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Summary Constitutional Law in South Africa - notes & summaries

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Course
Constitutional Law (PBL2000)

Institution
University Of Cape Town (UCT)

Book
Constitutional Law in Context

Full years notes for Constitutional Law from a UCT student. Covers all aspects of Con Law including lecture notes, case summaries, text book summaries and exam prep. In bullet point format and cites all relevant authority.

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constitutional law
con law
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constitutional law in south africa
south africa constitutional law
south african constitutional law
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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

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