Constitutional law 271
EFF v Speaker of the National assembly 2016 (CC) [EFF 1]
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 [like President] ignore connotational
obligations at their peril. This is so because constitutionalism, accountability and the
rule of law constitute the sharp and mighty sword that stands ready to chop the ugly
head of impunity off its stiffened neck.” – Mogoeng
o ‘unchecked abuse of State power’ – refers to Apartheid era and how the state
abused their power – used the law to separate people based on race. Enforced
through courts and police state
o Severe limits to judicial review during apartheid
o Values adopted:
o Accountability
o Rule of law
o Supremacy of the Constitution – constitution isn’t set in stone, has been
amendment 17 times. 18th amendment is pending regarding Bill of Rights,
s25
Background
Nkandla – security upgrades of private residence; there were complaints that some of
these upgrades were not security related. Pay back money because state only funds
essentials
Complaints lodged with Public Protector (PP) (Thuli Mandonsela)
PP released report: secure in comfort, she said that Zuma must pay back money and
he must reprimand ministers that were involved and report back to national assembly.
He ONLY reported back to national assembly.
Remedial action taken
National assembly’s response: they said that it is not needed for money to be paid
back = two contradicting opinions
EFF (minority party) approaches Constitutional Court - agreed with Public Prosecutor
Role players in a constitutional democracy
1. National Assembly (NA) – only branch that is democratically elected
o Legislative branch
o Who elects members of NA?
o NA elects President
o NA must hold president accountable
2. State President as head of state
o &President as head of executive branch
3. Courts (esp Constitutional Court)
o Judicial branch
o How are judges appointed? President is elected democratically - President elects
judges
o Relevant role: Invalidate conduct or law in conflict with Constitution
1
, 4. Public protector (PP)
o = Chap 9 institutions = strengthen constitutional democracy
o = Powers in s 182 = can investigate any conduct in state affairs in any sphere of
government, and take appropriate remedial action
Discussion of EFF 1 on facts
Exclusive jurisdiction of CC
Legal nature of remedial action
o Order:
o 3. Remedial action taken by PP against president is binding
o 4. In not complying with PP’s remedial action, President acted in a manner
inconsistent with the Constitution
o 5-8: President must pay back reasonable cost for non-security upgrades
o 10. The NA’s resolution to absolve President inconsistent with the Constitution
Discussion points
Contemporary challenges
Democracy
Accountability
Judicial review
Reading - I Currie & J de Waal The Constitutional and Administrative Law Volume 1 (2001)
40-57 [available on SUNLearn]
Constitutional Crisis of the 1950s and the exclusion of the judicial review
Enabled apartheid state to enforce discriminatory laws
Changes effected by the Interim Constitution of 1993
Political equality – one person = one vote; irrespective of race and gender
Parliamentary monopoly of Power of Westminster system replaced with legislative and
executive powers on national and provincial level
First-past-the-post system replaced with proportional representation [first-pass-the-
post = person that has most votes gets appointed
Parliamentary supremacy replaced with Constitutional supremacy
Constitutionalism pre - 1994
Union Constitution of 1910 – becoming a union; Republic Constitution of 1961 –
becoming Republic; Tri-cameral Constitution of 1983 – addressing pressure
All had underlying base of Parliamentary supremacy
Parliamentary supremacy … no court of law shall be competent to enquire into or
pronounce upon the validity of any law passed by parliament
o = no substantive constraints
o = Parliament has monopoly of power
Sachs v minister of Justice
o ‘Arguments are sometimes advanced which do seem to me to ignore the plain
principle that Parliament may make any encroachment it chooses upon the life,
liberty, or property of any individual subject to its sway and .. it is the function
of the courts of law to enforce its will’
2
, ‘This judicial perspective (in Sachs), justified by reference to the doctrine of
parliamentary supremacy gave the apartheid legislature free reign in its attack on the
basic principles of equality and human dignity’
Currie and De Waal (2001) 50-51
Firmly establishing Parliamentary supremacy
Constitutional Crisis of the 1950s
Harris v Minister of the Interior 1952 (Harris I)– removal of coloured voters from
common voters roll - cape coloureds could vote on common voters role. Proper
procedure was not followed; therefore removal was invalidated
Minister of the Interior v Harris 1952 (Harris II)
Collins v Minister of the Interior 1957 –
o “the dismissal of the appeal in Collins marked an end to the constitutional crisis
of the 1950s and a definite victory of parliamentary supremacy over the
Constitution” – Currie and de Waal 2001 50
= exclusion of (substantive) judicial review
Parliamentary supremacy – no court of law shall be competent to enquire into of
pronounce upon the substantive validity of any law passed by parliament
Vs
Constitutional supremacy – this enquiry must crucially rest on the constitution of
the republic of south Africa 1996. It is supreme – not parliament. It is the ultimate
source of all lawful authority in the country. No parliament, however bona fide or
eminent its membership, no president, however formidable be his reputation or
scholarship and no official. However efficient or well meaning can make any law or
perform any act which is not sanctioned by the Constitution. Section 2 of the
Constitution expressly provides that law or conduct inconsistent with the Constitution is
invalid and the obligations imposed by it must be fulfilled.’ Speaker of the National
Assembly v De Lille 1998 (SCA) para 14
The doctrine of parliamentary supremacy coupled with the exclusion of judicial review
gave the apartheid legislature free reign in its attack on the basic principles of equality
and human dignity
On the verge of revolution?
ANC (1912); SACP; SAIC; UDF; Black Consciousness movement; AZAPO; PAC; trade
unions (COSATU)
Resisting apartheid
1952 Defiance Campaign
Freedom Charter (1955)
Sharpeville Massacre 1960
Rivonia Trial 1963-1964
1976: Soweto uprising
1976 onwards: Resistance against apartheid system grew stronger; repression of
political dissent on the part of NP led government intensified
In 1980s: on the brink of a revolution; ‘heading for a disaster’
But then; ‘peaceful’ (two-stage) transition /
3
, Negotiated constitutional revolution & certification of ’96 constitution part 1
Introduction:
Chapter 16 Interim Constitution 1993
= This Constitution provides a historic bridge between the past of a deeply divided
society characterized by strife, conflict, untold suffering and injustice …
= The adoption of this Constitution lays the secure foundation for the people of South
Africa to transcend the divisions and strife of the past, which generated gross violations
of human rights, the transgression of humanitarian principles in violent conflicts and a
legacy of hatred, fear, guilt and revenge.
On the verge of revolution? Due to resistance of apartheid
Run-up to Two stage transition
CODESA (Congress for a Democratic South Africa) [ANC & NP]
o Late 1991
o Tasked with drafting Interim Constitution
o Declaration of Intent 21 December 1991
ANC walked out in June 1992
Multi-party negotiating forum (MPNF)
Who had to draft Final Constitution?
ANC? NP? IFP? MPNF?
Issues involved: No one elected to represent the universal adult suffrage, so no
credible body [ANC]
Democratically elected body might not sufficiently address anxieties [NP]… may
subvert objectives of a negotiated settlement
Paradox
Property question came into play. Who can own land and where?
Decision was made to have two step Constitution – to resolve issues of 2 main bodies
= ANC + NP
Therefore: Compromise; two stage transition
Two stage transition as Compromise
Interim constitution:
o = MPNF to draft Interim Constitution before general election
o = power-sharing
o = 34 constitutional principles! And new constitution had to comply to all 34
o = Bill of Rights protecting basic human rights
Final Constitution
o = Negotiated after democratic election by the elected Constitutional Assembly
(CA)
o = After 1999 election, winner can lead country
o = Certified by Constitutional Court for compliance with 34 constitutional
principles; creation of the constitutional court.
o = Extensive bill of rights
4
EFF v Speaker of the National assembly 2016 (CC) [EFF 1]
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 [like President] ignore connotational
obligations at their peril. This is so because constitutionalism, accountability and the
rule of law constitute the sharp and mighty sword that stands ready to chop the ugly
head of impunity off its stiffened neck.” – Mogoeng
o ‘unchecked abuse of State power’ – refers to Apartheid era and how the state
abused their power – used the law to separate people based on race. Enforced
through courts and police state
o Severe limits to judicial review during apartheid
o Values adopted:
o Accountability
o Rule of law
o Supremacy of the Constitution – constitution isn’t set in stone, has been
amendment 17 times. 18th amendment is pending regarding Bill of Rights,
s25
Background
Nkandla – security upgrades of private residence; there were complaints that some of
these upgrades were not security related. Pay back money because state only funds
essentials
Complaints lodged with Public Protector (PP) (Thuli Mandonsela)
PP released report: secure in comfort, she said that Zuma must pay back money and
he must reprimand ministers that were involved and report back to national assembly.
He ONLY reported back to national assembly.
Remedial action taken
National assembly’s response: they said that it is not needed for money to be paid
back = two contradicting opinions
EFF (minority party) approaches Constitutional Court - agreed with Public Prosecutor
Role players in a constitutional democracy
1. National Assembly (NA) – only branch that is democratically elected
o Legislative branch
o Who elects members of NA?
o NA elects President
o NA must hold president accountable
2. State President as head of state
o &President as head of executive branch
3. Courts (esp Constitutional Court)
o Judicial branch
o How are judges appointed? President is elected democratically - President elects
judges
o Relevant role: Invalidate conduct or law in conflict with Constitution
1
, 4. Public protector (PP)
o = Chap 9 institutions = strengthen constitutional democracy
o = Powers in s 182 = can investigate any conduct in state affairs in any sphere of
government, and take appropriate remedial action
Discussion of EFF 1 on facts
Exclusive jurisdiction of CC
Legal nature of remedial action
o Order:
o 3. Remedial action taken by PP against president is binding
o 4. In not complying with PP’s remedial action, President acted in a manner
inconsistent with the Constitution
o 5-8: President must pay back reasonable cost for non-security upgrades
o 10. The NA’s resolution to absolve President inconsistent with the Constitution
Discussion points
Contemporary challenges
Democracy
Accountability
Judicial review
Reading - I Currie & J de Waal The Constitutional and Administrative Law Volume 1 (2001)
40-57 [available on SUNLearn]
Constitutional Crisis of the 1950s and the exclusion of the judicial review
Enabled apartheid state to enforce discriminatory laws
Changes effected by the Interim Constitution of 1993
Political equality – one person = one vote; irrespective of race and gender
Parliamentary monopoly of Power of Westminster system replaced with legislative and
executive powers on national and provincial level
First-past-the-post system replaced with proportional representation [first-pass-the-
post = person that has most votes gets appointed
Parliamentary supremacy replaced with Constitutional supremacy
Constitutionalism pre - 1994
Union Constitution of 1910 – becoming a union; Republic Constitution of 1961 –
becoming Republic; Tri-cameral Constitution of 1983 – addressing pressure
All had underlying base of Parliamentary supremacy
Parliamentary supremacy … no court of law shall be competent to enquire into or
pronounce upon the validity of any law passed by parliament
o = no substantive constraints
o = Parliament has monopoly of power
Sachs v minister of Justice
o ‘Arguments are sometimes advanced which do seem to me to ignore the plain
principle that Parliament may make any encroachment it chooses upon the life,
liberty, or property of any individual subject to its sway and .. it is the function
of the courts of law to enforce its will’
2
, ‘This judicial perspective (in Sachs), justified by reference to the doctrine of
parliamentary supremacy gave the apartheid legislature free reign in its attack on the
basic principles of equality and human dignity’
Currie and De Waal (2001) 50-51
Firmly establishing Parliamentary supremacy
Constitutional Crisis of the 1950s
Harris v Minister of the Interior 1952 (Harris I)– removal of coloured voters from
common voters roll - cape coloureds could vote on common voters role. Proper
procedure was not followed; therefore removal was invalidated
Minister of the Interior v Harris 1952 (Harris II)
Collins v Minister of the Interior 1957 –
o “the dismissal of the appeal in Collins marked an end to the constitutional crisis
of the 1950s and a definite victory of parliamentary supremacy over the
Constitution” – Currie and de Waal 2001 50
= exclusion of (substantive) judicial review
Parliamentary supremacy – no court of law shall be competent to enquire into of
pronounce upon the substantive validity of any law passed by parliament
Vs
Constitutional supremacy – this enquiry must crucially rest on the constitution of
the republic of south Africa 1996. It is supreme – not parliament. It is the ultimate
source of all lawful authority in the country. No parliament, however bona fide or
eminent its membership, no president, however formidable be his reputation or
scholarship and no official. However efficient or well meaning can make any law or
perform any act which is not sanctioned by the Constitution. Section 2 of the
Constitution expressly provides that law or conduct inconsistent with the Constitution is
invalid and the obligations imposed by it must be fulfilled.’ Speaker of the National
Assembly v De Lille 1998 (SCA) para 14
The doctrine of parliamentary supremacy coupled with the exclusion of judicial review
gave the apartheid legislature free reign in its attack on the basic principles of equality
and human dignity
On the verge of revolution?
ANC (1912); SACP; SAIC; UDF; Black Consciousness movement; AZAPO; PAC; trade
unions (COSATU)
Resisting apartheid
1952 Defiance Campaign
Freedom Charter (1955)
Sharpeville Massacre 1960
Rivonia Trial 1963-1964
1976: Soweto uprising
1976 onwards: Resistance against apartheid system grew stronger; repression of
political dissent on the part of NP led government intensified
In 1980s: on the brink of a revolution; ‘heading for a disaster’
But then; ‘peaceful’ (two-stage) transition /
3
, Negotiated constitutional revolution & certification of ’96 constitution part 1
Introduction:
Chapter 16 Interim Constitution 1993
= This Constitution provides a historic bridge between the past of a deeply divided
society characterized by strife, conflict, untold suffering and injustice …
= The adoption of this Constitution lays the secure foundation for the people of South
Africa to transcend the divisions and strife of the past, which generated gross violations
of human rights, the transgression of humanitarian principles in violent conflicts and a
legacy of hatred, fear, guilt and revenge.
On the verge of revolution? Due to resistance of apartheid
Run-up to Two stage transition
CODESA (Congress for a Democratic South Africa) [ANC & NP]
o Late 1991
o Tasked with drafting Interim Constitution
o Declaration of Intent 21 December 1991
ANC walked out in June 1992
Multi-party negotiating forum (MPNF)
Who had to draft Final Constitution?
ANC? NP? IFP? MPNF?
Issues involved: No one elected to represent the universal adult suffrage, so no
credible body [ANC]
Democratically elected body might not sufficiently address anxieties [NP]… may
subvert objectives of a negotiated settlement
Paradox
Property question came into play. Who can own land and where?
Decision was made to have two step Constitution – to resolve issues of 2 main bodies
= ANC + NP
Therefore: Compromise; two stage transition
Two stage transition as Compromise
Interim constitution:
o = MPNF to draft Interim Constitution before general election
o = power-sharing
o = 34 constitutional principles! And new constitution had to comply to all 34
o = Bill of Rights protecting basic human rights
Final Constitution
o = Negotiated after democratic election by the elected Constitutional Assembly
(CA)
o = After 1999 election, winner can lead country
o = Certified by Constitutional Court for compliance with 34 constitutional
principles; creation of the constitutional court.
o = Extensive bill of rights
4
