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Constitutional Law Case summariesSTUDY UNIT 2: Birth of the Constitution
In re: Certification of the Constitution of the Republic of South Africa, 1996
CC considered objection that Chapter 3 of Const detracts from the autonomy of the
providences. It was argued in the CC, that Chapter 3 of the Const, and in particular the
requirement that the different spheres of government should avoid legal proceedings against
each other violated the Constitutional principle that the allocation of powers btw different
levels of government should be done on the basis of recognising “legitimate provincial
autonomy”.
CC stressed that the Constitutional Assembly was free to choose a model of cooperative
government rather than one of competitive or divided federalism. It rejected the notion that
section 41 outlaws litigation between organs of state. Moreover, the fact that it is left to an
Act of Parliament to establish the necessary structures and institutions, and to prescribe the
mechanisms and procedures to facilitate the settlement of intergovernmental disputes, is not
invasive of provincial autonomy.
Court concluded that intergovernmental cooperation is implicit in any system where powers
have been allocated concurrently to different levels of government. The fact that the 1996
Const has made explicit what would otherwise have been implicit cannot, in itself, constitute
a failure to promote or recognise the need for legitimate provincial autonomy.
Court also rejected the contention that Chapter 3 placed certain obligations on the provinces
which restricted and diminished the powers of the provinces. The Court found this argument
to be unpersuasive on the premise that any suggested diminution of the powers of the
provinces was balanced by a corresponding reciprocal reduction in the reciprocal powers of
the national government.
1
,STUDY UNIT 5: Separation of Powers
De Lange v Smuts NO & others 1998 (3) SA 785 (CC)
Facts
Applicant was only member of close corporation which was wound up. Second, third & fourth
respondents = liquidators. Applicant summoned under Insolvency Act to attend second
meeting of creditors of corporation & required under Act to produce books of account & other
financial records. Application was made on behalf of second, third & fourth respondents for
issue of a warrant committing applicant to prison, under the Act, on grounds that he had, in
breach of the injunctions of the subsection, failed to produce books & docs he’d been
summoned to produce & that he had failed to answer questions lawfully put to him under the
Act fully & satisfactorily. Application was postponed for argument & thereafter presiding
officer (first respondent) issued a warrant committing application to prison.
Legal Question:
Whether Section 66 (3) of Insolvency Act is constitutionally invalid (in relation to the doctrine
of the separation of powers) since it permits power to non-judicial officers to commit an
uncooperative witness to prison.
Judgment:
This section of the Insolvency Act is unconstitutional since the power to commit an
uncooperative witness to prison is within the very heartland of the judicial power &
therefore cannot be exercised by non-judicial officers.
Reason for judgment:
The “(fair) trial” prescribed by s12 (1) (b) of Constitution requires a hearing presided over or
conducted by a judicial officer in the court structure established by the Constitution & in
which s165 (1) of Constitution has vested the judicial authority of the Republic. In the vast
majority of cases creditors’ meetings under the Insolvency Act are presided over by officers in
the public service, designated for that purpose under the provisions of the Act. Such officers
do not meet one fundamental & indispensable criterion: they are officers in the public service
in the executive branch of the state & therefore do not enjoy the judicial independence which
is foundational to & indispensable for the discharge of the judicial function in a const
democracy based on the rule of law. This independence is expressly proclaimed, protected &
promoted by subsections (2), (3) and (4) of section 165 of the Constitution
Note: However, judge held that magistrates functioning in terms of the Insolvency Act can
be said to be exercising the authority reserved to courts by s165 of Const since they
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, will enjoy institutional independence & can be expected to apply the law impartially &
without fear, favour or prejudice. They will exercise their powers within the matrix of
the superior hierarchical judicial control to which they are institutionally & habitually
accustomed. The principles embodied in & values to be protected by separation of
powers will be secured. Judge supports the distinction which allows magistrates to
order committal to prison & denies that power to other state functionaries.
Executive Council of the Western Cape Legislature and Others v President
of the Republic of South Africa and Others 1995 (10) BCLR
1289 (CC)
Facts:
Dispute btw the Executive Council of WC & the national government re the constitutional
validity of amendments to the Local Government Transition Act (“TA””) which were made by
the President by proclamation purporting to act in terms of powers vested in him under the
Transition Act.
S245 (1) of Constitution provides that until elections have been held, local government shall
not be restructured otherwise than in accordance with the TA. TA provides machinery for the
transition from a racially based system of local government to a non-racial one & a process
for this to continue until the holding of the first non-racial local government elections.
Parliament amended the TA to include a provision under which the President was vested with
the power to amend the TA by proclamation. He could only do so provided the Committees
on Provincial and Constitutional Affairs of the Assembly and the Senate consented to the
amendments & the amendments had to be tabled in Parliament and would fall away if
Parliament passed a resolution disapproving of them.
The second applicant (the Premier of the WC) designated the third applicant (the Minister of
local government in the WC) as the competent authority for the administration of the TA for
the WC.
TA (before amendments) provided that after the establishment of provincial government in a
province member of a Provincial Committee would hold office during the pleaser of the
Executive Council of that provincial government & that vacancies would be filled by the
Executive Council. Mr Boraine & Mr Kulsen were members of the Committee. Kulsen
resigned Feb 1995 & in May 1995 third applicant raised the question of Boraine’s membership
3
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