Constitutional Law 214

Thomas Martin Claassens

 1. STRUCTURE OF GOVERNMENT: INTRODUCTION

Prescribed material
- Pages 56-75 of the prescribed textbook
- Chapter 3 of prescribed textbook
- Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution
of the Republic of SA 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras 106-113
- South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC) paras 5-
9, 11, 16-46
- Moseneke D ‘Oliver Schreiner Memorial Lecture: Separation of Powers, Democratic Ethos
and Judicial Function’ (2008) 24 SAJHR 341-353

Purpose of the Constitution

- creates institutions
- awards power
- and constraints power

Creation of state institutions

1. Legislature
- National
- Provincial
- Local

2. Executive
- National
- Provincial
- Local

3. Judiciary

Interaction between the state institutions is vertically and horizontally to prevent the abuse of
power by constraining it.

Separation of powers doctrine

Four principles of this doctrine:

1. Trias politica (3 branches of government)
2. Separation of functions
3. Separation of personnel
4. Checks and balances

Apartheid system did not clearly separate power and personnel + did not have effective checks
and balances. Lead to exclusion and infringement of human rights. Transition from parliamentary
sovereignty to constitutional supremacy – Constitutional principle 6 of the IC

“There shall be a separation of powers between the legislature, executive and judiciary, with
appropriate checks and balances to ensure accountability, responsiveness, and openness.
 First Certification Judgement

Principle objection regarding violation of CP vi

Legal issue: No clear separation between members of executive and legislature, at all levels of
government (personnel) – with a supposed negative consequence

Court compared the USA, France, the Netherlands, and Germany, found that each country has
different definitions and systems when it comes to the separation of members and that there is
thus no prescribed universal model

The reason for the doctrine:

- functional independence
- checks and balances to maintain constitutional order
- prevent usurpation of powers

Intrusion sometimes necessary/ unavoidable within three branches

- South Africa makes use of partial separation

Separation of powers “makes the executive more directly answerable to the elected
legislature” (para 111)

- Q: In what ways?
Overlap provides a singularly important check and balance on exercise on
exercise
of executive power… more directly answerable. Members of Cabinet are
accountable collectively to Parliament of performance of functions. Members
compelled to provide Parliament with full and regular reports. Legislature has
power to remove Pres and indirectly cabinet under S89 (New President has
power to elect new Cabinet) – S102 removes cabinet directly

- Q: Has the executive been more directly answerable to the legislature?

Ultimate finding on objection raised – not accepted

 First Certification Judgement – Textbook Discussion

The CC had to deal with arguments that the Constitution, which provides for the members of the
Executive also to be members of the Legislature, contravened the principle of the SoP

Reason: Did not allow for a complete separation of personnel between the legislature and the
executive as members of Cabinet remain members of the legislature and Members of Cabinet are
thus able to exercise a powerful influence over the decision of the legislature.

No Constitutional scheme can reflect a total separation of powers. Frankfurter J: “Areas are partly
interacting, not wholly disjointed”

Separation of power doctrine: not a fixed or rigid constitutional doctrine. Expressed in many
different forms and subject to checks and balances of different kinds. It can thus not be said that a
failure in the constitution to separate completely the functions of exec and leg is destructive of the
doctrine. Overlap provides important check and balance on the exercise of exec power. Makes the
exec more directly answerable to the legislature.

1. In the First Certification Judgment, what was the Constitutional Court’s response to the
objection that the constitutional text did not provide for a complete separation between the
legislature and the executive? Does the overlap strengthen constitutional democracy?

The court held that although there isn’t a complete separation of powers, it isn’t what the 6th
Interim Constitutional Principle indicated. The principle of the SoP indicates that there must be a
separation of powers but does not specify to which degree this separation is. The court used other
countries such as the Netherlands and Germany to indicate the different forms of separation of
powers within a governmental sphere.

The court also indicated that an overlap of branches is expected, as there are guidelines in the
Constitution which provides for the overlap and the procedures to deal with it. The court also held
that the overlap between the legislature and the executive branch provided that the executive is
more accountable to the legislature. It can thus be derived that this overlap strengthens
Constitutional democracy as the legislature is elected by the citizens of South Africa and that the
executive is now more answerable to them.

Separation of powers and the judiciary

SA Association of Personal Injury Lawyers V Heath 2000 (CC)

President appointed judge as head of Special Investigating Unit (SUI) in terms of

legislation, requiring a judge to perform executive functions.

Two main points:

- Absolute separation between judiciary on the one hand and the executive and legislature
on the other
- Importance of Judicial independence; role of judiciary: para 25 – ‘crucial for the discharge of
this duty is that courts be and be seen to be independent’
This case concerns the constitutional validity of provisions governing the functioning of the Special
Investigating Unit (SIU) headed by Mr Justice Heath, which was set up to investigate serious
malpractices and maladministration within state institutions and in connection with state assets
and public money.

The validity of the appointment of a judge to head the Special Investigating Unit in an
unanimous decision by Chaskalson P, the Court held that the appointment of a judge to head the
SIU violated the separation of powers required by the Constitution. The Court stressed the
importance of the separation of the judiciary from the other branches of government and the need
for courts to be and to be seen to be independent of the legislature and the executive so that they
can discharge their duty of ensuring that the limits to the exercise of public power are not
transgressed.

Finding: judiciary has a very important and sensitive role in making sure the BoR is executed.

- Should be clear separation from judiciary + executive

- Appointment of SUI was found inconsistent with the SoP Doctrine implied in the
Constitution.
- Court invalidated the appointment through the doctrine.
 2. SEPARATION OF POWERS AND THE NATIONAL LEGISLATURE

Prescribed material
- Chapter 4 of the prescribed textbook
- Chapter 4 of the Constitution, 1996
- Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC);
2006 (12) BCLR 1399 (CC) paras 32-41; 73-89; 101-147; 225
- Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill
- 2000 1 SA 732, as discussed in prescribed textbook
- Mogale v Speaker of the National Assembly 2023 (6) SA 58 (CC)
- Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 6 SA 588 (CC),
as discussed in prescribed textbook
- Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580
(CC) [EFF 1]
- Economic Freedom Fighters v Speaker of the National Assembly 2018 2 SA 571 (CC) [EFF
2]
- Majority judgment of Jaftha paras 133-157 (factual background); 172-196 (s 89); 197-207
(Parliament’s obligation); 209-217 (remedy); 218-220 (separation of powers)
- Dissenting judgment of Moegoeng paras 223-276
- Dissenting judgment of Zondo paras 84-99 (Parliament’s obligation); 100-119 (s 89)5
- United Democratic Movement v Speaker of the National Assembly 2017 (5) SA 300 (CC)
paras 57-88
- Mazibuko v Sisulu 2013 (6) SA 249 (CC) paras 7-13; 26-32; 63-66

National Legislature: Parliament

Parliament consists of the National Assembly and the National Council of Provinces (Bicameral
Legislature)
- Interest of people (NA)
- Interest of provinces (NCoP)
- NA is politically more dominant

Role of political parties

- Democratic link between the voters and the legislature is mediated through political parties
- Person cannot become member of one of the houses if not part of political party (Party
government)
- Electoral system

Party government
 - Political parties influence composition, direction (policies), actions of Parliament

UDM v Speaker of the National Assembly (CC)

- CC confirmed that when a conflict arises for members of legislature between upholding C
values and party loyalty, members have a duty to serve the people and do what is in their
best interest
- Whether speaker of NA was permitted to order members of NA to vote by secret ballot to
impeach President
- The speaker has such power, and members may suffer consequences if leader of party know
their vote.

“Members of parliament must ‘serve the people and do only what is in their best interest’”

National Assembly

At first sitting the NA must elect the speaker, deputy speaker and the president (S51)

1. Composition and election – s46

- 350 – 400 members
- Proportional representation system

In the Electoral Amendment Act of 2023, a new formula for determining the proportion of seats in
National Assembly has been introduced. The NA is divided into 200 “regional” seats and 200
“compensatory” seats. In other words, 200 of the seats will be filled by members of political parties
and the other 200 will be distributed to independent candidates (if they have enough votes) and
candidates from political party lists contesting the nine regions.

2. Membership to NA – s47
- “Every citizen who is qualifies to vote for the NA”

3. Duration of the NA – s49

- 5 years but s50(1) and (2)

S50(1) - “President must dissolve NA; 50% + 1 vote; 3 years have passed since
election

- Force new national election within 90 days without vote of no confidence

- Ensure political advantage of party
- Correct timing when party is popular: soccer world cup

S50(2) - “Acting president must dissolve the NA in case of vacancy in the office of President and
NA cannot decide on new Pres within 30 days”

- Majority party – enforce party discipline to elect new President

Vacancy arises when Pres is removed due to vote of no confidence (S102), resign, death,
impeachment (S89).

Functioning of the National Assembly

- Represents the people of South Africa as a whole

Four main tasks: S43(2)

1. Elects President – S43(3)
2. Serves as national forum for public consideration of issues -S55(2)(c); Oversight of organs
of state and executive
3. Considers and passes legislation (with NCoP)
4. Scrutinises and oversees executive action, holding executive accountable

NA control own internal arrangements, proceedings and procedures with regard to –S57(1)(a)&(b)
- UDM case

Speaker/ Deputy Speaker presides over the NA

- Keep discipline of the NA and rule objections by members
- Administrative Head of Parliament
- May not exercise discretion for self or party
- Required to exercise powers as prescribed to use
- UDM case: power cannot be used arbitrarily

“Speaker must ensure that his or her decision strengthens that particular tenet of
our democracy and does not undermine it”

National Council of Provinces

- Not to be confused with provincial legislature

- Purpose: represents provinces, ensure provincial interest are considered in national sphere
of government
- NCoP ensures that provincial interests are considered in that national sphere of government

1. Composition – allocated proportionally

- 90 members (single delegation from 9 provinces)
- 10 members per province
Each province has 4 special delegates and 6 permanent delegates

Special delegates:
- premier and 3 other members of provincial legislature - “composition may change from time
to time”

Permanent delegates
- Cannot be member of NCoP and provincial legislature
- Appointed by provincial legislature on the basis of party affiliation
- Lose seat if motion of no confidence or recalled by party that nominated them
- Majority in NA = majority in NCoP

Function of permanent delegation:

- Provide a continuous political presence at the NCOP, ensuring that 6 delegates are
permanently stationed at Parliament in Cape Town.

Function of Parliament

- National forum for debate on national issues [S42(3)].

- Maintaining oversight over organs of state (and national executive) [S55(2)(c)].
- Passing of legislation (with NCoP).
- Holding executive accountable.

Function of Parliament – 1. National Forum for debate

S42(3)
- National assembly
- Provides that NA is elected to represent the people and to ensure a government in terms of the
constitution
- Elects the president
- Provide a national forum for the public consideration of issue o Debate policy issues or issues
of national importance

S42(4)
- National Council of Provinces
- Provincial interests in national sphere
- Has input on legislation being passed

Overarching: provides platform for members to engage with each other

Function of Parliament – 2. Passing of legislation

Passing of legislation on National Level

- Parliament has the power to pass legislation on any topic, even those not explicitly listed in the
constitution, unless the constitution provides otherwise
- S44 of Constitution = POD: confers power on NA to amend constitution, and to pass legislation
on any matter.....

Schedule 4 of Constitution
- Functional areas of concurrent national and provincial legislative competence
- E.g.housing, healthcare, agriculture, environmental affairs, basic education

Schedule 5 of Constitution
- Functional areas of exclusive provincial legislative competence
- E.g.ambulance services, liquor licences, provincial roads and traffic, libraries

Conflict between national legislature and provincial legislature

- S146 of Constitution:
- Provincial legislation usually prevails, unless citeria in S146 of Constitution is present
- National legislation prevails over provincial legislation if provincial legislation is
detrimental to economic, health, or security interests, or impeded the implementation of
the national economic policy.

Passing of a bill

Passing of legislation starts with tabling a bill in parliament

S73(2): Only a cabinet member, deputy minister or members of NA may introduce a bill in
Assembly
- Usually done by a cabinet member in practice
S73(4): Only member/committee of NCoP may introduce a Bill in the council - Thus Bill can be
tabled in both houses in parliament

Bill needs to be tagged before being tabled - To identify type of bill, which will affect the process of
passing the bill

Tagging of bills
- S74: Bills amending the Constitution
- S75: Ordinary Bills not affecting the provinces
- S76: Ordinary Bills affecting the provinces
- S77: Money Bills

S74: Bills Amending the Constitution

S1: Founding provisions

- 75% of members of National Assembly must vote in favour of the amendment
- 6/9 provincial delegations to NCoP

Bill of Rights (chapter 2)

- 2/3 members of NA
- 6/9 provincial delegations to NCoP

Any other provision of the Constitution

- 2/3 members of NA
- 6/9 provincial delegations to NCoP, but only if...
1. Matter affects the NCoP
2. Amends provision dealing with provincial matter
3. Alters provincial boundaries

S75: Ordinary Bills not affecting the Provinces

Can only be introduced in the national assembly (not in the NCoP as well as with other bills)
If passed by the NA (simple majority), NCoP must vote

Voting in NCoP
- Each delegate to NCOP has one vote
- Majority of votes of those present (subject to quorum of 30 delegates being present) – 50%
+1

NcOP can vote to:

1. Pass the Bill

- Bill goes to president for signature
- Will only then become law
2. Pass with amendments or reject
NA can reconsider the bill
- Ignore the NCoP’s rejections or amendments and send original bill to president
- Incorporate amendments and send to president
- Decide not to proceed - Bill will lapse

S76: Ordinary Bills affecting the Provinces

“Any Bill whose provisions in substantial measure falls within a functional area listed in
schedule 4, be dealt with under S76”
- Ex Parte president of the RSA: In re constitutionality of the Liquor Bill 1999 (CC) PARA 2
- Also refer to Tongoane case

“Any Bill whose provisions substantially affect the interests of the provinces must be
enacted in
accordance with the procedures stipulated in S76”
- Tongoane v Minister for Agriculture and Land Affairs 2010 (CC) PARA 82

Whether a bill is a S76 Bill is determined in 2 ways

- S76(3) of the constitution
- 1. Provides an Explicit list of legislative matters in S76(3)(a)-(f)
If matters fall within this list, will be a S76 Bill
- 2. Whether the provisions of a bill in substantial measure fall within a concurrent provincial
legislative competence (in schedule 4)
Look to what the subject matter of the bill is, and if it affects the provinces

S76 Bill can be introduced by either the NA or NCoP

- But, once introduced in one house, it has to be sent to the other for assent

NB in which house it was introduced as different processes and consequences will follow:

1. NCOP INTRODUCES

If NCoP introduces the bill, to NA (2nd house) to pass, amend, or reject the bill then:

1. If NA passes the bill: sent to president to assent

2. If NA amends the bill: send back to NCoP
3. If NCoP accepted amendments, to President for signature
 4. If NA rejects original bill, or NCoP rejects amended bill, the Bill and/or amended Bill sent to
Mediation Committee
- Mechanism specifically established to reconcile the two houses
- Mediation Committee: 9 members from NA, 9 NCoP delegated (18 members in total)
- In order to reach a decision: 5 of each house must agree (5 from NA, 5 from NCoP =
10/18) o Must find a compromise – reconcile the two houses

Mediation committee can: pass the Bill of the NCoP, pass the amended Bill of NA, or pass own
version
- If Mediation Committee cannot agree within 30 days: Bill lapse
- Something seriously wrong
- Bill needs to be introduced again in different form
- If Mediation Committee passes amended NA Bill, to NCoP: If approved, to President
- If Mediation Committee passes NCoP Bill, to NA: If approved, to president

If Mediation Committee passes own version, to NA and NCoP, if approved, to President

2. NA INTRODUCES

1. If Bill introduced by NA; if NCoP amends bill; and then NA rejects amendment – bill sent to
Mediation Committee
2. If Mediation Committee approves original bill of NA, the NCoP must approve
3. If NCoP still does not approve, Bill lapses, unless NA overrides the decision by 2/3 majority
- Thus, NCoP cannot override NA if they have 2/3 majority
- NA has overriding mechanism – but this does not disregard the function of the NCoP

When a bill is sent to the president

Only when a bill has been passed, is it sent to the president for assent
S 79(1): President can refer Bill back to NA if concerned about constitutionality
- Emphasis on constitutionality
- Not political concerns, or about content

President has to specifically indicate which reservations he has, cannot send the bill back in
general
terms of constitutionality

1. If Parliament addresses all the concerns raised, President must sign

2. If parliament did not address all concerns, President can refer the bill to the Constitutional
Court for relief (ss 79(4))
- If the Constitutional Court decides that the bill is indeed constitutional, the president must
sign it

President does not have a general veto right

- Cannot for e.g. refuse to sign due to political reasons
 EX PARTE PRESIDENT OF THE RSA: IN RE CONSTITUTIONALITY OF THE LIQUOR BILL
2000 (CC)

Gives context about when the president refers a bill to the constitutional court due to
reservations about the constitutionality of that bill

- President had reservations about constitutionality of liquor bill

- Court had to answer 3 specific questions

1. Can CC only consider reservations as expressed by the president, or should it broaden its
scope and consider the entire bill?
- Court found specifically that it is limited to the specific reservations
- If a constitutional query is brought by the president, the bill does not need to be considered in
its entirety

2. Court had to consider whether or not the court’s determination of constitutionality, precludes or
restricts constitutional challenges that might come up at a later stage once the bill has been
passed?
- Its determination of the bill’s constitutionality does NOT preclude future constitutional
challenges of the billl once the bill has been enacted, EXCEPT those provisions that have
already been considered and their constitutionality determined based on the president’s
reservations.

3. Court did however left the question open if it could determine the constitutionality of provisions
which were indeed in obvious conflict with the constitution, but not specifically outlined or
highlighted in the president’s reservations

PUBLIC PARTICIPATION - DOCTORS FOR LIFE INTERNATIONAL V SPEAKER OF

NATIONAL ASSEMBLY

Dealing with passing of Four health statutes and the complaint thereto
- Choice on Termination of Pregnancy Amendment Act (CToP)
- Traditional Health Practitioner’s Act
- Dental Technicians Amendment Act
- Sterilisation Amendment Act

Issue - Complaint by doctors for life: NCoP did not comply with the constitutional
obligation to facilitate public involvement in the legislative process

- It is clear from facts that NA did comply with their duty, then NCoP was placed under scrutiny
- The question is whether the court can intervene by providing relief once a bill has been signed
but not yet under operation
- NCoP failed to invite for written participation or to hold public hearings
- Thus, NCOP failed in duty to have public participation in passing of legislation

Majority Judgement of NGCOBO J

- Necessary to determine if court must interfere

- Separation of duties – duty of legislature to make legislation and have public participation
- Before the bill is passed – courts cannot interfere
 Only president can approach courts before signing
- Duty to facilitate public involvement must be considered in light of
 Constitutional role of the NCoP in the legislative process (S42(4) of Constitution)
NCoP has a role to provide that provincial interests are taken into account on
 national level
 Nature of constitutional democracy
Democracy is representative
Constitution is based on will of people (preamble)
NA and NCoP must thus ensure public participation
Duty on NA and NCoP must facilitate this participation by for e.g. public hearings

MEANING AND SCOPE OF DUTY TO FACILITATE PUBLIC INVOLVEMENT (PART OF

JGCOBO J JUDGEMENT) - Parliament must act REASONABLY based on context

Reasonability test:
- Will depend on the facts of case and the applicable legislation – so no set rules

1. Nature and importance of legislation and intensity of impact of public

2. Practically possible with reference to time and expense
 Public involvement must be practically possible when looking at factors such as time
and expense
 However, the saving of money and time itself, does not justify the INADEQUATE
facilitation of public participation.
4. What does parliament consider to be reasonable
 Context of the legislation is considered
 As well as the urgency of the legislation

Mechanisms available to the NA to hold the National Executive Authority accountable:

- S92 of C – Members of Cabinet are accountable to Parliament and must report to Parliament
regularly
- Implies that members of the executive must explain their actions to Parliament and its
committees so that Parliament can check the exercise of power by members of the exec.
- This power is not merely discretionary – EFF 1 (Held by the court)

UDM v Speaker of the National Assembly

- Parliament is required to put effective mechanisms in place to achieve this accountability
Court held:
- Falls on Parliament to oversee performance of President and the rest of the Cabinet and hold
them accountable for the use of State power and the resources entrusted to them
- Sight never lost – all constitutional obligations must be performed diligently and without delay
- When regular checks and balances seems to be ineffective, or a serious accountability
breach is thought to have occurred – citizens’ best interests demand ultimate
accountability-ensuring mechanisms
- Measures – being voted out of office by electorate to removal by Parliament through a motion
of no confidence
- Reminds cabinet of worst repercussions
- Have to account to people who put them in this position

EFF 2:
- Public Protector made adverse findings against the President about use of public funds for
renovations
 - Findings are binding to everyone
- Despite these findings, NA had not taken appropriate action against President
- Minority parties tabled motion of no confidence, NA failed to follow required procedure to deal
with motion
- NA THUS FAILED TO HOLD PRESIDENT ACCOUNTABLE ITO S89
- If the NA followed constitutional procedure, it would have held the pres accountable
- Unclear – if minority parties didn’t table MoNC and NA did nothing, did they still hold the exec
accountable?

Power of Parliament to hold the executive accountable:

1. Powers of Parliament to call members of the exec and the public administration to account for
their activities. Enhances integrity. Refers to culture of transparency, responsiveness and
answerability. Enables public to judge performance of government.

2. Remedial action and even to dismiss members of executive who fail to account properly for
their actions. Establishment of institutional arrangements.

- Sections 56 and 69 – “may summon any person to appear before them to give evidence on
oath or affirmation, or to produce documents” (NA and NCoP)
- May require any person or institution to report to them
- Refuse to comply – compel with summons
- Further rules of NA and NCoP allow them to hold executive accountable
- Such as: posing questions and receive oral answers from Ministers, Deputy
- President and the President. (NA rules 138-140)

NA has distinct powers (not NCoP) to ensure democratic control over the executive
- S102(2) – pass a motion of no confidence in President as long as motion is supported by
majority of members
- President and other members of Cabinet must resign
Parties are not allowed to block this tabling

Mazibuko v Sisulu 2013 (CC)

- Declared NA rules invalid on the ground that it purported to do just that

- Deliberations -> deadlock
- Due to absence of clear choice, speaker decided that motion would not be tabled because NA
would struggle to debate and vote15
- DCJ Moseneke (majority judgement) – Constitution required NA rules to permit its members to
deliberate and vote on motion of no confidence
- Moseneke – motion of no confidence is a vital tool
- If not vote and deliberate – implicates the values of democracy, transparency, accountability
and openness
- Rules of NA may not “deny, frustrate, unreasonably delay or postpone the exercise of a right”
- Disagreement cannot lead to denying right to deliberate
- “Debated within a reasonable amount of time”
- Majority vote no confidence – President removed. Sometimes Presidents resign before vote of
no confidence

Section 89 – Impeachment
- Supporting vote of two thirds of its members on the grounds of a serious violation of the
Constitution or the law, serious misconduct or inability to perform functions of office
- Remove president on grounds of objective reasons, no political motivation
- S55 – NA devise mechanisms which allow NA to hold executive accountable
- Accountable – regular question and answer sessions

Function of NA: 3. Holding the Executive accountable

National Assembly has constitutional mandate to hold executive accountable

S42 (3) - NA obligation to scrutinize and oversee execution action.

S55(2)(a) - The NA must provide for mechanisms to ensure that all executive organs of state in
the national sphere are accountable to it.
- EFF v Speaker, National Assembly 2017 (CC) – EFF 2

NA holds democratic control over the national executive

- S102: motion of no confidence.
- S89: Impeachment

Impeachment ito S89(1)

Removal of president on certain grounds:
- Serious violation of Constitution or law.
- Serious misconduct.
- Inability to perform functions.
- First two mentioned grounds: may not receive any benefits and may not be re-elected.

Section 89 of the Constitution

EFF 1 (31 March 2016):

- Pres. Zuma benefitted unduly: upgrades to residence- non-security upgrades.
- Public Protector said pay back the money, must report to NA to trigger accountability role.
- NA instituted two ad hoc committees: absolved Zuma from any wrongdoing.
- Guilty of all charges.
- CC = NA failed in its constitutional duty to hold executive accountable.
- After judgement: 5 April 2016: Impeachment proceedings i.t.o. S89 failed.
- 10 November 2016: Motion of no confidence in terms of S102 failed.

EFF II (29 December 2017):

- One of the claims was that NA does not have mechanisms [S55(2)(a)] in place to hold
president accountable in terms of S89(1).

ECONOMIC FREEDOM FIGHTRS AND OTHERS v SPEAKER OF THE NATIONAL ASSEMBLY

AND ANOTHER 2017 (EFF 2)
Nkandla – President’s failure implements the Public Protector’s remedial action for some
time after the PP had released her report on the Nkandla project
- Main order: NA failed to put in place mechanisms and processes to hold President
accountable for falling to implement remedial action
- Other: compelling NA to convene a committee to investigate whether President was guilty of
impeachable conduct (Serious violation of the Constitution)

One of the claims was that the NA does not have mechanisms (S55(2)(a)) in place to hold the
president accountable ito S89(1). Court rejected that current rules of NA could be used to deal
with S89. Court found: no rules in place governing s89 and that the Assembly was bound by
Constitution to do so. Court held in judgement: Q&A and motion of no confidence ito S102 were
measures taken ito S89. Had own specific and unique requirements which Assembly was
mandated to create. Removal without queries = unconstitutional. Court ordered NA to make rules
within 120 days (commenced with)

Jaftha J (majority judgement)

- Found that case revolves around whether the NA fulfils the constitutional obligation in order to
have a mechanism in place which holds the president accountable in terms of S89
- For S89(1), you need a mechanism that is particularly tailored to determine whether grounds in
S89(1) exists or is present. Without rules to guide the process, S89(1) cannot be implemented
- Specific mechanism or committee must thus be established
- Place duty on NA to make rules regarding the impeachment process
- Parliament failed in this
- Court says the ad hoc committee (in response to Zondo J) is not sufficient
- Rules needed which must be specifically tailored for impeachment process
- NA thus not in accordance as they did not have such rules

Zondo DCJ (minority judgement)

- Disagreed with majority judgment

- Said this is particularly holding President Zuma accountable, not general accountability for all
presidents (not about permanent mechanism)
- If we look to S102 of Constitution, it does provide for an ad hoc committee
- Argued NA thus has a mechanism available, which can be used for S89(1)
- Thus S102 mechanism can be used for S89(1)-even if it is not aimed to it
- Criticism not justifiable and had been accepted as effective mechanism by other parties and
Acting Speaker

Mogoeng CJ (concurring minority judgement)

- Prescribing to the NA to always hold an enquiry, and to never rely on readily available
documented or recorded evidential materials to determine the grounds for impeachment =
 judicial overreach, a constitutionally impermissible intrusion by the judiciary into the exclusive
domain of parliament

S102 of the Constitution

Motion of no confidence

S102(1)
- Vote of no confidence in cabinet
S102(2)
- Vote of no confidence in president

Difference between 102(2) and 89(1) – EFF II paras 133-145

S102: anything that makes people lose confidence in the president. Present the reasons for
motion of no confidence and then NA can take a vote. 50% + 1 (majority vote). No consequences
when NA removed President in terms of S102.
S89: on specific grounds. There must be readily available evidence. Can’t just ask the NA. EFF 2.
You must have a specific mechanism in place to exercise S89. There must be a procedure how to
implement S89. NA did draft rules to implement S89 after EFF2. There are also rules made for the
impeachment of the Public Protector (removal of the PP is more or less the same as the removal
of the President). Two thirds majority vote. Consequences are different. No benefits because of
breaking the law, gross misconduct and may not be re- elected. [S89(1)(a) and (b)].

No party may block tabling vote of no confidence- Mazibuko v Sisulu 2013 (CC)

Speaker has the authority to order vote of no confidence to take place via secret ballot - UDM v
Speaker, National Assembly 2017 (CC)

Mazibuko v Sisulu 2013 (CC) - No party may block tabling of vote of no confidence.

- Mazibuko (leader of opposition) tabled vote of no confidence in terms of s 102(2) - Thus a

motion of no confidence in the president (subsection 2 of S102)
- If a motion of no confidence is tabled in parliament, it is sent to the chief whip's forum
- Motion sent to Chief whip's forum, they then discuss the motion
o The forum was unable to come to a consensus of the scheduling of the motion to be
discussed and voted on in the NA
- Motion of no confidence also has to be considered by the programme committee
- Due to deadlock about scheduling of motion of no confidence, Sisulu held vote cannot take
place
o Programme committee has to specifically look at programme and scheduling of events
and debates in parliament
o Committee could also not reach consensus on the motion of no confidence - Ultimately
Led to a deadlock
 o Committee headed by the Speaker of the national Assembly (Sisulu)
- Sisulu (Speaker) held that due to this deadlock in scheduling, the vote could not take place - It
was so because the Speaker did not have specific powers to resolve the deadlock

- CC: “A motion of no confidence in the president is a vital tool to advance our democratic
hygiene. It affords the Assembly a vital power and duty to scrutinise and oversee executive action”
– para 43
CC: “a motion of no confidence is perhaps the most important mechanism that may be
employed by Parliament to hold the executive to account, and to interrogate executive
performance” – para 44
CC: “NA rules ‘may not deny, frustrate, unreasonably delay or postpone the exercise of the right” –
para 47

Court found that rules of the NA are inconsistent with S102(2) specifically to the extent that
it failed to make provision for the unhindered exercise by a member of the NA to have a
motion of no confidence scheduled, deliberated on and voted on.

UDM v SPEAKER OF THE NATIONAL ASSEMBLY 2017 (CC)- Speaker has authority to
order vote of no confidence to take place via secret ballot.

Question: Whether the speaker was correct in ruling that she does not have the power to
order voting in motion of no confidence ito S102 to take place via secret ballot

Background: allegedly due to the president firing the finance minister, a motion of no confidence
was scheduled.
- Also: in order for motion of no confidence to pass (majority) members of the majority party who
had approximately 60% of the vote, had to vote against their own party

- UDM asked the speaker if the Constitution or NA rules require, permit or prohibit voting
to take place by secret ballot.

- UDM further states that when officials take office, they swear an oath to the people of the
country – and must thus act in their interests, BUT if they then vote against their majority party
– it could have negative political effects on them.

- There is no express provision that a motion of no confidence must take place via secret
ballot
- But for e.g. the Election of president and office-bearers take place via secret ballot
- So there is reference to look to

Speaker said she did not have authority in terms of law or rules to authorise the vote to
take place via secret ballot. Based on this response, the UDM approached the court for
relief as to who may then make the determination

But Constitution silent on procedure regarding voting for removal of president

- Why?
- = S57 (1)
- The NA can determine and control its own internal arrangements (look at NA rules).
NA must make specific rules for its internal arrangements, and the removal of the
president is one of the NA functions.

NA therefore has the power to determine whether voting takes place via open or secret
ballot = Both options constitutionally permissible
Court cannot order the NA to adopt one or the other due to separation of powers. NA has the
power to determine whether and how a motion of no confidence takes place and the court is not in
a position to legislate.

Speaker can then decide to conduct voting via a secret ballot – NA rules 103 + 104

This is however a judgement call for the speaker to make, it is not mandated.

What guides the Speaker’s determination?

1. Need to allow members to honour constitutional obligations.

- Members swear Allegiance to the Constitution, not to a political party.
- Allowing members of Na to vote without undue influence, intimidation or fear of disapproval
by others’
- Would manner of vote lead or expose members to hardships
- Considering effect on member of political party if the vote is an open vote
2. transparency, openness and faithfulness to the republic
3. Purpose for which motion of no confidence exists: Accountabilit
4. Would corruption enter the fray of the speaker’s determination and an open ballot rather than a
secret ballot

Ultimate decision: Speaker has constitutional power to prescribe voting by secret ballot

FUNCTION OF PARLIAMENT 4. MAINTAINING OVERSIGHT OF NATIONAL EXECUTIVE

AND ORGANS OF STATE

NA has function of oversight over day-to-day activities and implementation of legislation by

executive and organs of state

‘Organs of state’ in terms of S239

- Any department of state
- Any other functionary or institution exercising a power or performing a function ito Constitution
or provincial constitution
- Any other functionary or institution exercising a public power or performing a public function in
terms of any legislation, but not a court or judicial officer

Thus a university is also fo re.g. .a organ of state as it exercises a public power

3. SEPARATION OF POWERS AND THE NATIONAL EXECUTIVE

Prescribed material
- Chapter 5 of the prescribed textbook
- Chapter 5 in the Constitution, 1996
- President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC)
- President of the Republic of South Africa v Public Protector 2018 2 SA 100 (GP) paras 59-71
- Corruption Watch (RF) NPC v President of the RSA; Council for the Advancement of the
South African Constitution v President of the RSA 2018 1 SACR 317 (GP) paras 107-115
- Democratic Alliance v President of the RSA 2013 1 SA 248 (CC), as discussed in prescribed
 textbook
- Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580
(CC) [EFF 1] paras 72-99
- United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21 (22 June
2017) paras 57-88
- Albutt v Centre for the Study of Violence and Reconciliation 2010 3 SA 293 (CC), as
discussed in prescribed textbook

National Executive – Election of President

POD: S86 of Constitution

- Provides that president is elected by the NA as both the head of state and head of the
executive
- President is elected from the members of the NA (and must thus be a member of the NA
before election as president)
- Has to occur at the first sitting of the NA after an election had taken place, or in the case of a
vacancy of the office of the president
- President appoints members of cabinet, who forms the executive authority with the president
- Usually perform duties and govern for 5 years
- Date of election of the president is established by the Chief Justice, and has to take place
within 30 days of a vacancy arising within the office of the president

National Executive – Assumption of Duties

POD: S87 of the Constitution

- Once president is elected from the NA, they are no longer a member of the NA – but head of
state and head of the executive
- Those duties and when they start, must be within 5 days of the election of the president taking
place
Take office by;
1. swearing and affirming faithfulness to the Republic of South Africa and
2. also obedience to the constitution

National Executive – Term of office

POD: S88 of the Constitution

- Usual Period is 5 years (time between general elections)
- President can only serve for 2 full terms (10 years)]
- But exception as with president Ramaphosa, who stepped into a vacancy from Deputy of
President
- Vacancy between 2 general elections does not count towards the full 2 terms- Thus possible
for someone to serve as president for more than 10 years
 National Executive – Minimum Qualifications

Indirectly in S47 – which provides who can be a member of the NA

- If you are able to vote in a general election, you can be a member of the NA
- Voters don’t elect the president directly, vote for a political party or independent candidate,
but they indirectly affirm the candidate of a political party

National Executive – Vacancy in office

POD: S90 of the Consitution

- If president is not in country – deputy president steps in
- If president is unable to fulfil duties – such as illness, a vacancy arises
- Resignation or death
- Removal by means of S102 or S89
Refer to other vacancy

Removal of the President

Impeachment – S89
S89 – 2/3 majority of NA on listed ground (objective grounds)
a) Serious violation of the Constitution
b) Serious violation of the law
c) Serious misconduct
d) Inability to perform the functions of office
- Only commences when proven as a fact that President is guilty on one of the above
grounds(Necessary ground that fact is proven)

Cannot remove President ito this section due to majority support lost

When removed ito S89:

- Only when removed because of serious offences, not when unable to perform duties due to
illness etc
1. Prohibited from receiving any benefits (pension)
2. May not serve in any public office again

EFF 2: textbook (alludes to s89)

- Removal where ground isn’t established – unconstitutional and invalid (EFF 2)
- NA didn’t have specific procedure to establish these grounds – thus obliged to adopt rules
specifically in terms of S89
- Ad-hoc comm: in terms of existing rules of NA to determine whether grounds were present –
not an appropriate mechanism for such a “momentous task” as removing the President

Motion of no confidence – S102

- S102(2) – Motion of no confidence in President, simple majority – Can be political reasons

Powers of the President

POD: S83 of the Constitution
a) Is the Head of the State and Head of the National Executive
b) Must uphold, defend and respect the Constitution as the supreme law of the Republic and
c) Promotes the unity of the nation and that which will advance the Republic
 PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v PUBLIC PROTECTOR (GP) 2018

- HC = PP’s remedial powers include authority to instruct and determine in which manner
President should perform obligations as HoS
Appoint judge selected by CJ as head of commission
- PP appointed Chief Justice to make appointment, and not President because of state capture
(Pres might have had conflict of interests) (preoccupied)
- President cannot abdicate powers bestowed by Constitution

CORRUPTION WATCH (RF) NPC V PRESIDENT OF THE RSA; COUNCIL FOR THE
ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION V PRESIDENT OF THE RSA
2018 1 SACR 317 (GP)

- President was required to appoint new National Director of Public Prosecutions

- President conflicted – NDPP would decide whether Pres should be prosecuted for corruption
while potentially facing charges of Corruption
- Deputy President to act as President (S90)

Court held:
- Conflicted person cannot act
- S90 determines who has to act (Dep Pres)
- Dep Pres is already sworn in and acts when Pres cannot act

Better matches principle that President cannot abdicate power

Limits on the exercise of presidential power

1. Formal restrictions
- S101(1): Executive decision of President must be in writing
- S101(2): A written decision by the President must be countersigned by another cabinet
member if that decision concerns a function assigned to that other cabinet member
- Appointment of public protector, auditor general (chapter 9 institutions) – the president acts in
consultation (“on recommendation of”) the National Assembly.

2.Substantive restrictions
- Review of the exercise of presidential powers by courts
- Decision flows from Constitutional supremacy, rule of law, legality =
founding values of Constitution
- Take away from judgements below: even though president has powers as head of state and
executive; they are not unlimited and subject to constraints. All acts by the president is subject
to the constitution, its values and the rule of law.

President of RSA V HUGO

- Decision of president to reprieve offenders may violate the equality clause and is reviewable on
that basis
- In 1994 – decided based on the Interim Constitution
- President signed legislation whereby certain remissions of sentences were granted to specific
categories of prisoners
- Hugo case – mothers who were in prison on 10 May 1994, specifically with minor children
under the age of 12, would have their sentences reprieved by this legislation
- Power of the president specifically provided for by the Constitution – challenged in court
- Father of a minor child then challenged this decision
Respondent was a prisoner, serving a 15 and a half year sentence, married before
incarceration and child was born, but wife passed away. Minor was below 12.
- Respondent alleged that he was being discriminated against
- Held that Decision of president to reprieve offenders may violate the equality clause and is
reviewable on that basis
- Court made it clear that, in the instance that the president makes the decision to pardon or
reprieve a individual prisoner – it may be difficult to launch a constitutional attack
Thus distinguish between individual pardon vs group of people
- Court held: no prisoner has right to be pardoned or sentence reprieved – it is a discretionary
power by the president
- But, also does not mean that person can abuse this power and just continually grant pardons
- President has to act in good faith

ALBUTT CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION (CC) 2010

- Review president’s decision to reprieve offenders on the basis of rationality

DA V PRESIDENT OF RSA (CC) 2013

- Rationality of decision to appoint a National Director of Public Prosecutions (Simelane)

- Court found that the purpose of appointing a NDPP, was here specifically closely linked to the
fact that the president must appoint a person of integrity, and that dishonesty is incompatible
with this role.
- President ignored adverse findings which questioned the honesty of the appointee which were
made by another body
- Ignoring these findings are irrational
- There has to be a rational link between the decision and the outcome

4. SEPARATION OF POWERS AND THE JUDICIARY

 Prescribed material
- Chapter 6 of the prescribed textbook (only sections 6.1-6.4)
- Chapter 8 of the Constitution, 1996
- Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA), particularly the
issues in para 10(c), 10(d), and 10(e)
- Justice Alliance of South Africa v President of the Republic of South Africa; Freedom under
Law v President of the Republic of South Africa; Centre for Applied Legal Studies v President
of the Republic of South Africa 2011 (5) SA 388 (CC) especially paras 41-59
- Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580
(CC) [EFF 1] paras 15-47
- Economic Freedom Fighters v Speaker of the National Assembly 2018 2 SA 571 (CC) [EFF
2] [see demarcation above]
- United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21 (22 June
2017) paras 57-88
- Mwelase v Director-General for the Department of Rural Development and Land Reform
2019 11 BCLR 1358 (CC), especially paras 37, 46-53 (Cameron); 99-108 (Jaftha)
- Minister of Health v Treatment Action Campaign 2002 10 BCLR 1033 (CC) paras 96-114

Court Structure

Introduction
DA V PRESIDENT OF RSA (CC) 2013
Chapter 8 of Constitution
- POD: S165(1): ”The judicial authority of the Republic is vested in the courts”
- Purpose: Authority (power) to settle disputes - Not just relating to private parties, but also
between private parties and the state or organs of state
Impartiality and Independence
Independence of the Superior Courts
 5. SEPARATION OF POWERS AND CHAPTER 9 INSTITUTIONS

Prescribed material
- Chapter 7 of the prescribed textbook
- Chapter 9 of the Constitution, 1996
- Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580
(CC) [EFF 1]
South African Human Right Commission v Agro Data CC (1448/2021) [2022] ZAMPMBHC
58 (2 March 2022)
- Public Protector Act 23 of 1994
- Slade BV ‘Clarifying the power of the South African Human Rights Commission to take steps
to redress the violation of human rights: A discussion of South African Human
- Rights Commission v Agro Data CC [2022] ZAMPMBHC 58] 2023 Obiter 459-470
REFER TO THE TUTS
6. MULTI-SPHERE GOVERNMENT