MARKING MEMORANDUM FOR DISTRIBUTION TO STUDENTS:

CSL2601 – MAY 2015

QUESTION 2
2.1 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. No-Nonsense 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 also relies 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.
Does the newly formed Republic of No-Nonsense qualify as a state? (To answer this
question, you must list the characteristics of a state.) (5)
The characteristics of a state are:
1) a specific, geographically defined territory;
2) a community of people who live within that territory;
3) a legal order to which the community is subject,
4) An organised system of government which is able to uphold the legal order;
5) a certain measure, at least of separate political identity, if not sovereign political status.

From the facts we are able to determine that the Republic of No-Nonsense (a community of
like people) declared itself an independent country, and possesses a geographically defined
territory, thus it is afforded a separate political identity. The fact that the inhabitants are
pleased with the governance of the republic indicates that there is a legal order. Further, the
Republic is ruled by General Talk At Your Own Risk, indicating a system of government.
Therefore, the Republic of No-Nonsense qualifies as a state.

2.2 When does the president exercise executive authority? (6)

Section 84 and 85 provide that the president’s powers as head of the national executive
authority includes performing any executive function provided for in the Constitution or in
national legislation. When the president is exercising a political discretion on behalf of the
government, he is acting as head of the executive. The president is exercising executive
authority when he appoints the Deputy President, Cabinet Ministers and Deputy Ministers. He
also has the authority to appoint the leader of government business in the National Assembly
from among the members of the National Assembly (the Speaker of Parliament).
The President exercises executive authority by:
~ implementing national legislation except where the Constitution or an Act of Parliament
provides otherwise
~ developing and implementing national policy
~ co-ordinating the functions of state departments and administrations
~ preparing and initiating legislation
~ appointing judges (section 174(3));
~ appointing the National Director of Public Prosecutions (section 179(1)(a));
~ appointing the Military Command of the National Defence Force (section 202(1));
~ appointing the National Commissioner of the South African Police Service (section 207(1));
~ appointing the head of the National Intelligence Agency (section 209(2));
~ appointing an inspector monitoring the intelligence service (section 210);
~ appointing members of the Financial and Fiscal Commission (section 221(1)).

2.3 What does it mean to act “together with the other members of the Cabinet”? (4)
This indicates that decisions on the powers and functions of the president as head of the
national executive are normally taken at cabinet meetings. The degree of consent needed from
other members of the cabinet depends on the decision-making procedures followed in the
cabinet. In other words, “consultation” is required, even though the president is not bound by
any recommendations made. However, in some instances, the president may only make
executive decisions “on the recommendations or advice” of cabinet. Examples include a
declaration of a state of national defence, which must be approved by parliament. In addition, it
entails that the president must be sensitive not only to the members of cabinet who elected him
but also to the general public who voted for the political party which won the election.

2.4 Read the following passage and answer the questions that follow:
On 20 September 2008, the ANC Secretary General, Gwede Mantashe, publicly
announced that the ANC has decided to recall the former president, Thabo Mbeki. In
response to this, on 25 September 2008, the then Minister in the Office of the
President, Essop Pahad, said “I personally do not agree with the decision of the NEC
(the National Executive Committee of the ANC). I think the decision (to recall Mbeki)
was profoundly unjust”.
Answer the following questions with reference to section 89 of the 1996 Constitution
which provides for the removal of the President from his office:
(a) Who has the power to remove the President? (2)
National Assembly by passing a resolution with a two-third majority (66.6%) vote in favour.
(b) On what grounds can the President be removed from office? (3)
1) serious violation of the Constitution or law;
2) serious misconduct;
3) inability to perform functions of office. [20]

QUESTION 3
3.1 With reference to the provisions of the Constitution and case law, critically discuss
the privileges of Members of Parliament and how these privileges are regulated. (10)
Parliamentary privileges are the powers and privileges enjoyed by members of Parliament that
enable them to perform their functions without hindrance (external interference). Privileges are
stipulated in section 57(1) of the Constitution and include (1) the privilege of Parliament to
punish persons for contempt and to determine its own procedures; (2) the freedom of members
to say anything in Parliament, without having to fear that they will be held liable in a Court of
law; (3) Parliamentary privileges under the 1996 Constitution. The particulars of the privileges
provided for in the Constitution are regulated by the Powers and Privileges of Parliament and
Provincial Legislation Act 94 of 2004.
The National Assembly is competent to determine and control its own internal arrangements,
proceedings and procedures, and to make rules and orders concerning its business, with due
regard to representative and participatory democracy, accountability, transparency and public
involvement. In particular, members of the National Assembly are guaranteed freedom of
speech in the Assembly and its committees, provided that they adhere to the internal rules of
debate. For example, they are not allowed to use offensive or unbecoming language (such as
the statement by EFF MP Julius Malema on 19 June 2014 when he said that “the ANC
murdered Marikana miners”). Members of Parliament thus enjoy freedom of speech (within
limits) and are further exempt from civil or criminal liability for anything they have said or
produced before the Assembly or its committees.
Parliament and its committees are competent to summon persons to give evidence and submit
documents (in terms of sections 14-17 of the Privileges Act 4 of 2004). Parliament is also
entitled to enforce its own internal disciplinary measures for contempt of Parliament and other
infringements of the Act; failure to comply with an order or decision of Parliament; failure to
submit documents upon request; perjury; et cetera.
The case of Speaker of the National Assembly v De Lille MP and Another is a relevant case.
Patricia De Lille stated (in Parliament) that she had information that 12 members of the
governing party had been spies for the apartheid government. When challenged she mentioned
eight names, some of which referred to people who were not members of the National
Assembly. The Speaker ruled that it was ‘unparliamentary’ to refer to some members of the
National Assembly as ‘spies’ and ordered her to withdraw her remarks, which she did. An ad
hoc committee of the National Assembly recommended that De Lille be directed to apologise
and suspended for 15 parliamentary working days. The National Assembly adopted this
recommendation. Aggrieved by the decision, De Lille challenged the constitutionality of her
suspension. The High Court (per Hlophe J) held that under a supreme Constitution, the exercise
of parliamentary privilege is subject to judicial review. The Supreme Court of Appeal upheld the
decision of the High Court by reasoning that section 58(2) of the Constitution expressly
guarantees freedom of speech in the National Assembly. The National Assembly therefore had
no constitutional authority to suspend De Lille. However, the Rules have since been amended
to provide the Speaker or Deputy Speaker with the authority to suspend a member for a period
of between five and 20 parliamentary working days.
3.2 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 the executive. (10)
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 argued 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. [20]
QUESTION 4
4.1 The epitome of constitutional democracy in action is judicial review, despite the fact
that it is perceived as being undemocratic. With reference to applicable constitutional
law principles and case law, 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 or executive. (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
as follows:
… 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 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.
4.2 With reference to the cases of Freedom Under Law v Acting Chairperson: Judicial
Service Commission and Others 2011 3 SA 549 (SCA) and Premier of the Western Cape
Province v Acting Chairperson: Judicial Service Commission and Others 2010 (8) BCLR
823 (WC) (Hlope case), comment on the significance of the rule of law and the principle
of legality and rationality when considering the role of the Judicial Service Commission.
Provide 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 into allegations of impropriety against Judge Hlope. (10)
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 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 7 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. [20]
QUESTION 5
5.1 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 listed in Part B of Schedule 5 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.
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. (10)
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 Liquor Bill 2000 (1) SA 732 (CC). In this case the Constitutional
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, the 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.
5.2 Two ratepayers, Simon and Thandi, live in the Durban 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
Durban area, and the rates based on those valuations. Simon and Thandi 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 Simon and Thandi 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 in your answer. (10)
[20]
One option is as follows: 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 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 and Others 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 invariably 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 and no
prospects of success.
An alternative (and equally strong) 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”.
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.
To my mind there is even a third option when answering this question and this is by using
the substantial measure test or the pith and substance test for Bills. Obviously the Local
Government Amendment Act will have an effect on the provinces within which the
municipalities are situated, thus it is important to determine whether the law was
appropriately tagged as a section 76 Bill or a section 75 Bill. Since there is invariably an
effect on the provinces with the adoption of this legislation, it should have been tagged as a
section 76 Bill whereby the provinces would have been informed of the proposed law and
been afforded an opportunity to debate it. This argument will be quite similar to the first
argument that I offered (above) because in terms of the pith and substance test, the Bill is
considered to determine the extent to which it substantially affects functional areas listed in
Schedule 4. The more it affects the interests, concerns and capacities of the provinces, the
more say the provinces should have on its content. Thus the provinces should have made
an effort to notify each of the municipalities of the proposed legislation so that
representations could be made before the law was enacted. Reference to the Doctors for
Life and Merafong cases would also be appropriate here. [20]