2020

Constitutional Law (CSL2601)

NAME: S Nzimande

SUDENT NUMBER:
65849094

DUE DATE:
30 September 2020

UNIQUE NUMBER:
741534
Question 1

1.1 With reference to the study material, the separation of powers means “the division of
state authority among the legislative, executive and judicial branches of
government.”1 This is so to prevent the abuse of state power by other branches of
government. Neither branch may interfere with the functions of the other branches.
The legislature is responsible for drafting, amending and repealing laws.2 The
executive is responsible for implementing and enforcing the laws that have been
promulgated by Parliament.3 The judiciary interprets and applies the law in order to
resolve disputes between individuals or in order to resolve questions of whether or
not any law or conduct is deemed to be unconstitutional and thus invalid.4
The Constitution of the Republic of South Africa,1996 acknowledges the separation
of powers doctrine. Section 8(1) provides that “[t]he Bill of Rights applies to all law,
and binds the legislature, the executive, the judiciary and all organs of state.”
In De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) [para. 60] the
Constitutional Court held that:
“[o]ver 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 hand, to avoid diffusing power so completely that the government is
unable to take timely measures in the public interest.”5
The counter-majoritarian dilemma arises when the judicial review is seemingly in
conflict with the wishes of the legislative majority.6 In that way, the judiciary as a
branch of government declares the law that has been passed by the legislative

1 Stone L, Mooki M & Mallula D Constitutional Law (Unisa Press Pretoria 2016)12.
2 Stone L, Mooki M & Mallula D Constitutional Law 13.

3 Stone L, Mooki M & Mallula D Constitutional Law 13.

4 Stone L, Mooki M and Mallula D Constitutional Law 13.

5 De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) [para. 60].
6 Stone L, Mooki M & Mallula D Constitutional Law 15.
 majority invalid. This may seem undemocratic at face value, while in fact it is not.
This is so because:
• The Constitution was made by the representatives of the people, assembled
in the Constitutional Assembly.7
• The people are free to state their own views and debate about some belief
systems. The judiciary can help in maintaining stability on that.8
• Judges may inquire into the constitutionality of any legislation. This can guide
the legislature into drafting a legislation that is constitutionally valid.9

The term “dilemma” is therefore not an appropriate description of the situation that
arises because judicial review aims to bring balance and fairness, not an undemocratic
condition.

1.2 In a constitutional and democratic state, public involvement and participation is of

paramount importance before any Bill may be passed by Parliament. The South
African Constitution establishes a democratic system of government with both
representative and participatory elements.10 This means that it will not be normally
allowed for any legislature (National or Provincial) to hold a sitting or any meeting in
secret or prevent certain individuals from attending these events.11 This is to allow
the public to participate in the law-making process.12 Members of Parliament
represent the interests of the people. That is the reason openness and transparency
are important issues here.
The consequences of passing a Bill without public participation are that such law
contained in that Bill would be null and void and of no effect.13 In the case Doctors
for Life International v Speaker of the National Assembly and Others 2006 (12)
BCLR 1399 (CC) [para. 115] the Constitutional Court held that:

7 Stone L, Mooki M & Mallula D Constitutional Law 15-16.

8 Stone L, Mooki M & Mallula D Constitutional Law 16.

9 Stone L, Mooki M & Mallula D Constitutional Law 16.

10 De Vos P et al South African Constitutional Law in Context (Oxford University Press) 119.
11
De Vos P et al Constitutional Law 115.
12
De Vos P et al Constitutional Law 121.
13
De Vos P et al Constitutional Law 120.
 “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."14
Hence this case is imperative in the emphasis of the importance of public
participation in the law-making process.

1.3 Chapter 9 institutions can make findings and recommendations.15 However, they do
not have jurisdiction to review and declare legislation invalid, as courts do.16 For that
reason, the African Students for Freedom would not be able to request the Public
Protector (as part of the chapter 9 institutions) to investigate this matter. Only the
courts have jurisdiction in such matters.
Section 182 of the Constitution makes provisions for the mandate of the Public
Protector. “The Public Protector has the power to investigate any conduct of the
government or administration that is alleged or suspected to be improper or to result
in any impropriety or prejudice.”17 He/she has a constitutional obligation to report
and to take appropriate remedial action on that conduct. He/she must report to the
National Assembly at least once a year.18

14 Doctors for Life International v Speaker of the National Assembly and Others 2006 (12) BCLR 1399
(CC) [para. 115].
15 De Vos P et al Constitutional Law 258.
16 De Vos P et al Constitutional Law 258.
17 De Vos P et al Constitutional Law 264.
18 De Vos P et al Constitutional Law 264.
 Before the case Economic Freedom Fighters v Speaker of the National Assembly
2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016) [hereinafter
referred to as EFF case] the decisions of the Public Protector were NOT usually
binding and enforceable.19 However, the EFF case has changed that position. In
this case the Constitutional Court held at para. 52:
“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.88 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.”20

In para. 104, the Court ordered that (order 3):

“The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in
terms of section 182(1)(c) of the Constitution is binding.”

Hence, the decisions of the Public Protector are legally binding.

19De Vos P et al Constitutional Law 265.

20Economic Freedom Fighters v Speaker of the National Assembly 2016 (5) BCLR 618 (CC); 2016 (3)
SA 580 (CC) [para. 52].
 Question 2

Law Society of South Africa and Others v President of the Republic of South Africa and
Others (South Africa Litigation Centre and Centre for Applied Legal Studies as Amicus
Curiae) 2019 (3) BCLR 329 (CC)

Summary of the facts

In this case the Constitutional Court ruled in an application for the confirmation of the
order made by the High Court of South Africa, Gauteng Division, Tshwane.21 The High
Court declared the former President’s participation in the suspension of the operations
of the Protocol on the Tribunal (2000 Protocol) unconstitutional.22 In addition to that, the
Court also held that his signing of the Protocol (2014 Protocol) that prevents individuals
from lodging complaints to the Tribunal is invalid.23 In the majority judgement, the
Constitutional Court confirmed the orders of the High Court.24

Legal question

The issues that were before the court were:

(a) Whether the President’s negotiation and signing of the 2014 Protocol on the
Tribunal in the Southern African Development Community (Tribunal) was
unconstitutional, unlawful and irrational?25
(b) Whether the President’s decision to support the suspension of the SADC
Tribunal was unconstitutional, unlawful and irrational?26

21 Law Society of South Africa and Others v President of the Republic of South Africa and Others (South
Africa Litigation Centre and Centre for Applied Legal Studies as Amicus Curiae) 2019 (3) BCLR 329 (CC)
[para. 19] [hereinafter referred to as Law Society case].

22 Law Society case [para. 18].

23
Law Society case [para. 18].
24
Law Society case [para. 97].
25
Law Society case [para. 7].
Ratio decidendi [The court’s reason for its decision]

The Court’s reasoning was that customary international law requires the President to
act in good faith and in a manner consistent with the country’s obligation to uphold the
spirit, object and purpose of the Treaty.27 For this reason, the President’s participation in
rendering the Tribunal dysfunctional, negotiating the amendment of the Treaty as well
as signing the 2014 Protocol, resulted in an unlawful conduct.28

The Court held that the President did not have powers to deny the appointment or the
renewal of the Tribunal’s Members terms.29 He also had no powers to suspend the
Tribunal’s operations.30 Thus, his conduct was declared unlawful.

The Court also reasoned the application of rationality in the President’s decision.31 It
was held was held that “rationality applies not only to the decision, but also to the
process in terms of which that decision was arrived at.”32 In that way, the Court
reasoned that it was irrational for the President to suspend the operations of the
Tribunal, since he did not have powers to do so.33 Therefore, this is one of the reasons
by the Court to declare the President’s participation in the decision to suspend the
operations of the Tribunal as well as amending its jurisdiction invalid.34

The Court also held that the President has the authority to negotiate and sign
international agreements on behalf of the citizens but provided he does not approve
anything that is inconsistent with the Bill of Rights and international law obligations.35
Since the President signed the Protocol that denies individuals their rights of access to
justice through the Tribunal, then the individuals rights were compromised. For this

26
Law Society case [para. 7].
27
Law Society case [para. 55].
28 Law Society case [para. 55].
29 Law Society case [para. 56].
30 Law Society case [para. 56]
31 Law Society case [para. 61].
32 Law Society case [para. 61].
33 Law Society case [para. 71].
34 Law Society case [para. 71].
35 Law Society case [para. 76-77].
reason, the Court held that this is inconsistent with section 7(1) and (2) and section 8(1)
of the Constitution.36 Therefore, the Court concluded by holding that the President’s
conduct of signing the 2014 Protocol is unconstitutional.37

Findings

The Court confirmed the order of constitutional invalidity made by the High Court.
Ultimately, the Court concluded that the President’s conduct was unconstitutional,
unlawful and irrational.38

36 Law Society case [para. 79].

37 Law Society case [para. 85].
38 Law Society case [para. 97].
Bibliography

1. Books
Stone L, Mooki M & Mallula D Constitutional Law (Unisa Press Pretoria 2016)12

De Vos P et al South African Constitutional Law in Context (Oxford University

Press)

2. Cases

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC)

Doctors for Life International v Speaker of the National Assembly and Others
2006 (12) BCLR 1399 (CC)

Economic Freedom Fighters v Speaker of the National Assembly 2016 (5) BCLR
618 (CC); 2016 (3) SA 580 (CC)

Law Society of South Africa and Others v President of the Republic of South
Africa and Others (South Africa Litigation Centre and Centre for Applied Legal
Studies as Amicus Curiae) 2019 (3) BCLR 329 (CC)
ACADEMIC HONESTY DECLARATION

Declaration
1. I understand what academic dishonesty entails and am aware of Unisa’s policies
in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the work
or works of other people has been referenced according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.

NAME: Sibusiso Nzimande

ID NUMBER / PASSPORT NUMBER: 810202 7076 088
STUDENT NUMBER: 65849094
PHYSICAL ADDRESS: 10172 Grassland, Bloemfontein, 9301
DATE: 19 September 2020