Very comprehensive & in detail lecture + textbooks notes made for Constitutional Law 271 in Semester 1 of 2022. The notes contain all class notes, lots of textbook readings, tutorial guidance and brief case summaries.
1. Setting the scene: The role players in a constitutional
democracy
Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3)
SA 580 (CC) [EFF 1]
Role player in a Constitutional Democracy : EFF 1 as a case study
• Unanimous judgement = all judges agreed
• Important values highlighted by the court:
o Accountability
o Rule of law = president has to act within the bounds of the CT
o Supremacy of the CT vs parliamentary sovereignty
• Unchecked abuse of power exercised during Apartheid
o Nobody is above the law
o Shares link to judicial review
• Severe limitation during Apartheid (Collins & Harris cases)
• Courts in no position to hold the president & apartheid
government accountable for their actions
• Provides our courts, specifically CC, with the power to declare
any legislation invalid if inconsistent with the CT & also applicable
to power or acts of the president and the executive
• Centre of EFF 1:
• Ability of the court to say that the president + assembly did not fulfil
Constitutional obligations
• Court in position to provide remedy
• LEGAL AFFECT OF THE POWERS OF THE PUBLIC PROTECTOR!!
o Is the remedial action's binding?
COLONIAL AND APARTHEID CONSTITUTIONALISM
2. The historical-legal context: from colonial conquest to
democracy
• SA's political history began in 1652 - JVB arrived @ Cape & colonisation formally
commenced?
• SA's constitutional history began in 1910 - Union of SA & passing of South Africa Act
(Union Constitution) by the British Parliament?
o COLONIAL APPROACH/LENS = ignores Khoi-San-speaking hunters & herders who
already occupied some parts of the country
o But when discussing historical context out of which modern democratic SA emerged
= rely on COLONIALLY imposed markers. But why?
• Pre-colonial history not written down
• Insufficient evidence on governing structures of indigenous people of SA
• SA w/ current borders = legally came into existence only in 1910
o Conclusion = various lenses through which SA legal + political history can be viewed
& cannot ignore the legal pluralistic nature of SA society and legal culture when
discussing historical context out which the 1996 CT emerged
• Pre-Union developments
,Constitutional Law 271 2022
Semester 1 Notes
• Pre-union governance structures = still have an effect on SA's democratic constitutional
order
• From 17th century - many centrally governed societies w/in SA territory
o Cape + Natal colonies = development of constitutional models mirrored those of
other British colonies w/ European settlers
• Eventually became colonial territories which locally elected executives
governed, subject to British-appointed Governor-General = power to approve
legislation
• GG = veto power (advised by British govt.) over bills
• British Govt. = power to disallow & nullify bills passed by colonial legislatures
• Government structures = Westminster system
• Westminster system = principle of supremacy of the legislature
▪ Legislature had free power to pass any legislation it wish as long as it
followed the required procedures
▪ Courts did not have testing power & could not test legislation against a
Bill of Rights & declare laws to be invalid if infringed on citizen's liberties
= NO JUDICIAL REVIEW
o Two Boer Republics (Orange Free-State + Traansvaal Republic)
• Rejected Westminster system
• Form of governance based on the principle of the separation of powers w/
directly elected presidents
• OFS = Bill of Rights that guaranteed rights of peaceful assembly, petition,
property and equality before the law
▪ Recognized judicial review but not used
▪ Limited protected of the Constitution = reserved for white males only
▪ Early constitutionalism = by notion of racial citizenship
• Transvaal = Constitution made by Legislature (Volksraad) = RACIST
▪ 'People desire to permit no equality b/ween coloured people and white
inhabitants, either in Church or State'
▪ Judicial review = attempt to strike down legislation on basis that it was in
conflict with the Constitution = created a constitutional crises
• President then rejected right of court to review + strike down
legislation
• Condemned judicial review
• As British extended their colonial domination indigenous South Africans subjected to
authority of colonial powers = colonial governments became primary source of
traditional leader's authority
o Glen Grey Act
• excluded majority of Africans from Cape Parliament in Cape Colony
• Weakened power of system of chiefs
• Created separate 'reserve' areas where African's were supposed to stay
if not selling labour to white-owned institutions in cities
• Sped up dispossession of indigenous land
• Assigned areas for use of blacks and other areas for use of whites
• Act = forerunner of segregationist and apartheid measures
• Native Affairs Commission
• Vision for future of SA to be based on territorial segregation as
permanent mandatory feature of public life
• Created 'native reserves'
▪ Held communally & administered by tribal chiefs who "transferred
rights over land and political authority to the Crown through
process of peaceful annexation"
• "peaceful annexation" = served interests of colonial rulers
• These developments set scene for the formation of a bifurcated state when
various territories unified into the Union of SA in 1910 & precursor for
Apartheid
• The Union of South Africa and the bifurcated state
,Constitutional Law 271 2022
Semester 1 Notes
• British defeated Boer republics in Anglo-Boer war = South Africa came under influence of
British Govt.
• British & white colonists = negotiations = South Africa Act / Union Constitution
o South Africa Act brought together 4 settler colonies = Natal, Cape OFS & Transvaal
+ indigenous groupings into a single unitary state = Union of SA
o Union CT = limited parliamentary democracy to white minority = only men allowed to
vote & subjugated black majority to autocratic white rule
o BUT compromise in the Cape for retainment of limited voting rights for black citizens
• Other provinces allowed to exclude all participation from black South Africans
o Constitution = essentially racists and paternalistic nature
• African society governed by chiefs under paternalistic 'protection' from white
govt.
• GG given all powers in regard to native administration ito Union CT
• Colonialism established a Westminster-style parliamentary system
o Pseudo-democratic white state co-existed with an authoritarian order under which
majority of the country lived under system of indirect colonial rule
o 1910 - 1994 = bifurcated nature of South African state
• Union CT followed British model of parliamentary supremacy
• Legislative authority belonged to bicameral parliament
• House of Assembly & Senate
• Members of house of assembly directly elected by limited number of male citizens
who had right to vote
• Senate indirectly elected by House of Assembly
• Unitary system, not a federal system
• 4 Colonies = provinces
• Provincial powers very limited. Could not be in conflict with the national government.
Could only come into effect with the Union cabinets assent.
• Parliamentary supremacy
• Parliament could make and repeal laws without substantive constraints - tyrannical
• Had monopoly of power.
• No other organ of state had power that could overthrow parliament. All other
legislative bodies, including courts, subordinate to parliament.
• Court had limited reviewing power = did not concern themselves with the substance
of the law, rather just that the correct procedures were followed.
• Motivated a racially exclusive democracy
• Lead to marginalization of black majority
• (In Britain, celebrated feature because parliament was elected by ALL the people
and did not just represent country's minority contrary to the reality in SA)
• However, parliament restrained in 2 important ways which imposed limits on its
sovereignty
EXTERNAL CONSTRAINTS
British Parliament adopted Statute of Westminster = Parliament still bound by
provisions of Colonial Laws Validity Act
Meant that Union Parliament could not legislate extraterritorially or
In a manner repugnant to any Act of British Parliament which had been made
applicable in SA
All bills passed by SA Parliament had to be sent to GG (British representative)
for assent before it could become law
Statute of Westminster repealed Colonial Laws Validity Act
No Act of British Parliament would extend to a dominium (like the Union)
without its consent
INTERNAL CONSTRAINTS (procedures in passing, amending CT)
1909 Constitution could be amended by ordinary procedures
• EXCEPT THE ENTRENCHED PROVISIONS :
• S35: Protection of Non-racial franchise in Cape and Natal (limited votes for
non-whites)
, Constitutional Law 271 2022
Semester 1 Notes
• S137: Equality of 2 official languages (Dutch and English)
• S152: To amend S35, S137, both houses must sit together and agree at
third reading of amendment bill by 2/3 majority = higher threshold in
order to amend these provisions
• Despite protection of limited franchise, all African voters removed from the common
voters' roll in 1936
With passing of Statute of Westminster in 1931, which removed external constraints, Union
government believed it was no longer bound by internal constraints.
• Can now amend entrenched provisions, no longer constrained.
• Removed entrenching of coloured voters = no persons of colour allowed in the vote =
have rise to constitutional crises of 1950s
3 cases:
Harris v Minister of the Interior 1952 (2) SA 428 (AD) (Harris I)
Minister of the Interior v Harris 1952 (4) SA 769 (A) (Harris II)
Collins v Minister of the Interior 1957 (1) SA 552 (A)
• Union's constitutional crises in the 1950s
• Arose after NP won parliamentary election in 1948 & imposed absolute racial segregation
• 1951 - NP attempted to remove 'coloured' voters from voters' roll by adopting the Separate
Representation of Voters Act
• Procedure in passing the bill:
o Both houses sitting separately (bicamerally). HAVE TO SIT TOGETHER
WHEN DEALING WITH ENTRENCHED PROVISION
o Simple majority. CAN ONLY AMEND WITH 2/3 MAJORITY.
o = did not follow S152 which deals with entrenched provisions
• Voters challenged Act on basis of S152 of the Union CT & that parliament passed the
amendment with the wrong procedure = Harris and Others v Minister of the Interior and
Another
• Unanimous AD = Amendment successfully challenged in Harris I because it was
not passed procedurally correct = act could not be recognized as act of
parliament.
Response to Harris I : High Court of Parliament Act (Parliament disguised as a Court)
Parliament created a High Court of Parliament (House of Assembly + Senate)
Normal parliamentary sitting, bicameral
• 2 houses sitting separately
• Act passed with simple majority (50%)
POWER: Review and set aside any pass or future judgement of the AD which invalidated an Act
of parliament
= apex of parliamentary tyranny
• Could vote with 50% majority and override court decisions
Harris II
HC of Parliament declared Harris I as INVALID & upheld Separate Representation of Voters Act
= Challenged in Harris II
• AD invalidated High Court of Parliament Act
• Not a true court of law, parliament assuming power of a court
• Comparison between the two Harris cases: Harris I concerned with procedural grounds,
Harris II involved a structural understanding of the difference between Parliament and
courts
• Reaction to Harris II case
Restructured Senate (Senate Act through amendment of the Constitution)
= old senate had 48 members = 29 NP supporters & 19 opposition
NEW SENATE: 89 members = 77 NP supporters & 12 opposition
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