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PBL Module 2
Theme 1
CHAPTER 11 – THE NATIONAL LEGISLATIVE AUTHORITY
Legislative Authority in General
 Definition of legislative authority in general

o The power to enact, amend and repeal rules of law.
o This authority is exercised by different government bodies at all levels of government
within state
 Explain legislative authority of RSA
s43 – Legislative Authority of the Republic

1. In the Republic, the legislative authority –
a. Of the national sphere of gov is vested in Parliament
b. Of provincial sphere is vested in provincial legislatures
c. Of local sphere is vested in Municipal Councils
d. Parliament is bound by Constitution in relation to all law making
 Explain historical development of the institution of “parliament”

o Parliament originates from Latin ‘parliamentum’ meaning ‘to speak’
o Through development with British constitutional law that parliament as institution
took on its modern form
o Became customary to refer to meetings of King and his noblemen as ‘parliaments’
o Parliament as an institution developed mainly out of King’s need to obtain
approval and acceptance of his subjects for new laws or taxes
o Over time became customary for people who participated in parliament to
represent the people
o SA parliament greatly influenced by Westminster system of government.
o Principles of representation and responsible government from Westminster system
have been incorporated into most democratic systems
Functions & Composition of Parliament
 Name and explain different functions of modern parliament

o Representation – parliament represents people of the state. It constitutes a channel of
communication between central government and citizens of state
o Control – parliament exercises control over executive
o Regulation of conflict – parliament must regulate and address conflict
between different interest groups within national legislature
o Judicial/administrative – discipline and punishment of members of parliament is
exercised by parliament and parliament is often required to ratify certain decisions
of the executive
o Legislative – most important function – to consider, debate, amend and approve both
new and old laws submitted by the executive or individual members.
 Explain composition of SA parliament
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o SA parliament consists of two houses – National Assembly (NA) and National Council of
Provinces (NCOP)
Parliamentary Franchise & Elections
 Discuss and explain political rights and what protection of such rights in SA Const.
entails
s19 Political rights

1. Every citizen is free to make political choices, which includes right –
d. to form a political party
e. to participate in the activities of, or recruit members for, a political party; and
f. to campaign for a political party or cause
2. Every citizen has right to free, fair and regular elections for any legislative
body established in term of the Constitution.
3. Every adult citizen has the right-
a. To vote in elections for any legislative body established in terms of the Constitution
and to do so in secret; and
b. To stand for public office and, if elected, to hold office
 What was the origin of the principle of parliamentary franchise?

o Parliamentary franchise originated from principle of representation
 Identify and explain different elements of right to franchise protected in terms of s19 of Const.
o Right to franchise must be general or universal. Right extends to all citizens who
comply with certain minimum requirements. Exclusion of people or groups on
arbitrary grounds is prohibited. However, general requirements and disqualifications
are not prohibited.
o Right to franchise must be equal. All votes carry same weight (rich and poor people’s
votes count the same)
o Right to franchise must be direct. Vote of every voter has direct influence on result
without any go-betweens that might influence exercise of that right. This element
also aims at preventing intimidation and corruption with regard to ballots cast
o Every vote should be exercised in secret. Ensure voluntary and intimidation-free
results. Secrecy is protected in various provisions of Electoral Act.
 Inquire whether the right to franchise can be limited
o Right to the franchise as guaranteed in Const. is not an absolute right therefore it can
be limited in certain circumstances.
o Const. and Electoral Act also lay down some provisions which limit. E.g. s19 of
Const. limits right to every adult SA citizen (non-citizens and non-adults are thus
disqualified)
o Also remember rights guaranteed in BoR (right to equality). These can be important
when certain people are prevented from exercising right to franchise.
o s46 of Const. requires provides for minimum voting age of 18 years.
o No disqualification may derogate from voting rights guaranteed in BoR unless such
limitation complies with requirements of general limitation clause (s36 of Const.)
 Inquire whether prisoners can vote
o Prisoners are NOT disqualified from voting
o Must be allowed to register and vote during election procedures
o Must be consistent with s36 of the Const.
o August case
2|Page

 The court pointed out that Parliament could through legislation,

disenfranchise certain categories of prisoners, but in the absence of
such legislation, prisoners retained their right to vote
 Through Electoral Act 73 of 1998
 Evaluate if the requirement for a person (citizen) to have a bar coded ID before s/he
can exercise his/her right to franchise is constitutional. Substantiate.
o Voter registration before exercising the right to vote
 Specifically required for the 1999 election (Electoral Act)
 Bar-coded ID was needed
o This requirement was legally challenged
 New National Party of SA v Government of SA
 It was submitted that requirement was unconstitutional
 Disenfranchised millions of people
 Voters who did not apply for new ID’s timeously
 Dep of HA unable to process all the new applications
Court held:
 Voters had sufficient time to apply for new ID

 Requirement – admin – aimed to eliminate fraud and other irregularities
 Requirement complied with Sec 36
 Limitation was reasonable and justifiable in open and democratic society
 Not unconstitutional
 Confirmed at Constitutional Court
 Right to vote not infringed
 Requirements not unconstitutional
 Contemplate the extent of, and importance of Richter v Minister for Home Affairs and
Others 2009 (5) BCLR 448 (CC)/2009 (3) SA 615 (CC). Inquire into the extent of, and
importance of the 2013 Electoral Amendment Act, which intends to extend the Electoral
Act’s scope on special votes to include South African citizens living and working in foreign
jurisdictions.
o SA citizen’s living/working abroad which are registered to vote in general elections
o Richter v Minister of Home Affairs
 Court held that:
 s33(1)(e) of the Electoral Act constitutes an unjustifiable limitation
of s19 of the Const.
 Restricting the classes of registered voters who are absent from
the republic on election day from participating in elections
 The consequence:
 The court had to make an order extending the period within which
those who are to be abroad on polling day may notify the Chief
Electoral officer of their intention to do so
o Electoral Act was amended
o AFTER the Richter case in 2009
o Electoral Act was signed and assented to by the President in November 2013
 Contemplate on the extent of and importance of the right to free and fair elections protected in
the South African Const.
o To ensure regular elections - Parliament is elected for a fixed term only
o Expiry = a new election must be held
o Wide participation without interference/coercion
o Require all political parties to have equal opportunity to canvas support and to
be treated in an equal manner
o The Const. provides for an independent electoral commission – main purpose =
manage elections in South Africa
o Must ensure these elections are conducted freely and fairly
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 s190 of the Const.

o Objective – strengthen constitutional democracy and to promote democratic electoral
processes
o Ensure the functioning in SA of the constitutional system
Electoral Systems
 Difference between constituency system of representation and system of

proportional representation
o Constituency system: often criticised for not providing proper representation and
thus not accurately reflecting support of certain parties
o Country or area of election is demarcated into specific geographical
units/constituencies and voters of each constituency elect their representatives
DIRECTLY
o May be divided into single or multi-member system
 Single – based on either relative majorities (where candidate who obtains
most votes is elected even though they did not obtain an absolute majority or
absolute majorities which require 50% plus 1 of all votes cast.
 Multi-member – voter votes for a single candidate or may have as many
votes as there are places to be filled
 All votes can be in favour of one candidate or may be distributed
 More than one ballot and preferential votes may be used
 Proportional representation system:
o Objective = to bring about direct relationship between % of votes cast in favour
of specific party and number of seats allocated to that party
o Can be sub-divided into list system and preferential system
 List system and preferential system
o List system –
 voter casts single vote for party of their choice
 each party receives percentage of seats in relation to percentage of
votes secured
 seats are then filled from list of candidates compiled and submitted before
election
o Preferential -
 electorate votes for individual candidates
 Arrange name of candidates in order of preference
 Criticisms of proportional systems
o Although produces better representation, criticised for causing a proliferation of small
parties/splinter groups and
o Unstable governments
o This problem can be alleviated through requirement of minimum percentage support
 System of representation in SA in terms of Const.
o SA has system of proportional representation adopted under Const.
 Constitutional protection of political parties
o Although the state has a duty to protect the existence of political parties, the rights
in respect of political participation are not absolute. Various requirements are
usually laid down, with which political parties must comply. For example, the party
must officially register and must also pay a deposit before it'll be allowed to
participate in an election.
4|Page

Composition of Parliament
 Identify 2 houses of SA parliament and explain purposes (s42)

o National Assembly:
 Elected to represent the people and to ensure gov by the people under Const.
 Does this by choosing president, by providing a national forum for
public consideration of issues, by passing legislation and by scrutinising
and overseeing executive action.
 Main function is to represent people and to ensure gov by people under
Const.
o National Council of Provinces
 Represents provinces to ensure that provincial interests are taken into
account in national sphere of gov.
 Does this by participating in national legislative process and by providing a
national forum for public consideration of issues affecting provinces
 Represents provinces at national level and ensures provincial interests are
taken into account
 Explain composition of both houses of parliament (s46 and s60)
s46 Composition and Election

1. NA – consists of no fewer than 350 and no more than 400 women and
men elected as members in terms of an electoral act system that:
a. Is prescribed by national legislation
b. Is based on nation common voters roll
c. Provides a minimum voting age of 18 years and
d. Results, in general, in proportional representation
o In terms of Electoral Act number of members in NA has been set at 400

o This number = maximum Const. allows – each representative represents about
125 000 voters
s60: Composition of National Council

1. NCOP – composed of a single delegation from each province consisting of
ten delegates.
2. The ten delegates are
a. Four special delegates consisting of
i. Premier of the province or, if Premier not available and member
of provincial legislature designated by Premier generally or for
any specific business before NCOP
ii. 3 other special delegates
b. Six permanent delegates appointed in terms of s61(2)
3. The Premier of a province or if not available, a member of province’s
delegation designated by Premier heads the delegation
5|Page

Membership of Parliament
 Identify different membership qualifications and disqualifications of the South African

parliament
o Membership
s47 Membership
1. Every citizen who is qualified to vote for the national assembly is eligible to be a member
of the assembly, except –
a. Anyone who is appointed by, or is in the service of, the state and receives remuneration for
that appointment or service, other than –
i. The President, deputy president, ministers and deputy ministers; and
ii. Other office bearers whose functions are compatible with the functions of a
member of the assembly, and have been declared compatible with those functions
by national legislation
b. Permanent delegates to the national council of provinces or members of a
provincial legislature or municipal council
c. Unrehabilitated insolvents
d. Anyone declared to be unsound of mind by a court of the republic; or
e. Anyone who, after this section took effect, is convicted of an offence and sentenced to
more than 12 months imprisonment without the option of a fine, either in the republic, or
outside the republic if the conduct constituting the offence would have been an offence in
the republic, but no one may be regarded as having been sentenced until an appeal against
the conviction or sentence has been determined, or until the time for an appeal has expired.
A disqualification under thus paragraph ends five years after the sentence has been
completed.
2. A person who is not eligible to be a member of the national assembly in terms of
subsection (1)(a) or (b) may be a candidate for the assembly, subject to any limits or
conditions established by national legislation.
3. A person loses membership of the national assembly if that person –
a. Ceases to be eligible
b. Is absent from the assembly without permission in circumstances for which the rules
and orders of the assembly prescribe loss of membership; or
c. Ceases to be a member of the party that nominated that person as a member of the
Assembly
4. Vacancies in the national assembly must be filled in terms of the national legislation
s62 Permanent delegates © K Walker
1. A person nominated as a permanent delegate must be eligible to be a member of the provincial
legislature
2. If a person who is a member of a provincial legislature is appointed as a permanent
delegate, that person ceases to be a member of the legislature
3. Permanent delegates are appointed for a term that expires –
a. Immediately before the first sitting of a provincial legislature after its next election.
4. A person ceases to be a permanent delegate if that person –
a. Ceases to be eligible to be a member of the provincial legislature for any reason
other than being appointed as a permanent delegate;
b. Becomes a member of the cabinet
c. Has lost the confidence of the provincial legislature and is recalled by the party
that nominated that person
d. Ceases to be a member of a party that nominated that person and is recalled by that
party; or
6|Page

e. Is absent from the national council of provinces without permission in

circumstances for which the rules and order of the council prescribe loss of office as
a permanent delegate
5. Vacancies among the permanent delegates must be filled in terms of national legislation.
6. Before permanent delegates begin to perform their functions in the national council
of provinces, they must swear or affirm faithfulness to the republic and obedience to
the constitution, in accordance with schedule 2.
 Imperative and Free mandate and which is used in SA

o Imperative mandate:
 Requires members to be bound by, and obligated to comply with the orders
of the political party under which they took part in the election and were
subsequently elected.
 Members thus accountable not to parliament but to their respective parties
o Free mandate:
 Representatives not bound by political or voter directives and thus not
controlled by outside considerations
 Guided only by own conscience
 Must act in national interest
o In SA, imperative mandate was repealed and replaced by the CONCEPT of a free
mandate of representation. (because requirement of member of political party having
to vacate their seat if they changed party wasn’t included in Final Const.)
 SA position with regard to floor crossings in National Legislature
o Abolished in 14th Constitutional Amendment of 2008
o Only possible in the National Assembly BUT not after national legislature has
been composed
Term of Parliament
 Explain term of SA parliament

o Elected for specific term of office, therefore regular elections must be held
s49: Duration of NA
1. Na is elected for a term of 5 years
2. If NA is dissolved in terms of s50, or when term expires, President by
proclamation must call and set dates for an election which must be held
within 90 days of date Assembly dissolved or its term expired.
Proclamation calling and setting dates for an election may be issued
before or after expiry of term of NA
3. If result of an election of NA is not declared within period established in
terms of s190, or if election is set aside by court, President by
proclamation must call and set dates for another election which must be
held within 90 days of expiry of that period or of the dat8e on which
election was set aside
4. NA remains competent to function from time it is dissolved or its term
of expiry, until day before first day of polling for the next Assembly
 Under what circumstances must NA dissolve before expiring of its normal term?
7|Page

s50: Dissolution of NA before expiry of its term

1. President must dissolve NA if:
a. The assembly has adopted a resolution to dissolve with
a supporting vote of majority of its members, and
b. 3 years have passed since Assembly was elected
2. The Acting President must dissolve NA if:
a. There is a vacancy in the office of President, and
b. The assembly fails to elect a new President within 30 days
after vacancy occurred
 If NA is dissolved, will NCOP also dissolve automatically?

o s49 refers only to NA. Const. provides that provincial legislature also elected for term
of 5 years. Thus it seems possible for NA to be dissolved without any effect on
NCOP.
Powers of Parliament
 The national legislative authority is vested in?

s44: National Legislative Authority
1. The national legislative authority as vested in Parliament –
a. Confers on the NA the power –
i. To amend the Constitution
ii. To pass legislation with regard to any matter, including a matter within a functional area
listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional
area listed in Schedule 5; and
iii. To assign any of its legislative powers, except the power to amend the Constitution, to any
legislative body in another sphere of government; and
b. Confers on the NCoP the power –
i. To participate in amending the Constitution in accordance with s74;
ii. To pass, in accordance with s76, legislation with regard to any matter within a functional
area listed in Schedule 5 and any other matter required by the Constitution to be passed in
accordance with s76; and
iii. To consider in accordance with s75, any other legislation passed by the NA
2. Parliament may intervene, by passing legislation in accordance with s76(1), with regard to a matter
falling within a functional area listed in Schedule 5, when it is necessary –
a. To maintain national security
b. To maintain economic unity
c. To maintain essential national standards
d. To establish minimum standards required for the rendering of services; or
e. To prevent unreasonable action taken by a province which is prejudicial to the interests of another
province or to the country as a whole
3. Legislation with regard to a 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
4. When exercising its legislative authority, Parliament is bound only by the Constitution, and must act
in accordance with, and within the limits of, the Constitution.
8|Page

 Evaluate whether authority of parliament can be restricted

o In state with entrenched const., authority of parliament can be restricted in 2 ways:
 Might be subject to a bill of rights as part of Const.
 Const. may also distribute powers between parliament and other legislatures
o SA provides for both a Bill of Rights and distribution of powers. Parliament
derives all its legislative powers from Const.
 What are the powers of NA and NCOP when exercising legislative powers?
s55: Powers of NA
1. In exercising its legislative power, the NA may –
a. Consider, pass, amend or reject any legislation before the Assembly; and
b. Initiate or prepare legislation, except money Bills
2. The NA must provide for mechanisms –
a. To ensure that all executive organs of state in the national sphere of gov.
are accountable to it; and
b. To maintain oversight of –
i. The exercise of national executive authority, including the
implementation of legislation; and
ii. Any organ of state
s68: Powers of NCoP

In exercising its legislative power, the NCoP must –
a. Consider, pass, amend, propose amendments to or reject any legislation before
the Council, in accordance with this Chapter; and
b. Initiate or prepare legislation falling within a functional area listed in Schedule 4
or other legislation referred to in s76(3), but may not initiate or prepare money
Bills
9|Page

Functioning of Parliament
 Where is the seat of parliament? Can the seat be relocated?

o Currently the seat of SA Parliament is in Cape Town.
o Const. provides specifically: seat of parliament may be moved;
however, for this to happen, an Act of Parliament enacted in
terms of s76(1) and (5) is required
o Generally – sittings are held where seat of Parliament is located
o Sittings may take place at other places if necessary
 Explain purpose and importance of the Speaker of the National
Assembly and the Chairperson of the National Council of
Provinces
o Generally tasked with chairing meetings, maintaining order
and ensuring that the house functions according to its rules
o Speaker – must ensure that the rules and norms of
parliamentary procedure and conduct are objectively,
consistently, and uniformly interpreted and applied
o Speaker -has a casting vote in the event of deadlock in the house,
but no ordinary or deliberative vote unless 2/3 majority is
required (NCoP has similar arrangements)
o s52(1) – Speaker and Deputy Speaker
o s64(1) – Chairperson and Deputy Chairpersons
 Discuss the decision-making requirements set out in S53 and 65 of Const.
s53: Decisions in NA
1. Except where the Constitution provides otherwise –
a. A majority of the members of the NA must be present before a vote may
be taken on a Bill or an amendment to a Bill;
b. At least 1/3 of members must be present before a vote may be taken on any
other question before the Assembly; and
c. All questions before the Assembly are decided by a majority of the votes cast
2. The member of the NA presiding at a meeting of the Assembly has no deliberative
vote but –
a. Must cast a deciding vote when there is an equal number of votes on each side
of a question; and
b. May cast a deliberative vote when a question must be decided with a
supporting vote of at least 2/3 of members of the Assembly
s65: Decisions in NCoP

 Identify and discuss different majorities referred to in Const. and
1. Exceptexplain
where the
what Constitution
the term “aprovides
quorum”otherwise
is –
a. Eacho province
A quorum has–one
is avote, which
required is cast on
minimum behalf of
number of members
the province
of aby the
head ofhouse
its delegation; and that must be present before a decision can be
or committee
b. All questions
made before the NCOP are agreed when at least 5 provinces vote
in favour of the question
2. An Act of Parliament, enacted in accordance with the procedure established by either
A simple
subsection o(1) or majority
(2) of s76, – refersfor
must provide to a decision made by a in
uniform procedure majority
terms of which
(50% plus 1) of the members present that constitute a quorum
provincial legislatures confer authority on their delegations to cast votes on their
behalf
20 | P a g e

o A clear or absolute majority – refers again to 50% plus 1 of

the total number of members of a house/committee
o A special majority – refers to an increased majority (75% or 2/3)
of total number of members of a house or committee
 Evaluate the protection of public participation and public access in parliamentary
procedures
s54: Rights of certain Cabinet members and Deputy Ministers in the NA
The President, and any member of the Cabinet or any Deputy Minister who is not a member of
the National Assembly, may, subject to the rules and orders of the Assembly, attend and speak in
the Assembly, but may not vote.
s66: Participation by members of national executive

1. Cabinet members and Deputy Ministers may attend, and may speak in, the National
Council of Provinces, but may not vote.
2. The National Council of Provinces may require a Cabinet member, a Deputy Minister or an
official in the national executive or a provincial executive to attend a meeting of the
Council or a committee of the Council.
s67: Participation by local government representatives
Not more than ten part-time representatives designated by organised local government in terms
of s163, to represent the different categories of municipalities, may participate when necessary
in the proceedings of the National Council of Provinces, but may not vote.
s59: Public access to and involvement in National Assembly
1. The National Assembly must—

a. Facilitate public involvement in the legislative and other processes of the
Assembly and its committees; and
b. Conduct its business in an open manner, and hold its sittings, and those of
its committees, in public, but reasonable measures may be taken—
i. To regulate public access, including access of the media, to the
Assembly and its committees; and
ii. To provide for the searching of any person and, where appropriate,
the refusal of entry to, or the removal of, any person.
2. The National Assembly may not exclude the public, including the media, from a sitting
of a committee unless it is reasonable and justifiable to do so in an open and
democratic society.
lvement in National Council
nces must—
n the legislative and other processes of the Council and its committees; and
en manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken—
uding access of the media, to the Council and its committees; and
f any person and, where appropriate, the refusal of entry to, or the removal of, any person.
nces may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an

o Not only members of other legislatures but also public (through political parties) have
access to both houses of parliament
o Public access and participation = strongly protected under Const.
o Any limitation of public involvement must be justifiable under Const. ethos and
value-based system
o Const. provides that each house may summon any person to appear before it to give
evidence or produce documents
o This is directed at ensuring transparency, public awareness and participation
o HOWEVER, measure of control over access to parliament is retained – protect
parliaments dignity and ensure order in its proceedings
Legislative Process
 Define the concept “legislative process”

o A series of actions through which a proposal for a new law is formulated, considered
and finally approved according to prescribed procedures by competent and authorised
government institutions, in order to have the force of law.
 Inquire whether a difference between private bills and public bills can be established
o Public Bills –
 Bills that affect the general interest of the public
 Most Bills are public Bills
o Private Bills –
 Affect only the private interests of particular individuals or groups
o Hybrid Bills –
 Contain elements of both public and private Bills
 Identify the special requirements/procedures that must be followed to ensure lawful
consideration of bills
o Bills must be introduced by special functionaries only, who place them on the
agenda of the required house of parliament. This must be done in a prescribed way
and at prescribed times
o After introduction of bill, it is considered in 2 stages:
 The principle stage – includes debate on the background, purpose and basic
principles of the Bill
 Detail stage – an analysis of the specific particulars of the Bill is undertaken
o In modern parliamentary procedures, most Bills referred to special committees before
any consideration/decision by parliament itself is requested
o Different types of Bills considered differently. Most systems have unique
procedures that must be followed when Bills affecting the budget/constitutional
amendments are proposed
o After consideration of Bill, it must be adopted, amended or rejected (in most cases)
by each house of parliament. If adopted by both, it’s referred to the head of state for
approval. Only after their assessment and promulgation of the new Act does a
particular Bill become an Act of parliament with full force as a law
NB: A law that has been adopted in terms of wrong procedure should be INVALID
 Inquire into the basic procedure and requirements of all bills
o Result of initiation of proposed law is formal preparation of a Bill by the relevant
state department, its approval by Cabinet and then its introduction into the
national legislature.
o A Bill must often be introduced by specific functionaries only and only in a specific
house of parliament
23 | P a g e
mber or committee of the NA, may introduce a Bill in the Assembly;

Distribution of this but only isthe
document Cabinet member responsible for national finance matt
illegal
subsection (2)(a) or (b) of this section, may be introduced
Stuvia.com in the NCOP
- The Marketplace to Buy and Sell your Study Material
duce a Bill in the Council
if it must be considered by the Council. A Bill passed by the Council must be referred to the Assembly
 Inquire and explain the procedure for handling a bill in parliament

o The internal handling of bills in a parliament is regulated by the internal rules of
that parliament – this also applies in SA. Procedure is as follows:
 Before introduction, a Bill is published for comment
 After publication, a Bill is introduced by the authorised functionary,
who submits it to the Speaker or chairperson of the house where the Bill
is required to be introduced. A memorandum must accompany the Bill,
explaining its purpose and financial implications
 The classification committee must classify the Bill, where after it is
furnished to every member of the relevant house
 If the house is in sitting, the Bill is placed on the order paper for a ‘first
reading debate’. The person introducing the Bill may be requested to give an
introductory speech on the Bill. No amendments are allowed at the first
reading debate. After the reading debate, Ill is regarded as having been read
for first time and referred to relevant committee which deals with Bill
 If house is not in sitting, speaker/chairperson refers Bill to relevant
portfolio committee, after which it is considered to have been read for first
time. Bill must also be distributed to all members of the committee at least
14 days before the first meeting of the committee
 After a committee has received a Bill it must allow the public to comment
on the Bill. The committee then investigates the Bill and reports to the house
of adoption or rejection of the Bill
 The report of the committee is placed on the order paper of the house for the
second reading debate. Only the purposes and principles of the bill are
discussed during the second reading
 Only after the house has considered the reports from the relevant committees
can it take a vote on the second reading of the Bill. If the house agrees to the
Bill, it has adopted the Bill. A Bill can only be withdrawn before its
approval at the second reading
 In principle, both houses must adopt an ordinary Bill. Bill is thus sent from
one house to the other
 When both houses have approved the second reading of a Bill , it is referred
to President for assent and promulgation
 Inquire into various constitutional entrenchment methods
o Entrenchment = more difficult procedure and process required to amend the Const.
Various methods:
 Some provisions of Const. are ABSOLUTELY ENTRENCHED and any
amendment/repeal of such provisions are completely prohibited
 Sometimes a const. may only be amended with the CONENT OF OTHER
BODIES that are not part of the highest legislature
 The most common method of constitutional entrenchment is through
REQUIRING A MORE DIFFICULT PROCEDURE for the highest
legislature in the state. Eg. – an increased majority, before amendments can
be approved
 Inquire and discuss the constitutional requirements regarding bills amending the Const.
s74: Bills amending the Constitution

1. s1 and this subsection may be amended by a Bill passed by –
a. The NA with a supporting vote of at least 75% of its members; and

b. The NCoP with a supporting vote of at least six provinces.
2. Chapter 2 may be amended by a Bill passed by –
a. The NA with a supporting vote of at least 2/3 of its members; and
b. The NCoP with a supporting vote of at least six provinces.
3. Any other provision of the constitution may be amended by a bill passed –
a. By the NA with a supporting vote of at least 2/3 of its members; and
24 | –P a g e
b. Also by the NCoP with a supporting vote of at least six provinces if the amendment
i. Relates to a matter that affects the council;
Downloaded by: laurensteyn | laurenstn06@gmail.com *Continued
ii. Alters provincial boundaries, powers, functions or institutions; or

© K Walker
iii. Amends a provision that deals specifically with a provincial matter.
4. A bill amending the Constitution may not include provisions other than constitutional amendments and
matters connected with the amendments
5. At least 30 days before a bill amending the Constitution is introduced in terms of s73(2), the person or
committee intending to introduce the Bill must:
a. Publish in the national government gazette and in accordance with the rules and orders of the
national assembly particulars of the proposed amendment for public comment;
b. Submit in accordance with the roles and orders of the assembly those particulars to the provincial
legislatures for their views; and
c. Submit in accordance with the rules and orders of the national council of provinces those
particulars to the council for a public debate if the proposed amendment is not an amendment that
is required to be passed by the council.
6. When a bill amending the Constitution is introduced the person or committee introducing the bill must
submit any written comments received from the public and the provincial legislatures –
a. To the speaker for tabling in the NA; and
b. In respect of amendments referred to in subsection (1), (2), or (3) (b), to the chairperson of the
NCoP for tabling in the council.
7. A bill amending the Constitution may not be put to the vote in the NA within 30 days of –
a. Its introduction if the assembly is sitting when the bill is introduced; or
b. Its tabling in the assembly if the assembly is in recess when the bill is introduced.
8. If a bill referred to in subsection (3)(b) or any part of the bill concerns only a specific province or
provinces the NCoP may not pass the bill or the relevant part unless it has been approved by the
legislature or legislatures of the province or provinces concerned.
9. A bill amending the constitution that has been passed by the NA and where applicable by the NCoP must
be referred to the president for assent.
 Evaluate to what extent the const. can be amended?

o To what extent the South African Const. can be amended is not absolutely clear. It
seems however as if the constitutional drafters intended the whole text of the const. to
be amendable. In contrast with the principle of complete amendments one finds the
so- called “basic features doctrine”, which has been developed by the Indian courts.
According to this doctrine there are certain basic features of a const. that cannot be
amended under any circumstances. It is possible for the SA courts to adopt a similar
approach in future when the basic values and principles of the const. are to be
amended.
 Inquire and discuss the constitutional requirements regarding ordinary bills not affecting the
provinces.
o This section makes it clear that the NCoP is in a subordinate position in regard to the
NA.
s75: Ordinary bills not affecting provinces

1. When the national assembly passes a bill other than a bill to which the procedure set out in s74 or
s76 applies the bill must be referred to the NCOP and dealt with in accordance with the
following procedure:
a. The council must:
i. Pass the bill
ii. Pass the bill subject to amendments proposed by it
iii. Reject the bill
b. If the council passes the bill without proposing amendments the bill must be submitted
to the president for assent.
c. If the council rejects the bill or passes it subject to amendments the assembly must
reconsider the bill taking into account any amendment proposed by the council and may
–
i. Pass the bill again either with or without amendments or
ii. Decide not to proceed with the bill
d. A bill passed by the assembly in terms of paragraph (c) must be submitted to the
president for assent 25 | P a g e
*Continued
2. When the national council of provinces votes on a question in terms of this section© 65
K Walker
does
not apply instead –
a. Each delegate in a provincial delegation has one vote
b. At least one third of the delegates must be present before a vote may be taken on
the question
c. The question is decided by a majority of the votes cast but if there is an equal number
of votes on each side of the question the delegate presiding must cast a deciding vote.
 Inquire and discuss the constitutional requirements regarding ordinary bills affecting the
provinces.
s76: Ordinary bills affecting provinces

1. When the National Assembly passes a Bill referred to in subsection (3), (4) or (5), the
Bill must be referred to the National Council of Provinces and dealt with in accordance
with the following procedure:
a. The Council must
i. pass the Bill;
ii. pass an amended Bill; or
iii. reject the Bill.
b. If the Council passes the Bill without amendment, the Bill must be submitted to
the President for assent.
c. If the Council passes an amended Bill, the amended Bill must be referred to the
Assembly, and if the Assembly passes the amended Bill, it must be submitted to
d. If the Council rejects the Bill, or if the Assembly refuses to pass an amended
Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also
the amended Bill, must be referred to the Mediation Committee, which may
agree on
i. the Bill as passed by the Assembly;
ii. the amended Bill as passed by the Council; or
iii. another version of the Bill.
e. If the Mediation Committee is unable to agree within 30 days of the Bill's
referral to it, the Bill lapses unless the Assembly again passes the Bill, but with
a supporting vote of at least two thirds of its members.
f. If the Mediation Committee agrees on the Bill as passed by the Assembly, the
Bill must be referred to the Council, and if the Council passes the Bill, the
Bill must be submitted to the President for assent.
g. If the Mediation Committee agrees on the amended Bill as passed by the
Council, the Bill must be referred to the Assembly, and if it is passed by the
Assembly, it must be submitted to the President for assent.
h. If the Mediation Committee agrees on another version of the Bill, that version
of the Bill must be referred to both the Assembly and the Council, and if it is
passed by the Assembly and the Council, it must be submitted to the President
for assent.
i. If a Bill referred to the Council in terms of paragraph (f) or (h) is not passed
by the Council, the Bill lapses unless the Assembly passes the Bill with a
supporting vote of at least two thirds of its members.
j. If a Bill referred to the Assembly in terms of paragraph (g) or (h) is not passed
by the Assembly, that Bill lapses, but the Bill as originally passed by the
Assembly may again be passed by the Assembly, but with a supporting vote of
at least two thirds of its members.
k. A Bill passed by the Assembly in terms of paragraph (e), (i) or (j) must
be submitted to the President for assent.
*Continued
26 | P a g e
2. When the National Council of Provinces passes a Bill referred to in subsection (3), the
© K Walker
Bill must be referred to the National Assembly and dealt with in accordance with the
following procedure:
a. The Assembly must
i. pass the Bill;
ii. pass an amended Bill; or
iii. reject the Bill.
b. A Bill passed by the Assembly in terms of paragraph (a) (i) must be submitted to
c. If the Assembly passes an amended Bill, the amended Bill must be referred to
the Council, and if the Council passes the amended Bill, it must be submitted to
d. If the Assembly rejects the Bill, or if the Council refuses to pass an amended Bill
referred to it in terms of paragraph (c), the Bill and, where applicable, also the
amended Bill must be referred to the Mediation Committee, which may agree on
i. the Bill as passed by the Council;
ii. the amended Bill as passed by the Assembly; or
iii. another version of the Bill.
e. If the Mediation Committee is unable to agree within 30 days of the Bill's
referral to it, the Bill lapses.
f. If the Mediation Committee agrees on the Bill as passed by the Council, the Bill
must be referred to the Assembly, and if the Assembly passes the Bill, the Bill
must be submitted to the President for assent.
g. If the Mediation Committee agrees on the amended Bill as passed by the
Assembly, the Bill must be referred to the Council, and if it is passed by the
Council, it must be submitted to the President for assent.
h. If the Mediation Committee agrees on another version of the Bill, that version of
the Bill must be referred to both the Council and the Assembly, and if it is
passed by the Council and the Assembly, it must be submitted to the President
for assent.
i. If a Bill referred to the Assembly in terms of paragraph (f) or (h) is not passed by
the Assembly, the Bill lapses.
3. A Bill must be dealt with in accordance with the procedure established by either subsection
(1) or subsection (2) if it falls within a functional area listed in Schedule 4 or provides
for legislation envisaged in any of the following sections:
a. Section 65(2);
b. section 163;
c. section 182;
d. section 195(3) and (4);
e. section 196; and
f. section 197.
4. A Bill must be dealt with in accordance with the procedure established by subsection (1)
if it provides for legislation
a. envisaged in section 44(2) or 220(3); or
b. envisaged in Chapter 13, and which affects the financial interests of the
provincial sphere of government.
5. A Bill envisaged in section 42(6) must be dealt with in accordance with the
procedure established by subsection (1), except that
a. when the National Assembly votes on the Bill, the provisions of section
53(1) do not apply; instead, the Bill may be passed only if a majority of
the members of the Assembly vote in favour of it; and
b. if the Bill is referred to the Mediation Committee, the following rules apply:
i. If the National Assembly considers a Bill envisaged in subsection
(1) (g) or (h), that Bill may be passed only if a majority of the
members of the Assembly vote in favour of it.
ii. If the National Assembly considers or reconsiders a Bill envisaged
in subsection (1) (e), (i) or (j), that Bill may be passed only if at
least two thirds of the members of the Assembly vote in 27 favour
| P a of
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laurenstn06@gmail.com
 Analyse the composition, purpose and functioning of the mediation committee
s78: Mediation Committee

1. The mediation committee consists of –
a. Nine members of NA elected by Assembly in accordance with procedure
prescribed by rules and orders of the Assembly and results in representation
of parties substantially the same proportion that the parties are represented in
the Assembly; and
b. One delegate from each provincial delegation in NCOP, designated by delegation
2. Mediation Committee has agreed on a version of a Bill, or decided a question, when that
version, or one side of the question, is supported by –
a. At least 5 of the representatives of the NA; and
b. At least 5 representatives of the NCOP
 Which of the two houses of the SA parliament is the strongest

o NA is dominant house
o Its decisions may prevail over those of NCOP if certain requirements are met
o NA cannot exceed its powers and constitutional requirements must be strictly
complied with
o Lower house can pass laws without concurrence/approval of higher house in SA
under present Const.
 How does Const. define Money Bill? What procedure must be followed with a money bill?
s77: Money Bills

1. A Bill is a money bill if it –
a. Appropriates money
b. Imposes national taxes, levies, duties or surcharges;
c. Abolishes or reduces, or grants exemptions from, any national
taxes, levies, duties or surcharges; or
d. Authorises direct charges against the National revenue Fund, except a
Bill envisaged in Sec 214 authorising direct charges
2. A money bill may not deal with any other matter except –
a. A subordinate matter incidental to the appropriation of money;
b. The imposition, abolition or reduction of national taxes, levies, duties
or surcharges;
c. The granting of exemption from national taxes, levies, duties
or surcharges; or
d. The granting of exemption from national taxes, levies, duties
or surcharges; or
e. The authorization of direct charges against the National Revenue Fund
3. All money Bills must be considered in accordance with the procedure
established by Sec 75. An Act of Parliament must provide for a procedure to
amend money Bills before Parliament
o Can only be introduced by Cabinet member responsible for finance (Minister

of Finance)
o Can only be introduced in NA
o Single channel for introduction of money bills = higher degree of
transparency, accountability and efficiency
28 | P a g e

 Inquire into the annual budget bill as a special money bill in terms of Const.
o Two types of money Bill – normal money bill and appropriation bills (parliament
is requested to authorise the raising of taxes and the spending of public funds by
the State)
o Most well-known appropriation Bill – State’s annual national budget
 Prepared and submitted by Minister of Finance in respect of every
financial year
 Preparation involves all departments in gov. and usually presented to Cabinet
before introduction into Parliament
 When presenting budget – minister delivers budget speech after which the
Bill and its schedules are tables
 Bill can only be introduced in NA when house is in sitting
 After introduction – referred to Portfolio Committee on Finance – consider it
for max of 7 days
 No amendments may be considered – motion for the rejection of the budget =
motion of no confidence in executive
 After committee has considered – first reading debate takes place in NA – all
aspects of gov. policies are discussed
 First reading approved – different sections of budget discussed
 After finalisation of sub-divisions second reading takes place
 Approval of second reading – budget = approved
 Referred to NCOP who follow similar procedure
 When both houses have adopted budget – referred to President for assent
 Inquire into constitutional requirements regarding assent to bills by President. Does
President have a veto not to assent a bill passed by parliament?
o Most states require Bill to be approved by head of State – mere formality in
Westminster system or head of state may have substantial veto right
o In SA the following is required:
s79: Assent to Bills

1. The 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.
2. The joint rules and orders must provide for the procedure for the reconsideration of
a Bill by the National Assembly and the participation of the National Council of
Provinces in the process.
3. The National Council of Provinces must participate in the reconsideration of a
Bill that the President has referred back to the National Assembly if—
a. the President’s reservations about the constitutionality of the Bill relate to
a procedural matter that involves the Council; or
b. section 74(1), (2) or (3) (b) or 76 was applicable in the passing of the Bill.
4. If, after reconsideration, a Bill fully accommodates the President’s reservations,
the President must assent to and sign the Bill; if not, the President must either—
a. assent to and sign the Bill; or
b. refer it to the Constitutional Court for a decision on its constitutionality.
5. If the Constitutional Court decides that the Bill is constitutional, the President
must assent to and sign it.
 When does a bill become an act of parliament and when can such an act be enforced?

s81: Publication of Acts
A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and take
29 | P a g e

 Inquire and evaluate the various mechanisms whereby control over the legislative process
is ensued/exercised
o In order to create a system of checks and balances Const. introduces mechanisms:
 Control by the NA/legislative control – s80
 At least 1/3 of NA can apply to CC declaring all or part of an
Act unconstitutional
 Must be within 30 days of president assenting to and signing it
s80: Application by members of National Assembly to Constitutional Court
1. Members of the National Assembly may apply to the Constitutional Court for an
order declaring that all or part of an Act of Parliament is unconstitutional.
2. An application—
a. must be supported by at least one third of the members of the
National Assembly; and
b. must be made within 30 days of the date on which the President assented to
and signed the Act.
3. The Constitutional Court may order that all or part of an Act that is the subject of
an application in terms of subsection (1) has no force until the Court has decided
the application if—
a. the interests of justice require this; and
b. the application has a reasonable prospect of success.
4. If an application is unsuccessful, and did not have a reasonable prospect of success;
the Constitutional Court may order the applicants to pay costs.
 Must not be used to refer Bills to CC to obstruct or delay

the implementation of controversial laws
 Advantage – provide legislature with opportunity to respond to
questions/comments regarding unconstitutionality prior to
commencement. (reviewed before implementation therefore less
likely to strike down on law later)
 Control by the President/executive control
 He/she can refer a Bill back to NA if reservations about its
constitutionality
 Thereafter can refer the Bill to the CC for a decision
 Judicial control over legislative bodies
 Court with necessary jurisdiction can determine whether rule of law
has been enacted by a body with necessary powers, acting within
such powers and in accordance with Const.
 Judicial control – inherent function of courts
 Not absolute – courts are subject to Const. and the law, can’t act
arbitrarily
NB: In SA judiciary has complete control over all laws of parliament and other legislation
30 | P a g e

Theme 2
CHAPTER 13 - PROVINCIAL GOVERNMENT: THE PROVINCES
Introduction
 Identify the three levels/spheres of government in the South African Constitutional system
o 3 levels of gov.
National
Provincial
Local
o Reasons for existence of regional level gov.
 Prevention of concentration of power at national level
 Promotion of involvement & participation of the electorate
 More effective service delivery
 Better management of regional differences between local inhabitants
 Quicker decision making on issues
 Greater sensitivity to local circumstances
 Regional electorate has stronger & more direct control over the regional gov.
& its exercise of gov. authority
o Regional gov. negative side-effects
 Place heavy financial burdens on the state
 Cause conflict between themselves & other levels of gov.
o 1996 const. created a quasi-federal gov. in SA
 Unitary state: central gov. remains the highest state authority
 9 provinces are NOT sovereign
 Constitutionally entrenched division of legislative competencies
 Both national & provincial gov. created by const. & obtain powers from
const.
 Still unitary
 Some federal characteristics with co-operative gov.

Creation of 9 SA Provinces
 Introduction
o SA provinces come from the Union of SA in 1910
o Union was a unitary form of state comprising of 4 provinces (former colonies)
o Provinces exercised authority at regional level over matters entrusted to them
 National gov. still had overriding authority
o Interim const. provided for 9 provinces
 Demarcation of SA regional gov.

o 9 regional govs. Protected by const.
o Resulted from the Commission of the Demarcation of Provinces appointed under the
multi-party negation process
o s103: The Republic has the following provinces …
 Inquire whether the boundaries of the 9 provincial governments in South Africa can be
altered? Substantiate with reference to the Const.
o Yes
o Constitutional amendment required
 ONLY achieved IF 2/3 majority of NA & 6/9 provinces in NCoP support
o Provincial legislature of the affected provinces MUST concur with the decision in the
NCoP
 Inquire whether a provincial government can change its name. Substantiate.

o Provincial legislature MUST request Parliament to do so
 At least 2/3 of the members of the provincial legislature must support
o General accepted that the territory of a province should also include
the adjacent territorial waters & surrounding airspace
 Provincial gov. can only exercise authority in so far as the const.
grants it either exclusive/concurrent legislative authority/if the national
gov. has expressly assigned such power to the province
Provincial Legislative Authority
 Where is provincial legislative authority vested in? Substantiate with reference to the
Const.
o s104
o Vested in provincial legislature
 Inquire & evaluate the legislative powers of the provincial legislature. Substantiate with
reference to the Const.
o s104
o Specifically accorded to them by the const.
o Don’t have any residual legislative powers in SA
o ONLY apply in demarcated provincial territory
32 | P a g e

o Divided into 3 parts:

 Adoption of a provincial const.
 Adoption of provincial laws
 Assignment of powers to local gov.
o Further divided into concurrent & exclusive laws
o Some matters are constitutionally assigned to the provinces
o All provincial legislatures are bound by the national const. & provincial const.
o Legislative authority of the provinces = constitutionally entrenched
 Distribution of gov. authority between provincial & national gov.
is constitutionally regulated
 Inquire whether the national gov. can unilaterally change the legislative powers of
the provinces?
o No
o National gov./provincial gov. may limit the other’s legislative powers/assume
powers outside the powers granted each sphere by the const.
o Dispute over legislative authority will be dealt with under the provisions of the
const. by the judicial authority
 Inquire & distinguish between functional areas of concurrent legislative powers &
exclusive provincial powers
o Exclusive legislative authority = exercise on its own
 Schedule 5
o Concurrent legislative authority = shared with national legislature
 Schedule 4
 System of co-operative gov.
o Const. designed to promote co-operative federalism NOT competitive federalism
o Under const. there’s no rigid distinction between functions of the different spheres of
gov. BUT central gov. plays dominant role
o Residual competencies are conferred EXCLUSIVELY on national gov.
 Directly expressed in const./residual (NOT expressly set out in const.)
o Any legislation passed by national gov. in respect of exclusive provincial
matters WILL BE UNCONSTITUTION & INVALID
 BUT Parliament does have power to intervene in provincial affairs &

can (in some cases) legislate for the province/s
o Since the date of commencement of the const. the provincial legislature has
FULL legislative authority over the areas indicated in the const.
o Const. provides that the President can assign existing laws to the provinces in
respect of matters in which they now have legislative authority (legislative
lacunas could be prevented)
o Province may adopt its own legislation/administer national legislation if & in
so far as that legislation has been assigned to such a province/s in general
o Interim const. = laws had no extra-territorial application UNLESS permitted
by an Act of Parliament
 1996 const. = not contain similar provisions & more flexible approach
to such issues
o Uncertain whether national law that’s been assigned to a province/s becomes a
provincial law that can be amended/repealed by that province/s
33 | P a g e

 Malherbe: in the case of an exclusive legislative authority,

Parliament has lost its legislative authority & the provincial
legislature can deal with the law as it sees fit
 Parliament retains concurrent authority over concurrent laws
o Since the commencement of the const. laws enacted before the const. took
effect remain in force
 After the const. took effect, Parliament & provinces have exclusive &
concurrent legislative powers
 Old laws of Parliament which now fall within the exclusive
legislative authority of the provinces should be assigned to the
provinces which should enact their own legislation on the matter
o An Act of Parliament enacted through parliamentary procedures
CANNOT become a provincial Act through assignment only
 Provincial legislature needs to enact their own legislation through
their own procedures

 Inquire into the legislative responsibility of concurrent legislation and exclusive

legislation
o Exclusive matters = provinces have FULL responsibility
o Concurrent matters = Parliament & provinces SHARE responsibility & MUST
support & supplement each other
o Possible that a province may decide NOT to take up certain responsibilities
which would then remain under the jurisdiction of the national gov.
 Makes it possible for the legislative powers of the provinces to differ
& 1 could have more autonomy than another
o Problematic cases occur where a matter can be classified as BOTH
concurrent & exclusive matter for national gov. ONLY
 Examination of the Act’s social & economic purposes should be
conducted
 Inquire into the extent of the financial powers of a provincial legislature

o ALL provinces LIMITED power
o Entitled to a share of the national revenue of the state
 Name the type of taxes that a province may not impose

o Income tax
o VAT
o General sales tax
o Property rates
o Customs duties
 From what revenue sources are provincial governments financed?

o Inter-Governmental Financial & Fiscal Relations Act
 Equitable distribution of national revenue among ALL spheres of gov.
o No additional revenue generated by the provinces may be deducted from
their general share respectively
o Counter-measure
34 | P a g e

 National gov. NOT obliged to financially compensate provinces

APART from their national share
 All revenue received by a province MUST be paid into a provincial
revenue fund & money from the fund may ONLY be withdrawn in
accordance with an Act of the relevant provincial legislature
 Inquire into the composition & election of provincial legislature. Substantiate with
reference to the Const.
o Very similar to national legislature
o s105: composition & election
 Consists of women & men elected as members in terms of an electoral
system that –
 Prescribed by national legislation
 Based on that province’s segment of the national common
voters roll
 Provides for a minimum voting age of 18 years
 Results in general in proportional representation
 Consists of between 30 & 80 members
 Differs among provinces
 Determined in terms of a formula prescribed by national
legislation
 What is the term of a provincial legislature?

o s108
 5 years
 Dissolved in terms of s109/when term expires
 Premier of province must call & set dates for an election
 Election MUST be held within 90 days of the date of
dissolution/expiry
 Proclamation issued before/after expiry

 Result of election not declared within period referred to in
s190/election is set aside by court
 President by proclamation MUST call & set dates for another
election
 MUST be held within 90 days of expiry period/of the date on
which the election was set aside
 Provincial legislature remains competent to function from the time of
dissolution/expiry until the day before 1st day of polling for next
legislature
 Inquire into the legislative process in the provincial legislatures

o Many procedures applicable are premised on the standard rues that operate on
national level
o Provincial govs. may make own rules & procedures in certain instances
o Introduction of Bills
 s119: Ordinary Bills
 s120: Money Bills
35 | P a g e

 Signing & assenting to Bills is an important control mechanism that

executive authority has over legislative authority
 Although executive body is constitutionally obligated to sign & assent
 to a Bill, there are important checks & balances in place

o Assent to Bills
Premiere of
province MUST
assent to/sign a
Bill passed by
provincial
legislature
If Premiere has
reservations
about the
CONSTITUTIO
NALITY of the
Bill
MUST refer back

to legislature for
reconsideration
If CC decides
the Bill is
constitutional,
the Premiere
must assent to &
sign it
36 | P a g e

o Application by members to CC
 Members of provincial legislature may apply to CC for an order
declaring all/part of a provincial Act is unconstitutional
 An application –
 MUST be supported by at least 20% of the members of the
legislature AND
 MUST be made WITHIN 30 days of the date on which the
Premiere assented to & signed the Act
 CC may order that all/part of an Act that is the subject of the
application in terms of s(1) has no force UNTIL the court has decided
the application if –
 The interest of justice requires this
 Application has a reasonable prospect of success
o Publication
 Assented to & signed by Premiere = Act
 MUST be published promptly
 Takes effect when published/date determined in terms of the Act
o Safekeeping
 Signed copy = conclusive evidence
 Entrusted to CC
Provincial Executive Authority
 Where is executive authority of a province vested?

o s125(1)
 Premiere of province
 How is provincial executive authority exercised?

o s125
 Premiere exercises authority WITH other members of Executive Council
 Implementing provincial legislation
 Implementing all national legislation within the functional areas
listed in schedules 4/5 EXCEPT where the const./Act of Parliament
provides otherwise
 Administering in the province, national legislation outside the
functional areas listed in schedules 4 & 5, the administration of
which has been assigned to the provincial executive in terms of an
Act of Parliament
 Developing & implementing provincial policy
 Co-ordinates the functions of the provincial administration &
its departments
 Province has executive authority in terms of s(2)(b) ONLY to the extent that
the province has the administrative capacity to assume effective
responsibility. The national gov. by legislative & other measures MUST
assist provinces to develop the administrative capacity required for the
effective exercise of their powers & performance of their functions referred
to in s(2)
37 | P a g e

 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 Council
 Subject to s100, the implementation of provincial legislation in a province is
an exclusive provincial executive power
 Provincial executive MUST act in accordance with –
 Const. AND
 Provincial const. IF a motion has been passed for the province
 Inquire into the constitutional powers & functions of premiers

o s126
 A member of the Executive Council of a province may assign any
power/function that is to exercised to perform in terms of an Act
of Parliament/provincial Act to a Municipal Council
 MUST be in terms of an agreement between the relevant
Executive Council member & the Municipal Council
 MUST be consistent with the Act in terms of which the relevant
power/function is exercised/performed AND
 Takes effect upon proclamation by the Premiere
o s127
 Premiere has the powers & functions entrusted to that office by the const. &
any legislation
38 | P a g e

 Premiere is responsible for –

 Assenting to & signing Bills
 Referring a Bill to the CC for a decision on constitutionality
 Summoning the legislature to an extraordinary sitting to conduct
special business
 Appointing commissions of enquiry
 Calling a referendum in the province in accordance with national
legislation
 Inquire into the election, term of office and removal of premiers

o Election of Premiers: s128
 At its 1st sitting AFTER election, & whenever necessary to fill a vacancy, a
provincial legislature MUST elect a woman/man from among its members to
be the Premiere of the province
 A judge designated by the Chief Justice MUST preside over the election. The
procedure is set out in part A of schedule 3 applies
 An election to fill a vacancy MUST be held at a time & date determined by
the Chief Justice BUT no later than 30 days after the vacancy occurs
o Assumption of office: s129
 MUST assume office with 5 days of being elected by swearing &
affirming faithfulness to the Republic & obedience to the const. in
accordance with schedule 2
o Term of office: s130
 Begins when assumes office & ends upon vacancy occurring/when the person
next elected assumes office
 No person may hold office for more than 2 terms BUT when a person is
elected to fill a vacancy, the period between the election & the election of the
next Premiere is NOT regarded as a term
 Legislature of province, by resolution adopted with a supporting vote of at
least 2/3 of members, may remove the Premiere from office ONLY on the
grounds of –
 Various violation of const./law
 Serious misconduct
 Inability to perform the functions of the office
 Anyone who has been removed from office of Premiere in terms of s(3)(a)/
(b) MAY NOT receive any benefits of that office & may NOT serve in any
public office
o Acting premieres: s131
 Const. establishes a system of cabinet gov. at the provincial spheres
 System of majority gov. further imposed as the ruling party normally elects
a Premiere who in turn appoints his/her provincial council
o Executive councils: s132
o Accountability & responsibilities: s133

 Inquire & evaluate the constitutional requirements with regard to provincial supervision of
local government
o s139
 When a municipality cannot/does not fulfil executive obligations in terms
of the const./legislation, the relevant provincial executive may intervene by
taking any appropriate steps to ensure fulfilment of that obligation, including
–
 Issuing a directive to the Municipal Council, describing the extent of
the failure to fulfil its obligations & stating any steps required to
meet its obligations
 Assuming responsibility for the relevant obligation in that
municipality to the extent necessary to –
o Maintain essential national standards/meet established
minimum standards for the rendering of a service
o Prevent that municipal council from taking unreasonable
action that is prejudicial to the interests of another
municipality/to the province as a whole
o Maintain economic unity
 Dissolving the Municipal Council & appointing an administrator
until a newly elected Municipal Council has been declared elected,
if exceptional circumstances warrant such a step
o Requirements of s139 are important to ensure municipalities fulfil their obligations
o All spheres of gov. should resolve disputes according to the principles of co-operative
gov.
o s139 does NOT impose a constitutional obligation on a provincial gov. to provide
funds to local gov. in order for local authority to settle debts
o s140
 Inquire whether a premier of a province can be removed from his/her office on both political
& non-political (legislative) grounds?
o s141: motion of no confidence
 If a provincial legislature, by a vote supported by a majority of its
members, passes a motion of no confidence the province’s Executive
Council EXCLUDING the Premiere, the Premiere MUST reconstitute the
council
 If a provincial legislature by a vote supported by the majority of its
members, passes a motion of no confidence in the Premiere, the Premiere &
other members of the Executive Council MUST resign
o Administration of the provinces forms part of the national public service
 National Public Service Act
o Provinces have limited powers with regards to administration
o Provinces do have the power to appoint staff

Provincial Constitutions
 Inquire whether a province can & must enact Provincial Consts. for each province?
o SA const. allows every provincial legislature to adopt a provincial const.
o Different provisions for provincial institutions are allowed
o CANNOT be inconsistent with national const.
o National const. contains particulars on different gov. institutions in each province
o Can function effectively WITHOUT a const. of its own
 What majority is required for a provincial legislature to pass/amend its Const.?

o s142
 At least 2/3 of members vote in favour of the Bill
 Inquire & evaluate the constitutional requirements regarding the content of provincial consts.
o s143
 A provincial const./constitutional amendment MUST NOT be inconsistent
with the const. BUT may provide for –
 Provincial legislature/executive structures & procedures that
differ from those provided for in this chapter
 The institution, role, authority & status of a traditional
monarch where applicable
 Provisions included in a provincial const./constitutional amendment in
terms of paragraph (a)/(b) of s(1) –
 MUST comply with the values in s1 & with chapter 3
 May NOT confer on the province any power/function that falls –
o Outside the area of provincial competence in terms
of schedules 4 & 5
o Outside the powers & functions conferred on the province by
other sections of the const.
Conflicting National & Provincial Legislation
 Evaluate the constitutional requirements regarding conflicts between national & provincial
legislation – place special emphasis on the conditions set out in s146(2)
o Wherever concurrent legislative authority between levels of gov. provision MUST be
made for a mechanism whereby conflicts between the levels can be resolved
o Duty of judicial authorities
o National laws ONLY prevail over provincial laws enacted over matters of
concurrent legislative competency if they comply with certain requirements
o s146
 Applies to a conflict between national legislation & provincial
legislation falling within a functional areas listed in schedule 4
 National legislation applies uniformly with regard to the country as a whole
prevails over provincial legislation if any of the following conditions is met –

 National legislation deals with a matter that can’t be regulated

effectively by legislation enacted by the respective provinces
individually
 National legislation deals with a matter that, to be dealt with
effectively, requires uniformity across the nation & the national
legislation provides that uniformity by establishing –
o Norms & standards
o Frameworks
o National policies
 National legislation is necessary for –
o Maintenance of national security
o Maintenance of economic unity protection of the common
market in respect of the mobility of goods, services,
capital & labour
o Promotion of economic activities across provincial
boundaries
o Promotion of equal opportunity/access to gov. services
o Protection of the environment
 National legislation prevails over provincial legislation if the
national legislation is aimed at preventing unreasonable action by a
province that –
o Is prejudicial to the economic/health/security interests
of another province/country as a whole
o Impedes the implementation of national economic policy
 When there’s a dispute concerning whether national legislation is
necessary for the purpose set out in s(2)(c) & that dispute comes
before a court for resolution, the court MUST have due regard to the
approval/rejection of the legislation by the NCoP
 Provincial legislation prevails over national legislation in
s(2)/(3) doesn’t apply
 A law made in terms of Act of Parliament/Provincial Act can prevail
only if that law has been approved by the NCoP
 If the NCoP does not reach a decision in 30 days of its first sitting
after a law was referred to it, that law MUST be considered for
all purposes to have been approved by the Council
 If the NCoP does NOT approve a law referred to in s(6) it MUST
within 30 days of its decision forward reasons for not approving
the law to the authority that referred the law to it
o When a conflict between a national & provincial law occurs first see whether
both legislatures acted within their legislative competence before applying s146
 If not, the law would be unconstitutional & invalid
o National legislation will prevail over provincial legislation if national
legislation complies with the requirements of s146
 Party alleging national legislation prevails will have to prove that such
legislation complies with relevant criteria
o s146 doesn’t impose formal conditions/limitations on national/provincial legislation
 Both govs. may freely enact laws
o In SA
 Parliament cannot oust provincial legislative powers over schedule 4 matters
 s146 ONLY invoked when there’s a CONFLICT
o s146 refers to legislation including subordinate legislation
o a regulation may prevail over a law made by an elected legislature – to avoid this –
legislation MUST be approved by NCoP

 Inquire into the constitutional requirements with regard to conflicts between national
legislation & a provision of a provincial constitution
o s147
 Conflicting matter between national legislation & a provision of a
provincial const. with regard to –
 A matter concerning which this const. specifically
requires/envisages the enactment of national legislation, the national
legislation prevails over the affected provision of the provincial
const.
 National legislation intervention in terms of s44(2),
national legislation prevails over provisions of provincial
const.
 A matter within a functional area listed in schedule 4, s146 applies
as if the affected provision of the provincial const. were private
legislation referred to in s146
 National legislation referred to in s44(2) prevails over provincial legislation
in respect of matters within the functional areas listed in schedule 5
 What is the status of legislation that does not prevail over the other in cases of conflict?
o Does NOT invalidate the other legislation
 Becomes inoperative for as long as the conflict remains
o Part of legislation NOT in conflict remains valid & as soon as the conflict is removed
(amendment/repeal) the legislation becomes operative again
o s148: conflicts that can’t be resolved
o s159: interpretation of conflicts

Theme 3
CHAPTER 15 – JUDICIAL AUTHORITY, THE SA COURTS & THE
ADMINISTRATION OF JUSTICE
INTRODUCTION
 Define judicial authority

o The power to resolve disputes through determining what the law is & how it
should be applied to a specific dispute
o Exercised by judicial bodies of a state, which bodies are not & should not be, party
to the disputes before them
o Generally known as courts
 Where is judicial authority of the South African State vested?

o s165
 Vested in the courts
 Courts are independent & subject ONLY to the const. & the law which they
MUST apply impartially & without fear/favour/prejudice
 No person/organ of state may interfere with the functioning of the courts
 Organs of state, through legislative & other measures MUST assist &
protect the courts to ensure the independence, impartiality, dignity,
accessibility & effectiveness of the courts
 An order/decision issued by a court binds all persons to whom & organs
of state to which it applies
 Inquire into the constitutional protection with regard to the independence of the courts
o s165(2)
 Protects the independence of the judiciary
o s165(3)
 No person may interfere with the functioning of the court
o s165(4)
 Protects the dignity of the courts & the offence is still applicable where a
person may be held in contempt of court HOWEVER proceedings could be
carried out with ordinary laws
o The judiciary MAY NOT according to the SoP usurp the function & role of the
legislature
o Principle of judicial independence is not subject to limitation
Matiso
Court stated that by giving meaning & content to the Constitution, the courts & judges will
invariably ‘create law’. This however does not mean that the judiciary should constantly take
part in the creation of laws & rather recognise their function of judicial review as according to
the Constitution.
South African Association of Personal Injury Lawyers v Heath

Importance of the doctrine of SoP especially with regard to the separation of the judiciary from
other branches. The court also held that in view of the important & crucial role the judiciary

required to play in controlling the exercise of powers & upholding the BoR, it was important that
it be, & perceived to be, independent.
Van Rooyen & Others v the State & Others

In relation to the principle of SoP & independence of the judiciary, that courts are not required to
be independent to that same degree. All courts are entitled to basic protection. To see whether a
court is independent & capable of the impartiality discharging its duties an objective test is

Judicial Bodies & Independence
 Distinguish between personal independence and functional independence of judicial officers.

o Personal independence
 Judicial officers who exercise judicial authority
 Appointment, dismissal & general conditions of employment of judicial
officers
 Principle
 Aspects relating to the judicial officers in person should NOT be
arbitrarily controlled by other gov. bodies
 SA const. makes provision for judicial appointments
 Const. also provides that the salary & other benefits of the judicial officers
may NOT be reduced
o Functional independence
 Functional exercise of its powers by the courts
 Objectivity of the courts MUST be protected
 Particular procedures of the courts should NOT be subject to the influence
of other gov. bodies/private pressure groups
 Courts further protected through measures of immunity of judicial officers
& the power to hold someone in contempt of court
Personal independence Functional independence
Independence of judicial officers & people in Independent functioning of the courts &
judiciary judiciary
 Evaluate the constitutional requirements with regard to impartiality of the SA courts

o Should NOT be biased in any way & should apply the law without
favour/prejudice
 Any chance of bias the presiding officers should either
voluntarily/on request recuse themselves from the proceedings
o If judge is disqualified from sitting on the case, non-recusal could be
inconsistent with s34 & s165(2)
 s34: access to courts
 Everyone 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/another independent & impartial tribunal/forum
 s165(2)
 The courts are independent & subject ONLY to the const. &
the law which they must apply impartially & without
fear/favour/prejudice
o Additional constitutional matter within s167(3)
 Since the CC is the highest court in the Republic it is the only court
which has the power to set aside 1 of its judgements/correct an error
made by it
 Court has a duty to act constitutionally & members that are
disqualified do not adjudicate in the case

o Test for recusal founded on apprehension of bias rather than suspicion of bias
 Absolute neutrality can hardly be achieved
 Judges of CC are strong-minded & have own personal
propensities
 Objective test & onus for establishing such bias rested upon applicant
 Reasonable person test as to whether a particular judge would
be biased
President of RSA & Others v SARFU

Recusal application based on the premise that certain members of the court were members of
the same political party to which some of the applicants also belonged. Court held that, seen
objectively, if a reasonable apprehension exists that a judge might be biased, then that judges
should recuse from the case
South African Commercial Catering & Allied Workers Union v I&J Ltd
Court held that 2 considerations had to be taken into account:
1. In considering an application for recusal, the court presumed that the judicial officers
were impartial in adjudicating disputes. This built 2 further considerations:
a. The onus of rebutting the presumption of judicial impartiality was on the applicant
b. The presumption was not easily dislodged. Any rebuttal had to be based on
cogent & convincing factors
2. Absolute neutrality in the judicial context was not required
Impartiality was thus a quality of open-minded readiness to persuasion without unfitting
adherence to either part/to the judges own predilections, preconceptions & personal views
Sager v Smith
Confirmed again that the recusal of a judge raised a constitutional matter in terms of s167 on
the basis of s34
S v Basson
State applied fpr leave to appeal against the refusal of the trial judge to recuse from that case
Take & Save Trading cc v Standard Bank

Matter of when a judge should recuse was raised & again found that the question is if a
reasonable person would see that the judge would not bring an impartial mind to the trial

Access to Courts & Administrative Justice
 Does the South African Constitution protect a right to access to judicial authority? Inquire
also into the extent of such protection.
o SA const. guarantees every person the right to access to judicial authority
o Fundamental part of value-orientated aspect of const.
o Applies in BOTH civil & criminal matters
o Entrenched in s34
 Implies compliance with the following:
 Gov. is obliged to establish appropriate courts/tribunals/forums that
function properly, in order for the right to be exercised
 Exclusion of the jurisdiction of the courts/any other limitation on
access would be unconstitutional, UNLESS such limitations coincide
with the limitation clause
 Every individual has the right to have disputes settled by an
independent court and thus has the claim to having a court which
is impartial
 Where appropriate every person has the right to a fair & public
hearing

The SA Judicial System
 With reference to the Const., inquire into the South African structure of the judicial bodies
o s166: judicial system
CC
SCA
HC
MC
Any other court established/recognised in

terms of an Act of Parliament, including any
court of a status similar to either the HC/MC
o Set out in order of rank according to judicial hierarchy

o Full particulars on the composition & functioning of all courts are NOT included in
the const.
 Normally done in other legislation
Manong v Department of Roads

s16(1) of the Promotion of Equality & Prevention of Unfair Discrimination Act provided that
each HC was in turn also an equality court, this provision did not mean that the equality court was
a HC in any sense & specifically in the sense that it enjoyed the original jurisdiction that the HC
had.
Court confirmed its position & states that the court erred to mention it sat as an equality court
& not as a HC. An equality court is a special court which functions are set out in PEPUDA &
 With reference to the Const., inquire into the constitutional requirements regarding the
composition & functioning of the CC
o s167
 Consists of the Chief Justice of South Africa, the Deputy Chief Justice &
nine other judges.
 A matter before the CC must be heard by at least eight judges.
 The CC —
 Is the highest court of the Republic; and
 May decide—
o Constitutional matters; and
o Any other matter, if the CC grants leave to appeal on the
grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by
that Court, and

 Makes the final decision whether a matter is within its jurisdiction.

 Only the CC may—
 Decide disputes between organs of state in the national/provincial
sphere concerning the constitutional status/powers/functions of any
of those organs of state;
 Decide on the constitutionality of any parliamentary/provincial Bill,
but may do so only in the circumstances anticipated in s79/s121;
 Decide applications envisaged in s80/s122;
 Decide on the constitutionality of any amendment to the Const.;
 Decide that Parliament/the President has failed to fulfil a
constitutional obligation; or
 Certify a provincial const. in terms of s144.
 The CC makes the final decision whether an Act of Parliament/Provincial
Act/conduct of the President is constitutional, & must confirm any order of
invalidity made by the SCA/the HC/a court of similar status, before that
order has any force.
 National legislation/the rules of the CC must allow a person, when it is in the
interests of justice & with leave of the CC —
 To bring a matter directly to the CC; or
 To appeal directly to the CC from any other court.
 A constitutional matter includes any issue involving
the interpretation/protection/enforcement of the Const.
 Inquire into the constitutional requirements regarding the composition, functioning & powers
of the SCA, the HC & MC
o s168: SCA
 Consists of a President, a Deputy President & the number of judges of appeal
determined in terms of an Act of Parliament.
 A matter before the SCA must be decided by the number of judges
determined in terms of an Act of Parliament.
 The SCA may decide appeals in any matter arising from the HC/a court of a
status similar to the HC except in respect of labour/competition matters to
such an extent as may be determined by an Act of Parliament.
 The SCA may decide only—
 Appeals;
 Issues connected with appeals; &
 Any other matter that may be referred to it in circumstances
defined by an Act of Parliament
o s169: HC
 The HCmay decide—
 Any constitutional matter except a matter that—
o The CC has agreed to hear directly in terms of s167(6)(a); or
o Is assigned by an Act of Parliament to another court of a
status similar to the HC; &
 Any other matter not assigned to another court by an Act
of Parliament.
 The HC consists of the Divisions determined by an Act of Parliament, which
Act must provide for—
 The establishing of Divisions, with one/two more seats in a Division;
&

 The assigning of jurisdiction to a Division/a seat with a Division.

 Each Division of the HC —
 Has a Judge President;
 May have one/more Deputy Judges President; &
o Has the number of other judges determined in terms of
national legislation.
o s170: Other Courts

 All courts other than those referred to in s167, s168 & 169 may decide any
matter determined by an Act of Parliament, but a court of a status lower than
the HC may not enquire into/rule on the constitutionality of any legislation/
any conduct of the President.

General Provisions regarding Judicial Officers & Other Matters concerning

the administration of Justice
 Inquire into the constitutional requirements regarding the appointment of judicial officers.
o Clear, proper & accountable appointment
o Different procedures are followed in appointing members of different courts
o Task of legislative & executive authorities to appoint & remove judicial officials
o s174: Appointment
 Any appropriately qualified woman/man who is a fit & proper person may
be appointed as a judicial officer. Any person to be appointed to the CC must
also be a South African citizen.
 The need for the judiciary to reflect broadly the racial & gender composition
of SA must be considered when judicial officers are appointed.
 The President as head of the national executive, after consulting the Judicial
Service Commission & the leaders of parties represented in the NA, appoints
the Chief Justice & the Deputy Chief Justice &, after consulting the Judicial
Service Commission, appoints the President & Deputy President of the SCA.
 The other judges of the CC are appointed by the President, as head of the
national executive, after consulting the Chief Justice & the leaders of parties
represented in the NA, in accordance with the following procedure:
 The Judicial Service Commission must prepare a list of nominees
with three names more than the number of appointments to be
made, & submit the list to the President.
 The President may make appointments from the list, & must advise
the Judicial Service Commission, with reasons, if any of the
nominees are unacceptable & any appointment remains to be made.
 The Judicial Service Commission must supplement the list with
further nominees & the President must make the remaining
appointments from the supplemented list.
 At all times, at least four members of the CC must be persons who were
judges at the time they were appointed to the CC
 The President must appoint the judges of all other courts on the advice of the
Judicial Service Commission.
 Other judicial officers must be appointed in terms of an Act of
Parliament which must ensure that the
appointment/promotion/transfer/dismissal of/disciplinary steps against,
these judicial officers take place without favour/prejudice.
 Before judicial officers begin to perform their functions, they must take an
oath/affirm, in accordance with Schedule 2, that they will uphold & protect
the Const.
o Distinction made between judges & other judicial officers
o s175: appointment of acting judges
 President may appoint a woman/a man to serve as an acting Deputy Chief
Justice/judge of the CC if there is a vacancy in any of those offices/if the
person holding such an office is absent. The appointment must be made on
the recommendation of the Cabinet member responsible for the
administration of justice acting with the concurrence of the Chief Justice, &

an appointment as acting Deputy Chief Justice must be made from the ranks
of the judges who had been appointed to the CC in terms of s174(4).
 The Cabinet member responsible for the administration of justice must
appoint acting judges to other courts after consulting the senior judge of
the court on which the acting judge will serve
 Inquire into the constitutional requirements of the term of office of judicial officers.
o In general limited by age
o s176: terms of office & remuneration
 A CC judge holds office for a non-renewable term of 12 years/until he/she
attains the age of 70, whichever occurs first, except where an Act of
Parliament extends the term of office of a CC judge.
 Other judges hold office until they are discharged from active service
in terms of an Act of Parliament.
 The salaries, allowances and benefits of judges may not be reduced.
o Judges’ Remuneration & Conditions of Employment Act
 s4(1)
 possible to extend a CC judge’s term from 12 to 15 years
 Does the Constitution protect the remuneration of judicial officers?

o Salaries, allowances & benefits of judges not allowed to be reduced
o Security of tenure
 Essential in order to render them independent of possible executive
interference
o s176(3)
 The salaries, allowances and benefits of judges may not be reduced
 Under what circumstances and by which procedures can a judge be constitutionally

removed from office?
o s177: removal
 A judge may be removed from office only if—
 The Judicial Service Commission finds that the judge suffers from an
incapacity/is grossly incompetent/is guilty of gross misconduct; &
 The NA calls for that judge to be removed, by a resolution adopted
with a supporting vote of at least 2/3 of its members.
 The President must remove a judge from office upon adoption of a resolution
calling for that judge to be removed.
 The President, on the advice of the Judicial Service Commission,
may suspend a judge who is the subject of a procedure in terms of
s(1)

Judicial Service Commission & the SA Prosecuting Authority
 Inquire into the role and composition of the Judicial Service Commission.
o Constitutionally protected
o s178:
 There is a JSC consisting of—
 The Chief Justice, who presides at meetings of the Commission;
 The President of the SCA;
 One Judge President designated by the Judges President;
 The Cabinet member responsible for the administration of justice/an
alternate designated by that Cabinet member;
 Two practising advocates nominated from within the advocates’
profession to represent the profession as a whole, & appointed by the
President;
 Two practising attorneys nominated from within the attorneys’
profession to represent the profession as a whole, & appointed by the
President;
 One teacher of law designated by teachers of law at South African
universities;
 Six persons designated by the NA from among its members, at least
three of whom must be members of opposition parties represented in
the Assembly;
 Four permanent delegates to the NCoP designated together by the
Council with a supporting vote of at least six provinces;
 Four persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in the NA; &
 When considering matters relating to a specific Division of the HC,
the Judge President of that Division & the Premier of the province
concerned/an alternate designated by each of them.
 If the number of persons nominated from within the advocates’ or attorneys’
profession in terms of s(1)(e)/(f) equals the number of vacancies to be filled,
the President must appoint them. If the number of persons nominated exceeds
the number of vacancies to be filled, the President, after consulting the
relevant profession, must appoint sufficient of the nominees to fill the
vacancies, taking into account the need to ensure that those appointed
represent the profession as a whole.
 Members of the Commission designated by the NCoP serve until they are
replaced together/until any vacancy occurs in their number. Other members
who were designated or nominated to the Commission serve until they are
replaced by those who designated/nominated them.
 The JSC has the powers and functions assigned to it in the Const. & national
legislation.
 The JSC may advise the national gov. on any matter relating to the judiciary
or the administration of justice, but when it considers any matter except the
appointment of a judge, it must sit without the members designated in terms
of s(1)(h) & (i).
 The JSC may determine its own procedure, but decisions of the Commission
must be supported by a majority of its members.

 If the Chief Justice/the President of the SCA is temporarily unable to serve on

the Commission, the Deputy Chief Justice/the Deputy President of the SCA,
as the case may be, acts as his/her alternate on the Commission.
 The President & the persons who appoint/nominate/designate the members of
the Commission in terms of s(1)(c), (e), (f) & (g), may, in the same manner
appoint/nominate/designate an alternate for each of those members, to serve
on the Commission whenever the member concerned is temporarily unable to
do so by reason of his/her incapacity/absence from the Republic/for any other
sufficient reason.
o Ensures proper & fit persons are submitted for appointment as judicial officers
o Stringent control over such officers is exercised
o Promote legitimacy of judiciary
 Giving members of political branches of gov. a role to play in appointment of
judges while balancing & promoting the independence & impartiality of
judicial officers
o Ensure a durable, independent, effective & general accepted judiciary
 What institution is responsible for the institution of criminal proceedings on behalf of the
state?
o National Prosecuting Authority
 Power to institute criminal proceedings on behalf of the State
 Fulfil other incidental functions applicable to the institution of
criminal proceedings
 Exercise its functions without fear/favour/prejudice
 Supplements the obligation on gov. to provide for the resolution of disputes
by independent & impartial courts/tribunals/forums
o Minister of Justice
 Exercises final responsibility
 Restricted to oversight of compliance with legal requirements
 Decisions taken by prosecuting authority to prosecute crimes/not
prosecute should be taken without undue interference from
political/executive authorities
o s179: prosecuting authority
 There is a single national prosecuting authority in the Republic, structured
in terms of an Act of Parliament, and consisting of—
 A National Director of Public Prosecutions, who is the head of the
prosecuting authority, & is appointed by the President, as head of the
national executive; &
 Directors of Public Prosecutions & prosecutors as determined by an
Act of Parliament.
 The prosecuting authority has the power to institute criminal proceedings on
behalf of the state, & to carry out any necessary functions incidental to
instituting criminal proceedings.
 National legislation must ensure that the Directors of Public Prosecutions—
 Are appropriately qualified; &
 Are responsible for prosecutions in specific jurisdictions, subject to
s(5).
 National legislation must ensure that the prosecuting authority exercises
its functions without fear, favour or prejudice.
 The National Director of Public Prosecutions—

 Must determine, with the concurrence of the Cabinet member

responsible for the administration of justice, & after consulting the
Directors of Public Prosecutions, prosecution policy, which must be
observed in the prosecution process;
 Must issue policy directives which must be observed in the
prosecution process;
 May intervene in the prosecution process when policy directives are
not complied with; &
 May review a decision to prosecute/not to prosecute, after consulting
the relevant Director of Public Prosecutions & after taking
representations within a period specified by the National Director of
Public Prosecutions, from the following:
o The accused person.
o The complainant.
o Any other person or party whom the National
Director considers to be relevant.
 The Cabinet member responsible for the administration of justice
must exercise final responsibility over the prosecuting authority.
 All other matters concerning the prosecuting authority must be determined by

Judicial Bodies & Aspects of Control
 Inquire into and distinguish between the terms “prior” and “ex-post facto” control, and
“concrete” and “abstract” control.
o Prior control:
 A Bill is reviewable by an appropriate judicial authority BEFORE
its commencement in order to determine its constitutional
consistency
o Ex post facto control:
 Judicial control only AFTER a law has been adopted & implemented
*SA const. provides for BOTH
o Concrete control:
 Consideration of a real dispute before a court
 Basically normal functioning of judiciary
o Abstract control:
 Applies to reviews of a law without the rule being applied in an actual
dispute
 Possible to obtain clarity on the validity of legal rules before such rules are
applied in practice
 Found in various constitutional sections
*SA const. provides for BOTH
 Inquire into and evaluate the ways in which control over the judiciary can be exercised.
o Political control:
 Since legislative & executive organs of state, which represent the people, are
involved in the appointment/removal of judicial officers, several instances of
political control over the judiciary are a reality
o Public control:
 This protection however does NOT exclude all criticism of the courts by
outsiders/media
o Judicial control:
 Certain judicial bodies
 Frequent appeals against/reviews of decisions of lower courts by higher
courts
 Have limited personal immunity

Theme 4
CHAPTER 16 – STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
Public Protector
 s182
o The Public Protector has the power, as regulated by national legislation—
 To investigate any conduct in state affairs/in the public administration in
any sphere of gov., that is alleged/suspected to be improper/to result in any
impropriety or prejudice;
 To report on that conduct; &
 To take appropriate remedial action.
o The Public Protector has the additional powers & functions prescribed by national
legislation.
o The Public Protector may not investigate court decisions.
o The Public Protector must be accessible to all persons & communities.
o Any report issued by the Public Protector must be open to the public unless
exceptional circumstances, to be determined in terms of national legislation,
require that a report be kept confidential.
 Watchdog of state
 Main purpose:
o Independently exercise a measure of control over the Public Administration – all
spheres of gov.
 Tenure:
o s183
 non-renewable
 7 years
 Additional powers found in Public Protector Act
 Intends to provide inexpensive, speedy & practical remedies
 Authority to investigate a claim/wait for a claim to be laid
 Orders remedial action, NA has constitutional obligation
o MUST enforce NB: EFF v Speaker of NA
& Others; DA v Speaker of
NA & Others

SA Human Rights Commission
 s184:
o The SAHRC must—
 Promote respect for human rights & a culture of human rights;
 Promote the protection, development and attainment of human rights;
&
 Monitor & assess the observance of human rights in the Republic.
o The SAHRC has the powers, as regulated by national legislation, necessary to
perform its functions, including the power—
 To investigate & to report on the observance of human rights;
 To take steps to secure appropriate redress where human rights have
been violated;
 To carry out research; &
 To educate.
o Each year, the SAHRC must require relevant organs of state to provide the
Commission with information on the measures that they have taken towards
the realisation of the rights in the BoR concerning housing, health care, food,
water, social security, education & the environment.
o The SAHRC has the additional powers & functions prescribed by national
legislation.
 Control mechanism
o Ensures that there will not be the same issues of the past
 Gov. owes people & people owe people
o Vertical & horizontal application
 Report to Parliament annually
o Must remain politically neutral
o Funded by Parliament NOT executive
 Only true power is to order public apology
o Criticised
 What power does it actually have
 What authority does it have
59 | P a g e

Commission for the Promotion & Protection of the Rights of Cultural,

Religious & Linguistic Communities
 s185: function
o The primary objects of the Commission for the Promotion & Protection of the
Rights of Cultural, Religious & Linguistic Communities are—
 To promote respect for the rights of cultural, religious & linguistic
communities;
 To promote & develop peace, friendship, humanity, tolerance &
national unity among cultural, religious & linguistic communities, on
the basis of equality, non-discrimination & free association; &
 To recommend the establishment/recognition, in accordance with
national legislation, of a cultural/other council/s for a community/ies
in SA
o The Commission has the power, as regulated by national legislation, necessary
to achieve its primary objects, including the power to monitor, investigate,
research, educate, lobby, advise & report on issues concerning the rights of
cultural, religious & linguistic communities.
o The Commission may report any matter which falls within its powers &
functions to the SAHRC for investigation.
o The Commission has the additional powers and functions prescribed by
 s186: composition
o The number of members of the Commission for the Promotion & Protection of
the Rights of Cultural, Religious & Linguistic Communities & their
appointment & terms of office must be prescribed by national legislation.
o The composition of the Commission must—
 Be broadly representative of the main cultural, religious & linguistic
communities in South Africa; &
 Broadly reflect the gender composition of South Africa.
 No specific legislation for this institution
 Not have the force of law

Commission on Gender Equality
 Domestic & internationally

o CEDAW
o International jurisprudence
o SA ratified
 Const. differentiates between sex & gender
o Overlapping between 2 criteria
 Overlapping between SAHRC & CoGE
 Object:
o To promote & protect gender equality
 s187:
o The Commission for Gender Equality must promote respect for gender
equality & the protection, development & attainment of gender equality.
o The Commission for Gender Equality has the power, as regulated by national
legislation, necessary to perform its functions, including the power to
monitor, investigate, research, educate, lobby, advise & report on issues
concerning gender equality.
o The Commission for Gender Equality has the additional powers & functions
prescribed by national legislation.
 Commission of Gender Equality Act
o Gender is not defined

Auditor General
 More of a financial background

 Control over finances & expenditure of gov.
 1st & foremost guardian of public purse
 Ensures public funds are spend according to strict monetary procedures &
accurately accountable
 s188: function
o The Auditor-General must audit and report on the accounts, financial
statements & financial management of—
 All national & provincial state departments & administrations;
 All municipalities; &
 Any other institution/accounting entity required by national/provincial
legislation to be audited by the Auditor-General.
o In addition to the duties prescribed in s(1), & subject to any legislation, the
Auditor-General may audit & report on the accounts, financial statements &
financial management of—
 Any institution funded from the National Revenue Fund/a Provincial
Revenue Fund/by a municipality; or
 Any institution that is authorised in terms of any law to receive money
for a public purpose.
o The Auditor-General must submit audit reports to any legislature that has
a direct interest in the audit, & to any other authority prescribed by
national legislation. All reports must be made public.
o The Auditor-General has the additional powers & functions prescribed by
 s189: tenure
o Fixed, non-renewable term
o Between 5 – 10 years
o If appointed for 6 years, CANNOT be renewed for 4 years
o In order to remain impartial

Independent Electoral Commission
 Elections are important in an open & democratic society

o Free & fair
o Constitutionally provided for
 s190: functions
o The Electoral Commission must—
 Manage elections of national, provincial & municipal legislative
bodies in accordance with national legislation;
 Ensure that those elections are free & fair; &
 Declare the results of those elections within a period that must be
prescribed by national legislation & that is as short as reasonably
possible.
o The Electoral Commission has the additional powers & functions prescribed
by national legislation.
 s191: composition
o The Electoral Commission must be composed of at least three persons.
The number of members & their terms of office must be prescribed by
 Electoral Commission Act
 Serves as check & balance
 Functions
o Educational practices
o Keep admin of voter rolls & parties registered
o Promotion of elections

Independent Broadcasting Authority
 s192:
o National legislation must establish an independent authority to regulate
broadcasting in the public interest, & to ensure fairness & a diversity of views
broadly representing South African society.
 Prevent propaganda
 To comply with const.
o IBAA
o Broadcasting Act
o Communications Authorities of SA Act
 Bodies that regulate what is broadcasted
o BCCSA
o ICASA
 Independent Media Commission
o Regulate political parties
o Limited time slots to avoid monopoly
 Independent Broadcasting Commission

General Provisions
 s193: appointments
o The Public Protector & the members of any Commission established by this
o Chapter must be women or men who—
 Are South African citizens;
 Are fit & proper persons to hold the particular office; &
 Comply with any other requirements prescribed by national legislation.
o The need for a Commission established by this Chapter to reflect broadly the
race & gender composition of South Africa must be considered when
members are appointed.
o The Auditor-General must be a woman/a man who is a South African citizen
& a fit & proper person to hold that office. Specialised knowledge
of/experience in, auditing, state finances & public administration must be
given due regard in appointing the Auditor-General.
o The President, on the recommendation of the National Assembly, must
appoint the Public Protector, the Auditor-General & the members of—
 The SAHRC;
 The Commission for Gender Equality; &
 The Electoral Commission.
o The NA must recommend persons—
 Nominated by a committee of the Assembly proportionally composed
of members of all parties represented in the Assembly; &
 Approved by the Assembly by a resolution adopted with a supporting
vote—
 Of at least 60% of the members of the Assembly, if the
recommendation concerns the appointment of the Public
Protector/he Auditor-General; or
 Of a majority of the members of the Assembly, if the
recommendation concerns the appointment of a member of a
Commission.
o The involvement of civil society in the recommendation process may
be provided for as envisaged in s59(1)(a).
 s194: removal from office
o The Public Protector/the Auditor-General/a member of a Commission
established by this Chapter may be removed from office only on—
 The ground of misconduct/incapacity/incompetence;
 A finding to that effect by a committee of the NA; &
 The adoption by the Assembly of a resolution calling for that
person’s removal from office.
o A resolution of the NA concerning the removal from office of—
 The Public Protector/the Auditor-General must be adopted with a
supporting vote of at least 2/3 of the members of the Assembly; or
 A member of a Commission must be adopted with a supporting vote of
a majority of the members of the Assembly.

o The President—
 May suspend a person from office at any time after the start of the
proceedings of a committee of the NA for the removal of that person;
&
 Must remove a person from office upon adoption by the Assembly of
the resolution calling for that person’s removal
66 | P a g e

Theme 5
CHAPTER 21 – GENERAL PROVISIONS & TRANSITIONAL ARRANGEMENTS
International Law
 Inquire what the constitutional requirements with regard to International agreements are.
o s231
 The negotiating & signing of all international agreements is the
responsibility of the national executive.
 An international agreement binds the Republic only after it has been
approved by resolution in both the NA & the NCoP, unless it is an
agreement referred to in s(3).
 An international agreement of a technical/administrative/executive
nature/an agreement which does not require either ratification/accession,
entered into by the national executive, binds the Republic without approval
by the NA & the NCoP, but must be tabled in the Assembly & the Council
within a reasonable time.
 Any international agreement becomes law in the Republic when it is enacted
into law by national legislation; but a self-executing provision of an
agreement that has been approved by Parliament is law in the Republic unless
it is inconsistent with the Const./an Act of Parliament.
 The Republic is bound by international agreements which were binding on
the Republic when this Const. took effect.
 What is an international treaty?

o Written agreement between states inter se/between states & international
organisations
o Governed by international law
 Inquire and distinguish between bilateral and multilateral international treaties

Bilateral Multilateral
Between 2 states Involves many states
 Do provincial govs. play a direct role in foreign affairs?

o Reserved entirely for national gov.
o Provincial govs. have no powers
 Contemplate the process of ratification of a treaty

o Ratification:
 Act of endorsing the signing of a treaty
o Ratifying state has an opportunity to reconsider the treaty & make changes to
own laws in order to comply with treaty

 Inquire & distinguish between the two approaches followed with regard to the
implementation of international treaties in a country’s domestic law.
Dualist Monist
Distinction is made between the binding force Not require a further act of legislative
of a treaty in international law & in the incorporation before a treaty become part of that
domestic country’s municipal law
law of a country
Provisions of the relevant treaty CANNOT be
implemented until domestic law has been
enacted
 When will an international agreement be binding on the Republic of South Africa?

o SA const. requires Parliament to ratify treaty
 Once Parliament has agreed to the ratification of/accession to a treaty
by resolution = binding on SA
o Some treaties come into force without need for ratification
 SA doctrine of judicial precedent
 Ratification of a treaty is not necessary where an intention to
dispense with ratification can be inferred from the nature of the
treaty & manner in which it was negotiated
 Usually applicable to bilateral treaties/treaties of a
technical/administrative/executive nature
 When will an international agreement become law in the Republic of South Africa?
o Dualist approach
Negotiated & signed by national executive
Parliament must ratify treaties/conve ntions
Specifically incorporated by an Act of Parliament = SA law

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CHAPTER 11 – THE NATIONAL LEGISLATIVE AUTHORITY

Legislative Authority in General

 Definition of legislative authority in general

s43 – Legislative Authority of the Republic

 Explain historical development of the institution of “parliament”

Functions & Composition of Parliament

 Name and explain different functions of modern parliament

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Parliamentary Franchise & Elections

s19 Political rights

 What was the origin of the principle of parliamentary franchise?

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 The court pointed out that Parliament could through legislation,

 Voters had sufficient time to apply for new ID

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 s190 of the Const.

 Difference between constituency system of representation and system of

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 Identify 2 houses of SA parliament and explain purposes (s42)

s46 Composition and Election

o In terms of Electoral Act number of members in NA has been set at 400

s60: Composition of National Council

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 Identify different membership qualifications and disqualifications of the South African

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e. Is absent from the national council of provinces without permission in

 Imperative and Free mandate and which is used in SA

 Explain term of SA parliament

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s50: Dissolution of NA before expiry of its term

 If NA is dissolved, will NCOP also dissolve automatically?

 The national legislative authority is vested in?

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 Evaluate whether authority of parliament can be restricted

s68: Powers of NCoP

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 Where is the seat of parliament? Can the seat be relocated?

s65: Decisions in NCoP

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o A clear or absolute majority – refers again to 50% plus 1 of

s54: Rights of certain Cabinet members and Deputy Ministers in the NA

s66: Participation by members of national executive

s67: Participation by local government representatives

s59: Public access to and involvement in National Assembly

1. The National Assembly must—

lvement in National Council

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 Define the concept “legislative process”

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mber or committee of the NA, may introduce a Bill in the Assembly;

 Inquire and explain the procedure for handling a bill in parliament

s74: Bills amending the Constitution

a. The NA with a supporting vote of at least 75% of its members; and

ii. Alters provincial boundaries, powers, functions or institutions; or

 Evaluate to what extent the const. can be amended?

s75: Ordinary bills not affecting provinces

s76: Ordinary bills affecting provinces

 Analyse the composition, purpose and functioning of the mediation committee

s78: Mediation Committee

 Which of the two houses of the SA parliament is the strongest