CONSTITUTIONAL LAW
1. CONSTITUTIONAL HISTORY
Setting the scene: the role players in a constitutional democracy
CASE STUDY: EFF V Speaker of national assembly 2016 [CC]
Case deals with: para 1
“unchecked abuse of state power” – In past law was used to affect apartheid. Enforced it
through courts and brutal police force. People could not fight it because there were laws
against protesting/ freedom of speech etc. Therefore, to move away from that we adopted
the constitution.
“severe limits to judicial review during apartheid” – it is now possible for us to review state
power.
Values adopted:
o Accountability- state is held accountable for exercise of power
o Rule of law
o Supremacy of the constitution
EFF 1 CASE BACKGROUND
Nkandhla: Zuma supposedly had security upgrades done at his private residence. Complaint
that the upgrades were in fact non-security upgrades. (E.g.- swimming pool, cattle kraal,
theatre) thus president must pay back coz state only covers security upgrades
Complaints lodged by PP (public protector) in her capacity to report on conduct, hold
braches of state accountable
Remedial action taken by PP:
o Zuma must Pay back a determined percentage of the non-security upgrades
o Reprimand ministers involved in the non-security upgrades
o Report back to national assembly what has happened
Zuma did not comply with the remedial action
National assembly launched its own investigation- and absolved Zuma of any wrong doing.
EFF was not happy with actions of NA and approached con court to resolve the issue
o Wanted confirmation of the legally binding effects of the PP remedial action
o An order directing the president to comply with the remedial action
o An order declaring that both the President and the NA had breached their
constitutional obligations.
Discussion of EFF 1 on facts:
Exclusive jurisdiction of CC why it went straight to con court [dispute on a very high level
between PP, NA, EFF, President]
Order by the court
o 3. Remedial action taken by the PP against President is binding [unless it is set aside
by the court]
, o 4. In not complying with PP’s remedial action, President acted in a manner
inconsistent with the constitution [violated the constitution which he as president
was supposed to uphold- impeachable offence]
o 5-8: president must pay back reasonable cost for on-security upgrades
o 10: the NA’s resolution to absolve president inconsistent with the constitution
Notes from case:
By effectively setting aside the Public Protector's report, the NA acted contrary to the rule of
law by overriding the authority of the judiciary.
The NA's conduct was contrary to its constitutional obligations to scrutinise and oversee
executive action, to maintain oversight of the exercise of executive powers by the President
and hold him accountable, and to assist and protect the office of the Public Protector to
ensure its independence, impartiality, dignity and effectiveness.
Role players in constitutional democracy (legislature, executive, judiciary)
1. National assembly –
Legislative branch (consists of democratically elected individuals who make laws)
Makes legislation and elects President
Part of their duty to hold president accountable and maintain oversight over his
actions [think of trying to vote Zuma out but the ANC holds most of the seats at NA
thus they couldn’t vote him out]
Can challenge findings/ remedial action of PP
2. State president as head of state
And president as head of executive branch
Has the power to put law into action
3. Courts (esp. constitutional court)
Judicial branch
How are judges appointed president appoints them
Relevant role: invalidate conduct or law in conflict with constitution
4. Public protector (PP)
Constitution- Chap 9 institutions= role is to strengthen constitutional democracy
Powers in s182 = can investigate any conduct in state affairs in any sphere of
government, and take appropriate remedial action. [the three things she told him to
do] by overseeing, scrutinizing and holding executive action accountable
Remedial action is binding
,Colonial and apartheid constitutionalism
CONSTITUTIONALISM PRE- 1994
Union constitution of 1910
After British won the Anglo-Boer war, SA became largely under influence of British gov.
British facilitated negotiations that led to the formation of the Union of South Africa in 1910.
resulted in the drafting of South Africa Act (aka union constitution).
The union constitution granted limited parliamentary democracy to the white minority (only
men were allowed the vote). Largely ignored the political aspirations of indigenous South
Africans.
The retention of this very limited franchise for blacks in the Cape did not change the
essentially racist nature of the union constitution.
The Union Constitution followed the British model (Westminster-style) of parliamentary
government and a form of parliamentary supremacy. The Union Parliament consisted of two
Houses, the House of Assembly and the Senate [who had legislative authority].
It retained a system of parliamentary supremacy [limited in 2 ways]
1. All bills passed by the South African Parliament had to be sent to the Governor-
General for assent before they could become law.
These constraints were removed in 1931 by the statue of west minister,
which repealed the colonial laws validity act.
2. Some clauses in the Union Constitution required special procedure before they
could be amended. [entrenched sections = limited franchise for blacks in cape,
equality for 2 official languages]. Could only be altered if the bill was passed by both
houses of parliament sitting together and agreed by 2/3 majority.
Constitutional crisis of the 1950’s [Removal of the “coloured vote”]
In 1951 National Party gov. introduced the separate representation of voter’s bill in parliament, with
the its purpose being removing coloured voters from the common voters roll. passed bicamerally
with normal majority
Harris v Minister of the interior 1952 [Harris I]
Challenged the validity of the above act as it attempted to amend an entrenched provision
of the constitution without following the necessary procedures to do so.
Parliamentary supremacy meant there could be no restrictions on the substance of any
legislation. Only procedural restrictions. [for purposes of the ‘rules of recognition’, to
identify legislation passed by parliament]
Court said this was not a valid ‘Act of parliament’
Government then introduced the high court of parliament bill in 1952. This act tried to override the
authority of the courts by establishing a “high court of parliament” which consisted of every member
of the house of assembly and senate. The act allowed them to review and set aside any past or
future judgement of the appellate division in which the court had declared an act of parliament to
be invalid by a majority vote.
, Minister of the interior v Harris 1952 [Harris II]
High court of parliament act was unanimously declared invalid.
They said that it was not a true court of law instead parliament sitting under another
name trying to do by a simple majority what they could only do by a special majority.
Parliament was not competent to create the High Court of Parliament as it is the job of the
legislature to legislate and not adjudicate
The senate act was passed with the normal bicameral procedures changed the composition of the
senate. This restructuring ensured that the governing party had the required 2/3 majority to amend
the entrenched sections of the union constitution.
Collins v Minister of the Interior 1957
Validity of the senate act and the amendment of the union constitution was challenged
It was declared valid coz the senate act was validly passed using correct procedures.
o The court said that the motive behind the act was not something the court could
enquire into.
The amendment of the union constitution was also done validly with a 2/3 majority.
The dismissal of the appeal in the Collins case marked an end to the constitutional crisis of
the 1950s, and a definite victory of parliamentary supremacy over the constitution.
Exclusion of judicial review: due to parliamentary supremacy, no court of law shall be
competent to enquire into or pronounce upon the validity of any law passed by parliament.
Republic constitution of 1961
South Africa became a Republic in 1961, a new constitution was adopted which confirmed
the supremacy of Parliament. Explicitly excluded the courts from substantive review
Parliamentary supremacy- no court of law shall be competent to enquire into or pronounce
upon the (substantive) validity of any law passed by parliament
o No substantive constraints [court cannot invalidate on substance, only procedure]
o Parliament has monopoly of power [no other organs of state has powers that can
prevail over those of parliament]
However, it may well be argued that it was the combination of this extreme form of
parliamentary sovereignty and the inherently racist nature of the bifurcated constitutional
system which gave the South African state its particularly brutal character before the advent
of democracy in 1994.
Tri-cameral constitution of 1983
By the late 1970s, the apartheid state had come under increasing pressure both internally
and externally as opposition and resistance to apartheid and white minority rule increased
and the struggle for freedom by the black majority gathered momentum
In response they opted for so-called ‘reform’ reincorporate ‘Indian’ and ‘coloured’ under
the apartheid system into the political system.
