CON LAW SEM 1 NOTES
https://openbooks.uct.ac.za/uct/catalog/book/30
CONSTITUTION of 1996 - CONSTITUTIONALISM
SA constitution was adopted by constitutional assembly in 1996 = sovereign democratic state
Constitutional sovereignty > parliamentary sovereignty
Committed to social, economic, political and legal transformation
Principle that gov is bound by doc = constitutionalism
Solves abuse of power (supposedly) constraint on power of the power wielders
However, it may not address or exacerbate certain factors...
Libertarianism: state not involved unless necessary
Liberalism: focus on freedoms that individuals have against state (freedom – noneconomic e.g.
Right to life)
Liberalism creates a static constitution
It especially left us the right to property, which is highly criticized as it stays with who has it and
cannot be given to someone who needs it more or for the better of society (such as in America) -
those who have, keep.
So, SA proposed transformative constitutionalism – make country better, not just the same
What is transformative constitutionalism?
Langa (former con court judge, chief justice): means change, complete reconstruction of state
and society, redistribution of power and resources, eradication of systemic discrimination, solve
problem of inequality (material inequality, economic suffering)
Cannot be achieved without change in legal culture, accept politics of law
It’s a process of reimagining the world
Karl Klare: change institutions and power relations in a participatory and democratic direction
Requires state to get involved – opposed to liberalism and libertarianism
- Social rights and substantial conception of equality:
- -people need social resources to exercise their rights meaningfully
- Affirmative state duties
- -gov must interfere to facilitate and support self-realization
- -positive duty on state to ensure socio-economic welfare
- Horizontality
- -regulates private relationships by making them subject to the Bill of Rights
- Participatory governance
- Participation of citizens at all levels and all stages of decision making
- Multiculturalism
- -celebrate diversity through framework of national reconciliation and ubuntu
- Historical self – consciousness
, - Accepts nothing that democracy must be periodically reinvented as not to follow the notion of
protecting a pre-existing hierarchy
SEPERATION OF POWERS
Divides up the powers and functions of government but gives government the power to check
on and balance out the power of other branches
LEGISLATURE:
- Function: enact law and hold executive accountable
- Personnel: member of parliament
EXECUTIVE
- Function: make policy; implement and administer the law; make crucial appointments
- Personnel: president, deputy president, ministers and their departments
JUDICIARY:
- Function: interpret and adjudicate legal disputes; declare invalid law or acts contravening the
constitution
- Personnel: judges and magistrates
Attempts to remedy abuse created by overconcentration of power in one organ
Counter majoritarian dilemma: the dilemma that another branch of gov can counter the
majority will (we elect the legislature, who are the judiciary to keep them in check as we didt
vote the judiciary in)
In Us, all organs of gov are elected by the electoral, all organs of gov have democratic legitimacy
ours is not as strict as in other democracies
We have an overlap of personnel
In judiciary, there is complete separation of personnel – check both other branches if complying
with constitution
Overlap of executive and legislature called cabinet
JSC regulates judiciary
Chapter 9 institutions: e.g., public protector – prevents corruption
Aspects of law-making public participates when legislature is making laws
Pre electoral system: how we choose members of legislature, MP’s elected through proportional
representation elections, number of seats proportionate to number of votes
Constitutional democracy with a parliamentary system of government
Oversight mechanisms:
- Ministerial responsibility: account for the manner they have performed their duties
- No confidence motions: vote against minster, or all ministers or president
- Impeachment: may remove president on grounds of serious misconduct, incapacity, or serious
violation of constitution or law
- Power to demand evidence: hold hearing to summon evidence and produce documents, receive
petitions, any interested persons or institutions to submit
- Parliamentary committees: do not make binding decisions but provide recommendations to the
legislature
, EFF 1 – had to go to judiciary to hold the executive accountable when that is the legislatures job
due to SOP
Consequence: motion was brought for a vote of no confidence in the Nkandla case
In UDM v Speaker, asked for secret vote, speaker claimed couldn’t grant, con court claimed she
could but only she could so it was her choice however encouraged to do so as MP’s should be
able to vote with conscience and not with fear of what their bosses in executive would do if the
votes no confidence. President survived vote. Resulted in EFF 2.
RULE OF LAW
1. Generally applicable rules
2. Publicized
3. Understandable
4. Retroactive
5. Do not contradict each other
6. Relatively consistent over time
7. Is not physically impossible
8. Administration of law reflects rules announced
Laws must be prospective, reasonably stable and faithfully enforced
Why? Allows people stable basis for planning their own conduct, use to make choices about
their lives, people develop fidelity to law as it has a moral function in their lives
Every act of power is subject to the principle of egality and principle of rationality
Con court establishes culture of justification
Cin this way constitutional review becomes a support of democracy as courts are keeping tabs
on whether the public’s will is being carried out as the elected the legislature
Rationality test
Both the decision-making process and the decision itself must be rational
If any part of the decision-making process will cause the decision to be irrational if it:
1. Bears no rationality to the purpose for which the power was conferred
2. Colours the decision-making process as a whole
The purpose of the exercise of power will be decided by the court. if one defines purpose narrowly then
the rationality test becomes more difficult to satisfy (thin rationality). If one defines purpose more
broadly then the test becomes easier to satisfy (Thick Rationality)
EFF 2
S89 – prerequisites for removing presidents in impeachment cases:
- Serious violition of constitution or the law
, - Serious misconduct
- Inability to perform the functions of the office
Then MAY choose to remove president
Jafta (majority judgment): NA not fufilled obligations ot hold president ot account, hadnt set up
the rules necessary for s89 enjuiry to be held
You need enquiry stage to work out what conditions mean and if they’ve been met
NA needed to decide what those terms mean and failed to do so
Otherwise decision of nA would be made off ignorance
Minority: Zondo DCJ and Mogoeng disagree
State decision could be made through open discussion within NA
S89 well implemented – even without prerequisite
If enquiry needed then can set up an ad hoc committee
DA had already set up ad hoc for previous case, but committee fell away
Jafta ad hoc inadequate, dominated by majority and could be frustrated
S89 requires investigation before continuing to impeach
Zondo: concourt has already done the work, EFF 1 case decided there was violation of
constitution
But requires SERIOUS violation, but enough stuff on paper to show investigation
Enquiry needed to nnot only be factual but legal
What are rules, how interpret and do they cover this case
Jafta wanted to insert legal process
Fulfillment of the oversight obligations
Did NA fufill their obligations
Zondo and MOgoeng said they had been fufilled
Oversight mechanisms:
- Question and answer period, Vote of no confidence, impeachment process
But did they actually interogate? So did they actually fufill obligation?
Jafta: didn’t use ALL the mechanisms, just focused on s89
Hoping it would be a more in depth legal process rather than who has most votes in NA
REMEDY
Mogoeng: p253 onwards: remedy in UDM v this one, chose not to prescribe secret balot in no
confidence vote in UDM
Court encroaching on separate domain of parliament
Breaches seperation of powers to set out requirments
But constitution actually set out requiremnts not the court
I it alarming the more instructoions that the court gives the NA on how to execute its powers?
NA didn’t use all appropriate means to hold president accountable
Wjhycant it use some
Why cant it choose it the na
What substantively is enough to hold president to account
President ddnt actually account what happened – process not good enough to generate
accountability
