Untitled
Untitled
Pierre de Vos
Warren Freedman
PART ONE PRINCIPLES AND STRUCTURES OF
GOVERNMENT
1.1 Introduction
1.2 The historical-legal context: from colonial conquest to
democracy
1.2.1 Pre-Union developments
1.2.2 The Union of South Africa and the bifurcated state
1.3 The transition to democracy
1.3.1 The run-up to the first democratic election
1.3.2 CODESA, the MPNF and the two-stage transition
1.3.3 Drafting and adoption of the final 1996 Constitution
1.4 The South African Constitution of 1996
1.4.1 The transformative nature of the Constitution
1.4.2 Interpretation of the South African Constitution
1.4.3 Context: an inegalitarian society and a one-party
dominant democracy
Summary
1.1 Introduction
A constitution is often said to be the founding document of a nation as the
authority of the state is derived from it. It sets up the structures of
government and authorises as well as regulates the exercise of power by the
elected branches of government and the judiciary (and, in some instances,
private institutions and individuals). It also places limits on the exercise of
that power and sets out the ground rules according to which a country must
be governed. However, democratic constitutions are not mere technical
legal documents that contain detailed provisions prescribing the manner in
which the legislature, the executive, the judiciary and other organs of state
exercise public power and setting limits on the exercise of those powers to
protect citizens. Hence, we cannot profitably study the constitutional law of
a democratic state in the abstract, as if the historical context out of which
the constitution emerged and the current social, economic and political
realities of this state have no bearing on an interpretation and evaluation of
the various provisions of a written constitution.1 Nor can we ignore the
broader global context within which the constitution operates.
Constitutional law can therefore arguably be described as the most
‘political’ branch of the law.
In critically evaluating the manner in which constitutions actually
operate in practice and in judging the successes and failures of various
aspects of a constitutional design, we should start with, but cannot
exclusively rely on, the text of the constitution to gain a comprehensive
picture of how this constitution operates. We also need to consider the
wider context in which that constitutional text finds application.
Constitutions are often said to represent a snapshot of the hopes and dreams
of a nation at the time of its writing or – more cynically – to represent a
snapshot of the relative political power and influence of various political
formations involved in the drafting of that constitution.
However, constitutions are also living documents that judges have to
interpret and apply in an ever-changing political, economic and social
environment. A constitutional text often contains open-ended and relatively
general language. In constitutional democracies, therefore, judges have to
interpret, apply and flesh out the meaning of the constitutional text. The
interpretation and application of the various provisions of a constitution will
not necessarily remain static. Judges will often reinterpret and reapply the
text. These judges are, after all, human beings who do not float above the
world like disembodied ghosts completely untouched by the society in
which they live. Judges are the products of the society in which they live.
They will, despite their best efforts, interpret the often open-ended and
general provisions of a constitution in ways that are not entirely ‘objective’
and may change over time as social, economic and political circumstances
change. Many of the justices of South Africa’s Constitutional Court have
tentatively acknowledged the open-ended nature of the language of the
South African Constitution. They have admitted that there may be a need to
refer to extra-legal values and texts, including the South African political
context and history, to justify their decisions.
COUNTER POINT
COUNTER POINT
After the Union of South Africa was established in 1910, the bifurcated
nature of the South African state led to the adoption of several laws by the
Union Parliament aimed at developing legal mechanisms to entrench further
a classic form of indirect colonial rule. The Black Administration Act of
1927 (BAA)45 was a lynchpin in this system which reaffirmed the rule of
chiefs within so-called ‘reserves’ and that subordinated their rule to the
power of the ‘white’ government and its officials.46 The BAA made the
Governor-General the supreme chief with the authority to create and divide
tribes and appoint any person he chose as chief or headman – even in the
face of popular opposition from a community.47 The BAA to some extent
built on the Glen Grey Act and further subverted the traditional governance
structures based on chiefs selected via kinship. It allowed for the
appointment of traditional leaders from outside the ruling families, creating
scope for a body of government lackeys, who were compliant with
entrenched party political interests, to assume the role of traditional leader.
It has been remarked that the BAA:
was intended to shore up the remains of chieftaincy in a
country-wide policy of indirect rule, which would allow
for segregation in the administration of justice. The
policy was aptly named ‘retribalisation’, giving chiefs the
semblance of power and hoping that this would
safeguard the allegiance and acquiescence of the Reserve
residents.48
The BAA conferred civil jurisdiction on chiefs who could apply the
customary law to their subjects in most private law civil disputes. However,
in practice, Africans had a choice of courts to which they could take their
civil case – the magistrates’ courts or the chiefly authority. The magistrates
obviously wielded much more power than the chiefs in relation to the
central government, but the chiefs were given a niche in the local arm of
administration which ‘they seized with alacrity’.49
As the confidence of the ruling NP government grew in the years after
1948, it stepped up political repression while simultaneously trying to
create a system based on ethnic nationalism within a tribal context. Thus,
the implementation of a system of indirect rule accelerated with the
adoption of the Bantu Authorities Act 50 in 1951 and, by 1959, legislation
which created a system of homelands.51 The system divided South Africa
into several ‘self-governing’ territories where each ethnic group was
accommodated in a separate homeland (the former ‘native reserves’). These
homelands were envisaged as the sole mechanisms through which Africans
would be able to exercise their political aspirations. People classified as
‘coloured’ or ‘Indian’ were not accommodated in this system at all.
Eventually, certain of the homelands were granted ‘independent’ status52
but other homelands never achieved or refused to take up an offer of
‘independence’. Chiefs held half the seats in the legislative assembly of the
homelands ex officio and thus assured the leading parties of support.53
It is important to note that this social engineering had devastating
consequences for the traditional governing structures of indigenous South
Africans. It transformed chiefs by bringing them directly into the service of
the state. It became more and more difficult for chiefs to claim legitimacy,
to win respect from their followers and to implement the provisions of the
Bantu Authorities Act at the same time.54 With the advent of democracy,
the role of traditional leaders, and especially chiefs, has become
controversial given the manner in which the system was manipulated during
the colonial and apartheid eras. This role is perceived to be inherently
undemocratic and patriarchal as it is both hereditary and reserved for
men.55 However, despite concerns surrounding the undemocratic essence
of tribal leadership, it remains an important part of South Africa’s cultural
heritage which, despite allegations of corruption, receives some popular
support.56
By the late 1970s, the apartheid state had come under increasing pressure
both internally and externally as opposition and resistance to apartheid and
white minority rule increased and the struggle for freedom by the black
majority gathered momentum.57 In response, the apartheid government of
Prime Minister PW Botha (who became Prime Minister in 1979) opted for a
process of so-called ‘reform’ to try to reincorporate people classified as
‘Indian’ and ‘coloured’ under the apartheid system into the political system.
This led to the 1983 Constitution58 which extended the franchise to
coloureds and Indians in a tricameral legislature.
This new constitutional system (whose introduction was fiercely resisted
by the majority of South Africans) created three separate Houses of
Parliament: one chamber for whites, one for Indians and one for coloureds.
The jurisdiction for each House was distributed according to whether an
issue dealt with an ‘own’ affair or ‘general’ affair. Own affairs were
vaguely defined and were deemed to be matters ‘which specially or
differentially affect a population group in relation to the maintenance of its
identity, traditions and customs’.59 Each House was given powers to deal
exclusively with these ‘own affairs’. ‘General affairs’ were defined as
matters which were not own affairs.60 The white minority government
retained control of this system through a provision in the Constitution that
stated that the State President took the final decision on whether an issue
dealt with an own affair or a general affair.61
Each House enacted legislation dealing with ‘own affairs’ related to its
race group while all three Houses of Parliament dealt with general affairs.
However, in effect, the tricameral Constitution ensured that the exercise of
power would remain firmly entrenched in the hands of the dominant white
majority party – the National Party. This was done, first, by centralising the
running of the government under the State President who was given
extraordinary powers in both the legislature and executive arena.62
Moreover, all significant decisions within the tricameral legislature – such
as the election of the President – would be automatically resolved by a 4:2:1
ratio of white, coloured and Indian representatives.63 This ensured that
even if the Indian and coloured Houses voted in unison, the will of the
white House would prevail.64
Despite these ‘reforms’, the African majority continued to be excluded
from the constitutional scheme. The apartheid government maintained that
South Africa would eventually be divided into one section over which the
tricameral Parliament would hold sway and the several homelands which
would obtain ‘independence’ and would govern all Africans living within
the original borders of the Union of South Africa. Africans living outside
the homelands were all deemed to ‘belong’ to one of the homelands and had
no political rights in the areas in which they actually lived. These ‘reforms’
backfired spectacularly and resistance to the apartheid government became
ever more fierce. Finally, in 1990, State President FW de Klerk lifted the
restrictions placed on liberation movements such as the African National
Congress (ANC), the South African Communist Party (SACP) and the Pan
Africanist Congress (PAC), and ordered the release of Nelson Mandela and
other liberation leaders from prison. The period of negotiations then
commenced.
Negotiated before the first democratic Negotiated after the first democratic
election by unelected MPNF. election by the elected Constitutional
Assembly.
Contains power-sharing agreement Does not provide for any formal power-
allowing the ANC and the NP to share sharing agreement – after the 1999
power for five years and provides for two election the winner of the election governs
Deputy Presidents – one from the ANC the country on its own.
and one from the NP.
COUNTER POINT
Because the ANC did not obtain a two-thirds majority and because its
negotiators were inclined to seek consensus, it tried hard to gain the
necessary support for the various provisions from its long-standing
opposition in the negotiating process, the NP. An enormous public
participation programme and a programme of political discussions were
also launched to ensure popular participation in the negotiating process
which, it was believed, would lead to popular acceptance of the outcome
reached.89 Despite the Assembly’s commitment to transparency, meeting
away from the watchful eye of the press was probably essential to resolve
some of the most fundamental disagreements between the parties. Technical
legal advisers also played an important role in formulating alternative
options relating to some of the most controversial clauses.90 However, it is
widely accepted that the consensus, which ultimately emerged, favoured the
dominant party – the ANC.91
The interim Constitution contained several mechanisms to break any
deadlocks in the negotiations. A panel of constitutional experts, consisting
of lawyers, was empowered to advise the Assembly to try to resolve
deadlocks. The interim Constitution also provided that if a draft constitution
did not command two-thirds of the vote but did gain the support of the
majority of the members, it could nevertheless become the country’s
constitution if it was supported by 60% of the voters in a referendum.92
However, neither of the major parties was keen to resort to the referendum
option and eventually the Constitutional Assembly voted to pass the new
Constitution with only two no votes and 10 abstentions.93
COUNTER POINT
After the Constitutional Assembly had adopted the final Constitution, the
document was submitted to the Constitutional Court for certification. All
political parties involved in the negotiations, except for the ANC and the
PAC, lodged objections to the text with the Constitutional Court. Because
the document had emerged through negotiations, many of these parties were
not happy with certain clauses in the draft text and challenged these
provisions in the hope that the Constitutional Court would refuse to certify
the text for failing to comply with the 34 Constitutional Principles.
The Constitutional Court saw its task as measuring the text of the final
Constitution against the Constitutional Principles to determine whether the
text complied with those principles. The Court held that the Constitutional
Principles had to be ‘applied purposively and teleologically to give
expression to the commitment “to create a new order” based on “a
sovereign and democratic constitutional state” in which “all citizens” are
“able to enjoy and exercise their fundamental rights and freedoms” ’.95 The
Principles therefore had to be interpreted holistically and in a manner that
was not too technically rigid.96 The Constitutional Court evaluated the text
of the final Constitution in two distinct ways. First, it asked whether the
basic structures and premises of the final constitutional text were in
accordance with those contemplated by the Constitutional Principles.
If such basic structures and premises do not comply with
what the [Constitutional Principles] contemplate in
respect of a new constitution, certification by this Court
would have to be withheld. If the basic structures and
premises of the [final Constitution] do indeed comply
with the [Constitutional Principles] then, and then only,
does the second question arise. Do the details of the [final
Constitution] comply with all the [Constitutional
Principles]? If the answer to the second question is in the
negative, certification by the Constitutional Court must
fail because the [final Constitution] cannot properly be
said to comply with the [Constitutional Principles].97
COUNTER POINT
Azanian People’s
0 0038 245 00,22 −0,03 001
Organisation (AZAPO)
It is therefore clear that since 1994, one party, the ANC, has enjoyed
electoral dominance and continues to win free and fair elections with all
other parties lagging far behind. Such a system in which one political party
continuously wins overwhelming electoral victories in free and fair
elections is often referred to as a dominant party democracy.131
Although this description is disputed as far as South Africa is concerned, it
is important to note that the electoral dominance of one political party has
the potential to influence the manner in which various constitutional
structures in a democracy operate.
Advocates of the dominant party thesis have described a number of
consequences flowing from the continued electoral dominance of one
political party. They argue that the dominant status of one political party in
a democracy has the tendency to erode the checks on the power of the
executive created by a democratic but supreme Constitution. Legislative
oversight over the executive in Parliament may be stymied and opposition
parties may be marginalised where one political party dominates the
legislature. There is also a danger that a dominant party may ‘capture’
various independent institutions – including the judiciary and other bodies
such as the prosecuting authority, the police service and other corruption-
busting bodies – by deploying its members to these institutions to remove
effective checks on the exercise of power by the government. In a one-party
dominant democracy, so they argue, the formal mechanisms through which
power is exercised become hollowed out while the separation between the
political party and the state breaks down. This essentially shifts the centre
where real decisions are made from the formal constitutional structures –
the Presidency and the Cabinet on the one hand and the legislature on the
other – to the decision-making body of the governing party.
In such a system, they argue, the leadership of the dominant party makes
all important decisions which are then merely formally endorsed by the
constitutional structures. This process is characterised by a blurring of the
boundary between party and state. This has the effect of reducing the likely
formation of independent groups from within civil society that are
autonomous from the ruling party. It is also characterised by a growing
preponderance of political power, leading to abuse of office and arbitrary
decision making. This undermines the integrity of democratic institutions,
particularly that of the legislature and its ability to check the executive. If
this is true, it will influence the manner in which the legislature, the
executive, the judiciary and other constitutional institutions operate as the
dominant party will have a disproportionate influence on these institutions,
thus posing difficulties for their effective operation.
Whether the electoral dominance of the ANC has turned South Africa
into a one-party dominant democracy is a hotly contested issue. Critics of
this thesis argue that there are external checks that operate outside the
constitutional system on the ANC which serve as functional substitutes for
the internal check provided by the formal institutions of parliamentary
democracy that the ANC’s dominance has eroded. Because of the fact that
the ANC is a ‘broad church’, so the argument goes, and because there is a
high degree of internal democracy in the ANC, this provides not merely
opportunities for debate, but for the reversal of official policy.132 The ANC
is also in an alliance with the SACP and the trade union federation
COSATU, both with their own membership and views. These alliance
partners play an important role in keeping the leadership of the ANC in
check and ensuring that the government of the day addresses the needs of
the majority of its citizens.
In the chapters that follow, we will discuss the formal provisions of the
Constitution that set up various institutions and structures and that regulate
the governance of the country. When evaluating these institutions and
structures and when determining how well these structures operate in
practice, it is important to keep in mind arguments about the one-party
dominant nature of the constitutional democracy in South Africa. The view
we take about this issue will influence the judgment we make about how
effective and successful the structures set up by the Constitution function in
reality and interact with one another as required by the Constitution. Those
who believe that South Africa is indeed a one-party dominant democracy
will have a more negative assessment of the way in which the Constitution
succeeds in establishing a fully functioning multiparty democracy in which
the will of the people guides the governance of the country. They will argue
that the legislature does not always hold the executive accountable, will
worry about the ‘capture’ of the judiciary and whether it remains
independent, and will warn against the abuse of power by the executive.
Those who reject the one-party dominant thesis will argue that the
constitutional structures, on the whole, work well, that the executive
remains accountable to the legislature and that the independent judiciary
acts as a bulwark against abuse of power by state officials and elected
representatives of the people.
SUMMARY
1 Not all constitutions can be found in one or more formal written documents. For example, the
British or Westminster Constitution has evolved over a long period of time but has never been
fully codified in any written official form. See De Smith, S and Brazier, R (1994)
Constitutional and Administrative Law 7th ed 6.
2 (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568;
[1996] 2 CHRLD 244 (5 April 1995) para 17.
3 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and the
African National Congress in a dominant party democracy Constitutional Court Review 2:1–
86.
4 See Currie, I and De Waal, J (eds) (2001) The New Constitutional and Administrative Law,
Vol 1 Constitutional Law 40–3.
5 See Kuper, A (1997) Review: The Mfecane Aftermath: Reconstructive Debates in Southern
African History by Carol Hamilton Current Anthropology 38(3):471–3; Woolman, S and
Swanepoel, J ‘Constitutional history’ in Woolman, S and Bishop, M (eds) (2013)
Constitutional Law of South Africa 2nd ed rev service 5 2.6.
6 Currie and De Waal (2001) 42; Dugard, J (1978) Human Rights and the South African Legal
Order 17. See generally Klug, H (2010) The Constitution of South Africa: A Contextual
Analysis 8–11.
7 Currie and De Waal (2001) 42.
8 Dugard (1978) 14–18.
9 Hahlo, HR and Khan, E (1960) The Union of South Africa: The Development of its Laws and
Constitution 72–83. See generally Carpenter, G (1987) Introduction to South African
Constitutional Law 64–72.
10 In Cassim and Solomon v The State (1892) Cape Law Journal 9:58, the High Court of the
Orange Free State reviewed a law which prohibited ‘Asians’ from settling in the state without
permission of the President on the ground that it violated the guarantee of equality before the
law. However, the Court upheld the law, arguing that the constitutional guarantee had to be
‘read in accordance with the mores of the Voortrekkers’. See Dugard (1978) 19.
11 Klug (2010) 11.
12 Dugard (1978) 20.
13 Brown v Leyds NO (1897) 4 Off Rep 17.
14 Dugard (1978) 24.
15 Bennett, TW (2004) Customary Law in South Africa 103.
16 Bennett (2004) 104.
17 Bennett (2004) 104–5.
18 Deflem, M (1999) Warfare, political leadership, and state formation: The case of the Zulu
Kingdom, 1808–1879 Ethnology 38(4):371–91 at 376–7.
19 Deflem (1999) 377–8.
20 Act 25 of 1894.
21 Davenport, TRH (1987) South Africa: A Modern History 3rd ed 181.
22 Hendricks, F and Ntsebeza, L (1999) Chiefs and rural local government in post-apartheid
South Africa African Journal of Political Science 4(1):99–126 at 102.
23 Davenport (1987) 152.
24 Woolman and Swanepoel (2013) 2.14.
25 Klug (2010) 8; Davenport (1987) 112–15; Mamdani, M (1996) Citizen and Subject:
Contemporary Africa and the Legacy of Late Colonialism 67–9.
26 In the Cape Colony, every man over the age of 21 who was a British subject and who owned
property worth at least 25 pounds or who received a salary of at least 50 pounds per year was
granted the vote. Although few black men qualified, there was no formal racial restriction in
the Cape franchise and this was retained after unification. Similar provisions applied to the
Natal Colony. However, black men and women in the other two provinces were not allowed to
vote.
27 Chanock, M (2001) The Making of South African Legal Culture 1902–1936: Fear, Favour and
Prejudice 22.
28 Klug (2010) 9.
29 See, for example, Basson, DA and Viljoen, HP (1988) Suid-Afrikaanse Staatsreg 2de uitg 36–
7.
30 Currie and De Waal (2001) 44–5.
31 S 35 of the Union Constitution.
32 S 137 of the Union Constitution.
33 See Currie and De Waal (2001) 44–5.
34 Native Representative Act 12 of 1936. The Act was challenged in Ndlwana v Hofmeyer NO
and Others 1937 AD 229, but the courts refused to intervene.
35 Act 46 of 1951.
36 1952 (2) SA 428 (A).
37 1957 (1) SA 552 (A).
38 The only judge to dissent, Oliver Schreiner, was later twice overlooked when a new Chief
Justice had to be appointed. See Dugard (1978) 286; Haynie, SL (2003) Judging in Black and
White: Decision Making in the South African Appellate Division, 1950–1990.
39 Act 1 of 1958.
40 Klug (2010) 12.
41 Dugard (1978) 36. Dugard contrasts this extreme notion of parliamentary supremacy to that
which holds sway in the United Kingdom where political traditions, conventions and respect
for the rule of law act as a control on the system of parliamentary supremacy.
42 1934 AD 11.
43 S 1(12) of the Riotous Assemblies and Criminal Law Amendment Act 27 of 1914 as amended
by the Riotous Assemblies Amendment Act 19 of 1930.
44 Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 paras 36–7.
45 Act 38 of 1927.
46 S 12.
47 S 1. See Mqeke, RB (1997) Basic Approaches to Problem Solving in Customary Law: A Study
of Conciliation and Consensus amongst the Cape Nguni 83–4.
48 Hendricks and Ntsebeza (1999) 104. See also Lacey, M (1981) Working for Boroko: The
Origins of a Coercive Labour System in South Africa 94–119.
49 Hendricks and Ntsebeza (1999) 104.
50 Act 68 of 1951.
51 The Promotion of Bantu Self-government Act 46 of 1959.
52 Transkei in 1976, Bophuthatswana in 1976, Venda in 1979 and Ciskei in 1981.
53 Bennett (2004) 111.
54 Hendricks and Ntsebeza (1999) 106.
55 There is one exception, the Balobedu tribe. See further Pieterse, M (1999) Traditional leaders
win battle in undecided war SAJHR 15:179–187; Motshabi, KB and Volks, SG (1991) Towards
democratic chieftaincy: Principles and procedures Acta Juridica 104–15 at 104–5.
56 For a discussion of the controversial nature of chieftaincy, see Bennett (2004) 111–13 and 120–
3; Pillay, N and Prinsloo, C (1995) The changing face of ‘traditional courts’ De Jure 1:383 at
383–4.
57 See Woolman and Swanepoel (2013) 2.21–2.22.
58 Republic of South Africa Constitution Act 110 of 1983.
59 S 14 of the 1983 Constitution. See Basson and Viljoen (1988) 152.
60 S 15 of the 1983 Constitution.
61 S 16 of the 1983 Constitution.
62 Klug (2010) 13. See generally Pottinger, B (1988) The Imperial Presidency: P.W. Botha, the
First 10 Years.
63 For example, the State President was elected by an 88-member electoral college, 50 of whom
were from the white House, 25 from the coloured House and 13 from the Indian House. These
delegates were elected by each House with a simple majority, thus ensuring that the majority
party in the white House would retain overall control over the election of the President.
64 Klug (2010) 13. See also Currie and De Waal (2001) 56–7 and Basson and Viljoen (1988) 50–
1.
65 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 5,
quoting from the postamble to the 1993 Constitution.
66 First Certification para 9.
67 The notion of a Charter was first mooted at the annual Congress of the ANC in August 1953.
Prof ZK Mathews formally suggested convening a Congress of the People (COP) to draw up
the Freedom Charter. The idea was adopted by the allies of the ANC, the South African Indian
Congress, the South African Coloured People’s Organisation and the South African Congress
of Democrats.
68 Woolman and Swanepoel (2013) 2.28.
69 Woolman and Swanepoel (2013) 2.26.
70 Act 37 of 1963.
71 Woolman and Swanepoel (2013) 2.26.
72 Biko, S (1978) I Write What I like 45–53.
73 Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South
Africa and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672
(25 July 1996) para 2.
74 First Certification para 10.
75 Sparks, AH (1994) Tomorrow is Another Country: The Inside Story of South Africa’s
Revolution.
76 By the time the interim Constitution was finalised, the Inkatha Freedom Party (IFP) and its
allies in the Freedom Alliance (consisting of various Bantustan governments and pro-apartheid
white parties) had walked out of the negotiations.
77 See Venter, F (2010) Liberal democracy: The unintended consequence – South African
constitution-writing propelled by the winds of globalisation SAJHR 26(1):45–65 at 53. Venter
notes that this wording was developed by a working group of the Steering Committee
established by the 19 participating parties that committed themselves to CODESA in the course
of November and December 1991. It was partly foreshadowed in chapter 1 of the National
Peace Accord signed on 14 September 1991 by some 40 parties and organisations.
78 Available at http://www.anc.org.za/show.php?id=3968&t=Transition.
79 The MPNF emerged after intense negotiation which led to the Record of Understanding signed
on 26 September 1992 and which is available at http://www.anc.org.za/show.php?id=4206.
80 First Certification para 12.
81 Murray, C (2001) A constitutional beginning: Making South Africa’s final Constitution
University of Arkansas at Little Rock Law Review 23:809–38 at 813.
82 The procedure for the adoption of the final Constitution was laid down in ss 68–73 of the
Constitution of the Republic of South Africa Act 200 of 1993.
83 See also First Certification paras 16–19.
84 First Certification para 45.
85 S 71(3) of the interim Constitution.
86 Botha, H (2010) Instituting public freedom or extinguishing constituent power? Reflections on
South Africa’s constitution-making experiment SAJHR 26(1):66–84 at 69–70.
87 See Elections in post-apartheid South Africa SA History Online available at
http://www.sahistory.org.za/elections-post-apartheid-south-africa.
88 The Democratic Party is the forerunner of the Democratic Alliance, that was formed when the
DP merged with the NP.
89 Murray (2001) 816. The Constitutional Assembly’s slogan, ‘You’ve made your mark now have
your say’, invited the many millions of South Africans who had voted for the first time in 1994
to contribute to the country’s first democratic Constitution – and over two million did so. See
generally Ebrahim, H (1998) The Soul of a Nation: Constitution-making in South Africa.
90 See ss 72–3 of the interim Constitution. A panel of constitutional experts comprising two
practising lawyers and five academic lawyers was to review the final Constitution. The panel
had a month to come up with ‘deadlock-breaking’ ideas.
91 Woolman and Swanepoel (2013) 2.41.
92 See s 73(8) of the interim Constitution.
93 Murray (2001) 832.
94 As quoted in Murray (2001) 821. This particular submission was dated 16 May 1995.
95 First Certification para 34.
96 First Certification paras 36–7.
97 First Certification para 44.
98 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996).
99 See First Certification para 482.
100 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996).
101 S 1.
102 S 2.
103 S 7(2).
104 S 211.
105 S 212 of the Constitution.
106 See Klare, K (1998) Legal culture and transformative constitutionalism SAJHR 14(1):146–88;
Chaskalson, A (2000) The third Bram Fischer lecture: Human dignity as a foundational value
of our constitutional order SAJHR 16(2):193–205 at 199; Pieterse, M (2005) What do we mean
when we talk about transformative constitutionalism? SA Public Law 20:155–66; Langa, P
(2006) Transformative constitutionalism SLR 17(3):351–60; Moseneke, D (2009)
Transformative constitutionalism: Its implications for the law of contract SLR 20(1):3–13 at 4;
Davis, DM and Klare, K (2010) Transformative constitutionalism and the common and
customary law SAJHR 26(3):403–509.
107 Mkontwana v Nelson Mandela Metropolitan Municipality (CCT 57/03) [2004] ZACC 9; 2005
(1) SA 530 (CC); 2005 (2) BCLR 150 (CC) (6 October 2004) para 81; Soobramoney v Minister
of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12)
BCLR 1696 (27 November 1997) para 8; Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000
(10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000) para 21.
108 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA
391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 262.
109 See Davis, D (1999) Democracy and Deliberation: Transformation and the South African
Legal Order 44.
110 See ss 1 and 7 of the Constitution. The Constitution’s historically situated character has been
recognised in several Constitutional Court judgments. See, for example, AZAPO para 50:
‘constitutional journey from the shame of the past to the promise of the future’; para 42:
‘[w]hat the Constitution seeks to do is to facilitate the transition to a new democratic order’.
See also De Vos, P (2001) A bridge too far? History as context in the interpretation of the
South African Constitution SAJHR 17(1):1–33.
111 Klare (1998) 152.
112 See generally Klare (1998) 153–6.
113 See s 7(2) of the Constitution which states that the state has a duty to respect, protect, promote
and fulfil the rights in the Bill of Rights and Minister of Finance and Other v Van Heerden
(CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC); [2004] 12
BLLR 1181 (CC) (29 July 2004) para 24.
114 See ss 26–8 of the Constitution.
115 See s 9(4) of the Constitution.
116 See generally ss 40(2) and 41(1). See also s 32 (access to information); s 33 (right to fair and
just administrative action); and ss 34 and 38 (access to courts) and s 234 (charters of rights).
117 Makwanyane paras 224 and 263.
118 See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
para 135: ‘The Constitution acknowledges the variability of human beings (genetic and socio-
cultural), affirms the right to be different, and celebrates the diversity of the nation.’
119 S 1(a); s 7(1); s 39(1).
120 AZAPO para 43.
121 Makwanyane para 321 per O’Regan J: the language of fundamental rights is ‘broad and
capable of different interpretations’; para 207 per Kriegler J: ‘… it would be foolish to deny
that the judicial process, especially in the field of constitutional adjudication, calls for value
judgments in which extra-legal considerations may loom large’; para 266 per Mahomed DP:
‘The Constitution must be examined with reference, inter alia, to the text, context and the
factual and historical considerations’; para 382 per Sachs J: ‘in seeking the kind of values
which should inform the court’s approach to interpretation the “rational and humane
adjudicatory approach” must be preferred’.
122 See also Makwanyane para 207 per Kriegler J: ‘… methods to be used are essentially legal, not
moral or philosophical … it would be foolish to deny that the judicial process, especially in the
field of constitutional adjudication, calls for value judgments in which extra-legal
considerations may loom large. Nevertheless the starting point, the framework and the outcome
of the exercise must be legal’; para 349 per Sachs J: ‘Our function is to interpret the text of the
Constitution as it stands. Accordingly whatever our personal views on this fraught subject
might be, our response must be a purely legal one’; para 266 per Mahomed DP: ‘… difference
between a political election made by a legislative organ and decisions reached by a judicial
organ, like the Constitutional Court, is crucial’.
123 See Klare (1998) 172–87 for examples of this kind of reasoning by the judges of the
Constitutional Court.
124 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995) para 266.
125 See Zuma para 15: the reference to R v Big M Drug Mart Ltd (1985) 18 DLR (4th) at 321;
President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4;
1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 41; Prinsloo v Van der Linde and
Another (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997)
para 32 quoting from Egan v Canada (1995) 29 CRR (2d) 79 at 104–05. On the use of history,
see, for example, Zuma para 15 per Kentridge J: ‘… regard must be paid to the legal history,
traditions and usages of the country concerned …’; Makwanyane para 39 per Chaskalson P:
‘we are required to construe the South African Constitution … with due regard to our legal
system, our history and circumstances …’; para 264 per Mahomed DP: ‘It is against this
historical background and ethos that the constitutionality of capital punishment must be
determined.’; paras 322–23 per O’Regan J: ‘… the values urged upon the Court are not those
that have informed our past…’ and in ‘…interpreting the rights enshrined in Chapter 3,
therefore, the Court is directed to the future’; Executive Council of the Western Cape
Legislature and Others v President of the Republic of South Africa and Others (CCT27/95)
[1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) para 61 per
Chaskalson: the nature and extent of the power of Parliament to delegate its legislative powers
ultimately depends ‘on the language of the Constitution, construed in the light of the country’s
own history’.
126 For a short review of contextual interpretation by the Constitutional Court, see Currie, I and De
Waal, J (2013) The Bill of Rights Handbook 140–5.
127 See De Vos (2001).
128 Soobramoney paras 8–9.
129 See South Africa: 2009 National Assembly Election Results, Electoral Institute for Sustainable
Democracy in Africa, available at http://www.eisa.org.za/WEP/sou2009results1.htm.
130 The number of seats refers to the number of representatives of each party in the National
Assembly.
131 See Choudhry (2009) 1–85. Whether South Africa can indeed be characterised in this manner
has been the subject of intense debate. See Southall, R (1994) The South African elections of
1994: The remaking of a dominant-party state Journal of Modern African Studies 32(4):629–
55; Giliomee, H (1998) South Africa’s emerging dominant-party regime Journal of Democracy
94:128; Southall, R (1998) The centralization and fragmentation of South Africa’s dominant
party system African Affairs 97(389):443–69; Friedman, S ‘No easy stroll to dominance: Party
dominance, opposition and civil society in South Africa’ in Giliomee, H and Simkins, C (eds)
(1999) The Awkward Embrace: One Party Domination and Democracy 97; Giliomee, H,
Myburgh, J and Schlemmer, L (2001) Dominant party rule, opposition parties and minorities in
South Africa Democratization 8(1):161–82; Southall, R (2001a) Opposition in South Africa:
Issues and problems Democratization 8(1):1–24; Southall, R (2001b) Conclusion: Emergent
perspectives on opposition in South Africa Democratization 8(1):275–84; Alence, R (2004)
South Africa after apartheid: The first decade Journal of Democracy 15(3):78–92 at 78;
Hamill, J (2004) The elephant and the mice: Election 2004 and the future of opposition politics
in South Africa The Round Table: The Commonwealth Journal of International
Affairs 93(377):691–708; Lodge, T (2004) The ANC and the development of party politics in
modern South Africa Journal of Modern African Studies 42(2):189–219; Southall, R (2005)
The ‘dominant party debate’ in South Africa Afrika Spectrum 40(1):61–82; Suttner, R (2006)
Party dominance theory: Of what value? Politikon: SA Journal of Political Studies 33(3):277–
97; Handley, A, Murray, C and Simeon, R ‘Learning to lose, learning to win: Government and
opposition in South Africa’s transition to democracy’ in Friedman, E and Wong, J (eds) (2008)
Political Transitions in Dominant Party Systems: Learning to Lose 191.
132 Lodge (2004) 205–7.
Basic concepts of constitutional
law
2.1 Introduction
2.2 Constitutionalism
2.2.1 Understanding the nature of constitutionalism
2.2.2 Constitutionalism as a descriptive doctrine
2.2.3 Constitutionalism as a prescriptive doctrine
2.2.4 Models of constitutionalism
2.2.4.1 The Westminster constitutional model
2.2.4.2 The United States constitutional model
2.2.4.3 The German constitutional model
2.2.5 Constitutionalism in South Africa: a brief overview
2.2.5.1 The era of the dominance of the Westminster
constitutional model
2.2.5.2 The era of constitutional supremacy
2.2.5.2.1 Constitutional supremacy
2.2.5.2.2 A value-based constitutional system
2.2.5.2.3 Co-operative federalism
2.3 Separation of powers
2.3.1 The purpose and principles of the doctrine of separation
of powers
2.3.2 A brief history of the doctrine of separation of powers
2.3.3 Separation of powers: the South African experience
2.3.3.1 The legislature
2.3.3.2 The executive
2.3.3.3 The judiciary
2.3.4 The counter-majoritarian dilemma
2.4 The rule of law
2.4.1 A brief history of the rule of law
2.4.2 The rule of law under the 1996 Constitution
2.5 Democracy
2.5.1 Conceptions of democracy
2.5.2 Direct democracy
2.5.3 Representative democracy
2.5.4 Participatory democracy
2.5.5 Constitutional democracy
Summary
2.1 Introduction
To obtain a sound command of South Africa’s constitutional law, it is
important that we consider certain fundamental concepts at the outset. This
is necessary to establish some level of common understanding of the
principles, doctrines and concepts that lie at the heart of how our
Constitution operates, the context that gave rise to it as well as the context
in which it operates. These concepts lie at the heart of the South African
Constitution and find expression in many of the provisions of the
Constitution. When studying specific aspects of the Constitution, this needs
to be done against the background of the concepts discussed below.
The principle aim of this chapter is therefore to introduce some of the
more important overarching ideas that are pivotal in both explaining and
contextualising the development of South African constitutional law.
Although we focus on constitutional developments that have taken place in
the period after South Africa’s transition to democracy, we also briefly
consider some important constitutional moments from bygone colonial and
apartheid periods for purposes of context. We will also attempt to locate
these constitutional developments within a broader historical and political
context that recognises the influence of the constitutional law and practices
of other countries.
2.2 Constitutionalism
Figure 2.1 The overlap between the legislature and the executive
indicates that the members of the executive are drawn from
Parliament
Country of origin US UK
COUNTER POINT
The notion of a social state versus a free-market
system
A social state can arguably be said to reflect the same
concerns expressed by adherents to the values of ubuntu
as it focuses on the idea of human solidarity. It represents
a rejection of an overly individualistic worldview and affirms
the importance of community and the fact that all people in
society are demeaned when some people do not have their
basic social and economic needs met. Bauman describes
the social state in the following manner:
A state is ‘social’ when it promotes the principle of communally
endorsed, collective insurance against individual misfortune and
its consequences. It is primarily that principle – declared, set in
operation and trusted to be in working order – that recast the
otherwise abstract idea of ‘society’ into the experience of felt and
lived community through replacing the ‘order of egoism’ (to deploy
John Dunn’s terms), bound to generate an atmosphere of mutual
mistrust and suspicion, with the ‘order of equality,’ inspiring
confidence and solidarity. It is the same principle which lifts
members of society to the status of citizens, that is, makes them
stakeholders in addition to being stockholders: beneficiaries, but
also actors – the wardens as much as the wards of the ‘social
benefits’ system, individuals with an acute interest in the common
good understood as a network of shared institutions that can be
trusted and realistically expected, to guarantee the solidity and
reliability of the state-issued ‘collective insurance policy’.51
COUNTER POINT
COUNTER POINT
Does the legislature in South Africa in fact hold
the executive accountable?
In Certification of the Constitution of the Republic of South
Africa, 1996,106 the Constitutional Court had to deal with
arguments that the South African Constitution, which
provides for members of the executive also to be members
of legislatures, contravened the principle of the separation
of powers. The reason for this was that it did not allow for a
complete separation of personnel between the legislature
and the executive as members of the Cabinet remain
members of the legislature. By virtue of their positions,
Cabinet members are thus able to exercise a powerful
influence over the decisions of the legislature. In rejecting
this criticism the Constitutional Court noted that there is
more than one model of separation of powers and stated
that:
While in the USA, France and the Netherlands members of the
executive may not continue to be members of the legislature, this is
not a requirement of the German system of separation of powers.
Moreover, because of the different systems of checks and balances
that exist in these countries, the relationship between the different
branches of government and the power or influence that one
branch of government has over the other, differs from one country
to another. The principle of separation of powers, on the one hand,
recognises the functional independence of branches of
government. On the other hand, the principle of checks and
balances focuses on the desirability of ensuring that the
constitutional order, as a totality, prevents the branches of
government from usurping power from one another. In this sense it
anticipates the necessary or unavoidable intrusion of one branch
on the terrain of another. No constitutional scheme can reflect a
complete separation of powers: the scheme is always one of partial
separation. In Justice Frankfurter’s words, ‘[t]he areas are partly
interacting, not wholly disjointed’. … As the separation of powers
doctrine is not a fixed or rigid constitutional doctrine, it is given
expression in many different forms and made subject to checks
and balances of many kinds. It can thus not be said that a failure in
the [final Constitution] to separate completely the functionaries of
the executive and legislature is destructive of the doctrine. Indeed,
the overlap provides a singularly important check and balance on
the exercise of executive power. It makes the executive more
directly answerable to the elected legislature.107
COUNTER POINT
The Constitutional Court has had occasion to consider questions about the
power of the executive to interfere with the law-making functions of the
legislature in the important early Constitutional Court judgment of
Executive Council of the Western Cape Legislature and Others v President
of the Republic of South Africa and Others.122 This case involved a
challenge to provisions in an Act of Parliament which delegated powers to
the President, allowing him to amend the Local Government Transition Act
123 by proclamation. The Constitutional Court readily accepted that in a
modern society, the act of governing would require some level of delegation
of law-making power to the executive. Chaskalson P, writing the majority
judgment, wrote as follows:
In a modern state detailed provisions are often required
for the purpose of implementing and regulating laws,
and Parliament cannot be expected to deal with all such
matters itself. There is nothing in the Constitution which
prohibits Parliament from delegating subordinate
regulatory authority to other bodies. The power to do so
is necessary for effective law-making. It is implicit in the
power to make laws for the country and I have no doubt
that under our Constitution parliament can pass
legislation delegating such legislative functions to other
bodies.124
However, in this case, the delegation in question was found to be
unconstitutional. In coming to this decision, the judges of the Court
delivered several judgments, all concurring that the delegation was invalid
but for different reasons. A common thread, though, among the judgments
was the fact that while delegation of legislative power is indeed
permissible, the doctrine of separation of powers demands that there be
limits to the nature or the extent of the power to be delegated by
Parliament to the executive. It was with respect to the determination of the
extent or even the factors to be taken into account that the judges failed to
reach agreement.125 However, in spite of such disagreement, all the judges
concurred on the point that Parliament could not delegate its plenary powers
to make or amend a statute to the executive branch. By attempting to do so,
Parliament had contravened the separation of powers principle inherent in
the structure of the Constitution.
COUNTER POINT
In light of the above, an obvious question that then bears asking is why
include judicial review in South Africa’s constitutional system if it poses so
many difficult conceptual and practical questions. A better question,
though, may be what the justification is for the inclusion of judicial review
in South African constitutionalism taking into account the curtailment of
democracy it necessarily entails. Before putting forward some arguments in
support of the inclusion of judicial review, it is necessary to concede that
due to the nature of judicial review, it can never be fully reconciled with a
purely majoritarian concept of democracy.168 The nature of the
adjudicative function and the powers exercised therein simply do not lend
themselves to being exercised by a plurality of the population in a
democratic society. Therefore, if we accept that the judiciary is to play a
legitimate part in upholding the Constitution, then we must be able to
justify, in a reasoned manner, why important decisions affecting millions
should be left in the hands of a relatively few unelected judges whose
decisions may not necessarily be wiser, more principled or moral that those
of the majority in a democracy. Despite inherent counter-majoritarian
concerns, there are several good arguments or justifications that have been
put forward in support of judicial review. We will discuss a few of these
below:
• While judicial review does tend to diminish democracy from a
majoritarian point of view, democracy, when viewed substantively and
especially in a plural political society, is never simply majority rule.
While the elected representatives of the political majority must exercise
political power in a democratic society, this does not necessarily give the
majority a blank cheque to govern in whatever way it desires. There are
in place mechanisms that regulate and limit the exercise of power in a
way that seeks to secure the welfare of all members of a particular
political community. Those subscribing to this view would argue that
where all people enjoy the same rights in a democracy, all people are
entitled to be treated as equals irrespective of whether they are part of the
majority or not.169 So understood, democracy entails much more than
conferring power on a particular majority on any given day. It also
necessarily entails finding a balance between enabling those in the
majority to govern and limiting the things that they can do while in
power, especially where such power can be used to violate the rights of
others or undermine the very nature of the democracy.
• Another argument in support of judicial review holds that the judiciary is
ideally positioned to decide on disputes and matters of principle. The
reasons for this are the specialised nature of judges’ adjudicative
expertise, the judiciary’s detached institutional positioning relative to the
other democratically elected branches and its entrenched independence.
According to those who hold this view, the courts are institutionally
stronger and better positioned than the other two branches for purposes
of protecting rights and upholding democratic principles as they do not
have to pander to the demands that may be placed on the other branches
by an electorate.170
• Another argument in support of judicial review, related to the preceding
one, is that the courts can be seen as a forum that can actually enhance
democracy, particularly deliberative democracy. Those subscribing to
this view argue that the courts provide an important platform where
citizens may challenge the decisions or actions of their elected
representatives. In effect, citizens can enter into a structured dialogue
with elected representatives through the courts.171
COUNTER POINT
These arguments briefly set out above merely represent some of the views
that have been put forward in an attempt to justify or account for the
inclusion of the institution of judicial review in a democratic system of
government. In and of themselves, they can be challenged and can be found
wanting in as far as completely dispelling accusations that judicial review
does tend to curtail or subtract from majoritarian democracy. However,
judging by the acceptance of judicial review in some democratic societies,
including South Africa, we can conclude that there is some level of
acceptance of the idea that there should be a branch of government that
must be tasked with the role of interpreting and upholding the constitution
and the rights of all citizens. Put differently, there appears to be some
acceptance that for constitutional democracy to flourish, it is sometimes
necessary to employ some outwardly undemocratic means to achieve long-
term democratic ideals such as inclusiveness, broad representativity,
accountability and transparency. It has been suggested that instead of
glossing over judicial review’s democratic deficit, there is a need to think of
constitutions such as South Africa’s as being mixed constitutions. The
mixture in this sense is that such constitutions, although grounded in
democratic principles and practice by necessity, also include an anti-
democratic practice such as the inclusion of judicial review.173
Figure 2.4 The counter-majoritarian dilemma
COUNTER POINT
Having discussed freely and frankly the rule of law with particular
reference to Africa, and
Having reached conclusions regarding human rights in relation to
government security, human rights in relation to aspects of
criminal and administrative law, and the responsibility of the
judiciary and of the Bar for the protection of the rights of the
individual in society,
NOW SOLEMNLY
Declares:
COUNTER POINT
Formal versus substantive conceptions of the
rule of law
Some commentators 197 have argued that the inclusion of
the rule of law as a founding value in the South African
Constitution may be of little effect if the rule of law is
conceptualised in a narrow way as requiring little more
than legality and rationality from law makers and state
officials acting in terms of the law. They point out that if the
rule of law exists when the principle of legality is observed,
then the apartheid government also largely observed this
principle. The fact that law was used as an instrument of
apartheid ideology would then simply show that the
principle of legality or the rule of law is by itself morally
insignificant. What matters is the content of the law – the
nature of the ideology of which the law is the instrument. It
follows, then, that the explicit commitment in the final
Constitution to the supremacy of the Constitution and the
rule of law is in itself empty. What matters is not that
commitment but that the final Constitution guarantees a list
of rights and liberties. In addition, it gives to the judiciary
the authority both to ensure that the exercise of public
power has a legal warrant and that any legal warrant is
consistent with constitutional guarantees.
However, this limited conception of the rule of law is
controversial in legal theory and was contested in legal
practice during apartheid. Lawyers who mounted
challenges to government oppression through law often
argued in court that the judiciary should read statutes in the
light of common law presumptions protecting the individual
interest in liberty and the equality of those subject to the
law. According to this view, only to the extent that a statute
explicitly requires that these interests are not to be
protected by the statute should judges countenance that
the legislature intended to subvert rather than serve the
interest of all those subject to the law in liberty and equality.
The idea is that the commitment of the legal order to the
supremacy of the Constitution and to the principle of
legality includes constitutional, albeit unwritten,
commitments to protecting these interests. Should officials
implement statutes in ways that go beyond these unwritten
constitutional constraints, so judges should find that they
acted outside the scope of their legal authority. This latter,
more expansive, conception of the rule of law is often
referred to as a substantive conception of the principle.
The question arises whether such a substantive conception
of the rule of law is required in South Africa, given the
existence of a supreme Constitution and a justiciable Bill of
Rights which includes the right to fair administrative action.
2.5 Democracy
One of the major rallying calls informing the struggle for liberation in
South Africa was the demand of ‘democracy for all’.198 As unambiguous
an aspiration as that sounded, what it concealed was the fact that the
concept of democracy is one that can and has been described as
‘controversial’ 199 or is at the very least contested.200 The supposed
‘controversy’ underlying democracy is related to the fact that as a concept,
democracy has proven immensely difficult to define in a singular and
uncontested manner, with many writers preferring to provide their own
definitions or understandings of the word. Contributing to the supposed
‘controversy’ is the fact that the term ‘democracy’ is commonly used in
conjunction with other concepts such as ‘liberal’, ‘constitutional’ or
‘majoritarian’. Despite this supposed ‘controversy’, democracy’s pre-
eminence as one of the dominant political ideas of modern times is
unassailable. Certainly in the South African Constitution, the idea of
democracy is a prominent one that permeates virtually all aspects of the
Constitution. Beyond the Preamble, section 1 of the Constitution ushers in
democracy by declaring South Africa to be ‘a sovereign, democratic state’.
Section 1(d) builds further on this by setting out the democratic values and
principles on which South Africa is founded, namely ‘[u]universal adult
suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government, to ensure accountability, responsiveness
and openness’. While not defining what democracy means in South Africa,
the section goes a long way towards making explicit those elements of
democracy that are paramount in the South African constitutional
context.201 In this section we consider the idea of democracy and its place
in the South African constitutional system.
SUMMARY
This chapter deals with the basic concepts of constitutional law which
inform the more detailed discussion of the various aspects of the South
African Constitution in subsequent chapters.
Constitutionalism is a multifaceted term and is concerned with the
distribution and allocation of powers in an organised way within a given
political community in which a government is established. It provides for
the establishment of the institutions of governance, such as the legislature,
the executive and the courts, as well as the allocation of powers, duties and
functions to the various institutions of government which legitimise the
exercise of power – within the limits set by the Constitution – of each of
these institutions. Constitutionalism also plays an important role in
determining the nature and basis of relations as they exist between
institutions of government and those they govern.
The principle of the separation of powers deals with the division of
governmental power across the three branches, namely the legislative
branch (parliament), the executive branch (president/prime minister and
cabinet) and the judicial branch (the courts). These branches ordinarily have
separate functions and are staffed by different personnel. This allows the
various branches to check the exercise of power of the other branches and
thus ensures accountability. There are, however, several models of
separation of powers and it is important to study these models and to
understand the specific model adopted by the South African Constitution as
well as the practical and legal consequences that flow from the adoption of
this model.
The counter-majoritarian dilemma arises in a constitutional democracy
(like that established in South Africa) in which the constitution rather than
parliament is supreme and in which the judiciary is independent and
empowered to review and set aside the actions of the other two branches of
government. This is because the system affords the power of judicial review
to courts. It thus permits an unelected and seemingly unaccountable
judiciary to declare unconstitutional and invalid laws made and actions
taken by democratically elected and accountable members of the legislature
and executive. This can appear to be anti-democratic. It is important to
engage with the arguments justifying the legitimacy of this system and
attempting to resolve the counter-majoritarian difficulty.
The rule of law is a founding value of the South African Constitution and
is based on the notion that the law is supreme. Hence, public power can
only be exercised in terms of the authority conferred by law and in a non-
arbitrary manner. Inherent in this concept is also the principle that everyone
is equal before the law, the law must be applied equally to all persons
irrespective of their status and all must be subject to the jurisdiction of the
ordinary courts. The rule of law can be conceptualised in formalistic terms
or it can entail a more substantive notion.
The core idea at the heart of democracy is that decisions affecting the
members of a political community should be taken by the members
themselves or at least by elected representatives whose power to make
decisions ultimately derives from the members. Different, and sometimes
overlapping, forms of democracy can exist within a state: direct democracy;
representative democracy; participatory democracy and constitutional
democracy. It is important to be able to distinguish the various forms of
democracy and to understand how these forms of democracy relate to one
another.
1 See Hogg, P (2007) Constitutional Law of Canada 5th ed 2.
2 See generally Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law,
Vol 1 Constitutional Law 10.
3 The British constitutional system, to be discussed in detail below, is one notable exception in
that the Constitution is not contained in one written document.
4 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995) para 262.
5 Currie and De Waal (2001) 10.
6 1952 (2) SA 428 (A).
7 Discussed in ch 1.
8 Akiba, O ‘Constitutional government and the future of constitutionalism in Africa’ in Akiba, O
(ed) (2004) Constitutionalism and Society in Africa 5.
9 Akiba (2004) 5–6.
10 For example, a society that has a monarchy or other form of traditional leadership which
enjoys popular legitimacy may make provision for the recognition of such persons within the
constitutional framework.
11 Currie and De Waal (2001) 26–31 list the main features that constitutions contain as follows:
(1) a preamble; (2) a chart of the state system; (3) an amending provision; (4) a bill of rights;
and (5) financial provisions.
12 See generally Bogdanor, V (2009) The New British Constitution and King, A (2007) The
British Constitution.
13 Modern British constitutional conventions and arrangements are said to have their origin in the
English Charter called the Magna Carta that was enacted in 1225 AD.
14 There have at various times been calls for the adoption of a written constitution. In this respect
see Institute for Public Policy Research (1991) A Written Constitution for the United Kingdom.
15 Dicey, AV (1885) Introduction to the Study of the Law of the Constitution 10th ed (1959).
16 See De Smith, SA and Brazier, R (1998) Constitutional and Administrative Law 8th ed ch 4.
17 See Mann, FA (1990) Further Studies in International Law 104.
18 Munro, CR (1999) Studies in Constitutional Law 2nd ed 135.
19 Motala, Z (1994) Constitutional Options for a Democratic South Africa: A Comparative
Perspective 48.
20 Currie and De Waal (2001) 14.
21 But see the discussion of the Human Rights Act below.
22 Available at http://www.hmso.gov.uk/acts1998/42/data.pdf.
23 See Elliot, M (2004) United Kingdom: Parliamentary sovereignty under pressure International
Journal of Constitutional Law 2(3):545–627 at 553.
24 Currie and De Waal (2001) 15.
25 See generally Chemerinsky, E (2009) Constitutional Law 3rd ed; Hall, DE, Bailey, SJD and
Barron, C (2006) Constitutional Law; Curtis, MK, Parker, C, Douglas, D and Finkelman, P
(2010) Constitutional Law in Context: Volume 1 2nd ed.
26 Currie and De Waal (2001) 17.
27 Motala (1994) 50.
28 Tenth Amendment of the US Constitution.
29 Currie and De Waal (2001) 19–20.
30 Motala (1994) 51.
31 Currie and De Waal (2001) 18.
32 The Bill of Rights was not contained in the US Constitution originally adopted but was
introduced by the first 10 amendments to the Constitution, which were ratified on 15 December
1791. Several further amendments adding to the Bill of Rights were subsequently adopted.
33 5 US (1 Cranch) 137 (1803).
34 The classic discussion of this dilemma can be found in Bickel, AM (1962) The Least
Dangerous Branch: The Supreme Court at the Bar of Politics. See also Ackermann, BA (1984)
The Storrs lectures: Discovering the Constitution Yale Law Journal 93:1013–72 and
Chemerinsky, E (1989) Foreword: The vanishing Constitution Harvard Law Review 103:43–
102.
35 The US Supreme Court said in Marbury v Madison para 176: ‘The powers of the legislature
are defined and limited; and that those limits may not be mistaken, or forgotten, the
constitution is written. To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at any time, be passed by those intended to
be restrained.’ See also para 177: ‘The constitution is either superior, paramount law,
unchangeable by ordinary means or it is on a level with ordinary legislative acts, and like other
acts, is alterable when the legislature shall please to alter it. If the former part of the alternative
be true, then a legislative act contrary to the constitution is not law: if the latter part be true,
then written constitution are absurd attempts, on the part of people, to limit a power, in its own
nature illimitable.’
36 Currie and De Waal (2001) 20.
37 Marbury v Madison 5 US (1 Cranch) 137 (1803) paras 177–9.
38 See generally Heun, W (2010) The Constitution of Germany: A Contextual Analysis and
Crosby, MB (2008) The Making of a German Constitution: A Slow Revolution.
39 Davis, D, Chaskalson, M and De Waal, J ‘Democracy and constitutionalism: The role of
constitutional interpretation’ in Van Wyk, DH, Dugard, J, De Villiers, B and Davis, D (eds)
(1994) Rights and Constitutionalism: The New South African Legal Order 69–70.
40 Davis et al (1994).
41 The German Constitutional Court affirmed this, using the German phrase, ‘eine objektive
Wertordnung’ in BVerfGE 39, 1 para 41: ‘The jurisprudence of the Federal Constitutional
Court is consistently to the effect that the basic right norms contain not only defensive
subjective rights for the individual but embody at the same time an objective value system
which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle
and stimulus for the legislature, executive and judiciary.’
42 See Arts 1 and 79(3) of the German Basic Law for the Federal Republic of Germany. This is
the German Constitution. The position with respect to the basic rights contained in Art 1
(dignity) and Art 20 (constitutional principles) is that they also cannot be amended.
43 Since 1949, the term ‘Rechtsstaat’ has appeared in Art 28 para 1 which states that ‘the
constitutional order in the Länder shall conform to the principles of the republican, democratic
and social state governed by the Rechtsstaat within the meaning of this Basic Law’. Since the
revision of 21 December 1992, the expression has also appeared in para 1 of the new Art 23
dealing with the European Union which states that ‘with a view to establishing a united Europe
the FRG shall participate in the development of the European Union, which is committed to
democratic, Rechtsstaat, social and federal principles as well as to the principle of subsidiarity,
and ensures protection of basic rights comparable in substance to that afforded by this Basic
Law’.
44 See Blaauw-Wolf, L and Wolf, J (1996) A comparison between German and South African
limitation provisions SALJ 113:267–96 at 268 who, while conceding that ‘[a] coherent concept
of Rechtsstaat has not yet been developed’, tell us that the concept is one that has a formal and
a material conception. The authors say of Rechtsstaat that ‘[t]he formal concept consists of a
number of elements for which no uniformly accepted definition exists. The material concept …
is based on the idea of justice in law and in administrative decisions’.
45 Stern, K (1977) Das Staatsrecht der Bundesrepublik Deutschland Volume One 615 quoted in
Blaauw-Wolf and Wolf (1996) 268.
46 Stern (1977) 615 quoted in Blaauw-Wolf and Wolf (1996) 268.
47 Kunig, P ‘Der Rechtsstaat ’ in Badura, P and Dreier, H (eds) (2001) Festschrift 50 Jahre
Bundesverfassungsgericht 421–44 at 434.
48 See Art 20(1) of the German Basic Law.
49 Motala (1994) 54.
50 Davis et al (1994) 71.
51 Bauman, Z (2007) Consuming Life 140.
52 See ch 1.
53 Arts 38–49 of the German Basic Law deal with the Bundestag.
54 Arts 50–3 of the German Basic Law deal with the Bundesrat. The Bundesrat’s involvement in
law making is limited to matters concerning the Länder (provinces) only.
55 Art 63 of the German Basic Law.
56 Arts 64–5 of the German Basic Law.
57 Arts 54–61 of the German Basic Law. See also Motala (1994) 55.
58 Arts 92–104 of the German Basic Law.
59 Art 93 of the German Basic Law. See also Davis et al (1994) 75–7.
60 Arts 20–37 of the German Basic Law.
61 Art 28 of the German Basic Law. See also Davis et al (1994) 75.
62 The Union of South Africa Act, 1909. This Act was passed through both Houses of the
Imperial Parliament in the United Kingdom exactly as it was forwarded after the South African
Convention was held. King Edward VII assented to the Act on 20 September 1909. A Royal
Proclamation of 2 December 1909 declared the date of the establishment of the Union to be
31 May 1910.
63 Republic of South Africa Constitution Act 32 of 1961.
64 Ss 7–15. See also Dugard, J (1978) Human Rights and the South African Legal Order 35.
65 Ss 108 and 118 entrenched English and Afrikaans as the two official languages of South Africa
with equal status and prohibited amendment of the entrenched sections except with the support
of two-thirds of the members of the House of Assembly and the Senate. However, a later
amendment allowed homelands to recognise one or more of the other indigenous languages for
that particular self-governing territory.
66 The post-1994 Constitutions did adopt a form of parliamentary government usually associated
with the Westminster constitutional model as – unlike in the US system – most members of the
executive remain members of the legislature.
67 Ch 1.
68 These provisions are augmented by s 165(5) of the Constitution which states that ‘[a]n order or
decision issued by a court binds all persons to whom and organs of state to which it applies’
while s 172(1) states that ‘[w]hen deciding a constitutional matter within its power, a court
must declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency’.
69 See, for example, Pharmaceutical Manufacturers Association of South Africa and Another: In
re Ex parte President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1;
2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) para 44. See also Roederer, C
‘Founding provisions’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South
Africa 2nd ed rev service 5 13.18. Roederer is of the view that the role of the proclamation of
supremacy in s 2 is to specify further the value in s 1(c).
70 Roederer (2013) 13.25.
71 Ch 14.
72 S 74(1).
73 S 74(3).
74 See S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 38.
75 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000)
para 44.
76 Michelman, F ‘The rule of law, legality and the supremacy of the Constitution’ in Woolman
and Bishop (2013) 11.37–11.38.
77 Michelman (2013) 11.38.
78 See s 74(1)(a) and (b).
79 Art 79(3) of the German Basic Law states: ‘Amendments to this Basic Law affecting the
division of the Federation into Länder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 shall be inadmissible.’
80 See Roederer (2013) 13.3–13.8 where he makes the point that section 1 does not explicitly
contain all the foundational values, for example separation of powers, ubuntu, transformation,
social justice and constitutionalism. The courts have recognised these values and several others
and we will discuss them in the chapters to follow.
81 See Woolman, S ‘Application’ in Woolman and Bishop (2013) 31.93–31.94.
82 See Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA
938 (CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 56 where the Constitutional Court
confirmed that the Constitution contained an ‘objective value system’, but declined to discuss
what this value system might be. See also Roederer (2013) 13.9–13.15.
83 See Carmichele and Geldenhuys v Minister of Safety and Security and Another 2002 (4) SA
719 (C) 728G–I where the Court affirmed that the ‘objective normative value system’ seeks to
establish a society based on human dignity, equality and freedom ‘and institutions of
government which are open, transparent and accountable to the people whom they serve. The
content of this normative system does not only depend on an abstract philosophical inquiry but
rather upon an understanding that the constitution mandates the development of a society
which breaks clearly and decisively from the past and where institutions which operated prior
to our constitutional dispensation had to be instilled with a new operational vision based on the
foundational values of our constitutional system.’
84 However, see Woolman (2013) 31.90 as well as Michelman (2013) 11.40.
85 S 40(1) describes the three levels of government as being ‘distinctive, interdependent and
interrelated’.
86 See s 41(1)(h)(i) to (vi). See also Currie and De Waal (2001) 119–20.
87 Seedorf, S and Sibanda, S ‘Separation of powers’ in Woolman and Bishop (2013) 12.1.
88 Constitutional Principle VI of Schedule 4 of the interim Constitution provided: ‘There shall be
a separation of powers between the legislature, executive and judiciary, with appropriate
checks and balances to ensure accountability, responsiveness and openness.’
89 The two classical texts on this subject are Vile, MJC (1967) Constitutionalism and the
Separation of Powers and Gwyn, WB (1965) The Meaning of the Separation of Powers: An
Analysis of the Doctrine from its Origin to the Adoption of the United States Constitution.
90 See Rautenbach, IM and Malherbe, EFJ (2012) Constitutional Law 6th ed. See also Pieterse, M
(2004) Coming to terms with judicial enforcement of socio-economic rights SAJHR 20:383–
417 at 386.
91 See Calabresi, SG, Berghausen, ME and Albertson, S (2012) The rise and fall of the separation
of powers Northwestern University Law Review 106(2):527–50 at 529–36.
92 See ch 1.
93 See Bennett, T and Murray, C ‘Traditional leaders’ in Woolman and Bishop (2013) 26.4 and
26.53. See also Seedorf and Sibanda (2013) 12.3 for a discussion on the roots of this doctrine.
94 Locke, J (1690) Second Treatise on Government (1986) 143–4, 150 and 159. See also Van der
Vyver, JD (1993) The separation of powers SAPL 8:177–91 who points out that Locke’s initial
conception of separation of powers classified the threefold governmental powers as legislative
power, executive power (including adjudication) and federative power (foreign relations).
95 Seedorf and Sibanda (2013) 12.5.
96 De Montesquieu, C (1748) De l’Esprit des Loix (Nugent, T (tr), Neumann, F (ed) (1949) The
Spirit of the Laws).
97 For an overview on the history of separation of powers preceding this era, see Seedorf and
Sibanda (2013) 12.3–12.10.
98 Seedorf and Sibanda (2013) 12.1.
99 Seedorf and Sibanda (2013) 12.5.
100 These values are enshrined in s 1(d) of the Constitution.
101 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 108.
102 See S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001) para 17.
103 (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May 1998) (CC)
para 60.
104 South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000]
ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) paras 18–22.
105 The Constitutional Court made this point in First Certification paras 106–113.
106 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996).
107 First Certification paras 108–12.
108 See ch 4.
109 See ss 43(a) and 42(1).
110 S 44(1)(a) read with s 44(2)(b).
111 S 44(4) provides that when Parliament exercises its legislative authority, it is only bound by the
Constitution and must act in accordance with and within the limits of the Constitution.
112 See ss 46 and 47 for provisions relating to the composition, election and membership of the
NA.
113 See ss 60 and 61 for provisions relating to the composition and allocation of delegates to the
NCOP.
114 See s 57 in respect of the NA and s 70 in respect of the NCOP.
115 See s 58 in respect of the NA and s 71 in respect of the NCOP.
116 S 73(2) permits members of the Cabinet or Deputy Ministers to introduce Bills in the National
Assembly. S 79(1) enjoins the President to assent to and sign a Bill which has been passed by
Parliament.
117 See s 85(1)(b) and (d).
118 See Executive Council of the Western Cape Legislature and Others v President of the Republic
of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA
877 (22 September 1995) para 51. See also AAA Investments (Proprietary) Limited v Micro
Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255
(CC); 2007 (1) SA 343 (CC) (28 July 2006) paras 49, 93 and 122–3; Constitutionality of the
Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC 10; 2002 (1) SA 447 (CC); 2001
(11) BCLR 1126 (5 October 2001) para 19; Executive Council of the Province of the Western
Cape v Minister for Provincial Affairs and Constitutional Development and Another, Executive
Council of KwaZulu-Natal v President of the Republic of South Africa and Others
(CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360
(15 October 1999) paras 123–4; Justice Alliance of South Africa v President of Republic of
South Africa and Others, Freedom Under Law v President of Republic of South Africa and
Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa
and Others (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC);
2011 (10) BCLR 1017 (CC) (29 July 2011) para 53.
119 See s 91(3).
120 See Pieterse (2004) 388.
121 See De Vos, P (2012, 14 August) Towards a parliament for the people Constitutionally
Speaking available at http://constitutionallyspeaking.co.za/towards-a-parliament-for-the-
people/.
122 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995).
See also Justice Alliance.
123 Act 209 of 1993.
124 Executive Council of the Western Cape Legislature para 51.
125 See also Currie and De Waal (2001) 98–102.
126 S 83(a).
127 Ss 84(1) and 85(1). For a discussion as to the import of the distinction between these two
capacities in which the President exercises power, see ch 5.
128 S 85(2)(a)–(e).
129 S 83(b).
130 S 91(1).
131 S 91(2).
132 S 91(3).
133 S 92(2).
134 The dominant role of the NA becomes apparent if we compare s 55 with the comparable s 68
dealing with the powers of the NCOP. The latter section makes no mention of an accountability
or oversight role for the NCOP.
135 S 92(3)(b).
136 S 102 establishes two different motions, one that provides for the removal of the Cabinet
excluding the President and another motion that provides for the removal of the entire Cabinet,
including the President.
137 S 89(1).
138 Because of the proliferation of quasi-judicial administrative bodies within the executive, this
absolute separation of functions is becoming less clear.
139 See also ch 6.
140 S 165(1).
141 S 166(a)–(e).
142 S 167(3)(a).
143 See s 34 which confers on everyone the right to access the courts.
144 Owing to the fact that s 170 precludes the magistrates’ courts or other courts of a status lower
than the High Court from reviewing the constitutionality of legislation or conduct of the
President, this discussion necessarily excludes magistrates’ courts.
145 S 172 details the various types of orders that the courts can make in relation to constitutional
matters. It is important to note that in so far as Acts of Parliament, Acts of the provincial
legislatures and conduct of the President are concerned, only the Constitutional Court may
issue an order of final invalidity, after which point such an order has full force and effect
(s 167(5)).
146 S 174.
147 See s 174 wherein the procedure for the appointment of judicial officers is set out. See also
s 177 which deals with the provisions in respect of the removal of judges.
148 S 165(2).
149 S 165(3).
150 S 165(4).
151 (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000)
para 25.
152 See s 176(1) and (2) which stipulates how long judges remain in office. In terms of this section,
Constitutional Court judges serve for a maximum term of 12 years or until such time as they
attain the age of 70, whichever occurs first. Other judges remain in office until they are
discharged from active service which is normally at the age of 75.
153 See s 176(3).
154 See s 177 which deals in detail with the procedure in respect of the removal of judges.
155 The process that must be followed by the JSC when a complaint is laid against a judge is set
out in the Judicial Service Commission Act 9 of 1994.
156 S 177(2).
157 See Makwanyane paras 87–9.
158 See generally Minister of Health and Others v Treatment Action Campaign and Others (No 2)
(CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002).
159 See Bickel (1962) 16.
160 See Friedman, B (2002) The birth of an academic obsession: The history of the counter-
majoritarian difficulty, Part five Yale Law Journal 112(2):153–260.
161 See Lenta, P (2004) Democracy, rights disagreements and judicial review SAJHR 20(1):1–31
for a detailed account and critique of some of the various arguments in support of and against
judicial review contributing to the ideals of democracy.
162 One of the views discussed by Lenta (2004) 4 is that of Waldron, J (1999) Law and
Disagreement who argues that judicial review is undemocratic. According to Lenta, Waldron
premises his argument on the fact that judicial review negates the democratic right of citizens
to participate equally in decisions concerning them and their interests. The arguments put
forward by Waldron seek to dispel the notion that there is something about the courts that
makes them especially equipped to make better decisions on constitutional rights or questions
of political morality. Instead, according to Waldron, the right to participate being a
foundational element of democracy is unjustifiably diminished when judicial review denies
citizens an opportunity to participate in decisions that are made the preserve of the courts.
163 See Lenta (2004) 5 for a discussion of Ely’s view that judicial review is legitimate or justifiable
on the basis that there are times when the courts may be called on to guarantee or safeguard the
democratic process (Ely, JH (1980) Democracy and Distrust: A Theory of Judicial Review).
164 See Lenta (2004) 6 for a discussion on Dworkin’s conception of a constitutional democracy
where Dworkin argues that judicial review is an integral part of a democracy in that it sees
democracy as being more than simple majoritarianism (Dworkin, R (1986) Law’s Empire). See
also generally Davis et al (1994) 6–7.
165 Lenta (2004) 5–6.
166 See Makwanyane para 88 for the views of Chaskalson P on the place of public opinion in
constitutional adjudication.
167 Makwanyane paras 87–9.
168 See Lenta (2004) 1 for a detailed account and critique of some of the various arguments in
support of and against judicial review contributing to the ideals of democracy. See also Van der
Walt, J and Botha, H (2000) Democracy and rights in South Africa: Beyond a constitutional
culture of justification Constellations 7(3):341–62 at 350.
169 See Lenta (2004) 10–11 where he discusses Dworkin’s substantive conception of democracy
that demands that a balance be struck between collective decisions and individual rights by
placing limitations on the majoritarian legislatures by means of mechanisms such as judicial
review (Dworkin (1986)).
170 See Lenta (2004) 17–18.
171 See Pieterse (2004) 391–2.
172 Van der Walt and Botha (2000) 353–5.
173 Lenta (2004) 31 makes this point as follows: ‘They are mixed because, even if the people are
deemed to have agreed to the inclusion of rights in their constitution, their consent cannot be
taken to extend to controversial judicial interpretations.’
174 See, for example, Magen, A (2008) The rule of law and its promotion abroad: Three problems
of scope Stanford Journal of International Law 45(1):51–116 and Rosenfeld, M (2001) The
rule of law and the legitimacy of constitutional democracy Southern California Law Review
74(5):1307–52.
175 Dicey(1959) xcvi–cli (also referred to in Currie and De Waal (2001) 75–7).
176 Dicey (1959) 45–54. See also Dugard (1978) 37.
177 See Klug, H (2010) The South African Constitution: A Contextual Analysis 225–9 where the
author describes how the courts (especially the magistrates’ courts) were ‘part of the state’s
disciplinary machinery’.
178 Dugard (1978) 43.
179 Dyzenhaus, D (2007) The pasts and future of the rule of law in South Africa SALJ 124(4):734–
61 at 738.
180 See Dyzenhaus (2007) 738–9.
181 See Klug (2010) 32 where he describes how a substantive conception of the rule of law
developed as part of human rights law. See also Dugard (1978) 39ff.
182 See Centre for Human Rights University of Pretoria available at
http://www.1chr.up.ac.za/images/files/documents/ahrdd/theme36/rule_of_law_lagos_1961.pdf.
183 (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October 1998).
184 Fedsure para 56.
185 See also President of the Republic of South Africa and Others v South African Rugby Football
Union and Others (SARFU III) (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR
1059 (10 September 1999) paras 38 and 148; Pharmaceutical Manufacturers paras 20–21;
Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04) [2005]
ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 49; Albutt v
Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4;
2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC) (23 February
2010) para 49; Democratic Alliance v President of South Africa and Others (CCT 122/11)
[2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)
para 12.
186 See Hoexter, C (2007) Administrative Law in South Africa 321.
187 (CCT27/04) [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March
2005) para 49.
188 Pharmaceutical Manufacturers para 66.
189 Pharmaceutical Manufacturers para 89.
190 Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC 16; 2000 (1)
SA 409; 1999 (12) BCLR 1420 (16 November 1999).
191 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999)
para 1.
192 Lesapo para 11.
193 Lesapo para 17.
194 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 47.
195 Janse van Rensburg and Another v Minister of Trade and Industry and Another (CCT13/99)
[2000] ZACC 18; 2001 (1) SA 29; 2000 (11) BCLR 1235 (CC) (29 September 2000) para 25.
196 S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
2002) para 18.
197 See Dyzenhaus (2007) 734–61.
198 In a press statement issued in 1992 by former President Nelson Mandela, he described
‘democracy for all South Africans’ as the final goal of negotiations. Available at
http://www.sahistory.org.za/archive/press-statement-nelson-r-mandela-president-anc-ancnp-
summit-meeting-world-trade-centre-johan.
199 Motala (1994) 19.
200 See, for example, Kurki, M (2012) Democracy and conceptual contestability: Reconsidering
conceptions of democracy in democracy promotion International Studies Review 12(3):362–
86; Benhabib, S (1996) Democracy and Difference: Contesting the Boundaries of the Political.
201 While not a definition of democracy, the principles and values in section 1(d) do, to a
significant degree, tend to tally with certain elements or practices which have been identified
and are said to be indicative of a democratic society. For example, (1) government based on
consent of the governed through free and fair elections; (2) the active participation of the
people, as citizens, in politics and civic life; (3) protection of the human rights of all citizens;
(4) respect for the rule of law; (5) majority rule and respect for minority rights; and (6)
constitutional limits of government. In general, see Beetham, D (2004) Towards a universal
framework for democracy assessment Democratization 11(2):1–17.
202 Roux, T ‘Democracy’ in Woolman and Bishop (2013) 10.1.
203 See Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)
[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006)
paras 96–117.
204 See generally Scarrow, SE (2001) Direct democracy and institutional change: A comparative
investigation Comparative Political Studies 34(6):651–65 at 654–65.
205 S 17.
206 Woolman captures the importance of s 17 as follows: ‘By creating political space for crowd
action, s 17 vouchsafes a commitment to a form of democracy in which the “will of the
people” is not always mediated by political parties and the elites that run them.’ Woolman, S
‘Assembly, demonstration, picket and petition’ in Currie, I and De Waal, J (2013) Bill of Rights
Handbook 6th ed 397–8.
207 Ss 84(2)(g) and 127(2)(f) of the Constitution confer this power on the President and provincial
Premiers respectively.
208 (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June
2008).
209 Merafong para 29.
210 See the dissenting judgment of Moseneke J in Merafong paras 133–40. For a more detailed
description of how the civic protest unfolded, became violent and its impact on the residents of
Merafong, particularly in Khutsong township, see Kirshner, J and Phokela, C (2010) Khutsong
and xenophobic violence: Exploring the case of the dog that didn’t bark particularly 8–14.
Available at
http://www.gcro.ac.za/sites/default/files/News_items/Xeno_reports_July2010/case_studies/5_
Khutsong_reprint_lowres.pdf.
211 See Kirshner and Phokela (2010).
212 See generally Kateb, G (1981) The moral distinctiveness of representative democracy
Ethics 91(3):357–74.
213 Sachs J in a concurring judgment in Doctors for Life stated that ‘representative democracy
undoubtedly lies at the heart of our system of government …’ para 229.
214 Roux (2013) 10.13.
215 See Currie and De Waal (2001) 86.
216 S 1(d).
217 S 42(3).
218 S 46(1)(d); 105(1)(d); 157(2)(a).
219 See s 57, in particular subsecs (1)(b) and (2)(b).
220 1998 (3) SA 430 (C).
221 De Lille para 27.
222 De Lille para 27.
223 For example New National Party v Government of the Republic of South Africa and Others
(CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999); August
and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1;
1999 (4) BCLR 363 (1 April 1999); Minister of Home Affairs v National Institute for Crime
Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004]
ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004).
224 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009) para 52.
225 (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)
para 26.
226 For a critical appraisal of the disconcerting implications of this passage, see Roux, T (2009)
Principle and pragmatism on the Constitutional Court of South Africa International Journal of
Constitutional Law 7(1):106–38 at 128–30.
227 UDM para 11.
228 UDM para 49.
229 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and the
African National Congress in a dominant party democracy Constitutional Court Review 2:1–86
at 23; Southall, R (1994) The South African elections of 1994: The remaking of a dominant-
party state The Journal of Modern African Studies 32(4):629–55; Giliomee, HB (1998) South
Africa’s emerging dominant-party regime Journal of Democracy 9(4):128–42; Friedman, S
‘No easy stroll to dominance: Party dominance, opposition and civil society in South Africa’ in
Giliomee, HB and Simkins, CEW (eds) (1999) The Awkward Embrace: One Party Domination
and Democracy 97; Alence, R (2004) South Africa after apartheid: The first decade Journal of
Democracy 15(3):78–92 at 78.
230 See Choudhry (2009) 24–5.
231 Currie and De Waal (2001) 87.
232 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 115.
233 See ss 59, 72 and 118.
234 Doctors for Life para 75.
235 Doctors for Life paras 106–8.
236 Doctors for Life para 116.
237 See s 7(1).
238 S 36(1).
239 S 39(1).
240 S 41.
241 Roux (2013) 10.18–10.19.
242 Roux (2013) 10.19.
243 Roux (2013) 10.19.
244 Doctors for Life para 111.
Separation of powers and the
three branches of government
3.1 Introduction
3.2 A new democratic constitutional dispensation within a
system of separation of powers
Summary
3.1 Introduction
A study of the different branches of government can best be done by using
the separation of powers doctrine as a lens through which to look at how the
three branches operate and how they relate to one another. In this chapter
we therefore introduce the distinctly South African version of the doctrine
of separation of powers. The judiciary is still developing this doctrine
through the interpretation of the South African Constitution. In chapter 2 of
this book we discussed the scope and content of the doctrine of separation
of powers as it manifests in various constitutional systems in other parts of
the world and, briefly, as it has thus far been developed in South Africa. In
the next three chapters we focus more pertinently on the various branches
of government established by the South African Constitution,1 namely the
legislature, the executive and the judiciary. We explore the composition,
powers and functions of these branches of government and the nature of the
relationship between the various branches with specific emphasis on the
notion that these branches operate in accordance with a system of checks
and balances. We also discuss the role, powers and functions of the National
Prosecuting Authority (NPA).2 This is an independent body created by the
Constitution and tasked with overseeing the prosecution of accused persons.
The discussion of these separate branches of government and their
relationship to each other takes place against the background of the
particular South African context highlighted in chapter 1, most notably by
what has been described as a ‘surprise re-entry’ and ‘resurgence’ of
traditional leadership in South Africa in the post-apartheid era.3 One of the
most vexing constitutional questions in the democratic era relates to the role
of traditional leaders and traditional governance structures, and where and
how these structures fit into a scheme of separation of powers with its three
branches of government.4 We will address this question as we discuss the
various branches of government. We do so as we contend that the
resurgence of customary practices and leadership institutions in the
democratic era is not as surprising as some commentators have argued. This
is especially so given that ‘South Africa is as rich in tenacious institutions
with indigenous roots as other African countries’ and that these institutions
‘were entrenched (albeit in distorted ways) over many decades of
segregationist and apartheid rule’.5 Moreover, if viewed from a historical
perspective, it is sometimes argued that traditional authorities in southern
Africa ‘have always engaged assertively with other sites of authority and
forms of government’.6 Current-day supporters of the maintenance and
restoration of traditional governance institutions and customs have argued
that traditional leaders have provided continuity of governance even though
they are undoubtedly tainted by their association with segregation and
apartheid. This is particularly so in rural areas where there were scant
alternative governance structures and the influence of the institutions of the
democratic state is at its weakest.7 Others, however, see the resurgence of
traditional governance institutions as a regressive step that undermines
progress towards democratic consolidation in South Africa because
traditional governance structures are inherently undemocratic, patriarchal
and potentially oppressive.8
Whatever a person’s view on traditional leadership and traditional
governance institutions, it is nevertheless important to explore the powers
and functions of the various branches of government and the relationship
between these branches with reference to these institutions. To this end we
also discuss the powers and functions of the National House of Traditional
Leaders. Parliament created this institution via the National House of
Traditional Leaders Act (the National House Act) 9 and pursuant to
section 212(2)(e) of the Constitution. This section permits the promulgation
of legislation to deal with matters relating to issues of traditional leadership.
Traditional descriptions of South African constitutional law ignore those
aspects of the South African political and governance context that do not
neatly reflect the Western-style constitutional structures established by the
Constitution. In this book we focus on these structures but do so with an
awareness that there are different centres of power in South Africa. One is
centred around the formal institutions of the legislature, the executive and
the judiciary, all of which are described and regulated in the Constitution.
Another is centred around a more informal and ever-changing set of
institutions such as traditional leadership institutions.
Apart from discussing the various branches of government with
reference to the role played by traditional leaders, we will also discuss the
various branches of government with reference to the role played by
political parties in bringing the Constitution into operation. Power is centred
in such political parties – especially the leadership of the most dominant
political parties, the African National Congress (ANC) and the Democratic
Alliance (DA). The internal culture of these parties and the leadership style
of their leaders thus influence how especially the legislature and the
executive operate within the doctrine of separation of powers.
Lastly, we consider the composition, powers and functions of various
other constitutional institutions created to support constitutional democracy.
These are sometimes referred to collectively as the Chapter 9 institutions.
These constitutional bodies are required to play an oversight role over the
legislature, the executive and the judiciary, and to deepen and safeguard
democracy. However, we limit our discussion in this regard to the following
institutions: the Public Protector; 10 the Auditor-General; 11 and the
Electoral Commission.12 In addition, we consider the Judicial Service
Commission (JSC).13
In the following chapters we therefore deal with four interrelated issues
relating to the structures of government as these operate within a system of
separation of powers:
• The current chapter sets out and explains the framework within which
the three branches of government operate and provides a brief overview
of the historical origins of the doctrine of separation of powers and its
influence on South Africa’s new constitutional dispensation.
• Chapter 4 deals with the composition and functioning of the legislature
and its relationship with the other branches of government.
• Chapter 5 deals with the composition and functioning of the executive
and its relationship with the other branches of government.
• Chapter 6 deals with the composition and functioning of the judiciary
and its independence from the other branches of government as well as
the prosecuting authority.
• Chapter 7 considers the role of certain Chapter 9 institutions.
SUMMARY
1 See, generally, Chapters 4, 5 and 8 of the Constitution which detail the provisions pertaining to
Parliament, the President and the national executive, and the judiciary respectively, read with
Chapters 3 (co-operative government), 6 (the provinces), 7 (local government) and Schedules 4
and 5 that delineate areas of concurrent national and provincial, and exclusive provincial
legislative competences.
2 See s 179 of the Constitution.
3 Oomen, B (2005) Chiefs in South Africa, Law, Power and Culture in the Post-Apartheid Era
11.
4 Addressing this problem is made even more difficult by the fact that many traditional leaders
were co-opted by the apartheid regime. At the time of writing there has been a resurgence of
support for traditional leadership institutions and the role of African customary law. Evidence
of the latter can be garnered from the promulgation of the Communal Land Rights Act 11 of
2004 (CLaRA) and the subsequent constitutional challenge to it in Tongoane and Others v
National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010] ZACC 10;
2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010). See also Pilane and Another
v Pilane and Another (CCT 46/12) [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (28 February
2013). For the leading commentary on CLaRA, traditional leadership and communal land, see
Claassens, A and Cousins, B (eds) (2008) Land, Power, and Custom: Controversies Generated
by South Africa’s Communal Land Rights Act.
5 See Beall, J, Mkhize, S and Vawda, S (2005) Emergent democracy and ‘resurgent’ tradition:
Institutions, chieftaincy and transition in KwaZulu-Natal Journal of Southern African
Studies 31(4):755–71 at 756.
6 Beall et al (2005) 756.
7 Hobsbawm, E and Ranger, T (eds) (1983) The Invention of Tradition and Vail, L (ed) (1989)
The Creation of Tribalism in Southern Africa.
8 See Beall et al (2005) fn 5.
9 Act 22 of 2009.
10 S 181(1)(a) of the Constitution.
11 S 181(1)(e) of the Constitution.
12 S 181(1)(f) of the Constitution.
13 S 178 of the Constitution.
14 The Constitution of the Republic of South Africa 200 of 1993.
15 See s 1 read with s 7 of the Constitution. The metaphor of a bridge was first introduced into
South Africa’s constitutional lexicon by the postamble to the interim Constitution titled
‘National Unity and Reconciliation’. It was popularised by Etienne Mureinik – see Mureinik, E
(1994) A bridge to where? Introducing South Africa’s interim Bill of Rights SAJHR 10:30. See
also S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3)
SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 262 where Mohamed DP,
quoting in part the postamble to the interim Constitution, said: ‘The South African Constitution
is different: it retains from the past only what is defensible and represents a decisive break
from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian,
insular, and repressive and a vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the
Constitution … What the Constitution expressly aspires to do is to provide a transition from
these grossly unacceptable features of the past to a conspicuously contrasting “future founded
on the recognition of human rights, democracy and peaceful co-existence and development
opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.’
16 Makwanyane para 220.
17 S 165(1) and (2).
18 (CCT 41/08) [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC) (22 October
2008). This case is known as Glenister I as the Constitutional Court later handed down
judgment in a similar matter in Glenister v President of the Republic of South Africa and
Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC)
(17 March 2011), known as Glenister II.
19 Glenister I paras 29–32.
20 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 37. See also Certification of the Constitution of the Republic of South Africa, 1996
(CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) paras 106–13 where the Court held that the provisions of the Constitution
are structured in a way that makes provision for the separation of powers, and South African
Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000] ZACC 22;
2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) para 22.
21 See, for example, s 172(1) of the Constitution which provides that a court: ‘(a) must declare
that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency; and (b) may make any order that is just and equitable, including: (i) an order
limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the
declaration of invalidity for any period and on any conditions, to allow the competent authority
to correct the defect’.
22 S 167(5) of the Constitution provides: ‘The Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the President is constitutional,
and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court,
or a court of similar status, before that order has any force.’
23 S1(c) read with s 8(1).
24 Doctors for Life para 38.
25 Doctors for Life para 37.
26 See Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02)
[2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) para 99 where the
Court stated: ‘The primary duty of courts is to the Constitution and the law, “which they must
apply impartially and without fear, favour or prejudice”. The Constitution requires the state to
“respect, protect, promote, and fulfil the rights in the Bill of Rights”. Where state policy is
challenged as inconsistent with the Constitution, courts have to consider whether in
formulating and implementing such policy the state has given effect to its constitutional
obligations. If it should hold in any given case that the state has failed to do so, it is obliged by
the Constitution to say so. In so far as that constitutes an intrusion into the domain of the
executive, that is an intrusion mandated by the Constitution itself.’
27 Glenister I para 33. See also Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28;
2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013) para 31 where the
Constitutional Court affirmed is reluctance to interfere in the power of the NA to determine its
own internal arrangements, proceedings and procedures, and to make rules and orders
concerning its business.
28 Doctors for Life para 44. This test applies equally to executive decision making and execution
of law and policy.
29 Glenister I para 35. See also Liebenberg, S (2010) Socio-Economic Rights Adjudication under
a Transformative Constitution 67.
30 Liebenberg (2010) 67.
31 Liebenberg (2010) 69, quoting Minow, M (1990) Making All the Difference: Inclusion,
Exclusion and American Law 361.
32 Liebenberg (2010) 71.
33 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) paras 108–9. See also De Lange v Smuts NO and Others (CCT26/97)
[1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (28 May 1998) para 60 where
Ackermann J stated: ‘I have no doubt that over time our Courts will develop a distinctively
South African model of separation of powers, one that fits the particular system of government
provided for in the Constitution and that reflects a delicate balancing, informed both by South
Africa’s history and its new dispensation, between the need, on the one hand, to control
government by separating powers and enforcing checks and balances and, on the other, to
avoid diffusing power so completely that the government is unable to take timely measures in
the public interest.’
34 Doctors for Life para 70.
35 In S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001), the Constitutional Court found that the legislative prescription requiring courts
to impose mandatory minimum sentences in certain cases did not necessarily infringe on the
separation of powers doctrine. As checks and balances constitute an integral part of the
separation of powers principle and prevent one arm of the state from becoming too powerful in
the exercise of the powers allocated to it, legislation on penal sentencing does not, per se,
infringe the separation of powers principle between the legislature and the judiciary.
36 De Vos, P (2011, 24 November) Cabinet statement on transformation of judicial system
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/cabinet-statement-
on-transformation-of-judicial-system/.
37 See Yacoob, Z (2012) ‘The Dynamic Constitution’, Keynote Address, University of Cape
Town Constitution Week, 12 March 2012, available at
http://constitutionallyspeaking.co.za/justice-zac-yacoob-on-the-dynamic-constitution/ where, in
reference to the proposed Department of Justice’s ‘review’ of the jurisprudence of South
Africa’s Constitutional Court and Supreme Court of Appeal and an evaluation of the
contribution or lack thereof of jurisprudence to the transformation of society, the Justice stated:
‘… this cannot be intended to mean that the executive and the legislature should be able to
discuss matters of importance with the judiciary directly and outside a court hearing, in an
effort to influence it. If this is what is meant I would find it difficult to agree.’
Separation of powers and the
national legislature
4.1 Introduction
4.2 General rules regarding the operation of Parliament
4.2.1 Introduction
4.2.2 Openness and transparency in Parliament
4.2.3 The powers and privileges of Members of Parliament
4.2.4 Public involvement in the legislative and other processes
of the National Assembly and the National Council of
Provinces
4.3 The National Assembly
4.3.1 The composition of the National Assembly
4.3.2 Eligibility for election to the National Assembly
4.3.3 Duration of the National Assembly, sittings and its
dissolution
4.3.4 Powers and functioning of the National Assembly
4.4 The National Council of Provinces
4.4.1 The composition and functioning of the National Council
of Provinces
4.4.2 Procedures, internal arrangements and committees of the
National Council of Provinces
4.5 Functions of Parliament
4.5.1 Introduction
4.5.2 National forum for public consideration of issues
4.5.3 Holding the executive accountable to Parliament
4.5.4 Maintaining oversight of the national executive authority
and other organs of state
4.5.5 Passing of legislation
4.5.6 Delegation of legislative powers to executive or other
legislatures
4.6 National House of Traditional Leaders
Summary
4.1 Introduction
In this chapter, we focus on the national sphere of government and discuss
the powers, functions and operation of the national legislature or
Parliament as it is referred to in the Constitution. Parliament has the power
to:
• consider, pass, amend or reject legislation on any subject that falls within
its jurisdictional areas of competence
• ensure that all executive organs of state in the national sphere of
government are accountable to it
• maintain oversight of the exercise of national executive authority,
including the implementation of legislation
• maintain oversight of any organ of state.1
Apart from considering, passing, amending or rejecting legislation,
therefore, Parliament has the power to check the exercise of power by the
national executive and other organs of state and to ensure that the national
executive and various other organs of state are held accountable for the
manner in which they exercise their powers.
Parliament is a bicameral legislature. This means that it is divided into
two Houses. The lower House of Parliament is called the National
Assembly (NA) and the upper House of Parliament is called the National
Council of Provinces (NCOP).2 Although legislative power is distributed
between these two Houses, the NA is constitutionally and politically the
dominant House. In essence, the idea behind bicameralism is that the two
Houses of Parliament represent different interests and thus act as a check on
one another.3 Further, having two Houses is said to provide for better
representation of the electorate in a heterogeneous society, to assist in
alleviating Parliament’s workload and to promote a thorough consideration
of matters before Parliament.4 We argue that the main justification for
bicameralism is to ensure adequate democratic representation of different
interests, namely the interests of the electorate in general by the NA on the
one hand, and the interests of the nine provinces by the NCOP on the other
hand.5
In most bicameral legislatures, including the South African Parliament,
the members of each House are elected or appointed in different ways. In
the case of the NA, members are elected via their respective political parties
in a national election. In the case of the NCOP, they are elected via the
provincial legislatures. The members of each House are elected or
appointed in different ways because they are supposed to represent different
broad interests and to act as a check on the exercise of power by the other
House. In South Africa, the NA is intended to represent the interests of all
South Africans6 while the NCOP is intended to represent the interests of
provinces in the national legislature.7
Although legislative authority and other powers are distributed between
the two Houses, the NA is the dominant and more powerful House of
Parliament. This is because:
• the NA elects 8 and can also dismiss 9 the President
• with the exception of two members, all the other members of the
executive must be selected from and remain members of the NA10
• the NA is explicitly tasked with the duty to hold all executive organs of
state in the national sphere of government accountable to it and to
maintain oversight of the exercise of national executive authority,
including the implementation of legislation 11
• the NA plays a decisive role in various other appointments.12
The NCOP has a less defined role in holding the executive to account and
has no role in the appointment or dismissal of members of the executive.
Unlike the executive, which has its seat in Pretoria, the seat of Parliament is
in Cape Town.13 However, an Act of Parliament can determine that the seat
of Parliament is changed as long as the correct procedure is followed.14
Sittings of the NA or the NCOP are permitted at places other than the seat
of Parliament, but only on the grounds of public interest, security or
convenience, and if provided for in the rules and orders of the NA15 or the
NCOP.16
It is important to note that, whether in the NA or the NCOP, the
democratic link between voters and the legislature is mediated by political
parties. This means in practice a person cannot become a member of one of
the Houses of the national legislature unless the person is a member of a
political party. The Constitution thus establishes not only a parliamentary
system of government in which the majority party in the NA forms a
government, but also a system of party government. This is because the
system cannot function in the absence of political parties.17
Party government is usually defined as a system of government in which
political parties have a decisive influence on the way in which the
government is composed, on government policy and on the actions of the
elected representatives in the legislature.18 Through a mixture of
conventions and traditions inherited from British constitutional law and the
effects of the electoral system employed to select members of the NA,
political parties and their leaders are extremely powerful in South Africa
and loom large in any discussion of the composition and functioning of the
national legislature. Despite the important role played by political parties,
the Constitution (as well as national legislation) provides little guidance as
to the manner in which political parties must operate and about the specific
relationship between the leadership of a political party (who might not serve
in the legislature) and its representatives in the legislature or the
executive.19 Thus it is unclear to what extent political party leaders can
‘micromanage’ their members in the legislature and the executive and
whether the extraparliamentary leadership of a political party can dictate to
its members what they must say and how they should act in the legislature
or executive.
CRITICAL THINKING
4.2.1 Introduction
The NA and the NCOP have the power to determine and control their own
internal arrangements, proceedings and procedures.31 The Constitution
authorises the NA and the NCOP to make joint rules and orders concerning
the joint business of the two Houses.32 The Constitution also authorises the
two Houses to make rules separately regarding their own operations.33 It
also requires the NA and NCOP to make rules and orders to provide for the
composition, powers and functioning of committees.34 While Parliament
can make such rules, these rules have to comply with and give effect to the
provisions of the Constitution. Rules that clash with any section of the
Constitution can therefore be declared invalid by a court of law.35 Both
Houses of Parliament and their committees have wide-ranging powers not
dissimilar from a court of law and can summon any person, including the
President and Cabinet Ministers, to appear before them to:
• give evidence under oath or affirmation, or to produce documents
• require any person or institution to report to it
• compel, in terms of national legislation or the rules and orders, any
person or institution to comply with a summons or requirement to
produce documents
• to receive petitions, representations or submissions from any interested
persons or institutions.36
Usually, the relevant committee will request a witness to appear before it to
answer questions and to produce any documents required, or institutions or
individuals will request to make written and oral submissions to a
committee. If a witness refuses to appear after being asked to do so by a
committee, that witness can be summonsed to do so and can ultimately be
compelled to appear and to answer questions. However, the Rules of the
National Assembly 37 make it clear that this power should be exercised
sparingly and prohibits any committee from summonsing a witness without
first having satisfied the Speaker that the evidence of such witness will be
material to the enquiry.38
It is therefore clear that the two Houses of Parliament have wide powers
to fulfil their mandates in the best way chosen by each of them. However,
there are at least three distinct ways in which these powers are curtailed by
the Constitution:
• First, both Houses are required to act in an open and transparent manner
and cannot make Rules that would extinguish the constitutional
requirement of openness.
• Second, members of both Houses as well as Cabinet members who
appear before them enjoy certain privileges which cannot be curtailed by
Parliament or anyone else.
• Third, both Houses are required to facilitate public involvement in their
legislative and other processes.
CRITICAL THINKING
However, there are also major disadvantages associated with the system:
• First, a closed list proportional representation electoral system does not
create a strong link between voters and their elected representatives. This
has the potential to lead to a lack of responsiveness to the concerns of
voters by elected MPs. In this system the political party as a whole rather
than individual MPs has to account to voters at the next election.
Individual MPs do not lose their seats because of the anger of voters but
because they have lost the support of the leaders of the political party
they serve.111
• Second, the closed list proportional representation system potentially
gives much power to the leaders of a party who may be able to determine
who appears on electoral lists and where on those lists they are ranked.
This means that the leaders of political parties may have disproportionate
influence over the way in which individual MPs behave.
• Third, the system potentially produces a less effective and stable
government, especially where one political party is not dominant. This is
because a single party may not gain an overall majority in Parliament
and will then have to form a coalition government with other parties. A
coalition government may find it difficult to agree on all aspects of a
joint programme of action.112
CRITICAL THINKING
The powers of the NCOP vary according to the impact of the legislation in
question on provincial concerns and the nature of the legislation being
considered. If the legislation does not directly affect the provinces, NCOP
members usually each have an individual vote which they cast in
accordance with the wishes of their respective political parties.206 In all
other cases – including when amending the Constitution or dealing with
Bills affecting the provinces – each provincial delegation casts a single
vote.207 It does so under instruction, also called a mandate, from the
provincial legislature of the province represented by the delegation.208 As
the Constitutional Court has explained in Certification of the Amended Text
of the Constitution of The Republic Of South Africa, 1996, the NCOP ‘is a
council of provinces and not a chamber composed of elected
representatives. Voting by delegation reflects accurately the support of the
different provincial legislatures for a measure under consideration’.209 ‘In
this manner the provincial legislatures are given a direct say in the national
law-making process through the NCOP.’ 210
The various NCOP delegations have found it difficult to operate
effectively, especially to obtain the requisite mandate from their respective
provincial legislatures in the short time often provided for this task. There
are a number of reasons for this. Because provincial legislative attention is
so taken up with carrying out mandates imposed on them from above, and
because they are far removed from the centre of political power in
Parliament, they are ill equipped in terms of information and expertise to
pass judgment on national legislation and to provide informed mandates to
the respective NCOP delegations. This problem is exacerbated by poor
communications between the NA and the NCOP and between NCOP
delegations and their provincial legislatures. Draft Bills are often provided
to the NCOP with little time for provinces to respond.211
In addition, NCOP members are supposed to provide a bridge between
the national legislature and provincial legislatures, but their political links
with both are often weak and ineffective. The technical and human
resources for close communication are often lacking. Individual NCOP
members, shuttling between Parliament in Cape Town and remote
provincial capitals, are placed under enormous strain. It is highly
unrealistic, and probably unnecessary, for provincial legislatures to pay the
same attention to national legislation as does the NA. It is far more
important for them to come to grips with local issues and problems.
However, it is critical that provinces are able to voice their opinions when
legislation directly affects the economic or social interests of their region,
and that they can ensure that national legislation they will be required to
implement is workable. Another problem is that there is little linkage
between the exchange of information and ideas that goes on within the
processes of executive intergovernmental relations and exchanges at the
parliamentary level through the NCOP. Indeed, provincial executives take
little interest in NCOP matters. This differs greatly from the operation of
the German Bundesrat, the members of which are themselves provincial
executives, thus integrating legislative and executive intergovernmental
relations.212
Because of these practical difficulties as well as the limited powers and
functions formally bestowed on the NCOP, the NCOP, as the second House
of the national Parliament, is often viewed as the less powerful and
influential of the two chambers of the bicameral South African Parliament.
This is so because almost all Cabinet Ministers will be members of the NA
while NCOP members cannot serve as Cabinet Ministers. Although Cabinet
Ministers and Deputy Ministers may attend and may speak in the NCOP,
they may not vote in that chamber.213 Moreover, unlike the NA, the NCOP
is not given a clear mandate to hold members of the Cabinet accountable or
to maintain oversight over the executive although the NCOP plays an
important role in the passing of legislation.
Nevertheless, the NCOP and its committees are, under section 69 of the
Constitution, given broad powers. They may ‘summon any person to appear
before it to give evidence on oath or affirmation or to produce documents;
require any institution or person to report to it; compel, in terms of national
legislation or the rules and orders, any person or institution to comply with
a summons; and receive petitions, representations or submissions from any
interested persons or institutions.’
CRITICAL THINKING
4.5.1 Introduction
The main function of Parliament is to enact national legislation for the
Republic of South Africa. However, the enactment of legislation is not the
only function bestowed on Parliament by the Constitution. On a more
symbolic level, Parliament also provides a national forum for public debate
on issues of national importance. In this sense, Parliament provides a
platform for representatives of political parties to present their views and
debate each other.
While both Houses of Parliament play an integral role in the adoption of
legislation, and while both provide platforms for debate about important
issues, the Constitution confers additional powers on the NA that enable it
to fulfil a special role as a ‘check’ on the executive authority. This special
task is bestowed on the NA because of the fact that it appoints and can
dismiss the President. It follows that the President and his or her Cabinet
need to retain the confidence and hence the support of the NA to continue
doing their job. Although the tasks of the two Houses are therefore not
identical, the two Houses of Parliament can be said to fulfil four main
functions. They must:
• provide a forum for debate on important issues 229
• hold the executive organs of state in the national sphere of government
accountable to Parliament 230
• exercise an oversight function over the exercise of national authority and
over other organs of state 231
• pass national legislation.232
CRITICAL THINKING
CRITICAL THINKING
This was bad enough, but more was in store. As President Thabo
Mbeki began his address on television I had the uncomfortable
sensation of watching a concerted effort to frighten Scopa and the
auditor-general by a sheer show of executive force. In his address
Mbeki emphasised the government’s efforts to fight corruption and
its support for any probe, committed the government to upholding
the rule of law, and emphasised that it would not break any
contracts it had legally entered into. He complained bitterly about
the fact that Scopa and the auditor-general had not communicated
with the cabinet and cabinet subcommittees before coming to its
conclusions about their decisions. This would be a recurring theme
in the government’s defence.277
Of course, this does not mean, for example, that the majority party
would have changed course and ditched the Secrecy Bill in favour
of an alternative Bill proposed by Lindiwe Mazibuko. The majority
party would remain entitled to make the final decision on which Bill
to pass into law – no matter how unpopular that Bill might be with
the electorate.
But in the long run its MPs would have been forced to engage
seriously with an alternative Bill proposed by the opposition. A
failure to do so in a serious and competent manner would have run
the risk of turning away more informed voters and would have
eroded the voting majority of the dominant party. On the other
hand, if the MPs of the majority party had managed to show up the
Bill proposed by the opposition as frivolous, unworkable or
unpopular, the party would have been able to gain more support
from voters currently supporting an opposition party or not
supporting any party at all. The judgment will not cure all the ills
that beset our democratic Parliament. The culture within political
parties, which requires strict party discipline and control of
individual MPs by party leaders, is too strong for this. But it is a
first small step towards making our democratic Parliament relevant
once more.299
Total 60 70
4.5.6 Delegation of legislative powers to executive or
other legislatures
According to section 44(1)(a)(iii) of the Constitution, Parliament may
assign its legislative authority, except the power to amend the Constitution,
to any legislative body in another sphere of government. This power relates
to the assignment of power to other legislative spheres of government. It is
therefore explicitly provided in the Constitution that Parliament is allowed
to assign its law-making power, except the power to amend the
Constitution, to provincial legislative and municipal councils. Where the
national Parliament is of the view that a certain issue may be better dealt
with by provincial legislatures, it may therefore explicitly empower such
legislatures to enact legislation on that topic even if the topic falls outside
the exclusive or concurrent functional areas in which provincial legislatures
have the competence to legislate.
A more difficult question arises where Parliament delegates its law-
making powers to the executive. This kind of delegation is not unusual as
Parliament is not always well equipped to formulate detailed provisions
regarding the implementation and regulation of laws. In Executive Council
of the Western Cape Legislature and Others v President of the Republic of
South Africa and Others, the Constitutional Court stated that in a modern
state, Parliament cannot be expected to deal with all such matters itself and
it is therefore necessary for effective law making to read this power
delegating such legislative functions to other bodies into the
Constitution.351
However, there are limits to what kind of law-making powers can be
delegated and to whom.352 In Executive Council of the Western Cape
Legislature, the Constitutional Court stated that although there is nothing in
the Constitution which prohibits Parliament from delegating subordinate
regulatory authority to other bodies, there is ‘a difference between
delegating authority to make subordinate legislation within the framework
of a statute under which the delegation is made, and assigning plenary
legislative power to another body …’ 353 The question in each case would
be whether, given the structure of the Constitution and the relevant
empowering text, the Constitution permits a delegation of such law-making
power or not. The Constitution uses a range of expressions when it confers
legislative power on Parliament and the wording used will often give an
indication of whether delegations would be permissible. As Ngcobo stated
in Executive Council of the Province of the Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another, Executive
Council of KwaZulu-Natal v President of the Republic of South Africa and
Others:
Sometimes [the Constitution] states that ‘national
legislation must’; at other times it states that something
will be dealt with ‘as determined by national legislation’;
and at other times it uses the formulation ‘national
legislation may’. Where one of the first two formulations
is used, it seems to me to be a strong indication that the
legislative power may not be delegated by the
Legislature, although this will of course also depend
upon context.354
The text of the relevant empowering provision of the Constitution must be
read in context and we should consider factors that flow from the nature of
the Constitution, its structure and scheme. To this end, as stated by the
Constitutional Court in Justice Alliance of South Africa v President of
Republic of South Africa and Others, Freedom Under Law v President of
Republic of South Africa and Others, Centre for Applied Legal Studies and
Another v President of Republic of South Africa and Others, we must
consider ‘the nature and extent of the delegation’.355
We must keep in mind that the primary reason for delegation is to ensure
that the legislature is not overwhelmed by the need to determine minor
regulatory details. Delegation relieves Parliament from dealing with
detailed provisions that are often required for the purpose of implementing
and regulating laws and is necessary for effective law making. However, we
must draw a distinction between delegation to make subordinate legislation
within the framework of an empowering statute and ‘assigning plenary
legislative powers to another body’.356 Where the doctrine of
parliamentary sovereignty governs, Parliament may delegate as much
power as it chooses. In a constitutional democracy, however, such as that
operating in South Africa, Parliament may not ordinarily delegate its
‘essential legislative functions’ to the executive.357 This means that
Parliament can delegate some of its powers to the executive, most notably
through delegating the power to make regulations in terms of legislation
passed by Parliament to individual Ministers or to the President. However,
Parliament may not delegate its plenary legislative power, that is, the power
to make original legislation, to an executive authority such as the President
or a Cabinet Minister as such a delegation will breach the separation of
powers doctrine.358 It may only delegate the power to make subordinate
legislation such as proclamations and regulations.359 This distinction
between original and subordinate legislation is drawn from the fact that
when Parliament makes legislation, it does so in accordance with the
‘original’ legislative powers conferred on it by the Constitution. However,
the development of legislation, such as proclamations, by the executive
refers to the law that is made by virtue of the power granted from a lawful
source, such as the Constitution.360 Thus, although the separation of
powers doctrine does not allow one branch of government to exercise a
power exclusively allocated to another branch of government, it can
exercise powers delegated to it by another branch as long as this power is
not exclusively reserved for the other branch of government.
The question whether Parliament can assign its law-making power to the
executive was first answered in the case of Executive Council of the
Western Cape Legislature. This case involved section 16A(1) of the Local
Government Transition Act 361 that aimed to transform local government
in line with the new constitutional dispensation. This section provided that
‘the President may amend this Act and any schedule thereto by
proclamation in the gazette’. This section therefore effectively conferred on
the President, the head of the executive branch of government in the
national sphere of government, the power to amend the Act by
proclamation. The President used this power to transfer certain functions
provided for in the Act from the provincial to the national sphere of
government. The Executive Council of the Western Cape Legislature
challenged the constitutionality of this section and the relevant
proclamation on the basis that Parliament cannot delegate its law-making
function to the executive. Chaskalson P, as he then was, held:
[t]he legislative authority vested in Parliament under
section 37 of this [interim] Constitution is expressed in
wide terms – ‘to make laws for the Republic in
accordance with this Constitution’. In a modern state,
detailed provisions are often required for the purpose of
implementing and regulating laws, and Parliament
cannot be expected to deal with all such matters itself.
There is nothing in the Constitution which prohibits
Parliament from delegating subordinate regulatory
authority to other bodies. The power to do so is
necessary for effective law-making. It is implicit in the
power to make law for the country and I have no doubt
that under our Constitution Parliament can pass
legislation delegating such legislative functions to other
bodies. There is, however, a difference between
delegating authority to make subordinate legislation
within the framework of a statute under which the
delegation is made, and assigning plenary legislative
power to another body, including, as section 16A does,
the power to amend the Act under which the assignment
is made.362
The Court then decided in this case that it was inconsistent with the doctrine
of separation of powers for Parliament to delegate the power to amend its
laws to the President as head of the executive.363 It argued that although
the need for assignment of subordinate legislative authority cannot be
overemphasised, the assignment of plenary legislative powers is a different
matter all together. This is not allowed under the new constitutional
dispensation as it could give rise to a constitutional crisis. The Court
indicated that the relevant constitutional provision which deals with
legislative authority is not merely directive but is peremptory. It therefore
cannot be said that the power to delegate primary legislative power is
implied in the Constitution. Therefore, Parliament cannot delegate its
original law-making power to the executive. It can only delegate the
making of subordinate legislation such as presidential proclamations and
ministerial regulations. The position is the same under the 1996
Constitution.364
SUMMARY
The Constitution establishes a bicameral Parliament consisting of two
Houses. The National Assembly (NA) is the directly elected House of
Parliament representing the interests of all the people, to which MPs are
elected in terms of a pure proportional representation electoral system.
The National Council of Provinces (NCOP) is the indirectly selected House
of Parliament representing the interests of the various provinces in the
national Parliament. The NCOP comprises provincial delegations consisting
of six permanent delegates appointed by each of the provincial legislatures
and four special delegates nominated from among the members of each of
the provincial legislatures.
The two Houses of Parliament together provide a forum for debate on
important issues; hold the executive organs of state in the national sphere of
government accountable to Parliament; exercise an oversight function over
the exercise of national authority and over other organs of state; and pass
national legislation. The NA is the more prominent and powerful of the two
Houses because it is directly elected and because it elects and can also
dismiss the President and the other members of the executive. The NA
therefore has more power to hold the executive accountable than the NCOP.
Members of Parliament (MPs) enjoy important rights and privileges to
protect their ability to take part in the various functions of Parliament
without fear of legal sanction. MPs enjoy the right to freedom of expression
in Parliament and in the various committees of Parliament and are insulated
from the law of defamation.
The various committees of Parliament – especially the various portfolio
committees that focus on the work associated with a specific government
department – are seen as the engine room of Parliament. Although members
of the NA and the NCOP can ask questions of members of the Executive
and have a right to have their questions answered, either orally in each of
the Houses or in written form, portfolio committees can call members of the
executive and departmental officials to testify before them to oversee the
work of the individual departments and to hold the members of the
executive accountable.
Legislation is normally formulated by the relevant government
department on the initiative of the Minister involved and then submitted to
Parliament for consideration. MPs can also formulate Bills, but in the past
this seldom happened. Even where members of opposition parties formulate
and table Bills, such Bills have only a small chance of being adopted by
Parliament because the majority party in Parliament will normally only
support legislation in accordance with its own programme and policies.
Without support from the majority party, Bills cannot be passed.
Once legislation is tabled in Parliament (after being approved by the
Cabinet), discussions on the details of such Bills tabled in Parliament occur
in portfolio committees who have the power to amend the draft legislation
before it is sent to the NA and the NCOP for approval. During this process,
members of the public have an important right to participate in the law-
making process and can make written and sometimes oral submissions to
the various portfolio committees about draft legislation.
Arguably, the most important power of Parliament is the power to pass
legislation. Bills must be tagged by a Joint Tagging Mechanism to
determine how Parliament will procedurally deal with the passing of the
draft legislation. Once portfolio committees have processed Bills, each of
the Houses of Parliament must consider and vote on a Bill. The Constitution
prescribes different procedures to be followed for the passing of Bills that
have been tagged as section 74, 75, 76 and 77 Bills. The Constitution also
requires that Bills amending the Constitution can only be passed by
enhanced majorities. Once both Houses of Parliament have passed the same
version of a Bill, it is sent to the President for signature. The President can
refer a Bill back to Parliament if he or she has reservations about the
constitutionality of aspects of the Bill. If the reservations are not dealt with,
the President can also refer the Bill to the Constitutional Court to determine
whether the reservations about the constitutionality of the Bill are valid or
not.
1 Ss 55 and 68 read with Schedules 4 and 5 of the Constitution.
2 See s 42(1) of the Constitution.
3 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 133.
4 Rautenbach, IM and Malherbe, EFJ (2009) Constitutional Law 5th ed 122.
5 Currie and De Waal (2001) 133. See generally Ackerman, B (2000) The new separation of
powers Harvard Law Review 113(3):633–729 at 682. According to Ackerman, the second
House ‘may enhance the deliberative character of political life’.
6 S 42(3) of the Constitution.
7 S 42(4) of the Constitution.
8 S 86 of the Constitution.
9 Ss 89 and 102 of the Constitution.
10 S 91(3) of the Constitution.
11 S 55(2) of the Constitution.
12 S 193(4) of the Constitution.
13 S 42(6) of the Constitution.
14 In terms of s 76(5) of the Constitution, an absolute majority of members of the NA – that is
200 or more of its members – is required to pass such legislation.
15 S 51(3) of the Constitution.
16 S 63(3) of the Constitution.
17 Currie and de Waal (2001) 131.
18 See Basson, DA and Viljoen, HP (1988) South African Constitutional Law 86–7.
19 It is true that s 1(d) of the Constitution states that the Republic of South Africa is a democratic
state founded on, inter alia, a multiparty system of government and that several other
provisions in the Constitution recognise the role of political parties in the legislative and
executive process. However, the exact relationship between the representatives of political
parties in the legislature and the executive on the one hand and the party leadership on the
other hand is never defined. S 19 guarantees for everyone the rights to form a political party; to
participate in the activities of, or recruit members for, a political party; and to campaign for a
political party or cause. S 57(2)(c) states that the rules of the NA must provide for financial and
administrative assistance to each party represented in the Assembly in proportion to its
representation to enable the party and its leader to perform their functions in the NA
effectively. S 57(2)(d) requires that the NA rules must recognise the leader of the largest
opposition party in the Assembly as the Leader of the Opposition.
20 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012).
21 Ramakatsa para 16.
22 S 46(1)(d) of the Constitution.
23 See ss 86, 89 and especially 102 of the Constitution.
24 Hiebert, JL ‘Constitutional experimentation: Rethinking how a Bill of Rights functions’ in
Ginsburg, T and Dixon, R (eds) (2011) Comparative Constitutional Law 307.
25 The disciplinary case lodged against former ANC Youth League leader, Julius Malema, and his
ultimate expulsion from the ANC illustrates the governing party’s insistence on party
discipline. See Mthembu, J (2012, 4 February) ANC statement on the National Disciplinary
Committee of appeal today available at http://www.anc.org.za/show.php?id=9363.
26 Requiring members to toe the party line on a particular vote on pain of sanction or disciplinary
proceedings is often referred to as a ‘three line whip’.
27 African National Congress Constitution, as amended and adopted at the 52nd National
Conference, Polokwane, 2007 available at http://www.anc.org.za/show.php?id=207.
28 S 25.3 of the African National Congress Constitution.
29 See Malefane, M (2012, 1 April) Turok going juju route? Sunday World available at
http://www.sundayworld.co.za/news/2012/04/01/turok-going-juju-route.
30 Friedman, S (2012, 6 August) State secrecy is the real threat to our security Business Day Live
available at http://www.businessday.co.za/articles/Content.aspx?id=128285.
31 Ss 57(1) and 70(1) of the Constitution.
32 S 45.
33 Ss 57 and 70.
34 Ss 57(2) and 70(2).
35 See generally Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly (CCT
16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October 2012)
and also Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249
(CC); 2013 (11) BCLR 1297 (CC) (27 August 2013).
36 Ss 56 and 69 of the Constitution.
37 Parliament of the Republic of South Africa (2011, June) Rules of the National Assembly 7th ed
available at http://www.pmg.org.za/files/doc/2012/NA%20Rules%207th%20edition-1.pdf.
38 NA Rule 325(1). The Rules of the National Council of Provinces 9th ed (2008, March),
available at http://www.pmg.org.za/parlinfo/ncoprules, do not contain a similar provision and
merely state in Rule 103 that:
(1) For the purposes of performing its functions a committee may, subject to the
Constitution, legislation, the other provisions of these Rules and resolutions of
the Council –
(a) summon any person to appear before it to give evidence on oath or
affirmation, or to produce documents;
(b) receive petitions, representations or submissions from interested persons
or institutions;
(c) conduct public hearings;
(d) permit oral evidence, representations and submissions;
(e) determine its own procedure;
(f) meet at a venue determined by it, which may be a venue beyond the seat
of Parliament if the Council is not in session.
39 Ss 59(1)(b) and 72(1)(b).
40 Ss 59(1)(b) and 72(1)(b) of the Constitution.
41 Ss 59(2) and 72(2) of the Constitution.
42 The Rules of the NCOP also allow for certain limitations of public access to its committees.
Rule 110(1) affirms that:
[m]eetings of committees and subcommittees are open to the public, including the
media, and the member presiding may not exclude the public, including the media,
from the meeting, except when:
(a) legislation, these Rules or resolutions of the Council provide for the committee
or subcommittee to meet in closed session; or
(b) the committee or subcommittee is considering a matter which is –
(i) of a private nature that is prejudicial to a particular person;
(ii) protected under parliamentary privilege, or for any other reason privileged
in terms of the law;
(iii) confidential in terms of legislation; or
(iv) of such a nature that its confidential treatment is for any other reason
reasonable and justifiable in an open and democratic society.
43 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 300 (per Yacoob J dissenting) speaking not about the ‘public involvement’
requirements common to ss 59, 72 and 118 of the Constitution and which were central to the
matter before the court (at least in so far as s 118 was concerned), but rather about the ‘public
access’ requirements common to the same sections.
44 Mbete, S and February, J (2011, 5 April) Access to Parliament is a right not a privilege
Business Day Live available at http://www.bdlive.co.za/articles/2011/04/05/sthembile-mbete-
and-judith-february-access-to-parliament-is-a-right-not-a-
privilege;jsessionid=8485BDB17C0C6F9F61B042C08A00C41E.present1.bdfm.
45 Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013
(11) BCLR 1297 (CC) (27 August 2013).
46 See Rautenbach and Malherbe (2009) 147.
47 Griffith, JAG and Ryle, M (1989) Parliament: Functions, Practice and Procedures 85.
48 (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August
2006).
49 Act 117 of 1998. S 28(1) of the Municipal Structures Act provides that:
[pr]ovincial legislation in terms of section 161 of the Constitution must provide at
least –
(a) that councillors have freedom of speech in a municipal council and in its
committees, subject to the relevant council’s rules and orders as envisaged in
section 160(6) of the Constitution; and
(b) that councillors are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for –
(i) anything that they have said in, produced before or submitted to the council
or any of its committees; or
(ii) anything revealed as a result of anything that they have said in, produced
before or submitted to the council or any of its committees’.
S 28(2) goes on to provide that ‘[u]ntil provincial legislation contemplated in subsection (1)
has been enacted the privileges referred to in paragraphs (a) and (b) of subsection (1) will
apply to all municipal councils in the province concerned’.
50 Dikoko para 39.
51 Hatsell, J (1818) Precedents of Proceedings in the House of Commons Vol 1 2.
52 R v Paty (Case of the Men of Aylesbury) (1704) 2 Lord Raym 1105, 91 ER 817.
53 Ss 58(1)(a) and 71(1)(a) of the Constitution. See also NA Rule 44 and NCOP Rule 30.
54 Ss 58(1)(b) and 71(1)(b) of the Constitution read with NA Rule 44(2) and NCOP Rule 30(b).
55 (297/98) [1999] ZASCA 50; [1999] 4 All SA 241 (A) (26 August 1999).
56 De Lille (SCA) paras 2–3.
57 De Lille (SCA) para 8.
58 De Lille (SCA) para 9.
59 De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C).
60 Act 91 of 1963. This Act has been repealed and replaced with the Powers, Privileges and
Immunities of Parliament and Provincial Legislatures Act 4 of 2004.
61 De Lille (HC) para 25.
62 De Lille (HC) para 33.
63 De Lille (HC) paras 37–8.
64 De Lille SCA. See also O’Regan, K (2005) Checks and balances: Reflections on the
development of the doctrine of separation of powers under the South African Constitution PER
8(1):120–50 at 132–3.
65 De Lille (SCA) para 20.
66 A similar provision regarding the NCOP can be found in s 71(2).
67 De Lille (SCA) para 17.
68 De Lille (SCA) para 29.
69 De Lille (SCA) para 29–30.
70 NA Rules 52–4.
71 Ss 59(1)(a) and 72(1)(a) of the Constitution.
72 Houston, G, Liebenberg, I and Dichaba, W ‘The social dynamics of public participation in
legislative processes in South Africa’ in Houston, G (ed) (2001) Public Participation in
Democratic Governance in South Africa 142.
73 See generally Hassen, E (1998) The Soul of a Nation: Constitution-Making in South Africa
ch 7 on the inclusive and participatory process involved in the drafting of the 1996
Constitution. The process leading up to the adoption of the 1993 Constitution can hardly be
said to have been inclusive and there was little attempt to ensure the participation of the
general public in the constitutional negotiations at CODESA. See also Du Plessis, L and
Corder, H (1994) Understanding South Africa’s Transitional Bill of Rights.
74 Report of the Independent Panel Assessment of Parliament (Govender Report) 53 available at
http://www.info.gov.za/view/DownloadFileAction?id=94365.
75 See Currie and De Waal (2001) 15 and Roux, T ‘Democracy’ in Woolman, S and Bishop, M
(eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 10.14.
76 Houston et al (2001) 142.
77 Houston et al (2001) 149.
78 Merafong Demarcation Forum and Others v President of the Republic of South Africa and
Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC)
(13 June 2008); Matatiele Municipality and Others v President of the Republic of South Africa
and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC)
(27 February 2006); Matatiele Municipality and Others v President of the Republic of South
Africa and Others (2) (CCT73/05A) [2006] ZACC 12; 2007 (1) BCLR 47 (CC) (18 August
2006).
79 A similar provision in s 118(1)(a) of the Constitution deals with the need of provincial
legislatures to facilitate public involvement in the law-making process.
80 See Doctors for Life para 209 where Ngcobo J for the majority held that ‘[t]he obligation to
facilitate public involvement is a material part of the law-making process. It is a requirement of
manner and form. Failure to comply with this obligation renders the resulting legislation
invalid’.
81 Doctors for Life para 209.
82 Doctors for Life para 115.
83 Doctors for Life para 116 and para 227 where Sachs J (concurring) stated: ‘Public involvement
in our country has ancient origins and continues to be a strongly creative characteristic of our
democracy. We have developed a rich culture of imbizo, lekgotla, bosberaad, and indaba.
Hardly a day goes by without the holding of consultations and public participation involving
all “stakeholders”, “role-players” and “interested parties”, whether in the public sector or the
private sphere. The principle of consultation and involvement has become a distinctive part of
our national ethos. It is this ethos that informs a well-defined normative constitutional structure
in terms of which the present matter falls to be decided.’
84 Doctors for Life para 122.
85 Doctors for Life para 122.
86 Doctors for Life para 125.
87 Doctors for Life para 127. See also Khosa and Others v Minister of Social Development and
Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03)
[2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 49
where the Court stated that ‘[i]n dealing with the issue of reasonableness, context is all
important’.
88 Doctors for Life para 128.
89 Doctors for Life para 129.
90 Doctors for Life para 131.
91 Doctors for Life para 278.
92 Doctors for Life para 292.
93 S 42(1). See also Devenish, GE (2005) The South African Constitution 219 and Currie and De
Waal (2001) 133.
94 S 46(1) of the Constitution.
95 S 46(1) and (2) of the Constitution.
96 Act 73 of 1998.
97 S 1(d) of the Constitution.
98 See Rautenbach and Malherbe (2009) 126. For a detailed look at electoral systems and choices,
see generally Reynolds A (1999) Electoral Systems and Democratisation in Southern Africa.
99 Currie and De Waal (2001) 134.
100 For a brief history of why proportional representation was the electoral system of choice, see
Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 156–8. In particular,
Klug notes at 158 that ‘the option of proportional representation became a means to avoid the
contentious task of immediate demarcation [into respective constituencies] and a way to
guarantee the effective participation of small parties, including those with minority ethnic or
racially based constituencies’.
101 See Rautenbach and Malherbe (2009) 127.
102 For example, the Democratic Alliance (DA) provides for a complex selection process for
members who stand for public office through an Electoral College, which is not necessarily a
representative body. See Democratic Alliance (2010) Regulations for the Nomination of
Candidates available at http://www.da.org.za/about.htm?action=view-page&category=469.
103 Ramakatsa para 73.
104 Ramakatsa para 74. S 19 of the Constitution states:
(1) Every citizen is free to make political choices, which includes the right –
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political
party; and
(c) to campaign for a political party or cause.
105 Ramakatsa para 74.
106 See generally Norris, P (1997) Choosing electoral systems: Proportional, majoritarian and
mixed systems International Political Science Review 18(3):297–312 at 302–4.
107 To gain a seat in the NA, a party has to obtain a minimum number of votes. The minimum
number of votes per seat is determined by dividing the total number of votes cast by the
number of seats plus one. The result plus one, disregarding fractions, then becomes the
minimum number of votes per seat. In the 2009 elections, the minimum numbers of votes per
seat was 44 092 votes (0,25%). An important consequence of the fact that a party had to obtain
a minimum number of votes is that the votes cast for any party that does not obtain this
minimum will be ‘wasted’. The wastage, however, is far less than in a constituency-based
system.
108 On the dangers of gerrymandering, see generally Issacharoff, S (2002) Gerrymandering and
political cartels Harvard Law Review 116(2):593–648 at 593.
109 See the data compiled by the Inter-Parliamentary Union (2013) Women in national parliaments
available at http://www.ipu.org/wmn-e/classif.htm.
110 Hendricks, C ‘Party strategy not popular prejudice: Electoral politics in South Africa’ in Piper,
L (ed) (2005) South Africa’s 2004 Election: The Quest for Democratic Consolidation, EISA
Research Report No 12, 66 at 82; Lowe Morna, C, Rama, K and Mtonga, L (2009, 15 July)
Gender in the 2009 South African elections, Gender links for equality and justice, available at
http://www.genderlinks.org.za/article/gender-in-the-2009-south-african-elections-2009-07-15.
111 De Vos, P ‘South Africa’s experience with proportional representation’ in De Ville, J and
Steytler, N (1996) Voting in 1999: Choosing an Electoral System 29–43.
112 Norris (1997) 306. See generally Matlosa, K (2004) Electoral systems, constitutionalism and
conflict management in Southern Africa African Journal on Conflict Resolution 4(2):11–53 at
34.
113 See Currie and De Waal (2001) 134.
114 Currie and De Waal (2001) 134.
115 Currie and De Waal (2001) 134.
116 Matlosa (2004) 27.
117 Matlosa (2004) 27. See also Currie and De Waal (2001) 135. Gerrymandering is a practice that
attempts to establish a political advantage for a particular party or group by manipulating
geographical boundaries to create partisan or incumbent-protected districts. See Britannica
Academic Edition available at
http://www.britannica.com/EBchecked/topic/231865/gerrymandering.
118 See De Vos, P (2012, 14 August) Towards a parliament for the people Constitutionally
Speaking available at http://constitutionallyspeaking.co.za/towards-a-parliament-for-the-
people/.
119 See s 46(1)(c).
120 S 190(1)(a)–(c) of the Constitution. See also the relevant provisions of the Electoral Act 73 of
1998 and the Local Government: Municipal Electoral Act 27 of 2000.
121 S 181(2).
122 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June
2001).
123 Langeberg Municipality para 27.
124 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999) para 98.
125 New National Party paras 99–100.
126 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
127 August paras 3 and 20.
128 August para 17.
129 August para 16.
130 New National Party para 11.
131 The changes brought about by the amendment included ss 8(2)(f), and 24B(1) and (2) which
read as follows:
8(2) The chief electoral officer may not register a person as a voter if that person–
…
(f) is serving a sentence of imprisonment without the option of a fine.
…
24B(1) In an election for the National Assembly or a provincial
legislature, a person who on election day is in prison and not
serving a sentence of imprisonment without the option of a fine
and whose name appears on the voters’ roll for another voting
district, is deemed for that election day to have been registered
by his or her name having been entered on the voters’ roll for the
voting district in which he or she is in prison.
24B(2) A person who is in prison on election day may only vote if he or
she is not serving a sentence of imprisonment without the option
of a fine.
132 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004).
133 NICRO paras 39–46.
134 NICRO paras 39–46.
135 NICRO paras 47–51.
136 NICRO para 49.
137 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009).
138 (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC)
(12 March 2009).
139 Richter para 108.
140 Richter paras 52–4.
141 AParty paras 56–8.
142 AParty para 59.
143 S 49(1) of the Constitution.
144 S 47(1)(b) of the Constitution.
145 S 47(1)(c) of the Constitution.
146 S 47(1)(d) of the Constitution.
147 S 47(1)(e) of the Constitution.
148 S 47(3)(b) of the Constitution read with NA Rule 20 which states: ‘A member who wishes to
absent himself or herself from sittings of this House, or of any other Parliamentary forum of
which he or she is a member, for 15 or more consecutive days on which this House or such
forum sits, shall, before so absenting himself or herself, obtain the leave of this House or of a
committee of this House authorised to grant such leave.’ A note states that this rule will have to
be adapted in accordance with s 47(3)(b) of the Constitution, but this has not yet been done,
leaving doubt about what consequences will follow if a person is absent for longer than
15 days without permission.
149 See s 47(3)(c) of the Constitution as amended by s 2 of the Constitution Fifteenth Amendment
Act of 2008.
150 S 49(1) of the Constitution.
151 S 49(2) of the Constitution.
152 S 50(2) read with s 49(2) of the Constitution.
153 S 51(1) of the Constitution.
154 S 86(1) and (2) of the Constitution read with NA Rule 8.
155 S 52 of the Constitution read with NA Rules 9 and 13.
156 S 51(1) of the Constitution.
157 S 51(2) of the Constitution.
158 S 51(3) of the Constitution. Sittings and recesses of the NA are covered generally in Ch 4 of
the NA Rules.
159 NA Rule 24 states: ‘Before directing under section 51(3) of the Constitution that this House
shall sit at a place other than the Houses of Parliament in Cape Town, the Speaker shall consult
the Leader of the House and the Chief Whip of each party represented in this House.’
160 In modern parliamentary systems, however, ‘legislatures have limited responsibility for making
laws. Instead, laws are usually prepared and drafted by the executive and presented to the
legislature for approval. This inevitably means that relatively few laws will emanate from the
legislature itself.’ This is true of South Africa. See Nijzink, L and Murray, C (2002) Building
Representative Democracy: South Africa’s Legislatures and the Constitution 73. See also Klug
(2010) 169.
161 S 55 of the Constitution.
162 See 4.5 below.
163 NA Rule 25(1).
164 S 53(1)(a) of the Constitution read with NA Rule 25(2)(a).
165 S 53(1)(b) of the Constitution read with NA Rule 25(2)(b).
166 NA Rule 26.
167 S 53(1)(c) of the Constitution.
168 Ss 74(2)(a) and 89(1) of the Constitution.
169 S 74(1)(a) of the Constitution.
170 S 53(2)(a) of the Constitution.
171 S 53(2)(b) of the Constitution.
172 This is confirmed by NA Rule 89(2).
173 S 55(2).
174 Currie and De Waal (2001) 142. See also Gauteng Provincial Legislature v Killian and
29 Others [562/98] [2000] ZASCA 75; 2001 (2) SA 68 (SCA); [2001] 1 All SA 463 (A) (29
Nov 2000) para 30.
175 See Killian para 26.
176 See NA Rules Ch 12.
177 NA Rule 121.
178 NA Rule 125.
179 NA Rule 126.
180 S 42(4) of the Constitution.
181 S 104 of the Constitution.
182 Extract from a presentation at the Meeting of the World’s Senates, 14 March 2000, Paris, cited
in Nijzink and Murray (2002) 41.
183 Doctors for Life para 79. See generally Murray, C and Simeon, R (1999) From paper to
practice: The National Council of Provinces after its first year SA Public Law 14(1):96–141 at
98–101 for a discussion on the role of the NCOP.
184 Murray, C and Simeon, R (2006) Tagging Bills in Parliament: Section 75 or section 76? SALJ
123(2):232–63 at 236.
185 Murray and Simeon (2006) 236.
186 Doctors for Life para 80. See also Certification of the Constitution of the Republic of South
Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253
(CC) (6 September 1996) para 227; Malherbe, EFJ (1998) The South African National Council
of Provinces: Trojan horse or white elephant? TSAR 1:77–96 at 82; Venter, F (2000)
Constitutional Comparison: Japan, Germany, Canada and South Africa as Constitutional
States 248.
187 Germany’s Basic Law was drafted in 1949 and the drafters refrained from using the term
‘constitution’ because the Basic Law was drafted to govern a part of Germany for a transitional
period that would last until reunification. On reunification, the Basic Law would cease to exist
and a constitution for all German people would be adopted. On 3 October 1990, German unity
was achieved within the framework of the Basic Law. The Basic Law is now thought of as an
all-German Constitution despite the fact that it continues to go by the name of Basic Law and
has come to ‘assume the character of a document framed to last in perpetuity’. See Kommers,
DP (1997) The Constitutional Jurisprudence of the Federal Republic of Germany 30 and
Kommers, DP ‘The Basic Law of the Federal Republic of Germany: An assessment after forty
years’ in Merkel, PH (ed) (1989) The Federal Republic of Germany at Forty 133 referring to
the Basic Law as having taken on ‘the status of a genuine Constitution’.
188 Art 50 of the Basic Law for the Federal Republic of Germany provides: ‘The Länder
participates through the Bundesrat in the legislation and administration of the Federation.’
189 Doctors for Life para 80 fn 61.
190 BVerfGE 1, 300.
191 See also De Villiers, B (1994) Intergovernmental relations: The duty to co-operate – A German
perspective SA Public Law 9(1–2):430–7 at 432–3.
192 S 60 of the Constitution.
193 Each province is represented by a single delegation appointed in terms of a formula prescribed
by the Determination of Delegates (National Council of Provinces) Act 69 of 1998 with the
aim of ensuring the inclusion of all parties represented in a provincial legislature on the basis
of proportional representation.
194 S 60(2)(a) and (b) of the Constitution.
195 S 60(2)(a) and (b) of the Constitution.
196 S 60(2)(a)(i) and (ii) of the Constitution.
197 S 60(2)(a)(i) of the Constitution.
198 S 60(3) of the Constitution.
199 S 61(4) of the Constitution.
200 S 62(2) and (4)of the Constitution.
201 Bishop, M and Raboshakga, N ‘National legislative authority’ in Woolman and Bishop (2013)
17.5.
202 S 62(4)(c) of the Constitution. In Van Zyl v New National Party and Others (2000/002) [2003]
ZAWCHC 17; [2003] 3 All SA 737 (C) (22 May 2003) para 75, the Cape High Court found
that the exercising of the authority to recall a permanent delegate to the NCOP in terms of
s 62(4)(c) of the Constitution constitutes the exercising of a public power because such a
decision has an influence on how the NCOP, the delegations of the respective provinces and
the joint committees on which delegates may serve are constituted. Such a decision may affect
the manner in which those bodies perform their functions and duties and this, in turn, may
affect the interests of the community at provincial and national levels. Accordingly, the
exercising of this authority has a strong public component.
203 Van Zyl para 90.
204 In First Certification para 328, the Constitutional Court held that in some respects the Senate
has greater power than the Council; in other respects it has less. We disagree. While the
collective power of the provinces may be enhanced by the new provisions relating to the
appointment, structure and functioning of the Council, the Senate certainly had more
constitutional power in the national legislative process than the Council.
205 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) paras 331–2.
206 S 75(2) of the Constitution.
207 S 75(1) of the Constitution.
208 S 65(2) of the Constitution. How such mandates are obtained is regulated by the Mandating
Procedures of Provinces Act 52 of 2008.
209 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996) para 62.
See also Doctors for Life para 84.
210 Doctors for Life para 84.
211 Simeon, R and Murray, C (2001) Multi-sphere governance in South Africa: An interim
assessment Publius: The Journal of Federalism 31(4):65–92 at 78.
212 Simeon and Murray (2001) 78.
213 S 66(1) of the Constitution.
214 (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June
2008).
215 See s 5 of Schedule 1 of the Mandating Procedures of Provinces Act.
216 Merafong para 50.
217 S 64(1) of the Constitution. While the Chairperson and one of the Deputy Chairpersons are
elected from the permanent delegates for a term of five years unless their terms as delegates
expire earlier (s 64(2)), the other Deputy Chairperson is elected for a term of one year and
‘must be succeeded by a delegate from another province, so that every province is represented
in turn’ (s 64(3)).
218 S 70(1) of the Constitution. This provision mirrors the provision applicable to the NA –
s 57(1).
219 S 70(2)(a) of the Constitution. S 57(2) contains identical provisions regarding the NA.
220 S 65(1) of the Constitution.
221 S 75(2) of the Constitution.
222 S 65(2) of the Constitution.
223 Act 52 of 2008.
224 S 65(1) of the Constitution.
225 Since the whole delegation has only one vote, all the delegates do not have to be present and no
quorum requirement is necessary.
226 S 75(2) of the Constitution.
227 S 70(2)(b).
228 S 70(2)(c) of the Constitution refers to s 75 Bills.
229 S 42(3) of the Constitution states that the NA is able to represent the people and ensure
democratic government by, among others, ‘providing a national forum for public consideration
of issues’. Similarly, under s 42(4), the NCOP does so by ‘providing a national forum for
public consideration of issues affecting the provinces’.
230 S 55(2)(a) read with s 92(2) of the Constitution.
231 S 55(2)(b) of the Constitution. The Constitution does not provide for similar powers for the
NCOP. However, s 92 states that members of Cabinet are accountable to Parliament, which
suggests that they are accountable to both Houses of Parliament.
232 S 42(3) read with ss 55(1) and 68 of the Constitution.
233 Currie and De Waal (2001) 159. See NA Rules 103–4 and NCOP Rules 83–5.
234 S 59(1)(b) of the Constitution for the NA and s 72(1)(b) for the NCOP. Business must be
conducted in an open manner and sittings must be held in public, but reasonable measures may
be taken to regulate public access, including access of the media, and to provide for the
searching of any person and where appropriate, the refusal of entry to, or the removal of, any
person.
235 S 59(2) of the Constitution for the NA and s 72(2) for the NCOP.
236 S 59(1)(a) of the Constitution for the NA and s 72(1)(a) for the NCOP.
237 NA Rules 58–72 determine the rules of debate.
238 NA Rule 94.
239 NA Rule 103(1).
240 NA Rule 104(1).
241 NCOP Rule 84(1) and (2).
242 S 92(2).
243 See Parliament of the Republic of South Africa (2009) Oversight and Accountability Model:
Asserting Parliament’s Oversight Role in Enhancing Democracy 2.2.1 available at
http://www.parliament.gov.za/content/Microsoft%20Word%20-%20OVAC%20Model%20-
%20edited%20Word%20version%20-
%20Replaced%20Diagrams,Chapter%20Upper%20case_27-Jan-09~1~1.pdf.
244 NA Rule 138 and NCOP Rule 103.
245 NA Rule 109 and NCOP Rules 240–4.
246 NA Rule 110 and NCOP Rules 240–4.
247 NA Rule 111 and NCOP Rules 240–4.
248 See Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC);
2013 (11) BCLR 1297 (CC) (27 August 2013).
249 (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)
(27 August 2013).
250 NA Rules 187–90.
251 Mazibuko para 10.
252 Mazibuko para 43.
253 Mazibuko para 44.
254 Mazibuko para 44.
255 Mazibuko para 44.
256 Mazibuko para 47.
257 Mazibuko para 57.
258 S 57(1)(a) of the Constitution.
259 Mazibuko para 66.
260 Mazibuko para 66.
261 S 102(2) of the Constitution.
262 See Currie and De Waal (2001) 160.
263 Kotzé, H (1997) Take Us To Our Leaders: The South African National Assembly and Its
Members 18. See also Nijzink and Murray (2002) 91 where the authors argue that despite the
important oversight functions of committees, we should not lose sight of the fact that the role
of committees has often been at the expense of plenary sessions where committee reports could
be more publicly aired and debated, the implementation of policy showcased and scrutinised,
and question time be given more of a profile.
264 Nash, A ‘Post-apartheid accountability: The transformation of a political idea’ in Chirwa, DM
and Nijzink, L (2012) Accountable Government in Africa: Perspectives from Public Law and
Political Studies 21.
265 Nash (2012) 18–20.
266 Nash (2012) 24.
267 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
268 S 55(2)(b) of the Constitution.
269 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
270 S 239 of the Constitution.
271 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
272 Kotzé (1997) 18.
273 Ss 100(1)(b) and 139(1)(b) of the Constitution respectively read with NCOP Rules 243–4.
274 S 216(3)(b) of the Constitution.
275 S 203 of the Constitution.
276 S 125(4) of the Constitution.
277 Taljaard, R (2012, 20 March) The day my idealism was extinguished The Star available at
http://www.iol.co.za/the-star/the-day-my-idealism-was-extinguished-
1.1260059#.UGxEGjkWHzI.
278 Doctors for Life para 81.
279 Doctors for Life para 82.
280 S 44(1)(a)(ii) and 44(1)(b)(ii) of the Constitution. As we shall see, in certain very limited
circumstances set out in s 44(2), Parliament may even legislate on those powers exclusively
allocated to provincial legislatures.
281 The question of how to deal with conflicts between provincial and national legislation will be
dealt with more fully in ch 5. On conflicts, see generally Bronstein, V ‘Conflicts’ in Woolman
and Bishop (2013) 16.1–16.31.
282 S 44(1)(a)(i) and 44(1)(b)(i).
283 S 44(1)(a)(iii).
284 S 55(2) read with s 73(2) of the Constitution.
285 Until the Constitutional Court handed down judgment in Oriani-Ambrosini, MP v Sisulu, MP
Speaker of the National Assembly (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013
(1) BCLR 14 (CC) (9 October 2012), the private members’ Bills were regulated by the NA
Rules 209–13 and 234–7.
286 NA Rules 238–40.
287 NA Rule 230 states: ‘(1) The Assembly initiates legislation through its committees and
members acting with the permission of the Assembly in terms of these Rules. (2) Any
committee or member of the Assembly may in terms of section 73(2) of the Constitution
introduce a Bill in the Assembly that has been initiated in terms of Subrule (1).’
288 NA Rule 234.
289 NA Rule 235A.
290 (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October
2012).
291 Oriani-Ambrosini para 43. See also South African Transport and Allied Workers Union and
Another v Garvas and Others (CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC);
[2012] 10 BLLR 959 (CC); (2012) 33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June 2012)
para 61.
292 (CCT29/02) [2002] ZACC 28; 2003 (2) BCLR 128; 2003 (2) SA 413 (CC) (12 December
2002) paras 42–3. See Oriani-Ambrosini para 47.
293 Oriani-Ambrosini para 48.
294 Oriani-Ambrosini para 48.
295 Oriani-Ambrosini para 49.
296 Oriani-Ambrosini para 57.
297 Oriani-Ambrosini para 64.
298 Oriani-Ambrosini para 64.
299 See De Vos, P (2012, 10 October) One small step for Parliament, one giant leap for Ambrosini
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/once-small-step-
for-parliament-one-giant-leap-for-ambrosini/.
300 Barkan, J (2005) Emerging legislature or rubber stamp? The South African National Assembly
after ten years of democracy Working paper No 134, Centre for Social Science Research:
Democracy in Africa Research Unit, University of Cape Town at 9–11, available at
http://www.cssr.uct.ac.za/sites/cssr.uct.ac.za/files/pubs/wp134.pdf. A version of this paper has
now been published in Barkan, JD (ed) (2009) Legislative Power in Emerging African
Democracies.
301 Barkan (2005) 6.
302 Barkan (2005) 6.
303 Barkan (2005) 7. It is unclear whether this assertion is still correct. After the ousting of
President Thabo Mbeki, power shifted from the Presidency back to the ANC leadership
collective as represented by the Secretary General of the party.
304 Barkan (2005) 10.
305 Barkan (2005) 11.
306 Barkan (2005) 13. Barken notes that Bills may be referred back to the committee for further
amendment before a formal vote, including the amendments desired by the Minister. See also
Doctors for Life para 40 where Ngcobo J pointed out that the first stage, the deliberative stage,
takes place when Parliament is deliberating on a Bill before passing it; the second stage, the
Presidential stage, occurs after the Bill has been passed by Parliament but while it is under
consideration by the President; and the third stage is the period after the President has signed
the Bill into law but before the enacted law comes into force.
307 S 79(1) of the Constitution. See also remarks by O’Regan J in Executive Council of the
Western Cape Legislature and Others v President of the Republic of South Africa and Others
(CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
para 7.
308 S 74.
309 S 75.
310 S 76.
311 S 77.
312 (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010) para 45.
313 Joint Rules of Parliament (6th edition) (2011) Rule 151.
314 Joint Rule 151.
315 Tongoane para 45.
316 Tongoane para 58.
317 Tongoane para 58. See also Ex Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1)
BCLR 1 (11 November 1999) paras 63–4; Western Cape Provincial Government and Others In
Re: DVB Behuising (Pty) Limited v North West Provincial Government and Another
(CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347; 2001 (1) SA 500 (2 March 2000) para 36;
In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, In re: Payment
of Salaries. Allowances and Other Privileges to the Ingonyama Bill of 1995 (CCT1/96,
CCT6/96) [1996] ZACC 15; 1996 (7) BCLR 903; 1996 (4) SA 653 (5 July 1996) para 19.
318 Tongoane 59–60.
319 S 40(1).
320 Tongoane para 67, quoting from s 41(1)(e) and 41(1)(h)(iv) of the Constitution.
321 S 74(1) of the Constitution.
322 S 74(2) of the Constitution.
323 S 74(3) of the Constitution.
324 S 74(8) of the Constitution.
325 Ss 73(1) and 75(1) of the Constitution.
326 S 75(1) of the Constitution.
327 See s 75(1)(a)–(d) of the Constitution.
328 S 76(3) of the Constitution. These sections are ss 65(2), 163, 182, 195(3) and (4), 196 and 197.
329 S 76(4) of the Constitution.
330 S 76(5) of the Constitution.
331 Tongoane para 56 et seq.
332 S 76(1) and (2) of the Constitution.
333 S 78(1) of the Constitution.
334 S 78(2) of the Constitution.
335 S 76(1)(d) and 76(2)(d) of the Constitution.
336 S 76(1)(e) and 76(2)(e) of the Constitution.
337 S 77(1) read with s 214 of the Constitution.
338 S 77(3).
339 Act 9 of 2009.
340 Liquor Bill para 12.
341 S 237 of the Constitution.
342 Liquor Bill para 13.
343 (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999).
344 Liquor Bill para 11.
345 Liquor Bill paras 14 to 20.
346 See O’Regan J in Executive Council of the Western Cape Legislature para 151.
347 S 80(1) of the Constitution.
348 S 80(2) of the Constitution.
349 S 80(3) of the Constitution.
350 Annual Report of Parliament 1999 and 2000, available at
http://www.pmg.org.za/minutes/20011018-sita-annual-report-19992000-briefing.
351 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
para 51.
352 Executive Council of the Western Cape Legislature para 51. See also AAA Investments
(Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006]
ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006) paras 49, 93 and
122–3; Constitutionality of the Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC
10; 2002 (1) SA 447 (CC); 2001 (11) BCLR 1126 (5 October 2001) para 19; Executive Council
of the Province of the Western Cape v Minister for Provincial Affairs and Constitutional
Development and Another, Executive Council of KwaZulu-Natal v President of the Republic of
South Africa and Others (CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12)
BCLR 1360 (15 October 1999) paras 123–4.
353 Executive Council of the Western Cape Legislature para 51.
354 (CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360
(15 October 1999) para 125.
355 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011) para 61.
356 Executive Council of the Western Cape Legislature para 51. See also Justice Alliance para 51.
357 Justice Alliance para 55.
358 Justice Alliance para 55.
359 See Executive Council of the Western Cape Legislature para 43.
360 See Hoexter, C (2007) Administrative Law in South Africa 50.
361 Act 209 of 1993.
362 Executive Council of the Western Cape Legislature para 51.
363 Executive Council of the Western Cape Legislature paras 106–13.
364 This basic principle was confirmed in a separate judgment in the same case by Mahommed DP
(Executive Council of the Western Cape Legislature para 136), but for slightly different – more
substantive – reasons. Mahommed said these things cannot be determined in the abstract but
depend, inter alia, on ‘the constitutional instrument in question, the powers of the legislature in
terms of that instrument, the nature and ambit of the purported delegation, the subject-matter to
which it relates, the degree of delegation, the control and supervision retained or exercisable by
the delegator over the delegatee, the circumstances prevailing at the time when the delegation
is made and when it is expected to be exercised, the identity of the delegatee and practical
necessities generally’.
365 Act 47 of 2001.
366 Justice Alliance para 55.
367 Justice Alliance para 56.
368 Justice Alliance para 77.
369 S 211(1).
370 S 212(2)(a).
371 Act 22 of 2009.
372 S 2 of the NHTLA.
373 S 3(1) and 3(2) of the NHTLA.
374 S 3(4) of the NHTLA.
375 S 1(d) of the Constitution.
376 Act 41 of 2003.
377 S 18(1)(a) of the TLGFA.
378 S 18(2) of the TLGFA read with s 12(2)(a) of the NHTLA.
379 S 11(2)(b) of the NHTLA.
380 S 11(2)(e) of the NHTLA.
381 S 11(1)(a) of the NHTLA.
Separation of powers and the
national executive
5.1 Introduction
5.2 The President
5.2.1 Election and term of office
5.2.2 The President as Head of State and as head of the
executive
5.2.3 The limits on the exercise of presidential power
5.3 The Deputy President and the rest of the Cabinet
5.3.1 Appointment and removal
5.3.2 Powers of the Deputy President and the Cabinet
Summary
5.1 Introduction
Figure 5.1 Separation of powers and the national executive
While Parliament is responsible for passing legislation and overseeing the
exercise of national executive authority, the national executive is
responsible for the day-to-day running of the country. The national
executive consists of the President, the Deputy President and the members
of the Cabinet. Parliament is made up of members of every political party
which received enough votes in a general election to win at least one seat in
the National Assembly (NA). The national executive, however, is usually
made up only of the members – usually the leaders – of the majority party
in the NA (or where no party has obtained a majority, the members of a
coalition of parties).
It is important to distinguish between the executive, the public
administration, public service and the state. When we refer to the executive,
we mean the members who form the government of the day. A government
is formed by the majority party (or parties who form a majority coalition 1)
in the NA for the limited duration of the life of the NA. This means
governments come and go while the public administration, public service
and the state – with all its permanent employees – stay the same even when
the governing party loses an election and is replaced by another party. As
the electoral fortunes of political parties wax and wane, they may find
themselves either in government or in opposition. Although one political
party can remain in government for many years because it remains popular
and keeps winning elections, as has been the case with the ANC in
democratic South Africa, that political party and the government it leads
should not be conflated or confused with the public administration, public
service and the state.
The public administration consists of the officials who do the core of
the government’s work and who implement the political decisions taken by
the members of the executive.2 These include all the employees of
government departments, as well as the employees of other organs of state.
A slightly narrower group is the members of the public service who are
those persons who work for the national and provincial government
departments.3
The government or the executive must also be distinguished from the
state. The state is usually viewed as an organised political community
occupying a certain territory and whose members live under the authority of
a constitution. The state is therefore a far broader concept than the
government: it does not change except in the case of a revolution in which
the state itself is overthrown and replaced with a new constitutional order or
other set of governing rules, or in which the state is recreated within new
geographical boundaries, or both. Even when the governing party is
defeated at an election and a new government is formed, the state remains
the same.
In this chapter we discuss the executive authority at the national level.
The executive authority is also exercised at provincial and local levels of
government. At provincial level these structures largely mirror those at the
national level: provincial executives consist of the Premier and the
Members of the Executive Council (MECs). In chapter 8 we will refer to
these institutions with reference to the relationship between the three
spheres of government. It is, however, important to note that the discussion
in this chapter focuses on the executive at the national level only.
The discussion in this chapter occurs against the larger canvas of the
separation of powers doctrine and the system of checks and balances in
this doctrine. When discussing the appointment and possible dismissal of
the President, it must be understood as a mechanism to give effect to the
system of checks and balances in the separation of powers system. The
discussion of the exercise of powers by members of the national executive
must also be considered with reference to the powers of the NA (discussed
in chapter 4) to hold the members of the national executive accountable. It
is therefore impossible to study the appointment, powers and the limits
placed on the exercise of powers by members of the national executive
without having regard to the powers and functions of Parliament. Neither is
it possible to understand the way in which the executive’s exercise of power
is constrained without having regard to the role of the judiciary (discussed
in chapter 6).
CRITICAL THINKING
Because the President fulfils a vital role in running the country as the Head
of State and head of the executive, it is important that there should never be
a vacancy in this position. Another office-bearer will act as President when:
• the President is absent from the Republic
• when the President is otherwise unable to fulfil the duties of President,
for example due to illness
• there is a vacancy in the office of President that arises when the
President resigns or dies while in office, a motion of no confidence is
passed in the President or the President is removed from office.
The Deputy President will ordinarily fill this temporary vacancy but if he or
she is unavailable, the following office-bearers will act as President in the
following order:
• a Minister designated by the President, but if the President has not
designated such a person
• a Minister designated by the other members of the Cabinet, but if the
Cabinet has not designated such a person
• the Speaker of the NA until the NA designates one of its other members
as acting President.15
This means that if the President falls ill, passes away or resigns, the Deputy
President will usually act as President until a new President is elected or
until the President can resume his or her duties. However, if the Deputy
President is also unavailable because he or she has resigned or has also
passed away, somebody else, in the order listed above, will be appointed as
acting President to ensure that there is no power vacuum at the top of the
executive.
An Acting President has all the responsibilities, powers and functions of
the President.16 Before assuming the responsibilities, powers and functions
of the President, the Acting President must swear or affirm faithfulness to
the Republic and obedience to the Constitution in accordance with the oath
of office contained in Schedule 2 of the Constitution.17 A person who as
Acting President has sworn or affirmed faithfulness to the Republic need
not repeat the swearing or affirming procedure for any subsequent term as
Acting President during the period ending when the person next elected
President assumes office.18
CRITICAL THINKING
CRITICAL THINKING
The national Parliament is relatively weak due to the effects of the electoral
system and strict party discipline. In addition, the President has so far
always been the leader of the dominant party in Parliament. Given these
facts, it was inevitable that the powers of the President and the executive
would increase as they are mandated to give effect to the policies and
programmes of the political party elected by the vast majority of South
Africans to lead the country. However, given these practical political
realities, it is important to focus on the constitutionally imposed limits of
the powers of the President and his or her executive. As the powers of the
Office of the President increase and as the electoral dominance of the
majority party is extended, it is inevitable that the courts will be required to
intervene and to check the exercise of power of the President and other
members of the executive where they overstep their constitutionally granted
authority.
CRITICAL THINKING
CRITICAL THINKING
SUMMARY
The national executive comprises the President, the Deputy President and
the members of the Cabinet. The President is elected by the NA and the
President and his or her Cabinet must retain the confidence of the majority
of members of the NA to ensure the continued functioning of the
government. The President acts as Head of State and as head of the
executive, and in the latter case must act with the responsible member of
Cabinet who must countersign decisions relating to his or her portfolio.
When the NA passes a vote of no confidence in the President in terms of
section 102 of the Constitution, the President and his or her Cabinet must
resign. The President can also be impeached by the NA in terms of
section 89 of the Constitution for serious violations of the Constitution, for
serious misconduct or for reasons of incapacity. In theory, this means the
NA is more powerful than the President and his or her Cabinet as it elects
the President and can also dismiss the President. However, because the
President and his or her Cabinet are usually the leaders of the majority party
and control the party, it would only be in exceptional cases where the NA
would be able to assert its power over the executive branch of government.
Members of the Cabinet can, however, be held accountable by the NA.
The exercise of powers by either the President or other members of the
Cabinet is constrained. Because of the supremacy of the Constitution, the
exercise of power by the President and the Cabinet must always be
authorised by and conform to the requirements of the Constitution and
ordinary legislation. This means that the power of the President and the
Cabinet can be checked by the judiciary. The constraints on the executive
when exercising power are several fold: they are required to exercise the
powers personally and in accordance with the formal requirements set out
by the Constitution; the exercise of the powers must not infringe any
provision of the Bill of Rights; the exercise of the powers is also clearly
constrained by the principle of legality which requires a rational exercise of
power. As is implicit in the Constitution, this means the members of the
executive must act in good faith and must not misconstrue their powers.
The President has the power to appoint and also to dismiss members of
his or her Cabinet. The President also assigns tasks to members of his or her
Cabinet. This power to compose the Cabinet and to determine its functions
is constrained by larger political considerations. A dominant political party
with a tradition of collective leadership will require the President to consult
with the party leadership before making these decisions.
Members of the Cabinet are individually and collectively accountable to
Parliament. While robust debate may occur within the Cabinet, once a
decision is taken by Cabinet all members of the Cabinet are expected to
support the decision regardless of whether they agree with the decision.
Members of the Cabinet are both accountable to the President, who
appoints and dismisses them, and to the NA which elects the President and
can, in exceptional circumstances, also adopt a motion of no confidence in
individual members of the Cabinet to force the President to reconstitute his
or her Cabinet.
1 A coalition is formed if no party obtains at least 50% of the seats in the NA. Two or more
parties who together have more than 50% of the seats in the NA will then agree to work
together and form a government, based on agreed policies and principles.
2 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others (SARFU II) (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725
(4 June 1999) para 138.
3 S 197(1) of the Constitution states: ‘Within the public administration there is a public service
for the Republic.’ See also s 1 of the Public Service Act 103 of 1994 read with s 8 and Currie, I
and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1 Constitutional
Law 229.
4 S 86(1) of the Constitution.
5 S 86(3) of the Constitution.
6 Section 87 of the Constitution. This means that the South African President will be elected to
the NA, will take his or her seat, but will only remain a member of the NA for a few hours until
such time as he or she is elected President, after which he or she ceases to be a member of the
NA.
7 See s 88(2) of the Constitution.
8 For example, in terms of Rule 12.3 of the Constitution of the African National Congress
(ANC), its national conference – held every five years – elects the President, the Deputy
President, National Chairperson, the Secretary General, Deputy Secretary General, the
Treasurer General and the remaining 80 additional members of the National Executive
Committee (NEC) of the party. The NEC, as a whole, must consist of not less than 50%
women. See African National Congress Constitution as amended and adopted at the 53nd
National Conference, Mangaung, 2012, available at http://www.anc.org.za/show.php?
id=10177.
9 S 89(1) of the Constitution.
10 S 89(2) of the Constitution.
11 The South African system is not a pure system of parliamentary government as the President is
both Head of State and head of the executive, the President ceases to be a member of the NA
once elected and, as we shall see, two members of Cabinet can be appointed from outside the
NA. Nevertheless, as far as the constitutional structure is concerned, the South African system
is essentially parliamentary in nature and not presidential in nature as the President is not
directly elected by the people. See also Murray, C and Stacey, R ‘The President and the
national executive’ in Woolman, S and Bishop, M (2013) Constitutional Law of South Africa
2nd ed rev service 5 18.3.
12 (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)
(27 August 2013).
13 S 47(3)(c).
14 Chikane, F (2012) Eight Days in September: The Removal of Thabo Mbeki 17–18.
15 S 90(1) of the Constitution.
16 S 90(2) of the Constitution.
17 S 90(3) of the Constitution.
18 S 90(4) of the Constitution.
19 See s 83(a) of the Constitution.
20 President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4;
1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 14.
21 See s 85(2) of the Constitution, which states, ‘The President exercises the executive authority,
together with the other members of the Cabinet, … ’, read with s 101(2): ‘A written decision
by the President must be countersigned by another Cabinet member if that decision concerns a
function assigned to that other Cabinet member’. See also President of the Republic of South
Africa and Others v South African Rugby Football Union and Others (SARFU III) (CCT16/98)
[1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999) para 38; and
Hugo para 14.
22 See generally Baxter, L (1984) Administrative Law 434–4. See also Hofmeyr v Minister of
Justice and Another 1992 (3) SA 108 (C) at 117 F–G.
23 SARFU III para 40: ‘There can be no doubt that when the Constitution vests the power to
appoint commissions of inquiry in the President, the President may not delegate that authority
to a third party. The President himself must exercise the power. Any delegation to a third party
would be invalid.’
24 SARFU III para 40:‘cases where a functionary vested with a power does not of his or her own
accord decide to exercise the power, but does so on the instructions of another’.
25 SARFU III para 40: ‘“passing the buck” contemplates a situation in which the functionary may
refer the decision to someone else’.
26 SARFU III para 41.
27 SARFU III para 65.
28 Currie and De Waal (2001) 237.
29 For a discussion on prerogative powers and how these were replaced by enumerated powers by
South Africa’s democratic Constitution, see Hugo paras 5–10.
30 S 79(1) of the Constitution.
31 Joint Rules of Parliament 203(2).
32 For a case where the President referred a Bill back to the NA, see Ex Parte President of the
Republic of South Africa: In re Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC
15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999).
33 S 91(2) of the Constitution.
34 S 91(4) of the Constitution.
35 S 179(1)(a) of the Constitution.
36 S 202(1) of the Constitution.
37 S 207(1) of the Constitution.
38 S 209(2) of the Constitution.
39 Allen, J (2005, 14 June) South Africa: President Mbeki relieves Deputy President Zuma of post
AllAfrica available at http://allafrica.com/stories/200506140114.html.
40 See Hartley, R (2008, 23 September) The five big mistakes that cost Mbeki the Presidency
TimesLive available at http://blogs.timeslive.co.za/hartley/2008/09/23/the-five-big-mistakes-
that-cost-mbeki-the-presidency/.
41 Report of the Presidential Review Commission on the Reform and Transformation of the
Public Service in South Africa, Pretoria (1998) para 1.3 available at
http://www.info.gov.za/otherdocs/1998/prc98/index.html. See also Klug, H (2010) The
Constitution of South Africa: A Contextual Analysis 201.
42 Report of the Presidential Review Commission (1998) para 7.2.1.4.
43 Chothia, F and Jacobs, S ‘Remaking the Presidency: The tension between co-ordination and
centralisation’ in Jacobs, S and Calland, R (eds) (2002) Thabo Mbeki’s World: The Politics and
Ideology of the South African President 150.
44 Klug (2010) 203.
45 See generally Calland, R (2013) The Zuma Years: South Africa’s Changing Face of Power for a
discussion of the way in which the Office of the Presidency has operated during President
Jacob Zuma’s tenure.
46 Calland (2013) 50.
47 Friedman, S (2012, 6 August) Secrecy Bill Business Day Live available at
http://www.bdlive.co.za/articles/2011/11/22/steven-friedman-secrecy-bill.
48 S 174(6) of the Constitution which states: ‘The President must appoint the judges of all other
courts on the advice of the Judicial Service Commission.’
49 S 193(4) of the Constitution.
50 Act 32 of 1998.
51 S 174(3) of the Constitution.
52 S 174(3) of the Constitution.
53 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) paras 14–26.
54 S 101(1) of the Constitution.
55 S 101(2) of the Constitution.
56 Currie and De Waal (2001) 241.
57 Hugo para 10.
58 SARFU III para 148. Even with regard to the interim Constitution, which did not contain an
explicit provision about the rule of law, the Constitutional Court found in Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October
1998) paras 56–9 that the doctrine of legality, an incidence of the rule of law, was an implied
provision of the interim Constitution. The Court stated at para 58, ‘It seems central to the
conception of our constitutional order that the legislature and executive in every sphere are
constrained by the principle that they may exercise no power and perform no function beyond
that conferred upon them by law. At least in this sense, then, the principle of legality is implied
within the terms of the interim Constitution.’
59 Hugo para 10.
60 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 15. The
Court referred to judgments by the Bavarian and Hessen Constitutional Courts to support this
claim. See BayVerfGHE NF 18 140 (1965) at 147; HessStGH NJW 1974, 791 at 793.
61 Hugo para 28.
62 Hugo para 29.
63 S 91(2) of the Constitution.
64 (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007).
65 Masetlha para 77.
66 Masetlha para 77.
67 (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998)
para 41.
68 Masetlha para 77.
69 The actions of the President may also be found to infringe a constitutional right given effect to
in legislation. In President of the Republic of South Africa and Others v M & G Media Ltd
(CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November
2011), for example, the Constitutional Court had to decide whether the refusal by the President
to hand over a Report commissioned by the President to the Mail & Guardian newspaper
contravened the provisions of the Promotion of Access to Information Act 2 of 2000 which
gives effect to s 32 of the Constitution.
70 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
71 SARFU III paras 146–8.
72 See Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09)
[2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC)
(23 February 2010).
73 Masetlha para 68.
74 Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom
Under Law v President of Republic of South Africa and Others, Centre for Applied Legal
Studies and Another v President of Republic of South Africa and Others (CCT 53/11, CCT
54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC)
(29 July 2011) para 54. See also Executive Council of the Province of the Western Cape v
Minister for Provincial Affairs and Constitutional Development and Another, Executive
Council of KwaZulu-Natal v President of the Republic of South Africa and Others
(CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360
(15 October 1999) para 54.
75 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
para 62.
76 Executive Council of the Western Cape Legislature para 62.
77 Executive Council of the Western Cape Legislature para 62. In a separate judgment in this case,
Mahommed J confirmed this principle, but for slightly different – more substantive – reasons.
Mahommed said at para 136 that these issues cannot be determined in the abstract but depend
‘inter-alia on the constitutional instrument in question, the powers of the legislature in terms of
that instrument, the nature and ambit of the purported delegation, the subject-matter to which it
relates, the degree of delegation, the control and supervision retained or exercisable by the
delegator over the delegatee, the circumstances prevailing at the time when the delegation is
made and when it is expected to be exercised, the identity of the delegatee and practical
necessities generally’.
78 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011).
79 Act 47 of 2001.
80 Justice Alliance paras 65–8.
81 See Hugo para 29. See also SARFU III para 148; Fedsure Life paras 56–8; Masetlha para 23;
Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009]
ZACC 25; 2010 (1) SACR 325 (CC); 2010 (2) BCLR 140 (CC); 2010 (4) SA 82 (CC)
(30 September 2009) para 30; Albutt para 49; Democratic Alliance para 31.
82 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1; 2000 (2)
SA 674; 2000 (3) BCLR 241 (25 February 2000) para 90; Kruger v President of the Republic
of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3)
BCLR 268 (CC) (2 October 2008) para 99.
83 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT
27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004)
para 44.
84 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5)
BCLR 391 (CC) (23 February 2010) para 51. See also Democratic Alliance para 30.
85 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC)
(5 October 2012) para 32.
86 Democratic Alliance para 90. See also Prinsloo v Van der Linde and Another (CCT4/96)
[1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997) para 25;
Pharmaceutical Manufacturers para 90.
87 See Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04)
[2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 49;
Pharmaceutical Manufacturers para 20; SARFU III para 38; Fedsure Life para 32.
88 Albutt para 49.
89 Albutt para 71.
90 Democratic Alliance para 89.
91 Du Plessis, M and Scott, S (2013) The variable standard of rationality review: Suggestions for
improved legality jurisprudence’ South African Law Journal 130(3):597–620 at 597.
92 Du Plessis and Scott (2013) 598.
93 Du Plessis and Scott (2013) 608–9 (footnotes omitted).
94 Du Plessis and Scott (2013) 610.
95 Du Plessis and Scott (2013) 617–8.
96 (CCT22/01) [2001] ZACC 3; 2001 (11) BCLR 1168; 2002 (1) SA 33 (CC) (8 October 2001).
97 Liebenberg para 15. See also Von Abo v President of the Republic of South Africa (CCT 67/08)
[2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) (5 June 2009) para 45.
98 (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) (5 June
2009) para 45.
99 SARFU III para 240.
100 SARFU III para 242.
101 SARFU III para 243.
102 S 91(1) of the Constitution.
103 S 91(2) of the Constitution.
104 S 91(3)(a) of the Constitution.
105 S 91(3)(b) and (c) of the Constitution.
106 Currie and De Waal (2001) 254.
107 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 108.
108 First Certification para 109.
109 S 91(2) of the Constitution.
110 S 102 of the Constitution.
111 Masetlha para 228, where Sachs stated: ‘This suggests a qualitative distinction based on the
fact that the three are not purely political appointees placed in positions of governmental
leadership. Rather, they are important public officials with one foot in government and one in
the public administration. Members of Cabinet know that they are hired and can be fired at the
will of the President; and if fired, they can mobilise politically, go to the press, even
demonstrate outside Parliament, and hope to muster support for themselves at the next
congress of their party.’
112 Masetlha para 228.
113 See also Currie and De Waal (2001) 254 and Mphele v Government of the Republic of South
Africa 1996 (7) BCLR 921 (CK) 954E.
114 S 91(2) of the Constitution.
115 S 91(5) of the Constitution.
116 See Devenish, GE (1998) A Commentary on the South African Constitution 158. When
President Thabo Mbeki served as Deputy President in the Cabinet of President Nelson Mandela
he was widely regarded as playing the role of Prime Minister. See generally Gumede, WM
(2008) Thabo Mbeki and the Battle for the Soul of the ANC 33–62.
117 S 91(2) of the Constitution.
118 S 92(1) and 92(2) of the Constitution.
119 This is the necessary implication of s 92(2) which states that members of the Cabinet are
collectively responsible to Parliament.
120 See Magidimisi v Premier of the Eastern Cape and Others (2180/04, ECJ031/06) [2006]
ZAECHC 20 (25 April 2006) paras 20–1:
The first respondent is the Premier of the province. The Constitution vests her with
the ultimate executive authority of the province. The Premier and the Members of
the Executive Council are responsible for the implementation of legislation in the
province and for the performance of all other constitutional and statutory executive
functions of the province. The Premier has taken an oath of office to ‘obey, respect
and uphold the Constitution and all other law of the Republic’. This includes the
duties to uphold the rule of law… . As the ultimate executive authority in the
province the Premier thus bears the ultimate responsibility to ensure that the
provincial government honours and obeys all judgments of the courts against it.
The second respondent, the Member of the Executive Council for Finance, bears
the same general constitutional duties as those of the Premier, except that he does
not bear the ultimate executive authority of the Premier. In addition, however, he
bears responsibility for decisions of the provincial treasury. This would include
decisions relating to the payment of judgments against the province for the
payment of money.
121 S 92(2) of the Constitution.
122 S 96(3) of the Constitution.
123 SARFU II para 41. See also Murray and Stacey (2013) 18.32.
124 S 85(2) states: ‘The President exercises the executive authority, together with the other
members of the Cabinet …’
125 See Murray and Stacey (2013) 18.32. They point out that this aspect requires confidentiality
from members of the Cabinet and Cabinet members are usually not allowed to divulge
information about debates within Cabinet. Although this rule is not encoded in the
Constitution, it has been respected since the advent of the interim Constitution in 1994. The
need for confidentiality has also been accepted by the Constitutional Court in SARFU III
para 243.
126 See Rautenbach, IM and Malherbe, EFJ (2009) Constitutional Law 193.
127 Rautenbach and Malherbe (2009) 193.
128 See also Mafunisa, MJ (2008) The role of codes of conduct in promoting ethical conduct in the
South African public service South African Journal of Labour Relations 32(1):81–92.
129 See also the Code of Conduct for Assembly and Permanent Council Members available at
http://www.parliament.gov.za/live/content.php?Item_ID=235.
130 S 96(2) of the Constitution.
131 S 91(5).
Separation of powers and judicial
authority
166 161 3 2 0
Before 1994, the Appellate Division of the Supreme Court (since renamed
the Supreme Court of Appeal), with its seat in Bloemfontein, was the
highest court in South Africa for all matters. The Appellate Division
considered appeals from the various Provincial Divisions of the Supreme
Court (since renamed High Courts), which had their seats in the main urban
centres across South Africa. The Supreme Court (including the Appellate
Division), together with a small number of other specialised courts created
by legislation,34 made up the superior courts.35 The lower courts consisted
primarily of the magistrates’ courts which were divided into regional and
district courts.
In 1927, a separate system of courts was also created for people
classified as ‘Africans’ to interpret and enforce customary law.36 This
traditional judicial system, which was designed to deal with customary law
through the institution of traditional leadership, was also subject to the
control of first the Union government and then the apartheid government.
The institution was controlled by native commissioners who included
traditional leaders. They became state functionaries, exercising authority
and constituting courts, no longer under the mandate of the people, but that
of the government of the day.37 Even though the traditional system of
justice had elements of a democratic culture because of its consensual
decision making, its values were fundamentally eroded by its
transformation by colonial and apartheid rule.
CRITICAL THINKING
CRITICAL THINKING
6.3.1 Introduction
South Africa’s transition to an open and democratic society with a supreme
Constitution relied heavily on the establishment of an independent and
impartial judiciary. In the new system, the role of the judiciary was
dramatically expanded to ensure the protection of fundamental rights and to
ensure that government (as well as private institutions) remained within the
bounds of the law and honoured the constitutional commitment to openness
and democracy. Given the manner in which the judiciary was tainted during
apartheid, it may be surprising that this institution was entrusted with such a
crucial role in the transition to democracy, especially given the fact that in
terms of the political settlement, it was the only branch that remained
largely unchanged in the new democratic era.134 As we have pointed out,
when the new Constitution came into effect, the judiciary was still largely
dominated by white men and tainted by its role in the interpretation and
implementation of apartheid legislation.135
Despite this history, when South Africa became a democracy, no judges
were relieved of their duties and the courts did not only retain their powers,
but were given extended powers far exceeding those they had enjoyed
under apartheid. The only change came in the form of the addition of the
Constitutional Court to the existing court structure and changes to the
manner in which judges are appointed. While the other courts and the
judges who staffed these courts remained in place, the interim Constitution
provided for the creation of a separate Constitutional Court to act as the
final arbiter of all constitutional matters.
Against this background, the creation of the Constitutional Court is a
significant development in South Africa’s transition, representing a first
step on the journey of transforming the legal system as a whole. It is
difficult to imagine that the judiciary would have been awarded such an
important role in the transition if a new Constitutional Court had not been
put in place. It is also difficult to imagine that the judiciary would have
been entrusted with the enforcement of a supreme Constitution in the
absence of a newly created Constitutional Court. The decision to create the
Constitutional Court was therefore partly a pragmatic political move and
partly a principled move aimed at increasing the legitimacy of the judiciary.
As the highest Court on constitutional matters and now also on other
matters of legal doctrine, it was important that the Court be seen to be
impartial and independent and not tainted by South Africa’s apartheid past.
Given the fact that the Court would also act as the ultimate guardian of the
impartiality and independence of all other courts,136 its creation could
therefore be said to be the first step in restoring the independence of the
South African judiciary. It also allowed the retention of the court structure
and made it easier for the drafters of the interim and 1996 Constitutions to
safeguard the tenure of judges appointed by the apartheid government
before 1994.
CRITICAL THINKING
Judges may not always be able to be impartial (in the sense of being able to
make decisions without taking into account factors that are legally
irrelevant) and may not be able to act without fear or favour if the
conditions under which the judicial function is exercised do not allow for
this and if the judiciary is not created as an independent institution that
functions separately from the other branches of government. Judges will
only be able to rule impartially and to be truly independent (from pressure
of both the state and private actors) if they are able to operate independently
from the other branches of government. They must be free from potential
direct and indirect pressures that could sway individual judges trying to act
in as impartial a manner as is humanly possible.
Structural safeguards must therefore be put in place to ensure that judges
are protected from the influence of and interference by other branches of
government (as well as from private business interests).154 This
requirement for structural safeguards to guarantee the impartiality and
independence of judges places an emphasis on the functional independence
of the judiciary within the larger political system and its functional
relationship with the other branches of government in South Africa. This
second aspect of independence relates to:
the degree to which the judicial institution has a distinct
and discrete role … detached from the interests of the
political system, the concerns of powerful social groups
or the desires of the general public … to regulate the
legality of state acts, enact justice and determine general
and constitutional and legal values.155
This means that judicial independence is not meaningful if judges cannot
exercise their judicial powers to check the arbitrary or unjust exercise of
power by political and social actors in society. The courts (and the judges
who staff the courts) must not be constrained by fear or by practical
difficulties from carrying out the ideal judicial role. This implies that
structures must be put in place to ensure that judges are insulated from
political and financial pressures and incentives.156 This fact was endorsed
by Chaskalson CJ in Van Rooyen where he argued that:
the constitutional protection of the core values of judicial
independence accorded to all courts by the South
African Constitution means that all courts are entitled to
and have the basic protection that is required … implicit
in this is recognition of the fact that the courts and their
structure, with the hierarchical differences between
higher courts and lower courts which then existed, are
considered by the Constitution to be independent … that
involves an independence in the relationship between the
courts and other arms of government.157
To determine whether courts enjoy sufficient structural independence,
several factors must be explored. We do so here with reference to the
superior courts. As we have seen, magistrates do not exercise constitutional
jurisdiction, which means we will leave aside the position of magistrates’
courts.
There is some disagreement about the exact manner in which section 174(2)
of the Constitution should be interpreted. Should considerations of racial
and gender representation trump any other considerations for appointment
as set out above, or should race and gender be important, but not always
decisive, factors in making decisions about judicial appointments? It
appears that from time to time the JSC commences its enquiry by an
examination of the racial and gender composition of the particular court and
the importance of the appointment in so far as the racial composition is
concerned. In such cases, representativity then becomes the key determinant
for an appointment.192 Whether this approach is correct is vigorously
debated in South Africa.193 Given our apartheid history, it is difficult to
argue against an appointment policy that would strive for a bench that is
composed primarily of judges of African descent. However, this needs to be
done without frustrating non-racialism and without perpetuating apartheid’s
offensive racial practices.194 The appointment policy also needs to ensure
the appointment of judges fully committed to the values enshrined in the
Constitution. How to strike this balance without impeding the rapid
transformation of the judiciary remains a vexing question.
The selection of judges by the JSC is subject to judicial review. The JSC
is a body created by the Constitution. As such, the JSC exercises public
power and is hence controlled by what is prescribed in the Constitution and
the law. In the case of Judicial Service Commission and Another v Cape
Bar Council and Another,195 the SCA affirmed that the decisions of the
JSC – including decisions about the appointment or non-appointment of
judges – could be reviewed by a court, based on the principle of legality and
rationality.196
The judgment sets out the manner in which the members of the JSC
ought to – but do not always – arrive at decisions about the appointment of
judges. Apart from the requirement that the JSC can only make a valid
decision if it is properly constituted,197 the SCA also found that the JSC
was obliged to provide reasons for a decision not to appoint a candidate. As
the JSC is under a constitutional duty to exercise its powers in a way that is
not irrational or arbitrary, and as the JSC is an organ of state, it is bound to
the values of transparency and accountability. Without giving reasons, it
would not be possible for the JSC to be held accountable and to act in a
transparent manner.198 The JSC is, therefore, as a general rule, obliged to
give reasons for its decision not to recommend a particular candidate if
properly called on to do so. Such reasons may not be restricted to a
statement that the unsuccessful candidate failed to secure enough votes as
this would amount to no reason at all.199 However, the JSC is not under an
obligation to give reasons under all circumstances for each and every one of
the myriad potential decisions it has to take. It is, however, as a matter of
general principle, obliged to give reasons for its decision not to appoint a
candidate.
CRITICAL THINKING
In this regard, many express the view that being black, or being a
woman, constitutes a valid criterion for judicial selection. This
approach is misleading because the criteria for judicial selection
are that a person be appropriately qualified and a fit and proper
person. If a person is not appropriately qualified and is not a fit and
proper person, it is irrelevant whether they are black or female.
That person does not qualify for judicial office. It is also misleading
because it encourages the thinking that being black or female
somehow enhances a candidate’s fitness and propriety for office.
Yet, in a society committed to non-racialism and non-sexism, we
should be vigilant not to assume that any qualities relevant to
judging flow from membership of a group. As argued above in the
context of the Sotomayor controversy, it may be that because a
candidate is black or female, and has experienced discrimination,
their capacity for empathy and compassion is enhanced, but that
will depend on the person in question and does not flow
automatically from their membership of a group. Similarly, a
person’s commitment to constitutional values or qualification to
adjudicate questions of constitutional law does not flow from their
race or gender, but from their humanity, what skills and experience
they possess and how they have chosen to live their lives.
This case, read with the other SCA cases dealing with the
procedure to be followed by the JSC when appointing and
disciplining judges, suggests that the JSC does not only
have an obligation to act rationally when it makes these
decisions. It also has a duty to make some kind of decision
and cannot decide not to make a decision at all in cases
where a decision is required.
CRITICAL THINKING
the letter conveys a meaning that Adv Pikoli was to stop any
plan to arrest and prosecute the National Commissioner of
Police until the Minister was satisfied that there was sufficient
information and evidence to do so. The Minister has since on
affidavit said that it was not her intention to stop Adv Pikoli from
discharging his duties or performing his functions as the NDPP.
Assuming this is correct, the conduct of the DG: Justice in
drafting the document in the manner it reads was reckless to
say the least. The DG: Justice should have been acutely aware
of the constitutional protection afforded to the NPA to conduct
its work without fear, favour or prejudice. The contents of the
letter were tantamount to executive interference with the
prosecutorial independence of the NPA, which is recognised as
a serious offence in the Act.
SUMMARY
The judiciary is the third, but distinct and most independent, branch of
government within the system of separation of powers.
At the pinnacle of the superior courts is the Constitutional Court which
now has the jurisdiction not only to hear any constitutional matter, but also
any other matter that raises an arguable point of law of general importance
which, in the opinion of the Constitutional Court, ought to be considered by
it. The Constitutional Court ordinarily acts as a court of appeal, considering
constitutional and other matters of legal doctrine on appeal from any of the
High Courts or from the Supreme Court of Appeal (SCA). However, when
a High Court declares invalid provisions of an Act of Parliament, the
provisions of a provincial legislature or an act of the President, the matter
automatically goes to the Constitutional Court which is required to confirm
the order of invalidity before such an order has any force.
In addition, the Constitutional Court has exclusive jurisdiction to decide:
• on disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of those
organs of state
• on the constitutionality of any parliamentary or provincial Bill
• on the constitutionality of Bills referred to it by the NA or provincial
legislatures
• on the constitutionality of any amendment to the Constitution
• that Parliament or the President has failed to fulfil a constitutional
obligation
• or to certify a provincial constitution.
The SCA is an appeal court that can hear appeals from High Courts on any
matter except matters exclusively reserved for the Constitutional Court. The
SCA is the final court on matters relating to findings of fact and to the
application of facts to law. The High Courts can hear constitutional matters,
except those matters exclusively reserved for the Constitutional Court, and
often sit as courts of first instance.
The judiciary (and, in South Africa, most pertinently the superior courts,)
is tasked with interpreting and enforcing the Constitution and thus as acting
as the referee to ensure that members of the other branches of government
act in accordance with the Constitution. It is therefore important that special
safeguards are put in place to secure its independence. During the apartheid
era, the independence of the judiciary was not adequately guaranteed. With
the advent of democracy, the Constitution created additional mechanisms to
safeguard the independence of the judiciary.
The Judicial Service Commission (JSC), composed of a combination of
lawyers, judges and politicians, now plays an important role in the
appointment of all superior court judges. When the President appoints the
Chief Justice or Deputy Chief Justice and the President and Deputy
President of the SCA, this role of the JSC is only advisory. With all other
High Court judges, the JSC selects the appointees who are then merely
formally appointed by the President. There is much controversy about the
criteria for the appointment of judges, but the need for the judiciary to
reflect broadly the racial and gender composition of South Africa does play
a pivotal role in the consideration of suitable candidates for appointment.
Apart from the appointment of impartial and independent judicial
officers, the independence of the judiciary is formally guaranteed by
requiring judges to take an oath of office, by safeguarding the security of
tenure of judges, by protecting the financial security of judges and by
limiting the civil liability of judges. Lower courts and traditional courts are
less independent but it is assumed that the superior courts will protect these
courts and will ensure that their decisions comply with the requisite
impartiality and independence.
The National Prosecuting Authority (NPA) is neither part of government
nor of the judiciary but it does play a pivotal role in the operation of the
criminal justice system as it is tasked with making decisions on the
prosecution of criminal suspects. The NPA has a duty to act without fear,
favour or prejudice. This means that it must act independently from the
government of the day although it is legally and constitutionally required to
report to the Minister of Justice on its activities and decisions. The NPA is
headed by the National Director of Public Prosecutions (NDPP) whose
independence is safeguarded by the NPA Act. The President appoints the
NDPP but the appointee must comply with the objective criteria set out in
the NPA Act.
1 Van Zyl, D (2009) The judiciary as a bastion of the legal order in challenging times
Potchefstroom Electronic Law Journal 12(2):1–13 at 2.
2 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and the
African National Congress in a dominant party democracy Constitutional Court Review 2:1–86
at 1.
3 S 172(1)(a).
4 S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 18:
Therefore courts have over the centuries developed a method of functioning, a self-
discipline and a restraint which, although it differs from jurisdiction to jurisdiction,
has a number of essential characteristics. The most important is that judges speak
in court and only in court. They are not at liberty to defend or even debate their
decisions in public. It requires little imagination to appreciate that the alternative
would be chaotic. Moreover, as a matter of general policy judicial proceedings of
any significance are conducted in open court, to which everybody has free access
and can assess the merits of the dispute and can witness the process of its resolution.
This process of resolution ought as a matter of principle to be analytical, rational
and reasoned. The rules to be applied in resolving the dispute should either be
known beforehand or be debated and determined openly. All decisions of judicial
bodies are as a matter of course announced in public; and, as a matter of virtually
invariable practice, reasons are automatically and publicly given for judicial
decisions in contested matters. All courts of any consequence are obliged to
maintain records of their proceedings and to retain them for subsequent scrutiny.
Ordinarily the decisions of courts are subject to correction by other, higher
tribunals, once again for reasons that are debated and made known publicly.
5 Mahomed, I (1998) The role of the judiciary in a constitutional state South African Law
Journal 115(1):111–15 at 112. See also Mamabolo para 16:
In our constitutional order the judiciary is an independent pillar of state,
constitutionally mandated to exercise the judicial authority of the state fearlessly
and impartially. Under the doctrine of separation of powers it stands on an equal
footing with the executive and the legislative pillars of state; but in terms of
political, financial or military power it cannot hope to compete. It is in these terms
by far the weakest of the three pillars; yet its manifest independence and authority
are essential. Having no constituency, no purse and no sword, the judiciary must
rely on moral authority. Without such authority it cannot perform its vital function
as the interpreter of the Constitution, the arbiter in disputes between organs of
state and, ultimately, as the watchdog over the Constitution and its Bill of Rights –
even against the state.
6 (CCT 59/09) [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March
2010) paras 92–3.
7 See generally Roux, T (2009) Principle and pragmatism on the Constitutional Court of South
Africa International Journal of Constitutional Law 7(1):106–38.
8 For a discussion of the role of the judiciary during apartheid, see Forsyth, CF (1985) In Danger
for Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from
1950–1980; Dyzenhaus, D (1991) Hard Cases in Wicked Legal Systems: South African Law in
the Perspective of Legal Philosophy; Ellman, SJ (1992) In a Time of Trouble: Law and Liberty
in South Africa’s State of Emergency.
9 Mtshaulana, PM ‘The history and role of the Constitutional Court in South Africa’ in Andrews,
P and Ellmann, S (2001) The Post-Apartheid Constitutions: Perspectives on South Africa’s
Basic Law 525.
10 See Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 225–30. See also
Dugard, J (1978) Human Rights and the South African Legal Order.
11 Klug (2010) 226. See generally Haysom, N and Kahanovitz, S ‘Courts and the State of
Emergency’ in Moss, G and Obery, I (eds) (1987) South African Review 4 192.
12 See Basson, D (1987) Judicial activism in a State of Emergency: An examination of recent
decisions of the South African courts South African Journal on Human Rights 3(1):28–43 at
28.
13 See Madala, T (2001) Rule under apartheid and the fledgling democracy in post-apartheid
South Africa: The role of the judiciary North Carolina Journal of International Law and
Commercial Regulation 26(3):743–66 at 748. See also Azanian Peoples Organization
(AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96)
[1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) para 1 where
Mahommed states: ‘The legitimacy of law itself was deeply wounded as the country
haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the
entire nation.’
14 Ellmann, S (1995) Law and legitimacy in South Africa Law and Social Inquiry 20(2):407–79
at 425.
15 Ellmann (1995) 409.
16 See Madala (2001) 745.
17 See Madala (2001) 748; Higginbotham, FM (1994) Sins from the past and lessons for the
future: Eliminating apartheid in South African public accommodation and the challenge to an
enlightened judiciary Boston University International Law Journal 12(1):1–56 at 1.
18 See the report by Gordon, A and Bruce, D (2006) Transformation and independence of the
judiciary in South Africa, Centre for Study of Violence and Reconciliation (CSVR) 1–57 at 13.
19 See Dyzenhaus, D (1998) Judging the Judges, Judging Ourselves: Truth, Reconciliation and
the Apartheid Legal Order 16, quoted in Gordon and Bruce (2006), indicating that this
approach means that the ‘judges hold that the judiciary duty when interpreting a statute is
always to look to those parts of public record that make clear what the legislators as a matter of
fact intended [and] in this way, the judges merely determined the law as it is, without
permitting their substantive convictions about justice to interfere’.
20 See Dugard (1978) 369.
21 See Govindjee, A and Olivier, M ‘Finding the boundary: The role of the courts in giving effect
to socio-economic rights in South Africa’ in Osode, PC and Glover, G (eds) (2010) Law and
Transformative Justice in Post-Apartheid South Africa 79.
22 Corder, H (2004) Judicial authority in a changing South Africa Legal Studies 24(2):253–74 at
255.
23 See S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3)
SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 301 where Mokgoro J
stated that:
… due to the sovereignty of parliament, the supremacy of legislation and the
absence of judicial review of parliamentary statutes, courts engaged in simple
statutory interpretation, giving effect to the clear and unambiguous language of the
legislative text – no matter how unjust the legislative provision.
24 See Gordon and Bruce (2006) 11.
25 See Wesson, M and Du Plessis, M (2008) Fifteen years on: Central issues relating to the
transformation of the South African judiciary South African Journal on Human
Rights 24(2):187–213 at 190.
26 Act 59 of 1959.
27 Wesson and Du Plessis (2008) 190.
28 Wesson and Du Plessis (2008) 190. See also Cameron, E (1982) Legal chauvinism, executive-
mindedness and justice: LC Steyn’s impact on South African law South African Law Journal
99(1):38–75 at 40, detailing the ‘meteoric’ rise of LC Steyn to the position of Chief Justice,
largely on the basis of his political affiliation.
29 See Madala (2001) 759.
30 Madala (2001) 759.
31 Mokgoro, Y (2010, December) Judicial appointments Advocate 43–8. See also Davis, DM
(2010, December) Judicial appointments in South Africa Advocate 40–3.
32 Moerane, M (2003) The meaning of transformation of the judiciary in the new South African
context South African Law Journal 120(4):708–18 at 712.
33 Moerane (2003) 712. See also Dugard, J (2007) Judging the judges: Towards an appropriate
role for the role of the judiciary in South Africa’s transformation Leiden Journal of
International Law 20(4):965–81 at 968.
34 See, for example, the Income Tax Act 58 of 1962 which created a special court for hearing
income tax appeals.
35 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 273.
36 See generally the Black Administration Act 38 of 1927 (BAA).
37 Policy Framework on the Traditional Justice System under the Constitution, Department of
Justice and Constitutional Development 10, available at http://www.pmg.org.za/policy-
documents/2009/03/02/policy-framework-traditional-justice-system-under.
38 Vani, MS ‘Customary law and modern governance of natural resources in India: Conflicts,
prospects for accord and strategies’ in Pradham, R (ed) (2002) Legal Pluralism and Unofficial
Law in Social, Economic and Political Development 419.
39 Vani 419.
40 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October
2004).
41 (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008).
42 Vani 419.
43 Vani 419.
44 Vani 419.
45 Vani (2002) 419.
46 (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March
2004) para 74.
47 See the Traditional Courts Bill B 1–2012 available at
http://www.justice.gov.za/legislation/bills/2012-b01tradcourts.pdf. The Bill has been heavily
criticised. See, for example, the submission made to Parliament by the Law, Race and Gender
Institute, now the Centre for Law and Society, available at
http://www.cls.uct.ac.za/usr/lrg/docs/TCB/2012/lrg_feb2012_ncopsubmission.pdf.
48 S 167(1) read with s 165(6) of the Constitution as well as s 4(1) of the Superior Courts Act 10
of 2013. See also Justice Alliance of South Africa v President of Republic of South Africa and
Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for
Applied Legal Studies and Another v President of Republic of South Africa and Others (CCT
53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR
1017 (CC) (29 July 2011) para 78.
49 S 167(1) of the Constitution read with s 4(2) of the Superior Courts Act.
50 Justice Alliance para 78.
51 Justice Alliance para 78.
52 Justice Alliance para 78.
53 Justice Alliance para 79.
54 S 4(1)(b) of the Superior Courts Act.
55 S 166(b) of the Constitution. See also Currie and De Waal (2001) 278.
56 S 168(1) of the Constitution.
57 S 4(2)(b) of the Superior Courts Act.
58 S 5(1)(b) of the Superior Courts Act.
59 S 169.
60 S 169(2) of the Constitution.
61 S 6(2) of the Superior Courts Act.
62 S 8(4)(c) of the Superior Courts Act.
63 S 6 of the Superior Courts Act. Most sections of the Act came into operation in August 2013.
64 See ss 10–16 of the Magistrates Act 90 of 1993.
65 Act 66 of 1995 as amended by Act 127 of 1998.
66 Act 22 of 1994 as amended by Act 48 of 2003.
67 Act 58 of 1962.
68 Children’s Act 38 of 2005.
69 Act 99 of 1998.
70 Act 116 of 1998.
71 Berman G, and Feinblatt, J (2001) Problem-solving courts: A brief primer Law and Policy
23(2):125–40 at 125.
72 See Currie and De Waal (2001) 279–80.
73 See Klug (2010) 237–8.
74 S 168(3).
75 S 167(3).
76 However, the Constitution Seventeenth Amendment Act, 2012, available at
http://www.info.gov.za/view/DownloadFileAction?id=184794, changes this state of affairs.
77 See s 167(3) before it was amended.
78 S 167(3)(b) of the Constitution. See Alexkor Ltd and Another v Richtersveld Community and
Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003) para 24 where the Court had to deal with the interpretation of the
Restitution of Land Rights Act 22 of 1994 in dealing with questions about the Richtersveld
community’s rights to the land, but stated that it would also be necessary to deal with non-
constitutional matters:
A more difficult question is to determine whether this Court has jurisdiction to deal
with all issues bearing on or related to establishing the existence of these matters.
For example, the question might be asked whether the issue concerning the
existence of the Community’s rights in land prior to the colonisation of the Cape, or
the content or incidence of such rights, constitute in themselves ‘constitutional
matters’; the same might be asked concerning the continued existence of such rights
after the British Crown’s annexation of the Cape in 1806, or after the 1847
Proclamation or the subsequent statutory and other acts thereafter.
79 S 167(7) of the Constitution.
80 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000)
para 44.
81 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 24.
82 See Currie, I and De Waal, J (2005) The Bill of Rights Handbook 5th ed 66.
83 Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938
(CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 33; see also para 36. See also Thebus
and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100
(CC) (28 August 2003) para 25; K v Minister of Safety and Security (CCT52/04) [2005] ZACC
8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005)
para 15; Masiya v Director of Public Prosecutions Pretoria (The State) and Another
(CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007)
para 33; Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7)
BCLR 691 (CC) (4 April 2007) para 35. Some commentators have wrongly taken issue with
this interpretation, arguing that the Constitution accords the spirit, purport and object of the
Bill of Rights only a secondary role to serve as a tie-breaker when the rights in the Bill of
Rights, justice and the rules of the common law are indeterminate. See Fagan, A (2010) The
secondary role of the spirit, purport and objects of the Bill of Rights in the common law’s
development South African Law Journal 127(4):611–27. Fagan has been criticised by Davis,
who argues that the Constitution intended that the common law reflect the normative value
system as found in a holistic reading of the text of the Constitution. This means that the trigger
that propels judges to make the decision to develop the common law is to be found in a judicial
engagement with the constitutional value system. See Davis, D (2012) How many positivist
legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan
South African Law Journal 129(1):59–72.
84 See S v Boesak (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912
(1 December 2000) para 14.
85 Pharmaceutical Manufacturers para 20.
86 Carmichele para 54.
87 See ss 172(1) and 167(4)(a) of the Constitution. See also Boesak para 14.
88 National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town
and Others (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC)
(6 December 2002) para 14; Alexkor para 23; Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) para 25.
89 Act 4 of 2000.
90 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008
(1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
91 S 167(3)(b) of the Constitution.
92 S 167(3)(c) of the Constitution.
93 Boesak para 15.
94 (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912 (1 December 2000).
95 S v Boesak (105/99) [2000] ZASCA 24 (12 May 2000).
96 Boesak para 15.
97 S 167(5) of the Constitution.
98 (CCT13/09) [2009] ZACC 20; 2009 (6) SA 94 (CC) (22 July 2009) para 15.
99 S 167(4)(a) of the Constitution.
100 S 167(4)(b) of the Constitution.
101 S 167(4)(c) of the Constitution.
102 S 80(2)(a) of the Constitution.
103 S 122(2)(a) of the Constitution.
104 Ss 80(2)(b) and 122(2)(b) of the Constitution.
105 S 167(4)(d) of the Constitution.
106 (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)
para 12.
107 UDM para 12.
108 (CCT36/95) [1995] ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29 November 1995)
para 47.
109 S 167(4)(e) of the Constitution.
110 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others (SARFU I) (CCT16/98) [1998] ZACC 21; 1999 (2) SA 14; 1999 (2) BCLR 175
(2 December 1998) para 25.
111 Women’s Legal Trust para 11.
112 Women’s Legal Trust para 12.
113 See generally Doctors for Life International v Speaker of the National Assembly and Others
(CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006).
114 See Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996] ZACC 17; 1996 (11)
BCLR 1419; 1996 (4) SA 1098 (6 September 1996); Certification of the Constitution of the
Western Cape, 1997 (CCT6/97) [1997] ZACC 8; 1997 (12) BCLR 1653; 1998 (1) SA 655
(2 September 1997); Certification of the Amended Text of the Constitution of the Western Cape,
1997 (CCT29/97) [1997] ZACC 15; 1997 (12) BCLR 1653; 1998 (1) SA 655 (18 November
1997).
115 Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3;
1998 (2) SA 1143; 1998 (4) BCLR 415 (24 March 1998) para 9. See also Van der Spuy v
General Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392;
2002 (10) BCLR 1092 (18 July 2002) para 6; National Gambling Board v Premier of
KwaZulu-Natal and Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR 156; 2002 (2) SA
715 (21 December 2001) para 29; Moseneke and Others v Master of the High Court
(CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000)
paras 18–9; Dormehl v Minister of Justice and Others (CCT10/00) [2000] ZACC 4; 2000 (2)
SA 825; 2000 (5) BCLR 471 (CC) (14 April 2000) para 5; Christian Education South Africa v
Minister of Education (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449
(14 October 1998) paras 3–4; Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC
7; 1997 (6) BCLR 677; 1997 (3) SA 772 (5 June 1997) para 4; Transvaal Agricultural Union v
Minister of Land Affairs and Another (CCT21/96) [1996] ZACC 22; 1996 (12) BCLR 1573;
1997 (2) SA 621 (18 November 1996) para 16; Brink v Kitshoff NO (CCT15/95) [1996] ZACC
9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 3; Besserglik v Minister of Trade
Industry and Tourism and Others (Minister of Justice intervening) (CCT34/95) [1996] ZACC
8; 1996 (6) BCLR 745; 1996 (4) SA 331 (14 May 1996) paras 4–6; Luitingh v Minister of
Defence (CCT29/95) [1996] ZACC 5; 1996 (4) BCLR 581; 1996 (2) SA 909 (4 April 1996)
para 15; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR
293; 1996 (2) SA 464 (9 February 1996) para 29; Executive Council of the Western Cape
Legislature and Others v President of the Republic of South Africa and Others (CCT27/95)
[1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) paras 15–7; S v
Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 11.
116 S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997 (2) SA 887
(18 November 1996) para 15; See also Carmichele para 50.
117 Bruce para 8.
118 Transvaal Agricultural Union para 20.
119 AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The
Minister for Home Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA
649 (CC); 2009 (6) BCLR 611 (CC) (12 March 2009) para 30.
120 Bruce para 9. See also Van der Spuy para 6; National Gambling Board para 29; Moseneke
paras 18–19; Dormehl para 5; Christian Education paras 3–4; Ntuli para 4; Transvaal
Agricultural Union para 16; Brink para 3; Besserglik paras 4–6; Luitingh para 15; Mbatha,
Prinsloo para 29; Executive Council of the Western Cape Legislature paras 15–17; Zuma
para 11.
121 (CCT1/98) [1998] ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR 415 (24 March 1998) paras 7–
8. See also Aparty para29.
122 S 167(3)(c) of the Constitution.
123 Currie and De Waal (2005) 111.
124 S 168(3).
125 See Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT13/99)
[2000] ZACC 3; 2002 (4) SA 294 (CC) 2002 (5) BCLR 433 (11 April 2002) para 17; De Reuck
v Director of Public Prosecutions (Witwatersrand Local Division) and Others (CCT5/03)
[2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October 2003)
para 4.
126 See Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4)
SA 753; 1998 (10) BCLR 1207 (27 August 1998) para 33.
127 (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007)
para 17.
128 National Gambling Board para 38; Wallach v High Court of South Africa (Witwatersrand
Local Division) and Others (CCT2/03) [2003] ZACC 6; 2003 (5) SA 273 (CC) (4 April 2003)
para 7.
129 (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998)
para 33.
130 S 169(1)(a).
131 S 167(5) of the Constitution.
132 See Currie and De Waal (2005) 122.
133 Act 32 of 1944.
134 Wesson and Du Plessis (2008) 191.
135 See also O’Regan, K (2004) Human rights and democracy – a new global debate: Reflections
on the first ten years of South Africa’s Constitutional Court International Journal of Legal
Information 32(2):200–16 at 202.
136 See S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
2002) para 27.
137 See Constitution of Kenya (2010) item 23 in Schedule 6, which states:
(1) Within one year after the effective date, Parliament shall enact legislation …
establishing mechanisms and procedures for vetting, within a timeframe to be
determined in the legislation, the suitability of all judges and magistrates who
were in office on the effective date to continue to serve in accordance with the
values and principles set out in [the Constitution]…
(2) A removal, or a process leading to the removal, of a judge, from office by virtue
of the operation of legislation contemplated under subsection (1) shall not be
subject to question in, or review by, any court.
138 De Lange, R and Mevis, PAM (2007) Constitutional guarantees for the independence of the
judiciary Electronic Journal of Comparative Law 11(1):1–17 at 7.
139 See Ntlama, N (2009, 16–20 July) The Hlophe saga: the question for the institutional integrity
of the judiciary, Paper presented at the Law Teachers Conference in Pietermaritzburg, available
at http://wenku.baidu.com/view/6c6473f0fab069dc50220111.html.
140 Zuma para 17.
141 See also s 39(1)(b) and (c) of the Constitution which requires the court to take into account
international law and allows the court to take into account foreign case law when interpreting
the provisions of the Bill of Rights.
142 De Vos, P (2001) A bridge too far? History as context in the interpretation of the South African
Constitution South African Journal on Human Rights 17(1):1–33 at 6.
143 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995).
144 Klare, K (1998) Legal culture and transformative constitutionalism South African Journal on
Human Rights 14(1):146–88 at 173. See also Makwanyane para 207, per Kriegler J.
145 Makwanyane para 321, per O’Regan J; para 207, per Kriegler J; para 266, per Mahomed J;
para 382, per Sachs J.
146 See Klare (1998) 172–87 for examples of this kind of reasoning by the judges of the
Constitutional Court.
147 (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) para 48.
148 (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).
149 Van Rooyen para 19. See also De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6;
1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May 1998)(CC) para 71.
150 Van Rooyen para 22.
151 Van Rooyen para 32.
152 Van Rooyen para 33.
153 Van Rooyen para 32.
154 See by Lewis, C (2008, 14 October) The troubled state of South Africa’s judiciary, Paper
presented at the South African Institute of Race Relations, available at
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?
oid=106544&sn=Detail. See also Currie and De Waal (2001) 300.
155 See Larkins, CM (1996) Judicial independence and democratization: A theoretical and
conceptual analysis American Journal of Comparative Law 44(4):605–25 at 611.
156 Larkins (1996) 611.
157 Van Rooyen paras 22 and 31.
158 For example, after Judge Chris Nicholson found that there was political interference in the
decision to charge Jacob Zuma for corruption in Zuma v National Director of Public
Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1 All SA 54 (N); 2009 (1) BCLR 62 (N)
(12 September 2008), the NEC of the ANC decided to ‘recall’ then President Thabo Mbeki as
President of South Africa. The judgment therefore had a profound and immediate effect on
who headed up the executive and thus who governed the country.
159 Wesson and Du Plessis (2008) 191.
160 Wesson and Du Plessis (2008) 192.
161 Act 9 of 1994.
162 See Malleson, K (1999) Assessing the performance of the Judicial Service Commission South
African Law Journal 116(1):36–49 at 38.
163 S 178(1)(a)–( j) of the Constitution. See generally Davis (2010, December) 41 and Mgkoro
(2010, December) 43.
164 For an extensive discussion about the political influence on the JSC, see Powell, C and Franco.
J (2004) The meaning of institutional independence in Van Rooyen v S South African Law
Journal 121(3):562–79 at 562.
165 S 178(1) of the Constitution.
166 Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape
Province (537/10) [2011] ZASCA 53; 2011 (3) SA 538 (SCA); [2011] 3 All SA 459 (SCA)
(31 March 2011) para 12 where Harms AJ stated that:
it would be inconsistent and illogical for the Constitution to provide for a Premier
to participate in the appointment of a high court judge – and, as I have said, the
JSC agrees that a Premier is included for this purpose – but not in a decision to
remove such a judge. Both affect the composition of the bench of a particular high
court.
167 Davis (2010, December) 41; Wesson and Du Plessis (2008) 193; Kentridge, S (2003) The
highest court: Selecting the judges Cambridge Law Journal 62(1):55–71 at 55.
168 See, for example, McKaiser, E (2009, 6 August) Tragicomedy revealed more about JSC than
about judges Business Day in which the author takes the JSC to task for its inability to probe
any of these key questions when the JSC last year conducted interviews for four vacancies on
the Constitutional Court. See also De Vos, P (2013, 21 January) Judicial appointments: The
JSC’s transformation problem Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/judicial-appointments-the-jscs-transformation-problem/.
169 S 174(3) of the Constitution.
170 S 174(3) of the Constitution.
171 See Gauntlett, J and Du Plessis, M (2011, 25 August) Ex Parte: Freedom under Law, In re: The
Appointment of the Chief Justice Memorandum 10–11 Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/ful-proposes-changes-to-appointment-of-chief-justice/.
172 S 174(4) of the Constitution.
173 S 174(4)(a) of the Constitution.
174 S 174(4)(b) and (c) of the Constitution.
175 S 174(5) of the Constitution.
176 S 174(6) of the Constitution.
177 S 174(1) and 174(2).
178 See Judicial Service Commission, Summary of the Criteria Used by the Judicial Service
Commission when Considering Candidates for Judicial Appointments, available at
http://constitutionallyspeaking.co.za/criteria-used-by-jsc-when-considering-judicial-
appointments/.
179 Cowen, S (2010) Judicial selection in South Africa, Democratic Governance Rights Unit
(DGRU) Paper, available at
http://www.dgru.uct.ac.za/usr/dgru/downloads/Judicial%20SelectionOct2010.pdf.
180 S 165(2).
181 In an address to the International Commission of Jurists in Cape Town on 21 July 1998 5.
182 Chaskalson, A (2009, 25 June) Does Hlophe approve of campaign on his behalf? Cape Times.
183 See section 1(a) of the Constitution.
184 Cowen (2010) 47.
185 Forsyth, C (1991) Interpreting a bill of rights: The future task of a reformed judiciary South
African Journal on Human Rights 7(1):1–23 at 15–17.
186 See generally Pruitt, LR (2002) No black names on the letterhead? Efficient discrimination and
the South African legal profession Michigan Journal of International Law 23(3):545–676.
187 See, for example, Davis, RPB (1914) Women as advocates and attorneys South African Law
Journal 31(4):383–86 at 384 for an example of early discriminatory attitudes towards women
in the legal profession in South Africa:
We cannot but think the common law wise in excluding women from the profession
of law … the law of nature destines and qualifies the female sex for the bearing and
nurture of children and our race and for the custody of the world … all life-long
callings of women, inconsistent with these radical and sacred duties of their sex, as
is the profession of law, are departures from the order of nature and when
voluntary treason against it. The cruel chances of life sometime baffle both sexes
and may leave women free from peculiar duties of their sex … but it is public policy
to provide for the sex not for its superfluous members; and not to tempt women
from the proper duties of their sex by opening to them duties peculiar to ours.
188 See De Vos, P (2013, 11 April) The JSC must redefine merit to advance judicial transformation
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/the-jsc-must-
redefine-merit-to-advance-judicial-transformation/.
189 See Lewis (2008, 14 October) 2.
190 See De Vos, P (2013, 21 January) Judicial appointments: The JSC’s transformation problem
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/judicial-
appointments-the-jscs-transformation-problem/.
191 Cowen (2010) 53.
192 Davis (2010, December) 42.
193 For divergent perspectives, see Mkhabela, M (2011, 19 August) Judiciary must be de-
politicised The Sowetan available at
http://www.sowetanlive.co.za/columnists/2011/08/19/judiciary-must-be-de-politicised;
Hoffman, P (2011, 2 December) To judge the judgments Mail & Guardian available at
http://mg.co.za/article/2011-12-02-to-judge-the-judgments.
194 Cowen (2010) 57.
195 (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013]
1 All SA 40 (SCA) (14 September 2012), affirming the decision of the Western Cape High
Court in Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011]
ZAWCHC 388; 2012 (4) BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September
2011).
196 Cape Bar Council paras 20–2.
197 Cape Bar Council para 36.
198 Cape Bar Council paras 43–4.
199 Cape Bar Council para 45.
200 Cowen (2010) 59–60.
201 S 174(8) of the Constitution states: ‘Before judicial officers begin to perform their functions,
they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and
protect the Constitution.’
202 Currie and De Waal (2001) 305.
203 See ss 176 and 177.
204 Section 176 was amended by the Constitution Sixth Amendment Act of 2001.
205 Act 47 of 2001.
206 The amendment was widely seen as a move to extend the term of office of then Chief Justice
Arthur Chaskalson who was coming to the end of his term of office. See Du Bois, F (2002)
Tenure on the Constitutional Court South African Law Journal 119(1):1–17 who criticised the
amendment of section 176 of the Constitution as well as the provisions of the Judges’
Remuneration and Conditions of Employment Act and referred to a submission made to
Parliament at the time when it was debating this issue. The article also notes critical comments
made by then Chief Justice Chaskalson about moves to extend his term.
207 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011).
208 Justice Alliance para 50.
209 Justice Alliance para 51.
210 Justice Alliance para 57.
211 Justice Alliance para 58.
212 Justice Alliance para 73.
213 Justice Alliance para 75.
214 Justice Alliance paras 79–80.
215 Justice Alliance para 91.
216 S 176(2) of the Constitution.
217 S 177(3) of the Constitution.
218 S 8 of the JSC Act.
219 Ss 14 and 15 of the JSC Act.
220 S 15(2) of the JSC Act.
221 S 17 of the JSC Act.
222 S 22 of the JSC Act.
223 S 33 of the JSC Act.
224 (2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March
2011).
225 Freedom Under Law para 7.
226 Freedom Under Law para 63.
227 Freedom Under Law para 42.
228 Freedom Under Law para 45.
229 S 176(3).
230 Established under s 2 of the Independent Commission for the Remuneration of Public Office-
bearers Act 92 of 1997.
231 Ss 2(6) and 14 of the Judges’ Remuneration and Conditions of Employment Act.
232 See generally Currie and De Waal (2001) 307.
233 1945 AD 6.
234 1981 (1) SA 1 (A).
235 Currie and De Waal (2001) 307.
236 Act 10 of 2013.
237 If it is sought to serve process out of a magistrates’ court, then the litigant must obtain the prior
permission of that division of the Supreme Court which has appeal jurisdiction over the
magistrates’ court in question.
238 Currie and De Waal (2001) 308.
239 S 5 of the Constitutional Court Complementary Act 13 of 1995.
240 See generally Currie and De Waal (2001) 308–10.
241 See s 9(1)(b) of the Magistrates’ Courts Act which sets out the necessary qualifications for
appointment as a magistrate. See generally Van Rooyen.
242 Act 111 of 1984.
243 Currie and De Waal (2001) 308.
244 Hoexter Commission of Inquiry into the Structure and Functioning of the Courts (1983) RP
78/83 Part IV para 4.2.1 (g).
245 Act 90 of 1993.
246 Van Rooyen para 49.
247 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 136.
248 See s 3 of the Magistrates Act.
249 Van Rooyen para 57.
250 Van Rooyen para 61.
251 S 3(1)(a) of the Magistrates Act.
252 Van Rooyen para 48.
253 South African Law Commission (2003) Customary Law: Report on Traditional Courts and the
Judicial Function of Traditional Leaders Project 90 1 available at
http://www.justice.gov.za/salrc/reports/r_prj90_tradlead_2003jan.pdf (accessed on 25 January
2013).
254 See, for example, the Black Administration Act 38 of 1927, the Bophuthatswana Traditional
Courts Act 29 of 1979, the KwaNdebele Traditional Authorities Act 8 of 1984, the Chiefs
Courts Act 6 of 1993 (Transkei) and the KwaZulu Amakhosi and Iziphakanyiswa Act 9 of
1990.
255 Act 38 of 1927. Most sections of this law have been repealed, but these sections are some of
the few that were retained and continue to be in operation.
256 Section 16 of Schedule 6 of the Constitution reads as follows:
Every court, including courts of traditional leaders, existing when the new
Constitution took effect, continues to function and to exercise jurisdiction in terms
of legislation applicable to it and anyone holding office as a judicial officer
continues to hold office in terms of legislation applicable to that office, subject to
any amendment or repeal of that legislation, and consistency with the new
Constitution.
257 S 211(1) states: ‘The institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.’
258 S 212(1).
259 Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v North
West Provincial Government and Another (CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347;
2001 (1) SA 500 (2 March 2000) para 1. See also Moseneke paras 20–1 where the
Constitutional Court described the BAA as follows:
The Act systematised and enforced a colonial form of relationship between a
dominant white minority who were to have rights of citizenship and a subordinate
black majority who were to be administered. … It is painful that the Act still
survives at all. The concepts on which it was based, the memories it evokes, the
language it continues to employ, and the division it still enforces, are antithetical to
the society envisaged by the Constitution. It is an affront to all of us that people are
still treated as ‘blacks’ rather than as ordinary persons seeking to wind up a
deceased estate, and it is in conflict with the establishment of a non-racial society
where rights and duties are no longer determined by origin or skin colour.
260 S 12(4) of the BAA provides for appeals from judgments of a chief, headman or chief’s deputy
in a civil matter, while s 20(6) provides for appeals from a chief, headmen or chief’s deputy in
a criminal matter. In each case the appeal goes to the magistrates’ court. See also Bennett, TW
(2004) Customary Law in South Africa 127.
261 SALC (2003) Report on Traditional Courts and the Judicial Function of Traditional Leaders 5.
262 See s 28(1) of the Traditional Leadership and Governance Framework Act 41 of 2003
(TLGFA).
263 Ss 12 and 20 of the BAA.
264 SALC (2003) Report on Traditional Courts and the Judicial Function of Traditional Leaders 6.
265 See Law, Race and Gender Unit (now Centre for Law and Society) Submission on the
Traditional Courts Bill (B1–2012) available at
http://www.lrg.uct.ac.za/usr/lrg/docs/TCB/2012/lrg_feb2012_ncopsubmission.pdf17.
266 S 165(2) of the Constitution. See Bennet (2004) 117. This argument was rejected in
Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western
Tembuland Regional Authority (1998) 3 BCLR 314 (Tk). However, in Mhlekwa & Feni v Head
of the Western Tembuland Regional Authority 2000 (9) BCLR 979 (Tk) 1017–18, the Court
held that the fact that there is a fusion of judicial and administrative functions does not
necessarily denote an absence of judicial independence. Some of the functions performed by
chiefs are such that they may potentially involve him or her in controversial public issues and
may create a perception of an unduly close relationship with the executive branch of
government. The Court implored the legislature to address this problem.
267 Bennet (2004) 128.
268 S 179(1).
269 S 179(2) of the Constitution.
270 S 179(1)(a) of the Constitution.
271 Act 32 of 1998.
272 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) paras 14–26.
273 S 9(1).
274 S 9(2) of the NPA Act.
275 S 12(1).
276 This suggests that the President need not appoint a judge to head this enquiry although the
appointment must be rational. Given the fact that the purpose of the appointment is to enquire
into whether – objectively speaking – the NDPP is fit to continue with his or her work, it may
well be that a court would declare invalid the appointment of a person to head this enquiry if
that person is manifestly not capable of bringing an independent mind to bear on the enquiry.
277 S 12(6) and 12(7) of the NPA Act.
278 See generally National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1;
2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All
SA 243 (SCA) (12 January 2009) paras 28–30 for a history of the role of Attorneys-General in
commonwealth countries. See also Scott, IG (1987) The role of the Attorney-General and the
Charter of Rights Criminal Law Quarterly 29(2):187–99 at 187; Wade, ECS and Bradley, AW
(1993) Constitutional and Administrative Law 11th ed 402–4; Ex parte Attorney-General: In
Re Constitutional Relationship between the Attorney-General and the Prosecutor-General SA
7/93 [1995] NASC 1; 1995 (8) BCLR 1070 (Nm5) (13 July 1995); Githunguri v Republic of
Kenya [1986] LRC (Const) 618 (HC); Proulx v Quebec (Attorney-General) 2001 SCC 66,
[2001] 3 SCR 9. For the constitutional crisis about the independence of the Attorney-General
in 1924 in the UK, see De Smith, SA (1981) Constitutional and Administrative Law 4th ed
380–1.
279 General Law Amendment Act 46 of 1935.
280 See NDPP v Zuma para 29.
281 See s 5 of the Attorney-General Act 92 of 1992.
282 See also Nicholson J in Zuma v NDPP.
283 NDPP v Zuma para 32. For the Namibian jurisprudence, see Ex parte Attorney-General: In Re
Constitutional Relationship between the Attorney- General and the Prosecutor-General SA
7/93 [1995] NASC 1; 1995 (8) BCLR 1070 (Nm5) (13 July 1995).
284 NDPP v Zuma para 32. This is made clear by the NPA Act. S 32(1)(a) of the NPA Act requires
members of the prosecuting authority to serve ‘impartially’ and to exercise, carry out or
perform their powers, duties and functions ‘in good faith and without fear, favour or prejudice’
and subject only to the Constitution and the law. S 32(1)(b) further provides that no one may
interfere ‘improperly’ with the NPA in the performance of its duties and functions. S 33(2)
reaffirms that the Minister must exercise final responsibility over the NPA and obliges the
NDPP, at the request of the Minister, to furnish the latter with information or a report with
regard to any case and to provide the Minister with reasons for any decision taken. S 22(2)(c)
states that, in exercising the review power to prosecute or not to prosecute, the NDPP may
advise the Minister ‘on all matters relating to the administration of justice’. The SCA decision
stands in sharp contrast to the decision of the High Court in the matter. In Zuma v NDPP
para 89, Judge Nicholson stated that there must not be a hint of a relationship between the
Minister of Justice and the NDPP.
285 Democratic Alliance para 16.
286 Democratic Alliance para 26.
287 Democratic Alliance para 49.
288 De Vos, P (2008, 8 December) National security, the last refuge of scoundrels? Constitutionally
Speaking available at http://constitutionallyspeaking.co.za/national-security-the-last-refuge-of-
scoundrels/.
Separation of powers and
Chapter 9 institutions
7.1 Introduction
7.2 Independence of Chapter 9 institutions
7.3 The Public Protector
7.4 The Auditor-General
Summary
7.1 Introduction
Figure 7.1 Separation of powers and Chapter 9 institutions
Chapter 9 of the Constitution establishes certain institutions that are
designed to support and strengthen constitutional democracy. These
institutions are: 1
• the Public Protector
• the South African Human Rights Commission
• the Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities
• the Commission for Gender Equality
• the Auditor-General
• the Electoral Commission.
Chapter 9 institutions ‘share two roles: that of checking government (or, in
the language of the Constitution, of contributing to accountable government
or ‘monitoring’ government), and that of contributing to the transformation
of South Africa into a society in which social justice prevails’.2 These
institutions are independent non-judicial institutions and do not play the
same role as the judiciary in enforcing the Constitution. It is therefore not
clear how these institutions fit into the traditional separation of powers
model: while they are independent from the other branches of government,3
they are also accountable to the National Assembly (NA), one of the other
branches of government.4 The institutions can make findings and
recommendations but, unlike the judiciary, they do not have the power to
review and set aside legislation or the actions of the executive. However,
they are ‘important tools to monitor the state’s realisation of individuals’
rights in terms of its constitutional obligations’.5
Regardless of this uncertain position in the separation of powers
architecture, the role of these institutions is essential in the democracy
emerging from a history of discrimination, oppression and lack of
accountability as they assist the various organs of state to adhere to the
values and principles of the new constitutional dispensation.6 To fulfil this
task, it is important that these institutions should enjoy a degree of
independence.
The Public Protector and the Auditor-General are of great significance for
the monitoring of the exercise of state authority. They play a fundamental
role in the monitoring, investigation and reporting on government conduct.
SUMMARY
8.1.1 Introduction
An important characteristic of the Constitution is that it not only divides
power vertically between the legislative, executive and judicial branches of
government in terms of the separation of powers doctrine. It also divides
power horizontally between the national, provincial and local spheres of
government, thus establishing a quasi-federal system of government.
Section 40(1) of the Constitution provides in this respect that ‘[i]n the
Republic, government is constituted as national, provincial and local
spheres of government which are distinctive, interdependent and
interrelated’. In this chapter we deal with this horizontal division of power.
We identify the exact powers allocated to each sphere of government,
address the relationship between the different spheres of government and
explore the constitutional management of conflicts between the various
spheres of government.
It is important to understand that in a federal or quasi-federal system, the
division of power between different spheres of government may be based
either on a divided model of federalism or an integrated model of
federalism.
In a divided model of federalism, the subject matters in respect of
which policies and laws may be made are strictly divided between the
different levels or spheres of government. Each level or sphere, therefore,
has its own exclusive powers and there are very few, if any, concurrent or
shared powers. In this model, the policies and laws made by each level or
sphere will also be implemented and administered by their own separate
civil services and departments of state. Australia, Canada and the United
States are examples of a divided model of federalism.1
In an integrated model of federalism, some subject matters are
allocated exclusively to one level or sphere of government, but most are
concurrent or shared. The subject matters in respect of which policies and
laws may be made, therefore, are not strictly divided between the different
levels or spheres of government. In this model, the framework policies and
laws made by the central level or sphere of government may be
complemented by provincial or local policies and laws and must be
implemented and administered by the provincial or local spheres of
government. Germany and South Africa are examples of an integrated
model of federalism.2
When we say that South Africa broadly adheres to an integrated model
of federalism, we are not saying that South Africa is a fully fledged federal
state. Throughout this chapter we will raise questions about the nature of
the relationship between the three spheres of government. We contend that
while the South African system displays several characteristics of a federal
system, it could probably best be described as a quasi-federal system. In a
quasi-federal system, the national government retains more power and
influence over law making and policy formulation than is usually the case
in a fully fledged federal system.
Given the overlap between the legislative and executive authority of the
national, provincial and local spheres of government, the Constitution
makes provision for a system of intergovernmental co-ordination to manage
any potential conflict between the various spheres exercising concurrent
competences. This forms the heart of the system of co-operative
government. The most important rules governing this system are set out in
Chapter 3 of the Constitution. Chapter 3 of the Constitution entrenches the
notion of co-operative government which recognises the distinctiveness,
interdependence and interrelatedness of the national, provincial and local
spheres of government.26
All spheres of government – national, provincial and local – are required
to observe and adhere to the principles of co-operative government set out
in Chapter 3 of the Constitution.27 Particularly important in this context are
the principles set out in section 41. This section provides, inter alia, that
‘[a]ll spheres of government and all organs of state within each sphere’
must:
• respect the constitutional status, institutions, powers and functions of
government in the other spheres 28
• not assume any power or function except those conferred on them in
terms of the Constitution 29
• exercise their powers and perform their functions in a manner that does
not encroach on the geographical, functional or institutional integrity of
government in another sphere 30
• co-operate with each other in mutual trust and good faith.31
In addition, Chapter 3 of the Constitution also provides that an organ of
state involved in an intergovernmental dispute must make every reasonable
effort to settle the dispute by means of mechanisms and procedures
provided for that purpose, and must exhaust all remedies before
approaching a court of law to settle the dispute.32 There has been some
confusion about which bodies are bound by these provisions. Do they apply
only to those organs of state that exercise legislative and executive power in
the national, provincial and local spheres of government or do they also
apply to those organs of state that are supposed to be independent such as
the Electoral Commission, the National Prosecuting Authority (NPA)and
the South African Human Rights Commission (SAHRC)?
After some ambivalence, there is now relative certainty as to the bodies
bound by Chapter 3. In Independent Electoral Commission v Langeberg
Municipality,33 the Constitutional Court held that the Independent Electoral
Commission (IEC) is an organ of state as defined in section 239 of the
Constitution. However, it is not part of government as it is not an organ of
state in the national sphere of government. Chapter 9 entrenches the
independence of the institutions identified in this Chapter and hence these
institutions cannot simultaneously be independent of and yet part of
government.34 Thus, a dispute between a Chapter 9 institution and an organ
of government cannot be regarded as an intergovernmental dispute
requiring compliance with Chapter 3. The Court stated that while it is
preferable for organs of state not to litigate against each other readily, there
was no obligation on Chapter 9 institutions to follow the prescripts of
Chapter 3.35
In Uthukela District Municipality and Others v President of the Republic
of South Africa and Others, the Constitutional Court confirmed that
municipalities are organs of state in the local sphere of government while
the President and the national Ministers are organs of state in the national
sphere.36 Thus, a dispute involving these spheres would, prior to being
referred to court, have to comply with Chapter 3. For these purposes, the
provincial executive cannot be distinguished from the national executive
and the provincial executive will be regarded as an organ of state in the
provincial sphere.
The essence of Chapter 3 was described by the Constitutional Court as
requiring that disputes ‘where possible be resolved at a political level rather
than through adversarial litigation’.37 In Uthukela, the Court held that it
will rarely decide an intergovernmental dispute ‘unless the organs of State
involved in the dispute have made every reasonable effort to resolve it at a
political level.’ 38 The Court held that the duty to avoid legal proceedings
placed a two-fold obligation on all organs of state. They had to make every
reasonable effort to settle the dispute through the mechanisms provided and
to exhaust all other remedies before they approached the courts.39 The
Court will decline to hear the matter if there is a failure to comply with this
obligation. In effect, the matter will be referred back to the parties to
comply with their obligations in terms of Chapter 3.
8.2.1 Introduction
The division of legislative and executive authority between the three
spheres of government is one of the key features of the system of
multisphere government adopted in the Constitution. In this part of the
chapter, we discuss the division of legislative and executive authority
between the national and provincial spheres of government. Although there
is a large overlap between the matters over which each sphere has, first,
legislative authority and, second, executive authority, these matters are not
necessarily identical. For example, additional administrative powers may be
delegated to provincial executives by the national legislature.58 This would
empower provincial executives to exercise administrative powers in terms
of such legislation even though the provincial legislatures may not be
empowered to legislate on that matter. Nevertheless, to a large degree,
provincial executives have authority over the same subject matter as
provincial legislatures. Unless indicated otherwise, we will deal with these
matters as if they overlap. Before discussing this further, however, it will be
helpful to discuss briefly the objectives and structure of provincial
government.
8.2.2 The objectives and structure of provincial
government
South Africa is divided into nine provinces, namely the Eastern Cape, Free
State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern
Province, North West and Western Cape.59 The Constitution regulates the
governance of the provinces in Chapter 6 and sets out the structure, powers
and functions of the provincial legislatures 60 as well as the provincial
executive authorities.61 Judging from the structure and powers bestowed by
the Constitution on the nine provinces, provinces are required to fulfil at
least three important interrelated but distinct functions:
• First, provinces provide a close link between voters and their
government to ensure that the government addresses the particular
concerns and unique challenges and needs of discrete geographical areas.
• Second, provinces are required to implement national policies and plans
relating to important service delivery areas such as housing, health care,
policing and education.
• Third, provinces must oversee the smooth running of the local sphere of
government within the boundaries of the province.
To a large extent the structures and functions of the nine provinces mirror
one another. Each province is entitled to pass a provincial constitution,62
and the Western Cape Province has indeed done so.63 However, such a
constitution cannot bestow substantially more powers on a province or
deviate from the basic structure of governance of the province as set out in
the national Constitution.64 The constitution-making power is not a power
to constitute a province with powers, functions or attributes in conflict with
the overall constitutional framework established by the national
Constitution. The provinces remain creatures of the national Constitution
and cannot, through their provincial constitution-making power, alter their
character or their relationship with the other levels of government.65 When
discussing the structure and functioning of provinces, we shall therefore
focus on the provisions of the 1996 Constitution only.
The legislative authority of each province is vested in its provincial
legislature. The provincial legislature has the legislative power to pass a
provincial constitution and to pass legislation for its province with regard to
any matter:
• within a functional area listed in Schedule 4 66
• within a functional area listed in Schedule 5 67
• outside those functional areas and that is ‘expressly assigned’ to the
province by national legislation 68
• for which a provision of the Constitution ‘envisages’ the enactment of
provincial legislation.69
A provincial legislature may also assign any of its legislative powers to a
municipal council in that province.70 In addition, the legislature of a
province may change the name of that province by adopting a resolution
with a supporting vote of at least two-thirds of its members, requesting
Parliament to change the name of that province.71
Apart from the legislative powers set out above, the Constitution also
provides that provincial legislation with regard to any matter that is
reasonably necessary for, or incidental to, the effective exercise of a power
concerning any matter listed in Schedule 4, is for all purposes legislation
with regard to a matter listed in Schedule 4.72
The members of provincial legislatures are elected in accordance with
the same electoral system that applies to the election of members of the
National Assembly (NA). The size of each of the legislatures is determined
in terms of a formula prescribed by national legislation relating to the
population size of that province, but cannot be smaller than 30 and no larger
than 80 members.73 The Western Cape legislature’s size is determined by
the Western Cape Constitution.74 The requirements for membership of
provincial legislatures, as well as the loss of membership, are identical to
those prescribed for the NA.75 Provincial legislatures are also elected for a
term of five years and can be dissolved before the expiry of that term for
exactly the same reasons as those that apply to the NA.76
As we may recall, a province’s permanent delegates to the NCOP are not
members of the provincial legislature. However, such permanent delegates
to the NCOP may attend and may speak in their provincial legislature and
its committees, but may not vote. The legislature may require a permanent
delegate to attend the legislature or its committees.77 The rules regarding
the functioning of provincial legislatures also mirror those prescribed for
the NA.
The executive authority of a province is vested in the Premier of that
province, whose role mirrors that of the President at national level.
Obviously, though, Premiers do not enjoy the head of state powers
bestowed on the President by section 84 of the Constitution. The Premier
exercises executive authority, together with the other members of the
Executive Council, by:
• implementing provincial legislation in the province
• implementing all national legislation in the functional areas listed in
Schedule 4 or 5 except where the Constitution or an Act of Parliament
provides otherwise
• administering in the province national legislation outside the functional
areas listed in Schedules 4 and 5, the administration of which has been
assigned to the provincial executive in terms of an Act of Parliament
• developing and implementing provincial policy
• co-ordinating the functions of the provincial administration and its
departments
• preparing and initiating provincial legislation
• performing any other function assigned to the provincial executive in
terms of the Constitution or an Act of Parliament.78
Over and above the explicit powers bestowed on the Premier and his or her
executive, they also enjoy any additional powers that have been bestowed
on them by the national legislature.
A province has executive authority in terms of those functional areas
listed in Schedules 4 and 5 of the Constitution, but ‘only to the extent that
the province has the administrative capacity to assume effective
responsibility’.79 The Constitution enjoins the national government to
assist provinces to develop the administrative capacity required for the
effective exercise of their powers and performance of their functions
through legislative and other measures.80 Any dispute concerning the
administrative capacity of a province in regard to any function must be
referred to the NCOP for resolution within 30 days of the date of the
referral to the Executive Council.81 A member of the Executive Council of
a province may assign any power or function that is to be exercised or
performed in terms of an Act of Parliament or a provincial Act to a
municipal council. An assignment must be in terms of an agreement
between the relevant Executive Council member and the municipal council.
It must be consistent with the Act in terms of which the relevant power or
function is exercised or performed, and it takes effect on proclamation by
the Premier.82
Premiers are elected by the provincial legislature.83 Premiers can also be
removed in two ways:
• First, Premiers can be impeached in terms of section 130(3) of the
Constitution for a serious violation of the Constitution or the law, serious
misconduct or inability to perform the functions of office.
• Second, in terms of section 141 of the Constitution, a provincial
legislature may remove a Premier for purely political reasons by
instituting a motion of no confidence in the Premier.
CRITICAL THINKING
8.3.1 Introduction
As we have already seen, an important aspect of the Constitution is that it
distributes legislative and executive authority between the national,
provincial and local spheres of government. In the first part of this chapter,
we discussed the division of legislative and executive authority between the
national sphere of government, on the one hand, and the provincial spheres
of government, on the other. In this part of the chapter, we discuss the
division of legislative and executive authority between the national and
provincial spheres of government, on the one hand, and the local sphere of
government, on the other. Before doing so, however, it will be helpful to
discuss briefly the objectives and structure of local government.
An assigning agent may set the parameters for the exercise of the assigned
authority in the legislative act of assignment. The assignment is intended to
be a complete transfer of the function and it entails the final decision-
making power in individual matters. Accordingly, the assignment must
conform to the requirements of section 151(4) of the Constitution. The
assignment of powers and functions to municipalities by legislation or by an
executive act or by agreement is regulated by the Local Government:
Municipal Systems Act.
8.4.1 Introduction
Apart from dividing legislative and executive power between the national,
provincial and local spheres of government, the Constitution also divides
fiscal powers – the power to collect and spend public funds – between the
three spheres of government. Chapter 13 of the Constitution sets out the
constitutional provisions regulating fiscal powers. Chapter 13 is sometimes
referred to as the financial constitution. Apart from regulating the power to
collect and spend public funds, Chapter 13 of the Constitution also
establishes two important regulatory bodies, namely the central bank and
the Fiscal and Financial Commission (FFC).
CRITICAL THINKING
Apart from the provisions set out above, section 228(2) of the Constitution
also provides that a provincial legislature’s power to impose taxes, levies,
duties and surcharges may not be exercised in a way that materially and
unreasonably prejudices national economic policies, economic activities
across provincial boundaries, or the mobility of goods, services, capital or
labour. In addition, a provincial legislature’s power to impose taxes must be
regulated by an Act of Parliament which may be passed only after any
recommendations made by the FFC have been considered.215 The Act of
Parliament referred to in this section is the Provincial Tax Regulation
Process Act.216
The Provincial Tax Regulation Process Act restricts a provincial
legislature’s power to introduce a new provincial tax. This is because it
essentially provides that if a province wishes to introduce a new provincial
tax, it must first submit a proposal to the Minister of Finance who, after
consulting the Budget Council, must introduce a Bill into the NA to
regulate the new provincial tax. Given the restrictions imposed by this Act,
it is not surprising that no new provincial taxes have ever been introduced.
In so far as municipalities are concerned, section 229(1) of the
Constitution provides that a municipality may impose:
• rates on property and surcharges on fees for services provided by or on
behalf of the municipality
• if authorised by national legislation, other taxes, levies and duties
appropriate to local government or to the category of local government
into which the municipality falls.
Like the provincial legislatures, however, municipalities may not impose
income tax, value-added tax, general sales tax or customs duty. Apart from
the provisions set out above, section 229(2) of the Constitution also
provides that a municipality’s power to impose rates on property, surcharges
on fees or other taxes, levies or duties may not be exercised in a way that
materially and unreasonably prejudices national economic policies,
economic activities across provincial boundaries, or the mobility of goods,
services, capital or labour.
In addition, a municipality’s power to impose rates on property,
surcharges on fees or other taxes, levies or duties may be regulated by
national legislation which may be passed only after organised local
government and the FFC have been consulted and any recommendations
made by the FFC have been considered.217 The national legislation
referred to in this section is the Local Government: Municipal Property
Rates Act 218 and the Municipal Fiscal Powers and Functions Act.219 The
Municipal Property Rates Act regulates the municipalities’ power to levy
property rates and the Municipal Fiscal Powers and Functions Act regulates
their power to levy surcharges on fees.
PAUSE FOR REFLECTION
8.4.7 Procurement
8.4.7.1 Introduction
Section 217 of the Constitution makes it imperative for an organ of state in
the national, provincial or local sphere to contract for goods and services in
a manner that is fair, equitable, transparent, competitive and cost-effective.
However, organs of state are not prevented from implementing a
procurement policy providing for categories of preferences in the allocation
of contracts and the protection or advancement of persons or categories of
persons previously disadvantaged by unfair discrimination.247 The section
goes on to require national legislation to be enacted to prescribe a
framework to implement the policy of preference to previously
disadvantaged persons. The Preferential Procurement Policy Framework
Act (PPPFA) 248 is the empowering legislation that seeks to achieve this
objective.
In Millennium Waste Management (Pty) Ltd. v Chairperson of the Tender
Board: Limpopo Province and Others,249 the SCA required tenders to be
evaluated in a manner that advances the five constitutional values identified
in section 217 of the Constitution. In this case, the appellant had submitted
its tender which met all the specifications of the advertisement. However,
the appellant had inadvertently omitted to sign the declaration of interest,
but had inserted the name of the relevant person and had filled in the
relevant information. A tender committee on behalf of the Limpopo
Department of Health and Social Development disqualified the applicant
and finally awarded the tender to a consortium called TTP. A particularly
concerning aspect was that TTP’s bid for the removal, treatment and
disposal of hospital waste was R3 600 000 per month which was
significantly more than appellant’s tender which would have cost the
Department R400 000 per month.
The Tender Board argued that the signing of the declaration of interest
was peremptory and as the appellant had not signed it, the Tender Board
was obliged to disqualify the appellant.
The SCA held that the decision to award the tender was administrative
action and had to comply with the provisions of the Promotion of
Administrative Justice Act (PAJA),250 with section 217 of the Constitution
and with the PPPFA.251 Interpreting the regulations in terms of which the
Tender Board was acting, the SCA held that the Tender Board had the
power to condone non-compliance with procedural defects in the
application.252 However, the SCA went on to hold that ‘our law permits
condonation of non-compliance with peremptory requirements in cases
where condonation is not incompatible with public interest and if such
condonation is granted by the body in whose benefit the provision was
enacted’.253 The SCA stated further that the condonation of the failure to
sign would have been in the public interest as it would have facilitated
competitiveness.254 A condonation in this instance would have served the
broader constitutional values of fairness, competiveness and cost-
effectiveness.255
Importantly, the SCA held that whether the appellant’s tender constituted
an acceptable tender in terms of the PPPFA must be construed in the
context of a system that is fair, equitable, transparent, competitive and cost-
effective.256 In other words, the constitutional values must be the prism
through which the enabling legislation must be interpreted. The SCA held
the term ‘tender’ must be given a relatively narrow meaning and cannot
mean that the tender must comply with conditions which are immaterial,
unreasonable or unconstitutional.257 The SCA concluded that by insisting
on disqualifying the appellant for an innocent omission, the Tender Board
had acted unreasonably.258 The SCA set aside the decision of the Tender
Board and ordered the Tender Board to reconsider and adjudicate on the
bids submitted by the appellant and TTP afresh. The Court thus assessed the
entire tender process against the five values identified in the Constitution
and not just the final evaluation process of the shortlisted candidates.
SUMMARY
The Constitution does not only divide power vertically, but also
horizontally between the national, provincial and local spheres of
government. This horizontal division of power establishes a quasi-federal
system of government. Power is divided largely according to an integrated
model of federalism in which the subject matters in respect of which
policies and laws may be made are not strictly divided between the different
levels or spheres of government but are shared between them. To ensure
that this system works optimally, the Constitution also establishes the
principle of co-operative government, requiring the various spheres of
government to work together regardless of the political party in power
nationally, provincially or at local government level. The National Council
of Provinces (NCOP), the second House of the national legislature, plays an
important role in co-ordinating the legislative activities of the three spheres
of government.
The structures of government for the nine provinces largely mirror that
of the national sphere. A Premier elected by the provincial legislature heads
the provincial executive and can also be removed by the provincial
legislature. A province has executive authority in terms of those functional
areas listed in Schedules 4 (concurrent powers shared with the national
executive) and 5 (exclusive powers) of the Constitution. Provincial
legislatures operate largely in the same manner and according to the same
principles as the national legislature. However, provincial legislatures only
have one House and not two although their interests are represented in the
NCOP at national level. When both the national legislature and the
provincial legislature pass legislation on one of the areas listed in
Schedule 4, the provincial legislation shall prevail except if one of the
criteria set out in section 146 of the Constitution is present in which case
the national legislation shall prevail. It will only be permissible in
exceptional circumstances for the national legislature to pass legislation
relating to one of the areas exclusively reserved for provinces in Schedule 5
if this is authorised by section 44(2) of the Constitution. When determining
whether the subject matter of a Bill falls within Schedule 4 or Schedule 5,
we must apply the pith and substance test. This test must be distinguished
from the substantial measure test used to decide how to tag a national Bill
to decide on the procedure to be used to pass it.
In the constitutional dispensation, local government fulfils an important
role. Municipalities thus enjoy original and constitutionally entrenched
powers, functions, rights and duties that may be qualified or constrained by
law and only to the extent to which these are set out in section 152(1) of the
Constitution. Section 155 of the Constitution distinguishes between three
different categories of municipalities, namely:
• category A municipalities with exclusive municipal executive and
legislative authority in their area and which are referred to as
metropolitan municipalities
• category B municipalities which share their municipal executive and
legislative authority in their area with a category C municipality and
which are referred to as local municipalities
• category C municipalities with municipal executive and legislative
authority in an area which includes more than one municipality and
which are referred to as district municipalities.
The Constitution determines that a municipality has executive authority in
respect of and has the right to administer the local government matters
listed in Part B of Schedule 4 and Part B of Schedule 5 and any other matter
assigned to it by national or provincial legislation. In addition,
municipalities may make and administer by-laws for the effective
administration of the matters which they have the right to administer.
Conflicts between national and provincial laws and municipal laws are
resolved in terms of section 156(3) of the Constitution. This section
provides simply that, subject to section 151(4), a by-law that conflicts with
national or provincial legislation is invalid. An important consequence of
this provision is that a municipality must exercise its legislative and
executive authority within the parameters set by national or provincial
legislation. In the absence of any national or provincial law regulating a
local government matter, however, a municipality is free to determine the
content of its legislative and executive decisions.
The financial arrangements in the Constitution tilt power decisively in
favour of the national sphere of government as the power to collect revenue
is vested primarily in the national sphere of government. This is because
Chapter 13 of the Constitution restricts the power of the provincial and
local spheres of government to impose taxes. Although the Constitution
restricts the power of the provincial and local spheres of government to
impose taxes and thus to raise revenue, it compensates them for this loss by
granting them a right to an equitable share of revenue collected nationally.
Section 215(1) of the Constitution provides that the national, provincial and
municipal budgetary processes must promote transparency, accountability
and the effective financial management of the economy, debt and the public
sector. Section 217 of the Constitution also makes it imperative for an organ
of state in the national, provincial or local sphere to contract for goods and
services in a manner that is fair, equitable, transparent, competitive and
cost-effective.
9.1 Introduction
9.2 The structure of Bill of Rights litigation
9.3 The application of the Bill of Rights
9.3.1 Who is entitled to claim the rights in the Bill of Rights?
9.3.1.1 Introduction
9.3.1.2 Natural persons
9.3.1.3 Juristic persons
9.3.1.4 Standing to enforce rights
9.3.2 Who is bound by the rights in the Bill of Rights?
9.3.2.1 Introduction
9.3.2.2 The direct vertical application of the Bill of Rights
9.3.2.2.1 Introduction
9.3.2.2.2 All organs of state
9.3.2.3 The direct horizontal application of the Bill of Rights
9.3.2.4 The indirect application of the Bill of Rights
9.3.2.4.1 Introduction
9.3.2.4.2 The indirect application of the Bill of Rights to
legislation
9.3.2.4.3 The indirect application of the Bill of Rights to the
common law and customary law
Summary
9.1 Introduction
The South African Bill of Rights – constructed in a manner to give effect to
the transformative vision of the Constitution – sets out a unique human
rights vision. Its breadth of application – to both the state and, in many
cases, to private parties – and the range of rights protected in it, establishes
the Bill of Rights as a post-liberal text aimed at facilitating the social and
economic transformation of South Africa while protecting the human
dignity of all. However, before we look at the various rights protected by
the Bill of Rights, it is necessary to deal with several important technical
issues regarding Bill of Rights adjudication. This is because the structure of
Bill of Rights litigation differs from litigation dealing with other alleged
breaches of the Constitution.
When confronted with the question of whether law or conduct is in
breach of the Bill of Rights, several preliminary questions arise. First, a
court must ask whether the person or organisation which claims that their
rights have been infringed is entitled to the protection provided by the Bill
of Rights and whether the person or organisation which wishes to approach
the court has standing to bring the case. While most of the rights in the Bill
of Rights are granted to everyone, including non-citizens, some are
specifically restricted. There are also complicated rules to determine
whether juristic persons can claim the protection of the Bill of Rights.
Once the court has established that the person or organisation which
claims that their rights have been infringed is covered by the Bill of Rights,
it must ask whether the person or organisation which is alleged to have
infringed the rights is bound by the Bill of Rights. The South African Bill of
Rights does not bind only the state but, when applicable in accordance with
complicated provisions in the Constitution, also private individuals and
organisations.
After the court has established that the rights of a natural or juristic
person have been infringed, it has to determine whether the infringement is
justifiable in terms of the limitation clause set out in section 36. If the court
finds that the limitation is justifiable, the infringement is ‘saved’ and the
law or conduct is constitutionally valid. However, if the court finds that the
limitation is not justifiable, then an infringement cannot be saved and the
law or conduct is unconstitutional and invalid.
Law or conduct which unjustifiably infringes the Bill of Rights must be
declared invalid. Apart from a declaration of invalidity, however, there are a
number of other constitutional remedies a court may issue. Among these are
declaratory orders, prohibitory interdicts, mandatory interdicts, structural
interdicts, constitutional damages and meaningful engagement.
This chapter, as well as chapters 10 and 11, deal with the technical
questions relating to Bill of Rights adjudication. While we will discuss the
substantive scope and content of the various rights in subsequent chapters,
it is important first to answer the relevant preliminary questions about the
manner in which Bill of Rights adjudication should proceed. These
questions include the following:
• Who can claim the rights protected in the Bill of Rights and who is
bound to respect the same rights?
• Can the rights be claimed only by people or also by organisations, and if
the latter, when?
• Are the rights only binding on the state or are private parties also bound
to respect the rights?
• To what extent and how can rights be legally limited and in which
situations?
• If there is an infringement of a right, how can that infringement be
remedied to ensure that the person whose rights have been infringed can
be assisted?
Classifying rights
As we have already seen, the substantive provisions of
the Bill of Rights are those provisions that regulate the
actual substance of the rights that are entrenched and
protected in the Bill of Rights. These rights may be
classified in a number of different ways and some rights
may fall into more than one category.
One of the most widely used methods of classifying
rights is to draw a distinction between civil and political
rights, on the one hand, and social and economic rights on
the other hand. This classification is based on the
distinction drawn between the rights protected in the
International Covenant on Civil and Political Rights
(ICCPR)6 and the rights protected in the International
Covenant on Economic, Social and Cultural Rights
(ICESCR).7
Civil and political rights are aimed at protecting people
from unlawful interference by the state, private
organisations and individuals and at guaranteeing the
ability of everyone to participate fully in the civil and
political life of the state. Civil and political rights include the
right to equality, the right to freedom of expression, the
right to a fair trial, the right to freedom of assembly and the
right to elections and to vote.8
Social and economic rights include the right to
education, the right to housing, the right to health and the
right to social security. They impose an obligation on the
state not to interfere with the existing enjoyment of these
rights and, where applicable, to take positive steps to
provide people with the resources and the services they
need to live a decent, fulfilling and minimally good life.9
Another common method of classifying human rights is
to draw a distinction between first generation, second
generation and third generation rights. This classification is
based on the historical development of human rights.
First generation rights are the oldest. They arose in
the eighteenth century and were included in the American
Bill of Rights (1789–1791) and the French Declaration of
the Rights of Man and Citizen (1789). First generation
rights consist largely of traditional civil and political rights.
Sometimes they are also referred to as blue rights.10
Second generation rights arose at the end of the
nineteenth century and the beginning of the twentieth
century. They were included in the 1931 Constitution of
Spain and the 1936 Constitution of the Union of Soviet
Socialist Republics. Second generation rights consist
largely of social and economic rights. Sometimes they are
also referred to as red rights.11
Third generation rights are the most recent and arose
towards the end of the twentieth century. Third generation
rights include the right to self-determination, the right to
development and the right to a healthy environment.
Sometimes they are also referred to as green rights.12
While the classifications set out above provide us with
some insights into the history and nature of the rights
protected in the Bill of Rights, it is important to note that the
Bill of Rights itself does not classify or categorise rights in
any of these ways. Although the Bill of Rights contains
examples of the different categories or generations of
rights, it does not distinguish in any way between the
various rights.
Implicit, therefore, in the Bill of Rights is the idea that our
Constitution does not create a hierarchy of rights.13 Rather
than drawing hard and fast distinctions between the rights,
the courts have been mindful to show the rights in the Bill
of Rights as being interrelated, interdependent and
mutually supporting.
9.3.1.1 Introduction
In most cases, ‘everyone’ can claim the rights contained in the Bill of
Rights. This includes everyone present in South Africa as well as non-
citizens. A limited number of rights are qualified in that only ‘citizens’,18
‘children’ 19 or ‘detained’ persons can claim them.20 When a specific
provision states that ‘everyone’ can claim the right, it usually means that
natural persons 21 can claim the right and, in some cases, also juristic
persons.22 However, as we shall see, not all rights can be claimed by
juristic persons.
COUNTER POINT
9.3.2.1 Introduction
Once a court has determined who can claim rights in terms of the Bill of
Rights, it has to ask a second question, namely against whom can these
rights be claimed. In other words, the court has to ask who is bound to
respect the rights claimed by either a natural or juristic person. Although
‘everyone’ is entitled to claim the benefit of the rights (or at least most of
the rights) in the Bill of Rights, not everyone is bound by every right
contained in the Bill of Rights. This is because while the Bill of Rights is
always binding on the state, it is not always binding on private persons.
When it comes to the question of who is bound by the Bill of Rights, it is
important to distinguish between the direct application of the Bill of Rights
and the indirect application of the Bill of Rights:
• When the Bill of Rights applies directly, the purpose is to determine
whether the ordinary rules of law (legislation, common law and
customary law) are consistent with the Bill of Rights. If they are not, the
Bill of Rights overrides the ordinary rules of law. When the Bill of
Rights applies directly, it also generates its own set of special remedies,
for example reading down or reading in.58
• When the Bill of Rights applies indirectly, the purpose is to determine
whether the ordinary rules of law promote the values of the Bill of
Rights. If they do not, the Bill of Rights does not override the ordinary
law or generate its own special remedies. Instead, the Bill of Rights is
used to develop the rules and remedies of the ordinary law to avoid any
inconsistency between the ordinary law and the Bill of Rights.59
Apart from distinguishing between the direct and indirect application of the
Bill of Rights, it is also important to distinguish between the vertical
application of the Bill of Rights and the horizontal application of the Bill of
Rights:
• When the Bill of Rights applies vertically, it confers rights on private
persons and imposes obligations on the state to respect, protect, promote
and fulfil the rights in the Bill of Rights. It does not impose these
obligations on private persons. In other words, when the Bill of Rights
applies vertically, only the state is bound by the Bill of Rights. An
important consequence of this approach is that the Bill of Rights may be
applied directly to a legal dispute only if one of the parties to that dispute
is the state. We refer to a dispute in which one of the parties is the state
as a vertical dispute.60
• When the Bill of Rights applies horizontally, it not only confers rights
on private persons, but also imposes obligations on them to respect the
rights in the Bill of Rights, at least in certain circumstances. In other
words, when the Bill of Rights applies horizontally, both the state and
private persons are bound by the Bill of Rights. An important
consequence of this approach is that the Bill of Rights may be applied
directly to a legal dispute even if both of the parties to that dispute are
private persons. We refer to a dispute in which neither of the parties is
the state as a horizontal dispute.61
In South Africa, unlike in most other constitutional democracies, the Bill of
Rights applies not only directly and indirectly, but also vertically and
sometimes horizontally. Section 8(1) of the Constitution governs the direct
vertical application of the Bill of Rights while section 8(2) governs the
direct horizontal application. Section 39(2) of the Constitution governs the
indirect vertical and horizontal application of the Bill of Rights.
COUNTER POINT
9.3.2.2.1 Introduction
Section 8(1) of the Constitution governs the direct vertical application of
the Bill of Rights. This section stipulates in unqualified terms that ‘[t]he
Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state’.
Despite the fact that section 8(1) of the Constitution provides that the
Bill of Rights applies directly to ‘all law’, the Constitutional Court has held
that section 8(1) does not regulate the direct application of the Bill of Rights
to disputes between private persons that are governed by the common law
or customary law. This is because section 8(2) of the Constitution regulates
the direct application of the Bill of Rights to these horizontal disputes.64
For the same reasons, section 8(1) does not regulate the direct
application of the Bill of Rights to the judiciary when it is called on to
resolve a dispute between private parties that is governed by the common
law or customary law. This is because section 8(2) of the Constitution also
regulates the direct application of the Bill of Rights to the judiciary in these
horizontal disputes.65
The fact that section 8(2) rather than section 8(1) regulates the direct
application of the Bill of Rights to horizontal disputes was confirmed by the
Constitutional Court in its judgment in Khumalo and Others v Holomisa.66
The facts of this case were as follows. The respondent, who was a
prominent politician, sued the appellants, who were the publishers of a
newspaper, for defamation. The appellants, however, raised an exception to
the respondent’s claim. The exception was that the common law rules of
defamation infringed the constitutional right to freedom of expression
guaranteed in section 16 of the Constitution because they did not impose an
obligation on the plaintiff to prove that the defamatory statements were
false. Instead, they imposed an obligation on the defendant to prove that
they were true.
The Constitutional Court dismissed the exception. In arriving at this
decision, however, the Constitutional Court had to answer a number of
questions. One of these was whether section 16 of the Constitution applied
directly to the dispute even though it was governed by the common law and
neither of the parties was an organ of state.
To answer this question, the Constitutional Court stated it had to deal
with two issues:
• first, whether section 8(1) or section 8(2) of the Constitution governed
the direct horizontal application of the Bill of Rights
• second, if section 8(2) governed the direct horizontal application of the
Bill of Rights, whether section 16 satisfied the requirements of
section 8(2).67
In so far as the first issue was concerned, the Constitutional Court held that
section 8(2) and not section 8(1) governed the direct horizontal application
of the Bill of Rights. In arriving at its conclusion, the Constitutional Court
began by noting that sections 8(1) and 8(2) of the Constitution distinguish
between two categories of persons and institutions bound by the Bill of
Rights. Section 8(1) binds the legislature, executive, judiciary and all
organs of state without qualification, while section 8(2) provides that
natural and juristic persons are bound by the provisions of the Bill of
Rights, but only ‘to the extent that it is applicable, taking into account the
nature of the right and the nature of the duty imposed by the right’.68
Once a court has determined that a natural person is bound by a
particular provision of the Bill of Rights, the Constitutional Court noted
further, section 8(3) of the Constitution provides that the court must apply
and if necessary develop the common law to the extent that legislation does
not give effect to the right. In addition, it also provides that the rules of the
common law may be developed so as to limit a right as long as the
limitation is consistent with the provisions of section 8(3)(b).69
If section 8(1) of the Constitution governed the direct application of the
Bill of Rights to a horizontal dispute, the Constitutional Court went on to
note, the Bill of Rights would apply directly to horizontal disputes in all
circumstances and section 8(2) read together with section 8(3) would have
no purpose. To avoid such an absurd result, the direct application of the Bill
of Rights to horizontal disputes had to be governed by section 8(2) and not
by section 8(1).70
In so far as the second issue was concerned, the Constitutional Court
noted that the appellants were members of the media who were expressly
identified as bearers of constitutional rights to freedom of expression and
that there could be no doubt that the law of defamation does affect the right
to freedom of expression. The Constitutional Court noted further:
Given the intensity of the constitutional right in question,
coupled with the potential invasion of that right which
could be occasioned by persons other than the state or
organs of state, it is clear that the right to freedom of
expression is of direct horizontal application in this case
as contemplated by section 8(2) of the Constitution.71
Apart from these exceptions, section 8(1) of the Bill of Rights regulates the
direct application of the Bill of Rights:
• to disputes between the state and private parties that are governed by
legislation, the common law or customary law (‘all law’)
• to disputes between private parties that are governed by legislation, but
not by the common law or customary law.
COUNTER POINT
An interpretation of the Khumalo judgment
Following the Constitutional Court’s judgment in Khumalo,
it seems to be fairly clear that section 8(2) of the
Constitution regulates the direct application of the Bill of
Rights to disputes between private parties that are
governed by the common law or customary law. It is not
entirely clear, however, whether section 8(1) or section 8(2)
regulates the direct application of the Bill of Rights to
disputes between private parties that are governed by
legislation.
Although the judgment in Khumalo deals with the
common law of defamation, Woolman argues that the
Constitutional Court held, by implication, that section 8(2)
regulates the direct application of the Bill of Rights to
disputes between private parties that are governed not only
by the common law or customary law, but also by
legislation. In other words, section 8(2) regulates the direct
application of the Bill of Rights to all disputes between
private persons.72
If this interpretation of the judgment in Khumalo is
correct, he goes on to argue, then certain criticisms may be
levelled against it. Among these are the following:
• First, it defers – and potentially suppresses – the direct
application of the Bill of Rights to disputes between
private parties, irrespective of whether the dispute is
governed by legislation, the common law or customary
law.73
• Second, less law is subject to the direct application of
the Bill of Rights under the Khumalo Court’s reading of
the Constitution than it was under the Court’s reading of
the interim Constitution in Du Plessis and Others v De
Klerk and Another.74 This is because it was generally
accepted that the Bill of Rights in the interim Constitution
did apply directly to disputes between private persons
governed by legislation.75
• Third, while the provisions of a statute or regulation may
not necessarily be subject to the direct application of the
Bill of Rights if the dispute was between two private
parties, they would automatically be subject to the direct
application of the Bill of Rights if the dispute was
between a private party and the state. This distinction is
absurd because it infringes the doctrine of objective
unconstitutionality. This doctrine provides, inter alia,
that constitutional cases, and thus the constitutionality of
laws, cannot be distinguished on the basis of the parties
before the court.76
Given the important obligations the Bill of Rights imposes on the bodies
and institutions that are bound by it, it is important to determine which
bodies and institutions fall within the scope of the words ‘legislature’,
‘executive’, ‘judiciary’ and ‘all organs of state’. While the Constitution
itself defines what is meant by the term ‘organ of state’, it does not define
what is meant by the words ‘legislature’, ‘executive’ and ‘judiciary’. This is
because the meaning of these words may be discerned from the provisions
of the Constitution. Given that we have already discussed what is meant by
the words ‘legislature’, ‘executive’ and ‘judiciary’ in Part I of this book, we
are only going to consider what is meant by the term ‘organ of state’ here.
9.3.2.4.1 Introduction
In some cases the Bill of Rights will not apply directly to law and a court
will not be asked to measure the law against the specific right and then to
declare invalid the provision of the law. Instead, the Bill of Rights will
indirectly influence the way in which the court interprets the law, but they
will not declare the law unconstitutional. While sections 8(1) and 8(2) of
the Constitution govern the direct vertical and horizontal application of the
Bill of Rights, section 39(2) of the Constitution governs the indirect vertical
and horizontal application of the Bill of Rights. Section 39(2) provides that
‘[w]hen interpreting any legislation, and when developing the common law
or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights’.
When the Bill of Rights applies indirectly, the relationship between the
Bill of Rights and the ordinary law is not governed by the principles and
rules set out in the Bill of Rights. Instead, it is governed by the principles
and rules set out in the ordinary law (legislation, common law and
customary law). The manner in which the courts interpret legislation or
develop the common law and customary law, however, must promote the
values in the Bill of Rights.
Unlike the direct application of the Bill of Rights, therefore, the indirect
application of the Bill of Rights is not based on an enquiry as to whether the
law is in direct conflict with an identifiable right. Instead, the court has to
invoke the values that underlie the Bill of Rights and ask whether it should
interpret or develop the law to bring it in line with these values.
COUNTER POINT
COUNTER POINT
Benefits and drawbacks of an expansive
approach to the principle of reading in
conformity with the Bill of Rights
In some cases the Constitutional Court has adopted an
expansive approach to the principle of reading in
conformity with the Bill of Rights and has strayed quite far
from the actual words used in a statutory provision in order
to give it a constitutional meaning.
In Bertie Van Zyl (Pty) Ltd and Another v Minister for
Safety and Security and Others,104 for example, the
applicant applied for an order declaring section 20(1)(a) of
the Private Security Industry Regulation Act105 to be
unconstitutional and invalid on the grounds that it was
overbroad or vague and therefore irrational. Section 20(1)
(a) of the Act was overbroad, the applicant argued,
because if read together with the definition of a ‘security
service’ in section 1 of the Act, it applied not only to people
who provided security services in the true sense, but to
also to countless other people, including, for example,
childminders, doctors and teachers, all of whom protect
and safeguard people in the course of their work.
Section 20(1)(a) of this Act provided in part that ‘[n]o
person, except a security service contemplated in
section 199 of the Constitution (Act No. 108 of 1996), may
in any manner render a security service for remuneration,
reward, a fee or benefit, unless such person is registered
as a security service provider in terms of this Act’ and
section 1(a) provided in part that ‘security service means
… protecting or safeguarding a person or property in any
manner’.
A majority of the Constitutional Court rejected this
argument. In arriving at this decision, however, the Court
held that the words ‘security service’ must be read down to
mean ‘the protection or safeguarding of persons or
property from unlawful physical harm, including injury,
physical damage, theft, or kidnapping caused by another
person. This must be so because the security of persons
and property is central to what the Act aims to protect …
[T]he Act is not intended to regulate the response to
hazards from nature or harm from animals’.106
To uphold the constitutional validity of section 1(a) of the
Act, therefore, the majority of the Constitutional Court
essentially rewrote it by cutting the words ‘in any manner’
from the section and adding the words ‘from unlawful
physical harm, including injury, physical damage, theft, or
kidnapping caused by another person’ to it.
As Bishop and Brickhill have pointed out, this expansive
approach has both advantages and disadvantages. On the
one hand, ‘it allows courts to avoid declaring legislation
unconstitutional and thus, in some sense at least, respect
the separation of powers. It also avoids the recurrent
difficulties and delays that often follow declarations of
invalidity until new legislation is passed’.107 On the other
hand, ‘government officials who have to apply the section
will not be able to tell from reading it what its proper
meaning is. They will have to know about (and read) the
court decision in order to do their jobs’.108
In addition, they point out further:
because High Court interpretations that avoid a finding of
unconstitutionality need not be confirmed by the Constitutional
Court, they will occasion much greater uncertainty than
declarations of invalidity. It is also possible that different High
Courts may reach different interpretations, none of which could be
ascertained merely by reading the section.109
Apart from the points set out above, the courts have also held that it is
important to distinguish between interpreting legislation in a manner that
promotes the spirit, purport and objects of the Bill of Rights, sometimes
called reading down, and the process of reading words into or severing
them from a statutory provision under section 172(1)(b) of the Constitution
following on a declaration of constitutional invalidity under section 172(1)
(a) of the Constitution.111
The first process is an interpretative one and is limited to what the text is
reasonably capable of meaning. The second process is a remedial one and
can only take place after the statutory provision in question has been found
to be constitutionally invalid.112 It follows that where a legislative
provision is reasonably capable of a meaning that places it within
constitutional bounds, it should be preserved. Only if this is not possible
should courts resort to the remedy of reading in or notional severance.113
9.3.2.4.3 The indirect application of the Bill of Rights to the common law and
customary law
Section 39(2) of the Constitution also governs the indirect application of the
Bill of Rights to the common law and customary law. This section provides
that ‘… when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights’.
The Constitutional Court has considered the circumstances in which the
courts must develop the common law on a number of occasions.114 In
these cases, the Court has held that while the courts are under a general
obligation to develop the common law, they do not have to carry out this
exercise in each and every case that comes before them.
In Carmichele v Minister of Safety and Security, for example, the
Constitutional Court held that:
the obligation of courts to develop the common law, in
the context of section 39(2) objectives, is not purely
discretionary. On the contrary, it is implicit in
section 39(2) read with section 173 that where the
common law as it stands is deficient in promoting the
section 39(2) objectives, the courts are under a general
obligation to develop it appropriately.115
This general obligation, the Constitutional Court held further, does not
mean:
that a court must, in each and every case where the
common law is involved, embark on an independent
exercise as to whether the common law is in need of
development and, if so, how it is to be developed under
section 39(2). At the same time there might be
circumstances where a court is obliged to raise the
matter on its own and require full argument from the
parties.116
The obligation imposed on the courts to develop the common law,
therefore, is an extensive one. It requires the courts to be alert to the
normative framework of the Constitution not only when some startling new
development of the common law is in issue, but in all cases where the
incremental development of the rule is in issue.117
Apart from the circumstances in which the courts are obliged to develop the
common law, the Constitutional Court has also dealt with the manner in
which the courts must carry out this exercise. In Thebus and Another v S,
for example, the Constitutional Court explained that the Constitution
embodies an ‘objective normative value system’.120 It is within the matrix
of this objective normative value system that the common law must be
developed. This means, the Court explained further, that ‘under
section 39(2) of the Constitution, concepts which are reflective of, or
premised upon, a given value system might well have to be replaced, or
supplemented and enriched by the appropriate norms of the objective value
system embodied in the Constitution’.121
After making these points, the Constitutional Court went on to explain
that the need to develop the common law under section 39(2) of the
Constitution could arise in two circumstances:
The first would be when a rule of the common law is
inconsistent with a constitutional provision. Repugnancy
of this kind would compel an adaptation of the common
law to resolve the inconsistency. The second possibility
arises even when a rule of the common law is not
inconsistent with a specific constitutional provision but
may fall short of its spirit, purport and objects. Then, the
common law must be adapted so that it grows in
harmony with the ‘objective normative value system’
found in the Constitution.122
In those cases in which a common law rule is alleged to be inconsistent
with a constitutional provision, a court is obliged to carry out a two-stage
enquiry. First, it must determine whether or not the common law rule does
in fact limit an entrenched right. If it does, the court must move onto the
second stage and determine whether the limitation is reasonable and
justifiable. If the limitation is not reasonable and justifiable, the court itself
is obliged to adapt or develop the common law rule in order to harmonise it
with the constitutional norm.123
In those cases in which a common law rule falls short of the spirit,
purport and objects of the Bill of Rights, a court is also obliged to undertake
a two-stage enquiry. First, it must ask itself whether, given the objectives of
section 39(2) of the Constitution, the common law should be developed
beyond existing precedent. If the answer to this question is a negative one,
then this should be the end of the enquiry. If not, the next enquiry should be
how the development should occur and which court should embark on this
exercise.124
In K v Minister of Safety and Security,125 the Constitutional Court also
set out some of the ways in which the common law can be developed. In
this respect, the Court stated that the common law can be developed by, for
example, introducing a new rule or significantly changing an existing one.
It can also be developed by extending the ambit of a rule to include a new
set of facts or limiting the ambit to exclude those facts.126
SUMMARY
This chapter deals with some of the technical questions relating to Bill of
Rights adjudication. The application of the Bill of Rights gives rise to a
number of difficult questions. The two most important, however, are who is
entitled to claim the right in question and who is bound by the right in
question?
The rights guaranteed in the Bill of Rights may be claimed by both
natural and, in certain circumstances, juristic persons. In so far as natural
persons are concerned, the majority of rights state that they can be claimed
by ‘everyone’. The use of the word ‘everyone’ refers to South African
citizens as well as any other person who is physically present in the country,
irrespective of whether they are here legally or illegally.
Although the majority of rights state that they can be claimed by
‘everyone’, certain rights state that they may be claimed only by a narrower
category of natural persons, for example citizens, children or detained
persons. These rights may be claimed only by those natural persons who
fall into the definition of the relevant category.
In so far as juristic persons are concerned, section 8(4) of the
Constitution provides that ‘[a] juristic person is entitled to the rights in the
Bill of Rights to the extent required by the nature of the rights and the
nature of the juristic person’. To determine whether a juristic person can
claim a particular right, therefore, two factors must be taken into account:
whether the juristic person is capable of exercising the right in question and
whether the juristic person is entitled to exercise the right in question.
Once a court has determined who can claim rights in terms of the Bill of
Rights, it has to ask a second question, namely, against whom can these
rights be claimed? In other words, the court has to ask who is bound to
respect the rights claimed by either a natural or juristic person. Although
‘everyone’ is entitled to claim the benefit of the rights (or at least most of
the rights) in the Bill of Rights, not everyone is bound by every right
contained in the Bill of Rights. This is because while the Bill of Rights is
always binding on the state, it is not always binding on private persons.
When it comes to the question of who is bound by the Bill of Rights, it is
important to distinguish between the direct application of the Bill of Rights
and the indirect application of the Bill of Rights as well as between the
vertical and horizontal application of the Bill of Rights. This is because in
South Africa the Bill of Rights applies not only directly and indirectly, but
also vertically and sometimes horizontally. Section 8(1) of the Constitution
governs the direct vertical application of the Bill of Rights while
section 8(2) governs the direct horizontal application. Section 39(2) of the
Constitution governs the indirect vertical and horizontal application of the
Bill of Rights.
1 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 24.
2 Currie and De Waal (2013) 24.
3 Currie and De Waal (2013) 26.
4 Currie and De Waal (2013) 26–7.
5 Freedman, DW ‘Constitutional law: Bill of Rights’ in Joubert, WA (ed) (2012) Law of South
Africa 2nd ed Vol 5 Part 4 para 2.
6 United Nations (1996) International Covenant on Civil and Political Rights available at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
7 United Nations (1996) International Covenant on Economic, Social and Cultural Rights
available at http://www.ohchr.org/en/professionalinterest/pages/CESCR.aspx.
8 Dlamini, CRM (1995) Human Rights in Africa: Which way South Africa? 5–6.
9 Dlamini (1995) 5–6.
10 Du Plessis, LM (1999) An Introduction to Law 3rd ed 168–9.
11 Du Plessis (1999) 168–9.
12 Du Plessis (1999) 168–9.
13 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) paras 77–8
where the Court held that socio-economic rights are no less justiciable than civil and political
right, nor would a court adjudicating on them necessarily lead to a breach of the separation of
powers.
14 See Currie and De Waal (2013) 24 and 29.
15 See Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 321.
16 Currie and De Waal (2001) 321.
17 Currie and De Waal (2001) 321.
18 Ss 19, 20 and 22 of the Constitution.
19 S 28 of the Constitution.
20 S 35 of the Constitution.
21 In law, a natural person is a real human being as opposed to a legal person which may be a
private business entity or public (government) organisation.
22 A juristic person is an artificial entity through which the law allows a group of natural persons
to act as if it were a single composite individual for certain purposes. This legal fiction does
not mean these entities are human beings, but rather that the law recognises them and allows
them to act as natural persons for some purposes, most commonly in lawsuits, property
ownership and contracts. For example, a company or a club will act as a juristic person.
23 Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505
(CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 47.
24 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 37.
25 Lawyers for Human Rights and Other v Minister of Home Affairs and Other (CCT 18/03)
[2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) para 27.
26 Christian Lawyers Association of SA v Minister of Health 1998 (11) BCLR 1434 (T) 1441.
27 Christian Lawyers Association 1441.
28 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
29 South African National Defence Union para 23.
30 South African National Defence Union para 26.
31 Govindjee, A and Vrancken, P (eds) (2009) Introduction to Human Rights Law 41.
32 Govindjee and Vrancken (2009) 41.
33 Govindjee and Vrancken (2009) 41.
34 Govindjee and Vrancken (2009) 41.
35 Govindjee and Vrancken (2009) 41.
36 See Rucker, P (2011, 11 August) Mitt Romney says ‘corporations are people’ at Iowa State Fair
Washington Post available at http://articles.washingtonpost.com/2011-08-
11/politics/35270239_1_romney-supporters-mitt-romney-private-sector-experience.
37 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996).
38 First Certification paras 57–8.
39 See, for example, Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December
1995); Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v
Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003
(5) SA 281 (CC) (27 June 2003); Kruger v President of the Republic of South Africa and
Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC)
(2 October 2008); Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd and Another (CCT 34/10) [2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR
207 (CC) (23 November 2010); Tulip Diamonds FZE v Minister for Justice and Constitutional
Development and Others (CCT 93/12) [2013] ZACC 19; 2013 (10) BCLR 1180 (CC); 2013 (2)
SACR 443 (CC) (13 June 2013).
40 Kruger para 21.
41 Kruger para 90.
42 See Currie and De Waal (2013) 77.
43 Currie and De Waal (2013) 77.
44 (CCT 25/12) [2012] ZACC 28; 2013 (3) BCLR 251 (CC) (29 November 2012) para 23.
45 Giant Concerts para 32.
46 Giant Concerts para 33.
47 Giant Concerts para 34.
48 Giant Concerts para 35.
49 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
50 (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003 (5) SA 281 (CC) (27 June 2003).
51 (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October
2008).
52 Giant Concerts para 41.
53 Ferreira; Vryenhoek para 234.
54 Ferreira; Vryenhoek para 234.
55 (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March
2004).
56 Lawyers for Human Rights para 17.
57 Lawyers for Human Rights para 18. In his minority judgment in Lawyers for Human Rights,
Madala J held that another important factor to be taken into account when determining whether
a party has standing to act in the public interest is ‘the egregiousness of the conduct
complained of’ (para 73).
58 Currie and De Waal (2001) 321.
59 Currie and De Waal (2001) 321.
60 Currie and De Waal (2013) 41.
61 Currie and De Waal (2013) 41.
62 Hutchinson, AC (1990) Mice under a chair: Democracy, courts and the administrative state
University of Toronto Law Journal 40(3):374–404 at 380.
63 S 8(2).
64 Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8)
BCLR 771 (14 June 2002) para 31. S 8(2) of the Constitution stipulates that ‘[a] provision in
the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable,
taking into account the nature of the right and the nature of the duty imposed by the right’.
S 8(3) goes on to stipulate that ‘[w]hen applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court: (a) in order to give effect to a right in the
Bill, must apply, or if necessary develop, the common law to the extent that legislation does not
give effect to that right; and (b) may develop rules of the common law to limit the right,
provided the limitation is in accordance with section 36(1)’.
65 Khumalo para 31.
66 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002).
67 Khumalo paras 30–4.
68 Khumalo para 31.
69 Khumalo para 31.
70 Khumalo para 32.
71 Khumalo para 33.
72 See Woolman, S ‘Application’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law
of South Africa 2nd ed rev service 5 31.6.
73 Woolman (2013) 31.7.
74 (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996).
75 Woolman (2013) 31.8.
76 Woolman (2013) 31.8.
77 Freedman (2012) para 7.
78 (410/09) [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July
2010).
79 Act 3 of 2000.
80 Calibre Clinical Consultants para 20.
81 S 239(b)(i) of the Constitution.
82 S 239(b)(ii) of the Constitution; Calibre Clinical Consultants para 19.
83 Calibre Clinical Consultants para 24.
84 Calibre Clinical Consultants para 38.
85 Calibre Clinical Consultants para 40.
86 Act 66 of 1995.
87 Calibre Clinical Consultants para 41.
88 Du Plessis para 129. Although the Bill of Rights in the interim Constitution did not apply
directly to horizontal disputes, it did apply indirectly. S 35(3) of the interim Constitution thus
provided that ‘[i]n the interpretation of any law and the application and development of the
common law and customary law, a court shall have due regard to the spirit, purport and objects
of [the Bill of Rights]’. The approach adopted by the Constitutional Court in Du Plessis
resulted in much academic debate and criticism. See, for example, Woolman, S and Davis, D
(1996) The last laugh: Du Plessis v De Klerk, classical liberalism, Creole liberalism and the
application of fundamental rights under the interim and final Constitutions South African
Journal on Human Rights 12(2):361–404 at 361 and Sprigman, C and Osborne, M (1999) Du
Plessis is not dead: South Africa’s 1996 Constitution and the application of the Bill of Rights to
private disputes South African Journal on Human Rights 15(1):25–51 at 25.
89 (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011).
90 Juma Musjid para 58.
91 Juma Musjid para 58. See also Khumalo para 33.
92 Juma Musjid para 60.
93 Juma Musjid para 58.
94 Freedman (2012) para 9.
95 S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793
(CC) (8 June 1995) para 59; Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995]
ZACC 9; 1995 (10) BCLR 1424; 1995 (4) SA 615 (22 September 1995) paras 2–5; Ferreira;
Vryenhoek para 199; S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997
(2) SA 887 (18 November 1996) paras 12–13; National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1)
SA 6; 1998 (12) BCLR 1517 (9 October 1998) para 21.
96 See Woolman, S (2007) The amazing vanishing Bill of Rights South African Law Journal
124(4):762–94 at 762.
97 See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 22.
98 Hyundai para 23.
99 See South African Police Service v Police and Prisons Civil Rights Union and Another (CCT
89/10) [2011] ZACC 21; [2011] 9 BLLR 831 (CC); 2011 (9) BCLR 992 (CC); 2011 (6) SA 1
(CC); (2011) 32 ILJ 1603 (CC) (9 June 2011) para 29.
100 Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004
(7) BCLR 735 (CC) (11 March 2004) para 83.
101 Daniels para 24.
102 Hyundai para 22.
103 Daniels para 24.
104 (CCT 77/08) [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10) BCLR 978 (CC) (7 May
2009).
105 Act 56 of 2001.
106 Bertie Van Zyl para 40.
107 Bishop, M and Brickhill, J (2010) ‘Constitutional Law’ Juta’s Annual Survey of South African
Law 224.
108 Bishop and Brickhill (2010) para 224.
109 Bishop and Brickhill (2010) para 224.
110 Bishop and Brickhill (2010) para 225.
111 Bishop and Brickhill (2010) para 225.
112 Bishop and Brickhill (2010) para 225.
113 Bishop and Brickhill (2010) para 225.
114 See, for example, Du Plessis; Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98)
[1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998).
115 (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) (16 August
2001) para 39.
116 Carmichele para 39.
117 See K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC);
2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005) para 17.
118 For an interesting and lively debate on this topic, see Fagan, A (2010) The secondary role of
the spirit, purport and objects of the Bill of Rights in the common law’s development South
African Law Journal 127(3):611–27; Davis, DM (2012) How many positivist legal
philosophers can be made to dance on the head of a pin? A reply to Professor Fagan South
African Law Journal 129(1):59–72; Fagan, A (2012) A straw man, three red herrings, and a
closet rule-worshipper: A rejoinder to Davis JP South African Law Journal 129(3):788–98;
Davis, DM (2013) The importance of reading: A rebuttal to the jurisprudence of Anton Fagan
South African Law Journal 130(1):52–9.
119 Davis (2012) 67–8.
120 (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August
2003) para 27.
121 Thebus para 27.
122 Thebus para 28.
123 Thebus para 32.
124 Thebus para 26.
125 (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8
BLLR 749 (CC) (13 June 2005).
126 K para 16.
127 (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May
2013) para 24. See also Gumede (born Shange) v President of the Republic of South Africa and
Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC)
(8 December 2008) para 22; Alexkor Ltd and Another v Richtersveld Community and Others
(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003); Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004]
ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 41; First
Certification para 197.
The limitation of rights
10.1 Introduction
10.2 The evolution of the limitation clause
10.3 The two-stage approach to the limitation of rights
10.4 The threshold enquiry: does the measure limit a protected
right?
10.4.1 The content and scope of the relevant protected right
10.4.2 Is the right infringed by the measure?
10.5 The justification stage: is the limiting measure in terms of
a law of general application and reasonable and justifiable?
10.5.1 Law of general application
10.5.2 Reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom
10.5.2.1 Reconsidering the role of proportionality in the
justification enquiry
10.5.2.2 Section 36 in practice
10.5.2.2.1 The purpose of the limiting measure
10.5.2.2.2 The rational connection requirement
10.5.2.2.3 Less restrictive, alternative means of achieving the
end
10.5.2.2.4 Balancing and proportionality proper
Summary
10.1 Introduction
Rights are not absolute and can, in certain circumstances, be limited.
Section 36 of the Bill of Rights contains a limitation clause that allows for
the constitutionally valid limitation of rights in certain instances. Once a
court has established that a law infringes on one or more of the rights
guaranteed in the Bill of Rights, the court must ask whether this
infringement, also called a limitation, is justifiable. This means that
somebody who claims that a legal provision has limited his or her rights
will not automatically win the case simply because his or her rights have
been limited. The person will only win if the court finds that the limitation
is not justifiable in terms of the limitation clause set out in section 36 of the
Bill of Rights.
Determining whether a limitation of rights is justified or not is difficult
and rightly so. It is difficult on a number of levels. First, South Africa is a
country emerging from a historical period during which individuals’
fundamental rights and freedoms were systematically and routinely
violated, first under colonialism and then apartheid, often under the colour
of law. South Africa has now committed itself to a system of constitutional
democracy.1 This new political dispensation requires all arms of
government 2 and, in certain circumstances, private actors,3 to respect and
protect the basic, fundamental rights contained in our Bill of Rights. In this
constitutional order, any limitation of these basic rights will understandably
and necessarily be a difficult and, at times, painful exercise.
Second, the commitment to a rights-based constitutional order means
that society’s political, social, economic and historical controversies are
often resolved using the language and the logic of rights. At times, this
requires courts to address these pressing and complex issues, some of which
invoke age-old questions that go to the heart of how society and
government should be structured and should function, using contested
empirical bases. This sometimes places courts in a difficult position in
relation to the other arms of government, namely the legislature and the
executive, as well as the public at large. The commitment to individual
rights means that courts may also have to make decisions that go against
public opinion.4 This, in essence, is the cost of ‘taking rights seriously’.5
Apart from the difficulties identified above, there is another sense in
which the limitation of rights is a difficult exercise. It is often difficult for
people to understand the approach adopted by the Constitutional Court (and
to a far lesser extent the Constitution’s drafters) towards the limitation of
rights. The inaccessibility of the limitation clause is problematic in a
number of respects. First and foremost, it makes it difficult for other
branches of government to bring their conduct into line with what the Bill
of Rights expects and demands. As the Court itself noted in S v Mhlungu
and Others, constitutional interpretation should take the form of ‘a
principled judicial dialogue, in the first place between members of this
Court, then between our Court and other courts, the legal profession, law
schools, Parliament, and, indirectly, with the public at large’.6 The problem
with the Court’s current approach to rights limitation is that aspects of its
approach are often lost in translation.7 Second, in its current form, the
limitation clause, as well as the Court’s jurisprudence in respect of the
clause, is difficult for students to understand.
Although some level of complexity is inevitable, this chapter tries to
simplify the process of limiting rights under the Constitution. To do so, we
begin by discussing the shift from the structured, sequential limitation
enquiry required by section 33 of the interim Constitution to a unified,
balancing limitation enquiry required by section 36 of the Constitution.8
Next, we consider the two stages of the limitation analysis: the threshold
stage and the justification stage. At the threshold stage, we draw attention to
the different approaches taken by the Constitutional Court. The justification
stage is further divided into its two sub-components, namely the law of
general application requirement and the reasonable and justifiable
requirement. Crucial to understanding the latter is a reconsideration of the
notion of proportionality that has come to dominate the understanding and
misunderstanding of how section 36 works. In the final part of the chapter
we discuss the limitation of rights outside section 36(1).
CRITICAL THINKING
COUNTER POINT
COUNTER POINT
A critique of the balancing process
Woolman and Botha critique the balancing process on a
number of theoretical grounds:
• First, they point out that people value things differently in
qualitative and not solely quantitative terms (pluralism).
The things that we value are not always (or often)
commensurate with one another (incommensurability).
As a result, balancing ‘requires substantially more than
the invocation of such pat metaphors as the “scales of
justice” (complexity)’.107
• Second, they argue that ‘the Final Constitution – like
most constitutional texts – provides little or no guidance
as to how a court should determine the relative weight to
be attached to conflicting rights and interests. One
possible result is that the weighting and the ranking of
interests are not grounded in constitutional interpretation
… but are based, instead, on the subjective preferences
of individual judges. This enables judges to skirt the
demands that attach to difficult and controversial value-
choices by employing the ostensibly neutral, objective or
scientific language of balancing’.108
• Third, they point out that the balancing approach has
historically been associated with conservative and
incrementalist approaches to adjudication. As a result,
the context or case-specific nature of the balancing
approach ‘blunts the transformative potential of the Final
Constitution’.109
• Fourth, balancing can lead judges to employ ‘scientific’
language and concepts, such as cost-benefit analysis,
Woolman and Botha argue, which ‘invites a new type of
formalism which, like all formalist doctrines, tends to
eschew dialogue about important moral and political
issues’.110
10.5.2.2 Section 36 in practice
SUMMARY
When a person challenges a law on the grounds that it infringes one or more
of the rights guaranteed in the Bill of Rights, a court has to perform two
tasks. The court must first determine whether the law being challenged
limits any of the rights protected by the substantive clauses of the Bill of
Rights. If it does, the court then has to go on to determine whether that
limitation is justifiable. A limitation will be justifiable if it satisfies the
requirements of section 36(1) of the Constitution (the limitation clause).
When it came to interpreting the limitation clause, most commentators
expected the Constitutional Court to follow the sequential structured
approach, in which a series of specific questions are addressed, adopted by
the Canadian Supreme Court in Oakes. In Makwanyane, however, the
Constitutional Court rejected this approach and adopted a singular global
approach in which certain factors are considered. This singular global
approach is usually referred to as a balancing or proportionality test.
Unfortunately, it is not always clear what this balancing or
proportionality test requires or how it drives the limitation enquiry. To make
it simpler to understand this test, we divided the factors listed in
section 36(1) into four different questions. These questions are as follows:
• What is the purpose of the limiting measure? Is it legitimate in an open
and democratic society based on equality, freedom and human dignity?
• What is the relationship between the limiting measure and its stated
purpose? More specifically, are they rationally connected?
• Are there clear, alternative means available that are less restrictive on the
full enjoyment of the right?
• Is the legitimate, rationally based limiting measure a proportionate
limitation on the right in question, taking into account the degree of
infringement, the nature of the right, the breadth of the measure and the
social good it achieves? This is balancing and proportionality proper.
The aim of this reconsideration is not to alter substantively the justification
enquiry. Instead, it is to make proportionality more accessible by providing
a simplified lens through which to view the numerous decisions involving
limitation and to understand the different types of limitation analysis
undertaken by the courts.
1 S 1(c) of the Constitution states that South Africa is a sovereign, democratic state founded on,
inter alia, ‘[the] supremacy of the Constitution and the rule of law’. Further, s 7 states: ‘This
Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all
people in our country and affirms the democratic values of human dignity, equality and
freedom.’
2 S 8(1) of the Constitution states: ‘The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state.’
3 For example, s 9(4) of the Constitution prohibits horizontal discrimination, stating: ‘No person
may unfairly discriminate directly or indirectly against anyone on one or more [prohibited]
grounds.’
4 For a fairly negative assessment of public support for the Constitutional Court, see Gibson, JL
and Caldeira, GA (2003) Defenders of democracy? Legitimacy, popular acceptance, and the
South African Constitutional Court Journal of Politics 65(1):1–30 at 1. Du Plessis argues that
the Constitutional Court must go a step further by not only engaging with public opinion, but
where necessary changing it by ‘edify[ing] the South African public about their ethical identity
under the Constitution’. See Du Plessis, M (2002) Between apology and utopia: The
Constitutional Court and public opinion South African Journal on Human Rights 18(1):1–40 at
1.
5 See Dworkin, RM (1978) Taking Rights Seriously 184.
6 (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) (8 June 1995)
para 129.
7 Even if the test can be conceptually pinned down, it is problematic by the use of language
alone. In Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002]
ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) para 151, Sachs J, for
example, attempts to bring the abstract enquiry down to the ground by noting that ‘the
weighing of the respective interests at stake does not take place on weightless scales of pure
logic pivoted on a friction-free fulcrum of abstract rationality’. This description is not easy to
comprehend.
8 This evolution will form the basis of the reconsideration of the notion of proportionality below.
9 In De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others
2003 (3) SA 389 (W) 425G, the High Court noted:
I reiterate that the rights contained in the Bill of Rights are not absolute. Rights
have to be exercised with due regard and respect for the rights of others. Organised
society can only operate on the basis of rights being exercised harmoniously with
the rights of others. Of course, the rights exercised by an individual may come into
conflict with the rights exercised by another, and where rights come into conflict, a
balancing process is required.
10 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA
391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 100.
11 See Makwanyane para 104.
12 Art 1 of the Canadian Charter of Rights and Freedoms in Part 1 of the Constitution Act (1982)
states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.’
13 S 33(1) of the interim Constitution. Regarding the evolution of s 33(1), Woolman and Botha
note: ‘The basic form of the interim Constitution’s limitations clause did not change over the
course of the 12 reports generated by the Multi-Party Negotiating Forum’s Technical
Committee on Fundamental Rights. In its second report, the Committee identified what it
believed to be the primary features of a limitations clause: (a) a ‘law of general application’
threshold test; (b) a reasonableness requirement; (c) a necessity requirement; (d) a ‘justifiable
in a free, open and democratic society’ requirement; (e) a proportionality or balancing
approach; (f) a ‘non-derogation from the essential content of the right’ requirement; and (g) an
immunisation of select rights from any limitation at all. With the exception of the last
characteristic, all of these attributes appear in one form or another in the 12th and final version
of the interim Constitution’s limitations clause.’ See Woolman, S and Botha, H ‘Limitation’ in
Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service
5 34.10–34.11. For a discussion of the limitations clause in s 33 of the interim Constitution, see
White, J ‘Constitutional litigation and interpretation, and fundamental rights’ (1994) Juta’s
Annual Survey of South African Law 35–66.
14 Entrenched rights were listed in s 33(1) (b)(aa) and (bb) of the interim Constitution as ss 10,
11, 12, 14(1), 21, 25 or 30(1)(d), 30(1)(e) or 30(2) and ss 15, 16, 17, 18, 23, or 24 in so far as
such rights relate to free and fair political activity.
15 For a more detailed discussion of the evolution of s 33(1), see Woolman and Botha (2013).
16 In Makwanyane para 108, the German test was described by the Constitutional Court as
follows:
It has regard to the purpose of the limiting legislation, whether the legislation in
fact achieves that purpose, whether it is necessary therefor, and whether a proper
balance has been achieved between the value enhanced by the limitation, and the
fundamental right that has been limited.
17 [1986] 1 SCR 103. This judgment was also favourably quoted in Makwanyane para 105.
18 R v Oakes [1986] 1 SCR 103 para 74.
19 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995).
20 Makwanyane para 104.
21 Makwanyane para 104. The reformulation was, it must be noted, welcomed by some
commentators at the time. See Bronstein, V and Robinson, K ‘Constitutional jurisprudence and
the Bill of Rights’ (1996) Juta’s Annual Survey of South African Law 53: ‘Here the court
acknowledges one’s intuitive sense that the effect of the proportionality test used in analysing
rights and their limitations does not depend on the wording of the limitation clause in an
individual case. The best interpretation of the statement quoted above is that the rights in the
Bill of Rights are not weakened by the omission of the word “necessary”. The implication is
that it does not make a difference whether the operative words in the limitation clause are
“necessary” or “reasonable and justifiable”. This pronouncement should be interpretively
important in the future.’ Such an early departure from the wording of s 36 – by academics no
less – was a sign of things to come.
22 Makwanyane para 104.
23 In doing so, the Constitutional Court took its lead from the German Constitutional Court
which, Chaskalson J remarked in Makwanyane para 108, ‘also has a provision similar to
section 33(1)(b) of our Constitution, but the Court apparently avoids making use of this
provision, preferring to deal with extreme limitations of rights through the proportionality test’.
24 Under the text of the interim Constitution’s limitation clause, courts must first ask if a
limitation is reasonable. Only if it is deemed to be reasonable, will they move on to the second
question as to whether it is justifiable, at which point the courts would be required to balance
competing interests.
25 At the time of its drafting, the exact phraseology was contested and confused. As noted at the
time: ‘While the section in the Working Draft on the limitation of rights was replete with
alternative constructions providing that a right may be limited only to the extent that it is
“reasonable/reasonable and justifiable/reasonable and necessary/necessary/justifiable” (s 35(1)
(a), Working Draft), in the end the Constitutional Assembly settled for the reasonable and
justifiable formulation [s 36(1) in the final Constitution] despite some rather puerile debate in
which it seemed as if the constitutional experts did not really seem to have an opinion as to
whether there was any significant point to the different formulations. This particular debate
created some confusion in a public already well rehearsed in the promise that the “draft text
has been written in plain language so that everyone can read and understand it”.’ See Annual
Survey of South African Law.
26 In Makwanyane para 104, the Court also introduced factors to be considered in the balancing
process, noting: ‘In the balancing process the relevant considerations will include the nature of
the right that is limited and its importance to an open and democratic society based on freedom
and equality; the purpose for which the right is limited and the importance of that purpose to
such a society; the extent of the limitation, its efficacy and, particularly where the limitation
has to be necessary, whether the desired ends could reasonably be achieved through other
means less damaging to the right in question.’
27 While these factors added some substance to an otherwise fairly abstract process, this value
was offset by the exclusion of two features of s 33 of the interim Constitution that could
potentially have narrowed down the ‘universe of possibility’ presented by the open-ended
nature of the balancing test. The first was the requirement in s 33(1)(b) of the interim
Constitution that limitations must not ‘negate the essential content of the right in question’. The
second was the requirement that, in respect of certain entrenched rights, the limitation must
pass the additional test of being necessary. See Woolman, S ‘Application’ in Woolman and
Bishop (2013) 31.145. While these will no doubt have presented their own problems, they
would have brought some clarity to the process of limiting rights. Notably, there was an
objection raised in the First Certification judgment regarding the omission of ‘necessary’ but
that was quickly dismissed. See Certification of the Constitution of the Republic of South
Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253
(CC) (6 September 1996) para 90.
28 Lenta, P (2001) Just gaming? The case for postmodernism in South African legal theory South
African Journal on Human Rights 17(2):173–209 at 175–6.
29 See, for example, the equality test in Harksen v Lane NO and Others (CCT9/97) [1997] ZACC
12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997).
30 Roux, T (2007) Tactical adjudication: How the Constitutional Court of South Africa survived
its first decade 29, available at
http://www.saifac.org.za/docs/2007/Tactical%20Adjudication.pdf.
31 Roux (2007) 30.
32 Roux (2007) 30.
33 Roux (2007) 30.
34 Roux, T (2009) Principle and pragmatism on the Constitutional Court of South Africa
International Journal of Constitutional Law 7(1):106–38 at 108.
35 Roux (2009) 135.
36 Roux (2009) 135.
37 (CCT19/01) [2002] ZACC 5; 2002 (4) SA 768; 2002 (7) BCLR 702 (16 May 2002).
38 Roux (2009) 134–5.
39 First National Bank para 100.
40 Roux (2009) 136.
41 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 21. Kentridge AJ added: ‘First,
has there been a contravention of a guaranteed right? If so, is it justified under the limitation
clause?’ See also S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995
(7) BCLR 861 (CC) (9 June 1995) para 54; Makwanyane paras 100–02, 208. However, Sachs J
emerged in opposition to this, noting in Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer Port Elizabeth Prison and Others (CCT19/94,
CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September 1995)
para 46 that ‘faithfulness to the Constitution is best achieved by locating the two-stage
balancing process within a holistic, value-based and case-oriented framework’.
42 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7;
1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 18.
43 (CCT28/01) [2002] ZACC 6; 2002 (4) SA 613; 2002 (7) BCLR 663 (21 May 2002) paras 26–
7.
44 (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998)
para 27: ‘For the purposes of this judgment, I shall adopt the approach most favourable to the
appellant and assume without deciding that appellant’s religious rights under sections 15 and
31(1) are both in issue. I shall also assume, again without deciding, that corporal punishment as
practised by the appellant’s members is not “inconsistent with any provision of the Bill of
Rights” as contemplated by section 31(2). I assume therefore that section 10 of the Schools Act
limits the parents’ religious rights both under section 31 and section 15.’
45 Veldman v Director of Public Prosecutions (Witwatersrand Local Division) (CCT19/05) [2005]
ZACC 22; 2007 (3) SA 210 (CC); 2007 (8) BCLR 827 (CC) (5 December 2005).
46 Walters paras 26–7.
47 See Beinash and Another v Ernst & Young and Others (CCT12/98) [1998] ZACC 19; 1999 (2)
SA 91; 1999 (2) BCLR 125 (2 December 1998).
48 In Mistry v Interim National Medical and Dental Council and Others (CCT13/97) [1998]
ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May 1998) para 28, Sachs J found the
periodic inspection of health professionals’ business premises would have ‘entailed only the
most minimal and easily justifiable invasions of privacy, if they had qualified as invasions of
privacy at all’ (our emphasis). This approach was followed by Ngcobo J in S v Jordan and
Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae
(CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002)
paras 28–9. Ngcobo J held: ‘…even if the right to privacy is implicated, [h]aving regard to the
legitimate State interest in proscribing prostitution and brothel-keeping, viewed against the
scope of the limitation on the right of the prostitute and brothel-keeper to earn a living, I
conclude that if there be a limitation of the right to privacy, the limitation is justified’. See
Woolman and Botha (2013) 34.4, fn1. See South African Broadcasting Corporation Limited v
National Director of Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1)
SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006).
49 See Woolman and Botha (2013) 34.17–34.18.
50 Walters para 26.
51 As Woolman and Botha note: ‘For each right there are specific values that can be said to have
led to its constitutionalisation.’ As a result, the ‘specific values that animate each right’ will
play particular roles in interpreting those rights. See Woolman and Botha (2013) 34.17.
52 In Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR
449; 1996 (2) SA 751 (27 March 1996) para 79, Ackermann J noted in the context of the right
to privacy:
The two-stage approach requires, as the first step, a definition of the scope of the
relevant right. At this stage already … it is necessary to recognize that the content
of the right is crystallized by mutual limitation. Its scope is already delimited by the
rights of the community as a whole (including its members).
53 See South African National Defence Union paras 25–7 where O’Regan J considered the
recommendations and conventions of the International Labour Organization in setting out the
content of the right to work.
54 Zuma para 21. Further, in Makwanyane para 100: ‘Our Constitution … calls for a “two-step”
approach, in which a broad rather than a narrow interpretation is given to the fundamental
rights enshrined in Chapter 3 and limitations have to be justified through the application of
section 33.’
55 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
56 De Reuck para 48.
57 De Reuck para 48.
58 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).
59 New National Party para 15.
60 New National Party para 19.
61 New National Party para 24.
62 Roux (2009) 127. See, however, the dissenting opinion of O’Regan J.
63 Williams para 21.
64 (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 67.
65 Magajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (10)
BCLR 1133 (CC); 2006 (5) SA 250; 2006 (2) SACR 447 (8 June 2006) para 59 fn 73.
66 In Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01)
[2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002) para 30:
How is section 16(2) to be interpreted? The words ‘the right in subsection (1) does
not extend to …’ imply that the categories of expression enumerated in
section 16(2) are not to be regarded as constitutionally protected speech.
Section 16(2) therefore defines the boundary beyond which the right to freedom of
expression does not extend. In that sense, the subsection is definitional. Implicit in
its provisions is an acknowledgment that certain expression does not deserve
constitutional protection because, among other things, it has the potential to
impinge adversely on the dignity of others and cause harm. Our Constitution is
founded on the principles of dignity, equal worth and freedom, and these objectives
should be given effect to.
67 See further Zealand v Minister for Justice and Constitutional Development and Another
(CCT54/07) [2008] ZACC 3; 2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4) SA
458 (CC) (11 March 2008) para 34 (right to freedom and security).
68 Walters paras 26–7.
69 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
70 Jordan para 80–1. Sachs and O’Regan JJ later qualified their finding by noting at para 86 that
the limiting measure did ‘not reach into the core of privacy, but only [touched] its penumbra’.
71 S 36(1) of the Constitution.
72 S 36(1) of the Constitution.
73 Woolman and Botha (2013) 34.48.
74 Woolman and Botha (2013) 34.48.
75 The Court has not yet considered the relationship that must exist between the law and the
limiting measure, and more specifically what the phrase ‘in terms of’ means.
76 The Electoral Act 73 of 1998 – which governed the Commission’s operation – made no
provision for the disqualification of voters.
77 See Woolman and Botha (2013) 34.34 fn 2.
78 See Woolman and Botha (2013) 34.52 fn 1.
79 See Woolman and Botha (2013) 34.52 fn 2.
80 Larbi-Odam and Others v Member of the Executive Council for Education (North-West
Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745
(26 November 1997) para 27.
81 Du Toit v Minister of Transport (CCT22/04) [2005] ZACC 9; 2005 (11) BCLR 1053 (CC);
2006 (1) SA 297 (CC) (8 September 2005).
82 Sonderup v Tondelli and Another (CCT53/00) [2000] ZACC 26; 2001 (2) BCLR 152; 2001 (1)
SA 1171 (4 December 2000).
83 Ingledew v Financial Services Board (CCT6/02) [2003] ZACC 8; 2003 (8) BCLR 825; 2003
(4) SA 584 (CC) (13 May 2003) para 19.
84 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
85 Hugo para 96.
86 Hugo para 76 fn 7.
87 Hugo para 102. In doing so she relied, inter alia, on the decision of the European Court of
Human Rights in Sunday Times v the United Kingdom (1979–80) 2 EHRR 245 Eur Crt of HR
1979-04-26 para 49 where it noted:
In the Court’s opinion, the following are two of the requirements that flow from the
expression “prescribed by law”. First, the law must be adequately accessible: the
citizen must be able to have an indication that is adequate in the circumstances of
the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a
“law” unless it is formulated with sufficient precision to enable the citizen to
regulate his conduct: he must be able – if need be with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the consequences which
a given action may entail.
88 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 47.
89 Woolman and Botha (2013) 34.61.
90 However, Woolman and Botha suggest that the movement should be the other way, in other
words, content-specific questions should be considered under the rubric of law of general
application rather than during the justification stage. See Woolman and Botha (2013) 34.62–
34.63.
91 S 33(1) of the interim Constitution provided that ‘[t]he rights entrenched in this Chapter may
be limited by law of general application, provided that such limitation (a) shall be permissible
only to the extent that it is (i) reasonable; and (ii) justifiable in an open and democratic society
based on freedom and equality; and (b) shall not negate the essential content of the right in
question …’ Further, it provided that the limitation of certain entrenched rights must also be
necessary.
92 Paraphrased by Woolman and Botha as ‘first, whether the limitation serves a sufficiently
important objective; second, whether the limitation is rationally connected to the said
objective; third, whether the limitation impairs the right as little as possible; and fourth,
whether the actual benefits of the limitation are proportionate to its deleterious consequences
for the rights-holder’. See Woolman, S and Botha, H ‘Limitations: Shared constitutional
interpretation, an appropriate normative framework and hard choices’ in Woolman, S and
Bishop, M (eds) (2008) Constitutional Conversations 155.
93 There is a difference: the Makwanyane formulation does not separate them but has them
considered globally with proportionality as a device. Factors do not suffice as they are all to be
considered under proportionality and often conflate threshold and proportionality questions.
We might note a difference between factors that may be considered and threshold questions
that must be met.
94 As discussed further below, the importance of the purpose of the limitation factor is made
up of two sub-parts: first, the purpose of the limitation and second, its importance. The latter is
relevant to the limiting measure side of the proportionality scale.
95 The relationship between the limitation and its purpose is similarly complex. At this stage
of the justification enquiry, the relationship requires at a minimum a rational connection
between the purpose and the limitation, what courts have labelled the rational connection
requirement. Labelling them as factors is, in a sense, misleading as it gives them an optional
feel, whereas unlike other section 36 factors, these threshold questions are imperative to any
limitations enquiry.
96 Iles, K (2007) A fresh look at limitations: Unpacking section 36 South African Journal on
Human Rights 23(1):68–92 at 68.
97 We could consider steps one and two – which deal with the internal aspects of the limiting
measure – as addressing the question of reasonableness, while the latter two – which address
the relationship between the limiting measure and externalities – address the issue of
justifiability.
98 As Sachs J noted in Prince para 155: ‘Limitations analysis under our Constitution is based not
on formal or categorical reasoning but on processes of balancing and proportionality as
required by section 36.’
99 These remaining section 36 factors are also, broadly speaking, captured in stages three and four
of the Oakes formulation. The third step in Oakes – whether the limitation impairs the right as
little as possible – is similar to the less restrictive means factor in s 36(1)(e), but is perhaps
more appropriately compared to the phrase ‘to the extent that’. The fourth and final step under
the Oakes formulation – whether the actual benefits of the limitation are proportionate to its
deleterious consequences for the rights-holder – is proportionality in a limited sense. On this
score, section 36 is more comprehensive. What remains of section 36 factors collectively ask if
the legitimate, rationally based measure constitutes a proportionate limitation on the right in
question, taking into account the degree of infringement, the nature of the right, the breadth of
the measure and the social good it achieves.
100 With apologies to Iles who used the phrase in respect of his scaled-down approach to s 36. Iles
(2007) 68.
101 It was never intended that the section 36 factors would be applied sequentially. Nor, for that
matter, are they logically sequenced although the Constitutional Court has remarkably on a few
occasions applied them mechanically (See Magajane).
102 There have been occasions when certain judges have recognised the intuitive difference
between the section 36 factors and tried to re-introduce some structure into the limitation
clause by applying ‘reasonable and justifiable’ separately. However, these are few and are
between. In his dissenting judgment in Prince para 81, Ngocbo J held:
I accept that the goal of the impugned provisions is to prevent the abuse of
dependence-producing drugs and trafficking in those drugs. I also accept that it is a
legitimate goal. The question is whether the means employed to achieve that goal
are reasonable. In my view, they are not. The fundamental reason why they are not
is because they are overbroad … On that score they are unreasonable and they fall
at the first hurdle. This renders it unnecessary to consider whether they are
justifiable.
Similarly, in Engelbrecht v Road Accident Fund and Another (CCT57/06) [2007] ZACC 1;
2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) (6 March 2007), Kondile AJ employed
reasonable and justifiable disjunctively. Having found that the measure ‘[did] not meet the
threshold test of reasonableness’ (para 40), he went on to ‘consider whether the regulation is
justifiable, on the assumption that it may still be necessary, despite the manifest
unreasonableness referred to above’ (para 41), citing Makwanyane paras 209–10.
103 In S v Bhulwana, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388;
1995 (12) BCLR 1579 (29 November 1995) para 24, O’Regan J held:
In my view, section 21(1)(a)(i) of the Act cannot be justified in terms of section 33(1)
of the Constitution. Although the need to suppress illicit drug trafficking is an
urgent and pressing one, it is not clear how, if at all, the presumption furthers such
an objective. In addition, there appears to be no logical connection between the fact
proved (possession of 115g) and the fact presumed (dealing). On the other hand, the
presumption gives rise to an infringement of the right entrenched in section 25(3)
(c), which is a pillar of our system of criminal justice. Section 21(1)(a)(i) of the Act
is an unconstitutional infringement of the right entrenched in section 25(3)(c) which
is not reasonable, justifiable or necessary as contemplated by section 33.
104 As Woolman and Botha note: ‘Prior to the judgment in Makwanyane, it was widely expected
that the Court would model its analysis of the reasonableness and justifiability of fundamental-
rights limitations on the approach adopted by the Canadian Supreme Court in R v Oakes.
However, the approach of the Makwanyane Court represents a significant departure from the
Oakes test.’ See Woolman and Botha (2008) 155.
105 Makwanyane paras 145–6.
106 Woolman and Botha (2008) 161.
107 Woolman and Botha (2008) 159.
108 Woolman and Botha (2008) 160.
109 Woolman and Botha (2008) 161.
110 Woolman and Botha (2008) 161.
111 S 36(1)(b) of the Constitution.
112 Jordan para 15.
113 See, for example, South African National Defence Union where the aim was to comply with
s 200(1) of the 1996 Constitution which provides that the South African National Defence
Force (SANDF) must be structured and managed as a disciplined military force.
114 South African National Defence Union para 11.
115 Bhulwana para 20; Prince para 35.
116 Christian Education paras 39–41.
117 Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25;
2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004) para 37.
118 Magajane para 81.
119 Islamic Unity Convention para 45.
120 Jordan para 15.
121 Moise v Greater Germiston Transitional Local Council (CCT 54/00) [2001] ZACC 21; 2001
(4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001).
122 Johncom Media Investments Limited v M and Others (CCT 08/08) [2009] ZACC 5; 2009 (4)
SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 29.
123 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) bclr 1517 (9 October 1998) para 37.
Although not all were framed as section 36 enquiries, the same logic has been persuasive in a
number of subsequent cases that purged the discriminatory preferences against individuals in
homosexual relationships from our law. See Du Toit and Another v Minister of Welfare and
Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006;
2003 (2) SA 198 (CC) (10 September 2002); Satchwell v President of the Republic of South
Africa and Another (CCT48/02) [2003] ZACC 2; 2003 (4) SA 266 (CC); 2004 (1) BCLR 1
(CC) (17 March 2003); J and Another v Director General, Department of Home Affairs and
Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March
2003); Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC
19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).
124 Makwanyane para 131.
125 If the court is satisfied, then it will turn its attention to considering the limiting measure in
more detail, as well as any other less restrictive means of achieving that end.
126 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
127 O’Regan J held at para 35 in South African National Defence Union:
There can be no doubt of the constitutional imperative of maintaining a disciplined
and effective Defence Force. I am not persuaded, however, that permitting members
of the Permanent Force to join a trade union, no matter how its activities are
circumscribed, will undermine the discipline and efficiency of the Defence Force.
Indeed, it may well be that in permitting members to join trade unions and in
establishing proper channels for grievances and complaints, discipline may be
enhanced rather than diminished. Whether this proves to be the case will depend,
of course, on a variety of factors including the nature of the grievance procedures
established, the permitted activities of trade unions in the Defence Force, the nature
of the grievances themselves and the attitudes and conduct of those involved.
128 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579
(29 November 1995) para 24.
129 S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001); Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC
16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999) para 26.
130 This has not prevented the Constitutional Court from doing so however.
131 Although this factor is sequentially last, it makes little sense to consider it after making the
proposed means run the gauntlet of the proportionality enquiry although the Constitutional
Court has done so on occasion.
132 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002)
para 114.
133 As was noted by O’Regan J in South African National Defence Union para 18, ‘the use of the
term “overbreadth” can be confusing, particularly as the phrase has different connotations in
different constitutional contexts’, adding ‘[c]are should therefore be taken when employing the
term’.
134 Although the Constitutional Court has equated this with the less restrictive means requirement,
for the reasons set out above, this is better placed under the notion of proportionality.
135 (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995)
para 62.
136 See Zuma; Bhulwana; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996
(3) BCLR 293; 1996 (2) SA 464 (9 February 1996); S v Julies (CCT7/96) [1996] ZACC 14;
1996 (7) BCLR 899; 1996 (4) SA 313 (11 June 1996); S v Coetzee and Others (CCT50/95)
[1997] ZACC 2; 1997 (4) BCLR 437; 1997 (3) SA 527 (6 March 1997); S v Ntsele (CCT25/97)
[1997] ZACC 14; 1997 (11) BCLR 1543 (14 October 1997); S v Mello (CCT5/98) [1998]
ZACC 7; 1998 (3) SA 712; 1998 (7) BCLR 908 (28 May 1998); S v Singo (CCT49/01) [2002]
ZACC 10; 2002 (4) SA 858; 2002 (8) BCLR 793 (12 June 2002).
137 Walters paras 26–7.
138 Notably, under the interim Constitution there was a hierarchy of rights. This is because s 33
listed a number of entrenched rights which were harder to limit, but this feature was dropped
from the final Constitution.
139 Recently, in Johncom para 19, the Constitutional Court categorically stated that the
Constitution does not ‘accord hierarchical precedence to any particular right entrenched in
the Bill of Rights over other rights referred to therein’ (our emphasis).
140 National Coalition for Gay and Lesbian Equality para 34.
141 Makwanyane para 144. Although Makwanyane was decided under the interim Constitution, no
reference was made to the formal hierarchy of rights by the Court when it described these
rights as ‘the most important of all human rights’.
142 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October
2004) para 71.
143 As Moseneke J held in Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International and Another (CCT42/04) [2005] ZACC 7; 2006 (1)
SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005) para 47: ‘Plainly, the right to free
expression in our Constitution is neither paramount over other guaranteed rights nor limitless.’
As Kriegler J held in S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC);
2001 (5) BCLR 449 (CC) (11 April 2001) para 41: ‘With us it is not a pre-eminent freedom
ranking above all others. It is not even an unqualified right.’
144 See Bernstein para 79.
145 Jordan paras 80 and 86.
146 S 36(1)(c) of the Constitution.
147 See Woolman, S (2007) The amazing, vanishing Bill of Rights South African Law Journal
124(4):762–94 at 762.
148 As an aside, there is some debate over whether some rights have an unlimitable core. In
Williams paras 55–6, the Constitutional Court raised but left open the question whether there
are rights that, despite the apparent universality of the limitation clause, cannot be limited.
Similarly, in Bernstein para 77, Ackermann J spoke of ‘a final untouchable sphere of human
freedom that is beyond interference from any public authority. So much so that, in regard to
this most intimate core of privacy, no justifiable limitation thereof can take place’.
149 Du Plessis, M and Penfold, G ‘Bill of Rights jurisprudence: Operational provisions of the Bill
of Rights’ (2008) Juta’s Annual Survey of South African Law 50.
150 (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491 (14 April 2000) para 32. The
same was held to be the case under the interim Constitution. In Bhulwana; Gwadiso para 18,
the Court held: ‘[T]he court places the purpose, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of the infringement caused by the
legislation on the other. The more substantial the inroad into fundamental rights, the more
persuasive the grounds of justification must be.’
151 Christian Education para 43. For example, in Islamic Unity Convention paras 42–3, the
Constitutional Court considered whether a legislative provision which prohibited the
broadcasting of any material ‘likely to prejudice relations between sections of the population’
was a justifiable limitation on the right to freedom of expression, among others. In its defence
of the provision, the amicus curiae (Jewish Board of Deputies) raised a number of arguments
that invoked interests that were protected by the provision, namely that ‘the interests of human
dignity and equality, which are founding values of the Constitution, and national unity, which
is an important and legitimate state objective’.
152 Jordan para 90. Concluding at para 91:
[A]lthough nearly all open and democratic societies condemn commercialised sex,
they differ vastly in the way in which they regulate it. These are matters
appropriately left to deliberation by the democratically elected bodies of each
country.
153 In National Coalition for Gay and Lesbian Equality para 57, Ackermann J noted:
A number of open and democratic societies have turned their backs on the
criminalisation of sodomy in private between adult consenting males, despite the
fact that sexual orientation is not expressly protected in the equality provisions of
their constitutions. Their reasons for doing so … fortify the conclusion which I have
reached that the limitation in question in our law regarding such criminalisation
cannot be justified under section 36(1) of the 1996 Constitution.
154 See Prince paras 119–27 where the majority undertook a thorough review of how foreign
courts have dealt with the question of allowing special exemptions for the use of prohibited
substances.
155 This is proportionality with a capital ‘P’.
156 These are often employed in concert.
157 Woolman and Botha (2008) 159.
158 De Reuck para 59.
159 De Reuck para 59.
160 De Reuck para 67.
161 De Reuck para 70.
162 Woolman and Botha (2008) 159–60.
163 (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002).
164 Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services in the Independent
Broadcasting Authority Act 153 of 1993.
165 Islamic Unity Convention para 49. The Court also held the provision to be overbroad.
166 Act 18 of 1973.
167 (CCT 26/01) [2001] ZACC 4; 2001 (11) BCLR 1175 (8 October 2001).
168 Potgieter para 7.
169 Islamic Unity Convention para 49.
170 S 126B(4) of the Defence Act 44 of 1957.
171 South African National Defence Union para 11.
172 (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631
(22 September 1995) paras 13–4.
173 Christian Education para 35. Further, in MEC for Education: Kwazulu-Natal and Others v
Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
(5 October 2007) para 73, Langa CJ noted the following regarding the concept:
At its core is the notion that sometimes the community, whether it is the State, an
employer or a school, must take positive measures and possibly incur additional
hardship or expense in order to allow all people to participate and enjoy their rights
equally. It ensures that we do not relegate people to the margins of society because
they do not and cannot conform to certain social norms.
174 Christian Education para 32.
175 Prince para 94.
176 As noted above, although the Constitutional Court has equated this with the less restrictive
means requirement, for the reasons set out above, this is better placed under the notion of
proportionality.
177 Prince para 139: ‘The use made of cannabis by Rastafari cannot in the circumstances be
sanctioned without impairing the state’s ability to enforce its legislation in the interests of the
public at large and to honour its international obligation to do so. The failure to make provision
for an exemption in respect of the possession and use of cannabis by Rastafari is thus
reasonable and justifiable under our Constitution.’
178 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October
2007).
179 Pillay para 79.
180 Pillay para 85.
181 Pillay para 112.
182 Pillay para 162. It was a hollow victory in light of the fact that the student had matriculated by
the time judgment was handed down.
183 Prince para 156.
184 Act 4 of 2000.
185 Makwanyane para 102.
186 In Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of
Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004
(5) BCLR 445 (CC) (3 March 2004) para 34, the Court noted: ‘It is not the conventional onus
of proof as it is understood in civil and criminal trials where disputes of fact have to be
resolved. It is rather a burden to justify a limitation where that becomes an issue in a section 36
analysis.’
187 (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001)
para 18.
188 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004) para 36.
189 For example, in S v Steyn (CCT19/00) [2000] ZACC 24; 2001 (1) BCLR 52; 2001 (1) SA
1146; 2001 (1) SACR 16 (29 November 2000), the Court found that the imposition of a leave
to appeal requirement on all criminal appeals from the magistrates’ courts violated the right to
appeal contained in s 35 of the Constitution. The Court was then faced with the difficulty that
the State had made little to no attempt at a justification argument. In finding that the measure
had failed the justification test, the court held at para 32:
The State has failed to adduce any evidence on the clogging of appeal rolls, the
impact of unmeritorious appeals, and the existence of any resource-related
problems or other relevant considerations that could justify the existence of the
procedure introduced by ss 309B and 309C. Clearly it was incumbent on the State
to establish factors that justify these limitations of the right of appeal … In the
present case the State produced no such data, nor did it refer to any objectively
determinable factors that could be considered in justification of the challenged
provisions.
190 Currie, I and De Waal, J (2005) The Bill of Rights Handbook 5th ed 237–38.
191 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003 (4) BCLR 357 (11 March 2003) para 20.
192 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009)
para 25.
193 (CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC); 2009 (6) SA 632 (CC); 2009 (11)
BCLR 1105 (CC) (15 July 2009) para 63.
194 See chs 12–16.
195 S 9(3) states: ‘The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language
and birth.’ S 9(4) states: ‘No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National legislation must be enacted
to prevent or prohibit unfair discrimination.’
196 (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997)
para 48. See also Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (6)
BCLR 759; 1997 (3) SA 1012 (18 April 1997).
197 In Hugo paras 41–3, the Constitutional Court held that:
Each case, therefore, will require a careful and thorough understanding of the
impact of the discriminatory action upon the particular people concerned to
determine whether its overall impact is one which furthers the constitutional goal of
equality or not. A classification which is unfair in one context may not necessarily
be unfair in a different context … To determine whether that impact was unfair it is
necessary to look not only at the group who has been disadvantaged but at the
nature of the power in terms of which the discrimination was effected and also at
the nature of the interests which have been affected by the discrimination.
198 Woolman and Botha (2013) 34.6. Similarly, Currie and De Waal (2005) 237–8:
In the case of the right to equality it is difficult to apply the usual two-stage analysis
of a right and its limitation. Indeed, it is far from clear whether s 36 has any
meaningful application to s 9. This is because it is, for instance, difficult to see how
any discrimination that has already been characterized as “unfair” (because it is
based on attributes and characteristics which have the potential to impair the
fundamental human dignity of persons as human beings) can ever be acceptable in
an open and democratic society based on human dignity, freedom and equality.
Similarly, it is difficult to see how one could justify as “reasonable” a law which
differentiates for reasons not rationally related to a legitimate government purpose,
and which is therefore arbitrary.
199 In Bhe para 68 the Constitutional Court concluded that it was unfair discrimination but still
applied section 36: ‘The only question that remains to be considered is whether the
discrimination occasioned by section 23 and its regulations is capable of justification in terms
of section 36 of our Constitution.’ See also Geldenhuys v National Director of Public
Prosecutions and Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310 (CC); 2009 (1)
SACR 231 (CC); 2009 (5) BCLR 435 (CC) (26 November 2008). The same approach was
adopted under the interim Constitution. See Larbi-Odam para 18.
200 In First National Bank paras 47–70, Ackermann J set out the operation of s 25 in detail.
201 First National Bank para 100.
202 First National Bank para 110: ‘It might be contended that once the deprivation has been
adjudged to be arbitrary, no scope remains for justification under section 36.’
203 First National Bank para 110.
204 First National Bank para 110.
205 The First National Bank para 100 test includes as a consideration: ‘Depending on such
interplay between variable means and ends, the nature of the property in question and the
extent of its deprivation, there may be circumstances when sufficient reason is established by,
in effect, no more than a mere rational relationship between means and ends; in others this
might only be established by a proportionality evaluation closer to that required by
section 36(1) of the Constitution. (our emphasis)’
206 Woolman and Botha (2008) 149.
207 Pillay para 40.
208 Pillay para 40.
209 Act 3 of 2000.
210 S 4 of the PAJA.
211 Act 66 of 1995.
212 (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002)
para 14.
213 (CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December
2007) para 76.
214 The relevant part of this provision reads: ‘In order to advance such reconciliation and
reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated
with political objectives and committed in the course of the conflicts of the past.’
215 (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) para 38:
In the result I am satisfied that section 20(7) [of the Promotion of National Unity
and Reconciliation Act 34 of 1995] is not open to constitutional challenge on the
ground that it invades the right of a victim or his or her dependant to recover
damages from a wrongdoer for unlawful acts perpetrated during the conflicts of the
past. If there is any such invasion it is authorised and contemplated by the relevant
parts of the epilogue.
216 S 173 of the Constitution states: ‘The Constitutional Court, Supreme Court of Appeal and High
Courts have the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice.’
217 (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL
18339 (CC) (21 September 2006) para 42. The majority concluded at para 46 that, in the
circumstances of the case, the SCA had struck ‘an appropriate relationship of proportionality
between the right to freedom of expression and the court’s obligation to ensure that the
proceedings before it are fair’.
218 South African Broadcasting Corporation para 92.
219 South African Broadcasting Corporation para 92.
220 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)
para 55.
221 Du Plessis and Penfold (2008) 70–1.
222 Independent Newspapers para 83.
Constitutional remedies
11.1 Introduction
11.2 Declarations of invalidity
11.2.1 Introduction
11.2.2 Reading down
11.2.3 Severance
11.2.4 Notional severance
11.2.5 Reading in
11.3 Limiting the retrospective effect of an order of invalidity
11.4 Suspension of an order of invalidity
11.5 A declaration of rights
11.6 An interdict
11.7 Constitutional damages
11.8 Meaningful engagement
Summary
11.1 Introduction
One of the most important characteristics of a judicially enforceable
Constitution is that courts are empowered to hand down orders that address
infringements of the Constitution in a manner that assists litigants and those
in a similar situation to the litigants. In those cases where a court has found
that law or conduct unjustifiably infringes a fundamental right or does not
promote the values in the Bill of Rights, it therefore has to decide what the
most appropriate remedy would be to resolve the problem. It is important
when litigating constitutional matters that litigants know from the outset
what remedy they want the court to provide. Courts are reluctant to grant
remedies that are impractical, that would not cure the constitutional defect
or that would tread too drastically on the powers of the other branches of
government. Most of this chapter deals with the ways in which the courts
try to limit the impact of declaring law or conduct unconstitutional.
A remedy is defined as ‘a process of legal redress embracing all the legal
procedures that a person has to follow to redress the violation of their
rights’.1 It can also be understood in a narrower sense of the order made by
a court in response to a proven violation of a person’s rights.2
As these definitions indicate, a remedy is the mechanism used to repair
an infringement of rights once a court has interpreted the right and found
the conduct of a government department or a private individual to be
lacking. To a significant extent, therefore, the enforcement of rights and
remedies determines what a right means in practice in the lives of the
parties.3
Given its function as a mechanism used to repair an infringement of
rights, it is not surprising that an important principle of the law of
constitutional remedies is that successful litigants should obtain the relief
they seek to vindicate their rights. In S v Bhulwana, S v Gwadiso, for
example, the Constitutional Court held that ‘[c]entral to a consideration of
the interests of justice in a particular case is that successful litigants should
obtain the relief they seek’.4 When a court determines what the appropriate
remedy in a case will be, it engages in a profoundly practical exercise. It
has to consider the consequences of granting or not granting a particular
remedy, both for the litigant who brought the case and for the state and
society at large.
CRITICAL THINKING
When relief cannot be afforded to successful
litigants
Although it is generally accepted that a successful litigant
should be afforded the relief he or she seeks, there are
some exceptions to the principle. These exceptions are:
• where the relief cannot properly be tailored by a court 5
• where even though a litigant would otherwise be
successful, other interests or matters preclude an order
in his or her favour 6
• where an order would otherwise produce such disorder
or administrative difficulties that the interests of justice
served by an order in favour of a successful litigant are
outweighed by the social dislocation such an order might
occasion.7
In these circumstances, the broad issue of the
administration of justice is taken into account in the
determination of just and equitable remedies. This means
that the granting of remedies by a court, while guided by
legal principles, is also based partly on pragmatism and
with a keen eye to the potentially disruptive effects of
granting the ‘wrong’ remedy.
These points are clearly illustrated in AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v
CEO of the South African Social Security Agency and
Others.8
In this case the appellant applied for an order setting
aside a multibillion rand tender that had been granted to a
company called Cash Paymaster Services (Pty) Ltd by the
South African Social Security Agency (SASSA). The tender
was for the payment of social grants. The appellant, which
was one of the losing bidders, based its application on the
grounds that the tender process infringed section 217(1) of
the Constitution because it was unfair. Section 217(1)
provides that ‘when an organ of state … contracts for
goods and services, it must do so in accordance with a
system which is fair, equitable, transparent, competitive
and cost-effective’.
The Supreme Court of Appeal (SCA) rejected the
appellant’s argument and refused to set the tender aside.
In arriving at this conclusion, however, the Court held that
even if the tender process had been unfair it would not
have granted an order setting the tender aside. This is
because such an order would have significantly disrupted
the payment of social grants and this would have had
serious consequences not only for Cash Paymaster
Services itself, which was completely innocent, but also for
the millions of poor South Africans who receive social
grants every month. In so far as the recipients of social
grants are concerned, the Court stated that:
We need no evidence to know the immense disruption that would
be caused, with dire consequences to millions of elderly, children
and the poor, if this contract were to be summarily set aside. The
prospect of that occurring has prompted the Centre for Child Law
to intervene as amicus curiae in the case. We value the contribution
they have made but they had no cause for concern. It is
unthinkable that that should occur.9
The kinds of remedies a court may grant depend on the manner in which the
Bill of Rights applies to a dispute. In this respect a distinction may be
drawn between:
• the direct vertical application of the Bill of Rights
• the direct horizontal application of the Bill of Rights
• the indirect vertical and horizontal application of the Bill of Rights.
In those cases where the Bill of Rights applies directly and vertically,
sections 38 and 172(1) of the Constitution govern the kinds of remedies a
court may grant. In those cases where the Bill of Rights applies directly and
horizontally, sections 8(2) and 8(3) of the Constitution govern the kinds of
remedies a court may grant. In those cases where the Bill of Rights applies
indirectly, section 39(2) of the Constitution governs the kinds of remedies a
court may grant.
This distinction is important because sections 38 and 172(1) of the
Constitution confer on the courts the power to apply and develop unique
constitutional law remedies such as declarations of invalidity, constitutional
damages and meaningful engagement. Sections 8(2), 8(3) and 39(2) of the
Constitution simply provide, however, that the courts must use and develop
the common law and statutory remedies. For the purposes of this chapter,
therefore, we are going to focus only on the kinds of remedies a court may
grant when the Bill of Rights applies directly and vertically.
When it comes to identifying the kinds of remedies a court may grant
when the Bill of Rights applies directly and vertically, it is helpful to start
with section 172(1)(a) of the Constitution. This section provides that
‘[w]hen deciding a constitutional matter a court must declare that any law
or conduct that it is inconsistent with the Constitution is invalid to the
extent of its inconsistency’.
Apart from issuing a declaration of invalidity, section 172(1)(b) of the
Constitution also provides that when deciding a constitutional matter, a
court may make any order that is ‘just and equitable’. The Constitutional
Court has used this power to develop a number of mechanisms aimed at
regulating the impact of a declaration of invalidity. Among these are
severance, notional severance, reading in, controlling the retrospective
effect of a declaration of invalidity and temporarily suspending a
declaration of invalidity.
Unlike severance, notional severance and reading in, the power to
control the retrospective effect of a declaration of invalidity is expressly
referred to in section 172(1)(b)(i) and to suspend temporarily a declaration
of invalidity is expressly referred to in section 172(1)(b)(ii) of the
Constitution.10
The constitutional remedies referred to in sections 172(1)(a) and (b) of
the Constitution must also be read together with section 38. This section
provides that a court may grant ‘appropriate relief, including a declaration
of rights’ whenever a right in the Bill of Rights has been violated or
threatened. The Constitutional Court has used this power to develop a
number of additional remedies. Among these are interdicts, constitutional
damages and meaningful engagement.
Table 11.1 The remedies available for different breaches of the
Constitution
11.2.1 Introduction
As we have seen, section 172(1)(a) of the Constitution states that when
deciding a constitutional matter within its power, a court ‘must declare that
any law or conduct that is inconsistent with the Constitution is invalid to the
extent of the inconsistency’. Section 172(1)(a) does not confer a discretion
on the courts. Where a law or provision conflicts with the Constitution, a
court is obliged to declare the law or provision invalid to the extent of the
inconsistency.12 The same applies to the conduct of a person or institution
bound by the Constitution.13
The obligation to declare law or conduct that is inconsistent with the
Constitution to be invalid flows logically from the fact that the Constitution
is supreme. It is not surprising, therefore, that section 2 of the Constitution
expressly provides that ‘[t]his Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled’.
An important consequence of the supremacy of the Constitution is that
any law or conduct in conflict with the Constitution is invalid from the
moment that the conflict arises. This is the so-called doctrine of objective
invalidity. Although the invalidity will only have legal effect once a court
has confirmed that there is a conflict between the Constitution and
legislation or the actions of an individual, the invalidity does not only arise
at the moment when it is affirmed by the court.14 This means that an order
of invalidity usually has retrospective effect as the court merely confirms
that the legislation or the actions of an individual were invalid from the
moment the conflict with the Constitution arose.
The Constitutional Court adopted the doctrine of objective invalidity in
its judgment in Ferreira v Levin NO and Others; Vryenhoek and Others v
Powell NO and Others.15 In this case, the Court held as follows:
The Court’s order does not invalidate the law; it merely
declares it to be invalid. It is very seldom patent, and in
most cases is disputed, that pre-constitutional laws are
inconsistent with the provisions of the Constitution. It is
one of this Court’s functions to determine and pronounce
on the invalidity of laws, including Acts of Parliament.16
This does not detract from the reality that pre-existing laws either remained
valid or became invalid upon the provisions of the Constitution coming into
operation. In this sense, laws are objectively valid or invalid depending on
whether they are or are not inconsistent with the Constitution. The fact that
a dispute concerning inconsistency may only be decided years afterwards
does not affect the objective nature of the invalidity. The issue of whether a
law is invalid or not does not in theory, therefore, depend on whether, at the
moment when the issue is being considered, a particular person’s rights are
threatened or infringed by the offending law or not.17
When a person alleges that a statutory provision is constitutionally
invalid, a court must first attempt to interpret the impugned provision in a
way that would render it constitutionally valid. This is called reading down.
If this is not possible, however, the court must declare the law invalid.
Instead of simply declaring the law to be completely invalid, however, a
court should attempt to limit the substantive impact of the declaration by
severing the offending words or reading in new words to cure the
constitutional defect.18 It may also be necessary to limit the potentially
disruptive impact of the order by suspending the order of invalidity 19 or
limiting its retrospective effect. We will deal with each one of these
situations in turn.
However, as we consider all the permutations for remedies, it is
important to keep in mind that the overarching consideration taken into
account by the courts is the interests of justice and equity. What is required
is to vindicate the rights and interests of the successful litigant and to
provide effective relief with the least amount of disruption. In Fose, decided
under the interim Constitution, Ackermann J held:
Given the historical context in which the interim
Constitution was adopted and the extensive violation of
fundamental rights which had preceded it, I have no
doubt that this Court has a particular duty to ensure
that, within the bounds of the Constitution, effective
relief be granted for the infringement of any of the rights
entrenched in it. In our context an appropriate remedy
must mean an effective remedy, for without effective
remedies for breach, the values underlying and the rights
entrenched in the Constitution cannot properly be
upheld or enhanced.20
Although a court therefore has a general obligation to grant a remedy that is
just and equitable to litigants who successfully raise a constitutional
complaint, there are exceptions to this rule. For example, where a court
cannot properly tailor the relief while still providing an effective remedy,
the court may have to revert to other remedies that are less effective or it
may even decline to hear the appeal.21 In some cases, other interests or
matters, for example the best interest of the child over whom litigation is
being conducted, would preclude an order in favour of a successful
litigant.22
Where an order would otherwise produce such disorder or administrative
difficulties that the interests of justice served by such an order in favour of a
successful litigant are outweighed by the social dislocation such an order
may occasion, the court may also decline to provide an effective remedy.23
However, there are several ways in which the court can fashion its remedies
to avoid these problems while still providing effective relief. We now turn
to the various ways in which the court minimises the disruptive effect of an
order of invalidity while providing effective relief to the successful litigant.
11.2.3 Severance
Section 172(1)(a) requires a court to declare law or conduct invalid to the
extent of its inconsistency with the Constitution.32 A court therefore does
not have to declare invalid a complete section of the legislation if it is
possible to cut the bad parts out of the provision and retain those parts that
are not unconstitutional. This is called severance. The court will then strike
down a particular section, subsection or individual words in a subsection of
a law but leave the rest of the law intact.
The test for severance is whether ‘the good is not dependent on the bad’
33 and whether the good can be separated from the bad. The question to ask
is whether it is possible to give effect to the good part of the provision that
remains after the severance of the bad part. In other words, after the
exercise in severance in which the bad part is declared invalid, will the
good part still give effect to the main objective of the statute? ‘The test has
two parts: first, is it possible to sever the invalid provisions and second, if
so, does what remains give effect to the purpose of the legislative scheme?’
34
It is not always possible to sever the good from the bad while still giving
effect to the purpose of an impugned provision. In such case, the court has
to declare the provision as a whole invalid.35 The court will be circumspect
because of concerns about overstepping the separation of powers. It is
usually the legislature – and not the judiciary – that should draft and amend
legislation. Where an offending legislative provision is so overbroad that
the blame for the constitutional invalidity of the section ‘cannot be laid at
the door of any one word, or group of words, but rather permeates the entire
text’, then severance would not be appropriate.36
In Case and Another v Minister of Safety and Security and Others, Curtis
v Minister of Safety and Security and Others,37 for example, the
Constitutional Court had to consider the constitutionality of a censorship
provision enacted during the apartheid years that was so overbroad that it
clearly infringed on the right to freedom of expression. Because the section
was so overbroad, the Court could not sever the good from the bad and had
to strike down the provision as a whole. In arriving at this conclusion, the
Court held that if it had to:
apply a blue pencil to each and every noun form and
transitive verb that presents overbreadth problems, we
effectively would write a new provision that bears only
accidental resemblance to that enacted by Parliament. If,
as appears to be the case, the scheme behind the statute
was to impose a comprehensive scheme of censorship to
give effect to a particular moral, cultural and political
world-view, it hardly does justice to the ‘main object’
thereof for this Court to pare it down to prohibit only
that discrete set of sexually-oriented expressions that this
Court believes may constitutionally be restricted. For
this Court to attempt that textual surgery would entail it
departing fundamentally from its assigned role under
our Constitution. It is trite but true that our role is to
review, rather than to re-draft, legislation. This Court
has already had occasion to caution against judicial
arrogation of an essentially legislative function in the
guise of severance.38
11.2.5 Reading in
When the court employs the remedy of reading in, it literally read words
into an unconstitutional legislative provision to cure that provision of its
unconstitutionality. As such, it is exactly the opposite of severance where
the court strikes out words from an unconstitutional provision to cure it of
its unconstitutionality.46 It follows that reading in is used in cases where a
legislative provision is unconstitutional because of the omission of certain
words and phrases.47 However, the courts have also read words into a
provision to narrow the reach of the provision that ‘is unduly invasive of a
right’.48 The court then orders that certain words or phrases should be read
into the provision to render it constitutionally valid.
It is important to note that reading in occurs only after the court has
established that a legislative provision is in conflict with the Constitution
and has declared the provision invalid. As such, reading in must be
distinguished from reading down which is a technique used to avoid an
order of invalidity altogether. Reading down is a method of statutory
interpretation required by section 39(2) of the Constitution and occurs to
avoid a finding of constitutional invalidity. Reading in, however, is a
remedy that is granted by the court after it has declared invalid an impugned
provision of legislation to cure the provision of its unconstitutionality.49
Reading in is an invasive remedy and raises separation of powers
concerns.50 However, the Constitutional Court held in National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs that there is in
principle no difference between severance and reading in. In both cases,
legislation enacted by parliament ‘is being altered by the order of a court. In
the one case by excision and in the other by addition’.51 The Court has
argued that reading in is justified, particularly if we embrace the view of
separation of powers as a structured dialogue between the three branches of
government. Reading in does not give the judiciary the final word on how
legislative provisions should be formulated:
It should also be borne in mind that whether the remedy
a court grants is one striking down, wholly or in part; or
reading into or extending the text, its choice is not final.
Legislatures are able, within constitutional limits, to
amend the remedy, whether by re-enacting equal
benefits, further extending benefits, reducing them,
amending them, ‘fine-tuning’ them or abolishing them.
Thus they can exercise final control over the nature and
extent of the benefits.52
Before reading words into a statute a court has to ensure, first, that the
newly created provision to which words have been added is consistent with
the Constitution and its fundamental values and, second, that the result
achieved would interfere with the laws adopted by the legislature as little as
possible. As long as there are still many provisions on the statute books
from the pre-constitutional era, ‘the first consideration will in those cases
often weigh more heavily than the second’.53
However, it will not always be appropriate to read words into an
impugned provision to cure its unconstitutionality. As the Constitutional
Court stated in National Coalition for Gay and Lesbian Equality v Minister
of Home Affairs:
… it will not be appropriate to read words in, unless in
so doing a court can define with sufficient precision how
the statute ought to be extended in order to comply with
the Constitution. Moreover, when reading in (as when
severing) a court should endeavour to be as faithful as
possible to the legislative scheme within the constraints
of the Constitution. Even where the remedy of reading in
is otherwise justified, it ought not to be granted where it
would result in an unsupportable budgetary intrusion. In
determining the scope of the budgetary intrusion, it will
be necessary to consider the relative size of the group
which the reading in would add to the group already
enjoying the benefits. Where reading in would, by
expanding the group of persons protected, sustain a
policy of long standing or one that is constitutionally
encouraged, it should be preferred to one removing the
protection completely.54
Despite the warning to avoid reading in where it would result in an
unsupportable budgetary intrusion, the Court has read words into a statute
even where it did have budgetary implications.55
CRITICAL THINKING
CRITICAL THINKING
11.6 An interdict
Interdicts are usually directed at future events and compel a defendant (or
any party to the litigation) to perform a task or to refrain from undertaking a
specific course of action. Apart from mandatory interdicts and prohibitory
interdicts, the Constitutional Court has held that a structural interdict may
be an appropriate remedy when a right in the Bill of Rights has been
unjustifiably infringed.
A structural interdict is also referred to as a supervisory interdict. A
structural interdict is a type of injunction which ‘requires the government to
report back to the court at regular intervals about the steps taken to comply
with the Constitution’.96 Essentially, this interdict compels the violator to
rectify the breach of fundament rights under court supervision. This is
usually achieved by requiring the official to report to the court on his or her
efforts to comply with the order. This allows the courts to exercise a
monitoring role over the administration of the order in cases that affect
individual rights. Structural interdicts are often used when the courts are
faced with any form of recalcitrant or incompetent official behaviour.
As the points set out above indicate, a structural interdict is an invasive
remedy. This is because it allows the courts to inspect proposed plans and to
ensure that they are not constitutionally suspect.97 Despite its invasive
nature, this remedy is used to avoid violating the separation of powers
doctrine since the courts defer to the authority and expertise of the
executive arm of government by allowing the relevant government
department to formulate plans to give effect to the Constitution.
The Constitutional Court initially seldom issued structural interdicts.
However, as we shall see when we discuss social and economic rights
enforcement in chapter 16, the Court has issued several supervision and
engagement orders in eviction cases.98 The first time the Court issued a
structural interdict was in the case of August and Another v Electoral
Commission and Others 99 where the Electoral Commission was found to
have violated prisoners’ rights to vote. Recognising that it is the Electoral
Commission’s mandate to regulate the election process according to the
applicable legislation, the Court directed the Electoral Commission to
rectify the violation of constitutional rights. The approach taken by the
Court was to require the Electoral Commission to furnish it with an
affidavit within two weeks setting out exactly how the Commission would
comply with the order.
The Constitutional Court issued its second structural interdict in the case
of Sibiya and Others v Director of Public Prosecutions: Johannesburg High
Court and Others (Sibiya I).100 This case arose as a result of the 1995 case
of S v Makwanyane and Another 101 where the Court declared the death
penalty to be inconsistent with the interim Constitution and ordered the
substitution of lawful punishments for prisoners who had been sentenced to
death. However, a decade later, finding that ‘[t]he process of the
substitution of sentences has taken far too long’,102 the Court issued a
structural interdict so that it could supervise the sentence-conversion
process. The order required government to report by not later than
15 August 2005 to the Court on the enforcement of the order.103 Once a
comprehensive plan had been formulated, a final judgment was handed
down and the resolution of the matter was achieved.104 This was
notwithstanding that government had to make an application for an
extension of the timeframe for compliance with the order.105
In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
and Others,106 the Constitutional Court granted an order for the eviction of
residents of the Joe Slovo Informal Settlement in Cape Town. However, the
Court required the applicants and the respondents, through their respective
representatives, to engage meaningfully with each other with a view to
reaching agreement on how the eviction should occur. The Court further
directed the parties to report back to the Court on the implementation of its
order as well as the allocation of permanent housing opportunities to those
affected by the order. It further instructed that in the event of the order not
being complied with by any party, or in the event of unforeseen difficulties,
any party would have the right to approach the Court for an amendment,
supplementation or variation of its order.
Structural interdicts usually take the form of a series of steps in pursuit
of achieving the mutually acceptable and achievable implementation of a
plan which provides for constitutional entitlements. The steps are as
follows:
• The starting point is a declaration by the court that the conduct is not
consonant with the provisions and duties stipulated in the Constitution.
• Thereafter, the court prescribes the conduct which is expected to bring
the deficient conduct into conformity with the constitutional imperatives.
• The process is not a dictatorial, top-down process. The court invites the
government department that has failed to perform its constitutional
obligations to submit a comprehensive plan. This plan must rectify the
incompatibility between the constitutional provisions and the conduct (or
omission) that is being complained of.
• The responsible government department draws up the plan, taking
cognisance of the department’s budgetary and human resource
constraints. The department must also take into account the sustainability
of the plan in terms of the timeframe set for its implementation. In this
regard, the department should set a series of achievable deadlines so that
progress can consistently be monitored.
• Once the department has drawn up the plan, it presents the plan to the
court. At this stage, the court invites comment by the plaintiff and any
other interested parties to the litigation.
• The court then incorporates any constructive comments into the plan.
The plan then becomes a binding order of court which the department
must implement strictly in accordance with the deadlines and achievable
targets set out in the plan.
CRITICAL THINKING
When the state fails to obey court orders
If the responsible government department does not draw
up and submit a plan to the court, the court will reluctantly
draw up its own plan which the government department will
then have to implement. In such a case, the court may rely
on the assistance of any other parties to the litigation who
express an interest in assisting the court to craft the plan.
The consequence of this is that the judiciary then appears
to intrude into the domain of the executive in the
formulation of policy choices and the methods of
implementation.
However, this argument can be countered with reference
to the rule of law which is a founding value of our
constitutional democracy. In South Africa, many people do
not have the financial or other resources to approach a
court to have legal duties owed to them enforced. When an
order is handed down by a court, the rule of law is
seriously threatened if the state fails to obey court orders.
The provisions of section 34, read with sections 165 and
173 of the Constitution, place positive duties on the state to
ensure respect for the rule of law and adherence to the law
by providing citizens with effective mechanisms for
resolving disputes between themselves or between
themselves and the state. Failure to comply with court
orders then represents an attack on the effectiveness of
the legal system and the right to have legal duties enforced
by the state.
CRITICAL THINKING
CRITICAL THINKING
SUMMARY
12.1 Introduction
12.2 The right to equality and non-discrimination
12.2.1 Introduction: substantive equality versus formal
equality
12.2.2 Differentiation and discrimination
12.2.3 Values underlying the right to equality: human dignity
and equality
12.2.4 Attacking the constitutionality of a legislative
provision: section 9 of the Constitution
12.2.4.1 Introduction
12.2.4.2 Mere differentiation: section 9(1)
12.2.4.3 Redress measures (affirmative action): section 9(2)
12.2.4.3.1 Basic approach
12.2.4.3.2 The test for redress (affirmative action) measures in
terms of section 9(2)
12.2.4.4 Unfair discrimination: section 9(3)
12.2.4.4.1 Does the differentiation amount to discrimination?
12.2.4.4.2 Is the discrimination unfair?
12.2.5 Non-statutory imposed discrimination: the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of
2000
12.3 The right to human dignity
12.3.1 Introduction
12.3.2 Human dignity as a right and as a value
12.4 The right to privacy
12.4.1 Introduction
12.4.2 Scope and content of the right to privacy
12.4.3 Privacy regarding sexual intimacy
Summary
12.1 Introduction
The value of dignity is a central value underlying the Constitution and we
could even say it is the cornerstone of the Constitution and the rights
protected in it.1 This is made clear by section 1(a) of the Constitution,
which states that the Republic of South Africa is founded on the values of
human dignity, the achievement of equality and the advancement of human
rights and freedoms.2 When considering the scope and content of the
various rights in the Bill of Rights, it is important to understand that human
dignity informs constitutional adjudication and interpretation and is ‘a value
that informs the interpretation of many, possibly all, other rights’.3 It is a
‘motif which links and unites equality and privacy’, and which ‘runs right
through the protections offered by the Bill of Rights’.4 The value of dignity
permeates the Bill of Rights to contradict South Africa’s apartheid past ‘in
which human dignity for black South Africans was routinely and cruelly
denied’.5
As we shall see, dignity is not only a value that permeates the Bill of
Rights and the Constitution as a whole; it is also a justiciable and
enforceable right. In many cases where the value of human dignity is
offended, the primary constitutional breach occasioned may be of a more
specific right. Arguably, the most important of these rights in the South
African context – given its history of discrimination – is the right to
equality.6 As we shall see, there is a strong link between the value of
dignity and the enforcement of the right to equality and non-discrimination.
The truth is that the value of dignity also undergirds most, if not all, of the
other rights contained in the Bill of Rights.
It is not easy to pin down the content of the value of human dignity.7 The
Constitutional Court has recognised that, in the context of Bill of Rights
adjudication, this value of human dignity recognises the inherent worth of
all individuals as members of our society, as well as the value of the choices
that they make. It comprises the ‘deeply personal understanding we have of
ourselves, our worth as individuals and our worth in our material and social
context’.8 The value of dignity asserts that every human being counts; that
every human being has infinite value, regardless of his or her personal
circumstances or actions. Given that every human being counts, every
human being is entitled to be treated as a human being and to be valued. As
we discuss the various rights in the Bill of Rights, it will be important to
keep in mind that this notion of human dignity informs the approach taken
by the Constitutional Court in interpreting and applying the various
substantive rights.
In this chapter we focus on the right to equality, the right to dignity and
the right to privacy, the denial of which can arguably be said to have
resulted in some of the most egregious forms of injustice during the
apartheid era and continue to rob many people of respect and concern. The
denial of these rights has drastic direct and personal effects on individuals,
but it would be a mistake to view these rights only in such individualistic
terms. Often, the manner in which society is structured, the cultural
assumptions deeply embedded in society and the vast inequalities between
rich and poor have a direct and lasting effect on the denial of these rights. It
is therefore impossible not to consider these rights against the backdrop of
the broader social, economic and political context and to remain mindful of
how the broader context influences our understanding of the operation of
these rights. It would therefore be a mistake to analyse these rights and the
jurisprudence of the Constitutional Court relating to these rights (or any
other rights protected in the Bill of Rights for that matter) in an a-contextual
or overtly formalistic manner. It must always be remembered that rights are
aimed at protecting individual human beings and at promoting their well-
being and ability to make meaningful life choices. This means that the
actual lived reality of individuals and the effects of impugned actions or
omissions by both the state and private parties will always be centre stage
when considering breaches of the rights in the Bill of Rights.9
In the following sections we first set out the basic assumptions underlying
the substantive approach to equality as well as the values implied by the
right to equality. We then focus on two distinct situations in which the right
to equality arises:
• cases where individuals are treated differently but where this different
treatment does not explicitly address the effects of past and ongoing
prejudice and discrimination
• cases where the different treatment is explicitly justified on the grounds
that it addresses the effects of past and ongoing prejudice and
discrimination (so-called affirmative action measures or better referred to
as redress measures).
We also discuss the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA).25 The PEPUDA gives legislative effect to
section 9 of the Constitution and is often relied on instead of section 9 itself.
12.2.2 Differentiation and discrimination
The idea of differentiation lies at the heart of South Africa’s equality
jurisprudence.26 Not all forms of differentiation are constitutionally
problematic: relatively benign forms of differentiation between people or
groups of people permeate human relations in a modern society and the
Constitution does not usually prohibit the law from making such
distinctions. A modern state is required to regulate the affairs of its
inhabitants extensively. It is impossible to do so without differentiation and
without classifications that treat people differently and which affect people
differently.27
Moreover, private individuals or institutions differentiate daily between
individuals in many ways. These numerous forms of differentiation are
seldom problematic from a constitutional law perspective and the vast
majority of cases in which people or groups of people are treated differently
from one another are legally benign.
However, some forms of differentiation by the state or by private parties
do infringe on the right to equality guaranteed in section 9 of the
Constitution. As we shall see, the Constitutional Court draws a sharp
distinction between mere differentiation dealt with in terms of section 9(1)
of the Constitution and discrimination dealt with in terms of section 9(3) of
the Constitution.
The consequence of this distinction between mere differentiation and
discrimination is that questions around discrimination dominate the
Constitutional Court’s approach to equality.28 It is clear that for a claimant
to succeed with an equality challenge, it will usually (but not in every case)
be necessary to frame a claim about a breach of section 9 of the
Constitution as one of discrimination rather than in terms of a general claim
to equality or a claim of differentiation. The Constitutional Court has
chosen to focus its equality jurisprudence on the notion of discrimination
rather than on the more ‘complex’, ‘elusive’ and ‘empty’ 29 notion of
equality or on all cases of differentiation. This choice stems from a need to
provide a suitably ‘structured’ and ‘focused’ legal framework that will
provide an effective and easy-to-apply legal test to determine whether the
equality guarantee has been breached.30
The Constitutional Court views the concept of non-discrimination as
providing the legal mechanism that will deal effectively with egregious
forms of inequality and different treatment while avoiding the opening of
the litigation floodgates. By focusing on targeted forms of discrimination
instead of on the more general equality guarantee dealing with all forms of
differentiation, the Court aims to discourage well-resourced litigants in the
private sector from challenging every conceivable form of legal
differentiation. The Constitutional Court therefore focuses on the
importance of non-discrimination and sees it as a safe and more or less
predictable way of dealing with the difficult issues of equality with which it
has been, and no doubt will continue to be, confronted.31
CRITICAL THINKING
Apart from the value of dignity, the Constitutional Court has also affirmed
that the value of equality is relevant for any understanding of section 9 of
the Constitution especially when dealing with the restitutionary aspects of
equality. In Van Heerden, the Constitutional Court affirmed the
Constitution’s commitment to strive for a society based on social justice.
Equality thus requires more than equal protection before the law and non-
discrimination, ‘but also the start of a credible and abiding process of
reparation for past exclusion, dispossession, and indignity within the
discipline of our constitutional framework’.46 As the Court per Moseneke
DCJ argued:
What is clear is that our Constitution and in particular
section 9 thereof, read as a whole, embraces for good
reason a substantive conception of equality inclusive of
measures to redress existing inequality. Absent a positive
commitment progressively to eradicate socially
constructed barriers to equality and to root out
systematic or institutionalised underprivilege, the
constitutional promise of equality before the law and its
equal protection and benefit must, in the context of our
country, ring hollow.47
12.2.4.1 Introduction
Different legal tests apply to different situations in which an equality
complaint is lodged. First, where a distinction between different people
stems from a legislative provision and the litigant asks a court to declare
that legislative provision invalid, the court has to rely directly on
sections 9(1), 9(2) or 9(3) of the Constitution. These three sections apply in
different situations and, as we shall see, require the court to apply a
different legal test in each case. It is important to identify whether a set of
facts dealing with a complaint about different treatment between people or
groups of people fits under section 9(1), 9(2) or 9(3). The court then applies
the relevant test applicable to that set of facts. When attacking the
constitutionality of a legislative provision, it is therefore important, at the
outset, to determine whether the attack will be based on section 9(1), 9(2) or
(9(3). A direct reliance on section 9 is required in such cases because
legislation can only be invalidated by invoking the Constitution itself. This
is because the Constitution is supreme and therefore superior to the
legislative provision under attack.
Second, where a litigant attacks the actions of a public official or private
entity on equality grounds but this attack does not relate to the possible
invalidation of a legislative provision, the litigant will have to rely on the
relevant provisions of the PEPUDA. This is because the principle of
subsidiarity requires a litigant who claims that one of his or her
constitutional rights has been infringed must rely on legislation adopted to
protect that right. The litigant may thus not rely on the underlying
constitutional provision directly. Unless the litigant wants to attack the
constitutionality of the legislative provision itself, he or she cannot rely on
section 9 as the PEPUDA gives effect to section 9 and will be the first port
of call.48 Given that the PEPUDA gives effect to section 9 of the
Constitution, it must be interpreted in the light of the Constitutional Court’s
jurisprudence on section 9. We therefore first discuss the Constitutional
Court’s jurisprudence regarding section 9 before turning to the PEPUDA as
the general principles discussed when dealing with section 9 apply in the
interpretation of the PEPUDA.
As noted above, section 9 deals with three distinct situations. First,
section 9(1) applies in cases where the legislative provision differentiates
between people or groups of people, but this differentiation is not based,
either directly or indirectly, on one of the grounds listed in section 9(3) or
on an analogous ground that is similar to the grounds explicitly listed in
section 9(3). We refer to such cases as cases of mere differentiation.49
In Prinsloo, the Court explained that it would be impossible to govern a
modern country like South Africa efficiently and to harmonise the interests
of all its people for the common good without differentiation and
classifications which treat people differently and affect them differently.
Such differentiations which are necessary to regulate the affairs of a
country, or mere differentiations, will, according to the Court, rarely
constitute discrimination in and of themselves.50 Mere differentiation
therefore refers to the many distinctions that the law makes that have
nothing to do with the kind of discrimination based on race, sex, gender or
other grounds listed in or similar to those listed in section 9(3) of the
Constitution. For example, where the legislative provision makes a
distinction between lawyers and doctors, a litigant attacking that provision
will have to rely on section 9(1) as section 9(3) does not explicitly prohibit
discrimination against a group of people who are identified as doctors or
lawyers.
Second, section 9(2) applies to cases where the legislative provision
explicitly aims to give effect to restitutionary measures. These measures are
also popularly known as affirmative action measures. If a legislative
provision aims to implement a restitutionary measure, the court first tests
the constitutionality of that provision under section 9(2). If the
restitutionary measure complies with section 9(2), that is the end of the
enquiry. The provision is constitutionally valid and cannot be tested against
section 9(3).51 As we shall see, this is important as the onus of proving or
disproving an infringement of section 9 may differ depending on whether a
litigant relies on section 9(2) or section 9(3). However, if the legislative
provision does not comply with section 9(2), the court can still test it
against section 9(3). In other words, the court uses section 9(2) to test
legislative provisions that implement affirmative action measures. However,
when it finds that such measures do not comply with section 9(2), the court
can test their constitutionality against section 9(3).
The third instance is whenever the different treatment is based either
directly or indirectly on one or more of the grounds listed in section 9(3) or
on a ground that the Court has found to be sufficiently similar to the
grounds listed in section 9(3) to be considered under that section. Also, the
different treatment should not form part of an affirmative action programme
or policy. Here, the court must test the provision against section 9(3). In the
case of listed grounds or grounds sufficiently similar to the grounds listed in
section 9(3), it is not necessary to invoke section 9(1) first. The litigant
complaining of discrimination as opposed to complaining about mere
differentiation may directly invoke section 9(3).52 As noted, this situation
is distinguished from mere differentiation as it relates to different treatment
on the basis of race, sex, gender, sexual orientation or one of the other
problematic distinctions and is referred to as discrimination.
In the sections that follow, we deal with the test to be applied to the three
situations:
• differentiation that amounts to mere differentiation (section 9(1))
• different treatment mandated to advance an affirmative action policy
(section 9(2))
• differentiation that amounts to discrimination but is not part of an
affirmative action policy (section 9(3)).
Although the Constitutional Court stated that it would be neither desirable
nor feasible to separate sections 9(1) and 9(3) into watertight compartments,
it nevertheless focused on section 9(1) as dealing with mere differentiation
while section 9(3) was earmarked as dealing with unfair discrimination.53
Table 12.1 Framework for challenging different treatment
CRITICAL THINKING
Many libertarians will tell you this and I am sure a couple of CEOs
are nodding their head in agreement, thinking to themselves,
“That’s right. It’s not about taxing my income anymore, it’s about
fixing education so that everyone has the opportunity to work as
hard as I have for my money.” But in reality, there still seems to be
something so unsettling about driving from Alexandra township
through to Sandton. There seems to be something so wrong with
the inequality of outcomes in South Africa that must prompt us to
look past inequality of opportunity and focus on the sheer
inequality of outcomes. And there is.
I would argue that there are three primary reasons why South
Africa needs to address inequality of outcomes. First, the extreme
spectrum of wealth in South Africa means the very poor simply do
not have sufficient means to lead a dignified and humane life. We
have a responsibility to provide a minimum standard of life to our
fellow human beings. Second, South Africa is not a society where
inequality of outcomes has arisen as the result of chance.
CRITICAL THINKING
12.3.1 Introduction
As we indicated at the beginning of this chapter, dignity is one of the
founding values of the Constitution and permeates many aspects of the
Constitution.147 As we have seen, the value of dignity is used to interpret
the equality guarantees in section 9 of the Constitution. Dignity also
permeates the interpretation of other rights in the Bill of Rights, including
social and economic rights.148
However, dignity is not only one of the founding values of the
Constitution, it is also an independent, self-standing, enforceable right.
Section 10 of the Constitution states that everyone has inherent dignity and
the right to have their dignity respected and protected. The right therefore
implies an expectation to be protected from conditions or treatment which
offends the subject’s sense of his or her worth in society. In particular,
treatment which is abusive, degrading, humiliating or demeaning is a
violation of this right.149 Moreover, conduct which treats the subject as
non-human or less than human or as an object is intolerable and contrary to
section 10 of the Constitution.150
At the heart of the right to dignity is the assumption that each human
being has incalculable human worth, regardless of circumstances, and
should be treated accordingly. This idea or value is ‘at the inner heartland of
our rights culture’.151 Dignity can be viewed narrowly as a personal right
associated with a person’s identity,152 autonomy and moral agency.153
According to Sachs J, the right to dignity necessarily entails that everyone
has the same moral worth154 as dignity entails an acknowledgement of ‘the
intrinsic worth of human beings’ and the recognition that ‘human beings are
entitled to be treated as worthy of respect and concern’.155 Moreover,
human dignity demands that people be treated as unique individuals rather
than as representatives of a group.
South African courts have developed a comprehensive meaning of the
right to human dignity. In light of the fact that the Constitution permits
reference to foreign law to interpret the right in the Bill of Rights, our
courts have invoked the jurisprudence of foreign jurisdictions to clarify the
meaning of the concept of human dignity. Specifically, former Chief Justice
Chaskalson referred to the case of Law v Canada (Minister of Employment
and Immigration) 156 in his academic paper concerning the meaning of the
right to human dignity.157 In the Law v Canada case, the Canadian
Supreme Court explained human dignity as follows:
Human dignity means that an individual or group feels
self-respect and self-worth. It is concerned with physical
and psychological integrity and empowerment. Human
dignity is harmed by unfair treatment premised upon
personal traits or circumstances which do not relate to
individual needs, capacities, or merits. It is enhanced by
laws which are sensitive to the needs, capacities and
merits of different individuals, taking into account the
context of their differences. Human dignity is harmed
when individuals and groups are marginalised, ignored,
or devalued, and is enhanced when laws recognise the
full place of all individuals and groups within society.158
However, dignity can be viewed as including more than the individualised
personal well-being of the bearers of rights. Understood more broadly,
dignity aims to create the opportunity for every individual to reach his or
her full potential and to experience complete freedom. In terms of this more
encompassing view, ‘dignity, properly understood, secures the space for
self-actualisation’.159 If we view dignity as the conduit to achieve the more
expansive notion of human freedom, it addresses the entire set of factors –
including social and economic factors – that may limit an individual’s
agency. Ackermann J’s dictum in the case of Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others is telling when he
states:
Human dignity cannot be fully valued or respected
unless individuals are able to develop their humanity,
their ‘humanness’ to the full extent of its potential. Each
human being is uniquely talented. Part of the dignity of
every human being is the fact and awareness of this
uniqueness. An individual’s human dignity cannot be
fully respected or valued unless the individual is
permitted to develop his or her unique talents optimally.
Human dignity has little value without freedom; for
without freedom personal development and fulfilment
are not possible. Without freedom, human dignity is little
more than an abstraction. Freedom and dignity are
inseparably linked. To deny people their freedom is to
deny them their dignity.160
In the following sections we discuss the manner in which dignity as a value
differs from dignity as a protected right. We also explore the ways in which
the Constitutional Court has used the right to dignity as a catch-all right to
be invoked in cases where none of the other rights are applicable.
12.4.1 Introduction
One of the most notorious legislative provisions in place during the
apartheid era was section 16 of the Immorality Act.178 This section
criminalised all extramarital sexual relations between a white male and a
non-white female, or vice versa. (Interracial marriages were prohibited by
the Prohibition of Mixed Marriages Act.179) The Immorality Act
authorised police officers to invade people’s private homes in order to catch
couples in the act of breaking this law, thus infringing on their privacy. The
playwright Athol Fugard wrote a play, which opened in 1972, entitled
Statements After an Arrest Under the Immorality Act, to dramatise the
absurdity, the heartache and the pain caused by this provision. A short
summary of the play illustrates the effects of section 16:
Set in apartheid South Africa, where relationships across
the colour bar were a criminal offence, two lovers – a
black man and white woman meet secretly in the library
where the woman works to make love and share their
hopes and fears. An observant neighbour reports them to
the police who secretly photograph them from the
informant’s backyard and eventually break in and arrest
the couple under the then inhuman and universally
pilloried Immorality Act. The play is a compelling and
deeply moving love story in which the physically and
emotionally naked lovers expose not only their bodies
but also their deepest longings for personal and
emotional freedom.180
Given this history, it is no surprise that section 14 of the Constitution
provides that ‘[e]veryone has the right to privacy’, which includes the right
not to have their person or home searched; their property searched; their
possessions seized; or the privacy of their communications infringed.
Section 14 therefore contains a general right to privacy as well as
specifically enumerated infringements of privacy.181 These enumerated
areas of protection form part of the general right to privacy.
SUMMARY
This chapter deals with the right to equality and the right to dignity.
Section 9 of the Constitution guarantees the right to equality. A litigant
invokes section 9 in cases where he or she wishes to attack the
constitutionality of a legislative provision because the litigant believes that
the provision impermissibly differentiates between people or groups of
people. The courts rely on section 9(1), section 9(2) or section 9(3),
depending on the nature of the differentiation complained of, to decide the
case.
The courts rely on section 9(1) where a legislative provision
differentiates between groups of people on grounds other than those listed
in section 9(3) or analogous to those listed in section 9(3). This so-called
mere differentiation includes the many distinctions made in legislation that
are not related to the personal attributes and characteristics of groups of
people. A section 9(1) challenge has to be based on the question of whether
the differentiation (mere differentiation) was rational or arbitrary.
The courts rely on section 9(2) where the legislative provision being
challenged differentiates between groups of people on one of the grounds
listed in section 9(3) or on grounds analogous to those listed in this section,
for example race, sex or sexual orientation. However, in this case, the
legislation differentiates between groups of people with the aim of
correcting the effects of past unfair discrimination (affirmative action).
When testing an affirmative action provision against section 9(2), the court
asks:
• whether the affirmative action scheme devised by the legislature targets a
group who was unfairly discriminated against in the past
• whether the scheme is designed to achieve its redress goal, in other
words, whether it is reasonably capable of doing so
• whether the scheme will achieve the long-term goal of equality, which
would not be the case if the scheme gratuitously and flagrantly imposes
disproportionate burdens on the excluded group.
Section 9(3) deals with unfair discrimination. This is discrimination on one
or more of the grounds listed in that section or analogous to those grounds,
but only when the differentiation was not done with the aim of
implementing an affirmative action policy. When deciding whether
discrimination is fair or unfair for purposes of section 9(3), the court
follows a contextual approach. This means that the court considers:
• whether the complainant belongs to a group previously discriminated
against
• whether the discrimination pursues an important purpose
• how severe the impact of the discrimination is on the group.
The courts must deal with allegations of discrimination by private
individuals, public officials or institutions, in other words, allegations of
non-statutory forms of discrimination, in terms of the Promotion of Equality
and Prevention of Unfair Discrimination Act (PEPUDA). The PEPUDA
was passed in accordance with section 9(4) of the Constitution to ensure the
horizontal application of the prohibition on discrimination. When applying
the provisions of the PEPUDA, the concept of reasonable accommodation
is important but not always decisive. The PEPUDA requires a court to
consider many of the same considerations relevant to a section 9(2) or a
section 9(3) enquiry, as well as considerations relevant to a limitations
clause enquiry in terms of section 36, when it decides whether the
discrimination is fair or unfair.
Section 10 of the Constitution protects the right to dignity. The right to
dignity must be distinguished from the value of dignity that permeates the
Constitution and underlies the interpretation of many, if not all, the other
rights in the Bill of Rights. The courts usually rely on the right to dignity if
the dignity interest is not adequately protected by any of the other rights in
the Bill of Rights.
Section 14 of the Constitution protects the right to privacy. This right is
viewed as having a core which is more rigorously protected than its
penumbra. While both individuals and juristic persons can rely on this right,
the level of protection will differ depending on the nature of the situation.
Courts ask whether privacy protection could reasonably be expected, given
the nature of the relationship that is being protected. In this schema, it goes
without saying that consensual intimate sexual relationships go to the heart
of the right to privacy.
1 See S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 329; Teddy Bear Clinic for Abused
Children and Another v Minister of Justice and Constitutional Development and Another (CCT
12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013) para 52.
2 See Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 250.
3 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 35.
4 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others
(CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (CC) (9 October 1998)
para 120.
5 Dawood para 35.
6 Dawood para 35.
7 For an admirable book-length attempt to do so, see Ackermann, L (2012) Human Dignity:
Lodestar for Equality in South Africa.
8 Teddy Bear Clinic para 52. See also Khumalo and Others v Holomisa (CCT53/01) [2002]
ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 27. See also Cameron, E
(2012) Dignity and disgrace: Moral citizenship and constitutional protection, lecture delivered
at the University of Oxford’s Understanding Human Dignity Conference (26–29 June 2012) (as
yet unpublished) at 10.
9 See Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1997 (12)
BCLR 1675; 1998 (2) SA 38 (2 December 1997) para 23.
10 Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752
(15 May 1996) para 40.
11 Langa, P (2006) Transformative constitutionalism Stellenbosch Law Review 17(3):351–60 at
352–3. See also Albertyn, C and Goldblatt, B ‘Equality’ in Woolman, S and Bishop, M (eds)
(2013) Constitutional Law of South Africa 2nd ed rev service 5 35.5.
12 Currie and De Waal (2013) 213.
13 See De Vos, P (2000) Equality for all? A critical analysis of the equality jurisprudence of the
Constitutional Court Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(1):62–75 at 65;
Albertyn and Goldblatt (2013) 35.6.
14 De Vos (2000) 65.
15 Albertyn and Goldblatt (2013) 35.6. See also Albertyn, C and Goldblatt, B (1998) Facing the
challenge of transformation: Difficulties in the development of an indigenous jurisprudence of
equality South African Journal on Human Rights 14(2):248–76 at 152–3.
16 National Coalition for Gay and Lesbian Equality v Minister of Justice para 60.
17 (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC); [2004] 12
BLLR 1181 (CC) (29 July 2004) para 27. See also Brink para 40; President of the Republic of
South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4)
SA 1 (18 April 1997) para 41; Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC
5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997) para 31; City Council of Pretoria v
Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998)
para 46; Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1;
2000 (11) BCLR 1235; [2000] 12 BLLR 1365 (CC) (28 September 2000).
18 Brink para 40. See also Walker para 26 where Langa DP stated that the assessment of
discrimination cannot be undertaken in a vacuum, ‘but should be based both on the wording of
the section and in the constitutional and historical context of the developments in South
Africa’.
19 Brink para 41.
20 Brink para 41.
21 See, for example, Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1997 (11)
BCLR 1489; 1998 (1) SA 300 (7 October 1997) para 51(b).
22 See De Vos (2000) 66.
23 Botha, H (2009) Equality, plurality and structural power South African Journal on Human
Rights 25(1):1–37 at 7.
24 For a real-life example, see Kassiem, A (2006, 26 June) Guest houses can be for gay men only
available at http://www.iol.co.za/news/south-africa/guest-houses-can-be-for-gay-men-only-
1.283071.
25 Act 4 of 2000.
26 Prinsloo para 23.
27 Prinsloo para 24.
28 Brink; Prinsloo; Hugo; Harksen; Larbi-Odam and Others v Member of the Eexecutive Council
for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12)
BCLR 1655; 1998 (1) SA 745 (26 November 1997); Walker; National Coalition for Gay and
Lesbian Equality v Minister of Justice; Hoffmann; Moseneke and Others v Master of the High
Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000);
Satchwell v President of Republic of South Africa and Another (CCT45/01) [2002] ZACC 18;
2002 (6) SA 1; 2002 (9) BCLR 986 (25 July 2002); J and Another v Director General,
Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463;
2003 (5) SA 621 (CC) (28 March 2003); Du Toit and Another v Minister of Welfare and
Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006;
2003 (2) SA 198 (CC) (10 September 2002); Bhe and Others v Khayelitsha Magistrate and
Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
(15 October 2004); Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5)
BCLR 446 (CC) (21 February 2005); Minister of Home Affairs and Another v Fourie and
Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC)
(1 December 2005); Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA
97 (CC); 2007 (3) BCLR 249 (CC) (23 November 2006). See also Pretorius, JL (2010)
Fairness in transformation: A critique of the Constitutional Court’s affirmative action
jurisprudence South African Journal on Human Rights 26(3):536–70.
29 See generally Fagan, A (1998) Dignity and unfair discrimination: A value misplaced and a
right misunderstood South African Journal on Human Rights 14(2):220–47 at 220; and Westen,
P (1982) The empty idea of equality Harvard Law Review 95(3):537–96 at 537.
30 National Coalition for Gay and Lesbian Equality v Minister of Justice para 122.
31 De Vos (2000) 64.
32 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
33 Hugo para 41.
34 Hugo para 41. See also Albertyn and Goldblatt (1998) 257.
35 See Woolman, S ‘Dignity’ in Woolman and Bishop (2013) 36.3.
36 Hugo para 41; Prinsloo paras 31–3; Harksen para 50.
37 (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997).
38 Prinsloo para 33. See also Harksen para 50: ‘Whether or not there is discrimination will
depend upon whether, objectively, the ground is based on attributes and characteristics which
have the potential to impair the fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner.’
39 Malherbe, R (2007) Some thoughts on unity, diversity and human dignity in the new South
Africa Tydskrif vir die Suid Afrikaanse Reg/Journal of South African Law 70(1):127–33 at 132.
40 Albertyn and Goldblatt (1998) 256–60.
41 Botha (2009) 8.
42 Botha (2009) 9.
43 Albertyn and Goldblatt (2013) 35.10. See, for example, Government of the Republic of South
Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46;
2000 (11) BCLR 1169 (4 October 2000) para 23.
44 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC)
(4 March 2004).
45 Khosa para 74.
46 Van Heerden para 25.
47 Van Heerden para 31.
48 South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007]
ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007) 28
ILJ 1909 (CC) (30 May 2007) paras 51–2; MEC for Education: Kwazulu-Natal and Others v
Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
(5 October 2007) paras 39–40; Walele v City of Cape Town and Others (CCT 64/07) [2008]
ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008) paras 29–30;
Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09)
[2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009) paras 47–9. See also Van der
Walt, AJ (2008) Normative pluralism and anarchy: Reflections on the 2007 term Constitutional
Court Review 1:77–128 at 100–03.
49 Prinsloo para 25.
50 Prinsloo paras 23–4.
51 Van Heerden para 33.
52 National Coalition for Gay and Lesbian Equality v Minister of Justice para 18.
53 Prinsloo para 22.
54 Act 55 of 1998.
55 Prinsloo para 22, quoting, in part, Didcott in S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1)
BCLR 141; 1996 (1) SA 1207 (8 December 1995) para 18. See also Walker para 27.
56 Prinsloo para 25 and Walker para 27.
57 Prinsloo para 25.
58 Prinsloo para 25.
59 See Mendes, E ‘The crucible of the Charter’ in Beaudoin, GA and Mendes, E (eds) (1996) The
Canadian Charter of Rights and Freedoms 3.20; Tribe, LH (1988) American Constitutional
Law 2nd ed 1442–3.
60 Prinsloo para 35.
61 Harksen para 43.
62 Prinsloo paras 24–6.
63 Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA
230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006) para 33. See also Jooste v Score
Supermarket Trading (Pty) Ltd (Minister of Labour intervening) (CCT15/98) [1998] ZACC 18;
1999 (2) SA 1; 1999 (2) BCLR 139 (27 November 1998).
64 In Jooste para 16 the Constitutional Court explained this as follows:
It is clear that the only purpose of rationality review is an inquiry into whether the
differentiation is arbitrary or irrational, or manifests naked preference and it is
irrelevant to this inquiry whether the scheme chosen by the legislature could be
improved in one respect or another. Whether an employee ought to have retained
the common law right to claim damages, either over and above or as an alternative
to the advantages conferred by the Compensation Act, represents a highly
debatable, controversial and complex matter of policy. It involves a policy choice
which the legislature and not a court must make. The contention represents an
invitation to this Court to make a policy choice under the guise of rationality
review; an invitation which is firmly declined.
65 (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013).
66 Act 44 of 1958.
67 Ngewu para 17.
68 Brink para 42. See generally Walker.
69 Van Heerden para 27.
70 Van Heerden para 25.
71 See the debate on the nature of these measures in Currie and De Waal (2013) 241–2; Gutto, S
(2001) Equality and Non-Discrimination in South Africa: The Political Economy of Law and
Law Making 204–5. See also Du Plessis, L and Corder, H (1994) Understanding South Africa’s
Transitional Bill of Rights 144–5; Pretorius, JL (2001) Constitutional standards for affirmative
action in South Africa: A comparative overview Heidelberg Journal of International Law
61(8):403–57 at 403; Van Reenen, TP (1997) Equality, discrimination and affirmative action:
An analysis of section 9 of the Constitution of the Republic of South Africa SA
Publiekreg/Public Law 12(1):151–65 at 151; Dupper, O (2004) In defence of affirmative action
South African Law Journal 121(1):187–215; Dupper, O, MacEwan, M and Louw, A (2006)
Employment equity in the tertiary sector in the Western Cape International Journal of
Discrimination and the Law 8(3):191–212; De Vos, P (2012) The past is unpredictable: Race,
redress and remembrance in the South African Constitution South African Law Journal
129(1):73–103.
72 Van Heerden para 73.
73 Van Heerden para 75.
74 Van Heerden para 24.
75 Van Heerden para 31.
76 Van Heerden para 33.
77 Van Heerden paras 34–5.
78 Fargher, M (2013, 5 October) White-washed equality Politicsweb available at
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?
oid=412294&sn=Detail&pid=71616.
79 Van Heerden para 39.
80 Van Heerden para 40.
81 Albertyn and Goldblatt (2013) 35.35.
82 Van Heerden para 87.
83 Van Heerden para 155.
84 De Vos (2012) 77–8.
85 Van Heerden para 41.
86 Van Heerden para 41. See also Prinsloo paras 24–6 and 36; Jooste para 16.
87 Van Heerden para 43.
88 Van Heerden para 41.
89 Van Heerden para 152.
90 Van Heerden para 44.
91 This view is bolstered by the concurrent decisions of Sachs J in the Van Heerden judgment
(para 146), in which he emphasises the substantive nature of equality and affirms that s 9(2)
must be applied within this framework.
92 De Vos (2012) 93–4.
93 Pretorius (2010) 564.
94 Pretorius (2010) 562.
95 Pretorius (2010) 562–3.
96 In National Coalition for Gay and Lesbian Equality v Minister of Justice para 18, the Court
stressed that the two enquiries need not follow one from the other. The rational connection
enquiry would be clearly unnecessary in a case in which a court holds that the discrimination is
unfair and unjustifiable.
97 (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997)
para 44.
98 Harksen para 44. This distinction and the concomitant two-stage analysis were not employed
in the cases preceding Harksen. In Prinsloo, for example, the Court combined the two stages
or, at least, did not identify the two stages (paras 30–1). See Currie and De Waal (2013) 223.
99 Prinsloo para 29.
100 Harksen para 46.
101 Harksen para 50(b).
102 See Albertyn and Goldblatt (2013) 35.43.
103 Harksen para 47.
104 Walker para 43.
105 Walker para 43. Albertyn and Goldblatt (1998) 268 criticise this view and argue that it
‘denudes discrimination of its prejudicial connotations by not requiring that such prejudice be
demonstrated’. They find support for this view from the dissenting opinion of Sachs J in
Walker paras 105–6 who argued that there can only be a finding of discrimination (the first
stage of the analysis) if the claimant can prove that he or she had been prejudiced – that there
had been ‘actual negative impact’ associated with a specified ground – by the differentiation
which was based on one of the specified grounds. He concludes:
The core of my argument at this stage is that the complainant has not made out a
case of having suffered prima facie discrimination at all. In order to invoke the
presumption of unfairness contained in s 8(4) [now s 9(5)] some element of actual or
potential prejudice must be immanent in the differentiation, otherwise there is no
“discrimination” to be evaluated, and the need to establish fairness or unfairness
has no subject matter.
This view was, however, explicitly rejected in the same case by the majority judgment of Langa DP
as contrary to the previous equality decisions of the Court (para 33).
106 Harksen para 46.
107 Harksen para 46.
108 Harksen para 47.
109 (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365
(CC) (28 September 2000).
110 Hoffmann para 28.
111 Larbi-Odam para 19.
112 Williams, RB (2012, 18 August) Wired for success Psychology Today available at
http://www.psychologytoday.com/blog/wired-success/201208/im-successful-because-im-
beautiful-how-we-discriminate-in-favor-attractive.
113 DiSalvo, D (2013, 17 July) Study: Unattractive people are targets for cruelty at work Forbes
available at http://www.forbes.com/sites/daviddisalvo/2013/07/17/study-unattractive-people-
are-targets-for-cruelty-at-work/.
114 See Fourie.
115 (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998).
116 Walker para 31.
117 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
118 Jordan para 10.
119 Jordan para 60.
120 See Kassiem, A (2004, 11 February) Gay nightclub admits to discrimination Independent
Online available at http://www.iol.co.za/news/south-africa/gay-nightclub-admits-to-racial-
discrimination-1.122764.
121 Harksen para 44.
122 Harksen para 49.
123 Such an interpretation would mean that human dignity is employed by the court in both step 1
and step 2 in cases where the differentiation is based on one of the unspecified grounds. This
would make the process somewhat strange and at least one of the two steps completely
superfluous.
124 Harksen para 49: ‘In the final analysis it is the impact of the discrimination on the complainant
that is the determining factor regarding the unfairness of the discrimination.’
125 Harksen para 50.
126 Brink para 27. See also Albertyn and Goldblatt (2013) 35.76.
127 Khosa para 76.
128 See Hoffmann.
129 Khosa para 71.
130 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) para 54.
131 See National Coalition for Gay and Lesbian Equality v Minister of Justice para 22 where
Ackermann J further stressed that the harm of discrimination is structural in nature.
132 Act 68 of 1995.
133 Act 4 of 2000.
134 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT
59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30 September
2005) paras 96 (Chaskalson CJ) and 434–7 (Ngcobo J).
135 Pillay para 40.
136 Pillay para 70.
137 S 13 of the PEPUDA.
138 Pillay para 69.
139 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October
2007).
140 Pillay para 73.
141 Pillay para 73.
142 Pillay para 75.
143 Pillay para 76.
144 Pillay para 77.
145 Pillay para 78.
146 Pillay para 74, quoting from Canadian Supreme Court judgment Eaton v Brant County Board
of Education [1997] 1 SCR 241 para 67.
147 S 1(a). See also s 36. See also Teddy Bear Clinic para 52.
148 Grootboom para 23.
149 In the case of S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7)
BCLR 861 (CC) (9 June 1995), which concerned corporal punishment, the Court held at
para 45 that ‘the fact that the adult is stripped naked [for purposes of the whipping] merely
accentuates the degradation and humiliation. The whipping of both is, in itself, a severe affront
to the dignity as a human being’.
150 Haysom, N ‘Dignity’ in Cheadle, H, Davis, D and Haysom, N (eds) (2002) South African
Constitutional Law: The Bill of Rights 131. For further reading on dignity generally, see Davis,
DM (1999) Equality: The majesty of legoland jurisprudence South African Law Journal
116:398–414 at 414; Cowen, S (2001) Can dignity guide South Africa’s equality
jurisprudence? South African Journal on Human Rights 17(1):34–58 at 34; Fagan (1998) 220.
151 Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC
20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007) para 98.
152 See generally the case of Pillay.
153 Woolman, S ‘The widening gyre of dignity’ in Woolman, S and Bishop M (eds) (2008)
Constitutional Conversations 197.
154 Walker para 113.
155 Makwanyane para 28 as per O’Regan J.
156 1 SCR 497 (1999).
157 See Chaskalson, A (2000) The Third Bram Fischer Lecture: Human dignity as a foundational
value of our Constitutional order South African Journal on Human Rights 16(2):193–205.
158 Law v Canada (Minister of Employment and Immigration) 1 SCR 497 (1999) para 53.
159 Woolman (2008) 202.
160 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)
para 49.
161 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000).
162 Dawood para 35.
163 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998).
164 (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December
2005) para 71.
165 (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000)
para 34.
166 (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) para 28.
167 Liebenberg, S (2005) The value of human dignity in interpreting socio-economic rights South
African Journal on Human Rights 21(1):1–31.
168 Liebenberg (2005) 5.
169 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008)
para 10.
170 Dawood para 35.
171 Dawood para 35.
172 Dawood para 36.
173 Dawood para 37.
174 (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013).
175 Act 32 of 2007.
176 S 56(2)(b) of the Sexual Offences and Related Matters Amendment Act.
177 Teddy Bear Clinic para 55.
178 Act 23 of 1957, later renamed the Sexual Offences Act.
179 Act 55 of 1949.
180 See http://www.capetownmagazine.com/events/statements-after-an-arrest-under-the-
immorality-act/11_37_54253.
181 Currie and De Waal (2013) 294.
182 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
183 Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR
449; 1996 (2) SA 751 (27 March 1996) para 75.
184 Bernstein para 75.
185 This is why participants in a reality television show such as Big Brother – in which contestants
are filmed 24 hours a day in a secluded house – would not be able to claim that their right to
privacy had been infringed.
186 (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 67.
187 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 18.
188 Currie and De Waal (2013) 30.
189 Jordan para 80.
190 Jordan para 29.
191 (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000).
192 Hyundai Motor Distributors para 18.
193 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
194 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
195 Cameron, E (1993) Sexual orientation and the Constitution: A test case for human rights South
African Journal on Human Rights 110(3):450–72 at 464.
196 National Coalition for Gay and Lesbian Equality v Minister of Justice para 30.
197 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
198 Teddy Bear Clinic para 60.
199 Teddy Bear Clinic para 60.
Diversity rights
13.1 Introduction
13.2 Freedom of association
13.2.1 Introduction
13.2.2 The scope and content of the right to freedom of
association: general principles
13.2.3 Societal interests overriding association rights
13.2.3.1 Equality
13.2.3.2 Democracy
13.2.4 Balancing rights
13.3 Freedom of religion, belief and opinion
13.3.1 Introduction
13.3.2 The scope and content of section 15(1) of the
Constitution
13.3.3 The reasonable accommodation of religious beliefs and
practices
13.3.4 The right not to believe in any God
13.3.5 Conducting religious observances at state institutions:
section 15(2) of the Constitution
13.3.6 Legislation recognising religious and traditional
marriages: section 15(3)(a)(i) of the Constitution
13.4 The rights of cultural and religious communities
13.4.1 The individual nature of these rights and how other
rights both qualify and enhance them
13.4.2 The international protection of cultural liberties
13.4.3 An analysis of the scope and content of sections 30 and
31 of the Constitution
13.5 Language rights
13.5.1 Introduction
13.5.2 The right not to be unfairly discriminated against on the
basis of language
13.5.3 The right to receive education in the official language
of choice
13.5.4 Languages: section 6 of the Constitution
13.5.5 The Pan South African Language Board
Summary
13.1 Introduction
South Africa is a heterogeneous society in which individuals with diverse
religious affiliations, cultural beliefs and practices, and languages must
coexist. Given the heterogeneous nature of South Africa, it is important for
the law to respect and protect the beliefs, practices and languages of the
diverse groups that make up South Africa’s population. This is because in a
society in which diversity is not respected or protected, the law will
normally reflect the beliefs, practices and languages of the majority or of
the culturally or economically dominant group, and will marginalise the
beliefs, practices and languages of discrete groups. When the beliefs,
practices and languages of discrete groups are marginalised, this not only
diminishes the constitutional goal of establishing a diverse society, but may
also cause harm to members of a marginalised group. This is especially so
in those cases where the group in question is economically or politically
vulnerable.
This state of affairs could arise, for example, where the law recognises
and endorses the views of some sections of society (inspired by their
particular religious beliefs) that homosexuality is wrong and that gay men
and lesbians do not deserve to be treated with equal concern and respect.
This would be extremely harmful to gay men and lesbians who would be
marginalised and discriminated against and who may even face threats to
their physical well-being. Similarly, if the law recognises and endorses the
views of some sections of society that certain cultural practices, such as
male circumcision, were harmful to all boys, the concomitant ban on male
circumcision would limit the rights of those sections of society whose
cultural beliefs demand that all young men should undergo circumcision.
Again, if the law endorses the view that English should be the only medium
of communication in South Africa, this would marginalise many South
Africans whose mother tongue is not English.
While it is important to respect the beliefs, practices and languages of
diverse groups, it is also important to recognise that there is an inevitable
tension between doing so and preventing those beliefs, practices and
languages from marginalising, excluding and oppressing other people in
society. This is so because some individual beliefs, practices and languages
are potentially harmful to other people. Also, they can exclude other people
from certain benefits or from access to physical spaces or certain
opportunities. To protect individuals from such exclusion, the Constitution
must balance the interests of people who hold or practise certain beliefs or
who wish to associate with members of the group they feel closest to with
the interests of others in society. Other people may be excluded by those
beliefs and practices and may, consequently, be harmed by those beliefs and
practices because they are denied opportunities or benefits. This requires
limiting the associational rights of diverse cultural, religious and other
groups in specific situations.
Striking the correct balance is not always easy. Sometimes the interests
of some groups have to yield to the interests of other groups. It is
impossible for the law to accommodate all the diverse beliefs, practices and
attitudes of all people living in South Africa in an absolute manner while
also protecting individuals against discrimination, marginalisation and
exclusion.
In this chapter we discuss some of the rights where the problem of
accommodating diversity arises most acutely. These rights include the right
to freedom of association, freedom of religion, the rights of cultural and
religious communities, and language rights. It is impossible to do so
without keeping in mind the scope and content of the right to equality,
human dignity and privacy discussed in chapter 12 of this book. This is
because the cultural and religious beliefs and practices of some groups are
often in direct conflict with the demands not to discriminate unfairly against
others and to respect the human dignity of all. Although we discuss the
scope and content of the various rights in detail, we do so against the
background of the broader question regarding the manner in which the law
can respect and protect cultural and religious diversity without negating the
rights of other groups who do not share the same beliefs and who do not
engage in the same practices.
13.2.1 Introduction
Section 18 of the Constitution provides that ‘[e]veryone has the right to
freedom of association’. Freedom of association is often said to be a
foundational right for any flourishing democracy. A right to associate freely
with others ‘makes participatory politics meaningful and genuinely
representative politics possible’.1 This right also allows individuals to make
choices about how they want to arrange their lives and about their identities
as people in relationships with others in a given society, thus advancing
respect for and protecting diversity.2 The right to freedom of association
guarantees a degree of autonomy that allows individuals to make both
overtly political and more intimate choices about who to associate with.
These are choices that may affect their lives and their identities by giving
them expression in community with others.
At the heart of the right to freedom of association lies the recognition of
the communal nature of people 3 and the need for people to exercise some
of their rights as individuals ‘in association with others of like
disposition’.4 It is based on an understanding that people live in
communities with others. Also, people develop their full potential only by
relating to other people either individually or collectively. In addition,
people can often only engage in meaningful political action in association
with others. In other words, the right to freedom of association ‘protects the
rights of collective self-determination’.5 In MEC for Education: Kwazulu-
Natal and Others v Pillay, the Constitutional Court linked this notion with
the concept of ubuntu, stating:
The notion that ‘we are not islands unto ourselves’ is
central to the understanding of the individual in African
thought. It is often expressed in the phrase umuntu
ngumuntu ngabantu which emphasises ‘communality and
the inter-dependence of the members of a community’
and that every individual is an extension of others.
According to Gyekye, ‘an individual human person
cannot develop and achieve the fullness of his/her
potential without the concrete act of relating to other
individual persons’. This thinking emphasises the
importance of community to individual identity and
hence to human dignity. Dignity and identity are
inseparably linked as one’s sense of self-worth is defined
by one’s identity. Cultural identity is one of the most
important parts of a person’s identity precisely because
it flows from belonging to a community and not from
personal choice or achievement. And belonging involves
more than simple association; it includes participation
and expression of the community’s practices and
traditions.6
Associational rights are often instrumental in nature as they enable the
individuals who form the associations to protect better and to assert more
robustly other constitutional rights.7 No wonder, then, that De Toqueville is
quoted as saying that ‘no legislator can attack [the right to freedom of
association] without impairing the very foundations of society’.8 What De
Toqueville suggests is that the right to freedom of association supports and
underpins many other important rights. These include the right to make
political choices, the right to form a political party, the right to participate in
the activities of that party by recruiting, organising and campaigning on its
behalf, and the right to campaign for a political party or cause. These rights
are described as political rights in the Constitution and are the very essence
of a vibrant constitutional democracy.
Even though the right to freedom of association has a communal aspect,
it is important to note that it is primarily a right that belongs to the
individual rather than the association that has been established to give better
effect to the protection of the rights of the individual.9 In other words,
associational rights do not protect groups as groups: these rights remain
individual rights that protect the right of individuals to associate or not to
associate with others or groups of others. As Summers points out:
Although commonly asserted by the organisation,
freedom of association is not simply a collective right
vested in the organisation for its benefit. Freedom of
Association is an individual right vested in the individual
to enable him [sic] to enlarge his [sic] personal freedom.
Its function is not merely to grant power to groups, but
to enrich the individual’s participation in the democratic
process by his [sic] acting through those groups.10
The Constitutional Court affirmed this point in Pillay where O’Regan J
stated that associative rights such as the right to belong to cultural, religious
and linguistic communities are exercised by the individual person.11 They
are not rights that attach to the group. This does not mean that the right is
not related to the need for individuals to belong to organised or informal
organisations or groupings. To advance their political, social, cultural,
religious, recreational, charitable, educational and other interests or
objectives, individuals band together in organisations. This is because
individual interests are often better served if they are advanced by
associations of like-minded persons. However, it is not the right of the
organisation that is protected. Nor is the right of the group who belongs to
the organisation protected. Rather, the right of the individual to belong to
that organisation is protected. This is so because the right recognises the
autonomy of the individual to advance his or her interests in concert with
others in this manner.
As suggested above, the right to freedom of association is closely related
to and sometimes overlaps with other rights such as the right to human
dignity and the right to privacy.12 In the previous chapter we noted that the
Constitutional Court has recognised that the right to human dignity contains
an associational element at least as far as intimate relationships, such as
marriage, are concerned. Thus, in Dawood and Another v Minister of Home
Affairs and Others; Shalabi and Another v Minister of Home Affairs and
Others; Thomas and Another v Minister of Home Affairs and Others, the
Constitutional Court held that a ‘decision to enter into a marriage
relationship and to sustain such a relationship is a matter of defining
significance for many if not most people’ and to limit this right would
clearly constitute an infringement of the right to dignity.13
However, because of problems related to the accommodation of diversity
raised in the introduction to this chapter, it must be noted that difficult
questions arise about the scope and content of the right to freedom of
association. This is because the need to respect this right sometimes clashes
directly with the need to respect other important rights such as the right to
human dignity, the right not to be unfairly discriminated against and the
right to freedom of movement. Associational rights can be used to exclude
and marginalise others. Many seemingly private institutions or bodies are
powerful because they provide access to goods, services, benefits and
opportunities. Their actions can therefore have a detrimental effect on the
well-being of those individuals whom they exclude, marginalise or
discriminate against.
The more powerful the body is and the more serious the potential
harmful effect of that body’s actions on others is, the less likely it is that the
members of that body will be allowed to exercise their right to freedom of
association in an untrammelled manner. This is because seemingly private
bodies created to ensure that individuals can exercise their right of
association in conjunction with others of like mind may well exclude and
marginalise certain people. The actions of these bodies may send a signal
that the people whom they exclude or marginalise are less worthy of
constitutional concern and respect. Their actions can also deny certain
individuals access to benefits and opportunities in a manner that is
discriminatory.
The problem is particularly acute where so-called private bodies provide
a service to the public. The owner of a holiday resort catering for white
Afrikaans, Christian holiday makers, for example, may wish to restrict
access to that holiday resort to white, heterosexual visitors. Given that the
holiday resort provides a benefit and a service to the public, those people
who are excluded from enjoying the benefit are harmed as they will never
be able to enjoy the same privileges as the people accommodated by the
holiday resort. The question arises whether the holiday resort is entitled to
invoke the right to freedom of association to justify its discrimination
against black South Africans or against gay and lesbian South Africans.
When a holiday resort excludes a person because of his or her race or
sexual orientation, this can send a powerful signal to that person and the
group to whom he or she belongs that he or she is not equally valued in
society and cannot access the same benefits and services provided by the
ostensibly ‘private’ body that others can access.
In the following sections we explore the scope and content of the right to
freedom of association with reference to this dichotomy. As we will see, the
conundrum the courts often face is to balance the rights of individuals in the
association asserting their autonomy with those of others seeking access to
the association.
13.2.3.1 Equality
Certain associations may be required to ‘open themselves up to a wider
potential membership because they control access to important social
goods’.27 One way in which this is mandated in the South African context
is by the Promotion of Equality and Prevention of Unfair Discrimination
Act (PEPUDA).28 The PEPUDA asserts the primary importance of
equality concerns and presents a challenge to the right to freedom of
association. This is especially so because the PEPUDA seems to challenge
control over membership policies and the internal affairs of every private
organisation and institution in the country. As membership policies and the
organisation of internal affairs are often critical to an association’s identity,
the PEPUDA could, in effect, force a change in these policies. The
PEPUDA therefore represents a severe limitation on the general right to
freedom of association.29
Section 6 of the PEPUDA states that ‘[n]either the State nor any person
may unfairly discriminate against any person’. As we have seen in
chapter 12, when a private individual or organisation discriminates against
an individual, say by excluding that person from membership of the
organisation on the basis of his or her race, gender or sexual orientation, the
onus is on the party who discriminated to prove that the discrimination was
not unfair but rather that it was fair. Sections 14(2) and (3) of the PEPUDA
set out the factors a court must take into account when determining whether
the respondent has proven the discrimination to be fair. These factors are:
• the context
• whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria intrinsic
to the activity concerned
• whether the discrimination impairs or is likely to impair human dignity
• the impact or likely impact of the discrimination on the complainant
• the position of the complainant in society and whether he or she suffers
from patterns of disadvantage or belongs to a group that suffers from
such patterns of disadvantage
• the nature and extent of the discrimination
• whether the discrimination is systemic in nature
• whether the discrimination has a legitimate purpose
• whether and to what extent the discrimination achieves its purpose
• whether there are less restrictive and less disadvantageous means to
achieve the purpose
• whether and to what extent the respondent has taken such steps as are
reasonable in the circumstances to address the disadvantage which arises
from or is related to one or more of the prohibited grounds or to
accommodate diversity.
A private organisation whose policies regarding admission discriminate
against an individual based on his or her sexual orientation, for example,
would have to argue that the exclusion is ‘intrinsic to the activity’ of that
organisation and that it is not based merely on prejudice or irrelevant
attitudes that fuel discrimination.30 The organisation may also argue that
the discrimination has a legitimate purpose and, as such, can be justified. In
each case, a court has to determine whether the discrimination is intrinsic to
the nature of the organisation and its purpose in the manner discussed in
chapter 12. In each case the association claiming a right to association in
potential conflict with the PEPUDA will have the burden of showing that
its associational interests trump the interests to equality. This will not
always be easy to do.
13.2.3.2 Democracy
The state may also interfere in the right to freedom of association in the
furtherance of the goals of democracy. This may require organisations in
certain contexts to structure their internal affairs in a more democratic and
egalitarian fashion.31 In each case the question would be to what extent the
state’s interest in the integrity of a democratic process and in the
maintenance and protection of a democratic society justifies the limitation
on the association’s right to order its affairs as it wishes and to pursue the
goals it was set up to pursue. The freedom of political parties to arrange
their internal affairs as they wish and to pursue the ends they were set up to
pursue will potentially be acutely affected by the need to safeguard
democracy. This will be less evident if we start from the premise that
political parties and other associations are largely private entities created to
pursue private ends.32 However, if our premise is that political parties and
other associations are essential for a functioning representative democracy,
a more onerous burden will fall on political parties to be structured along
democratic lines and not to pursue undemocratic ends.
In Germany, for example, the German Constitutional Court banned the
Socialist Reich Party (SRP) in 1952 and the Communist Party of Germany
(KPD) in 1956. According to article 21, paragraph 2 of the German Basic
Law, parties which, by reason of their aims or the behaviour of their
members, seek to impair or destroy the free democratic order or to endanger
the existence of the Federal Republic of Germany are unconstitutional.33
Thus, legislation may attempt to force political organisations to structure
themselves in a more democratic and egalitarian way.
In the United States, in Buckley v Valeo,34 the US Supreme Court
confirmed the constitutionality of laws requiring compulsory disclosure of
the source of campaign contributions over $10 and in respect of political
contributions of more than $100 per annum. The applicants in this case
argued that the laws violated the associational rights of minor parties and
small contributors. The Court held that associational rights were infringed.
However, the countervailing state interests were sufficiently important to
outweigh the limitation on the right to freedom of association.35 The
societal interests identified in this case were the need to help the electorate
evaluate the candidates standing for office by disclosing the identity of their
supporters, the need to avoid corruption and the appearance of corruption,
and the need to gather data required to enforce the contribution limits set
down in other laws.36
In Institute for Democracy in South Africa and Others v African National
Congress and Others,37 the High Court adopted a different approach. In
this case, the Institute for Democracy in South Africa (IDASA) brought an
application in terms of the Promotion of Access to Information Act (PAIA)
38 against all the major political parties for access to their donation records
regarding the date of donation, name of the donor, amount or value of the
donation and the conditions, if any, on which the donation was made or
received. In the main, the African National Congress (ANC) resisted the
application on the basis that there should be comprehensive legislation on
this issue as opposed to having to disclose information on an ad hoc basis.
The Court was of the opinion that the political parties for the purposes of
this application were to be regarded as private bodies. In terms of the PAIA,
an applicant had to demonstrate that they required the information from the
private body for the exercise or protection of any rights.39 One of the
arguments made by the applicants was that they required the records to
assist citizens to make more accurate political choices and to choose
between the various parties. Disclosure of financial benefactors would place
citizens in a better position to make these decisions. The Court was of the
view that this did not adequately demonstrate ‘how the donation records
would assist them in exercising or protecting any of the rights on which
they rely or why, in the absence of these donation records, they are unable
to exercise those rights’.40 It went on to hold:
On the face of it, section 19(1) prevents any restrictions
being imposed on a citizen’s right of making political
choices, such as forming a political party, participating
in the activities of and recruiting members for a party,
and campaigning for a political cause. Similarly, the
right to ‘free, fair and regular elections’ enshrined in
section 19(2) does not impose a duty on political parties
to disclose funding sources, nor does it afford citizens a
right to gain access to such records. The emphasis in
section 19(2) lies upon the elections and the nature of the
electoral process and not so much upon the persons or
parties participating in those elections.41
The application was unsuccessful. This interpretation of section 19 is
narrower than that required to develop a constitutional democracy. The right
to vote must include the right to make properly informed political choices.
Knowing the identity of the financial benefactors of political parties would
enable the electorate to know potential sources of influence in that party
and hence whether it is deserving of their vote. This information would
enable them to exercise their right in a more effective manner. Given these
arguments, the Court ought to have found that the information was required
for the exercise or protection of rights and then determined whether the
parties could refuse disclosure in terms of the exceptions listed in the PAIA.
In Ramakatsa and Others v Magashule and Others, the Constitutional
Court found that the Constitution requires political parties to act lawfully.42
In the context of section 19 of the Constitution, which guarantees for every
citizen the right to participate freely in the activities of a political party, the
Court found that there was a duty on every political party ‘to act lawfully
and in accordance with its own constitution’.43 This means that the
Constitution gives every member of every political party the right to exact
compliance with the constitution of a political party by the leadership of
that party. Courts can therefore scrutinise a political party’s constitution to
establish whether that party has acted in accordance with its own
constitution and may set aside decisions of that party where the party has
failed to adhere to its own constitution.44 The Court emphasised that in the
South African system of democracy, political parties ‘occupy the centre
stage and play a vital part in facilitating the exercise of political rights’.45
Therefore, political parties are indispensible conduits for the enjoyment of
some of the rights included in the Bill of Rights.46
Arguably, the implication of this judgment is that political parties must
operate in an essentially democratic manner and that political parties cannot
pursue policies that, at their core, are aimed at destroying the constitutional
democracy established by the Constitution. However, the Constitutional
Court has not provided a definitive answer on how to approach the question
of political parties whose aim is to overthrow our constitutional democracy.
CRITICAL THINKING
The EFF Constitution thus states that one of its aims is the
overthrow of the current state and replacing it with a
‘dictatorship of the people’. Any move to prohibit the EFF
from participating in elections or from operating in South
Africa in line with these goals will be met by arguments
regarding freedom of association. If the EFF is banned and
individuals are prohibited from belonging to the party, it will
infringe on the right of freedom of association of everyone
as well as the right of every citizen to form a political party
and to take part in its activities guaranteed in section 19 of
the Constitution. The question that will face a court in such
an event is whether the infringement of the rights is
justifiable in the interests of preserving constitutional
democracy in South Africa.
13.2.4 Balancing rights
It is not uncommon for the right to freedom of association to clash with
other rights and the adjudicating body then has to strike an appropriate
balance between the competing rights. In Forum for Black Journalists v
Katy Katopodis,48 the Appeal Committee of the South African Human
Rights Commission (SAHRC) had to consider whether a group of black
journalists could constitutionally exclude white journalists from a meeting
of their organisation. The primary objective of the Forum for Black
Journalists (FBJ) is the ‘upliftment of black journalists in general and the
African in particular’.49 FBJ organised an imbizo which was addressed by
Mr Jacob Zuma, the President of the ANC, as part of its relaunch. This was
before Mr Zuma became President of South Africa. The FBJ directed
invitations exclusively to black journalists, but these invitations were not
restricted to members of the organisation. White journalists who attempted
to attend the imbizo were either denied entry or requested to leave.
The FBJ argued that the right to associate, especially of a private body,
includes the right to dissociate. All the FBJ had to demonstrate was a
rational connection between the discriminatory policy and the association’s
ends. It justified its closed membership by pointing to the legitimate
objective of preventing the dilution of its voice in its pursuit of substantive
equality. The white journalists contended that excluding them from the
meeting solely on account of their race amounted to unfair discrimination
on the basis of race.
The Appeal Committee of the SAHRC found that the FBJ could not be
described as an intimate or private association as its membership was open
to all black journalists in the country.50 It lay on the continuum between an
intimate or private organisation and an overtly public organisation.51 The
more public an organisation is, the more difficult it is to justify exclusions
in furtherance of the freedom of association.52 The Appeal Committee
found that the purpose of uplifting black journalists in general and Africans
in particular was a legitimate objective.53 In defence of its racially
exclusive admissions policy, the FBJ relied heavily on their right to
freedom of association. The Committee reasoned as follows:
The issue before us is whether the FBJ acted in a
constitutionally impermissible fashion when it decided to
exclude white journalists from its membership and
prevented them from attending the Imbizo. The assertion
by the respondent is that the rights to dignity and not to
be subjected to unfair discrimination on the basis of race
have been infringed by the policies and practices of the
appellant.
Not admitting white journalists on the basis of their race
to the Imbizo and excluding them from membership of
the FBJ on the same basis is clearly invasive of their
right to dignity. The issue is whether the benefits that
accrue to the organisation justifies [sic] this intrusion …
… , the Supreme Court of Appeal in Midi Television (Pty)
Limited t/a e-tv v Director of Public Prosecutions 54 had to
reconcile and balance the freedom of expression and the
right to a fair trial. The following was stated:
Where the constitutional rights themselves have the
potential to be mutually limiting – in that the full
enjoyment of one necessarily curtails the full
enjoyment of another and vice versa – a court must
necessarily reconcile them. They cannot be reconciled
by purporting to weigh the value of one right against
the value of another and then preferring the right that
is considered to be more valued, and jettisoning the
other, because all protected rights have equal value.
They are rather to be reconciled by recognising a
limitation upon the exercise of one right to the extent
that it is necessary to do so in order to accommodate
the exercise of the other (or in some cases, by
recognising an appropriate limitation upon the
exercise of both rights) according to what is required
by the particular circumstances and within the
constraints that are imposed by Section 36.55
The judgment of the Appeal Committee of the SAHRC goes on to state:
In determining the extent to which the full exercise of
one right to the other or both of them might need to be
curtailed in order to reconcile them what needs to be
compared with one another are the ‘extent of the
limitation’ that is placed upon the particular right, on
the one hand, and the ‘purpose, importance and effect of
the intrusion’, on the other hand. To the extent that
anything needs to be weighed in making that evaluation
it is not the relative values of the rights themselves that
are weighed (I have said that all protected rights have
equal value) but it is rather the benefit that flows from
allowing the intrusion that is to be weighed against the
loss that the intrusion will entail. It is only if the
particular loss is outweighed by the particular benefit, to
an extent that meets the standard that is set by
section 36, that the law will recognise the validity of the
intrusion.
Thus the submission by the appellant that it can adopt a
racially exclusive membership policy provided that it
demonstrates a rational connection between its
discriminatory policy and the association’s ends is
inconsistent with comments made in the VA report and
with the dicta from Midi Television quoted above. The
FBJ has the right to form an association to uplift black
journalists and exclude persons whose objectives are
inimical to its founding values. FBJ used race as the
criterion and formed the view that all white journalists
should be excluded from their organisation. No
argument has been made as to why the less intrusive
admission policy which required a full commitment to
the values and goals of the organisation would not have
been sufficient to protect its distinct ‘voice’ and identity.
The imprecise and blunt instrument of racial exclusivity
was relied upon notwithstanding the egregious impact of
exclusions upon people who may have supported the
broader objectives of the organisation. There is nothing
before us which leads us to conclude that the racially
exclusive membership policies and practices bring a
legitimate benefit to the FBJ which justifies the
infringement of the right to dignity of the persons
excluded on the basis of race. In the circumstances, we
find that the exclusion of the white journalists both from
the Imbizo and from membership of the FBJ is not
justified in terms of section 36 of the Constitution.56
The Appeal Committee of the SAHRC thus found against the FBJ in this
case. As will be apparent from the above, it is necessary to determine what
benefit accrues as a consequence of the exclusion. The benefit must then be
weighed against the cost occasioned by such exclusion. The courts will
sanction the exclusion if the benefit outweighs the cost of the exclusion and
is a reasonable and proportionate response.
CRITICAL THINKING
13.3.1 Introduction
Freedom of religion and conscience – the freedom to hold views about
religious and other moral issues and the freedom to practice those beliefs –
goes to the heart of what it means to be human in a modern democracy. In
the open and democratic society contemplated by the Constitution, both the
religious beliefs held by the great majority of South Africans as well as the
beliefs of non-believers and minority faiths must be fully respected.61 As
the Constitutional Court pointed out in Minister of Home Affairs and
Another v Fourie and Another:
For many believers, their relationship with God or
creation is central to all their activities. It concerns their
capacity to relate in an intensely meaningful fashion to
their sense of themselves, their community and their
universe. For millions in all walks of life, religion
provides support and nurture and a framework for
individual and social stability and growth. Religious
belief has the capacity to awaken concepts of self-worth
and human dignity which form the cornerstone of
human rights. Such belief affects the believer’s view of
society and founds a distinction between right and
wrong. It expresses itself in the affirmation and
continuity of powerful traditions that frequently have an
ancient character transcending historical epochs and
national boundaries. For believers, then, what is at stake
is not merely a question of convenience or comfort, but
an intensely held sense about what constitutes the good
and proper life and their place in creation.62
However, non-believers may hold similarly strong and profound views
about the meaning of their lives not based on religious beliefs. This means
that religious beliefs or the absence of such beliefs – however honestly and
sincerely held – ‘cannot influence what the Constitution dictates’.63 This
conundrum highlights the fact that freedom of religion and conscience is a
right that demands serious engagement with the notion of diversity: how to
accommodate different and often diametrically opposed beliefs and views
about the world, while respecting and accommodating these diverse beliefs
and views.
Apart from the points set out above, it is also important to note that
religious activities often take place in a communal context. In recognition
of this fact, section 31 of the Constitution adds to the scope and content of
the right to freedom of religion. Section 31 of the Constitution deals with
the right of religious communities to practise their religion together with
other members of their community. The right can only be optimally
exercised if people of similar beliefs or faiths can assemble, jointly express
their beliefs, advance their religion and regulate their affairs. The right to
religious freedom, therefore, also includes the right to interact with fellow
believers to advance their religion and to regulate the religious affairs of
their organisations. This means an individual religious denomination must
have the right – to the extent that other rights do not limit this right – to
decide for itself on the rules for membership as well as the rules about the
behaviour of all members of the religious denomination. A fuller discussion
of the association rights contained in section 31 follows later in the chapter.
In the context of section 15, it is unnecessary to focus on whether a
specific belief is religious in nature or not as the section not only protects
the right to freedom of religion, but also to the right to freedom of
conscience, thought, belief and opinion. Nevertheless, it has been suggested
that to qualify as a ‘religious belief system’ a religion should have some of
the following features: ‘belief in a supreme being, belief in transcendent
reality, a moral code, a world view accounting for people’s role in the
universe, sacred rituals, worship and prayers, a sacred text, and membership
in a social organisation’.119
In the US context, it was held that the test should not be whether the
belief is objectively reasonable, but rather whether it forms part of the
practices and beliefs of that religion and whether persons belonging to that
religion genuinely and sincerely embrace the practice. The courts are
generally reluctant to question the genuineness of the belief if there is
evidence to suggest that the belief is sincerely held by the applicant. In
addition, the courts are generally reluctant to make determinations as to
whether the practice being restricted is central or foundational to the
religious beliefs. It is not the function of the court to interpret religious texts
or dogma. As O’Connor J, a former justice of the US Supreme Court, put it:
The dissent offers us the prospect of this court holding
that some sincerely held religious beliefs and practices
are not ‘central’ to certain religions, despite the
protestations to the contrary from religious observers
who brought the lawsuit. In other words, the dissent’s
approach would require us to rule that some religious
adherents misunderstand their own religious beliefs. We
think that such an approach cannot be squared with the
Constitution or with our precedents, and that it would
cast the judiciary in a role that we never intended to
play.120
Ngcobo J expressed similar sentiments in his dissenting judgment in Prince
v President of the Law Society of the Cape of Good Hope.121 In this case,
the issue was whether the Drugs and Drug Trafficking Act 122 and
section 22A of the Medicines and Related Substances Control Act 123 were
inconsistent with the Constitution in that they did not grant an exemption to
Rastafarians to possess and use dagga for religious purposes. Ngcobo J
cautioned against being overly concerned with whether a particular practice
is central to the religion, stating that:
Apart from this, as a general matter, the Court should
not be concerned with questions whether, as a matter of
religious doctrine, a particular practice is central to the
religion. Religion is a matter of faith and belief. The
beliefs that believers hold sacred and thus central to
their religious faith may strike non-believers as bizarre,
illogical or irrational. Human beings may freely believe
in what they cannot prove. Yet, that their beliefs are
bizarre, illogical or irrational to others or are incapable
of scientific proof, does not detract from the fact that
these are religious beliefs for the purposes of enjoying
the protection guaranteed by the right to freedom of
religion. The believers should not be put to the proof of
their beliefs or faith. For this reason, it is undesirable for
courts to enter into the debate whether a particular
practice is central to a religion unless there is a genuine
dispute as to the centrality of the practice.124
PAUSE FOR REFLECTION
‘We had to apply three times,’ said Gustav Nipe, chairman of the
organisation.
The church, which holds CTRL+C and CTRL+V (shortcuts for copy
and paste) as sacred symbols, does not directly promote illegal file
sharing, focusing instead on the open distribution of knowledge to
all.
CRITICAL THINKING
The community is not organized “on the basis of race,” said Jan
Groenewald, chairman of the board of directors of Kleinfontein,
which means “Little Fountain” in Afrikaans. Instead, he said, the
goal is to preserve a cultural bedrock that stretches back to the lore
of the hardy Voortrekker settlers.
13.5.1 Introduction
One of the factors that triggered the Soweto student uprisings in 1976 was
the insistence by the education authorities that Afrikaans and English be the
dual mediums of instruction in black schools in the area. Prior to this
decree, English was the sole medium of instruction. At the time, English
and Afrikaans were the only official languages. The apartheid government
perceived the implementation of Afrikaans as the medium of instruction in
schools as a method of entrenching and extending its dominance. The
perception that the language of the oppressor was being imposed on black
children fuelled the revolt against the apartheid government.
The uprising occurred against the backdrop of the mistreatment of
indigenous languages under apartheid. Such indigenous languages, even
though spoken by millions of people, were not afforded official recognition
in South Africa in the pre-democratic era. The message conveyed by this
non-recognition was that these languages were less important than English
and Afrikaans and had a lower status than the two languages then officially
recognised by the apartheid state.
To affirm the dignity of communities using the various languages and to
signal a decisive break with past thinking in this regard, section 6 of the
Constitution recognises Sepedi, Sesotho, Setswana, siSwati, Tshivenda,
Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu as official
languages of the Republic. Section 6(4) requires all official languages to be
treated equitably and to enjoy parity of esteem. Recognising that some
indigenous languages had been systematically disadvantaged, the
Constitution imposes an obligation on the state to take positive measures to
advance the status of these languages.219 The establishment of the Pan
South African Language Board is one of the initiatives that aims to foster
respect for all languages. The challenge facing those seeking to foster parity
of esteem is to deal with the dominance of English as the international
language of commerce, science, the law and technology.
CRITICAL THINKING
Section 30 of the Constitution provides that everyone has the right to use
their language while section 31 protects the right to do so with other
members of that community. As we have noted, sections 30 and 31 are
supported and buttressed by other rights. These rights include the right not
to be unfairly discriminated against on the basis of language in section 9(3)
and the qualified right to be educated in the official language of a person’s
choice in public educational institutions in section 29(2). People cannot
exercise these rights in a manner that unreasonably and unjustifiably limits
the rights of others. A decision by a governing body of an outstanding
school to retain Afrikaans as the sole medium of instruction may adversely
affect the rights of non-Afrikaans speaking learners in the region to an
effective and proper education.220 As in other instances, competing rights
may have to be appropriately balanced.
SUMMARY
14.1.1 Introduction
In the pre-democratic era, the apartheid state enforced severe forms of
censorship to limit the range of political speech as well as the range of
artistic expression allowed in the country. It was a criminal offence to quote
the words of former President Nelson Mandela or any other member of the
banned liberation movements. The Film and Publications Board also
regularly banned movies and books because of their political or sexual
content. Banning made it a criminal offence to possess, read or watch these
products of artistic expression. During the various states of emergency
which were in place for long periods in the 1980s, the ability of newspapers
to report on the actions of the police and the military were severely limited
by law.
Thus, in this pre-Internet era, the dark pall of censorship hung over South
Africa. These restrictions did not only constitute a denial of democracy.
They also exacerbated the impact of the systemic violations of other
fundamental human rights in South Africa.1
Black Wednesday
On 12 September 1977, Steve Bantu Biko – who espoused
the idea of black consciousness – died at the hands of the
apartheid police while in detention. Biko’s funeral was
attended by about 20 000 people. Partly in response to
these events, on the morning of 19 October 1977, scores
of Black Consciousness activists were arrested and
detained under section 10 of the Internal Security Act.2
In addition to the scores of people detained, about 18
organisations were banned and three newspapers – The
World, Weekend World and Pro Veritate – were also
‘banned’. Journalists were detained, including Mr Percy
Qoboza, then editor of The World, as well as a former
editor of the Sowetan, Mr Aggrey Klaaste. The Chairman of
the Committee of Ten, Dr Nthato Motlana, and some
executive committee members of the Teachers’ Action
Committee were also detained.
This day came to be known as Black Wednesday. In
South Africa today, 19 October is still commemorated with
the aim of celebrating media freedom and to protest
against real or perceived threats to the freedom of the
media.
Censorship is incompatible with South Africa’s present commitment to a
society based on a ‘constitutionally protected culture of openness and
democracy and universal human rights for South Africans of all ages,
classes and colours’.3 To prevent a recurrence of censorship, section 16 of
the Constitution explicitly guarantees the right to freedom of expression for
everyone. Section 16(1) states that this right includes:
• freedom of the press and other media
• freedom to receive or impart information or ideas
• freedom of artistic creativity
• academic freedom and freedom of scientific research.
However, section 16 does not protect all forms of expression. Section 16(2)
lists several forms of speech explicitly excluded from the protections
contained in section 16(1). Thus, propaganda for war, incitement of
imminent violence and advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to cause harm are not
constitutionally protected speech. Section 16(2) therefore ‘defines the
boundaries beyond which the right to freedom of expression does not
extend’, representing an ‘acknowledgment that certain expression does not
deserve constitutional protection because, among other things, it has the
potential to impinge adversely on the dignity of others and cause harm’.4
The right to freedom of expression is one of a ‘web of mutually
supporting rights’ in the Constitution.5 It is closely related to freedom of
religion, belief and opinion, the right to dignity, the right to freedom of
association, the right to vote and to stand for public office, and the right to
assembly. The Constitutional Court has considered the purpose behind the
right to freedom of expression in a number of cases.6 At the heart of the
guarantee of freedom of expression is the recognition of the importance,
‘both for a democratic society and for individuals personally, of the ability
to form and express opinions, whether individually or collectively, even
where those views are controversial’.7
Freedom of expression is therefore important for two reasons. First,
freedom of expression contributes to the goal of establishing a democratic
society. Second, freedom of expression constitutes an important aspect of
what it is to be human – it empowers individuals, bestows a certain agency
on us, and helps us to make informed and hopefully wise life choices and to
decide for ourselves who we are and how we want to live our lives.
O’Regan J referred to these two goals in her judgment in South African
National Defence Union v Minister of Defence, where she held that:
[f]reedom of expression lies at the heart of democracy. It
is valuable for many reasons, including its instrumental
function as a guarantor of democracy, its implicit
recognition and protection of the moral agency of
individuals in our society and its facilitation of the search
for truth by individuals and society generally. The
Constitution recognizes that individuals in our society
need to be able to hear, form and express opinions and
views freely on a wide range of matters.8
Given South Africa’s oppressive past, it is not surprising that the
Constitutional Court has emphasised the important role freedom of
expression plays in promoting democracy. In S v Mamabolo, for example,
Kriegler J held that:
[h]aving regard to our recent past of thought control,
censorship and enforced conformity to governmental
theories, freedom of expression – the free and open
exchange of ideas – is no less important than it is in the
United States of America. It could actually be contended
with much force that the public interest in the open
market-place of ideas is all the more important to us in
this country because our democracy is not yet firmly
established and must feel its way.9
In the absence of freedom of expression, individuals will not be able to take
part in the democratic process in a free and informed manner. Democracy
only functions well in a society in which it is possible for an individual to
change his or her mind. This is only possible when individuals are free to
report on events without fear, to express their opinions and beliefs, and to
receive such communication from others. This view of freedom of
expression is commonly related to the search for truth, which is said to be
best facilitated in an ‘open market-place of ideas’.10 Where there is a free
competition of ideas, so it is said, the best ideas, or the truth whatever that
may be, will eventually triumph. However, as the Constitutional Court
pointed out, ‘[t]hat obviously presupposes that both the supply and the
demand side of the market will be unfettered’.11 In a deeply unequal
society in which not everyone has equal access to information and in which
the voices of some may be privileged and may carry more weight than
others, it is unclear whether such a free marketplace of ideas can ever exist.
CRITICAL THINKING
CRITICAL THINKING
14.1.3.1 Introduction
Apart from the general right to freedom of expression, section 16(1) of the
Constitution lists certain specific forms of protected expression. These are:
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
Of these four specific forms of protected expression, the right to freedom of
the press and other media has received the most attention from the courts
and commentators. For the purposes of this book, therefore, we are going to
focus on this aspect of the right only.
14.1.4.1 Introduction
The Constitution is founded on the principles of dignity, equal worth and
freedom, and these principles should be given effect to. For this reason,
certain forms of expression do not deserve constitutional protection since
they have the potential to impugn the dignity of others and to cause harm.78
As we pointed out above, section 16(2) of the Constitution deals with
expression that is specifically excluded from the protection of the right to
freedom of expression. While section 16(2)(a) and (b) are concerned with
‘propaganda for war’ and ‘incitement of imminent violence’, section 16(2)
(c) is concerned with what is commonly referred to as ‘hate speech’. Out of
these three forms of excluded expression, hate speech has received the most
attention from the courts and commentators. For the purposes of this book,
therefore, we are going to focus on this form of excluded expression only.
Hate speech at a social level is said to be prohibited for one or more of
the following four reasons:
1. To prevent disruption to public order and social
peace stemming from retaliation by victims.
2. To prevent psychological harm to targeted groups
that would effectively impair their ability to
positively participate in the community and
contribute to society.
3. To prevent both visible exclusion of minority groups
that would deny them equal opportunities and
benefits of … society and invisibly exclude their
acceptance as equals.
4. To prevent social conflagration and political
disintegration.79
CRITICAL THINKING
14.2.1 Introduction
One of the most powerful ways in which individuals can express their
views on political and social issues is by coming together and protesting
peacefully. The freedom to assemble, demonstrate, picket and petition
therefore forms an integral part of the democratic rights of citizens in a
democracy. When a large crowd of people assemble in the street to express
their views on issues of the day, this can be viewed as a form of
participatory democracy.
In the apartheid era, rallies and demonstrations protesting against the
policies of the apartheid regime or aimed at popularising the ideas of anti-
apartheid organisations such as the United Democratic Front (UDF),
Azanian People’s Organisation (AZAPO), the African National Congress
(ANC) or the Pan Africanist Congress (PAC) were often banned by the
government. In one of the most famous incidents early in September 1989,
peaceful protest marchers in support of liberation, bearing placards
proclaiming ‘the people shall govern’ were sprayed with purple dye by the
police. A spirited activist seized the initiative and the nozzle from the police
and painted Cape Town purple, while an inspired graffitist put the writing
on the wall: ‘The purple shall govern!’ 94
In post-apartheid South Africa, the right to assemble and demonstrate
cannot legally be curtailed in the same manner. This is because section 17
of the Constitution guarantees the right to freedom of assembly,
demonstration, picket and petition. This section provides that ‘[e]veryone
has the right, peacefully and unarmed, to assemble, to demonstrate, to
picket and to present petitions’.
Democracy entails more than the right to vote in regular free and fair
elections. As we have seen in the first part of this book, democracy also
requires citizens actively to participate in public affairs. For this reason, the
right to freedom of assembly plays an important role in a democratic
society. Assemblies, demonstrations, pickets and petitions allow groups,
whose influence on political parties or the political process would otherwise
be minimal, to raise issues that are important to them, to draw attention to
these issues and to engage with their fellow citizens and representatives
about these issues.
Citizens also use such events to enforce their rights outside the formal
legal process because they can place pressure on the legislature and the
executive to ensure that these bodies do not infringe on the rights of
individuals. Such events can also help civil society groups to build support
for their causes and to mobilise voters in order to ensure more responsive
and accountable government from those who were elected to serve the
people. Often, such activities precede or go hand-in-hand with court
action.95
CRITICAL THINKING
Peaceful Assemblies
Like section 17 of the Constitution, Article 8(1) of the
German Constitution provides that ‘all Germans’ have the
right to ‘assemble peacefully and unarmed without prior
notification or permission’.
In the Brokdorf Demonstration case,99 a number of non-
governmental organisations announced that they were
planning to hold a large demonstration against plans to
build a nuclear power plant in Brokdorf. Following this
announcement, the relevant authorities banned any
demonstrations against the nuclear power plant in an area
covering 210 km2 around the site. The relevant authorities
based their decision on the grounds that they believed that
50 000 people would attend the demonstration and that
some of the demonstrators intended to engage in acts of
violence.
In dealing with this case, the Federal Constitutional
Court discussed the scope and ambit of the right to
assemble and, in particular, the requirements that the right
applies only to those assemblies that are peaceful. The
Court held that an assembly will be classified as non-
peaceful only if acts of physical violence against persons or
property are committed or threatened.100 In addition, the
Court also held that where the organisers and participants
in a demonstration do not plan to engage in acts of
physical violence, that demonstration may not be
prohibited or broken up if a small minority of demonstrators
or counter-demonstrators plan to engage in acts of
violence. In these sorts of cases, the Court went on to hold,
the authorities must act against the violent minority and not
against the demonstration as a whole. The demonstration
as a whole remains protected by Article 8.101
14.2.3 Distinguishing between assemblies,
demonstrations, pickets and petitions
14.2.3.2 Pickets
Picketing is a common feature in labour disputes. The Labour Relations Act
(LRA) 108 protects the right of trade unions and their members to picket.
Section 69(1) of the LRA, for example, provides that ‘[a] registered trade
union may authorize a picket by its members and supporters for the
purposes of peacefully demonstrating (a) in support of any protected strike;
or (b) in opposition to any lock-out’.
Section 69(2) of the LRA goes on to provide that ‘[d]espite any law
regulating the right to assembly, a picket authorised in terms of subsection
(1), may be held (a) in any place to which the public has access but outside
the premises of an employer; or (b) with the permission of the employer,
inside the employer’s premises’. The permission referred to in this section
may not be unreasonably withheld.109 The sorts of places referred to in
section 69(2) include shopping malls and waterfronts.
CRITICAL THINKING
14.3.1 Introduction
Before 1994, the majority of South Africans were prohibited from voting in
elections based solely on their race. The oppressive and undemocratic state
curtailed much of extra-parliamentary political activity. Liberation
movements such as AZAPO, the ANC, the PAC and the South African
Communist Party (SACP) were prohibited from operating in the country.
Police harassed and at times detained, tortured and even killed activists who
belonged to organisations such as the UDF – which was established in 1983
to spearhead resistance against apartheid – and the End Conscription
Campaign (ECC). In short, the majority of South Africans who opposed the
apartheid regime enjoyed little or no political rights.
The drafters of the Constitution therefore included a wide range of
political rights in the Constitution. Section 19(1) of the Constitution thus
states that ‘[e]very citizen is free to make political choices’. This includes
the right:
• to form a political party
• to participate in the activities of, or recruit members for, a political party
• to campaign for a political party or cause.
Section 19(2) states that ‘[e]every citizen has the right to free, fair and
regular elections for any legislative body established in terms of this
Constitution’ while section 19(3) confirms that ‘[e]very adult citizen’ has
the right:
• to vote in elections for any legislative body established in terms of this
Constitution and to do so in secret
• to stand for public office and, if elected, to hold office.
The Constitutional Court has considered the purpose behind the political
rights guaranteed in section 19 of the Constitution in a number of cases.139
In these cases, the Court has held that these rights are important for two
reasons. First, the rights are important because they are aimed at preventing
a recurrence of the wholesale denial of political rights that took place
during the apartheid era. Deputy Chief Justice Moseneke eloquently
explained this in Ramakatsa and Others v Magashule and Others where he
held that:
[d]uring the apartheid order, the majority of people in
our country were denied political rights that were
enjoyed by a minority. The majority of black people
could not form or join political parties of their choice.
Nor could they vote for those who were eligible to be
members of Parliament. Differently put, they were not
only disenfranchised but were also excluded from all
decision-making processes undertaken by the
government of the day, including those affecting them …
The purpose of section 19 is to prevent the wholesale
denial of political rights to citizens of the county from
ever happening again.140
A second reason why these rights are important is that they aim to give
effect to a system of representative democracy. In Ramakatsa, Moseneke
DCJ explained this by affirming that section 19 has to be interpreted against
the background of the Constitution as a whole, especially the role afforded
in the Constitution to political parties:
In our system of constitutional democracy political
parties occupy the centre stage and play a vital part in
facilitating the exercise of political rights. This fact is
affirmed by section 1 of the Constitution which
proclaims that ‘[u]niversal adult suffrage, a national
common voters roll, regular elections and a multi-party
system of democratic government, to ensure
accountability, responsiveness and openness’ are some of
the values on which our State is founded.141
In contrast to most of the rights set out in the Bill of Rights that attach to
‘every person’, the rights contained in section 19 of the Constitution are
available only to citizens.142 It can therefore be observed that the
Constitution distinguishes between citizens who are the bearers of political
rights and ‘everyone’ else, including, for example, foreign nationals, who
are not entitled to participate in the exercise of political rights. While
foreign nationals enjoy almost all the other rights contained in the Bill of
Rights, only citizens can invoke the political rights set out in section 19.
14.3.2.1 Introduction
Political parties lie at the heart of South Africa’s constitutional democracy.
The Constitution does not regulate the internal affairs of political parties.
Nor does it contain extensive provisions on the appropriate constitutional
relationship between political parties and constitutional structures such as
legislatures and executives. Note too that the right to make political choices
goes beyond the involvement of citizens in party politics: the involvement
of some citizens in social movements, citizen activism and other civil
society organs is also pivotal for the proper functioning of a democracy.
The rights to freedom of expression, assembly and association ensure that
these political activities not associated directly with political parties are
adequately protected by the Constitution.
However, section 19(1) of the Constitution, which guarantees for all
citizens the right to form, participate in the activities of and campaign for
political parties, affirms that such participation lies at the heart of the right
to make political choices. Section 19(1) thus primarily guarantees the
freedom to make a choice with regard to a political party and once that
choice has been made, it safeguards a member’s free and fair participation
in the activities of the party concerned.144
These provisions have a number of important consequences. Among
these are the following:
• First, members of a political party have a constitutional right to
participate in the activities of their party.
• Second, this constitutional right can be enforced not only against
external interference, but against interference arising from within the
party itself.145 The constitutions and rules of political parties must,
therefore, be consistent with the Constitution.146
Although the constitutions and rules of political parties must be consistent
with the Constitution, it is important to note that section 19(1) does not
spell out how members of a political party should exercise their right to
participate in the activities of their party. Instead, it is left to political parties
themselves to determine how their members should participate in their
activities. This is because these activities are internal matters of each
political party and they are best placed to determine how members should
participate. The constitutions of political parties are the instruments which
facilitate and regulate participation by members in the activities of a
political party.147
CRITICAL THINKING
CRITICAL THINKING
14.3.5.1 Introduction
Section 19(3) of the Constitution provides that ‘[e]very adult citizen has the
right: (a) to vote in elections for any legislative body established in terms of
this Constitution and to do so in secret; and (b) to stand for public office
and, if elected, to hold office’.
The Constitutional Court highlighted the significance of the right to vote
(and its intimate relationship with the value of human dignity that
permeates the Bill of Rights) in August. The Court held that ‘[t]he vote of
each and every citizen is a badge of dignity and of personhood. Quite
literally, it says that everybody counts’.183 The right to vote, therefore, is
symbolic of our citizenship and represents a practical manifestation of how
the Constitution recognises and protects the dignity of every citizen. Given
South Africa’s history in which the dignity of black South Africans was
systematically denied by the state – in part by denying black South Africans
the right to vote – this right and its protection is of profound importance for
every citizen. As O’Regan J stated in the New National Party judgment:
The obligation to afford citizens the right to vote in
regular, free and fair elections is important not only
because of the relative youth of our constitutional
democracy but also because of the emphatic denial of
democracy in the past. Many of the injustices of the past
flowed directly from the denial of the right to vote on the
basis of race to the majority of South Africans. The
denial of the right to vote entrenched political power in
the hands of white South Africans.184
Apart from its symbolic role of affirming the dignity of all, the
Constitutional Court held in Richter v The Minister for Home Affairs and
Others that the right to vote is also a crucial working part of our democracy:
Without voters who want to vote, who will take the
trouble to register, and to stand in queues, as millions
patiently and unforgettably did in April 1994, democracy
itself will be imperilled. Each vote strengthens and
invigorates our democracy. In marking their ballots,
citizens remind those elected that their position is based
on the will of the people and will remain subject to that
will. The moment of voting reminds us that both electors
and the elected bear civic responsibilities arising out of
our democratic Constitution and its values.185
To put this differently, voting reminds us that those elected to govern the
country do so by invitation of the voters who lend their vote to a specific
political party for a maximum period of five years. After five years, voters
have a right to re-evaluate this choice. If they are unhappy with how the
political party of their choice has served them, they can decide to lend their
vote to another party again for a limited period of no more than five years.
Section 1 of the Electoral Act defines a voter as a South African citizen
who is 18 years or older and whose name appears on the voters roll. As this
definition indicates, a citizen who is 18 years or older may vote only if his
or her name appears on the voters roll.186
A citizen’s name will appear on the voters roll only if he or she has
registered to vote in terms of section 6 of the Electoral Act. In New
National Party, the Constitutional Court held that the requirement in
section 1 of the Constitution that voting must occur in terms of a common
voters role means that registering to vote is an inherent requirement for the
exercise of the right to vote. The legislation that requires registration and
prevents unregistered voters from voting can therefore not be classified as
an infringement of the right to vote. It is a requirement for exercising the
right not an infringement of it.187
Despite the fact that section 19(3) of the Constitution provides that every
adult citizen has the right to vote, section 8 of the Electoral Act excludes
certain categories of adult citizens from voting by providing that they may
not be registered as voters. Section 8 of the Act provides in this respect that:
The chief electoral officer may not register a person as a
voter if that person:
(a) has applied for registration fraudulently or
otherwise than in the prescribed manner;
(b) has been declared by the High Court to be of
unsound mind or mentally disordered;
(c) is detained under the Mental Health Act 18 of 1973;
or
(d) is serving a sentence of imprisonment without the
option of a fine.189
These limitations are subject to the limitation clause as set out in section 36
of the Constitution and the courts could be called on to determine the
constitutionality of these exclusions. Apart from the right to vote,
section 19(3) also provides that every citizen has the right to vote in
secret.190
CRITICAL THINKING
Was the rationality standard used by the majority
in the New National Party case correct?
In her minority judgment in the New National Party case,
O’Regan J disagreed with the application of a rationality
standard to this issue. Given the role played by voting in
determining who should exercise political power, the right
to vote is ‘worthy of particular scrutiny by a court to ensure
that fair participation in the political process is afforded’.198
According to O’Regan J, the majority’s approach would be
appropriate in relation to determining whether legislation
giving rise to differential treatment is constitutional, but it
would be:
far too deferential a standard for determining whether legislation
enacted by Parliament to enable citizens to exercise their right to
vote gives rise to an infringement of the right to vote.
14.3.5.3.1 Introduction
Besides regulating the right to vote, Parliament has also excluded certain
categories of citizens from the right to vote. Among these are prisoners and
citizens living abroad. The Constitutional Court has considered the
constitutional validity of these exclusions in a number of cases.200
14.3.5.3.2 Prisoners
Apart from August which is discussed above, the Constitutional Court has
considered the exclusion of prisoners from the right to vote in Minister of
Home Affairs v National Institute for Crime Prevention and the Re-
integration of Offenders (NICRO) and Others.201 Unlike in August, this
case dealt with a legislative provision purporting to limit the rights of
prisoners to vote.202 The provisions effectively disenfranchised convicted
prisoners serving sentences of imprisonment without the option of a fine by
prohibiting them from registering as voters and from voting while in
prison.203 Unsentenced prisoners and prisoners incarcerated because of
their failure to pay their fines retained the right to register and vote.
After the provisions of the Electoral Laws Amendment Act 204 came
into operation, the respondents applied for an order declaring them to be
unconstitutional and invalid on the grounds that they unjustifiably infringed
the right to vote. A majority of the Constitutional Court agreed with the
respondents and granted the order.
The Constitutional Court accepted (and this was conceded by all parties)
that these provisions, which prevented most prisoners from voting,
infringed on their right to vote which is guaranteed in section 19(3)(a) of
the Constitution. The only question was whether such a limitation of the
right was justifiable in terms of the limitation clause or not. The majority of
the court (per Chief Justice Chaskalson) held that the limitation was not
justifiable and hence was unconstitutional.205
The Court rejected the argument that special arrangements would have to
made for the prisoners in question to vote and that these special
arrangements could put the integrity of the voting process at risk. Special
measures, therefore, would have to be put in place and this would put a
strain on the Electoral Commission’s financial and logistical resources. The
factual basis for this justification had not been established. The Electoral
Commission had made arrangements for registering unsentenced prisoners
and prisoners incarcerated because of their failure to pay their fines. There
was nothing to suggest that extending these arrangements to include
convicted prisoners serving sentences of imprisonment without the option
of a fine would place an undue burden on the Electoral Commission’s
financial and logistical resources. Apart from saying that it would be costly
to do so, the Minister provided no information about the logistical problems
or estimates of the costs involved.206
The Court also grappled with the argument advanced by the government
that it was important for the government to denounce crime and to
communicate to the public that the rights that citizens have, such as the
right to vote, are related to fulfilling their duties and obligations as citizens.
The Court pointed out that a majority of the Canadian Supreme Court had
rejected a similar argument in Sauve v Canada (Chief Electoral Officer)
207 despite the fact that the Canadian government had presented a great
deal of evidence to justify the law in question.208 Unlike the Canadian
government, the Court held further, the Minister had presented almost no
evidence to justify the Amendment Act other than simply saying that the
‘government did not want to be seen to be soft on crime and that it would
be unfair to others who cannot vote to allow prisoners to vote’.209 These
statements, the Court went on to conclude, could not hope to justify the
Amendment Act which applied to both serious and relatively minor crimes
and even to prisoners whose convictions and sentences were still under
appeal.210
PAUSE FOR REFLECTION
SUMMARY
Given that the majority of South Africa’s citizens were denied political
rights prior to 1994, it is not surprising that section 19 of the Constitution
protects a wide range of political rights. Among these are the right to make
political choices; the right to free, fair and regular elections and the right to
vote in secret and to stand for public office. These rights are important not
only because they are aimed at preventing the wholesale denial of political
rights from ever taking place again, but also because they are aimed at
giving effect to the system of representative democracy enshrined in the
Constitution.
In so far as the rights guaranteed in section 19 of the Constitution are
concerned, however, it is important to note that, unlike most of the other
rights set out in the Bill of Rights, these rights are available only to citizens.
The Constitution, therefore, distinguishes between citizens who are the
bearers of political rights and ‘everyone’ else, including, for example,
foreign nationals, who are not entitled to participate in the exercise of
political rights. While foreign nationals enjoy almost all of the other rights
contained in the Bill of Rights, only citizens can invoke the political rights
set out in section 19.
The political rights protected in section 19 of the Constitution must be
read together with the right to freedom of expression guaranteed in section
16 and the right to freedom of assembly, demonstration, picket and petition
guaranteed in section 18. This is because democracy entails more than
simply being able to vote. It must also give people an opportunity to form
their own views and to express them by coming together and protesting
peacefully. This allows people whose influence on political parties would
otherwise be minimal to raise issues that are important to them, to draw
attention to these issues and to engage with their fellow citizens and
representatives about these issues.
Apart from participation in the political process, the rights to freedom of
expression and assembly, demonstration, picket and petition also promote a
number of other goals. The right to freedom of expression, for example,
recognises and protects the moral agency of individuals in our society and
facilitates the search for truth. The right to freedom of assembly,
demonstration, picket and petition promotes the development of each
individual’s unique personality. This is because our personalities do not
develop in isolation, but rather in the context of groups. Cultural, education
and religious assemblies may, therefore, be as important as political
assemblies.
Finally, it is important to note that both of these rights have internal
modifiers. The right to freedom of expression, therefore, does not include
the right to promote war, incite imminent violence or advocate hatred that is
based on race, ethnicity, gender or religion, and that constitutes incitement
to cause harm. The right to freedom of assembly, demonstration, picket and
petition does not include the right to assemble, demonstrate, picket or
petition in a violent or armed manner. Although these sorts of activities are
not prohibited by the Constitution, they are also not protected by the
Constitution. This means that they may be prohibited by legislation. The
Promotion of Equality and Prevention of Unfair Discrimination Act
(PEPUDA) thus prohibits hate speech and the Regulation of Gatherings Act
prohibits armed and violent assemblies, demonstrations and pickets.
1 See S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 28; Islamic Unity Convention v Independent Broadcasting Authority
and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April
2002) para 25.
2 Act 74 of 1982.
3 Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94) [1995]
ZACC 12; 1995 (12) BCLR 1593; 1996 (1) SA 725 (29 November 1995) para 26.
4 Islamic Unity Convention para 30.
5 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7;
1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 8.
6 See Shabalala; South African National Defence Union; Islamic Unity Convention; Mamabolo.
7 South African National Defence Union para 8.
8 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 7.
9 (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April
2001) para 37.
10 Mamabolo para 37.
11 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety
and Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5)
BCLR 608 (9 May 1996) para 26.
12 Herman, ES and Chomsky, N (1988) Manufacturing Consent: The Political Economy of the
Mass Media 306.
13 Herman and Chomsky (1988) 306.
14 Case para 26.
15 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 18.
16 (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC);
2009 (3) BCLR 309 (CC) (31 July 2008) para 52. See also Mthembi-Mahanyele v Mail &
Guardian Ltd and Another (054/2003) [2004] ZASCA 67; [2004] 3 All SA 511 (SCA)
(2 August 2004) para 41.
17 The First Amendment reads as follows: ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or of the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances’.
18 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003 (4) BCLR 357 (11 March 2003).
19 Phillips para 15.
20 Islamic United Convention paras 28–9.
21 Hamata and Another v Chairman, Peninsula Technikon Internal Disciplinary Committee and
Others 2000 (4) SA 621 (C) para 32.
22 Islamic Unity Convention para 27.
23 Islamic Unity Convention para 28.
24 Islamic Unity Convention para 31.
25 (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005)
para 47.
26 See De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others
(CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003) para 48.
27 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
28 Act 65 of 1996.
29 De Reuck paras 46–7.
30 De Reuck para 48.
31 De Reuck para 48.
32 De Reuck para 59.
33 De Reuck para 64–5.
34 De Reuck paras 71–9.
35 Lucas, M (2006) On gay porn Yale Journal of Law and Feminism 18(1):299–302 at 299.
36 Lucas (2006) 299. See also Sherman, JG(1995) Love speech: The social utility of pornography
Stanford Law Review 47(4):661–706 at 702–3, where he argues that ‘gay male pornography is
a necessary tool in gay men’s struggle to attain sexual integrity’, and asserts that ‘[t]he relative
importance of pornography in the gay male imagination results from the suppression of other
forms of gay expression: not only artistic expression but lived interpersonal expression’.
37 Khumalo paras 22–4; South African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007
(2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006) para 24; Print Media South
Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22;
2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012) para 54.
38 Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995 (2)
SA 221 (T) 227H–228A.
39 Khumalo para 24.
40 Sunday Times 227H–228A.
41 Bill B1.4 of 2010.
42 S 1.1.
43 S 1.1 of the Secrecy Bill.
44 S 1.1 of the Secrecy Bill.
45 1.1.
46 S 32 of the Secrecy Bill.
47 S 32 of the Secrecy Bill.
48 S 22.
49 De Vos, P (2011, 31 May) Let me tell you a secret … Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/let-me-tell-you-a-secret/. For further criticism on the Bill,
see generally Donnelly, L (2011, 23 June) Secrecy bill extension welcomed – concerns remain
Mail & Guardian Newspapers available at http://mg.co.za/article/2011-06-23-secrecy-bill-
extension-welcomed-concerns-remain.
50 See Holomisa v Argus Newspaper 1996 (2) SA 588 (W) 855–56; Midi Television (Pty) Ltd v
Director of Public Prosecutions (Western Cape) (100/06) [2007] ZASCA 56; [2007] SCA 56
(RSA); [2007] 3 All SA 318 (SCA) (18 May 2007) para 6; South African Broadcasting
Corporation para 42; Johncom Media Investments Limited v M and Others (CCT 08/08) [2009]
ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 28.
51 (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL
18339 (CC) (21 September 2006).
52 SABC para 29
53 SABC para 30.
54 SABC para 41.
55 SABC para 11.
56 SABC para 42. See also generally S v Shinga (Society of Advocates (Pietermaritzburg)) as
Amicus Curiae), S v O’Connell and Others (CCT56/06, CCT80/06) [2007] ZACC 3; 2007 (5)
BCLR 474 (CC); 2007 (2) SACR 28 (CC) (8 March 2007).
57 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)
para 39.
58 Independent Newspapers paras 40–1.
59 Independent Newspapers para 43.
60 Independent Newspapers para 44.
61 Independent Newspapers para 45.
62 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March
2009).
63 70 of 1979.
64 Johncom Media Investments para 23.
65 Johncom Media Investments para 29.
66 Johncom Media Investments para 30.
67 Johncom Media Investments para 42.
68 (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC)
(28 September 2012).
69 Print Media South Africa para 20.
70 Print Media South Africa para 27.
71 Print Media South Africa para 17.
72 Print Media South Africa para 60.
73 Print Media South Africa para 98.
74 Print Media South Africa para 55.
75 Print Media South Africa para 56.
76 ICASA was created by the Independent Communications Authority of South Africa Act 13 of
2000. For a discussion on the role of the regulation of the public broadcaster, see Tomaselli,
KG (2008) Exogenous and endogenous democracy: South African politics and media
International Journal of Press/ Politics 13(2):171–80 at 171.
77 There are therefore similarities between the regulation of electronic broadcasters and that of the
print media although different bodies deal with complaints relating to these categories of the
media in terms of different Codes.
78 Islamic United Convention para 10.
79 Afri-Forum and Another v Malema and Others (20968/2010) [2011] ZAEQC 2; 2011 (6) SA
240 (EqC); [2011] 4 All SA 293 (EqC); 2011 (12) BCLR 1289 (EqC) (12 September 2011)
para 29, citing Braun, S (2004) Democracy Off Balance: Freedom of Expression and Hate
Propaganda Law in Canada 62.
80 See also Govindjee, A ‘Freedom of expression’ in Govindjee, A and Vrancken, P (2009)
Introduction to Human Rights Law 122.
81 Act 4 of 2000.
82 S 1 of the PEPUDA defines prohibited grounds as ‘race, gender, sex, pregnancy. marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth’ or any other ground where discrimination causes or perpetuates
systemic disadvantage or undermines human dignity or adversely affects the equal enjoyment
of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a
listed ground.
83 See De Vos, P (2010) On ‘Shoot the Boer’, hate speech and the banning of struggle songs 11.
84 (2010 (7) BCLR 729 (EqC)) [2010] ZAEQC 2; 02/2009 (15 March 2010) para 2.
85 Sonke Gender Justice Network para 17(b)(x).
86 De Vos (2010) 12.
87 (20968/2010) [2011] ZAEQC 2; 2011 (6) SA 240 (EqC); [2011] 4 All SA 293 (EqC); 2011
(12) BCLR 1289 (EqC) (12 September 2011).
88 Afri-Forum paras 109–11.
89 Afri-Forum para 93.
90 (44/2009) [2010] ZASCA 41; 2010 (4) SA 210 (SCA); [2010] 3 All SA 497 (SCA) (30 March
2010) para 7.
91 Afri-Forum paras 7–8.
92 Afri-forum paras 35–6.
93 De Vos, P (2011, 12 September) Malema judgment: A re-think on hate speech needed
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/malema-judgment-
a-re-think-on-hate-speech-needed. See also Modiri, J (2013) Race, realism and critique: The
politics of race and Afri-forum v Malema in the Equality Court South African Law Journal
130(2):274–93; Brown, J (2012) Judges’ history: On the use of history in the Malema
judgment South African Journal on Human Rights 28(2):316–27.
94 Smuts, D and Westcott, S (eds) (1999) The Purple Shall Govern: A South African A to Z of
Nonviolent Action.
95 See Berger, JM (2001) Litigation strategies to gain access to treatment for HIV/AIDS: The case
of South Africa’s Treatment Action Campaign Wisconsin International Law Journal 20:595–
614 at 596; Berger, JM and Kapczynski, A ‘The story of the TAC case: The potential and limits
of socio-economic rights litigation in South Africa’ in Hurwitz, DR and Satterthwaite, ML
(eds) (2009) Human Rights Advocacy Stories.
96 Berger and Kapczynski (2009) 4.
97 (CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC); [2012] 10 BLLR 959 (CC); (2012)
33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June 2012) para 61.
98 Woolman, S ‘Assembly, demonstration and petition’ in Currie, I and De Waal, J (2013) The
Bill of Rights Handbook 6th ed 377.
99 BVerfGE 73, 206.
100 BVerfGE 73, 206 at 360.
101 BVerfGE 73, 206 at 361.
102 Rautenbach, IM and Malherbe, EFJ (2012) Constitutional Law 6th ed 376.
103 Rautenbach and Malherbe (2012) 376.
104 Act 205 of 1993.
105 S 1 of the Regulation of Gatherings Act.
106 S 1 of the Regulation of Gatherings Act.
107 Woolman (2013) 386.
108 Act 66 of 1995.
109 S 69(3) of the LRA.
110 (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537 (KZD);
(2010) 31 ILJ 2539 (KZD) (3 September 2010).
111 Growthpoint Properties para 46.
112 Growthpoint Properties paras 47–8.
113 Growthpoint Properties para 57.
114 Growthpoint Properties para 58
115 Growthpoint Properties para 59.
116 Growthpoint Properties para 60
117 Growthpoint Properties para 61.
118 Rautenbach and Malherbe (2012) 377.
119 See Free State Petitions Act 2 of 2008; Gauteng Petitions Act 5 of 2002; KwaZulu-Natal
Petitions Act 4 of 2003; Limpopo Petitions Act 4 of 2003; Mpumalanga Petitions Act 6 of
2000; Northern Cape Petitions Act 8 of 2009; North West Petitions Act 2 of 2010.
120 Act 17 of 1956.
121 Act 74 of 1982.
122 For a comprehensive discussion of the operation of the Regulation of Gatherings Act, see
Currie and De Waal (2013) 381–3.
123 S 9(2)(e) of the Gatherings Act. See also Memeza, M (2006) A critical review of the
implementation of the Regulation of Gatherings Act 205 of 1993: A local government and civil
society perspective available at http://www.fxi.org.za.
124 De Vos, P (2009) Freedom of assembly and its limits Constitutional Court: Without Prejudice
9(8):4–5.
125 S 3(5)(c).
126 S 4(1).
127 S 4(4)(b).
128 S 4(4)(c) of the Gatherings Act.
129 Inside Rustenburg’s banned protests (2013, 7 March) available at
http://www.ru.ac.za/facultyofhumanities/latestnews/name,79323,en.html.
130 S 3(2)
131 S 11(1).
132 SATAWU para 37.
133 SATAWU para 38.
134 SATAWU para 39.
135 SATAWU para 43.
136 SATAWU paras 4–5.
137 SATAWU paras 51–9.
138 SATAWU paras 34 and 94.
139 New National Party v Government of the Republic of South Africa and Others (CCT9/99)
[1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (CC) (13 April 1999) para 10; Minister
of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders
(NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280; 2004 (5) BCLR 445
(CC) (3 March 2004) para 47; Ramakatsa and Others v Magashule and Others (CCT 109/12)
[2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
140 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
141 Ramakatsa para 65.
142 In Richter v The Minister for Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC
3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12 March 2009) and AParty and Another
v The Minister for Home Affairs and Others, Moloko and Others v The Minister for Home
Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009
(6) BCLR 611 (CC) (12 March 2009), the Constitutional Court was called on to determine the
voting rights of non-resident citizens.
143 Rautenbach and Malherbe (2012) 382.
144 Ramakatsa para 71. S 197(3) of the Constitution provides that no employee of the public
service may be favoured or prejudiced because he or she supports a particular political party or
cause.
145 Ramakatsa para 71.
146 Ramakatsa para 72.
147 Ramakatsa para 73.
148 ANC National Disciplinary Committee: Press Statement (2012, February) Public
Announcement on the Disciplinary Hearings of F Shivambu, J Malema and S Magaqa
available at http://www.anc.org.za/show.php?id=9414.
149 There are several references to political parties in the Constitution. For example, s 47(3)(c)
states that a member of the NA who ‘ceases to be a member of the party that nominated that
person as a member of the Assembly’ will lose his or her membership of the Assembly. S 57(2)
(b) similarly allows minority parties to participate in the proceedings of the NA in a manner
consistent with democracy.
150 Act 73 of 1998.
151 Act 51 of 1996.
152 Ss 15, 16 and 17 of the Electoral Commission Act as well as ss 26–31 of the Electoral Act.
153 Ss 26(b) and 27 of the Electoral Act.
154 S 99 of the Electoral Act.
155 Liberal Party v The Electoral Commission and Others (CCT 10/04) [2004] ZACC 1; 2004 (8)
BCLR 810 (CC) (5 April 2004).
156 (CCT 10/06) [2006] ZACC 1; 2006(3) SA 305 (CC); 2006(5) BCLR 579 (CC) (24 February
2006) para 31.
157 Act 27 of 2000.
158 African Christian Democratic Party para 27.
159 African Christian Democratic Party para 21.
160 African Christian Democratic Party para 33.
161 Act 103 of 1997.
162 Lowry, MP (2008) Legitimizing elections through the regulation of campaign financing: A
comparative constitutional analysis and hope for South Africa Boston College International
and Comparative Law Review 31(2):185–212 at 185.
163 Steytler, N ‘The legislative framework governing party funding in South Africa’ in Matlosa, K
(2004) The Politics of State Resources: Party Funding in South Africa 59 and 64. For a
discussion regarding the funding of political parties, see generally Tshitereke, C (2002)
Securing democracy: Party finance and party donations – the South African challenge Institute
for Security Studies 63:1–12.
164 Act 2 of 2000.
165 (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April 2005)
para 50.
166 IDASA para 53. S 50(1)(a) of the PAIA provides that ‘[a] requester must be given access to any
record of a private body if: (a) that record is required for the exercise or protection of any right;
(b) that person complies with the procedural requirements in this Act relating to a request for
access to that record; and (c) access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part’.
167 IDASA para 71.
168 IDASA para 71.
169 Lowry (2008) 189.
170 In this regard, see Sarakinsky, I (2007) Political party finance in South Africa: Disclosure
versus secrecy Democratization 14(1):111–28 at 120–1.
171 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).
172 New National Party para 12. In the same case the Constitutional Court also held that unlike the
right to vote, all South African citizens irrespective of their age have a right to free, fair and
regular elections (para 12).
173 New National Party para 118 where O’Regan stated: ‘Unlike some of the other rights in
chapter 2 of the Constitution, the primary obligation which section 19(2) and (3) impose upon
government is not a negative one, requiring government to refrain from conduct which could
cause an infringement of the right, but a positive one, requiring government to take positive
steps to ensure that the right is fulfilled.’
174 See New National Party paras 13–14; August and Another v Electoral Commission and Others
(CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999) para 16;
NICRO para 28; Richter para 54.
175 New National Party para 16.
176 S 181(3) provides that ‘[o]ther organs of state, through legislative and other measures, must
assist and protect [the Chapter Nine Institutions] to ensure the independence, impartiality,
dignity and effectiveness of these institutions’ and s 181(4) provides that ‘[n]o person or organ
of state may interfere with the functioning of [the Chapter Nine Institutions]’. The Electoral
Commission is also accountable to the NA, and must report on its activities and the
performance of its functions at least once a year (s 181(5)).
177 New National Party para 98.
178 New National Party para 99.
179 New National Party para 12.
180 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
181 S 5(1)(e) of the Electoral Commission Act.
182 August para 33.
183 August para 17.
184 New National Party para 120.
185 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009) para 53.
186 In New National Party para 6, the Constitutional Court held that these three requirements are
derived from s 19(3) of the Constitution read together with s 46(1)(b) and 46(1)(c). S 46(1)(b)
provides that ‘the National Assembly consists of no fewer than 350 and no more than 400
women and men elected as members in terms of an electoral system that is based on the
national common voters roll’ and s 46(1)(c) provides that ‘the National Assembly consists of
no fewer than 350 and no more than 400 women and men elected as members in terms of an
electoral system that provides for a minimum voting age of 18 years’.
187 New National Party para 15.
188 Rautenbach and Malherbe (2012) 89 fn 56.
189 The fact that prisoners who were serving life sentences without the option of a fine were
excluded from voting was declared unconstitutional by the Constitutional Court in NICRO.
190 The rendering of assistance by electoral officials at the request of a voter is also subject to the
secrecy of the vote. S 39 of the Electoral Act provides that assistance may be given to voters
who are unable to read, are blind or visually impaired. For a discussion of the plight of the
visually impaired, see generally Maseko, TW (2009) The right of blind and visually impaired
citizens to vote in secret: Is there a duty to do more? SA Public Law 24(2):623–39.
191 S 6(1) of the Electoral Act provides that ‘[a]ny South African citizen in possession of an
identity document may apply for registration as a voter’ and s 1 of the Act defines an identity
document as a bar-coded identity card issued in terms of the Identification Act 68 of 1997 or a
temporary identification certificate issued in terms of the Identification Act.
192 New National Party para 19.
193 New National Party para 24.
194 New National Party para 26.
195 New National Party para 20.
196 New National Party para 23.
197 New National Party para 43.
198 New National Party para 122.
199 New National Party para 122.
200 See August; NICRO; Richter; AParty.
201 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004).
202 The amendments to the Electoral Act effecting these limitations were made shortly before the
2004 general election when Parliament passed the Electoral Laws Amendment Act 34 of 2003.
203 S 8(2)(f) of the Electoral Act prohibited convicted prisoners who were ‘serving a sentence of
imprisonment without the option of a fine’ from registering as voters and s 24B(2) prohibited
convicted prisoners who were ‘serving a sentence of imprisonment without the option of a
fine’ and who were already on the voters roll from voting if they were in prison on the day of
the election.
204 Act 34 of 2003.
205 NICRO para 16.
206 NICRO para 49.
207 2002 SCC 68.
208 NICRO para 58.
209 NICRO para 66.
210 NICRO para 67.
211 Richter para 56.
212 Richter para 57.
213 Richter para 68.
214 Richter para 69.
215 Richter para 76.
216 Richter para 77.
217 Richter para 78.
Administrative justice, access to
information, access to courts and
labour rights
15.1 Introduction
15.2 The right to just administrative action
15.2.1 Introduction
15.2.2 The relationship between the Constitution, the
Promotion of Administrative Justice Act 3 of 2000 and the
common law
15.2.3 Legislative, executive and judicial actions
15.2.4 The principle of legality
15.2.5 The main provisions of the PAJA
15.2.5.1 What constitutes administrative action
15.2.5.2 The key obligations imposed by the PAJA
15.2.5.2.1 Introduction
15.2.5.2.2 Lawful administrative action
15.2.5.2.3 Reasonable administrative action
15.2.5.2.4 Procedurally fair administrative action
15.2.5.2.5 The right to be given reasons for an administrative
action
15.3 The right of access to information
15.3.1 Introduction
15.3.2 Interpretation of the Promotion of Access to
Information Act 2 of 2000
15.3.2.1 The purpose of the PAIA
15.3.2.2 The regulation of access to information by the PAIA
15.3.2.3 The question of a ‘judicial peek’ at refused records
15.4 The right of access to the courts
15.4.1 Introduction
15.4.2 Threshold question: can the dispute in question be
resolved by the application of law?
15.4.3 Access to courts and other forums
15.4.3.1 A positive obligation on the state
15.4.3.2 The prohibition of self-help
15.4.3.3 Does a commission of enquiry constitute an
independent and impartial tribunal?
15.5 Labour relations
15.5.1 Introduction
15.5.2 The scope and ambit of section 23 of the Constitution
15.5.3 The right to fair labour practices
15.5.3.1 Introduction
15.5.3.2 Unfair dismissals in terms of the Labour Relations
Act 66 of 1995
15.5.3.3 Unfair labour practices in terms of the LRA
15.5.3.4 Unfair labour practices in terms of section 23(1) of
the Constitution
15.5.4 The right of every worker to form and join a trade union
15.5.5 The right of every worker to participate in the activities
and programmes of a trade union
15.5.6 The right of every worker to strike
15.5.7 The right to engage in collective bargaining
15.5.7.1 Introduction
15.5.7.2 The right to engage in collective bargaining and the
LRA
15.5.7.3 The right to engage in collective bargaining and the
Constitution
Summary
15.1 Introduction
Certain rights are of particular importance because they enhance the quality
of a democracy and the conditions under which people live in that
democracy. Although these rights are not political rights per se, they create
conditions within which individuals can exercise many of their other rights
in an effective manner. Such rights are closely aligned with the value of
human dignity. This is because they take as their starting point the idea that
the individual human dignity of each person can be effectively protected
only if legal rules and regulations enhance the ability of each individual to
make important life choices despite the fact that they may not hold as much
power as the state or private bodies. These rights therefore aim to equal the
playing field by requiring the powerful to adhere to pre-announced rules, to
act in a relatively transparent manner, to share information and to provide
individuals with access to courts. This access to courts will assist
individuals to enforce these rights as well as the other rights needed to
promote their well-being and for their dignity to be fully respected. In this
chapter we discuss some of these rights, including the right to fair
administrative action, the right of access to information, the right of access
to courts and labour rights.
15.2.1 Introduction
In most modern societies the law confers a wide range of discretionary
powers on public officials. These discretionary powers allow public
officials, for example, to grant a person a pension, a social grant, a tender or
a tax exemption. They also give public officials the power to issue building
permits, fishing licences, passports and so on.
While these sorts of discretionary powers have to be granted to
government officials to ensure that modern government works effectively,
the exercise of such powers may also be abused to the detriment of ordinary
people who rely on the state to deal fairly with such matters. To prevent
abuse, the right to administrative justice guaranteed in section 33 of the
Constitution provides that these powers must be exercised in a manner that
is lawful, reasonable and procedurally fair.
This right must be viewed against the context of South Africa’s apartheid
past. During the apartheid era, government officials routinely abused their
discretionary powers. These discretionary powers were constantly expanded
by legislation, especially in the latter years of the apartheid regime. At the
same time, the court’s common law authority to review the exercise of these
powers was often restricted or ousted.1 Even where the courts’ jurisdiction
was not ousted, apartheid-era courts sometimes appeared reluctant to
exercise their power of administrative review.2
The Constitution seeks to prevent a recurrence of this abuse of power. It
therefore includes a right to just administrative action in section 33 of the
Bill of Rights. The primary purpose of the right to administrative justice is
to ensure that the administrative powers given to public officials are
exercised in a procedurally fair manner and that the outcome of the
decision is lawful and reasonable. It is thus a right which seeks to ensure
proper processes are followed before administrative decisions are made and
that those decisions are lawful and reasonable.
Apart from granting courts the power to review and set side decisions
that are unreasonable, unlawful and procedurally unfair, the right to
administrative justice also requires public officials to provide reasons for
administrative decisions that adversely affect rights. The duty to supply
reasons is intended to ensure that public officials properly apply their minds
before making a decision. This particular provision of the right contributes
to better decision making.
Baxter divides administrative law into general and particular aspects.
Specific administrative law refers to the principles of law that are
applicable to discrete areas of administration, for example education, the
environment, the police, the revenue service and so on. In most instances,
an enabling Act regulates these areas, as well as regulations promulgated in
terms of the Act and decisions interpreting the Act and the regulations.
General administrative law refers to the principles of law that are
applicable to all administrative entities. Most textbooks deal with the
general principles of administrative law that are applicable to the entire
administration.3
Prior to 1994, the legal principles that were applicable to all
administrative entities, in other words, general administrative law, were
drawn largely from the common law. The common law afforded the courts
the inherent power to set aside decisions that were procedurally unfair, that
failed to comply with the requirements of the enabling statute or that were
so grossly unreasonable that some irregularity could be inferred. One of the
major shortcomings of the common law, however, was that it imposed no
general obligation on the public official to provide reasons for his or her
decision.
In 1994, momentous changes occurred with the promulgation of the
interim Constitution. Section 24 of the interim Constitution entrenched the
right to administrative justice. It afforded every person the right to lawful
and procedurally fair administrative action in certain circumstances. In
addition, there was an obligation to provide reasons when rights or interests
were affected. Apart from these rights, ‘every person’ was also given the
right to ‘administrative action which is justifiable in relation to the reasons
given for it where any of his or her rights is affected or threatened’ (our
emphasis).4
The final Constitution retained an administrative justice clause in
section 33 of the Bill of Rights, but the wording of the section is slightly
different from the wording in section 24 in the interim Constitution.
Section 33 of the Constitution specifically protects four categories of
administrative justice rights. It protects the right to lawful, reasonable and
procedurally fair administrative action 5 and affords everyone whose rights
have been adversely affected by administrative action the right to be given
written reasons.6
PAUSE FOR REFLECTION
Apart from the four categories of administrative justice rights, the right to
lawful, reasonable and procedurally fair administrative action and the right
to be given written reasons for a decision, section 33 also provides that
national legislation has to be enacted to give effect to the right to
administrative justice and that this legislation has to achieve three
objectives:
• It has to ensure and provide for the review of administrative action by a
court or other independent tribunal.
• It has to impose a duty on the state to give effect to the rights.
• It has to promote an efficient administration.12
The primary purpose of the third objective is to ensure that an appropriate
balance is maintained so that the state is not unduly burdened by
administrative requirements which could seriously inhibit its core functions.
Unlike most of the other rights in the Bill of Rights, section 33 did not
come into operation when the rest of the Constitution did on 3 February
1997. This is because the transitional provisions in section 23 of Schedule 6
provided that Parliament had to enact the national legislation referred to in
section 33(3) within three years of the commencement of the Constitution,
namely by 3 February 2000. In addition, it also provided that during this
period, section 33 would be suspended and the right to administrative
justice guaranteed in section 24 of the interim Constitution (slightly
reworded) would remain in force.
The national legislation referred to in section 33(3) is the Promotion of
Administrative Justice Act (PAJA).13 This Act was passed on 3 February
2000 and, with the exceptions of section 4 and section 10, it came into
operation on 30 November 2000. Sections 4 and 10 came into operation on
31 July 2002.
No doubt the concept of legality is an evolving one and its full impact will
be incrementally felt. At present, the standard of review under legality is
that of rationality whereas the more exacting standard of reasonableness can
be used in terms of the PAJA when reviewing administrative action.
The current position, therefore, is that administrative action is reviewable
under the PAJA while the exercise of public power that cannot be classified
as administrative action can be reviewed under the principle of legality.
Table 15.1 below illustrates the differences between the principle of legality
and the right to just administrative action. We thus have parallel tracks to
review the exercise of public power. It may be argued that it would be more
effective if the definition of administrative action in the PAJA was either
omitted or broadened to cover some executive action. Litigants could then
rely on the PAJA for the review of decisions by members of the executive
even when these decisions constitute executive action and not
administrative action.
However, this argument may be problematic. Some exercises of public
powers by the executive are inherently more political than other decisions.
They may also require that the members of the executive have a wider
discretion when they exercise these powers. When the President wishes to
fire the head of the intelligence service, for example, or when he or she
wishes to appoint a commission of enquiry into a recent catastrophic event
such as the shooting of a large number of citizens by the police, it would be
impractical and would hinder effective government if the President was
required to follow all the requirements of fair process associated with
administrative action. It may take weeks or even months to comply with all
the fair procedures required by the PAJA while the executive decision may
require much swifter action to ensure good governance.
Table 15.1 The differences between the principle of legality and the
right to just administrative action
15.2.5.2.1 Introduction
After an applicant has managed to show that the exercise of public power in
question falls into the definition of an administrative action, he or she is
entitled to claim the administrative rights set out in the PAJA. Among the
most important of these administrative rights are the following:
• the right to lawful administrative action
• the right to reasonable administrative action
• the right to procedural fairness
• the right to be given reasons for an administrative decision.
In so far as these rights are concerned, however, it is important to note that
section 2 of the PAJA provides that the Minister of Justice may, by notice in
the Government Gazette, if it is reasonable and justifiable in the
circumstances, exempt an administrative action or a group or class of
administrative actions from either of the first two rights. Parliament must
approve such an exemption before it is published in the Gazette.
The Minister’s power to exempt administrative actions from the first two
rights is therefore subject to two constraints:
• First, the exemption must be reasonable and justifiable.
• Second, Parliament must approve the exemption.
a) Introduction
Lawfulness lies at the very heart of just administrative action and provides
that an administrator – somebody who exercises public power that amounts
to administrative action – must act in terms of and in accordance with the
terms of an empowering statute. The right to lawful administrative justice,
therefore, prohibits administrators from taking decisions that are not
authorised by law or from ignoring any statutory requirements that are
attached to the exercise of the power in question. An administrator who
fails to comply with these requirements, therefore, is said to be acting ultra
vires.72
The right to lawful administrative action, however, goes beyond simply
providing that an administrator must act in terms of and in accordance with
the terms of an empowering statute and includes a number of other grounds
of review. Where an administrator acts, for example, in bad faith, for an
ulterior purpose, takes into account irrelevant considerations or fails to take
into account relevant considerations, or makes an error of law, he or she
acts beyond his or her powers.73
These different grounds of review may be divided into three categories:
• the requirement of authority, which provides that administrators may
only exercise the powers that have been conferred on them by the law
and may not unlawfully delegate them
• the concept of jurisdiction, which provides that administrators must
remain within the procedural and substantive bounds of their power and
may not misconstrue them
• the umbrella ground of abuse of discretion.74
Many, if not most, of the different grounds of review that fall under each of
these categories have been included in section 6(2) of the PAJA.
Section 6(2) provides as follows:
(2) A court or tribunal has the power to judicially
review an administrative action if:
(a) the administrator who took it:
(i) was not authorised to do so by the
empowering provision;
(ii) acted under a delegation of power which
was not authorised by the empowering
provision; or
(iii) was biased or reasonably suspected of
bias;
(b) a mandatory and material procedure or
condition prescribed by an empowering
provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error
of law;
(e) the action was taken:
(i) for a reason not authorised by the
empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were
taken into account or relevant
considerations were not considered;
(iv) because of the unauthorised or
unwarranted dictates of another person
or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself:
(i) contravenes a law or is not authorised by
the empowering provision; or
(ii) is not rationally connected to:
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering
provision;
(cc) the information before the
administrator; or
(dd) the reasons given for it by the
administrator;
(g) the action concerned consists of a failure to take
a decision;
(h) the exercise of the power or the performance of
the function authorised by the empowering
provision, in pursuance of which the
administrative action was purportedly taken, is
so unreasonable that no reasonable person could
have so exercised the power or performed the
function; or
(i) the action is otherwise unconstitutional or
unlawful.
b) The requirement of authority
As mentioned above, the requirement of authority provides that
administrators may only exercise the powers that have been conferred on
them by the law and may not unlawfully delegate them. This requirement is
given expression in section 6(2)(a) of the PAJA which focuses on the
administrator who took the decision. The requirement states that a decision
may be reviewed and set aside if the person exercising the power lacked the
authority to do so, or had power delegated to him or her in an unauthorised
manner, or was biased or was reasonably suspected of being biased.
In SARFU III, the Constitutional Court pointed out that the
circumstances in which a functionary has unlawfully abdicated the power
vested in him or her may be divided into three categories:
• first, where the functionary unlawfully delegates the power to someone
else
• second, where the functionary acts on the instructions of someone else
• third, where the functionary refers the decision to someone else.75
In SARFU III, the Constitutional Court explained the three categories of
abdication as occurring:
where a functionary in whom the power has been vested
delegates that power to someone else. Whether such
delegation is valid depends upon whether the recipient of
the power is lawfully entitled to delegate that power to
someone else. There can be no doubt that when the
Constitution vests power to appoint commissions of
inquiry in the President, the President may not delegate
that authority to a third party. The President himself
must exercise that power. Any delegation to a third party
would be invalid. The second category referred to by
Baxter deals with cases when a functionary vested with a
power does not of his or her own accord decide to
exercise the power, but does so on the instructions of
another. The third category, passing the buck,
contemplates a situation in which a functionary may
refer the decision to someone else.76
If there is an unlawful abdication of power, the decision will be set aside on
review. However, note that section 238(a) of the Constitution contemplates
the inevitability that powers will be delegated as a necessity for the ‘daily
practice of governance’, stating that:
An executive organ of state in any sphere of government
may –
delegate any power or function that is to be exercised
or performed in terms of legislation to any other
executive organ of state, provided the delegation is
consistent with the legislation in terms of which the
power is exercised or the function is performed.
In each case a court will have to determine whether a delegation is lawful or
unlawful. In the case of AAA Investments (Proprietary) Limited v Micro
Finance Regulatory Council and Another, the Constitutional Court set out
some criteria to determine whether a delegation is acceptable, stating that:
Criteria relevant to determining whether a delegation of
a delegated power is acceptable include the following:
the character of the original delegation; the extent of the
delegation of the delegated power; the extent to which
the original delegee continues to review the exercise of
the delegated power; considerations of practicality and
effectiveness; and the identity of the institutions or
persons by whom and to whom power is delegated.77
The exercise of an administrative power in terms of delegated authority will
only be impermissible and unlawful if that delegation does not comply with
the criteria set out above.
Apart from the points set out above, the requirement of authority also
provides that the administrator must comply with any statutory
requirements or preconditions attached to the exercise of the power in
question. It is not surprising, therefore, that section 6(2)(b) of the PAJA
allows for administrative action to be reviewed and set aside if there is no
compliance with a mandatory or material procedure or condition.
c) The concept of jurisdiction
An administrator is required to remain within the substantive and
procedural bounds of his or her powers and may not misconstrue these. If
he or she fails to do so, the decision could be reviewed on the basis that he
or she lacks jurisdiction to exercise that power. The concept of jurisdiction
may be divided into two separate elements, namely a material mistake of
law – where the legal provision on which the decision is based is wrongly
interpreted – and, more controversially, a material mistake of fact. A
material mistake of law occurs when an administrator misinterprets the
law. As a result of this misinterpretation, the administrator misunderstands
the nature of his or her power and, therefore, exercises it improperly.78
This ground of review is referred to in section 6(2)(d) of the PAJA which
simply states that a court may review an administrative action if the action
was materially influenced by an error of law. In so far as this provision is
concerned, it is important to note that it is only decisions based on material
errors of law that will be set aside. Materiality has been defined as follows:
If, for instance, the facts found by the tribunal are such
as to justify its decision even on a correct interpretation
of the statutory criterion, then normally (ie: in the
absence of some other review ground) there would be no
ground for interference.79
Thus, if the same conclusion would have been reached had the decision
maker not erred, the decision will not be set aside as the error is not
material.
A material mistake of fact occurs when an administrator fails to follow
a prescribed procedure or makes a decision in breach of a substantive
condition the administrator was required to fulfil before making the
decision. A material mistake of fact can enable an administrator to inflate
his or her jurisdiction by accumulating powers beyond those that the
empowering legislation confers on him or her. Although this ground is not
explicitly referred to in the PAJA, it is recognised as a ground for judicial
review.80
d) Abuse of discretion
This ground – which tends to overlap with the requirement of
reasonableness – is dealt with in some detail in the PAJA. Section 6(2)(e)
thus provides that administrative action may be reviewed on the grounds
that it was taken:
• for a reason not authorised by the empowering provision
• for an ulterior purpose
• because irrelevant considerations were taken into account and relevant
considerations were not
• because of the unauthorised or unwarranted dictates of another person or
body
• in bad faith or arbitrarily or capriciously.
When a power is granted for one purpose, it cannot be exercised for any
ulterior purpose or objective. As the Constitutional Court held in the
Pharmaceutical Manufacturers case:
Powers are not conferred in the abstract. They are
intended to serve a particular purpose. That purpose can
be discerned from the legislation that is the source of the
power and this ordinarily places limits upon the manner
in which it is exercised. If those limits are transgressed a
court is entitled to intervene and set aside the decision.81
An example of a power being exercised for a purpose for which it was not
granted can be found in the pre-constitutional judgment of Van Eck NO and
Van Rensburg NO v Etna Stores.82 This case dealt with wartime regulations
permitting the administrator to seize food in order to obtain evidence of
suspected violations of the regulations. The administrator acting in terms of
these regulations seized bags of rice as part of a food distribution scheme
and not to obtain evidence of contravention of the regulations. As the
administrator had acted for an improper purpose, the decision was set aside.
a) Introduction
The requirement that an administrative decision must be procedurally fair
places context at the heart of the enquiry. This means that a determination
on whether the administrative decision was procedurally fair will depend on
the facts of the individual case. A court must therefore interpret and apply
the relevant provisions of the PAJA with reference to the factual matrix
within which the administrative decision was made. The right to procedural
fairness in administrative decisions is set out in section 3 of the PAJA.91
Section 3 provides as follows:
(1) Administrative action which materially and
adversely affects the rights or legitimate expectations
of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the
circumstances of each case.
(b) In order to give effect to the right to
procedurally fair administrative action, an
administrator, subject to subsection (4), must
give a person referred to in subsection (1):
(i) adequate notice of the nature and
purpose of the proposed administrative
action;
(ii) a reasonable opportunity to make
representations;
(iii) a clear statement of the administrative
action;
(iv) adequate notice of any right of review or
internal appeal, where applicable; and
(v) adequate notice of the right to request
reasons in terms of section 5.
(3) In order to give effect to the right to procedurally
fair administrative action, an administrator may, in
his or her or its discretion, also give a person
referred to in subsection (1) an opportunity to:
(a) obtain assistance and, in serious or complex
cases, legal representation;
(b) present and dispute information and arguments;
and
(c) appear in person.
(4) (a) If it is reasonable and justifiable in the
circumstances, an administrator may depart
from any of the requirements referred to in
subsection (2).
(b) In determining whether a departure as
contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into
account all relevant factors, including:
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need
to take, the administrative action;
(iii) the likely effect of the administrative
action;
(iv) the urgency of taking the administrative
action or the urgency of the matter; and
(v) the need to promote an efficient
administration and good governance.
(5) Where an administrator is empowered by an
empowering provision to follow a procedure which is
fair but different from the provisions of subsection
(2), the administrator must act in accordance with
that different procedure.
Unfortunately, the formulation of section 3 is not a model of clarity. It is
necessary to understand the complex interplay of its various subsections to
determine its scope and meaning. It is also necessary to reconcile the
section with the definition of administrative action set out in section 1 of the
Act.92 As the provisions set out above indicate, section 3 is divided into
five subsections. Subsection 3(1) lists the requirements that must be met
before the right to procedural fairness can be asserted. Subsection 3(2)
reaffirms the flexibility of the concept and identifies five requirements as
being core features of procedural fairness. Subsection 3(3) recognises that
in certain circumstances a trial-type hearing may be required for the process
to be procedurally fair. Subsection 3(4) allows the administrator to depart
from the requirement of subsection 3(2) if it is reasonable and justifiable to
do so and lists the factors that need to be considered. Finally,
subsection 3(5) is an enabling section which allows an administrator to
follow an alternative procedure provided it is fair. Before turning to
consider these subsections, however, it will be helpful to discuss briefly
what is meant by the concept of procedural fairness.
b) The concept of procedural fairness
The concept of procedural fairness is inherently flexible and its content
depends on the circumstances to which it is applied. Fairness of process –
which we discuss here – must be distinguished from the correctness of the
outcome. When we talk of procedural fairness we are not, in the first
instance, focusing on the outcome, but rather on the quality of the process
which led to the outcome. As De Smith, Woolf and Jowell point out, the
concept ‘ranges from mere consultation at the lower level, upward through
an entitlement to make written representation, to make oral representations,
to a fully-fledged hearing at the other extreme with most of the
characteristics of a judicial trial’.93
What is required in any particular case is incapable of definition in
abstract terms. As Lord Bridge put it:
the so called rules of natural justice are not engraved on
tablets of stone. To use the phrase which better expresses
the underlying concept, what the requirement of fairness
demands when anybody, domestic, administrative or
judicial, has to make a decision which will affect the
rights of individuals depends on the character of the
decision-making body, the kind of decision it has to make
and the statutory or other framework in which it
operates.94
Because of the flexibility of the concept, the administrator has to make a
determination of what is procedurally fair in the specific circumstances. It is
not necessary in every case to afford a person a trial-type hearing before
making a decision that affects that person. In some instances, consultation
or the opportunity to make written representations will suffice. In Doody v
Secretary of State for the Home Department and other Appeals,95 the
House of Lords accurately captured the legal principles regarding
procedural fairness.96 These principles are as follows:
• Where an Act of Parliament confers an administrative power, there is a
presumption that it will be exercised in a manner which is fair in all
circumstances.
• The standards of fairness are not immutable. They may change with the
passage of time, both in general and in their application to decisions of a
particular type.
• The principles of fairness are not applied by rote and are not identical in
every situation. What fairness demands is dependent on the context of
the decision and this is to be taken into account in all its aspects.
• An essential feature of the context is the statute which creates the
discretion as regards both its language and the shape of the legal and
administrative system within which the decision is taken.
• Fairness often requires that a person who may be adversely affected by
the decision has an opportunity to make representations on his or her
own behalf either before the decision is taken with a view to producing a
favourable result or after it is taken with a view to procuring its
modification, or both.
• Since the person affected usually cannot make worthwhile
representations without knowing what factors may weigh against his or
her interests, fairness often requires that the person is informed of the
gist of the case which he or she has to answer.
One of the major concerns about having multiple processes is that it may
impede effective and expeditious decision making. If a regulator has to
afford three sets of hearings to parties at various stages in the decision-
making process, the taking of the ultimate decision will be delayed. This
delay may adversely affect the implementation of policy and cause
frustration.
CRITICAL THINKING
a) Introduction
In our law it is assumed that there will often be great value in giving
reasons for an administrative action. A duty to give reasons entails a duty to
rationalise the decision. As Baxter argues: ‘Reasons therefore help to
structure the exercise of discretion, and the necessity of explaining why a
decision is reached requires one to address one’s mind to the decisional
referents which ought to be taken into account.’ 116 Giving reasons also
satisfies an important desire on the part of the affected individual to know
why a decision was reached. According to Baxter, ‘This is not only fair: it is
also conducive to public confidence in the administrative decision-making
process.’ 117 The most important reason for having to give reasons is that it
allows for rational criticism of a decision. It thus subjects the administration
to public scrutiny and it also provides an important basis for appeal or
review. Lastly, where reasons are provided, this ‘may serve a genuine
educative purpose, for example where an applicant has been refused on
grounds which he is able to correct for the purpose of future
applications’.118
The right to be given reasons for an administrative action is set out in
section 5 of the PAJA. Section 5 provides as follows:
(1) Any person whose rights have been materially and
adversely affected by administrative action and who
has not been given reasons for the action may, within
90 days after the date on which that person became
aware of the action or might reasonably have been
expected to have become aware of the action, request
that the administrator concerned furnish written
reasons for the action.
(2) The administrator to whom the request is made
must, within 90 days after receiving the request, give
that person adequate reasons in writing for the
administrative action.
(3) If an administrator fails to furnish adequate reasons
for an administrative action it must, subject to
subsection (4) and in the absence of proof to the
contrary, be presumed in any proceedings for
judicial review that the administrative action was
taken without good reason.
(4) (a) An administrator may depart from the
requirement to furnish adequate reasons if it is
reasonable and justifiable in the circumstances,
and must forthwith inform the person making
the request of such departure.
(b) In determining whether a departure as
contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into
account all relevant factors, including:
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of
the administrative action concerned;
(iii) the nature and the extent of the
departure;
(iv) the relation between the departure and its
purpose;
(v) the importance of the purpose of the
departure; and
(vi) the need to promote an efficient
administration and good governance.
(5) Where an administrator is empowered by any
empowering provision to follow a procedure which is
fair but different from the provisions of subsection
(2), the administrator may act in accordance with
that different procedure.
(6) (a) In order to promote an efficient administration,
the Minister may, at the request of an
administrator, by notice in the Gazette publish a
list specifying any administrative action or a
group or class of administrative actions in
respect of which the administrator concerned
will automatically furnish reasons to a person
whose rights are adversely affected by such
actions, without such person having to request
reasons in terms of this section.
(b) The Minister must, within 14 days after the
receipt of a request referred to in paragraph (a)
and at the cost of the relevant administrator,
publish such list, as contemplated in that
paragraph.
Section 5 is divided into six subsections. Subsection 1 confers a right to
request reasons within 90 days on any person whose rights have been
materially and adversely affected by an administrative act. This right is
activated on request. If no such request has been made, no reasons need to
be given unless the Minister, acting in terms of subsection 6, has designated
the administrative action as one for which reasons must automatically be
given. Subsection 2 provides that adequate and written reasons must be
given within 90 days after a request has been made. Subsection 3 sets out
some of the consequences that arise if an administrator fails to provide
adequate and written reasons. The circumstances in which an administrator
can depart from the requirement to furnish reasons are set out in
subsection 4. Finally, subsection 5 allows an administrator to follow an
alternative procedure provided it is fair.
b) Rights and legitimate expectations
Like the right to procedural fairness, a person can claim the right to be
given reasons if his or her rights or legitimate expectations have been
materially and adversely affected by administrative action. While it is quite
clear that section 5 applies to a person who already has a right or a
legitimate expectation, it is not so clear whether it applies to a person who
does not already have such a right or expectation. For example, does this
right apply to a person who is applying for a benefit or a licence they do not
already have?
In Transnet Ltd. v Goodman Brothers (Pty) Ltd,119 the SCA had to
consider whether a tenderer had a right to reasons under the interim
Constitution for their tender being unsuccessful. This case was decided
before the PAJA came into effect. Clearly, a person who tenders for a
contract does not have a right to the contract. Transnet argued that the
tenderer was ‘a stranger to the tender process’ and thus not granting the
tender to Goodman Brothers did not adversely affect their rights.120 As a
consequence, there was no obligation to provide reasons for the decision
not to award Goodman Brothers the tender.121
The SCA focused not on the right to the contract, but rather on the right
to lawful and procedurally fair administrative justice. The Court took the
view that if Goodman Brothers were not given reasons, their rights to
lawful and fair administrative action would be adversely affected as there
would be no way of knowing whether these rights had been violated.
Finding that their rights were affected, the Court directed Transnet to
provide reasons for not awarding the tender to Goodman Brothers.122
A case that deals much more directly with the issue is Wessels v Minister
for Justice and Constitutional Development and Others.123 The applicant
was a regional court magistrate who applied for the post of President of the
Regional Court. The Magistrates Commission found four candidates
including the applicant to be appointable and sent this recommendation to
the then Minister of Justice. The Minister appointed magistrate B to the post
and provided no response when the applicant asked for reasons.
The Court rejected the Minister’s contention that the appointment of
magistrates was an executive and not an administrative action. The Minister
argued that as the applicant had applied for a post and was unsuccessful, no
rights were adversely affected and hence there was no obligation to provide
reasons in terms of section 5 of the PAJA. The High Court held that this
would mean that there would be no obligation to provide reasons for any
‘application cases’.124
In rejecting this argument, the Court held that the obligation to provide
reasons would then arise only in narrow and limited circumstances and
would not give effect to the constitutional right to just administrative action.
Such an interpretation, according to the Court, must be avoided.125 The
Court referred to dicta of Kondile AJ in Union of Refugee Women and
Others v Director, Private Security Industry Regulatory Authority and
Others,126 where the Constitutional Court held that a refusal to register a
private security company had an adverse effect on their rights. This was
held in Wessels to mean that a decision to refuse an applicant a licence or a
benefit adversely affects the rights of the applicant. As a consequence,
reasons must be provided.127
In this case, the Court held that the Minister was obliged to provide
reasons and as the Minister did not provide reasons, the Court, acting in
terms of section 5(5) of the PAJA, concluded that the decision was taken
without good reason.128 The consequence of this was that the Court set
aside the appointment of magistrate B.
While reasons must be submitted for both deprivation and determination
cases, the nature, quality and quantity of the reasons submitted may differ
depending on whether a person’s rights are being determined or diminished.
15.3.1 Introduction
Section 1 of the Constitution establishes the principle that the South African
system of government is based on several values, including a multiparty
system of government ‘to ensure accountability, responsiveness and
openness’.134 The right of access to information partly gives effect to this
norm by establishing for everyone the right of access to information that
may potentially affect them. The right of access to information is therefore
one of the most important rights (along with freedom of expression and the
right to vote) contained in the Constitution to ensure the establishment of
the ideal government postulated in the founding values set out in section 1
of the Constitution. In the apartheid era, the state was secretive and often
withheld information from people – something which was, of course, easier
to do in the pre-Internet era. The secretiveness of the apartheid state was
often aimed at keeping citizens in the dark about aspects of its policies and
actions and was therefore profoundly undemocratic.
CRITICAL THINKING
A cautious approach to the invoking of
section 80
In the minority decisions of the Constitutional Court in M &
G Media Ltd, Cameron J cautioned courts against the
exercise of their powers in terms of section 80 of the PAIA.
This case dealt with an access to information request by
the Mail & Guardian newspaper. The request related to a
report on the conduct of the 2002 presidential election in
Zimbabwe compiled by judges who had been sent to the
country by then President Thabo Mbeki. In his separate
judgment, Cameron J disputed the finding of the majority
that when remitting the case to the High Court, that Court
could invoke section 80 of the PAIA to have a judicial peek
at the document. This was because the provision ‘should
be invoked with care’ and ‘should be resorted to only in
exceptional circumstances’.171 The minority proffered two
reasons for this:
First, a cautious approach to section 80 accords with the structure
of the statute. The Constitution creates an entitlement to
information held by government, which the statute has limited
under the Bill of Rights. The structure of PAIA is to stipulate the
process required to claim access, and to enumerate the instances
where it may be refused. The statute creates an over-riding judicial
power to examine the record, but goes on to provide explicitly that
the burden of establishing that an exemption is properly invoked
lies on the party claiming it. If the object of the statute were to
create a novel form of proceeding in access disputes, and invest
courts with inquisitorial powers for ready use in disputes, its
provisions would not have included so plain an imposition of the
burden on the holder of information.172
15.4.1 Introduction
The right of access to court is a fundamental component of the rule of a law
in a constitutional democracy.174 Thus section 34 of the Bill of Rights
states that ‘[e]veryone has the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or forum’.
The inclusion of this section in the Bill of Rights must be seen against
the background of the apartheid-era practice of ousting the jurisdiction of
the courts to enquire into the legal validity of certain laws or conduct. This
practice was in breach of the rule of law which establishes the principle,
inter alia, that anyone may challenge the legality of any law or conduct.175
However, it would only be meaningful to challenge such law or conduct if
this could be done in front of an independent and impartial body like a court
otherwise the right to challenge the legality of law or conduct would be
illusory. Section 34 is therefore closely related to upholding the rule of law.
As the Constitutional Court stated in Lesapo v North West Agricultural
Bank and Another, section 34:
and the access to courts it guarantees for the
adjudication of disputes are a manifestation of a deeper
principle; one that underlies our democratic order. The
effect of this underlying principle on the provision of s 34
is that any constraint upon a person or property shall be
exercised by another only after recourse to a court
recognised in terms of the law of the land. … Respect for
the rule of law is crucial for a defensible and sustainable
democracy. In a modern constitutional State like ours,
there is no room for legislation which, as in this case, is
inimical to a fundamental principle such as that against
self help. This is particularly so when the tendency for
aggrieved persons to take the law into their own hands is
a constant threat.176
Section 34 creates the right of access to courts or another tribunal or forum
but such other tribunal or forum other than a court must be independent and
impartial. It also creates a due process right that requires a fair and a public
hearing. However, it is important to note that there is a threshold that must
be met before this right can be applied, namely that the dispute at issue can,
in fact, be resolved by the application of law.
CRITICAL THINKING
15.5.1 Introduction
The relationship between an employer and an employee is based on a
contract of employment which has traditionally been regulated by the
common law. Unfortunately, the common law principles governing
employment contracts do not recognise the unequal power relations that
exist between employers and employees and the fact that they are not in an
equal bargaining position. This is, in fact, also the case when individuals
enter into contracts with economically powerful institutions, be it banks,
cell phone companies or furniture stores. In addition, these common law
principles also do not recognise the relationships brought about by the rise
of trade unions nor do they facilitate the acquisition of rights through
collective bargaining.195
To address these shortcomings, Parliament has intervened on numerous
occasions and passed legislation aimed at establishing basic conditions of
employment, introducing principles of equity and fairness, and promoting
collective bargaining. As a result of these interventions, the employment
relationship today is regulated largely by legislation and the rights and
obligations acquired through collective bargaining.
Among the most important statutes regulating the employment
relationship are the Labour Relations Act (LRA),196 the Basic Conditions
of Employment Act (BCEA) 197 and the Employment Equity Act
(EEA).198 These Acts all aim to give effect to various aspects of the rights
guaranteed in section 23 of the Constitution which provides that:
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes
of a trade union; and
(c) to strike.
(3) Every employer has the right –
(a) to form and join an employers’ organization;
and
(b) to participate in the activities and programmes
of an employers’ organization.
(4) Every trade union and every employers’
organization has the right –
(a) to determine its own administration,
programmes and activities;
(b) to organize; and
(c) to form and join a federation.
(5) Every trade union, employers’ organization and
employer has the right to engage in collective
bargaining. National legislation may be enacted to
regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
(6) National legislation may recognize union security
arrangements contained in collective agreements. To
the extent that the legislation may limit a right in this
Chapter, the limitation must comply with
section 36(1).
As is the case with other rights, the principle of subsidiarity requires that
litigants rely first on the provisions of the various Acts that give effect to
the rights contained in the Constitution before they can rely on the rights
contained in the Constitution itself.
CRITICAL THINKING
While it is fairly clear what is meant by the terms ‘employer’, ‘trade union’
and ‘employers organisation’, it is less clear what is meant by the term
‘worker’. The Constitutional Court, however, considered the meaning of the
term in its judgment in South African National Defence Union v Minister of
Defence.205
In this case, the applicant applied for an order declaring section 126B(1)
of the Defence Act 206 to be unconstitutional and invalid on the grounds
that it infringed section 23(2) of the Constitution. Section 126B(1) of the
Defence Act prohibited permanent members of the South African National
Defence Force (SANDF) from joining or becoming members of a trade
union. Section 23(2) of the Constitution provides that that ‘[e]very worker
has the right (a) to form and join a trade union; (b) to participate in the
activities and programmes of a trade union, and (c) to strike’.
Given that section 23(2) of the Constitution applies only to workers, the
first issue the Constitutional Court had to consider was whether the word
‘worker’ was wide enough to include permanent members of the SANDF.
The Court held that it was.
In arriving at this decision, the Constitutional Court began by explaining
that permanent members of the SANDF receive many of the same benefits
as other employees, for example a salary, leave, medical and transport
benefits, and certain mess expenses.207 In addition, the Constitutional
Court explained further, the International Labour Organisation considers
members of the armed forces to be workers for the purposes of the
Convention on the Freedom of Association and Protection of the Right to
Organise 87 of 1948 and the Convention on the Right to Organise and
Collective Bargaining 98 of 1949, both of which South Africa has
ratified.208
Even though permanent members of the SANDF are not employees in
the full contractual sense of the word, the Constitutional Court went on to
conclude, the factors set out above indicated that the relationship between
permanent members of the SANDF and the SANDF itself was ‘akin to an
employment relationship’ and ‘in many respects mirrors those of people
employed under a contract of employment’.209 Although members of the
SANDF may be thought to be in a special kind of situation because there is
a requirement that members of the armed forces must adhere to strict
discipline,210 the term ‘worker’ nevertheless had to be given a generous
interpretation. The need for strict discipline will not necessarily be
undermined by holding that members of the SANDF constitute ‘workers’
for the purpose of section 23(2) ‘because in appropriate circumstances
rights may be limited’.211 After coming to the conclusion that the word
‘worker’ was wide enough to include permanent members of the SANDF,
the Constitutional Court went on to find that section 126B(1) of the
Defence Act did infringe section 23(2) of the Constitution.
A number of important consequences flow from the approach adopted by
the Constitutional Court in this case. Among these are the following:
• First, section 23 of the Constitution does not apply only to persons who
are in an employment relationship, but also to persons who are in a
relationship that is ‘akin’ to an employment relationship. This means that
neither the existence of a contract nor the category of contract is strictly
necessary for a person who is performing work for another person to be
defined as a ‘worker’ for the purposes of section 23 of the Constitution.
• Second, the extension of labour rights beyond the limits of a contract of
employment is in keeping with the different forms of employment that
may be found in a modern economy. Among these are part-time
employees, temporary employees, casual employees, persons employed
through employment agencies, home workers and so on. These sorts of
employees are often vulnerable to exploitation because the nature of their
employment makes it difficult for them to form and join trade unions and
to bargain collectively.
• Third, while section 23 of the Constitution applies to persons who are in
an employment relationship or a relationship akin to an employment
relationship, it does not apply to everyone who works. This is because
not everyone who works is an employee or is akin to an employee.
People who own or work in their own businesses, such as independent
contractors, partners and self-employed people, for example, are not
employees nor are they akin to employees.
CRITICAL THINKING
15.5.7.1 Introduction
The right to strike, as well as the organisational rights of unions, must be
viewed in the light of the broader aims of unions and their members,
namely to engage in collective bargaining to improve the working
conditions of workers. The assumption is that workers will be more
powerful if they bargain collectively than if they bargain as individuals,
thus levelling the playing field. Section 23(5) of the Constitution provides
that ‘[e]very trade union, employers’ organization and employer has the
right to engage in collective bargaining. National legislation may be enacted
to regulate collective bargaining. To the extent that the legislation may limit
a right in this Chapter, the limitation must comply with section 36(1)’.
Grogan describes collective bargaining as the process:
by which employers and organised groups of employees
seek to reconcile their conflicting goals through mutual
accommodation. The dynamic of collective bargaining is
demand and concession; its objective is agreement.
Unlike mere consultation, therefore, collective
bargaining assumes willingness on each side not only to
listen and to consider the representations of the other but
also to abandon fixed positions where possible in order to
find common ground.275
Collective bargaining works best when the parties have relatively equal
bargaining power and when this happens in an atmosphere of mutual trust
and respect.
SUMMARY
1 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 645.
2 See, for example, Dyzenhaus, D (1991) Hard Cases in Wicked Legal Systems: South African
Law in the Perspective of Legal Philosophy.
3 Baxter, L (1984) Administrative Law 3.
4 S 24 of the interim Constitution provided that
[e]very person shall have the right to –
(a) lawful administrative action where any of his or her rights or interests is
affected or threatened;
(b) procedurally fair administrative action where any of his or her legitimate
expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affects any
of his or her rights or interests unless the reasons for such action have been
made public; and
(d) administrative action which is justifiable in relation to the reasons given for it
where any of his or her rights is affected or threatened.
5 S 33(1) of the Constitution.
6 S 33(2) of the Constitution.
7 Kohn, L and Corder, H (2013) ‘Judicial regulation of administrative action’ International
Encyclopaedia of Laws available at http://www.ielaws.com/index.htm.
8 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 37.
9 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000)
para 45.
10 Kohn and Corder (2013).
11 Plasket, C (2007) Post-1994 administrative law in South Africa: The Constitution, the
Promotion of Administrative Justice Act 3 of 2000 and the common law Speculum Juris
21(1):25–40 at 25.
12 S 33(3) of the Constitution.
13 Act 3 of 2000.
14 Pharmaceutical Manufacturers para 33.
15 Pharmaceutical Manufacturers para 44.
16 (CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC)
(30 September 2005) paras 96–6. See also Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) para 22; Walele v City of Cape Town
(CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June
2008) para 29.
17 New Clicks SA paras 95–6.
18 Currie and De Waal (2013) 649.
19 Currie and De Waal (2013) 650–1.
20 See, for example, Ismail v New National Party in the Western Cape and Others (2001) JOL
8206 (C).
21 See Currie and De Waal (2013) 651.
22 See, for example, Bato Star Fishing para 22 where O’Regan stated that:
The common law informs the provisions of PAJA and the Constitution, and derives
its force from the latter. The extent to which the common law remains relevant to
administrative review will have to be developed on a case-by-case basis as the
courts interpret and apply the provisions of PAJA and the Constitution.
23 Act 4 of 2000.
24 Kaunda and Others v President of the Republic of South Africa (CCT 23/04) [2004] ZACC 5;
2005 (4) SA 235 (CC); 2004 (10) BCLR 1009 (CC) (4 August 2004) para 244.
25 S 79(1) of the Constitution provides that ‘[t]he President must either assent to and sign a Bill
passed in terms of this Chapter or, if the President has reservations about the constitutionality
of the Bill, refer it back to the National Assembly for reconsideration’.
26 S 91(2) of the Constitution provides that ‘[t]he President appoints the Deputy President and
Ministers, assigns their powers and functions, and may dismiss them’.
27 S v Dodo CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001).
28 S 86(2) of the Constitution provides that ‘[t]he Chief Justice must preside over the election of
the President or designate another judge to do so. The procedure set out in Part A of Schedule 3
applies to the election of the President’.
29 S 84(2)(f) of the Constitution provides that ‘[t]he President is responsible for appointing
commissions of enquiry’. See also President of the Republic of South Africa and Others v
South African Rugby Football Union and Others (SARFU III) (CCT16/98) [1999] ZACC 11;
2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
30 Act 8 of 1947.
31 S 1(1)(a) of the Commissions Act. See also SARFU III.
32 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
33 SARFU III para 141.
34 SARFU III para 142.
35 SARFU III para 143.
36 SARFU III para 147.
37 SARFU III para 148.
38 (887/2010) [2011] ZASCA 221; 2012 (2) SA 151 (SCA); [2012] 1 All SA 412 (SCA)
(30 November 2011).
39 Democratic Alliance v eThekwini Municipality para 21.
40 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC)
(5 October 2012) paras 41–2. The quote from O’Regan J is from Brink v Kitshoff NO
(CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 35.
41 (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007).
42 Masetlha para 77.
43 Masetlha para 81.
44 Masetlha para 77.
45 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5)
BCLR 391 (CC) (23 February 2010).
46 Albutt para 69.
47 Democratic Alliance v President of South Africa para 34.
48 Democratic Alliance v President of South Africa para 36.
49 Democratic Alliance v President of South Africa para 39.
50 Hoexter, C ‘The rule of law and the principle of legality in South African administrative law
today’ in Carnelley, M and Hoctor, S (eds) (2011) Law, Order and Liberty: Essays in Honour
of Tony Matthews 61.
51 Price, A (2013) The evolution of the rule of law South African Law Journal 130:649 at 654–5.
52 The powers and functions referred to in paras (aa) to (ii) are as follows:
(aa) the executive powers or functions of the National Executive, including the
powers or functions referred to in section 79(1) and (4), 84(2)(a), (b), (c), (d),
(f), (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93,
97, 98, 99 and 100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive, including the
powers or functions referred to in section 121(1) and (2), 125(2)(d), (e) and (f),
126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature or a municipal
council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166
of the Constitution or of a Special Tribunal established under section 2 of the
Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of
1996), and the judicial functions of a traditional leader under customary law
or any other law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the nomination, selection, or
appointment of a judicial officer or any other person, by the Judicial Service
Commission in terms of any law;
(hh) any decision taken, or failure to take a decision, in terms of any provision of
the Promotion of Access to Information Act, 2000; or
(ii) any decision taken, or failure to take a decision, in terms of section 4(1).
53 The concept of a decision is defined in s 1 of the PAJA as follows:
‘decision’ means any decision of an administrative nature made, proposed to be
made made, or required to be made, as the case may be, under an empowering
provision, including a decision relating to:
(a) making, suspending, revoking or refusing to make an order, award or
determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other
instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative nature, and a
reference to a failure to take a decision must be construed accordingly.
54 S 1.
55 AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another
(CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July
2006) para 40.
56 S 239 of the Constitution states:
(2) ‘organ of state’ means –
(a) any department of state or administration in the national, provincial or
local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of
any legislation,
but does not include a court or a judicial officer.
57 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June
2001) para 22.
58 Langeberg Municipality para 27.
59 (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October
2009).
60 Joseph para 26. See also the SCA judgment in Grey’s Marine Hout Bay (Pty) Ltd and Others v
Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA) para 23.
61 Joseph para 31.
62 Joseph para 42. See also Premier, Province of Mpumalanga and Another v Executive
Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal
(CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998)
para 41.
63 Joseph para 26.
64 Joseph para 26.
65 Act 32 of 2000.
66 Joseph paras 33–9.
67 Joseph para 42.
68 Joseph para 46.
69 Joseph para 30.
70 Joseph para 59.
71 Joseph para 60.
72 Hoexter, C (2007) Administrative Law 224.
73 Klaaren, J and Penflod, G ‘Just administrative action’ in Woolman, S and Bishop, M (eds)
(2013) Constitutional Law of South Africa 2nd ed rev service 5 63.77.
74 Klaaren and Penflod (2013) 63.77.
75 SARFU III para 40.
76 SARFU III para 40.
77 (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July
2006) para 127.
78 See Kohn and Corder (2013).
79 Hira and Another v Booysens and Another 1992 (4) SA 69 (A) 70E.
80 See Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) as well as,
generally, Kohn and Corder (2013).
81 Pharmaceutical Manufacturers para 76.
82 1947 (2) SA 984 (A).
83 Hoexter (2007) 293.
84 See Kohn and Corder (2013) 8. See also Hoexter, C (2004) The principle of legality in South
African administrative law Macquarie Law Journal 3(4):165–86 at 172.
85 1988 (3) SA 132 (A) 152A–D.
86 Union Government (Minister of Mines and Industries) v Union Steel Corporation (South
Africa) Ltd 1928 AD 220 at 236; National Transport Commission and Another v Chetty’s
Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) 735; The Administrator, Transvaal and The
Firs Investments (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56 (A) 79–80;
Johannesburg City Council v The Administrator, Transvaal and Mayofis 1971 (1) SA 87 (A)
96A–D. See, however, the minority judgment of Jansen JA in Theron en Andere v Ring van
Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A) 14–21.
87 Bato Star Fishing para 43.
88 (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March
2004).
89 Bato Star Fishing para 44.
90 Bato Star Fishing para 45.
91 For a discussion on procedural fairness that precedes the adoption of the PAJA, see the
Constitutional Court judgments in Bel Porto School Governing Body and Others v Premier of
the Western Cape Province and Another (CCT58/00) [2002] ZACC 2; 2002 (3) SA 265; 2002
(9) BCLR 891 (21 February 2002); Premier, Mpumalanga.
92 See Currie and De Waal (2013) 675.
93 De Smith, SA, Woolf, H and Jowell, JL (1995) Judicial Review of Administrative Action 431.
94 Lloyd v Mcmahon [1987] AC 625 at 702.
95 [1993] 3 All Er 92 (HL) at 106.
96 These comments have been quoted with approval by our courts in Du Preez and Another v
Truth and Reconciliation Commission 1997 (3) SA 204 (A) and Chairman: Board of Tariffs
and Trade and Others v Brenco Incorporated (285/99) [2001] ZASCA 67 (25 May 2001).
97 (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998).
98 Premier, Mpumalanga para 39.
99 Premier, Mpumalanga para 41.
100 This conflict has been said to have been caused by a drafting error. See Currie and De Waal
(2013) 675.
101 Joseph para 42.
102 Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 All ER
935 (HL).
103 (79/2001) [2003] ZASCA 11 (14 March 2003) para 20.
104 (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June
2008) para 14.
105 Walele para 37.
106 Walele para 38.
107 Hoexter (2007) 334.
108 Hoexter (2007) 337.
109 Currie and De Waal (2013) 677.
110 Premier, Mpumalanga para 41.
111 Joseph paras 62–3.
112 (1) (384/2000) [2002] ZASCA 44 (17 May 2002).
113 Currie and De Waal (2013) 680.
114 Currie and De Waal (2013) 681.
115 Currie and De Waal (2013) 681.
116 Baxter (1984) 228.
117 Baxter (1984) 228.
118 Baxter (1984) 228. See also Transnet Ltd. v Goodman Brothers (Pty) Ltd (373/98) [2000]
ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000) para 5.
119 (373/98) [2000] ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000).
120 Goodman Brothers para 9.
121 Goodman Brothers para 10.
122 Goodman Brothers para 5.
123 (594/09) [2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP) (2 June 2009).
124 Wessels para 10.
125 Wessels para 27.
126 (CCT 39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC); (2007) 28 ILJ 537 (CC)
(12 December 2006).
127 Wessels 15.
128 Wessels 26.
129 De Smith, Woolf and Jowell (1995) 354.
130 (32/2003, 40/2003) [2003] ZASCA 46; [2003] 2 All SA 616 (SCA) (16 May 2003).
131 Ansett Transport Industries (Operations) Pty Ltd and Another v Wraith and Others (1983) 48
ALR 500 at 507 (lines 23–41).
132 Phambili Fisheries para 40.
133 De Ville, J (2005) Judicial Review of Administrative Action in South Africa 294.
134 S 1(d).
135 President of the Republic of South Africa and Others v M & G Media Ltd (CCT 03/11) [2011]
ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011) para 10.
136 Currie and De Waal (2013) 692.
137 Currie and De Waal (2013) 692.
138 M & G Media Ltd para 10.
139 (CCT 25/09) [2009] ZACC 21; 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) (13 August
2009) paras 62–3.
140 Truth and Reconciliation Commission of South Africa (1998) Report: Volume 1 Chapter 8 The
Destruction of Records para 24; Volume 2 Chapter 2 The State Outside SA Between 1960 and
1990 paras 10–19.
141 Act 2 of 2000.
142 For an overview of the application of the PAIA, see Holness, D ‘The right of access to
information’ in Govindjee, A and Vrancken, P (2009) Introduction to Human Rights Law 192–
6.
143 New Clicks SA para 437; Walele para 29.
144 See s 9 of the PAIA.
145 Currie and De Waal (2013) 696.
146 Currie and De Waal (2013) 696.
147 Currie and De Waal (2013) 697.
148 M & G Media Ltd para 9.
149 S 1 of the PAIA defines a public body as:
(a) any department of state or administration in the national or provincial sphere of
government or any municipality in the local sphere of government; or
(b) any other functionary or institution when –
(i) exercising a power or performing a duty in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation.
150 S 11(1) of the PAIA.
151 S 1 of the PAIA defines a private body as:
(a) a natural person who carries or has carried on any trade, business or
profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession;
or
(c) any former or existing juristic person, but excludes a public body.
152 S 50 of the PAIA.
153 Unitas Hospital v Van Wyk and Another (231/05) [2006] ZASCA 34; 2006 (4) SA 436 (SCA);
[2006] 4 All SA 231 (SCA) (27 March 2006) para 17 where the SCA stated:
The threshold requirement of ‘assistance’ has thus been established. If the
requester cannot show that the information will be of assistance for the stated
purpose, access to that information will be denied. Self-evidently, however, mere
compliance with the threshold requirement of ‘assistance’ will not be enough.
154 Clutchco (Pty) Ltd v Davis (035/04) [2005] ZASCA 16; [2005] 2 All SA 225 (SCA); 2005 (3)
SA 486 (SCA) (24 March 2005) para 13.
155 Currie and De Waal (2013) 705.
156 South African Human Rights Commission (2010) Golden Key Awards Report on Access to
Information in South Africa (with the Open Democracy Advice Centre) available at
http://www.opendemocracy.org.za/wp-content/uploads/2010/10/2010-GKA-REPORT.pdf.
157 Golden Key Awards Report 9 South African Human Rights Commission (2010).
158 Clutchco para 11.
159 S 34 (public bodies) and s 63 (private bodies) of the PAIA. The sections contain exceptions
which provide mandatory protection of privacy of third parties and which would prevent a
body from granting access to the requested information.
160 S 35 of the PAIA.
161 S 36 (public bodies) and s 64 (private bodies) of the PAIA. These sections contain exceptions
which provide mandatory protection of commercial information of third parties and which
would prevent a body from granting access to the requested information.
162 S 37 (public body) and s 65 (private body) of the PAIA.
163 S 38 (public body) and s 66 (private body) of the PAIA.
164 S 40 (public body) and s 67 (private body) of the PAIA.
165 S 42 of the PAIA.
166 S 46 (public body) and s 70 (private body) of the PAIA.
167 (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November
2011).
168 M & G Media Ltd para 41.
169 M & G Media Ltd para 42.
170 M & G Media Ltd paras 44–7.
171 M & G Media Ltd para 124.
172 M & G Media Ltd para 125.
173 M & G Media Ltd para 128.
174 Currie and De Waal (2013) 711.
175 De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785; 1998 (7)
BCLR 779 (28 May 1998) paras 46–7.
176 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999)
paras 16–17.
177 Currie and De Waal (2013) 712.
178 National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277
(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA)
(12 January 2009) para 18.
179 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012).
180 Ramakatsa para 6.
181 Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v
National Director of Public Prosecutions and Others (CCT 89/07, CCT 91/07) [2008] ZACC
13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (31 July 2008)
paras 60–2; President of the Republic of South Africa and Others v South African Rugby
Football Union and Others - Judgment on recusal application (SARFU II) (CCT16/98) [1999]
ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) para 29.
182 Currie and De Waal (2013) 713.
183 (21990/2012) [2012] ZAWCHC 189; 2013 (4) SA 243 (WCC) (22 November 2012).
184 Mazibuko 256E–H.
185 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 11; Executive Council of the
Western Cape Legislature and Others v President of the Republic of South Africa and Others
(CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
paras 15–17; Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
(CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)
para 10; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR
293; 1996 (2) SA 464 (9 February 1996) para 29; Dormehl v Minister of Justice and Others
(CCT10/00) [2000] ZACC 4; 2000 (2) SA 825; 2000 (5) BCLR 471 (CC) (14 April 2000)
para 4.
186 Besserglik v Minister of Trade Industry and Tourism and Others (Minister of Justice
intervening) (CCT34/95) [1996] ZACC 8; 1996 (6) BCLR 745; 1996 (4) SA 331 (14 May
1996).
187 Van der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4; 2002 (4) SA 317; 2002
(5) BCLR 454 (11 April 2002) para 4.
188 (37904/2013) [2013] ZAGPPHC 292 (14 October 2013).
189 Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another
(CCT 19/07) [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) (2 June 2008)
para 84.
190 Lesapo para 11; Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A)
511H–512A; Nino Bonino v De Lange 1906 TS 120 at 122.
191 Lesapho para 18.
192 Magidiwana paras 27–8.
193 Magidiwana paras 27–8.
194 Magidiwana para 37.
195 Le Roux, R ‘Employment’ in Du Bois, F (ed) (2007) Wille’s Principles of South African Law
9th ed 924–5.
196 Act 66 of 1995.
197 Act 75 of 1997.
198 Act 55 of 1998.
199 Grogan, J (2009) Workplace Law 10th ed 6.
200 (CCT14/02) [2002] ZACC 30; 2003 (2) BCLR 182; 2003 (3) SA 513 (CC); [2003] 2 BLLR
103 (CC) (13 December 2002) para 13.
201 NUMSA para 13.
202 Cheadle, H ‘Labour relations’ in Cheadle, MH, Davis, DM and Haysom, NRL (2013) South
African Constitutional Law: The Bill of Rights 2nd ed 18.4–18.10.
203 (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002).
204 NEHAWU para 39.
205 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
206 Act 44 of 1957.
207 South African National Defence Union paras 23–4.
208 South African National Defence Union paras 26–7.
209 South African National Defence Union paras 24 and 28.
210 See, for example, R v Genereux (1992) 88 DLR (4th) 110 (SCC) 156–7 where a minority of the
Canadian Supreme Court advanced this argument against the inclusion of members of armed
forces in the protection of labour rights.
211 South African National Defence Union v Minister of Defence para 29.
212 Cheadle (2013) 18.10.
213 Cheadle (2013) 18.10.
214 Cheadle (2013) 18.4–18.10. S 200A(1) of the LRA provides that
until the contrary is proved, a person who works for, or renders services to, any
other person is presumed, regardless of the form of the contract, to be an employee,
if any one or more of the following factors are present:
(a) the manner in which the person works is subject to the control or direction of
another person;
(b) the person’s hours of work are subject to the control or direction of another
person;
(c) in the case of a person who works for an organisation, the person forms part of
that organisation;
(d) the person has worked for that other person for an average of at least 40 hours
per month over the last three months;
(e) the person is economically dependent on the other person for whom he or she
works or renders services;
(f) the person is provided with tools of trade or work equipment by the other
person; or
(g) the person only works for or renders services to one person.
Section 200A(2) goes on to provide that subsection (1) does not apply to any person who earns
in excess of the amount determined by the Minister in terms of section 6(3) of the BCEA.
215 2010 (4) SA 383 (LAC).
216 Kylie paras 16–22.
217 Kylie paras 25–7.
218 Kylie paras 32–7.
219 Kylie paras 40–6.
220 Kylie paras 52–3.
221 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
222 Jordan para 16.
223 South Africa Commission of Inquiry into Labour Legislation Wiehahn, NE (1980) Report of
the Commission of Inquiry into Labour Legislation Republic of South Africa, Department of
Manpower Utilisation.
224 Act 28 of 1956.
225 S 1 of the 1956 LRA.
226 S 1 of the 1956 LRA.
227 Van Niekerk, A (2012) Law@Work 2nd ed 39.
228 Van Niekerk, A (2012) Law@Work 2nd ed 39.
229 S 186(1) of the LRA provides that
[d]ismissal means that –
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of
employment on the same or similar terms but the employer offered to renew it
on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she –
(i) took maternity leave in terms of any law, collective agreement or her
contract of employment;
(d) an employer who dismissed a number of employees for the same or similar
reasons has offered to re-employ one or more of them but has refused to re-
employ another; or
(e) an employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable for the
employee; or
(f) an employee terminated a contract of employment with or without notice
because the new employer, after a transfer in terms of section 197 or
section 197A, provided the employee with conditions or circumstances at work
that are substantially less favourable to the employee than those provided by the
old employer.
230 S 188(1) of the LRA.
231 Items 8 and 9 of the Code of Good Practice: Dismissals.
232 Items 10 and 11 of the Code of Good Practice: Dismissals.
233 Items 10 and 11 of the Code of Good Practice: Dismissals.
234 GN 1517 in Government Gazette 20254 of 16 July 1999.
235 S 188(1)(b) of the LRA.
236 Du Toit, D et al (2006) Labour Relations Law: A Comprehensive Guide 5th ed 403–6.
237 NEHAWU para 35.
238 NEHAWU para 38.
239 NEHAWU para 40.
240 (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28
ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (5 October 2007).
241 Sidumo para 74.
242 Sidumo paras 38 and 65.
243 South African National Defence Union para 32.
244 South African National Defence Union para 33.
245 South African National Defence Union para 35.
246 South African National Defence Union para 36.
247 South African National Defence Union para 36.
248 South African Government News Agency (2009, August) Address by Defence and Military
Veterans Minister, Lindiwe Sisulu, on the Illegal March by SANDF Members to the Union
Buildings available at http://www.sanews.gov.sa/south-africa/address-defence-and-military-
veterans-minister-lindiwe-sisulu-illegal-march-sandu.
249 S 213 of the LRA.
250 S 5 of the LRA provides that:
(1) No person may discriminate against an employee for exercising any right
conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no person
may do, or threaten to do, any of the following –
(a) require an employee or a person seeking employment –
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking employment from exercising any
right conferred by this Act or from participating in any proceedings in
terms of this Act; or
(c) prejudice an employee or a person seeking employment because of past,
present or anticipated –
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation of trade unions or
establishing a workplace forum;
(iii) participation in the lawful activities of a trade union, federation of
trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
(v) disclosure of information that the employee is lawfully entitled or
required to give to another person;
(vi) xercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or a person
seeking employment in exchange for that person not exercising any right
conferred by this Act or not participating in any proceedings in terms of this
Act. However, nothing in this section precludes the parties to a dispute from
concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits any
provision of section 4, or this section, is invalid, unless the contractual provision
is permitted by this Act.
251 S 7 of the LRA provides that:
7. (1) No person may discriminate against an employer for exercising any right
conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no
person may do, or threaten to do, any of the following –
(a) require an employer –
(i) not to be a member of an employers’ organisation;
(ii) not to become a member of an employers’ organisation; or
(iii) to give up membership of an employers’ organisation;
(b) prevent an employer from exercising any right conferred by this Act or
from participating in any proceedings in terms of this Act; or
(c) prejudice an employer because of past, present or anticipated –
(i) membership of an employers’ organisation;
(ii) participation in forming an employers’ organisation or a
federation of employers’ organisations;
(iii) participation in the lawful activities of an employers’ organisation
or a federation of employers’ organisations;
(iv) disclosure of information that the employer is lawfully entitled or
required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in
exchange for that employer not exercising any right conferred by this Act or
not participating in any proceedings in terms of this Act. However, nothing
in this section precludes the parties to a dispute from concluding an
agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits
any provision of section 6, or this section, is invalid, unless the contractual
provision is permitted by this Act.
252 S 26(1) of the LRA. S 26 contains a number of safeguards aimed at promoting its constitutional
validity.
253 S 25(1) of the LRA. Like s 26, s 25 also contains a number of safeguards aimed at promoting
its constitutional validity.
254 Du Toit (2006) 191.
255 Van Niekerk (2012) 349.
256 Currie and De Waal (2013) 486.
257 S 12 of the LRA.
258 S 13 of the LRA.
259 S 14 of the LRA.
260 S 15 of the LRA.
261 S 16 of the LRA.
262 NUMSA paras 34–5.
263 NUMSA para 13.
264 S 64(1)(d) of the LRA.
265 (CCT128/11) [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177 (CC); [2012] 12
BLLR 1193 (CC); (2012) 33 ILJ 2549 (CC) (21 September 2012).
266 SATAWU paras 10–11.
267 SATAWU para 54.
268 SATAWU para 53.
269 SATAWU para 86.
270 SATAWU para 92.
271 SATAWU para 17.
272 SATAWU para 27.
273 SATAWU para 34.
274 See De Vos, P (2012, 25 September) Sharp divisions on the Constitutional Court about the
right to strike Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/sharp-divisions-on-the-constitutional-court-about-the-
right-to-strike/.
275 Grogan (2009) 343.
276 S 29 of the LRA.
277 Van Niekerk (2012) 370.
278 Ministerial Legal Task Team (1995, January) Explanatory Memorandum Industrial Law
Journal 16(2):278–336 at 292.
279 Ministerial Legal Task Team (1995) 292.
280 Van Niekerk (2012) 371.
281 S 28 of the LRA.
282 S 31 of the LRA.
283 S 32 of the LRA.
284 S 32 of the LRA.
285 Cheadle (2013) 18.23–18.24.
286 Cheadle (2013) 18.24–18.25.
287 (CCT23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6
September 1996) paras 64–6.
288 First Certification paras 64–6.
289 First Certification paras 64–6.
290 Cheadle (2013) 18.23.
291 Cheadle (2013) 18.26.
292 Cheadle (2013) 18.26.
293 2007 (1) SA 402 (SCA).
294 South African National Defence Union v Minister of Defence (II) (CCT65/06) [2007] ZACC
10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007) 28 ILJ 1909
(CC) (30 May 2007) para 48.
295 South African National Defence Union (II) para 55.
296 South African National Defence Union v Minister of Defence (I) CCT27/98) [1999] ZACC 7;
1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
297 South African National Defence Union v Minister of Defence and Others (SCA) para 5.
298 South African National Defence Union (SCA) para 6.
299 South African National Defence Union (SCA) paras 7–11.
300 South African National Defence Union (SCA) paras 14–19.
301 South African National Defence Union (SCA) para 25.
302 South African National Defence Union (II) para 51.
303 South African National Defence Union (II) para 52.
304 South African National Defence Union (II) para 56.
305 South African National Defence Union (II) para 55.
Socio-economic rights
16.1 Introduction
16.2 Socio-economic rights in the Constitution and related
constitutional provisions
16.3 Socio-economic rights and other areas of the law
16.4 The interpretation of socio-economic rights
16.4.1 Introduction
16.4.2 Duties: section 7(2)
16.4.2.1 The duty to respect, protect, promote and fulfil
16.4.2.1.1 Introduction
16.4.2.1.2 The duty to respect
16.4.2.1.3 The duty to protect
16.4.2.1.4 The duty to promote
16.4.2.1.5 The duty to fulfil
16.4.2.2 Negative and positive duties
16.4.3 The role of international and foreign law: section 39(1)
16.5 Socio-economic rights and the legislature and executive
16.5.1 Introduction
16.5.2 Translation through legislation
16.5.3 Translation through executive and administrative action
16.6 Socio-economic rights and the courts
16.6.1 Introduction
16.6.2 Modes of adjudication: sections 8 and 39(2)
16.6.3 Constraint in the adjudication of socio-economic rights
claims
16.6.3.1 Separation of powers concerns
16.6.3.2 The Constitutional Court’s approach to separation of
powers concerns
16.6.3.3 Factors influencing separation of powers concerns
16.6.3.3.1 Introduction
16.6.3.3.2 Where the legislature, executive or state
administration has defined the legal duties, courts are more
likely to intervene
16.6.3.3.3 Negative rather than positive duties
16.7 Different forms of judicial enforcement of socio-
economic rights
16.7.1 The duty to respect
16.7.1.1 Introduction
16.7.1.2 The duty to refrain from interfering with people’s
existing enjoyment of socio-economic rights
16.7.1.3 The duty to mitigate interferences with people’s
existing enjoyment of socio-economic rights when such
interferences are unavoidable
16.7.1.4 The duty to refrain from impairing people’s access to
socio-economic rights
16.7.2 The duty to protect
16.7.2.1 Introduction
16.7.2.2 Legislative and executive measures
16.7.2.3 Judicial measures
16.7.3 The duty to promote and fulfil
16.7.3.1 Introduction
16.7.3.2 Reasonableness review
16.7.3.2.1 Introduction
16.7.3.2.2 A means-end effectiveness test
16.7.3.3 The elements of reasonableness review
16.7.3.3.1 Introduction
16.7.3.3.2 The state must have a plan
16.7.3.3.3 The plan must be reasonable
16.7.3.3.4 The state must continually review its plan
16.7.3.4 Meaningful engagement
16.7.3.5 Within available resources
16.8 Remedies in socio-economic rights cases
Summary
16.1 Introduction
As the Constitutional Court has pointed out, South Africa is a society in
which there are great disparities in wealth:
Millions of people are living in deplorable conditions and
in great poverty. There is a high level of unemployment,
inadequate social security, and many do not have access
to clean water or to adequate health services. These
conditions already existed when the Constitution was
adopted and a commitment to address them, and to
transform our society into one in which there will be
human dignity, freedom and equality, lies at the heart of
our new constitutional order. For as long as these
conditions continue to exist that aspiration will have a
hollow ring.1
The constitutional commitment to address these conditions is partly
reflected in various provisions of the Bill of Rights, including several
provisions that guarantee the social and economic rights of all. The
inclusion of so-called ‘socio-economic rights’ in the Bill of Rights is one of
the great innovations found in South Africa’s 1996 Constitution. Socio-
economic rights are rights to the conditions and resources necessary for the
material well-being of people. In other words, socio-economic rights are
rights to things such as food, water, housing, health care, social assistance,
education and a safe, clean and healthy environment. As we pointed out in
chapter 1, the inclusion of socio-economic rights in the Constitution
provides evidence of the fact that it is a transformative Constitution that
engages with the social and economic realities in South Africa.
In this chapter, we survey the legal nature and practical implications of
the socio-economic rights in South Africa’s Constitution. We describe the
rights in the abstract and then investigate the different ways in which they
operate as legal entitlements imposing concomitant legal duties on the state
and others.
16.4.1 Introduction
The interpretation of socio-economic rights is conditioned by two generally
applicable provisions of the Constitution: section 7(2) and section 39(1). It
is important to understand how these provisions influence the interpretation
of the social and economic rights.
CRITICAL THINKING
16.5.1 Introduction
As is the case with all constitutional rights, the translation of constitutional
socio-economic rights from ‘background moral claims’ 45 into enforceable
legal rights occurs through a variety of ‘law-making processes and
institutions’.46 Not only the courts, but at least also the legislature, the
executive and the administration, play important roles in this respect to
ensure the realisation of these rights.47 Underlying this discussion is the
assumption that social and economic rights – like all other rights – engender
specific obligations that the various branches of the state must fulfil.
Bilchitz has criticised the Constitutional Court for failing to engage
adequately with the need to establish the content of the various social and
economic rights and to clarify what the specific obligations are that the
various branches of the state need to fulfil. According to Bilchitz, there is a
need for the Court to determine what the exact services are to which an
individual is entitled when relying on social and economic rights. It is only
when these obligations are spelt out that it becomes possible to say with
certainty what the obligations are that these rights place on the state.48 The
role that each of these institutions plays in this process is set out below.
(i) at a minimum flow rate of not less than 10 litres per minute;
16.6.1 Introduction
The socio-economic rights in the Constitution are justiciable – that is,
when they are infringed, they can be enforced through the courts.81 In fact,
it can be said that courts exercise the primary role in enforcing the statutory
socio-economic rights described above. In such cases they ‘mechanically’
enforce socio-economic rights as predefined by the legislature, often also
through particular remedies determined by the legislature. The law-making
role of the courts here, although certainly present, is much restricted.
However, courts also directly translate constitutional socio-economic
rights into enforceable legal claims through their interpretation and
application of these rights. In the process of adjudicating disputes on the
basis of constitutional socio-economic rights rather than on the basis of
statutory socio-economic rights, courts interpret these rights and give
concrete and authoritative expression to the duties they impose and to the
entitlements they create in much the same way that the legislature does
when giving effect to them through legislation. Courts also, through their
orders, enforce the duties and entitlements that they define.
16.6.3.3.1 Introduction
A number of factors related to the nature of specific cases and the manner
in which they are argued influences the extent to which courts feel
themselves bound by separation of powers constraints. It is important to
take cognisance of these factors when we want to predict to what extent a
court will exercise its powers to enforce social and economic rights in a
particular case. It is impossible to provide an encyclopaedic list of such
factors or to discuss all the factors in detail in this chapter. However, we
identify and discuss the important factors as an illustration of how
separation of powers concerns influence social and economic rights
adjudication by the judiciary.106
16.6.3.3.2 Where the legislature, executive or state administration has defined the
legal duties, courts are more likely to intervene
In certain social and economic rights cases, courts are not required to
interpret and enforce the rights contained in the Constitution itself.
Sometimes courts are merely required to enforce socio-economic rights
duties which the legislature, the executive or the state administration
has itself defined. In such cases, courts feel less constrained as the elected
branches of government have chosen to define the duties imposed by social
and economic rights themselves and, as it were, invited the courts to police
whether these duties are being fulfilled. Arguing a case on the basis of such
self-defined duties, rather than directly on the basis of a constitutional
socio-economic right, is therefore generally to be preferred.
The most obvious examples of the enforcement of such self-defined
duties are cases where courts enforce statutory socio-economic rights in
either of the two senses described above.107 In most such cases, constraint
is diluted not only by the fact that courts are not faced with having to define
duties to impose on the state themselves, but also because courts are able to
use remedies from the existing law to enforce statutorily defined duties. The
many instances where courts have enforced statutory entitlements to social
assistance through administrative law remedies illustrate this point.108
Perhaps the most dramatic example of courts’ preference for the
enforcement of statutory entitlements is the line of cases culminating in
Ndlovu v Ngcobo; Bekker and Another v Jika.109 In terms of the common
law, a court must grant an eviction order if the applicant can show that he
or she is the owner and that the evictee is occupying the land.110
Section 26(3) of the Constitution, by contrast, determines that a court may
only grant an eviction order after considering all relevant circumstances.
Tenure security laws – most importantly the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act (PIE Act) 111 – require courts
in certain instances to consider all relevant circumstances before granting
an eviction order and as such to give effect to section 26(3).112
However, conflicting decisions in the High Courts raised uncertainty
over whether these laws, and particularly the PIE Act, apply also to
evictions in cases of holding over. These are cases where initially lawful
occupation subsequently became unlawful.113 In such cases, courts have
consequently been faced with the question whether, in lieu of the PIE Act,
section 26(3) changed the common law rules of eviction so as to confer
discretion on courts.
After a series of conflicting decisions in the High Courts in this
respect,114 the question reached the SCA in Brisley. The Court went to
somewhat tortuous lengths to avoid developing the common law in line
with section 26(3). It held that the section 26(3) ‘relevant circumstances’
could only be legally relevant circumstances. For the Court, the only
circumstances legally relevant to the question whether an eviction should be
allowed were the common law requirements of whether the evictor was the
owner of the land in question and whether the evictee was occupying the
land. As a result, the SCA held that section 26(3) did not change the rules of
the common law.115 The only influence that section 26(3) exerted on the
existing law was the influence exerted through the tenure security laws. The
common law was left intact with respect to those kinds of evictions to
which the tenure security laws did not apply.
Five months after Brisley, the SCA decided Ndlovu; Bekker. In this case,
the SCA was faced with the question whether or not the statutory
entitlements to security of tenure created by the legislature in the PIE Act
applied also to evictions in cases of holding over. The Court extended the
PIE Act’s application to such evictions.116 The result in practice was
exactly the same as the result would have been had the Court decided
Brisley differently. Courts would now also have a discretion in cases of
holding over, exercised on the basis of a consideration of all relevant
circumstances, whether or not to grant an eviction order.117 What the Court
was unwilling to do itself in Brisley on the basis of a constitutional right, it
was happy to do in Ndlovu; Bekker on the basis of the PIE Act’s statutory
entitlements.
By the same token, courts are more comfortable with enforcing socio-
economic rights where they have been defined through executive or
administrative action as described above. In B v Minister of Correctional
Services, the Court was willing to order the state to provide at its own cost
antiretroviral medication to the two applicants to whom the state had
prescribed it. By contrast, the Court refused to make the same order with
respect to the two applicants for whom the medication had not yet been
prescribed. This decision turned on the fact that the prescription of the
medication to the first two applicants amounted to an administrative self-
definition of the state’s duty. The Court was willing to enforce that duty
because, in doing so, it was not required itself to determine what adequate
medical treatment entailed, a task that it felt it did not have the requisite
expertise to undertake.118
The Treatment Action Campaign (2) judgment of the Constitutional
Court provides a similar example. This case concerned, however, policy
formulated by the Cabinet rather than a decision by the general state
administration. In the TAC case, the Court was asked to consider the right of
access to health care for HIV-positive pregnant mothers. The case involved
specifically the question whether they are entitled to a single dose of
antiretroviral drugs at the birth of their babies to reduce the transmission of
HIV from mother to child. The Court engaged in a relatively robust manner
with issues of HIV/AIDS policy and was more willing to impose a precise
and intrusive directory order on the state compared with other cases. This
can in significant part be explained by the fact that the Court was simply
requiring the state to extend to its logical conclusion a policy decision that it
had itself already taken. This policy decision was that Nevirapine was
suitable and safe to provide to mothers giving birth at select public health
facilities and their new-born children to prevent the transmission of HIV.
The Court required the state to extend the provision to all public health
facilities for the same purpose.119 Again, an element of self-definition of
duties, this time through an executive policy decision, influenced the
Court’s perception of constraint.
CRITICAL THINKING
16.7.1.1 Introduction
The duty to respect socio-economic rights requires the state and others to:
• refrain from interfering with people’s existing enjoyment of socio-
economic rights
• mitigate interferences with people’s existing enjoyment of socio-
economic rights when such interferences are unavoidable
• refrain from impairing people’s access to socio-economic rights.
As pointed out above, the courts are likely to enforce the different elements
of this negative duty more robustly than the positive duties to protect,
promote and fulfil. The duty to respect, consequently, is a potentially potent
tool with which to ensure people’s adequate access to basic resources.
Courts have been involved in the translation of this element of the duty to
respect socio-economic rights in different ways. In the first place, courts
have enforced legislative translations in this respect. A large body of case
law has already developed around the eviction provisions of statutes such as
the ESTA and the PIE Act. Second, courts have also directly enforced this
element of the duty to respect socio-economic rights by invalidating laws
that allowed the state to interfere in the existing enjoyment of socio-
economic rights or by preventing the state from interfering in the enjoyment
of such rights.
In Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others, for
example, the Constitutional Court found that section 66(1)(a) of the
Magistrates’ Courts Act 142 unjustifiably breached the negative duty to
respect the right of everyone to have access to adequate housing.143 These
provisions allowed the sale in execution of a person’s home to make good a
judgment debt without adequate judicial oversight. The Court proceeded to
read words into the statute to make provision for appropriate judicial
oversight.144 More recently, the Court reconsidered the execution process
in the High Court along similar lines in Gundwana v Steko Development
CC and Others.145
Section 27(3), the right not to be refused emergency medical treatment,
can perhaps also be interpreted to give expression to the state’s duty to
respect socio-economic rights by refraining from interfering in the existing
enjoyment of these rights. In Soobramoney, the Constitutional Court held
this right only required the state not to refuse arbitrarily emergency medical
treatment where it exists. This is an inordinately restrictive reading which,
as Alston and Scott point out, renders the right virtually redundant.146 A
matter which at this stage remains unclear is the question whether or not
section 27(3) of the Constitution could also be used to prohibit the state
from disestablishing an emergency medical service at a public health
institution to save costs.147
CRITICAL THINKING
16.7.2.1 Introduction
The duty to protect socio-economic rights requires the state to protect the
existing enjoyment of these rights, and the capacity of people to enhance
their enjoyment of these rights or newly to gain access to the enjoyment of
these rights, against third-party interference.
16.7.3.1 Introduction
The duty to fulfil socio-economic rights requires the state to ‘adopt
appropriate legislative, administrative, budgetary, judicial, promotional and
other measures’ 201 so that access to basic resources is extended and
enhanced. In sum, the state must act affirmatively to realise the rights. The
state breaches the duty to fulfil not when it invades the existing exercise of
socio-economic rights, but when it does not do enough or does not do the
appropriate things fully to realise those rights. For courts to enforce the duty
to fulfil requires them directly to evaluate state policy and practice and to
decide whether or not those policies and practices are adequate measures to
realise the socio-economic rights in question.
Courts are constrained in this evaluation by concerns about technical
capacity and institutional legitimacy as well as by a perceived absence of
justiciable standards against which to assess state performance. To deal with
these difficulties, the Constitutional Court has used a traditional model of
judicial review, but has given it new content. As with any breach of any
other right, when it is alleged that the duty to fulfil a socio-economic right
has been breached and where prima facie such a breach is established, the
Court considers whether or not it can be justified. However, the Court has
developed a special test or standard against which to evaluate the
justifiability of state measures to fulfil socio-economic rights that allows it,
in different ways, to mediate its concerns with capacity and legitimacy.
Which standard of scrutiny applies to breaches of the duty to fulfil socio-
economic rights depends on which socio-economic rights are at issue. If the
duty to fulfil a basic socio-economic right is breached, for example
children’s rights, rights of detainees or the right to basic education, the
section 36(1) proportionality standard applies. If the duty to fulfil a
qualified socio-economic right is breached, that breach can be justified
only in terms of a special standard of scrutiny – the Court’s reasonableness
standard – developed on the basis of the internal limitation clause attached
to these rights.
In determining whether the constitutional duties have been met, the
context is all important. The duties on the state may differ depending on the
litigants and the broader context within which they find themselves. As the
Constitutional Court pointed out in the Grootboom judgment with reference
to the right of access to adequate housing, ‘housing entails more than bricks
and mortar. It requires available land, appropriate services such as the
provision of water and the removal of sewage and the financing of all of
these, including the building of the house itself’.202 Moreover, it is not
only the state which is responsible for the provision of these rights. Other
agents in our society, including individuals themselves, must be enabled by
legislative and other measures to provide housing. The state must create the
conditions for access to the relevant right for people at all economic levels
of our society. State policy dealing with housing must therefore take
account of different economic levels in our society. There is a difference
between the position of those who can afford to pay for housing, even if it is
only basic although adequate housing, and those who cannot. For those who
can afford to pay for adequate housing, the state’s primary obligation lies in
unlocking the system, providing access to housing stock and a legislative
framework to facilitate self-built houses through planning laws and access
to finance.203
16.7.3.2.1 Introduction
At the heart of the Constitutional Court’s approach to the implementation of
the duties imposed by social and economic rights – especially those set out
in sections 26 and 27 – is the requirement that the state must act reasonably
in order to meet its constitutional obligations. Although reasonableness
could arguably also be applied when dealing with the duty to protect
discussed above, it finds its most direct application in cases of the duty to
promote and fulfil and we will therefore discuss it under this subheading. It
is important to understand the factors that the courts take into account to
determine whether the state has indeed acted reasonably. Before we discuss
these factors, we first set out the judicial framework within which such a
determination will be made. The Constitutional Court has described its
reasonableness standard of scrutiny in five cases.
In Soobramoney, the Court refused to grant an order instructing
Addington State Hospital to provide dialysis treatment to the applicant. The
grounds for this decision were that the guidelines according to which the
hospital decided whether to provide the treatment were not unreasonable
205 and were applied rationally and in good faith to the applicant.206 This
meant, the Court held, that the Hospital’s decision did not breach the
section 27(1) right of everyone to have access to health care services.207
In Grootboom, the respondent applied for an order declaring the state’s
housing programme to be unconstitutional on the ground that it infringed
section 26(1) which guarantees everyone the right of access to adequate
housing. The Constitutional Court granted the order. In arriving at its
decision, the Court held that the state’s housing policy was unreasonable
and thus infringed section 26(1) because it did not include people who were
homeless and who found themselves in a crisis situation.208
In Treatment Action Campaign (No 2), the respondent applied for an
order declaring the state’s mother-to-child transmission (MTCT) of HIV at
birth prevention programme to be unconstitutional on the ground that it
infringed section 27(1) which guarantees everyone the right of access to
health services. The Constitutional Court granted the order. In arriving at
this decision, the Court held that the state’s MTCT of HIV at birth
programme was unreasonable and thus infringed section 27(1) because it
was not implemented at all public health facilities, but only at a limited
number of pilot sites.209
In Khosa, the applicant applied for an order declaring sections of the
Social Assistance Act, which excluded permanent residents from access to
social assistance grants, to be unconstitutional on the grounds that they
infringed section 27(1)(c) which guarantees the right of everyone to have
access to social security. The Constitutional Court granted the order. In
arriving at this decision, the Court held that the relevant sections were
unreasonable and thus infringed section 27(1)(c) because, first,
section 27(1)(c) refers to ‘everyone’ and not just to ‘citizens’; second,
permanent residents have made South Africa their home; and, third,
extending social security grants to permanent residents would not impose
an undue financial burden on the state.
In Mazibuko, the applicant applied for an order declaring the City of
Johannesburg’s free water policy which provided each household with 6
kilolitres of free water per month to be unconstitutional on the ground that it
infringed section 27(1)(b) which guarantees everyone the right of access to
sufficient water. The Constitutional Court refused to grant the order. In
arriving at this decision, the Court held that the City’s policy was
reasonable because, first, the majority of households in Johannesburg
consisted of four occupants or less; second, 6 kilolitres of free water per
household per month was more than adequate for such households; and,
third, larger households could apply to the City for an additional 4 kilolitres
per month.
Although the Constitutional Court has not been explicit about this, it is
clear from these cases that the reasonableness standard is a shifting standard
of scrutiny. In Soobramoney, the Court applied a basic rationality and good
faith test.210 In Grootboom and Treatment Action Campaign (No 2), the
Court applied a more stringent means-end effectiveness test. In Khosa, the
Court applied a yet stricter proportionality test. In Mazibuko, however, the
Court retreated from the proportionality test it had adopted in Khosa and
followed a much more deferential and process based approach.
Unfortunately, the Constitutional Court has not been explicit about which
factors determine the strictness of its scrutiny,211 but the cases indicate that
the following factors play a role:
• the position of the claimants in society 212
• the degree of deprivation they complain of and the extent to which the
breach of the right in question affects their dignity 213
• the extent to which the breach in question involves undetermined,
complex policy questions 214
• whether or not the breach also amounts to a breach of other rights 215
• the administrative and practical difficulties the provision of the goods
and services in question give rise to 216
• the extent to which the state has continuously reviewed and refined its
policies and programmes to ensure that it meets the needs of the poor
217
• the seriousness with which the state has approached its obligation and
the extent to which it accepts that it is obliged to take reasonable steps to
fulfil the right in question.218
16.7.3.3.1 Introduction
The Constitutional Court’s reasonableness standard requires first that the
state indeed act to give effect to socio-economic rights, and then requires
that what the state does meets a standard of reasonableness. In addition, the
state is also required to review continuously its plans and policies.
SUMMARY