Summary
Constitutional Law summary
- Course
- Constituional Law 271
- Institution
- Stellenbosch University (SUN)
Summary of 21 pages for the course Constituional Law 271 at SUN
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Constitutional Law 271A2 Prep
Cases and legislation
# Rhyme Case What it was about
1 Economic - The vision for our constitutional vision is to make a
Freedom decisive break from the unchecked abuse of State power
Fighters v and resources that institutionalized during the Apartheid
Speaker, era.
National - To achieve this we adopt, accountability, the rule of law
Assembly and and the supremacy of the Constitution.
others (EFF 1) - Constitutional supremacy vs Parliamentary supremacy.
- The CC must decide whether the President fulfilled his
constitutional duties or not.
- Background:
Complaints were lodged with the Public Protector
that taxpayer’s money was being used to do
upgrades at Nkandla not for security reasons.
PP investigated and found that the upgrades
weren’t for security reasons.
The PP took remedial action whereby (1) President
Zuma was ordered to pay back the money. (2) The
ministers involved in upgrades must be held
accountable and (3) the President had to report
back to NA within 14 days.
Zuma only fulfilled 1 of these actions – Zuma
reported to the NA within 14 days.
The NA set up an adhoc committee to further look
at the report including that of the minister of police.
The conclusion endorsed findings of the Minister of
Police President Zuma not liable. As such, the NA
resolved president of all liability.
The EFF approached the CC for clarity on the
remedial action of the PP.
Section 182 and 167 are important in this case.
The CC has exclusive jurisdiction in terms of the
president.
Holding the executive liable is imposed.
- Court’s order:
The remedial action taken by the PP against the
president is binding.
In not complying with the PP’s remedial action, the
President acted in a manner inconsistent with the
Constitution.
The president must pay back the reasonable cost
for the non-security upgrades.
, The NA’s resolution to absolve the president is
inconsistent with the Constitution.
- Separation of powers:
The court found that the NA had failed in its
constitutional duty to hold the executive
accountable.
The executive wasted tax money in performing
upgrades to the president’s home, and then did not
comply with the Public Protector’s remedial action.
The NA made their own ad hoc committed which
set aside the Public Protector’s report.
After this judgement, a motion of no confidence
was instituted by the DA in terms of S89, but failed.
Another motion of no confidence in terms of S102
also failed.
2 Harris I - The courts successfully challenged parliament.
- Courts had power to invalidate any act repugnant to the
Constitution, or not passed in accordance with procedural
requirements.
- If Parliament wanted to amend the Constitution, the had to
follow the special procedure.
- The court found that the entrenched provisions were still
binding.
- The court questioned whether the Act was truly an act of
Parliament.
- Unless the Parliament passed legislation in conformity
with the Constitution, the bill could not be considered an
Act of Parliament.
- High Court of Parliament Act 1952.
- This meant that parliament could either sit as Parliament
or as the High Court of Parliament.
- The High Court of Parliament could review and set aside
any past or future decision of the appellate division which
invalidated an Act of Parliament.
- The High Court of Parliament found Harris I as invalid and
set it aside and upheld the 1951 Act.
3 Harris II - The Appellate division challenged the High Court of
Parliament Act of 1952.
- The court argued that it was not a true court of law, it was
merely parliament sitting under a different name.
- While Harris I was decided on procedural ground, Harris II
involved a structural understanding of the difference
between role of the court and of parliament.
- The challenge was successful.
- Parliament did two things:
Restructured the Senate. They enlarged the senate
to make it 89 members, previously was 48
members. They also decreased the number of
, seats of opposition from 19 to 12. Senate sitting
with the house of assembly meant NP had 2/3
majority and could therefore amend the entrenched
provisions.
Parliament increased the size of the Appellate
division when hearing cases involving the validity of
an Act of Parliament. Parliament increased size to
11 judges. This was known as court packing. Lead
to accusations of court packing as judges likely
appointed to give a decision in favour of the NP.
- Parliament passed South African Amendment Act 1956.
They followed the correct procedure with both houses
sitting together with 2/3 majority and therefore
successfully removed coloured people from the common
voter’s roll.
4 Collins - The Amendment Act was valid and must be upheld, there
was a 10-1 majority. The minority judgement was
delivered by Justice Schreiner.
- The motive behind the act is not something the courts can
enquire into because of parliamentary supremacy.
Because the amendments complied with the procedure it
must be accepted as valid.
- No reason to view the new senate as not a real senate.
- Schreiner referred to the motive of the act. Where there is
a legislative plan to do indirectly what the legislature has
no power to do directly cannot be valid – amendment act
should not have legal force or effect.
This case marked the end to the constitutional crisis and a
definitive victory of parliamentary supremacy over the
Constitution.
5 Ex parte - The CC had to determine whether the final text complied
chairperson of with the 34 Constitutional Principles.
the - The Constitutional Court had a judicial and not a political
Constitutional mandate. They were performing a legal exercise.
Assembly: in - The CC used a holistic approach: should look at the
Re certification principles as a whole and how they interlink and not
of the technically rigid in determining compliance. The court had
Constitution of to look at the basic structures and premises in line with the
the RSA (first constitutional principles.
judgement) - After the court was satisfied that the basic structures in
line with the 34 principles were complied with the court
could then look at the text of the final Constitution.
- Once the CC certified the final text, compliance or non-
compliance with the 34 principles could never be argued
in a court of law again to challenge a constitutional
amendment.
- Objections against the substance of the constitutional text:
Objection in relation to the inclusion of socio-
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