CONSTITUTIONAL LAW 202

JUDICIAL AUTHORITY – LECTURE 4

CHAPTER 9 INSTITUTIONS

Compulsory Readings

Constitutional Provisions: Chapter 9 of the Constitution

Textbook: De Vos et al South African Constitutional Law in Context,

Oxford University Press 283-299.

Cases: EFF v Speaker of the National Assembly [2016] ZACC 11;

2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) (Nkandla
judgment)

South African Human Rights Commission v Msunduzi Local

Municipality and Others [2021] ZAKZPHC 35; [2021] 3 All
SA 939 (KZP); 2021 (6) SA 500 (KZP)

Journals: Christina. M ‘The human rights commission et al: what is the

role of South Africa's Chapter 9 institutions?’ (2006) 9(2)
Potchefstroom Electronic Law Journal/Potchefstroomse
Elektroniese Regsblad

1. Slide 2: What/Who are the “Chapter 9” institutions?

 s181(1) of the Constitution

 Derive name from the Constitution

2. Slide 3: Characteristics of Chapter 9 institutions

https://ikamva.uwc.ac.za/access/content/group/6d312956-c4c8-48fb-
bd28-1263b33ecacf/Lessons/2024%20Topic%204%20Judicial%20authority/Lesson
%204/Podcasts_Voice%20notes/Characteristics%20of%20Chap
%209%20institutions.mp3
3. Slide 4: Independence of Chapter 9 institutions

https://ikamva.uwc.ac.za/access/content/group/6d312956-c4c8-48fb-bd28-
1263b33ecacf/Lessons/2024%20Topic%204%20Judicial%20authority/Lesson%204/
Podcasts_Voice%20notes/Independence%20of%20Chap%209%20institutions.mp3
Q: In your own words, explain why the independence of Chapter 9 institutions is different to
judicial independence?

4. Slide 5: Issues with Chapter 9 institutions

Q: Can you provide some examples?

5. Slides 6 -7: Appointment procedure of Chapter 9 personnel

General:
 s193(1) and (2) of the Constitution
 Supported by national legislation relevant to each institution

Appointment of PP and AG:

 s193(3)-(5) of the Constitution
 Specialised procedure as they are specialists

https://ikamva.uwc.ac.za/access/content/group/6d312956-c4c8-48fb-bd28-
1263b33ecacf/Lessons/2024%20Topic%204%20Judicial%20authority/Lesson%204/
Podcasts_Voice%20notes/Appointment%20of%20AG%20_%20PP.mp3

Appointment of other commissioners:

 s193(4) and (5) of the Constitution
 Process regulated by national legislation relevant to the remaining four institutions

https://ikamva.uwc.ac.za/access/content/group/6d312956-c4c8-48fb-bd28-
1263b33ecacf/Lessons/2024%20Topic%204%20Judicial%20authority/Lesson%204/
Podcasts_Voice%20notes/Appointment%20of%20commissioners%20in%20Chap
%209s.mp3

Q: Do you agree with PP/AG being weighed higher than the rest?
Q: Do you think the prioritisation of PP/AG impacts negatively on the rest?

6. Slides 8 to 9: Removal
General:
 s194 of the Constitution
 Supported by national legislation relevant to each institution
 Provide example/s of case/s where grounds were used for a resolution to remove

Removal of PP and AG:

 s194(2)(a) of the Constitution
 In Public Protector Act as well

https://ikamva.uwc.ac.za/access/content/group/6d312956-c4c8-48fb-bd28-
1263b33ecacf/Lessons/2024%20Topic%204%20Judicial%20authority/Lesson%204/
Podcasts_Voice%20notes/Removal%20of%20the%20AG%20_%20PP.mp3

Removal of other commissioners:

 s194(2)(b) of the Constitution
 Also regulated by national legislation relevant to the remaining four institutions

https://ikamva.uwc.ac.za/access/content/group/6d312956-c4c8-48fb-bd28-
1263b33ecacf/Lessons/2024%20Topic%204%20Judicial%20authority/Lesson%204/
Podcasts_Voice%20notes/Removal%20of%20commissioners%20of%20Chap%209s.mp3

7. Slides 10 to 11: The Public Protector

Role and functions of the Public Protector:

 s182 of the Constitution
 Public Protector Act 1994

Q: How do you determine whether there has been good faith or not in the Public Protector’s
investigations/reports?

Plenty more reports on PP website http://www.pprotect.org/?q=content/investigation-reports-

categories

Does the Public Protector have any real powers?

Read the case: Economic Freedom Fighters v Speaker of the National Assembly [2016]
ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) (Nkandla judgment)

Q - What are the facts of this case?

Q - What is the issue?
Q - What was the court’s finding?
Q - What impact did the judgment have in reality?
Q - The principle that was set here – is it being followed currently? Why/why not? Give
examples.

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