Andrew Ndaramira

Student Number: G11n4397

Legal Theory Two: Tutorial one.

Kruger v the President of the republic of South Africa and others 2009(1) SA 417

The issue in contention is whether the Constitutional Court should the high court’s declaration of
invalidity in respect to the first proclamation. The second issue regarded the status of the second
proclamation and finally the consequences of a declaration of validity or invalidity in respect of
the second proclamation.

There are also other issues in this case which also need to be discussed, these issues concerned:
1) The application for direct access to the court by the fund.

2) The question of Mr. Kruger’s locus standi in the proceedings.

3) The applicant’s application for condonation.

The issue arose after the president had referenced the proclamation R27 of the Road Accident
Fund Amendment Act, 2005 incorrectly. Upon noticing that he had amended the wrong sections,
he posted another proclamation in the Government Gazette that was aimed at correcting the
errors in proclamation R27. He posted proclamation R32 which, unknowingly to the President,
contained another error. He mentioned that proclamation R27 really meant to say sections one up
to five of the Road Accident Fund Amendment Act, 2005. In so doing he did not mention that
section 4 was correctly stated in the proclamation R27, he acted as if all the sections in the
proclamation were wrong.

According to Skweyiya J, both proclamation R27 and R32 are invalid, he stated that the first
proclamation mistakenly pointed out sections 6, 10, 11 and 12 as the sections to be amended.He
also pointed out that the second proclamation was invalid as a result of the fact thatthe President
concluded it without the sitting of the parliament. He further stated that proclamation R32 was
wrong considering the fact that it acted as to justify a proclamation that was wrong from the
beginning. The majority judgment declared both the proclamations as wrong.
Jafta AJ reasoned that the first proclamation was wrong; he stated that the wrongfulness of the
proclamation resulted from the error that was made by the president. However he believed that
the second proclamation was not wrong, he summed up that the proclamation acted only as a
means to correct an error that was made in the first proclamation. He reasoned that the
constitution allows the president to announce proclamations that have been made by the
parliament. According to him, the president’s action was partial invalid because the invalidity
did not concern the decision of the president but concerned whether the president could rectify
the problem.

According to Yacoob J,

The majority judgment held that the constitution limits the power of the president and the fact
that he published a second proclamation was unlawful and therefore unconstitutional.