CSL2601 FEEDBACK TO ASSIGNMENT 2 (1) 2024 [60 marks]

Part A: Justify and explain (with references) why the statement is either True or False
Detailed references in the form of footnotes must have been provided. No bibliography is necessary.
NB: Wikipedia is NEVER an acceptable academic source!
References must refer to the prescribed textbook; the Constitution; case law; and Tutorial Letter 102
References to page 363 and after of the prescribed textbook are NOT relevant for CSL2601
Simply restating the case name or section of the Constitution as a reference is NOT a reference

1. The most significant aspect of the case of Economic Freedom Fighters v Speaker
of the National Assembly 2018 (2) SA 571 (CC) (EFF II) is that the judiciary has too
much political power and intrudes into the executive domain.
False. Although the minority judgment penned by Mogoeng CJ described the decisions as “a
textbook case of judicial over-reach”, the majority of the court was of the firm view that it was
the obligation of the Constitutional Court to uphold the Constitution 1 by declaring that the
National Assembly should take active steps (without delay)2 to establish a preliminary
process in the Rules of the National Assembly relating to the process of the removal of the
president from office by way of impeachment since the provisions of the Constitution do not
specify with sufficient clarity how it is to be objectively ascertained that the president has
violated the Constitution; or committed a serious violation of the law. 3 The judgment in this
case is explicit: the Court requires the National Assembly to create the relevant rules. It is not
the Court which is responsible for enacting the rules. As such, there is no violation of the
separation of powers doctrine.4

2. As a member of uMkhonto we Sizwe, former President Jacob Zuma has announced

his intention to campaign against the right of LGBTIQ+ people to a family life. His
opinion is that the ‘legislation supporting same-sex marriage lacks support from
the majority of SA’. This scenario is an example of the principle of subsidiarity.

False. The question has nothing to do with subsidiarity (which relates to the relationship
between the three spheres of government).5 This scenario could instead be described as an

1 Economic Freedom Fighters v Speaker of the National Assembly 2018 (2) SA 571 (CC) (EFF II) para 219.
2 EFF II para 220.
3 EFF II para 222 as read with sec 89 of the Constitution of the Republic of South Africa, 1996.
4 EFF II para 220 where the Court described this as consist[ing] in no more than the Court fulfilling its
constitutionally assigned duty’.
5 Pierre de Vos & Warren Freedman (eds) et al South African Constitutional Law in Context (2 ed Oxford University
Press 2021) 311.
issue implicating constitutionalism6 and the rule of law;7 or alternatively, characterising the
counter-majoritarian dilemma.8 Arguing from a rule of law perspective, it must be appreciated
that once a court has applied its mind and handed down a decision, such as the Fourie9 case
(or the Makwanyane case regarding the death penalty),10 since that decision was based
entirely on the application of the provisions of the Constitution, the decision then becomes
part of our law clarifying what the rule of law substantively means with regard to the right not
to be unfairly discriminated against based on one’s sexual orientation 11 (or what the meaning
of the right to life means even for persons convicted of serious criminal offences). One the
law is settled, it would be retrogressive for a political party to seek to change that law as this
would infringe the principle of constitutionalism and the rule of law. In regard to the counter-
majoritarian dilemma, Jacob Zuma is ostensibly speaking for the majority of the population
and indicating that same-sex marriages should not be allowed so he is declaring his intention
to ensure that what the majority of the country wants should prevail over the judgment of the
minority of judges in the Fourie case. It may appear incongruous that eleven judges
seemingly have more power than millions of members of the population, but this is explicitly
provided for in section 1(c) of the Constitution that prescribes that the rule of law is a founding
provision of the state, complemented by section 172(1)(a) of the Constitution.

3. When carefully analysed, the recent case of United Democratic Movement and
Others v Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 280; 005779/2023
(5 May 2023) – the “loadshedding” case – is an instance of judicial over-reach.
False. The “Loadshedding case” is not an instance of judicial over-reach because it is a case
that reinforces the principles of constitutional supremacy and the rule of law in that the
Constitution declares that healthcare, education and our safety and security must be
protected,12 thus the court was simply confirming the importance of these rights when it
decided that the government is obliged to ensure that electricity is provided to schools,
hospitals and police stations. Alternatively, it could also be argued that this is an instance of
the counter-majoritarian dilemma, because the majority party in government has said that it
is unable to provide electricity to hospitals, schools and police stations as there is insufficient

6 de Vos & Freedman 42.

7 de Vos & Freedman 75 where the the rule of law is described as an ‘elemental feature’ of constitutionalism.
8 de Vos & Freedman 69-75.
9 Minister of Home Affairs and Another v Fourie and Another 2006 (1) 524 (CC).
10 S v Makwanyane and Another 1995 (6) BCLR 665 (CC).
11 The outcome of this case was the promulgation of the Civil Union Act 17 of 2006 which permits the
registration of marriage between two persons of the same sex.
12 This is articulated in sec 1(a) of the Constitution which requires the advancing of human rights and freedoms.
electricity available, hence the need for loadshedding, yet the minority (being the unelected
judges) have reached a decision that the government must do everything in its power to
protect schools, hospitals and police stations from loadshedding and remove them from the
loadshedding schedule. When the government loses cases in court, they often make remarks
such as that the court has over-stepped its bounds. This is one of those examples.

True. This decision is an example of judicial over-reach (and a violation of the separation of
powers principle) because the executive branch of the state is responsible for implementing
the legislation13 governing provision of electricity. If the executive branch is satisfied that
loadshedding is required because of insufficient generation of electricity, then it is best-placed
to make that decision as it is fully aware of the resources available for that purpose. Should
the judiciary intrude into the domain of the executive and make a decision which has far-
reaching financial and logistical implications, this arguably amounts to judicial over-reach
because of its polycentric consequences.14 Despite the fact that South Africa has an evolving
form of the separation of powers doctrine; one which permits judicial intervention when the
circumstances dictate,15 this does not mean that the judiciary can usurp the expertise of
government because it could have far-reaching and irreparable impact.

4. The counter-majoritarian dilemma has no relevance to South African Constitutional

Law. It is simply a convenient excuse that politicians invoke when the judiciary is
counter-revolutionary.
False. While there have been occasions where representatives of political parties have
alleged that the judiciary is counter-revolutionary and that minority parties are trying to govern
through the courts, the reality is that South Africa’s democracy is premised on a system that
has constitutionally enshrined the power of the judiciary (a minority) to declare conduct of the
executive and legislature (overwhelmingly representing the majority political party) invalid
and unconstitutional if there is a clear instance of incompatibility between what the
Constitution requires and the law or the conduct in question.16 Although the counter-
majoritarian dilemma implies that the judiciary has unfettered power that negates the power
of democratically-elected political leaders, in a constitutional democracy, such as South
Africa, this is an essential check (and balance) to prevent any abuse of power. An illustration

13 Sec 185(2)(a) of the Constitution.

14 As a concept that is more pertinent to Administrative Law, this means that if we imagine the various
components over which the executive is responsible (and for which funds have been allocated) as
constituting a spider web, if the judiciary interferes with that allocation by re-allocating to another
component, it will pull the spider web and distort it completely.
15 The case of de Lange v Smuts NO 1998 (3) SA 785 (CC) para 60.
16 Sec 172(1)(a) of the Constitution.
of the need for the judiciary to exercise the powers conferred upon it is the Glenister case17
which deals with the replacement of the Scorpions by the Hawks and the allegations that this
would undermine the independence of the Hawks (and South African Police Service as well
as the National Prosecuting Authority).

5. The horizontal distribution of power in South Africa is exactly how multi-sphere

governance works in South Africa.
True. South Africa has an integrated quasi-federal system where there are three distinct
spheres of government that are arranged horizontally in relation to each other in that the
lowest sphere is the local sphere of government; with the middle sphere being the provincial
sphere of government and the highest sphere is the national sphere of government. 18 Each
of these 3 spheres ‘have an equal constitutional status’.19 An important case establishing that
local government is no less powerful than the other two spheres of government is the case
of City of Cape Town and Others v Robertson and Others.20 Moreover, ‘no sphere may
unreasonably interfere in the powers and functions of any other sphere’. 21

6. The formal removal of an official office-bearer for gross misconduct or gross

incompetence is known as recusal.
False. The correct term for the formal removal of an official office-bearer for misconduct or
incompetence is impeachment.22 Impeachment is most often associated with the removal of
the president from office (as defined in section 89 of the Constitution) but this has never
occurred in South Africa. Impeachment has been the issue in two recent and important cases,
echoing the sentiment in the EFF 1 case, where it was held: ‘public office-bearers ignore their
constitutional obligations at their peril’.23 The first relates to the impeachment of John Hlophe
– the first judge to be impeached since South Africa became a democracy (along with Nkola
Motata).24 The second relates to the impeachment of Busisiwe Mkhwebane, the former Public
Protector. Recusal, on the other hand, is when a judge is perceived to be biased and then
formally states that they will not hear the particular case either by acting on their own volition
or if an application has been made indicating that there is a perception of bias.

17 Glenister v President of the Republic of South Africa and Others 2011 (3) SA (CC) (Glenister II).
18 de Vos & Freedman 302, referring to sec 40(1) of the Constitution.
19 Mbuzeni Mathenjwa Supervision of Local Government (2017) Juta 24, as quoted in de Vos & Freedman 302.
20 2005 (2) SA 323 (CC) para 60.
21 de Vos & Freedman 302.
22 de Vos & Freedman 185.
23 EFF I para 1.
24 Sec 177(1)(a) of the Constitution. See also ‘The importance of Hlophe and Motata’s impeachment vote for
judicial accountability’ Judges Matter (21 February 2024) <https:// www.judgesmatter.co.za/opinions/the-
importance-of-hlophe-and-motatas-impeachment-vote-for-judicial-accountability/>.
7. According to the case of de Lille v Speaker of the National Assembly 1998 (3) SA
430 (C), parliamentary privilege is the right to freedom of speech of members of
parliament and the protection not to be held liable to civil or criminal proceedings,
arrest, imprisonment or damages for saying or revealing anything in Parliament.
True. In her capacity as a member of the Pan Africanist Congress and a duly elected member
of the National Assembly, Patricia de Lille had made statements in the National Assembly,
referring to some members as ‘spies for the apartheid government’.25 She was subsequently
suspended from the National Assembly ‘as a form of punishment’.26 Judge John Hlophe (as
he then was) made the determination that the powers of the National Assembly to regulate
their own affairs did not go as far as including ‘the power to suspend a member for contempt’.
The suspension had the effect of ‘inhibit[ing] the privilege of freedom of speech guaranteed
in section 58(1) of the Constitution’.27

8. The responsibility placed on the legislature to include the views of interested

parties by permitting submissions being made and considering these views in
good faith is known as public participation.
True. Section 57(1)(b) of the Constitution confirm that the rules made by the National
Assembly must have ‘due regard to representative and participatory democracy,
accountability, transparency and public involvement’. Likewise, section 72(1)(b) requires that
the National Council of Provinces ‘make rules and orders concerning its business, with due
regard to representative and participatory democracy, accountability, transparency and
public involvement’. These provisions highlight that public participation is a non-negotiable
imperative in the law-making process.; described as the method of meaningfully linking the
population ‘with processes of the state’28 and being ‘intrinsic to the core meaning of
democracy’.29 Democracy, it is argued,
can only function optimally if members of the public are informed about the activities of
Parliament and if they are provided with an opportunity to get involved in some way or another
in those activities.30

25 de Vos & Freedman 119.

26 de Vos & Freedman 89.
27 de Vos & Freedman 119.
28 Janine Hicks & Imraan Buccus ‘Crafting new democratic spaces: Participatory policy-making in KwaZulu-
Natal, South Africa’ (2007) 65 Transformation 95.
29 Hicks & Buccus 98-9
30 de Vos & Freedman 123.
One of the most informative of cases concerning public participation in the legislative process
is the case of Doctors for Life International v Speaker of the National Assembly and Others31
where the Court held that
where Parliament failed to take reasonable steps to facilitate public involvement in the law-
making process, it would have failed to comply with section 59(1) or section 72(1) of the
Constitution respectively, any law enacted in such a procedurally flawed way would then be null
and void and of no effect.32

Despite the precedent accordingly having been set, there have been a number of subsequent
cases still relating to the failure to afford public participation, such as the cases of Matatiele
Municipality and Others v President of the Republic of South Africa and Others;33 Merafong
Demarcation Forum and Others v President of the Republic of South Africa and Others;34
Moutse Demarcation Forum v President of the Republic of South Africa;35 Land Access
Movement of South Africa v Chairperson of the National Council of Provinces;36 and South
African Veterinary Association v Speaker of the National Assembly.37

9. “Confirmation” is the pre-requisite process in order for a national or provincial

constitution to become law.
False. The correct term for this is “certification”. Certification was required after the
Constitutional Assembly had drafted a new Constitution based substantially on the provisions
of the Interim Constitution38 and ensuring that the 34 Constitutional Principles had been
incorporated into the Constitution. The Constitutional Court first dealt with the certification of
the new Constitution in the case of Certification of the Constitution of the Republic of South
Africa, 199639 but could not certify the Constitution as there was a series of fatal flaws. The
Constitutional Assembly thus amended the Constitution and then referred it once again for
certification in the case of Certification of the Amended Text of the Constitution of the
Republic of South Africa, 1996.40 This version was certified, and the Constitution entered into
force as the final Constitution (albeit that it has been amended numerous times).

31 2006 (6) SA 416 (CC).

32 de Vos & Freedman 124 citing para 209 in particular.
33 2007 (1) BCLR 47 (CC).
34 2008 (10) BCLR 968 (CC).
35 2011 (11) BCLR 1158 (CC).
36 2016 (10) BCLR 1277 (CC).
37 2019 (2) BCLR 278 (CC).
38 Constitution of the Republic of South Africa, Act 200 of 1993.
39 1996 (4) SA 774 (CC).
40 1997 (1) BCLR 1.
The principle is the same for provincial Constitutions, as evidenced in the cases of, inter alia,
Certification of the Constitution of the Western Cape, 1997;41 Certification of the KwaZulu-
Natal Constitution.42

10. Universal adult suffrage; a national common voters roll; regular, free and fair
elections; and a multi-party system of government characterise democracy.
True. From the outset, that is, section 1 of the Constitution, it is unambiguously stated that a
founding premise of the Republic of South Africa is that it is a democratic state, with universal
adult suffrage, a national common voters roll, regular elections and a multi-party system of
democratic government, as inherent features.43 The structure of the Constitution reinforces
this principle because each of these features is elaborated upon in depth in various provisions
of the Constitution. Case law to illustrate this submission includes the case of AParty and
Another v The Minister for Home Affairs and Others44 where the Constitutional Court
recognized that section 33 of the Electoral Act ‘unfairly restricted the right to cast special
votes while abroad to a very narrow class of citizens’.45 The Court thus interpreted the
Electoral Act in a permissive fashion, ordering that all citizens who would be outside of South
Africa on the date of the elections in 2009 were allowed to vote, on condition that they had
complied with the requirement to register to vote in the election.46

11. The rule of law is arguably the most fundamental feature of South Africa’s
democratic dispensation: it imposes a binding duty on the government and
individuals to adhere to prescribed conduct.
True. The rule of law is mentioned in the very first section of the Constitution – that is, in
section 1(c), therefore illustrating its importance. An explanation of the meaning and content
of the rule of law has been elucidated in case law, underscoring its prominence in our
constitutional democracy. In the Nyathi case, the court stated: ‘In a State predicated on a
desire to maintain the rule of law, it is imperative that one and all should be driven by a moral
obligation to ensure the continued survival of our democracy’. 47 It is no surprise, therefore,
that in the case of Economic Freedom Fighters v Speaker of the National Assembly (EFF I)48

41 1998 (1) SA 655 (CC).

42 1996 (11) BCLR 1419.
43 Sec 1(d) of the Constitution.
44 2009 (3) SA 649 (CC).
45 de Vos & Freedman 137.
46 de Vos & Freedman 137 quoting the case of Richter v The Minister for Home Affairs and Others 2009 (3)
SA 615 (CC) para 108.
47 Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another 2008 (9) BCLR
865 (CC) at para 80, per Madala J.
48 2016 (5) BCLR 618 (CC).
the Court held that: ‘our constitutional order hinges also on the rule of law’49 and that ‘The rule
of law requires that no power be exercised unless it is sanctioned by law’.50 We have
witnessed the consequences of the failure to comply with the rule of law in cases such as the
impeachment of Judges John Hlophe and Nkola Motata where Hlophe had been found guilty
of interfering in the independence of the judiciary (contrary to section 165 of the Constitution)
and Motata had brought the judiciary into disrepute when he collided with a concrete wall while
inebriated and then hurled racial slurs at the owner of the property in question.

Another example of the failure to comply with the rule of law is when students engage in
academic dishonesty, such as plagiarism or rely on ChatGPT to answer questions in an
examination (hence the answers referring to foreign case law such as Roe v Wade 410 U.S.
113 (1973) or Indian case law). In those instances, students are referred to the Student
Disciplinary Unit where a sanction of exclusion from the university for 2 years may be
imposed. This sanction remains on the student’s Academic Record (see the example below
as evidence) and will make it almost impossible to secure employment in future.

12. The case of Roe v Wade 410 U.S. 113 (1973) is excellent authority when conveying
how the separation of powers doctrine operates in the South African context.
False. This is a case from the United States, so it is of very little consequence to South Africa.
In any event, South Africa has developed its own unique form of separation of powers which
is more flexible than the American form, thus this case is of no value to South Africa’s
constitutional jurisprudence. It is always necessary to rely on the most relevant and
appropriate case law to substantiate your answers.

13. A far-reaching and intrusive power conferred on the executive branch within any
of the nine provinces to guarantee that a municipality within such province
complies with a statutory or constitutional obligation is “intervention”.
True. Section 155(7) of the Constitution permits national and provincial government to
regulate local government so as to ensure ‘the effective performance by municipalities of
their functions in respect of the matters listed in Schedules 4 and 5’.51 Although the national

49 EFF I para 74.

50 EFF I para 75.
51 de Vos & Freedman 345.
and provincial government is permitted to ‘control’ the exercise of municipal powers and
functions, this is intended to be ‘hands-off’ in approach.52 Nonetheless, it can be argued that
intervention is the most intrusive of powers, because section 139(1) of the Constitution does
permit intervention by the provincial executive to ensure compliance with an executive
obligation in terms of the Constitution or legislation by way of ‘taking any appropriate steps
to ensure the fulfilment of that obligation’.53 The intrusive nature of intervention is apparent
from the fact that appropriate steps may include: ‘issuing a directive, assuming responsibility
and dissolving a municipal council’.54 There are three distinct forms of intervention, namely:
regular intervention; budgetary interventions; and financial crises interventions. 55 In respect
of regular interventions, there are some provisos, such as that the provincial or national
government can only assume responsibility ‘in respect of the particular obligation that the
municipality was failing to perform’.56 In addition, such assumption of responsibility must
exclusively be necessary ‘to maintain essential national standards or to meet the established
minimum standards for the rendering of services’; 57 and ‘to prevent the municipal council
from taking action prejudicial to the interests of the municipality or to the province’. 58 The
intervention must be necessary to ‘maintain economic unity’ 59 and before any intervention
can occur, written notice of the intention to intervene must be addressed to the municipality.
Should any of these methods of regular intervention not succeed, and if exceptional
circumstances exist, the municipal council may be dissolved.60

14. Section 146 of the Constitution contains the method to determine which Act will
prevail when there is uncertainty about the status of a national or provincial law.
True. When we are referring to the power to pass a law in terms of Schedule 4A and Schedule
5A, section 146 of the Constitution provides the formula to resolve the conflict and establish
which law prevails.61 In casu, provincial legislation will prevail unless one or more requirements
listed in section 146 itself is met, in which case the national legislation will prevail.62

52 de Vos & Freedman 345.

53 de Vos & Freedman 345.
54 de Vos & Freedman 345, citing Mnquma Local Municipality and Another v Premier of the Eastern Cape and
Others [2012] JOL 28311 (ECB).
55 de Vos & Freedman 346.
56 de Vos & Freedman 346, quoting to Mathenjwa 143.
57 de Vos & Freedman 346, referring to sec 139(1)(1)(b)(i) of the Constitution.
58 de Vos & Freedman 346, referring to sec 139(1)(1)(b)(ii) of the Constitution.
59 de Vos & Freedman 346, referring to sec 139(1)(1)(b)(iii) of the Constitution.
60 de Vos & Freedman 346, referring to sec 139(1)(c) of the Constitution.
61 de Vos & Freedman 320.
62 Sec 146(5) of the Constitution.
15. When referring to the Constitution of 1996 it is necessary to cite the Constitution
as the Constitution of the Republic of South Africa Act 108 of 1996.
False. The Citation of Constitutional Laws Act 5 of 2005 has changed the way that we are
supposed to refer to the Constitution.63 In terms of section 1(1) of this Act, no Act number is
to be associated with ‘The Constitution of the Republic of South Africa, 1996’. The Preamble
to this Act explains the rationale for this, namely that it is because the Constitution is the
supreme law of the Republic of South Africa and it was not passed using the same procedure
as other/ordinary legislation. Specifically, the Constitution was drafted and adopted by the
Constitutional Assembly; not the National Assembly. To ensure that the Constitution is
treated differently in light of its status, no Act number must be cited when referring to the
Constitution. Furthermore, section 243(1) of the Constitution had already mentioned that
‘This Act is called the Constitution of the Republic of South Africa, 1996’.

16. The recommendations of the Public Protector are not binding.

False. It is the case of Economic Freedom Fighters v Speaker of the National Assembly 2016
(EFF I) that resulted in the outcome that the recommendations of the Public Protector are
indeed binding and enforceable. The Court had been tasked with clarifying and affirming the
Public Protector’s constitutional powers to take appropriate remedial action,64 given that the
remedial action contained in the Public Protector’s report Secure in Comfort involving
upgrades to the Nkandla Homestead of President Jacob Zuma (as he then was) had been
ignored.65 The Court carefully analysed section 182 of the Constitution and section 8(2) of the
Public Protector Act66 and remarked that
The obligation to assist and protect the Public Protector so as to ensure her dignity and
effectiveness is relevant to the enforcement of her remedial action. The Public Protector would
arguably have no dignity and be ineffective if her directives could be ignored willy-nilly. … The
words “take appropriate remedial action” do point to a realistic expectation that binding and
enforceable remedial steps might frequently be the route open to the Public Protector to
take. “Take appropriate remedial action” and “effectiveness”, are operative words essential for the
fulfilment of the Public Protector’s constitutional mandate.67

The Court ultimately declared that the recommendations of the Public Protector are binding 68
specifically if the recommendations are designed to remedy any breach of a constitutional
obligation.69

63 This change become operational and effective on 27 June 2005.

64 EFF I para 4 at (e).
65 EFF I paras 2 and 3, as read with paras 5 to 14.
66 Act 23 of 1994.
67 EFF I para 67.
68 Point 3 of the Order in the judgment.
69 See the Commentary to the case contained in CSL2601 Tutorial Letter 102/2024, 140.
17. Local government elections will be taking place in South Africa in May 2024.
False. It is national and provincial government elections that are taking place in May 2024.
In South Africa the form of representative democracy necessitates that there is ‘a system of
governance in which the members of a political community participate indirectly through
elected representatives’ and this is ‘for a limited period of time until the next election’.70
Section 49(1) of the Constitution makes it clear that ‘The National Assembly is elected for a
term of five years’. If we calculate when the six previous ‘administrations’ were elected, over
the past 30 years of democracy, we conclude that it is national and provincial elections that
are scheduled to take place in the first half of 2024. Local government elections are scheduled
to take place in 2025. We should also be acutely aware of this since every citizen over the
age of 18 is eligible to register to vote; and to vote in the elections consistent with being
responsible citizens who wish to participate meaningfully in decisions affecting our lives.71

18. Parliament is prohibited from delegating subordinate regulatory authority to other

bodies.
False. There is absolutely ambiguity in the fact that section 44(1)(a)(iii) of the Constitution
permits Parliament to assign legislative authority to a legislative body in another sphere of
government (except the power to amend the Constitution).72 The delegation of legislative
power to the executive is slightly more complicated, but in the case of Executive Council of
the Western Cape Legislature and Others v President of the Republic of South Africa and
Others, the Constitutional Court concluded that
in a modern state, Parliament cannot be expected to deal with all such matter itself and it is
therefore necessary for effective law making to read the power to delegate such legislative
functions to other bodies into the Constitutions.73

What is not permitted, though, is the delegation of ‘plenary legislative power to another body’
as this is inconsistent with the doctrine of separation of powers and could give rise to a
constitutional crisis.74

19. In terms of the Constitution of the Republic of South Africa, government spheres
should resolve their problems and disputes in the Constitutional Court.
False. Section 41(1)(h)(vi) places the obligation on spheres of government to ‘avoid legal
proceedings against one another’. This provision is somewhat unnecessary if regard is had

70 de Vos & Freedman 88.

71 Sec 46(b) and (c) of the Constitution.
72 de Vos & Freedman 176.
73 1995 (4) SA 877 (CC) para 51.
74 de Vos & Freedman 176.
to the preceding principles upon which intergovernmental relations between the three
spheres of government should be conducted in that section 41(1)(e) requires the spheres of
government to ‘respect the constitutional status, institutions, powers and functions of
government in the other spheres’; and section 41(1)(f) places the duty on spheres of
government ‘not to assume any power or function except those conferred on them in terms
of the Constitution’. Section 41(1)(g) and (h) confirm the need to ‘foster friendly relations’ and
‘not encroach on the geographical, functional or institutional integrity of government in
another sphere’. If these principles are taken heed of, there should be very little conflict and
no need to resort to costly and time-consuming litigation to resolve any conflicts. Moreover,
in the Certification judgment, the Court pronounced that as far as possible, ‘disputes should
where possible be resolved at a political level rather than through adversarial litigation’.75

Recourse to litigation is available in the event of a material dispute that cannot be resolved
amicably, but it is not to the Constitutional Court that the parties should refer the matter in the
first instance. A dispute of this nature is not encompassed within the meaning of a
constitutional matter that falls within the exclusive jurisdiction of the Constitutional Court as
provided in section 167(4) of the Constitution.

20. The state is a permanent object, whereas the government changes when elections
are held and this impacts on the composition of the legislature and the executive.
True. Section 1 of the Constitution provides that the Republic of South Africa is one,
sovereign, democratic state. The state of South Africa is internationally recognized as
constituting a permanent, defined territorial area, within which the government has exclusive
jurisdiction to regulate who may enter the territory and under what circumstances. The state
is also equal in sovereignty, implying that the state may operate on the global level and
interact with other sovereign states.76 Similarly, as per the Constitution itself, since the state
is static, ‘laws that were in force [before 1996] when the new Constitution took effect,
continues in force, unless it is inconsistent with the new Constitution’.77 The population of
South Africa is categorized into either citizens or foreigners. Citizens are entitled to the
‘common South African citizenship’, that carries with it the ‘rights, privileges and

75 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 and again confirmed in the case of Uthukela District
Municipality v President of the Republic of South Africa 2003 (1) SA 678 (CC) para 13.
76 Democratic Alliance v Minister of International Relations and Cooperation & Others ZAGPPHC (22 February
2017) where former President Zuma had signed an international treaty on behalf of the state of South Africa
but it was argued that this violated South Africa’s other international obligations.
77 Schedule 6(2)(1) of the Constitution.
responsibilities of citizenship’, alongside the ‘duties and responsibilities of citizenship’. 78
One’s citizenship, like the territory of the state of South Africa, does not change when
elections are held. What does change when elections are held, however, is the government.
Government is the term we use to refer to the executive branch of the state in that the head
of the executive is head of government and he/she is elected after a national election has
been held. The head of the executive also chooses a Cabinet to assist in the formulation of
policy and implementation of legislation. These official office-bearers are aware that the time-
frame for which they have been appointed is circumscribed by the Constitution itself and lasts
only until the next election. Another indication of the permanence of the state, is that every
criminal matter is registered in the name of the state (an example of which is S v Makwanyane)
against the accused person.79 This indicates that the pursuit of law enforcement is within the
purview of the state and not only of a temporary entity such as government.

Part B [20 marks]

Compare and contrast the institutions established in sections 178; 179; 182 and 190, of
the Constitution. Discuss the purpose, function and status of each of these
institutions. Rely on appropriate case law to convincingly substantiate your answer.

1 Introduction
If we take as our point of departure the ten fundamental principles of constitutionalism, 80 it is
clear that the institutions established in terms of sections 178, 179, 182 and 190 of the
Constitution are integral to ensuring that constitutionalism has substance and value. These
institutions individually and collectively facilitate the realization and achievement of the form
of constitutional democracy intended by the drafters of the Constitution, hence the emphasis
in section 1 of the Constitution to create a democratic state ‘to ensure accountability,
responsiveness and openness’. In this paper, the four institutions, namely the Judicial
Service Commission (JSC), National Prosecuting Authority (NPA), Public Protector and
Independent Electoral Commission will be explored with the aim of revealing their
contribution to upholding the rule of law and promoting a well-functioning state that has
appropriate mechanisms to see that justice is done and democracy is maintained. From a
conceptual perspective it is necessary to clarify that the Public Protector and Independent

78 Sec 3(2)(a) and (b) of the Constitution.

79 Sec 179(2) of the Constitution.
80 These principles include: constitutional supremacy; the rule of law; protection of fundamental rights; multi-
party democracy; regular free and fair elections; judicial independence; judicial review; institutions
established to promote constitutional democracy; separation of powers; an inflexible constitution; co-
operative government.
Electoral Commission are ‘Chapter Nine Institutions’, named after Chapter 9 of the
Constitution and these are two of the six institutions established to advance human rights
and democracy. On the other hand, the JSC and NPA are contained in Chapter 8 of the
Constitution dealing with the courts and the administration of justice. This distinction has no
consequence for the importance of these institutions.

2 Judicial Service Commission

The Judicial Service Commission (JSC) ‘may advise the national government on any matter
relating to the judiciary or the administration of justice’.81 Chaired by the Chief Justice,82 the
threshold for its decisions to be enforced is a simple majority of members voting in favour. 83

Although at first glance it appears that the JSC is an extremely large body that is heavily
influenced by politics,84 this is not necessarily the case because the Constitution itself
stipulates which members are not required to be present when specific decisions are made.
In this regard, it is important to note that ‘when [the JSC] considers any matter except the
appointment of a judge, it must sit without the members designated in subsection (1)(h) and
(i)’.85 This means that ten out of the twenty-three members (43%) are not required to be
present in the majority of the matters deliberated upon by the JSC. An interesting case where
the relevant person mentioned in the Constitution was not present (but should have been
invited) when a decision was made is the case of Zille v Judicial Service Commission where
the JSC had deliberated on whether John Hlophe should be found guilty of trying to
improperly persuade justices of the Constitutional Court in a matter concerning Jacob Zuma.
Zille succeeding in having the hearing declared invalid because of non-compliance with
section 178(1)(k) of the Constitution which requires that the Premier of the province must be
present when deliberating on a matter relating to a judge of that province.

3 National Prosecuting Authority

The criminal justice system relies on a well-functioning, effective, independent prosecuting
authority; not one riddled with corruption and ‘paralysing instability’.86 Overall responsibility
for instituting prosecutions is placed on the shoulders of the National Director of Public

81 Sec 178(5) of the Constitution.

82 Sec 178(1)(a) of the Constitution.
83 Sec 178(6) of the Constitution.
84 Sec 178(1)(a)-(k).
85 Sec 178(5) of the Constitution.
86 Corruption Watch NPC & Others v President of the Republic of South Africa; Nxasana v Corruption Watch
NPC 2018 (10) BCLR 1179 (CC) (Nxasana) para 6, citing Corruption Watch (RF) NPC v President of the
Republic of South Africa [2018] 1 All SA 471 (GP) para 19.
Prosecutions, although provincial Directors of Public Prosecutions and local prosecutors
operating in the provinces are conferred the authority to take operational decisions to
prosecute alleged perpetrators of criminal activity.87 An important safeguard is that the
National Director of Public Prosecutions may ‘intervene in a prosecution process when policy
directives are not complied with’.88

The determination of prosecution policy that will govern the effective implementation of the
Constitution and the National Prosecuting Authority Act is the remit of the National Director
‘with the concurrence of the Minister of Justice and after consulting the provincial Directors
of Public Prosecutions’.89 Whereas this seems to entail that there is the potential for executive
interference in the independence of the prosecuting authority in that the Minister of Justice is
required to be involved, there is no evidence that this has negatively impacted the
independence of the prosecuting authority.90 It is noted by de Vos and Freedman that the
Minister could potentially veto a policy proposal. In any event, the Prosecution Policy is
consistent with the guidelines in effect in other ‘functioning democracies’, which are general,
open-ended and permit prosecutors to use their discretion by considering ‘an evidential and
public interest test’ so in reality there is no cause for concern.91 There have, however, been
documented instances of executive interference in the functioning of the prosecuting
authority. The first is with respect to the decision to prosecute Jacob Zuma for corruption92
and the second is when Mxolisi Nsasana received a R17.3 million “golden handshake” to
vacate his position. The consequences were severe in both instances: former President
Thabo Mbeki’s role ultimately lead to his recall by the ANC. In the Nxasana matter, former
President Jacob Zuma’s conduct in paying the R17.3 million to coerce Nxasana to vacate
office was declared unconstitutional and invalid.93

4 Public Protector
Corruption within state departments is endemic. One measure introduced to eradicate this
corruption is the Office of the Public Protector. Accordingly, the function of the Public
Protector is to ‘investigate any conduct in state affairs, or in the public administration in any
sphere of government, that is alleged or suspected to be improper or to result in any

87 de Vos & Freedman 272-273.

88 de Vos & Freedman 273, referring to sec 179(5)(c) of the Constitution, read with sec 22(2)(b) of the NPA Act.
89 de Vos & Freedman 273, referring to sec 179(5)(a) of the Constitution, read with sec 22(2)(a) of the NPA Act.
90 de Vos & Freedman 273.
91 de Vos & Freedman 273.
92 Zuma v National Director of Public Prosecutions 2009 (1) BCLR 62 (N).
93 Nxasana parts 4, 5 and 6 of the Order.
impropriety or prejudice’.94 The Public Protector Act supplements the Constitution, by
including the power in section 4 thereof, to the Public Protector –
(a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged –
(i) maladministration in connection with the affairs of government [in any sphere];
(ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper
conduct or undue delay by a person performing a public function;
(iii) improper or dishonest act, or omission or offences … as it relates to the Prevention and
Combating of Corrupt Activities Act, 2004, with respect to public money [ie; corruption];
(iv) improper or unlawful enrichment, or receipt of any improper advantage, or promise of such
enrichment or advantage, by a person as a result of an act or omission in the public
administration or in connection with the affairs of government at any level or of a person
performing a public function; or
(v) act or omission by a person in the employ of government [in any sphere], or a person
performing a public function, which results in unlawful or improper prejudice to any … person.

The significance of the Public Protector is that this institution is accessible to all members of
the public as its services are free of charge. The Public Protector has thus played an
enormous role in remedying injustice and prejudice caused by public officials who have not
executed their duties in good faith and in terms of the relevant legislation that they are
required to implement.95 Possibly even more relevant is the status of the decisions of the
Public Protector: it is now settled that the recommendations of the Public Protector are
binding and must be implemented.96

5 Independent Electoral Commission (IEC)

As its name denotes, this institution is expressly independent, and this is for good reason.
It’s function – in section 190(1) of the Constitution – is to
(a) manage elections of national, provincial and municipal legislative bodies in accordance
with national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections.

Preparation for an election in a large, highly populated country such as South Africa requires
considerable resources. For this reason, it is imperative that the IEC is allocated sufficient
funding by the government. This was the issue in the case of New National Party v
Government of the Republic of South Africa and Others97 where it was explained that

94 Section 182(1)(a) of the Constitution.

95 de Vos & Freedman 293.
96 EFF I.
97 1999 (3) SA 191 (CC).
Parliament is responsible for setting the IEC’s budget, but Parliament must ensure that
adequate funding is made available. In the event that there is any dispute regarding the
amount, both Parliament and the IEC must seek to ‘resolve that tension and to reach an
agreement by negotiation and good faith’.98 This financial independence is crucial to ensuring
that the elections are indeed free and fair.

6 Analysis and Discussion

One of the most important features of these four institutions is that they are all independent,
entailing that under no circumstances may any person interfere in execution of the duties of
these institutions.99 Notwithstanding the fact that it is the President, as head of the national
executive, that appoints the head of each of these four institutions, this does not mean that
the incumbent is beholden to the President or should favour the President in any decision.100

The IEC is currently in the midst of preparing for the elections taking place on 29 May 2024.
We have already witnessed the concerted effort to ensure that all eligible voters have
registered to vote and we have also witnessed the IEC making determinations as to who is
eligible to stand for elections or not, with Jacob Zuma being a specific case in point. The
outcome of the challenge in the Constitutional Court to the Equality Court’s decision of 9 April
2024 that Jacob Zuma is eligible to stand for election will surely enhance our constitutional
democracy by providing clarity and certainty.

7 Conclusion
Central to South Africa’s transformation is the creation of a society where there is
predictability in the law and equal application of that law. The four institutions discussed
above all play a significant role in anchoring the Constitution law to maintain steady and
consistent application of the rule of law. In turn, it is incumbent on everyone to treat these
institutions with the requisite dignity.101

98 de Vos & Freedman 290.

99 Stated plainly in the case of Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925
(CC) at para 27-29: ‘as it is not an organ of state in the national sphere of government … these institutions
cannot simultaneously be independent of and yet part of government’.
100 See secs 174(3); 179(1)(a) and 181(2) of the Constitution.
101 Sec 181(3) of the Constitution.