of how it would have been classified, committed a criminal
offence and could be sentenced to a fine or imprisonment of up to five
years or both.
In declaring this section invalid, the Court explained that section
16(2)(a) imposed a system of ‘administrative prior consent’ for the
publication of information on sexual conduct.100 The Films and
Publications Act was aimed at achieving important goals: to provide
consumers with advice, to protect children from exposure to harmful or
age-inappropriate material, and to ban child pornography. While
banning child pornography and protecting children from exposure to
harmful or age-inappropriate material were obviously important goals,
providing adults with more complete information about a publication’s
content was also important. This is because it enhanced a consumer’s
ability to make informed choices about what he or she consumed or
what he or she exposed others to through his or her consumption.101
 However, in this case, the prior constraint limited the right to
freedom of expression in a severe fashion. This is because the system of
‘administrative prior consent’ created by the Act transferred control
over the decision to publish material from the person in whom the right
to freedom of expression is vested to an administrative body.102 The
problem with this type of system is that administrative bodies are much
more likely to restrict publications when they have to classify them
upfront rather than when they have to take punitive or restrictive action
after publication. In addition, this type of system often leads to delays
which may prevent important information from reaching the public or
which may result in information being redundant by the time it is
published.103
After examining the importance of the purpose of the limitation and
the nature and extent of the limitation, the Court turned to balance all
the competing factors. In this respect, the Court held that the extent of
the limitation appeared to outweigh the importance of the purpose of
the limitation. This is because the system of ‘administrative prior
consent’ would inevitably delay or restrict the flow of information that
people were lawfully entitled to receive.104 This would undermine the
autonomy of the individual to formulate an opinion about information
received which would in turn undermine the moral agency of the
individual. The limitation would only satisfy the requirements of the
limitation clause, therefore, if there was no other less restrictive means
of achieving the goals of the Act.105 Unfortunately for the Minister and
the Film and Publications Board, the Court went on to conclude that
there were other less restrictive means of achieving the goals of the Act,
such as applying for an interdict or voluntarily submitting the
publication for classification.106

Applying for an interdict to prevent the

publication of a story
Before they publish a story which is critical of a
person, newspapers usually approach the affected
person and ask him or her to comment on the story.
After being approached for such a comment, some
affected people have, in the past, successfully applied
for an interim interdict prohibiting the publication of
the story. These sorts of interdicts are a classic form of
prior restraint. In light of the judgment of the
Constitutional Court in Print Media South Africa,
however, it will arguably be difficult for an affected
person to convince a court to grant such an interdict
today.
Despite the fact that it will be difficult to convince
a court to grant such an interdict today, the Press Code
of Ethics and Conduct for South African Print and
Online Media seeks to protect newspapers from this
sort of prior restraint by imposing an obligation on
newspapers to ask an affected person for comment
prior to the publication of a story that is critical of him
or her, and by restricting the circumstances in which a
newspaper does not have to comply with this
obligation. Section 1.8 of the Press Code thus reads as
follows:
The media shall seek, if practicable, the views of the subject of
critical reportage in advance of publication, except when they
might be prevented from reporting, or evidence destroyed, or
sources intimidated. Such a subject should be afforded
reasonable time to respond; if unable to obtain comment, this
shall be stated.

This provision thus aims to protect newspapers from

attempts to muzzle them while protecting the rights of
people on whom the press reports in a critical fashion.
The Press Code itself was adopted by the South
African Press Council to guide journalists in their daily
practice of gathering and distributing news and opinion
and to guide the work of the Ombud. The Press Council
itself is a voluntary body to which almost all
newspapers and magazines in South Africa belong and
 whose members subject themselves to a form of
independent self-regulation through the Press Ombud.
The Ombud aims to provide impartial, expeditious
and cost-effective adjudication to settle disputes
between newspapers and magazines, on the one hand,
and members of the public, on the other, over the
editorial content of publications. An appeal from a
ruling of the Ombud lies with the Appeal Panel of the
Press Council. This self-regulatory system has been
criticised by the ANC, which has argued that it should
be replaced by a statutory Media Tribunal. Those that
oppose this, point out that a state-appointed Medial
Tribunal will stifle the freedom of the press and other
media.
Which approach do you prefer? A state-appointed
Media Tribunal or the self-regulation system we have at
present.

15.1.3.9 The regulation of broadcasting

As broadcasting is a particularly powerful form of expression and as
there are limited frequencies available in some areas and in respect of
some forms of broadcasting, control is necessary to ensure that diverse
views are broadcast. Section 192 of the Constitution thus provides that
‘[n]ational legislation must establish an independent authority to
regulate broadcasting in the public interest, and to ensure fairness and
a diversity of views broadly representing South African society’. The
independent authority referred to in section 192 is the Independent
Communications Authority of South Africa (ICASA).107
In addition to the regulatory function of ICASA, the Broadcasting
Complaints Commission of South Africa (BCCSA) is tasked with
ensuring that broadcasting is in accordance with the Broadcasting
Code. The BCCSA can be called on to investigate broadcasts that are not
in accordance with the provisions of the Code.108
15.1.4 Hate speech

15.1.4.1 Introduction
The Constitution is founded on the values of dignity, equal worth and
freedom, values that are given effect to in the text of the Constitution. It
is therefore not surprising that section 16 of the Constitution makes it
clear that certain forms of expression do not deserve constitutional
protection since they have the potential to impugn the dignity of others
and cause harm.109 As we pointed out above, section 16(2) of the
Constitution deals with expression that is specifically excluded from the
protection of the right to freedom of expression in section 16(1). While
section 16(2)(a) and (b) are concerned with ‘propaganda for war’ and
‘incitement of imminent violence’, section 16(2)(c) is concerned with
what is commonly referred to as ‘hate speech’. Out of these three forms
of excluded expression, hate speech has received the most attention
from the courts and commentators. For the purposes of this book,
therefore, we are going to focus on this form of excluded expression
only.
Hate speech at a social level is said to be prohibited for one or more
of the following four reasons:
1. To prevent disruption to public order and social peace stemming
from retaliation by victims.
2. To prevent psychological harm to targeted groups that would
effectively impair their ability to positively participate in the
community and contribute to society.
3. To prevent both visible exclusion of minority groups that would
deny them equal opportunities and benefits of … society and
invisibly exclude their acceptance as equals.
4. To prevent social conflagration and political disintegration.110

The Equality Court formulated the reasons for the prohibition on hate
speech slightly differently in South African Human Rights Commission v
Qwelane and Another,111 when it held as follows:
 The power of words is limitless. Although words can be used to inspire people
and promote good, they also can be used to destroy. In the form of hate speech,
words can be ‘used as weapons to ambush, terrorize, wound, humiliate and
degrade’ … On an individual basis, hate speech inflicts ‘emotional pain and
distress, intimidation, and fear’ on its targets …112

This passage illustrates that when asking whether a specific expression

should be prohibited as hate speech, the question will always be how
much harm and what type of harm the expression may cause. The more
serious the potential harm, the more likely that the expression will be
prohibited.

15.1.4.2 The scope and extent of hate speech

The exact scope and content of hate speech is contested, but the courts
have confirmed that it is impossible to judge whether a specific
statement constitutes hate speech without referring to the broader
context within which the statement was made. As we noted above,
section 16(2)(c) excludes certain forms of hate speech from
constitutional protection, namely advocacy of hatred based on race,
ethnicity, gender and religion that amounts to the incitement to cause
harm, from the protection of the right to freedom of expression. The list
of grounds is a closed list which means that other forms of hate speech
such as homophobic and xenophobic speech are not included under
section 16(2) and do not automatically fall outside the protection of the
freedom of expression guarantee contained in section 16(1). This means
that the regulation of hate speech that goes beyond what is excluded by
section 16(2)(c) will limit freedom of expression guaranteed in section
16(1). This will either be because it prohibits speech targeting groups
not listed in section 16(2)(c), or because the harm being targeted is
broader than that set out in section 16(2)(c). The question in such cases
will be whether the limitation on the right to freedom of speech is
justifiable in terms of the limitation clause. As we shall see below, this is
exactly the question that arises when considering the constitutionality
of the provision in the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA)113 that prohibits hate speech as this
provision extends the prohibition of hate speech beyond what is
provided for in section 16(2)(c).
It is important to remember that section 16(2) is definitional in that
it merely defines certain forms of speech to which the protection of the
right to freedom of expression does not extend.114 The Constitution itself
does not prohibit any speech. Given that these forms of speech are not
protected by the Constitution, legislation may be enacted that prohibits
them. A general prohibition on hate speech was enacted when
Parliament passed section 10 of the PEPUDA. This section provides
that:
Subject to the proviso in section 12, no person may publish, propagate,
advocate or communicate words based on one or more of the prohibited
grounds, against any person, that could reasonably be construed to
demonstrate a clear intention to:
(a) be hurtful;
(b) be harmful or incite harm;
(c) promote or propagate hatred.

South African courts have had difficulty with the interpretation and
application of section 10 due to the way in which the provision is
formulated. The SCA has complained that section 10 is ‘exceptionally
difficult to understand’ and endorsed the view that ‘it is doubtful that
the average person “will be able to use the Act to guide his or her
conduct clearly”’.115 The Court nevertheless concluded the prohibition
on hate speech in the PEPUDA is more far-reaching than the description
of hate speech in section 16(2)(c) of the Constitution.116 This is because
it is not based simply on the grounds listed in section 16(2)(c), namely
race, ethnicity, gender and religion. Instead, it is based on all of the
prohibited grounds listed in the PEPUDA. These grounds include race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth, or any other similar ground such as HIV status. It is
also important to note that speech will not constitute hate speech
merely because it is offensive or because it offends a certain section of
the population. The threshold test is that the speech must be aimed at
one of the defined groups. Offending speech targeting all lawyers or all
journalists would therefore never constitute hate speech because it
does not target a person on the basis of one of the listed or associated
grounds.
Once it is determined that the speech targets a person based on one
of the listed or similar grounds, the question will be asked whether it
could reasonably be construed to demonstrate a clear intention to be
hurtful, harmful or to propagate hatred. An Equality Court need not find
that the speaker actually had the intention to be hurtful, to incite harm
or to propagate hate. The question is whether the words of the speaker
could reasonably be construed in this way. The subjective question (the
intention of the speaker) must be determined by using an objective test
(what a reasonable person would have thought).117 To decide this
question, we would need to look at who the speaker is, in what context
the words were uttered and, given this context, how a reasonable
person would have interpreted the words. We assume that a reasonable
person is someone who is imbued with the values of the Constitution
and who understands the importance of freedom of speech and robust
debate in a democracy. He or she is not hypersensitive and will not
assume that the speaker had the intention to be hurtful or to incite
harm merely because the words may have offended the person
targeted. It will not be sufficient to show that members of the targeted
group were hurt by the speech or believed that the speech incited harm
against them. What is required is to determine whether a reasonable
person would have believed that the speaker had the intention to hurt
the targeted group or to incite harm against that group. As summarised
by the SCA in Qwelane v South African Human Rights Commission and
Another,118 one need not ask whether:
a reasonable person would interpret the conduct in such a way, only that it is
possible that he might construe it in this way … The result is to depart
significantly from the objective constitutional test and replace it with the
subjective opinion of a reasonable person hearing the words. This is an
extensive infringement on the right of freedom of expression.119

Although section 10 of the PEPUDA prohibits hate speech (i.e. speech

based on a prohibited ground), there is an exception to this prohibition.
This exception is set out in the proviso to section 12 of the PEPUDA
which reads as follows:
Provided that bona fide engagement in artistic creativity, academic and
scientific inquiry, fair and accurate reporting in the public interest or
publication of any information, advertisement or notice in accordance with
section 16 of the Constitution, is not precluded by this section.

The proviso, by its nature and content is clearly an exclusionary

enactment. It excludes from the limitation of freedom of expression the
engagement in or promotion of any of the stipulated activities.120 It
follows, therefore, that if the speech falls within the proviso, it is
protected and cannot simultaneously be deemed to be hate speech.
One of the issues that has divided legal opinion is whether the
grounds listed in section 10(1)(a), (b) and (c) should be read
disjunctively or conjunctively. If the words are read disjunctively, the
prohibition on hate speech becomes more extensive and far-reaching
as any speech that can reasonably be construed as having the intention
to be either hurtful; or harmful or inciting harm; or promoting or
propagating hatred would amount to hate speech if targeting an
identified group. If read conjunctively, it would narrow the scope of the
hate speech prohibition because one would have to show that the
speech could reasonably be construed as having the intention to be
hurtful and harmful or inciting harm; and promoting or propagating
hatred. Some High Courts have ruled that section 10(1) should be read
conjunctively. One example is the case of Khumalo,121 where the
Joahnnesburg High Court embraced the conjunctive reading, arguing
that this is necessary because section 10 must be read consistently with
section 16 of the Constitution. According to the Court, in order to
ensure that section 10 is constitutionally compliant, it was necessary to
read the various subsections cumulatively or conjunctively.122 However,
in 2019, the SCA rejected this approach in Qwelane v South African
Human Rights Commission and Another123 and endorsed the disjunctive
approach instead. The SCA held that the disjunctive reading flows from
the fact that the legislature clearly had the intention to cast the
prohibition of hate speech far and wide. Moreover:
 Each of the three subsections appear after the long dash, following on the
introductory words and each of the first two subsections ends with a
semicolon. The subsections are not connected with the word ‘and’, which one
would have expected, if it was intended for the sections to be construed
conjunctively … The formulation of the subsections as alternatives decouples
the constitutional requirements of advocating hatred and incitement to cause
harm, so that one or neither of these may lead to a finding of hate speech. That
is also an extensive infringement of the right.124

At the time of writing the Qwelane judgment was being appealed to the
Constitutional Court, but remains binding law. The SCA’s endorsement
of the disjunctive reading of section 10(1) in this case, confirms the
broad scope of the hate speech provision. But it is exactly because of the
wide reach of the provision when interpreted disjunctively, that led the
SCA in Qwelane to declare parts of section 10(1) unconstitutional. The
SCA pointed out that, read disjunctively, all that would be needed to be
guilty of hate speech was for a complainant to show that the disputed
words could reasonably be construed as having the intention to be
hurtful on the grounds such as race, sex, sexual orientation, religion and
the like. This, held the SCA, was problematic because the term ‘hurtful’
was both vague and broad. Hurtful words would include any words that
attacked another person’s feelings or subjective emotions.125
The SCA then proceeded to consider whether section 10(1) of the
PEPUDA infringed on the guarantee of freedom of expression
contained in section 16(1) of the Constitution. As section 16(1)
guarantees all forms of expression not explicitly excluded from
protection by section 16(2), any regulation of hate speech that went
beyond the exclusions contained in section 16(2) would impose a limit
on freedom of expression. In the words of the SCA: ‘Where the State
extends the scope of regulation beyond expression envisaged in s 16(2),
it encroaches on the terrain of protected expression and can do so only
if such regulation meets the justification criteria in s 36(1) of the
Constitution.’126 The question was whether the legislature had extended
the scope of section 10(1) of the PEPUDA beyond expression envisaged
by section 16(2)(c) of the Constitution. The latter section states that the
right in section 16(1) ‘does not extend to advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm’. The SCA held that section 10(1) regulated
expression far broader than that described in section 16(2)(c) of the
Constitution. This was so, first, because section 10 regulated speech
based on grounds not listed in section 16(2)(c). While the latter
provision only excludes hate speech based on ‘race, ethnicity, gender or
religion’ from constitutional protection, section 10(1) of the PEPUDA
prohibits hate speech on many other grounds as well – including on the
ground of sexual orientation. Second, section 10(1) was far too broad
and regulated speech that was protected, specifically because it
extended hate speech to types of speech that were merely ‘hurtful’. The
SCA noted that the PEPUDA did not define what types of hurt would be
sufficient to warrant a hate speech finding and that the provision was
therefore far too vague. According to the SCA:
daily human interaction produces a multitude of instances where hurtful
words are uttered and thus, to prohibit words that have that effect, is going too
far. So, too, a host of jokes might be hurtful to those who bear the brunt of
them. Are we to entertain complaints that extend to jokes that are not within
the limitations of s 16(2)(c) of the Constitution?127

As a result, the SCA held that section 10(1) of the PEPUDA went much
further than the exclusion in section 16(2)(c) of the Constitution and
therefore constituted a limitation on the right to freedom of expression
contained in section 16(1) of the Constitution. The SCA further held that
this limitation was not justifiable in terms of the limitation clause.128 The
SCA suggested that what was needed was a provision that tracked far
more closely to the wording of section 16(2)(c) of the Constitution. The
Court gave Parliament 18 months to correct the defect in section 10(1),
but crafted an interim order, which put in place a redrafted version of
section 10(1), which reads as follows:
No person may advocate hatred that is based on race, ethnicity, gender,
religion or sexual orientation and that constitutes incitement to cause harm.

The Constitutional Court must now consider whether to confirm the

judgment of the SCA in Qwelane. The declaration of invalidity will only
become effective if it is confirmed by that Court. But if the judgment (as
well as the remedy) is confirmed by the Constitutional Court, the hate
speech prohibition will contain a far stricter test than the one originally
provided in section 10(1) of the PEPUDA. To succeed one will have to
show that the speech both advocated hatred, and incited harm against
somebody because of their race, religion, ethnicity, gender or sexual
orientation. Although the SCA test is strict, it is not as strict as it may
appear. This is because the SCA explicitly states that the harm being
incited ‘need not necessarily be physical harm, but can be related to
psychological impact’ as well.129

Displaying the apartheid flag as hate speech

The old apartheid flag is widely regarded as a symbol
of white supremacy, and when individuals display the
flag reasonable people will interpret this as a
demonstration of support for apartheid and for the
apartheid regime. Any display of the flag is therefore
highly controversial and politically inflammatory. The
question is whether a display of the flag also
constitutes hate speech in contravention of section
10(1) of PEPUDA. The Equality Court was asked to
answer this question in the case of Nelson Mandela
Foundation Trust and Another v Afriforum NPC and
Others130 after demonstrators at nationwide public
demonstrations against farm murders and violent
attacks against farmers, waved the apartheid flag. In
considering this matter, the Equality Court endorsed
the view that the Apartheid Flag ‘was a vivid symbol of
white supremacy and black disenfranchisement and
suppression’.131 Given the fact that some South
Africans viewed the apartheid flag in a more benign
light, the Court decided to test whether the display of
the flag constituted hate speech by accepting the
dominant view of what the flag represented and
concluded:
The Old Flag is a symbol of “that part of the past which is
disgracefully racist, authoritarian, insular, and repressive”. The
dominant meaning of displaying the Old Flag (outside the context
of genuine journalistic, artistic or academic endeavour) is an
endorsement of precisely “that part of the past”… [The] dominant
meaning [of the Old Flag] is this: that the gratuitous display of
the Old Flag visually communicates a message of the belief in or
support of racism, white supremacy and the subjugation of the
black population. In short, the Old Flag is, according to the
dominant meaning, representative of apartheid, which has been
declared a crime against humanity.132

Having established the meaning of the apartheid flag,

the Court had to decide whether displaying a flag
constituted ‘words’ which could be regulated as hate
speech. This is because section 10(1) only prohibits
any person from publishing, propagating, advocating or
communicating ‘words’, and not of other mechanisms
of communication. The Court concluded that section
10(1) ‘should be interpreted in a manner that prohibits
all expressions of ideas, verbal and otherwise
(including the displaying of a flag), that amount to
hate speech’.133 Proceeding from this, the Court also
concluded that a display of the apartheid flag
amounted to hate speech because a reasonable
person would conclude that the intention of displaying
the flag was to be hurtful or harmful or incite harm. The
Court thus concluded that:
[W]hat then can be a reasonable clear intent attributable to a
gratuitous display other than a clear intention to hurt, harm and
incite hatred and the most negative feelings against ‘most South
Africans’? And indeed, can there be any noble intention when to
the knowledge of those who display it gratuitously, most South
Africans in whose face it is so displayed not only recoil but also
frown at such display? Could it be anything else other than to
provoke and hurt, harm and promote and propagate hatred by
stimulating those very negative feelings and at the same time
damaging (harming) our feeling of oneness as South Africans?134

The judgment in Nelson Mandela Foundation Trust and

Another v Afriforum NPC and Others was handed down
 before the SCA declared parts of section 10(1) invalid.
If the Court had applied the version of section 10(1)
as rewritten by the SCA in Qwelane it would have found
it more difficult to declare the display of the apartheid
flag to be hate speech as the rewritten definition is
much narrower than the original. Recall that the SCA in
Qwelane rewrote the hate speech provision to state
that: ‘No person may advocate hatred that is based on
race, ethnicity, gender, religion or sexual orientation
and that constitutes incitement to cause harm.’135
Could one still make an argument that, on this
rewritten version of what constitutes hate speech, the
display of the apartheid flag amounts to hate speech?
If your answer is yes, what would such an argument
look like?

15.2 The rights to freedom of assembly, demonstration,

picket and petition

15.2.1 Introduction
One of the most powerful ways in which individuals can express their
views on political and social issues is by coming together and protesting
peacefully. The freedom to assemble, demonstrate, picket and petition,
therefore, forms an integral part of the democratic rights of citizens in a
democracy. When a large crowd of people assemble in the street to
express their views on issues of the day, this can be viewed as a form of
participatory democracy.
In the apartheid era, rallies and demonstrations protesting against
the policies of the apartheid regime or popularising the ideas of anti-
apartheid organisations, such as the African National Congress (ANC),
the Azanian People’s Organisation (AZAPO), the Pan Africanist
Congress (PAC) or the United Democratic Front (UDF), were often
banned by the government. In one of the most famous incidents,
peaceful protesters in Cape Town, bearing placards proclaiming ‘the
people shall govern’, were sprayed with purple dye by the police. A
spirited activist seized the initiative and grabbed the nozzle from the
police. He then proceeded to paint the surrounding area purple. An
inspired graffitist subsequently wrote on a wall ‘The purple shall
govern!’136
In post-apartheid South Africa, the right to assemble and
demonstrate cannot legally be curtailed in the same manner. This is
because section 17 of the Constitution guarantees the right to freedom
of assembly, demonstration, picket and petition. This section provides
simply that ‘[e]veryone has the right, peacefully and unarmed, to
assemble, to demonstrate, to picket and to present petitions’.
Democracy entails more than the right to vote in regular free and
fair elections. As we have seen in the first part of this book, democracy
also requires citizens actively to participate in public affairs. For this
reason, the right to freedom of assembly plays an important role in a
democratic society. Assemblies, demonstrations, pickets and petitions
allow groups, whose influence on political parties or the political
process would otherwise be minimal, to raise issues that are important
to them, to draw attention to these issues and to engage with their
fellow citizens and representatives about these issues.
Citizens also use such events to enforce their rights outside the
formal legal process by placing pressure on the legislature and the
executive not to infringe on the rights of individuals. Such events also
help civil society groups build support for their causes and mobilise
voters in order to ensure more responsive and accountable government
from those who were elected to serve the people. Often, such activities
precede or go hand-in-hand with court action.137

Using political mobilisation with litigation to

achieve human rights
Berger and Kapczynski discuss the manner in which
the Treatment Action Campaign (TAC) used both social
mobilisation and litigation in its struggle to ensure
access by all HIV-positive South Africans to life-saving
antiretroviral drugs. They argue that human rights are
not always best won or defended in courtrooms, but
often require sustained political mobilisation. This
political mobilisation requires the freedom to assemble
and to demonstrate. Without the right to freedom of
assembly and to demonstrate, it would be difficult to
mobilise politically or to ensure that battles won
through litigation are translated into real changes in
the lives of people.
In their discussion of the battle to ensure that all
HIV-positive pregnant women have free access to
medication that diminishes the risk of transmitting HIV
to their newborn babies, these authors point out that
the TAC case was brought only after four years of
sustained lobbying and organising efforts aimed at
forcing the state to provide medication to prevent the
transmission of HIV from mother to infant. They also
point out that the ‘carefully orchestrated advocacy work
and mass demonstrations’ during these four years
caused dramatic change in the government’s policy
even during the litigation. However, while the advocacy
was successful and led to a change in government
policy, the policy was unevenly implemented and not
all women who needed antiretroviral treatment actually
received it. At the time they wrote their article, only
about 30% of women in South Africa who needed
antiretroviral treatment to prevent the transmission of
HIV to their children were receiving it.
Berger and Kapczynski argue that one cannot
understand this issue if you focus solely on the
judgment handed down by the Constitutional Court.
Instead, they argue that one can only understand the
case by focusing on the TAC and the movement that
 formed around it. ‘It is’, they write, ‘about the power
that an organized movement can have if it makes
strategic use of constitutionally entrenched and
justiciable human rights, lays the groundwork
necessary to give those abstract guarantees meaning,
and energetically builds broad public support for its
cause.’ This means that the Constitutional Court
judgment alone would not have been sufficient to
effect a radical change the lives of HIV-positive
pregnant women in South Africa. However, the authors
also point out that despite the successes of the TAC
movement, it also had its limitations. This is because it
did not have the power fundamentally to change the
way the state operated and to fix the operational
weaknesses of the state. They conclude: ‘In the end,
then, the story of the TAC case is less a story about the
power and limits of courts than it is a story about the
power and limits of the Treatment Action Campaign.’ 138

The Constitutional Court highlighted the goals of the right to freedom of

assembly in South African Transport and Allied Workers Union and
Another v Garvas and Others (SATAWU) where it stated that:
The right to freedom of assembly is central to our constitutional democracy. It
exists primarily to give a voice to the powerless. This includes groups that do
not have political or economic power, and other vulnerable persons. It
provides an outlet for their frustrations. This right will, in many cases, be the
only mechanism available to them to express their legitimate concerns.
Indeed, it is one of the principal means by which ordinary people can
meaningfully contribute to the constitutional objective of advancing human
rights and freedoms. This is only too evident from the brutal denial of this right
and all the consequences flowing therefrom under apartheid. In assessing the
nature and importance of the right, we cannot therefore ignore its foundational
relevance to the exercise and achievement of all other rights.139

Apart from promoting participation in political processes, the right to

freedom of assembly, demonstration, picket and petition also fulfils a
number of other goals. Perhaps the most important of these is the
development of each individual’s unique personality. This is because
our personalities do not develop in isolation. Instead, they develop in
the context of groups. Assemblies for cultural, educational, recreational,
religious and sporting purposes, therefore, may be as important as
assemblies for political purposes.

To what sort of assemblies does the right to

freedom of assembly refer?
Although the right to freedom of assembly exists
primarily to give voice to the powerless, section 17
itself does not expressly restrict the scope and ambit
of this right to assemblies that are aimed only at
promoting political participation. It may, therefore, also
include assemblies that are aimed at promoting
cultural, economic and social activities such as
educational, recreational, religious and sports
gatherings.
Woolman, however, argues that the scope and
ambit of section 17 may plausibly be restricted to
those assemblies that have some connection to the
political process. This is because if the right is defined
too widely, it may weaken our commitment to assembly
as a form of political participation.140 The problem with
this argument is that it can be very difficult to
determine whether a specific protest has some
connection to the political process.
People may wish to assemble to protest against
the Film and Publications Board’s banning of a movie
that they believe contains child pornography. This may
at first not appear to be linked to the political process.
However, if politics is defined broadly, then questions
about whether citizens should be allowed to see works
of artistic merit that depict uncomfortable realities may
 well form part of the political process. It, therefore, is
unclear how we would be able to draw this distinction.

15.2.2 Scope and ambit of the right to assembly

As the words of section 17 indicate, the right to assembly applies only to
those assemblies that are peaceful and unarmed. Assemblies that are
not peaceful or that are armed are thus excluded from the scope and
ambit of section 17. The requirement that a protected assembly must be
peaceful and unarmed thus serves as an internal modifier limiting the
scope of the right itself. The right to freedom of assembly is viewed as a
central right in South Africa’s constitutional democracy. According to
the Constitutional Court, it ‘exists primarily to give a voice to the
powerless’, including ‘groups that do not have political or economic
power, and other vulnerable persons’. Protest, said, the Court, also
provides an outlet for the frustrations of marginalised and vulnerable
groups.
This right will, in many cases, be the only mechanism available to them to
express their legitimate concerns. Indeed, it is one of the principal means by
which ordinary people can meaningfully contribute to the constitutional
objective of advancing human rights and freedoms. This is only too evident
from the brutal denial of this right and all the consequences flowing therefrom
under apartheid.141

Apart from promoting participation in political processes, the right to

demonstrate and protest also develops each individual’s unique
personality. This is because our personalities do not develop in
isolation. Instead, they develop in the context of groups. Assemblies for
cultural, educational, religious, sport and recreational purposes,
therefore, may be as important as assemblies for political purposes.142
Given section 17’s importance, the Constitutional Court has said that
this right should be interpreted expansively.143
It would need some particularly compelling context to interpret this provision
as actually meaning less than its wording promises. There is, however, nothing,
in our own history or internationally, that justifies taking away that promise. …
 This means that it is appropriate to proceed on the basis that section 17 of the
Constitution means what it generously says.144

A further reason why South African courts take an expansive view of the
right to freedom of assembly is that it forms part of a web of mutually
supporting rights which are closely linked to the proper functioning of
the democracy. In this regard, the Constitutional Court noted in South
African National Defence Union v Minister of Defence and Another145
that there was an interrelationship between the various freedom rights:
[Freedom of speech] is closely related to freedom of religion, belief and
opinion (s 15), the right to dignity (s 10), as well as the right to freedom of
association (s 18), the right to vote and to stand for public office (s 19) and the
right to assembly (s 17). These rights taken together protect the rights of
individuals not only individually to form and express opinions, of whatever
nature, but to establish associations and groups of like-minded people to foster
and propagate such opinions.146

This link between freedom of expression, freedom of association, the

right to demonstrate and protest and the proper exercise of democratic
rights has often been made by the Constitutional Court,147 which has
noted that the rights are interconnected and complementary. In
summary, because of South Africa’s apartheid past (when protests and
demonstrations were often banned and violently broken up by the
apartheid regime) and because of the close link between the right to
demonstrate and protest and other freedom rights, the courts prefer an
expansive interpretation of the right. The courts are also reluctant to
place onerous limitations on this right. This is an important insight that
will be kept in mind when engaging with the question of how to balance
the need to protect the right to demonstrate and protest against the
need to protect other rights and interests.

Peaceful assemblies
Like section 17 of the Constitution, Article 8(1) of the
German Constitution provides that ‘all Germans’ …
‘have the right to assemble peacefully and unarmed
without prior notification or permission’.
In the Brokdorf Demonstration case,148 a number
of non-governmental organisations announced that
they were planning to hold a large demonstration
against plans to build a nuclear power plant in
Brokdorf. Following this announcement, the relevant
authorities banned any demonstrations against the
nuclear power plant in an area covering 210 km2
around the site. The relevant authorities based their
decision on the grounds that they believed that 50
000 people would attend the demonstration and that
some of the demonstrators intended to engage in acts
of violence.
In dealing with this case, the Federal Constitutional
Court discussed the scope and ambit of the right to
assemble and, in particular, the requirements that the
right applies only to those assemblies that are
peaceful. The Court held that an assembly will be
classified as non-peaceful only if acts of physical
violence against persons or property are committed or
threatened.149 In addition, the Court also held that
where the organisers and participants in a
demonstration do not plan to engage in acts of
physical violence, that demonstration may not be
prohibited or broken up if a small minority of
demonstrators or counter-demonstrators plan to
engage in acts of violence. In these sorts of cases, the
Court went on to hold, the authorities must act against
the violent minority and not against the demonstration
as a whole. The demonstration as a whole remains
protected by Article 8.150
15.2.3 Distinguishing between assemblies, demonstrations,
pickets and petitions

15.2.3.1 Assemblies and demonstrations

The Constitution does not define the word ‘assembly’. It appears,
however, to apply to those situations where people intend to meet
together, either in public or in private, and remain together for some or
other collective purpose or shared objective. The fact that the
participants must intend to meet together distinguishes a protected
assembly from a coincidental gathering of people, for example at the
site of a road accident. The Constitution does not protect this sort of
gathering.151
The Constitution also does not prescribe the purposes of a protected
assembly. It may, therefore, be for a political purpose or for an
economic, social or cultural purpose. In addition, Rautenbach and
Malherbe suggest that it is not limited to the communication of ideas or
the discussion of matters. This is because the right to assemble is not
simply a part of the right to freedom of expression. The right also applies
to assemblies where no opinions are formed or expressed, such as a
concert or soccer match.152
Demonstrations and pickets are manifestations of assemblies and
are usually aimed at expressing support for a particular point of view in
public. The Regulation of Gatherings Act (Gatherings Act)153
distinguishes between demonstrations and gatherings. It defines a
demonstration as ‘any demonstration by one or more persons, but not
more than 15 persons, for or against any person, cause, action or failure
to take action’.154 It defines a gathering as ‘any assembly, concourse or
procession of more than 15 persons in or on any public road as defined
in the Road Traffic Act …, or any other public place or premises wholly
or partly open to the air …’.155 The Gatherings Act thus distinguishes
demonstrations from gatherings on the basis of their size.
The reason for distinguishing between demonstrations and
gatherings is that demonstrations, given their small size, are not
perceived to be a threat to public order while gatherings are. The
organisers of a demonstration are thus not required to provide prior
notification of the intent to demonstrate, while the organisers of a
gathering are.156
In light of the fact that size is a somewhat arbitrary basis on which to
define the statutory concept of a demonstration, it is unlikely that this
criterion will be used to define the constitutional concept of a
demonstration.

15.2.3.2 Pickets
Like the word ‘assembly’, the Constitution does not define the word
‘picket’. It appears, however, to apply to those situations where people
come together to carry placards in a public place at or near a business
premise.157
Picketing is a common feature in labour disputes. The Labour
Relations Act (LRA)158 protects the right of trade unions and their
members to picket. Section 69(1) of the LRA thus provides that ‘[a]
registered trade union may authorise a picket by its members and
supporters for the purposes of peacefully demonstrating (a) in support
of any protected strike; or (b) in opposition to any lock-out’.
Section 69(2) of the LRA goes on to provide that ‘[d]espite any law
regulating the right of assembly, a picket authorised in terms of
subsection (1), may be held (a) in any place to which the public has
access but outside the premises of an employer; or (b) with the
permission of the employer, inside the employer’s premises’. The
permission referred to in this section may not be unreasonably
withheld.159 The sorts of places referred to in section 69(2) include
shopping malls and waterfronts.

Balancing striking workers’ right to picket

against a landowner’s right to the peaceful
use and enjoyment of property
When striking workers picket, they often sing, shout,
ululate, bang instruments and blow whistles. These
noises can interfere with a landowner’s right to use and
enjoy his or her property. A difficult issue which arises
in these sorts of cases is how to balance striking
workers’ right to picket against a landowner’s right to
the peaceful use and enjoyment of his or her property.
The KwaZulu-Natal High Court: Durban considered this
issue in Growthpoint Properties Ltd v South Africa
Commercial Catering and Allied Workers Union
(SACCAWU) and Others.160
The facts of this case were as follows. The
applicant owned the La Lucia Shopping Mall in
Durban. One of the tenants in this mall was Dis-Chem
Pharmacies (Pty) Ltd. Towards the end of May 2010,
the employees of Dis-Chem embarked on a strike and,
as a part of this strike, they picketed in the basement
parking entrance of the Mall.
While they were picketing, the strikers blew
whistles, sang, shouted and ululated. Unfortunately,
these noises disturbed members of the public and
disrupted normal business activities in the Mall. The
applicant then claimed that the noise amounted to a
nuisance and applied to the High Court for an interdict
to prevent the nuisance.
The High Court granted the interdict. In arriving at
this decision, the Court began by stating that the key
challenge it had to address was how to balance the
striking workers’ constitutional right to picket against
the landowner’s constitutional right to property, to
trade and to a healthy environment.161 Before turning
to this task, however, it would be helpful to summarise
the nature and purpose of picketing.
In labour law, the High Court explained further,
picketing is commonly understood as an organised
effort of people carrying placards in a public place at
or near a business premises. The act of picketing
involves an element of physical presence which, in
turn, incorporates an expressive component. Its
purposes are usually twofold: first, to convey
information about a labour dispute to gain support for
the cause from other workers, clients of the struck
employer or the general public, and second, to put
social and economic pressure on the employer, and
often, by extension, on its suppliers and clients.162
After summarising the nature and purpose of
picketing, the High Court turned to balance the
conflicting constitutional rights. In this respect, the
High Court started by explaining that like all other
rights, the right to picket is not unlimited and absolute.
Inevitably in the nature of pickets, non-parties to the
labour dispute are inconvenienced and sometimes
even prejudiced.163 Although protests and
demonstrations are part of the fabric of everyday life
and non-parties to the disputes have to develop some
tolerance to withstand the disruption caused by
picketers, such tolerance has its limits.164
In this case, the High Court explained further,
tolerance levels were exceeded when the applicant and
its tenants could not conduct their business and
suffered a loss of revenue as the public took their
business elsewhere. In addition, the evidence given by
experts employed by the applicant showed that the
level of noise was unacceptably high. It exceeded the
legal limit of 85 decibels set by the regulations
governing noise-induced hearing loss. The noise made
by the strikers thus created an unhealthy environment
and prevented the applicant and its tenants from using
their property.165
In light of these findings, the High Court went on to
conclude that the strikers could exercise their rights
reasonably without interfering with the applicant, its
tenants and the general public. The fact that the noise
made by the strikers caused the applicant and its
 tenants to lose business was an unacceptable and
unjustifiable limitation on their right to property, to
trade and to a healthy environment.166
The strikers were, therefore, ordered to lower their
noise level, but not to stop demonstrating, picketing,
carrying placards or singing and chanting softly.167

15.2.3.3 Petitions
The right to petition protects the right to make direct submissions to the
relevant person or institution.168 The right to petition in terms of section
17 should be read together with sections 56(d) and 115 of the
Constitution which provide that the National Assembly (NA) and the
provincial legislatures are obliged to ‘receive petitions, representations
or submissions from any interested persons or institutions’.
To give effect to these rights and obligations, all the provincial
legislatures, with the exception of the Eastern Cape Provincial
Legislature, have enacted Petitions Acts.169 Section 1 of the KwaZulu-
Natal Petitions Act defines a petition as:
a complaint, request, representation or submission addressed by a petitioner
to the Committee, and may take the form of:
(a) a single petition, which is an individual submission from a single
petitioner concerning a particular complaint or request;
(b) a collective petition, which is a collection of signatures from a number of
petitioners concerning a particular complaint or request;
(c) a group petition, made up of individual or group submissions from a
number of petitioners concerning the same or substantially similar
complaints or requests;
(d) an association petition, which is an individual submission from an
association, or an individual mandated by an association, concerning a
particular complaint or request.

15.2.4 The Regulation of Gatherings Act 205 of 1993

During the apartheid era a number of repressive laws were enacted to
prohibit assemblies and demonstrations and to suppress dissent.
Among the most notorious of these laws were the Riotous Assemblies
Act170 and the Internal Security Act.171 In terms of the Internal Security
Act, the Minister issued an annual notice in terms of which all outdoor
gatherings were declared illegal – except gatherings for bona fide
religious and sporting events – unless a magistrate granted permission
to hold a gathering.

The Regulation of Gatherings Act

A constructive attempt to reconcile the rights of
assemblers with the state’s interest in maintaining
public order was advanced through the Regulation of
Gatherings Act (Gatherings Act). The Gatherings Act
includes the view of demonstrations as a right.
However, the right is subject to notification to the local
authorities and police seven days in advance.172 The
Act represents a compromise between the old and the
new order. Many of the provisions are not libertarian in
essence and seem to favour authority rather than the
realisation of the right to freedom of assembly. The
seven-day notice period could, in effect, put on ice
many passionate pleas.173 A further factor that may
chill the collective efforts of demonstrators is the
imposition of civil liability on the members of the
demonstration.174 However, the basic premise
underlying the Gatherings Act remains that everyone
has the right to assemble and protest peacefully and
that authorities have a duty to facilitate this through
negotiations with organisers of such an event if
necessary.
Given that the right to protest is fundamental to
the proper functioning of a democracy, the Gatherings
Act assumes that gatherings and protests will almost
always be allowed and that technicalities will not be
used to ban protests that would make the powers-that-
be uncomfortable. Although the provisions in the Act
assume that notification will be given, the absence of
giving notice does not automatically render a gathering
illegal. Thus, the Gatherings Act requires the relevant
police officers to try to identify organisers of protests
and gatherings and then to engage with those
organisers even if no notice was given of the protest or
gathering by its organisers.175 The Act further places a
legal duty on the responsible officer to engage with
organisers of a gathering or protest to try to reach
agreement about how the gathering or protest should
be conducted.176
To ensure the facilitation of peaceful gatherings,
the Gatherings Act allows the responsible officer to
impose certain conditions on the gathering or protest if
there are reasonable grounds to do so to minimise
traffic disruptions, to ensure continued access for
others to their places of work and property, to prevent
injury to any person and to prevent the destruction of
property.177 When an officer imposes such conditions,
he or she is required by law to give written reasons for
this.178 The Gatherings Act makes it clear that a
gathering or protest may only be prohibited in extreme
cases. Section 5 states that:
When credible information on oath is brought to the attention of a
responsible officer that there is a threat that a proposed gathering
will result in serious disruption of vehicular or pedestrian traffic,
injury to participants in the gathering or other persons, or
extensive damage to property, and that the Police and the traffic
officers in question will not be able to contain this threat, he shall
forthwith meet or, if time does not allow it, consult with the
convener and the authorised member, if possible, and any other
person with whom, he believes, he should meet or consult,
including the representatives of any police community
consultative forum in order to consider the prohibition of the
gathering.

Only after such a meeting, would a responsible officer

be able to prohibit a gathering if he or she is convinced
on reasonable grounds that no amendment to the
conditions of the gathering would prevent serious
disruptions or extensive damage to property.

Failure to give notice in terms of the

Regulation of Gatherings Act
Section 12(1)((a) of the Regulation of Gatherings Act
(Gatherings Act) makes it a criminal offence for more
than 15 people to convene a gathering without giving
notice or adequate notice of their intent to do so to a
municipality, in whose jurisdiction the gathering is
meant to occur. In terms of this section, it is only the
convener of the gathering that is criminally liable. The
constitutionality of this section was considered by the
Constitutional Court in Mlungwana and Others v S and
Another.179 The main issue was whether section 12(1)
(a) infringed the right entrenched in section 17 of the
Constitution and if so whether such limitation was
reasonable and justifiable in terms of the limitation
clause. The Constitutional Court upheld and confirmed
the declaration of invalidity made by the High Court.
In this case, a civic organisation called the Social
Justice Coalition (SJC) campaigned for proper
sanitation services in the areas in which its members
resided. As part of a protest, the 15 applicants
chained themselves to the railing of the Civic Centre of
Cape Town. They were subsequently joined by others.
Later about 21 of the protesters were charged with
contravening section 12(1)(a) of the Gatherings Act. At
the end of the trial, 10 of the protesters who convened
the gathering were convicted of violating section 12(1)
(a) of the Gatherings Act. It was accepted that the
protest was peaceful and respectful of the rights of
others. The applicants appealed on the basis that
section 12(1)(a) of the Gatherings Act was
unconstitutional. In essence, the state argued that
section 12(1)(a) did not limit section 17 of the
Constitution as it was a mere regulatory measure and
in any event it was justifiable in terms of the limitation
clause. It argued that the requirement that notice be
given served the legitimate purpose of ensuring that
proper planning could take place and that the
requirement did not place an undue burden on the
conveners.
The Constitutional Court held that section 17 of
the Constitution guaranteed the right of everyone to
assemble and the only internal modifier was that they
must do so peacefully and unarmed.180 The right is
extended to all persons, whatever their station in life,
in order together with others, to express their
frustrations, aspirations and demands. The Court held
that section 12(1)(a) of the Gatherings Act goes
beyond mere regulation. The possibility of the criminal
sanction envisaged in section 12(1)(a) ‘prevents,
discourages, and inhibits freedom of assembly, even if
only temporarily.’181 The fact that a gathering of 16
people cannot just be convened in a public place
amounts to a limitation of the right to assemble freely,
peacefully and unarmed. Having concluded that
section 12(1)(a) of the Gatherings Act limited section
17 of the Constitution, the Court turned to an analysis
of the limitation clause. The Court quoted with
approval dicta from South African Transport and Allied
Workers Union (SATAWU) and Another v Garvas and
Others182 that the right to assembly is central to our
constitutional democracy as it gives a voice to the
powerless, which includes vulnerable groups that do
not have political or economic power. This right allows
them the opportunity to attempt to influence political,
labour and business decisions. It is this collective
participation that increases their ability to exert
influence.183 The right to assembly also allows persons
to exercise other constitutional rights such as the
freedom of speech, dignity, freedom of association and
the right to stand and vote for public office.
The purpose of the limitation, according to state,
was to ensure peaceful protests by enabling the police
and others to plan properly. The Court was not
convinced by the argument that the state operates with
scarce resources and that the notice requirements
enable them to use their resources optimally.
Insufficient information was submitted as to the costs
to the state of having to respond to protests in the
event of no notice being given. One of the main
objectives of the section was to reduce the high levels
of criminal activity that occurs during some protests.
While this is a legitimate objective, the Court held that
the question was whether the law struck an
appropriate balance between the exercise of
entrenched rights and ensuring a safe and secure
environment.184
According to the respondent, the state, after
receiving notice of the gathering, will be able to ensure
that there is an adequate presence of police to prevent
violence. However, the Court held that the
criminalisation of a failure to give notice of the
gathering is ‘neither sufficient nor necessary for
achieving the ultimate purpose of that limitation
(peaceful protests through police presence).’185 The
Court was of the view that less restrictive means other
than criminal convictions may be able to achieve the
objective. Some of the less restrictive means that
could be used are notice given without the right to
restrict the gathering, civil liability for riot damages,
using existing common law and statutory crimes to
punish those engaging in unlawful acts during the
protests and administrative fines being imposed. The
Court finally concluded that the ‘nature of the
limitation is too severe and the nexus between the
means adopted in section 12(1)(a) and any
conceivable legitimate purpose is too tenuous to
render section 12(1)(a) constitutional. This is even
more so when regard is had to the existence of less
restrictive means to achieve section 12(1)(a)’s
purpose.’186 As a consequence, the Court held that the
section was unconstitutional. The limitation was thus
not narrowly tailored to meet the objective of ensuring
peaceful protests and the absence of criminality.

A balancing act gone awry

The police have a duty to keep the peace. They must
also protect the interests of all parties and must
protect the safety of individuals as well as their
property. At the same time, in doing so, the police
cannot infringe on the right of others to protest
peacefully. When a protest takes place without the
necessary notice having been given, the police officer
in charge cannot automatically prohibit such a
gathering or disperse those who have gathered to take
part in a protest. The individual police officers must
exercise a discretion, guided by the Gatherings Act and
informed by section 17 of the Constitution. In doing
so, they must carefully balance the various interests.
In August 2012 – after several incidents of
violence in the preceding days – the police opened fire
 and killed 34 mineworkers at Marikana. After this
massacre, the President appointed a Commission of
Inquiry to look into the circumstances that led to this
disaster. However, in the wake of the massacre, various
institutions prohibited gatherings around Marikana as
this news report explains:
In the wake of the [Marikana] massacre, activists alleged a
crackdown on dissent, especially in the platinum belt, but
certainly not confined to it. In September, the Rustenburg Local
Municipality prohibited the Wonderkop Community Development
Association from organising a protest against police violence after
a councillor, Paulinah Masutlho, was shot dead, allegedly by the
police.

Another protest, to be held by the Marikana Support Campaign

outside the Farlam Commission, was also prohibited. In Makause
on the East Rand of Gauteng, the police thwarted criticism of
their own by blocking attempted protests against police violence.

Then it emerged that before the massacre, the Bafokeng

Landbuyers’ Association had also attempted to hold protests on
mining rights, the demolition of houses, and the Protection of
State Information Bill, but their attempts were repeatedly
thwarted by the Rustenburg Municipality, which banned their
protests on what they claimed to be spurious grounds. They have
also claimed that the Municipality is placing a myriad obstacles in
the way of their and others’ right to protest, to protect powerful
mining interests and to stifle dissent against their practices in the
platinum belt.187

Can these prohibitions on gatherings in the wake of the

Marikana massacre be justified?

15.2.5 Liability for damage caused during a gathering

Apart from imposing an obligation on the organisers of a gathering to
provide notice to the local authority and police seven days prior to the
gathering,188 the Gatherings Act also imposes joint and several liability
on the organisers of a demonstration or gathering for riot damage
caused by the participants in the demonstration or gathering.189
 Section 11(2) of the Gatherings Act goes on to provide, however, that
an organiser can avoid liability if it can prove:
(a) that it did not permit or connive at the act or omission which caused the
damage in question;
(b) that the act or omission in question did not fall within the scope of the
objectives of the demonstration or gathering in question and was not
reasonably foreseeable; and
(c) that it took all reasonable steps within its power to prevent the act or
omission in question.

The constitutional validity of these provisions was challenged in South

African Transport and Allied Workers Union (SATAWU) and Another v
Garvas and Others.190
The facts of this case were as follows. SATAWU organised a large
gathering in the centre of Cape Town as part of a strike by its members
in the security industry. In preparation for the gathering, SATAWU
complied with all the procedural requirements of the Gatherings Act. In
addition, it appointed approximately 500 marshals and advised its
members to refrain from unlawful and violent behaviour. It also asked
the municipality to clear the roads of vehicles and to erect barriers
along the route.
Despite the precautions carried out by SATAWU, the respondents’
shops were looted and their vehicles damaged during the gathering.
The respondents then sued SATAWU for damages in terms of section
11(1) of the Gatherings Act. In response, SATAWU denied that it was
liable and applied for an order declaring section 11(2) of the Act to be
unconstitutional and invalid on the grounds that it was irrational.
SATAWU argued that section 11(2) of the Gatherings Act was
irrational because it required the organisers of a gathering to take all
reasonable steps to prevent the act or omission in question even when
that act or omission was not reasonably foreseeable. Apart from being
irrational, SATAWU argued in the alternative that section 11(2) also
limited the right to freedom of assembly and that this limitation was not
reasonable or justifiable.
A majority of the Constitutional Court rejected both these
arguments and found that section 11(2) was constitutionally valid. In
arriving at this decision, the Court began by noting that it was obliged –
to the extent that this was possible – to interpret section 11(2) in a
manner that gave it a rational meaning and preserved its validity so that
the purpose for which it was enacted could be realised.191 The Court
then remarked that:
Gatherings, by their very nature, do not always lend themselves to easy
management. They call for extraordinary measures to curb potential harm. The
approach adopted by Parliament appears to be that, except in the limited
circumstances defined [in section 11(2)], organisations must live with the
consequences of their actions, with the result that harm triggered by their
decision to organise a gathering would be placed at their doorsteps.192

After making these points, the Court then turned to examine section
11(2). In this respect, the Court began by noting that the purpose of the
section was:
• to provide for the statutory liability of organisations
• to afford the organiser a tighter defence by allowing it to rely on the
absence of reasonable foreseeability and the taking of reasonable
steps
• to place the onus on the organiser to prove this defence instead of
requiring the plaintiff to prove the organiser’s unlawfulness and
negligence.193

There is an interrelationship, the Court noted further, between the steps

that an organiser takes on the one hand and what is reasonably
foreseeable on the other. Section 11(2) requires that the organiser takes
reasonable steps within its power to prevent the act or omission that is
reasonably foreseeable. The real link between the foreseeability and the
steps taken is that the steps must have been reasonable to prevent what
was foreseeable. If the steps taken at the time of planning the gathering
were indeed reasonable to prevent what was foreseeable, the taking of
those preventative steps would render the act or omission that
subsequently caused the riot damage reasonably unforeseeable.194
It must be emphasised, however, that the Court went on to note:
that organisations are required to be alive to the possibility of damage and to
cater for it from the beginning of the planning of the protest action until the
end of the protest action. At every stage in the process of planning, and during
 the gathering, organisers must always be satisfied of two things: that an act or
omission causing damage is not reasonably foreseeable and that reasonable
steps are continuously taken to ensure that the act or omission that becomes
reasonably foreseeable is prevented. This is the only way in which organisers
can create a situation where acts or omissions causing damage remain
unforeseeable. In such a case, the requirement of taking reasonable steps is not
met simply by guarding against the occurrence of the damage-causing act or
omission. The inquiry whether the steps taken were sufficient to render the act
or omission in question no longer reasonably foreseeable might be very
exacting. An important qualification is that the steps that the organisers are
required to take must be within their power.195

Although section 11(2) therefore provided a viable defence to the

organisers of a demonstration or gathering, the majority judgment
found that this nevertheless limited the right to freedom of assembly
guaranteed in section 17 of the Constitution. This is because
compliance with the requirements of section 11(2) of the Gatherings
Act significantly increased the cost of organising protest action. It may
also well be that poorly resourced organisations that wish to organise
protest action about controversial causes that are nonetheless vital to
society could be inhibited from doing so. Both of these factors
amounted to a limitation of the right to assemble and to demonstrate.196
The Court nevertheless found the limitation to be reasonable and
justifiable in terms of the limitation clause. This is because the
limitation served an important purpose of protecting members of
society, including those who do not have the resources or capability to
identify and pursue the perpetrators of the riot damage for which they
seek compensation.When a gathering imperils the physical integrity,
the lives and the sources of livelihood of the vulnerable, the
organisations that are responsible for setting in motion the events that
gave rise to the suffered loss must bear liability for damages arising
therefrom.197

15.3 Political rights

15.3.1 Introduction
Before 1994, the majority of South Africans were prohibited from voting
in elections based solely on their race. The oppressive and
undemocratic state curtailed much of extra-parliamentary political
activity. Liberation movements such as the ANC, AZAPO, the PAC and
the SACP were prohibited from operating in the country. Police
harassed and at times detained, tortured and even killed activists who
belonged to organisations such as the UDF – which was established in
1983 to spearhead resistance against apartheid – and the End
Conscription Campaign (ECC). In short, the majority of South Africans
who opposed the apartheid regime enjoyed little or no political rights.
The drafters of the Constitution, therefore, included a wide range of
political rights in the Constitution. Section 19(1) of the Constitution
thus states that ‘[e]very citizen is free to make political choices’. This
includes the right:
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party;
and
(c) to campaign for a political party or cause.

Section 19(2) states that ‘[e]every citizen has the right to free, fair and
regular elections for any legislative body established in terms of this
Constitution’ while section 19(3) confirms that ‘[e]very adult citizen’
has the right:
(a) to vote in elections for any legislative body established in terms of this
Constitution and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.

The Constitutional Court has considered the purpose behind the

political rights guaranteed in section 19 of the Constitution in a number
of cases.198 In these cases, the Court has held that these rights are
important for two reasons. First, the rights are important because they
are aimed at preventing a recurrence of the wholesale denial of political
rights that took place during the apartheid era. Deputy Chief Justice
Moseneke eloquently explained this in Ramakatsa and Others v
Magashule and Others where he held that:
[d]uring the apartheid order, the majority of people in our country were denied
political rights which were enjoyed by a minority. The majority of black people
 could not form or join political parties of their choice. Nor could they vote for
those who were eligible to be members of Parliament. Differently put, they
were not only disenfranchised but were also excluded from all decision-
making processes undertaken by the government of the day, including those
affecting them … The purpose of section 19 is to prevent this wholesale denial
of political rights to citizens of the county from ever happening again.199

A second reason why these rights are important is that they aim to give
effect to a system of representative democracy. In Ramakatsa,
Moseneke DCJ explained this by affirming that section 19 has to be
interpreted against the background of the Constitution as a whole,
especially the role afforded in the Constitution to political parties:
In our system of [constitutional] democracy political parties occupy the centre
stage and play a vital part in facilitating the exercise of political rights. This fact
is affirmed by section 1 of the Constitution which proclaims that ‘[u]niversal
adult suffrage, a national common voters roll, regular elections and a multi-
party system of democratic government, to ensure accountability,
responsiveness and openness’ are some of the values on which our State is
founded.200

In contrast to most of the rights set out in the Bill of Rights that attach to
‘every person’, the rights contained in section 19 of the Constitution are
available only to citizens.201 It can therefore be observed that the
Constitution distinguishes between citizens who are the bearers of
political rights and ‘everyone’ else, including, for example, foreign
nationals, who are not entitled to participate in the exercise of political
rights. While foreign nationals enjoy almost all the other rights
contained in the Bill of Rights, only citizens can invoke the political
rights set out in section 19.

Does section 19 restrict the political activities

of non-citizens?
Rautenbach and Malherbe argue that the political
activities guaranteed in section 19 of the Constitution
should be restricted to those activities that form a part
of the formal democratic process such as participation
 in elections and the appointment and functioning of
institutions provided for in the Constitution and
legislation. This is because only citizens are the
bearers of the rights guaranteed in section 19. If the
concept of political activities was interpreted broadly
to include all actions associated with holding or
expressing political views or engaging in political
activities, then the rights of non-citizens to freedom of
opinion, expression, assembly and association, which
are guaranteed for everyone, would be drastically
restricted.202
However, section 19 itself does not restrict the
rights of non-citizens. It merely reserves the enjoyment
of these rights for citizens. If the legislature or other
sections of the Constitution place restrictions on the
rights of non-citizens to take part in the activities of a
political party, such restrictions would not fall foul of
section 19. However, if such restrictions also limit the
rights to freedom of expression, assembly and
association of non-citizens, non-citizens will be able to
invoke the latter rights to challenge the restricting
provisions. A court will then have to decide whether
such restrictions are justifiable or not in terms of the
limitation clause. In other words, it is important to
remember that rights are interdependent and that a
legislative provision (or other action) can infringe on
more than one right at the same time.

15.3.2 The right to make political choices and the role of

political parties

15.3.2.1 Introduction
Political parties lie at the heart of South Africa’s constitutional
democracy. The Constitution does not regulate the internal affairs of
political parties. Nor does it contain extensive provisions on the
appropriate constitutional relationship between political parties and
constitutional structures such as legislatures and executives. Note too
that the right to make political choices goes beyond the involvement of
citizens in party politics: the involvement of some citizens in social
movements, citizen activism and other civil society organs is also
pivotal for the proper functioning of a democracy. The rights to freedom
of expression, assembly and association ensure that these political
activities not associated directly with political parties are adequately
protected by the Constitution.
However, section 19(1) of the Constitution, which guarantees for all
citizens the right to form, participate in the activities of and campaign
for political parties, affirms that such participation lies at the heart of
the right to make political choices. Section 19(1) thus primarily
guarantees the freedom to make a choice with regard to a political party
and once that choice has been made, it safeguards a member’s free and
fair participation in the activities of the party concerned.203
These provisions have a number of important consequences.
Among these are the following:
• First, members of a political party have a constitutional right to
participate in the activities of their party.
• Second, this constitutional right can be enforced not only against
external interference, but against interference arising from within
the party itself.204 The constitutions and rules of political parties
must, therefore, be consistent with the Constitution.205

More than just political parties

Apart from providing that every citizen has a general
right to ‘make political choices’, section 19(1) also
provides that every citizen has the specific right to
form; participate in the activities of; and campaign for
political parties. Although these specific itemised rights
all relate to political parties, in New Nation Movement
NPC and Others v President of the Republic of South
 Africa and Others,206 a majority of the Constitutional
Court held that the general right to make political
choices is not limited to choices about political
parties. Instead, it goes much further and includes the
right to make other political choices, including the right
not to join political parties. Madlanga J set out these
principles as follows:
I want to lay emphasis on [section 19(1)]. It affords every citizen
the freedom to make political choices. The fact that what are
itemised in the subsection as being the choices a citizen is free to
make all relate to political parties does not mean those choices
concern political parties only. If that were the case, instead of
saying these rights or freedoms “include”, the subsection would
simply have said the rights “are”. The present formulation means
the rights are more than what is itemised. As the first applicant
submits, paragraphs (a) to (c) of section 19(1) “are mere
examples of ‘political choices’; they do not cover the field of what
[section 19(1)] protects”. A conscious choice not to form or join
a political party is as much a political choice as is the choice to
form or join a political party; and it must equally be deserving of
protection.207

Although the constitutions and rules of political parties must be

consistent with the Constitution, it is important to note that section
19(1) does not spell out how members of a political party should
exercise their right to participate in the activities of their party. Instead,
it is left to political parties themselves to determine how their members
should participate in their activities. This is because these activities are
internal matters of each political party and they are best placed to
determine how members should participate. The constitutions of
political parties are the instruments which facilitate and regulate
participation by members in the activities of a political party.208
Enforcing internal party discipline without
negatively affecting internal party democracy
In 2012, the then President of the ANC Youth League,
Mr Julius Malema, was expelled from the ANC after he
was found guilty of contravening what were then rules
25.5(c) and (i) of the ANC Constitution. Section
25.5(c) – since amended – stated that ‘[b]ehavior
which brings the organisation into disrepute or which
manifests a flagrant violation of the moral integrity
expected of members and public representatives or
conduct unbecoming that of a member or public
representative’ shall constitute misconduct by a
member of the ANC. Section 25.5(i) stated that
‘[b]ehaving in such a way as to provoke serious
divisions or a break-down of unity in the organization’
would similarly constitute misconduct. A disciplinary
committee of the ANC relied on these provisions to
expel Mr Malema for expressing his personal views at a
press conference of the ANC Youth League ‘which
sought to portray the ANC government and its
leadership under President [Jacob] Zuma in a negative
light in relation to the African agenda and which had
the potential to sow division and disunity in the ANC,
and for expressing his personal views on Botswana
which contravened ANC policy’.209
Assuming that the various disciplinary committees
were properly constituted and that they provided Mr
Malema a fair hearing, the expulsion of Mr Malema
would probably be found to pass constitutional muster.
However, Mr Malema and his allies argued at the time
that the action against him was motivated by political
considerations. They also argued that such actions
would have a chilling effect on robust debate within the
internal structures of the ANC.
 This case thus provides evidence of the difficult
constitutional and broader ethical issues that arise
when a political party wishes to discipline its members.
On the one hand, no organisation – especially not a
political party – can allow ill-discipline among its
members. On the other hand, where members of a
party are disciplined for asking critical questions about
the leadership of their political party, internal party
democracy may suffer and may even be extinguished.
Two pertinent issues arise. Would vague and
general disciplinary rules that prohibit members of a
political party from bringing that party into disrepute
and of sowing divisions in that party pass
constitutional muster? If not, how could a political
party formulate its disciplinary rules to ensure that
party discipline is enforced without snuffing out
internal debate in the party?

15.3.2.2 The regulation of political parties

As pointed out above, political parties play an important role in South
Africa’s system of representative democracy. However, there are no
significant constitutional or legislative provisions that regulate the
internal affairs of political parties such as the manner in which they
select their candidates for elections or the manner in which they
discipline members who have allegedly breached their rules.210
The legal relationship between a party and its members, therefore, is
largely based on the common law principles that govern voluntary
associations. In terms of the common law, a voluntary association is
taken to have been created by agreement as it is not a body established
by statute. A political party’s constitution together with its rules
collectively comprise the terms of the agreement entered into by its
members. It is, however, regarded as a unique agreement.
The outcome of the elections of the 54th National Conference of the
ANC held at Nasrec in December 2017 had a profound impact on South
African politics. Shortly after becoming ANC President, Cyril
Ramaphosa became President of the Republic upon the resignation of
former President Zuma. The stakes at the 54th National Conference
were extremely high and there were a number of court challenges that
preceded the holding of the conference. One of the most significant of
these occurred in KZN, which was a stronghold of former President
Zuma and his supporters. In Dube and Others v Zikalala and Others,211
the applicant challenged the validity of the eighth KZN Provincial
Elective Conference of the ANC held in Pietermaritzburg in November
2015. Various irregularities were alleged to have occurred. The High
Court pointed out that, in the main, elections for national, provincial
and local government legislatures are contested by political parties.
Members of these legislative bodies are drawn from lists of candidates
prepared by the political parties. The electoral success of any of the
political parties is determined by their policies and their plans to meet
the challenges the country faces. The Court reasoned that participation
in the affairs of a political party is critical to properly give effect to the
rights contained in section 19 of the Constitution.212 However, section 19
does not prescribe how party members are meant to exercise their right
to participate in the activities of the party. These are internal affairs of
the party and are regulated by the constitution of the political party.
Section 17.2.1 of the Constitution of the ANC provides that the
provincial conference shall be held ‘at least once every 4 (four) years
and more often if requested by at least one third of all branches in the
Province.’ The Court interpreted this section to mean that the provincial
conference had to be held once every 4 years and earlier if requested to
do so by at least one third of all branches. Thus on this interpretation, a
conference could only be held in the 4th year after the previous
conference except if one third of the branches request an earlier
conference. From a contextual perspective, this would afford the
provincial executive adequate time to implement its policies.
The KZN provincial conference was held from the 6th to the 8th of
November 2015 and the issue was whether this complied with the
prescripts of section 17.2.1 of the ANC’s Constitution. The previous
provincial conference was held on the 11th to the 13th of May 2012.
According to the interpretation accepted by the Court, the provincial
conference ought to have been held in 2016. It was common cause that
there was no request from one third of the branches to hold the
conference earlier. Given that the KZN conference was held earlier than
provided for in section 17.2.1 of the ANC’s Constitution, the Court
found that the holding of the conference was in breach of the ANC’s
Constitution and was therefore unlawful.
The judgment meant that as the provincial conference was not
lawfully convened, the delegates elected could not take their place as
voting delegates at the National Conference.

Impact of political conference on political

processes or the public
In its judgment in Dube, the High Court concluded that
the holding of a provincial conference, even by the
ruling party, is not an exercise of public power even
though the party receives funds from the state. The
Court was of the view that the ‘decisions of the PC
(Provincial Conference) have no direct impact on the
political processes or the public generally.’213 Do you
agree with this conclusion?
Although there are no significant constitutional or
legislative provisions regulating the internal affairs of
political parties, the Electoral Act214 and the Electoral
Commission Act215 do regulate the manner in which
political parties may participate in elections. These
Acts provide, inter alia, that political parties who wish
to contest an election must register,216 submit a list of
candidates 217 and pay a deposit which is forfeited in
the event of the party not securing a seat in the
elections. Every political party and every participating
candidate must also subscribe to the code of
conduct.218 Finally, it is important to note that the
Electoral Commission may not accept the late
submission of candidate lists by parties.219
 A generous interpretation of sections 14 and
17 of the Municipal Electoral Act
In African Christian Democratic Party v Electoral
Commission and Others, the Constitutional Court held
that the reason why political parties are required to pay
a deposit before they can contest an election is to
ensure that their participation in the election in
question is not frivolous.220
In this case, the applicant decided to contest the
2006 local government elections in the Cape Town
Metro. After taking this decision, it lodged a notice of
intention to contest the elections together with a list of
candidates at the Electoral Commission’s office in
Cape Town. Unfortunately, it did not pay a deposit at
the Commission’s Cape Town office as required by
sections 14 and 17 of the Local Government:
Municipal Electoral Act.221
When the applicant was informed of this fact, it
asked the Electoral Commission to take the deposit
from the surplus funds it had deposited at the Electoral
Commission’s head office in Pretoria. The Electoral
Commission, however, refused to do so and
disqualified the applicant from contesting the elections
in Cape Town. The applicant then applied
unsuccessfully to the Electoral Court for an order
overturning the Commission’s decision. After the
Electoral Court dismissed the application, the
applicant appealed to the Constitutional Court. The
Constitutional Court upheld the appeal and found in
favour of the applicant.
In arriving at this decision, the Constitutional Court
began by noting that even though sections 14 and 17
 of the Municipal Electoral Act specifically stated that
the deposit should be paid at the Electoral
Commission’s local offices and not at its head office,
these sections should not be interpreted in a way that
prohibited deposits being paid at the head office. This
is because the central purpose of sections 14 and 17
was to make sure that political parties who have
notified the Commission that they intend to contest the
election are being serious. There was no central
purpose attached to the precise place where the
deposit was paid.222
In addition, the Constitutional Court explained
further, interpreting sections 14 and 17 of the
Municipal Electoral Act in a manner that allowed the
deposits to be paid at the Electoral Commission’s
head office facilitated participation in the elections
rather than exclusion. This interpretation was also
consistent with section 1(d) of the Constitution which
provides that ‘[t]he Republic of South Africa is one
sovereign, democratic state founded on the following
values: Universal adult suffrage, a national common
voters roll, regular elections and a multi-party system
of democratic government to ensure accountability,
responsiveness and openness’.223
Apart from the reasons set out above, the
Constitutional Court also held that no other candidates
or parties would be harmed by a generous
interpretation of sections 14 and 17 of the Municipal
Electoral Act.224

15.3.3 State funding of political parties

Political parties can only operate effectively if they have access to funds.
However, this need for funds is a source of anxiety in many
democracies. Where political parties are reliant on private donors and
big corporations for their funds, this often distorts the policies and
programmes of political parties to the detriment of those voters who
cannot influence the policies and programmes in a similar fashion.
Money, so it is said, can corrupt democratic policies and those with
money will often try to do so. Section 236 of the Constitution therefore
states that ‘to enhance multi-party democracy, national legislation must
provide for the funding of political parties participating in national and
provincial legislatures on an equitable and proportional basis’. The
national legislation referred to in this section is the Public Funding of
Represented Political Parties Act.225
This Act establishes a fund which is managed by the Electoral
Commission. Money is allocated from this fund to the parties
represented in the national and provincial legislatures from time to
time. The amount each party is allocated depends on two factors: first,
each party’s proportional number of seats, and second, the principle of
equity. The principle of equity provides that each party must at least
receive a fixed minimum amount. This means larger parties will receive
more funds than smaller parties. New parties entering the political
space will receive no funds as they will have no seats in Parliament. The
money allocated to each party must be used for purposes that are
compatible with the functioning of a political party in a democratic
society.

Proportional national funding provides an

unfair advantage to incumbent parties
Lowry suggests that instead of adopting a system of
proportional national funding of political parties it
would be better to adopt an egalitarian model similar
to those employed in the United Kingdom and Canada.
In terms of this approach, spending caps are imposed
on political parties and greater transparency of funding
and in particular private financing is required.226 Where
funding is allocated on the basis of the proportional
 support the party received in the previous election, so
the argument goes, it makes it very difficult for smaller
parties to compete fairly in elections. The more money
to which a party has access, the better it can run an
election campaign. The converse is also true. Thus, the
system is often criticised because it provides an unfair
advantage to incumbent parties.

Apart from the money allocated to political parties represented in the

national and provincial legislatures, each political party is free to raise
its own funds through private donations. Unlike the approach adopted
in a number of other constitutional democracies, however, there is
limited regulation of private funding in South Africa.227
In My Vote Counts NPC v Minister of Justice and Correctional Services
and others,228 the Constitutional Court held that the Promotion of
Access to Information Act (PAIA) was constitutionally deficient as it
failed to provide for the recording, preservation and disclosure of
information on private funding of political parties and independent
candidates. The Court recognised that it is necessary for candidates
seeking public office to raise funds from the private sector to mount
successful political campaigns. But the funds raised bring into sharp
focus the interest of the electorate to access the information regarding
the private funding of political parties. The Court quoted with approval
comments from the US Supreme Court in Buckley v Valeo229 that access
to information regarding campaign funding enables voters to evaluate
candidates more accurately than if they relied solely on party labels and
campaign speeches. If the voters are aware of the source of the funds,
they will be able to ascertain whether the candidate, if elected, is
advancing the interests of those that funded their campaigns.
Disclosure also deters both actual and perceived corruption.
The applicants in this case argued that PAIA, which was the
legislation envisaged in section 32 of the Constitution, was deficient in
that it failed to enable voters to access information on the private
funding of political parties and independent candidates. In terms of
section 32 of the Constitution, a requester can request the information
from another person only if they are able to demonstrate that it is
reasonably needed or required for the exercise and protection of any
rights. Any requester must therefore disclose the right that he or she is
seeking to exercise or protect.
Section 19 in broad terms protects the right of every citizen ‘to make
political choices.’ Voting is fundamental to a functioning and vibrant
constitutional democracy. The Court held that what is envisaged in
section 19 is an informed exercise of the right to vote.230 The Court went
on to hold that public office should only be held by those worthy of
representing the electorate after being properly examined and
evaluated.231 In order to enable voters to make the quality of decisions
that would advance our constitutional democracy, information relating
to the sources of funding of political parties and independent
candidates must be stored and be reasonably accessible to potential
voters.
The Court emphasised that the state is obliged to do everything
reasonably possible to give meaningful expression to the right to vote
and the right of access to information. Lack of transparency and
openness could result in some of the foundational values of the
Constitution being placed at the whim and mercy of unknown and
unscrupulous funders of political parties.232 It is for these reasons that
the Court concluded that information on private funding is critical ‘for
the proper exercise of the right to vote.’ All any voter need do, to
establish that the information is required for the exercise or protection
of any rights, is to state that the information pertaining to the disclosure
of the sources of private funding is required to protect their right to vote.
The Court held that political candidates should have virtually
unrestrained access to funding information of each other. In addition,
the media and academia should have similar access to this information.
Media, NGOs, political parties and academia are able to rely on section
16(1) of the Constitution which protects the right to freedom of
expression. Obtaining information on the sources of political funding
would enable these persons and bodies to exercise and protect their
right to freedom of expression, thus enabling the entire electorate to
participate meaningfully in elections.
 The Court concluded that the disclosure responsibilities in PAIA do
not extend either to political parties or to independent candidates and
is therefore constitutionally deficient. The inconsistency with the
Constitution lies in the fact that PAIA did not require that ‘information
on the private funding of a political party and independent candidates
to be recorded and preserved’ and be made reasonably accessible.233
Access must be free flowing and not dependent on the discretion of a
Minister or state official. The general principle that the Court laid down
was that the state must ensure that ‘the information be recorded,
preserved and disclosable in a reasonably accessible manner and that it
is not to be paid for.’234 This is essential in order to enable voters to make
political choices and to participate in elections effectively. This then
imposes a constitutional duty on political parties and independent
candidates to record, preserve and disclose information relating to
private funding received by them. Having established this general
principle, the Court in deference to the separation of powers, left it to
the legislature to decide on how best to give effect to this constitutional
obligation.
The concurring judgment emphasised235 that the right to vote is also
the right of the entire citizenry and to view it solely as an individual
right diminishes the concept of participatory democracy. The entire
citizenry has the right to free and fair elections. If the media cannot
access information relating to private funding, then the elections may
not be free and fair. Thus, when the media seeks access to information
pertaining to private funding, they can justify it on the basis that they
are acting in the public interest for the entire citizenry.
Parliament passed and the President assented to the Political Party
Funding Act 6236 in January 2019. In essence, the Act prohibits certain
donations being made directly to political parties, provides for the
disclosure of donations and entrusts the Electoral Commission with
additional responsibilities regarding receiving and making available
information pertaining to donations to political parties. The Act237 also
provides for the establishment of a Multi-Party Democracy Fund which
is to fund represented political parties from private sources. In terms of
this Act,238 political parties cannot accept donations from foreign
governments or from foreign government agencies, organs of state or
state-owned enterprises. Funding can be obtained from foreign entities
for the purpose of training, skills development and to assist with policy
development. Importantly section 9 of the Act obliges political parties
to disclose to the Electoral Commission all donations that it has
received above the prescribed threshold. Furthermore, a juristic person
or entity making a donation above the prescribed threshold must also
disclose the donation to the Electoral Commission. Finally, the
Electoral Commission is obliged to publish the information that it
receives on a quarterly basis.

The importance of citizen participation in

political processes between elections
Prior to the enactment of the Political Party Funding
Act, neither political parties nor donors were obliged to
disclose the donations made. The Act will undoubtedly
enhance transparency and accountability. However, it
took civic participation, a campaign by an NGO and
the Constitutional Court itself to finally get this piece of
legislation over the line. Discuss the importance of
citizens participating in the political and civic process
beyond elections. In a system dominated by political
parties, can citizens make a difference by banding
together over specific issues, as occurred in the My
Vote Counts case?

Prohibited donations
The Political Party Funding Act regulates both the
public and private funding of political parties. In so far
as the private funding of political parties is concerned,
the Act prohibits certain donations made directly to
 political parties. As De Vos points out, the prohibitions
are not without criticism:
Section 8(1) of the Act prohibits political parties from accepting a
donation from foreign governments or foreign government
agencies. It also prohibits, with some exceptions, foreign persons
or entities to donate. Importantly organs of state or state-owned
enterprise are also prohibited from donating to political parties.
Section 8(2) further prohibits a political party from accepting a
donation from a person or entity in excess of R15 million per
financial year.

This threshold is far too high, as it is obvious that any person or

institution that donates R15 million a year to a political party will
have bought influence over that party and its representatives to a
degree that is likely to distort democracy even further.

Section 8(3) prohibits a political party from accepting a donation

that it knows or ought reasonably to have known, or suspected,
originates from the proceeds of crime and must report that
knowledge or suspicion to the Commission. This means that
donations from Bosasa or from Mr Mazzotti, his company, or his
associates, would probably also become illegal when the Act
comes into operation.

Section 10 of the Act might worry the truly corrupt. It prohibits

any person or entity from delivering a donation to a member of a
political party other than for party-political purposes. A member
of a political party may only receive such a donation on behalf of
the party and may thus not keep a donation for his or her own
benefit.

Cases where a corrupt individual or company therefore makes a

“donation” to an individual party member (say, by installing
private security at their home, or paying off the bond on their
house) would become a criminal offence. This is because anyone
who contravenes section 8 or 10 is guilty of a criminal offence
and can be jailed for up to a period of 5 years. This section may
be overbroad, as it applies not only to party leaders or elected
representatives, but to any member of a political party.239

15.3.4 The right to free, fair and regular elections

Apart from the right to make political choices guaranteed in section
19(1) of the Constitution, section 19(2) provides that ‘[e]very citizen has
the right to free, fair and regular elections for any legislative body
established in terms of the Constitution’.
As the Constitutional Court pointed out in New National Party v
Government of the Republic of South Africa and Others,240 this right to
free and fair elections is closely related to the right to vote. This is
because ‘the right to vote is indispensable to, and empty without, the
right to free and fair elections; the latter gives content and meaning to
the former’.241
Most rights contained in the Constitution merely require the state
not to interfere with the exercise of the right. By contrast, the right to
free, fair and regular elections imposes positive obligations on the state
to ensure that it is fulfilled.242 For example, a date for elections has to be
promulgated, the secrecy of the ballot ensured and the process of
elections must be managed. The results of an election also have to be
declared.243
To ensure that these positive obligations are carried out in a free and
fair manner, the Constitutional Court has held that the power to
organise and manage elections must be vested in an independent
institution.244 Sections 181 and 190 of the Constitution read together
with the Electoral Commission Act fulfil this requirement by
establishing an independent Electoral Commission (a Chapter 9
institution) and then conferring the power to organise and manage
elections on this institution.
Together with the other Chapter 9 institutions, section 181(2) of the
Constitution expressly refers to the independence of the Electoral
Commission. Section 181(2) provides that ‘[the Chapter 9 institutions]
are independent, and subject only to the Constitution and the law, and
that they must be impartial and must exercise their powers and perform
their functions without fear, favour or prejudice’.245
In the New National Party case, the Constitutional Court held that
the independence of the Electoral Commission encompasses at least
two aspects: financial independence and administrative independence.
 Financial independence means that the Electoral Commission must
have access to funds reasonably required to enable it to carry out its
functions. An important consequence of this principle is that while
Parliament has the authority to set a budget for the Commission, it must
consider what is reasonably required by the Commission and deal with
its requests for funding in a rational manner. In addition, it also means
that Parliament rather than the executive must allocate the funds
required by the Commission.246
Administrative independence means that the Electoral Commission
must have control over those matters directly connected with the
functions the Commission has to carry out. An important consequence
of this principle is that while the executive is obliged to provide the
Commission with any assistance it requires ‘to ensure its
independence, impartiality, dignity and effectiveness’, the executive
may not tell the Commission how to conduct registration, whom to
employ, and so on.247
The main functions of the Electoral Commission are set out in
section 190(1) of the Constitution. This section provides as follows:

The Electoral Commission must:

(a) manage elections of national, provincial and municipal legislative
bodies in accordance with national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a period that must be
prescribed by national legislation and that is as short as reasonably
possible.

Besides vesting the power to organise and manage elections in an

independent institution, the Constitutional Court has also held that an
election will only be fair if the following two requirements are satisfied:
first, each citizen entitled to do so must not be allowed to vote more
than once in an election, and second, any person who is not entitled to
vote should not be allowed to do so. This means that the regulation of
the exercise of the right to vote is necessary so that any deviations from
these requirements can be eliminated or restricted to ensure the proper
implementation of the right to vote.248
 The duty that rests on the state to realise effectively an individual’s
political rights is aptly demonstrated in the matter of August and
Another v Electoral Commission and Others.249 In this case the
Constitutional Court was required to determine whether the right of
prisoners to vote had been infringed in so far as the Commission had
not taken the necessary steps to ensure that prisoners could register
and therefore vote. One of the functions of the Commission is to
compile and maintain a voters’ roll.250 The Commission decided
primarily for budgetary and administrative requirements that it would
not take any steps to allow prisoners to vote in the 1999 elections. The
Court held that the Commission had a duty to ensure the registration of
these prisoners so as to enable them to exercise their political rights.251
Note that the freeness and fairness of elections do not depend solely
on the Electoral Commission. Where some political parties are not
treated fairly by the media (including the state media), or where the
ability of political parties to campaign is restricted by the state, the
freeness and fairness of the election will be questioned. Similarly, where
state institutions or the members of powerful political parties are
allowed to intimidate voters, the freeness and fairness of the election
would similarly be compromised. Section 18 of the Electoral
Commission Act establishes an Electoral Court to prevent such abuses
from occurring. Section 96 of the Electoral Act empowers the Electoral
Court to enforce the various provisions in that Act aimed at preventing
just such abuses.
In Kham and Others v Electoral Commission and Another,252 the
applicants challenged the validity of the 2013 Tlokwe Local
Municipality by-elections on the basis that the segment of the voters’
roll that they received lacked the addresses of voters in the district. The
Constitutional Court set aside the by-elections and ordered that fresh
elections be held. It further ordered the Electoral Commission to obtain
sufficient particulars of voters’ addresses when registering voters to
enable it to ensure that voters ordinarily resided in that voting district.
Efforts were made by the Commission to comply with the order. About
eight days before the Tlokwe by-elections were meant to be held, a
group of independent candidates lodged a complaint that the voters’
roll omitted the physical addresses of 4 160 voters. The Commission
took the view that in terms of the Kham order, it was only obliged to
provide the addresses of voters who had registered after the date of the
court order which was the 30th of November 2015. In respect of voters
who had registered before that date, the Commission was of the view
that it needed to only provide the addresses that it had already received
and that there was no obligation to obtain addresses of which it had no
record. The Commission’s decision was challenged in the Electoral
Court which upheld the contentions of the independent candidates and
postponed the by-elections for about 6 weeks. The Commission then
appealed to the Constitutional Court against the decision to postpone
the by-election.
In Electoral Commission v Mhlope and Others, 253 the Constitutional
Court had to interpret its previous order in Kham. In addition, it was
faced with the conundrum of having to deal with a legally non-
compliant common voters’ roll in circumstances where elections had to
be held within a defined time period and the voters’ roll could not be
timeously remedied.
The Court held that on a proper interpretation of the order in Kham,
the Electoral Commission was obliged to provide all 4 160 addresses in
Tlokwe, where available. The Court accepted that obtaining specific
addresses may not always be possible but held that the Commission
was obliged to make reasonable efforts to obtain the addresses of
voters. It could not simply disclose the addresses it had on record.
Section 16(3), an amendment to the Electoral Act, which came into
operation in December 2003 provides ‘that the chief electoral officer
must, on payment of the prescribed fee, provide copies of the voters’
roll, or a segment thereof, which includes the addresses of voters, where
such addresses are available, to all registered political parties contesting
the elections.’ The Court held that the word ‘available’ in the subsection
obliged the Commission to record all objectively available or reasonably
available addresses in the voters’ roll.
In terms of section 190(1)(b) of the Constitution, there is an
overarching responsibility on the Commission to ensure that elections
are free and fair. The absence of addresses would not in and of itself
render the elections not free and fair.
 The majority in Mhlope254 held that section 16(3) of the Electoral Act
was prospective in operation and it obliged the Commission to include
a record of available addresses for future registration of voters in the
national common voters’ roll. Thus the Court held that the amendment
had to be given effect to from the date it was brought into effect and did
not have retrospective application. There was thus no obligation on the
Commission to obtain addresses of voters in respect of registrations that
occurred prior to the amendment in December 2003. The Court held
that it was within the competence of Parliament to decide on the date
from which this obligation would have to be discharged by
Commission. Once Parliament had made this determination, it was not
open to the courts to require the Commission to do more than what was
required by section 16(3) of the Electoral Act.
In Kham, the Constitutional Court ordered that segments of the
voters’ roll that applied to Tlokwe be cured of the defect of not having
addresses where available prior to the by-elections that were to be held
before the end of February 2016. It appeared that the Commission was
able to comply with this order in respect of the by-elections in Tlokwe.
The challenge that it faced was that it was unable to update the entire
common voters’ roll before the August 2016 local government elections.
The Commission had failed to record addresses when new voters were
registered after December 2003, as it had failed to appreciate the true
meaning of the section. However, it had started a programme to record
the addresses of voters, where available. This failure to compile a voters’
roll in accordance with the requirements of section 16(3) of the
Electoral Act meant that the Commission had failed to act in
accordance with the Electoral Act and with the rule of law. Although
this failure impinged on the principle of legality and posed a threat to
the fairness and freeness of the election, it did not mean that an election
held in terms of an electoral role that did not comply with section 16(3)
of the Electoral Act was not free and fair.
In terms of the Constitution, municipal councils are restricted to a
five-year tenure which, at the time of the judgment, ended in August
2016. Elections therefore had to be held and it was clear that it would be
impossible to update the common voters’ roll before the August 2016
elections as millions of addresses of voters who had registered would
have had to be obtained. Not holding local government elections on the
due date would have led to a constitutional crisis. The Court used
section 172(1)(b) of the Constitution, which allows it, after making a
finding of inconsistency to make any order that is just and equitable, to
get out this impasse. The majority decided that the invalidation of the
unlawful conduct of producing a common voters’ roll that was not in
compliance with section 16(3) of the Electoral Act should be suspended
for a period of 2 years to enable the August 2016 elections to proceed.
This would enable the Commission during the period of suspension to
capture the reasonably available addresses and thus the election
scheduled for 2019 would be in accordance with a legally compliant
common voters’ roll. However the Electoral Commission was required
to have a rectified voters’ roll with the addresses that were available for
the Thlokwe by-elections.

Can conflicting outcomes be just?

Was it jurisprudentially sound for the Constitutional
Court to set aside the Tlokwe by-elections because a
legally flawed voters’ roll was used, but subsequently
to permit the 2016 local government elections to be
held using a voters’ roll that had the same legal
defects as the roll that was used in the Tlokwe by-
elections? Alternatively, do you think that the ‘untidy’
outcome was compelled by the imperative of having to
hold the elections in 2016?

15.3.5 The right to vote

15.3.5.1 Introduction
Section 19(3) of the Constitution provides that ‘[e]very adult citizen has
the right – (a) to vote in elections for any legislative body established in
terms of the Constitution and to do so in secret; and (b) to stand for
public office and, if elected, to hold office’.
The Constitutional Court highlighted the significance of the right to
vote (and its intimate relationship with the value of human dignity that
permeates the Bill of Rights) in August. The Court held that ‘[t]he vote of
each and every citizen is a badge of dignity and of personhood. Quite
literally, it says that everybody counts’.255 The right to vote, therefore, is
symbolic of our citizenship and represents a practical manifestation of
how the Constitution recognises and protects the dignity of every
citizen. Given South Africa’s history in which the dignity of black South
Africans was systematically denied by the state – in part by denying
black South Africans the right to vote – this right and its protection is of
profound importance for every citizen. As O’Regan J stated in the New
National Party judgment:
The obligation to afford citizens the right to vote in regular, free and fair
elections is important not only because of the relative youth of our
constitutional democracy but also because of the emphatic denial of
democracy in the past. Many of the injustices of the past flowed directly from
the denial of the right to vote on the basis of race to the majority of South
Africans. The denial of the right to vote entrenched political power in the hands
of white South Africans.256

Apart from its symbolic role of affirming the dignity of all, the
Constitutional Court held in Richter v The Minister for Home Affairs and
Others that the right to vote is also a crucial working part of our
democracy:
Without voters who want to vote, who will take the trouble to register, and to
stand in queues, as millions patiently and unforgettably did in April 1994,
democracy itself will be imperilled. Each vote strengthens and invigorates our
democracy. In marking their ballots, citizens remind those elected that their
position is based on the will of the people and will remain subject to that will.
The moment of voting reminds us that both electors and the elected bear civic
responsibilities arising out of our democratic Constitution and its values.257

To put this differently, voting reminds us that those elected to govern

the country do so by invitation of the voters who lend their vote to a
specific political party for a maximum period of five years. After five
years, voters have a right to re-evaluate this choice. If they are unhappy
with how the political party of their choice has served them, they can
decide to lend their vote to another party again for a limited period of
no more than five years.
Section 1 of the Electoral Act defines a voter as a South African
citizen who is 18 years or older and whose name appears on the voters’
roll. As this definition indicates, a citizen who is 18 years or older may
vote only if his or her name appears on the voters’ roll.258
A citizen’s name will appear on the voters’ roll only if he or she has
registered to vote in terms of section 6 of the Electoral Act. In New
National Party, the Constitutional Court held that the requirement in
section 1 of the Constitution that voting must occur in terms of a
common voters’ roll means that registering to vote is an inherent
requirement for the exercise of the right to vote. The legislation that
requires registration and prevents unregistered voters from voting can
therefore not be classified as an infringement of the right to vote. It is a
requirement for exercising the right, not an infringement of it.259

Is the requirement of registration for

exercising the right to vote a limitation on the
right to vote?
Rautenbach and Malherbe have criticised the
approach adopted by the Constitutional Court in New
National Party. They argue that the requirement that
citizens must register before they can vote should not
be classified as an inherent part of the right to vote,
but rather as a limitation of the right to vote that needs
to be justified in terms of the limitation clause. This is
because the national voters’ roll could have been
compiled simply by transferring the names on the
population register to the national voters’ roll.260 This
argument assumes that only the names of those 18
years and older could be placed on such a voters’ roll.
 It also assumes that the population register is up to
date and accurate.
The opposite view is that while voting is a right, it
is not unreasonable to say that it imposes certain
duties on citizens in order to exercise this right. One of
these duties is to take the trouble to register to vote.
Voters who do not bother to register on the voters’ roll
may also be less concerned and informed about
politics and about issues of the day and would
arguably be far less likely to cast their votes.
Despite the fact that section 19(3) of the
Constitution provides that every adult citizen has the
right to vote, section 8 of the Electoral Act excludes
certain categories of adult citizens from voting by
providing that they may not be registered as voters.
Section 8 of the Act provides in this respect that:
The chief electoral officer may not register a person as a voter if
that person:
(a) has applied for registration fraudulently or otherwise than
in the prescribed manner;
(b) has been declared by the High Court to be of unsound
mind or mentally disordered;
(c) is detained under the Mental Health Act 18 of 1973; or
(d) is serving a sentence of imprisonment without the option of
a fine.261

These limitations are subject to the limitation clause as set out in

section 36(1) of the Constitution and the courts could be called on to
determine the constitutionality of these exclusions. Apart from the right
to vote, section 19(3) also provides that every citizen has the right to
vote in secret.262

15.3.5.2 Regulating the right to vote

Like all other rights guaranteed in the Bill of Rights, Parliament may
pass legislation that regulates the manner in which the right to vote may
be exercised. The Constitutional Court set out the test that must be used
to determine whether legislation that regulates the right to vote is
constitutionally valid in New National Party.
At issue in this case was the fact that before a citizen may register as
a voter, he or she has to fulfil the registration requirements set out in
section 6 of the Electoral Act. One of these requirements is that he or
she must be in possession of a green bar-coded identity document.263
This document replaced the old, much larger, blue identity document
which did not contain a bar code in 1986. In New National Party, a
majority of the Constitutional Court held that this requirement was
constitutionally valid because it was rationally related to a legitimate
governmental purpose. At the time when the case was brought, several
older voters (especially white voters) had not replaced the old blue
identity document with the new green document. According to statistics
accepted by the Court, approximately 80% of eligible voters had bar-
coded IDs, 10% had no IDs at all and 10% were in possession of valid
IDs that were not bar-coded. The 10% of eligible voters who were in
possession of valid IDs that were not bar-coded amounted to
approximately 2,5 million people.
In rejecting the argument that the requirement that a person could
only register if he or she were in possession of a green bar-coded
identity book was unconstitutional, the Court affirmed that Parliament
had the authority to determine the way in which voters must identify
themselves. It nevertheless stated that Parliament does not have a free
hand to do so. This is because the Constitution imposes important
limits on the manner in which Parliament may exercise its powers.
First, the method that Parliament adopts for voters to identify
themselves must not infringe the principle of the rule of law.264 This will
be the case if the measures are not rationally related to a legitimate
governmental objective. This is because arbitrariness is inconsistent
with the rule of law which is a core value of the Constitution.265 The
majority held that requiring the bar-coded identity book for voter
registration was rational because:
[t]he bar-code on the document facilitates quick, easy and reliable verification
of the fact that the name of the person has been entered on the population
 register. In addition, it is much easier for officers charged with the verification
of the necessary particulars at the point of registration and voting to perform
this task if they are to do so consistently by reference to a single type of identity
document. Recognition of a multiplicity of documents for this purpose could
be potentially confusing, give rise to error and slow down the process.266

Second, the measures must not unjustifiably infringe the right to vote
guaranteed in section 19(3) of the Constitution.267 In this regard, the
Court held that the method Parliament adopts for voters to identify
themselves will infringe the right to vote if, at the time the method was
adopted by Parliament, an eligible voter who wanted to vote would not
be able to do so even though he or she took reasonable steps in pursuit
of his or her right to vote. This is because any method which was not
sufficiently flexible to be reasonably capable of achieving the goal of
ensuring that people who wanted to vote would be able to do so if they
acted reasonably in pursuit of the right, had the potential to infringe the
right.268 Given this test, the majority found that the bar-coded ID
requirement did not infringe the right to vote. This is because even
though the Electoral Act had been promulgated only nine months
before the general election, there was no evidence to show that at the
time Parliament passed the Electoral Act the Department of Home
Affairs would be unable to issue a bar-coded ID to any eligible voter
who applied for one before the voter registration process closed. Any
eligible voter who took reasonable steps to obtain a bar-coded ID and to
register as a voter, therefore, would be able to vote.269

Was the rationality standard used by the

majority in the New National Party case
correct?
In her minority judgment in the New National Party
case, O’Regan J disagreed with the application of a
rationality standard to this issue. Given the role played
by voting in determining who should exercise political
power, the right to vote is ‘worthy of particular scrutiny
 by a court to ensure that fair participation in the
political process is afforded’.270 According to O’Regan
J, the majority’s approach would be appropriate in
relation to determining whether legislation giving rise to
differential treatment is constitutional, but it would be:
far too deferential a standard for determining whether legislation
enacted by Parliament to enable citizens to exercise their right to
vote gives rise to an infringement of the right to vote.

In my view, it is quite appropriate to require Parliament to act

reasonably. The right to vote is foundational to a democratic
system. Without it, there can be no democracy at all. What is
more, the right cannot be exercised in the absence of a legislative
framework. That framework should seek to enhance democracy
not limit it. To do so, it needs to draw all citizens into the political
process. Regulation, which falls short of prohibiting voting by a
specified class of voters, but which, nevertheless, has the effect
of limiting the number of eligible voters needs to be in reasonable
pursuance of an appropriate government purpose. For a court to
require such a level of justification, is not to trample on the
terrain of Parliament, but to provide protection for a right which is
fundamental to democracy and which cannot be exercised at all
unless Parliament enacts an appropriate legislative framework.271

The difference between the majority judgment and the

minority judgment is therefore quite stark. The majority
used a rationality standard and hence found that the
impugned provisions requiring bar-coded identity
books to register to vote was in compliance with the
right to vote. O’Regan J in her minority decision, using
a reasonableness standard, held the very opposite.
Given South Africa’s history, in which the vast majority
of citizens were denied the right to vote, it is surprising
that the majority employed the rationality standard,
which is easy to meet, rather than the more searching
standard of reasonableness which O’Regan J
supported.

15.3.5.3 Exclusions from the right to vote

15.3.5.3.1 Introduction
Besides regulating the right to vote, Parliament has also excluded
certain categories of citizens from the right to vote. Among these are
prisoners and citizens living abroad. The Constitutional Court has
considered the constitutional validity of these exclusions in a number of
cases.272

15.3.5.3.2 Prisoners
Apart from August, which is discussed above, the Constitutional Court
considered the exclusion of prisoners from the right to vote in Minister
of Home Affairs v National Institute for Crime Prevention and the Re-
integration of Offenders (NICRO) and Others.273 Unlike in August, this
case dealt with a legislative provision purporting to limit the rights of
prisoners to vote.274 The provisions effectively disenfranchised
convicted prisoners serving sentences of imprisonment without the
option of a fine by prohibiting them from registering as voters and from
voting while in prison.275 Unsentenced prisoners and prisoners
incarcerated because of their failure to pay their fines retained the right
to register and vote.
After the provisions of the Electoral Laws Amendment Act276 came
into operation, the respondents applied for an order declaring them to
be unconstitutional and invalid on the grounds that they unjustifiably
infringed the right to vote. A majority of the Constitutional Court agreed
with the respondents and granted the order.
The Court accepted (and this was conceded by all parties) that these
provisions, which prevented most prisoners from voting, infringed on
their right to vote which is guaranteed in section 19(3)(a) of the
Constitution. The only question was whether such a limitation of the
right was justifiable in terms of the limitation clause or not. The majority
of the court held that the limitation was not justifiable and hence was
unconstitutional.277
The Court rejected the argument that special arrangements would
have to be made for the prisoners in question to vote and that these
special arrangements could put the integrity of the voting process at
risk. Special measures, therefore, would have to be put in place and this
would put a strain on the Electoral Commission’s financial and
logistical resources. The factual basis for this justification had not been
established. The Electoral Commission had made arrangements for
registering unsentenced prisoners and prisoners incarcerated because
of their failure to pay their fines. There was nothing to suggest that
extending these arrangements to include convicted prisoners serving
sentences of imprisonment without the option of a fine would place an
undue burden on the Electoral Commission’s financial and logistical
resources. Apart from saying that it would be costly to do so, the
Minister provided no information about the logistical problems or
estimates of the costs involved.278
The Court also grappled with the argument advanced by the
government that it was important for the government to denounce
crime and to communicate to the public that the rights that citizens
have, such as the right to vote, are related to fulfilling their duties and
obligations as citizens. The Court pointed out that a majority of the
Canadian Supreme Court had rejected a similar argument in Sauve v
Canada (Chief Electoral Officer) 279 despite the fact that the Canadian
government had presented a great deal of evidence to justify the law in
question.280 Unlike the Canadian government, the Court held further,
the Minister had presented almost no evidence to justify the Electoral
Laws Amendment Act other than simply saying that the ‘government
did not want to be seen to be soft on crime and that it would be unfair to
others who cannot vote to allow prisoners to vote’.281 These statements,
the Court went on to conclude, could not hope to justify the Electoral
Laws Amendment Act which applied to both serious and relatively
minor crimes and even to prisoners whose convictions and sentences
were still under appeal.282

Why the government lost the NICRO case

The NICRO case must be understood with reference to
the discussion on the limitation clause enquiry in
chapter 10. The government lost the case because it
failed to provide evidence to justify its legislative
 choices. It did not put any evidence before the
Constitutional Court as to why the particular category
of prisoners (all convicted prisoners serving sentences
of imprisonment without the option of a fine) had to be
distinguished from other categories of prisoners and
why it was important to disenfranchise them. If the law
had only disenfranchised prisoners convicted of the
most serious crimes and if the government had
provided evidence on how the legislation effectively
targeted the most dangerous and morally
reprehensible criminals, the limited
disenfranchisement might have been found to be
justifiable.

15.3.5.3.3 Citizens working abroad

It is widely believed that a sizeable number of South African citizens live
abroad although exact figures are not available. Legislation did not
provide for citizens living abroad (who have not emigrated and thus
remain citizens of the country) to vote in South African elections.
In 2009, the Constitutional Court declared invalid the legal
provisions which excluded South Africans living abroad from voting in
Richter v Minister of Home Affairs and Others. The applicant was a South
African citizen who was a registered voter and who was working in the
United Kingdom as a teacher. Although he wanted to vote in the 2009
general elections, he was unable to do so because section 33(1)(e) of the
Electoral Act only made provision for South Africans who were
temporarily absent from the Republic for business, holiday, educational
and sporting purposes to cast special votes. It made no provision for
South Africans who were absent for employment or other purposes to
cast special votes.
The Constitutional Court affirmed that the right to vote also imposes
burdens on citizens. First, they have to register in good time. Then, on
polling day, they may have to journey some distance to a voting station.
They have to be in possession of a bar-coded identity document and
they may have to stand in a long queue to vote.283 To determine whether
the burdens placed on a voter who wishes to exercise his or her right to
vote are inconsistent with the Constitution, the Court held further, it
must apply the test adopted in New National Party. This test provides
that a statutory provision will infringe the right to vote if it prevents an
eligible voter who wishes to vote and who has taken reasonable steps in
pursuit of the right to vote from voting.284 Note that reasonableness here
does not relate to the test developed by O’Regan J for the minority in
New National Party. That test asked whether Parliament had acted
reasonably. In this case, the Court asked whether arrangements to vote
would have made it impossible for a voter who had acted reasonably to
exercise his or her vote.
The Court noted that apart from travelling back to South Africa from
the United Kingdom to be present on polling day, there were no steps
that the applicant in the position of Mr Richter could take to vote in the
2009 general elections. Requiring the applicant and other citizens in his
position to travel thousands of kilometres across the globe to be in their
voting districts on voting day, the Court held further, was not
reasonable. This was especially so in light of the fact that section 33(1)
(b) of the Electoral Act provided that those citizens who were working
abroad on government service did not have to return home to vote but
could vote at South African embassies, high commissions and
consulates.285
In addition, the Court went on to hold, it was important to note that
we live in a global economy and that more and more South Africans are
working abroad. The fact that these citizens want to exercise their civic
responsibilities and vote should be encouraged.286
After finding that section 33(1)(e) of the Electoral Act infringed the
right to vote, the Court turned to consider whether this infringement
satisfied the requirements of the limitation clause. The Court held that it
did not. In arriving at this decision, the Court began by pointing out that
in terms of section 33(1)(b) those citizens who are working abroad for
the government on voting day are permitted to vote while they are
abroad.287 In addition, the Court pointed out further, many other open
and democratic societies allow citizens who are abroad on voting day to
vote while they are abroad.288 Finally, the Minister was unable to point
to any legitimate governmental purpose that would be served by
preventing citizens who are abroad from voting.289

15.3.6 The right to stand for and hold office

Section 19(3) of the Constitution confers on every adult citizen the right
(a) ‘to vote in elections for any legislative body established in terms of
the Constitution, and to do so in secret’; and (b) ‘to stand for public
office and, if elected, to hold office’. The scope and ambit of the right to
stand for public office was considered by the Constitutional Court in
New Nation Movement NPC and Others v President of the Republic of
South Africa and Others.
In this case, the Court had to determine whether section 57A read
together with Schedule 1A of the Electoral Act infringed section 19(3)(b)
of the Constitution. These provisions of the Electoral Act provided that
elections for the National Assembly and provincial legislatures must be
conducted in terms of a party proportional representation electoral
system and this electoral system provided, in turn, that adult citizens
could stand for public office only as members of a political party and
not as independent candidates. In other words, it did not permit adult
citizens to stand for public office as independent candidates.
In order to determine whether this failure to permit adult citizens to
stand for public office as independent candidates unjustifiably
infringed section 19(3)(b) of the Constitution, the Court first had to
determine the content and scope of the section. In this respect, the
applicants argued that section 19(3)(b) should be interpreted broadly as
a right to stand for public office either as a member of a political party
or as an independent candidate, while the respondents argued that it
should be interpreted narrowly as a right to stand for public office only
as a member of a political party.290 A majority of the Court agreed with
the applicants that section 19(3)(b) should be interpreted broadly.291
The Court thus found that the failure to permit adult citizens to stand
for public office as independent candidates unjustifiably infringed
section 19(3)(b) and was unconstitutional.292
 In arriving at its decision to adopt a broad interpretation of section
19(3)(b), the Court relied heavily on two other constitutional rights,
namely the right to freely make political choices guaranteed in section
19(1) of the Constitution293 and the right to freedom of association
guaranteed in section 18.294
In so far as section 19(1) of the Constitution was concerned, the
Court held that a distinction must be drawn between the general right
to make political choices in section 19(1) and the specific rights to form
a political party; to participate in the activities of, or recruit members
for, a political party; and to campaign for a political party in paragraphs
(a), (b) and (c) of section 19(1). Although these specific rights all relate
to political parties, the Court held, the general right goes further and
includes other rights, such as the right not to form or join a political
party.295 An important consequence of this interpretation of section
19(1), is that it conflicts with the narrow interpretation of section 19(3)
(b), which compels adult citizens to form or join a political party if they
want to stand for public office. Given that different sections of the
Constitution must be interpreted harmoniously where this is
reasonably possible,296 the Court concluded, it follows that the narrow
interpretation of section 19(3)(b) must be rejected and the broad
interpretation adopted.297
In so far as section 18 of the Constitution was concerned, the Court
held that apart from conferring a positive right on every individual to
form associations,298 the courts in other comparable jurisdictions have
held that the right to freedom of association also implicitly confers a
negative right on every individual not to associate. This negative right is
important because it defends individuals from being compelled to
associate against their will and thus protects the very substance of the
right to freedom of association.299 Besides these reasons, the Court held
further, there are a number of other reasons for protecting the right not
to associate, especially when it comes to political parties. One of these is
that membership of a political party usually comes with obligations and
responsibilities that some individuals may find unacceptable. It may,
for example, restrict those who are free spirited, censor those who do
not want to be bound by predetermined party positions or detract from
a person’s idea of freedom.300 Being coerced to form or join a political
party also infringed the rights to freedom of conscience301 and dignity.302
An important consequence of interpreting section 18 to include a
negative right not to associate, the Court then held, is that it conflicts
with the narrow interpretation of section 19(3)(b), which compels adult
citizens to associate by forming or joining political parties if they want
to stand for public office. Given that different sections of the
Constitution must be interpreted harmoniously where this is
reasonably possible, the Court concluded once again, it follows that the
narrow interpretation of section 19(3)(b) must be rejected.303
Despite the fact that the narrow interpretation of section 19(3)(b) of
the Constitution conflicted with the right not to join a political party in
section 19(1) and the right not to be compelled to associate in section
18, the respondents argued that it should nevertheless be adopted by
the Court because section 157(2)(a) of the Constitution expressly
provides that national legislation may prescribe an electoral system that
compels adult citizens to stand for election to municipal councils as
members of political parties and not as independent candidates. Given
that section 157(2)(a) expressly authorises the adoption of an electoral
system that does not permit adult citizens to stand for public office as
independent candidates, it conflicts with the broad interpretation of
section 19(3)(b) which does allow adult citizens to stand as
independent candidates. In order to avoid this conflict, therefore, the
broad interpretation should be rejected and the narrow interpretation
adopted.304 While it is true that section 157(2)(a) does conflict with the
broad interpretation of section 19(3)(b), the Court held, it is possible to
resolve this conflict, not by rejecting the broad interpretation, but rather
by classifying section 157(2)(a) as an internal modifier which limits the
content and scope of the right to stand for public office in very narrow
circumstances, namely elections for municipal councils. There is,
consequently, no conflict between section 157(2)(a) and the broad
interpretation of section 19(3)(b) as it applies to elections for the
National Assembly and provincial legislatures.305
Having found that section 57A read together with Schedule 1A of the
Electoral Act did infringe section 19(3)(b), the Court turned to consider
whether this infringement could be justified in terms of the general
limitation clause. The Court found that it could and thus declared the
Electoral Act to be unconstitutional and invalid to the extent that it
prevented adult citizens from standing for election to the National
Assembly or provincial legislatures as independent candidates.306
Despite declaring the Electoral Act to be unconstitutional and invalid,
the Court suspended its declaration of invalidity for a period of 24
months to afford Parliament a proper opportunity to remedy the defects
in the Act.307 At the time of writing, this process had not been
completed.

SUMMARY

Given that the majority of South Africa’s citizens were denied political
rights prior to 1994, it is not surprising that section 19 of the
Constitution protects a wide range of political rights. Among these are
the right to make political choices; the right to free, fair and regular
elections and the right to vote in secret and to stand for public office.
These rights are important not only because they are aimed at
preventing the wholesale denial of political rights from ever taking place
again, but also because they are aimed at giving effect to the system of
representative democracy enshrined in the Constitution.
In so far as the rights guaranteed in section 19 of the Constitution
are concerned, however, it is important to note that, unlike most of the
other rights set out in the Bill of Rights, these rights are available only to
citizens. The Constitution, therefore, distinguishes between citizens
who are the bearers of political rights and ‘everyone’ else, including, for
example, foreign nationals, who are not entitled to participate in the
exercise of political rights. While foreign nationals enjoy almost all of
the other rights contained in the Bill of Rights, only citizens can invoke
the political rights set out in section 19.
The political rights protected in section 19 of the Constitution must
be read together with the right to freedom of expression guaranteed in
section 16 and the right to freedom of assembly, demonstration, picket
and petition guaranteed in section 18. This is because democracy
entails more than simply being able to vote. It must also give people an
opportunity to form their own views and to express them by coming
together and protesting peacefully. This allows people whose influence
on political parties would otherwise be minimal to raise issues that are
important to them, to draw attention to these issues and to engage with
their fellow citizens and representatives about these issues.
Apart from participation in the political process, the rights to
freedom of expression and assembly, demonstration, picket and
petition also promote a number of other goals. The right to freedom of
expression, for example, recognises and protects the moral agency of
individuals in our society and facilitates the search for truth. The right to
freedom of assembly, demonstration, picket and petition promotes the
development of each individual’s unique personality. This is because
our personalities do not develop in isolation, but rather in the context of
groups. Cultural, education and religious assemblies may, therefore, be
as important as political assemblies.
Finally, it is important to note that both of these rights have internal
modifiers. The right to freedom of expression, therefore, does not
include the right to promote war, incite imminent violence or advocate
hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm. The right to freedom of assembly,
demonstration, picket and petition does not include the right to
assemble, demonstrate, picket or petition in a violent or armed manner.
Although these sorts of activities are not prohibited by the Constitution,
they are also not protected by the Constitution. This means that they
may be prohibited by legislation. PEPUDA thus prohibits hate speech
and the Regulation of Gatherings Act prohibits armed and violent
assemblies, demonstrations and pickets.

1 Act 74 of 1982.
2 See S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 28; Islamic Unity Convention v Independent Broadcasting
Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) (CC); BCLR 433
(CC) (11 April 2002) para 25.
3 Act 74 of 1982.
4 Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94) [1995]
ZACC 12; 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC) (29 November 1995) para 26.
5 Islamic Unity Convention para 30.
6 Islamic Unity Convention para 30.
 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7;
7 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC) (26 May 1999) para 8.
8 See Shabalala; South African National Defence Union; Islamic Unity Convention;
Mamabolo.
9 South African National Defence Union para 8.
10 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC) (26 May 1999)
para 7.
11 (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001)
para 37.
12 Mamabolo para 37.
13 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety
and Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996
(5) BCLR 608 (CC) (9 May 1996) para 26.
14 Herman, ES and Chomsky, N (1988) Manufacturing Consent: The Political Economy of the
Mass Media 306.
15 Herman and Chomsky (1988) 306.
16 De Vos, P (2017) Rejecting the free marketplace of ideas: a value-based conception of the
limits of free speech South African Journal on Human Rights 33(3):359–79 at 368.
17 Case para 26.
18 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) (14 June 2002)
para 18.
19 (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2009 (1) SA 141 (CC); 2009 (3) BCLR 309 (CC) (31
July 2008) para 52. See also Mthembi-Mahanyele v Mail & Guardian Ltd and Another
(054/2003) [2004] ZASCA 67; [2004] 3 All SA 511 (SCA) (2 August 2004) para 41.
20 The First Amendment reads as follows: ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.’
21 Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others (EQ02/2018)
[2019] ZAEQC 2; [2019] 4 All SA 237 (EqC); 2019 (10) BCLR 1245 (EqC); 2019 (6) SA 327 (GJ)
(21 August 2019).
22 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC) (11 March 2003).
23 Phillips para 15.
24 Islamic United Convention paras 28–9.
25 Hamata and Another v Chairman, Peninsula Technikon Internal Disciplinary Committee
and Others 2000 (4) SA 621 (C) para 32.
26 Islamic Unity Convention para 27.
27 Islamic Unity Convention para 28.
28 Islamic Unity Convention para 31.
29 (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005)
para 47.
30 See De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others
(CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003) para 48.
31 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
32 Act 65 of 1996.
33 De Reuck paras 46–7.
34 De Reuck para 48.
35 De Reuck para 48.
36 De Reuck para 59.
37 De Reuck para 64–5.
38 De Reuck paras 71–9.
39 Lucas, M (2006) On gay porn Yale Journal of Law and Feminism 18(1):299–302 at 299.
40 Lucas (2006) 299. See also Sherman, JG (1995) Love speech: The social utility of
pornography Stanford Law Review 47(4):661–706 at 702–3, where he argues that ‘gay male
pornography is a necessary tool in gay men’s struggle to attain sexual integrity’, and asserts
that ‘[t]he relative importance of pornography in the gay male imagination results from the
suppression of other forms of gay expression: not only artistic expression but lived
interpersonal expression’.
41 Khumalo paras 22–4; South African Broadcasting Corporation Limited v National Director
of Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007
(2) BCLR 167 (CC); (21 September 2006) para 24; Print Media South Africa and Another v
Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC);
2012 (12) BCLR 1346 (CC) (28 September 2012) para 54.
42 Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995
(2) SA 221 (T) 227H–228A.
43 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) (14 June 2002).
44 Khumalo para 24.
45 ‘Sanef calls for action over reporters being prevented from doing job in Cape Town’ (2020, 3
March) IOL, accessed on 6 April 2020 at https://www.iol.co.za/capetimes/news/sanef-
calls-for-action-over-reporters-being-prevented-from-doing-job-in-cape-town-43995492.
46 See Holomisa v Argus Newspaper 1996 (2) SA 588 (W) 855–56; Midi Television (Pty) Ltd v
Director of Public Prosecutions (Western Cape) (100/06) [2007] ZASCA 56; [2007] 3 All SA
318 (SCA); 2007 (9) BCLR 958 (SCA) (18 May 2007) para 6; South African Broadcasting
Corporation para 42; Johncom Media Investments Limited v M and Others (CCT 08/08)
[2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 28.
47 Moseneke, D (2015, May 15) The Media, Courts and Technology: Remarks on the Media
Coverage of the Oscar Pistorius Trial and Open Justice Constitutionally Speaking available
at https://constitutionallyspeaking.co.za/dcj-dikgang-moseneke-the-media-courts-and-
technology-remarks-on-the-media-coverage-of-the-oscar-pistorius-trial-and-open-
justice/.
48 Moseneke (2015).
49 (435/06) [2006] ZASCA 90; [2006] SCA 89 (RSA); [2007] 1 All SA 384 (SCA) (24 August 2006).
50 SABC paras 14 and 15.
51 SABC para 20
52 SABC para 25.
53 SABC para 27.
54 SABC para 28.
55 South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and
Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); (21
September 2006).
56 SABC para 41.
57 SABC para 55.
58 (10193/2014) [2014] ZAGPPHC 37; [2014] 2 All SA 446 (GP); 2014 (1) SACR 589 (GP) (25
February 2014).
59 Pistorius para 18.
60 Pistorius para 19.
61 Pistorius paras 19 and 20.
62 Pistorius para 21.
63 Pistorius paras 25–26 and 30.
64 Van Breda para 58.
65 Van Breda para 59.
66 Van Breda para 60.
67 Van Breda para 61.
68 SABC para 20.
69 Van Breda para 63.
70 Van Breda para 64.
71 Van Breda paras 65–8.
72 Van Breda para 70.
73 Van Breda para 72.
74 Van Breda para 73.
75 Van Breda para 74.
76 (CCT261/18); [2019] ZACC 46; 2020 (3) BCLR 245 (CC); 2020 (1) SACR 469 (CC) (4
December 2019).
77 Act 51 of 1977.
78 Centre for Child Law paras 29–35.
79 Centre for Child Law paras 37–43.
80 Centre for Child Law paras 44–50.
81 Centre for Child Law para 54.
82 Centre for Child Law paras 55–8.
83 Centre for Child Law para 68.
84 Centre for Child Law para 69.
85 Centre for Child Law para 70.
86 Centre for Child Law paras 91–113.
87 Centre for Child Law paras 96–100.
88 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009).
89 Act 70 of 1979.
90 Johncom Media Investments para 23.
91 Johncom Media Investments para 29.
92 Johncom Media Investments para 30.
93 Johncom Media Investments para 42.
94 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)
para 39.
95 Independent Newspapers paras 40–1.
96 Independent Newspapers para 43.
97 Independent Newspapers para 44.
98 Independent Newspapers para 45.
99 (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28
September 2012).
100 Print Media South Africa para 20.
101 Print Media South Africa para 27.
102 Print Media South Africa para 17.
103 Print Media South Africa para 60.
104 Print Media South Africa para 98.
105 Print Media South Africa para 55.
106 Print Media South Africa para 56.
107 ICASA was created by the Independent Communications Authority of South Africa Act 13
of 2000. For a discussion on the role of the regulation of the public broadcaster, see
Tomaselli, KG (2008) Exogenous and endogenous democracy: South African politics and
media International Journal of Press/Politics 13(2):171–80 at 171.
108 There are therefore similarities between the regulation of electronic broadcasters and that
of the print media although different bodies deal with complaints relating to these
categories of the media in terms of different Codes.
109 Islamic United Convention para 10.
110 Afri-Forum and Another v Malema and Others (20968/2010) [2011] ZAEQC 2; 2011 (6) SA
240 (EqC); [2011] 4 All SA 293 (EqC); 2011 (12) BCLR 1289 (EqC) (12 September 2011) para
29, citing Braun, S (2004) Democracy Off Balance: Freedom of Expression and Hate
Propaganda Law in Canada 62.
111 South African Human Rights Commission v Qwelane and Another (EQ44/2009; EQ13/2012)
[2017] ZAGPJHC 218; [2017] 4 All SA 234 (GJ); 2018 (2) SA 149 (GJ) (18 August 2017).
112 Webb, TJ (2010) Verbal poison-criminalizing hate speech: A comparative analysis and a
proposal for the American system Washburn LJ 50:445 at 445.
113 Act 4 of 2000.
114 The SCA got this wrong in the case of Masuku and Another v South African Human Rights
Commission obo South African Jewish Board of Deputies (1062/2017) [2018] ZASCA 180;
2019 (2) SA 194 (SCA); [2019] 1 All SA 608 (SCA) (4 December 2018) para 13. The Court
ignored the applicable law contained in the PEPUDA and wrongly dealt with the case as if s
16(2) is the applicable provision that prohibits speech. The SCA explained its approach by
claiming that the respondents had disavowed reliance on the PEPUDA and had accepted
‘that the statements, as any other form of speech, would be excluded from protection (as
hate speech) under s 16(1) of the Constitution only if they fell afoul of s 16(2) thereof’.
115 Qwelane para 68.
116 Qwelane para 67.
117 See De Vos, P (2010) On ‘Shoot the Boer’, hate speech and the banning of struggle songs 11.
118 (686/2018) [2019] ZASCA 167; [2020] 1 All SA 325 (SCA); 2020 (2) SA 124 (SCA); 2020 (3)
BCLR 334 (SCA) (29 November 2019) para 66 (Qwelane SCA).
119 Qwelane SCA para 66.
120 Qwelane SCA para 75.
121 South African Human Rights Commission v Velaphi Khumalo (EQ6-2016; EQ1-2018) [2018]
ZAGPJHC 528; 2019 (1) SA 289 (GJ); [2019] 1 All SA 254 (GJ) (5 October 2018) para 82.
122 Khumalo para 88.
123 (686/2018) [2019] ZASCA 167; [2020] 1 All SA 325 (SCA); 2020 (2) SA 124 (SCA); 2020 (3)
BCLR 334 (SCA) (29 November 2019).
124 Qwelane SCA para 64.
125 Qwelane SCA para 68.
126 Qwelane SCA para 45.
127 Qwelane SCA para 69.
128 Qwelane SCA para 88.
129 Qwelane SCA para 70.
130 (EQ02/2018) [2019] ZAEQC 2; [2019] 4 All SA 237 (EqC); 2019 (10) BCLR 1245 (EqC); 2019
(6) SA 327 (GJ) (21 August 2019).
131 Nelson Mandela Foundation Trust para 45.
132 Nelson Mandela Foundation Trust para 77–8.
133 Nelson Mandela Foundation Trust para 163.
134 Nelson Mandela Foundation Trust para 176.
135 Qwelane para 96.
136 Smuts, D and Westcott, S (eds) (1999) The Purple Shall Govern: A South African A to Z of
Nonviolent Action.
137 See Berger, JM (2001) Litigation strategies to gain access to treatment for HIV/AIDS: The
case of South Africa’s Treatment Action Campaign Wisconsin International Law Journal
20:595–614 at 596; Berger, JM and Kapczynski, A ‘The story of the TAC case: The potential
and limits of socio-economic rights litigation in South Africa’ in Hurwitz, DR and
Satterthwaite, ML (eds) (2009) Human Rights Advocacy Stories.
138 Berger and Kapczynski (2009) 4.
139 (CCT 112/11) [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (13 June 2012)
para 61.
140 Woolman, S ‘Assembly, demonstration and petition’ in Currie, I and De Waal, J (2013) The
Bill of Rights Handbook 6th ed 377.
141 South African Transport and Allied Workers Union and Another v Garvas and Others (CCT
112/11) [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (13 June 2012) para
61.
142 De Vos, P (2018) The constitutional limits of disruptive protest: the case of student protest
in South Africa Journal for Human Rights/Zeitschrift für Menschenrechte 51(4):64–86
143 Garvas para 52.
144 Garvas para 52.
145 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC) (26 May 1999).
146 South African National Defence Union para 8.
147 See for example Garvas para 63; Print Media South Africa and Another v Minister of Home
Affairs and Another (CCT 113/11); [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR
1346 (CC) para 54; Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC);
2002 (8) BCLR 771 (CC) para 24; and South African National Defence Union para 8.
148 BVerfGE 73, 206.
149 BVerfGE 73, 206 at 360.
150 BVerfGE 73, 206 at 361.
151 Rautenbach, IM and Malherbe, EFJ (2012) Constitutional Law 6th ed 376.
152 Rautenbach and Malherbe (2012) 376.
153 Act 205 of 1993.
154 S 1(v) of the Regulation of Gatherings Act.
155 S 1(vi) of the Regulation of Gatherings Act.
156 Woolman (2013) 386.
157 Growthpoint Properties Ltd v South African Commercial, Catering and Allied Workers
Union (SACAWU) and Others (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD);
[2011] 1 All SA 537 (KZD); (2010) 31 ILJ 2539 (KZD) (3 September 2010).
158 Act 66 of 1995.
159 S 69(3) of the LRA.
160 (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537 (KZD);
(2010) 31 ILJ 2539 (KZD) (3 September 2010).
161 Growthpoint Properties para 46.
162 Growthpoint Properties paras 47–8.
163 Growthpoint Properties para 57.
164 Growthpoint Properties para 58.
165 Growthpoint Properties para 59.
166 Growthpoint Properties para 60.
167 Growthpoint Properties para 61.
168 Rautenbach and Malherbe (2012) 377.
169 See Free State Petitions Act 2 of 2008; Gauteng Petitions Act 5 of 2002; KwaZulu-Natal
Petitions Act 4 of 2003; Limpopo Petitions Act 4 of 2003; Mpumalanga Petitions Act 6 of
2000; Northern Cape Petitions Act 8 of 2009; North West Petitions Act 2 of 2010.
170 Act 17 of 1956.
171 Act 74 of 1982.
172 For a comprehensive discussion of the operation of the Regulation of Gatherings Act, see
Currie and De Waal (2013) 381–3.
173 S 9(2)(e) of the Gatherings Act. See also Memeza, M (2006) A critical review of the
implementation of the Regulation of Gatherings Act 205 of 1993: A local government and
civil society perspective available at http://www.fxi.org.za.
174 De Vos, P (2009) Freedom of assembly and its limits Constitutional Court: Without
Prejudice 9(8):4–5.
175 S 3(5)(c) of the Gatherings Act.
176 S 4(1) of the Gatherings Act.
177 S 4(4)(b) of the Gatherings Act.
178 S 4(4)(c) of the Gatherings Act.
179 (CCT32/18) [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) (19 November
2018).
180 Mlungwana para 43.
181 Mlungwana para 47.
182 (CCT 112/11) [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (13 June 2012).
183 Mhlungwana paras 62 and 63.
184 Mhlungwana para 80.
185 Mhlungwana para 93.
186 Mhlungwana para 101.
187 Duncan, J & Royeppen, A (2013) Inside Rustenberg’s banned protests, accessed 26 May
2020 at https://www.dailymaverick.co.za/article/2013-03-07-inside-rustenbergs-banned-
protests/.
188 Duncan & Royeppen (2013).
189 S 11(1).
190 (CCT 112/11) [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (13 June 2012).
191 SATAWU para 37.
192 SATAWU para 38.
193 SATAWU para 39.
194 SATAWU para 43.
195 SATAWU paras 4–5.
196 SATAWU paras 51–9.
197 SATAWU paras 34 and 94.
198 New National Party v Government of the Republic of South Africa and Others (CCT9/99)
[1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (13 April 1999) para 10;
Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of
Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5)
BCLR 445 (CC) (3 March 2004) para 47; Ramakatsa and Others v Magashule and Others
(CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64; New
Nation Movement NPC and Others v President of the Republic of South Africa and Others
(CCT 110/19) [2020] ZACC 11; 2020 (8) BCLR 950 (CC) (11 June 2020) paras 106–108.
199 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
200 Ramakatsa para 65.
201 In Richter v The Minister for Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC
3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12 March 2009) and AParty and Another v
The Minister for Home Affairs and Others, Moloko and Others v The Minister for Home
Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6)
BCLR 611 (CC) (12 March 2009), the Constitutional Court was called on to determine the
voting rights of non-resident citizens.
202 Rautenbach and Malherbe (2012) 382.
203 Ramakatsa para 71. S 197(3) of the Constitution provides that no employee of the public
service may be favoured or prejudiced because he or she supports a particular political
party or cause.
204 Ramakatsa para 71.
205 Ramakatsa para 72.
206 New Nation Movement NPC and Others v President of the Republic of South Africa and
Others (CCT 110/19) [2020] ZACC 11; 2020 (8) BCLR 950 (CC) (11 June 2020).
207 New Nation Movement para 17.
208 Ramakatsa para 73.
209 ANC National Disciplinary Committee (2012, 29 February) Luthuli House, Johannesburg:
Public Announcement on the Disciplinary Hearing of Floyd Shivambu, Sindiso Magaqa
and Julius Malema available at https://www.sahistory.org.za/archive/anc-national-
disciplinary-committee-29-february-2012-luthuli-house-johannesburg.
210 There are several references to political parties in the Constitution. For example, s 47(3)(c)
states that a member of the NA who ‘ceases to be a member of the party that nominated
that person as a member of the Assembly’ will lose his or her membership of the Assembly.
 S 57(2)(b) similarly allows minority parties to participate in the proceedings of the NA in a
manner consistent with democracy.
211 Dube and Others v Zikalala and Others (7904/2016P) [2017] ZAKZPHC 36; [2017] 4 All SA
365 (KZP) (12 September 2017).
212 Dube para 34.
213 Dube para 129.
214 Act 73 of 1998.
215 Act 51 of 1996.
216 Ss 15, 16 and 17 of the Electoral Commission Act as well as ss 26–31 of the Electoral Act.
217 Ss 26(b) and 27 of the Electoral Act.
218 S 99 of the Electoral Act.
219 Liberal Party v The Electoral Commission and Others (CCT 10/04) [2004] ZACC 1; 2004 (8)
BCLR 810 (CC) (5 April 2004).
220 (CCT 10/06) [2006] ZACC 1; 2006(3) SA 305 (CC); 2006(5) BCLR 579 (CC) (24 February
2006) para 31.
221 Act 27 of 2000.
222 African Christian Democratic Party para 27.
223 African Christian Democratic Party para 21.
224 African Christian Democratic Party para 33.
225 Act 103 of 1997.
226 Lowry, MP (2008) Legitimizing elections through the regulation of campaign financing: A
comparative constitutional analysis and hope for South Africa Boston College International
and Comparative Law Review 31(2):185–212 at 185.
227 Steytler, N ‘The legislative framework governing party funding in South Africa’ in Matlosa, K
(2004) The Politics of State Resources: Party Funding in South Africa 59 and 64. For a
discussion regarding the funding of political parties, see generally Tshitereke, C (2002)
Securing democracy: Party finance and party donations – the South African challenge
Institute for Security Studies 63:1–12.
228 My Vote Counts NPC v Minister of Justice and Correctional Services and Others (CCT249/17)
[2018] ZACC 17; 2018 (5) SA 380 (CC); 2018 (8) BCLR 803 (CC) (21 June 2018).
229 424 U.S. 1 (1976) para 66.
230 My Vote Counts para 33.
231 My Vote Counts para 36.
232 My Vote Counts para 48.
233 My Vote Counts para 68.
234 My Vote Counts para 72.
235 My Vote Counts para 95.
236 Act 6 of 2018.
237 S 3 of the Political Party Funding Act.
238 S 8 of the Political Party Funding Act.
239 De Vos, P (2019, 12 February) Political Party Funding Act should be brought into operation
forthwith Constitutionally Speaking, available at
https://constitutionallyspeaking.co.za/political-party-funding-act-should-be-brought-
into-operation-forthwith/.
240 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (13 April 1999).
 New National Party para 12. In the same case the Constitutional Court also held that unlike
241
the right to vote, all South African citizens irrespective of their age have a right to free, fair
and regular elections (para 12).
242 New National Party para 118 where O’Regan stated: ‘Unlike some of the other rights in
chapter 2 of the Constitution, the primary obligation which s 19(2) and (3) impose upon
government is not a negative one, requiring government to refrain from conduct which
could cause an infringement of the right, but a positive one, requiring government to take
positive steps to ensure that the right is fulfilled.’
243 See New National Party paras 13–14; August and Another v Electoral Commission and
Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (1 April 1999)
para 16; NICRO para 28; Richter para 54.
244 New National Party para 16.
245 S 181(3) provides that ‘[o]ther organs of state, through legislative and other measures, must
assist and protect [the Chapter Nine Institutions] to ensure the independence, impartiality,
dignity and effectiveness of these institutions’ and s 181(4) provides that ‘[n]o person or
organ of state may interfere with the functioning of [the Chapter Nine Institutions]’. The
Electoral Commission is also accountable to the NA, and must report on its activities and
the performance of its functions at least once a year (s 181(5)).
246 New National Party para 98.
247 New National Party para 99.
248 New National Party para 12.
249 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (1 April 1999).
250 S 5(1)(e) of the Electoral Commission Act.
251 August para 33.
252 Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016
(2) BCLR 157 (CC); 2016 (2) SA 338 (CC) (30 November 2015).
253 (CCT55/16) [2016] ZACC 15; 2016 (5) SA 1 (CC); 2016 (8) BCLR 987 (CC) (14 June 2016).
254 Mhlope para 109.
255 August para 17.
256 New National Party para 120.
257 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12
March 2009) para 53.
258 In New National Party para 6, the Constitutional Court held that these three requirements
are derived from s 19(3) of the Constitution read together with s 46(1)(b) and 46(1)(c).
Section 46(1)(b) provides that ‘[t]he National Assembly consists of no fewer than 350 and
no more than 400 women and men elected as members in terms of an electoral system that
is based on the national common voters roll’ and s 46(1)(c) provides that ‘the National
Assembly consists of no fewer than 350 and no more than 400 women and men elected as
members in terms of an electoral system that provides for a minimum voting age of 18
years’.
259 New National Party para 15.
260 Rautenbach and Malherbe (2012) 89 fn 56.
261 The fact that prisoners who were serving life sentences without the option of a fine were
excluded from voting was declared unconstitutional by the Constitutional Court in NICRO.
262 The rendering of assistance by electoral officials at the request of a voter is also subject to
the secrecy of the vote. S 39 of the Electoral Act provides that assistance may be given to
 voters who are unable to read, are blind or visually impaired. For a discussion of the plight
of the visually impaired, see generally Maseko, TW (2009) The right of blind and visually
impaired citizens to vote in secret: Is there a duty to do more? SA Public Law 24(2):623–39.
263 S 6(1) of the Electoral Act provides that ‘[a]ny South African citizen in possession of an
identity document may apply for registration as a voter’ and s 1 of the Act defines an
identity document as a bar-coded identity card issued in terms of the Identification Act 68
of 1997 or a temporary identification certificate issued in terms of the Identification Act.
264 New National Party para 19.
265 New National Party para 24.
266 New National Party para 26.
267 New National Party para 20.
268 New National Party para 23.
269 New National Party para 43.
270 New National Party para 122.
271 New National Party para 122.
272 See August; NICRO; Richter; AParty.
273 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004).
274 The amendments to the Electoral Act effecting these limitations were made shortly before
the 2004 general election when Parliament passed the Electoral Laws Amendment Act 34 of
2003.
275 S 8(2)(f ) of the Electoral Act prohibited convicted prisoners who were ‘serving a sentence of
imprisonment without the option of a fine’ from registering as voters and s 24B(2)
prohibited convicted prisoners who were ‘serving a sentence of imprisonment without the
option of a fine’ and who were already on the voters’ roll from voting if they were in prison
on the day of the election.
276 Act 34 of 2003.
277 NICRO para 16.
278 NICRO para 49.
279 2002 SCC 68.
280 NICRO para 58.
281 NICRO para 66.
282 NICRO para 67.
283 Richter para 56.
284 Richter para 57.
285 Richter para 68.
286 Richter para 69.
287 Richter para 76.
288 Richter para 77.
289 Richter para 78.
290 New Nation Movement para 5.
291 New Nation Movement para 100.
292 New Nation Movement para 120.
293 New Nation Movement paras 16–19.
294 New Nation Movement paras 20–24.
295 New Nation Movement para 17.
296 New Nation Movement para 18.
297 New Nation Movement para 19.
298 New Nation Movement para 22.
299 New Nation Movement paras 30–46.
300 New Nation Movement paras 48–9.
301 New Nation Movement para 52.
302 New Nation Movement para 60.
303 New Nation Movement para 63.
304 New Nation Movement para 89.
305 New Nation Movement paras 96–9.
306 New Nation Movement paras 113–20.
307 New Nation Movement para 125.
Constitutional property law

16.1 Introduction

16.2 The negative phraseology of the property clause

16.3 The section 25(1)–(3) methodology

16.4 Deprivation of property

16.4.1 The meaning of deprivation
16.4.2 Arbitrary deprivation of property

16.5 Expropriation of property

16.5.1 The meaning of expropriation of property
16.5.2 Compensation for expropriation
16.5.3 Expropriation without compensation

16.6 Land reform: Distinguishing between redistribution and restitution of land

Summary

16.1 Introduction
The modern history of South Africa is dominated by the conquest and
dispossession of black South Africans of their land by the colonial and
apartheid states. This process had a devastating effect on their lives. It
deprived black people, not only of their land, but also of their
communities, their homes, their livelihoods, their way of life and
ultimately their dignity and sense of belonging. A pivotal moment in the
history of land dispossession came shortly after the formation of the
Union of South Africa, with the passing of the Natives Land Act1 in 1913.
The Act allocated only approximately 8% of arable land to black South
Africans and left the remaining 82% of usually more fertile arable land
for whites. It also created reserves for black South Africans and
prohibited the sale of territory in white areas to blacks and vice versa.
Sol Plaatje eloquently summed up the effect of this Act when he stated –
after it came into operation – that ‘Awakening on Friday morning, June
20, 1913, the South African native found himself, not actually a slave,
but a pariah in the land of his birth’.2 A further pivotal development
occurred when the apartheid regime decided in the 1950s to move all
black people from areas partly occupied by white people or situated
close to areas where white people lived. These forced removals were
coupled with the policy of keeping black people out of ‘white’ urban
areas, unless they were employed there. Many people were
dispossessed of their land during these forced removals, including
people who lived in Sophiatown in Johannesburg and District Six in
Cape Town.

The dispossession of land

Some of the ways in which black South Africans were
deprived of their land and the consequences of this
process of dispossession were described by Madlanga
J in his main judgment in the Constitutional Court case
of Daniels v Scribante and Another3 as follows:
[14] Dispossession of land was central to colonialism and
apartheid. It first took place through the barrel of the gun and
“trickery”. This commenced as soon as white settlement began,
with the Khoi and San people being the first victims. This was
followed by “an array of laws” dating from the early days of
colonisation. The most infamous is the Native Land Act
(subsequently renamed the Black Land Act). Mr Sol Plaatje, one
of the early, notable heroes in the struggle for freedom in South
Africa who lived during the time this Act was passed, says of it,
“Awaking on Friday morning June 20, 1913, the South African
native found himself, not actually a slave, but a pariah in the land
of his birth”.

[15] The effects of this Act are well known to many South
Africans:

“The Native Land Act … apportioned 8% of the land area of

South Africa as reserves for the Africans and excluded them
from the rest of the country, which was made available to the
white minority population. Land available for use by Africans
was increased by 5% [in terms of the Native Development and
Trust Land Act 18 of 1936] bringing the total to 13% of the
total area of South Africa, although much of the land remained
in the ownership of the state through the South African
Development Trust supposedly held in trust for the African
people. Thus 80% of the population was confined to 13% of
the land while less than 20% owned over 80% of the land. This
apportionment of land remained until the end of apartheid
and remains virtually unchanged.”

[16] The purpose of it all was, first, the obvious one of making
more land available to white farmers. The second “was to
impoverish black people through dispossession and prohibition of
forms of farming arrangements that permitted some self-
sufficiency. This meant they depended on employment for survival,
thus creating a pool of cheap labour for the white farms and the
mines. White farmers had repeatedly complained that African
people refused to work for them as servants and labourers”. The
third was the enforcement of the policy of racial segregation,
which assumed heightened proportions during the apartheid era.

[17] The Black Land Act, together with other stratagems,

succeeded in pushing Africans off their land and into white farms,
mines and other industries. These other stratagems, like the
imposition of a variety of taxes including property taxes, created
the need for cash. Selling livestock for this purpose was
unsustainable. Cash could be obtained only by working for whites.

[18] Other African people found themselves working as labour

tenants on land now in the hands of whites. That dispensation
subjected them to untold cruelty and suffering. Sol Plaatje cites
an example:

“The baas exacted from him the services of himself, his wife
and his oxen, for wages of 30 shilling a month, whereas
Kgobadi had been making £100 a year, besides retaining the
services of his wife and of his cattle for himself. When he
 refused the extortionate terms, the baas retaliated [by
requiring] him to betake himself from the farm … by sunset of
the same day, failing which his stock would be seized and
impounded, and himself handed over to the authorities for
trespassing on the farm.”

[19] Lest I appear to suggest that land dispossession affected

only South Africa’s African people, the truth is that “Coloured”
and Indian people also suffered this heart-wrenching pain. The
apartheid government used the Group Areas Act “to complete the
policy of racial segregation by removing ‘Coloured’ and Indian
people from so-called white areas”. I cite a few examples. A “rich
closely knit” Indian community that used to live in an area called
the Magazine Barracks close to the Durban CBD was removed
under this Act to Chatsworth many kilometres away from their
place of work. A community that comprised 3 500 “Coloured” and
50 Indian families was removed from an area called Die Vlakte
within the town of Stellenbosch. The excuse was that the area was
a slum. But, says Hector-Kannemeyer:

“‘Die Vlakte’ was anything but a slum area, with no

overcrowding and unclean conditions and no real reason for
commissioning such a traumatic relocation of thousands of
‘coloured’ residents … Besides the removal of 3 500 ‘coloured’
families and 50 Indian families, the heartbeat of the ‘coloured’
community located in ‘Die Vlakte’ was affected by the
destruction of six schools, four churches, a mosque, a cinema
and ten businesses.”

[20] African, Indian, “Coloured” and Chinese people were

removed from Sophiatown. The Indians, “Coloureds” and Africans
were moved many kilometres away and the Chinese to the city
close by. There were also the District Six removals in Cape Town.
Like the removals of Sophiatown, the District Six removals, which
affected “Coloured”, Cape Malay, Indian and African alike, gained
worldwide notoriety.

[21] Earlier I referred to racial segregation under apartheid.

Apartheid sought to divest all African people of their South
African citizenship. According to the grand scheme of apartheid,
Africans were to be citizens of so-called homelands. The
consequence was a variety of tenuous forms of land tenure for
victims within what – to apartheid – was “South Africa proper”.
This meant throughout the length and breadth of our country
victims were made strangers in their own country. On farmland –
which this case is about – their residence was particularly
precarious. They could be, and were often, subjected to arbitrary
evictions. Needless to say, they could not have much say on the
 conditions under which they lived on the farms, however
deplorable. This was a life bereft of human dignity. This is
poignantly articulated by the lament and exhortation by Mr Nkosi:
“When the whites took our land away from us, we lost the dignity
of our lives … But in everything we do, we must remember that
there is only one aim and one solution and that is the land, the
soil, our world”.

[22] Painfully, in some instances this is not just history. To this

day, some of the poorest in our society continue to keep homes
under the protection of ESTA. Needless to say, occupiers under
ESTA are a vulnerable group susceptible to untold mistreatment.
This is especially so in the case of women.

Given this history, it is unsurprising that section 25 of the Constitution

(the property clause) not only protects the right to private property, but
also establishes a framework for an extensive programme of land
reform and redistribution, and imposes an obligation on the state to
transform South Africa’s system of property law which ‘was
characterised during the apartheid era by its systematic and consistent
ignorance of apartheid laws and their effect on individual property
rights’.4 As section 25 reads now, it attempts to strike a balance between
the protection of property rights, on the one hand, and the
redistribution of property to right the wrongs of the past, on the other.
The protection of private property is set out in section 25(1) to (3) of the
Constitution read with section 25(4). These sections deal with the
deprivation and expropriation of property and the compensation (if
any) payable when such an expropriation occurs. The constitutional
framework for land reform and redistribution and the state’s obligations
to redistribute land, is set out in sections 25(5) to 25(8).
Sections 25(1) to (4) read as follows:
(1) No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application –
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and
manner of payment of which have either been agreed to by those
affected or decided or approved by a court.
 (3) The amount of the compensation and the time and manner of payment
must be just and equitable, reflecting an equitable balance between the
public interest and the interests of those affected, having regard to all
relevant circumstances, including:
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section –
(a) the public interest includes the nation’s commitment to land reform,
and to reforms to bring about equitable access to all South Africa’s
natural resources; and
(b) property is not limited to land.

And section 25(5) to (8) read as follows:

(5) The state must take reasonable legislative and other measures, within its
available resources, to foster conditions which enable citizens to gain
access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result
of past racially discriminatory laws or practices is entitled, to the extent
provided by an Act of Parliament, either to tenure which is legally secure
or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices is entitled, to the
extent provided by an Act of Parliament, either to restitution of that
property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative
and other measures to achieve land, water and related reform, in order to
redress the results of past racial discrimination, provided that any
departure from the provisions of this section is in accordance with the
provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).

It is in this context that Mostert points out that ‘the South African
property clause is characterised by inherent tension between its
dichotomously protective and reformative aspects’.5 In an attempt to
provide a legal analysis of the property clause, one simply must be
mindful of the fact that you are constantly required to consider this
tension between the needs of the ‘haves’ and the ‘have-nots’.
With this in mind, this chapter will provide an overview of the
constitutional framework governing land and land matters in South
Africa. The legal framework governing section 25 will be analysed with
the view to understanding the constitutional property clause in context.
Furthermore, the chapter will examine key aspects of constitutional
property law, such as:
1. the fact that private property is negatively protected in terms of
section 25 and the implications of that point of departure for
property protection under the property clause;
2. the distinction between deprivation and expropriation of property,
which distinction is not always articulated clearly by South African
courts and remains a notoriously contentious issue;
3. the requirement of compensation for expropriation, which is
perhaps one of the most contested issues in modern South African
property law; and, finally,
4. the importance of land reform as a tool to ensure a more equitable
distribution of land in South Africa.

This latter section will focus on framing the historical context within
which any discussion of land should be understood in South Africa. In
this regard, it is crucial to understand dispossession of African land by
the colonial and apartheid states in order to understand why land
reform is an integral part of the South African property clause. These are
some of the pertinent issues that are applicable in the context of
constitutional property law currently and will be elaborated on in this
chapter.

16.2 The negative phraseology of the property clause

Unlike section 28 of the Constitution of the Republic of South Africa Act
200 of 1993 (the interim Constitution),6 section 25 of the Constitution
does not guarantee the right to property in a positive manner, but
instead phrases the protection negatively.7 Section 25(1) thus states that
‘no one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property’.
There are a number of important implications of the negative
phraseology of section 25(1). One of the most significant is that,
although property is in principle protected, property rights are not
viewed as absolute or unrestricted.8 Instead, section 25(1) confers the
authority on the state to interfere with a person’s property rights,
provided the interference complies with the requirements of section
25(1), namely that it must be in terms of law of general application and
that no law may permit arbitrary deprivation of property. Apart from
authorising state interference with property rights, therefore, section
25(1) also sets the legal parameters or boundaries for such interference.
In this regard, it arguably provides considerable protection for property
rights, but it also indicates quite clearly that those property rights may
be limited or restricted in certain respects. These limitations or
restrictions will take various forms depending on the regulatory
framework governing the particular state interference. It may also be
that property rights are limited when other constitutional rights are
impacted. However, the rhetoric, in terms of what section 25(1) permits,
remains the same.
Property is a paradox. It aims at security and stability. Yet this
stability can be achieved only by making property rights responsive to
each person’s need to have some measure of the same security. This
requires making property rights contingent on their effects in the world
and especially on their effects on those excluded from the world of
property.9

Ownership as an absolute and thus inherently

unrestricted right
In South Africa, ownership has traditionally been
described as an absolute right. This description refers
to different characteristics of the right of ownership,
but the most significant of these is that ownership is
an inherently unrestricted right, although it might be
subject to restrictions imposed in terms of the law and
the rights of others.10
Even though the origins of this characteristic of
ownership have been traced back to nineteenth
century German legal scholars such as Friedrich von
Savigny (1779–1861) and Bernard Windscheid
(1817–1892), rather than to Roman or Roman-Dutch
law, it has been accepted by the South African
courts.11
In Johannesburg Municipal Council v Rand
Townships Registrar, for example, the Court held that
though the content and scope of ownership has been
a matter of controversy for centuries:
Savigny’s definition may be accepted as of high authority.
“Dominium is the unrestricted and exclusive control which a
person has over a thing” (Savigny, System, vol. 1, sec. 59, p.
367). Inasmuch as the owner has the full control, he also has the
power to part with so much of his control as he pleases.12

As Dhliwayo points out, an important consequence of

the inherently unlimited nature of ownership is that an
owner is in principle entitled to do with his or her
property as he or she likes, within the limits of the law.
She describes this characteristic as follows:
Ownership is said to be absolute in the sense that it is unlimited
in principle, allowing the owner to do with his property as he
likes, even though it might be subject to temporary restrictions.
Van der Walt argues that this perception of ownership, which has
dominated South African legal doctrine, is often equated with
private individual ownership of property in a free market
environment. Private landownership in a free market endows the
owner with entitlements that are unrestricted in principle, but may
allow for the existence of restrictions. This indicates that an owner
is free to do what he pleases with his property, unless his right is
restricted by legislation or by consent.13

Given that ownership is characterised as an inherently

unrestricted right, it also follows that any restrictions
that are imposed on an owner’s entitlements, and
especially any limits that are imposed by the state, are
seen as abnormal and external. Restrictions on
ownership, therefore, should be imposed only ‘when
they are strictly justified, for legitimate reasons related
to overriding public interest in which social consensus
could be assumed, and then only on a temporary
basis’.14
In a separate article, Van der Walt has argued that the
common law definition of ownership as an absolute
and thus inherently unrestricted right was employed
during the apartheid era to uphold and promote white
domination, first, by restricting the acquisition of
ownership largely to whites only; and, second, by
favouring ownership over all other rights and interests
in land.
Translated into very simple terms, one can say that the South
African system of land rights has always privileged the institution
of ownership, and in fact the whole system of apartheid land laws
was built on and upheld in terms of this privilege. Both big and
small apartheid were founded on and made possible by the
hierarchical primacy of ownership: the (im)possibility of acquiring
and exercising land-use rights was ultimately determined by the
(im)possibility of owning land in a certain area.

The supremacy of white land rights and the deficiencies of black

land rights under the apartheid regime were of course primarily
the result of political choices and the concomitant inequitable
division of available land, but the deficiencies of black land rights
were supported and exacerbated by the hierarchical civil-law
property system. Even apart from the underlying political choices
and policies, white land rights were strong and efficient because
they were defined and protected in terms of the strong ownership
paradigm, whereas black land rights, for the most part consisting
of either traditional tribal land rights or statutory ‘rights’ such as
site permits, residential permits, lodger’s permits, hostel permits
or certificates of occupation, were weak and insecure because
they were defined and treated as unrecognized and unprotected
property relations.

In terms of the hierarchical civil-law system of property rights,

none of the black land rights were secure or strong in the sense
that they could compete with or be weighed against ‘traditional’
civil-law rights, nor were they suitable in the sense that they could
support those living on the land or provide legal security for
bonds or loans. Most black land was cut off from markets and
from economic infrastructure. By definition, living on black land
meant poverty. Although the choice to structure the distribution of
 land and, consequently, of power along these lines was political,
and although the actual embodiment of this distribution was
created through legislation that seemed to have little bearing on
property law as such, the framework for the effective
implementation of apartheid land law was provided by the
seemingly neutral structure of civil-law property institutions.

In a nutshell, the apartheid land-rights regime was based on the

relative strength and security of white land rights, combined with
the relative weakness and insecurity of black land rights. My point
is that this division of strong and weak rights may look like a
purely political creation, but in fact it was founded on (and,
legally speaking, exacerbated by) a highly valued legal institution,
namely the traditional civil-law hierarchy of property rights. The
apartheid land-rights regime exploited the power relations implicit
in this hierarchy to ensure the political domination and legal
security that entrenched white privilege and this hierarchy of
power was not only upheld because of racial-political choice, but
also strengthened by the legal-dogmatical choice in privileging
traditional, common law institutions. Interestingly enough, this
does not mean that traditional, civil-law property institutions were
considered inviolable: a number of quite creative deviations from
tradition were introduced (and accepted as justifiable) during the
apartheid era to make room for new developments and demands
in the commercial property sector, but these ‘new patterns of
landownership’ served the purposes of high-finance development
and the provision of upper-class housing, holiday accommodation
and commercial premises; none of these developments was
aimed at or served the land-use needs of the underprivileged, the
homeless, the poor, or those who had been disadvantaged or
dispossessed under the apartheid regime. Innovation and
creativity seem to have been reserved for the entrenchment of
privilege, not for the struggle against poverty and inequity.15

The shift from the pre-constitutional notion of property as an absolute

and thus inherently unrestricted right to the constitutional notion of
property as an inherently limited and restricted right was highlighted by
the Constitutional Court in PE Municipality v Various Occupiers.16 In
this case, the Port Elizabeth Municipality applied for an order in terms
of section 6 of the Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act17 (PIE Act) evicting the respondents from
privately owned land which they had been occupying unlawfully.
 Section 6 of the PIE Act provides, inter alia, that a court may grant an
eviction order only if it is just and equitable to do so after considering all
the relevant circumstance,18 including: (a) the circumstances of the
occupation of the land;19 (b) the period the unlawful occupier has been
there;20 and (c) the availability of alternative accommodation.21
The Constitutional Court refused to grant the eviction order on the
ground that the unlawful occupiers were a relatively small community
(68 people including 23 children); that they had occupied the land for a
significant period of time (between two and eight years); that neither
the municipality nor the landowners were using the land; and that the
municipality had not made any attempt to negotiate a mutually
acceptable solution with the unlawful occupiers. Most importantly, the
municipality had not made alternative accommodation available for the
unlawful occupiers and they would be rendered homeless if they were
evicted. In light of these facts, the Court concluded that it would not be
just and equitable to evict the community.22
In arriving at this decision, the Court set out the context within
which the provisions of the PIE Act must be interpreted and especially
the relationship between the right to property guaranteed in section 25
and the right to housing in section 26. Sachs J held in this respect that:
In sum, the Constitution imposes new obligations on the courts concerning
rights relating to property not previously recognised by the common law. It
counterposes to the normal ownership rights of possession, use and
occupation, a new and equally relevant right not arbitrarily to be deprived of a
home. The expectations that ordinarily go with title [or ownership] could clash
head-on with the genuine despair of people in dire need of accommodation.
The judicial function in these circumstances is not to establish a hierarchical
arrangement between the different interests involved, privileging in an
abstract and mechanical way the rights of ownership over the right not to be
dispossessed of a home, or vice versa.23

As Roux points out, instead of resolving the conflict between the right to
property in section 25 and the right to housing in section 26 by
privileging ownership over the right not to be dispossessed of a home,
the Constitutional Court in Port Elizabeth Municipality sought to
reconcile the two rights by adopting a ‘context-sensitive balancing’
approach.24 This context-sensitive balancing approach, he points out
further, is not aimed at providing a thorough theory on the
Constitution’s property rights morality, but rather at installing an ethic
of compassion in the courts and other organs of state that are
responsible for mediating competing property interests. This means
that ‘s[ection] 26(3) may be said to have created a new form of property
right, one that does not provide an absolute barrier against eviction, but
which rather requires the courts to treat common-law ownership rights
and the right not to arbitrarily be evicted from one’s home in a non-
hierarchical way.’25 This is an important insight into the contextual
nature of the property clause and the particular understanding of the
negative phraseology of the provision. In resolving property disputes in
the constitutional dispensation, a context-sensitive approach may
require giving due cognisance to other, non-property rights, if these
rights are implicated.
The context-sensitive balancing approach was also applied by the
Constitutional Court in Daniels v Scribante and Another.26 In this case,
the applicant, Mrs Daniels, worked and lived on a farm together with
her family. She wanted to make basic improvements to her dwelling in
order to bring it up to a habitable standard, at her own cost. These
improvements included levelling the floors, paving part of the outside
area, and installing an indoor water supply, a wash basin, a second
window and a ceiling.
After she started making these improvements, Mrs Daniels received
a letter from the respondent, Mr Scribante, who was the farm manager,
ordering her to stop the work. Despite conceding that the living
quarters were not fit for human habitation, Mr Scribante and the farm
owners claimed that the improvements Mrs Daniels was making were
unlawful because she did not first obtain their permission.
In response to this letter, Mrs Daniels argued that the Extension of
Security of Tenure Act27 (ESTA) granted her both the right to reside on
the farm28 as well as the right to dignity29 and that, read together, these
provisions gave her the right to make improvements without first
obtaining permission. In their reply, Mr Scribante and the farm owners
argued that ESTA does not explicitly provide occupiers with a right to
improve the property in which they live and, consequently, that no such
right existed.
The Constitutional Court found in favour of Mrs Daniels. In arriving
at this decision, it held that Mr Scribante and the farm owner’s
argument was ‘unduly narrow’. ESTA, the Court held, is aimed, not only
at giving effect to section 25(6) of the Constitution, but also at
addressing the egregious history of African land dispossession in South
Africa. It must, therefore, be interpreted as providing an occupier of
land with the right to make improvements to the dwelling in which he
or she lives.30
To hold otherwise, could strip the rights conferred on occupiers of
their substance. Specifically, while the right enjoyed by an occupier
could – on paper – be viewed as no more than a right to reside on and
use the land in issue, the section must be interpreted purposively to
give it a broader meaning. As Madlanga J explained:
An occupier who lives on property under the most deplorable conditions does
‘reside’ on that property. But is that the right conferred by ESTA? Definitely not.
The occupier’s right to reside must be consonant with the fundamental rights
contained in section 5 [of ESTA], in particular – for present purposes – the right
to human dignity. Put differently, the occupation is not simply about a roof
over the occupier’s head. Yes, it is about that. But it is about more than just that.
It is about occupation that conduces to human dignity and … other
fundamental rights.31

In any event, if occupiers were not allowed to upgrade their dwellings, this
could lead to eviction by stealth by property owners. ‘This would be a direct
result of the intolerability of conditions on the dwelling. And these “evictions”
might happen beneath the radar of the carefully crafted eviction process. That
would make nonsense of the very idea of security of tenure [guaranteed by the
Constitution]’.32

After all, like the notion of ‘reside’, security of tenure must mean that the
dwelling has to be habitable. That in turn connotes making whatever
improvements that are reasonably necessary to achieve this. Of what use is a
dwelling if it is uninhabitable? None.33

Apart from the fact that ESTA does not explicitly provide occupiers with
a right to improve the property in which they live, Mr Scribante and the
farm owners advanced a second argument. In this respect, they argued
that the right to reside on the farm should not be interpreted as
including the right to make improvements, because such an
interpretation would indirectly place a positive obligation on a farm
owner to give effect to section 25(6) of the Constitution.34
The reason why such an interpretation would indirectly place a
positive obligation on a farm owner to give effect to section 25(6) is
because section 13 of ESTA provides that a court may order a farm
owner to pay compensation for improvements made by an occupier
when that occupier is evicted. A farm owner, therefore, could
potentially be forced to pay for improvements even though he or she
had refused to give permission for those improvements to be made.35
The Constitutional Court rejected this argument. It held that the
provisions of the Bill of Rights – including section 25(6) – could, in
certain circumstances, bind private land owners and thus place a
financial obligation on a farm owner to reimburse an occupier who had
made improvements on his or her dwelling.
By its very nature, the duty imposed by the right to security of tenure, in both
the negative and positive form, does rest on private persons. People requiring
protection under ESTA more often than not live on land owned by private
persons. Unsurprisingly, that is the premise from which this matter is being
litigated. And I dare say the obligation resting, in particular, on an owner is a
positive one. A private person is enjoined by section 25(6) of the Constitution
through ESTA to accommodate another on her or his land. It is so that the
obligation is also negative in the sense that the occupier’s right should not be
‘improperly invaded’.36

In his concurring judgment, Froneman J pointed out that Mr Scribante

and the farm owners’ arguments where firmly based on the notion that
ownership is an absolute right and, consequently, that an occupier like
Mrs Daniels can make improvements only with the permission of the
farm owner. This absolute concept of ownership, Froneman J held, is no
longer acceptable in South Africa for a number of reasons. The most
important, however, is that it will frustrate the transformation of our
system of property law.
But the deeper underlying reasons must also be understood. They have been
expounded also by others, but the recent death of Professor André van der Walt
provides a fitting moment to honour his pioneering work in this regard. As he
 showed, the absolutisation of ownership and property and the hierarchy of
rights it spawned did not fulfil the purpose of founding political and economic
freedom in South Africa. To the contrary, it confirmed and perpetuated the
existing inequalities in personal, social, economic and political freedom. Black
people were deprived of using property and ownership in their freedom
struggle. The last word is Professor van der Walt’s:

[T]raditional notions of property do not suffice in transformational

contexts, where the foundations of the property regime itself are or should
be in question because regulatory restrictions, even when imposed in
terms of a broadly conceived notion of the public good, simply cannot do
all the transformative work that is required. In this perspective it is not
sufficient to demonstrate that property is subject to … public purpose
restrictions; the point is to identify and explain instances where
transformation justifies changes that question the very foundations upon
which the current distribution of property rests.37

This insight cuts deeper than only the rectification of historical

injustices. When the racial inequalities of the past are rectified, the
potential injustices of the then existing distribution of property may not
be racially tainted any more. But the values of the Constitution are not
aimed solely at the past and present, but also the future. A future ‘Ms
Daniels’ will still be entitled to live a dignified life, no matter the race of
the owner. 38

Property as a social solidarity right

Very often the starting point of a dispute involving
property is important in the sense that it may
determine the potential outcome, or remedy that is
awarded, in any particular dispute. Placing property at
the centre, or at the heart of any dispute that may
involve property rights, can in certain circumstances go
against the constitutional aspirations of healing the
divisions of the past and building a society based on
fundamental values, such as human dignity. Singer
explains that quite often in a property dispute, the
following arises:
On one side are claims of property; on the other side are claims
of humanity. On one side are claims to rights; on the other side
are acknowledgements of responsibilities. On one side are the
values of liberty and autonomy; on the other side are values
associated with security, social stability, and solidarity.39

In this regard, a problem can arise when a nation’s

political and moral commitments are in tension, even
in contradiction. Singer makes the claim that self-
interest means that we can live on our own terms.
However, it also has a dark side in the sense that it
promotes indifference to the effects of one’s actions on
others.40 He goes further to argue that we could pay
attention to those on the margins, those outside the
boundaries, and those on the edges of the field. We
could adjudicate the tensions we face between
competing interests by developing laws and policies
that will spread the wealth more evenly and allow every
person to obtain a decent life.
The crucial question is: Why should we do this? We
should focus, according to Singer, on the importance
of human dignity, the sanctity of the individual,
because of the maxim that no one is an island.41 ‘If the
ability to lead a decent life is important, it is equally
important for every person. If property is necessary to
obtain the ability to lead a decent life, then, every
person must have a realistic opportunity to obtain
access to property.’42 However, because property is
essentially exclusionary, protection of the rights of
owners may have the effect of leaving others out of the
system. Therefore, Singer suggests that unless the
government in South Africa can implement policies
that spread access to property more widely, the
newfound ideals of equality, freedom, and democracy
will be fatally undermined. It is essential to shape
property institutions so that it is realistically possible
for everyone to enter the system and obtain a decent
 livelihood.43 When asking the question of what values
should inform the property rules and institutions we
choose, we should not ignore distributive issues and
simply try to maximise the size of the economic pie.44
Perhaps this is exactly what the outcome in
Daniels v Scribante and Another shows in the context
of adjudicating property disputes in the constitutional
dispensation. It shows that ‘[t]he laws and policies
governing and surrounding property must protect
established claims while simultaneously ensuring the
presence of realistic opportunities for those who have
not yet been able to establish property claims.’45
Daniels also shows ‘that we, as a society, have simply
abandoned traditional notions of property-as-
protection in favour of an idea of property that confers
much greater collective control.’46 Either way, the
judgment indicates that courts recognise that complex
constitutional matters cannot always be approached in
a binary, all-or-nothing fashion, but that the result is
often found on a continuum that reflects variations in
the respective weight of the relevant considerations.47
Therefore, the duties that ownership of land comes
with in the constitutional dispensation may differ from
the obligations that owners may have had in the pre-
constitutional context. The negative phraseology of
section 25(1) arguably endorses this obligation.

16.3 The section 25(1)–(3) methodology

When it comes to determining whether a law has infringed the right to
property, the Constitutional Court has adopted a multi-stage
methodology. This multi-stage methodology – which was articulated for
the first time in First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service and Another; First
National Bank of SA Ltd t/a Wesbank v Minister of Finance – provides
that whenever a person claims that his or her right to property has been
infringed by a law, the alleged infringement must be analysed as
follows:
(a) Does that which is taken away [from the property holder] by
operation of the law [in question] amount to property for purpose of
section 25?
(b) Has there been a deprivation of such property [by the organ of state
concerned]?
(c) If there has been, is such deprivation consistent with the provisions
of section 25(1)?
(d) If not, is such a deprivation justified under section 36 of the
Constitution?
(e) If it is, does it amount to expropriation for purpose of section 25(2)?
(f ) If so, does it [the expropriation] comply with the requirements of
section 25(2)(a) and (b)?
(g) If not, is the expropriation justified under section 36?48

An important consequence of this multi-stage methodology, the

Constitutional Court held in FNB, is that the concept of a deprivation
must be interpreted widely to encompass all legitimate interferences
with property, while the concept of an expropriation must be
interpreted narrowly to encompass only certain kinds of legitimate
interferences with private property. This means, the Court held further,
that expropriations must be treated as a subset of deprivations, albeit a
particularly severe subset of deprivations that require compensation.49
Given that expropriations must be treated as a subset of
deprivations, the Court went on to hold, it follows that an expropriation
will be valid only if it meets the requirements of section 25(1) as well as
section 25(2). The starting point when considering any challenge under
section 25 for the infringement of property rights, therefore, must
always be section 25(1):50
Viewed from this perspective section 25(1) deals with all ‘property’ and all
deprivations (including expropriations). If the deprivation infringes section
25(1) and cannot be justified under section 36, that is the end of the matter. The
 provision is unconstitutional.51 If, however, the deprivation passes scrutiny
under section 25(1) (i.e. it does not infringe section 25(1) or, if it does, is a
justified limitation) then the question arises as to whether it is an
expropriation. If the deprivation amounts to an expropriation then it must pass
scrutiny under section 25(2)(a) and make provision for compensation under
section 25(2)(b).52

This approach towards the relationship between deprivations and

expropriations raises the question of whether there can ever be an
overlap between these two concepts.53 Constructive expropriation
envisages the idea that somehow a grey area exists between deprivation
and expropriation of property, for which compensation must be paid.54
Van der Walt explains that the notion of constructive expropriation is
premised on the argument that, when regulation of the use and
enjoyment of property causes excessive and unfair loss for the owner,
even to the extent that the property becomes worthless, the owner
should receive compensation, regardless of whether the state acquires
the property for public use or not.55
Slade notes that the question of whether constructive expropriation
is recognised in South African law is contested, and is sidestepped by
courts although some awards made by the courts seem to resemble
something similar to compensation for constructive expropriation.56
Nonetheless, the granting of this sort of compensation is arguably not
for constructive expropriation, but for deprivation that in some
instances has excessive effects.
If one considers the fairly rigid result of a declaration of invalidity
that section 25(1) potentially causes, especially if the methodology
adopted in FNB 57 is followed relatively strictly,58 the novel suggestion by
Van der Walt and Bezuidenhout should be welcomed in order to save
important pieces of legislation from being declared invalid in all
instances.
In the cases where the legislation, common law or customary law
cannot be interpreted or developed to bring it in line with the
Constitution, but where the invalidation thereof would not be in line
with section 39(2) of the Constitution either, it becomes necessary for
courts to step in and award constitutional remedies. More specifically,
constitutional damages constitute one remedy to provide appropriate
relief that is just and equitable to vindicate the violation of the
fundamental right in the Bill of Rights.59 It is in these instances where
the award of constitutional damages rather than invalidating the
legislation is more appropriate. In these instances, the excessive
deprivation is not transformed into expropriation (in terms of
constructive expropriation), but compensation is paid to soften the
effect of the deprivation that has gone too far.

A critical look at FNB’s section 25 analysis

Dugard and Seme have criticised the multi-stage
methodology adopted by the Constitutional Court in
the FNB judgment.60 One of these criticisms is that the
decision to funnel the expropriation enquiry through
section 25(1) ‘is perplexing’. They argue in this respect
that it is important to maintain a clear distinction
between deprivation of property, on the one hand, and
expropriation of property, on the other hand. Although
expropriation is certainly the harshest form of
deprivation, they argue further, this does not imply a
fluid continuum between deprivation and expropriation.
Nor does it imply that the test for lawful expropriation
should be premised on the test for arbitrary
deprivation. Instead, they argue further:
the textual separation of s 25(2) from s 25(1) – along with the
distinct formulation of s 25(2) focused on whether the
expropriation is undertaken under a law of general application, in
the public purpose or interest and subject to compensation –
suggests that, rather than a continuum-like relationship between
deprivation and expropriation as set out in the FNB inquiry,
expropriation is a distinct sub-set of deprivation requiring a
separate investigation. If this is the case, it means one cannot
infer what is expropriation from the assessment for deprivation,
with its focus on whether or not the deprivation is arbitrary.
Instead, it seems there must be an entirely separate inquiry for
lawful expropriation.61
 In light of these criticisms, Dugard and Seme suggest
their own systematic approach that differs from the
approach taken by the Constitutional Court in FNB.
They suggest that where a property owner alleges
expropriation, the investigation should be as follows:
a. Does the interest that has been interfered with comprise
constitutional property (if not, there is no s 25 challenge)?
b. If so, does the disputed deprivation entail a termination by
the state of all property rights (which we refer to as a
‘comprehensive compulsory deprivation’) for the (former)
owner/s in respect of that property?
c. If the disputed interference does not entail a comprehensive
compulsory deprivation, but results in a lesser/partial
deprivation (by the state or other party), the dispute should
continue as a s 25(1) inquiry into the arbitrariness of the
deprivation.
d. If the disputed interference does entail a comprehensive
compulsory termination of the (former) owner’s property
rights by the state, does the relevant legislation – as law of
general application – authorise expropriation in the precise
circumstances of the case?
e. If not, the interference cannot be expropriation per se. In such
cases, where the applicable legislation does not authorise the
type of comprehensive compulsory deprivation experienced
…, it is unlawful administrative action, to be challenged
directly under administrative law. Or, where the legislation
does authorise the type of deprivation experienced, it is
another form of comprehensive compulsory deprivation such
as forfeiture or a development contribution … that does not,
as a matter of course, attract the requirement for
compensation. In line with subsidiarity principles, any
disputes regarding such acquisitions should be challenged
under administrative law or, where administrative law
arguably does not give effect to the constitutional property
right at stake (or where the limitation complained of is not
administrative action), under s 25(1) rather than s 25(2).62

16.4 Deprivation of property

16.4.1 The meaning of deprivation

Deprivation of property is authorised in terms of section 25(1) of the
Constitution. Although section 25(1) itself does not define the phrase
‘deprivation’, in First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service; First National Bank of SA
Ltd t/a Wesbank v Minister of Finance63 the Constitutional Court
adopted a wide interpretation.64 The Court held in this respect that any
interference with the use, enjoyment or exploitation of private property
involves some deprivation in respect of the person having title or right
to or in the property concerned.65 However, this wide definition has not
been applied consistently in subsequent section 25(1) cases.
In Mkontwana v Nelson Mandela Metropolitan Municipality; Bisset
and Others v Buffalo City Municipality; Transfer Rights Action Campaign
and Others v Member of the Executive Council of Local Government and
Housing, Gauteng and Others,66 for example, the Constitutional Court
adopted a narrower interpretation of the phrase deprivation. Although
the Court agreed with the wide interpretation adopted in FNB,
confusingly, it set out the definition in much narrower terms. It stated in
this respect that in order to determine whether there was deprivation of
property, the extent of the interference or limitation on the use,
enjoyment and exploitation is important. There would be a deprivation
if it can be shown that there was at least a ‘substantial interference or
limitation that goes beyond the normal restrictions on property use or
enjoyment found in an open and democratic society’.67 In other words,
normal restrictions on the use and enjoyment of property, commonly
found in open and democratic societies, might not amount to
deprivations.
A somewhat similar approach was followed in Offit Enterprises (Pty)
Ltd and Another v Coega Development Corporation (Pty) Ltd and
Others68 where the Constitutional Court held that in order for an
interference to amount to a deprivation, it would have to result in a
substantial interference or a limitation that is beyond the normal
restrictions on the use and enjoyment of property.69
The narrow approach adopted in Mkontwana has been criticised by
Van der Walt.70 He argues that all regulatory limitations on the use and
enjoyment of property that are legitimate will be normal in a society. He
also rejects the restriction of the concept of deprivation because this is
contrary to the purpose of section 25(1), which is to legitimise the
imposition of regulatory control and the deprivation of property that
goes with it generally, not only in excessive cases.71 Therefore, Van der
Walt suggests that the idea that a deprivation is only a substantial or
abnormal limitation or interference of the use and enjoyment of
property should probably be ignored and all restrictions on the use and
enjoyment of land should be seen as deprivations, regardless of their
scope. In a similar vein, Roux argues that in most cases courts will quite
easily accept that a deprivation has occurred and proceed with the
requirements of section 25(1), being the third stage in the FNB
methodology.72
Unfortunately, these criticisms do not appear to carry much weight
with the Constitutional Court. This is because it favoured the narrow
interpretation once again in its judgment in SA Diamond Producers
Organisation v Minister of Minerals and Energy NO and Others.73 In this
case, the Court had to determine, inter alia, whether section 20A of the
Diamond Act74 unjustifiably infringed section 25(1) of the Constitution.
Section 20A prohibited unlicensed foreign experts from participating in
the unpolished diamond trade. The applicants, who were mostly small
diamond producers, argued that they relied on the unlicensed foreign
experts to determine the correct international value of the diamonds
they were selling and, consequently, that the prohibition deprived them
of their right as owners of the diamonds to sell them for the correct
price.
The Court dismissed this argument and found that section 20A was
constitutionally valid. In arriving at this decision, the Court began by
considering the definition of deprivation in Mkontwana. It emphasised
that whether there has been a deprivation of property depends on the
extent of the deprivation.75 The loss must be ‘beyond the normal
expected restrictions on property’ for the interference to constitute
deprivation under section 25(1).76 After considering the definition in
Mkontwana, Khampepe J turned to discuss the Offit judgment, where
the Court also emphasised that deprivation requires a substantial
interference in property rights.77 Apart from Mkontwana and Offit,
Khampepe J also relied on the judgment in City of Tshwane
Metropolitan Municipality v Link Africa (Pty) Ltd and Others,78 where a
similar approach to determine deprivation of property was followed.79
In Link Africa, the Court referred to the ‘extent of the intrusion’ in
establishing whether deprivation of property had occurred. Moreover,
Link Africa highlighted that the deprivation must be sufficiently
significant to have a legally relevant impact on the rights of the property
holder.80 Therefore, a substantial or significant interference was held as
the measure by which to determine whether the intrusion constituted
deprivation of property in Diamond Producers CC.81
Qualifications such as ‘beyond the normal’ in Mkontwana,
‘substantial interference’ in Offit and references to the extent of the
deprivation in Link Africa and Diamond Producers CC, have the
potential of complicating the deprivation question, especially when the
issue is only whether there has actually been deprivation of property
(and not the extent of such a deprivation). This is in line with Van der
Walt’s suggestion that a more acceptable solution to the issue of the
definition of deprivation is that ‘every restriction that has a perceptible
effect on the property holder’s use and enjoyment of property, no
matter how small or insubstantial, constitutes deprivation in terms of
section 25(1) and is therefore subject to its requirements’.82 All that
should be necessary to prove this step of the inquiry is that the
deprivation should be significant enough to have a legally relevant
impact on the rights of the affected party. Therefore, the extent of the
deprivation should not be considered at this stage of the section 25
analysis, but rather at the arbitrariness stage.

16.4.2 Arbitrary deprivation of property

In FNB the Constitutional Court noted that arbitrary deprivation will
occur if the law in question does not provide sufficient reason for the
deprivation, or if it is procedurally unfair. It should be mentioned that
the Court merely stated that procedural fairness could play a role in
determining whether the deprivation was arbitrary, and did not
elaborate further on what the notion of procedural arbitrariness means.
There are two cases in which the Court did find that a deprivation was
arbitrary because due process had not been followed. In Janse van
Rensburg NO v Minister van Handel en Nywerheid,83 it was held that
section 8(5)(a) of the Harmful Business Practices Act84 violated section
25(1) in allowing the Minister of Trade and Industry to seize assets
before the completion of an investigation. Similarly, in Director of Public
Prosecutions Cape of Good Hope v Bathgate,85 it was held that the
Proceeds of Crime Act,86 which permitted the seizure of possessions,
amounted to an arbitrary deprivation in terms of section 25(1).
Essentially, procedural fairness in the context of section 25(1)
means that there must be procedural mechanisms available to ensure
protection of the right to property. This aspect was not extensively
discussed by the Constitutional Court in FNB, but it was examined in
Mkontwana and touched upon briefly in Reflect-All 1025 CC and Others
v Member of the Executive Council for Public Transfer, Road Works,
Gauteng Provincial Government and Another.87 In this case, the
applicants applied for an order declaring section 118(1) of the Local
Government: Municipal Systems Act88 to be unconstitutional and
invalid on the ground that it arbitrarily deprived them of their property.
Section 118(1) provides that the ownership of land may not be
transferred unless a ‘rates clearance certificate’ has been issued by the
municipality where the land is located. This certificate must certify that
all amounts owing to the municipality for municipal service fees,
property rates and other municipal taxes during the two years
preceding the date of application for the certificate have been fully paid.
The applicants argued, inter alia, that section 118(1) was
procedurally unfair because it did not impose an obligation upon
municipalities to keep property owners informed of the amounts owed
by the occupiers. The Constitutional Court held that procedural fairness
is a flexible concept that depends on all the circumstances of the case.89
The Court concluded that it would be impractical to expect
municipalities to supply the owner with information regarding
outstanding amounts owed by occupiers of his or her property.90 Such
an obligation would require additional resources and processes raising
considerable practical implications. Moreover, the owner has a duty to
monitor the occupation and use of the property. Therefore, the Court
found that the law was not procedurally unfair simply because it did not
impose a duty on the municipality to furnish information about
outstanding amounts.91
In Reflect-All the Constitutional Court had to decide whether section
10(1) and 10(3) of the Gauteng Transport Infrastructure Act92 conflicted
with section 25(1) of the Constitution. The impugned provisions, which
provided for planning of provincial roads, imposed certain restrictions
on the use, enjoyment, and exploitation of privately owned property
belonging to the applicants. The Court had to determine whether the
deprivation was procedurally unfair. It confirmed, in line with
Mkontwana, that procedural fairness is a flexible concept which
depends on all relevant circumstances in the case.93 The applicants
argued that the location of planned roads could be determined without
consultation with the landowners and that this resulted in the process
being procedurally unfair. They also argued that the design of the routes
should have been reconsidered before publishing and accepting them,
and neglecting to do so was procedurally unfair because it did not
afford them the opportunity to be part of the process. The Court
rejected both these arguments and found that subsections 10(1) and
10(3) were not procedurally arbitrary, because it would be impractical
and unrealistic to follow the process argued by the applicants.94
Therefore, both Mkontwana and Reflect-All illustrate that procedural
fairness is determined in terms of a context- and fact-sensitive analysis
which is flexible and depends on the circumstances of the particular
case.
Van der Walt states that deprivations can be procedurally unfair in
one of two ways.95 In the first place, if the deprivation is brought about
by administrative action that does not comply with the Promotion of
Administrative Justice Act96 (PAJA) or section 33 of the Constitution, the
administrative action can be attacked on the basis of procedural
unfairness. In this case, procedural arbitrariness as mentioned in FNB
should not come into the picture at all.97 However, if the deprivation is
brought about by law directly, without involving administrative action
and therefore excluding PAJA, this could result in procedural
arbitrariness as intended in FNB.98 In this regard, Van der Sijde argues
that ‘[w]here a deprivation results directly from law of general
application and there is no administrative action involved, section 25(1)
can be relied on directly to challenge the procedural fairness of the
deprivation’.99 This approach to procedural arbitrariness for purposes of
section 25(1) seems logical and it is likely that a similar approach may
be adopted in future.
While the test for procedural fairness has not played a particularly
significant role in the Constitutional Court’s section 25(1)
jurisprudence, the test for substantive arbitrariness has. As pointed out
above, this test may be traced back to the FNB case.
In this case, the Commissioner of the South African Revenue Service
(SARS) detained three vehicles under the physical control of two close
corporations. Although these vehicles were under the physical control
of the close corporations, they did not own them. Instead, the vehicles
were owned by First National Bank (FNB), who had sold them to the
close corporations on credit. SARS detained these vehicles with a view
to selling them in order to recover customs debts the close corporations
owed to the state.
SARS derived its authority to detain these vehicles from section 114
of the Customs and Excise Act100 (Customs Act). In order to make it
easier for SARS to collect customs debts, section 114 created a statutory
fictitious lien over the property of third parties in the physical control of
a customs debtor and empowered the SARS to sell such goods in
execution of the custom debtor’s obligations, even though the goods did
not belong to the customs debtor but rather to the third party, and the
third party was not responsible for the debt owed to SARS.
After the vehicles were detained, FNB challenged the constitutional
validity of section 114 on the grounds, inter alia, that it unjustifiably
infringed the right to property. FNB argued that the detention and sale
of its vehicles by SARS under section 114 of the Customs Act, when it
was not a customs debtor, amounted to an expropriation without
compensation and thus unjustifiably infringed section 25(2) of the
Constitution.
The Constitutional Court found in favour of FNB and declared
section 114 of the Customs Act to be unconstitutional and invalid, not
because it authorised an uncompensated expropriation and thus
infringed section 25(2) of the Constitution as FNB argued, but rather
because it authorised an arbitrary deprivation and thus infringed
section 25(1).
In arriving at this decision, the Constitutional Court accepted that
FNB had been deprived of its vehicles and that section 114 of the
Customs Act was a law of general application. The key question it had to
answer, therefore, was whether section 114 was arbitrary or not. In
order to answer this question, however, the Court first had to decide
what is meant by the term ‘arbitrary’.
In this respect, the Constitutional Court stated that:

[A] deprivation of property is ‘arbitrary’ as meant by section 25 when the ‘law’

referred to in s 25(1) does not provide sufficient reason for the particular
deprivation in question or is procedurally unfair. Sufficient reason is to be
established as follows:
(a) It is to be determined by evaluating the relationship between the
means employed, namely the deprivation in question and ends
sought to be achieved, namely the purpose of the law in question.
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the
relationship between the purpose for the deprivation and the person
whose property is affected.
(d) In addition, regard must be had to the relationship between the
purpose of the deprivation and the nature of the property as well as
the extent of the deprivation in respect of such property.
(e) Generally speaking, where the property in question is ownership of
land or a corporeal movable, a more compelling purpose will have to
be established in order for the depriving law to constitute sufficient
reason for the deprivation than in the case when the property is
something different and the property right something less extensive.
(f) Generally speaking, when the deprivation in question embraces all
the incidents of ownership, the purpose for the deprivation will have
to be more compelling than when the deprivation embraces only
some incidents of ownership and those incidents partially.
(g) Depending on such interplay between variable means and ends, the
nature of the property in question and the extent of its deprivation,
there may be circumstances when sufficient reason is established by,
in effect, no more than a mere rational relationship between means
and ends; in others this might only be established by a proportionality
evaluation closer to that required by s 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a
matter to be decided on all the relevant facts of each particular case,
always bearing in mind that the enquiry is concerned with ‘arbitrary’
in relation to the deprivation of property under s 25.
As paragraph (g) clearly indicates, the non-arbitrariness requirement is
a flexible one which encompasses a wide range of tests. In some cases,
the deprivation simply has to be rational. In other cases, however, it has
to be proportional or, at least, proportional-like. The test for rationality
is located at the low end of the range of tests and the test for
proportionality at the high end.
The test for rationality is located at the low end of the range, because
it merely provides that there must be a rational connection between a
legitimate governmental purpose and the manner in which the state
seeks to achieve that purpose. In order for a deprivation to satisfy this
test it must simply be capable of achieving the state’s purpose. This test,
therefore, imposes very few restrictions on the state’s power to interfere
with private property.101
The test for proportionality is located at the high end of the range of
tests, because it provides that there must be a proportional relationship
between a legitimate governmental purpose and the burden imposed
by the state. In order for a deprivation to satisfy this test it must be the
least restrictive method of achieving the state’s purpose. This test,
therefore, imposes much greater restrictions on the state’s power to
interfere with private property.102
In order to determine which test should be applied, the
Constitutional Court held, it will have to take into account a multiplicity
of relations and a number of factors, including the nature of the right,
the nature of the property and the extent of the deprivation. Where
ownership of land or where ownership of a corporeal movable is
affected by a deprivation, the purpose of the restriction will have to be
more compelling. Similarly, where all the incidents of ownership are
affected by a deprivation, the purpose of the restriction will have to be
more compelling.103
After setting out these principles, the Court turned to apply them to
the facts of the case. Given that the right in question was ownership,
that the property was a movable corporeal thing and that FNB had been
deprived entirely of the vehicles, the Court applied the test for
proportionality, rather than the test for rationality to section 114 of the
Customs Act. In this respect, it held that although the end sought to be
achieved by section 114 of the Customs Act, namely the payment of
customs debts, was legitimate and important for the well-being of the
country, the means used to achieve this end were too drastic and thus
disproportional. Section 114 was disproportional because it provided
for the total deprivation of a person’s property, even though there was
absolutely no connection between that person and his or her property
and the customs debt owing. In the absence of such a connection, a
sufficient reason did not exist for section 114 to deprive persons other
than the customs debtor of their goods. It was, therefore, arbitrary and
unconstitutional.

A critical look at FNB’s test for arbitrariness

In his insightful analysis of the FNB judgment, Roux
has levelled two criticisms against the test for
arbitrariness: First, despite the fact that the test
contains a long list of factors and relationships that
must be taken into account, ultimately it retains a very
wide discretion for the courts. This is because both the
factors that the court must take into account and the
level of scrutiny will vary according to the
circumstances. The test thus suffers from a lack of
certainty.
Second, the test will be the focus of almost every
property clause inquiry. This is because it is through
the application of this test that the courts will seek to
strike a balance between the individual right to
property and the public interest underlying the
deprivation in question. The test, therefore, will have
the effect of ‘telescoping’ or ‘sucking’ all of the issues
section 25 gives rise to into what Roux refers to as an
‘arbitrariness vortex’.
Following the judgment in FNB, the courts have applied the
arbitrariness test on a number of occasions. Despite the fact that they
routinely refer to FNB with approval, the courts frequently reduce the
long list of factors set out in paragraph 100 of the FNB judgment to three
in particular, namely, the extent of the deprivation, the purpose of the
deprivation, and finally, whether there was in fact sufficient reason for
the deprivation. This trend is clearly illustrated in Jordaan and Another
v City of Tshwane Metropolitan Municipality and Others; New Ventures
Consulting and Services (Pty) Ltd and Others v City of Tshwane
Metropolitan Municipality and Another; Livanos and Others v
Ekurhuleni Metropolitan Municipality and Another; Oak Plant Rentals
(Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality.104
In this case, the High Court had to determine whether section 118(3)
of the Local Government: Municipal Systems Act105 (the Systems Act)
resulted in an arbitrary deprivation of property in terms of section 25(1)
of the Constitution. Section 118(3) of the Systems Act provided that any
amount due for municipal service fees, property rates and other
municipal taxes was a charge on the property in respect of which the
amount was owing and enjoyed a preference over any mortgage bond
registered against the property.
In other words, section 118(3) conferred a preferent claim on
municipalities by placing them ahead of mortgagees and other rights
holders in the queue when the property was sold in execution and the
proceeds of the sale had to be distributed among the creditors. As a part
of this preferent claim, it also gave municipalities a right to claim the
amount due for municipal service fees, property rates and other
municipal taxes by executing directly against the property.
Apart from these rights, the Tshwane and Ekurhuleni Metropolitan
Municipalities also claimed that the right to execute directly against the
property in terms of section 118(3) applied, not only to the existing
owner (i.e. the owner who had incurred the municipal fees, rates and
taxes), but also to new owners. Or, to put it another way, that section
118(3) was transmissible. The High Court rejected this argument on a
number of grounds. One of these was that if section 118(3) was
transmissible, then this amounted to an arbitrary deprivation that could
not be justified in terms of the limitation clause.
After finding that ‘the mere existence of such a drastic remedy as a
security provision constitutes a severe limitation of a new owner’s
property rights in terms of section 25(1)’ and could thus be classified as
a deprivation,106 the Court turned to consider whether this deprivation
was arbitrary or not. In this part of its judgment the Court focused on
the extent of the deprivation, the purpose of the deprivation and
ultimately whether there was a sufficient reason for the deprivation.
In terms of the extent of the deprivation, the Court held that the
deprivation caused by section 118(3) of the Systems Act results in a
complete and permanent removal or loss of ownership of land if the
security under the provision is perfected. The deprivation in the context
of section 118(3) is therefore severe as the property owner is divested of
ownership.107 Where successors in title are liable to pay historical debt
in relation to the property, the Court also found no nexus exists
between the historical debt, the property and the new (or subsequent)
owners.108 In this regard, subsequent owners would find it difficult (if
not impossible) to ‘guard against the accumulation of outstanding
consumption charges through contractual arrangements or to reduce
their risk in relation to the consumption of services by tenants and
other occupiers’.109
The purpose of section 118(3) of the Act is to provide security for
municipal debts owed in relation to the property. This purpose is
achieved by ensuring that a statutory hypothec, which ranks higher
than a mortgage bond and allows the municipality to have the property
sold at a sale in execution to recover the outstanding debts, exists. The
provision affords an execution mechanism for the recovery of
outstanding debts. As the provision creates a charge on the land, it
applies to current as well as subsequent owners. Landowners who are
not necessarily debtors of the municipality can, therefore, be held liable
for the debts incurred in relation to the property. The Court was at pains
to point out the distinction between the embargo provision (in section
118(1)) and the security provision (in section 118(3)), especially in
terms of the effect of the provisions in terms of the section 25(1)
analysis. The Court suggested that the purpose of both section 118(1)
and (3) can be achieved if the municipality recovers all outstanding
municipal debts against current owners who clearly have a connection
with the debts while the property is still registered in their names.
Therefore, the purpose of the deprivation has, according to the Court,
been extended beyond what is necessary to achieve the purpose.
Therein lies the unconstitutionality of section 118(3).
In the final instance, the Court in Jordaan considered whether there
was sufficient reason for the deprivation. It held that even if there is
conceivably a connection between the purpose of the deprivation and
the property, there must also be sufficient reason for the deprivation, if
it is to be in line with section 25(1). Moreover, the extent of the
deprivation requires a more compelling reason and a closer link
between the means and the ends. In this regard, the Court stressed that
the fact that the legislation is important for the economic viability and
sustainability of municipalities, does not justify forcing a property
owner to forfeit his ownership in order to pay the municipal debts of his
predecessor in title. Therefore, the means did not justify the ends in this
instance. The Court stated that:
[t]he means employed sanctions the total deprivation of a subsequent owner’s
immovable property under circumstances where such owner has no
connection with the transaction giving rise to the municipal debt or the debt
itself. The new or subsequent owner is neither a debtor of the municipality with
regard to these debts, nor was he or she in a position to prevent the
accumulation of historical debts before transfer is effected.110

Consequently, as in FNB,111 the Court held in Jordaan that section

118(3) casts the net too wide and that a sufficient reason did not exist
for section 118(3) to deprive successors in title of their property for
debts incurred in relation to that property by their predecessors in
title.112 The provision, therefore, results in an arbitrary deprivation of
property for purposes of section 25(1) of the Constitution.113 The
analysis of the arbitrariness test in Jordaan is interesting as it seems to
confirm and apply the arbitrariness test as in the FNB decision.
 Is there an arbitrariness trend?
In both FNB and Jordaan a statutory provision
authorised an organ of state to seize a third party’s
property in order to satisfy the debts of someone other
than that third party. In both cases, the court held that
the statutory provision amounted to an arbitrary
deprivation because there was no connection between
the third party, the third party’s property and the debt
that was owed to the organ of state.
The same argument can be made in the context of
the lessor’s tacit hypothec (as extended to third
parties), although its constitutionality has not been
scrutinised by a court.114 Siphuma recognises the
similarities between the lessor’s tacit hypothec that
extends to third parties’ property and section 114 of
the Customs and Excise Act115 as questioned in FNB.116
He mentions that in both instances the right is
extended over property that does not belong to the
principle debtor. The same can, of course, be said of
section 118(3) of the Municipal Systems Act that
holds a new property owner liable for a debt he or she
did not incur.
A number of commentators have questioned the
forced transfer (or loss) of property rights that occurs
when the common law authorises such a transfer or
loss, for example the transfer of encroached upon
land, or the acquisition of ownership by acquisitive
prescription or the creation of a servitude of way of
necessity. These commentators all seem to argue that
if the common law rule is applied more or less strictly,
it should not cause arbitrary deprivation of property in
terms of section 25(1).117 In other words, if the
common law principles of property law cause ex lege or
non-consensual creation, loss, transfer, or amendment
 of property rights, it will probably establish a non-
arbitrary deprivation of property for purposes of section
25(1). This will occur only if the discretion is exercised
fairly strictly according to the requirements of the
common law, and would have to be exercised within
the limits of what the common law actually authorises.
Therefore, any deprivation resulting from the
interpretation or development of the common law will
not necessarily be arbitrary for purposes of section
25(1), provided that the common law requirements are
properly applied, especially when they include the
exercise of a judicial discretion to allow the deprivation
and the possibility of a judicial compensation award.

16.5 Expropriation of property

16.5.1 The meaning of expropriation of property

The authority for expropriation of property in South African law is found
in section 25(2) and (3) of the Constitution. Although section 25
authorises expropriation, the provision does not provide any
clarification regarding the meaning of the term expropriation. In this
regard, expropriation is usually defined in terms of how it differs from
deprivation of property. As we have already seen, in FNB the
Constitutional Court described expropriation of property as a subset of
deprivation in the sense that all expropriations are deprivations, but not
all deprivations are expropriations.118
A very important result of this description is that all limitations on
property rights that may result in constitutional infringement in terms
of section 25 must first comply with the requirements of section 25(1)
before it can be established whether the alleged contravention affects
sections 25(2) and (3).119 Therefore, in terms of the methodology
provided in FNB, even if the question in any given case relates
specifically to the possibility of an invalid expropriation in terms of
section 25(2) and (3), it must first comply with the test for deprivation of
property in terms of section 25(1).120 The result is that if the deprivation
is arbitrary and it cannot be justified, the enquiry stops there and the
law that causes the deprivation would be invalid. The question
concerning expropriation of property and whether the expropriation
complies with the requirements of section 25(2) and (3) would not arise
in the above-mentioned cases. However, if the deprivation is not
arbitrary or it is arbitrary but it can be justified, the question concerning
expropriation must be considered.
In October 2020, the government released another draft
Expropriation Bill.121 It is interesting to note that the Bill defines
‘expropriation’ as the ‘compulsory acquisition of property by an
expropriating authority or an organ of state upon request to an
expropriating authority’.122 This definition may impact on the non-
recognition of constructive expropriation in South African law. It
resembles the definition of expropriation provided in Agri SA v Minister
for Minerals and Energy.123 In this decision, the Constitutional Court
highlighted the distinction between deprivation and expropriation,
which may prove to answer the question whether the doctrine of
constructive expropriation could be developed in South African law.
More specifically, the Court held that ‘there is an overlap and no bold
line of demarcation between sections 25(1) and 25(2)’.124 Therefore,
deprivation and expropriation are generally defined with reference to
one another. Furthermore, ‘[t]here can be no expropriation in
circumstances where deprivation does not result in property being
acquired by the state’.125 This led the Court to consider whether the
deprivation in the particular case rose to the level of expropriation. In
the end, the Court held that ‘to prove expropriation, a claimant must
establish that the state has acquired the substance or core content of
what it was deprived of’.126 However, the state did not acquire any
mineral rights, including those of Sebenza, at the commencement of
the Mineral and Petroleum Resources Development Act.127 According to
the Court, the state, as the custodian of these resources, was merely a
facilitator or conduit through which broader and equitable access to
mineral and petroleum resources can be realised.128 Therefore,
expropriation and deprivation were clearly distinguished and state
acquisition was required in order for the state interference to result in
expropriation, similar to the definition of expropriation provided in the
2020 draft Expropriation Bill. The possibility of constructive
expropriation is specifically excluded in these instances.

16.5.2 Compensation for expropriation

Compensation for expropriation is authorised in South African law in
terms of section 25(2) and (3) of the Constitution.129 Section 25(2)(b)
makes it clear that where property is expropriated it is ‘subject to
compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected or
decided or approved by a court’. Section 25(3) explains further that:
[t]he amount of the compensation and the time and manner of payment must
be just and equitable, reflecting an equitable balance between the public
interest and the interests of those affected, having regard to all relevant
circumstances, including–
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and
(e) the purpose of the expropriation.

According to section 25(2)(b), three aspects are therefore important for

purposes of compensation for expropriation, namely the amount of
compensation, its time of payment and the manner in which the
payment of compensation is to take place. These three aspects can
either be agreed to by the parties involved, or approved or decided by a
court.130
In terms of the time and manner of payment of compensation,
section 25(2)(b) states that this should be just and equitable and that all
relevant circumstances should be considered in order to establish when
and how compensation should be paid. It has been stated that in order
for the time of payment of compensation to be just and equitable
according to sections 25(2) and (3), prompt payment should follow after
the expropriation has occurred.131 Regarding the manner of payment of
compensation, it is generally accepted that money will form the mode
of payment. However, it should in principle be possible that
compensation is paid in another form.132
The calculation of the amount of compensation is by far the most
controversial of the three aspects, and the most difficult to determine,
especially in so far as the factors in section 25(3) of the Constitution
relate to one another in determining just and equitable compensation.
Just and equitable compensation should reflect an equitable balance
between the public interest and the interests of those affected by the
expropriation. Moreover, the amount of compensation must be of such
a nature that all relevant circumstances are taken into consideration,
including (but not limited to) those factors listed in section 25(3).
Determining just and equitable compensation for expropriation is
generally a difficult task. This places the obligation on the courts to
determine just and equitable compensation in each individual case.
The task is exacerbated by the fact that the compensation provisions in
the Expropriation Act133 and the compensation provisions in the
Constitution are not aligned. The calculation of compensation in terms
of the 1975 Expropriation Act is essentially focused on market value.134
Land reform expropriations add a further dimension to the complicated
task of calculating compensation for expropriation.135
The rationale behind compensation for expropriation was explained
in Msiza v Director-General, Department of Rural Development and
Land Reform,136 where the Land Claims Court held that:
[c]ompensation, in terms of section 25, must first and foremost serve the public
interest. The monies to be paid to expropriated persons emanate from the
public purse and they are constitutionally designed to serve a discreet legal
purpose, not to compensate each and every possible potential loss of
commercial opportunity.137

Although compensation is primarily aimed at serving the public

interest, unlike the public interest/public purpose requirement for
expropriation of property,138 the compensation requirement does not
serve as the justification for the expropriation.139 In Minister of Minerals
and Energy v Agri South Africa140 Wallis JA held that ‘[i]f one looks at the
structure of s[ection] 25(2) of the Constitution it is more appropriate to
view compensation as a pre-requisite for a lawful expropriation and a
necessary consequence of an expropriation, rather than as a defining
characteristic serving to distinguish expropriations from other forms of
deprivation.’141 The use of the term ‘pre-requisite’ in the context of
compensation for expropriation is somewhat confusing.
Gildenhuys maintains that payment of compensation is not a
prerequisite for the vesting of ownership and distinguishes between the
validity of the expropriation and the acquisition or vesting of
ownership.142 He notes that compensation serves to replace the
expropriated property.143 For that reason, he emphasises the
replacement role of compensation as opposed to the justificatory role
that the public purpose/public interest requirement plays in
expropriation law.144 It is clear that the expropriation (and the vesting of
ownership of the expropriated property in the state) can take place
before compensation is actually paid.
The decision of Msiza v Director-General, Department of Rural
Development and Land Reform 145 also raises the question of
determining the amount of compensation for a land reform
expropriation in terms of section 25(3) of the Constitution. The decision
questions the determination of the amount of compensation in terms of
section 25. The Court emphasised that market value should not be
considered as the most important factor in determining compensation
for expropriation in terms of section 25(3). In essence, a two-step
approach should be adopted. Firstly, it should be determined what
market value is, and secondly the amount should be equitably adjusted.
In Msiza, the Land Claims Court held that market value did not strike an
equitable balance and the Court consequently adjusted market value
downwards. The Supreme Court of Appeal’s decision in Uys N.O. and
Another v Msiza and Others,146 is an appeal against a Land Claims Court
judgment decided in 2016.147 In the Land Claims Court, Ngcukaitobi
and Canca AJJ ordered that an amount of R1 500 000 compensation be
paid to the owner of the property expropriated in terms of section 23(1)
of the Land Reform (Labour Tenants) Act.148 The SCA deviated from the
approach adopted in the Land Claims Court to the determination of
compensation for expropriation for land reform purposes and
essentially awarded market value compensation.
The Land Claims Court judgment in Msiza appropriately illustrates
how courts will go about determining just and equitable compensation
according to the requirements in section 25(3) of the Constitution. The
calculation of compensation for expropriation as adopted in Msiza
seems sensible. The way in which the Land Claims Court engaged with
all the relevant factors in section 25(3) is particularly encouraging in
light of the criticisms often levelled against courts for focusing too much
on market value.149 The Land Claims Court seems to have been sensitive
to the criticism of singling out market value as the determining factor in
the particular case, and should be applauded in that regard, especially
for the way in which the Court adjusted market value downwards. It is
clear that the Constitution has allowed for the determination of
compensation for expropriation on the basis of just and equitable
compensation instead of compensation based on market value.
According to Du Plessis, this should have a direct bearing on the
transformative impact of the expropriation clause in terms of land
reform.150 She maintains that courts have to be aware of what they are
protecting in the process of awarding compensation. Compensation,
therefore, may be a way of ensuring redistributive justice. This will
create the possibility of moving away from what Du Plessis calls ‘market
value centred’ and ‘scientific’ ways of determining compensation,
based on a particular legal culture, towards the calculation of
compensation for expropriation that is based on a transformative,
constitutional legal culture within expropriation law. She introduces the
idea of a ‘transformative interpretation of the compensation
requirement in the post-apartheid context’151 and concludes that there
are various considerations that the just and equitable requirement in
relation to compensation requires in the new constitutional
dispensation.152
The just and equitable requirement may necessitate an inquiry that
a narrow market-driven determination of compensation would
disregard. Determining the amount of compensation requires a
contextualised judgment, which should be sensitive to the facts in the
particular case and determining compensation cannot be an abstract
analysis.153 This should include the consideration of the factors listed in
section 25, but courts are not limited to consider only those factors.
Courts should, however, give special attention to land reform
aspirations.154

Are the courts willing to award below market

or nil compensation for land reform
expropriations?
The Msiza judgments indirectly prompts the question
whether land reform alone is a sufficient justification
for a significant reduction of market value or even nil
compensation. In Du Toit v Minister of Transport155 the
Constitutional Court justified a significant reduction in
the market value of the gravel because it held that the
public interest in building of roads was important for
the economy and the well-being of the improvement of
the road system in general. This interpretation of the
purpose of the expropriation in relation to determining
compensation has been criticised. Van der Walt argues
that the interpretation of this factor in the calculation
of compensation in Du Toit is unconvincing from a
practical and economic sense.156 Furthermore,
expropriation for land reform purposes without
compensation will in most instances be
unconstitutional. This is because all the factors have to
be considered and ‘land reform should therefore not
on its own imply that compensation is not required’.157
Du Plessis asserts that courts dealing with this
factor in the determination of compensation tend to
confuse the requirement of public purpose/public
interest and public purpose as a factor in calculating
compensation for expropriation.158 She uses the
examples of Du Toit and Mhlanganisweni Community v
Minister of Rural Development and Land Reform and
Others (or MalaMala)159 to argue that the
interpretation of public purpose when determining
compensation for expropriation is misconstrued in both
cases. In Du Toit, the Constitutional Court’s reasoning
is problematic because it would mean that in all cases
where the expropriatee has property necessary for the
upkeep of national resources (or assets), he or she
can expect compensation that is below market value
(even significantly so). The decision in MalaMala is
disconcerting because it would mean that where
property is expropriated for land reform purposes, it
should be treated the same as non-land reform
expropriations, with the potential that the state may
have to pay full market value for those properties in all
instances. She considers both interpretations unfair
and confusing; Du Toit because one individual is
unduly burdened with the task of paying for the
upholding and maintenance of a national asset that
should be borne by the general tax-paying public, and
MalaMala because ‘in view of the history of the
privileged land ownership in South Africa and the
constitutional imperative to transform, one should
acknowledge that market value cannot be treated as a
strict requirement’.160
An alternative approach to the role of public
purpose as a factor in determining compensation may
be to draw a distinction between ‘run-of-the-mill’ or
‘business-as-usual’ expropriations and land reform
expropriations.161 In non-land reform expropriations,
the payment of market value may reflect just and
equitable compensation as market value may strike the
most appropriate balance between the interests of the
public and the landowner affected by the
expropriation. This is provided that there are no other
factors that nonetheless justify a downward adjustment
of market value in these instances. In land reform
expropriations, where there may be other
considerations at play, and the protection of existing
property rights must be assessed in light of the
promotion of social justice and transformation, a
different interpretation of public purpose when
calculating just and equitable compensation may be
required. Reconciling the opposing claims in a just and
equitable manner, may require a more contextual,
balancing approach that is sensitive to the task of
promoting the spirit, purport and objects of the Bill of
Rights.162
Unfortunately, the Supreme Court of Appeal
decision in Msiza highlights that courts essentially still
follow a predominantly ‘market value centred’
approach when determining compensation for
expropriation, and find it difficult to deviate from that
standard. Stated differently, when considering the
factors (other than market value) in section 25, courts
struggle to find adequate justification for reducing
market value, and almost instinctively revert to market
value. This is especially interesting considering the
recent debate around expropriation without
compensation. If the practice is to award market value,
even in land reform expropriations, it becomes difficult
to accept the theoretical arguments asserting that
compensation below market value is possible within
the current legal framework of section 25(2).
A pertinent question arising from the SCA Msiza
judgment is: Is there a missing link between the
rhetoric that expropriation below market value is
possible, and the actual practice playing itself out in
courts? More specifically, the SCA decision calls into
question the theoretical argument that compensation
below market value is in principle possible. It has been
argued that just and equitable compensation may
necessitate an inquiry which a narrow market-driven
determination of compensation would disregard.163
There are various considerations in the just and
equitable requirement for compensation under the new
constitutional dispensation.164 Therefore, determining
the quantum of compensation necessitates a
contextualised judgment, which should be sensitive to
the facts in the particular case – it cannot be an
abstract analysis. In this regard, while consideration
should be given to the factors listed in section 25,
courts are not limited to those factors. They should pay
special attention to land reform aspirations.165 Msiza
LCC could possibly have been seen as a sensible
approach to the application of the section 25(3)
factors in determining compensation for expropriation
in the land reform context. It certainly purports to be a
different approach to the one which singles out market
value as the determining factor, especially since the
Land Claims Court ordered compensation at below
market value. This decision was overturned by the SCA
with the result that it raises serious doubts regarding
the contention that compensation below market value
is possible.
Arguably, the outcome reached by the SCA shows
that courts still appear to award compensation at
market value, even in the context of land reform
expropriations. Perhaps this judgment presents a
missed opportunity for the courts definitively to provide
clarity on the question of whether expropriation below
market value, or even nil compensation, can be
justified in the land reform context, and if so, how such
an adjustment from market value should take place
within the current legal framework. The case certainly
 proves that it is difficult to justify why a reduction in
market value is possible even though, in theory, the law
allows for such a possibility. The same argument is
made by Marais, where he submits that Msiza SCA
appears to suggest that a downward adjustment of
compensation at market value, purely on the basis of
land reform, is impermissible.166

16.5.3 Expropriation without compensation

In order to implement the land reform provisions of section 25,
Parliament has passed a wide range of statutes over the past 25 years.
These include the Provision of Land and Assistance Act;167 the
Restitution of Land Rights Act;168 the Land Reform (Labour Tenants)
Act;169 the Interim Protection of Informal Land Rights Act;170 the
Communal Property Associations Act;171 ESTA;172 and the Communal
Land Rights Act.173
Unfortunately, this statutory framework has not been implemented
as successfully as it could have been. Despite setting a target of
redistributing 30% of all commercial farmland by 1999, for example, less
than 10% was redistributed by 2018.174 An important consequence of
this failure, the Presidential Advisory Committee on Land Reform stated
in its Final Report, is that the land reform programme has not
established ‘a new generation of sustainable household, small scale and
commercial black farmers’.175
Some commentators have argued that one of the reasons the land
reform programme has failed is the fact that section 25(2) subjects the
expropriation of land to the payment of compensation. This
constitutional provision not only makes it difficult for the state to
acquire land for land reform purposes in a cost-effective manner, but
also legitimises and rewards the colonial and apartheid dispossession
of land. It thus frustrates the redistribution of land and the restoration of
dignity of black South Africans. In order to address these concerns, it is
argued further, section 25 should be amended to make provision for
expropriation without compensation in specific circumstances.176
This argument was accepted by the African National Congress at its
52nd Elective Conference in Nasrec in 2017 and by the National
Assembly in 2018 when it resolved that the Constitutional Review
Committee should investigate the possibility of amending section 25 to
explicitly provide for expropriation without compensation as a
legitimate option for land reform.177 Following an intensive public
participation programme, the Constitutional Review Committee did
recommend this course of action178 and its recommendation was
accepted by the National Assembly. In order to take the process further,
the National Assembly appointed an ad hoc committee which
published a daft Constitutional Amendment Bill in 2019.179
If this draft Bill is passed in its current form, the amended section
25(1) to (3A) will read as follows (the amendments are highlighted in
italics):
(1) No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application:
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and
manner of payment of which have either been agreed to by those
affected or decided or approved by a court: Provided that in
accordance with subsection (3A) a court may, where land and any
improvement thereon are expropriated for the purpose of land reform,
determine that the amount of compensation is nil.
(3) The amount of the compensation as contemplated in subsection 2(b), and
the time and manner of payment must be just and equitable, reflecting an
equitable balance between the public interest and the interests of those
affected, having regard to all relevant circumstances, including:
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(3A) National legislation must, subject to subsections (2) and (3), set out specific
circumstances where a court may determine that the amount of compensation
is nil.
As these amendments clearly indicate, the amended section 25 itself
does not indicate the specific circumstances where the amount of
compensation may be nil. Instead, it provides that these specific
circumstances must be identified in national legislation. Some of these
specific circumstances are identified in the 2020 draft Expropriation
Bill.180 The purpose of this draft Bill is to give effect to the proposed
constitutional amendment by, inter alia, identifying the circumstances
in which nil compensation may be awarded.
These circumstances are set out in clause 12(3) of the Bill, which
reads as follows:
It may be just and equitable for nil compensation to be paid where land is
expropriated in the public interest, having regard to all relevant circumstances,
including but not limited to

(a) where the land is not being used and the owner’s main purpose is not to
develop the land or use it to generate income, but to benefit from
appreciation of its market value;
(b) where an organ of state holds land that it is not using for its core functions
and is not reasonably likely to require the land for its future activities in
that regard, and the organ of state acquired the land for no consideration;
(c) notwithstanding registration of ownership in terms of the Deeds Registries
Act, 1937 …, where an owner has abandoned the land by failing to exercise
control over it;
(d) where the market value of the land is equivalent to, or less than, the
present value of direct state investment or subsidy in the acquisition and
beneficial capital improvement of the land; and
(e) when the nature or condition of the property poses a health, safety or
physical risk to persons or other property.

Analysis of the draft Constitution Eighteenth

Amendment Bill
In an article published in the Mail & Guardian
newspaper, Advocate Tembeka Ngcukaitobi carefully
analysed the draft Constitution Eighteenth Amendment
Bill. In his analysis, he highlights key aspects of the
amendments.181
 First, he points out that the amendments are
ambiguous:
What does the proviso [to section 25(2)(b)] mean?

The ultimate justification for the amendment was to “make

explicit the implicit”, but does it? On the most sensible reading,
the proposed section means that a court may determine that in a
particular case, land or improvements on land may be
expropriated with no compensation. But when will this be the
case? How does an owner of land know that their land is liable to
be taken with no compensation? These questions are not
answered in the proviso, but in another proposed amendment, in
subsection [3A], which enables national legislation to be passed
to set out these instances.

Second, he points out that the amendments apply only

to land and improvements on land.
The second facet of the amendment is the category of the
property to which it applies. The amendment is limited to ‘land’
and ‘improvements on land’. Plainly, it excludes other forms of
property, such as stocks, pensions, cash and credit. In limiting the
class of properties to land, the amendment follows the proposal
of the ANC at its December 2017 Nasrec elective conference and
the resolution of Parliament, adopted in February 2018 prior to
the national consultative hearings on the necessity for the
amendment … Many will view this in a positive light. Yet by
excising from the scope of the amendment other forms of
property the implications may turn out to be negative.

The argument in favour of retaining the present formulation has

always been founded on the flexibility of the notion of ‘just and
equitable’. Particularly, it has been argued that a compensation
regime based on justice and equity factors in history, present use
and purpose of the acquisition. This model may allow for above
market-based compensation, for instance to land holders of
Xolobeni, expropriated to make way for mining, while it would
contemplate for below market value compensation to commercial
land holders expropriated to make way for low cost housing. By
fixing the target of ‘nil compensation’ to land, the consequences
might set the default of market-based compensation for all other
categories of property.

This is a retrogressive step in a constitutional dispensation whose

aim is to resolve unfair patterns of property holding. When one
takes into account that land taken in 1913 has since
transmogrified into stocks and other items of value, focusing on
land and improvements on it might only scratch the surface of
property relations, leaving the property regime unchanged.

Third, he points out that the amendments apply only to

land taken for land reform.
Although not all land is liable for compulsory taking with no
compensation, the proviso is even narrower. Only those categories
of land taken for ‘the purpose of land reform’ can be taken for no
compensation. ‘Land reform’ is not a term of art. But it is taken
generally to refer to three pillars: land redistribution, restitution of
land and land tenure security. Recently, some commentators have
added ‘land development’ as the fourth pillar. Importantly,
however, the amendment does not use the constitutional phrase
of ‘public interest’. Instead, it reduces the scope of public interest
by restricting the application of the ‘nil compensation’ clause to
land taken for land reform. If land is needed for other public
interest reasons, just and equitable compensation would need to
be paid.

Last, he points out that the amendments uphold the

rule of law.
Finally, the amendment returns into the spotlight the rule of law.
The centrality of courts as arbiters of disputes in society is
entrenched in the Constitution. Not only is the law supreme,
judicial pronouncements are final and binding on other organs of
state. The amendment affirms this.

Only a court may decide whether compensation is to be paid. A

flexible standard that is just and equitable should still be
applicable in cases of disputes over compensation. Unless
legislation further elucidates the content of justice and equity,
courts will operate from a blank slate. Many will view this as
slowing down land reform, because disputes about compensation
are notoriously slow to resolve in courts. Yet the rule of law is a
crucial safeguard against the rule of the strong.

Another important element of the rule of law is absence of wide

executive discretion. The amendment curtails this by leaving the
contours of the law to the legislature, which should define three
important aspects: Which land, for what payment and for what
purpose? Because ours is a representative government, not only
should citizens participate in the constitutional amendment
process, they should also focus their attention on the subsidiary
legislation as much will turn on its content.
16.6 Land reform: Distinguishing between redistribution
and restitution of land
Land reform is embedded in the property clause in the South African
Constitution.182 Pienaar explains that the phrase ‘land reform’ may have
different meanings depending on the context and jurisdiction for which
it is employed.183 However, despite the context and location- specific
nature of land reform, any definition of the phrase must be flexible and
adaptable, so that it is possible to undergo different phases of land
reform at different times. In South Africa, the land reform programme
had to be tailor-made to reflect (or perhaps, more importantly, correct)
the racially based land measures applicable in the pre-constitutional
era (and its impact on South Africa). When South Africa became a
democratic state in 1994, transformation from the discriminatory and
oppressive system of apartheid to a system of rule by the majority in a
new constitutional dispensation required wholesale changes in land
policies and legislation.184 At the core of the issues that surrounded the
transformation was the ‘proposed rectification of the dispossession of
many black South Africans’ property which occurred in order to fulfil
the visions of the segregation policies’.185 Of the major changes following
the political revolution, land was one of the contentious issues that the
drafters of the new Constitution sought to address.186
An historical account of dispossession of land in South Africa is
essential in order to answer the question of why land reform is
necessary and therefore an integral part of the property clause.187 If one
considers the history of land dispossession in South Africa,188 of which
many accounts have been given,189 it is immediately clear why a
property clause was necessary in the new constitutional dispensation.
Cousins and Walker provide a valuable timeline setting out the
legislative and policy developments in South Africa’s history of land
dispossession from 1910–2014.190 During the apartheid period,
dispossession was engineered by the apartheid processes of
simultaneously restricting black urbanisation and also the
proletarianisation of black people.191 Black subsistence farmers and
community members from all over the Union and Republic were drawn
to the cities by work opportunities, and pushed away from the
hinterland due to the diminishing of ownership of indigenous land.
Influx control and pass laws further regulated the movement of black
people during apartheid. The joint push and pull effect of these
processes meant that the dispossessed black African hovered between
an urban and rural existence.
‘Bantustans’ or ‘native reserves’ were areas of land in rural South
Africa designated by the apartheid government as separate spaces for
black Africans. Black people were relocated here after a series of violent
successors took place following the passing of the Natives Land Act of
1913 and its various successors. Before the formal creation of the
Bantustans, reserves were allocated to Africans during the Cape
Colony-era and the subsequent Union of South Africa. No effort was
made to uplift the dispossessed as a class of self-supporting farmers.
Instead, the Bantustans served as ‘labour reserves’ or reservoirs
supplying cheap, migratory labour to the mining-based capitalist
economy.192 Claassens sets out the legal and executive consolidation of
Bantustans and describes how the South African Development Trust
was deployed after the election of the National Party in 1948 to execute
forced removals and define areas for blacks-only and whites-only
occupation.193
Pienaar explains that during the racially based land control system
in South Africa, ‘common-law ownership was mainly reserved for white
persons, with lesser rights reserved for black persons (and other non-
whites)’.194 Various pieces of legislation during the apartheid period
were promulgated to ensure that this land control system would be
enforced.195 Therefore, broadly speaking, two tenure forms existed
during the period of reform. On the one hand, common law ownership
and rights, and, on the other, customary law rights and communal
tenure. In the latter case, land was held in trust on behalf of black
communities, while simultaneously allowing for various permit-based
interests to be operational.196 The land administration system in South
Africa currently has largely developed in line with private, individual
ownership.197 It is on this basis that Pienaar argues that:
 [l]and reform is one critically important sector within the arena of property law
that is integral to reversing the inequitable legacy and instrumental in
transforming society at large. However, land reform alone is not enough to
effect all of the changes that are needed. For this, systemic and institutional
reforms – that have nothing to do with the transfer of land as such – are
required. Hand-in-hand, the restructuring of property law (systemic and
institutional) and land reform measures and designs may bring about the
changes so desperately needed.198

Land reform is therefore one way in which fairness and equality in

property distribution in South Africa can be achieved.199 The notion of
land reform is often defined in the context of broadening access to
(agricultural) land – in the sense of redistribution of property.200
However, as is evident from the three sub-programmes in South Africa,
land reform is a wider notion than land redistribution only. A broader,
more all-encompassing land reform programme was needed in South
Africa. It could therefore not simply be about redistribution of mostly
agricultural land. It also had to be about ensuring restoration of land
that was previously dispossessed and making sure that insecure rights
(including customary land rights) are made secure.
Land reform goals are usually aligned with the methods that are
used to achieve those goals. However, Hall notes that ‘[d]isagreement
continues over the object of land reform – what it should do: whether
this is the expansion of rural settlement options and diversification of
livelihoods, the creation in commercial farming areas of a small-scale
farming class, the racialisation of the large commercial farming sector,
or some combination of these’.201 Pienaar in turn argues that the
question of what land reform is, and how it is achieved, is directly linked
to why it is necessary to have land reform in the first place. On this
basis, she defines land reform as ‘initiatives, embodied in legislative,
policy and other measures, constituting actions and mechanisms aimed
at broadening access to land, improving security of tenure and restoring
land or rights in land – all of which have become necessary because of
the historic racial and inequitable approach to land in South Africa’.202
Land redistribution essentially entails putting mechanisms
(legislative, policy and other measures) in place to ensure broader
access to land. Section 25(5) of the Constitution provides the impetus to
ensure that land is redistributed in South Africa. In this regard,
‘government has a facilitative role to play by providing financial support
where necessary, acquiring land on the basis of the willing-buyer-
willing-seller principle and waiting for potential beneficiaries to
approach government and indicate their needs and demands’.203 In
terms of the policies and legislation that are geared towards land
redistribution, both Pienaar and Hall pick up on the shift in focus from
1990 to date of the policies for redistribution in South Africa and the
impact that this shift has had on the overall success of the project of
land redistribution.204 Pienaar notes that ‘[w]hereas initial redistribution
endeavours centred on the poorest of the poor [in the sense of poverty
alleviation], a gradual shift occurred in favour of more resourced and
more competent beneficiaries, with the aim of enabling commercial
farming with greater emphasis on efficiency’.205 Similarly, Hall points out
that the redistribution programme in South Africa has undergone
substantial changes, especially regarding who should benefit from the
reform and where the focus of the programme should fall.206 In this
respect, she identifies a myriad of problems with the government’s land
redistribution policies and legislation. In the first place, there is a
missing link about what land reform generally, and land redistribution,
more specifically, should achieve, how to achieve it and where (rural or
urban land) to prioritise the strategy of land redistribution.207 Therefore,
the agrarian policy was, in Hall’s view, not designed to address the
realities of rural South Africa.208
Land restitution, as a part of the promised transformation at the
advent of democracy, is primarily underpinned by the Constitution.209
The Restitution of Land Rights Act was initially promulgated to give
effect to the constitutional provisions on land restitution.210 The primary
aim of the restitution programme was to restore land (or provide other
redress) for those who were dispossessed of land unfairly as a result of
racially discriminatory laws or practices after 1913.211 While the focus of
the restitution programme was initially on rural land, it was clear that
the impact of the Group Areas Act 41 of 1950 on urban land
dispossession required the initial vision of restitution to be wider than
simply agrarian reform.212 In contrast, land redistribution is essentially a
wider programme that was undertaken to provide for the needs of
landless people more generally, especially those that did not qualify for
more specific claims identified under the restitution programme.
Therefore, ‘[w]hile the land redistribution programme is discretionary,
restitution is a rights-based programme in that eligible claimants have
the right to restoration of, or compensation for, land of which they were
dispossessed’.213 However, both the restitution and redistribution
programmes resulted from a negotiated settlement, which meant that
in the process of navigating the rationale of both these programmes it
should be remembered that a variety of interests were taken into
account. This is evident from the incorporation of the willing-buyer-
willing-seller principle that resulted in market-based approach in both
programmes.214
Hall warns that when considering the successes or failures of the
land restitution programme in South Africa, there are numerous
variables to take into account.215 For one, it is hard to indicate whether
the restitution programme was (or is) successful because there are
different types of claims that could be lodged and one should be careful
not to fall into the trap of comparing apples with pears; one would
essentially be comparing ‘those involving individual households with
those involving entire communities; those pertaining to small urban
plots with those applying to large swathes of high value agricultural
land; those involving cash compensation as recognition of loss and
suffering with those involving the restoration of land and related
resources’.216 One should also be mindful of the multiple ways in which
the rural claims are counted, which often results in the fact that
statistics are essentially unreliable. Moreover, the implementation of
restitution claims is made difficult because the negotiated settlement
that resulted in the constitutional protection of property rights, very
often makes the sale of the land equivalent to market-related prices.
In instances other than expropriation of property, restitution is
costly and reliant on the co-operation of landowners. As Hall notes,
‘[t]he process provides owners with substantial price-setting powers
and, in the absence of expropriation, an effective veto on the restoration
of land to claimants’.217 In this regard, it is important to note that the
1994 Restitution Act was later amended by the Restitution of Land
Rights Amendment Act.218 Interestingly, the Amendment Act modified
section 42A of the 1994 Act to allow for the Minister of Land Affairs to
expropriate property for purposes of restitution. Hall argues that the
constraints on land restitution will remain unless the state uses its
power to expropriate in this context.219 In this regard, the current
debates around amending section 25 to allow for expropriation without
compensation become relevant. Given the poor track record of actual
implementation of the state’s power to expropriate in this context, it
remains questionable whether it is the political will to expropriate
property, or compensation for expropriation, that is standing in the way
of expropriation for land restitution purposes.
In concluding, it is clear that the business of land reform is, in the
words of Pienaar, intricate, time-consuming and essentially ongoing.220
In the context of land restitution and redistribution more specifically, it
seems that some of the goals and aims are contradictory and this has
certainly impacted on the kind and content of policy that was drafted
for these sub-programmes. This undoubtedly impacted (and continues
to impact) on the ultimate efficacy of the programmes. Moreover, the
endeavour to ensure the all-encompassing nature of land reform has
not always proved effective. For one, the focus in both sub-programmes
seems ultimately to be skewed heavily in favour of agrarian reform, and
then even in this context, government seems to be shooting at a moving
target. Although reform (from the perspective of redistribution and
restitution) in the context of rural land is obviously important, there is
increasingly the need for land reform in urban and peri-urban areas.221
The transition from vastly unequal land distribution effected by years of
colonial and apartheid separation mechanisms towards more equitable
land access and more equal land ownership patterns (if ownership
transfer is indeed the goal), will need to be facilitated (and prioritised)
by the state in the laws that it enacts.

SUMMARY

Apart from being the longest right in the Bill of Rights, section 25 of the
Constitution is also the most complex and controversial. This is because
it has been allocated the unenviable task of reconciling two conflicting
goals. On the one hand, section 25 is aimed at protecting existing
private property rights and thus has the potential to entrench the
unequal distribution of property in South Africa and, consequently, to
preserve white privilege. On the other hand, section 25 is aimed at
remedying the dispossession of African land during the colonial and
apartheid eras and thus has the potential to perpetrate new injustices,
to promote conflict and to undermine confidence in the legal and
economic system.
As this chapter demonstrates, the Constitutional Court has sought to
reconcile these two goals in a number of different ways. Among the
most important of these are the following:
• First, the Court has redefined the common law concept of
ownership in a manner that emphasises the obligations the right of
ownership imposes on an owner and not only the entitlements or
powers. An important consequence of this approach is that property
rights may no longer be viewed as absolute or unrestricted. Instead,
they must now be understood as inherently limited or restricted
rights. In its judgment in Daniels, the Court took this approach a
step further when it found that property clause imposes both
negative and positive obligations on an owner.
• Second, the Court has adopted a variable test for determining
whether a deprivation of property is arbitrary or not and thus
reserved for itself a wide discretion to decide each constitutional
property dispute on a case-by-case basis. The variable test adopted
by the Court in FNB provides that in some cases a deprivation
simply has to be rational, while in others it has to be proportional or
at least close to proportional. When it comes to determining which
standard must be applied, however, a multiplicity of relations and a
number of factors must be taken into account, including the nature
of the right, the nature of the property and the extent of the
deprivation.
• Third, the Court has adopted a narrow definition of expropriation as
the compulsory acquisition of property by the state. An important
consequence of this approach is that the circumstances in which the
state is required to pay compensation for expropriating property are
 narrow. It is not required to pay compensation when it takes away
property, but only when it takes away and also acquires that
property. Despite reducing the compensatory burden that section
25 imposes on the state, this obligation has proved to be very
controversial. This is because it is not entirely clear in which
circumstances the state is entitled to pay less than market value
compensation or even nil compensation. In order to address this
uncertainty, the National Assembly has resolved to amend section
25 to expressly provide for the payment in nil compensation in those
circumstances identified in national legislation. These amendments
and their likely consequences are also explored in this chapter.

1 Act 27 of 1913.
2 Plaatje, ST (2007) Native Life in South Africa: Past and Present 21.
3 (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017).
4 See Van der Walt, AJ (2011) Constitutional Property Law 3rd ed 1–2.
5 Mostert, H (2010) Engaged citizenship and the enabling state as factors determining the
interference parameter of property: A comparison of German and South African law South
African Law Journal 127(2):238–73 at 239.
6 Section 28 of the interim Constitution provided that ‘(1) every person shall have the right to
acquire and hold rights in property and, to the extent that the nature of the rights permits,
to dispose of such rights. (2) No deprivation of any rights in property shall be permitted
otherwise than in accordance with a law. (3) Where any rights in property are expropriated
pursuant to a law referred to in subsection (2), such expropriation shall be permissible for
public purposes only and shall be subject to the payment of agreed compensation or,
failing agreement, to the payment of such compensation and within such period as may be
determined by a court of law as just and equitable, taking into account all relevant factors,
including, in the case of the determination of compensation, the use to which the property
is being put, the history of its acquisition, its market value, the value of the investments in it
by those affected and the interests of those affected’. See further Van der Walt (2011) 17.
7 Van der Walt (2011) 34–42; Currie, I and De Waal, J (2013) The Bill of Rights handbook 6th
ed 534.
8 This idea that ownership of property is absolute has been contested for many years. Many
property theorists have contributed substantially to the debates around a changed idea of
ownership in modern times. For some of these contributions, see Visser, DP (1985) The
“absoluteness” of ownership: The South African common law in perspective Acta Juridica
39–52; Birks, P (1985) The Roman law concept of dominium and the idea of absolute
ownership Acta Juridica 1–38; Van der Walt, AJ and Kleyn, DG ‘Duplex dominium: The
history and significance of the concept of divided ownership’ in Visser, DP (ed) (1989)
Essays on the History of Law 213–14; Van der Walt, AJ and Dhliwayo, P (2017) The notion of
absolute and exclusive ownership: A doctrinal analysis South African Law Journal
134(1):34–52; Dhliwayo, P (2015) A constitutional analysis of access rights that limit
 landowners’ right to exclude (unpublished LLD dissertation Stellenbosch University 2015);
Van der Walt, AJ (2015) Sharing servitudes European Property LJ 4(3):162–222. However, it
should be noted that the constitutional notion of ‘property’ is in any event wider than the
private law concept of ownership. See Reflect-All 1025 CC and Others v MEC for Public
Transport, Roads and Works, Gauteng Provincial Government and Another (CCT 110/08)
[2009] ZACC 24; 2009 (6) SA 391 (CC); 2010 (1) BCLR 61 (CC) (27 August 2009) para 32;
Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape and Others
(CCT 216/14) [2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9) BCLR 1052 (CC) (30 June
2015) para 104. See also Rautenbach, IM (2015) Dealing with the social dimensions of
property Tydskrif vir die Suid-Afrikaanse Reg 825–29; Van der Walt, AJ (2016) Section 25
vortices (part 1) Tydskrif vir die Suid-Afrikaanse Reg 3:412–27 at 416–19; Van der, AJ Walt
(2016) Section 25 vortices (part 2) Tydskrif vir die Suid-Afrikaanse Reg 4:597–621 at 599–
605; Marais, EJ (2016) Expanding the contours of the constitutional property concept
Tydskrif vir die Suid-Afrikaanse Reg 576–92; Swanepoel, J (2016) Constitutional property
law in Central Eastern European jurisdictions: A comparative analysis (unpublished LLD
dissertation Stellenbosch University 2016) 211–20; Badenhorst, P and Young, C (2017) The
notion of constitutional property in South Africa: An analysis of the Constitutional Court’s
approach in Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape
2015 (6) SA 125 (CC) Stellenbosch Law Review 28(1):26–46 at 40–5; Du Plessis, M and
Palmer, T (2018) Property rights and their continued open-endedness – A critical
discussion of Shoprite and the Constitutional Court’s property clause jurisprudence
Stellenbosch Law Review 29(1):73–89 at 86–7.
9 Singer, J (2000) The edges of the field: Lessons on the Obligations of Ownership 76.
10 Van der Walt, AJ ‘The future of common law landownership’ in Van der Walt, AJ (ed) Land
reform and the future of landownership in South Africa (1991) 21–35 at 31; Van der Walt, AJ
(1992) Roman-Dutch and environmental land-use control South African Public Law
1(11):4; Van der Walt, AJ (1992) The South African law of ownership: A historical and
philosophical perspective De Jure 25:446–457 at 447.
11 Johannesburg Municipal Council v Rand Townships Registrar and Others 1910 TS 1314
1319; Chetty v Naidoo 1974 (3) SA 13 (A) 20; Gien v Gien 1979 (2) SA 1113 (T) 1120.
12 Rand Townships Registrar 1319.
13 Dhliwayo, P (2015) A constitutional analysis of access rights that limit landowners’ right to
exclude (LLB, Stellenbosch University 2015) 95.
14 Van der Walt, AJ and Dhliwayo, P (2017) The notion of absolute and exclusive ownership: A
doctrinal analysis South African Law Journal 134(1):49.
15 Van der Walt, AJ (1999) Property rights and hierarchies of power: a critical evaluation of
land-reform policy in South Africa Koers: Bulletin for Christian Scholarship 64(2/3):259–94
at 261–3.
16 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA
217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004).
17 Act 19 of 1998.
18 S 6(1) of PIE.
19 S 6(3)(a) of PIE.
20 S 6(3)(b) of PIE.
21 S 6(3)(c) of PIE.
22 Port Elizabeth Municipality para 59.
23 Port Elizabeth Municipality para 23.
24 Roux, T (2013) The politics of principle: The first South African Constitutional Court, 1995–
2005 327. Roux mentions that other judgments in the context of property rights also show
the same trend, for example First National Bank of SA Ltd t/a Wesbank v Commissioner,
South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of
Finance (CCT19/01) [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) (16 May
2002) and Government of the Republic of South Africa and Others v Grootboom and Others
(CCT11/00) [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (4 October
2000).
25 Roux (2013) 326.
26 (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017).
27 Act 62 of 1997.
28 S 6 of ESTA.
29 S 5 of ESTA.
30 Daniels para 23.
31 Daniels para 31.
32 Daniels para 32.
33 Daniels para 32.
34 Daniels para 37.
35 Daniels para 37.
36 Daniels para 49.
37 Daniels para 136.
38 Daniels para 137.
39 Singer (2000) 10.
40 Singer (2000) 10–11.
41 Singer (2000) 36–7.
42 Singer (2000) 27.
43 Singer (2000) 17.
44 Singer (2000) 36.
45 Singer (2000) 32.
46 Underkuffler, LS (2003) The idea of property: Its Meaning and Power 3.
47 Daniels para 36.
48 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service
and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (CCT 19/01)
[2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) para 46.
49 First National Bank para 57.
50 First National Bank para 60.
51 First National Bank para 58.
52 First National Bank para 59.
53 For an exposition of the distinction between deprivations and expropriations, see Harksen
v Lane NO (CCT 9/97) [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 ( 11) BCLR 1489 (CC)
para 33; First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (CCT
19/01) [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (CC) para 46. See further
Van der Walt, AJ (2004) Striving for a better interpretation – A critical reflection on the
 Constitutional Court’s Harksen and FNB decisions on the property clause South African
Law Journal 121:854–878 873; Van der Walt, AJ (2005) Retreating from the FNB arbitrariness
test already? Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo
City Municipality; Transfer Rights Action Campaign v MEC for Local Government and
Housing, Gauteng South African Law Journal 123:75–89 77; Van der Walt, AJ (2011)
Constitutional property law 3rd ed 339–341; Marais, EJ (2015) When does state interference
with property (now) amount to expropriation? An analysis of the Agri SA court’s state
acquisition requirement (Part I) Potchefstroom Electronic Law Journal 18(29):2982–3031
2985.
54 Van der Walt (2011) 347. See also Slade, BV (2016) Compensation for what? An analysis of
the outcome in Arun Property Development (Pty) Ltd v Cape Town City PELJ 19:1–25 20;
Marais, EJ and Maree, PJH (2016) At the intersection between expropriation law and
administrative law: Two critical views on the Constitutional Court’s Arun judgment PELJ
19:1–54 (especially footnote 76); Van Wyk, J (2016) Planning and Arun’s (not so straight and
narrow) roads PELJ 19:1–29 17.
55 Van der Walt (2011) 351.
56 Slade (2016) 1–25 20.
57 2002 (4) SA 786 (CC).
58 If the FNB methodology is followed strictly, the consequence will be that the arbitrary
deprivation (or deprivation that has excessive effects) will be declared invalid. See Van der
Walt (2011) 272; Bezuidenhout, K (2014) Compensation for excessive but otherwise lawful
regulatory state action (unpublished LLD dissertation) Stellenbosch University 44.
59 Bezuidenhout (2014) 251
60 Dugard, J and Seme, N (2018) Property rights in court: an examination of judicial attempts
to settle section 25’s balancing act re restitution and expropriation South African Journal on
Human Rights 34:1, 33–56.
61 Dugard and Seme (2018) 43–44.
62 Dugard and Seme 44.
63 First National Bank.
64 First National Bank para 57.
65 First National Bank para 57.
66 (CCT 57/03) [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC) (6 October 2004).
67 Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v
Buffalo city Municipality and others; Transfer Rights Action Campaign v Member of the
Executive Council for Local Government and Housing and Others (CCT 57/03) [2004] ZACC
9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC) (6 October 2004) para 32.
68 2011 (1) SA 293 (CC) paras 38–46.
69 Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and
Others (CCT 15/10) [2010] ZACC 20; 2011 (1) SA 293 (CC); 2011 (2) BCLR 189 (CC) (18
November 2010) para 44.
70 See Van der Walt (2011) 203–209.
71 Van der Walt (2011) 209–13.
72 Roux, T ‘Property’ in Woolman, S and Bishop, M (eds) Constitutional law of South Africa
2nd ed rev service 5 (2003) chap 46 at 46-2 – 46-5, 46-18, 46-23 – 46-25.
73 (CCT234/16) [2017] ZACC 26; 2017 (6) SA 331 (CC); 2017 (10) BCLR 1303 (CC) (24 July
2017).
74 Act 56 of 1986.
75 South African Diamond Producers Organisation v Minister of Minerals and Energy NO and
Others (CCT234/16) [2017] ZACC 26; 2017 (6) SA 331 (CC); 2017 (10) BCLR 1303 (CC) (24
July 2017) para 42 relying on Mkontwana para 32.
76 South African Diamond Producers para 43.
77 Offit Enterprises para 41.
78 (CCT184/14) [2015] ZACC 29; 2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (23
September 2015).
79 City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others (CCT184/14)
[2015] ZACC 29; 2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (23 September 2015) para
167.
80 Link Africa paras 163–73.
81 South African Diamond Producers para 47.
82 Van der Walt (2011) 209.
83 1999 (2) BCLR 204 (T) 221.
84 Act 71 of 1988.
85 2000 (2) BCLR 151 (C) para 82.
86 Act 76 of 1996.
87 (CCT 110/08) [2009] ZACC 24; 2009 (6) SA 391 (CC); 2010 (1) BCLR 61 (CC) (27 August
2009).
88 S 118(1) of the Act limits the owner’s power to transfer his immovable property in so far as
the registrar of deeds is prohibited from effecting the transfer without a certificate from the
municipality. The certificate will be issued once all consumption charges due for a period
of two years before the date of issue of the certificate have been paid.
89 Mkontwana para 65.
90 Mkontwana para 66.
91 Mkontwana paras 66–7.
92 Act 8 of 2001.
93 Reflect-All para 40 relying on Mkontwana para 65.
94 Reflect-All paras 46–7.
95 Van der Walt (2011) 264–70.
96 Act 3 of 2000.
97 Van der Walt (2011) 264–70; Van der Walt, AJ (2012) Procedurally arbitrary deprivation of
property Stellenbosch Law Review 23(1):88–94; Van der Sijde, E Reconsidering the
relationship between property and regulation: A systemic approach (unpublished LLD
dissertation Stellenbosch University 2015) 121–27.
98 Van der Walt (2011) 267.
99 Van der Sijde (2015) 124.
100 Act 91 of 1964.
101 See Mkontwana para 51. See also Van der Walt (2011) 250.
102 See FNB para 65. See also Van der Walt (2011) 244.
103 FNB para 100.
104 (74195/2013; 13039/2014; 13040/2014; 19552/2015; 23826/2014) [2016] ZAGPPHC 941;
[2017] 1 All SA 585 (GP); 2017 (2) SA 295 (GP) (7 November 2016).
105 Act 32 of 2000.
106 Jordaan and Another v City of Tshwane Metropolitan Municipality and Others; New
Ventures Consulting and Services (Pty) Ltd and Others v City of Tshwane Metropolitan
Municipality and Another; Livanos and Others v Ekurhuleni Metropolitan Municipality and
Another; Oak Plant Rentals (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality
(74195/2013; 13039/2014; 13040/2014; 19552/2015; 23826/2014) [2016] ZAGPPHC 941;
[2017] 1 All SA 585 (GP); 2017 (2) SA 295 (GP) (7 November 2016) para 24. It should be
noted that the North Gauteng High Court, Pretoria, held that in so far as section 118(3) of
the Municipal Systems Act is a charge on the land that can be enforced against subsequent
(or new) owners for debts incurred by previous owners, the provision was unconstitutional.
The High Court assumed that s 118(3) can be interpreted in such a way that it is enforceable
against new owners, and, on that basis, it was declared unconstitutional. The
Constitutional Court was required, in line with s 167(5) of the Constitution, to confirm or
deny a High Court decision. See Jordaan and Others v City of Tshwane Metropolitan
Municipality and Others; City of Tshwane Metropolitan Municipality v New Ventures
Consulting and Services (Pty) Limited and Others; Ekurhuleni Metropolitan Municipality v
Livanos and Others (CCT283/16, CCT293/16, CCT294/16, CCT283/16) [2017] ZACC 31;
2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC) (29 August 2017). The discussion in this
chapter refers mostly to the High Court decision, which was essentially confirmed by the
Constitutional Court, because the analysis of the deprivation issue is more elaborate in the
High Court judgment.
107 Jordaan para 30.
108 Jordaan paras 31–2.
109 Jordaan para 32. Therefore, although ownership entails certain responsibilities, even in
relation to debts incurred by tenants, the same responsibility that rests on current owners
for debts incurred by tenants in relation to property, cannot easily be placed upon future
owners (or subsequent owners) who purchase property that has historical debts.
Interestingly, the Court shifted the responsibility for the recovery of historical debts onto
the municipality and held that ‘it is not only possible but also desirable for a municipality
to prevent the accumulation of historical debts by taking responsible action before the
property is transferred into the name of a subsequent or new owner’. This is the case
because the new owners have no way of ensuring that the previous owners or tenants acted
in a responsible manner, or ensuring appropriate tenants were chosen, or that proper
agreements were concluded between the previous owners and tenants. They also have no
way of managing or controlling the indebtedness of their predecessors in title. The
municipality would have been in a much better position to manage the situation. In fact,
the Court stressed that such an obligation rests on the municipality by virtue of s 96 of the
Municipal Systems Act, which requires the municipality to recover all outstanding debts
payable to it. See Jordaan para 34. See also Brits, R (2014) The statutory security right in
section 118(3) of the Local Government: Municipal Systems Act 32 of 2000 – does it survive
transfer of the land? [Discussion of City of Tshwane Metropolitan Municipality v
Mathabathe 2013 4 SA 319 (SCA)] Stellenbosch Law Review 25(3):536–46.
110 Jordaan para 38.
111 First National Bank para 108.
112 Jordaan para 38.
113 Jordaan para 39.
114 Siphuma, S The lessor’s tacit hypothec: A constitutional analysis (unpublished LLM thesis
Stellenbosch University 2013) chapter 4; Viljoen, S The law of landlord and tenant (2016)
 320–34.
115 Act 91 of 1964.
116 Siphuma (2013) 81.
117 Van der Walt, AJ (2017) Property law in the constitutional democracy Stellenbosch Law
Review 28(1):8–25. See also Kiewitz, L Relocation of a specified servitude of right of way
(unpublished LLM thesis Stellenbosch University 2010); Van der Walt, AJ and Marais, EJ
(2012) The constitutionality of acquisitive prescription: A section 25 analysis Tydskrif vir die
Suid-Afrikaanse Reg 714–36; Boggenpoel, ZT (2013) The decision to order transfer of
encroached-upon land: A constitutional analysis Tydskrif vir Hedendaagse Romeins-
Hollandse Reg 76:1–15; Van der Walt, AJ and Raphulu, TN (2014) The right of way of
necessity: A constitutional analysis Tydskrif vir Hedendaagse Romeins-Hollandse Reg
77:468–84.
118 First National Bank para 57. See also Currie and De Waal (2013) 534.
119 First National Bank paras 60, 100. See also Van der Walt (2011) 219–20, 247.
120 First National Bank para 60. See also Van der Walt, AJ (2011) Constitutional Property Law
Juta’s Quarterly Review 3:2.2.1, where Van der Walt indicates that the Court failed to
recognise the academic argument of Roux in terms of which an expropriation that has
passed the non-arbitrariness test of s 25(1) cannot seriously still be questioned for non-
compliance with s 25(2) or (3). It may have been interesting and crucial in this regard to see
whether the expropriation would have passed the scrutiny of s 25(1) in terms of the non-
arbitrariness test if the Court had been more thorough in its s 25(1) analysis. Perhaps it
would not have made a difference, but even then the fact that it would not have made a
difference influences the academic argument surrounding Roux’s contention substantially.
Therefore, the fact that the Court did not give any recognition to the arbitrariness vortex
argument when interpreting s 25 (and purportedly following the FNB methodology) casts
doubt on the court’s interpretation of s 25(1).
121 [B23–2020].
122 See clause 1 of the draft Expropriation Bill [B23–2020].
123 (CCT 51/12) [2013] ZACC 9; 2013 (4) SA 1 (CC); 2013 (7) BCLR 727 (CC) (18 April 2013).
124 Agri SA para 48.
125 Agri SA para 59.
126 Agri SA para 58 (our emphasis added).
127 Act 28 of 2002. Agri SA para 68.
128 Agri SA para 68.
129 For a comprehensive discussion of compensation for expropriation, see Du Plessis, WJ
Compensation for Expropriation under the Constitution (unpublished LLD dissertation
Stellenbosch University 2009); Van der Walt (2011) 503–20. See also Iyer, D (2012) Is the
determination of compensation a pre-requisite for the constitutional validity of
expropriation? Haffejee NO and Others v Ethekwini Municipality and Others Speculum Juris
2:66–74; Du Plessis, WJ ‘The public purpose requirement in the calculation of just and
equitable compensation’ in Hoops B et al (eds) Rethinking Expropriation Law I: Public
Interest in Expropriation (2016) 369–87; Van Wyk, J (2017) Compensation for land reform
expropriation Tydskrif vir die Suid-Afrikaanse Reg 21–35.
130 In Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) the Land Claims Court mentioned
that in instances where ‘[n]o provision is made for any compensation to the landowner’
(para 26) there may be several repercussions, namely: ‘It could be that the provision
 contains an implied right to compensation, or that the court might have to read such a right
into the provision, or that sections 25(2) and (3) of the Constitution provide a right to
compensation. Where an obligation to pay compensation is incompatible with the essence
of the permitted expropriation, it could be that the authorizing statutory provision is
invalid. It could also be that the absence of a right to compensation is justifiable under
section 36 of the Constitution’ (para 32).
131 Van der Walt (2011) 509; T Roux ‘Property’ in S Woolman, T Roux and M Bishop (eds)
(2003) Constitutional law of South Africa vol 3 2nd ed OS ch 46 34–6.
132 Van der Walt (2011) 509.
133 Act 63 of 1975.
134 See s 12 of the Expropriation Act 63 of 1975. See also Van der Walt (2011) 513.
135 Du Plessis (2015) 369–87; Van Wyk (2017) 21–35 at 35.
136 2016 (5) SA 513 (LCC). For a discussion of the judgment, see Slade, BV (2016)
Constitutional property law JQR 3:para 2.1.
137 Msiza v Director-General, Department of Rural Development and Land Reform 2016 (5) SA
513 (LCC) para 47.
138 S 25(2)(a) of the Constitution. For an extensive doctrinal analysis of the meaning of the
public purpose/public interest requirement for expropriation, see Slade, BV The
justification of expropriation for economic development (unpublished LLD dissertation
Stellenbosch University 2012) 57–131. See also Slade, BV (2013) The less invasive means
argument in expropriation law Tydskrif vir die Suid-Afrikaanse Reg 199–216; Slade, BV
(2014) “Public purpose or public interest” and third party transfers Potchefstroom
Electronic Law Journal 17:166–206; Slade, BV ‘Less invasive means: The relationship
between sections 25 and 36 of the Constitution of the Republic of South Africa, 1996’ in
Hoops, B et al (eds) (2015) Rethinking Expropriation Law I: Public Interest in Expropriation
331–48.
139 Harvey v Umhlatuze Municipality and Others (4387/08) [2010] ZAKZPHC 86; 2011 (1) SA
601 (KZP); 2011 (4) BCLR 379 (KZP) (3 December 2010) para 82; Slade (2012) 3.
140 (458/2011) [2012] ZASCA 93; 2012 (5) SA 1 (SCA); [2012] 3 All SA 266 (SCA); 2012 (9) BCLR
958 (SCA) (31 May 2012) (our emphasis added).
141 Minister of Minerals and Energy v Agri South Africa (458/2011) [2012] ZASCA 93; 2012 (5)
SA 1 (SCA); [2012] 3 All SA 266 (SCA); 2012 (9) BCLR 958 (SCA) (31 May 2012) para 18.
142 Gildenhuys, A (2001) Onteieningsreg 2nd ed 151.
143 Gildenhuys (2001) 151.
144 Gildenhuys (2001) 151.
145 2016 (5) SA 513 (LCC) (for a discussion of the judgment, see Slade (2016) 2.1).
146 (1222/2016) [2017] ZASCA 130; 2018 (3) SA 440 (SCA) (29 September 2017).
147 Msiza v Director-General, Department of Rural Development and Land Reform 2016 (5) SA
513 (LCC).
148 Act 3 of 1996.
149 See specifically Mokgoro J’s comments in Du Toit v Minister of Transport (CCT22/04) [2005]
ZACC 9; 2006 (1) SA 297 (CC); 2005 (11) BCLR 1053 (CC) (8 September 2005) para 36.
150 See Du Plessis (2009) 267.
151 Du Plessis (2009) 271.
152 Du Plessis (2009) 299–300.
153 Van der Walt (2011) 509.
154 Van der Walt (2011) 509.
155 Du Toit para 51.
156 Van der Walt (2011) 514.
157 Van der Walt (2011) 518.
158 See Du Plessis (2015) 369–87.
159 (LCC 156/2009) [2012] ZALCC 7 (19 April 2012).
160 Du Plessis (2015) 379.
161 Du Plessis (2015) 380.
162 Du Plessis (2015) 387.
163 Van der Walt (2011) 509.
164 Du Plessis (2009) 299–300.
165 Van der Walt (2011) 509.
166 Marais, EJ Is onteiening sonder vergoeding werklik die antwoord? Litnet Akademies
available at https://www.litnet.co.za/onteiening-sonder-vergoeding-werklik-die-
antwoord/.
167 Act 126 of 1993.
168 Act 22 of 1994.
169 Act 2 of 1996.
170 Act 31 of 1996.
171 Act 28 of 1996.
172 Act 62 of 1997.
173 Act 11 of 2004. This Act was declared unconstitutional by the Constitutional Court in 2010
(see Tongoane and Others v National Minister for Agriculture and Land Affairs and Others
(CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010)).
174 Presidential Advisory Committee on Land Reform and Agriculture Final Report May 2019
at 12.
175 Presidential Advisory Committee on Land Reform and Agriculture Final Report May 2019
at 11. See also the High Level Panel on the Assessment of Key Legislation and the
Acceleration of Fundamental Change Final Report November 2017 at 202.
176 See, for example, Black First Land First Written Submission to Parliament on Review of the
Land Clause of the Constitution (June 2018) and Foundation for Human Rights Submission
to the Constitutional Review Committee (November 2018). See also African National
Congress Report on the Possible Review of Section 25 of the Constitution (November 2018)
and Economic Freedman Fighters Report on the Review and Amendment of Section 25 of
the Constitution (November 2018).
177 Minutes of Proceedings of the National Assembly on Tuesday 27 February [No 3 – 2018:
Fifth session, Fifth Parliament] page 8.
178 Joint Constitutional Review Committee (2018) Report on the possible review of section 25 of
the Constitution (November 2018) at para 7.
179 Draft Constitution Eighteenth Amendment Bill.
180 [B23–2020].
181 Ngcukaitobi, T (2019, 13 December) What section 25 means for land reform Mail &
Guardian available at https://mg.co.za/article/2019-12-13-00-what-section-25-means-for-
land-reform/.
182 See s 25(5)–(9) of the Constitution.
183 Pienaar, JM (2014) Land Reform 12; Pienaar, JM (2014) Reflections on the South African
land reform programme: Characteristics, dichotomies and tensions (part 1) Tydskrif vir die
Suid-Afrikaanse Reg 425–46 at 426.
184 See Kloppers, HJ and Pienaar, GJ (2014) The historical context of land reform in South
Africa and early policies Potchefstroom Electronic Law Journal 17:677–706. This article
provides an overview of the most prominent legislation which provided the framework for
the policy of racially based territorial segregation that applied for the most part of the
twentieth century. It further discusses the legislative measures and policies which were
instituted during the period from 1991 to 1997, aimed at abolishing racially based laws and
practices related to land and which eventually provided the basis to the current land
reform programme in South Africa. Interestingly, Beinart and Delius survey the historical
background and realities of the Natives Land Act and argue that despite how racist and
segregationist the Act was, its immediate purpose was not to dislodge Africans from land
but to maintain and solidify the status quo of land possession and ownership until
government commissions could find more lasting solutions entailing segregation and land
distribution. They make this argument to point out that land dispossession is an injustice
that started long before 1913. See Beinart, W and Delius, P ‘The Natives Land Act of 1913: A
template but not a turning point’ in Cousins, B and Walker, C (eds) (2015) Land Divided
Land Restored: Land Reform in South Africa for the 21st Century 24–39 at 25.
185 Van der Walt, AJ and Pienaar, GJ (2016) Introduction to the Law of Property 7th ed 360.
186 Van Wyk, J (2010) Feasibility of restoration as a factor in land restitution claims South
African Public Law 25:590–601 at 591.
187 Pienaar (2014) Land reform 9, 11.
188 This section does not purport to provide a complete or overall picture of the history of land
dispossession in South Africa. The point of the section is to highlight key aspects of land
dispossession in order to show the important context within which the need for s 25
developed.
189 To view some of the accounts, see Cousins, B and Walker, C (eds) (2015) Land Divided
Land Restored: Land Reform in South Africa for the 21st Century; Ngcukaitobi (2019);
Pienaar (2014) chap 3.
190 Cousins, B and Walker, C (eds) ‘Land divided, land restored: Introduction’ in Cousins, B
and Walker, C (eds) (2015) Land Divided Land Restored: Land Reform in South Africa for
the 21st Century 1–23 at 17–21.
191 Hendricks, FT, Ntsebeza, L and Helliker, K ‘Land questions in South Africa’ in Hendricks,
FT, Ntsebeza, L and Helliker, K (eds) (2013) The Promise of Land: Undoing a Century of
Dispossession in South Africa 1–26 at 3–4.
192 Hendricks, Ntsebeza and Helliker (2013) 1–26 at 9.
193 Claassens, A ‘Law, land and custom, 1913-2014: What is at stake today?’ in Cousins, B and
Walker, C (eds) (2015) Land Divided Land Restored: Land Reform in South Africa for the
21st Century 68–84 at 70–2.
194 Pienaar (2014) 6.
195 See Kloppers and Pienaar (2014) 677–706.
196 Pienaar (2014) 6.
197 Pienaar (2014) 7.
198 Pienaar (2014) Tydskrif vir die Suid-Afrikaanse Reg 425–46 at 430 [footnotes omitted].
 Van der Walt and Pienaar explain that ‘[p]roperty relationships were disturbed and skewed
199 fundamentally during the apartheid era. To rectify the situation and to establish a measure
of normality and fairness as far as property is concerned will take time, and in the
meantime a measure of political interference is unavoidable. An important aspect of the
processes through which greater normality and fairness regarding property distribution are
promoted is land reform’. See Van der Walt and Pienaar (2016) 359–60.
200 Pienaar (2014) 14.
201 Hall, R ‘Who, what, where how why? The many disagreements about land redistribution in
South Africa’ in Cousins, B and Walker, C (eds) (2015) Land Divided Land Restored: Land
Reform in South Africa for the 21st Century 127–44 at 140.
202 Pienaar (2014) 15. See also Hall (2015) 127–44 at 140–41.
203 Pienaar (2014) Tydskrif vir die Suid-Afrikaanse Reg 425–46 at 439–40.
204 Pienaar (2014) 425–46, 439–40; Hall (2015) 127–44. See also Pienaar (2014) 193, 203.
Pienaar analyses the South African land reform policy framework, starting with the
Department of Land Affairs White Paper on South Africa Land Policy (1997) available at
http://www.ruraldevelopment.gov.za/phocadownload/White-
Papers/whitepaperlandreform.pdf, and includes both the Department of Rural
Development and Land Reform Green Paper on Land Reform (2011) and Department of
Rural Development and Land Reform (DRDLR) Policy Framework for Land Acquisition and
Land Valuation in a Land Reform Context (2012).
205 Pienaar (2014) Tydskrif vir die Suid-Afrikaanse Reg 425–46 at 439–40.
206 Hall (2015) 127–44, 128. See also Hall, R ‘Two cycles of land policy in South Africa: Tracing
the contours’ in Anseeuw, W and Alden, C (eds) (2010) The Struggle Over Land in Africa:
Conflicts, Politics and Change 175–92.
207 Hall (2015) 127–44 at 141.
208 See Hall (2015) 127–44 at 143–44, where Hall makes a number of suggestions of ways in
which the policies of land redistribution should be approached.
209 See s 25(7) of the Constitution. See also Van Wyk (2010) 590–601 at 591.
210 S 25(7) of the Constitution.
211 This is in line with the s 25(7) of the Constitution. The preamble of the Restitution of Land
Rights Act 22 of 1994 states that the aim of the Act is ‘[t]o provide for the restitution of rights
in land in respect of which persons or communities were dispossessed under or for the
purpose of furthering the objects of any racially based discriminatory law; to establish a
Commission on Restitution of Land Rights and a Land Claims Court; and to provide for
matters connected therewith’.
212 Hall, R (2004) Land restitution in South Africa: Rights, development, and the restrained
state Canadian Journal of African Studies 38(3):654–71 at 656.
213 Hall (2004) 654–71 at 656.
214 Pienaar (2014) 425–46 at 429; Hall (2010) 175–92 at 190.
215 Hall (2004) 654–71 at 659.
216 Hall (2004) 654–71 at 659.
217 Hall (2004) 654–71 at 660.
218 Act 15 of 2014.
219 Hall (2004) 654–71 at 660. Hall also argues that the Growth Employment and Redistribution
(GEAR) policies of the state impact directly on the fact that it is restrained it the context of
land redistribution. See specifically Hall (2004) 654–71 at 660–64.
220 Pienaar (2014) Tydskrif vir die Suid-Afrikaanse Reg 425–46 at 428.
221 Pienaar (2014) Tydskrif vir die Suid-Afrikaanse Reg 425–46 at 433.
Education and socio-economic
rights

17.1 Introduction

17.2 The constitutionalisation of socio-economic rights

17.2.1 Introduction
17.2.2 The justiciability debate

17.3 Socio-economic rights in the Constitution

17.3.1 Introduction
17.3.2 Progressively realisable socio-economic rights
17.3.3 Immediately realisable socio-economic rights

17.4 Constraints in the adjudication of socio-economic rights

17.4.1 Introduction
17.4.2 Separation of powers

17.5 Guidelines in the interpretation of socio-economic rights

17.5.1 Introduction
17.5.2 Duty to respect
17.5.3 Duty to protect
17.5.4 Duty to fulfil
17.5.5 Duty to promote

17.6 The obligation on private parties regarding socio-economic rights

 17.7 Enforcing socio-economic rights obligations
17.7.1 Introduction
17.7.2 Enforcing negative duties
17.7.3 Enforcing the positive duties imposed by sections 26 and 27 of the Constitution
17.7.3.1 The reasonableness approach
17.7.3.1.1 Introduction
17.7.3.1.2 Soobramoney and the rationality model of review
17.7.3.1.3 Grootboom and the reasonableness model of review
17.7.3.1.3.1 ‘Access to’ rights
17.7.3.1.3.2 Reasonableness
17.7.3.2 Critique of the reasonableness approach
17.7.3.3 Minimum core approach
17.7.3.4 Progressive realisation
17.7.3.5 Availability of resources
17.7.3.6 Meaningful engagement
17.7.4 Crafting appropriate remedies in socio-economic rights cases
17.7.5 Immediately realisable socio-economic rights and the right to education
17.7.5.1 Introduction
17.7.5.2 The right to a basic education
17.7.5.2.1 Introduction
17.7.5.2.2 The scope and ambit of the constitutional right to ‘basic
education’
17.7.5.3 The right to receive education in the language of one’s choice
17.7.5.3.1 Introduction
17.7.5.3.2 The general right and its internal modifiers
17.7.5.4 The question of free tertiary education
17.7.5.4.1 Introduction
17.7.5.4.2 Meaning and content of the right to further education

Summary

17.1 Introduction
The turn of the millennium has seen an increasing interest in the
promotion and protection of socio-economic rights.1 It is often argued
that one of the transformative features of the Constitution of the
Republic of South Africa, 19962 is the inclusion of a wide range of
justiciable social, economic and cultural rights (socio-economic
rights).3 Socio-economic rights have been defined as entitlements to
those conditions and resources necessary for the material well-being of
people.4 They include rights to goods and services such as food, water,
sanitation, housing, healthcare, social assistance, education, and a
healthy environment, among others. The Constitution is one of the first
to enshrine a comprehensive suite of socio-economic rights as fully
justiciable and has, as a result, attracted widespread attention both at
the regional and international level.5 The fact that they are justiciable
means that these rights can be enforced through judicial mechanisms.6
This development is predicated on the realisation that socio-economic
rights are important in eradicating poverty,7 particularly in a country
like South Africa with huge socio-economic discrepancies emanating
from the legacy of apartheid. It is noteworthy that the Constitution was
adopted within a particular historical and social context where the
black majority had been subjected to systemic discrimination in
accessing basic services due to the apartheid policies of the National
Party government.8

Unique aspects of the South African

Constitution
In her foreword to McLean’s book Constitutional
Deference, Courts and Socio-economic Rights in
South Africa, former Constitutional Court judge Kate
O’Regan began by observing that in his State of the
Union address on 11 January 1941, US President
Franklin D Roosevelt acknowledged the
interdependence between civil and political rights, on
the one hand, and social and economic rights, on the
other, when he said:
We have come to a clear realization of the fact that true individual
freedom cannot exist without economic security and
independence. ‘Necessitous men are not free men’.9

The interdependence between these different

categories of rights, O’Regan observed further,
recognises ‘that people living without the basic
necessities of life are deprived of human dignity,
 freedom and equality. It also recognises that
democracy itself is enhanced where all citizens have
access to the basic necessities of life’.10 It is not
surprising, therefore, that this interdependence is
asserted in many international conventions and
national constitutions.11
The South African Constitution, O’Regan then
explained, ‘is one of the first Commonwealth
constitutions to entrench both civil and political rights
and social and economic rights and to render both
justiciable before the courts. The task of interpreting
and applying the social and economic rights in the
Constitution is arguably the most challenging task
facing lawyers and courts in South Africa. That task is
rendered all the more difficult by the deep inequality in
South African society’.12

The apartheid legacy in South Africa left a divided and unequal

country.13 This is reflected, for example, in the huge disparities in the
quality of education between rich and poor, with many schools in rural
areas lacking basic education infrastructure.14 Apartheid
institutionalised a system which maintained white domination and
privilege in the political, economic, social and cultural arenas with a
concomitant disenfranchisement of the black population.15 The
inclusion of socio-economic rights in the Bill of Rights is therefore
aimed at protecting and advancing important interests intrinsic to
human dignity that governments may not always succeed in
protecting.16 The advancement of these rights through legal
mechanisms is made more difficult by the fact that they are being
enforced while the underlying conditions of poverty have not been
addressed. These conditions include lack of access to basic necessities
such as water, sanitation, food, social security and assistance, health
care and housing. As noted by Langford:
 The guaranteeing of elementary human needs like food, clothing, and shelter is
the condition for human existence and development as such. It is at the same
time an indispensable component of a constitutional, democratic polity.17

Although some black people have been economically empowered, a

significant number of South Africans still live in poverty. Estimates by
Statistics South Africa show that around half of South Africans survive
on less than R779 per month.18 South Africa suffers from high levels of
unemployment estimated at between 25% and 38%.19 The country also
faces a huge housing backlog, with millions of people still living in
informal settlements without access to basic services.20 The National
Development Plan (NDP), South Africa’s developmental blueprint, has
chillingly warned that the failure to address these challenges is likely to
result in economic decline, rising competition for resources, social
tension and the rise of populist politics which may lead to social
instability.21
In light of the above background, one of the key objectives of the
Constitution is to help facilitate the transformation of South African
society through improving the quality of life of all citizens.22 Klare has
characterised such an endeavour as transformative constitutionalism,
which signifies ‘an enterprise of inducing large-scale social change
through nonviolent political processes grounded in law.’23 The notion of
transformative constitutionalism has found deep expression in the
Constitutional Court’s jurisprudence and academic literature.24 Key
elements of this transformation include redressing the legacy of past
injustices and building an inclusive society anchored on social justice,
fundamental rights and the improvement in the quality of people’s
lives.25

The limits of socio-economic rights in

effecting radical social-economic change
Some academics and activists have expressed doubt
about whether the judicial enforcement of socio-
economic rights can be an effective tool to achieve
radical social and economic transformation in South
Africa.26 In a recent work, Tshepo Madlingozi – framing
his argument in decolonial terms – extends this
critique to the constitutional project in its entirety by
arguing that ‘post-1994 constitutional re-arrangements
are transforming society in ways that do not instantiate
a fundamental rupture with the inherited, sedimented
and bifurcated social structure in terms of which the
majority of black people remain confined in a “zone of
non-beings”.27 But even lawyers who hold a more
optimistic view about the potential of the Constitution
to effect change point out that the inclusion of socio-
economic rights has not had as big an impact on
addressing social and economic inequality as was
hoped for. Dennis Davis, for one, argues that this can
partly be blamed on the manner in which the courts
have engaged with socio-economic rights and its
deference to the legislature and the executive. But
Davis also argues that the Constitutional Court’s
reluctance to become an activist court is ‘reflective of
prevailing political and economic concerns which are
inherent in this area of jurisprudence’.28 What is clear
is that there is a significant gap between the promise
of housing, medical care and basic infrastructure
contained in the Constitution and the delivery thereof.
Davis argues that this is not surprising as the
government’s socio-economic policies changed
radically from the time the Constitution was adopted,
until the time socio-economic rights cases started
reaching the Constitutional Court. He puts the
argument as follows:
Whereas the ANC government had begun its term of office in
1994 with a commitment to an economic policy entitled the
Reconstruction and Development Policy (the RDP), within the first
five years of its rule, it had shifted direction in favour of a policy
 favouring financial austerity and a more minimalist role for the
state. The government saw the solution to the economic burdens
bequeathed by apartheid in a so-called Growth and Redistribution
Policy (GEAR) in which the development of an economy which
could be competitive on the global stage would produce a growth
rate sufficient to release resources to redress the poverty of the
majority. It is in the vortex of economic policy that we may begin
to locate a basis for the Constitutional Court’s theory of
deference. We need to view the Court’s performance in the context
of the argument that, were the Court to do more, it may place the
Constitution at war with government policy on a key issue, which
is the shape of the economy.29

17.2 The constitutionalisation of socio-economic rights

17.2.1 Introduction
One of the notable features of the Constitution, as alluded to above, is
the inclusion of a range of socio-economic rights as justiciable rights, a
position that distinguishes it from constitutions in comparative
jurisdictions.30 Despite the debates31 surrounding the inclusion of
justiciable socio-economic rights in the Constitution, there are cogent
reasons why such rights were included, particularly in the South African
context.32 Perhaps the most of important of these is the fact that racial
oppression in South Africa manifested itself not only on political but
also on economic, social and cultural grounds. This left the country with
an entrenched legacy of political, social and economic inequality.33 The
constitutionalisation of socio-economic rights also indicates an
understanding of the scale and scope of the problem that faced the
South African society at the dawn of democracy. The Constitutional
Court in Soobramoney v Minister of Health (KwaZulu-Natal)
highlighted the prevailing conditions as follows:
We live in a society in which there are great disparities in wealth. Millions of
people are living in deplorable conditions and in great poverty. There is a high
level of unemployment, inadequate social security, and many do not have
access to clean water or to adequate health services. These conditions already
existed when the Constitution was adopted and a commitment to address
 them, and to transform our society into one in which there will be human
dignity, freedom and equality, lies at the heart of our new constitutional
order.34

There was therefore a ‘corrective justice’ dimension to the inclusion of

socio-economic rights, given the historical imperative to address the
legacy of past injustices.35 Additionally, the formal inclusion of
judicially-enforceable socio-economic rights pointed to a clear
constitutional model for South Africa, with an explicit developmental
role imposed on the state to marshal productive resources to ensure the
social, economic and political empowerment of all South Africans.36
Significantly, the inclusion of socio-economic rights entitlements would
signal to black people the new democratic order’s commitment to
ameliorating and reversing the debilitating effects that apartheid
policies had on black people.37

17.2.2 The justiciability debate

At the time of the drafting of the final Constitution, the inclusion of
justiciable socio-economic rights in the Constitution was subject to
considerable debate. A concern was that by their nature, these rights are
not suited to judicial determination by the courts.38 Another concern
related to the institutional legitimacy and indeed the competence of
courts to adjudicate over socio-economic rights claims. Socio-
economic rights claims are considered to be polycentric in nature – that
is, they involve problems that have complex interacting centres of
tension – and the argument was that such claims are not suitable for
judicial determination as this has implications on the legitimacy and
capacity of the courts.39 Put differently, the enforcement of socio-
economic rights would require the allocation of budgets and the
implementation of different, often competing government policies,
matters not within the direct knowledge or expertise of judges. Another
key concern in this regard was that the inclusion of justiciable socio-
economic rights in a constitution undermines the doctrine of the
separation of powers. The argument is that by permitting the judiciary
to adjudicate and make determinations on policy and budgetary issues,
the courts may encroach on the terrain of other arms of the state in an
unconstitutional manner.40
The newly minted Constitutional Court had an opportunity to
engage with and make a determination on those concerns as part of the
certification process leading to the adoption of the Constitution.
Schedule 4 of the interim Constitution contained 34 Constitutional
Principles (CPs) with which the text of the Constitution was required to
comply. During the certification hearings it was argued that the socio-
economic rights guaranteed in sections 26, 27 and 29 infringed CP VI
which provided that there must be a separation of powers between the
legislature, executive and judiciary, as well as CP II which provided that
the fundamental rights guaranteed in the Constitution must be
entrenched and justiciable.41 The socio-economic rights infringed CP
VI, the objectors argued, because they conferred the power on the
courts to determine how the budget should be allocated,42 and they
infringed CP II because of the budgetary issues their enforcement gave
rise to.43
The Constitutional Court rejected both of these arguments. In so far
as the separation of powers argument was concerned, the Court held
that, while it was true that socio-economic rights may result in courts
making orders that have a direct impact on the budget, the same
problem arises with civil and political rights. For example, a court could
require the government to provide legal aid or to extend state benefits to
a new class of beneficiaries. It follows, therefore, that the power
conferred on courts to interpret and apply socio-economic rights is not
so different from the power to interpret and apply civil and political
rights that it amounts to an infringement of the separation of powers.44
In so far as the justiciability argument was concerned, the Court held
that the mere fact that socio-economic rights give rise to budgetary
issues does not prevent them from being justiciable. In any event, they
were capable of being negatively protected from improper invasion.45
Thus, the concerns raised were insufficient to warrant the exclusion
of socio-economic rights from the Constitution. In the years since the
Constitution was adopted, the South African courts have had to grapple
with the difficulties presented by their role in giving practical effect to
the constitutional model of justiciable socio-economic rights, while at
the same time acknowledging the constitutional imperative to preserve
the important tenet of democratic accountability intrinsic in the
separation of powers.46
Despite the constitutionalisation of socio-economic rights, and the
Constitutional Court’s clarification in the First Certification Judgment,
objections to the notion of justiciability of socio-economic rights still
impact on the way such rights are enforced.47 The adjudication of socio-
economic rights raises complex questions relating to the justiciability of
these rights, in particular the legitimacy of thrusting courts into
complex and often contentious fiscal and policy debates that are
ordinarily presumed to fall under the exclusive remit of the other arms
of the state.
The judicial enforcement of socio-economic rights also puts into the
spotlight the institutional competence of courts to craft appropriate
remedies with potential polycentric implications that the executive and
legislature will be in a position to implement.48 Nevertheless, the
constitutionalisation of socio-economic rights serves to ensure
governmental attention to important interests that might otherwise be
neglected in ordinary debates.49
Including socio-economic rights as justiciable rights also
demonstrates a manifest desire to ensure that the political process also
focuses on assisting the poor and marginalised in accessing the basic
needs to ensure a dignified livelihood.50 In that regard, the
constitutionalisation of socio-economic rights is a clear demonstration
that issues of poverty alleviation, social justice, and access to social
goods necessary for a dignified existence are not left to the uncertainties
of the markets.51 Significantly, socio-economic rights are also
considered a precondition for entrenching a democratic dispensation,
as a lively democracy, to a large extent, depends on the existence of an
informed and a healthy society.52

17.3 Socio-economic rights in the Constitution

17.3.1 Introduction
The Constitution protects a wide array of socio-economic rights. These
include the rights to housing,53 health care, food, water and social
security.54 They also include the rights to education,55 children’s socio-
economic rights,56 and the socio-economic rights of persons deprived of
their liberty.57 The Constitution also provides for environmental rights
in section 24, labour-related rights in section 23, and various rights
relating to language and culture contained in sections 15, 29(2), 30 and
31. Although these provisions are closely related to socio-economic
rights, this chapter will focus primarily on sections 26, 27, 28(1)(c) and
29(1) as it is in the context of interpreting these rights that the
Constitutional Court has distinguished between the negative and
positive obligations imposed by socio-economic rights. It is also in this
context that the Court has distinguished between the positive
obligations imposed by those socio-economic rights that are
progressively realisable (sections 26 and 27) and those that are
immediately realisable (sections 28(1)(c) and 29(1)). The relevant case
law includes matters related to the right of access to health care
services,58 access to adequate housing and related rights,59 social
assistance,60 access to sufficient water,61 access to electricity,62 the right
to sanitation,63 and education-related rights.64

17.3.2 Progressively realisable socio-economic rights

Sections 26 and 27 of the Constitution, the two main progressively
realisable socio-economic rights provisions, are identically structured,
with three main clauses. The first subsection outlines the general right,
for example, subsection 26(1) states that ‘everyone has the right to have
access to adequate housing’. The second subsection, often referred to as
the ‘internal modifier’, imposes an obligation, albeit qualified, for the
state to ‘take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation’ of the
protected rights.65
It is noteworthy that the Constitution formulates the section 26 and
27 socio-economic rights as a right of ‘access’ to housing, sufficient
water, healthcare and social security in subs (1) of the relevant
provisions. In Minister of Health and Others v Treatment Action
Campaign and Others, for example, the Constitutional Court stated that
the rights-creating provisions (sections 26(1) and 27(1)), which
guarantee access to the socio-economic right in question, do ‘not give
rise to a self-standing and independent positive right enforceable
irrespective of the considerations mentioned in [subsection (2)]’.66 This
interpretive approach was repeated in Mazibuko and Others v City of
Johannesburg and Others, where the Constitutional Court held that the
right of access to sufficient water guaranteed in section 27(1)(b) does
not require the state to provide every person with sufficient water on
demand. Instead, it requires the state to take reasonable legislative and
other measures progressively to realise the achievement of the right of
access to sufficient water, within available resources.67
Instead, the two subsections, for instance sections 26(1) and 26(2),
must be read together. The result is that the scope and content of the
positive right is informed by the nature of the obligation on the state
provided in the first subsection.68 The practical implications are that the
scope of the right is determined, and may be limited by, the resources
available to the state to fulfil its obligation as provided in the second
subsection.69 As will be discussed later in this chapter, the
Constitutional Court has emphasised the fact that the state has an
obligation to act reasonably when implementing section 26 and 27 of
the Constitution. To understand the nature of the obligations imposed
by section 26(1) and (2) and section 27(1) and (2), one has to
understand what reasonable action would entail. It is on the basis of the
above interpretive approach that the socio-economic rights guaranteed
in the Constitution do not provide for a litigant to claim from the state
on demand, housing, water or health care services.70
The third subsection (sections 26(3) and 27(3)), which the resources
limitations clause does not qualify, prohibits certain specific actions
related to each right.71 Section 26(3) provides for protection against
arbitrary evictions and demolitions of people’s homes, whereas section
27(3) prohibits refusal of emergency medical treatment. Like children’s
socio-economic rights and the right to a basic education (sections 28(1)
(c) and 29(1), these rights are not subject to any qualifications.
 Apart from sections 26 and 27, the environmental, property and
further education rights protected in sections 24, 25 and 29(1)(b) of the
Constitution are also qualified. Section 24(b) provides that ‘[e]veryone
has the right to have the environment protected … through reasonable
legislative and other measures’. Section 25(5) provides that ‘[t]he state
must take reasonable legislative and other measures, within its
available resources, to foster conditions which enable citizens to gain
access to land on an equitable basis’. Additionally, section 29(1)(b)
provides that ‘[e]veryone has the right to further education, which the
state, through reasonable measures, must make progressively available
and accessible’.
The Constitution thus creates potential limitations on the protected
socio-economic rights. First, the state has the duty to take reasonable
legislative and other measures. Second, the state can only realise the
protected rights within its available resources. Third, the state must
realise such guaranteed socio-economic rights through progressive
realisation. On the face of it, the Constitution recognises the
impossibility of fully realising all socio-economic rights immediately.
Consequently, it imposes the limitations on the state’s obligations.72
However, some of the socio-economic rights are not qualified in the
manner explained here and are therefore immediately enforceable. It is
important to distinguish clearly between these two types of rights and
to understand how the obligations they place on the state differ.

17.3.3 Immediately realisable socio-economic rights

The children’s socio-economic rights in section 28(1)(c) and the right to
basic education, including adult basic education in section 29(1)(a) and
section 35(2)(e) on the rights of detained persons to adequate
accommodation, nutrition, reading material and medical treatment do
not contain the internal qualifications of ‘reasonableness’, ‘available
resources’ or ‘progressive realisation’ contained in sections 26(2) and
27(2). These rights are therefore immediately realisable as they impose
immediate obligations on the state and others. However, it is important
to bear in mind that, although these rights are formulated as
unqualified rights, all the rights in the Bill of Rights are subject to the
general limitations clause contained in section 36 of the Constitution.73
They may thus be limited in terms of law of general application
provided the limiting measure meets the requirements of purpose and
proportionality specified in section 36 of the Constitution.74 Of
particular significance is that the Constitution also includes a number
of other rights that may, in appropriate cases, be used to bolster the
enforcement of socio-economic rights. These include the rights to
equality, dignity,75 access to the courts76 and access to information,77
and the right to just administrative action.78

The role of amici curiae in socio-economic

rights litigation
The participation of amici curiae (friends of the court)
is often critical in constitutional litigation, especially in
cases involving socio-economic rights. In that regard,
the ‘direct participation by disadvantaged groups in
socio-economic rights litigation is essential to convey
the impact and social consequences of poverty by
those directly affected.’79 The expertise of public
interest litigation organisations and other entities often
comes in handy especially in socio-economic rights
cases where all manner of expertise may be required
for a proper judicial determination of the issues.80 The
amici curiae and their expertise often assist the courts
to consider a range of interests beyond those of the
parties to the litigation and this helps in addressing
systemic issues linked to human rights violations.
Amici curiae briefs can play a significant role in this
context by presenting the courts with different
perspectives and possible solutions to the legal
disputes in a particular case, a position acknowledged
by the Constitutional Court in Mazibuko81 and
Government of the Republic of South Africa and Others
 v Grootboom and Others.82 Commenting on the
Grootboom case, Justice Sachs stated the following:
I might mention that we were helped at the hearing in a most
considerable way by the participation of the Human Rights
Commission and the Community Law Centre of the University of
the Western Cape. Counsel for the Legal Resources Centre
appeared on their behalf and succeeded in broadening the
debate so as to require the Court to consider the right of all South
Africans to shelter, whether they had children or not … The case
showed the extent to which lawyers can help the poor to secure
their basic rights.83

Also of considerable significance to the judicial

enforcement of socio-economic rights is the Biowatch
principle laid down by the Court. The Biowatch
principle requires that an unsuccessful party in
proceedings against the state be generally exempted
from paying the state’s costs in constitutional
litigation.84 In Biowatch, the Constitutional Court
recognised that, as a general rule in constitutional
litigation against the state, an unsuccessful litigant
should not to be burdened with an adverse costs order.
The underlying principle seeks to prevent the chilling
effect that adverse costs orders might have on litigants
seeking to enforce constitutional rights. This is an
important development in constitutional litigation, and
especially in socio-economic rights cases which are
often costly to litigate. Most of the landmark socio-
economic rights cases involved poor communities
assisted by public interest organisations that to a large
extent depend on donor funding for their various
programmes.85

17.4 Constraints in the adjudication of socio-economic

rights
17.4.1 Introduction
The Constitution protects and promotes the system of separation of
powers although it does not refer to it explicitly. As noted above, CP IV
provided for separation of powers and stipulated that ‘[t]here shall be a
separation of powers between the legislature, executive and judiciary,
with appropriate checks and balances to ensure accountability,
responsiveness and openness.’ In the First Certification Judgment, the
Constitutional Court held that CP IV required a separation of powers
between the legislature, the executive and judiciary though it did not
prescribe what form that separation should take. In that regard, the
separation of powers principle is not ‘a fixed or rigid constitutional
doctrine’ and that ‘it is given expression in many different forms and
made subject to checks and balances of many kinds’.86 In South African
Association of Personal Injury Lawyers v Heath, the Court confirmed
that there ‘can be no doubt that our Constitution provides for such a
separation [of powers] and that laws inconsistent with what the
Constitution requires in that regard, are invalid.’87

17.4.2 Separation of powers

Practically, separation of powers entails that the legislative branch is
responsible for enacting legislation, the executive branch is responsible
for developing and implementing policy and legislation, and the
judiciary is responsible for resolving disputes by interpreting and
applying the law to the dispute at hand. Importantly, mutual control
and accountability are established through a system of checks and
balances of which judicial review of legislative or executive action is an
important component.88 In socio-economic rights litigation, the courts
are often called upon to adjudicate on highly contentious matters with
significant political and policy implications. An important issue in
constitutional adjudication is normally the question of appropriate
interpretation and application of the doctrine of separation of powers,
particularly in cases that have significant political and policy
implications. While the Constitutional Court must interpret and enforce
the socio-economic rights protected in the Constitution, the
government is largely responsible for devising and implementing the
policies and programmes that would provide more people with better
access to housing, health care, education and other social and
economic benefits. The Constitutional Court therefore treads carefully
not to encroach on the terrain of the executive in this regard.
The adjudication of socio-economic rights is an example where all
sorts of polycentric concerns tend to arise – the so-called polycentric
dilemma, as alluded in the introductory section above.89 In his 1978
essay, Lon Fuller argued that the judiciary could not and should not
deal with situations in which there are complex repercussions beyond
the parties and the factual situation before the court.90 Polycentric
disputes are ‘disputes arising in litigation which give rise to many
diverging issues, each of which is linked to the other in a complex web
of interdependent relationships’.91 For example, where an adjudicative
decision in one area generates unforeseen policy and budgetary
implications impacting on parties not represented in the particular
litigation.92 The argument is that judicial adjudication of socio-
economic rights would compel the judiciary ‘to encroach upon the
proper terrain of the legislature and executive’, particularly by ‘dictating
to the government how the budget should be allocated’.93 Matters of
policy, it was vociferously argued, are the domain of the executive and
the legislature. Since policy is political, it should be addressed by the
more directly accountable branches of governments, and not by
‘unelected’ courts.94
The separation of powers debate reflects a broader concern over the
legitimacy and effectiveness of entrenching socio-economic rights
provisions in constitutions. Significantly, such concerns are predicated
on the need to guard against judicial usurpation of legislative and
executive power over budgets and core policy priorities while still
enforcing these rights.95
In socio-economic rights adjudication, the Constitutional Court has
taken on a restricted role for the courts. The Court’s stance is that the
legislative and executive branches of government have the primary
responsibility for adopting reasonable legislative and other measures
aimed at fulfilling the socio-economic needs of the populace.96 The
Court has pointed out that the Constitution does not require courts ‘to
take over the tasks that in a democracy should properly be reserved for
the democratic arms of government’ 97 In Mazibuko, O’Regan J said:
Ordinarily it is institutionally inappropriate for a court to determine precisely
what the achievement of any particular social and economic right entails and
what steps government should take to ensure the progressive realisation of the
right. This is a matter, in the first place, for the legislature and executive …
indeed, it is desirable as a matter of democratic accountability that they should
do so for it is their programmes and promises that are subjected to democratic
popular choice.98

A concern for the unforeseen implications of court decisions was also

expressed by the Constitutional Court in TAC, where it stated that:
Courts are ill-suited to adjudicate upon issues where Court orders could have
multiple social and economic consequences for the community. The
Constitution contemplates rather a restrained and focused role for the Courts,
namely, to require the State to take measures to meet its constitutional
obligations and to subject the reasonableness of these measures to evaluation.
Such determinations of reasonableness may in fact have budgetary
implications, but are not in themselves directed at rearranging budgets. In this
way the judicial, legislative and executive functions achieve appropriate
constitutional balance.99

In such a scheme of things, the role of the courts is limited to ensuring

that the state takes measures to meet its constitutional obligations in
respect of socio-economic rights, and that the measures that are taken
are reasonable.100 In that regard, the state is required to set clear targets
for the fulfilment of its socio-economic rights duties.101 Importantly, the
Constitutional Court has made it clear that the government is duty-
bound to explain its policy choices, as well as the information it has
considered in formulating such policies.102 The courts are unlikely to
interfere as long as the policy in question is reasonable and the process
followed in the adoption of that policy is not flawed.
Socio-economic rights enforcement, like civil and political rights,
without doubt, invites judicial inquiry into state policies and
programmes. The Constitution’s explicit entrenchment of a broad range
of socio-economic rights has undoubtedly resolved the justiciability
objections in favour of legitimising judicial enforcement of such rights.
It follows that if courts, in executing their judicial mandate, review the
reasonableness of state measures in the realisation of socio-economic
rights, they are acting within their constitutional remit.103 This clearly
calls into question any rigid interpretation of the separation of powers
doctrine grounded on inflexible functional demarcations between the
three arms of government. The latter approach would most likely
emasculate the courts and prevent them from enquiring into the
reasonableness of executive or legislative measures in the realisation of
socio-economic rights. In any case, the Constitution should never be
interpreted in a manner that envisages bright-line boundaries between
the three arms of government.104

17.5 Guidelines in the interpretation of socio-economic

rights

17.5.1 Introduction
As is the case with the interpretation of all rights, the starting point is
the specific wording of the right concerned. In the case of socio-
economic rights, it will be of particular importance to establish whether
the specific right contains internal modifiers relating, for example, to
‘available resources’ and ‘reasonableness’. However, section 7(2) of the
Constitution will also loom large when a court is called upon to
interpret the socio-economic rights contained in the Bill of Rights.
Section 7(2) – which applies to both civil and political rights and socio-
economic rights105 – imposes both negative and positive obligations on
the state regarding the realisation of rights. This means that it will be
important to interpret the text of a right with reference to the nature of
the negative and positive obligations imposed on the state in terms of
section 7(2). As socio-economic rights arguably impose a wider array of
positive obligations on the state, it is of particular assistance to keep the
array of positive obligations imposed by section 7(2) in mind when
interpreting these rights. A closer look at section 7(2) is therefore
warranted.
 Section 7(2) of the Constitution provides that the ‘state must respect,
protect, promote and fulfil the rights in the Bill of Rights’.106 As was noted
by the Court in Glenister v President of the Republic of South Africa and
Others:
This obligation goes beyond a mere negative obligation not to act in a manner
that would infringe or restrict a right. Rather, it entails positive duties on the
state to take deliberate, reasonable measures to give effect to all of the
fundamental rights contained in the Bill of Rights.107

Elaborating state obligations in this way highlights the fact that states
have an active role to play in the implementation of human rights,
rather than a mere obligation of non-interference with the enjoyment of
human rights.108 In addition, the respect, protect, promote and fulfil
analytic model has unpacked the nature of the duties that human rights
impose on states.109 The following section analyses the nature of the
duties that the socio-economic rights contained in the Bill of Rights
impose on the state.

17.5.2 Duty to respect

The duty to respect requires the state to refrain from carrying out any
practice, policy or legal measure that interferes with the enjoyment of
rights.110 In that regard, this duty enjoins the state to refrain from
interfering directly or indirectly with the enjoyment of rights.111 The
state, therefore, is required to refrain from obstructing or hindering the
enjoyment of rights by adopting privatisation, trade or
commercialisation policies that negatively interfere with the enjoyment
of socio-economic rights.112 Where the limitation of a right, for example
housing rights, is inevitable, South African courts have ruled that the
state must find alternative accommodation for those facing eviction.113

17.5.3 Duty to protect

While the duty to respect is about the imposition of limitations on the
state’s freedom of action, requiring it to abstain from interfering with
the enjoyment of rights, the duty to protect requires the state to act
positively to regulate, prevent and remedy rights breaches by non-state
actors.114 In such a case, the state must regulate individuals and private
entities to ensure that individuals and groups are not arbitrarily
interfered with by other private individuals and groups.115
It follows that the duty to protect imposes a positive obligation on
the state to adopt laws, policies and regulations to protect right holders
from interference by non-state actors.116 Additionally, the state has a
duty to ensure that remedies are available to victims of rights violations.
The duty to protect is a clear recognition that the responsibility of the
state goes beyond its own actions. It also involves protection of the
individual from third party violation.117 Such measures may be in the
form of legislation, policies and judicial decisions.118

17.5.4 Duty to fulfil

The duty to fulfil requires the state to adopt appropriate legislative and
other measures to ensure the full realisation of the right in question.119
The positive duty to fulfil is key to the enjoyment of socio-economic
rights. The duty to fulfil the right to water in section 27(1)(b) for instance
requires the direct provision of water and water services to individuals
and groups who may lack the necessary resources to access the service
by themselves.120 The duty to fulfil should also be interpreted to require
the state to accord the minimum amount of socio-economic provisions
to those who lack the resources to pay for their basic needs.121 There is
no doubt that denial of basic socio-economic needs deprives the
victims of the possibility of living a dignified life.122 The state is thus
enjoined to adopt intervention measures to assist disadvantaged groups
in realising their rights.123 This is in line with the principle laid down
Grootboom that the state should put in place and implement a
reasonable programme which provides immediate relief ‘for people
who have no access to land, no roof over their heads, and who are living
in intolerable conditions or crisis situations’.124
The duty to fulfil, predictably, is the most contentious and difficult to
implement of all the duties imposed by socio-economic rights as
illustrated by the Constitutional Court’s jurisprudence.125 The difficulty
emanates from the fact that it is often difficult to articulate a clear
violation of the duty to fulfil in light of separation of powers concerns
and the role of the courts.126 Such a process involves difficult issues such
as resource allocation and non-legal technical expertise, among
others.127

17.5.5 Duty to promote

The duty to promote entails the adoption of educational and
informational programmes designed to enhance awareness and
understanding of fundamental human rights.128 The full enjoyment of
rights can only take place in a situation where there is sufficient
awareness of those rights by rights beneficiaries and rights holders.129
Access to information is important to enable rights holders to
participate effectively in decision-making processes that have a bearing
on their rights. In that regard, it is important that the Constitution
entrenches the right of access to information.130
It must be noted, however, that slotting claims into one or more of
these duties should not be determinative of the appropriate
interpretative approach in any particular case. The adjudication of
socio-economic rights claims should always be a contextual inquiry
guided by the nature of the interests at stake.131 The degree of emphasis
on any particular duty ultimately depends on the type of rights under
consideration. The need to meaningfully enjoy some of the rights in a
particular context, for example, may demand positive action from the
state, and Grootboom, TAC and Mazibuko are cases in point.

17.6 The obligation on private parties regarding socio-

economic rights
While section 7(2) of the Bill of Rights imposes negative and positive
duties on the state to respect, protect, promote and fulfil socio-
economic rights, this does not mean that socio-economic rights do not
impose duties on private parties as well. This is because, as noted in
chapter 10, the Constitution expressly provides for the horizontal
application of the Bill of Rights in sections 8(1) and 8(2).132 Section 8(1)
provides that the ‘Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state’ and
section 8(2) that a ‘provision in the Bill of Rights binds a natural or
juristic person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty imposed by
the right’.133
The Constitutional Court has held that private parties may, in
specific circumstances, be bound by both the negative and positive
obligations imposed by socio-economic rights.134 In Governing Body of
the Juma Musjid Primary School & Others v Essay N.O. and Others,135 the
Court held that the right to basic education may impose a negative
obligation on a private party ‘not to interfere with or diminish the
enjoyment of a right’.136 The case centred on a dispute between the
owners of private property, the Jumma Musjid Trust, and the KwaZulu-
Natal Department of Basic Education. The Trust had permitted the
Department to establish a public school on its property under certain
conditions. When the Department failed to reimburse the Trust for
certain expenses incurred, the Trust approached the court to obtain an
eviction order. In answering this question of whether an eviction order
should be granted, the Constitutional Court considered whether the
right to basic education guaranteed in section 29 of the Constitution
imposed a negative duty on the Trust. If it did, and if the Trust had not
acted reasonably, the eviction order could not be granted. The Court
held that there was no primary positive obligation on the Trust to
provide basic education to the learners as this obligation rested on the
MEC and the provincial Department.137 However, private parties such as
the Trust did have a duty not to interfere with or diminish the
enjoyment of a right. In coming to this conclusion, the Court had regard
to the ‘intensity of the constitutional right in question, coupled with the
potential invasion of that right’, to conclude that the Trust had a duty
not to impair learners’ rights.138 The importance of the right to
education and the potential drastic infringement of the learners’ rights
thus played a role in the conclusion reached by the Court. Added to this
was the fact that the Trust performed a public function in its dealings
with the school, further fortifying the decision that in this case the Trust
had a constitutional obligation to respect the right to basic education.139
However, because the Trust acted reasonably in its dealings with the
Department, the Court granted the eviction order. Despite this, the
judgment established the important principle that private parties could
be bound by negative obligations imposed by socio-economic rights.
This principle was extended by the Constitutional Court in its
subsequent judgment in Daniels v Scribante and Another140 where the
Court had to consider whether an occupier had a right to make
improvements to his or her dwelling to a standard that made the
dwelling constitutionally compliant. It was argued that this was not
permissible as it would be ‘tantamount to indirectly placing a positive
obligation on the owner to ensure an occupier’s enjoyment’ of the right
to housing.141 This would be so as the owner may later be required to
reimburse the occupier for improvements made to the property. The
majority of the Constitutional Court conceded that when deciding
whether a private party was bound by an obligation imposed by a socio-
economic right, the fact that this was a positive obligation would be an
important factor weighing against a finding of holding the private party
bound. This is because there was a distinction between the obligation
placed on the state and that placed on a private party. The state is
supposed to be motivated by a concern for the well-being of society as a
whole and, in doing something in that regard, it is funded by the public
purse. Private persons, on the other hand, fund their conduct from their
own pockets. It would be unreasonable, therefore, to require private
persons to bear the exact same obligations under the Bill of Rights as
does the state.142 But there will be cases where a socio-economic right
imposes a positive duty on a private party. Whether private persons will
be bound depends on a number of factors:
What is paramount includes: what is the nature of the right; what is the history
behind the right; what does the right seek to achieve; how best can that be
achieved; what is the ‘potential of invasion of that right by persons other than
the State or organs of state’; and, would letting private persons off the net not
negate the essential content of the right? If, on weighing up all the relevant
factors, we are led to the conclusion that private persons are not only bound
but must in fact bear a positive obligation, we should not shy away from
imposing it; section 8(2) does envisage that.143
The Court applied these principles and found that in this particular case
the owner of the property was bound by the possible positive obligation
imposed by the right of security of tenure. In short, the Court held that
given the fact that the applicant in this case was entitled to occupy her
dwelling under conditions that are consistent with human dignity, and
given that this right could only be limited on grounds that ‘are
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom’, the owners of the property would
be bound by the possible future obligation to reimburse the occupier
for improvements made.144
These judgments extend the scope of socio-economic rights into the
private sphere and may in future radically alter the law that governs
private economic relations in South Africa. The application of human
rights norms in the private sphere in fact calls into question the
public/private dichotomy in our legal tradition.145 As noted by
Liebenberg:
The possibility of the horizontal application of the socio-economic rights
provisions in the Bill of Rights invites a critical re-examination of the network
of private law rules and doctrines. It invites the judiciary to participate, along
with the legislature, in the transformation of common-law institutions such as
property and contract, by considering the needs of those who are without
access to basic resources, who are homeless and who lack bargaining power.146

17.7 Enforcing socio-economic rights obligations

17.7.1 Introduction
A noteworthy feature of the Constitutional Court’s socio-economic
jurisprudence is that it has drawn a distinction between the model of
review applied to negative duties imposed by socio-economic rights,
positive duties imposed by immediately realisable socio-economic
rights and positive duties imposed by progressively realisable socio-
economic rights.
Where the state deprives people of their existing access to socio-
economic rights, this constitutes a breach of the negative duty to respect
the relevant rights.147 This happens, for example, where the state closes a
clinic already providing basic health care to people in a district, making
it more difficult or impossible for them to access health care. However,
the breach may be justified by the state if it satisfies the purpose and
proportionality requirements of the general limitations clause
contained in section 36(1).148 Such an approach is in line with the
traditional two-stage approach to constitutional review applied in
respect of most rights in the Bill of Rights.149 Similarly, where the state
fails to fulfil an immediately realisable socio-economic right, essentially
the same model of review is applied. This happens, for example, where
the state fails to provide textbooks to primary schools despite the
constitutional obligation to provide basic education to all.
The failure constitutes a breach of the positive duty to immediately
fulfil the relevant right, but the infringement may be justified by the
state if it satisfies the requirements of the general limitation clause.
Where, however the state fails to fulfil a progressively realisable socio-
economic right (in other words, where it fails to take positive steps to
realise the right), a different model of review is applied. In so far as this
model of review is concerned, two different approaches have been
developed. The one was developed by the United Nations Committee
on Economic Social and Cultural Rights (CESCR) and is commonly
referred to as the ‘minimum core’ approach. The other was developed
by the Constitutional Court and is commonly referred to as the
‘reasonableness’ approach. These approaches are fully discussed below.

17.7.2 Enforcing negative duties

A significant number of cases handled by the courts have dealt with
situations where individuals or groups have been deprived of existing
access to socio-economic rights. A rich body of law has evolved
particularly in the context of the Constitutional Court’s evictions
jurisprudence. Thus, where the Court has found a breach of the
negative duty, any justifications by the state must be evaluated in terms
of the requirements of the general limitations clause provided in section
36 of the Constitution. In respect of the negative duties, the Court has
followed the two-stage analysis applicable to negative civil and political
rights.150 Where a claim is predicated on a rights violation, the Court
considers, at the first stage, whether a particular right is protected in the
Constitution and whether the challenged law or conduct impairs that
right. If the Court finds that the challenged law or conduct does impair
the right in question, at the second stage, the court must determine
whether the infringement is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.
In the case of Jaftha v Schoeman and Others; Van Rooyen v Stoltz
and Others,151 the Constitutional Court held that any measure that
permits a person to be deprived of existing access to adequate housing
constitutes a violation of the negative duty imposed by the right of
access to housing protected under section 26 of the Constitution.
According to the Court, the state must justify such a measure in terms of
the requirements of the general limitations clause.152 The significance of
Jaftha lies in the fact that it is the first case in which the Court
elaborated on the meaning of negative duties in the context of section
26 and, by extension, section 27 of the Constitution. The Court also
adopted a unique approach to the determination of cases alleging
violations of negative obligations relating to these rights.
Jaftha involved a challenge to the constitutionality of provisions of
the Magistrates’ Court Act153 that permitted the sale in execution of
people’s homes in order to satisfy sometimes very small debts. Such
sales in execution would result in the eviction of the applicants from
their state-subsidised homes. The applicants would have no suitable
alternative accommodation should they be evicted, and would not be
eligible again for a housing subsidy from the state.154
The Constitutional Court found that the impugned provisions of the
Magistrates’ Court Act constituted a negative violation of section 26(1)
of the Constitution as they permitted a person to be deprived of existing
access to adequate housing.155 This negative duty, the Court held, was
not subject to the qualifications in subsection (2) relating to
reasonableness, resource constraints and progressive realisation.
According to the Court, deprivations of existing access to housing (and
by implication, other socio-economic rights) can be justified only in
terms of the requirements of the general limitations clause in section 36
of the Constitution. In the Jaftha case, the Court, in carrying out the
limitations analysis in terms of section 36(1) of the Constitution, closely
scrutinised the purposes that the relevant provisions of the Act were
designed to serve, and found them to be overbroad. It thus held that the
relevant provisions were not justifiable.
Jaftha shows that, as is the case with civil and political rights, socio-
economic rights impose negative obligations on the state the breach of
which can be the subject of litigation. Thus, where to the state through
its conduct or legislation deprives people of their existing access to
socio-economic rights, such conduct or legislation will be regarded as a
prima facie breach of sections 26 and 27 of the Constitution. The burden
then shifts to the state to justify such conduct or legislation according to
the general limitations clause. This shows that a stronger model of
review applies to negative duties. In Gundwana v Steko Development
CC and Others,156 the Court extended the Jaftha principles to the
execution of mortgage bonds secured against a debtor’s home in
circumstances where the debtor defaults on her home loan payments. It
is clear that a more demanding standard of review, incorporating a
proportionality assessment, is thus applied when people are deprived of
their existing access to socio-economic rights.157
Another significant feature from the Jaftha and Gundwana cases is
that the negative duty to refrain from interfering disproportionately with
existing access to socio-economic rights applies to non-state actors as
well. In the Grootboom case, the Constitutional Court had already
pointed out that section 26 of the Constitution imposes ‘at the very
least, a negative obligation … upon the State and all other entities and
persons to desist from preventing or impairing the right of access to
adequate housing’.158
It is quite clear from the Constitutional Court’s socio-economic
rights jurisprudence that the enforcement of negative duties is clearly
regarded as less polycentric and cost-intensive within the context of
separation of powers concerns than the enforcement of the positive
duties imposed by progressively realisable socio-economic rights.159
This possibly explains the courts’ willingness to subject the state’s
conduct to a more demanding standard of scrutiny, and impose robust
remedies where breaches are found.160
17.7.3 Enforcing the positive duties imposed by sections 26
and 27 of the Constitution
A noteworthy feature of the Constitutional Court’s socio-economic
jurisprudence is that it has drawn a distinction between the model of
review applied to negative duties imposed by socio-economic rights,
positive duties imposed by immediately realisable socio-economic
rights and positive duties imposed by progressively realisable socio-
economic rights.
As we have already seen, where the state deprives people of their
existing access to socio-economic rights, this constitutes a breach of the
negative duty to respect the relevant rights.161 This happens, for
example, where the state closes a clinic already providing basic health
care to people in a district, making it more difficult or impossible for
them to access health care. However, the breach may be justified by the
state if it satisfies the purpose and proportionality requirements of the
general limitations clause contained in section 36.162 Such an approach
is in line with the traditional two-stage approach to constitutional
review applied in respect of most rights in the Bill of Rights.163 Similarly,
where the state fails to fulfil an immediately realisable socio-economic
right, essentially the same model of review is applied. This happens, for
example, where the state fails to provide textbooks to primary schools
despite the constitutional obligation to provide basic education to all.
The failure constitutes a breach of the positive duty to immediately
fulfil the relevant right, but the infringement may be justified by the
state if it satisfies the requirements of the general limitation clause.
Where, however the state fails to fulfil a progressively realisable socio-
economic right (in other words, where it fails to take positive steps to
realise the right), a different model of review is applied. In so far as this
model of review is concerned, two different approaches have been
developed. The one was developed by the CESCR and is commonly
referred to as the ‘minimum core’ approach. The other was developed
by the Constitutional Court and is commonly referred to as the
‘reasonableness’ approach. These approaches are fully discussed below.

17.7.3.1 The reasonableness approach

17.7.3.1.1 Introduction
In Soobramoney, Grootboom, TAC and Mazibuko, the Constitutional
Court was confronted with the challenge of developing a model for the
enforcement of the positive duties imposed by sections 26 and 27 of the
Constitution. In Soobramoney, the Constitutional Court initially
adopted a model of rationality review for adjudicating the positive
duties imposed by the progressively realisable socio-economic rights
guaranteed in sections 26 and 27. This easy-to-meet and much
criticised standard was, however, replaced by a stricter one in
Grootboom when the Court adopted a model of reasonableness review.
Having adopted a reasonableness approach, it is not surprising that the
Court rejected an invitation to adopt the minimum core approach in
TAC, the latter being a more onerous approach. Some of the adverse
consequences of adopting a reasonableness approach, however, came
home to roost in Mazibuko, which is arguably the Court’s most
controversial socio-economic rights judgment. Each of these cases will
be discussed in turn.

17.7.3.1.2 Soobramoney and the rationality model of review

Soobramoney was the first major case in which the Constitutional Court
was required to interpret the socio-economic rights in the Constitution.
In this case, the applicant suffered from chronic kidney failure and
required regular kidney dialysis to prolong his life. After his funds ran
out and he was no longer able to pay for private kidney dialysis, he
applied to Addington Hospital in Durban for admission to its public
kidney dialysis programme. The Hospital, however, rejected his
application on the grounds that it had a limited number of dialysis
machines and that only those patients whose kidney failure could be
cured or who were eligible for a kidney transplant would be provided
with dialysis treatment. Unfortunately, the applicant’s chronic kidney
failure was irreversible and he was not entitled to a kidney transplant
because he also suffered from vascular disease. After the Hospital
rejected his application, the applicant applied to the KwaZulu-Natal
High Court in Durban for an order declaring its decision to be
unconstitutional and invalid on the grounds that it infringed his right
not to be refused emergency medical treatment guaranteed in section
27(3) of the Constitution or, alternatively, that it infringed his right of
access to healthcare services guaranteed in section 27(1)(a) of the
Constitution. The High Court rejected the application and the appellant
then appealed to the Constitutional Court.
The Constitutional Court dismissed the appeal. In arriving at this
decision, it dealt, first, with the argument based on the right not to be
refused emergency medical treatment in section 27(3) and, second,
with the argument based on the right of access to healthcare services in
section 27(1)(a).
In so far as the argument based on section 27(3) was concerned, the
applicant argued that the phrase ‘emergency medical treatment’ should
be interpreted broadly to include treatment for an ongoing chronic
illness, like his.164 While it was theoretically possible to interpret the
phrase ‘emergency medical treatment’ in this broad manner, the Court
held, this was not the ordinary way in which the phrase is understood.165
In its ordinary sense, the phrase refers to those situations in which a
person suffers a sudden catastrophe and requires immediate medical
attention to avoid further harm.166 If the drafters of the Constitution
intended the phrase to have the broad meaning suggested by the
applicant, then they would have said so expressly, especially because
such a broad meaning would impose onerous responsibilities on the
state.167
In so far as the argument based on section 27(1)(a) was concerned,
the applicant argued that not only was the state obliged to allocate more
funds to Addington Hospital in order to enable it to provide life-saving
treatment to the applicant and others like him,168 but also that the
Hospital was obliged to make better use of its existing dialysis machines
by keeping the renal unit open for longer hours.169 The difficulty with
this argument, the Court held, is that the state’s resources are limited
and it has to allocate these resources in a manner that addresses not
only the right of access to healthcare services, but also the right of
access to housing, food, water and social security.170 Provided the state
allocated its limited resources to these competing claims in a rational
manner, as it had in this case, the Court held further, it would be very
slow to interfere with such a decision.171
Although the Constitutional Court adopted rationality as the
standard by which the courts should measure state compliance with its
positive obligations in relation to socio-economic rights in this case, it
abandoned this model of review approximately three years later and
replaced it with a reasonableness approach in its seminal judgment in
Grootboom.

17.7.3.1.3 Grootboom and the reasonableness model of review

The reasonableness model of review, first developed in Grootboom, is
now the accepted standard of review in cases where a litigant wishes to
challenge the failure of the state (or, in appropriate cases, private
parties) to take positive steps to realise a right which contains the
internal modifier. It therefore applies to cases where a litigant argues
that the state has failed to take reasonable measures within its resources
progressively to realise the right. This means the reasonableness
standard does not only apply to the right of housing, but also to other
rights qualified in a similar way, including the rights protected in
section 27 of the Constitution.
Grootboom concerned a group of adults and children who had
moved onto private land from an informal settlement owing to the
horrendous conditions in which they were living.172 Following their
eviction from the private land, the claimants camped on a sports field in
the area. The claimants found themselves in a precarious position
where they had neither security of tenure, nor adequate shelter from
the elements.173 The group launched an application to the Western Cape
High Court on an urgent basis for an order against all three spheres of
government, requiring them to provide temporary shelter or housing
until they obtained permanent accommodation. The High Court held
that there was no violation of section 26(1) but found a violation of
section 28(1)(c), which protects the right of children to shelter. On
appeal, the Constitutional Court declared that the state’s housing
programme fell short of compliance with section 26(1) and (2).
However, the Court found no violation of the right of children to shelter
protected under section 28(1)(c) of the Constitution.
The Court rejected the contention that the right to housing provided
for in section 26(1) of the Constitution had any interpretive content
independently of the duty to take reasonable measures under section
26(2).174 Notably, the Court rejected an interpretive approach urged by
the amicus curiae, based on the idea that socio-economic rights had a
minimum core content to which all rights bearers are entitled. The
minimum core approach was coined by the CESCR in its General
Comment No.3: The Nature of State Parties’ Obligations.175 The Court
rejected the minimum core approach on the basis that it had
inadequate information before it to determine the minimum core of the
right to adequate housing.
The Constitutional Court held that the rights in the Constitution
must be understood in their contextual setting. This requires
consideration of the Bill of Rights and the Constitution as a whole.176 In
considering the right of access to adequate housing, the Court held that
section 26 must be understood in its context. The Court held that:
The State’s obligation to provide access to adequate housing depends on
context, and may differ from province to province, from city to city, from rural
to urban areas and from person to person. Some may need access to land and
no more; some may need access to land and building materials; some may
need access to finance; some may need access to services such as water,
sewage, electricity and roads. What might be appropriate in a rural area where
people live together in communities engaging in subsistence farming may not
be appropriate in an urban area where people are looking for employment and
a place to live.177

The Court pointed out that the first subsection (section 26(1)) confers a
general right of access to adequate housing and the second subsection
(section 26(2)) establishes and delimits the scope of the positive
obligations imposed on the state to realise that right. It follows that
subsections (1) and (2) are related and must be read together, and not
in isolation from each other. Accordingly, the constitutional right of
access to housing guaranteed in section 26 does not impose a duty on
the state that is not achievable within its available resources.178 As far as
the actual obligations imposed by the right are concerned, several
interrelated but distinct sets of qualifiers must be considered.

17.7.3.1.3.1 ‘Access to’ rights

The first qualifier is contained in the `access to’ phrase in sections 26(1)
and 27(1). Section 26(1) thus provides that everyone has a right of
`access to’ housing and section 27(1) that everyone has a right of
`access to’ health care services, including reproductive health care;
sufficient food and water; and social security. This phrase signals that
the right does not place an obligation on the state immediately to
provide an actual house for every person, although this does not mean
that there is no obligation on the state to build houses (or to provide any
of the services listed in section 27(1)). But it also signals that the
obligation on the state is much broader than building houses or
providing health care services as the needs of different people will be
different and will require different kinds of interventions from the state.
According to the Constitutional Court:
housing entails more than bricks and mortar. It requires available land,
appropriate services such as the provision of water and the removal of sewage
and the financing of all of these, including the building of the house itself. For a
person to have access to adequate housing, all of these conditions need to be
met: there must be land, there must be services, there must be a dwelling.179

The state therefore has a duty to ‘create the conditions for access to
adequate housing for people at all economic levels of our society’, if
necessary also relying on ‘other agents within our society, including on
individuals themselves’.180 State policy dealing with housing must
therefore take account of different economic levels in our society.181 As
there is a difference between the position of those who can afford to pay
for housing, and those who cannot, the state will have to treat the needs
of such differently situated people differently.
For those who can afford to pay for adequate housing, the state’s primary
obligation lies in unlocking the system, providing access to housing stock and a
legislative framework to facilitate self-built houses through planning laws and
access to finance. Issues of development and social welfare are raised in
respect of those who cannot afford to provide themselves with housing. State
 policy needs to address both these groups. The poor are particularly vulnerable
and their needs require special attention.182

These passages suggest that for those who have the means to access
housing (for example by financing the purchase of a house through
taking a bond from a bank), the state would be required to do no more
than to create and maintain the requisite infrastructure and ensure that
it is possible for such individuals to borrow money from a bank under
fair conditions. But for the many people who cannot afford this, the
state’s obligations would be more onerous, including, ultimately
requiring it to build houses to provide an ever-increasing number of
people with better access to housing. While this obligation is not linked
to an individual person and while an individual can therefore not
obtain a court order to force the state to build him or her a house,
anyone can approach a court to challenge its programme for not
increasing access to housing over time.

17.7.3.1.3.2 Reasonableness
The second set of modifiers is, as we have seen, contained in section
26(2) and 27(2) of the Bill of Rights, which determines that as far as its
positive obligations are concerned the state only needs to do what is
reasonable, within its available resources, progressively to realise the
right. The reasonableness of the measures adopted by the state will be
pivotal, which means it is important to establish exactly what criteria a
court will use to determine whether the challenged policy as well as its
implementation are reasonable.
The starting point is to ask is whether the means chosen are
reasonably capable of facilitating the realisation of the socio-economic
rights in question.183 In Grootboom, the Constitutional Court held that
the state’s positive obligation under section 26 of the Constitution was
primarily to adopt and implement a reasonable policy, within its
available resources, which would ensure access to adequate housing
over time.184 This approach, it was held, was designed to allow
government a margin of discretion relating to the specific policy choices
adopted to give effect to socio-economic rights. According to the Court:
 [A] court considering reasonableness will not enquire whether other more
desirable or favourable measures could have been adopted, or whether public
money could have been better spent. The question would be whether the
measures that have been adopted are reasonable. It is necessary to recognise
that a wide range of possible measures could be adopted by the State to meet its
obligations. Many of these would meet the requirement of reasonableness.
Once it is shown that the measures do so, this requirement is met.185

The Court held that, to qualify as reasonable, the state’s housing policy
must:
• be comprehensive, coherent and effective186
• have sufficient regard for the social, economic and historical context
of widespread deprivation187
• have sufficient regard for the availability of the state’s resources188
• make short-, medium- and long-term provision for housing needs189
• give special attention to the needs of the poorest and most
vulnerable190
• be aimed at lowering administrative, operational and financial
barriers over time191
• allocate responsibilities and tasks clearly to all three spheres of
government192
• be implemented reasonably, adequately resourced and free of
bureaucratic inefficiency or onerous regulations193
• respond with care and concern to the needs of the most desperate194
• achieve more than a mere statistical advance in the numbers of
people accessing housing, by demonstrating that the needs of the
most vulnerable are catered for.195

Reasonableness review in practice

The reasonableness review standard has been
criticised for making it more difficult to enforce the
state’s positive obligations to provide access to
housing, health care, sufficient food and water and
social security. (We discuss some of this criticism
below.) The criticism seems to be borne out by the fact
that over the past 10 years very few cases challenging
the reasonableness of government socio-economic
programmes have reached the courts. But this does
not mean the reasonableness standard is so onerous
that it has become impossible successfully to
challenge the failure of the state to realise any of these
rights. Although litigation may not result in the courts
ordering the state to provide individual litigants with
housing or a specific type of health care, it could force
the government to change either its policies or the
manner in which these policies are being
implemented.
To illustrate this point, consider an example
relating to the right of access to health care
guaranteed in section 27(1)(a), read with section
27(2). If the state devised a comprehensive plan to
deal with the spread of COVID-19, a virus that is highly
contagious and kills approximately 2% of all those who
are infected, and part of this programme is to increase
the number of hospital beds available for the
increased number of patients falling sick from the
virus, in terms of the Grootboom principles, the plan,
as well as its implementation, would have to be
reasonable. If the plan provided for an increase in
hospital beds, but only in Cape Town and
Johannesburg, when it is projected that the need for
additional hospital beds would be just as great in
eThekwini, Nelson Mandela Bay and Buffalo City, it may
be possible to challenge this plan in court on the basis
that it is not reasonable. This would particularly be the
case if the evidence showed that those in need of
hospitalisation in these cities would be
disproportionately poor and vulnerable and in
desperate need. If the court declared the plan
unconstitutional for lack of reasonableness, it could
 order the government to rework the plan to ensure that
the plan also responded ‘with care and concern to the
needs of the most desperate’.

In TAC the Constitutional Court followed the same approach developed

in Grootboom when it was asked to apply right of access to health care
services in section 27(1)(a), pointing out that:
[S]ection 27(1) of the Constitution does not give rise to a self-standing and
independent positive right enforceable irrespective of the considerations
mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as
defining the scope of the positive rights that everyone has and the
corresponding obligations on the State to ‘respect, protect, promote and fulfil’
such rights.196

The same interpretive approach was repeated in Mazibuko within the

context of the right of access to sufficient water. The Constitutional
Court emphatically stated that:
Applying this approach to section 27(1)(b), the right of access to sufficient
water, coupled with section 27(2), it is clear that the right does not require the
state upon demand to provide every person with sufficient water … rather it
requires the state to take reasonable legislative and other measures
progressively to realise the achievement of the right of access to sufficient
water, within available resources.197

The Constitutional Court summarised the reasonableness review in

Mazibuko as follows:
A reasonableness challenge requires government to explain the choices it has
made. To do so, it must provide the information it has considered and the
process it has followed to determine its policy … If the process followed by
government is flawed or the information gathered is obviously inadequate or
incomplete, appropriate relief may be sought.198

17.7.3.2 Critique of the reasonableness approach

The reasonableness approach has been interpreted in such a way that
individuals cannot claim individualised remedies in relation to the
state’s positive duty to fulfil socio-economic rights. Rather, individuals
are entitled only to a reasonable programme, the latter being a
collective good to which no single individual can have a stronger claim
than any other similarly situated individual. This approach, the
Constitutional Court held, was intended to allow the government a
margin of discretion relating to the specific policy choices adopted to
give effect to socio-economic rights.199 Significantly, the Court pointed
out that it will assess the reasonableness of the state’s conduct in light of
the social, economic and historical context, including the capacity of
institutions responsible for implementing social rights programmes.200
What is clear is that the reasonableness approach has synergies with the
CESCR’s enunciation that state parties to the ICESCR201 are under an
obligation to take steps that are ‘deliberate, concrete and targeted as
clearly as possible towards meeting the obligation recognized in the
Covenant’.202
A further important requirement which has emerged in the context
of the Constitutional Court’s evictions jurisprudence is that a
reasonable programme should entail ‘meaningful engagement’ with the
affected parties. This introduces a significant aspect of participatory
democracy as a key factor in assessing the reasonableness of how
executive organs adopt and implement social policy.203
The reasonableness approach has however been criticised on the
ground that the Constitutional Court has not provided a sufficient
definition of the substantive content of the various socio-economic
rights.204 While the Court did attempt in Khosa and Others v Minister of
Social Development and Others, Mahlaule and Another v Minister of
Social Development to articulate the goals and values of the right to
social security in section 27(1)(c),205 it made no attempt in TAC, for
example, to articulate the normative content of the right of access to
health care services in section 27(1)(a). Rather the case was resolved in
favour of the claimants primarily on the basis that the arguments put
forward by Government in favour of its restrictive approach to the
provision of Nevirapine were irrational.206
Academic commentators have also asked whether the
Constitutional Court’s interpretive approach is capable of protecting
those who experience severe deprivation of minimum essential levels of
basic socio-economic goods and services.207 Often, such vulnerable
groups are in danger of suffering irreparable harm to their lives, health
and dignity if they do not receive urgent assistance. Irene Grootboom,
who was the first applicant in the landmark Grootboom case, for
example, died in 2008 without a house despite the fact that the Court
had ruled in her favour eight years earlier.
It is also important to note that the reasonableness approach does
not clearly distinguish between determining the scope of the right,
whether it has been breached, and whether an infringement may be
justified. Quinot and Liebenberg have argued that the purpose of the
measures required in terms of sections 26(2) and 27(2) of the
Constitution should be based on the normative goals underpinning the
rights enshrined in sections 26(1) and 27(1).208 Bilchitz has also pointed
out that until some understanding is developed on the content of socio-
economic rights, the assessment of whether the measures adopted by
the state are reasonably capable of facilitating the realisation of a
particular socio-economic right takes place in a normative vacuum.209
It must, however, be noted that the model of reasonableness review
gives the adjudicator a flexible and context-sensitive model for
interpreting socio-economic rights claims. In this regard it permits the
executive the space to design and formulate appropriate policies to
fulfil its socio-economic rights obligations. Quinot and Liebenberg have
rightly argued that the substantive goals provided by the rights in
sections 26(1) and 27(1) of the Constitution ‘narrow the band of
permissible policy choices’.210 It follows that the state’s margin of
appreciation in formulating and adopting policies designed to fulfil
socio-economic rights is not entirely unfettered. Such policies must be
consistent with the normative purposes underpinning these rights. This
implies a rights-sensitive budgeting and policy formulation and
implementation process.211 The state’s policies are also subject to the
requirements of reasonableness.
Of particular importance is the requirement that executive policies
and programmes aimed at meeting the state’s socio-economic rights
duties must provide short-term relief for those in crisis situations.212 It
follows that a statistical improvement in housing delivery will not pass
the reasonableness test if it is not appropriately responsive to the
circumstances and needs of those in desperate situations.213 This
requirement suggests that the government’s justifications will be
subject to heightened scrutiny when a disadvantaged sector of society is
deprived of access to basic goods and services essential for a dignified
existence.214

17.7.3.3 Minimum core approach

The idea of minimum core obligation implies that there are degrees of
fulfilment of a right and that a certain minimum level of fulfilment takes
priority over full realisation of the right.215 Minimum core obligations
arise from the very basic interest people have in survival and the socio-
economic goods required to survive.216 The minimum core content
approach was developed by the CECSR in its General Comment 3217
with the aim of providing clarity on the normative content of
entitlements embodied in socio-economic rights. The CESCR explained
that:
[A] minimum core obligation to ensure the satisfaction of, at the very least,
minimum essential levels of each of the rights is incumbent upon every State
party … [A] State party in which any significant number of individuals is
deprived of essential foodstuffs, of essential primary health care, of basic
shelter and housing, or of the most basic forms of education is, prima facie,
failing to discharge its obligations under the Covenant.218

The CESCR further held that beyond the minimum core entitlements,
the state is obliged to adopt legislative measures to progressively
achieve the full spectrum of the socio-economic rights guaranteed in
the ICESCR.219 In Grootboom, TAC220 and Mazibuko,221 the
Constitutional Court declined to adopt the minimum core approach as
a model of assessing state compliance with the positive obligations
imposed by sections 26 and 27 of Constitution. The Court’s reasoning
included textual, institutional and feasibility considerations.222
In Grootboom, for instance, the Constitutional Court pointed out
that the determination of the minimum core in the context of the right
to have access to adequate housing presents considerable difficulties.
This is because there are some people who need land, others who need
both land and houses and yet others who need financial assistance.223
Furthermore, the Court said that, unlike the CESCR which developed
the notion of the minimum core obligations based on its extensive
experience in reviewing state reports under the ICESCR, it lacked
adequate information on which the content of the minimum core
obligations could be based.224
In TAC, the Constitutional Court followed the same approach as in
Grootboom when it rejected the argument that section 27 of the
Constitution should be interpreted to contain a minimum core content,
stating that:
Although … evidence in a particular case may show that there is a minimum
core of a particular service that should be taken into account in determining
whether measures adopted by the State are reasonable, the socio-economic
rights of the Constitution should not be construed as entitling everyone to
demand that the minimum core be provided to them. Minimum core was thus
treated as possibly being relevant to reasonableness under section 26(2), and
not as a self-standing right conferred on everyone under section 26(1).225

In Mazibuko, the Constitutional Court also followed the same approach

as in Grootboom and TAC when it once again rejected the minimum
core obligations approach, stating that:
[W]hat the right requires will vary over time and context. Fixing a quantified
content might, in a rigid and counter-productive manner, prevent an analysis
of context. The concept of reasonableness places context at the centre of the
enquiry and permits an assessment of context to determine whether a
government programme is indeed reasonable.226

It must, however, be noted that, despite dismissing the minimum core

approach, the Constitutional Court in Grootboom left the door open for
the minimum core approach to play a role in the assessment of the
reasonableness of state conduct. This is provided that sufficient
evidence of the content of such a core obligation is placed before a
court.227
The minimum core concept and reasonableness review are
therefore not necessarily either/or concepts. As reflected by the
Constitutional Court’s dicta in Grootboom, the minimum core concept
can be incorporated within the reasonableness model of review. Some
scholars have argued for a hybrid model that enables the full realisation
of the promise of socio-economic rights.228 As a model of review, the
minimum core helps in defining the content of the rights, such as the
right to water and providing a principled basis for the evaluation of state
policies and programmes aimed at realising the right. On the other
hand, the reasonableness test provides a model for analysing and
evaluating the nature of the state’s obligations imposed by a specific
right. The adapted model is a suitable one in that it combines both
rights analysis and the evaluation of measures adopted by the state to
realise socio-economic rights.229 It must, however, be noted that the
assessment of the reasonableness of government programmes is
influenced by two further criteria derived from sections 26(2) and 27(2)
of the Constitution. These are the concepts of ‘progressive realisation’
and ‘availability of resources’. These are fully discussed below.

17.7.3.4 Progressive realisation

Progressive realisation constitutes an acknowledgement that the full
enjoyment of socio-economic rights will generally not be achieved in a
short period of time.230 Most of the socio-economic rights enshrined in
the Bill of Rights are meant to be realised progressively and such a
formulation is consistent with international law principles. For
example, Article 2(1) of the ICESCR states that:
Each State Party to the present Covenant undertakes to take steps, individually
and through international assistance and co-operation, especially economic
and technical, to the maximum of its available resources, with a view to
achieving progressively the full realisation of the rights recognised in the
present Covenant by all appropriate means, including particularly the
adoption of legislative measures.

The CESCR further elaborated in General Comment 3 that:

The concept of progressive realisation constitutes a recognition of the fact that
full realisation of all economic, social and cultural rights will generally not be
able to be achieved in a short period of time … Nevertheless, the fact that the
realisation over time, or in other words progressively, is foreseen under the
Covenant should not be misinterpreted as depriving the obligation of all
meaningful content. It is on the one hand a necessary flexibility device,
reflecting the realities of the real world and the difficulties involved for any
country in ensuring full realisation of economic, social and cultural rights.231
The Constitutional Court has held that the understanding and meaning
of the phrase ‘progressive realisation’, as formulated by the CESCR,
accords with the context in which the concept is used in the
Constitution, and thus bears the same meaning.232 While section 26(1)
obliges the state to ensure the fulfilment of the right to have access to
adequate housing, section 26(2) imposes a limitation on the enjoyment
of this right. It states that the state must take reasonable legislative and
other measures, ‘within the limits of its available resources,’ to achieve
the ‘progressive realisation of this right.’ In the same vein section 27(2)
obliges the state to take reasonable legislative and other measures
‘within the limits of the resources available’ to achieve the ‘progressive
realisation of the rights of access to health care services, sufficient food
and water, and social security’.
In Grootboom, the Constitutional Court explained that progressive
realisation means that ‘accessibility should be progressively facilitated:
legal, administrative, operational and financial hurdles should be
examined and, where possible, lowered over time’.233 Also, the right
must be made more accessible not only to a larger number of people
but to a wider range of people as time progresses.234 In President of the
Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd,
the Court held in relation to the right to adequate housing, that ‘[t]he
progressive realisation of access to adequate housing, as promised in
the Constitution, requires careful planning and fair procedures made
known in advance to those most affected. Orderly and predictable
processes are vital’.235 According to the Court in Mazibuko, [‘t]he
concept of progressive realisation recognises that policies formulated
by the state will need to be reviewed and revised to ensure that the
realisation of social and economic rights is progressively achieved’.236
Thus, as Liebenberg observes, even where people already have access to
socio-economic rights, progressive realisation places a duty on the
state, over time, to improve the nature and the quality of the services to
which people have access.237
The concept of progressive realisation is key to an understanding of
the nature of states’ obligations. If not carefully construed, however,
progressive realisation in the fulfilment of socio-economic rights is
capable of depriving state obligations of any normative significance.238
Some dimensions of socio-economic rights may involve progressive
realisation to a greater extent than civil and political rights. This is
because in most developed countries, the state has already invested in
the infrastructure, such as the judicial institutions and electoral systems
that are necessary to guarantee and protect civil and political rights.239
The concept of progressive realisation, therefore, must be understood in
light of the aims of constitutionalising socio-economic rights, which is
to establish clear obligations for the state to take steps towards full
realisation of socio-economic rights. This also entails the dismantling of
those obstacles which may impede full realisation of such rights.

Understanding the meaning of progressive

realisation of socio-economic rights
The concept of progressive realisation is key to an
understanding of the nature of the state’s obligations.
If not carefully construed, however, progressive
realisation in the fulfilment of socio-economic rights is
capable of depriving state obligations of any normative
significance.
Some dimensions of socio-economic rights may
involve progressive realisation to a greater extent than
civil and political rights. This is because in most
developed countries, the state has already invested in
the infrastructure such as judicial institutions and
electoral systems necessary to guarantee and protect
civil and political rights.240
The concept of progressive realisation must
therefore be understood in light of state aims of
constitutionalising socio-economic rights, which is to
establish clear obligations for the state to take steps
towards full realisation of socio-economic rights. This
also entails the dismantling of a range of obstacles
that may impede full realisation of such rights.
 In the case of City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another, the Constitutional Court rejected resource
arguments where the claimed shortfall resulted from a
flawed budgeting process. The Court explained that ‘it
is not good enough for the City [of Johannesburg] to
state that it has not budgeted for something, if it
should indeed have planned and budgeted for it in the
fulfilment of its obligations’.241
The significance of the above approach is that it
asserts the principle that a state’s resource-limitation
arguments are irrelevant where those limitations are
the result of its own lack of understanding of its
constitutional or statutory duties.

17.7.3.5 Availability of resources

The availability of resources for the fulfilment of socio-economic rights
is one of the more contentious issues affecting the judicial enforcement
of socio-economic rights.242 A particular challenge is where the resource
implications of a socio-economic claim are extensive and provision has
not been made for such expenditure claim within existing budgetary
provisions.243
When it comes to interpreting the phrase ‘to the maximum of
available resources’, foreign judgments and international standards
have proven to be helpful. The CESCR, for example, has interpreted the
phrase ‘to the maximum available resources’ as entailing resources
existing within a state as well as those available from the international
community.244 The CESCR explained that the considerations that it will
take into account in its evaluation of justifiability of resource constraints
include whether the state party’s decision not to allocate available
resources is in accordance with international human rights standards.245
The Constitutional Court itself has dealt with this issue on more than
one occasion. In Soobramoney,246 for example, the Court had to decide
whether and under what conditions limited resources constitute a valid
basis for limiting access to medical treatment for patients. The Court
noted that the scarcity of resources meant that the demand for kidney
dialysis greatly exceeded the number of available dialysis machines and
that this was a national problem extending to all renal clinics.247
Accordingly, the diversion of additional resources to the renal dialysis
programme and related tertiary health care interventions from within
the health budget would negatively affect other important health
programmes.248 In addition, the Court noted further, if the overall health
budget was to be substantially increased to fund all health care
programmes, this would diminish the resources available to the state to
meet other socio-economic needs such as housing, food, water,
employment opportunities, and social security.249 Given these
constraints, the Court concluded that the decision to refuse Mr
Soobramoney kidney dialysis treatment did not infringe section 27(1)
(a) read with section 27(2) of the Constitution, even though it ultimately
resulted in his death.
Although the Constitutional Court accepted resource constraint
arguments in Soobramoney, it rejected them in Blue Moonlight
Properties250 on the ground that the claimed shortfall resulted from a
flawed budgeting process. The Court held that ‘it is not good enough for
the City [of Johannesburg] to state that it has not budgeted for
something, if it should indeed have planned and budgeted for it in the
fulfilment of its obligations’.251 What is significant about the above
approach is that it asserts the principle that a state’s resource-limitation
arguments are irrelevant where those limitations are the result of its
own lack of understanding of its constitutional or statutory duties.252 It is
also important to note that where a state can show that it lacks the
requisite resources to fulfil the elementary requirements of rights such
as the provision of a minimum amount of socio-economic goods, it still
remains under a duty to seek international co-operation and assistance
under article 2(1) of the ICESCR.253
 The court will not necessarily accept that
resources are not available
In Khosa and Others v Minister of Social Development
and Others; Mahlaule and Another v Minister of Social
Development,254 the Constitutional Court was asked to
confirm an order of invalidity of section 3(c) of the
Social Assistance Act255 which reserved social grants
for aged South African citizens. The Court had to
decide whether individuals who were not citizens of
South Africa but who were permanent residents were
entitled to social assistance as guaranteed by section
27(1)(c) of the Constitution. One of the main
contentions by the state was that the extension of this
benefit to permanent residents would impose an
impermissibly high financial burden on the state.
The Court noted that a Treasury official had
estimated that there are at least 260 000 permanent
residents in South Africa who might qualify for the
grant, but that the state were unable to provide the
Court with accurate figures on exactly how many
people would qualify.256 At best the state’s estimate
was that the extension of the grant to permanent
residents could cost it between R243 million and
R672 million extra. ‘Bearing in mind,’ the Court noted,
‘that it is anticipated that the expenditure on grants
will, in any event, increase by a further R18.4 billion
over the next three years without making provision for
permanent residents, the cost of including permanent
residents in the system will be only a small proportion
of the total cost.’257
The Khosa case was somewhat unique because
the Court found that the impugned section infringed
not only on the right to social assistance guaranteed in
section 27(1)(c) but also on the right not to be unfairly
 discriminated against in terms of section 9(3). The
judgment nevertheless illustrates that the Court will not
necessarily accept claims by the state that no
resources are available to give effect to a particular
socio-economic right.

17.7.3.6 Meaningful engagement

The concept of meaningful engagement is an important development in
the approach of the courts in socio-economic rights litigation to
promote citizenry participation in service provision.258 The
Constitutional Court discussed the concept in earlier cases, most
notably Port Elizabeth Municipality v Various Occupiers,259 but it first
applied the remedy in Occupiers of 51 Olivia Road, Berea Township and
197 Main Street Johannesburg v City of Johannesburg.260
In the context of eviction proceedings, the courts have frequently
made mandatory orders requiring the parties to engage meaningfully.
The reason for such an order is to enable the warring parties to explore
mutually acceptable solutions to the dispute, including the possibility of
securing suitable alternative accommodation for the occupiers facing
eviction. Such meaningful engagement orders are an example of an
innovative type of mandatory order which may be given by a court in
socio-economic rights litigation. The philosophical underpinnings of
such an order is that those facing eviction from their homes should be
given a voice and an opportunity to participate as equals in the
resolution of eviction disputes. Such participation can take the form of
involvement in mediation or the more extensive meaningful
engagement processes elaborated upon by the Constitutional Court in
cases such as Olivia Road, Residents of Joe Slovo, and Schubart Park
Residents Association.
Olivia Road is the leading case in which an order was made for the
parties to engage meaningfully with each other. The Constitutional
Court issued an interim order requiring the City of Johannesburg and
the applicants ‘to engage with each other meaningfully’ in an effort to
resolve the disputes between them ‘in the light of the values of the
Constitution, the constitutional and statutory duties of the municipality
and the rights and duties of the citizens concerned’.261 In its judgment,
the Court affirmed the basic principle that in situations where people
face homelessness consequent upon an eviction, public authorities
should generally engage seriously and in good faith with the affected
occupiers with a view to finding humane solutions to their dilemma.
The Court further held that the failure of a municipality to engage
meaningfully, or an unreasonable response in the engagement process,
‘would ordinarily be a weighty consideration against the grant of an
ejectment order’.262 According to the Court:
Engagement has the potential to contribute towards the resolution of disputes
and to increased understanding and sympathetic care if both sides are willing
to participate in the process. People about to be evicted may be so vulnerable
that they may not be able to understand the importance of engagement and
may refuse to take part in the process. If this happens, a municipality cannot
walk away … It must make reasonable efforts to engage and it is only if these
reasonable efforts fail that a municipality may proceed without appropriate
engagement. It is precisely to ensure that a city is able to engage meaningfully
with poor, vulnerable or illiterate people that the engagement process should
preferably be managed by careful and sensitive people on its side.263

The Court further explained that the objectives of such engagement

could include ascertaining:
• what the consequences of an eviction might be
• whether the City could help in alleviating those dire consequences
• whether it is possible to render the buildings concerned relatively
safe and conducive to health for an interim period
• whether the City had any obligations to the occupiers in the
prevailing circumstances
• when and how the City could or would fulfil these obligations.264

The process of engagement can be considered to align with the right to

dignity as well as the right of political participation.265 As such,
fundamental decisions cannot be taken about people’s lives without
engaging with them and this understanding embodies the ethos of
deliberative democracy.266 An important consequence of the
Constitutional Court’s jurisprudence on meaningful engagement is a
transformed approach to the adjudication of evictions disputes. The
development of innovative procedural and remedial mechanisms to
facilitate the attainment of an equitable balance between housing and
property rights represents the most significant transformation in legal
culture engendered by the judicial enforcement of socio-economic
rights in the Constitution.267
Meaningful engagement as a remedy, however, raises significant
challenges in its operationalisation. Some of these include deciding at
what point to engage with affected communities, defining relevant
communities and stakeholders to be consulted and determining at
what point the state can be considered to have sufficiently engaged
despite a lack consensus on the way forward.268 It is noteworthy that
Olivia Road imposes an important requirement that government avoids
ad hoc engagement whenever possible. Rather, meaningful engagement
requires a team of people with the appropriate training in engagement.
The practical implementation of such a requirement means that the
state must institutionalise269 structures focused on engagement at all the
tiers of government. An institutional structure focused on engagement
would smooth the state’s engagement obligations and ensure that the
engagement process is meaningful and aligns with the underlying
values such a process is intended to protect.270
Apart from meaningful engagement, a key element of the
Constitutional Court’s jurisprudence in this area has been the
requirement that individuals who are evicted must be provided with
alternative accommodation. The Court has recognised that eviction
from a particular property should not be allowed to result in
homelessness which would constitute a further violation of
constitutionally protected housing rights. The requirement of
alternative accommodation was initially outlined in relation to evictions
from public land. In the Blue Moonlight Properties case, however, the
requirement to provide alternative accommodation was also applied to
evictions from private land.271 The state is required in such instances to
step in and ensure individuals are provided with alternative
accommodation.
 Crafting appropriate remedies in socio-economic
17.7.4
rights cases
Judicial responses to socio-economic rights violations that cannot be
justified under the Constitution depend to a large extent on the form of
justice that the courts see themselves as dispensing.272 If a court sees
itself as dispensing distributive justice, it will have to consider the needs
and interests of the entire community beyond the immediate interests
of the litigants before it.273 In most cases, denial of socio-economic
rights tends to be systemic and take place on a large scale, meaning it
cannot feasibly be remedied by a once-and-for-all court order focusing
on the claimant. A significant challenge thus is to strike the right
balance between individual and systemic relief. Adjudicative
institutions enforcing socio-economic rights will often be concerned
with ensuring that the remedies they grant are aimed, not only at
repairing the harms engendered by past rights infringements, but also
at ensuring future compliance with constitutional dictates. This is
perhaps the most important part of the judicial process because
individuals and groups litigate human rights cases for the vindication of
their rights, not only for the present, but also for the future.274
The role of the Constitutional Court, as famously put by Kriegler J in
Fose v Minister of Safety and Security,275 is to ‘attempt to synchronise the
real world with the ideal construct of a constitutional world created in
the image of [the supremacy clause].’ It follows that the Court has a
mammoth responsibility:
Particularly in a country where so few have the means to enforce their rights
through the courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched right has
occurred, it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to ‘forge new tools’ and shape
innovative remedies, if needs be, to achieve this goal.276

Section 38 of the Constitution provides courts with broad remedial

powers in the case of breach or threat of breach of the guaranteed
rights. A court has the power to ‘grant appropriate relief, including a
declaration of rights’.277 Section 172 requires a court to ‘declare that any
law or conduct that is inconsistent with the Constitution, is invalid to
the extent of its inconsistency’278 and permits it to grant ‘any order that
is just and equitable’.279 A key consideration for courts in crafting
remedies in cases involving violations of socio-economic rights is to
ensure the effective vindication and protection of the rights violated.
The Constitutional Court has pointed out that this is important not only
to the immediate victims of the relevant rights violations, but also to
others similarly situated.280
South African courts thus have wide remedial powers to grant
effective remedies in cases involving socio-economic rights
infringements. Adjudicative bodies, under the Constitution, are not
restricted to a fixed list of potential remedies. Rather, they can grant any
appropriate relief that is capable of securing the protection of the rights
in question. The broad powers of the courts to grant appropriate
remedies and to make any order that is just and equitable in the event
of infringement of the protected rights provides scope for adjudicative
bodies to adopt innovative remedies.
A critical consideration, however, is what would constitute an
effective remedy in a given case. Mandatory orders may potentially play
an important role in providing effective relief for violations of socio-
economic rights. This may be important where a remedial framework
provides for a court to assume supervisory jurisdiction over the
implementation of the order made. In terms of such an order, the state
will usually be instructed to devise and present to the court a plan of
action to remedy the violation, and to report back to the court on its
implementation at regular intervals.281
Supervisory orders require the state organ breaching its
constitutional duties to rectify the breach of a right under the
supervision of the court through the submission of periodic reports to
the court on predetermined dates describing in detail the action plan
for remedying the challenged breaches. Supervisory orders are
particularly suited to cases that seek to redress systemic violations of
socio-economic rights.282 Supervisory orders provide an opportunity for
an adjudicative body not only to monitor the implementation of such
orders, but also to enhance the participation of both civil society and
other state institutions such as the Chapter 9 institutions.283
An abiding concern with supervisory orders is that they potentially
infringe the separation of powers principle as courts are drawn into
usurping the functions of executive and administrative organs of the
state through intrusive court orders. It must, however, be noted that the
nature of supervisory orders is that the order is often granted in general
terms, leaving a margin of discretion to the executive and the applicants
to devise a concrete plan to give effect to the constitutional obligations
described in broad terms in the initial order.284 Supervisory orders can
in fact be more responsive to separation of powers concerns than the
traditional final and specific court orders whose inflexible and thus
inefficient nature may intrude on executive authority more than is
necessary to achieve their goals.285
Socio-economic deprivations are systemic in nature, often reflecting
underlying structural social and economic failures resulting in a
significant number of people being deprived of rights.286 The
Constitutional Court’s approach in Grootboom had significant long-
term systemic implications as the principle laid down in the judgment
that short-term relief must be provided for those in desperate need has
been used to interpret legislation such as the Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act (PIE)287 to impose
a general duty on authorities to provide alternative accommodation to
those facing homelessness as a consequence of evictions.288 In the
context of legislative remedies for breaches of the positive duties
imposed by socio-economic rights, the Court has granted the strong,
prescriptive remedy of ‘reading in’ the excluded group of non-national
permanent residents in social security legislation in Khosa. Also in
Jaftha, the Court imposed the strong legislative remedy of reading in
provisions for judicial oversight in legislation allowing for sales in
execution of immovable property in debt-collection proceedings. This
was after the Court held that this legislation made it possible for a poor
person to be deprived of access to their home for unrelated debts
without considering the proportionality of this debt-recovery measure.
In a long line of eviction cases, the Constitutional Court has
interpreted legislation such as PIE to require that, absent exceptional
circumstances, an eviction order should not be granted without public
authorities providing alternative accommodation to those who would
face homelessness as a consequence of the eviction. This principle
applies regardless of the lawfulness of the occupation and whether the
eviction is instituted by organs of state or private parties.289 Effective
responses for violations of socio-economic rights reflect a society
aspiring towards an equitable distribution of resources, social justice
and the protection of marginalised groups.

17.7.5 Immediately realisable socio-economic rights and the

right to education

17.7.5.1 Introduction
Not all socio-economic rights are qualified in the manner that sections
26 and 27 – discussed above – are qualified. Some rights are
immediately realisable, which means they impose an obligation on the
state to ensure everyone has access to the right. The right to basic
education, including adult basic education, which is guaranteed by
section 29(1)(a) of the Constitution, is such a right. Other aspects of the
right to education protected by section 29 – including the right to
further education – are qualified, but not in exactly the same manner
that section 26 and 27 are qualified. In this sense, the right to education
is a hybrid right, containing both immediately realisable aspects, and
aspects that only need to be implemented progressively.
The right to education is a pivotal right as its realisation will
contribute to the realisation of many other rights – including the right to
equality. Educational inequality was deliberately built into the South
African education system, and this was exacerbated by the introduction
of ‘Bantu Education’ after 1948. These overt racist policies were aimed
at creating two separate education systems, one for white people and
one for black people, with the latter designed to limit the ability of black
people to access quality education. While formal legal discrimination in
education was abolished after 1994, the current education system does
not provide equal quality education for all. According to Vally, this
overtly racist system has been replaced by a covertly racist and class-
dominated system. As a result, ‘new’ educational injustices are
preventing poor and marginalised groups from getting universal access
to high-quality education in the ‘new’ South Africa.
The long shadow of apartheid ideology … continues to cast its Stygian gloom,
no longer through racially explicit policies, but by proxy: high school fees,
exclusionary language and admission policies, and other transparent
maneuvers such as ‘crowding out’ black learners by bussing-in white learners
from outside the feeder area.290

The right to education guaranteed in section 29 of the Constitution is

divided into three subsections and each subsection guarantees a
separate right. Section 29(1) thus provides that everyone has the right to
a basic education, including adult basic education and a right to further
education, which the state, through reasonable measures, must make
progressively available and accessible; section 29(2) that everyone has
the right to receive education in the official language or languages of
their choice in public educational institutions where that is reasonably
practicable; and section 29(3) that everyone has the right to establish
and maintain, at their own expense, independent educational
institutions.
In this part of the chapter, we are going to focus on the first two
rights, namely the right to a basic education and further education, and
the right to be educated in the official language of one’s choice at a
public educational institution. This is because these two rights have
proven to be particularly controversial and have been discussed by the
courts on a number of occasions. Apart from these two rights, we are
also going to consider whether there is a right to free higher education.

17.7.5.2 The right to a basic education

17.7.5.2.1 Introduction
The right to education is widely protected in international human rights
instruments, most notably in the founding document of international
human rights, the Universal Declaration of Human Rights (UDHR).
Article 26(2) of the UDHR this provides that:
 Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental
freedoms. It shall promote understanding, tolerance and friendship among all
nations, racial or religious groups, and shall further the activities of the United
Nations for the maintenance of peace.291

Apart from Article 26 of the UDHR, the right to education is also

guaranteed at an international level by Article 13 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), which
provides, inter alia, that:
The State Parties to the present Covenant recognise the right of everyone to
education. They agree that education shall be directed to the full development
of the human personality and the sense of its dignity, and shall strengthen the
respect for human rights and fundamental freedoms. They further agree that
education shall enable all persons to participate effectively in a free society,
promote understanding, tolerance and friendship among all nations and all
racial, ethnic or religious groups, and further the activities of the United
Nations for the maintenance of peace.292

According to the Committee on Economic, Social and Cultural

Rights (CESCR), the right to education is not only a human right in
itself, but also a means through which other rights may be realised. As
an empowerment right, the Committee stated further, ‘education is the
primary vehicle by which economically and socially marginalised
adults and children can lift themselves out of poverty and obtain the
means to participate fully in their communities’. In addition, it also has
an important role to play in ‘empowering women, safeguarding
children from hazardous labour and social exploitation, promoting
human rights and democracy, and protecting the environment and
controlling the population growth’.293
The important role that education can play in transforming society is
particularly significant in the South African context. This is because one
of the painful legacies apartheid has left us is a deeply unequal system
of education. As the Constitutional Court pointed out in Head of
Department: Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another, white public schools were not only well-
funded by the government during the apartheid era, they were also
supported by relatively wealthy white communities. Black public
schools, on the other hand, were not well-funded by the government.
Instead, they were deliberately under-funded and were supported by
relatively deprived black communities. This is why the most abiding
and debilitating legacy of apartheid is the unequal distribution of skills
acquired through education.294

Bantu Education
Prior to the enactment of the Bantu Education,295 the
majority of black schools in South Africa were state-
aided mission schools. Apart from phasing out mission
schools and placing black schools under the central
control of the Department of Bantu Education, this Act
was aimed at entrenching racial segregation, ensuring
that black schools were inferior to white schools and
that black children were educated only for semi-skilled
or unskilled work. At the time the Bantu Education Act
was passed, the then Minister of Native Affairs,
Hendrik Verwoerd, who was also the ‘architect of
apartheid’, stated that:
There is no place for [the Bantu] in the European community
above the level of certain forms of labour … What is the use of
teaching the Bantu child maths when it cannot use it in practice.
That is quite absurd. Education must train people in accordance
with their opportunities in life, according to the sphere in which
they live.

Besides promoting racial segregation and providing

black children with inferior education, the system of
Bantu Education also had some unintended
consequences. One of these was that the number of
black children enrolled in formal schooling increased
dramatically. These young people soon realised,
however, that the system was designed to deny them
decent opportunities in life and that it was up to them
to resist their own oppression through militant action.
 The struggle waged against Bantu Education by
many young black South Africans radicalised them and
they began to play an increasingly important role in the
broader struggle against apartheid, especially during
the 1970s and 1980s. They formed youth
organisations such as the Congress of South African
Students (COSAS) and joined wider political
movements such as the United Democratic Front (UDF)
to form part of the mass resistance that played a
crucial role in ending apartheid.
Unfortunately, the effects of Bantu Education still
strongly influence South Africa’s public education
system today. Research shows that only about a
quarter of South Africa’s public schools function
properly.296 These are mainly former white schools. The
vast majority of black children have no choice but to
attend historically black, mostly poor schools that are
dysfunctional.297 These schools lack a culture of
teaching and learning and remain under-resourced.298
An obvious example of this type of under-
resourcing in the public education system is the state
of school infrastructure.299 Thousands of largely black
children are required to go to schools that have
unacceptable and often dangerous infrastructure. This
impacts negatively on their ability to learn and
succeed. The former homeland areas are the worst
affected by poor school infrastructure. For example, the
number of schools in Limpopo that do not have a
proper library (94%) is much higher than the national
average (77%).300 Black children living in the former
Bantustans are therefore especially disadvantaged in
their opportunities to receive an adequate education.
Apart from addressing the mischief caused by the apartheid system of
education, the Constitutional Court has also traced the decision to
include the right to a basic education in the Constitution back to the
fact that ‘education is an important socio-economic right directed,
among other things, at promoting and developing a child‘s personality,
talents and mental and physical abilities to his or her fullest potential’.301
In addition, it also provides a foundation for a child’s lifetime learning
and work opportunities and, consequently, is an important mechanism
for attaining equality between people and promoting social justice.302 It
assists with individual and social development and is an ‘engine of
equal opportunity’.303
It is in this context that the inclusion of the right to basic and further
education contained in section 29(1) of Constitution must be
understood. This section states that:
Everyone has the right (a) to a basic education including adult education: and
(b) to further education, which the state, through reasonable measures must
make progressively available and accessible.

Given the history of apartheid education, it is not surprising that, unlike

the right of access to housing,304 the right of access to health care
resources,305 or even the right to further education in section 29(1)(b),306
the right to basic education in section 29(1)(a) has no internal modifiers
and, therefore, is immediately realisable. This point was emphasised by
the Constitutional Court in Juma Musjid,307 where the Court held that:
Unlike some of the socio-economic rights, this right is immediately realisable.
There is no internal limitation requiring that the right be ‘progressively
realised’ within ‘available resources’ subject to ‘reasonable legislative
methods’. The right to a basic education in section 29(1)(a) may be limited only
in terms of a law of general application which is ‘reasonable and justifiable in
an open and democratic society based on human dignity, equality and
freedom’. This right is therefore distinct from the right to ‘further education’
provided for in section 29(1)(b). The state is, in terms of that right, is obliged,
through reasonable measures, to make further education ‘progressively
available and accessible’.308

As Woolman and Fleish have pointed out, the fact that the right to a
basic education is immediately realisable has a number of important
consequence.
First, unlike the progressively realisable socio-economic rights,
section 29(1)(a) provides that everyone has a right to basic education
itself and not a right of ‘access’ to basic education. Instead of imposing
an obligation on the state to simply enable people to fulfil this right
themselves, section 29(1)(a) imposes an obligation on the state itself to
fulfil the right.309
Second, again unlike the progressively realisable socio-economic
rights, section 29(1)(a) provides that the right to a basic education is not
subject to ‘reasonable legislative and other measures’. This means that
the reasonableness standard adopted in Grootboom does not apply to
this right. A failure to fulfil this right, therefore, will amount to
infringement even if the state has taken reasonable steps to do so.310
Third, the state’s obligation to fulfil section 29(1)(a) is not subject to
progressive realisation and does not depend on the availability of
resources. This means that the state may not fulfil the right to a basic
education gradually over time. Instead, it must fulfil the right
immediately and a failure to do so will amount to an infringement even
if the state is suffering from a lack of resources.311

Immediately realisable rights and the

limitation clause
Although the right to a basic education is immediately
realisable, this does not mean that it is absolute. An
infringement of the right may still be justified in terms
of the limitation clause. If a person is able to
successfully show that his or her right has been
infringed, then the onus will shift to the state to show
that the right has been infringed by a law of general
application and that the infringement is reasonable
and justifiable in an open and democratic society
based on human dignity, equality and freedom. At this
stage of the inquiry, the state will legitimately be able
to argue that it has taken reasonable steps to fulfil the
rights or that it is suffering from a lack of resources or
that it has to balance the right to a basic education
against other constitutional rights.
The requirement that the limitation of the right to a
basic education must take place in terms of a law of
general application played a key role in Centre for Child
Law and Others v Minister of Basic Education and
Others.312 In this case, the Eastern Cape Provincial
Department of Education (DBE) adopted a new
admission’s policy in terms of which the children of
illegal aliens could be admitted to a public school only
if they or their parents could show that they had
applied to the Department of Home Affairs to legalise
their stay in South Africa. After this policy came into
effect, the applicants applied to the Eastern Cape High
Court for an order declaring it to be unconstitutional on
the ground that it unjustifiably infringed the right to a
basic education.
The High Court granted the order. In arriving at this
decision, it began by finding that the admission’s
policy infringed the right of everyone to a basic
education because the ordinary meaning of the word
‘everyone’ is so broad that it applies to any person who
is within the territorial boundaries of South Africa,
including illegal aliens. If the right applies only to
citizens, it would have expressly said so.313 Having
found that the admissions policy infringed the right to
a basic education, the High Court turned to consider
whether it was justifiable in terms of the limitation
clause. The Court found that it was not justifiable
because the admissions policy could not be classified
as a law of general application.314
Despite coming to the conclusion that the
admissions policy was not a law of general application,
the High Court went on to consider whether it
 nevertheless could be regarded as a reasonable and
justifiable limitation. In this respect, the Department of
Education argued that it was reasonable because it
was aimed at preventing illegal aliens from coming to
South Africa in order to receive free basic education
either for themselves or their children. The High Court,
however, rejected this argument. There was absolutely
no evidence, it held, that illegal aliens come to South
Africa to receive free basic education. They come to
South Africa in search of work.315

Apart from the fact that is immediately realisable, the right to a basic
education – like all other rights – imposes both a negative and a positive
obligation on the state (and, in some instances, private parties). This
point was emphasised by the Constitutional Court in Gauteng
Provincial Legislature: In re Gauteng School Education Bill of 1995,316
where the Court held that:
[The right to basic education] creates a positive right that basic education be
provided for every person and not merely a negative right that such person
should not be obstructed in pursuing his or her basic education.317

The negative dimension means that the state is prohibited from acting
in ways that take away or diminish the existing enjoyment of the right
and from denying or preventing people from taking steps to access
basic education themselves. For example, where the state closes a rural
school, and this makes it more difficult for children to attend school, it
may infringe the state’s negative obligation to respect the right to basic
education. The positive dimension means that the state itself must take
steps to provide a basic education to everyone. For example, where the
state fails to deliver textbooks or fails to build classrooms, this may
infringe on its positive obligation to protect, promote and fulfil the right
to education. As pointed out above, the positive dimension of the right
to a basic education is immediately realisable, which means that it is
not subject to the reasonableness standard, it is not dependent on the
availability of resources and it is the source of a direct and immediate
entitlement.

17.7.5.2.2 The scope and ambit of the constitutional right to ‘basic

education’
The scope and ambit of the right to a basic education, and especially the
positive dimension of the right, has been considered by the courts in
several cases. These cases deal largely with the physical resources
required for access to basic education and arise out of the legacy of
apartheid.
Unfortunately, this legacy has been exacerbated by the failure of the
national and provincial departments of education to discharge their
obligations in an effective and efficient manner over the past 25 years
and many formerly black schools continue to suffer from a lack of
essential physical resources. South African courts have not engaged in a
sustained manner with the content of the right to basic education, as
most cases on the right to education that have come before the courts
have dealt with very specific failures of the state to provide specific
resources. Before we look into some of these cases, it may however, be
helpful to explore what a system that guarantees basic education for all
might look like. A helpful starting point is the World Declaration on
Education for All, adopted by the United Nations-sponsored World
Conference on Education for All in 1990. South Africa’s ministry of
Education has associated itself with the definition contained in article 1
of the Declaration.318 This article makes the following statement on
‘basic learning needs’:
Every person – child, youth and adult – shall be able to benefit from
educational opportunities designed to meet their basic learning needs. These
needs comprise both essential learning tools (such as literacy, oral expression,
numeracy, and problem solving) and the basic learning content (such as
knowledge, skills, values, and attitudes) required by human beings to be able to
survive, to develop their full capacities, to live and work in dignity, to
participate fully in development, to improve the quality of their lives, to make
informed decisions, and to continue learning. The scope of basic learning
needs and how they should continue to be met varies with individual countries
and cultures, and inevitably, changes with the passage of time.319
Building on this definition, the Committee for Social, Economic and
Cultural Rights – in its General Comment No. 13: The Right to Education
– developed a framework known as the ‘Four As’ to give content to the
right.320 These features are as follows:
a) Availability: This feature provides that functioning educational
institutions and programmes have to be available in sufficient
quantity within the jurisdiction of the state party.321
b) Accessibility: This feature provides that educational institutions and
programmes have to be accessible to everyone.322
c) Acceptability: This feature refers to the adequacy and quality of
education and provides that the form and substance of education,
including curricula and teaching methods, have to be acceptable.323
d) Adaptability: This feature requires that education is flexible so it can
adapt to the needs of changing societies and communities and
respond to the needs of students within their diverse social and
cultural settings.324

To provide basic education along the lines envisaged above, would

require a nuanced approach and it may be difficult for courts to
measure whether the state is meeting its obligation to provide basic
education as guaranteed by section 29(1)(a) of the Constitution. South
African courts have, however, engaged specifically with discrete
questions regarding the state’s possible failure to meet its obligations in
terms of section 29(1)(a). Perhaps the most famous of these cases is
Minister of Basic Education v Basic Education for All.325 In this case, the
Department of Basic Education (DBE) prescribed new textbooks for
public schools as a part of a new curriculum it adopted in 2012.
Although it was able to timeously deliver sufficient number of new
textbooks to schools in all of the other provinces, it was unable to do so
in Limpopo. This is partly because the Provincial Department of
Education was dysfunctional. This problem occurred first in 2012, again
in 2013 and yet again in 2014.
When the DBE failed to timeously deliver a sufficient number of new
textbooks in 2014, the applicants – a voluntary association, 22 school
governing bodies and the South African Human Rights Commission –
applied to the Gauteng High Court in Pretoria for an order declaring
that the DBE had infringed the affected learners’ right to a basic
education. Although the DBE argued that it had taken reasonable steps
to deliver the textbooks and that the blame for the shortfall arose out of
the schools’ failure to provide accurate numbers of learners, the High
Court granted the order and instructed the DBE to deliver the
outstanding books within a set time limit. The DBE then appealed to the
Supreme Court of Appeal.
The Supreme Court of Appeal found against the DBE and dismissed
the appeal. In arriving at this decision, the Court held that although the
Constitution itself does not define what is meant by the right to a basic
education, all of the parties agreed that textbooks lay at the heart of the
right. The DBE, however, argued that even though its own policy
documents stated that each leaner should be provided with his or her
own textbook, this was simply a ‘lofty ideal’ and not a constitutional
right. The DBE, therefore, could not be held to that ideal or what it
described as a ‘standard of perfection’.326
The problem with this argument, the Court held, is that it did not
accurately reflect what the DBE’s policy documents actually said. In its
policy documents and its actions, the DBE did not classify the statement
that each learner should be provided with his or her own textbook
simply as a lofty ideal. Instead, they quite correctly classified this
statement as a part of the constitutional right to a basic education. It
followed, therefore, that every learner did have a constitutional right to
be provided his or her own textbook and that the DBE’s failure to do so
unjustifiably infringed this right,327 largely as a result of its own poor
planning.328
Apart from textbooks, the High Court has held that the right to a
basic education also imposes a positive obligation on the state to
provide learners with educational facilities such as schools and
classrooms;329 to appoint both teaching and non-teaching staff to public
schools;330 to provide learners at public schools with stationary331 and
age- and grade-appropriate furniture;332 to provide learners with
transport to and from public schools at state expense where they cannot
afford transport;333 and to provide education to profoundly intellectually
impaired children.334
17.7.5.3 The right to receive education in the language of one’s
choice

17.7.5.3.1 Introduction
The (limited) right to be educated in the official language of one’s
choice has become controversial, especially in the context of
educational institutions that traditionally conducted education
exclusively in Afrikaans. Much of the contestation about this right has
centred on the impact that the use of Afrikaans at educational
institutions might have on the ability of some black South Africans to
access such educational institutions. This right must therefore be
considered with reference to the prohibition on unfair discrimination
protected by section 9(3) of the Constitution. The right to receive
education in the language of one’s choice is guaranteed in section 29(2)
which provides that:
Everyone has the right to receive education in the official language or
languages of their choice in public educational institutions where that
education is reasonably practicable. In order to ensure the effective access to,
and implementation of, this right, the state must consider all reasonable
educational alternatives, including single medium institutions, taking into
account: (a) equity; (b) practicability; and (c) the need to redress the results of
past racially discriminatory laws and practices.

The convoluted nature of this right and especially the reference to single
medium institutions reflects the compromise struck during the
constitutional negotiations between the National Party’s desire to
constitutionally protect Afrikaans-only schools and the African National
Congress’s determination to prevent Afrikaans-only schools being used
to perpetuate racial discrimination. This compromise not only allowed
both parties to move forward and vote in favour of the draft text but also
to claim victory in so far as language rights were concerned.
Before turning to consider the provisions of this right in more detail,
however, it will be helpful to briefly set out the contentious role that
language and particularly Afrikaans has played as a medium of
instruction in South Africa. This is because section 29(2) must be
interpreted in light of this historical context.
The history of Afrikaans medium education
The issue of single medium schools, and especially
single medium Afrikaans schools, has a long and
contentious history in South Africa. Giliomee traces it
back to the years immediately following the South
African war (1899-1902), when the British introduced
English as the sole official language in the former Boer
Republics of the Transvaal and the Orange Free
State.335 This decision was opposed by the defeated
Boers and eventually overturned in 1910 when both
English and Dutch were recognised as official
languages in section 137 of the Union Constitution.336
Following the establishment of the Union, the
campaign to recognise Dutch as an official language
was replaced with a new movement to replace Dutch
with Afrikaans.337 This movement formed a part of the
rise of Afrikaner nationalism in the 1920s and 1930s
and was accompanied by a drive to replace Dutch with
Afrikaans as a medium of instruction and to establish
single medium Afrikaans schools. This was organised
by the Dutch Reformed Church and was based on the
belief that single medium schools would act as a
mechanism for binding the white Afrikaans community
together.338
This movement achieved success following the
National Party’s victory in the 1948 general election
and the introduction of apartheid. One of the National
Party’s goals was to place Afrikaans on an equal
footing with English by developing and promoting the
academic, cultural, political and scientific use of
Afrikaans, through the use of a variety of state
mechanisms, including single medium Afrikaans public
schools and universities.339 As Mogoeng CJ stated in
Afriforum and Another v University of the Free State,
 Afrikaans Universities ‘were exceedingly well-resourced
for the exclusive or primary benefit of white Afrikaner
students. And their inseparable and almost destiny-
defining mandate was to develop the Afrikaans
language very well. As a result, it now effortlessly and
admirably fits President Mandela’s poetic description
of it as a language of ‘scholarship and science’.340
Besides placing Afrikaans and English on an equal
footing, the promotion of single medium schools also
fitted in with the National Party’s policy of separate
development in terms of which each ethnic group
would be educated in its own language. Bantu
Education thus provided that black children would be
educated in their mother tongue in primary school and
then switch to English in high school.341 The apartheid
government’s decision in 1976 to replace English with
Afrikaans in key subjects in black high schools,
however, angered black students and lead to the mass
struggles of the 1970s and 1980s and, ultimately, to
the end of apartheid.342 As Froneman J stated in
Gelyke Kanse and Others v Chairman of the Senate of
the University of Stellenbosch, ‘[t]he apartheid system
“used promotion of the mother-tongue principle,
specifically the advancement of the indigenous
languages as subject and medium of instruction, as a
central instrument of the policy of divide and rule”.
And the 1976 Soweto school uprisings still resonate
deeply in our national psyche’.343

17.7.5.3.2 The general right and its internal modifiers

Although section 29(2) of the Constitution confers a general right on
everyone to be educated in the language or languages of their choice, it
is important to note that this general right is subject to three internal
modifiers, namely education in official languages, education in public
institutions, and where such education is reasonably practicable. An
important consequence of these internal modifiers is that the general
right is restricted. It may be claimed only (a) in respect of education in
an official language or languages; (b) in respect of education in public
institutions; and (c) in those cases in which such education is
reasonably practicable. While the first two internal modifiers are
relatively straightforward, the third gives rise to complex and difficult
issues. Some of these issues have been discussed by the Constitutional
Court in three seminal judgments, namely Hoërskool Ermelo, Afriforum
and Gelyke Kanse. Read together, these judgments show concern for the
potential negative impact that single medium Afrikaans educational
institutions will have in limiting access to educational institutions,
particularly for those black South Africans who do not speak the
language.
The starting point for the correct interpretation of this right is, of
course, the text of section 29(2). In Hoërskool Ermelo, the Constitutional
Court held that this provision is made up of two different parts. The first
part confers a general right on everyone to receive an education in a
public school in a language of choice. This part, however, is subject to
an internal modifier, which states that the choice is available only when
it is reasonably practicable.344 The second part regulates the manner in
which the state must ensure effective access to and implementation of
the right to be taught in the language of one’s choice. It obliges the state
to consider all reasonable educational alternatives, including single
medium instruction. Before it makes this decision, the state must take
into account the factors listed in paragraphs (a), (b) and (c), namely
what is fair, feasible and satisfies the need to remedy the results of past
racially discriminatory laws and practices.345
When it comes to determining whether it is reasonably practicable
to receive education in a language of one’s choice, the Constitutional
Court also held in Hoërskool Ermelo that a court must take into account
all the relevant circumstances of each case. This includes the availability
of and accessibility to public schools, their enrolment levels, the
medium of instruction the governing body has adopted, the language
choices learners and their parent make and the curriculum options
offered. In addition, a court must also consider ‘whether the state has
taken reasonable and positive measures to make the right to basic
education increasingly available and accessible to everyone in a
language of choice’. An important consequence of this obligation is that
‘when a learner already enjoys the benefit of being taught in an official
language of choice the state bears the negative duty not to take away or
diminish the right without appropriate justification’.346

Section 29(2): The Norms and Standards and

the Language in Education Policy
The South African Schools Act gives the Minister the
power to determine national norms and standards for
language policy in public schools.347 The Minister has
done so. Schools must therefore ensure that their
language policies are drafted with reference to these
norms and standards.348 The Minister has also
introduced the Language in Education Policy (The
Ministerial language policy).349 Both the norms and
standards and the Ministerial language policy are
aimed at redressing historically neglected languages.
These two policy documents allow the state to assume
a certain level of control over school language policies
to ensure that all children have access to an adequate
education in their mother tongue or another language
of their choice.
The norms and standards and the Ministerial
language policy provide that where there is no school
in a district offering a learner’s desired language of
instruction, that learner can approach the provincial
education department asking that provision be made
for instruction in their desired language, provided it is
an official language. The norms and standards
distinguish between requests made by learners who
need to enrol in grades one to six and requests from
learners who need to enrol in the higher grades. Where
there are at least 40 learners in this first category and
they are all seeking to be taught in the same grade
then it is reasonably practicable for the provincial
education department to accommodate their needs.
An example of this would be 40 learners in the same
district all needing to attend grade five and wanting to
learn in Sesotho. If a minimum of 35 learners in
grades 7 to 10 in an education district want to enrol in
the same grade it would also be reasonably
practicable for the provincial education department to
accommodate their needs. An example would be 38
learners of the same district who all want to enrol in
grade 12 and who wish to be taught in isiXhosa.
Where there are less than the required minimum
number of learners in an education district asking to
be taught in a particular language in a specific grade
the provincial education department will decide how
best to manage these learners’ needs. When making a
decision the provincial education department must
take into account, among others, the goals of equity,
redress and what is practicable under the
circumstances. The department must also confer with
governing bodies and principals and their input must
be taken into consideration. Even where the necessary
minimum number of learners under the norms and
standards has requested tuition in the same language
for the same grade in a particular school district, their
requests may still be denied due to practical
constraints including financial constraints and a
shortage of qualified teachers able to teach in the
language requested.350
South Africa, unfortunately, does not have a
sufficient number of properly trained teachers able to
teach in all official languages and there is also a lack
 of adequate textbooks written in previously neglected
indigenous languages. This places significant strain on
the state’s capacity to give effect to section 29(2).351
Without significant investment in the development of
previously neglected official languages, the
constitutional right to be able to learn in these
languages where reasonably practicable will be
unrealisable for a long time to come.

The requirement that a court must take into account all the relevant
circumstances of the case means that it would be more difficult for a
higher education institution to invoke section 29(2) in order to provide
education in the language of a specific group. First, there are only a
limited number of higher education institutions in South Africa and
places in these institutions are limited, making it more difficult to justify
a language policy that would deny access to some. Second, the question
of racial exclusion and racial segregation is likely to rear its head. For
example, in Afriforum the Constitutional Court considered the
constitutionality of a decision by the University of the Free State to
change its language policy from an existing Afrikaans-English parallel-
medium system to a new English single-medium system. The focus in
Afriforum, therefore, was not on the positive dimension of section 29(2)
of the Constitution, but rather on the negative dimension of the right.
The Court noted that the parallel-medium language policy adopted by
the University resulted in separate lectures for black and white students.
Black students overwhelmingly attended lectures conducted in English,
while white students attended those conducted in Afrikaans. In light of
this fact, the University commissioned an investigation into its language
policy which found that the language policy was frustrating the
University’s goal of integrating black and white students. The University,
therefore, decided to adopt a new single-medium language policy in
terms of which English would be the primary medium of instruction.
Afriforum challenged this decision on the ground that it infringed
section 29(2). The Court dismissed this claim because it was not
reasonably practicable for the University to continue offering lectures in
both Afrikaans and English. In arriving at this decision, the Court held
that the phrase ‘reasonably practicable’ must be interpreted, not only in
light of the circumstances listed in Hoërskool Ermelo, but also in light of
the second part of section 29(2) and especially the factors listed in
paragraphs (a), (b) and (c) of section 29(2), namely what is fair, feasible
and satisfies the need to remedy the results of past racially
discriminatory laws and practices. This is because these factors are
related to some of the values on which the Constitution is based,
specifically equity, responsiveness and non-racialism.352
Given that these factors are related to equity, responsiveness and
non-racialism, the Court held further, they must be applied even when
‘a learner already enjoys the benefit of being taught in an official
language of choice’. Inequity, unresponsiveness and racial
discrimination, therefore, are an ‘appropriate justification’ for
diminishing or taking away an existing right to be educated in one’s
mother tongue.353 If an existing right to be educated in the language of
one’s choice threatens access, integration and racial harmony then it is
no longer reasonably practicable.354 Reasonable practicability, the Court
concluded, therefore, ‘requires not only that the practicability test be
met, but also that considerations of reasonableness that extend to
equity and the need to cure the ills of our shameful past, be
appropriately accommodated. And that is achievable only if the
exercise of the right to be taught in a language of choice does not pose a
threat to racial harmony or inadvertently nurture racial supremacy’.355
After setting out these principles, the Court turned to apply them to the
facts of the case and came to the conclusion that while the existing
dual-medium Afrikaans-English language policy followed by the
University might be practical, it was not reasonable because it
unwittingly perpetuated segregation and racism. It thus offended
constitutional norms.356
The question of racial exclusion also arose in Gelyke Kanse, but in a
slightly different manner. The Constitutional Court had to consider
whether a decision by the University of Stellenbosch to move from an
existing predominantly Afrikaans parallel-medium system to a new
predominantly English parallel-medium system infringed section 29(2)
of the Constitution. In this case, however, the reason for the changing
the policy was not to combat the problem of racially segregated
lectures, but rather to promote integration, equitable access and non-
racialism in a cost effect manner. The focus in Gelyke Kanse, therefore,
was partly on the role that cost plays in deciding whether a language
policy is reasonably practicable.
Like the University of the Free State, the University of Stellenbosch
was historically an Afrikaans single-medium institution. In 2014,
however, it adopted a predominantly Afrikaans parallel-medium
language policy in order to comply with the Ministerial Language Policy
for Higher Education. In terms of this policy, all courses were offered in
Afrikaans and many, but not all, in Afrikaans and English. In order to
accommodate English speakers, Afrikaans instruction was also
accompanied by real-time translations. Following the Fees Must Fall
and Open Stellenbosch student protests in 2015, however, the
University decided to adopt a new language policy. This new policy
provided that where it was reasonably practicable courses would
continue to be offered in both Afrikaans and English. Where it was not,
courses would be offered in English only, with a subsequent Afrikaans
translation. In other words, all courses would now be offered in English,
but not in Afrikaans. Afrikaans courses would be offered only if there
was sufficient demand and resources.
After the University took this decision, Gelyke Kanse, which was a
voluntary organisation committed to equal chances for all indigenous
languages, applied to the Western Cape High Court in Cape Town for an
order declaring the new language policy to be unconstitutional and
invalid on the ground that it infringed section 29(2) of the Constitution.
The High Court rejected this application and Gelyke Kanse then
appealed to the Constitutional Court. The Constitutional Court also
dismissed the appeal. In the Constitutional Court, Gelyke Kanse
accepted that even though the predominantly Afrikaans parallel-
medium policy did not result in racially separate lectures, it
nevertheless did alienate black students who did not speak Afrikaans
from the academic, residential and social life of the University.357 This
problem could be resolved, however, Gelyke Kanse argued, not by
adopting a predominantly English parallel-medium system, but rather
by adopting a full parallel-medium system in terms of which every
course was offered in both Afrikaans and English.358
In response, the University conceded that this suggestion was
feasible, but went on to argue that it was not reasonably practicable
because it was too expensive.359 The key issue the Court had to decide,
therefore, was whether a student’s existing right to be educated in the
official language of his or her choice can be diminished (although not
extinguished) when this is a more cost-effective means of achieving the
goals of racial equity, access and inclusion.360 The Court held that it
could. Although the predominance of Afrikaans was sacrificed in terms
of the new language policy, when this sacrifice was weighed against the
fact that Afrikaans would still be used as a medium of instruction, that
black students who could not speak Afrikaans would be less
marginalised and stigmatised and that the new language policy was
more cost-effective than the alternative suggested by Gelyke Kanse,
then it was clear that the new language policy was constitutionally
justifiable.361

Further education and language policies

The main legislation concerning public higher
education institutions, including universities, in South
Africa is the Higher Education Act.362 In terms of this
Act the Council of the university is responsible for
governing that university. However, the Council must
function subject to the Higher Education Act as well as
the institutional statute of that specific university.
Section 27(2) of the Higher Education Act makes it the
responsibility of the Council, with the Senate’s
concurrence, to determine and publish a university’s
language policy. It is important to remember that a
university is an organ of state and is therefore bound
to uphold all the rights in the Bill of Rights. This means
that when shaping a language policy the Council and
Senate are constitutionally bound to provide for tuition
in students’ language of choice where this is
reasonably practicable.363
The Higher Education Act provides that the
language policy of a university is ‘subject to the policy
determined by the Minister.’ The Minister has
determined the Language Policy for Higher Education
(the Minister’s policy framework).364 Although
universities must have regard to the Minister’s policy
framework when they create their institution’s own
language policy, they are not bound by this policy
framework.365 A University’s language policy must also
be based on that University’s own ‘peculiarities and
realities on the ground.’366
The Minister’s policy framework is grounded in the
need to promote multilingualism in South Africa’s
institutions of higher learning. The promotion of
multilingualism is viewed as essential for instilling the
values of tolerance and respect for diversity. The
Minister’s policy framework also highlights the need for
languages to be treated with equal worth. It therefore
calls for the encouragement and promotion of
multilingualism in the language policies and practices
of higher education institutions. Universities must put
in place strategies aimed at achieving multilingualism.
The Minister’s policy framework is also focused on
the need to enhance equity and access to universities.
The framework recognises that language plays a critical
role in ensuring that all South Africans are capable of
achieving their full potential. However, language has
historically been and still is a barrier for many students
wanting to gain entry into a university and to succeed
with their studies once there. African students in
particular are adversely affected. African students
entering university are unable to receive tuition in their
 home or other historically neglected indigenous
languages. Many of these students are not completely
proficient in English and Afrikaans. The Minister’s
policy framework therefore declares that all South
African languages should in the medium to long term,
be developed so as to take their rightful place among
English and Afrikaans as mediums of instruction in our
higher education institutions.
The Minister’s policy framework states that it is
committed to ensuring that Afrikaans is retained and
supported as a language of scholarship and science in
South Africa’s higher education institutions. However,
the framework also states that Universities must ensure
that its current language policy does not amount to a
barrier for student access and success. This means
that students should not be unjustly denied an
opportunity to access higher education because they
are unable to communicate in Afrikaans. The policy
endorses President Nelson Mandela’s view that single
medium higher education institutions (institutions that
offer tuition in only one language) should not
deliberately or unintentionally result in furthering racial,
ethnic or cultural separation.

17.7.5.4 The question of free tertiary education

17.7.5.4.1 Introduction
As noted earlier in this chapter, the right to education guaranteed in
section 29(1) of the Constitution is a hybrid right. While section 29(1)(a)
discussed above imposes an immediately enforceable right to basic
education, section 29(1)(b) imposes a programmatic right which is not
immediately enforceable in the same manner. At the same time section
29(1)(b) places internal modifiers on the right that differ from the
internal modifiers imposed on section 26(1) and section 27(1). It is
therefore necessary to discuss this subsection of the right to education
separately, specifically because its scope and content is of immediate
concern in relation to the struggle for free tertiary education.367
Every year hundreds of thousands of learners pass matric with the
dream of studying further. Many of those who qualify to attend tertiary
institutions simply cannot afford to enrol. Black youth in particular are
denied the equal opportunity of accessing further education because of
continuing higher levels of poverty among the black population.
Students at tertiary institutions are also at risk of dropping out because
they cannot afford to continue their studies. Students are
understandably desperate to gain entry to further education institutions
and to complete their studies once there. A tertiary qualification
represents a means for students to achieve their career ambitions. It
also represents for most the opportunity to lift themselves and their
families out of desperate poverty. A lack of government funding towards
higher education over the years has, however, caused a rise in student
fees.
Over the last decade, student fees have grown faster than inflation
levels.368 The inadequacy of government funding has placed universities
and other tertiary institutions under financial strain. Escalating student
fees led to the extraordinary student protests that began at the end of
2015 and spread quickly throughout South African universities. These
student protests sparked the rise of the Fees Must Fall movement. The
movement’s original demand was that student fees not be increased.
This transformed into a demand for free tertiary education for all. The
Fees Must Fall protests eventually led to then President Jacob Zuma
appointing a Commission of Inquiry into Higher Education and
Training in 2016. The Commission was required to investigate whether
free tertiary education for all is achievable in South Africa. At the end of
2017, President Jacob Zuma also seemingly raised the expectations of
many students when he promised that higher education would be made
free for all.
One lens though which to look at this question, is to ask what
obligations section 29(1)(b) of the Constitution impose on the state to
ensure free further education for all. Specifically, we ask what the
guarantee in section 29(1)(b) – which states that everyone has the right
to further education, which the state, through reasonable measures,
must make progressively available and accessible – in fact entails.

17.7.5.4.2 Meaning and content of the right to further education

In Juma Musjid the Constitutional Court noted that the right to basic
education is an immediately realisable right and that the right to further
education is different to that of basic education. This is because section
29(1)(b), unlike 29(1)(a), requires the state to take ‘reasonable
measures’ to make the right to further education ‘progressively
available’ and ‘accessible’ to everyone.369 The Constitutional Court is yet
to decide a case concerning the meaning and content of the right to
further education. The right of access to adequate housing under the
Constitution is, however, also subject to progressive realisation through
reasonable measures (although also subject to the ‘available resources’
qualification). Examining what the Court has said about the duty of the
state to take reasonable steps to achieve the progressive realisation of
the right of access to adequate housing can allow us to better
understand the meaning and scope of section 29(1)(b). The comparison
between the two rights does have its limits as it can be argued that the
right to housing weighs heavier on the state.
Section 29(1)(b) of the Constitution requires the state to take
reasonable measures to ensure that ‘access’ to and the ‘availability’ of
further education is progressively realised. These words do not appear
under the right to a basic education. This already shows one significant
difference between these two rights. The word ‘availability’ is defined as
‘the quality of being able to be used or obtained’.370 Making further
education ‘available’ could potentially be interpreted as ‘the system
must grow to provide sufficient spaces’.371 In other words, it may mean
that there is a responsibility on government to ensure that, eventually,
the higher education sector is large enough to accommodate all those
eligible to obtain a further education.
The word ‘accessibility’ is defined as ‘the quality of being able to be
reached or entered’.372 The requirement of accessibility has been
interpreted to mean that further education must be financially
accessible.373 In other words, it must be affordable to those wanting to
study further. Accessibility could also mean that people should not be
excluded from higher education institutions in a discriminatory way.
For example, a person cannot be denied access to university on the
basis that they are disabled.374 The terms ‘accessible’ and ‘available’ may
therefore mean that the state must take reasonable measures to ensure
that over time: (a) sufficient opportunities are created within the
education sector for people to study further; and (b) that those eligible
to study further are able to make use of the available opportunities.
In Grootboom, Justice Yacoob has explained the meaning of ‘access’
in the context of the section 26(1) which gives everyone the right of
access to adequate housing:
The right delineated in section 26(1) is a right of ‘access to adequate housing’ as
distinct from the right to adequate housing encapsulated in the Covenant. This
difference is significant … [a right of access] suggests that it is not only the state
who is responsible for the provision of houses, but that other agents within our
society, including individuals themselves, must be enabled by legislative and
other measures to provide housing. The state must create the conditions for
access to adequate housing for people at all economic levels of our society.
State policy dealing with housing must therefore take account of different
economic levels in our society.375

It can be seen from Grootboom that the responsibility on the state to

make the right to further education progressively ‘accessible’ does not
necessarily mean that the state must provide further education to all
free of charge. Rather the state could potentially fulfil its responsibility
under section 29(1)(b) by taking steps to enable people to afford entry
into further education themselves. The extent of the state’s obligation to
ensure access to further education should be influenced by the relevant
context. What measures may be needed to facilitate access may differ
from person to person.376 In other words, different people might need
access to different things in order to ensure they can access higher
education.
In discussing the right of access to adequate housing in Grootboom,
Justice Yacoob explained that there is a distinction in the state’s
obligation to realise the right to housing for those who can afford access
to their own house and for those who simply cannot. For those who can
afford access, the state’s obligation extends to putting in place the
legislative and other structures needed to ensure that people are able to
access housing. This includes facilitating access to financing so that
people can build their own houses.377 Like in the context of the right to
housing, it could be argued that government must distinguish between
those whose socio-economic circumstances mean that they are
relatively well positioned to afford to enrol in further education, and
those for whom paying student fees to enrol in a tertiary institution is
completely out of reach. For those relatively well positioned to enrol in
further education, section 29(1)(b) requires that government must put
in place structures to facilitate their access. This may include, for
example, making provision for student loans or for partial state-
sponsored bursaries.
However, the way in which government complies with its obligation
towards the most poor in society who are eligible to enrol in further
education but completely unable to pay for their studies and the
associated costs requires a different response. This is because ‘[t]he
poor are particularly vulnerable and their needs require special
attention’.378 Section 29(1)(b) may therefore be interpreted to require the
state to provide free further education to this category of people in order
to ensure that the opportunity to study further is available and
accessible to those most in need.
Section 29(1)(b) requires the state to take reasonable measures in
order to progressively realise the right of access to further education for
all. Taking reasonable measures in the context of higher education
would require the state to develop ‘a comprehensive and workable
plan’,379 to achieve its goals. In deciding how best to realise the right to
access further education, the state can adopt a wide range of possible
measures.380 It is best left to the executive and legislature to decide on
whether government should provide free tertiary education for all or
whether they should take other reasonable measures to give effect to
the right. National government must however ensure that sufficient
funding is given to higher education so that government can fulfil its
obligations.
Any plan that government develops must include those who are the
poorest and thus the least able to afford to study further. It would not be
sufficient for government to simply say that it has a plan to provide for
more and more people to receive access to a further education over
time. If this plan fails to make provision for the most desperate, and
otherwise eligible, to attend a higher learning institution, it would be an
unreasonable plan.381 In determining whether the particular measures
used by government to realise the right to further education are
reasonable, courts must have regard to the significant value of the right
to further education. Being able to receive a further education is an
empowering right. It is linked to other constitutional rights such as the
right to choose a trade and occupation freely, the right to dignity and
the right to equality. Further education has a key role to play in
achieving the constitutional goals of transforming South Africa into an
equal society with a healthy democracy. The obligation on government
to act reasonably also means that it must move as ‘expeditiously and
effectively’ as possible in order to realise the goal of access to further
education for all.382
Section 29(1)(b) requires that the availability and accessibility of
further education should be progressively achieved. This means that
government must engage seriously with the ‘legal, administrative,
operational and financial’,383 obstacles that stand in the way of ensuring
access to further education for all. Where possible, government should
ensure that these obstacles are ‘lowered over time’.384 The requirement
of progressive realisation means that further education ‘must be made
more accessible not only to a larger number of people but to a wider
range of people as time progresses.’385
Unlike the other socio-economic rights, section 29(1)(b) does not
expressly say that the state’s obligation to fulfil the right to access further
education is subject to ‘available resources’. This could be interpreted as
meaning that the state cannot just rely on a lack of resources to argue
that it has not violated the right. In other words, the state cannot simply
claim that it does not have enough money to make further education
progressively available and accessible to all and then use this an excuse
to say section 29(1)(b) has not been breached. On this interpretation,
the right to further education is stronger than other socio-economic
rights. That ‘available resources’ is not referred to in section 29(1)(b) can
also be interpreted to mean that the right to further education is weaker
than the other socio-economic rights. This is because, for example, with
health and housing the state is required to do all that it can with the
money that it has in order to realise the right.
It can be that the failure by the makers of the Constitution to
mention the words ‘available resources’ in section 29(1)(b) does not
make that much of a difference in how much weight is to be attached to
the right to further education. The state’s available budget remains
relevant in determining whether the state has violated the right. This is
because the amount of money available in the state’s budget for further
education is still an ‘important factor’ in determining whether the types
of measures taken by the state to achieve the right are reasonable.386 For
instance, if the state is underspending its budget for further education,
this may show that the measures that have been taken by the state are
not reasonable. Even where it is found that the state has violated section
29(1)(b), a lack of resources can still be used by the state to argue that
the limitation is reasonable and justifiable under the section 36
limitation clause. It is clear from the detailed analysis of section 29(1)(b)
set out above that the Constitution does not require the state to provide
higher education free of charge for all.

SUMMARY

One of the noteworthy features of the South African Constitution, often

referred to as transformative, is the inclusion of justiciable social and
economic rights. This development has been predicated on the
realisation that socio-economic rights are important in eradicating
poverty, particularly in a country like South Africa with huge socio-
economic discrepancies emanating from the legacy of apartheid. The
apartheid legacy left a divided and unequal country. It is in light of the
above background that one of the key objectives of the Constitution is to
facilitate the transformation of South African society through improving
the quality of life of all citizens. There was therefore a ‘corrective justice’
dimension to the inclusion of socio-economic rights, given the
historical imperative to address the legacy of past injustices.
 Despite the constitutionalisation of socio-economic rights, and the
Court’s clarification in the First Certification Judgment, objections to the
notion of justiciability of socio-economic rights still impact on the way
such rights are enforced. The adjudication of socio-economic rights
raises complex questions relating to the justiciability of these rights, in
particular the legitimacy of thrusting courts into complex and often
contentious fiscal and policy debates that are ordinarily presumed to
fall under the exclusive remit of the other arms of the state.
Socio-economic rights impose both negative and positive
obligations on the state. Negative obligations entail the obligation on
the state not to interfere with the existing enjoyment of rights. Positive
obligations require the state to take positive steps to provide access to
the right. Some positive obligations require immediate action by the
state as the right is not qualified. One such right is the right to basic
education. Other positive obligations require the state to realise the
right in a progressive manner. It is required to do so by acting
reasonably. The Court adopted this reasonableness approach to its
adjudication of the positive duties imposed by socio-economic rights,
and in the process rejecting the minimum core approach. The Court’s
stance is that the legislative and executive branches of government have
the primary responsibility to adopt reasonable legislative and other
measures aimed at fulfilling the socio-economic needs of the populace.
In such a scheme of things, the role of Court is limited to ensuring that
the state adopts reasonable legislative and other measures to fulfil its
socio-economic rights obligations. The courts are unlikely to interfere
for as long as the measures in question are reasonable and the process
followed in the adoption is not flawed.
The reasonableness approach has, however, been criticised in that
the Court does not provide a sufficient definition of the substantive
content of the various socio-economic rights in the Constitution during
the adjudication process. Court observers have also questioned
whether the Court’s interpretive approach is capable of protecting those
who are experiencing severe deprivation of minimum essential levels of
basic socio-economic goods and services. Often, such vulnerable
groups are in danger of suffering irreparable harm to their lives, health
and dignity if they do not receive urgent assistance.
 It must, however, be noted that the model of reasonableness review
gives the adjudicator a flexible and context-sensitive model for
interpreting socio-economic rights claims. In that regard, it permits the
executive the space to design and formulate appropriate policies to
fulfil its socio-economic rights obligations. The state’s margin of
appreciation in formulating and adopting policies designed to fulfil
socio-economic rights is thus not entirely unfettered. Such policies
must be consistent with the normative purposes underpinning these
rights. This implies a rights-sensitive budgeting and policy formulation
and implementation process.
South African courts thus have wide remedial powers to grant
effective remedies in cases involving socio-economic rights
infringements. Adjudicative bodies, under the Constitution, are not
restricted to a fixed list of potential remedies. Rather, they can grant any
appropriate relief that is capable of securing the protection of the rights
in question. The broad powers of the courts to grant appropriate
remedies and to make any order that is just and equitable in the event
of infringement of the protected rights provides scope for adjudicative
bodies to adopt innovative remedies. A critical consideration, however,
is what would constitute an effective remedy in a given case.
In most cases, denial of socio-economic rights tends to be systemic
and take place on a large scale, meaning such lack of access cannot
feasibly be remedied by a once-and-for-all court order focusing on the
claimant. It is in that respect that structural interdicts discussed in this
chapter are particularly well suited to the progressive realisation of
socio-economic rights. Guidance and regular supervision by courts will
ensure that any engagement process is underpinned by the norms and
values entrenched in the Bill of Rights.

1 The increasing recognition of such rights in national constitutions has been on the rise.
Importantly, South Africa, on 12 January 2015, ratified the International Covenant on
Economic, Social and Cultural Rights (ICESCR) UN Doc A/6316, the pre-eminent
international human rights instrument on economic, social and cultural rights (socio-
economic rights), among a suite of international instruments that provide for socio-
economic rights.
2 Moyo, K ‘The advocate, peacemaker, judge and activist: A chronicle on the contributions of
Justice Johann Kriegler to South African constitutional jurisprudence’ in Bohler-Muller, N,
 Cosser, M and Pienaar, G (eds) (2018) Making the Road by Walking: The Evolution of the
South African Constitution 78–9.
3 Bilchitz, D (2018) ‘The performance of socio-economic rights in the South African
Constitution’ in Dixon, R and Roux, T (eds) Constitutional Triumphs, Constitutional
Disappointments: A Critical Assessment of the 1996 South African Constitution’s Local and
International Influence 45–87 at 45.
4 See De Vos, P and Freeman, W (2014) South African Constitutional Law in Context 667.
5 Bilchitz (2018) 45.
6 De Vos and Freedman (2014) 684. In the process of adjudicating disputes on the basis of
constitutionally entrenched socio-economic rights, courts interpret these rights and give
concrete and authoritative expression to the duties they impose.
7 See Chenwi, L ‘An appraisal of international law mechanisms for litigating socio-economic
rights, with a particular focus on the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights and the African Commission and Court’ in
Liebenberg, S and Quinot, G (eds) (2012) Law and Poverty: Perspectives from South Africa
and Beyond 241.
8 Moyo (2018) 78.
9 McLean, K (2009) Constitutional Deference, Courts and Socio-Economic Rights in South
Africa vii.
10 McLean (2009) vii.
11 McLean (2009) vii.
12 McLean (2009) vii.
13 Government of the Republic of South Africa (2011) National Development Plan 2.
14 See Education and Training Unit (2016) How Government Works 13.
15 Liebenberg, S (2010) Socio-Economic Rights: Adjudication under a Transformative
Constitution 2.
16 See Langford, M ‘The justiciability of social rights: From practice to theory’ in Langford, M
(ed) (2008) Social Rights Jurisprudence: Emerging Trends in International and Comparative
Law 33.
17 See Langford (2008) 98.
18 Statistics South Africa estimates for the amount an individual needs to buy basic foods and
services. See Education and Training Unit (2016) 13.
19 See Education and Training Unit (2016) 13.
20 See Education and Training Unit (2016) 13–14.
21 See Government of the Republic of South Africa (2011) 4.
22 See Preamble to the Constitution.
23 Klare, KE (1998) Legal culture and transformative constitutionalism South African Journal
on Human Rights 14(1):146–88.
24 Moyo (2018) 78.
25 See Preamble to and s 1 of the Constitution.
26 See Madlingozi, T (2007) Post-Apartheid Social Movements and the Quest for the Elusive
`New’ South Africa Journal of Law and Society 34(1):77–98; Wesson, M (2018) The Limits of
Constitutional Justice Public Law Review 29(1):63 and Shai, I (2019) Radical transformation
and the limits of law Acta Academica 51(1):144–62.
27 Madlingozi, T (2017) Social justice in a time of neo-apartheid constitutionalism: critiquing
the anti-black economy of recognition, incorporation and distribution Stellenbosch Law
Review 8(1):123–47.
28 Davis, DM (2006) Adjudicating the Socio-Economic Rights in the South African
Constitution: Towards Deference Lite South African Journal on Human Rights 22(2):301–27
at 315.
29 Davis (2006) 315.
30 The Constitutions of Kenya (2010) and Zimbabwe (2013) have followed suit in
constitutionalising judicially enforceable socio-economic rights.
31 For a summary of the debates surrounding the inclusion of justiciable socio-economic
rights in the Constitution, see Keightley, R (2011) The challenges of litigating socio-
economic rights in South Africa New Zealand Law Review 2011(2): 296–99.
32 Bilchitz (2018) 49.
33 Keightley (2011) 296.
34 Soobramoney v Minister of Health (KwaZulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1)
SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997) para 8.
35 Bilchitz (2018) 49, citing Mbazira, C (2009) Litigating socio-economic rights in South Africa:
A choice between corrective and distributive justice 103–11.
36 Keightley (2011) 296.
37 Bilchitz (2018) 49.
38 Keightley (2011) 297.
39 Keightley (2011) 297.
40 Keightley (2011) 297.
41 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) paras 77–8.
This judgment is commonly referred to as the First Certification Judgment.
42 First Certification Judgment para 77.
43 First Certification Judgment para 78.
44 First Certification Judgment para 77.
45 First Certification Judgment para 78.
46 Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010
4 SA 1 (CC) ; 2010 (3) BCLR 239 (CC) (8 October 2009) para 61.
47 Biegon, J ‘The inclusion of socio-economic rights in the 2010 constitution: Conceptual and
practical issues’ in Biegon, J and Musila, GM (eds) (2011) Judicial Enforcement of Socio-
Economic Rights under the new Constitution: Challenges and Opportunities for Kenya 13, 14.
48 Biegon (2011) 18.
49 Sunstein, CR Against positive rights: Why social and economic rights don’t belong in the
new constitutions of post-communist Europe East European Constitutional Review 2:35–8.
50 Ray, B (2016) Engaging with social rights: Procedure, participation and democracy in South
Africa’s second wave 11.
51 Chirwa, DM and Chenwi, L ‘The protection of economic, social and cultural rights in Africa’
in Chirwa, DM and Chenwi, L (2016) The Protection of Economic, Social and Cultural Rights
in Africa: International, Regional and National Perspectives 17.
52 Chirwa and Chenwi (2016) 15.
53 See s 26 of the Constitution.
54 S 27 of the Constitution.
55 S 29 of the Constitution.
56 S 28(1)(c) of the Constitution.
57 S 35(2)(e) of the Constitution.
58 Soobramoney and Minister of Health and Others v Treatment Action Campaign and Others
(No 2) (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (5 July
2002).
59 Government of the Republic of South Africa and Others v Grootboom and Others
(CCT11/00) [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (4 October
2000).
60 Khosa and Others v Minister of Social Development and Others (CCT 13/03, CCT 12/03)
[2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004).
61 Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010
(4) SA 1 (CC); 2010 (3) BCLR 239 (CC) (8 October 2009).
62 Joseph and Others v City of Johannesburg and Others (CCT 43/09) [2009] ZACC 30; 2010 (4)
SA 55 (CC); 2010 (3) BCLR 212 (CC) (9 October 2009).
63 Nokotyana and Others v Ekurhuleni Municipality and Others CCT 31/09) [2009] ZACC 33;
2010 (4) BCLR 312 (CC) (19 November 2009).
64 See Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo and
Others 2010 (2) SA 415 (CC); AfriForum and Another v University of the Free State
(CCT101/17) [2017] ZACC 48; 2018 (2) SA 185 (CC); 2018 (4) BCLR 387 (CC) (29 December
2017) and Gelyke Kanse and Others v Chairman of the Senate of the University of
Stellenbosch and Others (CCT 311/17) [2019] ZACC 38; 2020 (1) SA 368 (CC); 2019 (12)
BCLR 1479 (CC) (10 October 2019).
65 See ss 26(2) (housing) and 27(2) (health care, food, water and social security).
66 Minister of Health and Others v Treatment Action Campaign and Others (CCT 08/02) [2002]
ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (5 July 2002) para 39.
67 Mazibuko para 50.
68 Grootboom para 38.
69 TAC para 31. See also Mazibuko paras 49–50.
70 Grootboom para 95.
71 See ss 26(3) and 27(3) of the Constitution.
72 Bilchitz (2018) 51.
73 Liebenberg, S (2014) Judicially enforceable socio-economic rights in South Africa: Between
light and shadow Dublin University Law Journal 37:137–72 at 145.
74 In this regard, the Constitutional Court has upheld a two-stage approach to constitutional
interpretation. The first phase consists of interpreting the scope of the right and whether
the applicant’s claim falls within this scope. The second stage consists of assessing whether
or not any limitation the state relies on is reasonable and justifiable in terms of the
requirements of the general limitations clause contained in s 36 of the Constitution.
75 S 10.
76 S 32. This right has been given effect under the Promotion of Access to Information Act 32
of 2000.
77 S 32.
78 S 33.
 Liebenberg, S (2010) Socio-Economic Rights Adjudication under a Transformative
79 Constitution 93.
80 Keightley (2011) 303.
81 Mazibuko para 166.
82 Groomboom paras 71–8.
83 Sachs, A The judicial enforcement of socio-economic rights: The Grootboom case in Jones,
P and Stokke, K (eds) (2005) Democratising Development: The Politics of Socio-Economic
Rights in South Africa 133.
84 Biowatch Trust v Registrar, Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009
(6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) (3 June 2009).
85 In Biowatch, the Court expressly recognised the importance of the involvement of public
interest organisations in constitutional cases.
86 First Certification Judgment para 111.
87 South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000]
ZACC 22; 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC) (28 November 2000) paras 18–22.
88 Liebenberg (2010) 66.
89 See Soobramoney and Mazibuko.
90 Fuller, L and Winston, KI (1978–1979) The forms and limits of adjudication Harvard Law
Review 92(2):353–409.
91 Liebenberg (2010) 72.
92 Fuller (1978–1979) 353–409.
93 See First Certification Judgment para 77.
94 Langford (2008) 31.
95 Ray (2016) 16. See also Pieterse, M (2004) Possibilities and pitfalls in the domestic
enforcement of social rights: Contemplating the South African experience Human Rights
Quarterly 26(4):882–905.
96 Keightley (2011) 307.
97 Mazibuko para 161.
98 Mazibuko para 61.
99 TAC para 38.
100 TAC para 38.
101 Mazibuko para 70.
102 Mazibuko para 71.
103 Langford (2008) 32.
104 First Certification Judgment para 111.
105 The Committee on Economic, Social and Cultural Rights (CESCR) has adopted the quartet
of state obligations in elucidating the obligations imposed by the various provisions of the
ICESCR though the obligation to promote tends to be encapsulated under the obligation to
fulfil.
106 See TAC para 39 and Grootboom para 84.
107 Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6;
2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) (17 March 2011) para 105.
108 Leckie, S (1998) Another step towards indivisibility: identifying the key features of
violations of economic, social and cultural rights Human Rights Quarterly 20(1):81–124 at
91.
 Sepulveda, MM (2003) The Nature of Obligations under the International Covenant on
109
Economic, Social and Cultural Rights 12 and 172.
110 Craven, M (1993) The domestic application of the International Covenant on Economic,
Social and Cultural Rights Netherlands International Law Review 40(3):367–404 at 110.
111 Biegon (2011) 13, 22.
112 Moyo, K ‘Taming the leviathan: An analysis of the extraterritorial application of the right to
water under the African system for the protection of human rights’ in Chenwi, L and Bulto,
T (eds) (2018) Justice Beyond Borders: The Extraterritorial Reach of African Human Rights
Instruments Intersentia 170.
113 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another [2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) (1 December
2011).
114 See Gross, AM ‘The right to health in an era of privatisation and globalisation: National and
international perspectives’ in Barak-Erez, D and Gross, AM (2007) Exploring Social Rights:
Between Theory and Practice 303.
115 Craven (1993) 112.
116 Moyo (2018) 171.
117 Craven (1993) 112.
118 Such third parties include individuals, groups, corporations and any other entities as well
as other agents acting under state authority.
119 See De Schutter, O (2010) International Human Rights: Cases, Materials, Commentary 461.
120 Moyo (2018) 172–74. See also Committee on Economic, Social and Cultural Rights (2002)
General Comment No 15 The Right to Water UN Doc E/C.12/2002/11 para 12(c)(ii).
121 Committee on Economic, Social and Cultural Rights (2002) General Comment No 15 The
Right to Water UN Doc E/C.12/2002/11 para 12(c)(ii) where the it is stated that’ [t]he duty
to fulfil should also be interpreted to require the state to accord the minimum amount of
socio-economic provisions to those who lack the resources to pay for their basic needs.’
122 Moyo (2018) 172–74.
123 Moyo (2018) 172–74.
124 Grootboom para 99.
125 See Grootboom, TAC, Soobramoney and Mazibuko cases.
126 Pejan, R (2004) The right to water: the road to justiciability The George Washington
International Law Review 36:1181–210 at 1186.
127 Pejan (2004) 1186.
128 Kok, A ‘Privatisation and the right to access to water’ in De Feyter, K and Isa, FG (eds)
(2005) Privatisation and Human Rights in the Age of Globalisation 281.
129 See Committee on Economic, Social and Cultural Rights Human Rights Education and
Public Information Activities Relating to the ICESCR (1996) UN Doc E/1996/22, Chapter IV
para 324.
130 The right to access information is constitutionally entrenched in s 32 of the Constitution.
131 Liebenberg, S ‘Adjudicating socio-economic rights under a transformative constitution’ in
Langford, M (ed) (2008) Socio-Economic Rights: Emerging Trends in International and
Comparative Law 78.
132 Liebenberg (2008) 78 has defined ‘horizontal application of the Bill of Rights’ as referring to
the applicability of the Bill of Rights in relations between private parties.
133 For a discussion on the horizontal application of South Africa’s Bill of Rights, see
Liebenberg (2008) 78–9.
134 Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8)
BCLR 949 (CC) (11 May 2017) para 48.
135 (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011).
136 Juma Musjid para 58.
137 Juma Musjid para 57.
138 Juma Musjid para 58.
139 Juma Musjid para 59.
140 (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017).
141 Daniels para 37.
142 Daniels para 40.
143 Daniels para 39.
144 Daniels para 54.
145 Liebenberg Socio-Economic Rights (2010) 61.
146 Liebenberg Socio-Economic Rights (2010) 63.
147 Grootboom para 34.
148 S 36 of the Constitution.
149 Quinot, G and Liebenberg, S ‘Narrowing the Band: reasonableness review in administrative
justice and socio-economic rights jurisprudence in South Africa’ in Liebenberg, S and
Quinot, G (eds) (2012) Law and Poverty: Perspectives from South Africa and Beyond 63.
150 Quinot and Liebenberg (2012) 309.
151 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25;
2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004).
152 Jaftha paras 31–4.
153 Act 32 of 1944
154 Jaftha para 12.
155 Jaftha paras 31–4.
156 Gundwana v Steko Development CC and Others (CCT 44/10) [2011] ZACC 14; 2011 (3) SA
608 (CC); 2011 (8) BCLR 792 (CC) (11 April 2011).
157 Liebenberg (2014) 155.
158 Grootboom para 34.
159 Liebenberg (2014) 155.
160 Liebenberg (2014) 155.
161 Grootboom para 34.
162 S 36 of the Constitution.
163 Quinot and Liebenberg (2012) 63.
164 Soobramoney para 12.
165 Soobramoney para 13.
166 Soobramoney para 20.
167 Soobramoney para 19.
168 Soobramoney para 23.
169 Soobramoney para 27.
170 Soobramoney para 31.
171 Soobramoney para 29.
172 Grootboom para 3.
173 Grootboom paras 9–11.
174 Grootboom paras 34–46.
175 Committee on Economic, Social and Cultural Rights (1991) General Comment No. 3 on the
Nature of States Parties’ Obligations (Fifth Session, 1991), U.N. Doc E/1991/23. The Court
considered and rejected the approach again in TAC at paras 26–39.
176 Grootboom para 22.
177 Grootboom para 37.
178 Grootboom para 20.
179 Grootboom para 35.
180 Grootboom para 35.
181 Grootboom para 35.
182 Grootboom para 36.
183 Grootboom para 41.
184 Grootboom para 41.
185 Grootboom para 41.
186 Grootboom para 40.
187 Grootboom para 43.
188 Grootboom para 46.
189 Grootboom para 43.
190 Grootboom para 42.
191 Grootboom para 45.
192 Grootboom para 39.
193 Grootboom para 42.
194 Grootboom para 44.
195 Grootboom para 44.
196 TAC para 39.
197 Mazibuko para 50.
198 Mazibuko para 71.
199 Mazibuko para 71.
200 See Grootboom para 43.
201 The ICESCR is the primary human rights instrument on economic, social and cultural
rights at the international level.
202 CESCR General Comment No. 3 para. 2.
203 See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City
of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475
(CC) (19 February 2008) paras 10, 16–18.
204 Mbazira, C (2008) Enforcement of Socio-Economic Rights in South Africa: Strengthening
the Reasonableness Approach Nordisk Tidsskrift for Menneskerettigheter 26:131, 136.
205 See, for example, Khosa v Minister of Social Development; Mahlaule v Minister of Social
Development 2004 6 SA 505 (CC) paras 74, 76–77, 79–81.
206 Quinot and Liebenberg (2012) 657.
207 Bilchitz, D (2003) Towards a reasonable approach to the minimum core: Laying the
foundations for future socio- economic rights jurisprudence South African Journal on
 Human Rights 19 (1):1–26 at 9–10.
208 Quinot and Liebenberg (2012) 648.
209 Bilchitz (2003) 9–10.
210 Quinot and Liebenberg (2012) 649.
211 Quinot and Liebenberg (2012) 649.
212 Liebenberg (2008) 89.
213 Grootboom para 44.
214 See Grootboom para 79.
215 Bilchitz (2003) 11.
216 Bilchitz (2003) 11.
217 See CESCR General Comment No. 3.
218 CESCR General Comment No. 3 para 10.
219 CESCR General Comment No. 3 para 10.
220 TAC.
221 Mazibuko.
222 See Grootboom paras 23–33; TAC paras 26–39; Mazibuko paras 51–62. The Court pointed to
the difficulty of defining the content of minimum core obligations, a concern that any
definition would not reflect the diversity of needs of differently placed groups, and an
incompatibility with the institutional roles and competencies of the courts.
223 Grootboom para 33.
224 Grootboom para 31.
225 TAC para 34.
226 Mazibuko para 59.
227 Grootboom para 33.
228 Musila, GM ‘Testing two standards of compliance: A modest proposal on the adjudication
of positive socio-economic rights under the new constitution’ in Biegon, J and Musila, GM
(2011) Judicial Enforcement of Socio-Economic Rights under the New Constitution 87.
229 Liebenberg (2014) 168.
230 CESCR General Comment No. 3 para 9.
231 CESCR General Comment No. 3 para 9.
232 Grootboom para 45.
233 Grootboom para 45.
234 Grootboom para 45.
235 President of the Republic of South Africa v Moddderklip Boerdery (Pty) Ltd (CCT20/04)
[2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005) para 49.
236 Mazibuko para 40.
237 Liebenberg (2010) 188.
238 CESCR General Comment No. 3 para 9.
239 Liebenberg (2010) 191.
240 Liebenberg (2010) 191.
241 Blue Moonlight Properties para 74.
242 Riedel, E ‘Economic, social and cultural rights’ in Krause, C and Scheinin, M (eds) (2009)
International Protection of Human Rights: A Textbook 2nd ed rev service 137.
243 Liebenberg (2010) 192
 See United Nations Committee on Economic, Social and Cultural Rights An Evaluation of
244 the Obligations to Take Steps to the Maximum of Available Resources under an Optional
Protocol to the Covenant (2007) UN Doc E/C.12/2007/1 para 5.
245 CESCR (2007) para 8.
246 Soobramoney.
247 Soobramoney para 24.
248 Soobramoney paras 27–8.
249 Soobramoney para 28.
250 Soobramoney para 61.
251 Soobramoney para 61.
252 Ray (2016) 157.
253 South Africa is a state party to the ICESCR which it ratified on 12 January 2015.
254 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4
March 2004).
255 Act 59 of 1992.
256 Khosa para 61.
257 Khosa para 62.
258 Chenwi, L and Tissington, K (2010) Engaging Meaningfully with Government on Socio-
Economic Rights: A Focus on the Right to Housing 8.
259 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA
217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004).
260 Olivia Road. The remedy was also applied in Residents of Joe Slovo Community, Western
Cape v Thubelisha Homes, Minister for Housing and Minister of Local Government and
Housing, Western Cape (Centre on Housing Rights and Evictions and Community Law
Centre, University of the Western Cape as amicus curiae) (CCT 22/08) [2009] ZACC 16, 2009
(9) BCLR 847 (CC); 2010 (3) SA 454 (CC) (10 June 2009) and Schubart Park Residents
Association v City of Tshwane Metropolitan Municipality (CCT 23/12) [2012] ZACC 26; 2013
(1) SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012).
261 Olivia Road para 3.
262 Olivia Road para 21.
263 Olivia Road para 15.
264 Olivia Road para 16.
265 Bilchitz (2018) 59.
266 Bilchitz (2018) 59.
267 Liebenberg (2014) 162.
268 Ray (2016) 116.
269 Ray (2016) 116.
270 Ray (2016) 117.
271 Liebenberg (2014) 153.
272 Biegon (2011) 49.
273 Biegon (2011) 50.
274 Biegon (2011) 49.
275 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997
(3) SA 786 (CC) (5 June 1997) para 94.
276 Fose para 69.
277 See s 85 of the Constitution.
278 S 172(1)(a).
279 S 172(1)(b).
280 S v Bhulwana; S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388 (CC);
1995 (12) BCLR 1579 (29 November 1995) para 32.
281 Liebenberg (2008) 98.
282 Trengove, W (1999) Judicial remedies for violations of socioeconomic rights ESR Review
4:8–11.
283 Liebenberg (2008) 100.
284 Liebenberg (2010) 434.
285 See Sabel, CF and Simon, WH (2004) Destabilization rights: How public law litigation
succeeds Harvard Law Review 117:1015–1101 at 1085.
286 Biegon (2011) 49.
287 Act 19 of 1998.
288 City of JHB Metropolitan Municipality v Blue Moonlight Properties [2011] ZACC 33; 2012 (2)
SA 104 (CC); 2012 (2) BCLR 150 (CC) (1 December 2011).
289 Blue Moonlight.
290 Vally, S (1999) Violence in South African schools Current Issues in Comparative Education
2(1):1–9. See also Brown, K (2006) ‘New’ educational injustices in the ‘new’ South Africa: A
call for justice in the form of vertical equity Journal of Educational Administration
44(5):509–19.
291 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 at 71 (1948).
292 International Covenant on Economic, Social and Cultural Rights, (1967) 6 ILM 360 993.
Apart from the UDHR and the ICESCR, the right to education is also guaranteed in a
number of other international and regional instruments, such as Article 28(a) of the United
Nations Convention on the Rights of the Child; Article 17 of the African Charter of Human
and Peoples ‘Rights’ and Articles 11(2) and (3) of the African Charter on the Rights and
Welfare of the Child.
293 Committee on Economic, Social and Cultural Rights General Comment Number 13. The
Right to Education (Twenty First Session. 1999). UN Doc E/C.12.1999.10 (1999) para 1.
294 Head of Department: Mpumalanga Department of Education and Another v Hoërskool
Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177
(CC) (14 October 2009) para 46.
295 Act 47 of 1953
296 Spaull, N ‘Education in South Africa: A tale of two systems’ 31 August 2012 Politicsweb
available at https://www.politicsweb.co.za/news-and-analysis/education-in-sa-a-tale-of-
two-systems.
297 Chisholm, L ‘The state of South Africa’s schools’ in J Daniel, R Southall and J Lutchman
(eds) (2004) State of the Nation: South Africa 2004-2005 217. See also Spaull, N (2013)
Poverty and Privilege: Primary school inequality in South Africa Working Paper No 13/12,
Stellenbosch University, Department of Economics 437.
298 Zoch, A (2013) The effect of neighbourhoods and school quality on education and labour
market outcomes in South Africa Working Paper No 08/2017, Stellenbosch University,
Department of Economics 3.
299 The Regulations Relating to Minimum Uniform Norms and Standards for Public School
Infrastructure (2013) sets out the basic infrastructure items that all schools must receive as
 well as timeframes within which the state is required to deliver these. The minimum
infrastructure standards listed in these regulations includes water, electricity, sanitation,
security, classrooms, computers, libraries, laboratories and sport fields.
300 Draga, L ‘Infrastructure and Equipment’ in F Veriava and T Fish Hodgson (eds) (2017) Basic
Education Rights Handbook: Education Rights in South Africa.
301 Juma Musjid para 43.
302 Hassim, A (2014) The right to education: A textbook case 8–9.
303 MEC for Education: KwaZulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008
(1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) para 121.
304 S 26(1).
305 S 27(1).
306 S 29(1)(b).
307 Juma Musjid.
308 Juma Musjid para 37.
309 Woolman, S and Fleish, B The Constitution in the Classroom: Law and Education in South
Africa 1994-2008 (2009) 120.
310 Woolman and Fleish (2009) 121.
311 Woolman and Fleish (2009) 121.
312 Centre for Child Law and Others v Minister of Basic Education and Others (2840/2017)
[2019] ZAECGHC 126; [2020] 1 All SA 711 (ECG); 2020 (3) SA 141 (ECG) (12 December
2019).
313 Centre for Child Law para 90.
314 Centre for Child Law para 98.
315 Centre for Child Law para 99.
316 Gauteng Provincial Legislature: In re Gauteng School Education Bill of 1995 (CCT39/95)
[1996] ZACC 4; 1996 (3) SA 165 (CC); 1996 (4) BCLR (CC) (4 April 1996).
317 Gauteng Provincial Legislature para 9.
318 White Paper on Education and Training GN 196 in GG 16312 of 15 March 1995 ch 7, para
14.
319 World Declaration on Education for Al, accessed on 10 June 2020 available at
https://www.right-to-education.org/sites/right-to-education.org/files/resource-
attachments/UNESCO_World_Declaration_For_All_1990_En.pdf
320 Committee on Economic, Social and Cultural Rights (1999) General Comment Number 13.
The Right to Education (Twenty First Session. 1999). UN Doc E/C.12.1999.10 para 1.
321 CESCR General Comment No. 13 para 6(a).
322 CESCR General Comment No. 13 para 6(b).
323 CESCR General Comment No. 13 para 6(c).
324 CESCR General Comment No. 13 para 6(d).
325 [2015] ZASCA 198; [2016] 1 All SA 369 (SCA); 2016 (4) SA 63 (SCA). See also Section 27 v
Minister of Basic Education (24565/2012) [2012] ZAGPPHC 114; [2012] 3 All SA 579 (GNP);
2013 (2) BCLR 237 (GNP); 2013 (2) SA 40 (GNP) (17 May 2012) and Basic Education for All v
Minister of Basic Education (23949/14) [2014] ZAGPPHC 251; 2014 (4) SA 274 (GP); [2014] 3
All SA 56 (GP); 2014 (9) BCLR 1039 (GP) (5 May 2014).
326 Basic Education for All para 41.
327 Basic Education for All para 42.
328 Basic Education for All para 43.
329 Juma Musjid.
330 Centre for Child Law.
331 Freedom Stationery (Pty) Ltd v MEC for Education, Eastern Cape (59/2011) [2011]
ZAECELLC 1(16 March 2011).
332 Madzodzo and Others v Minister of Basic Education and Others (2144/2012) [2014]
ZAECMHC 5; [2014] 2 All SA 339 (ECM); 2014 (3) SA 441 (ECM) (20 February 2014).
333 Tripartite Steering Committee and Another v Minister of Basic Education and Others
(1830/2015) [2015] ZAECGHC 67; 2015 (5) SA 107 (ECG); [2015] 3 All SA 718 (ECG) (25 June
2015).
334 Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa
and Another 2011 (5) SA 87 (WCC); 2010] ZAWCHC 544; 18678/2007 (11 November 2010).
335 Giliomee, H (2004) The rise and possible demise of Afrikaans as a public language
Nationalism and Ethnic Politics 10(1):25.
336 South Africa Act (9 Edw. VII c9) 1909.
337 Afrikaans replaced Dutch as an official language in 1925 following the enactment of the
official Languages Act of the Union Act 8 of 1925.
338 Woolman, S and Fleish, B The Constitution in the Classroom: Law and Education in South
Africa 1994-2008 (2009) 46
339 Woolman and Fleish (2009) 46
340 Afriforum para 2.
341 Woolman and Fleish (2009) 48
342 Woolman and Fleish (2009) 48
343 Gelyke Kanse para 84.
344 Hoërskool Ermelo para 52.
345 Hoërskool Ermelo para 53.
346 Hoërskool Ermelo para 52.
347 S 5A(3) of the Schools Act.
348 Norms and Standards for Language Policy in Public Schools GN 1701 in GG 18546 of 19
December 1997.
349 Language in Education Policy GN 1701 in GG 18546 of 19 December 1997.
350 Stein N ‘Language in Schools’ in Veriava F and Fish Hodgson TF (eds) (2017) Basic
education rights handbook: Education Rights in South Africa 216.
351 Woolman, S and Fleisch, B (2014) The Problem of the ‘Other’ Language Constitutional
Court Review 5:142.
352 Afriforum para 48.
353 Afriforum para 50.
354 Afriforum para 52.
355 Afriforum para 53.
356 Afriforum para 62.
357 Gelyke Kanse para 28.
358 Gelyke Kanse para 30.
359 Gelyke Kanse para 31.
360 Gelyke Kanse para 38.
361 Gelyke Kanse para 41.
362 The Higher Education Act 101 of 1997.
363 S 8(1) of the Constitution read with S 29(2).
364 Language Policy for Higher Education GN R1485 in GG 24101 of 25 November 2002.
365 University of the Free State v Afriforum and Another (1027/2016) [2017] ZASCA 32; [2017] 2
All SA 808 (SCA); 2017 (4) SA 283 (SCA) (28 March 2017) para 26.
366 Afriforum paras 49–53.
367 This call is going hand in hand with a call for decolonisation of the curriculum and thus in
favour of decolonised education. This is a response to a complaint that in South African
universities, a particular epistemic hierarchy exists within which African knowledge and
resources are under-valued. See Morreira, S (2017) Steps Towards Decolonial Higher
Education in Southern Africa? Epistemic Disobedience in the Humanities Journal of Asian
and African Studies, 52(3):287–301.
368 Report of the Commission of Enquiry into Higher Education and Training to the President
of the Republic of South Africa 115.
369 Juma Musjid para 37.
370 LEXICO, https://www.lexico.com/definition/availability.
371 The Presidency (2017) Report of the Commission of Inquiry into Higher Education and
Training to the President of the Republic of South Africa 59.
372 LEXICO, https://www.lexico.com/definition/accessibility.
373 Report of the Commission of Inquiry 59.
374 Report of the Commission of Inquiry 59.
375 Grootboom para 35.
376 Grootboom para 37.
377 Grootboom para 36.
378 Grootboom para 36.
379 Grootboom para 36.
380 Grootboom para 41.
381 Grootboom para 44.
382 Grootboom para 46.
383 Grootboom para 45.
384 Grootboom para 45.
385 Grootboom para 45.
386 Grootboom para 46.
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Theses and dissertations

Bezuidenhout, K (2014) Compensation for excessive but otherwise lawful regulatory state action
(unpublished LLD dissertation) Stellenbosch University
Dhliwayo, P (2015) A constitutional analysis of access rights that limit landowners’ right to
exclude (unpublished LLD dissertation Stellenbosch University 2015)
Du Plessis, WJ (2009) Compensation for Expropriation under the Constitution (unpublished
LLD dissertation Stellenbosch University)
Kiewitz, L (2010) Relocation of a specified servitude of right of way (unpublished LLM thesis
Stellenbosch University)
Kunene, M (1995, 16 August) The Essence of being Human: An African Perspective, inaugural
lecture delivered at the University of Natal (as yet unpublished)
Siphuma, S (2013) The lessor’s tacit hypothec: A constitutional analysis (unpublished LLM
thesis Stellenbosch University)
Slade, BV (2012) The justification of expropriation for economic development (unpublished
LLD dissertation Stellenbosch University)
Swanepoel, J (2016) Constitutional property law in Central Eastern European jurisdictions: A
comparative analysis (unpublished LLD dissertation Stellenbosch University 2016)
Van der Sijde, E (2015) Reconsidering the relationship between property and regulation: A
systemic approach (unpublished LLD dissertation Stellenbosch University)

Papers
Barkan, J (2005) Emerging legislature or rubber stamp? The South African National Assembly
after ten years of democracy Working paper No 134, Centre for Social Science Research:
Democracy in Africa Research Unit, University of Cape Town at 9–11, available at
https://open.uct.ac.za/handle/11427/19368
Conradie, J (2011, April) The evolution of accounting standards in the public sector,
Unpublished Paper, available at http://www.accountancysa.org.za
Cowen, S (2013) Judicial selection in South Africa, Democratic Governance Rights Unit (DGRU)
Working Paper Series 15, available at
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Lewis, C (2008, 14 October) The troubled state of South Africa’s judiciary, Paper presented at the
South African Institute of Race Relations, available at
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oid=106544&sn=Detail
Ntlama, N (2009, 16–20 July) The Hlophe saga: the question for the institutional integrity of the
judiciary, Paper presented at the Law Teachers Conference in Pietermaritzburg, available at
http://wenku.baidu.com/view/6c6473f0fab069dc50220111.html
The South African National Assembly after ten years of democracy Working paper No 134,
Centre for Social Science Research: Democracy in Africa Research Unit, University of Cape
Town at 9–11, available at
http://www.cssr.uct.ac.za/sites/cssr.uct.ac.za/files/pubs/wp134.pdf
Spaull, N (2013) Poverty and Privilege: Primary school inequality in South Africa Working Paper
No 13/12, Stellenbosch University, Department of Economics
Zoch, A (2013) The effect of neighbourhoods and school quality on education and labour
market outcomes in South Africa Working Paper No 08/2017, Stellenbosch University,
Department of Economics

Reports
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Constitution
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http://www.pmg.org.za/minutes/20011018-sita-annual-report-19992000-briefing
Black First Land First (June 2018) Written Submission to Parliament on Review of the Land
Clause of the Constitution
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Section 25 of the Constitution
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Committee
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78/83 Part IV
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Constitution (November 2018)
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Parliament of South Africa, Cape Town, South Africa, 9 available at
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to the President of the Republic of South Africa
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Service in South Africa available at
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Presidential Advisory Committee on Land Reform and Agriculture Final Report May 2019
Report of the Commission of Enquiry into Higher Education and Training to the President of the
Republic of South Africa
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Systems (2017), accessed on 17 April 2020 at
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https://www.gov.za/sites/default/files/gcis_document/201409/panelassessparl.pdf
Report of the Presidential Review Commission on the Reform and Transformation of the Public
Service in South Africa, Pretoria (1998) para 1.3, available at
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Manpower Utilisation
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Associates: Constitutional Considerations Pretoria: South African Human Rights
Commission
South African Human Rights Commission (2010) Golden Key Awards Report on Access to
Information in South Africa (with the Open Democracy Advice Centre) available at
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1990

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Acquisition and Land Valuation in a Land Reform Context (2012)
Education and Training Unit (2016) How Government Works
Government of the Republic of South Africa (2011) National Development Plan
Language in Education Policy GN 1701 in GG 18546 of 19 December 1997
Language Policy for Higher Education GN R1485 in GG 24101 of 25 November 2002
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Committee on Economic, Social and Cultural Rights (2002) General Comment No15 The Right
to Water UN Doc E/C.12/2002/11
Committee on Economic, Social and Cultural Rights Human Rights Education and Public
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Economic, Social and Cultural Rights (1999) General Comment Number 13. The Right to
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Declaration of Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities Adopted by General Assembly Resolution 47/135 of 18 December 1992
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of the UN, Resolution 2200(xxi) of 16 December 1966
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United Nations Committee on Economic, Social and Cultural Rights An Evaluation of the
Obligations to Take Steps to the Maximum of Available Resources under an Optional
Protocol to the Covenant (2007) UN Doc E/C.12/2007/1
Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 at 71 (1948)

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Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) (CCT
48/17) [2017] ZACC 8; 2017 (3) SA 335 (CC); 2017 (5) BCLR 543 (CC) (17 March 2017) 512
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) (CCT
48/17) [2018] ZACC 36; 2018 (12) BCLR 1472 (CC) (27 September 2018) 512
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening)
(CCT48/17) [2017] ZACC 20; 2017 (9) BCLR 1089 (CC) (15 June 2017) 415
Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another 2009 (1) SA 470 (W)
501, 815, 816, 818–819
Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) 241,
518, 521, 524, 533, 552
Brown v Leyds NO (1897) 4 Off Rep 17 7
Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3; 1998 (2) SA 1143;
1998 (4) BCLR 415 (24 March 1998) 241, 242
Buckley v Valeo 424 U.S. 1 (1976) 719
C
Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry
and Another (410/09) [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July
2010) 415, 416, 417
Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4)
BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011) 258
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) (CCT 48/00)
[2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) (16 August 2001) 54, 234, 241,
410, 424, 425
Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and
Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996 (5) BCLR 608 (CC) (9 May
1996) 493, 668, 670
Cassim and Solomon v The State (1892) Cape Law Journal 9:58 6
Cavanaugh v Nebraska 178 F.Supp 3d 819 (2016) 625
CDA Boerdery (Edms) Bpk en Andere v Nelson Mandela Metropolitan Municipality (526/05) [2007] ZASCA 1;
2007 (4) SA 276 (SCA) (6 February 2007) 302
Centre for Child Law and Others v MEC for Education, Gauteng and Others 2008 (1) SA 223 (T) 225G–226A
415
Centre for Child Law and Others v Media 24 Limited and Others (CCT261/18) [2019] ZACC 46; 2020 (4) SA
319 (CC); 2020 (3) BCLR 245 (CC) (4 December 2019) 431, 444, 445, 487, 684, 685, 686
Centre for Child Law and Others v Minister of Basic Education and Others (2840/2017) [2019] ZAECGHC
126; [2020] 1 All SA 711 (ECG); 2020 (3) SA 141 (ECG) (12 December 2019) 826, 829
Centre for Child Law v Minister for Justice and Constitutional Development and Others (CCT98/08) [2009]
ZACC 18; 2009 (2) SACR 477 (CC); 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) (15 July 2009)
471
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 (CCT37/96)
[1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (CC) (4 December 1996) 25, 149, 150, 306, 309,
595
Certification of the Amended Text of the Constitution of the Western Cape, 1997 (CCT29/97) [1997] ZACC 15;
1997 (12) BCLR 1653; 1998 (1) SA 655 (18 November 1997) 240
Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4)
SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) 17, 19, 21, 22, 25, 59, 60, 61, 62, 101,
103, 108, 109, 146, 149, 211, 269, 276, 277, 345, 346, 370, 371, 401, 404, 436, 662, 787, 788,
793, 794, 841
Certification of the Constitution of the Western Cape, 1997 (CCT6/97) [1997] ZACC 8; 1997 (4) SA 795
(CC); 1997 (9) BCLR 1167 (CC)(2 September 1997) 240
Certification of the Constitution of the Western Cape, 1997 (CCT29/97) [1997] ZACC 15; 1998 (1) SA 655
(CC); 1997 (12) BCLR 1653 (CC) (18 November 1997) 314
Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996] ZACC 17; 1996 (11) BCLR 1419; 1996
(4) SA 1098 (6 September 1996) 240, 314
Chassagnou v France (1999) 29 EHRR 615 132, 600, 603
Chetty v Naidoo 1974 (3) SA 13 (A) 20; Gien v Gien 1979 (2) SA 1113 (T) 1120 743
Chief Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409
(CC); 1999 (12) BCLR 1420 (16 November 1999) 82, 459
Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757 (CC);
2000 (10) BCLR 1051 (18 August 2000) 430, 432, 433, 463, 464, 466, 467, 614, 615, 620, 629,
630, 631, 639, 643, 645
Christian Education South Africa v Minister of Education (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998
(12) BCLR 1449 (14 October 1998) 241, 456
Christian Lawyers Association of SA v Minister of Health 1998 (11) BCLR 1434 (T), 1998 (4) SA 1113 (T)
(Christian Lawyers I) 403, 586
Christian Lawyers Association v Minister of Health 2005 (1) SA 509 (T) (Christian Lawyers II) 586
The Citizen 1978 (Pty) Ltd and Others v McBride (CCT 23/10) [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011
(8) BCLR 816 (CC) (8 April 2011) 462
City Council of Pretoria v Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC)
(17 February 1998) 521, 524, 530, 546, 549, 550, 555, 562
City of Cape Town and Others v Robertson and Others (CCT 19/04) [2004] ZACC 21; 2005 (2) SA 323 (CC)
(29 November 2004) 302, 336
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC)
[2011] ZACC 33; 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC) (1 December 2011) 504, 796, 814,
821
City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (CCT89/09)
[2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) (18 June 2010) 338, 339, 340
City of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19; 2016 (6) SA
279 (CC); 2016 (9) BCLR 1133 (CC) (21 July 2016) 330, 331, 332, 333
City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others (CCT184/14) [2015] ZACC 29;
2015 (6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (23 September 2015) 755
Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer Port Elizabeth
Prison and Others (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (4) SA 631 (CC); 1995 (10) BCLR
1382 (CC) (22 September 1995) 431, 466, 492, 498
Collins v Minister of the Interior 1957 (1) SA 552 (A) 11
Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385 (SCC) 448
Constitutionality of the Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC 10; 2002 (1) SA 447
(CC); 2001 (11) BCLR 1126 (5 October 2001) 63, 176
Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for the
Advancement of the South African Constitution v President of the Republic of South Africa and Others
(Corruption Watch) (62470/2015) [2017] ZAGPPHC 743; [2018] 1 All SA 471 (GP); 2018 (1) SACR
317 (GP) (8 December 2017) 193, 198, 213, 277
Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v
Corruption Watch NPC and Others (Corruption Watch II) (CCT 333/17; CCT 13/18); [2018] ZACC 23;
2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) (13 August 2018) 194, 198, 274, 279, 280, 496

D
Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735
(CC) (11 March 2004) 225, 421, 422
Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949
(CC) (11 May 2017) 563, 569, 738, 747, 748, 749, 750, 779, 798, 799, 800
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs
and Others; Thomas and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000
(3) SA 936; 2000 (8) BCLR 837 (7 June 2000) 83, 403, 449, 481, 482, 485, 497, 514, 515, 565,
566, 569, 597
De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another
(CCT223/14) [2015] ZACC 35; 2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC) (24 November 2015) 528
De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779
(28 May 1998) (CC) 59, 103, 248, 570, 575, 576, 577, 583
De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C) 89, 119, 120
Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) 164
Democratic Alliance v Minister of International Relations and Co-operation and Others (Council for the
Advancement of the South African Constitution as Intervening Party) (83145/2016); [2017] ZAGPPHC
53; [2017] 2 All SA 123 (GP); 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623
(GP) (22 February 2017) 194, 484
Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR
1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) 80, 81, 198, 206, 207, 208, 274, 276
Democratic Alliance v President of South Africa and Others (18392/13) [2014] ZAWCHC 31; [2014] 2 All SA
569 (WCC); 2014 (4) SA 402 (WCC); 2014 (7) BCLR 800 (WCC) (13 March 2014) 321
Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public
Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 132; [2019] 3 All SA 127 (GP); 2019 (7)
BCLR 882 (GP) (20 May 2019) 293, 298, 299
Democratic Alliance v Speaker of the National Assembly and Others 2016 (3) SA 487 (CC) 120, 121, 122,
123, 488, 489
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others (CCT5/03) [2003] ZACC
19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October 2003) 243, 440, 441, 464, 465,
673, 674
De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others (CCT 150/14)
[2015] ZACC 21; 2015 (2) SACR 217 (CC); 2015 (9) BCLR 1026 (CC) (26 June 2015) 575
Dikoko v Mokhatla (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August
2006) 117, 427
Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development (CCT 36/08)
[2009] ZACC 8; 2009 (4) SA 222 (CC); 2009 (7) BCLR 637 (CC) (1 April 2009) 431, 432
Director of Public Prosecutions Cape of Good Hope v Bathgate 2000 (2) BCLR 151 (C) 756
Dladla and Another v City of Johannesburg and Others (CCT124/16) [2017] ZACC 42; 2018 (2) SA 327 (CC);
2018 (2) BCLR 119 (CC) (1 December 2017) 446, 447, 565, 566
Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11;
2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006) 85, 88, 93, 94, 101, 102, 103,
115, 116, 124, 125, 126, 127, 145, 146, 147, 150, 162, 163, 168, 240, 286, 479, 498, 503
Dormehl v Minister of Justice and Others (CCT10/00) [2000] ZACC 4; 2000 (2) SA 825; 2000 (5) BCLR 471
(CC) (14 April 2000) 241
Dube and Others v Zikalala and Others (7904/2016P) [2017] ZAKZPHC 36; [2017] 4 All SA 365 (KZP) (12
September 2017) 110, 716
Du Plessis; Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753
(CC); 1998 (10) BCLR 1207 (CC) (27 August 1998) 424
Du Plessis and Others v De Klerk and Another (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5)
BCLR 658 (CC) (15 May 1996) 414, 417
Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC
20; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC) (10 September 2002) 524
Du Toit v Minister of Transport (CCT22/04) [2005] ZACC 9; 2006 (1) SA 297 (CC); 2005 (11) BCLR 1053
(CC) (8 September 2005) 767, 768, 769

E
Eaton v Brant County Board of Education [1997] 1 SCR 241 560
Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CCT76/17) [2017]
ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December 2017) 227, 288
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of
the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618
(CC); 2016 (3) SA 580 (CC) (31 March 2016) 106, 107, 183, 184, 240, 292, 294, 295, 296
Economic Freedom Fighters v Speaker of the National Assembly and Others v Speaker of the National
Assembly and Others 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) 66, 113, 156, 157, 185
Electoral Commission v Mhlope and Others (CCT55/16) [2016] ZACC 15; 2016 (5) SA 1 (CC); 2016 (8)
BCLR 987 (CC) (14 June 2016) 724, 725
Engelbrecht v Road Accident Fund (CCT57/06) [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457
(CC) (6 March 2007) 451
Engel v Vitale 370 US 421 (1962) 431 620
Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others (CCT 94/13) [2014] ZACC 3; 2014 (3) SA
106 (CC); 2014 (4) BCLR 373 (CC) (27 February 2014) 485
Everson v Board of Education of the Township of Ewing 330 US 1 (1947) 618
Executive Council of the Province of the Western Cape v Minister for Provincial Aff airs and Constitutional
Development and Another, Executive Council of KwaZulu-Natal v President of the Republic of South Africa
and Others (CCT15/99, CCT18/99) [1999] ZACC 13; 2000 (1) SA 661 (CC); 1999 (12) BCLR 1360 (15
October 1999) 63, 176, 177, 178, 204, 337
Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and
Others (CCT27/95) [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC) (22 September
1995) 33, 63, 64, 168, 175, 176, 204, 241, 325, 495, 497, 498
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) 149, 305,
370
Ex parte Minister of Safety and Security: In re S v Walters (CCT28/01) [2002] ZACC 6; 2002 (4) SA 613 (CC);
2002 (7) BCLR 663 (CC) (21 May 2002) 438, 443, 462
Ex parte Minister of Safety and Security: In re S v Williams (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632
(CC); 1995 (7) BCLR 861 (CC) (9 June 1995) 431, 441, 461, 562, 579, 581
Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill (CCT12/99) [1999]
ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999) 170, 174, 175, 321, 322, 323, 338

F
Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the Executive Council for
Education, Gauteng and Another [2016] ZACC 14; 2016 (4) SA 546 (CC); 2016 (8) BCLR 1050 (CC) (20
May 2016) 326
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others
(CCT7/98) [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (14 October 1998) 79, 80,
199, 206, 302, 347
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13;
1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) 407, 408, 420, 482, 483, 563, 572, 573,
574
First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and
Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance (CCT19/01) [2002] ZACC 5;
 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 (16 May 2002) 437, 442, 443, 746, 750, 751, 752, 753,
756, 759, 760, 761, 762, 763, 764, 779
FNM v The Refugee Appeal Board and Others (71738/2016) [2018] ZAGPPHC 532; [2018] 4 All SA 228
(GP); 2019 (1) SA 468 (GP) (12 July 2018) 403
Forum for Black Journalists v Katy Katopodis Case ref no.: GP/2008/0161/L BIOS 611, 612
Fose v Minister of Safety and Security (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995
(12) BCLR 1579 (CC) (29 November 1995) 478, 485
Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR
851 (CC) (5 June 1997) 503, 819
Fraser v Children’s Court Pretoria North and Others (CCT31/96) [1997] ZACC 1; 1997 (2) SA 218 (CC); 1996
(8) BCLR 1085 (CC) (5 February 1997) 497, 498
Fraser v Naude and Another (Fraser II) (CCT14/98) [1998] ZACC 13; 1999 (1) SA 1 (CC); 1998 (11) BCLR
1357 (CC) (23 September 1998) 481, 485
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others
(CCT320/17) [2019] ZACC 34; 2020 (1) SA 1 (CC); 2019 (11) BCLR 1321 (CC) (18 September 2019)
514, 566, 567, 569, 578, 579
Freedom Stationery (Pty) Ltd v MEC for Education, Eastern Cape (59/2011) [2011] ZAECELLC 1 (16 March
2011) 829
Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others (2011 (3) SA 549 (SCA);
[2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March 2011) 265

G
Gaum and Others v Van Rensburg and Others (40819/17) [2019] ZAGPPHC 52; [2019] 2 All SA 722 (GP) (8
March 2019) 626, 627, 628
Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 (CCT39/95) [1996] ZACC 4;
1996 (3) SA 165 (CC); 1996 (4) BCLR 537 (CC) (4 April 1996) 653, 827
Gauteng Provincial Legislature v Killian and 29 Others 2001 (2) SA 68 (SCA) 142
Geldenhuys v Minister of Safety and Security and Another 2002 (4) SA 719 (C) 728G–I 54
Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others (CCT
311/17) [2019] ZACC 38; 2020 (1) SA 368 (CC); 2019 (12) BCLR 1479 (CC) (10 October 2019) 514,
789, 831, 834, 835
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others (CCT 25/12) [2012] ZACC 28; 2013 (3) BCLR
251 (CC) (29 November 2012) para 23 408, 409
Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) 101
Glenister v President of the Republic of South Africa and Others (Glenister I) 2009 (1) SA 287 (CC) 101, 102
Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA
347 (CC); 2011 (7) BCLR 651 (CC) (17 March 2011) 795, 796
Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC)
(23 November 2006) 524
Governing Body of the Rivonia Primary School and Another v MEC for Education: Gauteng Province and Others
(11/08340) [2011] ZAGPJHC 182; [2012] 1 All SA 576 (GSJ); 2012 (5) BCLR 537 (GSJ) (7 December
2011) 655
Governing Body of the Rivonia Primary School and Another v MEC for Education: Gauteng Province and Others
(161/12) [2012] ZASCA 194; 2013 (1) SA 632 (SCA); [2013] 1 All SA 633 (SCA) (30 November 2012)
655
Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC
19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (4 October 2000) 525, 526, 562, 564, 746, 789,
790, 792, 797, 798, 800, 802, 803, 805–806, 807, 808, 810, 811, 812, 813, 820, 838, 839, 840
Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995 (2) SA 221 (T) 676
Growthpoint Properties Ltd v South Africa Commercial Catering and Allied Workers Union (SACCAWU) and
Others (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537 (KZD); (2010)
31 ILJ 2539 (KZD) (3 September 2010) 703, 704
Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23;
2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC) (8 December 2008) 427, 637, 650
Gundwana v Steko Development CC and Others (CCT 44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011
(8) BCLR 792 (CC) (11 April 2011) 802

H
Hamata and Another v Chairman, Peninsula Technikon Internal Disciplinary Committee and Others 2000 (4)
SA 621 (C) 671
Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489
(CC) (7 October 1997) 521, 524, 525, 531, 545, 546, 547, 551, 552, 558, 751
Harris and Others v Minister of the Interior and Another 1952 (2) SA 428 (A) 11, 45
Harvey v Umhlatuze Municipality and Others (4387/08) [2010] ZAKZPHC 86; 2011 (1) SA 601 (KZP); 2011
(4) BCLR 379 (KZP) (3 December 2010) 766
Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head
of Department, Department of Education, Free State Province v Harmony High School and Another (CCT
103/12) [2013] ZACC 25; 2014 (2) SA 228 (CC); 2013 (9) BCLR 989 (CC) (10 July 2013) 480
Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another
(CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (14 October 2009) 652,
653, 657, 789, 823, 831, 832, 834
Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8; 2018 (4) SA 1 (CC);
2018 (7) BCLR 763 (CC) (24 April 2018) 252, 253, 254, 493
Herbert N.O. and Others v Senqu Municipality and Others (CCT 308/18) [2019] ZACC 31; 2019 (6) SA 231
(CC); 2019 (11) BCLR 1343 (CC) (22 August 2019) 497, 531
Hoërskool Ermelo (CC) and Minister of Education (Western Cape) v Mikro Primary School Governing Body
(140/2005) [2005] ZASCA 66; [2005] 3 All SA 436 (SCA) (27 June 2005) 655, 656
Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1 (CC); 2000 (11) BCLR 1211
(CC); (28 September 2000) 521, 524, 548, 552, 606
Hofmeyr v Minister of Justice and Another 1992 (3) SA 108 (C) 191
Holomisa v Argus Newspaper 1996 (2) SA 588 (W) 855–56 677
Hotz and Others v University of Cape Town (CCT280/16) [2017] ZACC 10; 2018 (1) SA 369 (CC); 2017 (7)
BCLR 815 (CC) (12 April 2017) 604
Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723 (SCA); 2017
(2) SA 485 (SCA) (20 October 2016) 604
Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston 515 US 557 (1995) 603
I
Independent Electoral Commission v Langeberg Municipality (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925
(CC); 2001 (9) BCLR 883 (CC) (7 June 2001) 133, 135, 288, 289, 309, 310, 407
Independent Newspapers (Pty) Ltd v Minister of Intelligence Services: In re Masetlha v President of the
Republic of South Africa and Another (CCT 38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR
771 (CC) (22 May 2008) 475, 687, 688
Ingonyama Trust v eThekwini Municipality (149/2011) [2012] ZASCA 104; 2013 (1) SA 564 (SCA) (1 June
2012) 351
In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, In re: Payment of Salaries.
Allowances and Other Privileges to the Ingonyama Bill of 1995 (CCT1/96, CCT6/96) [1996] ZACC 15;
1996 (7) BCLR 903; 1996 (4) SA 653 (5 July 1996) 170, 325
Institute for Democracy in South Africa and Others v African National Congress and Others (9828/03) [2005]
ZAWCHC 30; 2005 (5) SA 39 (C); [2005] 3 All SA 45 (C) (20 April 2005) 607
International Trade Administration Commission v SCAW South Africa (Pty) Ltd (CCT 59/09) [2010] ZACC 6;
2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March 2010) 227
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000]
ZACC 12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC) (25 August 2000) 27, 233, 421, 422,
486, 588, 589
Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01)) [2002] ZACC 3;
2002 (4) SA 294 (CC) 2002 (5) BCLR 433 (11 April 2002) 243, 401, 456, 464, 465, 466, 494, 666,
667, 671, 672, 690
Ismail v Ismail 1983 (1) SA 1006 (A) 1026 616, 636
J
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA
140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004) 457, 801, 821
J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003
(5) SA 621 (CC); 2003 (5) BCLR 463 (CC) (28 March 2003) 485, 497–498, 524
Janse van Rensburg and Another v Minister of Trade and Industry and Another (CCT13/99) [2000] ZACC 18;
2001 (1) SA 29; 2000 (11) BCLR 1235 (CC) (29 September 2000) 83
Janse van Rensburg NO v Minister van Handel en Nywerheid 1999 (2) BCLR 204 (T) 221 756
Johannesburg Municipal Council v Rand Townships Registrar and Others 1910 TS 1314 1319 743
Johncom Media Investments Ltd v M (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751
(CC) (17 March 2009) 431, 457, 462, 686, 687
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) (CCT15/98) [1998] ZACC 18;
1999 (2) SA 1 (CC); 1999 (2) BCLR 139 (CC) (27 November 1998) 532
Jordaan and Another v City of Tshwane Metropolitan Municipality and Others; New Ventures Consulting and
Services (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Another; Livanos and Others
v Ekurhuleni Metropolitan Municipality and Another; Oak Plant Rentals (Pty) Ltd and Others v Ekurhuleni
Metropolitan Municipality (74195/2013; 13039/2014; 13040/2014; 19552/2015; 23826/2014)
[2016] ZAGPPHC 941; [2017] 1 All SA 585 (GP); 2017 (2) SA 295 (GP) (7 November 2016) 760, 761,
762
Jordaan and Others v City of Tshwane Metropolitan Municipality and Others; City of Tshwane Metropolitan
Municipality v New Ventures Consulting and Services (Pty) Limited and Others; Ekurhuleni Metropolitan
Municipality v Livanos and Others (CCT283/16, CCT293/16, CCT294/16, CCT283/16) [2017] ZACC 31;
2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC) (29 August 2017) 420, 425
Joseph and Others v City of Johannesburg and Others (CCT 43/09) [2009] ZACC 30; 2010 (4) SA 55 (CC);
2010 (3) BCLR 212 (CC) (9 October 2009) 329, 330, 789
JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others (CCT49/95) [1996] ZACC 23;
1997 (3) SA 514 (CC); 1996 (12) BCLR 1599 (CC) (21 November 1996) 506
Judicial Service Commission and Another v Cape Bar Council and Another 2012 (11) BCLR 1239 (SCA);2013
(1) SA 170 (SCA) [2013] 1 All SA 40 (SCA) (14 September 2012) 67, 258
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 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5)
SA 388 (CC); 2011 (10) BCLR 1017 (CC) (29 July 2011) 63, 64, 67, 177, 178, 179, 204, 205, 229,
261, 262, 263

K
Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157
(CC); 2016 (2) SA 338 (CC) (30 November 2015) 724, 725
Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social
Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569
(CC) (4 March 2004) 125, 403, 489, 526, 527, 552, 553, 789, 810, 816, 821
Khumalo and Governing Body of the Juma Musjid Primary School & Others v Essay NO and Others (CCT
29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011) 418, 419, 670, 675, 676, 798, 799,
824, 825, 829, 838
Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771
(CC) (14 June 2002) 412, 413, 414, 515, 569, 701
Komape and Others v Minister of Basic Education (1416/2015) [2018] ZALMPPHC 18 (23 April 2018) 509
Komape v Minister of Basic Education (754/2018 and 1051/2018) [2019] ZASCA 192 (18 December 2019)
509
Kruger v President of the Republic of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA
417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008) 206, 407, 408
K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835
(CC); [2005] 8 BLLR 749 (CC) (13 June 2005) 234, 424, 426

L
Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and
Others 2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC) 94, 124
Langa and Others v Hlophe (697/08) [2009] ZASCA 36; [2009] 3 All SA 417 (SCA); 2009 (8) BCLR 823
(SCA) (31 March 2009) 507
Larbi-Odam v MEC for Education (North West Province) (CCT2/97) [1997] ZACC 16; 1998 (1) SA 745 (CC);
1997 (12) BCLR 1655 (CC) (26 November 1997) 456, 524, 548
Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International
(CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005) 462, 672
Law Society of South Africa and Others v Minister for Transport and Another (CCT 38/10) [2010] ZACC 25;
2011(1) SA 400 (CC); 2011 (2) BCLR 150 (CC) (25 November 2010) 577, 578
Law v Canada (Minister of Employment and Immigration) 1 SCR 497 (1999) 562–563
Lawyers for Human Rights and Others v Minister of Home Affairs and Others (CCT 18/03) [2004] ZACC 12;
2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) 403, 407–408, 457
Le Sueur and Another v eThekwini Municipality and Others 2013 JDR 0178 (KZP) 343, 344
Liberal Party v The Electoral Commission and Others (CCT 10/04) [2004] ZACC 1; 2004 (8) BCLR 810 (CC)
(5 April 2004) 718
Lingwood and Another v The Unlawful Occupiers of R/E of Erf 9 Highlands 2008 (3) BCLR 325 (W) 501
Lochner v New York (CCT23/95) [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) (27 March
1996) 574
Lourens v Speaker of the National Assembly (20827/2014) [2016] ZASCA 11; [2016] 2 All SA 340 (SCA)
(10 March 2016) 661
Lovelace v Canada CCPR/C/13/D/24/1977 646, 648
Luitingh v Minister of Defence (CCT29/95) [1996] ZACC 5; 1996 (4) BCLR 581; 1996 (2) SA 909 (4 April
1996) 241
Lyng v Northwest Indian Cemetery 485 US 439 623
M
Maccsand (Pty) Ltd v City of Cape Town and Others (CCT103/11) (CC) [2012] ZACC 7; 2012 (4) SA 181
(CC); 2012 (7) BCLR 690 (CC) (12 April 2012) 338
Mackey v US 401 US 667 (1971) 691 495
Madzodzo and Others v Minister of Basic Education and Others (2144/2012) [2014] ZAECMHC 5; [2014] 2
All SA 339 (ECM); 2014 (3) SA 441 (ECM) (20 February 2014) 829
Magajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (5) SA 250 (CC);
2006 (10) BCLR 1133 (CC) (8 June 2006) 457
Magidimisi v Premier of the Eastern Cape and Others (2180/04, ECJ031/06) [2006] ZAECHC 20 (25 April
2006) 214
Malachi v Cape Dance Academy International (Pty) Ltd (CCT 05/10) [2010] ZACC 13; 2010 (6) SA 1 (CC);
2010 (11) BCLR 1116 (CC) (24 August 2010) 570, 575
Malema and Another v Chairman of the National Council of Provinces and Another 2015 (4) SA 145 (WCC)
120
Mandla and Another v Dowell Lee and Another [1983] 1 All ER 1062 (HL) 644
Mansingh v General Council of the Bar and Others (CCT 43/13) [2013] ZACC 40; 2014 (2) SA 26 (CC); 2014
(1) BCLR 85 (CC) (28 November 2013) 190
Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC 20; 2008 (1) SA
566 (CC); 2008 (1) BCLR 1 (3 October 2007) 80, 201, 203, 206, 211, 212, 562
Mashavha v President of the Republic of South Africa and Others 2005 (2) SA 476 (CC); 2004 (12) BCLR
1243 (CC) 326, 327
Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007] ZACC 9; 2007
(5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007) 234, 243
Masuku and Another v South African Human Rights Commission obo South African Jewish Board of Deputies
(1062/2017) [2018] ZASCA 180; 2019 (2) SA 194 (SCA); [2019] 1 All SA 608 (SCA) (4 December
2018) 692
Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (1) BCLR 47
(CC) 124
Matatiele Municipality and Others v President of the Republic of South Africa and Others (CCT73/05) [2006]
ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC) (27 February 2006) 334
Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR
918 (CC) (30 May 2013) 427, 637, 638
May v Udwin 1981 (1) SA 1 (A) 266
Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010 4 SA 1 (CC);
2010 (3) BCLR 239 (CC) (8 October 2009) 788, 789, 790, 792, 793, 794, 797, 798, 803, 809, 812,
814
Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC) 102, 113, 116, 158, 159, 187, 189
McBride v Minister of Police and Another (CCT255/15) [2016] ZACC 30; 2016 (2) SACR 585 (CC); 2016 (11)
BCLR 1398 (CC) (6 September 2016) 494
MEC: Department of Agriculture, Conservation and Environment v HTF Developers (Pty) Ltd (CCT 32/07)
[2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December 2007) 473
MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC);
2008 (2) BCLR 99 (CC) (5 October 2007) 234, 404, 467, 472, 528, 558, 559, 560, 562, 595, 596,
597, 629, 644, 825
MEC for the Department of Welfare v Kate (580/04) [2006] ZASCA 49; 2006 (4) SA 478 (SCA); [2006] 2 All
SA 455 (SCA) (30 March 2006) 504, 505
Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (CCT 41/07)
[2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June 2008) 87, 124, 152
Mhlanganisweni Community v Minister of Rural Development and Land Reform and Others (MalaMala) (LCC
156/2009) [2012] ZALCC 7 (19 April 2012) 768, 769
Mhlekwa & Feni v Head of the Western Tembuland Regional Authority 2000 (9) BCLR 979 (Tk) 272
Midi Television (Pty) Limited t/a e-tv v Director of Public Prosecutions (100/06) [2007] ZASCA 56; [2007] 3
All SA 318 (SCA); 2007 (9) BCLR 958 (SCA) (18 May 2007) 612, 677
Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province and Others
[2008] 2 All SA 145; 2008 (2) SA 481 (CC); 2008 (5) BCLR 508 (CC); 2008 (2) SA 481 (SCA) 356,
357
Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009] ZACC 25; 2010
(1) SACR 325 (CC); 2010 (2) BCLR 140 (CC); 2010 (4) SA 82 (CC) (30 September 2009) 206
Minister of Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals (CCT
122/15) [2015] ZACC 27; 2015 (11) BCLR 1387 (CC) (28 August 2015) 497
Minister of Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals
(CCT186/16) [2016] ZACC 26; 2016 (11) BCLR 1419 (CC) (25 August 2016) 497
Minister of Basic Education v Basic Education for All [2015] ZASCA 198; [2016] 1 All SA 369 (SCA); 2016
(4) SA 63 (SCA) 828
Minister of Constitutional Development and Another v South African Restructuring and Insolvency Practitioners
Association and Others (CCT13/17) [2018] ZACC 20; 2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC)
(5 July 2018) 533, 536, 539, 541, 543, 544, 561
Minister of Education (Western Cape) v Mikro Primary School Governing Body (140/2005) [2005] ZASCA 66;
[2005] 3 All SA 436 (SCA) (27 June 2005) 655, 656, 658
Minister of Finance and Others v Van Heerden (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004
(11) BCLR 1125 (CC); (29 July 2004) 29, 520, 521, 527, 529, 533, 534, 536, 537, 538, 539, 540,
541, 542, 543, 552, 561
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC
14; 2006 (2) SA 311 (CC); 2006 (8) BCLR 872 (CC) (30 September 2005) 554
Minister of Health and Others v Treatment Action Campaign and Others (CCT 08/02) [2002] ZACC 15; 2002
(5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (5 July 2002) 69, 102, 564, 790
Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524
(CC); 2006 (3) BCLR 355 (CC) (1 December 2005) 498, 499, 500, 524, 549, 568, 614, 616, 617,
618, 636, 637
Minister of Home Affairs and Another v Public Protector of the Republic of South Africa (308/2017) [2018]
ZASCA 15; [2018] 2 All SA 311 (SCA); 2018 (3) SA 380 (SCA) (15 March 2018) 292, 298
Minister of Home Affairs and Others v Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All
SA 21 (SCA) (28 November 2003) 403
Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of Home Affairs and
Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003 (5) SA 281 (CC) (27 June 2003) 407,
408
Minister of Home Affairs v Liebenberg (CCT22/01) [2001] ZACC 3; 2001 (11) BCLR 1168; 2002 (1) SA 33
(CC) (8 October 2001) 209
Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO)
and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004) 90, 136, 137, 468, 469, 712, 730, 731, 732
Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening);
National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and
Others v Acton (CCT108/17) [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (18
September 2018) 431, 457, 459, 490, 569, 590, 591, 624
Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC 7; 1997 (6) BCLR 677; 1997 (3) SA 772 (5
June 1997) 241
Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC 7; 1997 (3) SA 772 (CC); 1997 (6) BCLR
677 (CC) (5 June 1997) 499
Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat
Council and Others; Minister of Local Government, Environmental Affairs and Development Planning,
Western Cape v City of Cape Town and Others (117/13) [2014] ZACC 9; 2014 (4) SA 437 (CC); 2014 (5)
BCLR 591 (CC) (4 April 2014) 340
Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v
Lagoonbay Lifestyle Estate (Pty) Ltd and Others (CCT 41/13) [2013] ZACC 39; 2014 (1) SA 521 (CC);
2014 (2) BCLR 182 (CC) (20 November 2013) 340
Minister of Minerals and Energy v Agri South Africa (458/2011) [2012] ZASCA 93; 2012 (5) SA 1 (SCA);
[2012] 3 All SA 266 (SCA); 2012 (9) BCLR 958 (SCA) (31 May 2012) 766
Minister of Safety and Security v South African Hunters and Game Conservation Association (CCT177/17)
[2018] ZACC 14; 2018 (2) SACR 164 (CC); 2018 (10) BCLR 1268 (CC) (7 June 2018) 545
Minister of Social Development and Others v Phoenix Cash & Carry Pmb CC (189/06, 244/06) [2007] ZASCA
26; [2007] 3 All SA 115 (SCA); 2007 (9) BCLR 982 (SCA) (27 March 2007) 358
Mistry v Interim National Medical and Dental Council (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127 (CC);
1998 (7) BCLR 880 (CC) (29 May 1998) 439
Mkhize v Umvoti Municipality and Others (628/2010) [2011] ZASCA 184; 2012 (1) SA 1 (SCA); [2011] 4 All
SA 460 (SCA); 2012 (6) BCLR 635 (SCA) (30 September 2011) 487
Mkontwana v Nelson Mandela Metropolitan Municipality and Another and Others; Transfer Rights Action
Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (Kwazulu-Natal Law
Society and Msunduzi Municipality as amici curiae) (CCT 57/03) [2004] ZACC 9; 2005 (1) SA 530 (CC);
2005 (2) BCLR 150 (CC) (6 October 2004) 27, 754, 755, 756, 757, 759
Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1)
SACR 429 (CC) (19 November 2018) 707, 708
Mnquma Local Municipality and Another v Premier of the Eastern Cape and Others [2012] JOL 28311 (ECB)
345
Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development
Intervening (Women’s Legal Centre as Amicus Curiae) (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491
(CC); 2001 (8) BCLR 765 (CC) (4 July 2001) 431, 468
Moodley v Kenmont School and Others (CCT281/18) [2019] ZACC 37; 2020 (1) SA 410 (CC); 2020 (1)
BCLR 74 (CC) (9 October 2019) 457
Moseneke and Others v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001
(2) SA 18 (6 December 2000) 241, 524
Moutse Demarcation Forum v President of the Republic of South Africa 2011 (11) BCLR 1158 (CC) 124
Moyo and Another v Minister of Police and Others; Sonti and Another v Minister of Police and Others
(CCT174/18; CCT178/18) [2019] ZACC 40; 2020 (1) BCLR 91 (CC); 2020 (1) SACR 373 (CC) (22
October 2019) 487
Mphele v Government of the Republic of South Africa 1996 (7) BCLR 921 (CK) 954E 212
Msiza v Director-General, Department of Rural Development and Land Reform 2016 (5) SA 513 (LCC) 766,
767, 768, 769, 770
Mthembi-Mahanyele v Mail & Guardian Ltd and Another (054/2003) [2004] ZASCA 67; [2004] 3 All SA 511
(SCA) (2 August 2004) 671
Mukaddam v Pioneer Foods (Pty) Ltd and Others (CCT 131/12) [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013
(10) BCLR 1135 (CC) (27 June 2013) 409
Mulowayi and Others v Minister of Home Affairs and Another (CCT249/18) [2019] ZACC 1; 2019 (4) BCLR
496 (CC) (29 January 2019) 497
Multani v Commission Scolaire Marguerite – Bourgeoys [2006] 1 SCR 256 632
Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In Re; S v Pistorius,
In Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others
(10193/2014) [2014] ZAGPPHC 37; [2014] 2 All SA 446 (GP); 2014 (1) SACR 589 (GP) (25 February
2014) 681, 682, 683
My Vote Counts NPC v Minister of Justice and Correctional Services and Others (CCT249/17) [2018] ZACC
17; 2018 (5) SA 380 (CC); 2018 (8) BCLR 803 (CC) (21 June 2018) 88, 607–608, 609, 719, 720, 721
My Vote Counts NPC v Speaker of the National Assembly and Others (CCT121/14) [2015] ZACC 31 (30
September 2015) 528

N
NAACP v Alabama 357 U.S. 449 (1958) 602
Nandutu and Others v Minister of Home Affairs and Others (CCT114/18) [2019] ZACC 24; 2019 (5) SA 325
(CC); 2019 (8) BCLR 938 (CC) (28 June 2019) 446, 487
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98)
[1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (9 October 1998) 29, 420, 457, 462,
464, 484, 486, 487, 488, 494, 495, 496, 497, 514, 520, 524, 529, 545, 552, 553, 567, 568, 583,
587, 589, 590, 597, 614
National Director of Public Prosecutions and Others v Freedom Under Law (67/2014) [2014] ZASCA 58;
2014 (4) SA 298 (SCA); 2014 (2) SACR 107 (SCA); [2014] 4 All SA 147 (SCA) (17 April 2014) 274
National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02) [2003] ZACC 4; 2003 (4) SA
1 (CC); 2003 (5) BCLR 476 (CC) (3 April 2003) 506
National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009
(1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) (12 January 2009) 274,
275
National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others (CCT2/02)
[2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002) 234, 473
National Gambling Board v Premier of KwaZulu-Natal and Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR
156; 2002 (2) SA 715 (21 December 2001) 241, 244
National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development
and Another (29677/2013) [2014] ZAGPPHC 763 (8 October 2014) 404
Ndlwana v Hofmeyr NO and Others 1937 AD 229 11
Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others (EQ02/2018) [2019] ZAEQC 2;
[2019] 4 All SA 237 (EqC); 2019 (10) BCLR 1245 (EqC); 2019 (6) SA 327 (GJ) (21 August 2019) 671,
696, 697
Nel v Le Roux NO (CCT30/95) [1996] ZACC 6; 1996 (3) SA 562 (CC); 1996 (4) BCLR 592 (CC) (4 April
1996) 583
New National Party v Government of the Republic of South Africa and Others (CCT9/99) [1999] ZACC 5; 1999
(3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (13 April 1999) 90, 135, 136, 288, 289, 290, 291, 712,
722, 723, 726, 727, 728, 729, 732
New Nation Movement NPC and Others v President of the Republic of South Africa and Others (CCT 110/19)
[2020] ZACC 11; 2020 (8) BCLR 950 (CC) (11 June 2020) 128, 131, 132, 133, 134, 595, 599, 600,
601, 712, 714, 733, 734, 735
Ngewu and Another v Post Office Retirement Fund and Others (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR
421 (CC) (7 March 2013) 532
Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another (734/2017) [2019]
ZASCA 57; [2019] 3 All SA 69 (SCA); 2020 (1) SA 52 (SCA) (3 April 2019) 505
Ngqukumba v Minister of Safety and Security and Others (CCT 87/13) [2014] ZACC 14; 2014 (7) BCLR 788
(CC); 2014 (5) SA 112 (CC); 2014 (2) SACR 325 (CC) 82
Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) 765
Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12; [2016] 2
All SA 415 (SCA); 2016 (4) SA 1 (SCA) (10 March 2016) 507
Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33; 2010
(4) BCLR 312 (CC) (19 November 2009) 528, 789

O
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and
Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008)
501, 502, 509, 564, 809, 817, 818
Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others 2011 (1) SA
293 (CC) 754, 755
Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others (29847/2014) [2017]
ZAGPJHC 160; [2017] 3 All SA 943 (GJ); 2017 (6) SA 129 (GJ) (27 June 2017) 635
Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly (CCT 16/12) [2012] ZACC 27; 2012 (6)
SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October 2012) 113, 163, 164, 165, 166

P
Paulsen and Another v Slip Knot Investments 777 (Pty) Limited (CCT 61/14) [2015] ZACC 5; 2015 (3) SA
479 (CC); 2015 (5) BCLR 509 (CC) (24 March 2015) 235, 236, 425
Penrice v Dickinson 1945 AD 6 266
Phaahla v Minister of Justice and Correctional Services and Another (Tlhakanye Intervening) (CCT44/18)
[2019] ZACC 18; 2019 (2) SACR 88 (CC); 2019 (7) BCLR 795 (CC) (3 May 2019) 485, 524, 530
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the
Republic of South Africa and Others (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR
241 (CC) (25 February 2000) 50, 51, 80, 82, 206, 207, 233
Pheko and Others v Ekurhuleni Metropolitan Municipality and Others (Pheko II) (CCT19/11) [2016] ZACC 20;
2016 (10) BCLR 1308 (CC) (26 July 2016) 508
Pheko and Others v Ekurhuleni Metropolitan Municipality (CCT 19/11) [2011] ZACC 34; 2012 (2) SA 598
(CC); 2012 (4) BCLR 388 (CC) (6 December 2011) 508
Phillips and Another v Director of Public Prosecutions and Others (CCT20/02) [2003] ZACC 1; 2003 (3) SA
345 (CC); 2003 (4) BCLR 357 (CC) (11 March 2003) 671
Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC) (28 February 2013) 98, 375, 376
Police and Prisons Civil Rights Union v South African Correctional Services Workers’ Union and Others
(CCT152/17) [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) (23 August 2018) 446
Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004
(12) BCLR 1268 (CC) (1 October 2004) 427, 501, 745, 746, 817
Potgieter v Lid van die Uitvoerende Raad: Gesondheid, Provinsiale Regering Gauteng (CCT 26/01) [2001]
ZACC 4; 2001 (11) BCLR 1175 (8 October 2001) 465
Premier: Limpopo Province v Speaker of the Limpopo Provincial Legislature and Others (CCT 94/10) [2011]
ZACC 25; 2011 (6) SA 396 (CC); 2011 (11) BCLR 1181 (CC) (11 August 2011) 317, 318, 319, 325,
353
Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies
of State Aided Schools: Eastern Transvaal (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR
151 (2 December 1998) 201
Premier of KwaZulu-Natal and Others v President of the Republic of South Africa and Others (CCT36/95)
[1995] ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29 November 1995) 239
Premier of the Eastern Cape and Others v Ntamo and Others (169/14) [2015] ZAECBHC 14; 2015 (6) SA
400 (ECB); [2015] 4 All SA 107 (ECB) (18 August 2015) 380
Premier of the Western Cape and Others v Overberg District Municipality and Others (801/201) [2011]
ZASCA 23; 2011 (4) SA 441 (SCA); [2011] 3 All SA 385 (SCA) (18 March 2011) 346, 347
President of the Republic of South Africa and Another v Hugo (Hugo) (CCT11/96) [1997] ZACC 4; 1997 (6)
BCLR 708; 1997 (4) SA 1 (18 April 1997) 33, 190, 199, 200, 206, 208, 448, 521, 524–525
President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (CCT20/04) [2005]
ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005) 503, 813, 814
President of the Republic of South Africa and Others v M & G Media Ltd (CCT 03/11) [2011] ZACC 32; 2012
(2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011) 201
President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU
III) (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (10 September 1999) 80,
182, 190, 191, 199, 202, 203, 207, 209, 210, 214, 239
President of the Republic of South Africa and Others v South African Rugby Football Union and Others –
Judgment on recusal application (SARFU II) (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7)
BCLR 725 (4 June 1999) 248
President of the Republic of South Africa v Office of the Public Protector and Others (91139/2016) [2017]
ZAGPPHC 747; 2018 (2) SA 100 (GP); [2018] 1 All SA 800 (GP); 2018 (5) BCLR 609 (GP) (13
December 2017) 192
President of the Republic of South Africa v Public Protector 2018 (2) SA 100 (GP); [2018] 1 All SA 800 (GP);
2018 (5) BCLR 609 (GP) 192
Primedia Broadcasting (a division of Primedia (Pty) Ltd) and Others v Speaker of the National Assembly and
Others (784/2015) [2016] ZASCA 142; [2016] 4 All SA 793 (SCA); 2017 (1) SA 572 (SCA) (29
September 2016) 115
Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public
Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others
(4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31 March
2017) 490
Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA
794 (CC); 2002 (3) BCLR 231 (CC) (25 January 2002) 450, 451, 457, 459, 464, 467, 490, 620, 623,
624, 629, 631, 632
Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR
759 (CC) (18 April 1997) 33, 207, 521, 524, 525, 528, 529, 530, 531, 545
Print Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22;
2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012) 675, 688, 689
The Public Protector v Mail & Guardian Ltd and Others (2011 (4) SA 420 (SCA)) [2011] ZASCA 108; 422/10
(1 June 2011) 293
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC) (22
July 2019) 297, 298

Q
Qwelane v South African Human Rights Commission and Another (686/2018) [2019] ZASCA 167; [2020] 1
All SA 325 (SCA); 2020 (2) SA 124 (SCA); 2020 (3) BCLR 334 (SCA) (29 November 2019) 693, 694,
695, 697

R
Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359
(CC); 2005 (4) BCLR 301 (CC) (26 November 2004) 506, 578
Ramakatsa and Others v Magashule and Others 2013 (2) BCLR 202 (CC) 110, 128, 129, 609, 611, 712,
713, 714, 715
Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government
and Another (CCT 110/08) [2009] ZACC 24; 2009 (6) SA 391 (CC); 2010 (1) BCLR 61 (CC) (27 August
2009) 742, 756, 757
The re-opened inquest into the death of Ahmed Essop Timol (IQ01/2017) [2017] ZAGPPHC 652 (12 October
2017) 571, 572, 573
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes, Minister for Housing and Minister of
Local Government and Housing, Western Cape (Centre on Housing Rights and Evictions and Community
Law Centre, University of the Western Cape as amicus curiae) (CCT 22/08) [2009] ZACC 16, 2009 (9)
BCLR 847 (CC); 2010 (3) SA 454 (CC) (10 June 2009) 510, 817
Richter v The Minister for Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615
(CC); 2009 (5) BCLR 448 (CC) (12 March 2009) 90, 137, 713, 726, 732, 733
Roberts v United States Jaycees 468 U.S. 609 (1984) 601, 602
Royal Society for the Prevention of Cruelty to Animals (RSPCA) v Attorney-General [2002] 1 WLR 448 603
R v Big M Drug Mart (1985) 13 CRR 64 103 (SCC) 440
R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 33
R v Oakes 132 (1986) 19 CRR 308 (SCC) 434, 435, 449, 450, 451, 475
R v Paty (Case of the Men of Aylesbury) (1704) 2 Lord Raym 1105, 91 ER 817 118
S
Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 13
Sailing Queen Investments v The Occupants La Colleen Court (4480 / 07) [2008] ZAGPHC 15; 2008 (6)
BCLR 666 (W) (25 January 2008) 501
Salem Party Club and Others v Salem Community and Others (CCT26/17) [2017] ZACC 46; 2018 (3) SA 1
(CC); 2018 (3) BCLR 342 (CC) (11 December 2017) 425
Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1998 (2) SA 38 (CC); 1997 (12)
BCLR 1675 (CC) (2 December 1997) 515
S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01)
[2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002) 83, 245, 248, 249, 250, 268,
269, 270, 288, 484
Sarrahwitz v Martiz N.O. and Another (CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR
925 (CC) (4 June 2015) 493, 531
Satchwell v President of Republic of South Africa and Another (CCT45/01) [2002] ZACC 18; 2002 (6) SA 1
(CC); 2002 (9) BCLR 986 (CC) (25 July 2002) 524
Sauve v Canada (Chief Electoral Officer) 2002 SCC 68 731
Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another
(CCT 23/12) [2012] ZACC 26; 2013 (1) SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012) 509
Schubart Park Residents Association v City of Tshwane Metropolitan Municipality (CCT 23/12) [2012] ZACC
26; 2013 (1) SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012) 817
Section 27 v Minister of Basic Education (24565/2012) [2012] ZAGPPHC 114; [2012] 3 All SA 579 (GNP);
2013 (2) BCLR 237 (GNP); 2013 (2) SA 40 (GNP) (17 May 2012) 828
Seedat’s Executors v The Master (Natal) 1917 AD 302 616
Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94) [1995] ZACC 12; 1996 (1)
SA 725 (CC); 1995 (12) BCLR 1593 (CC) (29 November 1995) 666, 667
Shilubana and Others v Nwamitwa (Commission for Gender Equality, National Movement of Rural Women and
The Congress of Traditional Leaders of South Africa as Amici Curiae) (CCT 03/07) [2008] ZACC 9; 2008
(9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008) 224, 372, 374, 375
Shoprite Checkers (Pty) Limited v Premier, Gauteng Province and Others (71551/2011) [2016] ZAGPPHC (11
October 2016) 341
Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape and Others (CCT 216/14)
[2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9) BCLR 1052 (CC) (30 June 2015) 742
Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others (Sibiya I)
(CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC) (25 May 2005) 510, 575
Sibiya and Others v Director of Public Prosecutions (Sibiya III) (CCT45/04B) [2006] ZACC 22; 2006 (2) BCLR
293 (CC) (30 November 2006) 510
Sigurjónsson v Iceland (1993) 16 EHRR 462 132, 600
Social Justice Coalition and Others v Minister of Police and Others (EC03/2016) [2018] ZAWCHC 181; 2019
(4) SA 82 (WCC) (14 December 2018) 556
Solidariteit Helpende Hand NPC & Another v Minister of Basic Education & Others (58189/2015) [2017]
ZAGPPHC 1220 (8 November 2017) 561
Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18; 2016
(5) SA 594 (CC); 2016 (10) BCLR 1349 (CC) (15 July 2016) 535
Sonderup v Tondelli 2001 (1) SA 1171 (CC); 2001 (12) BCLR 152 (CC) 585
Soobramoney and Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02)
[2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (5 July 2002) 789, 793, 794, 797,
798, 803, 804, 808, 811, 812
Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC);
1997 (12) BCLR 1696 (CC) (27 November 1997) 27, 35, 786, 797, 803–804, 815, 816
S.O.S. Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation SOC
Limited and Others (81056/14); [2017] ZAGPJHC 289 (17 October 2017) 194
South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000] ZACC 22; 2001
(1) SA 883 (CC); 2001 (1) BCLR 77 (28 November 2000) 60, 67, 101, 793
South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others
(CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); (21 September 2006)
675, 677
South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others (CCT58/06)
[2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC) (21 September 2006) 439, 474
South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others (393/2015)
[2015] ZASCA 156; [2015] 4 All SA 719 (SCA); 2016 (2) SA 522 (SCA) (8 October 2015) 286, 293,
295
South African Broadcasting Corporation v Downer NO and Shaik (435/06) [2006] ZASCA 90; [2006] SCA 89
(RSA); [2007] 1 All SA 384 (SCA) (24 August 2006) 680, 681
South African Diamond Producers Organisation v Minister of Minerals and Energy NO and Others (CCT234/16)
[2017] ZACC 26; 2017 (6) SA 331 (CC); 2017 (10) BCLR 1303 (CC) (24 July 2017) 754, 755
South African Human Rights Commission v Qwelane and Another (EQ44/2009; EQ13/2012) [2017] ZAGPJHC
218; [2017] 4 All SA 234 (GJ); 2018 (2) SA 149 (GJ) (18 August 2017) 691, 692
South African Human Rights Commission v Velaphi Khumalo (EQ6-2016; EQ1-2018) [2018] ZAGPJHC 528;
2019 (1) SA 289 (GJ); [2019] 1 All SA 254 (GJ) (5 October 2018) 694
South African Municipal Worker’s Union v Minister of Co-Operative Governance and Traditional Affairs
(3558/2013) [2016] ZAGPPHC 733 (23 February 2016) 321
South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007
(5) SA 400 (CC); 2007 (8) BCLR 863 (CC); (30 May 2007) 528
South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469;
1999 (6) BCLR 615 (26 May 1999) 403, 456, 458, 460, 466, 667, 701
South African National Defence Union v Minister of Defence (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400
(CC); 2007 (8) BCLR 863 (CC) (30 May 2007) 440, 497
South African National Road Agency Ltd v The Toll Collect Consortium and Another (796/2012) [2013] ZASCA
102; [2013] 4 All SA 393 (SCA); 2013 (6) SA 356 (SCA) (12 September 2013) 361
South African Police Service v Police and Prisons Civil Rights Union and Another (CCT 89/10) [2011] ZACC
21; 2011 (6) SA 1 (CC); 2011 (9) BCLR 992 (CC) (9 June 2011) 421
South African Police Service v Solidarity obo Barnard (CCT 01/14) [2014] ZACC 23; 2014 (6) SA 123 (CC);
2014 (10) BCLR 1195 (CC); (2 September 2014) 521, 535, 536
South African Reserve Bank and Another v Shuttleworth and Another (CCT194/14, CCT199/14) [2015] ZACC
17; 2015 (5) SA 146 (CC); 2015 (8) BCLR 959 (CC) (18 June 2015) 63
South African Reserve Bank v Public Protector and Others (43769/17) [2017] ZAGPPHC 443; [2017] 4 All
SA 269 (GP); 2017 (6) SA 198 (GP) (15 August 2017) 299, 300
South African Social Security Agency and Another v Minister of Social Development and Others (CCT 48/17)
[2018] ZACC 26; 2018 (10) BCLR 1291 (CC) (30 August 2018) 512
South African Social Security Agency and Another v Minister of Social Development and Others (CCT48/17)
[2018] ZACC 26; 2018 (10) BCLR 1291 (CC) (30 August 2018) 497
South African Transport and Allied Workers Union and Another v Garvas and Others (SATAWU) (CCT 112/11)
[2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (13 June 2012) 86, 699, 700, 701,
 707, 710, 711
South African Veterinary Association v Speaker of the National Assembly 2019 (2) BCLR 273 (CC) 124
Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others
(27740/2015) [2015] ZAGPPHC 402; 2016 (1) SACR 161 (GP); 2015 (5) SA 1 (GP); [2015] 3 All SA
505 (GP); 2015 (9) BCLR 1108 (GP) (24 June 2015) 484
Speaker of the National Assembly v De Lille MP and Another (297/98) [1999] ZASCA 50; [1999] 4 All SA
241 (A) (26 August 1999) 118
State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited (CCT254/16) [2017] ZACC
40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC) (14 November 2017) 405, 406
Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park 2009 (4) SA 510 (T) 404, 626
Sunday Times v The United Kingdom (1979) 2 EHRR 245 448
S v Baloyi (Minister of Justice Intervening) (CCT29/99) [1999] ZACC 19; 2000 (2) SA 425 (CC); 2000 (1)
BCLR 86 (CC) (3 December 1999) 578, 585
S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997 (2) SA 887 (18 November 1996)
241, 420
S v Bhulwane, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR
1579 (CC) (29 November 1995) 451, 456, 459, 463, 478, 486, 495, 496, 498, 819
S v Boesak (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912 (1 December 2000) 234,
235, 236, 237
S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) (5 April 2001) 59,
104, 459, 579, 580
S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae
(CCT31/01) [2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11) BCLR 1117 (CC) (9 October 2002)
439, 444, 456, 457, 464, 550, 555, 588, 589
S v Lawrence, S v Negal; S v Solberg (CCT38/96, CCT39/96, CCT40/96) [1997] ACC 11; 1997 (4) SA 1176
(CC); 1997 (10) BCLR 1348 (CC) (6 October 1997) 616, 618, 619, 620, 621, 622, 633, 634
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC);
1995 (2) SACR 1 (CC) (6 June 1995) 27, 29, 32, 33, 43, 44, 69, 71, 72, 100, 222, 247, 433, 434,
435, 436, 437, 438, 440, 452, 454, 457, 459, 462, 468, 475, 510, 514, 562, 581, 582
S v Mamabolo (eTV and Others Intervening (CCT 44/00); [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5)
BCLR 449 (CC) (11 April 2001) 50, 226, 401, 462, 666, 668, 672
S v Manamela (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) (14 April 2000)
456, 463, 487
S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9
February 1996) 241, 498
S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) (8
June 1995) para 59; Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4)
SA 615 (CC); 1995 (10) BCLR 1424 (CC) (22 September 1995) 420
S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007) 567
S v Niemand (CCT 28/00) [2001] ZACC 11; 2002 (1) SA 21 (CC); 2002 (3) BCLR 219 (8 October 2001)
579, 580, 581
S v Ntsele (CCT25/97) [1997] ZACC 14; 1997 (11) BCLR 1543 (CC) (14 October 1997) 495
S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1) SA 1207 (CC); 1996 (1) BCLR 141 (CC) (8 December
1995) 530
S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858; 2002 (8) BCLR 793 (12 June 2002) 457
S v Steyn (CCT19/00) [2000] ZACC 24; 2001 (1) SA 1146 (CC); 2001 (1) BCLR 52 (CC) (29 November
2000) 469
S v Yengeni [2005] ZAGPHC 117; 2006 (1) SACR 405 (T) 275
S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA); 1995 (1)
SACR 568; [1996] 2 CHRLD 244 (5 April 1995) 4, 33, 241, 247, 440, 495

T
Tanganyika Law Society v United Republic of Tanzania; Mtikila v United Republic of Tanzania No. 009/2011
ACHPA 2011 133, 600
Tantoush v Refugee Appeal Board and Others (13182/06) [2007] ZAGPHC 191; 2008 (1) SA 232 (T) (11
September 2007) 403
Taylor v Kurstag NO and Others 2005 (1) SA 362 (W); 2005 (7) BCLR 705 (W); [2004] 4 All SA 317 (W)
624, 646, 647, 648
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development (CCT 12/13)
[2013] ZACC 35; 2014 (2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) (3 October 2013) 461, 470, 471,
514, 515, 562, 568, 569, 590
Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC)
(28 August 2003) 234, 425, 426, 583
Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of Public Prosecutions, Zuma v
National Director of Public Prosecutions (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2009 (1) SA 141
(CC); 2009 (3) BCLR 309 (CC) (31 July 2008) 671
Tlouamma and Others v Mbete, Speaker of the National Assembly of the Parliament of the Republic of South
Africa and Another 2015 (2) SA 534 (WCC) 143, 144, 188
Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010]
ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010) 98, 170, 171, 172, 323,
368, 369, 393, 770
Torcaso v Watkins 367 U.S. 488 633
Transvaal Agricultural Union v Minister of Land Affairs and Another (CCT21/96) [1996] ZACC 22; 1996 (12)
BCLR 1573; 1997 (2) SA 621 (18 November 1996) 241
Tripartite Steering Committee and Another v Minister of Basic Education and Others (1830/2015) [2015]
ZAECGHC 67; 2015 (5) SA 107 (ECG); [2015] 3 All SA 718 (ECG) (25 June 2015) 829
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others
(CCT114/15) [2016] ZACC 2; 2016 (3) SA 160 (CC); 2016 (4) BCLR 469 (CC) (29 January 2016) 341
Trustees for the time being of the Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and
Others (050/2012) [2012] ZASCA 182; 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1
All SA 648 (SCA) (29 November 2012) 409
Tsotetsi v Mutual and Federal Insurance Company Ltd (CCT16/95) [1996] ZACC 19; 1997 (1) SA 585 (CC);
1996 (11) BCLR 1439 (CC) (12 September 1996) 481, 485
Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others (CCT 93/12) [2013]
ZACC 19; 2013 (10) BCLR 1180 (CC); 2013 (2) SACR 443 (CC) (13 June 2013) 407

U
Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others (CCT
39/06) [2006] ZACC 23; 2007 (4) SA 395 (CC); 2007 (4) BCLR 339 (CC) (12 December 2006) 547
United Democratic Movement and Others v Speaker of the National Assembly and Others 2017 (5) SA 300
(CC) (22 June 2017) 61, 66, 142
United Democratic Movement (UDM) v President of the Republic of South Africa and Others (African Christian
Democratic Party and Others intervening; Institute for Democracy in South Africa and Others as Amici
Curiae (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (4 October
2002) 90, 91, 239
United Democratic Movement v Speaker of the National Assembly and Others (CCT89/17) [2017] ZACC 21;
2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017) 109, 156, 186, 187, 188
University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and
Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others;
Mavava Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others
(CCT127/15) [2016] ZACC 32; 2016 (6) SA 596 (CC); (CC) 2016 (12) BCLR 1535 (CC) (13 September
2016) 494
University of the Free State v Afriforum and Another (1027/2016) [2017] ZASCA 32; [2017] 2 All SA 808
(SCA); 2017 (4) SA 283 (SCA) (28 March 2017) 836
Uthukela District Municipality and Others v President of the Republic of South Africa and Others (CCT7/02)
[2002] ZACC 11; 2003 (1) SA 678 (CC); 2002 (11) BCLR 1220 (CC) (12 June 2002) 309
Uys N.O. and Another v Msiza and Others (1222/2016) [2017] ZASCA 130; 2018 (3) SA 440 (SCA) (29
September 2017) 767

V
Van Breda v Media 24 Limited and Others; National Director of Public Prosecutions v Media 24 Limited and
Others 682, 683, 684
Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006
(6) BCLR 682 (CC) (30 March 2006) 532
Van der Spuy v General Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392;
2002 (10) BCLR 1092 (18 July 2002) 241
Van Der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4; 2002 (4) SA 317 (CC); 2002 (5) BCLR
454 (CC) (11 April 2002) 530
Van Zyl v New National Party and Others [2003] 3 All SA 737 (C) 149
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another (CCT 34/10)
[2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC) (23 November 2010) 407
Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005)
524
Von Abo v President of the Republic of South Africa (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052
(CC); 2009 (5) SA 345 (CC) (5 June 2009) 209

W
Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11)
BCLR 1067 (CC) (13 June 2008) 528
Wallach v High Court of South Africa (Witwatersrand Local Division) and Others (CCT2/03) [2003] ZACC 6;
2003 (5) SA 273 (CC) (4 April 2003) 244
Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Another 2011
(5) SA 87 (WCC); [2010] ZAWCHC 544; 18678/2007 (11 November 2010) 829
Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v North West Provincial
Government and Another (CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347; 2001 (1) SA 500 (2 March
2000) 170, 270, 368
Wittmann v Deutscher Schulverein 1998 (4) SA 423 (T) 633, 635
Women’s Legal Trust v President of the Republic of South Africa and Others (CCT13/09) [2009] ZACC 20;
2009 (6) SA 94 (CC) (22 July 2009) 238, 240

Y
Young, James and Webster v The United Kingdom (1981) 4 EHRR 38 132, 600
Z
Zealand v Minister for Justice and Constitutional Development and Another (CCT54/07) [2008] ZACC 3; 2008
(4) SA 458 (CC); 2008 (6) BCLR 601 (CC) (11 March 2008) 575
Zuma v National Director of Public Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1 All SA 54 (N);
2009 (1) BCLR 62 (N) (12 September 2008) 251, 275, 487
Attorney-General Act 92 of 1992 272
Section 3(1)(b) 272
Section 4 272

Bantu Authorities Act 68 of 1951 13, 369, 383

Bantu Education Act 47 of 1953 823

Bantu Homelands Constitution Act 21 of 1971 369

Bill of Rights (chapter 2 of the Constitution of the Republic of South Africa, 1996) 15, 26, 29, 84, 119, 171,
191, 198, 199, 200, 201, 202, 203, 216, 218, 247, 392, 397, 398, 399, 400, 402, 403, 404, 405,
406, 408, 409, 410, 411, 412, 413, 414, 415, 417, 418, 420, 421, 422, 423, 424, 425, 426, 428,
430, 433, 434, 438, 440, 446, 456, 471, 472, 474, 477, 478, 479, 480, 483, 486, 503, 506, 514,
515, 516, 517, 518, 562, 564, 565, 569, 572, 573, 574, 577, 592, 601, 610, 628, 638, 639, 640,
644, 645, 647, 648, 649, 654, 713, 722, 726, 728, 735, 748, 769
Section 7(2) 798
Section 8 399
Section 8(1) 413
Section 9 518, 519, 521
Section 9(3) 627
Section 12(2) 583
Section 15 614
Section 15(1) 614, 642
Section 15(2) 614
Section 16 464, 474
Section 19 110
Section 26(2) 807
Section 27(2) 807
Section 31(1)(a) 642
Section 33 201, 507
Section 34 507
Section 35(3)(h) 236
Section 36 399
Section 37 399
Section 38 399
 Section 39 399

Black Administration Act 38 of 1927 (BAA) 12, 13, 270, 271, 368, 648, 649
Section 1 12
Section 12 12, 270, 271
Section 12(4) 271
Section 20 270, 271
Section 20(6) 271

Bophuthatswana Traditional Courts Act 29 of 1979 270

Broad Based Black Economic Empowerment Act 53 of 2003 535

Broadcasting Act 4 of 1999

Section 13(1) 194

Chiefs Courts Act 6 of 1993 (Transkei) 270

Children’s Act 38 of 2005 231

Choice on Termination of Pregnancy Act 92 of 1996 586

Civil Union Act 17 of 2006 618

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities Act 19 of 2002
Section 5 641

Communal Land Rights Act 11 of 2004 (CLaRA) 98, 770

Communal Property Associations Act 28 of 1996 770

Companies Act 61 of 1973

Section 417 573
Section 417(2)(b) 573

Constitutional Amendment Bill, 2019 152, 771

Constitutional Court Complementary Act 13 of 1995

Section 5 267

Constitutional Principles 20, 21, 22, 25

Constitutional Principle VI 56, 59, 276
Constitutional Principle XIII 370, 371, 394
Constitutional Principle XIX 305
Constitutional Principle XVI 305
Constitutional Principle XVIII 305, 306
Constitutional Principle XXI 305
Constitutional Principle XXII 305
 Constitutional Principle XXIII 305
Constitutional Principle XXIV 305
Constitutional Principle XXVI 305

Constitution Fifteenth Amendment Act of 2008

Section 2 139

Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution) 18, 19, 20, 21, 22,
24, 56, 59, 72, 79, 99, 100, 191, 199, 204, 214, 229, 232, 243, 304, 326, 370, 414, 432, 433, 434,
462, 474, 485, 573, 742
Chapter 5 20
Schedule 4 56, 305, 787
Section 10 434
Section 11 434
Section 11(1) 573, 574
Section 11(2) 581
Section 12 434
Section 14(1) 434
Section 15 434
Section 16 434
Section 17 434
Section 18 434
Section 21 434
Section 22 473
Section 23 434
Section 24 434
Section 25 434
Section 28 742
Section 30(1)(d) 434
Section 30(1)(e) 434
Section 30(2) 434
Section 33 434, 436, 451
Section 33(1) 432, 434, 435, 436, 449
Section 35(3) 417
Sections 68–73 20
Section 68(1) 20
Section 68(2) 20
Section 68(3) 20
Section 71(2) 20
Section 71(3) 22
Sections 72–73 24
Section 73(1) 20
Section 73(2) 20
Section 73(8) 24
Section 82(1) 192
 Section 97(2)(a) 21
Section 98(6) 495
Section 99(3) 21
Section 99(4) 21
Section 99(5) 21
Section 109 268
Section 126(3) 326
Section 181(1) 370
Section 182 370
Section 183 370

Constitution of the Republic of South Africa, 1996 (final Constitution) 4, 5, 6, 8, 9, 10, 15, 20, 21, 22,
23, 24, 25, 26, 27, 32, 35, 39, 42, 44, 46, 49, 50, 51, 53, 54, 56, 59, 60, 62, 66, 69, 79, 83, 87, 95,
97, 99, 100, 101, 103, 123, 126, 155, 160, 178, 183, 191, 192, 196, 204, 229, 232, 234, 237, 243,
269, 272, 273, 346, 364, 394, 462, 583, 618, 774, 782
Chapter 1 58
Chapter 2 722
Chapter 3 54, 55, 97, 162, 289, 308, 309
Chapter 4 62, 97, 100
Chapter 5 65, 97, 100, 196
Chapter 6 66, 97, 313
Chapter 7 97, 337
Chapter 8 66, 97, 100
Chapter 9 283, 291, 309, 642
Chapter 11 406
Chapter 12 270, 364, 394
Chapter 13 348, 349, 362
Chapter 14 50
Preamble 84, 94, 393, 678
Schedule 2 183, 190
Schedule 4 97, 163, 172, 307, 308, 314, 315, 316, 317, 318, 320, 321, 322, 323, 324, 325, 327,
338, 339, 345, 361
Schedule 4A 306, 338, 342, 343
Schedule 4B 306, 336, 337, 338, 339, 340, 343, 344, 362
Schedule 5 97, 163, 172, 307, 308, 314, 316, 317, 318, 320, 321, 322, 323, 324, 327, 328, 337,
338, 339, 345, 361
Schedule 5A 307, 342
Schedule 5B 307, 336, 337, 339, 340, 343, 344, 362
Schedule 6
Section 16 270
Section 1 26, 28, 50, 52, 53, 54, 75, 84, 89, 100, 141, 171, 239, 574, 576, 712, 727, 784
Section 1(a) 30, 256, 514, 562, 652
Section 1(c) 49, 79, 101, 299, 400
Section 1(d) 84, 85, 89, 90, 109, 127, 391, 718
Section 2 26, 49, 50, 482
Section 6 285, 639, 651, 653, 661
Section 6(1) 652, 660
Section 6(2) 652, 660
Section 6(3) 660, 661
Section 6(4) 639, 651, 661
Section 7 28, 100, 417
Section 7(1) 30, 94
Section 7(2) 26, 29, 577, 584, 795
Section 7(3) 430, 471
Section 7(6) 638
Section 8 646
Section 8(1) 101, 410, 411, 412, 413, 414, 417, 418, 419, 420, 428, 798, 836
Section 8(2) 29, 410, 411–412, 413, 417, 418, 419, 420, 428, 479, 480, 647, 648, 798
Section 8(3) 412, 413, 479, 480, 647, 648
Section 8(3)(b) 413
Section 8(4) 404, 428
Section 9 404, 468, 498, 523, 524, 527, 528, 551, 554, 555, 560, 562, 591, 638, 640
Section 9(1) 402, 445, 523, 524, 527, 528, 529, 530, 531, 532, 545, 591, 653, 685
Section 9(2) 442, 527, 529, 530, 532, 533, 534, 536, 537, 539, 540, 541, 542, 543, 544, 545, 558,
560, 561, 591, 592, 653
Section 9(3) 442, 524, 525, 527, 528, 529, 530, 534, 536, 540, 541, 545, 546, 547, 548, 550, 551,
554, 555, 556, 557–558, 567, 569, 591, 592, 627, 638, 639, 640, 645, 649, 652, 653, 654,
816, 830
Section 9(4) 29, 234, 472, 554, 592, 654
Section 9(5) 546, 551
Section 10 445, 562, 564, 569, 592, 685, 791
Section 11 402, 404
Section 12 570, 572, 583
Section 12(1) 570, 572, 573, 577, 578, 583
Section 12(1)(a) 575, 577
Section 12(1)(b) 575, 576
Section 12(1)(c) 566, 567, 577, 578–579
Section 12(1)(e) 579, 580, 581
Section 12(2) 570, 582, 583, 584, 585, 586
Section 12(2)(a) 586
Section 12(2)(b) 586
Section 13 402
Section 14 404, 441, 445, 587, 592, 618
Section 15 617, 618, 623, 630, 632, 633, 685, 789
Section 15(1) 618, 627, 636, 639
Section 15(2) 619, 620, 633, 634, 635, 636
Section 15(3) 472, 636, 637, 638
Section 15(3)(a)(i) 636
Section 16 119, 404, 412, 442, 494, 667, 671, 672, 676, 690, 693, 694, 735
Section 16(1) 441, 608, 667, 672, 673, 675, 690, 691, 692, 694, 720
Section 16(2) 441, 640, 667, 672, 673, 686, 690, 691, 692, 694, 695
Section 16(2)(a) 690
Section 16(2)(b) 690
Section 16(2)(c) 691–692, 695
Section 17 86, 430, 697, 699, 700, 701, 705, 707, 708, 711
Section 18 404, 595, 734, 735
Section 19 89, 90, 91, 109, 129, 402, 404, 608, 609, 712, 713, 716, 720, 735
Section 19(1) 90, 607, 712, 714, 715, 722, 734
Section 19(1)(a) 403, 734
Section 19(1)(b) 734
Section 19(1)(c) 734
Section 19(2) 90, 135, 607, 712, 722
Section 19(3) 90, 135, 446, 447, 712, 727, 728, 729, 733
Section 19(3)(a) 731
Section 19(3)(b) 131, 132, 133, 134, 599, 733, 734, 735
Section 20 402
Section 22 402, 471, 656
Section 23 789
Section 23(2)(a) 403, 458
Section 23(5) 472
Section 24 343, 344, 473, 789, 790
Section 24(b) 442, 790
Section 25 324, 404, 437, 438, 740, 741, 742, 746, 758, 763, 764, 766, 767, 768, 769, 770, 771,
772, 775, 779, 790
Section 25(1) 442, 740, 742, 750, 751, 753, 754, 755, 756, 757, 758, 760, 761, 762, 763, 764
Section 25(1)–(3A) 771
Section 25(2) 471, 740, 751, 758, 763, 764, 765, 766, 769, 771
Section 25(2)(a) 750, 751, 766
Section 25(2)(b) 750, 751, 765
Section 25(3) 459, 740, 763, 764, 765, 766, 767, 770
Section 25(4) 740
Section 25(5) 740, 741, 777, 790
Section 25(6) 740, 741, 747, 748
Section 25(7) 740, 741, 777, 778
Section 25(8) 740, 741
Section 25(5)–(9) 774
Sections 26–28 29
Section 26 746, 787, 789, 790, 801, 802, 803, 805, 806, 807, 811, 821
Section 26(1) 789, 790, 801, 805, 806, 810, 812, 813, 825, 837, 838
Section 26(2) 501, 789, 790, 791, 801, 805, 806, 810, 812, 813
Section 26(3) 790
Section 27 404, 504, 787, 789, 790, 801, 802, 803, 805, 811, 812, 821
Section 27(1) 790, 806, 808, 810, 825, 837
Section 27(1)(a) 804, 808, 810, 815
Section 27(1)(b) 797, 809
Section 27(1)(c) 810, 816
Section 27(2) 789, 790, 791, 808, 809, 810, 813, 815
Section 27(3) 790, 804
Section 28 402
Section 28(1)(a) 403
Section 28(1)(c) 789, 790, 791, 805
Section 28(2) 445, 685
Section 29 787, 789, 798, 821, 822
Section 29(1) 418, 653, 789, 822, 825, 837
Section 29(1)(a) 791, 821, 825, 828, 837, 838
Section 29(1)(b) 790, 825, 837, 838, 839, 840, 841
Section 29(2) 639, 652, 654, 657, 658, 659, 660, 789, 822, 830, 831, 832, 833, 834, 835, 836
Section 29(3) 635, 636, 640, 822
Section 30 639, 640, 642, 643, 644, 645, 646, 652, 789
Section 31 622, 630, 639, 640, 642, 643, 644, 645, 646, 652, 654, 789
Section 31(1) 645, 653
Section 31(2) 645
Section 32 29, 201, 404, 608, 720, 791, 797
Section 33 29, 119, 201, 202, 203, 404, 405, 406, 436, 462, 757, 791
Section 33(1) 406, 459
Section 33(2) 406
Section 33(3) 406, 472
Section 34 29, 66, 119, 404, 511, 577
Section 35 402
Section 35(1)(a) 436
Section 35(2)(e) 789, 791
Section 35(3) 576
Section 35(3)(h) 236
Section 35(3)(o) 237, 469, 470
Section 36 136, 398, 399, 430, 432, 447, 471, 472, 558, 562, 612, 613, 630, 751, 791, 800, 801,
802, 803, 841
Section 36(1) 94, 430, 431, 432, 436, 437, 438, 442, 443, 445, 446, 448, 449, 450, 451, 456, 458,
459, 463, 468, 471, 472, 473, 474, 475, 555, 558, 586, 591, 648, 695, 728, 741, 800, 802
Section 36(1)(b) 450, 456
Section 36(1)(c) 463
Section 36(1)(d) 450
Section 36(1)(e) 450
Section 36(2) 473
Section 36(6) 741
Section 37 399
Section 38 29, 399, 407, 479, 480, 506, 819
Section 38(a)–(e) 406, 407
Section 38(e) 407
Section 39 399, 426
Section 39(1) 30, 94
Section 39(1)(b) 247
Section 39(1)(c) 247
Section 39(2) 29, 237, 242, 374, 410, 419, 420, 421, 423, 424, 425, 426, 428, 479, 480, 486, 752
Section 40(1) 54, 170, 302, 308
Section 40(2) 29, 308
Section 41 94, 308
Section 41(1) 29, 308, 347
Section 41(1)(e) 171, 308, 339
Section 41(1)(f) 308, 339
Section 41(1)(g) 308
Section 41(1)(h) 308
Section 41(1)(h)(i)–(vi) 54
Section 41(1)(h)(iv) 171
Section 41(3) 308
Section 42(1) 62, 107, 127
Section 42(3) 89, 107, 140, 154
Section 42(4) 107, 145, 329
Section 42(6) 108
Section 43(a) 62
Section 44 163, 339
Section 44(1) 339
Section 44(1)(a) 62
Section 44(1)(a)(i) 163
Section 44(1)(a)(ii) 163, 337
Section 44(1)(a)(iii) 163, 176, 341, 342
Section 44(1)(b)(i) 163
Section 44(1)(b)(ii) 163
Section 44(1)(b)(iii) 163
Section 44(2) 163, 172, 307, 320, 322, 323, 327, 328, 361
Section 44(2)(b) 62
Section 44(4) 62, 337
Section 45 113
Section 46 62
Section 46(1) 127
Section 46(1)(b) 727
Section 46(1)(c) 135, 727
Section 46(1)(d) 89, 110
Section 46(2) 127
Section 47 62, 138
Section 47(1)(b) 138
Section 47(1)(c) 138
Section 47(1)(d) 138
Section 47(1)(e) 138
Section 47(3)(b) 139
Section 47(3)(c) 139, 188, 716
Section 49(1) 138, 139
Section 49(2) 139
Section 50(1) 139
Section 50(2) 139
Section 51(1) 140
Section 51(1)(a)–(c) 286
Section 51(2) 140
Section 51(3) 108, 140
Section 52 140
Section 53(1)(a) 141
Section 53(1)(b) 141
Section 53(1)(c) 141
Section 53(2)(a) 141
Section 53(2)(b) 141
Section 54 141
Section 55 65, 141
Section 55(1) 154
Section 55(2) 65, 108, 142, 163
Section 55(2)(a) 154, 160
Section 55(2)(b) 154, 161
Section 56 114, 157
Section 56(d) 705
Section 57 62, 89, 113
Section 57(1) 113, 153, 188
Section 57(1)(a) 142, 159
Section 57(1)(b) 89, 142
Section 57(2) 113, 153
Section 57(2)(a) 144
Section 57(2)(b) 89, 144, 716
Section 57(2)(c) 109
Section 57(2)(d) 109
Section 58 62
Section 58(1) 119, 120, 121
Section 58(1)(a) 118, 120, 122, 489
Section 58(1)(b) 118
Section 58(2) 119, 120
Section 59 94, 116, 141
Section 59(1) 124
Section 59(1)(a) 123, 155
Section 59(1)(b) 115, 155
Section 59(2) 116, 155
Section 60 62, 147
Section 60(2)(a) 147
Section 60(2)(a)(i) 147
Section 60(2)(a)(ii) 147
Section 60(2)(b) 147
Section 60(3) 147
Section 61 62
Section 61(4) 148
Section 62(2) 148
Section 62(4) 148
Section 62(4)(c) 149
Section 63(3) 108
Section 64(1) 153
Section 64(2) 153
Section 64(3) 153
Section 65(1) 153
Section 65(2) 150, 153, 172
Section 66(1) 151
Section 68 65, 154
Section 69 114, 151, 157
Section 70 62
Section 70(1) 113, 153
Section 70(2) 113
Section 70(2)(a) 153
Section 70(2)(b) 153
Section 70(2)(c) 154
Section 71 62
Section 71(1)(a) 118, 122
Section 71(1)(b) 118
Section 71(2) 119
Section 72 94, 116
Section 72(1) 124
Section 72(1)(a) 123, 124, 155
Section 72(1)(b) 115, 155
Section 72(2) 116, 155
Section 73(1) 171
Section 73(2) 63, 163
Section 74 169, 171, 174, 180, 391
Section 74(1) 50, 171
Section 74(1)(a) 53, 141
Section 74(1)(b) 53
Section 74(2) 171
Section 74(2)(a) 141
Section 74(3) 50
Section 74(3)(b) 171
Section 74(8) 171
Section 75 169, 171, 172, 173, 174, 180, 322
Section 75(1) 150, 171
Section 75(1)(a)–(d) 172
Section 75(2) 150, 153, 171
Section 76 169, 172, 173, 174, 180, 322
Section 76(1) 172
Section 76(1)(d) 173
Section 76(1)(e) 173
Section 76(2) 172
Section 76(2)(d) 173
Section 76(2)(e) 173
Section 76(3) 172
Section 76(4) 172
Section 76(5) 108, 172
Section 77 169, 174, 180, 391
Section 77(1) 174
Section 77(3) 174
Section 78(1) 173
Section 78(2) 173
Section 79 168, 174, 175, 238
Section 79(1) 63, 168, 174
Section 79(4) 174
Section 79(4)(b) 168
Section 79(5) 175
Section 80 238
Section 80(1) 175
Section 80(2) 175
Section 80(2)(a) 238
Section 80(2)(b) 239
Section 80(3) 175
Section 83(a) 65, 190
Section 83(b) 65
Section 84 200, 315
Section 84(1) 65
Section 84(2) 190, 192, 202, 203
Section 84(2)(g) 86
Section 84(2)(k) 190
Section 85 819
Section 85(1) 65, 193
Section 85(1)(b) 63
Section 85(1)(d) 63
Section 85(2) 190, 193, 213, 214
Section 85(2)(a)–(e) 65
Section 86 108, 110
Section 86(1) 140, 183
Section 86(2) 140
Section 86(3) 183
Section 87 183
Section 88(2) 184
Section 89 108, 110, 139, 156, 185, 186, 217, 227, 228
Section 89(1) 113, 141, 157, 160, 184, 185, 186
Section 89(2) 186
Section 90(1) 190, 193
Section 90(1)(a) 277
Section 90(2) 190
Section 90(3) 190
Section 90(4) 190
Section 91(1) 65, 210
Section 91(2) 65, 193, 200, 210, 211, 213, 300
Section 91(3) 63, 65, 108
Section 91(3)(a) 210
Section 91(3)(b) 210
Section 91(3)(c) 210
Section 91(4) 193
Section 91(5) 213, 217
Section 92 154
Section 92(1) 213, 216
Section 92(2) 65, 154, 155, 211, 213, 214
Section 92(3)(b) 66, 215
Section 96 215
Section 96(2) 215
Section 96(3) 214
Section 98 216
Section 99 216, 341, 342
Section 100 312, 328, 329
Section 100(1) 328
Section 100(1)(a) 328
Section 100(1)(b) 162
Section 100(2)(a) 328
Section 100(2)(b) 328
Section 101(1) 199
Section 101(2) 190, 199
Section 102 66, 108, 110, 139, 187, 189, 211, 217
Section 102(1) 212
Section 102(2) 61, 158, 159, 187, 212
Section 103(1) 313
Sections 104–124 313
Section 104 145
Section 104(1) 339
Section 104(1)(b) 308
Section 104(1)(b)(i) 314
Section 104(1)(b)(ii) 314
Section 104(1)(b)(iii) 315, 317
Section 104(1)(b)(iv) 315, 317
Section 104(1)(c) 315, 341, 342
Section 104(2) 315
Section 104(4) 315
Section 105(1)(d) 89
Section 105(2) 315
Section 106 315
Section 109 315
Section 113 315
Section 115 705
Section 118 94, 116
Section 118(1)(a) 124
Section 121 238, 317
Section 122 238
Section 122(2)(a) 238
Section 122(2)(b) 239
Sections 125–141 313
Section 125(2) 316
Section 125(2)(c) 313
Section 125(3) 316
Section 125(4) 162, 316
Section 126 316, 341, 342
Section 126(b)(1) 458
Section 127(2) 315
Section 127(2)(f) 86
Section 128 316
Section 130(3) 316
Section 139 312, 346, 347
Section 139(1) 345, 347
Section 139(1)(b) 162
Section 139(1)(b)(i) 346
Section 139(1)(b)(ii) 346
Section 139(1)(b)(iii) 346
Section 139(1)(c) 346
Section 139(3) 347
Section 139(4) 346, 347
Section 139(5) 347, 348
Section 141 316
Section 142 314
Section 144 240
Section 146 163, 306, 310, 320, 325, 326, 327, 361
Section 146(1) 325
Section 146(2) 307, 325, 326
Section 146(2)(a) 326
Section 146(2)(b) 326
Section 146(2)(c) 326
Section 146(3) 325, 327
Section 146(5) 320
Section 147(2) 307, 328
Section 149 307, 326
Section 151(4) 307, 342, 344, 362
Section 152 330
Section 152(1) 329, 362
Section 152(1)(d) 343
Section 153 329, 330
Section 154(1) 345
Section 154(2) 392
Section 155 333, 335, 362
Section 155(3)(b) 334
Section 155(4) 335
Section 155(5) 319
Section 155(6) 345
Section 155(6)(a) 339
Section 155(7) 339, 340, 345
Section 156 336
Section 156(1) 339
Section 156(1)(a) 336, 337
Section 156(1)(b) 336
Section 156(2) 336
Section 156(3) 307, 344, 362
Section 156(4) 341, 342
Section 156(5) 336, 337, 342, 344
Section 157(2)(a) 89, 735
Section 160(6) 117
Section 161 117
Section 163 172
Section 165 100, 269, 511
Section 165(1) 66, 100
Section 165(2) 67, 100, 255, 272
Section 165(3) 67
Section 165(4) 67
Section 165(5) 49
Section 165(6) 229, 267
Section 166 229
Section 166(a)–(e) 66
Section 166(b) 230
Section 166(d) 269
Section 167 400
Section 167(1) 229
Section 167(3) 232, 233, 237
Section 167(3)(a) 66, 235, 242
Section 167(3)(b) 233, 242
Section 167(3)(b)(ii) 235, 236
Section 167(3)(c) 235, 242
Section 167(4)(a) 234, 238
Section 167(4)(b) 238
Section 167(4)(c) 238
Section 167(4)(d) 239
Section 167(4)(e) 239, 240
Section 167(5) 67, 101, 237, 244, 761
Section 167(6) 240
Section 167(7) 233
Section 168 400
Section 168(1) 230
Section 168(3) 232
Section 168(3)(a) 243
Section 169 230, 400
Section 169(1)(a) 244
Section 169(2) 230
Section 170 66, 231, 244
Section 172 67, 400, 819
Section 172(1) 49, 101, 234, 479, 480, 482
Section 172(1)(a) 226, 479, 480, 482, 492, 819
Section 172(1)(b) 479, 480, 486, 686, 819
Section 172(1)(b)(i) 480, 495
Section 172(1)(b)(ii) 480, 497, 499
Section 172(2) 120, 480, 489
Section 172(2)(a) 240
Section 173 424, 474, 475, 511, 682
Section 174 67
Section 174(1) 246, 251, 254
Section 174(2) 246, 251, 254, 256, 257, 258
Section 174(3) 198, 253
Section 174(4) 254
Section 174(4)(a) 254
Section 174(4)(b) 254
Section 174(4)(c) 254
Section 174(5) 254
Section 174(6) 198, 254
Section 174(7) 269
Section 174(8) 260
Section 176 260, 261
Section 176(1) 68, 179, 205, 261, 262, 263
Section 176(2) 68, 263
Section 176(3) 68, 266
Section 177 68, 260, 264
Section 177(2) 68
Section 177(3) 264
Section 178 99, 251
Section 178(1) 252
Section 178(1)(a)–( j) 251
Section 179 97, 272, 273, 274, 275, 276
Section 179(1) 276
Section 179(1)(a) 194, 198
Section 179(4) 276
Section 179(5)(a) 273
Section 179(5)(c) 273
Section 179(5)(d) 274
Section 181 642, 723
Sections 181–194 97
Section 181(1)(a) 99
Section 181(1)(e) 99
Section 181(1)(f) 99, 135
Section 181(2) 284, 285, 723
Section 181(3) 285, 290, 723
Section 181(4) 285
Section 181(5) 284, 291, 723
Section 182 172
Section 182(1) 292
Section 182(2) 135, 292
Section 185 291, 641
Section 190 723
Section 190(1) 723
Section 190(1)(a)–(c) 135
Section 190(1)(b) 725
Section 192 285, 690
Section 193(1) 286
Section 193(2) 286
Section 193(3) 286
Section 193(4) 108, 198, 286
Section 193(5)(b)(i) 286
Section 193(5)(b)(ii) 286
Section 193(6) 286
Section 194(1) 287
Section 194(2)(a) 288
Section 194(2)(b) 288
Section 194(3)(a) 288
Section 194(3)(b) 288
Section 195 312, 317, 319, 400
Section 195(3) 172
Section 195(4) 172
Section 196 172
Section 196(2) 285
Section 196(3) 285
Section 197 172
Section 197(1) 182
Section 197(3) 714
Section 199 422
Section 200(1) 456
Section 202(1) 194
Section 203 162
Section 207(1) 194
Section 209 203
Section 209(2) 194, 201, 203
Section 211 27, 364, 365, 370, 372, 373, 376, 394
Section 211(1) 270, 364, 391
Section 212 27, 364, 365, 376, 377, 394
Section 212(1) 270, 377, 378
Section 212(1)(a) 388
Section 212(2) 377, 388
Section 212(2)(a) 98
Section 213 354
Section 214 174, 355
Section 214(1) 351, 352
Section 214(2) 352
Section 215 317, 319, 353, 354
Section 215(1) 353, 362
Section 215(2) 353
Section 215(3) 353
Section 216 317, 319, 354
Section 216(3)(b) 162
Section 217 356, 357, 358, 359, 362
 Section 217(1) 360, 481
Section 217(2) 356, 360
Section 220(2) 285
Section 223 355
Section 224(1) 355
Section 224(2) 355
Section 226 355
Section 227 353
Section 228 386
Section 228(1) 349
Section 228(2) 350
Section 229 386
Section 229(1) 350
Section 229(2) 350
Section 231 484
Section 231(1) 194
Section 231(2) 484
Section 234 29
Section 236 718
Section 237 50, 168, 174
Section 239 135, 161, 285, 288, 309, 414, 416
Section 239(2) 288
Section 239(b)(i) 416
Section 239(b)(ii) 416

Constitution of the Western Cape of 1998

Section 13 315

Constitution Seventeenth Amendment Act 72 of 2013 232, 233, 242, 243

Constitution Sixth Amendment Act 34 of 2001 260

Constitution Twelfth Amendment Act of 2005 334

Correctional Services Act 8 of 1959

Section 65(4)(b)(iv) 580

Criminal Procedure Act 51 of 1977

Section 154(3) 444, 445, 684
Section 286 580
Section 309B 469, 470
Section 309C 469, 470

Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005 334

Customs and Excise Act 91 of 1964

 Section 114 442, 443, 757, 758, 759, 763

Defence Act 44 of 1957

Section 126B(1) 458
Section 126B(4) 466

Determination of Delegates (National Council of Provinces) Act 69 of 1998 147

Diamond Act 56 of 1986

Section 20A 754, 755

Division of Revenue Act (DORA) 352, 353, 354

Section 5(1) 309

Division of Revenue Bill 2013 353, 353, 354

Divorce Act 70 of 1979

Section 12 686, 687

Domestic Violence Act 116 of 1998 231

Draft Constitution Eighteenth Amendment Bill of 2020 771

Draft Expropriation Bill of 2020 764, 765, 772

Drugs and Drug Trafficking Act 140 of 1992 491

Section 4(b) 490, 491, 623, 624
Section 5(b) 490, 624
Section 21(1)(a)(i) 451, 459

Eastern Cape Traditional Leadership and Governance Act 4 of 2005 387

Section 28 387
Section 30 387

Electoral Act 73 of 1998 135, 136, 137, 717, 725, 729, 735
Schedule 1A 131, 134, 733, 735
Schedule 3 127, 315
Section 1 727
Section 6 727, 728
Section 6(1) 728
Section 8 727
Section 8(2)(f) 731
Section 16(3) 725
Section 24B(1) 136
Section 24B(2) 136, 731
Sections 26–31 717
Section 26(b) 717
Section 27 717
 Section 33 137
Section 33(1)(b) 733
Section 33(1)(e) 732, 733
Section 39 728
Section 57A 131
Section 96 724
Section 99 717

Electoral Commission Act 51 of 1996 287, 717, 723

Section 5(1)(e) 724
Section 6 287
Section 15 717
Section 16 717
Section 17 717
Section 18 724

Electoral Laws Amendment Act 34 of 2003 730, 731

Elimination and Prevention of the Re-emergence of Slums Act 6 of 2007 323

Section 16 324

Employment Equity Act 55 of 1998 530, 535

Section 13 535

Executive Ethics Code 215

Section 2.3 294
Section 3 294

Executive Members Ethics Act 82 of 1998 294

Section 2(1) 215, 294
Section 3 216
Section 3(1) 294

Expropriation Act 63 of 1975 766

Section 12 766

Extension of Security of Tenure Act 62 of 1997 (ESTA) 740, 747, 748, 770
Section 5 747
Section 6 747
Section 13 748

Films and Publications Act 65 of 1996

Section 1 673
Section 16(2)(a) 688
Section 22 674
Section 27(1) 440, 441, 673, 674
Financial Management of Parliament Act 10 of 2009 317, 318, 319

Financial Management of the Limpopo Provincial Legislature Bill, 2009 317

Free State Petitions Act 2 of 2008 705

Free State Traditional Leadership and Governance Act 8 of 2005 387

Section 8 387

Gauteng Petitions Act 5 of 2002 705

Gauteng Transport Infrastructure Act 8 of 2001

Section 10(1) 756, 757
Section 10(3) 756, 757

General Law Amendment Act 37 of 1963 571

Glen Grey Act 25 of 1894 8, 13

Group Areas Act 41 of 1950 739, 778

Harmful Business Practices Act 71 of 1988

Section 8(5)(a) 756

Higher Education Act 101 of 1997 835, 836

Section 27(2) 835

Identification Act 68 of 1997 728

Immorality Act 23 of 1957 586–587

Section 16 586, 587

Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 483

Income Tax Act 58 of 1962

Section 83(3) 231

Independent Broadcasting Authority Act 153 of 1993

Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services 494

Independent Commission for the Remuneration of Public Office-bearers Act 92 of 1997

Section 2 266

Independent Communications Authority of South Africa Act 13 of 2000 690

Insolvency Act 24 of 1936 575

Section 39(2) 575
Section 66(3) 575, 576

Intergovernmental Fiscal Relations Act 97 of 1997 352–353

 Section 2 353
Section 5 353
Section 9(1) 352
Section 10(1) 353
Section 10(3) 352

Intergovernmental Relations Framework Act 13 of 2005 (IGRFA) 310

Section 1 312
Section 2 310
Section 4 310
Section 4(a)–(d) 310
Section 6 310
Section 9 310
Section 18 310
Section 24 310
Section 35 311
Section 35(3) 311
Section 39(1)(b) 312
Section 40 312
Section 41 312
Section 42 312
Section 42(3) 312
Section 43 312

Interim Protection of Informal Land Rights Act 31 of 1996 770

Internal Security Act 74 of 1982 571, 666, 705

Section 10 666

Intestate Succession Act 81 of 1987 374, 649

Joint Rules of Parliament 161, 661

Rule 151 169
Rule 220(1) 661
Rule 220(2) 661
Rule 220(3) 661
Rule 220(4) 661

Judges’ Remuneration and Conditions of Employment Act 47 of 2001 266

Section 2(6) 266
Section 3(2) 263
Section 4 260, 263
Section 4(4) 263
Section 8 261
Section 8(a) 179, 204, 261, 262, 263
Section 14 266
Judicial Service Commission Act 9 of 1994 (JSC Act) 68, 251, 264
Section 8 264
Section 14 264
Section 15 264
Section 15(2) 264
Section 17 264
Section 22 264
Section 33 264

KwaNdebele Traditional Authorities Act 8 of 1984 270

KwaZulu Act on the Code of Zulu Law 16 of 1985 650

KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990 270

KwaZulu-Natal Ingonyama Trust Act 3KZ of 1994 351

KwaZulu-Natal Petitions Act 4 of 2003 705

Section 1 705

KwaZulu-Natal Planning and Development Act 6 of 2008

Section 45 341

KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 387

Section 8 387

Labour Relations Act 66 of 1995 (LRA) 417, 473, 703

Section 3(b) 473
Section 69(1) 703
Section 69(2) 703
Section 69(3) 703
Section 151 231

Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act)

Section 23(1) 767, 770

Languages Act of the Union Act 8 of 1925 830

Limpopo Petitions Act 4 of 2003 705

Limpopo Traditional Leadership and Institutions Act 6 of 2005 386

Liquor Act 27 of 1989 621, 622

Section 36(1) 460
Section 160 460

Local Government: Municipal Demarcation Act 27 of 1998 333

Local Government: Municipal Electoral Act 27 of 2000 135

 Section 14 717, 718
Section 17 717, 718

Local Government: Municipal Property Rates Act 6 of 2004 350

Local Government: Municipal Structures Act 117 of 1998 334, 335, 337
Section 1 333
Section 2 333
Section 3 333
Section 7 334
Section 8 335
Section 9 335
Section 10 335
Section 28 117
Section 28(1) 117
Section 28(2) 117

Local Government: Municipal Systems Act 32 of 2000 330, 342

Section 23(1)(c) 344
Section 96 761
Section 118(1) 756, 762
Section 118(3) 760, 761, 762, 763

Local Government Transition Act 209 of 1993 64

Section 16A 178
Section 16A(1) 177

Magistrates Act 90 of 1993 268

Section 3 269
Section 3(1)(a) 269
Sections 10–16 231

Magistrates’ Courts Act 32 of 1944 801

Section 9(1)(b) 268
Section 110(1) 244
Section 110(2) 244

Maintenance Act 99 of 1998 231

Mandating Procedures of Provinces Act 52 of 2008 150, 153

Schedule 1 Section 5 151

Marriage Act 25 of 1961 499, 636

Medicines and Related Substances Control Act 101 of 1965 491, 492
Section 22A(9) 624
Section 22A(10) 623, 624
Mental Health Act 18 of 1973 728
Section 68(4) 465

Mineral and Petroleum Resources Development Act 28 of 2002 764

Money Bills Amendment Procedure and Related Matters Act 9 of 2009 174

Mpumalanga Petitions Act 6 of 2000 705

Mpumalanga Traditional Leadership and Governance Act 3 of 2005 387

Section 9 387

Municipal Finance Management Act 56 of 2003 346, 347

Section 15(a) 347

Municipal Fiscal Powers and Functions Act 12 of 2007 350

Natal Code of Zulu Law Proclamation R151 of 1987 650

National Forests Act 84 of 1998 351

National House of Traditional Leaders Act 22 of 2009 (NHTLA) 98, 365, 366, 377, 388, 389, 390, 392,
394
Section 1 388
Section 2(1) 388
Section 2(2) 390
Section 2(3) 390
Section 3(1) 388
Section 3(2) 389
Section 3(3) 389
Section 3(4) 389
Section 4(7) 388
Section 5(a) 389
Section 5(b) 389
Section 5(c) 390
Section 5(d) 390
Section 5(e) 390
Section 5(f) 390
Section 5(g) 390
Section 8(4) 391
Section 8(6) 391
Section 8(7) 391
Section 9(1) 390
Section 9(2) 390
Section 9(3) 390
Section 9(4) 390
Section 9(9) 391
 Section 9(13) 391
Section 11(1)(a) 392
Section 11(2)(a) 391
Section 11(2)(b) 392
Section 11(2)(c) 392
Section 11(2)(e) 392
Section 21 390

National Prosecuting Authority Act 32 of 1998 (NPA Act) 275, 276, 281, 487
Section 7 278
Section 9 198
Section 12(4) 198
Section 12(6)(a) 278
Section 12(6)(c) 278
Section 12(6)(e) 278
Section 12(8) 279
Section 12(8)(a)(ii) 279
Section 20 273
Section 22(1) 273
Section 22(1)(c) 274
Section 22(2)(a) 273
Section 22(2)(b) 273
Section 32(1)(a) 275
Section 32(1)(b) 275
Section 33(1) 275
Section 33(2) 275
Section 41(1) 275

National States Citizenship Act 26 of 1970 304

National Veld and Forest Fire Act 101 of 1998 351

Native Administration Act 38 of 1927 368

Section 2(7) 368
Section 5(1)(a) 368

Native Development and Trust Land Act 18 of 1936 738

Native Land Act 27 of 1913 369, 737, 738, 775

Native Representative Act 12 of 1936 11

Native Trust and Land Act 18 of 1936 369

Northern Cape Petitions Act 8 of 2009 705

Northern Cape Traditional Leadership and Governance and Houses of Traditional Leaders Act 2 of 2007
387

North West Petitions Act 2 of 2010 705

North West Traditional Leadership and Governance Act 2 of 2005 375, 387
Orange Free State Constitution of 1854 6

Pan South African Language Board Act 59 of 1995 662

Section 3 663
Section 11 663

Political Party Funding Act 6 of 2018 89, 721

Section 3 721
Section 8 721
Section 8(1) 721
Section 8(3) 722
Section 9 721
Section 10 722

Post Office Act 44 of 1958 532

Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (PPI Act) 118
Section 7 121, 489
Section 11 120, 121, 489, 490
Section 27 121, 489

Powers and Privileges of Parliament Act 91 of 1963 119

Section 5 118

Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA) 356

Regulation 4 361
Regulation 6(9) 361
Regulation 7(9) 361
Regulation 9 361
Regulation 9(2) 361
Section 2 360

Prevention and Combatting of Corrupt Activities Act 12 of 2004 294

Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) 324, 746,
820
Section 6 745
Section 6(1) 745
Section 6(3)(a) 745
Section 6(3)(b) 745
Section 6(3)(c) 745
 Section 26(3) 746

Private Security Industry Regulation Act 56 of 2001

Section 1(a) 422
Section 20(1)(a) 422

Proceeds of Crime Act 76 of 1996 756

Prohibition of Mixed Marriages Act 55 of 1949 586

Promotion of Access to Information Act 2 of 2000 (PAIA) 201, 607, 608, 609, 719, 720, 791

Promotion of Administrative Justice Act 3 of 2000 (PAJA) 298, 357, 360, 405, 416, 472, 655, 757
Section 4 472
Section 5 358
Section 7(1) 405

Promotion of Bantu Self-government Act 46 of 1959 13, 369

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) 234, 468, 523,
528, 554, 555, 592, 605, 626, 654, 692, 736
Section 1 555, 556, 654
Section 6 605, 654
Section 10 692, 693
Section 10(1) 694, 695, 696, 697
Section 10(1)(a) 693
Section 10(1)(b) 693
Section 10(1)(c) 693
Section 12 693
Section 13 556
Section 14 472, 530, 557, 558, 559, 560
Section 14(1) 529, 561
Section 14(2) 555, 557, 605
Section 14(2)(a) 557
Section 14(2)(b) 557
Section 14(3) 555, 557, 558, 605

Promotion of National Unity and Reconciliation Act 34 of 1995

Section 20(7) 473

Provincial Tax Regulation Process Act 53 of 2001 350

Provision of Land and Assistance Act 126 of 1993 770

Publications Act 42 of 1974 616

Public Audit Act 25 of 2004 286

Public Finance Management Act 1 of 1999 (PFMA) 353, 354
Section 5 354
Section 6 354
Section 11 354
Section 17 355
Section 18 355
Section 21 355
Section 27(1) 353
Section 27(2) 354
Section 27(3) 354

Public Funding of Represented Political Parties Act 103 of 1997 718

Public Protector Act 23 of 1994 216, 285, 291, 292, 295

Section 6(4)(a) 293
Section 6(4)(a)(i) 293
Section 6(4)(a)(ii) 293
Section 6(4)(a)(iii) 294
Section 6(4)(a)(iv) 294
Section 6(4)(a)(v) 293
Section 6(4)(c)(i) 294
Section 6(5)(a) 293
Section 6(6) 295
Section 6(9) 295
Section 9(1)(a) 285
Section 9(1)(b) 285
Section 11(1) 286

Public Service Act 103 of 1994 267

Section 1 182
Section 8 182

Public Service Act 111 of 1984 268

Rating of State Property Act 79 of 1984 (Rating Act)

Section 3 351
Section 3(3)(a) 351

Recognition of Customary Marriages Act 120 of 1998 (RCMA) 637, 650

Section 1 637
Section 6 638
Section 7(6) 638

Regulation of Gatherings Act 205 of 1993 (Gatherings Act) 702, 705, 706, 709, 710, 736
Section 1(v) 702
Section 1(vi) 702
 Section 3(5)(c) 706
Section 4(1) 706
Section 4(4)(b) 706
Section 4(4)(c) 706
Section 5 706
Section 9(2)(e) 706
Section 11(1) 709, 710
Section 11(2) 709, 710, 711
Section 12(1)(a) 707, 708

Republic of South Africa Constitution Act 32 of 1961 48

Sections 7–15 48
Section 59 48
Section 59(1) 11
Section 108 48
Section 118 48

Republic of South Africa Constitution Act 110 of 1983 14, 20, 183, 191
Section 14 14
Section 15 14
Section 16 14

Restitution of Land Rights Act 22 of 1994 233, 770, 777, 778

Section 22 231
Section 42A 778

Restitution of Land Rights Amendment Act 15 of 2014 778

Riotous Assemblies Act 17 of 1956 705

Riotous Assemblies Amendment Act 19 of 1930 12

Riotous Assemblies and Criminal Law Amendment Act 27 of 1914

Section 1(12) 12

Road Traffic Act 93 of 1996 702

Rules of the National Assembly (NA) 139, 155, 164

Chapter 4 140
Chapter 12 144, 158
Rule 8 140
Rule 9 140
Rule 13 140
Rule 37(1) 139
Rule 37(2) 139
Rule 43 140
Rule 43(1) 140
 Rule 43(2) 140
Rule 44 118
Rule 44(2) 118
Rules 70–74 118
Rules 78–95 155
Rule 96(a) 141
Rule 96(b) 141
Rule 97 141
Rule 98 141
Rule 103 155
Rule 104 155
Rule 115(2) 141
Rule 119 155
Rule 130(1) 155
Rule 138 157
Rule 139 157
Rule 140 157
Rule 154 144
Rule 155 144
Rule 167 157
Rules 187–190 158
Rules 209–213 163
Rule 227 144
Rule 230 164
Rule 234 164
Rules 234–237 163
Rule 235(A)1 164
Rules 238–240 163

Rules of the National Council of Provinces (NCOP) 116

Rule 30 118
Rule 30(b) 118
Rules 83–85 155
Rule 84(1) 155
Rule 84(2) 155
Rule 103 157
Rule 104 113
Rule 110(1) 116
Rule 240–244 157
Rule 243–244 162

Separate Representation of Voters Act 46 of 1951 11, 45

Sexual Offences Act 23 of 1957

Section 20(1)(aA) 444
Sexual Offences and Related Matters Amendment Act 32 of 2007
Section 15 470, 568
Section 16 470, 568
Section 56(2)(b) 568

Social Assistance Act 59 of 1992 326

Section 3(c) 816

South African Police Service Act 68 of 1995 554

Section 17B 294
Section 17D 294
Section 69 677

South African Press Code

Section 1.8 689

South African Republic (Transvaal) Constitution of 1858 7

South African Reserve Bank Act 90 of 1989 355

South African Schools Act 84 of 1996 (SASA) 351, 656, 657, 658, 832
Section 5A(3) 832
Section 7 635
Section 10 432, 433, 630
Section 22 656

Superior Courts Act 10 of 2013 267

Section 4(1) 229
Section 4(1)(b) 230
Section 4(2) 229
Section 4(2)(b) 230
Section 5(1)(b) 230
Section 6 230
Section 6(2) 230
Section 8 267
Section 8(4)(c) 230

Suppression of Communism Act 44 of 1950 571

Supreme Court Act 59 of 1959

Section 10 222
Section 25(1) 267

Terrorism Act 83 of 1967 571, 679

Section 2 571
Section 6 571
Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) 98, 365, 366, 377, 378, 379, 380, 381, 382,
383, 384, 385, 387, 388, 389, 390, 391, 392, 394
Section 1 378, 379, 380, 388
Section 3 382
Section 3(1) 382
Section 3(3) 382
Section 3(4) 382
Section 3(7) 382
Section 4(1) 385
Section 5 382
Section 5(1) 382
Section 7(1)(a) 379
Section 7(1)(b) 379
Section 8 379
Section 8(2) 380
Section 10 380
Section 10(1)(a) 380
Section 10(1)(b) 380
Section 10(1)(c) 380
Section 15 381
Section 16 383
Section 18 383
Section 19(1) 385
Section 20(1) 385
Section 25(1) 385
Section 27(1) 389
Section 27(2) 390
Section 28(1)(b)(i) 389
Section 28(1)(b)(ii) 389
Section 28(1)(b)(iii) 389
Section 28(1)(b)(iv) 389
Section 28(1)(b)(v) 389
Section 28(1)(b)(vi) 389
Section 28(2)(a) 389
Section 28(2)(b) 389
Section 30(b) 389
Section 30(f) 390
Section 33(6) 391
Section 34(1) 390
Section 34(12) 391
Section 39 392
Section 39(1)(a)(i) 392
Section 39(1)(a)(ii) 392
Section 39(1)(b) 392
 Section 47(1) 390
Section 47(1)(b) 390
Section 47(2) 390
Section 63(1) 382

Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) 365, 366, 375, 377, 378,
379, 380, 381, 382, 383, 384, 385, 387, 394
Section 1 366, 378, 379, 388
Section 2 382, 385
Section 2(1) 366, 381
Section 2(2) 382
Section 2(3) 382
Section 2A 382
Section 2B 382
Section 3(1) 382
Section 3(2)(a) 383
Section 3(2)(b) 383
Section 3(2)(c) 383
Section 3(2)(d) 383
Section 3A 383
Section 3B 383
Section 4(1) 384
Section 4(2) 386
Section 4(3)(b) 386
Section 4A 385
Section 4C 385
Section 8 378
Section 9 379
Section 10A 379
Section 11 379
Section 18 391
Section 18(1)(a) 391
Section 18(1)(b) 391
Section 19 381
Section 20 385
Section 28(1) 271
Section 28(3) 382
Section 28(4) 383

Union of South Africa Act, 1909 (the South Africa Act or the 1910 Union Constitution) 5, 9, 10, 11, 45,
46, 48
Section 35 10
Section 137 11, 830
Section 147 10
Section 152 11
Use of Official Languages Act 12 of 2012 661

CHARTERS, CONVENTIONS, COVENANTS AND TREATIES

African Charter on Human and Peoples’ Rights
Article 10 599, 641
Article 17 823
African Charter on the Rights and Welfare of the Child
Article 11(2) and (3) 823
Convention on the Elimination of all forms of Racial Discrimination (CERD)
Article 5(b) 577–578
Convention on the Freedom of Association and Protection of the Right to Organise 87 of 1948 403
Convention on the Right to Organise and Collective Bargaining 98 of 1949 403
Convention on the Rights of the Child
Article 28(a) 823
Declaration of Delhi 78
Declaration of Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities
Article 2 641
Article 2(2) 641
European Convention for the Protection of
Freedom Charter 15, 16
Harare Declaration 17
Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights) 434, 599
International Covenant on Civil and Political Rights (1981) 646
International Covenant on Civil and Political Rights 1996 (ICCPR) 400
Article 19 126
Article 22 641
Article 25 126
Article 27 641, 643, 646
International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR) 400, 782, 795, 809, 811,
812
Article 2(1) 813, 816
Article 13 822
Treaty between the Allied Powers and Poland
Article 7 654
Universal Declaration of Human Rights 1948 (Universal Declaration) 78
Article 26(2) 822

FOREIGN LEGISLATION
CANADA
Charter of Rights and Freedoms
Article 1 434
Section 2(a) 632
Constitution Act (1982) Part 1 434
Indian Act 1970 646
FRANCE
Constitution of the Fifth Republic 217
Declaration of the Rights of Man and Citizen 401
GERMANY
German Basic Law for the Federal Republic of Germany (Constitution) 147, 304
Article 8 702
Article 8(1) 701
Article 21(2) 606
Article 50 147
Article 79(3) 53
KENYA
The Constitution of Kenya, 2010
Item 23 in Schedule 6 246
SPAIN
Constitution of Spain, 1931 401
UNION OF SOVIET SOCIALIST REPUBLICS
Constitution of the Union of Soviet Socialist Republics, 1936 401
TURKEY
Anti-Terror Act 3713 of 1991 654
UNION OF SOVIET SOCIALIST REPUBLICS
Constitution of the Union of Soviet Socialist Republics, 1936 401
UNITED KINGDOM
Colonial Laws Validity Act, 1865 10
Human Rights Act of 1998 603
Statute of Westminster, 1931 10
British or Westminster Constitution 3, 46
UNITED STATES OF AMERICA
Bill of rights 401
Constitution 618
First Amendment 633
analogous ground: A ground of discrimination, such as HIV status, not explicitly mentioned in the Constitution,
but sufficiently similar to the grounds mentioned in the Constitution because it also deals with different
treatment of people who have suffered past discrimination, prejudice or marginalisation because of their
membership of the group.
apartheid: A system of absolute racial segregation and political and economic discrimination applied against
non-European groups in the Republic of South Africa by the white minority. Grand apartheid envisaged that
white South Africans would govern the vast majority of the South African territory while black South Africans
would be provided with independent or semi-independent homelands in which they would be ‘allowed’ to
exercise political rights.
apex court: The highest court of law in a country which usually has the final say on any matter of law. A court
can be an apex court for certain subject matters like constitutional issues only (as is the case in South
Africa) or it can be the apex court for all legal issues (as is the case in the US).
authoritarian system: A system of government that favours a concentration of power in a leader, a political
party or an elite who are not democratically elected by the majority of the people, are not accountable to
them and do not rule in their best interest.
autonomy: The ability to make decisions freely about your life as an individual without being forced to do so by
your family, your community or other cultural or religious institutions.
bicameralism: The legislative system which has two distinct houses of the legislature whose members are
elected or appointed in two distinct ways to serve different interests. The houses are jointly tasked with
fulfilling the various tasks of the legislature, including the passing of legislation which usually requires the
support of a majority of members from both houses of the legislature to become law.
bifurcated state: A state in which different systems of government apply to different people within the same
territory, based on the race, ethnicity, language or other characteristics of the governed.
Bill: A draft law that the legislature is discussing and considering. Once the President duly passes and signs
the Bill, it becomes an Act of the legislature.
blue rights: The collective name for a group of human rights often distinguished (somewhat arbitrarily) from
other types of rights on the basis that they are first generation rights consisting largely of civil and political
rights.
branch of government: The name given in constitutional theory to the three pillars of government usually
distinguished from each other when discussing the separation of powers doctrine. These three pillars are
the legislature, the executive and the judiciary.
burden of proof or justification: The question of which party has to provide evidence to prove or disprove
relevant facts and what standard will be used to decide whether the party has managed to prove or
disprove the relevant set of facts.
case law: The binding legal principles developed by courts when handing down judgments on the interpretation
and application of statutes, common law or customary law.
certification process: The process which required the Constitutional Court to test the final Constitution to
determine whether it complied with the 34 Constitutional Principles contained in the interim Constitution.
checks and balances: The concept is closely associated with the doctrine of separation of powers which
envisages that each of the three branches of government (the legislature, the executive and the judiciary)
will act as a check (or brake) on the exercise of power by the other two branches to prevent the abuse of
power and to ensure accountable government.
citizenship: The status acquired by individual persons formally associated with (or linked to) a state and
consequently who have certain rights and duties in relation to the state. These rights and duties include
the right to live and work in the country and to obtain a passport from the state. A person with citizenship
in a state is called a citizen of the state.
civil and political rights: The collective name for a group of human rights often distinguished (somewhat
arbitrarily) from other types of rights such as social and economic rights on the basis that they are first
generation rights as they emerged early in the development of human rights. This set of rights includes
rights such as the right to vote, freedom of speech and assembly, freedom of religion and the right to
equality.
coalition government: A government formed jointly by the elected representatives of two or more political
parties, usually when none of the parties had obtained a majority of more than 50% of seats in the
legislature. The government then governs according to principles set out in a coalition agreement
concluded by the parties which enter the coalition.
collective accountability: The principle that each member of the executive is accountable for the decisions
and actions of all other members of the executive and should, hence, not publicly criticise the statements
or actions of fellow members of the executive. This principle is based on the assumption that the members
of the executive branch of government act as a team and approve all important decisions of the executive.
colonialism: The establishment, maintenance, acquisition and expansion of colonies in one territory by people
from another territory. It is a process whereby an economically and militarily powerful government claims
the right to govern the people of another territory, imposing its language, values and government structures
on the colony and establishing an unequal, exploitative relationship with that colony.
common law: The set of legal rules and principles not contained in legislation duly passed by the legislature,
but rather inherited from the colonial powers and which are continuously being developed and enforced by
the judiciary.
conscience: The awareness of a moral or ethical aspect to one’s conduct together with the urge to prefer right
over wrong, regardless of whether that awareness stems from religious beliefs or from ethical commitments
not related to religious beliefs at all.
constitutional damages: Where a court finds that a person or institution has infringed the constitutional rights
of an individual and (in the absence of other appropriate remedies) orders the person or institution to pay
a sum of money to the aggrieved party to remedy the constitutional infringement.
constitutional democracy: Also known as a liberal democracy, this is a common form of representative
democracy in which citizens take part in regular, free and fair elections in a competitive political process,
but a constitution sets out the limits of the powers to be exercised by those representatives elected to
represent the people.
contextual analysis: The opposite of considering a legal question in the abstract as if the surrounding
circumstances prevalent in a society are irrelevant. Contextual analysis takes into account the differences
in the economic position as well as the social status of individuals and the way in which the society is
structured to privilege some and disadvantage others.
counter-majoritarianism: The conceptual difficulty associated with the enforcement of the provisions of a
supreme constitution by the judiciary. This difficulty arises because unelected judges without a mandate
 from voters are empowered to thwart the will of the democratically elected legislature and executive by
declaring invalid their actions, thus acting in a counter-majoritarian manner.
customary law: Traditional common rule or practice that has become an intrinsic part of the accepted and
expected conduct in a community, is enforced by that community and can also be changed over time by
that community. In South Africa, customary law usually refers to the laws developed and applied by
indigenous peoples and is contrasted to the common law imposed by colonial rulers.
damages: The sum of money a court orders a person or institution to pay to somebody to compensate for the
financial or emotional harm or ‘damage’ suffered by the aggrieved party because of actions taken by the
person or institution ordered to pay the damages.
delegation of legislative authority: Where a legislature (parliament or provincial legislature) entrusts the
power it originally had to pass primary or subordinate legislation to another body which is then empowered
legally to pass the said legislation despite not originally having been entitled to do so.
developing the common law: A process through which judges, hearing specific cases, continuously revisit the
general principles of the common law and adapt these rules to ensure that they are in line with the general
norms embodied in the Bill of Rights.
dialogic model of the separation of powers: The idea that the tension between the legislature, executive and
judiciary, arising from the separation of powers between them, can be resolved by envisaging the
relationship between these three branches as one in which a structured conversation shapes the
relationship between the branches.
direct discrimination: Where a rule or policy explicitly distinguishes between groups of people to the detriment
of one group, based on either a ground listed in section 9(3) of the Constitution or on a similar analogous
ground.
disputes of interest: Such disputes arise in the labour law context but, unlike other labour disputes, they are
not based on any existing right. Instead, employees or their unions approach the employer to establish a
new right. If the employer does not want to give employees what they want and the matter remains
unresolved, then the employees may exercise their right to strike after following the appropriate procedures.
diversity: Diversity refers to the fact that not all individuals have the same cultures, languages or religious
beliefs, creating a diverse population whose differences must be accommodated without harming others.
divided model of federalism: A model of federalism in which the Constitution strictly divides the subject
matters in respect of which policies and laws may be made by each sphere of government. Each level or
sphere of government, therefore, has its own exclusive powers and there are very few, if any, concurrent or
shared powers.
doctrine of objective invalidity: Also referred to as the doctrine of objective unconstitutionality, this is the
principle that any legislative provision or action which is in conflict with the Constitution is assumed to be
invalid from the moment that the conflict first arose. When a court confirms the unconstitutionality and
hence invalidity of the legislative provision or action, it will automatically be invalid retrogressively from the
moment the conflict arose unless the court orders otherwise.
electoral system: The mechanism through which the number of votes cast by voters for each political party is
translated into the number of seats for each of the parties in the legislature. Different electoral systems
produce different levels of representation for different parties in the legislature.
equitable: A requirement that different institutions, beliefs or practices must be treated fairly, but excluding the
requirement that they must be treated in an identical fashion.
final Constitution: The Constitution finally adopted by the democratically elected Constitutional Assembly in
1996 in terms of which South Africa has been governed since 1997.
first generation rights: See the definition for ‘civil and political rights’.
formal equality: The idea that individuals are born free and equal and that the law should treat people the
same, regardless of their personal circumstances, their history, their social and economic status, and
whether they have been discriminated against in the past or still face discrimination in the present. The
concept explicitly denies the need to take into account the social and economic context or the differences
in power, status and opportunities between individuals or groups of individuals when judging whether the
equality injunction has been breached or not.
good faith: The presumption that a person (in constitutional law often a public official exercising public power)
will act honestly and fairly and not out of spite or in an arbitrary, capricious, dishonest or corrupt manner.
green rights: Also sometimes (somewhat loosely) referred to as third generation rights. These are a set of
rights that emerged recently (towards the end of the twentieth century) and are aimed at protecting society
more broadly. The rights include the right to self-determination, the right to development and the right to a
healthy environment.
guardian of the Constitution: Normally refers to the judiciary whose task it is to interpret and enforce the
Constitution and hence to guard against breaches of the Constitution.
heterogeneous: Made up of different parts. In the context of constitutional law, it refers to the fact that there
are many different people from different races, cultures, languages and social and economic backgrounds
living in South Africa.
horizontal application: Traditionally, a constitution only binds the state and prohibits it from infringing on the
rights of private individuals and institutions (and is said to apply vertically only). The South African
Constitution applies horizontally as, in certain cases, it also binds private individuals and institutions and
prohibits them from infringing on the rights of others.
horizontal dispute: A legal dispute between private parties (in other words, a dispute in which state
institutions are not involved) regarding the scope and content of the duties imposed on such a private
party by any of the rights in the Constitution.
human rights: A set of norms and standards contained in a bill of rights or international human rights treaty
aimed at protecting the human dignity and other fundamental interests of individuals, which binds the
state (and sometimes other parties) and is usually enforced by independent courts or tribunals.
in limine: Literally, ‘at the threshold’, this Latin term refers to a motion made before a trial begins which asks
the court, for example, to rule on a preliminary legal point or on the exclusion of certain evidence.
incidental power: Usually refers to powers that strictly speaking fall outside the matters over which a particular
branch in a specific sphere of government has legislative or executive authority, but which are so closely
connected to the effective performance of its functions that they are considered to be a part of the matters
over which the body has authority.
indigenous populations: Ethnic groups who lived in a territory before the arrival of a colonising power. They are
groups of people whose members share a cultural identity that has been shaped by their geographical
region and by their experiences of oppression.
indirect discrimination: Different treatment either on grounds listed in section 9(3) or on analogous grounds
where the ground for the different treatment is based on a seemingly ‘neutral’ factor (such as a person’s
height or where a person lives), but where the differentiation disproportionately affects a group listed in
section 9(3) or a group analogous to section 9(3).
individual accountability: The principle that 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.
integrated model of federalism: Where some subject matters are allocated exclusively to one level or sphere
of government, but most powers are concurrent or shared and where the subject matters in respect of
 which policies and laws may be made are thus not strictly divided between the different levels or spheres
of government.
interim Constitution: The South African Constitution agreed to by the undemocratic MPNF in 1993, according
to which South Africa was governed between 1994 and 1996 while a final Constitution was being
negotiated. It contained the 34 Constitutional Principles with which the final Constitution had to comply
and prescribed the process for the adoption of the final Constitution.
judicial authority: The term for the power given to judges that allows them to hear a case and to decide in
favour of one party.
judicial independence: The notion that judges should be free from interference by the other branches of
government or private parties and which is achieved by providing institutional safeguards.
judicial review: The process through which judges review the constitutionality of actions taken by the
legislature, executive or private parties and declare such actions invalid if they are in conflict with the
Constitution.
judiciary: One of the three branches of government, staffed by judicial officers and led by the Chief Justice.
jurisdiction: The legal authority of members of the judiciary to hear and determine judicial disputes in a
specific geographical area or on a specific subject matter.
juristic person: An artificial entity through which the law allows a group of natural persons to act as if they
were a single composite individual for certain purposes. This legal fiction does not mean these entities are
human beings, but rather that the law recognises them and allows them to act as natural persons for some
purposes − most commonly lawsuits, property ownership and contracts.
justiciability: Concerns the limits on legal issues over which a court can exercise its judicial authority and thus
refers to factual or legal questions capable of being decided by a court.
justiciable: In constitutional law, a matter is justiciable if courts can apply the Constitution to the factual or
legal dispute and can declare invalid action in conflict with the Constitution.
law-making power: The power of an institution such as a legislature, derived from a constitution, to pass valid
law.
limitation of rights: When law or conduct infringes on one or more of the rights protected in the Bill of Rights,
this is called a limitation of the right. A limitation can be justified in terms of section 36 (and is then
constitutionally valid) or it can be unjustified (and is then unconstitutional).
meaningful engagement: A duty imposed by courts on parties to a dispute that requires them to talk to each
other with a view to solving the dispute.
mere differentiation: The distinctions made by the law between groups of people where these distinctions are
not based on harmful stereotypes or other problematic personal attributes or characteristics (like a
person’s race, sex or sexual orientation), but rather on the basis of historically harmless criteria.
nation state: A political unit consisting of an autonomous state inhabited predominantly by a people sharing a
common history.
National Assembly: The lower House of the National Parliament of South Africa comprising 400 members
elected in a general election through the system of proportional representation to represent the interests of
the whole electorate.
National Council of Provinces: The second House of the National Parliament of South Africa comprising 10
delegates from each province, primarily representing the interests of provinces in the national law-making
process.
natural person: A human being as opposed to a legal entity and who is treated as the bearer of rights and
duties.
negative duties: The legal duties to refrain from acting in a manner in conflict with provisions in the
Constitution, often contrasted with positive duties which require those bound by the Constitution to act in a
 certain manner to give effect to the provisions of the Constitution.
norms: Values or principles that direct proper, or in constitutional law, legally permissible behaviour in a
society.
notional severance: A technique of interpretation that focuses on the words of a legal provision and, rather
than eliminating specific words in the provision, interprets the provision, usually by narrowing its scope and
by indicating circumstances to which the provision is not applicable to ensure it will be interpreted in
conformity with the Constitution.
operational provisions of the Bill of Rights: The set of provisions in the Constitution that indicates whom the
rights in the Bill of Rights binds, who is protected by the provisions of the Bill of Rights and how these
provisions must be applied.
organ of state: Any department of state or administration in the national, provincial or local sphere of
government; or any other functionary or institution that exercises a power or performs a function in terms of
the Constitution or a provincial constitution; or that exercises a public power or performs a public function
in terms of any legislation. However, it does not include a court or a judicial officer.
pardons: Where a person has been convicted of a crime and the President, exercising a Head of State power,
decides to excuse the crime, thus wiping the slate clean and allowing the convicted criminal to live as if
the conviction had never occurred.
Parliament: In South African constitutional law it is the collective name for the National Assembly and the
National Council of Provinces, the two Houses of the national legislature empowered jointly to pass
legislation and to fulfil the other duties of the national legislature.
parliamentary privilege: The rule that Members of Parliament have legal immunity that protects them against
civil or criminal liability for actions done or statements made in the course of their legislative duties.
parliamentary supremacy: This is also called parliamentary sovereignty or legislative supremacy and is a
concept in the constitutional law of some parliamentary democracies. With parliamentary sovereignty, a
legislative body (usually the democratically elected parliament) has absolute sovereignty, meaning it is
supreme to all other government institutions, including the executive and the judiciary. This means that the
legislative body may change or repeal any previous legislation and is not constrained by the constitution in
what legislation it can pass.
participatory democracy: The idea that the public has a right and duty to participate in public affairs,
including discussions about the passing of legislation and the formulation of government policies.
patterns of disadvantage: The deeply entrenched, historically created and continuing social and economic
exclusion experienced by black people, women, gay men and lesbians and other marginalised groups in
society.
plenary law-making power: The complete power, bestowed by the constitution on the relevant body, to pass
laws on a particular topic with no limitations.
pluralism: A condition or a state in which numerous distinct ethnic, religious or cultural groups are present and
in which the beliefs and practices of individuals who belong to such groups are accommodated.
polygynous marriage: A marriage conducted in terms of customary law rules in which a husband is permitted
to be married to more than one wife at the same time.
portfolio committees: The various committees of the National Assembly tasked with processing legislation and
overseeing the implementation of legislation relating to the portfolio of each member of the Cabinet.
positive duties: The legal duties which require those bound by the Constitution to act in a certain manner to
give effect to the provisions of the Constitution, often contrasted with negative duties to refrain from acting
in a manner in conflict with provisions in the Constitution.
primogeniture rule: The rule of inheritance that the first-born male child has the right to inherit to the
exclusion of other children.
principle of legality: The legal ideal that requires all exercises of public power to be rational, non-arbitrary and
authorised by law that is clear, ascertainable and non-retrospective.
principle of rationality: The legal ideal that the exercise of public power must be for a legitimate purpose and
that there should be a rational link between the purpose for which the power is exercised and the action
taken.
principle of subsidiarity: The rule that where legislation gives effect to a constitutional right, a litigant must,
where possible, rely on the provisions of the legislation and cannot rely directly on the right concerned.
prior restraints: Judicial suppression of material before it can be published or broadcast on the grounds that it
is libellous or harmful.
proportional representation: The principle of electoral law that there should be a direct correlation between
the percentage of votes cast for a specific political party and the percentage of seats allocated to that
party in the legislature.
proportionality: A legal principle used to decide how the right balance should be struck between conflicting
interests to accommodate the various interests optimally, usually in a fair and just manner. In limitation
analysis this means, broadly speaking, that the interests of the state and of society must be weighed
against the interests of those whose rights are being infringed and must be done in a manner that is
acceptable in an open and democratic society.
prosecuting authority: The body that makes decisions about who to prosecute and who not to prosecute for
the commission of an alleged offence and is responsible for such prosecutions.
public administration: The collective name for the group of individuals employed by the state to implement
government policies and programmes, including employees of all organs of state.
public service: The collective name for those persons who work for the national and provincial government
departments.
pure proportional representation electoral system: The electoral system in which voters vote for political
parties and not individual candidates and in which each party is allocated seats in the legislature in direct
proportion to the percentage of votes cast for that party in the election.
quasi-federal system: A system in which the power to pass and implement legislation is distributed between
the national government and provincial governments but in which the power of provincial governments is
limited.
rational connection: Identifying the purpose to be achieved by a legal provision on the one hand and the
nature of the legal provision seeking to achieve that purpose on the other, and asking whether there is a
rational link between the two.
rationality: A legal test that is not aimed at enquiring into the wisdom or reasonableness of the impugned
legal provision, but rather asks, first, whether the legal provision aims to achieve a legitimate government
purpose and, second, whether there is a rational relationship between the legal provision and the purpose
sought to be achieved by it.
reading down: The principle of legal interpretation which requires that ordinary legislation is interpreted in line
with the spirit, purport and objects of the Bill of Rights if the words are reasonably capable of such an
interpretation or are not unduly strained.
reading in conformity: The principle of legal interpretation requiring that the courts must prefer interpretations
that fall within the boundaries of the Bill of Rights over those that do not, provided that such an
interpretation can be reasonably ascribed to the provision.
reasonable accommodation: The need of both private and public institutions to take reasonable steps – within
what is financially affordable and practically possible – to accommodate the practices, beliefs and ways of
living of diverse groups of people to ensure their full and equal participation in society.
red rights: Also referred to as second generation rights and usually thought to include social and economic
rights.
regular intervention: The power of the executive at national or provincial level to intervene in the affairs of the
province or municipality respectively when a province or municipality cannot or does not fulfil an executive
obligation in terms of the Constitution or legislation.
reparation: Making amends for past injustice by providing those disadvantaged by past unjust acts or laws
with opportunities, benefits and rewards to compensate them for the loss incurred by them because of the
unjust actions of others in the past.
representative democracy: The notion that the voters are represented by elected representatives serving in
legislatures and the executive.
retrospective invalidation of legislation: Where, because of the doctrine of objective invalidity, legislation is
declared invalid and renders the legislation invalid from the moment the clash with the Constitution arose.
rule of law: An evolving constitutional principle enforceable by courts and closely related to the principle of
legality and the rechtsstaat which, at a minimum, requires the legislature and the executive in every sphere
only to exercise power and perform functions if authorised to do so by law and then only in a rational
manner.
rule of stare decisis: The basic rule applicable in common law jurisdictions that a court is bound by the legal
precedent established by court judgments of a court at the same or higher level of authority.
second generation rights: Refer to rights which were developed after the Second World War, usually social and
economic rights.
separation of powers: The principle that there must be some separation of function and, in some cases,
personnel of the three branches of government.
severance: The remedy which allows a court to delete those words or phrases from the provision which renders
the provision unconstitutional to fix the unconstitutionality of a legal provision.
social and economic rights (also socio-economic rights): Also generally referred to as second generation
rights, the set of rights that ensures that the basic social and economic needs of individuals are met.
spirit, purport and objects of Bill of Rights: The human rights-based norms and values that are derived from
the specific substantive provisions of the Bill of Rights.
standing: The right of either an individual or an organisation to bring a case to a specific court and to have
that case heard in that court.
state: An organised political community occupying a certain territory and whose members live under the
authority of a constitution. The state is therefore a far broader concept than the government.
statutes: Legislation passed by the duly authorised legislature on a particular topic.
strict party discipline: The principle that elected representatives of a political party are required to obey and
follow the decisions made by that political party on a specific policy or legal issue.
structural interdict: A remedy handed down by a court ordering the government to take certain steps and to
report back to the court at regular intervals about the steps taken to comply with the Constitution.
substantive provisions of the Bill of Rights: The provisions relating to the protection of specific rights.
suspension of an order of invalidity: A remedy in which the court, after declaring a legal provision
constitutionally invalid, suspends that order, allowing the provision to remain in operation, usually for a set
period of time to allow the legislature to fix the invalidity of the provision.
teleological interpretation: An interpretative method that asks what the purpose of a specific provision is –
why was it included in the Constitution and formulated in the way that it was – to assist with determining
the exact meaning of that provision.
tenure: The right to keep a job for life or for a fixed period of time.
third generation rights: See the definition of ‘green rights’.
ubi ius ubi remedium: The notion that when a person’s right is violated, the victim will have an equitable
remedy under law.
values: Important and lasting beliefs or ideals contained in a constitution and/or shared by the members of a
culture about what is good or bad and desirable or undesirable.
vertical dispute: A legal dispute between the state and an individual.
vote of no confidence: When the majority of members of a legislature, having decided to stop supporting the
government of the day, decide to unseat that government by supporting a vote to that effect.
Westminster system: Also called a parliamentary system, this system of government is based on the British
model in which the members of the executive branch (usually the Prime Minister and his or her Cabinet
Ministers) are appointed from among the Members of Parliament and obtain their democratic legitimacy
from the Parliament. They are members of, as well as accountable to, that body, meaning that the
executive and legislative branches are intertwined.
A
affirmative action 532–544, 592 see also redress measures
affirmative state duties 28, 29
African Christian Democratic Party (ACDP)
1994 election 23
African Court of Human and Peoples’ Rights 133
African government 304, 305 see also chief
African National Congress (ANC) see also history, South Africa
Constitutional Committee 21
dominant party democracy 92
electoral dominance 37, 38
liberation movement 14, 17
1994 election 23
African Union 17 see also Organisation of African Unity (OAU)
Afrikaans
medium education, history 829–831
medium public schools 655
all-at once approach 452, 453 see also limitation
amici curiae in socio-economic rights litigation 791, 792 see also socio-economic rights
analogous ground 528 see also equality
annual budget 353–355 see also fiscal powers
apartheid, legacy and racial segregation 5, 11–14, 42, 48, 49, 220–225, 737, 783
Appellate Division of the Supreme Court 223 see also Supreme Court of Appeal
assembly see freedom of assembly
associated rights 598
association see freedom of association
Auditor General
appointing 198
Chapter 9 institution 284, 300
independent 284–291, 300
report to National Assembly 300
role 99, 283, 284, 300
authoritarian race-based autocracy 5
autonomy 595 see also freedom of association
Azanian People’s Organisation (AZAPO)
as liberation movement 15

B
balancing and proportionality 449–456 see also limitations
balancing and proportionality proper 461–468 see also limitations
Bantu Education 823, 824 see also education
Bantu peoples 365
Bantustans 775, 776 see also land reform
basic education 827–829 see also education; socio-economic rights
bicameralism 107, 127, 145, 179 see also Parliament
bifurcated state 9, 11, 12, 38, 39, 48
Bill of Rights, South Africa 397–428
abused by private persons 411
adjudication 399
application stage 399, 402–426
bound to respect 409–411
child 403
citizen 403
claim, entitled to 402–409
classical liberal 28
common law 426–428
differing interpretations 424, 425
dignity, value in 514, 515
direct application 410, 428
direct horizontal application 417–419
direct vertical application 411–414
enforcing rights of 18, 406–409
‘everyone’ 403
Freedom Charter 16
guardians 26
horizontal application 29, 428
horizontal disputes 410, 417, 418
human rights culture 15
indirect application 419–421, 428
indirect application to common law and customary law 423–428
indirect application to legislation 421–423
juristic persons 398, 403–406
limitations 430, 431, 433–438, 445–458, 471–476
litigation 399, 400, 401, 428
natural persons 402
operational provisions 399, 400
‘organs of state’ 414–417
principle of avoidance or subsidiarity 311, 420, 528
 procedural (application) stage 399
promotion of 233
reading down or reading in 410
reading in conformity 421, 422
remedy stage 399
rights classification 400, 401
special limitations 471–473
standing provisions 406–409
structure 399
substantive stage 399
vertical application 428
vertical dispute 410
worker 403
Black Consciousness Movement
as liberation movement 15
Black Wednesday 666 see also freedom of expression
bodily and psychological integrity 582–586
Botha, PW 14
bottom-up approach 338, 339 see also municipalities
branches of government 104
Britain
constitution 46
British colonies 46
British Commonwealth 46
British Parliament 5
budgetary process 353–355

C
Cabinet of the Republic of South Africa
accountability 217, 218
appointment 210–212
impeachment of President and Cabinet 217
leaders of majority party 217
motion of no confidence 218
national executive 217
powers 213–216, 218
removal 210–212
resignation 217
vote of no confidence 217
Canadian Supreme Court 33, 475
cannabis 590, 591
Cape Colony 8
Cape Parliament 8
censorship 666, 667 see also freedom of expression
central bank see Reserve Bank
Chapter 9 institutions see also separation of powers
independence of 284–291
institutions under Chapter 9 of the Constitution 283, 284
Public Protector, special case 291–300
role of 283, 284
Chaskalson, P. 64, 468
checks and balances, principle of separation of powers doctrine 57, 97, 182 see also separation of powers
doctrine
chief see traditional leader(s)
Chief Justice 267, 268
appointment 281
head of judiciary 229, 267, 268
Johannesburg seat 230
child 403 see also Bill of Rights
Children’s Court 231
church’s core activities 628 see also freedom of religion
citizen 403 see also Bill of Rights
CODESA see Congress for a Democratic South Africa
colonialism 5, 42, 737 see also history, South Africa
colonial rulers 38 see also history, South Africa
Commission for Gender Equality
appointing 198
Chapter 9 institution 284, 300
independent 284–291, 300
role 283, 284, 300
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
Chapter 9 institution 283
independent 284–291
role 284
Commission of Enquiry Regarding the Transformation and Reform of the Public Service 195 see also
Presidential Review Commission
common law, development 426 see also Bill of Rights; customary law
Congress for a Democratic South Africa (CODESA) 18, 19
Constitution
amending founding provisions of a 53
apex 26
certification of text of final Constitution 21, 24, 25, 39
exclusive jurisdiction on 280
factual disputes 236, 237
final say on provisions 25
founding document 3, 4
interpretation of the Constitution 4, 5, 32, 33, 34
judges of 21
 jurisdiction 233–242
living document 4
open-ended language 4
points of law 236, 237
transforming the legal system 245
Constitutional Court
court of appeal considering constitutional and other matters of legal doctrine 280
extension of jurisdiction in 2013 233–242
final court 229
hierarchal structure 229
specialist court until August 2013 233
transforming legal system 245
constitutional damages 503–506
constitutional democracy 5, 85, 94–96 see also democracy
Constitutional Guidelines 16, 17
constitutional history, South Africa 5–38, 46
constitutionalism see also constitutionalism, South Africa
concept of 42, 43, 95
descriptively understood 42–45
disregard for substantive justice 45
norms and values of prescriptive 45
prescriptively understood 45, 46
constitutionalism, South Africa
rule of law, principle of respect for 75
South Africa, overview 46–49
unique nature of South African 43, 44
constitutional law, South Africa based on separation of powers 106
constitutional matters 233 see also non-constitutional matters
Constitutional Principles (34)
as described by the Constitutional Court 21, 22
certification by the Constitutional Court
co-operative government and the co-ordination of intergovernmental relations 306–312
principles of co-operative government 306–308
structure of government 305, 306
subsidiarity 311
teleologically application 25
constitutional remedies 477–512
breaches 480
declaration of invalidity 482–494
defined 477, 478
direct horizontal application of the Bill of Rights 479, 480
direct vertical application of the Bill of Rights 479, 480
function 478
indirect vertical and horizontal application of the Bill of Rights 479, 480
 interdicts 480, 508–512
kinds of 479
limiting retrospective effect of an order of invalidity 495–497
meaningful engagement 480, 501, 502
nature of 478, 479
suspension of an order of invalidity 497–500
constitutional supremacy 49–52, 55
critique of 55
constitutional system 45, 52–55
democratic self-government 45
human rights 45
judiciary 45
rule of law 45
separation of powers 45
contextual analysis 521
co-operative federalism 54, 55 see also constitutionalism
co-operative government 306–312
co-ordination of intergovernmental relations 308–312
principles 306–308
counter-majoritarian dilemma, South Africa 69–75 see also judiciary; separation of powers
courts, South Africa see also Constitutional Court; High Court; judges; Magistrates’ Courts; Supreme Court of
Appeal
constitutional jurisdiction 232
declaration of invalidity any law or conduct 482–485
hierarchal structure 229
interpret and enforce the Constitution 227, 228
notional severance 493, 494
order, state failing court 511
reading down 485
reading in 487–492
roll in constitutional democracy 225–228
severance 492, 493
cultural communities 639–650 see also religious communities
clash between rights 645
cultural liberties, international protection 640–642
internal modifiers 644–650
pluralism 639
scope and content in the Constitution 642–644
customary law
applied to black people colonial times 38
Bill of Rights 233, 234, 426–428
content of 373, 374
developing common or 233, 234, 426–428
judicial system democratic era 224, 225, 372–377
 judicial system pre-democratic era 223, 367–370
normative arrangements 366
pre-Union 7
reading down 234
women’s rights 372
customary principles 638

D
dagga see cannabis
damages 503 see also constitutional damages
death penalty 581, 582
Declaration of Intent 18 see also Congress for a Democratic South Africa
declaration of invalidity see also constitutional remedies
law or conduct inconsistent with the Constitution 482–502
notional severance 493, 494
reading down 485–487
reading in 487–492
retrospective invalidation of legislation 495–497
severance 492, 493
declaration of rights 506–508
decolonisation 22, 23, 330–333 see also local government; street renaming
De Klerk, FW 14
delegation of legislative authority 204
De Lille, Patricia 118–120
democracy
conceptions of 85–95
constitutional 5, 85, 94–96
description of 85
direct 85–88, 96
elected representatives of a 96
forms of 84–96
Greek words ‘demos’ and ‘kratos’ 84
limitations of the system of 92
meaning of word 84, 85
one-party 35, 225
overlapping forms of 96
participatory 85, 92–94, 96, 502, 503
post-apartheid 85–95
representative 85, 88–92, 96
struggle for liberation, South Africa 84
democratic constitutional South African dispensation within system of separation of powers 99–104 see also
separation of powers
Democratic Party (DA)
1994 election 23
democratic self-government 45
‘demos’ (citizenry) 84, 85 see also democracy
demonstration see freedom of demonstration
Deputy Chief Justice
appointment 281
role 229
Deputy National Directors of Public Prosecutions 273
Deputy President of the Republic of South Africa see also President
appointment 210–212
as acting President 190
national executive 217
powers 213–217
removal 210–212
role 190, 217
dialogic model of separation of powers 102–104
Dicey, AV 75, 76 see also rule of law
Diceyean conception of the rule of law 75, 76
differentiation 523, 524
dignity
agency respected 566, 567
Bill of Rights 514–517
enforceable right 562, 563
family life 565, 566
right 564, 565
unfair discrimination 567–569
value of 514–517, 564, 565
direct democracy 85–88, 96 see also democracy
direct horizontal application of the Bill of Rights 479, 480
direct vertical application of the Bill of Rights 479, 480
Directors of Public Prosecutions (DPP) 273
discrimination see also unfair discrimination
before 1994 38
differentiation 546–550
direct 549
hidden forms of 550, 551
indirect 549
mere differentiation 523, 524
non-statutory imposed 554, 555
on the basis of language 654
reasonable accommodation 558, 560
under PEPUDA 555
unfair 545, 551–554, 592
districts
forty-four 303
diversity, South Africa 598
divided model of federalism 303 see also integrated model of federalism
doctrine of objective invalidity 482, 495
doctrine of separation of powers see separation of powers
dominant party democracy 92 see also ANC; representative democracy
Domestic Violence Courts 231

E
Economic Freedom Fighters (EFF) 115, 116, 120
education see also socio-economic rights
Bantu Education 823, 824
basic education 822–829
immediately realisable socio-economic right 821–842
Language in Education Policy 832, 833
language of one’s choice 654–660, 829–836
tertiary education, free 837–841
elections, free, fair and regular 127, 722–726 see also political parties
Electoral Act, remedying the defects of 134 see also independent candidates
Electoral Commission
appointing 198
Chapter 9 institution 284, 300
Defect in Electoral Act 134
independent 135, 284–291, 300
report to National Assembly 300
role 99, 284, 300
vote, role of 135–138
electoral system 108, 187
electoral term 183
English common law tradition 75 see also rule of law
equality see also social rights
affirmative action 532–544
analogous grounds 528
concept of 28
differentiation 523, 524, 530
discrimination 523, 524
formal 519–523
freedom 570–586
human dignity 524–527, 562–569
legal tests apply in an equality complaint 527–530
mere-discrimination 524, 528, 530–532
non-discrimination 524
PEPUDA 528, 529
principle of subsidiarity 528
privacy 586–591
 substantive 517–519, 522, 523
unfair discrimination 545–561
ethnic nationalism 13
European Court of Human Rights 132, 133
European Union 47
‘everyone’ 403, 404 see also Bill of Rights
executive 65, 66, 182 see also national executive; President
expropriation of property 763–774 see also land reform; property
compensation 765–770
description 763–765
without compensation 770–774

F
Facebook 670
final Constitution 20 see also Constitution
financial affairs see fiscal powers
first peoples see Khoi-San
fiscal powers 348–362 see also local, national, provincial spheres of government
budgetary process 353–355
central bank see Reserve Bank
condonation permissible 357, 358
distribution of revenue 351–353
power to collect and spend public funds 348–351
procurement 356–361
Reserve Bank 355, 356
floor-crossing, controversial constitutional amendment 91
founding document of a nation 3, 4 see also constitution
Founding Values and the Bill of Rights 198
freedom
definitive right 570
general right 570
integrity 582–586
negative definition 574, 575
punishment 579–582
right to 572–574
substantive and procedural aspects 575–577
termination of pregnancy 585, 586
violence 577–579
Freedom Charter 15, 16
Freedom Front (FF)
1994 election 23
freedom of assembly 697–703 see also freedom of demonstration; pickets; petitions
freedom of association 595–613
balancing rights 611–613
 communal nature of people 595–598
competing rights 611–613
excluding others justifiably 613
indispensable where a group holds dissident beliefs 602, 603
justifiably exclude others 613
not to associate 599–601
right to protest and 604
scope and content of section 18 of the Constitution 599–604
societal interests limiting 605–610
freedom of demonstration 697, 702, 703
freedom of expression 666–696
freedom of other media 675–690
freedom of petition 697–699, 705
freedom of picket 697–699, 703, 704
freedom of religion and practices
church’s core activities and other activities, drawing the line 628
distribution of religious beliefs, South Africa 615
freedom to practice beliefs 614–618, 621, 622
reasonable accommodation 629
religious marriages 636–638
religion or not 624, 625
right not to believe 632
scope and content in the Constitution 618–628
sectarian sphere of society 617, 618
secular sphere of society 617, 618
state and 633–636
traditional marriages 636–638
freedom of the press 675–690 see also police
Frontline States 17

G
gatherings see also Regulation of Gatherings Act 205 of 1993
liability for damage during 709–711
Gender Commission see Commission for Gender Equality
general affairs 14 see also tricameral parliament
General Assembly of the United Nations 17
German Bundesrat 146, 147
golden handshake 279, 280
government
acts and is it limited by a written constitution 42
formed by majority party 182
horizontal power 302
three branches of, South Africa 104
grand narrative as interpretative tool 34
Growth and Redistribution Policy (GEAR) 785

H
Harare Declaration 17
hate speech 690–697
heterogeneous society, South Africa 594
High Courts of South Africa
declare invalid provisions 244, 280
divisions 230, 231
Eastern Cape Division Grahamstown 230
Free State Division Bloemfontein 230
Gauteng Division Pretoria 230
hierarchy 66
jurisdiction 230, 244
KwaZulu-Natal Division Pietermaritzburg 230
Limpopo Division Polokwane 230
Mpumalanga Division Nelspruit 230
Northern Cape Division Kimberley 231
North-West Division Mahikeng 231
referral to Constitutional Court 244, 280
streamlined in 2013 230, 231
superior courts 233
Western Cape Division Cape Town 231
historical self-consciousness 29, 30
history, South Africa
African government before colonial occupation 304, 305
chiefs and chiefdoms 7
CODESA 18, 19
colonial conquest 5–9
constitutionalism, overview South Africa 46–49
discrimination during colonial and apartheid periods 517, 518
dispossession of land during colonial and apartheid periods 737–740
diversity 594
divided and unequal during apartheid period 783
final Constitution 20, 23–26
first democratic election 15–18
freedom of expression during apartheid period 666
interim Constitution 20
judiciary under apartheid 220–225
Mandela, Nelson, negotiations with 17
National Party (NP) 11–14
political 5–14
pre-Union 6–9
racial segregation 11–14
 Republic of South Africa 1961 11
South African Constitution of 1996 26–31
‘three tiers of authority’ 304, 305
traditional leadership apartheid period 367–370
traditional leadership colonial period 367–370
traditional leadership during transitional period 370–371
traditional leadership pre-colonial period 366, 367
transitional period 15–18
two-stage transition 19–23
Union of South Africa 9–14
white domination 783, 784
Hoexter Commission of Inquiry 1983 268 see also magistrates’ courts
horizontal application of Bill of Rights 29
Houses of Parliament
bicameral parliament 1996 Constitution 107, 127, 145, 180
tricameral parliament 1983 Constitution 14
human dignity 524–569
human rights 45
Human Rights Commission, South Africa see South African Human Rights Commission

I
impeachment 185, 186, 217, 218
impugned law or conduct 443–445 see also limitations
independent candidates 131–134
independent judiciary 45
indigenous governance structures 8, 9
indigenous peoples see Khoi-San
indirect vertical and horizontal application of the Bill of Rights 479, 480
inegalitarian South African society 35
inferior specialist courts 231 see also superior specialist courts
Children’s Court 231
Domestic Violence Courts 231
Maintenance Courts 231
Inkatha Freedom Party (IFP)
1994 election 23
integrated model of federalism 303 see also quasi-federal system
integrity-protecting, exclusionary rule 603 see also freedom association
interdict 480, 508–512, 689
structural interdict 508–512
interim Constitution 20 see also Constitution
invalidity see doctrine of objective invalidity

J
Joint Tagging Mechanism 180 see also Parliament
judges
apartheid 220–225, 245
appointment 250–259
Chief Justice 267, 268
complaints against 265, 266
composition, pre-democratic era 223
criteria for appointment 255
financial security 286
impartiality 245–250
independence, pre-1994 222
judicial oath of office 260
Judicial Service Commission 251–259
limitation of civil liability 266, 267
oath of office 260
parliamentary supremacy 222
political influence 222
tenure 260–264
vetting old-order 246
judicial authority 269
judicial oath of office 260 see also judges
‘judicial overreach’ 227, 228
Judicial Service Commission (JSC)
Advising President 264
appointment of judges 251–256
Chapter 9 institution 99
complaints against judges 265, 266
composition 251, 281
criteria for appointment of judiciary 253
provision for newly established 21
role 251–259
transform judiciary 256–259
vacancies in a court 252
judiciary, South Africa see also separation of powers
apartheid 220–225, 281
‘bastion of legal order’ 225
composition in 2019 257
constitutional dispensation 229–244
counter-majoritarian dilemma 69–75
courts 225–228
customary law 223–225
enforcing provisions of the Constitution 104
esteem and respect of society 227
independence and impartial 245–250, 280
 interpreting and enforcing Constitution 281
power to check President and Cabinet 218
separation in personnel as bedrock principle 66–69
separation of powers system 280
structure, 1996 Constitution 229–231
unique 104
jurisdiction
constitutional issues 232
non-constitutional matters 232
juristic persons 403 see also Bill of Rights
justification see also limitation
burden of 468–471
enquiry 453–455

K
Kenyan model 246 see also judges
Khoi-San 5, 38, 365, 380 see also history
‘kratos’ (rule) 84 see also democracy

L
Labour Court
employers and employees 231
‘Lagden Commission’ see Native Affairs Commission
land, dispossession of 737–742 see also land reform
Land Claims Court
land claims 231
land reform 774–780 see also redistribution of land; restitution of land
Language in Education Policy 832, 833
language of one’s choice 654–660, 829–836
language rights
competing rights 652, 653
education 654, 655–660
official languages of South Africa 660–662
Pan South African Language Board 662, 663
parity of esteem 651, 652
unfairly discriminated 654
laws, conflicting national, provincial and municipal 344
law of general application 446–449 see also limitations
Law of Lagos 77, 78 see also rule of law
legal personality of juristic persons 406 see also Bill of Rights
legislature, South Africa 60–65, 68, 69, 104 see also separation of powers
electoral system weaken power 63, 64
‘level’ of government 302 see also ‘spheres’ of government
liberation movements 14
limitations of the Bill of Rights see also Bill of Rights
all-at once approach 452, 453
alternative means of 459–461
analysis 442, 443, 445
balancing and proportionality 449–456
balancing and proportionality proper 461–468
balancing as an adjudicative strategy 437, 438
burden of justification 468–471
constitutional provisions limitations 473–475
criticisms of the balancing process 455, 456
first stage of limitation analysis 438, 439
general limitation clause, evolution 433–438
impugned law or conduct 443–445
infringing or violating the right 438, 439
internal modifiers 441, 442
justification enquiry, steps 453–455
law of general application 446–449
‘less restrictive alternative means’ 459–461
limiting measure’s side of the balancing scales 463, 464
practical purpose 442, 443
protected right 439–443
purpose of 456–458
rational connection requirement 458, 459
reasonable accommodation 466–468
‘reasonable and justifiable’ requirements 449–456
rights in the Bill of Rights 430, 431
rights side of the balancing scales 462, 463
sequential and structured approach 451
special limitations 471–473
specific rights and the limitation clause 472, 473
substantive, value-based approach to the first stage of the limitation analysis 439
threshold questions 454, 455
two-stage enquiry 431–433
litigants 477–482 see also constitutional remedies
litigation, Bill of Rights 399, 400–401, 415 see also Bill of Rights
‘living customary law’ see customary law
local government 329–348 see also municipalities
objectives 329–333
structure 333–335
supervision of 344–348
Locke, John 58, 59 see also separation of powers
lower courts 268–270 see also magistrates courts; traditional courts
independence under interim Constitution 268
 independence under the 1996 Constitution 269, 270
traditional courts 270–272
Lugard, Frederick 393

M
Magistrates Commission 269
magistrates’ courts, South Africa
administration of justice 231
before 1993 268
hierarchy 66, 229
Hoexter Commission of Inquiry 268
independence under 1996 Constitution 269, 281
judicial authority 269
jurisdiction 244
Magistrates Commission role 269, 270
Maintenance Courts 231
Mandela, Nelson see also President
capacity of the Presidency 195
Presidential Review Commission 195
release of 14
secret negotiations with 17
signing of final version of 1996 Constitution 25
marriages
religious 636–638
traditional marriages 636–638
meaningful engagement 501–503
media see freedom of other media
Members of Parliament (MPs)
duty of 109
personal matters 117
power over elected members by their party, reasons 110–113
powers and privileges 116–123, 180
mere differentiation 524, 530–532
metropolitan councils
eight councils 303
Minister of Performance and Evaluation 196 see also National Planning Commission
Montesquieu, Charles Baron de 58 see also separation of powers
motion of no confidence 218
multiculturalism 29
Multi-Party Negotiating Process (MPNP) 19
multi-party system of democratic government 127
multisphere government 302, 303
municipalities see also local government
assigned powers 341, 342
 bottom-up approach 338, 339
boundaries, determined by independent authority 334
category A 362
category B 362
category C 362
conflicting laws 344
horizontal division of power 361
incidental powers 342, 343
powers 336–344, 362
quasi-federal system of government 361
subject matter, determine 343

N
Natal Indian Congress
as liberation movement 15
National Assembly (NA), South Africa see also National Council of Provinces (NCOP); Parliament
bicameralism 107, 127, 145, 180
composition of 127, 128
constitutionally and politically dominant House 107
democratic link between voters and legislature 108
directly elected House of Parliament 179
disadvantages of party proportional representative system 130, 131
dissolution of 139, 140
duration of 139, 140
election of President 183, 184, 217
electoral system 108
electoral term 183
eligibility for election to 138, 139
five years 139
fixed number of (400) four hundred 127
functioning of 140–145
house in Parliament 107–109
impeachment of President and Cabinet 217
independent candidates 131–134
joint rules and orders with National Council of Provinces 113
members 180, 181
national legislative authority in Parliament 62, 63, 100
openness an transparency 115–116
party proportional representation electoral system 128–131, 179
powers and function 140–145, 184, 185, 217
power to determine and control own internal arrangements 113, 114
public involvement in 123–127
remove of President 184–188
right to vote 135–138
 sittings 139, 140
Speaker role 143, 144
vote of no confidence 217
voters, role in law-making process 126
national common voters’ roll 127
National Council of Provinces (NCOP) see also National Assembly; Parliament
bicameralism 107, 127, 145, 180
committees 153, 154
composition and functioning 145–152
democratic link between voters 108
functioning 145–152
German Bundesrat, resembles 146, 147
house of Parliament 107
indirectly selected House of Parliament 179
influences on the operation of NCOP 149
internal arrangements 153, 154
joint rules and orders with National Assembly 113
national legislative authority 62
procedures 153, 154
represents interests of provinces 179
strict party discipline 151, 152
National Development Plan (NDP) 784
National Director of Public Prosecutions (NDPP) 207, 208, 272–278, 281
national executive
comprised of 217
Deputy President 180, 217
members of the Cabinet 181, 182, 217
members of the leaders of the majority party in the NA 181, 182, 217
President as head of the National Executive 65, 181, 217
national government see also local government; provincial government
composition of 303
conflicting laws 344
conflict with provincial government 325–328
financial power 362
horizontal division of power 361
integrated model of federalism 303
quasi-federal system of government 303, 361
spheres of government 303
National House of Traditional Leaders National House of Traditional Leaders 388–395
Chairperson 390, 391
composition 388, 389
Deputy-chairperson 390, 391
dissolution 390
establishment 388, 389
 meetings and decisions 391
members, qualification and disqualification 389, 390
powers and duties 98, 391–393
term of office 390
National Intelligence Agency (NIA) 201
national legislature 106 see also Parliament; separation of powers
National Party (NP)
1948 election 11, 48
1994 election 23
National Planning Commission 196 see also Minister of Performance and Evaluation
National Prosecuting Authority (NPA) 97, 272–278, 281 see also separation of powers
national spheres 325–329
resolution of conflict with provincial spheres 325–328
Native Affairs Commission 8
Natives Land Act of 1913 737 see also property
native reserves see Bantustans; homelands
natural persons 402 see also Bill of Rights
New Nation Movement (NPC) v President of South Africa 131–134
Non-aligned Movement (NAM) 17
non-constitutional matters 233–235 see also constitutional matters
notional severance 493, 494

O
official languages, South Africa 11, 660–662
one-party dominant democracy 35, 37, 38 see also African National Congress (ANC)
opportunity-depriving, as exclusionary rule 603 see also freedom of association
order of invalidity
limiting 495–497
suspension 497–500
Organisation of African Unity (OAU) 17 see also African Union
own affairs 14 see also tricameral parliament
ownership, inherently unrestricted right 743–745, 779, 780 see also property

P
Pan Africanist Congress (PAC)
as liberation movement 14
1994 election 23
Pan South African Language Board 662, 663
parliamentary government 47
parliamentary privileges and immunities 62
parliamentary sovereignty
apartheid 220–225
Parliament see also National Assembly (NA); National Council of Provinces (NCOP)
 accountability of executives as function 155–161
assigning of power to other legislative spheres of authority as function 176–180
bicameral legislature 107, 127, 179
Cape Town 108
citizens as members of political parties 110
delegation of legislative authority 176–179, 204
embodiment of dreams and aspirations 106
functions of 154–180
inheritance from Britain 110
irrevocable duty to serve, Members 109
legislation (law-making) as function 162–175
Members of (MPs), power and privileges 116–123
National Assembly (NA) 127–144
National Council of Provinces (NCOP) 145–154
national forum for public consideration as function 155
openness and transparency 115, 116
oversight as function 161, 162
political parties, role of 108–113
public involvement in the legislative and other processes 123–127
responsibilities 106, 107
robust discussions, Parliamentary privilege 122, 123
rules regarding the operation of 113–127
State of the Nation 2015 (SONA) 115
State Security Agency 2015 115
structure and composition of 107, 108
supremacy of 11, 12, 49
‘voice of all South Africans’ 106
participatory democracy 85, 92–94, 96 see also democracy
participatory governance 29
party leadership, actual power 212
party political funding 609 see also state capture
party (pure) proportional representation electoral system 128–131, 179
patterns of disadvantage 533
PEPUDA 528, 529, 554–561, 736
petitions see freedom of petition
picket see freedom of picket
pith and substance test for Bills 320–324 see also substantial measure test for Bills
Plaatje, Sol 737
plenary law-making power 178, 179
pluralism 639
police 676, 677
political culture, South Africa’s 35, 36, 111
political history South Africa see history, South Africa
political parties
 Britain 110
citizens as members of 110
citizen participation 721
dominant political party 218
elections, free, fair and regular 722–726
electoral system 108, 111, 112
funding of political party 718–722
inheritance from Britain 110
internal culture of 111
internal discipline 715
power over elected members 110–112
prohibited donations 721, 722
regulation of 716–718
role of 108–113
state funding of 718–722
strict party discipline 111
toeing the party line 112, 113
political rights 711–735
before 1994 711, 712
choices 713–718
donations 721, 722
elections 722–726
funding of political parties 718–722
non-citizens 713
political parties 713–718
vote 726–733
polygamous marriages 638
pornography 674, 675
Premier see also provincial government
executive authority 315, 316
Presidential Review Commission 195 see also Mandela, Nelson
President of the Republic of South Africa see also Deputy President
abdicate power 193
acting President 189, 190
authority, sole 193
delegation of legislative authority 204
elected by National Assembly (NA) 183, 184, 217
executive authority 193, 194
Head of National Executive 65, 190, 193, 194, 197, 217
Head of State 65, 190–192, 217
impeachment of President and Cabinet 185, 217
internal party political considerations, role 194, 195
leader of majority party 217
limits of presidential power 197–210
 Ministries in office of 196
New Nation Movement (NPC) v President 131–134
party political system constraints 194, 195
pivotal role as 183, 184
power of the 191–193, 195–197, 218, 219
Public Protector 192, 193
rational connection 207, 208
rationality 206, 207
removal of 183–189
resignation 217
State Capture 192
terms of office 183, 184
veto of Bills 168
vote of no confidence in 188, 217
press see freedom of the press
pre-Union history, South Africa 6–9
principle of avoidance or subsidiarity 311, 420, 528 see also Bill of Rights
principle of checks and balances 57, 182 see also separation of powers
principle of open justice 678–680
principle of respect for the rule of law see rule of law
principle of subsidiarity see principle of avoidance or subsidiarity
privacy, right to 586–591
private person, unauthorized decisions not law 446, 447 see also limitations
procurement 356–361 see also fiscal powers
property 737–780
deprivation of 753–763
dispossession of land by colonial and apartheid states 737, 740
expropriation of 763–774
multi-stage methodology 750–753
Natives Land Act of 1913 737
property clause, negative phraseology 742–750
social solidarity right 749, 750
property clause, negative phraseology 742–750
protected right 439–443 see also limitations
internal modifiers or ‘unqualified terms’ 433, 441, 442
protest, right to 604 see also freedom of association
provinces
developmental function 303
nine 303
provincial administration
national intervention 328, 329
Provincial Divisions of the Supreme Court 233
provincial government
administration 328, 329
 conflicting laws 344
conflicts between national and 325–328
democracy 313, 314
division and demarcation of legislative competences 317–320
division of legislative and executive power between spheres 329
horizontal division of power 361
legislative competence 320–324
national intervention 328, 329
objectives 313–320
pith and substance test 320–324
Premier 315, 316
quasi-federal system of government 361
structures 313–320
provincial spheres 325–328
resolution of conflict with national sphere 325–328
public administration 182
Public Protector
appointment of 198
Chapter 9 institution 99, 283, 300
independent 284–300
remedial action 296–298
report to National Assembly 300
role and powers 300
special case as Chapter 9 institution 291–300
‘State Capture’ 192, 193
public service 182
punishment, free form cruel, inhuman or degrading 579–582
purpose-protecting, as exclusionary rule 613 see also freedom of association

Q
quasi-federal system 302, 303, 361 see also integrated model of federalism

R
racial segregation 11, 38
rational connection 207
rationality 206 see also President
reading down 485–487
reading in 487–492
reasonable accommodation 558–560
‘reasonable and justifiable’ requirements 449–456 see also limitation
Reconstruction and Development Programme/Policy (RDP) 123, 785
redistribution of land 774–780 see also restitution of land
redress measures (affirmative action)
 basic approach 532–536
legality 543, 544
patterns of disadvantage 533
test for 536–543
under PEPUDA 561
Regulations of Gatherings Act 205 of 1993 705–709
religious communities 639–650
commercialisation of religion 642
remedies see constitutional remedies
reparation 527
Report on Traditional Courts 270 see also South African Law Commission
representative democracy 85, 88–92, 96 see also democracy
dominant party democracy 92
limitations of 92
republican Constitution, South Africa 48
Reserve Bank
banker of other banks 356
bank notes and coins 366
central bank 355, 356
formulation and implementation of monetary policy 355
provision of liquidity to banks 355
role 355, 356
restitution of land 774–780 see also redistribution of land
retrospective invalidation of legislation 495–497
revenue 349–353
rights
Bill of Rights 430, 431
constitutional provisions 473–476
equality 517–561
freedom 570–577
freedom of assembly, demonstration, picket and petition 697–711
freedom of expression 666–697
immediately realisable socio-economic 821, 822, 826
non-discrimination 517–561
ownership 743–745
political rights 711–736
property 742–774
protected right 439–443
socio-economic rights 782–842
rule of law
constitutional system 45, 75
Diceyean conception of the 75, 76
English common law tradition 75
expansive conceptions of the 83, 84
 history of the 75–78
Law of Lagos 77, 78
narrow conceptions of the 83, 84
principles of 76
rationality, variable standards 208, 209
under 1996 Constitution, South Africa 79–84

S
Sachs, Albie 21
security, freedom to 577–579
separation of functions, principle of separation of powers doctrine 57 see also separation of powers doctrine
separation of personnel, principle of separation of powers doctrine 57 see also separation of powers doctrine
separation of powers doctrine see also judiciary; national executive; national legislature (Parliament)
branches of government and 104
checks and balances system 57, 97, 182
constitutional law based on 106
counter-majoritarian dilemma, South Africa 69–75
democratic constitutional South African dispensation within system of 99–104
dialogic model of 102–104
executive 60, 61, 65, 66, 68, 69, 97–104
history of doctrine 58–59
interpreting South African separation of powers within own historical context 59, 60
judiciary 66–69, 97–104
legislature 60–65, 68, 69, 97–104
mechanism to give effect to the principle of checks and balances 182
national executive 181
principles of 56, 57
purpose of 56, 57
socio-economic rights 793–795
United States of America 59, 60
sequential and structured approach 451 see also limitations
severance 492, 493
social engineering 13
social rights 28 see also equality
socio-economic rights 782–842
‘access to’ 806, 807
adjudication, constraints 792–795
amici curiae in litigation 791, 792
basic education 822–829
constitutionalisation of 786–792
defined 782
education and 821–842
free tertiary education 837–841
fulfil 797
 guidelines in the interpretation of 795–798
immediately realisable 791, 792
justiciability debate 787, 788
language of one’s choice 829–836
limits of 785
litigation 791, 792
meaningful engagement 817–819
minimum core approach 811–813
negative duties 801, 802
obligations, enforcing 800–819
positive duties 802–819
private parties, obligation regarding 798–800
progressively realisable 789–791
progressive realisation 813–815
promote 797, 798
protect 796
reasonableness 807–811
reasonableness approach 803
reasonableness approach critique 809–811
remedies in cases 819–821
resources, availability 815–816
respect 796
separation of powers 792–795
transformative features of the Constitution of the Republic of South Africa 782, 783
South African Communist Party (SACP)
as liberation movement 14
South African Constitution see also constitution
socio-economic rights in the 789–792
unique aspects of 783
South African government see also history; spheres of government
composition 303
historical development 304, 305
South African Human Rights Commission
Chapter 9 institution 283, 284
independence 284–291
role 284
South African Law Commission (SALC) 270, 271 see also traditional courts
Speaker of the National Assembly (NA) 109, 143, 144
‘spheres’ of government
divided model of federalism 303
equal constitutional status 302
fiscal powers 348–362
geographic, functional and institutional integrity 302
historical background 304, 305
 integrated model of federalism 303
multisphere 313
powers 302
quasi-federal system 303
replaced ‘level’ of government 302
stand and hold office 733–736 see also political parties
state 182
‘State Capture’ Inquiry 192, 193, 609
States of Emergency 220, 221
State of the Nation Address (SONA, 2015) 115, 116
State Security Agency (2015) 115
street renaming 330–333 see also decolonisation; local government
strict party discipline 111, 151, 152 see also political parties
struggle for freedom 5 see also history
substantial measure test for Bills 322, 323 see also pith and substance test for Bills
superior courts
independent and impartial judiciary 245–250
interpreting and enforcing Constitution 281
superior specialist courts 231 see also inferior specialist courts
Labour Court 231
Land Claims Court 231
Tax Court 231
Supreme Court 223 see also High Court
Supreme Court of Appeal (SCA), South Africa
appeals from High Courts 280
before 1994 223
Bloemfontein 230
Constitutional Court on appeal from 280
Deputy President 230
entity in own right 230
headed by President or Deputy President of the SCA 230
hierarchy 66, 223, 229
jurisdiction 230, 243, 244
role 242
suspension of an order of invalidity 497–500

T
Tax Court 231
tertiary education 837–841 see also education
‘three tiers of authority’ 304, 305 see also spheres of government
traditional communities
controversy 383, 384
defined 381, 382
recognition 381, 382
traditional councils
controversy 383, 384
establishment 382, 383
functions 384–385
link to former homelands 383
traditional courts 268–272
lower court 268–272
Report on Traditional Courts 270
South African Law Commission (SALC) 270
traditional governance structures 7, 9, 304, 305, 364
traditional homelands 13, 383, 384
traditional leader(s)
African government 304, 305
apartheid era 367–370
authority 383, 384
chiefs 367
colonial era 367–370
cultural heritage of 14
customary powers of 8
democratic era 372–377
description of hierarchy 378–381
function 381
National House of Traditional Leaders 388–395
Pre-Union 7–9
recognition 378–381
role of 13
taxes, levy 386–388
transition period 370, 371
traditional leadership see also traditional leaders
accountability 376, 377
apartheid era 367–370
colonial era 367–370
constitutional framework governing 364
democratic era 372–377
legislation regulating 377–388
pre-colonial period 367
Traditional Leadership and Governance Framework Act 378
transition period 370, 371
Traditional Leadership and Governance Framework Act 378
traditional marriages 636–638
traditional peoples see Bantu
transformation, radical social and economic 785 see also social-economic rights
transformative constitutionalism 31
trias politica as principle of separation of powers doctrine 57 see also separation of powers doctrine
tricameral legislature 14
two-stage enquiry 431–433
two-stage transition 19, 20

U
ubi ius ubi remedium 512
ubuntu 516, 517
unfair discrimination see also discrimination
differentiation 546–548
distinguish between discrimination and 545
Union of South Africa 5, 9, 39, 737 see also history, South Africa
Union Parliament 10
United Democratic Front (UDF)
as liberation movement 15
United States of America 47, 59, 60, 70
universal adult suffrage 127

V
values, South African constitutional 52–54
Van Riebeeck, Jan 5, 365
veto power, President of South Africa 168
violence, free from 577–579
vote see also Electoral Commission; National Assembly
limitations to right to 136–138
of no confidence 139, 217
right to 135–138, 726–733

W
Westminster
constitutional model 46–49
executive branch 47
legislative branch 47
parliamentary system 6, 10, 39
white settlers 38 see also history
women’s rights 372
worker 403 see also Bill of Rights

Z
Zondo, DCJ 609
Zuma, Jacob 196, 261, 279