IURI 275 - Notes SU 1-11

IURI 275 C van Rooyen 071 472 9323
Study Unit 1: Introduction to the South African Constitutional Law:

The Constitution:
• Founding document of a nation from which the authority of state is derived from.
• Sets ground rules according to which a country must be governed.
• Also sets up structures of government (legislative, executive and judiciary)
• Authorises and regulates the exercise of power by the elected branches of
government -place limits on their exercise of such power.
What is Constitutional law?

The group of public law rules that regulates the:
• establishment of the state;
• the nature, composition and functioning of the most important organs of state, their
mutual legal relations; and
• the general legal relationship between the state and its citizens.
What is a ‘state’?
The legal definition:
• The State is a juristic person, consisting of people (citizens), within a geographical
area which belongs to the State.
• There exists a public legal order that is maintained by governmental organs of the
state which authority is vested in the law.
• A State can take on a variety of forms, such as a monarchy, a republic, a unitary

state, a federal system, a dictatorship, etc.
• Elements of the legal definition:

A determinable community or citizenry,
Determinable state territory,
A communal legal order system,
Effective government / structures of government bearing authority,
and
Independence from other States:
i.e. it defines itself as a State, and other States recognise it as a State.
The sociological definition (Max Weber):

• The State is a human community that (successfully) claims the monopoly of the
legitimate use of physical force within a given territory.
1
QUESTION:
Suppose American businessmen bought large tracts of farmland in the Northern Cape and North-
West, on the Botswana border. A few thousand American men, women and children have settled
there over years to work for the owners. At a meeting these settlers and owners unanimously decide
that they no longer want to be subject to South African rule, pay SA taxes, or abide by SA laws
(particularly those on mineral rights). The meeting declares that a separate state, New New-York, is
called into being, to be governed by the rules to be determined by the land owners.
Is New New-York a state?
ANSWER (Method):
→ Does New New-York have a determinable community or citizenry?
→ Does it have a determinable state territory?
→ Does it have a communal legal system?
→ Does it have effective government / structures of government bearing authority?
→ Does it enjoy independence from other states?
***Is it recognised as a state?
(By its own laws, and in terms of International Public Law and other states’ views?)
What is a society?
• A society is a group of individuals who resides in the same social territory and who is
subject to the same political authority.
• Societies are characterised by the social interaction between the individuals who
share a distinctive culture.
What is law?
• Refers to a system of rules, customs and practices that are recognised as binding in
a community.
• It is a system of rules that regulate behaviour- created and enforced by government.
• Importance of the law:
Law sets the standards for acceptable and unacceptable behaviour.
Law provides access to justice.
The law ensures safety to all citizens.
Protects individual rights against the abuses of other people, organisations and
the government.
2
The historical development of South Africa as state:

• When discussing the historical context out of which the moderns democratic state of
South Africa emerged, it is difficult not to revert to colonially imposed markets.
REASONS:
Pre-colonial history was never written down.
There is insufficient clarity about the governing structures through which pre-colonial
indigenous populations of South Africa governed themselves.
Current borders of South Africa came into existence only in 1910.
The Pre-Union Developments:

• A number of centrally governed societies emerged in the area now known as South
Africa from the 17th century onwards.
• In Cape and Natal colonies, constitutional development mirrored those of other

British colonies.
• In the 19th century, systems developed that allowed locally elected executives to
govern these territories developed- British-appointed Governor-General power had to
approve legislation.
• Governor-General had a veto power (power to say no or to stop an official action)

over Bills that could be exercised on the advice of the British government (could
disallow bills passed by the colonial legislatures).
• GOVERNING SYSTEM:
The governance structure mirrored the Westminster system of Britain.
These governing structures established the principle of the supremacy of the

legislature on South African soil.
Legislature therefore could pass any legislation it wished as long as it followed the
correct procedures.
Courts could not test the laws passed by the legislature against a Bill of rights and
could also not declare legislation invalid even if it infringed on the rights of citizens.
3
1. Boer Republic:
• To the North of the Cape, 2 Boer Republics (Orange Free State and Transvaal
Republic) emerged in mid-19th century.
• They rejected the Westminster system.
• GOVERNING SYSTEM:
Boer Republics created a system of governance based on the separation of
powers doctrine with directly elected presidents.
Orange Free State had a Bill of Rights that ensured rights to peaceful assembly,
petition, property, and equality before the law.
Orange Free State's constitution allowed for the review of legislation by courts,
however, it was only used once.
The protection in the Constitution were limited because it was reserved for white
males only.
In the Transvaal the Constitution was blatantly racists- people desire to permit no
equality between coloured people and white inhabitants either in Church or
State'.
1892- Chief Justice (CJ) JG Kotze attempted to review and strike down legislation
passed by the legislature in conflict with the Constitution (rejected by President
Paul Kruger).
2. Chiefdoms:
• The parts of South Africa that were not directly colonised, implemented indigenous
governing structures based on the concept of chiefdoms.
• The chief and his headmen formed a council and below them were family or kraal
heads.
• Role of chief:
Adjudicate disputes fairly;
Provide for the well-being of his people by applying a living customary law.
3. The British influence on indigenous governance:

• As the colonial dominance of the British grew, the indigenous governance structures
and customary powers of traditional leaders remained mostly intact.
• As colonial governments expanded their territories, indigenous South Africans were

subjected to the authority of the colonial powers.
• Colonial governments became the main source of the traditional leader's authority.
4
4. The Glen Grey Act:

• Glen Grey Act was passed in the Cape Colony in 1894.
• The Act prohibited the vast majority of Africans from participating in the Cape
Parliament.
• Effects:
The Act weakened the authority of the system of chief's by replacing them with a
system of government- appointed district councillors.
The Act established separate reserve areas where Africans had to stay if they
were not selling their labour to white-owned institutions in cities and towns.
The Act sped up the eviction of indigenous people from their lands.
The Act assigned certain areas for black people and others for white people.
• The Glen Grey Act can be considered as the beginning of more segretory and
apartheid measures.
5. The Native Affairs Commission:

• In 1903- the Native Affairs Commission developed a vision of a South African union
based on the territorial segregation of black and white people.
• Commission supported the establishment of 'native reserves'.
• ‘Natives’ were considered to have special rights to these reserved lands as the
ancestral land held by their forefathers.
• ‘Native reserves’ were governed communally by tribal chiefs who transferred their
sovereign rights over land and their political authority to the Crown through a
process of ‘peaceful annexation’- was a myth created by colonial rulers to satisfy
their interests.
5
The Union of South Africa and the bifurcated state:

• Anglo Boer-War (1899-1902):
After the British defeated the Boer Republics in the war, South Africa was under the
influence of British government.
• Britain facilitated negotiations that led to the Union of South Africa in 1910 (black
citizens did not take part in these negotiations)
• This resulted in the adoption of the Union Constitution (South Africa Act):
This Act brought together the 4 settler colonies: Cape, Natal, Orange Free State
and Transvaal including all the indigenous groupings into a single unitary state.
The Act granted limited parliamentary democracy to the white minority (only men
could vote).
• Compromise allowed the Cape to retain limited voting rights of black citizens- did not
change the racists nature of the Union Constitution.
• Northern provinces completely barred black citizens from voting.
• African society was presented as 'traditional' and was governed by chiefs under the
racist 'protection' of the white government.
• The Union Constitution followed a Westminister-style parliamentary government (like

the British) = Parliamentary Supremacy.
• Union Parliament consisted of 2 houses: House of Assembly and Senate:

House of Assembly was directly elected by the limited number of male citizens
who had the right to vote.
Members of the Senate were partly indirectly elected by the House of Assembly
and partly nominated.
• South Africa was established as a unitary state (state governed as a single entity)
rather than a federal state.
• However, the four colonies were retained as 4 provinces and each province had
equal representation in the Senate.
6
• Limitations on the sovereignty of the newly elected Parliament:
1. Until the British Parliament enacted the Statute of Westminster in 1931, it was
still bound by the provisions of the Colonial Laws Validity Act of 1865.
Meaning that the Union Parliament could not legislate extraterritorially or in a

way that will be contrary to any Act of the British Parliament applicable in
South Africa.
All bills enacted by the South African Parliament had to be referred to the
Governor- General (as the British Crown's representative) for access before
they could become law.
Little or no control was ever exercised, and the powers mentioned above
were never used before being repealed by the Statute of Westminster.
2. A few clauses in the Union Constitution required the use of a special procedure
by Parliament before they could be changed.
These entrenched sections protected blacks' limited franchise in the Cape and
the equality of the two official languages (English and Dutch).
The Union Constitution required that any amendment to the above sections
would be valid only if it was passed by both Houses of Parliament sitting
together and agreed by not less than two-thirds majority.
The National Party:

• The National Party won the parliamentary election in 1948.
• Objectives of the NP:

The NP sought to impose absolute racial segregation on South Africa.
The NP sought to remove coloured voters from the common voters roll, by
enacting the Separate Representation of Voters Act:
→ Harris v Minister of the Interior – The court held that the Act was of no force
since the correct procedure had not been followed to pass these
amendments.
→ Collins v Minister of the Interior - The legislative move in Harris v Minister of
the Interior was challenged again.
10/11 of the judges supported the amendments to the Union Constitution.
This brought an end to the limited voting rights of black citizens.
• Until partial reforms were introduced in 1983, only white South Africans
could vote in elections.
7
The Republic of South Africa, 1961:

• South Africa became a republic in 1961.
• A new constitution was adopted that confirmed the supremacy of parliament.
• Parliament had sovereign legislative authority and had full power to make laws in the
Republic.
• This form of parliamentary supremacy was believed to have brought about the
detriment to the respect for human rights.
• This gave South African state it brutal characteristic before the advent of the
democracy in 1994.
Laws adopted by the Union Parliament after 1910:

• After the Union of South Africa in 1910, the divided nature of the South African state
led to the adoption of several laws by the Union Parliament aimed at developing
legal mechanisms to further entrench indirect colonial rule.
1. The Black Administration Act:

▪ This act reaffirmed the rule of chiefs inside "reserves" but
subordinating it to the power of the "white" government.
2. Bantu Authorities Act:

▪ This act establishing a system of homelands.
▪ The system separated South Africa into several "self-governing" areas,
with each ethnic group having its own homeland.
▪ People classified as 'coloured' or 'Indian' were excluded from this
system.
The 1983 Constitution:

• In the late 1970's the apartheid state was under pressure as opposition and
resistance to apartheid and white minority rule increased, and the struggle by the
black majority increased.
• The apartheid government (Prime Minister PW Botha) opted for a ‘reform’ by
incorporating people classified as 'Indian' and 'coloured' under the apartheid system
into the democratic system.
• This resulted in the 1983 Constitution granting coloured and Indian people the right
to vote.
• The new constitutional system created:
3 Houses of Parliament: one for whites, one for Indians, and one for coloureds.
Each House was given authority to deal alone with its "own affairs." • 'General
affairs' were things that did not concern the individual.
The white minority government retained control of general affairs (things that did
not concern the individual) due to a clause in the Constitution stating that the
State President had the last say on whether an issue was personal or public
affair.
• Despite these "reforms," the African majority was excluded from the constitutional
system.
8
• In 1990, FW de Klerk removed restrictions on liberation movements such as the

African National Congress (ANC), the South African Communist Party (SACP), and the
Pan Africanist Congress (PAC), and ordered Nelson Mandela and other liberation
leaders to be released from prison.
• This is when the negotiations begun.
The transition to democracy: (The run-up to the first democratic election)

The first milestone:
• The adoption of the Freedom Charter.
• The Charter contained claims and expressed the aspirations of South African citizens
oppressed by the apartheid state.
• It was written in the format of a rights charter with a strong emphasis on non-
racialism.
• The Charter is seen as one of the foundational texts of the human rights culture,
which eventually found expression in South Africa's 1996 Constitution's Bill of Rights.
The second milestone:

• When the ANC presented its "Constitutional Guidelines for a Democratic South Africa”
in 1988.
• The Guidelines indicate that "the constitution must include a Bill of Rights based on
the Freedom Charter."
• Such a Bill of Rights must protect the fundamental human rights of all people,
regardless of race, colour, gender, or religion, and must provide appropriate
mechanisms for enforcing those rights.'
• This enhanced the ANC's status as the main liberation movement.
• This urged the apartheid government to foster negotiations to abolish apartheid, and
to build a new constitutional system built on democratic ideals.
Negotiations for a democratic society:

• In the 1980's, it became manifest to most people that our country was heading for
disaster unless conflict was reversed.
• Tentative and highly secretive talks between members of the African National
Congress (ANC) and National Party (NP) commenced in mid-1980.
• When FW de Klerk became president in 1989, he was able to build on the previous
secret negotiations with the imprisoned Nelson Mandela.
• The first significant steps towards formal negotiations took place in February 1990,
with the unbanning of the ANC and other organisations such as the Pan Africanist
Congress (PAC), and the release of Nelson Mandela and other liberation leaders from
prison.
• Exiled leaders of the ANC and the PAC returned to South Africa and eventually
negotiations about the transition to democracy commenced.
• The negotiating process was not without its difficulties as the major political parties
had very different visions about the transition to democracy.
9
CODESA, the MPNF and the two-stage transition:

CODESA, the MPNF and the two-stage transition:
• 1991: The Convention for a Democratic South Africa (CODESA) convened and was
tasked with drafting the Interim Constitution.
• The CODESA was preceded with intense negotiations, particularly between the NP
and the ANC, to try to reach an agreement.
• The Declaration of Intent signed when the CODESA was set in motion on 21
December 1992 –recorded a common view that the new constitution would ensure:
A united, democratic, non-racial, non-sexist state;
Constitutional supremacy and impartial judiciary;
Multi-party democracy and regular elections;
Separation of powers between legislature, executive and judiciary with checks
and balances;
Acknowledgment of diversity of languages, cultures & religions;
Universally accepted human rights, freedoms and civil liberties including religion,
speech, assembly protected by a justiciable BoR and legal system that
guarantees equality before the law.
• June 1992: Negotiations stalled when ANC walked out in protest at the slow pace of
progress and the CODESA was replaced by the Multi-Party Negotiating Forum
(MPNF).
• 1993: MPNF adopts the interim Constitution that was later ratified by the apartheid
Parliament.
• There were different views about transition towards democracy:

On the one hand: The ANC was committed to drafting of a constitution by a
democratically elected body and formation of a majority government.
On the other hand: The NP favoured drafting of the final constitution by the
unelected MPNF, followed by a long transitional government with power sharing
among most popular parties.
The ANC and NF reach a compromise model for the transition to democracy = A 2-
stage transition from the apartheid stage to a democratic stage rather than outright
transferral of power from old order to new.
Stage 1:
The unelected negotiating parties at MPNF negotiated the Interim Constitution which
was adopted by the apartheid Parliament in terms of the 1983 Constitution and
which became binding immediately after the first democratic election of 1994. The
Interim Constitution provided for the establishment of national unity.
Stage 2:
Constitutional Assembly (CA) was to draft a final constitution after the first
democratic election (2/3 majority to adopt); to be certified by CC.
10
The Two-stage constitution-making process:

Interim Constitution: Final Constitution:
Negotiated before the first democratic Negotiated after the first democratic
election by unelected MPNF. election by the elected Constitutional
Assembly.
Contains power-sharing agreement allowing Does not provide for any formal power-
the ANC and the NP to share power for 5 sharing agreement- after the 1999 election
years and provide for the two Deputy the winner of the election governs the
Presidents- one from the ANC and one from country on its own.
the NP.
Contain 34 Constitutional Principles and Certified by the Constitutional Court as
provisions to regulate the adoption of the complying with 34 Constitutional Principles
final constitution, including provisions for after it was first rejected by the court and
the certification of the constitution by a send back to the Constitutional Assembly.
newly created Constructional Court.
Contains a Bill of Rights protecting all basic Contains an extensive Bill of Rights
human rights. protecting both civil and political as well as
social and economic rights.
Was the two-stage process undemocratic?

• Yes, despite the constraints placed on the CA, it could be argued that the provisions
of the 1996 Constitution more or less rejected the relative influence and power of the
negotiating parties in the CA.
• As the ANC was by far the strongest party in the CA, the large majority of provisions
of the Constitution most likely reflects its vision for a democratic society.
Drafting and adopting the final 1996 Constitution:

• 1994 elections – although the ANC won by overwhelming majority (62%); they did
not gain the required 2/3 majority to pass the final Constitution without the support
of other parties – more negotiation.
• A public participation programme and political discussions were launched to ensure

popular participation in the negotiating process- lead to popular acceptance of the
outcome reached.
• Generally accepted that the consensus that emerged, ultimately favoured ANC.
• The Constitutional Assembly adopted the final Constitution and submitted to CC for
certification.
• Various parties except ANC and PAC, lodged objections to text because it emerged
threw negotiations and parties were unhappy with some of the clauses in the draft
and hoped that the CC would refuse to certify the text for failure to comply with the
34 Constitutional Principles (CP).
11
• CC saw its task as measuring the text of the final Constitution against:
The 34 Constitutional Principles to determine if the text complies with those
principles. Thus, the principles need to be interpreted holistically and not too
technically rigid.
The CC evaluated the text in two distinct ways:

→ Structure of the text: whether basic structures and premises of text where in
accordance with CP – CC held that did comply.
→ Details of the text: the CC held that it was not compatible with the CP on 9
discrete grounds- CC set out how to be amended to comply.
• Therefore, the Constitutional Assembly was found to have adopted an

unconstitutional constitution and the Assembly had to amend the text to comply with
the CC’ judgement.
• Although the constitution was adopted by a democratically elected body

(Constitutional Assembly), the CC had the final say of whether the provisions
complied with the Constitutional Principles negotiated by the unelected MPNF.
• The CA amended the constitution as required by the CC judgement.
• The CC finally certified the amended draft of the constitution in Certification of the
Amended Text of the Constitution of the Republic of South Africa, 1996, the Second
Certification Judgement, as being complaint with the 34 Constitutional Principles in
December 1996.
• On 10 December 1996, President Nelson Mandela signed the final Constitution, and it
came into effect on 4 February 1997.
The transformative nature of the Constitution:

• The Constitution is said to be transformative:
The Constitution assists in transforming society in the public and private
spheres.
The Constitution attempts to transform society from one ‘divided by a racist
and unequal past’ into one based on democracy, social justice, equality,
dignity and freedom- as referred to in the Preamble of the Constitution.
• 6 Transformative characteristics of the text:

1. Socio-economic rights and substantive equality.
2. Positive state duties.
3. Horizontality.
4. Participatory governance.
5. Multiculturalism and diversity.
6. Historical self-consciousness.
12
Interpretation of the South African Constitution:

• When interpreting the Constitution, we look at the provisions- should not be read in
isolation, instead: we should assume that the various provisions of the text are in
harmony with one another and should be read holistically.
• Textual provisions alone will not always provide a clear and definitive answer about
their meaning.
• Courts have to interpret and apply these provisions and through interpretation the
meaning of the Constitution will evolve over time.
• Con Court judges acknowledge the broad nature of the Constitution and the need to
refer to other sources in order to understand the meaning- it is not permissible to
use moral values to understanding of the constitutional text.
• The sources that the Con Court relies on in interpreting the constitutional
text includes:
Common law;
Judicial precedent;
The history of the drafting of the Constitution;
International law; and
Foreign case law.
• Court has also resorted to less traditional factors such as:

The surrounding circumstances of a case;
The social context of a case;
The economic, political, and social environment in South Africa; or
The general history out of which the Constitution was born.
Correct citation of the Constitution:

The Constitution of the Republic of South Africa, 1996.
13
Study Unit 2: Basic concepts of Constitutional law
Constitutionalism:
Constitutionalism is a “term” to describe:
• Various models, mechanisms and structures dealing with:
Distribution of state power.
Limitation of state and governmental power.
Binding rules to regulate government and those governed.
Nature of relationship between government and those governed.
Establishment of instructions of government.
• The term conveys the idea of a government that is limited by a written Constitution
(codified).
• Constitutionalism is about the idea that a constitution must structure and

constrain power:
A constitution must establish institutions and structures of government and
assign powers to them to effectively govern the state, but
It must impose limits on the exercise of power amongst the institutions and
structures of government to ensure that it will not be abused.
Descriptive and prescriptive understanding of Constitutionalism:

DESCRIPTIVE: PRESCRIPTIVE:
• Factual description of institutions • Identifying and prescribing norms
and structures of governance. and values on which constitutional
• Formalistic – focus on explaining the system should be based.
institutions and structures of • Demands that a particular
governance, distribution of power, constitutional system adhere to at
relation between then and limits on least the following values:
power. Separation of powers
• DOES NOT identify or describe Rule of law
normative values on which Democratic self-government
constitutional system based. Protection of HR
• SA pre-democracy Independent judiciary
14
Constitutionalism in South Africa:

1) Westminster constitutional model:
1910:
• Union Constitution established a colonial government tied to the British
monarchy.
• Adopted a Westminster style of government (originated in Britain) that:
- Was ruled by Parliamentary sovereignty- Parliament had sovereign
law-making power thus, the laws passed by parliament cannot be
undone by any organ of state except parliament.
- Had no Bill of Rights.
- Set no limits to the power of Parliament.
• Influence of Parliament (legislative arm of government) on the Executive

branch of government:
Parliament oversees executive: executive must account to
parliament how they exercise powers in doing government
things.
• Influence of Parliament the Judiciary (courts):

o Courts had no right to judicial review- cannot decide on the
constitutionality of legislation passed by parliament.
o This makes the courts institutionally less powerful than the
legislatures.
1961:
• South Africa cut ties with the British Commonwealth and adopted a Republican
Constitution (no monarch and creation of ‘state president’).
• S59 of 1961 Constitution still provided for parliamentary supremacy.
• Westminster system/parliamentary sovereignty used by apartheid government (NP)
as instrument to secure political power for white minority.
• The NP used parliamentary supremacy to create the many legal provisions that
discriminated against black South Africans.
15
2) Constitutional supremacy:
• Move from parliamentary sovereignty to constitutional supremacy.
• Section 2 of the Constitution provides that, the Constitution is the supreme

law of the Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled.
• Any law or conduct can be tested against the provisions of the Constitution
and must be declared unconstitutional and invalid if it does not comply with
these provisions.
• Any law is subject to judicial review: courts can declare any law or conduct
inconsistent with the Constitution invalid.
• The values to the Constitutional system:

Section 1 of Constitution states that:
The Republic of South Africa is one, sovereign, democratic state
founded on the following values of:
(a) Human dignity, 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, regular elections and a multi-party
system of democratic government.
• Section 1 confirms that the South African Constitutional system is not only
DESCRIPTIVE but PRESCRIPTIVE.
• These values set out the foundational values on which the current
constitutional system is based- a break from the past and established the
foundation of a new society.
• The South African Constitution doesn’t only set out rules that place limits on
governmental power = also expresses itself on the ideals and characteristics
to which society aspire to.
• “Federalism”:
• The Constitution provides for a quasi-federal system:
All 3 spheres of government must work together to achieve
the vision of the Constitution (E, L and J).
There is a co-operative relationship between 3 spheres (levels)
of government (National, provincial and local) share
responsibilities in an interdependent manner.
Entrenched provision – can only be amended with special procedures & majorities.
16
Separation of Powers:
The purpose and principle of separation of powers (Trias Politica):
• Constitutional restrictions on the exercise of public power can be both procedural
and substantive:
- Substantive: justiciable BoR; constitutional commitment to other
values (eg. RoL)
- Procedural: separation of powers doctrine.
• Constitution seeks to limit the exercise of power threw the separation of powers
doctrine.
• The separation of powers doctrine seeks to limit the powers of each branch of
government: Legislature, Judiciary, Executive- prevents the abuse of power by
different spheres of government.
• Constitution makes no express mention of the separation of powers (but CP VI in

interim Const).
• The separation of power safeguards political liberty & protects human rights.
• 4 Principles of the Separation of powers:
1. Division of governmental power (tria politica): across 3 branches of government

namely, legislative branch (Parliament), executive branch (President/Prime Minister and
Cabinet) and judiciary branch (courts).
2. Separation of functions: provides specific responsibility to each branch to prevents

one branch from taking the responsibility for the tasks allocated to another branch.
3. Separation of personnel: each branch must have assigned specific persons who are
responsible for the performance and execution of the branch’s function.
4. Checks and balances: one branch can be held accountable by other branches to check
the exercise of power by that branch.
17
Separation of powers in South Africa:

1. The legislature:
• Separation of powers doctrine provides a separate legislature with its own
personnel in order to exercise its power independently from the other
branches.
• Parliament has National legislative authority and consists of National
Assembly (NA) and National Council of Provinces (NCOP).
• Chapter 4 of Constitution provides for the extent of the exercise of power of

the legislature:
The legislature has the power to make laws, this includes amending
Constitution, making ordinary laws, delegate legislative powers.
Parliament must act in accordance with the limits of the Constitution.
Constitution empowers both members of the NA and delegates of the
NCOP to regulate their own processes.
• The Constitution does not provide for a strict separation of powers between
the legislature and executive and makes provisions for the involvement of the
executive in the performance of legislative functions.
Thus, the executive (Parliament) can enjoy law-making powers.
• Overlap in personnel between executive and legislature:

Excluding the President and 2 members of Cabinet, all other members of the
executive are also required to serve as members of the NA- there must be
appropriate checks and balances between branches.
2. The executive:
• The executive is responsible for developing, preparing and implementing
national policy and legislation as well as co-ordinating the functions of state
departments and administration.
• Chapter 5 of Constitution vests executive authority in the President (who is
Head of State and head of National Executive).
• The President is bound to uphold and defend the Constitution as the supreme
law of the Republic.
• The President exercises executive authority with Cabinet (Deputy President
and Ministers) and can appoint and dismiss other members of Cabinet.
• The Constitution requires the President to select all but two members of the
Cabinet from the National Assembly.
• The Constitution give the NA the power to remove or recall the executive.
• These powers give the NA the powers to remove the entire Cabinet or only
the Deputy President and Ministers by a way of vote, by a majority of the
members.
• The Constitution permits the NA to remove the President by way of a 2/3
vote by members where the President is found to have violated the
Constitution or the law, engaged in serious misconduct or when she or he is
found to be no longer able to perform his or her functions of office- power of
impeachment.
18
3. The judiciary:
• Unlike the relationship between the executive and the legislature, there is an
absolute separation in personnel and powers between judiciary and other 2
branches – Bedrock principle.
• Chapter 8 of Constitution provides for the extent of the exercise of power of

the judiciary:
Hierarchy of courts consisting of the CC, SCA, HC and Magistrate's
courts).
CC – apex court in all matters.
• The primary functions of the courts:

1. Adjudication of legal disputes including those that require the
interpretation and application of the Constitution.
2. Courts have the power of judicial review: courts can declare any
law or conduct inconsistent with the Constitution invalid.
3. Courts have power to check the exercise as well as the abuse of
power of other 2 branches.
4. The Constitution makes provisions for judicial review in the
following ways:
The Constitution provides for the appointment of
judges.
The Constitution provides for judicial independence:
courts must be independent and impartial and when
applying the law that they must do it without fear,
favour, or prejudice.
The Constitution prohibits interfering with the
functioning of courts.
The Constitution places a positive duty on organs of
state to takes measures that protect the courts by
ensuring their independence, impartiality, dignity,
accessibility, and effectiveness.
***The Counter-Majoritarian Dilemma:

• The unelected judiciary is afforded the power of judicial review and can declare laws
made by democratically elected members, unconstitutional.
• The question is why the decisions of a few unelected judges carries more weight
than decisions by the executive (that is elected by society)- referred to as the
counter-majoritarian dilemma or difficulty.
• The essence of the dilemma is that judicial review involves the courts making
decisions on undemocratic decisions that often go against the will of the people.
19
The Rule of Law:

• The rule of law states that no one is above the law (the value is found in section 1 of
the Constitution).
• According to Dicey, an advocate for the principle, the rule of law comprises three
main principles:
1. The law is supreme- thus, public power can only be exercised in terms of
authority given by law and no one may exercise public power in their
own.
2. Everyone is equal before the law- thus, law must be applied equally to all
persons regardless of their status – all are subject to the jurisdiction of
the ordinary courts.
3. Courts are responsible for enforcing law of the land (common law and
statute) in a way that protects basic rights of all people.
Difference between a rule and a value:

Rule:
Things that you can directly test in court.

Rules can be tested.
Value:
Used to interpret the rules of the Constitution.

Values cannot be tested.
20
Democracy:
• Section 1 of the Constitution declares SA to be a ‘sovereign, democratic state’.
• The Constitution also set out the democratic values of SA, namely ‘universal adult
suffrage, a national common voters roll, regular elections and a multi-party
democratic government’.
• The idea of democracy is linked to the notion that the will of the people should
prevail, and that people should have a say in how they are governed.
4 different understandings of democracy:

1. Direct democracy:
• Direct participation of the citizens rather than elected representatives in the
rule and decision making of their political community.
• Direct democracy examples in modern (liberal democratic) state are not
common because most decisions are made by elected representatives in the
legislature and not the citizens.
• The Constitution makes no reference of direct democracy in its text.
• It can be found in provisions that recognise and guarantee mechanisms for
citizens to act directly in influencing decisions.
• For example, the right to protest- all citizens are free to make their views
known and to influence decisions affecting them, as long as they do so
unarmed and maintain the peace.
2. Representative democracy:
➢ System where members of a political community participate indirectly through
elected representatives, in the governance of their community.
➢ Citizen elects representatives who govern on their behalf for a limited period
of time until the next election.
➢ Governance is too complex to take account of each citizens viewpoint on
decisions that affect them.
➢ Political parties act to represent the interests of their members who will share
a common agenda or vision.
➢ For example, the right to vote- citizens vote for a political party that make
decisions on behalf of the voters.
3. Participatory democracy:
• Concerned with ensuring that citizens are given an opportunity to participate
or be involved in decision-making on matters that affect their lives.
• Adds a participation element to representative democracy in that seeks to
ensure that while citizens may have an elected representative, that they are
not excluded from the decision-making process in matters that affect them.
• The Constitution places legislatures under duty to facilitate public involvement
in their legislative and other processes.
21
4. Constitutional democracy:
• South Africa's conception of democracy is multifaceted.
• South Africa is defined as a constitutional democracy- a political system in
which decisions are made by a specific political community in accordance with
a constitution.
• This constitution specifies the terms and conditions under which such a
democratic vision can be achieved.
• Constitutional democracy is more than the sum of its parts, as it includes
direct, representative, participatory, deliberative, and majoritarian forms of
democracy.
22
Study Unit 3: National Legislature

Three branches of government:
1. Executive
2. Legislature
3. Judiciary
The function of the legislative authority (Parliament):

• Articulating aspirations, concerns, and desires of all South Africans, especially the
poorest and most vulnerable.
• Ensuring accountability of executive organs of state in national sphere.
• Oversight of the exercise of national executive authority and especially authority
to use state resources and spend public money.
• Considering, passing, amending or rejecting legislation on any subject within its
legislative authority.
In terms of the Constitution, the legislative authority-

1. Of the national sphere of government is vested in Parliament, as set out in section 44 of the
Constitution.
2. Of the provincial sphere of government is vested in the provincial legislatures, as set out in
section 104 of the Constitution; and
3. Of the local sphere of government is vested in the Municipal Councils, as set out in section
156 of the Constitution.
23
Structure of Parliament (section 42):

Parliament
(National
legislative branch)
National Assembly National Council of

(NA)- dominant Provinces (NCOP)
house
National Election:
Provincial Election:
The NA is directly elected
by citizens who vote for The Provincial legislatures are directly
their political parties elected by citizens who vote for the
during the national provincial legislatures during the
election. provincial election.
The NA elects the The elected Provincial legislatures from

President. all 9 provinces, send 10 members to the
NCOP (=90 members). Thus, the NCOP
Consists of 400 delegates are indirectly elected by
members provincial legislatures (citizens do not
vote for NCOP members).
Consists of 90 delegates
Bicameral system (two houses).

Function of bicameral system:
- Ensures democratic representation of different interests of the people by the NA
and also the interests of the 9 provinces by the NCOP.
Each House represents different interests and so they act as a check on each other.
VERY NB:
• The National Council of Provinces is,
- One house of the NATIONAL
legislature (Parliament)
- But represents the provinces on
the NATIONAL level.
- And the PROVINCIAL legislatures
24
The NA is dominant because (section 42):

• Elects and can dismiss the President.
• Holds executive organs of state in national sphere accountable.
• Oversight of national executive authority, including implementation of legislation.
• Decisive role in various appointments.
The role of political parties:

• Nobody can become member of one of the houses of parliament unless they are a
member of a political party.
• You must make it onto the party electoral list following the party’s internal rules
(though these must be consistent with the Bill of Rights).
• Why are political parties so powerful in SA’s legislative system?

Four reasons:
The head of the executive is appointed by the majority party in Parliament.
Strict party discipline (MPs are subject to party leaders)
Parties in South Africa generally have a culture of internal party discipline.
The system in SA makes forces MPs to rely on the support of their parties –
MPs generally need to be on party lists to get elected, and the party can
recall and replace the MP.
General rules regarding the operation of Parliament:

• NA and NCOP empowered to control their own internal proceedings.
• Constitution empowers NA and NCOP to make joint rules and orders about the joint
business between the 2 houses (s57/s70).
- Economic Freedom Fighters v Speaker of the National Assembly 2018
• Both houses can also make rules separately about their operations.
• Rules that clash with Constitution can be declared invalid by court.
What are the powers of Parliament?

✓ NA- Section 56
✓ NCOP- Section 69
What are the privileges of members of Parliament?

• NA- Section 58
• NCOP- Section 71
- Speaker of National Assembly v De Lille MP 1999
- Democratic Alliance v Speaker of the National Assembly 2016
25
Public involvement, openness, and transparency:

NA- Section 59
NCOP- Section 72
- Doctors for Life International v Speaker of the National Assembly 2006
- PRIMEDIA Broadcasting v Speaker of the National Assembly 2017
- Public involvement is an integral part of the legislative process – if there is no
involvement, the legislation is invalid.
The National Assembly (Section 46-59):

1. Composition (section 42):
• 450-500 members
• Electoral system:
50% of the votes equals close to 50% of the seats.

The first 200 names on the party’s electoral lists would then be
appointed to the NA. (Parties themselves decide on the lists and
order.)
“Closed-list” system – voters cannot alter the order of the lists.
• Compare the composition of the NA and NCOP (Section 60):

• Let’s say that 5 less-populous provinces vote for the Purple Party, which then
has the majority in the NCOP.
• But the Orange Party has the majority of votes in the 4 more-populous
provinces, and so the Orange Party has the majority in the NA (which roughly
reflects the “popular vote” for the whole country).
• Each House would be controlled by a different party.
2. Eligibility for election (section 47):

• Anyone who can vote for the NA can become an MP, unless you are:
A paid state worker (except eg Ministers)
A permanent member of the other House of Parliament, provincial
legislature or municipal council;
An unrehabilitated insolvent;
Declared to be of unsound mind by a court; or
Someone who has been convicted of an offence and sentenced to 12
months imprisonment without the option of a fine (except where an
appeal is pending, or five years have elapsed after the sentence has
been completed)
26
3. Duration (section 49):

• Elected for five years as a fixed term- implies regular elections.
• In what two situations could an election be held before the 5-year term has
elapsed? (s49-50)
4. Decisions/quorums (section 53):

• President and Cabinet Ministers and Deputies may attend and speak in the
NA but may not vote (section 54).
5. Practical functioning:
• NA controls its own arrangements/proceedings and rules with regard to
representative and participatory, accountability, transparency and public
involvement – s51(1)(a) and (b)
• The Speaker presides over the NA (s52) – with the impartiality expected of a
judge.
• Public meetings are held in the NA where MPs can ask questions of the
Cabinet; the President, Cabinet and MPs also make speeches in the NA; and
political parties debate issues.
What is the impact of political parties on the legislature’s role in holding the
executive accountable?
• The head of the executive (the President) is the leader of the majority political party
in the NA.
• The majority party in the NA will try and fulfil the role of the President as he is the
leader of the majority party- the executive influences the decisions in the NA.
Requirements for passing of Bills?

• Both Houses of Parliament can introduce Bills.
• Both Houses of Parliament must facilitate public participation- Doctor’s for Life
International v Speaker.
• Bills are normally prepared by the applicable state department and approved by
Cabinet before it is tabled in Parliament.
• Any Bill (except money bills) may be introduced in the NA by:

Minister or deputy minister;
Any committee of the NA; and
Any MP
• Money Bills may only be introduced by the Minister of Finance.
• Bills can also be introduced in the NCOP if they affect provinces:

By any committee of the NCOP or
By any member of the NCOP
• All Bills passed by the NCOP MUST be referred to the NA.
27
• Bills passed by the NA have to be referred to the NCOP if required.
• President must assent to and sign all Bills passed (section 79 of the Constitution)
• If there needs to be amendments made to the Bill the President must either send it
back to Parliament or refer it to the Constitutional Court.
• If CC decides Bill is constitutional, the President must sign it.
• The President does not have the power to veto (invalidate) a Bill- he can either send
it back to Parliament for amendments or refer it to the CC, but if the CC states that it
is constitutional, the President must sign it.
• Section 81: once a Bill has been signed and assented to it becomes an Act that must
be published.
• The Act comes into effect on date published in gazette or date specified.
• Section 82: the signed copy of an Act is the conclusive copy and is kept at the
Constitutional Court.
Different types of Bills:

1. Constitutional Amendment Bills- Section 74
2. Ordinary Bills not affecting provinces- Section 75
3. Ordinary Bills that affect provinces- Section 76
4. Money Bills- Section 77
“Tagging”:
“Tagging” takes place on the national legislative level (i.e. in Parliament) to start
with; the question when “tagging” is whether to start in the NA or NCOP.
28
Study Unit 4: The Executive
The Executive consists of:

• President- Section 85(1)
• BUT the President must exercise this authority together with the rest of the Cabinet-
Section 85(2).
• Cabinet consists of- Section 91(1):

President (as head of the Cabinet /national executive);
Deputy President; and
Ministers.
Terminology:
1. State:
• An organised political entity occupying a certain territory.
• Includes ALL branches of State.
• The State DOES NOT change when a new government is formed, or new
party elected.
2. Executive Branch:
• Includes the national executive and the public administration.
3. National Government:
• Formed by the majority party in NA for limited duration.
• Governments change with elections (whereas public administration &
State remain)
• Temporary bearer of state or political authority.
4. National Executive:
• Consists of the President, Deputy President and rest of Cabinet.
5. Public Administration:
• Officials who do government work, implementing the decisions of the
executive.
• For example: Employees of government departments & other organs of
state (eg Eskom, public schools, etc)
6. Public Service:
Persons who work for national/provincial government departments.
Thus, excluding organs of state.
29
The President (CHAPTER 5):

The President:
• NB! The President “wears two hats”- Section 84
• The President is both:

Head of State.
Head of the national executive
• As head of state, the President:

Doesn’t need to consult with Cabinet.
Can’t ‘abdicate’ (delegate) that power to another.
The President can and generally should still consult when acting as head of
state, but the final decision is the President’s
• How to distinguish if the President is acting as head of the State or head of the
Executive:
If the President is exercising political discretion, the President is usually acting
as head of the national executive;
If there is no political discretion, the President is usually acting as head of
state.
Look at the function and powers:
o Head of the State- Section 84(2)
o Head of the Executive- Section 85(2)
Election of the President- s86:

The National Assembly elects on persons as President (head of state AND head of
national executive).
This is done at the first sitting of the National Assembly, after the national election.
President then appoints members of cabinet who govern country for term of NA
(usually 5 years).
Election must be at time & date determined by CJ (within 30 days of vacancy).
Upon election, the President ceases to be member of NA and swears and oath of
affirmation- Section 87.
NB: The President must serve the entire Republic, not only his party or
those who elected him!
• Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA
580 (CC) para 20.
30
Term of office of the President- s88:

• May not serve more than two full terms (10 years).
• BUT, if the President is elected to fill vacancy between elections, that period will NOT
count (can still serve an extra 2 full terms).
• For example, if a President is removed from office 2 years after he was elected and
he is replaced by a new President, the remaining 3 years does not form part of the
two full terms- the President will then serve 13 years.
• How is the President elected?

The President is not directly elected by the voters, but indirectly by the majority
members in the National Assembly.
Thus, usually the leader of the majority party in NA will be elected as President.
On paper, the NA is more powerful than the President, as it can hold the
President accountable- but in reality, the President is the senior member of the
majority party in the NA (their boss) and would be removed from the political
party if they disobey their senior member.
The Removal of the President- s89 and s102(2):

• The NA can remove the President in one of two ways – a s89(1) “formal removal” or
a s102(2) “motion of no confidence”.
1. Section 89(1)- “formal removal” (or “impeachment”):

There are 3 steps:
• Before anything: a motion has to be tabled which states BOTH the factual AND legal
basis (e.g., “serious misconduct”) for the removal of the President- the motion is
NOT yet voted on.
A preliminary phase:
An independent panel is appointed to perform a preliminary section 89 enquiry.

This is to prevent vexatious or frivolous motions.
The panel must consist of “three fit and proper, competent, experienced and
respected South Africans, which may include a judge, and who collectively possess
the necessary legal competence and experience”.
The panel must work ONLY within the bounds of what the motion states.
The panel does NOT look for just a “prima facie” factual case; they must establish
whether there is “sufficient evidence” of one of the grounds of removal.
This is a high bar!
The two sides (the MP bringing the motion, and the President) must make their case
in front of the panel.
The Panel publishes a report to the NA- NA votes whether to adopt the report.
31
A committee phase (the factual step):
When the NA adopts the report the ad-hoc committee decides whether there are
factual grounds for the removal of the President.
The voting on the actual motion (the political step):
When the committee says that factual grounds for removal exists, the NA votes on
whether to remove the President or not.
The President then cannot receive any benefits from the office (e.g., loses pension), and
may not serve again in ANY public office.
Unless it was removal due to factual incapacitation (e.g., illness).
2. Section 102(2)- “motion of no confidence”
• Removal for purely political reasons.

• A request is made on the NA to adopt a resolution that they have no
confidence in the President.
• This resolution must be passed with a simple majority
(i.e. 50%+1 = 201 seats) of its members’ votes in the NA.
• United Democratic Movement v Speaker of the National Assembly

2017 (5) SA 300 (CC):
The Speaker claimed she did not have the power to allow a
motion of no confidence to proceed by secret ballot (ie with
anonymous votes to protect ANC NA members).
The Court ruled that the Speaker’s decision that she did not
have the power should be set aside, and said she should make
the decision again- stating that she had the power to do so.
Acting President- s90:

• Another office bearer (usually the Deputy President) will automatically act as
President when:
The President is out of country.
The President is unable to fulfil duties (e.g., illness).
There is a vacancy (due to e.g., resignation/death, successful motion of
no confidence or removed from office).
• The temporary vacancy is usually fulfilled by Deputy President, but if

unavailable the order of succession is (in order):
Minister designated by President.
Minister designated by other members of Cabinet.
Speaker of NA, until NA designates one of its other members
as acting President.
• The Acting President has all the same duties, responsibilities & powers etc as
the President.
32
Limits on exercise of Presidential power:

Political limits:
E.g., political parties / consequences.
For Example- the President cannot appoint any person that he likes.
Formal limits:
Specific procedures that have to be followed.
For Example- Appointing judges of HC – on advice of JSC.
Substantive limits:
Even if procedure is followed, decision must be consistent with the Constitution and rule of
law; must be in good faith and powers must not be misconstrued.
• Three Main Ways for Substantive limits:
1) Presidential exercise of power is limited by the BoR:

When exercising power, the President may not act (or fail to act) in manner that
would impermissibly infringe on rights in BoR.
2) Power must be duly authorised by the Constitution:

Power must be sourced in the Constitution or other valid law.
President cannot act lawfully unless authorised to exercise specific power by the
Constitution or other valid law (explicit or implicit)
Parliament cannot delegate its own plenary legislative authority to the President (can
delegate power to issue subordinate legislation)- Justice Alliance of SA v President
2011 (5) SA 388 (CC) – power to extend term of office of Chief Justice explicitly
conferred Parliament could not delegate this power to the President.
3) Exercise of Presidential power must not infringe

legality:
When President (or other members of national executive) exercises any duly
authorised power, they must act RATIONALLY.
If their exercise of power is not rational, then it is unlawful.
Rationality is a very low level of scrutiny; it requires only a basic relationship/link
between means and ends.
In other words, a very basic link between a valid constitutional purpose and the valid
constitutional steps taken to reach that purpose.
Democratic Alliance v President of South Africa 2013 (1) SA 248 (CC).
The President must also act in good faith; and the President must not misconstrue
presidential powers (SARFU para 148).
33
Caveats (or pitfalls) to review of presidential power:

1. Litigants must avoid imprecise and open-ended citing of President
in litigation.
Must indicate precisely which conduct is attributable to the President and
falls foul of the Constitution.
2. The President is usually not required to give oral

evidence/testimony in person.
But in the SARFU case in 1998, a judge ordered the President (Mandela)
to appear in court and give testimony.
It was a big constitutional moment when the judge ordered Mandela to
appear in court, AND when Mandela accepted the judge’s order and did
appear in court.
Deputy President and Rest of Cabinet:

Appointment & removal- s91:
• President appoints & removes and assigns powers and functions to the Deputy
President.
• Deputy President must be appointed from NA.
• All but 2 members of Cabinet must be from NA (allows accountability to voters)-
Creates opportunity for President to appoint two Cabinet members with special
skills/knowledge, outside of the NA (ie potentially not politicians at all).
• They also retain their seats in the NA (unlike the President).
• Removal:
By President: s91(2)
President’s removal power is political, usually exercised with consultation

with party.
By National Assembly: s102(1)
Vote of no confidence in Cabinet (excluding the President).

Requires only a simple majority.
The President must then reconstitute Cabinet.
NA therefore forces President to fire ministers it has lost confidence in.
Different from s102(2) – where President AND Cabinet must resign.
Powers of Cabinet- s85(2):

• The Power of the Cabinet is not set out in the Constitution; but the Executive
authority is exercised by President with Cabinet.
• The Powers include:
Implementation of national legislation (except where Constitution or
legislation provides otherwise).
Developing and implementing national policy.
Co-ordinating the function of state departments & administrations.
Preparing & initiating legislation.
Other exec function i.t.o Constitution or national legislation.
34
Accountability of Deputy President and Ministers- s92:

▪ Members of Cabinet accountable individually to President for the powers and
functions assigned to them by him – s92(1)
→ One member of Cabinet can be held liable for decisions made by the Cabinet
member.
▪ Members of the Cabinet are accountable to Parliament both collectively and

individually for exercise of their powers and performance of their functions – s92(2)
→ When one member of Cabinet makes a decision the whole Cabinet is held
liable.
▪ The Cabinet is under the same limitations as those on the President as head of the
national executive (political, formal and substantive limits):
Exercise of powers must not infringe on Bill of Rights; and
Must not infringe principle of legality (rationality); must act in good faith and
must not misconstrue powers; must exercise powers personally.
▪ The power of the President is set out in the Constitution, but the powers of Cabinet
is authorised to them by the President- if the President does not give members of
Cabinet the authority to do something then they don’t have the power.
❖ Therefore, their powers must be delegated to them by the
President directly (eg in assigning a portfolio).
❖ OR must be derived from legislation that the President has
assigned to them.
▪ Ethical Conduct of Cabinet and Ministers: s96
35
Study Unit 5: Separation of Power and Judicial Authority:
What is Jurisdiction?
• Jurisdiction refers to the power or competence of a court to hear and adjudicate on,
and to determine and dispose of a legal dispute.
The Historical Legacy of the judiciary in South Africa:
Before 1994:
• Based on Parliamentary sovereignty- courts could not overrule Parliament and the
apartheid state had unlimited power in the judiciary and could make any decision
they wished.
• The power of judges is limited under parliamentary sovereignty.

Judges could not interpret legislation and legislation was modified only by the
apartheid legislatures.
The judiciary had to uphold discriminatory and unjust legislation because they
operated under parliamentary sovereignty.
The function of judges was to ascertain the intention of apartheid legislature
through the text of legislation and to give effect to that intention no matter
how cruel it was.
• The process of the selections of judges was made in secrecy and political factors
played a role in who was appointed as judges.
The judiciary consisted of almost only white males from privileged ranks.
Before 1990, only 1 white female had been appointed as a judge.
No black judges had been appointed.
• Before 1994 there was no Constitutional Court, and the Appellate Division (now
Supreme Court of Appeal) was the highest court in SA for all matters.
• The AD considered appeals from various Provincial Divisions of the Supreme Court
(now renamed as High Courts) which had their seats in the main urban centres
across SA.
• The Supreme Court (including the AD) and other specialised courts, made up the
superior courts.
• The lower courts consisted of magistrates’ courts which were divided into regional
and district courts.
36
1994-1996:
• The Interim Constitution was adopted.
• The Constitutional Court was created but is had a very limited role.
• The Constitutional Court would deal ONLY with constitutional matters, and the
Supreme Court could NOT deal with constitutional matters.
• The SCA was the court of final instance in non-constitutional matters.
1996-2013:
• The final Constitution was adopted.
• The SCA (and High Courts) can now also hear constitutional matters- but, in
constitutional matters, the Constitutional Court is still the final court of appeal.
• The Constitutional Court still can only deal with “constitutional matters”.
2013:
✓ The Constitution Seventeenth Amendment Act was adopted.
✓ The Constitutional Court is now the final court of appeal in ALL matters, even non-
constitutional ones only if it is of general public importance.
The Role of the Judiciary in the New Constitution Dispensation:

• The advent of democracy resulted in the independence of the judiciary and they are
free to interpret and apply the law impartially and without interference of other
branches of government- ‘the bastion of the legal order’.
• Separation of powers and checks and balances can only operate optimally if an
independent judiciary is empowered to enforce the provisions of the Constitution.
• The duty of the judiciary:

The judiciary has a duty to enforce the provisions of the Constitution and the
law, and to check the exercise of power by the legislature and the executive
to ensure they act within the boundaries of the Constitution.
The judiciary has a duty to respects the separation of powers doctrine and to
not unnecessarily interfere with the legislature and executive.
The judiciary must enforce the Constitution in a fearless way.
37
The Judiciary in the New Constitutional Dispensation:
The hierarchical structure of the courts (Section 166):

• Section 166 of the Constitution provides for a hierarchical structure of the courts.
• The structure is as follows:

(a) The Constitutional Court.
(b) The Supreme Court of Appeal.
(c) The High Courts, including any high court of appeal that may be
established by an Act of Parliament to hear appeals from the High
Courts.
(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
Courts or Magistrates’ Courts.
1. The Constitutional Court (Section 167):

• Headed by the Chief Justice (CJ) who is also head of the judiciary and Deputy
Chief Justice (DCJ) who severs as deputy leader.
• The role of the CJ:

Is to exercise responsible over the establishment and monitoring of
norms and standards for the exercise of the judicial functions of all
courts.
• The role of the DCJ:

The Deputy Chief Justice must perform functions of the CJ or any
other function the CJ may assign to them.
If CJ is absent, or office of CJ is vacant, the DCJ must perform the
functions of the CJ and Acting Chief Justice.
• Once the CJ and DCJ are appointed, they take their place alongside 9 other
judges (11 judges total) and has the same powers as any other judge of the
Con Court.
• The seat of the Con Court is in Johannesburg but, the CJ may allow it to sit
elsewhere in the country.
• Jurisdiction of the Constitutional Court- s167:

• The Constitutional Court is the highest court in the Republic.
• The Constitutional Court may decide on constitutional matters, if it
raises and arguable point of law and any other non-constitutional
matters that is of general public importance.
• However, the Constitutional Court cannot hear appeals based on
factual disputes- they can only hear appeals based on point of law.
• The Constitutional Court has the power to make the final decision on
whether a matter is within its jurisdiction (whether it can hear a
matter).
38
• The Constitutional Court has exclusive and concurrent

(shared) jurisdiction:
a) EXCLUSIVE JURISDICTION:
Only the Constitutional Court can hear matters under
section 167 (4) of the Constitution (refer to relevant
section)
b) CONCURRENT JURISDICTION:
Is where several courts exercise the same jurisdiction
for certain subject matter.
Its concurrent jurisdiction is exercised with the High
Courts and the Supreme Court of Appeal.
• Direct access – when can you go straight to the ConCourt?

In matters of exclusive Constitutional Court jurisdiction.
In all matters that are not exclusively reserved for the
jurisdiction of the CC- the CC functions as a court of appeal.
HOWEVER, section 167 (6) of the Constitution also allows
direct access to the CC, even in cases where it does not have
exclusive jurisdiction- where it is in the best interest of justice.
2. The Supreme Court of Appeal (Section 168):

• Was previously known as the Appellate Division.
• The SCA is headed by the President of the SCA and is assisted by the Deputy
President of the SCA.
• The role of the Deputy President of the SCA:

If President is absent, or the office of President is vacant, the Deputy
President of the SCA performs the functions of the President of SCA as
the Acting President of that court.
• The seat of the SCA is in Bloemfontein but, the President of the SCA may
allow it to sit elsewhere in the country.
39
• Jurisdiction of the SCA-s168:

• The Con Court and SCA have jurisdiction but, they do not have
jurisdiction over exactly the same subject matter.
• The Con Court has jurisdiction over all constitutional and

(theoretically) all non-constitutional matters, the SCA does not.
• This is because the SCA does not have jurisdiction over

matters that fall into the exclusive jurisdiction (only the CC
can hear these matters) of the Constitutional Court (Section
167 (4) of the Constitution).
• The SCA may be the final court of instance in non-constitutional issues

but ONLY if the Constitutional Court decides not to hear an appeal
from the SCA on the grounds of general public importance which
must to be considered by the Constitutional Court.
• The SCA will ONLY be the final court of instance for factual matters.
• 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.
3. The High Courts (Section 169):

• The HC acts as a court of first instance and hears appeals from lower courts.
• HC have geographically limited jurisdiction- they can only hear matters in
their geographical jurisdiction.
• Each division of the High Court consists of a Judge President and one or more
Deputy Judge President within the area of jurisdiction of that division.
• The role of the Judge President:

The Judge President leads his division and is responsible for the co-
ordination of the judicial functions of all magistrates’ courts in the
jurisdiction of that division.
• There are 9 High Courts in SA, one for each province.
40
• The jurisdiction of the HC- s169:

• The Constitution confers jurisdiction on the various High Courts in
respect of constitutional matters except:
Matters which the CC has exclusive jurisdiction; or
Matters assigned by an Act of Parliament to another court of a
similar status as the High Court.
• Any challenges to a provision including constitutional matters would

usually first be lodged in the High Court- court of first instance in
constitutional matters.
• If the High Court or later the SCA declares the legislation invalid, the
Constitutional Court must confirm this before such an order will have
any force or effect – section 172(2)(a)
• In these cases, no appeal to the SCA is required and no leave for

appeal need be sought from the CC.
• Where the HC does not find legislation invalid with the Constitution an
appeal has to be lodged by the party seeking and order to be invalid.
4. The Magistrates Courts (Section 170):

• Jurisdiction of Magistrate’s Courts:
Magistrate’s Court do not have the power to hear constitutional
matters.
Section 170 of the Constitution states that magistrate’s courts and all
other courts may decide any matter determined by an Act of
Parliament but, a court lower than the HC may not decide on the
constitutionality of any legislation or the conduct of the
President- because they have NO constitutional jurisdiction!
When an allegation that a law or conduct by the President is

unconstitutional and invalid is raised in a magistrates’ court, the
magistrate in question must continue and decide the matter on the
assumption that the law or conduct in question is valid.
If a litigant wishes to pursue the question, he or she must approach

the High Court.
41
5. Specialised Courts:
Superior specialist courts:
Labour Court;
Land Claims Court; and
Tax court.
Inferior specialised courts:

 Children’s Court;
 Maintenance Court; and
 Domestic Violence Courts.
The Independence of Superior Courts (HC’s and up):

• The independence of the judiciary refers to two ideals:
(a) IMPARTIALITY of the Judiciary:

Judges should interpret and enforce the law impartially and without any
bias- without fear or favour.
Judges should approach cases with open minds, without taking into
account their own personal views, ideological commitments or party-
political beliefs- should be neutral.
Judges can only operate impartially and to be truly independent if they
are able to operate independently from other branches of government.
(b) SEPARATE ROLE of the Judiciary:

Refers to the discrete role the judiciary has, separate from the interests of
the other government branches and political system.
Structural safeguards must be put in place to ensure that judges are
protected from the influence or interference by any other branches of
government.
42
Appointment of Judges:
• The Constitution created the Judicial Service Commission (JSC), who is involved in
the appointment of judges.
• The JSC plays a fundamental role in ensuring the independence of the judiciary.
• Section 178 regulates the JSC (read):

Consists of 23 members- s 178(1).
The chair of the JSC is the Chief Justice who is also the head of the CC- s
178(1)(a).
When JSC discuss matters relating to the HC:

→ When members of the JSC discuss matters relating to a specific
High Court, the Premier of the province together with the Judge
President of the province also sit in the Commission- s 178(1)(k)
→ If the Premier of the province is absent when the JSC makes a
decision regarding either the appointment or the disciplining of a
judge serving in that province, the decision of the JSC will be
invalid.
The Judicial Oath of Office:

▪ Before a South African judge takes office, he or swears or affirms:
- ‘to be faithful to the Republic of South Africa;
- (to) uphold and protect the Constitution and the human rights
entrenched in it; and
- (to) administer justice to all persons alike without fear, favour
or prejudice, in accordance with the Constitution and the law’.
▪ The oath requires each judge to decide a case without fear or favour, be neural,
impartial and uphold the law.
43
Security of Tenure:
• The independence of judges depends on a guarantee that judges will not be
dismissed from office for making certain decisions.
• The Security of Tenure implies:

1. Judges are appointed for a fixed term or until they reach a fixed age of
retirement.
TERM: non-renewable term of 12 years (CC)- unless and Act of
Parliament extends the term.
AGE: age of retirement is 75
They cannot be forced to retire before their terms end or until they reach
the prescribed age of retirement.
This means that a person who has been in active service on a High
Court or in the SCA for three or more years, will usually serve a fixed
term of 12 years on Constitutional Court.
This is unless the judge turns 75 before completing the 12-year term-
the judge will then retire when reaching the age of 75.
However, a judge who has not served on any other court before
appointment to the CC will normally serve a fixed term of 15 years on
that court, provided again, that he or she does not reach the age of
75 before the end of this 15 year period.
2. Secondly, judges can only be removed from office before the end of their tenure
after following a special procedure that entrenches their position.
Section 177 of the Constitution determines that a judge may only be
removed from office if the JSC finds that a judge:
(a) suffers from an incapacity;
(b) is grossly incompetent; or
(c) is guilty of gross misconduct.
Section 177 of the Constitution states that a judge cannot be removed for
political or other reasons other than his inability to perform his duties.
Once the JSC establishes such findings, the judge in question will only be
removed from office if the NA calls for it and adopt at least a two-thirds
majority vote.
Once the NA has passed this resolution, the President must remove the
judge from office.
The President has the power on the advice of the JSC, to suspend a judge
who is under investigation by the JSC.
44
Financial Security:
• If judges are not financially secure and if they believe they can be punished for
making an unpopular decision by having their salaries and other benefits reduced by
the state, their independence is threatened.
• The Constitution states that the salaries, allowances and benefits of judges may not
be reduced - Section 176 (3) of the Constitution.
Limitations of Civil Liability:

• Judges must be secure in the knowledge that they will not incur civil liability for what
they say or do in the course of carrying out their duties.
• Judges will only be held liable for defamatory statements if it is done out of spite or
unlawfully.
The National Prosecuting Authority:

• Section 179 of the Constitution.
45
Study Unit 6: The Chapter 9 Institutions:
What are the Chapter 9 Institutions (s 181):

1. The Public Protector - s182
2. The South African Human Rights Commission - s184
3. The Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities - s185
4. The Commission for Gender Equality - s187
5. The Auditor-General - s188
6. The Electoral Commission - s190
Functions of the Chapter 9 Institutions:
• The Chapter 9 Institutions share two roles:

(a) that of checking other branches – holding them accountable.
(b) contributing to the transformation of SA into a society where social justice
prevails.
• They are independent non-judicial institutions and do not play the same role as the
judiciary in enforcing the Constitution- they are NOT the judiciary!
• They are accountable to the National Assembly.
• FUNCTIONS:
They can make findings and recommendations.
They do NOT have the power to review and set aside legislation or the
actions of the executive.
They monitor the state’s realization of individual’s rights in terms of the
constitutional obligations.
They safeguard and promote democracy and can only do their work if they
are independence from the legislative and executive branches of government-
but they also rely on cooperation from the other branches, to get their work
done.
The independence of the Chapter 9 Institutions:

• Several provisions in the Constitution protect the independence of Chapter 9
institutions:
Section 181 (2): Guarantees the general independence of the Chapter 9
institutions.
Chapter 9 institutions are independent, and subject only to the
Constitution and the law (must be in line with the Constitution), and they
must be impartial and must exercise their powers and perform their
functions without fear, favour or prejudice.
Section 181 (3): Requires other organs of state to assist and protect these
institutions to ensure their independence, impartiality, dignity and effectiveness.
Section 181 (4): States that no person or organ of state may interfere with the
functioning of Chapter 9 institutions.
46
Appointment of members of the Chapter 9 Institutions:

• Appointed by the President.
• The President does not have discretion and must appoint members nominated by the
NA.
• The NA decides who is appointed to the various institutions.
• For the Public Protector and the Auditor-General:

Requires approval by at least 60% majority of members of the NA.
• For other appointments:

Requires approval by at least 50% majority of the members of the NA.
• Requirements for the appointment as a member of the Chapter 9 Institutions:

Must be a South African citizen.
Must be a fit a proper person.
Removal of the members of the Chapter 9 Institutions:

• Individuals cannot be removed from office for political reasons.
• They can only be removed from office on the grounds of:

(a) Misconduct
(b) Incapacity or incompetence (can ONLY be founded by the NA)
• If the NA removes a member of the Chapter 9 institutions on any other ground, they
can approach the court and the court can declare the removal invalid thus, the
member will retain their position.
• The process of removal of any of the Chapter 9 heads:

Preliminary stage- where the NA determines that one or more of the
listed grounds exist (factual enquiry- political considerations do not play a
role at this stage).
Once this condition is met, the NA has to consider whether removal is

appropriate- political considerations may play a role even if it is found that
the person is guilty of misconduct, incapacity or incompetence. The NA
may still decline to support his/her removal from office.
For the removal of the Public Protector or Auditor-General:

→ A resolution must be adopted with a two-thirds majority vote by
the NA.
For other removals:
→ Only requires a simple majority.
The President MUST remove the person from office (he cannot choose
not to remove the person).
47
The Public Prosecutor (s 182):

• The remedial power of the Public Prosecutor:
The remedial power of the PP is binding, but not in all cases.
Whether such remedial action is binding will depend on the nature of the
issue under investigation, the findings made, and the particular kind of
remedial action taken.
If the remedial action is phrased as a recommendation, it may not be binding.

o For example: The President SHOULD/MAY/CAN pay back the money.
If the remedial action is phrased as an instruction, it is likely to be binding.

o For example: The President MUST pay back the money.
When remedial action is binding, compliance is NOT optional, and the

remedial action taken against those under investigation cannot be ignored
without legal consequences.
• Remedial action of the PP is always open to judicial scrutiny.
• Those affected can approach a court to review and set aside the findings and
remedial action taken by the PP.
• PP must exercise his/her functions lawfully in compliance with his/her constitutional

duties.
• The findings and remedial action can thus be set aside on the grounds that they are
unlawful, vague or irrational.
• The PP must investigate a matter in a rational way and his/her findings and remedial
action must be rational.
• Findings and remedial action of the PP can also be set aside on the grounds that
they infringe the doctrine of separation of powers.
48
Study Unit 7: Multisphere government and traditional leaders:
Branches of government:
Legislature, Executive, Judiciary, (Chapter 9 Institutions).
WHY? - To enforce separation of powers.
Spheres of government:
National, Provincial and Local spheres.
WHY?- To regulate matters in within their own sphere.
DEFINITIONS:
1. Unitary government:
• One central government with all the power- can legislate on anything it wants.
• Example: small countries
2. Federal government:
• Several State/Provincial governments with the majority of the power, with some
powers transferred by them to a shared Federal Government.
• The States/Provinces can generally legislate on anything they want while the Federal
Government can only legislate on specific things within its power.
3. Divided federalism:
• Strict divisions between spheres, no overlap.
• Example: United States
4. Integrated federalism:
• Some allocations exclusively for some spheres, others are concurrent (ie shared).
• Laws made by the central sphere of government must be implemented and
administered by the provincial or local spheres of government.
• Example: Germany
49
Historical background:
Before 1994:
Before the end of apartheid- strong unitary system in SA.
President concentrated all power in himself.
National sphere of government had all power because the President abolished the
provincial spheres.
After 1994:
After apartheid- federal system in SA.
The current system is a result of political compromise.
Quasi-federal system of government:

→ Power was distributed vertically and horizontally.
→ There is some division between the spheres, with some exclusive power for
provinces, but the national government still has more power than a federal
government (provincial spheres).
Section 40 (1) of the Constitution provides that government is constituted as

national, provincial and local spheres of government which are distinctive,
interdependent and interrelated.
Division of powers between spheres of government:
The principles of co-operative government:

• In SA we have a co-operative government.
• The basic structure according to which power is divided:
(a) The nine provincial governments share the power to make laws (on certain
matters) with the national government.
o Schedule 4 of the Constitution sets out these shared or concurrent
matters that include matters such as education, the environment, health,
housing and policing.
(b) Where there are concurrent powers, the national and provincial government have
equal law-making powers.
o If the laws made by national and provincial government conflict with each
other, the national law will override the provincial law, but ONLY IF
the national law satisfies the criteria set out in section 146 (read section)
of the Constitution.
o The provincial law remains “in limbo”, and will revive if the national law is
changed.
(c) Provincial governments have exclusive power to make laws on matters set out
in Schedule 5 of the Constitution.
o BUT, Section 44(2) of the Constitution provides that the national
government may intervene and pass a law on a Schedule 5 matter.
50
(d) Local government can make by-laws for local matters.

o These local government matters are set out in Part B of schedule 4 and
Part B of Schedule 5.
o By-laws which conflict with national or provincial laws are invalid.
(e) If national government makes laws that fall into concurrent matters, they must
be implemented and administered by provincial and local government.
The primary role of provincial and local governments is the
implementation and administration of national laws.
(f) The national government has the plenary power to pass laws on any matter
not mentioned in Schedule 4 or 5.
• Due to the overlap between legislative and executive authority of the national,
provincial and local government, the Constitution makes provision for a system of
intergovernmental co-ordination to manage any potential conflict between the
various spheres exercising concurrent competences.
Intergovernmental co-ordination:
• In order to avoid conflict between the three spheres, the Constitution provides for
co-ordinating bodies.
• Some of these bodies are responsible for co-ordinating the legislative activities of the
three spheres and other the executive activities of the three spheres government.
The responsibility of co-ordinating the legislative activities= vested in the
National Council of Provinces (NCOP).
• The Intergovernmental Relations Framework Act (IGFRA) establishes co-ordinating

bodies.
• The provisions of IGFRA do not apply to conflicts between national and

provincial legislation- these conflicts are resolved in terms of the Constitution.
• The purpose of IGFRA is to facilitate co-ordination in various spheres of government.
• IGFRA imposes a direct duty to avoid intergovernmental disputes- this

involves taking reasonable steps both to avoid intergovernmental disputes and to
settle intergovernmental disputes that arise without resorting to judicial
procedures.
• The IGFRA prescribes various steps which must be followed as a prerequisite to

taking legal proceedings.
51
The division of legislative and executive power between the national and
provincial spheres:
1. The Provincial Sphere:
1) The legislative power of the provincial sphere:

South Africa is divided into nine provinces.
Chapter 6 of the Constitution sets the legislative and executive
function of the provincial sphere.
The provinces are required to fulfil at least three important functions,

which are:
(a) Provinces must provide a close link between voters and
their government to ensure that the government addresses
the particular concerns within the geographical areas.
(b) Provinces are required to implement national policies and
plans.
(c) Provinces must oversee the smooth running of the local
sphere of government within the boundaries of the province.
Each province is allowed to have a provincial constitution- but it

must be consistent with the Constitution.
The legislative authority of each province is vested in the provincial

legislature.
The provincial legislature has the legislative power to pass a provincial

constitution and to pass legislation for its province with regard to any
matter:
a. within a functional area listed in Schedule 4 (concurrent
powers with national sphere);
b. within a functional area listed in Schedule 5 (executive
powers);
c. if the national government assigns powers to the provincial
sphere.
d. if the Constitution implies that a provision be enacted by
provincial legislatures.
A provincial legislature may assign its legislative powers to a

municipal council in that province.
The legislature of a province may change the name of that province

by adopting a resolution with a supporting vote of at least two-thirds
of its members, requesting Parliament to change the name of the
province.
The provincial legislature are elected the same way as the members
of the NA.
52
The members of the provincial legislatures cannot be smaller than

30 and no larger than 80 members.
Permanent delegates of the NCOP are not members of the

provincial legislature!
However, such permanent delegates may attend and may speak in

their provincial legislatures and its committees but may not vote.
2) The executive power of the provincial sphere:

• The executive authority of a province= vested in the Premier of that
province.
• The role of the Premier mirrors that of the President at national level.
• Premiers do not have head of state powers but, there are some
similar “head of province” powers.
• The Premier exercises executive authority, together with other

members of the Executive Council by (exactly like President- refer to
powers of the President in SU 4):
(a) implementing provincial legislation in the province;
(b) implementing all national legislation in the functional areas
listed in Schedule 4 or 5;
(c) the administration of national legislation (not contained in
Schedule 4 or 5) which has been assigned to the provincial
executive in terms of an Act of Parliament;
(d) developing and implementing provincial policy;
(e) co-ordinating the functions of the provincial administration
and its departments;
(f) preparing and initiating provincial legislation; and
(g) performing any other function assigned to the provincial
executive in terms of the Constitution or an Act of
Parliament.
• Only if the provincial executive has administrative capacity to deal

with matters outside Schedule 4 and 5, can they deal with such
matters otherwise it will be referred back to the national executive.
• The Premier or a member of the Executive Council may assign any

power or function to a municipal council in that province.
• Premiers are elected by the provincial legislature.
53
• Premiers can also be removed in two ways:

(a) Section 130(3)- Premiers can be “impeached” for a serious
violation of the Constitution or the law, serious misconduct or
inability to perform the functions of office.
(b) Section 141- Premiers can be removed for purely political reasons
threw a motion of no confidence.
Determining legislative competence:

• The national and provincial sphere may not adopt legislation that falls outside its
legislative authority.
• Legislation passed by a legislature of a particular sphere may be challenged on the

ground that it does not fall into the legislature's authority.
• When such a challenge takes place, the court will have to determine
whether the legislature in question was competent to pass the legislation.
• There are two distinct issues that can arise whenever there is uncertainty
whether the legislature of one sphere of government is competent to pass
legislation on a specific topic:
1. First issue:
If it’s a Schedule 4 matter, there is concurrent competence between
national and provincial spheres, and if section 146 applies, the national
legislation prevails otherwise the provincial legislation prevails.
2. Second issue:
If it’s a Schedule 5 matter, the province has exclusive competence, BUT
the national legislature can still “override” in exceptional circumstances in
terms of section 44(2).
• The “pith and substance” test:

(a) Firstly, we need to know if Schedule 4 or 5 applies – and then determine the
effect of section 146 or 44(2) (depending on the Schedule).
(b) Secondly, once it is determined whether legislation falls within Schedule 4 or 5,
one must determine whether the relevant legislature was authorised to pass
the legislation in terms of section 44 (2) or section 146 of the Constitution.
• For example: Schedule 4 lists education. They each provincial legislatures pass
regulations about the pass mark for their matric exams, and they all pass different
marks. The national government passes a regulation that the pass mark for the
matric exam is 50%. Who’s legislation will prevail? Education is a Schedule 4 matter
thus they both have the power to make laws but, this matter contains a criterion
contained in section 146 that “the matter regulates the requirement of uniformity of
norms and standards etc”. The matric pass mark must be standardized across the
country; thus the national legislation will prevail.
54
Does the
section 146 Yes: national
exception legislation
Schedule 4: prevails
apply?
CONCURRENT
COMPETENCE
Yes: No: provincial

Schedule 4 or legislation
Are there laws prevails
from both 5 matter?
national AND Schedule 5:
(pith and
provincial PROVINCIAL
substance) Does the
spheres that EXCLUSIVE
section 44(2)
are valid, COMPETENCE
exception
applicable and Yes: national
apply?
conflicting? legislation
prevails
Neither Sch4 Unless eg

or 5: provincial
No: power No: provincial
Provincial legislation
No law- No legislation assigned by
conflict national prevails
probably not
authorised legislation
The local government:

• Section 151 states:
(a) The local government sphere consists of municipalities which span the entire
territory.
(b) The executive and legislative authority of a municipality is vested in its Executive
Council.
(c) A municipality has the right to govern, on its own initiative, the local govt affairs
of its community, subject to national and provincial legislation, as provided for in
the Constitution.
(d) 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.
55
• Objectives of local government:

The objectives of local government are set out in section 152 (1) of the Constitution.
These are:
(1) to provide democratic and accountable local government for local
communities;
(2) to ensure the provision of services to communities in a sustainable manner;
(3) to promote social and economic development;
(4) to promote a safe and healthy environment; and
(5) to encourage the involvement of communities and community organisations
in the matters of local govt.
• Section 153 provides that the municipality must:

structure and manage its administration and budgeting and planning
processes to give priority to the basic needs of communities, and to
promote the social and economic development of the community; and
participate in national development programs.
Structure of local government:

• Section 155 of the Constitution distinguishes between three categories of
municipalities, namely category A, category B and category C municipalities:
(A) Category A municipality: has exclusive municipal executive and legislative
authority in its area- metro municipality (no other municipalities in the area).
(B) Category B municipality: shares its municipal executive and legislative
authority in its area- local municipality.
(C) Category C municipality: has municipal executive and legislative authority
in an area which includes more than one municipality and is referred to as a
district municipality.
• Section 155 of the Constitution also provides that national legislation must establish
where an area has a single category A municipality OR should have municipalities of
both category B and category C.
• The Municipal Demarcation Board decide how the municipalities are separated from
one another and whether and area classifies as a metropolitan area.
• Metropolitan area: Area which can be regarded as a conurbation featuring areas of

high population density, intense movement of people, goods and services, extensive
development, multiple business districts and a number of industrial areas.
• The Municipal Demarcation Board is an independent body to avoid conflict between

municipalities and avoid municipalities deciding where their own boundaries lie.
56
Different categories of municipalities:

• The Municipal Structures Act provides for various categories of municipalities.
• The Act distinguishes between 3 executive systems and 2 participatory

systems of municipal government:
1. Executive systems:
Collective executive system: executive authority of municipality is
exercised by an executive committee – leadership collectively vested in
this committee.
Mayoral executive system: executive authority of the municipality is
exercised by an executive mayor assisted by a mayoral committee –
leadership vested in mayor.
Plenary executive system: executive authority is exercised by the
municipal council itself – leadership of municipality is vested in municipal
council.
2. Participatory systems:
Subcouncil participatory system: allows delegated powers to be
exercised by sub councils established for parts of the municipality.
Ward participatory system: allows for matters of local concern to be
dealt with by committees established for wards.
• After distinguishing between these systems, the Act also provides that:
(a) Metropolitan council: must have either a collective or mayoral system and
may have a subcouncil participatory system or ward participatory system or both.
(b) Local council: may have a collective/ mayoral/ or plenary executive system and
may have a ward participatory system but NOT with a subcouncil participatory
system (ONLY FOR METROS).
(c) District council: may have a collective/ mayoral/ or plenary executive system
but may NOT have a subcouncil or ward participatory system.
Municipal powers:
• Section 156 provides for the executive and legislative powers of a municipality.
• Section 156 provides that a municipality has executive authority and can
administer:
(a) matters listed in Part B of Schedule 4 and Part B of Schedule 5 (original
powers);
(b) any other matter assigned to it by national or provincial legislation
(assigned).
• Section 156 of the Constitution also provides that a municipality may make by-laws
in their area.
• Section 156 distinguishes between two types of powers:
(1) Original power- powers derived directly from the Constitution.
(2) Delegated/assigned powers- powers assigned to the municipalities by national or
provincial legislation.
57
Local Elections:
• When we vote in local elections, we vote to put together a Municipal Council.
• How the voting system works:

One vote is cast for a specific local municipal candidate (ie “voting for a
face”).
One vote is cast for a specific local municipal party.
These votes put together a local municipal Council that has the winning
candidates and representation of parties.
A third vote is for a specific district municipal party (where applicable). 40%
of the District Council is appointed this way, and the other 60% is appointed
by the Local Councils.
The financial powers of the spheres of government:

• The Constitution divides fiscal powers – the power to collect and spend public
funds – between the three spheres of government.
• Chapter 13 of the Constitution sets out the constitutional provisions regulating fiscal
powers.
• The division of fiscal powers:

The power to collect revenue is vested with the national sphere.
Chapter 13 of the Constitution restricts the power of the provincial and

local spheres to impose taxes.
o Section 228 restricts provincial taxes.
o Section 229 restricts municipal taxes.
The provinces and municipalities may impose only certain forms of taxes,
and only under certain conditions.
The fact that the Constitution restricts the power of the provincial and
local spheres to impose taxes, it compensates them for the loss by
granting them the right to an equitable share of revenue collected.
Section 214 (1) of the Constitution provides that an Act of Parliament

must provide for:
(a) the equitable share of revenue between the three spheres.
(b) the determination of each province’s equitable share of that
revenue.
(c) any other conditions on which these allocation may be made.
This Act in section 214 (1) is known as the Division of Revenue Act
(DORA).
58
Section 214 (2) of the Constitution states that DORA can only be passed
after the provincial governments, organised local government and the FFC
(Fiscal and Financial Comission) have been consulted and any
recommendation made by the FFC have been considered.
Once consultations have taken place, the Minister of Finance must

introduce the annual Division of Revenue Bill in the NA at the same time
that the annual budget is introduced.
The equitable share to each sphere of government must be set out in the
Bill.
The DORA begins by dividing the revenue nationally between the three
spheres of government.
It then goes to divide the provincial share raised nationally between the
provinces and it divides the municipal share raised nationally between
municipalities.
The Budgetary Process:

• The National Revenue Fund is established in terms of section 213 of the Constitution.
• The fund is under the control of the National Treasury, which is headed by the
Minister of Finance.
• All money received by the national government, except money excluded by an Act of
Parliament, must be paid into the fund.
• Section 213 provides that money may be withdrawn from the National Revenue Fund
only in terms of an appropriation by an Act of Parliament OR a direct charge against
the National Revenue Fund when it is provided for in the Constitution or an Act of
Parliament.
• NO money can be used without authorisation by the Constitution or
Parliament.
The Central Bank:

• Section 223 of the Constitution provides that the Reserve Bank is the central bank of
the Republic and it must be regulated in terms of an Act of Parliament.
• The Act is known as the South African Reserve Bank Act.
• Section 224 (1) of the Constitution:

Currency protection is the primary objective, with economic growth
treated as a side-effect.
• Section 224 (2) also provides that the bank is obliged to function independently and
without fear, favour or prejudice, but must consult regularly with the Minister of
Finance.
The government has no real control over the SARB’s monetary
policy; the SARB is thus said to be “independent”.
59
Traditional Leaders:
• It has historical relevance, and it still has an impact on SA today especially in rural
areas.
• Relevant Constitutional provisions (read sections in Constitution):

Recognition of Customary Law- Section 211;
Role of Traditional Leader- Section 212;
• The principles and rules of customary law is recognised by the Constitution.
• BUT this recognition is subject to two normative constraints (constraints that limit
what traditional leadership should be):
1. The status and role of traditional leaders must be determined by applicable

legislation and the principles and rules of customary law.
2. This legislation and customary is subject to the Constitution.
Legal Pluralism:
• Refers to multiples systems of law interacting with each other in the same space at
the same time.
• Different systems include: the countless forms of indigenous or African systems,
different religious systems, legislation and the Constitution.
• Two concepts of legal pluralism:
1. Narrow / State-law pluralism: different legal systems derive their legitimacy

from being recognised by the State.
2. Deep pluralism: a factual state of affairs where multiple legal systems
effectively operate, regardless of State recognition. Example, “living” customary
law – customary law as it is actually used, constantly changing and developing.
The National House of Traditional Leaders:

• The members of the NHTL are not democratically elected.
→ They are appointed by the provincial houses of traditional leaders.
• As they are not democratically appointed, they can only fulfil an advisory role, not a
legislative role.
• It also has no veto ability over legislation.
• It is only empowered to comment, advise and give recommendations on

how traditional leadership is regulated.
• They have strong political power.
60
Study Unit 8: Introduction and application of the BoR:
What is the Bill of Right (BoR)?

• It is a human rights charter that protects the civil, political and socio-economic rights
of all people in SA.
• Chapter 2 of the Constitution contains the BoR.
• It gives effect to transformative constitutionalism and reflects a post-liberal
approach.
Structure of Bill of Rights litigation:

When a person alleged that the State or another person has infringed on a right set
out in the BoR, the process that the court must follow is divided into three stages:
1. Procedural (application) stage:

→ Can X go to court and claim his right was infringed? (Does X have legal
stading- locus standi).
→ Which court has jurisdiction to determine whether there was an actual or
threatened infringement of the rights in the BoR?
→ If the person or organisation who allegedly infringed on X’s rights bound
by the duties imposed by the right?
→ Once the court a quo declared the law or conduct invalid, is this the end
of the process?
2. Substantive (limitation) stage:

→ What is the scope and content of the right and does the law or conduct
infringe the right?
→ If it does, can the infringement be justified in terms of the limitation
clause set out in section 36 of the Constitution?
3. Remedy stage:
→ If the law or conduct does infringe the right, how can the court remedy
the infringement?
The operational provisions in the BoR:

These provisions regulate the way the BoR operates and the manner in which it can be
enforced by the courts.
The operational provisions include (read sections in Constitution):

(a) Section 7: The States duty to respect, promote and protect the BoR- 7(2)
(b) Section 8: Who is entitled to claim the rights in the BoR?
(c) Section 36: The limitation of rights
(d) Section 37: The suspension of rights in a state emergency (derogable and non-
derogable rights)
(e) Section 38: Who has legal standing to enforce the rights in the BoR?
(f) Section 39: The interpretation of the rights
61
Two methods of classification of rights:

1. Traditional distinction between:
a) Civil and political rights:
→ Protects people against unlawful interference of the State, private
organisations and individuals and guarantees the ability of everyone
to participate in civil and political life of the State.
→ Includes, the right to equality, freedom of expression, fair trail,
freedom of assembly and to participate in elections and to vote.
b) Social, economic, and cultural rights:

→ Imposes an obligation on the State not to interfere with the
enjoyment of the rights and to take positive steps to provide people
with the resources and services they need to live a good life.
→ Includes, the right to housing, health, food, social security and
freedom of religion.
2. Distinction between the first, second or third generation rights:

a) First generation rights:
→ First generation right is the oldest and referred to as “blue” rights.
→ Consists of traditional civil and political rights.
b) Second generation rights:

→ Referred to as “red” rights.
→ Consists of social and economic rights
c) Third generation rights:

→ Most recent and is referred to as “green” rights.
→ Includes the right to self-determination, development and a healthy
environment.
Who is entitled to claim the rights in the BoR? (Section 8):

Natural persons:
• Includes every person present in SA, irrespective of whether they are citizens or non-
citizens.
• BUT, the formulation of right will determine whether “everyone”/ ”citizens”/
“children”/ “workers” are entitled to the protection of the right.
• Certain rights are only available for ‘citizens’, ‘children’ or ‘detained persons’.
Juristic persons:
• Section 8(4) provides that juristic person is entitled to the rights in the BoR to the
extent required by the nature of the right and the nature of that juristic person.
• Juristic persons cannot claim certain right because they are unable to enjoy them as
they are specifically for human beings, such as:
o The right to life (s11) and the right to vote (s19); and
o The right to health care, food and safety and security (s27)
o Exception: a church may claim right to religious freedom.
- The state is bound by the BoR and cannot claim protection.
62
Derogable and non-derogable rights (Section 37):

Derogable rights are:
→ Rights that can be suspended or limited.
→ EXAMPLE: During the Covid-19 pandemic our freedom of movement was
limited.
Non-derogable rights (s 37(5) table):
➢ Rights that cannot be suspended or limited.
➢ EXAMPLE: The right to life.
Who has legal standing (locus standi) to enforce the rights in the BoR?
(Section 38):
According to section 8 of the BoR, the persons who may approach (bring a claim) 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
(minors);
(c) Anyone acting as a member of, or in the interest of, a group or class of persons
(gangster community);
(d) Anyone acting in public interest (community health claim); and
(e) An association acting in the interest of its members.
Who is bound by the rights in the BoR?

Distinguish between direct and indirect application of the BoR:
1. Direct application:
→ The purpose is to determine whether the ordinary rules of law
(legislaton, common-law and customary law) are consistent with the BoR.
→ If they are NOT, the BoR overrides the ordinary rules of law.
→ When the BoR applies directly, it generates its own special remedies such as
reading down or reading in.
2. Indirect application:
→ The purpose is to determine whether the ordinary rules of law (legislation,
common-law and customary law) promote the values in the BoR.
→ If they do NOT, the BoR does not override the oridinary rules of law or
generate its own special remedies.
→ The BoR is used to develop the rules and remedies of the ordinary law so
that the ‘objective normative value system’ is given effect.
63
Distinguish between vertical and horizontal application of the BoR:

1. Vertical application:
→ When a private party brings human rights claim against the State.
→ It imposes an obligation on the State to respect, promote and protect the
right in the BoR but does not impose these obligations on private persons.
→ ONLY the State is bound by the right in the BoR.
→ The right applies “vertically”.
2. Horizontal application:
→ When a private party brings human rights claim against another private
party.
→ it imposes an obligation on both the State and private persons to respect
the right on the BoR.
→ BOTH the State and private persons are bound by the right in the Bill of
Rights.
→ The right applies “horizontally”.
CASES:
• Carmichele v Minister of Safety and Security and Another (Centre For Applied
Legal Studies Intervening) 2001 (4) SA 938 (CC)
• Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC)
64
Study Unit 9: Limitation of rights:
Limitation of rights:
• Although the rights set out in the BoR are fundamental, they can be limited in certain
specific circumstances in order to promote the public interest or to protect other
rights.
o EXAMPLE: Legislation prohibiting corporeal punishment in Christian schools
may limit the right to freedom of religion.
• Section 7(3) of the Constitution states that, all rights in the BoR are suspectable to
limitation as referred to in section 36.
• Section 36 of the Constitution is the limitation clause and provides the requirements
for a valid limitation.
Section 36 of the Constitution states that:
(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality, and freedom,
taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution,
no law may limit any right entrenched in the Bill of Rights.
65
Two-stage enquiry:
STAGE 1:
• THRESHOLD ENQUIRY: It must be determined whether a fundamental right has
been limited by looking at the content and scope of the protected right and
determining whether the measure (conduct) has in fact limited the right by infringing
or violating it.
Threshold enquiry 1:
The content and scope of protected right:
It must be determined whether the party who claims that his or her fundamental
right has been limited is a bearer of that right and whether the party who limits the
right (the perpetrator) is bound by it.
INTERNAL MODIFIERS:
→ Internal modifiers (provision in the right, that limit the right) sets out the
content and the scope of a right that explicitly limits the content if the
right in certain ways.
→ EXAMPLE: Section 16,
▪ Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
▪ The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to cause
harm.
The rights must be interpreted to enable the promotion of the value system of an
open and democratic society,
The rights must be interpreted contextually, and a too narrow interpretation should
be avoided.
Threshold enquiry 2:
Is the right infringed by this measure?
After determining the scope and content of the right involved, it must be established
whether the measure (perpetrators actions) have in fact limited the right by infringing
or violating it.
This is often a fact-specific exercise, where it involves determining the nature and
breach of the measure (conduct) to see whether it limited the protected right.
o The result of this inquiry will determine if it is necessary (or not) to continue
with the process - a negative outcome at this stage will halt the process.
66
STAGE 2:
• Once the court has determined that the perpetrators conduct has limited a protected
right, it must be determined whether the limitation is justified.
• If the court finds that the limitation is justified, the conduct has passed the test of
constitutionality.
• If the court finds that the limitation is not justified, the conduct will be
unconstitutional and invalid.
• JUSTIFICATION ENQUIRY: It must be determined whether the limitation can be

justified either in terms of the general limitation clause or in terms of a specific
limitation clause and whether the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom.
Justification enquiry 1:
(a) Is the measure (conduct) in terms of the law of general application?

“LAW” includes:
→ Constitutional provisions;
→ Section in legislation;
→ Rule of common law or customary law;
→ Existing legal principles applied by a court of law (precedent);
→ Exercises of government power – including subordinate legislation,
by-laws; domesticated international conventions; rules of court.
The limitation of a right (act) must be authorised by such a rule or principle

– unauthorised decisions and decisions by private persons are NOT law.
Examples:
o Criminalising certain behaviour or acts in a national or provincial Act
or municipal by-law.
o The customary law rule of male primogeniture.
o The common-law defence of moderate and reasonable chastisement
of a child by a parent
If no such law can be identified, the limitation is unconstitutional, and the

enquiry stops.
Any legislature may limit rights in line with section 36 within their scope
of legislative authority.
“General application” requires that a statute may not limit rights of

specific individuals.
Internal rules of institutions or organisations are not laws of general

application.
67
(b) Reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom?
QUESTIONS:
o Does the limiting measure serve a legitimate purpose? And
o Is there a rational connection between the limiting measure and its
stated purpose?
If a measure fails these two questions, it can never justifiably limit a right.
The factor set out in section 36(1)(a)-(e) needs to be considered.
This “all-at-once approach” raised the following criticism:

o It is illogical- a limiting measure that does not serve a legitimate
purpose or does not achieve that purpose can never satisfy the
requirements of proportionality.
o It makes extra work for a court- when a court founds that a

limiting measure does not serve a legitimate purpose or does not
achieve that purpose, it is not necessary to go further, and the
limitation analysis can be terminated.
o It is less analytically sound- questions that are initially addressed

separately are often lumped together and resolved using the all-
inclusive language of balancing and proportionality, glossing over
the nuances of the decision-making process.
o It reduces precedential value by making the balance struck too

case specific.
The reasonable and justifiable enquiry, follows the following

approach:
1. STAGE 1:
What is the purpose of the limitation and is it legitimate in an open and democratic
society?
2. STAGE 2:
What is the relationship between the limitation and it legitimate purpose. Are they
rationally connected?
3. STAGE 3:
Are there alternative, less restrictive means?
4. STAGE 4:
Is the limitation proportional taking into account the extent of the infringement, the
nature of the right, the breath of the limitation and the social good it achieves?
5. STAGE 5:
If the limitation is proportional, then the infringement is constitutionally valid. If not,
then the infringement is constitutionally invalid.
68
1. STAGE 1- The purpose of the limitation:

What is the purpose of the limitation?
• NO purpose: limitation invalid and enquiry stops.
• Whoever limits the right must be authorised to promote the particular
purpose.
Is thepurpose legitimate in an open and democratic society?

• The limitation must promote a lawful and permissible purpose.
• Measures may limit rights to protect the state and others.
• A limiting measure’s purpose will be legitimate, if it is consistent with
the Constitution’s objective, normative value system; or closely
connected with fulfilment of a right in BoR or to fulfil Constitutional
obligation.
• EXAMPLES of legitimate purposes:
▪ Reducing employment among SA citizens.
▪ Marinating discipline in schools.
▪ Preventing and prosecuting crimes.
• EXAMPLES of illegitimate purposes:
▪ Retribution of violent crimes.
▪ Enforcement of private moral views.
2. STAGE 2- The rational connection requirement:

The relationship focuses on the relationship between the purpose of the
limiting measure and the means chosen to achieve it and asks whether the
relationship is a rational one.
It focuses on whether the means chosen is capable of achieving the purpose
of the limiting measure.
❖ If it is capable= the relationship is rational.
❖ If it is NOT capable= the relationship is irrational.
The limiting measure must be rationally connected to its stated purpose; it
must not be arbitrary, unfair or based on irrational considerations.
Lowest level of scrutiny any court will apply.
Need not be the best or ideal measure to achieve the purpose.
3. STAGE 3- Less restrictive means:

The question is: Will another, equally effective but less drastic measure also
achieve the purpose?
The less restrictive means concept considers the possibility of a hypothetical,
alternative measure that is less restrictive of the right.
We are concerned with the concept of less restrictive means and NOT
“overbreath”- a concept that limit rights more than is necessary to achieve
the purpose.
Courts will not interfere with an option that falls within the range of
reasonable and legitimate alternatives.
The nature of the rights and interests protected as well as the extent of the
limitation will determine how easily a court will interfere.
EXAMPLE: a less important purpose served by highly intrusive limitation may
lead to courts requiring that a limitation be necessary (not just suitable).
69
4. STAGE 4- Balancing and proportionality proper:

This stage involves balancing and proportionality which turns to the fact-
which will be decisive.
“The balancing of competing goods”: the right and the limiting measure that
serves a constitutionally acceptable purpose.
Weighing up of the following required:

a) ONE SIDE: THE RIGHT AND THE EXTENT IT IS LIMITED:
o Nature and importance of the right/s infringed:
▪ What is the importance of the right for the enforcement
of a democratic society? How closely does the right
relate to the founding values? Who is the bearer of the
right?
o Extent of the limitation:
▪ How is the right affected? Does the limitation strike the
core of the right or its periphery.
▪ The greater the impact, the stronger justification
required (S v Manamela)
b) OTHER SIDE: THE LIMITING MEASURE:

o Already established internal threshold = rational connection to
legitimate purpose & no less restrictive means.
o Now, external threshold = Importance and purpose of the
limiting measure; more thorough considerations of objectives
and aims in an open and democratic society.
o The extent that the limitation promotes the purpose is also
relevant, i.e. what is the good it achieves?
o Need to balance against other implicated rights (if
promotion/protection is the purpose of limitation).
o A marginal promotion of a legitimate purpose may not be
allowed.
c) MUST LEAD COURT TO CONCLUSION:

o Limitation is reasonable & justifiable because it’s effect on the
rights is proportionate; or
o Limitation not reasonable & justifiable (unconstitutional and
invalid) because:
❖ effect on the right is disproportionate to the good
achieved by the measure; and/or
❖ means chosen is disproportionate (not well-tailored to
the purpose/overbroad).
70
The burden of justification:

→ THE GENERAL RULE:
The legislature or party relying on the legislation/law must establish the justification,
through:
o Legal argument;
o Placing factual material; and
o Policy considerations before the court.
→ The party challenging the measure does not need to establish that it is unjustified.
→ The difficulty arises when the state or private person relying on the limiting measure
makes an unsatisfactory attempt at justifying it under section 3691), or make no
attempt at all- it may be fatal to the legislature’s case (or that of the party relying on
the measure).
→ In a number of cases the court has assumed a more active role, as it has a duty to
conduct the justification analysis and to apply the limitation clause (only with legal
argument – not factual or policy-based).
Limitations during a state of emergency:

Section 37: state of emergency,
(1) A state of emergency may be declared only in terms of an Act of Parliament, and
only when-
(a) the life of the nation is threatened by war, invasion, general insurrection,
disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to restore peace and order.”
Validity of declaration may be tested by a court of law.

May be declared for 21 days only and then extended by up to 3 months at a time
with 60% majority in National Assembly.
Section 37(4): “Any legislation enacted in consequence of a declaration of a state

of emergency may derogate from the Bill of Rights only to the extent that-
(a) the derogation is strictly required by the emergency; and
(b) the legislation-
(i) is consistent with the Republic's obligations under international law
applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as reasonably
possible after being enacted.”
Section 37(5) contains the Table of Non-Derogable Rights:
▪ Rights to life and human dignity are protected in their entirety.
▪ Others may be limited to a certain extent.
Section 37(3)(c): “Any competent court may decide on the validity of any
legislation enacted, or other action taken, in consequence of a declaration of a state
of emergency.”
Thus, even under a state of emergency rights are protected and courts may rule on
limitations and infringements.
71
Study Unit 10: Constitutional remedies
The importance and purpose of constitutional remedies:

• If law or conduct unjustifiably infringes a right or does not promote the values in the
Bill of Rights an appropriate remedy must be applied.
• Remedies are used to repair an infringement of rights and to deter the infringement
from happening in the future.
• What is a remedy?
- It is a mechanism used to repair an infringement of rights once a court has
interpreted the right, applied it to the facts of the case and came to the
conclusion that the law or conduct in question is unconstitutional.
Section 38 and Section 172(1) and (2):

→ 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– (…)

(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
ii. an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct the defect.
(2) a) 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 CC.
b) A court which makes an order of constitutional invalidity may grant a temporary
interdict or other temporary relief to a party, or may adjourn the proceedings,
pending a decision of the Constitutional Court on the validity of that Act or conduct.
Constitutional remedies:
1. Declaration of invalidity
2. Declaration of rights
3. Interdict (mandatory & prohibitory)
4. Constitutional damages
5. Meaningful engagement
72
1. Declarations of invalidity:
Section 172(1)(a):
→ Where law or conduct conflicts or is inconsistent with the Constitution,
a court must declare the law or conduct invalid to the extent of
invalidity- no discretion is given to the courts.
→ The courts do not invalidate the law or conduct, they merely confirm
the invalidity which already existed (Ferreira v Levin).
→ The doctrine of objective invalidity:
o States that, law or conduct in conflict with the Constitution is
invalid from the moment that the conflict arises.
o An order of invalidity usually has retrospective effect, meaning
that the court merely confirms that the legislation or action of
the individual is invalid from the moment that the conflict with
the Constitution arose.
The process that the court must follow when a person alleged that a
legislative provision is constitutionally invalid:
a) Reading-down:
▪ Upon an allegation of invalidity, the courts must first attempt to
interpret the provision in a manner that renders it valid.
▪ If the words in a provision can be interpreted in a way that renders

the provision constitutionally valid or in a way that renders the
provision constitutionally invalid- the courts must choose the
interpretation that renders it constitutionally valid.
▪ Reading-down is not a remedy, but a rule of statutory interpretation
aimed at avoiding the invalidation of legislation (section 39(2)).
▪ Reading down can only be possible if a provision is reasonably capable
of such an interpretation- if the words cannot reasonably be
interpreted in line with the BoR, reading down cannot happen.
▪ EXAMPLE: A section in the Marriage Act states- “Marriage is between

two people.”
o “Two people can mean a man and a woman only”, but this
interpretation would then be in conflict with the BoR because it will
not be a justifiable limitation- courts must avoid giving interpretations
which would lead to legislation being invalidated.
o This is why this is NOT a remedy because, a declaration of invalidity
occurs BEFORE a right is declared to be infringed- it tries to avoid
infringing rights by interpretation.
▪ If reading- down is not possible, then the court must declare the
provision invalid.
▪ BUT, the court should also attempt to limit the impact by severing
(cutting) the offending words, or reading in words.
▪ A court may also suspend invalidity or limit the retrospective effect.
73
Limiting the retrospective effect of invalidity:

• The retrospective effect of invalidity may have disruptive consequences, in that all
acts performed in terms of an invalidated provision are also invalidated.
• Court must thus consider the interest of justice in granting the order, and the effect
that retrospectivity will have.
• The CC has identified the following factors as relevant to such a
consideration:
- The interest of the individual must be weighed up against practicalities in
administration of justice – what will the effect of undoing all actions and
transactions under the invalidated legislation, be?
- Litigants should be granted relief and all persons in the same position should
benefit, but the interests of good government may outweigh an individual
litigant’s interest.
- Orders of invalidity should have no effect on finalised matters, such orders
normally apply only to pending and future matters.
The suspension of an order of invalidity:

• Section 172(1)(b)(ii) of the Constitution allows for the suspension of invalidity for a
specified period- the provision remains operative while the legislature is granted an
opportunity to correct defects (typically by amending or redrafting the legislation).
• It must be in the interests of justice and equity under the circumstances.
• The period to correct defects depends on the complexity of the defect.
• If the legislature does not amend the legislation within the period of suspension, the
legislation becomes invalid and is no longer operational- a court may extend a
suspension of invalidity upon application.
b) Reading-in:
o The court literally reads words into an unconstitutional provision to cure the
unconstitutionality.
o This is done if provisions are unconstitutional because of the omission of
certain words and phrases.
o Reading-in only happens AFTER the court has established that a provision
conflicts with the Constitution and declared invalid– it is a REMEDY.
o EXAMPLE: A section in the Intestate Succession Act states- “A person may

inherit from their husband or wife.”
o This section cannot be interpreted to include:
 People who are non-binary (neither male or female); or
 People who are not married- therefore reading-down cannot be applied.
o The court can order that the section read as follow: ““A person may inherit
from their husband or wife or life-partner, whether married or not.”
o Therefore, where something is missing, the court will read in (add) the
missing words.
74
What is the danger of reading-in?

It raises questions about the separation of powers – are the courts assuming a legislative
role?
In the case of, National Coalition for Gay & Lesbian Equality v Minister of Home Affairs the
CC stated that reading- in does not give the judiciary the final word on how legislative
provisions should be formulated. The remedy that the court grants (addition of words) is not
final and can still be amended or abolished by the legislature.
The role of the court in the interpretation of legislation:

▪ The court must ensure the words are consistent with the Constitution.
▪ The court must also ensure the result would interfere as little as
possible with the legislative scheme.
The court can only read in where it is appropriate.
c) Severance:
o The opposite of reading in – instead of adding missing words, the
court removes extra words that are causing the problem.
o A court does not have to declare the entire provision
unconstitutional, if it is possible to cut out the bad parts and
retain the good parts- could be a subsection, words, or a certain
section.
o The test for severance has two parts:

o FIRSTLY:
whether it is possible to sever the invalid provision (bad part)
from the valid provision (good part); and
o SECONDLY:
Whether the part that remains still gives effect to the purpose
of the statute.
o If the provision that remains after the separation does not

give effect to the purpose of the statute, the court will have
to declare the entire provision invalid.
o EXAMPLE: A section in the Cybercrimes Act states- “It is a

criminal offence to publish propaganda for war, hate speech,
or other political opinions on social media.”
o If we sever the words “or other political opinions”, the rest of
the provision will still be constitutional.
o EXAMPLE: A section in the Cybercrimes Act states: “It is a

criminal offence to publish political opinions on social media,
on television, on radio, or any other public platform.”
o If we sever the words “political opinions”, the words are tied
to the rest of the provision and the entire provision will have
to be declared invalid.
75
d) Notional severance:
o This remedy is similar to severance in that it allows the court to
remove the constitutionally invalid parts and leave the
constitutionally valid parts intact BUT, the offending words are not
actually removed from the provision.
o This provision will therefore, only apply to certain cases or
circumstances.
o Notional severances differ from reading down, in that the provision
cannot reasonably be interpreted and therefore, the court instructs
others how to interpret and apply the provision.
o Notional severances are used if other remedies would leave an
impermissible gap in the law.
2. Declaration of rights:
Section 38 of the Constitution provides that when a right in the BoR has been
infringed, a competent court may grant relief in the form of a declaration of
rights.
It is aimed at resolving a dispute between parties and to provide guidance on
how the law must be observed.
The declaration of rights can be given before the actual infringement takes
place.
3. Interdict (mandatory & prohibitory):

→ Also known as “injunctions”.
→ An interdict is granted to order someone to either do something, to stop
doing something or refrain from doing something in order to stop or to
prevent and infringement or a right.
→ Prohibitory interdict: An interdict that prevents a party from undertaking
certain conduct.
→ Mandatory interdict: An interdict in the form of an instruction to perform
certain acts.
→ Interdicts can be structural / supervisory in that a party is required to report
back to the court with updates on how a constitutional breach is rectified.
The Court retains jurisdiction after the end of the case – meaning the
parties have to come back at some point.
Invasive remedy: care must be taken not to violate separation of
powers, since the court is retaining supervision over eg the
government.
BUT, it also allow the Court to respect separation of powers by not
immediately giving a final order.
76
4. Constitutional damages:
Damages refers to a sum of money paid to a person to compensate him/her
for harm caused by the wrongful conduct of the state or another individual.
Damages can also be paid to mitigate future loss a person will suffer as a
result of the wrongful conduct of the state or another individual.
The CC stated that there may be cases where the payment of compensation
can vindicate the vales underlying the Constitution or where it may deter and
prevent future infringement of rights.
Constitutional damage will be appropriate where such an award is necessary

to protect and enforce the rights contained in the BoR.
However, if another remedy can be used to award damages, constitutional

damages will not be awarded.
5. Meaningful engagement:
✓ This remedy is used by the courts to help deepen democracy and empower
citizens
✓ This remedy places an obligation on the state to respond to the concerns of
the affected parties.
✓ This is a two-way process:

→ It allows the court to avoid deciding for the parties – the parties can
work it out amongst themselves and then come back to court if
necessary to get the agreement made a court order.
→ It allows the court to avoid infringing on the separation of powers.
77
Study Unit 11: Equality, human dignity, freedom and privacy rights
The right to equality and non-discrimination:
The right to equality:

Section 9 of the BoR provides for the right to equality:
(1) Everyone is equal before the law and has the right to protection and benefits of the
law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed to protect or
advance persons or categories of persons, disadvantaged by unfair discrimination
may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.
Purpose and aim of the right to equality:

• It addresses the unfairness inherent in our country and provides a legal framework
to prevent unfair treatment of individuals based on their race, sex, gender, sexual
orientation, disability and other personal characteristics.
• The right to equality is an essential component in our transformative Constitution-

because the right to equality includes the aspirations of eventually achieving a
society in which all persons enjoy equal access to resources and amenities of life.
Two important consequences flow from this conception of the right to

equality:
(a) Firstly, the right to equality does not guarantee that all people should be treated
identically at all times- the right entail more than a formal prohibition against
discrimination.
(b) Secondly, the right to equality must guarantee more than equality before the law
and must focus on the effects or impact of the law and society which give rise to
inequality in the first place. It doesn’t focus on making the law treat everyone the
same- substantive equality.
78
• Formal equality is the belief that inequality is irrational and arbitrary and that people
are all born free and equal, and that the harm of discrimination is situated in the
failure of a government to treat all people as equally free.
• Formal equality is based on the idea that all individuals should be treated the same
by the law- it is a “liberal’ idea, it focuses on individual “autonomy” and “freedom”
and avoids social structures.
• Substantive equality is remedial- because it aims to overcome the effects of the past
as well as ongoing discrimination or prejudice.
• Minister of Finance v Van Heerden:

- The CC embraced the notion of substantive equality and stated that it beside
uneven race, class and gender, there are other levels and forms of social
differentiation and systematic under-privilege which still persist- the Constitution
wants to dismantle them and prevent the creation of new patterns of
disadvantage.
- Therefore, the courts must take into account in each equality case, the
following, in order to determine whether there is a breach of section 9:
o The situation of the complainants in society;
o Their history and vulnerability;
o The history, nature and purpose of the discriminatory practice; and
o Whether it adds to group disadvantages in real life context, in order to
determine its fairness.
- The court’s approach requires a contextual analysis.

- The courts contextual or remedial approach acknowledges that inequality results
from complex power relations in society.
- It states that the law had an important role to play in reordering the power
relations in ways that strive to ensure that all individuals are treated as if they
have the same moral worth.
• Example of substantive and formal equality:
I make a new Lecturer Rule: everyone on Vaal Campus will get an apple during today’s
lecture. After the lecture, students on Mahikeng and Potch campus are understandably
upset, and call for the abolition of this discriminatory rule- the rule is abolished before the
next lecture. The students on Mahikeng and Potch remain upset, because they didn’t get an
apple last lecture. I tell the displeased students are told that while my old Rule was indeed
unfair, I am now acting perfectly fairly- there are now no rules whatsoever that distinguish
between students of different campuses (the treatment of all students are equal)- it is
formal equality.
The students remain displeased! They argue that measures must be taken to acknowledge
my prior unfair rule and to take meaningful steps to rectify the unfairness (whether that
mean giving apples to them as well or redistributing apples)- the students argue for
substantive equality (not only formal but also substantive).
79
Section 9(1):
• Used in cases of MERE DIFFERENTIATION!
• Section 9(1): “Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
• EXAMPLE: Mere differentiation include distinctions between different types of

prisoners or different classes of taxpayers.
• Section 9(1) will be violated if the differentiation is not rational!
• The law requires that the state functions in a rational manner and that it does not
distinguish between people or groups of people in a way that is irrational.
• This means that there must be a specific or legitimate governmental purpose, and
the purpose must be linked to the differentiation- if there is no specific purpose, or
the legislative provision is irrational, the legislative provision will be invalid.
Section 9(2):
• Used in cases of REDRESS MEASURES (AFFIRMATIVE ACTION)!
• Section 9(2): “Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and other measures
designed to protect or advance persons or categories of persons, disadvantaged by
unfair discrimination may be taken.”
• EXAMPLE: The Employment Equity Acts provisions requires only certain employers to
institute affirmative action policies.
• The section recognises that the achievement of equality requires the state and other
powerful institutions to take positive steps to address the social and economic
inequalities in society, AND to address the structures and systems that help to
perpetuate this inequality.
• This recognition lies at the heart of the notion of substantive equality.

• Corrective or restitutionary measures are needed to perpetuate inequality and to
address social and economic inequality to achieve equality in the long term.
To determine whether a set of corrective measures imposed by legislation,

complies with section 9(2) and is therefore valid, a court will focus on three
distinct questions:
1. Do the measures target persons or category of persons who have been

disadvantaged by unfair discrimination?
2. Are the measures designed to protect or advance such persons or categories of

persons?
3. Do the measures promote the advancement of equality in the long term?
80
Section 9(3):
• Used in cases of UNFAIR DISCRIMINATION!
• Section 9(3): “The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.”
• EXAMLE: A legislative provision that grants women but not men the right to certain
number days pregnancy leave.
• This section recognises that the state should at rational and fair and avoid
discrimination on the grounds listed in section 9(3).
• Discrimination on the grounds listed in section 9(3) will amount to unfair
discrimination.
• Section 9(3) can be used on its own directly if:

→ Section 9(1) is NOT violated- the differentiation is rational but, it might be
unfair discrimination.
→ Section 9(2) is NOT met- if it is not a legitimate redress measure but, it might
be unfair discrimination.
• Harksen v Lane:
• To determine whether a differentiation amounts to unfair
discrimination in terms of section 9(3), the court use the following
analysis:
1. The court has to determine whether the provision differentiate between

people or categories of people?
o If so, does the differentiation bear a rational connection to a
legitimate government purpose?
o If it does bear a rational connection, it might amount to
discrimination.
2. Does the differentiation amount to unfair discrimination? This requires a

two-stage process:
(a) Firstly, does the differentiation amount to discrimination?
• If it is on a specific ground, then discrimination would have
been established.
• If it is not on a specific ground, then whether or not there is
discrimination will depend on whether, objectively, the ground
is based on characteristics which have the potential to impair
the fundamental human dignity of persons as human beings or
to affect them in a serious manner.
81
(b) If the differentiation amounts to “discrimination”, does it amount to

“unfair discrimination”?
• If it has been found to have been on a specific ground, then
unfairness will be presumed.
• If on an unspecific ground, unfairness will have to be
established by the complainant. The test will be- What is the
impact of the discrimination on the complainant?
3. If the discrimination is found to be unfair, then a determination will have

to be made as to whether the provision can be justified under the
limitation clause.
• The court distinguishes between discrimination and unfair discrimination,
arguing that not all discrimination is unfair.
• Where the discrimination can be proven not to be unfair, the legislative
provision does not apply to section 9(3).
The right to human dignity:

Section 10 of the Constitution provides that:
→ “Everyone has inherent dignity and the right to have their dignity respected and
protected.”
The purpose and aim of the right to human dignity:

• Dignity is one of the founding values in the Constitution.
• Dignity is not only a founding value, but also an independent, self-standing,
enforceable right.
• Human dignity demands that people be treated as unique individuals rather than as
merely representatives of a group.
• The right implies and expectation to be protected from treatment or conduct which
offends a person’s sense of his/her worth in society.
o TREATMENT: It includes treatment that is abusive, degrading, humiliating or

demeaning- which amount to a violation of the right to human dignity.
o CONDUCT: It includes conduct which treats a person as non-human, or less
than human, or as an object- which is contrary to section 10.
• According to Sachs J:
→ The right to human dignity entails that everyone has the same moral worth
and is recognised as human beings who are entitled to be treated with
respect.
82
• Dignity includes:
1. A right to family life:
▪ Consists of the right to marry and the right to raise a family.
▪ This means that legislation that threatens a foreign national to remain in
the country with his South African spouse and children, infringes on the
right to dignity.
2. A right to have one’s agency respected and protected:
▪ When individuals are treated in a manner that limits their ability to make
meaningful choices about their daily lives.
▪ EXAMPLE: Forcing unhoused people to be at a shelter by 8pm or else be
denied access – Dladla v City of Johannesburg
▪ OR assault of children being classified as legal if it qualified as “moderate
chastisement” – Freedom of Religion SA v Minister of Justice and
Constitutional Development.
3. The right not to be degraded, stigmatised and devalued:
▪ When an individual is unfairly discriminated against which result in
degrading and humiliating treatment against that individual.
Minister of Home Affairs v Fourie:

• In this case, a homosexual couple wanted to get married in terms of the Marriage
Act.
• Their application was denied because it was argued that the reference to husband
and wife in the Marriage Act excluded same-sex couples.
• The CC declared that the denial of the right of homosexual persons to marry,
represented a harsh statement by the law that same-sex couples are outsiders, and
that their need for affirmation and protection of their intimate relations as human
beings is less than that of heterosexual couples.
• The inference was that same-sex couples were not worthy of the same rights and
protection as heterosexual couples.
• The CC declared that the common law definition of marriage was inconsistent with
the Constitution and invalid to the extent that it excluded same-sex couples to enjoy
the status and benefits given to heterosexual couples.
The right to freedom and security of the person:

(1) Everyone has the right to freedom and security of the person, which includes the
right -
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
83
The more “traditional” part of the right- focuses on unwanted attacks on an individual’s
physical body, and protects individuals against abuse by the State for political purposes (as
under apartheid).
(2) Everyone has the right to bodily and psychological integrity, which includes the right
-
(a) to make decisions concerning reproduction;
(b) b. to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed
consent.
The more “modern” part of the right- focuses on individual autonomy and protects particular
aspects of particularly vulnerable people’s bodies.
The purpose and aim of the right to freedom and security of the
person:
• Apartheid relied on depriving people of their freedom in various ways- allowed for
anyone to be “detained”.
• Therefore, Section 12 of the Constitution guarantees certain freedoms, both in terms
of physical, bodily and psychological integrity.
Section 12(1):
→ Two aspects of section 12(1):
(1) Procedural fairness:
o A fair and lawful procedure must be followed before anyone can be
deprived of their physical freedom.
(2) Substantive fairness:
o Even if the procedure is fair and lawful, no-one may be deprived of their
freedom on an arbitrary ground or without just cause.
o There must be a satisfactory and adequate reason – it must be “rational”
and “just”.
o It must be consistent with constitutional values.
→ Section 12(1)(c)- Places a positive and negative obligation on the State:

→ NEGATIVE: State must refrain from interfering with freedom.
→ POSITIVE: State must take action to protect private parties from the
interference of other private parties.
84
→ Freedom of Religion v Minister of Justice:

❖ In this case, a father was convicted of abusing his 13-year-old son by
viciously kicking and punching him.
❖ The father appeal to the HC.
❖ The HC dismissed the appeal and declared a parent’s common law
right to administer reasonable and moderate chastisement to his/her
child as unconstitutional- the applicant appealed against this part of
the judgment.
❖ The CC dismissed the appeal and found that a parents right to
administer moderate and reasonable chastisement unjustifiably
infringes on section 12(1)(c) of the Constitution.
The right to privacy:

(14) Everyone has the right to privacy, which includes the right not to have—
(a) their person or home searched;

(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
The scope and content of the right to privacy:

• The scope of a person’s privacy only extends to those aspects in regard to which a
legitimate expectation of privacy can be harboured.
• There are two distinct components of this expectation:

(1) A subjective expectation of the right to privacy:
▪ EXAMPLE: A person cannot have a subjective expectation of privacy in
cases where he or she willingly consented to waive the right.
(2) An expectation that the society has recognised as objectively reasonable:
▪ This focuses on a determination by a court on whether the person
claiming that his/her right to privacy was infringed could reasonably
expect his or her privacy to be protected in the particular circumstances.
▪ This “reasonable expectation” depends on whether the inner sanctum of
personhood was interfered with.
▪ Bernstein v Bester:
→ The inner sanctum of a person’s life, in his personal realm like his
home or bedroom, there would be a greater likelihood that a
person’s expectation of having his or her privacy respected is
reasonable.
85
• Privacy and dignity are closely related:

o Where a person’s privacy is breached, that person will often not be treated
with concern and respect.
The Minister of Justice v Prince:

→ The CC held that the prohibition on the use, cultivation, and possession of cannabis
in private by adults for personal consumption infringed on the right to privacy.
→ The judgment suggests that the prohibition on the use, cultivation, and possession of
cannabis, strikes at the inner sanctum of privacy and therefore limits the right to
privacy however, the interference in the inner sanctum can still be justifiable in terms
of section 36(1) of the limitation clause.
→ The court held that the prohibition of the use, cultivation, and possession of cannabis
was not a justifiable limitation on the right to privacy.
→ The court found that it was no longer a criminal offence for an adult to cultivate,
possess and use cannabis in private.
→ However, the purchase and selling of cannabis still remains prohibited.
86

IURI 275 - Notes SU 1-11

Uploaded by

Copyright:

Available Formats

IURI 275 - Notes SU 1-11

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

IURI 275 - Notes SU 1-11

Uploaded by

Copyright:

Available Formats

IURI 275 C van Rooyen 071 472 9323

Study Unit 1: Introduction to the South African Constitutional Law:

What is Constitutional law?

• A State can take on a variety of forms, such as a monarchy, a republic, a unitary

• Elements of the legal definition:

The sociological definition (Max Weber):

Is New New-York a state?

The historical development of South Africa as state:

The Pre-Union Developments:

• In Cape and Natal colonies, constitutional development mirrored those of other

• Governor-General had a veto power (power to say no or to stop an official action)

These governing structures established the principle of the supremacy of the

3. The British influence on indigenous governance:

• As colonial governments expanded their territories, indigenous South Africans were

4. The Glen Grey Act:

5. The Native Affairs Commission:

• Commission supported the establishment of 'native reserves'.

The Union of South Africa and the bifurcated state:

• Northern provinces completely barred black citizens from voting.

• The Union Constitution followed a Westminister-style parliamentary government (like

• Union Parliament consisted of 2 houses: House of Assembly and Senate:

• Limitations on the sovereignty of the newly elected Parliament:

Meaning that the Union Parliament could not legislate extraterritorially or in a

The National Party:

• Objectives of the NP:

The Republic of South Africa, 1961:

Laws adopted by the Union Parliament after 1910:

1. The Black Administration Act:

2. Bantu Authorities Act:

The 1983 Constitution:

• In 1990, FW de Klerk removed restrictions on liberation movements such as the

• This is when the negotiations begun.

The transition to democracy: (The run-up to the first democratic election)

The second milestone:

Negotiations for a democratic society:

CODESA, the MPNF and the two-stage transition:

• There were different views about transition towards democracy:

The Two-stage constitution-making process:

Was the two-stage process undemocratic?

Drafting and adopting the final 1996 Constitution:

• A public participation programme and political discussions were launched to ensure

The CC evaluated the text in two distinct ways:

• Therefore, the Constitutional Assembly was found to have adopted an

• Although the constitution was adopted by a democratically elected body

• The CA amended the constitution as required by the CC judgement.

The transformative nature of the Constitution:

• 6 Transformative characteristics of the text:

Interpretation of the South African Constitution:

• Court has also resorted to less traditional factors such as:

Correct citation of the Constitution:

Study Unit 2: Basic concepts of Constitutional law

• Constitutionalism is about the idea that a constitution must structure and

Descriptive and prescriptive understanding of Constitutionalism:

Constitutionalism in South Africa:

• Influence of Parliament (legislative arm of government) on the Executive

• Influence of Parliament the Judiciary (courts):

• Section 2 of the Constitution provides that, the Constitution is the supreme

• The values to the Constitutional system:

(a) Human dignity, equality and the advancement of human rights