Emma Engelbrecht 21571899
CONSTITUTIONAL LAW 271
Emma Engelbrecht
,Emma Engelbrecht 21571899
EFF v Speaker of the National Assembly; DA v Speaker of the National
Assembly 2016 CC
o Para 1 “one of the crucial elements of our constitutional vision is to make a decisive
break from the unchecked abuse of state power and resources that was virtually
institutionalised during the apartheid era. To achieve this goal we adopted
accountability, the rule of law and the supremacy of the constitution as values of our
constitutional democracy…public office bearers ignore constitutional obligations at their
peril”
o “unchecked abuse of State power” – Accountability, Rule of law, constitutional supremacy.
Severe limits to judicial review during apartheid.
EFF 1:
In this case, tax money was used for non-security upgrades to the president’s private
homestead (Nkandla). Complaints were lodged with the Public Protector in terms of the
relevant legislation and she released a report entitled ‘Secure in Comfort’ where she
determined that certain upgrades were not security related and thus, she put forward the
remedial action that should be taken. This remedial action required the president to repay a
reasonable percentage of the non-security upgrades, reprimand the ministers responsible for
such upgrades and then report to the National Assembly. The president only reported to the
National Assembly but did not do anything else. Further, two ad hoc committees found the
president not to be liable for repayment. Thus, the EFF approached the Constitutional Court
and were later joined by the DA. The Constitutional Court has exclusive jurisdiction over certain
issues, including when there is conflict between the spheres of government as was the case.
The court found that the remedial action was binding, and S 182 of the Constitution placed an
obligation on the president to support the office of the Public Protector. Thus, the National
Assembly did not have the power to investigate the Public Protector’s report and if there was
an issue with the report, then the Constitutional Court would need to have been approached.
,Emma Engelbrecht 21571899
As successful, the court ordered that the remedial action instituted by the Public Protector
was binding, the president’s failure to comply and the National Assembly’s absolution of the
president was inconsistent with the Constitution and thus invalid, and that the president must
pay back reasonable cost for non-security upgrades.
o Role Players (In Constitutional Democracy):
1. National Assembly (NA)
- main function: Create/ Promulgate legislation
\ Legislative Branch
- Elected by entire nation who is eligible to vote (over 18)
- National election; we vote; 400 seats available and allocated proportionately to
votes by nation eg. 60% of votes = 60% of seats = 240 seats
- National Assembly elects President \ more seats = more votes for that party’s
leader
- NA must hold the President accountable
2. State President as head of state
- President is head of execute branch
3. Courts
- Judicial Branch
- Judges appointed by President of the republic
- Role: Invalidate conduct or law in conflict with Constitution
PROBLEM: an undemocratically elected body (Judge) has the authority to invalidate
legislation passed by a democratic elected group (NA) à Creates tension between
branches
4. Public Protector (PP)
- Chapter 9 institution
- Role: Strengthen constitutional democracy
- Powers in s 182 Const = can investigate any conduct in state affairs in any sphere
of government, and take appropriate remedial action
- BUT à may not investigate court decisions
o Background to case:
• The president is allowed to secure his premises because if something happens to
the president, order in Parliament etc. will be destroyed.
, Emma Engelbrecht 21571899
\ Nkandla was built with ‘security upgrades’ that were not actually security
upgrades eg. an amphitheatre, visitors centre, pool etc.
• Allegations of this and complaints lodged with PP by a member of Parliament
• Thuli Madonsela (PP) wrote a report that these upgrades were not for security
• She proposed a remedial action to be taken against the President that he must:
1. Pay back the money
2. Reprimand the ministers that allowed this to happen
3. Report to the NA
• Zuma reported to the NA within 14 days
BUT à did not do 1 or 2
• NA’s response: the president is not liable for paying back the money, PP report
thrown out
• How could this happen? Majority of NA is made up of people who belong to the
party heading the government.
• So, EFF approached the CC
• SO here is the effect of a non-democratically elected body potentially being
placed in a position to scrap the decision already made by the democratically
elected body
• Exclusive jurisdiction of the CC: No HC, or SCA
• Court also found the NA was not at liberty to investigate PP report à to set it
aside, they should have approached the CC and requested this
• PP report is BINDING ON PRESIDENT… nobody can find otherwise !
• Order:
1. Remedial action taken by PP is binding
2. President acted in a manner inconsistent with the Const and invalid - NB
3. President must pay back costs for non-security upgrades
4. The NA’s resolution to absolve the President is inconsistent with the
Const
• Thus, motion of no confidence taken because President acted against the Const
– secret ballot
The purpose of the Constitution and Constitutional law is to provide a set of guidelines for
effective and harmonious governance. Thus, it sets up the institutions which govern, the
standard to which all laws must comply and the guidelines for actions that can be taken.
It defines the architecture of society. A democracy is a society that is premised on the
involvement of the citizen, whether it be fulfilling the positions of power, or determining
who holds such positions. De Vos states that “a Constitution is often said to be the finding
document of a nation as the authority of the state is derived from it.”
CONSTITUTIONAL LAW 271
Emma Engelbrecht
,Emma Engelbrecht 21571899
EFF v Speaker of the National Assembly; DA v Speaker of the National
Assembly 2016 CC
o Para 1 “one of the crucial elements of our constitutional vision is to make a decisive
break from the unchecked abuse of state power and resources that was virtually
institutionalised during the apartheid era. To achieve this goal we adopted
accountability, the rule of law and the supremacy of the constitution as values of our
constitutional democracy…public office bearers ignore constitutional obligations at their
peril”
o “unchecked abuse of State power” – Accountability, Rule of law, constitutional supremacy.
Severe limits to judicial review during apartheid.
EFF 1:
In this case, tax money was used for non-security upgrades to the president’s private
homestead (Nkandla). Complaints were lodged with the Public Protector in terms of the
relevant legislation and she released a report entitled ‘Secure in Comfort’ where she
determined that certain upgrades were not security related and thus, she put forward the
remedial action that should be taken. This remedial action required the president to repay a
reasonable percentage of the non-security upgrades, reprimand the ministers responsible for
such upgrades and then report to the National Assembly. The president only reported to the
National Assembly but did not do anything else. Further, two ad hoc committees found the
president not to be liable for repayment. Thus, the EFF approached the Constitutional Court
and were later joined by the DA. The Constitutional Court has exclusive jurisdiction over certain
issues, including when there is conflict between the spheres of government as was the case.
The court found that the remedial action was binding, and S 182 of the Constitution placed an
obligation on the president to support the office of the Public Protector. Thus, the National
Assembly did not have the power to investigate the Public Protector’s report and if there was
an issue with the report, then the Constitutional Court would need to have been approached.
,Emma Engelbrecht 21571899
As successful, the court ordered that the remedial action instituted by the Public Protector
was binding, the president’s failure to comply and the National Assembly’s absolution of the
president was inconsistent with the Constitution and thus invalid, and that the president must
pay back reasonable cost for non-security upgrades.
o Role Players (In Constitutional Democracy):
1. National Assembly (NA)
- main function: Create/ Promulgate legislation
\ Legislative Branch
- Elected by entire nation who is eligible to vote (over 18)
- National election; we vote; 400 seats available and allocated proportionately to
votes by nation eg. 60% of votes = 60% of seats = 240 seats
- National Assembly elects President \ more seats = more votes for that party’s
leader
- NA must hold the President accountable
2. State President as head of state
- President is head of execute branch
3. Courts
- Judicial Branch
- Judges appointed by President of the republic
- Role: Invalidate conduct or law in conflict with Constitution
PROBLEM: an undemocratically elected body (Judge) has the authority to invalidate
legislation passed by a democratic elected group (NA) à Creates tension between
branches
4. Public Protector (PP)
- Chapter 9 institution
- Role: Strengthen constitutional democracy
- Powers in s 182 Const = can investigate any conduct in state affairs in any sphere
of government, and take appropriate remedial action
- BUT à may not investigate court decisions
o Background to case:
• The president is allowed to secure his premises because if something happens to
the president, order in Parliament etc. will be destroyed.
, Emma Engelbrecht 21571899
\ Nkandla was built with ‘security upgrades’ that were not actually security
upgrades eg. an amphitheatre, visitors centre, pool etc.
• Allegations of this and complaints lodged with PP by a member of Parliament
• Thuli Madonsela (PP) wrote a report that these upgrades were not for security
• She proposed a remedial action to be taken against the President that he must:
1. Pay back the money
2. Reprimand the ministers that allowed this to happen
3. Report to the NA
• Zuma reported to the NA within 14 days
BUT à did not do 1 or 2
• NA’s response: the president is not liable for paying back the money, PP report
thrown out
• How could this happen? Majority of NA is made up of people who belong to the
party heading the government.
• So, EFF approached the CC
• SO here is the effect of a non-democratically elected body potentially being
placed in a position to scrap the decision already made by the democratically
elected body
• Exclusive jurisdiction of the CC: No HC, or SCA
• Court also found the NA was not at liberty to investigate PP report à to set it
aside, they should have approached the CC and requested this
• PP report is BINDING ON PRESIDENT… nobody can find otherwise !
• Order:
1. Remedial action taken by PP is binding
2. President acted in a manner inconsistent with the Const and invalid - NB
3. President must pay back costs for non-security upgrades
4. The NA’s resolution to absolve the President is inconsistent with the
Const
• Thus, motion of no confidence taken because President acted against the Const
– secret ballot
The purpose of the Constitution and Constitutional law is to provide a set of guidelines for
effective and harmonious governance. Thus, it sets up the institutions which govern, the
standard to which all laws must comply and the guidelines for actions that can be taken.
It defines the architecture of society. A democracy is a society that is premised on the
involvement of the citizen, whether it be fulfilling the positions of power, or determining
who holds such positions. De Vos states that “a Constitution is often said to be the finding
document of a nation as the authority of the state is derived from it.”
