CSL2601/102/2024

Tutorial Letter 102/2024

Wrap-around tutorial letter to accompany the
prescribed textbook: de Vos et al South African
Constitutional Law in Context 2nd edition (2021)
Oxford University Press

Constitutional Law

CSL2601

Department of Public, Constitutional &

International Law
 CONTENTS
1 INTRODUCTION .......................................................................................................................... 3
2 ‘THE PERSONAL IS POLITICAL’: DECOLONISATION OF LAW THROUGH THE DYNAMIC
POWER OF IDENTITY AND CULTURE ....................................................................................... 4
3 DIAGRAMATIC REPRESENTATION OF CONSTITUTIONAL LAW ............................................ 6
4 PRACTICAL APPLICATION OF CONSTITUTIONAL DEMOCRACY .......................................... 9
5 SUMMARIES OF CHAPTERS 1 TO 8 ........................................................................................ 12
5.1 Chapter 1 ......................................................................................................................................... 12
5.2 Chapter 2 ......................................................................................................................................... 28
5.3 Chapter 3 ......................................................................................................................................... 51
5.4 Chapter 4 ......................................................................................................................................... 54
5.5 Chapter 5 ......................................................................................................................................... 70
5.6 Chapter 6 ......................................................................................................................................... 78
5.7 Chapter 7 ......................................................................................................................................... 85
5.8 Chapter 8 ......................................................................................................................................... 90
6 EXTRACTS AND COMMENTARY OF RECENT CASES ........................................................... 98
6.1 City of Tshwane Metropolitan Municipality v Afriforum & Another 2016 (6) SA 279 (CC) ............ 98
Commentary: ............................................................................................................................ 112
6.2 Economic Freedom Fighters v Speaker of the National Assembly 2016 (5) BCLR 618 ............ 114
(CC); 2016 (3) SA 580 (CC) (31 March 2016) ........................................................................... 114
Commentary: ............................................................................................................................ 138
6.3 Economic Freedom Fighters & Others v Speaker of the National Assembly & Others 2018 (3)
BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December 2017) ................................................... 140
Commentary: ............................................................................................................................ 172
6.4 United Democratic Movement v Speaker of the National Assembly & Others (CCT89/17) [2017]
ZACC 21 (22 June 2017) .......................................................................................................... 173
Commentary: ............................................................................................................................ 195
6.5 Democratic Alliance v Minister of International Relations and Cooperation & Others [2017]
ZAGPPHC (22 February 2017) ................................................................................................. 196
Commentary: ............................................................................................................................ 221
6.6 Democratic Alliance v President of the Republic of SA; In re: Democratic Alliance v President of
the Republic of SA & Others 2017 (4) SA 253 (GP) (9 May 2017) ............................................ 222
Commentary: ............................................................................................................................ 225
6.7 Corruption Watch NPC & Others v President of the Republic of South Africa; Nxasana v
Corruption Watch NPC 2018 (10) BCLR 1179 (CC) (13 August 2018) ...................................... 226
Commentary: ............................................................................................................................ 254
7 TEST YOUR KNOWLEDGE QUESTIONS (WITH FEEDBACK) .............................................. 257
8 TRANSLATED GLOSSARY OF TERMS RELEVANT TO CSL2601 ........................................ 298

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1 INTRODUCTION
As a dynamic subject that develops on an ongoing basis due to binding judicial precedent set in
cases concerning the interpretation and application of the Constitution, Constitutional Law
includes far more than simply what is contained in the textbook South African Constitutional Law
in Context. When studing CSL2601 you are expected to achieve a number of outcomes, such as:
- ensuring that you recognise the obligation imposed upon you as responsible citizens, to
keep the government in check;
- to enable you to demonstrate your understanding of the mutually-supporting relationship
between a sovereign state’s internal and external utterances, thus ensuring that the
international law commitments that South Africa has voluntarily undertaken – and
compliance therewith – are fully in conformity with the Constitution;
- to identify when the theory contained in the Constitution or other law does not cohere with
practice, specifically with regard to executive conduct performed when implementing law.

The outcomes stated above will be only achieved if you are able to:
▪ locate, identify and extract the concepts, principles and rules of constitutional law from a
variety of sources, in particular: textbooks, statutes, law reports and journal articles;
▪ present written arguments which demonstrate your understanding of the concepts,
principles and rules of constitutional law;
▪ analyse judgments of the Constitutional Court, the Supreme Court of Appeal and the High
Courts, so as to list, summarise, apply and judge the constitutional concepts, principles and
rules articulated and developed by the courts; and
▪ analyse the facts of legal problems so as to identify the nature of the problem, explain the
appropriate legal concepts, principles and rules and correctly apply these concepts, principles
and rules so as to demonstrate an ability to analyse and solve problem-type questions.

Related to these outcomes is the assessment criteria. In order to pass CSL2601, a pass mark
of at least 50% is required. You will pass the module if you are able to:
▪ identify basic legal principles correctly and articulate or explain them in a manner that is
fundamentally accurate, though detail may be lacking;
▪ analyse the substantive law in a fundamentally accurate way and display adequate
understanding, though the analysis may be lacking in depth;
▪ express yourself in language that is of an acceptable level, without plagiarising.

Ideally, however, you should be able to provide a broad and comprehensive depth of
understanding of the material, particularly if you are registered for the LLB degree, of which
CSL2601 is a core, compulsory module worth 12 credits.

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2 ‘THE PERSONAL IS POLITICAL’: DECOLONISATION OF LAW
THROUGH THE DYNAMIC POWER OF IDENTITY AND CULTURE
In 2012 the judiciary complained that law graduates ‘are out of their depth and lack
communication skills’.1 In addition, the 2014 White Paper on Post-School Education and
Training concedes that ‘there is widespread concern that “learners emerging from basic
education are insufficiently prepared for further study exhibited through a veritable lack of
adequate reading, writing and comprehension skills”.’2 When students struggle to comprehend
the study material they consequently suffer feelings of inadequacy and deficiency.3 It is possible
that colonisation is the cause of the incomprehension of [Constitutional] Law because of the
transplantation of judicial institutions from the developed world into developing states with no
regard for the domestic circumstances. This is unsustainable and invariably results in a
repeated cycle of ‘violence, governments collapsing, rights being altered, property being
expropriated, new constitutions being written and policies altered overnight’.4

The philosopher Paolo Freire wrote in 1975 that students must become active participants in
creating and negotiating knowledge so as to prevent the situation where they simply ‘adapt to
the world of oppression’ by consuming information without thinking critically. 5 Therefore, to
achieve transformation, you, the student, need to actively participate in creating alternative and
decolonised epistemologies (knowledge systems) that will resonate with the inextricable link to
your understanding of yourself (identity) and the society in which you operate (culture).
Changing the way you think and the way you behave should result in a political shift taking
place, which carries with it personal ownership of the process and the outcomes. Inevitably, the
process and the outcomes will thus be more legitimate, just and equitable, particularly since
they affirm self-worth and culture. The contribution of indigenous knowledge systems to theories
of self-determination, education and survival is crucial in eradicating the grip of colonialism. 6
Guiding us 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’. Since South Africa has an autochthonous Constitution (indigenous/home-
grown and which contains elements of typically African concepts, such as Ubuntu) you should
understand, interpret and develop the law with reference to indigenous values. For example:

1 IOL News, ‘Lack of skill in law graduates, says judge’ 30 July 2012.
2 White Paper on Higher Education, 6.
3 RJC Young Postcolonialism (2003) 6. Young states: ‘When faced with the authority of theory produced by
academics, people often assume that their own difficulties of comprehension arise from deficiency in themselves’.
4 B Weingast (2008) ‘Why developing countries prove so resistant to the rule of law’ in JJ Heckman, R Nelson &
L Cabatingan (eds) Global Perspectives on the Rule of Law (2010) 20.
5 P Freire ‘Pedagogy of the oppressed’ in M Golby, J Greenwald & R West (eds) Curriculum Design (1975) 143.
6 L Patel Decolonizing Educational Research (2016) 3.
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Since Ubuntu essentially means that everybody counts in society, Ubuntu’s relationship with
the constitutional law principles of the rule of law and democracy is clear. With respect to the
rule of law, two prominent Africanists, Mbembe and Ramose, argue that ubuntu is a process
of community-making that is premised on respecting the humanity of others and engaging in
ethical interaction with others. Their view is thus that all of us must follow the rules all of the
time to illustrate our respect and concern for each other’s well-being. Once a pattern forms
where certain people do not follow the rules, it would be absurd to expect ethical behaviour
from some but not others. On this thinking anarchy could result if we do not act ethically.
Similarly, in a democracy, everyone’s opinion counts and must be considered. This is the
epitome of a multi-party democracy, which South Africa has. Everyone’s place in society and
right to be heard must be respected. Parliament is the representation of democracy in action,
because it is as a direct consequence of elections that have been held that the members of
Parliament are elected by us, the people, to represent our needs in that forum where the
laws and important decisions governing our lives are made. Thus, Ubuntu is applicable to
participation in the legislative process. As such, the people should be afforded an opportunity
to provide their opinion on decisions that will affect them. What the case of Merafong
Demarcation Forum and Others v President of the Republic of South Africa and Others 7 has
revealed to us in paragraphs 133 to 140 is that genuine public participation should occur. In
the Merafong case, even though a consultative process had been followed whereby the
community were allowed to air their views, the opinions of the community were blatantly
disregarded. The majority of residents of Khutsong opposed the Constitutional Amendment
which would relocate Merafong municipality to the North West province from Gauteng, yet
the legislature brought the law into force regardless of the dissatisfaction. As a direct result of
the failure to give meaningful effect to public participation, the Khutsong township of
Merafong became ‘ungovernable’ and resembled a war zone as residents refused to accept
the decision to relocate the municipality. Therefore, the conclusion is that public participation
is essential, but it must be real public participation and not formalistic thus giving the
impression that it is taking place whereas it is not in reality.
At a minimum, we should have the legitimate expectation that Parliament will not act
arbitrarily but will instead embrace the views and opinions even of the minority parties in
Parliament and act strictly according to the Constitution. However the evidence has revealed
that Parliament laundered the Public Protector’s Report ‘Secure in Comfort’ on the “Nkandla”
matter in an attempt to absolve the President of any wrongdoing, 8 It is thus unacceptable and
intolerable for the minority parties in parliament to be marginalised simply because there are
fewer members of the minority in Parliament. Furthermore, in the context of scarce resources
(as per Mokgoro’s description of Ubuntu), corruption cannot be tolerated because it is those
same resources which are required for society’s development and survival. Ubuntu thus
signifies the approach that everyone must act in solidarity towards a common objective.

By inculcating a culture of ‘thinking citizens, who can function effectively, creatively and ethically
as part of a democratic society … [with] an understanding of their society, and be able to
participate fully in its political, social and cultural life’, transformation will occur. Our approach is
that we afford you optimal opportunities for learning based on a well-constructed framework that
helps to make complex information understandable, relevant and personally important, while
maintaining truthfulness and accuracy about the topic. The well-constructed framework is the
Diagrammatic Representation of Constitutional Law.

7 2008 (10) BCLR (CC) 968.

8 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016), dealt with in detail below.
5
3 DIAGRAMATIC REPRESENTATION OF CONSTITUTIONAL LAW
Constitutionalism
Certification of the Constitution, 1996
Entrenched; supreme Constitution; protection of rights… Chapter 9 Institutions
City of Tshwane v Afriforum Public Protector; IEC
Mayibuye iAfrika; Amandla awethu, mannda ndiashu EFF v Speaker of the NA (2016)
maatla ke a rona matimba ya hina New National Party; Liberal Party v IEC;
umuntu ngumuntu ngabantu IEC v Langeberg Municipality; ACDP v IEC
Separation of powers
De Lange v Smuts
Heath Judicial Service Commission
/ Langa
v Hlophe
Rule of law Helen Zille v JSC
/
DA v Minister of IRCO / Helen Suzman Foundation
EFF 1; EFF 2; Afriforum; UDM / Freedom Under Law
Democracy Corruption Watch / Nxasana / Choudry “He had a mandate”
August; Richter /
5 forms of democracy in SA /
National Prosecuting Authority
NATIONAL SPHERE / Glenister (I) & (II)
/
/ Menzi Simelane
/
Executive Council of the WCape Mazibuko v City JHB / / Corruption Watch / Nxasana
Fourie TAC; Pillay / /
National Treasury v OUTA / /
/ /
Legislature Executive Judiciary
Pass, amend, repeal laws Formulate policy Resolves disputes concerning
Initiate/prepare legislation Implementation of law interpretation and application of
Hold executive accountable Executive Council the Constitution (for CSL purposes)
Oriani-Ambrosini of the Western Cape
Masethla SARFU; Makwanyane; Hugo
National Assembly (400
members, elected by voters) President
Mazibuko Leader of Opposition v Deputy President Constitutional Court
Sisulu MP Speaker of the NA Cabinet Supreme Court of Appeal Co-operative /
De Lille; EFF v Speaker (2017) DA v President of RSA multilevel Govt
Appointment and removal Rules for resolving conflicts:
of President, etc. (s 86, 89, 102) Sch 4 [concurrent competencies]
UDM v Speaker of the NA ~ national and provincial sphere
can pass legislation, validly.
PROVINCIAL SPHERE Conflict? s146 invoked
Legislature Executive Judiciary Sch 5 [excl provincial competence]
9 provincial legislatures Premier High Courts Conflict? s147 invoked referring to
Premier of the Western Cape s44(2). Is it necessary for:
Provinces: Minister of Police v Premier of the WC 1. national security; 2. economic unity
1) link voters and government to ensure government addresses challenges/needs of geographical areas 3. essential national standards
2) implement national service delivery policies and plans eg housing 4. minimum standards for service delivery
3) oversees smooth running of local sphere 5. prevent unreasonable action by a province
LOCAL SPHERE = National legislation prevails
Fedsure Life Assurance v JHB Metro Council Joseph v City of JHB
Legislature Executive Judiciary
Municipal Council Mayor Magistrates’ Court
(The smaller the municipality, the closer the legislative and (no constitutional jurisdiction)
executive functions. They are performed by the same people)
City of Tshwane v Afriforum
Robertson; Merafong; City of JHB Metro v Gauteng Development Tribunal
Premier of the Western Cape v Overberg District Municipality

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This diagram gives an overview of the entire module:

Chapters 1 and 2 of the textbook deal with ‘Rule of Law, Democracy, Separation of Powers,
Constitutionalism’ at the top left of the page.
Chapter 3 of the textbook deals in more depth with the Separation of Powers, hence the lines
between the Separation of Powers and the Legislature, Executive and Judiciary.
Chapter 4 relates to the legislature at the national level.
Chapter 5 relates to the executive at the national level.
Chapter 6 relates to the judiciary at the national level. Here, there are dotted lines between the
JSC and National Prosecuting Authority because they are independent from – but wholly integral
to – the effective functioning of the judiciary
Chapter 7 deals with the Chapter 9 Institutions [the IEC and Public Protector] (top right of page)
Chapter 8 relates to multi-level government, thus it addresses the middle and bottom part of the
diagram. The rules for resolving conflicts are mentioned on the bottom right of the page.
Case names have been inserted under the respective headings on the diagram. This is to
provide you with a snapshot of which cases are relevant under which sections, although it is not
a closed list of cases that you could apply to a discussion of any of the aspects.
Put differently, the diagram can be discussed in narrative form as follows:
1. Constitutional Law is defined as the law that regulates the relationship between the 3
principal organs of state, namely the legislature, the executive and the judiciary. It therefore
regulates the structure of each of these organs; their powers; their duties; and their relationship
with society (the people). This distinction between the 3 principal organs of state is called ‘the
separation of powers doctrine’. This definition is evident in the diagram because it illustrates
that within the national sphere, there is a legislature; an executive and the judiciary. These
principal organs also exist in the provincial and the local spheres.
2. The 3 principal organs of state are independent of each other and have original
constitutional powers dictating what they can and cannot do.
3. It is often necessary, however, for the spheres to co-operate with each other and if it is
found that the local sphere is unable to perform one of its functions, then the provincial and/or
national sphere can intervene because they play a supervisory role.
4. Rules exist in the Constitution for how the spheres should co-operate with each other. To
resolve conflicts: in the case of a Schedule 4 conflict, section 146 of the Constitution is invoked;
in the case of a Schedule 5 conflict, section 147 is invoked, which refers to section 44(2).
5. The fundamental concepts of constitutionalism, democracy and the rule of law permeate all
aspects of Constitutional Law, because every single thing that the legislature, executive and

7
judiciary do, must be consistent with the rule of law and South Africa’s constitutional
democracy, or else it must be declared invalid in terms of section 172 of the Constitution.
6. You will notice dotted lines from the Judicial Service Commission to the Judiciary and from
the National Prosecuting Authority to the Judiciary. The dotted line means the following: these
two constitutionally established institutions are not part of the Judiciary, but they both play a
fundamental role in ensuring that the Judiciary operates effectively. Without the Judicial Service
Commission, we cannot be guaranteed that our judges are fit and proper and have the requisite
experience, temperament, qualifications, integrity, honesty, etc. Without the National
Prosecuting Authority, the judiciary will be unable to prosecute those persons accused of
having committed criminal offences. The Constitution regulates the composition of the Judicial
Service Commission and regulates the powers of the Judicial Service Commission. The
Constitution explains that the President must appoint someone as the National Director of
Public Prosecutions and that person must be fit and proper (see the Corruption Watch/Nxasana
case) or else they will have to be removed from office, as happened to Menzi Simelane.
Importantly, the National Prosecuting Authority is also not part of the executive but must
occasionally inform the executive (the Minister of Justice and Correctional Services) about what
it has been doing. The executive is NOT allowed to tell the Prosecuting Authority what to do. It
must be entirely independent. If it is not, then a constitutional challenge concerning its loss of
independence can be brought (as seen in the Glenister cases).
7. The Chapter 9 institutions are also constitutionally-established bodies which have powers
conferred upon them by the Constitution in order to ensure that our constitutional democracy
operates as it should do. For purposes of CSL2601, the most important Chapter 9 institutions
are the Independent Electoral Commission and the Public Protector.
8. Also inserted are short references to academic articles. The article by Choudhry, for
example, is discussed in the textbook.9 The article by Choudhry is important because the very
concept of colonisation should fundamentally impact your understanding of constitutional
democracy. Indeed, Sujit Choudhry describes South Africa as a one-party dominant democracy
when he states: ‘one of the pathologies of a dominant party democracy is the “colonisation”
(capturing) of independent institutions meant to check the exercise of political power by the
dominant party, enmeshing them in webs of patronage’. The word colonisation should evoke
instant recognition that a dominant party democracy may reseat colonisation, albeit that it is
colonisation by those who liberated South Africa of apartheid.

9 de Vos P and Freedman W et al South African Constitutional Law in Context (2021) 37.
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4 PRACTICAL APPLICATION OF CONSTITUTIONAL DEMOCRACY

In a constitutional democracy, such as South Africa, the government is deemed to operate on the
basis of the notion of constitutionalism. As De Vos et al state,10 constitutionalism “conveys the
idea of a government that is limited by a written constitution: it describes a society in which elected
politicians, judicial officers and government officials must all act in accordance with the law”.

The life of the law, said Roscoe Pound in 1912, is in its enforcement.11 His thinking was
informed by the fact that law is a social institution, which may be improved by intelligent human
effort in the form of the interpretation and application of legal rules that take into account the
social facts upon which the law is to be applied. What Pound had in mind is that the law should
be interpreted sociologically (that is, as a product of the people). The South African Constitution
is possibly one of the best examples of a Constitution that is the product of the people: it was
adopted after a lengthy process of careful deliberation and negotiation by representatives of all
political parties – initially in the form of the Convention for a Democratic South Africa (CODESA)
and thereafter, the Multi-party Negotiating Forum. By virtue of section 2, as read with section
172 of the Constitution, the Constitution is the supreme law of the land and all law and all
conduct inconsistent with it, is invalid. Therefore, it is our wish that as a product of the people,
the Constitution will be an enforceable and binding document that will keep all representatives
of the state, including the President and the government, in check, thus guarding against any
abuse of power. After all, as James Madison, the fourth US President stated: “If angels were to
govern men, neither external nor internal controls on government would be necessary”
(otherwise abbreviated to “men are not angels”). Notwithstanding the explicit Constitutional
directive that obliges the judiciary to declare law or conduct unconstitutional, a fairly common
sentiment issued by the African National Congress whenever the judiciary decides a matter
declaring that the government’s actions are unconstitutional,12 is along the following lines:
Political disputes resulting from the exercise of powers that have been constitutionally
conferred on the ruling party through a popular vote should not be subverted. Those who
disagree with the ruling party’s politics and who cannot win the popular vote during elections
use other arms of the State to co-govern the country.
This represents the quintessential counter-majoritarian dilemma, which is believed to indicate
that the judiciary’s immense power erodes or undermines democracy. Instead, however, this
issue requires careful and considered thought about the exact meaning of the counter-

10 As above, 42.
11 Pound R ‘The Scope and Purpose of Socio-Logical Jurisprudence III’ Harvard Law Review (1912) 25(6) 514.
12 Editorial Staff, ‘ANC Increasingly Resentful of Our Independent Judiciary’ Times Live (Johannesburg, 24 June
2015) http://www.timeslive.co.za/thetimes/2015/06/24/ANC-increasingly-resentful-of-our-independent-judiciary.
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majoritarian dilemma, as well as an appreciation of exactly what democracy entails, but with the
proviso that the separation of powers doctrine and democracy may take a variety of forms.

The landmark case of De Lange v Smuts NO13 reveals that South Africa has a unique, special
and evolving form of the separation of powers doctrine. What the Court held in the case is:
over time our courts will develop a distinctively South African model of separation of powers,
one that fits the particular system of government provided for in the Constitution and that
reflects a delicate balancing, informed both by South Africa’s history and its new
dispensation, between the need, on the one hand, to control government by separating
powers and enforcing checks and balances, and, on the other, to avoid diffusing power so
completely that the government is unable to take timely measure in the public interest.
You should therefore appreciate that the relationship between a supreme constitution and the
court's testing power is that when a constitution is supreme, all law and all conduct must comply
with it. In the event that the law or conduct does not comply with the Constitution, the court must
declare it invalid. This is stipulated in section 172 of the Constitution and arises from the fact that
we, the people, chose to give our courts this testing power when our representatives drafted the
Interim and Final Constitutions in the early 1990s. Accordingly, the testing power of the courts
reinforces the supremacy of the Constitution and ensures that it remains supreme and that all
laws are compatible with it. Given South Africa’s history where the judiciary had no right to
declare any substantive aspects of the discriminatory (apartheid) law invalid,14 it was specifically
decided to permit the judiciary to declare law or conduct unconstitutional in order to protect the
integrity of South Africa’s hard-fought Constitutional democracy. A typically South African
interpretation of the separation of powers doctrine is therefore in the process of being
developed, which is one example of how South African law is already decolonised.

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

The technicalities of the counter-majoritarian dilemma are expressed in the following terms:
South Africa uses a closed list proportional representation electoral system. This system entails
that prior to a general election, each political party holds a national elective conference. During
this conference, the members of each political party nominate a list of candidates, ranking them

13 1998 (3) SA 785 (CC).

14 Dyzenhaus D Truth, Reconciliation and the Apartheid Legal Order (1998) 169.
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in order of preference. These lists are submitted to the Independent Electoral Commission when
the political party registers to take part in the election. The consequence is that voters vote for a
political party and not for individual candidates. The National Assembly is constituted by
members of each of the political parties according to the proportion (percentage) of votes
received. Therefore, the higher up on a political party’s electoral list a person is ranked, the
more likely it is that he or she will be elected to the National Assembly.15

At the National Assembly’s first sitting after the election, the National Assembly elects the
President of the Republic of South Africa from amongst its members. The President then
immediately ceases to be a member of the National Assembly and instead becomes the Head
of the Executive branch of government. The President appoints his Cabinet (the Deputy
President and Ministers). The Deputy President and the Ministers are responsible for the
powers and functions of the executive assigned to them by the President.

Subsequently, national legislation is enacted by the 400 members of the National Assembly
who have all assumed their positions because they are representatives of political parties and
we voted for the particular political party during the election. Thus, the Parliamentarians
represent us and have been mandated by us to pass laws on our behalf and in our interests.
Despite this, if the law that they have passed is challenged for being unconstitutional, 11 judges
(that is the number of judges in the Constitutional Court, but it may even be as little as a single
judge in the High Court) who we have not elected, but who were appointed to those positions,
have the right to declare a law invalid. Thus, on the face of it, it appears undemocratic but there
are a variety of reasons why it is not undemocratic. A fundamental reason why it is not
undemocratic is because the judiciary knows the limits of its powers: it is acutely aware that it
may only go as far as declaring the law invalid and then refer the law back to Parliament for
Parliament to amend the law. The judiciary does not re-write the law, as this would amount to a
violation of the separation of powers doctrine. Thus, the proper functioning of the judiciary in
relation to the legislature was spelt out in Mazibuko Leader of the Opposition in the National
Assembly v Sisulu MP Speaker of the National Assembly and Others, 16 where it was held that:
There is a danger in South Africa of the politicisation of the judiciary, drawing the judiciary
into every political dispute as if there is no other forum to deal with a political impasse relating
to policy or disputes which clearly carry polycentric consequences beyond the scope of
adjudication.
In the context of this dispute, judges cannot be expected to dictate to Parliament when and how
it should arrange its precise order of business matters. The Court also held that:

15 de Vos and Freedman South African Constitutional Law in Context 88.

16 2013 (4) SA 243 (WCC).
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 Courts do not run the country, nor were they intended to govern the country. Courts exist to
police the constitutional boundaries, as I have sketched them. Where the constitutional
boundaries are breached or transgressed, courts have a clear and express role; and must
then act without fear or favour.17

Likewise, when the President, Deputy President and Ministers are implementing the law in terms
of their positions as members of the executive, they must ensure that they comply with the
Constitution and all other law. If (as is revealed in the cases below), the conduct of the President,
Deputy President or Ministers is not in terms of the Constitution or the law, it is the court’s duty
to declare that conduct invalid. However, the court does not tell the executive how it should act
differently, because that decision remains a decision to be taken by the executive alone.

5 SUMMARIES OF CHAPTERS 1 TO 8
5.1 Chapter 1

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 THE RELATIONSHIP BETWEEN THE COUNTER MAJORITARIAN DILEMMA
AND THE SEPARATION OF POWERS
The counter majoritarian dilemma is a concept that can be applied in any question/issue
relating to the separation of powers and to the accountability of the executive and the
legislature.

South Africa has at least 5 different forms of democracy all operating simultaneously:
- [1] Direct democracy means that the people have a direct say. This usually only applies in
situations such as a referendum, so does not apply often at all in a complex, large
democracy such as south Africa.
- South Africa is also a [2] participatory democracy which means that whenever any decisions
are made regarding the amendment or introduction of new legislation occurs, the people
must be given an opportunity to meaningfully participate in this process, failing which the
legislation would be declared invalid for failure to comply with the procedural aspects of the
constitution.
- As a [3] constitutional democracy, all law and all conduct must be compatible with the
Constitution. If it is not, it must be declared invalid.
- The fourth and fifth forms are particularly relevant to the broader question of the proper
functioning of Constitutional Law. In a [4] multi-party, [5] representative democracy, such as
South Africa, it is impossible for every person to be a Member of Parliament and to pass
laws that will impact on their lives. For this reason, every 5 years, free, fair and regular
elections are held which gives us the opportunity to elect the representatives who will act on
our behalf and in our interests.
South Africa has a closed-list proportional representation electoral system. Prior to every
election, electoral conferences are held by each political party. It is during these conferences
that the political party formulates its list of delegates who the party deems fit to represent the
political party. The various provinces all send representatives to speak on their behalf as to
whose names should be included in this list of 400 names (because Parliament is composed of
400 people). This is seen to be a fully democratic process because the peoples’ wishes as to
whose names are contained on the list, are respected.
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Each of these lists are then presented to the Independent Electoral Commission.

The ANC’s list, for example, is something like:

1 Cyril Ramaphosa
2 David Mabuza
3 Gwede Mantashe
4 Malusi Gigaba
5 Bathabile Dlamini
6 Nomvula Mokonyane
7 Baleka Mbete
… …
399 …
400 Tshepo Mkhize

These lists are able to be scrutinized by the citizenry. There is obviously some debate about the
inclusion of some of the names, such as numbers 4, 5 and 6 (and even 3 in light of Bosasa
having paid for his security at his homes). It is called a closed list because once the names
have been agreed on, names cannot arbitrarily be inserted and/or removed.
When the elections are held, we do not vote for individual people. We vote for the political party
of our choice.
African Christian Democratic Party ACDP

African National Congress ANC

Democratic Alliance DA

Economic Freedom Fighters EFF

Freedom Front Plus FF+

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 Good Party GP
GOOD

Inkatha Freedom Party IFP

South African Capitalist Party

ZACP

South African Communist Party SACP

On the basis of the number of votes received per political party, representatives of those
political parties are then elevated to the National Assembly (Parliament) in proportion to the
votes received. You will note that the textbook contains the formula for calculating how votes
are converted into seats in Parliament. Based on the number of votes each party obtains, they
will have representatives of the people in Parliament.

Everything described thus far indicates that the process is entirely democratic. Even more so,
once the 400 people assume their positions as Members of Parliament, another election takes
place within Parliament itself. Therefore, our representatives, speaking on our behalf, vote for
the President. As soon as the President is elected, he is no longer a member of Parliament (the
legislature), but immediately assumes his position as Head of the Executive. As the person
elected to the position in accordance with the wishes of the people, the President then has the
right to appoint the Deputy President and the members of his Cabinet (Ministers responsible for
various government departments).

Minister Minister Deputy President President Minister Minister Minister Minister

For the most part, the legislature is then democratically empowered by us to pass, amend and
repeal laws. Likewise, the executive officials all have the powers vested in them in terms of the
Constitution to ensure the implementation of those laws (thus epitomizing the separation of
powers doctrine). If, however, there is any allegation that a law is unconstitutional or that
executive conduct is invalid, the third branch of the state – the judiciary – is tasked with
determining whether or not the law or conduct is unconstitutional.

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https://www.news24.com/news24/columnists/ralph_mathekga/when-the-courts-have-to-babysit-government-20170508

news24
COLUMNISTS Ralph Mathekga
When the courts have to babysit government
The relationship between the executive and the judicial branches of government is becoming tense. In a
number of occasions, the judiciary has had to intervene in the exercise of executive powers. Recent
examples include the court having to intervene in the government’s decision to procure a nuclear deal. In
another example, the court asked the President to explain his decision to reshuffle his cabinet, which saw
the minister of finance and his deputy being removed from their respective positions. In all these cases,
the court raised the question about the soundness of the executive’s decisions taken.
There is nothing fundamentally wrong with the tension between the executive and the judicial branches of
government. More often, the executive stretches its prerogative to implement public policy and finds itself
unduly encroaching on individuals’ liberties, denying people the right to determine some of the conditions
under which they would like to live. In such situations, people would approach the courts and ask for a
review of the conduct of the executive.
Such squabbles are the life and breathe of democracy, and they usually involve attempts by government to
contribute to the welfare of the people. People then go to courts and ask for a review of government
decisions or policies.
The squabbles between the executive and the judiciary in South Africa, however, seem not to involve how
to extend the welfare of the people. In South Africa, the judiciary has become the last line of defense
when it comes to stopping the executive from looting state resources.
This is when the courts say no to the nuclear deal because it seems to be in the interests of the few. Or
when the courts ask for an explanation of a Cabinet reshuffle because there is a compelling rumour that
refuses to go away that says the president is a puppet of the Gupta family, therefore could be acting in
their interest.

It is here that the counter majoritarian dilemma arises. As I have indicated, the entire process of
constituting the legislature and appointing members of the executive is seen as an extension of
the democratic process and therefore, these members are deemed to have been legitimately
placed in those positions in accordance with our democratic wishes. The appointment of the
judiciary is seen as markedly undemocratic because judges are appointed by the President after
the President receives recommendations from the Judicial Service Commission.

You will also note that when a matter concerning the constitutionality of legislation or conduct is
initiated, it almost always (unless it is especially urgent) starts in the High Court. In most cases
heard in the High Court, a single judge decides the case (see for example, the decision by
Judge Bashir Vally in the Gauteng North High Court relating to the President’s midnight cabinet
reshuffle of March 2017). This is often criticized as being highly undemocratic because it
conveys the impression that the power of one single judge who we may not know, may not like
and may not approve of, far exceeds the power of all 400 Members of Parliament who voted for
the President and therefore also exceeds the power of about 20 million South Africans who
indirectly voted for the ANC of which the President is the leader. This is why it is called the
counter majoritarian dilemma. Even when a case is decided by the Constitutional Court, there
are only 11 judges deciding the case.
Indeed, the reason why it is not a dilemma is because we the people (the majority) empowered
the drafters of the Constitution to include section 172, section 1, section 2, etc. into the

41
Constitution to enable the judiciary to declare the law or conduct invalid and unconstitutional so
that they can ensure that the Constitution is actually upheld and enforced.

When the courts adjudicate matters their principal task is to ensure adherence to the rule of law,
which is founded on the following principles:
➢ the government/state must act in terms of pre-announced/clear and general rules
➢ rules that are created, must be enforced, and disputes pertaining to such rules, are then
adjudicated by independent/impartial institutions (ie: courts)
➢ no rights of people may be deprived/limited via wide/arbitrary discretionary powers of the state
➢ no one is above the law: all persons/institutions including the state must act in terms of
powers granted by law and comply with law
➢ the state/others must act lawfully i.e. must comply with the law and law must comply with the
legality requirement.
Therefore, as one of the three branches of state, the judiciary does not have unlimited powers
and must always be sensitive to the need to refrain from undue interference with the functional
independence of other branches of government. Courts should not interfere in the processes of
other branches of government unless otherwise authorised by the Constitution. It is therefore not
for the Court to prescribe to Parliament what structures or measures to establish or employ
respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at
the thought of asserting their authority, whenever it is constitutionally permissible to do so,
irrespective of the issues or who is involved. In general, therefore, the courts will only go so far
as to declare law or conduct unconstitutional and leave it to Parliament or the executive to
decide for themselves how they wish to rectify the invalid legislation or conduct. We have seen
this in cases such as:

Glenister II

Fourie v Minister of Home Affairs

Similarly, in cases where it is the executive that has failed to perform a constitutional function,
the judiciary respects the expertise, experience and specialized knowledge of the executive and
is deferent to the executive in deciding how best to implement the law. However, if it is clear that
the executive has wilfully disobeyed the constitution, then the judiciary will make an order that
the executive complies immediately in the form that the court deems just and appropriate, such as:

Treatment Action Campaign HIV+ ! = HIV-

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5.3 Chapter 3

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5.4 Chapter 4

THE NATIONAL LEGISLATURE

The unambiguous message conveyed thus far is that the separation of powers doctrine is essential to curtail the abuse of
public power by distributing it among the legislative, executive and judicial branches. It is against this backdrop that the
structure, composition, functions, powers, duties and procedures of Parliament (the legislature) is discussed, given the
compelling words of the Court in the case of EFF v Speaker of the National Assembly (2016) at para 22: ‘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’.

An electoral system is a system that sets out the rules for electing political representatives. It is the 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. The Constitution establishes a parliamentary system of
government and a system of party government at the same time. This means that political parties are central to our
democratic system of government and the majority party in the NA forms the government – and also influences policy and
the actions of the elected representatives in the legislature.

South Africa currently has a party proportional representation electoral system. Under a list system of proportional
representation, it is parties that the electorate votes for, and parties which must be accountable to the electorate. The right
to vote is thus an essential part of understanding the composition and function of the legislature. Section 19(3) of the
Constitution guarantees the right of every eligible adult citizen to vote. In August and Another v Electoral Commission and

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Others 1999 (3) SA 1 (CC), the Court pointed out that the right to vote in section 19(2) of the Constitution cannot be taken
away from any citizen arbitrarily or in a way that is not reasonable and justifiable in an open and democratic society. There is
a direct relationship between the right to vote and how the National Assembly (NA) is constituted. Prior to national and
provincial elections, each political party holds a national elective conference. During this conference, the members of the
political parties nominate a list of candidates, ranking them in order of preference. Consequently, voters vote for a political
party and not for individual candidates.

A comparison of the advantages versus the disadvantages of the party proportional representation system

Advantages
1. is simple and easy to administer
2. reflects the wishes of the voters more accurately than other
electoral systems
3. it is easier for small parties to be represented in the NA
4. eliminates possible artificial constituency boundaries
(gerrymandering) that dilutes political support in certain
constituencies
5. it produces more inclusive legislatures and ensures better
representation for marginalised or discriminated groups such
as women and minorities
6. limits ‘pork-barrel’ politics, where politicians ‘buy’ the
support of voters in specific constituencies by pressuring the
legislature and the executive to spend public money on
project such as clinics, roads, schools and so on.
Disadvantages
1. it does not create a strong link between voters and their
elected representatives which may cause a lack of
responsiveness to voters because it is the political party as a
whole that needs to respond
2. the leaders of political parties may have disproportionate
influence over the way in which
individual MPs behave. Too much power is given to the leaders
of a party who may be able to determine or influence who
appears on electoral lists.
3. it potentially produces a less effective and stable government,
especially where one political party is not dominant, sometimes
forcing fragile coalition governments as we've seen in the local
spheres of Tshwane, Johannesburg and Gqeberha.

In Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) paras 42-3, the Court emphasised
that:
[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.

The Structure of Parliament

Parliament is bicameral (ie: composed of 2 houses):

NA NCOP
1. The National Assembly (NA). This is the more dominant of the two houses of parliament, evident by its far-reaching powers
2. The National Council of Provinces (NCOP). 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

Bicameralism is intended to ensure better democratic representation of the electorate in a heterogeneous society such as
South Africa. It also assists in alleviating Parliament’s workload and promoting a thorough consideration of matters before
Parliament because the NA is responsible for issues of national concern while the NCOP represents the interests of the 9
different provinces. Since they represent different interests, they act as a check on one another. Despite the dominance of
political parties what cannot be ignored is that when MPs are elected, they are required to swear or affirm faithfulness to the
Republic and obedience to the Constitution and laws (not to their particular political parties). Therefore, in the event of
conflict between upholding constitutional values and party loyalty, the duty to serve the people outweighs party political
considerations.

55
 Critically consider the complex relationship between the important consequences of Parliamentary
government and the Courts words in the UDM judgment:

The Constitutional Court confirmed in United Democratic Movement v Speaker of the National Assembly and Others 2017
(5) SA 300 (CC) para 78-79 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'.
1. The majority party in Parliament forms the government
Parliamentary government entails that support of the majority party in Parliament is required to form the government. The
executive requires the continued support of the majority of the legislature to survive, providing a strong incentive to
unquestioningly ‘toe the party line’. If MPs from the governing party fail to respect party discipline and vote 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.

2. Strict party discipline

We inherited the convention of strict party discipline from the Westminster system. This parliamentary culture places severe
restrictions on individual MPs not to disobey party leaders when they engage in legislative or executive action.

3. Internal party discipline / democratic centralism

The internal culture of South African political parties emphasizes party discipline, that rewards party members who demonstrate
respect and loyalty to the party, its leadership, and the decisions democratically arrived at by that party. Democratic centralism
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 unquestioningly support the decision and not act in a way that would undermine the
authority of the party and the decision taken.

In South Africa the party proportional representation electoral system which has been used from 1994 enabled
party leaders to enforce strict discipline among MPs because MPs 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 political
parties. MPs are largely beholden to the leadership of their political parties and 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 bound by that
decision and must follow it, or risk being accused of being "counter revolutionary", as happened to the late
former ANC MP Ben Turok.

Whereas South Africa has used the party proportional representation electoral system from 1994, the case of New Nation
Movement NPC and Others v President of the Republic of South Africa and Others 2020 (8) BCLR 950 (CC) has changed the
position quite substantially. In fact, the Constitutional Court found that the Electoral Act which only allowed political parties
to participate in elections 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 pertinent facts of
the case are as follows: New Nation Movement is not a political party but is an association of persons sharing common
interests [albeit of a political nature]. An important reason why New Nation Movement did not wish to form a political party
is because in the words of the Constitutional Court itself: ‘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'.
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 dignity and a person might in good conscience be opposed to
party politics and party discipline (among any number of other reasons).

New Nation Movement applied to the High Court in Cape Town asking the court to declare section 57A of Schedule 1A to the
Electoral Act 73 of 1998 to be unconstitutional and invalid on the ground that it 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 contradict
the 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. The High
Court dismissed the application, so New Nation Movement appealed directly to the Constitutional Court where the majority
of the Constitutional Court upheld the appeal and found that section 57A read together with Schedule 1A were
unconstitutional and invalid to the extent that it prevented adult citizens from standing for political office as independent
candidates. With due regard to the separation of powers doctrine, the Constitutional Court held that the declaration of

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invalidity would have no retrospective effect and that the declaration of invalidity 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. We can therefore
anticipate that within approximately 12 months, an amended Electoral Act will become operative.

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?

The Court held that it should be interpreted broadly, for the following reasons:
1. that the narrow interpretation conflicted with the right to make political choices guaranteed in section 19(1) of the
Constitution, which provides that 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 from a political party or cause.

The Court asserted that the reference to political parties does not automatically exclude the general right ‘to make political
choices’. Instead, the general right goes further and includes, for example, the right not to form or join political parties. What
the Court made clear is that the provisions of the Constitution must be interpreted in a manner that harmonises them and
not in a manner that brings them into conflict. The simplest way of achieving this goal, the Court concluded, would be to
adopt the broad interpretation of section 19(3)(b). If interpreted narrowly, section 19(3)(b) 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.

2. that the narrow interpretation conflicted with the right to freedom of association guaranteed in section 18 of the
Constitution because section 18 provides that:
everyone 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 If they do not
wish to.

3. 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. The Court maintained that while it is true that section 157(2)(a) does conflict with the
broad interpretation of section 19(3)(b), 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 specific circumstances, namely elections for municipal councils meaning that there is 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. Moreover, section 19 is the primary normative source of people’s political rights and continues to be
the fundamental norm on them, not section 157(2)(a), which applies exclusively to municipal elections.

The National Assembly

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. The President will be elected from among the members elected to the NA at this
sitting. At the same sitting, the NA will also elect a Speaker and a Deputy Speaker from among its members.

The composition of the NA

The NA consists of 400 members. The number of 400 was established in terms of section 3 of the Electoral Act 73 of 1998.
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'. The NA is
constituted by members of each of the political parties according to the proportion (percentage) of votes received.
Therefore, the higher up on a political party’s electoral list a person is ranked, the more likely it is that he or she will be
elected to the National Assembly. Put simply, if a party obtained 50% of the vote, it is allocated 200 of the 400 seats in the
NA (with the first 200 names on the list becoming MPs).

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National Assembly’s functions and role
1. The NA elects and can also dismiss the President
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

2. It passes legislation
Parliament 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 Constitution;
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;
c) to assign any of its powers, except the power to amend the Constitution, to any legislative body in another sphere of
government.

3. It serves as a national forum for public consideration of issues

It considers, amends, rejects or passes legislation with due regard to the needs and concerns of the broader
South African public. In other words, all legislation must articulate the aspirations, concerns and desires of all
South Africans, especially of the poorest and most vulnerable. The NA and the NCOP can make joint rules for when the
NA and NCOP conduct joint business, such as when they consider and pass legislation. When the NA takes a vote on a Bill, a
majority of the members (at least 201 members) of the NA must be present. When it takes a vote on another
question before the NA, at least one third of the members (134 members) must be present.
4. The 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.
It is thus an arena where the political parties debate the issues of the day.
The 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.

5. The NA must scrutinize and hold all executive organs of state in the national sphere of government
accountable to it
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.
The NA must approve a decision by the Treasury to stop the transfer of funds to a province or a decision by
the President to declare a state of national defence.

6. The NA must maintain oversight of the exercise of national executive authority, including the
implementation of legislation and especially the authority to use state resources and the
spending of public money
Members of Cabinet are accountable to Parliament and must report to Parliament regularly.
This is achieved through the establishment of committees, in terms of section 57(2)(a) and (b) of
the Constitution. 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.
Portfolio Committees are set up to process legislation emanating from each Cabinet portfolio and to oversee the work
done by the executive in each of these portfolios. In practice, 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. Political
parties appoint the members of a committee to which they are entitled and advise the Speaker accordingly. The
committee elects Its chairperson. To ensure fiscal accountability, the Chairperson of the Standing Committee on Public
Accounts has traditionally been a member of one of the opposition parties. The Chairpersons of all other standing
committees are generally members of the majority party.
7. The NA plays a decisive role in various other appointments. For example, the appointment of the
Commissioners of the Chapter 9 institutions designed to support constitutional democracy

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The powers of the Speaker of the National Assembly:

The Speaker or, in his or her absence, the Deputy Speaker, presides over the NA.
1. The primary public role of the Speaker is to preside over debates in the NA.
2. 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.
3. 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.
4. 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.
5. 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.

In the case of Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) the Constitutional Court
noted at para 95 that when the Public Protector handed her report to the Speaker of the National Assembly, ‘[i]t ought
therefore to have triggered into operation the National Assembly’s obligation to scrutinise and oversee executive action and
to hold the President accountable, as a member of the Executive’. Instead, the National Assembly (possibly at the behest of
the Speaker) set up an Ad Hoc committee to examine the Public Protector’s report and further nominated the Minister of
Police to do further investigations based on the findings of the Public Protector. After considering the Ad Hoc committee’s
report and the report of the Minister of Police, which exonerated the President, Parliament resolved to absolve the President
of all liability.

The power of the Speaker was clearly enunciated in the case of United Democratic Movement v Speaker of the National
Assembly and Others 2017 (5) SA 300 (CC) (paras 85 to 87) where the Court confirmed that: ‘the power that vests in the
Speaker … belongs to the people and must thus not be exercised arbitrarily or whimsically’. More precisely, 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.

Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 (6) SA 588 (CC) and Mazibuko v Sisulu and
Another 2013 (6) SA 249 (CC) are cases that prove that when any rules of the NA violate the Constitution, they must be
declared invalid and the situation rectified. Even a failure to make rules on a particular topic is a violation of the Constitution
as we saw in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC).
Eligibility for election to the National Assembly
1. Once elected, a member of the NA will normally serve for a full term of five years until the next election
2. 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.
Citizens that are not eligible to become or remain members of the NA are:
1. permanent delegates to the NCOP or members of a provincial legislature or a municipal council
2. unrehabilitated insolvents
3. anyone declared to be of unsound mind by a court of the Republic
4. anyone who, after the February 1997, 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
5. 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), or ceases to be a member of the party that nominated him or her, will automatically lose his or her seat
in the NA
6. If they cross the floor to another party or if they are expelled from their party they lose their seat in the NA.

Sittings and the dissolution of the NA

The NA is elected for a term of five years. The NA may determine the time and duration of its other sittings and its recess
periods. However, there are at least two situations in which an election could be held before the five-year term has elapsed:
1. 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

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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’. 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.
2. 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.
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.

Quorums and voting requirements/procedures:

Section 59 of the Constitution provides the quorums (the minimum number of MPs) required for decisions of the NA.
1. When the NA takes a vote on another question before the NA and 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. The Speaker or Deputy Speaker has no deliberative vote, but must cast a deciding vote when there is an
equal number of votes on each side of a question.
2. In the case of Bills or amendments to Bills a majority of the members (at least 201 members: 50% + 1) of the NA must be
present
3. In respect of any other questions which may come before the NA for a vote at least one third (134 which equals 33.3%) of
the members must be present
4. 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 (66.6%) of its members’. The presiding member (Speaker) may cast a
deliberative vote when a matter requiring a two-thirds majority to pass is before the NA.
5. An amendment to section 1 of the Constitution requires a supporting vote of at least 75% of the members of the NA.
Openness and transparency:
The Constitution requires that the NA conduct its business in an open manner and hold sittings and those of their
committees in public.
Doctors for Life 2006 (6) SA 416 (CC)
At paras 137 and 138 the Constitutional Court held that: participation by the public on a continuous basis provides vitality to
the functioning of representative democracy. It encourages citizens 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. The opportunity to submit representations and
submissions ensures that the public has a say in the law-making process.

It is in this same case (at para 300) that the Court held that any failure to afford the public the ability to participate in
proceedings of the NA would have grave implications for the validity of any conduct in terms of which a law is passed.
Primedia Broadcasting (a division of Primedia (Pty) Ltd) v Speaker of the NA 2017 (1) SA 572 (SCA) para 31
At the beginning of the State of the Nation Address in February 2015, the State Security Agency (acting without the
authority/permission of Parliament) jammed the telecommunication signals. MPs from the Economic Freedom Fighters
disrupted proceedings but this was obviously not broadcast because jamming device resulted In the broadcast feed showing
only the face of the Speaker of the NA. Parliamentary officials then tried to force EFF Members out of the Parliamentary
chamber and this was challenged on the grounds that It was an Impermissible limitation on access to Parliament. The SCA
held 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’. Understandably, the
SCA ruled that the use of the jamming device was unconstitutional and invalid.

Section 59 of the Constitution prohibits the NA 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. This must be read in conjunction with Rule
57(1) of the Rules of the NA, which regulates possible limits on the openness and transparency of the NA by stating visitors
must be admitted to those parts of the NA (public galleries) that have been set apart for that purpose and only the Speaker
may regulate same. The essential facts of the Primedia case coincide with the case of DA v Speaker of the NA 2016 (3) SA

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487 (CC). Four minutes in to the President’s 2015 State of the Nation Address, a member of the EFF rose on a point of
privilege, stating “may we ask the President when he is going to pay back the money in terms of what the Public Protector
has said … will he pay by EFT, cash or e-wallet?”

Consequently, the Speaker asked the Sergeant at Arms and Protection Service Officers to remove those members from
Parliament in terms of section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act.
Section 11 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. The forcible removal of EFF members ensued. The DA challenged the constitutionality of section 11 and
the Constitutional Court ultimately agreed that the purpose underlying the parliamentary privilege of freedom of speech 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.

It is imperative that the individual members feel free to participate without the threat of being arrested or imprisoned or
sued. However, it is how the Constitutional Court Interpreted section 11 that Is significant, when it held:
The concept of a disturbance has 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. Furthermore,
the Constitutional Court found that section 11 still infringed the parliamentary privilege of freedom of speech because it
had to be read with sections 7 and 27 of the Parliamentary Privileges and Immunities 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. Moreover, section 11 was invalid because section 58(1) of the Constitution provides 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.

Powers and privileges of MPs:

Cabinet Ministers, Deputy Ministers and members of the NA and NCOP enjoy complete 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. This rule exists to ensure that those in the NA are 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. although
this right is not absolute. 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 comply with the Constitution.
This was put to the test in the de Lille case where the High Court held that under a supreme Constitution, the exercise of
parliamentary privilege is subject to judicial review because the NA is an organ of state and therefore bound by the Bill of
Rights. All its decisions and acts are subject to the Constitution and the Bill of Rights. Accordingly, 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 and redress may be sought by an aggrieved party from law courts.
At the time, the NA therefore had no constitutional authority to suspend Patricia De Lille, but the Rules of the NA have 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 (NA Rules 70 to 74). Moreover, an MP 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 NA may exclude a member who engages in this sort of behaviour
Holding the executive accountable
Parliament is duty bound, in certain circumstances, to hold the President (and other members of the executive) accountable,
even extending to the possibility of the President and members of the executive being voted out of office through a motion
of no confidence or impeachment. In the 2017 UDM case at para 33, the Court stated that:
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
Parliament is required to put effective mechanisms in place to achieve that objective. In the UDM case the court explained at
para 10 that:
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.

It is important to note 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, as it did in Economic Freedom Fighters and Others v Speaker of the National Assembly
and Another 2018 (2) SA 571 (CC) where the Court held that the NA had not taken ‘appropriate action’ against the President

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consequent upon the Public Protector having found that the President had unduly benefited when non-security-related
upgrades had been made to Nkandla out of public funds and that he should pay back what was owed. Due to the Public
Protector's finding, minority parties had tabled a motion to impeach the President in terms of section 89 of the Constitution,
but the NA failed to follow the required procedure to deal with the motion, thereby failing to comply with section 89(1).
However, what is not clear is whether the Constitutional Court would be overstepping the boundaries of separation of
powers if it made an order that the NA should institute removal proceedings against the President in the absence of a motion
to impeach tabled by a minority party.

How does the NA hold the executive accountable and sanction members who abuse their power or fail to fulfil their
mandate?
1. Parliament has the power 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 and is given effect to by the Rules of the NA that permits members of the NA to pose questions and
receive oral answers from Ministers, the Deputy President and the President.

Not unlike a court of law, section 56 of the Constitution provides that the NA 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 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 specifically provide for the powers of their committees to enable them to hold members of the executive
accountable.

2. 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

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. The NA has distinct/exclusive powers to
ensure democratic control over the executive. 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 (66.6%) 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 power is based on objective reasons unrelated to the political support enjoyed by the President.
The NA plays a special role in that section 102(2) of the Constitution 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. If the motion is successful, the President
and the other members of the Cabinet and any Deputy Ministers must resign. 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 2013 (6) SA 249 (CC)
the Constitutional Court declared Chapter 12 of the Rules of the NA invalid on the ground that it purported to do just that.
Lindiwe Mazibuko, 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 met to consider the proposed motion of no confidence, but 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. As Moseneke DCJ stated at para 43: a
motion of no confidence is indispensible to our democracy: ' 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'. At para 44, Moseneke DCJ continued by
stating: 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’.

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According to para 66 of the Mazibuko case: 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’. In other words, the NA
must ‘take prompt and reasonable steps to ensure that the motion is scheduled, debated and voted on without undue delay’.

The ANC have only had to resort to scheduling a motion of no confidence on one occasion. When President Mbeki was
recalled, he resigned. However, after recalling former President Zuma, he refused to resign. The ANC then announced that it
had schedule a motion of no confidence for the 15 February 2018, forcing President Zuma to announce his resignation with
Immediate effect on 14 February 2018.

Oversight over the executive

Oversight 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 in pursuit of improved service delivery for the achievement of a better quality of life for all
citizens. This task includes overseeing the implementation of legislation.

In conducting oversight, the Parliamentary Portfolio 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. Therefore, 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.

The limits on the powers of the NA:

1. The NA must act in an open and transparent manner and cannot make rules contrary to the constitutional requirement of
openness
2. Members of the NA as well as Cabinet members who appear before them enjoy certain privileges which cannot be
curtailed by Parliament or anyone else
3. The NA is required to facilitate public involvement in their legislative and other processes.

The National Council of Provinces (NCOP)

The National Council of Provinces elects a Chairperson and two Deputy Chairpersons of the NCOP. The NCOP is also required
to establish committees to oversee its work, which is done in terms of its rules. 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
’. Parliament enacted the Mandating Procedures of Provinces Act, but in effect the majority party in the provincial legislature
has the power to decide how the vote of the provincial delegation will be exercised.
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.

Composition of the NCOP

The NCOP is composed of 90 members, representing a single delegation from each of the nine provinces, each consisting of
ten delegates. 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.
If the ANC received 60% of the seats in a legislature, it would get 6 seats
If the DA received 30% of the seats, it would get 3 seats
If the EFF received 10% of the seats, it would get 1 seat
The 10 members of each provincial delegation are classified as either special or permanent delegates: 4 are special delegates
and 6 are permanent delegates (the composition of the latter can be changed ‘from time to time’ depending on their
expertise or special knowledge of a matter being considered by the NCOP) in each provincial delegation.

The 4 special delegates are: the Premier; with the other 3 delegates selected from among the other members.
The Premier heads the delegation. These 4 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.
The 6 permanent delegates perform an important function: providing 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. The permanent delegates cannot simultaneously be members
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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. A permanent delegate will lose his membership of the NCOP if the provincial
legislature passes a motion of no confidence in that delegate and is recalled by the party that nominated him.

Functions of the NCOP:

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. Therefore, the
NCOP 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. As stated in the Doctors for Life case at para 79, the NCOP
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.

The wide-ranging power of the NCOP:

The NCOP has the power to determine and control its own internal arrangements, proceedings and procedures, including the
composition, powers and functioning of committees.
In terms of section 69 of the Constitution the NCOP can summon any person, including the President and Cabinet Ministers,
to:
1. give evidence under oath or affirmation, or to produce documents
2. require any person/institution to report to it
3. compel any person/institution to comply with a summons or requirement to produce documents (subject to the
committee first having satisfied the Speaker that the evidence of such witness will be material to the enquiry)
4. receive petitions, representations or submissions from any interested persons or institutions.

Specific powers of the NCOP:

This varies 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. In all other cases – including when amending the
Constitution or dealing with Bills affecting the provinces – each provincial delegation casts a single vote under instruction
(mandate) from the provincial legislature represented by the delegation.

Oversight
The NCOP must review the intervention of the national executive in a province and the provincial executive in a municipality.
It must approve a decision by the Treasury to stop the transfer of funds to a province or a decision by the President to
declare a state of national defence. Additionally, the NCOP resolves disputes concerning the administrative capacity of a
province.

The limits on the powers of the NCOP:

1. The NCOP must act in an open and transparent manner and cannot make rules contrary to the constitutional requirement
of openness
2. Members of the NCOP as well as Cabinet members who appear it enjoy certain privileges which cannot be curtailed
3. The NCOP is required to facilitate public involvement in its legislative and other processes.

The Passing of Legislation

The notion of co-operative [multisphere] government, enshrined in Chapter 3 of the Constitution, lies at the heart of the law-
making process in Parliament. This need for co-operation is closely linked with the fact that the legislative process is based on
the assumption that provincial interests will be taken into account in the national law-making process whenever such
interests arise. 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.

Competence to pass legislation

Schedule 4 of the Constitution contains a list of concurrent national and provincial powers. Therefore, 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.

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Schedule 5 contains a list of exclusive provincial powers. However, the provincial legislatures often find it very difficult to
operate effectively because:
(1) they are far removed from the centre of political power in Parliament,
(2) 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.

Different types of Bills and the Tagging of Bills

Bills must be classified or tagged into one of the respective categories before it can be introduced in Parliament. This has an
impact on the procedures to be followed. 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. The
function of the JTM is, among other things, to make final rulings as to the classification of Bills.
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.
Tongoane and Others v National Minister for Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC)
In this case, the ‘substantial measure’ test for tagging of Bills was established. What matters is the Bill's purpose and whether
the provisions of the Bill ‘in substantial measure fall within a functional area’ which the Constitution empowers provinces to
legislate on. 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 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 (paras 45-60).

1. Bills amending the Constitution (s74)

These 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.

S1 can only be changed with the support of 75% of the NA and at least 6 of the 9 provinces. Bills amending the Bill of Rights
can only be changed with the support of 2/3 of the NA and 6 of the 9 provincial delegations in the NCOP. Any other provision
of the Constitution may be amended by a Bill passed by the NA with a supporting vote of at least 2/3 of its members. The
support of 6 of the 9 provinces 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. For example, if a Bill intends altering a provincial
boundary, the NCOP may not pass a Bill unless it has been approved by the legislature of the affected province, and 6 of the 9
provinces support the amendment.
2. ordinary Bills not affecting provinces (s75)
When a Bill is tagged as a s75 Bill it can only be introduced in the NA (not in the NCOP). 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 1/3 of the delegates being present. A s75 Bill can, in effect, be passed by the NA without support by
the NCOP 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 NCOP could then conceivably try to obstruct the legislative
programme of the majority party in the NA.

The NCOP has 3 options: it can pass the Bill; pass the Bill subject to proposed amendments; or reject the Bill. If the NCOP
passes the Bill without 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. However,
the NA has the power to override the NCOP amendments by passing the original Bill. The amendments made by the NCOP
will be disregarded and the Bill passed by the NA will be sent to the President for assent.
3. ordinary Bills affecting provinces (s76)
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. It will also be tagged as a s76 Bill if it purports to intervene in
Schedule 5 matters (in terms of s44(2)) and other financial matters affecting the provinces. A Bill dealing with the seat of
Parliament must be similarly tagged. If the provisions of a Bill in substantial measure fall within the functional area listed in
Schedule 4, it will be dealt with under s76. Tagging a Bill as a s76 Bill is important as this gives more weight to the position of
the NCOP in the passing of the Bill.

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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.
4. money Bills (s77)
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.
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.

The Money Bills Amendment Procedure and Related Matters Act 9 of 2009 applies special procedures to amend a money Bill.
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.

The composition and role of the Mediation Committee

A Mediation Committee exists to facilitate co-operation, reconcile differences and seek consensus between the two Houses
of Parliament in line with the principle of co-operative government. It consists of:
➢ 9 members of the NA elected by the NA. Each political party with seats in the Assembly is proportionally
represented on the Committee
➢ another 9 delegates – 1 from each provincial delegation in the NCOP. These delegates are from the political party
with a majority of delegates in the NCOP delegation.

The purpose of the Mediation Committee is to 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. Thus, provincial delegations with fewer voters have the same power as
provincial delegations of large provinces.

A decision can only be made if at least 5 representatives each of the NA and NCOP agree to support it. An important proviso
is that the NA has an override power if it supports a Bill with a 2/3 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. The options available to the Mediation Committee are:
1) 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 but Bills first introduced in the NCOP cannot ever be passed over the objections
of the NCOP with a 2/3 majority in the NA, which is the case if a Bill was first introduced and passed in the NA.
2) 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.
3) 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.
4) 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 2/3 of its members.
It must be noted that South Africa does not have a strict form of separation of powers and the executive plays a dominant
and important role in the legislative process, as displayed in the enumeration of the processes involved in passing legislation
in the schematic representation.
Legislature Executive Judiciary
1] Policy is formulated (s85(2)(b)) via
various channels, including through
Nedlac, internal party discussions as
well as consultation with
An individual MP may also introduce affected/interested parties In Oriani-Ambrosini the Constitutional
legislation in terms of section 73(2) of the Court decided that the rules of the NA
Constitution 2] The proposed legislation is then were unconstitutional because they
discussed in a Green Paper. Public did not allow ordinary MPs to
introduce legislation

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hearings are held on the matter In Doctors for Life, Matatiele

3] A White Paper is prepared and
public hearings are held concerning
the proposed legislation
4] A draft of the Bill as well as an
explanatory memorandum is prepared
by the Minister responsible for the
issue (in terms of s85(2)(d)). Cabinet
then approves it
Municipality v President of the
Republic of South Africa and Merafong
it was held that Parliament must take
reasonable steps to facilitate public
involvement in the law-making
process and that without ensuring
public participation, the legislation is
fatally flawed because the correct
procedure was not followed

5] Once Cabinet has approved the

draft Bill, the state law advisers certify
that the law is constitutional before it
is submitted to Parliament In Glenister 1 (2009), it was held that
6] The Cabinet Minister responsible for the judiciary may not intervened in the
the Bill (eg: education) usually first legislative process until the legislature
introduces the Bill in the National has completed the drafting of the law
Assembly (or the National Council of (unless there is no other effective
Provinces). This is the first reading remedy and harm caused would be
material and irreversible)
7] The Bill is referred to the appropriate
portfolio committee for review and
amendment after facilitation of public
involvement (s59). This is the second
reading

8] If the National Assembly passes the Bill,

it is forwarded to the National Council of
Provinces for its assent

9] If the Bill was approved by the National

Council of Provinces, it is forwarded to
the National Assembly for its assent

10] Once both Houses of Parliament have

passed the Bill, it is presented to the
President for signature (s79(1) as read
with s84(2)(a))
12] If after referring the Bill back to the
NA, the President is still not satisfied as
to the constitutionality of a Bill because
his or her reservations concerning the
constitutionality of the Bill are not fully
accommodated by Parliament, he may
refer it to the Constitutional Court
14] After a Bill has been passed by
Parliament and signed into law by the
President, all or part of the Act can be
challenged if at least 1/3 of the members
11] If the President is not convinced
that the Bill is constitutional, he may
refer it back to the NA for
reconsideration (s79(1) as read with
s85(2(b)). The President must stipulate In Ex Parte President of the Republic:
what these reservations are In re: Constitutionality of the Liquor
Bill 2000 (1) SA 732 (CC) the
Constitutional Court explored the
circumstances under which the
President is allowed to refer a Bill to
the Court, and, second, the scope of
the Court’s power to consider the
constitutionality of the Bill:
1. Is the Court required to consider
13] Once the Constitutional Court has only the reservations that the
confirmed the constitutionality of the President had expressed, or
Bill, the President must sign it could/should it direct its attention
diligently and without delay (s237). It more widely? Yes
then becomes an Act of Parliament 2. Must the Court, in determining the
Bill’s ‘constitutionality’, examine
every provision of the Bill so as to

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 of the NA support this challenge and if it certify conclusively that in every part
is made within 30 days of the date on it accords with the
which the President assented to and Constitution? No
signed the Act 3. Does the Court’s finding regarding
the Bill’s constitutionality preclude or
restrict later constitutional
adjudication regarding its provisions
once enacted? No

In such an instance the Constitutional

Court is given the power to stall the
implementation of the Act 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

Why is legislation usually initiated and prepared by the responsible Cabinet member?
1. South Africa has been a one-party-dominant political system since 1994. Many leaders of the dominant party serve in
Cabinet which, in turn, initiates legislation in accordance with the mandate of the majority party.
2. 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.
3. 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’.
4. 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.
5. 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.

Public involvement in the legislative and other processes of the NA and the NCOP:
The importance of participatory democracy, in conjunction with representative and constitutional democracy was clearly
articulated in the Doctors for Life case. At para 81 the Court declared that the local government is also involved indirectly in
law-making 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. In para 82, the Court confirmed that:
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.

At para 110 the Court explained that South Africa's international law obligations are reflected in the very nature of our
constitutional democracy. The international law right to political participation [contained in the International Covenant on
Civil and Political Rights] reflects a shared notion that a nation’s sovereign authority belongs to its citizens, who ‘should
participate in government – though their participation may vary in degree’.

At para 209, the Court held that 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
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. Indeed, 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) of the Constitution, and any law enacted in such a procedurally flawed way
would be null and void and of no effect.

Clearly, Parliament may not operate in secret: they must provide notice of and information about the legislation under
consideration and the opportunities for participation that are available to ensure an opportunity for effective participation in
the process. Parliament has a positive duty to provide meaningful opportunities for public participation in the law-making
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process, as well as take measures to ensure that people have the ability to take advantage of the opportunities provided. The
test is whether the legislature had acted reasonably or not in facilitating pubic Involvement. Reasonableness is an objective
standard which is sensitive to the facts and circumstances of a particular case. It is context specific and is determined by
examining factors such as:
1. The nature and importance of the legislation and the intensity of its impact on the public.
2. What is practically possible, with reference to time and expense, which relate to the efficiency of the law-making process.
But saving money and time cannot justify inadequate opportunities for public involvement.
3. What Parliament deems appropriate public involvement given the legislation’s content, importance and urgency.

Participatory democracy requires that the NA and the NCOP must facilitate public involvement in the legislative and other
processes of Parliament. 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. 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. Strategies designed to guarantee public involvement in the legislative
process includes:
1. Lobbying 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
2. 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
3. Petitions allow individuals or groups to raise issues in a formal way without having to go through a particular member of
the legislature
4. 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

A long list of cases concerns the fundamental importance of public involvement in the legislative processes of Parliament and
confirm that the failure to involve the public in the legislative process renders the legislation invalid. These include:
▪ Matatiele Municipality and Others v President of the Republic of South Africa and Others 2007 (1) BCLR 47 (CC)
▪ Merafong Demarcation Forum 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)
▪ South African Veterinary Association v Speaker of the National Assembly 2019 (2) BCLR 273 (CC)

Delegation of legislative authority to the executive or another legislature

Section 44(1)(a)(iii) of the Constitution confirms that Parliament may assign its legislative authority, except the power to amend
the Constitution, to any legislative body in another sphere of government. It is explicitly provided in the Constitution that
Parliament is allowed to assign its law-making power to provincial legislative and municipal councils, especially where the
national Parliament is of the view that a certain issue may be better dealt with by provincial legislatures, despite that topic falling
outside the exclusive or concurrent functional areas in which provincial legislatures have the competence to legislate.

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. 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. 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 wording of the Constitution will often give an indication of whether delegations would be permissible.

There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies.
In a modern state, Parliament cannot be expected to deal with all such matters itself and it is necessary for effective law making
to read this power into the Constitution. 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.
The 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. 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.

To illustrate the point, 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) section 16A(1) of the Local Government Transition Act provided that ‘the President
may amend this Act and any schedule thereto by proclamation in the gazette’. Parliament had therefore 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

69
of this section and the relevant proclamation on the basis that Parliament cannot delegate its law-making function to the
executive. The Court decided 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 .

Similarly, 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 2011 (5) SA 388 (CC), the Court indicated that it is necessary to consider ‘the nature and extent of
the delegation' (textual and contextual indicators to determine whether such a drastic delegation would be permitted in
terms of the separation of powers doctrine). In this case, 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 Condition of Employment
Act which permitted the further extension of the term of office of the Chief Justice if requested to do so by the President. The
President relied on this section to extend the term of office of the former Chief Justice, Sandile Ngcobo, but the
Constitutional Court declared the provision (and extension made thereby) unconstitutional because section 8(a) violated the
requirement for judicial independence as well as the principle of separation of powers.

5.5 Chapter 5
THE NATIONAL EXECUTIVE
Executive authority at the national level is vested in the President and the national executive (consisting of the Deputy
President, the members of the Cabinet and Deputy Ministers). When we refer to the executive, we mean the politicians who
are elected or appointed to form the government of the day – usually members of the majority party. In this chapter, we will
deal with the executive in the national sphere and leave the discussion of the executive at the provincial and local spheres
until Chapter 8.

On a conceptual level, what we are concerned with in this chapter is to understand how the government differs from the
state. You will recall that the state is a permanent and unchanging feature. What is temporary, however, is the government
because it could potentially change every five years when elections are held. The government is essentially formed by the
majority party in the NA and holds political authority based on the outcome of elections. For purposes of clarity, it is also
important to understand that the public administration – those persons employed in the various government departments
and organs of state and who are empowered to implement the laws and policies of the government – remain in those
positions irrespective of the outcome of the elections so they are also deemed to have a measure of permanency. Members
of the public service, on the other hand, are the persons who work for the national and provincial government departments
and thus hold executive powers.

By this stage it is clear that we cannot discuss the executive in isolation from the role of the legislature and the judiciary
because of South Africa’s system of checks and balances as an inherent part of the separation of powers.
Legislature Executive
After the general election, at its Within five days of being elected, the
first sitting, the NA elects the President must assume office by swearing or
President affirming faithfulness to the Republic and
obedience to the Constitution
The President and Cabinet are
As Head of the Executive, the President is
accountable to Parliament for the
responsible for appointing his Cabinet (Deputy
exercise of their powers and
President and Ministers) as well as reshuffling
performance of their functions
and dismissing Cabinet
Together with Cabinet, the President co-
The NA has the power to remove ordinates the functions of state departments
the President from office and administrations; performs any other
executive function provided in the
Constitution or law
Judiciary
“The President is a constitutional
being. In the Constitution the
President exists, moves and has his
being” (para 31 of EFF v Speaker of
the NA (EFF 1)
In DA v President of the Republic of
South Africa (2017) it was
highlighted that although the
President may shuffle his cabinet, he
is obliged to adhere to the rule of
law, because the President must act
rationally when performing his duties

The President
Election
The NA elects the President as both the Head of State and as the head of the national executive. 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

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be elected as President, thus voters indirectly confirm the majority party’s choice of leader, and therefore as President. In EFF
I the Court described the position of the President thus:
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. … 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.

The President as Head of State

As Head of State the President exercises his or her authority alone and usually need not consult the other members of the Cabinet.
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. In
this capacity, he cannot ‘abdicate’ the exercise of such a power by:
1. unlawfully delegating that power conferred on him or her as Head of State
2. acting ‘under dictation’ by merely following the instructions of another without applying his or her mind to the matter at hand
3. ‘passing the buck’ by referring the decision to somebody else.
Section 84(2) of the Constitution lists the Head of State powers the President performs. These are original constitutional
powers and have a generally narrow scope (because they are closely related to policy; not the implementation of legislation):
▪ 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 him to make as Head of State
▪ appoints commissions of enquiry
▪ 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.

Despite being Head of State, who is expressly prohibited from “abdicating” his responsibility or “passing the buck”, in
President of the Republic of South Africa v Public Protector, 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 (appoint a
commission of inquiry into state capture), 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 (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.

There is criticism of the above-mentioned case and it is argued that a more appropriate approach is that
contained 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), because 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 Constitutional Court declared invalid
the President’s appointment of the National Director of Public Prosecutions (NDPP), Shaun Abrahams, based on the invalidity
of the manner in which the former NDPP (Mxolisi Nxasana) vacated his office, that is, under duress from the President. 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’. Not long afterwards, a new President was elected, so the new President
(Ramaphosa) appointed Adv Shamilla Batohi as the NDPP as Nxasana could not be reinstated.

A good example is the SARFU case relating to the appointment of a commission of inquiry. When appointing such a
commission, no obligation is placed 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.
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.

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The SARFU judgment illustrates 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.

The President as head of the executive

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. 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. 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 (in consultation 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. The President also has the sole authority to
appoint the leader of government business in the NA from among the members of the NA.

The President exercises executive authority, in terms of which the decision must be in writing (and countersigned by the
relevant Cabinet member if the decision concerns another Cabinet member) by:
1) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise
2) developing and implementing national policy
3) co-ordinating the functions of state departments and administrations
4) preparing and initiating legislation
5) performing any other executive function provided for in the Constitution or in national legislation, which includes the
appointment of the National Director of Public Prosecutions, the Military Command of the National Defence Force, the
National Commissioner of the Police Service, the heads of the intelligence services, and the members of boards of state
owned entities (SOEs), such as the SABC.

A good example is the appointment of the Board of the South African Broadcasting Corporations (SABC) in terms of
section 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 (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. The court further held
that the SABC ‘must be free from executive control and influence’, 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’.

The limits on the powers of the President (and members of Cabinet and MECs)
The manner in which the President exercises his powers as head of state and head of the national executive is subject not
only to political constraints, but also to formal and substantive constitutional constraints 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.

Formal limits:
1) no independent discretion
1.1 when appointing judges of the High Court, the President has no discretion and must appoint the candidates
recommended by the Judicial Service Commission (JSC)
1.2 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’

2) appointing a person with the prescribed qualifications

2.1 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: the President can appoint only a fit and proper South
African citizen with due regard for his or her experience, conscientiousness and integrity (see the case of
Democratic Alliance v President of the Republic (the Menzi Simelane case”)

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2.2 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. He or she must also consult the JSC before appointing the
President and Deputy President of the Supreme Court of Appeal (SCA). Failure to adhere to these
requirements would render the appointments unlawful.

3) must be in writing
3.1 if it is taken in terms of legislation or has legal consequences
3.2 in addition, another Cabinet member must countersign a written decision by the President if that decision
concerns a function assigned to that other Cabinet member, such as the decision by the President to appoint
ambassadors, which would have to be countersigned by the Minister of International Relations.

Substantive limits:
1) Judicial review and enforcement
1.1 Courts can review the exercise of power by the President and set aside any decision by the President. This
conclusion flows from the fact that the Constitution is supreme and that the rule of law (and the doctrine of
legality) 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. These constraints would have no force and effect if
they could not be enforced by the courts. But, 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
2) Exercise of power is, in principle, subject to the provisions contained in the Bill of Rights
President of the Republic of South Africa and Another v Hugo: the fact that the arbitrary exercise of the power to
pardon may be a rarity is no ground for denying constitutional review.
3) Wide discretion
3.1 An example is cases where the President exercises his or her power to appoint or dismiss the Deputy
President and other members of the Cabinet. 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 difficult to see
how a court would be able to invoke the right to equality 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.
Masetlha v President of the Republic of South Africa and Another: one of the legal questions which arose was
whether the President was constitutionally authorised to dismiss the head of the National Intelligence Agency (NIA) because
the decision of the President to dismiss the head of the 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. 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 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.
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.

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The analogy used to substantiate the Masethla decision is contained in Premier, Province of Mpumalanga and
Another v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern
Transvaal (1999 (2) SA 91) where the court held that procedural fairness should not be made a requirement for the
exercise of every decision by the executive, with the court cautioning that:
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.
This does not mean that the President’s conduct is not reviewable. You will recall that South Africa’s Constitution is supreme,
therefore, 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. The conclusion rests on whether the President is exercising a discretion conferred on him in his capacity
as Head of State and the number people likely to be affected by the decision.

Term of office
After the 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. Should a vacancy occur in the Office of the President, an election
must take place not more than 30 days after a vacancy occurs. The President may not serve more than two full terms in
office, which will normally be 10 years (although if elected to fill a vacancy which has occurred between elections (such as the
situation with Cyril Ramaphosa), the period served until the next election does not count as part of a term.

The President appoints the members of the Cabinet who will govern the country for the electoral term of the NA (usually five
years). The President and members of the executive are the more powerful arm of government for as long as the President
has the support of the majority party in the NA. In his capacity as President of the majority political party (of which he would
usually be the leader), his position as party leader will grant him enormous influence over ordinary members of the party in
the NA and we know that South Africa has a tradition of strict party discipline.

Consider the facts and circumstances in the case of Democratic Alliance

v Minister of International Relations and Co-operation and Others (Council for the
Advancement of the South African Constitution as Intervening Party) 2017 (3) SA 212 (GP)
and explain how the executive misconstrued its powers or exercised powers that belonged
to another branch of the state

Removal of the President

The NA can remove the President from office in one of two ways: impeachment in terms of section 89(1) (although this term
is not used in the Constitution); or a motion of no confidence in terms of section 102 of the Constitution.

Given the serious consequences of removal from office, it is imperative that proper processes are followed. The
Constitutional Court criticized the NA’s consistent use of an ad hoc committee to determine such a momentous task as the
removal of a President and confirmed that the NA cannot authorise the commencement of the impeachment process
without being satisfied that sufficient reason exists and that such a finding was warranted on the facts. Importantly, even if
sufficient reason exists, 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.

1. Impeachment
The NA can remove the President from office only after it has established as a fact that 1 or more specified objective grounds
for the President's removal exists and it adopts a resolution to that effect with a supporting vote of at least a 2/3 majority.
These objective grounds are:
(1) a serious violation of the Constitution or the law
(2) serious misconduct
(3) inability to perform the functions of office.

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)’ and would be unconstitutional. Therefore, the Court held that the NA’s

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failure to adopt rules establishing a specific procedure in terms of which such a finding can be made was unconstitutional and
invalid. The NA was ordered to adopt rules specifically tailored for the section 89(1) removal process.

Removing the President in this manner has 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.

On the other hand, a President who has been removed from office for inability to perform the functions of this office, does
not lose these benefits and may not be barred from serving in any public office. Likewise, 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.

2. Political reasons
The President can also be removed from office for purely political reasons in terms of section 102(2) of the Constitution. In
order for this to occur, the NA, by a vote supported by a simple majority of its members must pass a motion of no confidence
in the President. This reflects the essentially parliamentary nature of our system of government as it signals that the
President and his Cabinet are required at all times to retain the support of the majority of members of the NA. Relevant in
this regard is what the Court held in the UDM case:
… 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

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. Since the case of in Mazibuko v Sisulu and Another 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. In the South African context 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'.

In practice, most MPs will follow the dictates of their parties to protect themselves from party retribution (unless they are
allowed to vote in a secret ballot). There have been significant developments in this regard: the Constitutional Court held in
the UDM v Speaker of the NA 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, although in accordance
with the principle of separation of powers and in accordance with the National Assembly’s power to determine and control
its internal arrangements, proceedings and procedures, 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 Deputy President and the rest of the Cabinet
Appointment of the Deputy President and members of Cabinet

The Deputy President must be appointed from among the members of the NA. All but 2 members of the Cabinet must
similarly be appointed from among the members of the NA, thus affirming the principle of parliamentary government and
creating the opportunity for the President to appoint members to the Cabinet with special skills or knowledge where the 2
members are not members of the NA. 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. It is an important
mechanism by which the legislature is able to check the exercise of power by the executive, emphasised by the provisions of
section 92(2) of the Constitution because this section indicates that members of the Cabinet are ‘accountable collectively and
individually to Parliament for the … performance of their functions’.

Powers of the Deputy President and the Cabinet

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.

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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. 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. They are required to administer their portfolios in accordance with the policy determined by the Cabinet.
Accountability by Members of the Cabinet
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.
Members of the Cabinet are collectively and individually accountable to Parliament for the exercise of their powers and
performance of their functions. They are correspondingly collectively accountable for the performance of the functions of the
national government and its policies. This principle of Cabinet solidarity emphasises the fact that executive authority in South
Africa is a collaborative venture and that members of Cabinet must act together and must share responsibility for their
actions. This notion of Cabinet solidarity finds application in 2 different ways:
1) 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.
2) Section 85(2) 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. 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 member accountable.

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’. Individual responsibility entails the following:
1) 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)
2) a duty to acknowledge that a mistake has been made and to promise to rectify the matter
3) a duty to resign if personal responsibility has been accepted.

Both the individual and collective responsibilities of Cabinet members are reinforced by section 96 of the Constitution which
regulates their ethical conduct. 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. In terms of section 2(1) of
the Executive Members’ Ethics Act, 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 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

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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.

Dismissal of the Deputy President and/or a member of Cabinet

When the President considers the dismissal of the Deputy President, Cabinet Ministers and Deputy Ministers, this decision is
political in nature, so 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 but is subject to the principle of legality (ie: the decision must be rational in
that it is supported by the relevant facts and reasons). Moreover, party political considerations often also play a role.
Members of Cabinet know that they are hired and can be fired at the will of the President suggesting 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.

Political reasons: section 102(1)

The NA can pass a vote of no confidence with a simple majority vote (50% + 1) 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.

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.

Recall the case of DA v President of the Republic of South Africa, which decision was
handed down in May 2017 and related to the midnight reshuffle of cabinet on 31 March 2017
and juxtapose it against the situation which arose in December 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.

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 What happens when a vacancy arises in the Office of the President?

A vacancy in the Office of the President will arise when:

1) the President is absent from the Republic

2) the President is otherwise unable to fulfil the duties of President, for example due to illness
3) 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 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. An acting President has all the responsibilities, powers and functions of the President.
The Deputy President will usually be appointed as the acting President when a vacancy arises, but if he is unavailable the
following office-bearers will act as President in the order set out below:
1. a Minister designated by the President, but if the President has not designated such a person
2. a Minister designated by the other members of the Cabinet, but if the Cabinet has not designated such a person
3. the Speaker of the NA until the NA designates one of its other members as acting President.

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.

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.

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.

Can the President be required to give evidence in court?

When a court requires evidence from the President, 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’. 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.

5.6 Chapter 6
JUDICIARY AND SEPARATION OF POWERS
The Colonial Context

• “The fact that the South African economy was sustained by slavery and serfdom for 250 years, and labour
repression and discrimination for another 100, testifies to the highly unequal distribution of power between
the class of white masters and employers on the one hand, and that of black servants and employees on
the other”

• It is worth mentioning that slavery, serfdom, repression and discrimination was implemented and sustained
through law enforced by the colonial and apartheid judiciary.

• White political and economic domination was achieved and sustained through law by the colonial and
apartheid judiciary.

• Black domination, subjugation, enslavement and genocide in South Africa was achieved through law and
the colonial and apartheid judiciary was complicit in certain instances, and directly enforced all these in
certain instances.

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• The story of white colonial and apartheid judiciary and the role that it played in ensuring black repression
and killing has not yet been told properly.

• Where it is told, it is mentioned as a footnote. The reason the story must be told, and properly so, is that it
has a direct impact on the judiciary today in the context of transformation in South Africa.

The Beginning of the Story

• 1652: A corrupt company, “with the reputation of being one of the most corrupt multinationals of all time,
called the Dutch East India Company (VOC) arrives at the shores of the Cape and establishes “a fortified
provision station at Table Bay in Cape Town in order to regulate the benefits that sailors had long derived
from Cape stopovers”.

• “When the VOC established its post at Table Bay, a large part of the Cape was inhabited by the Khoisan”
who had lived in Southern Africa for at least 8000 years before the arrival of the Dutch.

• In 1659 a war breaks out between the Khoikhoi and the VOC.

• “After the war, the Khoi leader ‘Harry the Strandloper’ (or Autshumao of the Goringkaikona tribe) was
banned to Robben Island. In April 1660 he was brough back for peace negotiations. Van Riebeeck told
Autshumao that not enough grazing land was available for the cattle of both the colonists and the Khoikhoi.
Autshumao then asked: “If the country is too small, who has the greater right: the true owner, of the foreign
intruder?” Van Riebeeck recorded his answer in his diary: “We have won this country in a just manner
through a defensive war, and it is our intention to keep it”…This was the beginning of a colonial process of
land deprivation that continued for more than 250 years”… and culminated in the Land Act of 1913 which
set aside only 8 per cent of South Africa’s total land area as ‘native reserves’.

Pre-Union Period

• “After settlement, the Cape was governed by a Commander and Council (later to be known as a Governor.
There was no separation of powers between the Governor and Council. The Commander and Council who
were not legally trained, also presided over the First Court of Justice at the Cape”.

• By 1685 the Council had formally been divided into a Raad van Polities, which performed both legislative
and executive functions, and a Raad van Justitie or a Council of Justice. As the population grew, inferior
courts of landdrosten and heemraden also came into being”.

• The British took over the Cape briefly in 1795 and again in 1814 until 1910. “English legal practices and
procedures began to be introduced from 1806, and in 1826 a commission on judicial affairs recommended
the extensive adoption of English law and procedure”.

• The First Charter of Justice of 1823 and the Second Charter of Justice of 1827 brought in an entirely new
judicial system designed along English lines, together with a divided profession. A Supreme Court was
established in Cape Town together with offices such as those of the Master and the Registrar”.

• “Meanwhile, the Great Trek of the 1830s had resulted in the settlement of the areas to the north and north-
east of the Cape Colony. Natal was annexed and proclaimed a British colony in 1843. A district Court was
set up in 1864, with appeal lying to the Cape Supreme Court.”

• “Trekker or Boere Republics were established in the Orange Free State and the South African
Republic/Transvaal. Both republics were annexed by Britain at different times: “the Orange Free River
Sovereignty from 1848 to 1854 and the Transvaal from 1877 to 1881”.

• In the early days the Boere republics were largely reliant on courts of untrained landdrodsten and
heemraden, with appeal lying to the executive branch in some instances. However, the high courts were
established in Bloemfontein and Pretoria in 1874 and 1877 respectively. In the Transvaal, President Kruger
passed legislation denying the high court competence to engage in review of legislation. "In the Orange
Free State, constitutional review …was accepted… here the validity of a racially discriminatory ordinance
was upheld”.

• “After the Anglo Boer War of 1899, the Orange Free State and the Transvaal were annexed by Britain.
“Under the British rule, they were known as the Orange River Colony and the Transvaal Colony. After the
war the High Court of the Transvaal was re-established as a Supreme Court and a local division was
created in Johannesburg”.

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 • “In summary, four British colonies were in existence when the National Convention met in 1908 to discuss
the idea of unification: the Cape Colony, Natal, Orange River Colony and Transvaal Colony…The Orange
River Colony had its High Court and the other three colonies each had a Supreme Court”.

• “Indigenous law, or a colonial interpretation of it, was recognised and applied to varying degrees in each of
the colonies at the time of the Union”. There was also the Native High Court in Natal.

Post Union Period

• “In 1910 the four colonies became provinces of the Union of South Africa under a British Statute, the South
African Act of 1909, also known as the Union Constitution”.

• The Union Constitution was largely racially exclusive. “Section 147 of the South African Act vested control
and administration of “native affairs”, including land, in the Governor-General. Separate administrative
institutions for black people proliferated especially after the enactment of the Native (later Black)
Administrative Act 38 of 1927”.

• “The right-wing National Party gained in strength after the Second World War and came into power in
1948. It’s policy of apartheid was established as official government policy and was soon reflected in
oppressive legislation such as the Population Registration Act 30 of 1950, which enforced racial
classification, the Group Areas Act 41 of 1950, which required separate residential areas for different race
groups, and the Reservation of Separate Amenities Act 49 of 1953, which sanctioned separate public
facilities for different races”

• “In 1961, following a referendum of white voters, South Africa became a republic … The new Constitution
retained the essential characteristics of the previous regime, including parliamentary sovereignty and
institutionalised racial discrimination. The policy of apartheid culminated in the National States Citizenship
Act 26 of 1970, which deprived blacks of their South African citizenship and forced them to become citizens
of a tribal homeland. Four of the homelands ultimately achieved “independence” under the National States
Constitution Act 21 of 1971, and the Supreme Courts were established in turn for Transkei (1976),
Bophuthatswana (1977), Venda (1979) and Ciskei (1981). Appeal lay from these courts to the South
African Appellate Division until separate appellate divisions came to be established for the three of the
TVBC states in late 1970s and early 1980s.

AN EXAMPLE OF THE ROLE OF JUDICARY DURING COLONIALISM

• “In November 1921, Enoch Mgijima and 140 others were tried for sedition and public violence IN
Queenstown. Nearly two hundred people had been killed … Exhibited in court were swords, scabbards
made of paraffin tins, assegais and knobkerries, as well as Enoch Mgijima’s robes of office, seized from his
home. One of the robes was a resplendent affair of cerise silk, edged with gold lace. There were three
caps. One roughly in the shape of a cardinal’s cap, was made of blue plush, with a crown of scarlet. It was
encircled with four thin strips of gold lace, and at interval were four large stars. Also on exhibit were
Enoch’s dreams. Prominent in evidence of seditious dreaming was his vision of two white goats fighting,
and a baboon which had seized them both and crushed them.

• The court accepted the evidence that to Mgijima the white goats were the Europeans, and the other animal
was the natives, and that it meant that the white people should be crushed by the natives (Graham JP).

• TAKE HOME: The model of the British legal profession was central to the imagining and understanding of
the lawyer in South Africa” in the early period of state formation in South Africa i.e. after 1910 with the
formation of the Union.

• The organisation of courts and the broader legal profession is a direct result of colonialism and apartheid.

• Has anything changed with the advent of the democratic constitution?

ROLE OF COURTS IN CONSTITUTIONAL DEMOCRACY

• In a constitutional democracy the judiciary is often referred to as the ‘bastion of the legal order’. 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

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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.

• Economic Freedom Fighters and Others v Speaker of the National Assembly and Another: 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

Structure of the judiciary

• 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.

• The High Courts now consist of the following Divisions: Eastern Cape Division; Free State Division;
Gauteng Division; KwaZulu-Natal Division; Limpopo Division; Mpumalanga Division; Northern Cape
Division; North-West Division; and Western Cape Division.

• 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: Labour Court was established in
terms of section 151 of the Labour Relations Act 68 to deal with disputes between employers and
employees.; The Land Claims Court 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; The
Tax Court was established in terms of section 83(3) of the Income Tax Act.

Constitutional jurisdiction of 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.

• When considering the various jurisdictional issues, it is therefore important 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.

Constitutional Court

• Until August 2013, the Constitutional Court was a specialist court and not a court of general jurisdiction.
However, the Constitution Seventeenth Amendment Act has now drastically changed the jurisdiction of the
Constitutional Court.

• Constitutional matters include ‘any issue involving the interpretation, protection or enforcement of the
Constitution’

• it is not always easy to distinguish between a constitutional matter and a non-constitutional matter.

• 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.

• 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 object of the Bill of Rights if the words are reasonably
capable of such an interpretation or are not unduly strained.

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 • 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’. 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.

• Secondly, 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 authorized by the
Constitution or ordinary law to exercise that power. It includes power exercised by the President, Ministers,
state officials and the courts.

• 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.

• 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 Act92 to give effect to this injunction. Thus, any interpretation and
application of this Act would give rise to a constitutional issue.

• 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.

• 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.

• 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.

• 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. 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. S 167(4)(a) of the Constitution.

• 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. 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.

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• 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.

• The Constitutional Court has exclusive jurisdiction to decide that Parliament or the President has ‘failed to
fulfil a constitutional obligation’. The words ‘fulfil a constitutional obligation’ must be given a narrow
meaning. S 167(4)(e) of the Constitution.

• Lastly, only the Constitutional Court has the jurisdiction to certify a provincial constitution in terms of
section 144.

• 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.

• ‘compelling reasons are required to justify a different procedure and to persuade this Court that it should
exercise its discretion to grant direct access’.

• 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’

• 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. Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3.

• Bruce case sets 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.

• 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.

• 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 object 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?

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CC judgment in Zuma and jurisdiction

• Compare with the following: 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.

Supreme Court of Appeal

• 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’. S 168(3)(a) of the Constitution.

• 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.

• NB: You can’t go to the SCA directly but can go to the CC 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.

• 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.

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. S 169(1)(a) of the Constitution.

• 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. (S 167(5) of the Constitution). 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.

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5.7 Chapter 7
INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY

Section 181 of the Constitution establishes institutions designed to support South Africa’s constitutional democracy.
These institutions include:
1. The Public Protector
2. The Electoral Commission
3. The South African Human Rights Commission
4. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
5. The Commission for Gender Equality
6. The Auditor-General

The first 2 are underlined because they are the most important for purposes of the study of constitutional law.
Chapter 9 institutions are especially important because they are ‘important tools to monitor the state’s realisation of
individuals’ rights in terms of its constitutional obligations’. To be sure, 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.

They are tasked with 2 main functions/roles:

checking or “monitoring” of government to ensure transforming South Africa into a society in which
accountable government social justice prevails

Independence
These institutions are independent non-judicial institutions which means that they do not have the power to review
and set aside legislation or the actions of the executive. They do however have the power to ensure that the
executive branch remains ethical in the execution of its functions. Each of the institutions is accountable to the
National Assembly to ensure that the findings and recommendations are not only considered (but actually
implemented in the case of the Public Protector).

The Public Protector

In Minister of Home Affairs and Another v Public Protector of the Republic of South Africa [2018] ZASCA 15
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.’ It is
an independent body that is answerable only to the National Assembly and, therefore, it is not an organ of state.
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. 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 Protector 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. 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.

The Public Protector has played a decisive role in the development of South Africa’s democracy, although this has
not been without controversy. This is largely due to its extensive powers to investigate maladministration and
corruption (further expanded by the Public Protector Act 23 of 1994).

The office of the Public Protector has emerged, politically at least, as the most important Chapter 9 institution
because it often finds wrongdoing on the part of very powerful members of the legislature and executive, including
the President of the country. The best example to characterise the fact that the findings of the Public Protector are
binding is the case of Economic Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly and Others (2016).

The purpose of the Public Protector’s 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

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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.

In EFF v Speaker of the National Assembly (2016), 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.
The Constitutional Court held that the Public Protector plays a highly sensitive and important role and is thus
deserving of constitutionally imposed assistance and protection given the kind of complaints, institutions and
personalities likely to be investigated. Thus:
the institution of the Public Protector is pivotal to the facilitation of good
governance in our constitutional dispensation.
The Public Protector has wide powers ‘that leave no lever of government power
above scrutiny, coincidental “embarrassment” and censure’

In EFF v Speaker of the National Assembly (2016), the Constitutional Court held:
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.’ 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. The
Constitutional Court eventually confirmed that the remedial action imposed by the Public Protector will
often be binding if it is to be effective. The Constitutional Court held:
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.

The Public Protector must impose ‘a proper, fitting, suitable and effective remedy’ so as to ensure that the remedial
action would cure ‘the root cause of the complaint’. 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.
The only option open to those affected by the report would be either to comply, or to approach a court to review
and set aside the report and the remedial action contained in it. As it pertains to the Nkandla matter, the court held:
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

The Public Protector is empowered to investigate complaints by citizens concerning the administrative actions of
the state 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’.
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:
• 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

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The Public Protector Act also allows the Public Protector to investigate matters on his or her own initiative. This is
in terms of the case of The Public Protector v Mail & Guardian Ltd and Others (2011 (4) SA 420 (SCA)) where
the Supreme Court of Appeal held at paragraph 9 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

Similarly, in Democratic Alliance v Public Protector; Council for the Advancement of the South African
Constitution v Public Protector 2019 3 All SA 127 (GP) the Court held at paragraph 36 that:
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.
According to section 6 of the Public Protector Act
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’, 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’.
The Public Protector 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 12 of 2004. Because of
this close link with the criminal justice processes, 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. But 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.
The Public Protector is not empowered to investigate the performance of judicial functions by any court of
law. Importantly, the Public Protector 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.
The Executive Members Ethics Act 82 of 1998 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. This Code binds the President
and his or her cabinet at national level and Premiers and their executive councils at provincial level. The Code
regulates conflicts of interests and also prohibits those bound by it from wilfully misleading the legislature and the
President or Premier to whom they account.
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.
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.
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 Bank [2019] ZACC 29
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, stated thus by the Court:

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 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.
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, 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. It further held that the remedial action trenched ‘unconstitutionally and irrationally on
Parliament’s exclusive authority’. 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’. 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.

The Independent Electoral Commission

Core elements in modern constitutionalism
• the recognition and protection of fundamental rights and freedoms
• the separation of powers
• an independent judiciary
• the review of the constitutionality of laws
• the control of the amendment of the constitution and
• state institutions that support constitutional democracy
• Presence in a constitution does not automatically guarantee constitutionalism, e.g. Uganda, Zimbabwe
electoral commissions
• N.B presence makes the prospects for constitutionalism better
• In the absence of such provisions, the chances of constitutionalism and constitutional democracy are bleak
• Finally, it is the cumulative effect of these core elements that enhance the chances for constitutionalism and
vibrant constitutional democracy

Establishment
S 181(1)(f) of the Constitution
Three constitutional mandates – S 190 of the Constitution:
• manage elections of national, provincial and municipal legislative bodies
• ensure that those elections are free and fair; and
• declare the results of those elections

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Objects of the IEC: S 4 of the Electoral Commission Act (ECA) 51 of 1996

• To strengthen constitutional democracy and
• To promote democratic electoral processes

Powers, duties and functions of Commission – S 4 of the ECA

• manage any election
• ensure that any election is free and fair
• promote conditions conducive to free and fair elections
• promote knowledge of sound and democratic electoral processes
• promote voter education
• demarcate wards in the local sphere of government or to cause them to be demarcated

Independence
• General guarantee of independence – s 181(2)
• Other organs of state required to assist and protect its independence s 181(3)
• Interference with its functioning prohibited – s 181(4)
• ‘Not part of ‘government’ but part of ‘state’ - Independent Electoral Commission v Langeberg Municipality
2001 (3) SA 925 (CC)
• s 3(1) of the Electoral Commission Act – Affirming independence

Founding values of constitutional democracy

• Universal adult suffrage
• A national common voters roll
• Regular elections
• Multi-party system of democratic government, to ensure accountability

Has the response to the Covid-19 pandemic changed the basic constitutional functioning
of the IEC?
• IEC forming part of the organs of state – s 239 Constitution
• Difference between state and government
State: the permanent legal entity, consisting of:
(a) a defined territory
(b) community of people
(c) legal order
(d) organised government and
(e) a measure of political identity
Government: the temporary bearer and political administration of state authority that represents the state at a
particular time, made of:
(a) three branches - the legislature, executive and judiciary
(b) three spheres – national, provincial and local.

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Case studies: national legislation
IEC’s urgent application before the Electoral Court requesting the postponement of March, April, and May 2020
municipal by-elections
o S 8(1) Local Government: Municipal Electoral Act 27 – IEC requests MEC to postpone by-elections –
impossible free and fair
o s 20(1) Electoral Commission Act 51 of 1996 - Electoral Court reviewing any decision of the IEC relating to
an electoral matter
Court decision: the by-elections could be held beyond the 90-day legislated period but not beyond 120 days from
the date of the order

Case study: Constitution

• Term of municipal councils: may be no more than five years – s 159(1)
• Council dissolved or term expires, new election within 90 days – s 159(2)
• President announced election date - 27 October 2021
• However, Minister of Cooperative Governance consults with IEC, required to make a proclamation - s 24(2)
Municipal Structures Act
• IEC may publish a report on the likelihood that it will be able to ensure that any pending election will be free and
fair – s 14(4) ECA
• 20 May 2021, IEC appointed retired Constitutional Court judge, Justice Dikgang Moseneke, to lead a
commission of inquiry on the feasibility of holding free and fair local government elections
• 20 July 2021, Justice Moseneke published a report of his findings
• Report slanted towards postponement to no later than February 2022 and that there is a possibility that the
October elections might not be free, fair and safe
• The Constitution contains no provision for a deferment
• Two possible ways around this:
o amend the Constitution or
o obtain an order of Constitutional Court permitting the extension of this constitutional term of municipal councils
• Amending this section of the Constitution would require a 75% supermajority by the legislature
• 4 August 2021, IEC launched an application before the Constitutional Court – for postponement and declaration
that current municipal councils retain legal authority until having newly elected councils
• IEC: NO free and fair elections – as guaranteed by the Constitution
• Constitutional Court set to hear oral arguments on 20 August 2021
• Postponement constitutional?

5.8 Chapter 8

Multisphere government in South Africa

Multisphere governance
• Three spheres of government – National, provincial and local.
• Consists of a national government, 9 provincial governments and 257 municipalities (8 metropolitans, 44 districts,
and 205 local).
• Exercising constitutionally protected powers and listed functional areas.
• Vertical division of power between the legislature, the executive and the judiciary.

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• Simultaneously, horizontal division of power between the national, provincial and local spheres of government.
Division of powers
• Formal constitutional distribution of legislative and executive authority, and allocation of revenue resources – to
ensure some areas of genuine autonomy for each order
Types of powers
• Functional areas
• Exclusive powers
• Concurrent powers
Dual system: clear division of powers
Quasi-integrative system: division of powers based on assumption that both levels will be involved in delivery of
a particular service
• Sharing of power within a functional area (executive federalism): Germany: executive role of lander in executing
national laws.
• Scope: Legislative, executive, judicial
• Powers in relation to functional areas

Modes of dividing legislative powers

a) One list:
• List of federal government exclusive competencies, with residual power with the states/provinces: USA
• Concurrent powers: SA 1996 Constitution
• List of exclusive state / regional powers, residual federal
b) Two lists:
• Concurrent list of federal and state powers, and list of excluded state powers (indirectly exclusive federal list)
(Australia)
• federal list, state list of exclusive powers (with residual powers clause) India, Canada
• concurrent, and exclusive: SA
• Exclusive federal list, concurrent federal and state: Nigeria
c) Three lists: exclusive national, concurrent, exclusive provincial: DRC (no allocation of residual powers)
d) Residual powers (power of unallocated functional areas)
• Federal / State level
• Additional functions:
• In terms of the Constitution – provisions other than listed powers
• Assignment of functions and powers (decentralization)
• In general or to specific sub-national government (SNU)
• Discretionary use of power
Multisphere governance
• N.B A federal, or quasi-federal, system divides power based on a divided model, or an integrated model.
• Divided model:
• Strict division between different levels or spheres.
• Each level has exclusive powers and very few, if any, concurrent powers.
• Implementation is done by the respective civil services and departments of state.
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 • Some matters are allocated exclusively to one model.
• Most matters are concurrent.
• Implementation is done by provincial or local spheres.
• South Africa broadly adheres to an integrated model.
• It can be best described as a quasi-federal system.

Substantive functional areas

• What functional areas are in the lists?
• Exclusive national lists (residual)
• Defence
• Foreign affairs
• Coinage (currency)
• Exclusive SNU list
• Language and culture
• Education
• Health
• Concurrent list

Principles for deciding on allocation of exclusive functional areas

• Functional areas that are relevant to the political compromise
• Principle of subsidiarity: federal government must undertake functions that require uniform regulation, or tasks
that the SNU cannot perform adequately (effectiveness)
• Linking the size of the SNUs to the tasks they can perform (efficiency)
• Distribution of powers should be made clear and visible – accountability

Concurrency of powers
• Concurrency: as used in the Constitution, the purposeful allocation of powers to more than one sphere of
government in the same functional area
• Overlaps: inevitable overlapping powers due to unclear cut-off points of powers
Reasons for deciding on allocation of concurrent functional areas
• Complexity and cross-cutting nature of social problems that the different orders of government face and the
difficulty to squeeze policy areas into watertight compartments of exclusive lists.
• Allows the enactment of nation-wide standards in the area of social services, while at the same time allowing
constituent units to adapt the implementation of such services to local needs.
• Avoids detailed exclusive competency lists, subdividing functional areas in complex ways which may become
obsolete over time.
• Centralization was indeed the very purpose of concurrent lists, as seen in South Africa and elsewhere in Africa.

Issues with concurrency of powers

• How are tasks allocated among two spheres?
• How do funds follow allocation of tasks?
• Disputes when conflicting national and provincial legislation – paramountcy rules

Problems relating to concurrency

• Disputes on –

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(a) Who does what?

(b) When working jointly, do both orders of government do their allocated task adequately
(c) Who pays for what?
• Duplication of services – two organs do the same function
• Ineffective services – confusion on allocations of functions, poor coordination and ineffective
communication
• No services – none of the orders does the function
• Government shopping – where customer get best deal
• Lack of accountability – passing the buck
Strategies and mechanisms to deal with concurrency
Concurrency of functions is premised on co-operative government
• Institutions of co-operative government – IGR forums
• Implementation protocols – clear allocation of tasks in common functional areas

Residual powers
• No residual powers: DRC
• Implicit to the SNUs: USA, Australia
• Implicit to national government: SA

South Africa: division of powers

• Exclusive national powers
• Exclusive provincial powers
• Concurrent national and provincial powers
• Local government powers
• Actual exercise of legislative powers

The allocation of powers to the various spheres of government

• Schedules 4 – concurrent national and provincial legislative competence.
• National government has power to make laws on any matter not mentioned in schedules 4 and 5.
• Parliament’s power may overlap with powers bestowed on provincial legislatures.
• Both national and provincial legislatures have powers.
• If both pass a law, the law is valid.
• Schedule 5 – exclusive provincial legislative competence.
• Schedules 4B and 5B - local government functions.

National exclusive powers

Section 44(1) on any matter
• Including any matter on national/concurrent list
• BUT excluding provincial exclusive functional areas
• BUT National intervention power – s 44(2)
Necessary for
• national security,
• economic unity,

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 • minimum standards for rendering of service,
• prevent unreasonable action to another province or country as whole
• Particular powers specifically listed in Constitution (e g local government structures)
• Assign any of its powers (except amendment of constitution, budget) to province or municipality (decentralisation)

Provincial exclusive powers

S 104 Constitution
• Language s 6(3)(a) language of use
• Provincial constitution s 142 - Western Cape. KZN failed attempt.
• Any matter listed in Schedule 5A
• Limited list: abattoirs, ambulance services, liquor licenses, provincial planning, provincial roads
• BUT national intervention power – s 44(2)
Necessary for
• national security,
• economic unity,
• minimum standards for rendering of service,
• prevent unreasonable action to another province or country as whole

Other provincial powers

• S 104(1)(b) to pass legislation with any matter regarding –
(iii) Any matter outside a functional area, and that is expressly assigned to the province by national legislation; and
(iv) Any matter for which a provision of the Constitution envisages the enactment of provincial legislation.
Premier: Limpopo Province v Speaker, Provincial Legislature (2012)
Overlaps: National / provincial functional areas
Schedule 4A – concurrent
• Agriculture
• Disaster management / health services
• Trade
• Road traffic regulation
Schedule 5A – exclusive
• Abattoirs
• Ambulance services
• Liquor licences
• Provincial roads and traffic

Strategies to deal with overlaps

Overlaps of functions are inevitable in system of dispersal of powers between 2/3 spheres
(a) Clarity on cut-off points – definitional clarity
(b) Co-operation in common functional area
(c) Assignment of full area to a sphere of government

Overlaps: clarifying functions

Mechanisms to give greater clarity
• Judicial interpretation

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• Legislative definitions
• Administrative guidelines
• Negotiated definitions

Local government powers

• Section 156: functional areas listed in Schedule 4B and 5B
• Both national and provincial government may “regulate” exercise of powers by municipalities
• If there is a conflict between national and provincial law and local government by-law, national and provincial
override by-law, BUT not if national and provincial law “compromises or impedes a municipality’s ability or right to
exercise its powers”

Supervision of Local Government

Purpose of supervision
• Ensuring compliance with the constitutional, legal and policy framework.
• Ensuring the achievement of performance targets set
Four forms/categories of supervision
• Regulation
• Monitoring
• Support
• Intervention
Regulation
• National government set the regulatory framework
- Establishing governance structures and procedures
- national norms and standards relating to public service provision, for instance, water quality
• Avoid violating lower sphere’s autonomy
• Financial regulation
Monitoring
• Establishing mechanisms to assess performance and compliance within the regulatory frameworks
• Reviewing periodical reports on the set performance targets and undertaking periodical visits
• Fiscal monitoring mechanisms: auditing financial books and systems
• N.B Monitoring mechanisms are not too intrusive.
Support
• Problems necessitate support
• Poorly-resourced governments: lack the capacity to comply or/and perform.
• Capacity building, deployment of staff and resources, intergovernmental grants
• Protect local autonomy
Intervention
• Monitoring and support mechanisms reveal persistent problems
• Threatening the attainment of national and/or local goals
• Intervention powers:
- Limited by law
- Grounds explicitly provided for in law

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 - Need for oversight
Three guiding concepts of multisphere governance
• Autonomy: a final say / discretion for local governments (sections 151(3); 41(1)(f)-(g))
• Supervision: senior governments supervise local government (unequal relationship) (sections 155(7); 155(6);
154(1); 139(1))
• Cooperation: local government cooperates with other spheres (section 41(1))
Local government in a federal context
Who is responsible for local government?
Classical model of federalism
• ‘dual’ federalism: LG as a competence of the states
- US, Australia, Ethiopia
- usually in practice: federal-local relations
• Evolution: LG as part of the federal state
- South Africa, Nigeria, Brazil, Nepal
- Zero sum game? More powers for LG means less power for states (viz. South Africa)

Supervision of local government in the South African context

• LG recognised as the weakest, lacks capacity to exercise its powers
• National and provincial governments mandated to supervise LG

Regulation
• Section 155(7) Constitution
• Meaning - to ‘control’ the manner in which a municipality manages its affairs – First Certification judgement
• Not withdrawing municipal powers or functions
• Objective: establishing a framework for municipal performance

Monitoring
• Section 155(6) Constitution
• Meaning - to ‘observe’ or ‘keep under review’ the manner in which a municipality manages its affairs – First
Certification judgement
• Promoting the development of LG capacity to enable municipalities to perform their functions and manage own affairs
• Not granting the authority to ‘control’
• Least intrusive form of supervision of all the supervisory powers

Supporting
• Section 154(1) Constitution
• Meaning - to ‘strengthen’ a municipality’s ability to manages its affairs – First Certification judgement
• Objective: preventing decline or degradation in municipality’s existing structures, powers and functions
• More intrusive than the power to monitor

Intervention
• Section 139(1) Constitution
• Objective: Ensuring the fulfilment of executive obligation
• Power to intrude on the functional terrain of LG - First Certification judgement

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• Most intrusive form of supervisory powers

• Power restricted and subject to procedural requirement

Appropriate steps for intervention:

• Issuing a directive
• Assuming the responsibility:
- maintain essential national standards
- prevent prejudicial results from unreasonable action
- maintain economic unity;
• Dissolving the Municipal Council and appointing an administrator

Procedural requirements for assumption of responsibility

• In respect of particular obligation
• Necessary to maintain essential national standards
• Prevent prejudicial results from unreasonable action
• Necessary to maintain economic unity

‘Appropriate steps’?
Mnquma case
• Rejected the method that dissolution should be resorted to as a measure of last resort or last step of an intervention
• Rejected the interpretation of ‘appropriate steps’ as meaning a process comprising of a set of successive steps
• ‘Appropriate steps’ can be taken in the alternative
• Province may choose between the steps outlined in S 139(1)
• ‘last resort principle’ lost?

Other reasons for intervention

• Section 139(4) - failure to approve a budget or any revenue-raising measures necessary to give effect to the budget
• Section 139(5) - 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

‘Executive obligation’ in the context of intervention

• Distinction between executive obligations and statutory
• ‘Failure to fulfil a statutory obligation would not necessarily result in a failure to fulfil an executive obligation’
• These two obligations should not be equated
• No separation of executive and legislative powers at LG level
• LG executive obligation limited by the functional areas
• Development of policy, initiation of legislation and rendering basic services and facilities to communities
Overberg case
• Failure to approve budget or revenue-raising measures necessitates provincial intervention
• Province obliged to take some steps but not obliged to intervene
• Province may decide on the form of intervention required but the steps taken must be appropriate and suitable
• Province to consider less drastic measures before resorting to dissolution of Municipal Council
• An appropriate step must objectively be determinable

Requirements before intervention

• Identify a statutory provision that places a duty to fulfil a certain executive obligation: A general reference to the
municipality’s failure insufficient
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6 EXTRACTS AND COMMENTARY OF RECENT CASES
It is obvious that one of the most important skills you will learn in Constitutional Law is how to
read a case with comprehension. The purpose of this tutorial letter is to provide you with extracts
of recent relevant cases. It also provides commentary at the end of each case, highlighting the
significance of each case. The five cases discussed are extremely important with respect to the
rule of law, the principle of legality, rationality, the separation of powers, constitutional
democracy and accountable government. In fact, these cases should immediately ensure and
enhance your understanding of Constitutional Law. Know these cases well for examinations.
6.1 City of Tshwane Metropolitan Municipality v Afriforum & Another 2016 (6) SA 279 (CC)

CONSTITUTIONAL COURT OF SOUTH AFRICA

In the matter of:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant

and
AFRIFORUM First Respondent
EVERT VAN DYK Second Respondent

JUDGMENT

Coram: Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J,

Mhlantla J, Nkabinde J and Zondo J concurring)

Introduction
[1] This case concerns a restraining order granted in favour of Afriforum and Mr Evert Van Dyk
(Afriforum)18 against the City of Tshwane Metropolitan Municipality (Council). The Council was
ordered to stop removing the old street names in the Pretoria area and bring back those that
had been removed already. For a proper understanding of the issues in this matter, a historical
perspective and the implications of the underlying constitutional vision need to be outlined. This
is accentuated by Afriforum’s reliance on the Preamble to the Constitution.

Essential context
[2] South Africa is literally the last African country to be liberated from the system that found
nothing wrong with the institutionalised oppression of one racial group by another for no other
reason but the colour of their skin, shape of their nose and the length or texture of their hair.
The underlying reason advanced for this irrational differentiation was that African people in
particular and black people in general, were intellectually inferior, lazy and lesser beings in

18 The respondents will be referred to as “Afriforum” throughout the judgment. This should by no means be
misunderstood as a sign of disrespect or disregard for Mr Van Dyk. It is done purely for convenience.
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every respect of consequence. As a result, there hardly was any city, town, street, or institution
of note that bore a name that sought to give honour to black people’s leaders or recognition to
their institutions or treasured history. Everything about the oppressed was dismissively branded
as backward and inconsequential. Virtually all recognition and honour was thus respectively
given to and bestowed upon white history and their heroes and heroines. The system was all
about the entrenchment of white supremacy and privilege and black inferiority and disadvantage.
No wonder the United Nations resolved that that system was a crime against humanity.
[3] More than three centuries from the inception of that system, South Africans of all races took
it upon themselves to create a platform for the normalisation or harmonisation of race relations,
democratisation of their country and attainment of peace and social cohesion. Against all odds,
the nation has admirably come to the point where impunified violence, racial hatred or
subjugation in all its manifestations is unlike before seldom openly and proudly practised.
[4] That said, colonialism or apartheid is a system so stubborn that its divisive and harmful
effects continue to plague us and retard our progress as a nation more than two decades into
our hard-earned constitutional democracy. Almost all cities, towns and street names continue
to reverberate with great sounds of veneration for the architects of apartheid, heroes and
heroines of our oppressive and shameful colonial past. Virtually no progressive or potentially
conciliatory change to city, town or street names goes unchallenged. There are fairly regular
challenges to the equitable distribution of honour to heroes of all cultural or racial groups and a
concomitant determination to preserve exclusivity to privilege and meaningful control. This
highlights the crucial role of the Preamble to our Constitution, relied on by Afriforum.
[5] A preamble is after all a succinct expressionary statement that sets out a constitution’s
purpose and underlying philosophy. By design and like all others, our Preamble captures the
essential principles by which we the people seek to govern our affairs. It is such a crucial part of
our Constitution that, if only every citizen were to internalise it and live according to its terms,
our aspirations would most likely be expeditiously realised. Ours reads in relevant part:
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
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.
[6] Knowing just how deep and engrafted the distrust, divisions and injustices were in the very
being of some of our people from the days of apartheid, we have made a solemn undertaking to
embark on an all-inclusive constitutional project, geared at achieving national unity and
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reconciliation. The injustices of the past are not to be pampered or approached with great care
or understanding or sympathy. And the immeasurable damage racism or cultural monopoly has
caused requires that stringent measures be taken to undo it. That approach will help us move
away from exclusivity to opportunities, racial domination and intolerance to inclusivity, social
cohesion and equitable access to opportunities.
[7] The normalised demonisation and stigmatisation of heroes and heroines of our struggle for
justice, peace and freedom is now a thing of the past. We the people of South Africa promise to
honour them, presumably the same way heroes and heroines have been venerated in this
country and around the world. Just as important is the need to respect white and black South
Africans who played a crucial role in building and developing South Africa into the modern
country of note it now is. All of us must embrace and internalise the constitutional reality that
this country belongs to all of us who live in it. Diversity thus ought to highlight the need for unity
rather than reinforce the inclination to stand aloof and be separatist. An appreciation of the
value addition or special contribution of diversity, as in other countries, should strengthen our
collective resolve to unite and tap into the special skills and experiences of all diverse groups in
this country, for the betterment of all.
[8] As a people who were not only acutely divided but were also at war with themselves
primarily on the basis of race, one of several self-imposed obligations is healing the divisions of
the past. The effects of the system of racial, ethnic and tribal stratification of the past must thus
be destroyed and buried permanently. But the healing process will not even begin until we all
make an effort to connect with the profound benefits of change. We also need to take steps to
breathe life into the underlying philosophy and constitutional vision we have crafted for our
collective good and for the good of posterity. That would be achieved partly by removing from
our cities, towns, “dorpies”, streets, parks, game reserves and institutions, names that exalt
elements of our past that cause grief to other racial groups or reopen their supposedly healing
wounds. Also, by removing even some innocuous names that give recognition only to the
history, language, culture or people of one race, so as to make way for the heritage and
deserving heroes and heroines of the previously excluded. This is to be done sensitively and in
pursuit of inclusivity, unity in diversity and recognition of the need for a sense of belonging for
all. We all have the duty to transform our society. And all, black and white, are an essential part
of “we the people of South Africa” that shoulder the burden to do so.
[9] Our shared values that underpin our constitutional vision cannot be achieved when one race
almost always has its way or a near-absolute monopoly of respect and honour. That is a recipe
for the illegitimate retention of exclusive privilege, undeserved domination of the past and future
hostilities as opposed to inclusivity, reconciliation and the unity in diversity we have undertaken

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to pursue and achieve. No measure of sophistry, contortion, or strategy ought to be allowed to

entrench any form of racial domination or exclusivity to privilege, honour and opportunities. For
that is inconsistent with our foundational values and constitutional vision. South Africans of all
races must unite to secure a brighter, peaceful, stable and prosperous tomorrow by allowing the
previously excluded groups, to also be honoured in their own land. They too should at long last
have a sense of belonging.
[10] This case highlights the need to familiarise ourselves with our vision in the Preamble to our
Constitution. It also sounds a clarion call to South Africans of all races to take to heart the
foundational values of our Constitution like human dignity, equality, the advancement of human
rights and freedoms, non-racialism and non-sexism. When our actions are informed and driven
by these facets of our constitutional project, then a proposed change of names of landmarks,
streets and institutions would only attract constitutionally-inspired and constructive
opposition. Strife and the consequential deepening of the divisions of the past would thus be
most likely avoided or minimised.
[11] All peace and reconciliation-loving South Africans whose world-view is inspired by our
constitutional vision must embrace the African philosophy of “ubuntu”. “Motho ke motho ka
batho ba bangwe” or “umuntu ngumuntu ngabantu” (literally translated it means that a person is
a person because of others). The African world-outlook that one only becomes complete when
others are appreciated, accommodated and respected, must also enjoy prominence in our
approach and attitudes to all matters of importance in this country, including name-changing.
White South Africans must enjoy a sense of belonging. But unlike before, that cannot and
should never again be allowed to override all other people’s interests. South Africa no longer
“belongs” to white people only. It belongs to all of us who live in it, united in our diversity. Any
indirect or even inadvertent display of an attitude of racial intolerance, racial marginalisation and
insensitivity, by white or black people, must be resoundingly rejected by all South Africans in
line with the Preamble and our values, if our constitutional aspirations are to be realised.
[12] South Africa still looks very much like Europe away from Europe. A very insignificant
number of names of our cities, towns and streets gives recognition to the indigenous people of
this country and other black people. Very little recognition or honour is given to their heritage,
history, heroes and heroines in their own motherland. This does not reflect but rather belies a
commitment by all to the spirit of genuine unity, transformation and reconciliation.
[13] In this country, names of places and institutions of importance generally celebrate one-
sidedness and at times resonate with the legacy of our oppressive past with unbelievable
boldness and alacrity. Hopefully, this does not signify a disinclination to change for fear of
protestations by retentionists that mere change to what they cherish, however miniscule, not

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only poses a threat to them and their environment but also denies them a sense of belonging.
For, that position would inadvertently be saying to those who are victims of colonialism and
apartheid, that they have no legitimate claim to any sense of belonging whatsoever.
[14] Our constitutional vision militates against a never-ending determination to oppose change
to city, town or street names. Through the Preamble and the entire Constitution we imposed on
ourselves the duty to transform. Recognition of the injustices of the past is neither a slogan nor
an empty or meaningless assertion of recognition. It heralds an obligation to actively participate
not in the perpetuation but, in the eradication of the injustices of the past. Honouring those who
suffered for justice and freedom like Dr Beyers Naude and Advocate Bram Fischer promises,
amongst other things, the naming of streets and institutions of importance after them.
Respecting those who worked and developed South Africa recognises the role of our black and
white compatriots who toiled over the years to make our country better than it was before. For
indeed South Africans across racial lines worked hard to change the country for the better, even
during apartheid. A belief that South Africa belongs to all who live in it united in our diversity, is
the antithesis of any obsession with or exaggeration of the role and importance of one racial
group above all others.
[15] Thoroughgoing introspection is thus called for. Both black and white South Africans need to
strive for the attainment of our shared values and constitutional aspirations. It is impermissible
to ever adopt an attitude that seems to suggest that some of our people can afford to endure
the pain and torture induced and symbolised by instruments of the colonial and apartheid
legacy, probably because they have endured them long enough to find them tolerable, if not
somewhat acceptable. This is even more so where others are categorical about their total
inability to tolerate progressive and inclusive instruments like streets bearing names of leaders
from other cultural groups even temporarily.
[16] Nothing that objectively encourages or seeks to perpetuate the stereotypes, prejudice or
discriminatory practices of the past is to be tolerated. Inclusivity, unity in diversity, recognition of
the culture and history of white and black South Africans and reconciliation are our chosen
paths to the prosperous future. They accelerate social cohesion and the process of healing the
divisions of the past. This national project demands that we reject everything that sustained,
entrenched and still promotes racial discrimination.
[17] Ours is a country with great potential for enduring peace, stability and sustainable
economic growth. Much will however depend on how we manage our differences as individuals,
groups and as a nation. Our utterances and actions must always take cue from the foundational
values of and Preamble to our Constitution. Our commitment to reject the injustices of the past,
the disunity and pain they brought about must be unwavering and matched by our actions. That

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way and in harmony, we will be able to replace old names that celebrate people and things that
divided and caused us deep and incalculable pain with new ones that recognise the previously
ignored and unify the nation.
[18] Our peculiarity as a nation impels us to remember always, that our Constitution and law
could never have been meant to facilitate the frustration of real justice and equity through
technicalities. The kind of justice that our constitutional dispensation holds out to all our people
is substantive justice. This is the kind that does not ignore the overall constitutional vision, the
challenges that cry out for a just and equitable solution in particular circumstances and the
context within which the issues arose and are steeped. We cannot emphasise enough, that
form should never be allowed to triumph over substance. Our Constitution was never meant to
be a selectively recognised weapon, conveniently produced and used by some of us only when
it could help advance illegitimate sectarian interests through legal stratagems. It was designed
to facilitate justice and equity for all. That said, legitimate individual or sectarian rights and
interests may always be vindicated and appropriately addressed within the prism of this
constitutional dispensation.
[19] This then sets the scene for the resolution of a challenge to the order that seeks to
preserve street names that Council believes are irreconcilable with our constitutional project.

Background
[20] In 2002, Council adopted policy guidelines relating to the possible change of street names
and heritage sites in the city of Pretoria and the surrounding areas. One of the guidelines that
stood out was that a street name would not be changed unless fifty one percent of the
inhabitants of the ward in which it is located, agrees. How it could ever have been possible to
change names in suburbs or industrial areas that are dominated by those who see nothing
wrong with them, however objectively offensive the names might be, remains a mystery.
[21] In 2007, Council passed a resolution to replace those guidelines with new ones. And it was
purportedly in terms of the new policy guidelines that a decision was ultimately taken to change
25 of the more than 100 old street names. The final decision was preceded by some
consultative meetings held in areas located in 10 of the 76 wards of greater Pretoria.
[22] Council in effect says that this change was necessitated by the dictates of inclusivity, unity
in diversity, overdue recognition of and bestowal of honour to the previously dishonoured as well
as the need to heal the divisions of our past. Afriforum has consistently opposed the mooted
changes from the beginning all the way through to the implementation of Council’s resolution to
replace old street names like Dr Hendrik Verwoerd, Louis Botha and Walker with new ones like
President Nelson Mandela, Chief Justice Ismail Mohamed, Solomon Mahlangu and Steve Biko.
Council’s decision viewed in context seems indeed to have been intended to shed Pretoria of its
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colonial and apartheid legacy and to introduce those names that symbolise the pursuit of justice,
peace, unity, reconciliation, fundamental human rights and freedoms for all our people. This
should, however, never be misunderstood to mean that the end will always justify the means.
[23] When Afriforum learnt that Council had resolved to replace some of the old street names
with the new, it brought an urgent application to restrain Council from doing so. That application
came before Tuchten J. He did not have to make any order because Council undertook not to
take any of the measures objected to by Afriforum. The lifespan of this self-restraint was six
months. Afriforum also undertook to bring an application to have the decision to change the old
street names reviewed within ten days of Council’s undertaking. Whereas Council honoured its
undertaking, Afriforum did not launch its review application as promised.
[24] Long after the expiration of the self-imposed six months moratorium, Council decided to
and did implement its resolution to change street names. This prompted Afriforum to launch an
urgent application. Even then, Afriforum only launched its review proceedings seven months
after the expiration of the ten-day period. This it says was a consequence of its hope that an
amicable solution to the street name change issue could still be found.
[25] Council never promised to put that project on hold forever or indefinitely. Nor did it undertake
not to implement its decision without first informing Afriforum. It is therefore inappropriate to
accuse Council of deliberately taking long to respond to Afriforum’s inquiry on whether it was
going to replace old names anytime soon, with a view to ensuring that it would have completed
that project before Afriforum could take legal steps. Afriforum’s footprints appear to be all over
Pretoria. It is highly unlikely that all the street names could have been removed and replaced
without any of its constituents becoming aware of it and alerting Afriforum. The decision to
challenge the name-changing process has always been Afriforum’s to make. And so was the
timing entirely in its hands. Its indecision and inaction cannot properly be blamed on Council.
[26] Having passed the resolution to change some of the names arguably linked to the colonial
and apartheid legacy, Council embarked on the process of implementing its resolution. Afriforum,
however, sees even a temporary removal of the old street names as doing violence to what
defines the very being of the Afrikaner people as well as their healthy and peaceful existence.
To them it was an assault on their treasured history and heritage which could not be left
unchallenged. As a result, they launched a fresh urgent application for an order restraining
Council from removing the old names and directing it to restore those names that had already
been removed. The order was granted by Prinsloo J in those terms, pending the finalisation of
the review proceedings.
[27] The rationale behind the grant of the interim order is essentially this. The old street names
are an historical treasure and a heritage so intimate to the very being of the Afrikaner people

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that their removal would constitute an infringement of their right to enjoy their culture as envisaged
by section 31 of the Constitution. In other words, what reigns supreme in Afriforum’s opposition
to the notion that old names be removed, is that they are an integral part of an irreplaceable and
much-cherished history, heritage and culture of the Afrikaner people. So dear and invaluable
are the old street names to them, that even their temporary displacement would not only give
rise to inestimable emotional hurt but also to irreparable harm. The replacement of old names
with those of black people would according to Afriforum somehow toxify the environment to the
point of jeopardising the health of like-minded residents of Pretoria. The temporary retention of
the old names would, they say, give them a sense of place and a sense of belonging.
[28] Additionally, the temporary removal of the old names would cause them to be forgotten,
with the result that by the time litigation processes connected to the review are finalised, courts
would in all likelihood conclude that the horse has already bolted 19 and that no meaningful
purpose would be served by bringing back the old names. Furthermore, confusion would reign
consequent upon the placement of only new names since tourists, residents and business
people would find it difficult to locate their destinations pending the drafting of new directional
maps with new street names or updating the GPS. Business people would also have to change
their stationery at great expense and if the review succeeds change it back to what it was.
[29] Aggrieved by Prinsloo J’s order, Council unsuccessfully sought leave to appeal against it. It
then petitioned the Supreme Court of Appeal which granted it leave to appeal to the Full Court.
Jordaan J (with Pretorius J and Molefe J concurring) dismissed Council’s appeal. An attempt was
made to challenge that decision but the Supreme Court of Appeal refused leave with
costs. Hence this application.

In this Court
[30] The Council’s case is that Afriforum has not satisfied the requirements for the interim
interdict they were granted. In particular, that it stood to suffer irreparable harm in the event of
the interim order not being granted20 and that the balance of convenience favours them.
[31] Afriforum’s approach seems to assume that Council bears the burden of proof to satisfy the
Court that Afriforum is not entitled to the interim order. They maintain that Council recklessly
proceeded with indecent haste to remove old street names knowing that an application for a
restraining order had been launched. Also, that Council admits that only 10 of the 76 wards were
afforded the opportunity to participate in the name-changing process. Furthermore, Afriforum
contends that Council cannot deny the emotional hurt they would suffer if the order were not

19 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223(CC); 2012 (11)
BCLR 1148 (CC) para 50.
20 OUTA para 53.

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granted. Very little is said to demonstrate how the requirements for granting an interim interdict
were satisfied. There does not seem to be a proper appreciation of the legal reality that the onus
to prove that the interim order should be granted, rests on Afriforum itself. Very little purpose
would be served by an elaborate reproduction of the parties’ submissions. It will suffice to raise
only those pertinent to the issues to be determined, in the course of the discussion of the merits.

Leave to appeal
[32] The portion of the order that restrains Council from removing the old street names and that
which enjoins Council to restore those already removed to their original position, are so inter-
connected or inter-dependent that one cannot exist without the other. Afriforum wants all the old
street names retained pending the finalisation of the review proceedings. The order directing
Council to restore the old names depends for its significance on the restraining order. In other
words, the reinstatement of the old names is meaningless without preventing Council from
removing the remaining old names. Similarly the plan to preserve all the old names by
interdicting the removal of the old names, would be frustrated if the old street names, already
removed, are not brought back.
[33] The interim order issued by the High Court and upheld by the Full Court is therefore one
and inseparable. Its appealability must be considered on that basis.
[34] It is not disputed that the pending review application raises at least
four constitutional matters. First is the enjoyment of the cultural right provided for in section 31
of the Constitution. Second is the entitlement to a properly facilitated public participation
process inferentially sought to be sourced from section 152 of the Constitution. 21 Third, the
review hinges on the constitutional right to just administrative action. The foundation on which
the review application rests thus comprises not only the propriety of the facilitation of the public
participation process in the renaming of streets and legality but also the constitutional right
embedded in section 31. These issues are yet to be pronounced upon on review. Finally, the
order granted and sought to be defended involves considerations of separation of powers. For,
it is a hotly contested issue whether the court order constitutes a justifiable intrusion into the
exclusive terrain of the Executive.
[35] We hold that it was in line with Council’s executive powers to govern the city of Pretoria and
its surrounding areas, that it took a policy decision to replace the old street names with the new
ones it considers appropriate to reflect our more inclusive dispensation. Implementation of that

21 I assume without deciding that Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151(SCA) could be
relied on as authority for the proposition that this section is the constitutional basis for public participation at the
local government level.
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policy decision was underway when Afriforum applied for and obtained the interim order that
stopped Council dead in its tracks.
[36] Included in the implementation of the policy decision was the determination of the budget
necessary to effect the change during the particular financial year. The effect of the order is not
only to suspend and frustrate the implementation of that decision, but also to stretch the budget
through, among other things, subsequent inflation and the Rand’s loss of value against major
currencies. Now we know that to give effect to the order to bring back the old street names
would as at that time have punched a R2.6 million hole in Council’s budget.
[37] The reality of the order is again that Council is forced to live with that intrusive effect as long
as the review proceedings are pending or remain inconclusive by reason of likely appellate
processes. The issues at stake being hotly contested and emotive, it is very likely that the
decision of the review court would indeed be taken on appeal by whomsoever loses. If the four
years it took this interim order to be heard by this Court be anything to go by, then Council
would have to wait for many years while the review order is slowly meandering its way up the
appellate ladder of our court system.
[38] Realistically, Council would then have to brace itself for another four or so years of waiting,
before it could carry out its constitutional and statutory duties. Not only would this trench upon
its executive powers and budgetary responsibilities, but that long period of suspension has a
final effect. The R2.6 million spent on the restoration of the names can never be undone. The
same applies to Council’s inability to spend the R98 million set aside for the name-changing
process. Council’s executive powers would have been encroached on without this Court having
considered whether that was sanctioned by our Constitution. And these considerations provide
sound bases for appealability.
[39] The appealability of interim orders in terms of the common law depends on whether they
are final in effect. In this connection, it must be borne in mind that the effect of the restraining
and mandatory order granted is to mortify and prevent Council from implementing its resolution.
And this is the resolution taken in terms of its constitutional22 and statutory23 powers. To say that

22 Section 151 of the Constitution states:

Status of municipalities
(1) The local sphere of government consists of municipalities, which must be established for the whole of the
territory of the Republic.
(2) The executive and legislative authority of a municipality is vested in its Municipal Council.
(3) A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject
to national and provincial legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise or impede a municipality's ability or right to
exercise its powers or perform its functions.
23 Section 63(1) of the Local Government Ordinance 17 of 1939 reads as follows:

The council shall have the control and management of all—

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this amounts to an intrusion by courts into the domain reserved exclusively for the Executive,
would not be an overstatement.
[40] The common law test for appealability has since been denuded of its somewhat inflexible
nature. Unsurprisingly so because the common law is not on par with but subservient to the
supreme law that prescribes the interests of justice as the only requirement to be met for the
grant of leave to appeal. Unlike before, appealability no longer depends largely on whether the
interim order appealed against has final effect or is dispositive of a substantial portion of the
relief claimed in the main application. All this is now subsumed under the constitutional
interests of justice standard. The over-arching role of interests of justice considerations has
relativised the final effect of the order or the disposition of the substantial portion of what is
pending before the review court, in determining appealability. 24 The principle was set out
in OUTA by Moseneke DCJ in these terms:
This Court has granted leave to appeal in relation to interim orders before. It has made it clear that the
operative standard is ‘the interests of justice’. To that end, it must have regard to and weigh carefully
all germane circumstances. Whether an interim order has a final effect or disposes of a substantial
portion of the relief sought in a pending review is a relevant and important consideration. Yet, it is not
the only or always decisive consideration. It is just as important to assess whether the temporary
restraining order has an immediate and substantial effect, including whether the harm that flows from
it is serious, immediate, ongoing and irreparable.25

(a) roads, streets, thoroughfares, bridges, overhead bridges, subways, including foot pavements, footpaths, side-
walks, and lanes;
(b) squares and other open spaces, gardens, and other enclosed spaces;
(c) culverts, and ferries;
(d) dams, canals, reservoirs water-courses, and water-furrows;
which have been or shall at any time be set apart and appropriated by proper authority for the use and benefit of
the public, or to which the inhabitants of the municipality shall at any time have or acquire a common right. ...
Section 69(1)(a) reads as follows:
The Council may from time to time cause the houses, buildings or erections fronting upon all or any public places to
be marked with such number as it thinks fit, and may cause the name, by which any public place is to be
known, to be put up or painted on a conspicuous part of any house, building, fence, wall or place fronting
thereon, and may further at its distraction change or vary such number or name, whether or not such name or
number existed before the commencement of this Ordinance, and any change or variation in the name of any
public place shall forthwith be notified by the council to the Surveyor-General who shall make the necessary
alterations on the general plan of the township; provided that no change in the name of a public place shall be
made except with the consent of the Administrator after reference to the Surveyor-General.
24 South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National

Traders Retail Association v City of Johannesburg and Others 2014 (4) SA 371 (CC); 2014 (6) BCLR 726 (CC)
para 17 states that:
This provision [section 167(6) of the Constitution] makes it plain that the Court has a wide appellate jurisdiction on
constitutional matters. It may decide whether to hear an appeal from any court on any constitutional dispute
provided it serves the interests of justice to do so. There is no pre-ordained divide between appealable and
non-appealable issues. Provided a dispute relates to a constitutional matter, there is no general rule that
prevents this Court from hearing an appeal against an interlocutory decision such as the refusal of an interim
interdict. However, it would be appealable only if the interests of justice so demand. Thus, this Court would not
without more agree to hear an appeal that impugns an interlocutory decision, especially because such a
decision is open to reconsideration by the court that has granted it. Doing so would be an exception rather than
the norm.
25 OUTA para 25.

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The Deputy Chief Justice also dealt with the role of separation of powers in relation to
appealability as follows:
A court must also be alive to and carefully consider whether the temporary restraining order would
unduly trespass upon the sole terrain of other branches of Government even before the final
determination of the review grounds. A court must be astute not to stop dead the exercise of executive
or legislative power before the exercise has been successfully and finally impugned on review. This
approach accords well with the comity the courts owe to other branches of Government, provided they
act lawfully. Yet another important consideration is whether in deciding an appeal against an interim
order, the appellate court would in effect usurp the role of the review court. Ordinarily the appellate
court should avoid anticipating the outcome of the review except perhaps where the review has no
prospects of success whatsoever.26

[41] What the role of interests of justice is in this kind of application, again entails the need to
ensure that form never trumps any approach that would advance the interests of justice. If
appealability or the grant of leave to appeal would best serve the interests of justice, then the
appeal should be proceeded with no matter what the pre-Constitution common law impediments
might suggest. This is especially so where, as in this case, the interim order should not have
been granted in the first place by reason of a failure to meet the requirements. The Constitution
and our law are all about real justice, not mere formalities. Importantly, the constitutional
prescript of legality and the rule of law demand that nobody, not even a court of law, exercises
powers they do not have. Where separation of powers is implicated and forbids the grant of the
order sought to be appealed against, the interests of justice demand that even an order that is
not of final effect or does not dispose of a substantial portion of the issues in the main
application, nevertheless be appealable.
[42] Consequently, although the final effect of the interim order or the disposition of a substantial
portion of issues in the main application are not irrelevant to the determination of appealability
and the grant of leave, they are in terms of our constitutional jurisprudence hardly ever
determinative of appealability or leave. The role of the final effect of an interim order recedes to
the background when an interim order impermissibly trenches upon the sole terrain of the other
branches of Government. To arrest the execution of Council’s policy decision as finally as the
High Court has done before a determination of the grounds of review, is too drastic a measure to
take in the circumstances. It remains the constitutional and statutory responsibility of Council to
determine the fate of the street names, obviously subject to facilitation of genuine and
appropriate public participation in the name-changing process. The power to determine how much
of Council’s budget will be used, when and for what purpose is also firmly in the hands of Council.
[43] Operating with the ever-abiding consciousness of the crucial role separation of powers
plays in our constitutional democracy, courts should thus be very slow to interfere with the

26 OUTA para 26.

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legitimate exercise of governmental powers save in the “clearest of cases” or where bad faith or
corruption or fraud was proved. Even the common law recognises that courts should exercise
the power to grant an interdict restraining the exercise of statutory powers, “only … in
exceptional circumstances and when a strong case is made out for relief.” 27 This being a case
that relates to a grant of such an interdict, it cannot be treated as an ordinary run of the mill
application for an interim order. It is about transformation and the related right to govern. All of
the above clamour not just for the conclusion that the order is appealable but also that it is in the
interests of justice that leave to appeal be granted to Council. But, there is more.
[44] The mainstay of Afriforum’s review application is that Council failed to facilitate a proper
public participation process prior to passing the resolution to change street names. In support
of this, reliance is placed on its alleged non-compliance with the 2007 policy guidelines which
apparently required of it to consult all Ward Committees before street names could be changed.
The non-observance of the principle of legality is also an integral part of Afriforum’s case on
review. And these are the issues on which the Full Court not only entertained full argument, but
also dealt with quite extensively in its judgment and decided in favour of Afriforum. Part of what
the Full Court said to this end was that:
The argument on behalf of the respondent that the appellant failed to perform a proper public
participation process is in my view likewise unassailable.
[45] Having resolved the legal basis for public participation in the name-changing process,
it held that Council failed to comply with its 2007 policy guidelines by not involving Ward
Committees city-wide. And it relied on Ethekwini as authority for its conclusion that it was
entitled to interfere “with a decision of a municipality where the element of legality is lacking.” 28 It
thus disposed of the assertion that there have been a series of illegalities including non-
compliance with several pieces of legislation in favour of Afriforum and made an order
endorsing the order of the Court of first instance. A punitive costs order was then made purely
on the basis that Council expedited the implementation of its policy decision.
[46] It needs to be repeated that the review stands or falls on the inadequacy or otherwise of
public participation in the name-changing process. And the Full Court has in essence disposed
of all the issues on review. Very little, if any, still remains to be decided. All the remaining
grounds of review are so dependent on the alleged inadequacy of the public participation
process and legality for their relevance and significance that they cannot stand on their own.
And they are the, (i) failure to consider the financial implications of changing street names; (ii)
non-compliance with the provisions of the South African Geographical Names Council

27 Gool v Minister of Justice and Another 1955 (2) SA 682 (CPD) at paras 688F and 689B-C. This authority was
endorsed in OUTA para 43.
28 Ethekwini para 108.

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Act,29 National Heritage Resources Act,30 Local Government: Municipal Finance Management
Act31 and sections 33 and 41 of the Constitution; (iii) disregard for the impact of the street name-
change on the business community and for the Bathopele principles; and (iv) failure to
appreciate the correct historical context of the personalities or institutions whose names the old
streets bear. Just as important is the punitive costs order which the review court would be
unable to reverse. Even if the relief granted by the Full Court does not have a final effect, it does
in the very least dispose of a substantial portion of the issues on review. A single Judge review
court would be confronted with a three-Judge conclusion that Afriforum’s assertion that public
participation was flawed is unassailable and that legality was not observed in respect of a series
of legislations. That predetermination of key grounds of review inadvertently but effectively
undermines the role and authority of the review court to resolve these issues. It is thus in the
interests of justice that the Full Court’s order be appealable for this reason also, to allow this
Court to clear the decks for the review court.
[47] Apart from the irreparable harm to Council32 that flows from being restrained from executing
the decision taken in terms of its constitutional and statutory powers, there are other bases for
Council’s irreparable harm. The punitive costs order made against it is not the subject-matter of
review. And so it is with the costs ordered by the Court of first instance. These orders are not
subject to reconsideration and confirmation or susceptible to alteration by the Court of
first instance. They are final in effect. Council’s prospects of success are very strong and this is,
in terms of our law, an important factor to be taken into account in considering appealability and
leave to appeal against interim orders.33
[48] It is indeed a general principle of our law that leave to appeal against an interim order
would ordinarily be refused unless the applicant is able to demonstrate that irreparable harm
would otherwise ensue. But this is only a general principle. And the irreparable harm that
Council stands to suffer if leave were not granted is set out not because that principle

29 Act 118 of 1998.

30 Act 25 of 1999.
31 Act 56 of 2003.
32 See Minister of Health and Others v Treatment Action Campaign and Others (No I) 2002 (5) SA 703 (CC); 2002

(10) BCLR 1075 (CC) paras 5 & 12, the Court had this to say about the grant of leave to appeal against an
interim order:
The ordinary rule is that the noting of an appeal suspends the implementation of an order made by a court. An
interim order of execution is therefore special relief granted by a Court when it considers that the ordinary
rule would render injustice in a particular case. Were the interim order to be the subject of an appeal, that,
in turn, would suspend the order.
…
[F]or an applicant to succeed in such an application, the applicant would have to show that irreparable harm
would result if the interim appeal were not to be granted – a matter which would, by definition, have been
considered by the Court below in deciding whether or not to grant the execution order. If irreparable harm
cannot be shown, an application for leave to appeal will generally fail.
33 Informal Traders para 20.

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necessarily applies to this case but on the assumption that it does. It follows that, the order of
the Full Court is appealable and that leave should be granted. The additional basis for
appealability is admirably dealt with by Jafta J in his strongly reasoned concurring judgment,
which we endorse fully.
[49] To determine whether this is perhaps one of those cases where “a proper and strong case”
or “the clearest of cases” has been made out for the interim relief, it is necessary to examine
how Afriforum met the requirements for the grant of an interim interdict. Those requirements
were of course set out in Setlogelo34 and Webster35 as (i) a prima facie right that might be open
to doubt; (ii) a reasonable apprehension of irreparable and imminent harm to the right if the
interdict is not granted; (iii) the balance of convenience favourable to the grant of the interdict;
and (iv) the absence of any other adequate remedy.

…36

Commentary:
The road to decolonizing constitutional law has taken place one street at a time. In 2007 the
Tshwane Metropolitan Municipal Council lawfully 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,37 the Council resolved to change 25 of the more than 100
old street names.38 The purpose was to recognize and honour the heritage and history of
indigenous heroes and heroines in their own motherland.39 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.

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’.40 Upon being informed of Council’s resolution, Afriforum took the highly
insensitive, divisive and somewhat selfish41 stance that the Council should be interdicted from

34 Setlogelo v Setlogelo 1914 AD 221 at 227.

35 Webster v Mitchell 1948 (1) SA 1186 (WLD).
36 You are strongly urged to read the rest of the judgment on your own. Only the beginning of this judgment has

been included here in order to save space and due to the fact that the Commentary on the case is quite
extensive.
37 Tshwane para 69.
38 Tshwane para 21.
39 Tshwane para 12.
40 Welsh D ‘Can South Africa become a nation state?’ in van Vuuren DJ (1991) South Africa in the Nineties 563.
41 Tshwane para 58.

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proceeding to implement the resolution. 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.
Ironically, Afriforum never did launch its review application.42 Seven months later, preceded by
some consultative meetings held in areas located in 10 of the 76 wards of greater Pretoria, as
well as after having, in its view, solicited a diversity of views including those of Afriforum,
Council commenced with the implementation of replacing the old and offensive street names.43

On an urgent basis, Afriforum applied for – and succeeded in obtaining from the High Court –
an interdict against the Council,44 threatening to cause strife and a deepening of the divisions of
the past.45 The Council sought leave to appeal, which the Supreme Court of Appeal granted.
However, the Supreme Court of Appeal dismissed the appeal, compelling the Council’s
application to the Constitutional Court.46

In declaring that the interdict should never have been granted in the first place,47 the
Constitutional Court placed the case within its proper context. The wounds of colonialism,
racism and apartheid run deep in South Africa.48 Black people have been subject to centuries of
deprivation of ‘a sense of place and a sense of belonging’49 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’. 50 In the words of Ndlovu-Gatsheni, ‘denying
others humanity is the highest form of barbarism’.51 So too, the historical injustices occasioned
by apartheid were profoundly pernicious.52 The Court recognized 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’.53 In a rather irritated tone, the majority
of the Court rejected Afriforum’s argument that ‘harm and toxicity’ would arise when Afrikaners
looked ‘only at the names linked to other racial groups’. The Court construed this to mean that
Afriforum could not accept black people as fellow human beings deserving of human dignity and

42 Tshwane para 23.

43 Tshwane para 68.
44 Tshwane para 24.
45 Tshwane para 10.
46 Tshwane para 29.
47 Tshwane para 41.
48 Tshwane para 79.
49 Tshwane para 58.
50 Young RJC (2003) Postcolonialism 139.
51 Ndlovu-Gatsheni SJ ‘Racism and “blackism” on a world scale’ in Rutazibwa OU and Shilliam R (eds) Routledge

Handbook of Postcolonial Politics (2018) 75.

52 Tshwane para 121.
53 Tshwane para 11.

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equality and denied them any honour ‘for their pursuit of justice and freedom in South Africa’. 54

Highlighting the deference that the separation of powers doctrine requires of it,55 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 organization such as Afriforum, the
Council had satisfied the requirement of ensuring that public participation took place.56 As such,
the decision is important for the fact that Ubuntu constituted the fundamental basis of the decision
and has advanced the decolonization of constitutional law by developing South Africa’s unique
form of separation of powers57 by giving a nuanced meaning to public participation. 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’.58

6.2 Economic Freedom Fighters v Speaker of the National Assembly 2016 (5) BCLR 618
(CC); 2016 (3) SA 580 (CC) (31 March 2016)

CONSTITUTIONAL COURT OF SOUTH AFRICA

In the matter of:

ECONOMIC FREEDOM FIGHTERS Applicant

and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent
PUBLIC PROTECTOR Third Respondent

And in the matter of:

DEMOCRATIC ALLIANCE Applicant

and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent
MINISTER OF POLICE Third Respondent
PUBLIC PROTECTOR Fourth Respondent

54 Tshwane para 58.

55 Tshwane para 70.
56 Tshwane para 67.
57 See de Lange v Smuts NO 1998 (3) SA 785 (CC) para 60 and S v Dodo 2001 (5) BCLR 423 (CC) paras 15 and 17.
58 Tshwane para 68.

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CORRUPTION WATCH (RF) NPC Amicus Curiae

JUDGMENT

Coram: Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J,

Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

Judgment: Mogoeng CJ (unanimous)

Introduction
[1] One of the crucial elements of our constitutional vision is to make a decisive break from the
unchecked abuse of State power and resources that was virtually institutionalised during the
apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy
of the Constitution as values of our constitutional democracy.59 For this reason, public office-
bearers ignore their constitutional obligations at their peril. This is so because constitutionalism,
accountability and the rule of law constitute the sharp and mighty sword that stands ready to
chop the ugly head of impunity off its stiffened neck. It is against this backdrop that the following
remarks must be understood:
Certain values in the Constitution have been designated as foundational to our
democracy. This in turn means that as pillar-stones of this democracy, they must be observed
scrupulously. If these values are not observed and their precepts not carried out
conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State
predicated on a desire to maintain the rule of law, it is imperative that one and all should be
driven by a moral obligation to ensure the continued survival of our democracy.60
And the role of these foundational values in helping to strengthen and sustain our constitutional
democracy sits at the heart of this application.
[2] In terms of her constitutional powers,61 the Public Protector investigated allegations of
improper conduct or irregular expenditure relating to the security upgrades at the Nkandla
private residence of the President of the Republic. She concluded that the President failed to
act in line with certain of his constitutional and ethical obligations by knowingly deriving undue
benefit from the irregular deployment of State resources. Exercising her constitutional powers to
take appropriate remedial action she directed that the President, duly assisted by certain State
functionaries, should work out and pay a portion fairly proportionate to the undue benefit that
had accrued to him and his family. Added to this was that he should reprimand the Ministers
involved in that project, for specified improprieties.

59 Section 1(c) and (d) of the Constitution.

60 Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another 2008 (9) BCLR
865 (CC) at para 80, per Madala J.
61 As conferred by section 182 of the Constitution.

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[3] The Public Protector’s report was submitted not only to the President, but also to the
National Assembly presumably to facilitate compliance with the remedial action in line with its
constitutional obligations to hold the President accountable.62 For well over one year, neither the
President nor the National Assembly did what they were required to do in terms of the remedial
action. Hence these applications by the Economic Freedom Fighters (EFF) and the Democratic
Alliance (DA), against the National Assembly and the President.
[4] What these applications are really about is that –
(a) 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;
(b) the President must reprimand the Ministers under whose watch State resources were
expended wastefully and unethically on the President’s private residence;
(c) this Court must declare that the President failed to fulfil his constitutional obligations, in
terms of sections 83, 96, 181 and 182;
(d) the report of the Minister of Police and the resolution of the National Assembly that sought
to absolve the President of liability, must be declared inconsistent with the Constitution and
invalid and that the adoption of those outcomes amount to a failure by the National Assembly
to fulfil its constitutional obligations, in terms of sections 55 and 181, to hold the President
accountable to ensure the effectiveness, rather than subversion, of the Public Protector’s
findings and remedial action;
(e) the Public Protector’s constitutional powers to take appropriate remedial action must be
clarified or affirmed; and
(f) the State parties, except the Public Protector, are to pay costs to the Applicants.

Background
[5] Several South Africans, including a Member of Parliament, lodged complaints with the Public
Protector concerning the security upgrades that were being effected at the President’s Nkandla
private residence. This triggered an extensive investigation by the Public Protector.
[6] The Public Protector concluded that several improvements were non-security features.63 Since
the State was in this instance under an obligation only to provide security for the President at his

62 Sections 42(3) and 55(2) of the Constitution read with section 8(2)(b)(iii) of the Public Protector Act 23 of 1994.
63 Secure in Comfort: Report on an investigation into allegations of impropriety and unethical conduct relating to the
installation and implementation of security measures by the Department of Public Works in respect of the
private residence of President Jacob Zuma at Nkandla in KwaZulu-Natal Province Report No 25 of 2013/14 at
para 11.
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private residence, any installation that has nothing to do with the President’s security amounts to
undue benefit or unlawful enrichment to him and his family and must therefore be paid for by him.
[7] The Public Protector said that the President acted in breach of his constitutional obligations
in terms of section 96(1), (2)(b) and (c) of the Constitution which provides:
Conduct of Cabinet members and Deputy Ministers
(1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of
ethics prescribed by national legislation.
(2) Members of the Cabinet and Deputy Ministers may not —
...
(b) act in any way that is inconsistent with their office, or expose themselves to any
situation involving the risk of a conflict between their official responsibilities and
private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or
improperly benefit any other person.
In the same breath she concluded that the President violated the provisions of the Executive
Members’ Ethics Act64 and the Executive Ethics Code.65 These are the national legislation and
the code of ethics contemplated in section 96(1).

[8] The Public Protector’s finding on the violation of section 96 was based on the self-evident
reality that the features identified as unrelated to the security of the President, checked against
the list of what the South African Police Service (SAPS) security experts had themselves
determined to be security features,66 were installed because the people involved knew they
were dealing with the President. When some government functionaries find themselves in that
position, the inclination to want to please higher authority by doing more than is reasonably
required or legally permissible or to accede to a gentle nudge by overzealous and ambitious
senior officials to do a “little wrong” here and there, may be irresistible. A person in the position
of the President should be alive to this reality and must guard against its eventuation. Failure to
do this may constitute an infringement of this provision.
[9] There is thus a direct connection between the position of President and the reasonably
foreseeable ease with which the specified non-security features, asked for or not, were installed
at the private residence. This naturally extends to the undue enrichment.67 Also, the mere fact of
the President allowing non˗security features, about whose construction he was reportedly
aware, to be built at his private residence at government expense, exposed him to a “situation
involving the risk of a conflict between [his] official responsibilities and private interests”. 68 The

64 82 of 1998.
65 Chapter 1 of the Ministerial Handbook: A Handbook for Members of the Executive and Presiding officers
(7 February 2007) at pages 7-15.
66 Public Protector’s Report, at paras 7.14.2 and 7.14.4.
67 Section 96(2)(c) of the Constitution.
68 Section 96(2)(b) of the Constitution.

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potential conflict lies here. On the one hand, the President has the duty to ensure that State
resources are used only for the advancement of State interests. On the other hand, there is the
real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from
indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a
risk. It does not even have to materialise.
[10] Having arrived at the conclusion that the President and his family were unduly enriched as
a result of the non-security features, the Public Protector took remedial action against him in
terms of section 182(1)(c) of the Constitution. The remedial action taken reads:
11.1 The President is to:
11.1.1 Take steps, with the assistance of the National Treasury and the SAPS, to
determine the reasonable cost of the measures implemented by the DPW
[Department of Public Works] at his private residence that do not relate to
security, and which include [the] visitors’ centre, the amphitheatre, the cattle kraal
and chicken run and the swimming pool.
11.1.2 Pay a reasonable percentage of the cost of the measures as determined with the
assistance of the National Treasury, also considering the DPW apportionment
document.
11.1.3 Reprimand the Ministers involved for the appalling manner in which the Nkandla
Project was handled and state funds were abused.
11.1.4 Report to the National Assembly on his comments and actions on this report within
14 days.69
[11] Consistent with this directive, the President submitted his response to the National Assembly
within 14 days of receiving the report, followed by yet another response about five months later.
[12] For its part, the National Assembly set up two Ad Hoc Committees, 70 comprising its
members, to examine the Public Protector’s report as well as other reports including the one
compiled, also at its instance, by the Minister of Police. After endorsing the report by the Minister
exonerating the President from liability and a report to the same effect by its last Ad Hoc
Committee, the National Assembly absolved the President of all liability. Consequently, the
President did not comply with the remedial action taken by the Public Protector.
[13] Dissatisfied with this outcome, the EFF launched this application, claiming that it falls within
this Court’s exclusive jurisdiction. It, in effect, asked for an order affirming the legally binding
effect of the Public Protector’s remedial action; directing the President to comply with the Public
Protector’s remedial action; and declaring that both the President and the National Assembly
acted in breach of their constitutional obligations. The DA launched a similar application in the
Western Cape Division of the High Court, Cape Town and subsequently to this Court
conditional upon the EFF’s application being heard by this Court.

69 Public Protector’s Report at para 11.

70 The first Ad Hoc Committee was formed to consider the President’s report along with all other reports (produced
by Special Investigation Unit, Public Protector, Joint Standing Committee on Intelligence and the Task Team);
the last Ad Hoc Committee was formed to consider the Minister of Police’s report.
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[14] It is fitting to mention at this early stage that eight days before this matter was heard, the
President circulated a draft order to this Court and the parties. After some parties had
expressed views on aspects of that draft, a revised version was circulated on the day of the
hearing. The substantial differences between the two drafts are that, unlike the first, the second
introduces the undertaking by the President to reprimand certain Ministers in terms of the
remedial action and also stipulates the period within which the President would personally pay a
reasonable percentage of the reasonable costs of the non-security upgrades after a
determination by National Treasury. Also, the Auditor-General has been left out as one of the
institutions that were to assist in the determination of the amount payable by the President.
Otherwise, the essence of both draft orders is that those aspects of the Public Protector’s
remedial measures, still capable of enforcement, would be fully complied with.
[34] I must emphasise that agent-specificity is primarily established by section 83. The somewhat
indirectly imposed obligation merely provides reinforcement for it. An indirectly imposed obligation
is one that is not derived from section 83(b), but arises from the exercise of a constitutional
power, like that conferred on the Public Protector by the Constitution. It nails the obligation down
on the President. When an obligation is imposed on the President specifically as a result of the
exercise of a constitutional power, … the indirectly imposed obligations cannot be dealt with as
if the section 83(b) obligations do not exist. For, they impose all-encompassing obligations on
the President in relation to the observance of the Constitution. In sum, section 83(b) lays the
foundation which is most appropriately complemented by the imposition of an obligation through
the exercise of a constitutional power.
[35] In this case, the requirement that the President failed to fulfil a constitutional obligation that
is expressly imposed on him is best satisfied by reliance on both sections 83(b) and 182(1)(c) of
the Constitution. … section 182(1)(c) does impose an actor˗specific obligation. Although section
182 leaves it open to the Public Protector to investigate State functionaries in general, in this
case, the essential link is established between this section and section 83 by the remedial
action actually taken in terms of section 182(1)(c). In the exercise of that constitutional power,
the Public Protector acted, not against the Executive or State organs in general, but against the
President himself. Compliance was required only from the President. He was the subject of the
investigation and is the primary beneficiary of the non-security upgrades and thus the only one
required to meet the demands of the constitutionally-sourced remedial action.
[36] There is a primary obligation, flowing directly from section 182(1)(c), imposed only on the
President to take specific steps in fulfilment of the remedial action. The President’s alleged
disregard for the remedial action taken against him, does seem to amount to a breach of a
constitutional obligation.

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[41] The National Assembly is also said to have breached its constitutional obligations imposed
by sections 55(2) and 181(3) of the Constitution. Section 55(2) provides:
The National Assembly must provide for mechanisms –
(a) to ensure that all executive organs of state in the national sphere of government are
accountable to it; and
(b) to maintain oversight of—
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.
[42] Skinned to the bone, the contention here is that the National Assembly failed to fulfil its
constitutional obligation to hold the President accountable. Just to recap, what triggered the
duty to hold the President accountable? The Public Protector furnished the National Assembly
with her report which contained unfavourable findings and the remedial action taken against the
President. The National Assembly resolved to absolve the President of compliance with the
remedial action instead of facilitating its enforcement as was expected by the Public Protector. It
is on this basis argued that it failed to fulfil its constitutional obligations to hold him accountable.
[44] As in the case of the President, the National Assembly also has an actor˗specific
constitutional obligation imposed on it by section 182(1)(b) and (c) read with section 8(2)(b)(iii)
of the Public Protector Act. Crucially, the Public Protector’s obligation “to report on that conduct”
means to report to the National Assembly, in terms of section 182(1)(b) of the Constitution read
with section 8 of the Public Protector Act. She reported to the National Assembly for it to do
something about that report. Together, these sections bring home into the Chamber of the
National Assembly the constitutional obligation to take appropriate remedial action. Although
remedial action was not taken against the National Assembly, the report in terms of section
182(1)(b) read with section 8(2)(b)(iii) of the Act was indubitably presented to it for its “urgent
attention … or … intervention”. That constitutionally-sourced obligation is not shared, not even
with the National Council of Provinces. It is exclusive to the National Assembly. When that
report was received by the National Assembly, it effectively operationalised the House’s
obligations in terms of sections 42(3) and 55(2) of the Constitution. The presentation of that
report delivered a constitutionally-derived obligation to the National Assembly for action. And it
is alleged that it failed to fulfil these obligations in relation to the remedial action.

The purpose of the office of the Public Protector

[48] The history of the office of the Public Protector, and the evolution of its powers over the
years were dealt with in two judgments of the Supreme Court of Appeal.71 I do not think that
much benefit stands to be derived from rehashing that history here. It suffices to say that a
collation of some useful historical data on that office may be gleaned from those judgments.

71 South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others [2015] 4 All SA
719 (SCA) para 31 and The Public Protector v Mail & Guardian Ltd and Others 2011 (4) SA 420 (SCA) para 5.
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[49] Like other Chapter Nine institutions, the office of the Public Protector was created to
“strengthen constitutional democracy in the Republic”.72 To achieve this crucial objective, it is
required to be independent and subject only to the Constitution and the law. It is demanded of it,
as is the case with other sister institutions, to be impartial and to exercise the powers and
functions vested in it without fear, favour or prejudice.73 I hasten to say that this would not
ordinarily be required of an institution whose powers or decisions are by constitutional design
always supposed to be ineffectual. Whether it is impartial or not would be irrelevant if the
implementation of the decisions it takes is at the mercy of those against whom they are made. It
is also doubtful whether the fairly handsome budget, offices and staff all over the country and
the time and energy expended on investigations, findings and remedial actions taken, would
ever make any sense if the Public Protector’s powers or decisions were meant to be
inconsequential. The constitutional safeguards in section 181 would also be meaningless if
institutions purportedly established to strengthen our constitutional democracy lacked even the
remotest possibility to do so.
[50] We learn from the sum-total of sections 181 and 182 that the institution of the Public
Protector is pivotal to the facilitation of good governance in our constitutional dispensation. 74 In
appreciation of the high sensitivity and importance of its role, regard being had to the kind of
complaints, institutions and personalities likely to be investigated, as with other Chapter Nine
institutions, the Constitution guarantees the independence, impartiality, dignity and effectiveness
of this institution as indispensable requirements for the proper execution of its mandate. The
obligation to keep alive these essential requirements for functionality and the necessary impact
is placed on organs of State. And the Public Protector is one of those deserving of this
constitutionally-imposed assistance and protection. It is with this understanding that even the
fact that the Public Protector was created, not by national legislation but by the supreme law, to
strengthen our constitutional democracy, that its role and powers must be understood.
[51] The office of the Public Protector is a new institution – different from its predecessors like the
“Advocate General” or the “Ombudsman” and only when we became a constitutional democracy
did it become the “Public Protector”. That carefully selected nomenclature alone, speaks volumes
of the role meant to be fulfilled by the Public Protector. It is supposed to protect the public from
any conduct in State affairs or in any sphere of government that could result in any impropriety or
prejudice. The amendments75 to the Public Protector Act have since added unlawful enrichment

72 Section 181(1) of the Constitution.

73 Section 181(2) of the Constitution.
74 See also Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 161.
75 See Public Protector Amendment Act 113 of 1998.

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and corruption76 to the list. Among those to be investigated by the Public Protector for alleged
ethical breaches, are the President and Members of Executive in national and provincial sphere.77
[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.78 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.
[53] Hers are indeed very wide powers that leave no lever of government power above scrutiny,
coincidental “embarrassment” and censure. This is a necessary service because State resources
belong to the public, as does State power. The repositories of these resources and power are to
use them, on behalf and for the benefit of the public. When this is suspected or known not to be
so, then the public deserves protection and that protection has been constitutionally entrusted to
the Public Protector. This finds support in what this Court said in the Certification case:
[M]embers of the public aggrieved by the conduct of government officials should be able to
lodge complaints with the Public Protector, who will investigate them and take appropriate
remedial action.79
[54] 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.
[55] Her investigative powers are not supposed to bow down to anybody, not even at the door of
the highest chambers of raw State power. The predicament though is that mere allegations and

76 See section 6(4)(a)(iii) and (iv) of the Public Protector Act.

77 See sections 1, 3 and 4 of the Executive Members’ Ethics Act read with section 96(1) of the Constitution.
78 See section 34 of the Constitution.
79 Certification case para 161.

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investigation of improper or corrupt conduct against all, especially powerful public office-
bearers, are generally bound to attract a very unfriendly response. 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.
[56] 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. The
Public Protector is a critical and indeed indispensable factor in the facilitation of good
governance and keeping our constitutional democracy strong and vibrant.

The nature and meaning of “as regulated by” and “additional powers and functions”
[57] Our Constitution is the supreme law of the Republic. It is not subject to any law including
national legislation unless otherwise provided by the Constitution itself.80 The proposition that
the force or significance of the investigative, reporting or remedial powers of the
Public Protector has somehow been watered down by the provisions of the Public Protector Act,
is irreconcilable with the supremacy of the Constitution, which is the primary source of those
powers. To put this argument81 to rest, once and for all, its very bases must be dealt with. The
first basis is grounded on section 182(1) in so far as it provides that “the Public Protector has
the power, as regulated by national legislation”. The second is section 182(2), which says that
“the Public Protector has the additional powers and functions prescribed by national legislation”.
[58] The constitutional powers of the Public Protector are to investigate irregularities and corrupt
conduct or practices in all spheres of government, to report on its investigations and take
appropriate remedial action. Section 182(1) and (2) recognises the pre-existing national legislation
which does regulate these powers and confer additional powers and functions on the Public
Protector. This means that since our Constitution is the supreme law, national legislation cannot
have the effect of watering down or effectively nullifying the powers already conferred by the
Constitution on the Public Protector. The national legislation is the Public Protector Act and would,
like all other laws, be invalid if inconsistent with the Constitution. In any event section 182(1)
alludes to national legislation that “regulates” the Public Protector’s three-dimensional powers.

80 See for example section 179(3) and (4) of the Constitution.

81 This is what the National Assembly argued.
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[59] That most of the powers provided for by the Public Protector Act were already in place
when the Constitution came into operation does not affect the constitutionally prescribed
regulatory and supplementary role of the Act. The drafters of the Constitution must have been
aware of the provisions of the Act. This is apparent from the words “as regulated” in section
182(1). If the legislation that was to regulate were not yet in place, words like “to be regulated”
or similar expressions that point to the future, would in all likelihood have been employed.
Notably, the Public Protector Act was amended no fewer than five times 82 since the coming into
operation of the Constitution. Furthermore, its long title, substituted in 1998, reads: “To provide
for matters incidental to the office of the Public Protector as contemplated in the Constitution of
the Republic of South Africa, 1996; and to provide for matters connected therewith”. This buries
the proposition that Parliament has not yet enacted legislation that would regulate the
constitutional powers of the Public Protector and provide for additional powers and functions. If
it were to be amended again that would, as with all other legislation, simply be for the purpose
of improving on what the Public Protector Act has already done.
[60] “Regulate power” in this context and in terms of its ordinary grammatical meaning connotes
an enablement of the correct exercise of the constitutional power. The Constitution points to a
functional aid that would simplify and provide details with respect to how the power in its
different facets is to be exercised. For example, the Public Protector Act provides elaborate
guidelines on how the power to investigate, report and take remedial action is to be exercised. 83
[61] Section 182(2) envisages “additional” but certainly not “substitutionary” powers. It contemplates
“additional powers and functions”. Giving the word “additional” its ordinary grammatical meaning,
it means “extra” or “more” or “over and above”. Nothing about “additional” in this context could
ever be reasonably understood to suggest the removal or limitation of the constitutional powers. A
reading of section 6 of the Public Protector Act bears this out. The Public Protector Act did not
purport to nor could it validly denude the Public Protector of her constitutional powers. On the
contrary and by way of example, section 6(4)(a)(iii) and (iv) adds expressly, unlawful enrichment
or corruption to the powers and functions she already had. The power to investigate institutions

82 Amended through Act 47 of 1997, Act 113 of 1998, Act 2 of 2000, Act 22 of 2003 and Act 12 of 2004.
83 Some of the incidences of regulation are located in section 6(4). It regulates the powers of the Public Protector,
including how: she is to initiate an investigation; remedial action is to be taken or what form it may take; and
information is to be shared with other law enforcement authorities to the extent that it may be necessary to do
so. Section 6(9) regulates the time-frame within which a complaint may be validly referred to the Public
Protector. Other elements of regulation are to be found in section 7. They relate to: the initiation of
investigations; the procedure to be followed; the exclusion of some people from the Public Protector’s
investigative proceedings; the right to be heard and to challenge evidence; the form in which evidence may be
lodged; and the oath or affirmation and subpoenas. Section 7A regulates the entering of premises by the
Public Protector for the purpose of investigations. Section 8 regulates the power to submit the reports and
when to keep them confidential.
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in which the State is the majority or controlling shareholder, undue delay, unfair and discourteous
conduct have also been added to the investigative powers of the Public Protector.84
[62] A useful regulatory framework for the fruitful exercise of the Public Protector’s powers does,
as promised, exist. By reference in the Constitution and subsequent statutory amendments, more
powers and functions were added to those already listed in section 182(1) of the Constitution.
The remedial action that could be resorted to under different circumstances, is also detailed in the
Public Protector Act, for greater clarity and effectiveness. Likewise, the circumstances and manner
in which reports on the investigations are to be presented, and to whom, reinforce the harmonious
correlation between the relevant provisions of the supreme law and the Public Protector Act.

Legal effect of remedial action

[63] Section 182(1)(c) of the Constitution provides that the “Public Protector has the power, as
regulated by national legislation … to take appropriate remedial action”. This remedial action is
also provided for in somewhat elaborate terms in section 6 of the Public Protector Act. What then
is the legal status or effect of the totality of the remedial powers vested in the Public Protector?
[64] The power to take remedial action is primarily sourced from the supreme law itself. And the
powers and functions conferred on the Public Protector by the Act owe their very existence or
significance to the Constitution. Just as roots do not owe their life to branches, so are the
powers provided by national legislation incapable of eviscerating their constitutional forebears
into operational obscurity. The contention that regard must only be had to the remedial powers
of the Public Protector in the Act and that her powers in the Constitution have somehow been
mortified or are subsumed under the Public Protector Act, lacks merit. To uphold it would have
the same effect as “the tail wagging the dog”.85
[65] Complaints are lodged with the Public Protector to cure incidents of impropriety, prejudice,
unlawful enrichment or corruption in government circles. This is done not only to observe the
constitutional values and principles necessary to ensure that the “efficient, economic and
effective use of resources [is] promoted”,86 that accountability finds expression, but also that high
standards of professional ethics are promoted and maintained.87 Achieving this requires difference-

84 All the powers set out in section 6 accord and are harmoniously coexistent with section 182. Powers or functions
have thus either been added or regulated. Mediation, conciliation, negotiation and giving advice to a
complainant regarding how best to secure an appropriate remedy; bringing what appears to be an offence to
the attention of the prosecuting authority; referring a matter to an appropriate body or authority or making
suitable recommendations to remedy the complaint; and resolving any complaint by “any other means that may
be expedient in the circumstances”, are all regulatory and additional powers. And they are consistent with and
flow from the constitutional power “to take appropriate remedial action” and provision for “additional powers and
functions”.
85 SABC v DA at para 43.
86 Section 195(1)(b) of the Constitution.
87 Section 195(1)(a) of the Constitution.

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making and responsive remedial action. Besides, one cannot really talk about remedial action
unless a remedy in the true sense is provided to address a complaint in a meaningful way.
[66] The language, context and purpose of sections 181 and 182 of the Constitution give
reliable pointers to the legal status or effect of the Public Protector’s power to take remedial
action. That the Public Protector is required to be independent and subject only to the
Constitution and the law, to be impartial and exercise her powers and perform her functions
without fear, favour or prejudice,88 is quite telling. And the fact that her investigative and
remedial powers target even those in the throne-room of executive raw power, is just as
revealing. That the Constitution requires the Public Protector to be effective and identifies the
need for her to be assisted and protected, to create a climate conducive to independence,
impartiality, dignity and effectiveness,89 shows just how potentially intrusive her investigative
powers are and how deep the remedial powers are expected to cut.
[67] The obligation to assist and protect the Public Protector so as to ensure her dignity and
effectiveness is relevant to the enforcement of her remedial action. The Public Protector would
arguably have no dignity and be ineffective if her directives could be ignored willy-nilly. The
power to take remedial action that is so inconsequential that anybody, against whom it is taken,
is free to ignore or second guess, is irreconcilable with the need for an independent, impartial
and dignified Public Protector and the possibility to effectively strengthen our constitutional
democracy. The words “take appropriate remedial action” do point to a realistic expectation that
binding and enforceable remedial steps might frequently be the route open to the Public
Protector to take. “Take appropriate remedial action” and “effectiveness”, are operative words
essential for the fulfilment of the Public Protector’s constitutional mandate. Admittedly in a
different context, this Court said in Fose:
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. 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.90
[68] Taking appropriate remedial action is much more significant than making a mere endeavour
to address complaints as the most the Public Protector could do in terms of the Interim
Constitution.91 It connotes providing a proper, fitting, suitable and effective remedy for whatever

88 Section 181(2) of the Constitution.

89 Section 181(3) of the Constitution.
90 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 69.
91 Section 112(1)(b) of the interim Constitution Act 200 of 1993 (interim Constitution) provided that it was competent

for the Public Protector after investigation:

To endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by—
(i) mediation, conciliation or negotiation;
(ii) advising, where necessary, any complainant regarding appropriate remedies; or
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complaint and against whomsoever the Public Protector is called upon to investigate.92 However
sensitive, embarrassing and far˗reaching the implications of her report and findings, she is
constitutionally empowered to take action that has that effect, if it is the best attempt at curing
the root cause of the complaint. Remedial action must therefore be suitable and effective.93 For
it to be effective in addressing the investigated complaint, it often has to be binding. In SABC v
DA the Supreme Court of Appeal correctly observed:
The Public Protector cannot realise the constitutional purpose of her office if other organs of
State may second-guess her findings and ignore her recommendations. Section 182(1)(c)
must accordingly be taken to mean what it says. The Public Protector may take remedial
action herself. She may determine the remedy and direct the implementation. It follows that
the language, history and purpose of section 182(1)(c) make it clear that the Constitution
intends for the Public Protector to have the power to provide an effective remedy for State
misconduct, which includes the power to determine the remedy and direct its implementation.94
[69] But, what legal effect the appropriate remedial action has in a particular case, depends on
the nature of the issues under investigation and the findings made. As common sense and section
6 of the Public Protector Act suggest, mediation, conciliation or negotiation may at times be the
way to go. Advice considered appropriate to secure a suitable remedy might, occasionally, be the
only real option. So might recommending litigation or a referral of the matter to the relevant public
authority or any other suitable recommendation, as the case might be. The legal effect of these
remedial measures may simply be that those to whom they are directed are to consider them
properly, with due regard to their nature, context and language, to determine what course to follow.
[70] It is inconsistent with the language, context and purpose of sections 181 and 182 of the
Constitution to conclude that the Public Protector enjoys the power to make recommendations
that may be disregarded provided there is a rational basis for doing so.95 Every complaint
requires a practical or effective remedy that is in sync with its own peculiarities and merits. It
needs to be restated that, it is the nature of the issue under investigation, the findings made and
the particular kind of remedial action taken, based on the demands of the time, that would
determine the legal effect it has on the person, body or institution it is addressed to. 96
[71] The Public Protector’s power to take appropriate remedial action is wide but certainly not
unfettered. Moreover, the remedial action is always open to judicial scrutiny. It is also not
inflexible in its application, but situational. What remedial action to take in a particular case, will

(iii) any other means that may be expedient in the circumstances.

92 Fose para 69.
93 As above.
94 See SABC v DA para 52.
95 Democratic Alliance v South African Broadcasting Corporation Limited & Others 2015 (1) SA 551 (WCC) paras 72-4.
96 A referral of the possible offence to the National Prosecuting Authority for investigation in terms of section

6(4)(c)(i) of the Public Protector Act might for example not be acted upon because it was investigated already.
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be informed by the subject-matter of investigation and the type of findings made. Of cardinal
significance about the nature, exercise and legal effect of the remedial power is the following:
(a) The primary source of the power to take appropriate remedial action is the supreme law
itself, whereas the Public Protector Act is but a secondary source;
(b) It is exercisable only against those that she is constitutionally and statutorily empowered to
investigate;
(c) Implicit in the words “take action” is that the Public Protector is herself empowered to
decide on and determine the appropriate remedial measure. And “action” presupposes,
obviously where appropriate, concrete or meaningful steps. Nothing in these words
suggests that she necessarily has to leave the exercise of the power to take remedial
action to other institutions or that it is power that is by its nature of no consequence;
(d) She has the power to determine the appropriate remedy and prescribe the manner of its
implementation;97
(e) “Appropriate” means nothing less than effective, suitable, proper or fitting to redress or
undo the prejudice, impropriety, unlawful enrichment or corruption, in a particular case;
(f) Only when it is appropriate and practicable to effectively remedy or undo the complaint
would a legally binding remedial action be taken;
(g) Also informed by the appropriateness of the remedial measure to deal properly with the
subject-matter of investigation, and in line with the findings made would a non-binding
recommendation be made or measure be taken; and
(h) Whether a particular action taken or measure employed by the Public Protector in terms of
her constitutionally allocated remedial power is binding or not or what its legal effect is,
would be a matter of interpretation aided by context, nature and language.
May remedial action be ignored?
[72] It has been suggested, initially by both the President and the National Assembly, that since
the Public Protector does not enjoy the same status as a Judicial Officer, the remedial action
she takes cannot have a binding effect. The President has since changed his position but it
appears, only in relation to this case, not necessarily as a general proposition. By implication,
whomsoever she takes remedial action against, may justifiably and in law, disregard that
remedy, either out of hand or after own investigation. This very much accords with the High
Court decision in DA v SABC to the effect that:
For these reasons I have come to the conclusion that the findings of the Public Protector are
not binding and enforceable. However, when an organ of state rejects those findings or the
remedial action, that decision itself must not be irrational.98
It is, of course, not clear from this conclusion who is supposed to make a judgement call
whether the decision to reject the findings or remedial action is itself irrational. A closer reading
of this statement seems to suggest that it is the person against whom the remedial action was
made who may reject it by reason of its perceived irrationality. And that conclusion is not only
worrisome but also at odds with the rule of law.99

97 SABC v DA para 52.

98 DA v SABC para 74.
99 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic

of South Africa and Others 2000 (2) SA 674 (CC) at para 20 and Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others 1998 (12) BCLR 1458 (CC) para 58.
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[73] The judgment of the Supreme Court of Appeal is correct in recognising that the Public
Protector’s remedial action might at times have a binding effect.100 When remedial action is
binding, compliance is not optional, whatever reservations the affected party might have about
its fairness, appropriateness or lawfulness. For this reason, the remedial action taken against
those under investigation cannot be ignored without any legal consequences.
[74] This is so, because our constitutional order hinges also on the rule of law. No decision
grounded on the Constitution or law may be disregarded without recourse to a court of law. To
do otherwise would “amount to a licence to self-help”.101 Whether the Public Protector’s
decisions amount to administrative action or not, the disregard for remedial action by those
adversely affected by it, amounts to taking the law into their own hands and is illegal. No binding
and constitutionally or statutorily sourced decision may be disregarded willy-nilly. It has legal
consequences and must be complied with or acted upon. To achieve the opposite outcome
lawfully, an order of court would have to be obtained. This was aptly summed up by Cameron J
in Kirland as follows:
The fundamental notion – that official conduct that is vulnerable to challenge may have legal
consequences and may not be ignored until properly set aside – springs deeply from the rule
of law. The courts alone, and not public officials, are the arbiters of legality. As Khampepe J
stated in Welkom. … ‘(t)he rule of law obliges an organ of state to use the correct legal
process.’ For a public official to ignore irregular administrative action on the basis that it is a
nullity amounts to self-help. It invites a vortex of uncertainty, unpredictability and irrationality.102
[75] 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 we hold. 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.

Remedial action taken against the President

[76] The remedial action that was taken against the President has a binding effect. This flows
from the fact that the cattle kraal, chicken run, swimming pool, visitors’ centre and the
amphitheatre were identified by the Public Protector as non-security features for which the
President had to reimburse the State. He was directed to first determine, with the assistance of
the SAPS and National Treasury, the reasonable costs expended on those installations and
then determine a reasonable percentage of the costs so determined, that he is to pay. The

100 SABC v DA para 53.

101 MEC: Health, Eastern Cape & Another v Kirland Investments (Pty) Ltd 2014 (5) BCLR 547 (CC) para 89.
102 Kirland para 103.

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President was required to provide the National Assembly with his comments and the actions he
was to take on the Public Protector’s report within 14 days of receipt of that report and to
reprimand the Ministers involved, for the misappropriation of State resources under their watch.
[77] Concrete and specific steps were therefore to be taken by the President. Barring the need
to ascertain and challenge the correctness of the report, it was not really necessary to
investigate whether the specified non-security features were in fact non-security features.
Features bearing no relationship to the President’s security had already been identified. The
President was enjoined to take definite steps to determine how much he was supposed to pay
for the listed non-security features. If any investigation were to be embarked upon, to determine
whether some installations were non-security in nature, it was to be in relation to those additional
to the list of five for which payment was certainly required. The report to the National Assembly and
the reprimand of the affected Ministers also required no further investigation.
[78] This does not mean that there is an absolute bar to what some see as a “parallel”
investigative process regardless of its intended end-use. For it cannot be correct that upon
receipt of the Public Protector’s report with its unfavourable findings and remedial measures, all
the President was in law entitled to do was comply even if he had reason to doubt its
correctness. That mechanical response is irreconcilable with logic and the rights exercisable by
anybody adversely affected by any unpleasant determination. The President was, like all of us
and for the reasons set out in some detail earlier, entitled to inquire into the correctness of those
aspects of the report he disagreed with. That inquiry could well lead to a conclusion different
from that of the Public Protector. And such a contrary outcome is legally permissible. The
question would then be how the President responds to the Public Protector’s report and the
remedial action taken, in the light of other reports sanctioned or commissioned by him.
[79] Incidentally, the President mandated the Minister of Police to investigate and report on –
whether the President is liable for any contribution in respect of the security upgrades having
regard to the legislation, past practices, culture and findings contained in the respective reports.
[80] The National Assembly also commissioned the Minister’s report. The upshot was a finding
that elements of the upgrades identified by the Public Protector as non-security features, were
in fact security features for which the President was not to pay. Consequently the Minister of
Police “exonerated” the President from the already determined liability. Although the remedial
action authorised the President’s involvement of the SAPS and arguably the Minister, it was not
for the purpose of verifying the correctness of the remedial action taken against him by the
Public Protector. It was primarily to help him determine what other non-security features could
be added to the list of five, and then to assist in the determination of the reasonable monetary

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value of those upgrades in collaboration with National Treasury.103 But again, the President was
at large to commission any suitably qualified Minister to conduct that investigation into the
correctness of the Public Protector’s findings.
[81] The end-results of the two streams of investigative processes were mutually destructive.
The President should then have decided whether to comply with the Public Protector’s remedial
action or not. If not, then much more than his mere contentment with the correctness of his own
report was called for. A branch of government vested with the authority to resolve disputes by
the application of the law should have been approached. And that is the Judiciary.104 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, on the papers before us, 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.
[82] Emboldened by the Minister’s conclusion, and a subsequent resolution by the National
Assembly to the same effect, the President neither paid for the non-security installations nor
reprimanded the Ministers involved in the Nkandla project. This non-compliance persisted until
these applications were launched and the matter was set down for hearing. And this is where
and how the Public Protector’s remedial action was second˗guessed in a manner that is not
sanctioned by the rule of law. Absent a court challenge to the Public Protector’s report, all the
President was required to do was to comply. Arguably, he did, but only with the directive to
report to the National Assembly.
[83] The President thus failed to uphold, defend and respect the Constitution as the supreme
law of the land. This failure is manifest from the substantial disregard for the remedial action
taken against him by the Public Protector in terms of her constitutional powers. The second
respect in which he failed relates to his shared section 181(3) obligations. He was duty-bound
to, but did not, assist and protect the Public Protector so as to ensure her independence,
impartiality, dignity and effectiveness by complying with her remedial action. He might have
been following wrong legal advice and therefore acting in good faith. 105 But that does not detract

103 Again, this must be understood within the context of the President’s entitlement to challenge the
Public Protector’s report in a court of law, obviously even after some investigation into the correctness of the
outcome, which could be foundational to the challenge. But we know that a court challenge was never
launched and this is the basis on which the purported reliance on the outcome of the Minister’s investigation is
approached.
104 See section 165 of the Constitution.
105 See for example the High Court decision in DA v SABC paras 73-4 that held that remedial action is not binding

and may be disregarded on rational grounds.

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from the illegality of his conduct regard being had to its inconsistency with his constitutional
obligations in terms of sections 182(1)(c) and 181(3) read with 83(b).

National Assembly’s obligation to hold the Executive accountable

[84] The Public Protector submitted her report, including findings and the remedial action taken
against the President, to the National Assembly. For the purpose of this case it matters not
whether it was submitted directly or indirectly through the President. The reality is that it was at
her behest that it reached the National Assembly for a purpose. That purpose was to ensure that
the President is held accountable and his compliance with the remedial action taken, is enabled.
[85] The National Assembly’s attitude is that it was not required to act on or facilitate compliance
with the report since the Public Protector cannot prescribe to it what to do or what not to do. For
this reason, so it says, it took steps in terms of section 42(3)106 of the Constitution after receipt
of the report. Those steps were intended to ascertain the correctness of the conclusion reached
and the remedial action taken by the Public Protector, since more was required of the
National Assembly than merely rubber˗stamp her report. Broadly speaking, this is correct
because “scrutinise” means subject to scrutiny. And “scrutiny” implies a careful and thorough
examination or a penetrating or searching reflection. The Public Protector’s report relates to
executive action or conduct that had to be subjected to scrutiny, so understood.
[86] Besides, even findings by and an order of a court of law may themselves be subjected to
further interrogation or research, at the instance of the affected party, that may culminate in the
conclusion that the court was wrong. But when the conclusion is reached, the question is: how
then is it acted upon? This would explain the reviews of tribunal or Magistrates’ Court decisions
and appeals from all our courts all the way up to the apex Court. In principle there is nothing
wrong with wondering whether any unpleasant finding or outcome is correct and deploying all
the resources at one’s command to test its correctness.
[87] The National Assembly was indeed entitled to seek to satisfy itself about the correctness of
the Public Protector’s findings and remedial action before it could hold the President
accountable in terms of its sections 42(3) and 55(2) obligations. These sections impose
responsibilities so important that the National Assembly would be failing in its duty if it were to
blindly or unquestioningly implement every important report that comes its way from any
institution. Both sections 42(3) and 55(2) do not define the strictures within which the
National Assembly is to operate in its endeavour to fulfil its obligations. It has been given the
leeway to determine how best to carry out its constitutional mandate. Additionally, section

106
Section 42(3) of the Constitution reads:
The National Assembly is elected to represent the people and to ensure government by the people under the
Constitution. It does this by choosing the President, by providing a national forum for public consideration of
issues, by passing legislation and by scrutinizing and overseeing executive action.
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182(1)(b) read with section 8(2)(b)(iii) does not state how exactly the National Assembly is to
“attend urgently” to or “intervene” in relation to the Public Protector’s report. How to go about
this is all left to the discretion of the National Assembly but obviously in a way that does not
undermine or trump the mandate of the Public Protector.
[88] People and bodies with a material interest in a matter have been routinely allowed by our
courts to challenge the constitutional validity of a law or conduct of the President, constitutional
institutions or Parliament. The appointment of the National Director of Public Prosecutions 107 is
one such example, as is the extension of the term of office of the Chief Justice,108 the
constitutional validity of the proceedings of the Judicial Service Commission 109 and of rules and
processes of Parliament.110 The National Assembly and the President were in like manner
entitled to challenge the findings and remedial action of the Public Protector. It would be
incorrect to suggest that a mere investigation by the National Assembly into the findings of the
Public Protector is impermissible on the basis that it trumps the findings of the Public Protector.
Rhetorically, on what would they then base their decision to challenge the report? Certainly not
an ill-considered viewpoint or a knee-jerk reaction.
[89] There is a need to touch on separation of powers.
[90] The Executive led by the President and Parliament bear very important responsibilities and
each play a crucial role in the affairs of our country. They deserve the space to discharge their
constitutional obligations unimpeded by the Judiciary, save where the Constitution otherwise
permits. This accords with the dictates of Constitutional Principle VI, which is one of the
principles that guided our Constitution drafting process in these terms:
There shall be a separation of powers between the legislature, the executive and judiciary, with
appropriate checks and balances to ensure accountability, responsiveness and openness.111
[91] And this was elaborated on in the Certification case as follows:
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.112

107 Democratic Alliance v President of South Africa and Others 2012 (12) BCLR 1297 (CC).
108 Justice Alliance of South Africa v President of Republic of South Africa & Others, Freedom Under Law v President
of Republic of South Africa and Others, Centre for Applied Legal Studies & Another v President of Republic of
South Africa & Others 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC).
109 Helen Suzman Foundation v Judicial Service Commission [2014] ZAWCHC 136; [2014] 4 All SA 395 (WCC).
110 Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC) and Oriani-Ambrosini, MP v Sisulu, MP Speaker of the

National Assembly 2013 (1) BCLR 14 (CC).

111 See Schedule 4 to the interim Constitution and the Certification case.
112 Certification case para 109.

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[92] The Judiciary is one of the three branches of government. It does not have unlimited powers
and must always be sensitive to the need to refrain from undue interference with the functional
independence of other branches of government. It was with this in mind that this Court noted:
Courts must be conscious of the vital limits on judicial authority and the Constitution’s design
to leave certain matters to other branches of government. They too must observe the
constitutional limits of their authority. 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.
But under our constitutional democracy, the Constitution is the supreme law. It is binding on all
branches of government and no less on Parliament. … Parliament ‘must act in accordance
with, and within the limits of, the Constitution’, and 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. It would require clear language of
the Constitution to deprive this Court of its jurisdiction to enforce the Constitution.113
[93] It falls outside the parameters of judicial authority to prescribe to the National Assembly
how to scrutinise executive action, what mechanisms to establish and which mandate to give
them, for the purpose of holding the Executive accountable and fulfilling its oversight role of the
Executive or organs of State in general. The mechanics of how to go about fulfilling these
constitutional obligations is a discretionary matter best left to the National Assembly. Ours is a
much broader and less intrusive role. And that is to determine whether what the
National Assembly did does in substance and in reality amount to fulfilment of its constitutional
obligations. That is the sum-total of the constitutionally permissible judicial enquiry to be
embarked upon. And these are some of the “vital limits on judicial authority and the
Constitution’s design to leave certain matters to other branches of government”. 114 Courts
should not interfere in the processes of other branches of government unless otherwise
authorised by the Constitution. It is therefore not for this Court to prescribe to Parliament what
structures or measures to establish or employ respectively in order to fulfil responsibilities
primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority,
whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved.
At the same time, and mindful of the vital strictures of their powers, they must be on high alert
against impermissible encroachment on the powers of the other arms of government.
[94] That said, the National Assembly chose not to challenge the Public Protector’s report on
the basis of the findings made by the Minister of Police and its last Ad Hoc Committee. Instead
it purported to effectively set aside her findings and remedial action, thus usurping the authority
vested only in the Judiciary. Having chosen the President to ensure government by the people

113 Doctors for Life paras 37 and 38 in relevant part.

114 Doctors for Life para 37.
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under the Constitution, and the Public Protector Act which, read with the Constitution, provides
for the submission of the Public Protector’s report to the National Assembly,115 it had another
equally profound obligation to fulfil. And that was to scrutinise the President’s conduct as
demanded by section 42(3) and reported to it by the Public Protector in terms of section
182(1)(b) of the Constitution read with section 8(2)(b)(i), (ii) and (iii) of the Public Protector Act.
Section 8(2) provides in relevant part:
(b) The Public Protector shall, at any time, submit a report to the National Assembly on the
findings of a particular investigation if—
(i) he or she deems it necessary;
(ii) he or she deems it in the public interest;
(iii) it requires the urgent attention of, or an intervention by, the National Assembly;
(iv) he or she is requested to do so by the Speaker of the National Assembly; or
(v) he or she is requested to do so by the Chairperson of the National Council of Provinces.
[95] The Public Protector could not have submitted her report to the National Assembly merely
because she deemed it necessary or in the public interest to do so. In all likelihood she also did
not submit it just because either the Speaker of the National Assembly or Chairperson of the
National Council of Provinces asked her to do so. The high importance, sensitivity and
potentially far-reaching implications of the report, considering that the Head of State and the
Head of the Executive is himself implicated, point but only to one conclusion. That report was a
high priority matter that required the urgent attention of or an intervention by the
National Assembly.116 It ought therefore to have triggered into operation the
National Assembly’s obligation to scrutinise117 and oversee executive action and to hold the
President accountable, as a member of the Executive. 118 Also implicated was its obligation to
give urgent attention to the report, its findings and remedial action taken and intervene
appropriately in that matter.119
[96] Mechanisms that were established by the National Assembly,120 flowing from the Minister’s
report, may have accorded with its power to scrutinise before it could hold accountable. As will
appear later, what will always be important is what the National Assembly does in consequence
of those interventions. The Public Protector, acting in terms of section 182 of the Constitution
read with sections 1, 3 and 4 of the Executive Members’ Ethics Act, had already investigated
the alleged impropriety or relevant executive action and concluded, as she was empowered to
do, that the President be held liable for specific elements of the security upgrades.

115 See sections 42(3), 55(2) 182(1)(b) of the Constitution read with section 8 of the Public Protector Act.
116 Section 8(2)(b)(iii) of the Public Protector Act.
117 Section 42(3) of the Constitution.
118 Section 55(2) of the Constitution.
119 See section 182(1)(b) and (c) of the Constitution read with section 8(2)(b)(iii) of the Public Protector Act.
120 In terms of section 55(2) read with section 42(3) of the Constitution.

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[97] On a proper construction of its constitutional obligations, the National Assembly was duty-
bound to hold the President accountable by facilitating and ensuring compliance with the
decision of the Public Protector. The exception would be where the findings and remedial action
are challenged and set aside by a court, which was of course not done in this case. Like the
President, the National Assembly may, relying for example on the High Court decision in
DA v SABC, have been genuinely led to believe that it was entitled to second-guess the
remedial action through its resolution absolving the President of liability. But, that still does not
affect the unlawfulness of its preferred course of action.
[98] Second-guessing the findings and remedial action does not lie in the mere fact of the
exculpatory reports of the Minister of Police and the last Ad Hoc Committee. 121 In principle,
there may have been nothing wrong with those “parallel” processes. But, there was everything
wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a
resolution that purported to nullify the findings made and remedial action taken by the
Public Protector and replacing them with its own findings and “remedial action”. This, the rule of
law is dead against. It is a way of taking the law into one’s hands and constitutes self-help.
[99] By passing that resolution the National Assembly effectively flouted its obligations.122
Neither the President nor the National Assembly was entitled to respond to the binding remedial
action taken by the Public Protector as if it is of no force or effect or has been set aside through
a proper judicial process. The ineluctable conclusion is therefore, that the National Assembly’s
resolution based on the Minister’s findings exonerating the President from liability is inconsistent
with the Constitution and unlawful.
Remedy
[100] All parties, barring the National Assembly and the Minister of Police, appear to be
essentially in agreement on the order that would ensure compliance with the Public Protector’s
remedial action. The President’s ultimate draft order, following on the one circulated eight days
before the hearing,123 is virtually on all fours with the remedial action taken by the Public
Protector. The effect of this draft and the oral submissions by his counsel is that he accepts that
the remedial action taken against him is binding and that National Treasury is to determine the
reasonable costs, of the non-security upgrades, on the basis of which to determine a
reasonable percentage of those costs that he must pay. The President is also willing to
reprimand the Ministers in line with the remedial action. In response to that draft’s predecessor,

121 This is the last Ad Hoc Committee set up to examine the Minister’s report and make recommendations on it.
122 In terms of sections 42(3), 181(3), 182(1)(c) and 55(2) of the Constitution read with section 3(5) of the Executive
Members’ Ethics Act and section 182(1)(b) of the Constitution and section (8)(2)(b)(iii) of the Public Protector
Act.
123 The President filed a draft order with the Constitutional Court on 02 February 2016.

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the Public Protector only expressed the desire to have the nature and ambit of her powers and
the legal effect of her remedial action addressed if, as it turned out, no agreement was secured
on the basis of the President’s draft order and oral submissions were made.
[101] The only real disagreement amongst the parties about the draft order relates to the
unqualified binding effect of the Public Protector’s remedial action and whether a declaratory order
should be granted to the effect that the President failed to fulfil his constitutional obligations in
terms of sections 83, 96 and 181(3) of the Constitution and violated his oath of office. Also that
the National Assembly breached its constitutional obligations in terms of sections 55(2) and
182(1)(c) of the Constitution. These are the orders prayed for by both the EFF and the DA.
[102] This Court’s power to decide and make orders in constitutional matters is set out in
section 172 of the Constitution:
When deciding a constitutional matter within its power, 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.
[103] Declaring law or conduct inconsistent with the Constitution and invalid is plainly an
obligatory power vested in this Court as borne out by the word “must”. Unlike the discretionary
power to make a declaratory order in terms of section 38 of the Constitution, this Court has no
choice but to make a declaratory order where section 172(1)(a) applies.124 Section 172(1)(a)
impels this Court, to pronounce on the inconsistency and invalidity of, in this case, the
President’s conduct and that of the National Assembly. This we do routinely whenever any law
or conduct is held to be inconsistent with the Constitution. It is not reserved for special cases of
constitutional invalidity. Consistent with this constitutional injunction, an order will thus be made
that the President’s failure to comply with the remedial action taken against him by the Public
Protector is inconsistent with his obligations to uphold, defend and respect the Constitution as
the supreme law of the Republic;125 to comply with the remedial action taken by the Public
Protector;126 and the duty to assist and protect the office of the Public Protector to ensure its
independence, impartiality, dignity and effectiveness. 127
[104] Similarly, the failure by the National Assembly to hold the President accountable by
ensuring that he complies with the remedial action taken against him, is inconsistent with its

124 Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (4) BCLR 301 (CC) paras 106-8.
125 Section 83(b) of the Constitution.
126 Section 182(1)(c) of the Constitution.
127 Section 181(3) of the Constitution.

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obligations to scrutinise and oversee executive action128 and to maintain oversight of the
exercise of executive powers by the President.129 And in particular, to give urgent attention to or
intervene by facilitating his compliance with the remedial action.130

The following order is made:

1. This Court has exclusive jurisdiction to hear the application by the Economic Freedom Fighters.
2. The Democratic Alliance’s application for direct access is granted.
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.
4. The failure by the President to comply with the remedial action taken against him, by the
Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the
Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
5. The National Treasury must determine the reasonable costs of those measures
implemented by the Department of Public Works at the President’s Nkandla homestead
that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal,
the chicken run and the swimming pool only.
6. The National Treasury must determine a reasonable percentage of the costs of those
measures which ought to be paid personally by the President.
7. The National Treasury must report back to this Court on the outcome of its determination
within 60 days of the date of this order.
8. The President must personally pay the amount determined by the National Treasury within
45 days of this Court’s signification of its approval of the report.
9. The President must reprimand the Ministers involved pursuant to paragraph 11.1.3 of the
Public Protector’s remedial action.
10. The resolution passed by the National Assembly absolving the President from compliance
with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the
Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the
Constitution, is invalid and is set aside.
11. The President, the Minister of Police and the National Assembly must pay costs of the
applications including the costs of two counsel.

Commentary:
As a non-judicial institution, the Public Protector has Constitutional powers to investigate
maladministration and make appropriate recommendations based on her findings. Although it

128 Section 42(3) of the Constitution.

129 Section 55(2)(a) and (b) of the Constitution.
130 Section 8(2) of the Public Protector Act.

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states on page 265 of South African Constitutional Law in Context that the Public Protector
“does not usually make binding findings that can be enforced”, the case above has changed
that position. Indeed, at para 52, Mogoeng CJ paints a picture in which the Public Protector’s
findings, in the form of remedial action, are upheld and respected by the “Goliath” brought down
(taken to task) by the “David” – the man in the street – confronted with unfair or inefficient
administration or even corruption. As such, this case “put the argument [as to the status of the
findings of the Public Protector] to rest, once and for all”, affirming that the findings are binding.

The case arose out of the fact that members of the public including a Member of Parliament
lodged complaints with the [former] Public Protector, Thuli Madonsela, concerning the security
upgrades that were being effected at President Zuma’s private Nkandla residence. The Public
Protector investigated the matter and concluded that several improvements were non-security
features, and that any installation that has nothing to do with the President’s security amounts to
undue benefit or unlawful enrichment to him and his family. In this regard, the Public Protector
declared that the President had acted in breach of his constitutional obligations in terms of the
Constitution and she took remedial action requiring the President to pay back a reasonable
percentage of the cost of the non-security measures (see para 10). The Public Protector
submitted her report to the President and National Assembly requiring action. The National
Assembly set up an Ad Hoc committee to examine the Public Protector’s report and further
nominated the Minister of Police to do further investigations based on the findings of the Public
Protector. After considering the Ad Hoc committee’s report and the report of the Minister of
Police, which exonerated the President, Parliament resolved to absolve the President of all
liability. Consequently, the President did not comply with the remedial action taken by the Public
Protector. Dissatisfied with the decision of the National Assembly, the EFF joined by the DA
requested an order affirming the legally binding effect of the Public Protector’s remedial action;
directing the President to comply with the Public Protector’s remedial action and declaring that
both the President and the National Assembly acted in breach of their constitutional obligations.

Of significance is the expression found in para 31 of the case that “The President is a
constitutional being. In the Constitution the President exists, moves and has his being.” On the
strength of this, the Court found that in disregarding the remedial action taken by the Public
Protector against him, the President failed to uphold and defend the Constitution as the supreme
law of the land (see para 83). It was found that conduct of the National Assembly of passing a
resolution purportedly nullifying the findings and remedial action taken by the Public Protector
and replacing them with their own findings offended the rule of law and, it was another way of

139
taking the law into their own hands (see para 95). The persons against whom findings are made
cannot ignore the findings. They must be implemented to remedy any breach of the Constitution.
6.3 Economic Freedom Fighters & Others v Speaker of the National Assembly & Others
2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December 2017)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 76/17
In the matter between:
ECONOMIC FREEDOM FIGHTERS First Applicant
UNITED DEMOCRATIC MOVEMENT Second Applicant
CONGRESS OF THE PEOPLE Third Applicant
DEMOCRATIC ALLIANCE Intervening Party
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent
and
CORRUPTION WATCH (RF) NPC Amicus Curiae

Coram: MOGOENG CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-

Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ

Judgments: Zondo DCJ (dissenting): [1] to [128]

Jafta J (majority): [129] to [222]
…
Heard on: 5 September 2017
Decided on: 29 December 2017
JUDGMENT
ZONDO DCJ (Mogoeng CJ, Madlanga J, Zondi AJ concurring):
Introduction
[1] In this matter this Court is, once again, called upon to consider and pronounce upon
complaints by some of the political parties represented in the National Assembly that the
National Assembly has failed to fulfil some of its constitutional obligations. This case is about
Parliamentary mechanisms for holding the President of the Republic accountable and the
constitutional obligation of the National Assembly to hold him to account. It is not about holding
any President of the Republic accountable as such but about the National Assembly holding the
President of the Republic, President Jacob Zuma, accountable for his failure to implement the
Public Protector’s remedial action in the Public Protector’s report dated 19 March 2014.

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[2] The first applicant is the Economic Freedom Fighters (EFF). The second applicant is the
United Democratic Movement (UDM). The third applicant is the Congress of the People
(COPE). All these applicants are registered political parties who are represented in the National
Assembly. They are all opposition parties. Closer to the date of hearing the Democratic Alliance
(DA) brought an application for leave to be joined as an intervening party in the proceedings.
The DA made common cause with the EFF, UDM and COPE and said that it sought the same
relief as these applicants.131 Corruption Watch, an organisation that is dedicated to fighting
corruption, was admitted as amicus curiae (friend of the court). It made both written and oral
submissions in this matter. We are grateful for its assistance.
[3] The applicants’ complaints are against the National Assembly. They have cited the Speaker
of the National Assembly in her representative capacity as a representative of the National
Assembly as the first respondent and President JG Zuma as the second respondent. All orders
that the applicants seek are sought against the Speaker in her representative capacity. No order
is sought against the President. He is only cited as an interested party. Indeed, the President
has not taken part in these proceedings. Before considering the applicants’ case, it is necessary
to set out the background to this application.

Background
[4] The upgrades effected to the private residence of President Jacob Zuma, about which much
is already public knowledge by now, constitute the background to this matter. That background
includes the fact that on 19 March 2014 the Public Protector released a report on her
investigation into the upgrades to the President’s private residence. That report ended with the
Public Protector’s remedial action against the President. Part of the remedial action against the
President was that the President had to “pay a reasonable percentage of the cost of the non-
security measures effected in his private residence as determined with the assistance of the
National Treasury and reprimand the Ministers responsible for the ‘appalling’ manner in which
the Nkandla project was handled and funds were abused.” For a long time after the
Public Protector had taken remedial action against the President, the President did not
implement the Public Protector’s remedial action. It is not necessary in this judgment to give
details of what happened after the Public Protector had released her report because that is
covered sufficiently in the judgment of this Court in EFF 1.132 The applicants’ case focuses on

131 The DA is the largest opposition party in Parliament and its leader is the Leader of the Opposition. See section
57(2)(d) of the Constitution.
132 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National

Assembly 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) (EFF 1).
141
the period after the delivery of that judgment. The relevant background to this matter falls under
that period.
[5] On 31 March 2016 this Court handed down its judgment in EFF 1. Some of its conclusions
about the President were that –
(a) the President neither paid for the non-security features of the upgrades nor
reprimanded the relevant Ministers; and
(b) in neither paying for the non-security installations nor reprimanding the affected
Ministers, the President second guessed the Public Protector’s remedial action in a
manner that is not sanctioned by the rule of law; and
(c) the President failed to uphold, defend and respect the Constitution as the supreme law
of the land. The Court said that “this failure was manifest from the substantial disregard
for the remedial action taken against him by the Public Protector in terms of her
constitutional powers”; and
(d) the President’s failure to comply with the Public Protector’s remedial action was
inconsistent with the Constitution and invalid.
[6] On 1 April 2016, the day after this Court had handed down its judgment, the President
addressed the nation on the judgment. He welcomed the judgment unreservedly. He then said
that he respected the role of Parliament to hold the Executive to account “as true
representatives of our people”. He also said that he respected the judgment and would abide by
it. He pointed out that he had “consistently stated that [he] would pay an amount towards the
Nkandla non-security upgrades once this had been determined by the correct authority”. He
asserted that he had “never knowingly or deliberately set out to violate the Constitution, which is
the supreme law of the Republic”.133
[7] The President stated that he “did not act dishonestly or with any personal knowledge of the
irregularities by the Department of Public Works with regards to the Nkandla project”. He said
that his intention “was not in pursuit of corrupt ends or to use state resources to unduly benefit
[himself] and [his] family”. He also asserted that there was no deliberate effort or intention to
subvert the Constitution on his part. He urged all parties to respect the judgment and abide by it.
[8] On 5 April 2016 the Leader of the Opposition134 moved in the National Assembly a motion for
the removal from office of the President in terms of section 89 of the Constitution. The basis
advanced by the DA in support of its motion was that the President had committed a serious

133 Media Statement by President Jacob Zuma in response to the Constitutional Court judgment on the Nkandla
security upgrades, Union Buildings, published on The Presidency http://www.thepresidency
.gov.za/speeches/media-statement-president-jacob-zuma-response-constitutional-court-judgement-nkandla.
134 Section 57(2)(d) of the Constitution provides that the rules and orders of the National Assembly must provide for

“the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition”.
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violation of the Constitution in failing to implement the Public Protector’s remedial action. The
commission of a serious violation of the Constitution or the law is one of the grounds listed in
section 89 of the Constitution for the removal of a President.
[9] Paragraph 2(2) of that motion required “that the National Assembly acknowledges that
President Zuma seriously violated the Constitution when he undermined the Public Protector’s
findings when he failed to implement the Public Protector’s remedial action.” This subparagraph
of that notice of motion required the National Assembly to conclude that the President had
seriously violated the Constitution in failing to implement the Public Protector’s remedial action.
After this conclusion in paragraph 2(2), paragraph 2(4) required that the National Assembly
“condemns the actions of the President and resolves to remove [him] from office in terms of
section 89(1)(a) of the Constitution”. This meant that the motion required the National Assembly
to first conclude that the President had seriously violated the Constitution, then condemn his
actions and, thereafter, resolve to remove him from office. The EFF, UDM, and COPE
supported that motion and actively participated in the debate in the National Assembly. That
motion was deliberated and voted upon but it was defeated.
[10] The DA’s motion did not include a resolution that the National Assembly establish an ad
hoc Committee to conduct an investigation or inquiry in terms of section 89 to establish whether
the President had committed a serious violation of the Constitution. In 2014 the Leader of the
Opposition – who was the leader of the DA in the National Assembly – successfully moved a
motion in the National Assembly for the establishment of an ad hoc Committee to determine
whether the President had committed a serious violation of the Constitution as contemplated in
section 89 of the Constitution in regard to his role in the Nkandla project. That ad hoc
Committee was established but had not completed its task when Parliament was dissolved
ahead of the 2014 general election. In 2015 the current Leader of the Opposition moved a
motion in the National Assembly for the establishment of an ad hoc Committee to determine
whether the President had committed a serious violation of the Constitution as contemplated in
section 89 thereof in regard to the departure of President Omar Al Bashir from South Africa despite
the fact that a court had issued an order that he should not be allowed to leave the country.
[11] In the months that followed the motion for the removal of the President on 5 April 2016,
there were Question and Answer sessions in the National Assembly in which the President was
asked questions concerning his failure to implement the Public Protector’s remedial action and
he answered those questions.
[12] On 10 November 2016 the Leader of the Opposition moved a motion of no confidence in
the President in terms of section 102 of the Constitution read with the relevant rules of the

143
National Assembly.135 That motion related to the President’s failure to implement the Public
Protector’s remedial action. The motion was deliberated and voted upon but was defeated
because it was not supported by the majority of the members of the National Assembly. The
EFF, UDM and COPE supported that motion and actively participated in the debate.
[13] The Acting Speaker of the National Assembly, Mr Lechesa Tsenoli, has in his
supplementary affidavit drawn attention to the fact that on 8 August 2017 another motion of no
confidence in the President was moved, deliberated and voted upon in the National Assembly.
That vote was conducted by secret ballot. The Acting Speaker said that this was after the
Speaker had ruled that the vote had to be conducted by secret ballot following upon this Court’s
judgment in UDM.136 That motion also related to, among others, the President’s failure to
implement the Public Protector’s remedial action. The Acting Speaker said that that motion of
no confidence was also defeated.

Exclusive jurisdiction
[14] The applicants brought this application on the basis that this Court has exclusive jurisdiction
in terms of section 167(4)(e) of the Constitution.137 For this Court to have exclusive jurisdiction,
a matter must be one in which Parliament or the President is said to have “failed to fulfil a
constitutional obligation”. In a number of cases this Court has dealt with the question of when
this Court can be said to have exclusive jurisdiction. These include EFF 1. The applicants’ case
is that the National Assembly has a constitutional obligation to hold the President accountable
for his failure to implement the Public Protector’s report of 19 March 2014 and it has failed to

135 Rule 129 provides:

Motions of no confidence in terms of Section 102 of Constitution
(1) A member may propose that a motion of no confidence in the Cabinet or the President in terms of Section 102 of the
Constitution be placed on the Order Paper.
(2) The Speaker must accord such motion of no confidence due priority and before scheduling it must consult with the
Leader of Government Business and the Chief Whip.
(3) The motion must comply, to the satisfaction of the Speaker, with the prescripts of any relevant law or any relevant
rules and orders of the House and directives and guidelines approved by the Rules Committee, before being placed
on the Order Paper, and must include the grounds on which the proposed vote of no confidence is based.
(4) The Speaker may request an amendment of, or in any other manner deal, with a notice of a motion of no confidence
which contravenes the law, rules and orders of the House or directives and guidelines approved by the Rules
Committee.
(5) After proper consultation and once the Speaker is satisfied that the motion of no confidence complies with the
aforementioned prescribed law, rules and orders of the House and directives or guidelines of the Rules Committee,
the Speaker must ensure that the motion of no confidence is scheduled, debated and voted on within a reasonable
period of time given the programme of the Assembly.
(6) The debate on a motion of no confidence may not exceed the time allocated for it by the Speaker, after aforesaid
consultation process.
(7) If a motion of no confidence cannot reasonably be scheduled by the last sitting day of an annual session, it must be
scheduled for consideration as soon as possible in the next annual session.
(8) Rules 120, 123 and 127 do not apply to motions of no confidence in terms of this rule.
136 United Democratic Movement v Speaker, National Assembly 2017 (5) SA 300 (CC); 2017 (8) BCLR 1061 (CC).
137 Section 167 provides:
(4) Only the Constitutional Court may –
…
(e) decide that Parliament or the President has failed to fulfil a constitutional obligation
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fulfil this obligation. The applicants also initially said that the National Assembly has a
constitutional obligation to put in place mechanisms and processes for holding the President
accountable in regard to his failure to implement the Public Protector’s report but it has also
failed to fulfil this obligation. The applicants later changed their case in regard to this aspect as
will be shown later. It is the alleged failure by the National Assembly to fulfil these constitutional
obligations that the applicants contend gives this Court exclusive jurisdiction.
[15] In EFF 1 this Court discussed its exclusive jurisdiction in regard to alleged failures by both
the President and the National Assembly to fulfil their respective constitutional obligations. The
constitutional obligation that the National Assembly was said to have failed to fulfil was the
obligation to hold the President accountable. In this case that is one of the obligations upon
which the applicants rely.
[16] In EFF 1 this Court said that one of the indications that a constitutional obligation that the
President or the National Assembly failed to fulfil is one contemplated in section 167(4)(e) of the
Constitution is that the obligation must be specifically-imposed on the President or the National
Assembly, as the case may be.138 The obligation on the National Assembly to hold the
President accountable is a specifically-imposed obligation. As was also said by this Court in
EFF 1, it is a primary and undefined obligation imposed on the National Assembly. This Court
pointed out in EFF 1 that, to determine whether the National Assembly has fulfilled or breached
its obligations, will entail a resolution of very crucial political issues. Indeed, said this Court in
that case, it is an exercise that may trench on sensitive areas of the separation of powers. As
this Court said in EFF 1, this exercise –
“could at times border on second-guessing the National Assembly’s constitutional
power or discretion. This is a powerful indication that this Court is entitled to exercise
its exclusive jurisdiction in this matter. But that is not all.”
[17] The obligation on the National Assembly to hold the President accountable after the Public
Protector’s Report was held in EFF 1 to be exclusive to the National Assembly. It was not
shared.139 That applies to this case as well. The constitutional obligation involved in this case is
the same constitutional obligation that was involved in EFF 1 on the part of the National
Assembly.In the light of this and what this Court said in EFF 1 in regard to the constitutional
obligation that the National Assembly had allegedly failed to fulfil in that case, this Court has
exclusive jurisdiction in the present case as well. In the light of this conclusion, the issue of
direct access falls away.
Merits

138 EFF 1 para 43.

139 EFF 1 para 44.
145
[18] To understand what the applicants’ case is, it is convenient to start with the relief the
applicants seek in their notice of motion. Apart from orders declaring that this Court has
exclusive jurisdiction, an order that the first respondent report to this Court on certain steps
taken by her and for costs, the applicants asked for the following material orders:
2. Declaring that the first respondent failed to put appropriate mechanisms and processes
in place to hold the second respondent (‘the President’) accountable for violating the
Constitution in failing to implement the report of the Public Protector dated 19 March 2014.
3. Declaring that the first respondent has failed in her duty to apply her mind and/or to
scrutinise the violation of the Constitution by the President in the course of his failure to
implement the report of the Public Protector dated 19 March 2014.
4. Declaring that the first respondent’s failures, set out in paragraphs 2 and 3 above,
infringe sections 42(3), 48 and/or 55(2) read with sections 1(c) and 1(d) of the Constitution.
5. Directing the first respondent to put requisite processes and mechanisms in place to
hold the President accountable for his conduct (and failures) arising from, and incidental
to, the Public Protector’s report dated 19 March 2014, including processes and
mechanisms to enquire into and determine whether and to what extent the President’s
violations of the Constitution and/or other conduct satisfied the requirements of section
89(1) of the Constitution.
6. Directing the first respondent to convene a committee of Parliament and/or any other
appropriate independent mechanism, to conduct an investigation into the conduct of the
President and, in particular, whether, by any act and/or omission, the President has
made himself guilty of an offence or inability which would warrant the exercise of the
powers of Parliament, in terms of section 89(1) of the Constitution.
[19] Although in form the applicants ask for certain orders to be made against the Speaker, in
effect they are asking for those orders to be made against the National Assembly. This emerges
from the basis upon which the applicants cited the Speaker in these proceedings.
[20] The applicants’ case is based on their founding affidavit deposed to by the leader of the
EFF, Mr Julius Sello Malema. The Presidents of the UDM and COPE, Mr Bantu Holomisa and
Mr Patrick Mosiuoa Lekota, respectively, have signed confirmatory affidavits in which, on behalf
of their political parties, they make common cause with the EFF and confirm Mr Malema’s
affidavit. In that affidavit the deponent explained the basis upon which the applicants cited the
Speaker. He said:
The first respondent is the Speaker of the National Assembly, who is cited as nominal
respondent on behalf of the National Assembly in terms of section 23 of the Powers,

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Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004,

read with section 2 of the State Liability Act 20 of 1957.
[21] What logically flows from the basis upon which the Speaker is cited is that each one of the
orders that the applicants ask this Court to make against her can only be made if this Court
concludes that there is an obligation attached to the National Assembly which it has failed to
fulfil. In other words, to get the orders that the applicants seek against the Speaker, it will not
help them to point to an obligation which attaches to the Speaker but does not attach to the
National Assembly.
[22] To point to an obligation attaching to the Speaker but not to the National Assembly would
only have helped the applicants if they had cited her simply as the Speaker in respect of
obligations that attach to the Speaker as such. An example of this latter scenario is De Lille v
Speaker of the National Assembly140 and Speaker of National Assembly v De Lille
MP.141 Therefore, the foundation for any orders that we may make in this matter has to be
obligations we conclude the National Assembly has which we say it has failed to fulfil. This is, of
course, in line with the fact that the sections of the Constitution upon which the applicants’ case
is based are sections that relate to obligations of the National Assembly and not obligations of
the Speaker. These are sections 42(3), 55, 89, 102 and others.
[23] It is appropriate to go back to the orders that the applicants ask this Court to make in effect
against the National Assembly. If one analyses those orders, one will see that the applicants’
ultimate objective is for this Court to make the orders embodied in prayers 2, 3, 4, 5 and 6 of the
notice of motion.
[24] Prayer 2 in the notice of motion is for a declaratory order that, in effect, the National
Assembly “has failed to put all appropriate mechanisms and processes in place to hold
[President Jacob Zuma] accountable for violating the Constitution [by] failing to implement the
report of the Public Protector dated 19 March 2014”. This Court can only make this order if it
concludes that the National Assembly failed to put in place mechanisms and processes for
holding the President accountable for failing to implement the Public Protector’s report and the
National Assembly acted in breach of its obligations in so failing. If this Court is unable to reach
this conclusion, it cannot grant prayer 2.
[25] Prayer 3 is for a declaratory order that in effect the National Assembly has failed to
“scrutinise the violation of the Constitution by the President” in failing “to implement the report of
the Public Protector dated 19 March 2014”. For the Court to grant this prayer, it would have to first
conclude that the National Assembly failed to scrutinise the violation of the Constitution by the

140 De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C) para 1.
141 Speaker of the National Assembly v De Lille MP [1999] 4 All SA 241 (A).
147
President. A conclusion that the National Assembly has failed to scrutinise a violation of the
Constitution by the President would mean that it has failed to hold the President accountable for
his violation of the Constitution. The President’s violation of the Constitution was a failure to
implement the Public Protector’s report. If this Court cannot reach this conclusion, prayer 3
cannot be granted.
[26] Prayer 4 is for a declaratory order that the National Assembly’s alleged failures referred to
in prayers 2 and 3 constitute an infringement of sections 42(3) and/or 55(2) read with section 1(c)
and (d) of the Constitution. Nothing more needs to be said about prayer 4. Prayer 5 is for an order,
in effect that the National Assembly “put the requisite processes and mechanisms in place to
hold the President accountable for his conduct (and failures) arising from, and incidental to, the
report of the Public Protector dated 19 March 2014, including processes and mechanisms to
enquire into and determine whether and to what extent the President’s violations of the
Constitution and/or other conduct satisfied the requirements of section 89(1) of the
Constitution”. Prayer 5 is linked to, and dependent upon, prayer 2. If prayer 2 is not granted,
prayer 5 can also not be granted. This is so because prayer 5 can only be granted if … the
failure on the part of the National Assembly referred to in prayer 2 has been established.
[27] Prayer 6 seeks an order that the National Assembly “convene a committee of Parliament
and/or any other appropriate independent mechanism, to conduct an investigation into the
conduct of the President and, in particular, whether, by any act or omission, the President had
made himself guilty of an offence or inability which would warrant the exercise of the powers of
Parliament, in terms of section 89(1) of the Constitution”. So, both prayers 5 and 6 are
connected with, or, based on, section 89 of the Constitution. Prayer 6 can also not be granted if
the Court were to find that there has been no failure on the part of the National Assembly to put
in place mechanisms and processes which the applicants could have used to have a Committee
established by the National Assembly to conduct an investigation or inquiry relating to a section
89 procedure. So, prayer 6 can also not be granted if prayer 2 is not granted.
[28] In the light of the above, the fundamental questions which this matter raises are –
(a) whether the National Assembly has failed to put all appropriate mechanisms and
processes in place to hold the President accountable for violating the Constitution by
failing to implement the report of the Public Protector dated 19 March 2014;
(b) whether the National Assembly has failed in its duty to scrutinise the violations of the
Constitution by the President in the course of his failure to implement the report of the
Public Protector;
(c) whether, if this Court determines the issue in paragraph (a) in the applicants’ favour,
this Court should make the order in prayer 5; and

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(d) whether, if this Court determines the issue in paragraph (b) in the applicants’ favour,
this Court should make the order in prayer 6.

Did the National Assembly fail to put in place mechanisms and processes to hold the President
accountable for failing to implement the Public Protector’s report?
…

JAFTA J (Cameron J, Froneman J, Kathree-Setiloane AJ, Kollapen AJ, Mhlantla J, Theron J

concurring):
[129] I have had the benefit of reading the judgment prepared by the Deputy Chief Justice (first
judgment). I agree that this matter falls within the exclusive jurisdiction of this Court because the
claims raised by the applicants concern a failure by the National Assembly to fulfil its obligations
under various provisions of the Constitution. In terms of section 167(4) of the Constitution only
this Court may decide that Parliament has failed to fulfil a constitutional obligation. 142
[130] I also agree with the first judgment that two main issues arise. The first is whether the
Assembly has failed to put in place mechanisms and processes for holding the President
accountable in terms of section 89 of the Constitution. Although the relief set out in the notice of
motion is inelegantly formulated, when read in its entirety, it becomes apparent that the
mechanisms and processes the applicants claim that the Assembly failed to put in place relate
to section 89(1) of the Constitution. In prayer 5, the applicants seek an order directing the
Assembly to put in place mechanisms and processes for determining whether the President’s
alleged violations of the Constitution and other conduct meet the requirements of section
89(1). And in prayer 6 they seek an order directing the Assembly to establish a committee or an
appropriate mechanism to investigate whether grounds for removing the President from office in
terms of section 89 exist.
[131] The second issue is whether the Assembly has failed to hold the President to account in
that it failed to scrutinise the violation of the Constitution by the President. This was said to have
arisen from the President’s failure to implement the Public Protector’s report of 19 March 2014.
[132] However, I am unable to agree with the conclusion reached by the first judgment on both
issues and the order it proposes to the extent that the application should be dismissed. In my

142Section 167(4) of the Constitution provides:

Only the Constitutional Court may –
(a) 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;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances
anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or
(f) certify a provincial constitution in terms of section 144.
149
view, the application must succeed on both issues. But, before I address these issues, it is
necessary to outline briefly the constitutional scheme and the factual background.

Constitutional framework
[133] Our Constitution, like many others, devolves power among the three arms of the State in
all spheres. To prevent one arm or sphere from exercising powers which belong to other arms,
the Constitution adopted the principle of separation of powers. 143 In order to prevent the abuse
of power by those who hold office in the three arms, checks and balances were put in
place. With regard to the President and the National Executive, these checks and balances are
contained in Chapter 5 of the Constitution. This chapter consists of 20 sections. The chapter is
devoted to matters including election of the President; an outline of his or her powers; his or her
term of office; the establishment of Cabinet and an outline of its powers and functions; and the
removal of the President and Cabinet from office.
[134] As to the removal of the President from office, two provisions are relevant. These are
sections 89 and 102. This Court has described them in the recent past as tools for holding the
President to account. Cabinet and the President hold office for the duration of their term if they
continue to enjoy the confidence of the Assembly. Should Cabinet lose the Assembly’s
confidence for whatever reason and a motion of no confidence, supported by a simple majority
of its members be passed, Cabinet must vacate office.144 The President may reconstitute a new
Cabinet. But if a motion of no confidence is passed against the President, then the President
and the entire Cabinet must resign.
[135] What is apparent from the language of section 102 is that both the President and Cabinet
need the support of the majority of members of the Assembly to remain in office. Absent that
support they run the risk of being removed through a motion of no confidence. Although other
members of Cabinet are appointed by the President, they too are subject to the Assembly’s
power of removal from office.
[136] The other provision that regulates the President’s removal from office is section 89 with
which we are concerned in this matter. A removal effected in terms of this provision must be
supported by a vote of at least two thirds of members of the Assembly and that removal must be
based on one or more of the grounds listed in section 89(1). If the President is removed from

143 International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) and South
African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC).
144 Section 102 of the Constitution provides:

(1) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in
the Cabinet excluding the President, the President must reconstitute the Cabinet.
(2) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in
the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.
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office on account of inability to perform the functions of office, he or she does not lose
benefits. But if he or she is removed on the other grounds, he or she may lose benefits.145
[137] It is apparent from both sections 89 and 102 that members of the Assembly wield
enormous power. They may remove the President and Cabinet from office for only the reason
that they have lost confidence in them. Ordinarily, the loss of confidence may stem from the
manner in which the President or Cabinet performs functions or exercises power. But the
Constitution does not prescribe any conditions for the exercise of the power to remove by
means of a motion of no confidence. All that is required is a motion of no confidence supported
by a simple majority.
[138] In contrast, removal of the President by means of impeachment is subject to certain
conditions. It must have, as its foundation, at least one of the grounds listed in
section 89(1). And the impeachment itself must be supported by a two thirds majority. The
reason for this distinction in process is that impeachment is punitive. Depending on the ground
on which it is based, the impeached President may lose all benefits and be barred from
occupying any public office.
[139] To enable members of the Assembly to exercise its powers without outside influence, the
Constitution insulates them from repercussions from any quarter.146 Section 58 of the
Constitution guarantees freedom of speech in the Assembly which is subject only to its rules
and orders. Not even legislation may limit free speech in the Assembly. 147 Members are immune
from civil and criminal liability, arrest or imprisonment for performing their functions in the
Assembly. Without this protection some of the functions of the Assembly could easily be
frustrated by those who would be adversely affected by the Assembly’s decisions.
[140] In UDM the Chief Justice observed:
The frustration or disappointment of the losing presidential hopeful and his or her
supporters could conceivably have a wide range of prejudicial consequences for
Members who are known to have contributed to the loss. To allow Members of the

145 Section 89(2) of the Constitution provides:

Anyone who has been removed from the office of President in terms of subsection (1)(a) or (b) may not receive any
benefits of that office, and may not serve in any public office.
146 Section 58 of the Constitution provides:

(1) Cabinet members, Deputy Ministers and members of the National Assembly –
(a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and
(b) 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 Assembly 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 Assembly
or any of its committees.
(2) Other privileges and immunities of the National Assembly, Cabinet members and members of the Assembly
may be prescribed by national legislation.
147 Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 487 (CC); 2016 (5) BCLR 577 (CC) para 47.

151
 National Assembly to vote with their conscience and choose who they truly believe to
be the best presidential material for our country, without any fear of reprisals, a
secret ballot has been identified as the best voting mechanism. Conversely, a
Member of Parliament could be exposed to a range of reasonably foreseeable
prejudicial consequences when called upon to pronounce through a vote on the
President’s accountability or continued suitability for the highest office.148
[141] Since the Assembly is elected “to represent the people and to ensure government by the
people under the Constitution”, the interests served and advanced by the exercise of its powers
must be the collective interests of the people it represents.149 The powers of the Assembly must
primarily be exercised to promote only the people’s interests and the institutional objectives of
the Assembly.
[142] The Assembly “ensures government by the people” by scrutinising and overseeing
executive action. It also achieves this purpose by choosing the President and providing a
national forum for public consideration of issues. This underscores the role played by the
Assembly as the people’s representative.
[143] Although the Assembly plays no role in the appointment of members of the Cabinet, it has
been empowered to remove them from office. In doing so the Assembly may target Cabinet
members only or together with the President. It is the Assembly alone which is the repository of
these powers of removal and which may be exercised in the interests of the people it
represents. This explains the low threshold for exercising the section 102 power. Although the
Constitution imposes no condition for the exercise of that power, it is implicit from the
constitutional scheme that members of the Assembly may lose confidence in Cabinet or the
President if their conduct is at variance with the people’s or national interest.
[144] The fact that members of the Assembly assume office through nomination by political
parties ought to have a limited influence on how they exercise the institutional power of the
Assembly. Where the interests of the political parties are inconsistent with the Assembly’s
objectives, members must exercise the Assembly’s power for the achievement of the
Assembly’s objectives. For example, members may not frustrate the realisation of ensuring a
government by the people if its attainment would harm their political party. If they were to do so,
they would be using the institutional power of the Assembly for a purpose other than the one for
which the power was conferred. This would be inconsistent with the Constitution.

148
UDM paras 74-5.
149
Section 42(3) of the Constitution provides:
The National Assembly is elected to represent the people and to ensure government by the people under the
Constitution. It does this by choosing the President, by providing a national forum for public consideration of
issues, by passing legislation and by scrutinizing and overseeing executive action.
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[145] Political parties themselves derive their existence and power from the Constitution, first
and foremost.150 Section 19 affords every citizen the right to form a political party and the right
to participate in the activities of a party of his or her choice, including the right to campaign for a
political party or its causes. But all these rights must be exercised in a manner that is consistent
with other provisions of the Constitution. They cannot be invoked to undermine the powers and
functions of the Assembly. This is the backdrop against which the claims made by the
applicants must be assessed.

Factual background
[146] Following complaints lodged by members of the public and a member of Parliament, the
Public Protector undertook an extensive investigation into the construction of certain
improvements at the President’s private residence in Nkandla. Upon completion of her
investigation, the Public Protector made adverse findings against the President. Flowing from
those findings, she declared the remedial action which the President was required to carry out.
[147] But the President failed to comply with the Public Protector’s remedial action. Various
actions were undertaken by the President in response to the Public Protector’s findings and
recommendations. These included an instruction to the Minister of Police to investigate whether
improvements effected at his residence included non-security features, as the Public Protector
had found, and, if so, the amount which constituted a reasonable percentage to be paid by the
President. The Minister produced a report that exonerated the President from any liability.
[148] The Assembly also got involved after the Public Protector had submitted her report to the
Speaker. The Assembly set up two ad hoc committees to examine all reports on the matter.
The Public Protector’s report and the one by the Minister of Police were among those that were
considered by the committees. These committees preferred the Minister’s report which
exempted the President from liability over the Public Protector’s report, and presented their own
report on the matter to the Assembly.
[149] For its part, the Assembly endorsed the committees’ report and absolved the President of
all liability. Consequently, the President did not comply with the Public Protector’s remedial
action. Unhappy with this turn of events, the EFF instituted an application in this Court seeking
declaratory relief. This included an order declaring that the President had failed to fulfil a
constitutional obligation; a declaration that the Public Protector’s remedial action had a legally

150Section 19(1) of the Constitution provides:

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.
See Ramakatsa v Magashule 2013 (2) BCLR 202 (CC).
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binding effect on the President; an order directing the President to comply with the remedial
action and a declaration to the effect that the Assembly too had breached a constitutional
obligation. It was contended that the Assembly failed to hold the President to account as it was
obliged by section 42(3) of the Constitution. It will be recalled that this provision obliges the
Assembly to, among other duties, scrutinise and oversee executive action.
[150] Delivering judgment in EFF 1, this Court held with regard to the Assembly:
On a proper construction of its constitutional obligations, the National Assembly was
duty-bound to hold the President accountable by facilitating and ensuring compliance
with the decision of the Public Protector. The exception would be where the findings and
remedial action are challenged and set aside by a court, which was of course not done in
this case. Like the President, the National Assembly may, relying for example on the
High Court decision in DA v SABC, have been genuinely led to believe that it was entitled
to second-guess the remedial action through its resolution absolving the President of
liability. But, that still does not affect the unlawfulness of its preferred course of action.
Second-guessing the findings and remedial action does not lie in the mere fact of the
exculpatory reports of the Minister of Police and the last Ad Hoc Committee. In principle,
there may have been nothing wrong with those ‘parallel’ processes. But, there was
everything wrong with the National Assembly stepping into the shoes of the Public
Protector, by passing a resolution that purported effectively to nullify the findings made
and remedial action taken by the Public Protector and replacing them with its own
findings and ‘remedial action’. This, the rule of law is dead against. It is another way of
taking the law into one’s hands and thus constitutes self-help. By passing that resolution
the National Assembly effectively flouted its obligations. Neither the President nor the
National Assembly was entitled to respond to the binding remedial action taken by the
Public Protector as if it is of no force or effect or has been set aside through a proper
judicial process. The ineluctable conclusion is therefore, that the National Assembly’s
resolution based on the Minister’s findings exonerating the President from liability is
inconsistent with the Constitution and unlawful.151
[151] It is apparent from this statement that the Court concluded that the Assembly in
exonerating the President from liability had acted in a manner that was unlawful and
inconsistent with the Constitution. This was a serious indictment on the Assembly which, as set
out above, plays a pivotal role in our democratic order. Without it playing its role properly, the
objective of government by the people may not be realised.

151 EFF 1 paras 97-9.

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[152] For his part, the President conceded on the eve of the hearing of that case that the Public
Protector’s remedial action was binding and submitted to the Court a draft order that was
consistent with the Public Protector’s remedial action.152 The Court went on to hold:
Section 172(1)(a) impels this Court, to pronounce on the inconsistency and invalidity of,
in this case, the President’s conduct and that of the National Assembly. This we do
routinely whenever any law or conduct is held to be inconsistent with the Constitution. It
is not reserved for special cases of constitutional invalidity. Consistent with this
constitutional injunction, an order will thus be made that the President’s failure to comply
with the remedial action taken against him by the Public Protector is inconsistent with his
obligations to uphold, defend and respect the Constitution as the supreme law of the
Republic; to comply with the remedial action taken by the Public Protector; and the duty
to assist and protect the office of the Public Protector to ensure its independence,
impartiality, dignity and effectiveness. Similarly, the failure by the National Assembly to
hold the President accountable by ensuring that he complies with the remedial action
taken against him, is inconsistent with its obligations to scrutinise and oversee executive
action and to maintain oversight of the exercise of executive powers by the President.
And in particular, to give urgent attention to or intervene by facilitating his compliance
with the remedial action.153
[153] In the result the Court issued an order in these terms:
4. The failure by the President to comply with the remedial action taken against him,
by the Public Protector in her report of 19 March 2014, is inconsistent with
section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the
Constitution and is invalid.
...
10. The resolution passed by the National Assembly absolving the President from
compliance with the remedial action taken by the Public Protector in terms of
section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and
(b) and 181(3) of the Constitution, is invalid and is set aside.154
[154] The complaint in the current proceedings is that the Assembly has failed to hold the
President to account in terms of section 89(1) of the Constitution. This complaint was formulated
in these words:
Some six months after the Constitutional Court delivered its judgment, the National
Assembly remains silent. The President has not been held to account. In particular, he

152 EFF 1 para 100.

153 EFF 1 paras 103-4.
154 EFF 1 para 105.

155
 has not been asked to explain his violations of the Constitution, which are self-evidently
of a serious nature. He has also not been taken to task in relation to the statements he
made to Parliament before the judgment of the Constitutional Court where he sought to
falsely justify himself by misrepresenting the findings and report of the Public Protector
and by the inaccurate portrayal of the role played by the state in the funding of the
upgrades to his home.
[155] In elaboration of this claim it was asserted:
The applicants submit that there is a duty imposed on Parliament by the various sections
of the Constitution mentioned in the notice of application to scrutinise the conduct of the
President and to require him to account for his well-established violations of the
Constitution. ... The National Assembly is under a duty to consider the numerous
violations by the President and in particular to take a view as to the seriousness of the
violations by the President and whether any sanction is necessary. The President also
violated the ethical codes of Parliament. This alone constitutes serious misconduct and a
violation of the law, both impeachable offences.
[156] With regard to the alleged failure by the Assembly to put in place mechanisms to hold the
President accountable, the applicants aver:
Section 55(2) requires the National Assembly to provide mechanisms for accountability
and oversight. Despite having a host of potential mechanisms available, the Speaker
and the National Assembly have failed to provide any. For example, section 89(1) of the
Constitution empowers the National Assembly to remove the President on the grounds of
a serious violation of the Constitution, or for serious misconduct. Doing so requires a two
thirds majority of the National Assembly, but it also requires a prior assessment of the
severity of the President’s misconduct.
[157] The DA, which was allowed to intervene as a party in these proceedings, pleaded the
second issue thus:
9 The essence of the DA’s submissions is that the National Assembly has not only
breached its constitutional duties by failing to launch impeachment investigations, but it
has also breached its constitutional duties by failing to create effective mechanisms to
allow members of the National Assembly to initiate impeachment investigations and
hearings.
9.1 As the applicants have correctly submitted, impeachment processes under
section 89 of the Constitution necessarily require an investigation, to determine
whether there are grounds for impeachment, and a fair hearing to allow the
President to respond to charges.

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9.2 At present, the National Assembly has failed to create any legislation or rules
to govern the section 89 impeachment process, including mechanisms to initiate
impeachment investigations and hearings.
9.3 Impeachment proceedings are inherently urgent and controversial matters that
must be commenced and completed with all appropriate haste. In the absence of
clear impeachment procedures, set out in advance of actual cases, impeachment
proceedings are likely to be delayed or stymied by disagreements within the
National Assembly over the proper procedure for conducting impeachment
investigations and hearings. Impeachment procedures devised in the heat of the
moment are also unlikely to be fair or objective.
[158] In the supplementary answering affidavit deposed to by the Acting Speaker, the allegation
that the Assembly has not put in place “legislation or rules to govern the section 89
impeachment powers, including mechanisms to initiate impeachment investigations and
hearings” was not denied. Instead the Acting Speaker averred:
It is sufficient for [the Assembly] to ensure that it has mechanisms in place – in its Rules
and Orders – to enable the fulfilment of the oversight function in section 89(1) of the
Constitution, bearing in mind also that there are other oversight mechanisms other than
section 89(1) of the Constitution. The Constitution does not require that a step to remove
the President under section 89(1) of the Constitution must succeed in order for [the
Assembly] to have fulfilled its constitutional obligations.
[159] The Acting Speaker asserted that an impeachment process may be instituted in terms of
rule 85.155 This rule prohibits members of the Assembly from directly attacking the integrity and
dignity of other members during debates in the National Assembly. It allows for improper and
unethical conduct on the part of members to be raised by way of a substantive motion. This
prohibition also protects the President and members of Cabinet who are not members of the
Assembly. The Acting Speaker went on to state:
Since a motion in terms of section 89(1) would likely bring wrong-doing on the part of the
President to the attention of [the Assembly], it would need to comply with Rule 85(2). To

155Rule 85 provides:
(1) No member may impute improper motives to any other member, or cast personal reflections upon a member’s
integrity or dignity, or verbally abuse a member in any other way.
(2) A member who wishes to bring any improper or unethical conduct on the part of another member to the
attention of the House, may do so only by way of a separate substantive motion, comprising a clearly
formulated and properly substantiated charge that in the opinion of the Speaker prima facie warrants
consideration by the House.
(3) Subrules (1) and (2) apply also to reflections upon the President and Ministers and Deputy Ministers who are
not members of the House.
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 my knowledge, this is understood by all the political parties in [the Assembly], including
those represented in these proceedings.
[160] However, it is apparent that rule 85(2) does not regulate the impeachment process. The
rule was designed to govern improper and unethical behaviour by members of the Assembly.
Although it also shields the President and members of the Cabinet from verbal abuse during
debates in the assembly, the objective of the rule is not the serious misconduct envisaged in
section 89(1) of the Constitution. The rule does not refer at all to the other grounds listed in that
section, upon which the President may be impeached.
[161] What is more, under the rule 85 procedure alluded to by the Acting Speaker, a motion
calling for impeachment of the President would be subject to the generosity of the Speaker. This
is how the Acting Speaker put this issue:
Should a member of [the Assembly] table a substantive motion calling for the removal of
the President and the Speaker is of the view that the allegations warrant the attention of
[the Assembly], she must refer it to [the Assembly] for consideration. She has done so in
all past instances where the President’s removal was sought. There is no basis to
suggest that she may not do so in future.
[162] What emerges from this statement by the Acting Speaker is the fact that motions for
removal of the President from office were addressed in terms of rule 85. What is surprising
though is the absence of an explanation for the Speaker’s response to the EFF request, which
did not mention this process. It will be recalled that the Speaker rejected the request on the
ground that the rules do not provide for it. She did not point out to the EFF that they needed to
submit a substantive motion in terms of rule 85. Of course, one accepts that technically the
Speaker’s response was correct because what was requested by the EFF fell outside what was
provided for in the rules. But, as an impartial officer who had the duty to “ensure that the
National Assembly provides a national forum for public consideration of issues ... and
scrutinises and oversees executive action”,156 the Speaker ought to have directed the EFF to
follow rule 85 in terms of which such matters were dealt with in the past.
[163] In addition to the rule 85 process, the Acting Speaker pointed out that the impeachment
process could be dealt with in terms of rule 253 which provides for the establishment of ad hoc

156 Rule 26 provides:

(1) In exercising the authority of the Speaker, as provided for in the Constitution and legislation and the rules of
Parliament, the Speaker must –
(a) ensure that the National Assembly provides a national forum for public consideration of issues, passes
legislation and scrutinises and oversees executive action in accordance with Section 42(3) of the Constitution;
...
(3) The Speaker is responsible for the strict observance of the rules of the House and must decide questions of
order and practice in the House, such a ruling being final and binding as provided for in Rule 92.
(4) The Speaker must act fairly and impartially and apply the rules with due regard to ensuring the participation of
members of all parties in a manner consistent with democracy.
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Committees. However, the Acting Speaker’s affidavit on this point reveals a troubling confusion
in the application of the rules. He said:
Significantly, the initiator of the removal process may either request that the matter be
referred to an ad hoc committee for investigation or may even recommend that it goes
straight to [the Assembly] for debate. This is consistent with the Constitution since it is
[the Assembly], acting collectively, that has the power to remove the President under
section 89(1) of the Constitution, and the ad hoc committee is to assist it. Its composition
and workings will be controlled by [the Assembly] in terms of [the Assembly’s Rules] and
Orders. Should [the Assembly] agree that the matter be considered by a committee, it
may establish an ad hoc committee or refer the matter to an existing committee.
[164] It is not clear whether on past occasions when the Assembly dealt with impeachment
processes in terms of rule 85, any investigation contemplated in section 89(1) of the Constitution
was ever undertaken. It seems, on the Acting Speaker’s opinion, that such an investigation
depends on the choice of the person who initiates the motion. The initiator “may request that the
matter be referred to an ad hoc Committee for investigation or may even recommend that it go
straight to [the Assembly] for debate”. Where a request for establishing an ad hoc Committee is
made, the Assembly may still, according to the Acting Speaker, “refer the matter to an existing
committee”. But he does not tell us which of the existing committees is mandated to consider a
request for impeachment. Nor does he explain why an ad hoc Committee may be established in
a case where there is an existing committee with authority to consider an impeachment request.
[165] In illustrating his appreciation of what section 89 requires, the Acting Speaker concluded
by stating:
Given that section 89(1)(a) and (b) of the Constitution uses the word ‘serious’, the ad hoc
committee’s recommendation to [the Assembly] must take into account whether the
breach of section 89(1)(a) or (b), if any, was serious enough to warrant the President’s
removal from office.
[166] But the Acting Speaker’s affidavit displays non-compliance with the investigative process
referred to above, except in April 2014 when the Assembly established an ad hoc Committee at
the behest of the then Leader of the Opposition who initiated proceedings for the removal of the
President from office in terms of section 89(1) of the Constitution. However, that committee
ceased to exist before concluding its task, by reason of the Assembly’s term coming to an end.
[167] Another motion in terms of section 89(1) was tabled in the Assembly by the Leader of the
Opposition on 4 August 2015. The motion sought the removal of the President from office on
the ground that he “failed to have President Omar al-Bashir detained when he visited the
country”. No ad hoc Committee was established to undertake an investigation on that

159
occasion. Nor was the matter referred to an existing committee. Instead, the Assembly
permitted a debate to take place that was followed by voting. Although it is not clear from the
Acting Speaker’s affidavit, it may well be that this motion was processed in terms of rule 85(2)
which he had said was applied in the past.
[168] The third motion purportedly in terms of section 89(1) and calling for the President’s
removal was made by the Leader of the Opposition on 31 March 2016. This motion made
reference to judgments of the Supreme Court of Appeal and this Court in EFF 1,157 and the
Public Protector’s report on the upgrades at the President’s residence in Nkandla. A debate on
the motion was held on 5 April 2016 and that debate was followed by a vote of 235 against the
motion and 143 in favour. Again we are not told why the matter was not referred first to an ad hoc
or existing committee. We can only surmise that it too was dealt with in terms of rule 85(2).
[169] It is now convenient to consider the two issues that arise here. I propose to begin with
whether the Assembly was obliged to put in place mechanisms and procedures regulating an
impeachment process. For the Assembly may be held to be in breach if, in the first place, it was
under a duty to do so.

Duty to put mechanisms and procedures in place

[170] The determination of this issue requires us to interpret section 89 of the Constitution. This
is because section 57 empowers the Assembly to make rules and orders, regulating the general or
ordinary business.158 It is in terms of those rules and orders that the members’ right to freedom
of speech, guaranteed by section 58, may be limited. The Assembly’s rules must govern its
normal business “with due regard to representative and participatory democracy, accountability,
transparency and public involvement”.159 Those general rules and orders must provide for the
establishment, composition, power, functions, procedures and duration of committees.The rules
must also secure participation of minority parties in the Assembly’s proceedings.160

157 EFF 1 para 7.

158 Section 57 of the Constitution provides:
(1) The National Assembly 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.
(2) The rules and orders of the National Assembly must provide for –
(a) the establishment, composition, powers, functions, procedures and duration of its committees;
(b) the participation in the proceedings of the Assembly and its committees of minority parties represented in the
Assembly, in a manner consistent with democracy;
(c) 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 Assembly effectively; and
(d) the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition.
159 Section 57(1)(b) of the Constitution.
160 Section 57(2) of the Constitution.

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[171] In the current form the rules of the Assembly do not cater specifically for impeachment
proceedings envisaged in section 89 of the Constitution. The question whether this provision
requires its own special procedure depends mainly on the interpretation assigned to it.

Meaning of section 89
[172] Section 89 provides:
(1) The National Assembly, by a resolution adopted with a supporting vote of at least two
thirds of its members, may remove the President from office only on the grounds of:
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(2) Anyone who has been removed from the office of President in terms of subsection
(1)(a) or (b) may not receive any benefits of that office and may not serve in any public
office.
[173] This provision empowers the Assembly and the Assembly alone to remove the President
from office. The drafters of our Constitution were alive to the fact that the need to remove a sitting
President from office may arise. Hence section 89 allocates that power to the Assembly,
presumably because it is the Assembly that elects, from among its members, the President. It is
only fitting that the same body should have the power to remove from office the person so elected.
[174] But once the President is elected, he or she becomes the leader of the entire nation. He
or she ceases to be a member of the Assembly and is obliged to assume office within five days
from the date of election.161 In EFF 1 the Chief Justice described the President in these terms:
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

161
Section 87 of the Constitution provides:
When elected President, a person ceases to be a member of the National Assembly and, within five days, must
assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in
accordance with Schedule 2.
161
 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.162
[175] 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. This was acknowledged in Mazibuko.163
[176] The power to remove the President from office is available to the Assembly only if one of
the listed grounds is established. One of those grounds is a serious violation of the Constitution
or the ordinary law. What qualifies this ground is the word serious. The second ground is
serious misconduct and the third is inability to perform the functions of the office. None of these
grounds is defined in the Constitution.
[177] The drafters left the details relating to these grounds to the Assembly to spell out. But the
drafters could not have contemplated that members of the Assembly would individually have to
determine what constitutes a serious violation of the law or the Constitution and conduct on the
part of the President which, in the first place, amounts to misconduct and whether, in the
second place, such conduct may be characterised as serious misconduct. If this were to be the
position, then we would end up with divergent views on what is a serious violation of the
Constitution or the law and what amounts to serious misconduct envisaged in the section.
[178] And since the determination of these matters falls within the exclusive jurisdiction of the
Assembly, it and it alone is entitled to determine them. This means that there must be an
institutional pre-determination of what a serious violation of the Constitution or the law is. The
same must apply to serious misconduct and inability to perform the functions of the office. The
Acting Speaker describes the first two grounds as exhibiting wrong-doing on the part of the
President. I could not agree more. This is evident from the language of section 89(2) which
stipulates that a President removed from office on any of these two grounds may lose
benefits. Once more, it is left to the Assembly to determine circumstances under which the
President removed from office on one of those grounds may forfeit benefits.

162 EFF 1 para 20.

163 Mazibuko para 39.
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[179] For the impeachment process to commence, the Assembly must have determined that
one of the listed grounds exists. This is so because those grounds constitute conditions for the
President’s removal. A removal of the President where none of those grounds is established
would not be a removal contemplated in section 89(1). Equally, removal of the President where
none of those grounds exists would amount to a process not authorised by the section.
[180] Therefore, any process for removing the President from office must be preceded by a
preliminary enquiry, during which the Assembly determines that a listed ground exists. The form
which this preliminary enquiry may take depends entirely upon the Assembly. It may be an
investigation or some other form of an inquiry. It is also up to the Assembly to decide whether
the President must be afforded a hearing at the preliminary stage.
[181] Since the power to remove is institutional, the Assembly must decide and facilitate the
initiation of the preliminary stage. It may well be that each member of the Assembly has a right
to initiate the preliminary process. Even so, the Assembly must facilitate steps to be taken in this
regard and a process to be followed. Not only as a preliminary stage but also at the stage of
actual impeachment up to the final stage of voting on whether the President should be removed
from office, to determine whether the removal is supported by the necessary two thirds majority.
[182] Without rules defining the entire process, it is impossible to implement section 89. The
present facts, as set out in detail in the Acting Speaker’s affidavit, confirm this point. Some of
those facts were referred to earlier. It would appear that sometimes the Assembly treated an
impeachment complaint as a motion to be processed in terms of rule 85(2). On another
occasion an ad hoc Committee was established but ceased to exist before completing its task.
But notably, the Acting Speaker does not outline the procedure followed by that committee, in
carrying out its mandate. However, the Acting Speaker accepts that if the ad hoc Committee
route is followed, there may be an investigation.
[183] On this point the Acting Speaker said:
The Assembly’s Rules currently enable proceedings under section 89(1) to be initiated when
a member of the[Assembly tables a substantive motion requiring such an initiation of the
proceedings in which there may be a request for the establishment of an ad hoc committee
inter alia to gather relevant facts or to conduct an inquiry or an investigation prior to the
adoption of a resolution by the Assembly as envisaged in section 89(1) of the Constitution.
[184] The proposition that the current rules regulate the section 89(1) proceedings was based
on the Acting Speaker’s mistaken belief that rule 85(2) applies. In this regard he said: “[s]ince a
motion in terms of section 89(1) would likely bring wrong-doing on the part of the President to
the execution of the [Assembly], it would need to comply with Rule 85(2).” He also referred to
rules 123, 124 and 126, which govern motions generally. I refer to these facts not for the

163
purpose of interpreting section 89 but in order to show that the present rules are not suitable for
regulating a process required by section 89(1).
[185] The process followed in construing the section did not take us to uncharted waters. A
similar approach was followed in Mazibuko (in paras 42-7). In that matter, this Court was
confronted with the question whether section 102 of the Constitution imposed an obligation on
the Assembly to make rules that regulate specifically motions of no confidence envisaged in that
provision. The section does not expressly impose the obligation in question. It merely states that
if the Assembly, by a vote supported by a majority of its members, passes a motion of no
confidence in the President, the President and members of Cabinet must resign.
[186] Writing for the majority in Mazibuko, Moseneke DCJ held:
The Constitution requires that the Assembly must have a procedure or process which
would permit its members to deliberate and vote on a motion of no confidence in the
President. In order for members of the Assembly to vote on a motion, the rules of the
Assembly must permit a motion of no confidence in the President to be formulated,
brought to the notice of members of the Assembly, tabled for discussion and voted for in
the Assembly. The voting on a motion is done by members of the Assembly collectively.
However, section 102(2) is silent on the source or origin of the motion of no confidence.
Given the text and purpose of the provision, in our judgment, any member of the
Assembly has the right to formulate and request to have a motion of no confidence serve
before and voted for in the Assembly.

Ad hoc Committee
[187] In opposing the claim that the Assembly failed to put in place mechanisms for deciding
impeachment proceedings, the Acting Speaker also called in aid rule 253 which governs the
establishment of ad hoc Committees. He said a member of the Assembly may request that an
impeachment matter be referred to an ad hoc Committee established in terms of the rule. This
rule, he continued, requires the Assembly to “specify the task assigned to the committee, which
may include conducting an inquiry or investigation and reporting or recommending to the
[Assembly] on steps to be taken pursuant to its findings”. He then concluded:
Given that section 89(1)(a) and (b) of the Constitution uses the word ‘serious’, the ad hoc
committee’s recommendation to the [Assembly] must take into account whether the
breach of section 89(1)(a) or (b), if any, was serious enough to warrant the President’s
removal from office.
[188] Significantly, the Acting Speaker does not tell us the meaning assigned to “serious” by the
Assembly. Nor does he say what would happen if each member of the ad hoc Committee
attaches a meaning to that crucial word which is different from the interpretation of other

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members. All that he says is that the committee’s recommendation will have to state whether
the breach is serious enough to warrant the President’s removal.
[189] On this approach, it is the initiator of the process who determines whether the President
has committed a serious misconduct or a serious violation of the Constitution or the law. If the
initiator holds that opinion, he or she may request that an ad hoc Committee be established to
investigate and recommend to the Assembly that the President be removed from office. This
process lacks a sifting mechanism which would determine whether there is a case for the
President to answer.
[190] But over and above that, the ad hoc Committee process does not have a set procedure for
the committee to follow when carrying out its task. More importantly, in terms of rule 255 a
question before an ad hoc Committee is decided by “agreement among the majority of the
members present” unless the resolution establishing the committee provides otherwise.164
[191] The other shortcoming of the ad hoc Committee system which appears from the Acting
Speaker’s affidavit is that in committees, including ad hoc Committees, “parties are entitled to be
represented in substantially the same proportion as the proportion in which they are represented
in the Assembly, except where the rules prescribe the composition of the committee or the
number of members in the committee does not allow for all parties to be represented.”
[192] The rules relevant to the establishment of ad hoc Committees do not determine the size of
a committee. Nor do they require that all parties be represented. They merely state that the
resolution establishing such committee must specify the number of members to be appointed or
their names.165 If more than one party is represented, the representation mirrors their
representation in the Assembly. The majority party would have majority representation. This
raises the risk of an impeachment complaint not reaching the Assembly, even if the resolution
establishing the committee were to stipulate that what was before the committee may not be
decided by consensus, as provided in rule 255. A decision by members of the majority party in
the ad hoc Committee may prevent an impeachment process from proceeding beyond the
committee, to shield a President who is their party leader. In recognition of the point that
impeachment proceedings are partisan, the Acting Speaker averred:

164 Rule 255 provides:

Unless a resolution establishing an ad hoc committee provides otherwise, a question before an ad hoc committee
is decided when a quorum in terms of Rule 162(2) is present and there is agreement among the majority of the
members present.
165 Rule 254(1) provides:

The Assembly resolution establishing an ad hoc committee must either specify the number of members to be
appointed or the names of the members who are appointed.
165
 The initiation of such proceedings is inherently partisan, as the aim from the outset is the
removal of the President, who will almost always be a leader of a party represented in
[the Assembly].
[193] In the context of section 102 of the Constitution, this Court rejected the proposition that the
tabling of motions of no confidence envisaged in that section, with only the support of a majority
decision in a committee, was consistent with the Constitution. This Court said:
A majority decision of the programme committee on the scheduling of a motion of no
confidence could frustrate the vindication of the right envisaged in section 102(2). This
would be so because, again as in the case of consensus requirement, it would be within
the discretion and generosity of the majority within the programme committee whether a
motion of no confidence … would ever see the light of the day.166
[194] By parity of reasoning, the committee system is not suitable here too. The ad hoc
Committees do not constitute a mechanism contemplated in section 89(1) for all the reasons set
out in this judgment. In Mazibuko this Court went further to declare:
To the extent that the rules regulating the business of the programme do not protect or
advance or may frustrate the rights of the applicant and other members of the assembly in
relation to the scheduling, debating and voting on a motion of no confidence as
contemplated in section 102(2), they are inconsistent with section 102(2) and invalid to
that extent.167
[195] Here, the applicants did not seek that the rules be declared invalid to the extent that they
fail to provide for regulation of impeachment proceedings. But the similarities between Mazibuko
and this matter are remarkable. That said, however, section 102(2) with which the Court was
concerned in Mazibuko does not require proof of any conditions before a motion of no
confidence is tabled, debated and voted on. Here grounds for impeachment must be
established before the motion to remove the President from office is debated and voted on.
[196] In the result, I conclude that section 89(1) implicitly imposes an obligation on the
Assembly to make rules specially tailored for an impeachment process contemplated in that
section. And, I hold that the Assembly has in breach of section 89(1) of the Constitution failed to
make rules regulating the impeachment process envisaged in that section.

Failure to hold the President accountable

[197] The complaint pertaining to this claim is that after this Court had delivered its judgment in
EFF 1 on 31 March 2016, the Assembly failed to take action against the President in terms of
section 89(1) of the Constitution. It will be recalled that in that matter this Court held that the

166 Mazibuko para 62.

167 Mazibuko para 61.
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President had violated the Constitution by failing to uphold, defend and respect it in two
respects. First, by disregarding the remedial action taken against him by the Public
Protector. Second, by failing “to assist and protect the office of the Public Protector to ensure its
independence, impartiality, dignity and effectiveness” by complying with her remedial action.” 168
[198] The applicants contend that these breaches constitute a serious violation of the
Constitution. Furthermore, they assert that in her report the Public Protector had found that the
President had breached provisions of the Executive Members’ Ethics Act and the Executive
Ethics code as well as section 96 of the Constitution. They add to this an assertion that the
President has committed serious misconduct envisaged in section 89(1) of the Constitution.
They conclude by stating that the Assembly has done nothing to hold the President to account.
[199] While it is not accurate to say that the Assembly did nothing to hold the President
accountable since the delivery of this Court’s judgment in EFF 1, the crucial question is whether
appropriate action has been taken against the President by the Assembly, the only institution
mandated to do so. It is true, as pointed out in the first judgment, that questions were answered
by the President in the Assembly and that in November 2016, a motion of no confidence in
terms of section 102(2) of the Constitution was tabled against the President in the Assembly.
That motion was deliberated and voted upon.
[200] But it is self-evident that both these steps were not actions taken in terms of section
89(1). That section does not require the question and answer sessions. Nor does it authorise the
tabling of a motion of no confidence against the President. Such a motion may be tabled under
section 102 of the Constitution and for which the Assembly’s rules provide special procedures.
[201] That leaves out the motion for the President’s removal which was tabled on 31 March
2016 by the Leader of the Opposition. This motion was purportedly made in terms of section
89(1) of the Constitution. It was based on the judgment of this Court in EFF 1 and alleged
wrongdoing on the part of the President. It sought his removal from office.
[202] As the Acting Speaker points out in his affidavit, the motion was debated and voted on by
the members of the Assembly on 5 April 2016. The applicants participated in the debate and
supported the motion. The Acting Speaker, rightly so, criticises the applicants for now claiming
that the motion was premature, when there was no demur on their part on 5 April 2016.
[203] What needs to be decided though is whether the processing of that motion complied with
the requirements of section 89(1). If it did, that would be the end of the matter. This is because
section 89(1) does not oblige the Assembly to remove the President from office, even where

168 EFF 1 para 83.

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one or more of the listed grounds are established. On the contrary, the Assembly retains a
discretionary power to remove the President.
[204] But the process envisaged in section 89(1) involves necessarily an antecedent
determination by the Assembly to the effect that one of the listed grounds exists. This is
because those are grounds for the President’s removal. With regard to the motion of 31 March
2016, this was not done. It was simply tabled, debated and voted on.
[205] The Assembly did not approach the processing of the motion on the footing that the
President had indeed committed a serious violation of the Constitution. This was a necessary
condition for commencing a section 89 process. Without accepting that one of the listed
grounds existed, the Assembly could not authorise the commencement of a process, which
could result in the removal of the President from office. Moreover, it does not appear from the
papers that the President was afforded the opportunity to defend himself. Without knowing
whether the Assembly holds the view that the President has committed a serious violation of the
Constitution, it would be difficult for him to mount an effective defence. The procedure followed
by the Assembly here does not accord with section 89.
[206] If that motion had succeeded, it would not have constituted impeachment and removal of
the President, as contemplated in section 89(1). Instead, it would have been an unconstitutional
removal of the President from office and would have been liable to be set aside on review.
[207] The Acting Speaker agrees with the applicants that a removal of the President must be
preceded by a finding by the Assembly that the President has committed a serious misconduct
or a serious violation of the Constitution or the law. This view of the parties accords with the
language and requirements of section 89(1). If the President is removed in terms of section
89(1)(a) or (b), he or she may forfeit benefits of the office. That is why the Acting Speaker
describes those provisions as requiring proof of wrongdoing on the part of the President.
[208] Therefore, I conclude that the Assembly has failed to hold the President to account
following delivery of this Court’s judgment, as was required by section 89(1).

Remedy
[209] Having held that the Assembly has failed to fulfil two of the obligations under the
Constitution, section 172(1) of the Constitution obliges us to declare that these failures are
inconsistent with the Constitution.169 In EFF 1 this Court reaffirmed:

169 Section 172(1) of the Constitution provides:

(1) When deciding a constitutional matter within its power, 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
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Section 172(1)(a) impels this Court to pronounce on the inconsistency and invalidity of, in
this case, the President’s conduct and that of the National Assembly. This we do routinely
whenever any law or conduct is held to be inconsistent with the Constitution. It is not
reserved for special cases of constitutional invalidity.170
[210] However this Court’s remedial power is not limited to declarations of invalidity. It is much
wider. Without any restrictions or conditions, section 172(1)(b) empowers courts to make any
order that is just and equitable. In Hoërskool Ermelo the Court said on a just and equitable remedy:
The power to make such an order derives from section 172(1)(b) of the Constitution. First,
section 172(1)(a) requires a court, when deciding a constitutional matter within its power,
to declare any law or conduct that is inconsistent with the Constitution invalid to the extent
of its inconsistency. Section 172(1)(b) of the Constitution provides that when this Court
decides a constitutional matter within its power it ‘may make any order that is just and
equitable’. The litmus test will be whether considerations of justice and equity in a
particular case dictate that the order be made. In other words the order must be fair and
just within the context of a particular dispute. 171
[211] The power to grant a just and equitable order is so wide and flexible that it allows courts to
formulate an order that does not follow prayers in the notice of motion or some other pleading.
This power enables courts to address the real dispute between the parties by requiring them to
take steps aimed at making their conduct to be consistent with the Constitution. In Hoërskool
Ermelo Moseneke DCJ declared at para 97:
A just and equitable order may be made even in instances where the outcome of a
constitutional dispute does not hinge on constitutional invalidity of legislation or conduct.
This ample and flexible remedial jurisdiction in constitutional disputes 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. In
several cases, this Court has found it fair to fashion orders to facilitate a substantive
resolution of the underlying dispute between the parties. Sometimes orders of this class
have taken the form of structural interdicts or supervisory orders. This approach is
valuable and advances constitutional justice particularly by ensuring that the parties
themselves become part of the solution.

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent
authority to correct the defect.
170 EFF 1 para 103.
171 Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo 2010 (2) SA 415 (CC); 2010

(3) BCLR 177 (CC) para 96.

169
[212] Here it is just and equitable to direct the Assembly to perform its constitutional
obligations. With regard to putting in place rules that govern impeachment proceedings under
section 89(1), the Acting Speaker tells us that the process of making those rules is at an
advanced stage. Research was done on the matter and draft rules have been produced. The
process awaits inputs from political parties represented in the Assembly. The matter was
referred to parties in May 2016 but to date none of them have responded. From this lack of
response, he deduces that it must be accepted that parties prefer that rule 85 must apply to
impeachment proceedings.
[213] It may be mentioned that the inference drawn by the Acting Speaker is not the most
plausible to be deduced from the parties’ failure to respond. But even if it was, the Constitution
does not impose the obligation to make rules for impeachment upon political parties. That duty
falls squarely on the shoulders of the Assembly. It is an institutional obligation which may be
fulfilled by the Assembly alone.
[214] Moreover, I have already demonstrated that rule 85 is inapplicable to the section 89(1)
process. So, even if it was the preference of political parties, this would not relieve the
Assembly from the obligation imposed by section 89(1). Therefore, it will be just and equitable
to direct the Assembly to fulfil the relevant obligations within a fixed period of time, so as to act
in a manner that is consistent with the Constitution.
[215] The special circumstances of this case demand that the Assembly be directed to fulfil its
constitutional obligations without delay. Like motions of no confidence brought in terms of
section 102(2) of the Constitution, an impeachment complaint must be accorded priority over
other normal business of the Assembly. Once lodged the Assembly must take steps to ensure
that it is addressed without delay. It is the special office the President occupies which warrants
that these matters must be promptly addressed and resolved so that the President may
continue to perform his or her duties without a dark cloud hanging over him or her.
[216] In any event the proposed order does not usurp the Assembly’s powers. It merely directs
that the Assembly must exercise its powers without delay.
[217] The Constitution demands of all those on whom it imposes obligations, to fulfil them
diligently and without delay.172 It is the duty of this Court to ensure that this injunction is
followed. An order issued to achieve this purpose therefore cannot be described as trenching
upon the separation of powers. In Doctors for Life this Court elaborated on its responsibility in
relation to making certain that Parliament fulfils its obligations:

172 Section 237 of the Constitution provides:

All constitutional obligations must be performed diligently and without delay.
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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.173

Further judgments
[218] I have read the third and fourth judgments here. I agree with the fourth and disagree with
the third judgment. The divergence of views in this matter flows solely from different
interpretations assigned to section 89 of the Constitution. This is not novel. It happens
frequently in courts presided over by panels of Judges. But what is unprecedented is the
suggestion that the construction of the section embraced by the majority here constitutes “a
textbook case of judicial overreach.” The suggestion is misplaced and unfortunate.
[219] Conceptually it is difficult to appreciate how the interpretation and application of a
provision in the Constitution by a court may amount to judicial overreach. The Constitution itself
mandates courts to interpret and enforce its provisions. The discharge of this judicial function
cannot amount to overreach whether one agrees or disagrees with a judgment that construes
and applies the Constitution in a particular way. A disagreement with a particular interpretation
of the Constitution cannot sustain the suggestion in question.
[220] What this judgment does is to interpret section 89 of the Constitution and apply it to the
present facts. Based on the meaning assigned to this provision, I conclude that the Assembly
has failed to fulfil two obligations arising from the provision. To remedy this the Assembly must
fulfil those obligations. The order proposed does not involve the exercise by this Court of the
Assembly’s powers. On the contrary, it requires the Assembly itself to exercise those powers
and perform its constitutional functions without delay. This cannot be and is not a breach of the
principle of separation of powers but consists in no more than the Court fulfilling its
constitutionally assigned duty.

Order
[222] In the result the following order is made:
1. This Court has exclusive jurisdiction to hear the application.
2. The failure by the National Assembly 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.

173 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) para 38.
171
 3. The National Assembly must comply with section 237 of the Constitution and make rules
referred to in paragraph 2 without delay.
4. The failure by the National Assembly to determine whether the President has breached
section 89(1)(a) or (b) of the Constitution is inconsistent with this section and section
42(3) of the Constitution.
5. The National Assembly must comply with section 237 of the Constitution and fulfil the
obligation referred to in paragraph 4, without delay.
6. The National Assembly must pay costs of the application.

Commentary:
In pursuit of ensuring accountability over the executive, Parliament has the power to take
remedial action and even to dismiss members of the executive. This means that institutional
arrangements must exist to ensure democratic control over the executive since they have not
been democratically elected by the people. Specifically, the NA has special powers to ensure
democratic control over the executive. However, over the past few years it has become evident
that the NA’s powers were not sufficiently precise to be effective. It is the context of the NA’s
failure to hold former President Zuma accountable for the unjustified enrichment he derived
from the non-security upgrades at Nkandla that lead to this, the 2 nd case by the name of EFF v
Speaker of the National Assembly.

As an overarching constitutional provision, section 237 declares that all constitutional

obligations must be performed diligently and without delay. The import of this provision is
pronounced when juxtaposed against the provisions of section 89 of the Constitution that
demands that the NA resolve to impeach a President if he is found to have seriously violated
the law or the Constitution or is no longer able to fulfil his constitutionally-mandated functions.
Notwithstanding the strength of this provision, in the absence of an antecedent decision by the
NA of what exactly constitutes a serious violation of the law or the Constitution, the NA would
not be likely to succeed in holding the executive to account. As such, it is this matter which
tasked the NA with formulating a definition of “serious violation of the law or the Constitution”.

In an interesting twist, in his dissenting judgment, Mogoeng CJ termed the majority judgment
(penned by Jafta J) as “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.” The majority
vehemently denied that the decision constituted judicial overreach because the foundation for
the NA to hold the executive to account was already stipulated in the Constitution itself, but was

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merely extrapolated upon by the Court. Indeed, the majority relied on the powers vested in the
Court in terms of section 172 to make “just and equitable” remedies. Accordingly, this case
confirms that in terms of the separation of powers doctrine, it is the legislature that holds the
executive to account and it is the judiciary’s task to keep both the legislature and judiciary in
check, albeit by not intruding too egregiously into the domain of either.

Simply put, the EFF 2 case established that despite the numerous impeachment processes
instituted against former President Zuma, the NA had never fulfilled its obligation of first making
an explicit determination as to whether a serious violation of the law or the Constitution had
taken place, thus the NA had not invoked suitable and effective mechanisms to guarantee an
accountable executive.

6.4 United Democratic Movement v Speaker of the National Assembly & Others
(CCT89/17) [2017] ZACC 21 (22 June 2017)

CONSTITUTIONAL COURT OF SOUTH AFRICA

In the matter between:
UNITED DEMOCRATIC MOVEMENT Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB ZUMA Second Respondent
AFRICAN NATIONAL CONGRESS Third Respondent
DEMOCRATIC ALLIANCE Fourth Respondent
ECONOMIC FREEDOM FIGHTERS Fifth Respondent
INKATHA FREEDOM PARTY Sixth Respondent
NATIONAL FREEDOM PARTY Seventh Respondent
CONGRESS OF THE PEOPLE Eighth Respondent
FREEDOM FRONT Ninth Respondent
AFRICAN CHRISTIAN DEMOCRATIC PARTY Tenth Respondent
AFRICAN INDEPENDENT PARTY Eleventh Respondent
AGANG SOUTH AFRICA Twelfth Respondent
PAN AFRICANIST CONGRESS OF AZANIA Thirteenth Respondent
AFRICAN PEOPLE’S CONVENTION Fourteenth Respondent
and
COUNCIL FOR THE ADVANCEMENT OF THE
SOUTH AFRICAN CONSTITUTION First Amicus Curiae
UNEMPLOYED PEOPLES’ MOVEMENT Second Amicus Curiae

173
INSTITUTE FOR SECURITY STUDIES Third Amicus Curiae
SHOSHOLOZA PROGRESSIVE PARTY Fourth Amicus Curiae
Coram: Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments: Mogoeng CJ (unanimous)

JUDGMENT
Introduction

[1] South Africa is a constitutional democracy – a government of the people, by the people and
for the people through the instrumentality of the Constitution. It is a system of governance that
“we the people” consciously and purposefully opted for to create a truly free, just and united
nation. Central to this vision is the improvement of the quality of life of all citizens and the
optimisation of the potential of each through good governance.
[2] Since constitutions and good governance do not self-actualise, governance structures had to
be created to breathe life into our collective aspirations. Hence the existence of the legislative,
executive and judicial arms of the State. They each have specific roles to play and are enjoined to
inter-relate as foreshadowed by the principle that guided our constitution making process:
There shall be a separation of powers between the legislature, executive and judiciary, with
appropriate checks and balances to ensure accountability, responsiveness and openness. 174
[3] Knowing that it is not practical for all fifty five million of us to assume governance
responsibilities and function effectively in these three arms of the State and its organs, “we the
people” designated messengers or servants to run our constitutional errands for the common
good of us all. These errands can only be run successfully by people who are unwaveringly loyal
to the core constitutional values of accountability, responsiveness and openness. And this would
explain why all have to swear obedience to the Constitution before the assumption of office. 175

Essential context
[4] Unelected servants of the people serve in the Judiciary that comprises Judges and
Magistrates. Judges are selected by a constitutional body, which comprises Members of
Parliament from the ruling and opposition parties, a few Judges, a Cabinet Member, a few legal
practitioners, a university law teacher and the President’s appointees. 176 Of the candidates who
prove to be fit and proper for a judicial vacancy at the level applied for, one is then appointed by
the President.177 And like all other accountable servants of the people, their under-performance

174 Constitutional Principle VI in Schedule 4 to the interim Constitution. See also Certification of the Constitution of
Republic of South Africa 1996 (4) SA 744 (CC); (Certification case) at para 45.
175 Sections 48, 62, 87, 95 and 174 of the Constitution.
176 Section 178 of the Constitution.
177 Section 174 of the Constitution.

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or sanctionable conduct could result in their removal from office through an impeachment
process if the Judiciary, Parliament and the President so decide.178
[5] The people’s representatives in Parliament are chosen through an electoral process. Each
citizen qualified to vote may participate in that process that is designed to deliver free and fair
elections. Those who stand for public office and are elected179 must attend the first sitting of the
National Assembly.180 It is at that first sitting that at least three things over which the Judiciary
presides must happen. First, Members of the Assembly must be affirmed or sworn in.181
Second, the Speaker of the Assembly must be elected by Members. 182 Third, Members of the
Assembly must elect the President of the Republic.183 Meaning, two arms of the State, the
Judiciary and Parliament, each has a different but critical role to play in the process of electing
the Head of State and Head of the Executive after general elections. Thereafter the President
must be sworn in.184 And that oath comes with serious obligations.185
[6] The President is an indispensable actor in the proper governance of our Republic and bears
important constitutional responsibilities.186 To enable him or her to discharge these obligations,
he or she has a fairly free hand in assembling the service delivery team – another set of
servants comprising the Deputy President and a number of Ministers required to exercise the
executive authority of the Republic.187 As many Deputy Ministers as are deemed necessary may
also be appointed.188 Like Cabinet Ministers, they may be dismissed.189
[7] Public office comes with a lot of power. That power comes with responsibilities whose
magnitude ordinarily determines the allocation of resources for the performance of public
functions. The powers and resources assigned to each of these arms do not belong to the public
office-bearers who occupy positions of high authority therein. They are therefore not to be used for
the advancement of personal or sectarian interests. Amandla awethu, mannda ndiashu, maatla
ke a rona or matimba ya hina (power belongs to us) and mayibuye iAfrika (restore Africa and its
wealth) are much more than mere excitement generating slogans. They convey a very profound
reality that State power, the land and its wealth all belong to “we the people”, united in diversity.
These servants are supposed to exercise the power and control these enormous resources at

178 Section 177 of the Constitution.

179 Sections 19 and 47 of the Constitution.
180 Section 51 of the Constitution.
181 Section 48 of the Constitution.
182 Section 52 of the Constitution.
183 Section 86 of the Constitution
184 Section 87 and Schedule 2 item 1 of the Constitution.
185 Schedule 2 item 1 of the Constitution.
186 Sections 83, 84 and 85 of the Constitution. See also EFF 1 at paras 20-2.
187 Section 91 of the Constitution.
188 Section 93 of the Constitution.
189 Sections 91(2) and 93(1) of the Constitution.

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the beck and call of the people. Since State power and resources are for our common good,
checks and balances to ensure accountability enjoy pre-eminence in our governance system.
[8] This is all designed to ensure that the trappings or prestige of high office do not defocus or
derail the repositories of the people’s power from their core mandate. For this reason, public
office-bearers, in all arms of the State, must regularly explain how they have lived up to the
promises that inhere in the offices they occupy. The objective is to arrest or address
underperformance and abuse of public power and resources. Since this matter is essentially
about executive accountability, that is where the focus will be.
[9] Accountability, responsiveness, openness enjoin the President, Deputy President, Ministers
and Deputy Ministers to report fully and regularly to Parliament on the execution of their
obligations.190 After all, Parliament “is elected to represent the people and to ensure
government by the people under the Constitution”.191
[10] 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. Sight must never be lost that “all constitutional obligations must be performed diligently
and without delay”.192 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 electorate193 to removal by Parliament through a
motion of no confidence194 or impeachment.195 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.
[11] Whether that time has come and how exactly to employ any of these instruments is the
judgement call of the same Parliament that elected the President and to which he accounts. Some
Parliamentarians believe that that time has come and have tabled a motion of no confidence in
the President. They have themselves invited this Court to get involved and clarify the nature and
extent of Parliament’s power. Rightly so, because “[e]veryone has the right to have a dispute
that can be resolved by the application of law decided in a fair public hearing before a court”. 196
[12] Implicit in this application is a deep-seated concern about just how effective Parliament’s
constitutionally-prescribed accountability-enforcing mechanisms are. Do they ensure that there

190 Sections 92(2), 92(3) and 93(2) of the Constitution.

191 Section 42(3) of the Constitution.
192 Section 237 of the Constitution.
193 Section 19 of the Constitution. See also the Certification case at paras 106 and 186.
194 Section 102 of the Constitution.
195 Section 89 of the Constitution.
196 Section 34 of the Constitution.

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is enforcement of consequences for failure to honour core constitutional obligations or is it easy

to escape consequences by reason of the inefficacy of mechanisms? Does the Constitution
read with the Rules of the National Assembly give the Speaker the power to prescribe voting by
secret ballot in a motion of no confidence in the President?

Background
[13] What reportedly triggered the tabling of a motion of no confidence in the President, is that on
31 March 2017, invoking his constitutional powers,197 the President dismissed the Finance
Minister, Mr Pravin Gordhan and his Deputy, Mr Mcebisi Jonas. Very soon after their dismissal,
our economy was downgraded to a sub-investment grade otherwise known as “junk status”.
[14] It was largely because of the economic downgrade that three political parties represented in
the National Assembly, United Democratic Movement (UDM), Democratic Alliance (DA) and
Economic Freedom Fighters (EFF) asked the Speaker of the National Assembly to schedule a
motion of no confidence in the President. She agreed and scheduled it for 18 April 2017.
[15] On 6 April 2017 the UDM wrote a letter to the Speaker. She was asked to prescribe a
secret ballot as the voting procedure for the scheduled motion of no confidence in the
President. In substantiation, the UDM cited what it termed the obvious importance of the matter,
the public interest imperative that a truly democratic outcome be guaranteed and the high
likelihood that the vote would otherwise be tainted by the perceived fear of adverse and
career limiting consequences, instead of being the free will of Members. The oath or affirmation
taken by Members and considerations of accountability were added in support of a secret ballot
as the preferred voting procedure. While admitting that the Rules of the National Assembly do
not make express provision for a secret ballot in that motion, the UDM contended that some
direction could be found in sections 57 and 86(2) of the Constitution, read with item 6(a), Part A
of Schedule 3 to the Constitution and rule 2 of the Rules of the National Assembly.
[16] The UDM argued that because none of these legal instruments prohibits a secret ballot,
cumulatively they offer sufficient guidance for voting in secret. It contended that Tlouamma,198 a
decision of the High Court in the Western Cape, was distinguishable. The Court in this case had
held that there was no implied or express constitutional requirement for voting by secret ballot
on a motion of no confidence in the President. It dismissed an application for an order to compel
the National Assembly to vote on a motion of no confidence by secret ballot. The UDM reiterated
that the public interest dictated that the vote of no confidence be conducted by a secret ballot.

197 Sections 91(2) and 93(1) of the Constitution.

198 Tlouamma v Speaker of the National Assembly 2016 (1) SA 534 (WCC).
177
[17] In response, the Speaker said voting procedures in the Assembly are determined by the
Constitution and the Rules of the National Assembly and that none of them provides for a vote
on a motion of no confidence to be conducted by a secret ballot. She also relied on Tlouamma.
[18] In conclusion, the Speaker said that she had no authority in law or in terms of the Rules to
determine that voting on that motion be conducted by secret ballot. Also, she was entrusted with
the responsibility to ensure that the House is at all times able to perform its constitutional
functions in strict compliance with the Constitution, the Rules and Orders of the National
Assembly. For these reasons, she concluded that the UDM’s request could not be acceded to.
[19] Aggrieved by that response, the UDM, supported by some of the political parties
represented in the National Assembly and friends of the court,199 approached this Court to
determine whether the Constitution and the Rules of the National Assembly require or permit or
prohibit the Speaker to direct that a vote on a motion of no confidence in the President be
conducted by secret ballot. It seeks an order in the following terms:
1 It is directed that the matter is to be dealt with as an urgent application and the applicant’s
non-compliance with the ordinary rules for service and time periods is condoned.
2 It is declared that this Court has exclusive jurisdiction to determine the application,
alternatively the applicant is granted direct access to this Court.
3 It is declared that:
3.1 The Constitution requires that motions of no confidence in terms of section 102 of the
Constitution must be decided by secret ballot;
3.2 Alternatively to paragraph 3.1, it is declared that the Constitution permits motions of
no confidence in terms of section 102 of the Constitution to be decided by secret ballot.
4 It is declared that:
4.1 The National Assembly Rules permit motions of no confidence in terms of section 102
of the Constitution to be decided by secret ballot;
4.2 Alternatively to paragraph 4.1, Rules 102 to 104 of the National Assembly Rules are
unconstitutional and invalid to the extent that they preclude secret ballots being used
for motions of no confidence.
5 The decision of the Speaker dated 6 April 2017 to refuse to allow the no confidence
motions to be decided by secret ballot is reviewed and set aside and declared
unconstitutional and invalid.
6 The Speaker is directed to make all necessary arrangements to ensure that the motion of
no confidence scheduled for 18 April 2017 is decided by secret ballot, including designating
a new date for the motion to be debated and voted on no later than 25 April 2017.
7 The costs of this application are to be paid by the Speaker, jointly and severally with any
other party opposing the relief sought.
[24] In Mazibuko this Court was seized with a dispute relating to a motion of no confidence in the
President. Some of the issues to be resolved were: (a) whether the Speaker of the National
Assembly had the power to schedule a motion of no confidence on his own authority; (b) whether
the Rules were inconsistent with the Constitution to the extent that they did not provide for motions

199 Council for the Advancement of the South African Constitution, the Unemployed Peoples’ Movement, the
Institute for Security Studies and the Shosholoza Progressive Party.
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of no confidence in the President, as envisaged in section 102(2); and (c) whether Parliament
had failed to fulfil a constitutional obligation in terms of section 167(4)(e) of the Constitution.200
[25] The application was brought in the form of a direct appeal from the High Court to this Court.
In addressing the issues, this Court had regard to whether the interests of justice require that
leave be granted and to the great significance of a motion of no confidence in our constitutional
democracy. It also took into account that when and how to vindicate the power to initiate,
debate and vote on a motion of no confidence under section 102 is an issue that deserves the
attention of this Court. The primary purpose of this motion, which is to ensure that the President
and the national Executive are held accountable, was also taken into account to undergird the
proposition that the matter would in all likelihood end up in this Court.201
[27] … We embrace and reiterate the observations relating to the importance of a motion of no
confidence in our constitutional democracy [and] its primary objective as an effective
consequence enforcement tool.
[28] A motion of no confidence in the Head of State and Head of the Executive is a very
important matter. Good governance and public interest could at times haemorrhage quite
profusely if that motion were to be left lingering on for a considerable period of time. It deserves
to be prioritised for attention within a reasonable time.202 The relative urgency of the guidance
needed by Parliament from this Court is also an important factor to take into account.

The nature and purpose of a motion of no confidence

[29] The proper approach is one guided by this Court’s jurisprudence on constitutional
interpretation. In Hyundai we said:
The Constitution is located in a history which involves a transition from a society based on
division, injustice and exclusion from the democratic process to one which respects the dignity
of all citizens, and includes all in the process of governance. The process of interpreting the
Constitution must recognise the context in which we find ourselves and the Constitution’s goal
of a society based on democratic values, social justice and fundamental human rights. This
spirit of transition and transformation characterises the constitutional enterprise as a whole.203
[30] In Matatiele, we also made the following observations in relation to the correct approach to
adopt in construing our Constitution:
Our Constitution embodies the basic and fundamental objectives of our constitutional
democracy. Like the German Constitution, it ‘has an inner unity, and the meaning of any one
part is linked to that of other provisions. Taken as a unit [our] Constitution reflects certain
overarching principles and fundamental decisions to which individual provisions are
subordinate.’ Individual provisions of the Constitution cannot therefore be considered and

200 Mazibuko v Sisulu at para 3

201 As above at paras 20-2.
202 As above at para 66.
203 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai

Motor Distributors (Pty) Ltd v Smit NO [2000] ZACC 12; 2001 (1) SA 545 (CC); (Hyundai) at para 21.
179
 construed in isolation. They must be construed in a manner that is compatible with those basic
and fundamental principles of our democracy. Constitutional provisions must be construed
purposively and in the light of the Constitution as a whole.204
[31] And this is the approach to be adopted in pursuit of the correct answer to the issues raised
in this matter. The Preamble to our Constitution is a characteristically terse but profound
recordal of where we come from, what aspirations we espouse and how we seek to realise
them. Our public representatives are thus required never to forget the role of this vision as both
the vehicle and directional points desperately needed for the successful navigation of the way
towards the fulfilment of their constitutional obligations. Context, purpose, our values as well as
the vision or spirit of transitioning from division, exclusion and neglect to a transformed, united
and inclusive nation, led by accountable and responsive public office-bearers, must always
guide us to the correct meaning of the provisions under consideration. Our entire constitutional
enterprise would be best served by an approach to the provisions of our Constitution that
recognises that they are inseparably interconnected. These provisions must thus be construed
purposively and consistently with the entire Constitution.
[32] 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. It is a mechanism at the disposal of the
National Assembly to resort to, whenever necessary, for the enhancement of the effectiveness
and efficiency of its constitutional obligation to hold the Executive accountable and oversee the
performance of its constitutional duties.
[33] 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 people. It is the people who put
them there, directly or indirectly, and they therefore, have to account for the way they serve them.
[34] A motion of no confidence exists to strengthen regular and less “fatal” accountability and
oversight mechanisms. To understand how a motion of no confidence in the President
enhances and fits into the broader accountability scheme, it is necessary to highlight some of
the constitutional accountability provisions that apply to the Executive.
[35] Section 92 of the Constitution demands accountability from the Executive in these terms:
Accountability and responsibilities
(1) The Deputy President and Ministers are responsible for the powers and functions of the
executive assigned to them by the President.
(2) Members of the Cabinet are accountable collectively and individually to Parliament for the
exercise of their powers and the performance of their functions.
(3) Members of the Cabinet must––

204 Matatiele Municipality v President of the Republic of South Africa (2) 2007 (6) SA 477 (CC) (Matatiele) at para 36.
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(a) act in accordance with the Constitution; and

(b) provide Parliament with full and regular reports concerning matters under their control.
And section 93(2) of the Constitution provides:
Deputy Ministers appointed in terms of subsection (1)(b) are accountable to Parliament for the
exercise of their powers and the performance of their functions.
[36] The President, Deputy President, Ministers and their Deputies are thus enjoined by the
supreme law of the land to be “accountable collectively and individually to Parliament for the
exercise of their powers and the performance of their functions”. Not only are they responsible
for the proper exercise of the powers and carrying out of the functions assigned to the Executive
but they are also required to act in line with the Constitution. Additionally, they are obliged to
“provide Parliament with full and regular reports concerning matters under their control”.
[37] In anticipation of a President and this constitutionally envisaged team’s possible
remissness in the execution of their constitutional mandate, provision was made to minimise or
address that possibility. Those who represent the people in Parliament have thus been given
the constitutional responsibility of ensuring that Members of the Executive honour their
obligations to the people. Parliament that elects the President and of which the Deputy
President, Ministers and their Deputies are Members,205 not only passes legislation but also
bears the added and crucial responsibility of “scrutinising and overseeing executive action”.206
[38] Members of Parliament have to ensure that the will or interests of the people find
expression through what the State and its organs do. This is so because Parliament “is elected to
represent the people and to ensure government by the people”.207 This it seeks to achieve by,
among other things, passing legislation to facilitate quality service delivery to the people,
appropriating budgets for discharging constitutional obligations and holding the Executive and
organs of State accountable for the execution of their constitutional responsibilities.
[39] Parliament’s scrutiny and oversight role blends well with the obligations imposed on the
Executive by section 92. It is provided for in section 55 of the Constitution:
Powers of National Assembly
...
(2) The National Assembly must provide for mechanisms––
(a) to ensure that all executive organs of state in the national sphere of government are
accountable to it; and
(b) to maintain oversight of––
(i) exercise of national executive authority, including implementation of legislation; and
(ii) any organ of state.

205 In terms of sections 91(3)(c) and 93(1)(b), respectively, the President may also appoint up to two Ministers and
up to two Deputy Ministers from outside the National Assembly.
206 Section 42(3) of the Constitution.
207 Section 42(3) of the Constitution.

181
[40] The National Assembly has the obligation to hold Members of the Executive accountable, put
effective mechanisms in place to achieve that objective and maintain oversight of their exercise of
executive authority. There are parliamentary oversight and accountability mechanisms that are
sufficiently notorious to be taken judicial notice of. Some of them are calling on Ministers to:
account to Portfolio Committees and ad hoc Committees; and avail themselves to respond to
parliamentary questions as well as other question and answer sessions during a National
Assembly sitting. It is also through the State of the Nation Address, Budget Speeches and
question and answer sessions that the President and the rest of the Executive are held to account.
[41] These accountability and oversight mechanisms, are the regular or normal ones. There
may come a time when these measures are not or appear not to be effective. That would be
when the President and his or her team have, in the eyes of the elected representatives of the
people to whom they are constitutionally obliged to account, disturbingly failed to fulfil their
obligations. In other words, that stage would be reached where their apparent under-
performance or disregard for their constitutional obligations is viewed, by elected public
representatives, as so concerning that serious or terminal consequences are thought to be most
appropriate. That takes the form of removal from office.
[42] The Constitution provides for two processes in terms of which the President may be
removed from office. First, impeachment, which applies where there is a serious violation of the
Constitution or the law, serious misconduct or an inability to perform the functions of the
office.208 Another related terminal consequence or supreme accountability tool, in-between
general elections, is a motion of no confidence for which the Constitution provides as follows:
102. Motions of no confidence
(1) If the National Assembly, by a vote supported by a majority of its members, passes a
motion of no confidence in the Cabinet excluding the President, the President must
reconstitute the Cabinet.
(2) If the National Assembly, by a vote supported by a majority of its members, passes a
motion of no confidence in the President, the President and the other members of the
Cabinet and any Deputy Ministers must resign.
[43] A motion of no confidence constitutes a threat of the ultimate sanction the National Assembly
can impose on the President and Cabinet should they fail or be perceived to have failed to carry
out their constitutional obligations. It is one of the most effective accountability or consequence-
enforcement tools designed to continuously remind the President and Cabinet of what could
happen should regular mechanisms prove or appear to be ineffective. This measure would
ordinarily be resorted to when the people’s representatives have, in a manner of speaking,
virtually given up on the President or Cabinet. It constitutes one of the severest political
consequences imaginable – a sword that hangs over the head of the President to force him to

208 Section 89 of the Constitution.

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always do the right thing. But, that threat will remain virtually inconsequential in the absence of
an effective operationalising mechanism to give it the fatal bite, whenever necessary.
[44] It was with this appreciation of the invaluable role of a motion of no confidence in mind and
the necessity for its efficacy that the following observations were made in Mazibuko:
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. 209
[45] A motion of no confidence is, in some respects, potentially more devastating than
impeachment. It does not necessarily require any serious wrongdoing, though this is implied. It
may be passed by an ordinary, as opposed to a two-thirds majority of Members of the National
Assembly. Unlike impeachment that targets only the President, a motion of no confidence does
not spare the Deputy President, Ministers and Deputy Ministers of adverse consequences. And
the Constitution does not say when or on what grounds it would be fitting to seek refuge in a
motion of no confidence.
[46] As to when and why, a point could conceivably be reached where serious fault lines in the
area of accountability, good governance and objective suitability for the highest office have
since become apparent. Those concerns might not necessarily rise to the level of grounds
required for impeachment. But, the lingering expectation of the President delivering on the
constitutional mandate entrusted to him or her might have become increasingly dim.
[47] In the final analysis, the mechanism of a motion of no confidence is all about ensuring that
our constitutional project is well managed; is not imperilled; the best interests of the nation enjoy
priority in whatever important step is taken; and our nation is governed only by those deserving
of governance responsibilities. To determine, through a motion of no confidence, the continued
suitability for office of those who govern, is a crucial consequence-management or good-
governance issue. This is so because the needs of the people must never be allowed to be
neglected without appropriate and most effective consequences. So, a motion of no confidence
is fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-
between the general elections, by allowing Members of Parliament as representatives of the
people to express and act firmly on their dissatisfaction with the Executive’s performance.
[48] When the stage is reached or a firm view is formed, by some Members of the National
Assembly, that the possibility of removing the President or Cabinet from office through a motion
of no confidence be explored, would it be constitutionally permissible for the Speaker, on behalf

209 Mazibuko at para 43.

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of the National Assembly, to prescribe a secret ballot as the voting procedure? On what bases
may this Court conclude that the Speaker does have the power to order voting by secret ballot?

Does the Speaker have the power to prescribe a secret ballot?

[49] The Speaker210 was asked by some Members of the Assembly to make a determination
that voting in the motion of no confidence in the President be conducted by secret ballot. She
holds the view that neither the Constitution nor any rule gives her that power. She cites
Tlouamma as a further impediment to the option of a secret ballot. We are thus called upon to
determine whether the Constitution and Rules of the National Assembly require, permit or
prohibit that voting in a motion of no confidence in the President be by secret ballot.
[50] Section 102(2) provides that the National Assembly is to take a decision in a motion of no
confidence through a vote. Neither the sections nor the rules relied on by the parties, to support
the contention that a secret ballot is required, provide expressly for any voting procedure in a
motion of no confidence.211 A reflection on some constitutional provisions that provide for voting
in line with the interpretative guidelines laid down by Hyundai and Matatiele is thus necessary.
[51] Section 19(3)(a) of the Constitution provides that “[e]very adult citizen has the right … to vote
in elections for any legislative body established in terms of the Constitution, and do so in
secret”. Our Constitution has chosen a secret ballot as the voting procedure for general elections.
[52] The President may, in terms of section 50(1) of the Constitution, dissolve the National
Assembly if it has through a majority vote of its Members adopted a resolution for its
dissolution. No provision is made for the voting procedure.
[53] Section 52 of the Constitution provides:
Speaker and Deputy Speaker
(1) At the first sitting after its election, or when necessary to fill a vacancy, the National
Assembly must elect a Speaker and a Deputy Speaker from among its members.
...
(3) The procedure set out in Part A of Schedule 3 applies to the election of the Speaker and
the Deputy Speaker.
(4) The National Assembly may remove the Speaker or Deputy Speaker from office by
resolution. A majority of the members of the Assembly must be present when the
resolution is adopted.
(5) In terms of its rules and orders, the National Assembly may elect from among its members
other presiding officers to assist the Speaker and the Deputy Speaker.
[54] This section is about the election of the Speaker and Deputy Speaker at the first sitting of
the Assembly and whenever the need arises to do so. Focusing on voting, which is central to
this application, it is required in three different instances. First, when the Speaker or Deputy is

210 The National Assembly has delegated its power to determine the appropriate procedure where express
provision has not been made: see rules 6 and 26 of the Rules of the National Assembly.
211 Sections 102, 89, 42(3), 55(2) and 57 of the Constitution; see also rules 6, 26, 102, 103, and 104 of the Rules of

the National Assembly.

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being elected. Second, implicitly when a resolution for the removal of the Speaker or Deputy
Speaker is to be adopted. Third, when other presiding officers are being elected.
[55] No procedure is spelt out for the removal process. Similarly, the election of other presiding
officers in terms of subsection 5 is simply required to take place in terms of the Rules and
Orders of the Assembly but the voting mechanism is not expressly provided for. Section 52(3)
does however prescribe the voting procedure set out in Part A of Schedule 3 for the election of
the Speaker and Deputy. Similarly, section 86 of the Constitution prescribes the voting procedure
in Part A of Schedule 3. This section provides for the election of the President as follows:
(1) At its first sitting after its election, and whenever necessary to fill a vacancy, the National
Assembly must elect a woman or a man from among its members to be the President.
(2) … The procedure set out in Part A of Schedule 3 applies to the election of the President.
[56] The relevant part of the Part A of Schedule 3 voting procedure reads:
Part A Election Procedures for Constitutional Office Bearers
Application
1. The procedure set out in this Schedule applies whenever—
(a) the National Assembly meets to elect the President, or the Speaker or Deputy
Speaker of the Assembly;
(b) the National Council of Provinces meets to elect its Chairperson or a Deputy
Chairperson; or
(c) a provincial legislature meets to elect the Premier of the province or the Speaker or
Deputy Speaker of the legislature.
...
Election procedure
6. If more than one candidate is nominated—
(a) a vote must be taken at the meeting by secret ballot;
(b) each member present, or if it is a meeting of the National Council of Provinces, each
province represented, at the meeting may cast one vote; and
(c) the person presiding must declare elected the candidate who receives a majority of
the votes.
The election of the President and other constitutional office-bearers requires an ordinary
majority of Members present and a secret ballot.
[57] Several important observations emerge from these sections that provide for voting. The
procedure to be followed for the election of the President and several constitutional office-
bearers has been specifically provided for. It is voting by secret ballot and whoever secures a
majority of votes is to be declared elected. As regards the removal from office either through an
impeachment212 or a motion of no confidence,213 the Constitution is silent on the procedure.

212Voting is also provided for in section 89 of the Constitution in these terms:

“Removal of President
(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members,
may remove the President from office only on the grounds of—
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
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[58] The Constitution could have provided for a vote by secret ballot or an open ballot. It did
neither. Why did the Constitution leave the procedure open? Section 57(1) provides the answer:
The National Assembly 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.
[59] To pass a motion of no confidence in the President requires a vote supported by a majority
of National Assembly Members. Absent an expression of choice by the Constitution, the
National Assembly is at large to exercise its section 57(1) powers to decide on the appropriate
voting procedure in terms of which to decide the motion. And the choice lies between an open
or secret ballot. The National Assembly therefore has the power to determine whether voting on
a motion of no confidence would be by open ballot or secret ballot. The purpose for leaving the
voting procedure open could only have been for the Assembly itself to determine, in terms of its
section 57 powers, what would best advance our constitutional vision or project.
[60] Both possibilities of an open or secret ballot are constitutionally permissible. Otherwise, if
Members always had to vote openly and in obedience to enforceable party instructions,
provision would not have been made for a secret ballot when the President, Speaker,
Chairperson of the National Council of Provinces and their Deputies are elected. 214 The
Constitution would have made it clear that voting would always be by open ballot.
[61] If the will of political parties were to always prevail, the Constitution would probably have
required political parties to determine which way they want to vote on issues and through their
Chief Whips signify support or opposition by submitting the list of Members who would be present
when voting takes place. But, because it is individual Members who really have to vote, provisions
are couched in the language that recognises the possibility of majorities supporting the removal
of the President and Speaker. Conceptually, those majorities could only be possible if Members
of the ruling party are at liberty to vote in a way that does not always have to be predetermined
by their parties. This assumes that the ruling party would be opposed to the removal of their own.
[62] Additionally, constitutions of comparable democracies prescribe a vote by secret ballot only
for general elections, election of the President, the equivalent of the Speaker and her counterpart
in the second House. As for the voting procedure for removal from office, no provision is made.215

(2) Anyone who has been removed from the office of President in terms of subsection (1)(a) or (b) may not
receive any benefits of that office, and may not serve in any public office.”
213 Section 102 of the Constitution.
214 Sections 86, 52 and 64 of the Constitution read with Part A of Schedule 3 to the Constitution.
215 For example, the Constitution of the Republic of Korea requires a secret ballot for general elections for the

National Assembly and the President explicitly in articles 41 and 67 respectively; however when it comes to
impeachment of the President, article 65 is silent on the voting method and only requires it to be “approved by
two thirds or more of the total members of the National Assembly”, while it is article 130 of Chapter XI of the
National Assembly Act of the Republic of Korea that indicates that “a secret vote shall be taken to determine
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[63] What these legislative bodies have, however, done is to provide for a secret ballot either in
legislation or their rules of procedure. They did so because, just as our Parliament has the
power to determine its procedures in terms of section 57, they have the power to decide
whether the removal process ought to be by an open or secret ballot. Attempts to find any
comparable constitutional democracy where a court of law has prescribed the removal voting
procedure for the legislature drew a blank. Understandably so, because considerations of
separation of powers demand an ever abiding consciousness of the constitutionally-sanctioned
division of labour among the arms and a refrain from impermissible intrusions.
[64] It bears emphasis that the absence of a prior determination of the voting procedure by our
Constitution for a motion of no confidence means that it neither prohibits nor prescribes an open
ballot or a secret ballot. The effect of this is to leave it open to the National Assembly, when the
time comes to vote on that motion, to decide on the appropriate voting procedure. This can only
reinforce the conclusion that the Assembly has the power to make that determination. It is for it
to decide on the voting procedure necessary for the efficiency and effectiveness of the
institution in holding the Executive accountable. In sum, how best and in terms of which voting
procedure to hold the President accountable in the particular instance is the responsibility
constitutionally-allocated to the National Assembly.
[65] The Assembly has made rules in terms of its section 57 powers. Those rules make
provision for the determination of the voting procedure for a motion of no confidence tabled at a
particular time. Rule 102 says that “[u]nless the Constitution provides otherwise, voting takes
place in accordance with Rules 103 or 104”. Rule 103 provides:
(1) At a sitting of the House held in a Chamber where an electronic voting system is in
operation, unless the presiding officer directs otherwise, questions are decided by the
utilisation of such system in accordance with a procedure predetermined by the Speaker
and directives as announced by the presiding officer.
(2) Members may vote only from the seats allocated to them individually in the Chamber.
(3) Members vote by pressing the ‘Yes’, ‘No’ or ‘Abstain’ button on the electronic consoles at
their seats when directed by the presiding officer to cast their votes.
(4) A member who is unable to cast his or her vote, must draw this to the attention of the
Chair and may in person or through a whip of his or her party inform the Secretary at the
Table of his or her vote.
(5) When all members have cast their votes, the presiding officer must immediately
announce the result of the division.
(6) Members’ names and votes must be printed in the Minutes of Proceedings.

whether a motion for impeachment is adopted”. Similarly in Singapore, article 22L(4) of the Constitution of the
Republic of Singapore, which deals with the impeachment of the President, only requires the motion to be
adopted by “not less than half of the total number of Members of Parliament”, but remains silent on the voting
method. In Kenya, articles 144 and 145 of the Constitution which deal with the removal of the President on
grounds of incapacity and by impeachment, both remain silent on the voting method. Further, in the German
Basic Law, article 61 which deals with impeachment remains silent on the voting method and only says that “[a]
decision to impeach requires a majority of two thirds of the members of the House of Representatives or of two
thirds of the votes of the Senate”. See also the voting system in the National Assembly of Zimbabwe, below.
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[66] And rule 104 reads:
(1) Where no electronic voting system is in operation, a manual voting system may be used
in accordance with a procedure predetermined by the Speaker and directives to be
announced by the presiding officer.
(2) When members’ votes have been counted, the presiding officer must immediately
announce the result of the division.
(3) If the manual voting procedure permits, members’ names and votes must be printed in
the Minutes of Proceedings.
[67] These rules provide for a voting system and procedure that allows for details of a Member
and how she voted to be known. So known that the Minutes of Proceedings would be able to
capture the names and the exact vote of each Member. But, read together, sub-rules (1) and (3)
of rule 104 empower the Speaker to predetermine a manual voting system that may not permit
a recordal or disclosure of the names and votes of Members. That is an indiscriminate manual
secret ballot procedure. Indiscriminate because it is not limited to the election of the President,
Speaker or Deputy Speaker. It is not incident specific and must thus apply just as well to any
incident of voting for which the Speaker may prescribe a secret ballot including the removal of
the President. The National Assembly has, through its Rules, in effect empowered the Speaker
to decide how a particular motion of no confidence in the President is to be conducted.
[68] In sum, rule 104(1) and (3) empowers the Speaker to have even a motion of no confidence
in the President voted on by secret ballot. But, when a secret ballot would be appropriate, is an
eventuality that has not been expressly provided for and which then falls on the Speaker to
determine. That is her judgement call to make, having due regard to what would be the best
procedure to ensure that Members exercise their oversight powers most effectively. That is
something she may “predetermine” as envisaged in rule 104(1).
[69] Our decision that the power to prescribe the voting procedure in a motion of no confidence
reposes in the Speaker, accords with the dictates of separation of powers. It affirms the
functional independence of Parliament to freely exercise its section 57 powers.

The exercise of the power to determine the procedure

[70] The proper exercise of the power to prescribe a voting procedure in a motion of no
confidence proceedings would partly depend on why the Constitution prescribes a secret ballot
for the general elections and a contested election of the President and the Speaker.
[71] Beginning with European electoral instruments, article 5 of its Convention on the Standards
of Democratic Elections, Electoral Rights and Freedoms in the Member States of the
Commonwealth of Independent States provides:

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The Parties hereto proceed from the assumption that observance of the principle of secret
balloting means exclusion of any control over voters’ expression of will, provision for equal
conditions for free choice.216
[72] In Botswana Democratic Party the Court of Appeal of the Republic of Botswana noted that
the secret ballot voting system in Parliament—
is rather an arrangement put in place by the National Assembly for the effective exercise of the
Members’ right to vote without outside influence or coercion which could render the right an
empty one.217
And this was also explained by the Supreme Court of Zimbabwe in these terms:
The legislature chose the secret ballot for its optimum benefits . … The prescription of a secret
ballot as the method for the election of the Speaker [by members of the legislature] is based on
the acceptance of the principle that it promotes and protects freedom of expression of choice of
a preferred candidate without undue influence, intimidation and fear of disapproval by others.218
[73] As in general elections where a secret ballot is deemed necessary to enhance the freeness
and fairness of the elections, so it is with the election of the President by the National
Assembly. This allows Members to exercise their vote freely and effectively, in accordance with
the conscience of each, without undue influence, intimidation or fear of disapproval by others.
[74] The frustration or disappointment of the losing presidential hopeful and his or her supporters
could conceivably have a wide range of prejudicial consequences for Members who are known
to have contributed to the loss. To allow Members of the National Assembly to vote with their
conscience and choose who they believe to be the best presidential material for our country,
without any fear of reprisals, a secret ballot has been identified as the best voting mechanism.
[75] Conversely, a Member of Parliament could be exposed to a range of reasonably
foreseeable prejudicial consequences when called upon to pronounce through a vote on the
President’s accountability or continued suitability for the highest office. But ofcourse that
potential risk would also depend on the motivation for the motion of no confidence. Is it on
grounds that impugn competence, faithfulness to the Republic or commitment to upholding
constitutional obligations or on some fairly innocuous or less divisive or less sensitive grounds?
[76] The appropriateness of a voting procedure for that motion is particularly important since our
electoral system is structured in such a way that it is, broadly speaking, a party but not a
Member of Parliament that gets voted into Parliament. A political party virtually determines who
goes to Parliament219 and who is no longer allowed to represent it in Parliament.220 Members’
fate or future in office depends largely on the party. The Deputy President, Ministers and Deputy

216 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of
the Commonwealth of Independent States, 7 October 2002.
217 Botswana Democratic Party v Umbrella for Democratic Change Case No CACGB-114-14 at para 76.
218 Moyo v Zvoma Case No SC 28/10, quoted with approval in Botswana Democratic Party id at para 55.
219 Section 27 of the Electoral Act 73 of 1998.
220 Section 47(3) of the Constitution. This is not to suggest that a political party may remove a Member at whim.

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Ministers who are also Members of Parliament, are presidential appointees. The ruling party has
a great influence on, or dictates, who gets appointed or elected as senior office-bearers in
Parliament. Almost invariably the President – although not a Member of Parliament – is the
leader of the ruling party.221 It would be quite surprising if the senior office bearers in Parliament
were not appointed or elected with a significant input by the President and other senior party
officials. There are therefore institutional and other risks that Members, particularly of any ruling
party, are likely to get exposed to when they openly question or challenge the suitability of their
leader(s) for the position of President. I say leaders advisedly because the logical trend has
been to give the highest positions in governance structures to most senior leaders.
[77] In the Certification case, this Court addressed the conflict that arises from some Members’
continued membership of the National Assembly, after their appointment to Cabinet:
An objection was taken to various provisions of the [New Text] that are said to violate
[Chapter] VI. This [Chapter] reads:
‘There shall be a separation of powers between the legislature, executive and judiciary, with
appropriate checks and balances to ensure accountability, responsiveness and openness.’
The principal objection is directed at the provisions of the [New Text] which provide for
members of executive government also to be members of legislatures at all three levels of
government. It was further submitted that this failure to effect full separation of powers
enhances the power of executive government (particularly in the case of the President and
provincial Premier), thereby undercutting the representative basis of the democratic order.
...
It was also contended that the requirements of accountability and responsiveness in [Chapter]
VI were breached. The argument was that legislators would have to obey the instructions of
the party leadership even if the party concerned had unequivocally abandoned its electoral
manifesto and directed its [Members of Parliament] to vote, speak and act against the policies
expressed in that manifesto; or if the party imposed the whip in relation to a policy which
legislators sincerely and reasonably believed to be wrong. The end result, it was submitted,
would amount to a subversion of the accountability and responsiveness of legislators to the
electorate. We do not agree. 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. In such a system an anti-defection clause is not inappropriate to ensure that
the will of the electorate is honoured. An individual member remains free to follow the dictates
of personal conscience. This is not inconsistent with democracy.222
[78] The most effective extra-parliamentary mechanism for holding elected representatives
accountable, is a general election. It is in this context that this Court said “it is parties that the
electorate vote for and parties which must be accountable to the electorate”. Also, that a party’s
unacceptable abandonment of its manifesto is likely to result in electoral defeat. A factor relevant
to the Speaker’s decision-making in relation to the democratically-permissible voting procedure is
that “an individual member remains free to follow the dictates of personal conscience”.

221 In fact, it was only for a very brief period since the dawn of our democracy that this was not the case.
222 Certification case at paras 106 and 186.
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[79] 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.223 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. The requirement that their names be submitted to the Electoral Commission before
the elections is crucial.224 The people vote for a particular party knowing in advance which
candidates are on that party’s list and whether they can trust them.
[80] When the risk that inheres in voting in defiance of the instructions of one’s party is
evaluated, it must be counter-balanced with the difficulty of being removed from the
Assembly. Openness is one of our foundational values.225 And the Assembly’s internal
arrangements, proceedings and procedures must have due regard to the need to uphold the
value of transparency in carrying out the business of the Assembly. 226 The electorate is at times
entitled to know how their representatives carry out even some of their most sensitive
obligations, such as passing a motion of no confidence. They are not always supposed to
operate under the cover of secrecy. Considerations of transparency and openness sometimes
demand a display of courage and the resoluteness to boldly advance the best interests of those
they represent no matter the consequences, including the risk of dismissal for non-compliance
with the party’s instructions. These factors must also be reflected upon by the Speaker when
considering whether voting is to be by secret or open ballot.
[81] Some consequences are adverse or injurious not so much to individuals, as they are to our
constitutional democracy. Crass dishonesty, in the form of bribe-taking or other illegitimate
methods of gaining undeserved majorities, must not be discounted from the Speaker’s decision-
making process. Anybody, including Members of Parliament or of the Judiciary anywhere in the
world, could potentially be “bought”. When that happens in a motion of no confidence, the
outcome could betray the people’s best interests. This possibility must not be lightly or naively
taken out of the equation as a necessarily far removed and negligible possibility when the

223 Section 48 of the Constitution read with item 4 of Schedule 2.

224 Section 57(A) of the Electoral Act.
225 Section 1(d) of the Constitution.
226 Section 57(1) of the Constitution.

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stakes are too high. For, when money or oiled hands determine the voting outcome, particularly
in a matter of such monumental importance, then no conscience or oath finds expression.
[82] The correct exercise of Parliament’s powers in relation to a motion of no confidence in the
President, must therefore have the effect of ensuring that the voting process is not a fear or
money-inspired sham but a genuine motion for the effective enforcement of
accountability. When that is so, the distant but real possibility of being removed from office for
good reason would serve the original and essential purpose of encouraging public office-
bearers to be accountable and fulfil their constitutional obligations.
[83] Each Member must, depending on the grounds and circumstances of the motion, be able to
do what would in reality advance our constitutional project of improving the lives of all citizens,
freeing their potential and generally ensuring accountability for the way things are done in their
name and purportedly for their benefit. The centrality of accountability, good governance and the
effectiveness of mechanisms created to effectuate this objective, must enjoy proper recognition
in the determination of the appropriate voting procedure for a particular motion of no confidence
in the President. The voting procedure is situation-specific. Some motions of no confidence might
require a secret ballot but others not, depending on a conspectus of circumstances that ought to
reasonably and legitimately dictate the appropriate procedure to follow in a particular situation.227
[84] What then is to be done to safeguard the responsibility of Members of Parliament to vote
according to their conscience when it is necessary to enforce accountability effectively and
properly, without undermining the need to let them toe the party line when it is undoubtedly
appropriate to do so? A way must be found to draw a line between allowing voting according to
Members’ true conscience and the important responsibilities or obligations Members have to
their parties, which would at times be in conflict.
[85] 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

227 This is the meaning flowing from a contextual and purposive interpretation envisaged in Hyundai and Matatiele.
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people of South Africa. The exercise of the power to determine the voting procedure must thus
always be geared at 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.
[86] More importantly, the power that vests in the Speaker to determine the voting procedure in
a motion of no confidence, belongs to the people and must thus not be exercised arbitrarily or
whimsically. Nor is it open-ended and unguided. It is exercisable subject to constraints. The
primary constraint being that it must be used for the purpose it was given to the Speaker –
facilitation of the effectiveness of Parliament’s accountability mechanisms. Other constraints
include the need to allow Members to honour their constitutional obligations, regard being had
to their sworn faithfulness to the Republic and irrevocable commitment to do what the
Constitution and the laws require of them, for the common good of all South Africans.
[87] The Speaker is chosen from amongst Members of the National Assembly.228 That gives rise
to the same 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.
[88] There must always be a proper and rational basis for whatever choice the Speaker makes
in the exercise of the constitutional power to determine the voting procedure. Due regard must
always be had to real possibilities of corruption as well as the prevailing circumstances and
whether they allow Members to exercise their vote in a manner that does not expose them to
illegitimate hardships. Whether the prevailing atmosphere is generally peaceful or toxified and
highly charged, is one of the important aspects of that decision-making process.

Conclusion
[89] In conclusion, when approached by the UDM to have the motion of no confidence in the
President voted on by secret ballot, the Speaker said that neither the Constitution nor the Rules
of the National Assembly allow her to authorise a vote by secret ballot. To this extent she was
mistaken. The only real constraint that stood in her way was the Tlouamma decision.
[90] Our interpretation of the relevant provisions of the Constitution and the rules makes it clear
that the Speaker does have the power to authorise a vote by a secret ballot in motion of no
confidence proceedings against the President, in appropriate circumstances. The exercise of

228 Section 52(1) of the Constitution.

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that power must be duly guided by the need to enable effective accountability, what is in the
best interests of the people and obedience to the Constitution.
[91] To the extent that Tlouamma might have been understood to have held that a secret ballot
procedure is not at all constitutionally permissible, that understanding is incorrect. The
Speaker’s decision was invalid and must be set aside.

Remedy
[92] This Court has been asked to direct the Speaker “to make all the necessary arrangements
to ensure that the motion of no confidence … is decided by secret ballot, including designating a
new date for the motion to be debated”. But no legal basis exists for that radical and separation
of powers-insensitive move. The Speaker has made it abundantly clear that she is not averse to
a motion of no confidence in the President being decided upon by a secret ballot. She only
lamented the perceived constitutional and regulatory reality that she lacked the power to
authorise voting by secret ballot. Meaning, now that it has been explained that she has the
power to do that which she is not averse to, she has the properly-guided latitude to prescribe
what she considers to be the appropriate voting procedure in the circumstances.
[93] It may be necessary to add that her counsel reiterated that the Speaker is not really opposed
to a secret ballot. The President’s counsel also said that the Constitution neither requires nor
prohibits but in reality permits a secret ballot. He went on to say a secret ballot does not
necessarily hold adverse consequences for the President. It would thus be most inappropriate
to order the Speaker to have the motion of no confidence in the President conducted by secret
ballot, as if she ever said that she would not do so even if she had the power to do so and
circumstances plainly cry out for it. To order a secret ballot would trench separation of powers.
[94] Whether the proceedings are to be by secret ballot is a power that rests firmly in the hands
of the Speaker, but exercisable subject to crucial factors that are appropriately seasoned with
considerations of rationality. This Court cannot assume that she will not act in line with the legal
position and conditionalities as now clarified by this Court. No legal or proper basis exists for that.

ORDER
1. The United Democratic Movement is granted direct access.
2. It is declared that the Speaker of the National Assembly has the constitutional power to
prescribe that voting in a motion of no confidence in the President of the Republic of South
Africa be conducted by secret ballot.
3. The Speaker’s decision of 6 April 2017 that she does not have the power to prescribe that voting
in the motion of no confidence in the President be conducted by secret ballot is set aside.
4. The United Democratic Movement’s request for a motion of no confidence in the President
to be decided by secret ballot is remitted to the Speaker for her to make a fresh decision.
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5. The Speaker and the President must pay the costs of the United Democratic Movement,
the Economic Freedom Fighters, the Inkatha Freedom Party and the Congress of the People.

Commentary:
Amandla awethu, mannda ndiashu, maatla ke a rona or matimba ya hina (power belongs to us)
and mayibuye iAfrika (restore Africa and its wealth) as stated in para 7 is the crux of this case.
The power that vests in the Speaker to determine the voting procedure in a motion of no
confidence, belongs to the people and must thus not be exercised arbitrarily. As such, a motion
of no confidence in the President, must have the effect of ensuring that the voting process is not
a fear or money-inspired sham but a genuine motion for the effective enforcement of
accountability. This is so because we put our faith in Parliament because Parliament is elected
to represent the people and to ensure government by the people under the Constitution. When
there is a breach of any constitutional obligation by a member of the executive, accountability-
enhancing instruments must be invoked, including a vote by the Members of Parliament in a
motion of no confidence brought against the President.

The crisp question in this case is whether the Constitution read with the Rules of the National
Assembly give the Speaker the power to prescribe voting by secret ballot in a motion of no
confidence in the President? The Applicant’s argument is that if the vote is not conducted by
secret ballot, it will be tainted by the perceived fear by some Members of Parliament of adverse
and career limiting consequences, instead of being the free will of Members, thus it is in the
public interest for it to be secret. Indeed, a secret ballot would be consistent with the need for
openness, accountability and responsiveness to the needs of the people.

Ultimately in terms of section 57 of the Constitution, the Court held that the Speaker has the
right to determine whether or not the vote will be by way of a secret ballot or not. This position is
supported by the separation of powers doctrine, because it would be irregular for the judiciary to
intrude into the domain of the powers conferred on Parliament because it is Parliament’s right
and duty to decide on the voting procedure, through the Speaker as the designated official. The
Rules of the National Assembly reinforce the view that the Speaker is empowered to decide
how a vote will be conducted. There must always be a proper and rational basis for whatever
choice the Speaker makes. She should thus be aware that a secret ballot protects freedom of
expression of choice of a preferred candidate without undue influence, intimidation and fear of
disapproval by others. Moreover, it must be remembered that central to the freedom “to follow
the dictates of personal conscience” is the oath of office. This is so because 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
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parties. Thus, the choice remains that of the Speaker alone to decide whether the vote in a
motion of no confidence in the President will be by secret ballot or not.

6.5 Democratic Alliance v Minister of International Relations and Cooperation & Others
[2017] ZAGPPHC (22 February 2017)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)
CASE NO: 83145/2016
In the matter between:
DEMOCRATIC ALLIANCE Applicant
and
MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION First Respondent
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent
SOUTH AFRICAN LITIGATION CENTRE Sixth Respondent
PROFESSORS JOHN DUGARD AND GUENAEL METTRAUX Seventh Respondent
AMNESTY INTERNATIONAL LIMITED Eighth Respondent
PEACE & JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth Respondent
HELEN SUZMAN FOUNDATION Tenth Respondent
COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN
CONSTITUTION Intervening Party

Heard: 5 and 6 December 2016

Delivered: 22 February 2017
Coram: Mojapelo DJP, Makgoka and Mothle JJ

JUDGMENT

[1] This case turns on the separation of powers between the national executive and parliament
in international relations and treaty-making. It calls for a proper interpretation of s 231 of the
Constitution of the Republic of South Africa, 1996 (the Constitution). The primary question is
whether the national executive’s power to conclude international treaties, also includes the
power to give notice of withdrawal from international treaties without parliamentary approval.
Related to that is an ancillary question whether it is constitutionally permissible for the national
executive to deliver a notice of withdrawal from an international treaty without first repealing the

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domestic law giving effect to such treaty. At the heart of the dispute is the withdrawal of South
Africa from the Rome Statute of the International Criminal Court (the ICC).
[2] The litigation history over the ICC has its genesis in the refusal by the South African
government to arrest and surrender to the ICC, Omar Hassan Ahmad al-Bashir (President al-
Bashir) the President of Sudan, when he visited the country in June 2015 for an African Union
(AU) summit. President al-Bashir stands accused of serious international crimes, and two warrants
have been issued by the pre-trials chamber of the ICC for his arrest. They all are for war crimes,
crimes against humanity and genocide, all related to events in the Darfur region of Sudan. The
warrants have been forwarded to member states, including South Africa, requesting them to
cooperate under the Rome Statute and cause President al-Bashir to be arrested and
surrendered to the ICC.
[3] Government’s failure in this regard led to an urgent application in this court by Southern
African Litigation Centre (SALC), in which it sought orders declaring the government’s failure to
be in breach of the Constitution, and to compel the government to cause President al-Bashir to
be arrested and surrendered to the ICC. Government’s stance was that President al-Bashir
enjoyed immunity in terms of international customary law. A Full Bench of this court eventually
granted an order declaring the government‘s failure to have President al-Bashir arrested and
surrendered to the ICC to be inconsistent with the Constitution and unlawful. 229 The appeal by
the government to the Supreme Court of Appeal was unsuccessful,230 after which an application
for leave to appeal was made to the Constitutional Court.231 That application, scheduled to be
heard by the Constitutional Court on 22 November 2016, has been withdrawn by government.

Background facts

[4] On 19 October 2016, the national executive took a decision to withdraw from the Rome
Statute. Pursuant thereto and on the same day, the Minister of International Relations signed a
notice of withdrawal to give effect to that decision and deposited it with the Secretary-General of
the United Nations. This triggered the process for South Africa‘s withdrawal. In terms of article
127(1) of the Rome Statute, the withdrawal of a state party from the Rome Statute takes effect
12 months after the depositing of a notice to that effect. Thus, South Africa would cease to be a
state party to the statute in October 2017. Attached to the explanatory statement is a lengthy
explanation in which the reasons for the withdrawal are set out. In part, the statement reads:

229 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & others [2015] 3 All SA
505 (GP); 2015 (9) BCLR 1108 (GP); 2015 (2) SA 1 (GP).
230 Minister of Justice and Constitutional Development & others v Southern Africa Litigation Centre [2016] 2 All SA

365 (SCA); 2016 (4) BCLR 487 (SCA); 2016 (3) SA 317 (SCA).
231 Minister of Justice and Constitutional Development v Southern Africa Litigation Centre & Others (CCT 75/16).

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 In 2015, South Africa found itself in the unenviable position where it was faced with
conflicting international law obligations which had to be interpreted within the realm of hard
diplomatic realities and overlapping mandates when South Africa hosted the 30th Ordinary
Session of the Permanent Representatives Committee, the 27th Ordinary Session of the
Executive Council and the 25th Ordinary Session of the Assembly of the African Union (“the
AU Summit”), from 7 to 15 June 2015. South Africa was faced with the conflicting obligation
to arrest President Al Bashir under the Rome Statute, the obligation to the AU to grant
immunity in terms of the Host Agreement, and the General Convention on the Privileges and
Immunities of the Organization of African Unity of 1965 as well as the obligation under
customary international law which recognises the immunity of sitting heads of state.
This Act and the Rome Statute of the International Criminal Court compel South Africa to
arrest persons who may enjoy diplomatic immunity under customary international law but
who are wanted by the International Criminal Court for genocide, crimes against humanity
and war crimes and to surrender such persons to the International Criminal Court. South
Africa has to do so, even under circumstances where we are actively involved in promoting
peace, stability and dialogue in those countries.
[5] On 20 and 21 October 2016 respectively, the Minister of Justice wrote identical letters to
both the Speaker of the National Assembly (the fourth respondent) and the Chairperson of the
National Council of Provinces (the fifth respondent) advising them of cabinet’s decision to
withdraw from the Rome Statute, and the reasons therefor. In those letters, the Minister also
stated his intention to table in parliament, a bill repealing the Implementation of the Rome of
Statute of the International Criminal Court Act 27 of 2002 (the Implementation Act) which is the
domestic law giving effect to the Rome Statute in South Africa.
[6] On 24 October 2016 the applicant launched an application for direct access to the Constitutional
Court seeking to challenge the executive’s decisions referred to above. It also launched a
substantively identical application in this court, in the alternative, in the event of the
Constitutional Court not granting it direct access. On 11 November 2016 the Constitutional Court
refused the application for direct access on the basis that it was not in the interest of justice to
hear the matter at this stage. As a result the applicant fell back on its application in this court. It
seeks orders declaring unconstitutional and invalid: the notice of withdrawal and the underlying
cabinet decision to withdraw from the Rome Statute and deliver the notice to the United Nations
Secretary-General, initiating the withdrawal. Consequently, the applicant seeks an order that the
first, second and third respondents be directed to revoke the notice of withdrawal and to take
reasonable steps to terminate the process of withdrawal under article 127(1) of the Rome Statute.

The parties
[7] The applicant, the Democratic Alliance (the DA) is a political party registered in terms of s 15
of the Electoral Commission Act 51 of 1996, and the largest minority party in parliament. It is
supported in the relief it seeks by four non-governmental civil rights organisations, namely: the
applicant to intervene, Council for the Advancement of the South African Constitution (CASAC);
the sixth respondent, Southern Africa Litigation Centre (SALC); the joint ninth respondent,

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Centre for Human Rights (CHR) and the tenth respondent, the Helen Suzman Foundation
(HSF) (the supporting respondents). The seventh and eighth respondents, Professor John
Dugard and Professor Guenael Mettraux, and Amnesty International Limited, have each filed a
notice to abide, and consequently take no part in these proceedings.
[8] The first respondent, the Minister of International Relations and Cooperation (the Minister of
International Relations) is the member of the national executive responsible for signing and
delivering the impugned notice. The second respondent, the Minister of Justice and Correctional
Services (the Minister of Justice) is the member of the national executive responsible for the
administration of the national legislation that domesticated the Rome Statute. The third
respondent, the President of the Republic of South Africa (the President) is the head of the
national executive, which, in terms of s 231(1) of the Constitution, is responsible for negotiating
and signing all international agreements. For the sake of convenience, we shall refer to these
respondents collectively as ‘government respondents’. Where the context dictates, we shall
refer to the individual government respondents as designated above. The government
respondents oppose the relief sought by the DA. The fourth and fifth respondents, respectively
the Speaker of the National Assembly and the Chairperson of the National Council of Provinces,
have filed notices to abide and are not part of these proceedings.

The Rome Statute: adoption, signature, ratification and domestication

[9] The Rome Statute was adopted and signed on 17 July 1998 by a majority of states attending
the Rome Conference, including South Africa. This paved the way for the establishment of the
ICC. South Africa ratified the Rome Statute on 27 November 2000. It was the obligation of
states parties, which signed and ratified the Rome Statute, to domesticate the provisions of the
statute into their national law to ensure that domestic law was compatible with the statute. South
Africa accordingly passed the Implementation Act on 16 August 2002. The Act’s preamble reads:
The Republic of South Africa is committed to bringing persons who commit such atrocities to
justice, either in a court of law of the Republic in terms of its domestic laws where possible,
pursuant to its international obligation to do so when the Republic became party to the Rome
Statute of the International Criminal Court, or in the event of the national prosecuting
authority of the Republic declining or being unable to do so, in line with the principle of
complementarity as contemplated in the Statute, in the International Criminal Court, created
by and functioning in terms of the said Statute.
[10] Schedule 1 of the Implementation Act creates a structure for the national prosecution of the
international crimes of genocide, war crimes, and crimes against humanity, which includes the
crime of apartheid. The overall purpose of the Implementation Act is to bring the perpetrators of
serious international crimes to justice, in domestic courts or in the ICC. The Implementation Act
also creates the domestic legal framework for South Africa’s cooperation with the ICC. Section

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3(a) of the Implementation Act provides for the creation of a framework to ensure that the Rome
Statute is effectively implemented in the country.

Preliminary issues

[11] There are four preliminary issues to be disposed of. They are: urgency and ripeness;
CASAC’s application to intervene; SALC and CHR respective applications for condonation; and
the DA’s joinder of the supporting respondents. They are considered in turn.

Urgency and ripeness

[12] The application was issued on 24 October 2016 on an urgent basis, set down for 22
November 2016. On 17 November 2016 the Deputy Judge President issued directions with
regard to time-frames for filing of further affidavits, CASAC’s intervention application and written
submissions. The application was thereafter allocated as a special motion to be heard by a Full
Bench of this division on 5 and 6 December 2016. That is how we came to be seized of the
matter. Counsel for government respondents did not seriously press for a finding that the matter
is not urgent. Instead, he argued that the application is not ripe for judicial intervention. For
these considerations, the debate as to the urgency of the matter became somewhat diminished,
and of secondary importance. It should therefore not detain us further. Suffice it to state that we
are satisfied that the matter is urgent in the sense that the notice period for withdrawal from the
Rome State has commenced and is running. The alleged unconstitutional and unlawful act has
been committed and will remain legally effective. Unless the matter is determined now, the
applicant would not obtain an effective remedy at any time later, if the application has merits.
What remains of the issue of urgency is linked to ripeness and will be dealt with next.
[13] The related issue – the ripeness of the application – was advanced on behalf of
government respondents. The contention was that the application was brought prematurely and
should be dismissed on the basis that it is not ripe for judicial intervention, because: there is
imminent consideration of the matter by parliament; there are on-going diplomatic and curial
engagement of the ICC; and the effective date of the notice of withdrawal is only in October
2017, and is capable of deferral; and the notice itself is susceptible to revocation before it takes
effect. Accordingly, so was the argument, unlawfulness has not yet manifested in a form which
cannot be corrected. It was also argued that the national executive, had, through the Minister of
Justice, given assurance that the notice of withdrawal will be withdrawn or its date of
effectiveness deferred, should parliament not approve the notice of withdrawal before the
termination takes effect in October 2017. It was also argued that judicial intervention where a
parliamentary process is underway, would infringe the doctrine of separation of powers.

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[14] In our view, the issues of ripeness and separation of powers cannot be considered in
isolation. They are directly linked to, and intertwined with, the constitutionality of delivering the
notice of withdrawal without prior parliamentary approval. As a result, whether the matter is ripe
depends on the constitutionality of the notice of withdrawal. If the notice of withdrawal is
unconstitutional, that is the end of the matter, as this court must declare it unlawful, as enjoined
by s 172 of the Constitution. Ngcobo J explained in Doctors For Life:232
[69] The basic position appears to be that, as a general matter, where the flaw in the law-
making process will result in the resulting law being invalid, courts take the view that the
appropriate time to intervene is after the completion of the legislative process. The
appropriate remedy is to have the resulting law declared invalid. However, there are
exceptions to this judicially developed rule or “settled practice”. Where immediate
intervention is called for in order to prevent the violation of the Constitution and the rule of
law, courts will intervene and grant immediate relief. But intervention will occur in exceptional
cases, such as where an aggrieved person cannot be afforded substantial relief once the
process is completed because the underlying conduct would have achieved its object.
[15] In the present case, we are not concerned with what parliament might or might not do in
future about the bill repealing the Implementation Act. The contention is that another arm of
government, the executive, has already breached the separation of powers, and thus acted
unconstitutionally, by deciding and giving notice of withdrawal in the manner it has. On that basis
alone, this court is entitled, and constitutionally enjoined, to enquire into the conduct of the
executive to determine whether it is constitutionally compliant.
[16] What is more, it is not permissible for government respondents to seek to oust the
jurisdiction of the court based on the contention that the notice of withdrawal is capable of being
withdrawn or deferred. As long as it has not been withdrawn or deferred, the matter is properly
before this court. The same applies to possible diplomatic resolution, which the government
argues it may achieve, before expiry of the 12 months period. The court cannot shirk its
responsibility just because the executive may find another resolution.

CASAC’s intervention application

[17] CASAC applied for leave to intervene as the second applicant. Rule 12 of the Uniform
Rules of Court provides:
Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action
may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a
plaintiff or defendant. The court may upon such application make such order, including any
order as to costs, and give such directions as to further procedure in the action as to it may
seem meet.
[18] In terms of its constitution, CASAC is a voluntary association and a juristic entity operating
as a non-governmental organisation, established specifically to advance the Constitution by

232 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
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participating in litigation and advocacy in and on behalf of the public interest, among others. It
has previously engaged in public interest and constitutional litigation. 233
[19] CASAC’s application to intervene is opposed by government respondents, primarily on the
basis of: the lateness of the application; CASAC’s supposed election not to intervene when it
proceeded only before the Constitutional Court for direct access; inconvenience in terms of
further overburdening the already voluminous papers in an urgent application.
[20] The test for the intervention of parties in constitutional matters, such as the present, was
stated as follows by the Constitutional Court in Independent Newspapers:234
[18] In Gory v Kolver NO and Others (Starke and Others Intervening) this court held that in a
case involving the validity of a statute an application to intervene would succeed only if the
applicant had a direct and substantial interest in the subject matter of the litigation, which in
that case was the validity or otherwise of the statute and if, in addition, it was in the interests
of justice for the application to be granted. On that occasion we explained that, whilst a direct
and substantial interest is a necessary condition for intervention as a party, it is not always
sufficient ground for granting leave to intervene. The ultimate test is whether, in a particular
case, it is in the interests of justice to join or be joined as a party to pending litigation.
[21] There is no doubt that CASAC has a direct and substantial interest in the subject matter of
this litigation. The issues raised in the application fall comfortably within CASAC's areas of
interest: the interpretation of the Constitution; separation of powers; international human rights;
and the rule of law. CASAC also has standing in terms of s 38(a) and (e) of the Constitution.235
[22] Regard should also be given to the fact that CASAC is not entirely an outsider in the current
litigation – it having filed an application for direct access on the same day as the DA in the
Constitutional Court. Apart from the intervention application it has not placed any new facts
before this court. The legal challenges it raises are broadly, similar to those raised by the DA.
Given the intervention by the Deputy Judge President referred to earlier, all the parties have
had adequate opportunity to file their papers. CASAC’s contention that there is no risk of
ambushing any party by raising a new issue or seeking new relief that the parties might not
have had a fair opportunity to consider and comment upon, is a sound one. On a consideration
of factors mentioned above, CASAC not only has a direct and substantial interest in the subject

233 See for example Justice Alliance of South Africa v President of the Republic of South Africa 2011 (5) SA 388
(CC); CASAC v President of the Republic of South Africa (CCT 83/13).
234 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the

Republic of South Africa 2008 (5) SA 31 (CC).

235 Section 38 provides:

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; and
(e) an association acting in the interest of its members.
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of the present application, but overall, it is in the interests of justice to grant leave to it to
intervene as the second applicant. Accordingly, such leave is granted.

SALC and CHR’s respective applications for condonation

[23] Both SALC and CHR applied for condonation for the late filing of their respective
responding affidavits. In terms of the notice of motion the respondents (including SALC and CHR)
were to file their answering affidavits by 8 November 2016. Their applications were opposed by
government respondents on the basis of prejudice. Government respondents’ prejudice is
supposedly as a consequence of the time limits for them to deliver their supplementary
answering affidavit in response to the responding affidavits filed by SALC and CHR.
[24] SALC served its affidavit on 10 November 2016, two days after the time-frame stipulated in
the notice of motion. Its explanation for the two-day delay is that it had mistakenly believed that
its affidavit was only required to be filed on 15 November 2016. Indeed, in its notice to abide
served on 28 October 2016, it is mentioned that its affidavit setting out its position would be filed
on 15 November 2016. CHR filed its responding affidavit on 15 November 2016, five court days
after the time period stipulated in the notice of motion. CHR’s explanation for the delay is that it
had awaited the outcome of the DA’s application for direct access to the Constitutional Court. It
says that the order of the Constitutional Court dismissing the DA’s application, made on 11
November 2016, only came to the attention of its attorneys on 14 November 2016.
[25] The explanations furnished by SALC and CHR are not entirely satisfactory. Government
respondents have correctly pointed out the paucity of information for the delays. Ordinarily, this
should lead to refusal of condonation. However, what weighs heavily in favour of granting
condonation is the nature of the constitutional issues implicated in the application, on which both
parties have advanced helpful submissions. The novelty and importance of the issues, as well as
the public interest evoked are all factors which gravitate towards granting condonation.
[26] Besides, the prejudice complained of by government respondents was rendered largely
moot by the intervention of the Deputy Judge President on 17 November 2016, when he issued
directions for the further conduct of the matter. As a result, the matter was set down two weeks
later than the date reflected in the notice of motion, and government respondents were given
the opportunity to file further affidavits in response to the supporting respondents’ responding
affidavits. Indeed, they responded in detail to the substance of the responding affidavits by
SALC and CHR. As a result, they have clearly not suffered any prejudice as they have been
afforded an opportunity to exercise their right of reply. It also seems common cause that the
responding affidavits by SALC and CHR are almost identical to those which they filed in the
application for direct access to the Constitutional Court. As such, government respondents had
been aware of their submissions well in advance of the delivery of their responding affidavits in
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the present application. Given these considerations, the inclination is to conclude that it is in the
interests of justice to grant SALC and CHR condonation for the late filing of their affidavits.
Have the supporting respondents been improperly joined in the application?

[27] Government respondents objected to the DA’s joining of the supporting respondents.
Initially, the DA stated that this had been done on the basis that they were the respondent
(SALC) and amici curiae (the rest of the supporting respondents) in the application for leave in
the Constitutional Court against the judgment of the Supreme Court of Appeal in the matter
involving President al-Bashir. Government respondents argued that it was wrong of the DA to
‘convert’ amici in another matter into parties before this court. Only this court, they contended,
can determine whether amici should be permitted in separate proceedings.
[28] The short answer to that complaint is this: It admits of no debate that all the supporting
respondents have an indubitable direct and material interest in the subject matter of this
application, given that SALC, HSF and CHR were involved in the President al-Bashir case.
SALC initiated the application in this court and was the respondent on appeal in the Supreme
Court of Appeal. HSF was admitted as an amicus in that appeal. CHR and four others applied
for admission as amici in that appeal. Although they were refused admission as amici in that
court, they were nevertheless admitted as such by the Constitutional Court in the application for
leave to appeal against the judgment of the Supreme Court of Appeal. As stated earlier, that
application was withdrawn. CHR and PJI are thus, in addition, cited as interested parties as a
result of their admission as amici in the withdrawn application.
[29] Thus, it can be assumed that had the DA not cited the supporting respondents, there would
have been applications by them to be admitted as amici curiae. Alternatively, they could have
brought similar and parallel applications. Thus, either way, this court would have grappled with the
participation of the supporting respondents. We therefore take a view the DA was prudent in citing
the supporting respondents. Therefore, respondents’ misjoinder argument has no merit.

The substantive application and the grounds therefor

[30] We now turn to the merits. The DA’s constitutional challenge is predicated on four grounds:

(a) prior parliamentary approval was required before the notice of withdrawal was delivered
to the United Nations;
(b) prior repeal of the Implementation Act was required before the notice of withdrawal was
delivered to the United Nations;
(c) the delivery of the notice of withdrawal without prior consultation with parliament was
procedurally irrational; and

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(d) the withdrawal from the Rome Statute breaches the state’s obligations in terms of s 7(2)
of the Constitution.

The issues

[31] CASAC and each of the supporting respondents supported the DA’s arguments on s 231
and on irrationality, although each approached the argument from different perspectives. From
the DA’s grounds of challenge, taken together with those of CASAC and the supporting
respondents, the following issues can be distilled and summarised for determination:
(a) whether prior parliamentary approval and the repeal of the Implementation Act were
required before a notice of withdrawal was given (the s 231 argument);
(b) whether a process of public participation in parliament should have preceded the lodging
of the notice of withdrawal;
(c) whether the withdrawal was procedurally rational;
(d) if parliamentary approval is required for the delivery of the notice of withdrawal, whether
such approval may be sought after the notice of withdrawal had been delivered;
(e) whether, if the process-based grounds succeed, the substantive grounds should nonetheless
be considered; If one issue is dispositive of the matter, should other issues be considered?
(f) whether the withdrawal was substantively rational;
(g) whether the state‘s obligations in terms of s 7(2) of the Constitution precludes the
withdrawal from the Rome Statute altogether;
(h) if the application succeeds on any grounds, the just and equitable remedy to be granted;
(i) Costs.

Prior parliamentary approval and repeal of the Implementation Act: s 231 of the Constitution
[32] The question here is whether the national executive is entitled to decide on the withdrawal
and execute its decision without the involvement of the legislature and thereafter seek
legislative approval, as it seeks to do. Secondly, whether it may execute its decision without the
repeal of the Implementation Act. In answering the above questions the point of departure must
inevitably be s 231 of the Constitution and the proper construction to be placed on it. The
section governs the manner in which international agreements are concluded, made binding on
South Africa, and domesticated into our national law. It reads:
(1) The negotiating and signing of international agreements is the responsibility of the
national executive.
(2) An international agreement binds the Republic only after it has been approved by
resolution in both the National Assembly and the National Council of Provinces, unless it is
an agreement referred to in subsection (3).
(3) An international agreement of a technical, administrative or executive nature, or an
agreement which does not require either ratification or accession, entered into by the national
executive, binds the Republic without approval by the National Assembly and the National

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 Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable
time.
(4) Any international agreement becomes law in the Republic when it is enacted into law by
national legislation; but a self-executing provision of an agreement that has been approved
by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of
Parliament.
(5) The Republic is bound by international agreements which were binding on the Republic
when this Constitution took effect.”
[33] The structure and effect of s 231 was lucidly explained by the majority of the Constitutional
Court in Glenister II:236
[181] In our view the main force of s 231(2) is directed at the Republic’s legal obligations
under international law, rather than transforming the rights and obligations contained in
international agreements into home-grown constitutional rights and obligations. Even though
the section provides that the agreement ‘binds the Republic’, and Parliament exercises the
Republic's legislative power, which it must do in accordance with and within the limits of the
Constitution, the provision must be read in conjunction with the other provisions within s 231.
Here, s 231(4) is of particular significance. It provides that an international agreement ‘becomes
law in the Republic when it is enacted into law by national legislation’. The fact that s 231(4)
expressly creates a path for the domestication of international agreements may be an
indication that s 231(2) cannot, without more, have the effect of giving binding internal
constitutional force to agreements merely because Parliament has approved them. It follows
that the incorporation of an international agreement creates ordinary domestic statutory
obligations.
[34] Ngcobo CJ, writing for the minority in the same case, summarised the scheme of s 231 as
follows:
[89] The constitutional scheme of s 231 is deeply rooted in the separation of powers, in
particular the checks and balances between the executive and the legislature. It
contemplates three legal steps that may be taken in relation to an international agreement,
with each step producing different legal consequences. First, it assigns to the national
executive the authority to negotiate and sign international agreements. But an international
agreement signed by the executive does not automatically bind the Republic unless it is an
agreement of a technical, administrative or executive nature. To produce that result, it
requires, second, the approval by resolution of Parliament.
[90] The approval of an agreement by Parliament does not, however, make it law in the
Republic unless it is a self-executing agreement that has been approved by Parliament,
which becomes law in the Republic upon such approval unless it is inconsistent with the
Constitution or an Act of Parliament. Otherwise, and third, an “international agreement
becomes law in the Republic when it is enacted into law by national legislation.
[35] From the exposition of s 231, there is no question that the power to conduct international
relations and conclude treaties has been constitutionally conferred upon the national executive
in terms of s 231(1). But that power is fettered by s 231(2) and (4), which enjoins the national
executive to engage parliament. The section therefore clearly delineates the powers between
the national executive and parliament. The only power the national executive has to bind the
country to international agreements without parliamentary involvement is s 231(3), with which we

236 Glenister v President of the Republic of South Africa and others 2011 (3) SA 347 (CC) (Glenister II).
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are not concerned here. Any other international agreement must be approved by parliament in
terms of s 231(2) to be binding on the country. Thus, once parliament approves the agreement,
internationally the country becomes bound by that agreement. Domestically, the process is
completed by parliament enacting the international agreement as national law in terms of s 231(4).

The contentions of the parties on the effect of s 231

[36] There is no debate about the scheme of s 231 as far as treaty-making is concerned. The
dispute is about the reverse process, when the country has to withdraw from an international
agreement. The DA, CASAC and the supporting respondents argued that since in terms of s
231(2) it is parliament which must approve an international agreement before it may bind South
Africa, it follows that it must be parliament which decides whether an international agreement
ceases to bind the country before the executive may deliver a notice of withdrawal.
[37] Unsurprisingly, government respondents took the opposite view. Their stance was that prior
parliamentary approval is not required for the notice of withdrawal to be given because s 231
contains no such provision. But, they contended, in any event, in this case, parliamentary
approval is being obtained. The over-arching argument advanced on behalf of government
respondents on prior parliamentary approval was that because there is no express provision in
s 231 for such, the reading-in is unwarranted. This argument is premised on four distinct grounds.
[38] First, that because it is the national executive’s primary role in international relations to
conclude treaties, and not that of parliament, the legal requirement (prior approval by
parliament) not being explicit in the Constitution, should not be lightly implied or read-in into the
Constitution. To construe parliament as the primary decision-maker when it comes to treaty-
making is contrary to s 231 as interpreted by the Constitutional Court. Counsel for government
respondents was at pains to emphasise the fact that treaty-making is the exclusive competency
in the heartland of the national executive. Therefore, counsel argued, the read-in function for
parliament which the DA seeks to read in is not what the Constitution contemplates.
[39] Second, and related to the first ground, was that since the original function of concluding
treaties is not that of parliament, but of the national executive, parliamentary approval is only
required in order for a concluded treaty to become binding. The conclusion of that treaty
remains the function of the national executive. The expression of this approval is done through
ratification, which in this context, means formal confirmation of consensus expressed by the
national executive. Undoing it is therefore also for the national executive to do, which does not
need parliamentary approval. Parliamentary approval relates to the binding effect of a
concluded treaty. Much as concluding a treaty is a core function of foreign relations within the
competence of the national executive, ‘un-concluding’ a treaty is also within the constitutional

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competence of the executive. It was argued further that since treaties are not concluded by
parliament but the executive, parliament cannot exit from a treaty, and a decision whether to
withdraw from a treaty is not that of parliament. Consequently, the argument went,
parliamentary approval is not required.
[40] Third, that in international law, a notice of withdrawal from an international agreement does
not require approval. In this regard, counsel pointed out that article 56 of the Vienna Convention
on the Law of Treaties, 1969, on which article 127 of the Rome Statute is based, contemplates
only a notice of withdrawal signed by the head of state, head of government or minister of
foreign affairs or other representative of the state concerned, with no parliamentary approval,
ratification or confirmation required. According to government respondents, the DA contends for
a construction of the Constitution which departs from international law, and this result is sought
to be achieved by reading-in a requirement which the Constitution does not contain.
Accordingly, so was the argument, the reading-in would be inconsistent with international law
and necessarily at odds with the constitutional requirement to interpret the Constitution and the
South African law to comply with international law.
[41] Fourth, that parliamentary approval is only required for international agreements. A withdrawal
being a unilateral act, does not qualify as an ‘international agreement’. Because s 231 specifically
mentions ‘an international agreement’ by necessary implication this excludes withdrawal, with the
application of the maxim expressio unius est exclusio alterius.237 The reading-in is inconsistent
with the legal nature of withdrawal and the express wording of the constitutional text itself.
[42] Finally, government respondents submitted that the question whether parliamentary
approval is required before notice of withdrawal is given, ‘does not arise’ on the facts of this
case because parliamentary approval is being obtained for the withdrawal. Accordingly, we
were urged not determine this question as it does not arise squarely for determination, as per
the injunction of the Constitutional Court in its jurisprudence on this issue.238

Analysis and discussion

[43] We have no difficulty in accepting, as a general proposition, that under our constitutional
scheme, it is the responsibility of the national executive to develop and implement policy. It is
also the responsibility of the executive to initiate legislation in order to implement policy. As
Ngcobo J explained in Kaunda:239

237 A maxim of interpretation meaning that the express mention of one thing is the exclusion of the other.
238 See S v Mhlungu 1995 (3) SA 867 (CC) para 59; Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC) paras 2-
5; Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) para 199; S v Bequinot 1997 (2) SA 887
(CC) paras 12-13; Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416; paras 41
and 71.
239 Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC).

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[172] The conduct of foreign relations is a matter which is within the domain of the executive. The
exercise of diplomatic protection has an impact on foreign relations. Comity compels states to respect
the sovereignty of one another; no state wants to interfere in the domestic affairs of another. The
exercise of diplomatic protection is therefore a sensitive area where both the timing and the manner in
which the intervention is made are crucial. The state must be left to assess foreign policy
considerations and it is a better judge of whether, when and how to intervene. It is therefore generally
accepted that this is a province of the executive, the state should generally be afforded a wide
discretion in deciding whether and in what manner to grant protection in each case and the judiciary
must generally keep away from this area. That is not to say the judiciary has no role in the matter.
[44] It is now axiomatic that the exercise of all public power, including conducting international
relations, must accord with the Constitution.240 As stated, South Africa has, in terms of s 231 of
the Constitution, both ratified the Rome Statute and domesticated it through the Implementation
Act. While the notice of withdrawal was signed and delivered in the conduct of international
relations and treaty-making as an executive act, it still remained an exercise in public power,
which must comply with the principle of legality and is subject to constitutional control.241
[45] Equally, it is the responsibility of parliament to make laws. When making laws parliament
will exercise its judgment as to the appropriate policy to address the situation. 242 The
formulation of policy to withdraw from the Rome Statute therefore no doubt falls exclusively
within the national executive‘s province. In the present case, the declaratory statement which
accompanied the notice of withdrawal, reflects the national executive‘s policy position.
[46] We consider these submissions through the prism of these constitutional guidelines.
Broadly, we do not agree with the general tenor of interpretation placed on s 231 by government
respondents. The argument is effectively this: in terms of s 231(1) and (2) of the Constitution the
national executive first negotiates and signs an international agreement. Parliament thereafter
approves the agreement to bind the country. The process of withdrawal should follow the same
route with the national executive first taking the decision, followed by parliamentary approval.
On this argument, the notice of withdrawal is an act in terms of s 231(1), and is the equivalent
of, and akin to, the conclusion and signature during the making of an international treaty, which
does not require prior parliament approval, but can be subsequently ratified.
[47] We disagree. A notice of withdrawal, on a proper construction of s 231, is the equivalent of
ratification, which requires prior parliamentary approval in terms of s 231(2). As correctly argued
by the DA, the act of signing a treaty and the act of delivering a notice of withdrawal are different
in their effect. The former has no direct legal consequences, while by contrast, the delivery of a
notice of withdrawal has concrete legal effects in international law, as it terminates treaty

240 Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South
Africa and Others 2000 (2) SA 674 (CC) para 20.
241 Kaunda and others v President of the Republic of South Africa 2005 (4) SA 235 (CC) paras 78- 80,178,191 and

228; Minister of Defence and Military Veterans v Motau and others 2014 (5) SA 69 (CC) para 69; National
Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) para 64.
242 Glenister II para 66.

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obligations, albeit on a deferred basis in the present case. This argument overlooks the explicit
wording of article 127(1) of the Rome Statute, which provides that a state may withdraw ‘by written
notification addressed to the Secretary-General of the United Nations’. The notice of withdrawal
deposited by the Minister of International Relations is the written notification envisaged. Although
the withdrawal does not take effect until a year, that notice constitutes, at international level, a
binding, unconditional and final decision of withdrawal from the Rome Statute.
[48] We further disagree with the government respondent’s contention that the participation of
parliament in the decision-making concerning the purported withdrawal from the ICC, will be
inconsistent with international law since the withdrawal letter has to be signed by a senior state
official. Article 127 of the Rome Statute, which the government respondents contend is based on
Article 56 of the Vienna Convention of the Law of Treaties, 1969, simply requires that the letter
of withdrawal be signed by the head of state, head of government, or minister of foreign affairs
or other representative of the state concerned. On a proper construction, this implies that the
letter must be signed by a senior state official who is duly authorized, to assure the Secretary-
General and the ICC that the letter communicated is authentic. The article does not seek to
dictate to the member states as to how and by whom the decision to withdraw must be taken.
[49] In summary, that provision has nothing to do with who has the authority to make a decision
to withdraw. It is concerned with the designated government official who signs and delivers the
notice to the United Nations, after a competent authority (either the national executive or the
legislature) had taken a decision to withdraw. The article therefore has no bearing on the
decision-making itself. Thus the need for the participation of parliament in the consideration of
the conclusion of treaties and by analogy, the question whether to withdraw from the Rome
Statute is part of our law and cannot be construed to be inconsistent with international law.
[50] It is indeed correct that in international law, a notice of withdrawal from an international
agreement does not require parliamentary approval.243 However the question of which between
the national executive and parliament has to decide on withdrawal must be settled according to
domestic law. It is a domestic issue in which international law does not and cannot prescribe.
[51] It should also be borne in mind that prior parliamentary approval is required before
instruments of ratification may be deposited with the United Nations. From that perspective,
there is a glaring difficulty in accepting that the reverse process of withdrawal should not be
subject to the same parliamentary process. The necessary inference, on a proper construction
of s 231, is that parliament retains the power to determine whether to remain bound to an
international treaty. This is necessary to give expression to the clear separation of powers

243 See s 127 of Rome Statute, and its predecessor, article 56 of the Vienna Convention on the Law of Treaties.
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between the national executive and the legislature embodied in the section. If it is parliament
which determines whether an international agreement binds the country, it is constitutionally
untenable that the national executive can unilaterally terminate such an agreement.
[52] As the Constitutional Court explained in Glenister II para 96, a resolution by parliament in
terms of s 231(2) to approve an international agreement is ‘a positive statement … to the
signatories of that agreement that parliament, subject to the provisions of the Constitution, will
act in accordance with the ratified agreement.’ Therefore, the approval of an international
agreement in terms of s 231(2) creates a social contract between the people of South Africa,
through their elected representatives in the legislature, and the national executive. That social
contract gives rise to the rights and obligations expressed in such international agreement. The
anomaly that the national executive can, without first seeking the approval of the people of
South Africa, terminate those rights and obligations, is self-evident and manifest.
[53] What is more, it is trite that where a constitutional or statutory provision confers a power to
do something, that provision necessarily confers the power to undo it as well. 244 In the context
of this case, the power to bind the country to the Rome Statute is expressly conferred on
parliament. It must therefore, perforce, be parliament which has the power to decide whether an
international agreement ceases to bind the country. The conclusion is therefore that, on a
textual construction of s 231(2), South Africa can withdraw from the Rome Statute only on
approval of parliament and after the repeal of the Implementation Act. This interpretation of the
section is the most constitutionally compliant, giving effect to the doctrine of separation of powers
so clearly delineated in s 231. The fact that s 231 does not expressly say that only parliament
has the power to decide the withdrawal from the Rome Statute, is no bar to this interpretation.

A different perspective

[54] Before we conclude on this topic, we look at the matter from another perspective. The
matter was argued largely on the basis that there is no provision in the Constitution or in any
other legislation for withdrawal from international treaties. This may be considered to be an
omission or lacuna. However, it appears that there is probably a good reason why the
Constitution provides for the power of the executive to negotiate and conclude international
agreements but is silent on the power to terminate them. The reason is this: As the executing
arm of the state, the national executive needs authority to act. That authority will flow from the
Constitution or from an act of parliament. The national executive can exercise only those
powers and perform those functions conferred upon it by the Constitution, or by law which is

244 Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) para 68.
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consistent with the Constitution.245 This is a basic requirement of the principle of legality and the
rule of law. The absence of a provision in the Constitution or any other legislation of a power for
the executive to terminate international agreements is therefore confirmation of the fact that such
power does not exist unless and until parliament legislates for it. It is not a lacuna or omission.
[55] With regard to the conclusion of international agreements, it is not for parliament to engage
in negotiating such agreements. It is for this reason that the Constitution gave that power to the
national executive. It is thus provided for in the scheme of section 231(1), for the executive to do
what is in effect exploratory work: negotiate and conclude an agreement but not bind the country.
As stated, the executive does not have the power to bind South Africa to such agreement. The
binding power comes only once parliament has approved the agreement on behalf of the people
of South Africa as their elected representative. It appears that it is a deliberate constitutional
scheme that the executive must ordinarily go to parliament (the representative of the people) to
get authority to do that which the executive does not already have authority to do.
[56] It would have been unwise if the Constitution had given power to the executive to terminate
international agreements, and thus terminate existing rights and obligations, without first
obtaining the authority of parliament. That would have conferred legislative powers on the
executive: a clear breach of the separation of powers and the rule of law. On this basis, too, the
national executive thus does not have and was never intended to have the power to terminate
existing international agreements without prior approval of parliament.

Summary of conclusions on s 231

[57] Since on the structure of s 231, the national executive requires prior parliamentary approval
to bind South Africa to an international agreement, there is no cogent reason why the withdrawal
from such agreement should be different. The national executive did not have the power to
deliver the notice of withdrawal without obtaining prior parliamentary approval. The inescapable
conclusion must therefore be that the notice of withdrawal requires the imprimatur of parliament
before it is delivered to the United Nations. Thus, the national executive’s decision to deliver the
notice of withdrawal without obtaining prior parliamentary approval violated s 231(2) of the
Constitution, and breached the separation of powers doctrine enshrined in that section.

Ex post facto approval?

[58] Government respondents’ seemingly alternative argument was that if parliamentary approval
is indeed required, the national executive has complied with that requirement since parliament
is still vested with such a decision, by virtue of the fact that the request to approve the notice of

245 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) at
paras 56-56; President of RSA v SARFU 2000 (1) SA 1 (CC) at para 148; Mansigh v General Council of the
Bar and Others 2014 (2) SA 26 (CC) at para 25.
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withdrawal and the repeal of the Implementation Act, are pending before parliament. Government
respondents therefore contended for subsequent ratification. This raises the question whether
retrospective approval by parliament would cure any defects in the process followed for withdrawal.
[59] Put differently, given that the national executive sought parliamentary approval for the notice
of withdrawal and repeal of the Implementation Act, has this question not become academic? It is
not, for two reasons – one constitutional and another, practical. Constitutionally, an important
constitutional principle of doctrine of separation of powers is implicated. Because the national
executive had purported to exercise power it constitutionally does not have, its conduct is invalid
and has no effect in law.246 Whatever parliament does about the subsequent request to it by the
national executive to approve the notice of withdrawal, would not cure its invalidity. As
Hoexter247 states ‘[a]n invalid act, being a nullity, cannot be ratified, ‘validated’ or amended.’
[60] Practically, although the notice of withdrawal does not take effect immediately, this does not
mean its delivery has no consequences until the effective date. The ICC and member states to
the Rome Statute must begin preparing for existence without South Africa. Elaborate transitional
arrangements must be put in place. This, in part, should explain why article 127(1) of the Rome
Statute contains a deferred effective date. As the notice of withdrawal has been delivered
prematurely, the effective date is earlier than would be, than had parliamentary approval been
sought prior to the delivery of that notice. In other words, had parliamentary approval been
sought first, and obtained, the process would have taken much longer for the notice of withdrawal
to be validly delivered. This obviously would have pushed the date of withdrawal much further
than October 2017. As explained more fully below, the process of law-making is inherently
elaborate and of necessity, takes long. To sum up on this point, and for the reasons stated
above, parliamentary approval after the notice of withdrawal had been delivered, has no effect.
Parliament is not empowered to cure the invalidity of the notice of withdrawal. However, it must
be emphasised that this conclusion does not affect the validity of the Minister of Justice’s tabling
of the repeal bill before parliament. That process is legitimately and properly before parliament.

Public participation

[61] The argument by the DA and the supporting respondents was that public participation had
been circumvented by the national executive‘s delivery of the notice of withdrawal without prior
parliamentary approval. In Doctors for Life, the Constitutional Court explained the importance of
public participation in law-making thus:

246 Kruger v President of the Republic of South Africa and others [2008] ZACC 17; 2009 (1) SA 417 (CC) para 52.
247 Administrative Law in South Africa 2nd ed (2012) at 547. See also S v Cebekulu 1963 (1) SA 482 (T) at 483;
Montshioa and Another v Motshegare 2001 (8) BCLR 833 (B) para 24.

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 [115] 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
disempowered in a country like ours where great disparities of wealth and influence exist.
[62] Public participation is a parliamentary process in legislation-making. Parliament has a broad
discretion in this regard, so long as it acts reasonably in terms of the prescripts of the Constitution.
In respect of the repeal bill, which is already before it, parliament will determine how best to
handle it, including whether it is necessary to hold public hearings or call for written submissions
from the public. The finding that parliamentary approval of the notice of withdrawal and the
repeal of the Implementation Act are required before a notice of withdrawal is delivered to the
United Nations, renders it unnecessary to consider in any detail, whether public participation
has been frustrated. This is because, properly construed, the complaint that public participation
has been hamstrung or circumvented by not seeking prior parliamentary approval, is premised
on this court finding that the national executive had validly delivered the notice of withdrawal.
[63] It has been found to have been invalidly delivered, as result of which it has to be revoked.
As stated, the parliamentary process to repeal the Implementation Act should take its course. None
of the parties has suggested that that process (to consider the repeal bill) is tainted. What has been
tainted is the request by the national executive to approve the notice of withdrawal. In other words,
one should separate the notice of withdrawal (which is invalid) from the repeal bill (against which
there is no complaint). In deference to parliament, no more should be said on this aspect.

Procedural irrationality

[64] The above conclusion leads to the question of procedural rationality of the notice of
withdrawal. The requirement for rationality is that government action must be rationally connected
to a legitimate government purpose.248 The principle of legality requires that both the process by
which the decision is made and the decision itself must be rational. In Democratic Alliance v
President of the Republic of South Africa249 the Constitutional Court explained that to determine
procedural irrationality is to look at the process as a whole and determine whether steps in the
process were rationally related to the end sought to be achieved. If not, whether the absence of a
connection between a particular step is so unrelated to the end as to taint the whole process

248 Pharmaceutical Manufacturers Association of SA and another: In re Ex Parte President of the Republic of South
Africa and others 2000 (2) SA 674 (CC) para 85.
249 Democratic Alliance v President of the Republic of South Africa and others 2013 (1) SA 248 (CC) para 37.

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with irrationality. In the present case, the procedural irrationality lies in the finding that the national
executive did not consult parliament, as obliged to, before delivering the notice of withdrawal.
[65] The primary reason advanced by the national executive for delivering the notice of withdrawal
is that the Rome Statute impedes its role in diplomatic and peace-keeping efforts on the
continent, as it is required to arrest, on its soil, sitting heads of state against whom the ICC has
issued warrants of arrest. By withdrawing from the Rome Statute, so was government’s argument,
government would be free to pursue its peacemaker role on the continent without an obligation to
arrest the indicted heads of state. It would be free to give immunity to such leaders. But this ignores
the effect of the Implementation Act. It is domestic legislation that creates peremptory obligations
that bind the State on their own terms, independent of its international obligations. In other words,
South Africa’s international law obligations are not dependent on the Rome Statute and vice versa.
[66] As a result, while internationally the ICC would give effect to the notice of withdrawal,
domestically, government would be obliged to arrest and surrender the indicted leaders, as long
as the Implementation Act is in force. It would not be permissible to grant the immunity it
envisages. This would result in a state of affairs where the state incurs obligations domestically
but not be party to the Rome Statute internationally. Government respondents argued that
nothing turns on this aspect, because of the fact that the notice of withdrawal does not take
effect until October 2017, and by that time, the Implementation Act would have been repealed.
[67] This was stated almost as a matter of fact. Indeed, the Minister of Justice stated that he
had requested parliament to urgently consider the repeal bill (ostensibly so that by October
2017, the Implementation Act would have been repealed.) In other words, the national executive
is ordering the legislature to finalise its process of considering the repeal bill before the effective
date of 18 October 2017. This in itself is impermissible, as it has the potential to undermine the
process of parliament. Section 57(1)(a) of the Constitution provides that the National Assembly
may determine and control its internal arrangements, proceedings and procedures. Section
70(1)(a) gives similar powers to the National Council of Provinces. Parliament is therefore the
master of its own processes, and the national executive is not entitled to dictate time frames to it
within which to consider any bill before it. As explained in Doctors for Life at para 38, parliament
has a very special role to play in our constitutional democracy – it is the principal legislative
organ of the state. With due regard to that role, it must be free to carry out its functions without
interference. Parliament should therefore not be dictated to by the national executive to rush
through the repeal bill in order to meet the national executive-created deadlines.
[68] The fate of the repeal bill is far from being clear, bearing in mind the constitutionally
entrenched, and elaborate legislative process set out in ss 73 to 82 of the Constitution. That
legislative process, broadly speaking, commences with the introduction of a bill in the National

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Assembly (which has already been done in this case); consideration and passing of the bill by the
National Assembly; consideration and passing of the bill by the National Council of Provinces;
and consideration and signing of the bill by the President. One must also bear in mind the
President’s role in law-making. In terms of s 79(1) of the Constitution, he or she may refer the bill
back to parliament for reconsideration if he or she has reservations about its constitutionality. If
still not satisfied after reconsideration by parliament, the President must, in terms of s 79(4)(b)
of the Constitution, refer the bill to the Constitutional Court for a decision on its constitutionality.
[69] After all, parliament may, after its due processes, decide against the notice of withdrawal and
the repeal bill. But even if parliament approves of the withdrawal, and enacts the repeal bill into law,
that might not be the end of the matter because a constitutional challenge against that legislation
can still be mounted on the basis that the repeal act itself is unconstitutional. That is not an
unreasonable forecast, due to the importance of the matter to the country, both nationally and
internationally, given the issues it raises. Such a challenge is already foreshadowed in this
application. In each of the above scenarios, either the withdrawal would be deferred (because the
repeal bill had not been passed by the effective date of the withdrawal) or be withdrawn (because
parliament voted against the repeal bill or it had judicially been declared unconstitutional.)
[70] Either way, there would be clumsy piece-meal processes, with undesirable and
embarrassing outcomes for South Africa. It would have given different and confusing signals
concerning its withdrawal from the Rome Statute. The United Nations, the ICC and Rome Statute
member states, as well as the international community, deserve a united, final and determinative
voice from South Africa on this aspect. That can only be achieved through our country’s normal
legislative processes. The question should be: what is so pressing for the national executive
about the withdrawal from the Rome Statute which cannot wait for our legislative processes
(and possibly judicial pronouncements) to take their course? Government respondents have not
provided any explanation for this seemingly urgent need to withdraw from the Rome Statute. All
these, in our view, point to one conclusion: the prematurity and procedural irrationality of the
lodging of the notice of withdrawal by the national executive without first consulting parliament.
This unexplained haste, in our view, itself constitutes procedural irrationality.

Summary of the findings on the process-based challenges

[71] We find, on a construction of s 231 of the Constitution, that prior parliamentary approval
and the repeal of the Implementation Act are required before the notice of withdrawal from the
Rome Statute is delivered by the national executive to the United Nations. Also, that the delivery
of the notice of withdrawal was procedurally irrational. These are process-based grounds, as
they relate to the procedure by which the notice of withdrawal was prepared and handled. The
rest of the grounds (substantive irrationality and s 7(2) obligations) concern the substantive
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merits of the withdrawal. In other words, whether it is at all constitutionally permissible for South
Africa to withdraw from the Rome Statute.

Should we consider the substantive grounds of challenge?

[72] In light of the above findings, is it necessary to consider the substantive grounds of review,
namely, substantive irrationality and the violation of the state‘s obligations under s 7(2) of the
Constitution? The DA’s argument was that the notice of withdrawal constitutes a retrogressive
measure in international relations which deprives South Africans of the protection afforded by
the ICC, and that it undermines the protection afforded to victims of international crimes in other
countries. This, the DA argued, is in breach of the state’s obligations under s 7(2) of the
Constitution which imposes obligations to respect, protect, promote and fulfill constitutional
rights. CASAC based its attack on substantive irregularity, advancing three reasons therefor.
First that the decision does not accord with section 7(2) of the Constitution. Second, that the
obligations under the Rome Statute that South Africa seeks to escape by withdrawing from it
are provided for in the Constitution, read with international customary and treaty law. Lastly, that
the decision serves no legitimate government purpose.
[73] SALC assailed the decision on several grounds, among others, that it was irrational and/or
taken in bad faith; and the effect of withdrawing was not properly considered, especially in
respect of ongoing investigations and the impact on victims. CHR aligned itself with these
grounds. It also argued that the withdrawal was irrational as there is no substitute for the ICC. In
addition, it submitted that the African Union Constitutive Act and the African Charter do not
contemplate a choice between membership of the Rome Statute and promoting peace and
security. It was submitted that those two goals are intertwined because, ultimately, peace and
security on the continent depended on there being real consequences for international crimes.
That, so was the argument, is the basis for the existence of the ICC which the African
Commission endorses. In brief, it was argued that the national executive’s position is at odds
with that adopted by the AU in relation to the ICC.
[74] During argument, counsel for the DA accepted the proposition that should we find in its
favour on the process-based arguments, it would not be necessary to consider the substantive
grounds. Counsel for SALC, CHR and HSF, on the other hand, pressed on with the argument
that we should also decide the substantive grounds referred to above, irrespective of any findings
on the procedural grounds. Counsel for CHR argued: given the position adopted by the national
executive it is likely that, should its decision be set aside for procedural reasons, it would simply
achieve the same goal (withdrawal from the Rome Statute) after following the proper procedure. If
this court does not decide the substantive grounds of review now, it is probable it will have to do

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so again in fresh legislation brought after the proper processes are followed. As the matter has
been fully argued now, it was appropriate to decide all the challenges at this stage. Counsel
based this argument on the dictum in S v Jordan and others250 where the Constitutional Court said:
[21] [W]here the constitutionality of a provision is challenged on a number of grounds and the
court upholds one such ground it is desirable that it should also express its opinion on the
other challenges. This is necessary in the event of this Court declining to confirm on the
ground upheld by the High Court. In the absence of the judgment of the High Court on the
other grounds, the proper course to follow may be to refer the matter back to the trial court so
that it could deal with the other challenges to the impugned provision. Thus failure by the High
Court to consider other challenges could result in unnecessary delay in the disposal of a case.
[75] In our view, the above dictum is not apposite to the present case. What distinguishes this
case from other cases of constitutional challenge, is mainly that here, there is a parliamentary
process pending to consider the repeal bill. If the national executive follows proper processes,
and parliament passes the repeal bill, no fault would be attributable to the national executive. If
the complaint be that the legislation repealing the Implementation Act is unconstitutional on any
ground, including all the substantive grounds advanced in this application, then such complaint
would not be against the executive, but parliament.
[76] The same goes for the DA’s argument that parliamentary processes ‘after-the-fact’ present
withdrawal as fait accompli. This proposition is based on the presumption that parliament will fail
to perform its constitutional functions rigorously. This is a wrong premise. Since there is a
parliamentary process pending, it must be assumed that parliament will comply with its
constitutional obligation in this regard, for example, to facilitate public participation, which is its
own process, and not of the executive. Any legislation which has potential impact on the bill of
rights passed without such participation could be susceptible to a constitutional challenge
against parliament. That challenge will not lie to this court, as the Constitutional Court has the
exclusive jurisdiction to determine a constitutional challenge based on alleged failure by the
legislature to facilitate public involvement in its legislative and other processes as envisaged in s
59(1)(a) of the Constitution.251 Therefore, as observed by Langa CJ in Glenister, it would be
institutionally inappropriate for a court to intervene in the process of law-making on the
assumption that parliament would not observe its constitutional obligations. 252 For these
reasons this court refrains from expressing any view on the substantive grounds.
Remedy

250 S v Jordan (Sexual Workers Education and Task Force as Amicus) 2002 (6) SA 642 (CC). In City of Cape Town
v Premier of the Western Cape 2008 (6) SA 345 (C) paras 167-8 it was held that similar considerations apply to
attacks on conduct.
251 Doctors for Life para 21; Glenister II para 23.
252 Glenister v President of the Republic of South Africa and others 2009 (1) SA 287 (CC) para 56.

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[78] Section 172(1) of the Constitution provides 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)(b) of the Constitution provides that
when deciding a constitutional matter within its power, a court may make any order that is just
and equitable, including an order limiting the retrospective effect of the declaration of invalidity
and an order suspending the declaration of invalidity for any period to allow the competent
authority to correct the defect. In the present case, that an order of suspension is not
appropriate, nor is an order limiting the retrospectivity of the effect of the declaration of
invalidity, given the inherent urgency of the matter. In any event, government respondents did
not make out a case for such an order, although counsel on their behalf faintly suggested that
we should consider suspension. As a result, the order of invalidity is with retrospective effect
and no order of suspension would be made.
[79] As a natural and logical outcome of the case and to ensure that the applicant is granted
effective relief following a finding of constitutional invalidity, as directed by the Constitutional
Court in Fose v Minister of Safety and Security253 consideration should be given to the proper
order to make under the circumstances. Having found that the notice of withdrawal is invalid for
the reasons discussed in this judgment, a declaratory order to that effect must be made. But, to
constitute an effective remedy, that declaration should be accompanied by an order directing
government respondents to revoke the notice of withdrawal.
[80] The DA has also sought that government respondents be ordered ‘to take all reasonable
steps to terminate the process of withdrawal.’ Such an order would be too widely stated, and is
likely to result in unnecessary interpretational issues. For example, the pending parliamentary
process to consider the repeal bill is ‘a process of withdrawal’. The order sought by the DA
would have the effect of terminating such process. At the risk of repetition, there has not been a
challenge to the Minister of Justice’s referral of the repeal bill to parliament, and that process is
not affected by the invalid delivery of the notice of withdrawal to the United Nations.
[81] Given that this court has refrained from expressing a view on the substantive policy
decision by the national executive to withdraw from the Rome Statute, it follows that it would be
inappropriate to declare that decision unconstitutional as a stand-alone decision. There is
nothing patently unconstitutional, at least at this stage, about the national executive’s policy
decision to withdraw from the Rome Statute, because it is within its powers and competence to
make such a decision. What is unconstitutional and invalid, is the implementation of that
decision (the delivery of the notice of withdrawal) without prior parliamentary approval. As a

253 Fose v Minister of Safety and Security 1997 (3) 786 (CC) para 69 and Gory v Kolver NO and Others (Starke and
Others Intervening) 2007 (4) SA 97 (CC) para 40.
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result, a declaration of invalidity of the notice of withdrawal, coupled with an order for the
withdrawal of such notice, should suffice as an effective, just and equitable remedy.
Costs
[82] The general principles with regard to costs in constitutional litigation were laid down by the
Constitutional Court in Affordable Medicines254 and Biowatch.255 Relevant to the present case is
that in constitutional litigation between a private party and the state, if the private party is
successful, it should have its costs paid by the state, while if unsuccessful each party should
pay its own costs. The DA has been successful. It is entitled to its costs from government
respondents. However, costs of three counsel are not warranted. Costs of two should suffice.
[83] With regard to CASAC, we are of the view that it is not entitled to costs. It waited until late
to file its application for intervention. Unlike the DA, it elected to file an application for direct
access in the Constitutional Court only, and not in this court. When that application was
dismissed, it found itself not being party to this application, resulting in an application for
intervention on an urgent basis. With regard to the supporting respondents – SALC, CHR and
HSF – they are ordinarily, as respondents, not entitled to costs from other respondents (in this
regard government respondents.) Therefore, no order of costs as between the supporting
respondents and government respondents should be made.

ORDER

Mojapelo DJP, Makgoka and Mothle JJ (sitting as a Full Bench and court of first instance):

1. The notice of withdrawal from the Rome Statute of the International Criminal Court, signed by
the first respondent, the Minister of International Relations and Cooperation on 19 October
2016, without prior parliamentary approval, is unconstitutional and invalid;
2. The cabinet decision to deliver the notice of withdrawal to the United Nations Secretary-
General without prior parliamentary approval, is unconstitutional and invalid;
3. The first, second and third respondents – the Minister of International Relations and
Cooperation, the Minister of Justice and Correctional Services and the President of the
Republic of South Africa, are ordered to forthwith revoke the notice of withdrawal referred in
paragraph 1 above;
4. The first, second and third respondents are ordered to pay the applicant‘s costs, including
costs consequent upon employment of two counsel;
5. There is no costs order as between the intervening applicant, the first, second, third, sixth,
ninth and tenth respondents.

254 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC).
255 Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC).
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_____________________
PM Mojapelo
Deputy Judge President of the High Court, Gauteng Division

____________________
TM Makgoka
Judge of the High Court, Gauteng Division

____________________
SP Mothle
Judge of the High Court, Gauteng Division

Commentary:
On 19 October 2016, South Africa deposited a notice of withdrawal from the Rome Statute with
the Secretary-General of the United Nations. This is notwithstanding the fact that South Africa
had signed the Rome Statute on 17 July 1998 and ratified it on 27 September 2000. 256 Shortly
thereafter, in July 2002, national legislation, appropriately named the ‘Implementation of the
Rome Statute of the International Criminal Court Act 27 of 2002’, (Implementation Act), was
promulgated, eradicating any ambiguity about South Africa’s intention to comply with the Rome
Statute (and therefore, the rule of law and the principle of legality). It is pertinent at this point to
make reference to the expression by Wendy Brown that:
Sovereignty is a sign of the rule of law and, at the same time, supervenes the law. Sovereignty is both
the source of law and above the law. It is all law and no law. Its every utterance is law, and it is lawless.

Unsurprisingly, the Democratic Alliance and other interested parties immediately challenged the
propriety of the government’s conduct. In finding the government’s conduct to indeed be invalid
and unconstitutional, the Court did precisely what it was supposed to do. The judiciary is not
supposed to subvert the powers and functions of either the executive or the legislature: all that it
is required to do is to declare any conduct or any law invalid on account of its inconsistency with
the Constitution, unless the circumstances justify intervention.

The Court held that procedurally, the decision by the national executive to deliver the notice of
withdrawal of South Africa from the Rome Statute of the ICC without prior parliamentary approval
is unconstitutional and invalid. The decision is also unconstitutional since it was not preceded by
the repeal of the Implementation Act. The Court declined the invitation to pronounce on the
substantive merits of South Africa’s withdrawal from the Rome Statute of the ICC because that
decision is policy-laden, and one residing in the heartland of the national executive in the
exercise of foreign policy, international relations and treaty-making, subject to the Constitution.

256 L Stone ‘Implementation of the Rome Statute in South Africa’ in Murungu C and Biegon J (eds) Prosecuting
International Crimes in Africa (2011) 306.
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Accordingly, the message being conveyed here is that the government should be held to
account (both internationally and domestically) if there is incongruence between the
international and domestic commitments that have been voluntarily entered into by way of
ratification and implementation of treaties, specifically if it is conduct of a recalcitrant
government seemingly giving preference to political considerations over law. 257

6.6 Democratic Alliance v President of the Republic of SA; In re: Democratic Alliance v
President of the Republic of SA & Others 2017 (4) SA 253 (GP) (9 May 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG PROVINCIAL DIVISION, PRETORIA

In the matter between:

Democratic Alliance Applicant

and
President of the Republic of South Africa Respondent

In re the application between:

Democratic Alliance Applicant
and
President of the Republic of South Africa First Respondent
Pravin Jamnadas Gordhan Second Respondent
Mcebisi Hubert Jonas Third Respondent
Malusi Nkanyezi Gigaba Fourth Respondent
Sifiso Norbert Buthelezi Fifth Respondent

JUDGMENT
Introduction
[1] On 4 May 2017 sitting in the Urgent Court I handed down an order … in the following terms:
1. The matter is heard as one of urgency in terms of Rule 6(12) of the Uniform Rules of
Court, and the forms and service provided for in the Rules are dispensed with.
2. The first respondent is to dispatch to the applicant's attorneys within five calendar days of
the date of this order:
2.1 the record of all documents and electronic records (including correspondence,
contracts, memoranda, advices, recommendations, evaluations and reports) that
relate to the making of the decisions which are sought to be reviewed and set aside;

257 M du Plessis & G Mettraux ‘South Africa’s failed withdrawal from the Rome Statute: Politics, Law and Judicial
Accountability’ Journal of International Criminal Justice (2017) 10.
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2.2 the reasons for the decisions which are sought to be reviewed and set aside.
3. The respondent is to pay the costs of this application which costs are to include those
occasioned by the employment of two counsel.
Backgrounds facts
[3] Soon after the stroke of midnight, while most residents of the country had retired for the
night, the respondent (the President) announced to the populace what the applicant calls radical
changes to the National Executive (the Cabinet). The announcement was in the following terms:
I have decided to make changes to the National Executive in order to improve efficiency and
effectiveness.
The changes bring some younger MPs and women into the National Executive in order to
benefit from their energy, experience and expertise.
I have directed the new Ministers and Deputy Ministers to work tirelessly with their colleagues
to bring about radical socio-economic transformation and to ensure that the promise of a better
life for the poor and the working class becomes a reality.
The new members are the following:
Ministers
1. Minister of Energy, Ms Mmamoloko "Nkensani" Kubayi
2. Minister of Transport, Mr Joe Maswanganyi
3. Minister of Finance, Mr Malusi Gigaba
4. Minister of Police, Mr Fikile Mbalula
5. Minister of Public Works, Mr Nathi Nhleko
6. Minister of Sports and Recreation, Mr Thembelani Nxesi
7. Minister of Tourism, Ms Tokozile Xasa
8. Minister of Public Service and Administration, Ms Faith Muthambi
9. Minister of Home Affairs, Prof Hlengiwe Mkhize
10. Minister of Communications, Ms Ayanda Dlodlo
Deputy Ministers
1. Deputy Minister of Public Service and Administration, Ms Dipuo Letsatsi-Duba
2. Deputy Minister of Finance, Mr Sifiso Buthelezi
3. Deputy Minister of Public Enterprises, Mr Ben Martins
4. Deputy Minister of Arts and Culture, Ms Maggie Sotyu
5. Deputy Minister of Trade and Industry, Mr Gratitude Magwanishe
6. Deputy Minister of Communications, Ms Thandi Mahambehlala
7. Deputy Minister of Tourism, Ms Elizabeth Thabethe
8. Deputy Minister of Police, Mr Bongani Mkongi
9. Deputy Minister of Telecommunications and Postal Services, Ms Stella Ndabeni-Abrahams
10. Deputy Minister of Small Business Development, Ms Nomathemba November
I wish to extend my gratitude to the outgoing Ministers and Deputy Ministers for their service to the
country. I also wish the new Ministers and Deputy Ministers the best in their new responsibilities.
[5] The announcement caused a great deal of consternation for a significant proportion of the
populace. It is no exaggeration to say that it was received with shock, alarm and dismay by
many. One reason for this is that it came on the heels of an extensive public complaint that
incessant malversation had embedded itself in our public life and that the country was mired in
the quicksand of corruption. The Minister of Finance and the Deputy Minister of Finance perform
important functions that, amongst others, involve the control of the public purse. It is these
223
dismissal decisions (the decisions) that have prompted the applicant, a registered political party,
to approach this Court on an urgent basis to essentially review the decisions.
The decisions
[17] The power to take the decisions is vested in the President by s 91(2) of the Constitution of
the Republic of South Africa, 1996 (the Constitution). This power, like all other power conferred
upon the President whether by the Constitution or any statute must be read with s 83 of the
Constitution, which reads:
The President –
(a) is the Head of State and head of the national executive;
(b) must uphold, defend and respect the Constitution as the supreme law of the Republic; and
(c) promotes the unity of the nation and that which will advance the Republic.
[18] The executive power to appoint and dismiss Ministers and Deputy Ministers is wide-ranging.
But it is not as unfettered as its predecessor the royal prerogative. The royal prerogative is a
relic of an age past. The executive power conferred upon the office of the President by s 91(1)
of the Constitution is circumscribed by the bounds of rationality and by s 83(b) and (c) of the
Constitution. The President accepts at the very least that the exercise of the power has to meet
the test of rationality. In an affidavit deposed to by the President in a matter before the
Constitutional Court which is still to be considered by that Court the following is averred:
It stands therefore to reason that the Constitutional power to appoint and dismiss Ministers is
that of the President, which power he or she exercises as head of the Cabinet. I am advised in
this regard there are no constitutional constraints on the President on how that power is to be
exercised or the process by which the power is to be exercised, as long as the exercise of
such power is rational.
[19] The President's concession that the present executive decisions have to be rational and
therefore subject to judicial scrutiny is well made. It is now settled law that these decisions must
comply with the "doctrine of legality."258 The doctrine is fundamental to our constitutional order.
Should an executive decision not comply with this doctrine it would be unlawful. Thus, if it is to
be lawful it must not be irrational or arbitrary.259
[35] There is not a soupçon of evidence concerning the record from the President. The
President has elected to remain completely quiescent on this aspect. The applicant demands
that "all documents and electronic records (including correspondence, contracts, memoranda,
advices, recommendations, evaluations and reports) that relate to the making of the decisions"
be provided. The President has not raised any issue about their existence or non-existence. The
applicant has raised the issue of the existence of a so-called "Intelligence Report' in its founding
papers in the main application. It has repeated its claim on that issue in this application. The

258 Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at 4; Minister of
Military Veterans v Motau 2014 (5) SA 69 (CC) at 69.
259 Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA) at 21.

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President has not dealt with the existence or non-existence of this report. In the same vein, the
President has not indicated what documents or electronic records exist and which of those he
objects to disclosing on the ground that their disclosure would be unlawful for one reason or
another. In these circumstances this Court has no choice but to issue an order that calls for a
record as canvassed in paragraph 2.2 of the notice of motion in the main application.260

[36] The President has also not furnished the reasons for the decisions as required by sub-rule
53(1)(b). In terms of this sub-rule the President is to dispatch to the registrar the record together
with the reasons for the decisions. The President has yet to do so. During oral submissions it
was contended on the President's behalf that reasons have been furnished to the applicant in
the letter of the state attorney to the applicant's attorney dated 21 April, which letter was written
after this interlocutory application was filed and served. Also, the letter was filed on the same
date as the answering affidavit. In the letter the attorney acting for the President states:
As will be evidenced in the answering affidavit of the President, in his response to your
application to compel the delivery of the records, the decision to reshuffle the cabinet as he did
was informed by his political judgment that the reshuffle will best deliver on the mandate the
African National Congress received from the majority of the electorate in the general elections.

____________________
VALLY J
Commentary:

Even though the Constitution grants the exclusive right to the President to appoint and dismiss
members of his Cabinet in a reshuffle, the rule of law dictates that even the President must
comply with the Constitution and that the government and all those in power must have
authority provided by law for everything they do. Since South Africa’s rule of law is to be
understood in its broadest sense, it means that procedurally, the President may not do whatever
he wants, but must at all times ensure that he remains “accountable, responsive and open” (as
per s 1(d) of the Constitution). Moreover, s 83(2) of the Constitution specifically states that the
President must “uphold, defend and respect the Constitution”. To be sure, the powers vested in
the President enable him to act in order to fulfil his constitutional responsibilities, which are
intertwined with the duties to refrain from acting in a way that may undermine the state itself and
the rule of law. The Cabinet reshuffle of 31 March 2017 has seemingly undermined the state
because the country’s economy has been downgraded to “junk status” which has serious
implications for the proper and effective running of the country. The case of Certification of the
Constitution of the Republic of South Africa at para 116 is authority for the view that the
President’s conduct is reviewable if it in any way constitutes a violation of the Constitutional

260 See para 2.2 of the Order quoted in [1] above.

225
provisions. Thus, although Cabinet members are political appointees who know that they can be
hired and fired at the will of the President (see the case of Masethla v President of the Republic
of South Africa at para 228), inherent in the rule of law is the principle of legality. The essence of
the principle of legality is rationality. Therefore, there must be a rational connection between the
decision made by the President and the information relied upon which prompted the President
to make that decision (see para 19 of the case). In other words, the decision must not be arbitrary.

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

Importantly, the President is obliged to exercise some of his functions “together with the other
members of the Cabinet” in terms of section 85(2) of the Constitution, especially since he should
be sensitive to the general public who voted for the political party that won the elections and
who voted him into power. There does not appear to have been any constructive discussion
with the members of Cabinet concerning the Cabinet reshuffle. Instead, the President seemingly
made a unilateral decision and was publicly criticised for it by some members of Cabinet.

In addition, the exercise of the President’s powers may not infringe any provision of the Bill of
Rights. Since the downgrading of the economy to “junk status” has negatively affected the
property rights of persons who have invested money, those persons’ property rights have been
infringed. As such, it can be argued that the President’s decision has infringed the rule of law
and should be reviewed with a possible consequence that the President’s decision be set aside
as invalid and unconstitutional. However, at this point it is necessary to note that in light of the
separation of powers doctrine, the judiciary has not overstepped the boundaries of its powers by
declaring that the President has acted unconstitutionally; all it has done is made an order that
the record and the reasons must be made available so that the related decision as to the
constitutionality of the President’s conduct is able to be made.
6.7 Corruption Watch NPC & Others v President of the Republic of South Africa; Nxasana v
Corruption Watch NPC 2018 (10) BCLR 1179 (CC) (13 August 2018)

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 333/17 and CCT 13/18

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Case CCT 333/17

In the matter between:
CORRUPTION WATCH NPC First Applicant
FREEDOM UNDER LAW NPC Second Applicant

COUNCIL FOR THE ADVANCEMENT OF

THE SOUTH AFRICAN CONSTITUTION Third Applicant
and
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Second Respondent
MXOLISI SANDILE OLIVER NXASANA Third Respondent
SHAUN KEVIN ABRAHAMS Fourth Respondent
DIRECTOR GENERAL: DEPARTMENT OF
JUSTICE AND CONSTITUTIONAL DEVELOPMENT Fifth Respondent
CHIEF EXECUTIVE OFFICER OF THE NATIONAL
PROSECUTING AUTHORITY Sixth Respondent
NATIONAL PROSECUTING AUTHORITY Seventh Respondent
DEPUTY PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Eighth Respondent
and
HELEN SUZMAN FOUNDATION Amicus Curiae

Case CCT 13/18

In the matter between:
MXOLISI SANDILE OLIVER NXASANA Applicant
and
CORRUPTION WATCH NPC First Respondent
FREEDOM UNDER LAW NPC Second Respondent
COUNCIL FOR THE ADVANCEMENT OF
THE SOUTH AFRICAN CONSTITUTION Third Respondent
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Fourth Respondent
MINISTER OF JUSTICE AND

227
CORRECTIONAL SERVICES Fifth Respondent
SHAUN KEVIN ABRAHAMS Sixth Respondent
DIRECTOR GENERAL: DEPARTMENT OF
JUSTICE AND CONSTITUTIONAL DEVELOPMENT Seventh Respondent
CHIEF EXECUTIVE OFFICER OF THE NATIONAL
PROSECUTING AUTHORITY Eighth Respondent
NATIONAL PROSECUTING AUTHORITY Ninth Respondent
DEPUTY PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Tenth Respondent
and
HELEN SUZMAN FOUNDATION Amicus Curiae

Coram: Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J,
Petse AJ and Theron J.

Judgments: Madlanga J (majority): [1] to [94]

Jafta J (minority): [95] to [129]

Heard on: 28 February 2018

Decided on: 13 August 2018

JUDGMENT

MADLANGA J (Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, and Theron J
concurring):

Introduction
[1] The applicants, Corruption Watch NPC (Corruption Watch), Freedom Under Law NPC (FUL)
and Council for the Advancement of the South African Constitution (CASAC), seek confirmation
of orders of constitutional invalidity made by the High Court of South Africa, Gauteng Division,
Pretoria (High Court). What the High Court declared constitutionally invalid are –
(a) a settlement agreement concluded by former President Jacob Gedleyihlekisa Zuma, the
Minister of Justice and Correctional Services (Minister) and the former National Director
of Public Prosecutions (NDPP), Mr Mxolisi Sandile Oliver Nxasana who is the third
respondent in the confirmation application in terms of which Mr Nxasana’s incumbency
as the NDPP was terminated;
(b) the actual termination of Mr Nxasana’s incumbency as the NDPP;
(c) a decision to authorise payment to Mr Nxasana of an amount of R17 357 233 (R17.3
million) in terms of the settlement agreement;

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(d) the appointment of Advocate Shaun Kevin Abrahams as the NDPP in the position
vacated by Mr Nxasana;
(e) section 12(4) of the National Prosecuting Authority Act261 (NPA Act); and
(f) section 12(6) of the NPA Act to the extent that it permits the President to suspend the
NDPP unilaterally, indefinitely and without pay.
[2] The High Court’s order is two-legged and quite extensive. To do justice to its content, I think
it best to render it in full in a footnote.262

261 32 of 1998.
262 Corruption Watch (RF) NPC v President of the Republic of South Africa [2018] 1 All SA 471 (GP); 2018 (1)
SACR 317 (GP) (High Court judgment) paras 128-9. The first leg of the order granted in respect of an
application brought by Corruption Watch and FUL jointly reads:
In the result we make the following order on the application of Corruption Watch and Freedom Under Law:
1. The settlement agreement between the President, the Minister of Justice and Mr Nxasana dated 14 May 2015,
is reviewed, declared invalid and set aside.
2. The termination of the appointment of Mr Nxasana as National Director of Public Prosecutions is declared
unconstitutional and invalid.
3. The decision to authorise payment to Mr Nxasana of an amount of R17 357 233, in terms of the settlement is
reviewed, declared invalid and set aside.
4. The appointment of Adv Abrahams as National Director of Public Prosecutions is reviewed, declared invalid
and set aside.
5. Decisions taken and acts performed by Adv Abrahams in his capacity as the National Director of Public
Prosecutions are not invalid merely because of the invalidity of his appointment.
6. Mr Nxasana is ordered forthwith to repay to the State all the money he received in terms of the settlement.
7. It is declared that, in terms of section 96(2)(b) of the Constitution, the incumbent President may not appoint,
suspend or remove the National Director of Public Prosecutions or someone in an Acting capacity as such.
8. It is declared 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 National Director of Public Prosecutions or, in terms of
section 11(2)(b) of the National Prosecuting Authority Act, someone in an Acting capacity as such.
9. The orders of invalidity in paragraphs 2 and 4 above are suspended for a period of 60 days or until such time
as the Deputy President has appointed a National Director of Public Prosecutions in terms of paragraph 8
above, whichever is the shorter period.
10. The costs of this application must be paid jointly and severally by the President, the Minister of Justice, Adv
Abrahams and the National Prosecuting Authority.
Here is the second leg which was granted in respect of an application launched by CASAC:
In the result we make the following order on the application of Council for the Advancement of the South African
Constitution:
1. It is declared that section 12(4) of the National Prosecuting Authority Act 32 of 1998 is unconstitutional and
invalid.
2. It is declared that section 12(6) of the National Prosecuting Authority Act is unconstitutional and invalid to the
extent that it permits the President to suspend the National Director of Public Prosecutions unilaterally,
indefinitely and without pay.
3. The order of invalidity in paragraph 2 is suspended for 18 months.
4. During the period of suspension:
4.1 An additional subsection shall be inserted after section 12(6)(a) that reads:
‘(aA) The period from the time the President suspends the National Director or a Deputy National Director to the
time he or she decides whether or not to remove the National Director or Deputy National Director shall not
exceed six months.’; and
4.2 Section 12(6)(e) shall read:
‘The National Director or a Deputy National Director provisionally suspended from office shall receive, for the
duration of such suspension, his or her full salary [no salary or such salary as may be determined by the
President].’
5. Should Parliament fail to enact legislation remedying the defect identified in paragraph 2, the interim order in
paragraph 4 shall become final.
6. The President, the Minister of Justice and the National Prosecuting Authority shall pay the applicant's costs,
including the costs of two counsel.
229
[3] The confirmation application was consolidated with an appeal by Mr Nxasana against the
High Court’s refusal to grant him condonation for the late filing of what he called “an explanatory
affidavit”. As appears from the declarations of constitutional invalidity just referred to and the
quoted order, Advocate Abrahams and the National Prosecuting Authority (NPA) were
unsuccessful before the High Court. Of particular note in this regard, the appointment of
Advocate Abrahams as the NDPP was declared constitutionally invalid and Advocate Abrahams
and the NPA were ordered to pay the applicants’ costs, including the costs of two counsel.
Advocate Abrahams and the NPA too brought an appeal before this Court against the adverse
orders. They also oppose the confirmation proceedings insofar as they relate to Advocate
Abrahams. Their appeal was heard simultaneously with the confirmation application and Mr
Nxasana’s appeal.
[4] The matter is properly before us; nothing more need be said in that regard.263 The questions
are whether the orders of constitutional invalidity must be confirmed and the appeals upheld.
[5] The applicants have cited a number of respondents. Some have entered the fray, others
not.264 The Helen Suzman Foundation applied to be admitted as a friend of the court (amicus
curiae). It is admitted as there is no reason not to grant that application.

Background
[6] The events that are at the centre of these proceedings are in the public domain. The
judgment of the High Court notes that it was common cause before that Court that since
September 2007 the recent history at the NPA “has been one of paralysing instability”. 265 That
judgment gives details of that history.266 I do not propose doing the same. I will commence with
the narrative from when Mr Nxasana, one of the people affected by the High Court’s orders,
was appointed to the position of NDPP. His appointment – which followed the short-lived
incumbency of Mr Menzi Simelane – took effect from 1 October 2013. Mr Simelane’s appointment
had come after that of Mr Vusi Pikoli who – following a suspension, a commission of inquiry into

7. The orders of invalidity made above relating to the National Prosecuting Authority Act are referred to the
Constitutional Court in terms of section 165(5) of the Constitution for confirmation.”
The High Court heard and determined the two applications simultaneously.
263 Section 172(2)(a) of the Constitution provides:

The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order
concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President,
but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
264 Before this Court the respondents that have participated throughout are Mr Nxasana, Advocate Abrahams, the

Director General: Department of Justice and Constitutional Development, the Chief Executive Officer: National
Prosecuting Authority and the National Prosecuting Authority. When the proceedings were launched before this
Court, former President Zuma was the incumbent President. Before the oral hearing, he resigned and
President Cyril Ramaphosa became President. Thirteen days before the hearing and after President
Ramaphosa had taken over, the President’s participation in the proceedings was terminated.
265 High Court judgment para 19
266 High Court judgment paras 18-46.

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his fitness to hold office, some litigation and the conclusion of a settlement agreement – had
also vacated office in terms of that agreement without finishing his term of office.
[7] In July 2014 – within about only nine months of his appointment – a process calculated to
remove Mr Nxasana from office commenced. The then President, Mr Jacob Zuma, informed
Mr Nxasana of his intention to institute an inquiry into his fitness to hold office. 267 This was
followed by a notice that the former President was considering suspending Mr Nxasana pending
finalisation of the inquiry. The former President said that suspension was necessary in order to
maintain the integrity and good administration of the NPA. The notice also specified that the
inquiry sought to establish whether certain issues were “consonant with the conscientiousness
and integrity of an incumbent in the office of National Director of Public Prosecutions as
required by the [NPA] Act”. These issues were: Mr Nxasana’s previous criminal conviction for
“violent conduct”; allegedly unbecoming and divisive comments which had the effect of bringing
the NPA into disrepute made by Mr Nxasana and reported in the media; and alleged non-
disclosure of facts and circumstances of prosecutions which Mr Nxasana had faced previously.
The former President called upon Mr Nxasana to give reasons “in this regard”. Apparently this
was an invitation for representations on why Mr Nxasana should not be suspended.268
[8] In a letter requesting an extension of the deadline for the submission of representations,
Mr Nxasana also requested particularity on the three issues itemised above to which the
intended inquiry related. By the morning of the deadline, former President Zuma had not
responded to either request. Mr Nxasana was forced to make preliminary representations so as
to meet the deadline. His intention was to supplement them upon receipt of the requested
particulars. When he followed-up on the particularity, the former President said it was not proper
to discuss these issues as they were the subject of the inquiry. Mr Nxasana approached the
High Court seeking an order: compelling former President Zuma to provide the required
particularity; and interdicting the former President from suspending him until he had furnished
him with this particularity. That application was not pursued to finality. The former President
changed tack. In late 2014 he proposed that the dispute between him and Mr Nxasana be
mediated. Mr Nxasana acceded to this proposal.
[9] It appears from a letter written on 10 December 2014 by attorneys acting for Mr Nxasana
that former President Zuma had engaged Mr Nxasana to get him to agree to vacate office. In

267 In terms of section 12(6)(a)(iv) of the NPA Act the President may remove an NDPP from office if the NDPP is no
longer a fit and proper person to hold office.
268 This is how Mr Nxasana understood what was required of him. This appears from a letter in which Mr Nxasana

requested an extension of the deadline for giving the reasons and a letter that contained the
reasons/representations themselves. This was put beyond question by the content of later correspondence
from the former President.
231
the letter Mr Nxasana made it plain that he did not want to vacate office as there was no basis
for him to. He stated that he would, however, consider stepping down only if he was fully
compensated for the remainder of the contract period.
[10] In early 2015 the former President set up the long-threatened commission that was to
enquire into Mr Nxasana’s fitness to hold office. After some preliminary work, the commission
set 11 May 2015 as the commencement date for the hearing. Parallel with this inquiry process,
Mr Hulley – the former President’s legal adviser – made a promise that Mr Nxasana would be
paid a settlement amount from public coffers. Over time that amount increased progressively.
An earlier offer contained in a draft settlement agreement was R10 million. Mr Nxasana did not
accept it. Former President Zuma was undeterred. Thereafter Mr Hulley sent Mr Nxasana
another draft settlement agreement with the amount left blank for Mr Nxasana to fill it in himself.
Nothing of moment came of this.
[11] In the end the commission hearing never commenced as settlement was eventually reached.
Mr Nxasana signed the settlement agreement on 9 May 2015. The Minister and former President
did so on 14 May 2015. In terms of this agreement Mr Nxasana would relinquish his position as
NDPP and receive a sum of R17.3 million as a settlement payment. In the event, Mr Nxasana
was paid an amount of R10 240 767.47 as the rest was retained by the state for income tax.
[12] It must be noted that, right from the onset and throughout the entire negotiation process
that culminated in the settlement agreement, Mr Nxasana unequivocally stated that he did not
wish to resign and that he considered himself to be fit for office. Instead his preference was for
former President Zuma’s allegations that he was no longer fit for office to be tested in a formal
inquiry as proposed by the former President. Throughout, he protested the existence of a
factual or legal basis for him to vacate office. Also, he disavowed any invocation by him of
section 12(8) of the NPA Act to voluntarily vacate office. It is so, of course, that he did indicate
that he would resign only if he was paid the full salary for the remainder of his term of office.
[13] On 18 June 2015 former President Zuma appointed Advocate Shaun Abrahams who – to
this day – is the incumbent NDPP.
[14] Corruption Watch and FUL approached the High Court seeking the review and setting
aside of the settlement agreement, an order that Mr Nxasana repay the R17.3 million settlement
payout and the review and setting aside of the appointment of Advocate Abrahams. In a
separate application which was later consolidated with the application by Corruption Watch and
FUL, CASAC sought an order declaring section 12(4) and (6) of the NPA Act unconstitutional.
[15] The High Court granted both applications, hence the present confirmation proceedings.

Issues
[16] The issues are whether –

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(a) the settlement agreement and, therefore, Mr Nxasana’s vacation of the office of NDPP
are constitutionally valid;
(b) Mr Nxasana should be required to repay the R17.3 million settlement payout;
(c) the appointment of Advocate Abrahams as NDPP is constitutionally invalid;
(d) section 12(4) and (6) of the NPA Act is constitutionally invalid; and
(e) the High Court erred in refusing to grant Mr Nxasana condonation for the late filing of
his affidavit.
[17] I proceed to deal with these issues, but not necessarily in this order.

The validity of the settlement agreement and Mr Nxasana’s vacation of office

[18] The importance of the office of NDPP in the administration of justice is underscored and
amplified by no less an instrument than the Constitution itself. Section 179(4) of the Constitution
requires that there be national legislation which guarantees the independence of the
prosecuting authority. In terms of section 179(1) the prosecuting authority consists of the NDPP
who is its head, Directors of Public Prosecutions and prosecutors.269 Section 179(4) provides
that national legislation must ensure that the NPA exercises its functions without fear, favour or
prejudice. That legislation is the NPA Act. Predictably, section 32(1)(a) of the NPA Act requires
members of the prosecuting authority to carry out their duties without fear, favour or prejudice,
and subject only to the Constitution and the law.
[19] This Court has said of the NPA’s independence “[t]here is ... a constitutional guarantee of
independence, and any legislation or executive action inconsistent therewith would be subject to
constitutional control by the courts”.270 The reason why this guarantee of independence exists is
not far to seek. The NPA plays a pivotal role in the administration of criminal justice. 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 – as CASAC submitted – “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.271 Also, malleability, corruption and dysfunctionality are at

269 Section 179 of the Constitution provides:

(1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and
consisting of –
(a) a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the
President, as head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
...
(4) National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or
prejudice.
270 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) para 146.
271 Section 1 of the Constitution provides:

233
odds with the constitutional injunction of prosecuting without fear, favour or prejudice. They are
thus at variance with the constitutional requirement of the independence of the NPA.
[20] At the centre of any functioning constitutional democracy is a well-functioning criminal justice
system. In Democratic Alliance Yacoob ADCJ observed that the office of the NDPP “is located
at the core of delivering criminal justice”.272 If you subvert the criminal justice system, you
subvert the rule of law and constitutional democracy itself. Unsurprisingly, the NPA Act proscribes
improper interference with the performance of prosecutorial duties. Section 32(1)(b) provides:
Subject to the Constitution and this Act, no organ of state and no member or employee of
an organ of state nor any other person shall improperly interfere with, hinder or obstruct
the prosecuting authority or any member thereof in the exercise, carrying out or
performance of its, his or her powers, duties and functions.
[21] Improper interference may take any number of forms. Without purporting to be exhaustive,
it may come as downright intimidation. It may consist in improper promises or inducements. It
may take the form of corruptly influencing the decision making or functioning of the NPA. All
these forms and others are proscribed by an Act that gets its authority to guarantee
prosecutorial independence directly from the Constitution.
[22] Another guarantee of the NDPP’s independence is provision for security of tenure. In
section 12(1) the NPA Act provides that the NDPP shall hold office for a 10 year non-renewable
term of office.273 It is now well established in terms of this Court’s jurisprudence that security of
tenure is an integral feature of the constitutional requirement of independence. In Justice
Alliance this Court held that “international standards acknowledge that guaranteed tenure and
conditions of service, adequately secured by law, are amongst the conditions necessary to
secure and promote the independence of judges”.274 These necessary conditions must, of
course, be true of the independence of the NPA as well. In a unanimous judgment in McBride
Bosielo AJ said that amongst the factors that are relevant to the independence of offices or
institutions which – in terms of constitutional prescripts – must be independent are “the method

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.
272 Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC); 2012 (12) BCLR 1297 (CC)

para 26.
273 Section 12(1) provides:

The National Director shall hold office for a non-renewable term of 10 years, but must vacate his or her office on
attaining the age of 65 years.
274 Justice Alliance of South Africa v President of the Republic of South Africa 2011 (5) SA 388 (CC); 2011 (10)

BCLR 1017 (CC) para 38.

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of appointment, the method of reporting, disciplinary proceedings and the method of removal ...
from office, and security of tenure”.275
[23] The NPA Act has two other salient features that help shield the NPA from improper
interference, namely: the non-renewability of the 10-year term of office of the NDPP; and certain
safeguards on the removal of the NDPP from office. Section 12(8) provides for the voluntary
vacation of office by an NDPP.276 This section is of some significance. It must be read in the
context of the constitutional guarantee that the office of NDPP be independent and, indeed, in
the context of all the provisions of the NPA Act that seek to give content to the provisions of
section 179(4) of the Constitution.277 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. A question that follows is whether the manner in which Mr
Nxasana vacated office is constitutionally compliant.
[24] Crucially, at the hearing before us it was no longer in dispute that Mr Nxasana had not
vacated office in terms of section 12(8). The contest concerned the question whether the
manner in which he vacated office was lawful. The applicants argued that Mr Nxasana vacated
office in a manner that was at odds with the Constitution and the law. Advocate Abrahams and
the NPA argued that an NDPP is not precluded from vacating office voluntarily otherwise than
under section 12(8). Mr Nxasana, on the other hand, accepted that his vacation of office was
not constitutionally compliant.
[25] The facts set out above point to one thing and one thing only: former President Zuma was
bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach
that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a
carrot. 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,

275 McBride v Minister of Police 2016 (2) SACR 585 (CC); 2016 (11) BCLR 1398 (CC) para 31.
276 Section 12(8) provides:
(a) The President may allow the National Director or a Deputy National Director at his or her request, to vacate his
or her office –
(i) on account of continued ill-health; or
(ii) for any other reason which the President deems sufficient.
(b) The request in terms of paragraph (a)(ii) shall be addressed to the President at least six calendar months prior
to the date on which he or she wishes to vacate his or her office, unless the President grants a shorter period in
a specific case.
(c) If the National Director or a Deputy National Director –
(i) vacates his or her office in terms of paragraph (a)(i), he or she shall be entitled to such pension as he or she
would have been entitled to under the pension law applicable to him or her if his or her services had been
terminated on the ground of continued ill-health occasioned without him or her being instrumental thereto; or
(ii) vacates his or her office in terms of paragraph (a)(ii), he or she shall be deemed to have been retired in terms of
section 16(4) of the Public Service Act, and he or she shall be entitled to such pension as he or she would have
been entitled to under the pension law applicable to him or her if he or she had been so retired.
277 To recapitulate, this is the section that provides that “[n]ational legislation must ensure that the prosecuting

authority exercises its functions without fear, favour or prejudice”.

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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.
[26] 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”.
[27] 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.
[28] The inference is inescapable that he 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. Although I deliberately eschew
deciding the question whether an NDPP may vacate office outside of the provisions of section
12(8) of the NPA Act, this much I do want to say: it can never be that vacating office outside of
these provisions would ever entitle an NDPP to more benefits than those set out in section 12(8).
Section 12(8) is specific on the benefits. It provides that when an NDPP vacates office on the

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basis of “continued ill-health”,278 “he or she shall be entitled to such pension as he or she would
have been entitled to under the pension law applicable to him or her if his or her services had
been terminated on the ground of continued ill health occasioned without him or her being
instrumental thereto”.279 When an NDPP vacates office for “any other reason which the President
deems sufficient”,280 “he or she shall be deemed to have been retired in terms of section 16(4)
of the Public Service Act, and he or she shall be entitled to such pension as he or she would
have been entitled to under the pension law applicable to him or her if he or she had been so
retired”.281 All these are the usual public service benefits. The problem with benefits that are not
capped by the section 12(8) limit is that they give rise to the real possibility of NDPPs being
bought out of office. That, as I say, compromises the independence of the office of NDPP.
Whatever we are to make of the full import of section 12(8), the manner of voluntary vacation of
office should never undermine the constitutional imperative of the independence of the NDPP.
[29] The settlement agreement, Mr Nxasana’s vacation of office and the obligation to pay the
sum of R17.3 million are one composite whole. In fact, the vacation of office and obligation to
pay and subsequent payment were in terms of the settlement agreement. I am led to the
conclusion that all are constitutionally invalid for having come about in a manner inconsonant
with the constitutionally required independence of the office of NDPP.
[30] Although I have alluded to this, let me say it explicitly. On the approach I have taken, it is
not necessary to deal with the argument by Advocate Abrahams and the NPA that an NDPP
may vacate office voluntarily outside the provisions of section 12(8).

Was the appointment of Advocate Abrahams constitutionally invalid?

[31] The appointment of Advocate Abrahams as NDPP was an act consequential upon the
constitutionally invalid vacation of office by Mr Nxasana. Consequential acts which follow on
constitutionally invalid conduct are commonplace. An interesting question raised by the oft cited
statement of law in Oudekraal282 is the effect of the constitutional invalidity of Mr Nxasana’s
vacation of office on the consequential act of the appointment of Advocate Abrahams. 283 In that
statement Howie P and Nugent JA said that until administrative action is set aside by a court in
review proceedings, it continues to exist in fact and has legal consequences that cannot simply

278 Section 12(8)(a)(i).

279 Section 12(8)(c)(i).
280 Section 12(8)(a)(ii).
281 Section 12(8)(c)(ii).
282 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA).
283 The fact that Oudekraal concerned administrative action should not lead to the conclusion that I am suggesting

that former President Zuma’s conduct relative to Mr Nxasana’s vacation of office was administrative action. As
appears above from how I resolved the question of the lawfulness of Mr Nxasana’s vacation of office, it is not
necessary for me to decide the issue whether the former President’s conduct was administrative action. That
said, there is no reason in principle why Oudekraal should not apply to the conduct of the Executive.
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be overlooked.284 This pronouncement has been relied upon by this Court on a number of
occasions.285 Does this mean that – because Mr Nxasana’s vacation of office had not yet been set
aside when Advocate Abrahams was appointed NDPP – Abrahams was validly appointed?
[32] What may lead some readers of what I have paraphrased from Oudekraal astray is reading
it in isolation. Later Oudekraal makes it clear that where a consequential act could be valid only
as a result of the factual existence – not legal validity – of the earlier act, the consequential act
would be valid only for so long as the earlier act had not been set aside. 286 In Seale Cloete JA
for a unanimous Court put this beyond question. He held:
Counsel for both Seale and the TYC sought to rely in argument on passages in the
decision of this court in Oudekraal Estates (Pty) Ltd v City of Cape Town which adopted
the analysis by Christopher Forsyth of why an act which is invalid may nevertheless
have valid consequences and concluded:
‘Thus the proper enquiry in each case – at least at first – is not whether the initial act
was valid but rather whether its substantive validity was a necessary precondition for
the validity of consequent acts. If the validity of consequent acts is dependent on no
more than the factual existence of the initial act then the consequent act will have
legal effect for so long as the initial act is not set aside by a competent court.’287
...
[T]he reliance by counsel on the decision in Oudekraal, [is] misplaced. As appears from the
italicised part of the judgment just quoted, the analysis was accepted by this court as being
limited to a consideration of the validity of a second act performed consequent upon a first
invalid act, pending a decision whether the first act is to be set aside or permitted to stand. This
court did not in Oudekraal suggest that the analysis was relevant to that latter decision.”
[33] The Supreme Court of Appeal then concluded that “it is clear from Oudekraal ... that if the
first act is set aside, a second act that depends for its validity on the first act must be invalid as
the legal foundation for its performance was non existent”.
[34] In Kirland this Court accepted what was decided in Seale. Writing for the majority, Cameron
J had this to say:

284 Oudekraal para 26.

285 See Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC); 2017 (1) BCLR 1 (CC) para 88; Merafong
City v AngloGold Ashanti Limited 2017 (2) SA 211 (CC); 2017 (2) BCLR 182 (CC) para 36; MEC for Health,
Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC); 2014 (5) BCLR
547 (CC) para 103; Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC);
2011 (3) BCLR 229 (CC) para 82; and Camps Bay Ratepayers’ and Residents Association v Harrison 2011 (4)
SA 42 (CC); 2011 (2) BCLR 121 (CC) para 62.
286 Oudekraal para 31.
287 Seale v Van Rooyen NO; Provincial Government, North West Province v Van Rooyen NO 2008 (4) SA 43 (SCA)

para 13.
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In Seale ... the Court, applying Oudekraal, held that acts performed on the basis of the
validity of a prior act are themselves invalid if and when the first decision is set
aside. ... [T]he Court rightly rejected an argument, in misconceived reliance on Oudekraal,
that the later (second) act could remain valid despite the setting aside of the first.
[35] Now that the manner in which Mr Nxasana vacated office has been declared
constitutionally invalid, it follows that the appointment of Advocate Abrahams is constitutionally
invalid. The appeal by Advocate Abrahams and the NPA directly countered the application for
confirmation of the order declaring the appointment of Advocate Abrahams invalid. As a
consequence, that appeal falls to be dismissed.

The validity of section 12(4) and (6) of the NPA Act

[36] The challenge to the constitutional validity of this section is not founded on any factual
matrix. Section 12(4) is about the extension of the term of office of an NDPP who is otherwise
liable to retire on grounds of age. In these proceedings nobody was affected by the provisions
of this section. Section 12(6) provides for the indefinite suspension of an NDPP by the President
without pay or with such pay as the President may determine. Mr Nxasana was suspended with
full pay. Nobody else was suspended. A preliminary issue that arises is whether we must
entertain this abstract challenge.
[37] This Court has entertained abstract challenges in appropriate circumstances. In Ferreira in
the context of an abstract challenge arising from public interest litigation, O’Regan J held that
the relevant factors are –
whether there is another reasonable and effective manner in which the challenge can
be brought; the nature of the relief sought, and the extent to which it is of general and
prospective application; and the range of persons or groups who may be directly or
indirectly affected by any order made by the court and the opportunity that those
persons or groups have had to present evidence and argument to the court.288
[38] In Lawyers for Human Rights Yacoob J, writing for the majority, quoted this passage with
approval289 and held that even though O’Regan J was in the minority, the passage was not
inconsistent with anything said in the majority judgment on standing. Crucially, he then held that
the factors set out by O’Regan J in respect of public interest standing where there is a live
controversy are of relevance even where there is none. In other words, the factors apply even in
the case of abstract public interest challenges. This is how he articulated this:

288 Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) para 234.
289 Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) para 16.
239
 It is ordinarily not in the public interest for proceedings to be brought in the abstract. But
this is not an invariable principle. There may be circumstances in which it will be in the
public interest to bring proceedings even if there is no live case. The factors set out by
O’Regan J help to determine this question. The list of relevant factors is not closed. I
would add that the degree of vulnerability of the people affected, the nature of the right
said to be infringed, as well as the consequences of the infringement of the right are
also important considerations in the analysis.
[39] I am of the view that – in the present circumstances – it is imperative that the abstract
challenge be entertained. What stands out is the nature of the unconstitutionality complained of
and its susceptibility to occurring without detection. CASAC argued that when the alleged
unconstitutionality relates to independence as is the case with the present challenges, abstract
challenges are vital. It explained that “the problem is not only the actual exercise of
unconstitutional powers, but the subtle ways in which the mere existence of those powers
undermines independence”. An NDPP may refrain from acting independently because she or he
fears indefinite unpaid suspension and the factual matrix for the challenge not to be abstract
may never arise. As CASAC further argued, rather than give the factual matrix an opportunity to
eventuate, it is better to pre emptively challenge the relevant statutory provision.
[40] It is, therefore, not surprising that the Glenister II290 and Helen Suzman Foundation291
challenges were determined in the absence of any factual predicate. In sum, this is a fitting case
to entertain an abstract challenge.
[41] I next proceed to deal with the challenges to the two subsections one after the other. 292

290 Glenister (II) v President of the Republic of South Africa 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC).
291 Helen Suzman Foundation v President of the Republic of South Africa; Glenister v President of the Republic of
South Africa 2015 (2) SA 1 (CC); 2015 (1) BCLR 1 (CC).
292 Section 12(4) and (6) provides:

(4) If the President is of the opinion that it is in the public interest to retain a National Director or a Deputy National
Director in his or her office beyond the age of 65 years, and –
(a) the National Director or Deputy National Director wishes to continue to serve in such office; and
(b) the mental and physical health of the person concerned enable him or her so to continue, the President may
from time to time direct that he or she be so retained, but not for a period which exceeds, or periods which in
the aggregate exceed, two years: Provided that a National Director’s term of office shall not exceed 10 years.
...
(6) (a) The President may provisionally suspend the National Director or a Deputy National Director from his or her
office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to
the provisions of this subsection, may thereupon remove him or her from office –
(i) for misconduct;
(ii) on account of continued ill-health;
(iii) on account of incapacity to carry out his or her duties of office efficiently; or
(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.
(b) The removal of the National Director or a Deputy National Director, the reason therefor and the representations
of the National Director or Deputy National Director (if any) shall be communicated by message to Parliament
within 14 days after such removal if Parliament is then in session or, if Parliament is not then in session, within
14 days after the commencement of its next ensuing session.
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[42] Section 12(4) empowers the President to extend the term of office of an NDPP or a Deputy
NDPP which must ordinarily come to an end at age 65 beyond that age, but not for a period
which exceeds, or periods which in the aggregate exceed, two years provided that an NDPP’s
term of office shall not exceed 10 years. The President’s power to extend an NDPP’s term of office
undermines the independence of the office. Here is how this was explained in Justice Alliance:
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.293
[43] In similar vein, Mogoeng CJ held in Helen Suzman Foundation:
Renewal invites a favour-seeking disposition from the incumbent whose age and
situation might point to the likelihood of renewal. It beckons to the official to adjust her
approach to the enormous and sensitive responsibilities of her office with regard to the
preferences of the one who wields the discretionary power to renew or not to renew the
term of office. No holder of this position of high responsibility should be exposed to the
temptation to ‘behave’ herself in anticipation of renewal.294
[44] There is no basis for this reasoning not to apply to section 12(4). The High Court’s
declaration of constitutional invalidity must be confirmed.
[45] Coming to section 12(6), two aspects that make the President’s power to suspend particularly
egregious are the facts that she or he may suspend with or without pay and for an indefinite
period. Of importance, suspending without pay is the default position: the section says that for
the duration of the suspension, an NDPP or Deputy NDPP “shall receive no salary or such salary
as may be determined by the President”. There is no guidance whatsoever on how and on what

(c) Parliament shall, within 30 days after the message referred to in para (b) has been tabled in Parliament, or as
soon thereafter as reasonably possible, pass a resolution as to whether or not the restoration to his or her office
of the National Director or Deputy National Director so removed, is recommended.
(d) The President shall restore the National Director or Deputy National Director to his or her office if Parliament so
resolves.
(e) The National Director or a Deputy National Director provisionally suspended from office shall receive, for the
duration of such suspension, no salary or such salary as may be determined by the President.
293 Justice Alliance para 75.
294 Helen Suzman Foundation para 81.

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bases the President may exercise the discretion to (a) allow receipt of a salary and (b) determine
its quantum. This tool is susceptible to abuse. It may be invoked to cow and render compliant
an NDPP or Deputy NDPP. The prospect of not earning an income may fill many with dread and
apprehension. The possibility of this enduring indefinitely exacerbates the situation.This is not a
tool that should be availed to the Executive. It has the potential to undermine the independence
and integrity of the offices of NDPP and Deputy NDPP and, indeed, of the NPA itself.
[46] In Helen Suzman Foundation this Court held:
Suspension without pay defies the exceedingly important presumption of innocence
until proven guilty or the audi alteram partem rule and unfairly undermines the National
Head’s ability to challenge the validity of the suspension by the withholding of salary
and benefits. It irrefutably presumes wrongdoing. An inquiry may then become a
dishonest process of going through the motions. Presumably the Minister’s mind would
already have been made up that the National Head is guilty of what she is accused of.
Personal and familial suffering that could be caused by the exercise of that draconian
power also cries out against its retention. It is also the employer’s duty to expedite the
inquiry to avoid lengthy suspensions on pay.295
[47] There is the question of “unilateral suspension”296 on which the challenge is also pegged. I
read Mogoeng CJ for the majority in Helen Suzman Foundation to say there is nothing
inherently wrong with a unilateral suspension. What he has a problem with are the possibility of
suspension without pay and benefits and the use of the words “as the Minister deems fit” in
section 17DA(2)(a) of the South African Police Service Act.297 In McBride, on the other hand,
Bosielo AJ, writing for a unanimous Court, says:
To my mind, the cumulative effect of the impugned sections has the potential to diminish
the confidence the public should have in IPID [Independent Police Investigative
Directorate]. As the amicus curiae emphasised in its submissions, both the
independence and the appearance of an independent IPID are central to this matter.
The manner in which the Minister dealt with Mr McBride demonstrates, without doubt,
how invasive the Minister’s powers are. What exacerbates the situation is that he acted
unilaterally. This destroys the very confidence which the public should have that IPID
will be able, without undue political interference, to investigate complaints against the
police fearlessly and without favour or bias. IPID must therefore not only be independent,

295 Helen Suzman Foundation para 85

296 Ordinarily, suspensions are unilateral acts. In the context of a functionary who is constitutionally required to be
independent the question may arise whether the power to suspend may be exercised by the member of the
Executive on whom that power vests without the involvement of Parliament; with the involvement of Parliament
the exercise of the power would be bilateral.
297 68 of 1995.

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but must be seen to be so. Without enjoying the confidence of the public, IPID will not
be able to function efficiently, as the public might be disinclined or reluctant to report
their cases to it.298
[48] I do not think this is a proper case in which I need grapple with the import of the content of
the two judgments on “unilateral suspension”. There is enough to invalidate section 12(6) based
on the above reasoning. I conclude that section 12(6) is constitutionally invalid for empowering
the President to suspend an NDPP and Deputy NDPP without pay and for an indefinite duration.

Mr Nxasana’s appeal
[49] This appeal concerns the High Court’s refusal of condonation of the late filing of an affidavit
Mr Nxasana labelled as an “explanatory affidavit”. He was the third respondent in the application
brought by Corruption Watch and FUL and the fourth in CASAC’s. He filed the explanatory affidavit
out of turn; that is, he did not file it when answering affidavits by respondents were due. In fact,
it was so out of time that he filed it after all affidavits had been filed even in the CASAC
application which had been launched later. Mr Nxasana accepts that –even though he styles the
affidavit as an explanatory affidavit – it is in fact an answering affidavit in both applications. The
affidavit was filed under cover of a notice that was headed “notice to abide”. In addition to saying
Mr Nxasana would abide the decision of the Court, the notice said that the affidavit would be used
to explain “the position of the third respondent” (Mr Nxasana).
[50] The former President opposed the application for condonation.
[51] The fundament of Mr Nxasana’s grievance in the appeal is that the High Court made certain
adverse findings against him without considering his version and thus contrary to the audi
alteram partem (loosely, hear both sides) rule. He argues that in the circumstances, the High
Court’s order is not just and equitable within the meaning of section 172(1)(b) of the Constitution.299
[52] He “notes” that he was never served with any of the papers in the CASAC application until
April 2017 and that in the application by Corruption Watch and FUL he received only the
founding papers. By April 2017 all affidavits in both applications had been filed. He filed the
explanatory affidavit on 11 April 2017. He explains filing out of time in these terms:
I accept that my waiting until the conclusion of the rule 30/30A proceedings was not in
strict compliance with the Rules. However, I submit that it was a pragmatic approach

298 McBride para 43

299 Section 172(1) provides:
When deciding a constitutional matter within its power, 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.
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 given the delay inevitably caused by the President’s failure to comply with rule 53 and
my desire to only provide a single affidavit to Court.
[53] The High Court refused condonation for two reasons. The first was that the explanation for
the delay was not persuasive. I agree. The second was that “it is generally accepted that when
evidence is presented so late in proceedings, there is the danger of it having been tailored to fit a
particular position”. On this the question arises: how real was this danger in the instant matter?
[54] Before dealing with this second reason, let me touch on Mr Nxasana’s apparent complaint
that he did not always receive proper service of the papers. Mr Nxasana says that service of the
application papers on him was haphazard at best. I do not want to make much of this. He
seems to have been aware of what was going on. This is especially so with regard to the
application by Corruption Watch and FUL. He assisted these applicants closely with the
compilation of the rule 53 record. That being the case, if he was ever intent on acting
expeditiously, he could have taken the initiative and insisted on being served with the papers.
After all, he is an experienced attorney.
[55] The explanatory affidavit first deals with the “background”. Here Mr Nxasana begins with
discussing facts around his appointment as NDPP. Nothing contentious arises from that.
[56] It next deals with acrimony between Mr Nxasana, on the one hand, and Advocate Jiba, the
former Acting NDPP, and Advocate Mrwebi, the Special Director: Specialised Commercial
Crime Unit, on the other. The acrimony allegedly erupted soon after Mr Nxasana’s
appointment. These are allegations that were not coming to the fore for the first time. In the
explanatory affidavit Mr Nxasana was repeating allegations he had made previously in his
founding affidavit in the application to interdict former President Zuma from suspending
him. That affidavit was before the High Court in the present proceedings. It had been filed by
CASAC before the explanatory affidavit was filed. Mr Nxasana had also made these same
allegations as far back as 1 August 2014 in the letter in which he made representations as to
why the former President should not suspend him. That letter too had already been filed of
record in the present proceedings by the time Mr Nxasana filed the explanatory affidavit.
[57] The explanatory affidavit then deals with various steps that Mr Nxasana says he took to
address the instability that existed at the NPA. In a context that had nothing to do with Mr
Nxasana’s condonation application, the High Court’s judgment itself noted that it was common
cause before it that since September 2007 the recent history at the NPA “ha[d] been one of
paralysing instability”. The steps that Mr Nxasana says he took are also nothing we were seeing
for the first time in the explanatory affidavit. For example, in the papers filed of record there is
earlier mention of: the fact that Mr Nxasana obtained an opinion from senior counsel regarding
adverse findings that had been made by the High Court and Supreme Court of Appeal against

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Advocate Jiba, Advocate Mrwebi and Advocate Mzinyathi; the appointment of retired Justice
Yacoob to enquire into the instability at the NPA; a memorandum prepared by Mr Willie Hofmeyr
addressed to the Minister for onward transmission to former President Zuma in which the former
President was being requested to provisionally suspend Advocates Jiba, Mrwebi and Mzinyathi;
and Mr Nxasana’s requests for a meeting with former President Zuma for the former President
to intervene and address the instability at the NPA.
…
[59] After the background the explanatory affidavit deals with the circumstances that led to Mr
Nxasana’s resignation. On this, correspondence that is contemporaneous with those
circumstances lends support to what Mr Nxasana is now saying in the explanatory affidavit. To
an extent the settlement agreement itself also records why it was concluded; and that too is
supportive of Mr Nxasana’s version in the explanatory affidavit.
[60] The explanatory affidavit next asserts – and substantiates extensively – that the settlement
agreement was not concluded pursuant to a request by him to vacate office. I need not say
much on this because the High Court – relying on objective material filed as part of the rule 53
record before the explanatory affidavit was deposed to – found likewise.
[61] I now revert to the High Court’s view that “it is generally accepted that when evidence is
presented so late in proceedings, there is the danger of it having been tailored to fit a particular
position”. Based on my analysis of the content of the explanatory affidavit, it seems that the
High Court applied the view without a close look at the specific facts of this case. That is, it did
not consider how real the danger of the evidence having been tailored in a particular way was in
this specific instance. Looking at the content of the explanatory affidavit, I think very little in it
was surfacing for the first time when it was filed. And nothing in that is crucial to the
determination of the issues. That to me substantially minimises, if not eliminates, the danger
identified by the High Court. Does that entitle us to interfere with the High Court’s exercise of
discretion in refusing condonation?
[62] The High Court’s decision entailed the exercise of a discretion “in the strict sense”300 or “true
sense”.301 As such, there are limited bases for us to interfere. In National Coalition this Court held:
A court of appeal is not entitled to set aside the decision of a lower court granting or
refusing a postponement in the exercise of its discretion merely because the court of
appeal would itself, on the facts of the matter before the lower court, have come to a

300 South African Broadcasting Corporation Limited v National Director of Public Prosecutions 2007 (1) SA 523
(CC); 2007 (2) BCLR 167 (CC) para 39.
301 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd 2015 (5) SA 245 (CC);

2015 (10) BCLR 1199 (CC) paras 84-5.

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 different conclusion; it may interfere only when it appears that the lower court had not
exercised its discretion judicially, or that it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which in the result could not
reasonably have been made by a court properly directing itself to all the relevant facts
and principles.302
[63] To my mind, the view that the High Court took on the danger of improperly tailoring
evidence amounts to a misdirection on the facts. That view was a central pillar in the High
Court’s exercise of discretion. The other pillar was the lack of a satisfactory explanation for the
delay. Because of the misdirection on the facts, one of the central pillars collapses. I do not see
how the edifice can remain standing on only one of the central pillars. We are thus entitled to
interfere with the exercise of discretion. Must we then grant condonation and accept Mr
Nxasana’s explanatory affidavit?
[64] In Brummer this Court held that it is the interests of justice that are paramount in
considering whether to grant condonation. On how interests of justice are determined it held:
The interests of justice must be determined by reference to all relevant factors, including
the nature of the relief sought, the extent and cause of the delay, the nature and cause
of any other defect in respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness of the applicant's
explanation for the delay or defect.303
[65] Although the explanation for the delay is weak, Mr Nxasana is strong on the merits of what
the explanatory affidavit was – in the main – meant to achieve; that is to counter former
President Zuma’s version. For me, another factor that should count in Mr Nxasana’s favour is
that, although he delayed in filing his own affidavit, he expended time and effort towards the
compilation of a proper rule 53 record and was thus of great assistance not only to Corruption
Watch and FUL but to the Court as well. Also, based on the possible relief that may be granted
and the likely bases for it, a lot is at stake in this matter; that tends to tilt the scales towards
giving a hearing to all disputants. Lastly, I am not aware of prejudice that was suffered by any
party as a result of the late filing of the explanatory affidavit; and none was suggested.
[66] On balance, I am of the view that condonation must be granted and the explanatory
affidavit accepted.
[67] Reverting to the declarations of invalidity, what must follow them?

Remedy

302 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC); 2000 (1) BCLR
39 (CC) para 11. See also Mathale v Linda 2016 (2) SA 461 (CC); 2016 (2) BCLR 226 (CC) para 40.
303 Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC); 2000 (5) BCLR 465 (CC) para 3. See

also Aurecon South Africa (Pty) Ltd v City of Cape Town 2016 (2) SA 199 (SCA) para 17.
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General
[68] There is no preordained consequence that must flow from our declarations of constitutional
invalidity. In terms of section 172(1)(b) of the Constitution we may make any order that is just
and equitable. The operative word “any” is as wide as it sounds. Wide though this jurisdiction
may be, it is not unbridled. It is bounded by the very two factors stipulated in the section –
justice and equity. This Court has laid down certain principles in charting the path on the
exercise of discretion to determine a just and equitable remedy.
[69] What must be paramount in the relief that a court grants is the vindication of the rule of
law.304 The effect of that is the reversal of the consequences of the constitutionally invalid
conduct. Ordinarily, therefore, Mr Nxasana would have to resume office as he did not vacate it
validly. This is analogous to the situation of an employee whose dismissal was invalid. About
that this is what Zondo J, writing for the majority, said in Steenkamp:
An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is
invalid has never been dismissed. If, in the eyes of the law, that employee has never
been dismissed, that means the employee remains in his or her position in the employ
of the employer. In this Court’s unanimous judgment in Equity Aviation, Nkabinde J
articulated the meaning of the word ‘reinstate’ in the context of an employee who has
been dismissed. She said, quite correctly, it means to restore the employee to the
position in which he or she was before he or she was dismissed. With that meaning in
mind, the question that arises in the context of an employee whose dismissal has been
found to be invalid and of no force and effect is: how do you restore an employee to the
position from which he or she has never been moved? That a dismissal is invalid and of
no force and effect means that it is not recognised as having happened. It is different
from a dismissal that is found to be unfair because that dismissal is recognised in law as
having occurred. When a dismissal is held to be unfair, one can speak of a
reinstatement but not in the case of an invalid dismissal. This, therefore, means that an
order of reinstatement is not competent for an invalid dismissal.305
[70] So, effectively this means Mr Nxasana remains in office as his vacation was invalid. All that
would have to happen is for him to physically resume office. A natural consequence of that
would be that Advocate Abrahams would have to be removed from office. But must all that –
that is the resumption and vacation of office by Mr Nxasana and Advocate Abrahams,
respectively – follow inexorably?

304 See Electoral Commission v Mhlope 2016 (5) SA 1 (CC); 2016 (8) BCLR 987 (CC) para 130.
305 Steenkamp v Edcon Limited 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC) paras 189-90.
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[71] The specific circumstances of a given matter may displace what should ordinarily be the
position. In Mhlope we granted just and equitable relief that was at odds with extant statutory
provisions. Mogoeng CJ held that the failure of the Electoral Commission to compile a voters’
roll in accordance with section 16(3) of the Electoral Act306 was at “odds with the strictures not just
of the law but also of the rule of law”.307 When it came to a choice between scuppering the local
government elections which – in terms of the Constitution – had to take place by a certain date308
and upholding the strictures of the law, the Court opted for allowing the elections to go ahead.
[72] What starkly helps illuminate why section 172(1)(b) of the Constitution empowers us –
where justice and equity dictate – to go so far as to make orders that are at odds with extant law
is the Canadian Supreme Court’s decision in the Manitoba Language Rights case.309 Without
suggesting that (for a fact) this case informed the inclusion of section 172(1)(b) in our Constitution,
it typifies difficult situations that explain why the framers of our Constitution may have decided to
avert those situations by expressly including this expansive remedial power. Very briefly on this
case, since 1890 the Manitoba Parliament had enacted statutes in English only. This was
contrary to constitutional prescripts that required that statutes be enacted in English and French.
[73] These statutes were held to be invalid, and this holding was made in 1985, some 95 years
from the time the Manitoba Parliament started enacting statutes in this manner. Realising that a
declaration of invalidity without more would take Manitoba back 95 years in that the declaration
would: undo post 1890 amendments to statutes that continued to exist; revive pre 1890 statutes
that had since been repealed; and leave without statutory governance situations that were not
provided for statutorily before 1890 but which, as at the date of the judgment, plainly required
statutory governance, the Canadian Supreme Court decided to deem the invalid statutes
temporarily valid for the period necessary for translation to French, re enactment, printing and
publication. The Court held that not to do so would result in the Province of Manitoba “being
without a valid and effectual legal system for the present and future”, something that would be
at odds with the rule of law. Crucially, without the equivalent of section 172(1)(b), the Court was
able to keep in force laws that were unconstitutional.
[74] The relevance of this is that – despite the fact that ordinarily the Canadian Supreme Court
had to invalidate all the affected laws without more – it did not do so because justice, equity and
indeed the rule of law dictated otherwise.

306 73 of 1998.
307 Mhlope para 122.
308 Section 159 of the Constitution provides:

(1) The term of a Municipal Council may be no more than five years, as determined by national legislation.
(2) If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be
held within 90 days of the date that Council was dissolved or its term expired.
309 Re Manitoba Language Rights [1985] 1 SCR 721; 1985 CanLII 33 (SCC).

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[75] The fact that in terms of our declaration of invalidity Mr Nxasana is ordinarily entitled to
resume office is the default legal position. As such, it is a legal position like any other. It enjoys
no place in law that is more special than – say – the provisions of section 16(3) of the Electoral
Act that were in issue in Mhlope. Despite the continued validity of those provisions we were able
– in the exercise of the section 172(1)(b) power – to make an order at variance with them.
[76] I have had the pleasure of reading the judgment by Jafta J (second judgment). I disagree
with much that it says. After some preliminary issues, it begins the debate by making an
observation that “Mhlope is not authority for the proposition that an employee whose dismissal
has been declared unlawful cannot resume his or her duties”. Of course, that is so. But that is
not the end of the matter. The principle laid down by Mhlope is that – if justice and equity so
require – an existing law may not be adhered to. Steenkamp does not purport to say anything at
odds with that. It merely declared what the legal position was. Statutory provisions do something
similar, if not more; they create law. We were able to depart from one of them in Mhlope.
[77] Another basis of distinction by the second judgment is that “[i]t is true that the order that
was issued in Mhlope suspended the operation of a valid statute. But this was linked to the
suspension of the declaration of invalidity.” For present purposes, what difference there may be
between Mhlope and the present matter is not in substance, but in context only. In the present
matter as well there is a declaration of invalidity. That is the invalidity of Mr Nxasana’s vacation
of office. So, there is nothing magical about the fact that we made a declaration of invalidity in
Mhlope. The ordinary effect of declaring Mr Nxasana’s vacation of office invalid is that – in
accordance with the Steenkamp principle – Mr Nxasana should return to office. As was the case
with section 16(3) of the Electoral Act in Mhlope, this principle is the extant legal position that
must ordinarily carry the day. The question is: why – as seems to be the suggestion of the
second judgment – this principle must be immune from the courts’ just and equitable remedial
jurisdiction under section 172(1)(b) of the Constitution? Why must it inexorably take
precedence? If in Mhlope we were able to hold that “the duty imposed by section 16(3) is ...
suspended for purposes of the August 2016 elections”, here as well we should – by parity of
reasoning – be able to suspend the applicability of the Steenkamp principle.
[78] In paragraphs 106 to 112 the second judgment deals at length with considerations that
moved this Court to order suspensions of declarations of invalidity in other matters and
concludes that nothing similarly calls for that in the instant matter. I will not deal with all those
considerations. Suffice it to say that in those other matters this Court never purported to lay
down a closed list of scenarios where suspensions of declarations of invalidity may be ordered.
The question is whether – in a given case – justice and equity demand that a suspension be

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made. Here they do. After all, although Mr Nxasana may have been under pressure from former
President Zuma, he did not cover himself in glory; more on this later.
[79] My reasoning in this regard applies equally to the second judgment’s discussion of section
12 of the NPA Act. The second judgment underscores the detail that has to be followed for an
NDPP to be removed from office. I do not see why – in comparison to section 16(3) of the
Electoral Act – section 12 of the NPA Act must have some superior force. The second judgment
emphasises the fact that section 12 is “umbilically linked to the Constitution”. So is section 16(3)
of the Electoral Act which – as we held in Mhlope – helps enhance so important a fundamental
right as the right to vote; a right that is at the centre of constitutional democracy. Indeed, in our
constitutional dispensation universal adult suffrage is one of the founding values. Thus the detail
of the procedure that would normally have to be followed in order to remove Mr Nxasana from
office makes no difference. The point of substance is that – like section 16(3) of the Electoral
Act – section 12 of the NPA Act may be departed from if justice and equity so dictate.
[80] I do not see the inconsistency adverted to in the second judgment with regard to reliance
on section 12 in declaring the vacation of office invalid but then not holding that it is obligatory,
in terms of section 12, that Mr Nxasana be allowed to return to office. The very quotation by the
second judgment from Mhlope also says that the Electoral Commission had not complied with
section 16(3). Therefore, section 16(3) was central to the ultimate declaration of constitutional
invalidity. And yet the Court then proceeded to suspend the duty imposed by section 16(3). Where
then is the distinction that the second judgment seeks to draw in this regard? I do not see it.
[81] In sum, I see no legal impediment to us being able to depart from what is nothing other than
another legal position; that is the default legal position that Mr Nxasana should ordinarily
resume office. Likewise, I do not understand why we should treat section 12 of the NPA Act
differently from how we treated section 16(3) of the Electoral Act. The question is: must we
depart from the default position dictated by the Steenkamp principle and the process imposed
by section 12? What is just and equitable for us to order? That is what I next deal with both with
regard to Mr Nxasana and Advocate Abrahams.

The resumption of office by Mr Nxasana or retention of Advocate Abrahams

[82] In the context of the just and equitable remedial jurisdiction provided for in section 8 of the
Promotion of Administrative Justice Act,310 Moseneke DCJ said that “at a broader level [the
purpose of a public law remedy is] to entrench the rule of law”.311In the same context in
Bengwenyama Froneman J said:

310 3 of 2000. I think the pronouncements in that context are of relevance to the just and equitable jurisdiction
provided for in section 172(1)(b) of the Constitution.
311 Steenkamp NO v Provincial Tender Board Eastern Cape 2007 (3) SA 121 (CC); 2007 (3) BCLR 300 (CC) para 29.

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I do not think that it is wise to attempt to lay down inflexible rules in determining a just
and equitable remedy following upon a declaration of unlawful administrative action. The
rule of law must never be relinquished, but the circumstances of each case must be
examined.312
[83] Where necessary, the aim is to ameliorate the effect of vindicating the rule of law. I say where
necessary because in a given case it may be fitting to undo – without any qualification – everything
that came about as a result of the constitutionally invalid conduct. But the injustice and inequity
arising from this may be of such a nature that the reversal – if there must be any at all – may have
to be tempered. That is a judgment call to be made based on the circumstances of each case.
[84] In the present context, relief that upholds the rule of law is one that helps vindicate the
integrity of the office of NDPP.
[85] Starting with Mr Nxasana, I have a lot of sympathy for him for the undue, persistent
pressure to which he was subjected. That said, based on the objectively available material,
quite early on he indicated his preparedness to vacate office if he was paid in full for the
remainder of his contract period. He made this demand when he had been in office for just over
a year. And yet he wanted a payout for close to nine years, the unexpired period of his term of
office. Some of the objectively available material was obtained by Corruption Watch and FUL
from Mr Nxasana himself when he was assisting them with collating the rule 53 record. Effectively,
although Mr Nxasana strongly protested his fitness for office, he was saying he was willing to be
bought out of office if the price was right. As much as I sympathise with him, I do not think that is
the reaction expected of the holder of so high and important an office; an office the holder of
which – if she or he is truly independent – is required to display utmost fortitude and resilience. Even
allowing for human frailties – because Mr Nxasana is human after all – I do not think the holder
of the office of NDPP could not reasonably have been expected to do better. His conduct leads
me to the conclusion that a just and equitable remedy is not to allow him to return to office.
[86] I do agree with the second judgment that exercising our just and equitable remedial
jurisdiction in a manner that perpetuates non-compliance with an extant legal position must be
done only in exceptional circumstances. In Mhlope what was exceptional was the fact that, but
for not adhering to the strictures of section 16(3) of the Electoral Act, there would have been a
constitutional crisis. In Black Sash if we had not allowed the constitutionally invalid contract to
continue, the vulnerable social grant beneficiaries would have been subjected to untold
hardship and suffering. What we held in these two judgments does not create a closed list of
what constitutes exceptional circumstances. What is exceptional depends on the circumstances

312 Bengwenyama para 85.

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of each case. The question is whether there are exceptional circumstances in the present case.
There are, and here is why.
[87] The narrative at the beginning of this judgment shows that for a few years there has been
instability in the office of NDPP and, therefore, in the leadership of the NPA. With the court
challenge to Mr Nxasana’s vacation of office and to the appointment of Advocate Abrahams,
that instability persists to this day. The second judgment accepts – correctly – that it would be
open to the President to initiate an inquiry into whether the manner in which Mr Nxasana
vacated office renders him unfit to hold office. The order proposed by the second judgment thus
has the effect of prolonging the instability. Surely, this unending instability is deleterious not only
to the office of NDPP, but also to the NPA as an institution. The sooner it is brought to an end
the better. In the circumstances, an order that has the potential of prolonging the instability
cannot be just and equitable. To all this, we must add the fact that Mr Nxasana is not free of
blame in the manner in which he vacated office.
[88] I next deal with Advocate Abrahams. As a point of departure, I must state that not a single
party has suggested that he is not a fit and proper person to hold office. As was to be expected,
Advocate Abrahams seeks to get a lot of mileage out of this. Must he succeed? I think not.
Former President Zuma appointed Abrahams following his unlawful removal of Mr Nxasana. That
removal was an abuse of power. Advocate Abrahams benefitted from this abuse of power. It
matters not that he may have been unaware of the abuse of power; the rule of law dictates that
the office of NDPP be cleansed of all the ills that have plagued it for the past few years. It would
therefore not be just and equitable to retain him as this would not vindicate the rule of law.
Suspension of declarations of invalidity
[89] With the exception of the declaration in respect of section 12(6), I see no need to suspend
any of the declarations of invalidity. The extent to which we are confirming the High Court’s
declaration of the invalidity of section 12(6) means the power to suspend an NDPP or Deputy
NDPP will continue in existence. Like the High Court, I think it proper to afford Parliament an
opportunity to address the shortcomings we have identified with the section. I consider a period
of 18 months’ suspension to be sufficient for this purpose.
[90] It would be downright inconsonant with the requirement of the independence of the NDPP,
the Deputy NDPP and the NPA itself for the power to suspend to continue in its present form.
For that reason, there is a need for relief that is to apply in the interim. I will not reinvent the
wheel. I am happy with the interim relief crafted by the High Court. I set it out in the order below.
Repayment of the sum of R10 240 767.47
[91] Mr Nxasana did not resist paying back the money. And nobody has suggested that he
should not. Paying back the money is a natural consequence of the declaration of constitutional

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invalidity of the manner in which Mr Nxasana vacated office. I can conceive of no reason why
repayment should not follow as a matter of course.
Appointment of a new NDPP
[92] A new NDPP must be appointed expeditiously. But the President must be afforded a
sufficient opportunity to make a suitable choice. I think 90 days is enough for that purpose.
Decisions taken and acts performed by Advocate Abrahams
[93] If 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. It is thus necessary to
appropriately preserve these acts and decisions.
ORDER

Application for confirmation of the order of the Gauteng Division of the High Court, Pretoria and
related appeals against the order of the same court:
1. The appeal of Mr Mxolisi Sandile Oliver Nxasana is upheld with no order as to costs and
Mr Nxasana’s explanatory affidavit is admitted.
2. The costs order by the High Court of South Africa, Gauteng Division, Pretoria (High Court)
against Mr Nxasana is set aside.
3. The appeal of Advocate Shaun Kevin Abrahams and the National Prosecuting Authority is
dismissed with costs, including the costs of two counsel.
4. The declaration by the High Court that the settlement agreement dated 14 May 2015 concluded
by former President Jacob Gedleyihlekisa Zuma, the Minister of Justice and Correctional
Services and Mr Nxasana in terms of which Mr Nxasana’s incumbency as the National
Director of Public Prosecutions (NDPP) was terminated is constitutionally invalid is confirmed.
5. The declaration by the High Court that the termination of the appointment of Mr Nxasana
as NDPP is constitutionally invalid is confirmed.
6. The declaration by the High Court that the decision to authorise payment to Mr Nxasana of
an amount of R17 357 233 in terms of the settlement agreement is invalid is confirmed.
7. The declaration by the High Court that the appointment of Advocate Abrahams as NDPP
is invalid is confirmed.
8. The declaration by the High Court that section 12(4) of the National Prosecuting Authority
Act 32 of 1998 is constitutionally invalid is confirmed.
9. The declaration by the High Court that section 12(6) of the National Prosecuting Authority Act
is constitutionally invalid is confirmed only to the extent that the section permits suspension
by the President of an NDPP and Deputy NDPP for an indefinite period and without pay.

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 10. The declaration of constitutional invalidity contained in paragraph 9 is suspended for 18
months to afford Parliament an opportunity to correct the constitutional defect.
11. During the period of suspension—
(a) a section 12(6)(aA) will be inserted after section 12(6)(a) and it will read:
The period from the time the President suspends the National Director or a Deputy
National Director to the time she or he decides whether or not to remove the National
Director or Deputy National Director shall not exceed six months.
(b) section 12(6)(e) will read (insertions and deletions reflected within square brackets):
The National Director or Deputy National Director provisionally suspended from office
shall receive, for the duration of such suspension, [no salary or such salary as may be
determined by the President] [her or his full salary].
12. Should Parliament fail to correct the defect referred to in paragraph 9 within the period of
suspension, the interim relief contained in paragraph 11 will become final.
13. Decisions taken, and acts performed, by Advocate Abrahams in his official capacity will
not be invalid by reason only of the declaration of invalidity contained in paragraph 7.
14. Mr Nxasana is ordered to repay forthwith to the state the sum of R10 240 767.47.
15. The President is directed to appoint an NDPP within 90 days of the date of this order.
16. The President, the Minister of Justice and Correctional Services and the National
Prosecuting Authority are ordered to pay all costs in this Court that are additional to the
costs referred to in paragraph 3, such costs to include the costs of two counsel.
Commentary:
To uphold the rule of law – one of the most important founding values of the Constitution – what
the South African state must guarantee is a prosecuting authority that is not “malleable, corrupt
or dysfunctional”. More specifically, the prosecuting authority must exercise its powers
independently. That is, without any fear, favour or prejudice (as per section 179(4) of the
Constitution) and subject only to the Constitution and the law (in terms of section 32(1)(a) of the
National Prosecuting Authority Act). In order for these objectives to be achieved, the minimum
requirement of a National Director of Public Prosecutions is that they must be “fit and proper”.
What this means is that the person must exhibit conscientiousness and integrity. If this is the
case, the NPA’s independence will then be secured. As the Constitutional Court has previously
stated at para 146 of the Certification judgment: “[t]here is ... a constitutional guarantee of
independence, and any legislation or executive action inconsistent therewith would be subject to
constitutional control by the courts”. Recently, Yacoob ADCJ declared in the 2012 DA v
President of the Republic of South Africa case that the office of the NDPP “is located at the core
of delivering criminal justice”, meaning that a well-functioning criminal justice system is central

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to any functioning constitutional democracy. As such, if you subvert the criminal justice system,
you subvert the rule of law and constitutional democracy itself. Unsurprisingly, the NPA Act
proscribes improper interference with the performance of prosecutorial duties. Section 32(1)(b)
of the NPA Act provides: “Subject to the Constitution and this Act, no organ of state and no
member or employee of an organ of state nor any other person shall improperly interfere with,
hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out
or performance of its, his or her powers, duties and functions.”
A prosecuting authority that is corrupt, malleable and dysfunctional would be susceptible to
political interference and nefarious political agendas, with criminals (especially those holding
positions of influence) never answering for their criminal deeds. Such a situation is
contemptuous of the rule of law, but it characterises the South African prosecuting authority for
the last decade at least. Moreover, this dysfunction has rendered the National Prosecuting
Authority paralysed by instability. In relatively quick succession, National Directors of Public
Prosecutions have been appointed. None of them completed the stipulated 10-year tenure. Vusi
Pikoli was succeeded by Menzi Simelane, who was succeeded by Mxolisi Nxasana, who was
replaced by Shaun Abrahams. The matter of Justice Alliance v President of the Republic of
South Africa (2011) established that security of tenure is an integral part of ensuring
independence. Although that matter concerned the independence of the judiciary, the principle
is analogous to the prosecuting authority.
The Corruption Watch/Nxasana matter relates to former President Jacob Zuma’s removal of Mr
Nxasana from office. Interestingly, this coincided with the acrimony that had developed between
Nxasana and Advocate Jiba, the former Acting NDPP, and Advocate Mrwebi, the former
Special Director: Specialised Commercial Crime Unit.
By way of a process calculated to remove Nxasana from office, Zuma threatened to institute an
inquiry to establish whether Nxasana was “fit and proper” to hold office. The threat was based
on Nxasana’s previous criminal conviction for “violent conduct”; allegedly unbecoming and
divisive comments which had the effect of bringing the NPA into disrepute made by Mr Nxasana
and reported in the media; and alleged non-disclosure of facts and circumstances of
prosecutions which Mr Nxasana had faced previously. Indeed, section 12(6)(a)(iv) of the NPA
Act does permit the President to remove an NDPP from office if the NDPP is no longer a fit and
proper person to hold office. In para 25 of the judgment, Madlanga states it thus: “Zuma was
bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach
that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a
carrot”. In para 10 of the judgment, it is recorded that this approach played out as follows: the
commission of inquiry was set to commence on 11 May 2015. Parallel with this inquiry process,
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however, Zuma’s legal adviser, Mr Hulley made a promise that Mr Nxasana would be paid a
settlement amount from public coffers. Over time that amount increased progressively. An
earlier offer contained in a draft settlement agreement was R10 million. Mr Nxasana did not
accept it. Former President Zuma was undeterred. Thereafter Mr Hulley sent Mr Nxasana
another draft settlement agreement with the amount left blank for Mr Nxasana to fill it in himself.
Ultimately, the commission hearing never commenced as settlement was eventually reached. Mr
Nxasana signed the settlement agreement on 9 May 2015. In terms of the agreement
Mr Nxasana would relinquish his position as NDPP and receive a sum of R17.3 million as a
settlement payment. As Madlanga eloquently states at para 28, “The inference is inescapable
that [Zuma] was effectively buying Mr Nxasana out of office. … conduct of that nature
compromises the independence of the office of NDPP.” Mr Nxasana was paid an amount of
R10 240 767.47. The rest was retained by the state for income tax. Evident from this scenario is
that Nxasana did not vacate office voluntarily (as regulated by section 12(8) of the NPA Act).
The Constitutional Court was thus obliged to decide whether the settlement agreement and,
therefore, Mr Nxasana’s vacation of the office of NDPP were constitutionally valid; whether Mr
Nxasana should be required to repay the R17.3 million settlement payout; and whether the
appointment of Advocate Abrahams as NDPP was constitutionally invalid. In addition, the Court
had to determine whether section 12(4) and (6) of the NPA Act were constitutionally invalid.

The majority of the Court concluded that the settlement agreement; Nxasana’s vacation of office
and the payment of R17.3 million were all constitutionally invalid and violated the required
independence of the office of the NDPP. Consequently, Abrahams’s appointment was also
constitutionally invalid. Nxasana’s removal was invalid for the fact that in terms of section
12(6)(b) of the NPA Act, it is Parliament (as part of its role of ensuring accountability on the part
of the executive and representing the people) that must resolve to remove an NDPP.
Para 88 of the judgment is especially pertinent: Former President Zuma appointed
Advocate Abrahams following his unlawful removal of Mr Nxasana. That removal was an abuse
of power. Advocate Abrahams benefitted from this abuse of power. It matters not that he may
have been unaware of the abuse of power; the rule of law dictates that the office of NDPP be
cleansed of all the ills that have plagued it for the past few years. It would therefore not be just
and equitable to retain him as this would not vindicate the rule of law. Accordingly, the President
(Ramaphosa) was afforded 90 days to appoint a new NDPP, which he did when appointing
Shamilla Batohi. Simultaneously, Parliament was afforded 18 months within which to address
the shortcomings highlighted in section 12 of the NPA Act.

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7 TEST YOUR KNOWLEDGE QUESTIONS (WITH FEEDBACK)

Activity 1.1
1. Classify and explain the sources of constitutional law. (5)
The sources of constitutional law are divided into binding sources (these are the sources that must
be relied on and are for this reason described as authoritative) and persuasive sources as outlined
in the Study Guide.
2. Does South Africa have a flexible or inflexible constitution? Give reasons for your answer. (3)
Examine the characteristics of both flexible and inflexible constitutions and further examine sections
1 and 74 of the Constitution. It should be evident that South Africa has a mostly inflexible
Constitution because it cannot easily be amended, but at the same time, if the correct procedures
are followed, it can be amended, as evidenced by, amongst others, the Constitution Seventeenth
Amendment Act which altered the jurisdiction of the Constitutional Court.
3. Identify the basic criteria for an inflexible constitution which the court in Ex Parte Chairperson
of the Constitutional Assembly applied, and explain the meaning of constitutional entrenchment
as understood by the Court. (10)
In order to answer this question, read paragraphs 151 to 159 of the judgment which can be found at
the end of the Study Guide under ‘Sources referred to in this study guide’, as well as section 74 and
Chapter 2 of the 1996 Constitution.

One of the defining features of a state’s constitutional system is the question of whether the
Constitution is flexible or inflexible. The logic behind having an inflexible Constitution is that it would
be absurd for Parliament to have undertaken an elaborate and extended process of drafting a
Constitution if that Constitution could too easily be amended. Accordingly, the basic features of an
inflexible Constitution were articulated in the case of Ex Parte Chairperson of the Constitutional
Assembly, where the Constitutional Court had to rule on the flexibility of the Constitution. The Court
found that the provisions of the constitutional text regarding the constitutional amendment did not
comply with the 34 Constitutional Principles that had been appended to the Interim Constitution and
to which the Final Constitution had to comply. Specifically, the Court was of the view that the text of
the draft Final Constitution could potentially be amended too easily. The Court found that section 74
of the new text provided for “special majorities”, but not for “special procedures”. It, therefore, did not
comply with Constitutional Principle XV. The court found that, since the Bill of Rights was not given
more stringent protection than the rest of the Constitution, Constitutional Principle II was not
complied with. The Constitutional Assembly was therefore required to re-draft section 74 and
incorporate special procedures to be invoked when the Constitution is sought to be amended. The
amended section 74 in the final text, therefore, provides for a range of additional safeguards. This

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argument leads us to state that the 1996 Constitution is an example of an inflexible constitution
because it can only be amended when all of the stipulated requirements have been satisfactorily met.

Section 74 refers to bills amending the Constitution. It sets out the different requirements and
procedures to be followed for amendment of various provisions. This is a further indicator of the
Constitution’s inflexibility. Moreover, a higher threshold is required to amend section 1 (the Founding
Values) and Chapter 2 (the Bill of Rights) given South Africa’s colonial and apartheid history where
the human rights of the majority of the citizenry were arbitrarily violated and where the rule of law
and democracy had no meaning because the law was illegitimate. It is thus imperative that such a
situation never occurs again.

4. Are all provisions of the Constitution amended with the same majority? Give reasons. (3)
Section 74 of the Constitution provides the full answer to this question.
No, not all provisions are not amended with the same majority. For example, depending on the
provision, a supporting vote of at least 75 percent of the National Assembly or a supporting vote of
at least two thirds (66.6%) of its members will be required. This distinction is on account of the
importance of the particular provisions given that it is section 1 of the Constitution and Chapter 2 of
the Constitution where 75% of the members of the National Assembly must vote in favour of the
amendment, thereby ensuring that these provisions cannot be amended too easily.

5. Why is a greater majority required to amend certain provisions of the Constitution, such as
section 1? (2)
Recall the importance of certain provisions as being central to the foundation of the state.
It is necessary to emphasise that this is necessary to prevent any abuse of power, especially since
we have a Parliament where the African National Congress holds a clear majority and could
arguably seek to amend the Constitution at will. A higher threshold is required to amend section 1
(the Founding Values) and Chapter 2 (the Bill of Rights) given South Africa’s colonial and apartheid
history where the human rights of the majority of the citizenry were arbitrarily violated and where the
rule of law had no meaning because the law was illegitimate. It is thus imperative that such a
situation never occurs again.
6. What special procedures are in place to prevent parliament from amending the Constitution
without giving the matter due consideration? (5)
Examine the provisions of sections 74(4)–(8) of the Constitution.
Stringent measures are in place to guarantee that the Constitution is not amended without adequate
consideration having been given to the matter. The first requirement is that any Bill purporting to
amend the Constitution must exclusively contain the proposed amendment. Secondly, a full 30 days’
notice period must be given so that all Members of Parliament have an opportunity to acquaint
themselves with the terms of the proposed amendment prior to the date upon which it is introduced

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in Parliament. In addition, the proposed amendment must be widely publicized, in that it must be
published in the Government Gazette and be made available for public comment thereon. Each of
the 9 provincial legislatures must also be afforded an opportunity to give input on the proposed
amendment. Importantly, the National Council of Provinces, although it represents each of the 9
provincial legislatures, must debate the proposed amendment fully and vote thereon to determine
whether the Bill is passed by the National Council of Provinces or not. Should a Bill refer only to a
specific province then it is imperative that the National Council of Provinces passes the Bill before it
can be voted upon by the National Assembly. Furthermore, to ensure openness, transparency and
accountability as stipulated in section 1(d) of the Constitution, all written comments pertaining to the
Bill must also be furnished to the Speaker of the National Assembly so that these can also be
deliberated. It is important to emphasise that a full 30 day must lapse after the Bill has been
introduced and before any vote thereon can take place.

Activity 1.2
1. Explain in your own words whether South Africa has a supreme Constitution. (3)
Sections 1, 2 and 172(1)(a) of the Constitution will provide the answer to this question.

2. What is the relationship between constitutional supremacy and the courts’ power to test the
constitutionality of legislation? (2)
If the constitution is supreme, all law (legislation) must comply with the spirit and letter of the law.
Accordingly, courts must be able to test whether the legislation does comply or not. This is valid
action by the courts because it gives effect to the Constitution, especially section 172.

3. Are a supreme constitution and an inflexible constitution the same thing? Give reasons. (5)
The easiest way of answering such questions is to define both concepts separately. This means that
in your answer you will define what is meant by a supreme constitution and what is meant by an
inflexible question. As soon as that is done, you then proceed to answer whether the concepts mean
the same thing or not. Then proceed to give examples of each, which will justify your answers.

For example, a supreme Constitution refers to the supreme law of the country and the Constitutional
Court (and the High Court) has the power to declare legislation unconstitutional when the legislature
acts in violation of the Bill of Rights. Refer to Section 1(c); section 2 and section 172(1) of the
Constitution. The concept inflexibility refers to the difficulty of amending a constitution. Therefore, if
a constitution is inflexible it requires special amendment procedures (eg a two week notice period)
and special amendment majorities (eg a two-thirds majority) before they can be amended. An
inflexible constitution can therefore not be amended in the same manner as ordinary legislation.
Therefore, a supreme constitution and an inflexible constitution are not the same thing. E.g the 1996
constitution of South Africa is an inflexible constitution, the South African Constitution 32 of 1961
was a flexible constitution.

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4. Distinguish between an allochthonous and an autochthonous constitution. Give examples. (5)
As in question 3, both concepts must be defined separately as discussed in the Study Guide.
Activity 2.1
Study section 2.2 Constitutionalism in chapter 2 (pages 38–60 of the prescribed textbook) and
answer the following questions:
1. Are the following statements true or false? Give reasons for your answers.
a) South African constitutionalism is only descriptive and normative in nature. (5)
The following can be identified as the core elements of constitutionalism:
i) the recognition and protection of fundamental rights and freedoms;
ii) the separation of powers;
iii) an independent judiciary;
iv) the review of the constitutionality of laws;
v) the control of the amendment of the constitution; and
vi) Institutions that support democracy
vii) multi-party democracy.
One could even add to the above list the use of the presidential term limits as a means of restraining
the powers of the president. Therefore, it should be evident that constitutionalism is not merely
descriptive; it is prescriptive as well.
b) “Constitutionalism” is a system of government where the will of a single person prevails. (5)
Based on the elements of constitutionalism set out above, this answer should be clear.
c) A supreme constitution is not a prerequisite for constitutionalism. (5)
While a supreme constitution would certainly facilitate protection of the core elements of
constitutionalism, it is not essential (a prerequisite) because there may be other methods by which
amendments to the constitution could be controlled or the other tenets protected and upheld. In
addition, fundamental rights and freedoms might not even be contained in the constitution. In the
United Kingdom, for example, which regards itself as a constitutional state, there is not even a
written constitution. Instead, the constitution is contained in a variety of different documents and
case law. Moreover, fundamental rights are contained in a different piece of legislation altogether,
but we would still say that the UK is characterized by the notion of constitutionalism. Possibly most
important is the fact that many African countries have modeled their constitutions on the UK
constitution, which places specific emphasis on Parliamentary supremacy (which is the very
antithesis of a supreme constitution because the two are diametrically opposed) yet they will still
maintain that their systems are characterized by constitutionalism. Therefore, no, a supreme
constitution is not a prerequisite for constitutionalism. To quote Professor Fombad of the University
of Pretoria, “The philosophy behind constitutionalism is the need to design constitutions that are not
merely programmatic; shams or ornamental documents that could be easily manipulated by

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politicians but rather documents that could promote respect for the rule of law and democracy”. This
can be interpreted as follows: a supreme constitution is desirable, but not imperative. As long as the
constitution gives effect to the rule of law and democracy, that should be sufficient.

2. Study section 2.2.5.2 of the prescribed textbook and then answer the following question:
Solly, a Grade 8 learner must make an oral presentation at his school on the 1996 Constitution,
and specifically the values on which the Constitution is based. He asks you for advice. (5)
Examine the preamble; section 1, 9, 36, 39 and 172 of the Constitution.
Activity 2.2
1. Briefly explain what you understand by the separation-of-powers principle. (3)
Refer to the textbook and Study Guide.
2. Study section 2.3.3 and then answer the following question:
Discuss the model of separation of powers that the Constitutional Court advanced in De Lange
v Smuts. (5)

3. Are the following statements true or false? Give reasons for your answers.
a) There is a universal model of separation of powers. (5)
False. For instance, South Africa has carved its own distinct design of separation of powers. It has
adopted a hybrid between a parliamentary and presidential system of separation of powers. Our
Constitution has opted for a model which encourages a relationship between the legislative and the
executive branches of government, which is clear from an analysis of the following sections in the
1996 Constitution:
• section 86(1), which provides that the President is elected by the National Assembly (which is
one of the two houses of Parliament) from among its members at its first sitting after elections
• section 89, which provides that the National Assembly may remove the President from office,
on a vote of at least two-thirds of its members and only on the grounds of: (a) a serious
violation of the Constitution or the law; (b) serious misconduct; and (c) inability to perform the
functions of office
• Section 85(2)(d), which provides that the Cabinet may prepare and initiate legislation that is
then introduced either in the National Assembly or the National Council of Provinces for
debate and passing.
• Further refer to the answer given in (b) below.

b) In the case of In re Certification of the Constitution of the Republic of South Africa, 1996,
the Constitutional Court was satisfied that the separation of powers was firmly
established in the South African Constitution. (5)

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True. In this case, the Constitutional Court was satisfied that the doctrine of separation of powers
was firmly established in the South African Constitution. In arriving at this conclusion, the Court
reasoned that:
[t]here is no universal model of separation of powers and in a democratic system of government in
which checks and balances result in the imposition of restraints by one branch of government upon
another, there is no separation that is absolute. 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 unnecessary 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.
c) South Africa has an absolute separation of powers. (5)
False, the Courts have, on numerous occasions, recognised that the separation of powers principle
cannot be adopted in its ‘‘pure’’ form, as an absolute distinction between the three organs of state
would lead to inefficiency and inflexibility. In De Lange v Smuts the Constitutional Court stated:
[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.

4. Study section 2.3.3 and read the following passage. Then answer the question that follows:
Parliament passes a law in terms of which President Zuma is authorised to amend and repeal
the provisions of certain parliamentary legislation as well as presidential proclamations pursuant
to such legislation. Critically evaluate whether this law is constitutionally valid in the context of
the separation-of-powers principle. (10)
Keep in mind the four tenets of the separation-of-powers doctrine when answering this question:
• Trias politica: formal separation of powers among the legislature, executive and judiciary
• Separation of personnel: one person or organ of state cannot perform functions in multiple
branches of government
• Separation of functions: prevents usurpation of powers and functions by other branches of
government
• Checks and balances: each organ has special powers to keep an eye on other organs of state
Activity 2.3
1. Critically discuss whether the legitimacy of judicial review is jeopardised by its counter-
majoritarian features. (10)
Refer to paragraph 2.3.4 of page 72 in the textbook as well as from page 15 of the Study Guide. The
information given there is enough to enable you to answer this question. See the explanation of the
separation of powers and counter majoritarian dilemma directly above.
2. In a recent Business Day newspaper article, Professor George Devenish considered the
counter-majoritarian dilemma in the South African context. In doing so, he examined the 1996

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Constitutional Court judgment in Executive Council of the Western Cape Legislature v President
of the Republic of SA 1995 (4) SA 877 (CC), in which the Constitutional Court used its testing
right and invalidated a law of the democratic parliament. According to Devenish
the Constitutional Court, headed by Judge Chaskalson, in a carefully worded and judiciously reasoned
judgment, invalidated the President’s proclamation and Parliament’s amendment of the Local
Government Transition Act.
Devenish continued his analysis by stating that President Mandela responded with
characteristic statesmanship in praising the judgment and observing that “this judgment is not
the first, nor the last, in which the Constitutional Court assists both the government and society
to ensure constitutionality and effective governance”. Devenish says that this case was a victory
for constitutional government, “since for the first time the Constitutional Court had invalidated a
highly politicised statute, passed by a democratically elected and legitimate Parliament”.

It is accepted that the epitome of constitutional democracy in action is judicial review, despite
the fact that it is perceived as being undemocratic. Discuss what is meant by the phrase
“counter-majoritarian dilemma” and indicate whether or not it is undemocratic for the courts in
South Africa to review action taken by the legislature. (10)
The relationship between a supreme constitution and the court's testing power is that when a
constitution is supreme, ALL law and ALL conduct must comply with it and if it does not comply, it
MUST be declared invalid. We, the South African people, chose to give our courts this testing power
when our representatives drafted the Interim and Final Constitutions in the early 1990s and
provisions were included such as section 172 which obliges the courts to declare law invalid.
Accordingly, the testing power of the courts reinforces the supremacy of the Constitution and
ensures that it remains supreme and that all laws are compatible with it.

The case of De Lange v Smuts NO is very important for our understanding of the unique and special
form that the separation of powers doctrine takes in South Africa. What the court held is:
… over time our courts will develop a distinctively South African model of separation of powers, one that
fits the particular system of government provided for in the Constitution and that reflects a delicate
balancing, informed both by South Africa’s history and its new dispensation, between the need, on the
one hand, to control government by separating powers and enforcing checks and balances, and, on the
other, to avoid diffusing power so completely that the government is unable to take timely measure in
the public interest.

What this essentially means is that the Constitution itself does not prescribe a specific, fixed form of
the separation of powers doctrine. Instead, each case must be assessed on its own merits and
guidelines can be developed over time as to the best method of ensuring that each of the 3 principal
organs of state (legislature, executive, judiciary) retain their particular areas of power and expertise,
but at the same time (as the counter-majoritarian dilemma has taught us), the judiciary is entitled
and empowered to declare law or conduct invalid if it does not comply with the Constitution.
Essentially, the counter-majoritarian dilemma is where 11 judges (that is the number of judges in the

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Constitutional Court, but it may even be as little as a single judge in the High Court)) have declared
a law invalid, but that law that they have declared invalid is a law that was passed by 400
Parliamentarians who had all assumed their positions in Parliament because we, the people had
voted for the political party to which they belong, and they represent that political party and thus,
they represent us and have been mandated by us to pass laws in our interests. Thus, on the face of
it, it appears undemocratic whereas it is not undemocratic because it is specifically permitted in the
Constitution (in section 172).

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

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

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Activity 2.4
1. Are the following statements true or false? Give reasons for your answers.
a) The rule of law is enshrined as a founding value in the Constitution. (3)
b) In Fedsure Life Assurance, the Court held that the principle of legality as an incidence of
the rule of law is not what determines whether public bodies act lawfully or not. (6)
Refer to the Fedsure case.
2. Explain the relationship between constitutionalism and the rule of law.
To answer, you must first define the two concepts and then identify the relationship. (10)
3. Briefly discuss the importance of the judiciary within a constitutional state premised on the
rule of law. (6)
To answer this question, you must first ensure that you know the definitions of a constitutional state,
the rule of law and then you can proceed to answer with regards to the importance of the judiciary
within a constitutional state premised on the rule of law.
Activity 2.5
Study section 2.5 on pages 85 to 97 of the prescribed textbook and then answer the questions
that follow:

The Republic of Matata has split as a result of the years of violence between the major ethnic
tribes. The Makali tribe in the south of the Matata Republic has declared itself an independent
country called the Republic of No-Nonsense, with a population of 1 000 000 inhabitants. This
republic is currently ruled by a military commander, General Talk at Your Own Risk.
The country has a serious water shortage and depends on the surrounding countries for water,
and on food subsidies from the neighbouring countries.
The inhabitants of the Republic of No-Nonsense are pleased with the governance of General
Talk at Your Own Risk and hope he rules forever.
1. Do you think the No-Nonsense Republic is a democratic republic?
(In your answer, explain the concept “democracy” and the types of democracy). (10)
On page 86 of the Textbook, a definition of democracy as formulated by Roux is provided. You will
note that at its essence, democracy entails those decisions taken which affect a political community
are to be taken by the members themselves in order to satisfy the requirement of such decision-
making being democratic. Moreover, the definition provides another option, which is that democracy
is also characterised by decisions being made by elected representatives. From the facts that you
are presented with it appears quite clear that there is no democracy in the Republic of No-
Nonsense, because General Talk A Lot has appointed himself as the leader and no elections have
taken place.

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Since this type of question is out of 10 marks you then need to go into more detail about the concept
of democracy as well as explain the 4 types of democracy discussed in the Textbook. When doing
so you can apply the facts you’ve been presented with to the relevant types. For example, since
direct democracy entails direct participation, you should point out that given that the Republic of No-
Nonsense is composed of 1 000 000 inhabitants, it is impossible for direct democracy to occur. You
should then focus on representative democracy and highlight the fact that even though the
inhabitants of No-Nonsense Republic are happy with General Talk A Lot, that doesn’t mean that he
can rule forever, because elections should be held regularly to ensure that the leadership truly
represents the interests of the people. It also appears from the facts that there is no participation in
decision-making, thus you can indicate that participatory democracy is not present in the Republic of
No-Nonsense. You could also mention that there does not appear to be a Constitution in the
Republic of No-Nonsense, so it is highly unlikely that there is a constitutional democracy operating
in that state.

2. Your friend Vitumbuwa argues that the people of the No-Nonsense Republic are pleased with
the way the government is run by General Talk at Your Own Risk. Vitumbuwa further argues
that, since democracy focuses on the interests of the people, the No-Nonsense Republic
qualifies as a democratic state. Advise Vitumbuwa on the principles that are indispensable to a
democratic country. (5)
3. Distinguish between direct and representative democracy. (4)
4. Does the newly formed Republic of No-Nonsense qualify as a state? (5)
To answer this question, you must list the characteristics of a state. In addition to listing the
characteristics of a state, you should apply the facts to the characteristics. The only ‘problematic’
requirement is (5: sovereign political status). It would be preferable to state that the Republic of No-
Nonsense does qualify as a state. The notion of sovereign political status means that that state is
autonomous when it comes to making decisions that affects it. The fact that the Republic of No-
Nonsense has declared itself independent indicates that it is sovereign. Sovereign political status
entails that a state can determine its own political (as well as socio-economical/religious/linguistic)
system. The Republic of No-Nonsense still qualifies as a state despite the fact that it relies on
neighbouring countries for water and food. Many states rely on their neighbours for such things as
water and they still remain sovereign. For example, South Africa relies on Lesotho for water,
Mozambique for gas, etc.
Activity 2.6
Distinguish between a presidential system of government and a parliamentary system of
government. (6)

Activity 3.1

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Loud Speaker is a member of the Talk-a-Lot political party. During one of the parliamentary
sessions, she became so enraged with the conduct of members of other political parties that
she accused certain members of the Freak-a-Zoid party of being spies and criminals. Pursuant
to her outburst, she was suspended for 15 days by parliament. Loud Speaker is furious about
her suspension and claims that parliament has violated a number of her fundamental rights.
You have been approached by Loud Speaker to provide a well-reasoned, substantiated and
critical evaluation of whether Loud Speaker’s suspension is constitutional or not. Loud Speaker
is seeking specific advice on the extent to which parliament can regulate its own internal
procedures, and whether parliament acted according to the prescripts of the Constitution or
whether it exceeded the powers conferred on it in terms of sections 57 and 58 of the
Constitution. Ultimately, Loud Speaker wishes to know whether the courts will interfere with the
conduct of parliament if it is found that parliament did not act in accordance with the provisions
of the Constitution. (15)
It is easy to see that this question is based on the case of de Lille and Another v Speaker of the
National Assembly 1998 (3) SA 430 (C). You must answer the question using the analogy of the de
Lille case and using the actual de Lille case as support for your answer.

A recent development in this regard is the March 2016 decision in the case of DA v Speaker of the
National Assembly 2016 (5) BCLR 577 (CC); 2016 (3) SA 487 (CC). The State of the Nation Address
delivered by former President Jacob Zuma at a joint session of the two Houses of Parliament on
12 February 2015, was disrupted by members of Parliament representing the Economic Freedom
Fighters (EFF). A mere four minutes in to the President’s address, a member of the EFF rose on a
point of privilege, stating ‘may we ask the President when he is going to pay back the money in
terms of what the Public Protector has said … will he pay by EFT, cash or e-wallet?’. This question
was repeated by other members of the EFF. When the fourth member asked the same question, the
Speaker asked the Sergeant at Arms and Protection Service Officers to remove those members
from Parliament in terms of section 11 of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act (para 6 of the judgment). The forcible removal of EFF members ensued.

The separation of powers doctrine dictates that members of the executive branch may not intrude
into the domain of the legislative branch (Parliament). Therefore, the parliamentary leader of the
Democratic Alliance (DA) asked the Speaker whether members of the South African Police Service
(part of the executive branch of the state) had been involved in removing the members of the EFF.
The Speaker confirmed that the police were involved in the removal (para 7 of the judgment).
Consequently, the DA sought an order from the High Court that the forced removal was
unconstitutional as it violated the separation of powers doctrine.

The DA’s case rested on the argument that section 11 is constitutionally invalid. Specifically, they
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argued that section 11 impermissibly curtails a member’s privilege of free speech in Parliament by
providing for the arrest and removal of members of Parliament who create or take part in a
disturbance (para 4). At essence, the DA requested a reading in so that section 11 is only applicable
to people who are not members of Parliament.

The High Court found that section 11 was defective and constitutionally invalid ‘to the extent that it
permits a member to be arrested for conduct that is protected by sections 58(1)(b) and 71(1)(b) of
the Constitution’. It ordered notional severance, suspending the order of constitutional invalidity for a
period of 12 months to afford Parliament an opportunity to remedy the defect (para 9). When the matter
was before the Constitutional Court for confirmation proceedings, the Court held, inter alia, that:
for Parliament properly to exercise its oversight function over the Executive, it must operate in an
environment that guarantees members freedom from arrest, detention, prosecution or harassment of
whatever nature. Absent this freedom, Parliament may be cowed, with the result that oversight over the
Executive may be illusory (para 17).

The Constitutional Court arrived at the conclusion that section 11 did limit the privileges and
immunities contained in sections 58(1) and 71(1) of the Constitution (para 39) and was invalid
because it applied to members of Parliament (para 52). To remedy the defect, the Constitutional
Court read in the words ‘other than a member’ after the word ‘person’ to ensure that the section
does not apply to members of Parliament (para 60).

Activity 3.2
Summarise pages 119 to 122 of the textbook and explain parliament’s role in providing a forum
for the public consideration of issues. (5)
This question is obviously based on the theory concerning the legislation process as well as case
law, such as Merafong Demarcation Forum and Others v President of the Republic of South Africa
and Others; Matatiele Municipality and Others v President of the Republic of South Africa and
Others and Matatiele Municipality and Others v President of the Republic of South Africa and Others
(2) as well as Doctors for Life v Speaker of the National Assembly and Others, as read with section
59 of the Constitution.
Activity 3.3
1. Tabulate the advantages and disadvantages of the proportional system of representation. (6)
2. Compare/contrast South African and Westminster constitutionalism respectively, based on
the following criteria: constitution-making process; and accountability of the executive to
parliament. (5)
Activity 4.1
Study sections 4.5.1 to 4.5.4 of the prescribed textbook and make your own summaries of these
sections in your own words. Your summaries must cover

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• the broad functions of parliament as an institution, indicating which of the four broad functions
is parliament’s primary/principal function in accordance with the separation of powers doctrine
• parliament’s role of holding the executive accountable, with particular emphasis on the recent
decision of the Constitutional Court in Mazibuko v Sisulu and Another
• parliament’s role of maintaining oversight over the national executive and other organs of state
Activity 4.2
You are a law student involved in a street-law project. As part of your training, you are required
to present lectures to Grade 11 and 12 learners on legislative authority. You must address the
learners on the following issues:
a) In a constitutional state, where do laws originate? (3)
Refer to Chapter 4 of the Constitution
b) What is the difference between an organ of state and a sphere of government? (4)
c) What is the meaning of “legislative authority”? (4)
d) Which body exercises legislative authority in South Africa? (2)
e) What is the composition of this body?
f) Why is the composition of this body better than that of a unicameral model? (4)

Your task is to draw up a lesson plan in which you set out the most important and relevant
points pertaining to each of the questions posed above.
Activity 4.3
Study pages 150 to 155 under the heading for section 4.5.5 (Passing of legislation) in the
prescribed textbook. Then, reflect on the following statement and answer the questions:
In accordance with the doctrine of separation of powers, the law-making function in the national
sphere of government is vested in parliament.
1. Is the doctrine of separation of powers absolute? Explain. (5)
2. Who is allowed to introduce a Bill (draft legislation) in parliament? (3)
3. With reference to the provisions of the Constitution and case law, fully explain whether an
ordinary individual member of the National Assembly who is not a cabinet member can
introduce a Bill in the National Assembly. (10)
Read page 152 onwards of the textbook to answer this question.
4. Does it make any difference whether an ordinary individual member of the National
Assembly who is not a cabinet member is a member of the majority ruling party or a
member of an opposition party? (6)
5. What are the important reasons why legislation is initiated and prepared by the executive
(usually a cabinet member responsible for a particular portfolio, e.g. education, will initiate a

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 Bill on education) rather than by an ordinary individual member of parliament or a committee
of the National Assembly? (8)
Activity 4.4
Study sections 74, 75, 76 and 79 of the Constitution and pages 155 to 163 of the prescribed
textbook and then answer the following questions:
1. After studying section 74 two or three times, summarise its contents. In your summary, make
sure that you discuss the following matters:
a) the majorities required to amend different parts of the Constitution examine section 74(1)–
(3) of the Constitution
b) the special procedures required to prevent parliament from amending the Constitution
without careful consideration. (10)
Examine section 74(4)–(8) of the Constitution
2. You are a law student at Unisa. After you graduate, you would like to pursue a career as a
legislative drafter (i.e. one who is involved in the creation of laws that regulate the conduct of
people). You can begin this training by doing the following:
a) explaining what you understand by legislative authority (3)
b) distinguishing between the exclusive and concurrent legislative capacity of parliament (4)
c) defining what is meant by “the legislative process” (3)
d) describing the general process that takes place before a law is formulated and
adopted by the competent legislative authority (10)
Refer to figure 4.3 (page 156 of textbook) that outlines a summary of the law making process. As
you will see, of the 10 steps (each step is numbered consecutively to illustrate this) in the legislative
process (which one would think should all be conducted by the legislature), some of those steps are
actually performed by the executive and even the judiciary!

*Legislature Executive Judiciary

The NA is composed of 400 De Lille v Speaker of the National
representatives elected by the electorate. Assembly: the citizenry must be
Based on our closed-list proportional properly represented in the working of
representation electoral system, the the National Assembly. Suspension of
members of the NA represent all of the a member is for contempt
political parties that reached the required unconstitutional.
threshold of votes, in proportion to the
overall number of seats. As a multi-party In DA v Speaker of the National
democracy, all political parties play a role Assembly (decision of 20 March 2016),
in Parliament. the Court held that members of
Parliament may not be arrested and
removed from Parliament even if they
s86(1): at its first sitting the NA elects the create a disturbance in the
President from among its members. Parliamentary precinct or committees.
As soon as the President is elected he
ceases to be a member of the NA and
then assumes the role of Head of the
Executive. He also becomes the Head
of State at that time.

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As Head of State, the President is President of the Republic of South

responsible for performing the duties Africa v Hugo is an example of the
set out in s84(2), such as pardoning exercise of a Head of State power.
prisoners. Presidential powers have always been
reviewable (President of South Africa v
1] Policy is formulated (s85(2)(b)) via SARFU)
various channels, including through
Nedlac, internal party discussions as
well as consultation with
affected/interested parties.

2] The proposed legislation is then In Oriani-Ambrosini the Constitutional

Remember that an individual MP may also discussed in a Green Paper. Public Court decided that the rules of the
introduce legislation (Oriani-Ambrosini hearings are held on the matter. National Assembly were
case) unconstitutional because they did not
3] A White Paper is prepared and allow ordinary MPs to introduce
public hearings are held concerning the legislation.
proposed legislation.

4] A draft of the Bill as well as an

explanatory memorandum is prepared
by the Minister responsible for the
issue (in terms of s85(2)(d)). Cabinet In Executive Council, Western Cape
then approves it. Legislature v President of South Africa
it was held that it is not acceptable for
5] Once Cabinet has approved the draft the legislature to assign its lawmaking
Bill, the state law advisers certify that functions to the executive.
the law is constitutional before it is
submitted to Parliament.

6] The Cabinet Minister responsible for the

Bill (eg: education) usually first introduces
the Bill in the National Assembly (or the
National Council of Provinces). This is the
first reading. In Doctors for Life, Matatiele
Municipality v President of the Republic
7] The Bill is referred to the appropriate of South Africa and Merafong it was
portfolio committee for review and held that Parliament must take
amendment after facilitation of public reasonable steps to facilitate public
involvement (s59). This is the second involvement in the law-making process
reading. and that without ensuring public
participation, the legislation is fatally
8] If the National Assembly passes the Bill, flawed because the correct procedure
it is forwarded to the National Council of was not followed.
Provinces for its assent.
In Glenister 1 (2009), it was held that
9] If the Bill was approved by the National the judiciary may not intervened in the
Council of Provinces, it is forwarded to the legislative process until the legislature
National Assembly for its assent. has completed the drafting of the law
(unless there is no other effective
10] Once both Houses of Parliament have remedy and harm caused would be
passed the Bill, it is presented to the material and irreversible).
President for signature (s84(2)(a)).
However, if the President is not convinced As you will note in s84(2)(c), if after
that the Bill is Constitutional, he may refer referring the Bill back to the National
it back to the National Assembly for Assembly, the President is still not
reconsideration (s85(2(b)). The President satisfied as to the constitutionality of a
signs the law in his capacity as Head of Bill he may refer it to the Constitutional
State, not Head of Executive. Court. (Ex Parte President of the
Republic: In re: Constitutionality of the
Liquor Bill)
Once the legislation has been passed,
the executive must implement it
(s85(2)(a)).

Activity 4.5

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In Ex Parte the President of the RSA: In re Constitutionality of the Liquor Bill 2000 (1) BCLR 1
(CC), paragraph 27, the Constitutional Court stated that “any Bill whose provisions in substantial
measure fall within a functional area listed in Schedule 4 [must] be dealt with under section 76”.
This was confirmed in Tongoane and Others v National Minister for Agriculture and Land Affairs
and Others (and subsequently, in Land Access Movement of South Africa and Others v
Chairperson of the National Council of Provinces and Others (“LAMOSA”) [2016] ZACC 22.

Study Tongoane and Others v National Minister for Agriculture and Land Affairs and Others on
pages 157 to 160 of the prescribed textbook and then answer the following questions:
1. Explain the importance of tagging. (5)
2. Explain the distinction between the characterisation of a Bill for purposes of deciding whether
the Bill affects the provinces or not, and its tagging. (5)
3. Explain the test for the tagging of Bills. (10)
All the information you need is contained on pages 157-161 of the textbook.
Activity 4.6
Study section 79 of the Constitution, pages 162 to 163 of the prescribed textbook, and
paragraphs 1–2, 6, 10–16 and 20 of the Liquor Bill decision and then answer the questions:
1. State the three ways in which the constitutionality of legislation passed by parliament can
come under judicial consideration. (6)
2. What were the three main questions the Court considered in this part of the judgment? (6)
3. Briefly summarise the Court’s findings in relation to these three questions. (10)
You have to refer to the relevant case (as well as specific paragraphs where necessary).
Activity 4.7
Study section 4.5.6 on pages 163 to 167 of the prescribed textbook and then answer the
questions that follow:
It is universally accepted in modern democracies that parliament cannot attend to every single
task that it is enjoined to perform, particularly when it comes to making laws aimed at regulating
the conduct of its subjects. Parliament cannot foresee every single occurrence that may require
regulation and usually, therefore, drafts laws in skeletal form. In the light of this statement,
briefly discuss, with specific reference to case law, what you understand by the term “delegation
of legislative authority”, and discuss whether or not parliament may delegate its functions to
(a) the executive (10)
(b) a provincial legislature (5)
Consider the following points when answering this question:
• What do you understand by the term “delegation” in the constitutional sense of the word?
• Why do you think delegation is important?

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• Which case dealt with the issue of delegation?

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

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

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

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

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Since a provincial legislature has constitutional powers to adopt legislation, it is permissible for the
national legislature to delegate its law-making powers to a provincial legislature.

Activity 5.1
Study section 5.1 on pages 171 to 173 of the prescribed textbook and then answer the questions:
1. Explain the doctrine of separation of powers and checks and balances. (5)
2. Distinguish between the executive authority and public administration. (5)
Activity 5.2
Study section 5.2.1 of the prescribed textbook and sections 86, 87, 88, 89, 90 and 102(2) of the
Constitution and then answer the questions that follow:
1. Who elects the president in South Africa? (5)
For this question all of the information you require is contained in the Textbook on page 173.
2. When is the president elected? (2)
For this question all of the information you require is contained in the Textbook on page 173.
3. Who presides over the election of the president and what is the impact of this on separation
of powers? (5)
For question 3 the information you require is on page 174. You also need to be able to discuss the
relevant cases in order to substantiate your answer and illustrate your understanding.
4. Explain who is empowered to remove the president and in what circumstances the president
may be removed from office. (10)
Sections 89 and 102 of the Constitution are relevant here.
5. Can a ruling political party constitutionally remove or “recall” the president? (6)
This issue is dealt with on page 176-177.
6. Who may act as a president and in what circumstances? (5)
Activity 5.3
Study section 5.2.3 on pages 182 to 194 on the limits on the exercise of presidential powers
and make a comprehensive summary of these limits. Pay particular attention to all cases
discussed in this section.
In addition, study the judgment of President of the RSA v South African Rugby Football Union
(SARFU) 1999 (10) BCLR 1059 and then answer the following questions:
1. Explain the principle that the president is required to take personal responsibility for the
powers conferred upon him or her and whether he/she can abdicate his/her responsibility in
this regard. (5)
2. Explain whether, in the SARFU case the president was held to have abdicated his
responsibility. (6)

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3. At paragraph 352 in the SARFU case, Moseneke indicates the importance of the president’s
presence in court, stating that it was
[a] symbolic and important act because it underscored the rule of law and the principle that we are all
equal before the law and it is the Constitution that requires us to obey, respect and support the Courts not
because the judges are important or entitled to special deference but because the institution they serve in
has been chosen by us collectively in order to protect the very vital interests of all and in particular of
those who are likely to fall foul of wielders of public or private power.

In light of this, explain whether (and the circumstances in which) the president can be ordered to
give evidence in a civil matter in relation to the performance of his or her official duties.
Legislature
The President and Cabinet are
accountable to Parliament for the
exercise of their powers and
performance of their functions
(s92(2)). This occurs on occasions
such as the ‘State of the Nation
Address’ held early each year
where the President accounts to
Parliament and details the
government’s priorities for the
forthcoming year.
The Public Protector, and other
Chapter 9 institutions must also
report to Parliament on their
activities. Moreover, the report by
the Public Protector must be
submitted to Parliament and
Parliament must implement the
recommendations.
(8)
*Executive Judiciary
Within five days of being elected, the
President must assume office by swearing Para 116 of Ex Parte Chairperson of the
or affirming faithfulness to the Republic Constitutional Assembly: In re:
and obedience to the Constitution. Certification of the Constitution (1996):
“The President derives powers not from
antiquity but from the Constitution itself
that proclaims its own supremacy.
Should the exercise of the power in any
particular instance be such as to
As Head of the Executive, the President is undermine it, that conduct would be
responsible for appointing his Cabinet reviewable”.
(Deputy President and Ministers);
reshuffling; and dismissing Cabinet In DA v President of the Republic of
(s91(2)). South Africa (4 May 2017, concerning an
order that the President must provide the
information and reasons for his Cabinet
reshuffle of 30 March 2017, thus
removing Gordhan and Jonas) it was
highlighted that the judiciary is
Together with Cabinet, the President co- empowered to hold the President
ordinates the functions of state accountable and to ensure that he
departments and administrations adheres to the rule of law (s1, s2, s83(b),
(s85(2)(c); performing any other executive s172(1)(a) and (b)), because the
function provided in the Constitution or law President must act rationally and validly
(s85(2)(e)); appointing judges (s174); when performing his duties.
designating persons to the Judicial Service
Commission (s178(1)(j)); appointing the In DA v President of the Republic of
National Director of Public Prosecutions South Africa (2012), Menzi Simelane’s
(NDPP) (s179(1)(a); the Public Protector appointment as the NDPP was declared
(s193(4)); the Auditor-General (s193(4)); unlawful.
and members of the Human Rights
Commission; Commission for Gender
Equality; Electoral Commission
(s193(4)(a-c); appoint commissioners to
the Public Service Commission
(s196(7)(a)); the National Commissioner of
the police service (s207(1)); head of the
National Intelligence Agency (NIA) In Masethla v President of the Republic
(s209(2)), etc. of South Africa, it was held that the
President has executive power to appoint
and dismiss the head of the NIA.
In EFF v Speaker of the National
Assembly, it was held that decisions of
the Public Protector (even when they
implicate the President) are binding and
must be complied with.

The Cabinet members are supposed to be
appointed based on their expertise,
qualifications and ability to execute their
duties effectively. They must then be
responsible and held accountable for
failure to perform their duties.
In this regard, the ‘SASSA’ case of 17
March 2017 is relevant: the Minister of
Social Welfare had failed to ensure that a
new contract had been entered into with
a service provider to pay social welfare
grants since the previous contract was

275

The executive also includes the executive
in the provincial and local spheres.
unlawful. The court required the Minister
to provide periodic reports on progress in
obtaining a new contract to ensure that
social grants will continue to be paid into
the future.
Minister of Police v Premier of the
Western Cape: a Premier of a province
can appoint a commission of inquiry on
something related to the province.

Implementation of the law means giving See the cases of MEC for Health, KZN v
effect to the law and doing what the law Treatment Action Campaign (2002);
states in order to realise the priorities and Mazibuko v City of Johannesburg (2010);
obligations of the state. This includes Minister of Home Affairs and Another v
providing basic healthcare, such as Fourie (2006)
antiretroviral treatment to HIV+ persons;
providing sufficient water; enabling
persons to get married if they wish, etc.
Failure to do this is unconstitutional.

Activity 6.1
Is the following statement true or false? Irrespective of whether the answer is true or false, you
are required to provide a brief explanation for your answer, using appropriate authority where
necessary:
“South Africa has a very fixed or rigid separation of powers.” (2)
Activity 6.2
Is the following statement true or false? Irrespective of whether the answer is true or false, you
are required to provide a brief explanation for your answer, using appropriate authority where
necessary:
The Constitutional Court is the apex court in South Africa. (2)
Consider the impact of the Constitution Seventeenth Amendment Act.

Activity 6.3
Assume that the South African Parliament has recently adopted a new law, referred to as the
Prohibition of Racial Classification Act 102 of 2014. Section 2 of this new law reads as follows:
Effective 1 January 2015, the state shall be prohibited from classifying any individual by race. For
purposes of this section, “classifying” by race shall be defined as the act of separating, sorting or
organizing by race, and includes profiling, or collecting such data on government forms.
In passing this law, parliament affirmed that this policy would bring a definitive end to the legacy
of apartheid which was primarily based on a system of racial classification that had no place in
21st-century South Africa; would liberate all South Africans from the confining labels which the
government currently imposes; and would signal South Africa’s first step towards a truly colour-
blind society.
Many interest groups are outraged by the law and argue that the government’s inability to
collect and organise data on racial lines will have a detrimental effect on the provision of socio-
economic entitlements, especially for minority groups because these groups suffer
disproportionately from poverty, illiteracy, unemployment and ill health. It is argued that the

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inability of the government to track these disparities will prevent government from addressing
them with additional resources or targeted outreach within these communities. This is especially
true in the context of education, where the majority of learners in the rural areas are
impoverished black Africans.
One of the interest groups opposed to this new law is Social Upliftment Network (SUN). SUN
works closely with rural schools and has become aware that the funding that was originally
allocated to the rural schools has been cut dramatically since this new law was passed. The
result is that there is no longer funding to provide for the subsidised school fees and the school
feeding scheme, as well as the school uniforms that had been provided up until 30 November
2014. Consequently, Sibusiso Zulu, one of the learners at a rural school, has had to drop out of
school, as his parents cannot afford the school fees. Furthermore, since Sibusiso no longer
receives a balanced meal at school, he suffers from serious malnourishment and his parents
have had to incur medical expenses for his treatment. Unfortunately, Sibusiso is certainly not
the only learner who has been affected in this way.
In the light of the above, answer the following questions:
1. Discuss which court(s) would have jurisdiction to hear this matter. Discuss the jurisdiction of
this/these court(s) and explain which court would be the court a quo and which court(s) would
have appellate jurisdiction should the decision of the court a quo be appealed. (5)
The information you require is contained from page 212 to 223.
2. In light of the obvious prejudice which this law has already caused to Sibusiso and others in a
similar situation, describe and discuss the remedies which you would seek from a court so that
the law no longer causes such harm. Refer to relevant case law in support of your answer. (5)
Here you will obviously refer to section 172 of the Constitution and emphasise that when a law
causes prejudice to a person, and is clearly contrary to the Constitution because of its effect on
people, that law must be declared invalid by a court with jurisdiction to hear the matter. Some
reference to the separation of powers doctrine would also be appropriate because you should
emphasise that it is not the court’s place to re-write the legislation. Instead, the court will refer the
legislation back to Parliament with an instruction to amend the law.
Activity 6.4
Is the following statement true or false? Irrespective of your answer, you must provide authority
and reasons for your opinion.
“There are no restrictions on eligibility for appointment of judges to the Constitutional Court”. (4)
You must examine the requirements for the appointment of judges and check whether any of those
requirements have restrictions.
Activity 6.5

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Read the factual situation presented below and consider it in the context of the cases of Premier
of the Western Cape Province v Acting Chairperson: Judicial Service Commission and Others
2010 (8) BCLR 823 (WCC), Acting Chairperson: Judicial Service Commission and Others v
Premier of the Western Cape Province 2011 (3) SA 538 (SCA), and Freedom Under Law v
Acting Chairperson: Judicial Service Commission and Others 2011 (3) SA 549 (SCA) discussed
in your textbook on pages 230 to 243, as well as sections 165, 174 and 178 of the Constitution.
Then answer the questions which follow.

In May 2008, it was alleged that the judge president of the Cape High Court, Judge John
Hlophe, approached some of the judges of the Constitutional Court in an improper attempt to
influence this Court’s pending judgment in favour of Mr Zuma in the Zuma/Thint matter by
stating “you are our last hope; you must find in favour of our comrade”. The judges of the
Constitutional Court consequently lodged a complaint with the Judicial Service Commission
against Judge President Hlophe.

At the time that the complaint was lodged, the commission did not have the jurisdiction to hear a
matter where a judge was accused of conduct not amounting to gross misconduct, as the
provisions of the Judicial Service Commission Amendment Act, whose object, inter alia, is to
allow for inquiries into and sanctions for alleged misconduct by judges which does not constitute
gross misconduct leading to the removal of the judge from office, were yet to come into effect.

On 15 August 2009, after considering the matter and taking into account the limits of its powers,
the commission, by a majority, reached the conclusion that the evidence in respect of the
complaint did not justify a finding that Hlophe JP was guilty of gross misconduct and should
accordingly be removed from office.

In the light of what you have read above, answer the following questions:
1. Explain fully what is meant by the phrase “independence of the judiciary” and elaborate on
the qualities required of a judge. (10)
2. Explain fully how judges of the Constitutional Court are appointed. (8)
3. Discuss the mandate of the Judicial Service Commission (with brief reference to the Judicial
Service Commission Amendment Act). Briefly critique the composition of the Judicial
Service Commission in your answer, making specific reference to the composition of the
Judicial Service Commission at the time that the decision not to proceed with the inquiry
against Hlophe JP was taken in August 2009. (15)
All the information you require is contained in pages 229 to 238 of the Textbook, as well as page 47
of the Study Guide. The mandate of the JSC is to assist in the appointment of members of the
judiciary. Its other, but related, mandate is to ensure that the judiciary remains independent and

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impartial and for that reason it has the additional mandate of deciding whether or not judges should
be removed from office because they no longer have the requisite integrity or have brought the
judiciary into disrepute, etc. You must refer to the fact that the Judicial Service Amendment Act has
introduced a new tribunal to assist it to decide these kinds of matters. With respect to the part of the
question that refers to the composition of the JSC, you will notice in the paragraph which speaks to
the composition of the JSC in Study Guide that a large number of members are “political
appointments”. You can critique this by stating that that potentially impairs the independence of the
judiciary because there is too much executive interference (which is contrary to the separation of
powers doctrine). The question then goes on to require you to discuss the composition of the JSC at
the material time that the decision about Judge Hlophe was being taken. That information is from
the Premier of the Western Cape (Helen Zille) case and relates to section 178(1)(k) of the
Constitution discussed in the Study Guide.
4. Comment on the significance of the rule of law and the principle of legality and rationality
within the remit of the role of the Judicial Service Commission, providing a substantiated
opinion on whether you believe that the Judicial Service Commission arrived at the correct
decision when it declared that it had no jurisdiction to pursue the matter and that there was
insufficient evidence to warrant continuing with the inquiry. (10)
A possible starting point would be to state that all decisions of the JSC, including the appointment or
non-appointment of judges, are reviewable by court on the principle of legality and rationality (this is
discussed on page 236 of the Textbook). Furthermore, I expect you to discern from the facts
surrounding how the JSC dealt with the case against John Hlope that if the rule of law (which is the
Constitution, which states in section 178 that there shall be a JSC which is tasked with ensuring the
independence of the judiciary) dictates that the JSC must take decisive action to determine whether
a judge is impairing the perception of the independence of the judiciary, as Judge Hlophe did when
he tried to improperly influence 2 judges of the Constitutional Court in the matter concerning (now
President) Jacob Zuma, then that is what the JSC should have done. But they didn’t! They simply
swept the matter under the carpet and didn’t even ask Judge Hlophe to present his version. All of
the factual information you need is contained in the question so you must apply those facts to your
understanding of the rule of law and of the principle of legality and rationality. Surely you would have
to agree that it is not rational for the JSC to decide not to pursue the matter when there is a
legitimate complaint that has been brought by judges of the highest order and whose reputations are
beyond reproach.

Stated differently, in the Fedsure case (amongst others) it was held that the principle of legality must
be complied with, which entails that if the JSC is mandated to oversee the effective functioning of
the judiciary and if a legitimate complaint is brought to its attention concerning improper conduct by
a judge, then the JSC must take that complaint seriously (particularly if it is the Chief Justice along

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with the other 10 judges of the Constitutional Court who have made the complaint because it is
absolutely impossible that those judges would have made an unsubstantiated or illegitimate
complaint) and investigate it fully. The JSC simply closed the case without ever even calling Judge
Hlophe to present his version of events. In this regard too, the principle of rationality entails that
there must be some logical connection between what the JSC was tasked with doing (determining
whether Judge Hlophe was guilty of gross misconduct) and the conclusion that they reached. There
is no rational relationship between these two because the JSC simply disregarded the complaint
lodged by the Constitutional Court judges even though it contained ample evidence of the alleged
misconduct. This then ties in with the extremely important principle of the rule of law.

The rule of law means that if the law states a specific thing, then it must be complied with. The rule
of law also means that no one is above the law. The impression is certainly created in the way that
the JSC has gone about dealing with this matter that Judge Hlophe is "untouchable" because no
serious attempt was made to investigate the allegations against him. In fact, the gravity of the
situation is compounded by the fact that we are now exactly 9 years down the line since Judge
Hlophe allegedly tried to improperly influence the Constitutional Court judges, yet to date, nothing
has happened, despite the fact that every few months the Judicial Service Commission says that it
"is about to open the matter once again, using the procedure that has now been created by the
Judicial Service Commission Amendment Act”, which is that a judicial misconduct tribunal has been
set up.
It is thus exceedingly important that if the Constitution states that the procedure for doing certain
things is set out, then that procedure must be followed to the letter. What kind of a message will be
sent out to the public if the Judicial Service Commission itself does not even follow the law?

The JSC did not arrive at the correct decision because their failure to follow the procedure set down
defies natural law principles, such as audi alteram partem (both sides must be heard) and that
justice must not only be seen to be done, but must actually be done, particularly since the
independence of the judiciary is so vital for the protection of our constitutional democracy.
Activity 6.6
It has been argued by TW Bennet (1995) Human Rights and African Customary Law, that
traditional courts should retain their civil jurisdiction, but not be awarded jurisdiction to try
criminal matters. This, states Bennett, would ensure access to justice while simultaneously
guaranteeing the independence of traditional courts, the argument being that, unlike civil matters,
criminal matters could be presided over by one who is complainant, prosecutor and judge.
Do you agree with Bennett’s argument? Can you think of any safeguards in place that could
ensure the independence of traditional courts? (5)
Consider aspects such as the fact that in the hierarchy of courts, if one is aggrieved (dissatisfied) by
a decision of a lower court (such as a traditional court), a right of appeal (against the finding) or
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review (when a challenge is made to procedural aspects such as that the judge was biased and did
not provide a fair hearing) is available in a higher court. Therefore, one may approach a Magistrates
Court to overturn a decision of a traditional court. Since the officials in the traditional court are aware
of this possibility, they will do their best to render the best possible decision. Another factor that you
could consider is that only the state has the power to find a person guilty of a criminal offence, thus
it is appropriate for a traditional court only to have jurisdiction over civil matters in order to ensure
the legitimacy of traditional courts.
Activity 6.7
In March 2011, the Constitutional Court ruled that the Hawks (the corruption-busting unit of the
South African Police Service) lacked sufficient operational and structural independence to
enable them to properly fight corruption. The Court therefore declared the National Prosecuting
Authority Amendment Act and the South African Police Service Amendment Act – which
disbanded the Scorpions and which were passed by parliament and signed into law by former
President Kgalema Motlanthe in January 2009 – unconstitutional. Parliament was given until
September 2012 to remedy this.

Provide an opinion on the implications of the Constitutional Court’s decision. In particular,

critically discuss whether the decision gives rise to the counter-majoritarian dilemma. Your
answer must include
a) “an explanation of the counter-majoritarian dilemma” (5)
You had already learnt about the counter-majoritarian dilemma in the beginning of the course, but
the purpose of this question is to see how you apply the counter-majoritarian dilemma in practice. In
other words, you need to explain the counter-majoritarian dilemma in theoretical terms but then
emphasise that in this specific situation, we observe this “dilemma” because 11 judges (that is the
number of judges in the Constitutional Court) have declared a law invalid, but that law that they have
declared invalid is a law that was passed by 400 Parliamentarians who had all assumed their
positions in Parliament because we, the people had voted for the political party to which they
belong, and they represent that political party and thus, they represent us.
b) a critical assessment as to whether or not the Court’s decision undermines democracy
(Your answer must refer specifically to the operation of the separation-of-powers
doctrine in South Africa.) (6)
You must elaborate on the separation of powers doctrine. You should possibly start with a general
statement to the effect that section 172 of the Constitution clearly states that if any law is
unconstitutional, it must be declared unconstitutional and invalid. Emphasise that the judiciary is one
of the three principal organs of state and its jurisdiction/mandate is to adjudicate matters concerning
allegations of unconstitutionality of laws, whereas the other two principal organs of state – the

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legislature and executive – each have their own areas of specific functioning (and expertise to do
what they are required to do). Briefly discuss what the legislature and executive are responsible for.

You then answer the question about whether or not democracy has been undermined. You would
state that by virtue of the fact that the judiciary is obliged to ensure that the Constitution is upheld, it
MUST declare the National Prosecuting Authority Amendment Act and the South African Police
Service Amendment Act invalid because these laws have had the effect that there is no longer an
independent, effective corruption-combatting entity in South Africa and corruption itself would give
rise to numerous violations of the Constitution because invariably it would be the poor who would
suffer most because money that should be used for service delivery would be siphoned off in
corruption. You would logically then be reaching your conclusion that the judiciary did not undermine
democracy by declaring the law invalid. Even though it is the law that was passed by 400 people
who were ostensibly representing us, those same Parliamentarians are themselves bound to comply
with and uphold the Constitution when performing their tasks, but they failed to recognise the flaws
in the Amendment Acts, thus their actions had to be corrected by the Constitutional Court. In fact,
what the judiciary was doing, was giving meaningful effect to the Constitution by declaring those
laws invalid.

Legislature Executive *Judiciary

400 members of the National Assembly
are elected in order to pass laws on our
behalf. Since the membership reflects the
wishes of the majority of the population,
the laws enacted are consistent with the
interests of the majority of the people.
However, when a law is passed which
somehow infringes on the rights or
interests of society, that law must be
declared invalid and unconstitutional. It is
the judiciary’s role to declare the law
invalid, even though the judiciary is
composed of a small minority of appointed
people (no more than 11 at any time) who
seem to have more power than 400
people. This is the counter-majoritarian
dilemma. But remember, it is not
undemocratic for the judiciary to declare
law invalid if the law is not in line with the
rule of law or supremacy of the
Constitution.
The judiciary’s primary purpose is to
resolve disputes between parties. In the
context of Constitutional Law, its duty is to
ensure that all law and all conduct is
consistent with the Constitution. You must
know which courts have constitutional
jurisdiction and which not. Even when the
High Court or Supreme Court of Appeal
declares law or conduct invalid, the
decision is not final until it has been
confirmed by the Constitutional Court.
The judiciary is thus responsible for
maintaining adherence to the rule of law.
In Fedure v Johannesburg Transitional
Metropolitan Council, the court stated:
“the rule of law, to the extent that it
expresses the principles of legality is
fundamental to Constitutional Law, since
the rule of law includes at a minimum the
principle of legality”.
In order to undertake its task successfully,
the judiciary must be independent.
S165(2) and (3) confirm this. Therefore, in
South African Personal Injury Lawyers v
Heath, the court held that it is not
appropriate for a sitting judge to be
appointed to chair a commission of inquiry
as this blurs the distinction between the
judicial and executive roles.

But, the judiciary must understand the

limits of its powers. It cannot intrude
unnecessarily into the domain of either the
legislature or the executive. In National
Treasury v Opposition to Urban Tolling

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Alliance it was held that the judiciary is not

suited to making policy-laden and
polycentric decisions as that is the duty of
the executive.

It was similarly held in MEC for Education

v Pillay that courts must be “deferent” to
the executive because of the executive’s
expertise and qualifications to make such
decisions.

Activity 7.1
The ANC currently holds 249 seats in the National Assembly. The DA holds 89 seats, the EFF
holds 25 seats, and the other ten parties share 37 seats. At first glance, these numbers may not
appear particularly significant when one considers that the essential role of the National
Assembly, as laid down by section 55 of the Constitution, is to “legislate”, “maintain oversight”
and “ensure all executive organs of state in the national sphere of government are accountable
to it”. However, in the context of decision-making structures and oversight authorities, the ANC
is firmly of the view that “we have more rights here because we are a majority. You have fewer
rights because you are a minority” (which is a statement made by President Jacob Zuma during
an exchange on labour tensions before the Marikana killings by the police in 2013).

Against this backdrop must be juxtaposed section 57 of the Constitution, which states that the
rules and orders of the National Assembly “must provide for the participation … of minority
parties … in a manner consistent with democracy”. The DA has sought legal advice from you
because it is of the view that, despite the Public Protector’s report, “Secure in comfort”, in which
she investigated the security upgrades at Nkandla and recommended that a portion of the
money be repaid by President Zuma, the Nkandla saga was laundered in various parliamentary
processes to absolve the President and anyone in his Cabinet from accountability, as public
works officials and the presidential architect were blamed.

In the light of the general sentiment expressed above, which is that it is the legislature’s duty to
enact laws, maintain oversight and ensure that national-sphere executive organs remain
accountable to it, you are required to draft a well-substantiated legal opinion (beginning with an
introduction, then setting out the issues to be discussed, the relevant law, and the application of
the law to the facts, and, finally, reaching a defensible, sound conclusion) in which you address
the following:
1. Examine the relationship between the National Assembly and the national executive in the
context of South Africa’s constitutional democracy. You should indicate whether Parliament was
correct in referring the Nkandla matter to various parliamentary committees (in an effort to
exonerate the President of any wrongdoing) instead of simply adopting the Public Protector’s
report and implementing it. Your answer must specifically address the status of the findings

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(recommendations) by the Public Protector. Substantiate your answer with reference to case
law and relevant constitutional provisions. (30)
This should be answered in the form of an essay, such as the following:
1 Introduction
The life of the law, said Pound in 1912, is in its enforcement (“The Scope and Purpose of Socio-
Logical Jurisprudence III” Harvard Law Review Vol 25 (6) (1912) 514). His thinking was informed by
the fact that law is a social institution which may be improved by intelligent human effort in the form
of the interpretation and application of legal rules which take into account the social facts upon
which the law is to be applied. What Pound had in mind is that the law should be interpreted
sociologically (that is, as a product of the people). The South African Constitution is possibly one of
the best examples of a Constitution which is the product of the people: it was adopted after a
lengthy process of careful deliberation and negotiation by representatives of all political parties –
initially in the form of the Convention for a Democratic South Africa (CODESA) and thereafter, the
Multi-party Negotiating Forum. By virtue of section 2 of the Constitution, which provides that the
Constitution is the supreme law of the land and that all law and all conduct inconsistent with it, is
invalid, it is our wish that, as a product of the people, the Constitution will be an enforceable and
binding document which will keep all representatives of the state, including the President and the
government, in check against any abuse of power. After all, as James Madison, the fourth US
President stated: “If angels were to govern men, neither external nor internal controls on
government would be necessary” (otherwise abbreviated to “men are not angels”).

2 Issues under consideration, with specific reference to the Nkandla saga

The pertinent issues that are of relevance in this matter are the following:
(1) What is the nature of South Africa’s constitutional democracy and are there sufficient
safeguards to ensure that power is not abused?
(2) What is the status of the findings of Chapter 9 institutions?
(3) Is the National Assembly regulated entirely by the majority political party in South Africa?
(4) Is South Africa’s democracy a true democracy?
(5) Is it permissible for the judiciary to review the conduct of the National Assembly in order to
ensure that opposition political parties are not marginalised?

3 The application of the notion of “constitutional democracy” to South Africa

In a constitutional democracy, such as South Africa, the state is deemed to operate on the basis of
the notion of constitutionalism. As De Vos et al state on page 38 of the textbook, constitutionalism
“conveys the idea of a government that is limited by a written constitution: it describes a society in
which elected politicians, judicial officers and government officials must all act in accordance with
the law”. Without adherence to constitutionalism, it is envisaged that Lord Acton’s quote that “all
power tends to corrupt, and absolute power corrupts absolutely”, may well ring true.

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

Section 1(c) of the Constitution declares that South Africa is based on the rule of law. This entails
that everyone (both human beings and organs of state) must comply strictly with the letter of the
law. However, this is not the only method of interpreting the rule of law. The other is the substantive
conception of the rule of law, whereby there is a perceived commitment of the legal order to the
supremacy of the constitution and spirit of the law, even if such constitutional or statutory
commitments are unwritten. Importantly, the effect of the rule of law is that everyone – including the
President – must obey the law. Developing the thinking around the substantive conception of the
rule of law, if institutions are established which have the mandate of “investigating 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”, as the Public Protector’s office
does, in terms of section 182(1) of the Constitution, then surely if the Public Protector (Thuli
Madonsela) investigated President Zuma after evidence of gross overspending of taxpayers’ money
on Zuma’s private Nkandla residence came to light and concluded that the President had personally
benefitted from the upgrades and determined a reasonable amount for President Zuma to repay the
state, then the President should comply. Support for this contention is that, even though it may not
be written in section 182 that the findings of the Public Protector are binding, if there is a
commitment to the Constitution and all that it embodies, the necessary implication is that the Public
Protector’s findings should be implemented. The case of Hlaudi Motsoeneng, the former COO of the
South African Broadcasting Corporation (SABC), highlights the confusion that has surrounded the
status of the findings of the Public Protector. Initially, in Democratic Alliance v South African
Broadcasting Corporation Ltd and Others 2015 (1) SA 551, Schippers J in the Western Cape High
Court held:
The fact that the findings of and remedial action taken by the Public Protector are not binding does not
mean that these findings and remedial action are mere recommendations, which an organ of state may
accept or reject. (para 59)
The subsequent litigation in the Supreme Court of Appeal, on the other hand, lends support for the
fact that the Public Protector’s findings are indeed binding. In South African Broadcasting
Corporation Limited and Others v Democratic Alliance and Others (393/2015) [2015] ZASCA 156,
the Supreme Court of Appeal held at paragraph 52 that:
The Public Protector cannot realise the constitutional purpose of her office if other organs of state may
second-guess her finding and ignore her recommendations. Section 182(1)(c) must accordingly be taken to
mean what it says. The Public Protector may take remedial action herself. She may determine the remedy
and direct its implementation. It follows that the language, history and purpose of section 182(1)(c) make it

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 clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy
for State misconduct, which includes the power to determine the remedy and direct its implementation.

The Court went on to emphasise:

An individual or body affected by any finding, decision or remedial action taken by the Public Protector is
not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the
position that the outcome of that parallel process trumps the findings, decision or remedial action taken by
the Public Protector. (para 53)
The epitome of the rule of law is that no one is above the law and the law applies equally to
everyone. In addition, if the law gives an indication that things should be a certain way, then that is
precisely what should happen. Authority for this line of thinking is found in the cases of Glenister v
President of the Republic of South Africa and Others (2011) and Freedom Under Law v Acting
Chairperson: Judicial Service Commission and Others (2011). In the Glenister case, it was
confirmed that a fundamental feature of a state premised on the rule of law is that the state (or any
of the branches of the state, namely the legislature, executive or judiciary) does not act arbitrarily or
irrationally. The legislature was challenged for acting arbitrarily and irrationally when it amended
legislation eradicating the Directorate of Special Operations (the Scorpions) (which had been
extremely successful in fighting corruption), and replacing them with the Hawks, which would be
located within the South African Police Service. The essential issue was whether an obligation
exists to create an independent anti-corruption institution. The Court held that “international law,
through the inter-locking grid of conventions, agreements and protocols, unequivocally obliges
South Africa to establish an anti-corruption entity that has sufficient independence and is free from
political interference, to ensure that it can do its job without fear and favour” (paragraph 163). For its
part, the Freedom Under Law case illustrates that since the Judicial Service Commission is required
to investigate serious complaints about impropriety on the part of any judges (Judge Hlophe had
been accused of trying to improperly persuade justices of the Constitutional Court to find in favour of
Jacob Zuma in his corruption trial), then the Judicial Service Commission may not abdicate this
constitutional duty to investigate the complaint properly (paragraph 63).

With respect to the separation of powers, the state is structured in such a way that there are three
principal organs of state, namely the legislature (National Assembly), the executive (also referred to
as the government) and the judiciary. Each of these has specific, distinct functions that they
perform. Therefore, the executive is supposed to implement policy and law, while the judiciary must
adjudicate disputes concerning the correct interpretation of law to fact. Likewise, the National
Assembly and the judiciary should be completely independent of each other and the one should not
intrude unnecessarily into the domain of the other. Accordingly, in terms of section 55 of the
Constitution, the role of the National Assembly is primarily to legislate. A wide variety of procedures
are put in place to ensure an effective legislative process in the hope that the final result will reflect
the wishes of the majority. This is consistent with the understanding that the Constitution itself is the
product of the people and therefore, every provision of the Constitution should be respected/upheld.

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The judiciary’s role is defined in section 165 of the Constitution, which provides that the courts must
apply the law and the Constitution impartially and without fear, favour or prejudice. Courts should
always be aware of their responsibility to act judicially; and not politically. As such, courts have no
power to engage in political decision-making, which would include drafting of laws or making
executive decisions over aspects of which they have no knowledge or expertise. If there is one
overwhelming feature of the South African court – one which is a typical feature of a strong judiciary
and one which is able to uphold the rule of law – it is their independence and impartiality,
notwithstanding South Africa’s dominant party democracy, which has as one of its characteristics
the “colonisation of independent institutions meant to check the exercise of political power by the
dominant party, enmeshing them in webs of patronage” (Choudhry, S “He had a mandate”: The
South African Constitutional Court and the African National Congress in a dominant party
democracy (2008) Constitutional Court Review (2) 2). In this respect, the courts are beyond
reproach because of their unwavering dedication to section 165 of the Constitution which states that
the judiciary must decide matters without fear or favour.

4 The mutually-reinforcing concepts of democracy and ubuntu

The African philosophical and social concept of ubuntu represents humanity, personhood,
compassion, humanness and morality (Y Mokgoro ‘Ubuntu and the Law in South Africa’ Buffalo
Human Rights Law Review (4) 1998). It is also commonly described as a metaphor for group
solidarity, precisely because group solidarity is central to the survival of society in a context of
scarce resources.

Mokgoro goes on to state that society must necessarily be premised on ubuntu, considering its
basis of “cooperation, compassion, communalism and concern and respect for the collective respect
of the dignity of personhood … emphasising the virtues of that dignity in social relationships”.
Democracy, for its part, means that everyone’s opinion, place in society and right to be heard must
be respected. Parliament is the representation of democracy in action, because it is as a direct
consequence of elections that have been held that the members of Parliament are elected by us,
the people, to represent our needs in that forum where the laws and important decisions governing
our lives are made. At a minimum, we expect that Parliament will not act arbitrarily (as it appears to
have done with the Nkandla matter), but will instead embrace the views and opinions even of the
minority parties in Parliament and act strictly according to the Constitution. It is thus unacceptable
and intolerable for the minority parties in parliament to be marginalised simply because there are
fewer members of the minority in Parliament.

5 The separation of powers doctrine in theory and practice: the legitimacy of judicial review
The constitutional principles which formed part of the Interim Constitution required that the
Constitution contain a separation of powers between the three branches of state as well as the
appropriate checks and balances on the exercise of power of each of these branches to “ensure
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accountability, responsiveness and openness”. According to De Vos et al, “the separation of powers
is also closely associated with the protection of human rights more generally in addition to
safeguarding political liberty. This is so because separation of powers aims to protect society
against the abuse of political power, something that is required to protect human rights” (page 60).
The values of human dignity, the achievement of equality and the advancement of human rights and
freedoms are contained in section 1(a) of the Constitution. Human rights must therefore always be
respected and protected, because failure to do so amounts to a violation of the rule of law.

The proper functioning of the judiciary in relation to the legislature was clearly spelt out in the case
of Mazibuko Leader of the Opposition in the National Assembly v Sisulu MP Speaker of the National
Assembly and Others, where it was held at paragraph 256E-H that: “There is a danger in South
Africa of the politisation of the judiciary, drawing the judiciary into every political dispute as if there is
no other forum to deal with a political impasse relating to policy or disputes which clearly carry
polycentric consequences beyond the scope of adjudication”.

In the context of this dispute, judges cannot be expected to dictate to parliament when and how it
should arrange its precise order of business matters’. The Court also held that:
Courts do not run the country, nor were they intended to govern the country. Courts exist to police the
constitutional boundaries, as I have sketched them. Where the constitutional boundaries are breached or
transgressed, courts have a clear and express role; and must then act without fear or favour.

The counter-majoritarian dilemma

The difficulty arises when courts do invoke their constitutionally entrenched powers to declare law
passed by the legislature invalid on account of it being unconstitutional. The reason why this is
contentious is because 400 members of Parliament have been democratically elected to assume
positions in Parliament in order to represent the interests, needs and wishes of the people. We
therefore entrust those parliamentarians to pass laws on our behalf. While section 57 of the
Constitution states that the National Assembly must provide for the participation of minority parties
in a manner consistent with democracy; and section 59 declares that public participation must be
facilitated in the legislative processes of the Assembly, sometimes the laws that are ultimately
passed are not acceptable because they have the effect of discriminating against certain persons
(even though this was not intended). In such an instance, the only recourse which the affected
persons have is to approach a court seeking the judicial review of that legislation. Here is where the
problem manifests itself: the courts are composed of a tiny majority of persons (often only one in the
High Court – or perhaps three as a maximum – approximately seven in the Supreme Court of
Appeal; and a maximum of 11 in the Constitutional Court) and these members of the judiciary are
not democratically elected. Instead, they are appointed by the President after consulting with the
Judicial Service Commission. We may not even know or like the judge(s) who will hear the matter
and he/she (they) seemingly have immense or superior power over the 400 members of Parliament
who are democratically elected, because the court can declare the legislation invalid. This is known

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as the counter-majoritarian dilemma, because it appears to invert the reasonable expectation that
the will of the majority should prevail. However, it is in fact not a dilemma and is perfectly
constitutional because section 1 of the Constitution proclaims that the State is based on the rule of
law. Therefore, if the Constitution states that no one may be discriminated against, then it is up to
the courts to ensure that any law that does discriminate is remedied/amended. Importantly, though,
the courts themselves will not amend the law (unless it takes the form of severance – where words
are deleted from the legislation – or reading in – where words are inserted). For the most part, the
judiciary will refer the law back to Parliament so that Parliament can rectify the law themselves,
because that is their responsibility.

Moreover, section 172 of the Constitution unequivocally declares that any law (or conduct) must be
declared invalid and unconstitutional by a court when a court is determining a matter concerning
compliance with the Constitution. Therefore, the judiciary is not acting outside the scope of its
powers by declaring law invalid; it is merely giving effect to the Constitution.

5.1 The Nkandla situation

It has been argued by the DA that the Nkandla saga was laundered in various parliamentary
processes to absolve the president and anyone in his cabinet from accountability. Instead, public
works officials and the presidential architect were blamed. Given that the DA are seeking to
challenge this judicially, it is imperative that the DA is aware of the constraints imposed on the
exercise of power by the judiciary, namely that the judiciary cannot make political decisions and is
especially prohibited from making polycentric decisions which impact on the budget that has been
prepared by the executive, because the judiciary does not have the detailed and specific knowledge
which the executive has concerning how much money is available and how best it should be spent
(Mazibuko v City of Johannesburg [the Phiri water case]). As such, the courts are deferent to the
legislature and the executive because they are believed to have specific expertise that the judiciary
does not possess. However, if the Presidential Handbook dictates that the President’s home should
be properly secured, at state expense, then only security upgrades are what should be paid for with
taxpayers’ money. The controversy surrounding the Nkandla situation is that the Public Protector’s
investigation revealed that non-security related, luxurious expenses to the amount of approximately
R246 million were incurred. Since this is in direct conflict with the provisions of the Presidential
Handbook, it is the judiciary’s role to “police the constitutional boundaries”. The judiciary is thus
empowered to declare that this non-security related expenditure does not comply with the
Presidential Handbook, and in turn, does not comply with the Constitution, because all law must be
constitutional. Should it do so, the remedy it would have to invoke in order to redress the situation is
to declare such conduct invalid on account of its unconstitutionality, and order the President to repay
this amount of money. Essentially, what the judiciary would be doing is to ensure responsiveness,
openness and accountability as detailed in section 1(d) of the Constitution.

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Therefore, while the National Assembly may have tried its best to absolve the President of any
wrongdoing, even the National Assembly is not above the law and above the Constitution.
Accordingly, the Democratic Alliance is permitted to submit a case to court requesting the court to
declare the conduct of the National Assembly invalid.

A related order would be the order compelling President Zuma to repay the money. This is not
viewed as a violation of the separation of powers doctrine. It is, instead, a fundamental part of
upholding the Constitution. In turn, the National Assembly, and even President Zuma, are obliged to
adhere to the decisions made by the courts and must give meaningful effect to those decisions as a
matter of priority.

6 Conclusion
In the most literal sense of the concept, the rule of law entails that the President himself should have
immediately recognised that the exorbitant, non-security related expenditure on his homestead is
not compatible with the provisions of the Presidential Handbook, and voluntarily repaid such over-
expenditure. This would be compatible with the concepts of responsiveness and accountability, as
well as the supremacy of the Constitution. In the absence of such action, the judiciary has the right
to apply its mind carefully to the legal and factual situation presented to it and make a determination.
Any such determination must be respected and enforced, amongst other reasons, to indicate the
legitimacy and credibility of the judiciary. Despite the fact that the court’s determination may appear
at first glance to amount to an invasion of the National Assembly’s internal workings and procedures
– because the decision overrides the internal processes absolving the President of any
responsibility or need to repay the excess expenditure – this is not the case. Indeed, the judiciary’s
decision represents the reinforcement of the separation of powers doctrine and the duty of the
courts to ensure the rule of law, the protection of human rights, supremacy of the Constitution,
democracy, transparency and accountability.
2. Explain, with reference to relevant examples, the mandate and powers of the Public Protector
and the Independent Electoral Commission. (10)
Activity 8.1
The Cape Town Municipality recently passed a by-law to the effect that refuse removal will take
place once a month, as opposed to the current once-a-week removal. The municipality stated
that the reason for this was the rising fuel price and other pressures on the budget that had not
been factored in. Refuse removal is a functional area in Schedule 5 (Part B) of the Constitution.

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

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

Provide a fully reasoned opinion in which you advise the Cape Town Municipality on the
likelihood of its challenge being successful. (15)
You need to study the relevant pages in the Textbook. Please attempt to systematically answer this
question using the rules/provisions set out in the Textbook. Please ensure that you are able to
compile a persuasive and legally-sound opinion using the following suggested framework:
The issue is whether Parliament can intervene and pass a law which contravenes/overrides the
municipal by-law?
The Constitution is the supreme law of the land and all law and all conduct must conform to it.
According to Chapter 3 of the Constitution, co-operative governance in South Africa is divided into
three spheres: national, provincial and local and power is divided between them, but it is permissible
for one of the spheres to override the decision of another if the Constitution permits it if this is
necessary to resolve a conflict of laws between two spheres.

There is a stipulated method of resolving conflicts, depending on whether competencies have been
conferred exclusively or concurrently, which is as follows:
a. Exclusive competencies – listed in schedule 5. Conflict resolution – section 44(2) applies.
b. Concurrent competencies – schedule 4. Section 146 applies
c. Residual – not listed in either – falls under national.

Municipalities have constitutional authority to pass laws in respect of matters listed in Schedule 5.
Importantly, this authority has also (concurrently) been conferred on the national and provincial
governments. Specific reference is made to sections 155(6) and 155(7) of the Constitution. Section
155(6) obliges national and provincial governments to monitor and support local government.
Section 155(7) then goes further to state that national and provincial governments have executive
and legislative authority to see to the effective performance by municipalities of their functions,
subject to the provisions of section 44 of the Constitution. Section 44(2) (c) and (e) are relevant in
the specific facts presented in this question because (c) refers to the need to maintain minimum
standards, while (e) refers to the needs to ensure that no prejudice is caused to other provinces.

An argument needs to be developed as to whether or not the national legislature has the right to
intervene and pass a law which overrides the municipal by-law. Reference must be made to
relevant case law, which is the case of Ex Parte President of RSA: In re Constitutionality of the

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Liquor Bill 2000 (1) SA 732 (CC). In this case the Court held that the scope and ambit of the matters
set out in Schedule 4 and Schedule 5 of the Constitution must be interpreted in light of the model of
government adopted by the Constitution and the manner in which the Constitution allocates power
to the different spheres. As such, reference should be made to the fact that the local sphere has the
right to enact laws because it has been conferred original constitutional powers in order to regulate
its own affairs. However, this is subject to section 44.

Students need to apply the law to the facts by invoking section 44(c) and (e) which would require
that the national legislature intervenes because of the very harmful consequences which will
invariably ensue due to the refuse only being removed once a month instead of one a week. There
is no doubt that refuse lying around for a month will cause pollution of the air and waterways and it
is quite possible that this pollution will be spread to other provinces through such waterways. There
is an extremely high chance of disease arising as a result of the decision not to remove refuse
weekly. Reference could also be made to the case of Executive Council of the Western Cape
Legislature v President of the RSA 1995 (4) SA 877 (CC) in order to illustrate the mutually-
supportive relationship between the spheres of government.

Therefore, students must conclude by indicating whether the national government has the right to
intervene and pass the national legislation, or not. It is also advisable to include mention of the case
of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others,
where it was held that while the national government is entitled to pass laws regulating the local
government matters in Schedule 5, they are not entitled to pass laws giving themselves the power
to administer or implement those laws; the municipalities themselves must exercise the power to do
that. This gives meaningful effect to what was stated in the case of City of Cape Town v Robertson,
which is that local government has original constitutional powers and remains an independent
sphere, thus it should be entitled to decide how it will administer or implement a law that has been
passed by the national legislature but that is imposed on the local sphere.
Activity 8.2
Read sections 8.1 to 8.3 and then answer the following questions:
1. What do you understand by the term ‘cooperative government’ in the constitutional sense? (5)
2. Why is the government categorised into different spheres? (4)
3. What is the basis for such a distinction? (4)
4. What methods assist in identifying the systems of distribution of government power? (6)
5. Explain in detail the benefits associated with the principles of cooperative governance. (8)
6. The Minister of Transport adopts a policy on the regulation of the transport system in South
Africa which gives the national department sole discretion to ensure its implementation. This

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is done without consulting the other two spheres of government and the taxi industry that is
directly affected by the policy. With reference to the above:
a. Discuss the importance of intergovernmental relations in the execution of state authority. (5)

b. Explain the role of public participation in the development of substantive principles of public
governance. (8)
I would approach this question with reference to the case of Merafong Demarcation Forum and
Others v President of the Republic of South Africa and Others (discussed on page 88 of the
Textbook). The Constitution emphasizes that accountability, transparency and democracy are
central to the governance of the South African state. At a minimum, therefore, we can expect public
participation should be ensured when decisions are being made that affect some or even all of us.
Public participation has been dealt with in the Doctors for Life case and in that case, the
Constitutional Court were emphatic that the public have a right (and a duty) to participate in
decision-making. Public participation also gives credibility to decisions because they stem from a
legitimate source (the people) and have the buy-in of the people.

However, what the Merafong case has revealed to us is that genuine public participation should
occur. In other words, mere lip-service should not be paid to important decisions which impact on
how we will be governed. Substantive principles of public governance cannot be developed if the
public participation is a mere sham or a façade. As you will see in the discussion of the Merafong
case, even though a consultative process had been followed whereby the community were allowed
to air their views, the opinions of the community were blatantly disregarded. The majority opposed
the Constitutional Amendment that would relocate Merafong municipality to the North West province
from Gauteng, yet the legislature brought the law into force regardless of the dissatisfaction.

As a direct result of the failure to give meaningful effect to public participation, the Khutsong
township of Merafong “became ‘ungovernable’ and resembled a war zone as residents refused to
accept the decision to relocate the municipality”. Therefore, the conclusion is that public participation
is essential, but it must be real public participation and not merely formalistic thus giving the
impression that it is taking place whereas it is not in reality.
a. Analyse the importance of accountability in public governance. (6)
b. Examine the significance of the “reasonable principle” in fostering friendly relations
among the three spheres of governance and its potential for the development of
substantive principles of public administration. (6)
The textbook provides a discussion of co-operative governance that would serve as a good
answer to this question because it relies on case law where reasonableness was deemed
fundamental to friendly relations between the three spheres. In the case of Uthukela District
Municipality v President of RSA 2002 (11) BCLR 1220 (CC) it was emphasized that the spheres

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must exhaust all other remedies before approaching Court. The potential for the development of
substantive principles of public administration through such friendly relations will ensure that
section 195 of the Constitution is realized, because this section declares that the principles
governing the public administration are, inter alia, an efficient, economic and effective use of
resources; it must be development-oriented and must be accountable. Time-consuming and
resource-draining litigation between organs of state will defeat the very objectives to which the
public administration aspires, thus friendly relations is imperative among 3 spheres of governance.
Activity 8.2 is largely a summary of the textbook.
Activity 8.3
Study section 104 of the Constitution and then answer the following questions:
(a) In which body is the legislative authority of a province vested? (1)
You need to refer to and know section 104(1) of the Constitution.
(b) Discuss the legislative powers of the provincial legislatures. (In other words, in respect of
which matters may the provincial legislatures pass legislation?) (6)
You have to refer to and know section 104(1)(a) and (b) of the Constitution.
(c) Mention two functional areas in which a provincial legislature has exclusive legislative
authority, and two areas in which it shares concurrent legislative authority with parliament. (4)
You have to refer to and consult Schedule 4 and Schedule 5 of the Constitution. The functional
areas in respect of which provinces share legislative authority with parliament are listed in Schedule
4, while the functional areas in respect of which the provinces enjoy exclusive legislative authority
are listed in Schedule 5.
Activity 8.4
As an African philosophy of life, Ubuntu in its most fundamental sense represents personhood,
humanity, humanness and morality. It is a metaphor that describes group solidarity where such
group solidarity is central to the survival of society in a context of scarce resources. From this
perspective Ubuntu finds its cardinal embodiment in the Zulu expression umuntu ngumuntu
ngabantu which literally translated means a person can only be a person through others.
Former Constitutional Court Justice Yvonne Mokgoro articulates Ubuntu in the following terms:
Group solidarity, compassion, respect, human dignity, humanistic orientation and collective unity have,
among others been defined as key social values of Ubuntu. Because of the expansive nature of the concept,
its social value will always depend on the approach and the purpose for which it is depended on. Thus its
value has also been viewed as a basis for a morality of cooperation, compassion, communalism and concern
for the interests of the collective respect for the dignity of personhood, all the time emphasising the virtues of
that dignity in social relationships and practices. For purposes of an ordered society, Ubuntu was a prized
value, an ideal to which age-old traditional African societies found no particular difficulty striving for.
In Ubuntu-governed societies, therefore, there is greater emphasis on duties although rights are
always implied. The Ubuntu philosophy is premised on an acknowledgment that humans are
social beings. A society governed by Ubuntu also emphasises that everyone should participate

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in society and not disappear in the whole. A tradition of consultation and decision-making by
ordinary members of society is also embodied in Ubuntu. The consultation that precedes
decision-making in societies that acknowledge Ubuntu is derived from an age-old pre-colonial
African ethos that, arguably, permeated all pre-colonial African societies. The consultation
preceding decision-making in most pre-colonial African societies has led scholars to conclude
that most African societies were inherently democratic even though the word democracy may
not have been in use then.
With reference to the concept of Ubuntu, you must prepare an essay in which you highlight the
similarities and differences between the objectives of constitutional law and Ubuntu using relevant
case law, the provisions of the Constitution and the fundamental principles and concepts
underpinning constitutional law in order to reach a legally sound and compelling conclusion. (20)
You will have seen the section with the sub-heading: “The mutually-reinforcing concepts of
democracy and ubuntu” within the answer to Activity question 7.1. That is the essential
information being required of you here, but it is necessary for you to elaborate on it further.
Activity 8.5
Summarise, in your own words, what the Constitutional Court stated in Fedsure Life Assurance
Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). (5)
Activity 8.6
Two ratepayers, Daniel and Pumi, live in the Sandton area. They approach you with the
following problem: Parliament has enacted section 21 of the Local Government Amendment Act
which has a direct impact on the general valuation of property in the Sandton area, and the
rates based on those valuations. Daniel and Pumi indicate that they had no knowledge that
such an enactment had been proposed, nor were they given an opportunity to express their
views on the said Act prior to it coming into operation. You are required to advise Daniel and
Pumi on whether they can challenge the constitutionality of the said Act, and, if so, on what
basis such a challenge can be brought. To answer this question, you have to determine whether
parliament is sovereign under the new dispensation. If parliament is not sovereign, then you
must determine the status of the local sphere of government under the 1996 Constitution. You
also need to determine the mechanisms that are in place to assist the local sphere of
government in achieving its full potential. It is imperative that you refer to the Robertson case. (10)
It is imperative to emphasise, inter alia, that, in the Robertson case, it was held that local
government is “interdependent, inviolable and possesses the constitutional latitude within which to
define and express its unique character”. The Fedsure case is to a certain extent relevant because
this questions ultimately deals with the status of local government (that is why you need to refer to
the Robertson case). You need to make it explicit that in the current dispensation, each of the three

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spheres of government are distinctive, interdependent and interrelated, but each have full autonomy
to regulate their own affairs (for example, they each of their own legislative and executive powers)
and have original constitutional powers. You can contrast this situation with the previous
dispensation where the spheres were referred to as “levels” in a hierarchical arrangement with the
local level having no power and being entirely dependent and reliant on the national and provincial
governments. It is a good idea to refer to the objectives of local government but highlight that
meeting these objectives is only possible if there are sufficient funds available. You would then go
on to explain that even the local level has the power to make legislative decisions that affect the
province; including preparing a budget to ensure that it meets the needs of the community. Your
answer will necessarily involve a consideration of whether the raising of property taxes falls within
Part B of Schedule 4 and Part B of Schedule 5 (or is reasonably necessary for or incidental to the
effective performance of these functions) as these are the aspects over which municipalities have
exclusive legislative jurisdiction. But you must also consider section 44(1) of the Constitution when
determining whether it is the local level exclusively which has the power to pass a law concerning a
specific aspect, or whether the national level can also pass a law on that aspect. Here it is your
ability to reach a logical and persuasive conclusion that is important – there is not necessarily a
single right or wrong answer; it depends on how compelling you are in your answer.
A starting point would be to state that in terms of the Robertson case, the local sphere (municipality)
has the independence and autonomy to regulate its own affairs, especially to ensure the provision of
services to communities in a sustainable manner in terms of section 152(1) of the Constitution. You
could refer to Fedsure here to highlight that whatever decision it is that the municipality is taking, it
must always act rationally and in good faith and in accordance with the principle of legality –
meaning that it is constrained to only do what it is permitted to do in terms of Part B of Schedules 4
and 5. Equally, if the municipality has failed to perform a certain act (such as determine an
appropriate rate of property tax), it has not acted rationally and in good faith or in terms of the
principle of legality, because the Constitution obliges the municipality to be proactive in pursuit of
ensuring the best interests of the community over which it is responsible. Your premise here might
be that Daniel and Pumi claim that the new law is unconstitutional because the national sphere has
usurped the local sphere’s area of functional competence because the local sphere is responsible
for “public works only in respect of the needs of municipalities in the discharge of their
responsibilities to administer functions specifically assigned to them under this Constitution or any
other law“ as per Part B of Schedule 4 of the Constitution, which conceivably includes the raising of
taxes so that the local government can discharge their responsibilities to ensure the provision of
services to communities in a sustainable manner. It is worth emphasizing that Daniel and Pumi’s
claim is based on the fact that Parliament is no longer supreme, but the Constitution is now
supreme and all spheres of government are equal and have original Constitutional powers to
regulate their own affairs and they should co-operate with each other. However, since you are
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asked to assess the likelihood of Daniel and Pumi’s claim succeeding, you will have to ascertain
whether Daniel and Pumi’s interpretation of the local government’s competence in Part B of
Schedule 4 is correct. Since the raising of property taxes is not specifically mentioned, you would
need to engage in an analysis known as the “bottom-up method of determining the scope and ambit
of the matters set out in Schedule 4 and Schedule 5”. It would be beneficial to rely on the Liquor Bill
case and the City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal
case, to reach your conclusion. You would have to argue by analogy, using the “well-known
meaning” attributed to “property taxes”. Using that same type of thinking you will come to a
conclusion that the national government was well-within their right to enact this new law because
the national government has the legislative authority to “see to the effective performance by
municipalities of their functions” and since budgetary aspects are usually not open to public
discussion, the law is constitutional and Daniel and Pumi’s claim has no merit or prospects of success.

An alternative argument is obviously to conceptualise Daniel and Pumi’s claim as one of a failure of
the national government to allow public participation in the enactment of laws which will affect those
at the local government level since the national government is deciding the rate of property taxes
for, amongst others, the Durban area while the national government has no idea what the specific
needs of this local government area is and instead, it is the municipality under which Durban falls
which is obliged to manage its administration and budgeting processes to promote social and
economic development of the community, yet the national sphere is imposing itself. Using the
Doctors for Life case as your authority, you would have to convincingly argue that the law is
unconstitutional and must be declared invalid because Daniel and Pumi (and other similarly situated
persons) had absolutely no knowledge of the proposed law thus it was brought into effect without
following the correct processes and procedures. In this instance Daniel and Pumi’s claim would
have merit and very good prospects of success because the law is indeed unconstitutional due to
the failure to provide for public participation. What the Merafong case has revealed to us is that
genuine public participation should occur. In other words, mere lip-service should not be paid to
important decisions which impact on how we will be governed. Substantive principles of public
governance cannot be developed if public participation is a mere sham or a façade. In the Merafong
case, even though a consultative process had been followed whereby the community was allowed
to air their views, the opinions of the community were blatantly disregarded. The majority opposed
the Constitutional Amendment which would relocate Merafong municipality to the North West
province from Gauteng, yet the legislature brought the law into force regardless of the
dissatisfaction. As a direct result of the failure to give meaningful effect to public participation, the
Khutsong township of Merafong “became ‘ungovernable’ and resembled a war zone as residents
refused to accept the decision to relocate the municipality”. Public participation is essential, but it
must be real public participation and not merely formalistic.

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8 TRANSLATED GLOSSARY OF TERMS RELEVANT TO CSL2601
Accountability
a means/principle to control the arbitrary exercise of administrative discretion of persons exercising
authoritative/public power
isiZulu Uhlelo lokubusa ngokweMpoqamandla
Lolu wuhlelo lukahulumeni olunikeza umholi wonke amandla, olunikeza inhlangano
yezepolitiki noma isigaba sabantu esingaqokwanga ngokohlelo lwedemokhrasi wonke
amandla, kanti le nhlobo yabaholi ayiqokwanga yiningi labantu, kanti ngokunjalo laba
baholi abakuziphendulela kumphakathi abawubusayo futhi ababusi ngokwentando
yomphakathi obuswayo
isiXhosa Ukuphendula
indlela/inqobo yokulawula ukusetyenziswa ngokungahambisani nabantu abasebenzisa
igunya/igunya loluntu. Ukuphendula ngoko ikukhusela/kuthintela ukukhetha
okuphosakeleyo okungahambi kakuhle
Northern Boikarabelo
Sotho Mokgwa wa go laola tlwaelo ye e sa latelego molao ofe goba ofe ya boikgethelo bja go
phethagatša kahlolo le go tšea sephetho ya batho bao ba dumeletšwego maatla a go
dira seo. Boikarabelo ka gona bo šitiša dikgetho tše di fetofetogago gape tše di
tšwilego taolong
isiNdebele Aliphikiswa
Kulihlelo likarhulumende elinyula ukunikela umrholi amandla, ihlangano yepolotiki
nanyana isiqhema sabantu abangakakhethwa ngokwedemokhrasi linengi labantu, laba
bantu abakafaneli ukuziphendulela kibo begodu abausi ngokwentando yabantu
abababusako
Setswana Maikarabelo
tsela/ntlhatheo ya go laola tiragatso ya boitlhophelo jwa tsamaiso jwa batho ba ba
diragatsang dithata tsa bothati/setšhaba. Ka jalo maikarabelo a thibela boitlhophelo jo
bo sa rulaganang gongwe jo bo sa laolegeng
Sesotho Boikarabello
mokgwa/theo ya ho laola tshebediso ya botho ya kgetho ya tsamaiso ya batho ba
sebedisang matla a bolaodi/setjhaba. Kahoo, boikarabello bo thibela dikgetho tse sa
nepahalang le tsa sa lokelang
siSwati Mandlangengwenya
Luhlelo lwahulumende loluvuna kutsi onkhe emandla abekumholi, ecenjini letepolitiki
nome lokhetsiwe longakakhetfwa ngekwentsandvo yelinyenti lebantfu, alitilandzi
kulabo bantfu futsi alubusi ngendlela letsandvwa bantfu
Tshivenda Vhuḓifhinduleli
nḓila/mulayo wa u langa u shumiswa ha tshihaḓu ha tsheo ya vhulanguli ha vhathu
vhane vha vha vha khou shumisa maanḓa ndanguli/maanḓa a nnyi na nnyi.
Vhuḓifhinduleli zwenezwo vhu thivhela tsheo dzi re na vhukhakhi na dzo bvaho nḓilani
Afrikaans outoritêre stelsel
’n Regeringstelsel wat gekenmerk word deur ’n konsentrasie van mag in ’n leier, ’n
politieke party of ’n elite wat nie demokraties deur die meerderheid van die mense
verkies is nie, wat nie teenoor hulle aanspreeklik is nie en wat nie in hulle beste belang
regeer nie
Arbitrary action
action based on random choice or impulse and not reason, in other words, unrestrained action
isiZulu Isinyathelo esingenankathalo
lokhu kusho isinyathelo esithathwa isigubhukane ngaphandle kokucabangisisa
nokuhlela ngendlela efanele, futhi ngamanye amagama, lokhu kusho isinyathelo
esingayithobeli imingcele kanye nemibandela nemigomo ebekiwe

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isiXhosa Isenzo esingacwangciswanga

sisenzo esisekelwe kukhetho olungacwangciswanga okanye intshiseko kwaye
kungengangqiqo, ngamanye amagama, isenzo esinganqandwanga/ esingavinjelwanga
Northern Sephetho go ya ka boikgethelo
Sotho ke sephetho go ya ka boikgethelo goba ka go no itlela eupša e se ka lebaka le filwego,
ka mantšu a mangwe, go se laole maikutlo
isiNdebele Igadango lokuphatha ngamandla
Lesi kusisenzo sokuthatha iinqunto ngokuzikhethela nanyana ngokomuzwa kanti hayi
ngokusebenzisa iinzathu, ngamanye amagama, siqunto esingakacatjangisiswa kuhle
Setswana Dikgato tsa boitlhophelo
ke dikgato tse di ikaegileng ka boitlhophelo fela gongwe maikutlo mme e seng mabaka,
ka mantswe a mangwe, dikgato tse di sa laolegeng
Sesotho Ketso ya boikemelo
ke ketso e itshetlehileng hodima kgetho ya lotho kapa e susumetsang maikutlo eseng
hodima lebaka, ka mantswe a mang, ketso e sa thibelwang
Tshivenda Nyito ya vhutshinṋe
ndi nyito yo ḓisendekaho nga u nanga ha hu songo livhiwa kana ha tshihaḓu nahone
hu si kha kuhumbulele, nga maṅwe maipfi, nyito i songo fareledzwa kana u langiwa
Afrikaans Arbitrêre optrede
is optrede gegrond op lukrake besluite of impuls en nie op rede nie, met ander woorde
onbeteuelde optrede
Authoritarian system
A system of government that favours a concentration of power in a leader, a political party or an elite
who are not democractically elected by the majority of the people, are not accountable to them and
do not rule in their best interest
isiZulu Uhlelo lokubusa ngokweMpoqamandla
Lolu wuhlelo lukahulumeni olunikeza umholi wonke amandla, olunikeza inhlangano
yezepolitiki noma isigaba sabantu esingaqokwanga ngokohlelo lwedemokhrasi wonke
amandla, kanti le nhlobo yabaholi ayiqokwanga yiningi labantu, kanti ngokunjalo laba
baholi abakuziphendulela kumphakathi abawubusayo futhi ababusi ngokwentando
yomphakathi obuswayo
isiXhosa Inkqubo yolawulo ngegqudu
Inkqubo karhulumente ethanda ukugxininisa amandla kumphathi, iqela lepolitiki okanye
abemi abangakhethwanga ngokwenkqubo yenkululeko, abaphenduli ebantwini kwaye
imisebenzi yabo ayiphuhlisi bantu
Northern Sestemo ya pušanoši
Sotho Sestemo ya mmušo ye e ratago gore maatla a mantši a be go moetapele, mokgatlo wa
dipolitiki goba batho ba go huma, ba maatla bao ba sa kgethwago ka temokrasi ke
bontši bja batho, gomme ga ba na boikarabelo go bona gape ga ba buše go ya ka
dikgahlego tša bona
isiNdebele Akubuzwa/kusebaleni
Ukuzibonakalisa nanyana ukungabuzwa. Leli gama lisetjenziswa ngaphasi kobujamo
Besifundo se-CSL 2601 ukuveza ukobana naphezu kokuhlukana ngokwamandla
wamaphiko wombuso lokhu akukhange kuhlathululwe kuhle kuMthethosisekelo,
kuyazibonakalisa ngokwamaziko wokuziphendulela woMthethosisekelo
Setswana Thulaganyo ya bobusaesi
Thulaganyo ya puso e mo go yona dithata di leng mo moeteledipeleng, lekoko la
sepolotiki gongwe ba ba itsholetseng ba ba sa tlhophiwang ka tsela ya temokerasi ke
bontsi jwa batho, ba sa ikarabele mo go bona e bile ba sa buse mo dikgatlhegelong tsa
bona
Sesotho Tsamaiso ya bolaodi
Tsamaiso ya mmuso e tshehetsang bongata ba matla ho moetapele, mokgatlo wa

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 dipolotiki kapa motho ya phahameng ya sa kgethwang ho latela melaotheo ya
demokrasi ke bongata ba batho, ba sa ikarabelleng ho eena mme a sa laole ho latela
dithahasello tsa bona
siSwati Mandlangengwenya
Luhlelo lwahulumende loluvuna kutsi onkhe emandla abekumholi, ecenjini letepolitiki
nome lokhetsiwe longakakhetfwa ngekwentsandvo yelinyenti lebantfu, alitilandzi
kulabo bantfu futsi alubusi ngendlela letsandvwa bantfu
Tshivenda Sisiṱeme ya vhulanguli
Ndi sisiṱeme ya muvhuso i takalelaho u ḓala ha maanḓa kha murangaphanḓa,
Dzangano ḽa poḽiiki kana vha nṱha vho nangwaho lwa dimokirasi nga vhunzhi ha
vhathu, vha si vhe na vhuḓifhinduleli khavho na u sa vhusa ho sedzeswa
madzangalelo avho
Xitsonga Fumelo ra ku fuma u ri wexe hi matimba ya nswiri
Fambiselo ra mfumo leri leri mufumi a fumaku hi matimba a ri yexe, ntlawa wa politiki
kumbe va le henhla lava va nga fambisiki swilo hi ndlela ya xidimokrasi na swona lava
va nga hlawuriwangiku hi vunyingi bya vanhu na swona va nga ri ku na vutihlamuleri
eka vanhu no hlamusela matirhelo ya vona eka vanhu na swona va nga fumi hi ku
navela ka vanhu
Axiomatic
means self-evident or unquestionable. It is used in the context of CSL2601 to indicate that despite
the fact that the separation of powers is not explicitly referred to in the Constitution, it is self-evident
on account of the structure of the Constitution
isiZulu Into esobala/akubuzwa
Ukuzibonakalisa noma okungabuzwa. Lokhu kusetshenziswa kwisimo sesifundo se-
CSL 2601 ukuveza lokho yize uhlelo lokuhlukaniswa kwamandla lungacaci kahle
ngokoMthethosisekelo, lokhu kuyazisho ngokwakho mayelana nokuhleleka
kuMthethosisekelo
isiXhosa Okungathandabuzekiyo
Okubonakalayo okanye okucacileyo. Ngokwalapha kuCSL2601 eli gama libonakalisa
ukuba nangona kungaxelwanga gca ukwahlukaniswa kwamagunya kuMgaqo Siseko,
oku kucacile xa kujongwe isakhiwo soMgaqo Siseko
Northern Therešo
Sotho Go itlhatsela le go se belaetše. E šomišwa tabeng ya CSL2601 go laetša gore le ge go
sa šetšwe taba ya gore kgaoganyo ya maatla ga e laetšwe ka mo go hlakilego
Molaotheong, e a itlhatsela ka lebaka la sebopego sa Molaotheo
Setswana Akisiomatiki (Bonagalang)
go iponagatsa gongwe go sa tlhoke potso. Le dirisiwa mo bokaong jwa CL2601 go
supa gore le fa go na le ntlha ya gore kgaoganyo ya dithata ga e tlhagisiwe ka
tlhamalalo mo Molaotheong, e iponagatsa ka ntlha ya popego ya Molaotheo
Sesotho Ho amohelwa
iponahatsa kapa hlakile. E sebediswa maemong a CSL2601 ho bontsha hore ho sa
tsotellehe hore na karolo ya matla ha e bolelwe ka ho hlaka hakae ho Molaotheo, e
iponahatsa ka lebaka la sebopeho sa Molaotheo
siSwati Kutisho
Kutichaza nome kutifakazela nekungadzingi kubutwa. Lreligama lisetjentiswa
engcikitsini ye-CSL2601 kuchaza kutsi nanome liphuzu lekwehlukaniswa kwemandla
alikabekwa ngembaba kuMtsetfosisekelo, kuyatisho kutsi nawubuka sakhiwosimo
seMtsetfosisekelo
Tshivenda U ḓiṱanziela
Vhuṱanzi vhu re khagala kana vhu sa vhudziswi. Vhu shumiswa kha nyimele ya CSL2601
u sumbedza uri naho u fhandekanywa ha maanḓa hu songo tou sumbedziswa kha
Ndayotewa, zwi khagala kha nyimele ya tshivhumbeo tsha Ndayotewa
Xitsonga Axiomatic
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swa ku tivonakarisa swi ri ntiyiso kumbe ku nga vi na xilaveko xa ku vutisa hi swona.

Swi tirhisiwa eka xiyimo xa CSL2601 ku kombisa leswo hambi ku ri na ku avanyisiwa
ka matimba, kambe a swi vekiwi hi ndlela leyi nga rivaleni eka Vumbiwa, swo tshama
swi ri rivaleni no tikombisa hi ndlela leyi Vumbiwa ri nga hleleka hi yona
Afrikaans Aksiomaties
Vanselfsprekend of onbetwisbaar. Dié term word in die konteks van CSL2601 gebruik
om aan te toon dat hoewel die Grondwet nie uitdruklik na die skeiding van magte
verwys nie, die skeiding van magte uit hoofde van die struktuur van die Grondwet
vanselfsprekend is
Bill
A draft law that the legislature is discussing and considering. Once Parliament duly passes the Bill
and the President assents to (signs) it, it becomes an Act of the legislature
isiZulu UMthethosivivinywa
Lo wumthetho osachibiyelwa osacocwa nosabhekwe yisishayamthetho. Ngemuva
kokuthi uMongameli aphasise futhi asayinde uMthethosivivinywa, bese uba wuMthetho
ngokugcwele wendlu yesishayamthetho
isiXhosa UMthetho oyilwayo
UMthetho ongekabi ngumthetho kodwa usaxoxwa ngabaqulunqi mithetho. Xa
uMongameli evuma uMthetho, kuthiwa yiAct of the legislature
Northern Molaokakanywa
Sotho Molao wo o ngwadilwego wo lekgotlapeamelao le o ahlaahlago le go o naganiša. Ge
Mopresidente a sena go dumela le go saena Molaokakanywa, e ba Molao wa
lekgotlapeamelao
isiNdebele UMthethomlingwa/Ibhili
Kumthetho osatlanywako osenziwako nosatjhejwe sibethamthetho. Ngemva kokuthi
uphasiswe nguMengameli bewutlikitlwe njengeBhili, uba Mthetho wesibethamthetho
Setswana Molaokakangwa
Molaotlhomo o kokoanotheomolao e o buisanelang le go o ela tlhoko. Fa
Moporesidente a fetisa le go saena Molaokakangwa, e nna Molao wa
kokoanotheomolao
Sesotho Bili
Molao wa moralo oo mokgatlo wa melao ya naha o o sekasekang mme o o nahanang.
Hang ha Mopresidente a fetisa ka nepo le ho saena Bili, e fetoha Molao wa mokgatlo
wa melao ya naha
siSwati Umtsetfosivivinyo
Ngumtsetfo wesikhashana sishayamtsetfo lesisawubuka nalesisacocisana ngawo.
Nangabe Mengameli asawuphasisile wawusayina lowo Mtsetfosivivinyo bese-ke
sewuba nguMtsetfo wesishayamtsetfo
Tshivenda Mulayotibe
Mvetomveto ya mulayo une vhusimamilayo ha kha ḓi rera nga hawo na u u lavhelesa.
Musi Phuresidennde o no phasisa na u saina mulayotibe, u vha Mulayo wa
vhusimamilayo
Xitsonga Nawumbisi
Nawu wa mpfampfarhuto lowu ka ha burisaniwaka hi wona no wu xopaxopa
epalamende. Loko presidente a sayina Nawumbisi, kutani wu va Nawu wa Palamende
Afrikaans Wetsontwerp
’n Konsepwet wat deur die wetgewende gesag bespreek en oorweeg word. Sodra die
president die wetsontwerp behoorlik aangeneem en onderteken het, word dit ’n wet
van die wetgewende gesag
Bona fide

301
Good faith/genuine. The presumption that a person (in constitutional law often a public official
exercising public power) will act in an honest and fair manner and not out of spite or in an arbitrary,
capricious, dishonest or corrupt manner
isiZulu Ukuthembeka/ngokuthembeka
Ukthembeka/iqiniso langempela. Kuchaza ukuthemba ukuthi uzosebenza ngendlela
ethembekayonangendlela ngathathi uhlangothi luthize futhi hayi ngendlela
yokwedelela noma ngendlela engafanelanga, ngendlela engathembekile nangendlela
yenkohlakalo
isiXhosa Bona fide
Ngokwenene. Ingcinga yokuba umntu (ngokomthetho woMgaqo Siseko. oligosa loluntu
nosebenzisa amandla oluntu) uza kusebenza ngendlela ethembekileyo,
engenamkhethe hayi ngokungalingani okanye ngendlela yobuqhophololo
Northern Kgonthe
Sotho Tumelo ye botse goba ya kgonthe. Kgopolo ya gore motho (molaong wa molaotheo
gantši mohlankedi wa setšhaba yo a dirišago maatla a mmušo) a ka itshwara ka
mokgwa wa go se botege le go se loke gomme e se ka lebaka la mokgwa wa lehloyo,
wo o sego molaong, wa go se tsepame, wa go se botege goba wa bomenetša
isiNdebele Ukuthembeka/othembekileko
Ngokuthembeka/kwamambala. Lokhu kuthatha ukuthi umuntu (ngokomthethosisekelo
kuvamileko isisebenzi sombuso sisebenzisa amandla wombuso) uzokusebenza
ngokuthembeka nangokungathathi ihlangothi kanti hayi ngokurhuga nanyana
ngendlela yokuthatha isiqunto esingakafaneli, ngendlela engakalindeleki, ngendlela
engathembeki nanyana ngendlela yobulelesi
Setswana Bona fide (Boammaaruri)
Boammaaruri/ikanyega. Kgopolo ya gore motho (mo molaong wa molaotheo gantsi ke
motlhankedi wa setšhaba yo o diragatsang dithata tsa setšhaba) o tlaa diragatsa ka
mokgwa o o boammaaruri e bile a sa gobelele mme e seng ka go nyefola gongwe ka
mokgwa o o se nang thulaganyo, o o sa tsepamang, o o se nang boammaaruri le o o
tletseng bobodu
Sesotho Bona fide
Tumelo e ntle/ya nnete. Kgopolo ya hore motho (ho molao wa motheo hangata
molaodi wa setjhaba ya sebedisang matla a setjhaba) o tla sebetsa ka tsela ya nnete
le e nang le toka mme eseng ka ho se tsotelle kapa tsela e sa laoleheng, e sa tsitsang,
e hlokang nnete kapa e bodileng
siSwati Kwetsembeka
Kwetsembeka/mbambamba. Ngumcondvo lotsi umuntfu (ngekwemtsetfo
wemtsetfosisekelo sisebenti sembuso lesisebentisa emandla ekusebenta embusweni)
utakwenta tintfo ngebucotfo nangendlela lengakhetsi luhlangotsi, hhayi
ngekuphindzisela, ngengcondvo lengakabhadli nome ngendlela yekungatsembeki
nekukhohlakala
Tshivenda Bona fide
Lutendotendo/zwa vhukuma. Khumbulelo ya uri muthu (kha mulayo wa ndayotewa
kanzhi muofisiri wa nnyi na nnyi ane a khou shumisa maanḓa a nnyi na nnyi) u ḓo ita
nga u fulufhedzea na nga nḓila kwayo hu s inga u nyelisa kana nga u khethekanyea,
fhambanya, u sa fulufhedzea kana nga nḓila ya vhuaḓa
Xitsonga Bona fide
Ku tshemba/hi ntiyiso. Ku swi teka leswo munhu (hi ku landza nawu wa vumbiwa,
ngopfu ngopfu muofisara loyi a endlaka hi ku landza matimba ya nawu) u ta teka goza
kumbe ku endla nchumu hi ntiyiso na vutshembeki na hi ndlela leyinene ku nga ri hi ku
endlela ntsena tihanyi handle ko landza nawu, hi ku cinca mianakanyo hi xihatla, hi ku
kala vutshembeki na hi mikhuva yo bola
Afrikaans Goeie trou
Te goeder trou/goeie trou; eg/opreg. Die veronderstelling dat ’n persoon (in staatsreg,

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 CSL2601/102/2024

dikwels ’n staatsamptenaar wat publieke mag uitoefen) op ’n eerlike en regverdige wyse,

en nie uit nyd of op ’n arbitrêre, wispelturige, oneerlike of korrupte wyse nie, sal optree
Bill of Rights
the term to describe Chapter 2 of the Constitution. This Bill of Rights is a list of basic (fundamental)
rights which must be respected, protected and upheld by government and all organs of state (and in
certain instances by private individuals as well). The constitutions of most modern countries have a
bill of rights (sometimes called a charter)
isiZulu Umqulu Wamalungelo
leli yitemu elichaza iSahluko 2 soMthethosisekelo. Lo Mqulu Wamalungelo uwuhlu
lwamalungelo ayisisekelo okumele ahlonishwe, avikelwe futhi agqugquzelwe
nguhulumeni kanye nazo zonke izinhlaka zikahulumeni (futhi ngaphansi kwezimo
ezithile lokhu kubandakanya nomuntu ngamunye). Imithethosisekelo yamazwe
esimanjemanje amaningi iqukethe imiqulu yamalungelo (lokhu kwesinye isikhathi
kubizwa ngosomqulu, phecelezi i-charter)
isiXhosa Umqulu wamalungelo
ligama elichaza iSahluko 2 somGaqo-siseko. Lo Mqulu waMalungelo luluhlu
lwamalungelo asisiseko (angundoqo) ekumele ahlonitshwe, akhuselwe kwaye agcinwe
ngurhulumente kunye nawo onke amalungu karhulumente (kwaye nakwiimeko ezithile
ngabanye abantu ngabangasese). Imithetho yolawulo yamazwe anamhlanje amaninzi
anomqulu wamalungelo (ngamanye amaxesha libizwa ngokuba liphepha lamalungelo)
Northern Molaokakanywa wa ditokelo
Sotho ke lereo la go hlaloša Kgaolo ya 2 ya Molaotheo. Molaokakanywa wa ditokelo wo ke
lenaneo la ditokelo tša motheo tšeo di swanetšwego go hlompšha, go šireletšwa go
latelwa ke mmušo le ditho ka moka tša naga (gomme mabakeng a mangwe di latelwe
le ke batho fela). Melaotheo ya dinaga tša sebjale ka bontši e na le molaokakanywa wa
ditokelo (dinakong tše dingwe e bitšwa lengwalo la tumelelo)
isiNdebele UmTlolo wamaLungelo
Leli kulithemu elihlathulula isiGaba 2 soMthethosisekelo. Lo mTlolo wamaLungelo
kulirhelo lamalungelo wokuthoma (asisekelo) okufanele ahlonitjhwe, avikelwe begodu
aphakanyiswe ngurhulumende kanye namanye amaphiko wombuso (kanti kezinye
iinkhathi aqiniswe babantu abangeqadi). Imitethosisekelo yeenarha ezinengi
zesimodeni zinomtlolo wamalungelo wobuntu (ngesinye isikhathi ubizwa ngetjhatha)
Setswana Molaotlhomo wa Ditshwanelo
ke lereo le le tlhalosang Kgaolo 2 ya Molaotheo. Molaotlhomo ono wa Ditshwanelo ke
lenane la ditshwanelo tsa motheo (botlhokwa) tse di tshwanetseng go tlotlwa, go
sirelediwa le go tshegediwa ke puso le dikarolo tsotlhe tsa mmuso (mme mo
mabakeng a mangwe le batho ka sebele). Melaotheo ya bontsi jwa dinaga tsa
sešweng e na le molaotlhomo wa ditshwanelo (o ka dinako dingwe o bidiwang tšhata)
Sesotho Bili ya Ditokelo
ke lentswe le hlalosang Kgaolo ya 2 ya Molaotheo. Bili ya Ditokelo ke lethathamo la
ditokelo tsa motheo (tsa bohlokwa) tse lokelang ho hlomphuwa, ho sireletswa le ho
tshehetswa ke mmuso le ditho tsohle tsa mmuso (mme maemong a itseng ke batho ka
bo mong). Melaotheo ya dinaha tse tswetseng pele haholo e na le bili ya ditokelo (eo
ka dinako tse ding e bitswang tjhatara)
Tshivenda Mulayotibe wa Pfanelo
ndi themo ḽi ṱalutshedzaho Ndima ya 2 ya Ndayotewa. Mulayotibe uyu wa Pfanelo ndi
mutevhe wa pfanelo dza mutheo (dza ndeme) dzine dza tea u ṱhonifhiwa, na u
tsireledzwa na u bveledzwa nga muvhuso na khethekanyo dzoṱhe dza shango (nahone
kha dziṅwe nyimele nga vhathu vha phuraivethe na vhone). Ndayotewa ya mashango
manzhi o bvelelaho i na mulayotibe wa pfanelo (nga huṅwe u vhidzwa u pfi
thendelanonzwiwa)
Afrikaans Handves van Regte

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 is die term wat Hoofstuk 2 van die Grondwet beskryf. Dit is ’n lys basiese (fundamentele)
regte wat deur die regering en alle staatsorgane (en in sekere gevalle ook deur privaat
individue) gerespekteer, beskerm en gehandhaaf moet word. Die grondwette van die
meeste moderne lande het ’n handves van regte (in Engels soms ’n “charter” genoem)
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
isiZulu Igatsha likahulumeni
Leli yigama elitholakala kuthiyori yomthethosisekelo kumagatsha amathathu kahulumeni
ngokuvamile ayahlukaniswa kwelinye igatsha uma kucocwa ngomgomo
wokwehlukaniswa kwamandla. Lawa magatsha amathathu kuyisishayamthetho,
isigungu kanye nomthetho
isiXhosa ISebe likarhulumente
Igama elisetyenziswa kwizifundo zoMgaqo Siseko elichaza iintsika ezintathu
zikarhulumente ezahlukanisiweyo xa kuxoxwa ngokwahlukaniswa kwamandla. Ezi
ntsika zintathu yinkqubo yowiso mthetho (i-legislature), inkqubo yolawulo (i-executive)
nenkqubo yezobulungisa (i-judiciary)
Northern Lekala la mmušo
Sotho Leina le le fiwago teoring ya molaotheo go dikokwane tše tharo tša mmušo tšeo gantši
di kago fapantšhwa ge go ahlaahlwa thutišo ya kgaoganyo ya maatla. Dikokwane tše
tše tharo ke lekgotlapeamelao, bolaodi le boahlodi
isiNdebele Iphiko/igatja likarhulumende
Igama leli livezwe kuthiyori yomthethosisekelo kwiinsika ezintathu zikarhulumende
ngokuvamileko ziyahlukaniseka kwenye lokha nakukhulunywa ngomthetho
wokuhlukaniswa kwamandla. Lezi iinsika ezintathu zisibethamthetho, isigungu kanye
nomthetho
Setswana Lekala la puso
Leina le le newang maphata a mararo a puso mo tioring ya molaotheo a gantsi a
farologanngwang fa go buisanwa ka ntlha ya kgaoganyo ya dithata. Maphata ano ke
kgotlatheomolao, khuduthamaga le bosiamisi
Sesotho Lekala la mmuso
Lebitso le fanwang kgopolong ya motheo ho diphilara tse tharo tsa mmuso tseo
hangata di arohanngwang ha ho sekasekwa ho arolwa ha thuto ya matla. Diphilara
tsena tse tharo ke mokgatlo wa melao ya naha, bolaodi le boahlodi
siSwati Ligatja lahulumende
Ligama lelisetjentiswa kutiyori yetemtsetfosisekelo lelisho tinsika letintsatfu tembuso
ngalokuvamisile letehlukile kuleyo naleyo nakukhulunywa ngesimiso sekuhlukaniswa
kwemandla. Letinsika letintsatfu sishayamtsetfo, sigungu lesiphetse kanye neluphiko
lwetebulungiswa
Tshivenda Davhi ḽa muvhuso
Dzina ḽo ṋewaho kha thyori ya ndayotewa ḽi ḽa thikho tharu dza muvhuso dzine kanzhi
dza fhambanywa musi hu tshi reriwa nga ha pfunzo ya u fhandekanywa ha maanḓa.
thikho idzi tharu ndi vhusimamilayo, vhulanguli na vhuhaṱuli
Xitsonga Rhavi ra mfumo
Rito leri ri nyiketiwaka thiyori ya vumbiwa eka maphuphu manharhu ya mfumo lama
rhavi rin’wana ri talaka ku hambanyisiwa eka rin’wana loko ku buriwa hi doktrini ya ku
avanyisiwa ka matimba. Maphuphu lama manharhu i palamende, huvo ya vaholobye
na tindzawulo na swa vuavanyisi bya tikhoto
Afrikaans regeringsvertakking
In konstitusionele teorie, die woord wat gebruik word om te verwys na een van die drie
pilare van die regering. Die drie regeringspilare word normaalweg van mekaar
onderskei wanneer die leerstuk van die skeiding van magte ter sprake is. Die drie
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pilare is die wetgewende gesag, die uitvoerende gesag en die regbank

Case Law
a term describing the decisions of the courts and which are reported in the Law Reports
isiZulu Case law
leli yitemu elichaza izinqumo zenkantolo okubikwe ngazo eMibikweni Yomthetho (Law
Reports)
isiXhosa Umthetho wetyala
ligama elichaza izigqibo zeenkundla nekunikwe ingxelo ngazo kwiNgxelo zoMthetho
Northern Kgoboketšo ya diphetho tša semolao tša dikgorotsheko
Sotho ke lereo leo le hlalošago diphetho tša dikgorotsheko gape tšeo di begilwego ka go Law
Reports
isiNdebele Iinqunto zekhotho ezisembikweni wezoMthetho
Leli kulithemu elihlathulula iinqunto zekhotho kanti ezibikwa ngaphakathi kwe-Law
Reports
Setswana Molao wa dikgetse
ke lereo le le tlhalosang ditshwetso tsa dikgotlatshekelo le tse di begwang mo
Dipegelong tsa Molao
Sesotho Molao wa nyewe
ke lentswe le hlalosang diqeto tsa makgotla mme tse tlalehwang Ditlalehong tsa Molao
Tshivenda Mulandu wa mulayo
ndi themo ḽi shumiswaho u ṱalutshedza tsheo dza khothe dzine dza vhigiwa kha
Mivhigo ya Mulayo
Afrikaans Gewysdes/reg soos ontwikkel deur hofuitsprake
is ’n term wat die beslissings van die howe beskryf, welke beslissings in die Law
Reports gerapporteer word
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
isiZulu Uhlelo lwezokuqinisekisa
Lolu wuhlelo olufuna iNkantolo yezoMthethosisekelo ukuhlola uMthethosisekelo
wokugcina ukuze ukuqinisekisa ukuthi ngabe lokhu kuhambisana neMigomo
yoMthethosisekelo engama-34 equkethwe kuMthethosisekelo osachibiyelwa
isiXhosa Inkqubo yoqinisekiso
Inkqubo apho iNkundla yoMgaqo Siseko ibivavanya uMgaqo Siseko ukuqinisekisa ukuba
uthobela iiNqobo Zesiseko ezingama-34 eziqulethwe kuMgaqo Siseko wethutyana
Northern Tshepetšo ya kgonthišišo
Sotho Tshepetšo ye e nyakago gore Kgorotsheko ya Molaotheo e leke Molaotheo wa mafelelo
go laetša ge e ba o latetše Melawana ye 34 ya Molaotheo ye e lego ka gare ga
Molaotheo wa nakwana
isiNdebele Ihlelo lokuqinisekisa
Kulihlelo elifuna bona iKhotho yezeMthethosisekelo ihlole uMthethosisekelo wokugcina
ukuthola ukuthi mhlambe ukhambisana nemiGomo yoMthethosisekelo ema-34
amumethwe kuMthethosisekelo wesigiyani
Setswana Thulaganyo ya tlhomamiso
Thulaganyo e e tlhokang gore Kgotlatshekelo ya Molaotheo e lekeletse Molaotheo wa
makgaolakgang go swetsa gore a o obametse Dintlhatheo tsa Molaotheo tse 34 tse di
fitlhelwang mo Molaotheong wa nakwana
Sesotho Tshebetso ya netefatso
Tshebetso e hlokang hore Lekgotla la Motheo le hlahlobe Molaotheo wa ho qetela ho
bona hore na o dumellane le Ditheo tsa Motheo wa 34 tse teng Molaotheong wa nakwana

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 siSwati Inchubo yekucinisekisa
Yinchubo ledzinga kutsi Inkantolo Yemtsetfosisekelo ivivinye Umtsetfosisekelo
wekugcina kute icinisekise kutsi ngabe uyahambelana yini naleMitsetfomgomo
Yemtsetfosisekelo lenge-34 lecuketfwe kuMtsetfosisekelo wesikhashana
Tshivenda Maitele a u dzhielwa nṱha lwa tshiofisi
Maitele ane a ṱoḓa uri Khothe ya Ndayotewa i linge Ndayotewa ya u fhedzisela u itela u
vhona arali i tshi tevhedza Milayo ya Ndayotewa ya 34 ire kha Ndayotewa ya
tshifhinganyana
Xitsonga Prosese ya ku tiyisisa
Prosese leyi yi lavaka leswo Khoto ya Vumbiwa yi kambela no tiyisisa Vumbiwa ro
hetelela ku vona loko ri fambisana na minsinya (principles) ya 34 ya Vumbiwa leyi a yi
ri eka Vumbiwa ra xinkadyana
Afrikaans sertifiseringsproses
Die proses ingevolge waarvan die Konstitusionele Hof die finale Grondwet moes toets
om te bepaal of dit aan die 34 Grondwetlike Beginsels soos vervat in die tussentydse
Grondwet voldoen
Checks and balances
The concept 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
isiZulu Ukubhekisisa kanye nokulinganisa
Leli yigama elisondelene nomgomo wezokuhlukaniswa kwamandla, umgomo ochazayo
ukuthi wonke amagatsha amathathu kahulumeni (isishayamthetho, isigungu kanye
nomthetho) azobhekisisa ukusetshenziswa kwamandla wamanye amagatsha amabili
ukuvikela ukudlala ngamandla kanye nokuqinisekisa ukuthi kube nokuziphendulela
kukahulumeni
isiXhosa Inkqubo yokuhlolana
Le ngcamango isondelene kakhulu nenqobo yokwahlukaniswa kwamandla kwaye
inombono wokuba iSebe loburhulumente ngalinye (uwiso mthetho, ulawulo,
ezobulungisa) lihlola umsebenzi welinye, ngenjongo yokuqinisekisa ukusebenza
kakuhle nokuthintela ukusebenzisa kakubi amagunya nokuqinisekisa ukuba
urhulumente osebenzela abantu
Northern Ditekolo le ditekanyetšo
Sotho Kgopolo ye e amantšhwago le thutišo ya kgaoganyo ya maatla yeo e akanyago gore le
lengwe le le lengwe la makala a mararo a mmušo (lekgotlapeamelao, bolaodi le boahlodi)
le tla šoma bjalo ka molekodi (goba poriki) tirišong ya maatla ke makala a mangwe a
mabedi go thibela tšhomišompe ya maatla le go netefatša mmušo wa boikarabelo
isiNdebele Ukutjhejisisa nokunzinzisa
Igama leli lisondelene khulu nomthetho wokuhlukaniswa kwamandla lawo atjhoko bona
woke amagatja amathathu karhulumende (isibethamthetho, isigungu kanye nomthetho)
zizakusebenzisana ukutjhejisisa (or brake) ukusetjenziswa kwamandla ngamanye
amagatja amabili ukuvikela ukudlalwa ngamandla kanye nokuqinisekisa
ukuziphendulela kurhulumende
Setswana Tekanyetso ya dithata
Mogopolo o amana thata le ntlha ya kgaoganyo ya dithata e e solofelang gore lengwe
le lengwe la makala a mararo a puso (kokoanotheomolao, khuduthamaga le bosiamisi)
le tlaa dira jaaka setlhodi (gongwe sekgoreletsi) mo tirisong ya dithata ke makala a
mangwe a mabedi go thibela tiriso e e botlhaswa ya dithata le go netefatsa gore go
nna le puso e e maikarabelo
Sesotho Ditekolo le ditekanyo
Kgopolo e amahanngwang le thuto ya ho arolwa ha matla e lebelletseng hore le leng le
leng la makala a mararo a mmuso (mokgatlo wa melao ya naha, bolaodi le boahlodi) a
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tla sebetsa e le tekolo (kapa boriki) tshebedisong ya matla ke makala a mang a mabedi
ho thibela tshebediso e mpe ya matla le ho etsa bonnete ba hore mmuso o wa ikarabella
Tshivenda Nyokolodzo na nyanḓano
Muṱalukanyo une wa elanesa na pfunzo i elanaho na u fhandekanywa ha maanḓa
hune ha lavhelela uri ḽiṅwe na ḽiṅwe ḽa matavhi mararu a muvhuso (vhusimamilayo,
vhulanguli na vhuhaṱuli) ḽi ḓo shuma sa musedzulusi (kana biriki) kha u shumiswa ha
mafhungo nga ḽiṅwe davhi u itela u thivhela u sa shumiswa zwavhuḓi ha maanḓa na u
khwaṱhisedza muvhuso u re na vhuḓifhinduleli
Xitsonga Checks and balances
Fambiselo leri ri fambisana na doktrini ya ku avanyisiwa ka matimba exikarhi ka
swiyenge swo hambana swa mfumo swa leswo rhavi rin’wana na rin’wana ra mfumo
(ku nga palamende, huvo ya vaholobye na tindzhawulo na vavuavanyisi na ti khoto) va
ta cheka (kumbe ku yimisa matirhelo lama nga ri ku lamanene ya matimba ya marhavi
lama mbirhi ku sivela ku tirhsiwa ka matimba hi ndlela leyi nga ri ku leyinene ku endlela
ku tiyisa leswo mfumo wu tirha hi ku va na vutihlamuleri eka xichava
Afrikaans wigte/remme en teenwigte
’n Konsep wat nou verwant is aan die leerstuk van die skeiding van magte ingevolge
waarvan elk van die drie vertakkings van die regering (die wetgewende gesag, die
uitvoerende gesag en die regbank) as ’n wig (of rem) vir die uitoefening van gesag
deur die ander twee vertakkings sal optree om magsmisbruik te voorkom en
verantwoordbare regering te verseker
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
isiZulu Uhulumeni ohlanganyelwe
Lo uhulumeni owakhiwe ngokuhlanganyelwa abameli abakhethiwe bezinhlangano
zepolotiki ezimbili noma ngaphezulu, ngokuvamile uma ngabe izinhlangano zifumene
iningi lamavoti angaphezu kwama-50% wezihlalo zasephalamende. Ngakho-ke
uhulumeni ubusa ngokwemigomo eyethulwe kwisivumelwano sokusebenzisana
esisayindwa yizinhlangano ezibandakanyeka kuhulumeni ohlanganyelwe
isiXhosa Urhulumente womanyano
Urhulumente oyilwe ngabameli bamaqela epolitiki amabini nangaphezulu, xa iqela
elilodwa lingafumenanga ama-50% ezihlalo kwindlu yowiso mthetho. Lo rhulumente
ulawula ngokwemigaqo ebekwe kwisivumelwano somanyano ekufikelelwe kuso
ngamaqela angena kolo manyano
Northern Mmušo wa mohlakenelwa
Sotho Mmušo wo o bopilwego ka go hlakanelwa ke dikemedi tše di kgethilwego tša mekgatlo
ya dipolitiki ye mebedi goba go feta, gantši ge go se na le wo tee wa mekgatlo wo o
hweditšego bontši bja go feta 50% ya ditulo ka lekgotlapeamelaong. Mmušo ke moka o
buša go ya ka melawana ye e beilwego go kwano ya mohlakanelwa ye e
phethagaditšwego ke mekgatlo ye e tsenetšego tlhakanelo
isiNdebele Urhulumende ohlanganyelweko
Ngurhulumende owakhiwa ngokuhlanganyela bajameli abakhethiweko ababili nanyana
ngaphezulu beenhlangano zepolotiki, lokhu kwenzeka kanengi lokha nakungekho
ihlangano ethole iinhlalo ezingaphezu kwama-50% epalamende. Yeke urhulumende
uzakubusa ngokwemigomo eyethulwe kwisivumelwano sokuhlanganyela esitlikitlwe
ziinhlangano ezingenela ukuhlanganyela
Setswana Puso ya semphato sa nakwana
Puso e e tlhamilweng ke baemedi ba ba tlhophilweng ba makoko a sepolotiki a le
mabedi gongwe go feta, gantsi fa go se lepe la makoko le le boneng ditilo tsa bontsi jo

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 bo fetang 50% mo kokoanotheomolao. Jaanong puso e busa go ya ka dintlhatheo tse
di tlhamilweng mo tumelanong ya semphato sa nakwana ya makoko a a tsenang mo
semphatong sa nakwana
Sesotho Mmuso wa kopanelo
Mmuso o thehilweng ka ho kopana ke baemedi ba kgethilweng ba mekgatlo ya dipolotiki
e mmedi kapa ho feta, hangata ha ho sena mokga o fumaneng bongata bo ka hodimo
ho 50% ba ditulo mokgatlong wa melao wa naha. Jwale mmuso o busa ho latela ditheo
tse hlalositsweng tumellanong ya kopano e fihletsweng ke mekga e kenang
kopanelong
siSwati Hulumende welubumbano
Hulumende lowakhiwa ngekuhlanganyela kwalabo labamelele emacembu etepolitiki
lamabili nome langetulu, ngalokuvamile nangabe kute kulamacembu latfole linyenti
letihlalo letingetulu kwe-50% kusishayamtsetfo. Lowo hulumende-ke ubusa
ngekulandzela imitsetfomgomo lebekwe kuleso sivumelwano selubumbano lawo
macembu lasisayinile
Tshivenda Muvhuso wa ṱhanganelano/hulumenipfarakanywa
Muvhuso wo itwaho ho ṱangana vhaimeleli vho khethiwaho vha mahoro mavhili kana
manzhi a poḽitiki, kanzhi musi hu si na na ḽihoro na ḽithihi ḽo wanaho vhunzhi vhu fhiraho
50% ya madzulo kha buthano ḽa vhusimamilayo. Muvhuso u kona u vhusa u ya nga ha
milayo yo tiwaho kha thendelano ya pfarakanywa yo itwaho nga mahoro o dzhenelaho
kha muvhuso wa ṱhanganelano
Xitsonga Mfumo wa muhlanganyelwa hi mavandla ya tipolitiki yo hambana
Mfumo lowu vumbiwaka hi swirho swa mavandla mambirhi kumbe ku tlula yo hambana
ya tipolitiki loko ku nga ri na vandla ra tipolitiki leri nga kuma ku vhoteriwa hi ntsengo
wo tlula 50% wa switulu epalamende. Kutani mfumo wo vumbiwa hi mavandla yo
hambana-hambana wu fuma hi ku landza minsinya (princiles) leyi mavandla ya tipolitiki
ya nga twanana hi yona loko ya nghenela ntwanano wa mfumo wa muhlanganyelwa
Afrikaans Koalisieregering
’n Regering wat gesamentlik deur die verkose verteenwoordigers van twee of meer
politieke partye gevorm word, gewoonlik wanneer geen van die partye ’n meerderheid
van meer as 50% van die setels in die wetgewende gesag behaal het nie. ’n
Koalisieregering regeer ooreenkomstig beginsels vervat in ’n koalisieooreenkoms wat
gesluit is deur die partye wat tot die koalisie toegetree het
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 publically criticize 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
isiZulu Ukuziphendulela kukawonkewonke
Lo wumgomo othi wonke amalunga esigungu afanele ukuziphendulela ngezinqumo
nangezenzo zawo wonke amalunga esigungu kanti kufanele, angagxeki ngokusobala
izitatimenti noma izenzo zamalunga awozakwabo esigungu. Lo mgomo ususelwa
phezu kombono othi amalunga esigungu segatsha likahulumeni asebenza
njengeqembu futhi amukela zonke izinqumo zesigungu
isiXhosa Uxanduva oluhlanganeyo
Inqobo ethi ilungu ngalinye lebhunga elilawulayo (iexecutive) linoxanduva ngezigqibo
zamanye amalungu eli bhunga, kwaye akufanelanga ukuba ligxeke phambi
kowonkewonke intetho okanye izenzo zamanye amaqela ebhunga elilawulayo. Lo
umgaqo usekelwe kwingcamango yokuba onke amalungu ebhunga elilawulayo
asebenza njengeqela kwaye kufanele kubekho ukuvumelana ngezigqibo
ezibalulekileyo zebhunga elilawulayo
Northern Boikarabelo bja mohlakanelwa
Sotho Molawana wa gore moleloko yo mongwe le yo mongwe wa bolaodi o na le boikarabelo
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go diphetho le ditiro tša maloko ka moka a mangwe a bolaodi gomme o swanetše, ka

gona, a se sole phatlalatša ditatamente goba ditiro tša maloko ka yena a bolaodi.
Molawana wo o theilwe go kakanyo ya gore maloko a lekala la bolaodi la mmušo a dira
bjalo ka sehlopha le go dumelela dipheto ka moka tše bohlokwa tša bolaodi
isiNdebele Ukuziphendulela komuntu woke
Kumgomo lowo othi qobe lilunga lesigungu kufanele liziphendulele ngeenqunto kanye
nezenzo zalo zamalunga wesigungu begodu kufanele, godu, ungahlabi epepeneneni
iintatimende nanyana izenzozamalunga wakho wesigungu. Imigomo yakhelelwe
phezuz kwekolelo yokuthi amalunga wegatja lesigungu sikarhulumende asebenza
njengesiqhema begodu amukela zoke iinqunto zesigungu
Setswana Maikarabelo a a tlhakanetsweng
Ntlhatheo ya gore tokololo nngwe le nngwe ya khuduthamaga e rwele maikarabelo a
ditshwetso le dikgato tsa ditokololo tse dingwe tsotlhe tsa khuduthamaga mme ka jalo
ga e a tshwanela go kgala mo phatlhalatseng dipolelo gongwe dikgato tsa
bakaulengwe ba yona mo khuduthamageng. Ntlhatheo eno e theilwe mo tumelong ya
gore ditokololo tsa lekala la khuduthamaga la puso di diragatsa jaaka setlhopha mme
di amogela ditshwetso tsotlhe tsa botlhokwa tsa khuduthamaga
Sesotho Boikarabello bo kopanetsweng
Theo eo ho yona setho ka seng sa bolaodi se ikarabellang bakeng sa diqeto le diketso
tsa ditho tse ding tsohle tsa bolaodi mme se lokela, kahoo, ho se nyatse dipolelo kapa
diketso tsa ditho tse ding tsa bolaodi. Theo e thehilwe kgopolong ya hore ditho tsa
lekala le phahameng la mmuso di sebetsa e le sehlopha mme di dumellana le diqeto
tsohle tse bohlokwa tsa bolaodi
siSwati Kutilandza ngekuhlanganyela
Ngumtsetfomgomo lotsi lelo nalelo lunga lesigungu liyatilandza ngetincubo netento
tawo onkhe lamanye emalunga wsigungu ngaleyo ndlela-ke, kufanele kutsi lingatihlabi
emkhatsini emmangweni titatimende nome tento tebalingani balo labanalo esigungwini.
Lomtsetfomgomo weyame ekutseni emalunga esigungu saleligatja lahulumende
asebenta njengelicembu futsi avumelana ngato tonkhe tincumo letibalulekile tesigungu
Tshivenda Vhuḓifhinduleli ha roṱhe
Mulayo wa uri muraḓo muṅwe na muṅwe wa vhulanguli u na vhuḓifhinduleli ha tsheo
na nyito dza miṅwe miraḓo yoṱhe ya vhulanguli na u tea, u sa sasaladza phanḓa ha
nnyi na nnyi zwiṱaṱamennde kana nyito dza miraḓo ya vhulanguli. Mulayo uyu wo
ḓisendeka nga khumbulelo ya uri miraḓo ya davhi ḽa muvhuso ḽa vhulanguli i shuma na
u tendela tsheo dzoṱhe dza ndeme dza ndeme
Xitsonga Vutihlamuleri lebyi hlanganyeriweke
Nsinya wa leswo xirho na xirho xa huvo ya vaholobye xi na vutihlamuleri eka swiboho
na magoza ya swirho hinkwaswo swa huvo ya vaholobye na swona, xirho a xi faneli ku
sola erivaleni switatimende na magoza ya swirhokulobye swa huvo ya vaholobye.
Nsinya (principle) lowu wu akeriwe ehenhla ka ntwisiso wa leswo huvo ya vaholobye i
rhavi ra mfumo leri ri tirhaka tani hi xipani kumbe ntlawa wun’we na swona lowu wu
amukelaka hinkwaswo swiboho swa nkoka swa huvo ya vaholobye
Afrikaans gemeenskaplike verantwoordbaarheid
Die beginsel dat elke lid van die uitvoerende gesag aanspreeklik is vir die besluite en
optrede van al die ander lede van die uitvoerende gesag en gevolglik nie die uitlatings
of optrede van medelede van die uitvoerende gesag in die openbaar behoort te
kritiseer nie. Hierdie beginsel is gegrond op die aanname dat die lede van die
uitvoerende vertakking van die regering as ’n span saamwerk en alle belangrike
besluite van die uitvoerende gesag goedkeur
Commission of Inquiry
A commission of inquiry is one of many bodies available to the government to inquire into various
issues. Commissions report findings, give advice and make recommendations. While their findings
are not legally binding, they can be highly influential.

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 isiZulu Inkomishani yezophenyo
Inkomishani yezophenyo ngenye yamaziko amaningi akhona kuhulumeni ephenya
ngezindaba ezahlukahlukene. Izinkomishani zibika ngalokho ezikutholile, zinikeza
amacebo futhi zithatha izinqumo. Njengoba lokho okutholwa yizinkomishani akunazo
izibophezelo zomthetho, kodwa izinqumo zenkomishani zingaba nomthelela omkhulu
isiXhosa IKhomishini yoPhando
Ikhomishini yophando yenye yezixhobo ezikhoyo kwarhulumente ukuphanda iingxaki
ezithile. Iikomishini zinika ingxelo kwaye zinike neengcebiso. Nangona iziphumo zabo
zingenazibophelelo zomthetho, zixabisekile kwaye zinempembelelo engamandla
Northern Khomišene ya dinyakišišo
Sotho Khomišene ya dinyakišišo ke ye nngwe ya mekgatlo ye mentši ye e lego gona go
mmušo go nyakišiša ditaba tša go fapanafapana. Dikhomišene di bega dikutullo, di fa
maele le go dira ditšhišinyo. Le ge dikutullo tša bona e se tše di tlamago ka molao, di
ka ba le khuetšo ye kgolo kudu
isiNdebele Ikomitjhani yezephenyo
Ikomitjhani yephenyo ngelinye lamaziko amanengi akhona kurhulumende ukuphenya
izinto ezithize. Amakomitjhani abika lokho akutholileko, anikela iinyeleliso begodu enza
iinqunto. Kanti lokho akutholileko akunasibopho somthetho, wona angaba nomthelela
omkhulu
Setswana Khomišene ya Dipatlisiso
Khomišene ya dipatlisiso ke nngwe ya ditheo tse dintsi tse di leng gona mo pusong go
batlisisa merero e e farologaneng. Dikhomišene di bega diphitlhelelo, di naya kgakololo
mme di dira dikatlenegiso. Le fa diphitlhelelo tsa tsona di sa tlame semolao, di ka nna
le tshusumetso e kgolo
Sesotho Komishene ya dipatlisiso
Komishene ya dipatlisiso ke o mong wa mekgatlo e mengata e fumanehang mmusong
ho batlisisa ka dintho tse fapaneng. Dikomishene di tlaleha diphumano, di fana ka
keletso mme di etsa ditlhahiso. Le hoja diphumano tsa yona di sa tlame ka molao, di
ka ba le tshusumetso e matla
siSwati Ikhomishini yeluphenyo
Ikhomishini yeluphenyo ngulenye yemitimba lekhona hulumende lawusebentisela
kuphenya tindzaba letahlukahlukene. Emakhomishini abika ngaloko lakutfolile, anike
seluleko aphindze futsi anike netincomo. Nanome loko lokusuke kutfolwe yikhomishini
kungabopheleli ngekwemtsetfo, kodvwa kungaba nemtselela lomkhulu
Tshivenda Khomishini ya Ṱhoḓisiso
Khomishini ya ṱhoḓisiso ndi tshiimiswa tshithihi kha zwinzhi tshi re hone tsha muvhuso
tsha u sedzulusa kha zwiteṅwa zwo fhambanaho. Khomishini i vhiga mawanwa, u ṋea
ngeletshedzo na u ita themendelo. Musi mawanwa avho a sa vhofhi lwa mulayo, fhedzi
a na ṱhuṱhuwedzo khulwane
Xitsonga Khomixini ya ndzavisiso
Khomixini ya ndzavisiso hi xin’wana xa swivumbeko leswi tirhisiwaka hi mfumo ku
endla ndzavisiso hi swilo swo hambana-hambana. Tikhomixini ti vika hi vuyelo bya
mindzavisiso ya tona, ku nyiketa switsundzuxo no endla swibumabumelo. Hambi leswi
vuyelo bya tikhomixini byi nga boheki hi nawu, byi nga va bya nkoka swinene lebyi
kucetelaka van’wana ku swi landzelela
Afrikaans kommissie van ondersoek
’n Kommissie van ondersoek is een van vele liggame wat tot die regering se beskikking
is om ’n verskeidenheid kwessies te ondersoek. Kommissies lewer verslag van hulle
bevindings, gee raad en doen aanbevelings. Hoewel die bevindings van kommissies
nie regtens bindend is nie, kan dit baie invloedryk wees
Common Law
the law which is not written down in legislation
isiZulu Common law
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lona ngumthetho ongabhaliwe phansi

isiXhosa Umthetho oxhaphakile
ngumthetho ongabhalwanga phantsi kowiso-mithetho
Northern Melao go ya ka diphetho tša kgorotsheko
Sotho ke molao wo o sa ngwalwago ka go tlhakamolao ke lereo leo le hlalošago diphetho tša
dikgorotsheko gape tšeo di begilwego ka go Law Reports
isiNdebele Umthetho ojayelekileko ongakaphasiswa
Kumthetho ongakatlolwa phasi emthethweni ophasisweko epalamende
Setswana Molao wa tlwaelo
ke molao o o sa kwalwang mo melaong
Sesotho Molao o tlwaelehileng
ke molao o sa ngolwang molaong
Tshivenda Mulayo wa nḓowelo
ndi mulayo u songo tou ṅwalwa fhasi kha theo ya mulayo
Afrikaans Gemenereg
is die reg wat nie in wetgewing neergeskryf is nie
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
isiZulu Ukuba nonembeza
Ukuxwaya udaba lwenhlonipho noma indlela yokuziphatha kwizenzo zomuntu kanye
nomoya wokufuna ukwenza okulungile noma okungalungile, kungabhekwa ukuthi
mhlawumbe lokhu kuxwaya kudabuka kwizinkolelo zenkolo noma kwizibopho
zokuziphatha ezingahambisani nezinkolelo nakancane
isiXhosa Isazela
Ulwazi lokuziphatha ngendlela efanelekileyo nomnqweno wokwenza izinto
ezifanelekileyo hayi ezingafanelekanga, nokuba ngaba olo lwazi luqhutywa ziinkolo
ezisekelwe ecaweni okanye iinkolo zomphakathi
Northern Letswalo
Sotho Temogo ya karolo ya boitshwaro goba molao wa boitshwaro go boitshwaro bja motho
ka kgothaletšo ya go kgetha go loka godimo ga go se loke, go sa šetšwe ge e ba
temogo yeo e tšwa go ditumelo tša bodumedi goba go maitlamo a melawana ya
boitshwaro ao a sa tswalanego felo le ditumelo tša bodumedi
isiNdebele Ukuba nonembeza
Isenzo sokuyelela ukuhlonipha nanyana ukuziphatha komuntu kundawonye
negandelelo elinyula okuhle nanyana okumbi, kungaqalwa ukuthi mhlambe lokho
kuyelela kudabuka kwiinkolelo zezekolo nanyana kwiimbophelelo zemigomo
yokuzibopha okungakhambisani neenkolelo zekolo
Setswana Letswalo
temogo ya ntlha ya maitsholo a motho mmogo le keletso ya go tlhopha se se siameng
mo boemong jwa se se sa siamang, go sa kgathalesege gore a temogo eo e theilwe
mo tumelong ya sedumedi gongwe mo maitlamong a maitsholo a a siameng a a sa
amaneng ka gope le bodumedi
Sesotho Letswalo
temoho ya karolo ya boitshwaro malebana le kamoo motho a itshwarang kateng
hammoho le boikemisetso ba ho kgetha botle ho bobe, ho sa tsotellehe hore na
temoho eo e tswa ditumelong tsa bodumedi kapa ditabeng tsa boitshwaro tse sa
amaneng le ditumelo tsa bodumedi hohang
siSwati Satelo
kucaphela indlela yekutiphatsa nome indlela levumelekile yekwenta tintfo Kanye
nenshisekelo yekukhetsa kwenta lokulungile kunalokungakalungi, akukhatsalekile kutsi

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 ngabe loko kucaphela yenkholo nome kutinikela ekwenteni lokuvumelekile
akukaphatselani netenkholo
Tshivenda Luvalo
U ḓivha zwa mikhwa kana tshiteṅwa tsha vhuḓifari tsha zwiito zwa muthu na u swela u
funa zwivhuya kha zwivhi, hu si na ndavha uri u ḓivha hu khou bva kha zwine zwa
tenda zwa vhurereli kana u bva kha vhuḓikumedzeli ha mikhwa vhu sa elani na zwine
wa tenda zwa vhurereli na kathihi
Xitsonga Ripfalo
ku twisisa leswo matikhomelo lamanene hi swa ti-ethics ta munhu swi endla leswo a
tiva swo lulama na swo biha, hambi ku ri loko matikhomelo lama ya seketeriwe hi
ripfumelo ra vugandzeri (vukhongeri) kumbe hi xiseketelo xa swa ti-ethics leswi swi
nga khumbananiku na swa ripfumelo ra vugandzeri
Afrikaans Gewete
’n Persoon se bewustheid dat sy of haar gedrag ’n morele of etiese sy het, tesame met
die behoefte om dit wat reg is bo dit wat verkeerd is te verkies, ongeag of daardie
bewustheid spruit uit godsdienstige oortuigings of etiese verpligtings wat geensins met
godsdienstige oortuigings verband hou nie
Constitution
“Constitution” can be understood both broadly and narrowly. In the broad sense it includes the entire
body of rules (written and unwritten) governing the exercise of state authority in a particular state, as
well as the relationship between the citizens of a state and the state authorities. A constitution also
embodies the will of the people, reflecting the popular and current values. A constitution must,
furthermore, enjoy the support of the majority of the people in a state. In short, the constitution of a
country sets out the legal rules by which the country is governed or managed. It also sets out the
limits to these powers. In the narrow sense it refers to the written document in which these rules are
contained. The South African Constitution is the Constitution of the Republic of South Africa, 1996,
unless we refer specifically to the interim Constitution Act 200 of 1993
isiZulu Umthethosisekelo
“Umthethosisekelo” ungachazwa ngokubanzi ngokunjalo futhi uchazwe ngokugxilile.
Uma uchazwa ngokubanzi ubandakanya yonke imithetho (ebhaliwe nengabhaliwe)
elawula ukusetshenziswa kwamandla namagunya ombuso ezweni elithile, kanye
nobudlelwano phakathi kwezakhamuzi zezwe kanye neziphathimandla zalelo lizwe.
Umthethosisekelo futhi uwuphawu olumele intando yabantu, olubonisa izimo-mpilo
ezilandelwa kakhulu ngabantu kanye nezimo-mpilo zesimanjemanje. Ngaphezu
kwalokho, umthethosisekelo kumele usekelwe yiningi labantu ezweni. Ngamafuphi,
umthethosisekelo wezwe ubeka imithetho okumele isetshenziswe ukuphatha noma
ukulawula izwe. Futhi ubeka imikhawulo ekusetshenzisweni kwalawa mandla
namagunya. Incazelo egxilile yomthethosisekelo isho umbhalo oqukethe le mithetho.
UMthethosisekelo weNingizimu Afrika nguMthethosisekelo weRiphabhulikhi
yaseNingizimu Afrika, we-1996, ngaphandle-ke uma kuqondiswe kuMthetho
Womthethosisekelo wesikhashana wama-200 we-1993
isiXhosa Umgaqo-siseko
“Umgaqo-siseko” unokuqondwa ngokuphangaleleyo nangokunyiniweyo (encinane).
Ngokwengqiqo ephangaleleyo uquka yonke imiyalelo yemithetho (ebhaliweyo
nengabhalwanga) elawula ukusetyenziswa kwegunya likarhulumente kwilizwe ethile,
kunye nolwalamano phakathi kwabemi belizwe namagunya oburhulumente. Umgaqo-
siseko uphinde ubandakanye intando yabantu, kubonakalisa ixabiso elithandwayo
nelikhoyo. Umgaqo-siseko kufuneka, ngokukodwa, wonwabele inkxaso yesininzi
sabantu belizwe. Ngokufutshane, umgaqo-siseko welizwe ngokusemthethweni ubeka
imigaqo yokulawula okanye yokuphatha ilizwe. Ikwabeka kwakhona imida kula
magunya. Ngokwengqiqo enyiniweyo (encinane) ubhekisela kumqulu obhaliweyo apho
le mithetho iqulethwe khona. UmGaqo-siseko waseMzantsi Afrika nguMgaqo-siseko
weRiphabhliki yoMzantsi Afrika, 1996, ngaphandle kokuba sibhekisele ngqo

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kummiselo (act) woMgaqo-siseko we-200 ka-1993

Northern Molaotheo
Sotho “Molaotheo” o ka kwešišwa bobedi ka bophara le bokopana. Ka bophara e akaretša
melao ka moka ga yona (yeo e ngwadilwego le yeo e sa ngwalwago) yeo e laolago
tshepedišo ya bolaodi bja naga pušong ye e rilego, gammogo le tswalano gare ga
badudi ba naga le bolaodi bja naga. Molaotheo gape o ama thato ya batho, go bontšha
ditumelo ka ga boitshwaro le dilo tše di lego bohlokwa tše ratwago ke batho gape tša
mohla woo. Molaotheo gape o swanetše go thekgwa ke bontši bja batho ba naga. Ka
bokopana, molaotheo wa naga o hlaloša melao ya semolao yeo e bušago goba e
laolago naga. E bega gape magomo a maatla a. Ka bokopana o šupa tokomane ye e
ngwadilwego yeo ka go yona go nago le melao ye. Molaotheo wa Afrika Borwa ke
Molaotheo wa Rephabliki ya Afrika Borwa, wa 1996, ka ntle ga ge fela re šupa Molao
wa 200 wa 1993 wa Molaotheo wa nakwana
isiNdebele Umthethosisekelo
UMthethosisekelo “Constitution” ungazwisiswa kabili ngobufitjhazana
nangokunabileko. Ngokunabileko ufaka iziko loke lemithetho (etloliweko
nengakatlolwa) elawula ukusetjenziswa kwamandla wombuso ebujameni obuthileko,
kanye nobudlelwano obuphakathi kwezakhamizi zombuso kanye nabaphathi bombuso.
Umthethosisekelo nawo umumethe isifiso sabantu, esiveza iimfundiso ezidumileko
nezesikhathi sanje. Ngaphezu kwalokho, umthethosisekelo kufanele usekelwe bunengi
babantu embusweni. Ngobufitjhazana, umthethosisekelo wenarha wendlala imithetho
esetjenziswa ukubusa nanyana ukuphatha inarha. Umthethosisekelo begodu
iphungula amandla lawa. Ngobufitjhazana itjho incwadi etloliweko lapho imithetho le
itlolwe khona. UMthethosisekelo weSewula Afrika kuMthethosisekelo weRephapliki
yeSewula Afrika, ka 1996, ngaphandle nje kokuthi sitjho ngokuhlukileko
UMthethosisekelo wesigiyani, uMthetho 200 ka 1993
Setswana Molaotheo
"Molaotheo" o ka tlhaloganngwa ka bophara le e seng ka bophara. Ka bophara o
akaretsa melawana yotlhe (e e kwadilweng le e e sa kwalwang) e e laolang go
diragadiwa ga dithata tsa puso mo nageng e e rileng, gammogo le dikamano
magareng ga baagi ba naga le bothati jwa naga. Gape molaotheo o akaretsa keletso
ya batho, go bontsha maitsholo a a ratwang le a ga jaana. Mo godimo ga moo,
molaotheo o tshwanetse go tshegediwa ke bontsi jwa batho mo nageng. Ka
bokhutshwane, molaotheo wa naga o tlhagisa melawana ya semolao e naga e
laolwang le go tsamaisiwa ka yona. Gape o tlhoma ditekanyetso tsa dithata tseno. Fa e
se ka bophara o kaya lekwalo le le kwadilweng le melawana eno e fitlhelwang mo go
lona. Molaotheo wa Aforikaborwa ke Molaotheo wa Rephaboliki ya Aforikaborwa, wa
1996, kwa ntle ga fela re bua ka tlhamalalo re totile Molao wa nakwana wa Molaotheo
wa bo200 wa 1993
Sesotho Molaotheo
“Molaotheo” o ka utlwisiswa ka bophara le ka bosesane ka bobedi. Ka kutlwisiso e
pharalletseng o akarelletsa mekgatlo yohle ya melao (e ngotsweng le e sa ngolwang) e
laolang tshebetso ya matla a mmuso naheng e itseng, hammoho le kamano dipakeng
tsa baahi ba naha le ba boholong ba naha. Molaotheo o boetse o akarelletsa thato ya
batho, ka ho bonahatsa le ditekanyetso tse tlwaelehileng le tsa hajwale. Molaotheo, o
lokela hape hore, o natefelwe ke tshehetso ya batho ba bangata naheng. Ka
bokgutshwanyane, molaotheo wa naha o hlalosa melao eo ka yona naha e laolwang
mme e tsamaiswang. O boetse o beha meedi ya matla ana. Ka bosesanyane o bolela
tokomane e ngotsweng eo melao ena e leng kahare ho yona. Molaotheo wa Afrika
Borwa ke Molaotheo wa Rephaboliki ya Afrika Borwa, 1996, ntle le haeba re bua ka ho
toba ka Molao wa nakwana wa Molaotheo wa 200 wa 1993
Tshivenda Ndayotewa
“Ndayotewa” i nga pfeseswa lwo ṱanḓavhuwaho na lu songo ṱanḓavhuwa nga u
angaredza i katela milayo yoṱhe (yo ṅwalwaho na i songo ṅwalwa) ine ya langa nyito dza
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 vhulangi ha shango nga maanḓa shango. Nga u pfufhifhadza, ndayotewa ya shango i
bvisela khagala milayo ire mulayoni ine ya shango ḽa vhuswa kana u langiwa ngayo. I
vha I khou bula hune maanḓa ayo a guma. Nga u tou nweledza ndi ḽiṅwalwa ḽo
dodombedzwaho ḽine ḽa vha na milayo iyi. Ndayotewa ya Afrika Tshipembe ndi
Ndayotewa ya Riphabuḽiki ya Afrika Tshipembe, ya 1996, nga nnḓani ha musi ri khou tou
amba fhedzi ro sedza Mulayo wa Ndayotewa ya tshifhinganyana wa vhu 200 wa 1993
Afrikaans Grondwet
“Grondwet” het ’n breë en ’n eng betekenis. In die breë sin sluit dit al die reëls (geskrewe
en ongeskrewe) in wat die uitoefening van staatsgesag in ’n bepaalde staat, sowel as die
verhouding tussen die staat se burgers en die owerhede, beheers. ’n Grondwet
beliggaam ook die wil van die mense en weerspieël die algemene waardes wat op
daardie stadium geld. ’n Grondwet moet verder die steun van die meerderheid mense in
die staat geniet. Kortweg gestel sit die grondwet van ’n land die regsreëls uiteen
waarvolgens die land regeer of bestuur word. Dit sit ook die perke op hierdie
bevoegdhede uiteen. In die eng sin verwys dit na die geskrewe dokument waarin hierdie
reëls vervat word. Die Suid-Afrikaanse Grondwet is die Grondwet van die Republiek van
Suid-Afrika, 1996, tensy ons spesifiek na die tussentydse Grondwet 200 van 1993 verwys
Constitutional democracy
also known as 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
isiZulu Idemokhrasi yezomthethosisekelo
Lokhu okwaziwa njengedemokhrasi yobulibherali, le yindlela ejwayelekile
yedemokhrasi lapho izakhamuzi zibandakanyeka kungamakhetho wonke akhululekile
nalawo angathathi ingxenye ohlelweni lwezokuncitisana ngokwepolitiki, kodwa
umthethosisekelo wendlala kahle imingcele yamandla okufanele asetshenziswe yilabo
bameli abakhethiwe ukuba bamele abantu
isiXhosa Idemokhrasi yeSiseko
Iphinde ibizwe njengedemokhrasi yenkululeko, luhlobo oluqhelekileyo lwedemokhrasi
yabemi apho abemi bethatha inxaxheba rhoqo kukhetho olukhululekileyo,
nolufanelekileyo kwinkqubo yokhuphiswano kwezopolitiko, kodwa apho uMgaqo
Siseko ucacisa imida yamagunya asetyenziswa ngabamele abantu
Northern Temokrasi ya Molaotheo
Sotho Gape e tsebjwa bjalo ka temokrasi ya tokologo, se ke sebopego sa go tlwaelega sa
temokrasi ya kemedi moo badudi ba kgathago tema dikgethong tša kgafetšakgafetša,
tša mahala gape tša toko tshepetšong ya phadišano ya politiki, eupša molaotheo o aba
magomo a maatla a a swanetšego go dirišwa ke dikemedi tšeo di kgethilwego go
emela batho
isiNdebele Idemokhrasi yezoMthethosisekelo
Lokhu okwazeka njengedemokhrasi yamalibherali, le yindlela edumileko yobujameli
bedemokhrasi lobo izakhamizi ezingazibandakanya emakhethweni asemthethweni,
akhululekileko nangathathi ihlangothi ehlelweni lezepolotiki eliphikisanako, kodwana
umthethosisekelo uyabeka imikhawulo yamandla afanele ukusetjenziswa ngilabo
bajameli abakhethiweko ukujamela abantu
Setswana Temokerasi ya molaotheo
e gape e itsegeng jaaka temokerasi ya boliberale, seno ke mofuta o o tlwaelegileng wa
temokerasi ya kemedi moo baagi ba nnang le seabe mo ditlhophong tsa gangwe le
gape tse di gololesegileng e bile di sa tseye letlhakore mo thulaganyong e e
gaisanelwang ya sepolotiki fela molaotheo o baya dipeelo tsa dithata tse di ka
diragadiwang ke baemedi ba ba tlhophiwang go emela batho
Sesotho Demokrasi ya molaotheo
e boetseng e tsejwa ka hore ke demokrasi ya bolokolohi, ona ke mofuta wa demokrasi
ya boemedi eo ho yona baahi ba nkang karolo dikgethong tse tlwaelehileng, tse
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lokolohileng mme tse nang le toka tshebetsong ya dipolotiki ya tlhodisano empa

molaotheo o hlalosa ditekanyetso tsa matla tse tla sebediswa ke baemedi bao ba
kgethilweng ho emela batho
siSwati Intsandvo yelinyenti ngekwemtsetfosisekelo
Iphindze futsi yatiwe ngekutsi yintsandvo yelinyenti levumela emalungelo abo bonkhe
bantfu, lena yindlela leyetayelekile yekumemelela intsandvo yelinyenti lapho takhamuti
tityimbandzakanya njalo, lukhetfo lolukhululekile nalolungavuni luhlangotsi kunchubo
yetepolitiki yekucudzelana kodvwa umtsetfosisekelo uyayibeka imikhawulo yemandla
lekumele kutsi entiwe ngulabo labakhetsiwe lababamelele kutsi bamele bantfu
Tshivenda Demokirasi ya ndayotewa
I dovha ya ḓivhiwa sa demokirasi ya yo ṱanḓavhuwaho, holu ndi lushaka lwo
ḓoweleaho lwa demokirasi ya vhuimeleli hune vhadzulapo vha dzhenelela kha khetho
dza misi yoṱhe dzo vhofholowaho dzi re kwadzo nga nḓila ya maitele a muṱaṱisano a
politiki fhedzi ndayotewa i vhea mikano ya maanḓa ane a tea u shumiswa nga avho
vhaimeleli vha khethiwaho u imelela vhathu
Xitsonga Xidimokrasi xa fambiselo ra Vumbiwa
lexi xi tlhelaku xi tiviwa tani hi xidimokrasi xa liberali (liberal democracy), lebyi i
vuyimeriwa bya ntolovelo bya xidimokrasi laha vaaka-tiko hinkwavo va nghenelaka hi
ku ntshunxeko minkarhi hinkwayo eka nhlawulo lowu ku phikizaniwaka eka swa
tipolitiki kambe vumbiwa hi byona lebyi byi vekaka mindzilakano ya matimba lama ya
faneleke ku tirhisiwa hi vayimeri valavo lava va hlawuriwaka ku yimela vanhu
Afrikaans konstitusionele demokrasie
Ook bekend as liberale demokrasie; ’n algemene vorm van verteenwoordigende
demokrasie waar burgers as deel van ’n mededingende politieke proses aan gereelde,
vrye en regverdige verkiesings deelneem en waar ’n grondwet beperkings plaas op die
magte wat uitgeoefen word deur diegene wat verkies word om die mense te
verteenwoordig
Constitutionalism
government in accordance with the Constitution. The government derives its powers from and is
bound by the Constitution. It refers to a state where the law is supreme, and the government and
state authorities are bound by the Constitution
isiZulu Ukuphatha nokulawula ngokoMthethosisekelo
uhulumeni olawula futhi aphathe ngokulandela uMthethosisekelo. Uhulumeni uthola
amandla namagunya awo kuMthethosisekelo futhi unesibopho sokuphatha
ngokoMthethosisekelo. Lokhu kusho umbuso lapho umthetho ubekwe eqhulwini futhi
lapho iziphathimandla zikahulumeni nezombuso zinesibopho sokuphatha nokulawula
kanye nokusebenzisa amandla namagunya azo ngokoMthethosisekelo
isiXhosa Ukukholwa yimithetho yolawulo yoMgaqo-siseko
urhulumente ngokuhambelana noMgaqo-siseko. Urhulumente ufumana amandla akhe
kwaye ubotshelelwe nguMthetho. Libhekisela kwimeko karhulumente apho umthetho
uphambili kwaye urhulumente kunye namagunya karhulumente abotshwe nguMgaqo-
siseko
Northern Pušo go ya ka melao ya Molaotheo
Sotho pušo ka go latela Molaotheo. Mmušo o hwetša maatla a wona go Molaotheo gape o
gapeletšega go dira go ya ka wona. E šupa pušo fao molao o lego ka godimo gomme
bolaodi bja mmušo le naga di gapeletšega go latela Molaotheo
isiNdebele Ukukhambisana noMthethosisekelo
Kutjho ukukhambisana kukarhulumende noMthethosisekelo. Urhulumende uthatha
amandla wakhe kuMthethosisekelo begodu ubotjhwa Mthethosisekelo. Lokhu kutjho
ubujamo lapho kubusa umthetho begodu urhulumende kanye nabaphathi bombuso
babotjhwa Mthethosisekelo
Setswana Bomolaotheo

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 puso go ya ka Molaotheo. Puso e tsaya dithata tsa yona go tswa go, e bile e tlamiwa
ke Molaotheo. Go kaya seemo se mo go sona molao o leng kwa godimo mme puso le
bathati ba puso ba tlamiwa ke Molaotheo
Sesotho Tatelo ya molaotheo
mmuso ho latela Molaotheo. Mmuso o fumana matla a ona ho tswa ho mme o tlangwa
ke Molaotheo. E bolela boemo boo ho bona molao o phahameng mme ba boholong ba
mmuso le naha ba tlangwang ke Molaotheo
Tshivenda U vha nga fhasi ha Ndayotewa
muvhuso u ya nga ha Ndayotewa. Muvhuso u wana maanḓa awo u bva kha nahone u
vhoxwa nga Ndayotewa. Zwi amba nyimele ine mulayo wa vha nṱha na vhulangi ha
muvhuso na shango zwa vhoxwa nga Ndayotewa
Afrikaans Grondwetlikheid
om volgens die Grondwet te regeer. Die regering ontleen sy bevoegdhede aan en word
gebind deur die Grondwet. Dit verwys na ’n staat waar die reg die oppergesag is en die
regering en staatsowerhede deur die Grondwet gebind word
Constitutional state
refers to a state in which constitutionalism prevails. In other words, a country where the law is supreme
isiZulu Umbuso olawulwa ngokoMthethosisekelo
lokhu kusho umbuso lapho umthethosisekelo ungumakhonya kukho konke
okwenziwayo (bheka ukuphatha nokulawula ngokomthethosisekelo), ngamanye
amagama lokhu kusho izwe lapho umthetho ubekwe eqhulwini
isiXhosa Iizwe elilawulwa ngomthetho woMgaqo-siseko
ibhekisela kurhulumente apho umthetho wolawulo kumgaqo-siseko (jonga kwimithetho
yokulawula ngokomgaqo-siseko) usebenza, ngamanye amazwi ilizwe apho umthetho
ungowona uphakamileyo/ uphezulu
Northern Pušo ye e sepetšwago go ya ka Molaotheo
Sotho e šupa seemo seo go sona pušo go ya ka melao ya molaotheo (bona pušo go ya ka
melao ya molaotheo) e bušago, ka mantšu a mangwe naga fao molao o lego
maemong a godimodimo
isiNdebele Inarha enoMthethosisekelo
Kutjhiwo inarha lapho umthethosisekelo (see constitutionalism) ulandelwa khona,
ngamanye amagama inarha lapho kubusa umthetho
Setswana Naga ya molaotheo
e kaya naga e mo go yona go leng bomolaotheo (lebelela bomolaotheo), ka mantswe a
mangwe, naga e mo go yona molao o leng kwa godimo
Sesotho Naha e latelang molaotheo
e bolela naha eo ho yona tatelo ya molaotheo (sheba tatelo ya molaotheo) e leng
matla, ka mantswe a mang naha eo ho yona molao o phahameng
Tshivenda Shango ḽa Ndayotewa
zwi amba shango une khawo ha vha na ndayotewa (kha vha sedze u vha nga fhasi ha
ndayotewa) i shumaho, nga maṅwe maipfi shango ḽine mulayo wa vha nṱha ha zwoṱhe
Afrikaans Grondwetlike staat
verwys na ’n staat waarin grondwetlikheid (sien grondwetlikheid) heers, met ander
woorde ’n land waarin die reg die oppergesag is
Corruption
dishonest or fraudulent conduct by those in power, typically involving bribery
isiZulu Ubukhohlakali
Ukungathembeki noma ukuziphatha ngendlela yobukhohlakali yilabo abaphethe
amandla, ikakhulukazi lokhu kufaka ukugwazela
isiXhosa Urhwaphilizo
Izenzo ezingathembekanga okanye ezobuqhetseba ngabaphetheyo, ikakhulu ziquka

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ukunyoba
Northern Bomenetša
Sotho Boitshwaro bja go se botege goba bja boradia bja bao ba lego maatleng a taolo, gantši
bo akaretša tsogolekobong
isiNdebele Ubukhohlakali
Isenzo sokuziphatha ngendlela engathembekiko nanyana yobukhohlakali kwalabo
abaphetheko, ikakhulukazi ifaka ukufumbathisa
Setswana Bobodu
maitsholo a a se nang boammaaruri gongwe a tsietso a ba ba nang le dithata, gantsi a
akaretsa pipamolomo
Sesotho Bobodu
boitshwaro ba ho se tshepahale kapa ba boqhekelli ke ba nang le matla, boo hangata
bo amanang le tjotjo
siSwati Inkhohlakalo
kungetsembeki nome kukhwabanisa lokwentiwa ngulabo labasetikhundleni, lokufaka
ekhatsi umdizo
Tshivenda Vhuaḓa
Vhuḓifari ha u sa fulufhedzea kana ha vhufhura nga avho vha re na maanḓa, nga
maanḓa avho vha dzhenelelaho kha zwa tshanḓanguvhoni
Xitsonga Mikhuva yo bola
Ku kala ku tshembeka kumbe ku tikhoma hi ndlela ya vukungundzwane leswi
endliwaka hi lava va nga na matimba ya vufumi, leswi swi tala ku katsa brayibari
kumbe ku nyiketana mali hi vunkhunkhu
Afrikaans Korrupsie
Oneerlike of bedrieglike optrede, wat gewoonlik omkopery behels, deur diegene wat
aan bewind is
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
isiZulu Uhlelo oluphikisana neningi
Lobu wubunzima bomqondo wegama elihlobene nokusetshenziswa kwemithetho
yomthethosisekelo ophakeme wegatsha lezomthetho. Lobu bunzima buvela ngenxa
yabahluleli abangaqokwanga ngaphandle kwemvumo evela kubavoti ukuqeda isifiso
sesishayamthetho kanye nesigungu esikhethwe ngokwedemokhrasi ngokumemezela
izinyathelo zabo ezingafanele, ngakho-ke lokhu kusho ukusebenza ngendlela
ephikisana neningi
isiXhosa Ukuphikisa intando yesininzi
Le yingcamango enobunzima enxulumene nokunyanzeliswa kwezimiselo neziseko
zoMgaqo Siseko licandelo lezobulugisa. Ubunzima buvela ngenxa yokuba abagwebi
abanyulwanga, kwaye abanagunya elivela kubavoti, ngoko ke abamele kuba negunya
lokuthintela okanye ukuguzula izigqibo zendlu yowiso mthetho nezebhunga elilawulayo
ngoba xa kunjalo baphikisana nentando yesininzi
Northern Thibelo ya taolo ya bontši
Sotho Bothata bja kgopolo bjo bo tswalantšhwago le tiišetšo ya dikabo tša molaotheo wo
mogolo ke boahlodi. Bothata bjo bo ba gona ka gobane baahlodi bao ba sa kgethwago
ka ntle le taelo go tšwa go bakgethi ba a matlafatšwa go thibela thato ya
lekgotlapeamelao le bolaodi tše di kgethilwego ka temokrasi ka go dira ditiro tša tšona
go ba tše di phošagetšego, gomme ba dira ka mokgwa wa thibelo ya taolo ya bontši
isiNdebele Ukuphikisana nenengi
Ubudisi begama elikhambisana nokuqiniswa kwemithetho yomthethosisekelo

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 ophakemeko ophakanyiswa mthetho. Lobu budisi buyavela ngombana amajaji
angakakhethwa anganavumo evela kubavodi anikelwe igunya lokulwa nesifiso
sesibethamthetho esikhethwe ngokwedemokhrasi kanye nesigungu ngokumemezela
izenzo zabo eziphambene nomthetho, yeke ngalokho benza izenzo eziphikisana
nenengi
Setswana Kganetsobontsi
Bothata jwa mogopolo jo bo amanngwang le tiragatso ya ditlamelo tsa molaotheo o o
kwa godimo ke bosiamisi. Bothata bo tlhagelela ka ntlha ya gore baatlhodi ba ba sa
tlhophiwang mme ba se na thomo go tswa kwa batlhophing ba na le dithata tsa go
thibela keletso ya kokoanotheomolao e e tlhophilweng ka tsela ya temokerasi le
khuduthamaga ka go goeletsa gore dikgato tsa yona ga di a tlhomamisiwa, mme ka go
rialo ba dira seo ka tsela e e ganetsang bontsi
Sesotho Bothata ba tlhahlobo ya boahlodi
bothata ba maikutlo bo amanang le qobello ya ditokisetso tsa molaotheo o phahameng
ke boahlodi. Bothata bo hlaha hobane baahlodi ba sa kgethwang ba se nang taelo ho
tswa ho bakgethi ba fuwa matla a ho thibela thato ya mokgatlo wa melao ya naha o
kgethilweng ke setjhaba le bolaodi ka ho phatlalatsa diketso tsa bona tse sa
nepahalang, kahoo ba sebetsa ka tsela e kgahlanong le boipiletso
siSwati Kumelana nebunyenti
Ngumcondvo wewebulukhuni lophatselene nekucinisekisa kweluphiko lwetebulungiswa
kugcinwa kwaloko lokushiwo ngumtsetfosisekelo. Lobulukhuni buvela ngenca yemajaji
langakakhetfwa lete ligunyakwenta lalinikwa bavoti anemandla ekumba intsandvo
yesishayamtsetfo lesikhetfwe ngekwetsandvo yelinyenti nesigungu lesiphetse
ngekumemetela kutsi tento tabo atikho emtsetfweni, ngaleyo ndlela-ke enta tintfo
ngekumelana nebunyenti
Tshivenda Vhunzhi vhu hanedzaho
Vhukonḓi ha muṱalukanyo vhu elenaho na u shumiswa ha mbetshelwa dza ndayotewa
khaṱhuli nga vhuhaṱuli. Vhukonḓi uvhu vhu bvelela ngauri vhahaṱuli vha songo
nangiwaho vha si na maanḓa a bvaho kha vhakhethi vha ṋewa maanḓa a u thivhela
lutamo lwa theo ya mulayo yo khethiwaho lwa dimokirasi na vhulanguli nga u bula uri
nyito dzavho a dzi shumi, zwine zwa sia vha khou ita zwa vhunzhi vhu hanedzaho
Xitsonga Matimba ya vaavanyisi ku kanetana na vahlawuriwa va mfumo
vutiki lebyi fambisanaka na matimba ya le henhla ya tihuvo ta khoto ya le henhla eka
vumbiwa hi vaavanyisi. Vutiki lebyi byi va kona hikokwalaho ka leswo tijaji (vaavanyisi)
a va hlawuriwangi na swona a va na vurhumiwa byo huma eka vavhoti, kambe va na
matimba ya ku sivela ku navela ka lava va nga hlawuriwa hi ndlela ya xidimokrasi
epalamende na huvo ya vaholobye va mfumo na tindzhawulo hi ku va, va phahela
etlhelo magoza ya lava hlawuriweke, leswi swi endlaka leswo va tirhisa matimba yo
kanetana na vahlawuriwa hi vunyingi
Afrikaans teenmeerderheidsdilemma
Die konseptuele dilemma wat met die toepassing van die bepalings van ’n
oppergrondwet deur die regbank geassosieer word. Hierdie dilemma ontstaan want
onverkose regters sonder ’n mandaat van kiesers het die bevoegdheid om die wil van
die demokraties verkose wetgewende gesag en uitvoerende gesag te kortwiek deur
hulle handelinge ongeldig te verklaar en sodoende op ’n teenmeerderheidswyse op te
tree
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. It refers to the laws developed and applied by indigenous peoples and is contrasted to
the common law imposed by colonial rulers
isiZulu UMthetho wezendabuko
Lo wumthetho wendabuko noma leso senzo sesize saba yingxenye yangaphakathi
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yendlela yokuziphatha eyamukelekayo nendlela yokuziphatha emphakathini, lokhu

okuqinisekiswa umphakathi futhi kungaguqulwa wumphakathi ekuhambeni kwesikhathi.
Lokhu kuchaza imithetho eyakhiwa futhi esetshenziswa abantu bendabuko kanti lokhu
kuphikisana nomthetho ojwayelekile ophoqelelwa ababusi besikoloni
isiXhosa Umthetho wesiNtu
Kuxelwa imithetho yesiNtu okanye izigqibo zesiNtu ezamkelwa ngumphakathi
njengendlela yokuziphatha nendlela yokwenza izinto ezithile. Le mithetho iyanyanzelwa
ngumphakathi kwaye ingatshintshwa ekuhambeni kwexesha ngumphakathi lowo.
Yimithetho eyilwe kwaye esetyenziswa ngabantu bomthonyama kwaye ichasene
nomthetho oqhelekileyo owawunyanzeliswa ngabaphathi bekoloni (amakoloniyali)
Northern Molao wa setšo
Sotho Molawana goba setlwaedi sa setšo sa go tlwaelega se e lego karolo ya motheo ya
boitshwaro bjo bo amogelwago le go letelwa setšhabeng, o tiišetšwa ke setšhaba seo
gape o ka fetošwa nakong ke setšhaba seo. O ra melao ye e hlabollwago le go dirišwa
ke batho ba setlogo gomme o kgakgana le molao wa go tlwaelega wo o beilwego ke
babuši ba bokoloniyale
isiNdebele UMthetho weNdabuko
Kumthetho nanyana isenzo esazekako sendabuko leso esaba yingcenye
yangaphakathi yokuziphatha okwamukelekako nokulindelwe emphakathini, lokhu
kuqiniswa mphakathi lowo begodu ungatjhugululwa mphakathi lowo ekukhambeni
kwesikhathi. Lapha kutjhiwo imithetho eyakhiwa beyasetjenziswa babantu bendabuko
begodu iphikisana nomthetho ojayelekileko owabekwa babusi bamakoloni
Setswana Molao wa setso
molawana wa tlwaelo wa setso gongwe tiragatso e e setseng e le karolo ya botlhokwa
ya maitsholo a a amogelwang le a a solofelwang mo baaging, o o diragadiwang ke
baagi mme gape o ka fetolwa ke baagi bao mo tsamaong ya nako. O kaya melao e e
tlhamilweng le go dirisiwa ke batho ba tshimologo mme e farologana le molao wa
tlwaelo o o pateleditsweng ke balaodi ba bokoloniale
Sesotho Molao o tlwaelehileng
molao o tlwaelehileng kapa tlwaelo e fetohileng karolo ya bohlokwa ya boitshwaro bo
amohetsweng mme bo lebelletsweng setjhabeng, o tiiswang ke setjhaba seo mme o
boetse o ka fetolwa ha nako e ntse e tsamaya ke sona setjhaba seo. O bua ka melao e
thehilweng le ho sebediswa ke batho ba matswallwa mme o hanyetswa ke molao o
tlwaelehileng o behilweng ke babusi ba bokolone
siSwati Umtsetfo wendzabuko
Ngumtsetfo loyalekile wendzabuko nome wekwenta tintfo losewutsatseka
njengalowemukelekile nekutiphatsa lokulindzelekile emmangweni. Kucondziswe kuleyo
mitsetfo leshaywa iphindze futsi isetjentiswe bantfu bendzabuko futsi uyaphikisana
nemtsetfomvama loshaywa babusi lababatfumbi
Tshivenda Mulayo wa sialala/wa nḓowelo
Vhuvhusi ha sialala ho ḓoweleaho kana nyito yo no vha ho tshipiḓa tsha ndeme tsha
vhuḓifari vhu ṱanganedzwaho na vhu lavhelelwaho kha tshitshavha. Zwi amba milayo
yo bveledzwaho na u shumiswa nga vhongwaniwapo nahone u hanedzana na mulayo
wo ḓoweleaho nga vhavhusi vha vhakoloni
Xitsonga Nawu wa tirhelo ra ndhavuko
nawu kumbe mafambiselo ya ntolovelo lawa se ya amukeriwaka no rindzeriwa ku
tirhisiwa eka vaaka-miti, mafambiselo lama ya tirhisiwaka hi vaaka-miti na swona lama
ya nga cinciwaka endzhaku ka nkarhi eka vaaka-miti valavo. Swi vula mintlawa ya milawu
leyi yi nga endliwa no tirhisiwa hi vanhu va ndhavuko kasi i nawu lowu wu kotlanisiwaka
na nawu wa tirhelo ra ntolovelo ra milawu leyi yi nga vekiwa hi vafumi va vukoloni
Afrikaans Gewoontereg
’n Tradisionele algemene reël of praktyk wat ’n intrinsieke deel van die aanvaarde en
verwagte optrede in ’n gemeenskap geword het, wat deur daardie gemeenskap
toegepas word en wat met verloop van tyd deur daardie gemeenskap verander kan
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 word. Dit verwys na die wette wat deur inheemse volke ontwikkel en toegepas is en
wat in teenstelling is met die gemenereg wat deur koloniale heersers afgedwing is
Decentralisation
The transfer of authority from national to provincial or local government
isiZulu Ukusatshalaliswa kwamandla
Ukudluliselwa kwamandla kusukela ezingeni lezwe ukuya ezingeni lesifundazwe noma
lukamasipaladi wasemakhaya
isiXhosa Ukusasaza amalungelo
Ukudlulisa igunya ukusukela kurhulumente kazwelonke ukuya kurhulumente wendawo
Northern Kabo ya maatla
Sotho Phetišetšo ya bolaodi go tšwa go mmušo wa bosetšhaba go ya go mmušo wa profense
goba wa selegae
isiNdebele Ukusabalalisa amandla
Lokhu kutjho ukudlulisela amandla ukusuka kurhulumende wenarha ukuya
kurhulumende wesifunda nanyana wemakhaya
Setswana Phetisodithata
Phetisetso ya taolo go tswa kwa pusong ya bosetšhaba go ya go ya porofense gongwe
ya selegae
Sesotho Phetiso ya matla
Phetiso ya matla ho tloha mmusong wa naha ho ya ho mmuso wa porofense kapa wa
lehae
siSwati Kusabalalisa
Kusabalalisa emandla asuke kuhulumende wavelonkhe ye kuhulumende wesifundza
nome wasekhaya
Tshivenda Phaḓaladzo
U pfukiswa ha vhulangi u bva kha muvhuso wa lushaka u ya kha wa vundu kana wapo
Xitsonga Ku hangalasiwa ka matimba ya vufumi
ku hundzisiwa ka matimba ya vufumi ku suka eka mfumo wa tiko ku ya eka mimfumo
ya tiprovhinsi (swifundzhankulu) kumbe eka mfumo wa muganga
Afrikaans Desentralisasie
Die afwenteling van gesag vanaf nasionale na provinsiale of plaaslike regering
Delegated (subordinate) legislation
the legislation which is enacted by the executive branch of government. It is not original
parliamentary or provincial or local government legislation
isiZulu Umthetho (ongaphansi) ogunyaziwe
lokhu kusho umthetho oshaywe yiziphathimandla zikahulumeni. Lona akuwona
umthetho oshaywe yiphalamende noma uhulumeni wesifundazwe noma uhulumeni
wendawo
isiXhosa Umthetho ogunyazisiweyo (ongaphantsi)
umthetho owenziwe lisebe lolawulo lorhulumente. Akungomthetho wemveli/umthetho
wokuqala epalamente okanye wephondo okanye wengingqi/wasekhaya kuwiso-mthetho
Northern Molao wo o dirilwego ke ditona tšeo di filwego maatla a go dira bjalo
Sotho tlhakamolao yeo e phethagaditšwego ke lekala la khuduthamaga la mmušo.Ga se
tlhakamolao ya tlhago ya palamente goba ya mmušo wa profense goba wa selegae
isiNdebele Umthetho ojanyelwa liphiko likarhulumende
Kumthetho osetjenziswa ligatja lesigungu sikarhulumende. Lo akusiwo umthetho
odabuka epalamende nanyana kusibethamthetho sesifunda nanyana isibethamthetho
sikarhulumende wemakhaya
Setswana Molao wa dithata tse di fetisitsweng (o o kwa tlase)
molao o o fetisiwang ke lekala la khuduthamaga la puso. Ga se molao wa tshimologo
wa palamente gongwe wa puso ya porofense gongwe ya selegae

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Sesotho Molao o kgethuweng (o ka tlase)

molao o etswang ke lekala la tsamaiso ya mmuso. Hase molao wa pele wa paramente
kapa wa porofense kapa wa mmuso wa lehae
Tshivenda Theo ya mulayo yo rumelwaho (I tikedzaho)
theo ya mulayo yo thomiwaho nga davhi ḽa vhulangi
Afrikaans Gedelegeerde (ondergeskikte) wetgewing
wetgewing verorden deur die uitvoerende tak van die regering. Dit is nie oorspronklike
parlementêre wetgewing of wetgewing van ’n plaaslike owerheid nie
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

isiZulu Imodeli yezingxogxo ezimayelana nohlelo lokuhlukaniswa kwamandla

Umbono othi ummoya wokungazwani okuphakathi kwesishayamthetho, kwesigungu
kanye nakwezomthetho, okuvela kuhlelo lwezokuhlukaniswa kwamandla phakathi
kwabo, lokhu kungaxazululwa ngokucabanga ubudlelwano obuphakathi kwalawa
magatsha njengeziko elilodwa lapho izingxoxo ezihleliwe zakha ubudlelwano
obuphakathi kwamagatsha
isiXhosa Incoko njengomzekelo wokwahlukanisa kwemithetho
Ingcamango yokuba ingxaki phakathi kwecandelo lowiso mthetho, elolawulo
nelezobulungisa edalwa kukwahlukaniswa kwamagunya, ingasonjululwa ngokucingela
unxibelelwano phakathi kwala masebe amathathu apho kufuneka incoko
yokukhuthazana nedala ukusebenzisana phakathi kwamasebe
Northern Mmotlolo wa ditherišano wa kgaoganyo ya maatla
Sotho Kgopolo ya gore dikgohlano magareng ga lekgotlapeamelao, bolaodi le boahlodi, tše di
bakwago ke kgaoganyo ya maatla magareng ga tšona, di ka rarollwa ka go
akanyetšwa tswalano magareng ga makala a a mararo go ba e tee moo ditherišano tše
di rulagantšwego di betlago tswalano magareng ga makala
isiNdebele Imodeli yezokucocisana emalungana nezokuhlukaniselwana kwamandla
Umbono wokuthi ukulwa okuphakathi kwesibethamthetho, kwesigungu nomthetho,
okuvela ehlelweni lezokuhlukaniselana amandla phakathi kwabo, kungararululwa
ngokusebenzisa ubudlelwano obuphakathi kwalawa magatja amathathu abe ligatja
elilodwa lapho ikulumiswano eyodwa yakha ubudlelwano obuphakathi kwamagatja
Setswana Sekao sa puisano sa karoganyo ya dithata
Mogopolo wa gore kgotlhang magareng ga kokoanotheomolao, khuduthamaga le
bosiamisi, e e bakwang ke karoganyo ya dithata magareng ga maphata ano, e ka
rarabololwa ka go lebelela botsalano magareng ga makala ano jaaka jo mo go jona
puisano e e rulaganeng e bopang botsalano magareng ga Makala
Sesotho Mokgwa wa puisano wa karohano ya matla
Maikutlo a hore tsitsipano dipakeng tsa mokgatlo wa melao ya naha, bolaodi le
boahlodi, a hlahang ka lebaka la ho arohanngwa ha matla dipakeng tsa bona, a ka
rarollwa ka ho nahana ka kamano dipakeng tsa makala ana a mararo e leng eo ho
yona puisano e hlophisitsweng e ka bopang kamano dipakeng sa makala
siSwati Indlela lesanchulumiswano ngekuhlukaniswa kwemandla
Umcondvo wekutsi kunekudvonsisana emkhatsini wesishayamtsetfo, sigungu
lesiphetse neluphiko lwetebulungiswa, lokudalwa kuhlukaniswa kwemandla emkhatsini
wabo, kungasonjululwa ngekutsi kubukwe budlelwane emkhatsini walamagatja
lamatsatfu lobungaletsa inkhulumiswano lehlelelembisiwe letakwakha lobudlelwane
emkhatsini walamagatja
Tshivenda Tshiedziswa tsha thevhekano ya masia oṱhe tsha khethekanyo ya maanḓa
Muhumbulo wa uri muombano vhukati ha theo ya mulayo, vhulanguli na vhuhaṱuli, u
bvaho kha u khethekanywa ha maanḓa vhukati hazwo, u nga tandululwa nga u

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 humbulela vhushaka vhukati ha matavhi aya mararu a sa one ane nyambedzano yo
dzudzanyelaho ya vhumba vhushaka vhukati ha matavhi aya
Xitsonga Dialogic model of the separation of powers
Muanakanyo wa leswo nkokelano exikarhi ka swiyenge swa palamende, huvo ya
vaholobye na tindzawulo (executive), na huvo ya vuavanyisi na tikhoto (judiciary) leswi
swi sukelaka eka ku avanyisiwa ka matimba exikarhi ka swiyenge leswi, nkokelano
lowu wu nga ololoxiwa hikuva ku va na mavonelo yo anakanyela leswo vuxaka exikarhi
ka marhavi lawa manharhu tani hi rin’we laha ku nga va ku kona mimburisano leyi
hlelekeke exikarhi ka marhavi lawa
Afrikaans dialogiese model van die skeiding van magte
Die idee dat die spanning tussen die wetgewende gesag, die uitvoerende gesag en die
regbank, wat uit die skeiding van magte tussen hulle spruit, opgelos kan word deur die
verhouding tussen hierdie drie vertakkings van die regering te beskou as een wat deur
’n gestruktureerde gesprek gevorm word
Discretion
the freedom to decide what should be done in a particular situation
isiZulu Igunya/amandla
Le yinkululeko yokuba namandla okuthatha isinqumo sokuthi kufanele kwenziwe ini
mayelana nalesi simo
isiXhosa Ingqiqo
Inkululeko yokuzikhethela isigqibo ekufanele sithathiwe kwisimo esithile
Northern Kgetho
Sotho Tokologo go kgetha seo se swanetšego go dirwa maemong a a itšego
isiNdebele Igunya/amandla
Le mvumo yokuthatha isiqunto sokuthi kufanele yini okufanele yenziwe ngesikhathi
esithize
Setswana Boitlhophelo
kgololesego ya go swetsa ka se se tshwanetseng go dirwa mo seemong se se riling
Sesotho Kgatho
bolokolohi ba ho etsa qeto ya se lokelang ho etswa boemong bo itseng
siSwati Kwenta ngekubona kwakho
inkhululeko yekutincumela wena kutsi yini lekumele kutsi yentiwe esimeni lesitsite
Tshivenda Vhuṱali/nḓivho/muhumbulo
Mbofholowo ya u dzhia tsheo ya zwine zwa nga itwa kha nyimele yo imaho ngauri
Xitsonga Discretion
ntshunxeko wa ku endla xiboho hi leswi swi faneleke ku endliwa eka xiyimo xo karhi
Afrikaans Diskresie
Die vryheid om te besluit wat in ’n bepaalde situasie gedoen moet word
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
isiZulu UHlelo lwezamakhetho
Le yindlela esetshenziswayo lapho inani lamavoti aphonselwa abantu abavotela
izinhlangano zepolitiki liguqulwa libe yinani lezihlalo zenhlangano ngayinye
ephalamende. Izinhlelo ezahlukene zokhetho ziletha amazing ahlukene okumelwa
kwezinhlangano ezahlukene ephalamende
isiXhosa Inkqubo yonyulo
Iindlela esetyenziswa ekubaleni amanani okuvota nokuba loo amanani aguqulwa njani
abe zizihlalo kwindlu yowiso mthetho. Iinkqubo zonyulo ezahlukeneyo ziyila amanqaku
ahlukeneyo okumela kumaqela ngamaqela endlu yowiso mthetho

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Northern Sestemo ya kgetho

Sotho Tshepedišo ye ka yona palo ya dikgetho tše di lahletšwego ke bakgethi go mokgatlo o
mongwe le o mongwe wa dipolitiki e fetošetšwago go ba nomoro ya ditulo ya mokgatlo
o mongwe le o mongwe ka gare ka lekgotlapeamelao. Disestemo tša kgetho tša go
fapanafapana di tšweletša maemo a go fapanafapana a kemedi go mekgatlo ya go
fapanafapana ka gare ka lekgotlapeamelao
isiNdebele Isistimu yezamakhetho
Leli lihlelo lapho inani lamavowudi eliphoselwa bavowudi ngokuvowudela iinhlangano
zepolotiki litjhugululwa libe linani leenhlalo zehlangano ngayinye epalamende.
Amasistimu ahlukeneko wezamakhetho aletha amazinga ahlukeneko weenhlangano
ezihlukeneko epalamende
Setswana Thulaganyo ya ditlhopho
Tsela e ka yona palo ya diboutu tse di dirilweng ke batlhophi go lekoko lengwe le
lengwe la sepolotiki di fetolelwang go nna palo ya manno a lengwe le lengwe la
makoko mo kokoanotheomolaong. Dithulaganyo tse di farologaneng tsa ditlhopho di
tlhagisa seelo se se farologaneng sa kemedi ya makoko a a farologaneng mo
kokoanotheomolaong
Sesotho Tsamaiso ya dikgetho
Mokgwa oo ka ona palo ya divoutu tse entsweng ke bakgethi bakeng sa mokga ka
mong wa dipolotiki e fetolelwang ho palo ya ditulo bakeng sa mokga ka mong mokgatlong
wa melao ya naha. Ditsamaiso tse fapaneng tsa dikgetho di hlahisa maemo a fapaneng
a boemedi bakeng sa mekga e fapaneng mokgatlong wa melao ya naha
siSwati Luhlelo lwelukhetfo
Indlela yekuvota lesetjentiswako kubona linani lemavoti alelo nalelo cembu letepolitiki
kute ente linani letihlalo talelo nalelo nalelo cembu kusihsyamtsetfo. Tinhlelo
letahlukene telukhetfo tikhipha emazinga lahlukene ekumelela emacembu lahlukene
kusishayamtsetfo
Tshivenda Sisiṱeme ya zwa vhukhethi
Nḓila ine nga khayo tshivhalo tsha vouthu dzo itwaho nga vhakhethi u itela ḽihoro ḽa
poḽitiki ḽiṅwe na ḽiṅwe tsha pindulelwa u vha tshivhalo tsha zwidulo zwa ḽihoro ḽiṅwe na
ḽiṅwe kha vhusimamilayo
Xitsonga Sisteme ya fambiselo ra nhlawulo
Maendlelo laha nhlayo ya vavhoti lava nga vhota eka vandla rin’wana na rin’wana ra
tipolitiki ya hundzuluxiwaka leswo ya va nhlayo ya switulu epalamende eka vandla
rin’wana na rin’wana. Maendlelo ya nhlawulo yo hambana hambana ya va na tilevhele
ta vuyimeri to hambana eka mavandla yo hambana ya tipolitiki epalamende
Afrikaans Kiesstelsel
Die meganisme waardeur die aantal stemme wat kiesers vir elke party gee, oorgeskakel
word in die aantal setels wat elkeen van die partye in die wetgewende gesag kry.
Verskillende kiesstelsels het verskillende vlakke van verteenwoordiging vir verskillende
partye in die wetgewende gesag tot gevolg
Et al
And others (eg: de Vos et al South African Constitutional Law in Context (2014)
isiZulu Okunye/abanye
Kanye nabanye (isib: U-de Vos kanye nabanye South African Constitutional Law in
Context (2014)
isiXhosa Et al
Kwakunye nabanye (umz: de Vos et al South African Constitutional Law in Context
(2014))
Northern Le ba bangwe
Sotho Le ba bangwe (mohl. de Vos le ba bangwe South African Constitutional Law in Context
(2014))

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isiNdebele Nokhunye (et al)
(isib: de Vos et al South African Constitutional Law in Context (2014))
Setswana Et al
le ba bangwe (jk: de Vos et al South African Constitutional Law in Context (2014))
Sesotho Et al
le ba bang (mohlala: de Vos le ba bang South African Constitutional Law in Context
(2014))
siSwati nalabanye
sib: de Vos nalabanye South African Constitutional Law in Context (2014)
Tshivenda Nz
Na zwiṅwe (sa tsumbo: de Vos nz. South African Constitutional Law in Context (2014))
Xitsonga Na van’wana (Et al)
Na van’wana (xik: de Vos et al South African Constitutional Law in Context (2014))
Afrikaans et al
en ander(e) (bv de Vos et al South African Constitutional Law in Context (2014))
Executive (authority)
executive (authority) refers first to the political functionaries/ officials of the country: the president,
deputy president, ministers (the cabinet) and provincial premiers and members of executive councils
(MECs). Secondly, the term may also refer to the executive functions performed by these functionaries
isiZulu Iziphathimandla
okokuqala, itemu elithi iziphathimandla lisho izikhulu zezepolitiki zezwe: umongameli,
iphini likamongameli, ongqongqoshe (ikhabhinethi), ondunankulu bezifundazwe kanye
namalungu emikhandlu yeziphathimandla (ama-MEC). Okwesibili, leli temu lingasho
futhi nemisebenzi eyenziwa yilezi zikhulu ngokwezikhundla zazo
isiXhosa IsiGqeba (igunya)
Igunya elilawulayo (igunya) libhekisela kuqala kubasebenzi bezopolitiko / abaphathi
beli lizwe: umongameli, isekela likamongameli, abaphathiswa (ikhabhinethi) kunye
nabalawuli bephondo kunye namalungu amabhunga olawulo (i-MECs). Okwesibini, eli
gama linokuthi libhekiselele kwimisebenzi yolawulo eyenziwa ngaba basebenzi
Northern Khuduthamaga (bolaodi)
Sotho khuduthamaga (bolaodi) sa mathomo e šupa batho/bahlankedi ba naga bao ba
phethagatšago mediro ya sepolotiki. Mopresidente, motlatšamopresidente, ditona
(kabinete) le bapremia ba diprofense le maloko a lakgotlaphethiši (diMEC) Sa bobedi,
lereo le ka šupa mediro ya khuduthamaga yeo e phethagatšwago ke baphethiši ba
isiNdebele IsiGungu (iimPhathimandla)
IsiGungu (IimPhathimandla) litjho kokuthoma iinsebenzi/abasebenzi zezepolotiki
enarheni: uMongameli, uSekela Mongameli, abaongqongqotjhe (ikhabinede) kanye
nabondunakulu beemfundo kanye namalunga wesigungu somkhandlu
(abosoMkhandlu (MECs). Kwesibili, ithemu leli begodu lingatjho imisebenzi yesigungu
eyenziwa ziinsebenzi lezi
Setswana Khuduthamaga (bothati)
khuduthamaga (bothati) e kaya pele batlhankedi ba sepolotiki ba naga: moporesidente,
motlatsamoporesidente, ditona (kabinete) le ditonakgolo tsa porofense mmogo le
ditokolo tsa makgotla a khuduthamaga (Bakhuduthamaga). Sa bobedi, lereo le ka kaya
gape ditiro tsa khuduthamaga tse di dirwang ke batlhankedi bano
Sesotho Tsamaiso (bolaodi)
tsamaiso (bolaodi) e bolela pele ba boholong ba dipolotiki/diofisiri tsa naha:
moporesidente, motlatsi wa moporesidente, matona (kabinete) le ditonakgolo tsa
diporofense le ditho tsa makgotla a tsamaiso (di-MEC). Ntlha ya bobedi, lentswe lena
le ka boetse la bolela ditshebetso tsa tsamaiso tse etswang ke ba boholong
Tshivenda Vhulanguli (vhulaedzwa)
Vhulanguli (vhulaedzwa) zwi amba vhashumi vha politiki/vhaofisiri vha shango:

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phuresidennde, mufarisa phuresidennde, minisiṱa (khabinethe) na vhalangavundu vha

mavundu na miraḓo ya khorotshitumbe (MEC). Tsha vhuvhili, themo ḽi nga dovha ḽa
amba mishumo ya vhulanguli ine ya shumiwa nga avha vhashumi
Afrikaans Uitvoerende (gesag)
uitvoerende (gesag) verwys eerstens na die politieke funksionarisse/amptenare van die
land: die president, adjunkpresident, ministers (die kabinet) en provinsiale premiers en
lede van die uitvoerende rade (LUR’e). Die term kan tweedens ook na die uitvoerende
funksies van hierdie funksionarisse verwys
Fit and proper
this concept is used to determine a person’s honesty, integrity and reputation in order to confirm that
they are fit and proper for the role they are undertaking. It means that the person must possess
qualities such as integrity, honesty, objectivity, dignity, capacity for hard work, respect for the legal
order, candour, trustworthiness and a sense of equality and fairness
isiZulu Isimo sokulungela kanye nokufaneleka
Leli yigama elalisetshenziswa ukuthola ukuthembeka komuntu, isimilo kanye
nesithunzi ukuqinisekisa ukuthi labo bantu nangempela bakulungele futhi bakufanele
ukuthi benze umsebenzi abanikezwe wona. Lokhu kuchaza ukuthi umuntu kufanele
abe nezimpawu ezinjesimilo, ukuthembeka, ukungathathi ingxenye, isithunzi, ikhono
lokusebenza nzima, ukuhlonipha umthetho, isibindi sokukhuluma ngokukhululeka,
ukuthenjwa kanye nokulingana kanye nokungathathi ingxenye
isiXhosa Kuyalingana kwaye kufanelekile
Le ingcamango isetyenziswa ukufumanisa ukuba umntu uthembekile kwaye
unengqibelelo ngalo msebenzi aza kuwenza. Kuthetha ukuba umntu kufanele ukuba
abe neempawu ezifana nesidima, ukunyaniseka, ukwazi ukuyivelela macala onke
imibandela, ukusebenza nzima, ingqiniselo, intlonipho yemithetho, ukuthembeka
nokungabi namkhethe
Northern Nepagetšego le maleba
Sotho Kgopolo ye e šomišwa go laetša tshepego, potego le botumo bja motho go ka tiišetša
gore ba nepagetše le go ba ba maleba go mošomo wo ba tlago o dira. E ra gore motho
o swanetše a be le dikhwalithi bjalo ka potego, tshepego, kgopolo ye e tsepamego,
seriti, bokgoni bja go šoma ka thata, go hlompha thulaganyo ya molao, bolokologi,
botshephegi, le boikwelo bja tekatekano le toko
isiNdebele Ukulungela nokufanela umsebenzi
Leligama lisetjenziswa ukuthola ukuthi umuntu uthembekile, unesithunzi begodu
unesithombe esihle ukuqinisekisa ukuthi bakulungele begodu bafanele ukwenza
umsebenzi abawikhethileko. Lokhu kutjho bona umuntu kufanele abe namatshwayoa
njengesithunzi, ukuthembeka, ukungathathi ihlangothi, isimilo, ikghono lokusebenza
budisi, ukuhlonipha ikambiso yezomthetho, isibindi sokukhuluma, ukuthenjwa kanye
nomuzwa wokulingana kanye nokungathathi ihlangothi
Setswana Siame/Matshwanedi
mogopolo ono o dirisediwa go tlhalosa boammaruri, bonnete le seriti go tlhomamisa gore
ba siametse seabe se ba se tsayang. Go kaya gore motho o tshwanetse go nna le
dintlhatheo di tshwana le boammaruri, go se tseye letlhakore, seriti, bokgoni jwa go dira
ka natla, go tlotla molao, go tsepama, go ikanyega le go itse tekatekanyo le go se
gobelele
Sesotho E loketseng le e nepahetseng
kgopolo ena se sebediswa ho sheba botshepehi ba motho, ho ba le nnete le botumo e
le ho netefatsa hore o loketse mme o nepahetse bakeng sa karolo ya seo ba se etsang.
E bolela hore motho o lokela ho ba le ditshwaneleho tse jwalo ka ho ba le nnete,
botshepehi, boikemisetso, seriti, bokgoni bakeng sa ho sebetsa ka thata, tlhompho ya
taelo ya molao, ho ba le monahano o bulehileng, ho tshetjwa le boikutlo ba tekatekano
le toka

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 siSwati Kulungela nekufaneleka
Lomcondvo usetjentiselwa kutfola bucotfo, kwetsembeka neligama lelihle lemuntfu
kute kucinisekiswe kutsi bakulungele futsi bakufanele kwenta loko lekumele kutsi
bakwente. Kusho kutsi lowo muntfu kufanele kutsi abe netimphawu letifanana
nebucotfo, kwetsembeka, kutsatsi luhlangotsi, sitfunti, kukhombisa kusebenta
ngekutikhandla, ahloniphe umyalo wetemtsetfo
Tshivenda U tea na u fanela
Muṱalukanyo uyu u shumiswa u topola u fulufhedzea, tshirunzi na mbonalo ya muthu u
itela u khwaṱhisedza uri vho tea na u fanela kha mushumo une vha khou u ita. Zwi
amba uri muthu u tea u vha na vhunzani vhu nga ho sa tshirunzi, u fulufhedzea,
ṱhonifho, u ḓiimisa nga woṱhe, vhukoni ha u shumesa, u ṱhonifha thevhekano ya
mulayo, u vha khagala na u fulufhedzea na u vhuḓipfi ha ndinganyiso na u vha kwawo
Xitsonga Ku ringanela na ku faneleka
Theme leri ri tirhisiwa ku vona loko munhu a tshembekile, a ri na vuntiyiso na ku
xiximeka leswo ku ta amukeriwa leswaku u ringanerile no faneleka eka ndzima leyi a
nyiketiwaka yona kumbe xiyimo lexi a nyiketiwaka xona. Swi vula leswo munhu u
fanele ku va na tikhwaliti ta vutshembeki, vuntiyiso no ka a nga voyameli tlhelo ro karhi
kambe a endla swilo hi ku kongomisa ntiyiso na leswi faneleke, a va na xindzhuti,
vuswikoti na ku tirha hi matimba, nxiximo wa fambiselo ra milawu, vutshembeki na ku
tshembeka na ku va na nxiximo wa ku ringana ka vanhu (equality) na ku endla hi laha
swi lulameke matlhelo hinkwawo
Afrikaans geskik en gepas
Hierdie konsep word gebruik om ’n persoon se eerlikheid, integriteit en reputasie te
bepaal ten einde te bevestig of hy of sy geskik en gepas is vir die rol wat hy of sy
aanneem. Dit beteken dat die persoon eienskappe soos integriteit, eerlikheid,
objektiwiteit, waardigheid, hardwerkendheid, respek vir die regsorde, opregtheid,
betroubaarheid en ’n sin vir gelykheid en regverdigheid moet hê
Government
“government” is an ambiguous term. In a broad sense as a collective noun, it denotes the legislative,
executive and judicial authority of the country. As a general term, “government” covers all the
functions and organs of the state. In the narrow sense it is used to specify the executive organs of
state (the administration). In general, today, “government” is understood as relating mainly to the
executive function and bearing on the formation and implementation of policy and law. The
government is also the temporary bearer of state authority, in other words the government in power
at a particular time. It acts as the “agent” of the state.
isiZulu Uhulumeni
itemu elithi “uhulumeni” yitemu elingahunyushwa futhi lichazwe ngezindlela
ezihlukahlukene. Ngokwencazelo ebanzi liyibizonto eliqoqela ndawonye izinto eziningi,
lichaza iziphathimandla ezishaya imithetho, iziphathimandla zezepolitiki ezenza
imisebenzi yokuphatha nokulawula izwe kanye neziphathimandla zobulungiswa
ezweni. Ngamafuphi, itemu elithi “uhulumeni” lifaka phakathi yonke imisebenzi kanye
nezinhlaka zombuso. Ngokwencazelo egxilile, leli temu lisetshenziselwa ukuchaza
izinhlaka zombuso ezenza imisebenzi yokuphatha nokulawula izwe (abalawuli).
Ngokujwayelekile, ezinsukwini zanamuhla, “uhulumeni’ uphathelene ikakhulukazi
nomsebenzi wokuphatha nokulawula izwe futhi uhlobene kokwakhiwa kanye
nokuqaliswa kokusebenza kwezinqubomgomo kanye nemithetho. Uhulumeni wenza
umsebenzi wokuba “yi-ejenti” yombuso. Uhulumeni futhi ungumphathi nomlawuli
wesikhashana wamandla namagunya ombuso, ngamanye amagama, lokhu kusho
uhulumeni ophethe izintambo ngesikhathi esithile. Bheka futhi netemu elithi “umbuso”
isiXhosa Urhulumente
igama elithi “urhulumente” limbaxa. Ngokwengqiqo ephangaleleyo njengesibizo
esiqoqayo, sichaza uwiso-mthetho, negunya elilawulayo, ngokwasemthethweni lelizwe.
Njengegama eliqhelekileyo, “urhulumente” liquka yonke imisebenzi kunye namalungu

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karhulumente. Ngokwengqiqo enyiniweyo (encinane) lisetyenziswa ukucacisa izigqeba

ezilawulayo (ulawulo). Jikelele namhlanje, “urhulumente” uqondwa nje ngokubhekiselele
ngokukodwa kumsebenzi wolawulo kunye nokunika ingqalelo kwinkqubo kunye
nokuphunyezwa komgaqo-nkqubo kunye nomthetho. URhulumente ukwangumphathi
onegunya lexeshana lolawulo lwesizwe, ngamanye amazwi urhulumente unamandla
ngexesha elithile. Usebenza njenge “sithunywa” sombuso (“agent”)
Northern Mmušo
Sotho lereo le “mmušo” le na le ditlhalošo tše ntši. Ka bophara bjalo ka leinakgoboko, le
laetša bolaodi bja lekgotlapeamolao, khuduthamaga goba boahlodi ka mo nageng.
Bjalo ka lereo ka kakaretšo, “mmušo” e akaretša ditiro le ditho ka moka tša pušo. Ka
bokopana le dirišwa go šupa ditho tša khuduthamaga tša pušo (tshepedišo/taolo). Ka
kakaretšo, lehono, “mmušo” e kwešišwa go tswalanywa gagolo le tiro ya bophethiši le
go tswalano go popego le tiragatšo ya molaotshepetšo le molao. Mmušo gape ke wona
o rwelego bolaodi bja nakwana bja pušo, ka mantšu a mangwe mmušo wo o nago le
maatla nakong ye e itšeng. O dira bjalo ka “modiredi” wa naga
isiNdebele URhulumende
Ithemu elithi “urhulumende” alinahlathululo yinye. Ngokunabileko lisisabizwana esitjho
ibuthelelo lezinto, lihlathulula umthetho, amandla wesigungu kanye namandla
womthetho wenarha. Njengegama elijamele woke amagama, “urhulumende” ufaka
yoke imisebenzi kanye namaphiko wombuso. Ngobufitjhazana leli gama lisetjenziswa
ukutjho amaphiko athileko wombuso (abalawuli). Ekhabo lakhona, namhlanjesi,
“urhulumende” uzwisiseka njengephiko elihlobene khulu nomsebenzi wesigungu kanti
leli phiko liqale godu nokwakhiwa kanye nokusetjenziswa komthethomgomo kanye
nomthetho. Urhulumende godu umphathi wesikhatjhana wenarha, ngamanye
amagama kutjhiwo urhulumendeophetheko esikhathini esithize
Setswana Puso
lereo la “puso” ga le a totobala. Ka bophara le jaaka leinagoboka, le kaya bothati jwa
naga jwa theomolao, khuduthamaga le bosiamisi. Jaaka lereokakaretso, “puso” e
akaretsa ditiro tsotlhe le dikarolo tsotlhe tsa mmuso. Ka tsela e e seng bophara le
dirisediwa go tlhalosa dikarolo tsa khuduthamaga tsa mmuso (tsamaiso). Ka
kakaretso, gompieno "puso" e tlhaloganngwa e amana fela le tiro ya khuduthamaga
mme e ikaegile ka go tlhamiwa le go diragadiwa ga dipholisi le molao. Gape puso ke
motshodi wa nakwana wa bothati jwa mmuso, ka mantswe a mangwe puso e e nang le
dithata ka nako e e rileng. E dira jaaka “moemedi” wa naga
Sesotho Mmuso
lentswe “mmuso” le ka tolokeha hangata. Ka kutlwisiso e pharaletseng e le lebitso le
kopaneng, le bolela molao, matla a tsamaiso le a makgotla a naha. E le lentswe le
akaretsang, “mmuso” o akaretsa ditshebetso tsohle le ditho tsa naha. Ka kutlwisiso e
tshesanyane le sebediswa ho hlakisa ditho tsa tsamaiso tsa mmuso (tsamaiso). Ka
kakaretso kajeno, “mmuso” o utlwisiswa o amana haholo-holo le tshebetso ya
tsamaiso le ho sebetsana le theo le ho kenngwa tshebetsong ha leano le molao.
Mmuso o boetse ke mojaki wa nakwana wa matla a naha, ka mantswe a mang mmuso
o matleng ka nako e itseng. O sebetsa e le “moemedi” wa naha
Tshivenda Muvhuso
themo ḽa “muvhuso” ḽi a ḓaḓisa. Nga u angaredza ndi dzina ḽi kateli, ḽi sumbedza theo
ya mulayo, vhulanguli na maanḓa a vhuhaṱuli a shango. Sa themo ḽi angaredzaho,
“muvhuso” u katela mishumo na khethekanyo dza muvhuso. Kha u pfufhifhadza ḽi
shumiswa u tou khetha khethekanyo dza vhulanguli dza shango (ndaulo). Nga u
agaredza, ṋamusi “muvhuso” u pfeseswa sa u elanaho na tshumiso ya
mbekanyamaitele na mulayo. Shango u dovha wa vha mufari wa tshifhinganyana wa
vhulanguli ha shango, nga maṅwe maipfi muvhuso u re na maanḓa nga tshifhinga tsho
imaho ngauri. U shuma sa “zhendedzi” ḽa muvhuso
Afrikaans Regering
die term “regering” het twee betekenisse. In die breë sin, as ’n kollektiewe selfstandige
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 naamwoord, beteken dit die wetgewende, uitvoerende en regsprekende gesag van die
land. As algemene term dek die woord “regering” al die funksies en organe van die
staat. In die eng sin word dit gebruik om spesifiek na die uitvoerende staatsorgane (die
administrasie) te verwys. Die algemene begrip van “regering” is dat dit hoofsaaklik
betrekking het op die uitvoerende funksies en die vorming en implementering van
beleid en reg. Die regering is ook die tydelike draer van staatsgesag, met ander
woorde die regering wat op ’n bepaalde tydstip aan die bewind is. In dié sin tree die
regering op as “verteenwoordiger” van die staat. Sien ook “staat
Integrity
the quality of being honest and having strong ethical and moral principles
isiZulu Isimilo
Lolu wuphawu lokuthembeka nokuba nemigomo eqinile yokuziphatha kanye
nenhlonipho
isiXhosa Ingqibelelo
Impawu yokuba nenyani nokuziphatha ngendlela efanelekileyo
Northern Potego
Sotho Khwalithi ya go tshephagala le go ba le melwana ye maatla ya boitshwaro le maitswharo
isiNdebele Isimilo
Leli kulitshwayo lokuthembeka nokuba nemigomo eqinileko yokuziphatha nokuhlonipha
Setswana Boammaaruri
ntlhatheo ya go nna le nnete le go nna le dintlhatheo tse di tiileng tsa maitsholo a a
siameng
Sesotho Botshepehi
boleng ba ho tshepahala le ho ba le ditheo tse matla tsa boitshwaro
siSwati Bucotfo
simo sekuba nenhlitiyo lete inkhohliso kanye nekuba nekhambo lecinile lelungile
yemitsetfomgomo yekutiphatsa
Tshivenda Tshirunzi
Ndeme ya u fulufhedzea na u vha na milayo yo khwaṱhaho ya vhuḓifari na mikhwa
Xitsonga Vutshembeki
Xiyimo xa ku tshembeka no va na minsinya (principles) ya ti-ethics yo tiyela
Afrikaans Integriteit
Eerlikheid/opregtheid; om sterk etiese en morele beginsels te hê
Judicial authority
refers to all the courts in the Republic (see s 165(1) of the Constitution)
isiZulu Iziphathimandla zobulungiswa
lokhu kusho zonke izinkantolo zeRiphabhulikhi (bheka isigaba 165(1)
soMthethosisekelo)
isiXhosa Igunya lenkundla zokugweba
ibhekisela kuzo zonke iinkundla kwiRiphabhliki (jonga i-165(1) yoMgaqo-siseko)
Northern Maatla a boahlodi
Sotho e šupa dikgorotsheko ka moka ka go Rephabliki (bona s 165(1) ya Molaotheo
Setswana Bothati jwa bosiamisi
bo kaya dikgotlatshekelo tsotlhe mo Rephaboliking (lebelela karolo 165(1) ya
Molaotheo)
Sesotho Bolaodi ba molao
bo bolela makgotla ohle a Rephaboliking (sheba 165(1) ya Molaotheo)
Tshivenda Vhulaedzwa ha vhuhaṱuli/Vhulanguli ha vhuhaṱuli
zwi amba khothe dzoṱhe dzi re kha Riphabuḽiki (kha vha sedze khethekanyo ya 165(1)
ya Ndayotewa)
Afrikaans Regsprekende gesag
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verwys na al die howe in die Republiek (sien art 165(1) van die Grondwet)
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
isiZulu Ukuzimela kwezomthetho
Umbono wokuthi abahluleli kufanele basebenze ngokukhululeka ngaphandle
kokuphazanyiswa yilokho okuvela kwamanye amagatsha kahulumeni noma
izinhlangano ezizimele futhi lokhu kuzofinyelelwa ngokunikeza ukuvikeleka kwamaziko
isiXhosa Ukuzimela kwecandelo lezobulungisa
Ingcamango yokuba iijaji/abagwebi kufanele ukuba bangaphazanyiswa ngamanye
amaSebe karhululemente okanye amaqela abucala, ibe indlela yokwenza oko
ikukuqinisekisa ngezixhobo zokukhusela iintsika zikarhulumente
Northern Tokologo ya boahlodi
Sotho Kgopolo ya gore baahlodi ga ba a swanela go šitišwa go dira mošomo wa bona ke
makala a mangwe a mmušo goba mekgatlo ya praebete gomme e le yeo e
fihlelelwago ka go aba ditšhireletšo tša molaotheo
isiNdebele Ukuzijamele komthetho
Kuyikolelo yokuthi amajaji kufanele akhululeke ekuphazanyisweni ngamanye amagatja
karhulumende nanyana abanye/ezinye iinhlangano zangeqadi kanti lokhu kufikeleleka
ngokuletha imigomo evikelako
Setswana Go ikemela ga bosiamisi
Ntlha ya gore baatlhodi ba tshwanetse gore ba gololesege mo go itshunyeng nko ga
makala a mangwe a puso le maphata a poraefete le e e fitlhelelwang ka go tlamela ka
tlhokomelo mo setheong
Sesotho Boikemelo ba bolaodi
Kgopolo ya hore baahlodi ha ba lokela ho angwa ke makala a mang a mmuso kapa
mekgatlo ya poraefete e leng se fihlelwang ka ho fana ka ditshireletso tsa mekgatlo
siSwati Kutimela kwemajaji
Umcondvo lotsi emajaji kufanele kutsi angafakwa umoya ngulamanye emagatja
ahulumende nome ngemacembu lokuyintfo lefezeka ngekutsi kube netinyatselo
tekuvikela leto tikhungo
Tshivenda Vhuḓivhusi ha vhulamukanyi
Muhumbulo wa uri vhahaṱuli vha tea u vha vho vhofholowaho kha u dzhenela ha
maṅwe matavhi wa muvhuso kana vhathu vha phuraivethe nahone zwi swikelelwaho
nga u ṋekedza tsireledzo ya tshiimiswa
Xitsonga Vutiyimeri bya vuavanyisi bya tikhoto
Muanakanyo wa leswo tijaji (vaavanyisi) va fanele va kota ku endla ntirho wa vona
handle ko kavanyetiwa hi marhavi man’wana ya mfumo kumbe vanhu va le tlhelo vo
tiyimela, leswi swi fikeleriwa hi ku sirhelela tiinstituxini leti ta vuavanyisi
Afrikaans regterlike onafhanklikheid
Die idee dat regters vry moet wees van inmenging deur die ander regeringsvertakkings
of privaat partye; hierdie onafhanklikheid word by wyse van institusionele
beskermingsmaatreëls verkry
Judicial Precedent (stare decisis)
means that the decision of a higher court is binding on lower courts until such time as the decision is
overruled by a higher court. The court is also bound by its own previous decisions unless they are
clearly wrong
isiZulu Judicial precedent (stare decisis)
lokhu kusho ukuthi isinqumo esithathwe yinkantolo ephakeme siyoba yisibopho
ezinkantolo ezingaphansi kwayo ngokwamandla namagunya, kuze kufike isikhathi
lapho isinqumo leso sichithwa yinkantolo ephakeme. Inkantolo inesibopho futhi
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ngokucacile ukuthi ziyaphaphalaza
isiXhosa Isikhokelo senkundla
kuthetha ukuba isigqibo senkundla ephakamileyo siyabophelela kwiinkundla ezincinci
de kube lelo xesha apho isigqibo sikhatywa yinkundla ephakamileyo. Inkundla nayo
ibotshwe zizigqibo zayo zangaphambili ngaphandle kokuba ziphosakele ngokucacileyo
Northern Tirišo ya molao wo o hlomilwego molatong wo o šetšego o ahlotšwe
Sotho e hlaloša gore sephetho sa kgorotsheko ya godingwana ke seo se gapeletšago
dikgorotsheko tša fase go fihlela nako yeo sephetho se sa hlwe se dumelelwa ke
kgorotsheko ya godingwana. Kgorotsheko le yona e gapeletšwa ke diphetho tša yona
tšeo di tšerwego peleng ka ntle ga ge go le molaleng gore di fošagetše
isiNdebele Isiqunto esathathwa yikhoto simuthetho wakusasa
Lokhu kutjho bona isiqunto esathathwa yikhotho ephakemeko sibophelela amakhotho
amancani bekufike isikhathi lapho isiquntweso sitjhugululwe yikhotho ephezulu godu.
Ikhotho nayo godu iyabopheleleka ngeenqunto zayo zeenkhathi ezadlulako
ngaphandle nje kokuba zibe ngezimbi/ngezingakafaneli
Setswana Sekao sa bosiamisi
se kaya tshwetso ya kgotlatshekelo e kgolwane e e tlamang dikgotlatshekelo tse di
kwa tlase go fitlha ka nako e tshwetso eo e ka phimolwang gongwe e ganediwa ke
kgotlatshekelo e kgolwane. Gape kgotlatshekelo e tlamiwa ke ditshwetso tsa yona tsa
pele kwa ntle ga fela fa go totobetse gore di fosagetse
Sesotho Molao o fetileng
e bolela hore qeto ya lekgotla le phahameng e tlama makgotla a tlase ho fihlela
nakong eo ho yona qeto e hlakolwang ke lekgotla le phahameng. Lekgotla le boetse le
tlangwa ke diqeto tsa lona tse fetileng ntle le ha di fosahetse ka ho hlaka
Tshivenda Tsumbo ya vhuhaṱuli/Vhurangeli ha vhuhaṱuli
zwi amba uri tsheo ya khothe khulwane i a vhofha khothe ṱhukhu u swikela itsho
tshifhinga tshine tsheo ya shandukiswa nga khothe khulwane. Khothe na yone i
vhofhiwa nga tsheo dzayo dza kale nga nnḓani ha musi zwi khagala uri dzo khakhea
Afrikaans Regspresedent (stare decisis)
beteken die beslissing van ’n hoër hof bind laer howe tot die beslissing deur ’n hoër hof
omvergewerp word. Die hof word ook deur sy eie vorige beslissings gebind tensy dit
duidelik verkeerd blyk te wees
Judicial Review
the power of the higher courts to control administrative action through an inquiry into any excess of
power, irregularity of procedure, and non-compliance with any of the requirements for the
performance of any administrative action
isiZulu Judicial review
lokhu kusho amandla ezinkantolo eziphakeme okulawula izinqumo nezinyathelo
zeziphathimandla zikahulumeni ngokwenza uphenyo maqondana nokusebenzisa
kwazo amandla namagunya azo ngokweqile, ukungalandeli izinqubo ezibekiwe kanye
nokungathobeli noma yiziphi izidingo eziphathelene nomsebenzi okumele wenziwe
yiziphathimandla zikahulumeni
isiXhosa Ukuhlaziywa kwegunya lokugweba
amandla eenkundla eziphakamileyo ukulawula izenzo zolawulo ngokuphanda nokokuba
ngawaphi amandla ekunokufikelelwa kuwo, ukusebenzisa gwenxa kwenkqubo
nokungalandeli naziphi na iimfuno zokwenza nawuphi na umsebenzi wolawulo
Northern Tshekatsheko ya melao
Sotho maatla a kgorotsheko ya godingwana a go laola tiro ya tshepedišo ka mokgwa wa
nyakišišo go tirišo ye e fetišago magomo ya maatla afe goba afe, tshepedišo ye e sa
latelego molao, go se latele efe goba efe ya dinyakwa tša phethagatšo ya tiro efe goba
efe ya tshepedišo

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isiNdebele Ukubuyekezwa kwesiqunto sekhotho

Lawa kumamandla wekhotho ephakemeko wokulawula izenzo zokuphatha
ngokuphenyisisa kokusetjenziswa kwamandla ngokudluleleko, ngeenkambiso
eziphambene nomthetho, kanye nangokungalandeli ezinye zeemfuneko zokusebenza
kanye nezenzo zokulawula
Setswana Tshekatsheko ya bosiamisi
dithata tsa dikgotlatshekelo tse dikgolwane go laola dikgato tsa tsamaiso ka dipatlisiso
tsa dithata tsa tlaleletso, tsamaiso ka tsela e e sa siamang, le go se obamele
ditlhokego dipe tsa tiragatso ya kgato epe ya tsamaiso
Sesotho Tlhahlobo ya molao
matla a makgotla a phahameng a ho laola ketso ya tsamaiso ka ketso ya ho botsa ka
matla afe kapa afe a feteletseng, ho se tlwaelehe ha mokgwatshebetso, le ho se latele
ditlhoko dife kapa dife bakeng sa tshebetso ya kgato ya tsamaiso
Tshivenda Tsenguluso ya vhuhaṱuli
maanḓa a khothe khulwane a u langa nyito ya ndaulo nga kha tsenguluso kha maanḓa
maṅwe na maṅwe o kalulaho, u sa tshimbidzwa zwavhuḓi na u sa tevhedza ṱhoḓea
dziṅwe na dziṅwe dza u itwa ha nyito ya ndaulo
Afrikaans Geregtelike hersiening
die bevoegdheid van die hoër howe om administratiewe optrede te beheer deur enige
oorskryding van bevoegdhede, prosedurele onreëlmatigheid en nievoldoening aan enige
van die vereistes vir die uitvoering van enige administratiewe optrede te ondersoek
Jurisdiction
The legal authority of members of the judiciary to hear and determine judicial disputes in a specific
geographical area or on specific subject matter
isiZulu Amandla wezomthetho endaweni ethize
Lolu wuphiko lwezomthetho lwamalunga omthetho asebenza ukulalela kanye
nokulamula imibango yezomthetho endaweni encunyiwe noma ngodaba oluthize
isiXhosa Igunya lolawulo lwendawo
Igunya lomthetho lamalungu ezobulungisa lokumamela nokuthatha izigqibo kwiimeko
zobulungisa kwindawo ethile okanye kwimeko ethile
Northern Tokelo ya boahlodi
Sotho Bolaodi bja semolao bja maloko a boahlodi go kwa le go ahlola dingangišano tša
boahlodi lefelong le le itšego goba molatong wo o itšego
isiNdebele Amandla wezomthetho endaweni ethize
Leli kuligunya lezomthetho lamalunga wezomthetho lokulalela nokulamula imibango
yezomthetho endaweni ethize nanyana ngento ethize
Setswana Dithata
Dithata tsa semolao tsa ditokololo tsa bosiamisi go reetsa le go swetsa ka dikgotlhang
tsa bosiamisi mo lefelong le le rileng gongwe mo morerong o o riling
Sesotho Matla a boahlodi
Matla a molaong a ditho tsa boahlodi a ho mamela le ho hlokomela dikgang tsa
boahlodi sebakeng se ikgethang kapa tabeng e ikgethang
siSwati Emandlaluphatfo
Ligunya letemtsetfo lemalunga eluphiko lwetebulungiswa kulalela nekuncuma
tincabano tebulungiswa endzaweni letsite nome eludzabeni lolutsite
Tshivenda Mukano wa mulayo
Maanḓa a mulayo a miraḓo ya vhuhaṱuli u pfa na u dzhia tsheo kha khanedzano dza
vhuhaṱuli kha fhethuvhupo ho khetheaho kana kha ṱhoho yo khetheaho
Xitsonga Matimba ya nawu ya ku teka swiboho no endla vuavanyisi bya nawu
Matimba ya nawu ya swirho swa huvo ya vuavanyisi (judiciary) ku yingisela no tsema
mikwetlembetano eka swa nawu eka ndhawu yo karhi kumbe eka mhaka yo karhi
Afrikaans Jurisdiksie
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geografiese gebied of oor ’n bepaalde onderwerp aan te hoor en daaroor te beslis
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
isiZulu Ukugwebeka
Ngokomthtetho ovela kumthethosisekelo, udaba luyagwebeka uma izinkantolo
zingasebenzisa uMthethosisekelo kwimibango yamaqiniso noma yezemithetho futhi
angamemezela isenzo esingalungile esiphambene noMthethosisekelo
isiXhosa Ebubulungisa
Kumthetho woMgaqo Siseko, umcimbi ububulungisa ukuba iinkundla zamatyala
zingasebenzisa uMgaqo Siseko kwityala okanye ingxabano ngezomthetho, ixele
isenzo esingekho sikweni nesingahambelani noMgaqo Siseko
Northern Go ahlolega
Sotho Molaong wa molaotheo, molato o a ahlolega ge dikgorotsheko di ka diriša Molaotheo
go ka ngangiša ka mabaka goba ka semolao le go tsebagatša tiro go ba ye e
fošagetšego ka go thulana le Molaotheo
isiNdebele Ukugwebeka ngokomthetho
Ngokomthethosisekelo, indaba iyagwebeka lokha nangabe amakhotho angakwazi
ukusebenzisa uMthethosisekelo embangweni weqiniso nanyana embangweni
wezomthetho kanti kungamenyezelwa njengesenzo esiphambene noMthethosisekelo
Setswana E wela mo dithateng/molelwaneng
Mo molaong wa molaotheo, morero o wela mo dithateng fa dikgotlatshekelo di ka dirisa
Molaotheo mo kgotlhannyeng ya dintlha gongwe ya semolao mme e ka goeletsa gore
kgato e e sa tlhomamisiwang e thulana le Molaotheo
Sesotho Ho lokelwa ke kahlolo lekgotleng la molao
Molaong wa motheo, taba e lokelwa ke kahlolo haeba makgotla a ka sebedisa
Molaotheo ho kgang ya nnete kapa ya molao mme a ka phatlalatsa ketso e sa
nepahalang e kgahlanong le Molaotheo
siSwati Nekulalelwa enkantolo
Ngekwqemtsetfo wemtsetfosisekelo, ludzaba lungalalelwa nangabe tinkantolo
tisebentisa Umtsetfosisekelo ngemaphuzu nome incabano ngekwemtsetfo futsi
tingasho kutsi akukho emtsetfweni nakuphambana neMtsetfosisekelo
Tshivenda U imelelea
Kha mulayo wa ndayotewa, mafhungo a a imelelea arali khothe i tshi kona u shumisa
Ndayotewa kha khanedzano ya mbuno kana ya mulayo na u kona u bula nyito i sa
shumi i hanedzanaho na Ndayotewa
Xitsonga Vuavanyiseki hi nawu ekhoto
Eka nawu wa vumbiwa, mhaka yi va leyi avanyisekaku eka nawu loko tikhoto ti kota ku
tirhisa vumbiwa eka vuntiyiso bya mhaka kumbe eka nkwetlembetano eka swa nawu,
na swona vaavanyisi va nga kota ku tsema leswo goza ro karhi ri phikizana na Vumbiwa
Afrikaans Beregbaar
Ingevolge staatsreg is ’n saak beregbaar as die howe die Grondwet op die feitelike of
regsgeskil kan toepas en optrede wat strydig met die Grondwet is, ongeldig kan verklaar
Law
refers to all forms of law, that is, the Constitution, statute law (legislation), common law and
customary law. Common law and customary law is law that is not contained in legislation, but has
been “handed down” from generation to generation. Today this form of law is found largely in the
judgments of our highest courts
isiZulu Umthetho
lokhu kusho zonke izinhlobo zomthetho, okusho, uMthethosisekelo, imithetho ebhalwe

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phansi, imithetho engabhaliwe phansi kanye nemithetho yendabuko. Imithetho

engabhaliwe phansi kanye nemithetho yendabuko yimithetho engaqukethwe
emithethweni ebhalwe phansi, kodwa yimithetho “edluliswa’ yisizukulwane iye
kwesinye isizukulwane. Esikhathini sanamuhla, lolu hlobo lwemithetho lutholakala
ikakhulukazi ezinqumweni zenkantolo ephakeme
isiXhosa Umthetho
ubhekisela kuzo zonke iintlobo/iindidi zomthetho, oko kukuthi, uMgaqo-siseko, umthetho
welizwe (uwiso-mthetho), umthetho oqhelekileyo kunye nomthetho wesintu. Umthetho
oqhelekileyo kunye nomthetho wesintu ngumthetho ongafakwanga kumqulu wowiso-
mthetho, kodwa "ubekiwe” kwizizukulwana ngezizukulwana. Namhlanje olu hlobo
lomthetho lufumaneka ikakhulu kwizigwebo zeenkundla zethu eziphakamileyo
Northern Molao
Sotho e šupa dipopego ka moka tša molao, ke gore, Molaotheo, melao yeo e ngwadilwego
(tlhakamolao), melao go ya ka diphetho tša kgorotsheko le melao ya tlwaelo. Melao go
ya ka diphetho tša kgorotsheko le melao ya tlwaelo ke molao wo o sego ka go
tlhakamolao, eupša o “fetišitšwego” go tšwa molokong wo mongwe go iša go wo o
latelago. Lehono, mohuta wo wa molao o hwetšwa gagolo dikahlolong tša
dikgorotsheko tša godingwana tša rena
isiNdebele UMthetho
Kutjhiwo zoke iindlela zomthetho, lezo, uMthethosisekelo, imithetho ephasiswe
epalamende (legislation), imithetho engakatlolwa phasi kanye nemithetho yendabuko.
Imithetho engakatlolwa phasi kanye nemithetho yendabuko akusiyo imithetho
ephasiswe yipalamende, kodwana kumithetho edluliselwa kusizukulwane
ngesizukulwane. Namhlanjesi lemhlobo yemithetho itholakala khulu eenquntweni
ezithathwa ziinkhotho eziphezulu
Setswana Molao
o kaya mefuta yotlhe ya molao, go tewa, Molaotheo, molao o o fetisitsweng (molao),
molao wa tlwaelo le molao wa setso. Molao wa tlwaelo le molao wa setso ke molao o o
sa fitlhelweng mo melaong e e kwadilweng, fela e “fetisitswe” go tswa mo tshikeng e
nngwe go ya go e nngwe. Gompieno mofuta ono wa molao o fitlhelwa thata mo
dikatlholong tsa dikgotlatshekelo tse dikgolo
Sesotho Molao
o bolela mefuta yohle ya molao, ke hore, Molaotheo, molao o tlwaelehileng o
ngotsweng (molao), molao o tlwaelehileng le molao wa tlwaelo. Molao o tlwaelehileng
le molao wa tlwaelo ke molao o seng teng molaong o kopanetsweng, empa o
“fetisitswe” ho tloha molokong ho ya ho o mong. Kajeno mofuta ona wa molao o
fumanwa haholo dikahlolong tsa makgotla a rona a phahameng
Tshivenda Mulayo
zwi amba tshaka dzoṱhe dza mulayo, dzi re, Ndayotewa, mulayo mulaedzwa (theo ya
mulayo), mulayo wa nḓowelo na mulayo wa maitele. Mulayo wa nḓowelo na mulayo
wa maitele ndi mulayo u re kha theo ya mualyo, une wo “pfukiswa” u bva kha murafho
u yak ha muṅwe. Ṋamusi ndi lushaka lwa mulayo une wa wanelesa kha khaṱhulo dza
khothe khulwanesa
Afrikaans Reg
verwys na alle vorme van die reg, met ander woorde die Grondwet, wettereg
(wetgewing), gemenereg en gewoontereg. Gemenereg en gewoontereg is reg wat nie
in wetgewing vervat is nie, maar van geslag tot geslag “oorgedra” is. Hierdie vorm van
die reg word deesdae hoofsaaklik in die beslissings van ons hoogste howe gevind
Legality
refers to lawfulness of state action: in other words, government by the law and under the law. All
government action must be performed in accordance with certain set legal principles
isiZulu Ukuba semthethweni

333
 lokhu kusho ukuba semthethweni kwesenzo noma isinyathelo sombuso: ngamanye
amagama, kusho ukuphatha ngokomthetho futhi ngokulandela umthetho. Zonke izenzo
noma izinyathelo zikahulumeni kumele zenziwe ngokuhambisana nemithetho ethile
isiXhosa Ubumthetho
bubhekisela ekugcinweni kwezenzo zomthetho zikarhulumente: ngamanye amazwi,
urhulumente ngokomthetho nangaphantsi komthetho. Zonke izenzo zorhulumente
kufuneka zenziwe ngokuhambelana nemimiselo ethile yomthetho
Northern Bomolao
Sotho E šupa go ba molaong ga tiro ya pušo: ka mantšu a mangwe, mmušo go ya ka molao
gape ka fase ga molao. Tiro ka moka ya mmušo e swanetšwe go phethagatšwa go ya
ka ditshepedišo tše beilwego tša molao
isiNdebele Ukukhambisana nomthetho
Lokhu kutjho isenzo sokukhambisana nomthetho (lawfulness): Ngamanye amagama,
urhulumende ukhambisana nomthetho bewungaphasi komthetho. Yoke imisebenzi
karhulumende kufanele yenziwe ngokukhambisana nesede ethileko yemigomo
Setswana Bosemolao
bo kaya go nna mo molaong ga dikgato tsa puso: ka mantswe a mangwe, puso ka
molao le ka fa tlase ga molao. Dikgato tsotlhe tsa puso di tshwanetse go diragadiwa go
ya ka dintlhatheo dingwe tse di tlhomilweng tsa semolao
Sesotho Tatelo ya molao
e bolela ho ba molaong ha ketso ya naha: ka mantswe a mang, mmuso ka molao le ka
tlasa molao. Diketso tsohle tsa mmuso di lokela ho etswa ho latela ditheo tsa molao
tse itseng tse behilweng
Tshivenda U vha mulayoni
zwi amba u tea ha mulayo wa nyito ya muvhuso: nga maṅwe maipfi, shango nga mulayo
na nga fhasi ha mulayo. Nyito dzoṱhe dzi tea u itwa maelana na milayo ya mulayo yo tiwaho
Afrikaans Wettigheid
verwys na die regmatigheid van staatsoptrede: met ander woorde regering deur die reg
en onderworpe aan die reg. Alle regeringsoptrede moet in ooreenstemming met sekere
voorgeskrewe regsbeginsels plaasvind
Legislature
a body of persons who have been elected and who make laws. The collective name for these laws
(or statutes) is legislation. In South Africa we have the national legislature (parliament) which
makes laws for the whole country on any subject. We also have provincial legislatures which make
laws for the provinces on certain subjects only, as well as local government legislatures (municipal
councils) which make by-laws for their areas (also on certain subjects only). Please make sure you
understand the difference between “legislature”, “legislation” and “legislative”
isiZulu Isishayamthetho
lokhu kusho iqembu labantu abakhethiweyo abashaya imithetho. Igama eliqoqela
ndawonye yonke le mithetho (noma ama-statutes) yigama elithi legislation.
ENingizimu Afrika sinesishayamthetho sikazwelonke (iphalamende) esishaya imithetho
eqondiswe ezweni lonke, okuyimithetho ephathelene nanoma yiluphi udaba noma
isihloko. Futhi sinezishayamthetho zezifundazwe ezishaya imithetho eqondene
nezifundazwe mayelana nezindaba noma izihloko ezithile kuphela, kanye
nezishayamthetho zohulumeni bezindawo (imikhandlu yomasipala) ezishaya imithetho
yomasipala ezindaweni ezingaphansi kwazo (lokhu kuphathelene nezindaba noma
izihloko ezithile kuphela). Qinisekisa ukuthi uyawuqonda umehluko phakathi
“kwesishayamthetho”, “umthetho” kanye “nokuphathelene nokushaywa kwemithetho”
isiXhosa Isigqeba sowiso-mthetho
ngabantu abakhethiweyo nabenza imithetho. Igama elihlangeneyo yale mithetho
(okanye imimiselo) luwiso-mthetho. EMzantsi Afrika sinesigqeba sowiso-mthetho
lwesizwe (ipalamente) olwenza imithetho yelizwe lonke nakwesiphi na isihloko/umcimbi.
Sinezigqeba zowiso-mithetho lwamaphondo ezenza imithetho yamaphondo kwimicimbi
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ethile kuphela, kunye nezigqeba zowiso-mthetho zorhulumente wasekhaya (amabhunga

oomasipala) ezenza imithetho kamasipala kwimimandla yabo (nakwimicimbi ethile
kuphela). Nceda uqinisekise ukuba uyawuqonda umahluko phakathi “isigqeba sowiso-
mthetho”, “imithetho yonke nemimiselo” kunye “namandla okwenza umthetho”
Northern Lekgotlapeamelao
Sotho Ke sehlopha sa batho bao ba kgethilwego gomme ba dira melao. Leinakakaratšo la
melao ye ke tlhakamolao. Ka Afrika Borwa re na le lekgotlapeamelao la bosetšhaba
(palamente) leo le dirago melao melao ya naga ka moka ka sehlogo sefe goba sefe.Re
na le gape makgotlapeamelao a diprofense ao a dirago melao ya diprofense ka
dihlogotaba tše itšeng fela, gammogo le makgotlapeamelao a mebušo ya selegae
(dikhansele tša mebasepala) ao a dirago melawana ya ditikologo tša yona (gape ka ga
dihlogotaba tše dingwe fela). Netefatša gore o kwešiša phapang gare ga
“lekgotlapeamelao”, “tlhakamolao” le “maatla a go dira melao”
isiNdebele IsiBethamthetho
Lokhu kungahlathululwa njengabantu abakhethiweko ukobana benze imithetho. Igama
linye elihlathulula imithetho le (or statues) kumthetho ophasisweko. ESewula Afrika
sinesibethamthetho senarha (ipalamende) esenza imithetho yenarha yoke kunanyana
ngiyiphi into. Begodu sineembethamthetho zesifunda ezenza imithetho yeemfunda
kwezinye izinto kwaphela, kanye neembethamthetho zabomasipalada bemakhaya
(imikhandlu yabomasipalada) eyenza imithetho (by-laws) yeendawo zabo (kezinye
izinto ezithileko kwaphela). Sibawa bonyana uqinisekise ukobana uzwisisa umehluko
ophakathi kwesibethamthetho “legislature” kanye nomthetho “legislation” kanye
ngokomthetho ophasisweko “legislative”
Setswana Kgotlatheomolao
ke setlhopha sa batho ba ba tlhophilweng le ba ba dirang melao. Leinagoboka la
melao eno (gongwe melao e e fetisitsweng) ke melao. Mo Aforikaborwa re na le
kgotlatheomolao ya bosetšhaba (palamente) e e dirang melao ya naga yotlhe ka
morero ope fela. Gape re na le dikgotlatheomolao tsa diporofense tse di dirang melao
ya diporofense mo mererong e e rileng fela, gammogo le dikgotlatheomolao tsa
pusoselegae (makgotlatoropo) tse di dirang melawana ya dikgaolo tsa yona (le gona
mo mererong e e rileng fela). Tsweetswee netefatsa gore o tlhaloganya pharologano
magareng ga "kgotlatheomolao", "molao" le "theomolao"
Sesotho Mokgatlo wa melao ya naha
ke mokgatlo wa batho ba kgethilweng mme ba etsang melao. Lebitso le kopanetsweng
la melao ena (kapa melao e ngotsweng) ke molao o kopantsweng. Afrika Borwa mona
re na le mokgatlo wa melao wa naha (paramente) o etsang melao bakeng sa naha
yohle tabeng efe kapa efe. Re boetse re na le mekgatlo ya melao ya naha ya
diporofense e etsang melao bakeng sa diporofense ditabeng tse itseng feela,
hammoho le mekgatlo ya melao ya naha ya mmuso wa lehae (makgotla a mmasepala)
e etsang melaotheo bakeng sa dibaka tsa yona (e boetse e le ditabeng tse itseng
feela). Ka kopo etsa bonnete ba hore o utlwisisa phapano dipakeng tsa “mokgatlo wa
melao ya naha”, “molao o kopanetsweng” le “matla a ho etsa melao”
Tshivenda Vhusimamulayo
ndi tshigwada tsha vhathu vho nangiwaho nahone vha itaho milayo. Dzina nyangaredzi
ḽa milayo iyi (kana ndaela) ndi theo ya mulayo. Kha ḽa Afrika Tshipembe ri na
vhusimamilayo ha lushaka (phalamennde) ine ya ita milayo ya shango ḽoṱhe kha
vhathu vhoṱhe. Ri dovha ra vha na vhusimamilayo ha vundu vhu itaho milayo u itela
mavundu kha vhaṅwe vhathu
Afrikaans Wetgewer
is ’n groep persone wat verkies is en wat wette maak. Die kollektiewe naam vir hierdie
wette is wetgewing. In Suid-Afrika het ons die nasionale wetgewer (die parlement) wat
wette oor enige onderwerp vir die hele land maak. Ons het ook provinsiale wetgewers
wat wette oor net sekere onderwerpe vir die provinsies maak sowel as die wetgewers
van die plaaslike owerhede (munisipale rade) wat verordeninge vir hulle gebiede
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 uitvaardig (ook net oor sekere onderwerpe). Maak asseblief seker u verstaan die
verskil tussen “wetgewer”, “wetgewing” en “wetgewend”
Mala fide
Bad faith; acting with intent to deceive
isiZulu Ukungathembeki/ngokungathembekile
Ukungathembeki; ukusebenza ngenhloso yokukhohlisa
isiXhosa Mala fide
Izenzo ezingathembekanga; ezinenjongo yokukhohlisa
Northern Mala fide
Sotho Tumelo e mpe; go dira ka nepo ya go fora
isiNdebele Ukungathembeki/ngokungathembeki
Ngokungathembeki; ukuthatha isiqunto esinqophe ukukhohlisa
Setswana Mala fide
Tsietso; go dira ka maikaelelo a go tsietsa
Sesotho Mala fide
Tumelo e mpe; ho ikemisetsa ho qhekella
siSwati Inkhohliso
Kukhohlisa; kwenta ngendlela yekukhohlisa
Tshivenda Mala fide
Lutendo luvhi, u ita wo ḓiimisela u fhura
Xitsonga Vukala-vutshembeki na ntiyiso
Ku endla swilo hi moya wo biha, ku endla nchumu hi xikongomelo xo xisa
Afrikaans mala fide
te kwader trou; iets doen met die doel om te mislei
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
isiZulu IsiShayamthetho sikaZwelonke
YiNdlu engaphansi yePhalamende lezwe laseNingizimu Afrika eliqukethe amalunga ayi
400 akhethwe okhethweni lukazwelonke ngaphansi kohlelo bokumeleka
ngokwesilinganiso ukumela izimvo zabavoti bonke
isiXhosa INdibano kaZwelonke (i-National Assembly)
INdlu engezantsi yePalamente yesizwe soMzantsi Afrika, enamalungu angama-400
anyulwe kukhetho lukazwelonke ngokusebenzisa inkqubo yomelo oluhambelana
namanani amaqela opolitiko namele iimfuno zabavoti
Northern Seboka sa Maloko a Palamente
Sotho Ntlo ya tlase ya Palamente ya bosetšhaba ya Afrika Borwa ye e nago le baemedi ba
400 bao ba kgethilwego dikgethong kakaretšo ka sestemo ya tekanyetšo ya kemedi go
emela dikgahlego tša bakgethi ka moka
isiNdebele IsiBethamthetho seNarha
Le kuyiNdlu engaphasi yePalamende yeSewula Afrika enamalunga ama-400 akhethwe
emakhethweni wenarha ngesistimu yobujameli besilinganiso senani lamavowudu
ukujamela iinkareko zabavowudu boke
Setswana Kokoanotheomolao ya Bosetšhaba
Ntlo e e kwa tlase ya Palamente ya bosetšhaba ya Aforikaborwa e e nang le ditokololo
tse 400 tse di tlhophilweng mo ditlhophokakaretsong ka thulaganyo ya kemedi ka
tekatekano go emela dikgatlhegelo tsa batlhophi botlhe
Sesotho Seboka sa Naha
Ntlo e tlasenyana ya Paramente ya naha ya Afrika Borwa e nang le ditho tse 400 tse
kgethuweng dikgethong tse akaretsang ka tsamaiso ya boemedi bo lekanang ho emela

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dithahasello tsa bohle ba kgethilweng

siSwati Libandla laVelonkhe
Indlu lephasi ePhalamende yavelonkhe yaseNingizimu Afrika yakhiwa ngemalunga
lange-400 lakhetfwe elukhetfweni jikelele ngekusebentisa indlela yekwabiwa kwetihlalo
ngekwemavoti kute amele loko lokufuna bavoti
Tshivenda Buthano ḽa Lushaka
Nnḓu ya fhasi ya Phalamennde ya lushaka ya Afrika Tshipembe i na miraḓo ya 400 yo
khethiwaho nga kha khetho guṱe nga kha sisiṱeme ya vhaimeleli vha re na ndivhanele
u itela u imelela madzangalelo a vhakhethi vhoṱhe
Xitsonga Huvo ya tiko ya palamende
Huvo ya tiko ya Palamende ya Afrika Dzonga yi na swirho swa 400 leswi nga
hlawuriwa eka nhlawulo wa hinkwavo hi sisteme ya vuyimeriwa hi ku ringana nhlayo ya
vavhoti va vandla ro karhi ku yimela swilaveko swa vavhoti
Afrikaans Nasionale Vergadering
Die laerhuis van die nasionale parlement van Suid-Afrika, bestaande uit 400 lede wat
in ’n algemene verkiesing by wyse van die stelsel van proporsionele verteenwoordiging
verkies is om die belange van die kieserskorps in die geheel te verteenwoordig
National Council of Provinces
The second (upper) 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
isiZulu UMkhandlu weZwe owengamele iziFundazwe
YiNdlu yesibili engaphezulu yePhalamende lezwe laseNingizimu Afrika eliqukethe
abameli abayi 10 abavela kuzo zonke izifundazwe, empeleni bamele izimvo zabantu
ezivela ezifundeni ohlelweni lwezokwenziwa kwemithetho
isiXhosa IBhunga laMaphondo kaZwelonke
INdlu yesibini (engentla) yePalamente yesizwe soMzantsi Afrika enabameli abali-10
bephondo ngalinye, bemele iimfuno zamaphondo kwinkqubo yokuyila imithetho yelizwe
Northern Lekgotla la Bosetšhaba la Diprofense
Sotho Ntlo ya bobedi (ya godimo) ya Palamente ya bosetšhaba ya Afrika Borwa ye e nago le
baemedi ba 10 go tšwa profenseng ye nngwe le ye nngwe, bao kudukudu ba emelago
dikgahlego tša diprofense tshepetšong ya bosetšhaba ya go dira molao
isiNdebele UMkhandlu weNarha oweNgamele iimFunda
INdlu yesibili engaphezulu yesibethamthetho senarha sePalamende yeSewula Afrika
inabajameli abali-10 abaphuma eemfundeni zoke, kokuthoma bajamele iinkareko
zeemfunda ehlelweni lokwenziwa komthetho
Setswana Lekgotla la Bosetšhaba la Diporofense
Ntlo ya bobedi (kwa godimo) ya Palamente ya bosetšhaba ya Aforikaborwa e e nang le
baemedi ba le 10 go tswa kwa porofenseng nngwe le nngwe, ba tota ba emetseng
dikgatlhegelo tsa diporofense mo thulaganyong ya bosetšhaba ya go thaya molao
Sesotho Lekgotla la Naha la Diporofense
Ntlo ya bobedi (e hodimonyana) ya Paramente ya naha ya Afrika Borwa e nang le
baemedi ba 10 ho tswa porofenseng ka nngwe, haholo-holo ba emelang dithahasello
tsa diporofense ketsahalong ya ketso ya molao wa naha
siSwati Umkhandlu waVelonkhe weTifundza
Indlu yesibili(lesetulu) ePhalamende yavelonkhe yaseNingizimu Afrika leyakhiwa
titfunywa leti-10 letibuya kuleso nakuleso sifundza, ikakhulu lamelele loko lokufunwa
tifundza enchubeni yavelonkhe yekushaya umtsetfo
Tshivenda Khoro ya Lushaka ya Mavundu
Nnḓu ya vhuvhili (ya nṱha) ya Phalamennde ya lushaka ya Afrika Tshipembe ire na
vhurumelwa ha 10 u bva kha vundu ḽiṅwe na ḽiṅwe, vhane vho imelela nga maanḓa
madzangalelo a madzingu kha u itwa ha mulayo wa lushaka
Xitsonga Huvo ya tiko ya swifundzhankulu (tiprovhinsi)

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 Huvo ya tiko (ya le henhla) eka Palamende ya Tiko ya Afrika Dzonga leyi nga na
swirho swa khume (10) swo huma eka provhinsi (xifundzhankulu) xin’wana na
xin’wana, xa vayimeri va swilaveko swa swifundzhankulu eka ku endliwa ka milawu
Afrikaans Nasionale Raad van Provinsies
Die tweede huis (hoërhuis) van die nasionale parlement van Suid-Afrika, bestaande uit
10 afgevaardigdes van elke provinsie wat hoofsaaklik die belange van die provinsies in
die nasionale wetgewende proses verteenwoordig
Organ of state
“organ of state” is defined in section 239 of the Constitution and includes (a) any department of state
or administration in the national, provincial or local sphere of government; or any other functionary
or institution that (i) exercises a power or performs a function in terms of the Constitution or a
provincial constitution; or (ii) exercises a public power or performs a public function in terms of any
legislation. However, a court or a judicial officer is not included
isiZulu Organ of state
“organ of state” is defined in section 239 of the Constitution and includes (a) any
department of state or administration in the national, provincial or local sphere of
government; or any other functionary or institution that (i) exercises a power or
performs a function in terms of the Constitution or a provincial constitution; or (ii)
exercises a public power or performs a public function in terms of any legislation.
However, a court or a judicial officer is not included
isiXhosa Umbutho wombuso
"Umbutho wombuso" uchazwa kwicandelo 239 loMgaqo-siseko kwaye liquka (a)
naliphi na isebe likarhulumente okanye ulawulo kurhulumente kazwelonke, wephondo
okanye wasekhaya; okanye nawuphi na umsebenzi okanye iziko (i) elisebenzisa
amandla okanye lenza umsebenzi ngokwemigaqo yoMgaqo-siseko okanye umgaqo-
siseko wephondo; okanye (ii) lisebenzisa amandla karhulumente okanye lenza
umsebenzi woluntu ngokwemimiselo yawo nawuphi na umthetho. Nangona kunjalo,
inkundla okanye igosa lasemthethweni alibandakanywa
Northern Setho sa mmušo
Sotho “setho sa mmušo” e hlalošwa ka go kgaolo ya 239 ya Molaotheo gomme e akaretša (a)
kgoro efe goba efe ya mmušo goba taolo lekaleng la mmušo wa bosetšhaba, profense
goba selegae, goba mokgatlo ofe goba ofe goba sehlongwa seo (i) se phethagatšago
maatla goba mošomo go ya ka Molaotheo goba molaotheo wa profense, goba (ii) seo
se šomišago maatla a setšhaba goba phethagatšago mošomo wa setšhaba go ya ka
tlhakamolao efe goba efe. Le ge go le bjalo, kgorotsheko goba mohlankedi wa
boahlodi ga a akaretšwe
isiNdebele IPhiko loMbuso
Iphiko lombuso elihlathululwa esiGabeni 239 soMthethosisekelo begodu sifaka (a)
nginanyana ngimuphi umnyango nanyana iziko elilawulako elisesigabeni
sikarhulumende wenarha, wesifunda nanyana wemakhaya ; nanyana elinye nje
ihlangano nanyana iziko leyo (i) esebenzisa amandla wayo nanyana eyenza umsebenzi
wayo ngokoMthethosisekelo nanyana ngokomthethosisekelo wesifunda; nanyana (ii)
ukusebenzisa amandla womphakathi nanyana ukwenza umsebenzi womphakathi
ngokulandela nginanyana ngimuphi umthetho. Nanyana kunjalo, ikhotho nanyana
isisebenzi sezomthetho asifakwa lapha
Setswana Karolo ya mmuso
"karolo ya mmuso" jaaka e tlhalosiwa mo karolo 239 ya Molaotheo e akaretsa (a)
lefapha lepe la mmuso gongwe tsamaiso mo legatong la puso la bosetšhaba,
porofense gongwe selegae; gongwe motlhankedi ope o mongwe gongwe setheo se se
(i) diragatsang dithata gongwe se diragatsa tiro go ya ka Molaotheo gongwe
molaotheo wa porofense; gongwe (ii) se diragatsa dithata tsa setšhaba gongwe se
diragatsa tiro ya setšhaba go ya ka molao ope fela. Le gale, ga go akarediwe
kgotlatshekelo gongwe motlhankedi wa bosiamisi
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Sesotho Setho sa naha

“setho sa naha” se hlaloswa karolong ya 239 ya Molaotheo mme se kenyelletsa (a)
lefapha lefe kapa lefe la naha kapa tsamaiso karolong ya mmuso ya naha, porofense
kapa lehae; kapa motho ofe kapa ofe ya boholong kapa theo e (i) sebedisang matla
kapa e etsang tshebetso ya ho latela Molaotheo kapa molaotheo wa porofense; kapa
(ii) e sebedisang matla a setjhaba kapa e etsang tshebetso ya setjhaba ho latela molao
ofe kapa ofe o kopanetsweng. Leha ho le jwalo, lekgotla kapa ofisiri ya boahlodi ha ba
kenyelletswa
Tshivenda Khethekanyo dza muvhuso
“khethekanyo dza shango” dzi ṱalutshedzwa kha khethekanyo ya vhu 239 ya
Ndayotewa nahone dzi katela (a) muhasho muṅwe na muṅwe wa muvhuso kana
ndaulo I re kha vhuimo ha lushaka, ha vundu kana hapo ha shango; kana mushumeli
muṅwe na muṅwe kana tshiimiswa tshine (i) tsha shumisa maanḓa kana u ita mushumo
u ya nga ha Ndayotewa kana ndayotewa ya vundu; kana (ii) u shumisa maanḓa a nnyi
na nnyi kana u shuma mushumo wa nnyi na nnyi u ya nga ha theo ya mulayo iṅwe na
iṅwe. Naho zwo ralo, khothe kana muofisiri wa vhuhaṱuli a vho ngo katelwa
Afrikaans Staatsorgaan
“staatsorgaan” word in artikel 239 van die Grondwet omskryf en sluit in (a) enige
staatsdepartement of administrasie in die nasionale, provinsiale of plaaslike
regeringsfeer; of enige ander funksionaris of instelling wat (i) ingevolge die Grondwet
of ’n provinsiale grondwet ’n bevoegdheid uitoefen of ’n funksie verrig; of (ii) ingevolge
wetgewing ’n openbare bevoegdheid uitoefen of ’n openbare funksie verrig. Dit sluit
egter nie ’n hof of ’n regterlike beampte in nie
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

isiZulu IPhalamende
NgokoMthethosisekelo waseNingizimu Afrika, leli yigama elilodwa elisho
isiShayamthetho seZwe kanye noMkhandlu weZwe owengamele weziFundazwe,
iziNdlu ezimbili zesishayamthetho sezwe zinikezwe ngokuhlanganyela igunya
lokuphasisa umthetho kanye nokugcwalisa eminye imisebenzi yesishayamthetho sezwe
isiXhosa IPalamente
Kumthetho woMgaqo Siseko waseMzantsi Afrika, ligama eliquka Indibano kaZwelonke
neBhunga laMaphondo kaZwelonke. Ezi zindlu ezimbini zowiso mthetho wesizwe,
zinekezwe amandla okusebenzisana ukudlulisa imithetho nokuqhuba eminye
imisebenzi yowiso mthetho esizweni
Northern Palamente
Sotho Molaong wa molaotheo ka Afrika Borwa, ke leinakgoboko la Seboka sa Maloko a
Palamente le Lekgotla la Bosetšhaba la Diprofense, Dintlo tše pedi tša
lekgotlapeamelao la bosetšhaba tše di matlafaditšwego ka tlhakanelo go hlama melao
le go dira mediro ye mengwe ya lekgotlapeamelao la bosetšhaba
isiNdebele IPalamende
NgokoMthethosisekelo weSewula Afrika kuligama elilodwa elitjho isiBethamthetho
seNarha kanye noMkhandlu weNarha oweNgamele iimFunda, iziNdlu ezimbili
zesiBethamthetho wenarha zinikelwe ngokuhlanganyela amandla wokuphasisa
umthetho kanye nokugcwalisekisa eminye imisebenzi yesibethamthetho wenarha
Setswana Palamente
Mo molaong wa Aforikaborwa wa molaotheo, ke leinagoboka la Kokoanotheomolao le
Lekgotla la Bosetšhaba la Diporofense, Dintlo tse pedi tsa kgotlatheomolao ya
bosetšhaba tse mmogo di nang le dithata tsa go fetisa molao le go diragatsa ditiro tse
dingwe tsa kgotlatheomolao

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 Sesotho Paramente
Molaong wa motheo wa Afrika Borwa ke lebitso le akaretsang la Seboka sa Naha le
Lekgotla la Naha la Diporofense, Matlo a mabedi a mokgatlo wa melao ya naha e
matlafatswang ka tumellano ho fetisa melao ya naha le ho phethahatsa mesebetsi e
meng ya mokgatlo wa melao ya naha
siSwati Iphalamende
Ngekwemtsetfo wemtsetfosisekelo waseNingizimu Afrika ligama lelishwambakanya
Libandla laVelonkhe kanye neMkhandlu waVelonkhe weTifundza, leTindlu letimbili
tesishayamtsetfo savelonkhe tinikwe emandla ngekuhlanganyela kutsi tiphasise
umtsetfo Kanye nekwenta leminye imisebenti yesishayamtsetfo savelonkhe
Tshivenda Phalamennde
Kha mulayo wa ndayotewa ya Afrika Tshipembe ndi dzinaguṱe ḽa Buthano ḽa Lushaka
na Khoro ya Lushaka ya Mabundu, Nnḓu mbili dza vhusimamilayo ha lushaka dzo
ṋewaho maanḓa kathihi a u phasisa theo ya mulayo na u khunyeledza mishumo ya
vhusimamilayo ha lushaka
Xitsonga Palamende
Eka nawu wa vumbiwa, vito ro angarhela ra Huvo ya Tiko na Huvo ya Khansela ya
Swifundzhankulu, tihuvo timbirhi na ku endla milawu ti na matimba loko ti hlangane
kun’we ku pasisa milawu no endla mitirho ya huvo ya palamende
Afrikaans Parlement
In Suid-Afrikaanse staatsreg is “parlement” die kollektiewe naam vir die Nasionale
Vergadering en die Nasionale Raad van Provinsies, dit wil sê, die twee huise van die
nasionale wetgewende gesag wat gemeenskaplike bevoegdheid het om wetgewing
goed te keur en die ander pligte van die nasionale wetgewende gesag na te kom
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
isiZulu Igunya/amandla ePhalamende
Wumthetho othi amaLunga ePhalamende anamandla ezomthetho obavikela emacaleni
abantu noma obugebengu ngezenzo ezenziwayo noma izitatimenti ezenziwe
ngesikhathi semisebenzi yesishayamthetho
isiXhosa Amalungelo ePalamente
Umthetho othi amalungu ePalamente akhuselekile ngokomthetho ngezenzo zabo
zolwaphulo mthetho ngexesha beqhuba imisebenzi yabo yowiso mthetho
Northern Tokelo ya palamente
Sotho Molao wa gore Maloko a Palamente a na le tšhireletšo ya semolao ye e ba šireletšago
kgahlanong le boikarabelo bja setšhaba goba bosenyi ka ditiro tše ba di dirilego goba
ditatamente tše ba di boletšego nakong ya mediro ya bona ya go hlama melao
isiNdebele Igunya/amandla wePalamende
Kumthetho wokuthi amalunga wePalamende anomthetho owavikela ukobana
bangabotjhwa ngezenzo zabo zemilandu yabantu nobulelesi ngezenzo abazenzako
ngesikhathi kwenziwa imithetho yepalamende
Setswana Tshiamelo ya bopalamente
Molawana o o reng Ditokololo tsa Palamente di na le kgololo ya semolao e e ba
sireletsang kgatlhanong le maikarabelo a setšhaba gongwe a bosenyi ka ntlha ya ditiro
tse di dirilweng gongwe dipolelo tse di di dirileng mo tsamaong ya tiro ya tsona ya semolao
Sesotho Tokelo ya paramente
Molao wa hore Ditho tsa Paramente di na le tshireletso ya molao e ba sireletsang
kgahlanong le boikarabello ba setjhaba le botlokotsebe bakeng sa diketso kapa
dipolelo tse entsweng nakong ya mesebetsi ya bona ya melao ya naha
siSwati Kuvikeleka kwelilunga lasePhalamende
Umtsetfo lotsi eMalunga ePhalamende avikelwe ngumtsetfo kutsi angabekwa licala
lebugebengu nome letincabano emkhatsini webantfu ngenca yalakwentile nome
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Tshivenda Vhuṱalu ha phalamennde
Mulayo wa uri Miraḓo ya Phalamennde i na tsireledzo ya mulayo ine ya vha tsireledza
kha milandu ya siviḽi na ya vhugevhenga kha nyito dzo itwaho kana zwiṱaṱamennde
zwo itwaho musi wa u ita mishumo yavho ya theo ya mulayo
Xitsonga Ku sirheleriwa hi nawu eka leswi Xirho xa Palamende xi swi vulaku epalamende
Nawu wa leswo Swirho swa Palamende swi sirheleriwe hi nawu eka ku vekiwa
milandzu ya vugevenga kumbe ya swa vuxakelani na vanhu (civil liability) eka magoza
kumbe switatimende leswi swi endliwaka hi nkarhi wa ku endla mintirho ya palamende
Afrikaans parlementêre voorreg
Die reël dat lede van die parlement regsimmuniteit het wat hulle beskerm teen siviele
of strafregtelike aanspreeklikheid vir handelinge of uitlatings wat hulle in die loop van
hulle wetgewende pligte verrig of maak
Parliamentary sovereignty
means Parliament is supreme. This was the system of government which operated in South Africa
before the 1993 Constitution came into operation and is still the system which operates in Britain,
called the “Westminster system”. In such a system not only is Parliament the highest legislative
body, capable of enacting any laws, it wishes, but no court may test the substance of parliamentary
Acts or statutes against standards such as fairness and equality and the courts cannot declare such
laws invalid if for example, they are unfair or unreasonable
isiZulu Ukuzimela kwephalamende
lokhu kusho ukuthi iPhalamende lingungqoshishilizi. Lolu wuhlelo lukahulumeni olwabe
lusetshenziswa eNingizimu Afrika ngaphambi kokuqala kokusebenza
koMthethosisekelo we-1993 futhi wuhlelo olusasetshenziswa namanje ezweni lase-
Britain, olubizwa nge-“Westminster system”. Ngaphansi kohlelo olunjalo iPhalamende
aligcini nje kuphela ngokuba wuhlaka olushaya imithetho oluphakeme kunazo zonke,
olungashaya noma yimuphi umthetho elifuna ukuwushaya futhi ngaphezu kwalokho
ayikho inkantolo enelungelo lokuhlola nokuvivinya ukufaneleka kweMithetho eshaywe
yiphalamende ngokuyiqhathanisa namazinga-migomo enjengobulungiswa nobuqotho
kanye nokulingana, futhi izinkantolo azinawo amandla okunquma ukuthi leyo mithetho
iyinto engasebenzi futhi eyize leze uma, isibonelo, ingenabo ubulungiswa futhi uma
iyimithetho engenangqondo
isiXhosa Igunya lolawulo elizimeleyo
kuthetha ukuba iPalamente yeyona inegunya elikhulu/eliphezulu. Le yayinkqubo
karhulumente eyayisebenza eMzantsi Afrika ngaphambi kokuba uMthetho-siseko we-
1993 uqale ukusebenza kwaye iseyinkqubo esebenzayo eBrithani, ebizwa ngokuba yi
“Westminster system”. Kwinkqubo enjalo akungakuba iPalamente lelona qumrhu
lezomthetho eliphezulu kuphela, elikwazi ukumisela nayiphi na imithetho,
eliyinqwenelayo, kodwa akukho nkundla inokuvavanya okona kuqulethwe kwiMimiselo
yePalamente okanye imithetho ehambelana nemigangatho efana nobulungisa
nokulingana kwaye iinkundla azikwazi ukutsho ngokuqinisekileyo ukuba loo mithetho
ayivumelekanga ukuba ngokomzekelo, ayinabulungisa okanye benza
ngokungafanelekanga
Northern Boipušo bja palamente
Sotho E ra gore palamente ke ya maemo ao a phagamego. Se e be e le peakanyo ya mmušo
yeo e bego e phethagatšwa ka Afrika Borwa pele ga ge Molaotheo wa 1993 o ba
tirišong gomme e sa le peakanyo yeo e dirišwago go la Brithani, yeo e bitšwago
“Westminster system". Peakanyong ye bjalo Palamente ga se fela popego ya maatla a
go dira melao ya godimodimo, yeo e kgonago go hloma melao efe goba efe yeo e e
nyakago, eupša ga go kgorotsheko yeo e ka lekago maatla a Melao ya palamente
goba melao ye e ngwadilwego kgahlanong le maemo a bjalo ka go swara batho ka go
swana le ka go lekana gomme dikgorotsheko di ka se bege gore melao ye bjalo ga e

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 sa na maatla ge, go fa mohlala, e tšea lehlakore goba e sa kwešišagale
isiNdebele Amandla wepalamende
Kutjho bona ipalamende iphakeme. Lokhu kwakuyisistimu karhulumende eyayisebenza
eSewula Afrika ngaphambi kokuthi uMthethosisekelo ka 1993 uthome ukusebenza
kanti le kusese yisistimu esebenza iBritheni (Britain), isabizwa nge “Westminster
system”. Ngaphasi kwalobu bujamo bale sistimu iPalamende iyayisiso isibethamthetho
esikhulu kwaphela, kodwana inamandla wokuphasisa imithetho, efisa ukuyiphasisa,
kodwana ayikho ikhotho engalinga amandla wemiThetho yepalamende nanyana
imithetho etlolwe phasi malungana namazinga anjengokungathathi ihlangothi kanye
nokulingana kanti godu amakhotho angekhe aqinisekisa imithetho enjalo ukobana
ayikafaneli njengesibonelo, ukuthi mhlambe ithatha ihlangothi nanyana ayizwakali kuhle
Setswana Go ikemela ga Palamente
go kaya gore Palamente e kwa godimo. Seno e ne e le thulaganyo ya puso e e neng e
dira mo Aforikaborwa pele ga Molaotheo wa 1993 o simolola go dira mme e sa ntse e
le thulaganyo e e dirang kwa Borithane, e e bidiwang "thulaganyo ya Westminster". Mo
thulaganyong eo, Palamente ga e nne fela setheo se segolwane sa theomolao, se se
nang le bokgoni jwa go fetisa melao epe fela jaaka e eletsa, fela ga go na
kgotlatshekelo epe e e ka lekanyetsang mooko wa Melao gongwe melao e e
fetisitsweng ya palamente kgatlhanong le seemo se tshwana le go se gobelele le
tekatekano mme dikgotlatshekelo di ka se goeletse gore melao eo ga e a tshwanela,
sekai ka gore e gobelela gongwe e sa amogelesege
Sesotho Bobusi ba paramente
bo bolela hore paramente e phahame. Ena e ne e le tsamaiso ya mmuso e neng e
sebetsa Afrika Borwa pele Molaotheo wa 1993 o kena tshebetsong, mme e ntse e le
tsamaiso e sebetsang Borithane, e bitswang “tsamaiso ya Westminster”. Tsamaisong e
jwalo Paramente ha se feela mokgatlo o phahameng wa matla a ho etsa melao, o
kgonang ho etsa melao efe kapa efe, eo o lakatsang ho e etsa, empa ha hona lekgotla
le ka etsang teko ya dintlha tsa Molao wa Paramente kapa melao e tlwaelehileng e
ngotsweng kgahlanong le ditekanyetso tse jwalo ka ho ba le toka le teka-tekano mme
makgotla a ka se phatlalatse melao e jwalo e sa nepahala ka mohlala, haeba e le
leeme kapa e sa utlwahale
Tshivenda Vhuḓivhusi tshoṱhe ha Phalamennde
zwi amba uri Phalamennde ndi amba yone khulwane. Hei ndi sisiṱeme ya muvhuso ye
ya vha i tshi shuma Afrika Tshipembe phanḓa ha musi Ndayotewa ya 1993 i itshi thoma
u shuma nahone i kha ḓi vha sisiṱeme i shumaho kha ḽa Britain, ine ya vhidzwa u pfi
“sisiṱeme ya Westminster”. Kha sisiṱeme iyo Phalamennde a si tshiimiswa tsha
vhusimamilayo tsha nṱhesa, tshi konaho u rwelaṱari. Mulayo muṅwe na muṅwe kana
ndaela dzo livhanaho na maga a u sa dzhia sia na ndinganyiso nahone khothe dzi nga si
kone u bula uri milayo iyo a si yone sa tsumbo, a i pfadzi nahone a i fari vhathu zwavhuḓi
Afrikaans Parlementêre soewereiniteit
beteken dat die Parlement die oppergesag is. Dit was die regeringstelsel in Suid-Afrika
voor die 1993-Grondwet in werking getree het en is nog steeds die stelsel in Brittanje,
die sogenaamde “Westminster-stelsel”. In so ’n stelsel is die parlement nie net die
hoogste wetgewende liggaam wat enige wette wat hy wil, kan verorden nie, maar geen
hof het die bevoegdheid om die inhoud van parlementêre wette of statute teen
standaarde van regverdigheid en gelykheid te toets nie. Die howe kan nie sulke wette
ongeldig verklaar as dit byvoorbeeld onbillik of onredelik is nie
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
isiZulu Idemokhrasi ebandakanya abantu
Umbono othi umphakathi unelungelo kanye nomsebenzi wokuzibandakanya ezindabeni
zomphakathi, kuxutshwa phakathi izingxoxo ezimayelana nokuphasiswa umthetho
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isiXhosa Intando yeninzi ethathisa inxaxheba
Ingcamango yokuba uluntu lunelungelo lokuthatha inxaxheba kwimicimbi yoluntu
jikelele, nequka iingxoxo ngokusetyenziswa komthetho nokuyila imigaqo nkqubo
karhulumente
Northern Temokrasi ya go kgathatema
Sotho Kgopolo ya gore setšhaba se na le tokelo le mošomo wa go kgathatema mererong ya
setšhaba, go akaretšwa ditherišanong tše mabapi le go hloma molao le go hlama
dipholisi tša mmušo
isiNdebele Idemokhrasi ebandakanya umphakathi
Lo mbono wokuthi umphakathi unelungelo kanye nomsebenzi wokuzibandakanya
eendabeni zombuso, kufakwa phakathi iinkulumiswano ezimalungana nokuphasiswa
komthetho kanye nokutlanywa kwemithethomgomo karhulumende
Setswana Temokerasi ya go nna le seabe
Mogopolo wa gore setšhaba se na le tshwanelo le maikarabelo a go nna le seabe mo
mererong ya setšhaba, go akarediwa dipuisano malebana le go fetisiwa ga molao le go
tlhamiwa ga dipholisi tsa puso
Sesotho Demokrasi ya bonkakarolo
Kgopolo ya hore setjhaba se na le tokelo le boikarabello ba ho nka karolo ditabeng tsa
setjhaba, ho kenyelletswa dipuisano tse mabapi le ho fetisa melao ya naha le ho
thehwa ha maano a mmuso
siSwati Intsandvo yelinyenti yekutimbandzakanya
Umcondvo lotsi sive sinelilungelo nemsebenti kutsi sitimbandzakanye etindzabeni
letitsintsa sona sive, lokufaka ekhatsi kucocisana lokumayena nekushaywa kwemtsetfo
Kanye nekusungula tinchubomgomo tahulumende
Tshivenda Demokirasi ya vhudzheneleli
Muhumbulo wa uri nnyi na nnyi u na pfanelo na mushumo wa u dzhenelela kha
mafhungo a nnyi na nnyi, hu tshi katelwa therisano nga ha u phasisa theo ya mulayo
na u sika mbekanyamaitele dza muvhuso
Xitsonga Xidimokrasi xa ku va na xiavo lexi kongomeke thwi
Muanakanyo wa leswo vanhu va xichava va va na mfanelo na ntirho wa ku va na xiavo
eka timhaka leti khumbaka vanhu, ku katsa mabulu hi pasisa milawu leyi yi pasisiwaka
hi palamende no va na xiavo eka ku endliwa ka tipholisi ta mfumo
Afrikaans deelnemende demokrasie
Die idee dat die publiek beide die reg en ’n plig het om aan publieke sake, insluitende
gesprekke oor die goedkeuring van wetgewing en die formulering van regeringsbeleid,
deel te neem
Plagiarism
the practice of taking someone else's work or ideas and passing them off as one's own. It is a form
of theft of another person’s intellectual property when no quotation marks are inserted to indicate
that the words are not your own and where no reference is provided to exactly where the information
has been obtained from
isiZulu Ukutshontshwa kolwazi/iphlajiyalizimu
Lesi yisenzo sokuthatha umsebenzi womunye umuntu bese awuthathe ukuthi
umsebenzi wakhe. Le yindlela yokutshontshwa komsebenzi oyimpahla yamaqhinga
engcondo uma ngabe zingekho izimpawu ezikhombisa ukuthi amagama akuwona
akho futhi nalapho kungekho uphawu oluchazayo ukudalula ukuthi ulwazi lucashunwe
kumuphi umthombo
isiXhosa Ukukopa
Ukuthatha umsebenzi okanye iingcinga zomnye umntu uzenze ezakho. Yindlela
yokuba iingcinga zomnye umntu xa ungasebenzisanga iimpawu zocaphulo (quotation
marks) ukubonisa ukuba amagama owasebenzisayo ayingawo awakho kuphinde

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Northern Go utswa mošomo goba dikgopolo
Sotho Setlwaedi sa go utswa mošomo goba dikgopolo tša motho yo mongwe gomme wa di
tšweletša bjalo ka tša gago. Ke sebopego sa bohodu sa thoto ya kgopolo ya motho yo
mongwe ka ntle le go lokela ditsebjana go laetša gore mantšu ga se a gago gape moo
tšhupetšo e sa fiwago mabapi le moo tshedimošo e hweditšwego gona
isiNdebele Iphlajiyarizimu/Ukweba ilwazi
Lesi kusisenzo sokuthatha umsebenzi nanyana imibono yomunye umuntu bese
uyithathe sengathi ngeyakho. Le kuyindlela yokweba ipahla ebuciko bamaqhinga
wengcondo lokha nakungekho amadzubhulo afakiweko ukuveza ukobana amagama
ayisiwo wakho kanti akukho lapho kuvezwa igama lomthombo elitjhoko ukuthi ilwazi
livela kuphi
Setswana Kutsokitso (plagiarism)
tiragatso ya go tsaya tiro gongwe dikakanyo tsa motho yo mongwe mme o di fetisa
jaaka e kete ke tsa gago. Ke mofuta wa bogodu jwa thoto ya botlhale jwa motho yo
mongwe fa go sa dirisiwa matshwao a nopolo go supa gore mafoko ao ga se a gago le
fa go se na tlhagiso ya gore tshedimosetso eo e tswa kae
Sesotho Ho sebedisa mosebetsi wa motho e mong
tlwaelo ya ho nka mosebetsi kapa dikgopolo tsa motho e mong ebe o di fetisa e le tsa
hao. Ke mofuta wa boshodu ba thepa ya kelello ya motho e mong ha ho sena
matshwao a ho qotsa le ho qotsolla ho bontsha hore mantswe hase a hao le moo ho
se nang referense e fanwang ya hore na tlhahisoleseding e tswa kae
siSwati Kusebentisa umcondvo walomunye
Kutsatsa umsebenti nome imicondvo yalomunye umuntfu uyente yakho. Yindlela
yekweba intfo yalomunye layicambile nangabe akukafakwa bokhulunyiwe kukhombisa
kutsi lamavi akasiwo akho kanye nekungasho kutsi kahlehle lolwatiso ulutsatse kuphi.
Tshivenda U tswela
Nyito ya u dzhia mushumo wa muṅwe muthu kana mihumbulo na u i pfukiselo kha
muṅwe. Ndi lushaka lwa vhuvhava ha ndaka ya muhumbulo ya muṅwe musi hu si na
zwiḓevhe zwo dzheniswaho u sumbedza uri maipfi ayo a si au na hune ha sa khou
ṋekedzwa ndaedzi ya uri mafhungo o wanala ngafhi
Xitsonga Ku kopela mitirho ya van’wana
tirhelo ra ku teka mintirho ya wun’wana munhu kumbe mianakanyo u yi yiva ku yi endla
ya wena. I muxaka wa vukhamba wa ku yiva mianakanyo ya ngqondo ya munhu
wun’wana loko u nga kombisi ntsavulo kumbe leswi swi tsavuriweke kun’wana ku
kombisa leswo i mianakanyo ya wun’wana munhu, kutani u yi endla o nge i ya wena
kambe ku nga ri ya wena, na swona loko tirheferense ti nga nyiketiwi hi leswo vutivi byi
kumeke kwihi
Afrikaans Plagiaat
’n Mens is skuldig aan plagiaat wanneer jy iemand anders se werk of idees gebruik en
dit as jou eie aanbied. Dit is ’n vorm van diefstal van ’n ander persoon se intellektuele
eiendom. Dit vind plaas as ’n mens geen aanhalingstekens gebruik om aan te dui dat
die woorde nie jou eie is nie en as jy geen verwysing verskaf na die bron waar jy die
inligting gekry het nie
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 Cabinet member
isiZulu Amakomiti asePhalamende
Amakomiti ahlukahlukene esiShayamthetho seZwe anikezwe uhlelo lokwenza
imithetho yephalamende futhi nokubhekisiswa uhlelo lwezosetshenziswa komthetho
omayelana nekhomiti lephalamende lelunga lonke leKhabinedi
isiXhosa Iikomiti zepotifoliyo
Iikomiti ezahlukeneyo zeNdibano kaZwelonke ezinekezwe umsebenzi wokuqhuba
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umsebenzi wowiso mthetho nokongamela ukuphunyezwa kwemithetho ejongene

nepotifoliyo yelungu ngalinye leKhabhinethi
Northern Dikomiti tša photfolio
Sotho Dikomiti tša go fapanafapana tša Seboka sa Maloko a Palamente tše di filwego
mošomo wa go hlama melao le go hlokomela tiragatšo ya melao ye e tswalanago le
photfolio ya leloko le lengwe le le lengwe la Kabinete
isiNdebele Amakomiti wePalamende
Kumakomiti ahlukahlukeneko wepalamende wesiBethamthetho seNarha anikelwe
umsebenzi wokwenza umthetho kanye nokutjhejisisa ukulandelwa komthetho
okumalungana nomnyango nginanyana ngimuphi welunga leKhabinede
Setswana Dikomiti tsa potefolio
dikomiti tse di farologaneng tsa Kokoanotheomolao tse di nang le tiro ya go tsamaisa
molao le go okamela tiragatso ya molao o o amanang le potefolio ya nngwe le nngwe
ya ditokololo tsa Kabinete
Sesotho Dikomiti tsa potefoliyo
Dikomiti tse fapaneng tsa Seboka sa Naha tse ikarabellang tshebetsong ya melao ya
naha le ho le ho laola ho kenngwa tshebetsong ha melao ya naha e amanang le
potefoliyo ya setho ka seng sa Kabinete
siSwati Emakomidi eSigungu saVelonkhe
emakomidi lahlukahlukene eLibandla laVelonkhe lanikwe umsebenti wekusebenta
umtsetfo nekwengamela kusebnta kwemtsetfo lophatselene nalelo komidi lalelo nalelo
lunga leKhabhinethi
Tshivenda Komiti dza phothifoḽio
Komiti dzo fhambanaho dza Buthano ḽa Lushaka dzi re na mishumo ya u shumana na
theo ya mulayo na vhulavhelesi ha theo ya mulayo i elanaho na phothifoḽio ya muraḓo
ya Khabinethe muṅwe na muṅwe
Xitsonga Tikomiti ta tiphotfoliyo
tikomiti to hambana ta Huvo ya tiko ePalamende ti na mintirho yo prosesa milawu no
angarhela hi tihlo ra vuxiyaxiyi na vukarhi mintirho ya vaholobye na tindzhawulo ku
vona loko ti tirha hi ku landza milawu mayelana na photfoliyo ya xirho xin’wana na
xin’wana xa Khabinete
Afrikaans Portefeuljekomitees
Die verskillende komitees van die Nasionale Vergadering wat daarmee belas is om
wetgewing deur te voer en oor die inwerkingstelling van wetgewing rakende die
portefeulje van elke kabinetslid toesig te hou
Presidential pardon
Where a person has been convicted of a crime and the President, exercising a Head of State power,
decides the excuse the crime, thus wiping the slate clean and allowing the convicted criminal to live
as if the conviction had never occurred
isiZulu Uhlelo lokuxolelwa uMongameli
Kulapho umuntu esebanjwe khona ngobugebengu kanti uMongameli, ngokusebenzisa
amandla akhe njengeNhloko yoMbuso wezwe, wuye onamandla okuthatha isinqumo
sokudedela isigebengu, ngalokho lokhu kusho ukusulwa kwerikhodi lesigebengu libe
msulwa futhi lapha kuvunyelwa isigebengu esiboshiwe sikwazi ukuphila njengomuntu
ongakaze aboshwe
isiXhosa Ukuxolelwa nguMongameli
Xa umntu egwetyelwe ulwaphulo mthetho, aze uMongameli, ngokusebenzisa amagunya
akhe njengeNtloko yeLizwe, akhethe ukumxolela, alisule ityala, avumele umntu
ogwetyiweyo aphile ngokungathi zange agwetywe
Northern Tebalelo ya Mopresidente
Sotho Moo motho a ahloletšwego bosenyi gomme Mopresidente, ka go diriša maatla a
Moetapele wa Naga, a tšeago sephetho sa go lebalela bosenyi, ka go realo a phumula

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 molato le go dumelela mosenyi yo a ahloletšwego go phela mo nkego kahlolo ga
sanke e direge
isiNdebele Ukulitjalelwa nguMengameli
Kulapho umuntu obanjelwe ubulelesi kanye noMengameli, njengeHloko yoMbuso
nakasebenzisa amandla wakhe, ngokuthatha isiqunto sokulibalela iselelesi, lokho
kutjho ukusula irikhodo lobulelesi lihlwengeke bese avumele iselelesi esibotjhiweko
kobana siphile sengathi lowo muntu akhange abotjhwe
Setswana Boitshwarelo jwa moporesidente
Moo motho a bonweng molato wa bosenyi mme Moporesidente, a dirisa dithata tsa
gagwe jaaka Tlhogo ya Puso, a swetsa go itshwarela molato, mme ka go rialo a phimola
molato mme a letla mosenyi yo o golegilweng go tshela jaaka e kete ga a ise a golegwe
Sesotho Tshwarelo ya mopresidente
Moo motho a fumanweng a le molato wa ho tlola molao mme Mopresidente, ka
tshebediso ya matla a ho ba Hloho ya Naha, a etsang qeto ya ho tshwarela tlolo ya
molao, kahoo a hlwekisa letlapa le ho dumella motlodi wa molao ya qoswang ho phela
jwalo ka ha eka qoso ha e so etshahale
siSwati Kutsetselelwa nguMengameli
Nangabe umuntfu ugwetjiwe ngenca yelicala bese kutsi Mengameli asebentise
emandla ekuba yuNhloko Yembuso, ancume kumtsetsela kulelo cala, alesule liphele
avumele lolobekwe licala kutsi aphile shengatsi akazange asabe nelicala
Tshivenda Pfarelo ya Phuresidennde
Hune muthu a vha o wanala mulandu wa vhugevhenga nahone Phuresidennde, vha
khou shumisa maanḓa a Ṱhoho ya Muvhuso, vha dzhia tsheo, zwenezwo vha phumula
zwoṱhe na u tendela tshigevhenga tsho wanalaho mulandu u tshiḽa u nga ri u vha na
mulandu a ho ngo vhuya ha itea
Xitsonga Ku rivaleriwa hi Presidente eka nandzu
Laha munhu a endleke nandzu wa vugevenga kasi Presidente, hi ku tirhisa matimba
ya yena ya Mfumo, a endlaka xiboho xa ku rivalela munhu eka vugevenga, leswi swi
vulaku leswo nandzu wa yena wa suriwa, no endla leswo xigevenga xi hanya vutomi
bya ntolovelo ku fana na loko a xi nga byi endlanga vugevenga byelebyo
Afrikaans presidensiële begenadiging
Die praktyk wat behels dat die president, in die uitoefening van sy of haar bevoegdheid
as staatshoof, ’n persoon wat aan ’n misdryf skuldig bevind is van die skuldigbevinding
vryskeld en hom of haar sodoende in staat stel om te leef asof die skuldigbevinding
nooit plaasgevind het nie
Principle of legality
The legal idea that requires all exercises of public power to be rational, non-arbitrary and authorized
by law that is clear, ascertainable and non-retrospective
isiZulu Lo umbono wezomthetho ofuna ukuthi wonke amandla ombuso asetshenziswe kahle,
ngaphandle kokuphamba nomthetho kanti lokhu kugunyazwa umthetho ocacile,
oqinisekile futhi ngendlela engabuyeli emuva
isiXhosa Inqobo yokusemthethweni
Ingamango yomthetho efuna ukuba amagunya okulawula uluntu asetyenziswe
ngendlela efanelekileyo, engenamkhethe negunyazisiweyo nevunyelwe ngumthetho
ocacileyo, onokungqinisiswa nongenakubuya mva
Northern Molawana wa go ahlola ka tlase ga molao wo o sa gatišwago
Sotho Kgopolo ya semolao ye e nyakago ditirišo ka moka tša maatla a setšhaba go ba tše di
kgodišago, tša mabaka a go kwagala, le go dumelelwa ke molao wo o kwešišegago, o
kago netefatšwa gape e se wo o kago diragatšwa pele ga nako
isiNdebele Umgomo wezokulandelwa umthetho ngokufaneleko
Lo kumbono osemthethweni ofuna ukobana amandla womphakathi abe ngafaneleko,
abe ngacatjangwe kuhle begodu banikelwe mthetho ocacileko, njengomthetho
oqinisekileko begodu ungasulwa
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Setswana Ntlhatheo ya bomolao

Mogopolo wa molao o o tlhokang gore tiragatso ya dithata tsa setšhaba e nne e e
dirwang ka tsela ya tlwaelo, e se e e dirwang ntle le thulaganyo mme e rebotswe ke molao
o o tlhamaletseng, o o ka tlhomamisiwang e bile go sa lebelelwe ditiragalo tse di fetileng
Sesotho Theho ya ho ba molaong
Kgopolo e molaong e hlokang ditshebediso tsohle tsa matla a setjhaba hore di
utlwahale, di hloke boikemelo mme di fuwe tumello ke molao o hlakileng, o tsitsitseng
le o sa shebeng dintho tsa morao
siSwati Umtsetfomgomo wemtsetfo
Ngumcondvo wetemtsetfo lotsi konkhe lokwentiwa ngumuntfu losebentela umbuso
kufanele kutsi akhombise ingcondvo lebhadlile, lokucatjangwe kahle futsi
lokugunyatwa ngumtsetfo locacako, locinisekisekako futsi longabuki timo letase
tenteka
Tshivenda Mulayo wa u tea ha mulayo
Muhumbulo wa mulayo une wa ṱoḓa u shumiswa hoṱhe ha maanḓa a nnyi na nnyi zwi
tshi vha na khumbulo, hu si na vhunṋe na u tendelwa lwa mulayo hu re khagala, u
swikelela na u sa vha na vhuḓisedzulusi
Xitsonga Nsinya (principle) wa swa ku amukeleka eka nawu
Muanakanyo wa nawu lowu wu lavaka leswo ku endliwa ka mitirho no tirhisiwa ka
matimba ya nawu swi va leswi endliwaka hi ngqondo, swi nga vi leswi nga homboloka
na swona swi va leswi swi pfumeleriweke hi nawu, swi va leswi nga tiyisekaka eka
nawo na leswi swi nga ta ka swi nga hundzuluxeki handle ka xivangelo xo khomeka
Afrikaans Legaliteitsbeginsel
Die regsbegrip ingevolge waarvan publieke mag ten alle tye rasioneel, nie-arbitrêr en
ooreenkomstig wette wat duidelik, bepaalbaar en nieterugwerkend is, uitgeoefen moet
word
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
isiZulu Ukumeleka ngokwesilinganiso
Lo wumgomo wezokhetho othi kufanele kube nobudlelwano obuphakathi kwephesenti
yamavoti avotele inhlangano ethile yezepolitiki kanye nephenti lezihlalo ezinikezwa
leyo nhlangano ephalamende
isiXhosa Umelo olushiyana ngokwamanani
Inqob yomthetho wonyulo ethi kufanele ukuba kubekho ulwalamano phakathi kwepesenti
yeevoti zeqela ngalinye kunye nepesenti yezihlalo ezabelwe elo qela kwindlu yowiso
mthetho
Northern Tekanyetšo ya kemedi
Sotho Molawana wa molao wa dikgetho wa gore go swanetše go be le papišo ya go lebanya
magareng ga phesente ya dibouto tše di hweditšwego ke mokgatlo o o itšego wa
dipolitiki le phesente ya ditulo tše di fiwago mokgatlo ka gare ga lekgotlapeamelao
isiNdebele Ukujameleka ngokwesilinganiso
Lo kumgomo womthetho wezamakhetho othi kufanele kube nokusebenzisana phakathi
kwamaphesende wamavowudu aphoselwa ukuvowudela ihlangano yezepolotiki
ethileko begodu nephesende yeenhlalo ezinikelwe kuleyo hlangano kusibethamthetho
Setswana Kemedi ya tekatekano
Ntlhatheo ya molao wa ditlhopho wa gore go tshwanetse ga nna le kamano ya
tlhamalalo magareng ga diperesente tsa diboutu tsa lekoko le le rileng la sepolotiki le
peresente ya manno a a abelwang lekoko leo mo kgotlatheomolao
Sesotho Boemedi bo lekanang
Theo ya molao wa dikgetho ya hore ho be le kamano e tobileng dipakeng tsa
peresente ya divoutu tse etswang bakeng sa mokga o ikgethang wa dipolotiki le

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 peresente ya ditulo tse abelwang mokga oo melaong ya naha
siSwati Kwabiwa kwetihlalo ngekwemavoti
Ngumtsetfomgomo wemtsetfo welukhetfo lotsi kufaanele kube nekuhambisana ngco
emkhatsini wemaphesenti emavoti elicembu letepolitiki lelitsitse Kanye nemaphesenti
etihlalo letinikwe lelicembu endlini yesishayamtsetfo
Tshivenda Vhuimeleli ha ndivhanele
Mulayo wa mulayo wa khetho wa uri hu tea u vha u elana ho livhaho vhukati ha
phesenthe ya vouthu dzo itwaho u itela ḽihoro ḽo khetheaho ḽa poḽitiki na phesenthe ya
zwidulo zwo avhelwaho kha ḽihoro kha vhusimamilayo
Xitsonga Ku yimeriwa ka mavandla ya tipolitiki epalamende hi ku landza nhlayo ya
vavhoti lava nga vhotela vandla relero (proportional representation)
Nsinya wa nawu wa nhlawulo wa leswo ku fanele ku va na tiphesente ta vavhoti lava
vhotelaka vandla ra politiki to karhi leswo vandla relero ra politiki ri kota ku kuma
switulu swo karhi leswi aviweke swa vandla relero hi ku landza nhlayo ya vavhoti lava
nga vhotela vandla relero
Afrikaans proporsionele verteenwoordiging
Die beginsel van verkiesingsreg dat daar ’n regstreekse verband moet wees tussen die
persentasie stemme wat ’n spesifieke politieke party ontvang en die persentasie setels
wat aan daardie party in die wetgewende gesag toegeken word
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
isiZulu UPhiko lwezokuShushisa
Leli yiziko elithatha izinqumo ezimayelana nokuthi ngubani ofanelwe ukushushiswa
futhi ngubani ogafanelwe ukushushiswa ngokusolelwa ngecala futhi nalowo muntu
obandakanyeka kulokho kushushiswa
isiXhosa Igunya lokutshushisa
ISebe elithatha izigqibo zokuba kutshutshiswe bani okanye kungatshutshiswa bani
ngamatyala athile kwaye lithatha uxaduva ngaloo msebenzi
Northern Bolaodi bja Bosekiši bja Setšhaba
Sotho Mokgatlo wo o tšeago diphetho mabapi le motho yo a swanetšego go ahlolwa goba go
se ahlolwe ka lebaka la tatofatšo ya go dira bosenyi gomme o na le boikarabelo bja
dikahlolo tše bjalo
isiNdebele Iziko elinegunya lokutjhutjhisa
Leli kuliziko elithatha iinqunto malungana nokuthi ngubani omelet atjhutjhiswe nokuthi
ngubani ongakafaneli ukutjhutjhiswa ngekomitjhini yezwangobatjho yomlandu begodu
nokuthinteka ekutjhutjhiseni okunjalo
Setswana Bothathi jwa botšhotšhisi
Bothati jo bo tsayang ditshwetso malebana le gore go sekisiwa mang le gore ga go
sekisiwe mang ka ntlha ya tiragatso ya tlolomolao e e rileng le le le nang le
maikarabelo a tshekiso eo
Sesotho Matla a kahlolo
Mokgatlo o etsang diqeto mabapi le hore na ho ahlolwe mang ho se ke hwa ahlolwa
mang bakeng sa ketso ya tlolo ya molao e belaellwang mme o ikarabella bakeng sa
dikahlolo tse jwalo
siSwati Umtimba wekushushisa
Ngumtimba lotsatsa tincumo letimayelana nekutsi ngubani lekumele kutsi ashushiswe
nekutsi ngubani lokungakafeli kutsi ashushiswe ngenca yelicala labekwa lona futsi
nguwo lobukene naloko kushushiswa
Tshivenda Maanḓa a vhutshutshisi
Tshiimiswa tshi dzhiaho tsheo nga ha uri hu tshutshiswa nnyi na uri ndi nnyi a sa
tshutshiswi kha u ita mulandu une wa khou hwelelwa nahone tsha vha na

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vhuḓifhinduleli ha vhutshutshisi uvho

Xitsonga Huvo ya vuchuchisi
Nhlangano lowu wu endlaka swiboho hi leswo xana ku fanele ku chuchisiwa mani na
leswo i mani loyi a nga faneleki ku chuchusiwa hi ku endla xidyoho xo karhi kumbe ku
soriwa ku endla nandzu wo karhi na swona nhlangano lowu wu langutana na swa ku
chuchisa
Afrikaans Vervolgingsgesag
Die liggaam wat besluite neem oor wie vir die pleeg van ’n beweerde oortreding
vervolg moet word en nie vervolg moet word nie en wat vir sodanige vervolging
verantwoordelik is
Public service
The collective name for the persons who work for the national and provincial government departments
isiZulu Uphiko lwezabasebenzi bombuso
Leli yigama elilodwa elichaza abantu abasebenza kwiminyango kahulumeni wezwe
nesifunda
isiXhosa Inkonzo yoluntu
Igama elisetyenziswa ukubiza iqela labantu abasebenzela amaSebe karhulumente
wesizwe okanye wamaphondo
Northern Tirelo ya mmušo
Sotho Leinakgoboko la batho bao ba šomelago dikgoro tša mmušo wa bosetšhaba le profense
isiNdebele Iziko lezabaSebenzi boMbuso
Leli kuligama elilodwa elitjho labo bantu abasebenza eminyangweni karhulumende
wenarha newesifunda
Setswana Tirelosetšhaba
Leinagoboka la batho ba ba direlang mafapha a puso a bosetšhaba le diporofense
Sesotho Tshebeletso ya setjhaba
Lebitso le kopaneng le fuwang batho ba sebetsang mafapheng a mmuso a naha le
porofense
siSwati Umsebenti wahulumende
Ligama lelishwambakanya yonkhe imisebenti yematiko ahulumende wavelonkhe kanye
nesifundza nabo bonkhe labasebenta kuwo
Tshivenda Tshumelo ya nnyi na nnyi
Dzinaguṱe ḽa avho vhathu vha shumaho kha mihasho ya muvhuso ya lushaka na ya
vundu
Xitsonga Vutirhela-mfumo
Rito leri angarhelaka ra vanhu lava va tirhelaka tindzhawulo ta mfumo wa tiko kumbe
tindzhawulo ta tiprovhinsi (swifundzhankulu)
Afrikaans Staatsdiens
Die kollektiewe naam vir diegene wat vir die nasionale en provinsiale
staatsdepartemente werk
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
isiZulu Ukumeleka ngokwesilinganiso esimsulwa sohlelo lwezokhetho
Lolu wuhlelo lwezokhetho lapho abavoti bavotela izinhlangano zepolitiki kanti hayi
imbangi yokhetho kanti lapho zonke izinhlangano zinikezwa izihlalo ephalamende
ngokwesilinganiso esiqondenevoti avotela leyo nhlangano okhethweni
isiXhosa Inkqubo yonyulo yomelo olushiyana ngokwamanani
Inkqubo yonyulo apho abantu abavotayo bevotela amaqela epolitiki hayi abantu
abangabagqatswa kwaye apho iqela nganye lifumana izihlalo kwindlu yowiso mthetho
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Northern Sestemo ya go bouta ya tekanyetšo ya kemedi
Sotho Sestemo ya go bouta moo babouti ba kgethago mekgatlo ya dipolitiki gomme e se
bonkgetheng moo mokgatlo o mongwe le o mongwe o fiwago ditulo ka gare ga
lekgotlapeamelao go ya le ka tekanyetšo ya phesente ya dibouto tše mokgatlo o di
hweditšego nakong ya dikgetho
isiNdebele Ukujameleka ngokwesilinganiso esimsulwa sesistimu yezamakhetho
Isistimu yezamakhetho lapho abavowudu bavowudela iinhlangano zepolotiki kanti hayi
abonkhetheni ngabanye begodu lapho enye nenye ihlangano inikelwa iinhlalo
epalamende ngokwesilinganiso esinqophileko nephesende lamavowudu aphoselelwa
leyo hlangano emakhethweni
Setswana Thulaganyo ya ditlhopho ya kemedi ya tekatekano fela
Thulaganyo ya ditlhopho e mo go yona batlhophi ba tlhophang makoko a sepolotiki
mme e seng baemedi ka bongwe le e mo go yona lekoko le abelwang manno mo
kgotlatheomolao go lekalekana le diperesente tsa diboutu tsa lekoko mo ditlhophong
Sesotho Tsamaiso ya dikgetho ya boemedi bo lekanang bo hlwekileng
Tsamaiso ya dikgetho eo ho yona bakgethi ba kgethang mekga ya dipolotiki eseng bo-
nkgetheng ba ikemetseng mme eo ho yona mokga wa dipolotiki o abelwang ditulo
melaong ya naha ka ho lekana ho tobileng le peresente ya divoutu tse entsweng
bakeng sa mokga dikgethong
siSwati Luhlelo lwelukhetfo lokwabiwa kwetihlalo ngekwemavoti nje kuphela
Luhlelo lwelukhetfo lapho bavoti bavotela emacembu etepolitiki hhayi
bangenelilukhetfonekutsi lelo nalelo cembu linikwa tihlalo endlini yesishayamtsetfo
ngekuya ngco ngemaphesenti emavoti lelo cembu leliwatfolile elukhetfweni
Tshivenda Sisiṱeme ya vhukhethi ya vhuimeleli ha ndivhanele
Sisiṱeme ya vhukhethi ine khayo vhakhethi vha voutha mahoro a poḽitiki na
vhonkhetheni vho ḓiimisaho nga vhoṱhe na ine khayo mahoro a avhelwa zwidulo kha
vhusimamilayo hu na ndivhanele yo livhanaho na phesenthe ya vouthu dzo itelwaho
ḽihoro ḽi re kha khetho
Xitsonga Pure proportional representation electoral system
Fambiselo ra swa nhlawulo laha vavhoti va vhotelaka mavandla ya tipolitiki kambe va
nga vhoteliku vayimela-ku-langwa (candidates), kasi laha vandla na vandla ra tipolitiki
ri nyiketiwaka switulu epalamende hi ku landza tiphesente va vavhoti lava va nga
vhotela vandla relero ra tipolitiki eka nhlawulo
Afrikaans kiesstelsel vir suiwer proporsionele verteenwoordiging
Die kiesstelsel waar kiesers vir politieke partye in plaas van individuele kandidate stem
en waar setels in die wetgewende gesag aan elke party toegeken word in direkte
verhouding tot die persentasie stemme wat die party tydens die verkiesing ontvang het
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
isiZulu Uhlelo lwefederali olunabile
Lolu wuhlelo lapho amandla okuphasisa nokufezekisa umthetho asatshalaliswa phakathi
kukahulumeni wezwe kanye nohulumeni bezifundazwe, kodwa lawa mandla ohulumeni
ancunyiwe
isiXhosa Inkqubo engathanga ncam yombuso wembumba
Inkqubo apho amandla okuvelisa nokuqinisekisa imithetho ahlulwe phakathi
korhulumente kazwelonke norhulumente wamaphondo kodwa amandla karhulumente
wamaphondo enchitshisiwe
Northern Sestemo ya thulaganyo ya mebušo
Sotho Sestemo moo maatla a go dira le go diragatša molao a abaganywago magareng ga
mmušo wa bosetšhaba le mebušo ya profense, eupša moo maatla a mebušo ya

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profense a lekaneditšwego
isiNdebele Isistimu enabe ngokwefederali
Le kuyisistimu lapho amandla wokuphasisa umthetho nokusetjenziswa komthetho
adluliselwa phakathi kwaborhulumende benarha neleemfunda, kodwana lawo mandla
wesifunda abekelwe imikhawulo
Setswana Thulaganyo e e batlileng e nna ya bofeterale
Thulaganyo e mo go yona dithata tsa go fetisa le go diragatsa molao di phasaladiwang
magareng ga puso ya bosetšhaba le dipuso tsa diporofense fela e mo go yona dithata
tsa dipuso tsa diporofense di lekanyeditsweng
Sesotho Tsamaiso ya mokgwa wa ho arola matla
Tsamaiso eo ho yona matla a ho fetisa le ho kenya tshebetsong melao ya naha a
ajwang dipakeng tsa mmuso wa naha le mebuso ya porofense empa eo ho yona matla
a mebuso ya porofense e fokolang
siSwati Sandlela yenhlanganisela
Luhlelo lwembuso lapho emandla ekuphasisa nekucala kusebenta kwemtsetfo
asatjalaliselwe emkhatsini wahulumende wavelonkhe kanye nakubohulumende
betifundza kodvwa emandla abohulumende betifundza anemkhawulo
Tshivenda Sisiṱeme ya mafanedza ya federala
Sisiṱeme ine khayo maanḓa a u phasisa na u shumisa theo ya mulayo a phaḓaladzwa
vhukati ha muvhuso wa vhukati na mivhuso ya lushaka fhedzi ine khayo maanḓa a
mivhuso ya vhukati a vha o fhimiwa
Xitsonga Quasi-federal system
Sisteme laha matimba ya ku pasisa milawu no tirhisiwa ka milawu swi avanyisiwaka
exikarhi ka mfumo wa tiko na mimfumo ya tiprovhinsi (ya swifundzhankulu), kambe
laha mimfumo ya tiprovhinsi yi nga na matimba lama nga vekeriwa mindzilakano
Afrikaans kwasifederale stelsel
’n Stelsel waar die mag om wetgewing goed te keur en in werking te stel tussen die
nasionale regering en provinsiale regerings verdeel is, maar die gesag van provinsiale
regerings beperk is
Quasi-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 spheres of government
isiZulu Imodeli yefederalizimu ehlangene
Kulapho ezinye izinhlelo zodaba zinikezwa ngokukhethekile isigaba esisodwa noma
umkhakha kahulumeni, kodwa amandla amaningi ahambisana noma ahlukaniselwana
kanti lapho izindaba ezimayelana nokuthi ngabe iyiphi migomo kanye nemithetho
engakhiwa engeke yahlukaniswa phakathi kwamazinga ahlukahlukene noma
imikhakha yohulumeni
isiXhosa Inkqubo engathanga ncam yentsebenziswano yembumba
Apho ezinye izinto zabelwa kwisebe elinye qha likarhulumente, kodwa amandla
amanintsi abelelwa
Northern Mmotlolo wa kgaoganyo ya maatla go mebušo
Sotho Moo merero e fiwago fela go boemo bo tee goba lekala la mmušo, eupša maatla a
mantši a hlakantšhitšwe goba go abaganywa gape moo merero mabapi le dipholisi
goba melao ye e kago dirwa bjalo ga e a abaganywa ka nepagalo gare ga maemo
goba makala a go fapanafapana a mmušo
isiNdebele Imodeli yefederalizimu ehlangeneko
Lapho ezinye zeendaba ezikhethekileko zinikelwa isigaba sinye sikarhulumende,
kodwana amandla amanengi akhambisana nanyana ayahlukaniselwana kanti lapho
izinto ezimalungana nokuthi ngiyiphi imithethomgomo nemithetho ngalokho
ahlukaniswe phakathi kwamazinga ahlukahlukeneko nanyana imikhakaha

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Setswana Sekao se se batlileng se akaretsa bofeterale
Moo merero mengwe e abelwang fela legato le le lengwe la puso, fela bontsi jwa
dithata bo aroganwa le moo morero o go tshwanetseng ga dirwa dipholisi le melao tsa
ona o sa aroganngweng ka tsepamo mo magatong a a farologaneng a puso
Sesotho Mokgwa o kopanetsweng wa karolo ya matla
Moo ditaba tse ding di ajwang ka ho kgetholla ba bang boemong bo le bong kapa
sebakeng se le seng sa mmuso, empa matla a mangata a dumellana kapa a
arolelanwa mme moo ditaba mabapi le hore na ke maano le melao efe e ka etswang a
sa arolweng ka tiyo dipakeng tsa maemo a fapaneng kapa dibaka tsa mmuso
siSwati Indlela letishaya sakuhlanganiswa kwenhlanganisela
Lapho letinye tindzaba tinikwa kuphela umkhakha munye wahulumende, kodvwa
emandla lamanyenti kwabelanwa ngawo nekutsi leto tindzaba tinchubomgomo
nemitsetfo lengashaywa macondzana nato ayehlukaniswa ngalokusimbelambela
emkhatsini wemikhakha yahulumende
Tshivenda Tshiedziswa tsha ṱhanganelano tsha mafanedza tsha vhufederala
Hune dziṅwe thero dzo avhelwa lwo khetheaho kha ḽevele nthihi kana vhuimo ha
muvhuso, fhedzi vhunzhi ha maanḓa a vha kathihi kana u kovhekanywa na hune thero
maelana na mbekanyamaitele na milayo dzi nga itwa zwenezwo dzi songo
khethekanywa vhukati ha ḽevele dzo fhambanaho kana vhuimo ha muvhuso
Xitsonga Quasi-integrated model of federalism
Laha mitirho yo karhi yi averiwaka ntsena eka Xiyenge xo karhi xa mfumo, kambe
matimba manyingi ya khomiwaka kumbe ku tirhisiwa hi ku ringana exikarhi ka mfumo
wa tiko na wa swifundzhankulu mayelana na tipholisi na milawu swi nga endliwaka
kambe leswi swi endliwa hi ku avelana hi ndlela yo ka yi nga tiyangi ngopfu exikarhi ka
tilevhele to hambana kumbe swiyenge swo hambana swa mfumo
Afrikaans kwasigeïntegreerde model van federalisme
’n Model ingevolge waarvan sekere onderwerpe uitsluitlik aan een regeringsvlak of -
sfeer toegedeel word, maar die meeste bevoegdhede gelyklopend is of gedeel word en
die onderwerpe ten opsigte waarvan beleid en wette geskep kan word gevolglik nie
streng tussen die verskillende regeringsvlakke of -sfere verdeel is nie
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
isiZulu Ukufaneleka
Lesi yisivivinyo sezomthetho esingahlosile ukucwaninga uhlakanipha noma
ukufaneleka komthetho olethwayo, kodwa kunokubuza, kokuqala, ukuthi mhlawumbe
lokhu kulethwa komthetho kuhlose ukufinyelela inhloso kahulumeni osemthethweni
futhi, okwesibili, ukuthi mhlawumbe kukhona ubudlelwano obufanele obuphakathi
kokwenziwa komthetho kanye nenhloso elindelwe ukufinyelelwa
isiXhosa Ukucwenga kwengqiqo
Uvavanyo lomthetho olungenajongo yokuqonda ubulumko okanye ingqiqo yomthetho
ekungavisiswana ngawo, koko lubuza, okokuqala, ukuba ingaba loo mthetho ujonge
ukuphumeza injongo karhulumente na, okwesibini, ingaba kukho unxulumano kusini
na phakathi komthetho nenjongo ekufuneka uyiphumezile (umthetho lowo)
Northern Kwagalo ka mabaka
Sotho Teko ya semolao yeo e sa lebišwago nyakišišong ya bohlale goba kgodišo ya tatolo ya
kabo ya molao, eupša go botšišeng, sa pele, ge e ba kabo ya molao e ikemešeditše
go fihlelela morero wa kgonthe wa mmušo le, sa bobedi, ge e ba go na le tswalano ye
e kwagalago gare ga kabo ya molao le morero wo e nyakago go o fihlelela
isiNdebele Ukufaneleka komthetho
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Leli kulihlelo elihlolako elingakanqophi ekubuzeni ngelwazi elihlakaniphileko nanyana

ukufaneleka komthetho, kodwana kunalokho ukubuza, kokuthoma, ukuthi mhlambe
umthetho unqophe ukufinyelela ihloso karhulumende osemthethweni kanti, kwesibili,
ukuthi mhlambe ngabe kukhona ubudlelwano obufaneleko obuphakathi komthetho
kanye nomnqopho ofuneka bona uphunyelelwe
Setswana Go nna le tlhaloganyo
Teko ya semolao e maikaelelo a yona e seng go batlisisa botlhale gongwe go nna le
tlhaloganyo ga tlamelo e e belaelwang ya molao, fela e botsa, sa ntlha, gore a tlamelo
ya molao e ikaeletse go fitlhelela maitlhomo a nnete a puso, le, sa bobedi, gore a go
na le kamano e e siameng magareng ga tlamelo ya molao le maitlhomo a a
tshwanetseng go fitlhelelwa ka yona
Sesotho Ho utlwahala
Teko ya molao e sa rerelwang ho botsa ka bohlale le ho utlwahala ha tokisetso ya
molao e phephetswang, empa ho ena le hoo e botsa, sa pele, hore na tokisetso ya
molao e rerile ho fihlella sepheo se nepahetseng sa mmuso mme, sa bobedi, hore na
ho na le kamano e utlwahalang dipakeng tsa tokisetso e molaong le sepheo seo ho
batlwang hore se fihlellwe
siSwati Inhlosomtsetfo
Sivivinyo semtsetfo lokungakahloswa kutsi kutfolwe kuhlakanipha nome bungcondvo
baloko lokushiwo ngulowo mtsetfo, kodvwa sibuta kutsi, kwekucala, ngabe
lolokushiwo ngulomtsetfo kuhlose kufezekisa inhloso yahulumende lefanele yini
nekutsi, kwesibili ngabe bukhona yini budlelwane bengcondvo lebhadlile emkhatsini
waloko lokushiwo ngumtsetfo kanye naleyo nenhloso lefezekiswa ngulowo mtsetfo
Tshivenda U shumisa khumbulo
Ndingo ya mulayo i songo sedza kha u ṱoḓisisa nga ngomu kha vhuṱali kana u pfadza
ha mbetshelwa dza mulayo dzi vhudziswaho, fhedzi ha vhudzisa, tsha u thoma, uri
mbetshelwa dza mulayo dzi a swikelela na ndivho ya muvhuso ire mulayoni na, tsha
vhuvhili, hu na vhushaka ha khumbulo vhukati ha mbetshelwa dza mulayo na ndivho
ine ya khou lwelwa u swikelelelwa ngazwo
Xitsonga Rationality
Test ya nawu leyi nga na xikongomelo na ku lavisisa hi vutlhari na ku faneleka eka
nawu, kambe ku vutisa leswo, xo sungula nawu wu na xikongomelo xa ku fikelela
xikongomelo xa mfumo lexi faneleke, xa vumbirhi, ku na vuxaka bya xivangelo xo
twala exikarhi ka leswi vekiweke hi nawu na xikongomelo lexi xi faneleke ku fikeleriwa
Afrikaans Rasionaliteit
’n Regstoets wat nie daarop gemik is om die wysheid of redelikheid van ’n betwiste
regsbepaling te bepaal nie, maar eerder vra, in die eerste plek, of die regsbepaling
daarop ingestel is om ’n regmatige regeringsdoelwit te bereik en, in die tweede plek,
of daar ’n rasionele verband is tussen die regsbepaling en die doel wat dit
veronderstel is om te bereik
Reasonable and justifiable
Reasonable means that whatever decision was made is appropriate given the particular
circumstances, and most would regard it as so. Justified means that whatever decision was made is
done for a good reason, in the interest of fairness
isiZulu Okufanele nokulungile
Okufanele kuchaza ukuthi noma yisiphi isinqumo esathathwa sifanele uma kubhekwa
izimo ezithile, futhi iningi lizosithatha njengesifanele. Okulungile kuchaza sonke
isinqumo esithethwe ngenhloso yesizathu esihle, ngenhloso yokuthola okungathathi
ingxenye
isiXhosa Ilungile kwaye inesizathu
Elungileyo ifanelekile, nokuba sesiphi isigqibo esithathiweyo sifanelekile kwimeko
ethile kwaye abantu abaninzi bayavumelana naso. Enesizathu ithetha ukuba nokuba

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Northern Go kwagala le go lokafatšwa
Sotho Go kwagala go ra gore sephetho sefe goba sefe se se tšerwego ke sa maleba go ya ka
maemo a a itšego, gomme bontši bo ka e tšea bjalo. Go lokafatšwa go ra gore sephetho
sefe goba sefe se se tšerwego se dirilwe ka lebaka le le botse, ka kgahlego ya toko
isiNdebele Okufaneleko nokuzwakalako
Okuzwakalako kutjho ukuthi nanyana ngisiphi isiqunto esathathwako sifanele
nangabe kwenzeka ngaphasi kobujamo obuthileko, kanti abanengi bazasithatha
njengombana sinjalo. Okuzwakalako kutjho ukuthi nginanyana ngisiphi isiqunto
esenziwako senziwa ngesizathu esinehloso ehle, ngekareko yokungathathi ihlangothi
Setswana Maleba le ka lebaka
Maleba e kaya gore tshwetso e e tserweng e maleba ka ntlha ya mabaka a a rileng,
mme bontsi bo tlaa e tsaya jalo. Ka lebaka go kaya gore tshwetso e e tserweng e
dirilwe ka lebaka le le siameng, mo dikgatlhegelong tsa go se tseye letlhakore
Sesotho Ho utlwahala le ho buelelleha
Ho utlwahala ho bolela hore qeto efe kapa efe e entsweng e nepahetse maemong a
itseng, mme ba bangata ba nka ho le jwalo. Ho buelelleha ho bolela hore qeto efe
kapa efe e entsweng e entswe ka lebaka le utlwahalang, thahasellong ya toka
siSwati Kuvunyelwe ngumtsetfo futsi kufanelekile
Kufanelekile kusho kutsi nome ngabe ngusiphi sincumo lesitsatsiwe sifanele
nakubukwa leto timo letitsite, nekutsi labanengi bangakutsatsa kanjalo. Kuvunyelwa
ngumtsetfo kusho kutsi nome ngabe ngusiphi sincumo lesentiwe sentiwe ngesizatfu
lesifanele, ngekungatsatsi luhlangotsi
Tshivenda U pfadza na u i imelelea
U pfadza zwi amba tsheo iṅwe na iṅwe yo itwaho yo vha yo tea musi ho sedzwa
nyimele yo imaho ngauri, nahone ndi vhanzhi vhane vha ḓo i dzhia yo tou ralo. U
imelelea zwi amba uri tsheo yo itwaho yo itwa hu na kuhumbulele kwavhuḓi, ho
sedzwa madzangalelo a u sa kwao
Xitsonga Ku va na xivangelo lexi twakalaka na lexi lulameke
Maendelo ya xivangelo lexi twakalaka ya leswo hambi xiboho xihi na xihi xi endliwe hi
ku faneleka hi ku landza swiyimo swo karhi, na swona vanhu vanyingi va nga swi teka
tano. Nhlamuselo ya leswo hambi xiboho xihi na xihi lexi nga tekiwa xi endliwe hi ku
va na xiavangelo lexinene, na swona hi ku vonelela leswinene
Afrikaans redelik en geregverdig
“Redelik” beteken dat ’n besluit wat geneem word, gepas is in die betrokke
omstandighede en deur die meeste mense as sodanig beskou sal word.
“Geregverdig” beteken dat ’n besluit om ’n goeie rede en in die belang van
regverdigheid geneem word
Representative democracy
The notion that the voters are represented by elected representatives serving in legislatures and the
executive
isiZulu Idemokhrasi yohlelo lokumeleka
Lo wumbono othi abavoti bamelwa abameli abakhethwe abameli abakhethiwe
abasebenza kwizishayamthetho kanye nesigungu
isiXhosa Idemokhrasi yomelo
Ingcinga yokuba abavoti bamelwa ngabameli abanyuliweyo, abasebenza kuwiso
mthetho nakwibhunga elilawulayo
Northern Temokrasi ya baemedi
Sotho Kgopolo ya gore bakgethi ba emela ke baemedi ba ba kgethilwego bao ba šomago go
makgotlapeamelao le bolaodi
isiNdebele Idemokhrasi ejamelelekileko
Lokhu kutjho bona abavowudu bajanyelwe bajameli abakhethiweko abasebenza

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kwiimbethamthetho nesigungu
Setswana Temokerasi ya kemedi
Ntlha ya gore batlhophi ba emelwa ke baemedi ba ba ba tlhophileng ba ba dirang mo
dikgotlatheomolao le khuduthamaga
Sesotho Demokrasi ya boemedi
Kgopolo ya hore bakgethi ba emetswe ke baemedi ba sebetsang mokgatlong wa
melao ya naha le bolaoding
siSwati Intsandvo yelinyenti lemelelwe
Ngumcondvo lotsi bavoti bamelelwe ngulabo lababakhetsile kutsi basebente
kutishayamtsetfo nasesigungwini lesiphetse
Tshivenda Demokirasi ya vhuimeleli
Muhumbulo wa uri vhakhethi vha imelelwa nga vhaimeleli vho khethiwaho vha
shumaho kha vhusimamilayo na kha vhulanguli
Xitsonga Xidimokrasi laha vanhu va yimeriweke hi vahlawuriwa
Muanakanyo wa leswo vavhoti va yimeriwe hi vahlawuriwa lava va va yimeleke
epalamende na le ka mfumo
Afrikaans verteenwoordigende demokrasie
Die idee dat die kiesers deur verkose verteenwoordigers wat in die wetgewende gesag
en die uitvoerende gesag dien, verteenwoordig word
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
isiZulu Ukubusa komthetho/ukulawula komthetho
Lo wumgomo ojikelezayo wezomthethosisekelo oqiniswa yizinkantolo futhi osondelene
kakhulu nomgomo wokulandelwa komthetho kanye phecelezi i-rechtsstaat, kanti
kancane, lo mgomo ufuna isishayamthetho kanye nesigungu semikhakha yonke
kuphela, ukusebenzisa amandla kanye nokwenza imisebenzi uma ngabe zinikezwe
igunya lokwenza lokho okufunwa wumthetho kanye nangendlela efanele
isiXhosa Ulawulo lomthetho
Inqobo yoMgago Siseko ephilayo enokunyanzelwa ziinkundla zamatyala
ngokusondelene nenqobo yomthetho, ekwaziwa ngegama lerechtsstaat, apho kuthiwa
kuwo onke amaSebe karhulumente, uwiso mthetho nolawulo mazisebenzise amandla
avunyelwe ngokomthetho nangendlela efanelekileyo
Northern Pušo ya molao
Sotho Molawana wo o fetogago wa molaotheo wo o tiišwago ke dikgorotsheko gomme o
amantšwa kudu le molawana wa semolao le rechtsstaat yeo, bonnyaneng, e nyakago
lekgotlapeamelao le bolaodi makaleng ka moka fela go diriša maatla le go dira
mešomo ge e dumeletšwe go dira bjalo ke molao gape fela ka mokgwa wa bohlale
isiNdebele Ukubusa/Ukulawula komthetho
Lo kumgomo wezomthethosisekelo osetjenziswa makhotho begodu ohlobene khulu
nemigomo yokulandela umthetho kanye ne rechtsstaat, kancani, ifuna isibethamthetho
kanye nesigungu komunye nomunye umkhakha kwaphela ukusebenzisa amandla
nokwenza imisebenzi lokha nangabe inikelwe igunya lokwenza lokho ngokomthetho
kanti kwaphela ngendlela ezwakalako
Setswana Dithata tsa molao
Ntlhatheo ya molaotheo e e fetogang e e diragadiwang ke dikgotlatshekelo mme e
amana thata le ntlhatheo ya bosemolao le rechtsstaat e, bobotlana, e tlhokang
kokoanotheomolao le khuduthamaga mo magatong otlhe go dirisa dithata le go dira
ditiro fela fa di laoletswe go dira jalo ke molao mme le teng fela ka mokgwa o o nang le
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 Sesotho Puso ya molao
Theo e fetohang ya molaotheo e qobellwang ke makgotla mme e amana haholo le
theo ya ho ba molaong le rechtsstaat eo, bonyane, e hlokang melao ya naha le bolaodi
dibakeng tsohle ho sebedisa matla feea le ho etsa mesebetsi haeba e dumelletswe ho
etsa jwalo ke molao mme feela ka tsela e utlwahalang
siSwati Kusebenta kwemtsetfo
Yinchubomgomo yetemtsetfosisekelo lecinisekiswa tinkantolo futsi isondzelene
kakhulu nenchubomgomo yetemtsetfo ne-rechtsstaat letsi, lokungenani ngebuncane
bekugcina, lodzinga kutsi sishayamtsetfo nesigungu lesiphetse kunome ngabe
ngumuphi umkhakha kufanele usebentise kuphela emandla futsi wente nemisebenti
nange sigunyatwe ngumtsetfo kutsi sente njalo kuphela ngendlela lebhadlile
Tshivenda Kuvhusele kwa mulayo
Mulayo wa u bvelelaho wa ndayotewa une wa shumisea nga khothe na u elana
tshoṱhe na mulayo wa u vha mulayoni na rechtsstaat une, kha gumoṱuku, wa ṱoḓa
vhusimamilayo na vhulanguli kha vhuimo vhuṅwe na vhuṅwe vhu tshi shumisa
maanḓa na u ita mishumo arali vho ṋewa maanḓa nga mulayo a u ita izwo na u zwi ita
nga nḓila ire na khumbulo
Xitsonga Ku fuma ka nawu thwi
Nsinya lowu wu hundzukaku wa vumbiwa lowu wu tirhisiwaka hi tikhoto (tihuvo) na
swona lowu wu fambelanaka na nsinya wa vunawu na rechtsstaat, lowu eka xiyenge xo
sungula, wu lavaku leswaku palamende na valawuri va mfumo eka xiyenge xin’wana
na xin’wana ku tirhisa matimba no endla mitirho leyi pfumeleriweke hi nawu na ku
landza matirhelo lama nga na ngqondo yo twala
Afrikaans oppergesag van die reg/regsoewereiniteit
’n Veranderende konstitusionele beginsel wat deur die howe afdwingbaar is en wat nou
verwant is aan die legaliteitsbeginsel en die Rechtsstaat. Hierdie beginsel, op sy
allerminste, verplig die wetgewende gesag en die uitvoerende gesag in elke sfeer om
slegs gesag uit te oefen en funksies te verrig as hulle deur die wet daartoe gemagtig
word, en dan slegs op ’n rasionele wyse
Separation of powers
The principle that there must be some separation of function and, in some cases, personnel of the
three branches of government
isiZulu Ukwehlukaniswa kwamandla
Lo wumgomo othi kufanele kube nokwehlukaniswa komsebenzi kanti, kwezinye izimo,
abasebenzi bamagatsha amathathu kahulumeni
isiXhosa Ukwahlukanisa kwemimandla
Inqobo ethi kufanele ukuba kubekho ukwahlukaniswa kwemisebenzi, kwezinye iimeko
kwahlukaniswe abasebenzi bamasebe amathathu karhululemente
Northern Kgaoganyo ya maatla
Sotho Molawana wa gore go swanetše go be le kgaoganyo ya mošomo gomme, mabakeng a
mangwe, bašomedi ba makala a mararo a mmušo
isiNdebele Ukwehlukaniswa kwamandla
Lo kumgomo othi kufanele kube khona ukwehlukana kwemisebenzi kanye, nakobunye
ubujamo, abasebenzi bamagatja amathathu karhulumende
Setswana Kgaoganyo ya dithata
Ntlhatheo ya gore go tshwanetse ga nna le kgaoganyo nngwe ya ditiro le, mo
mabakeng a mangwe, badiri ba makala a mararo a puso
Sesotho Karohano ya matla
Theo ya hore ho lokela ho ba le karohano e itseng ya tshebetso le, maemong a mang,
basebetsi ba makala a mararo a mmuso
siSwati Kwehlukaniswa kwemandla
Inchubomgomo letsi kufanele kube nekwehlukaniswa lokutsite kwemisebenti Kanye,
kuletinye timo, etisebentini talamagatja lamatsatfu ahulumende
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Tshivenda Khethekanyo ya maanḓa

Mulayo wa uri hu tea u vha na u fhandekanywa huṅwe ha mishumo na, kha dziṅwe
nyimele, vhashumi vha matavhi mararu a muvhuso
Xitsonga Ku hambanisiwa ka matimba
Nsinya wa leswo ku fanele ku va na ku hambanisiwa ka mitirho; kasi eka swiyimo
swin’wana, vatirhi va marhavi manharhu ya mfumo
Afrikaans skeiding van magte
Die beginsel dat daar ’n mate van skeiding van funksies en, in sommige gevalle,
personeel van die drie regeringsvertakkings moet wees
State
a term which is often used as if it means the same as “the government”. However, the two are not
the same. “The state” has the following characteristics: (a) it is a specific geographically defined
territory (eg the Republic of South Africa); (b) it comprises a community of people living within that
territory; (c) it has a legal order which is accepted by the community and by which it is governed; (d)
it has an organized system of government which is able to uphold the legal order, and (e) it has a
certain measure of separate political identity, if not fully sovereign political status. It is the permanent
bearer of authority within a particular country
isiZulu Umbuso
leli yitemu elivamise ukusetshenziswa njengetemu elifana nelithi “uhulumeni”. Kodwa-
ke awafani lawa matemu amabili. Itemu elithi “umbuso” linalezi zici-bunjalo
ezilandelayo: (a) umbuso unendawo ebekwe futhi yachazwa ngokucacile (isibonelo,
iRiphabhulikhi yaseNingizimu Afrika); (b) ubandakanya umphakathi wabantu abahlala
ngaphakathi kwendawo ethile; (c) unemithetho eyamukelwe ngumphakathi futhi
okuyimithetho elawula lowo mphakathi; (d) unohlelo lukahulumeni oluhlelekile
olukwaziyo ukuqinisekisa ukuthotshelwa kwemithetho, futhi (e) unesimo-bunjalo
sezepolitiki esithanda ukwehluka kweminye imibuso, noma-ke isimo-bunjalo esibonisa
ukuzimela ngokuphelele. Ungumnikazi ngokuphelele futhi unomphela wamandla
namagunya ngaphakathi kwendawo ethile
isiXhosa Ilizwe (ilizwe)
ligama elisetyenziswe ngokuqhelekileyo ngokungathi lithetha into enye/efanayo
“norhulumente”. Nangona kunjalo, ezi zinto zimbini azifani. “Ilizwe” libonisa ezi mpawu
zilandelayo: (a) ngummandla ochazwe ngokobume bawo ngokwejografi (umzekelo,
iRiphabhlikhi yoMzantsi Afrika); (b) liquka abantu abahlala phakathi kuloo mmandla; (c)
linenkqubo yasemthethweni eyamkelwa luluntu kwaye lulawulwa ngawo; (d) linenkqubo
elungiselelelweyo/ehleliweyo karhulumente eyamkelweyo ngabantu nendlela ebuswa
ngayo ekwaziyo ukugcina inkqubo esemthethweni kwaye (e) linomlinganiselo othile
wokulibona ngokwahlukeneyo kwezopolitiko ukuba ngaba awuzimelanga
ngokupheleleyo kwezopolitiko. Lilo eliphethe igunya elisisigxina phakathi kwelizwe
elithile
Northern Naga (pušo)
Sotho ke lereo leo gantši le dirišwago o ka re le na le tlhalošo ya go swana le “pušo”. Le ge
go le bjalo, bobedi bja ona ga a swane.“pušo” e bontšha dipharologantšho tše di
latelago: (a) ke tikologo ye e itšeng ya naga ye e hlalošwago (mohl Rephabliki ya
Afrika Borwa); (b) e na le setšhaba sa batho bao ba dulago tikologong yeo; (c) e na le
tshepedišo ya semolao yeo e amogetšwego ke setšhaba seo gape se bušwago ke
yona; (d) e na le mokgwa wa mmušo wo o beakantšwego wo o kgonago go tiiša
tshepedišo ya semolao; (e) e na le kelo ye e itšeng ya sehlopha seo se aroganego sa
dipolotiki, ge e se ya seemo ka botlalo sa maatla a boipušo. Ke yona e nago le bolaodi
bja saruri ka gare ga naga ye e itšeng
isiNdebele Umbuso (state)
Kulithemu elivamise ukusetjenziswa njengegama elitjho okufana nokuthi urhulumende
“the government”. Yeke-ke, amagama amabili lawa akafani. Umbuso ukhombisa

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 amatshwayo alandelako: (a) kuyindawo esemhlabeni othileko (isib. iRephabliki
yeSewula Afrika); (b) inomphakathi wabantu abahlala ngaphakathi kwendawo leyo; (c)
inehlelo lomthetho olandelwa mphakathi begodu kumthetho okubuswa ngawo; (d)
inesistimu ehlelekileko karhulumende okwazi ukuphakamisa ihlelo lezomthetho,
begodu (e) inehlelo elithile lamatshwayo ahlukeneko wezepolotiki, nakungasi yinarha
enamandla wezepolotiki agcweleko. Ilihlelo elinamandla wokubusa ngaphakathi
kwenarha
Setswana Mmuso (naga)
ke lereo le gantsi le dirisiwang jaaka e kete le kaya “puso”. Fela mareo ka bobedi ga a
tshwane. “Mmuso”/“Naga” o na le dintlhatheo tse di latelang: (a) ke lefelo le le
tlhalosegang la jeokerafi (jk Rephaboliki ya Aforikaborwa); (b) o na le batho ba ba
nnang mo lefelong leo; (c) o na le thulaganyo ya semolao e e amogelwang ke batho le
e o e laolang; (d) o na le thulaganyo e e rulaganeng ya puso e e kgonang go tshegetsa
thulaganyo ya semolao, mme; (e) o na le seemo se se rileng sa boitshupo jwa
sepolotiki, fa e se seemo se se ikemetseng sa sepolotiki. ke motshodi wa leruri wa
dithata mo nageng e e riling
Sesotho Naha (naha)
ke lentswe le atisang ho sebediswa jwalo ka ha eka le bolela “mmuso”. Leha ho le
jwalo hase mantswe a tshwanang. “Naha” e bontsha ditshobotsi tse latelang: (a) ke
sebaka se itseng se kgethilweng ho latela sebaka (mohlala Rephaboliki ya Afrika
Borwa); (b) e kenyelletsa setjhaba sa batho ba dulang sebakeng seo; (c) e na le taelo
ya molao e amohelwang ke setjhaba mme eo e laolwang ke yona; (d) e na le tsamaiso
e hlophisitsweng ya mmuso e kgonang ho boloka taelo ya molao, le; (e) e na le
tekanyo e itseng ya boitsebiso ba dipolotiki bo ka thoko, haeba ese boemo bo
felletseng ba dipolotiki ba bobusi. Ke mojari wa matla wa nako yohle wa naha e itseng
Tshivenda Muvhuso (shango)
ndi themo ḽine kanzhi ḽa shumiswa sa u nga ḽi amb zwi fanaho na “muvhuso”. Naho
zwo ralo, aya mathemo mavhili ha fani. “Shango” ḽi sumbedza zwiṱaluli zwi tevhelaho:
(a) fhethu ho khetheaho ha ḓivhavhupo (sa tsumbo Riphabuḽiki ya Afrika Tshipembe);
(b) ḽi na tshitshavha tsha vhathu vha dzulaho afho fhethu; (c) ḽi na ndaela ya mulayo
ine ya ṱanganedzwa kha tshitshavha na ine ya langiwa ngayo; (d) ḽi na sisiṱeme yo
dzudzanyeaho kana muvhuso une wa kona u bveledza nzudzanyo ya mulayo, na; (e) ḽi
na tshikalo tsho imaho nga uri vha vhunṋe ha polotiki ho khetheaho, arali hu si vhuimo
ha vhuḓivhusi tshoṱhe ha politiki. Ndi mufara vhulanguli wa tshoṱhe kha shango ḽo
imaho ngauri
Afrikaans Staat (die staat)
is ’n term wat dikwels gebruik word asof dit dieselfde as “die regering” beteken. Die
twee terme is egter nie dieselfde nie. “Die staat” het die volgende eienskappe: (a) dit is
’n bepaalde geografies omlynde gebied (bv die Republiek van Suid-Afrika); (b) dit
bestaan uit ’n gemeenskap van mense wat in daardie gebied woon; (c) dit het ’n
regsorde wat deur die gemeenskap aanvaar word en waarvolgens dit regeer word; (d)
dit het ’n georganiseerde regeringstelsel wat die regsorde kan handhaaf en (e) dit het
’n sekere mate van afsonderlike politieke identiteit, of selfs ’n ten volle soewereine
politieke status. Dit is die permanente draer van gesag in ’n bepaalde land
Statutory Law
the law written down in statutes, parliamentary and provincial Acts, by-laws, proclamations,
regulations and other subordinate legislation
isiZulu Imithetho ebhaliweyo
lokhu kusho imithetho ebhalwe phansi kwimithetho-migomo, naseMithethweni
yephalamende neyezifundazwe, emithethweni yomasipala, ezimemezelweni
ezisemthethweni, kwimithetho-nqubo kanye neminye imithetho eshaywe ngaphansi
kwegunya lomthetho-ngqangi wephalamende
isiXhosa Umthetho omiselweyo
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Umthetho obhaliweyo kwimithetho yombuso, imimiselo yepalamente kunye

neyamaphondo, imithetho egunyaziswe ngoomasipala, izaziso ngokusemthethweni,
imithetho egunyaziweyo kunye neminye imithetho eimninane/ehlonyelweyo
Northern Molao wo o ngwadilwego
Sotho molao wo o ngwadilwego ka go melao ye e ngwadilwego, Melao ya palamente le
diprofense, dikgoeletšo, melawana le molao wo o hlomilwego ke bolaodi bjo bo filwego
maatla a go dira bjalo
isiNdebele Umthetho otloliweko
Lo kumthetho otlolwe phasi encwadini yama-statutes, kumiThetho yepalamende kanye
neyesifunda, imithetho yabomasipalada, iimemezelo, imithetjhwana, kanye neminye
imithetho engaphasi kwaleyo
Setswana Molao o o fetisitsweng
molao o kwadilweng mo melaong e e fetisitsweng, Melao ya palamente le diporofense,
melawana ya mafelo, dikgoeletso, melawana gammogo le melao e mengwe e sa
dirwang kwa palamenteng
Sesotho Molao o ngotsweng
molao o ngotsweng fatshe melaong, Melao ya paramente le porofense, melao e
entsweng ke ba boholong ba lehae, diphatlalatso, melao le molao o mong o
kopanetsweng o ka tlase
Tshivenda Mulayo ndaedzwa
mulayo wo ṅwalwaho fhasi kha milayo, Milayo ya phalamennde nay a vundu, na
milawana, milevho, ndaulo na iṅwe theo thikhedzi ya mulayo
Afrikaans Wettereg
die reg soos in statute, parlementêre en provinsiale wette, verordeninge, proklamasies,
regulasies en ander ondergeskikte wetgewing neergeskryf
Supreme Constitution
the Constitution is the highest law in the country. Although Parliament remains the highest legislative
(law-making) body in a system of government with a supreme constitution, any legislation or action
of any government body (including parliament) which is in conflict with the Constitution, will be invalid
isiZulu Umthethosisekelo Ophakemeyo
uMthethosisekelo ngumthetho ophakeme kunayo yonke eminye imithetho ezweni.
Nakuba iPhalamende liyohlala liyisikhungo esiphakeme kunazo zonke esishaya
imithetho ohlelweni lukahulumeni olunomthethosisekelo ophakemeyo, noma
yimuphi umthetho noma isinyathelo sanoma yiluphi uhlaka lukahulumeni
(kubandakanya nephalamende) esiphikisana/ezingqubuzana noMthethosisekelo
siyothathwa njengesingekho emthethweni futhi esiyize leze
isiXhosa Umthetho wenkundla ephakamileyo
uMgaqo-siseko ngowona mthetho uphakamileyo elizweni. Nangona iPalamente ihlala
isesona sikhundla esiphezulu sowiso-mthetho (ukwenza umthetho) kwinkqubo
karhulumente enomgaqo-siseko ophakamileyo, naluphi na uwiso-mthetho okanye
isenzo nesaliphi na iqumrhu likarhulumente (kuquka nepalamente) engavumelani
noMgaqo-siseko, ayiyikuba semthethweni/ayiyikuvunyelwa/ayiyikunikwa ngqalelo
Northern Molaotheo bjalo ka molao wo o phagamego
Sotho Molaotheo ke molao wo o phagamego wa naga. Le ge Palamente e tla fela e le
popego ya maatla a go dira melao (tlhako ya melao) peakanyong ya pušo ya go ba le
molaotheo bjalo ka molao wo o phagamego, tlhakamolao goba tiro efe goba efe ya
popego ya mmušo ofe goba ofe (go akaretšwa palamente) yeo e lego kgahlanong le
Molaotheo, e ka se sa tšewa go ba ye e lego molaong
isiNdebele UMthethosisekelo oPhakemeko
UMthethosisekelo kumthetho omkhulu enarheni. Nanyana iPalamende ihlala iliziko
elisibethamthetho esiphakemeko (esenza umthetho) kuhlelo likarhulumende
elinomthethosisekelo ophakemeko, omunye nomunye umthetho ophasisweko

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 nanyana umsebenzi weziko elinye nelinye likarhulumende (kufakwa ipalamende)
ephikisana noMthethosisekelo, lizokuphikisana nomthetho
Setswana Molaotheo o mogolo
Molaotheo ke molao o mogolo go gaisa mo nageng. Le fa Palamente e sala go nna
setheo se segolo go gaisa sa theomolao (se se dirang molao) mo thulaganyong ya
puso e e nang le molaotheo o mogolo, molao ope fela gongwe kgato ya setheo sepe
sa puso (go akarediwa palamente) e e ganetsanang le Molaotheo, e ka se dire
Sesotho Molaotheo o Phahameng
Molaotheo ke molao o phahameng ka ho fetisisa naheng. Le hoja Paramente e ntse e
le mokgatlo o phahameng ka ho fetisisa wa molao (ho etsa molao) tsamaisong ya
mmuso ka molaotheo o phahameng, molao ofe kapa ofe o kopanetsweng kapa ketso
ya mokgatlo ofe kapa ofe wa mmuso (ho kenyelletswa paramente) e kgahlanong le
Molaotheo, e tla ba e sa lokelang
Tshivenda Ndayotewa Khulwane
Ndayotewa ndi wone mulayo muhulwanesa kha shango. Naho Phalamennde I tshi
dzula I tshiimiswa tsha theo ya mulayo (vhusimamilayo) kha sisiṱeme ya muvhuso I re
na ndayotewa khulwane, theo ya mulayo kana nyito iṅwe na iṅwe ya tshiimiswa tsha
muvhuso (hu tshi katelwa phalamennde) ine ya lwa na Ndayotewa, I ḓo vha I sa shumi
Afrikaans Die oppergesag van die Grondwet
die Grondwet is die oppergesag in ons land. Alhoewel die parlement steeds die
hoogste wetgewende liggaam is in ’n regeringstelsel waarin die grondwet die
oppergesag het, is enige wetgewing of optrede deur enige regeringsliggaam (insluitend
die parlement) wat teenstrydig met die Grondwet is, ongeldig
Ubuntu
can be regarded as an African view of life and of the world. It can be described as ‘African
Humanism’, involving alms-giving, sympathy, care and sensitivity for the needs of others, respect,
patience and kindness
isiZulu Ubuntu
lokhu kuthathwa njengendlela-kubuka impilo ngokwase-Afrika kanye nangokomhlaba
jikelele. Kuchazwa njenge-‘African Humanism’, ebandakanya ukuphana, uzwelo,
ukunakekela kanye nokubhekelela izidingo zabanye abantu, ukuhlonipha,
ukubekezela kanye nobubele
isiXhosa Ubuntu
bunokuthathwa njengembono yobomi yobuAfrika kunye nehlabathi. Inokuchazwa
njengoBuntu bobuAfrika'(njengenkqubo ebona abantu benokuziphilela ngaphandle
kweempembelelo zenkolo), buquka ukunika izipho, ukubonisa imfesane, ukunakelela
nokukhathalela iimfuno zabanye, intlonipho, umonde kunye nobubele
Northern Botho
Sotho E ka tšewa bjalo ka kgopolo ya Seafrika ya bophelo le lefase. e ka hlalošwa go ba
‘Bobotho bja Maafrika’ bjo bo akaretšago go fa bahloki, kwelobohloko, tlhokomelo le
go nagana ka dinyakwa tša batho ba bangwe, tlhompho, bopelotelele le go loka
isiNdebele Ubuntu
Lokhu kungathathwa njengendlela sibona ipilo ngayo e-Afrika kanye nephasini loke.
Lokhu kungahlathululwa njengoBuntu be-Afrika “African Humanism”, kufakwa
phakathi ukusingathana, ukuzwelana, ukutjhejana kanye nokufuna ukuba nabanye
abantu, ihlonipho, ukubekezela kanye nomusa
Setswana Ubuntu/Botho
e ka tsewa jaaka selebo sa SeAforika sa botshelo le lefatshe. E ka tlhalosiwa jaaka
'Botho jwa SeAforika', jo bo akaretsang go thusa batlhoki, kutlwelobotlhoko,
tlhokomelo le go kgathalela ditlhokego tsa ba bangwe, tlotlo, bopelotelele le molemo
Sesotho Ubuntu
e ka nkwa e le pono ya Seafrika ya bophelo kapa ya lefatshe. E ka hlaloswa e le

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“Botho ba Seafrika”, bo kenyelletsang menehelo ya boithaopo ho thusa ba

futsanehileng, kutlwelo-bohloko, tlhokomelo le kutlwisiso ditlhokong tsa ba bang,
tlhompho, mamello le mosa
Tshivenda Ubuntu (Vhuthu)
zwi nga dzhiiwa sa kuvhonele kwa Afrika kwa vhutshilo na ḽifhasi. Zwi nga
ṱalutshedzwa sa ‘Vhuthu ha Afrika’, vhu katelaho u ṋekedza thuso, u pfela vhuṱungu,
ndondolo na u pfesesa ṱhoḓea dza vhaṅwe, u ṱhonifha, u konḓelela na vhuhwavho
Afrikaans Ubuntu
kan beskou word as die Afrika-manier om na die lewe en die wêreld te kyk. Dit kan
beskryf word as Afrika-Humanisme en behels die gee van aalmoese, simpatie,
versorging en sensitiwiteit vir ander se behoeftes, respek, geduld en vriendelikheid
Validity
the quality of being logically or factually sound; soundness or cogency

isiZulu Okufanele/ukufaneleka
Lesi yizinga lokuba sesimeni esifanele noma esizwakalayo ngokweqiniso, ukuzwakala
kahle noma ukuqiniseka
isiXhosa Okumiselekileyo
Ukuba neempawu zokufaneleka, ukucaca, ukuvakala okanye ukuqondakala
okungenakuphikiswa
Northern Kwagalago ka mabaka
Sotho Khwalithi ya go kwagala ka mabaka goba go kgodiša; go kwagala goba go kgodiša
isiNdebele Ukufaneleka/ukuzwakala kuhle
Leli kulizinga lokucabangisisa kuhle nanyana ngokweqiniso elizwakalako; ukuba
sebujameni obufaneleko nanyana obuhle
Setswana Kamogelesego
ponagalo ya go nna le tlhaloganyo le dintlha; tsepamo gongwe go dumelesega
Sesotho Ho nepahala
Boleng ba ho utlwahala le ba nnete; ho utlwahala kapa ho tsitsa
siSwati Kuba nemandla emtsetfweni
lizingagugu lekuba nengcondvo lehlelekile nalecemaphuzu lanembako; kubhadla
kwengcondvo
Tshivenda Vhundeme
Ndeme ya u vha vha na thevhekanyo kana mbuno dzi pfadzaho, u pfala kana maanḓa
Xitsonga Validity
ku va nchumu wu ri wona hikunene no va ntiyiso hi ku helela; ku twala kahle no
hlamuseriwa hi vuheleri
Afrikaans Geldigheid
Die eienskap om logies of feitelik steekhoudend te wees; gegrondheid of afdoendheid

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