Constitutional Law: Case
Summaries
First Semester
Table of Contents
Section One: Introduction...................................................................................................3
EFF v Speaker of the NA 2017 (EFF 2: Impeachment Case)............................................................3
United Democratic Movement v Speaker, National Assembly 2017 (Secret Ballot Case)..............9
Section Two: The Legislature............................................................................................11
Democratic Alliance v Speaker of the National Assembly and Others 2016 (the disruption case)
...................................................................................................................................................11
The Helen Suzman Foundation v Speaker of the National Assembly and Others 2020................14
Doctors for Life International v Speaker of the National Assembly and Others 2006..................15
United Democratic Movement v Speaker, National Assembly 2017 (the secret ballot case).......21
Tongoane and Others v Minister for Agriculture and Land Affairs and Others 2010...................23
Justice Alliance of SA v President of the RSA and Others and Two Similar Applications 2011.....25
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others 2016 (EFF 1: Nkandla judgment).........29
Section Three: Multi-level Government............................................................................32
Tongoane v Minister of Agriculture and Land Affairs 2010.........................................................32
Premier: Limpopo Province v Speaker of Limpopo Provincial Government and Others..............34
In re Constitutionality of the Liquor Bill 2000.............................................................................38
Section Four: The National Executive................................................................................42
President of the Republic of South Africa v Hugo ('Hugo') .........................................................43
President of the Republic of South Africa v Office of the Public Protector ('State Capture
Review') .....................................................................................................................................45
Albutt v Centre for the Study of Violence and Reconciliation and Others ..................................48
Democratic Alliance v President of South Africa and Others (‘Simelane Case’)...........................51
Justice Alliance of SA v President of the RSA and Others and Two Similar Applications..............54
Section Five: The Judiciary................................................................................................59
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others (EFF 1: ‘Nkandla Judgment’)...............59
Singh v Minister of Justice and Constitutional Development and Others....................................61
S and Others v van Rooyen and Others.......................................................................................62
, Minister of Health and Others v Treatment Action Campaign and Others..................................63
Justice Alliance of SA v President of the RSA and Others and Two Similar Applications..............64
Helen Suzman Foundation v Judicial Service Commission...........................................................68
Mwelase and Others v Director-General for the Department of Rural Development and Land
Reform and Another...................................................................................................................69
Section Six: Chapter 9 Institutions....................................................................................70
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others (EFF 1: ‘the Nkandla Judgment”)........70
President of the Republic of South Africa v Office of the Public Protector (‘State Capture
Review’).....................................................................................................................................73
Democratic Alliance v Public Protector; Council for the Advancement of the South African
Constitution v Public Protector (‘Estina Judgment’)....................................................................76
,Section One: Introduction
EFF v Speaker of the NA 2017 (EFF 2: Impeachment Case)
Where this fits into this section: This case is about parliamentary mechanisms for holding
the executive accountable and their constitutional obligation to do so. It concern’s Zuma’s
failure to implement the remedial action contained in the Public Protector’s (PP) report
but the case is focused on holding the National Assembly (NA) accountable for not
holding the president accountable
Facts
This matter followed the first Nkandla judgment of this Court and the President’s
failure to implement the PP’s remedial action for some time after the Public
Protector had released her report on the Nkandla project.
The EFF, UDM, COPE and later the DA then approached the CC because they wanted
a number of orders to be made
What happened in between the two cases?
o The motion was deliberated and voted upon, but defeated: the motion did
not establish an ad hoc committee to investigate a s 89 claim.
Such a committee had been successfully implemented before but did
not complete its task before parliament was dissolved in the next
election
o Following the motion, the president was questioned by the NA on the failure
to follow the remedial action
o Following that, a motion of no confidence was made. It was debated and
voted on but defeated
o Another was made the following year by secret ballot, it was voted on and
defeated again
o The applicants now claim that the NA has failed to hold the president
accountable by not removing him and so have brought the claim before the
court .
, In order for the court to have jurisdiction under s 167, Parliament or
the president must have " failed to fulfil a const. obligation"
Relevant Laws
Section 89 of the Constitution
o Outlines the three grounds for impeachment: The president must have a)
committed a serious violation of the constitution or law, b) have committed
serious misconduct or c) be unable to perform the functions of office
Section 102 of the Constitution
o 102 concerns the vote of no confidence.
o Implicit in this section is the idea that both the president and the cabinet
need the confidence of the NA to hold their offices
If one is removed under s89 it requires 2/3 vote majority so being removed by
impeachment is far harder to do - 2/3rds plus meet the criteria whereas no
confidence is simple majority and no need to meet the criteria
Zondo DCJ dissenting judgment (‘first judgment’)
She held that the NA had not failed to put in place mechanisms that could be used to hold
the President accountable for failing to implement the PP’s remedial action
Analysis of applicant’s prayer for relief
The applicants made the following orders (as well as one about procedure but it is not NB):
2) Declaring that the NA has failed to put in measures to hold the second respondent
(the Pres.) accountable
o In order to grant prayer 2 the court needs to say that failing to put such
mechanisms in place is actually failing to meet the obligation of the NA.
3) Declaring the speaker failed to apply her mind/scrutinise the violation of the
constitution by the pres.
Summaries
First Semester
Table of Contents
Section One: Introduction...................................................................................................3
EFF v Speaker of the NA 2017 (EFF 2: Impeachment Case)............................................................3
United Democratic Movement v Speaker, National Assembly 2017 (Secret Ballot Case)..............9
Section Two: The Legislature............................................................................................11
Democratic Alliance v Speaker of the National Assembly and Others 2016 (the disruption case)
...................................................................................................................................................11
The Helen Suzman Foundation v Speaker of the National Assembly and Others 2020................14
Doctors for Life International v Speaker of the National Assembly and Others 2006..................15
United Democratic Movement v Speaker, National Assembly 2017 (the secret ballot case).......21
Tongoane and Others v Minister for Agriculture and Land Affairs and Others 2010...................23
Justice Alliance of SA v President of the RSA and Others and Two Similar Applications 2011.....25
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others 2016 (EFF 1: Nkandla judgment).........29
Section Three: Multi-level Government............................................................................32
Tongoane v Minister of Agriculture and Land Affairs 2010.........................................................32
Premier: Limpopo Province v Speaker of Limpopo Provincial Government and Others..............34
In re Constitutionality of the Liquor Bill 2000.............................................................................38
Section Four: The National Executive................................................................................42
President of the Republic of South Africa v Hugo ('Hugo') .........................................................43
President of the Republic of South Africa v Office of the Public Protector ('State Capture
Review') .....................................................................................................................................45
Albutt v Centre for the Study of Violence and Reconciliation and Others ..................................48
Democratic Alliance v President of South Africa and Others (‘Simelane Case’)...........................51
Justice Alliance of SA v President of the RSA and Others and Two Similar Applications..............54
Section Five: The Judiciary................................................................................................59
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others (EFF 1: ‘Nkandla Judgment’)...............59
Singh v Minister of Justice and Constitutional Development and Others....................................61
S and Others v van Rooyen and Others.......................................................................................62
, Minister of Health and Others v Treatment Action Campaign and Others..................................63
Justice Alliance of SA v President of the RSA and Others and Two Similar Applications..............64
Helen Suzman Foundation v Judicial Service Commission...........................................................68
Mwelase and Others v Director-General for the Department of Rural Development and Land
Reform and Another...................................................................................................................69
Section Six: Chapter 9 Institutions....................................................................................70
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others (EFF 1: ‘the Nkandla Judgment”)........70
President of the Republic of South Africa v Office of the Public Protector (‘State Capture
Review’).....................................................................................................................................73
Democratic Alliance v Public Protector; Council for the Advancement of the South African
Constitution v Public Protector (‘Estina Judgment’)....................................................................76
,Section One: Introduction
EFF v Speaker of the NA 2017 (EFF 2: Impeachment Case)
Where this fits into this section: This case is about parliamentary mechanisms for holding
the executive accountable and their constitutional obligation to do so. It concern’s Zuma’s
failure to implement the remedial action contained in the Public Protector’s (PP) report
but the case is focused on holding the National Assembly (NA) accountable for not
holding the president accountable
Facts
This matter followed the first Nkandla judgment of this Court and the President’s
failure to implement the PP’s remedial action for some time after the Public
Protector had released her report on the Nkandla project.
The EFF, UDM, COPE and later the DA then approached the CC because they wanted
a number of orders to be made
What happened in between the two cases?
o The motion was deliberated and voted upon, but defeated: the motion did
not establish an ad hoc committee to investigate a s 89 claim.
Such a committee had been successfully implemented before but did
not complete its task before parliament was dissolved in the next
election
o Following the motion, the president was questioned by the NA on the failure
to follow the remedial action
o Following that, a motion of no confidence was made. It was debated and
voted on but defeated
o Another was made the following year by secret ballot, it was voted on and
defeated again
o The applicants now claim that the NA has failed to hold the president
accountable by not removing him and so have brought the claim before the
court .
, In order for the court to have jurisdiction under s 167, Parliament or
the president must have " failed to fulfil a const. obligation"
Relevant Laws
Section 89 of the Constitution
o Outlines the three grounds for impeachment: The president must have a)
committed a serious violation of the constitution or law, b) have committed
serious misconduct or c) be unable to perform the functions of office
Section 102 of the Constitution
o 102 concerns the vote of no confidence.
o Implicit in this section is the idea that both the president and the cabinet
need the confidence of the NA to hold their offices
If one is removed under s89 it requires 2/3 vote majority so being removed by
impeachment is far harder to do - 2/3rds plus meet the criteria whereas no
confidence is simple majority and no need to meet the criteria
Zondo DCJ dissenting judgment (‘first judgment’)
She held that the NA had not failed to put in place mechanisms that could be used to hold
the President accountable for failing to implement the PP’s remedial action
Analysis of applicant’s prayer for relief
The applicants made the following orders (as well as one about procedure but it is not NB):
2) Declaring that the NA has failed to put in measures to hold the second respondent
(the Pres.) accountable
o In order to grant prayer 2 the court needs to say that failing to put such
mechanisms in place is actually failing to meet the obligation of the NA.
3) Declaring the speaker failed to apply her mind/scrutinise the violation of the
constitution by the pres.
