Constitutional Law 214

Introduction:
 Context – Introduction to Constitutional Law 178 (last year)
o = colonialism + apartheid
o We are trying to undo but we’re doing it unsuccessfully
o = parliamentary supremacy
o Transition from parliamentary supremacy (apartheid) to constitutional
supremacy (democracy)
o Constitutional principles had to be certified by the Constitutional Court,
informs the context.
o The government is not solely responsible for land rights
 Stubborn/persistent inequality and poverty – does not want to go away (corruption,
lack of political will and apartheid)
 Why is SA is such a state (of disaster)?
o We don’t know why, structures of government are not using their powers to
their full extent to achieve the society we strive to be. Courts are not
performing optimally.
 Constitution of the RSA, 1996 – purpose of the or a constitution?
o to regulate how the state interacts with the subjects and how the state interacts
with each other
o creates institutions, awards power and constrains power
 Creation of state institutions:
o Legislature
 National
 Provincial
 Local
o Executive
 National – Cyril Ramaphosa
 Provincial – Premiers
 Local – Major
o Judiciary (only 1!)
o Interacts vertically and horizontally with one another – Horizontally 
national legislature interacts with national executive
o Prevent abuse between the branches of government (constrain power)
o Theoretical underpinning – separation of powers lens

Separation of Powers Doctrine

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 Historical origin: do away with the monarchies started in the 17th century. There were
some checks and balances in chiefdoms even but it did not translate.
 Four principles:
o Trias politica – three branches of government
o Separation of functions – responsible for a unique function which is assigned
to them according to the law
o Separation of personnel – usually different people involved in different
branches.
o Checks and balances = branches can check each other to prevent abuse
 Apartheid South Africa – political exclusion and so forth. When apartheid fell, the
transition started.
 Transition – Constitutional principle IV om Interim Constitution
o ‘There shall be a separation of powers between the legislature, executive and
judiciary, with appropriate checks and balances to ensure accountability,
responsiveness and openness’
o How can we ensure accountability, responsiveness and openness? We will talk
about this throughout the module.
o Several objections to the new text  First Certification Judgment paras 106-
113
 Principle objection re violation of CP VI?  No clear separation between members of
executive and legislature, at all levels of government (personnel) – with a supposed
negative consequence.
 The cabinet having a big influence in the national assembly was the objection.
 USA / France / the Netherlands – Germany (on two opposite sides)
 Member of the personnel could not be members of the executive  more strict
division between the two. In Germany there were no strict separation in separation of
powers. There is no universal separation of powers model.
 Doctrine is there for a reason
o Functional independence of the branches (to protect it)
o Checks and balances to maintain constitutional order and prevent usurpation
of power
 Intrusion sometimes necessary / unavoidable
o Can also be one of partial separation, not complete separation
 Separation of powers not a rigid or fixed doctrine, but must serve a purpose  the
SoP Doctrine is open to interpretation as it is not fixed, in order to serve a particular
purpose. Who decides on the limits etc?  the courts. They can manoeuvre the SoP
document.
 ‘makes the executive more directly answerable to the elected legislature’ [para 111]
The overlap between the two make the executive more directly answerable to the
elected legislature.
 Q: In what ways?
 Q: Has the executive been ‘more directly answerable to the elected legislature’?

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 o The accountability is not included here. They Side note: we do not make the
have been more directly answerable but they difference between a civil servant
have not really been answerable (there is a and the director general of a
difference). department and the minister. We
 Ultimate finding on the objection raised – not accepted focus on the political figurehead for
by the courts. The objection had to include the overlap not doing their job and not running
their individual departments.
between the executive and legislature. The separation
is clearer but not absolute.
 Moseneke ‘Oliver Schreiner lecture’ SAJHR 2008  VERY INTERESTING
ARTICLE
o gave credit to Schreiner as he went against the 10 other judges who chose to
remove the coloured people from the common voter’s roll. Like Schreiner who
was overlooked for the position of chief justice, so was Moseneke was
overlooked for the position of chief justice as well. This article does speak a
bit about the courts and the courts role and judiciary.
o = Focuses strongly on the role of the judiciary and its role
o Judiciary must ‘police’ the other branches and are ultimately the guardians of
the doctrine.
o = Courts are the guardians of the Constitution
o = Independence, impartiality, integrity must be protected

Separation of Powers and Courts

 SA Association of Personal Injury Lawyers v Heath 2000 (CC)

Recap (finishing the Introduction to Separation of Powers):

 How the SoP for the particular purpose was one of the principles in the Interim
Constitution
 History: strong centralized power and they tried to fuse everything into one system
 The executive is part of the legislature but the court did not accept that
 The point was made that the executive authority was still heavily involved in the
legislature
 It did not deal with the role of the judiciary and his role in the separation of doctrine
paradigm. It speaks about the independence of the judiciary
 The judiciary is to police the other branches because they were interfering with their
roles of each power

The Heath Decision:

 Issue: the fact that a judge is appointed as head of the SIU, which has executive
responsibilities and has to exercise a lot of executive power. This means that there is
no separation of power if a judge is part of the executive factors

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  Required to a judge to perform executive functions. It is not a role that the judiciary
should have. The SIU also has the power to litigate.
 The objection was that it is contrary to the SoP doctrine
 The president acted in the back of the legislation  now you have to attack the
legislation for allowing this and for the person that is appointed
 For the proper functioning of the courts, it is vitally important that the member of the
judiciary are seen as separate from the other functions. It is important because of the
work that they do and to protect their integrity
 The court can make the order and say that this is what the order is but they cannot
make the order effective. This means that the other branches have to be convinced by
the judiciary to enable this order which is why the aspect of integrity is important.
And that is why that should be independent.
 It would be seen that the judge (the head of this operation) would be seen performing
the executive functions. The separation has to be clear.
 The fact that there is a partial separation, and the fact that there is an overlap it does
not undermine the authority as long as the specific duties that are performed are
performed by the correct branches. This means that there is no absolute.
 The executive assists the appointment of judges. Therefore there has to be a clear
separation and not absolute
 The point that the court makes about the independence of the judiciary. You have to
think of how it is protected. The courts have an important role to play in the
separation. The judiciary is the way to check for checks and balances for the
branches. The judiciary in SA has been the last institution that holds up the
democratic system.

Where is there no absolute separation?

 There are safeguards that should prevent certain kinds of abuse. At the end of the day,
it comes to a choice that was made when it came to negotiations as to how they
decided to set up the governmental system.
 Look at the appointment process of judges. The executive branch was elected by the
legislature and the parties that we chose.
 The finding of Heath decision:
o The judiciary has a very important role to play in the exercise of power. This
means that the judiciary has to be separate from the executive branch
 The finding of the court:
o The appointment of the judge as head of the SIU was found to be inconsistent
with the SoP doctrine.
o The court invalidated the appointment
 Rule of law you can use to invalidate. The SoP is not there in the Constitution but you
can still use it though. Legality you can attach to a piece of legislation in the law.

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  There is a section in the case in which it states that it is better to keep it open ended,
as a result of it being better Jurisprudence-wise. The judiciary will decide how to
formulate the doctrine in order to deal with that particular case.

Zuma’s speech:

 Paragraph 25 – Zuma is accusing the judiciary of taking too much power. It is how
they used the doctrine to invalidate the laws as well as the fact that they has taken
over executive roles. It says that the judiciary is taking over.

SoP Doctrine: Challenges?

 Who polices the police? One of the problems is the fact that the judiciary has been
seen to have too much power and the fact that they cannot be held accountable. It is
seen that they are not respecting the separation of powers.

Courts were given strong judicial review powers enforces checks and balances, because it
makes the courts have the power to check and hold other branches accountable.

Impact on the Separation of Powers Doctrine?

 Positive: Checks and Balances is strong

 Negative: The Counter-Majoritarian Dilemma (google this)- the courts are getting
involved in issues that they should not be involved in. (look at this again?) The court
may interfere in budgetary obligations. – he told us the story of how the women was
not able to get public health care because she did not meet the requirements of the
dialysis. I ZONED OUT and got a bit confused.
 The courts can be seen taking over other branches of the government and they get
involved in disputes that they should not
 The court can say that this policy is unconstitutional and they can say that this policy
must be used to sort out this particular issue and then the state has to provide with the
new policy according to the court.
 This is an example of the budget. Where the court will say to the state that the issue of
housing needs to be addressed and that is not part of the budget but because they are
involved the budget has to be redone and then it means that money is taken away from
other aspects, so instead of giving money to fix the roads, that money is now used for
housing because the courts said so.
 Courts determin the content and the breach of separation of powers- yet they cannot
police themselves. e.g) Mwelase v Director General, Land Reform 2018 (cc) Majority
v Minority.
 When you had weak rights to land. Your grandfather and father work and lived on the
farm form generations and you have a house there. But you do not own the land but
you have been there for years. Then you have to apply to change your weak right to a
strong one and to change your insecure title to property rights. The executive power

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 has to convert in the land reform in order to change from weak to strong rights and
final have ownership of the land.
 This did not work because of the lack of function. They are so far behind and there are
so many land reforms that have not been dealt with.
 They have a special master that has to draw a plan and make a budget as to how they
are going to resolve this. The special master is a court official. Th court is sending one
of their officials and they give the option to do executive work on land reforms.
 They say that there is breach in the separation of powers because the court cannot
give one of their associates the executive power to take over executive functions
under the function of land reform when they are not supposed to. This is seen as a
breach in the separation of powers. SO where is the bounds in the Separation of
powers?
 How was this resolved? They said that due to the inability for the land reform top do
it themselves, they said that the appointment of the special master to do the executive
work should be valid and they should make a budget and they should be able to solve
the issue – this was the majority!
 Jafta- the constitution does not allow for the courts to interfere for the other branches
of government. It says that the court should not have that power and those types of
duties because it could result in issues regarding a 3rd party. – This was the minority!
 SO now the court is split down the middle. SO, who polices the courts? The majority
says that it is fine, and the minority says that it was wrong. So due to it being
“unconstitutional” it means that they have to say the majority judgment is wrong! So,
they have to rectify the situation. They did not agree with the taking over the
functions. It gave them too much power. If you are not happy with the state of affairs,
then you have to rely on the electricals because the checks and balances can only go
so far.
 If the courts take over it leads to the Jacob Zuma Quote when he said that the
Judiciary is taking over and it is becoming Judiciary Supremacy.
 If the courts keep interfering it does not do well for the integrity of the courts and the
other branches of government.
 Another issue: The legislatures inability to exert democratic control and why is that?
Because of how the government is set out and the number of seats etc.
 Rise of the Unelected? Becoming more prominent- has been theorized to be the rise of
the 4th branch institutions
 4th branch?- who is the 4th estate? Media?
 They are the chapter 9 institutions- are they elected? No, has there been a rise in the
unprotected in SA? Yes! Public protectors, was made a big player, because they are
able to make binding action which cannot be ignored. Big role player in the branches
of government.

National Legislature Part 1

National legislature: Parliament
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  Parliament consists of the National Assembly (NA) and the National Council of
Provinces (NCOP)
 Interests of the people (NA) and interest of the provinces (NCOP)
 Do not confuse the NCOP with provincial legislatures, they are separate entities.
NCOP is involved in making national legislation along with the NA, while provincial
legislatures are involved in making provincial legislation.
 The province with the most people, has the most say in choosing the members of the
NCOP – like Gauteng
 NA politically more dominant because how our state is set up (see textbook notes for
why the NA is politically is more dominant)
 Role of political parties:
o Our link with the NA are through political parties
o Party government: political parties influence composition, direction (policies),
actions of Parliament (we have a party government). We got this idea of a
party government from the British.
o Political parties are regulated by legislation, as they are not regulated by the
Constitution. This legislation is made by parliament which consists of political
parties. (It’s like a circle, it ends back up at political parties). They need to
disclose their funding, but it’s known that political parties do not want to
disclose where they get their funding or where it goes in general.
o UDM v Speaker of the National Assembly 2017 (CC) para 79
 Members of parliament must ‘serve the people and do only what is in
their best interest”
o Good in theory, but how does it play out in practice?
 Look at the ANC. The party bosses decide who becomes APs. Cyril
and his fraction decides who is on the party list and who will become
part of the NA. They hold an enormous amount of power over the
party. Strict party discipline is enforced, so if I instruct you to vote for
someone in the NA and you don’t then there will be consequences. If
someone goes against the party wishes – disciplinary hearings etc. It
doesn’t play out in practice because of political party bosses’ strict
party discipline.

National Assembly

 There are 400 people in the NA right now. The Const says there should be 350 – 400
but ’50 seats for my friends’.
 Composition and Election: s46
o Proportional representation system (advantages and disadvantages). What is
meant by this? Prs is the percentage of votes they get will conclude how many
seats in the NA they get (example: 50% of votes, they get 200 seats)
 Advantages: smaller parties can have representation in the NA (votes
aren’t wasted); prevents the idea of having constituencies and playing
with boundaries of constituencies; if the majority decides they want to
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 vote for the ANC then they cannot get all the seats in the NA, it makes
the amendment of the Constitution more difficult by one specific party
 Disadvantages: you have no control over who is number one in that
political party (Jacob Zuma is number one in the ANC for example 
you know there is a corrupt person but you have no control over it), if
you can’t get a majority then you need to go in coalition in certain
municipalities (does not work optimally), the major parties have most
seats as the smaller parties have a limited amount of seats (they are not
that influential as the major parties know they have the majority of the
seats so they can sway it how they want things to go).
o Political parties and independent candidates
 New Nation Movement v Pres of RSA 2020 (CC)  independent
candidates should be allowed to contest certain legislation (declared
electoral system unconstitutional, previous ones were valid though).
This was done in June 2020 and we were supposed to have new
legislation by June 2022, but it has still not been done to this day. We
do not have legislation in place for the 2024 elections yet, a Bill has
been passed but people will be going to court to challenge some things
in this Bill. How many votes does an individual need to stand?  even
if an individual gets 500 000 votes then that person still gets ONE
SEAT in the NA.
 Did no one think to amend the Constitution? Limited to these political
choices or that the NA must be structured according to proportional
representation.
o Membership to the NA
 S 47: ‘every citizen who is qualified to vote for the NA’
 Very generous and very broad
 There are certain exceptions: if you were declared of unsound mine for
example
 You need some skill to be a member of the NA, but there has not been
any prescribed qualifications made
o At the first sitting
 The NA must elect a speaker, deputy speaker, president
 Who is responsible for conducting the elections? The Chief Justice
o Duration of the NA
 S49 = 5 years but s50(1) and (2)  exceptions to if they can be
dissolved before the 5 years are up
 S50(1)  president must dissolve NA; 50% + 1; 3 years have passed
since the election. Even if they dissolve the NA right now, then they
will remain in charge until the first day of the election for the new NA
or until its time expires (which is 5 years).
 S50(2)  Acting president must dissolve NA in case of vacancy in
office of the president and NA cannot decide on new president within

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 30 days. A vacancy arises when the president has been removed due to
a vote of no confidence, he resigns, he dies or impeachment (ss 89 or
102)

Functioning of the National Assembly

 S 57(1)(a) and (b) – NA control own internal arrangements, proceedings and

procedures with regard to
o See UDM v Speaker of the National Assembly 2017 (CC)
o If the voting of no confidence should be a secret ballot or an open ballot, the
speaker of the ANC said that the voting should not be a secret and it went to
court. The court said what the voting being secret or not is up to the NA to
decide basically, but they do have a choice.
 = further constitutional limitations – especially when it comes to decision making in
the NA (s 53). Decision making is regulated by the Constitution and it’s important
that the Const regulates this aspect. Look carefully at the wording of s53 regarding
what is regulated (for example that at least 1/3 of the members must be present to vote
about a bill)
 Speaker / Deputy Speaker presides over the NA
o See UDM v Speaker of the NA
o Speaker can remain active member of political party – Tlouamma v Mbete,
Speaker of NA 2015 (WCC)
o Requires a lot of impartiality of the speaker (all the speakers have been from
the ANC because the ANC elects them). There have been very biased speakers
as well, and others like Thandi Modise who was very impartial.

National Council of Provinces

 Not to be confused with provincial legislatures

 Purpose: represent provinces …
 Composition: 90 members, delegation of 10 members per province  allocated
proportionally to the number of votes a party received in the election
 Each province has 4 special delegates and 6 permanent delegates
 Special delegates: premier + 3 other members of provincial legislature
o ‘composition may change from time to time’
o Can change from time to time, like the premier can give up his duties to one of
the other 3 members for example
 Permanent delegates
o Cannot be members of NCOP and provincial legislature
o Purpose of permanent delegates

Function of the NA

1. National forum for debate on national issues (s 42(3)) – it’s important for the NA to
debate matters of national importance, like finances.

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2. Maintaining oversight over organs of state (and national executive) (s55(2)(c)) – if
they are complying with legislative frameworks. Requesting reports, questioning and
asking people to come before them to answer questions
3. Passing of legislation (NA with NCOP)
o Co-operative government – chapter 3 of the Constitution. The assumption is
there that the principle of
o Parliament has the power to pass legislation on ‘any matter’ unless the
Constitution provide otherwise
 Schedules 4 and 5 of the Constitution (4 – indicating areas where the
intentions are mediated. 5 -functional areas of legislative
competencies, areas where the provincial legislatures have exclusive
legislative competency). Can parliament legislate on schedule 5 issues?
No, unless in the issues regarding economic unity for example. Liquor
licenses – provincial competence  cannot buy alcohol in the WC on
a Sunday but you can in the NC.
o Initiating legislation  S73(2) and NA Rules – Oriani Ambrosini, MP v
Sisulu, MP Speaker of the NA 2012 (CC) – Private members’ bill. He did not
get the permission, and complains to the CC. They said don’t be stupid, if
you have this rule that a member of Parliament needs permission to ascertain
a bill, you need proportional representation. The Court also said that we
don’t have a mathematical democracy, we have a pluralistic democracy
(diversity of ideas and opinions)  important when we consider the
apartheid government where we did not have a democracy. Minority parties
can introduce legislation in the NA and have it debated in the NA.
o Private members’ bill  Relocation of the Seat of Parliament Bill B-
29-2022. Introduced by Mr Julius Malema (MP). INSERT EXCERT
OF THE BILL WHICH IS ON THE SLIDES.
o Tagging of Bills
 S74 – Bills amending the Constitution
 S1 – Founding provisions
 = 75% of members of NA
 = 6/9 provincial delegations to NCoP (the NCOP
needs to give 6 votes)
 BoR – 2/3 members of NA; 6/9 provincial delegations
to NCOP
 Any other provision in Constitution
o = 2/3 members of NA; 6/9 provincial
delegations to NCOP, but only if…
1. matters affects NCOP
2. amends provision dealing with provincial
matter
3. alters provincial boundaries

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 o S88? Does it alter a provincial boundary?
Amending S88. States that the president can
only serve two terms, does it affect the
NCOP? See S42(6).
 S75 – Ordinary Bills not affecting provinces

 k
 k
4. Holding executive accountable

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