STUDY UNIT 7
Institutions Supporting Constitutional Democracy (Chapter 9 Institutions)
Reference Constitution of the Republic of South Africa 1996
Section 181 Establishment and governing principles
Section 182 Functions of public protector
Section 183 Tenure
Prescribed Cases
• Independent Electoral Commission v Langeberg Municipality 2001 (3) SA
925 (CC)
• New National Party v Government of the Republic of South Africa and Others
1999 (3) SA 191
Reports of the Public Protector
“Secure in comfort”:
• The Public Protector’s report on security upgrades at Nkandla
“Against the rules”:
• The Public Protector’s report on the conduct by the Department of Public Works and the South
African Police Service relating to the leasing of office space in Pretoria
_______________________________________________________________________________
Know which institutions have been established to contribute to accountable government and to
contribute to the transformation of South Africa into a society in which justice prevails.
Chapter 9 Institutions
• The Public Protector
• The South African Human Rights Commission
• The Commission for the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities
• The Commission for Gender Equality
• The Auditor-General
• The Electoral Commission.
1
, Know how they assist the various organs of state to adhere to the values and principles of the
new constitutional dispensation.
Two roles of the Institutions:
• Checking government (contributing to accountable government or monitoring)
• Contributing to the transformation of South Africa into a society in which social justice prevails’.
• These institutions are independent non-judicial institutions and do not play the same role as the
judiciary in enforcing the Constitution.
• While they are independent from the other branches of government, they are also accountable
to the National Assembly (NA), one of the other branches of government.
• The institutions can make findings and recommendations but, unlike the judiciary, they do not
have the power to review and set aside legislation or the actions of the executive. (Do not enjoy
the same independence as the judiciary)
• The primary role of these institutions is to act as watchdogs to prevent the abuse of power
(often by state entities).
• There are six Chapter 9 institutions, as provided for in section 181(1) of the Constitution.
• The institutions can make findings and recommendations but, unlike the judiciary, they do not
have the power to review and set aside legislation or the actions of the executive.
• However, they are ‘important tools to monitor the state’s realisation of individuals’ rights in
terms of its constitutional obligations’.
• These institutions have the power to investigate and make findings and recommendations for
remedial action, although these recommendations are not legally binding.
Independence of Chapter 9 Institutions
• Chapter 9 institutions can perform well if they enjoy independence from both
the executive and the legislative branches.
• The Constitution guarantees such independence from government.
• Further, independence relates to financial and Administrative independence.
The case of Independent Electoral Commission v Langeberg Municipality is
important in view of the fact that, in this case, it was held that the Chapter
9 institutions perform their functions in terms of national legislation, but are
not subject to national executive control. As such, these institutions need to
“manifestly be seen to be outside government”.
In the case of New National Party v Government of the Republic of South Africa and Others,
the Constitutional Court affirmed the principle that these institutions must have financial
independence in order to function independently and to be able to exercise their duties
without fear, favour or prejudice. For this to be achieved, Parliament must provide a
reasonable amount of money that will enable the institutions to fulfil their constitutional and
legal mandates. In addition, these institutions require administrative independence.
Institutions set up to safeguard and promote democracy (and the rights required to
safeguard that democracy) can only do their work if they enjoy a certain level of
independence from the legislative and executive branches of government.
According to section 3 of the Electoral Commission Act 51 of 1996, the Electorial
Commission is independent and subject only to the Constitution and the law and
shall be impartial and shall exercise its powers and perform its functions without
fear, favour or prejudice.
2
Institutions Supporting Constitutional Democracy (Chapter 9 Institutions)
Reference Constitution of the Republic of South Africa 1996
Section 181 Establishment and governing principles
Section 182 Functions of public protector
Section 183 Tenure
Prescribed Cases
• Independent Electoral Commission v Langeberg Municipality 2001 (3) SA
925 (CC)
• New National Party v Government of the Republic of South Africa and Others
1999 (3) SA 191
Reports of the Public Protector
“Secure in comfort”:
• The Public Protector’s report on security upgrades at Nkandla
“Against the rules”:
• The Public Protector’s report on the conduct by the Department of Public Works and the South
African Police Service relating to the leasing of office space in Pretoria
_______________________________________________________________________________
Know which institutions have been established to contribute to accountable government and to
contribute to the transformation of South Africa into a society in which justice prevails.
Chapter 9 Institutions
• The Public Protector
• The South African Human Rights Commission
• The Commission for the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities
• The Commission for Gender Equality
• The Auditor-General
• The Electoral Commission.
1
, Know how they assist the various organs of state to adhere to the values and principles of the
new constitutional dispensation.
Two roles of the Institutions:
• Checking government (contributing to accountable government or monitoring)
• Contributing to the transformation of South Africa into a society in which social justice prevails’.
• These institutions are independent non-judicial institutions and do not play the same role as the
judiciary in enforcing the Constitution.
• While they are independent from the other branches of government, they are also accountable
to the National Assembly (NA), one of the other branches of government.
• The institutions can make findings and recommendations but, unlike the judiciary, they do not
have the power to review and set aside legislation or the actions of the executive. (Do not enjoy
the same independence as the judiciary)
• The primary role of these institutions is to act as watchdogs to prevent the abuse of power
(often by state entities).
• There are six Chapter 9 institutions, as provided for in section 181(1) of the Constitution.
• The institutions can make findings and recommendations but, unlike the judiciary, they do not
have the power to review and set aside legislation or the actions of the executive.
• However, they are ‘important tools to monitor the state’s realisation of individuals’ rights in
terms of its constitutional obligations’.
• These institutions have the power to investigate and make findings and recommendations for
remedial action, although these recommendations are not legally binding.
Independence of Chapter 9 Institutions
• Chapter 9 institutions can perform well if they enjoy independence from both
the executive and the legislative branches.
• The Constitution guarantees such independence from government.
• Further, independence relates to financial and Administrative independence.
The case of Independent Electoral Commission v Langeberg Municipality is
important in view of the fact that, in this case, it was held that the Chapter
9 institutions perform their functions in terms of national legislation, but are
not subject to national executive control. As such, these institutions need to
“manifestly be seen to be outside government”.
In the case of New National Party v Government of the Republic of South Africa and Others,
the Constitutional Court affirmed the principle that these institutions must have financial
independence in order to function independently and to be able to exercise their duties
without fear, favour or prejudice. For this to be achieved, Parliament must provide a
reasonable amount of money that will enable the institutions to fulfil their constitutional and
legal mandates. In addition, these institutions require administrative independence.
Institutions set up to safeguard and promote democracy (and the rights required to
safeguard that democracy) can only do their work if they enjoy a certain level of
independence from the legislative and executive branches of government.
According to section 3 of the Electoral Commission Act 51 of 1996, the Electorial
Commission is independent and subject only to the Constitution and the law and
shall be impartial and shall exercise its powers and perform its functions without
fear, favour or prejudice.
2
