Constitutionalism Additional Material

CSL2601 – Additional introductory material
CONSTITUTIONALISM IN SOUTH AFRICA
Constitutionalism has been described as a “complex” and “rich” theory of political

organisation.1 This description is particularly true for South Africa, where the constitutional
order is premised on a number of explicit and implicit features, representing the country’s
commitment to constitutionalism. Devenish asserts that constitutionalism as the basis of the
operation of the 1996 Constitution has a cogent moral basis. He goes on to state:
This moral basis has its genesis in the ethical content of teachings and principles of the major religious
traditions and philosophies of civilisation of both the east and the west, as well as in indigenous values
like ubuntu. It does, however, reflect a secular morality that has a strong element of universality about it
and therefore can be adhered to by all the disparate communities of the South African nation. 2
The form which constitutionalism takes in South Africa is primarily autochthonous which has
its roots in indigenous ideas, principles and experiences. Such a brand of constitutionalism
reflects African concepts like ubuntu but also includes western concepts such as the rule of
law and the independence of the judiciary. 3 While the Constitution does not refer to a
constitutional state, South Africa has incorporated numerous (actually all) features of
constitutionalism in its constitutional system and the principles of the constitutional state
concept are clearly evident in decisions of the Constitutional Court. These features, which will
be discussed separately hereunder, are as follows: (a) constitutional supremacy; (b) the rule
of law; (c) Bill of Rights; (d) democracy (e) accountability, responsiveness and openness; (f)
separation of powers (and checks and balances); (g) an independent judiciary; (h) co-
operative government and devolution of power. Significantly, all of these features are
justiciable in that they are enforceable by a court and law and conduct inconsistent with them
are unconstitutional and invalid. These basic features give shape to the Constitution, forming
a framework within which the new constitutional order is to operate and therefore influence
the interpretation of the Constitution and the Bill of Rights. 4
The elements of constitutionalism in South Africa

(a) Constitutional Supremacy
Constitutional supremacy entails that the rules of the Constitution have priority over any other
rules made by the legislature, the executive and even courts and are firmly binding on all
branches of the State and private individuals. 5 According to section 2 of the South African
Constitution, the further consequence of constitutional supremacy is that the obligations
imposed by the Constitution must be fulfilled and that any law or conduct that does not
comply with the Constitution – procedurally or substantively – will be declared invalid to the
extent of its inconsistency with the Constitution and will accordingly not have the force of law. 6
Supremacy of the constitution is guaranteed by its entrenchment. Thus, Parliament may not
amend the constitution without following special procedures and without the support of special
1
Finn Constitutions in Crisis 28, as quoted in Devenish The South African Constitution (2005) 33.
2
As above 436 – 437.
3
As above 437.
4
I Currie & J de Waal The New Constitutional and Administrative Law Volume 1 (2001) 73.
5
Section 8 of the Constitution of the Republic of South Africa, 1996.
6
See in this regard the case of Executive Council of the Western Cape Legislature v President of the Republic of
South Africa 1995 (4) SA 877 (CC) para 62. See also section 172 of the Constitution which provides that a court
with jurisdiction to do so ‘must declare that any law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency’.
majorities.7 Section 74 of the South African Constitution regulates any amendment to the
constitution.
The supremacy of the Constitution is reinforced by virtue of the fact that the courts are not the
only way to enforce the provisions of the Constitution, notwithstanding the justiciability of the
Constitutional provisions. The State institutions created to support constitutional democracy,
as outlined above, play the important role of preventing the abuse of power and protecting
and enforcing human rights and upholding the Constitution. 8
(b) The Rule of Law

By way of introduction, the rule of law may be described as inherent institutional morality. It
stems from the desire to prevent anarchy and limit the abuse of power. Jean-Jacques
Rousseau,9 a political philosopher, was a major proponent of the significance of the law to
constrain State power. As Rousseau poignantly stated: “[…] The first of all laws is to respect
the laws”.10 This statement has now become synonymous with the rule of law doctrine. The
primary role of the rule of law doctrine is to provide procedures to be followed by government
bodies when individual rights are limited. 11 In this regard the rule of law may also be equated
to the principle of legality which requires that in addition to legal authority for state action, that
the law in terms of which state acts must be general, prospective and clear and relatively
stable. However, the principle of legality does not directly address the substantive content of
most laws or their human rights implications and this is considered to be a severe
shortcoming.
In his work Introduction to the Study of the Law of the Constitution in 1885, AV Dicey used the
term “rule of law” to entail the following:
(a) Nobody may be deprived of rights and freedoms through the arbitrary exercise of wide
discretionary powers by the executive – it may only be done by ordinary courts deciding that a
person has breached a legal rule. In terms of this no person could be punished unless there
had been a breach of the law.
(b) Equality before the law. Accordingly, nobody is above the law and everybody is subject
to the jurisdiction of ordinary courts.
(c) In Britain the rights of individuals are protected by decisions of ordinary courts and not by
guarantees contained in a constitution. However, in South Africa (and in many other
jurisdictions), a judicially enforceable bill of rights provides better protection to the individual
than a system in which the “sovereignty or parliament” forms the basis of constitutional law. 12
Dicey’s formulation of the rule of law has been rephrased by, amongst others, Mathews, 13
who holds:
(a) in a decent society the idea that the state should wield arbitrary power over the individual
is unthinkable;
(b) all persons, including government officials, are equally responsible to the law;
7
These special procedures and majorities are provided in section 74 of the Constitution of the Republic of South
Africa, 1996.
8
Currie & de Waal (note 4 above) 74.
9
(1712-1778).
10
Quoted in Currie & de Waal (note 4 above) 75.
11
IM Rautenbach & EFJ Malherbe Constitutional Law (2009) 5th ed 10.
12
As above.
13
A Mathews ‘A bridle for the unruly horse?’ 1964 SALJ 316.
(c) effective judicial remedies afford the individual greater protection than constitutional
declarations.
South Africa has incorporated the doctrine in section 1 of the Constitution. In the South
African context the rule of law is said to mean that the government must have authority
provided by a law for everything it does, regardless of the procedural or substantive qualities
of that law. This implies that the branches of the state must obey the law; and the State
cannot exercise power over anyone unless the law permits it to do so.
It can therefore be said that the primary purpose of the rule of law is to protect basic individual
rights and it is for this reason that it has been stated as part of the founding values in the
Constitution. This reinforces the role and function of the Bill of Rights which is to limit the
exercise of power by defining the limits of legislative freedom. 14
South African courts have provided little guidance on the meaning of the rule of law. In the
pre-democratic era our courts avoided referring to the concept altogether but in the new
dispensation, our High Courts have referred periodically to the rule of law although they have
made no attempt to define it. The Constitutional Court, on the other hand, has made decisive
use of the principle in a number of cases. The rule of law has been invoked in respect of the
right not to be deprived of personal freedom arbitrarily and without just cause and not to be
detained without trial,15 the independence of the judiciary, 16 the principle against self-help 17
and the principle that legislatures and executives may exercise no power or perform no
function beyond those conferred upon them by law (formal legality). 18
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council was
the first case in which the Constitutional Court looked at the rule of law to assess the
constitutional validity of legislation. The Court stated that the rule of law, to the extent that it
expressed the principles of legality, was fundamental to constitutional law since the rule of law
includes at a minimum the principle of legality. 19 The Court held that section 24 of the interim
Constitution relating to administrative action did not apply to legislation made by local
government, as their power to make laws were constrained by other provisions in the
Constitution. The principle of legality requires that not only must the state not act ultra vires
but that the state must derive its power from the law. Accordingly, the principle of legality
prevents organs of state from using their power without being authorized to do so by the law.
The underlying rationale is that whenever an organ of state exercises its power it must be
authorized by the Constitution or other laws. This prevents organs of state from using their
power without authority. The Constitutional Court made it clear that the rule of law applies to
organs of state including everyone within that organ. 20
In the case of New National Party v Government of the Republic of South Africa,21 the
Constitutional Court had to deal with provisions in the Electoral Act 73 of 1998. The Act
14
M Cheadle et al South African Constitutional Law: The Bill of Rights (2002) 2.
15
De Lange v Smuts NO 1998 7 BCLR 779 (CC), para 43.
16
As above para 59.
17
Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC), paras 11 and 17.
18
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 (1) SA 374 (CC)
paras 56-58.
19
Legality requires the government, the legislature and the court to act in accordance with the legal principles
and rules that apply to them.
20
See in particular, paragraphs 56 to 59 of the judgment.
21
New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC).
required voters to prove their identity and citizenship by means of a green bar-coded identity
document. The statistics illustrated that 80% of the voters had the required identity
document, 10% had no identity documents at all and the other 10% were in possession of an
identity document, however this was not a green bar-coded identity document issued after
1986 that the Electoral Act required. 22 The Court held that Parliament was empowered by the
Constitution to require voters to identify themselves as this was in keeping with the
Constitution’s provision of a national common voter’s roll and for a free and fair election.
However the Constitution placed a restriction on Parliament. The Constitution required that
there be a rational relationship between the scheme which Parliament adopts and the
achievement of a legitimate government purpose. Parliament cannot act arbitrarily, as to do
so would be inconsistent with the rule of law. The absence of a rational connection would
result in the measure being unconstitutional. The court’s decision was that it was rational for
Parliament to insist on the use of a bar-coded identity document as there would be less
confusion amongst the electoral officers. Further this was easier and quicker and more
secure, especially since the bar-coded identity document required the fingerprints of the
holder to be registered. Most importantly, in light of South Africa’s past, the Court held that
the use of the bar-coded identity document did not offend anyone as there was no reference
to race and accordingly there was a rational connection between the law and the measures
taken.
In Pharmaceutical Manufacturers Association of SA: In re: Ex parte President of the Republic

of South Africa,23 Chaskalson P (as he then was) stated that:
it is a requirement of the rule of law that the exercise of public power by the executive and other
functionaries should not be arbitrary. The decisions must be rationally related to the purpose for
which the power was given or they are in effect arbitrate and inconsistent with this requirement. It
follows that in order to pass constitutional scrutiny the exercise of public power by the executive and
other functionaries must, at least, comply with this requirement. If it does not, it falls short of the
standards demanded by our Constitution for such action. 24
The Court continued to state that the test to determine whether a decision is rationally related
to the purpose for which the power was given is an ‘objective test’. What this means is that
as long as a functionary’s decision is objectively rational, a court cannot interfere with the
decision because it simply disagrees with the decision. However, in this case the Court came
to the conclusion that the decision of the president to bring into force an Act of Parliament
prior to the necessary regulatory framework having been put in place was irrational and
therefore invalid.
It has also been held that vague laws and even laws that are directed at specific individuals
only may also be declared invalid as they violate the procedural aspect of the rule of law and
disable a person from conforming their conduct to the law. For example, in the case of
President of the Republic of South Africa v Hugo,25 Mokgoro J declared:
The need for accessibility, precision and general application flow from the concept of the rule of law.
A person should be able to know of the law, and be able to conform his or her conduct to the law.
Further, laws should apply generally, rather than targeting specific individuals. 26
22
As above para 30.
23
Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte President of The Republic of
South Africa And Others 2000 (2) SA 674 (CC).
24
As above para 84.
25
President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).
26
As above para 102.
The definition of the rule of law as set out by Chaskalson P in the Pharmaceutical
Manufacturers case illustrates the significance of the doctrine for adherence to procedural
and substantive requirements by those who exercise any form of power:
It acts as a constraint upon the exercise of all power. The scope of the rule of law is broad. It has
managed to justify – albeit not explicitly – a great deal of the specific content of judicial review,
such as the requirements that laws as enacted by Parliament be faithfully executed by officials;
that orders of court should be obeyed; that individuals wishing to enforce the law should have
reasonable access to the courts; that no person should be condemned unheard, and that power
should not be arbitrarily exercised. In addition, the rule of law embraces some internal qualities of
all public law: that it should be certain, that is, ascertainable in advance so as to be predictable
and not retrospective in its operation; and that it be applied equally, without unjustifiable
differentiation.27
(c) Bill of Rights

The South African Bill of Rights 28 is not only one of the most progressive in the world, but it
is also entirely justiciable, hence the fact that any affected person may approach a
competent court alleging that a right in the Bill of Rights has been infringed and the court
must remedy such violation.
The South African Bill of Rights is also notable for the fact that it includes all categories of
human rights that are ordinarily included in most international human rights instruments. 29 In
other words, the Bill of Rights provides for civil and political rights; socio-economic rights as
well as cultural rights all on an equal footing, subject to minor differentiations with regard to
enforcement where available resources are a factor which could potentially impede the
realisation of that right.30
(d) Democracy
Democracy is one of the core values upon which the new constitutional order is based.
Democratic theory revolves around a central respect for human worth and dignity.
Democracy is referred to as a political unit governed ultimately by all its members, usually
characterised by a spirit of social equity. The following features are widely regarded as
indispensable to democratic government: free and regular elections (usually once every four
or five years); a multiparty system; universal suffrage, which means that all citizens above a
certain age have the right to vote; the protection of minorities; and mechanisms to ensure
the accountability of government to the electorate.
In addition to the preamble, which makes three references to democracy, the principle of
democracy is referred to many times in the Constitution. The sections where democracy is
referred to are: 1,31 7, 36, 39, 57, 59, 61, 70, 72, 116, 118, 152, 160, 195, 234, 236, and the
whole of Chapter 9.
27
Pharmaceutical Manufacturers para 38.
28
There are numerous publications dealing specifically with the South African Bill of Rights. A non-exhaustive
list includes P de Vos et al South African Constitutional Law in Context (2014); I Currie & J de Waal The Bill of
Rights Handbook (2005); M Cheadle et al South African Constitutional Law: The Bill of Rights (2002); A
Govindjee et al Introduction to Human Rights Law (2009).
29
J Mubangizi The Protection of Human Rights in South Africa: A Legal and Practical Guide (2004) 71.
30
For example, section 26(2) and 27(2) of the Constitution place the constitutional duty on the state to ‘take
reasonable legislative and other measures’ to achieve the ‘progressive realisation’ of such rights.
31
“The Republic of South Africa is one, sovereign, democratic state founded on, amongst others, the values of
‘universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness”.
An explicit obligation is placed on government to observe the principle of democracy when it
governs. It must be recalled that no one has a divine right to govern others and as such, a
government is legitimate only if it has the consent of the governed. 32 In this sense the
Constitution is talking about a government based on the will of the people and not based on
power. This is one of the defining characteristics of a democracy, notwithstanding that
democracy is not defined in the Constitution and neither does the Constitution provide an
exhaustive list of the requirements the principle imposes. 33
Within the preamble, the expectation is created that the commitment to democracy will
permeate all social relations and inform all South Africans’ dealings with each other. 34
Furthermore, with reference to the phrase ‘the adoption of the Final Constitution is intended to
serve the purpose of build[ing] a united and democratic South Africa able to take its rightful
place as a sovereign state in the family of nation’, the argument can be made that this will
enable South Africa to make a contribution to the global struggle for democracy, social justice
and the advancement of human rights. 35
The five specific forms of democracy which are in functional existence in South Africa are
representative democracy; participatory democracy; direct democracy; multi-party democracy
and constitutional democracy. Each of these will be discussed in turn.
(i) Representative democracy

Representative democracy is that the people (that is, every citizen above the age of 18 who is
not otherwise disqualified from voting) should participate in politics through their duly
appointed, elected representatives (who will accordingly express the will of the people). A
representative democracy is created via the process of elections. These elections should be
held at regular intervals, and reasonably frequently. Elections are also always constrained by
franchise rules and the division of electoral districts. The South African Constitution regulates
elections through provisions relating to the electoral system and the mandates of
representatives; and provisions dealing with political parties.
A primary aim of the Constitution is to establish and safeguard a representative democracy.

The Constitution explicitly acknowledges the value of allowing the people themselves to
participate in government decisions that affect them through their elected representatives.
The starting point in a discussion on representative democracy in South Africa is section 19 of
the Constitution (political rights), which is divided into 3 subsections, as follows: section 19(1)
– “every citizen is free to make political choices”. This freedom right ensures that citizens
may choose the political cause or party of their choice. However, this provision does not
entitle a person to participate in any particular political activity. 36 Section 19(2) – “the right to
free and fair elections” grants people the right to vote. Accordingly, the Constitutional Court
stated in the New National Party37 case that ‘the right to vote is indispensable to, and empty
32
33
As above.
34
Currie & de Waal (note 4 above) 14, note 60.
35
See Kaunda & Others v President of the Republic of South Africa & Others 2005 (4) SA 235 (CC) at para 22.
36
Currie & de Waal (note 4 above) 83. That this specifically means is that if the internal constitutions of political
parties constrain members of political parties or other individuals from participating in decision-making, section
19(1) will not afford any rights. Therefore, it will not enable applicants to challenge a party’s admissions criteria
or internal decision-making procedures or its disciplinary procedures.
37
New National Party para 12.
without, the right to free and fair elections’. This right obliges the government to make proper
arrangements for free and fair elections. Section 19(3) guarantees the existence of the right
to vote and also provides for the right to stand for election to public office. Every citizen who
is qualified to vote for the National Assembly is eligible to be a member of the Assembly or a
provincial legislature.
The New National Party38 case laid down a test to determine whether regulation of the right to
vote is constitutional. Firstly, Parliament must act rationally when it regulates the right to vote.
Secondly the electoral scheme must not infringe any of the rights provided for in the Bill of
Rights. Parliament is required to ensure that those citizens who are eligible to vote are able
to do so if they take reasonable steps in pursuit of exercising their right to vote. Therefore, in
this case, the Court held that the legislative requirement that prospective voters identify
themselves with a green bar-coded identity document was a rational measure aimed at
ensuring the fairness of the election and that it did not impair the right to vote in the Bill of
Rights since people who wanted to vote had enough time to apply for the document. 39
The right to vote is invariably limited by excluding certain classes of people from voting. For
example, the Constitution restricts the right to vote to ‘adult citizens’. This term is defined in
the Electoral Act 73 of 1998 to be South African citizens who are 18 years or older. 40 A
person or group of persons may not, however, be unfairly denied the right to vote. An
example of where this did indeed occur is the case of August v Electoral Commission,41
where it was held that the Electoral Commission’s failure to make arrangements to allow
prisoners to vote in the general election was unconstitutional. The court proclaimed that this
did not mean that Parliament could not pass any legislation excluding certain categories of
people, for example, prisoners from voting. However, the objection was that it was the
Electoral Commission and not Parliament that decided not to allow prisoners to vote. In this
case, certain categories of prisoners were disenfranchised simply because the Electoral
Commission failed to ensure that these prisoners could register to vote and subsequently
vote.
The electoral system employed in South Africa is the list system of proportional
representation which is used for the national and provincial elections. With this system, the
voter does not have a choice between candidates but may only choose between the parties’
list of candidates. The lists are compiled by the parties themselves. 42 In South Africa a body
of rules, sometimes called the ‘mandate theory’ determines how elected candidates represent
the electorate. Moreover, initially there was an anti-defection clause, which means that
members of a legislature lose their seats if they cease to be members of the political parties
who nominated them. However, floor-crossing (defection) is now permitted in South Africa
(although this can only take place within a very narrow window of time).
When it comes to state funding of political parties, section 236 obliges the national legislature
to provide funding of political parties so as to enhance multi-party democracy. The legislation
which gives effect to the section 236 of the Constitution is the Public Funding of Represented
Political Parties Act 103 of 1997. This Act establishes a special fund, managed by the
Electoral Commission, from which money is allocated from time to time to the political parties
38
As above.
39
As above para 40.
40
Sec 1 of the Electoral Act 73 of 1998.
41
1999 (3) SA 1 (CC).
42
represented in the National Assembly and the provincial legislatures. The extent of funding
received is dependent on 2 factors: the party’s proportional number of seats and the principle
of equity. This second factor entails that each represented party must receive a fixed minimum
amount of money. In addition, the condition imposed is that the funds must be used for
purposes compatible with the functioning of a political party in a modern democracy. 43
(ii) Participatory democracy

Participatory democracy means that individuals or institutions must be given the opportunity
to take part in the making of decisions that affect them. South Africa is a participatory
democracy in which the public must be involved regularly and actively in decision-making. 44
The Constitution explicitly acknowledges the value of allowing people themselves to
participate in government decisions. In this regard, participation can take place at the level of
law-making; in executive decision-making; and in constitutional adjudication. With respect to
participation in law-making, the Constitution and the rules of the various legislative bodies
provide ample opportunity for participation in the legislative process. In particular,
stakeholders are invited to comment on government discussion papers and can make
submissions. However, participatory democracy has also been criticised as having as its
basis the naive assumption that sufficient participation will eventually produce agreement
between citizens on a single right decision most conformable with the public interest. 45
Participation in executive decision-making is also entrenched in section 33 of the Constitution

(the right to just administrative action). Administrative action requires that a person be given a
hearing before a decision is taken. While there is no requirement that the executive consult
with the affected person before the decision is made, section 4 of the Promotion of
Administrative Justice Act 3 of 2000 requires that a public inquiry be held, or notice and
comment procedures be used, before subordinate legislation is passed that materially and
adversely affects the public’s rights.
The idea that persons and institutions should be allowed to participate in litigation that may
affect them is receiving increased recognition and appreciation. The Rules of the
Constitutional Court permit a person with an interest in a matter to be admitted as amicus
curiae. The Court itself has actively solicited the views of those it regarded as being affected
by litigation before it, although as time progressed, the Court adopted a more restrictive
attitude.46 In order to satisfy the requirements to be admitted as amicus curiae, third parties
must have a direct and substantial legal interest in any remedy the court may give. Rule 16A
has gone some way in resolving the anomaly caused by the court’s restrictive approach and
can be interpreted in a manner which gives effect to the principle of participatory democracy. 47
(iii) Direct democracy

As an actually existing political system, direct democracy is very rare 48 as it means that all
major political decisions are taken by the people themselves. This form of democracy may
work in a very small political community, where people can get together on a regular basis to
discuss and decide matters of common interest. However, direct democracy is hardly an
43
As above 87.
44
See Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC) 1440-1442.
45
T Roux ‘Democracy’ in Constitutional Law of South Africa Second Edition Volume 1 10-15.
46
See Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 9.
47
48
Roux (n 45 above) 10-4.
option in the modern state, which is usually too populous to allow for the direct participation,
on a regular basis, of all citizens in the affairs of the nation. 49
Direct democracy encompasses the holding of referenda (where people are asked to make a
decision directly); the right to freedom of assembly; 50 and greater citizen participation in local
government. Section 84(2)(g) of the Constitution makes provisions for national referendums
to be called by the President. Section 127 makes provision for provincial referendums to be
called by the Premier of a province. Section 17 of the Constitution regulates the right to
assembly, demonstration, picket and petition. This protest action allows people to
communicate directly with the authorities and the public in a meaningful manner. Protest
action is a constitutionally guaranteed method that may be used by groups to engage more
directly with state authorities.
Direct democracy is particularly important to people or groups whose interests are neglected
by political parties. This form of democracy mitigates the enormous power which political
parties play in a representative democracy. 51 Furthermore, direct democracy is important to
people or groups whose interests are neglected by political parties. Therefore, direct
democracy allows people to communicate directly with the authorities in a meaningful
manner. However, the counter-argument to this was raised by Plato in The Republic, when
he said that “direct democracy is a political system in which leaders respond to the whims of
the people at the expense of the public interest”. 52 It is contended however, that adherence to
the concept of constitutional democracy would prevent such a situation from arising.
(iv) Multi-party democracy

South Africa prides itself on having a multi-party democracy. Section 1 of the final Constitution
expressly provides that ‘The Republic of South Africa is one, sovereign, democratic state
founded on the following values: (a) universal adult suffrage; (b) a national common voter’s
roll; (c) regular elections; and (d) a multi-party system of democratic government to ensure
accountability, responsiveness and openness.’
The Constitutional Court in the UDM53 case held that multi-party democracy ‘clearly excludes a
one-party state, or a system of government in which a limited number of parties are entitled to
compete for office’. The court went even further to state that ‘multi-party democracy
contemplates a political order in which it is permissible for different political groups to organize,
promote their views through public debate and participate in free and fair elections’. 54
Notwithstanding the reference to South Africa being a multi-party democracy, some

commentators argue (quite convincingly) that South Africa is merely a ‘dominant party
democracy’.55
49
As above.
50
Section 17 of the Constitution provides for the right to assembly, demonstration, picket and petition, thus giving
expression to the concept of direct democracy.
51
As above.
52
Plato The Republic (2nd Edition, translated by D Lee 1974) Book VIII.557d.
53
United Democratic Movement (UDM) v President of the Republic of South Africa & Others (African Christian
Democratic Party & Others Intervening; Institute for Democracy in South Africa & Another as Amici Curiae) (No
2) 2003 (1) SA 495 (CC), 2002 (11) BCLR 1213 (CC) para 24.
54
UDM para 26.
55
Choudry S ‘‘He had a mandate’: The South African Constitutional Court and the African National Congress in
a dominant party democracy’ Constitutional Court Review (2009) 2 1-86.
(v) Constitutional democracy
South Africa is also a constitutional democracy. 56 This means that the people’s
representatives in Parliament, in the provincial legislatures and in municipal councils are not
free to make whatever laws they wish, but are bound to observe the norms and values
embodied in the Constitution. Laws that are inconsistent with the Constitution will be declared
invalid. Constitutional democracy is therefore an over-arching principle governing state
conduct. Essentially this means that the people’s power to make collective decisions is
constrained by a written constitution that is regarded as being incapable of ordinary
amendment.
The epitome of constitutional democracy in action is judicial review, despite the fact that it is
perceived as being undemocratic. Since representative democracy is hinged on consent
given by the people to democratically elected representatives who will ensure that the
interests of society in general are protected by elected representatives, it appears anomalous
that an unelected minority (the judiciary) has the power to declare laws passed and actions
taken by such government, unconstitutional. However, the counter-argument is that
constitutionalism and democracy may indeed complement each other and the existence of a
supreme, justiciable Constitution is not necessarily incompatible with democracy. In this
regard, support for the view that judicial review (at least in the specific South African context)
is democratic is as follows:
(1) That South Africa’s Constitution was drafted by representatives of the people,
assembled in the Constitutional Assembly and was adopted by a two-thirds
majority of the members of the Constitutional Assembly. Moreover, it was the
product of a lengthy process of negotiations, compromise and democratic
deliberations whereupon the people chose to accord the judiciary the right to
review legislative (and executive) conduct.
(2) Judicial review may contribute to the need to sustain vigorous political debate
where citizens are free to state their views and challenge widely accepted beliefs
as a vital component of democracy. Judges play a crucial role by protecting
people’s political rights or the right to freedom of expression by ensuring a free
and uninhibited public debate.
(3) During the process of judicial review, judges merely inquire into the
constitutionality of legislation, but cannot (and do not) simply substitute their own
views for those of the legislature. The judiciary upholds the separation of powers
doctrine and defers to the authority and expertise of the legislature who is then
required to draft a new law which conforms to the Constitution. 57
(e) Accountability, responsiveness and openness

Government institutions must be accessible (open) and the government officials must be
responsive to the people they govern.58 The South African constitution gives expression to the
right the idea of openness in that it includes the right of access to information in section 32 of
56
‘Constitutional democracy’ is the binary opposite of the term ‘parliamentary sovereignty’ where the legislature
has the final word in the event of disagreement concerning the constitutionality of a collective decision.
57
See in this regard, the cases of Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524
(CC) and Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 CC. In both
instances, the Constitutional Court ordered the legislature to enact appropriate legislation to allow same-sex
couples the right to marry; and to re-create an independent investigating unit, respectively.
58
the Constitution. National legislation has been drafted to give concrete effect to this right.
The Promotion of Access to Information Act 2 of 2000 promotes transparency, accountability
and effective governance by empowering people to participate in decision–making. 59
Section 59 of the Constitution also gives effect to the right to an accountable, responsive
government in that it provides that the National Assembly must facilitate public involvement
and conduct its business in an open manner and may not exclude the public, including the
media from a sitting of a committee unless it is reasonable and justifiable to do so in an open
and democratic society.60 In addition, the public has an interest in courts ‘being open and
transparent’.
(i) Responsiveness
The principle of democracy is linked to the idea of responsiveness – it requires government to
respond to the will of the people they govern, preferably by way of explaining laws, policies
and actions to the public.
(ii) Accountability
Accountability means that government must explain its laws and actions if required to do so
and must justify its actions if need be. Corder et al argue that accountability requires a
willingness to make amends for any fault or error and the taking of steps to prevent their
recurrence in future.61 Section 33 of the Constitution (Just Administrative Action) is the most
important Constitutional provision relating to accountability as it entails that one has a right to
written reasons and to reasonable, lawful administrative action. The Promotion of Just
Administrative Justice Act 3 of 2002 gives effect to this constitutional right.
In addition, checks and balances exist to ensure accountability between different government
departments and the Chapter 9 institutions work together with Parliament to act as watchdogs
over government. These Chapter 9 institutions are accountable to the National Assembly, 62
thereby reinforcing the notion of accountability.
(f) Separation of powers

Constitutional Principle VI, to which the Constitution had to conform, read: “There shall be a
separation of powers between the legislature, the executive and judiciary, with appropriate
checks and balances to ensure accountability, responsiveness and openness”. As such,
notwithstanding the fact that the term ‘separation of powers’ is not explicitly stated in the
Constitution, it is built into the Constitution. It is ‘implied’ or ‘implicit’ in the Constitution. 63
Montesquieu’s (1689-1755) formulation of government functions into legislative, executive

and judicial branches remains in use to this day despite the fact that Locke had devised his
own scheme of the doctrine sixty years prior to Montesquieu doing so. 64 The doctrine is
59
As above.
60
As above.
61
Corder, H, Jagwanth, S and Soltau, F Report on Parliamentary Oversight and Accountability (July 1999) 2, as
quoted in Currie & de Waal (note 4 above) 90.
62
Sec 181(5) of the Constitution.
63
64
Locke’s (1632-1704) formulation divided government functions into legislative, executive and foreign relations.
premised on the traditional understanding that the legislature makes the law; the executive
implements and enforces that law and formulates policy for the implementation of the law;
and the judiciary interprets the law and administers justice. The aim of the doctrine was to
ensure that the different functions of government were carried out by separate institutions and
that the one branch did not encroach into the functional area of the others. As originally
conceived, it reflects a distrust of government power and a desire to maximize individual
freedom65 and as such, its purpose is to prevent excessive concentration of power in a single
person or body. Montesquieu expressed the necessity for the separation of powers for the
preservation of liberty as follows:
When the Legislative Power is united with the Executive Power in the same person or body of
magistrates, there is no liberty because it is to be feared that the same Monarch or the same Senate will
make tyrannical laws in order to execute them tyrannically. There is again no liberty if the Judicial Power
is not separated from the Legislative Power and from the Executive Power. If it were joined with the
Legislative Power, the power over the life and liberty of citizens would be arbitrary, because the Judge
would be Legislator. If it were joined to the Executive Power, the Judge would have the strength of an
oppressor. All would be lost if the same man, or the same body of chief citizens, or the nobility, or the
people, exercised these three powers, that of making laws, that of executing public decisions, and that of
judging the crimes or the disputes of private persons.
In the South African context, in the First Certification case,66 the Constitutional Court held that
the doctrine of separation of powers is not ‘a fixed or rigid constitutional doctrine’ and that ‘it is
given expression in many different forms and made subject to checks and balances of many
kinds’. In South Africa, for example, Ministers, as members of the Assembly, can be called
on to explain and account for the way in which legislation is executed and other executive
functions performed. Furthermore, in the case of De Lange v Smuts,67 the Constitutional
Court recognised that
over time our courts will develop a distinctively South African model of separation of powers, one that
fits the particular system of government provided for in the Constitution and that reflects a delicate
balancing, informed both by South Africa’s history and its new dispensation, between the need, on
the one hand, to control government by separating powers and enforcing checks and balances and,
on the other, to avoid diffusing power so completely that the government is unable to take timely
measures in the public interest.
The structure of the South African state illustrates that a basic separation of powers exists in
that section 43 of the Constitution vests the legislative authority of the Republic in the national
sphere in Parliament and in the provincial sphere in the provincial legislatures. It then
continues to vest the executive authority of the state in President and the executive authority
of the provinces in the Premiers in terms of sections 85 and 125 of the Constitution
respectively. The judicial authority is located in the courts according to section 165 of the
Constitution.
This means that the doctrine is firmly entrenched in the 1996 Constitution of South Africa
notwithstanding the fact that at face value, it is not clearly evident in the Constitution and
should be determined by examining the manner in which the Constitution is structured. This
has also been endorsed by the judiciary. For instance, Ngcobo J in Doctors for Life argued
that … ‘the structure of the provisions entrusting and separating powers between the
65
66
Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of Republic of
South Africa,1996 1996 (4) SA 744 (CC).
67
De Lange v Smuts NO 1998 (3) SA 785 (CC).
legislative, executive and judicial branches reflect the concept of separation of powers. The
principle has important consequences for the way in which and the institutions by which
power can be exercised’. Langa CJ mentioned in the Glenister case that ‘although not
expressly mentioned in the text, it was ‘axiomatic’ that it was part of the constitutional
design’.68 Courts must be conscious of the vital limits on judicial authority and the
Constitution’s design to leave certain matters to other branches of government. They too
must observe the constitutional limits of their authority. This means that the judiciary should
not interfere in the processes of other branches of government unless to do so is mandated
by the Constitution.69 Accordingly, the division of powers is not strictly enforced if it appears,
for example, that one sphere of government is failing to comply with its constitutional
obligations.70 In this regard, the judgment in the Glenister case is apposite, where it was held
that “it is a necessary component of the doctrine of the separation of powers that courts have
a constitutional obligation to ensure that the exercise of power by other branches of
government occurs within constitutional bounds. ‘But even in these circumstances, courts
must observe the limits of their powers’”. 71 This is in accordance with the test formulated in
the Doctors for Life case, which provides that intervention by a court in the legislative process
would only be appropriate if an applicant can show that there would be no effective remedy
available ... once the legislative process is complete, as the unlawful conduct will have
achieved its object in the course of the process. The applicant must show that the resultant
harm is material and irreversible.72
Concerning the powers of the three branches of government, South Africa finds itself in the
ironic situation that whereas the legislature is now more representative than ever before, it
has become the least powerful branch of government and the executive is seen as being
increasingly prominent. Checks and balances are in place to ensure that some equilibrium is
attained with respect to the exercise of power. Judicial review represents the most important
check and balance on the exercise of power. The judiciary, which was once regarded as the
‘least dangerous’ of the three branches 73 of the state has gained immense power over the last
century.74 Judicial review serves to control the abuse of power by either the legislature or the
executive by declaring legislation and/or administrative action invalid if necessary. 75
Particularly given the South African Constitution’s commitment to realizing socio-economic
rights and achieving substantive equality, the judiciary will be obliged to play a greater role in
vindicating these rights if the other branches of state are failing to fulfil their obligations.
Alternative mechanisms and institutions have also been created to ensure that legislative and
executive power is constrained. These include the Public Protector and the Auditor-General
(as discussed above) and a number of constitutional commissions. Section 84 of the
68
Glenister v President of the Republic of South Africa and Others 2009 1 SA 287 (CC) at paras 29-32.
69
Doctors at para 37.
70
See the case of Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002 (5) SA 703;
2002 (10) BCLR 1075 at para 15 where the Constitutional Court ordered the executive (the Ministry of Health) to
make available nevirapine to all pregnant women, despite the fact that the implementation of legislation is not the
responsibility of the judiciary, particularly since the judiciary does not have all the relevant knowledge, skills nor
expertise to decide how budgets should be utilized nor where the greatest needs exist.
71
Glenister supra para 33.
72
Doctors at para 44. This test applies equally to executive decision-making and execution of law and policy.
73
Referring to the title of the book The Least Dangerous Branch (1962) by Alexander Bickel, as quoted in Currie
& de Waal (as above) 94.
74
As above.
75
The judiciary ensures that government actions are in compliance with the procedural and substantive
requirements of the Constitution.
Constitution affords the President the right to appoint judicial commissions of enquiry.
However, these commissions are seen to infringe the separation of powers doctrine in that
they require the judiciary to perform the function of the executive in that judges have to
investigate matters instead of adjudicating disputes. 76
The separation of powers and the counter-majoritarian dilemma
Representative democracy is characterised by the fact that the citizens of a state elect the
representatives of their choice, and these representatives express the will of the people.
Note that a representative democracy is created via the process of elections. These
elections should be held at regular intervals, and reasonably frequently.
Representation is meant to ensure that the interests of society in general are protected and
cared for by elected representatives of that society. Consent is central to the concept of
representation. Representation entails government power being exercised by
representatives of the people on their behalf, and with their consent. In parliamentary terms,
representation refers to the constitutional system for electing members of the legislative body
who will work for the interests of those who elect them.
Constitutional checks and guarantees, such as the separation of powers may prevent any
single group or institution from becoming too strong, as well as promoting democratic debate
and competition. Some commentators also argue that it is possible to combine
representative democracy at the national and provincial level with a more direct, participatory
form of democracy at local government level.
In addition to being a representative democracy, South Africa is also a constitutional

democracy. This means that the people’s representatives in Parliament, in the provincial
legislatures and in municipal councils are not free to make whatever laws they wish, but are
bound to observe the norms and values embodied in the Constitution. Laws that are
inconsistent with the Constitution will be declared invalid.
This then raises the question whether judicial review is undemocratic as it may be objected
that it is undemocratic that the judiciary (which is not an elected body) has the power to
declare legislation enacted by Parliament (which is an elected body) invalid.
This dilemma is referred to as the counter-majoritarian problem as judicial review is in conflict

with the wishes of the legislative majority. However, on the other hand it is suggested that
constitutionalism and democracy may complement each other, and that the existence of a
supreme, justiciable Constitution is not necessarily incompatible with democracy. The
following arguments can be made to defend judicial review against the charge that it is
undemocratic:
(1) That South Africa’s Constitution was itself made by the representatives of the
people, assembled in the Constitutional Assembly. In fact, the Constitution
had to be adopted by a two-thirds majority of the members of the
Constitutional Assembly, and was the product of a lengthy process of
negotiations and democratic deliberations. This explains, to some extent, why
the Constitution enjoys precedence over ordinary legislation.
76
(2) Democracy presupposes a vigorous political debate, in which citizens feel free
to state their views and to challenge widely accepted beliefs. Judicial review
may contribute to this result: by protecting people’s political rights, or freedom
of expression, judges may help to ensure a free and uninhibited public debate.
(3) Judges may inquire into the constitutionality of legislation, but this does not
mean that they can simply substitute their own views for those of the
legislature. When a judge strikes down a law as unconstitutional, he or she
does not make a new law or tell the legislature what a new law should look
like. The discretion to amend a law that has been struck down belongs to the
legislature – the only condition is that the amended law must be constitutional.
(g) Independent judiciary

The Constitution of the Republic of South Africa, 1996, unequivocally provides for an
independent judiciary,77 whereby members of the judiciary are required to make decisions
without fear, favour or prejudice and should not be subject to any improper influence or
pressure in the decision-making process.
There is no consensus amongst scholars on what exactly is meant by judicial independence

due to the fact that the concept of judicial independence is a relative concept. 78 Moreover,
“judicial independence has never been a condition that is established fully, or that is enjoyed
without debate, controversy and challenge”. 79 According to Fombad, it is comprised of at least
four characteristics, namely, first, that it is impartial, secondly, that its decisions are accepted
by all, thirdly, that it is free from undue influence, and fourthly that it must be capable of
rendering justice on all issues of substantial legal and constitutional importance fairly,
impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other
undue influence or consideration. 80 Impartiality of judges is an essential feature of an
independent judiciary. Impartiality encompasses the idea that judges should be both
individually and collectively autonomous and base their decisions purely on the law and the
facts and not yield to any pressure from the parties. 81
However, cognisance must be taken of the concession made by Russell that “to formulate the
principle of judicial independence in a way that requires judges to be totally uninfluenced by
anybody whatsoever is totally unrealistic”. 82 Additionally, recognition is given to the view that
“absolute judicial insularity is impossible and undesirable” 83 especially since this may intrude
on the necessity to ensure accountability.
The structure established to ensure an independent judiciary is the Judicial Service

Commission (JSC) whose role is to advise the President on all matters relating to the judiciary
and to oversee the effective functioning of the judiciary by way of enforcing a stringent
77
Sec 165 of the Constitution regulates the judiciary and obliges the other branches of state to respect the
integrity of the judiciary and to uphold the decisions emanating from the judiciary.
78
CM Fombad ‘A Preliminary Assessment of the Prospects for Judicial Independence in Post-1990 African
Constitutions’ 2 SA Public Law (2007) 235.
79
As above 234.
80
As above.
81
As above.
82
P Russell ‘’Towards a General Theory of Judicial Independence’’ in Russell and O’Brien Judicial
Independence in the Age of Democracy: Critical Perspectives from Around the World (2001) 12, as quoted in
Fombad (note 76 above) 236.
83
Fombad as above.
appointment and removal process. As such, a legitimate expectation is created that this
institution created to uphold an independent judiciary will not shield any judges if they are
accused of questionable conduct, particularly when the JSC has a constitutional duty to
exercise its powers and determine that a case has been made out or not, pursuant to section
177 of the Constitution.
Confirming South Africa’s commitment to an independent judiciary is the fact that South Africa
is party to a number of international and regional instruments which oblige the state to adhere
to fundamental principles concerning an independent judiciary and the maintenance of
democracy. These instruments include the United Nations Basic Principles of the
Independence of the Judiciary; the African Commission Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa (2003) and the African Charter on
Democracy, Elections and Good Governance.
(h) Co-operative government

South Africa is neither a union nor a federation. Its structure is influenced by the German
Constitution. It therefore takes the form of an integrated quasi-federation as it provides for
three levels of governance, being national, provincial and municipal. These three levels are
intended to co-operate with each other and not compete with each other. South Africa’s
system of co-operative government is entrenched by the Constitution which holds that the
three spheres of government are described as ‘distinctive, interdependent and interrelated’. 84
The principles of co-operative government are contained in section 40(2) and 41(1) of the
Constitution which provides that all spheres of government must facilitate co-operation and
must:
1. preserve the peace, national unity and the indivisibility of the Republic
2. secure well-being of the people of the Republic
3. provide effective, transparent, accountable and coherent government
4. be loyal to the constitution and its people
5. not assume any power except those conferred on them in terms of the Constitution
6. exercise their powers and perform their functions in a manner that does not
encroach on the geographical, functional or institutional integrity of government in
another sphere;
7. co-operate with one another in mutual trust and good faith by: fostering friendly
relations; assisting and supporting one another; informing one another of, and
consulting one another on, matters of common interest; co-ordinating their actions
and legislation with one another; adhering to agreed procedures; and avoiding legal
proceedings against one another.
Based on the mutually beneficial co-operative relationship that is created by the Constitution
there is a certain amount of shared responsibility amongst and between the three levels of
government. For example, the Constitution usually allocates legislative and executive powers
concurrently to the national and provincial government. When it comes to competencies that
are shared by the provincial and national governments, in the context of legislative authority,
both the provinces and national government may make laws in areas such as housing, health,
education (except at tertiary level), industrial promotion, environment, trade, public transport,
84
See in particular, sec 40 and 41 of the Constitution which set out the principles of co-operative government in
South Africa. Sect 41(1)(g), for example, states that the purpose of the section “is to prevent one sphere of
government from using its powers in ways which would undermine other spheres of government”.
urban and rural development and welfare services, although it must be borne in mind that
national legislation over-rides provincial legislation in the event of a conflict between the two. 85
Likewise, the allocation of executive authority also follows a system of co-operative federalism
in that the national government can execute laws falling within the areas of concurrent
competence. In general, provinces and local government are responsible for executing
national and provincial laws.
To compensate for the fact that the provinces have restricted law-making powers (and that
their laws may be superseded by national laws), the provinces play a role in the adoption of
national legislation through their representatives in the second house of Parliament, the
National Council of Provinces (NCOP).86
Co-operative government has been interpreted to mean that the exclusive law-making
competences of the provinces will be narrowly interpreted. Therefore, certain matters can be
effectively regulated in one province alone (intra provincially). 87 Conversely, though, powers
of local government and provinces will be extensively interpreted to ensure that they dominate
in the area of administration and implementation of laws.
A notable case concerning South Africa’s integrated quasi-federation is the case of Premier of
the Province of the Western Cape v the President of the Republic of South Africa 88 where
Parliament had passed an amendment to the Public Service Act of 1994 entailing that the
provincial and the national heads of departments were given the same broad functions and
responsibilities. Provincial heads of departments no longer fell under the administrative
control and responsibilities of the provincial Director-General. The Director-General assumed
responsibility for the administration of the office of the premier, intergovernmental relations,
and cooperation between the various divisions of the provincial administration. The Province
of the Western Cape challenged the constitutionality of this amendment on the basis that this
new scheme violated section 41(1)(g) of the Constitution in three important respects, namely
(1) it assigned functions to the provincial Director-General and heads of departments in an
unacceptable manner; (2) it restricted the Premier’s executive powers to establish or abolish
departments of government; and (3) it gave the minister the power to transfer certain
functions from the province to national level. Ultimately, the issue facing the court was
whether the new scheme encroached upon the geographical, functional and
institutional integrity of the provincial sphere of government.
The court in this case considered the allegations made by the Western Cape Province and
concluded that, save in one respect only, the new scheme as a whole did not violate section
41(1)(g) of the Constitution. The court gave the following reasons for its findings:
(1) Section 41(2) provides that parliament can enact laws to facilitate the process of
cooperative government. The creation of the post of Director-General to attend to
the efficient management and administration of the Premier’s Office was consistent
85
In most instances in a co-operative federation (which South Africa can be likened to), an arrangement exists
whereby framework laws and policies are made centrally and the laws are completed and executed at the
regional (provincial) level. This ensures uniform norms across the country while allowing the provincial
authorities to adapt the details to suit local implementation.
86
87
See here, Ex parte President of the RSA: In re Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC).
88
Premier of the Province of the Western Cape v the President of the Republic of South Africa 1999 (3) SA 657
(CC).
with this section. In addition, the National Executive did not usurp the power of the
Premier, who still exercised control over the functions and the appointment of the
Director-General.
(2) The new scheme did not restrict the power of the Premier to establish or abolish
departments of government. All that the new scheme required was that the
Premier confirm with the President the constitutionality/legality of any proposed
restructuring within the public service of the province. This encouraged a system
of cooperation between the various spheres without any violation of section 41(1)
(g).
(3) The Western Cape Province was consulted throughout the adoption process and
was given sufficient opportunity to raise any objections to the new scheme (which it
did).
(4) The new scheme did not in any way limit the powers and functions of the Premier.
(5) The new scheme was not enacted in an arbitrary manner not in a manner
inconsistent with the provisions of the Constitution.
The significance of this case is that it reinforces the co-operative relationship between the
national and provincial governments. This case also raises the imperative of co-ordination of
legislative and executive activities in this system of government. 89
Co-ordination is especially important in the areas of concurrent law-making and

implementation as the administration responsible for implementing a law must be clearly
identified and there must be adequate provision in the responsible authority’s budget for their
functions.90
Co-ordination takes place by way of the following mechanisms: in the first instance, the
National Council of Provinces is the vehicle for co-ordinating national and provincial legislative
efforts. This gives the provinces the opportunity to make an input into national legislative
process. With regard to executive activities, non-constitutional structures have been
established to facilitate co-operation. The particular structures are the Inter-Governmental
Forum (IGF), where Premiers of the provinces meet with representatives from national
government; Ministerial Forums (MINMECS), which is composed of ministers at national level
and provincial members of the executive council (MECs); and the Premier Forum which
affords an opportunity for Premiers of provinces to meet. 91 The Director-Generals of the state
departments lead technical committees which support the IGF and the MINMECS. In turn,
the decisions of the IGF and the MINMECS serve as guidelines for the governments and
have to be considered when decisions are made. 92
Section 41(2) of the Constitution states that an Act of Parliament must establish or provide for
structures and institutions to promote and facilitate intergovernmental relations; and provide
for appropriate mechanisms and procedures to facilitate settlement of intergovernmental
disputes. Moreover, such disputes must, where possible, be resolved at a political level
rather than by adversarial litigation. 93 This is a reinforcement of the necessity for good faith
89
Co-ordination is essential to ensure the effective functioning of co-operative government.
90
91
As above 121 -122.
92
As above 122.
93
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 1996 (4) SA 744 (CC) para 291.
negotiations between the levels of government pursuant to the notion of co-operative
government.
********
Drafting the ‘Final’ Constitution
The Constitutional Assembly and the Constitutional Principles
The Interim Constitution was not intended to be the final constitution of South Africa. The new
parliament had to play a dual role of legislature and Constitutional Assembly. The
Constitutional Assembly had two years from the date of its first sitting to adopt a final
constitution. The Constitutional Assembly had to ensure that the constitution contained all 34
constitutional principles which were agreed upon during the 1991-1993 negotiations which
were also contained in Schedule 4 to the Interim Constitution. In addition, it was imperative
that sufficient public participation took place to involve the public in the constitution-making
process. A further requirement was that the Constitutional Court had to certify the draft Final
Constitutional in order to ensure that it conformed to the constitutional principles.
The Constitutional Assembly
The Constitution of the Republic of South Africa Act 200 of 1993 provided for the
establishment, after democratic elections had taken place, of a Constitutional Assembly that
would negotiate and adopt a final, permanent Constitution. This the Assembly did on 8 May
1996. When the Constitutional Court was called upon to certify that this first version of the
final Constitution complied with the Constitutional Principles entrenched in the 1993
Constitution, it remarked that there is no exhaustive list of fundamental rights and freedoms.
Indeed, “[e]ven among democratic societies what is recognised as fundamental rights and
freedoms varies in both subject and formulation from country to country, from constitution to
constitution, and from time to time”. 94 The Court also stressed that the Constitutional
Assembly was not obliged to replicate the Interim Bill of Rights in the final Constitution, but
merely to entrench all the universally accepted fundamental rights and freedoms. 95
The Constitutional Principles
Thirty-four constitutional principles were agreed, to which the final constitution would have to
adhere. It had been agreed that the Constitutional Court would adjudicate the adherence to
these principles by certifying the Constitution, once it had been passed by the constitutional
assembly.
a) Public Participation
The public was encouraged to make submissions regarding the contents of the final
constitution. A vast number of submissions were received, but it is highly unlikely that many
of them were even perused, let alone considered. Whatever the original intention, the
exercise eventually became a means of giving the Constitution legitimacy by encouraging the
‘buy-in’ of the public, rather than a means of gathering opinion or comment on any of the
specific provisions.
Adoption and certification of the final constitution
94
As above para 50.
95
As above para 52.
(i) The First Certification Judgment
This case concerned the certification that the text of the final Constitution complied with the
34 Constitutional Principles developed during CODESA and the MPNF.
The Constitutional Assembly completed the drafting of the constitution in May 1996 and
adopted the final text of the constitution on the 8 th of May 1996. The text was submitted to
the Constitutional Court for certification. In September 1996 the Constitutional Court refused
to certify the text. See Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of Republic of South Africa 1996 (4) SA 744 (CC).
The Constitutional Court pointed out that ‘in general and in respect of the overwhelming
majority of its provisions, the Constitutional Assembly had met the requirements of the
constitutional principles. However, the Constitutional Court pointed out that the Constitutional
Assembly had a large degree of latitude in its interpretation of the constitutional principles
and further that the role of the Constitutional Curt was a judicial role and not a political role.
The Constitutional Court held that the Constitutional Court had a judicial mandate to certify
whether all the provisions of the new text complied with the Constitutional Principles . The
Constitutional Court had no right or mandate to express any views regarding the choices
made by the Constitutional Assembly in drafting the Constitution or the methodology used.
The Constitutional Court held that when it came to interpreting whether a provision of the new
text complied with a provision of the Constitutional Principles, it would be proper to adopt the
interpretation which gave the new text a construction which would make it consistent with the
Constitutional Principles. The Constitutional Court held that any court in the future
interpreting any provision of the new text should apply the meaning used by the
Constitutional Court in the certification process and should not depart from the meaning
unless there are compelling circumstances.
In its deliberations, the Constitutional Court identified 2 separate questions:

 Firstly, whether the basic structures and premises of the draft Final Constitution were in
accordance with those contemplated in the constitutional principles?
 Secondly, if the Constitutional Assembly did comply with the above, would the court turn
to an analysis of whether the details of the draft complied with the constitutional principles?
In addressing the first question, the Constitutional Court developed a minimum threshold
which the Constitutional Assembly had to meet. It was found that the Constitutional Assembly
had in fact satisfied these standards. The Court held that all 34 Constitutional Principles had
to be read holistically with an integrated approach. Further that the principles should not be
read in isolation from any of the other principles. The Constitutional Principles should not be
interpreted in a manner which conflicts with any of the other provisions. The test to be applied
was whether the provisions of the new text complied with the Constitutional Principles. This
meant that the provisions of the new text could not be inconsistent with any of the
Constitutional Principles.
In respect of the second question the Court tested the text against the constitutional
principles. The Court was cautious to limit the scope of review. The CC held that when it
came to interpreting whether a provision of the new text complied with a provision of the
Constitutional Principles, it would be proper to adopt the interpretation which gave the new
text a construction which would make it consistent with the Constitutional Principles. The
Court held that any court in the future interpreting any provision of the new text should apply
the meaning used by the Court in the certification process and should not depart from the
meaning unless there are compelling circumstances.
The court reached the conclusion that it was unable to certify the Final Constitution because:
Section 23 failed to comply with Constitutional Principle XXVIII in that the right of individual
employers to engage in collective bargaining was not recognised and protected;
Section 241(1), which failed to comply with Constitutional Principles IV and VII in that it
impermissibly shielded an ordinary statute from constitutional review;
Section 194, which failed in respect of the Public Protector and the Auditor-General to comply
with Constitutional Principle XXIX in that it did not adequately provide for and safeguard the
independence and impartiality of these institutions;
Section 196, which failed to comply with Constitutional Principle XXIX in that the
independence and impartiality of the Public Service Commission was not adequately
provided for and safeguarded, and Constitutional Principle XX in that the failure to specify the
powers and functions of the Public Service Commission rendered it impossible to certify that
legitimate provincial autonomy had been recognised and promoted;
Chapter 7, which failed to comply with Constitutional Principle XXIV in that it did not provide a
'framework for the structures' of local government, Constitutional Principle XXV in that it did
not provide for appropriate fiscal powers and functions for local government, and
Constitutional Principle X in that it did not provide for formal legislative procedures to be
adhered to by legislatures at local government level;
Section 229, which failed to comply with Constitutional Principle XXV in that it did not provide
for 'appropriate fiscal powers and functions for different categories of local government’.
In addition, the Constitutional Court also had to consider whether section 74 of the new text
concerning the amendments to the Constitution and the Bill of Rights complied with the
Constitutional Principles. The Court held that in order to effect an amendment, it required
special majorities and more stringent procedures than what was required for other legislation.
The special majority required a two-thirds majority of all members of the National Assembly
for an amendment of an ordinary constitutional principle. In this respect, there was
compliance with the constitutional principles, but there was a failure to comply with
constitutional principles with regard to the special procedure requirement because only the
National Assembly and no other House was involved in the amendments of the ordinary
provisions of the new text, and there was no special period of notice and the amendments
could be introduced as part of other legislation. READ PARAGRAPHS 151-156
(AMENDMENT TO THE CONSTITUTION)
The new text also failed to sufficiently entrench the Bill of rights against amendments. The
Constitutional Court held that the notion of ‘entrenchment’ required a more stringent
protection in that it required that the Bill of Rights be safeguarded by special amendment
procedures against easy abridgment.
The Constitutional Court also considered the provisions dealing with elections namely the
anti-defection clause and the absence of a provision requiring separate ballot papers for the
elections of members of the National Assembly and members of provincial legislatures. The
anti-defection clause required a legislator to vacate their seat if they ceased to be members
of the parties that nominated them. The Constitutional Court held that the anti-defection
clause was not in conflict with the Constitutional Principles. READ PARAGRAPHS 180-187
The Constitutional Court went on to consider whether the new text provided adequately for
legitimate provincial autonomy, in terms of which it found that there was indeed sufficient
provision for legitimate provincial autonomy. The Constitutional Court held that the new text
allowed for exclusive and concurrent provincial power in terms of the provincial planning and
development and well as the rendering of services. The Constitutional Court held that the
Constitutional Principles did not intend for the creation of the sovereign and independent
province but rather the creation of one sovereign state in which the provinces would only
have powers and functions allocated by the new text. Thus the Constitutional Assembly had
to define the constitutional framework within the limits set and the national government would
have powers which transcended provincial boundaries. Legitimate provincial autonomy did
not mean that the provinces could ignore the framework or demand to be insulated from the
exercise of power therefore the provinces had to be vested with powers in terms of the
Constitutional Principles.
STUDENTS ARE TO READ:
 Paragraphs 106 – 113: Separation Of Powers: Legislature And Executive
 Paragraphs 114 – 117: Power Of The President To Pardon
[paragraph 116]: “the President derives this power not from antiquity but from the Constitution
itself that proclaims its own supremacy. Should the exercise of the power in any particular
instance be such as to undermine it, that conduct would be reviewable”
 Paragraphs 122 – 124: Separation Of Powers: Judiciary
(ii)The Second Certification Judgment
The Constitutional Assembly reconvened and made several changes to the Constitutional
text. The amended text was resubmitted to the Constitutional Court where the Court held that
the provisions of the amended constitution complied with the Constitutional Principles. 96
Many political parties and other interested groups attempted to re-open many of the issues
which had not been identified by the Court as a reason for refusing to certify the first text.
The Court agreed to hear these challenges however emphasized that there was a sound
jurisprudential basis for the decisions made and it would unlikely change its decision unless
the Court was clearly wrong in its decision. Thus the Court was able to limit the scope of its
role in the Second Certification judgment.
The Constitutional Court relied less on the constitutional principles but focused more on the
elements of constitutionalism these included: values which included human dignity, equality,
the recognition and achievement of human right and freedom, the supremacy of the
Constitution and the rule of law.
In its judgment, the Constitutional Court held that section 74 complied with the requirements
of special procedures and majorities for the amendment of the Constitution. The Constitution
could be amended only by a bill specifically purported to do so and further, that time was
allowed for all interested persons to comment on a proposed amendment. The Constitutional
Court held that here were more stringent procedures. Further, the text provided that all
constitutional amendments required a two-thirds majority in the National Assembly. The
Constitutional Court held that the provisions of the Bill of Rights could not be amended
96
Certification of the Amended Text of the Constitution of the Republic of South Africa 1996, 1997 (2) SA 97 (CC).
without a two-thirds majority in the National Assembly and without the consent of 6 provinces.
Read paragraph 50-63. Concerning the Bill of Rights amendments and special majorities,
read paragraph 68-71.
The new Constitution was constructed on the basis of a rejection of the unrestrained power
and lawlessness of the apartheid regime and a desire to create a state system in which
power was legally directed and constrained by law. Ultimately, the Final Constitution
espouses the fact that the Constitution is the supreme law, thereby abandoning Westminster
constitutionalism.
Once the problems had been addressed, the Court was in a position to certify the second
version of the Final Constitution that came into effect on 4 February 1997.
Presidential assent
Former President Nelson Mandela signed the 1996 Constitution into law at Sharpeville on 10
December 1996.
The Constitution is not an Act of Parliament. The Constitution was made by the Constitutional Assembly,
a body separate from Parliament. The CA had its own procedure, chairperson and administration and unlike
Parliament, was not divided into a National Assembly and Senate. That the Constitution is not an Act of
Parliament is further attested to by the fact that it had to be certified by the Constitutional Court. It is therefore
wrong to refer to the Constitution as Act 108 of 1996. The Constitution is the supreme law of the land; it has
a far higher status than Acts of Parliament.
The Citation of Constitutional Laws Act, 2005 (Act 5 of 2005 s1) reads as follows:
No Act number to be associated with Constitution of the Republic of South Africa, 1996
(1) From the date of commencement of this Act, no Act number is to be associated with the “Constitution of
the Republic of South Africa, 1996 (Act No. 108 of 1996)”.
(2) Any reference to the “Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996)”, contained
in any law in force immediately prior to the commencement of this Act, must be construed as a
reference to the “Constitution of the Republic of South Africa 1996”.

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CSL2601 – Additional introductory material

CONSTITUTIONALISM IN SOUTH AFRICA

Constitutionalism has been described as a “complex” and “rich” theory of political

The elements of constitutionalism in South Africa

(b) The Rule of Law

In Pharmaceutical Manufacturers Association of SA: In re: Ex parte President of the Republic

(c) Bill of Rights

(i) Representative democracy

A primary aim of the Constitution is to establish and safeguard a representative democracy.

(ii) Participatory democracy

Participation in executive decision-making is also entrenched in section 33 of the Constitution

(iii) Direct democracy

(iv) Multi-party democracy

Notwithstanding the reference to South Africa being a multi-party democracy, some

(e) Accountability, responsiveness and openness

(f) Separation of powers

Montesquieu’s (1689-1755) formulation of government functions into legislative, executive

The separation of powers and the counter-majoritarian dilemma

In addition to being a representative democracy, South Africa is also a constitutional

This dilemma is referred to as the counter-majoritarian problem as judicial review is in conflict

(g) Independent judiciary

There is no consensus amongst scholars on what exactly is meant by judicial independence

The structure established to ensure an independent judiciary is the Judicial Service

(h) Co-operative government

Co-ordination is especially important in the areas of concurrent law-making and

In its deliberations, the Constitutional Court identified 2 separate questions:

(ii)The Second Certification Judgment

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