Constitutional Law 271:
Part 1A: Constitutional History and Basic Principles:
Constitutional History:
I. Setting the scene: Constitutional Supremacy and the role players in a constitutional
democracy
Separation of Powers: (SOP)
- The separation of public institutions & the three branches of government
Doctors for Life International v Speaker of NA:
- SOP not expressly stated but is provided for in CT with the layout of the
structure of provisions that entrusts the separation of powers between the
branches and reflects the concept of SOP
o Ngcobo J
- Supremacy of CT requires that obligations imposed by it be fulfilled, courts
are required to ensure all branches of government act within the law and fulfil
their constitutional obligations
- CC: responsibility of being the ultimate guardian of the CT and its values
- S167(4)(e) Constitution (“CT”): entrusts CC with power to ensure that
Parliament fulfils its constitutional obligations
o Gives meaning to supremacy clause which requires obligations
imposed by CT be fulfilled
First Certification Judgement:
- SOP, read in in this judgement, not mentioned expressly in CT
- SOP recognises the functional independence of branches of government
- Principle of checks and balances focuses the desirability of ensuring that the
constitutional order prevents branches of government from usurping power
from one another
- It anticipates the necessary and unavoidable intrusion of one branch on
terrain of another
- There is no constitutional scheme that can reflect a complete SOP, it will
always be partial
SOP is not complete:
- JvE+L
o Judiciary required to check the other branches and whether they
comply with the law and exercise authority in accordance with the CT
o No intrusion can be allowed where it will undermine the independence /
impartiality of the judiciary
,Branches of Government:
- Legislative
- Executive
- Judiciary
Legislature:
- Chapter 4 CT
- Highest law-making authority
- National Parliament that consists
of:
National Assembly [“NA”] = legislative branch
o First house of parliament
o Who elects members:
S46 CT voters through proportional representation
o NA Elects President (S86(1) CT) & must hold President accountable
o Chaired by Speaker who is the representative and spokesperson of the
NA
May be removed by a resolution of the NA
o Can legislate over objections of the NCOP (under certain conditions)
o S57(1) CT: gives NA power to determine its internal arrangements and
procedures
National Council of Provinces (“NCOP”):
o Second House of Parliament
o Primary function = legislative
Provides national forum for consideration of issues affecting
provinces (distinguishes NCOP from NA)
o Consists of nine provincial delegations:
10 members each
Selected by provincial legislatures on basis of party-political
proportional representation
o NCOP exercises a veto over certain constitutional amendments
,Executive:
- Chapter 5 CT
- Performs executive functions
- Cabinet that consists of:
President:
o S83 CT: Head of State
o S85(2) CT: head of executive branch:
Exercises authority and must act with other members of Cabinet
o S86 CT: Elected by NA
o S84(2) CT: Head of State acts alone (provides responsibilities of
President)
Ministers: political heads of different government portfolios
Cabinet:
o Policy Making
o Parliament’s Legislative agenda
o Implementation of laws and policies
o S82(2) CT: Executive authority is exercised through:
Implementing national legislation (except where the CT or an
Act of Parliament provides otherwise)
Development and implementation of National Policy
Co-ordination of functions of State departments and
administrators
Preparation and initiation of legislation
Performance of any other executive function provided for in the
CT or in National Legislation
o S92 CT: Accountability and responsibility:
Deputy President & Ministers for the powers and functions of
the executive assigned to them by the President
Members of the Cabinet collectively & individually for the
exercise of their powers and the performance of their functions
Members of the Cabinet must:
Act in accordance with the CT
Provide Parliament with full and regular reports
concerning matters under their control
, Judiciary = courts (especially CC)
- Chapter 8 CT
- Judicial overview of government conduct
- S165 CT: judicial authority vests in the courts
o Courts must be independent and are subject only to the law and the
CT, which they must apply without fear, favour and prejudice
o (5): Invalidate conduct or law that is inconsistent with the CT
- Appointment of Judges JSC
o Appointment by government and not a democratic process whereby
citizens vote
Public Protector:
- Chapter 9 of the CT
- Instituted to strengthen constitutional democracy
- S182 CT: Functions of PP:
o S182(1)(a): PP can investigate any conduct in state affairs in any
sphere of government and take appropriate remedial action that is
mandated by the CT and provides PP with this power
Part 1A: Constitutional History and Basic Principles:
Constitutional History:
I. Setting the scene: Constitutional Supremacy and the role players in a constitutional
democracy
Separation of Powers: (SOP)
- The separation of public institutions & the three branches of government
Doctors for Life International v Speaker of NA:
- SOP not expressly stated but is provided for in CT with the layout of the
structure of provisions that entrusts the separation of powers between the
branches and reflects the concept of SOP
o Ngcobo J
- Supremacy of CT requires that obligations imposed by it be fulfilled, courts
are required to ensure all branches of government act within the law and fulfil
their constitutional obligations
- CC: responsibility of being the ultimate guardian of the CT and its values
- S167(4)(e) Constitution (“CT”): entrusts CC with power to ensure that
Parliament fulfils its constitutional obligations
o Gives meaning to supremacy clause which requires obligations
imposed by CT be fulfilled
First Certification Judgement:
- SOP, read in in this judgement, not mentioned expressly in CT
- SOP recognises the functional independence of branches of government
- Principle of checks and balances focuses the desirability of ensuring that the
constitutional order prevents branches of government from usurping power
from one another
- It anticipates the necessary and unavoidable intrusion of one branch on
terrain of another
- There is no constitutional scheme that can reflect a complete SOP, it will
always be partial
SOP is not complete:
- JvE+L
o Judiciary required to check the other branches and whether they
comply with the law and exercise authority in accordance with the CT
o No intrusion can be allowed where it will undermine the independence /
impartiality of the judiciary
,Branches of Government:
- Legislative
- Executive
- Judiciary
Legislature:
- Chapter 4 CT
- Highest law-making authority
- National Parliament that consists
of:
National Assembly [“NA”] = legislative branch
o First house of parliament
o Who elects members:
S46 CT voters through proportional representation
o NA Elects President (S86(1) CT) & must hold President accountable
o Chaired by Speaker who is the representative and spokesperson of the
NA
May be removed by a resolution of the NA
o Can legislate over objections of the NCOP (under certain conditions)
o S57(1) CT: gives NA power to determine its internal arrangements and
procedures
National Council of Provinces (“NCOP”):
o Second House of Parliament
o Primary function = legislative
Provides national forum for consideration of issues affecting
provinces (distinguishes NCOP from NA)
o Consists of nine provincial delegations:
10 members each
Selected by provincial legislatures on basis of party-political
proportional representation
o NCOP exercises a veto over certain constitutional amendments
,Executive:
- Chapter 5 CT
- Performs executive functions
- Cabinet that consists of:
President:
o S83 CT: Head of State
o S85(2) CT: head of executive branch:
Exercises authority and must act with other members of Cabinet
o S86 CT: Elected by NA
o S84(2) CT: Head of State acts alone (provides responsibilities of
President)
Ministers: political heads of different government portfolios
Cabinet:
o Policy Making
o Parliament’s Legislative agenda
o Implementation of laws and policies
o S82(2) CT: Executive authority is exercised through:
Implementing national legislation (except where the CT or an
Act of Parliament provides otherwise)
Development and implementation of National Policy
Co-ordination of functions of State departments and
administrators
Preparation and initiation of legislation
Performance of any other executive function provided for in the
CT or in National Legislation
o S92 CT: Accountability and responsibility:
Deputy President & Ministers for the powers and functions of
the executive assigned to them by the President
Members of the Cabinet collectively & individually for the
exercise of their powers and the performance of their functions
Members of the Cabinet must:
Act in accordance with the CT
Provide Parliament with full and regular reports
concerning matters under their control
, Judiciary = courts (especially CC)
- Chapter 8 CT
- Judicial overview of government conduct
- S165 CT: judicial authority vests in the courts
o Courts must be independent and are subject only to the law and the
CT, which they must apply without fear, favour and prejudice
o (5): Invalidate conduct or law that is inconsistent with the CT
- Appointment of Judges JSC
o Appointment by government and not a democratic process whereby
citizens vote
Public Protector:
- Chapter 9 of the CT
- Instituted to strengthen constitutional democracy
- S182 CT: Functions of PP:
o S182(1)(a): PP can investigate any conduct in state affairs in any
sphere of government and take appropriate remedial action that is
mandated by the CT and provides PP with this power
