This document contains all the necessary information for the module: Constitutional Law 271. It contains all the prescribed work and case law (with case summaries). This document consists of both textbook summaries and class notes. This document is sufficient enough to pass your exam!
1. ROLE PLAYERS IN A CONSTITUTIONAL DEMOCRACY: PART 1: CONSTITUTIONAL
HISTORY, BASIC CONSTITUTIONAL CONCEPTS AND SEPARATION OF POWERS:
EFF V SPEAKER OF THE NATIONAL ASSEMBLY 2016 (CC) [EFF 1]:
• This was a unanimous decision by the Constitutional court.
• Par 1: 'one of the crucial elements of our constitutional vision is to make a decisive break
from the unchecked abuse of State power and resources that was virtually
institutionalised during the apartheid era. To achieve this goal, we adopted
accountability, the rule of law and the supremacy of the Constitution as values of our
constitutional democracy - public offence bearers (like the president) ignore
constitutional obligations at their peril.'
• Unchecked abuse of state power - when we compare the constitutional situation that
we have now with that of apartheid, during apartheid we had parliamentary
supremacy= today we have constitutional supremacy (we have checks and balances in
place to ensure that the state does not have unchecked abuse.
• During apartheid we had parliamentary supremacy - almost all of the power was with
parliament.
• This case is about determining whether or not the president fulfilled his constitutional
obligation or not. (that is why we have judicial review now in terms of the constitutional
supremacy and it is not as limited as it was during apartheid)
• During apartheid the courts were quite limited in their capacities whereas courts now
have more power.
• The case is about whether or not the court can decide the president and the national
assembly did or did not fulfil their constitutional obligations.
• Severe limits to judicial review during apartheid
• Nkandla: the upgrades that were made at Nkandla and whether or not these were for
security purposes or not.
• Complaints with lodged with the public protector and it was alleged that taxpayers
money was being wrongfully used to do these upgrades at Nkandla and that they were
not for security reasons
• The public protector then had to investigate these allegations. The public protector
found that there were upgrades that were not for security purposes (such as the pool,
amphitheater).
• The report also indicated that it was secured in comfort.
• The public protector took remedial action - based on the fact that there were upgrades
which were not for security purposes = remedial action was taken.
, • The first remedial action that the public protector said needed to happen:
1. President zuma had to pay back the money (the public protector said the money
was not used for the right purpose - and because of that he had to pay back the
money
2. The ministers involved - who knew of these upgrades needed to be held
accountable - because they also acted in the wrong
3. The president had to report back to the national assembly within 14 days of
receiving the report (he did this) (out of the three remedial actions that the public
protector proposed he did fulfil the one) (he did not pay back the money and he
did not hold the ministers accountable)
• What did the national assembly do in response to the report: it set up a second ad hoc
committee to further look at the report
1. They also look at the minister of police's report and his investigation into the
upgrades
• The conclusion the ad hoc committee came to was: they endorsed the findings of the
minister of police's report (which basically said that president Zuma was not liable)
• In the end the national assembly absolved the president of all liabilities. (the national
assembly resolved to absolve the president from all liabilities)
EFF 1:
• Background:
o = Nkandla
o = complaints lodged with Public Protector
o = report: "secure in comfort"
o = remedial action taken
o = National Assembly's response
o = EFF approaches Constitutional Court
ROLE PLAYERS IN A CONSTITUTIONAL DEMOCRACY: (BASED ON THIS CASE)
• Because the president did what he did and the national assembly did what they did -
the EFF decided that it was necessary to go to the Constitutional court in order to
provide clarity on the remedial action - that the public protector said needed to happen.
• The constitutional court was approached by the EFF, (That is why the case is called EFF
1)
, • 1. National Assembly (NA): (of parliament)
o They are the Legislative branch of government.
o Who elects members of National Assembly?
• We, the people elect the national assembly. We vote for political parties and
they gain seats. Because we elect the national assembly, the national
assembly then elects the president. Because the national assembly elects the
president - they are also responsible to hold the president accountable.
o National Assembly elects President
o National Assembly must hold President accountable
• 2. State President as head of state: (in this instance = president Jacob Zuma)
o And President as head of executive branch. (the president is the head of the
executive branch)
• 3. courts (especially Constitutional Court) (in this instance the judicial branch is the
constitutional court)
o Judicial branch
o How are judges appointed?
• Judges aren't elected by the people as the national assembly, they are
appointed - they have to go through a whole process = we don't choose/elect
them as we choose the national assembly.
o The Relevant role in this instance is to invalidate conduct or law in conflict with
Constitution.
• The constitutional obligations of the national assembly and the president -
they have to determine whether or not conduct/law is in conflict with the
Constitution
• 4. Public Protector (PP):
o The public protector falls under Chapter 9 institutions = strengthen constitutional
democracy
o Powers in section 182: can investigate any conduct in state affairs in any sphere of
government, and take appropriate remedial action
• This section of the Constitution makes clear is that the public protector may
take appropriate remedial action as he did in the report
• The public protector is constitutionally allowed/mandated to take
appropriate remedial action.
DISCUSSION OF EFF 1 ON FACTS:
, • The first issue that the court had to deal with whether or not the Constitutional court in
this instance had its jurisdiction: Exclusive jurisdiction of CC - the court referred
specifically to section 167 of the Constitution which says: only the constitutional court
may decide that parliament of the president has failed to fulfil constitutional obligations
(the mandate of the constitutional court specifically identified in the Constitution)`
• In this instance the court decided that it was necessary to determine whether or not it
had exclusive jurisdiction with regards to the application against the president, but also
separately whether or not it had exclusive jurisdiction with regards to the application
against the national assembly. (it separated the two)
• Exclusive jurisdiction means that the constitutional court in this instance is the only
court which can hear the matter (one of the lower courts will not be allowed to hear on
this matter)
• Section 167 of the Constitution: only the constitutional court may decide that
parliament or the president has failed to fulfil its constitutional obligations.
• The constitutional court needs to hear matters specifically related to the parliament or
the president and their constitutional obligations.
• In this instance the court determined that it was necessary to look at the application
against the president whether or not it had exclusive jurisdiction in that specific instance
and also whether or not it had exclusive jurisdiction with regards to the application
against the national assembly. (two instances in which it had to be determined whether
or not exclusive jurisdiction was held by the constitutional court)
o What did the court decide on this specific instance: the court found that on both
instances it did have exclusive jurisdiction. With regards to the application against
the president the court found that it did have exclusive jurisdiction and then also
with regard to the application against the national assembly the constitutional
court also found that they had exclusive jurisdiction.
o When looking at determining whether or not the court had exclusive jurisdiction
against the application against the president, the court found that virtually all the
president's obligations are constitutional in nature, because they have their origin
in the constitution. The constitution creates obligations for the president and it
also creates specific obligations for him as president. (not for anybody else but
specific constitutional obligations for the president alone)
o For the national assembly the court said the following: if holding the executive
accountable, a primary and undefined obligation imposed on the national
assembly. (the court found it affirmative) (the national assembly is responsible to
hold the president accountable)
• Legal nature of remedial action:
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