CON LAW QUESTIONS

In the First Certification Judgment, what was the Constitutional Court’s response to the
objection that the constitutional text did not provide for a complete separation between
the legislature and the executive? Does the overlap strengthen constitutional democracy?
[106]-[113]
- It is impossible to have a complete separation of powers, it may be sufficient if it
adheres to the basic tenants of the separation of powers doctrine
- The new test was not in conflict with CP VI (requiring a separation of powers
between the legislature, executive and judiciary with appropriate checks and
balances to ensure accountability, responsiveness and openness)
- The principle of SoP anticipated the necessary or unavoidable intrusion of one
branch of government on the terrain of another
- No constitutional scheme could reflect a complete separation of powers: the scheme
was always one of partial separation
- As the SoP doctrine was not a fixed or rigid constitutional doctrine, it was given
expression in many different forms and made subject to checks and balances on
many kinds
- It could thus not be said that a failure in the new test to completely separate the
functions of the executive and legislative by providing for members of executive
government also to be members of legislatures @ all 3 levels was destructive of the
doctrine
o Overlap provided for a singularly important check and balance on the
exercise of executive power by making the Executive more directly
answerable to the elected legislature
- New text contained checks and balances that evidenced a concern for both the over-
concentration of power and the requirements of an energetic and effective
executive
- While strict SoP had not always been maintained there was nothing to suggest that
the Constitutional principles required the adoption of a particular form of strict
separation, such as that found in the USA, France or the Netherlands
- The power of the President to issue pardons, that the power of the President in
terms of s84(2)(j) of the new text to pardon or reprieve offenders and remit any
fines, penalties was not in conflict with the principles of; supremacy of the
Constitution, Separation of powers, independence of the judiciary – if ti did
undermine any provision of the constitution it would be reviewable
o There was no overlap of powers and functions between the President and
the Judiciary
o Courts had never had the function of pardoning and reprieving offenders
after justice has run its course, a function ordinarily entrusted to the Head of
State in many national constitutions

Separation of powers between the legislature and the executive

[106]
- The principal objection is directed at the provisions of the NT which provide for
members of executive government also to be members of legislatures @ all three
levels of government
 - This failure to effect full separation of powers enhances the power of executive
government (particularly in the case of the President and provincial premier),
thereby undercutting the representative basis of the democratic order
[107]
- Objector’s complaint is that members of the Cabinet continue to be members of the
legislature and by virtue of their positions are able to exercise a powerful influence
over the decisions of the legislature
o Complaint was not that there hadn’t been an adequate separation of judicial
powers from the legislative and executive power or that there has not been
adequate separation of the functions between the 3 branches of government
- This is inconsistent with the SoP and cites examples to be followed, USA, France,
Germany and the Netherlands
[108]
- There is however no universal model of SoP and in democratic systems of
government in which checks and balances result in the imposition of restraint by one
branch of government upon another, there is no separation that is absolute
o Example: while in the USA, France and Netherlands members of the
executive may not constitute to be members of the legislature, this is not a
requirement of the German system of SoP
o Different systems of checks and balances that exist in these countries, the
relationship between the different branches of government and the power or
influence that one branch of government has over the other, differs from one
country to another
[109]
- The principle of SoP 1) recognizes he functional independence of branches of
government and 2) the principle of checks and balances focuses on the desirability of
ensuring that the constitutional order, as a totality, prevent the branches of
government from usurping power from one another
- In this sense, it anticipates the necessary or unavoidable intrusion of the branch on
the terrain of another
- No constitutional scheme can reflect a complete separation of powers: the scheme is
always one of partial separation

[110]
- NT 85 and 125 vest the executive power of the Republic in the President and the
executive power of the provinces in the Premiers

[111]
- SoP is not a fixed or rigid constitutional doctrine, it is given expression in many
different forms and made subject to checks and balances of many kinds
- It can thus not be said that a failure in the NT to separate completely the
functionaries of the executive and legislature is destructive of the doctrine
- The overlap provides a singularly important check and balance on the exercise of
executive power
o It makes the executive more directly answerable to the elected legislature

[112]
 - The CA was afforded a large degree of latitude in shaping the independence and
interdependence of government branches
- The model adopted reflects the historical circumstances of our constitutional
development
- We find in the NT checks and balances that evidence a concern for both the over-
concentration of power and the requirements of an energetic and effective yet
answerable executive
- A strict separation of powers has not always been maintained but there is nothing to
suggest that the CPs imposed upon the CA an obligation to adopt a particular form of
strict separation, such as that found in the USA, France or Netherlands

[113]
- What CP VI requires is that there be a separation of powers between the legislature,
executive and judiciary – it does not prescribe what form that separation should take
- We have previously said that the CPs must not be interpreted with technical rigidity
- The language of CP VI is sufficiently wide to cover the type of separation required by
the NT and the objection that CP VI has not been complied with must accordingly be
rejected

Why did the Constitutional Court in Personal Injury Lawyers v Heath decide that the
appointment of a sitting judge as head of the special investigative unit is contrary to the
separation of powers doctrine?
- The CC held that a judicial officer may not be appointed as the head of a criminal
investigation unit
- This is because the power to investigate and prosecute crimes in an executive
function and not a judicial function
o Judge was given power to do things which belong to the executive branch
and the judge should not have actively pursued the matters
- This results in the issue with separation of functions and separation of personnel
principles of separation of powers
o Blurring of functions and personnel = judiciary is overstepping into the
executive’s scope
- This is contrary to the separation of powers doctrine because the doctrine divides
the government into three branches whereby each branch has separate,
independent powers and responsibilities. This ensures that the powers of one
branch are not in conflict with those of other branches

What is the test used by the courts to determine whether Parliament complied with its
obligation to facilitate public involvement in the legislative process?
The court in Doctors for Life International v Speaker of the NA proposed the standard of
reasonableness as the yardstick to test whether Parliament had complied with its obligation
to facilitate public involvement in the legislative process.

Under which circumstances can the National Assembly be dissolved?

S50 of the Constitution of the Republic of South Africa, 1996 (Constitution) deals with
dissolution of the NA. This Act states that the President must dissolve the NA if the
Assembly has adopted a resolution to dissolve with a supporting vote of majority of its
members and it has been three years since the Assembly was elected. The Acting President
must dissolve the NA if there is a vacancy in the office of President and the Assembly fails to
elect a new President within 30 days after the vacancy had occurred.

Explain how membership of the National Council of Provinces is constituted.

S60 of the Constitution

Discuss the different mechanisms available to the National Assembly to hold the National
Executive Authority accountable.
The NA has a distinct power to ensure democratic control over the executive. This is found
in section 89(1) of the Constitution whereby the NA is able to remove the President based
on certain grounds with 2/3 majority. This ensures that the President and cabinet remain
accountable to the NA. The grounds for removal include, a) a serious violation of the
Constitution and the law, b) serious misconduct or c) inability to perform functions of the
office

What are the key differences, as alluded to by Jafta J in EFF 2 between sections 89
and 102 of the Constitution, 1996?
S89 removal is stricter than that of s102. S89 states that removal must be done in terms of a
listed ground and impeachment must be support by 2/3 majority
S102 removal is by a simple majority. This is because impeachment is punitive – president
may lose all benefits and may be barred from occupying any public office

On what basis did Mogoeng CJ accuse the majority of judicial overreach in EFF 2?
- He found that the majority judgement was a textbook case of judicial overreach as it
was a constitutionally impermissible intrusion into the executive domain of
parliament
- He argued that prescribing to the NA to always hold an enquiry and to never rely on
readily available documented or recorded evidential materials to determine the
grounds for impeachment comes down to a judicial overreach
- He found that there is no justification for the adopted position that the requirements
for impeachment must always be established before the motion to remove the
President is debated and voted on
- Grounds for impeachment is a value judgement that members of the NA are
required to and are able to make

Did the Court in United Democratic Party v Speaker of the National Assembly overreach
when it set out a number of factors the Speaker should consider when determining
whether the vote in a motion of no confidence should be via secret ballot?
- The court noted that while election of the president and office-bearers take place via
secret ballot, the constitution is silent on the procedure regarding voting for
removal of president
- The court looks at section 57(1) of the Constitution which provides that the NA may
determine and control its internal arrangements and procedures, and make rules
and orders concerning its business with due regard to representative and
participatory democracy, accountability, transparency and public involvement
- Thus to pass a motion of no confidence, a majority vote of the NA is required
 - The NA may exercise its s57 powers to decide on appropriate voting procedure in
terms of which the motion should be taken; the choice is between an open or secret
ballot = NA can decide which should be used
- Therefore, the speaker can decide to conduct voting via secret ballot
- In terms of rules 103 and 104, the speaker is empowered to have a motion of no
confidence by secret ballot
- The speaker’s determination is guided by the need to allow members to honour
constitutional obligations, members are required to swear their allegiance to the
constitution, rules and laws and not to their political party. In the event of conflict,
their undertaking is to serve the interests of the public – the NA serve the people
- The purpose for which the motion of no confidence exists is accountability

What factors should the Speaker of the National Assembly take into account when
deciding to order a vote of no confidence to take place via secret ballot?
S102 constitution?

The president is both head of state and head of the national executive authority. What is
the difference between these two assignments, and how does one differentiate between
them?
The president as Head of State in terms of the national legislature and is dealt with under
s84(2) of the Constitution.
- The president acts alone and is the leader of the nation
- The functions of the president as the Head of State includes:
o Assenting to and signing bills
o Referring a Bill back to the NA for reconsideration of the Bill’s
constitutionality
o Referring a Bill to the CC for a decision on the Bill’s constitutionality
The president as the Head of the Executive in terms of the national executive and is dealt
with under s85(2) of the Constitution
- The president acts together with the Cabinet
- The functions of the president as the Head of the Executive includes:
o Developing and implementing national policy
o Co-ordinating the functions of state departments and administrations
o Preparing and initiating legislation

On what basis can the president appoint and remove cabinet members? Is the National
Assembly allowed access to the reasons behind any removal?
- NA has the distinct power to ensure democratic control over the executive in terms
of s89(1) whereby the NA can remove the president on specific grounds.
- S91: cabinet
o The president appoints the Deputy Presidents from among the members of
the NA
o May select any number of ministers from among the members of the
assembly
o May select no more than two Ministers from outside the assembly
 - S94: when an election of the NA is held, the Cabinet, the Deputy President and
Ministers remain competent to function until the person elected President by the
next Assembly assumes office

On what basis can the president be removed from office?

- S89(1): NA by a resolution adopted with a supporting vote of at least 2/3 of its
members may remove the president from office only on the grounds of:
o Serious violation of the constitution or the law
o Serious misconduct
o Inability to perform the functions of office

On what basis can members of cabinet be removed from office?

- S102(1): if the NA by a vote supported by a majority of its members, passes a motion
of no confidence in the Cabinet excluding the president, the president must
reconstitute the cabinet

How is the impartiality of judges safeguarded?

- Impartiality meaning that the judges must have no bias towards a decision
- The judges must act in accordance to human right principles which is above
controversy and their own individual feelings
- S v Makwanyane: the courts voted against the death penalty on the basis that it goes
against the right to life but no one would have known what the judge’s personal
views were on the death penalty

What is the role of the Judicial Service Commission (JSC) in the appointment of the Chief
Justice of the Constitutional Court and judges of the high court?
S174(4) Constitution: the other judges of the CC are appointed by the president, as head of
the national executive, after consulting the Chief Justice and leaders of parties represented
in the NA, in accordance with the following procedure:
- (a) the Judicial Service Commission (JSC) must prepare a list of nominees with three
names more than the number of appointments to be made, and submit the list to
the president
- (b) the president may make appointments from the list and must advise the JSC with
reasons if any of the nominees are unacceptable and any appointment remains to be
made
- (c) the JSC must supplement the list with further nominees and the President must
make the remaining appointments from the supplemented list

What is role of the National Assembly in the removal of a sitting judge?

- S177(1)(b): a judge may be removed from office if 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
What is the purpose of the office of the Public Protector, and how has the Public Protector
used the power awarded by the Constitution and applicable legislation to realise that
purpose?
- S182(1)(a)-(c): the public protector has the power as regulated by national legislation
to (a) investigate any conduct in state affairs, or in the public administration in any
sphere of government, that is alleged or suspected to be improper or to result in any
impropriety or prejudice, (b) to report on that conduct and (c) to take appropriate
remedial action
- The public protector has remedial power to tell the president to perform his
functions and to determine the manner in which such power must be exercised
- EFF I: clarifies status of remedial action whereby the remedial action taken by the PP
against the president is binding

On what basis can remedial action taken by the Public Protector be ignored?
- When there is no conflict of interest
- SABS v DA: before the CC decision, many remedial actions were ignored because the
PP did not take it to court

The Electoral Amendment Bill 2023: allows independent candidates to run for office and
they no longer have to be part of a political party
BUT THERE ARE PROBLEMS:
1) An independent candidate wanting to contest in a province would have to obtain
12 000 signatures to get on the ballot whereas a political party only has to acquire
1 000 signatures
2) “Left-over votes” will be distributed to political parties
o If an independent candidate needs 50 000 votes to get a seat in Parliament
and receives 100 000, there are 50 000 leftover votes
o Under this system, the remaining votes will not go to the candidate but will
be distributed among various political parties
o = parties could end up getting seats in Parliament from votes of people who
did not vote for them = unfair and unconstitutional
3) The new Act throws away votes
o For an independent candidate to get a seat in Parliament he/she must get
40 000 votes in one constituency (even if they got 30 000 votes in three
constituencies, the votes would be disregarded and independent candidate
would not receive a seat)
o Problem: votes across constituencies are not counted together
o Unfair that political parties can consolidate votes but independent candidates
cannot
This results in two possible outcomes
1) Individual or group of people challenge the results of the elections in court
2) Many voters may feel like they have been slighted by an unfair system – if your vote
is used to give a seat to a party you did not vote for, how would you feel

Legal remedy: CC should suspend the finding of invalidity until after next year’s election and
essentially give Parliament more time to include independent candidates – but independent
candidates will still be excluded
Justice Alliance of South Africa v President of the Republic of South Africa; Freedom under
Law v President of the Republic of South Africa; Centre for Applied Legal Studies v
President of the Republic of South Africa 2011 (5) SA 388 (CC)
Para 41-59
Background
- All applicants challenge the constitutionality of the law that authorizes the process
by which the term of office of the Chief Justice was extended and if the law is found
to be valid
- S176(1): a CC judge holds office for a non-renewable term of 12 years, or 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
- S8(a): permits the further extension of the term of office of the CJ exclusively
The issues
- The central issue that arises is whether s8(a) of the Act is consistent with s176(1) of
the Constitution
Delegation
- Applicants agree that s8(a) is invalid because it violates the provisions of s176(1) of
the Constitution because its provisions are an impermissible delegation of the
legislative power of Parliament
- As from the language in s176(1), only Parliament is vested with the power to extend
the term of office of a CC judge and without express or implied power to delegate to
another authority, Parliament may not do so
- Applicants look at textual and contextual indicators in s176(1) that show the power
to extend the term of service of judges of this court may not be delegated
- President and Minister argue that s8(a) is part of an Act of Parliament that gives
effect to s176(1) of the Constitution
- S8(a) does not purport to delegate to the President any form of legislative power – it
confer on the President an executive discretion to decide whether to request a CJ to
continue to perform active service and if they agree, to set the period of the
extension
- The question whether parliament is entitled to delegate must depend on whether
the constitution permits the delegation
- S176(1) explicitly refers to an Act of Parliament extending the term – that is a strong
indication that the legislative power may not be delegated by the legislature

Mazibuko v Sisulu 2013

Context
- Mazibuko was the leader of the opposition (DA) in the NA and a tabled vote of no
confidence in terms of s102(2)
- After the motion of no confidence is tabled, it must be sent to the Chief Whips
Forum to be discussed
- The Chief Whips Forum was unable to reach a consensus on the scheduling of the
motion in order for the NA to vote on the motion
- The motion of no confidence then had to be considered by the Program Committee
of the NA
o Committee could not come to an agreement on the scheduling of the vote 
deliberation reached a deadlock
 - The speaker did not have the authority to resolve a deadlock, and the motion of no
confidence was not scheduled for debate  court approached to provide clarity
LQ: whether the rules are inconsistent to the Constitution to the extent that it does not
allow a member of a party to have a vote of no confidence tabled, deliberated and voted
on?

Court’s findings
- CC emphasized the importance of a motion of no confidence
- Primary purpose of MONC: ensure that president and executive are accountable to
the NA = gives effect to separation of power
- Constitutional challenge is that rules are inconsistent with the Constitution as they
fail to provide for the vindication of the entitlement of member of NA provided for in
s102(2) Constitution
- Constitution requires that NA must have a procedure which would allow members to
vote on motion of no confidence and that any member may institute a vote of no
confidence = it serves as an NB mechanism to keep the president in check
- Right in s102(2) is central to deliberative multiparty democracy
- It cannot be the purpose of s102(2) to accept that a motion of no confidence may
never reach the NA except if the majority in a committee deems it so

Courts conclusion
- Declared that the rules are inconsistent with s102(2) of the Constitution to the
extent that it fails to make provision for an unhindered exercise by a MP of the right
to have the assembly schedule, deliberate and vote on a motion of no confidence
- This decision is not a violation of the SoP as the court will not formulate the rules but
is merely saying that the current rules are unconstitutional

Doctors for Life International v Speaker of the NA 2006

Context: the NCOP failed to invite written submissions and conduct public hearings of bills
Issues
1. Nature and scope of Constitution obligation of legislative organ to facilitate public
participation in legislative process and the consequences of failure to comply with
such an obligation
2. To what extent can the court interfere in the process of legislature to enforce the
obligation to facilitate involvement

Court’s considerations and findings

NA fulfilled its requirement of public involvement but the NCOP position had to be
considered in more detail
Infringement on SoP?
- The enforcement of the obligation on parliament to facilitate involvement in
legislative and other processes requires the court to interfere with the autonomy of
the legislative organ of the state
- This infringes on the SoP principle – should the court intervene?
The NCOP duty to facilitate public involvement must be considered in light of:
a) S42(4)
b) Understood within the nature of constitutional democracy
Meaning and scope of duty to facilitate public involvement
- S71(2) sets requirements for public participation
- In ALL cases, the NCOP must act reasonably in carrying out itsduties to facilitate
public involvement
- Reasonably?
o Nature and importance of legislation and intensity of impact on public
o Account must be paid to practicalities such as time and expense – they relate
to the efficiency of the law-making process (this does not justify inadequate
opportunities for public involvement)
o Regard what parliament considers to be reasonable public involvement

Applications of facts: did the NCOP comply with the obligation to facilitate public
involvement in respect of the legislation:
- Traditional Health Practitioners Act? No, why not? Although much interest was
shown, only 6/9 provinces had intended to hold public hearings. The NCOP also did
not invite written submissions, and a very short time frame was made available
- Choice on Termination of Pregnancy Amendment Act? No, why not? The public
indicated interest but only one province conducted a hearing, and another one made
provision for written submissions. The NCOP had failed Constitutional obligation
- Dental Technicians Amendment Act. This act didn’t gain much interest from the
public due to the nature. Therefore, the court was unable to conclude that NCoP
acted unreasonably.
- Conduct of NCOP regarding THP and CTOP invalid

BUT DOES THIS FAILURE BY NCOP TO COMPLY WITH OBLIGATION RENDER THE STATUTE
INVALID? The court is not concerned by the substance but rather the procedure
- Answer depends on the importance of public participation in law-making process
- Constitution established a multi-party system to ensure accountability,
responsiveness and openness

Conclusion
- The obligation to facilitate public involvement is a requirement of the law making
process
- Therefore, the THP and CTOP are declared invalid
- The Dental Technicians Amendment Act and the Sterilisation Amendment Act
dismissed