Constitutional Law Class notes

The state if the nation:

particular context?

o colonialism (e.g. private ownership)

o apartheid
 constitution prior 1994 = parliamentary supremacy
 transition from parliamentary supremacy (apartheid) to constitutional
supremacy (fully fledged democracy)
 post 1994: substantive rights and freedoms AND persistent inequality and
poverty: because of the arms of government that are not operating optimally
o legislatures laws: does it create structures to ensure that there is
transformation?
o where there are laws? is the executive doing a good job to...
o judiciary?

Constitution of the Republic of South Africa, 1996

Purpose:

 create a transformative society; to get us from a society where there is

inequality, poverty to one where there is equality (preface of the constitution)
 empower and structure government
 award and limit power through separation of powers; checks and balances +
through the bill of rights)

Creation of State Institutions

Legislature
National
Provincial
Local

Executive
national - president
provincial - Premier
local- mayors

Judiciary

 interaction vertically and horizontally

 prevent abuse: prevent concerntration of power at one level
 Theoretical underpinning

Separation of Powers Doctrine

historical origin: the north, John Locke
Why? people were fed up by the fact that king/queen/monarcy were devinely
appointed
Four Principles

 trias politicas
 separation of personnel
 checks and balances
 separation of functions

Apartheid South Africa (Moseneke article)

transition - constitutional principle VI in Interim Constitution
"there shall be separation of powers between legislature, executive and judiciary,
with approprate checks and balances to ensure accountability, responsiveness and
openness"

SA Association of Personal Injury Lawyers v Health 2000 (CC)

Separation of Powers: concluding remarks

 = Courts have strong judicial review powers

 = Courts determine content (and breach) of separation of powers
o e.g. Mwelase v Director General, Land Reform 2018 (CC) - majority vs
minority
 = 'rise of the unselected'
o e.g: Jacob Zuma Statement of 25 March 2021 esp para 25
 = legislature is seemingly unable to exert democratic control/ accountability

part 2 - National Legislature

Parliament

 National Assembly (NA), representing the interest of the people

 National Council of Provinces (NCOP), representing the interest of the
provinces
 NA politically more dominant
 Party Government: political parties influence composition, direction (parties),
action of parliament
 UDM v Speaker of the National Assembly 2017 (CC) para 79
o members of parliament must 'serve the people and do what is in their
best interest'
 Good in theory, but seemingly not consistently applied in practice

National Assembly

 composition and election: 46

o proportional representation system (advantages + disadvantages)
o political parties + independent candidares
 new nation movement v pres of the RSA 2020 (CC)
  membership to NA
o s47 'every citizen who is qualified to vote for the NA'
 at first sitting:
o elect speaker, deputy speaker, president

 there are exclusions to who can become a member of the NA

 the chief justice presides over the election of the speaker
 duration of NA
o s49 = 5 years, but s50 (1) and (2)
 s50(1): president must dissolve the NA; 50% + 1; 3 years have passed since
election
 s50(2): acting president must dissolve NA in case of a vacancy in office of the
president and NA cannot decide on new Pres within 30 days
 vacancy: death, resignation, removed ito ss 89 or 102

Functioning of the National Assembly

 political branch; s 57(1)(a): NA may determine and control own internal

arrangements, proceedings and procedures
o UDM v Speaker, National Assembly 2017 (CC) esp paras 57-60
 constitution prescribes voting, but it doesn't prescribe HOW
voting should take place when it comes to the voting out a
president
 s 57(1)(b): NA may make rules and orders concerning its business with regard
to...
 national assembly rules 9th ed 2016 (with amendments)
o UDM v Speaker, National Assembly 2017 (CC) esp paras 65-69; rule
103 & 104
 = further constitutional limitations - decision making...
o s53 - decision making powers when NA votes on a matter
 speaker/ deputy speaker presides over the NA
o UDM v speaker, NA 2017 (cc)
o speaker can remain active member of political party
 Tlouamma v Mbete, speaker of NA 2015 (WCC)

National Council of Provinces - not to be confused with provincial legislature

 purpose: represent provinces, ensure provincial interests are taken into

account
 composition: 90 members, delegation of 10 members per province
o allocated proportionally
 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
 permanent delegates: cannot be member of NCOP + Provincial legislature
 purpose of permanent delegates
Four functions of National assembly

 National forum for debate on state issues (s42(3))

 Maintaining oversight over organs of state (and national executive) (s55)(2)(c)
 Holding the executive accountable

National Legislature: Function of the National Assembly

1. National Forum for debate on national issues

2. maintaining oversight over organs of state (and national executive) (s 55(2)
(c))
o National Assembly: maintain oversight over the public protector, and all
the other organs of state performing a function in terms of the
Constitution and legislation
o institutions performing oversight in terms of legislation: universities
3. holding the executive accountable
4. passing of legislation (with NCoP)

Introduction

 NA has constitutional mandate to hold executive accountable

 s 42(3): NA obligation to scrutinise and oversee executive action
 s 55(2)(a): The NA must provide for mechanisms to ensure that all executive
organs in the national sphere are accountable to it
o EFF v Speaker, National Assemble 2017 (CC) [EFF 2]

president removed by:

 s 89 of the Constitution - impeachment

 S 102 of the Constitution - motion of no confidence
o motion of no confidence ito s 102
o Mazibuko v Sisulu 2013 (CC)
o = no party may bock tabling of a vote of no confidence: why?
 UDM v Speaker, national assembly 2017 (CC) [secret ballot decision]
 = speaker has the authourity to order vote of no confidence to take place via
secret ballot