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 CSL2601/102/2024
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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 8
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.
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