Ex parte Chairperson of the CA: In Re certification of the Constitution of RSA:
History
SA past was described as a deeply divided society characterized by strife, suffering,
injustice, all which generated gross violations of human rights. From the outset the
country maintained a colonial heritage of racial discrimination – in most of the country
the franchise (right to vote) was reserved for white males.
At the same time the separation of powers principle didn’t flourish in SA – who followed
the Westminster system and promoted parliamentary sovereignty and domination by the
executive.
Race was the basic inescapable criterion for participation by a person in all aspects of
political, economic and social life.
As the apartheid system gathered momentum during the 1950’s and came to be
enforced there was resistance from the disenfranchised. Many of them demanded non-
discriminatory and wholly represented government in a non-racial state whose beliefs
entirely opposed apartheid.
The clash of these ideas resulted in strife and conflict, as it intensified the SA
government became more repressive.
The in the course of a few years, the country’s political leaders managed to avoid a
social revolution by negotiating a peaceful transition from the controlled minority regime
to a wholly democratic constitutional dispensation.
After a long history of deep conflict between the minority which reserved for itself all
control over political instruments of the state and the majority who sought to resist that
domination – the majority of South Africans realized that the country had to be rescued
from disaster by a negotiated commitment to a new constitutional order based on an
open and democratic society.
,DE LANGE v SMUTS AND OTHERS
FACTS:
The court looked at constitutional validity of the Insolvency Act, which states that a
person required to appear before a meeting of creditors, if they fail to:
- Be sworn by the presiding officer
- Fail to produce any book or document which was required
- Refuse to answer a question lawfully asked
The presiding officer may commit that person to prison.
Lange said that this section violates his constitutional right not to be detained without
trial.
Held:
Subsection is unconstitutional only to the extent that it authorizes a presiding officer who
is not a magistrate to issue a warrant committing an examinee at a creditors’ meeting to
prison = the right to freedom and security of the person.
The power to commit recalcitrant witnesses at insolvency hearings served an important
public objective, namely, to ensure that insolvents and other persons who are in a
position to give important information relating to insolvency do not evade supplying it.
BUT magistrates who commit uncooperative witnesses in aid of an insolvency inquiry do
so in a judicial and not an administrative capacity. So committal by a magistrate
presiding at creditors’ meeting is constitutionally permissible. Sachs looked at the
constitutionality of the subsection within the context of separation of powers = only
judicial officers should have the power to punish misconduct or penalize recalcitrance by
means of imprisonment = the subsection contravenes the principle of separation of
powers.
, Executive council of Western Cape v Minister and another, executive council of
Kwazulu Natal v President of RSA and others.
These cases raise NB questions relating to the authority to establish municipalities and
their internal structures.
Constitutional challenges = 2 main groups
1. The provision of the structures act encroaches on the powers of the provinces –
this challenge concerned the provinces power to establish municipalities’ i.t.o
S155 of the constitution.
2. The contended the Structure Act encroaches on the constitutional powers of
municipalities = related to municipal councils powers to elect executive
committees and power to regulate their internal affairs.
Concurrency argument:
The constitution limits the residual power of Parliament. The question is whether on
Chapter 7 of the constitution dealing with local governments, the provinces are correct in
contending that there are certain constraints on parliament’s powers.
Chapter 7 = scheme for the allocation of powers between the National, Provincial and
Local spheres of government.
S164: any matter concerning local government not dealt with in the constitution may be
prescribed by the national legislature or by the provincial legislature within the framework
of the national legislature. = Issues not dealt with = national authority has the powers.
If parliament indeed had full powers in respect of all matters referred to in Chapter 7,
there would be no need for the reference in S164, to any matter not dealt with in the
constitution.
History
SA past was described as a deeply divided society characterized by strife, suffering,
injustice, all which generated gross violations of human rights. From the outset the
country maintained a colonial heritage of racial discrimination – in most of the country
the franchise (right to vote) was reserved for white males.
At the same time the separation of powers principle didn’t flourish in SA – who followed
the Westminster system and promoted parliamentary sovereignty and domination by the
executive.
Race was the basic inescapable criterion for participation by a person in all aspects of
political, economic and social life.
As the apartheid system gathered momentum during the 1950’s and came to be
enforced there was resistance from the disenfranchised. Many of them demanded non-
discriminatory and wholly represented government in a non-racial state whose beliefs
entirely opposed apartheid.
The clash of these ideas resulted in strife and conflict, as it intensified the SA
government became more repressive.
The in the course of a few years, the country’s political leaders managed to avoid a
social revolution by negotiating a peaceful transition from the controlled minority regime
to a wholly democratic constitutional dispensation.
After a long history of deep conflict between the minority which reserved for itself all
control over political instruments of the state and the majority who sought to resist that
domination – the majority of South Africans realized that the country had to be rescued
from disaster by a negotiated commitment to a new constitutional order based on an
open and democratic society.
,DE LANGE v SMUTS AND OTHERS
FACTS:
The court looked at constitutional validity of the Insolvency Act, which states that a
person required to appear before a meeting of creditors, if they fail to:
- Be sworn by the presiding officer
- Fail to produce any book or document which was required
- Refuse to answer a question lawfully asked
The presiding officer may commit that person to prison.
Lange said that this section violates his constitutional right not to be detained without
trial.
Held:
Subsection is unconstitutional only to the extent that it authorizes a presiding officer who
is not a magistrate to issue a warrant committing an examinee at a creditors’ meeting to
prison = the right to freedom and security of the person.
The power to commit recalcitrant witnesses at insolvency hearings served an important
public objective, namely, to ensure that insolvents and other persons who are in a
position to give important information relating to insolvency do not evade supplying it.
BUT magistrates who commit uncooperative witnesses in aid of an insolvency inquiry do
so in a judicial and not an administrative capacity. So committal by a magistrate
presiding at creditors’ meeting is constitutionally permissible. Sachs looked at the
constitutionality of the subsection within the context of separation of powers = only
judicial officers should have the power to punish misconduct or penalize recalcitrance by
means of imprisonment = the subsection contravenes the principle of separation of
powers.
, Executive council of Western Cape v Minister and another, executive council of
Kwazulu Natal v President of RSA and others.
These cases raise NB questions relating to the authority to establish municipalities and
their internal structures.
Constitutional challenges = 2 main groups
1. The provision of the structures act encroaches on the powers of the provinces –
this challenge concerned the provinces power to establish municipalities’ i.t.o
S155 of the constitution.
2. The contended the Structure Act encroaches on the constitutional powers of
municipalities = related to municipal councils powers to elect executive
committees and power to regulate their internal affairs.
Concurrency argument:
The constitution limits the residual power of Parliament. The question is whether on
Chapter 7 of the constitution dealing with local governments, the provinces are correct in
contending that there are certain constraints on parliament’s powers.
Chapter 7 = scheme for the allocation of powers between the National, Provincial and
Local spheres of government.
S164: any matter concerning local government not dealt with in the constitution may be
prescribed by the national legislature or by the provincial legislature within the framework
of the national legislature. = Issues not dealt with = national authority has the powers.
If parliament indeed had full powers in respect of all matters referred to in Chapter 7,
there would be no need for the reference in S164, to any matter not dealt with in the
constitution.
