Constitutional Law, 7th Edition, Rautenbach, Malhe_231213_175157

Rautenbach – Malherbe
Constitutional Law
Seventh Edition
Rautenbach – Malherbe
Constitutional Law
Seventh Edition
by
IM RAUTENBACH
BA LLB (UP) LLD (UNISA)
University of Johannesburg
and
ROXAN VENTER
BCom LLB LLM LLD (UJ)
University of Johannesburg
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© 2018
ISBN 978 0 6390 0434 1
E Book ISBN 978 0 6390 0435 8
Second Edition 1996
Third Edition 1999
Fourth Edition 2004
Reprinted 2006, 2007
Fifth Edition 2009
Reprinted 2011, 2012
Sixth Edition 2012
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Preface
This book can be used in two separate semester courses, namely, Part 1: Introduction
to Constitutional Law in a semester course in which constitutional law in general is
covered, and Part 2: The Bill of Rights in a semester course in which the South African
Bill of Rights is covered. The paragraphs of chapter 10 which deal with the constitu-
tional jurisdiction of the courts and court procedure and orders relating to constitu-
tional matters could be dealt with in the course on the Bill of Rights, because the
provisions of the Bill of Rights constitute the main source of constitutional litigation.
The way in which the material is presented in previous editions has been retained:
main themes and ideas are printed in bold; the explanation of these themes and
ideas in regular print, and more advanced reasoning, information and themes
appear in smaller print. This is done in order to provide lecturers, students and
practioners with material which can be adapted and selected to suit their particular
needs and to fit in with the level at which they prefer to deal with it. The doors to
more advanced levels are kept open and the routes to reach them are indicated.
I M RAUTENBACH
ROXAN VENTER
Johannesburg
November 2018
v
Contents
Page
Preface..................................................................................................................... v
Part 1 INTRODUCTION TO CONSTITUTIONAL LAW
Chapter 1 Law, state and individual .................................................................... 3

1 Law and state....................................................................................................... 3
2 Constitutional law as part of the law .................................................................. 4
3 State and individual ............................................................................................ 6
3.1 General...................................................................................................... 7
3.2 The rule of law.......................................................................................... 8
3.3 The constitutional state............................................................................ 10
3.4 Ubuntu ....................................................................................................... 11
3.5 Bills of rights ............................................................................................. 11
Chapter 2 Historical overview.............................................................................. 13

1 Traditional authorities........................................................................................ 13
2 European settlement .......................................................................................... 13
3 Union .................................................................................................................. 14
4 Republic .............................................................................................................. 15
5 Democratisation.................................................................................................. 16
Chapter 3 Sources of constitutional law.............................................................. 19

1 General................................................................................................................ 19
2 Legislation........................................................................................................... 19
2.1 General...................................................................................................... 20
2.2 Constitutions............................................................................................. 20
2.2.1 The constitution as statutory source of constitutional law ......... 20
2.2.2 The constitution as statute or in a wider sense ........................... 21
2.2.3 Constitutions with higher status than other laws........................ 21
2.2.4 The adoption of constitutions ..................................................... 22
2.2.5 Commencement of a constitution............................................... 26
2.3 The interpretation of constitutions ......................................................... 27
2.3.1 General.......................................................................................... 27
2.3.2 Sources of interpretation – the South African Constitution...... 28
2.4 The influence of the Constitution on the interpretation of other
legislation.................................................................................................. 31
3 Custom ................................................................................................................ 32
3.1 General...................................................................................................... 32
3.2 The Westminster system........................................................................... 33
3.3 Prerogatives and conventions .................................................................. 33
vii
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Chapter 4 Community of people – citizens and foreigners ............................... 37
1 General................................................................................................................ 37
2 Constitutional provisions on citizenship ........................................................... 40
3 Acquisition of citizenship ................................................................................... 41
3.1 Birth .......................................................................................................... 42
3.2 Descent...................................................................................................... 42
3.3 Naturalisation ........................................................................................... 43
3.4 Marriage.................................................................................................... 44
4 Loss of citizenship............................................................................................... 44
5 Resumption and restoration of citizenship ....................................................... 45
6 Citizenship and different levels of government ................................................ 46
Chapter 5 Territory .............................................................................................. 47

1 General................................................................................................................ 47
2 Constitutional provisions on territory ............................................................... 47
3 International law provisions on territory........................................................... 48
4 Exercise of government authority in territory .................................................. 49
5 Subdivision of territory ....................................................................................... 49
Chapter 6 Government authority......................................................................... 53

1 Definitions........................................................................................................... 53
2 Origin of government authority ........................................................................ 57
3 Distribution of government authority ............................................................... 58
3.1 The separation of powers......................................................................... 58
3.1.1 Definition...................................................................................... 58
3.1.2 Separation of powers in Britain, America and South Africa ...... 59
3.1.3 Separation of powers in practice ................................................. 61
3.1.4 Delegated legislation .................................................................... 64
3.1.5 Contribution of the doctrine ....................................................... 64
3.2 Levels of government ............................................................................... 65
3.2.1 Number of levels........................................................................... 65
3.2.2 Functional areas............................................................................ 65
3.2.3 The relationship between levels of government......................... 65
3.2.4 Basis for distinction ...................................................................... 66
3.2.5 Union and federation .................................................................. 67
4 State institutions supporting democracy ........................................................... 69
5 Independent exercise of government authority ............................................... 71
Chapter 7 Legal system, legal personality, symbols and official languages ...... 73
1 Legal system of the state ..................................................................................... 73
1.1 Every state has a peculiar legal system comprising the legal rules that
apply in that state ..................................................................................... 73
1.2 The constitution of a state has a decisive influence on the legal
system of the state..................................................................................... 74
1.3 The nature of the legal system of a state can often be inferred from
the preamble to the constitution............................................................. 74
2 The state as a juristic person .............................................................................. 77
2.1 A legal or juristic person consists of a group of natural persons
recognised by the law as a separate entity ............................................... 77
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2.2 In jurisprudence and legal practice it is, for various reasons, proper
and useful to regard the state as a juristic person .................................. 78
2.3 In South Africa, the state is regarded as a juristic person ...................... 79
3 Symbols of the state ............................................................................................ 80
3.1 Every state has certain symbols ................................................................ 80
3.2 The symbols of a state may take various forms often provided for in
legislation.................................................................................................. 80
4 Official languages ............................................................................................... 81
Chapter 8 National legislative authority.............................................................. 87
1 Legislative authority and bodies ........................................................................ 87
2 Parliament ........................................................................................................... 88
2.1 Representative and responsible government.......................................... 88
2.2 Functions .................................................................................................. 90
2.2.1 Representative function .................................................................. 90
2.2.2 Control function.............................................................................. 90
2.2.3 Conflict-regulation function ........................................................... 90
2.2.4 Judicial and administrative function .............................................. 90
2.2.5 Legislative function ......................................................................... 91
2.3 Composition ............................................................................................. 91
2.3.1 Uni- and bicameral parliaments .................................................. 91
2.3.2 Parliamentary right to vote .......................................................... 92
2.3.3 Electoral systems ........................................................................... 95
2.3.3.1 General.............................................................................. 95
2.3.3.2 South Africa ...................................................................... 96
2.3.4 Political parties ............................................................................. 98
2.3.5 Membership.................................................................................. 100
2.3.6 Qualifications and disqualifications of members of
parliament..................................................................................... 101
2.3.7 Elections........................................................................................ 103
2.3.8 Term.............................................................................................. 105
2.4 Powers ....................................................................................................... 106
2.5 Functioning .............................................................................................. 107
2.5.1 The session.................................................................................... 108
2.5.2 Sittings........................................................................................... 108
2.5.3 Privileges ....................................................................................... 109
2.5.4 Presiding officers and other office-holders................................. 111
2.5.5 Procedure...................................................................................... 111
2.5.6 Instruments of procedure ............................................................ 113
2.5.6.1 Debate............................................................................ 113
2.5.6.2 Proposals and amendments.......................................... 114
2.5.6.3 Decision-making and quorums..................................... 114
2.5.6.4 Questions ....................................................................... 115
2.5.6.5 Order papers ................................................................. 115
2.5.6.6 Committees.................................................................... 115
2.5.6.7 Public participation in legislative procedures ............. 117
2.5.7 The South African legislative process.......................................... 118
2.5.7.1 General ......................................................................... 118
2.5.7.2 Ordinary bills................................................................. 119
2.5.7.3 Money bills .................................................................... 121
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2.5.7.4 Disagreements ............................................................... 123
2.5.7.5 Assent, publication and commencement .................... 125
2.5.7.6 Judicial control over bills .............................................. 127
2.5.7.7 Amendment of the Constitution: entrenchments....... 127
3 Judicial control over legislative bodies .............................................................. 131
Chapter 9 National executive authority .............................................................. 135

1 Executive authority and executive bodies ......................................................... 135
1.1 Executive authority................................................................................... 135
1.2 Executive bodies ....................................................................................... 136
1.3 Responsibility for the exercise of executive authority ............................ 137
1.3.1 General.......................................................................................... 137
1.3.2 Individual responsibility ............................................................... 139
1.3.3 Collective responsibility ............................................................... 139
2 Heads of state and heads of government .......................................................... 140
2.1 Distinction................................................................................................. 140
2.2 Appointment ............................................................................................ 142
2.3 Qualifications............................................................................................ 143
2.4 Oath of office and remuneration ............................................................ 143
2.5 Term of office and removal from office.................................................. 143
2.6 Acting heads of state and heads of government ..................................... 145
2.7 Powers and functions ............................................................................... 146
2.7.1 General.......................................................................................... 146
2.7.2 Statutory powers ........................................................................... 148
2.7.2.1 General .......................................................................... 148
2.7.2.2 Powers which the President exercises as head of
the national executive together with the other
members of the cabinet ................................................ 149
2.7.2.3 Powers which the President does not exercise as
head of the national executive ..................................... 150
2.7.2.4 Additional requirements for the exercise of
certain powers ............................................................... 151
2.7.3 Common-law powers .................................................................... 152
2.7.4 Confirmation of executive acts of a head of state....................... 153
3 Deputy heads of government ............................................................................. 153
4 Ministers .............................................................................................................. 154
4.1 General...................................................................................................... 154
4.2 Appointment and dismissal...................................................................... 155
4.3 Qualifications............................................................................................ 156
4.4 Powers ....................................................................................................... 156
4.5 Deputy ministers....................................................................................... 157
5 Cabinets............................................................................................................... 157
5.1 General...................................................................................................... 157
5.2 Composition ............................................................................................. 158
5.3 Functions and procedures ....................................................................... 158
6 The public service............................................................................................... 159
7 The Constitution and general rules for executive and administrative acts ..... 161
7.1 General...................................................................................................... 161
7.2 The Constitution and empowering legislation ....................................... 162
7.3 Constitutional provisions on delegation ................................................. 163
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8 Control over executive bodies............................................................................ 164
8.1 Public control ........................................................................................... 164
8.2 Parliamentary control and control by institutions supporting
democracy................................................................................................. 165
8.3 Judicial control ......................................................................................... 166
9 Advice to the executive....................................................................................... 168
Chapter 10 Judicial authority............................................................................... 169
1 Judicial authority................................................................................................. 169
2 Judicial bodies – the courts ................................................................................ 170
3 The independence and impartiality of the courts ............................................ 171
3.1 General...................................................................................................... 171
3.2 Personal independence ........................................................................... 172
3.3 Functional independence........................................................................ 174
3.4 Impartiality................................................................................................ 175
4 The right of access to the courts and to fair and public hearings ................... 176
5 Judicial authority over constitutional matters ................................................... 176
5.1 General...................................................................................................... 176
5.2 Jurisdiction in constitutional matters ...................................................... 178
5.2.1 Jurisdiction in respect of bills ...................................................... 179
5.2.2 Jurisdiction in respect of laws that were passed but have not
yet commenced............................................................................. 180
5.2.3 The reservation of decisions on certain constitutional
matters for particular courts ........................................................ 181
5.2.4 The Constitutional Court............................................................. 181
5.2.5 The Supreme Court of Appeal, divisions of the High Court
and other courts................................................................................ 187
5.3 Access to the courts in constitutional disputes ....................................... 187
5.4 Court procedure in constitutional disputes............................................ 188
5.5 Court decisions on constitutional matters .............................................. 189
5.6 Constitutional court confirmations of invalidations............................... 194
6 Control over judicial bodies ............................................................................... 196
6.1 General...................................................................................................... 196
6.2 Political control ........................................................................................ 196
6.3 Public control ........................................................................................... 197
6.4 Judicial control ......................................................................................... 197
Chapter 11 Provincial government...................................................................... 199
1 General................................................................................................................ 199
2 The South African provinces ............................................................................. 200
2.1 Background .............................................................................................. 200
2.2 Demarcation ............................................................................................. 201
2.3 Provincial government institutions.......................................................... 201
2.3.1 Provincial constitutions ................................................................ 201
2.3.2 Legislative authority ..................................................................... 203
2.3.2.1 Composition .................................................................. 203
2.3.2.2 Powers ............................................................................ 204
2.3.2.3 Functioning ................................................................... 215
2.3.3 Executive authority....................................................................... 217
2.3.3.1 General .......................................................................... 217
2.3.3.2 The premier................................................................... 218
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2.3.3.3 The executive council ................................................... 220
2.4 Co-operative government......................................................................... 221
2.5 Status of the provinces ............................................................................. 227
2.5.1 The formal constitutional position.............................................. 227
2.5.2 The situation in practice .............................................................. 229
3 Traditional authorities........................................................................................ 231
Chapter 12 Local government ............................................................................. 233
1 General................................................................................................................ 233
2 Local government in South Africa..................................................................... 235
2.1 Relationship with other spheres of government..................................... 236
2.2 Composition, powers and functioning of local governments ................ 239
2.2.1 General.......................................................................................... 239
2.2.2 Establishment ............................................................................... 240
2.2.3 Composition ................................................................................. 241
2.2.4 Powers ........................................................................................... 242
2.2.5 Functioning .................................................................................. 246
2.3 Categories and types of local government .............................................. 247
Part 2 THE SOUTH AFRICAN BILL OF RIGHTS

Chapter 13 Introduction, process, control.......................................................... 253
1 Introduction........................................................................................................ 253
2 The process to apply the Bill of Rights .............................................................. 255
2.1 The process............................................................................................... 255
2.2 Interpretation ........................................................................................... 256
2.3 Application to the facts ............................................................................ 257
3 Control and enforcement .................................................................................. 258
4 Framework for the discussion of the general provisions and the rights.......... 259
Chapter 14 Interpretation of legislation – Development of common
law and customary law ........................................................................................ 261
1 Interpretation of legislation in conformity with the Constitution when
considering its constitutional validity ................................................................ 261
2 Promoting the spirit, purport and objects of the Bill of Rights through
interpretation of legislation when its constitutionality is not investigated
and the development of the common law and customary law ......................... 266
2.1 The interpretation of legislation ............................................................. 266
2.2 The development of the common law and customary law..................... 267
Chapter 15 Protected persons and institutions................................................... 271
1 Introduction........................................................................................................ 271
2 Natural persons................................................................................................... 271
3 Juristic persons.................................................................................................... 273
Chapter 16 Duties and protected conduct and interests.................................... 277
1 Introduction........................................................................................................ 277
2 The different ways in which duties, and conduct and interests are described
in the Bill of Rights ............................................................................................. 279
3 Protected conduct and interests and the limitation of rights .......................... 281
4 The right not to act............................................................................................. 282
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5 Waiver of rights ................................................................................................... 283
6 Conduct and interests not protected by the Bill of Rights ............................... 287
Chapter 17 Binding effect of the Bill of Rights.................................................. 289
1 The constitutional provisions............................................................................. 289
2 Law....................................................................................................................... 290
3 State organs – general ........................................................................................ 295
4 Legislatures ......................................................................................................... 296
5 Executive and administrative organs ................................................................. 299
6 Judicial organs..................................................................................................... 300
7 Private persons and institutions ......................................................................... 302
Chapter 18 The limitation of rights..................................................................... 309
1 General................................................................................................................ 309
2 The general limitation clause in the South African Bill of Rights ................... 310
2.1 Section 36(1) ............................................................................................ 310
2.2 The requirement that rights may be limited “only in terms of
law of general application” ...................................................................... 310
2.3 The requirement that a limitation must be reasonable and justifiable
in an open and democratic society based on human dignity,
equality and freedom ............................................................................... 314
2.3.1 The balance between the limitation and its purpose ................. 314
2.3.2 The factors which must be taken into account to apply the
test ................................................................................................. 314
3 Specific limitation clauses .................................................................................. 323
4 The limitation of rights by other provisions of the Constitution ..................... 326
Chapter 19 Equality .............................................................................................. 329
1 Section 9.............................................................................................................. 329
2 Protected conduct and interests, and bearers of the right .............................. 329
3 Persons and institutions bound by the right, their duties and
justification for non-compliance with the duties (limitation of the right)...... 331
3.1 Differentiation that does not amount to unfair discrimination ............ 332
3.1.1 Duties ............................................................................................ 332
3.1.2 Justification for non-compliance (limitation of the right)......... 332
3.2 Unfair discrimination............................................................................... 334
3.2.1 Duties ............................................................................................ 334
3.2.2 Justification for non-compliance (limitation of the right)......... 338
3.3 Affirmative action ..................................................................................... 338
4 Particular matters................................................................................................ 340
5 Steps to apply the right ...................................................................................... 344
Chapter 20 Human dignity – Life ........................................................................ 347
1 Human dignity .................................................................................................... 347
1.1 Section 10 ................................................................................................. 347
1.2 Protected conduct and interests, and bearers of the right .................... 347
1.3 Persons and institutions bound by the right and their duties ............... 351
1.4 Justification for non-compliance with the duties (limitation of the
right) ......................................................................................................... 352
1.5 Particular matters ..................................................................................... 353
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2 Life....................................................................................................................... 354
2.1 Section 11 ................................................................................................. 355
2.2 Protected interests and bearers of the right ........................................... 355
2.4 Justification for non-compliance with the duties
(limitation of the right) ........................................................................... 356
Chapter 21 Personal freedom and security – Slavery, servitude, forced
labour – Movement............................................................................................. 359
1 Personal freedom and security........................................................................... 359
1.1 Section 12 ................................................................................................. 359
1.2 Protected conduct and bearers of the right............................................ 359
1.5 Particular matters ..................................................................................... 368
2 Slavery, servitude and forced labour.................................................................. 373
2.1 Section 13 ................................................................................................. 373
2.2 A prohibition of certain practices that impair the conduct and
interests protected by other rights........................................................... 373
3 Movement ........................................................................................................... 373
3.1 Section 21 ................................................................................................. 373
3.2 Protected aspects of free movement ....................................................... 373
Chapter 22 Privacy – Religion, belief and opinion............................................. 375
1 Privacy.................................................................................................................. 375
1.1 Section 14 ................................................................................................. 375
2 Religion, belief and opinion .............................................................................. 383
2.1 Article 15................................................................................................... 384
2.2 Protected conduct and bearers of the rights .......................................... 384
2.4 Justification for non-compliance with the right
Chapter 23 Expression – Assembly – Association and Political rights – Citizenship 389
1 Expression ........................................................................................................... 389
1.1 Section 16 ................................................................................................. 389
2 Assembly .............................................................................................................. 397
2.1 Section 17 ................................................................................................. 397
Contents xv
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3 Association .......................................................................................................... 400
3.1 Section 18 ................................................................................................. 400
3.4 Justification for non-compliance of the right
4 Political rights ..................................................................................................... 403
4.1 Section 19 ................................................................................................. 403
4.2 Political choices ........................................................................................ 404
4.3 Political parties ......................................................................................... 405
4.4 Public office .............................................................................................. 406
4.5 The right to vote in free and fair elections ............................................. 406
5 Citizenship .......................................................................................................... 408
5.1 Section 20 ................................................................................................. 408
5.2 The right not to be deprived of citizenship ............................................ 408
Chapter 24 Trade, occupation, profession – Labour – Environment –
Property............................................................................................................... 409
1 Trade, occupation, profession ........................................................................... 409
1.1 Section 22 ................................................................................................. 409
1.2 Protected conduct and interests and bearers of the right ..................... 409
2 Labour ................................................................................................................. 414
2.1 Section 23 ................................................................................................. 414
2.2 Fair labour practices................................................................................. 415
2.3 Individual rights in respect of trade union and
employers’ organisations.......................................................................... 416
2.4 Rights of trade unions and employers’ organisations ............................ 417
3 Environment ....................................................................................................... 418
3.1 Section 24 ................................................................................................. 418
3.2 Environmental rights ............................................................................... 419
4 Property............................................................................................................... 420
4.1 Section 25 ................................................................................................. 420
4.3 Persons and institutions bound by the right to property ....................... 423
4.4 The duties of those bound by the right and justification
for not complying with the duties ........................................................... 424
4.4.1 The duty not to deprive and justification for not complying
with the duty ................................................................................. 424
4.4.2 The duty not to expropriate without complying with certain
requirements................................................................................. 429
4.4.3 Duties within the context of the unequal distribution of land
and other natural resources in South Africa............................... 433
4.5 Steps to apply the right to property......................................................... 434
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Chapter 25 Housing, health care, food, water and social security –
Children – Education – Language, culture and religion................................... 435
1 Housing, health care, food, water and social security ...................................... 435
1.1 Sections 26 and 27.................................................................................... 435
1.2 Protected conduct and interests and bearers of the rights .................... 435
1.3 Persons and institutions bound by the rights and their duties .............. 436
rights)........................................................................................................ 442
2 Children .............................................................................................................. 445
2.1 General...................................................................................................... 445
2.2 The best interests of children .................................................................. 445
2.3 Other specific children’s rights ............................................................... 450
3 Education ............................................................................................................ 453
3.1 Section 29 ................................................................................................. 453
3.2 The right to education ............................................................................. 453
3.3 Language in education ............................................................................ 455
3.4 Independent educational institutions..................................................... 456
4 Language, culture, and cultural, religious and linguistic communities .......... 457
4.1 Sections 30 and 31.................................................................................... 457
4.2 The rights.................................................................................................. 457
Chapter 26 Information – Administrative action................................................ 459

1 Information......................................................................................................... 459
1.1 Section 32 ................................................................................................. 459
2 Administrative action.......................................................................................... 463
2.1 Section 33 ................................................................................................. 464
2.2 Protected conduct and interests and bearers of the rights .................... 464
2.3 Persons and institutions bound by the right........................................... 465
2.4 Duties of those bound by the rights and justification for non-compliance
with the rights (limitation of the rights) ................................................. 469
2.4.1 The right to lawful administrative action .................................... 470
2.4.2 The right to reasonable administrative action............................ 471
2.4.3 The right to administrative action that is procedurally fair ....... 473
2.4.4 The right to be furnished with written reasons .......................... 474
Chapter 27 Access to courts – Criminal Procedure – The right to enforce

the Bill of Rights ................................................................................................. 477
1 Access to courts ................................................................................................... 477
1.1 Section 34 ................................................................................................. 477
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2 Criminal procedure ............................................................................................ 486
2.1 General...................................................................................................... 486
2.2 Arrested persons....................................................................................... 486
2.3 Detained persons...................................................................................... 487
2.4 Accused persons ....................................................................................... 488
3 The right to enforce the rights in the Bill of Rights ......................................... 492
3.1 Section 38 ................................................................................................. 492
3.2 General...................................................................................................... 492
3.3 The persons who may approach a court ................................................ 492
3.4 “A competent court” and “appropriate relief”........................................ 495
Table of South African cases.................................................................................. 497
Index ....................................................................................................................... 521
Part 1
Introduction to constitutional law
Chapter 1
Law, state and individual
1 Law and state 3

2 Constitutional law as part of the law 4
3 State and individual 6
1 Law and state

Usually, exhaustive definitions of the law are cumbersome and difficult to under-
stand. Short definitions, on the other hand, are more often than not incomplete.
For the purposes of this chapter, the following short definition is used as a point of
departure.
Law consists of enforceable rules which prescribe the way in which people and
institutions should conduct themselves.
Constitutional law consists of legal rules relating to characteristics of “the state”.
What is “a state” and which of its features and of its relations with individuals and
other institutions are regulated by law? The word “state” has different meanings:
• When one talks of “large and small states” and of “mountainous and desert states”,
one actually refers to the territory of a state.
• “Friendly and hospitable states” and “unilingual and multilingual states” refer to
the people living in that territory.
• In the statements “only states are members of the United Nations Organisation”
and “Gauteng is not a state”, the emphasis falls on the independence of states.
• “Common-law, ius civile and socialistic states” refers to the legal systems of states.
• When it is said that “the state raises taxes, makes laws and ensures that the laws
are executed”, reference is made to the authorities in a state that exercise govern-
ment authority.
• When it is said “the state buys a piece of land” or “the state prosecutes somebody
1
for murder and fraud”, a state is referred to as a juristic person.
Every meaning of the word “state” mentioned above, represents a particular feature
or element of a state. In this book, the legal rules that pertain to the elements are
dealt with in separate chapters.
2 3
There can be no state if there are no people who live in a specific territory in which
4
there are government bodies that exercise government authority. There can also be no
________________________
1 For an overview and analysis of the different meanings attached to the term “state” in South
African legislation and case law, see Baxter L “ ‘The State’ and other basic terms in public law”
1982 SALJ 223–226.
2 Ch 4.
3 Ch 5.
4 Ch 6 para 1 and chs 8–10.
3
4 Constitutional Law
state when institutions from outside the territory can freely and on a large scale
5
exercise authority inside the territory – such a territory is not independent. As a state
has its own law-making institutions, every state has a particular legal system.6 In most
states, expression is given to nationhood by particular symbols such as flags, national
7
anthems and national coats-of-arms. In quite a number of legal systems, a state is
8
regarded as a juristic person. In most states, government authority is exercised at
different levels, for example, national, regional and local levels.9 Finally, the legal
system of every state always reflects a particular approach to the relationship between the
10
individual and the government.
This chapter provides an introductory overview of constitutional law as a particular
branch of a legal system.
2 Constitutional law as part of the law

Constitutional law is one of the many branches of law. In this paragraph it is explained
briefly how constitutional law fits in with the legal system as a whole.
(a) The legal rules of a state normally apply within a particular physical space – the
territory of the state.
The rules of law that determine the extent of the territory of a state form part of
constitutional law and the territory of a state is often described in the constitution of
11
a state.
(b) With certain exceptions, the legal rules of a state apply to all persons present in
the territory of that state, irrespective of whether they are citizens or aliens.
The term “citizenship” denotes the members of the permanent population of a
state. In constitutional law, a study is made of the legal rules which regulate the
acquisition and loss of citizenship.12
(c) Rules of law apply to natural persons and juristic persons.
A juristic person consists of a group of natural persons regarded, in partcular cir-
cumstances, as a single entity to which the law applies, for example, a company
which consists of shareholders, and a church which consists of members. A state may
be regarded as a juristic person.13 A major part of constitutional law consists of rules that
regulate the institution, functioning and powers of government bodies which act and
exercise government authority on behalf of the state. These government bodies consist
of legislative, executive and judicial organs of state. Legislative bodies enact legal
rules, executive bodies execute legal rules and judicial bodies resolve disputes
concerning the meaning and application of legal rules. The details of all this is
________________________
5 Ch 6 para 4.
6 Ch 7 para 1.
7 Ch 7 para 3.
8 Ch 7 para 2.
9 Ch 6 para 3.3 and chs 8–12.
10 Para 3.1 below and Part 2.
11 Ch 5.
12 Ch 4.
13 Ch 7 para 2.
Chapter 1 Law, state and individual 5
14
regulated by constitutional law. In most states government authority is also
distributed among different levels of government, for example the national, regional and
15
local levels. The distribution of government authorities among different levels of
government may take many forms. The constitutional law of every state determines
the particulars.
(d) Rules of law are created by custom (common law and customary law), legislative
16 17
actions (legislation or statutory law) and the courts.
Nowadays, legislation is the primary source of legal rules and it is enacted by organs
of the state with legislative authority, for example, parliament, provincial legislatures
and municipalities and in certain instances also executive organs of state. In consti-
tutional law, a study is made of the legal rules which govern the extent of the legisla-
tive powers of government bodies and the way in which they must be exercised. In
systems in which the constitution is a supreme law which is enforced by the courts,
court decisions also constitute an important source of constitutional law.
(e) Rules of law and a legal system are never neutral or value-free; they are always
based on, for example, religious, ethical, social, economic or political convictions.
Legal rules are created by people. Legal rules always reflect the religious, ethical,
moral, social, economic and political convictions of those who have made it. This
also applies to the processes by means of which existing legal rules are being inter-
preted and for processes by means of which we determine the quality of legal rules.
Because legal rules are not value-free, it is not sufficient that we merely study the inter-
pretation and application of existing rules of law in order to better understand the
law. Legal science inevitably also deals with the values reflected both by the content
18
of the law and the way in which it is applied. To the extent that a constitution
contains legal rules, the statement that no legal rules are value free, applies also to
constitutions. Even constitutions which are described as “technical”, “institutional”
or “neutral” are not value-free, because all techniques and institutions are founded
on values and attitudes, whether they are articulated or not.
The South African Constitution expressly articulates specific values.
Section 1 of the Constitution provides that the Republic is one, sovereign,
19
democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human
rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
________________________
14 Ch 6. In the law of persons, a study is made of the beginning and end of the legal personality
of natural persons and the factors that determine their legal status and capacity. In certain
branches of commercial law, the focus is on juristic persons, such as companies, which fulfil a
key role in economic life. In constitutional law, special attention is given to the characteristics
of a state as a juristic person.
15 Ch 6 para 3.3.
16 Ch 3.
17 Ch 10 para 1.
18 “Inevitably” because the values underlying “value-free” jurisprudence can usually be identified
quite easily.
19 See Venter F Constitutional Comparison (2000) 141–143 for a classification of the values in s 1.
(d) Universal adult suffrage, a national common voter’s roll, regular elections, and
a multi-party system of democratic government to ensure accountability, re-
sponsiveness and openness.
The values in section 1 are foundational. They are the bases on which the South Afri-
can state is being built. The Constitutional Court held that although the Bill of Rights
must be interpreted consistently with the values in section 1, these values do not in
20
themselves create enforceable rights. They are being given effect in a great number
of other provisions in the Constitution. It stands to reason that the constitutional
provisions that give effect to aspects of these values must be applied primarily, and
that the values may only be applied directly when such aspects are not covered by
specific provisions.21
The democratic nature of the state is given effect to by the provisions on the right to
vote, elections and the composition of organs of state. The Constitution provides for
both representative democracy in which the voters have the opportunity to assert them-
selves at the ballot box, and for participatory democracy in which the public must be
22
involved regularly and actively in decision-making. “Human dignity” is protected in
the right to human dignity in section 10 of the Constitution; “the achievement of
equality” and “non-racialism and sexism” in the right to equality in section 9; the “ad-
vancement of human rights and freedoms” in all the provisions of the Bill of Rights in
chapter 2; the “supremacy of the Constitution” in sections 2 and 172(1); “universal
adult suffrage” and “regular elections” in the political rights in section 19(2) and (3);
“multi-party system of democratic government” in section 19(1) and the participation
of minority parties in all legislative proceedings in sections 57(2), 116(2) and 160(8).
The principle of legality which the Constitutional Court considers to form part of the
rule of law is given effect to in the supremacy clause in section 2, the Bill of Rights and
all other provisions dealing with the procedural and substantive requirements of state
and private actions and the division of powers amongst organs of state and amongst
levels of government.
The preamble and other provisions of the Constitution also describe specific values,
23
some of which overlap with each other and with the values in section 1. The pream-
ble, for example, refers to the aspiration to establish a society based on democratic
values.
3 State and individual

3.1 General 7
3.2 The rule of law 8
3.3 The constitutional state 10
3.4 Ubuntu 11
3.5 Bills of rights 11
________________________
20 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders
(NICRO) 2004 5 BCLR 445 (CC), 2005 3 SA 280 (CC paras 21 and 23.
21 In several instances in which the Constitutional Court has up to now relied directly on values
in s 1, such reliance has been unnecessary because the matters have been covered by other
provisions of the Constitution. See in respect of the rule of law, para 3.2 below.
22 Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC 1440–1442.
23 See ch 7 para 1.3 in respect of the preamble. See also ss 7(1), 41(1), 152(1), 195(2) and 198.
3.1 General
The law of every state reflects views on how the relationship between the state and
the individual must be regulated and on the values on which the views are based.
As was explained earlier, there cannot be a state without people. Everybody in a state
forms part of that state. “Human dignity”, “equality” and “human rights and free-
dom” as values on which the Republic is founded according to section 1 of the Con-
stitution, imply that individual human beings cannot be viewed as mere small
particles who are in all respects subject to the state. The state does not exists for its
own sake – it exists to serve the people. It is sometimes argued that, in a just legal
system, no conflict of interest can arise between the state and the individual, because
the interests of the state are the aggregate of individual interests; law reconciles all
interests, hence one party is not stronger than another; state and individual actually
comprise a single organic entity. Utopian arguments like these do not detract from
the fact that most of the relationships between the state and an individual are
unequal relationships in which a weaker party has to be protected against a stronger
one. In nearly all cases where theories that obscure the differences between
individual and community interests have been applied, this has resulted in the
impairment of individual rights. It must be accepted as a starting point that the state
and the individuals comprising it are separate entities. Even in the world’s oldest
democracies, organs of state and particular individuals often hold different views on
what is in the best interest of a particular individual and the community as a whole.
Such diverging views may give rise to conflict that legal rules must prevent and resolve
in a just and equitable way.24
Since time immemorial, state and legal philosophy has reflected on the ideal rela-
tionship between organs of state and the individual. The different solutions to this
problem form the basis of the different constitutional and legal systems.
Reflections on the ideal relationship between the state and the individual concern
the composition, powers and functioning of organs of state, as well as the balance
that should exist between common interests and individual interests.
On the one hand, these reflections concern structures and procedures. How should
government bodies be composed, what powers should they have, and how should
they exercise these powers? A substantial part of constitutional law deals with the
composition, powers and functioning of government bodies. Because rules of law
must be fair, the composition, powers and functioning of government bodies do not
concern only effective and efficient management; constitutional law deals also with
the contribution made by organisational and procedural provisions to an equitable
relationship between the state and its inhabitants.
However, the question as to the fairness of rules of law extends further than the
composition, powers and functioning of government bodies. It also deals with the
substantive balancing of state and individual interests by a particular rule of law. Which
limits may be imposed on individual interests (for example, personal freedom) in
order to protect the public interest (for example, public health or national secur-
25
ity)? How far may organs of state go in exercising their authority to protect com-
munity interests? Should limits, apart from the legal rules in respect of the com-
position and procedures of government bodies, be placed on the type of community
________________________
24 Botha H “Democracy and rights: constitutional interpretation” 2000 THRHR 561 581.
25 The rules of criminal law are, for the most part, the result of this balancing of interests.
interests which they may protect and the restrictions they may place on the interests
of the individual?
In addition to the provisions in a constitution on the composition, powers and
procedures of government bodies, constitutional provisions for human rights – a bill
of rights – are the primary way in which principles concerning the relationship be-
26
tween the state and the individual can be turned into positive law. In states without,
or with less, effective constitutional provisions on human rights, other doctrines
27
have been developed, such as the British rule of law, the German concept of a
28 29
constitutional state and the African ubuntu concept.
3.2 The rule of law

Although the rule of law doctrine contains principles which have formed part of
English law since the thirteenth century, it was only in 1885 that Dicey used the term
“rule of law” in his work Introduction to the Study of the Law of the Constitution. Accord-
ing to Dicey, the doctrine entailed the following:
• Nobody may be deprived of rights and freedoms through the arbitrary exercise
of wide discretionary powers by the executive – it may only be done by ordinary
courts deciding that a person has breached a legal rule.
• Nobody is above the law and everybody is subject to the jurisdiction of ordinary
courts.
• In Britain the rights of individuals are protected by decisions of ordinary courts
30
and not by guarantees contained in a constitution.
Since 1885, Dicey’s principles have been analysed, interpreted and reformulated by
many writers. In the sixties, they were also discussed by various South African
writers.31 The basic principles, as formulated by Dicey, are still being emphasised.
For instance, in 1964, Mathews32 provided the following summary: “(i) in a decent
society the idea that the state should wield arbitrary power over the individual is
unthinkable; (ii) all persons, including government officials, are equally responsible
to the law; (iii) effective judicial remedies afford the individual greater protection
than constitutional declarations.” The rule of law doctrine contains important prin-
ciples concerning the procedure to be followed by government bodies when
individual rights are limited. However, as it chiefly concerns the procedure to be
followed by the executive when restricting rights, the rule of law normally does not
________________________
26 See para 3.5 and Part 2 below.

27 Para 3.2 below.
28 Para 3.3 below.
29 Para 3.4 below.
30 Dicey’s third principle was inferred from a comparison between the positions in Britain and
elsewhere in Western Europe, where various constitutions contained extensive bills of rights
without effective mechanisms for their enforcement. It is now generally accepted that a judi-
cially enforceable bill of rights provides better protection to the individual than a system in
which the “sovereignty of parliament” forms the basis of constitutional law. An extensive de-
bate on the desirability of introducing a bill of rights is taking place in Britain as well. See, eg,
Jaconelli L Enacting a Bill of Rights (1980); Zander M A Bill of Rights (1985).
31 Eg, by Beinart B “The rule of law” 1962 Acta Juridica 99; Mathews A “A bridle for the unruly
horse?” 1964 SALJ 312; Schreiner OD The Contribution of English Law to South African Law; and
the Rule of Law in South Africa (1967) and Sanders AJGM “Die rule of law – ’n gemeenskaplike
Westerse gedragskode” 1971 THRHR 164 and 284. For a survey, see Carpenter G Introduction to
South African Constitutional Law (1987) 84–92.
32 Mathews A “A bridle for the unruly horse?” 1964 SALJ 316.
contain guidelines concerning the substantive balance to be maintained when the
state limits individual rights for the protection of community interests (even when
the correct procedure is being followed). British constitutional law leaves decisions
on these matters to be decided by the “sovereign” parliament.
Section 1 of the South African Constitution describes the rule of law as one of the
values on which the Republic is founded. It is a value that underlies “an open and
democratic society based on human dignity, equality and freedom” and it must be
33
promoted when interpreting the provisions of the Bill of Rights.
As a value the rule of law is manifested in various rights and other provisions of
the Constitution. The Constitutional Court has referred to the rule of law in respect
of the right not to be deprived of personal freedom arbitrarily and without just cause
34 35
and not to be detained without trial, the independence of the judiciary, the prin-
36
ciple against self-help and the principle that legislatures and executives may exer-
cise no power and perform no function beyond those conferred upon them by law
37
(formal legality). The Constitutional Court, apart from stating that the rule of law
means that all government authority must be exercised in terms of existing legal
rules (so-called formal legality or ultra vires in the narrow sense of the word), also
held that even when government authority is indeed exercised in terms of an exist-
ing legal rule, the contents of the action must also comply with certain requirements
(so-called substantive legality). The requirement which the court has developed in
respect of the contents of the action is not a strict requirement. It is merely required
that that action (a) must serve a legitimate purpose and (b) must be capable of
contributing something towards achieving the purpose. This test is known as the
rational relationship test.38 In most instances in which the Constitutional Court has,
up to now, applied the rule of law as a value in section 1 directly, such application
was unnecessary because the issues concerned were covered by other constitutional
provisions. Although there can be no doubt about the fact that all legal rules are
based on values, the uninhibited application of the rule of law as a value rather than
the other constitutional provisions that give effect to it, could eliminate the integrity
and ultimately the legitimacy of the other provisions.
Up to now, the Constitutional Court has applied a rule of law or legality principle to
various instances. 39 These instances, which are discussed elsewhere in the book more
extensively, are the following:
(a) The court held that statutes which regulate the exercise of certain rights (for ex-
ample, the right to vote and the right to occupational freedom) do not limit those
rights. Requirements for the limitation of these rights can therefore not be applied,
________________________
33 S 39(1)(a) of the Constitution.

34 S 12(1)(a) and (b). De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 SA 785 (CC) para 43.
35 S 65. De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 SA 785 (CC) para 59; S v Van Rooyen
2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 17.
36 Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC), 2000 1 SA 409 (CC paras 11 and 17.
37 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 12 BCLR
1458 (CC), 1999 1 SA 374 (CC) paras 56–58. Michelman FI “The rule of law, legality and the
supremacy of the Constitution” (2005) in Woolman et al Constitutional Law of South Africa
(2nd ed) para 11.2(b)(ii) observes that to the extent that formal legality means compliance
with the law, legality as part of the constitutional rule of law principle implies that the Constitu-
tional Court has jurisdiction in all conceivable matters that might be considered by any court.
38 See the references in n 40–43 below.
39 See Rautenbach IM “Means-end rationality in constitutional court judgments” 2010 TSAR 768.
but the rule of law requires that such statutes must be rationally related to a legitimate
government purpose.40
(b) The court held that certain actions of the President do not constitute “administra-
tive action” for the purposes of the application of the right to just administrative ac-
tion, but that these actions must, in terms of the rule of law, be rationally related to a
legitimate government purpose.41
(c) The court held that even when Parliament adopts a constitutional amendment
according to the procedure prescribed in the Constitution,42 the rule of law requires
that the amendment must be rationally related to the purpose of the amendment. 43
3.3 The constitutional state

To an even greater extent than the rule of law, the German concept of the
constitutional state (Rechtsstaat) represents everything that is “good” in statecraft and
public law. The concept includes the separation of powers, enforceable guarantees
in respect of individual rights, the supremacy of the constitution, the principle of
44
legality, legal certainty, access to independent courts and multi-party democracy. In
any state without a bill of rights these principles provide a useful framework for
analysing positive law. Any democratic constitution with enforceable human rights
provisions should contain these principles. However, as soon as a state adopts a
justiciable constitution containing either the principle as such, or some of its facets,
45
they then become enforceable law.
The preamble to the South African Interim Constitution stated that a need existed
to create a democratic constitutional state. The Constitution does not refer to a con-
stitutional state. However, all the principles of the constitutional state concept are
________________________
40 New National Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191
(CC) paras 19, 20 and 24; Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529
(CC), 2005 3 SA 247 (CC) para 100. South African Diamond Producers Organisation v Minister of
Minerals and Energy 2017 10 BCLR 1303 (CC), 2017 6 SA 331 (CC) para 65. See ch 24 para 1.4
below. The court has even applied a rational relationship test in addition to its application of
the general limitation clause – Law Society of South Africa v Minister of Transport 2011 2 BCLR 150
(CC) 2011 1 SA 400 (CC) paras 32 and 37.
41 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) para 148; Pharmaceuti-
cal Manufacturers Association of SA: in re ex parte President of the RSA 2003 3 BCLR 241 (CC), 2000
2 SA 674 (CC) paras 85 and 86.
42 See ch 8 para 2.5.7.6(e).
43 Merafong Demarcation Forum v President of the RSA 2008 10 BCLR 969 (CC), 2008 5 SA 171 (CC)
paras 62, 114; Poverty Alliance Network v President of the RSA 2010 6 BCLR 520 (CC) para 65.
44 For analyses of the concept, see Venter F “The emergence of South African constitutionalism”
in Van der Schyff G (ed) Constitutionalism in the Netherlands and South Africa: A Comparative Anal-
ysis 43 (2008) 25–44; Venter F Constitutional Comparison (2000) 47–51; Van Wyk DH “Suid-
Afrika en die regstaatidee” 1980 TSAR 153; Böckenförde E-W State, Society and Liberty (1991)
47–70; Van Wyk DH “Die regstaat as konstitusionele model: leidrade vir ’n nuwe konstitu-
sionele bedeling vir Suid-Afrika” in Jacobs S (ed) ’n Nuwe Grondwetlike Bedeling vir Suid-Afrika
(1981) 53–60; Morin JY “The rule of law and the Rechtsstaat concept: a comparison” in
McWhinney E et al Federalism-in-the-Making (1992) 60–86; Wiechers M “Grondslae van die mod-
erne Rechtsstaat” 1998 THRHR 624.
45 Various provisions of the German Constitution contain elements of the constitutional state
concept. For a survey see Jarass HD and Pieroth B Grundgesetz für die Bundesrepublik Deutschland
(2002) 509 ff. The German courts regard the concept as an entrenched constitutional princi-
ple from which obligations for, and restrictions on, government bodies may derive which are
not otherwise expressly prescribed by the Constitution. BVerfGE 20, 331. For examples, see Jarass
HD and Pieroth B Grundgesetz für die Bundesrepublik Deutschland (2002) 535–541.
contained in the Constitution and are reflected in decisions of the Constitutional
46
Court.
3.4 Ubuntu
The Constitutional Court referred to ubuntu as a concept which underlies the Con-
stitution.47 It was stated:
“It recognises a person’s status as a human being, entitled to unconditional respect,
dignity, value and acceptance from the members of the community such person hap-
pens to be part of. It also entails the converse, however. The person has a correspond-
ing duty to give the same respect, dignity, value and acceptance to each member of
that community. More importantly, it regulates the exercise of rights by the emphasis
it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.”48
In S v Makwanyane the court characterised the concept as synonymous with humane-
ness, social justice and fairness, the rehabilitation of offenders and the maintenance
of law and order, and the opposite of victimisation, heinous crimes and cruel and
inhuman treatment.49 It has been noted that ubuntu “gives expression to . . . a
biblical injunction that one should do unto others as he or she would have them to
do unto him or her” and embodies “law, order, generosity, peace and common
50
decency”.
3.5 Bills of rights

A bill of rights consists of provisions in a constitution that define rights and set limits
to the limitation of the rights. As a bill of rights normally forms part of the con-
stitution of a state, it constitutes an important theme of constitutional law. However,
a bill of rights affects all aspects of law. The introduction of a justiciable bill of rights
has been the most far-reaching general law reform initiative that has ever been
undertaken in South Africa. The Bill of Rights in the South African Constitution is
discussed in Part 2.
________________________
46 All the elements which according to Venter F “The emergence of South African constitutional-
ism” in Van der Schyff G (ed) Constitutionalism in the Netherlands and South Africa: A Comparative
Analysis 43 (2008) 43) have been described by the Constitutional Court as elements of the con-
stitutional state are provided for directly or indirectly in various provisions of the Constitution.
47 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 130–131, 223–227, 237,
307–313 and 516. The postscript of the Interim Constitution also referred to the concept.
48 S v Makwanyane para 224. See also Mqeke RB “Customary law and human rights” 1996 SALJ
364; Kroeze I “Doing things with values II: the case of ubuntu” 2002 Stell LR 252; Malan K “The
suitability and unsuitability of ubuntu in constitutional law – inter-communal relations versus
public office-bearing” 2014 De Jure 231; Metz T “Ubuntu as a moral theory and human rights
in South Africa” 2011 African Human Rights Law Journal 532. Mokgoro Y “Ubuntu and the law in
South Africa” Konrad Adenauer Stiftung Constitution and Law (1997) 52.
49 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 224, 225, 237, 243 and 250.
50 The Citizen 1978 (Pty) Ltd v McBride 2011 8 BCLR 816 (CC), 2011 4 SA 191 para 218. For
references to ubuntu in Constitutional Court judgments, see Everfresh Market Virginia (Pty) Ltd v
Shoprite Checkers (Pty) Ltd 2012 3 BCLR 219 (CC) para 71 n 18.
Chapter 2
Historical overview
1 Traditional authorities 13
2 European settlement 13
3 Union 14
4 Republic 15
5 Democratisation 16
1 Traditional authorities
Before the first European settlement in Southern Africa, the inhabitants of the
territory were not organised constitutionally within a framework comparable to that
of a modern state. As in Europe before the sixteenth century, the modern concept of
a state, with a permanent and demarcated territory, did not play any significant role.
There were, nevertheless, a variety of authorities comparable to government struc-
tures elsewhere in the world before the inception of states as we know them today.
Due to the occupation of the country by the Europeans, new government structures
were gradually introduced and the original institutions began to forfeit their author-
ity over the people under their jurisdiction. However, the indigenous or traditional
structures, and the authority exercised within that framework, never disappeared
1
completely. Through the years, the existence of traditional institutions was recognised
by law and, as explained in paragraph 3 of chapter 11, some of these traditional struc-
tures still have a constitutional function.
2 European settlement
At the beginning of the seventeenth century, the Dutch parliament delegated its
authority over foreign territories to the Dutch East India Company. The supply
depot founded at the Cape in 1652 fell under the jurisdiction of the headquarters of
the company in Batavia. Subject to the authority of the Dutch parliament, and of the
management of the company in the Netherlands and in the East, the legislative,
executive and judicial authority of the Cape vested in the Governor-in-council and
was executed according to orders from Batavia or the Netherlands. Beginning in
1682, local government institutions were established in rural districts, and in 1685
2
the judicial function was entrusted to a council of justice.
Initially, after the second British occupation of 1806, the Cape Colony was gov-
erned only by the Governor. In 1833, a legislative council of officials was created.
Directly-elected municipal councils have existed since 1834. In 1853, a directly-
elected bicameral parliament was introduced (representative government) and,
from 1872, the principle was applied that the members of the executive had to enjoy
________________________
1 See in this regard Myburgh AC Die Inheemse Staat in Suider-Afrika (1986); De Vos P and Freed-
man W (eds) South African Constitutional Law in Context (2014) 5.
2 Hosten WJ, Edwards AB, Nathan C and Bosman F Introduction to South African Law and Legal
Theory (1995) 339.
13
the support of the majority in parliament (responsible government). All white adult
males enjoyed the franchise subject to certain educational and economic qualifications.
After 1836, the Voortrekkers introduced various constitutional arrangements in
the northern territories. After the British occupation of Natal in 1842, a legislative
assembly for the territory was established in 1856 and a bicameral parliament was
established only in 1893. Subject to qualifications, everybody enjoyed the vote.
According to Wiechers the salient features of the Constitutions of the Free State
3
and Transvaal republics of 1854 and 1858, respectively, were the following:
“In both Republics the highest legislative authority was vested in an assembly, the
members of which each represented a constituency. In both Republics the president
was not a member of the assembly and was elected in a separate election from that for
the assembly. In the Orange Free State the president was the head of the executive.
There was an executive council, but its powers were insignificant and the president was
not obliged to follow the advice of the council. In the Transvaal executive authority
was exercised by an executive council, and only in 1889 was it provided that executive
authority vested in the president.”
Only whites had citizenship and voting rights. From 1902 to 1910, the Free State and
Transvaal were British colonies with more or less the same government institutions
as the Cape and Natal.
3 Union
4
The South Africa Act of 1909, which had been prepared by a National Convention
and adopted by the British parliament, introduced government institutions of
British design for the whole of South Africa. The act provided for a bicameral
parliament consisting of a directly elected House of Assembly and a partly directly
elected and partly nominated Senate. The cabinet had to enjoy the support of the
majority in the House of Assembly and all British conventions applicable to the
relationship between the king, prime minister, cabinet and lower and upper houses,
were followed more or less unchanged in relation to the corresponding South
African institutions. As a compromise between the proponents of a federation and
of a union, a provincial system was introduced which afforded a certain measure of
autonomy to the four former colonies. However, the provinces were subject to the
overriding authority of the central parliament. Voting qualifications in the former
colonies were retained, although only whites could be elected as members of the
House of Assembly and the Senate. The franchise provisions in the Cape and the
equal status of English and Dutch as official languages could be amended only by a
two-thirds majority in a joint sitting of the House of Assembly and the Senate. In
1929, Afrikaans was also recognised as an official language.
In 1910, the legislative and executive authority of the Union was, in many respects,
still subject to the legislative and executive authority of the United Kingdom. From
1919, when the Union was a party to the Peace Treaty of Versailles, and became a
member of the League of Nations, South Africa and other former colonies, such as
Canada and Ireland, attempted to have these restrictions rescinded. This happened
in the Statute of Westminster of 1931, in terms of which the British parliament relin-
quished all legislative authority over these former colonies. The Union of South Africa
________________________
3 Wiechers M VerLoren van Themaat Staatsreg (1981) 196. Own translation. See also Scholtz GD
Die Konstitusie en die Staatsinstellings van die Oranje-Vrystaat 1854–1902 (1937); De Vos P and
Freedman W (eds) South African Constitutional Law in Context (2014) 6-7.
4 Edw VII, C 9.
Chapter 2 Historical overview 15
confirmed this independent status by the adoption of the Status of the Union Act 69
of 1934. The last significant constitutional link to the United Kingdom was severed
when the right of appeal to the British Privy Council against decisions of the South
African supreme court was abolished by Act 16 of 1950.
From 1910, the administration of matters pertaining to blacks had been vested in
the Governor-General. Extensive arrangements in this regard were made in the
Black Administration Act 38 of 1927. Section 25 of this act granted to the Governor-
General full legislative power in respect of black affairs. Since the previous century,
there existed in Transkei forms of local and tribal self-government and, in 1930, a
joint council for the whole territory was established. In 1936, provision was made for
the representation of blacks by white senators, and black Cape voters were put on a
separate voters’ roll for the election of white members of the House of Assembly and
the Cape provincial council in the Representation of Blacks Act 12 of 1936 which
was adopted by a two-thirds majority in the House of Assembly and Senate. Provision
was also made for a national representative council for blacks with advisory functions
only. The council was abolished in 1951. All existing laws on South African citizen-
ship were consolidated in the South African Citizenship Act 44 of 1949.
During the fifties, the so-called “constitutional crisis” occurred in which the Ap-
peal Court invalidated two acts of parliament which amended the entrenched provi-
sions of the South Africa Act. This was a unique turn of events in the British con-
stitutional world within which parliament was regarded as sovereign.
The Black Authorities Act 68 of1951 provided for government institutions inside
black territories which related, to some extent, to traditional institutions. The Pro-
motion of Black Self-Government Act 46 of 1959 identified different black ethnic
groups for the purposes of constitutional development.
4 Republic
In 1961, South Africa became a republic in terms of the Constitution of the Repub-
lic of South Africa Act 32 of 1961. The British queen was replaced as head of state by
a ceremonial State President elected by an electoral college consisting of the
members of the House of Assembly and the Senate. Otherwise, the existing institu-
tions and the Westminster system were retained intact.
The Citizenship of National States Act 26 of 1970 linked blacks, for internal con-
stitutional purposes, to the self-governing territories of the various black groups by
means of citizenship. They did not lose their South African citizenship in the proc-
ess. In 1971, the National States Constitution Act 21 of 1971 provided for different
stages of self-government within these territories.
Act 49 of 1964, provided for a representative council for the coloured community.
The council was established in 1969 and was dissolved in 1980. The South African
Indian Council Act 31 of 1968 established a national council for the Indian popula-
tion. This council was dissolved in 1984.
The Community Councils Act 125 of 1977 provided for a system of local author-
ities for blacks living outside the homelands and, in 1982, this Act was replaced by
the Black Local Authorities Act 102 of 1982.
Since 1976, four self-governing territories became independent by a law adopted
by the South African parliament in each case, in terms of which the Republic of
South Africa would, from a particular date, cease to exercise sovereignty over the
5
respective territories.
In 1980, the Senate was abolished and a president’s council consisting of nomi-
nated white, coloured and Asian members established. In 1982, the constitutional
committee of the council submitted its first report on the reform of central govern-
ment institutions. In 1983, the Constitution of the Republic of South Africa Act 100 of
1983 was adopted by a two-thirds majority by the House of Assembly. The prominent
features of the Constitution were the extension of the parliamentary franchise to the
coloured and Indian communities, the division of government functions into own
and general affairs, the establishment of a tricameral parliament, and the introduc-
tion of the office of State President, in which the previous offices of State President
and prime minister were combined. However, the 1983 Constitution did not provide
for the participation of all South Africans in government institutions at the highest
level.
The provincial councils were abolished by the Provincial Government Act 69 of
1986, which provided for the appointment of members of all population groups to
the provincial executive committees. Provision was also made for executive co-oper-
ation on matters of mutual interest between the provinces and the self-governing
territories.
The Regional Services Councils Act 109 of 1985 provided for the joint exercise of
certain of their functions by local governments.
The Restoration of South African Citizenship Act 73 of 1986 provided for the res-
toration of the citizenship of blacks domiciled in the Republic of South Africa who
lost their citizenship as a result of the independence of Transkei, Bophuthatswana,
Venda and Ciskei.
Relations between South Africa and the independent states that previously formed
part of the Republic, namely Transkei, Bophuthatswana, Venda and Ciskei, were
formally governed by the rules of international law. A permanent secretariat for co-
operation in Southern Africa managed the functions of a multilateral development
council of ministers and of a large number of technical committees on matters of
common interest.
5 Democratisation
The democratisation of the South African constitutional system remained a vexing
matter of growing proportions. The turning point was in 1990, with the unbanning
of prohibited political organisations and the release or return to South Africa of
their leaders, which dramatically accelerated the process of constitutional change. In
December 1991, during multi-party negotiations (known as CODESA – Convention
for a Democratic South Africa), the majority of South African political parties and
organisations signed a declaration of intent in which they committed themselves to
draw up a new democratic constitution for South Africa through negotiations as
soon as possible. During the first half of 1992, different representative working
groups negotiated, inter alia, on the principles that should be included in a new
constitution, the composition and functioning of a constitutional assembly, the
________________________
5 Status of Transkei Act 100 of 1976, Status of Bophuthatswana Act 89 of 1977, Status of Venda
Act 107 of 1979 and the Status of Ciskei Act 110 of 1981.
Chapter 2 Historical overview 17
possible reincorporation of Transkei, Bophuthatswana, Venda and Ciskei into the
Republic, interim government institutions, and various other preparatory and transi-
tional arrangements. In June 1992, negotiations within the CODESA framework
were suspended due to political and other reasons.
During 1993, multi-party negotiations were resumed and agreement was reached
on the particulars of an Interim Constitution, the arrangements necessary to ensure
free and fair elections, and the establishment of a transitional executive council to
supervise the implementation of the Interim Constitution.6 The Interim Constitu-
tion and other laws necessary to facilitate the transitional process to a new dispensa-
tion, were adopted by parliament at the end of 1993. It was also agreed that elections
for the interim parliament would take place from 26 to 28 April 1994, after which
the interim parliament, acting as a constitutional assembly, would immediately begin
to draft and complete the final Constitution within two years. The transitional execu-
tive council and other bodies, such as the independent electoral commission, the
independent media commission and the independent broadcasting authority, also
commenced their work at the end of 1993.7 The Interim Constitution was promul-
gated on 28 January 1994 and took effect on 27 April 1994.8
The election of parliament and the new provincial legislatures took place from
26 to 28 April. The election led to the establishment of the new legislative, executive
and judicial institutions at the various levels, a process that would continue for a
considerable time.
From 1994 to 1996 the Constitutional Assembly concentrated on the drafting of
the new Constitution.9 On 8 May 1996 a constitutional text was adopted. On 6 Sep-
tember 1996 the Constitutional Court held that not all the provisions of the consti-
tutional text complied with the constitutional principles and the court declined to
certify the text.10 On 11 October 1996 the Constitutional Assembly approved the
necessary amendments, and it was referred back to the court for certification. The
court certified the amended text on 4 December 1996,11 and the Constitution of the
12
Republic of South Africa, 1996, took effect on 4 February 1997. The Constitution
did not result in new elections and a new government, because the constitutional
principles provided that parliament and the government, as constituted in terms of
the Interim Constitution, would continue to exist until 30 April 1999.13
________________________
6 See on the origins of the Interim Constitution in general, the various contributions in De
Villiers B (ed) Birth of a Constitution (1994). See also the remarks by Klug H “Historical back-
ground” in Chaskalson M et al (eds) Constitutional Law of South Africa (1996) para 2.4 (c) and
the discussion of the transition to democracy in De Vos P and Freedman W (eds) South African
Constitutional Law in Context (2014) 15-26.
7 See Heunis JC “Transitional Executive Council” in De Villiers B (ed) Birth of a Constitution
(1994) 20.
8 Constitution of the Republic of South Africa Act 200 of 1993, as promulgated in Government
Gazette 15466 of 28 January 1994.
9 See ch 3 para 2.2.7. For an account of the process, see Ebrahim H “The Constitutional Assem-
bly – drafting South Africa’s new Constitution” Commonwealth Secretariat International Round-
table on Democratic Constitutional Development (1995) 22–32; Yacoob Z “The constitution-making
process: an overview” 1996 The Human Rights and Constitutional Law Journal of Southern Africa 18.
10 In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC).
11 In re: Certification of the Amended Text of the Constitution of the RSA, 1996 1997 1 BCLR 1 (CC),
1997 2 SA 97 (CC).
12 Proclamation R6 of 1997 (Government Gazette 17737 of 24 January 1997). It is incorrect to refer to
the Constitution as Act 108 of 1996 – see ch 3 par 2.2.6.4.
13 Constitutional principles XXXII and XXXIII. See also annexures A and B schedule 6 of the
1996 Constitution.
Various laws, most of which are pursuant to specific provisions of the Interim
Constitution and the Constitution of 1996, have been adopted since 1993 to give
effect to the new constitutional order. Almost all of them have become part of the
new constitutional dispensation and are discussed in the other chapters. The prov-
inces also adopted various laws to give effect to the Constitution and the Western
14
Cape adopted a provincial constitution.
The Constitution created a democratic framework for South Africa. Hopefully this
solid foundation will last when, in future, the sustainability of the new democracy
15
will be put to the test.
________________________
14 As certified by the Constitutional Court – see In re: Certification of the Constitution of the Western
Cape, 1997 1997 9 BCLR 1167 (CC), 1997 4 SA 795 (CC); Certification of the Amended Text of the
Constitution of the Western Cape, 1997 1997 12 BCLR 1653 (CC), 1998 1 SA 655 (CC). KwaZulu-
Natal also adopted a constitution, but it was not certified and did not come into effect – see In
re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996 1996 11 BCLR 1419 (CC),
1996 4 SA 1098 (CC). See ch 11 para 2.3.1.
15 See the overview by Malherbe R “Die teorie en praktyk van die 1996-grondwet: ’n versigtige
waardering” 2008 TSAR 425–448.
Chapter 3
Sources of constitutional law
1 General 19
2 Legislation 19
3 Custom 32
1 General
The sources of constitutional law, as of any other branch of the law, are legislation,
common law, customary law and case law.
Whereas case law was an extremely limited source of the South African constitu-
1
tional law before 1994, this situation has changed drastically. An entrenched Consti-
tution which can be enforced by the courts as the highest law with which all other
law and conduct must comply, has resulted in continuous stream of case law in
which constitutional law is applied. Because the courts determine authoritatively
what the provisions of the Constitution mean, these provisions must always be read
in conjunction with the case law on their meaning and application.
2
In addition to legislation, common law, customary law and case law, customs and the
3
works of jurists are sometimes mentioned as sources of the law. Although custom may
develop into common law or customary law, they are not formal sources of law until
they have complied with all the requirements of legal rules. Cognisance must never-
4
theless be taken of the role of conventions in constitutional law. The works of jurists
are not primary sources of the law, but rather sources in which the content of legal
5
rules may be reflected.
2 Legislation
2.1 General 20
2.2 Constitutions 20
2.3 The interpretation of constitutions 27
legislation 31
________________________
1 See eg the few decisions referred to by Carpenter G Introduction to South African Constitutional
Law (1987) 25.
2 According to Carpenter G Introduction to South African Constitutional Law (1987) 25 custom can
be regarded as part of common law.
3 Du Plessis L Inleiding tot die Reg (1990) 76.
4 Para 3.
5 See the distinction drawn by Van Zyl FJ and Van der Vyver JD Inleiding tot die Regswetenskap
(1982) 288 and 327–328 between original sources of the law and sources for finding the law.
They classify statute law, case law and common law as original sources, whereas Roman Dutch
law as contained inter alia in the old works, is a source for finding the law. See, however, Hos-
ten WJ, Edwards AB, Nathan C and Bosman F Introduction to South African Law and Legal Theory
(1995) 379–381 and Hahlo HR and Kahn E The South African Legal System and its Background
(1968) 139–141.
19
2.1 General
Legislation is the most important source of constitutional law.
Constitutional law, like many other branches of the law, is mainly contained in
6
legislation. “Legislation” refers to generally applicable rules of law made by
government authorities.7 Laws made by parliament, provincial laws and ordinances,
municipal by-laws, and proclamations and regulations by the President and ministers
all fall under legislation. Laws regulating constitutional law mainly emanate from par-
liament, but provincial laws and ordinances on local government are also sources of
constitutional law.8 The written constitution is therefore not the only source of
constitutional law as defined in chapter 1, namely the law relating to the state.
2.2 Constitutions
2.2.1 The constitution as statutory source of constitutional law 20
2.2.2 The constitution as statute or in a wider sense 21
2.2.3 Constitutions with higher status than other laws 21
2.2.4 The adoption of constitutions 22
2.2.5 The commencement of a constitution 26
2.2.1 The constitution as statutory source of constitutional law

The constitution is the most important statutory source of constitutional law.
A constitution is a law that contains the most important rules of law in connection
with the constitutional system of a country. It confers government authority on parti-
9
cular institutions, and regulates and limits its exercise. A constitution guarantees
and regulates the rights and freedoms of the individual in a bill of rights. A constitu-
tion is thus a key component of the legal system of a state. In addition, a constitution
is regarded in democratic societies as an expression of the will of the people and a
10
reflection of prevailing values, or values to which the state aspires. Nowadays all
11
states have constitutions. The United Kingdom is a rare exception. Since the begin-
ning of the twentieth century no state has come into being without a constitution. A
12
constitution is a symbol of statehood.
________________________
6 See para 3.3 on the role that common law still plays.
7 Hahlo HR and Kahn E The South African Legal System and its Background (1968)148. See also
Kachelhoffer GC Die Betekenis van Ondergeskikte Wetgewing vir die Administratiefreg in Suid-Afrika
(1972 thesis Unisa) 251, ch 8 para 2.5.7 and s 239 of the Constitution.
8 See ch 12 for examples.
9 According to Stern K “Global constitutional movements and new constitutions” 2002 SA Public
Law 154 159 this refers to the regulatory function of a constitution. See the definition of a consti-
tution in S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 15; In re: Certification of
the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 27. See also
Jellinek G Allgemeine Staatslehre (1914) 505; Müller F “Basic questions of constitutional concretisa-
tion” 1999 Stell LR 269.
10 According to Stern K “Global constitutional movements and new constitutions” 2002 SA Public
Law 160 this is the unifying function of a constitution. See S v Makwanyane 1995 6 BCLR 665
(CC), 1995 3 SA 391 (CC) para 262.
11 See para 3 below. Stern K “Global constitutional movements and new constitutions” 2002 SA
Public Law 155 also refers to Saudi-Arabia and Israel, but the so-called basic laws that regulate the
various branches of government in Israel constitute a constitution.
12 Vorster MP “Constitutions” in Van Vuuren D and Kriek D (eds) Political Alternatives for South
Africa (1983) 107 describes a constitution as an “international birth certificate”.
Chapter 3 Sources of constitutional law 21
2.2.2 The constitution as statute or the constitution in a wider sense
The term constitution may either refer to the constitution as a statute, or to the
13
constitution in a wider sense.
Because a constitution in the sense of a single piece of legislation almost never con-
tains all constitutional provisions, two meanings are usually attached to the term
constitution, namely: (a) the constitution as a law containing the main provisions
with regard to the state the government institutions and their powers, and the
relationship between the state and its inhabitants; and (b) constitution in wider
sense which includes all constitutional provisions, that is, all provisions contained in
the constitution as a single law and in other statutes, the common law and customary
14
law. Inasmuch as a constitution can hardly contain all constitutional provisions, stu-
dies of constitutional law must also reckon with rules of law pertaining to the state
not contained in the constitution.
2.2.3 Constitutions with higher status than other laws

In many states, the constitution has a higher status than other laws and is regarded as
the supreme law of the state.
For various reasons, a constitution is often accorded a higher status than other laws.
A constitution accorded supremacy stands in direct contrast to the concept of a
sovereign parliament, vested with the highest authority in the state and not subject
15
to limitations in the constitution. In order to enjoy supremacy, a constitution must
be written and entrenched, otherwise parliament can amend it with ordinary major-
ities.16 In addition, it must be possible to enforce observance of the provisions of the
constitution. Usually, the courts perform this function. The supremacy of the consti-
tution and the state being bound by the constitution are always considered to be key
17
elements of concepts such as “a constitutional state” and “constitutionalism”.
The South African Constitution is supreme.
Section 2 of the Constitution provides that the Constitution is the supreme law of
the Republic, that any law or conduct inconsistent with it, is invalid and that the obli-
gations imposed by the Constitution must be fulfilled. In addition, the Constitution
18
is entrenched and the courts are vested with the power to test the constitutional
validity of any government action and declare it invalid if it is in conflict with the
19
Constitution. In this way, South Africa departed formally and substantially from the
system of parliamentary sovereignty which previously dominated our constitutional
20
law. The idea, as it has developed in the Westminster tradition, that parliament is
the highest authority in the state, subject to no other, is no longer applicable and
________________________
Africa (1983 107. In Afrikaans the terms “grondwet” and “konstitusie” are used to denote the
different meanings.
14 See Basson DA and Viljoen HP South African Constitutional Law (1988) 31.
15 Schwartz B American Constitutional Law (1955) 1-11 provides a useful exposition of this contrast.
16 See also In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4
SA 744 (CC) para 153.
17 See ch 1 para 3.3.
18 See s 74.
19 S 172(1)(a).
20 See eg Wiechers M VerLoren van Themaat Staatsreg (1981) 305 ff; Carpenter G Introduction to
South African Constitutional Law (1987) 133 ff.
21
laws of parliament (and any other legislature, ) like the actions of any other govern-
22
ment body, may be declared invalid if found to be in conflict with the Constitution.
23
All executive authority is also subject to the Constitution. In Executive Council,
Western Cape Legislature v President of the Republic of South Africa, one of the first judg-
ments in which the Constitutional Court invalidated a provision of an act of parlia-
ment,24 Chief Justice Chaskalson stated: “It is of crucial importance at this early stage
of the development of our new constitutional order, to establish respect for the
principle that the Constitution is supreme.” 25
Entrenchment and justiciability are key instruments to give practical effect to the
supremacy of a constitution.
Mere declarations in constitutions that they are supreme cannot secure their
supremacy. When constitutions are not entrenched, that is, when they may be
amended or abolished like any other law, and when laws and action that are incon-
sistent with the constitution cannot be invalidated by courts of law, their supremacy
could mean very little. Entrenchment is discussed in chapter 8 paragraph 2.5.7 and
the courts’ jurisdiction in respect of constitutional matters is discussed in chapter 10
paragraph 5.2.
In addition to these two instruments, special procedures for the adoption of con-
stitutions can be followed in order to afford them a higher status.
2.2.4 The adoption of constitutions
Special procedures may be followed for the adoption of a constitution.
In the Westminster tradition of parliamentary sovereignty, such arrangements are
unknown, because the constitution enjoys no higher status and parliament can
simply adopt a new constitution according to the procedures for enacting ordinary
26
laws. However, in other systems, and in states that departed from the Westminster
tradition, special arrangements for the adoption of a constitution are common. The
purpose of special constitution-making arrangements is also to ensure the support of
27
the people for the constitution and in doing so, to strenghthen its legitimacy.
Kelsen refers to another related aspect. According to him, a particular political deci-
28
sion or circumstance – a Grundnorm – forms the basis for any new constitution. This
starting point is provided by political or social changes of such magnitude or import
that a new constitution becomes necessary. The role of such a Grundnorm could be
________________________
21 Even a provincial constitution adopted by a provincial legislature is subject to the national

Constitution – see In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996 1996
11 BCLR 1419 (CC), 1996 4 SA 1098 (CC) para 8; In re: Certification of the Constitution of the West-
ern Cape, 1997 1997 9 BCLR 1167 (CC), 1997 4 SA 795 (CC) para 8.
22 See further ch 8 para 2.4.
23 President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) para 28.
24 S 16A of the Local Government Transition Act 209 of 1993.
25 1995 10 BCLR 1289 (CC), 1995 4 SA 877 (CC) para 100. See the discussion of the judgment by
Malherbe EFJ “Grondwetlike oppergesag in werking” 1996 TSAR 175–182.
26 See on parliamentary sovereignty ch 8 para 2.4.
27 For the distinction between the citizens or a special representative body as constituent or
constitution-making authority (pouvoir constituant) and the government of the day as legally
constituted constitution-making authority (pouvoir constitué), see Loewenstein K Über Wesen,
Technik und Grenzen der Verfassungsänderung (1961) 23 ff; Stern K I Das Staatsrecht der Bundesre-
publik Deutschland (1977) 115-144; Vorster MP “Constitutions” in Van Vuuren D and Kriek D
(eds) Political Alternatives for South Africa (1983) 116, Pretorius JL and Strydom HA “Die proses
van grondwetgewing” 1984 Tydskrif vir Regswetenskap 48–51.
28 Kelsen H The Pure Theory of Law (1967).
clearly discerned in the South African constitutional process. So many far-reaching po-
litical, ideological, social and economic changes took place that a new constitution
29
simply became necessary.
Three categories of special arrangements for the adoption of a constitution can be
distinguished: adoption by a special constituent body; adoption by the existing
legislative institutions; and adoption by popular or other forms of ratification.30
Adoption by a special constituent assembly dates back to the eighteenth century, but
gained popularity as a result of the creation of many new states during the twentieth
century. A special constituent assembly must be representative of the citizens and
must preferably be directly elected. The process presupposes consensus, at least on
the necessity for a new constitution, the rules of the game, and the method by which
31
the constitution should be adopted.
In principle, adoption of a constitution by the existing parliament or other legislative
institution implies that the normal legislative process is followed.32 The South African
33
Interim Constitution was adopted in this way.
Usually, adoption of a constitution by popular or other forms of ratification is pre-
ceded by a parliamentary or special constitutional process. Ratification can be defin-
ed as approval by institutions or persons outside parliament, without which a con-
stitution approved by parliament will be of no force and effect. Ratification may be
34
undertaken by, for example, the voters in a mandatory referendum, provinces or
35
the constituent states of a federation, or by the courts, as was the case in South
Africa.
The above-mentioned methods may also be combined.
Nearly all the above methods were used during the adoption of the South African
Constitution.
The Interim Constitution contained extensive arrangements for the adoption of the
present Constitution. Together, the two houses of the interim parliament formed a
Constitutional Assembly that had to adopt the Constitution with a two-thirds majority
within two years.36 The parliament which was constituted in 1994 therefore acted both
as national legislature and as a special constituent assembly. The standing orders of
the Constitutional Assembly provided the procedures for the consideration of the
________________________
29 See ch 2.
30 McWhinney E Constitution-making: Principles, Process, Practice (1981) 27–38 refers to both the
adoption of new constitutions and to initiatives to amend existing constitutions, eg by expert
commissions and popular initiative (see in respect of Switzerland also Klöti U “Swiss democ-
racy: exception or model?” Second Strasbourg Conference of the Parliamentary Assembly of
the Council of Europe (1987) 18) and negotiations by executive organs of state (eg the Cana-
dian federal and provincial governments).
31 McWhinney E Constitution-making: Principles, Process, Practice (1981) 33.
32 See in respect of other arrangements that may be added Rautenbach IM and Malherbe EFJ
Constitutional Law (2009) 30.
33 See the discussions by Venter F “Milestones in the evolution of the new South African Consti-
tution and some of its salient features” 1994 SA Public Law 211 213 and Carpenter G “The Re-
public of South Africa Constitution Act 200 of 1993: an overview” 1994 SA Public Law 222 226.
34 Ss 140 and 193 of the Swiss and s 44(2) of the Austrian Constitutions.
Africa (1983) 112.
36 Ss 68(1) and 73(1) and (2). S 73(2) provided that the part of the final Constitution dealing
with the boundaries, powers and functions of the provinces also had to be approved by a two-
thirds majority of the members of the Senate serving in the Constitutional Assembly.
constitutional text. The Constitution could come into operation only if and when
the Constitutional Court certified that the text complied with the constitutional
principles in schedule 4 of the Interim Constitution.37 A final text adopted according
to these provisions had to be assented to by the President. The Interim Constitu-
tional contained extensive provisions how to avoid and resolve deadlocks during the
38
preparation and adoption of the new constitutional text. The Constitutional
Assembly could amend the prescribed procedure for the adoption of the Consti-
tution by a two-thirds majority, but the constitutional principles, and the require-
ment that the Constitution had to comply with them and that the Constitutional
Court had to certify the Constitution accordingly, could not be amended at all.39
The constitutional principles formed the framework within which the Constitution
had to be drafted and the certification of the Constitution by the Constitutional Court
40
was a unique procedure.
The principles included a commitment to a democratic system of government based
on universal franchise, regular multi-party elections, citizenship for all, an entrench-
ed constitution as supreme law, a justiciable bill of rights, prohibition of discrimina-
tion, an independent judiciary, equality before the law, separation of powers and en-
trenchment of three democratic levels of government and the distribution of powers
41
among them.
The question has been raised whether the constitutional principles ceased to exist, or
whether, by virtue of their fundamental nature, they still exist and should play a role in
42
respect of future constitutional amendments. Formally, no provision has been made
for the continued existence of the principles; except as an aid in the interpretation of
43 44
the Constitution, it must be accepted that they have ceased to exist. However, any
fear that the basic features of the Constitution can be revoked arbitrarily in the
absence of the constitutional principles is unfounded. In certifying the Constitution,
________________________
37 S 71. With regard to this function of the Constitutional Court see Olivier P “Constitutionalism
and the new SA Constitution” in De Villiers B (ed) Birth of a Constitution (1994) 50 53. A similar
approach was followed in Namibia, where agreement was reached beforehand on a number of
constitutional principles with which the Constitution had to comply (see Van Wyk DH “The
making of the Namibian Constitution: lessons for Africa” 1991 CILSA 341).
38 Ss 73(3)–(12). For an overview of these rules see Rautenbach IM and Malherbe EFJ Constitu-
tional Law (2009) 31–32.
39 S 74. The procedure was amended in 1996 to extend the deadline of two years.
40 In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744
(CC) para 1. For a more extensive discussion see Rautenbach IM and Malherbe EFJ Constitu-
tional Law (2009) 32–34. See also Erasmus G and De Waal J “Die finale grondwet: legitimiteit
en ontstaan” 1997 Stell LR 39 ff; Wiechers M “Abhandlung über den südafrikanischen Staat” in
Burmeister J et al Verfassungsstaatlichkeit: Festschrift für Klaus Stern (1997) 377 ff.
41 Schedule 4 contained 34 principles.
42 See Butler A “The 1996 Constitution Bill, its amending power and the constitutional princi-
ples” 1996 Human Rights and Constitutional Law Journal of Southern Africa 24; “The Constitutional
Court Certification judgements” 1997 SALJ 703. See Wiechers M “Namibia: the 1982 constitu-
tional principles and their legal significance” in Van Wyk DH, Wiechers M and Hill R (eds)
Namibia: Constitutional and International Law Issues (1991) 1 17–21 in respect of similar princi-
ples in Namibia, and the views of Van Wyk DH “’n Paar opmerkings en vrae oor die nuwe
Grondwet” 1997 THRHR 377, 380–382.
43 See para 2.3.2(e).
44 See the first Certification judgment 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 18, and
Malherbe EFJ “Die sertifisering van die 1996 Grondwet” 1997 TSAR 356, 358; Chaskalson M
and Davis D “Constitutionalism, the rule of law, and the first Certification judgment” 1997
SAJHR 430.
the Constitutional Court affirmed that the principles had been incorporated.45 A basic-
features doctrine46 does not depend on the continued existence of the constitutional
principles in their original form; it can possibly be based upon one or more of the
founding values in section 1 of the Constitution. The Constitutional Court has, for ex-
ample, held that the rule of law in section 1 implies that any constitutional amend-
ment must rationally be capable of promoting the purpose of the amendment.47
The adoption of the Constitution was part of an evolutionary constitutional process.
On 8 May 1996 the Constitution was adopted by a two-thirds majority in the
Constitutional Assembly. On 6 September 1996 the Constitutional Court held that
the constitutional text did not comply in all respects with the constitutional prin-
48
ciples. On 11 October 1996 the Constitutional Assembly approved the necessary
amendments and the text was again submitted for certification. The Constitutional
49
Court certified the Constitution on 4 December 1996. On 4 February 1997 the
50
Constitution took effect.
Constitutional reform in South Africa can be described as evolutionary constitu-
tional development. This means that existing constitutional arrangements continue
51
to exist until lawfully replaced. The previous parliament adopted the Interim Con-
stitution to replace the 1983 Constitution and, in turn, the interim parliament, as
constitutional assembly, adopted the present Constitution. The constitutional proc-
ess thus did not involve actions that were not based on existing law: until the com-
mencement of the Interim Constitution, the previous constitutional arrangements
continued to exist, and, in turn, the Interim Constitution remained in force until
replaced by the present Constitution.
________________________
45 S 1, which contains the underlying values of the Constitution, can, eg, be amended only by a
75% majority. See further ch 8 para 2.5.7.6.
46 The doctrine developed in India – see the references in Malherbe EFJ “Die wysiging van die
Grondwet: die oorspoel-imperatief van artikel 1” 1999 TSAR 191, 195.
47 See Merafong Demarcation Board v President of the RSA 2008 10 BCLR 969 (CC), 2008 5 SA 171
(CC) paras 62 66 114; Poverty Alliance Network v President of the RSA 2010 6 BCLR 520 para 69;
Rautenbach IM “Means-end rationality in Constitutional Court judgments” 2010 TSAR 778-
779. See also Executive Council, Western Cape Legislature v President of the Republic of South Africa
1995 10 BCLR 1289 (CC), 1995 4 SA 877 (CC) para 204; and ch 8 para 2.5.7.7(e) below.
(CC). See the discussion of this judgment by Malherbe EFJ “Die sertifisering van die 1996
Grondwet” 1997 TSAR 356; Chaskalson and Davis Chaskalson M and Davis D “Constitutional-
ism, the rule of law, and the first Certification judgment” 1997 SAJHR 430.
49 Certification of the Amended Text of the Constitution of the RSA, 1996 1997 1 BCLR 1 (CC), 1997 2 SA
97 (CC).
50 Proc R6 of 1997, GG 17737 of 24 January 1997, issued under s 243(1) of the Constitution. The
incorrect reference to “Act 108” of 1996 (see – Malherbe EFJ “Die nommering van die Grond-
wet van die Republiek van Suid-Afrika 1996: vergissing of onkunde?” 1998 TSAR 140) was recti-
fied by the Citation of Constitutional Laws Act 5 of 2005, which provides correctly that the
correct reference is “Constitution of the Republic of South Africa, 1996” (see Malherbe R “’n
Komedie van vergissings: die (nie-)wysiging van ’n nie-bestaande wetsbepaling” 2006 TSAR
356–359).
51 Wiechers M VerLoren van Themaat Staatsreg (1981) 1.
2.2.5 Commencement of a constitution
At the commencement of a constitution, special measures have to be introduced to
regulate the transition.
52
The following rules apply to the commencement of the South African Constitution:
(a) In principle, the Constitution applies to all law that was in force when the
53
Constitution took effect.
“Law” includes acts of parliament, provincial legislatures and the legislatures of
former self-governing and independent homelands, the common law and customary
law, by-laws of local authorities and proclamations and all other legislative measures of
54
executive organs. Laws which existed when the Constitution took effect and which
were inconsistent with the Constitution were invalid from the moment that the
55
relevant provisions of the Constitution came into operation. This rule may be
deviated from in terms of the provision that a court, when declaring a law invalid,
may make a just and equitable order suspending a declaration of invalidity for any
period and on any conditions, to allow the competent authority to correct the
56
defect.
(b) In principle, the Constitution does not apply to actions performed before the
commencement of the Constitution.
The Constitutional Court has emphasised in various decisions that this rule means
that “. . . the Constitution does not turn conduct which was unlawful before it came
into force into lawful conduct. It does not enact that at a date prior to its coming
into force ‘the law shall be taken to have been that which it was not’”.57 The rule
applies to administrative and executive actions and to private actions performed before
the commencement of the Constitution. The Constitutional Court left open the
possibility that the general rule may be deviated from if it is clear that the challenged
conduct was a gross violation of the bill of rights and if there are special and peculiar
reasons to apply the bill of rights to it.58
________________________
52 On 4 February 1997 – see n 50. For an extensive discussion and full references to case law,
see Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 35–38.
53 Item 2(1) schedule 6 provides that all pre-existing law continues in force subject to any
amendment or repeal and to consistency with the Constitution.
54 Ynuico Ltd v Minister of Trade and Industry 1996 6 BCLR 798 (CC), 1996 3 SA 989 (CC) para 7.
55 Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 44.
When a rule of law is declared invalid in terms of a provision of the Constitution that reads
more or less the same as a corresponding provision in the Interim Constitution, that rule
of law may be declared to be invalid as from the commencement of the Interim Constitu-
tion – National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517
(CC), 1999 1 SA 6 (CC) para 96; Carmichele v Minister of Safety and Security 2001 10 BCLR
995 (CC), 2001 4 SA 938 (CC) para 7.
56 S 172(1)(b)(ii).
57 Du Plessis v De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC) para 13.
58 Du Plessis v De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC) paras 20, 69 and 117; Tsotetsi v
Mutual and Federal Insurance Company Ltd 1996 11 BCLR 1439 (CC), 1997 1 SA 585 (CC) paras
8–10.
59
(c) Cases pending before a court when the Constitution took effect had to be
disposed of as if the Constitution had not been enacted, unless the interests of justice
60
required otherwise.
The term “interests of justice” denotes an equitable evaluation of all the
61
circumstances of a particular case.
2.3 The interpretation of constitutions62

2.3.1 General 27
2.3.2 Sources of interpretation – the South African Constitution 28
2.3.1 General
Although it is often stated that because particular differences exist between con-
stitutions and other legislation, constitutions must be interpreted “differently”, the
ordinary rules of interpretation must, in principle, also be applied to constitutions.63
The special characteristics of constitutions usually referred to include that consti-
tutions form the basis of the entire legal system, that decisions to the effect that a law
or action is inconsistent with a constitution have serious consequences, and that
constitutions, more particularly bills of rights, more than other legislation, usually
contain vague and general concepts. However, no notable new approaches has as yet
been developed in South African case law and literature.
Purposive interpretation has been developed in Canada mainly to determine the pro-
64
tective ambit of entrenched rights. It is popular amongst South African writers and
65
the courts. According to the often quoted explanation of this approach in the
66
Canadian decision R v Big M Mart Ltd, the language of the text, the character and
larger objects of the bill of rights, the historical origins of the concept and, where
applicable, the meaning and purpose of other rights must be taken into account to
identify the purpose of a right (the interest which it is meant to protect). The listed
sources include some, but not all, the sources that must be used in terms of the South
67
African Constitution. Since the purpose of a provision can only be determined by us-
68
ing all the sources, rules and principles of interpretation, it is not clear why an indi-
genously developed South African approach to interpretation should specifically be
called “purposive interpretation”. It has also been contended that the central theme of
________________________
59 See on the meaning of “pending”, S v Mhlungu 1995 7 BCLR 793 (CC), 1995 2 SA 642 (CC)
paras 51, 52.
60 Item 17 schedule 6.
61 See the particular instances in Sanderson v Attorney-General, Eastern Cape 1997 12 BCLR 1675
(CC), 1998 2 SA 38 (CC) para 17; S v Ntsele 1997 11 BCLR 1543 (CC) paras 7 and 8; Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 12 BCLR 1458
(CC), 1999 1 SA 374 (CC) para 116; Premier, Mpumalanga v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal 1999 2 BCLR 151 (CC), 1999 2 SA 91 (CC) para 6.
62 See Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 41–48 for a full discussion.
63 See eg S v Zuma 1995 4 BCLR 401 (CC), 1995 2 SA 642 (CC) para 14.
64 See eg Davis D, Chaskalson M and De Waal J “The role of constitutional interpretation” in
Van Wyk D, Dugard J, De Villiers B and Davis D (eds) Rights and Constitutionalism: The New
South African Legal Order (1994) 122–126.
65 The Constitutional Court has endorsed it as a general approach to constitutional interpreta-
tion – S v Zuma 1995 4 BCLR 401 (CC), 1995 2 SA 642 (CC) para 15; S v Makwanyane 1995 6
BCLR 665 (CC), 1995 3 SA 391 (CC) paras 9 and 10.
66 (1985) 13 CRR 64 103, (1985) 18 DLR (4th) 321 395–396.
67 Paras 2.3.2–2.3.9 below. This is also evident from the matters which form part of purposive
interpretation according to Minister of Land Affairs v Slamdien 1999 4 BCLR 413 (LCC).
68 Du Plessis LM and Corder H Understanding South Africa’s Transitional Bill of Rights (1994) 85.
69
the “purposive” approach is proportionality and the balancing of interests. However,
this is not an “interpretive approach”; it is the central theme of the rules in the bill of
70
rights in respect of the limitation of rights.
The interpretation of a constitution entails that meaning is attached to its provisions.
The meaning of a particular provision is determined by employing various sources.
In the following paragraph, various sources of interpretation that may or must be
used according to the South African Constitution and court decisions are briefly
referred to.
2.3.2 Sources of interpretation – the South African Constitution
(a) The text of the Constitution
The text of the provisions to be interpreted, and of the Constitution as a whole, in-
71
cluding the preamble and schedules, comprises the starting point for interpretation.
Section 240 of the Constitution provides that in the event of inconsistency between
different texts of the Constitution, the English text prevails. Only an English text was
adopted by the Constitutional Assembly. To the extent that section 240 may be
interpreted to refer to texts other than the text adopted by the Constitutional
Assembly, it is a superfluous provision – it is self-evident that the sole approved text, in
whatever language, must supersede unapproved (and thus unofficial) texts in other
languages. However, to the extent that the section may be interpreted to refer to
officially approved texts, the rule in section 240 and associated rules developed by
the courts in respect of legislation in different languages (some of which were
applied to the interpretation of the official Afrikaans and English texts of the Inte-
72
rim Constitution), can only be applied once the Constitution has been amended to
accord official status to texts in other languages.73
The meaning attached to a provision of the Constitution may not be subjected to
the meaning of words and phrases in the common law or in ordinary legislation.74
This is an implication of the supremacy of the Constitution and constitutional
judicial review. This principle also applies to legislation that must be enacted in
terms of the Constitution in order to give effect to rights in the Bill of Rights, for
example, the right to equality, the right to access to information and the right to
75
administrative justice. The meaning attached to the rights in such legislation is not
________________________
69 Van der Walt AJ The Constitutional Property Clause (1997) 11–16.

70 Ss 7(3) and 36.
71 Perry MJ Morality, Politics and Law (1990) 131: “ . . . in American political-legal culture it is
axiomatic that the constitutional text is authoritative – indeed, supremely authoritative – in
constitutional adjudication. That is, it is axiomatic that constitutional cases should be decided
on the basis of, according to, the Constitution.” See also S v Makwanyane 1995 6 BCLR 665
(CC), 1995 3 SA 391 (CC) para 266.
72 See Du Plessis v De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC) para 44.
73 Obviously, translations published by the government are not official texts approved by the
Constitutional Assembly. Neither can they, in the absence of any constitutional authorisation
to this effect, be given such a status by a formal government decision or a resolution or ordi-
nary act of parliament.
74 Ex parte President of the RSA: In re: Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC), 2000 1
SA 732 (CC) para 60.
75 See s 8(4) and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000; s 32(2) and the Promotion of Access to Information Act 2 of 2000; s 33(3) and the
Promotion of Administrative Justice Act 3 of 2000; and in respect of the right to fair labour
practices in s 23, the Labour Relations Act 66 of 1995.
the “final” meaning of the rights concerned, in fact, it may be inconsistent with the
76
meaning which the courts attach to the rights.
(b) Values that underlie an open and democratic society

When interpreting the Bill of Rights, the values that underlie an open and
democratic society based on human dignity, equality and freedom must be
77
promoted. This rule may also be applied to the interpretation of the other
provisions of the Constitution.
As an antidote to literal and technical interpretation, following a value-based ap-
proach to interpretation of the Bill of Rights is not one amongst many approaches
that the interpreter can either follow or ignore. According to the Constitution it
78
must be followed. The values underlying a right in the Bill of Rights are often
considered as constituting the main reason for, or purpose of, its protection. Com-
pared to most other constitutions, one of the outstanding features of the South
African Constitution is the extensive way in which it expressly articulates specific
79
values.
(c) International law

When interpreting the Bill of Rights, international law must be considered.80 Inter-
national law may also be taken into account when the other provisions of the
Constitution are interpreted.
The international law that must be considered includes international law not bind-
ing on South Africa.81 Except when international agreements and international law
82
forms part of the law in South Africa, there is no obligation to apply international
law, it must merely be considered.
(d) Foreign law

When interpreting the Bill of Rights, foreign law may be considered.83
This is a superfluous provision. If it had not been included, interpreters would, like
in all other fields, and in respect of all provisions of the Constitution, not have been
________________________
76 NEHAWU v University of Cape Town 2003 2 BCLR 154 (CC) para 14. See also In re: Certification
of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 149.
77 S 39(1)(a).
78 Matatiele Municipality v President of the RSA 2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC) para 36.
See in general on value-based interpretation, Botha CJ Waarde-aktiverende Grondwetuitleg: Ver-
gestalting van die Materiële Regstaat (1996 thesis UNISA) 6 61.
79 See ch 1 para 2(g).
80 S 39(1)(b) of the Constitution; Blake RC “The world’s law in one country: the South African
Constitutional Court’s use of public international law” 1998 SALJ 668; Botha N “International
law in the Constitutional Court” 1995 SAYIL 668.
81 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 35.
82 Ss 231, 232 and 233 of the Constitution. Ss 231 and 232 clearly indicate that the Constitution
is the primary source of the protection of human rights in South Africa; in principle, an in-
ternational agreement becomes part of South African law only after it has been enacted as an
act of parliament and customary international law is law in the Republic unless it is inconsistent
with the Constitution or an act of parliament. See Sonderup v Tondelli 2001 2 BCLR 152 (CC),
2001 1 SA 1171 (CC) para 27.
83 S 39(1)(c).
84
precluded from either considering or ignoring foreign law. Nevertheless, the cor-
responding provision of the Interim Constitution provided the courts with an oppor-
tunity to express themselves on how foreign law should be applied. The main theme
85
has been that there is no obligation to apply foreign law.
(e) Constitutional principles
Although the constitutional principles were repealed,86 they may still be relevant to
the interpretation of the Constitution. When more than one meaning can reasonably
be attached to a provision of the Constitution, the meaning that is more consistent
with the constitutional principles than the others must be followed.
87
The Constitutional Court followed this approach in the first Certification judgment.
The court stated that, save in the most compelling circumstances, the meaning
assigned to a provision in the certification process should be followed by other
88
courts. The Certification judgments did not deal with all provisions of the Constitu-
tion. However, certification implies that the court has held all provisions to be con-
89
sistent with the constitutional principles. Even provisions not expressly dealt with
by the court have to be assigned meanings which are consistent with the constitu-
tional principles.
(f) Background evidence on negotiations
Where background material on the constitutional negotiations is clear, not in dis-
pute, and relevant to showing why particular provisions were or were not included in
the Constitution, it may be taken into account in interpreting the Constitution.90
The Constitutional Court cautioned against the use of comments of individual parti-
cipants to the process.91 The court referred to the possibility that other background
________________________
84 It was probably inserted because the Interim Constitution contained such a redundant
provision and its omission could have given rise to speculation that the courts could no long-
er have regard to foreign law.
85 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 37 and 39; Bernstein v
Bester NO 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) para 133; H v Fetal Assessment Centre
2015 2 BCLR 127 (CC), 2015 2 SA 193 (CC) para 32; Rural Maintenance (Pty) Ltd v Maluti A-
Phofong Local Municipality 2017 1 BCLR 64 (CC) para 14. In S v Mamabolo 2001 5 BCLR 449
(CC), 2001 3 SA 409 (CC) para 36 the court said: “[B]efore one could subscribe to . . . a
wholesale importation of a foreign product one needs to be persuaded, not only that it is sig-
nificantly preferable in principle, but also that its perceived promise is likely to be substanti-
ated in practice in our legal system and in the society it has been developed to serve. More
pertinently, it would have to be established that [the importation] was consonant with our
South African constitutional value system.”
86 S 242 and schedule 7 of the Constitution. See para 2.2.7.
(CC) para 42.
88 Para 43.
89 Para 2 of the first Certification judgment. See also Eastern Metropolitan Substructure v Democratic
Party 1997 8 BCLR 1039 (W) 1045BC.
90 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 17–19. The court used the
term “background material” to describe the reports of the advisory technical committees of
the multi-party negotiating process.
91 Yackle L Regulatory Rights – Supreme Court Activism, the Public Interest, and the Making of Constitu-
tional Law (2007) 44 explains: “Lawyers, judges, and legal academics alike often begin their
investigations of historical evidence with the mission to find support for the interpretative
conclusion they want to reach. The investigation is then corrupted as evidence is screened in
or out depending on its tendency to prove the point the enterprise was undertaken to dem-
[continued on next page]
evidence may also be useful to show why particular provisions were or were not
included. However, the court stated expressly that it did not express an opinion on
whether background evidence might be useful for other purposes as well, and it did
not formulate general principles governing the admissibility of such evidence.
(g) Human rights violations
In many judgments, the Constitutional Court held that the meaning of provisions in
the Bill of Rights must be determined against the background of past human rights
violations.
The Constitution endeavours to heal the past and to avoid the recurrence of viola-
92
tions. The link between South Africa’s history of human rights abuses and the
adoption of the Constitution has been confirmed both in the Interim Constitution
93
and the Constitution.
(h) Public opinion
Public opinion on what a provision of the Constitution ought to mean cannot be con-
clusive for the interpretation of the provision. Such an approach is inconsistent with
the supremacy of the Constitution.
Although a court’s legitimacy may possibly be influenced by the public acceptability
of its decisions, the following explanation in S v Makwanyane94 provides the only
acceptable basis on which a court can fulfil its constitutional duties within the
framework of a supreme constitution: “Public opinion may have some relevance to
the enquiry [into the constitutionality of the death penalty], but in itself, it is no
substitute for the duty vested in the Courts to interpret the Constitution and to
uphold its provisions without fear or favour. If public opinion were to be decisive
there would be no need for constitutional adjudication. The protection of rights
could then be left to Parliament, which has a mandate from the public, and is
answerable to the public for the way its mandate is exercised, but this would be a
return to parliamentary sovereignty, and a retreat from the new legal order estab-
lished by the 1993 Constitution.”

legislation
When legislation is interpreted to determine its consistency with the Constitution,
the rule applies that where the legislation can be interpreted in more than one way,
the reasonable interpretation that does not conflict with the Constitution must be
followed.
________________________
onstrate. Discussions of historical materials in briefs and judicial opinions typically fail to cap-
ture even the provisional objectivity that professional historians hope to offer.”
92 See eg S v Mhlungu 1995 7 BCLR 793 (CC), 1995 3 SA 867 (CC) para 111; S v Makwanyane
1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 218, 262, 322 and 479; Shabalala v Attorney-
General, Transvaal 1995 12 BCLR 1593 (CC), 1996 1 SA 725 (CC) para 26.
93 The postscript (headed National Unity and Reconciliation) to the Interim Constitution read:
“The adoption of this Constitution lays the secure foundation for the people of South Africa
to transcend the divisions and strife of the past, which generated gross violations of human
rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred,
fear, guilt and revenge.” The preamble of the Constitution states: “[T]his Constitution [is
adopted] as the supreme Law of the Republic so as to – Heal the divisions of the past and estab-
lish a society based on democratic values, social justice and fundamental human rights; . . .”
94 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 88; see also paras 200, 256 and 468.
This rule plays a very important role when ordinary legal rules are interpreted in
conformity with the Bill of Rights and it is therefore being dealt with in Part 2
chapter 14.
3 Custom
3.1 General 32
3.2 The Westminster system 33
3.3 Prerogatives and conventions 33
3.1 General
As a source of constitutional law, custom is of far lesser scope and significance than
statutory law. Custom still applicable in South Africa is British in origin.
Before the British occupation of 1806, Roman-Dutch law was the law of the Cape.95
The position did not change overnight. The British approach, as confirmed in the
English decision Campbell v Hall, was that the existing law of a territory conquered by
Britain would continue in force until and insofar it was amended: “The laws of a
96
conquered country continue in force, until they are altered by the conqueror.”
This approach had a dual effect on South African law. In private law, the existing law
has never been replaced formally by British law and, although the latter has exer-
97
cised considerable influence, private law has retained its Roman-Dutch inclination.
However, in public law, and specifically constitutional law, a totally different
development took place. Constitutional development under British rule, and the
government institutions that were gradually set up, were cast in British mould. At the
same time, the principles, as well as the customs and traditions, of British constitu-
tional law were introduced.
With the exception of general suffrage, which was only achieved in 1994, the
98
Westminster approach was adopted without change in the 1961 Constitution.
99
Certain changes were introduced in terms of the 1983 Constitution. Until that
stage, South African constitutional institutions were thus mainly of British origin and
South African constitutional law was based on British common law. The composition
and functioning of South African constitutional institutions, their mutual relations
and the manner in which they exercised government power, could therefore be
analysed properly only against the background of British common law. As a result of
further adaptations in the Interim Constitution, and, eventually, in the present
Constitution, only a few, albeit important, elements of British origin are left. The
most significant is, of course, majority government and the relative separation of
powers in terms of which the executive remains dependent on continued parliamen-
tary support. In contrast, parliamentary sovereignty has been abandoned and any
100
remaining British conventions have been re-enacted.
________________________

96 1 Cowper 204 [1774]. See also Calvin’s case 7 Coke’s Reports 1; 2 St Tr 559 [1608].
97 See eg Du Plessis L Inleiding tot die Reg (1990) 48–49.
98 Act 32 of 1961.
99 Act 110 of 1983.
100 See the characteristics of the Westminster system below.
3.2 The Westminster system

The features of the Westminster system introduced by the British to South Africa are
101
explained by writers in various ways. These features can be summarised as follows:
(i) The doctrine of parliamentary sovereignty is unique to Westminster. According
to the doctrine, parliament is the supreme authority in the state and all other gov-
102
ernment institutions are subject to it. That presupposes a unitary system. Par-
liament usually consists of two houses, of which one is directly elected according to a
system of electoral divisions.
(ii) According to the winner-takes-all principle, the majority party in the directly
elected house forms the cabinet or government. Cabinet members (ministers), with
the leader of the majority party as prime minister, remain members of parliament
and the government is accountable to parliament. That, inter alia, means that the
government can be defeated by the adoption of a motion of no-confidence in par-
103
liament.
(iii) There is only relative separation of powers between the legislative, executive
and judicial powers. That is due mainly to the overlap in membership between
parliament and the government, the subordination of all other branches of govern-
ment to parliament, and the incomplete powers of the courts to control the actions
104
of parliament and the government.
(iv) The head of state occupies a ceremonial office and acts chiefly according to the
advice of the cabinet. In Britain, the head of state is a monarch, whereas the cere-
105
monial head of state which South Africa has had until 1983 was indirectly elected.
(v) The relationship between the head of state and the government, and between
the government and parliament, is governed to a large extent by conventions (un-
written constitutional practices), which are not legal rules and are enforced only by
political sanction.106
The extent to which South Africa, in the course of time, has departed from these
basic features of the Westminster system becomes evident from the discussions in
this book.
3.3 Prerogatives and conventions

Custom does not feature strongly in South African constitutional law. However, two
British common law concepts that, nevertheless, existed until recently should be
noted since they are sometimes still referred to.
107
In order to honour their obligation to protect their subjects, British monarchs had
certain common law powers or prerogatives which they could exercise at their
________________________
101 See eg Wiechers M VerLoren van Themaat Staatsreg (1981) 70–71; Basson DA and Viljoen HP
South African Constitutional Law (1988) 206–215; Carpenter G Introduction to South African Con-
stitutional Law (1987) 75–78; Van der Vyver JD Die Grondwet van die Republiek van Suid-Afrika
(1984) 3–5.
102 See the definition of a union in ch 6 para 3.3.5.1.
103 The government must either resign or recommend a dissolution of parliament in order for
an election to be held (Marshall G Constitutional Conventions: The Rules and Forms of Political
Accountability (1984) 54–55).
104 See the discussion of the doctrine of separation of powers in ch 6 para 3.3.
105 S 8 of Act 32 of 1961.
106 See the discussion below.
107 Wiechers M VerLoren van Themaat Staatsreg (1981) 76 ff.
discretion. However, the democratisation of the British political system during the
sixteenth and seventeenth centuries, which restricted the authority of the monarch in
favour of parliament, increasingly curbed the personal discretion of the monarch in
the exercise of the prerogatives. Eventually, the monarch could exercise them only
in accordance with the advice of the government (cabinet). Peculiar to the British
approach, this situation developed and was secured solely because those involved
repeatedly acted in a particular way. Quite a number of constitutional practices or
conventions developed to restrict the powers or prerogatives of the monarch.
Conventions affect the exercise of powers, with the result that those who formally
have the powers are, in actual fact, obliged to exercise them in a particular way.108 In
this way, conventions shift the responsibility for these powers to those who really
carry political authority, namely the government. After all, it is the government and
not the monarch which is accountable to parliament and the voters for the exercise
of these powers.109
The following are examples of important prerogatives and conventions of the West-
110
minster system. Some of them applied in South Africa in terms of the South Africa
Act and subsequently the 1961 Constitution. Others were included in those Constitu-
tions and therefore became statutory rules of law:
(a) The head of state has the prerogative to appoint ministers, subject to two conventions.
Firstly, the leader of the majority party shall be appointed prime minister, and sec-
111
ondly, the other ministers shall be appointed on the advice of the prime minister.
(b) The head of state has the prerogatives to appoint diplomatic representatives, enter
into treaties, dissolve parliament for a general election, pardon offenders, and issue
passports, subject to the convention that these acts may be performed only in accor-
112
dance with the advice of the government.
(c) The head of state has the prerogative to convene and prorogue parliament, but
in terms of the convention parliament shall be convened at least once a year for a ses-
113
sion.
(d) It is the prerogative of the head of state to approve bills, but the convention
114
prescribes that he or she must assent to a bill adopted by parliament.
Not all conventions apply to the prerogatives of the head of state. The government is
also subject to certain conventions. The ministers in cabinet are, for instance, collec-
tively responsible to parliament for the way in which they govern the country. If par-
liament adopts a motion of no-confidence in the government, the government is
ousted, and a general election takes place, as a result of which another party could be
returned to power, or the head of state asks the leader of the opposition to form a new
government. There is also a convention that a governing party that loses a general
115
election must resign.
________________________
108 Wiechers M VerLoren van Themaat Staatsreg (1981) 172–173.

109 Marshall Constitutional Conventions: The Rules and Forms of Political Accountability (1984) 18
states: “[T]he major purpose of . . . conventions is to give effect to the principles of govern-
mental accountability that constitute the structure of responsible government.”
110 See the extensive exposition by Marshall Constitutional Conventions: The Rules and Forms of
Political Accountability (1984) 19 ff.
111 Marshall Constitutional Conventions: The Rules and Forms of Political Accountability (1984) 29 ff;
Brazier R Constitutional Practice (1988) 6 and 57.
112 Brazier R Constitutional Practice (1988) 145. According to De Smith SA Constitutional and
Administrative Law (1985) 47 this is the primary convention of the British system.
114 Marshall Constitutional Conventions: The Rules and Forms of Political Accountability (1984) 21–22.
115 See Marshall Constitutional Conventions: The Rules and Forms of Political Accountability (1984) 45–
79 and Brazier R Constitutional Practice (1988) 6–43 for full discussions of these conventions.
See also chs 8 and 9.
The question as to the extent to which Westminster conventions still apply in South
African constitutional law, has been considered often in the past, because previous
Constitutions always included a provision that conventions would continue to exist
116
insofar as they were not inconsistent with the Constitution. Although most
conventions were incorporated expressly into those Constitutions, and were from
then on to be regarded as statutory directives (“enacted conventions”), and no
longer as conventions, such a provision served to retain any remaining conventions
117
in our constitutional law. The present Constitution contains no provision with
regard to the continued existence of conventions and the Westminster conventions
thus no longer apply.
Most of the prerogatives of the head of state have also been provided for in leg-
islation. Section 84(2) of the Constitution contains quite a number of powers that
previously were typical prerogatives, for example assent to legislation, summoning of
Parliament, receiving and appointment of diplomats, conferring of honours and
pardoning of offenders. In view of the corresponding provision in the Interim Con-
stitution, it was stated in President of the Republic of South Africa v Hugo that there are
no powers derived from the royal prerogative other than those enumerated in this
118
provision. This is not quite correct, as it seems as if one has remained, namely acts
119
of state (actions relating to foreign relations).
________________________
116 Cf eg s 88 of the 1983 Constitution: “The constitutional and parliamentary conventions which
existed immediately before the commencement of this Act shall continue to exist, except in
so far as they are inconsistent with the provisions of this Act.”
117 In terms of the 1983 Constitution the relevant convention still applied to the appointment of
ministers for own affairs.
118 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) para 8. See also the discussion of the President’s
powers in ch 9 para 2.7.2.
119 See ch 9 para 2.7.2 and Booysen H Volkereg (1989) 365 ff. Until 1994, the issue of passports
was still regarded as a prerogative (see, eg, Sachs v Dönges NO 1950 2 SA 265 (A) and Boesak v
Minister of Home Affairs 1987 3 SA 665 (C)), but in terms of the Passports and Travel Docu-
ments Act 4 of 1994 it has also become a statutory power.
Chapter 4
Community of people
Citizens and foreigners
1 General 37
2 Constitutional provisions on citizenship 40
3 Acquisition of citizenship 41
4 Loss of citizenship 44
5 Resumption and restoration of citizenship 45
6 Citizenship and different levels of government 46
1 General
Every state consists of a community of people.
A community of people is an essential element of the state. A state is created when
government bodies are established to exercise government authority to the highest
level for the people in the territory of that state. The community of people of a state
consists of the citizens and foreigners who are present in the territory of the state.
The term “citizens” describes the permanent inhabitants of a state whose rights and
duties are different from those persons who are not citizens.
The South African Constitution provides that there is a common South African
1
citizenship.
In addition to citizenship, other terms are used in various countries, for example,
nationality.2 In the South African Constitution, citizenship is generally used.3 The
4
provision on children’s rights refers to nationality.
Nationality and citizenship are sometimes used as separate terms, but in practice
they usually have the same meaning. Theoretically, it is possible to distinguish the
5
terms. Nationality may be regarded as an international legal term which indicates
the link between a state and an individual for the purposes of international rela-
tions. Citizenship may be regarded as a constitutional term which denotes the link
between a state and an individual for the purposes of relations within the state. In
practice, the terms are usually used interchangeably, because those persons with the
citizenship of a particular state are almost always also those having that state’s na-
tionality. A distinction between the terms was sometimes made in a colonial context,
whenever colonial powers were not prepared to afford equal rights to their subjects
________________________
1 S 3(1).
2 Olivier WH Aspekte van Burgerskap- en Nasionaliteitsreëlings in State met Besondere Verwysing na die
Republiek van Suid-Afrika (1977 thesis RAU) 46.
3 Eg, in ss 3, 19, 20, 21, 22, 47(1), 174(1) and 193(1) and (3).
4 S 28(1)(a): “Every child has the right . . . to a nationality from birth.”
5 Dugard CJR International Law: A South African Perspective (2000) 208.
37
6
in the colonies. In South African law, no distinction is made between citizenship and
7
nationality. All South African citizens also have South African nationality. The reference
to nationality in the provision on children’s rights has no practical implications.8
The opposite of “citizenship” is “alienage”. Although all persons in the territory of a
state are subject to the law of the state,9 all states distinguish between citizens and
foreigners.
The extent of the rights and obligations of citizens and foreigners differs. Citizens
are the permanent inhabitants of a state. In the South African Constitution, the fol-
lowing rights are guaranteed for citizens only: rights in respect of political parties,
political activities and political choices; the right to free, fair and regular elections;
the right to vote; the right to stand for public office, and if elected, to hold office;
the right not to be deprived of citizenship; the right to enter and remain in the
country and to reside anywhere; the right to a passport; and the right to choose a
10
trade, occupation or profession freely. All other rights in the South African Bill of
11
Rights also apply to foreigners. Should foreigners, in respect of these rights, be
treated differently, it would amount to the limitation of the rights concerned, and of
12
the right to equality. These limitations must comply with the constitutional require-
13
ments for the limitation of rights. Although foreigners are thus sometimes treated
differently, they are not without rights.14
________________________
6 See the examples quoted by Olivier WH Aspekte van Burgerskap- en Nasionaliteitsreëlings in State
met Besondere Verwysing na die Republiek van Suid-Afrika (1977 thesis RAU) 23, 43, 193 and 194.
7 Dugard CJR International Law: A South African Perspective (2000) 348–349 comments as follows
on the word “citizenship” in s 5(3) of the Interim Constitution: “It is clear that the rights of
‘citizenship’ in this provision are intended to include the rights of citizens abroad, ie the rights
attached to nationality.”
8 Pantazis A and Mosikatsana T “Children’s rights” in Chaskalson M et al (eds) Constitutional Law
of South Africa (Revision Service 2 1998) para 33.2.
9 To a greater or lesser extent all states make an exception in the case of diplomatic representa-
tives of other states. See Booysen H Volkereg (1989) 304; Wallace R International Law (1992) 119.
10 Ss 19, 20, 21(3) and (4), and 22. S 37(8) provides that the guarantees concerning detention
during states of emergencies in s 37(6) and (7) do not apply to non-citizens during an interna-
tional armed conflict, but that the state must comply with the standards which bind South Af-
rica in international humanitarian law.
11 See in respect of the right to human dignity, Minister of Home Affairs v Watchenuka 2004 2 BCLR
120 (SCA), 2004 4 SA 326 (SCA) para 25.
12 S 9. In Minister for Welfare and Population Development v Fitzpatrick 2000 7 BCLR 713 (CC), 2000 3
SA 422 (CC), a proscription on the adoption of a child with South African parents by foreign-
ers was invalidated because it was inconsistent with the best interests of the child as protected
in s 28(2) of the Constitution. In view of the invalidation, the court did not find it necessary to
investigate a violation of the right to equality (para 25). The Constitutional Court invalidated
the exclusion of non-citizens from permanent employment as teachers (Larbi-Odam v Member of
the Executive Council for Education (N-W Province) 1997 12 BCLR 1655 (CC), 1998 1 SA 745
(CC)), and the exclusion of permanent residents from receiving certain welfare grants (Khosa
v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC),
2004 6 SA 505 (CC)). The court sustained the validity of the exclusion of non-permanent resi-
dents from registering as security providers (Union of Refugee Women v Director: The Private Secu-
rity Industry Regulatory Authority 2007 4 BCLR 339 (CC), 2007 4 SA 381 (CC)).
13 Viz the general limitation provision in s 36 of the Constitution and other specific limitation
provisions which apply to specific rights. See ch 18.
14 See Nyamakazi v President of Bophuthatswana 1992 4 SA 540 (B) for a comparative overview of
the position of foreigners. See also Katz A “Immigration and the courts: From Xu to Ruyobeza
– ten years under the South African Constitution” in Du Plessis M and Pete S Constitutional
Democracy in South Africa 1994-2004 (2004) 109–118; Fouché P and Rautenbach IM “Deportasie
en die interpretasie van ’n handves van regte” 1992 TSAR 510–511. In Xu v Minister van Binne-
Chapter 4 Community of people – Citizens and foreigners 39
Statutes which specifically deal with foreigners are the Immigration Act 13 of 2002
which deals with their access to, and exit from, the Republic and with temporary and
permanent residence permits, the Aliens Control Act 96 of 1991, and the Refugees
Act 130 of 1998.
The citizens of a state are sometimes treated differently in respect of the content
and extent of their rights.
The rights of a convict are, for example, more restricted than those of a free person,
15
and minors have fewer rights than adults. In states with bills of rights, the unequal
treatment of people is covered by the entrenched equality principle – unequal
16
treatment must comply with the requirements for the limitation of rights. The fact
that the content of citizenship did not entail the same rights and obligations for all
South Africans was the primary cause of social and constitutional change and the
adoption of a new Constitution. Apart from the general equality provision in the Bill
of Rights, the South African Constitution also contains an explicit provision on the
equality of citizens. The Constitution provides that all citizens are equally entitled to
the rights, privileges and benefits of citizenship, and that they are equally subject to
17
the duties and responsibilities of citizenship.
In international law, a general rule applies that a state may only regulate the citizen-
ship of that particular state.
The implication of this is that South African citizenship law may determine only who
South African citizens are and not who the citizens of any other state are. At the
same time, the principle applies that every state may determine its own citizenship
18
without outside interference. This “autonomy” of states may have the result that
more than one state may recognise a particular person as their citizen (dual citizen-
ship) or that no state may recognise the person as citizen (statelessness). Dual citizen-
ship as well as statelessness may bring about serious disadvantages for those con-
cerned and therefore it is attempted, through international treaties, to prevent such
19
a situation. Section 11(2) and (3) of the South African Citizenship Act 88 of 1995
provides that a person who ceases to be a South African citizen under the Act, shall
be regarded as having the citizenship or nationality which she or he had before they
became South African citizens, and if they had no other citizenship or nationality
they shall be regarded as having the citizenship of his or her resposible parent.
________________________
landse Sake 1995 1 BCLR 62 (T), 1995 1 SA 185 (T) the court accepted that foreigners had the
right to approach the court for relief and that they therefore had locus standi in the particular
case. The court, however, decided that they were not bearers of the right to written reasons for
administrative decisions in s 24(c) of the Interim Constitution because they did not have any
“rights or interests” to remain in the country. See also Naidenov v Minister of Home Affairs 1995 7
BCLR 891 (T) and Parekh v Minister of Home Affairs 1996 2 SA 710 (D). However, these cases
were incorrectly decided according to Tettey v Minister of Home Affairs 1999 1 BCLR 68 (D), be-
cause the Constitution, in respect of the right to administrative justice, does not make any dis-
tinction between citizens and foreigners.
15 The right to vote is, eg, only guaranteed for adult citizens in s 19(3) of the Constitution. On the
other hand, s 28 of the Constitution guarantees particular rights for children which do not apply
to adults.
16 See ch 19.
17 S 3(2).
18 Dugard CJR International Law: A South African Perspective (2000) 174.
19 Eg, in the Convention on the Reduction of Statelessness (1961) and the Convention Relating
to the Status of Stateless Persons (1954). See Dugard CJR International Law: A South African Per-
spective (2000) 211.
2 Constitutional provisions on citizenship

Principles relating to citizenship are sometimes included in an entrenched constitu-
tion.19 The South African Constitution contains various provisions on citizenship.20
(a) Reference has already been made to the provisions on a common South African citizenship
21
and the equality of citizens in respect of the rights and duties of citizenship. The provision
on a common South African citizenship entrenches the existence of South African
citizenship. Short of amending the Constitution, parliament may not pass a law
providing that as, from a certain date, there will be no South African citizens, or that
a section of the permanent inhabitants will become the citizens of another state.
(b) Section 20 provides that no citizen may be deprived of citizenship. This section forms
part of the Bill of Rights. It does not contain an absolute guarantee. Provision may
be made for depriving someone of citizenship provided that there is full compliance
with the general limitation clause in section 36. Measures to deprive someone of
22
citizenship will have to be in terms of a law of general application and will have to
be reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom.23
(c) Section 28(1)(a) provides that every child has the right to a nationality from birth. The
international Convention on the Rights of the Child contains a similar provision.24
The provision must also be viewed within the framework of international co-
25
operation to reduce statelessness.
• The provision means, first, that no child who has South African citizenship may
become stateless as a result of the application of legislation dealing with the loss
of South African citizenship.
• It further means that a particular duty exists in respect of stateless children in
general. South Africa cannot confer the citizenship of another state on stateless
children in South Africa, nor can it confer South African citizenship on stateless
26
children in other countries. The duty in terms of the provision thus means that
South African citizenship must be granted to stateless children who reside in
27
South Africa.
________________________
20 Eg, the first part of the fourteenth amendment of the American Constitution reads: “All
persons born and naturalized in the United States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.” Another example is s 16(1)
of the German Constitution which provides that a person may not be deprived of German citi-
zenship, and that the loss of citizenship may take place only in terms of a law, and against the
wishes of the person, if that person does not thereby become stateless. See iro the meaning of
these provisions Jarass HD and Pieroth B Grundgesetz für die Bundesrepublik Deutschland (2002)
427–432; Maunz T and Zippelius R Deutsches Staatsrecht (1991) 26.
21 S 3(1) and (2) – see para 1 above.
22 See para 4(d) below.
23 See ch 18 in respect of the general limitation clause.
24 A 7 of the Convention on the Rights of the Child provides: “1. The child . . . shall have the
right from birth . . . to acquire a nationality . . . 2. State Parties shall ensure the implementa-
tion of these rights in accordance with their national law and their obligations under the rele-
vant international instruments in this field, in particular where the child would otherwise be
stateless.”
25 See the end of para 1 above.
26 See the last para in para 1 above.
27 See Pantazis A and Mosikatsana T “Children’s rights” in Chaskalson M et al (eds) Constitutional
Law of South Africa (Revision Service 2 1998) para 33.2.
• Like all rights in the Bill of Rights, this is not an absolute right and in both cases
particular conditions which will have to conform to the requirements of the gen-
eral limitation clause could be set.28
(d) Section 3(3) provides that the acquisition, loss and restoration of citizenship must be regu-
lated in national legislation. These matters are dealt with in the South African Citizen-
ship Act 88 of 1995.
In a state with an entrenched bill of rights, all legal rules dealing with citizenship
must comply with all provisions of the bill of rights.
The American Supreme Court has applied various provisions of the Bill of Rights to
the deprivation of citizenship, for example, the prohibition on cruel and unusual
29 30
punishment, the criminal procedural guarantees, and the right to equality.
In Germany, the Federal Constitutional Court invalidated the rule that the citizen-
ship of the father is decisive in the case of citizenship by descent because the rule was
inconsistent with the general equality principle and the provision on gender equal-
31
ity. Consequently, the law was amended to also provide for citizenship by descent if
the mother was a German citizen. A provision that a foreign woman who marries a
German citizen automatically acquires German citizenship has been replaced by
provisions in terms of which men and women are treated equally.32
The right to equality in the South African Bill of Rights fully applies to all citizen-
ship legislation and its application by executive bodies. In addition, the right to just
administrative action applies to all executive and administrative actions in connec-
33
tion with citizenship. This right guarantees to everyone lawful, reasonable and pro-
cedurally fair administrative action and the right to be given written reasons when
rights have been adversely affected.
3 Acquisition of citizenship
3.1 Birth 42
3.2 Descent 42
3.3 Naturalisation 43
3.4 Marriage 44
The South African Citizenship Act of 1995 contains the three generally recognised
ways in which citizenship may be acquired, namely by birth in the territory of a state
(ius soli), descent from persons who are citizens of the state (ius sanguinis) and
naturalisation.
________________________
28 The Convention on the Reduction of Statelessness contains examples of conditions.

29 In Trop v Dulles (1958) 356 US 86, it was held that the deprivation of citizenship on account of
the fact that a person had been found guilty of desertion during wartime was punishment that
was inconsistent with the prohibition on cruel and unusual punishment in the eighth amend-
ment to the Constitution.
30 In Schneider v Rusk (1964) 377 US 163 it was held that in terms of the right to equality guaran-
teed implicitly by the fifth amendment to the Constitution in respect of federal actions, natu-
ralised citizens may not be deprived of their citizenship on other grounds than citizens by
birth.
31 S 3(1) and (2); BVerfGE 37, 244 ff.
32 Maunz T and Zippelius R Deutsches Staatsrecht (1991) 25.
33 S 33. See ch 26 para 2.
3.1 Birth
The general rule is that all persons born in South African territory are South African
citizens. South African citizenship provisions also consider birth outside the territory
with at least one parent with South African citizenship, as acquisition of citizenship
by birth.
(a) A person who was a South African citizen by birth immediately prior to the
34
commencement of the South African Citizenship Amendment Act is a South
35
African citizen by birth.
(b) Any person born in the Republic is a citizen by birth if one of his or her parents is
36
a South African citizen at the time of his or her birth.
(c) Any person born in the Republic who is not a South African citizen by birth because
he or she was not a citizen by birth prior to the commencement of the act, or be-
cause at least one of the parents is not a South African citizen at the time of birth,
the person shall be a South African citizen by birth if
• he or she does not have the citizenship or nationality of any other country, or has
no right to such citizenship or nationality; and
• his or her birth is registered in the Republic in accordance with the Births and
37
Deaths Registration Act, 1992.
(d) Any person born in the Republic of parents who have been admitted into the
Republic for permanent residence and who is not a South African citizen qualifies to
be a South African citizen by birth, if he or she has lived in the Republic from the
date of his or her birth to the date of becoming a major and his or her birth is
registered in the Republic in accordance with the Births and Deaths Registration
38
Act, 1992. The same rule applies to a person born in the Republic but whose parents
are neither South African citizens nor permanent residents. The Citizenship Act
39
deals with this instance under the heading Citizenship by naturalisation.
(e) Any person born outside the Republic is a citizen by birth if one of his or her par-
ents is a South African citizen at the time of his or her birth. 40 Although the citizen-
ship of a person born outside the Republic is in this case based on the South African
citizenship of a parent, and it is thus strictly speaking an instance of citizenship by
descent, the Act provides that it shall be considered to be South African citizenship
by birth.
(f) Birth in an aircraft or on a ship is presumed to be birth in the state to which the
aircraft or ship belongs, or where it is registered, and not birth in the state in which
the aircraft or ship is physically present at that moment.41
3.2 Descent
Citizenship by descent in South Africa now only applies to persons born outside
South Africa and who were subsequently adopted by a South African citizen.
________________________
34 On 7 December 2010.
35 S 2(1)(a) of Act 88 of 1995 as amended. Unless indicated otherwise, all references to sections
are to Act 88 of 1995, as amended by the South African Citizenship Amendment Act 7 of 2010.
36 S 2(1)(b).
37 S 2(2).
38 S 2(3).
39 S 3(3).
40 S 2(1)(b).
41 S 1A(2)(a).
Any person who is adopted in terms of the provisions of the Children’s Act by a
South African citizen and whose birth is registered in accordance with the provisions
of the Births and Deaths Registration Act, 1992, shall be a South African citizen by
42
descent.
3.3 Naturalisation
Naturalisation is the way in which foreigners who settle in the state and comply with
certain requirements acquire citizenship.
A person who was a South African citizen by naturalisation immediately prior to the
commencement of the South African Citizenship Amendment Act43 is a South
African citizen by naturalisation.44
Normally, citizenship by naturalisation is granted by the minister of home
affairs on application. The following cases can be distinguished:45
(a) A foreigner who complies with the following qualifications:
• adulthood;
• admittance for permanent residence;
• ordinary residence in the Republic (that is, residence which may be interrupted
by temporary absence) for a continuous period of not less than five years imme-
diately preceding the date of his or her application;46 any period of time spent
outside the Republic by a person (or as the spouse of a person) in the service of
the government or on a locally registered ship, aircraft or public means of trans-
port is, subject to certain qualifications, also taken into account; any period of
time during which a person is detained in the Republic after being convicted, or
has sojourned in the Republic non-permanently or illegally, is not taken into ac-
count;
• good character;
• the intention to reside in the Republic or enter into, or continue in, the service
of the government, an international organisation of which the Republic is a
member, or a person or association resident or established in South Africa;
• satisfactory ability to communicate in any one of the official languages;
• adequate knowledge of the responsibilities and privileges of South African citi-
zenship;
• he or she is a citizen of a country that allows dual citizenship, provided that in
the case where dual citizenship is not allowed by his or her country, such person
renounces the citizenship of that country and furnishes the minister with the
prescribed proof of such renunciation.
(b) A minor foreigner may be naturalised on application by the responsible parent or
guardian if the person permanently and lawfully resides in the Republic.
________________________
42 S 3.
43 On 7 December 2010.
44 S 4(1)(a) of Act 88 of 1995. Unless indicated otherwise, all references to sections are to Act 88
of 1995, as amended by the South African Citizenship Amendment Act 7 of 2010.
45 S 5.
46 The terms permanent residence, ordinary residence and residence were analysed in Biro v
Minister of the Interior 1957 1 SA 234 (T).
(c) A foreigner who is or was the spouse of a South African citizen, and is admitted to
enter the country for permanent residence, may be naturalised if the person has,
after the marriage, resided with the spouse in the Republic, or outside (if she or he
was employed in the service of the government).
Applicants above the age of 18 years must make a declaration of allegiance.
The minister must reconsider an application which has been refused if new in-
formation is received which might have influenced the original decision. Otherwise
the minister is not obliged to reconsider such an application, and may not do so
within one year of the refusal.
3.4 Marriage
According to South African law, marriage does not affect the citizenship of a person.
A person who marries (or enters into a customary union with) a South African citizen
will not acquire South African citizenship simply by reason of such a marriage, and a
South African citizen who marries a foreigner will not lose his or her citizenship as a
47
result of such a marriage. This rule gives effect to the prohibition of unfair dis-
crimination on the ground of marital status in the equality provision of the Bill of
48
Rights.
4 Loss of citizenship
With regard to the loss of citizenship, a distinction can be made between voluntary
renunciation, the presence of circumstances in which citizenship is lost auto-
matically, and deprivation of citizenship by the executive.
In South African law extensive arrangements apply in this regard. The various
possibilities are referred to only in broad terms:
(a) Renunciation in a formal declaration by a person who also has the citizenship or
nationality of another country, or who intends to accept the citizenship or national-
ity of another country.49
(b) Acquisition of the citizenship or nationality of another state by some or other voluntary
and formal action while a person who is not a minor is outside the Republic. This
does not include marriage to a foreigner, irrespective of what the law of the state of
50
which the foreigner is a citizen, provides.
(c) Service in the armed forces of a foreign state if the person also has the citizenship of
that other state and there is a war between the Republic and that state.51
(d) Engagement by a person with citizenship by naturalisation in a war under the flag of
52
another country that the Republic does not support.
________________________
47 S 14. A 1 of the International Convention on the Nationality of Married Women (1957)

provides: “Each Contracting State agrees that neither the celebration nor the dissolution of a
marriage between one of its nationals and an alien, nor the change in nationality by the hus-
band during marriage, shall automatically affect the nationality of the wife.”
48 S 9(3) of the Constitution.
49 S 7.
50 S 6(1)(a).
51 S 6(1)(b).
52 S 6(3).
53
(e) Deprivation by the minister:
(i) In the case of citizenship by naturalisation, the minister may deprive a person
of her or his citizenship if:
• the certificate was obtained by means of fraud, false representation or
concealment of facts; or
• the certificate was granted in conflict with the act or any prior law.
(ii) The minister may deprive any South African citizen who also has the citizen-
ship or nationality of another country, of his or her citizenship if:
• the person has at any time been sentenced in any country to imprison-
ment of not less than 12 months for an offence which, if it was commit-
ted outside the Republic, would also have constituted an offence in the
Republic; or
• the minister is satisfied that it is in the public interest that such a person
shall cease to be a South African citizen; or
• the person has at any time made use of the franchise or a passport of
the other country or performed a voluntary act which, to the satisfaction
of the minister, indicates that the person has made use of the citizen-
ship or nationality of that other country.
(f) Deprivation in the case of children. The Act also provides that whenever the respon-
sible parent of a minor has ceased to be a South African citizen, the minister may,
with due regard to the provisions of the Children’s Act, order that such minor, if he
or she was born outside the Republic and is under the age of 18 years, shall cease to
be a South African citizen. 54
5 Resumption and restoration of citizenship

Citizenship lost can be resumed under certain circumstances.
The South African Citizenship Act provides for the resumption of South African
citizenship, inter alia by persons who have lost it as minors in terms of prior acts or
because their parents have lost their citizenship. Such resumption may take place at
55
any time after the person has attained the age of 18 years. The minister may restore
the citizenship of a person who has lost it because the person has made use of the
citizenship of another state, and the act also provides for the resumption and restor-
56
ation of citizenship after it has been lost on other grounds.
The independence of Transkei, Bophuthatswana, Venda and Ciskei was termi-
nated by the Interim Constitution. The position of the citizens of these former
independent states was regulated in the Restoration and Extension of South African
Citizenship Act 196 of 1993. The Act restored the South African citizenship of
everyone who had lost it as a result of the independence of these territories. The Act
was repealed by the South African Citizenship Act, but all persons concerned have
retained their South African citizenship in terms of the transitional provisions of the
57
last-mentioned Act.
________________________
53 S 8. S 25 of the Act provides that a high court may review any decision of the minister under
the Act and that the review includes a consideration of the merits of the issue.
54 S 10.
55 S 13(2).
56 S 13(3).
57 Ss 2(1)(a), 3(1)(a), 4(1)(a)(i).
6 Citizenship and different levels of government

In a state with more than one level of government, provision may be made, in addition
to national citizenship, for citizenship that ties people to other levels of government.
Multiple levels of government imply that, in addition to the national level, other
levels exist at which government authority is exercised, for example in regions and
local government areas. As a result, the extent and content of the rights and obli-
gations of the people concerned may differ, for example, among the states of a
federation, and even among different local government areas. Consequently, it is
generally found in federations that, apart from federal citizenship, provision is made
for citizenship of the constituent states. The latter then denotes the permanent inha-
bitants of a particular state of the federation. In Switzerland, in addition to federal
citizenship and citizenship of the cantons (states), there is an obligatory citizenship
of local governments.58
Such arrangements are not “undesirable” forms of dual citizenship such as may
exist between independent states.59 “Citizenship” of the states of a federation, for
example, is merely used as a convenient basis to determine the extent of the rights
and duties of certain persons who find themselves in the territory of the state.
Sometimes, the right to vote, and the right to hold public office, for example, are
not afforded by the states of a federation to all persons who, by chance, are pre-
sent in a particular state. These rights are associated with “residence”, which is
determined according to some or other criterion. The states of a federation never
have the authority to affect federal citizenship, and in most federations the federal
constitution contains a prohibition on unfair discrimination by one of the federal
60
states against the citizens of another state of the federation.
________________________
58 Provision was previously made in South Africa for a citizenship of the former non-independent
homelands (Citizenship of the National States Act 26 of 1970). This arrangement was repealed
by the Interim Constitution. See Rehman v Minister of Home Affairs 1996 2 BCLR 281 (Tk). In
Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western Tembuland
Regional Authority 1998 3 BCLR 314 (Tk), 1998 3 SA 262 (Tk) it was held that for the purposes
of the jurisdiction of regional authority courts in the former Transkei, it was still necessary to
employ the concept “Transkei citizens”.
59 See para 1 supra.
60 Cf the so-called “privileges and immunities” provision in a IV.2 of the American Constitution:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the
several States.”
Chapter 5
Territory
1 General 47
2 Constitutional provisions on territory 47
3 International law provisions on territory 48
4 Exercise of government authority in territory 49
5 Subdivision of territory 49
1 General
Every state has a demarcated territory which is part of the physical space in which
government authority is exercised.
Territory as an element of a state did not develop in Western Europe until the
middle of the sixteenth century. In medieval Western Europe, the emphasis fell
more on a personal bond between ruler and subject than on a demarcated territory
in which government authority was exercised. Strategically important places and
strongholds played a more significant role than an extensive territory with fixed
boundaries.1 Before the establishment of foreign interests in the subcontinent, that
was more or less the position in Southern Africa as well.2
2 Constitutional provisions on territory

The territories of states are often referred to and described in constitutions.
In particular, this occurs when a new state comes into existence. Defining the
territory can be done in different ways, for example, by describing the geographical
boundaries, by referring to the entities which constitute the new state (for example,
existing districts, former colonies or independent states), or by referring to the
3
territory regarded by the international community as the territory of the new state.
Section 1 of the South African Interim Constitution described the national
territory with reference to the territory of the nine provinces of the Republic.4 The
Interim Constitution consolidated the territories of the former self-governing
territories5 and former independent states,6 with those of the new provinces.
________________________
1 Stern K I Das Staatsrecht der Bundesrepublik Deutschland (1977) 193.

2 See ch 2 para 1.
3 S 6 of the South Africa Act referred to the boundaries by of previous colonies and s 14 of the
Constitution of Namibia refers the “territory recognised by the international community
through the organs of the United Nations as Namibia”.
4 S 1(2), according to which the territory of each province is described in a schedule (Schedule 1,
Part 1).
5 KwaZulu, Lebowa, Gazankulu, KaNgwane, KwaNdebele and QwaQwa.
6 Transkei, Bophuthatswana, Venda and Ciskei.
47
The present Constitution does not contain direct references to the territory of the
7
state. This is to be regretted in view of the importance of this essential element of
the state. The extent of the national territory can be inferred from the first section
of chapter 6 (Provinces) which provides that the boundaries of the provinces are
those existing when the Constitution took effect.8
3 International law provisions on territory

The boundaries between states are determined mainly by principles of international
law and by international treaties.
Although it may be important for the purposes of constitutional law to be able to
determine the physical boundaries within which the government authority of a state
9
may be exercised, all matters in respect of the physical boundaries of states (for
example, the determination of boundaries and the acquisition and loss of territory)
for the most part have a bearing on relations between states. Therefore, they are
regulated in detail by international law. A few salient principles of international law
in this regard are the following:
• The territory of a state need not be contiguous. It may be separated by the terri-
10
tory of another state.
• According to international law, the territory of a state also consists of everything
under the surface of the area, as well as the air space above the area to the extent
that it can be controlled by the present state of technology. In addition, the state
exercises certain powers in respect of the adjacent seas – the so-called territorial
11
waters.
• The expansion or reduction of the territory of a state usually affects the interests
of more than one state and international law acknowledges particular ways in
12
which that can be effected, for example by:
– occupation: the acquisition of an area which does not form part of any other
state;
– annexation: the addition by force of territory which forms part of another state;
– prescription: the acquisition through lengthy and uninterrupted occupation of
an area which forms part of another state;
13
– cession: the transfer of a part of its territory by one state to another state;
– adjudication: the transfer of territory by one state to another state in terms of
international adjudication;
– alluviation: the expansion of territory through natural accretion.
However, only one state may initially be involved in changing the boundaries of the
state. That happens when a state, unilaterally and without participation by any other
state, relinquishes its government authority over a particular part of its territory on
________________________
7 Particularly not in the founding provisions in ch 1 of the Constitution.

8 S 103(2).
9 See below.
10 See Booysen H Volkereg (1989) 122 for examples.
11 Booysen H Volkereg (1989); Wallace R International Law (1992) 130 ff.
12 Booysen H Volkereg (1989) 88 ff. See also Jennings R and Watts A I Oppenheim’s International Law
(1992) 677–716.
13 Cession is described by Jennings R and Watts A I Oppenheim’s International Law (1992) 679 as
“the transfer of sovereignty over State territory by the owner-State to another State”.
Chapter 5 Territory 49
which a new state then comes into being. Until the new state comes into being, such
renunciation is, strictly speaking, an internal constitutional action. Whenever a part
of the territory of a state becomes independent, that territory must be defined in the
law in which control over the territory is relinquished. With the independence of
Transkei, Bophuthatswana, Venda and Ciskei, this was done in the different Status
Acts adopted by the South African parliament.
4 Exercise of government authority in territory

Normally, the government bodies of the state exercise government authority only in
the territory of the state.14
This principle entails two aspects.
In a positive sense, it is generally accepted that government bodies of the state may
exercise government authority in respect of all matters and persons (irrespective of
whether they are citizens or aliens) in the territory of the state. An exception is the
15
so-called immunity enjoyed by foreign states and their diplomatic representatives.
A state may also, by agreement, limit the exercise of its government authority in its
own territory; for example, by entering into treaties in relation to disarmament,
demilitarised zones in its territory, the establishment of military bases, joint projects
and the protection of the rights of its citizens.
In a negative sense, it is generally accepted that the government bodies of a state
have no authority to enforce rules of law outside the territory of the state. Certain
exceptions exist. Especially in respect of the exercise of criminal law jurisdiction,
there are various principles which are used in some states to qualify the general
proposition. For example, when the commission of a crime is commenced within
the state, or when a crime is committed in a state but with an effect in another
state;16 the commission of a crime outside the state by a citizen of the state or a
person with particular ties with the state; and international or national law authoris-
ing the prosecution of certain serious crimes (such as piracy and high treason), even
if they have been committed outside the territory of the state.17
5 Subdivision of territory
The territory of a state may be subdivided into different units for various con-
stitutional purposes.
The most prominent examples are the following:
(a) If different levels of government exist in a state, the exercise of government
authority by government bodies at the various levels is for the most part confined to
18
demarcated geographical areas in the state.
________________________
14 See Booysen H Volkereg (1989) ch 9.

15 The object of diplomatic immunity is to enable diplomats to perform their function of repre-
senting their state as effectively as possible (Booysen H Volkereg (1989) 304; Wallace R Interna-
tional Law (1992) 119).
16 In international law, this is called jurisdiction in terms of the territorial principle (Booysen H
Volkereg (1989) 274).
17 See in respect of the South African position Kriegler J Hiemstra Suid-Afrikaanse Strafproses
(1993) 276–277. The rules of international law relating to the open seas provide for this in par-
ticular (Booysen H Volkereg (1989) 350 ff; Wallace R International Law (1992) 144.
18 See in respect of the distribution of government authority among different levels of govern-
ment ch 6 para 3.2.
Such a distribution of government authority occurs in respect of local government
areas as well as larger regions, for example, in states with provincial or federal systems.
Normally, the government bodies established for a particular area may then exercise
their powers in respect of only that area. In federations or states with provinces, the
territory of the constituent states or provinces are often described in the constitution
and such constitutions often provide for special procedures to amend the boundaries
of these territories.
Section 114 of the South African Constitution of 1961 provided that parliament could
amend the boundaries of the provinces only upon receiving a petition from the rele-
19
vant provincial council. Section 29 of the German Constitution contains extensive
provisions for the reorganisation of the federal states. It is provided, inter alia, that
such reorganisation may only happen for certain purposes and with due regard to cer-
20
tain criteria, and a procedure is prescribed which requires the consent of a majority
21
of the inhabitants of the affected states.
The Interim Constitution described the territory of each province in terms of
magisterial districts, geodetical information and other statutory provisions and
proclamations.22
The Constitution provides that the boundaries of the provinces are those existing
when the Constitution took effect.23 This provision is part of the entrenched Consti-
tution. The boundaries of provinces are therefore entrenched. A special procedure
must be followed to alter the boundaries of provinces. This procedure is more diffi-
cult than the ordinary procedure for amending the Constitution. A constitutional
amendment that alters provincial boundaries must be approved by:
• at least two thirds of the members of the National Assembly;
• at least six provinces in the National Council of Provinces; and
24
• the legislatures of the relevant provinces.
In addition, before the National Assembly, the National Council of Provinces, or the
provincial legislatures concerned approve the constitutional amendment, each one
________________________
19 With the creation of self-governing territories and the granting of independence to the TBVC
states, parliament amended provincial boundaries without complying with this provision. The
provision was controversial because the amendment of s 114 was itself not subject to the pro-
cedures prescribed in it – see, amongst others, Beinart B “Parliament and the courts” 1954
South African Law Review 134; Schmidt CWH “Section 114 of the Constitution and the sover-
eignty of parliament” 1962 SALJ 315; Van der Vyver JD “The section 114 controversy and gov-
ernmental anarchy” 1980 SALJ 363; Cowburn v Nasopie (Edms) Bpk 1980 2 SA 547 (NC) 554;
Mpangele v Botha 1982 3 SA 633 (C) and 1982 3 SA 638 (C).
20 Amongst other purposes, so that states will be able to exercise their powers effectively accord-
ing to their size and capacity and with due regard to regional, historical and cultural ties, eco-
nomic expediency and the requirements of spatial planning.
21 For a discussion of s 29 see Stern I Das Staatsrecht der Bundesrepublik Deutschland (1977).
22 S 124(2) and part 1 schedule 1. Certain disputed areas were identified and the provincial
boundaries could be altered within six months of the commencement of the Interim Constitu-
tion upon referenda on the amendments being held in the affected areas (s 124(3)–(10)). No
provincial boundaries were changed in terms of these provisions.
23 S 103(2). The boundaries are therefore those described in part 1 schedule 1 of the Interim
Constitution.
24 S 74(3) and (8). These provisions were discussed in Matatiele Municipality v President of the RSA
2007 1 BCLR 47 (CC), 2007 6 SA 477(CC). See also ch 11 para 2.2.
Chapter 5 Territory 51
of them must facilitate public involvement on the matter, for example, by means of
25
public hearings.
Usually, the demarcation of local government areas is also regulated extensively by
law.26 The Constitution provides that national legislation must establish criteria and
27
procedures for the demarcation of municipal boundaries by an independent authority.
(b) The territory of a state is often subdivided for the purposes of the election of
representatives by the electorate.
One of the recognised ways in which the voters are represented in the legislative
authority at all levels is by the election of one or more representatives in particular
geographically demarcated areas. The demarcation of constituencies, electoral districts,
28
electoral regions or electoral wards is a key element of many electoral systems.
________________________
25 Ss 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution. The implications of these provisions
for constitutional amendments that change provincial boundaries were discussed in Matatiele
Municipality v President of the RSA 2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC) paras 33–75.
26 See ch 12.
27 S 155(3)(b). See the Local Government: Municipal Demarcation Act 27 of 1998. The powers of
the demarcation board do not include the power to change provincial boundaries when it de-
marcates municipal boundaries – Matatiele Municipality v President of the RSA 2006 5 BCLR 622
(CC), 2006 5 SA 47 (CC) paras 49–51.
28 See ch 8 para 2.3.3.
Chapter 6
Government authority
1 Definitions 53
2 Origin of government authority 57
3 Distribution of government authority 58
4 State institutions supporting democracy 69
5 Independent exercise of government authority 71
In chapter 1, the statement “the state raises taxes, makes laws and ensures that the
laws are executed” refers to the fact that there are institutions in the state that exer-
cise government authority. The exercise of government authority by the organs of
the state (government bodies) is one of the characteristics of a state. In this chapter
the following matters are discussed:
• the meaning and origin of these and related terms;
• the distribution of government authority between different government bodies
and levels; and
• state institutions supporting democracy; and
• the independent exercise of government authority within the state territory.
1 Definitions
(a) “Authority” can be described as the power or right to order or prescribe, and the
power or right to enforce such order.1
“Authority” may therefore also be described as the power to act coercively.2 The
term “power” is often used as a synonym for “authority” and the same happens when
one refers to the term “separation of powers”.
(b) The term “government body” refers to a person, or body of persons, that
exercises authority as an official instrument of the state.
Authority can be exercised in a state only by people individually, or by a group of
persons acting jointly. People who individually or jointly exercise authority on behalf
of the state are called government bodies. According to the definition of an organ of
state in section 239 of the Constitution, the following categories of government
bodies may be distinguished:
• Any state department or administration in the national, provincial and local sphere of
government. All such departments and administrations and all their agencies, divi-
sions and officials are organs of state.
________________________
1 Or to make others obey – The Oxford Paperback Dictionary (1983). The term is often also used for
the person or body in which authority is vested.
2 This definition of authority forms the basis of the more extensive definitions sometimes
furnished by writers for the term “government authority”. Cf eg Venter F Die Publiekregtelike Ver-
houding (1985) 167.
53
• Any other functionary or institution that exercises a power or performs a function in terms
of the Constitution or a provincial constitution. This includes a wide range of func-
tionaries and institutions, for example the President and the cabinet, parliament,
the premiers and provincial legislatures, and municipal councils, and institutions
and functionaries such as the Human Rights Commission, the Public Protector,
the Auditor-General, the Electoral Commission, and several other commissions
and bodies created in terms of the Constitution.3
• Any other functionary or institution that exercises a public power or performs a public func-
tion in terms of legislation.4 This definition consists of two parts. First, the functionary or
institution must act in terms of legislation and, secondly, it must exercise a public
power or perform a public function. Both requirements must be satisfied before
5
a functionary or institution can be classified as an organ of state. Not all bodies
that act in terms of legislation, and may thus be described as “statutory bodies”,
perform a public function, for example, a church recognised in terms of legisla-
6
tion. On the other hand, there are institutions that perform public functions,
but not in terms of legislation, for example, a transport company, a private hospi-
tal, or a private organisation for the promotion of tourism or the protection of
the environment. (Numerous other bodies that must comply with certain statu-
tory requirements, or must register with the state, do not really act in terms of the
legislation in question. Examples are banks, insurance companies and other pri-
vate companies that must act in accordance with the applicable legislation, and old
age homes and private schools that must register in terms of legislation, inter alia
7 8
to qualify for subsidies.) Political parties are also regarded as private institutions.
A public power or function refers in the first place to the powers and functions to
be exercised in respect of the functional areas allocated to the state in terms of
9
the Constitution. The provision of education has, for example, been allocated to
the state; hence, institutions that provide education in terms of legislation, such
10
as schools and universities, are organs of state. Secondly, the state may appro-
11
priate a particular matter in terms of ordinary legislation as a public function,
________________________
3 See Independent Electoral Commission v Langeberg Municipality 2001 9 BCLR 883 (CC), 2001 3 SA
925 (CC) para 22; Esack NO v Commission on Gender Equality 2000 7 BCLR 737 (W), 2001 1 SA
1299 (W) 744I–745A; Mkhize v Commission for Conciliation, Mediation and Arbitration 2001 1 SA
338 (LC).
4 S 233 of the Interim Constitution merely provided that an organ of state included any statutory
body or functionary. For an overview of the case law and literature on the meaning of the pro-
vision see Malherbe R “Privatisation and the constitution: some exploratory observations” 2001
TSAR 1,10 and Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 76 n 7.
5 In Goodman Bros (Pty) Ltd v Transnet Ltd 1998 8 BCLR 1024 (W), 1998 4 SA 989 (W) it was held,
eg, that Transnet performed a public function in terms of legislation and, accordingly, was an
organ of state (1031D). See also Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 4
BCLR 301 (CC), 2005 2 SA 359 (CC) paras 67, 76 and 83.
6 See eg the Methodist Church Act 111 of 1978 and the Bible Society of South Africa Act 15 of
1970.
7 An old age home must register in terms of the Aged Persons Act 81 of 1967 in order to qualify
for state subsidies in terms of the Social Assistance Act 59 of 1992. A private school must regis-
ter and must comply with certain requirements in terms of the South African Schools Act 84 of
1996. See in this regard Pienaar G Regsubjektiwiteit en die Regspersoon (1997) 111–114.
8 Idasa v ANC 2005 10 BCLR 995 (C), 2005 5 SA 39 (C) para 32.
9 See (d) below.
10 See on universities Malherbe EFJ “A constitutional perspective on higher education” 1999 Stell
LR 328 335 ff.
11 See (d) below.
Chapter 6 Government authority 55
12
for example, the running of a public broadcasting service or a postal service.
The powers and functions in this regard are then exercised and performed in
terms of the relevant legislation, and the institutions in question are organs of
state.
The definition of an organ of state in section 239 does not include the courts or
judicial officers, probably with the intention that not all provisions of the Constitu-
tion regarding organs of state should apply to the courts. Matters regarding govern-
ment bodies to be considered are, for example, the power of government bodies to
exercise authority, their election or appointment, the extent of and restrictions on
their powers (including the fact that they are bound by the Bill of Rights), and the
competence of individuals and other government bodies to control the actions of
13
such a body.
(c) The terms “authorities” or “government” refer to all or any of the government
14
bodies that exercise authority in, or on behalf of, a state.
There are many government bodies in a state that exercise authority in different
places, at different levels and in respect of different matters. Together, all these
government bodies form the “authorities” or “government”, but one can also refer
to each individually as the “government”. Sometimes, the terms “authorities”, “state”
and “government” are used interchangeably. However, it is more correct to refer to
15
the state as the entity that complies with all the requirements of a state, and to the
“authorities” or “government” as all government bodies that exercise authority in the
state. “Government” usually refers to the government bodies that exercise authority at
the highest or central level, while “authorities” includes government bodies at all
levels.
(d) The term “functional areas” refers to the matters in respect of which the
government exercises authority.
The government exercises authority in respect of particular matters such as foreign
affairs, defence, education, health, housing, law and order, nature conservation,
traffic, water and power supply, and recreation facilities. The Constitution refers to
16
these matters as functional areas. Sometimes reference is made to “government
functions”, but a function refers rather to an action.17 The Constitution uses the
18
term function in the latter sense. In other words, functions refer to actions which
the government performs in respect of its functional areas. The government does
not exercise authority over every conceivable matter, but only over those in respect
of which society so desires. All other matters are left to private initiative. Views on
which matters should be classified as functional areas of the government change
constantly. Terms such as “deregulation” and “privatisation” describe the processes
in terms of which matters are removed from the government’s sphere of authority.
Opposite processes give rise to terms such as “nationalisation”. However, the
________________________
12 See the Broadcasting Act 4 of 1999 and the Postal Services Act 124 of 1998.
13 These aspects are dealt with in various other chapters.
14 See the exposition of Wiechers M VerLoren van Themaat Staatsreg (1981) 7–8.
15 See ch 1 para 1.
16 Ss 44(1)(a)(ii) and (2), 104(1)(b), 125(2), 146(1) and schedules 4 and 5.
17 See Wiechers M Administrative Law (1985) 87. See also ch 9 para 1.1.
18 Eg ss 41(1)(f ) and (g), 84(1), 85(2)(c), 90(2) and (3), 91(2), 92(1) and (2), 97(b), 98, 99,
125(2)(e) and (g), 126, 127, 133(1) and (2), 137, 138, 151(4), 154(1), 155(2)(c), 156(5),
178(4), 179(4), 181(2), 182(2), 184(2), 184(4), 185(4), 187, 188(4), 190(2), 205(2), 210,
214(2)(d), 220, 224(2), 227(1)(a) and 238.
question of which functional areas should be regulated by the state is not only
ideological. The Constitution also imposes limits in that the state must comply with
the norms and requirements of the Constitution when it decides to exercise authority
over a particular functional area. For example, should the state decide to take over
banks and newspapers, this would limit the freedom of trade, occupation and profes-
sion and the freedom of the press, in which case the decision of the state must be
justified in terms of the limitation provisions in the Constitution.
(e) The term “level of government” refers to the vertical distribution of govern-
ment authority among bodies that usually exercise the authority on a nationwide,
regional or other sub-national, or local basis.
The term “level of government” does not connote a single government body only,
but refers to a network of government bodies that jointly exercise authority at the
same level. The distribution of functional areas among different tiers of government
is discussed below in more detail.19 In the continuing debate over regional or provin-
cial government in South Africa, this is one of the key issues.
The South African Constitution refers to “sphere” of government instead of “lev-
el” of government,20 obviously to move away from the traditional hierarchical view of
the relationship between the levels of government and to emphasise the new rela-
tionship of co-operation among them. In itself the use of other terms does not alter
the relationship between them. Even the term “level of government” does not neces-
21
sarily denote a hierarchical relationship. The relationship is determined by the
22
specific arrangements in this regard.
(f) In view of the afore-going, the term “government authority” can be defined as
the right or competence of government bodies at various levels to act in a coercive
capacity in respect of the functional areas allocated to them.
The coercive authority of the government lies in the fact that other bodies or
subjects can be compelled to do or omit something, and that this government
23
authority can be exercised unilaterally. Government authority is expressed in
directives that create or amend legal rules in respect of a particular functional area,
that execute the law, that further the internal and external interests of the country
in various ways, or that apply only to individuals. The government may also be
involved in private law relationships, but then it does not exercise government
authority and public law does not apply to such actions. Not all authority in a state is
exercised by government bodies. One also finds, for example, parental authority,
authority of a church, authority of companies over their shareholders, universities
over their students and associations or sport clubs over their members. The origin of
government authority, the way in which it is vested in the government, the directives
for and the limitations on its exercise, and the way in which it is controlled,
constitutionally as well as judicially, are of interest to constitutional law. Government
authority is not without limits. Fundamental to government authority, is the
________________________
19 See para 3.3 below.

20 Eg s 40(1): “In the Republic, government is constituted as national, provincial and local
spheres of government, which are distinctive, interdependent and interrelated.” See para 3.2
and ch 11.
21 See para 3.3.3.
22 Some writers do read more into the term “sphere” – cf Meyer J Local Government Law 1997
(1998) 6 – but the question is whether this is confirmed by the specific provisions of the Con-
stitution. See chs 11 and 12.
23 Wiechers M Administrative Law (1985) 8.
prerequisite that it must be based on law, and be bound by the law, otherwise it
amounts to the mere exercise of physical power.
2 Origin of government authority

Through the ages, constitutional philosophers identified three main sources of
24
government authority, namely God, the people and the law.
In this paragraph, the effect that different views on the origin of government author-
ity may have in constitutional law, is discussed briefly.
During the Middle Ages, it was generally held that government authority derived
from God, but opinions differed on whether government authority belonged to the
state or the church. The view that authority derived from God was reflected in
section 2 of the 1983 Constitution which read: “The people of the Republic of South
Africa acknowledge the sovereignty and guidance of Almighty God.” This provision
was originally included in the South Africa Act in 1925. In the Interim Constitution
the following appeared in the preamble: “In humble submission to Almighty God
. . .” The preamble to the present Constitution states: “May God protect our people”,
followed by the quote “God bless South Africa” from the national anthem in the
25
official languages.
From the seventeenth until late in the nineteenth century, the Western European
epoch in which the systems of monarchical supremacy made way for full democ-
racies was inspired, inter alia, by theories on the sovereignty of the people. According
to these theories, the people were the sovereign or highest authority in the state.
However, for practical reasons, the people confer authority on government bodies
26
to exercise it on their behalf and under their supervision. This view is expressed in
the preamble to most constitutions, as preambles usually declare in one way or
another that the constitution (in terms of which authority is conferred on govern-
ment bodies) has been ordained by the people. In Britain, which does not have a
written constitution, the sovereignty of parliament is always justified in terms of the
fact that the whole population is represented in parliament.27 Recognition of the
people as the supreme authority may also be included in the provisions of the con-
28
stitution itself.” The social contract doctrine is closely related to the view that
government authority derives from the people. According to that view, government
________________________
24 Wiechers M VerLoren van Themaat Staatsreg (1981) 21 provides an overview of the various
theories in this regard.
25 On the legal implications of these provisions, see Van der Vyver JD Die Juridiese Funksie van
Staat en Kerk (1972) 155–157. See also Van der Vyver JD Die Grondwet van die Republiek van Suid-
Afrika (1984) 63–64; Venter F “Die staatsregtelike soewereiniteit van God” 1977 TSAR 64–70;
Venter F “Die grondwet van die tweede Republiek van Suid-Afrika” 1985 THRHR 256. In In re:
Certification of the Constitution of the Western Cape, 1997 1997 9 BCLR 1167 (CC), 1997 4 SA 795
(CC) para 28 the Constitutional Court stated: “The invocation of a deity in these prefatory
words [“in humble submission to Almighty God”] to the preamble to the Western Cape Consti-
tution has no particular constitutional significance and echoes the peroration to the preamble to
the national Constitution.”
26 Wiechers M VerLoren van Themaat Staatsreg (1981) 17–18.
27 Sir Thomas Smith De Republica Anglorum (1589) II c 1: “The most high and absolute power of the
realm of England consisteth in the parliament . . . For every Englishman is intended to be there
present . . . And the consent of parliament is taken to be every man’s consent.”
28 For example, section 1(2) of the Namibian Constitution reads: “All the power shall vest in the
people of Namibia who shall exercise their sovereignty through the democratic institutions of
the State.”
authority derives from an agreement or contract between the people and the gov-
ernment.
According to the third view, government authority derives from the law and is sub-
ject to the law. As an answer to the philosophical question as to the origin of govern-
ment authority, this approach is unsatisfactory for the very reason that, in modern
29
states, law is made by government bodies. Rules of law are made by humans and
human institutions (government bodies). A statement that government authority
derives from the law, thus means that it derives from those who make the law, irre-
spective of whether it is a people’s assembly, a parliament or a dictator. In other
words, if government bodies derive their authority from the law, they derive it, in
effect, from themselves, as government authority includes the competence to de-
termine the law. Theoretically, the source of a government’s authority to make law
then remains a moot question. Moreover, in view of the explanation in chapter 1
that rules of law always reflect the values of the lawmakers, it remains a question of
which values are underlying the laws from which the government derives its authority.
However, in all systems based on the premise that the government is subject to the
law, the view that government authority derives from the law is the only practical ap-
proach that can be adopted. When somebody alleges that the government has acted
unlawfully, the question is always whether the relevant government body was author-
ised, in terms of some or other legal rule, to perform the action in question. In respect
of the highest government bodies, these rules of law are normally incorporated in the
constitution and that is why constitutions often contain a provision stating that the
constitution is the supreme law of the land. Section 2 of the South African Constitu-
tion provides: “This Constitution is the supreme law of the Republic . . .”.
3 Distribution of government authority

3.1 The separation of powers 58
3.2 Levels of government 65
3.1 The separation of powers

3.1.1 Definition 58
3.1.2 Separation of powers in Britain, America and South Africa 59
3.1.3 Separation of powers in practice 61
3.1.4 Delegated legislation 64
3.1.5 Contribution of the doctrine 64
3.1.1 Definition
The doctrine of the separation of powers entails that the freedom of the citizens of a
state can be ensured only if a concentration of power, which can lead to abuse, is
prevented by a division of government authority into legislative, executive and judicial
authority, and its exercise by different government bodies.30
________________________
29 Therefore, the theory is only sound if the ancient Germanic view is accepted that the law is an
unalterable fact and that the government does not create, but merely finds the law.
30 For a full exposition see Vile MJC Constitutionalism and the Separation of Powers (1967). See also
SA Law Commission Report on Constitutional Models (1991) 727 ff; Van der Vyver JD “The separa-
tion of powers” 1993 SA Public Law 177; Rienow R Introduction to Government (1964) 228 ff.
Any discussion of the term government authority would be incomplete without re-
ference to the separation of powers doctrine, the trias politica. The doctrine of
separation of powers has had tremendous influence on the development of modern
politics and constitutional law. Despite criticism that it is impossible, in theory and
in practice, to separate legislative, executive and judicial authority completely,31 this
separation became, at least formally, the most common feature of all constitutional
systems. There is virtually no constitution in which the distinction is not made
formally and in which different government bodies are not established along these
32
lines. The distinction, more-over, is usually made at all levels of government. The
meaning of the terms legislative, executive and judicial authority is thus of great
significance in constitutional law:
• Legislative authority is the power to make, amend and repeal rules of law.
• Executive authority is the power to execute and enforce rules of law.
• Judicial authority is the power, in disputes, to determine what the law is and how
it should be applied in the dispute.
In theory, the distinction between the three branches means that the government
body or bodies responsible for the enactment of rules of law shall not also be charg-
ed with their execution or with judicial decisions about them. The executive author-
ity is not supposed to enact law or to administer justice, and the judicial authority
33
should not enact or execute laws. However, no system exists in which a complete
separation of government authority can be found, or in which the various govern-
34
ment bodies function in total isolation from one another.
3.1.2 Separation of powers in Britain, America and South Africa

The British, American and South African systems illustrate the varying degrees of
separation that may occur:
(a) The British Westminster System is an example of a relative separation of powers. In
the Westminster system:
• the legislative authority is vested in parliament consisting of the monarch, the
House of Commons and the House of Lords (although the decisions of the
House of Commons always carry more weight);
• the executive authority is vested in the monarch and cabinet (although in terms
of convention, the monarch may act only in accordance with the advice of the
35
cabinet);
• the judicial authority is vested in the courts (which cannot, however, invalidate
laws of parliament).
So much overlap exists that the separation of powers in the Westminster system is at
best relative. The monarch is head of the legislative as well as of the executive
authority. The members of cabinet are members of parliament as well and are, in
fact, appointed by the leader of the majority party in the House of Commons (the
________________________
31 See eg Henning PJvR “Die administratiewe staat” 1968 THRHR 1.

32 See on levels of government para 3.3 below.
33 SA Law Commission Report on Constitutional Models (1991) 730.
(CC) para 109; De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) para 60.
35 See on conventions ch 3 para 3.3.
36
prime minister). This, on the one hand, implies that the cabinet must execute the
will of the majority in the Commons and must resign as soon as it loses majority
support. On the other hand, it means that the cabinet, as long as it does enjoy ma-
jority support, is able to have all legislation it may deem necessary approved by par-
liament. In the past, the House of Lords functioned as the highest judicial body in
the state, but has been replaced as the highest judicial body by the Supreme Court
37
since October 2009.
38
(b) The separation of powers has been carried furthest in the American system:
• Federal legislative authority is vested in congress, which is neither formally nor
informally linked to the executive. Congress consists of the Senate and the House
of Representatives. Congress does not, either directly or indirectly, designate the
President, the President is not dependent on majority support in congress, and
congress retains formal legislative initiative.
• Federal executive authority is vested in the President, who is elected independ-
39
ently of congress for a fixed term. The President and cabinet are not members
of congress, they are not dependent on majority support in congress, and the
40
President may veto bills approved by congress.
• Judicial authority is vested in the courts and, since the Constitution is supreme
and cannot be amended unilaterally by congress, the courts may invalidate laws
41
made by congress that conflict with the Constitution.
Some measure of overlap and interdependence among the three branches of
government nevertheless exists. Senior presidential appointments must be con-
sented to by congress and congress may impeach the President for misbehaviour.
42
Formally, the President may veto legislation by congress, and the most important
bill adopted by congress, the budget, is in any case initiated by the executive.43 The
President also appoints the justices of the federal courts, with the consent of cong-
ress. This measure of interdependence emanates from the view that it is inherent in
the separation of powers that the three branches shall control one another – the so-
called system of checks and balances.
________________________
36 In terms of the convention the monarch appoints as prime minister the leader of the majority
party and on his or her advice the other ministers (ch 3).
37 The Supreme Court was established in terms of the Constitutional Reform Act of 2005. Litera-
ture on the Westminster system is cited in ch 3. See on the separation of powers specifically in
Britain Bradley AW and Ewing KD Constitutional and Administrative Law (2003) 78 ff.
38 See on the American system eg Maclean JC (ed) President and Congress: The Conflict of Powers
(1955); Chelf CP Congress in the American System (1977); Cox A The Role of the Supreme Court in
American Government (1976); Edwards GC Presidential Influence in Congress (1980); Moe RC Con-
gress and the President: Allies and Adversaries (1971).
39 Formally the president is designated by an electoral college that is directly elected by the voters
in a nationwide poll (a II(1) of the American Constitution).
40 See eg Watson RA “The President’s veto power” 1988 Annals of the American Academy of Political
and Social Science 36.
41 See in general Lockhart WB, Kamisar Y, Choper JH and Shiffrin SH Constitutional Law (1986);
Rotunda RD Modern Constitutional Law (1985); Woll P Constitutional Law: Cases and Comments
(1981).
42 Congress can override such a veto by a two-thirds majority in both houses (a I(7)(2) of the
American Constitution).
43 See eg Chamberlain LH “The President as legislator” in Maclean JC (ed) President and Congress:
The Conflict of Powers (1955) 56 ff; Keefe WJ and Ogul MS The American Legislative Process: Con-
gress and the States (1997) 370 ff.
(c) Initially, the relative separation of powers according to the Westminster model
was followed closely in South Africa, and it still forms the basis of the relationship
between the legislative, executive and judicial authority.44 However, in terms of the
1983 Constitution, the State President, as head of state, ceased to be a member of
45
parliament as the prime minister had been. This approach was carried over to the
Interim Constitution and also to the present Constitution. In addition, the head of
state is no longer described as a part of the legislative authority. In terms of the
Constitution:
• the legislative authority at national level is vested in parliament;46
47
• executive authority is vested in the President; and
48
• judicial authority is vested in the courts.
However, a large degree of interdependence still exists. The President is elected by
parliament and parliament can also remove the President from office on account of
49
misconduct, inability or a serious violation of the law. The President’s term of
50
office is tied to that of parliament and the President must resign if parliament
51
adopts a motion of no-confidence in the cabinet. After her or his election, the
President may not remain a member of parliament, but in general, ministers must
52
be members of parliament. Bills adopted by parliament shall be assented to by the
53
President. Furthermore, judges are appointed by the executive authority, although
the legislative and judicial authorities are indirectly involved in the matter.54
3.1.3 Separation of powers in practice

55
In the first Certification judgment the Constitutional Court had to decide whether
the provision in the Constitution that members of cabinet must also be members of
56
parliament was inconsistent with the separation of powers doctrine. According to
the court, there is no universal model of separation of powers and each state follows
its own model. Furthermore, in no system is the separation of powers absolute, inter
alia because there are checks and balances in a democracy that impose restraints by
one branch on another. The overlap in the South African Constitution between the
legislative and executive authority strengthens the accountability of the executive to
the legislature and does not infringe the doctrine. As a matter of fact, the Con-
stitution reflects a balance between an over-concentration of power and the
necessity of effective government. The constitutional principles require only that the
separation of powers doctrine be applied in the Constitution and does not prescribe
what form it should take. The form it takes in the Constitution is not inconsistent with
________________________
44 See the South Africa Act and the 1961 Constitution.

45 S 7(6) Act 110 of 1983.
46 S 43(a).
47 S 85(1).
48 S 165(1).
49 Ss 86 and 89, respectively.
50 S 88.
51 S 102(2).
52 S 91(3). Provision has been made for no more than two ministers who need not be members
of parliament (s 91(3)(c)).
53 S 79(1).
54 S 174. On the involvement of parliament see s 178.
(CC) paras 106–113.
56 As required by constitutional principle VI.
the constitutional principles. The court also stated that the inclusion of social and
economic rights in the bill of rights has not imposed any function on the courts that
are different from their normal function and the inclusion has therefore not been
inconsistent with the separation of powers.57
The Constitutional Court regularly delivers judgment on the application of the
separation of powers.
• In the Western Cape case it was decided that it was inconsistent with the doctrine
58
for parliament to delegate the power to amend its laws to the President.
• It was stated that the right of access to the courts was inter alia aimed at protect-
ing the independence of the courts and thus the separation of powers.59
• The power to commit to prison an unco-operative witness in an insolvency inves-
tigation is, according to the Court, a typical judicial power which may not be ex-
60
ercised by non-judicial officers.
• In South African Association of Personal Injury Lawyers v Heath it was held that the
Special Investigating Unit performs executive functions that are inconsistent with
the judicial functions of a judge, and that the provision in the relevant Act re-
quiring the President to appoint a judge as head of the unit was unconstitu-
61
tional.
• In S v Dodo it was held that, although sentencing is a judicial function, a law pre-
scribing a mandatory minimum sentence was not inconsistent with the separation
62
of powers as the legislature also has a responsibility in respect of sentencing.
• The Court also held that the conferral on the speaker of a provincial legislature
of the power to make regulations, and to determine the date for the commence-
ment of a law, which is normally conferred on the executive, does not affect the
63
separation of powers.
• In International Trade Administration Commission v SCAW South Africa (Pty) Ltd, the
Constitutional Court set aside a high court interim interdict restraining the min-
ister of trade and industry from accepting a recommendation from a commission
and requesting the minister to terminate certain anti-dumping dispensations,
________________________
57 In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (KH), 1996 4 SA 744
(KH) par 77.
58 Executive Council, Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC), 1995 4
SA 877 (CC). See also Freedman W “Fact or fiction: non-delegation limits on Parliament’s au-
thority to delegate subordinate regulatory authority” 2007 THRHR 166–174 on the delegation
of the authority to make regulations.
59 Bernstein v Bester NO 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) para 105. See also Ex parte
Attorney-General, Namibia: In re: The Constitutional Relationship between the Attorney-General and the
Prosecutor-General 1995 8 BCLR 1070 (NmS), in which the independence of the prosecuting au-
thority has, inter alia, also been based on the separation of powers doctrine.
60 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) paras 60–61. S 66(3) of the
Insolvency Act 24 of 1936, in terms of which the presiding officer at an insolvency investigation
may commit to prison an unco-operative witness, was accordingly declared invalid.
61 2001 1 BCLR 77 (CC), 2001 1 SA 883 (CC) paras 38 45 46 in which s 3(1) of Act 74 of 1996 was
accordingly declared invalid. See the discussion by Sarkin J “Evaluating the Constitutional
Court’s decision in South African Association of Personal Injury Lawyers v Heath & Others in the
context of crime and corruption in South Africa” 2001 SALJ 747 756 760.
62 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC) paras 22–25.
63 In re: Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1 SA
447 (CC) paras 17–20 and 25. See Christison A and Freedman W “The separation of powers
and the non-delegation doctrine” 2004 Obiter 242–250.
because the order violated the doctrine of separation of powers. The court stat-
ed: “The order trenches on the principle of separation of powers, the Court may
not without justification trench upon the polycentric policy terrain of interna-
tional trade and its comitant foreign relations or diplomatic considerations re-
served by the Constitution for the national executive.”64 The “justification” for
interference by the court would apparently be that the law, policies and actions
in issue are inconsistent with provisions of the Constitution.
• In Glenister v President of the RSA, the Constitutional Court, on the one hand,
accepted that abstract control in terms of sections 79 and 121 of the Constitu-
tion65 are the only instances in which the Constitutional Court may review the
constitutionality of bills under consideration in parliament, but it also, on the
other hand, said that evidence of “demonstrable and irreversible harm that could
not be remedied once the legislation has been enacted”, could be a cause for ju-
dicial intervention with the executive power to initiate legislation and the legisla-
tive power of legislatures to enact it.66
• In NSPCA v Minister of Agriculture, Forestry and Fisheries the Constitutional Court
invalidated sections 2 and 3 of the Performing Animals Protection Act 24 of 1935
to the extent that they authorised magistrates to issue animal training and exhibi-
tion licenses. The court held that a non-judicial function of a member of the
judiciary not provided for in the Constitution violates the doctrine of separation
of powers when it is not closely connected with the core function of the judiciary
and there are no compelling reasons why that function should not be performed
67
by an executive or administrative official.
Despite the rhetoric in these and many other cases about the restraints which courts
must exercise in reviewing the actions of other branches in terms of the constitu-
tional doctrine of separation of powers, the deference to elected institutions and to
the expertise of state administrations, and to the complexity and polycentricism of
issues which must preferably be handled by other branches, there is a very clear con-
stitutional command which may not be diluted by these considerations: section
172(1)(a) provides that when deciding on a constitutional matter within its power a court
must declare that any law or conduct that is inconsistent with the Constitution is invalid.
Opposition to the finding of a court that in a particular case, law or conduct was inconsis-
tent with the Constitution is often expressed in the form of an accusation that the court
has breached the doctrine of separation of powers. An example of this appears in Economic
Freedom Fighters v Speaker of the National Assembly in which the Constitutional Court ordered
the National Assembly to make rules regulating the impeachment of a President under
section 89(1) of the Constitution. In a minority judgment Mogoeng CJ said that the
majority judgment was “textbook case of judicial overreach – a constitutionally impermis-
68
sible intrusion by the Judiciary into the exclusive domain of Parliament.” Judges support-
ing the judgment of the court said that this statement of the Chief Justice was “misplaced
________________________
64 International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2010 5 BCLR 457
(CC) para 104.
65 See ch 10 par 5.2.2 on abstract judicial control.
66 Glenister v President of the RSA 2009 2 BCLR 136 (CC), 2009 1 SA 287 (CC) paras 40, 49 and 50.
67 NSPCA v Minister of Agriculture, Forestry and Fisheries 2013 10 BCLR 1159 (CC), 2013 5 SA 571
(CC) para 38. For a discussion of the case, see Bilchitz D “What was left unsaid: the unconstitu-
tionality of the Performing Animals Protection Act in NSPCA v Minister of Agriculture, Forestry
and Fisheries” 2014 SAJHR 183-195.
68 Economic Freedom Fighters v Speaker of the National Assembly 2018 3 BCLR 259 (CC), 2018 2 SA 571
(CC) para 223.
and unfortunate”, because the discharge of the judicial function “cannot amount to over-
reach whether one agrees or disagrees with a judgment that construes and applies the
Constitution in a particular way”; substantive reasons were advanced for all the judgments
69
in the case and the judgments were the products of serious, detached reasoning.
3.1.4 Delegated legislation

In as much as parliamentary legislation cannot provide for all the details required by
modern government, the executive is increasingly authorised by the legislative
70
authority to enact subordinate or delegated legislation. The result of this phenomenon
is that today most legislation is enacted by the executive authority, and that, although
71
it is not regarded as inconsistent with the separation of powers, in most states the
72
separation between the legislative and executive authority has become blurred.
This tendency is reinforced by the role played by the executive in respect of the
73
initiation of parliamentary legislation.
3.1.5 Contribution of the doctrine
In democratic systems, a lesser degree of separation of powers does not necessarily
indicate an excessive degree of concentration of power, as other forms of control to
74
prevent abuse of power can exist. The most salient of these are free and regular
elections, a free press, and an informed electorate. The motivation for the separation
of powers doctrine, namely to prevent the over-concentration of government authority
in a single government body, is nonetheless still of paramount importance. Usually,
the first step by revolutionary regimes is to suspend the constitution and
centralisethe legislative, executive and judicial authority in a single junta or military
council. However, the primary contribution of the doctrine, as previously mentioned,
was that the functional distinction between the legislative, executive and judicial
authority formally became a key component of modern constitutional law. This
systematised the study of constitutional law.
________________________
(CC) para 219 per Jafta J and paras 280-281 per Froneman J.
70 Rienow R Introduction to Government (1964) 237–238. See also Kachelhoffer GC Die Betekenis van
Ondergeskikte Wetgewing vir die Administratiefreg in Suid-Afrika (1972 thesis Unisa); Du Plessis LM
“Enkele opmerkings oor die status en hiërargie van wetgewing onder die nuwe grondwetlike
bedeling” 1999 TSAR 128; “The status of legislation and the realisation of constitutional values
in the new constitutional dispensation” 2000 Stell LR 192; Re-Interpretation of Statutes (2002) 37 ff.
(CC) para 51.
72 Formally, through control over all subordinate legislation, the legislature is still in charge, but
in reality, as a result of the volume and complexity of such legislation, the control is not exer-
cised effectively. See eg Kersell JE Parliamentary Supervision of Delegated Legislation (1960);
Sheshadri P Parliamentary Control over Delegated Legislation (1974); Beatson J “Legislative control
of administrative rulemaking: lessons from the British experience?” 1979 Cornell International
Law Journal 199; Page EC Governing by Numbers: Delegated Legislation and Everyday Policy-making
(2001); Feldman D “Parliamentary scrutiny of legislation and human rights” 2002 Public Law
323. See also Kriel R “Codifying pre-adoption procedures for subordinate legislation in South
Africa” 1997 SAJHR 354–372; Murray C and Nijzink L Building Representative Democracy: South
Africa’s Legislatures and the Constitution (2002) 106-108 who emphasise the control or oversight
responsibilities of legislatures iro subordinate legislation.
73 See in this regard ch 8 para 2.5.7.
74 Note again the view of the Constitutional Court in this regard in In re: Certification of the Consti-
tution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC), particularly paras 108–
109.
3.2 Levels of government

3.2.1 Number of levels 65
3.2.2 Functional areas 65
3.2.3 The relationship between levels of government 65
3.2.4 Basis for distinction 66
3.2.5 Union and federation 67
Government authority may be distributed among government bodies that function,
for example, on a nationwide, regional or local basis.
3.2.1 Number of levels

A threefold division is normally used, namely the national level, the regional level
and the local level.75 It is possible to have more or fewer tiers of government in a
particular state. The number is determined by historical, political, geographical,
economic and administrative considerations. The nature or distribution of the
population and the size of the state may also be deciding factors. The South African
Constitution expressly provides for three spheres of government.76
3.2.2 Functional areas
When it must be decided which functional areas must be performed at which level of
government, historical, political, geographical, economic and administrative factors
are again involved. In public administration various criteria have been developed for
the allocation of government functions to the different levels. These include the
nature of functions and services, the clientele (population) to whom they are
77
delivered, costs, administrative considerations and political factors. A view that
functional areas can be dealt with most effectively at national level (centralisation),
will result in relatively few functional areas allocated to other levels. The opposite
view (decentralisation), will cause more functional areas to be allocated to the
regional and local levels. Subsidiarity is a specific form of the latter view and is based
on a point of departure that decisions should be taken at the lowest possible level.
Higher levels provide support when lower levels are unable to perform a particular
78
function and thus perform only a subsidiary function.
3.2.3 The relationship between levels of government
The relationship between levels of government in any particular state is determined
by the specific arrangements made in the constitution and other statutes. In highly
centralised states government authority is always distributed from higher to lower
government bodies, where the lower body is always subject to the higher authority
________________________
75 Reference is often made in the same sequence to the first, second and third tiers of government.
76 S 40(1). The constitutional principles with which the Constitution had to comply, required:
“Government shall be structured at national, provincial and local levels.” Item XVI of schedule
4 to the Interim Constitution.
77 See eg Self P Administrative Theories and Politics (1972) 55 ff.
78 Van Wyk DH “Subsidiariteit as waarde wat die oop en demokratiese Suid-Afrikaanse gemeen-
skap ten grondslag lê” in Carpenter G (ed) Suprema Lex: Essays on the Constitution presented to
Marinus Wiechers (1998) 251 254; Carpenter G “Cooperative government, devolution of powers
and subsidiarity: the South African perspective” in Konrad Adenauer Stiftung Seminar Report:
Subnational Constitutional Governance (1999) 45 ff. See also Simeon R “Considerations on the
design of federations: the South African constitution in comparative context” 1998 SA Public
Law 42 52: “… the default position should always be local control, and that the burden of
proof should always lie on the person who proposes centralisation.”
and where the latter is always entitled to unilaterally withdraw or alter the relation-
ship. In highly decentralised states (for example, in most federations) authority is
distributed in such a way no tier of government is subject to another tier in respect
of the functional areas and functions assigned to it. The mere existence of “levels” or
“spheres” of government does not imply any particular model.79
In certain instances, general principles have been developed in respect of rela-
tionships between the levels of government.
In Germany, the courts developed a principle of federal comity (Bundestreue) in terms
of which the federal government and the states must co-operate in good faith, must
80
uphold the federal system and may not interfere with the jurisdiction of another.
The principle of co-operative government determines the relationship between the
levels of government in South Africa.
The Constitutional Court stated with regard to the Interim Constitution that the
constitutional distribution of powers required co-operation between the various levels
of government.81 Now, Chapter 3 expressly provides for the principle. Section 41 sets
out the principles which include that government at all levels must promote national
unity, ensure good government, obey the Constitution, respect one another, refrain
from encroaching on one another’s integrity, and co-operate in good faith. Struc-
tures to facilitate inter-governmental relations and for the settlement of disputes
must be established by law.82 The principles are discussed more extensively in chap-
ter 11 paragraph 2.4 and chapter 12 paragraph 2.1.
3.2.4 Basis for distinction

Normally, tiers of government are distinguished on a geographical basis. Government
at the national level functions on a nationwide basis, the regional authorities within
demarcated regions, and the local governments within even smaller areas. How
many regions and municipal areas stand to be demarcated and how they must be
geographically demarcated must again be determined by taking historical, political,
economic, administrative and demographic factors into account.83 These factors all
played a role in the development of the new South African provincial and local
84
government systems.
Government authority can also be distributed on a functional or personal basis. This
means that government institutions are established for certain groups to exercise
________________________
79 See, however, Coetzee S “Die huidige provinsiale regering: is dit nog tweedevlak regering?”
1986 SA Public Law 105.
80 Kommers DP The Constitutional Jurisprudence of the Federal Republic of Germany (1989) 79–82;
Curry DP The Constitution of the Federal Republic of Germany (1994) 77–80; De Villiers B “Inter-
governmental relations: the duty to co-operate: a German perspective” 1994 SA Public Law 430.
81 In re: The National Education Policy Bill No 83 of 1995 1996 4 BCLR 518 (CC), 1996 3 SA 289
(CC) para 34. See also In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253
(CC), 1996 4 SA 744 (CC) para 290.
82 S 41(2) and (3). See the Intergovernmental Relations Framework Act 13 of 2005 – see ch 11
para 2.4.
83 See eg Leonardy U “Demarcation of regions: international perspectives” in De Villiers B and
Sindane J (eds) Regionalism: Problems and Prospects (1993) 1.
84 See eg Dixon ML “Devolution in constitutional law” 1983 TSAR 26; De Villiers B “Grondwetlike
streekontwikkeling in Spanje: enkele riglyne vir die vestiging van streekregerings in Suid-
Afrika” 1989 SA Public Law 242; De Villiers B “Regional government in the new South Africa:
the experience of India and Nigeria” 1992 SA Public Law 89; and specifically with regard to the
new provinces De Coning C “The territorial imperative: towards an evaluation of the provincial
demarcation process” in De Villiers B (ed) Birth of a Constitution (1994) 189 ff.
authority in respect of particular functional areas over the members of such a group,
irrespective of where they live. Such groups can be organised on the basis of ethnic-
cultural, linguistic, religious or (although unacceptable world-wide) racial consid-
85
erations. Belgium, Estonia, Cyprus, and Lebanon are usually mentioned as exam-
ples of such a division.86 In Belgium, for example, separate government institutions
for the French- and Dutch-speaking communities exist. With regard to matters such
as education and culture, these institutions exercise authority over all members of
87
the respective linguistic groups, irrespective of where in Belgium they live. The
South African Constitution gives some recognition to the cultural, religious and
linguistic communities in society. In addition to the language and cultural rights
88
guaranteed in this regard, and the right to form linguistic, cultural and religious
89
associations, the possibility has been created that a community that shares a com-
mon language and cultural heritage can enjoy self-determination within a territorial
entity or otherwise in the Republic.90 Traditional leaders and communities that
observe systems of customary law are also recognised in the Constitution, and there
91
is provision for advisory bodies for these leaders and communities. The establish-
ment of cultural or other councils for cultural, religious and linguistic communities
is also envisaged, but there is no indication in the Constitution about the kind of pow-
92
ers, if any, such councils will have. The establishment of the Commission for the
Promotion and Protection of the Rights of Cultural, Religious and Linguistic Com-
93
munities, that must recommend the establishment of such councils, has thus far
not brought greater clarity on the accommodation of such communities in decision-
making.
3.2.5 Union and federation
The way in which government authority is distributed among levels of government
may determine the form of a state. This is well illustrated by the differences between
a union and a federation.
________________________
85 See the comprehensive studies by Cloete GS Etnisiteit en Groepsverteenwoordiging in die Staat-

kunde: ’n Vergelykende Studie (1981 thesis Stell); De Villiers B Die Staatsregtelike Beskerming van Ou-
tonome Besluitneming van Minderheidsgroepe (1989 thesis RAU).
86 As the latter three states no longer function on this basis, they are not regarded as good
examples, but the Belgian system is still based on such a division (De Villiers B Groepe: Meulsteen
of Bousteen? (1990) 123 ff).
87 See in particular Senelle R De Staatshervorming in België (1985). A similar division of levels of
government, albeit on a racial basis, also existed in terms of the 1983 Constitution in the form
of the own and general affairs dispensation.
88 See ch 16 para 3. See in more particulars Strydom HA “South African constitutionalism
between unity and diversity: lessons from the new Europe” 1997 SA Public Law 373; Venter F
“The protection of cultural, linguistic and religious rights: the framework provided by the
Constitution of the Republic of South Africa, 1996” 1998 SA Public Law 438; Barrie GN “Ub-
untu ungamntu ngabanye abantu: the recognition of minority rights in the South African con-
stitution” 2000 TSAR 271; Strydom H “Rehabilitering van die reg op selfbeskikking” 2000 TSAR
346; Malherbe R “Some thoughts on unity, diversity and human dignity in the new South Af-
rica” 2007 TSAR 127–132.
89 S 31. See Strydom HA “Minority rights protection: implementing international standards” 1998
SAJHR 373, who points out that s 31 corresponds to a 27 of the International Covenant on Civil
and Political Rights.
90 S 235.
91 Ss 211 and 212. See ch 11 par 3.
92 S 185(1)(c).
93 Ss 185 and 186. See Act 19 of 2002.
In a union or unitary state, all other government bodies are subject to the authority
exercised by the national government bodies.
In a union the distribution of authority to other levels does not restrict the authority
of the national government to exercise the delegated authority itself or to withdraw
the authority. The national government remains the highest authority in the state
94
despite the fact that government authority is also exercised at other levels. This
does not mean that all unions are centralised states. The highly centralised France is
a union, but so are the Netherlands, Belgium, Spain, and Italy. Each has strongly
decentralised provincial and regional governments.
In a federation there is a real distribution of authority between the federal govern-
ment and the constituent states or provinces in respect of the functional areas
95
allocated to them in the constitution.
Federations often come into being when a number of independent states agree to
form a new state, while retaining a certain measure of the authority each possessed
before. Examples are Switzerland and the United States of America. However, it is
also possible for a union to decide to become a federation. Examples are Germany
and Nigeria. Usually, the purpose is to acknowledge historical, geographical, ethnic
and other differences and considerations, or to decentralise government authority.
Normally, federal government bodies may not exercise any authority over matters
under the jurisdiction of the states or provinces and vice versa. The federal constitu-
96
tion contains the particulars of the distribution of government authority and the
97
power is vested in the courts (in some cases a special constitutional court) to in-
validate laws and other actions by the federal and state governments which are in
98
conflict with these provisions.
The extent of the powers of the federal government and of the states differs from
one federation to another. Federal systems are also never static: larger or smaller
shifts towards either more autonomy for the states or more powers for the federal
99
government occur continually.
Usually, each state of a federation has its own constitution providing for the com-
100
position, powers and functions of the government bodies of the state. However,
________________________
94 See, eg, Strong CF Modern Political Constitutions (1966) 63 ff and SA Law Commission Report on
Constitutional Models (1991) 545 ff.
95 Hogg PW Constitutional Law of Canada (1992) 372. See in general on federations, Elazar DJ
Exploring Federalism (1987); and “Form of state: federal, unitary, or . . .” in De Villiers B (ed)
Birth of a Constitution (1994) 29. See also Griffiths A (ed) Handbook of Federal Countries (2002);
Kincaid J and Tarr GA (eds) I Constitutional Origins, Structures and Change in Federal Countries: A
Global Dialogue on Federalism (2005).
96 For an overview of the methods that may be used in the Constitution for the distribution of
government authority between the federal government and the states or provinces, see Rau-
tenbach IM and Malherbe EFJ Constitutional Law (2009) 96–97.
97 Eg in Germany (s 93 of the German Constitution).
98 See eg Watts R “Is the new constitution federal or unitary?” in De Villiers B (ed) Birth of a
Constitution (1994) 75 ff, in particular 76–78.
99 See in this regard the study by Bothe M Die Kompetenzstruktur des modernen Bundesstaates in
Rechtsvergleichender Sicht (1977). See also Rienow R Introduction to Government (1964) 221 ff;
Watts R “Is the new constitution federal or unitary?” in De Villiers B (ed) Birth of a Constitu-
tion (1994) 78.
100 Watts R “Provinces, states, Länder, and cantons: content and variations among subnational
constitutions of the world” in Konrad Adenauer Stiftung Seminar Report: Subnational Constitu-
tional Governance (1999) 11 ff. On the USA, see Duchacek “State constitutional law in com-
parative perspective” 1998 Annals of the American Academy of Political and Social Science 128;
these constitutions may never contain provisions in conflict with the federal consti-
tution. The states also have their own capitals and symbols.
4 State institutions supporting democracy

Under the heading “State institutions supporting democracy”, chapter 9 of the
Constitution deals with a number of institutions. They are the Auditor General, the
Electoral Commission, the Public Protector, the Human Rights Commission, the
Commission for Gender Equality and the Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities and the
Independent Broadcasting Authority. These institutions do not constitute a fourth
branch of government. They are independent.101 Other organs of state must assist
and protect them, no person or organ of state may interfere with their functioning,
and they are accountable to and report at least once a year to the National
102
Assembly. They are created by, or in terms of, the Constitution and are organs of
103
state, but they do not form part of the legislative, executive or judicial branches of
government, nor are they part of the national, provincial or local spheres of
104
government.
The Public Protector, the Auditor General and members of the commissions must be
105
South African citizens and fit and proper persons to hold their offices. The
Constitution provides that the President, on the recommendation of the National
Assembly appoints the Public Protector, the Auditor General, and members of the
Human Rights Commission, the Commission for Gender Equality and the Electoral
Commission. At least 60 per cent of the members of the National Assembly must
approve the Assembly’s recommendations for the appointment of the Public Protector
and Auditor General, and at least the majority of its members must approve its
106
recommendations for the three commissions. The President must remove these
officials from office on the ground of misconduct, incapacity or incompetence after the
National Assembly has resolved to do so with a 60 per cent majority of its members in
the case of the Public Protector and the Auditor General, and by at least the majority of
107
its members in the case of a member of a commission.
The Auditor General must audit and report on the accounts, financial statements and
financial management of national, provincial and municipal administrations and of
any other institution identified to be audited in national or provincial legislation.
The Auditor General may do the same, as provided for in legislation, in respect of
any other institution funded by national, provicial and municipal funds, or that is
authorised under legislation to receive money for a publc purpose. The Auditor
General reports publicly the outcome of the audits to legislatures with a direct
________________________
Kincaid J “State constitutions in the federal system” 1998 Annals of the American Academy of
Political and Social Science 22.
101 New National Party v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) paras
74–79.
102 S 181(2)–(5).
103 Independent Electoral Commission v Langeberg Municipality 2001 9 BCLR 883 (CC), 2001 3 SA 925
(CC) para 22.
104 Independent Electoral Commission v Langeberg Municipality 2001 9 BCLR 883 (CC), 2001 3 SA 925
(CC) para 27; New National Party v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA
191 (CC) para 100.
105 See ch 9, para 8.2.
106 See ch 9, para 8.2.
107 S 194.
interest in the audits or any other authority identified in national legislation. The
108
reports must be made public.
The Electorial Commission manages elections of national, provincial and municipal
legislatures in accordance with national legislation, ensures that those elections are
109
free and fair, and declares the result of those elections. This commission is an
indispensable instrument for the functioning of the South African democracy.
The Public Protector has the power, as regulated by national legislation,110 to investi-
gate any conduct that is alleged or suspected to be improper in state affairs or in the
public administration in any sphere of government (excluding court decisions), to
111
report on the conduct and to take appropriate remedial action. Before 2016 there
had been uncertainty on whether the appropriate remedial action proposed by the
Public Protector in her reports were binding. In 2014, the Public Protector held that
certain upgrades at the private home of the President were not security related and
that the President and his family had to pay back the money spent on these up-
grades. The National Assembly, after considering the reports of two ad hoc Assembly
committees, absolved the President from the duty to pay back the money. The
Constitutional Court held that unless the Public Protector’s recommendations and
remedial action are set aside on review by a court of law, the recommencations and
remedial action are binding. The excutive and the National Assembly may not on its
112
own decide not to follow them.
The Human Rights Commission must promote respect for human rights and the
protection of human rights, and must monitor and assess the observance of human
rights in South Africa.113 The Commission for Gender Equality must promote respect for
gender equality and the protection, development and attainment of gender equal-
114
ity. The objects of the Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities are described in section 185 of the
Constitution (primarily to protect and promote South Africa’s cultural, religious and
linguistic diversity), but its powers, composition and functioning is regulated in
115
national legislation.
The Constitution does not establish and regulate an Independent Broadcasting Au-
thority. The Constitution provides that national legislation must be passed to regulate
broadcasting in the public interests, and to ensure fairness and diversity of views
broadly representing the South African society and that was subsequently done in
acts of parliament.116
________________________
108 S 188.
109 S 190(1).
110 The Public Protector Act 23 of 1994.
111 S 182; the Electoral Act 73 of 1998; Local Government; Electoral Act 27 of 2000.
112 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly 2016 5 BCLR 618 (CC), 2016 3 SA 580 (CC) par [61). See also In South Afri-
can Broadcasting Corporation Soc Ltd and Others v Democratic Alliance [2015] 4 All SA 719 (SCA),
2016 2 SA 522 (SCA); For a discussion of these cases see Venter R “The executive, the public
protector and the legislature: ‘The lion, the witch and the wardrobe’?” 2017 TSAR 176-189.
See also 2018 5 BCLR 609 (GP), 2018 2 SA 100 (GP) paras 150, 152–154 in respect of the
public protector’s State Capture Report of 2017.
113 S 184.
114 S 187.
115 The Commission for the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities Act 19 of 2002.
116 S 192. The relevant legislation includes the Independent Broadcasting Authority Act 153 of
1993, the Broadcasting Act 4 of 1999 and the Independent Communications Authority of
5 Independent exercise of government authority

The independence of a state means that no authority from outside the territory of the
state may exercise government authority in the territory, except with the permission of
the state.
As the relations among states are governed by international law, it is sometimes
maintained that independence is an essential element of a state for the purposes of
117
international law, but not necessarily for the purposes of constitutional law. As
defined above, independence as a characteristic of a state for constitutional law
purposes means that government bodies exist in the particular territory that by
themselves and autonomously uphold the existence and unity of the state internally
118
and externally.
A state may relinquish the exercise of some government authority within its terri-
tory by concluding an international treaty in which such authority is ceded to an-
other state or to an international organisation.119 However, as long as a state is in a
position to legally revoke such relinquishment, its independence is not affected by
the arrangement.
States or provinces of a federation are not fully-fledged independent states. Al-
though they have most of the characteristics of a state, they do not exercise govern-
ment authority in respect of certain functional areas within their territory because
the federal government (an institution from outside their territory) exercises such
authority. Notwithstanding the fact that federal constitutions usually provide for the
participation of the states in the amendment of the federal constitution, the states
normally have no right in terms of the federal constitution to secede from the
federation unilaterally, and their consent is not required for the exercise of federal
powers in their territories. A constituent state of a federation is part of a larger entity
that satisfies all the requirements for a state (the federal state) and for that reason a
120
state of a federation is not a state in terms of the normal constitutional definition.
In view of the aforegoing, the following statement by the Constitutional Court is obvi-
ously not correct: “Unlike their counterparts in the United States of America, the prov-
121
inces in South Africa are not sovereign states.” This statement was made in the
course of the Court’s argument that the position of the provinces cannot be compared
to that of the American federal states, because the provinces have been created by the
Constitution, whereas the American states were independent states which came to-
gether voluntarily. Neither the states of the USA nor the provinces are independent,
irrespective of the different ways in which they were created, and the states of the USA
cannot be described as “sovereign states”.
________________________
South Africa Act 13 of 2000.

118 Stein E Staatsrecht (1988) 8.
119 See ch 5 para 4.
120 This explanation also applied to the former South African self-governing territories, which
could not on account of their locus standi to sue the national government be regarded as
states – see Government of the RSA v Government of KwaZulu 1983 1 SA 164 (A).
121 In re: The National Education Policy Bill No 83 of 1995 1996 4 BCLR 518 (CC), 1996 3 SA 289
(CC) para 23. The statement was quoted with approval by the Court in In re: Certification of the
Constitution of the Province of KwaZulu-Natal, 1996 1996 11 BCLR 1419 (CC), 1996 4 SA 1098
(CC) para 14. The status of the provinces is discussed in ch 11 para 2.5.
Chapter 7
Legal system, legal personality,
symbols and official languages
1 Legal system of the state 73

2 The state as a juristic person 77
3 Symbols of the state 80
4 Official languages 81
1 Legal system of the state

1.1 Every state has a peculiar legal system comprising the legal rules that
apply in that state.
This feature of a state follows from the fact that the people of a state by custom, or
organs of state in exercising government authority create legal rules that apply in
the state.
The existence of a legal system as an element of a state does not depend upon the
quality of the legal rules. Even a military or civil dictatorship has a legal system,
irrespective of whether its content is good or bad.
Every state has a peculiar legal system because every legal rule and the legal system
as a whole reflect the social, economic, religious and political views of the people
and institutions that created it. On this basis, different kinds of legal systems can be
distinguished, for example, Western-democratic or social-democratic, social-com-
munistic, Islamic, or Christian systems.
Although every state has a legal system which generally applies in the state, different
subsystems may exist in a particular state.
Different levels of government in a state implies that at each level of government,
1
government organs exist to regulate certain matters by law for that particular level.
The existence and extent of subsystems are regulated in the national constitution. In
some federations, separate systems exist in respect of important branches of the law
such as private law, commercial law, criminal law and civil procedure. The existence
of three spheres of government in South Africa brings about that, apart from the
national legal system, different legal rules in respect of particular matters may apply
2
in the provinces and local government areas.
The South African Constitution also recognises the existence of systems that are not
linked to any particular level of government. The courts must apply customary (indig-
enous) law when that law is applicable, subject to the Constitution and legislation
________________________

2 The extent, to which these rules may deviate from the national system, is discussed in chs 11
and 12.
73
3
that specifically deals with customary law. Systems of personal and family law under
any tradition or adhered to by persons professing a particular religion may be for-
mally recognised by legislation to the extent that the rules of such a system are
4
consistent with the Constitution.
1.2 The constitution of a state has a decisive influence on the legal system
of the state.
This influence follows in the first place from the provisions of the constitution dealing
with the composition of organs of state, the distribution of powers and functions
among them, procedures for decision-making, and the publication of decisions. If,
for example, supreme legislative authority is vested in a single person who governs
by decree, the nature and quality of the legal rules made will, in all probability,
differ greatly from rules that are made by a representative parliament that acts in
accordance with extensive rules of procedure.
Constitutions often contain provisions that determine the quality of the content of
legal rules. Although the composition and functioning of government bodies are
indeed of considerable importance to the quality of the content of legal rules (in
other words whether they are “good” or “bad”), the majority of modern constitu-
tions also contain directives in respect of the content of decisions of government
bodies when they enact, amend or repeal legal rules, and when they execute and
apply them. These are contained in bills of rights. An entrenched bill of rights
comprises provisions of a constitution that define particular rights of the individual
5
and that set limits for the restriction of these rights. The South African Constitution
contains a Bill of Rights that can be enforced by the courts. The content of all existing
6
and future legal rules must comply with the provisions of the Bill of Rights. To a
greater or lesser extent, the bill of rights influences virtually all branches of the law.
The coming into operation of an entrenched bill of rights has probably been the most
far-reaching step in respect of general law reform ever undertaken in South Africa.
1.3 The nature of the legal system of a state can often be inferred from the
preamble to the constitution.
The preamble to a constitution differs from the preambles to other statutes.
Like the preamble of any other statute, the preamble to a constitution precedes the
text and, strictly speaking, is not regarded as forming part of the provisions of the
constitution. The preambles to other statutes usually contain concise statements on
________________________
3 S 211(3). See in respect of the influence of the Interim Constitution and the Constitution on
customary law, Bennet TW Human Rights and African Customary Law (1996) and “The equality
clause and customary law” 1994 SAJHR 122; Currie I “Indigenous law” in Chaskalson M et al
(eds) Constitutional Law of South Africa (1998) para 36; Bekker JC “Indigenous law and human
rights” 1994 THRHR 440; Himonga C and Bosch C “The application of African customary law
under the Constitution of South Africa: problems solved or just beginning” 2000 SALJ 306. S
211(1) of the Constitution provides: “The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the Constitution.” In In re: Certification of
the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 194, the
Constitutional Court stated: “The fact that they are declared to be subject to the New Text
merely underlines the point that in a constitutional state, no-one exercises power or authority
outside of the constitution.” See also ch 11 para 3.
4 S 15(3).
5 Bills of rights are discussed in Part 2.
6 S 8(1).
Chapter 7 Legal system, legal personality, symbols and official languages 75
the content of those statutes. The preamble to a constitution is longer and formulated
in poetical language to make it clear that, unlike other statutes, the constitution forms
the constitutional basis of the state.
The content of preambles differs from constitution to constitution. It usually iden-
tifies those who drafted the constitution. It can also refer to the history of the constitu-
tion and the circumstances under which the constitution was adopted.7 Usually, it also
sets out basic values sustained by the community and spells out common aspirations
and goals for the future.8
The preamble to the South African Constitution reads:
“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as
the supreme law of the Republic so as to –
Heal the divisions of the past and establish a society based on democratic values, social
justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based
on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person;
Build a united and democratic South Africa able to take its rightful place as a sover-
eign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhaᒹutshedza Afurika. Hosi katekisa Afrika.”
Other provisions of the South African Constitution also refer to common values and
goals. In other constitutions, the content of section 1 of the South African Constitu-
tion would form part of the preamble. Section 1, which is specially entrenched,9 pro-
vides that the Republic of South Africa is one sovereign democratic state founded on
the following values:
(a) Human dignity, the achievement of equality and the advancement of human
rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
________________________
7 Badura P Staatsrecht (1986) 51. The preamble to the Namibian Constitution reads: “Whereas
we the people of Namibia have finally emerged victorious in our struggle against colonialism,
racism and apartheid; are determined to adopt a Constitution which expresses for ourselves
and our children our resolve to cherish and to protect the gains of our long struggle; . . .”
8 The preamble to the American Constitution reads: “We the People of the United States, in
Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide
for the common defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the United States of
America.”
9 S 74(1) and (2). See ch 8 para 2.5.7.7 on the effect of the special entrenchment.
(d) Universal adult suffrage, a national common voters roll, regular elections, and
a multi-party system of democratic government, to ensure accountability,
responsiveness and openness.
Other provisions of the Constitution also set out common values and goals. Some of
them overlap with each other and with statements in the preamble and in section 1.
For example. The Bill of Rights is a cornerstone of democracy in South Africa and affirms
10
the democratic values of human dignity, equality and freedom. The spirit of co-oper-
ative government must be practised in the interest of peace, national unity and the in-
divisibility of the Republic, the well-being of the people and effective, transparent,
11
accountable and coherent government for the Republic as a whole. The National
12
Assembly is elected to ensure government by the people. The President must pro-
13
mote the unity of the nation and that which will advance the Republic. Local gov-
ernment must secure democratic and accountable government and promote social
14
and economic development generally. Basic values and principles governing the pub-
15
lic administration and the security services are set out.
The preamble to a constitution can play a significant role in interpreting and apply-
ing the constitution.
It is generally accepted that the preamble to a constitution does not contain directly
enforceable rules of law.16 However, this does not mean that the preamble is without
any legal significance.
In respect of the preambles to ordinary statutes, the South African courts have tradi-
tionally held that the preambles may be used only as an aid to the interpretation of
vague and ambiguous provisions and to limit the meaning of general concepts. In Law Union
17
and Rock Insurance Co Ltd v Carmichael’s Executor it was stated: “A preamble has been
described by an old English Judge as ‘a key to open the minds of the makers of the
Act and the mischief which they intended to redress’. But the key cannot be used if
the meaning of the enacting clauses is clear and plain. In cases however where the
wording is ambiguous, and in cases where the Court is satisfied that the Legislature
must have intended to limit in some way the wide language used, then it is proper to
have recourse to the preamble.”18
________________________
10 S 7(1).
11 S 41(1)(a), (b) and (c).
12 S 42(3).
13 S 83(c).
14 S 152(1).
15 Ss 195(1) and 198.
16 Basson DA and Viljoen HP South African Constitutional Law (1988) 230; Boulle L, Harris B and
Hoexter C Constitutional and Administrative Law (1989) 58; Carpenter G Introduction to Constitu-
tional Law (1987) 219. In exceptional circumstances, a binding constitutional duty can indeed
be inferred from the preamble. The preamble to the Constitution of the Federal Republic of
Germany of 1949 provided that the German people were called upon to realise the unity and
freedom of Germany. According to the German Federal Constitutional Court, this created a
constitutional duty for all government bodies to pursue the reunification of Germany, and to
refrain from anything which might legally obstruct its realisation. BVerfGE 5, 85/127 ff. After
the reunification of Germany, this provision in the preamble was amended by adding the
names of the new states which previously had been part of East Germany.
17 1917 AD 593 597.
18 See also Colonial Treasurer v Rand Water Board 1907 TS 479 482; S v Kola 1966 4 SA 322 (A)
326G; S v Davidson 1988 3 SA 252 (ZS) 254E. This approach is the same as the approach in At-
torney-General v HRH Prince Ernest Augustus of Hanover (1957) 1 All ER 49 (HL) 57–58: “The
preamble is not, however, of the same weight as an aid in construction of a section of the Act
as are other relevant enacting words to be found elsewhere in the Act, or even in related Acts
In the case of a preamble to a constitution, this limited importance traditionally

attached to the preambles of ordinary statutes should not be followed.19 The signifi-
cance of the preamble to a constitution for the interpretation and application of the
constitution is more far-reaching.
• The preamble to a constitution contains considerably more information on the
history of the constitution and the purposes for enacting it than preambles to
ordinary statutes. A constitutional preamble is therefore an important source
whenever a provision of the constitution is interpreted by applying the principles
that the history and origin of the provision, the constitution as a whole, and the
20
purpose of the provision must be taken into account.
21
• In S v Mhlungu it was stated: “The preamble in particular should not be dis-
missed as a mere aspirational and throat clearing exercise of little interpretive
value. It connects up, reinforces and underlies all of the text that follows. It helps
to establish the basic design of the Constitution and indicates its fundamental
purposes.” It should be accepted as a starting point that the provisions of the
Constitution give effect to the values and goals set out in the preamble. This ap-
proach is supported by the overlap, referred to above, between the values and
goals spelled out in the preamble and those contained in provisions of the Con-
stitution.22 In principle, provisions of the Constitution must therefore always be
interpreted and applied within the context of the preamble and not only in the
case of vague and ambiguous concepts.23 In a particular case, this could mean
that the literal, clear meaning of a constitutional provision will not be followed,
because it must be interpreted and applied as qualified by the values and goals set
out in the preamble and in other provisions of the Constitution.
2 The state as a juristic person

2.1 A legal or juristic person consists of a group of natural persons
recognised by the law as a separate entity.
The terms “juristic person” and “legal personality” are abstract. They do not describe
something which in actual fact exists. They are legal terms which have been developed
to better regulate by law certain relationships and activities in the community.
________________________
. . . If they admit of only one construction, that construction will receive effect, even if it is inconsistent with
the preamble, but, if the enacting words are capable of either of the constructions offered by the
parties, the construction which fits the preamble may be preferred.”
19 As has been done by Basson DA and Viljoen HP South African Constitutional Law (1988) 230;
Carpenter G Introduction to Constitutional Law (1987) 219 and Basson DA South Africa’s Interim
Constitution: Text and Notes (1995) 1.
20 See ch 3 para 2.3.2.
21 1995 7 BCLR 793 (CC), 1995 3 SA 867 (CC) para 112.
22 This overlap greatly refutes arguments that the preamble should be accorded less legal signifi-
cance because it does not formally form part of the provisions of the Constitution.
23 See Kauesa v Minister of Home Affairs 1995 1 SA 51 (Nm) 81; Ex parte Attorney General, Namibia: In
re Corporal Punishment by Organs of State 1991 3 SA 76 (Nm); Baloro v University of Bophuthatswana
1995 8 BCLR 1018 (B), 1995 4 SA 197 (B); Qozeleni v Minister of Law and Order 1994 1 BCLR 75
(E), 1994 3 SA 625 (E) 633.
2.2 In jurisprudence and legal practice it is, for various reasons, proper and
useful to regard the state as a juristic person.
The “legal personality of the state” is not a “natural” feature of the state (such as the
territory and the people, or even the authority exercised by organs of the state).
From the point of view of other sciences such as sociology or political science, it is
therefore not essential to regard the state as a juristic person.
Baxter is of the opinion that it is unnecessary to use the terms “state” and “legal per-
24
sonality of the state”. He regards it as meaningful only because it is sometimes used in
South African laws and court decisions. According to him, English law manages well
enough without it and South African law cannot benefit from the Dutch, French and
German use of the terms. In English law, all authority is exercised in the name of the
monarch in her or his capacity as holder of the office of head of state (the so-called
25
corporation sole). English law therefore also employs an abstraction. If, however, a state
does not have a ceremonial head of state, the English construction cannot be used,
and to regard the “state” as a “legal person” is then a logical way to reach the same re-
sult.
For the following reasons it is proper and useful to regard the state as a juristic
person:
(a) Like any other juristic person, the state is comprised of people, namely the
people in the territory of the state. In this regard, the emphasis is especially on the
citizens of the state as the permanent inhabitants. Like the members of any other
juristic person, the citizens of a state are competent (for example, through the
exercise of the right to vote or to hold public office) to participate directly or indi-
rectly in the exercise of government authority, the composition and functioning of
government bodies, and the control of such bodies.
(b) Like any other juristic person, the state has certain formal characteristics that
distinguish it from other states; for example, the name of the state and official
symbols such as a flag, national anthem, coat of arms, and sometimes even certain
26
ceremonial offices.
(c) As in the case of other juristic persons, legal proceedings may be instituted by or
27
against the state.
(d) As a juristic person cannot act and take decisions by itself, natural persons are
appointed to act on behalf of the juristic person. They are called the organs of the
juristic person. Examples of such organs of juristic persons are the general meetings
of shareholders and the boards of directors of companies. The organs that act on
behalf of the state are called government bodies and usually they are classified into
28
legislative, executive and judicial bodies.
(e) The assets of a juristic person and the assets of the natural persons comprising
the juristic person are separated from each other. In other words, the interests of a
juristic person as such, and the interests of the persons comprising the juristic
person, do not coincide in all respects. A conflict of interest could occur between
________________________
24 Baxter L “‘The State’ and other basic terms in public law” 1982 SALJ 212 ff.
25 Wiechers M VerLoren van Themaat Staatsreg (1981) 6; Baxter L “‘The State’ and other basic
terms in public law” 1982 SALJ 220.
26 See para 3 below.
27 See paras 2.3.3 and 2.3.4 below.
28 Government bodies and the distribution of government authority among them are discussed in
ch 6.
the juristic person and the individuals who form that juristic person. The relation-
ships which exist between a juristic person and its members are regulated by law.
This is also true of the state and its government bodies on the one hand, and the
individuals comprising the state on the other. The relationship between the state
and the individual is the concern of public law in particular.
(f) Like any other juristic person, the state is bound by law. The fact that the state is
regarded as a juristic person, therefore, has one extremely important implication:
The state as a juristic person is, in principle, subject to the law. From a constitutional point
of view, the outstanding characteristic of the state is that no organ of the state is
above the law. It is indeed true that in a state with a sovereign parliament, parlia-
ment enacts the legal rules which bind the state. However, if the proposition that the
state is a juristic person subject to the law is abandoned, the justification for consti-
tutional law as a legal discipline falls away and it becomes a mere study of the exercise
of physical power.
2.3 In South Africa, the state is regarded as a juristic person.

The following statement by Rose-Innes is indicative of the view that the state may be
regarded as a juristic person:29 “The State . . . is regarded in law as a legal persona
with a perpetual existence distinct from that of the individual persons or groups of
persons who are its citizens or who from time to time hold office . . .”30
In legislation, the term “state” is often used in the sense of a juristic person. The
best and foremost example is section 1 of the State Liability Act 20 of 1957 which
provides: “Any claim against the State which would, if that claim had arisen against a
person, be the ground of an action in any competent court, shall be cognizable by
such court, whether the claim arises out of any contract lawfully entered into on
behalf of the State or out of any wrong committed by any servant of the State acting
in his capacity and within the scope of his authority as such servant.”
In South African legal practice, criminal prosecutions are instituted in the name
of the state. That is evident from the way in which criminal cases are cited: S v XYZ.
Usually in civil cases, actions are not instituted by or against the state as such, but
31
by or against specific ministers, the President or other organs of the state. It is also
customary to institute an action by or against the “Government of the Republic of
South Africa”. In Regering van die Republiek van Suid-Afrika v SANTAM Versekerings-
32
maatskappy the government sued an insurance company for damages. The re-
spondent argued that the government was not a juristic person and consequently
did not have locus standi in iudicio. The court found that the government was indeed
33
a juristic person and stated, with reference to the 1961 Constitution: “It is clear . . .
________________________
29 Rose Innes LA Judicial Review of Administrative Tribunals in South Africa (1963) 228.
30 Wiechers M Administrative Law (1985) 66 states: “The Republic, viz the state, is the body
corporate and the ministers, administrators, state president and other office bearers are the or-
gans of that body corporate.” See also Wiechers M VerLoren van Themaat Staatsreg (1981) 7.
31 In Kilian v Gauteng Provincial Legislature 1999 2 BCLR 225 (T) 233H–I it was stated: “As a matter
of constitutional law and practice it has always been acceptable to cite the government as the
executive arm of the State, which for the purpose of incurring liability, or being sued, has been
regarded as a juristic person in law. It has also always been acceptable to cite a nominal de-
fendant eg the Minister of a department to bring the real defendant before court. As such the
question whether the nominal defendant eo nomine has incurred (or can incur) the relevant li-
ability or can be brought before court as defendant, is irrelevant.”
32 1964 1 SA 546 (W).
33 549C–D.
that the Republic is a juristic person as was its predecessor, the Union of South
Africa. The executive Government is vested in the State President acting on the
advice of the Executive Council . . . I find nothing in any of the provisions of the
statute to justify the view that this Government is not to be considered a legal perso-
34
na . . .”
3 Symbols of the state

3.1 Every state has certain symbols.
The symbols of a state serve a more comprehensive purpose than the mere identi-
fication of the state. It is said that the symbols of a state are expressions of
nationhood, that they express the unique nature of the community, that they em-
body the dignity of the state, and that they are unifying factors uniting the popu-
35
lation into a national community. In addition, it often occurs that subunits of the
state at regional and local levels, such as provinces, states of a federation, and towns
and cities, also use symbols.
3.2 The symbols of a state may take various forms often provided for in
legislation.
Section 4 of the Constitution provides that the national anthem of the Republic is
determined by the President by proclamation.36 The arrangement concerning the
anthems in terms of the Interim Constitution will prevail until a proclamation in
37
terms of section 4 is published. Section 5 provides that the national flag is black,
38
gold, green, white, chilli red and blue, as described and sketched in schedule 1.
39
The Constitution does not refer to a coat of arms or a seal of the Republic.
In Britain, the monarch is regarded as a symbol of the state. The notion was
continued in South Africa with the introduction in 1961 of a ceremonial office of
president which, as a symbol of the state, was supposed to be above politics.
________________________
34 Wiechers M “Die regering van die Republiek ’n regspersoon?” 1964 THRHR 161–163 criticises
this judgment because, according to him, the government is not a “juristic entity” which can
act as a juristic person – the President or a minister should rather act as an organ of the state.
However, the judgment did not amount to a negation of the legal personality of the state. It is
rather a case in which the state and the government were regarded as synonyms for the pur-
poses of litigation.
35 Stern K I Das Staatsrecht der Bundesrepublik Deutschland (1977) 221.
36 According to the Interim Constitution, the President would determine the flag and anthem by
proclamation in the Government Gazette (s 2). This had been done before the commencement of
the Interim Constitution (s 248 and Proc 70 of 1994 (Government Gazette 15663 of 20 April 1994)).
At the commencement of the Interim Constitution, the proclamation became part of the consti-
tutional text (s 248(2)).
37 Item 2(1)(a) schedule 6 of the Constitution. In 1997, a shortened version of the national
anthem was proclaimed – Proc 68 of 1997 (Government Gazette 18341 of 10 October 1997).
38 In terms of the 1983 Constitution, it was a criminal offence to maliciously destroy, damage or
hold the flag in contempt (s 92 Act 110 of 1983). This provision was not re-enacted in the In-
terim Constitution. Similar protection can be found in other states, for example in Germany,
where the national anthem and coat of arms are protected.
39 Objections against this omission to the effect that it affects the supremacy of the Constitution
were rejected in In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC),
1996 4 SA 744 (CC) para 208. From a historical point of view, seals have had nothing to do
with the supremacy of the Constitution. See Wiechers M VerLoren van Themaat Staatsreg (1981)
96–99 on the unique role of seals in the development of ministerial responsibility in British
constitutional law.
Accordingly, in section 13 of the 1961 Constitution, the violation of the honour and
dignity of the State President was made an offence and section 14 provided that the
remuneration of the State President could not be reduced during the term of of-
40
fice. These provisions have not been included in subsequent Constitutions, because
the President is now also the head of government. The prime minister as the head of
government has never enjoyed such protection in South Africa or Britain. For the
protection of his or her good name and character, the President is therefore de-
pendent upon private law actions like any other citizen.
Decorations and honours and certain national holidays may also be regarded as state
symbols. Apart from the power to confer honours afforded the President by the
41
Constitution, other matters in this regard are regulated in other laws.
4 Official languages
South Africa has eleven official languages and the Constitution determines their use
by government bodies and how all languages of the Republic must be developed.42
South Africa is a multilingual country and the language provisions of the Con-
43
stitution reflect this reality. The official languages are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.44 It
is uncertain what exactly are the practical consequences of official status,45 but at
least it indicates which languages must be used for the purposes of official com-
46
munication. These are therefore the languages in which the government must
make and promulgate laws, in which decisions and other government actions must
be made known, in which government officials and agencies must communicate
with one another, in which government information must be kept, and in which the
public may communicate with the government. All official languages enjoy parity of
esteem and must be treated equitably. Parity of esteem does not mean complete
47
equality, but it also does not mean that the expression has little legal significance.
It means, at the least, that all official languages must receive recognition in
government activities, that some may not dominate at the expense of others, and
48
that some will not be neglected. In this regard, the duty of the state follows inter alia
________________________
40 A resolution by the legislature to reduce the remuneration of a member of the executive

is one of the ways in which the legislature exercises control over the executive – see ch 9
para 8.2.
41 S 84(2)(k).
42 Concerning the official language provisions of the Interim Constitution, see Currie I “Official
languages” in Chaskalson M et al (eds) Constitutional Law of South Africa (1998) para 37.
43 See constitutional principle XI: “The diversity of language and culture shall be acknowledged
and protected, and conditions for their promotion shall be encouraged.”
44 S 6(1).
45 See Hogg PW Constitutional Law of Canada (1999) 53.6(a); Currie I “Official languages” in
Chaskalson M et al (eds) Constitutional Law of South Africa (1998) para 37.3.
46 See Malherbe EFJ “The language provisions of the 1993 Constitution as applied in Gauteng”
1995 TSAR 353 357, who refers inter alia to s 89(3)(a)(ii) of the Constitution of 1983 (Act 110
of 1983), in which it was expressly mentioned that the official languages must be used for offi-
cial purposes. See also Du Plessis LT and Pretorius JL “The structure of the official language
clause: a framework for its implementation” 2000 SA Public Law 505 509–510.
47 Currie I “Official languages” in Chaskalson M et al (eds) Constitutional Law of South Africa
(1998) para 37.5.
(1998) para 37.6 states: “The parity of esteem requirement insists that, considerations of
from its duty to respect people’s human dignity of which language is an inherent
49
part.
Prior to the promulgation of the Use of Official Languages Act 12 of 2012, the
Constitution regulated the use of official languages by the national, provincial and
local government. The Use of Official Languages Act, however, is applicable and
regulates the use of official languages by “national departments, national public
50
entities and national public enterprises”, while provincial and local governments
are still subject to the constitutional provisions as well as provincial legislation that
51
may have been adopted by the individual provinces. The national government, as
well as national public entities and enterprises, are now obliged to use at least three
52
official languages for government purposes, instead of the minimum of two that
was prescribed by the Constitution. When choosing the three languages, the organs
need to take “practical and positive measures to elevate the status and advance the
53
use of indigenous languages”. The national organs and institutions must also
establish “language units” to monitor and report on their use of official languages.54
The Constitution deals with the practical implications of eleven official languages in
a flexible way and provides that the national and provincial governments may use any
particular official languages as languages for government purposes, but that provin-
55
cial governments must use at least two official languages. A few remarks may be
made about this provision:
• Government purposes refer to all activities of the government that require com-
56
munication between the government, officials and the public. It thus refers at
least to laws, bills, minutes and other official documents of legislatures, notices
and official press statements. It also refers to the administrative components of
the governments in question which meet with the public on a daily basis. In addi-
tion, it can be accepted that it includes internal communication, in other words,
within departments and other government bodies.
• The provision refers to the national and provincial governments and not to
57
organs of state in general. This does not mean that such other organs of state,
that exercise public powers and perform public functions in terms of legislation
and are subject to the Constitution in all respects, may disregard the language
provisions. They must also in their choice and use of languages respect the equal-
ity of esteem of the official languages and treat the languages equitably. The only
________________________
practicality aside, a sincere attempt must be made to ensure that particular languages do not
dominate while others are neglected.”
49 S v Pienaar 2000 7 BCLR 800 (NC) paras 9–11.
50 S 3 of the Use of Official Languages Act.
51 Following the promulgation of the Use of Official Languages Act, several provinces have
adopted similar language legislation: Mpumalanga Provincial Languages Act 3 of 2014; North
West Provincial Languages Act 1 of 2015; Gauteng Provincial Languages Act 3 of 2016; Use of
Free State Official Languages Act 1 of 2017; Eastern Cape Use of Official Languages Act 8 of
2016, and KwaZulu-Natal and the Northern Cape have yet to adopt the KwaZulu-Natal Use of
Official Languages Bill of 2017 and the Northern Cape Use of Official Languages Bill of 2013,
respectively. The Western Cape has existing language legislation which they continue to im-
plement.
52 S 4(2)(b) of the Act.
53 S 4(3) of the Act.
54 Ss 7–8 of the Act.
55 S 6(3) read with the Use of Official Languages Act.
(1998) para 37.8.
57 See on organs of state, s 239 and ch 6 para 1 and below on local governments.
58
difference is that they are not compelled to use more than one language. The
59
reference to “governments” includes the courts.
• The only purpose of the provision is to facilitate the task of the relevant govern-
ments and they may not in making a choice violate the equality of esteem of cer-
tain official languages or treat certain languages inequitably. In order, therefore,
to prevent the violation of the equality of esteem of any official language and for
the purposes of equity, the relevant governments must, in making a choice, take
into account usage, practicality, expense, regional circumstances, and the bal-
ance of the needs and preferences of the population as a whole or in the respec-
tive provinces. These factors strengthen the flexibility of the arrangement and
allow, for example, for regional differences. They must nevertheless be consid-
ered together, and a choice must be made that is equitable in view of all relevant
circumstances.
• No government may use only one language. The choice by any national or
provincial government body of one so-called continuous anchor language, for
example, whereas the other official languages are used with the anchor language
on a rotation basis, does not seem to be in order. As a permanent arrangement it
is not fair to these other official languages and it cannot but violate their equality
of esteem vis-à-vis the anchor language. Moreover, where it applies to communi-
cation with the public, it has the result that the government communicates only
extremely sporadically with some language communities in their own languages.
The recognition of eleven official languages has an inclusive intent, but the no-
tion of an anchor language amounts to preference for a single official language,
and in practice has the opposite effect. The arrangement is particularly unac-
ceptable in the promulgation of laws. The public must take cognisance of the
rules of law that apply to them in a proper and meaningful way, but can do so on-
ly if the government introduces the laws to them in a language or languages that
60
they properly understand.
• The national and provincial governments, by legislation and other measures,
must regulate and monitor their use of the official languages.
Municipalities must take into account the language usage and preferences of their
residents.61 Unlike the national and provincial governments, they are therefore not
compelled to choose at least three and two official languages respectively, but they
must be able to demonstrate that in their choice or use of languages the equality of
esteem of certain official languages is not violated, that they treat languages
equitably, and that they take into account the language usage and preferences of
________________________
58 It could not be argued convincingly that they must use all eleven official languages.
59 S v Pienaar 2000 7 BCLR 800 (NC). Pleas on account of practical problems for one language of
record in the courts, viz English (see, eg, Mthethwa v De Bruin NO 1998 3 BCLR 336 (N); S v Ma-
tomela 1998 3 BCLR 339 (Ck)), are therefore inappropriate and unconstitutional. See also the
comments of Matela S “Language rights: a tale in three cases” 1999 SAJHR 386; Malan K “Oor die
hofnotuleringstaal in die lig van die Grondwet en na aanleiding van onlangse regspraak” 1998
THRHR 696; Cowling MG “The tower of Babel – language usage and the courts” 2007 SALJ 84–
111.
60 See Currie I “Official languages” in Chaskalson M et al (eds) Constitutional Law of South Africa
(1998) para 37.8. He argues in the same vein that the legislative process itself must be multi-
lingual to enable members of parliament to participate fully.
61 S 6(3)(b).
62
their residents. This requires a considered decision in which, among others,
63
demographic statistics should be taken into account.
The Use of Official Languages Act was promulgated after the decision in Lourens v
President van die Republiek van Suid-Afrika.64 In this case the High Court found that the
legislature failed in its duty to regulate and monitor the use of official languages by
means of legislative and other measures as required by section 6(4) of the Constitu-
tion. Consequently the legislature enacted the Use of Official Languages Act.
Whether or not the Act has adequately addressed the language issue, remains to be
seen. The translation of legislation and the use of languages at public universities,
for example, remain contested subjects which have not been addressed by the
national Act. The former has been addressed by the courts in the Lourens case re-
ferred to above, as well as two other cases initiated by the same applicant, Lourens v
65
Speaker of the National Assembly and Lourens v Speaker of the National Assembly of Parlia-
66
ment . None of these courts, however, were prepared to uphold the applicant’s
contention that parliament has a duty to translate legislation into all the official
languages. With regard to the use of official languages at public universities, the
issue was addressed by the courts in Afriforum and Another v Chairman of the Council of
the University of the Free State67, University of the Free State v Afriforum 68 and AfriForum v
69
University of the Free State. Both the Supreme Court of Appeal and the Constitutional
Court found that the University of the Free State’s new single medium language
policy was not contrary to the national language policy and that the University
therefore did not act unreasonably in replacing its previous double medium lan-
guage approach.
Due to the historical handicap of indigenous languages, the government must
take steps to elevate their status and advance their use.70 In addition, the Pan South
African Language Board71 must promote the development and use of the official
________________________
62 The decision in Louw v Transitional Local Council of Greater Germiston 1997 8 BCLR 1062 (W)
that the provision of the Interim Constitution on official languages did not apply to local gov-
ernments does therefore not apply to the position in terms of the 1996 Constitution. The deci-
sion of the city council, taken without thorough investigation, to use only one language in a
city in which there are four large language groups, will be hard to justify in terms of the 1996
Constitution. (The court was in any case wrong in finding that the Bill of Rights did not apply
to decisions of a municipality.)
63 See Currie I “Official languages” in Chaskalson M et al (eds) Constitutional Law of South Africa
(1998) para 37.12. See also Strydom HA and Pretorius JL “Language policy and planning –
how do local governments cope with multi-lingualism?” 1999 Journal for Juridical Science 24.
64 Lourens v President van die Republiek van Suid-Afrika 2013 1 SA 499 (GNP). For a discussion of the
case and the Use of Official Languages Act, see Venter R “Are some official languages more
equal than others? Reflections on constitutional duties toward official languages, the Use of
Official Languages Act and respecting diversity” 2015 TSAR 872–886.
65 Lourens v Speaker of the National Assembly 2015 1 SA 618 (EqC).
66 Lourens v Speaker of the National Assembly of Parliament [2016] 2 All SA 340 (SCA).
67 Afriforum v Chairman of the Council of the University of the Free State (A70/2016) [2016] ZAFSHC
130.
68 University of the Free State v Afriforum [2017] 2 All SA 808 (SCA), 2017 4 SA 283 (SCA).
69 AfriForum v University of the Free State 2018 4 BCLR 387 (CC), 2018 2 SA 185 (CC).
70 S 6(2). Afrikaans is an indigenous language, but it cannot be said that its use and status have
been historically diminished. All official languages must nevertheless be developed in terms of
s 6(5)(a)(i).
71 Pan South African Language Board Act 59 of 1995, as envisaged in s 3(10) of the Interim
Constitution. (In terms of item 20 of schedule 6 of the Constitution, the Board continues to
exist.) The Board must inter alia promote the equal use and enjoyment of all official languages,
extend the use and status of languages restricted to certain regions, promote multilingualism,
languages, the Khoi, Nama and San languages and sign language, and must promote
respect for various languages used by smaller language communities and for religious
72
purposes. These languages include German, Greek, Gujarati, Hindi, Portuguese,
Tamil, Telugu, Urdu, Arabic, Hebrew and Sanskrit.
The language provision must be considered together with the Bill of Rights. Sec-
tion 9(3) prohibits unfair discrimination inter alia on the ground of language. Sec-
73
tion 30 provides that everyone is entitled to use the language of their choice.
Section 29(2) provides that everyone has the right to education in the official lan-
74
guage of their choice, where reasonably practicable. Section 35(3)(k) provides that
every accused person has the right to be tried in a language that he or she under-
stands, or, if that is not practicable, to have the proceedings interpreted in that
75
language. All information that must be provided to arrested, detained and accused
persons in terms of the Bill of Rights must be provided in a language that the person
understands.76 These provisions qualify in some respects the powers that the national
and provincial governments have in terms of section 6 with regard to the use of the
official languages. While these governments may choose to use certain official
languages, they must take into account the fact that a member of the public may
choose to communicate with them in a particular official or other language, or to
receive education in a particular official language, and that an accused person has
the language rights as mentioned above. These provisions of the Bill of Rights give
further expression to the multilingual nature of the South African community, and
any limitation that a government imposes on these rights must be justified in terms
77
of the limitation provisions.
________________________
promote respect for other languages, and prevent the use of any language for the purposes of
exploitation, domination or division (s 3 of Act 59 of 1995).
72 S 6(5).
73 S 31 provides inter alia that everyone has the right, with other members of the relevant lan-
guage community, to use their language and form linguistic associations.
74 See, eg, Malherbe EFJ “Reflections on the background and contents of the education clause in
the South African Bill of Rights” 1997 TSAR 85; Kriel RR “Education” in Chaskalson M et al
(eds) Constitutional Law of South Africa (1998) para 38; Currie I “Culture, language and educa-
tion” in De Waal J, Currie I en Erasmus G The Bill of Rights Handbook 1998 (1998) 349; Davis D,
Cheadle H en Haysom N Fundamental Rights in the Constitution: Commentary and Cases (1997)
294. See also Malherbe R “ ’n Universiteit se taalbeleid as ’n uitdrukking van grondwetlik-
beskermde diversiteit” 2005 TSAR 708–727. S 29(2) regularly gives rise to court cases – see
Western Cape Minister of Education v Governing Body of Mikro Primary School 2005 10 BCLR 973
(SCA), Laerskool Middelburg v Departementshoof: Mpumalanga Departement van Onderwys 2003 4 SA
160 (T), Seodin Primary School v MEC Education, Northern Cape 2006 4 BCLR 542 (NC), High
School Ermelo v Head of Department 2008 1 All SA 139 (T).
75 See, eg, Mthethwa v De Bruin NO 1998 3 BCLR 336 (N); S v Matomela 1998 3 BCLR 339 (Ck)
and the reaction to them of Malan K “Oor die hofnotuleringstaal in die lig van die Grondwet en
na aanleiding van onlangse regspraak” 1998 THRHR 696.
76 S 35(4).
77 See ch 18.
Chapter 8
National legislative authority
1 Legislative authority and bodies 87

2 Parliament 88
3 Judicial control over legislative bodies 131
1 Legislative authority and bodies

Legislative authority is the power to enact, amend and repeal rules of law. At national
level various bodies may be involved in its exercise, for example, parliament, the
head of state, and the electorate.
Legislative authority is exercised at various levels of government.1 In modern states,
the exercise of legislative authority at the national level focuses increasingly on the
provision of statutory guidelines and norms with which subordinate legislation and
other rules of law must comply. Therefore, the exercise of legislative authority at
national level is of crucial importance. However, the government bodies involved,
parliament in particular, perform other functions as well, for example, to represent
the people in the government processes at national level, and to exercise control
2
over the executive authority.
Constitutions determine in whom the highest legislative authority at the national level
is vested.
Section 43 of the South African Constitution provides: “In the Republic, the legis-
3
lative authority of the national sphere of government is vested in Parliament . . .” In
terms of section 42(1), parliament consists of the National Assembly and the Na-
4
tional Council of Provinces.
Usually, at the national government level, more than one government body is in-
volved in the exercise of legislative authority. Some parliaments consist of more than
5
one house or chamber functioning separately and, usually, the head of state is also
6
nominally or substantively involved. In some cases, other government bodies, and even
the electorate, may be involved in the exercise of legislative authority. This happens,
7
for example, when the states of a federation ratify a constitutional amendment, and
________________________
1 See ch 6 with regard to government authority and chs 11 and 12 with regard to the provincial
and local governments.
2 See para 2.2.
3 For the first time, the exercise of legislative authority in the different spheres of government is
distinguished in this provision.
4 For an overview of similar provisions in previous South African Constitutions, see Rautenbach
IM and Malherbe EFJ Constitutional Law (2009) 115–116.
5 Inter-Parliamentary Union I Parliaments of the World (1986) 14.
6 In by far the majority of states, the approval of the head of state, with or without a veto, is
necessary for the adoption of legislation.
7 A V of the American Constitution.
87
when, as in Switzerland, the electorate approves a constitutional revision in a refer-
8
endum.
However, parliament is the primary role player in the exercise of legislative au-
thority at national level. This is mainly because parliament is the government body
that represents all the voters in the state. Another consideration is that, despite the
fact that the initiative for the content of legislation largely vests in the executive,
parliament is the arena in which the legislative function is performed visibly. Conse-
quently, the focus is on parliament. The involvement of other bodies and function-
aries forms part of the discussion and is not dealt with separately.
2 Parliament
2.1 Representative and responsible government 88
2.2 Functions 90
2.3 Composition 91
2.4 Powers 106
2.5 Functioning 107
2.1 Representative and responsible government

The British parliament developed out of the monarch’s need to obtain the consent
of the representatives of the people for decisions. From this, the principles of repre-
sentative and responsible government, which form the basis of any democratic system,
developed.
The word parliament can be traced back to the Latin word parliamentum, the French
9
parler and the English parley – to speak. In the thirteenth century, it became custom-
ary to refer to the meetings of the monarch and the noblemen and knights as “par-
10 11
liaments”. Official recognition of the term followed in the fourteenth century.
Parliament developed mainly out of the monarch’s need to obtain the consent of
the people for the imposition of taxes.12 This led to the gradual development of the
13
principle of representation; in other words, the principle that those who participate
in parliament must be representative of the people and be elected by them.14
________________________
8 S 140 of the Swiss Constitution.

9 Wilding N and Laundy P An Encyclopedia of Parliament (1972) 520.
10 Ilbert C Parliament: Its History, Constitution and Practice (1948) 1; Spufford P Origins of the English
Parliament (1967) 26–28; Pasquet D An Essay on the Origins of the House of Commons (1966) 3 ff.
11 Pollard AF The Evolution of Parliament (1964) 36 ff.
12 Plucknett TFT Taswell-Langmead’s English Constitutional History (1960) 129 ff; Stubbs W II The
Constitutional History of England (1880) 65 ff.
13 Wiechers M VerLoren van Themaat Staatsreg (1981) 75 explains the development of the custom
to send one representative (doomsman) on behalf of the residents of a particular area to the
people’s assembly (ding, folk-moot). See also Pennock JR and Chapman J Representation (1968);
Basson DA Verteenwoordiging in die Staatsreg (1981 thesis UP) 39 ff.
14 Anson WR The Law and Custom of the Constitution (1922) 49 ff. Hence, the development of the
principle “no taxation without representation”. Since the 19th century, the representative basis
of parliament was extended gradually until universal adult franchise was introduced early in
the 20th century. Lowering of the age restriction from 21 to 18 years has indeed only been
achieved in 1969 in terms of the Representation of the People Act of 1969.
Chapter 8 National legislative authority 89
Today, the principle of representation is one of the essential elements of a demo-
15
cratic system. The ideal of government of the people, by the people and for the
people remains the foundation of democracy. All democratic systems must at least
satisfy the principle of representation. The right to vote, regular elections, the
particular electoral system that is employed, and the right freely to form political
parties and participate in elections are some of the most important methods to give
effect to the principle of representation.16
The development of parliament since the fourteenth century is characterised by
the fierce, and sometimes bloody, struggle between parliament and the king for
legislative supremacy in the state.17 After the final submission of the monarchy to
parliament towards the end of the seventeenth century,18 the further development of
parliament revolved around two aspects, namely, the development of political par-
19
ties and cabinet government. Whereas the “management” of the state was still
undertaken by the monarch and the cabinet, the principle of responsible government,
as another essential feature of democracy, developed at the same time: the cabinet
20
could only govern with the continuous support of parliament. Responsible gov-
ernment ensues from representative government because the government must be
21
controlled by the people. Parliament is the spearhead of this controlling process.
As the oldest parliament, and as the supreme legislature of one of the largest em-
pires in history, the influence of the Westminster parliament extended far and wide.22
The principles of representative and responsible government as they developed in
England were and are applied generally in democratic systems. The first parliamen-
23
tary institution in South Africa was based on the Westminster parliament and,
despite drastic digressions during the twentieth century, strong resemblances still
exist between the South African and British parliaments.24
Section 1 of the Constitution states that the principles of representative and respons-
ible government are foundational values of the Republic. Many constitutional pro-
visions give effect to these principles.
________________________
15 See Basson DA Verteenwoordiging in die Staatsreg (1981 thesis UP)). For a comprehensive study
of the history of democracy and the development of representative and responsible govern-
ment, see Venter R Demokrasie en die Reg op Vryheid van Uitdrukking (2016 thesis UJ).
16 See paras 2.3.2, 2.3.3 and 2.3.4. Also note the distinction made between representative, partic-
ipatory and direct democracy in Doctors for Life International v Speaker of the National Assembly
2006 12 BCLR 1399 (CC), 2006 6 SA 416 (CC) 1441–1442.
17 This struggle is discussed extensively in the works quoted in n 22–23. See also para 2.3.2 below
and the explanation by Wiechers M VerLoren van Themaat Staatsreg (1981) 76 ff.
18 As confirmed among others by the Bill of Rights of 1689. See eg Roberts C The Growth of
Responsible Government in Stuart England (1966).
19 Maitland FW The Constitutional History of England (1965) 90 ff; Mackintosh JP The British Cabinet
(1977) 35 ff.
20 See the overview of the Westminster system in ch 3 para 3.2.
21 See ch 9 para 8.
22 See Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU) 122 ff; Burns A
Parliament as an Export (1966); Bailey SD Parliamentary Government in the Commonwealth (1951);
Bradshaw K and Pring D Parliament and Congress (1981); Lord RH “Common features of par-
liaments throughout Europe” in Spufford P Origins of the English Parliament (1967) 21 ff.
23 Kilpin R The Parliament of the Cape (1938); May HJ The South African Constitution (1955).
24 Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU) 160 ff, in particular
175-183.
2.2 Functions
In addition to the exercise of legislative authority, parliament performs representa-
tive, control, conflict regulation, judicial and administrative functions.
For the purposes of constitutional law, the legislative function of parliament is the
most prominent. However, in a modern democratic state, parliament performs
25
other functions as well. The following functions of parliament can be identified.
2.2.1 Representative function
26
Parliament represents the people in decision making at central level, and must
27
articulate the interests of the people. Parliament constitutes a communication
28
channel between the national government and the people and also performs an
29
informative and educational function vis-à-vis the electorate.
2.2.2 Control function

The principle of responsible government is established through parliament’s con-
30 31
trol of the executive. The function includes control of state spending, inquiries into
32
the administration, and analysis and criticism of government policy through ques-
tions and debates.33
2.2.3 Conflict-regulation function

Parliament is continuously engaged in seeking compromises among interest groups,
regulating conflict, furthering national unity, and enhancing the stability of the
system.34 As it contributes to stability, the so-called recruiting function of parliament,
in other words, the identification and development of leadership, complements this
35
function.
2.2.4 Judicial and administrative function
By this is meant the discipline and punishment of members of parliament and
members of the public (for example for contempt), the suspension of members of
________________________
25 See also Murray C and Nijzink L Building Representative Democracy: South Africa’s Legislatures and the
Constitution (2002) 4–6; Bradley AW and Ewing KD Constitutional and Administrative Law (2003) 185.
26 Harvey J and Bather L The British Constitution (1977) 171; Keefe WJ and Ogul MS The American
Legislative Process: Congress and the States (1997); Mezey ML “The functions of legislatures in the
Third World” 1983 Legislative Studies Quarterly 518; Blair GS American Legislatures: Structures and
Process (1967) 35.
27 Amery LS Thoughts on the Constitution (1947) 12; Adams JC The Quest for Democratic Law: The Role
of Parliament in the Legislative Process (1970) 188 ff; Griffith JAG, Ryle M and Wheeler-Booth MAJ
Parliament: Functions, Practice and Procedures (1989) 6.
28 Loewenberg G and Patterson SC Comparing Legislatures (1979) 44.
29 Blair GS American Legislatures: Structures and Process (1967) 47; Keefe WJ and Ogul MS The
American Legislative Process: Congress and the States (1997) 28 ff.
30 Woodhouse D “The reconstruction of constitutional accountability” 2002 Public Law 73. See
ch 9 para 8.2.
31 Harvey J and Bather L The British Constitution (1977) 171.
32 Blair GS American Legislatures: Structures and Process (1967) 53 ff; Keefe WJ and Ogul MS The
American Legislative Process: Congress and the States (1997) 25 ff.
33 Jennings I The Law and the Constitution (1959) 7; Norton P The Commons in Perspective (1981) 69.
34 Loewenberg G and Patterson SC Comparing Legislatures (1979) 57; Eldridge AE “Introduction:
on legislatures in plural societies” in Eldridge AE (ed) Legislatures in Plural Societies: The Search
for Cohesion in National Development (1977) 4 ff.
35 Loewenberg G and Patterson SC Comparing Legislatures (1979)) 51; Mezey ML Comparative
Legislatures (1979) 9 ff.
36
the executive authority, and the ratification of executive actions, for example in the
field of foreign relations.
2.2.5 Legislative function

The largest component of the activities of parliament entails the consideration of
legislative proposals – debating, amending and approving the bills submitted by the
executive, committees or individual members. This is the most important function
37
of parliament.
The South African Constitution expressly refers to some of these functions of par-
liament. Section 42(3) provides that the National Assembly is elected to represent
the people and to ensure government by the people and that parliament does this
by:
• electing the President,
• providing a forum for the public consideration of issues,
• passing legislation, and
• overseeing and controlling the executive.
2.3 Composition
2.3.1 Uni- and bi-cameral parliaments 91
2.3.2 Parliamentary right to vote 92
2.3.3 Electoral systems 95
2.3.4 Political parties 98
2.3.5 Membership 100
2.3.6 Qualifications and disqualifications of members of parliament 101
2.3.7 Elections 103
2.3.8 Term 105
2.3.1 Uni- and bi-cameral parliaments

Parliaments may consist of one or two chambers or houses.
Most parliaments consist of one house.38 The reasons for the establishment of two
houses include: better representation in heterogeneous societies, alleviating parlia-
ment’s workload, and promoting thorough consideration of matters before parlia-
ment. In respect of the last aspect, a second house is often described as a house of
revision.39
________________________
36 See eg the procedures for removal from office in terms of s 89 of the Constitution and the 25th
amendment to the American Constitution.
37 For a discussion of the argument that, as a result of the transfer of legislative initiative to the
executive, parliament performs a legitimising rather than a legislative function, see Rauten-
bach IM and Malherbe EFJ Constitutional Law (2009) 120–121.
38 According to Van Maarseveen HTJF and Van der Tang G Written Constitutions (1978) 61 a total
of 83 out of 135 parliaments consisted of one house at that stage. In another study of 83 par-
liaments it was found that 57 consisted of two houses (Inter-Parliamentary Union I Parliaments
of the World (1986) 14).
39 Pandey M “Second chambers” 1983 Journal of Constitutional and Parliamentary Studies 12;
Longley LD and Olsen S (eds) Two into One: The Politics and Process of Bicameral/Unicameral
Change (1991).
The South African parliament consisted of three houses in terms of the 1983 Con-
40
stitution. Parliament now consists of two houses, the National Assembly and the
National Council of Provinces.41 The purpose of the National Council of Provinces is
to represent the provinces in parliament and to ensure that provincial interests are
42
taken into account in the national sphere. The Council does this by:
• participating in the national legislative process, and
43
• providing a forum for the public consideration of issues affecting the provinces.
For this purpose, the provincial legislatures and executive councils are represented
in the Council.44 As will be explained later, the Council has specific powers relating
to bills affecting the provinces.
2.3.2 Parliamentary right to vote

The parliamentary right to vote is the right of citizens to make a direct choice in the
designation of parliament. Section 19(3) of the Constitution provides that every
adult citizen has the right to vote for any legislative body established in terms of the
Constitution.
Parliamentary franchise, or the right to vote, emanates from the principle of repre-
sentative government. The people have the right to elect persons to represent them
45 46
in parliament. The right to vote must be general, equal, direct and secret.
• The principle of general or universal franchise usually means that all adult citizens
47
who comply with certain minimum requirements must have the right to vote. It
prohibits the exclusion of particular groups on the basis of arbitrary considera-
tions, but is not interpreted to prohibit qualifications on the basis of, for exam-
ple, mental illness or age.
• The principle of equal franchise prohibits that some voters have multiple votes or
that more weight is attached to their votes than to the votes of others. This prin-
ciple affects the details of voter qualifications and electoral systems.
• The principle of direct franchise means that the vote of every voter has a direct
influence on the result and that no go-between is allowed who could influence
the result after the voters have voted.
________________________
40 Under certain circumstances parliament could consist of only two and even one house – s 37(2)
of Act 110 of 1983.
41 S 42(1).
42 See Murray C and Nijzink L Building Representative Democracy: South Africa’s Legislatures and the
Constitution (2002) 41 ff on the link that the Council provides between the national and provin-
cial spheres of government.
43 S 42(4). See the later discussion of the relationship between the two houses. See also ch 11.
44 See para 2.3.5. For early contributions on the question whether the Council is successful see
Murray C and Simeon R “From paper to practice: the National Council of Provinces after its
first year” 1999 SA Public Law 96; Malherbe EFJ “The South African national council of prov-
inces: Trojan horse or white elephant?” 1998 TSAR 77.
(CC) paras 11 and 122; My Vote Counts NPC v Minister of Justice and Correctional Services 2018 8
BCLR 83 (CC), 2018 5 SA 380 (CC) para 2.
46 See eg Ncholo P “The right to vote” in Steytler N, Murphy, J, De Vos P and Rwelamira M (eds)
Free and Fair Elections (1994) 57 ff; De Waal J “Political rights” in Chaskalson M et al (eds) Consti-
tutional Law of South Africa (1998) para 23.6(b).
47 August v Electoral Commission 1999 4 BCLR 363 (CC), 1999 3 SA 1 (CC) para 17.
48
• By secret ballot is meant that the right to vote must be exercised voluntarily and
that any coercion in its exercise is prohibited. This affects the particulars, with
regard to elections, contained in an electoral law. The South African Electoral
Act contains various provisions in which the secrecy of the ballot is protected and
provides inter alia that every voter shall vote in secret.49
The South African Bill of Rights only guarantees a secret ballot, but the guarantee
will be interpreted to include all these elements, among other things, on account of
other provisions such as the right to equality in section 9 of the Constitution.
In terms of section 19(3) of the South African Constitution, every adult South
African citizen has the right to vote for any legislative body established in terms of
50
the Constitution. Section 46(1) elaborates on this and states that legislation must
provide for a common voters’ list and for a voting age of at least 18 years. Other
voting qualifications can be added by legislation and, at present, additional qualifi-
51
cations are contained in the Electoral Act. The significance of section 19(3) is, inter
alia, that the Electoral Act may not limit the right to vote in the Bill of Rights unless
the limitations comply with the requirements of the general limitation clause in the
Bill of Rights. Disqualifications of voters in the Electoral Act, must therefore be
contained in generally applicable legal rules and must be reasonable and justifiable
52
in an open and democratic society based on human dignity, equality and freedom.
In Minister of Home Affairs v NICRO provisions in the Electoral Act that prevented
prisoners who were sentenced to imprisonment without the option of a fine from
voting were, for example, declared invalid because the court could not find justifica-
tion for their exclusion.53 Qualifications elsewhere in the Constitution itself, such as
citizenship and age, are authorised by section 36(2), which provides that save as
provided in section 36(1) or any other provision of the Constitution, no law may limit the
rights in the bill of rights.54 However, as the Bill of Rights is entrenched more strictly
55
than most other provisions of the Constitution, later amendments to these qualifi-
cations in the Constitution can be tested against the limitation clause if they are
adopted according to a less strict procedure than the procedure prescribed for the
amendment of the Bill of Rights.
Registration as a voter may be regarded as a reasonable administrative require-
56
ment for the exercise of the right to vote. The Electoral Act provides that a person
may not register as a voter if that person has applied for registration fraudulently, is
________________________
48 There are states in which the exercise of the right to vote is compulsory (see De Meyer J
“Electoral rights” in Macdonald RStJ, Matscher F and Petzold H The European System for the Pro-
tection of Human Rights (1993) 553 561).
49 See s 38 of Act 73 of 1998.
50 Hence, participation in referenda and elections for non-legislative bodies are also excluded,
which corresponds to the position in Europe (see De Meyer J “Electoral rights” in Macdonald
RStJ, Matscher F and Petzold H The European System for the Protection of Human Rights (1993)
554–555).
51 S 8(2) of Act 73 of 1998.
52 S 36(1).
53 2004 5 BCLR 445 (CC), 2005 3 SA 280 (CC).
54 Azanian Peoples Organisation (AZAPO) v President of the RSA 1996 8 BCLR 1015 (CC), 1996 4 SA
672 (CC) para 10. See also para 2.3.6 on the qualifications of members of parliament.
55 See para 2.5.7.6 below.
56 De Meyer J “Electoral rights” in Macdonald RStJ, Matscher F and Petzold H The European System
for the Protection of Human Rights (1993). Contrary to what was said in New National Party of South
Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) para 15 registration
is indeed a factual limitation of the right to vote. The national voters roll could also be com-
piled simply by transferring the names on the population register to the voters roll. The fact
not a South African citizen, has been declared by the court to be of unsound mind
57
or mentally disordered, or is detained under the Mental Health Act, or is not
ordinarily resident in the voting district in which the person applies for registration.
Prisoners may also register and vote.
It is significant that former disqualifications such as detention due to drug dependen-
cy, and imprisonment without the option of a fine for serious crimes involving vio-
lence or dishonesty, such as murder, rape, indecent assault, malicious injury to
property, breaking into or entering any premises with the intent to commit an offence,
58
fraud, corruption and bribery, have been omitted. Despite the absence of this type of
disqualification, the Electoral Commission did not, for the purposes of the general
election of 1999, make provision for the registration of prisoners. According to the
Constitutional Court, the action of the Commission would effectively disenfranchise all
59
prisoners. There was no statutory authorisation for this action by the Commission,
and therefore the action could not be justified in terms of the general limitation provi-
60
sion of the Bill of Rights. The Court pointed out that parliament could, by legislation,
61
still disenfranchise certain categories of prisoners, but in the absence of such legisla-
tion prisoners retained the right to vote and neither the Commission nor the Court
62
could deprive them of it. Consequently, the Court ordered that all prisoners in cap-
tivity during the registration process be allowed to register, and that all prisoners be
enabled to vote on polling day.
In order to register as a voter, a person must be in possession of a bar-coded identity
document.
63 64
This requirement of the Electoral Act also led to a law suit. It was alleged that the re-
quirement was unconstitutional as it would disenfranchise millions of voters because they
did not apply timeously for the new identity document, and because the Department of
Home Affairs was unable to process all the applications on time. The Cape High Court
held that voters had had sufficient time to apply for the identity document and to regis-
ter as voters. In view of the salutary objective of the bar-coded identity document to elim-
inate fraud and other irregularities, the alleged limitation imposed by the requirement
65
on the voters was not unreasonable and could not be regarded as unconstitutional. On
66
appeal, this decision was confirmed by the Constitutional Court.
________________________
that registration is a justifiable limitation of the right does not mean that it is not factually im-
posing factual limitations.
57 Act 18 of 1973.
58 S 16 of the Electoral Act 202 of 1993. It includes an attempt to commit any of these crimes
(s 16(d)(iii)).
59 August v Electoral Commission 1999 4 BCLR 363 (CC), 1999 3 SA 1 (CC). See Rautenbach IM
“Die beperking van stemreg” 2000 TSAR 552 for a discussion of this judgment.
60 Para 23.
61 See De Waal J “Political rights” in Chaskalson M et al (eds) Constitutional Law of South Africa
(1998) para 23.6(b). 23.15 who argues on principle that prisoners should in any case not be
deprived of their voting rights. In contrast, the exclusion of prisoners is not regarded as unrea-
sonable within the European human rights dispensation (De Meyer J “Electoral rights” in
Macdonald RStJ, Matscher F and Petzold H The European System for the Protection of Human Rights
(1993) 560).
62 Para 31. The Court also states: “Parliament cannot by its silence deprive any prisoner of the
right to vote. Nor can its silence be interpreted to empower or require the Commission or this
Court to decide which categories of prisoners, if any, should be deprived of the vote, and
which should not. The Commission’s duty is to manage the elections, not to determine the
electorate; it must decide the how of voting, not the who” (para 33).
63 See the definition of an “identity document” in s 1 of Act 73 of 1998.
64 New National Party of South Africa v Government of the RSA 1999 4 BCLR 457 (C).
65 New National Party of South Africa v Government of the RSA 1999 4 BCLR 457 (C) 477–478.
(CC). The decision of the Court was confirmed in Democratic Party v Minister of Home Affairs
In conclusion, it should be noted that the exercise of voting rights is closely related
to other so-called political rights, such as the right to form political parties and parti-
cipate in political activities, the right to free and fair elections, the right to freedom
of expression, the right to freedom of association, and the right to assemble and
demonstrate peacefully and unarmed.
2.3.3 Electoral systems

2.3.3.1 General
There are numerous electoral systems through which the citizens of a country exercise
the right to vote for parliament.67
The electoral system determines the way in which the votes cast in an election are
68
translated into seats in the legislature. Broadly speaking, electoral systems may be
divided into two categories, namely constituency systems and systems of proportional
representation.
Constituency systems are the oldest type of electoral system. The country is demar-
cated into specific geographical units or constituencies and the voters in every
constituency elect their representative or representatives for that constituency directly.
Objections to constituency systems are, among others, that they do not provide repre-
sentation to the voters whose candidates have not been elected and that, consequently
(although some variations alleviate the problem), the composition of parliament
does not accurately reflect the support enjoyed by the political parties. A party may,
for example, receive 30% of the vote nationally, but, as it has not obtained a majority
in any constituency, it does not secure a single seat in parliament.
The purpose of systems of proportional representation is to eliminate this problem.
The objective is to bring about a direct relationship between the percentage of the
total votes cast in favour of a particular party in an election and the number of seats
it obtains in parliament. A large number of variations exist.
• The most elementary form of proportional representation is the list system in
terms of which the voter casts a single vote for the party of his or her choice and
each party simply receives the same percentage of seats as the percentage of votes
that it has secured nation-wide. The seats are filled from the list of candidates
which each party compiles and submits. There are no constituencies, although
the support for parties may also be determined on a regional basis.
• According to the preferential system, the electorate does not initially vote for par-
ties, but for individual candidates. This the voters do by arranging the names of
the candidates in order of preference.
It is also possible to combine the different electoral systems. In Germany, half the
members of the Bundestag (lower house) are elected in single member constituencies
according to the relative majority principle, and the other half according to the list
system of proportional representation. Seats are allocated in such a way, however,
________________________
1999 6 BCLR 607 (CC), 1999 3 SA 254 (CC). See Rautenbach IM “Die beperking van stemreg”
2000 TSAR 552, 555 ff who criticises the two judgments on the ground of the Court’s refusal to
find that the right to vote was indeed factually infringed by the requirement, and thus its fail-
ure properly to apply the general limitation clause, s 36.
67 For a more extensive overview, see Rautenbach IM and Malherbe EFJ Constitutional Law (2009)
126–128.
68 De Ville J and Steytler N “Introduction” in Steytler N and De Ville J and (eds) Voting in 1999:
Choosing an Electoral System (1996) 1.
that the total number of seats of each party corresponds with the total number of
votes it obtained and proportionality is thus maintained.
Systems of proportional representation produce a more representative parlia-
ment, but are sometimes criticised for their tendency to cause a proliferation of
small parties and splinter groups, which gives rise to less stable coalition govern-
69
ments. This tendency can be alleviated somewhat by the requirement of a certain
minimum percentage support (a threshold) in the election in order to qualify for
parliamentary representation. It is also alleged that proportional representation
leads to separation between the voters and their representatives because a repre-
sentative is not linked to a particular geographical area and, therefore, to the voters
in that area. This problem can probably be curtailed by the combined system.
The members of most parliaments are directly elected, but in some cases mem-
bers are designated by other methods as well. Nomination of members by the execu-
tive is found in Canada, where the members of the Senate are nominated by the
70
government. The members of the German Bundesrat are nominated by the state
governments.71 Members of the South African National Council of Provinces are
72
designated by the provincial legislatures. Seats may also be reserved for particular
interest groups, for example women and workers in Tanzania,73 and representatives
74
of the castes in India. The British House of Lords consists of persons who have
been elevated to the peerage through hereditary or conferred titles.75
2.3.3.2 South Africa
The National Assembly is elected according to a system which provides, in general,
for proportional representation.76
Section 46 of the Constitution provides that the electoral system must be prescribed
by legislation, must be based on a common voters’ roll, and must result, in general,
in proportional representation. That leaves room for adaptations to the system
which may even include a combination of proportional representation and constitu-
encies, as long as the principle of proportional representation is retained in gen-
77
eral.
The particulars of78 the system that applied to the election of the present parliament are
briefly as follows:
(a) In order to further the national distribution of seats, half the members79
were elect-
ed on a national list of candidates, the other half on provincial lists.
(b) For the purposes of the provincial lists of candidates, each province was allocated a
fixed number of seats: Western Cape – 21; Eastern Cape – 28; Northern Cape – 4;
________________________
69 See eg Basson DA South Africa’s Interim Constitution: Text and Notes (1995) 65. See also De
Villiers B “An electoral system for South Africa” 1991 TSAR 43 55 for more pros and cons.
70 S 24 of the Canadian Constitution.
71 S 51(1) of the German Constitution.
72 Ss 60–61. See below.
73 S 80 of the Tanzanian Constitution.
74 S 81 ff of the Indian Constitution.
75 De Smith SA Constitutional and Administrative Law (1985) 297 ff.
77 In terms of constitutional principle VIII no departure from the principle was allowed.
78 As contained in appendix A of schedule 6 of the Constitution, read with schedule 2 of the
Interim Constitution, and the Electoral Act 73 of 1998.
79 Item 2 of appendix A referred to in the previous note. The regions correspond with the
provinces.
KwaZulu-Natal – 40; Free 80
State – 15; North-West – 15; Limpopo – 20; Mpumalanga
– 14; and Gauteng – 43.
(c) The quota for every province, in other words, the minimum number of votes a par-
ty needed to win a seat, was determined by dividing the total number of votes cast
81
in that province by the number of seats allocated to that province, plus one.
(d) The total number of votes cast in favour of a party in a particular province was di-
vided by the quota to determine that party’s number of seats on that provincial list.
(For example, if two million people cast their votes in the Northern Province, the
quota would be about 100 000 and if one million votes were cast in favour of party
X in the Northern Province, that party would be entitled to 10 of the 20 seats in
that province.) Except for the quota, there was no other provision for a threshold
with which a party had to comply to win seats.
(e) This calculation was repeated for each province to determine a party’s total num-
ber of seats on the provincial lists.
(f) In respect of the national list, the total number of votes cast nationally in the elec-
tion was divided by 401 (the total number of members of the National Assembly,
82
plus one) to determine a quota.
(g) The total number of votes cast in favour of a party nationally was divided by the
quota to determine that party’s total number of seats on the national list. (For ex-
ample, if 20 million votes were cast nationally, the quota would be 50 000, and if
five million votes were cast in favour of party X, it would be entitled to 100 seats –
provisionally, because the provincial lists still had to be taken into account.)
(h) The final number of seats won by a party on the national list was calculated by sub-
tracting the total number of seats of that party on the provincial lists from the
number of seats provisionally allocated to that party on the national list. The par-
ty’s total number of seats was the sum of this final number of seats on the national
list and the party’s total number of seats on the provincial lists. (For example, if
party X had obtained 60 seats on the provincial lists, it would be entitled to 40 seats
on the national list. The party’s total number of seats remained 100 (60 on the
provincial lists and 40 on the national list). That amounted to 25% of the seats in
the National Assembly and corresponded exactly to the percentage of votes cast in
favour of that party in the election.)
83
(i) A party could submit only provincial lists of candidates. The seats to which that
party were entitled, in accordance with the number of votes cast in its favour na-
tionally, were then filled from the party’s provincial lists. (If party Y obtained 50
seats on the provincial lists, according to the calculation in paragraphs (d) and (e),
but four million of the total of 20 million votes were cast in its favour nationally,
party Y would be entitled to 80 seats, and a further 30 candidates from the party’s
provincial lists would then be added to the party’s provisional total. The total
number of seats of party Y (80) was 20% of the total of 400 seats, and correspond-
ed exactly with the percentage of votes cast in its favour in the election. The only
difference between parties X and Y was that all the elected candidates of the latter
were filled from provincial lists.)
(j) The seats to which a party was entitled were filled from the national and provincial
lists of candidates which each party had to submit beforehand or, as explained in
84
paragraph (i), only from provincial lists if the party did not submit a national list.
________________________
80 The preliminary allocation in item 2 referred to in the previous note was adapted slightly by the
Electoral Commission.
81 Item 5 of appendix A of schedule 6 of the Constitution, read with schedule 2 of the Interim
Constitution, and the Electoral Act 73 of 1998.
82 Item 6 of appendix A as referred to in the previous note.
83 Item 9 of appendix A as referred to in the previous note. The NP did so in the April 1994
election.
84 Schedule 2 of the Interim Constitution also contained provisions on the supplementation,
revision and publication of candidate lists.
The lists of candidates of any party could not contain a total of more than 400
names. However, if a party’s candidate lists contained less names than the total
number of seats to which it was entitled, that number of seats was reduced accord-
ingly and the surplus seats were distributed proportionally among the other par-
85
ties. At least 90% of the candidates on a provincial list had to reside in that
86
province.
2.3.4 Political parties

Political parties are interest groups who organise, and recruit members, for the pur-
87
poses of participating in elections. In South Africa, every citizen has the right freely
to make political choices, which includes rights with regard to political parties.
Political parties are normally formed freely and on any basis. Political parties seek to
represent the people in government and are the vehicle for the mobilisation of the
voters to participate in elections. Political parties are involved in forming the opin-
ions of the voters, they influence public opinion and political tendencies, and form
88
a link between the people and the government. Together with the principle of
regular, free and fair elections, political parties therefore uphold a multi-party sys-
89
tem of democratic government. The existence and activities of political parties
should thus be protected. As a matter of fact, multi-party democracy is one of the
underlying values of the South African Constitution protected in section 1. In addi-
tion, every citizen has the right freely to make political choices. This includes the
right to:
90
• form a political party;
• participate in the activities of, and recruit members for a political party; and
• campaign for a political party or cause.91
________________________
85 Item 7 of appendix A of schedule 6 of the Constitution, read with schedule 2 of the Interim
Constitution, and the Electoral Act 73 of 1998 See Democratic Party v Miller NO 1997 2 BCLR
223 (D), 1997 1 SA 758 (D).
86 S 40(3).
87 In My Vote Counts NPC v Minister of Justice and Correctional Services 2018 8 BCLR 83 (CC), 2018 5
SA 380 (CC) para 2, the Constitutional Court stated: “[T]he constitutionally-prescribed in-
strumentalities for rising to public office in elected offices are political parties and independ-
ent candidates.” See also Fredericks I “The legal regulation of political parties and their
participation in elections” in Steytler N and De Ville J and (eds) Voting in 1999: Choosing an
Electoral System (1996)) 73, 76–77, and De Vos P “It’s my party (and I’ll do what I want to)?: In-
ternal party democracy and section 19 of the Constitution” 2015 SAJHR 30-55.
88 Maduna P “Political rights” in Cheadle MH, Davis DM and Haysom NRL (eds) South African
Constitutional Law: The Bill of Rights (2002) 270. See also s 5 of the Public Funding of Repre-
sented Political Parties Act 103 of 1997.
89 A multi-party system is described as follows by the Constitutional Court: “A multiparty democ-
racy contemplates a political order in which it is permissible for different political groups to
organise, promote their views through public debate and participate in free and fair elections”
(United Democratic Movement v President of the RSA (1) 2002 11 BCLR 1179 (CC), 2003 1 SA 495
(CC) para 26).
90 Political parties that are represented in a legislature may, if their members wish to retain their
seats, merge or divide only for a period of fifteen days during September of the second and
fourth year after a general election (schedule 6A of the Constitution). See also para 2.3.6.
91 S 19(1)(a), (b) and (c). See De Waal J “Political rights” in Chaskalson M et al (eds) Constitution-
al Law of South Africa (1998) para 23.2(d). In Van Dyk v Maithufi NO 2004 5 BCLR 526 (T),
2004 1 SA 441 (T) the prohibition on public political participation by a police officer in the SA
Police Service Act 68 of 1995 was found to be a valid limitation for the purposes of impartial
service delivery by the police.
The state has the duty to protect the political rights of citizens, which includes the
protection of parties against interference in their canvassing and campaigning activi-
92
ties. As in the case of franchise, other rights, such as the right to freedom of expres-
sion, the right to freedom of association, and the right to assemble peacefully and
unarmed, are also involved in the exercise of the right freely to make political
93
choices. The rights in respect of free political participation are not absolute. In
terms of the Electoral Act, no political party may participate in an election unless
94
it is registered as a political party. In order to register, a party must supply various
95 96
particulars and a deposit must be paid.
The principle that political parties may be formed freely allows the formation of
parties that propagate the destruction of the democratic system or the state as such.
In Germany, political parties may be prohibited by the Federal Constitutional Court
if their objectives, or the activities of their supporters, are directed against the dem-
97
ocratic basis of the state or its existence. In South Africa before 1990, numerous
political parties and organisations were banned in terms of security legislation.98 In
terms of the Electoral Act, a party will be allowed to participate in an election only if
it subscribes to the electoral code, in terms of which parties are expected, among
99
other things, to reject violence.
The limitations imposed on the free activities of political parties by the Electoral
Act are subject to the Constitution. These provisions must therefore comply with the
criteria for the limitation of the rights contained in the Bill of Rights. A political
party is bound by the constitutional rights of its members which include their politi-
cal rights in section 19 of the Constitution100 and their right to administrative justice
in section 33 of the Constitution.101
In pursuance of the commitment to a multi-party system in section 1, political parties
enjoy other forms of recognition in terms of the Constitution as well. The rules of pro-
cedure of each house must provide for the participation by minority parties in all
________________________
92 The Electoral Act contains extensive provisions in this regard. In Idasa v ANC 2005 10 BCLR
995 (C), 2005 5 SA 39 (C) the court held that a political party is not obliged to disclose details
of private donations it receives. In My Vote Counts NPC v Minister of Justice and Correctional Services
2018 8 BCLR 83 (CC), 2018 5 SA 380 (CC) the Constitutional Court however found that the
private funding of political parties needs to be transparent and accordingly declared certain
parts of the Promotion of Access to Information Act 2 of 2000 invalid to the extent that it did
not provide for “the recordal, preservation and reasonable disclosure of information on the
private funding of political parties and independent candidates” (para 91).
93 See eg Fredericks I “The legal regulation of political parties and their participation in elec-
tions” in Steytler N and De Ville J and (eds) Voting in 1999: Choosing an Electoral System (1996))
73 ff.
94 S 26 of the Electoral Act.
95 Eg, the name, symbol, address and constitution of the party (s 15 of the Electoral Commission
Act 51 of 1996).
96 For an election of the National Assembly the deposit is R200 000 and of a provincial legislature
the deposit is R45 000.
97 S 21(2) of the German Constitution.
98 Dugard CJR Human Rights and the South African Legal Order (1978) 164 ff.
99 S 99, read with schedule 2 of the Electoral Act. See in particular item 9.
100 Ramakatsa v Magashule 2013 2 BCLR 202 (CC). S 36(1).
101 On the application of the right to just administrative action to the internal affairs of political
parties, see eg Bushbuck Ridge Border Committee v Government of the Northern Province 1999 2 BCLR
193 (T), 1998 JOL 4100 (T) 200B; Marais v Democratic Alliance 2002 2 BCLR 171 (C) para 50;
Harding v Independent Democrats 2008 5 BCLR 523 (C), 2002 2 All SA 424 (C) 528B; Thornton L
“The constitutional right to just administrative action – are political parties bound?” 1999
SAJHR 351-371.
proceedings in a manner consistent with democracy. The rules must also provide for
financial and administrative assistance to parties in parliament to enable them to per-
form their functions effectively and must recognise the leader of the largest minority
102
party as the leader of the opposition. In national legislation provision must also be
made for the funding on an equitable and proportional basis of political parties that
103
participate in national and provincial legislatures. The Public Funding of Represent-
ed Political Parties Act which has been adopted accordingly creates a fund for this
purpose and provides that only parties represented in the National Assembly or a pro-
104
vincial legislature may be funded from it. The principle of state funding of political
105
parties applies in various countries, but in a developing society that has only recently
adopted a democratic system, the exclusion of non-represented parties may indefinite-
ly paralyse such parties. It also has the effect of protecting represented parties from
competition. It appears, therefore, as if this arrangement is unfair under such circum-
stances and places an unreasonable limitation on the free political participation of non-
106
represented parties and their members.
2.3.5 Membership
The membership of parliaments differs and is determined by various factors.
The membership of parliaments is determined chiefly by population figures and, to
a lesser extent, by the diversity of the population and by geographical considerations.
The idea is that every representative should represent a reasonable number of voters
107
or persons, but no fixed rules exist in this regard.
The two houses of the South African parliament are composed as follows:
(i) The Constitution provides that the National Assembly must consist of between
350 and 400 members and that the exact number of members must be determined
108
by another law. In terms of the Electoral Act, the number of members has been
109
fixed at 400.
________________________
102 Ss 57(2) and 70(2).

103 S 236.
104 See s 5 of Act 103 of 1997. See on the public funding of parties in terms of the previous
Electoral Act 74 of 1993 Workers International to Rebuild the Fourth International v IEC 1994 3 SA
277 (CSPE).
105 Eg Germany, France, Sri Lanka, Canada, Australia, Denmark, Belgium, the Netherlands,
Greece, Sweden, Austria, Italy, Spain and Zimbabwe. See the general discussion by Schefold
D “Background and basic principles of the financing of political parties” Konrad Adenauer
Stiftung Occasional Papers (October 1996).
106 In United Parties v Minister of Justice, Legal and Parliamentary Affairs 1998 2 BCLR 224 (ZS), 1998
2 SA 85 (ZS) a similar arrangement in Zimbabwe was declared unconstitutional. See the full
discussion of this decision and the South African Act by Malherbe EFJ “Is die Wet op die
Openbare Befondsing van Verteenwoordigde Politieke Partye, 1997, grondwetlik?” 1998
TSAR 575.
107 Inter-Parliamentary Union I Parliaments of the World (1986) 19. The 650 members of the
British House of Commons each represent about 84 000 people. In South Africa, the ratio is
one member for about 100 000 people. That corresponds with the position in France, Italy
and Kenya. In Sweden and Switzerland, the ratio is one representative for every 24 000 and
33 000 people, respectively. On the other hand, each of the 435 members of the American
House of Representatives represents nearly half a million people.
108 S 46(1) and (2).
109 Schedule 3 of the Electoral Act.
Chapter 8 National leegislative autthority 101
(ii) Thhe National Council off Provinces o of 90 membbers is composed of teen delegatess
110
per pro ovince which consist of six perrmanent an nd four spe ecial memb bers. The e
perman nent memb bers are desiignated by eeach provin
ncial legislatture on a prroportionall
111
basis. The speciaal delegatess consist of the premieer (or a mem mber of thee provinciall
legislatuure in his or
o her steadd) and threee other members of th he legislaturre designat--
112
ed by th he legislatu
ure. In add dition to thee permanennt and speciial delegatess, organised
d
local go overnment may design nate not mmore than tten personss to particip pate in the e
proceed b they may not votee.113 Provinciial participaation in the
dings of thee Council, but e
Nationaal Council of Province es through the perman nent and sp pecial deleggates sufferss
from prractical and d other prob blems and, according to some writers, the Council doess
not succceed in all respects to represent tthe provincces effectivelly in nation
nal decision--
making g.114
Memmbers of parrliament recceive the remuneration n that is dettermined in n terms of a
115
law of parliamentt. The Co onstitution aand other legislation regulate th he filling off
116
vacanciies.
2.3.6 Qualification
Q ns and disqu
ualifications oof members oof parliamen
nt
Persons wishing to t be electeed to parliaament, and d serving members,
m m
must complyy
with cerrtain qualiffications.
The quualifications and disquaalifications for membeers of parlia ament are dealt
d with in
n
section 47 of the Constitution
C n in respectt of the Nattional Assemmbly, and seection 62 in
n
respectt of perman nent membe ers of the N
National Cou ovinces.117 All
uncil of Pro A memberss
of parliiament musst be citizenns and mustt in the casee of the Nattional Assemmbly qualifyy
___________
______________
110 S 60.
6 For a full discussion off the Nationaal Council of Provinces see e Taljaard R and a Venter A
“PParliament” in n Venter A and a Landsberrg C Governm ment and Polittics in the New w South Africaa
(2006) 36 ff.
111 Th he number of o members to t which each h party is enntitled is calculated by mu ultiplying thee
nu umber of seats of that partyy by ten and d dividing the result by the to otal number of o seats in thee
leg gislature pluss one. S 61(1 1) and part B schedule 3. Each legisla ature must deetermine how w
maany delegatess from each party p are to be permanen nt and how many m special delegates – s
61(2). See also the formula in the Determ mination of D Delegates (Na ational Counccil of Provinc--
es) Act 69 of 19 998.
112 Pe ermanent dellegates from a particularr province h hold their po ositions until immediatelyy
be efore the firstt sitting of the relevant prrovincial legisslature after its next electiion – s 62(3).
Th hat enables thhe legislature to designate new delegatees after an election. Speciall delegates are e
de esignated as reequired from time to time ((s 61(3)), whiich also has th he effect that the
t legislature e
maay designate other
o persons,, for example as a result of p political channges.
113 S 67.
6 See the Organised Local Governmen nt Act 52 of 11997.
114 Mu urray C and Nijzink
N L Build
ding Representaative Democracy:: South Africa’ss Legislatures an
nd the Constitu
u-
tioon (2002) 46–5 50; Malherbe R “South Afr frica: The Nattional Counciil of Provincees” in Van derr
Scchyff G (ed) Constitutionali
C ism in the Nethherlands and SSouth Africa: A Comparativee Study (2008))
10 03–119.
115 Th he Constitutio on provides th hat a law musst determine tthe frameworrk for the rem muneration off
pu ublic office ho olders and th hat a statutoryy commission n must make recommendaations in thatt
regard – s 219. See the Rem muneration off Public Officce Bearers Actt 20 of 1998 and a the Inde--
pe endent Comm mission for the e Remuneratiion of Public Office Bearerrs Act 92 of 19 997.
116 Ss 46(4) and 62 2(5), respectiively. The parrty has to nom minate the pe erson whose name n appearss
at the top of the list of candiidates of that party who weere unsuccesssful in the election. Should d
a party
p dissolve, the seats vaccated must bee allocated proo rata to the other
o parties (the
( Electorall
Acct contains deetailed provisiions on the fiilling of vacan ncies). See alsso the Nation nal Council off
Prrovinces (Perm manent Deleg gates Vacanciees) Act 17 of 1997.
117 Th he qualificatioons and disq qualifications for memberss of the Natio onal Council of Provincess
difffer in some respects
r from those for thee National Asssembly.
118
as a voter for the National Assembly, and the case of permanent members of the
119
National Council of Provinces qualify as voter for a provincial legislature.
Section 47(1)(a) of the South African Constitution provides that any person who
is in the service of the state and receives remuneration for it may not be a member
of the National Assembly. The purpose of this provision is to prevent double remu-
neration and conflict of interest. The Deputy President, ministers and deputy minis-
ters and persons whose offices have been declared by national legislation compatible
120
with membership of parliament, are exempted. The following persons may also
not be members of the National Assembly: permanent members of the National
Council of Provinces, a provincial legislature or a municipal council; unrehabilitated
insolvents; persons declared to be of unsound mind by a court; and persons who
have been convicted of an offence and sentenced to 12 months imprisonment with-
out the option of a fine, but not when an appeal is pending or five years have
121
elapsed after the sentence has been completed.
The Bill of Rights guarantees that every citizen has the right to be a candidate for
public office and, if elected, to hold office.122 This right is limited by the constitu-
tional provisions in respect of the qualifications of members of parliament. When
such provisions are contained in the Constitution they are authorised by section
36(2), which provides that save as provided in section 36(1) or any other provision of
the Constitution, no law may limit the rights in the Bill of Rights.123 However, as the
Bill of Rights is entrenched more strictly than most other provisions of the Constitu-
124
tion, later amendments to these limitations can be tested against the limitation
provision if these amendments are adopted according to a less strict procedure than
the procedure prescribed for the amendment of the Bill of Rights.
A member of the National Assembly vacates the seat if the member ceases to qual-
ify in terms of section 42, or absents himself or herself without leave under circum-
125
stances for which the rules prescribe loss of membership. The same disqualifications
apply in the case of permanent members of the National Council of Provinces, with
the addition of further disqualifications.126 A member of a house who becomes sub-
ject to a disqualification in terms of sections 47 and 62 automatically vacates the seat.
In terms of the Interim Constitution a member who changed party also had to
127
vacate his or her seat. That established an imperative mandate in our constitutional
________________________
118 See para 2.3.2 above.

119 See ch 11 para 2.3.2.2.
120 For a full discussion of this provision, see Rautenbach IM and Malherbe EFJ Constitutional
Law (2009) 136–137.
121 S 47(1)(b)(c)(d)(e).
122 S 19(2). The right is not limited to standing for public office with the support of a political
party. My Vote Counts NPC v Minister of Justice and Correctional Services 2018 8 BCLR 83 (CC),
2018 5 SA 380 (CC) para 29: “Meaning, every adult citizen may in term of the Constitution
stand as an independent candidate to be elected to municipalities, Provincial Legislatures or
the National Assembly.”
672 (CC) para 10. See also para 2.3.2 on voting qualifications.
124 See para 2.5.7.6.
125 S 47(3).
126 Namely, that a party may recall a delegate if the delegate (i) has lost the confidence of the
provincial legislature, or (ii) ceases to be a member of that party. S 62(4)(b) and (c). In Van Zyl
v NNP 2003 10 BCLR 1167 (C), 2003 3 All SA 737 (C) it was held that the action to recall was
an administrative action which must be procedurally fair.
127 S 43(b) of Act 200 of 1993. See eg Speaker of the National Assembly v Makwetu 2001 3 BCLR 302
(C); De Villiers v Munisipaliteit, Beaufort-Wes 1998 9 BCLR 1060 (C).
law, which entails that elected representatives are bound by the orders of the party
under the banner of which they have been elected. According to the notion of a free
mandate, in contrast, representatives are not bound by outside directives, and are
128
guided only by their own conscience to act in the public interest. The Constitution
provides that the imperative mandate may be abolished by an ordinary act.129 Such
legislation which applied to all three spheres of government was adopted during
130
2002, but the legislation applicable to parliament and the provincial legislatures
was declared invalid, because it had not been adopted within a reasonable time as
131
required by the Constitution. The judgment was followed by a constitutional
amendment which made provision for a free mandate but in a restrictive way.132 This
approach has however been abolished in favour of a return to the imperative man-
date by the adoption of the Constitution Fourteenth Amendment Act of 2008 and
the Constitution Fifteenth Amendment Act of 2008 which applies to the National
Assembly and the National Council of Provinces respectively. It is therefore no
longer possible for members to change party without losing their seats.
2.3.7 Elections
133
Regular, free and fair elections are essential for a representative parliament.
The Bill of Rights entrenches the right of every citizen to free, fair and regular
134
elections for any legislative body established in terms of the Constitution. To
ensure regular elections, parliament is elected for a fixed term after which it dissolves
for another election. Free elections means that everybody must be able to participate
in an election and cast their votes without interference or coercion. Fair elections
________________________
128 See on the free and imperative mandate theories Basson DA Verteenwoordiging in die Staatsreg
(1981 thesis UP); Klein HH “The party-related mandate in South Africa’s new Constitution”
Konrad Adenauer Stiftung Occasional Papers (July 1994) 3 ff; Fick G “The anti-defection clause
in the South African Constitution” 1999 SA Public Law 46. In In re: Certification of the Constitu-
tion of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) paras 180–188 it was held
that the imperative mandate was not inconsistent with the constitutional principles.
129 Item 13 of schedule 6A, which inter alia provides that the Act may provide that a member of a
legislature who ceases to be a member of a particular party may remain a member of that leg-
islature. It was regulated this way because the imperative mandate still applied for the first
election in terms of the 1996 Constitution (item 6(3) of schedule 6 of Act 200 of 1993).
130 Four separate laws were adopted inter alia because the arrangements made required various
consequential amendments. The Constitution of the Republic of South Africa Second Amend-
ment Act 21 of 2002 and the Loss or Retention of Membership of National and Provincial Legis-
latures Act 22 of 2002 regulated the position in parliament and the provincial legislatures,
whereas the Constitution of the Republic of South Africa Amendment Act 18 of 2002 and the
Local Government: Municipal Structures Amendment Act 20 of 2002 regulated the position of
municipal councils.
131 United Democratic Movement v President of the RSA (1) 2002 11 BCLR 1179 (CC), 2003 1 SA 495
(CC) para 108.
132 Constitution of the Republic of South Africa Amendment Act 2 of 2003 and the Constitution
of the Republic of South Africa Second Amendment Act 3 of 2003. The latter act contained
consequential provisions on the composition of the National Council of Provinces that follow
from the new arrangement.
133 See in Steytler N and De Ville J and (eds) Voting in 1999: Choosing an Electoral System (1996),
De Vos P, Murphy J and Steytler N “Introduction: free and fair elections”) xv ff; De Vos P
“Free and fair campaigning” 119 ff; Steytler N “Free and fair polling” 185 ff. See also New Nation-
al Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) para
12: “The right to vote is of course indispensable to, and empty without, the right to free and
fair elections.”
134 S 19(2).
means that every party must have an equal opportunity to canvass the support of the
voters. According to the Constitutional Court it also means that nobody may vote
more than once in the same election, and that only persons who are entitled to vote
135
are permitted to do so. The court also identified the following elements as being
of fundamental importance to the conduct of free and fair elections: (a) every
person who is entitled to vote should be registered to do so; (b) no one who is not
entitled to vote should be permitted to do so; (c) insofar as elections have a territo-
rial component, it must be ensured that only voters in the area concerned are regis-
tered and permitted to vote.136
The Constitution provides for a permanent Electoral Commission to manage elec-
tions and ensure that elections are conducted freely and fairly.137 The Commission is
138
independent and must act impartially.
The matter of elections relates to the term of parliament, discussed below, and to
the protection of franchise in the Bill of Rights, discussed in paragraph 2.3.2.
Usually, particulars with regard to elections are dealt with in separate electoral laws,
139
for example the registration of voters and political parties, nomination of candidates
140
and submission of candidate lists, the appointment and duties of electoral officers,
provisions in connection with voting stations, ballot papers and ballot boxes, holding
elections, counting votes, election expenses, unlawful election practices and court ap-
plications. The South African Electoral Act 73 of 1998 contains extensive provisions in
respect of these matters that are of particular practical relevance during elections. In
terms of section 49(2) of the Constitution, an election for the National Assembly must
be held within 90 days of the dissolution of parliament. When a government is forced
into an election by a motion of no-confidence, the government is therefore unable to
delay the election indefinitely. There is nevertheless sufficient time to organise the
election.
________________________
135 New National Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA
191 (CC) para 12.
136 Kham v Electoral Commission 2016 2 BCLR 157 (CC), 2016 2 SA 338 (CC) para 34; see also
paras 82–91. In this case the court held that the right to free and fair elections was violated by
the failure of the Electoral Commission to provide candidates in a municipal election with a
segment of the national voters’ roll which must include addresses of voters to be used in ward
elections.
137 S 190. See the Electoral Commission Act 51 of 1996. In order to ensure a free and fair
election, an Independent Electoral Commission was instituted by law for the election of April
1994 – Independent Electoral Commission Act 150 of 1993. See in Steytler N and De Ville J
and (eds) Voting in 1999: Choosing an Electoral System (1996), the discussion by Murphy J, De
Vos P, De Ville J and Sarkin J “Postscript: the legal framework of South Africa’s first demo-
cratic election” 240 ff and Murphy J “An independent election commission” 25 ff.
138 S 3 of Act 51 of 1996. In New National Party of South Africa v Government of the RSA 1999 5 BCLR
489 (CC), 1999 3 SA 191 (CC) the Court held that the departments responsible for the funding
and staffing of the Commission failed to appreciate the financial and administrative inde-
pendence of the Commission that is required by the Constitution (para 100). In Independent
Electoral Commission v Langeberg Municipality 2001 9 BCLR 883 (CC), 2001 3 SA 925 (CC) paras
22 and 27 it was also held that the Electoral Commission is an organ of state, but not part of
any sphere of government.
139 See ACDP v The Electoral Commission 2006 5 BCLR 579 (CC), 2006 JOL 16810 (CC) on the
payment of a deposit by a political party as a requirement to participate in elections.
140 In Liberal Party v The Electoral Commission 2004 8 BCLR 810 (CC), 2004 JOL 12666 (CC) it was
held that the Electoral Commission was bound by the Electoral Act 73 of 1998 and the Elec-
toral Commission Act 51 of 1996, and did not have a discretion to condone the late submis-
sion of candidate lists.
2.3.8 Term
A parliament is elected for a fixed term.
The fixed term of a parliament implies that regular elections must be held in order
to allow the electorate to exercise its power to elect its representatives in parliament
and, in the process, express itself on the measure of confidence it has in the gov-
ernment.141
The South African parliament has a term of five years, but can be dissolved earlier
142
under certain circumstances:
(i) If the National Assembly adopts a motion of no-confidence in the President due to a
swing in political loyalty away from the majority party or the President, the President
143
and ministers must resign. The effectiveness of this procedure in removing mem-
bers of the executive is however questionable. The National Assembly’s motion of
no-confidence procedures were successfully challenged in Mazibuko v Sisulu where
the Constitutional Court found that the Rules of the National Assembly were uncon-
stitutional to the extent that it did not adequately provide procedural rules for the
tabling of these motions and therefore also failed to act as an adequate check on the
144
executive. In United Democratic Movement v Speaker of the National Assembly, the Con-
stitutional Court found that the Speaker of the National Assembly had a discretion
to order that a motion of no-confidence be voted on by means of a secret ballot
procedure even though both the Constitution and the Rules of the Assembly were
145
silent on the matter.
If the motion of no-confidence is successfully adopted, however, and the Na-
tional Assembly is unable to elect a new President within 30 days, the Acting Presi-
dent must dissolve parliament in terms of section 50(2) for an election. However, the
latter provision has a wider scope and provides that if a vacancy in the office of Presi-
dent exists for whatever reason, parliament must be dissolved if it is unable to elect a
new President before the expiry of the deadline of 30 days. It is uncertain which
circumstances the provision is aimed at. If it includes circumstances beyond the
control of parliament, the question can be put why parliament must be punished for
something it has not been responsible for. Furthermore, circumstances preventing
parliament from electing a new President may include something like civil unrest, in
which case a compulsory general election may be undesirable.
(ii) The President must dissolve parliament if the National Assembly adopts a
resolution, supported by a majority of members, in this regard and if three years have
passed after an election.146 This arrangement can be related to the power of the
prime minister in the Westminster system to recommend at his or her own
________________________
141 For a comparative overview, see Rautenbach IM and Malherbe EFJ Constitutional Law (2009)
138–139.
142 S 49.
143 S 102(2). If the motion of no-confidence affects only the cabinet, excluding the President,
the President must reconstitute the cabinet and it does not affect the term of parliament –
s 102(1).
144 2013 11 BCLR 1297 (CC), 2013 6 SA 249 (CC). For a discussion of this case see Venter R
“Motions of no confidence: parliament’s executive check and checkmate” 2014 TSAR 407–
418 and for a discussion of the rules that the National Assembly created following this judg-
ment, see Venter R “The new parliamentary rule on motions of no confidence: an exercise in
legislative incompetence or judicial mockery?” 2015 TSAR 395–404.
145 2017 8 BCLR 1061 (CC), 2017 5 SA 300 (CC).
146 S 50(1).
discretion to the head of state a dissolution of parliament for political purposes.
147
Thus parliament does not really have a fixed term.
After the dissolution of parliament, or at the expiry of its term, an election for the
National Assembly must be held within 90 days.148 If the result of the election is not
declared as prescribed, or is set aside by the court, a new election must be held within
149
a further period of 90 days. Despite a dissolution, the President may convene par-
liament for urgent business, and parliament and its members remain competent to
150
perform their functions. This ensures that the country is never without a parlia-
ment and that urgent matters can be attended to even during elections.
2.4 Powers
The highest legislative authority in the state vests in the South African parliament, but
parliament is subject to the Constitution as supreme law.
Parliament derives its legislative authority entirely from the Constitution. Section 44
provides that parliament has the power to:
• amend the Constitution;
• pass legislation with regard to any matter, including those matters over which it
shares concurrent legislative authority with the provinces and excluding matters
151
over which the provinces have exclusive authority; and
• assign its legislative authority, except its power to amend the Constitution, to
legislatures in other spheres of government.
Parliament may also adopt legislation on a matter that is reasonably necessary for,
152
or incidental to, the effective exercise of a power concerning a concurrent matter.
Parliament may also make laws on exclusive provincial matters under certain excep-
153
tional circumstances. The legislative authority of the National Assembly and the Na-
tional Council of Provinces is set out separately in section 44 because their
154
involvement in and powers with regard to the legislative function differ. This is un-
necessary, because their participation in the legislative function is, in any case, ex-
155
plained fully elsewhere in the Constitution. Parliament is also expressly empowered,
________________________
147 Obviously, the President will be unable to exercise this power to escape resignation when
parliament adopts a motion of no-confidence in the government. Parliament will not grant
the necessary approval for a dissolution if it has adopted a motion of no-confidence in the
President and if it is able to elect another President within the deadline of 30 days.
148 S 49(2).
149 S 49(3).
150 Ss 42(5) and 49(4).
151 See schedules 4 and 5. Under certain circumstances parliament is, as mentioned, entitled to
intervene in exclusive provincial matters – s 44(2). See ch 11 para 2.3.2.2. The power to make
laws on matters not mentioned in the schedules, or elsewhere in the Constitution, is some-
times called the residual legislative competence of parliament (Currie I and De Waal J The New
Constitutional and Administrative Law Vol I Constitutional Law (2001) 164).
152 In other words a matter in schedule 4 – see s 44(3).
153 See ch 11 para 2.3.2.2. See eg Ex parte President of the RSA: In re: Constitutionality of the Liquor
Bill 2000 1 BCLR 1 (CC), 2000 1 SA 732 (CC) and the discussion of the case by Malherbe R
“The role of the Constitutional Court in the development of provincial autonomy” 2001 SA
Public Law 255 276–278.
154 S 44(1)(a) and (b).
155 See para 2.5.7.5. See also s 42(2) where it is stated unnecessarily: “The National Assembly and
the National Council of Provinces participate in the legislative process in the manner set out
in the Constitution.”
in exercising its legislative authority, to initiate, consider, pass, amend and reject legis-
156
lation.
There are limits to the extent to which parliament may delegate its legislative au-
thority, especially when it is delegated to the executive.157 In the Western Cape case the
Constitutional Court held that the delegation of subordinate legislative authority to
the executive was necessary in a modern state and that it was not prohibited by the
Constitution. However, there is a difference between the delegation of subordinate
legislative authority and the delegation of plenary legislative authority to amend the
very law under which the delegation is made. The latter is inconsistent with the
provisions of the Constitution, which include the separation of powers and the
158
provisions regarding the procedures in terms of which laws must be adopted.
Section 2 of the Constitution provides that the Constitution is the supreme law of
159
the Republic. Section 44(4) provides accordingly that in the exercise of its legisla-
tive authority, parliament is subject to the Constitution, and that it must act in
accordance with and within the parameters of the Constitution. This express subjec-
tion of parliament to the Constitution terminated the so-called sovereignty of parlia-
ment. Before 1994, South African constitutions always provided that parliament was
160
sovereign, which, in general terms, meant that parliament was the supreme au-
thority and subject to nobody.161 Constitutional supremacy has put an end to this
power of parliament.
2.5 Functioning
2.5.1 The session 108
2.5.2 Sittings 108
2.5.3 Privileges 109
2.5.4 Presiding officers and other office-holders 111
2.5.5 Procedure 111
2.5.6 Instruments of procedure 113
2.5.7 The South African legislative process 118
Before the discussion of the legislative procedure followed by the South African
parliament, attention is briefly paid to the meaning of certain of the most important
concepts and instruments of the functioning of parliament.
________________________
156 Ss 55 and 68. The power of the National Assembly to prepare and initiate legislation (exclud-
ing money bills) under s 55(1)(b) of the Constitution empowers individual members of the
house “to sponsor or pilot” legislative proposals – Oriani-Ambrosini v Sisulu 2013 1 BCLR 14
(CC), 2012 6 SA 588 (CC) para 51.
157 Swart GJ “Constitutional limitations on the delegation of powers of taxation” 1996 SA Public Law
446.
158 Executive Council, Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC), 1995
4 SA 877 (CC) paras 51 and 61–65. See also Freedman W “Fact or fiction: non-delegation lim-
its on Parliament’s authority to delegate subordinate regulatory authority?” 2007 THRHR
166–174. See ch 6 para 3.1 on the separation of powers.
159 S 2.
160 S 30 of the 1983 Constitution referred, eg, to the State President and parliament as the
“sovereign legislative authority in and over the Republic”.
161 See Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 142–143 for a discussion of
the pre-1994 South African debates on sovereignty.
2.5.1 The session
A session of parliament is the period or periods during the year when parliament is
162
summoned as prescribed for the dispatch of business. The South African parlia-
ment has a continuous session.
In the Westminster system a strong convention exists that the head of state must
163
summon parliament for a session at least once a year. The South African parlia-
164
ment is one of a few with a continuous session. Sections 51 and 63 provide that the
National Assembly and the National Council of Provinces may each determine the
time and duration of its own sittings. The two houses are in session from their first
165
sittings after an election, until they are dissolved for the following election.
2.5.2 Sittings
A sitting is a daily or shorter meeting of parliament when the members of parliament
are assembled.
Parliaments determine their own sittings, and times and hours of sitting, and may by
166
resolution depart from those determinations. At sittings, parliaments perform
their functions. The joint rules of the South African houses of parliament167 provides
for joint sittings of the houses. No express provision for joint sittings is made in the
South African Constitution, but the joint rules of the houses provide for joint sit-
168
tings. The seat of parliament is Cape Town, but sittings of parliament may take
place elsewhere on the grounds of public interest, security or convenience, and if
provided for in the rules.169 The seat of parliament may be moved by law, but a
majority of the total number of members of the National Assembly must support the
bill.170 The Constitution provides that the houses must conduct their business in an
open manner and that sittings of the houses and committees are held in public.171
Sections 59(a) and 72(a) further provide that each house must facilitate public
________________________
162 Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU) 293; Wilding N
and Laundy P An Encyclopedia of Parliament (1972) 689.
163 De Smith SA Constitutional and Administrative Law (1979) 231. Brazier R Constitutional Practice
(1991) 163.
164 See Malherbe EFJ “Sessies van die parlement: ’n uitgediende fiksie” 1992 SA Public Law 194,
and for a more extensive exposition, Malherbe EFJ Die Wetgewende Prosedure van die Parlement
(1991 thesis RAU) 294 ff.
165 The first sitting after an election must be convened by the Chief Justice within fourteen days of
the election – s 51(1).
166 See r 23 of the Rules of the National Assembly and r 18 ff of the Rules of the National Coun-
cil of Provinces. For an extensive discussion on all matters relating to sittings, see Rautenbach
IM and Malherbe EFJ Constitutional Law (2009) 145–146.
167 Adopted in terms of s 45.
168 When the President addresses parliament or convenes parliament for special business, and
when parliament convenes in the case of a state of national defence – rule 7(1) of the Joint
Rules.
169 Ss 51(3) and 63(3).
170 Ss 42(6) and 76(5).
171 Ss 59 and 72. R 47 of the Joint Rules provides that a committee meeting may be closed if a
private matter is considered that is prejudicial to a particular person, a matter of parliamen-
tary privilege or of a confidential nature is considered, or if the confidential consideration of
a matter is justified in an open and democratic society. R 52 provides that documents of a
committee are open unless they relate to a matter referred to in r 47.
involvement in the legislative and other processes of the houses and their commit-
172
tees.
2.5.3 Privileges
Parliamentary privileges are the powers and privileges enjoyed by parliament and its
173
members in order for them to perform their functions unhindered.
Privileges developed to protect the British parliament against interference by the
monarch, which sometimes even included the physical apprehension of members.174
The purpose of parliamentary privileges is thus the protection of parliament and its
members from outside interference. The enforcement of these privileges ensures
that members are available at all times for the performance of parliamentary func-
175
tions.
The privileges of the South African parliament are constitutionally authorised and
the particulars regulated by the Powers, Privileges and Immunities of Parliament
and Provincial Legislatures Act.176 Some of the most important aspects in the act
have been provided for in the Constitution:177
• The houses are competent to regulate and control their internal affairs and each
house may make its own rules of procedure.178
• Subject to internal rules of debate (for example, the prohibition of offensive or
unbecoming language), members of parliament may say anything in parliament.
Members of parliament are not liable to any civil or criminal proceedings on ac-
179
count of anything they have said in, or submitted to, parliament.
• Parliament and its committees are competent to summon persons to give evi-
dence and submit documents.180
In addition, the Powers, Privileges and Immunities of Parliament and Provincial
Legislatures Act provides for the following:
• The speaker of the National Assembly and the chairperson of the National Council
of Provinces control the premises of parliament and, except in emergency cases,
members of the security forces may enter the premises only with the permission
181
of the speaker or chairperson.
• Nobody may improperly interfere with the performance of the functions of
parliament or a member, or may assault, threaten or obstruct a member going to
or leaving parliament. Nobody may by fraud or intimidation influence a member
________________________
172 Laws may be declared invalid if insufficient provision is made for public involvement – Doctors
for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC), 2006 6 SA 416
(CC). See the discussion of the legislative process – para 2.5.7.5.
173 See the preamble to the Powers, Privileges and Immunities of Parliament and Provincial
Legislatures Act 4 of 2004.
174 Munro CR Studies in Constitutional Law (1987) 134–135.
175 See Malherbe EFJ “Parlementêre privilegies en menseregte” 1991 TSAR 330.
176 Act 4 of 2004.
177 Other privileges may be added by law (ss 58(2) and 71(2)).
178 Ss 57(1) and 70(1).
179 Ss 58(1) and 71(1). See also s 22 of Act 4 of 2004. For a discussion of the role that freedom of
expression plays within the legislative authority, see Venter, R “The role of freedom of ex-
pression in a democratic system (part 1)” 2018 TSAR 52–87.
180 Ss 56 and 69.
181 Ss 3 and 4 of Act 4 of 2004. Summonses and court orders may be served on the premises only
with the permission of the speaker or chairperson (s 5).
in the performance of the member’s functions, and a member may not ask for or
receive any fee, compensation, gift, reward, favour or benefit for the purposes of
voting or acting in a certain way.182
• Parliament is competent to take disciplinary action against a member who is in
183
any way in contempt of parliament. Examples of contempt are disorderliness,
improper interference with the functions of parliament, bribery, and unauthor-
ised publication of information.184 The punishment that parliament may impose
on a member varies from a warning to withholding of privileges, a fine, or sus-
pension for a maximum of 30 days. In addition, parliament may refer the matter
185
to the prosecuting authority.
• For the protection of parliament’s authority and dignity, the Act also contains
provisions on the publication of the proceedings of parliament.186
Reference must also be made to the code of conduct for members of parliament
which forms part of the joint rules of parliament.187 The code of conduct contains
full directives on the disclosure of the financial and other private interests of mem-
bers and the penalties that can be imposed when the code is breached.
The privileges of parliament are subject to the Constitution. In De Lille v Speaker of
the National Assembly parliament found a member guilty of contempt and suspended
188
her for 15 days. The court stated that parliament was subject to the Constitution in
respect of all its actions, including its privileges, and that it may not be exercised
inconsistently with the Constitution.189 As parliament did not comply with the rules
of natural justice during the proceedings, and the limitation which the punishment
imposed on the member’s freedom of expression went too far and could not be
justified in terms of the general limitation clause, the conviction and punishment of
190
the member was set aside. In its confirmation of the judgment, the Supreme Court
of Appeal added that parliament did not have the authority to suspend a member
191
for what was said in parliament.
________________________
182 Ss 7 and 8. A member may not without the permission of the House in question give evidence
in court on information serving before Parliament, and a member may be absolved from giv-
ing evidence before a court until the completion of the member’s business in Parliament (ss
9 and 10). When a court sentences a member for a criminal offence to imprisonment of at
least 12 months without the option of a fine, the speaker or chairperson must be informed in
writing (s 24).
183 Ss 12 and 13. Previously, Parliament was regarded as a court that could punish any contempt
by a member or a member of the public. Such a view was inconsistent with the separation of
powers. See Mutasa v Makombe 1997 6 BCLR 841 (ZS) in which it was held that Parliament’s
disciplinary authority was a sui generis function with which the court would interfere only if
Parliament acted inconsistently with the Constitution. See also the De Lille case referred to be-
low.
184 S 13.
185 S 12(5)–(11). See also s 12(4) and (6).
186 S 18–21.
187 See the schedule to the Joint Rules of Parliament.
188 1998 7 BCLR 916 (C), 1998 3 SA 430 (C).
189 Paras 25 and 34.
190 See the full discussion of the judgment by Malherbe EFJ “Parlementêre voorreg en grondwet-
like oppergesag: ’n bastion buig” 1999 TSAR 145.
191 Speaker of the National Assembly v De Lille 1999 11 BCLR 1339 (SCA), 1999 4 SA 863 (SCA)
para 30.
2.5.4 Presiding officers and other office-holders
In most cases, parliaments elect their own presiding officer(s) to chair meetings, main-
tain order, apply rules of procedure, and ensure that proceedings take place fairly and
192
impartially and that the rights of members are protected.
In South Africa, the speaker and deputy speaker of the National Assembly, and the
chairperson and deputy chairpersons of the National Council of Provinces, are
elected by a majority vote by each house.193 Each presiding officer in the National
Assembly has a casting vote in the event of an equality of votes, but has no ordinary
or deliberative vote, unless a two-thirds majority is required.194 In the National Coun-
cil of Provinces, the chairperson has a casting vote only when members vote individ-
195
ually. It was also held that in an appropriate case a speaker may be authorised by
law to make regulations and to determine the date upon which a law comes into
196
effect. Other office-holders in parliament include the leader of the house, who is
the leader of government business in the National Assembly and acts as liaison
197 198
between the Assembly and cabinet, the leader of the official opposition, the
199
chairperson of committees, and the whips of the parties who maintain discipline
within their respective parties and perform other organisational functions.200
2.5.5 Procedure
Parliamentary procedures refer to the steps for the performance of a valid parlia-
201
mentary action according to internal or statutory requirements.
________________________
192 For a full discussion, see Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 150–
151. See also Franks CES The Parliament of Canada (1987) 120–121; Malherbe EFJ “Die
grondslae van parlementêre prosedure” 1991 TSAR 434 ff.
193 Ss 52 and 64. For a useful overview of the office of the speaker, see Tlouamma v Mbete, Speaker
of the National Assembly 2016 2 BCLR 242 (WCC) paras 75–82.
194 S 53(2). In the case of the Twelfth Amendment to the Constitution, dealing with boundary
changes between KwaZulu-Natal and Eastern Cape, the deputy speaker cast a deliberative as
well as a deciding vote to pass the bill – see Matatiele Municipality v President of the RSA 2006 5
BCLR 622 (CC), 2006 5 SA 47 (CC) para 24. Nothing is said in s 53(2) about s 1, which must
be amended by a 75% majority (s 74(1)).
195 S 75(2). See the discussion in para 2.5.6.3.
196 In re: Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1 SA
447 (CC).
197 S 91(4).
198 In terms of s 57(2)(d) the rules of the National Assembly must provide for the recognition of
the leader of the largest opposition party in the Assembly as the Leader of the Opposition
(see r 21). This title may not be conferred on the leader of a minority party that forms part of
the government. Such a party cannot be regarded as an opposition party.
199 R 224 of the Rules of the National Assembly.
200 R 217–221.
201 For a more extensive analysis see Rautenbach IM and Malherbe EFJ Constitutional Law (2009)
150–151. See also Malherbe EFJ “Die regsaard van parlementêre prosedure: ’n hedendaagse
perspektief” 1992 TSAR 64–65. In King v Attorneys Fidelity Fund Board of Control 2006 4 BCLR
462 (SCA), 2006 1 SA 474 (SCA) para 18, the Supreme Court of Appeal distinguished be-
tween Parliament’s non-compliance with constitutional procedures and with other constitu-
tional duties. According to the court, the former does not constitute non-compliance with a
constitutional duty; Parliament simply did not act. This is the kind of argument advanced
under a system of parliamentary sovereignty to justify judicial review of parliamentary acts. It
is doubtful whether such an argument can be upheld. After all, it still means that a constitu-
tional duty to follow a certain procedure has not been complied with. This has been con-
firmed in Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399
(CC), 2006 6 SA 416 (CC).
The sources of parliamentary procedure are:
• the standing orders; in other words, the rules that parliament adopts in terms of its
power to determine its own procedures;202
• customs that have developed over the years;
• decisions which the speaker and other presiding officers give in their application
of the rules; and
• legislation, including the Constitution.203
Sections 57(1) and 70(1) of the Constitution authorise each house separately to
adopt rules of procedure, with due regard to representative and participatory de-
mocracy, accountability, openness and public involvement. Section 45 also authoris-
es the houses to make joint rules and provides that a joint rules committee must be
established to make rules for the joint business of the houses.204 This must include
rules with regard to facilitating the legislative process, joint committees on bills and
a joint committee for the regular revision of the Constitution.205
Due to the tendency in modern states to include extensive procedural provisions
in laws, particularly in the constitution, legislation is becoming an increasingly im-
portant source of procedure.206
The British courts traditionally have not enforced the rules of procedure of par-
liament because the rules have not been regarded as rules of law. Under this ap-
proach, the British courts accept at face value the validity of an act of parliament
and do not inquire into the internal proceedings of parliament in order to deter-
mine whether parliament has complied with its own rules of procedure. This is the so-
207
called enrolled bill rule. This approach is not tenable in South Africa where the
Constitution is supreme and all other legislation and action must comply with the
208
Constitution.
The rules contained in the standing orders may not be inconsistent with the provi-
209
sions of the Constitution or any other law of parliament.
________________________
202 See the Rules of the National Assembly (2005), Rules of the National Council of Provinces
(November 2005), and Joint Rules of Parliament (2005).
203 Erskine May Parliamentary Practice (1989) 2. See also Rosetti MM “Sources of parliamentary proce-
dure” 1964 Constitutional and Parliamentary Information 15 ff. The term “orders” refers to resolutions
by parliament dealing with procedural matters. In modern parliaments with extensive standing
rules, such “orders” are much less.
204 R 53 ff of the Joint Rules.
205 For a discussion of the relationship between the different sets of rules, see Rautenbach IM
and Malherbe EFJ Constitutional Law (2009) 152.
206 See Malherbe EFJ “Die regsaard van parlementêre prosedure: ’n hedendaagse perspektief”
1992 TSAR 64–65.
207 See eg Edinburgh and Dalkeith Railway Co v Wauchope 8 Cl and F 710; 8 ER 279 (HL) (1842).
208 See the full discussion by Malherbe EFJ “Die regsaard van parlementêre prosedure: ’n heden-
daagse perspektief” 1992 TSAR 68 ff. See De Lille v Speaker of the National Assembly where the
court held that parliament is subject to the Constitution in respect of all its actions, including
its internal proceedings (1998 7 BCLR 916 (C), 1998 3 SA 430 (C) paras 25 and 33; Speaker of
the National Assembly v De Lille 1999 11 BCLR 1339 (SCA), 1999 4 SA 863 (SCA)). See also the
Doctors for Life decision 2006 12 BCLR 1399 (CC), 2006 6 SA 416 (CC) in which certain laws
were declared invalid because constitutional procedures were not complied with, and
Matatiele Municipality v President of the RSA 2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC).
209 Examples are quorum requirements and voting (s 53), public access to parliament (ss 59 and
72) and the proceedings on various types of bills (ss 73–78).
The Constitutional Court has applied this principle in several cases. (a) The
Constitutional Court held that the Rules of the National Assembly were inconsistent
with section 102(2) of the Constitution (providing for motions of no-confidence in
the President) to the extent that it failed to make provision for intitiaves by a
member of the Assembly, acting alone or in concert with other members, to initiate
and vote on motions of no-confidence in the President.210 (b) The Constitutional
Court invalidated several Rules of the National Assembly concerning the initiation,
preparation and introduction of bills because they did not provide for the exercise
of the powers to prepare and initiate bills by individual members of the Assembly.211
(c) The Constitutional Court invalidated the failure of the National Assembly to
adopt rules regulating the procedure for the removal of a President under section
89(1) of the Constitution.212
Even if the validity of rules and standing orders is not challenged, the validity of
decisions of presiding officers when they act under those rules may be reviewed by
the courts.
The Supreme Court of Appeal invalidated an order of the chairperson of the Na-
tional Council of Provinces that a member of parliament must leave the house
because he made an unparliamentary remark. The court held that the chairperson
misinterpreted the rule, and that even if she had not done so, she unlawfully limited
the member’s right to freedom of speech in parliament under section 58(1) of the
Constitution.213
2.5.6 Instruments of procedure214

2.5.6.1 Debate 113
2.5.6.2 Proposals and amendments 114
2.5.6.3 Decision-making and quorums 114
2.5.6.4 Questions 115
2.5.6.5 Order papers 115
2.5.6.6 Committees 115
2.5.6.7 Public participation in legislative procedures 117
Parliaments make use of various instruments of procedure to perform their functions.
2.5.6.1 Debate
Debate is the focal point around which parliamentary procedure revolves.
Supported by the other instruments of procedure, it is through debate that
proceedings take their course towards the objective of determining the will of
parliament by the taking of a decision.215
________________________
210 Mazibuko v Sisulu 2013 11 BCLR 1297 (CC), 2103 4 SA 243 (CC). In Tlouamma v Mbete, Speaker
of the National Assembly 2016 2 BCLR 242 (WCC) a constitutional challenge to the new rule
adopted by the National Assembly to cure the defect identified in the Mazibuko case was un-
successful.
211 Oriani-Ambrosini v Sisulu 2013 1 BCLR 14 (CC), 2012 6 SA 588 (CC).
212 Economic Freedom Fighters v Speaker of the National Assembly 2018 3 BCLR 259 (CC), 2018 2 SA
571 (CC) paras 212–217.
213 Chairperson of the National Council of Provinces v Malema 2016 5 SA 335 (SCA) paras 16, 25.
214 For a more extensive discussion of topic covered in para 2.5.6, see Rautenbach IM and
Malherbe EFJ Constitutional Law (2009)152–162.
215 Mahler GS The Knesset: Parliament in the Israeli Political System (1981) 94; Malherbe EFJ Die
Wetgewende Prosedure van die Parlement (1991 thesis RAU) 320).
2.5.6.2 Proposals and amendments
Proposals are draft resolutions as parliament takes decisions on the basis of proposals
or motions that are introduced.
An amendment is a proposal for the amendment of a motion under consideration
without changing the subject.216
2.5.6.3 Decision-making and quorums

A decision (resolution) is the determination of the view of the majority in parliament
217
in a clear, lawful and authoritative manner.
Different requirements may be set in this regard.
• A decision taken by a simple majority means a decision taken by a majority of the
members present that constitutes a quorum.
• A clear or absolute majority means a majority of the total number of members of
218
that parliament.
• A special majority means an increased majority of the total number of members,
for example three-fifths, two-thirds or three-quarters. Different majorities for dif-
219
ferent types of decisions are often required. Special majorities are required for
220
constitutional amendments in particular.
All of these requirements apply to decision-making in the South African National
221
Assembly.
Decision-making is related to the quorum requirement.
A quorum is the prescribed minimum number of members necessary for parliament
222
to be competent to perform its functions.
In the South African National Assembly there is no quorum for debate. For a vote on a
bill the quorum is one half and for any other resolution it is one third of the total
223
number of members.
Parliaments take their decisions in different ways. Provision exists for viva voce
votes,224 raising hands, divisions (where members physically divide according to their
preferences), voting with ballot papers, and electronic voting.225 In most parliaments,
a motion is regarded as rejected when an equality of votes occurs, but in
________________________
216 See eg Robert HM Parliamentary Law (1975) 18.

217 Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU) 329.
218 In In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA
744 (CC) para 163 the Constitutional Court incorrectly described it as a simple majority.
219 Inter-Parliamentary Union I Parliaments of the World (1986) 518.
220 See para 2.5.7.6.
221 See r 75–93 of the Rules of the National Assembly. For a summary, see Rautenbach IM and
Malherbe EFJ Constitutional Law (2009) 154.
222 Wilding N and Laundy P An Encyclopedia of Parliament (1972) 630–631; Luce R “The quorum”
in Bosmajian (ed) Readings in Parliamentary Procedure (1986) 111; Lewin A The Law, Procedure and
Conduct of Meetings (1985) 29.
223 S 53. That does not include the presiding officer. Resolutions requiring an absolute majority,
like a motion of no-confidence (s 102), obviously overrule this quorum requirement.
224 Especially in English-speaking countries.
225 Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU) 332 ff discusses the
various possibilities.
Westminster-orientated parliaments, including South Africa, the presiding officer
226
has a casting vote.
2.5.6.4 Questions
Questions that members put to ministers is a significant way in which parliament
227
controls the executive authority.
2.5.6.5 Order papers
The order paper is the official agenda of parliament in terms of which a prescribed,
or agreed, sequence for the dispatch of business is laid down, and which may be
departed from only by resolution of parliament.
2.5.6.6 Committees
A parliamentary committee is a substructure of parliament consisting of a group of
members of parliament who are chosen to perform a particular task for parliament
228
and, in so doing, facilitate the effective performance of parliament’s functions.
Committees are charged on behalf of parliament to conduct inquiries, gather evi-
dence and report thereon, analyse (and sometimes initiate) bills, and propose
amendments. They also act as a control mechanism by supervising government
actions and take charge of the internal affairs of parliament, for example, in respect
of facilities and services, discipline, and cases of contempt. In this way, committees
alleviate the workload of parliament and facilitate thorough consideration of mat-
ters.229
The following are general features of committees:230
• Committees are subject to parliament and their appointment and dissolution vest
in parliament.
• Committees may be permanent or temporary. A permanent (standing) commit-
tee is appointed for a fixed period, usually the duration of parliament, to per-
form a continuing task. A temporary (ad hoc) committee is appointed for a single
assignment after the completion of which it dissolves.
________________________
226 Inter-Parliamentary Union I Parliaments of the World (1986) 316 ff. See para 2.5.4. Traditional-
ly, this competency is exercised in a manner which does not finalise a matter, but provides an
opportunity for further consideration (Erskine May Parliamentary Practice (1989) 351). See also
United Democratic Movement v Speaker of the National Assembly 2017 8 BCLR 1061 (CC), 2017 5
SA 300 (CC) for the Constitutional Court’s decision on secret voting in parliament on mo-
tions of no-confidence.
227 See ch 9 para 8.2. See on the current state of affairs in Britain Hough B “Ministerial respons-
es to parliamentary questions: some recent concerns” 2003 Public Law 211.
228 Malherbe EFJ “Komitees van die driekamerparlement” 1986 THRHR 1, 2. See also Shaw M
“Conclusion” in Lees JD and Shaw M (eds) Committees in Legislatures: A Comparative Analysis
(1979) 420.
229 See Shakdher SL “The system of parliamentary committees” 1973 Constitutional and Parliamen-
tary Information 46. Malherbe also mentions other advantages of committees, namely expediting
business, increasing the involvement of members and the development of their skills, improve-
ment of communication between parliament, the administration and the public, and promo-
tion of the bargaining and conflict regulation process. See the full discussion by Malherbe EFJ
“Komitees van die driekamerparlement” 1986 THRHR 114–18.
230 See Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU) 358 ff in
particular.
• Committees consist of members of parliament and are composed according to
the principle of proportional representation of the political parties in parliament.
• Committees normally consist of members of one house only, but sometimes joint
committees of both houses of a parliament are appointed for a specific purpose.231
• In principle, committees, as subordinate bodies, have limited powers. Sometimes,
committees have wide powers, however, to conduct inquiries and hold public
hearings on their own discretion and even, as in Italy, to finalise legislation.232
• Committees normally function according to rules of procedure less formal than
those of parliament. Committees may meet in public or in camera.
For the sake of greater openness and public involvement in parliamentary proceed-
ings, committees meet in public. The public may be excluded only if it is reasonable
and justifiable in an open and democratic society.233
234
The Rules of Parliament provide for various types of committees:
(a) Ad hoc committees of each house are committees appointed by a house to execute par-
235
ticular assignments, after which such committees dissolve. Each committee is ap-
pointed by resolution and normally composed in such a way that, in principle, all
political parties in the house are represented on it in accordance with their propor-
236
tional strength in the house.
(b) Standing committees of each house are composed in the same manner and function in
237
more or less the same way, but exist for the duration of parliament. In the National
238
Assembly there is a standing committee for every portfolio in the cabinet. The pri-
mary function of these portfolio committees is the consideration of all bills in the rele-
vant areas, but they must also maintain oversight of the executive and may perform
239
other functions assigned to them.
(c) Joint ad hoc committees are appointed whenever, in terms of the Constitution, a mat-
ter has to be referred to a joint committee, or whenever the houses decide to appoint
240
such a committee, and consist of members of both houses.
________________________
231 The extensive system of permanent joint committees consisting of members of all three
houses of the previous South African parliament was a unique phenomenon – Rautenbach
IM and Malherbe EFJ “Die grondwet 1984–1989” 1989 TSAR 491 ff.
232 Cosentino F “Parliamentary committees in the Italian parliamentary system” 1967 Constitu-
tional and Parliamentary Information 3; D’Onofrio F “Committees in the Italian parliament” in
Lees JD and Shaw M (eds) Committees in Legislatures: A Comparative Analysis (1979) 61.
233 Ss 59(1)(b) and (2) and 72(1)(b) and (2). See r 52 of the Joint Rules.
234 See the Rules of the National Assembly (2005), Rules of the National Council of Provinces
(November 2005), Joint Rules of Parliament (2005). The terminology is somewhat confusing
and an attempt is made below to explain the committee system systematically. The perfor-
mance of committees is analysed and evaluated in Murray C and Nijzink L Building Representative
Democracy: South Africa’s Legislatures and the Constitution (2002) 59 ff.
235 R 214 of the Rules of the National Assembly. Such a committee may be authorised to func-
tion while the house is not sitting.
236 If a party has too few members to be represented on all committees, the leader usually
indicates on which committees that party wishes to serve. All parties are not necessarily enti-
tled to serve on all committees – r 125(1).
237 R 51. See in general on the role of standing committees in parliament, the contributions in
Kotzé H (ed) Parliamentary Dynamics: Understanding Political Life in the South African Parliament
(1996) 111 ff.
238 R 199.
239 R 201(1). See on the oversight function of parliament s 55(2).
240 R 138 of the Joint Rules.
(d) Joint standing committees function like joint ad hoc committees, but exist for the du-
241
ration of parliament.
The rules of the National Assembly also provide for so-called appropriation commit-
tees and extended public committees. Strictly speaking, they are not committees, but
sections of the house that may consider and dispose of a matter on behalf of the
house. An appropriation committee is appointed to discuss and approve a particular
242
vote (in other words, a subdivision of an appropriation bill). The members of the
relevant portfolio committee under which that vote falls, as well as all members of the
house attending, form the appropriation committee. An extended public committee is
243
similarly composed and performs the same function, but in respect of ordinary bills.
These types of committees both meet in public.
2.5.6.7 Public participation in legislative procedures

The Constitution provides that both houses of parliament must facilitate public
244
involvement in their legislative and other processes and their committees.
The requirement of public involvement also applies to procedures concerning the
amendment of the Constitution.245
Non-compliance with this requirement means that the legislation involved, is invalid.
The procedures of parliament should give further effect to this innovation, for
example by providing more opportunities to give evidence before committees.246
In Doctors for Life International v Speaker of the National Assembly non-compliance with this
247
duty led to the invalidity of certain laws. Although the National Assembly held public
hearings on four section 76-bills, the National Council of Provinces, with the expecta-
tion that the provincial legislatures would do so, referred the bills without holding
public hearings to those legislatures for the conferral of mandates on their delegations
248
in the Council. However, most provincial legislatures also failed to hold hearings or
promote public involvement in any other way. The court held that in the case of two
bills the Council failed to fulfil the duty imposed by section 72(1)(a), and declared
those acts invalid. This decision strengthens open and democratic government, en-
courages public interest in the legislative process, and enhances the legitimacy of deci-
249
sion-making.
Also relevant is the lobbying done by members of the public and interest groups
during the parliamentary process. All over the world, lobbyists exert tremendous
________________________
241 R 65(1).
242 R 35–39 of the Rules of the National Assembly.
243 R 31–34.
244 Ss 59(1)(a) and 72(1)(a).
245 See Merafong Demarcation Forum v President of the RSA 2008 10 BCLR (CC), 2008 5 SA 171
(CC); Poverty Alliance v President of the RSA 2010 6 BCLR 520 (CC); Moutse Demarcation Forum v
President of the RSA 2011 11 BCLR 1158 (CC); para 2.5.7.6 (v) below. For a discussion of these
cases, see Raboshakga N “Towards participatory democracy, or not: the reasonableness ap-
proach in public involvement cases” 2015 SAJHR 4-29.
246 See Malherbe EFJ “Publisiteit en openbare deelname aan die wetgewende proses: ’n nuwe
benadering” 1995 SA Public Law 394 and his discussion of the rules of the Gauteng provincial
legislature. See also r 6 of the Joint Rules of Parliament which provides that the public may
attend joint sittings of the houses and meetings of joint committees, comment in writing on
bills, and give evidence before committees.
247 2006 12 BCLR 1399 (CC), 2006 6 SA 416 (CC).
248 S 65(2) – see below.
249 See the comments by Malherbe R “Openbare betrokkenheid by die wetgewende proses kry
oplaas tande” 2007 TSAR 594 605. See also Matatiele Municipality v President of the RSA 2007 1
BCLR 47 (CC), 2007 6 SA 477 (CC).
pressure on individual members of parliament and in different parliamentary fora,
such as committees, in order to influence the content of legislation. In several
countries lobbying is regulated by law in order to eliminate corruption, and in view
of the increase in lobbying, similar legislation has probably become necessary in
250
South Africa as well.
251
2.5.7 The South African legislative process
2.5.7.1 General 118
2.5.7.2 Ordinary bills 119
2.5.7.3 Money bills 121
2.5.7.4 Disagreements 123
2.5.7.5 Assent 125
2.5.7.6 Judicial control over bills 127
2.5.7.7 Amendment of the Constitution: Entrenchments 127
2.5.7.1 General
The parliamentary procedure for the adoption of legislation are different in respect
of different kinds of legislation. The Constitution distinguishes between the follow-
ing:
(i) Constitutional amendments. The Constitution is entrenched and there are special
252
procedures for its amendment.
(ii) Ordinary bills that affect the provinces – the so-called section 76 bills. These are bills
that deal with matters on which the provinces enjoy concurrent legislative authority,
or that otherwise affect the provinces or the National Council of Provinces.253
(iii) Ordinary bills that do not affect the provinces – the so-called section 75 bills. These are
254
all bills that are not constitutional amendments, money bills, or section 76 bills.
(iv) Mixed section 75/section 76 bills. These are bills of which some provisions can be
classified under section 75 and some under section 76. These bills are considered
according to an adapted section 76 procedure.255
(v) Money bills. Money bills deal with raising and appropriating public funds, and
256
are considered according to a different procedure than ordinary bills.
________________________
250 See Bekker JC “What’s new in the new Parliament?” in Carpenter G (ed) Suprema Lex: Essays
on the Constitution presented to Marinus Wiechers (1998) 237 243–244.
251 See Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 160–164 for a discussion of
general features of all legislative processes.
252 S 74 of the Constitution. See the discussion in para 2.5.7.6.
253 The procedure for the adoption of these bills is explained in s 76 of the Constitution. In
addition to bills on concurrent matters, the following bills must (according to s 76(3)(a)-(f))
also be considered in accordance with the procedures of s 76: Bills regulating the procedures
according to which provincial legislatures confer authority on their delegations in the Na-
tional Council of Provinces to vote on their behalf (s 65(2)); bills on organised local govern-
ment (s 163); bills on the Public Protector (s 182); bills on the public administration
(s 195(3)( and (4)); and bills on the public service commission and the public service (ss 196
and 197).
254 The procedure for the adoption of these bills is explained in s 75 of the Constitution.
255 Provision is made to split such bills in order to facilitate their consideration (r 163 of the
Joint Rules).
256 S 77(1) defines a money bill as follows: “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
A law that has been adopted according to the wrong procedures may be invalid.
Hence, a committee consisting of the speaker and deputy speaker of the National
Assembly and the chairperson and permanent deputy chairperson of the National
Council of Provinces has been established to classify all bills introduced in parlia-
257
ment and to determine the proper procedure for their consideration. The classifi-
cation committee must also determine whether a bill is constitutionally in order
from a procedural point of view and may declare a bill out of order. The committee
must also monitor and classify all amendments to bills that are considered in the
course of the parliamentary process.
In Tongoane v Minister for Agriculture and Land Affairs invalidated the Communal Land
Rights Act 11 of 2004 because it was passed according to the procedures for section 75
bills, but affected provinces should have been passed by following the procedures for
258
section 76 bills. The court explained that the classification must be done as follows:
“[A]ny Bill whose provisions substantially affect the interests of the provinces must be
enacted in accordance with the procedure stipulated in section 76. This naturally in-
cludes proposed legislation over which the provinces themselves have concurrent
power, but it goes further. It includes Bills providing for legislation envisaged in the
further provisions set out in section 76(3)(a) to (f), over which the provinces have no
legislative powers, as well as Bills the main substance of which falls within the exclusive
national competence, but the provisions of which substantially affect the provinces.”
2.5.7.2 Ordinary bills

(i) After a bill has been prepared by the relevant state department and approved by
259
the cabinet it is introduced in parliament. An ordinary bill is introduced in the
260
National Assembly, but an ordinary bill that affects the provinces (a section 76-
261
bill), may also be introduced in the National Council of Provinces. A member of
cabinet, a deputy minister, a member or a committee may introduce a bill in the
National Assembly. Only a member or a committee may introduce a bill in the
262
National Council of Provinces. Unless it may result in prejudice to the state or the
public, a draft of every bill, together with a memorandum explaining the objects of
the bill, must be submitted to the speaker and the chairperson of the National
Council of Provinces before introduction for referral to the relevant portfolio and
________________________
charges against the National Revenue Fund, except a Bill envisaged in section 214 authoris-
ing direct charges.”
257 R 151–158 and 160 ff of the Joint Rules. R 153(6) provides that if the classification commit-
tee, and thereafter the houses, cannot reach agreement on the procedures to be followed in
respect of a particular bill, the matter must be referred to the Constitutional Court for a deci-
sion. First, it is a question of whether the jurisdiction of the Court (which is meticulously de-
scribed in s 167 of the Constitution) can be extended by the Rules. Secondly, the power
comes down to a form of prior control, which is equally meticulously described in the Consti-
tution (ss 79 and 121). S 167(4)(b), dealing with prior control, significantly states: “Only the
Constitutional Court may decide on the constitutionality of any parliamentary or provincial
Bill, but may do so only in the circumstances anticipated in section 79 or 121.” (Italics added.)
258 2010 8 BCLR 741 (CC), 2010 6 SA 214 (CC) para 72. For a discussion of the judgment, see
Malherbe EFJ “Parlemetêre prosedure as demokratiese instrument: inagneming van provin-
siale standpunt in parlementêre besluitneming” 2010 TSAR 826. See also SAMWU v Minister of
Co-operative Governance and Traditional Affairs 2017 5 BCLR 641 (CC) paras 59–70.
259 Para 2.5.7.3. See with regard to the preparation of bills Malherbe EFJ Die Wetgewende Prosedure
van die Parlement (1991 thesis RAU) 275 ff; Malherbe EFJ “Publisiteit en openbare deelname
aan die wetgewende proses: ’n nuwe benadering” 1995 SA Public Law 407–408.
260 S 73(1).
261 S 73(3), read with s 76(3).
262 S 73(2) and (4).
select committees.263 The purpose is to enable the committees to plan their activities
ahead and to provide members the opportunity to prepare themselves.
(ii) The consideration of bills by parliament is chiefly regulated by the rules of
parliament. First, a bill, or an explanatory summary of it, is published for comment
before introduction.264 Then it is introduced by submitting it to the speaker or the
chairperson of the National Council of Provinces, as the case may be, together with a
memorandum explaining the purposes and financial implications of the bill. The
memorandum must also state the procedures in terms of which the bill will be
265
considered by parliament and a legal opinion in this regard must be included. A
copy of the bill is then furnished to every member of the house. The bill must with-
out delay be referred to the classification committee in order to determine the cor-
266
rect procedures for the consideration of the bill. At this point further action
depends on whether the house is currently sitting (in other words, convened):
• If the house is sitting, the bill is placed on the order paper for a first reading
267
debate. The member in charge of the bill may request to give an introductory
speech, and a member of every other party in the house may make a statement.268
No amendments are allowed in the debate. The bill is then regarded as having
been read a first time and the speaker (or chairperson) refers it to the relevant
committee.269
• If the house is not sitting, the speaker (or the chairperson) refers the bill to the
relevant portfolio committee, after which the bill is regarded as having been read
a first time.270 The bill must be distributed to members at least 14 days before the
first meeting of the committee.
(iii) The portfolio committee or select committee271 must allow the public the
opportunity to comment. The committee may enquire into the bill, consult the
member in charge of it or other committees, and may recommend to the house the
272
adoption or rejection of the bill. The committee may recommend any amend-
ment, probably including an amendment that affects the principle of the bill, but
may not without the permission of the classification committee propose an amend-
273
ment that affects the classification of the bill. Portfolio committees thus have
________________________
263 R 159 of the Joint Rules. A private members’ bill must be referred to the committee for
private members’ bills (r 234–237 of the Rules of the National Assembly). When a committee
initiates a bill, it must submit a memorandum and obtain the permission of the house to pro-
ceed with the bill (r 238–240). Permission requirements for individual members of the Na-
tional Assembly to prepare and initiate bills were invalidated in Oriani-Ambrosini v Sisulu 2013
1 BCLR 14 (CC), 2012 6 SA 588 (CC).
264 R 241.
265 R 243. The purpose of the memorandum is to explain the purpose and content of the bill in
accessible language in order for members to be better able to evaluate it, but in the past the-
se memoranda have been grossly neglected sometimes.
266 R 160–164 of the Joint Rules and r 244 of the Rules of the National Assembly.
267 R 247.
268 The member is limited to a speech of 15 minutes and the other members to a statement of
not more than three minutes (r 247(3)).
269 A bill can by resolution be referred to another committee or a joint committee (r 247(5)). A
bill introduced by a committee is not referred back to the committee and is put directly on
the order paper for the second reading debate (r 247(7)).
270 R 248. The bill may also be referred to another committee or to a joint committee.
271 The rules applicable to the consideration of a bill by a joint committee read the same (r 165 ff
of the Joint Rules).
272 R 249(3)(g).
273 R 249(3)(f).
274
extensive powers in respect of bills. If the committee does not approve a bill, it
must submit to the house the bill as referred to the committee. The report of the
committee must include the findings of the classification committee, as well as
275
minority views that have been raised in the committee.
(iv) The report of the committee is placed on the order paper for second reading,
but the second reading debate may not commence before at least three days have
elapsed since the report of the committee has been tabled.276 The second reading
debate is held in a plenary sitting of the house or in an extended public committee.
Only the purposes and principles of the bill may be discussed during this debate and
not the particulars.
(v) No motion on the principle is allowed during the debate (for example that the
bill be rejected), but amendments in connection with the detail of the bill may be
277
placed on the order paper before the conclusion of the debate. Such amend-
ments, which may not affect the principle of the bill nor change the classification of
the bill, are referred to the relevant portfolio committee after the conclusion of the
debate (but before any vote is taken). Only after the house has considered the
report of the committee on the amendments,278 does it vote on the second reading
279
of the bill and, if it agrees to it, the house has adopted the bill. A bill may be with-
drawn before approval at second reading.
280
(vi) In principle, both houses must adopt an ordinary bill and if, after adoption of
a bill by one house, the other must still consider it, the bill is referred to that house,
281
where the process is repeated in full. Before the National Council of Provinces
votes on a section 76 bill, it must be referred to the provincial legislatures for the
conferral of mandates on their delegates in the Council how to vote on the bill on
282
their behalf.
(vii) As soon as both houses have approved the second reading of a bill, it is re-
283
ferred to the President for assent. If the houses cannot reach agreement on the
bill, there is a disagreement which is dealt with as explained below.284
2.5.7.3 Money bills285

(i) In terms of the Constitution, a money bill may be introduced only by the minis-
286
ter of finance. Sometimes, other ministers also introduce bills in which levies are
287
imposed and, as such bills are then money bills in terms of the Constitution, such
________________________
274 See Rautenbach IM and Malherbe EFJ “Die grondwet 1984–1989” 1989 TSAR 491 ff on the
influence of committees on the content of bills.
275 See r 251(3) on all the information that the report of the committee must contain.
276 R 253(1).
277 R 254. Such amendments may not be moved in respect of a bill not approved by the commit-
tee (r 254(1)(b)).
278 Every amendment approved and rejected, must be mentioned in the report (r 255(1)).
279 R 253(4) and (5).
280 Ss 68(a) and 73(5).
281 S 73(5).
282 S 65(2). See Murray C and Nijzink L Building Representative Democracy: South Africa’s Legislatures and
the Constitution (2002) 50–52; Taljaard R and Venter A “Parliament” in Venter A and Landsberg
C Government and Politics in the New South Africa (2006) 17 29 explain how the activities of the
Council and the provincial legislatures are synchronised in order to achieve this.
283 See para 2.5.7.5 (d).
284 Para 2.5.7.5 (c).
285 See the definition of money bills in s 77(1).
286 S 73(2).
287 S 77(1). See para 2.5.7.2.
provisions should be introduced by the minister of finance in order to avoid the bills
being declared unconstitutional. In appropriation bills, a particular type of money
bill, parliament is requested to authorise the raising of taxes and the spending of
288
public funds by the executive. The preparation of the budget or estimates is a
painstaking process in which all departments are involved before the treasury final-
ises the budget and the cabinet approves it for introduction. In contrast to the
procedure for ordinary bills, the introduction and first reading of appropriation bills
does not take place merely by submitting them to the speaker or chairperson and by
their distribution. In the case of the main budget, the minister of finance delivers an
introductory speech (the annual budget speech) upon which the appropriation bill,
289
with schedules, is tabled. By implication, the budget cannot therefore be intro-
duced when parliament is not sitting, as in the case of ordinary bills. The budget
290
may be introduced only by the minister of finance and in the National Assembly.
(ii) After its introduction, the budget is referred directly to the portfolio committee
on finance.291 The committee considers the budget for a maximum of seven days.
However, in contrast to the position in the case of ordinary bills, the committee may
292
not amend the budget, or even consider any amendments to it, because particular
aspects, such as certain tariffs, come into force immediately on its publication, and
rejection or amendment of such an aspect may lead to serious repercussions. (In
this sense, eventual approval of the budget, therefore, in fact takes place ex post
facto.) The budget is a key to the execution of government policies and in parlia-
mentary systems its amendment or rejection has traditionally amounted to a motion
of no-confidence in the executive. In practice, the opportunity in the committee
was, therefore, used to obtain explanations from the minister and officials in order
for members to be better informed when taking part in later debates. The budget
was then in effect amended when the minister of finance introduced a supplemen-
tary budget later in the year. However, the Constitution provides that a law must
293
provide for the procedures to amend money bills. Therefore, in principle it is
henceforth possible to amend the budget.
(iii) After consideration of the budget by the committee, the first reading debate
294
takes place in the National Assembly. During this debate, probably the most im-
portant of the parliamentary year, all aspects of government policy and the admin-
istration of the country are discussed widely.
(iv) As soon as the first reading has been approved, the different budget votes or
295
subdivisions of the budget, as contained in the schedule to the bill, are discussed
296
separately in the house or in appropriation committees. As any aspect of the
________________________
288 S 186 of the Interim Constitution provided: “The Minister responsible for national financial
affairs shall in respect of every financial year cause to be laid before the National Assembly an
annual budget reflecting the estimates of revenue and expenditure, which shall, among other
things, reflect capital and current expenditure of the government for that year.” The present
Constitution does not contain a similar provision, but see ss 213(2) and 215.
289 R 288 of the Rules of the National Assembly. Other money bills may indeed be considered
according to the procedures for ordinary bills (r 286).
290 S 73(2).
291 R 290.
292 R 290(4).
293 S 77(2). The law that has been made in this regard is the Money Bills Amendment Procedure
and Related Matters Act 9 of 2009.
294 R 289. Rejection of the first reading means that the bill has been rejected (r 289(3)).
295 The funds appropriated for a particular department eg forms one budget vote (Afrikaans:
“pos”).
296 R 291–293 and r 35–39.
activities of departments may be discussed during the consideration of the votes of
the different departments, this is a critical stage which takes considerable time.
(v) After consideration of the separate votes, the second reading debate and the
297
approval of the budget take place.
(vi) The bill is now referred to the National Council of Provinces, which follows
298
more or less the same procedure in condensed form as the National Assembly. As
is evident from the procedures for the resolution of disagreements, the authority of
the Council over money bills is subject to that of the National Assembly.299
(vii) After the adoption of a money bill, the bill is referred to the President for assent.
2.5.7.4 Disagreements
In all multi-cameral parliaments mechanisms must be provided for dealing with
300
those cases in which the houses do not reach agreement on a bill. The mechanism
chosen depends on whether the houses of the parliament concerned are equal or
not.
In parliaments where the houses are equal:
• the bill may be sent back and forth between the houses with their respective
301
amendments until agreement is reached (this is called la navette); or
• the houses must appoint a joint committee to formulate mutually acceptable
302
proposals; or
303
• parliament is dissolved for an election.
In none of these cases is a law made if the houses do not reach agreement.
In parliaments where the houses are unequal:
304
• the decision of the dominant house may prevail without further ado; or
• the resistance of the other house has a delaying effect so that the bill can only be
passed during the next session;305 or
• the dominant house must confirm its initial adoption of the bill by a special
majority;306 or
________________________
297 R 294.
298 Under the Interim Constitution, the Senate could already, upon submission of the report of
the joint standing committee on finance, and before receiving the bill itself from the Nation-
al Assembly, discuss the bill in a review of a minister’s policy on the basis of the particulars
embodied in the relevant budget vote (r 170 of the Standing Orders of the former Senate.)
Evidently, the idea was to afford the Senate the opportunity to consider aspects of the budget
during the few months in which the National Assembly was engaged in its consideration. It
seems as if this possibility does not exist anymore.
299 Para 2.5.7.5 (d).
300 See the full discussion by Malherbe EFJ “Die beslegting van geskille in meerkamerparlemen-
te” 1991 SA Publiekreg 207 ff.
301 This is the position in France, Belgium, Italy and Switzerland (II Inter-Parliamentary Union II
Parliaments of the World (1986) 883).
302 The primary example is the American congress (see in particular Jewell ME and Patterson SC
The Legislative Process in the United States (1973) 179 ff and Vogler DJ The Third House: Conference
Committees in the United States Congress (1977)).
303 See s 57 of the Australian Constitution.
304 In Britain the rejection of the budget by the House of Lords has no effect (Parliament Acts of
1911 and 1949).
305 In Britain in the case of ordinary bills and in Argentina, Chile, Malaysia, Ireland and Sri
Lanka (Inter-Parliamentary Union I Parliaments of the World (1986) 890 ff).
307
• the disagreement is resolved by an ordinary or special majority in a joint sitting;
or
• the subordinate house has a delaying or absolute veto in respect of certain bills
308
only.
In South Africa, the houses of parliament are unequal, and different arrangements
are made for the resolution of disagreements.
A disagreement occurs when the houses take conflicting decisions in respect of the
309
second reading of a bill.
(i) Ordinary bills affecting the provinces – section 76 bills
Although it remains subject to the National Assembly, the National Council of Pro-
vinces has, as the representative of the provinces, slightly more authority in respect
of section 76 bills than in respect of other ordinary bills. Therefore, disagreements
on the two categories of bills are treated differently.
A disagreement on a section 76 bill are dealt with as follows:310 If the Council
amends the bill as adopted by the National Assembly, the bill is referred back to the
National Assembly311 and if the latter approves the bill as amended, the bill is re-
ferred to the President for assent. If the Council rejects the bill, or the National
Assembly rejects the amendments of the Council, the bill is referred to the media-
tion committee.312 The mediation committee consists of nine members of each
313
house and takes a decision with the support of five members of each house. Dif-
ferent possibilities exist:
• If the mediation committee fails to react within 30 days, the bill lapses, unless the
National Assembly adopts it a second time by a two-thirds majority.
• If the mediation committee recommends the bill as adopted by the National
Assembly, the bill is referred to the Council and if it supports the bill this time,
the bill is adopted. (If the mediation committee recommends the version adopt-
ed by the Council, it is the National Assembly that must decide.)
• If the mediation committee recommends another version of the bill than the one
referred to it, the bill must be referred back to both houses for adoption.
If the Council rejects a bill recommended by the mediation committee, it lapses
unless the National Assembly adopts it by a two-thirds majority. If the National
Assembly must decide on a bill recommended by the mediation committee and it
rejects it, the bill lapses, but the National Assembly may, by a two-thirds majority,
adopt for a second time the bill that it has originally adopted. The real resolution of a
disagreement between the houses is, therefore, that the National Assembly prevails by a two-
thirds majority.314
________________________
306 Eg in Spain, Mexico and Japan. In Germany the Bundestag must confirm its decision by a two-
thirds majority if the Bundesrat has rejected the bill with a two-thirds majority (ss 77 and 78 of
the Constitution).
307 Eg in India and Jordan.
308 Eg in Germany in respect of bills affecting the states and in Pakistan.
309 R 253(4).
310 S 76.
311 The procedures to be followed when a house refers a bill back to the other are fully ex-
plained in the rules of each house. See r 184–190 of the Rules of the National Assembly; r
202-206 of the Rules of the National Council of Provinces.
312 Within seven days (r 186(3)).
313 S 78. The nine members of the National Assembly are designated on a proportional basis,
whereas the Council nominates one member from each province.
314 S 76(1)(i) and (j).
The Constitution also describes, somewhat elaborately, the procedure for the
resolution of a disagreement on a section 76 bill first introduced in the National
315
Council of Provinces, but it amounts to the same arrangement described above. In
addition, the Joint Rules provides that if a disagreement occurs on a mixed section
75/section 76 bill, the bill must be split in its two parts, if possible, and be dealt with
316
separately.
(ii) Other ordinary bills (section 75 bills) and money bills
The subordinate position of the National Council of Provinces is particularly evident
in the case of these categories of bills. A disagreement on a section 75 bill is treated as
follows:317 If the Council amends or rejects the bill as received from the National
Assembly, the bill must be referred back to the Assembly, and the Assembly, taking
into account the amendments of the Council, if any, must adopt the bill again with
318
or without amendments, or must allow the bill to lapse. A disagreement on a money
319
bill is resolved in the same way.
2.5.7.5 Assent, publication and commencement

Heads of state must approve bills, which entails formal approval or assent, or a sub-
stantial veto.
It has been mentioned before that in most states the legislative authority is exercised
by more than one government body and/or functionary. In most cases, a bill must
be approved by the head of state after its adoption by parliament. That may be a
320
mere formality, as in the Westminster system, or the head of state may have a sub-
321
stantial veto right, which applies either absolutely, or may be defeated by parlia-
322
ment. In the Westminster system, the strict convention applies that the head of
state must assent to bills adopted by parliament. That was also the case in South
Africa in terms of previous Constitutions.323
Section 79(1) of the Constitution provides that the President must either assent to
a bill or, if the President has reservations about the constitutionality of the bill, must
refer it back to the National Assembly.324 The constitutionality of a bill is a wide
concept. If the President is of the opinion that a particular bill has been adopted
________________________
315 S 76(2).
316 R 191–201 of the Joint Rules. The classification committee is involved in this and a mixed bill
can be declared out of order if a split is impossible.
317 S 75.
318 The arrangement in the Interim Constitution in terms of which the Senate had a veto over
bills affecting the boundaries and the exercise and performance of the powers and functions
of the provinces, as well as certain bills affecting provincial finance, was terminated (s 61 of
Act 200 of 1993. See Rautenbach IM and Malherbe EFJ Constitutional Law (1994) 130.)
319 S 77(3). Resolution of a disagreement by means of the mediation committee is expressly not
applicable to money bills (s 76(6)).
320 That is also the position in Denmark, Sweden, Israel, Japan, the Netherlands, Spain and
Belgium (Inter-Parliamentary Union II Parliaments of the World (1986) 929 ff).
321 In Cameroon, Gabon and Indonesia.
322 By an ordinary majority in France, Greece, Italy, Malaysia and Senegal and by a special
majority inter alia in Algeria, Brazil, Egypt, Ivory Coast, Mexico, Philippines, Tanzania and the
USA (Inter-Parliamentary Union II Parliaments of the World (1986) 900 ff).
323 See eg s 33(1) of the 1983 Constitution.
324 See Butler A and Butler P “The referral procedure in sections 79 and 80 of the 1996 Consti-
tution” 1997 SA Public Law 331. In terms of r 205 such referral is conveyed to parliament by
message and parliament may give precedence to it.
according to the wrong procedures, or the bill is inconsistent with the Bill of Rights,
or with the distribution of powers between the national and provincial governments,
the President may refer the bill back. The Constitution provides that the joint rules
325
of parliament must prescribe the procedures for the reconsideration of such a bill,
but that the National Council of Provinces must participate if the President’s reser-
vations relate to a procedural matter involving the Council, or if a constitutional
amendment is involved. When the reconsidered bill, with or without amendments, is
again submitted to the President, the President must assent to it, or, if he or she still
deems it to be unconstitutional, must refer it to the Constitutional Court for a deci-
326
sion. This is an example of prior control by the courts. The President may refer to
the Court only those aspects of the bill which he referred back to the National Assem-
bly for reconsideration.327 In the Liquor Bill case it was held that the Court’s function
upon referral is restricted to a consideration of the President’s reservations and that it
is not called upon to adjudicate on the constitutionality of the bill in its entirety.328
A bill assented to by the President becomes an act of parliament, must be pub-
lished promptly and takes effect upon such publication or on a later date.329 An act
may confer a discretion on the President to determine by proclamation the date on
which the act will take effect.
Where the President has issued a proclamation to bring an act into operation in
error and this proclamation has yet to come into force, the President may withdraw
the proclamation. However, when the President does not have the power to amend
a proclamation issued in error where the original proclamation was void from its
330
commencement. A nullity cannot be amended but it can be withdrawn. In Minister
for Environmental Affairs v Aquarius Platinum (SA) (Pty) Ltd the Constitutional Court
declined to confirm a decision of the High Court that the President’s postponement
of the commencement of certain sections of the new Environmental Laws Amend-
ment Act, until the Minister has made regulations in terms of the Act, was irrational.
According to the Court, the President’s decision was reasonable as he allowed three
months for the regulations to be made, but that the Minister then refrained from
making the regulations within the allocated time – which resulted in non-
commencement of some parts of the Act.331
________________________
325 See r 202 ff of the Joint Rules.

326 See ch 10 para 5.2.1.
327 In re: Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1
SA 447 (CC) paras 9–11, where this was held in respect of the similar provisions applicable to
provincial legislation (s 121).
328 Ex parte President of the RSA: In re: Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC), 2000 1 SA
732 (CC) paras 11–20. That would, eg, allow later constitutional challenges on aspects of the
legislation not covered by the judgment (para 20). See the discussion of the case by Malherbe
“Die Drankwetsontwerp: vooraf kontrole en grondwetlike gesagsverdeling verder omlyn” 2000
THRHR 321.
329 S 81. In Pharmaceutical Manufacturers Association of SA; In re: Ex Parte Application of the President
of the RSA 2000 3 BCLR 241 (CC), 2000 2 SA 674 (CC) the President brought a new act for
the control of medicine into effect while the regulations without which the act could not
function, were not in place. The court held (paras 85–90) that a decision must be rationally
related to its purpose, and despite the President having acted in good faith, his decision was
not objectively rational. The proclamation bringing into effect the act was accordingly set
aside. See also LMT Beneficiaries Forum v President of the RSA 2002 1 BCLR 33 (T). See further
on the commencement of legislation Supreme Gaming CC v Minister of Safety and Security 2000 3
SA 608 (SCA).
330 Kruger v The President of the RSA 2009 3 BCLR 268 (CC), 2009 1 SA 417 (CC) para 61.
331 2016 5 BCLR 673 (CC).
2.5.7.6 Judicial control over bills
The Constitution provides that within 30 days of the President’s assent to a bill,
members of the National Assembly may apply to the Constitutional Court for an
order declaring the law unconstitutional.332 At least one third of the members must
support the application. If the application has a reasonable prospect of success and
it is in the interest of justice, the Court may order that the law has no force depend-
333
ing on the final verdict. This mechanism is an example of abstract control by the
334
courts.
2.5.7.7 Amendment of the Constitution: entrenchments
Usually, constitutions are wholly or partly entrenched, which means that limitations
are placed on the repeal or amendment of all or certain of their provisions.
Constitutional entrenchment means therefore that it is more difficult to amend the
constitution than to amend ordinary legislation. Entrenchment affords a constitution
335
higher status. In the case of entrenched constitutions or parts of constitutions,
reference is often made to “inflexible constitutional law”. In contrast, “flexible con-
stitutional law” refers to constitutions that are not subject to limitations on their
amendment or repeal and which may be amended in accordance with ordinary
legislative procedures. Different entrenchment methods exist.336
337
The entire South African Constitution is entrenched.
Thus any bill amending the Constitution has to be adopted according to a special
338
procedure. Multiple entrenchment methods are employed in the Constitution, but
the entrenchments mainly entail a more difficult procedure for parliament.
(a) A bill amending the Constitution may not contain other provisions.339 The Con-
stitution may thus not be amended expressly or by implication by a bill dealing with
another matter.
(b) At least 30 days before its introduction, particulars of the amendments in the
bill must be published in the Government Gazette for comment, be referred to the
provincial legislatures and, if the amendments do not require the approval of the
________________________
332 S 80.
333 Should the application fail, the Court may order the applicants to pay costs if they did not
have a prima facie case (s 80(4)). See on an application in terms of the Interim Constitution
eg Kilian v Gauteng Provincial Legislature 1999 2 BCLR 225 (T) and Gauteng Provincial Legisla-
ture v Kilian 2001 3 BCLR 253 (SCA), 2001 2 SA 68 (SCA) where the legislature concerned
was ordered to pay the costs of the applicants.
334 See ch 10 para 5.2.1.
335 Ch 3 para 2.2.3.
336 See all the methods mentioned in SA Law Commission Report on Constitutional Models (1991)
1444 ff and also in Malherbe EFJ Die Wetgewende Prosedure van die Parlement (1991 thesis RAU)
470 ff and for a brief overview, see Rautenbach IM and Malherbe EFJ Constitutional Law
(2009) 175–176.
337 S 74. That is in contrast to previous Constitutions, which have been entrenched only partly.
In the 1961 Constitution, eg, only the provisions in respect of the equal status of English and
Afrikaans as official languages were entrenched.
338 Amendment of the Canadian Constitution also entails multiple methods – see the comments
by Hogg PW Constitutional Law of Canada (1999) 72 ff.
339 S 74(4). The bill may include matters in connection with the amendments. So far most
amendments originated from the activities of the joint standing committee on the revision of
the Constitution (s 45(1)(d)(iii)), which submits an annual report to parliament.
National Council of Provinces, be referred to the Council for a public debate. Upon
340
introduction, the comments that have been received must be tabled.
(c) The National Assembly may not vote on the bill within 30 days of its introduc-
tion or, if the Assembly was not sitting when the bill was introduced, within 30 days
of its tabling in the Assembly.341
This requirement was added in pursuance of the decision by the Constitutional Court
in In re: Certification of the Constitution of the RSA, 1996 that special majorities alone do
not comply with constitutional principle XV, which provided that amendments to the
342
Constitution shall require “special procedures involving special majorities”. On the
one hand, the Court’s interpretation of the principle can be questioned. Decision-
making and the majority that is required is an integral part of the procedures for the
adoption of any bill, and when a special majority is required, it amounts to nothing
less than a special procedure as required by the principle. On the other hand, the pro-
vision that the bill may not be adopted within 30 days of its introduction (or
tabling), is by no means a significantly stricter requirement. Normally, bills are in any
case not finalised any quicker. In other parliaments where such a delay applies, the
343
minimum period is never less than three months and, in most cases, the bill may be
344
finalised only during the next session or after an election. It is not clear why the
requirement does not apply to the National Council of Provinces as well.
(d) When a vote is taken on the bill, different majorities apply in the case of different
provisions:
(i) Section 74(1) provides that section 1 of the Constitution, which expounds cer-
tain fundamental values of a democratic system, can be amended only by a majority
of at least 75% (three quarters) in the National Assembly and with the support of at
345
least six of the nine provinces in the National Council of Provinces.
Section 74(1), the entrenching provision, is itself entrenched in this stricter way,
in order to prevent the amendment of the entrenching provision in accordance with
the ordinary two-thirds requirement to repeal the stricter requirement.
The implications of this stricter entrenchment can be far-reaching. Section 1 con-
tains values and principles that are given effect by various provisions throughout the
Constitution. Due to their stricter entrenchment and their consequent higher status,
the values in section 1 therefore protect such provisions elsewhere in the Constitu-
tion. Hence, it will not be possible to amend those provisions by a two-thirds majori-
ty in a way that violates the values in section 1. That will require a 75% majority and
the support of six provinces in the National Council of Provinces. Section 74(1) has
346
therefore a much wider effect than the protection of sections 1 and 74(1). If this
was not the case, it would have been possible to undermine the values in section 1 by
the amendment of the provisions that give effect to them according to a less strict
________________________
340 S 74(5) and (6). See below in respect of amendments that do not require the approval of the
Council.
341 S 74(7). See also r 258 ff of the Rules of the National Assembly and r 172 ff of the Joint Rules
on the procedure in general.
343 Eg Tunisia.
344 In Liechtenstein, the bill may be adopted only during the next session, and in Denmark,
Finland and Sweden only after an election (Inter-Parliamentary Union I Parliaments of the
World (1986) 516 ff).
345 See ch 1 para 2(e) on the provisions of s 1.
346 See the full argument by Malherbe EFJ “Die wysiging van die Grondwet: die oorspoel-
imperatief van artikel 1” 1999 TSAR 191 195 ff. See also Chaskalson M and Davis D “Constitu-
tionalism, the rule of law and the first Certification judgment” 1997 SAJHR 430 439–440;
Bekink B “Balancing constitutional stability and flexibility: an evaluation of the constitutional
amendment procedures” 2004 TSAR 657–674.
procedure. The stricter entrenchment of section 1 would then be useless. When an
amendment of a relevant provision elsewhere in the Constitution does not violate a
value in section 1, it should, however, be possible to adopt it according to the proce-
dure prescribed for the amendment of that particular provision. An example is the
Bill of Rights. The values of human dignity and equality in section 1 form, as it were,
the basis of the whole Bill of Rights and the objective of the Bill of Rights is indeed the
advancement of human rights and freedoms. Any amendment to the Bill of Rights
which violates these values, or inhibits the advancement of human rights and freedoms,
will require a 75% majority and the support of six provinces in the National Council of
Provinces. A second example is the value of constitutional supremacy, which is
confirmed in section 2. Any amendment elsewhere in the Constitution that violates this
value also requires this higher majority. Thirdly, amendments that violate the principles
347 348
in section 1 with regard to the electoral system, elections, the role of political par-
349 350
ties and the accountability of the executive also require a higher majority. In other
words, section 74(1) has the effect that the principles on which the Constitution are
based, as well as the provisions of the Constitution that give effect to those principles, are en-
351
trenched according to the stricter requirement for the amendment of section 1.
(ii) An amendment to chapter 2, which contains the Bill of Rights, requires a two-
thirds majority in the National Assembly and the support of at least six provinces in
352
the National Council of Provinces.
This provision was added after the Constitutional Court had held in In re: Certification
of the Constitution of the RSA, 1996 that constitutional principle II, which provided that
the Bill of Rights had to be protected by “entrenched and justiciable provisions in the
Constitution”, implied that the Bill of Rights had to be entrenched more strictly than
353
the “ordinary” provisions of the Constitution. The Court interpreted the principle
incorrectly. It is as unjustified to infer stricter justiciability of the Bill of Rights from
the words “justiciable provisions in the Constitution”, as it is to infer stricter en-
trenchment of the Bill of Rights from the words “entrenched provisions in the Consti-
tution”. The words mean nothing more than that the Bill of Rights had to be
entrenched as was envisaged by constitutional principle XV for the whole Con-
stitution. In addition, the Court itself mentioned examples of stricter entrenchments,
354
among others the involvement of the second house, the example followed in the
Constitution. The question may rightly be put whether the addition of the National
Council of Provinces to the procedure for the amendment of the Bill of Rights com-
plies with the decision of the court that the Bill of Rights must be entrenched more
355
strictly than the “ordinary” provisions of the Constitution.
________________________
347 Ss 46, 105 and 157.

348 Ss 49, 108 and 159.
349 Ss 46(1)(d) and 105(1)(d) and possibly also ss 57(2) and 116(2).
350 Ss 92 and 102, to name but a few.
351 See Butler A “The 1996 Constitution Bill, its amending power, and the Constitutional Princi-
ples” Konrad Adenauer Stiftung Occasional Papers (July 1996) 4–5, who expresses doubts
about this. Currie I and De Waal J The New Constitutional and Administrative Law Vol I Constitu-
tional Law (2001) 183–184 argue that no such link exists between s 1 and any other provision
of the Constitution, and that when, eg, the non-discrimination provision in s 9(3) has been
abolished, one may simply rely separately on the value of equality in s 1. This is a textual ar-
gument which denies any influence the values in s 1 may have outside of s 1 itself, reduces
them to a mere set of good intentions, and raises the obvious question why s 1 was then en-
trenched so strictly.
352 S 74(2).
354 Para 159. See also para 156.
355 To the extent that the provisions on the boundaries, powers, functions or institutions of the
provinces are regarded as “ordinary” provisions, but in pursuance of constitutional principle
XVIII.4, which provided that amendments to these provisions required a two-thirds majority
In contrast to section 74(1), section 74(2), the entrenching provision, is itself not
entrenched according to this stricter requirement. If this implies that the stricter en-
trenchment of the Bill of Rights can be revoked by the ordinary two-thirds majority
required for the amendment of the “ordinary” provisions of the Constitution, it would
be inconsistent with the Court’s interpretation of constitutional principle II. Certific-
ation of the Constitution means that the constitutional principles are complied with
and that a prohibition on the amendment of section 74(2) according to another procedure
than the procedure of section 74(2) itself, must be read into the provision. It is dis-
appointing that it has not been provided for expressly as in section 74(1).
(iii) An amendment that affects the National Council of Provinces, or that amends
provincial boundaries, powers, functions or institutions, or that amends any provision
of the Constitution relating to the provinces, also requires a two-thirds majority in the
National Assembly and the support of at least six provinces in the National Council
of Provinces.356
(iv) An amendment referred to in paragraph (iii) that affects a specific province or
provinces may not be adopted by the National Council of Provinces unless it has
been approved by the relevant provincial legislature or legislatures.357 This is an
example of ratification by institutions that do not form part of the ordinary legislative
process. Ratification was involved in Matatiele Municipality v President of the RSA, in
which the amendment of provincial boundaries was invalidated on the ground that
parliament did not provide sufficiently for public participation in the legislative
358
process as required by sections 59(1)(a) and 72(1)(a). This means that public
participation is a requirement not only in the case of ordinary legislation, but also in
the case of constitutional amendments. The court also held that when provincial
boundaries are altered, specific provinces are always affected, in which case ratifica-
tion by the provincial legislatures in question are required359 and that public partici-
pation is a requirement for provincial ratification as such.360
Note that section 74 does not make provision for the resolution of disagreements
on constitutional amendments. The implication is that a proposed amendment to
the Constitution will lapse if the houses cannot reach consensus on it. This does not
exclude the houses from employing different mechanisms such as joint committees
to promote consensus between them. However, it is a question whether the Joint
Rules of Parliament make a valid arrangement by providing that disagreements on
constitutional amendments must also be referred to the mediation committee.361
________________________
in the second house, these provisions in respect of the provinces can possibly also not be re-
garded as “ordinary” provisions.
356 S 74(3).
357 S 74(8). See r 174 of the Joint Rules. In Premier of KwaZulu-Natal v President of the RSA 1995 12
BCLR 1561 (CC), 1996 1 SA 769 (CC) the Constitutional Court confirmed in respect of the
corresponding s 62(2) of the Interim Constitution that such approval was necessary only if a
particular province or provinces were affected and not when an amendment affected the
provinces in general.
358 2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC).
359 Para 18–30, specifically para 30. The court further held that the provincial legislatures need
not ratify the new criterion for the determination of provincial boundaries (municipal
boundaries instead of magistrate districts), but indeed the specific boundary changes (paras
24–27).
360 See also Merafong Demarcation Forum v President of the RSA 2008 10 BCLR (CC), 2008 5 SA 171
(CC) and Poverty Alliance v President of the RSA 2010 6 BCLR 520 (CC); Moutse Demarcation Fo-
rum v President of the RSA 2011 11 BCLR 1158 (CC).
361 R 177–180 of the Joint Rules. R 180 does, however, admit that a constitutional amendment
will lapse if the disagreement cannot be resolved with the aid of the mediation committee.
The mediation committee is appointed in terms of the Constitution to resolve dis-
agreements on section 76-bills, which expressly do not include constitutional amend-
ments.
(v) All other provisions of the Constitution may be amended by a two-thirds majority
362
in the National Assembly.
(e) In respect of all constitutional amendments, the Constitution Court has devel-
oped a requirement that a constitutional amendment must be rationally related to
the purpose of the amendment. This rule is inferred from the rule of law as found-
ing principle in section 1 of the Constitution.363
364
(f) A bill adopted as prescribed must be referred to the President for assent.
3 Judicial control over legislative bodies365

(a) Judicial control over legislative bodies means that a court may determine whether
a rule of law has been enacted by a body acting within the limits of its powers, and in
accordance with the correct procedure. In a system of constitutional supremacy it
also means that a court may determine whether a law complies with the norms laid
down in the constitution, for example those in the bill of rights.
The judicial function of determining the applicable rule of law in disputes before
the courts, includes the determination of whether a rule alleged to be a rule of law
has been enacted by a person or body which exercises legislative authority and has
acted within the limits of its powers, and in accordance with the prescribed proce-
dures. Judicial control is exercised in this manner over legislative bodies at all levels
366
of government, and over all executive bodies that perform legislative actions.
As judicial control over legislative bodies is an inherent function of the judicial
authority, it is, strictly speaking, unnecessary expressly to assign this function to the
courts in the constitution. As a matter of fact, this has not been done in the American
Constitution with regard to federal bodies. Since 1803, when the Supreme Court in
Marbury v Madison367 invalidated a law of congress for368the first time, the Court has nev-
er questioned the exercise of its own control powers. All the same, American writers
________________________
362 S 74(3)(a).
363 See Merafong Demarcation Board v President of the RSA 2008 10 BCLR 969 (CC), 2008 5 SA 171
(CC) paras 62, 66 and 114; Poverty Alliance Network v President of the RSA 2010 6 BCLR 520
(CC) para 69; Rautenbach IM “Means-end rationality in Constitutional Court judgments”
2010 TSAR 778–779. See also Executive Council, Western Cape Legislature v President of the Republic
of South Africa 1995 10 BCLR 1289 (CC), 1995 4 SA 877 (CC) para 204.
364 S 74(9). The short title of a constitutional amendment receives no act number and all
constitutional amendments follow chronologically upon one another. In terms of the Cita-
tion of Constitutional Laws Act 5 of 2005, the Constitution has no act number (the incorrect
but popular reference to Act 108 of 1996 has in other words been repealed), nor the short ti-
tles of constitutional amendments, which are merely referred to as Constitution First
Amendment Act of 1997, Constitution Second Amendment Act of 1998, etc. See Malherbe R
“’n Komedie van vergissings: die (nie-)wysiging van ’n nie-bestaande wetsbepaling” 2006
TSAR 356–359. See Rautenbach IM and Malherbe EFJ Constitutional Law (2009) 177 for notes
on the procedure for amending the Interim Constitution.
365 For a more extensive discussion, see Rautenbach IM and Malherbe EFJ Constitutional Law
(2009)182–186.
366 A court may even in respect of rules of customary law determine whether the requirements
for the recognition of a custom as a rule of customary law, have been complied with.
367 (1803) 1 Cranch 137.
368 Other states where judicial control over laws has been recognised in court decisions are,
Canada, Denmark and Norway. (See with regard to Belgium Alen A I Beginselen en Grondslagen
van het Belgisch Publiek Recht (1988) 110.)
369
have seriously debated the principles of judicial control through the years. In order
to eliminate uncertainty and confusion over the nature and extent of judicial control,
in particular in respect of laws of parliament, explicit provisions in this regard can be
found in many modern constitutions.
The so-called counter-majoritarian debate concerns the question of whether it is un-
democratic for an unelected judiciary to be vested with the authority to overrule the
laws of the legislature as the elected representatives of the voters. To the extent that
it could be viewed as a debate whether judicial control over legislative bodies and
particularly parliament is appropriate, it is a spent debate in South Africa – parlia-
ment is no longer sovereign and subject to judicial control in respect of its compli-
ance with the Constitution. Apart from the different control mechanisms that apply
370
to the courts, it must be taken into account in this regard, first, that as much as the
legislative and executive branches of government, the courts are subject to the law
371
and cannot act arbitrarily. Secondly, the courts must apply the law as laid down by
the elected branches of government. It remains for the legislature to amend laws
where it does not agree with the interpretation of the courts. Even in the case of an
entrenched constitution, the competent authority may amend it according to the
prescribed procedures, as long as the democratic foundation of the state remains
intact. Thirdly, it is the duty of the courts to promote democratic values and
372
norms. As long as the courts fulfil this duty and thus remain an instrument of
democracy,373 it is difficult from a democratic point of view to argue that the courts
are undemocratic or without legitimacy. Lastly, a particular balance does exist between
the different branches of government. The courts form part of the trias politica and
374
are not above the legislative and executive authority.
A related question is the extent of restraint that the courts should exercise when
dealing with so-called political questions.375 On this the Constitutional Court
________________________
369 The different views can be summarised as follows: (a) no constitutional authorisation for
judicial control exists and its exercise by the courts amounts to a usurpation of power (Bou-
din LB Government by Judiciary (1932) ch 6; McDonough JB “Usurpation of power by federal
courts” 1912 American Law Review 45); (b) the Constitution expressly authorises judicial con-
trol (Coxe B Judicial Power and Unconstitutional Legislation (1893)); (c) the majority of framers
of the Constitution had the intention to regulate the matter (Thayer JB “The origin and
scope of the American doctrine of constitutional law” (1893) in Association of American Law
Schools I Selected Essays on Constitutional Law (1938) 503; Bickel AM The Least Dangerous Branch
(1962) ch 1); and (d) judicial control stems from the philosophical trends at the time of the
adoption of the Constitution (eg Corwin ES in various contributions reprinted in I Selected Es-
says on Constitutional Law, inter alia “Marbury v Madison and the doctrine of judicial review”
(1914) and “The ‘higher law’ background of American constitutional law” (1929)).
371 See eg s 165(2) of the South African Constitution.
372 See eg s 39(1) of the South African Constitution.
373 Redlich N “Judges as instruments of democracy” in Shetreet S (ed) The Role of Courts in Society
(1988) 149–157.
374 See the remarks by Malherbe R “The legal system and the judiciary” in Taljaard R and Venter A
“Parliament” in Venter A and Landsberg C Government and Politics in the New South Africa (2006)
106-107.
375 See the extensive discussion of this issue by Klug H Constituting Democracy: Law, Globalism and
South Africa’s Political Reconstruction (2000) 139 ff. See also Okpaluba C “Judicial attitude to-
wards unconstitutionality of legislation: a Commonwealth perspective (part I)” 2000 SA Public
Law 50 54–56; Rautenbach IM “Policy and judicial review – political questions, margins of
appreciation and the South African constitution” 2012 TSAR 20–34.
consistently took the view that the function of the Court was not to address the merit
376
of political decisions, but their constitutionality.
(b) In terms of the Constitution, and on the basis of the Constitution as supreme
law, the judiciary has complete control over all laws of parliament.
Any uncertainty with regard to judicial control over parliament which may have
existed in South Africa is something of the past since the commencement of the
377
Interim Constitution. The present Constitution confirmed this position. Section 2
provides that the Constitution is the supreme law of the Republic and that any law
or conduct inconsistent with it shall be of no force or effect. Although it could be
argued that on the basis of this provision alone, the courts would already be com-
petent to test the validity of laws of parliament, section 172(2)(a) expressly pro-
vides that the Supreme Court of Appeal and any High Court may make an order
on the constitutional validity of an act of parliament. The Constitutional Court
must, however, confirm orders of unconstitutionality of parliamentary and provin-
cial laws.378 At the request of at least one third of the members of parliament, the
Court must also give a decision on the constitutionality of a law adopted by par-
379
liament. The Court must also pronounce on the constitutionality of a bill when it
is submitted to the President for assent, and it is referred to the Court for a deci-
sion.380 Finally, the Court may decide that parliament has failed to comply with a
381
constitutional duty.
When considering the question of whether a law is inconsistent with the Constitu-
tion, a court should not confine itself to testing the law against the Constitution, but
should be able, as argued previously, to inquire whether the rules of parliament, in
terms of which the law has been adopted, are themselves consistent with the Consti-
382
tution. The view that parliament is subject to the Constitution also in respect of its
internal proceedings, was confirmed in Doctors for Life International v Speaker of the
National Assembly, in which ordinary laws were declared invalid on the ground that
383
parliament failed to comply with constitutionally prescribed procedures, as well as
in Matatiele Municipality v President of the RSA, in which constitutional amendments
384
were declared invalid for the same reason.
________________________
376 See eg. Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC)
para 180; In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4
SA 744 (CC) para 39; President of the RSA v SARFU 1999 7 BCLR 725 (CC), 1999 4 SA 147
(CC) para 12. Also relevant here is the Court’s approach to the justiciability of socio-
economic rights in Soobramoney v Minister of Health, KwaZulu-Natal 1997 12 BCLR 1696 (CC),
1998 1 SA 765 (CC) para 29; Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC),
2001 1 SA 46 (CC) paras 20 and 93–94; Minister of Health v Treatment Action Campaign (1) 2002
10 BCLR 1033 (CC), 2002 5 SA 721 (CC) paras 23–25.
377 S 4 Act 200 of 1993. See also ch 3 para 2.2.
378 Ss 167(5) and 172(2)(a). See ch 10 on the jurisdiction of the courts over the Constitution.
379 S 80. See para 2.5.7.5(f).
380 S 79. See para 2.5.7.5(e).
381 S 167(4)(e).
382 Malherbe EFJ “Die regsaard van parlementêre prosedure: ’n hedendaagse perspektief” 1992
TSAR 56.
383 2006 12 BCLR 1399 (CC), 2006 6 SA 416 (CC).
384 2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC).
Chapter 9
National executive authority
1 Executive authority and executive bodies 135

2 Heads of state and heads of government 140
3 Deputy heads of government 153
4 Ministers 154
5 Cabinets 157
6 The public service 159
7 The Constitution and general rules for executive and administrative acts 161
8 Control over executive bodies 164
9 Advice to the executive 168
1 Executive authority and executive bodies

1.1 Executive authority 135
1.2 Executive bodies 136
1.3 Responsibility for the exercise of executive authority 137
1.1 Executive authority

Executive authority is the power to execute rules of law. National executive
authority is exercised in the whole territory of the state on matters that do not fall
within the functional areas of the other levels of government.
In modern democracies, executive bodies are in all respects bound by the law and
subject to the legislature. Their activities and actions are nevertheless important to
the community and public attention normally focuses more on their activities than
on those of legislative and judicial bodies.
• The highest executive offices are nearly always occupied by national political
leaders.1
• In all states, certain executive bodies are competent to create rules of law
2
through subordinate legislation.
3
• Executive organs of state plan, co-ordinate and manage state activities. They fulfil
a key role in “planning” policy and the content of rules of law that legislative bodies
approve.
The South African Constitution employs the terms executive powers and executive
4
functions. Within the context in which the concepts are used, the difference between
them may be explained as follows. An executive power amounts to the capacity to
________________________
1 The study by Blondel J Political Leadership (1987) therefore deals to a large extent with leader-
ship within the framework of executive bodies – see in particular, ch 5 “The influence of insti-
tutions on political leadership.”
2 See ch 8 para 2.2.5.
3 Wiechers M Administrative Law (1985) 18.
4 See ss 41(1)(e), 84(1), 90(2), 91(2), 127(1), 131(2) and 132(2) of the Constitution.
135
enforce a legal rule coercively against others. A power is exercised by performing cer-
tain functions. Yet the performance of functions does not always entail that powers are
exercised. In other words, the Constitution may provide for (or authorise) the per-
formance of certain functions that do not amount to the exercise of powers, because
5
they do not involve acting in a coercive way against others. When powers and func-
tions are assigned, duties/obligations are imposed to exercise the powers and perform
6
the functions.
According to the South African Constitution7 the national executive authority is
exercised by:
(a) implementing national legislation except where the Constitution or an act of
parliament provides otherwise;8
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the Constitution or in
This provision contains a comprehensive definition of national executive powers
and functions. Certain specific functions are referred to in (b), (c) and (d), whereas
(a) and (e) include all other powers and functions of national executive organs pro-
vided for in the Constitution and other legislation.
In South Africa, and in most other states with extensive constitutions, the constitu-
tion and other statutes are the main sources of executive powers. The only possible
exception could be common-law prerogatives, which heads of state and government
9
might have retained as remnants of the powers of erstwhile absolute monarchs.
1.2 Executive bodies

National executive power is exercised by various government bodies, for example,
heads of state, heads of government, ministers and public servants.
Most statutes contain references to the functionaries who are responsible for
implementing those statutes, for example, the minister of health, the minister of
justice, the President, or any other specific official. All legal rules are executed
________________________
5 In the second sentence of the following statement by the Constitutional Court in Minister for
Justice and Constitutional Development v Chonco 2010 2 BCLR 140 (CC), 2010 4 SA 82 (CC) para
29, the court used the word “power” as a synonym of “authorization”: “A function is a tasked
duty to act in terms of the Constitution or legislation. A functionary will have the power neces-
sary to fulfil a function that is assigned and, naturally, the corresponding obligation for its per-
formance.”
6 In Minister for Justice and Constitutional Development v Chonco 2010 2 BCLR 140 (CC); 2010 4 SA
82 (CC) para 30 the court explained: “Section 84(2)(j) is the source of the power, function and
obligation to decide upon applications for pardon” (italics added).
7 S 85(2). This provision does not contain a list of all the national executive functions because
s 85(2)(e) refers to any other “executive function” provided for in the Constitution or in na-
tional legislation.
8 The phrase “provides otherwise” refers to instances in which provincial legislation is imple-
mented by members of the cabinet (eg, as an appropriate step in terms of s 100(1)), or in
which national legislation is implemented by provincial executive organs of state (eg, in terms
of s 125(2)(b)).
9 See para 2.7.3 below and ch 3 para 3.3.
Chapter 9 National executive authority 137
within different administrations (mainly state departments), each of which is headed
10
by a political functionary, normally a minister.
Different terms are used to describe the government bodies that exercise execu-
tive authority, for example, “executive authority” as such, “administration” or “state
11
administration”, and “government”.
In the South African Constitution, the word “public administration” is used to describe
12
the activities of all organs of state (excluding the courts), administrations at all levels
13
of government, and public enterprises. It is also used to refer to the institutions en-
14 15 16
gaged in these activities. The words “executive” and “government” are used to re-
fer to the political functionaries, namely the President, Deputy President, ministers
and provincial premiers and members of executive councils. “Government” is also
17
used as the collective noun for the three so-called spheres of government. The word
“public service” is used for officials within the public administration who execute the
18
policies of the government.
In South Africa, the national executive authority is exercised by the President, the
ministers and any other functionary to whom it is assigned by the Constitution or
1.3 Responsibility for the exercise of executive authority

1.3.1 General 137
1.3.2 Individual responsibility 139
1.3.3 Collective responsibility 139
1.3.1 General
Constitutions determine in whom the responsibility for the exercise of executive
authority at the national level is vested.
________________________
10 It may also be the President or the Deputy President. Even when a law does not expressly refer
to a functionary responsible for its execution, it will be the minister who is head of the admini-
stration within which the law is implemented.
11 Wiechers M Administrative Law (1985) 6 states: “The executive simply includes all those govern-
ment organs whose main function is not legislative or judicial and who have a specific place in
the state administration . . . the state administration embraces all those government organs
which traditionally fall within the executive authority of the state.” In German law a distinction
is often made between “government” and “administration”; “government” denotes executive
bodies with so-called political functions because they are directly responsible to the legislature,
whereas “administration” mainly refers to the officials who execute the policy decisions of the
government (Stern K II Das Staatsrecht der Bundesrepublik Deutschland (1980) 732). See on the
development of these terms and their practical implications, Baxter L “‘The State’ and other
basic terms in public law” 1982 SALJ 212 213–220, Stern (this note) 674–675. See also Rauten-
bach IM and Malherbe EFJ Constitutional Law (2009) 195.
12 S 239.
13 S 195(2).
14 Eg, in s 195(1)(i): “Public administration must be broadly representative . . .” and s 197(1):
“Within public administration there is a public service . . .”
15 Ss 83(a) and 125(6).
16 S 197(1): “. . . the government of the day.”
17 S 40(1).
18 S 197(1).
Section 85 of the South African Constitution provides that the executive authority of
the Republic is vested in the President and that the President exercises it together
with the other members of the cabinet.19
This provision determines where the highest responsibility for the exercise of the
national executive authority vests, namely in the President and the other members
of the cabinet.
Some matters are not regulated by section 85:
• The section does not describe what executive authority comprises. “Executive
authority” is not a concept with a fixed content – it comprises all separate powers
which are assigned to executive bodies in any law including the Constitution and
common law.
• The section does not describe by whom national executive authority is exercised.
At national level, executive authority is for the most part exercised by the Presi-
dent, ministers and, to a lesser extent, officials, mainly heads of departments.
Apart from the fact that virtually every law confers specific powers on ministers
and other functionaries, most laws also contain a general provision in which their
execution in general is assigned to a particular minister. The section also does
not mean that the President exercises all national executive authority because
the President is the head of the national executive. The President has only those
powers assigned to “the President” in the Constitution and other legislation, and
the President may not exercise powers that have been assigned to other func-
tionaries.
• The section does not describe how all national executive authority must be exer-
cised. Not all national executive authority is exercised by the President together
with the other members of the cabinet. When a power is assigned to a specific
functionary (for example, the President or a minister), that functionary exercises
the power in accordance with all the applicable rules of law.20
Because section 85 principally determines in whom final responsibility for the exercise
of national executive powers vests, it must be viewed within the framework of the
interplay between the individual and collective responsibility of members of the
cabinet.
According to section 92(2), members of the cabinet (the President, the Deputy
21
President and the ministers) are accountable collectively and individually to parlia-
ment for the exercise of their powers and the performance of their functions. This
gives effect to the democratic principle that the executive is accountable to parlia-
ment as the body which is elected directly by the voters.
________________________
19 “Executive authority of the Republic” means the national executive authority. National executive
organs may not exercise executive authority with regard to provincial functional areas. See In re:
The National Education Policy Bill No 83 of 1995 1996 4 BCLR 518 (CC), 1996 3 SA 289 (CC) paras
36 and 37.
20 As far as the President is concerned, one of these rules provides that when the President
exercises a power as “head of the national executive”, the President acts together with the oth-
er members of the cabinet – see para 2.7.2.2 below. In this respect, s 85 does contain a rule on
procedure, but it applies only to certain powers of the President.
21 S 91(1).
1.3.2 Individual responsibility
The President, the Deputy President and each minister are individually accountable
to parliament for the exercise and performance of their powers and duties.
22
Individual responsibility entails the following:
• A duty to explain to parliament how the powers and duties under his or her
control have been exercised and performed. The Constitution provides that
members of the cabinet must provide parliament with full and regular reports
23
concerning matters under their control.
• A duty to acknowledge that a mistake has been made and to promise to rectify the
matter.
• A duty to resign if personal responsibility has been accepted. In both Britain and
South Africa, the circumstances under which a minister must resign have always
24
been controversial.
The reference in section 92(2) to “members of the Cabinet” does not mean that the
President is accountable individually only for powers and functions that the Presi-
dent exercises and performs as “head of the national executive together with the
25
other members of Cabinet”. The President is individually accountable to parlia-
ment for the exercise and performance of all his or her powers and functions,
including those assigned to the President merely as “President”.26 The President’s
individual accountability to parliament derives from the fact that the President is
elected by the National Assembly and may be removed from office by the National
27
Assembly.
1.3.3 Collective responsibility

The members of a cabinet act in unison to the outside world and carry joint respon-
sibility before parliament for the way in which each member exercises and performs
powers and functions.
28
With reference to the British cabinet Mackintosh declares: “The decisions of the
government are not said to be those of the Prime Minister or of the departmental
ministers. Acts are not labelled with the names of politicians or civil servants or even
held to be simply the work of Parliament; in theory they all emanate from the
________________________
22 Venter AJ “The executive: a critical evaluation” in De Villiers B (ed) Birth of a Constitution

(1994) 181 and “The executive” in Venter A (ed) Government and Politics in the New South Africa
(2001) 57 69 ff.
23 S 92(3)(b).
24 See Asmal K “When should a minister resign?” Mail and Guardian (14–20 June 1996) 20.
Venter AJ “The executive: a critical evaluation” in De Villiers B (ed) Birth of a Constitution
(1994) 181–182 divides the duty to resign into three categories: (a) personal responsibility
when a minister has been personally involved, (b) vicarious responsibility for the actions of of-
ficials in his or her department; and (c) personal moral responsibility for personal immoral
conduct.
25 In terms of s 85(2).
26 Eg, those listed in s 84(2). See Minister for Justice and Constitutional Development v Chonco 2010 2
BCLR 140 (CC); 2010 4 SA 82 (CC) para 30. Any other interpretation would be inconsistent
with constitutional principle VI schedule 4 of the Interim Constitution which provided that ap-
propriate checks and balances should be provided for between the legislature, executive and ju-
diciary to ensure “accountability”.
27 Paras 2.2 and 2.5 below.
28 Mackintosh JP The British Cabinet (1977) 5.
Cabinet.” This principle developed in British constitutional law because the cabinet
had to present a unanimous decision to the ceremonial head of state and thus had
to accept collective responsibility for it. The general understanding is that individual
ministers who disagree with a particular cabinet decision must either support it to
29
the outside or resign.
As mentioned earlier, section 85 does not mean that all decisions on the powers
30
and duties of every member of the cabinet must be taken by the cabinet. However,
the principle of collective cabinet responsibility for all national powers and functions
does have an important effect on the functioning of the cabinet. Any member of the
cabinet may request any matter within his or her individual area of responsibility to
be dealt with by the cabinet. There may also be a standing arrangement that particu-
lar matters must always be submitted for consideration.
2 Heads of state and heads of government

2.1 Distinction 140
2.2 Appointment 142
2.3 Qualifications 143
2.4 Oath of office and remuneration 143
2.5 Term of office and removal from office 143
2.6 Acting heads of state and heads of government 145
2.7 Powers and functions 146
2.1 Distinction
In some systems, the offices of head of state and head of government are separate
and in others they are combined.
A feature of the Westminster system is that it distinguishes between the head of state
(in other words, the monarch or ceremonial state president) and the head of govern-
ment (in other words, the prime minister or premier). The office of head of
government or prime minister came into being at the beginning of the eighteenth
31
century when the British monarchs ceased to attend cabinet meetings and one
32
particular minister began to take charge. As discussed already, it is characteristic of
the Westminster system that the head of state holds a ceremonial office and acts
________________________
29 A considerable number of examples can be found where, in the case of the British cabinet
which usually consists of one party only, the rule was not followed. Hood Phillips O and Jack-
son P O Hood Phillips’ Constitutional and Administrative Law (1987) 315; Pollard AF and Hughes
D Constitutional and Administrative Law (1990) 110 state: “Normally, a public facade of unanim-
ity is maintained by ministers even in respect of Cabinet decisions with which they privately dis-
agree, their tension being made bearable by resort to devices such as ‘leaking’, on a non-
attributable basis, to the press the ministers’ actual views, or by advocating in public lectures,
for example, a particular policy generally contrary to one pursued by colleagues.” The applica-
tion of the rule is, of course, even more difficult when a cabinet is composed of members of
different parties – see Venter AJ “The executive: a critical evaluation” in De Villiers B (ed) Birth
of a Constitution (1994) 180.
30 Powers and functions of the President exercised and performed in his or her capacity as “head
of the national executive” are exceptions – see para 2.7.2.2 below.
31 Pollard and Hughes Pollard AF and Hughes D Constitutional and Administrative Law (1990) 11.
32 See Carpenter G Introduction to South African Constitutional Law (1987) 46. However, the office of
prime minister was not officially recognised before 1905 – Pollard AF and Hughes D Constitu-
tional and Administrative Law (1990) 12.
33
according to the advice of ministers. This separation of the offices of head of state
and head of government is not found only in so-called constitutional monarchies. It
is also found in many states with a republican form of government, for example,
Germany, India and Austria. The distinction was also made in South Africa until
1983. In a republic, the head of state symbolises the unity of the state and
ceremonially represents the state. As such, the separate office may fulfil a unifying,
34
national function. In the unique Swiss system, the office of head of state rotates
annually among the members of the cabinet. No one holds the office of head of
35
government. The cabinet jointly performs the functions of a head of government.
In a true presidential system (as in the United States of America), there is no dis-
tinction between the offices. The president is both head of state and head of gov-
ernment and the offices are integrated to such a degree that no distinction is made
between the powers and functions of the office bearer as head of state and as head
36
of government. However, it may also occur (as in France), that the head of state
has extensive powers, but that there is also an office of premier. In Namibia, the
37
President is both head of state and of government, but the Constitution provides
for a premier who co-ordinates the activities of the cabinet and advises and assists
38
the President in the exercise of government functions. In South Africa in 1983, the
offices of the ceremonial head of state and the head of government were combined
in the office of President. The fact that the President has also been political head of
government ever since explains why certain protective measures provided for in the
39
1961 Constitution, have been discontinued.
South Africa has a parliamentary executive with an executive president as its head.
In spite of the fact that the South African President is also the head of government,
and therefore a true executive president, there has been no conversion to a so-called
non-parliamentary executive (or presidential executive) as in the United States of
America. In a system with a parliamentary executive, the executive must enjoy the
support of the legislature to stay in power, whereas that is not the case with a non-
40
parliamentary (presidential) executive. In America, Presidents are not elected by
the legislature; they are elected for a fixed term by the electorate and cannot,
therefore, be forced to resign for political reasons by, for example, passing motions
________________________
33 Ch 3 para 3.2.
34 See in respect of the German office of president, Stern K II Das Staatsrecht der Bundesrepublik
Deutschland (1980) 187 ff.
35 The Swiss cabinet is a so-called Kollegialbehörde, an executive institution with a number of
members of which the chairperson does not enjoy higher status than the other members and
the chair rotates between them (usually annually) – Huber A Staatskunde Lexikon (1988) 13. See
with regard to the Swiss executive Rautenbach IM “Die Switserse uitvoerende gesag: konsen-
susregering sonder regeringshoof” 1989 TSAR 299.
36 In s 83(a) of the South African Constitution the President is described as “the Head of State
and head of the national executive”.
37 S 27(1) of the Namibian Constitution.
38 S 36 of the Constitution.
39 The violation of the honour and dignity of the State President was a serious offence (s 13 – see
ch 7 para 3.2); the remuneration of the State President could not be reduced during the term
of office (s 14(2)); and the State President could not, for political reasons, be forced to resign,
or dissolve parliament for a general election.
40 Blondel J and Thiébault JL The Profession of Government Minister in Western Europe (1991) 4 n 1. See
also on the South African presidency, Wiechers M “Die Suid-Afrikaanse presidentsamp – ’n konstitu-
sionele turksvy” 2008 TSAR 536; Malherbe R “Presidente, waarnemers en opvolgers: grondwetlike
reëlings vir woelige politiek” 2009 TSAR 340.
of no-confidence in them. Furthermore, the President and the ministers are not
members of the legislature. In contrast, South African Presidents are elected by
parliament, their terms of office are linked to the duration of parliament, ministers
are usually members of parliament, and the President and cabinet can by motions of
no-confidence be forced to resign. In France, the interesting position prevails that
the President and ministers are not members of parliament, but that the ministers
must resign if parliament adopts a motion of no-confidence in them. The President
is directly elected and is not affected by any motion of no-confidence.
2.2 Appointment
In constitutional or parliamentary monarchies, the office of head of state is heredi-
tary.41
In republics in which the offices of head of state and head of government are separated,
and in true presidential systems, different methods are used to elect or designate
the office-bearers.
The head of state may be directly elected by the voters (as in France and Namibia), or
by parliament (as in Germany). In Switzerland, all members of the cabinet take
turns to hold the office of head of state.
A head of government may be elected by parliament, either by both houses of a bi-
cameral parliament or by one house only as in Germany. The head of government
42
may also be appointed by the head of state. In this case, the appointment is usually
subject to the Westminster convention that the person must enjoy the support of the
majority in the legislature, or to a constitutional requirement that the appointment
must be confirmed by a motion of confidence by parliament in the designated head
of government.43
The South African President is elected by the National Assembly.44
The Chief Justice determines the time and date of the election and presides over the
45
election. No debate is permitted during the meeting. The President is elected by a
majority of the votes. If more than one candidate is nominated and no candidate
receives a majority of the votes, a procedure is followed to eliminate candidates in
subsequent ballots until one candidate obtains an absolute majority. If only two candi-
dates are nominated, or if only two remain after the others have been eliminated,
and they receive the same number of votes, a further election must be held within
seven days. An election to fill a vacancy must be held within 30 days after the vacancy
occurs.
When, after a general election, no party enjoys the support of the majority of the
members of the National Assembly, the parties will inevitably enter into negotiations
concerning the formation of a government by more than one party – a coalition
government. Which of the party leaders concerned would be the coalition group’s
presidential candidate, will undoubtedly always be one of the most important mat-
ters on which agreement has to be reached.
________________________
41 See eg, s 24 of the Dutch Constitution and s 29 of the Swaziland Constitution.

42 See s 102(1) of the Rumanian Constitution and s 35(1) of the Namibian Constitution.
43 See eg, s 102(3) of the Rumanian Constitution.
44 S 86 and schedule 3.
45 The Chief Justice may designate another judge to preside – s 86(2).
2.3 Qualifications
In the case of non-monarchical heads of state and heads of government including
executive presidents, certain qualifications for holding office are usually imposed.46
47
In South Africa, only a member of the National Assembly may be elected President.
The qualifications are therefore the same as for members of the National Assembly.48
A person elected President ceases to be a member of the National Assembly49 and
may not undertake any other paid work.50 A serving President may be elected for
51
only one more term.
2.4 Oath of office and remuneration

The South African President assumes office by swearing or affirming faithfulness to
the Republic and obedience to the Constitution before the Chief Justice.52
The salary, allowances and benefits of the President are determined in the same
way as those of certain other persons holding public office, namely by the national
executive (the cabinet) within a framework established in an act of parliament.53
Parliament may pass the act, and the executive may implement the act, only after
considering any recommendations of an independent commission established in
terms of national legislation. These provisions are contained in the entrenched Con-
stitution and parliament may not by resolution or by adopting an ordinary act, reduce
54
or increase the President’s salary.
2.5 Term of office and removal from office

Royal heads of state do not have terms of office.55 In all other cases in democratic
states, heads of state and heads of government have limited terms of office.
Section 88(1) of the South African Constitution provides that the President’s term
of office begins on assuming office and ends upon a vacancy occurring or when the
person next elected President assumes office.
________________________
46 Eg, a II(1)(5) of the American Constitution reads: “No Person except a natural born Citizen,
or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eli-
gible to the Office of President; neither shall any Person be eligible to that Office who shall
not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the
United States.”
47 S 86(1).
48 The person must, therefore, in terms of s 47(1) be qualified to vote for the National Assembly
and must not be subject to the disqualifications mentioned in that section (eg, a member of
another legislature, an unrehabilitated insolvent, or declared of unsound mind by a court).
49 S 87.
50 S 96(2)(a). The provision in s 81(3) of the Interim Constitution that the President may not
hold any other public office, was omitted from the new Constitution.
51 S 88(2). The period between an election to fill a vacancy and the next election after the
dissolution of the National Assembly is not regarded as a term.
52 S 87 and item 1 schedule 2.
53 S 219. See the Remuneration of Public Office-Bearers Act 20 of 1998 and the Independent
Commission for the Remuneration of Public Office-Bearers Act 92 of 1997.
54 The traditional Westminster way of expressing dissatisfaction with the actions of the prime
minister and other ministers is to propose a reduction in their salaries – Hood Phillips O and
Jackson P O Hood Phillips’ Constitutional and Administrative Law (1987) 314.
55 They serve until their demise or abdication.
In South Africa, the term of office of the President is the same as that of the parlia-
ment which elected the President. After every national election, the National As-
56
sembly elects a President at its first sitting. The term of the National Assembly is
57
five years, but it can be dissolved before the expiry of its term. This arrangement
differs from that of the United States of America, where the President is elected for
58
a fixed term of four years that does not coincide with the term of congress.
The President’s term of office also ends if a vacancy occurs when the President
resigns,59 dies or is removed from office.
The President’s term of office does not end automatically when the President
ceases to be the leader of the political party to which the President belongs. When
the President loses the support of the majority party in the National Assembly and
that party wishes to terminate the President’s term of office before the end of the
term of the National Assembly, a majority of the members of the Assembly (an
absolute majority) may pass a motion of no confidence in the President, in which
case the President and the ministers and deputy-ministers must resign.60 A new
President must then be elected, but if the National Assembly fails to fill the vacancy
within 30 days after the vacancy has occurred, the Assembly is dissolved for an elec-
61
tion of a new Assembly.
In Mazibuko v Sisulu the Constitutional Court had to decide on the constitutionality
of the Rules of the National Assembly regarding the procedure for tabling and
adopting motions of no-confidence in the national executive. The Court held that
the Rules were inconsistent with the Constitution to the extent that it omitted to give
effect to the duty of parliament to keep a check on the executive because there was
62
no specific procedure which provided for the effective tabling of these motions.
The Constitutional Court held in United Democratic Movement v Speaker of the National
Assembly that the Speaker of the National Assembly had a discretion to order that a
secret ballot procedure be used when the members of the Assembly vote on a mo-
63
tion of no-confidence in the executive.
Removal of office provides for the termination of the term of office of a head of
state or a head of government for serious non-political reasons. Removal from
64
office of the President is generally known as impeachment.
In South Africa, the grounds for removing a President from office are a serious vio-
lation of the Constitution or the law, serious misconduct, or inability to perform the
________________________
56 S 86(1).
57 Ss 49 and 50 – when the National Assembly resolves to dissolve after three years have passed
since its election, or the National Assembly fails to elect a new President within 30 days of a va-
cancy occurring. See ch 8 para 2.3.8.
58 See Blondel J Political Leadership (1987) 159 ff for a discussion of the advantages and disadvan-
tages of fixed terms and the limitation of the number of terms a person may serve.
59 The President may resign voluntarily or after a motion of no-confidence in terms of s 102(2).
60 S 102(2).
61 S 50(2).
62 2013 11 BCLR 1297 (CC), 2013 6 SA 249 (CC). For a discussion of this case, see Venter R
“Motions of no confidence: parliament’s executive check and checkmate” 2014 TSAR 407–418
and for a discussion of the rules that the National Assembly created following this judgment,
see Venter R “The new parliamentary rule on motions of no confidence: an exercise in legisla-
tive incompetence or judicial mockery?” 2015 TSAR 395-404.
63 2017 8 BCLR 1061 (CC), 2017 5 SA 300 (CC).
(CC) para 175; see paras 166–168 of the judgment for references to initiatives in the National
Assembly between 2014 and 2016 to impeach the South African President.
65
functions of office. The President may be removed from office on any of the grounds
by a resolution of the National Assembly supported by at least two thirds of its mem-
66
bers. The Constitutional Court held in Economic Freedom Fighters v Speaker of the
National Assembly that the National Assembly must decide whether grounds for
removal exist and that “any process for removing the President from office must be
preceded by a preliminary enquiry, during which the Assembly determines that a
listed ground exists”; the Court instructed the National Assembly to pass rules
regulating the removal of a President under section 89(1) of the Constitution.67
Anyone who has been removed from office on the ground of a serious violation of
the Constitution or the law, or serious misconduct, may not receive any benefits of
68
the office and may not serve in any public office thereafter.
2.6 Acting heads of state and heads of government

As a state should never be without a head of government, extensive arrangements
are necessary to ensure that at all times somebody can act as head of government.
Usually, these arrangements entail that the holder of another office may act, or that
somebody is appointed to act.
The South African Constitutions of 1961 and 1983 contained examples of both
methods.
69
The arrangement in the 1961 Constitution that the Vice State President, the speaker,
or a person nominated by the cabinet, in that order, acted for the head of state (the
State President), could not be followed in the 1983 Constitution, as the State President
then became political head of government as well. Before the commencement of the
1983 Constitution, the ceremonial State President designated another minister as act-
ing prime minister on the advice of the prime minister. In effect, the head of govern-
ment (prime minister) thus designated the acting prime minister. This arrangement
was retained in the 1983 Constitution in an adapted form – the State President himself
70
designated a cabinet member as acting State President.
The South African Constitution contains the following provisions in respect of an
acting President:71
An acting President has all the responsibilities, powers and functions of the Presi-
dent. An acting President acts as President:
• when the President is absent from the Republic; or
• when the President is otherwise unable to fulfil the duties of President; or
• during a vacancy in the office of President.
________________________
65 S 89(1). In terms of a II(4) of the American Constitution, the reasons for the impeachment of the
President are: “. . . Treason, Bribery, or other high Crimes and Misdemeanors.”
66 S 89(1).
(CC) paras 212–217.
68 S 89(2). In view of the consequences of removal from office in these instances, it could possibly
be argued that the procedure could be initiated when a person resigns in order to avoid
removal from office. Cf Tribe LH American Constitutional Law (1988) 290.
69 Before the abolition of the Senate in 1980 and the introduction of the office of Vice State
President, this was the President of the Senate. In the USA, a full-time office of Vice President
exists (a II(1)(1) and the 12th and 25th amendments to the American Constitution).
70 S 10 Act 110 of 1983.
71 S 90.
One of the following persons acts, in the order below, as acting President:
(a) The Deputy President.
(b) A minister designated by the President when, for example, the office of Deputy
President is vacant or the Deputy President is absent from the Republic or oth-
erwise unable to fulfil the duties of the office of President.
(c) A minister designated by the other members of the cabinet when, for example,
the President is unable to make an appointment in (b) above.
(d) The speaker when the other members of the cabinet in (c) above are unable to
designate an acting President when, for example, the President and the other
members of the cabinet have resigned because a motion of no-confidence in
72
them was passed. The speaker acts as acting President only until the National
Assembly designates one of its members as acting President.
2.7 Powers and functions

2.7.1 General 146
2.7.2 Statutory powers 148
2.7.3 Common-law powers 152
2.7.4 Confirmation of executive acts of a head of state 153
2.7.1 General
In principle, ceremonial heads of state do not have substantive powers.
73
In Britain, the head of state “formally” still has all the prerogatives and often in
written constitutions, the common-law powers of heads of state are depicted as
74
“powers of the head of state”. In practice, however, the head of state may never
exercise these powers at his or her own discretion.75 This general proposition is
qualified to a greater or lesser degree in various systems. In the Westminster system,
for example, the head of state retains, in theory, certain reserve powers in spite of
the fact that, for all practical purposes, they are exercised in accordance with the
76
advice of ministers. The mere fact that in a particular system more than one office-
bearer is involved in the exercise of the powers of the heads of state and of govern-
ment does not necessarily mean that one of them holds a purely ceremonial office.
The French President has extensive powers in spite of the existence of the office of
premier. In Namibia, the functions of head of government are performed by the
President despite the fact that there is also a premier.
Heads of government (including executive presidents who are also heads of state)
have all the powers conferred on them by legislation or the common law, and they
exercise these powers in accordance with the relevant directives of the constitution,
any other legislation and the common law.
________________________
72 In terms of s 102(2).
74 S 7 of the South African Constitution of 1961 provides a good example of the way in which the
powers of heads of state are listed. This pattern was, however, already followed as long ago as in
ss 45-50 of the Prussian Constitution of 1850 – see Stern K II Das Staatsrecht der Bundesrepublik
Deutschland (1980) 193–194.
75 See ch 3 para 3.3. See Alen A I Algemene Beginselen en Grondslagen van het Belgisch Publiek Recht
(1988) 176 in respect of the Belgian king.
The particulars differ considerably from state to state. Only the position of the South
African President is considered below.
Section 84(1) of the Constitution reads: “The President has the powers entrusted
by the Constitution and legislation, including those necessary to perform the func-
tions of Head of State and head of the national executive.”
The first part of the provision refers to the statutory powers of the President.77 The
provision does not refer expressly to any common-law powers which the President
may probably still have in terms of the transitional provisions of the present and
78
previous Constitutions.
The phrase “including those necessary to perform the functions of Head of State
and head of the national executive” means that, in accordance with the general
rules of South African administrative law, the President has certain implied powers
that are necessary for the exercise of the powers or functions expressly conferred or
79
assigned by law. These implied powers include the power to request advice and the
80
power to initiate the processes to obtain the advice.
Another interpretation of this provision could be that it generally empowers the
President to act coercively (to exercise a power) even if such actions do not relate to
any explicit statutory or common-law powers or functions. Such an interpretation
would be inconsistent with constitutional principle IV of the Interim Constitution
81
which provided that the new Constitution must be the supreme law of the land. A
constitution undermines its own supremacy when it provides for unspecified powers
outside the framework of implied powers which are necessary for the exercise of
expressly conferred powers and functions. The President derives no inherent powers
from the mere fact that the office is described as the head of state, head of the na-
82
tional executive and the commander-in-chief of the national defence force.
The President is individually, and collectively with the other members of the cabi-
net, accountable to parliament for the exercise of all his or her powers and the
________________________
77 See para 2.7.2.

78 See para 2.7.3.
79 In Minister for Justice and Constitutional Development v Chonco 2010 2 BCLR 140 (CC), 2010 4 SA
82 (CC) para 33 these powers were called “auxiliary powers”, and they were described as “nar-
row” – “only those powers reasonably necessary to property fulfil the functions in section 84(2)
are endowed”. Cf ss 104(4) and 156(5) which empower provincial legislatures and municipali-
ties to exercise any power concerning a matter reasonably necessary for, or incidental to, the
effective performance of their functions.
80 Minister for Justice and Constitutional Development v Chonco 2010 2 BCLR 140 (CC), 2010 4 SA 82
(CC) para 33.
81 In In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744
(CC) para 43 the Court held that save in the most compelling circumstances, courts should not
attach meanings to a provision of the Constitution which would have made it uncertifiable at the
time of the certification process, which amounts to saying that the Constitution must not be in-
terpreted to be inconsistent with the constitutional provisions in the Interim Constitution.
82 Ss 83(1) and 202(1). The powers which the President has in respect of, eg, the defence force
are regulated expressly in the Constitution and other laws such as the Defence Act. American
doctrines on implied powers of the President as head of the national executive (see Tribe LH
American Constitutional Law (1988) ch 4) cannot be applied to South Africa. Historical differ-
ences must be taken into account (In re: The National Education Policy Bill No 83 of 1995 1996 4
BCLR 518 (CC), 1996 3 SA 289 (CC) para 35). The American and South African presidential
offices do indeed both derive historically from the office of the British monarch, but there is
one important difference in respect of the historical origins of the two Constitutions: The
South African Constitution had to comply with a set of constitutional principles in terms of the
Interim Constitution, the American Founding Fathers wrote on a tabula rasa.
83
performance of all his or her functions. The President is also subject to the consti-
84
tutional provisions on the conduct of cabinet members.
2.7.2 Statutory powers

2.7.2.1 General 148
2.7.2 2 Powers which the President exercises as head of the national executive
together with the other members of the cabinet 149
2.7.2 3 Powers which the President does not exercise as head of the national
executive 150
2.7.2.4 Additional requirements for the exercise of certain powers 151
2.7.2.1 General
Although the most important powers of the President are described in the Con-
stitution, the Constitution is not the only source of the President’s statutory powers.
Other laws also confer powers on the President.
Section 84(2) of the Constitution includes a number of powers and functions, some
of which were formerly prerogatives of the monarch, and which were mentioned in
the 1961 Constitution as powers of the ceremonial head of state namely, the power
to assent to bills, to appoint commissions of inquiry, to appoint and receive diplo-
85
mats, to pardon offenders and to confer honours. The conferring of senior (“silk”)
status on senior advocates also forms part of the President’s power to confer hon-
86
ours. Although all these powers had been prerogatives, it makes no sense to con-
tinue to refer to them as “prerogatives”. The term “prerogatives” usually refers to
common-law powers only. The “prerogatives” in section 84(2) have now become
87
statutory powers which are in all respects subject to judicial control. The other
powers in section 84(2) are the referral of bills to the National Assembly and to the
Constitutional Court under section 79, the summoning of parliament under sections
51(2) and 63(2), the making of appointments under the Constitution or other
legislation other than the appointments the President makes as head of the national
executive, and the calling of a referendum under an act of parliament.
Although the Constitutional Court does not consider all actions of the President
to be “administrative action” for the purposes of the right to administrative justice in
88
the Bill of Rights, the Court held that the actions which are not administrative
actions must comply with legality as an element of the rule of law in section 1 of the
Constitution and with all other constitutional requirements, for example, that the
89
powers must be exercised personally by the President and be recorded in writing,
that rights in the Bill of Rights may not be violated, and that the President must act
in good faith and may not misconstrue the powers.90 In fact, the Constitutional
________________________
83 Para 1.3 above.

84 S 96 and para 4.4 below.
85 S 84(2)(f), (h), (i), (j) and (k).
86 Mansingh v General Council of the Bar 2014 1 BCLR 85 (CC), 2014 2 SA 26 (CC). For a discussion of
the case, see Rautenbach IM and Venter R “Road blocks on the silk route” 2014 TSAR 181–190.
(CC) para 116; President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) paras 10–
11; President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) para 148.
88 See ch 26 para 2.3 below.
89 See para 2.7.4 below.
90 Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of the RSA
2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC) paras 85–86; President of the RSA v SARFU 1999 10
BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 144–149. In Minister for Justice and Constitutional
Court has increasingly applied administrative law principles to the executive acts of
91
the President and other functionaries.
With regard to the way in which the President must exercise his or her powers,
attention must be paid to:
• rules in respect of powers which the President exercises as head of the national
executive;
• rules in respect of powers which the President does not exercise in that capacity;
and
• the meaning of certain expressions which are used to describe requirements for
the exercise of certain powers of the President.
2.7.2.2 Powers which the President exercises as head of the national executive together with the
other members of the cabinet
The Constitution entrusts the President with certain powers and functions as “head
of the national executive”. In all these instances, and in all other instances in which
ordinary legislation refers to the President as the “head of the national executive”,
decisions on the exercise of the powers concerned must be taken together with “the
92
other members of the cabinet”. The constitutional powers and functions of the
President as head of the national executive mainly concern making appointments.93
They also include the power to establish any intelligence service, other than intelligence
divisions of the defence force or police service, and to appoint a head of such a
94
service and any powers which the President may have as commander-in-chief of the
defence force95 in terms of other legislation.
How must the national executive authority be exercised by the President “together
with the other members of the cabinet”?
The South Africa Act of 1909 and the 1961 Constitution provided that the head of
96
state acted “with the advice” and “on the advice” of the cabinet. These phrases
________________________
Development v Chonco 2010 2 BCLR 140 (CC); 2010 4 SA 82 (CC) para 30 reference was made to
“rationally, in good faith, in accordance with the principle of legality, diligently and without
delay”. In Albutt v Centre for the Study of Violence and Reconciliation 2010 5 BCLR 391 (CC), 2010 3
SA 293 (CC) para 74 it was held that a decision to exclude consultation with the victims of po-
litically motivated offences in a special pardoning dispensation procedure for perpetrators who
did not participate in the Truth and Reconciliation Commission process, was not rational and
therefore not a constitutional exercise of the pardoning power in section 84(2)(j).
91 Rautenbach IM “Rasionaliteit: die President se eie administratiefreg” 2013 Litnet Akademies
(Regte) 27-44; Govender K “Judicial review of the pardon power in section 84(2)(j) of the Con-
stitution of the Republic of South Africa” 2012 Stell L Review 490-506. See particularly on the
power to appoint commissions of inquiry, Blauw L “The remedial action of the ‘state capture’
report in perspective” 2017 PER/PELJ 1-46 and President of the RSA v Office of the Public Protector
2018 2 SA 100 (GP).
92 S 85(2).
93 Namely, judges of the Constitutional Court – s 174(3) and (4); four members of the Judicial
Service Commission – s 178(l)(j); the national director of public prosecutions – s 179(1)(a);
the military command of the defence force – s 202(1); the national commissioner of the police
service – s 207(1); chiefs of intelligence services – s 209(2); an inspector for the civilian moni-
toring of intelligence services – s 210(b); and members of the Financial and Fiscal Commission
– s 221(1). S 82(4)(b) of the Interim Constitution (the President may confer permanent com-
missions upon members of the national defence force and cancel such commissions) will apply
until it is repealed by an ordinary act of parliament – item 24(1) schedule 6.
94 S 209(1) and (2). In Masetlha v President of the RSA 2008 1 BCLR 1 (CC) para 77 it was held that
the power to appoint includes the power to dismiss.
95 S 202(1).
96 S 13 of the South Africa Act and s 16(1) of the 1961 Constitution.
expressed the Westminster convention that, apart from certain exceptional cases,
the ceremonial head of state must follow the advice of members of the cabinet. After
the offices of head of state and head of government had been combined in the 1983
Constitution, the Westminster convention could no longer be followed. The
expression “in consultation with Ministers who are members of the Cabinet” was
97
used. By using this expression, the legislature has attempted to describe the joint
action of the head of government and the members of the cabinet as it exists in the
Westminster system. The expression “in consultation with the Cabinet” was used in
98
the Interim Constitution, and it was expressly provided that “in consultation”
meant that the functionary who had to be consulted had to concur,99 but if that func-
tionary was a body of persons, that body (in this case, the cabinet) had to concur in
accordance with its own decision-making procedures.100 Apart from the rule that the
cabinet was to be involved when the President took decisions, the expression “in
consultation with the Cabinet” contained no procedural directives. The expression
“together with the other members of the Cabinet” in the Constitution has the same
meaning.
The expression “together with the other members of the Cabinet” indicates that
the decisions on the powers and functions of the President as head of the national
executive are normally taken at cabinet meetings. “Normally” because, in order to
reach a joint decision, the President could also consult with the other members of
the cabinet in other ways than at formal cabinet meetings. The degree of consent
needed from the other members of the cabinet depends on the decision-making
101
procedures followed in the cabinet. For that, no definite legal directives exist.
Whether the President may ignore the viewpoints of all (or some of) the other
members of the cabinet is determined by the President’s political position within the
framework of his or her individual accountability to parliament. The President is the
only member of the cabinet who is directly elected by parliament and the President
cannot, without political risk, ignore members of the cabinet who represent particular
interest groups in the party that elected the President. The interest groups to which
such ministers belong could begin to subvert the influence of the President in par-
liament.
2.7.2.3 Powers which the President does not exercise as head of the national executive
These powers include the powers in section 84 which are referred to in paragraph
2.7.2.1. The President is not required to take decisions concerning the exercise of
102
these powers together with the other members of the cabinet. The President
exercises these powers like any minister to whom powers have been entrusted by legislation.103
________________________
97 S 19(2)(b). Different opinions were expressed on the meaning of the phrase. See Basson DA
and Viljoen HP Suid-Afrikaanse Staatsreg (1988) 56; Booysen H and Van Wyk DH Die ’83-
Grondwet (1984) 59 79; Rautenbach IM and Malherbe EFJ “Die grondwet 1984–1989” 1989
TSAR 479–481; Van der Vyver JD Die Grondwet van die Republiek van Suid-Afrika (1984) 14.
98 S 83(3) of the Interim Constitution.
99 The Interim Constitution provided for instances in which the President had to act “in
consultation” with other functionaries (eg, in s 99(3)). There are no such cases in the Consti-
tution.
101 S 82(3) of the Interim Constitution provided that the cabinet could delegate its consultation
function with reference to any particular power or function of the President to a minister or
ministers. This can now be done in terms of s 238(a) of the new Constitution.
(CC) para 37.
Although the courts consider the execution of most of these powers not to constitute
administrative action, but as sui generis executive action, they are subject to judicial
review on more or less the same grounds as administrative action.104 The President is
both individually and collectively, with the other members of the cabinet, account-
able to parliament for the exercise of these powers.
All requirements for the exercise of the powers must be complied with. According
to the general principles of administrative law, the President may not “abdicate” any
105
of these powers. In some instances, the requirements are of such a nature that the
President has a very limited discretion on how and when the powers may be exer-
cised. The President must, for example, dissolve the National Assembly if the As-
sembly has adopted a resolution to that effect and three years have passed since the
106
Assembly was elected. More examples are referred to in the next paragraph.
2.7.2.4 Additional requirements for the exercise of certain powers
Certain standard expressions are used to describe some of these requirements. They
are used both in respect of powers which the President exercises as head of the
national executive, and in respect of powers which are not exercised in that way.
The following are the most prominent examples:
(a) Powers which the President exercises “after consulting” other functionaries
“After consulting” means that the President must consult another functionary or
institution, but that, after the consultation, the President is not bound by the recom-
107
mendation. This requirement applies to the appointment of the Chief Justice and
Deputy Chief Justice,108 the President and Deputy President of the Supreme Court of
109 110
Appeal, the other members of the Constitutional Court, and four members of
111
the Judicial Service Commission. This requirement does not necessarily mean that
the President, having consulted with the other functionary or institution, has a
personal discretion in making the appointments. The President exercises these
powers as head of the national executive together with the cabinet, and in the case
of the other judges of the Constitutional Court, appointments must be made from a
list of names prepared by the Judicial Service Commission.
When the implied powers which the President may exercise in terms of section
84(1) include actions by the President to obtain information and advice from other
functionaries and institutions, the President is not bound by the advice he or she
112
receives.
________________________
104 See para 2.7.2.1 above.

105 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2001 1 SA 1 (CC) paras 39–41.
106 S 50(1).
107 S 233(4) of the Interim Constitution provided that “after consultation with” means that the
decision “shall be taken in good faith after consulting and giving serious consideration to the
views of such other functionary”. See also Minister of Health v New Clicks SA (Pty) Ltd 2006 1
BCLR 1 (CC), 2006 2 SA 311 (CC).
108 After consulting the Judicial Service Commission and the party leaders in the National
Assembly – s 174(3).
109 After consulting the Judicial Service Commission – s 174(3).
110 After consulting the Chief Justice and the party leaders in the National Assembly – s 174(4).
111 After consulting the party leaders in the National Assembly – s 178(1)(j).
(CC) paras 38 and 39: “The President must accordingly retain the sole ability to remove his
or her instruction, bypass the process . . . or transfer the preliminary consideration elsewhere.
. . . The preparatory steps to be taken . . . fall within the auxiliary powers of the President in
the decision-making process. They are neither separate from, nor external to, that process.”
(b) Powers which the President must exercise “on the recommendation of”, “on the
advice of”, as “approved/proposed/nominated by”, and as “called for” by other
functionaries or institutions
These expressions cannot mean the same as “after consultation with”, in terms of
which the President is not bound to follow the advice or recommendation. If other-
wise intended, the legislature would have used the same expression. The President is
therefore bound to act as advised or according to the recommendations received.
The following examples may be mentioned:
(i) A declaration of a state of national defence must be approved by parliament.113
(ii) Except in certain instances, the President appoints all judges on the advice of the
Judicial Service Commission.114 In all previous Constitutions, the expression “on the
advice of” meant that the advice had to be followed.
(iii) The President appoints acting judges on the recommendation of the minister of
115
justice, and the public protector, auditor-general and the members of the Human
Rights Commission, the Commission for Gender Equality and the Electoral Com-
116
mission on the recommendation of the National Assembly.
(iv) The President removes a judge from office if the Judicial Service Commission
has made a finding in this regard and the National Assembly calls for that judge to be
removed by a majority of at least two-thirds of its members.117
(v) The President appoints some of the members of the Financial and Fiscal Com-
mission as nominated by the executive councils of the provinces and by organised
local government.118
2.7.3 Common-law powers

The only common-law powers which may still exist are those in relation to acts of
state. Acts of state are executive actions primarily concerned with foreign relations,
such as the acquisition of foreign territory, and the recognition of other states and
119
governments. The President retains these common-law powers in terms of the
transitional provisions of the Interim Constitution and the present Constitution – all
law which was in force when the Constitutions took effect, continues in force until
120
amended or repealed, and to the extent that it is consistent with the Constitution.
There is no long-standing practice in South African constitutional law of assigning
the exercise of the powers relating to acts of state to a minister.121 It may be taken for
________________________
113 S 203(3).
114 S 174(6). The exceptions are the appointment of the Chief Justice and Deputy Chief Justice
and other judges of the Constitutional Court and the President and Deputy President of the
Supreme Court of Appeal. “On the advice of the Judicial Service Commission” in respect of
the temporary suspension of judges in s 177(3) is also an exception, because the President
“may” act on the advice.
115 S 175(1). The minister of justice acts with the concurrence of the Chief Justice and the President
of the Supreme Court of Appeal.
116 S 193(4).
117 S 177(2).
118 S 221(1)(b) and (c). See also ss 174(4) and 178(1)(e) and (f) in regard to some of the
members of the Constitutional Court and the Judicial Service Commission.
119 See in respect of acts of state Booysen H Volkereg (1989) 365 ff. With regard to the position in
Britain see Munro CR Studies in Constitutional Law (1987) 159–160.
120 S 229 of the Interim Constitution and item 2(1) schedule 6 of the new Constitution.
121 Unlike the position in respect of passports before the enactment of the South African
Passports and Travel Documents Act 4 of 1994 – see Boesak v Minister of Home Affairs 1987 3 SA
665 (C).
granted that the President may not exercise these important powers in any way other
than “together with the other members of the cabinet”.
In terms of section 6(4) of the 1983 Constitution, the State President retained all the
prerogatives that a State President had before the commencement of that Constitu-
tion. The most significant powers in this regard not already incorporated in statutes
(and thus becoming statutory powers), were the powers to issue passports, appoint
commissions of inquiry and perform acts of state. The Interim Constitution and the
present Constitution contain no provision in terms of which the President retains the
prerogatives of the previous head of state. The prerogative to appoint commissions of
inquiry has now been re-enacted in the Constitution and has thus become a statutory
122
power. The common-law powers in respect of passports are now contained in the
South African Passports and Travel Documents Act 4 of 1994 and they are exercised by
the minister of home affairs.
2.7.4 Confirmation of executive acts of a head of state

All formal acts by a ceremonial head of state must be countersigned by ministers.
Countersigning confirms that the acts are performed as recommended by the ministers,
and that they are accountable for them.123 Executive presidents are themselves
responsible for their decisions and the countersigning may only serve to confirm
the participation of other members of the cabinet in decisions of the president
that affect the functions of those members.
The South African President is an executive president and collectively accountable
with the other cabinet members for all national executive acts. The countersigning
of all decisions by the President is therefore not required. The Constitution provides
that a decision by the President must be in writing if it is taken in terms of legislation
or has legal consequences; and that a written decision must be countersigned by
another cabinet member if that decision concerns a function assigned to that other
cabinet member.124 A decision of the President only takes effect at public notification
which is usually by way of notice in the Government Gazette.125
3 Deputy heads of government

Deputy heads of government are found in Europe, most often in coalition cabinets
such as those of Italy and Belgium.126 The South African Constitution provides for a
127
Deputy President. The President appoints the Deputy President from among the
members of the National Assembly.128 The Deputy President must assist the President
129
in the execution of the functions of government, and is responsible for the powers
130
and functions assigned by the President. Like any minister, the Deputy President
may therefore be entrusted with the administration of any legislation or a state
________________________
122 S 84(2)(f). See on the common law in respect of passports Sachs v Dönges NO 1950 2 SA 265
(A), Tutu v Minister of Internal Affairs 1982 4 SA 571 (T) and Boesak v Minister of Home Affairs
1987 3 SA 665 (C); and in respect of commissions S v Naudé 1975 1 SA 681 (A).
123 See Carpenter G Introduction to South African Constitutional Law (1987) 44–45.
124 S 101(1) and (2).
125 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2001 1 SA 1 (CC) para 44.
126 Venter AJ “The executive: a critical evaluation” in De Villiers B (ed) Birth of a Constitution
(1994) 181.
127 S 91(1).
128 Ss 91(2) and 91(3)(a). The qualifications are therefore the same as for members of the
National Assembly in terms of s 47(1).
129 S 91(5).
130 Ss 91(1) and 92(1).
131
department. The Deputy President is a member of the cabinet and is subject to the
constitutional provisions on the accountability and conduct of members of the
132 133
cabinet. The President may dismiss the Deputy President.
4 Ministers
4.1 General 154
4.2 Appointment and dismissal 155
4.3 Qualifications 156
4.4 Powers 156
4.5 Deputy ministers 157
4.1 General
Ministers are appointed to administer state departments, and sometimes to perform
other functions that are not related to the administration of a state department.
If a minister is appointed to administer one or more state departments, the minister
has a so-called portfolio. A portfolio comprises all the statutory and other functions
and powers pertaining to the department(s) for which a person has been appointed.
If they are appointed to perform only functions other than the administration of a
department, they are ministers without portfolio.
A so-called cabinet reshuffle is brought about by a change of portfolios when the
President by proclamation transfers the administration of legislation or any power or
134
function entrusted by legislation to a member of the cabinet to another member.
In Democratic Alliance v President of the Republic of South Africa; In re: Democratic Alliance
v President of the Republic of South Africa the North Gauteng High Court ordered the
President to furnish reasons for his decision to reshuffle the cabinet, following a very
sudden cabinet reshuffle on 31 March 2017 which included the replacement of the
135
then Minister of Finance, Pravin Gordhan. On appeal, the Supreme Court of
Appeal however refrained from confirming the High Court’s decision and argued
that the matter has become moot and any judgment made on the issue would have
136
no practical effect. .Ministers are members of the highest joint executive body in
137
the state.
The dual function of ministers, namely as heads of departments and as members
of the cabinet, has particular implications. In the first place, it links the daily ad-
ministration of the state at national level directly to the highest policy-making execu-
138
tive body. Secondly, it puts the entire national administration under political
control; in a system with a parliamentary executive authority this is because the
________________________
131 See para 4.1 below. The President may assign any power or function of the Deputy President
to another cabinet member when the Deputy President is absent from office or is unable to
exercise that power or perform that function – s 98.
132 Ss 91(1), 92 and 96.
133 S 91(2).
134 S 97.
135 [2017] 3 All SA 124 (GP), 2017 4 SA 253 (GP).
136 President of RSA v Democratic Alliance (664/17) [2018] ZASCA 79 (31 May 2018).
137 In Britain, not all ministers serve in the cabinet. There are about 100 ministers and junior
ministers of which only about 20 are cabinet members (Mackintosh JP The British Cabinet
(1977) 411 477; Pollard AF and Hughes D Constitutional and Administrative Law (1990) 107.
138 Pollard AF and Hughes D Constitutional and Administrative Law (1990) 111.
ministers are members of the directly elected parliament and are responsible to
parliament for their actions and, in a system with a non-parliamentary executive
authority, because the President, who appoints the ministers, is directly elected by
the voters.
4.2 Appointment and dismissal

Ministers are formally appointed and dismissed by the ceremonial head of state or
the executive president.
There are exceptions to this general proposition. In Switzerland, for example, the
federal ministers are elected individually by a joint sitting of the houses of parlia-
139
ment.
In the Westminster system, the convention is that the head of state appoints the
leader of the majority party in the lower house as the head of government (prime
minister) and then appoints and dismisses the other ministers on the advice of the
head of government. In effect, therefore, the other ministers are appointed and
dismissed by the head of government. There are no constitutional limitations on the
recommendations which the head of government may make in this regard. In all
systems, however, there are informal customs and political constraints, for example,
that particular regions, interest groups, or factions of the majority party must be
140
represented. If no single party commands a majority in the lower house, the minis-
ters are appointed from the ranks of those parties able to conclude a government
pact and, in so doing, jointly form a majority in the lower house. A so-called coalition
cabinet is then formed. Until the commencement of the Interim Constitution, the
Westminster approach was followed in South Africa for the most part.
It also occurs 141
that the Constitution (apart from the qualifications that ministers must
comply with), contains directives on who must be appointed as ministers. Thus, the
discretion of the head of state in the appointment and dismissal of ministers is re-
stricted formally. The Belgian Constitution provides, for example, that, excluding the
head of government, the 142 cabinet must consist of an equal number of French- and
Dutch-speaking members. In143Switzerland, no more than one person from any par-
ticular canton may be elected.144
The South African Interim Constitution provided for
a government of national unity and contained extensive provisions on the appointment
and dismissal of ministers.145
The provisions in the Constitution in respect of the appointment and dismissal of
ministers follow an adapted version of the Westminster approach. The President
146
appoints the ministers, assigns their powers and functions, and may dismiss them.
In this instance, the President does not act as head of the national executive and,
therefore, not together with the other cabinet members. Because the President is
head of state and head of government, the Westminster convention which provides
________________________
139 S 175(2) of the Swiss Constitution.

140 Cf Thatcher M The Downing Street Years (1993) 25: “Choosing a Cabinet is undoubtedly one of
the most important ways in which a prime minister can exercise power over the whole con-
duct of government. But it is not always understood how real are the constraints under which
the choices take place . . . [T]here must not generally be more than three Cabinet members
in the Lords . . . In addition one has to achieve distribution across the country – every region
is easily convinced it has been left out. You must consider the spectrum of party opinion.”
142 S 86bis of the Belgian Constitution.
143 S 175(3) of the Swiss Constitution.
145 Ss 88(3)–(6) and 92(2) and (3) of the Interim Constitution.
146 S 91(2).
that the head of state appoints ministers on the advice of the head of government
cannot be followed. Subject to certain informal customs and political considerations
that may apply, the South African President therefore has a free discretion in ap-
pointing and dismissing ministers. For example, the President may appoint persons
who do not belong to the majority party even when the President’s party is the
majority party in the National Assembly. The President may appoint any number of
ministers from among the members of the National Assembly, and no more than
two from outside the Assembly.147 The President may dismiss a minister when the
President has no longer confidence in the minister, or when the minister turns out
to be incapable of performing her or his duties.
4.3 Qualifications
In the case of a parliamentary executive authority, ministers are normally members
of parliament and must comply with the qualifications for members of parliament.
In the case of a non-parliamentary executive authority, this is normally not the case.
In the United States of America, a minister may not be a member of the legislative
authority. On the other hand, it is a feature of a parliamentary executive that
ministers must be members of parliament. This principle has also been applied in
South Africa since 1910.
The Constitution provides that all ministers, with the exception of at most two,
148
must be appointed from among the members of the National Assembly. Ministers
appointed from the National Assembly must comply with the qualifications for
Assembly members.149 The Constitution does not refer to the qualifications of minis-
ters appointed from outside the Assembly.150
4.4 Powers
Ministers possess all the powers assigned to them by law, and they exercise them in
accordance with the provisions of the Constitution, any other legislation and the
common law.
In South Africa, ministers have no common-law powers. All powers and functions
are exercised and performed in terms of the Constitution and other legislation.
In Von Abo v President of the RSA, the following was said about the powers of minis-
ters:
“Once the powers and functions have been assigned, the Deputy President and Minis-
ters are responsible for the executive powers and functions assigned to them. …
[O]nce Cabinet members are assigned powers and functions by the President they are
not mere vassals of the President. They bear the duty and the responsibility to fulfil the
duties and functions so assigned which in practice take the form of political and ex-
151
ecutive leadership of specified state departments.”
The Constitution provides that members of the cabinet must act in accordance with
a code of ethics prescribed by national legislation.152 In particular they may not:
________________________
147 S 91(3)(b) and (c). In terms of s 88(1) of the Interim Constitution, no more than 27 minis-
ters could be appointed.
148 S 91(3)(b) and (c).
149 S 47(1) and see ch 8 para 2.3.6.
150 These provisions came into operation on 1 May 1999. Item 9(2) schedule 6.
151 Von Abo v President of the RSA 2009 10 BCLR 1052 (CC), 2009 5 SA 345 (CC) para 40.
152 S 96. The Executive Members’ Ethics Act 82 of 1998 regulates the detail. Until 30 April 1999
ministers administered their portfolios in accordance with the policy determined by the cabi-
• undertake any other paid work;
• act in any way that is inconsistent with their office;
• expose themselves to any situation involving the risk of a conflict between their
official responsibilities and private interests; or
• use their position or any information entrusted to them to enrich themselves or
improperly benefit any other person.
When a minister is unable to fulfil the duties of her or his office, any other minister
may be appointed temporarily to act in that minister’s stead.153
4.5 Deputy ministers

Deputy ministers are appointed to assist the members of cabinet. They are not mem-
bers of the cabinet.
The President may appoint deputy ministers from among the members of the
154
National Assembly and may dismiss them. Deputy ministers are subject to the con-
stitutional provisions that apply to members of the cabinet in respect of attendance
of the National Council of Provinces, continuation in office after elections, oaths and
affirmations, their conduct, and their resignation after a motion of no-confidence in
the President.155
5 Cabinets
5.1 General 157
5.2 Composition 158
5.3 Functions and procedures 158
5.1 General
In every modern democracy, there is a body in whom the final responsibility for the
executive authority at national level is vested and which consists of the head of
government and ministers.
Although in pursuance of the British example, this body is commonly known as the
156 157
cabinet, various states use other designations, such as ministers’ council, executive council,
158 159
federal council and federal government.
If the term “cabinet” is to be regarded as distinctive of the British parliamentary execu-
160
tive authority, it cannot then be used in respect of the American President and the
persons appointed by the President as heads of departments. Regardless of the fact
that the latter are not directly responsible to the legislature, they are fairly generally
considered to be the counterparts of British ministers.
________________________
net – item 9(2) schedule 6 and s 96(4) in item 6 annexure B schedule 6. Even without such a
provision this would be an important incidence of collective accountability in terms of the
Constitution.
153 S 98.
154 S 93 which came into operation on 1 May 1999 – item 9(2) schedule 6.
155 Ss 66(1), 95, 94, 96, 102(2).
156 Eg, in Belgium.
157 Eg, in s 16 of the South African 1961 Constitution.
158 Bundesrat in Switzerland.
159 Bundesregierung in Germany.
160 See Blondel and Thiébault The Profession of Government Minister in Europe (1991) 1 and 5.
In the British system, cabinets developed over many centuries from the meetings of
161
heads of state with their advisers. The cabinet acquired its modern form during
the nineteenth century. Formally, all executive actions are performed by the monarch,
but the monarch does not attend cabinet meetings and executes all executive actions
in accordance with the recommendations of ministers.
5.2 Composition
162
A cabinet is usually composed of the head of government and the ministers.
The South African cabinet consists of the President, as the head of the cabinet, the
163
Deputy President and the ministers.
5.3 Functions and procedures

In general the functions of a cabinet are:
• the determination of national policy (most often in the form of bills submitted to
parliament);
• control over the national state administration in accordance with the policy
approved by parliament; and
• the continuous co-ordination of the activities of national executive bodies.164
165
The functions formulated above correspond to the functions which Blondel identi-
fies as general government functions, namely “. . . listening to, but also rejecting a
number of policy proposals . . . elaborating and developing practical policies for the
nation and seeing that these policies are consistent with each other . . . overseeing the
administration in its role of implementation of policies as well as in its role of manager
of public services”.
Usually, cabinets as such do not possess any statutory or common-law powers, and
normally their functions are not set out in constitutions.166 The Namibian and Swiss
Constitutions are examples of exceptions.167 The South African Constitution is also
an exception. Section 85 sets out as part of a comprehensive description of the
168
national executive authority, three typical cabinet functions:
• developing and implementing national policy;
• co-ordinating the functions of state departments and administrations; and
• preparing and initiating legislation.
________________________
161 For an overview of the development, see Mackintosh JP The British Cabinet (1977) and Blon-
del J and Müller-Rommel F (eds) Cabinets in Western Europe (1988) 18–19. Blondel J The Or-
ganization of Governments (1982) provides an informative comparative overview of the
historical development of the composition and different forms of “government”.
162 For a comparative overview of the composition of cabinets in Western Europe, see the
different contributions in Blondel J and Müller-Rommel F (eds) Cabinets in Western Europe
(1988)
163 S 91(1).
164 Report of the Machinery of Government Committee (1918) Cd 9230 5 as quoted by Hood
Phillips O and Jackson P O Hood Phillips’ Constitutional and Administrative Law Hood Phil-
lips O and Jackson P O Hood Phillips’ Constitutional and Administrative Law (1987) 304.
165 Blondel J The Organization of Governments (1982) 24–25.
166 Blondel J in Blondel J and Müller-Rommel F (eds) Cabinets in Western Europe (1988)5.
167 S 40 of the Namibian Constitution, ss 180–187 of the Swiss Constitution and s 73 of the
Japanese Constitution.
168 S 85(2)(b), (c) and (d).
Developing and implementing national policy, and preparing and initiating legis-
lation are not exclusively cabinet functions; they can also be performed by individual
ministers and departments. Again, section 85(2) merely indicates in whom the final
169
responsibility for the performance of these functions vests.
Usually, cabinet procedure, for instance in respect of decision-making, is not describ-
ed in constitutions or other laws.
The German Constitution is an exception. It provides that the functions of the cabi-
net are performed under the direction of the Chancellor (the head of government),
in accordance with rules of procedure approved by the President (the head of
170
state). These rules of procedure, inter alia, provide that decisions must be taken by
171
majority vote.
Blondel states in general: “Constitutions are less precise . . . on the organisation of
cabinets – it is said that decisions are expected to be taken collectively while some
superior role is sometimes recognised to the Prime Minister with individual minis-
ters sometimes fully responsible with respect to the operation of their departments.
What this suggests is that constitutions at best recognise a problem rather than
provide a solution – this problem being that there has to be a leader – but also that
the cabinet deserves its name only if the major decisions are taken collectively, while
further difficulty arises from the fact that ministers are responsible for particular
sectors of the government.”172
The South African Constitution does not contain provisions on cabinet proce-
dure.173
6 The public service

In the exercise of executive authority, a government is assisted by an administration,
or public service, consisting of officials who serve in various departments and other
divisions.
The South African Constitution provides that the public service must be regulated
174
by national legislation. The Constitution, nonetheless, contains certain provisions
175
in this regard. The public service must loyally execute the lawful policies of the
government of the day; employees are entitled to a fair pension as regulated by
national legislation; and no employee of the public service may be favoured or
prejudiced only because that person supports a particular political party or cause.
________________________
169 See para 1.3 above.

170 S 65 of the German Constitution. See also ss 176(1) and 177(1) of the Swiss Constitution.
171 S 24(1) of the Geschäftsordnung der Bundesregierung. See Stern K II Das Staatsrecht der Bundesre-
publik Deutschland (1980) 312.
172 In Blondel J and Müller-Rommel F (eds) Cabinets in Western Europe (1988) 6.
173 Until 30 April 1999 there were rules on who had to preside at meetings and it was generally
stated that the cabinet had to function with consideration of the consensus-seeking spirit un-
derlying the concept of a government of national unity, and the need for effective govern-
ment. Item 9(2) schedule 6 and s 91(14) and (15) in item 4 annexure B schedule 6.
174 A 197(1). See the Civil Service Act 103 of 1994, as amended by Act 86 of 1998. The Constitu-
tional Court held that the functioning and structuring of the public service in the provinces
were included – Premier, Western Cape v President of the RSA 1999 4 BCLR 382 (CC), 1999 3 SA
657 (CC).
175 S 197.
The public service forms part of public administration which includes all organs
176
of state and public enterprises. The Constitution provides that public administra-
tion must be governed by the democratic values and principles enshrined in the
Constitution.
These values and principles are described in section 195 of the Constitution and
they include a high standard of professional ethics; efficient, economic and effective
use of resources; development-orientated attitudes; impartiality, fairness and equity
without bias; attention to public needs and public participation in policy-making;
accountability and transparency; development of human resources; broad represen-
tation of the population with employment and personnel management practices
based on ability, objectivity, fairness, and the need to redress the imbalances of the
past. Like the general foundational values of the Republic in section 1 of the Consti-
tution these values and principles do not as such provide the source of directly
177
enforceable rights.
Certain components of, and functionaries in, the public service are specifically
dealt with in the Constitution. The Constitution contains extensive provisions on
178
security services in general, the defence force, the police and intelligence services.
Sometimes, public servants must report to parliament (for example, in terms of
the Public Finance Management Act 1 of 1999), but, as explained in paragraph 1.3
above, the political responsibility for their actions vests in the President and the
ministers.
The organisation of the public service and the management of all personnel matters
is a specialised task which must be entrusted to a specific body.
The Constitution provides for an independent and impartial Public Service Commis-
sion to promote the values and principles of public administration in the public
179
service. The Constitution contains extensive provisions on the powers and
functions of the Commission, its composition and the appointment and dismissal of
180 181
its members. The Commission is accountable to the National Assembly.
________________________
176 S 195(2).
177 Britannia Beach Estate v Saldanha Bay Municipality 2013 11 BCLR 1217 (CC) paras 15, 16;
Chirwa v Transnet Ltd 2008 3 BCLR 251, 2008 4 SA 367 (CC) para 65; IDASA v ANC 2005 10
BCLR 995 (CC), 2005 5 SA 39 (CC) para 21.
178 Ss 198–210, item 24(1) schedule 6 and annexure D schedule 6. In Masetlha v President of the
RSA 2008 1 BCLR 1 (CC) the power of the President to appoint and dismiss heads of the in-
telligence services was discussed.
179 S 196. See Olivier M “The new Labour Relations Act and the public service – a constitutional
perspective” 1996 TSAR 160-169, concerning the provisions of the Interim Constitution.
180 S 196 of the text, approved by the Constitutional Assembly in May 1996, provided only for an
independent Public Service Commission to promote the values and principles of public ad-
ministration in the public service, and which would be regulated by national legislation. The
Constitutional Court refused to certify s 196, because it conflicted with constitutional princi-
ple XXIX “in that the independence and impartiality of the Public Service Commission is not
adequately provided for and safeguarded” – In re: Certification of the Constitution of the RSA,
1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 482.
181 The Commission and provincial Commissions referred to in ch 13 of the Interim Constitu-
tion continued to function in terms of that chapter and the legislation applicable until they
were abolished by an ordinary act of parliament – item 24(2) schedule 6.
7 The Constitution and general rules for executive and administrative

acts
7.1 General 161
7.2 The Constitution and empowering legislation 162
7.3 Constitutional provisions on delegation 163
7.1 General
There are general rules which apply to all executive and administrative acts. General
administrative law comprises these rules.
Usually, the Constitution and all other laws that assign powers to executive and
administrative organs contain directives on how the powers must be exercised.
These rules are called specific administrative law. They apply to specific organs, powers
or functional areas. There are also general rules that apply to all administrative acts
and which are called general administrative law. The rules of general administrative law
also affect, amongst other matters, the content of the powers in terms of which they
182 183 184
are executed, the procedure to perform them, their form and the purpose for
185
which they may be performed.
Although administrative law is usually regarded as a specialised field which is not
dealt with extensively in books on constitutional law, no watertight distinction can be
186
drawn between constitutional law and administrative law. So, for example, the right
to just administrative action in the Bill of Rights has a tremendous influence on the
way in which executive and administrative organs must exercise their powers and
perform their functions. This right is discussed in Part 2 chapter 26. Here we only
briefly pay attention to the influence of the Constitution upon legislation that em-
powers executive organs and to provisions in the Constitution on delegation.
________________________
182 In common law, the expressly implied powers of an executive organ may include certain
implied powers, namely powers that are necessary or reasonably required for the exercise of the
powers expressly conferred, and powers that are incidental to such powers. There are also
common-law rules according to which (a) the power to regulate does not include the power
to prohibit, (b) there may be no interference with the judicial function and the jurisdiction
of the courts, and (c) no actions may be performed with retrospective effect.
183 The common-law rules of natural justice which are contained in ss 3, 4 and 6(2)(b) and (c) of
the Promotion of Administrative Justice Act 3 of 2000. See para 7.3.4 below.
184 The requirement that administrative actions must be clear and intelligible. See Wiechers M
Administrative Law (1985) 203–208; s 3(2)(b)(cc) of the Promotion of Administrative Justice
Act 3 of 2000.
185 An administrative power may not be exercised for a purpose for which it has not been
conferred. See Wiechers M Administrative Law (1985) 228–235; s 6(2)(e)(i) of the Promotion
of Administrative Justice Act.
186 Sometimes it is said that constitutional law pertains to higher national bodies (eg, heads of
state and of government and ministers), whereas administrative law deals with all other
administrative bodies and subordinate legislatures. However, the President and ministers are
subject to the rules of administrative law like all other executive bodies. As administrative law
comprises directives for the actions of executive bodies, no watertight distinction can be
drawn between constitutional and administrative law. Until now, attempts in this regard have
not been successful. See the overview of Baxter L Administrative Law (1989) 50–52.
7.2 The Constitution and empowering legislation

Before 1994, the common-law rules of administrative law applied only to the extent
that they were not qualified by the legislation that empowered and regulated a parti-
cular administrative act.
Since the commencement of the entrenched, justiciable South African Constitution,
the empowering statute is no longer the most authoritative source of rules on how an
administrative act must be performed.
The Constitution has the following effect on empowering legislation:
(a) Executive and administrative organs of state have only those powers that are assigned to
187
them by law and no legislature may authorise executive organs of state to act in conflict with
the Constitution. In particular, executive organs of state may limit the rights in the Bill
188
of Rights only if the limitations comply with the provisions of the Constitution and
189
no legislation may curtail or abolish this constitutional duty.
(b) The Constitution limits the extent of a discretion that may be conferred for the limitation of
rights in the Bill of Rights. The powers conferred on executive bodies quite often
include the exercise of a discretion on how the action is performed. The executive
body may, in other words, itself decide how to realise the objective of a particular
authorisation. The requirement in section 36(1) of the Constitution that rights may
only be limited in terms of law of general application means that legislatures may
confer an administrative discretion to limit rights. Without such discretion, effective
government and a fair application of general rules to particular circumstances would
190
be impossible. However, the Constitution imposes certain restrictions as to the
extent of the discretion which a legislature may confer.
• A law will be invalid if it involves a complete transfer of power to an executive body
to limit some or all of the rights in the Constitution. The justification for the provi-
sion that rights may be limited only in terms of the law is that the legislature as representa-
tive of the electorate, and nobody else, must take the initial decision to limit rights. Section
191
36 entrenches this principle. Conferring an unqualified discretion could also
be an infringement of constitutional principles that do not form part of the Bill
192
of Rights, for example, the independence of the judiciary.
• If it is accepted that, on the one hand, a legislature may not completely transfer
the power to limit rights to an executive body, but, on the other hand, may in-
deed confer a discretion to limit rights, the next question must be: how many
________________________
1458 (CC), 1999 1 SA 374 (CC) para 58.
188 Ss 7(3) and 36.
189 Even when the enabling legislation complies with the provisions of the Constitution, actions
performed in terms of that legislation must also be examined to determine whether they are
consistent with the Constitution. In particular, this will be the case where the enabling legisla-
tion confers a discretion to limit rights. See (b) below.
190 Dawood; Shalabi; Thomas v Minister of Home Affairs 2000 8 BCLR 837 (CC), 2000 3 SA 936 (CC)
para 53.
191 A complete transfer of the power to limit rights has not even been envisaged in s 37 in the
case of a state of emergency. Legislation enacted in consequence of a declaration of emer-
gency may derogate from the Bill of Rights only to the extent that the derogation is strictly
required by the emergency (s 37(4)(a)) and both the declaration and extension of a state of
emergency and legislation or other action in terms of the declaration are subject to judicial
control (s 37(3)).
192 See S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) paras 93–95.
193
particulars must an enabling statute contain when a discretion is conferred? This is de-
termined by taking into account the factors in section 36(1) concerning the “na-
ture of the limitation” and “the relation between the limitation and its purpose”.
The extent of a discretion to limit rights constitutes part of the nature of a limita-
tion. The extent of the discretion may be disproportionate to the effects and
purposes of the limitation. The more far-reaching a limitation is, the more guide-
lines must be provided by the legislature on how the discretion must be exer-
194
cised.
• The scope of a discretion may also be limited by the requirement that only rules
which are accessible, comprehensible and predictable qualify as “law” for the
195
purposes of section 36. Laws which afford executive organs a very wide discre-
tion to limit rights do not provide sufficient information to know beforehand
196
how the rights may be limited.
7.3 Constitutional provisions on delegation

There is a general rule of administrative law according to which a person or organ
197
on which a power is conferred must itself exercise that power.
According to the common-law rule delegatus delegare non potest, executive bodies may
not delegate their powers, unless the empowering legislation authorises them to do
so. If a person or organ may freely delegate its powers to somebody else, it would
undermine another rule, namely that powers conferred must be exercised by a body
198
with a particular status, knowledge or responsibility. The Promotion of Adminis-
trative Justice Act provides that a delegation of power must be authorised by the
empowering provision.199 In most statutes, ministers and heads of departments, for
example, are authorised to delegate their powers.
However, it has always been accepted that an implied authorisation to delegate may
exist. Different factors have to be taken into account to determine whether an
200
implied authorisation exists:
• The extent of the powers delegated.
• The importance of the organ performing the function itself.
________________________
193 See Ynuico Ltd v Minister of Trade and Industry 1995 11 BCLR 1453 (T) in which opinions were
expressed on this matter with regard to the limitation clause in s 26(2) of the Interim Constitution.
para 47. The German Federal Constitutional Court has developed certain rules in this regard
– see De Ville JR “Die legaliteitsbeginsel in die staats- en administratiefreg onder ’n nuwe
grondwetlike bedeling – ’n vergelykende toekomsperspektief” 1993 SA Public Law 71 ff.
195 President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) para 102. See in respect
of the European Court of Human Rights, Van Dijk P and Van Hoof GHJ Theory and Practice of
the European Convention on Human Rights (1990) 581–582. A brief overview of the Canadian le-
gal position is provided in Ynuico Ltd v Minister of Trade and Industry 1995 11 BCLR 1453 (T)
1468–1470.
196 In Dawood; Shalabi; Thomas v Minister of Home Affairs 2000 8 BCLR 837 (CC), 2000 3 SA 936
(CC) para 47, the Court referred to broad discretionary powers to limit rights within the con-
text of the clearness and accessibility of legal rules.
197 Wiechers M Administrative Law (1985) 51–56 and 186–187; Baxter L Administrative Law (1989)
432–444.
198 Wiechers M Administrative Law (1985) 183–187; Baxter L Administrative Law (1989) 426–432.
199 S 6(1)(a)(ii).
200 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2006 11 BCLR 1255 (CC), 2007 1
SA 343 (CC) paras 85 and 127. See also Baxter L Administrative Law (1989) 435 ff on the first
five criteria.
• The complexity of the decisions to be taken
• The impact of the exercise of the power.
• Practical considerations.
• The identity of the parties and the relationship between them. It is more readily
accepted that an implied authorisation to delegate exists between organs within
the same hierarchy than between bodies involved in a relationship in which an
organ from a particular state department exercises some degree of control over
the actions of an official in another department.201
Unlike the common-law prohibition on delegation, the Constitution now contains a
202
general authorisation of executive organs to delegate. Any executive organ may
delegate any power or function in terms of legislation to any other executive organ,
if such authorisation is consistent with the legislation in terms of which the power is
203
exercised or the function is performed.
How can it be determined whether a delegation is consistent with the legislation in
terms of which the power is exercised or the function is performed? In essence, this
question amounts to asking whether the enabling legislation expressly or implicitly
authorises delegation.
• When legislation expressly authorises delegation, the delegation is consistent
with the legislation.
• When legislation does not expressly authorise delegation, the considerations to
determine whether an implied authorisation to delegate exists (mentioned above),
may be employed to determine whether the delegation is consistent with the legis-
lation.
Despite the different approach, the rules on delegation have therefore not really
been changed by the Constitution.
8 Control over executive bodies

8.1 Public control 164
8.2 Parliamentary control and control by institutions supporting democracy 165
8.3 Judicial control 166
8.1 Public control

The public exercises control through the press and other media, public congresses
and debates, and a large variety of interest groups, such as consumer groups,
churches, vocational groups and cultural institutions.204 Public control applies, of
________________________
201 In the latter case, the higher body may indeed control certain actions of the lower body, but
the lower body does not perform the actions in the name of the higher body, and the higher
body may not at any time intervene to set aside the actions of the lower body. Within the
same hierarchy, all acts are performed in the name of the higher body, it carries full respon-
sibility for them and it may at any time amend or set aside the actions of the lower body. For
an illustration of the application of the guidelines, see Aluchem (Pty) Ltd v Minister of Mineral
and Energy Affairs 1985 3 SA 616 (T).
202 S 238(a).
203 S 238(b) provides that any executive organ of state may exercise powers or perform functions
on an agency or delegation basis for any other executive organ. The capacity to exercise del-
egated powers and functions is, of course, also subject to the qualification in s 238(a) that the
delegation must be consistent with the enabling law.
204 Wiechers M VerLoren van Themaat Staatsreg (1981) 249 ff.
course, to all organs of state and not only to executive organs. Freedom of expression
and freedom of the press, as far as the actions of the government are concerned, are
205
of major importance in any democratic state. Of equal importance is the right of
the individual freely to associate, to form associations and political parties, and to
jointly form views on matters of public interest. These rights are now guaranteed in
the South African Bill of Rights.206
8.2 Parliamentary control and control by institutions supporting democracy

It is the constitutional responsibility of the members of parliament, as elected repre-
sentatives of the voters, and of parliament as an institution, to control the actions of
the executive on behalf of the electorate.207 The Constitution provides that the
National Assembly must provide for mechanisms to ensure that all national execu-
tive organs are accountable to the Assembly, and to maintain oversight of the
exercise of national executive authority.208 In addition to parliamentary debates, the
following forms of parliamentary control over the executive authority exist:
(a) Question time in the houses of parliament, during which members may put
questions to members of the executive on any aspect of the exercise of their powers
and functions.209
(b Parliamentary committees which often investigate and report on some or other
aspect of the activities of the executive.210
(c) The tabling of subordinate legislation (such as proclamations and regulations), and
of reports by the executive in order to keep parliament informed, assuming that
parliament may reject subordinate legislation by the executive. The Constitution
provides that proclamations, regulations and other instruments of subordinate legis-
lation of the national and provincial executives must be accessible to the public;
legislation may specify the way in which, and the extent to which, these instruments
must be tabled in and approved by the legislatures concerned.211
(d) Approval of the budget and discussion of the different budget votes, which in general
comprise an evaluation of the actions by the executive and individual ministers.212
(e) Consideration of the reports by the auditor-general on the accounts, financial state-
213
ments and financial management of executive organs. The auditor-general is dealt
with in chapter 9 of the Constitution as a state institution supporting democracy.
The office of the auditor-general is discussed in chapter 6 paragraph 4 above. The
auditor-general reports publicly the outcome of the audits to legislatures with a
direct interest in the audits or any other authority identified in national legislation.
The reports must be made public.214
________________________
205 For a comprehensive discussion of the role of freedom of expression in a democracy, see
Venter R Demokrasie en die Reg op Vryheid van Uitdrukking (2016 thesis UJ).
207 S 42(3) of the Constitution. See also Murray C and Nijzink L Building Representative Democracy:
South Africa’s Legislatures and the Constitution (2002) 87–112.
208 S 55(2).
209 See ch 8 para 2.5.6.4.
210 Ch 8 para 2.5.6.6.
211 S 101(3) and (4) and s 140(3) and (4). See Kriel RR “Codifying pre-adoption procedures for
subordinate legislation in South Africa” 1997 SAJHR 354.
212 Ch 8 para 2.5.7.3.
213 S 188(3).
(f) A form of parliamentary control which has developed in the Scandinavian
countries, and has been introduced in quite a number of states, is the office of
ombudsman. In the United Kingdom, the incumbent is called the parliamentary
commissioner. The ombudsman is a person or institution which, at the request of
any person, may investigate and report to parliament on any aspect of government
administration. Parliament considers the report and if necessary may take appropri-
ate steps. The office of advocate-general was established in South Africa in 1979 and
215
functioned as an ombudsman. The office of public protector was established by the
216
Interim Constitution and it has been retained in the new Constitution as a state
institution supporting democracy.217 The office of the public protector is discussed in
chapter 6 paragraph 4 above. Although the South African public protector submits
reports to parliament, it is not a parliamentary advisory institution like an ombuds-
man or parliamentary commissioner in certain other systems where parliament, after
considering the reports, decides which steps, if any, should be taken. Section
182(1)(c) of the South African Constitution provides that the public protector “may
take appropriate remedial steps” and the Constitutional Court held that these steps
bind everybody, including parliament, unless the steps are set aside on review by a
218
court of law.
(g) The President may appoint commissions of inquiry,219 inter alia to investigate any
matter in connection with the executive authority. The reports by such commissions
are considered by parliament.
8.3 Judicial control

The courts have jurisdiction to control the actions of executive organs.
In South Africa, judicial control over administrative acts is exercised by the ordinary
courts and not by special administrative tribunals as, for example, in France.
In the past, the control powers of the courts could be curtailed to a large extent
when a very wide discretion was conferred by the legislature on executive bodies.
Since the coming into operation of the Interim Constitution, the powers of legisla-
tures to afford a wide discretion to executive organs to limit rights in the Bill of
220
Rights, have been constitutionally limited. In this regard, it must be emphasised
that although it is generally accepted that the courts should not pronounce upon
the desirability or effectiveness of an administrative decision, no administrative body
may ignore the principles of administrative law on account of any power it may have
to exercise a discretion.
It also occurred that parliament made laws in which the powers of the courts to
control administrative actions were expressly excluded. Usually, such provisions read
________________________
215 Act 118 of 1979.

216 Ss 110–113 of the Interim Constitution.
217 Ss 182, 183 and 193 and item 20(1)(a) of the Constitution. See Nel SS “’n Evaluering van die
amp van openbare beskermer” 1996 SA Public Law 160; Madonsela TN “The role of the Pub-
lic Protector in protecting human rights and deepening democracy” 2012 Stell L Review 4-15
218 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly 2016 5 BCLR 618 (CC), 2016 3 SA 580 (CC). Also see the decision in South
African Broadcasting Corporation Soc Ltd v Democratic Alliance [2015] 4 All SA 719 (SCA), 2016 2
SA 522 (SCA), where the Supreme Court of Appeal came to the same conclusion. For a dis-
cussion of these cases, see Venter R “The executive, the public protector and the legislature:
‘The lion, the witch and the wardrobe’?” 2017 TSAR 176–189.
219 S 84(2)(f).
220 Para 7.2 (b) above.
that “no court of law shall be competent to pronounce upon the validity” of a par-
221
ticular administrative act. The power of the legislature to exclude or limit judicial control
has now been restricted by the Bill of Rights. The Constitution guarantees a right to have
any dispute that can be resolved by the application of law decided in a court, or
222
where appropriate, another independent and impartial tribunal or forum. Parlia-
ment may limit this right only if it complies with the requirements of the general
limitation clause.223
If somebody suffers damages as a result of executive action, damages can be
claimed from the state by means of a civil suit.224
Many crimes are created by subordinate legislation and often non-compliance
with administrative decisions is made an offence. A person who is prosecuted for
such offences could well contend that the particular subordinate legislation or
decision does not comply with the requirements for valid administrative actions. The
rules of administrative law used by the courts to control the actions of the executive
225
authority, therefore often feature in criminal cases.
Within the framework of administrative law, the following possibilities exist:
(a) The Promotion of Administrative Justice Act provides that any person may institute
proceedings before a court or a tribunal for the judicial review of administrative
action to which the Act applies.226 The court or tribunal may grant any order that is
just and equitable, including setting aside the action; granting a temporary interdict
or relief; declaring rights; and instructions to give reasons, to act or to refrain from
acting in a particular way, or to take a decision.227
(b) Common-law review applies to actions that are not covered by the Promotion of
228
Administrative Justice Act. Common-law remedies include orders to set aside or
correct actions and interdicts to enforce or to prohibit certain actions.229
(c) Appeal is a statutory remedy. Legislation may provide that actions performed in
terms of that legislation may be reviewed by the courts on specified grounds. These
grounds may cover all aspects pertaining to an action, only the facts, or only certain
legal aspects. The particulars of an appeal depend on the particulars of the legislation.
________________________
221 However, such provisions were never successful in excluding judicial control completely. The
courts did not interpret such express provisions to oust their jurisdiction completely and
found that they could always intervene on the basis of mala fides or manifest absence of juris-
diction. Wiechers M Administrative Law (1985) 280–285; Baxter L Administrative Law (1989)
725–732; Hoexter Baxter Supplement 117–119.
222 S 34 – see ch 27 para 1. The impartiality and independence of administrative tribunals may
now be scrutinised in terms of s 34.
223 S 36 of the Constitution. See ch 18.
224 Wiechers M Administrative Law (1985) ch 7; Baxter L Administrative Law (1989) ch 15. See the
remarks in ch 27 para 1.4(b) on time limits with regard to the institution of litigation against
the state. See Fose v Minister of Safety and Security 1997 7 BCLR 851 (CC), 1997 3 SA 786 (CC) in
respect of damages when constitutional rights have been infringed.
225 See Baxter L Administrative Law (1989) 705–706.
226 S 6(1).
227 S 8.
228 The definition of administrative action to which the Act applies is narrower than the com-
mon-law concept.
229 See Wiechers M Administrative Law (1985) 263–270; Baxter L Administrative Law (1989) ch 17.
A declaration of rights may be requested if there is a legal dispute or uncertainty about a par-
ticular administrative action. Initially this was a common-law remedy, but it is now governed by
s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959.
(d) The Constitution provides that a court with jurisdiction in the matter must
declare an action invalid when it is inconsistent with the Constitution and the court
230
may make any order that is just and equitable. There is a rule that, if possible,
cases must be decided on grounds other than constitutional grounds and constitu-
tional review will probably only apply to instances where the matter is not covered by
review in terms of common-law and statutory review.231 Constitutional review of
executive and administrative action does not only apply to the enforcement of the
right to administrative justice. Executive and administrative acts that limit any other
right must comply with the provision in respect of that right and its limitation.
9 Advice to the executive

Due to the extent and complexity of government functions, governments use advisory
bodies on a large scale.
Apart from the fact that the executive authority can appoint experts to the public
service to advise it, informal or statutory bodies composed of experts exist in most
states to advise the executive authority.
The Constitution provides for the establishment of various functionaries and insti-
tutions which may advise executive bodies on the execution of their functions and
powers. The following are examples:
(a) The Judicial Service Commission may advise the national government on any matter
relating to the judiciary or the administration of justice.232
(b) The Financial and Fiscal Commission makes recommendations on financial mat-
ters to parliament, provincial legislatures and any other authorities determined by
national legislation.233
(c) The Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities may advise and report on issues concerning the rights of
234
cultural, religious and linguistic communities.
(d) The Commission for Gender Equality may advise and report on issues concerning
gender equality.235
________________________
230 S 172. See ch 10 para 5.5.

231 See ch 10 para 5.5(a).
232 S 178(5). See ch 10 para 3.2 on the composition of the Commission.
233 S 220(1). See the Financial and Fiscal Commission Act 98 of 1997.
234 S 185(2). See Act 19 of 2002.
235 S 187(2). See the Commission for Gender Equality Act 39 of 1996.
Chapter 10
Judicial authority
1 Judicial authority 169

2 Judicial bodies – the courts 170
3 The independence and impartiality of the courts 171
4 The right of access to the courts and to fair and public hearings 176
5 Judicial authority over constitutional matters 176
6 Control over judicial bodies 196
1 Judicial authority
Judicial authority is the power to resolve disputes that can be resolved by the appli-
cation of the law by determining what the law is and how to apply it to a particular
instance. Judicial authority is exercised by organs of state that are not parties to the
disputes, namely the courts.
Adjudication is a function that concerns solving disputes. In all communities, a need
exists to have disputes settled by persons who are not involved in the disputes.
Although individuals may involve other individuals and private institutions to resolve
their disputes by the application of law, since time immemorial, adjudication has
been a typical government function. The courts do not resolve all disputes. They
1
only resolve disputes that are capable of being resolved by applying the law.
Since adjudication comprises actions by means of which rules of law are interpreted
and applied, it may easily be distinguished from legislative acts in terms of which
rules of law are enacted, amended or repealed. However, it is generally accepted that the
courts also make law. Through interpretation, application and providing remedies,
the rules of statutory law, common law and traditional law may be adapted, supple-
2
mented and developed. However, judicial law-making always has existing rules of
law as a point of departure; it is achieved through the process of “interpretation,
3
application and providing remedies”. It is a different and more limited law-making
function than that of legislatures, whose primary function is to continuously review
4
and, whenever necessary, adapt or replace law.
The performance of executive and administrative actions most often involves that
executive and administrative organs interpret and apply legal rules to concrete
situations. A police officer who is about to arrest somebody for theft, must know the
elements constituting the crime of theft, and must decide whether the actions of the
suspect amount to theft; an official who issues licences must know the legal
________________________
1 Cf s 34 of the Constitution; para 4 below.

2 Ss 8(3), 39(2) and 173 of the Constitution recognise the fact that the courts develop common
law.
3 For a thorough analysis of the difference, see John Hart Ely “Another such victory: constitu-
tional theory and practice in a world where courts are no different from legislatures” 1991 (vol
77) Virginia Law Review 833.
4 See ch 8 para 2.4 above.
169
requirements for such issuing and must decide whether an applicant has complied
with them. However, the interpretation and application of legal rules by the courts
and executive bodies differ in two significant respects:
• Executive bodies usually apply rules of law that apply to themselves as well (the
suspicion which a police officer must have that a crime has been committed is a
condition for the exercise of the officer’s power to arrest). They are themselves
parties to the relationships to which the legal rules are applied. In contrast,
courts are independent parties who interpret and apply rules of law to relation-
5
ships in which they are not involved.
• The interpretation and application of law by executive bodies is, in principle,
always reviewed by the courts.6 In contrast, a decision by the court is “final” in the
sense that the decision may be reviewed only by a higher court and, in principle,
7
not by any other government body.
The majority of constitutions expressly determine in whom the judicial authority is
vested. Section 165(1) of the South African Constitution provides that the judicial
authority of the Republic is vested in the courts. This provision constitutionally
recognises the judicial authority as the third branch of the trias politica.
2 Judicial bodies – the courts

Every state has a structure of judicial bodies organised on geographical, specialised,
or other grounds.8
The South African court structure is as follows:
9
• The Constitutional Court is the highest court of the Republic.
• The Supreme Court of Appeal decides appeals from the high court or courts with
10
similar status, except when an act of parliament provides otherwise.
• The high court consists of divisions as determined by an act of parliament.11
________________________
5 See para 3 below on the independence of the courts.

7 The “review” of decisions of the courts by legislatures takes place when the legal rules in
question are adapted or repealed as part of the normal legislative process and not by review of
the particular cases and decisions. For an example in which parliament was transformed into a
“high court of parliament” for the review of Appeal Court decisions on the validity of laws, see
Minister of the Interior v Harris 1952 4 SA 769 (A).
8 Shetreet S “Judicial independence: new conceptual dimensions and contemporary challenges”
in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 597–598 defines judicial bod-
ies as follows: “The judiciary could be defined as the organ of government not forming part of
the executive or the legislature, which is not subject to personal, substantive and collective
controls, and which performs the primary function of adjudication. The function of adjudica-
tion can be exercised by direct resolution of disputes, between private parties, between state
organs, or between a private party and a state organ. Adjudication could also be by way of re-
view of adjudicative decisions of tribunals outside the ordinary court system.”
9 Ss 166(a) and 167(3)(a). Constitutional matters include issues involving the interpretation,
protection or enforcement of the Constitution – s 167(7).
10 Ss 166(b) and 168; previously the Appellate Division of the Supreme Court – item 16(5)(b)
schedule 6.
11 S 166(c); previously the provincial or local divisions of the Supreme Court or the Supreme
Courts or general divisions of homelands – item 16(5)(c) schedule 6. These courts have juris-
diction in all matters not assigned to another court by an act of parliament.
Chapter 10 Judicial authority 171
12
• Lower courts.
• Other courts whose jurisdiction is determined in terms of an act of parliament.
These courts include courts of a status similar to the high court or lower courts.13
Examples of these courts are regional courts;14 traditional courts;15 small claims
16
courts; and a number of other courts established for particular matters, for ex-
ample, special high courts, labour courts, water courts, alimony courts, equality
courts and family courts.
The composition, powers and procedures of the courts are not extensively regulated
in constitutions.
Usually, full particulars on the composition and functioning of all courts in a state
are not included in a constitution. This pattern is departed from when a constitution
provides for a constitutional court, for directives concerning the independence of
the courts, and for criminal and civil procedural guarantees in a bill of rights. The
South African Constitution is a case in point. All the particulars relating to the
composition, powers and procedures of the courts are nevertheless not regulated in
17
the Constitution. That is done in other laws, for example the Superior Courts Act,
18 19
the Criminal Procedure Act, the Magistrates’ Courts Act and the Constitutional
20
Court Complementary Act. Such laws, and the applicable common law rules, are
studied as part of criminal and civil procedure.
3 The independence and impartiality of the courts

3.1 General 171
3.2 Personal independence 172
3.3 Functional independence 174
3.4 Impartiality 175
3.1 General
The independence of the courts is an incidence of the separation of powers 21 and
constitutions often contain provisions in this regard.22
Many constitutions contain specific guarantees on, for example, the management
and administration of the courts, the terms of office of judges, their salaries and
pensions, disciplinary action against members of the bench, and their appointment
________________________
12 S 166(d) of the Constitution and s 2(1)(a)–(f) Act 32 of 1944. See S v Van Rooyen 2002 8 BCLR
810 (CC), 2002 5 SA 246 (CC) paras 75–80 for an overview of the development of magistrates’
courts.
13 S 166(e) of the Constitution.
14 S 2(1)(g) of the Magistrates’ Court Act 32 of 1944.
15 S 20(1) of the Black Administration Act 38 of 1927.
16 Small Claims Court Act 61 of 1984.
17 Act 10 of 2013.
18 Act 51 of 1977.
19 Act 32 of 1944.
20 Act 13 of 1995.
21 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) paras 60, 70–72; SA Associa-
tion of Personal Injury Lawyers v Heath 2001 1 BCLR 77 (CC), 2001 1 SA 883 (CC) paras 25, 26.
22 For a useful summary, see Shetreet S “Judicial independence: new conceptual dimensions and
contemporary challenges” in Shetreet S and Deschênes J (eds) Judicial Independence (1985)
597–598 in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 611 ff.
23
and dismissal. In other constitutions the guarantees are of a more general and
indirect nature; for example, guarantees in respect of the separation of powers, and
judicial control over all government actions. The weakest form of constitutional
24
guarantee is a mere formal confirmation of the independence of the courts. The
particulars of such a general guarantee must then be supplemented by ordinary
legislation.
The South African Constitution contains a general provision that the judicial authority
is independent, impartial and subject only to the Constitution and other law.25
No person or organ of state may interfere with the functioning of the courts and all
organs of state must, through legislative and other measures, assist and protect the
26
courts to ensure their independence and impartiality. As will become evident, the
Constitution also contains provisions on the majority of other aspects relating to the
independence of the courts. The Constitution therefore falls into the first category
mentioned above.
The independence of the judiciary comprises various aspects. Usually a distinction
27
is made between the personal and functional independence of the courts.
3.2 Personal independence

The personal independence of the judiciary means that the appointment, terms of
office, and conditions of service of judicial officers are not controlled arbitrarily by
other government bodies.
The personal independence of the judiciary may be protected against the executive
authority in ordinary legislation and against the legislature in entrenched and
justiciable constitutions.
Often, different procedures for the appointment of members of higher and lower
28 29
courts are followed. It is highly exceptional that the judiciary itself appoints judges.
Examples of appointment procedures are formal appointment by the head of state
on the recommendation of the minister of justice, and appointment by an executive
________________________
23 See Van de Vijver L (ed) The Judicial Institution in Southern Africa (2006) for an overview of the
most important characteristics of the independence of the courts and their application in sev-
eral African states.
24 S 68(1) of the 1983 Constitution did not even go this far as the judicial authority of the Repub-
lic was merely conferred on the Supreme Court and the provision was not entrenched.
25 S 165(2). In Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western
Tembuland Regional Authority 1998 3 BCLR 314 (Tk) 325–328 it was held that traditional courts
in terms of the Regional Authority Courts Act 13 of 1982 (Tk), the members of which perform
both executive and judicial functions, did not violate the corresponding guarantee in s 96(2)
of the Interim Constitution; the court applied a subjective test for judicial impartiality in hold-
ing that the absence of the separation of powers in traditional African law is not being per-
ceived in those systems as being biased or prejudicial and “there seems . . . to be no reason
whatsoever for the imposition of the Western conception of the notions of judicial impartiality
and independence in the African customary setting” (327).
26 S 165(3) and (4).
27 See De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) paras 59, 73 and 159;
Mahomed I “The independence of the judiciary” 1998 SALJ 658–667.
28 As such, the difference does not mean that the procedure in respect of the lower courts is
unconstitutional; the functions of a particular court and its hierarchical position are taken into
account – S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 23.
in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 624.
30
president subject to approval by the legislature. In a number of cases a special body
31
is composed for the purpose either of making the appointments itself, or of rec-
32
ommending persons to be appointed to the executive.
In South Africa, the Judicial Service Commission plays an important role in the
appointment and dismissal of judges.
The appointment of the Chief Justice, Deputy Chief Justice and other judges of the
Constitutional Court is discussed in paragraph 5.1 below. The President and Deputy
President of the Supreme Court of Appeal are appointed by the President, together
with the other members of the cabinet, after consulting the Judicial Service
33
Commission and all the other judges are appointed by the President on the advice of
34
the Judicial Service Commission.
The Judicial Service Commission consists of three representatives of the judiciary (the
Chief Justice, the President of the Supreme Court of Appeal and a Judge President
designated by the Judges President), one of the executive (the minister of justice),
four legal practitioners (nominated by the professions and appointed by the Presi-
dent), six members of the National Assembly, at least three of whom must be members
of opposition parties, four members of the National Council of Provinces supported by
the vote of at least six provinces, one law teacher designated by the law teachers of the
university law faculties, and four persons designated by the President together with
members of the cabinet after consulting the leaders of all the parties in the National
35
Assembly.
All judicial officers must be appropriately qualified and must be fit and proper
persons.36 When judicial officers are being appointed, the need for the judiciary to
reflect broadly the racial and gender composition of South Africa must be con-
37
sidered.
Usually, the terms of office of judges are limited by age. It is exceptional that judges
are appointed for life. The Judges’ Remuneration and Conditions of Employment
Act embodies a comprehensive arrangement which means in essence that they may
38
serve only until the age of 75 years. The term of judges of the Constitutional Court
39
is referred to below.
________________________
30 As in the case of federal judges of the USA. For a concise overview of foreign appointment
procedures, see S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 107.
31 See the examples mentioned by Shetreet S “Judicial independence: new conceptual dimen-
sions and contemporary challenges” in Shetreet S and Deschênes J (eds) Judicial Independence
(1985) 669 n 133.
32 Eg, in Namibia – ss 82(1) and 85(1) of the Namibian Constitution.
33 S 174(3).
34 S 174(6). Acting judges are appointed by the minister of justice after consultation with the
senior judge of the court on which the acting judge will serve – s 175(2). Objections against
this procedure were rejected in In re: Certification of the Constitution of the RSA, 1996 1996 10
BCLR 1253 (CC), 1996 4 SA 744 (CC) paras 125–132
35 S 178. When considering matters specifically relating to a division of the high court, the Judge
President of that division and the premier of the province concerned, or an alternate desig-
nated by each of them, are also members of the Commission.
36 S 174(1). In In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC),
1996 4 SA 744 (CC) para 122, it was stated: “These are objective criteria subject to constitu-
tional control by the courts . . .” See eg, with regard to the qualification of magistrates ss
9(1)(b) and 10(a) of the Magistrates’ Courts Act.
37 S 174(2).
38 Ss 3 and 4 Act 47 of 2001.
39 Para 5.1 below.
The circumstances under which judicial officers vacate their offices before the ex-
piry of their terms may also influence the independence of the judiciary. The Con-
stitution provides that the President removes a judge from office only if
• the Judicial Service Commission finds that the judge suffers from an incapacity, is
grossly incompetent, or is guilty of gross misconduct; and
• the National Assembly calls for the judge to be removed by a resolution sup-
40
ported by at least two-thirds of its members.
All other judicial officers are appointed in terms of an act of parliament which must
ensure that appointments, promotions, transfers, dismissals or disciplinary steps
41
take place without favour or prejudice. These matters are regulated in the
Magistrates’ Court Act 32 of 1944 and the Magistrates Act 90 of 1993.42
The manipulation of the salaries of judicial officers is another way in which they can
be put under pressure.43 In 1701, already, the British Act of Settlement provided that
judges be appointed at a fixed salary.44 The South African Constitution provides that
45
the salaries, allowances and benefits of judges may not be reduced. The Judges’
Remuneration and Conditions of Employment Act regulates these matters. In terms
of this law, the remuneration of judges is determined by the President. The pro-
clamation in this regard must be tabled in parliament and lapses if parliament
rejects it during the same session of parliament.46
3.3 Functional independence

The functional independence of the courts means that in the exercise of their
47
powers they are subject only to the law.
This aspect of judicial independence protects the objectivity of judicial bodies –
interference must be prevented as far as possible.
• The administrative activities of the courts, and in particular the procedures
followed in a particular case and the decisions given, may in principle not be sub-
ject to the directives of any other government body. Private persons and pressure
48
groups may likewise not influence the courts. The fact that the courts interpret
and apply legislation, and that in terms of the system of precedents a court may
________________________
40 S 177(1) and (2). The President, on the advice of the Judicial Service Commission, may
suspend a judge against whom a procedure for removal has been instituted – s 177(3). In
British law, parliament has been involved in removal procedures since the adoption of the
Act of Settlement of 1701 (12 and 13 Will. III c 2) – s III(7) reads: “That after the said limita-
tions shall take effect as aforesaid judge’s commissions be made quamdiu se bene gesserint and
their salaries ascertained and established but upon the address of both Houses of Parlia-
ment it may be lawful to remove them.”
41 S 174(7).
42 The constitutionality of provisions of the Acts were investigated in S v Van Rooyen 2002 8 BCLR
810 (CC), 2002 5 SA 246 (CC). Provisions were invalidated which dealt with aspects of the min-
ister’s discretion to recall members of the Magistrates Commission (para 95), to increase or
decrease the powers of officials (paras 230 and 251) and to appoint any “competent person” to
act in certain instances (para 248).
43 S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 138.
44 See the quote in n 42.
45 S 176(2) and (3).
46 Ss 2(1) and 2(3)(b) Act 47 of 2001. S 12 of the Magistrates Act regulates the determination of
magistrates’ salaries.
47 Other expressions used in this respect are “substantive independence”, “functional independ-
ence” and “decisional independence”.
48 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) paras 69, 72 and 160.
be bound by decisions of higher courts, does not detract from this aspect of judi-
49
cial independence.
• The courts are protected from external pressure by measures in respect of the
immunity of judicial officers to civil actions50 and the offence of contempt of
51
court.
The South African Constitution provides that the courts are subject only to the
Constitution and the law and that no person or organ of state may interfere with
52
the functioning of the courts.
3.4 Impartiality
The impartiality of the courts refers to the attitude of a court in relation to the
issues and parties in a particular case;53 the courts must apply the law without favour
54
or prejudice.
Judicial officers may, in general, not follow any other occupation or perform any
other official function that is not compatible with the independence of the judiciary.55
On assuming office, judicial officers undertake to administer justice to all persons
56
alike without fear, favour or prejudice. Furthermore, there is a general rule against
bias in terms of which presiding judicial officers in any case must, voluntarily or on
request, recuse themselves from the proceedings if there is reasonable apprehension
that they, on account of partiality, prejudice, or any other recognised ground, may
give a judgment other than that which should be given by law. This rule now forms
part of the right to a fair trial in the Bill of Rights.57
________________________

in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 630. Theophilopoulos C “Con-
stitutional transformation and fundamental reform of civil procedure” 2016 TSAR 71 also re-
fers to Soller v President of the RSA 2005 3 SA 567 (T).
50 Penrice v Dickenson 1945 AD 6 14–15; May v Udwin 1981 1 SA 1 (A) 19.
51 “Contempt of court consists in unlawfully and intentionally violating the dignity, repute or
authority of a judicial body, or interfering in the administration of justice in a matter pending
before it” – Burchell JM and Milton JRL Principles of Criminal Law (1991) 627. In S v Mamabolo
2001 5 BCLR 449 (CC), 2001 3 SA 409 (CC), the validity of the common-law crime of scandal-
ising the court was sustained, but the common-law summary procedure used to prosecute the
crime was held to be inconsistent with the right to a fair trial in s 35(3).
52 S 165(3).
53 Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western Tembuland
Regional Authority 1998 3 BCLR 314 (Tk) 325–327.
55 In SA Association of Personal Injury Lawyers v Heath 2001 1 BCLR 77 (CC), 2001 1 SA 883 (CC), it
was held that although the principle of separation of powers is not necessarily compromised
whenever a judge is required to perform non-judicial functions, eg, to preside over a commis-
sion of enquiry, there may be circumstances in which the performance of other functions in-
fringes “the central mission of the judiciary”. The Court held that the appointment of a judge
as head of the special investigating unit in terms of s 3(1) of Act 74 of 1996 was unconstitu-
tional.
56 S 174(8) and item 6(1) sch 2.
57 See S v Collier 1995 8 BCLR 975 (C). In President of the RSA v SARFU 1999 7 BCLR 725 (CC),
1999 4 SA 147 (CC), the Court formulated the following test for bias (para 48): “The question
is whether a reasonable, objective and informed person would on the correct facts reasonably
apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication
of the case, that is a mind open to persuasion by the evidence and the submission of counsel.”
4 The right of access to the courts and to fair and public hearings
The South African Constitution provides that every person has the right to have any
dispute that can be resolved by the application of the law decided in a fair and
public hearing in a court or, where appropriate, another independent and impartial
58
tribunal or forum. It also provides that every accused person has a right to a fair
59
trial.
These rights are discussed in chapter 27.
5 Judicial authority over constitutional matters

5.1 General 176
5.2 Jurisdiction in constitutional matters 178
5.3 Access to courts in constitutional disputes 187
5.4 Court procedure in constitutional disputes 188
5.5 Court decisions on constitutional matters 189
5.1 General
Disputes may occur between a person and a government body, because the person is
of the opinion that the government body has not exercised its authority in accor-
dance with the constitution. It is also possible that disputes may occur between
government bodies about the distribution and exercise of government authority in
the constitution, or in any other law. In states with an entrenched constitution, and
in particular when the constitution includes a bill of rights, the possibility that dis-
putes may occur over the application of the constitution is, of course, greater than in
states in which parliament is sovereign and the courts must apply all laws adopted by
parliament in accordance with ordinary legislative procedure.
Judicial control over compliance with the provisions of a constitution implies that
the courts may invalidate actions if they are inconsistent with the provisions of the
constitution.
The South African Constitution provides that the Constitution is the supreme law of
the Republic, that law or conduct inconsistent with it is invalid, and that the obli-
60
gations imposed by it must be fulfilled.
In some states, control over compliance with the provisions of a constitution is exercised
by the ordinary highest courts of appeal, whereas in other states, special constitu-
tional courts have been established for this purpose.
In the United States of America, the federal Supreme Court is the highest court for all
cases including disputes over the application of the federal Constitution. This is the
61
case in many states.
In 1920, the first special constitutional courts were established in Austria and Czech-
oslovakia. After the Second World War, this example was followed in a number of oth-
62
er European states. The first constitutional courts were established because, in terms
________________________
58 S 34 of the Constitution. See also ch 13 para 8.25 below.

59 S 35(3) of the Constitution. See also ch 13 para 8.25 below.
60 S 2.
61 Antieau CJ Adjudicating Constitutional Issues (1985) 3 referred to Argentina, Brazil, Burma,
Colombia, Denmark, El Salvador, Greece, Ireland, India, Japan, Canada, Liberia, Norway, the
Philippines and Venezuela.
62 Eg, Germany, Italy, Portugal, Spain and Turkey.
of the Continental approach towards the separation of powers, the ordinary courts
were unable to invalidate laws of parliament. Therefore, it was deemed necessary to
create a special body alongside the ordinary courts to interpret and apply the constitu-
tion as supreme law. In practice, however, a constitutional court is nothing else than
the highest court for the purposes of constitutional disputes. In respect of the applica-
tion of a bill of rights, in particular, the judgments of these courts in all branches of
the law are as influential as those of the American Supreme Court.
Before the adoption of the interim Constitution, there was considerable debate in
63
South Africa over the advantages and disadvantages of a special constitutional court.
However, it appears that the existence or not of special courts does not affect the effi-
ciency of the different systems. The introduction of an entrenched constitution which
must be enforced by the courts has certain implications irrespective of whether a spe-
cial court is established or not. It is possible that tension may develop between democ-
ratically elected parliaments and the courts which may invalidate their laws. Attempts
to limit this possibility affect nearly all the particulars of a system, for example, the
procedure for the appointment of judges, measures relating to the jurisdiction of the
courts over constitutional disputes, the way in which courts interpret and apply the
constitution, and the type of order that courts may make. In 1994 a Constitutional
Court was introduced in South Africa as the highest court in all constitutional matters.
In 2013 the court’s jurisdiction was expanded in the Seventeenth Constitutional
Amendment to include any other matter if the Constitutional Court grants leave to
appeal because the matter raises an arguable point law of general public importance
which ought to be considered by the court. The Constitutional Court is now generally
referred to as the highest court in all matters. Strictly speaking is it no longer a “consti-
tutional” court, but the name Constitutional Court has been retained.
The South African Constitutional Court is the highest court in the Republic.64
The Court consists of the Chief Justice, the Deputy Chief Justice and nine other
65 66
judges. A matter before the Court must be heard by at least eight judges.
A judge is appointed for one term of 12 years, but must retire at the age of 70, ex-
cept when an act of parliament extends the term.67 The Judges’ Remuneration and
Employment Act 47 of 2001 extends the term effectively to 15 years or the age of 75.68
The judges must be properly qualified and must be fit and proper South African
69
citizens. At all times, at least four members must be persons who were judges at the
70
time of their appointment to the Constitutional Court. As in the case of all other
judicial officers, when appointments are made, the need for the judiciary to reflect
________________________
63 See, eg, SA Law Commission Interim Report on Group and Human Rights (1991) 670.
64 S 167(3)(a) read with s 167(3)(b)(ii). For an overview of the new provisions, see Venter R “The
legal system and the judiciary” in Landsberg C and Graham S Government and Politics in South
Africa: Coming of Age (2017) 77-78.
65 S 167(1).
66 S 167(2). In President of the RSA v SARFU 1999 7 BCLR 725 (CC), 1999 4 SA 147 (CC) para 73,
the court stated that the composition of the court reflects the fact that “the Court would be
called upon to adjudicate finally in respect of issues which would inevitably have important po-
litical implications”.
67 S 176(1). Justice Alliance of SA v President of the RSA 2011 10 BCLR 1017 (CC), 2011 5 SA 388
(CC) held that s 176(1) does not permit parliament to single out individual judges such as the
chief justice or deputy chief justice for extension of term of office, their terms must be ex-
tended uniformly with those of other members of the court.
68 S 4(1) and (2).
69 S 174(1).
70 S 174(5).
71
broadly the racial and gender composition of South Africa must be considered.
The President, together with the other members of the cabinet, appoints the judges
72
after consulting the leaders of the parties in the National Assembly, and:
• the Chief Justice and Deputy Chief Justice also after consulting the Judicial Service
73
Commission; and
• the other judges also after consulting the Chief Justice and from a list of names
submitted by the Judicial Service Commission.74 The list submitted to the Presi-
dent must contain three more names than the number of appointments to be
made. The President may request the Commission to supplement the list if any of
the nominees are unacceptable and any appointments remain to be made. The
Commission must then supplement the list and the President must make the re-
75
maining appointment(s) from that list.
The President may appoint an acting Deputy Chief Justice (from the ranks of the
other judges) or another acting judge if there is vacancy or if a judge is absent, on
the recommendation of the minister of justice and with the concurrence of the
76
Chief Justice . “Absent” in the provision does not apply when judges recuse them-
selves from hearing a specific matter.77
5.2 Jurisdiction in constitutional matters78

5.2.1 Jurisdiction in respect of bills 179
5.2.2 Jurisdiction in respect of laws before their commencement 180
5.2.3 The reservation of decisions on certain constitutional matters for particu-
lar courts 181
5.2.4 The Constitutional Court 181
5.2.5 The Supreme Court of Appeal, the high court and other courts 187
Section 172(1) of the Constitution provides that when deciding a constitutional
matter within its power, a court must declare that any law or conduct that is
inconsistent with the Constitution is invalid.
The word “any law” means statutory, common law and customary law and “conduct”
refers to the action and behaviour of all organs of state and all private institutions
and individuals. In paragraphs 5.2.3, 5.2.4 and 5.2.5 the “constitutional matters
within” the powers of the Constitutional Court, the Supreme Court of Appeal, the
high court and other courts in respect of law or conduct are dealt with.
In principle, adjudication by the court involves the interpretation and
application of legal rules to live disputes in concrete cases. Subject to certain
________________________
71 S 174(2).
72 S 174(3) and (4) read with s 85(2).
73 S 174(3).
74 S 174(4).
75 S 174(4). See on interim Constitution appointments, President of the RSA v SARFU 1999 7 BCLR
725 (CC), 1999 4 SA 147 (CC) para 63.
76 S 175(1). S 4(2)(b) of the Superior Courts Act provides that the Deputy Chief Justice will act as
Chief Justice when the Chief Justice is absent or the office is vacant.
77 Hlope v Premier of the Western Cape Province 2012 6 BCLR 567 (CC), 2012 6 SA 13 (CC) para 42.
78 For comparative contributions on these matters see Brewer-Carías AR Judicial Review in Com-
parative Law (1989); Da Costa JMC “Constitutional jurisdiction in the context of state powers”
1988 Human Rights Law Journal 57; Schwab KH en Gottwald P “Verfassung und Zivilprozess” in
Habschied WJ (ed) Effectiver Rechtsschutz und Verfassungsmässigen Ordnung (1983) 76–85.
exceptions, the courts do not deliver judgments in hypothetical cases and on
79
academic questions. Before the procedure to pass a bill has been completed and
before a law has formally come into operation, nobody is affected. However, judicial
control over the constitutionality of bills and of laws before their commencement
can serve as a preventative measure. It allows for judicial review of the validity of
rules of law before they are applied with possible serious consequences. This kind of
control is usually provided for only at the request of certain government bodies,80
and time limits are set for filing requests of this nature.81 In paragraph 5.2.1 the
position in respect of bills of parliament and provincial legislatures, which are by
defintion not yet “law”, is discussed, and in paragraph 5.2.2 the position in respect of
laws that have not yet been put in operation is discussed.
5.2.1 Jurisdiction in respect of bills

82
Bills are not laws. Bills approved by parliament or a provincial legislature only
become laws when they have have been assented to by the President or a provincial
83
premier.
The South African Constitution provides for judicial control over the constitu-
tionality of
• bills of parliament and provincial legislatures; and
• texts of provincial constitutions and bills amending provincial constitutions.
If the President or the premier of a province has reservations about the constitu-
tionality of a bill submitted for her or his assent and signature, and the legislature
concerned has been given an opportunity to reconsider the bill, the President or
premier may refer the bill to the Constitutional Court for a decision on its constitu-
84
tionality. The text of a provincial constitution or an amendment to a provincial
constitution does not become law until the Constitutional Court has certified that
the constitutional provisions on its adoption and contents have been complied
85
with.
________________________
79 SA Reserve Bank v Shuttleworth 2015 8 BCLR 959 (CC), 2015 5 SA 146 (CC) para 27; Legal Aid SA
v Magidiwana 2015 11 BCLR 1346 (CC) para 15; AD v DW 2008 4 BCLR 359 (CC), 2008 3 SA
183 (CC) para 20.
80 Da Costa JMC “Constitutional jurisdiction in the context of state powers” 1988 Human Rights
Law Journal 61. In Germany it occurs at the request of the federal government, the government
of a federal state or one third of the members of the Bundestag – s 93(1) of the Constitution of
Germany. See with regard to Spain and Portugal, Brewer-Carías AR Judicial Review in Compara-
tive Law (1989) 229 and 268.
81 Da Costa JMC “Constitutional jurisdiction in the context of state powers” 1988 Human Rights
Law Journal 61.
82 See ch 8 para 2.5.7 above.
83 Ss 81 and 123 of the Constitution.
84 Ss 79, 84(2)(b) and (c), 121, 127(2)(b) and (c). The National Council of Provinces participates
only in the process if the reservations of the President relate to a procedural matter that in-
volves the Council or to certain amendments of the Constitution – s 79(3). See Ex parte Presi-
dent of the RSA: In re Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC), 2000 1 SA 732 (CC);
In re: Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1 SA
447 (CC); Malherbe EFJ “Die Drankwetsontwerp: voorafkontrole en grondwetlike gesagsver-
deling verder omlyn” 2000 THRHR 321; Premier: Limpopo Province v Speaker of the Limpopo Provin-
cial Government 2011 11 BCLR 1181 (CC), 2011 6 SA 396 (CC).
85 S 144. See ch 11 para 2.3.1.
Before parliament or a provincial legislature has passed a bill and the President or
a premier has signed the bill, a court may not consider the constitutionality of a bill
86
at the request of anybody else.
However, in Glenister v President of the RSA the Constitutional Court held that evidence
of “demonstrable and irreversible harm that could be remedied once the legislation
has been enacted”, could be a cause for judicial intervention with the power of the ex-
ecutive to initiate legislation and the power of the legislature to enact it.87 At this stage,
the position in respect of the exceptional circumstances is not clear. The court held in
Glenister that the applicant did not establish that it was a case in which the court could
intervene88 and the court referred to a statement in the Doctors for Life case that a court
could intervene in “exceptional cases, such as where person cannot be afforded sub-
stantial relief once the process is completed because the underlying conduct would
have achieved its purpose”.89 However, the court in Doctors for Life held that it was not
reaching a firm conclusion because the statutes it considered, were no longer at the
deliberative stage when the litigation commenced, and it held categorically that sec-
tion 79 prevents it from considering the validity of a bill under consideration by par-
liament when the litigation commenced.90
In France judicial control over the constitutionality of bills is the only form of judical
91
control over the constitutionality of legislation. Unlike in France, it seldom
happens in other states that it is the only form of such control.92
5.2.2 Jurisdiction in respect of laws that were passed but have not yet commenced
A bill assented and signed by the President or a provincial premier becomes an act,
but it only “takes effect when published or on a date determined in terms of the
Act”.93 Does a court have jurisdiction on the constitutionality of an act that has not
yet commenced or come into force?
Sections 80 and 122 of the South African Constitution provides that at least one-
third of the members of the National Assembly, or at least one-fifth of the members
of a provincial legislature, may request the Constitutional Court to review the
constitutionality of provisions of an Act of Parliament or an act of a provincial
legislature within 30 days of the date on which the President or premier assented to
and signed the bill.
________________________
86 Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC) 1421–
1422; President of the RSA v United Democratic Front 2002 11 BCLR 1164 (CC), 2003 1 SA 472 (CC)
para 26; Van Straaten v President of the RSA 2009 5 BCLR 480 (CC), 2009 3 SA 457 (CC) para 4.
87
Glenister v President of the RSA 2009 2 BCLR 136 (CC), 2009 1 SA 287 (CC) paras 40, 49, 50.
88
Glenister v President of the RSA 2009 2 BCLR 136 (CC), 2009 1 SA 287 (CC) para 59
89
Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC) 1425D.
90
Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC) 1427C
and 1423A.
91
Brewer-Carías AR Judicial Review in Comparative Law (1989) 251 ff. Brewer-Carías AR Judicial
Review in Comparative Law (1989) discusses the different forms provided for in Finland and
Sweden (the courts give only advisory opinions) (172–173), Italy (223), Spain (232–233), Chile
(247), Portugal (267), Venezuela (281) and Colombia (314). See also Da Costa JMC “Constitu-
tional jurisdiction in the context of state powers” 1988 Human Rights Law Journal 60 Judicial Re-
view in Comparative Law (1989).
92
Brewer-Carías AR Judicial Review in Comparative Law (1989) discusses the different forms
provided for in Finland and Sweden (the courts give only advisory opinions) (172–173), Italy
(223), Spain (232–233), Chile (247), Portugal (267), Venezuela (281) and Colombia (314). See
also Da Costa JMC “Constitutional jurisdiction in the context of state powers” 1988 Human
Rights Law Journal 60.
93
Ss .81 and 123.
The Constitutional Court may order that the act or the part of it that is the
subject of the application has no force until the Court has decided the matter, if
94
required by justice and if the application has a reasonable prospect of success.
The Constitutional Court held that these provisions merely regulate the condi-
tions under which members of the National Assembly (and provincial legislatures)
may challenge an act that has not yet come into effect and that there is nothing in
the wording of these articles that precludes the Constitutional Court or any other
court from considering the validity of such an act at the instance of the public.95
5.2.3 The reservation of decisions on certain constitutional matters for particular courts
In certain systems all courts may consider all constitutional matters. Usually, these
96
are systems without special constitutional courts. The normal procedure applies in
terms of which appeals are lodged from lower to higher courts.
There are also systems in which only particular courts may deal with the applica-
tion of the constitution in certain instances. Usually, this is the case in states with
97
special constitutional courts, but it is sometimes also provided for in states without
98
such courts. The range of matters reserved for the exclusive jurisdiction of particu-
lar courts may vary in the different systems. There are no systems in which all consti-
tutional matters fall within the exclusive jurisdiction of a particular court. The South
African Constitutional Court has exclusive jurisdiction on certain matters. The
court’s exclusive jurisdiction is discussed in the next paragraph.
5.2.4 The Constitutional Court

In South Africa, the Constitutional Court is the highest court of the Republic.99
The Constitutional Court’s jurisdiction cannot be ousted by ordinary legislation
without offending the Constitution. The court’s jurisdiction in constitutional
100
matters can only be limited or excluded by constitutional amendment.
The Constitutional Court is the highest court in all constitutional matters and in any
other matter in which the Constitutional Court grants leave to appeal because the
matter raises an arguable point law of general public importance which the court
thinks it should consider.
In principle, a constitutional matter is a matter that can be dealt with by the
application of provisions of the Constitution. Between 1994 and 2013 the
________________________
94 Ss 80(3) and 122(3). The Constitutional Court may order the applicants to pay costs if the
application is unsuccessful and did not have a reasonable prospect of success – ss 80(4) and
122(4).
95 Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC) 1423–
1424. See also Khosa v Minister of Social Development; Mahlaule v Minister of Social Development
2004 6 BCLR 569 (CC), 2004 6 SA 505 (CC) para 90 which was decided with reference to s
172(2)(a).
96 Eg, in Argentina, Australia, Brazil, Greece, India, Canada, the Scandinavian countries and
the USA.
97 Eg, in Germany, Austria, Portugal and Spain.
98 Brewer-Carías AR Judicial Review in Comparative Law (1989) 186–187 refers to the 1966
Constitution of Uganda and the 1960, 1969 and 1979 Constitutions of Ghana.
99 S 167(3)(a) as amended by the Constitution Seventeenth Amendment Act of 2012.
100 A question in this regard was raised, but not decided in African Christian Democratic Party v The
Electoral Commission 2006 5 BCLR 579 (CC), 2006 3 SA 305 (CC) para 15. See also Liberal Party
v Electoral Commission 2004 8 BCLR 810 (CC) para 15. See, however, Numsa v Fry’s Metals (Pty)
Ltd 2005 9 BCLR 879 (SCA) para 10.
Constitutional Court included more and more matters in what it understood to be
101
constitutional matters. In 2007, the court, for example, stated: “Philosophically and
conceptually it is difficult to conceive of any legal issue that is not a constitutional
matter within a system of constitutional democracy.” 102
103
The Constitutional Court held that constitutional matters include the following: allega-
104
tions of bias on the part of judicial officers; all aspects of the exercise of public pow-
105
ers; the interpretation and application of laws which give effect to a right in the Bill
106
of Rights; the development of, or failure to develop, the common law;107 any matter
108
concerning the nature and ambit of the powers of the high court. The Court has
held that constitutional matters do not include: findings of fact that do not relate to
matters which are otherwise constitutional matters;109 and the interpretation of con-
110
flicting ordinary legislative measures.
The broadening of the meaning of “constitutional matters” was clearly heading in
the direction of an outcome in which the Constitutional Court would eventually
111
become the highest court in all matters. In the Constitution Seventeenth
Amendment Act, the position was formalised by extending the court’s jurisdiction to
include any other matter in which the Constitutional Court grants leave to appeal
because the matter raises an arguable point of general public importance which the
court thinks it should consider.
Although section 167(3) of the Constitution formally refers to two categories in
paragraphs (i) and (ii) of section 167(3)(b), namely “constitutional matters” and
“other matters”, the guidelines of the Constitutional Court to decide what “any
other matter …” is, are virtually the same as the rules which the court has since 1994
112
applied to consider applications for the leave to appeal in “constitutional matters”.
________________________
101 See the list in Rautenbach IM “Introduction to the South African Bill of Rights” The Bill of Rights
Compendium Issue 40 (2018) para 1A93.2A.
102 Fraser v ABSA Bank Ltd 2007 3 BCLR 219 (CC), 2007 3 SA 484 (CC) para 36.
103 For more comprehensive overview with more extensive reference to case law, see Rautenbach
IM “Introduction to the South African Bill of Rights” The Bill of Rights Compendium Issue 40
(2018) para 1A93.2.
104 Eg in President of the RSA v SARFU 1999 2 BCLR 175 (CC), 1999 2 SA 14 (CC) para 41.
105 Eg in Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of
the RSA 2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC) paras 33 and 44–45.
106 Eg in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 8 BCLR 886
(CC), 2000 3 SA 705 (CC) para 3.
107 Eg in S v Boesak 2001 1 BCLR 36 (CC), 2001 1 SA 912 (CC) para 15; Carmichele v Minister of
Safety and Security 2001 10 BCLR 995 (CC), 2001 4 SA 938 (CC) para 4.
108 Eg in Phillips v National Director of Prosecutions 2006 2 BCLR 274, 2006 1 SA 505 (CC) para 31.
109 S v Basson 2004 6 BCLR 620 (CC), 2005 1 SA 171 (CC) paras 92-95; S v Boesak 2001 1 BCLR
36 (CC), 2001 1 SA 912 (CC) para 15.
110 Eg in In re: Constitutionality of the Mpumalanga Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1 SA
447 (CC) para 16.
111 Particularly between 2008 and 2012 there was a growing number of instances in which the
court delivered judgments in which the interpretation and application of constitutional pro-
visions as such played hardly any role in resolving the disputes in which the court assumed ju-
risdiction because it held that constitutional matters were involved – Rautenbach IM and
Heleba S “The jurisdiction of the Constitutional Court in non-constitutional matters” 2013
TSAR 405, 409 n 21.
112 Paulsen v Slip Knot Investments 77 (Pty) 2015 5 BCLR 509 (CC), 2015 3 SA 479 (CC) paras 17-
18, 20-26, 29-30: for example, factual disputes do not involve points of law, “arguable” means
some merit (prospect of success?), “general importance” means a segment of the public must
have an interest in the outcome, and the interests of justice has the same meaning as in the
case of “constitutional matters”.
It is most unlikely that the Constitutional Court is going to use completely different
frameworks to apply the different paragraphs of section 163(3)(b).
However, it must be noted that the concept “constitutional matters” may still be
relevant in respect of matters that do not deal with the Constitutional Court’s juris-
diction. One such incident concerns costs orders in constitutional litigation. Accord-
ing to the rule in Biowatch Trust v Registrar, Generic Resources, a special rule applies to
costs orders in “constitutional litigation”; subject to certain exceptions an unsuccess-
ful party in proceedings against the state does not pay the state’s costs in constitu-
113
tional litigation and when the state is unsuccessful no costs order is made. The fact
that the Biowatch rule in respect of costs applies in constitutional litigation means
that the distinction between constitutional matters and non-constitutional matters
cannot be abandoned. A rule that constitutional litigation concerns disputes about
the interpretation and application of the Constitution must still be applied.114
There are certain instances in which only the Constitutional Court may deal with the
application of the Constitution.
115
The Constitutinal Court has exclusive jurisdiction on the following matters:
(a) Only the Constitutional Court may decide disputes between national or provincial organs
of state concerning the status, powers or functions of those organs.116 “Disputes between or-
gans of state, branches of government, the executive and the legislature have the
potential to interrupt the smooth functioning of the political system and one may
add, of the public administration. Exclusive jurisdiction makes allowance for the
117
expeditious and final resolution to disputes of the genre.” Disputes concerning
other matters between these organs and disputes between one of these organs and
118
any other person or institution may be decided by other courts.
________________________
113 Biowatch Trust v Registrar, Genetic Resources 2009 10 BCLR 1014 (CC), 2009 6 SA 232 (CC)
paras 7–9.
114 S 167(7), The court makes the final decision whether a matter is a constitutional matter – s
167(3)(c).
115 The first four instances concern matters in respect of which only the Constitutional Court may
give decisions, the fifth concerns a kind of final decision which only the Court may make, and
the sixth deals with a kind of action (certification) which only the Court may perform.
116 S 167(4)(a). “Constitutional” status, powers or functions means “derived directly from the
Constitution” Minister of Police v Premier of the Western Cape 2013 12 BCLR 1405 (CC), 2014 1
SA 1 (CC) para 19.
117 Minister of Police v Premier of the Western Cape 2013 12 BCLR 1405 (CC), 2014 1 SA 1 (CC)
para 19.
118 Disputes between these organs of state concerning their constitutional status, powers or functions
may in particular instances affect the constitutionality of parliamentary and provincial acts and
conduct of the President. With regard to these matters other courts may make orders in terms of
s 172(2)(a). However, unlike s 167(4)(e) – see (e) below – s 167(4)(a) should not be interpreted
subject to s 172(2)(a). Ss 167(4)(e) and 172(2)(a) both deal with particular decisions and orders,
whereas s 167(4)(a) provides that a particular kind of dispute falls within the exclusive jurisdiction of
the Constitutional Court. Premier of the Province of the Western Cape v The Electoral Commission 1999
11 BCLR 1209 (CC) paras 3–5; Executive Council of the Western Cape v Minister for Provincial Af-
fairs and Constitutional Development of the RSA; Executive Council of KwaZulu-Natal v President of
the RSA 1999 12 BCLR 1360 (CC), 2000 1 SA 661 (CC) paras 9–10.
(b) Only the Constitutional Court may decide on the constitutionality of any parliamentary or
provincial bill and the Constitutional Court may do so only when the President or a premier
119
refers a bill to the Court.
(c) Only the Constitutional Court may decide on the constitutional validity of a parliamen-
tary or provincial act at the request, within 30 days after the President or premier assented to
and signed the act, of one third of the members of parliament, or one fifth of the members of a
120
provincial legislature. Certain other courts may also make orders concerning the
constitutional validity of parliamentary or provincial acts, but only the Constitutional
Court may deal with this particular form of abstract control.
(d) Only the Constitutional Court may decide on the constitutionality of any amendment to
121
the Constitution.
(e) Only the Constitutional Court may decide “that parliament or the President has failed to
122
fulfil a constitutional obligation”.
The Constitutional Court has experienced problems to reconcile this provision with
the provisions of section 172(2)(a) of the Constitution. Section 172(2)(a) provides
that subject to confirmation by the Constitutional Court, the Supreme Court of
Appeal, a high court and court of similar status may make an order concerning the
constitutionality of an act of parliament, a provincial act or any conduct of the Presi-
dent.123 The court has held the constitutional obligations in section 167(4)(e) must
be an agent-specific obligations that focus on the President or parliament alone and
not a general obligation of the “the state” or a duty of the President and parliament
that involves other organs.124 Apparently the duty must also be obligation-specific:
the court held that section 83(b) of the Constitution that the President must up-
hold, defend and respect the Constitution is not specific enough, it may only be-
come so when it is combined with another provision or action under another
provision, for example, a report of the public protector under section 182(1)(c) in
which the President is instructed to do something.125 The court also held that a
“power which may be exercised at the discretion” of the President, such as the power
to appoint a commission of inquiry under section 84(2)(f) of the Constitution, is not
an obligation for the purposes of the court’s exclusive jurisdiction. 126 On the other
________________________
119 Ss 167(4)(b), 79 and 121. See para 5.2.1 above. The Constitutional Court has no jurisdiction
in respect of clauses of a bill that have not been referred by the President or a premier – In re:
Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1 SA 447
(CC) para 13.
120 Ss 80 and 122. See para 5.2.2 above.
121 S 167(4)(d). interim relief to suspend the commencement of a constitutional amendment does
not fall within the exclusive jurisdiction of the Court, because the granting of the relief would
not “decide” the matter and would apply only pending a decision by the Constitutional Court –
President of the RSA v UDM 2002 11 BCLR 1164 (CC), 2003 1 SA 495 (CC) paras 30–31.
122 S 167(4)(e).
123 The court held that “fulfil a constitutional obligation” in s 167(4)(e) must be interpreted
narrowly, because if the words pertained to all the President’s and parliament’s constitutional
duties, “there would be nothing left for section 172(2)(a)” and “this would make no sense”.
President of the RSA v SARFU 1999 2 BCLR 175 (CC), 1999 2 SA 14 (CC) para 25. See also
Women’s Legal Centre Trust v President of the RSA 2009 6 SA 94 (CC) para 11; Von Abo v President
of the RSA 2009 10 BCLR 1052 (CC), 2009 5 SA 345 (CC) para 34.
124 Women’s Legal Centre Trust v President of the RSA 2009 6 SA 94 (CC) paras 15, 24. In paras 14-16
referred to the following factors: whether a duty triggers political contention, the nature of
the duty, whether its contents can be clearly ascertained and is stated unambiguously, and
whether it is capacity-defining or power-conferring and whether it is agent-specific.
125 My Vote Counts NPC v Speaker of the National Assembly 2015 12 BCLR 1407 (CC) paras 31, 35.
126 Daniel v The President of the RSA 2013 11 BCLR 1241 (CC) paras 12, 14.
hand, the court also said that duties of Parliament that are readily ascertainable and
that are unlikely to give rise to disputes, for example, when special majorities are
prescribed for the adoption of certain legislation, is not covered by section
167(4)(e), but when parliament has a discretion on how to comply with a duty, the
127
duty is not readily ascertainable and falls within the court’s exclusive jurisdiction.
Section 167(4)(e) is a rare example of poor drafting in the Constitution and the
Constitutional Court has not yet succeeded in deciding what it means. It is submit-
ted that the Constitutional Court’s problems to interpret and apply section
167(4)(e) can only be solved by constitutional amendment and that parliament
should consider to what extent problems relating to this instance of the exclusive
jurisdiction of Constitutional Court could be solved by the existing constitutional
provisions on direct access and direct appeal to the Constitutional Court.128
(f) Only the Constitutional Court may certify that a provincial constitutional text or an
amendment to a provincial constitution complies with the provisions of the Constitution.
Without certification by the Constitutional Court, the text or amendment does not
129
become law.
The Constitutional Court is the highest court of appeal in constitutional matters and
other matters within its jurisdiction.
Although other courts may also decide appeals in constitutional matters, the
Constitutional Court is the final instance of appeal in all constitutional matters.
In all matters, except matters within the exclusive jurisdiction of the Constitu-
tional Court, ordinary appeal procedures must be followed, unless national legisla-
tion or the Rules of the Constitutional Court made in terms of national legislation130
allow a person to appeal directly to the Constitutional Court from any other court or
to access that court directly.131
Rule 19 of the Rules of the Constitutional Court132 regulates applications for leave
to appeal and appeals against decisions on constitutional matters (excluding orders
________________________
127 Doctors for Life International v Speaker of the National Assembly and Chairperson of the National
Council of Provinces 2006 12 BCLR 1399 (CC) 1414–1415.
128 On direct access and direct appeal, see s 167(6)(a) and (b) of the Constitution, and the end
of para 5.2.1 below.
129 Ss 144 and 167(4)(d). Although it seems unlikely that the constitutionality of a provincial
constitution or constitutional amendment will be attacked after certification by the Constitu-
tional Court, this provision does not, in principle, preclude the possibility that the Supreme
Court of Appeal or the high court may make decisions on the constitutionality of provincial
constitutions.
131 In Dormehl v Minister of Justice 2000 5 BCLR 471 (CC), 2000 2 SA 987 (CC) paras 4 and 9, the
court held that rules regulating application for permission to direct access and direct appeal
to the Constitutional Court were not in conflict with the right in s 34 of the Constitution to
access to the court, because the permission was expressly sanctioned in s 167(6).
132 GNR 1606 in GG 25642 of 31 October 2003. In Nkabinde v Judicial Service Commission 2016 11
BCLR 1429 (CC), 2017 3 SA 119 (CC) paras 4–7, the Constitutional Court described how it
deals
internally with applications for leave to appeal to the court. Applications are dealt with in a
conference of the judges; applications that are not set down for hearing are dismissed sum-
marily without any written or oral argument and without a judgment; prospective litigants do
not have a right to attend the meetings or to be represented there. On condonation for the
late filing of appeals, see S v Mercer 2004 2 BCLR 109 (CC), 2004 2 SA 598 (CC) para 4; Head
of the Department of Education v Settlers Agricultural High School 2003 11 BCLR 1212 (CC)
paras 11–13, Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 5 BCLR 465 (CC), 2000 2 SA
837 (CC) para 3, Van Wyk v Unitas Hospitaal 2008 4 BCLR 442 (CC) para 22; S v S 2011 7
BCLR 740 (CC) para 15.
of invalidity under section 172(2)(a) of the Constitution) given by any court. In
dealing with applications for leave to appeal against such decisions of the Supreme
Court of Appeal, the Constitutional Court considers whether the leave to appeal
would be in the interests of justice as determined by reference to all relevant factors,
133
including the prospects of success, the circumstances of the parties, the nature of
the rights involved, the question whether the issue has been decided by the Supreme
Court of Appeal, the question whether or not anyone else might be harmed by relief
sought,134 and whether the issues on appeal have been raised in the lower courts.135
In principle, it is not permissible to rely on a constitutional complaint that was not
pleaded in the lower courts, but there could be circumstances where the interests of
justice require that a constitutional complaint be raised for the first time,136 for
example, when different views on similar questions have previously been expressed
137
by other courts and guidance and certainty must be provided. Once the Constitu-
tional Court has dismissed an application, the court has discharged its function. It
therefore cannot reconsider another application for leave to appeal on substantially
the same grounds.138 Although leave to appeal may be granted because there is
apparently “a constitutional substratum” to a case, the appeal may eventually be dis-
missed on the basis that no constitutional matter is involved.139
Requirements for granting leave to appeal in non-constitutional might differ, but it
is not yet clear whether it will indeed be the case or to what extent it will happen.
Section 167(3)(b)(ii) now provides that the Court may grant leave when “an arguable
point of law of general public importance” is raised. Court decisions on the difference
between points of law and points of fact (see the text at n 110 above) remain relevant.
And ‘general public importance’ seems to be a narrower concept than “interests of
justice”.
140
Direct appeals involve situations where the Constitutional Court hears an appeal
when another court has concurrent jurisdiction to hear the appeal, but has not yet
141 142
done so. Direct access involves direct access where a constitutional issue raised
________________________
133 Bruce v Fleecytex Johannesburg CC 1998 4 BCLR 415 (CC), 1998 2 SA 1143 (CC) para 6; S v
Boesak 2001 1 BCLR 36 (CC), 2001 1 SA 912 (CC) para 12; Bernert v ABSA Bank Ltd 2011 4
BCLR 329 (CC) paras 20 and 23.
134 Phumelela Gaming and Leisure Ltd v Gründling 2006 8 BCLR 883 (CC) para 24.
135 Lane NO v Dabelstein 2001 4 BCLR 312 (CC), 2001 2 SA 1187 (CC) para 15.
136 Prophet v National Director of Public Prosecutions 2007 2 BCLR 140 (CC), 2007 (6) SA 169 (CC)
paras 49, 50; Shaik v Minister of Justice and Constitutional Development 2004 4 BCLR 333 (CC),
2004 3 SA 599 (CC) para 40; Prince v President, Cape Law Society 2001 2 BCLR 133 (CC), 2001
(2) SA 388 (CC) para 22; Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 5
137 Veldman v Director of Public Prosecutions (WLD) 2006 2 SACR 319 (CC), 2007 3 SA 210 (CC)
para 11.
138 De Lacy v South African Post Office 2011 9 BCLR 905 (CC) para 32. And a second attempt to
appeal cannot be made in the form of an application for direct appeal.
139 Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 1 BCLR 14 (CC), 2003 2 SA 34
(CC) paras 3 and 9.
140 Ito s 167(6)(b) and as regulated by rule 19 of the Rules of the Constitutional Court.
141 Director of Public Prosecutions: Cape of Good Hope v Robinson 2005 2 BCLR 103 (CC), 2002 6 SA
642 (CC) paras 22–25.
142 In terms of s 167(6)(a) as regulated by rule 17 of the Rules of the Constitutional Court.
has not been considered by another court and it therefore amounts to access outside
143
the context of an appeal.
5.2.5 The Supreme Court of Appeal, divisions of the High Court and other courts
Courts other than the Constitutional Court also have jurisdiction in constitutional
matters.
144
• The Supreme Court of Appeal may decide appeals in any matter, including consti-
tutional matters that do not fall within the exclusive jurisdiction of the Con-
stitutional Court.145 The Court is, however, not the highest court of appeal in
constitutional matters and non-constitutional matters on which the Constitu-
tional Court grants leave to appeal when certain requirements are met.146
• Divisions of the High Court have jurisdiction in all constitutional matters except
(a) matters that only the Constitutional Court may decide or has agreed to hear
directly, or (b) matters that an act of parliament assigns to another court of a sta-
tus similar to the high court.147
• All other courts have the jurisdiction on constitutional matters assigned to them
only in an act of parliament. Such an act may not permit a court of a lower status
than the high court to enquire into or rule on the constitutionality of any legisla-
148
tion or any conduct of the President. According to s 110(2)(b) of the Magistrates’
Courts Act, allegations before a magistrates’ court that Presidential conduct is un-
constitutional or that any law is invalid must be decided on the assumption that the
conduct or law is valid. Section 110(1) of the Magistrates’ Court Act 32 of 1944
provides that magistrates’ courts are not competent to pronounce on the validity
of any law or conduct of the President. The word “law” includes the common law.
The Constitution itself does not permit magistrates’ courts to deal with the con-
stitutionality of the common law.149
5.3 Access to the courts in constitutional disputes

Access to courts with jurisdiction in constitutional matters is of decisive importance
for effective judicial control over compliance with the provisions of a constitution.
The right to free access to the courts in section 34 of the South African Constitution
will naturally also apply to constitutional disputes.150 However, section 38 of the Con-
stitution contains a supplementary guarantee in respect of the enforcement of the
________________________
143 Shongwe v S 2003 8 BCLR 858 (CC) para 4; Bruce v Fleecytex Johannesburg CC 1998 4 BCLR 415
(CC), 1998 2 SA 1143 (CC) para 4; Glenister v President of the RSA 2011 7 BCLR 651, 2011 3 SA
347 (CC) para 24. According to Dugard J “Courts of first and final instance? Towards a pro-
poor jurisdiction for the South African Constitutional Court” 2006 SAJHR 271 the court has
granted direct access only nine instances between 1995 and 2005.
144 S 168(3).
145 S 168(3)(a) provides that an act of parliament may restrict the jurisdiction of the Supreme
Court of Appeal to hear appeals from divisions of the high court or court with similar status
in respect of labour or competition matters. This changes the position as set out in Numsa v
Fry’s Metals (Pty) Ltd 2005 9 BCLR 879 (SCA) para 29.
146 Ss 167(3)(a) and 168(3).
147 S 169(a). Assignment in act of parliament of a matter within the jurisdiction of the high court
to an institution with a lesser status, eg, the commission for conciliation, mediation and arbi-
tration, is invalid – Fredericks v MEC for Education and Training, Eastern Cape 2002 2 BCLR 113
(CC), 2002 2 SA 693 (CC) paras 29–31 and 41.
148 S 170.
149 Masiya v Director of Public Prosecutions (Pretoria) 2007 8 BCLR 827 (CC), 2007 5 SA 30 (CC)
paras 66, 68 and 69.
150 Para 4 above.
Bill of Rights. The common-law rules on standing have been expanded considerably
for the purpose of the enforcement of rights in the Bill of Rights.151 The right in
section 38 is discussed in chapter 27.
Individuals and private institutions have the right to appropriate relief, not only in
the case of a violation or threatening violation of the Bill of Rights. There are also
other provisions of the Constitution which may give rise to disputes in which they may
be involved. An example is the distribution of powers between the national govern-
152 153
ment and the provinces. The common-law rules on standing apply to these cases.
There are constitutional matters in respect of which a private person has no access
to the courts, for example in disputes on the constitutionality of bills, disputes
between organs of state and the certification of the texts and amendments of pro-
154
vincial constitutions.
As discussed in paragraph 5.2.4 above, access to the Constitutional Court as the
highest court in constitutional matters is enhanced by the possibility of having a
direct appeal to the court or direct access to the court under particular circum-
stances.
5.4 Court procedure in constitutional disputes

In systems in which only a specific court may decide particular constitutional dis-
putes, special procedures often exist on how other courts must deal with such issues
when they are raised in those courts.
The Constitution provides that national legislation must provide for the rules and
155
procedures of all courts, and that the Constitutional Court, the Supreme Court of
Appeal and the high court have the power to regulate their own procedure.156
Although the parties to a court case will in most cases themselves raise matters
157
concerning the constitutionality of laws of conduct, a court may raise a
constitutional issue that falls within its jurisdiction on its own when (a) the
constitutional issue arises on the facts, and (b) cannot be disposed of without
deciding the constitutional issue or when it is in the interests of justice to do so, for
example, where an issue has become moot between the parties, but its immediate
resolution is in the public interest.158
________________________
152 See ch 11 para 2.3.2.2.
153 It has not yet been decided whether the locus standi rules in respect of the Bill of Rights apply
to disputes on all the provisions of the Constitution.
154 See above.
155 S 171. In respect of the Constitutional Court this has been done in s 16 of the Constitutional
Court Complementary Act 13 of 1995 which confers on the Chief Justice the power to make
rules for the Court in consultation with the President of the Supreme Court of Appeal.
156 S 173. In S v Pennington 1997 10 BCLR 1413 (CC), 1997 4 SA 1076 (CC) it was held that the power
is to be exercised with caution. See also Parbhoo v Getz NO 1997 10 BCLR 1337 (CC), 1997 4 SA
1095 (CC) para 4. For a brief overview of the Constitutional Court judgments on postponements,
the presentation of facts, the assessment of disputes concerning facts, onus and parties to proceed-
ings, see “Introduction to the South African Bill of Rights” The Bill of Rights Compendium Issue 40
(2018) paras 1A93.8 and 1A97 and in respect of costs para 1A98.7.
157 Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA
794 (CC) para 22 contains guidelines on how constitutional matters must be raised.
158 Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development 2009
7 BCLR 673 (CC), 2009 4 SA 222 (CC) paras 40-43.
5.5 Court decisions on constitutional matters

When deciding a constitutional matter within its jurisdiction, a court must declare that
any law or conduct that is inconsistent with the Constitution is invalid.159
Usually, the decision of a court in a constitutional dispute contains a finding that the
law or conduct at issue is either consistent, or inconsistent with the provisions of the
Constitution. Of course, the content of decisions may, for example, also entail that
the court lacks jurisdiction, or that the applicant lacks standing, or that a prescribed
procedure has not been followed, or that no order will be made, because something
160
has happened which renders a decision of mere theoretical interest.
When deciding a constitutional matter, a court may make any order that is “just and
equitable”.161 Particularly in respect of matters concerning the Bill of Rights, section
38 guarantees a right to “appropriate” relief when a right in the Bill of Rights has
been violated or threatened.
In South Africa, an order of constitutional invalidity, in principle, applies
retrospectively from the moment the invalid legal rule came into being, or the
invalid action was performed after the commencement of the Constitution.162 A
straight, unqualified declaration of invalidity of a law or action is not necessarily the
most just and equitable way in which to deal with constitutional invalidity.
After a court has decided that a legal rule is invalid, there are several ways in which
the court order can deal with extent and effect of the invalidation to achieve a just
and equitable outcome.
(i) Severance. The extent of a declaration of invalidity can be limited by declaring any
law or conduct that is inconsistent with the Constitution invalid only to the extent of its
163
inconsistency (actual severance). A provision or action is not declared invalid in its
entirety, if a particular part of it can be cut from the rest and be invalidated. What
remains is then a valid rule. This has always been a recognised principle of South
164
African law when administrative actions are invalidated. The Constitutional Court
applies the rule as it pertains to invalidations in terms of the Constitution in the
165
same way.
________________________
159 S 172(1)(a). See, however, s 149 and ch 11 para 2.3.2.2 below with regard to the effect of a
decision that certain legislation prevails over other legislation in terms of the Constitution – the
last-mentioned legislation is not declared invalid, it only becomes inoperative for as long as
the conflict remains. A Constitutional Court declaration of invalidity of a law must be pub-
lished in the Government Gazette and relevant provincial gazette if the order relates to provin-
cial legislation – Rule 4(7) Constitutional Court Rules.
160 Eg, because parliament has passed legislation to rectify an unconstitutional situation. See JT
Publishing (Pty) Ltd v Minister for Safety and Security 1996 12 BCLR 1599 (CC), 1997 3 SA 514
(CC)
paras 16 and 17; President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) paras 4–
5. In s 148 instances are envisaged in which a court is unable to resolve disputes concerning
conflicts between national and provincial legislation – see ch 11 para 2.3.2.2.
161 S 172(1)(b).
162 This conclusion follows from the wording of s 172(1)(b)(i). See also ch 3 para 2.2.5 on the
effect of the commencement of the Bill of Rights.
163 S 172(1)(a).
164 Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 3 SA 809 (A).
165 See Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10
BCLR 1382 (CC), 1995 4 SA 631 (CC) para 16: “. . . if the good is not dependent on the bad
and can be separated from it, one gives effect to the good that remains after the separation if
it still gives effect to the main objective of the statute. The test has two parts: first, is it possible
(ii) Notional severance. The extent of an invalidation may also be limited when a
court invalidates only the application of a provision to a particular matter (notional
166
severance). In this case the formulation of the rule or phrase is not changed by
cutting out words and phrases. However, when actual severance ((i) above) can
achieve the same result it must be done, because deletion leaves a provision with
clear language, whereas notional severance changes the application without chang-
167
ing the language.
(iii) Reading in. The effect of an invalidation may be limited when a court makes an
order which immediately cures the invalidity. This is done by reading words into an
invalid provision (reading in). For example, when a provision is inconsistent with the
Constitution, because it affords benefits to, for example, X and Y, but not to Z, X
and Y will also lose their benefits when the provision is simply invalidated as it
stands. In such an instance, the effect of the invalidation may be limited by reading
words into the invalid provision to the effect that Z must also be afforded the bene-
168
fits. This is a method which is employed after a decision has been reached that a
provision is unconstitutional and must as such be distinguished from interpretation
in conformity with the Constitution (discussed in chapter 14) which is an interpre-
tive aid to determine the meaning of a provision before a decision on its constitution-
ality is taken. Reading in amounts to legislative action and the Constitutional Court
has developed rules to prevent reading in from violating the principles of separation
169
of powers.
1. There must be a very urgent need for appropriate relief which cannot be satisfied
by drawn-out legislative procedures.
2. The court must balance the need to appropriate relief by reading in words with the
need to respect the role of the legislature. Reading in should interfere as little as pos-
sible with the laws adopted by the legislature.
3. When a range of constitutionally valid options exists to cure a defect, a court should
be slow to make choices that are primarily to be made by the legislature concerned. In
cases where urgent relief is required, a suspension of the order of invalidity and in-
terim relief must be considered.
________________________
to sever the invalid provisions and second, if so, is what remains giving effect to the purpose
of the legislative scheme?”; Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC),
1996 1 SA 984 (CC) paras 129 and 131; Case v Minister of Safety and Security; Curtis v Minister of
Safety and Security 1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC) para 1.
166 Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 157;
National Coalition for Gay & Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC), 1999
1 SA 6 (CC) para 63.
167 South African National Defence Union v Minister of Defence 1999 6 BCLR 615 (CC), 1999 4 SA 469
(CC) para 16; National Director of Prosecutions v Mohammed NO 2002 9 BCLR 970 (CC), 2002 4
SA 843 (CC) paras 25–26.
168 National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 1998 12 BCLR 1517 (CC),
1999 1 SA 6 (CC) paras 64 and 97; Satchwell v President of the RSA 2002 9 BCLR 986 (CC) para
37; South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 8 BCLR
901 (CC) paras 31–34. “Reading in” is also used when a court wishes not to leave the matter
completely unregulated – S v Manamela 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC) para 57;
Singo v S 2002 8 BCLR 793 (CC), 2002 4 SA 858 (CC) para 44.
169 Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2005 (3) SA 589
(CC) paras 121–122; SA Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 8
BCLR 901 (CC) paras 37, 40; Provincial Minister of Local Government v Municipal Council of the
Oudshoorn Municipality 2015 10 BCLR 1187 (CC), 2015 6 SA 115 (CC) para 28.
4. Reading in should not be undertaken if it is likely to result in “unsupportable

170
budgetary intrusion”.
“Severance”, “notional severance” and “reading in” can be applied to invalid
common law.
171
In Thebus v S, the Constitutional Court intimated that, when a common-law rule that
limits a right cannot be justified in terms of section 36, “invalidation”, “notional or ac-
tual severance” or “reading in” are not appropriate to deal with the invalid rule – the
common law can only be “developed”. This is not correct. All the remedial options in
respect of legislation can be done within the framework of “the development of the
172
common law”. To the extent that a court may invalidate a common-law rule, it is cer-
tainly conceivable that it may also invalidate only part of the rule, or the application of
the rule to particular instances, without affecting the formulation of the rule. Techni-
cally speaking, these possibilities could very well be covered by “developing the com-
mon law”, but they involve exactly the same processes and have exactly the same effect
as actual or notional severance when legislation is invalidated. In the Thebus case, it was
said that a common-law rule that is inconsistent with the Constitution must be
adapted. This seems to be the equivalent of reading in. “Reading in” is a legislative ac-
tivity performed by a court, similar to “developing the common law”. It must, however,
be noted that contrary to popular British and related South African opinions the
common law is not the courts’ law on which the courts have greater expertise than legis-
latures and in respect of which the Constitution assigns special functions to the exclu-
sion of legislatures. The failure of a competent legislature to change an existing
common-law rule means that the legislature is satisfied with it. A court must be as cau-
tious when it develops invalid common law as when it does “reading in” with legisla-
tion. The suspension of invalidation “for any period and on any conditions, to allow
the competent authority to correct the defect” in terms of section 172(1)(b)(ii) of the
Constitution must also be considered.
(iv) The effect of the declaration of invalidity may also be limited by making an
order in respect of the time at which the invalidation commences.
The Constitution provides173 that when a court makes an order of invalidity, the
court may make any order that is just and equitable, including:
• an order limiting the retrospective effect of the declaration;
• an order suspending the declaration of invalidity for any period and on any condi-
tion, to allow the competent authority to correct the defect.174
In respect of legislation, an order of constitutional invalidity applies from the
moment the legal rule came into effect (or the commencement of the Constitution,
if the rule came into effect before the commencement of the Constitution). This is
________________________
170 Van der Merwe v Road Accident Fund 2006 6 BCLR 682 (CC), 2006 4 SA 103 (CC) para 47.
171 Thebus v S 2003 10 BCLR 100 (CC), 2003 6 SA 505 (CC) paras 28 and 30–31.
172 See National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC),
1999 1 SA 6 (CC).
173 S 172(1)(b).
174 See Executive Council, Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC),
1995 4 SA 877 (CC) paras 102–107; S v Ntuli 1996 1 BCLR 141 (CC), 1996 1 SA 1207 (CC)
paras 27–28; Minister of Justice v Ntuli 1997 6 BCLR 677 (CC), 1997 3 SA 772 (CC) paras 25–
26, 29–30 and 42; Ex parte Minister of Safety and Security: In re S v Walters 2002 7 BCLR 663
(CC), 2002 4 SA 613 (CC) paras 74–75; Mostert NO v Old Mutual Life Assurance Co (SA) Ltd
2002 1 SA 82 (SCA) para 86. A high court may not suspend its invalidation of a statutory pro-
vision, because the invalidation only takes effect after it has been confirmed by the Constitu-
tional Court and a high court is “incompetent … to suspend the operation of an order that is
not in operation in any event” – Minister of Justice and Constitutional Development v Prince 2018
10 BCLR 1220 (CC) 30 para 2.
called the “objective invalidity” of unconstitutional legislation: “The Court’s [invalid-
175
ating] does not invalidate the law: it merely declares it to be invalid”. In respect of
other actions, the invalidity applies from the moment the invalid action was per-
formed after the commencement of the Constitution.
Factors to be taken into account in considering when and how the retrospective
effect should be limited include the impact on the administration of justice and
good government of a retrospective order, the consequences for third parties who
acted in good faith and the need to afford the relief to all people similarly situ-
ated.176 A suspension of the order is considered when the invalidation of a rule
would, in the absence of the order, leave a lacuna. The court takes into account the
likely effect on the successful litigant and other prospective litigants in similar posi-
tions of an order of suspension and they are not afforded immediate relief and the
effect of the lacuna on the administration of justice or the state machinery if no
177
suspension is ordered. Measures may be read into an invalid rule for the duration
of the suspension in order to provide interim relief. 178
The common-law rule that the execution of a judgment is suspended pending an ap-
179
peal has no application to declarations of constitutional invalidity of legislation. This
is a consequence of the objective invalidity of unconstitutional legislation. However,
courts have the power to temper the effect of orders of constitutional invalidity pend-
ing the finalisation of the appeal process in terms of section 172(1)(b). The doctrine
of objective invalidity does not dictate that if the competent legislature fails to act be-
fore the expiry of the suspension of the declaration of invalidity, the provision be-
comes invalid from the moment of its enactment in every case. The effect of non-
compliance of the competent authority with a suspension order depends on the terms
180
and the context of the suspension order. The court may order (or its order may
clearly imply) that if the competent authority does not intervene timeously the decla-
ration of invalidity takes effect retrospectively, or it may mean that it only takes effect
181
from the date of the expiry of the suspension order.
The orders a court may make and the relief it may grant include all existing statutory
and common-law remedies, and when necessary a court may develop new remedies.182
________________________
176 S v Bhulwana; S v Gwadiso 1995 12 BCLR 1579 (CC), 1996 1 SA 388 (CC) para 32; S v Ntsele
1997 11 BCLR 1543 (CC) paras 13 and 14.
177 J v Director-General, Department of Home Affairs 2003 5 BCLR 463 (CC), 2003 5 SA 621 (CC) para
21; Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC), 2000 1 SA 409 (CC) para
33. The effect of a retrospective invalidation of a defence in criminal litigation is taken into
account, because the effect could be to criminalise conduct that was not punishable at the
time it was committed, which effect is prohibited by s 35(3)(l). Ex parte Minister of Safety and
Security: in re S v Walters 2002 7 BCLR 663 (CC), 2002 4 SA 613 (CC) paras 74–75.
178 Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The
Habitat Council, City of Cape Town 2014 5 BCLR 591 (CC), 2014 4 SA 437 (CC) para 95.
179 Minister of Health v New Clicks South Africa (Pty) Ltd; In re Application for Declaratory Relief 2006 8
180 De Kock NO v Van Rooyen 2006 6 BCLR 714 (SCA) paras 24–28.
181 As was the case in S v Steyn 2001 1 BCLR 52 (CC), 2002 1 SA 1146 (CC) para 55 where the
court order referred to the commencement of the invalidity as from the date of the expiry of
the suspension.
182 See with regard to the Bill of Rights, s 8(3)(a). See with regard to s 7(4) of the Interim Constitu-
tion and the possibility of awarding so-called constitutional damages for the infringement of a
constitutional right, Fose v Minister of Safety and Security 1997 7 BCLR 851 (CC), 1997 3 SA 786
(CC) paras 60, 67, 68, 70, 74 and 92 and MEC, Department of Welfare, Eastern Cape v Kate 2006 4
SA 478 (SCA) para 27; and with regard to remedies when a criminal trial is held to be unfair for
the purposes of s 35(3)(d), S v Pennington 1997 10 BCLR 1413 (CC), 1997 4 SA 1076 (CC) paras
A court must ensure that successful litigants obtain the relief they seek, that the
relief should be afforded to all people who are in the same situation, and that all
other relevant factors such as urgency, clarity, practicality and any potential disad-
183
vantage that may result from temporary relief be taken into account.
Particular matters that have been considered by the courts include the following:
(a) Appropriate relief for the infringement of right in the Bill of Rights may include
an award for delictual damages. The Constitutional Court has expressed doubt about
whether, “in the case of the infringement of a right which does not cause damage to
the plaintiff, an award of constitutional damages in order to vindicate the right would
184
be appropriate”. It does not seem necessary to develop a new category “constitu-
tional damages”. Damages caused by the violation of certain constitutional rights, like
the rights to human dignity, physical and psychological integrity, and property have
always been covered the law of delict. Damages ensuing from the violation of other
rights can be covered by the development of the law of delict and not by the creation
of a special category “constitutional damages”. To the extent that “constitutional dam-
ages” is intended to serve prevention, retribution, reformation and deterrent pur-
poses, it amounts to criminalisation which must done by proper legislative processes
and not instinctively by the courts in the process of developing the common law.
(b) The appropriate remedy for infringement of the right to a speedy trial in section
35(3)(d) of the Constitution need not be to bar the continuation of the prosecution.
Barring the prosecution is likely to be available “only in a narrow range of circum-
stances, for example, where it is established that the accused has probably suffered ir-
reparable trial prejudiced as a result of the delay”. Where the prejudice alleged is not
trial-related, there is a range of less radical remedies including a mandamus requiring
the prosecution to commence the case, a refusal to grant the prosecution a remand, or
185
damages after an acquittal arising out of the prejudice suffered by the accused.
(c) In respect of orders against the state to pay money, the fact that the government has
186
not budgeted for the payment prevent a court from making an appropriate order.
(d) A structural interdict is particularly suited to remedy systemic failures or inadequate
compliance with constitutional duties. A structural interdict compels an organ of state
to perform its constitutional duties and to report from time to time on its progress in
187
doing so. A structural interdict “involves the continued participation of the court in
________________________
42–43 and Sanderson v Attorney-General, Eastern Cape 1997 12 BCLR 1675 (CC), 1998 2 SA 38
(CC) para 39. Orders against the state to pay money may be made even when the govern-
ment has not budgeted for it – Permanent Secretary of the Department of Education, Eastern Cape v
Ed-U-College (PE) (Section 21) Inc 2001 2 BCLR 118 (CC), 2001 2 SA 1 (CC) para 23. The rem-
edies in respect of unconstitutional legislation and policy include “mandatory and structural in-
terdicts and the exercise of supervisory jurisdiction” – Minister of Health v Treatment Action
Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC) paras 96, 106 and 113. See also
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 4 BCLR 301 (CC), 2005 2 SA 359
(CC) paras 107–108.
183 Bhe v Magistrate Kayelitsha; Sibi v Sithole; SA Human Rights Commission v President of the RSA 2005
1 BCLR 1 (CC), 2005 1 SA 580 (CC) paras 101–102; Fose v Minister of Safety & Security 1997 7
BCLR 851 (CC), 1997 3 SA 786 (CC) para 97.
184 Fose v Minister of Safety & Security 1997 7 BCLR 851 (CC), 1997 3 SA 786 (CC) paras 67–68.
See in respect of Canada, Okpaluba C “The development of Charter damages jurisprudence
in Canada: guidelines from the Supreme Court” 2012 Stell L Rev 55-75. In Olitzki Property Hold-
ing v State Tender Board 2001 8 BCLR 779 (SCA), 2001 3 SA 1247 (SCA), the Supreme Court
of Appeal held that an award for damages for loss of profit is not an appropriate remedy for
breaches of the right to administrative justice.
185 Sanderson v Attorney-General, Eastern Cape 1997 12 BCLR 1675 (CC), 1998 2 SA 38 (CC) para
39. See, also, S v Pennington 1997 10 BCLR 1413 (CC), 1997 4 SA 1076 (CC) paras 42–43 and
Wild v Hoffert 1998 6 BCLR 656 (CC) paras 26–27.
186 Permanent Secretary of the Department of Education, Eastern Cape v Ed-U-College (PE) (Section 21) Inc
2001 2 BCLR 118 (CC), 2001 2 SA 1 (CC) para 23.
187 S v Z and 23 similar cases 2004 4 BCLR 410 (E) paras 37–38.
188
the implementation of its orders”. Such an interdict may involve an order to revise
an existing policy and to submit the revised policy to the court to enable the court to
satisfy itself that the policy is consistent with the Constitution.
(e) A declaratory order is a flexible remedy which can assist in clarifying legal duties. It
enables courts to declare law, but leaves to the other arms of government the decision
on how that law is to be observed. Declaratory orders may be accompanied by other
189
forms of relief such as mandatory and prohibitory orders.
(f) A mandatory order compels respondents “to take steps” to give effect to their duty.
The order will not be made if there is nothing on the papers to suggest that the re-
190
spondents would not take steps to comply with the terms of the declaratory order. It
is an effective remedy to ensure compliance with duties by the Constitution, but it is a
remedy that requires prompt action to prevent a sustained encroachment of rights and
may not be effective in the case of litigants who lack resources to react efficiently to
non-compliance with the order, or in the case of endemic non-compliance which af-
191
fects a multitude of people.
5.6 Constitutional court confirmations of invalidations

The Supreme Court of Appeal, the high court, or a court of similar status may
invalidate an Act of Parliament, a provincial Act or any conduct of the President, but
such an order has no force unless it is confirmed by the Constitutional Court.192
The purpose of Constitutional Court’s confirmation is to ensure “that only the
highest Court in constitutional matters intrudes into the domain of the principal
193
legislative and executive organs of State” and to ensure “that certainty is obtained
as to the constitutionality of Acts of Parliament where that has been challenged”.194
Both a referral for confirmation to the court and the court’s consideration of the
confirmation is peremptory; 195 the court must consider the invalidations even if
196
none of the parties participate in the confirmation proceedings.
________________________
188 Mbazira C “From ambivalence to certainty: norms and principles for the structural interdict
in socio-economic rights litigation in South Africa” 2008 SAJHR 1 4.
189 City of Cape Town v Rudolph 2003 11 BCLR 1236 (C) 1278–128; E N v Government of the RSA
2007 1 BCLR 84 (D); N v Government of the RSA (1) 2006 6 SA 543 (D) paras 32–35.
190 Rail Commuters Action Group v Transnet t/a Metrorail 2005 4 BCLR 301 (CC), 2005 2 SA 359
(CC) para108.
191 MEC, Department of Welfare, Eastern Cape v Kate 2006 4 SA 478 (SCA) para 31. See in respect of
process-in-aid as a remedy whereby a court enforces a judgment of another court which can-
not be effectively enforced through its own process Bannatyne v Bannatyne 2003 2 BCLR 111
(CC), 2003 2 SA 363 (CC) para 20; and in respect of remedies relating to systemic and insti-
tutional delays and failures Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 5
BCLR 422 (CC) paras 46 and 53.
192 S 172(2)(a) of the Constitution. National legislation must provide for the referral of orders
of constitutional invalidity to the Constitutional Court – s 172(2)(c). According to s 8(1)(a)
of the Constitutional Court Complementary Act this is done in accordance with the Rules of
the Court. Whenever the Constitutional Court makes an order declaring or confirming any
provision of a law inconsistent with the Constitution, such order is published in the Government
Gazette and in the relevant provincial gazette, if the order relates to provincial legislation – Rule
4(7) of the Rules of the Constitutional Court – GN R1606 in GG 25642 of 31 October 2003.
194 Mkangeli v Joubert 2001 4 BCLR 316 (CC), 2001 2 SA 1191 (CC) para 11.
195 National legislation must provide for the referral (s 172(2)(c)). This was done in s 8(1) of the
Constitutional Court Complementary Act 13 of 1995 which provides that the order of invalid-
ity by another court must be referred to the Constitutional Court in accordance with the
Constitutional Court Rules.
196 Minister for Environmental Affairs v Aquarius Platinum (Pty) Ltd 2016 5 BCLR 673 (CC) para 31.
Section 172(2)(d) provides that any person or organ of state with a sufficient in-
terest may appeal, or apply, to the Constitutional Court to confirm or vary an order
of constitutional invalidity. The Constitutional Court has explained that provision is
made for appeals as well as referrals because an appeal may permit more issues to be
197
examined than would be the case in an application for confirmation.
The Constitutional Court has developed several rules in respect of confirmation. The-
198
se rules include:
(a) The invalidation of the “application” of a legislative measure without an invalida-
199
tion of the legislative measure need not be confirmed and the constitutionality of
provisions other than those invalidated in the lower court is not considered in confir-
200
mation hearings.
(c) When a provincial legislature has dealt with a pre-1994 provincial ordinance, after
1994, in whatsoever way (including the amendment or substitution of a particular pro-
vision) the invalidation of such post-1994 provincial legislation must be confirmed by
201
the Constitutional Court; the invalidation of pre-1994 provincial legislation need not
be confirmed when a provincial legislature or parliament has never expressed itself on
202
the legislation.
(d) The Constitutional Court has the discretion to decide whether to deal with the
confirmation of the invalidity of a provision when the provision is repealed by the
competent legislature before the start of the confirmation proceedings in the Consti-
tutional Court. Factors to be taken into account include the nature and extent of the
effect the order may have. If an order will have no practical effect, the court will not
203
deal with confirmation proceedings.
(e) A settlement between litigants cannot dispose of the confirmation procedure: It
settles the dispute between the litigants only and does not resolve the unconstitutional-
204
ity of the legislation or action. If the state considers that there is no valid defence to
a constitutional challenge, it must inform the court of its reasons, because unconstitu-
205
tionality is not determined by the consent of the parties.
(f) The Constitutional Court may confirm or refuse an order of invalidity, or vary the
206
order by, for example, setting aside a suspension of the order.
________________________
198 For a more complete overview, see “Introduction to the South African Bill of Rights” The Bill of
Rights Compendium Issue 40 (2018) para 1A93.9.
199 S v Thunzi 2010 10 BCLR 983 (CC) para 43.
200 Metcash Trading Ltd v Commissioner for SARS 2001 1 BCLR 1 (CC), 2001 1 SA 1109 (CC) para
73.
201 Weare v Ndebele 2009 4 BCLR 370 (CC), 2009 1 SA 600 (CC) para 35.
202 Mdodana v Premier, Eastern Cape 2014 5 BCLR 533 (CC), 2014 4 SA 99 (CC) para 36; Khohliso v
S 2015 2 BCLR 164 (CC) paras 47-49.
203 President of the Ordinary Court Martialv The Freedom of Expression Institute 1999 11 BCLR 1219
(CC) para 8; Uthukela District Municipality v President of the RSA 2002 11 BCLR 1220 (CC), 2003
1 SA 678 (CC) paras 11–14 and 24.
204 Phillips v Director of Public Prosecutions (WLD) 2003 4 BCLR 357 (CC), 2003 3 SA 345 (CC) para
8; Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR
569 (CC), 2004 6 SA 505 (CC) para 35; AD v DW 2008 4 BCLR 359 (CC) para 58.
205 Phillips v Director of Public Prosecutions (WLD) 2003 4 BCLR 357 (CC), 2003 3 SA 345 (CC)
paras 11–12; Ex parte Omar 2003 10 BCLR 1087 (CC), 2006 2 SA 294 (CC) para 5.
206 Minister for Welfare & Population Development v Fitzpatrick 2000 7 BCLR 713 (CC), 2000 3 SA
422 (CC) paras 22–36. The Constitutional Court has the power to amend an order despite
the fact that the order has been mistakenly referred to it for confirmation when the order has
the potential of perpetuating an injustice; the reference for confirmation may then be dealt
with by the court as an appeal for the purposes of correcting the defective order - S v Thunzi
2010 10 BCLR 983 (CC) paras 50 and 52.
6 Control over judicial bodies

6.1 General 196
6.2 Political control 196
6.3 Public control 197
6.4 Judicial control 197
6.1 General
Measures concerning the independence of the judiciary often reflect different ways
in which the judiciary can be controlled.
In all democratic states, judicial control is the most effective way to ensure that exe-
cutive and legislative organs of state observe the law. The objectivity of the judiciary,
moreover, is in all cases of crucial importance to the individual. As indicated above,
attempts to ensure the objectivity of the judiciary are made by protecting its
207
independence in various ways. But who controls the judiciary? Control implies a
certain measure of subordination. Therefore, a problem exists in reconciling
control over the judiciary with the principle of judicial independence: more control
implies less independence, and vice versa. However, the majority of measures by
which the independence of the judiciary is ensured assume that there is control over
the judiciary, and particulars of the measures reflect the balance (or imbalance)
reached in a particular system.
6.2 Political control

The fact that legislative bodies participate in some or other way in the appointment
and removal from office of certain judicial officers presupposes responsibility towards
the people who, after all, are represented by the legislatures concerned.208 Responsi-
ble performance in executing the judicial function can, in the final analysis, be
enforced by removal from office. The grounds for dismissal are often described
209
quite broadly. The possible abuse which may result from these broad definitions,
and the involvement of political functionaries, can be countered by particularly
difficult removal procedures in which the political functionaries do not play a
decisive role. A balance between control over and the independence of the judiciary
can thus be achieved.
________________________
207 Cappelletti M “‘Who watches the watchmen?’ – a comparative study on judicial responsibility”
in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 597–598 550 gives a com-
parative analysis of the problem. See in respect of Germany Rupp HH “Die Bindung des
Richters an das Gesetz” 1973 Neue Juristische Wochenschrift 1769 and Rheinstein M “Wer wacht
über die Wächter” 1974 Juristische Schulung 409.
208 In a few states of the USA certain judicial officers are directly elected by the voters, which
amounts to a direct form of political control when the re-election of such officers come up –
Cappelletti M “‘Who watches the watchmen?’ – a comparative study on judicial responsibility”
in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 581 n 31.
209 Cappelletti M “‘Who watches the watchmen?’ – a comparative study on judicial responsibility”
in Shetreet S and Deschênes J (eds) Judicial Independence (1985) 559–560 declares: “Hence
the ‘legal’ character of such violations is greatly blurred; behaviour that is politically, rather
than strictly legally, condemnable can be rather easily included in the constitutional
sanction.” He mentions as examples the grounds for dismissal in the USA and s 98 of the
German Constitution in terms of which non-compliance with the “principles of the Constitu-
tion” is such a ground.
6.3 Public control

For the sake of the independent functioning of the judiciary, the right to freedom of
expression, and reporting by the media, is limited by the offence of contempt of
court. This does not exclude all criticism of the courts as a form of public control. In S
210
v Van Niekerk the South African Supreme Court of Appeal stated: “First, it is im-
portant to bear in mind that the true basis of punishment for contempt of court lies
in the interests of the public, as distinct from the protection of any particular
injured Judge or Judges . . . Secondly, unless those last-mentioned interests clearly so
require, genuine criticism, even though it be somewhat emphatically or unhappily
expressed, should . . . preferably be regarded as an exercise of the right of free
speech rather than as ‘scandalous comment’ falling within the ambit of the crime of
contempt of court.” It has been argued convincingly that transparency is essential to
the accountability of the courts and that transparancy includes free access to infor-
mation on the selection of judges, the internal operations of the courts, the
decisions of the courts and the procedures for complaints against the actions and
behaviour of judicial officers.211
6.4 Judicial control

Judicial bodies are subject to different forms of judicial control. The comprehensive
system of appeal and review of the decisions of lower courts by higher courts
amounts to an extensive form of internal judicial control.212 In addition, the
immunity of judicial officers to civil actions which may result from their decisions is
not absolute. Immunity applies only if the officer acted bona fide. If the judicial
officer acted mala fide, the officer can be held liable.
________________________
210 1972 3 SA 706 (A) 720–721.

211 Van de Vijver L (ed) The Judicial Institution in Southern Africa (2006) 10.
212 S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 23.
Chapter 11
Provincial government
1 General 199
2 The South African provinces 200
3 Traditional authorities 231
1 General
In most states, a level of government exists between the national and local levels
which can generally be described as a regional level.
The term regional level comprises a particularly wide spectrum of government institutions
and functions. In accordance with the different methods for the vertical distribution
of government authority in a state, it may extend from autonomous states of a
federation to mere administrative units which perform certain functions on behalf of
national government bodies.
The reasons for the existence of a regional level generally relate to the advantages of
the vertical distribution of government authority.
1
These advantages can be summarised as follows: the concentration of power at
national level is countered; the democratic principle of the involvement of inhabi-
tants in the performance of government functions is furthered; more effective
rendering of services takes place; cultural, religious and ethnic differences can be
managed better; and government at regional level leads to quicker decision-making,
greater sensitivity to local circumstances, and more direct control by the inhabitants
over the exercise of government authority. On the other hand, regional govern-
ments may entail greater costs in respect of government and administrative
2
structures, and may cause conflict between levels of government. The special nature
and form of a regional level in a particular state is influenced by historical,
3
demographic, economic and social factors and circumstances. The degree of
________________________
1 The advantages are discussed in ch 6 para 3.

2 Schlemmer L “Regionalism in South Africa: opportunities missed?” in De Villiers B (ed) Birth
of a Constitution (1994) 243–245.
3 In many federations, for example the United States of America, Switzerland and Austria, the
constituent states existed before the founding of the respective federations. That was also the
position in South Africa at Union with regard to the former four provinces. They were the
building-blocks of a new national state. In other cases, government institutions at regional level
were created and developed after the establishment of the state to realise one or more of the
general purposes mentioned above. Recent developments in Belgium, France, Spain and Italy
are examples in this regard. The formation of the present nine South African provinces is an-
other example. See in general about the developments in Western Europe, Council of Europe
The Reforms of Local and Regional Authorities in Europe: Theory, Practice and Critical Appraisals
(1983). See also the contributions in De Villiers B (ed) Evaluating Federal Systems (1994) and De-
partment of Constitutional Development and Provincial Affairs Intergovernmental Relations: An In-
ternational Comparative Study (1998).
199
autonomy of regional institutions is the criterion for the distinction between unions
4
and federations.
2 The South African provinces

2.1 Background 200
2.2 Demarcation 201
2.3 Provincial government institutions 201
2.4 Co-operative government 221
2.5 Status of the provinces 227
2.1 Background
The South African provinces are the result of a process which began at Union in
1910, and upon which historical, political, ideological, physical, economic, and
ethnic factors have had a decisive influence through the years.
Since Union, South Africa has been characterised by the existence of different types of
government institutions at regional level. The Union of South Africa was a unitary
state that was constituted in 1910 by the four former colonies which, as provinces, ex-
ercised authority at regional level over particular matters through their own legisla-
5
tive and executive structures. The provincial system provided only for the partici-
6
pation of whites. The 1961 Constitution did not affect the provincial system. In
7
1986, pursuant to the changes brought about by the 1983 Constitution, the elected
legislative provincial councils and executive committees were abolished and replac-
8
ed by appointed executive committees. In addition to the provinces, self-governing
territories existed at regional level in which black communities exercised authority
over a wide range of matters. As part of apartheid policies, these territories came
into being through the years in terms of various laws aimed at regulating the consti-
9
tutional position of blacks separately. Four of these territories became independent
10
in terms of legislation passed by the South African parliament.
All these regional institutions were abolished by the Interim Constitution and re-
placed by a uniform regional system. The Interim Constitution provided for a new di-
vision of the country into nine provinces into which all previous regional institutions
were integrated. The Interim Constitution contained considerable detail on demarca-
tion of the country into provinces, the legislative and executive institutions of each
11
province, and their powers. In principle, this dispensation has been retained in the
present Constitution. Based on the principle of co-operative government, various par-
ticulars regarding the relationship between the provinces and the national and local
12
spheres of government have been added, however. This will influence the further
13
development of the provincial system.
________________________

5 See the South Africa Act, Edw VII, C9.
6 See Act 32 of 1961.
7 Act 110 of 1983.
8 See the Provincial Government Act 69 of 1986.
9 The key instrument was the National States Constitution Act 21 of 1971.
10 Viz Transkei, Bophuthatswana, Venda and Ciskei. The international community never recog-
nised the independence of any of them.
11 See the contributions in De Villiers B (ed) Birth of a Constitution (1994)); Erasmus G “Provincial
government under the 1993 constitution: what direction will it take?” 1994 SA Public Law 407.
12 In terms of the Interim Constitution, the further development of the provincial system was to
receive priority attention from the Constitutional Assembly, and the Constitutional Assembly had
Chapter 11 Provincial government 201
2.2 Demarcation14
The boundaries of the nine provinces of the Republic are protected in the Constitution.
In terms of the Constitution, the Republic has the following provinces: Eastern
15
Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern
16
Cape, North-West and Western Cape. The boundaries of the provinces are those
17
determined by the Interim Constitution. Altering the provincial boundaries requires
an amendment to the Constitution and must be approved by a two-thirds majority in
the National Assembly and the support of six provinces in the National Council of
18
Provinces, and the legislatures of the provinces that are affected must concur.
Apparently, the territory of the provinces includes the adjacent territorial waters
19
and the air space, but this is relevant for the exercise of provincial government
authority only insofar as functional areas with regard to which authority can be exer-
cised in the territorial waters or the air space have been allocated to the provinces.
2.3 Provincial government institutions

2.3.1 Provincial constitutions 201
2.3.2 Legislative authority 203
2.3.3 Executive authority 217
2.3.1 Provincial constitutions

Every provincial legislature may adopt a constitution for its province which provides
for its own institutions, but which must comply with certain constitutional requirements.
________________________
to consider any recommendations by the Commission on Provincial Government and any reac-
tion by the provincial governments to such recommendations (s 161(1) and para 2.4).
13 See the full exposition of the provincial system by Malherbe R and Brand D “South Africa: Sub-
national Constitutional Law” International Encyclopaedia of Laws: Constitutional Law (2001); Bes-
dziek D “Provincial government” in Venter A (ed) Government and Politics in the New South Africa
(2001) 164 ff.
14 See in De Villiers B (ed) Birth of a Constitution (1994), De Coning C “The territorial imperative:
towards an evaluation of the provincial demarcation process” 189; Welsh D “The provincial
boundary demarcation process” 223.
15 The original name, Natal, was amended by s 12 Act 2 of 1994.
16 S 103(1). S 104(2) provides for the change of the name of a province by parliament at the
request of the provincial legislature of that province. At least two-thirds of the members of the
legislature must support the resolution. Towards the end of 1994, the PWV legislature re-
quested in terms of the Interim Constitution that the name of the province be changed to
Gauteng. In 2003 the name of the Northern Province was changed to Limpopo (Act 3 of
2003).
17 S 103(2). See s 124(2) and schedule 1 of the Interim Constitution. The Constitution Twelfth
Amendment Act of 2006 changed the basis for the demarcation of provincial boundaries from
magistrate districts to municipal boundaries, but the Act was declared invalid because of pro-
cedural shortcomings in Matatiele Municipality v President of the RSA 2007 1 BCLR 47 (CC), 2007
6 SA 477 (CC). See also Merafong Demarcation Forum v President of the RSA 2008 10 BCLR (CC),
2008 5 SA 171 (CC) and Poverty Alliance v President of the RSA 2010 6 BCLR 520 (CC); Moutse
Demarcation Forum v President of the RSA 2011 11 BCLR 1158 (CC).
18 S 74(3) and (8). See ch 5. The Interim Constitution provided for the amendment of certain
provincial boundaries. See on attempts to amend boundaries Bushbuck Ridge Border Committee v
Government of the Northern Province 1999 2 BCLR 193 (T).
19 Chaskalson M and Klaaren J “Provincial government” in Chaskalson M et al (eds) Constitutional
Law of South Africa (1998) para 4.1–2. See also ch 5.
The Constitution contains full particulars on the government institutions in each
20 21
province and they can function effectively without their own constitutions. Not-
withstanding the detailed provisions of chapter 6, any provincial legislature in South
Africa may, however, with a two-thirds majority, adopt a constitution for that pro-
22
vince. A provincial constitution may not be inconsistent with the Constitution and
will have force and effect only if the Constitutional Court certifies that it has been
adopted in accordance with the Constitution and that it complies with the
23
requirements of the Constitution. A provincial constitution must comply with
chapter 3 of the Constitution (the principle of co-operative government) and with
the values contained in section 1 and may not confer on the province more powers
24
than those conferred on it by the Constitution. A provincial constitution may none-
theless provide for provincial legislative and executive structures and procedures
that differ from those provided for in the Constitution. In addition, a provincial
constitution may provide for the institution, role, authority and status of a traditional
monarch.25
So far, two provinces have adopted constitutions. The constitution of KwaZulu-
Natal has not come into effect. The Constitutional Court held that the constitution
usurped more powers for the province than allowed by the Interim Constitution and
26
refused to certify the constitution. The constitution contained, inter alia, a list of
exclusive powers for which the Interim Constitution did not make any provision.
The Court also stated that there could be no objection in principle against the
27
inclusion of a bill of rights in a provincial constitution. However, the bill of rights
may, first, contain provisions on matters only within the ambit of the powers of the
province. Secondly, no provisions may be included in a provincial bill of rights that
________________________
20 See Ch 6 (particularly ss 104–141). See also Shubane K “Provincial institutions” in De Villiers B

(ed) Birth of a Constitution (1994) 230 ff with regard to similar structures that existed in terms of
the Interim Constitution.
21 In In re: Certification of the Constitution of the Western Cape, 1997 1997 9 BCLR 1167 (CC), 1997 4
SA 795 (CC) para 15. The Indian, Malaysian and Nigerian Constitutions also contain detailed
provisions on regional institutions and the regions do not have the power to adopt their own
constitutions. In contrast, the American, Australian, Canadian and German Constitutions do
not contain such provisions and every state of the federation must have its own constitution in
order to function effectively. See in general Watts R “Provinces, states, Länder and cantons:
content and variations among subnational constitutions of the world” Konrad Adenauer Stiftung
Seminar Report: Subnational Constitutional Governance (1999) 11 ff. On Australia, see Saunders C
“The relationship between national and subnational constitutions” Konrad Adenauer Stiftung
Seminar Report: Subnational Constitutional Governance (1999) 23 ff, and on the constitutions of
the German states, Starck C “The constitutions of the new German Länder and their origin: a
comparative analysis” Konrad Adenauer Stiftung Occasional Papers (June 1995).
22 S 104(1)(a), read with ss 142 and 143.
23 S 144(2). In In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996 1996 11
BCLR 1419 (CC), 1996 4 SA 1098 (CC) the Constitutional Court declined on various grounds
to certify, in terms of the Interim Constitution, the constitution which had been adopted by
the provincial legislature of KwaZulu-Natal – see below.
24 S 143(2). A provincial constitution that has been adopted before the commencement of the
Constitution, must also comply with these requirements – item 13 schedule 6.
25 S 143(1). In terms of the Interim Constitution, the provincial constitution of KwaZulu-Natal
had to provide for a traditional monarch (s 160(3)(b)).
26 In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996 1996 11 BCLR 1419
(CC), 1996 4 SA 1098 (CC). The court stated inter alia that the constitution was “fatally flawed”
(para 47). Efforts since 2004 by the provincial government to revive the idea of a provincial
constitution have not yet borne any fruit.
27 Paras 17–24.
are inconsistent with the national Bill of Rights. Presumably, a provincial bill of
rights may therefore provide for more rights or may impose stricter requirements for
28
the limitation of rights, but may not take away rights or make it easier to limit
rights.
The only provincial constitution that has come into effect is that of the Western
29
Cape. Initially, the Constitutional Court refused to certify the constitution, inter alia
on the ground that the constitution provided for a proportional electoral system
based in part on constituencies. The Court held that the authorisation to include in
the provincial constitution “provincial legislative and executive structures and pro-
cedures” that differ from those in the Constitution, did not include the electoral
30
system. This was an incomprehensible argument, because the Court itself explained
that “structures” referred to the form, composition and organisation of the provincial
31
legislative and executive institutions. It cannot be denied that the electoral system is
32
one of the primary elements of the composition of a legislature. Pursuant to the
judgment of the Court, the provincial legislature nevertheless adopted the necessary
33 34
amendments, after which the constitution was certified and came into effect.
2.3.2 Legislative authority

2.3.2.1 Composition 203
2.3.2.2 Powers 204
2.3.2.3 Functioning 215
Every province has a legislature vested with the legislative authority of the province.35
2.3.2.1 Composition
Every provincial legislature is elected directly according to an electoral system that
provides, in general, for proportional representation.
A provincial legislature must consist of at least 30 and at most 80 members. The
exact number of members of each provincial legislature was determined by the
________________________
28 See Starck C “The constitutions of the new German Länder and their origin: a comparative
analysis” Konrad Adenauer Stiftung Occasional Papers (June 1995) 13; Williams R “The new judi-
cial federalism in the United States: expansive state constitutional rights decisions” in Konrad
Adenauer Stiftung Seminar Report: Subnational Constitutional Governance (1999) 67 ff. In the USA
the practice to provide for more rights in a subnational constitution is called “new judicial federal-
ism” (Williams R “Comparative subnational constitutional law: South Africa’s provincial constitu-
tional experiments” 2000 THRHR 367 373).
29 Western Cape Constitution, 1997, which came into effect on 16 January 1998.
30 In re: Certification of the Constitution of the Western Cape, 1997 1997 9 BCLR 1167 (CC), 1997 4 SA
795 (CC) paras 48 and 49.
31 Para 17.
32 See the discussion of the judgment by Malherbe EFJ “Provinsiale grondwette: ’n barometer van
provinsiale outonomie?” 1998 TSAR 344 349 ff. See also Malherbe R “The role of the Constitu-
tional Court in the development of provincial autonomy” 2001 SA Public Law 255 268–269;
Malherbe R and Brand D “South Africa: Sub-national Constitutional Law” International Encyclopae-
dia of Laws: Constitutional Law (2001) 96–99.
33 In re: Certification of the Amended Text of the Constitution of the Western Cape, 1997 1997 12 BCLR
1653 (CC), 1998 2 SA 655 (CC).
34 On 16 January 1998 – Proc 1/1998 16/1/98 (Western Cape Provincial Gazette 16/1/98).
35 S 104(1). Malherbe R and Brand D “South Africa: Sub-national Constitutional Law” International
Encyclopaedia of Laws: Constitutional Law (2001) 75–77.
36
Electoral Commission according to a formula prescribed in the Electoral Act. The
number of members of each provincial legislature is presently as follows: Eastern
Cape – 63, Free State – 30, Gauteng – 73, KwaZulu-Natal – 80, Limpopo – 49,
37
Mpumalanga – 30, Northern Cape – 30, North West – 33 and Western Cape – 42.
The members are elected in terms of an electoral system prescribed by the Electoral
Act, which are based on that province’s segment of the national voters’ roll, and
38
which results, in general, in proportional representation.
The qualifications for members of provincial legislatures are similar to those for
39
members of the National Assembly. As in the case of parliament, a member of a
provincial legislature loses membership if the member ceases to be eligible and is
40
absent without leave under circumstances for which the rules provide. The filling of
vacancies is determined by national legislation.
A provincial legislature is elected for five years,41 but under the following circum-
stances the term may be shorter:
• If a legislature at any time during the term adopts a motion of no-confidence in
the premier, the premier and the other members of the executive council must
42
resign. If the legislature fails to elect another premier within 30 days, the acting
43
premier must dissolve the legislature.
• The premier must dissolve the legislature if the legislature adopts with an abso-
lute majority a resolution to that effect and three years have passed since the pre-
vious election.44
After the dissolution of the legislature, an election must be held within 90 days, and
if the result is not announced within the prescribed period, or is set aside by a court,
45
another election must be held within a further period of 90 days. A provincial
legislature remains competent to function from its dissolution until the day before
the polling day.
2.3.2.2 Powers
(a) General 205
(b) Exclusive and concurrent powers 205
(c) Pre-eminence in respect of concurrent powers 208
(d) Financial powers 213
________________________
36 S 105(2) of the Constitution and schedule 3 of the Electoral Act 73 of 1998. The formula entails
that one seat is awarded per 100 000 inhabitants, with a minimum of 30 and a maximum of 80
(item 2).
37 Government Notice 1317 of 11 June 1999 (Government Gazette 20201 of 11 June 1999). In the
Western Cape Constitution the determination of the Commission has been increased from 39
to 42 (s 13). In Premier of the Province of the Western Cape v The Electoral Commission 1999 11 BCLR
1209 (CC) the increase in membership was held to be constitutional.
38 S 105(1). The minimum voting age is 18 years (s 105(1)(c)).
39 S 106. See ch 8 para 2.3.6. In terms of the Interim Constitution, at least 90% of the candidates
of each party had to reside in the province in question (s 132(3), read with s 40(2)–(5)).
40 S 106(3). The imperative mandate with regard to members who change parties also applies to
provincial legislatures – see the discussion in ch 8 para 2.3.6.
41 S 128(1).
42 S 141(2). If the motion of no-confidence excludes the premier, it does not affect the term of
the legislature and the premier must only reconstitute the executive council (s 141(1)).
43 The same potentially unfair arrangement applies as in the case of parliament. See the remarks
in ch 8 para 2.3.8.
44 S 109(1).
45 S 108(3).
(a) General
The legislative authority of a provincial legislature is entrenched in the Constitution.
There is, in other words, a constitutional distribution of government authority between
the provinces and the national sphere and, as it forms part of the entrenched Consti-
tution, the courts exercise control over it. The Constitution provides that a pro-
vincial legislature is subject only to the Constitution and the provincial constitution
46
(if there is one). A provincial legislature has legislative authority over the following
47
matters:
48
• The adoption of a constitution for the province.
• A list of functional areas in respect of which the legislature has exclusive legisla-
tive authority.
• A list of functional areas in respect of which the legislature has concurrent legis-
lative authority (together with parliament).
49
• Any other matter that parliament by law assigns to the legislature.
50
• Any matter on which provincial legislation is envisaged in the Constitution.
• Any matter that is reasonably necessary for, or incidental to, the effective exercise
of a power concerning the functional areas on which the legislature has concur-
rent legislative authority.
• The delegation to a municipal council of any legislative authority, except the
authority to adopt a provincial constitution.
A provincial legislature may recommend to parliament the adoption of a law on a
matter on which the province has no authority. A legislature may by resolution
adopted by a two-thirds majority request parliament to change the name of the
province.51
(b) Exclusive and concurrent powers

A provincial legislature has exclusive legislative authority which it exercises on its
own and concurrent legislative authority that it shares with parliament.
A provincial legislature has exclusive legislative authority over the list of functional areas
52
in schedule 5 of the Constitution.
Schedule 5 contains the following functional areas: abattoirs, ambulance services,
archives, libraries and musea (excluding national archives, libraries and musea),
liquor licences, provincial planning, provincial cultural affairs, sport, recreation and
amenities, provincial roads and traffic and veterinary services. In addition, a provincial
53
legislature can make laws on a variety of local government matters.
________________________
46 S 104(3).
47 S 104.
48 See para 2.3.1.
49 S 44(1)(a)(iii). Parliament can, of course, withdraw the authority.
50 See, eg, ss 120(2) and 140(4).
51 S 104(2).
52 S 104(1)(b)(ii), read with schedule 5.
53 Schedule 5 part B. See ch 12. Note, however, that a provincial legislature may legislate on these
matters only to the extent that it is necessary for the performance of the province’s monitoring
functions in respect of local government (s 155(6)(a) and (7)).
A provincial legislature shares concurrent legislative authority with parliament over the
54
list of functional areas in schedule 4 of the Constitution. The list is more extensive
than in the case of the exclusive powers.
Schedule 4 contains the following functional areas: administration of indigenous for-
ests, agriculture, airports (excluding national and international airports), animal con-
trol and diseases, casinos, racing, gambling and wagering (but not lotteries), consumer
protection, cultural affairs, disaster management, education (excluding tertiary educa-
tion), environment, health services, housing, indigenous law and customary law, in-
dustrial promotion, language policy, nature conservation (excluding national parks,
botanical gardens and marine resources), media service, police (to the extent that the
Constitution confers legislative authority on the provinces), pollution control, popula-
tion development, property transfer fees, provincial public enterprises, public trans-
port, public works, regional planning and development, road traffic, soil conservation,
tourism, trade, traditional leaders, urban and rural development, vehicle licensing and
welfare services. This concurrent list also includes a large number of local government
55
matters.
Apart from the exceptional case of laws that are adopted in the exercise of the
national government’s powers of intervention,56 legislation of the national govern-
ment on exclusive provincial matters will be unconstitutional and can be declared
invalid by the courts. This corresponds to the position in states such as the USA and
57
Canada. In the Liquor Bill case the Constitutional Court defined the exclusive
functional area “liquor licences” narrowly, but nevertheless held that aspects of the
national Liquor Bill were unconstitutional insofar as they interfered with the exclu-
58
sive powers of the provinces. In the Mashavha case it was held that the provinces do
not have the capacity to manage social assistance, and the authority of the provinces
over the concurrent functional area of welfare was watered down in this respect.59
A provincial legislature has full legislative authority over the matters indicated in
the Constitution and could adopt laws in that regard from the commencement of
the Constitution. For the sake of efficiency, the Interim Constitution as well as the
Constitution provided that the President could assign existing laws to the provinces
on matters in respect of which the provinces would henceforth have legislative
authority.60 This had the advantage that serious legislative voids were prevented and
________________________
54 S 104(1)(b)(i), read with schedule 4. See Brand D “Development of concurrent legislation: a

new South African perspective” Konrad Adenauer Stiftung Seminar Report Subnational Consti-
tutional Governance (1999) 37; Leonardy U and Brand D “The defect of the constitution: con-
current powers are not co-operative or competitive powers” 2010 TSAR 657.
55 Schedule 4 part B. See ch 12. Note, however, that a provincial legislature may legislate on these
matters only to the extent that it is necessary for the performance of the province’s monitoring
functions in respect of local government (s 155(6)(a) and (7)).
56 S 44(2). See para 2.4.
57 See Hogg PW Constitutional Law of Canada (1999) 345 ff on the doctrines which have devel-
oped eg, in Canada to lessen the impact of judicial review in this regard.
58 Ex parte President of the RSA: In re: Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC), 2000 1
SA 732 (CC). See the discussion of the case by Malherbe R “The role of the Constitutional
Court in the development of provincial autonomy” 2001 SA Public Law 255 276–278, who avers
inter alia that the Court’s narrow approach has widened the door for the national parliament
to intervene in exclusive provincial matters – see also para 2.4.
59 Mashavha v President of the RSA 2004 12 BCLR 1243 (CC), 2005 2 SA 476 (CC). See the critique
of the decision by Malherbe R “Grondwetlike bevoegdheidsverdeling: ’n stap agteruit vir
provinsiale regering?” 2005 TSAR 862–871.
60 S 235 of the Interim Constitution and item 14 of schedule 6 of the Constitution – see the
discussion in para 2.3.3. Note that laws assigned in terms of the Interim Constitution are
deemed to be assigned in terms of the Constitution (item 14(5) of schedule 6).
that the provinces could take up the administration of matters under their authority
right from the start. In principle, this arrangement does not inhibit the legislative
authority of the provinces. Hence, a province may adopt its own legislation on a
matter under its authority, or may continue to administer the applicable “national
61
law”, if and insofar as that law has been assigned to the province.
It is a question whether a national law that has been assigned to a province becomes a
provincial law that can be amended or repealed by the provincial legislature. In the
DVB Behuising case the Constitutional Court held, first, that a province has the implicit
62
power to repeal provincial legislation. Secondly, the question is when a law becomes
provincial legislation. On this, the court held that the power of a province to amend or
repeal legislation on a concurrent matter depends on whether the overrides of section
146 apply to it. If section 146 applies, the legislation has not been assigned and the
63
province may not amend or repeal it. In the particular case the court distinguished
between those parts of the legislation that could be assigned and those that could not
64
be assigned. On the basis of this judgment the question may then be answered as fol-
lows: In the case of a matter within the exclusive authority of the provinces (schedule
5), parliament lost its legislative authority in terms of the Constitution, and it is evi-
dent that the provincial legislature can deal with the law as it deems fit. In the case of a
concurrent matter (schedule 4), parliament retains its legislative authority. A provin-
cial legislature should, however, be able to adopt its own law on the matter, replacing
the national law that has been assigned to the province. However, may the provincial
legislature amend the law as it deems fit? On the face of it, it should be possible, unless
and to the extent that the overrides of section 146 apply. The law, or the part in ques-
tion, became a provincial law on its assignment – hence the provision that the Presi-
65
dent, when assigning it, may amend the law to fit the province. May parliament amend
the law? To the extent that the law in question became a provincial law upon its as-
signment, and unless and to the extent that the overrides of section 146 apply, it does
not, on the face of it, seem possible. Parliament should, however, be able to re-enact a
new, amended law, or to amend a part of the law that has not been assigned. However,
as it concerns a concurrent matter, in practice these questions should all be answered
within the framework of the principle of co-operative government. This requires that
the matter be proceeded with by way of consultation, co-operation and co-ordination
between the province and the national government (and other provinces, if neces-
66
sary).
The subjects in schedules 4 and 567 entail functional areas and not necessarily specific
68
matters. This implies that a province does not necessarily exercise complete
________________________
61 S 125(2). See para 2.3.3.

62 Ex Parte Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v North West Provincial
Government 2000 4 BCLR 347 (CC), 2001 1 SA 500 (CC) paras 20–21.
63 Para 33. See the discussion of the case by Malherbe R “The role of the Constitutional Court in
the development of provincial autonomy” 2001 SA Public Law 273–274; Currie I and De Waal J
The New Constitutional and Administrative Law I: Constitutional Law (2001) 202 ff.
64 Para 63–65. In the determination of this difference, the court refers to the “pith and sub-
stance” doctrine as applied in India, Canada and Australia (para 36) – see below. See on Can-
ada Hogg PW Constitutional Law of Canada (1999) 350 ff.
65 Item 14(2) of schedule 6. See also In re: KwaZulu-Natal Amkhosi and Iziphakanyiswa Amendment
Bill of 1995: In re: Payment of Salaries, Allowances and other Privileges to the Ingonyama Bill of 1995
1996 7 BCLR 903 (CC), 1996 4 SA 653 (CC) para 12.
66 See para 2.4.
67 With regard to the powers which the provinces have in terms of the two schedules, the Consti-
tutional Court held in In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253
(CC), 1996 4 SA 744 (CC) (para 457): “Our analysis has led us to conclude that the powers of
the provinces in terms of the New Text schs 4 and 5 are marginally less than or inferior to the
powers enjoyed by the provinces in terms of the Interim Constitution sch 6.”
authority over every area. In the case of the exclusive matters, the provinces take full
responsibility. If justified in terms of its powers of intervention, parliament will,
however, be able to make laws on those matters if a province fails to do so.69 In the case
of the concurrent matters, the provinces and parliament share legislative authority
and parliament will make provision whenever a province does not. A province may,
for example, decide not to take up agriculture completely, with the result that the
remainder of matters falling under that functional area remains under the jurisdiction
70
of the national government. The fact that the schedules refer to functional areas also
means that in jurisdictional disputes it will always have to be settled whether a law falls
71
within a particular functional area, before its constitutionality is investigated further.
From the possibility that a province does not exercise complete authority over a
particular functional area, it follows that the extent of the legislative powers of the
provinces may eventually differ. From this, an asymmetrical relationship between the
national and provincial spheres of government may develop in terms of which some
provinces enjoy more autonomy than others. The notion of asymmetry entails that
differences among regional units with regard to factors such as size, population
figures, resources, and financial and administrative capacity should be reflected in
72
their powers or extent of autonomy within the country. In most states, the regional
units are formally regarded as equal, and they have the same powers, but in coun-
tries such as Canada, Malaysia and Spain constitutional provision is made for differ-
73
ent degrees of autonomy.
(c) Pre-eminence in respect of concurrent powers
In the case of concurrent powers, national legislation prevails over provincial legis-
lation if it complies with certain criteria.
Whenever levels of government share concurrent legislative authority, an arrangement
is required for those cases in which their legislation on the same matter is in
conflict.74 Section 146 of the Constitution contains an extensive arrangement in this
regard. Of course, when a conflict occurs, the question to be determined before
section 146 is applied is whether both legislatures have acted within their respective
________________________
68 S 104(1)(b). S 126(1) of the Interim Constitution also referred expressly to “matters which fall
within the functional areas specified in Schedule 6”.
69 S 44(2). See para 2.4.
70 Devenish G “The prospects for constitutional litigation in relation to the powers of the central
and provincial governments as contained in the Interim Constitution, and related issues” 1996
THRHR 34 43–44 is of the same opinion.
71 That is also the approach in Canada – see Hogg PW Constitutional Law of Canada (1999) 350–
352. Also see De Ville J “Guidelines for judicial review on ‘division of powers’ grounds” 1995
Stell LR 139 147. See further below.
72 See the various contributions in De Villiers B (ed) Birth of a Constitution (1994) particularly
those of Mullins A and Saunders C “‘Different strokes for different folks?’: some thoughts on
symmetry and difference in federal systems” 41 ff; Boase JP “Faces of asymmetry: German and
Canadian federalism” 90 ff.
73 See, eg, in De Villiers B (ed) Birth of a Constitution (1994) in respect of Canada, Brown-John L
“Asymmetrical federalism: keeping Canada together?” 111 ff; and in respect of Spain, Agranoff
R “Asymmetrical and symmetrical federalism in Spain: an examination of intergovernmental
policy” 61 ff. On the basis of these and other case studies Kalema R “Intergovernmental rela-
tions in South Africa: a comparative analysis” Konrad Adenauer Stiftung Seminar Report Pro-
vincial Government in South Africa (2001) 25 34 also expresses himself in favour of an
asymmetric development in South Africa.
74 For a brief overview see Okpaluba C “Judicial attitude towards unconstitutionality of legisla-
tion: A Commonwealth perspective (Part I)” 2000 SA Public Law 50 70–77.
75
spheres of competence when enacting the laws. To determine this question, the
76
purpose and effect of a particular law should be considered. The latter approach is
akin to the so-called “pith and substance” doctrine which is used in states such as
Canada, India and Australia to determine the essence of a law before it is decided
whether the legislature concerned has acted within its field of competence.77 Section
146 provides that national legislation on a concurrent matter that applies uniformly
to the country as a whole, prevails over conflicting provincial legislation if it complies
with any of certain conditions (if it does not comply with any one, the provincial
78 79
legislation prevails). The conditions are the following:
(i) The national legislation deals with a matter that cannot be regulated effectively by
provincial legislation.80
(ii) The national legislation deals with a matter that, to be dealt with effectively,
requires uniformity and the national legislation does that by providing norms and
81
standards, frameworks or national policies. The second part is important and national
legislation that contains too much detail and thus goes further than merely establish-
ing norms and standards, or frameworks, or national policy, will not prevail under
this condition.
________________________
75 See Klaaren J “Federalism” in Chaskalson M et al (eds) Constitutional Law of South Africa (1998)
paras 4.1–2. paras 5.5–6.
76 In re: KwaZulu-Natal Amkhosi and Iziphakanyiswa Amendment Bill of 1995: In re: Payment of Salaries,
Allowances and other Privileges to the Ingonyama Bill of 1995 1996 7 BCLR 903 (CC), 1996 4 SA 653
(CC) para 19.
77 Hogg PW Constitutional Law of Canada (1999) 350 ff; Seervai Constitutional Law of India (1991)
269–275. The Constitutional Court has already used the doctrine in Ex Parte Western Cape Pro-
vincial Government: In re DVB Behuising (Pty) Ltd v North West Provincial Government 2000 4 BCLR
347 (CC), 2001 1 SA 500 (CC) para 36; Ex parte President of the RSA: In re: Constitutionality of the
Liquor Bill 2000 1 BCLR 1 (CC), 2000 1 SA 732 (CC) paras 63–65. See the brief overview by
Okpaluba C “Judicial attitude towards unconstitutionality of legislation: A Commonwealth per-
spective (Part I)” 2000 SA Public Law 65–68.
78 S 146(5). See with regard to this construction Leonardy U “Constitutional provisions on
devolution and federalism” in De Villiers B (ed) Birth of a Constitution (1994) 157. See Hotel
Slots (Pty) Ltd v Minister of Safety and Security 1999 8 BCLR 895 (NC).
79 See the discussion of the criteria contained in s 146 by De Ville J “Guidelines for judicial review
on ‘division of powers’ grounds” 1995 Stell LR 152–156. See also Venter F “Aspects of the South
African Constitution of 1996: an African democratic and social federal Rechtsstaat?” 1997
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 51 63–72.
80 According to Klaaren J “Federalism” in Chaskalson M et al (eds) Constitutional Law of South Africa
(1998) para 5.14 this condition is reminiscent of the subsidiarity principle. In Mashavha v Presi-
dent of the RSA 2004 12 BCLR 1243 (CC), 2005 2 SA 476 (CC) it was decided that the assign-
ment of the Social Assistance Act 59 to 1992 to the provinces was invalid on the ground that the
provinces do not have the capacity to manage social assistance (old age pensions, child mainte-
nance, etc) effectively. The court makes several assumptions about the capacity and attitude of the
provinces and also fails to take into account that the capacity of the various provinces differs. The
result of the judgment is that social assistance is in effect declared as a national affair, and that
the authority of the provinces over the concurrent functional area of welfare has been watered
down in this respect (see the comments of Malherbe “Grondwetlike bevoegdheidsverdeling: ’n
stap agteruit vir provinsiale regering?” 2005 TSAR 862–871).
81 Cf s 75 of the German Constitution which provides for so-called framework legislation that
provides only general rules within which the states may adopt detailed legislation. Previously,
instead of the criterion of effectiveness, this condition merely referred to the interests of the
country. This led the Constitutional Court to the conclusion in In re: Certification of the Constitu-
tion of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) that, in comparison with
the Interim Constitution, the overrides have been expanded to some extent in favour of the
national government (paras 337 and 480).
(iii) The national legislation is necessary for:
• the maintenance of national security;
• the maintenance of economic unity;
• the protection of the common market in respect of the mobility of goods, services,
capital and labour;
• the promotion of trade across provincial boundaries;
• the promotion of equal opportunity or equal access to services; or
• the protection of the environment.
(iv) National legislation also prevails if it is aimed at the prevention of unreasonable
action by a province that is prejudicial to the economic, health or security interests
of another province or the country, or impedes the implementation of national
82
economic policy. The requirement that the national legislation must apply uni-
formly to the whole country does not apply here, because the national legislation
must indeed in such a case be able to apply to the actions of a single province.
It may seem as if a different point of departure from the Interim Constitution applies
in section 146. Previously, the provincial law prevailed unless the national law complied
83
with the stated criteria. Now the national legislation prevails if it complies with the
criteria. There is no difference, not even with regard to the burden of proof. The Con-
stitution lays down criteria for national legislation only, and in every dispute it will
have to be determined whether in fact the national legislation complies with any of
them. There will always be a burden of proof on those who allege that the national
legislation must prevail to establish that the national legislation complies with the cri-
teria. It would have made a difference only if particular criteria were laid down for
provincial legislation as well.
Formally, section 146 imposes no conditions on the exercise of their legislative
authority by parliament or the provinces in respect of the concurrent matters and it
84
does not limit their legislative authority. Both spheres of government may freely
make laws in this regard. Section 146 only provides which law prevails in the case of a
85
conflict. From this, it can inter alia be inferred that the American “field pre-
emption” doctrine does not apply in South Africa. According to the doctrine, a
national law may regulate a particular field so completely that it leaves no room for a
province also to adopt a law on that matter, and that any provincial law in that
regard will be invalid.86 According to the South African approach to the concurrent
powers, parliament cannot exclude the legislative powers of the provinces over these
87
matters and a province will still be able to adopt legislation on the matter. Section 146
________________________
82 S 146(3).
84 That was also the position in respect of concurrent powers under the Interim Constitution – In
re: The National Education Policy Bill No 83 of 1995 1996 4 BCLR 518 (CC), 1996 3 SA 289 (CC)
para 14.
85 That was also the position in terms of the Interim Constitution – Premier of KwaZulu-Natal v
President of the RSA 1995 12 BCLR 1561 (CC), 1996 1 SA 769 (CC) para 25; Executive Council,
Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC), 1995 4 SA 877 (CC) pa-
ra 90.
86 In Canada and Australia this is referred to as “covering the field” or “defining the field” Hogg PW
Constitutional Law of Canada (1999) 345 ff 397; Hanks P Constitutional Law in Australia (1991)
218 ff; Blackshield T, Williams G and Fitzgerald B Australian Constitutional Law: Theory, Commen-
tary and Materials (1996) 473 ff.
87 The judgment in In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995; In re:
Payment of Salaries, Allowances and other Privileges to the Ingonyama Bill of 1995 1996 7 BCLR 903
(CC), 1996 4 SA 653 (CC) seems to support the view that one legislature cannot exclude the
will be invoked only in the case of a conflict. The approach is confirmed by section
149, which provides that when, in the case of a conflict, legislation prevails, the other
legislation is not invalid, but is inoperative as long as the conflict continues.88
In other states with a constitutional distribution of powers between the levels of
government, similar criteria as in section 146 are employed to determine when
national legislation will prevail. Uniformity, effectiveness, protection of the national
economy and the common market and the promotion of inter-provincial commerce
are well-known concepts for this purpose in states such as the USA, Germany, Can-
89
ada and Australia. Sometimes, however, the courts experience difficulties with the
adjudication of the question whether particular legislation is necessary – the require-
ment in paragraph (iii) above. The American Supreme Court has adopted the atti-
tude that it is a question better dealt with through the political structures than the
judicial process.90 The German Federal Constitutional Court follows a similar ap-
91
proach. In an obvious attempt to alleviate the burden on the courts in answering
this question, the South African Constitution provides that in a dispute over the
question whether national legislation is necessary, the court must have due regard to
92
the approval or rejection of the legislation by the National Council of Provinces.
The constitutional text initially provided that national legislation on the aspects men-
tioned in paragraph (iii) which had been approved by the National Council of Prov-
inces, had to be presumed to be necessary.93 This created a rebuttable presumption
which, admittedly, did not exclude the jurisdiction of the courts over this particular
aspect, but put the burden of proof on somebody who disputed the necessity of the
________________________
legislative power of the other. (Klaaren J “Federalism” in Chaskalson M et al (eds) Constitutional

Law of South Africa (1998) para 5.9 refers to such exclusion as a “total jurisdictional veto”.)
88 See below and see In re: The National Education Policy Bill No 83 of 1995 1996 4 BCLR 518 (CC),
1996 3 SA 289 (CC) paras 16–20 where this approach was applied already in the case of the In-
terim Constitution. Klaaren J “Federalism” in Chaskalson M et al (eds) Constitutional Law of South
Africa (1998) paras 5.9–10 is therefore not correct when he avers that the doctrine will probably
be applied in South Africa. Okpaluba C “Judicial attitude towards unconstitutionality of legisla-
tion: A Commonwealth perspective (Part I)” 2000 SA Public Law 77 is also incorrect when he
infers from s 149 the existence of the doctrine in South African law.
89 See, eg, in respect of the USA Hay P and Rotunda RD The United States Federal System: Legal
Integration in the American Experience (1982); in respect of Germany Currie DP The Constitution of
the Federal Republic of Germany (1994) 33 ff; in respect of Canada Hogg PW Constitutional Law of
Canada (1999) 371 ff; in respect of Australia Devenish G “The prospects for constitutional liti-
gation in relation to the powers of the central and provincial governments as contained in the
interim Constitution, and related issues” 1996 THRHR 34 39 ff. See also the discussion of the
provision in the American Constitution on inter-state commerce, the so-called “commerce
clause” by Devenish G “The prospects for constitutional litigation in relation to the powers of
the central and provincial governments as contained in the interim Constitution, and related
issues” 1996 THRHR 34 48 ff.
90 See, eg, Garcia v San Antonio Metropolitan Transit Authority (1985) 469 US 528. This decision was
strongly criticised. See eg, Hicks JE “Garcia v San Antonio Metropolitan Transit Authority: federal-
ism revisited” 1986 Oklahoma City University Law Review 393; Cantrell CL “Judicial review in
American federalism: an uncertain future” 1986 Detroit College of Law Review 995; Denny WP
“Breakdown of the political safeguards of federalism: a response to Garcia v San Antonio Metro-
politan Transit Authority” 1987 Journal of Law and Politics 749.
91 Kommers DP The Constitutional Jurisprudence of the Federal Republic of Germany (1989) 98.
92 S 146(4).
93 In the Afrikaans text the term “geag word nodig te wees” was used. The Afrikaans text did not
reflect the English accurately. In previous versions of the bill, the term “must be regarded as
necessary” was used, and as an irrebuttable presumption that could indeed have been trans-
lated as “geag word nodig te wees”. The use of the term “must be presumed to be necessary” in
the final text, indicated, however, an intention to create a rebuttable instead of an irrebuttable
presumption.
94
national legislation. The provision was unnecessary and undesirable. Section 148
provides in any case that if the court is unable to resolve a dispute concerning a con-
flict between national and provincial legislation, the national legislation will prevail.
That gives sufficient recognition to the difficulties that the courts may experience in
jurisdictional disputes, but quite correctly leaves it to the discretion of the courts
whether or not they are prepared to deliver judgment in a particular case. Eventually,
the rebuttable presumption proved to be one of the grounds on which the Constitu-
95
tional Court refused to certify the initial constitutional text.
A few additional remarks should be made about the concurrent legislative powers.
• Section 146 refers throughout to “legislation”, which includes subordinate legis-
lation such as proclamations and regulations. This implies that a regulation may
prevail over a law of an elected legislature. In view of the constitutional status of
96
parliament and the provincial legislatures, that is in principle undesirable. In a
clumsy attempt to avoid such a result, section 146(6) provides that subordinate
legislation will be able to prevail over an act only if it has been approved by the
National Council of Provinces. Therefore, if the intention is that a particular
regulation by the national government, for example, must prevail over provincial
laws, the functionary concerned must refer it to the Council for approval. (If the
Council does not take a decision within 30 days after the regulation has been re-
ferred to it, the regulation must be deemed to have been approved by the Coun-
cil. If the Council does not approve the regulation, it must, within 30 days, supply
reasons for the decision to the body that has referred the regulation to the
Council.)
• National legislation may also prevail over a provincial constitution. If a provincial
constitution contains provisions on a concurrent matter, section 146 applies and
national legislation will prevail over the provincial constitution if it complies with
97
the conditions set out above.
• Whenever a court considers an alleged conflict between national and provincial
98
legislation, it must prefer any reasonable interpretation that avoids a conflict.
Various doctrines have been developed in other states concerning the questions
of what a conflict is and how the courts can avoid a finding that there is a con-
99
flict.
________________________
94 According to the Constitutional Court this was a difficult, even formidable, onus – In re: Certifica-
tion of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) paras 336
and 337 n 277.
(CC) para 480.
96 In Federation of School Governing Bodies for South African Schools v MEC for Education Gauteng 2016
8 BCLR 1050 (CC), 2016 4 SA 546 (CC) the Constitutional Court refrained from addressing
the issue on conflicting national and provincial legislation and regulations made in terms of
such legislation. Instead, the Court argued that the relevant regulations on school admission
policies were not in conflict with the relevant legislation and thereby neatly sidestepped the
section 146 inquiry. For a discussion of the case, see Venter R and Kgori D “School admission
policy versus access to education: the end of the road for school governing bodies?” 2017 TSAR
662-679, especially at 668–669.
97 S 147.
98 S 150. Cf ss 35(2) and 232(3) of the Interim Constitution. The Constitution does not contain
such a provision elsewhere anymore. S 126(5) of the Interim Constitution provided that the
legislation had to be construed as being consistent with each other, unless they were, expressly
or by necessary implication, inconsistent with each other. See in this regard De Ville J “Guide-
lines for judicial review on ‘division of powers’ grounds” 1995 Stell LR 156–159.
99 See with regard to Canada Hogg PW Constitutional Law of Canada (1999) 364 ff and with regard
to Australia Devenish G “The prospects for constitutional litigation in relation to the powers of
issues” 1996 THRHR 34 210 ff.
• A decision by a court that legislation prevails over other legislation does not
invalidate that other legislation, as long as it has been enacted within the sphere
of competence of the legislature in question and is otherwise valid. The legislation
100
is inoperative, however, as long as the conflict remains. The legislation there-
fore remains valid and will apply in respect of those parts not declared subordi-
101
nate. If the conflict is removed through amendment or repeal, the legislation of
which the application has been suspended will simply become operative again.
(d) Financial powers
The provinces have limited taxing powers, and are entitled to an equitable share of
102
the national revenue.
The underlying principle is that there is a single revenue system in the Republic and
that all income is primarily imposed, collected, divided and used on a national basis.
Governments in the three spheres are all dependent on the national revenue fund.
The national revenue is administered in a similar way in Argentina, Brazil, Malaysia,
103
Mexico and India. Accordingly, the provinces have limited financial powers. A
provincial legislature may impose taxes, levies or duties, excluding income tax, value-
104
added tax, general sales tax, property rates and customs duties. A provincial legis-
lature may however impose flat-rate surcharges on taxes imposed by national legis-
lation, except in the case of corporate taxes, value-added tax, property rates and cus-
105
toms duties. A province should also be entitled to impose taxes on casinos,
gambling, wagering, lotteries and betting.106 However, the taxing powers of a pro-
vincial legislature must be regulated in terms of an act of parliament.107 The act must
be adopted according to the procedures for bills affecting the provinces, in terms of
which the National Council of Provinces can compel the National Assembly to adopt
108
the bill with a two-thirds majority. A provincial legislature may not exercise its
________________________
100 S 149. This approach can already be found in In re: The National Education Policy Bill No 83 of
1995 1996 4 BCLR 518 (CC), 1996 3 SA 289 (CC): “If the conflict is resolved in favour of ei-
ther the provincial or the national law the other is not invalidated; it is subordinated and to
the extent of the conflict rendered inoperative.” – Chaskalson CJ para 19. See also De Ville J
“Guidelines for judicial review on ‘division of powers’ grounds” 1995 Stell LR 159. See Hogg
PW Constitutional Law of Canada (1999) 407–408 for the application of this approach in Canada.
101 See Papachristoforou v MEC for Finance and Economic Affairs, North West Province 1998 10 BCLR
1237 (B) in which on the basis of this principle it was held that the provincial Gambling Act
in question prevailed over the national Gambling Act, but that the latter would still apply in
those provinces that had not enacted their own gambling laws.
102 See the comprehensive study by Brand D Financial Constitutional Law: A Comparison Between
Germany and South Africa (2006).
103 Tapscott C “Intergovernmental relations in South Africa: a comparative analysis” in Depart-
ment of Constitutional Development and Provincial Affairs Intergovernmental Relations: An In-
ternational Comparative Study (1998) 9 23–25.
104 S 228(1)(a).
105 The Constitution does not refer to the imposition of user charges any more – s 156(3) of the
Interim Constitution.
106 The Constitutional Court held that the power to impose gambling taxes has, in effect, been
transferred from an exclusive to a concurrent power – In re: Certification of the Constitution of
the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) paras 441–442.
107 The act may be adopted only after consideration of recommendations by the Financial and
Fiscal Commission (s 228(2)(b)).
108 S 76(4)(b). See ch 8 para 2.5.7.4. The requirement laid down by the Interim Constitution
that the act had to be adopted by both houses sitting separately and which afforded the
Senate a veto, was deleted – s 156(1) and (1A) of the Interim Constitution. The Constitu-
tional Court was unable to find that, in comparison with the Interim Constitution, this
power to impose taxes in a way that materially and unreasonably prejudices national
economic policy, economic activities across provincial boundaries or the national
mobility of goods, services, capital or labour. A province may raise loans for capital
or current expenditure within the framework of reasonable conditions prescribed by
109
an act of parliament.
In terms of the Constitution, the Intergovernmental Fiscal Relations Act provides
for the equitable distribution of the national revenue among all three spheres of
110
government and for any other allocations to the provinces and municipalities. The
actual distribution of revenue takes place annually in a special division of revenue
act which is adopted inter alia after deliberations in a budget council between the
111
national and provincial ministers of finance. Factors that must be taken into ac-
count in the distribution include:
• the national interest and needs;
• the assurance that the provinces and municipalities are able to provide basic
112
services and to perform their functions;
• the fiscal capacity and efficiency of provinces and municipalities and their devel-
opmental and other needs;
• economic disparities;
• obligations of provinces and municipalities; and
• the desirability of stable and predictable allocations and the need for flexibility.
Additional revenue generated by provinces or municipalities may not be deducted in
the determination of their share, but the national government also need not com-
pensate provinces or municipalities that do not raise income in accordance with
113
their capacity. In contrast to the Interim Constitution, the Constitution does not
set out that a province’s share of the national revenue must be based on a percen-
tage of individual income tax and of value-added tax (or other sales tax) collected
nationally, as well as a percentage of the national fuel levy, and that a province is
________________________
change constituted a diminution of provincial powers – In re: Certification of the Constitution of

the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 413.
109 S 230(1). The recommendations by the Financial and Fiscal Commission must first be
considered, but the requirement that the act must be adopted by both houses sitting sepa-
rately has also been deleted here – s 157(1) and (1A) of the Interim Constitution.
110 Act 97 of 1997. See ss 214(1) and 227(1) of the Constitution. See Brand D “The South
African Constitution: three crucial issues for future development” 1998 Stell LR 182. See in
general on the financial relations between the spheres of government, Malherbe R and Brand
D “South Africa: Sub-national Constitutional Law” International Encyclopaedia of Laws: Constitu-
tional Law (2001) 56–59; Murray C and Simeon R “South Africa’s financial constitution: to-
wards better delivery?” 2000 SA Public Law 477. The act could be adopted only after
consultation with the provinces and organised local government and after consideration of
the recommendations of the Financial and Fiscal Commission. See with regard to the func-
tions of the Commission ss 220–222 and the Financial and Fiscal Commission Act 99 of 1997,
and with regard to the Commission as it has functioned in terms of the Interim Constitution,
Mokgoro J “Interprovincial fiscal equalization: the role of the Financial and Fiscal Commis-
sion” in De Villiers B (ed) Birth of a Constitution (1994) 281.
111 The budget council has been created in terms of s 2 of the Intergovernmental Relations Act.
See Murray C and Simeon R “South Africa’s financial constitution: towards better delivery?”
2000 SA Public Law 493 on the activities of the budget council.
112 See para 2.4(c) on the problem of unfunded mandates.
113 S 227(2).
114
entitled to the transfer duty on property transactions in the province concerned.
However, an equitable share as required by the Constitution can hardly be deter-
mined without taking into account these sources of revenue. All revenue received by
a province must be paid into a provincial revenue fund and money may be
withdrawn from it only in terms of an act of the relevant provincial legislature.115 The
form and other particulars with regard to the budget of a province must be pre-
116
scribed by national legislation. There is national treasury control over the finances
117
of the provinces. Lastly, the principle of co-operative government should also
118
determine the fiscal relationship between the spheres of government.
2.3.2.3 Functioning
A provincial legislature functions, for all intents and purposes, like the National
Assembly.
The provisions in the Constitution with regard to the functioning of a provincial
legislature largely correspond to those applicable to the National Assembly.119 A
provincial legislature has a continuous session and sits on the days and at the times
that it determines for itself.120 At its first sitting, every legislature elects a speaker and
a deputy speaker, who perform the same functions with regard to the provincial
legislature as the speaker and deputy speaker with regard to parliament.121 A legis-
lature makes its own rules of procedure and determines the powers and privileges of
its own members, of which the most prominent, the freedom of speech of members,
is guaranteed in the Constitution.122 A province’s permanent delegates to the
National Council of Provinces may participate in the proceedings of the provincial
legislature, but may not vote in it.123 A legislature may also require a permanent
delegate to attend the legislature.124 The quorum of a legislature is a majority of all
members if a vote is taken on a bill and one third when a vote is taken on any other
125 126
question. Decisions are taken by a majority of votes. The public has free access to
________________________
114 S 155(2)(a), (b), (c), (d) and (e) Act 200 of 1993. According to the Constitutional Court, the
absence of these particulars carries no weight at all – In re: Certification of the Constitution of the
RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 426.
115 S 226(1) and (2). A province’s share of the national income must be transferred to the
province promptly and without deduction – s 227(3).
116 S 215. The national legislation that deals with public finances is the Public Management
Financial Act 1 of 1999.
117 S 216.
118 See para 2.4.
119 Ss 110–124. See ch 8, particularly from para 2.5.
120 S 110(1).
121 See on the functions of a provincial speaker Gauteng Provincial Legislature v Kilian 2001 3
BCLR 253 (SCA), 2001 2 SA 68 (SCA).
122 Ss 116 and 117. S 117(1)(b) provides that a member shall not be liable to any action by
reason of anything he or she has said in, produced before, or submitted to, the legislature. A
legislature or a committee may summon any person to give evidence (s 115). In addition to
the Constitution, the Powers, Privileges and Immunities of Parliament and Provincial Legisla-
tures Act 4 of 2004 regulates the powers and privileges of provincial legislatures (s 117(2)).
123 S 113.
124 This relates to the provision that a permanent delegate can lose membership of the National
Council of Provinces if he or she has lost the confidence of the legislature (s 62(4)(c)).
125 S 112(1)(a) and (b).
126 S 112(1)(c). The presiding member has no deliberative vote, but must cast a deciding vote in
the case of an equality of votes, and may cast a deliberative vote if a two-thirds majority is required
(s 112(2)).
a provincial legislature and legislatures must facilitate public involvement in the
127
legislative and other processes.
The Constitution does not contain much detail on the legislative process in a pro-
128
vincial legislature and every legislature determines its own procedures. It is never-
theless provided that only a member of the executive council of the province, or a
committee or a member of the legislature may introduce a bill, and that only the
member of the executive council responsible for finance may introduce a money
bill.129 Like the President,130 the premier must assent to a bill adopted by the legisla-
ture, unless the premier refers the bill back because he or she is of the opinion that
131
it is unconstitutional. The provision is identical to the provision which applies to
acts of parliament and in which case unconstitutionality relates to the national Con-
132
stitution. In the case of the provinces, it could be argued that unconstitutionality
relates to the national Constitution or the relevant provincial constitution. The legis-
lature must reconsider the bill in the light of the premier’s reservations and if the
premier still has reservations when the bill is resubmitted to him or her, the premier
must assent to it, or refer it to the Constitutional Court for a decision.133 If the Court
decides that the bill is constitutional, the premier must assent to it.134 After assent,
the bill becomes an act and it must be published promptly. It takes effect when pub-
lished or at a later date determined in terms of the act.135 At least one fifth of the
members of a legislature may within 30 days of the assent to an act, apply to the Con-
136
stitutional Court for an order declaring the act unconstitutional.
________________________
127 S 118. Access may be regulated (s 118(b)). See Houston G “Public participation in provincial
legislative processes in South Africa” Konrad Adenauer Stiftung Seminar Report Provincial
Government in South Africa (2001) 53 56 who advances reasons why public involvement in the
activities of provincial legislatures should be promoted, and that it may be conducted eg, by
way of lobbying, constituency offices, petitions and public hearings. See also Murray C and
Nijzink L Building Representative Democracy: South Africa’s Legislatures and the Constitution (2002)
113 ff. This is the same duty imposed on the houses of Parliament – ss 59(1)(a) and 72(1)(a).
In Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC), 2006
6 SA 416 (CC) acts of Parliament were declared invalid on the ground of insufficient public
involvement in the legislative process.
128 The procedures of the majority of legislatures are based on standard rules provided by
parliament, although, in some cases, unique rules have been adopted – see eg, the Standing
Orders of the Gauteng Legislature April 1996. The procedures with regard to money bills must be
determined by law – s 120(2).
129 S 119. A money bill is a bill that appropriates money or imposes taxes, levies or duties
(s 120(1)(a)).
130 See ch 8 para 2.5.7.5.
131 S 121(1). This happened in the case of the Mpumalanga Petitions Bill – see In re: Constitu-
tionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002 1 SA 447 (CC).
132 S 79(1).
133 For an example of an assignment by a premier, see Premier: Limpopo Province v Speaker of the
Limpopo Provincial Government 2011 11 BCLR 1181 (CC), 2011 6 SA 396 (CC).
134 S 121(2) and (3).
135 S 123. Provincial acts must also be entrusted to the Constitutional Court for safe-keeping
(s 124). See in respect of acts of parliament s 82.
136 S 122. The same provisions further apply as in the case of acts of parliament (see s 80), but in
the case of parliament at least one third of the members of the National Assembly must sup-
port the application (s 80(2)(a)). The provision in the Interim Constitution in terms of
which a pending bill could be referred to the Constitutional Court has been omitted – see
Gauteng Provincial Legislature v Kilian 2001 3 BCLR 253 (SCA), 2001 2 SA 68 (SCA) para 29 in
which it was held that the speaker of the legislature could commit the legislature to pay the
costs in such a case.
A large part of the activities of provincial legislatures is taken up by the consider-
ation of national legislation (section 76 bills) that are referred to them by the
National Council of Provinces for the conferral of voting mandates on their del-
137
egations in the Council. It is a comprehensive process during which the provincial
legislatures consider the legislation, confer so-called negotiating mandates on their
delegations in the Council, receive feedback, and conduct a final debate for the con-
138
ferral of the voting mandates.
2.3.3 Executive authority

2.3.3.1 General 217
2.3.3.2 The premier 218
2.3.3.3 The executive council 220
2.3.3.1 General
The executive authority of a province vests in the premier who exercises his or her
powers together with an executive council.
The provisions of the Constitution in respect of the provincial executive authority
correspond in principle to the provisions of chapter 5 of the Constitution in respect
of the national executive authority.139
The premier, together with the other members of the executive council, exercises
the executive authority by:140
141
• initiating, preparing and implementing provincial legislation;
• implementing national legislation within the exclusive and concurrent functional
areas;
• administering national legislation outside those areas that has been assigned to
the province in terms of an act of parliament;
• developing and implementing provincial policy;
• co-ordinating the functions of provincial departments and administration; and
• performing other functions assigned to the province.
The Constitution may confer executive authority on a province directly. An example
142
is the executive authority of the provinces in respect of police. A province has
executive authority over national legislation within the exclusive and concurrent
functional areas only to the extent that the province has the administrative capacity
to assume effective responsibility.143 However, the provision places an obligation on
________________________
137 S 65(2); r 191(a) of the Rules of the National Council of Provinces.

138 See Taljaard R and Venter A “Parliament” in Venter A and Landsberg C (eds) Government and
Politics in the New South Africa (2006) 17 29.
139 Cf ss 125–141 on the provincial executive authority with ss 83–102 on the national executive
authority. See the discussion in ch 9.
140 S 125(2).
141 The implementation of provincial legislation is an exclusive provincial matter – s 125(5).
142 S 206(4). See in general ss 206 and 207. This is one of the powers which has been added
pursuant to the refusal by the Constitutional Court to certify the initial text – In re: Certifica-
tion of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) paras
391–401.
143 S 125(3). On the assignment of national legislation to the provinces, see Brand D “Develop-
ment of concurrent legislation – a new South African perspective” Konrad Adenauer Stiftung
Seminar Report: Subnational Constitutional Governance (1999) 37 39.
the national government to assist the provinces by way of legislation and other meas-
ures to develop the administrative capacity that is required for the effective exercise
of their powers. This obligation, which did not exist under the Interim Constitution,
may be regarded as a consequence of the principle of co-operative government. A
dispute between the national government and a province over the question whether
the province has the administrative capacity to administer a particular national law
must be referred to the National Council of Provinces for resolution within 30
days.144 How the Council must resolve the dispute is not clear. On the assumption
that a province’s peers in the Council will be able to render an objective judgment,
the idea is probably that the Council must investigate the dispute and resolve it by
resolution.
This matter illustrates the fact that a province does not automatically enjoy full
executive authority over every functional area mentioned in schedules 4 and 5. The
national government continues to administer existing national legislation on each of
these subjects until the President transfers it to a province.145 A similar arrangement
applied in terms of the Interim Constitution, but subject to the condition mentioned
above, namely that a province had to have the administrative capacity to exercise the
146
power in question. A transfer of legislation in terms of the Interim Constitution
147
remains effective. The condition in respect of the administrative capacity of prov-
inces is meaningful from a practical point of view. It may prevent the discontinua-
tion of a service to the public on account of the incapacity of a province, and it is
flexible because a province may request the transfer of only certain powers in accor-
dance with internal needs and circumstances. However, the condition does not
exclude the legislative authority of a province and carries the potential of conflict
between the spheres of government. In terms of section 104 a provincial legislature
has full legislative authority over any matter within the functional areas in the sched-
ules.148 The exercise of this legislative authority does not depend on the transfer of
national legislation in those areas by the President. It could have the result, for
example, that if the President should refuse to transfer a particular law on the
ground that the province in question does not have the required administrative
capacity to execute it, the provincial legislature could adopt its own law on that sub-
ject for the provincial executive council to execute. The national government would
not be able to prevent it, unless it could justify an intervention in terms of section
100.149 A provincial legislature may amend as it deems fit any national law which has
150
been transferred.
2.3.3.2 The premier

After every election, the premier of a province is elected by the provincial legislature
from among its members.151 The premier assumes office within five days by taking an
________________________
144 S 125(4).
145 Item 14(1) sch 6.
147 Item 14(5) sch 6.
148 See para 2.3.2.2.
150 In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995: In re: Payment of
Salaries, Allowances and other Privileges to the Ingonyama Bill of 1995 1996 7 BCLR 903 (CC), 1996
4 SA 653 (CC) para 12. See also para 2.3.2.2(b).
151 S 128(1). The same procedure is followed as in the case of the President (s 128(2)). The
election must take place within 30 days after the office has become vacant (s 128(3)). In Bra-
zil and the USA the governors of the states are directly elected, and in Argentina and India
the premiers are appointed by the national government.
oath or solemn affirmation and the term of office continues until a vacancy occurs
152
or a succeeding premier assumes office. The term of the legislature is five years
and normally the premier’s term will correspond to that. The premier may not serve
more than two terms,153 and may be removed from office by the legislature on the
grounds of misconduct, inability to perform the functions of office, or a serious
154
violation of the law.
The premier has the powers and functions entrusted to the office by the Constitu-
tion and other laws and is responsible for:155
• assenting to and referring back bills;
156
• the referral of bills to the Constitutional Court;
• summoning the legislature to an extraordinary sitting;
157
• the appointment of commissions of inquiry; and
• calling referenda.
The provision that the premier exercises the executive authority together with the
other members of the executive council corresponds to the position in terms of the
Interim Constitution. In terms of the latter, the premier had to exercise most of the
158
powers “in consultation with” the executive council. The expression “together
with” as it is now used in the Constitution does not change this position, and the
relationship between the premier and the other members of the executive council
remains the same. The provision still indicates that the premier requires the con-
currence of the executive council, but that the council expresses its concurrence in
159
accordance with its own decision-making procedures. No fixed rules of law exist in
this regard. The procedures and the extent of concurrence required depend on the
leadership position of the premier (within the province and within his or her party)
which enables him or her to play a strong leading role, but at the same time does not
allow the premier, without political risk, to take decisions totally without the
concurrence of the members of the executive council. This position is confirmed by
the provision that the members of the executive council, which includes the pre-
160
mier, are collectively and individually accountable to the provincial legislature. A
written decision by the premier concerning a function which falls under another
161
member of the executive council, must be countersigned by that other member.
________________________
152 Ss 129 and 130(1).

153 S 130(2). When a vacancy is filled, the period until the next election of a premier is not
regarded as a term.
154 S 130(3). In the case of misconduct or a serious violation of the law, no benefits may be
received from the office and no other public office may be held.
155 S 127(2).
156 See In re: Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC), 2002
1 SA 447 (CC).
157 In Minister of Police v Premier of the Western Cape 2013 2 BLCR 1405 (CC), 2014 1 SA 1 (CC)
paras 44-52 the court held that the rules it formulated in President of the RSA v SARFU 1999 10
BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 144-148 for the President’s appointment of com-
missions also apply to a premier’s power to appoint commissions, provided that the commis-
sion a premier appoints must concern a matter over which the province enjoys competence.
159 S 233(3) of the Interim Constitution provided that where in the Constitution it was required
that a decision be taken in consultation with another functionary, that other functionary’s
concurrence was required, but that where such other functionary was a body of persons, con-
currence was determined in accordance with that body’s own decision-making procedures.
160 S 133(2).
161 S 140(1).
Whenever necessary, a member of the executive council designated by the pre-
mier, or a member designated by the other members of the council, or the speaker
162
(until the legislature designates another member), acts as premier in this order.
2.3.3.3 The executive council

The executive council of a province is the “cabinet” of the province and fulfils the
same function in the province as the cabinet at national level. The council consists of
the premier as chairperson and at least five and at most ten members appointed by
163
the premier from among the members of the legislature. The premier assigns their
powers and functions to the members of the council and may dismiss them.
According to the courts, this includes the less far-reaching sanction of temporary
164
suspension. The premier may assign the duties of one member of the executive
council to another, and by so doing bring about a reshuffle of the council, and may
165
also temporarily assign a member’s duties to another in his or her absence.
Before assuming office, a member of the executive council must take an oath or
solemn affirmation. A member must act in accordance with a code of ethics that
must be prescribed by national legislation and, specifically, may not undertake any
other paid work, act in any way that is inconsistent with the office, expose himself or
herself to a situation that may lead to a conflict of interest, or abuse the position for
166
personal enrichment. The members of the executive council are responsible for
the functions of the executive authority which the premier assigns to them and are
collectively and individually accountable to the legislature for the performance of
167
those functions. This includes the premier as a member of the council. The coun-
cil must act in accordance with the Constitution168 and must provide the legislature
with regular and full reports on matters under their control. Delegated legislation
issued by members of the council is accessible to the public, and must be tabled in
the provincial legislature and be approved by it in the way determined by provincial
legislation.169 If the legislature by a majority of all members adopts a motion of no-
confidence in the executive council, including the premier, the premier and the
other members of the council must resign.170 If the motion of no-confidence ex-
cludes the premier, the premier must reconstitute the executive council. When the
legislature is dissolved for an election, the executive council remains competent to
function until a premier is elected and assumes office.171
172
The administrations of the provinces form part of the national public service
and a national Public Service Act has been adopted to structure the public service in
________________________
162 S 131.
163 S 132(1). The Western Cape Constitution provides for a larger executive council.
164 Mpehle v Government of the RSA 1996 7 BCLR 921 (Ck) 930.
165 Ss 137 and 138. In Montshioa v Motshegare 2001 8 BCLR 833 (B) it was held that a member of
the executive to whom powers of another member are to be transferred in terms of s 137 may
not exercise those powers before the transfer was validly executed by proclamation as re-
quired by s 137.
166 S 136. The Executive Members’ Ethics Act 82 of 1998 (see ch 9 para 4.4) applies to members
of provincial legislative councils.
167 S 133(1) and (2).
168 And certainly also in accordance with the provincial constitution, if there is one.
169 S 140(2) and (3).
170 S 141(2).
171 S 134.
172 S 197.
173
the national and provincial spheres of government. Hence, the provinces have
only limited powers with regard to their own administrations. In terms of the Consti-
tution, the provinces do have the authority to appoint staff.
2.4 Co-operative government

The Constitution introduces a principle of co-operative government which determines
the relationship among the different spheres of government.
174
In terms of the principle of co-operative government, the relationship among the
spheres of government is one of close co-operation within a larger framework that
recognises the distinctiveness of every component as well as the interrelatedness and
interdependence of all components. In addition to co-operation, the relationship
among the spheres of government is characterised by consultation, co-ordination
175
and mutual support.
The Constitution envisages legislation for the establishment of structures and in-
stitutions in which governments in the various spheres co-operate and through
176
which the principle is given effect. It took several years before this legislation was
177
adopted and, in the meantime, extensive statutory and informal structures that
regulate intergovernmental relations have been developed.178 These include the
________________________
173 Act 103 of 1994. In Premier, Western Cape v President of the RSA 1999 4 BCLR 382 (CC), 1999 3
SA 657 (CC) it was confirmed that the provinces do not have executive powers over the struc-
ture of their administrations. That is why a premier has to request the President if he or she
wishes to restructure the provincial administration. On the other hand, it was held (paras 84-
88) that the power of the national minister to transfer a provincial function to the national
sphere infringed the executive powers of the provinces and was unconstitutional.
174 This is referred to in ch 6 para 3.2.3. See the comprehensive study by Levy N and Tapscott C
(eds) Intergovernmental Relations in South Africa: The Challenges of Co-operative Government
(2001). See also Malherbe R and Brand D “South Africa: Sub-national Constitutional Law” In-
ternational Encyclopaedia of Laws: Constitutional Law (2001) 59–65.
175 On co-operation among the spheres of government, the Constitutional Court already stated
in terms of the Interim Constitution in In re: The National Education Policy Bill No 83 of 1995
1996 4 BCLR 518 (CC), 1996 3 SA 289 (CC) para 34 in respect of the exercise of the concur-
rent powers: “Where two legislatures have concurrent powers to make laws in respect of the
same functional areas, the only reasonable way in which these powers can be implemented is
through cooperation.” In In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR
1253 (CC), 1996 4 SA 744 (CC) para 290 it was stated: “Intergovernmental cooperation is
implicit in any system where powers have been allocated concurrently to different levels of
government.” See also Premier of the Province of the Western Cape v President of the RSA 1999 4
BCLR 382 (CC), 1999 3 SA 657 (CC) para 54; National Gambling Board v Premier of KwaZulu-
Natal 2002 2 BCLR 156 (CC), 2002 2 SA 715 (CC) para 36. For a discussion of this aspect of
the Western Cape case, see Mireku O “No victor, no vanquished? A comment on Premier, West-
ern Cape v President of the Republic of South Africa” 1999 SAJHR 563 565–568.
176 S 41(2). Although the provinces are directly involved in this legislation, it is not provided that
this legislation must be adopted in accordance with the procedure prescribed by s 76 and in
which the National Council of Provinces plays a stronger role on behalf of the provinces – see
ch 8 para 2.5.7.2.
177 The Constitutional Court questioned this neglect – National Gambling Board v Premier of
KwaZulu-Natal 2002 2 BCLR 156 (CC), 2002 2 SA 715 (CC) para 32.
178 For a comprehensive exposition see Mentzel C Development Perspectives on Policy Management
and the Dynamics of Intergovernmental Relations, with Specific Reference to the National and Meso
Levels of Government in South Africa (2000 D.Phil thesis RAU) 99 ff. See also Kalema R
“Intergovernmental relations in South Africa: a comparative analysis” Konrad Adenauer
Stiftung Seminar Report Provincial Government in South Africa (2001)25 ff. See in general on
intergovernmental relations, also in other states, De Villiers B “Intergovernmental relations: a
Financial and Fiscal Commission, the President’s co-ordinating council in which the
President meets with the provincial premiers, committees in which ministers and
179
members of provincial executive councils meet, a technical intergovernmental
committee, consisting of senior officials, other technical committees assisting the
political office-holders, and a budget council, in which the minister of finance and
180
the members of the provincial executive councils entrusted with finance serve.
These bodies are supported by agreements and continuous liaison on matters of
mutual interest among and within the spheres of government. The Intergovernmen-
181
tal Relations Framework Act was adopted in 2005. The purpose of the Act is to
facilitate co-ordination and monitoring of the implementation of policy and legisla-
182
tion, and the realisation of national priorities. The Act provides for an extensive set
of intergovernmental structures, and gives statutory effect to some of those that
already came into being informally. The Act also creates mechanisms and structures
183
for the settlement of disputes.
The Constitution gives expression in different ways to the idea of a close co-
operative relationship among the spheres of government.184 As a result, there is no
watertight separation between the spheres of government and their powers and
functions. In several judgments the Constitutional Court has emphasised the neces-
185
sity for co-operation, but the Court has held that the principle does not invade
186
provincial autonomy.
187
(a) Chapter 3 sets out the principles of co-operative government: Governments at the three
spheres of government are distinctive, interdependent and interrelated.
They must preserve the peace, national unity and the indivisibility of the Republic,
be loyal to the Constitution and the Republic and must secure the well-being of the
people. They must implement effective, transparent, accountable and coherent
government. They must respect the constitutional status, institutions, powers and
functions of government in other spheres, and must exercise their powers in a man-
ner that does not encroach on the geographical, functional or institutional integrity
________________________
constitutional framework” in De Villiers B (ed) Birth of a Constitution (1994) 256 ff, and “In-
tergovernmental relations: Bundestreue and the duty to co-operate from a German perspec-
tive” 1994 SA Public Law 430. See in respect of local government ch 12.
179 Called MINMEC. There is one statutory MINMEC, the one on police referred to in s 206(8)
of the Constitution. See on intergovernmental relations in education Bray E “The constitu-
tional concept of co-operative government and its application in education” 2002 THRHR 514.
180 See eg, De Villiers B “Intergovernmental relations in South Africa” 1997 SA Public Law 197;
Brand D “The South African Constitution: three crucial issues for future development” 1998
Stell LR 184–188; Murray C and Simeon R “South Africa’s financial constitution: towards bet-
ter delivery?” 2000 SA Public Law 493. See on the budget council s 2 of the Intergovernmental
Fiscal Relations Act 97 of 1997.
181 Act 13 of 2005.
182 S 4.
183 See the discussion by Malherbe R “Does the Intergovernmental Relations Framework Act 13
of 2005 confirm or suppress national dominance?” 2006 TSAR 810-818.
184 See infra. See with regard to local government, ch 12.
185 See the judgments in n 174, as well as MEC for Health, KwaZulu-Natal v Premier of KwaZulu-
Natal: In re Minister of Health v Treatment Action Campaign 2002 10 BCLR 1028 (CC), 2002 5 SA
721 (CC) para 12; Uthukela District Municipality v President of the RSA 2002 11 BCLR 1220 (CC),
2003 1 SA 678 (CC) paras 13–14. See Malherbe R “The role of the Constitutional Court in
the development of provincial autonomy” 2001 SA Public Law 275.
(CC) paras 287–292 and 469.
187 Ss 40 and 41.
188
of government in other spheres. They may not assume powers which the Con-
stitution does not confer on them. They must co-operate in mutual trust and good
faith by fostering friendly relations, assisting and supporting one another, informing
one another and consulting on mutual interests, co-ordinating their actions and
legislation, adhering to agreed procedures, and avoiding legal proceedings against one
189
another.
Although some principles appear to be unjusticiable and look more like guide-
lines for conduct (for example, when can it be said that a particular government
does not foster friendly relations with other governments, or that it does not assist
and support them?), as a whole they constitute a framework for the conduct of
governments in the various spheres towards one another. Some also provide a spe-
cific norm against which the constitutionality of a government’s actions can be
measured. It will definitely be possible to determine whether a government en-
croaches on the geographical, functional or institutional integrity of government in
another sphere and this norm should be taken into account when, for example, a
190
court must resolve a jurisdictional dispute in terms of section 146.
(b) Co-operative government is strengthened by the provision that is made for participation by
governments in decision-making in other spheres of government.
As the second house of parliament, the National Council of Provinces represents the
191
provinces in the national legislative process. Furthermore, the Council is repre-
sentative of the governments of each province due to the fact that the premier and a
192
few members of the executive council are members. In their turn, permanent
members of the Council may attend their provincial legislatures.193 In addition,
national bills affecting the provinces are submitted to the provincial legislatures for
________________________
188 S 41(1)(e) and (g). According to the Constitutional Court in In re: Certification of the Constitu-
tion of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 245, the fact that this
directive applies to all three spheres of government, does not have the result that constitu-
tional principle XXII, which provides that the national government may not encroach on
provincial government, is not complied with.
189 See the judgments in n 174 and n 184. In National Gambling Board v Premier of KwaZulu-Natal
2002 2 BCLR 156 (CC), 2002 2 SA 715 (CC) para 36–37 direct access to the Constitutional
Court was refused because the parties did not comply with these obligations. In Uthukela Dis-
trict Municipality v President of the RSA 2002 11 BCLR 1220 (CC), 2003 1 SA 678 (CC) the court
refused for the same reason to confirm the order of a High Court that the Division of Reve-
nue Act 1 of 2001 was invalid because it did not provide for an equitable share of the national
revenue for category C municipalities (Uthukela District Municipality v President of the RSA 2002
5 BCLR 479 (N)). The court held that the issue should rather be solved at a political level
(para 23). However, in Independent Electoral Commission v Langeberg Municipality 2001 9 BCLR
883 (CC), 2001 3 SA 925 (CC) para 31 it was decided that the requirement to avoid legal ac-
tion did not apply to a dispute against the Electoral Commission, and by implication any
other so-called chapter 9 institution, because the Commission did not form part of any
sphere of government.
190 After all, this norm is a constitutional principle (principle XXII) with which the present
Constitution as well as future actions of the national government must comply. See Premier,
Western Cape v President of the RSA 1999 4 BCLR 382 (CC), 1999 3 SA 657 (CC) paras 57–58.
191 The Constitutional Court was, however, unable to find that, in comparison with the former
Senate, the Council would be able to exercise more influence on behalf of the provinces – In
re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744
(CC) para 333. See on the participation of the German states in the federal legislative process
Oschatz GB “Position and responsibilities of the German Länder” Konrad Adenauer Stiftung
Occasional Papers (January 1994) 3–7.
192 See ch 8 para 2.3.5.
193 S 113.
194
the conferral of mandates on their representatives in the Council. Representatives
of organised local government are also entitled to sit in the National Council of
195
Provinces. From the point of view of a strict separation between the spheres of
196
government, this type of representation could be questioned. However, the co-
operative model adopted in South Africa does not entail such a strict separation; on
the contrary, it requires a much closer relationship. Representation of the provinces
and local government in the National Council of Provinces contributes without
doubt to greater understanding and co-operation among the spheres of government.
There is a continuing debate on the question as to the extent to which the Council
succeeds in representing provincial interests effectively, and proposals to strengthen
197
the position and role of the Council are often made. The procedures of parliament
198
have also been adapted to make the Council more effective.
(c) Governments in the various spheres of government are constitutionally obliged to assist one
another.
In the determination of each province’s and municipality’s share of the national
income, the relevant act of parliament must ensure that they are able to provide
199
basic services and perform the functions allocated to them. The national govern-
ment must also assist the provinces through legislative and other measures to
develop the administrative capacity that is required for the effective exercise of their
200
powers and performance of their functions. This corrects a deficiency in the
Interim Constitution. Numerous functions have been transferred by the national
government to the nine provinces without them having the administrative infrastruc-
ture required to perform those functions effectively. Now the national government is
201
obliged to assist the provinces in this regard. The national and provincial govern-
ments have a similar obligation towards local government.202
________________________
194 S 65(2). This creates significant practical problems as the programmes of parliament and the
provincial legislatures need to be synchronised meticulously, and provincial legislatures re-
ceive very little time to consider the bills (Murray C and Nijzink L Building Representative De-
mocracy: South Africa’s Legislatures and the Constitution (2002) 50–55).
195 S 67. See ch 12. See the Organised Local Government Act 52 of 1997.
196 It may also be questioned whether this aspect is in accordance with constitutional principle
XVI in terms of which government must be structured at national, provincial and local levels.
197 See on the potential role of the Council, Malherbe EFJ “The South African national council
of provinces: Trojan horse or white elephant?” 1998 TSAR 77, and see the proposals by De
Villiers B “National-provincial cooperation: the potential role of provincial interest offices:
the German experience” Konrad Adenauer Stiftung Occasional Papers (January 1999). See al-
so Murray C and Simeon R “From paper to practice: the National Council of Provinces after
its first year” 1999 SA Public Law 96; Murray C and Nijzink L Building Representative Democracy:
South Africa’s Legislatures and the Constitution (2002) 41; Malherbe R and Brand D “South Africa:
Sub-national Constitutional Law” International Encyclopaedia of Laws: Constitutional Law (2001)
61–62; Department of Provincial and Local Development The Intergovernmental Relations Audit:
Towards a Culture of Co-operative Government (1999) 113 ff; Malherbe R “South Africa: the Na-
tional Council of Provinces” in Van der Schyff G (ed) Constitutionalism in the Netherlands and
South Africa: A Comparative Study (2008) 103–119.
198 See the Rules of the National Council of Provinces (November 2005).
199 Ss 214(2)(d) and 227(1)(a). See the discussion in para 2.3.2.2 (c).
200 S 125(3). See para 2.3.2.2 (b).
201 Cf the dictum in this regard by the Constitutional Court in In re: Certification of the Constitution
of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 267: “In a situation such
as that which exists in South Africa, where newly established provinces may not yet have the
administrative infrastructure to enable them to carry out the functions they have to perform
in terms of the New Text, the provision serves a necessary governmental purpose . . .”
202 S 154. See ch 12.
The phenomenon of unfunded mandates, in terms of which powers, functions, res-
ponsibilities or duties are assigned to a government in another sphere of government
without the accompanying financial and other resources to ensure the effective execu-
tion of the powers or performance of the duties, undermines the obligation relating to
mutual assistance, is inconsistent with several constitutional provisions, and is there-
203
fore unconstitutional.
(d) Co-operation among the spheres of government is promoted by the authorisation of govern-
ments to delegate powers to governments in other spheres.
There is a general authorisation to delegate executive functions and to perform
agency services for other governments.204 The authorisation is not without limits and
must be exercised within the parameters of the Constitution. In addition, parliament
may delegate any legislative power, except the amendment of the Constitution, to a
government in another sphere.205 In turn, a provincial legislature may assign any
206
legislative power to a municipality. A member of the cabinet may also assign to a
member of a provincial executive council or a municipality a power or function that
207
must be exercised or performed in terms of an Act of Parliament. A member of an
208
executive council may assign any power to a municipality.
(e) The national government is expressly authorised under certain circumstances to intervene
at legislative as well as executive level in provincial matters.209
Parliament may adopt legislation on a matter over which the provinces have exclusive
powers, if it is necessary210 to maintain national security, economic unity or essential
national standards, or to determine minimum standards for the rendering of
services, or to prevent unreasonable action taken by a province which is prejudicial
211
to the interests of another province or the country. Parliament must adopt such
legislation in accordance with the procedures set out in section 76, which enables
the National Council of Provinces to enforce a two-thirds majority in the National
Assembly. In the Liquor Bill case it was decided that the national government could
________________________
203 Malherbe R “The unconstitutionality of unfunded mandates imposed by one sphere of

government on another” 2002 TSAR 541 544-546, who points out that unfunded mandates
are specifically inconsistent with the provisions of the Constitution that provide for mutual
assistance (ss 125(3) and 154) and with the principles of co-operative government (s 41(1)).
204 S 238. See ch 9 para 7.4.
205 S 44(1)(a)(iii). See also s 104(1)(b)(iii) – a provincial legislature has the power to pass
legislation on a matter not assigned in terms of Schedule 4 and 5 “expressly assigned to the
province by national legislation”. In Premier: Limpopo Province v Speaker of the Limpopo Provincial
Government 2011 11 BCLR 1181 (CC), 2011 6 SA 396 (CC) par 41 it was held that the assign-
ment in national legislation must be in clear terms and that it does not cover any implied as-
signments; the national Public Finance Management Act 1 of 1999 contained no explicit
assignment of the power to the financial management of provincial legislatures and provin-
cial acts to regulate such procedure were unconstitutional. See also Premier, Limpopo Province v
Speaker of the Limpopo Legislature 2012 6 BCLR 583 (CC).
206 S 104(1)(c). Although it is not mentioned as in s 44(1)(a)(iii), the legislature will not be able
to delegate the power to amend the provincial constitution.
207 S 99. This takes place by agreement and in accordance with the law in question and must be
promulgated by the President by proclamation. Also see s 125(2)(c).
208 S 126. The requirement that it must take place by agreement and in accordance with the law
and that it must be promulgated by the premier also applies here.
209 See with regard to local government ch 12.
210 According to Venter F Constitutional Comparison: Japan, Germany, Canada and South Africa as
Constitutional States (2000) 249 the question is whether intervention is objectively necessary.
Currie I and De Waal J The New Constitutional and Administrative Law I: Constitutional Law
(2001) 166.
211 S 44(2).
not prove that it was necessary to include in the Liquor Bill certain provisions
relating to an exclusive provincial matter, and those provisions were accordingly
212
declared invalid.
In the Liquor Bill case the court used a narrow interpretation of the exclusive func-
tional area “liquor licences” in order to decide that only the retail sales of liquor with-
213
in a province was an exclusive provincial matter. The judgment can be criticised
because the narrow interpretation of “liquor licences” widened the door for national
intervention in exclusive provincial matters, and because the court did not expressly
apply its own requirements for such intervention which it set out in the First Certifica-
214
tion Judgment. There the court held that the powers exercised subject to the princi-
ples of co-operative government (specifically section 41(1)(e), (f) and (g)) and also
215
only in exceptional circumstances. It is also significant that the narrow interpreta-
tion of matters of provincial competence as set out in the schedules was expressly re-
216
pudiated in the DVB Behuising case.
When a province does not fulfil an executive obligation, the national government may
217
intervene by taking any appropriate steps to ensure that the obligation is fulfilled.
This may include a directive to the province in which the steps that are required to
fulfil the obligation are mentioned. The national government may also itself assume
the responsibility for the obligation to the extent that it is necessary to maintain
economic unity, national security or standards, or to prevent the province from
taking unreasonable steps that are prejudicial to the interests of another province or
the country. If the national government itself assumes the responsibility, a notice to
that effect must be tabled within 14 days in the National Council of Provinces. The
intervention ends if the Council disapproves of it within 180 days, and the Council
218
must review the intervention regularly.
With regard to finance, there is strict treasury control over the provinces. The Con-
stitution provides that there must be transparency and control over expenditure in
every sphere by introducing recognised accounting practices, uniform expenditure
219
classifications and uniform treasury norms and standards. The treasury may, with
the concurrence of the minister of finance, stop the transfer of funds to any
________________________
212 2000 1 BCLR 1 (CC), 2000 1 SA 732 (CC). See the discussion by Malherbe EFJ “Die Drank-
wetsontwerp: vooraf kontrole en grondwetlike gesagsverdeling verder omlyn” 2000 THRHR
321; Malherbe R “The role of the Constitutional Court in the development of provincial au-
tonomy” 2001 SA Public Law 276–278.
213 Paras 58, 59 and 76.
214 Malherbe R “The role of the Constitutional Court in the development of provincial auton-
omy” 2001 SA Public Law 276–278.
(CC) paras 254–257 and 262–266.
216 Ex Parte Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v North West Provincial
Government 2000 4 BCLR 347 (CC), 2001 1 SA 500 (CC) para 17: “I respectfully disagree …
that the functional areas of provincial legislative competence set out in the schedules should
be ‘given a strict interpretation’. In the interpretation of those schedules there is no pre-
sumption in favour of either the national legislature or the provincial legislatures. The func-
tional areas must be purposively interpreted in a manner which will enable the national
Parliament and the provincial legislatures to exercise their respective legislative powers fully
and effectively.” Apparently, this approach has been overturned again by the strict interpreta-
tion of the concurrent functional area of “welfare services” to exclude social assistance, which
deprived the provinces of their authority over it, in Mashavha v President of the RSA 2004 12
BCLR 1243 (CC), 2005 2 SA 476 (CC).
217 S 100(1).
218 S 100(2) as amended by Act 3 of 2003.
219 S 216(1).
220
government on account of serious or persistent material breach of these directives.
The transfer of funds may not be stopped for longer than 120 days and will lapse
retrospectively unless parliament approves it within 30 days. Parliament may, how-
ever, renew the decision to stop the transfer of funds for a maximum of 120 days at a
time. Before parliament may decide, the auditor-general must report and the pro-
vince must be given the opportunity to state its case before a committee of parliament.
The powers of the national government to intervene in provincial affairs appear to
be far-reaching, but are strictly defined and according to the Constitutional Court
obviously intended to be exercised in exceptional circumstances only. The Court
221
also held that the power is subject to the principle of co-operative government.
2.5 Status of the provinces
2.5.1 The formal constitutional position 227
2.5.2 The situation in practice 229
2.5.1 The formal constitutional position

Within the framework of co-operative government, the provinces enjoy constitu-
tional status and protection.
The status of the provinces in terms of the Constitution can be evaluated only within
the framework of the principle of co-operative government. The provinces enjoy
considerable status in terms of the Constitution, and they form an integral part of
222 223
the exercise of government authority in the Republic.
The relevant provisions of the Constitution can be summarised as follows. The
existence and powers of the provinces are entrenched in the Constitution. There is a
constitutional distribution of powers monitored by the Constitutional Court. The
provinces have exclusive powers over a limited number of matters. Under certain
circumstances, provincial laws on concurrent matters are subject to laws of parlia-
ment, but parliament does not have unlimited authority over those matters. A pro-
vincial law will prevail if a conflicting act of parliament on the same issue does not
comply with the prescribed criteria. Disputes in this regard are resolved by the
Constitutional Court, which may involve that an act of parliament will be inoperative
if it does not conform to the requirements of section 146. The provinces are
________________________
220 S 216(2).
221 See In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA
744 (CC) paras 254–257 and 262–266. See also Malherbe R “The role of the Constitutional
Court in the development of provincial autonomy” 2001 SA Public Law 275–276.
222 See in general on the position of the provinces Malherbe R “The role of the Constitutional
Court in the development of provincial autonomy” 2001 SA Public Law 255 ff; Steytler N
“Concurrency and co-operative government: The law and practice in South Africa” 2001 SA
Public Law 241; Pottie D “Building provincial government in South Africa since 1994” Konrad
Adenauer Stiftung Seminar Report Provincial Government in South Africa (2001) 37; Singh N
“The IFP perspective on provincial government” Konrad Adenauer Stiftung Seminar Report
Provincial Government in South Africa (2001) 89.
223 The fact that the Constitution refers to spheres of government instead of levels of government
indicates an intention to move away from a hierarchical relationship among the spheres of
government to one of greater equality. Of course, the mere use of the concept “sphere of
government” is in itself insufficient, and one needs to analyse all relevant provisions of the
Constitution in order to determine the actual status of the provinces. See eg, the undue
weight attached to the term “sphere” by Meyer J Local Government Law 1997 (1998) 6. Cf the
more balanced comments by Pimstone G “The constitutional basis of local government in
South Africa” Konrad Adenauer Stiftung Occasional Papers (March 1998) 4–5.
represented in the National Council of Provinces and, through their representatives,
224
they take part in the adoption of all laws. Furthermore, the provinces have direct
control over the way in which their representatives vote in the Council.225 Especially
in respect of laws affecting the provinces, the Council can exercise considerable
influence and can force the National Assembly to adopt such legislation by a two-
thirds majority. Constitutional amendments must be referred to the provincial
legislatures for comment and constitutional amendments affecting the provinces
must be approved by six out of the nine provinces in the Council. A constitutional
amendment that affects the boundaries or powers of a particular province must also
226
be adopted by the relevant provincial legislature. The national government must
act in accordance with the principles of co-operative government and, among other
things, may not encroach on the geographical, functional or institutional integrity of
the provinces. In particular respects, the national government must assist the prov-
inces to act effectively. It is evident that the provinces enjoy material constitutional
protection and that the national government has no unlimited discretion to legislate
on provincial matters or to encroach arbitrarily on the constitutional position and
status of the provinces.
On the other hand, the provinces may also not act arbitrarily and they are also
subject to the principles of co-operative government. It has been pointed out that
the national government does have wide and far-reaching powers to intervene in
provincial affairs and even to cut off provincial funds.
In comparison with the Interim Constitution, the authority of the provinces has been
diminished slightly. Over acts of parliament with regard to provincial finances it has
been diminished because the National Council of Provinces, in contrast to the former
Senate, does not have to adopt it in a separate sitting and thus, in effect, exercise a
227
veto over it. The approval of the relevant provincial legislature when an ordinary bill
228
before parliament affects a particular province has also been deleted. In addition,
their powers over certain aspects were limited. They lost concurrent legislative power
over certain matters, as well as the power to appoint provincial public protectors and
229
provincial service commissions. Unlike the Interim Constitution, the Constitution
does not make provision for a Commission on Provincial Government which can give
230
advice on the further development of the provincial system.
To furnish a conclusive answer to the question of whether South Africa is now a
federation, simply from the provisions of the Constitution, would probably not be
feasible. It would negate the complexity of modern forms of state and their dynamic
nature and, in any case, the answer would change nothing of the constitutional
position explained above. The answer may also differ to the extent that one
________________________
224 See eg, Watts R “Provincial representation in the Senate” in De Villiers B (ed) Birth of a
Constitution (1994) 125 on the significance of a second chamber in this regard.
225 S 65. See ch 8 para 2.5.6.3.
226 S 74(3) and (4). See Matatiele Municipality v President of the RSA 2007 1 BCLR 47 (CC), 2007 6
SA 477 (CC).
227 Ss 155–157 of the Interim Constitution. The Constitutional Court’s argument in In re:
Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC)
paras 411–422 regarding why this is no diminution of their powers, is unconvincing.
228 S 61 of the Interim Constitution.
229 See ss 114, 213 and 217 of the Interim Constitution. See In re: Certification of the Constitution of
the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC).
230 See ss 163-173 of the Interim Constitution. See also Rautenbach IM and Malherbe EFJ
Constitutional Law (1994) 216–217. This in itself does not necessarily affect the provinces det-
rimentally, but the abolition of the Commission after only 2 years, with a majority of the prov-
inces still struggling to get on their feet, can be questioned.
concentrates on the formal constitutional distribution of powers (which, from the
231
point of view of constitutional law, is the essential feature of a federation), or on
the extent of such powers (in other words, the extent of autonomy enjoyed by the
provinces), or even on the relationship of national dominance that has developed in
practice between the spheres of government.232
The difficulties to answering theoretical questions like these satisfactorily are aptly il-
lustrated by the description of the system created in terms of the Interim Constitution
in a single contribution as a “federal political system”, “typical of regionalised unitary
233
systems”, and a “hybrid system”. In a recent contribution, South Africa was referred
to as “quasi-federal”, “federal”, “a highly centralised federal system”, “a relatively cen-
234
tralised federal system”, and “a multi-level system of government”.
2.5.2 The situation in practice

Despite the provisions of the Constitution, a situation of almost complete national
dominance over the provinces has developed in practice.235
________________________
231 See ch 6 para 3.2.5.

232 Most authors concur with this – Steytler N “Concurrency and co-operative government: The
law and practice in South Africa” 2001 SA Public Law 254 states cryptically: “In South Africa it
is a case of overgrowth by the national (federal) tree, smothering the young provincial sap-
lings.” See para 2.5.2.
233 Watts R “Is the new constitution federal or unitary?” in De Villiers B (ed) Evaluating Federal
Systems (1994) 75 85–86. Klaaren J “Federalism” in Chaskalson M et al (eds) Constitutional Law of
South Africa (1998) para 5.1 refers to “a federal system with unitary features”. See also Basson DA
South Africa’s Interim Constitution: Text and Notes (1994) 185 who states: “It would appear as if
the interim Constitution provides for such a system which is neither fully federal nor fully
unitary.”; Devenish G “The prospects for constitutional litigation in relation to the powers of
issues” 1996 THRHR 34 42: “[S]ome form of quasi-federalism will emerge from the jurispru-
dence of the Constitutional Court.” and “The interim Constitution does not create a conven-
tional federation, nor is it manifestly a unitary state, but its exact configuration is somewhere
between the two. Indeed it is a via media, the nature of which will only become clearer when
the system is put into operation and the uncertainty resolved by the Constitutional Court.”
234 Simeon R “Considerations on the design of federations: the South African constitution in
comparative context” 1998 SA Public Law 42. Venter F Constitutional Comparison: Japan, Ger-
many, Canada and South Africa as Constitutional States (2000) 244 contributes by calling South
Africa a “composite state”. However, see Tapscott C “Intergovernmental relations in South
Africa: a comparative analysis” in Department of Constitutional Development and Provincial
Affairs Intergovernmental Relations: An International Comparative Study (1998) 27 who states that
labels such as “federal” and “unitary” are less important than what actually happens in prac-
tice. Kalema R “Intergovernmental relations in South Africa: a comparative analysis” Konrad
Adenauer Stiftung Seminar Report Provincial Government in South Africa (2001) 27 concurs:
“The unitary-federal state distinction is less a dichotomy than a continuum. That is to say, the
use of the term ‘federation’ is of less consequence than the way in which power is devolved to
lower tiers of government and the competencies which they are assigned.”
235 The matter is discussed fully by Malherbe R “South Africa: the National Council of Provinces”
in Van der Schyff G (ed) Constitutionalism in the Netherlands and South Africa: A Comparative
Study (2008) 103–119 but see also Murray C and Simeon R “Multi-sphere government in
South Africa: an interim assessment” 2001 Publius 65 ff; De Villiers B “The future of the prov-
inces in South Africa: the debate continues” Konrad Adenauer Stiftung Policy Paper No 2 Oc-
tober 2007; Besdziek D “Provincial government in South Africa” in Venter A and Landsberg
C (eds) Government and Politics in the New South Africa (2006) 17 102–129, who refers inter alia
to “the evolving model of centralised federalism” (126). For a discussion of the theories of
Alexis de Tocqueville on centralisation and decentralisation and the application of these
theories in the South African Republic and the Kingdom of the Netherlands with regard to
The Constitution intended for the provinces to develop into viable and strong
regional governments within a controlled framework of co-operative government.
However, the emphasis on concurrency, the financial dependence of the provinces,
and the principle of co-operative government itself, created the opportunity for an
increasing centralisation of authority into the hands of the national government. On
the basis of an incorrect interpretation that legislative authority over concurrent
matters is vested in the national Parliament and its implementation in the provinces,
the national government monopolised virtually all legislative initiative. The principle
of co-operative government was used to develop a top-down decisionmaking process,
and structures for intergovernmental relations were used in a prescriptive way to
236
obtain provincial consent for national legislation beforehand, which left the role of
the National Council of Provinces in the legislative process rather superfluous.237 The
primary cause of this development is the national government’s view of the
provinces (as well as local governments) as developmental and service delivery
238
agents for the national government.
It seems difficult to turn around this tendency and to apply the provisions of the
Constitution correctly. As the same majority party is in power nationally and in the
provinces, there are no political brakes that can check this development. In the most
recent court decision, the Constitutional Court, which is supposed to act as guardian
over the correct interpretation of the Constitution, took a view that further under-
239
mines the authority of the provinces. Several provinces are moreover hampered by
limited financial, administrative and political capacity, which reinforces the inten-
240
tion of the national government to take over their powers. However, it has been
argued before now that the solution to the incapacity of the provinces is not the
centralisation of power, but the fulfilment by the national government of its consti-
241
tutional duty to assist in the development of their capacity.
The result is that the provincial governments have been manoeuvred into a sub-
ordinate agency position, and that they are neither the co-operative partners of the
national government nor the counterforce for the over-concentration of power that
the Constitution intended for the South African democracy. This undermines the
status, authority and legitimacy of the Constitution and endangers the establishment
and sustainability of democracy.
________________________
the national and regional governments, see Broekhuijse I and Venter R “Tocqueville en de
verhouding tussen de centrale en decentrale overheden: een Zuid-Afrikaans perspectief” in
Broekhuijse I and Sap JW De Amerikaanse Droom van Tocqueville (2016) 93-111, also see Broek-
huijse I and Venter R “Constitutional law from an emotional point of view: considering re-
gional and local interests in national decision-making” 2016 TSAR 236-254.
236 The Intergovernmental Relations Framework Act 13 of 2005 confirms this approach and
expressly envisages the implementation of national policy initiatives (Malherbe R “Does the
Intergovernmental Relations Framework Act 13 of 2005 confirm or suppress national domi-
nance?” 2006 TSAR 817–818).
237 See n 196 for a list of contributions on the role and future of the Council.
238 Malherbe R “Centralisation of power in education: have provinces become national agents?”
2006 TSAR 237–252.
239 Mashavha v President of the RSA 2004 12 BCLR 1243 (CC) 2005 2 SA 476 (CC). See the com-
ments by Malherbe R “Centralisation of power in education: have provinces become national
agents?” 2006 TSAR 237–252.
240 Even the powers of intervention of the national government under ss 44(2), 100 and 216(2),
which are supposed to be exercised for the purposes of assistance and temporary relief, are
increasingly being used as instruments for further centralisation.
241 A 125(3). After all, centralisation is no guarantee for greater efficiency.
3 Traditional authorities
Subject to the Constitution, traditional authorities and indigenous law are recognised
in the Constitution.
It was pointed out in the historical overview in chapter 2, that traditional authorities
existed in South Africa before the European occupation. These institutions have
never disappeared completely, and were not affected by the abolition of the self-
governing territories and independent states in terms of the Interim Constitution. As
a matter of fact, the Constitution gives recognition to traditional authorities and
indigenous law and provides that traditional authorities which observe indigenous
242
law may continue to function. The courts must apply indigenous law, subject to the
Constitution and any legislation dealing with indigenous law. This means that, in the
long run, indigenous law will be recognised only insofar as it is not inconsistent with
243
the Constitution. Subject to the provisions of the Constitution in this regard,
traditional authorities and indigenous law are matters over which parliament and
244
the provincial legislatures have concurrent legislative powers.
________________________
242 S 211(2). This gives effect to constitutional principle XIII – In re: Certification of the Constitution
of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 189. Indigenous law is,
however, subject to regulation by law (s 211(2)).
243 The extent to which indigenous law must be developed in line with the Constitution is the
subject of an extensive and still unfinished debate – Bekker JC, Rautenbach C en Goolam M
Introduction to Legal Pluralism in South Africa (2006). See also Sinclair J and Bronstein V “Fam-
ily law” in Chaskalson M et al (eds) Constitutional Law of South Africa (1998) para 34–1 ff; Currie
I “Indigenous law” in Chaskalson M et al (eds) Constitutional Law of South Africa (1998) para 36–
1 ff; Kerr AJ “The Bill of Rights in the new Constitution and customary law” 1997 SALJ 346;
Maithufi IP “The effect of the 1996 Constitution on the customary law of succession and mar-
riage in South Africa: some observations” 1998 De Jure 285; Bronstein V “Confronting custom
in the new South African state: an analysis of the Recognition of Customary Marriages Act 120
of 1998” 2000 SAJHR 558; Himonga C and Bosch C “The application of African customary law
under the Constitution of South Africa: problems solved or just beginning?” 2000 SALJ 306;
Pieterse M “It’s a ‘Black thing’: customary law in a society founded on non-racialism” 2001
SAJHR 364; Mbatha L “Reforming the customary law of succession” 2002 SAJHR 259; Maithufi
IP and Moloi GMB “The current legal status of customary marriages in South Africa” 2002
TSAR 599. See in general Bennett TW Human Rights and African Customary Law (1995). Simi-
lar problems are experienced in the case of Muslim law – see Moosa N “The interim and final
Constitutions and Muslim personal law: implications for South African Muslim women” 1998
Stell LR 196. See also Bronstein V “Reconceptualizing the customary law debate in South Af-
rica” 1998 SAJHR 388. The Recognition of Customary Marriages Act 120 of 1998 is an attempt
to adapt customary law at least in respect of marriages in line with the Constitution. See the
comments by Mamashela M “New families, new property, new laws: the practical effects of the
Recognition of Customary Marriages Act” 2004 SAJHR 616. See also reported cases like Ry-
land v Edros 1997 1 BCLR 77 (C), 1997 2 SA 690 (C); Bangindawo v Head of the Nyanda Regional
Authority; Hlantlalala v Head of the Western Tembuland Regional Authority 1998 3 BCLR 314 (Tk),
1998 1 SA 262 (Tk); Mthembu v Letsela 2000 3 SA 867 (SCA), and specifically the leading deci-
sion of the Constitutional Court in Bhe v Magistrate, Kayelitsha; Sibi v Sithole; SA Human Rights
Commission v President of the RSA 2005 1 BCLR 1 (CC), 2005 1 SA 580 (CC), in which male
primogeniture, and the exclusion of women and extra-marital children was declared invalid –
see the comments of Rautenbach C, Du Plessis W and Pienaar G “Is primogeniture extinct
like the dodo, or is there any prospect of it rising from the ashes? Comments on the evolu-
tion of customary succession laws in South Africa” 2006 SAJHR 99; Knoetze E and Olivier M
“To develop or not to develop the customary law: that is the question in Bhe” 2005 Obiter 126–
132.
244 Schedule 4 of the Constitution. The authority of the provinces in this regard was recognised
in In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995: In re: Payment of
Salaries, Allowances and other Privileges to the Ingonyama Bill of 1995 1996 7 BCLR 903 (CC), 1996
4 SA 653 (CC).
In terms of the Interim Constitution, attempts were made in different ways to link
traditional authorities to the government institutions that were created in terms of
245
the Constitution. Provision was made for the participation of traditional leaders in
246
local government, for the establishment of houses for traditional leaders in every
247
province, and for a national council of traditional leaders. The Constitution does
not contain any particulars in this regard. It simply states that national legislation
may provide for a role for traditional leaders as an institution in the local sphere and
248
for the establishment of houses and a council of traditional leaders. The Local
Government: Municipal Structures Act provides that traditional leaders may partici-
249
pate in the proceedings of a municipal council. The number of traditional leaders
that participate in this way may, however, not exceed 20% of the total number of
250
councillors. The house of traditional leaders in the province in question must make a
recommendation regarding the leaders who will participate in the proceedings of
251
the relevant municipality. The National House of Traditional Leaders Act provides
that the national house of traditional leaders consists of three members from each
252
provincial house of traditional leaders that is in operation. The national house
continues for five years and aims to promote the role of traditional leadership within a
democratic constitutional dispensation, enhance unity and understanding among
traditional communities, and promote co-operation between the national and provin-
cial houses. For this purpose, the national house may advise the national government
on matters concerning traditional leadership and traditional leaders and indigenous
253
law. In the six provinces in which there are traditional leaders, provincial houses of
254
traditional leaders have been established by law. They, too, have only advisory pow-
ers. An important function of the national and provincial houses of traditional leaders
is to comment on legislation affecting traditional communities. The Traditional Lead-
255
ership and Governance Framework Act consolidates aspects of these arrangements.
The purpose of the Act is to regulate traditional leadership within the system of
256
democratic governance. The Act accordingly provides for the recognition of tradi-
tional communities and leaders, the establishment of traditional councils and houses
of traditional leaders, and a Commission on Traditional Leadership.
________________________
245 See on the background to these provisions Mokgoro Y “Traditional authority and democracy
in the Interim South African Constitution” Konrad Adenauer Stiftung Occasional Papers (Sep-
tember 1994) 3–10.
246 In African National Congress v Minister of Local Government and Housing, KwaZulu-Natal 1998 4
BCLR 399 (CC), 1998 2 SA 1 (CC) it was held that such membership applied also to the re-
gional councils in that province, despite the fact that they were not fully elected bodies. See also
Premier of KwaZulu-Natal v President of the RSA 1995 12 BCLR 1561 (CC), 1996 1 SA 769 (CC).
247 Ss 182–184 of the Interim Constitution. See Rautenbach IM and Malherbe EFJ Constitutional
Law (1994) 219–220.
248 S 212.
249 S 81 of Act 117 of 1998.
250 Initially, there was no limit (African National Congress v Minister of Local Government and
Housing, KwaZulu-Natal 1998 4 BCLR 399 (CC), 1998 2 SA 1 (CC)), but in the act a limit of
10% was imposed which was later increased to 20% (Rugege S “The institution of traditional
leadership and its relation with elected local government” Konrad Adenauer Stiftung Semi-
nar Report Constitution and Law IV: Colloquium on Local Government Law (2002) 13 17).
251 Schedule 6 of Act 117 of 1998.
252 National House of Traditional Leaders Act 10 of 1997, as amended by Act 85 of 1998. (Act 10
of 1997 repealed the first Act in this regard, Act 31 of 1994.) The members are nominated by
the provincial houses (s 4).
253 S 7 of Act 10 of 1997.
254 The provinces are Eastern Cape, Free State, KwaZulu-Natal, Mpumalanga, Limpopo, and
North West.
255 Act 41 of 2003. See eg, s 18(1).
256 Preamble to Act 41 of 2003.
Chapter 12
Local government
1 General 233
2 Local government in South Africa 235
1 General
Local government is the third level of government at which government authority is
exercised in a state.
Local governments are the smallest government institutions in any state and are
regarded as cornerstones of modern democratic systems.1 Because it involves a dis-
tinct way of distributing government authority, local government can be an effective
counterweight to the concentration of power at other levels of government. Fur-
thermore, it brings decision-making closer to the inhabitants of a state, and affords
them better opportunities than authorities at other levels to become involved in
government processes with regard to matters affecting their daily lives.
In the South African Constitution, the following specific objectives of local govern-
2
ment are set out:
• to provide democratic and accountable local government;
• to ensure the provision of services to communities in a sustainable manner;
• to promote social and economic development;
• to promote a safe and healthy environment; and
• to encourage the involvement of communities in local government.
Municipalities must strive, within their capacity, to achieve these objectives, and they
3
must give priority to the basic needs and development of the community.
It is generally accepted as a sound principle that the local government level
should be an autonomous level of government.4 In principle, as many powers and
functions as possible should be delegated to the local government level. However,
________________________
1 Zybrands W A Perspective on Local Government in the New South Africa (1995) 1 defines local govern-
ment as follows: “Local government can be described as that level of government closest to its
constituents and involved in the rendering of a wide range of services that materially affect the
lives of the inhabitants residing within its area of jurisdiction.” See also Zybrands W “Local gov-
ernment” in Venter A and Landsberg C (eds) Government and Politics in the New South Africa
(2005) 133; De Beer J and Lourens L Plaaslike Regering: Die Pad na Demokrasie (1995) 2–3; Carpen-
ter G “Local government – the lifeblood of democracy” in Verloren van Themaat Centre South
Africa in Transition: Local Government: The Demands, the Law, the Realities (1996) 23.
2 S 152(1).
3 Ss 152(2) and 153. They must also participate in national and provincial development
programmes (s 153(b)). Especially on their responsibility in respect of development see the
different contributions in Konrad Adenauer Stiftung Seminar Report Constitution and Law IV:
Colloquium on Local Government Law (2002).
4 Thomashausen A “Local and regional autonomy: the comparative law approach to residential
and spatial conflicts” 1985 CILSA 314.
233
the ideal of local government as a cornerstone of democracy can become an empty
slogan if local governments do not have the expertise, and financial and administra-
tive infrastructure, to properly perform the functions and exercise the powers allo-
5
cated to them.
The local government level may also entail certain disadvantages which present
particular challenges in the realisation of the objectives of local government. Allen
6
mentions the following, amongst others: (a) local governments compete, often
unsuccessfully, with government bodies at the other levels for scarce resources; (b)
ill-considered decentralisation may aggravate social inequalities; (c) small govern-
ment bodies may be manipulated more easily by strong private interest groups than
governments at other levels; (d) decentralisation to the local level may be used by
institutions at other levels to shirk their responsibilities.
Sometimes the position of local governments is entrenched in the constitutions of
states.
7
Examples in this regard are the constitutions of Brazil, Germany, Austria and Portugal.
Section 28(2) of the German Constitution guarantees that local authorities may
8
regulate on their own responsibility all local affairs within the limits of the law.
Local governments have the right to approach the Federal Constitutional Court
directly when their right to self-government is affected by legislation. Section 28(1)
provides that local governments must be elected in direct, free, equal and secret
elections.
The sphere of local government is entrenched in chapter 3 of the South African
Constitution, where it is stated: “In the Republic, government is constituted as
national, provincial and local spheres of government, which are distinctive, interde-
9
pendent and interrelated.” This gives effect to the constitutional principles with
10
which the Constitution had to comply. Certain other aspects concerning the local
sphere are entrenched in Chapter 7 of the Constitution.11 The right of municipali-
ties to govern their communities on their own initiative, within the limits of the law,
is recognised, and national and provincial legislation may not compromise or im-
pede the ability or right of municipalities to exercise their powers or perform their
12
functions. The other aspects dealt with in Chapter 7 are discussed below.
________________________
5 See the extensive comments in this regard by Zybrands W A Perspective on Local Government in the
New South Africa (1995)143 ff.
6 Allen H “Enhancing decentralization for development” unpublished working document for
the 27th Congress of the International Union of Local Authorities (1985) 12–14.
7 Allen H “Enhancing decentralization for development” unpublished working document
(1985) 22–25; Thomashausen A “Local and regional autonomy: the comparative law approach
to residential and spatial conflicts” 1985 CILSA 314. For a comparative discussion of local gov-
ernment in the United Kingdom, the United States of America, Germany, Nigeria, Kenya and
Uganda, see Mathenjwa M Supervision of Local Government (2017) 51–60.
8 The qualification “within the limits of the law” means that this right to self-government may be
restricted by legislative measures at other levels. Such measures may, however, not amount to
the abolition of all local governments – Jarass HD and Pieroth B Grundgesetz für die Bundesrepub-
lik Deutschland (2002) 638–639. See below with regard to South Africa.
9 S 40(1).
10 Constitutional principle XVI, which provided that government had to be structured at na-
tional, provincial and local levels, required the existence of a local level.
11 Ch 7 originates from constitutional principle XXIV which provided that a framework for the
structures, powers and functions of local government, also in respect of finance, had to be pro-
vided for in the Constitution.
12 S 151(3) and (4).
Chapter 12 Local government 235
Big differences exist world-wide between local government institutions in different
states with regard to their constitutional significance, composition, powers and
functions.
As at regional level, these differences are the result of the peculiar demographic,
economic, social and political circumstances in each country.
The constitutional status of local government may also be influenced by various his-
torical factors. In many former centralised monarchies (for example, France, Russia,
Turkey and Britain), or colonies of such states, local government (plaaslike “bestuur”) is
often regarded as a mere administrative level at which certain “services” are rendered
to local communities. In states that historically developed from co-operation among
small autonomous communities (for example, the Netherlands, Austria and Switzer-
land), local governments are regarded as an autonomous level of government 13
at which
the inhabitants organise the rendering of essential services themselves. There are, as
a matter of fact, traditional views in Germany according to which14 local governments
are institutions of civil society not forming part of the government.
In respect of the small autonomous communities15
that existed in many states in Africa
and Asia before colonisation, Allen declares: “Left to themselves it is quite likely that
they would have emulated the second group mentioned above: but in practically all
cases colonial domination, or the development of a central monarchy sufficiently pow-
erful to resist such domination (as in Thailand and Ethiopia), brought them into the
first group . . . Nor has independence made any very noticeable difference in most
countries. An enduring legacy of past colonial status . . . is an almost instinctive pre-
disposition to seek models exclusively from the former metropolitan power.”
2 Local government in South Africa16

2.1 Relationship with other spheres of government 236
2.2 Composition, powers and functioning of local governments 239
2.3 Categories and types of local government 247
In the remainder of this chapter an overview of the South African position is given.17
The Constitution creates a framework for a new dispensation at local level, and
several laws have been adopted to give effect to that framework. In the overview, the
previous system is explained as far as is necessary, together with an exposition of the
relevant provisions of the Constitution, the laws made pursuant to the Constitution,
and the law which regulated the transitional process, namely the Local Government
18
Transition Act.
________________________

(1985) 16.
14 Borchman M and Vesper E Reformproblemen im Kommunalverfassungsrecht (1977) 16 and 19; Bur-
meister P Verfassungstheoretische Neukonzeption der kommunalen Selbstverwaltung (1970) 1.
(1985) 17.
16 See Van Rooyen A History of Local Government in South Africa (1991); De Beer J and Lourens L
Plaaslike Regering: Die Pad na Demokrasie (1995) for a full discussion on the development of local
government in South Africa. See also the brief overview by Ismail N and Mphaisha CJJ “The fi-
nal Constitution of South Africa: local government provisions and their implications” Konrad
Adenauer Stiftung Occasional Papers (January 1997).
17 See the comprehensive work of Bekink B Principles of South African Local Government Law
(2006). For other expositions see Zybrands W A Perspective on Local Government in the New South
Africa (1995) 133; De Visser J “Powers of local government” 2002 SA Public Law 223; De Visser J
“The institutional framework for developmental local government: making good on the prom-
ise of development?” Konrad Adenauer Stiftung Seminar Report Constitution and Law IV: Collo-
quium on Local Government Law (2002) 35; Steytler N, De Visser J and Mettler J Making Law: A
Guide to Municipal Councils (2000).
18 Act 209 of 1993. See para 2.4.
2.1 Relationship with other spheres of government

The relationship between local government and governments in other spheres is also
determined by the principle of co-operative government. However, governments in
the other spheres have wide powers with regard to local government matters.
The relationship between local government and governments in the other spheres
determines the status of local government. In terms of section 85 of the South Africa
Act, and section 84 of the 1961 Constitution, local government was one of the sub-
jects under the jurisdiction of the provinces and, accordingly, local government was
subject to laws of both the provinces and parliament. In this way, parliament and the
19
provinces exercised extensive control over local government. However, constitu-
tionally the position has changed:
• It has been mentioned that local government now enjoys constitutional recogni-
tion as a fully-fledged sphere of government.20 It means, at the least, that the oth-
er spheres of government may not abolish local government, or otherwise dis-
regard the provisions of the Constitution on local government. However, the
exact status of local government can be determined properly only by taking into
account all relevant provisions of the Constitution, and does not in the first place
depend on the fact that local government, like national and provincial govern-
21
ment, is described as a sphere of government.
• The principle of co-operative government also applies to the relationship be-
tween local government and the other spheres of government.22 Therefore, mu-
tual respect for the constitutional status, institutions, powers and functions of
governments in the various spheres and the prohibition not to encroach on one
23
another’s geographical, functional and institutional integrity also apply here. The
national and provincial governments, by legislative and other measures, must also
support and strengthen the capacity of municipalities to manage their own af-
24
fairs, exercise their powers and perform their functions.
• Local government enjoys representation in the National Council of Provinces.
Section 67 of the Constitution provides that organised local government may des-
ignate not more than ten part-time representatives to represent different catego-
ries of municipalities in the Council. They participate in the proceedings of the
Council whenever necessary, but may not vote. The Organised Local Government
Act provides for the recognition of national and provincial organisations that
represent municipalities and for procedures in terms of which such organisations
25
may designate representatives in the Council.
• Local government is closely involved in some of the structures that have been
established to promote intergovernmental relations, and is represented in the
________________________
19 De Beer J and Lourens L Plaaslike Regering: Die Pad na Demokrasie (1995) 7. Also see Mathenjwa M
Supervision of Local Government (2017) 32–33.
20 As recognised in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1998 12 BCLR 1458 (CC), 1999 1 SA 374 (CC) paras 26 and 34–38; City of Cape Town v Robert-
son 2005 3 BCLR 199 (CC), 2005 2 SA 323 (CC) paras 50–60.
21 See the discussion in ch 11 para 2.5.
22 Ch 3 of the Constitution. See the discussion in ch 11 para 2.4. See the remarks by Pimstone G
“Local government” in Chaskalson M et al (eds) Constitutional Law of South Africa (1998) para
5A.25 ff; Bekink B Principles of South African Local Government Law (2006) 89 ff.
23 S 41(1)(e) and (g).
24 S 154(1). This duty is judicially enforceable – MEC for Local Government, Mpumalanga v IMATA
2002 1 SA 76 (SCA).
25 Act 52 of 1997, adopted pursuant to s 163 of the Constitution.
26
national sphere mainly by the South African Local Government Association.
27
Local government is also represented in the Financial and Fiscal Commission.
Much more still needs to be done, however, to develop intergovernmental rela-
tions structurally and otherwise, and to accommodate local government in such
structures within provinces.28 The Intergovernmental Relations Framework Act
indeed provides for the participation of local governments in provincial and local
intergovernmental structures and processes.29
Despite these changes, local government remains subject to the other spheres of
government and under their control.30 The Constitution expressly makes municipal
by-laws (legislation) subject to national and provincial legislation and provides that a
31
municipal by-law that conflicts with national or provincial legislation is invalid.
Furthermore, governments in the other spheres have wide, albeit not limitless,
powers with regard to local government affairs:
(a) The autonomy of local governments is limited by the provision that municipalities have the
right to govern their communities “subject to national and provincial legislation”.32 This means
that local autonomy may be limited by laws of parliament and the provinces. The
Constitution itself envisages such laws.
• The Constitution authorises or prescribes the adoption of specific laws. National
legislation must be adopted to define the types of municipalities that may be es-
tablished in the various categories of municipalities, establish criteria for the de-
marcation and establishment of municipalities and provide for the division of
33
their powers and functions. The particulars of the electoral system for local gov-
ernment, certain aspects in respect of membership of municipal councils,35 the
34
terms of municipal councils,36 the participation of members in proceedings37 and

38
the recognition of organised local government must also be regulated by national
legislation. National legislation may provide for the size of municipalities and for
39
their committee systems. Almost all these matters are regulated in the Local
________________________
26 The Association has been recognised in terms of the Organised Local Government Act 52 of
1997. See on the role of the Association Pimstone G “Local government” in Chaskalson M et al
(eds) Constitutional Law of South Africa (1998) para 5A.32.
27 See s 5(c) of the Financial and Fiscal Commission Act 99 of 1997, which gives effect to s 163(b)(iii)
of the Constitution.
28 See the ideas of De Villiers B “Local-provincial intergovernmental relations: a comparative
analysis” 1997 SA Public Law 469; Pimstone G “The constitutional basis of local government in
South Africa” Konrad Adenauer Stiftung Occasional Papers (March 1998) 8–10.
29 See Act 13 of 2005.
30 See in general the remarks by Zybrands W A Perspective on Local Government in the New South Africa
(1995) 202; De Visser J “Powers of local government” 2002 SA Public Law 225 ff; Pimstone G
“Local government” in Chaskalson M et al (eds) Constitutional Law of South Africa (1998) para
5A and 25–35. See also Pimstone G “The constitutional basis of local government in South Af-
rica” Konrad Adenauer Stiftung Occasional Papers (March 1998) 2–5.
31 S 156(3). If the municipal by-law conflicts with a national or provincial law that is inoperative
because it is itself in conflict with another national or provincial law, as the case may be (see
s 149), the municipal by-law is regarded as valid as long as that national or provincial law is in-
operative.
32 S 151(3).
33 S 155(2) and (3).
34 S 157(2) and (6). See below.
35 S 158(1)(a) and (b) and (2).
36 S 159.
37 Ss 160(3) and 161.
38 S 163.
39 S 160(6).
40
Government: Municipal Structures Act of 1998. Provincial legislation must de-
41
termine the types of municipalities to be established in every province, and may
provide for the establishment, monitoring, support and development of munici-
palities.42
• Parliament and the provinces are generally empowered to make laws on all local
government matters that are not dealt with in the Constitution.43 These powers of
parliament and the provinces are limited, however, because they may not be
exercised in conflict with the provisions of the Constitution. Such laws may not,
for example, compromise or impede the ability or right of municipalities to
44
exercise their powers or perform their functions. Parliament and the provinces
may, therefore, limit the autonomy of local governments through laws, as long as
45
such limitation does not affect the essence of local government. Any national or
provincial bill that affects local government must also be published in a way that
enables municipalities to make representations.46
(b) All traditional local functional areas are included in the lists of exclusive and concurrent
provincial functional areas which are contained in schedules 4 and 5 of the Constitution.47 On
the one hand, this means that the powers of local governments are entrenched in
the Constitution. On the other hand, the implication is that local governments do
not have exclusive powers and that they share their authority over the areas in ques-
tion with parliament and the provinces.48 Consequently, the provinces and, under cer-
tain circumstances, parliament may make laws over local government matters to the
extent that it is necessary for the performance of their duties to monitor local gov-
49
ernments and to develop their capacity. Whenever a local by-law on such a matter is
inconsistent with a provincial or national law, the by-law is simply invalid. However,
national and provincial laws on local matters may not be inconsistent with the provi-
sions of the Constitution on local government.50 While local government is, therefore,
still under the control of parliament and the provinces, the position has changed
because these authorities cannot exercise control according to their own discretion.
________________________
40 Act 117 of 1998. See para 2.2. A few provisions of the Act were invalidated in Executive Council of
the Western Cape v Minister for Provincial Affairs and Constitutional Development; Executive Council of
KwaZulu-Natal v President of the RSA 1999 12 BCLR 1360 (CC), 2000 1 SA 661 (CC).
41 S 155(5).
42 S 155(6).
43 S 164.
44 S 151(4).
45 See the remarks in n 8 in respect of the position in Germany.
46 Organised local government and other interested persons must also be able to react
(s 154(2)).
47 Although the Constitution does not provide, unlike previous Constitutions, that local govern-
ment is one of the functional areas over which the provinces have legislative authority. See eg,
schedule 6 of the Interim Constitution.
48 The Constitutional Court did, however, reject the argument that parliament has concurrent
powers with the other spheres of government in respect of all powers relating to local govern-
ment that are vested in those spheres – Executive Council of the Western Cape v Minister for Provin-
cial Affairs and Constitutional Development of the RSA; Executive Council of KwaZulu-Natal v President
of the RSA 1999 12 BCLR 1360 (CC), 2000 1 SA 661 (CC) para 28.
49 Parts A and B of schedules 4 and 5, read with s 155(6)(a) and (7). See (c) below.
50 Executive Council of the Western Cape v Minister for Provincial Affairs and Constitutional Development
of the RSA; Executive Council of KwaZulu-Natal v President of the RSA 1999 12 BCLR 1360 (CC),
2000 1 SA 661 (CC) paras 24–30. In City of Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal and Others 2010 6 SA 182 (CC), 2010 9 BCLR 859 (CC) invalidated chap-
ters V and VI of the Development Facilitation Act 67 of 1995 because it assigned powers which
the Constitution defined as local government powers to provincial institutions.
They must act specifically in accordance with the provisions of the Constitution on
51
local government, and within their respective spheres of competence.
(c) Provincial governments have legislative and executive authority to monitor the local
government matters which are mentioned in schedules 4 and 5 and to see to it that municipali-
52
ties administer them effectively. The provinces exercise this power subject to the quali-
fications that parliament may also adopt laws on those matters, that the autonomy of
municipalities may not be compromised or impeded, and that the national and
provincial governments must support and strengthen the capacity of municipalities
to govern their own affairs.53
(d) When a municipality does not fulfil an executive obligation, the relevant provincial govern-
ment may intervene through any appropriate steps to ensure that the obligation is fulfilled.54
This may include a directive to fulfil the obligation, or the provincial government
may itself assume responsibility for it to the extent that it is necessary to maintain or
establish essential national standards, maintain economic unity, or prevent the
municipality from taking unreasonable steps that are prejudicial to the interests of
another municipality or the province. In exceptional cases the Municipal Council
55
may be dissolved and an administrator be appointed. The intervention must end
unless it is approved by the national minister responsible for local government
56
within 28 days. A notice of the intervention must be tabled in the provincial legisla-
57
ture and the National Council of Provinces. The intervention must end if it is disap-
proved by the Council within 180 days and the Council must also review the inter-
vention regularly.
The national and provincial governments exercise their powers in respect of local
government in a way that restricts the autonomy of local governments and places a
serious constraint on the development of local government into a vigorous sphere of
government. Simply too much detail is being prescribed from above.58
2.2 Composition, powers and functioning of local governments

2.2.1 General 239
2.2.2 Establishment 240
2.2.3 Composition 241
2.2.4 Powers 242
2.2.5 Functioning 246
2.2.1 General
Despite considerable provincial differences in respect of both designations and par-
ticulars, autonomous local governments in South Africa have thus far displayed cer-
tain common features.
________________________
51 De Visser J “Powers of local government” 2002 SA Public Law 226.

52 See eg, on the appointment of a commission of enquiry into the affairs of a local government
Van der Merwe v Slabbert NO 1998 6 BCLR 697 (N), 1998 3 SA 613 (N).
53 S 155(6).
54 S 139(1). Cf the national government’s power to intervene in respect of the provinces – s 100.
55 S 139(1)(c), (3), (4) and (5). This may also happen if the municipality fails to approve a
budget or as a result of a financial crisis in the municipality.
56 S 139(2)(b)(i).
57 This must take place within 14 days from their first sittings after the intervention (s 139(2)(b)).
58 See Steytler N “The strangulation of local government” 2008 TSAR 518–535; also Steytler N
and Feesha Y “Defining local government powers and functions” 2007 SALJ 320–338.
The segregation of townships during the apartheid era resulted in segregated local
government. In terms of different laws and ordinances, separate autonomous local
59
governments had to be established for the different race groups. In the process,
hundreds of autonomous local governments were established through the years. For
various purposes, they were also divided into different categories.
One of the main purposes of the transformation of local government was to estab-
lish a restructured non-racial system. Although these general characteristics were
retained to a large extent, the provisions of the Constitution, the Local Government
Transition Act, the Local Government: Municipal Structures Act and other measures
have, therefore, profoundly affected the composition, powers and functioning of
local government.
The restructuring of local government has been effected in terms of the Local Gov-
60 61
ernment Transition Act and in accordance with a three-phase transitional process.
In the first phase, the pre-interim phase, cities and towns were governed by transitional
62
councils or co-ordinating committees agreed upon in negotiations. The second phase
commenced with the first non-racial elections for all local government areas, then
63
newly demarcated. The final phase commenced in 2000 with the establishment of the
various categories and types of local governments described in this chapter.
The Constitution contains significant directives, supplemented by national legis-
lation, on the establishment, structures, powers and functioning of local governments.
2.2.2 Establishment
64
Local governments (municipalities) must be established for the whole Republic.
The Constitution provides for different categories of municipalities and the Local
________________________
59 Eg, the Black Local Authority Act 102 of 1982, the Local Authority Ordinance 17 of 1939
(Transvaal), the Municipal Ordinance 20 of 1974 (Cape Province), the Local Authorities Or-
dinance 25 of 1974 (Natal) and the Local Authority Ordinance 8 of 1962 (OFS). See in gen-
eral De Beer J and Lourens L Plaaslike Regering: Die Pad na Demokrasie (1995) and Van Rooyen A
History of Local Government in South Africa (1991).
60 Act 209 of 1993. The act was identified in s 245 of the Interim Constitution as the vehicle for
this purpose.
61 See Cloete GS “Local government transformation in South Africa” in De Villiers B (ed) Birth of
a Constitution (1994) 294 on the negotiations which led to it. Negotiations gained special mo-
mentum with the founding of the Local Government Negotiating Forum (LGNF) in March
1993 – see De Beer J and Lourens L Plaaslike Regering: Die Pad na Demokrasie (1995) 120 ff. See al-
so Reddy PS “Local government restructuring in South Africa” in Reddy PS (ed) Readings in
Local Government Management and Development: A South African Perspective (1996) 58 ff; Gutto SB
and Van Rensburg AJ “Local government legislation and the Constitution during the transition
to democracy” in Gutto SB (ed) A Practical Guide to Human Rights in Local Government (1996)
89. The views of the government on the envisaged steps for the transformation of local gov-
ernment can be found in White Paper on Local Government (March 1998). The complexity of the
transitional process was acknowledged in several decisions, including In re: Certification of the
Amended Text of the Constitution of the RSA, 1996 1997 1 BCLR 1 (CC), 1997 2 SA 97 (CC) para
85; Executive Council, Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC),
1995 4 SA 877 (CC) para 178; African National Congress v Minister of Local Government and Hous-
ing, KwaZulu-Natal 1998 4 BCLR 399 (CC), 1998 2 SA 1 (CC) para 6; MEC for Development Plan-
ning and Local Government in the Provincial Government of Gauteng v Democratic Party 1998 7 BCLR
855 (CC), 1998 4 SA 1157 (CC).
62 S 7 of Act 208 of 1993. See Munisipale Raad van Bainsvlei v Premier van die Provinsie Oranje-
Vrystaat 1995 5 BCLR 543 (O), 1995 1 SA 772 (O); Town Council of Lichtenburg v Premier of the
North-West Province 1995 8 BCLR 959 (B).
63 Ss 8 and 9. See on the elections Executive Council, Western Cape Legislature v President of the RSA
1995 10 BCLR 1289 (CC), 1995 4 SA 877 (CC).
64 S 151(1). See also Mathenjwa M Supervision of Local Government (2017) 40–41.
Government: Municipal Structures Act defines the different types of municipalities
65
that may be established in each category. National legislation also determines the
criteria for the demarcation of municipal boundaries by an independent demar-
cation board.66 Each province determines the type of municipalities to be established
in the province and deals with their actual establishment.67
2.2.3 Composition
Every municipality has a directly elected council. Under the Interim Constitution,
this did not mean that every member had to be elected, allowing for membership of
68
traditional leaders. The Constitution leaves open the question of their membership
and the Local Government: Municipal Structures Act provides merely for the par-
69
ticipation of traditional leaders in the proceedings of a municipal council. The
council must be elected democratically for a term not exceeding five years.70 The
municipal electoral system is determined by the Local Government: Municipal
Structures Act and may entail a proportional system according to the list system, or a
proportional system combined with ward representation. 71 Proportionality is the
overriding principle applicable to the composition of a municipal council and must
72
be maintained throughout. The relevant municipality’s segment of the national
common voters’ roll must be used for the election, and only persons who are
registered on that segment of the national voters roll may participate in the local
________________________
65 Act 117 of 1998, adopted in terms of s 155(2) of the Constitution. The categories and types of
municipalities are discussed in para 2.3.
66 Local Government: Municipal Demarcation Act 27 of 1998, adopted in terms of s 155(3)(b) of
the Constitution –Bekink B Principles of South African Local Government Law (2006 ) 145 ff. S
174(2) of the interim Constitution provided that provision could be made for metropolitan,
urban and rural local governments with differentiated powers, functions and structures in accor-
dance with different demographic, economic, physical and environmental conditions. In Mata-
tiele Municipality v President of the RSA 2006 5 BCLR 622 (CC), 2006 5 SA 47 (CC) the
Constitutional Court held that the power of the municipal demarcation board to draw municipal
boundaries independently and without interference was subject to the constitutional authority of
parliament to amend provincial boundaries in a way that may affect municipal boundaries (paras
49–51).
67 S 155(5) and (6). See s 12 of Act 117 of 1998.
68 African National Congress v Minister of Local Government and Housing, KwaZulu-Natal 1998 4 BCLR
399 (CC), 1998 2 SA 1 (CC). See also ch 11 para 3.
69 S 81 provides that the number of traditional leaders who may so participate may not exceed
10% of the total number of members. Initially, there was no limit, but in the act a limit of 10%
was imposed which was later increased to 20% (Rugege S “The institution of traditional leader-
ship and its relation with elected local government” Konrad Adenauer Stiftung Seminar Re-
port Constitution and Law IV: Colloquium on Local Government Law (2002) 13 17).
70 S 159. The Municipal Electoral Act 27 of 2000 regulates municipal elections. See Independent
Electoral Commission v Langeberg Municipality 2001 9 BCLR 883 (CC); 2001 3 SA 925 (CC); Mket-
su v ANC 2003 1 SA 1 (SCA); see further Bekink B Principles of South African Local Government
Law (2006159 ff.
71 Schedule 1 of Act 117 of 1998. See also s 157(2) of the Constitution. If the electoral system
provides for ward representation, the wards must be demarcated by an independent body (s
157(4)). The Demarcation Board has been designated to perform this function – item 2 of
schedule 1 to Act 117 of 1998. See also the Municipal Demarcation Act 27 of 1998 and the Mu-
nicipal Electoral Act 27 of 2000.
72 S 157(3). See on the principle De Ville JR and Chohan-Khota F “Local government elections:
an exercise in proportional representation” 1996 SA Public Law 30. In Democratic Party v Miller NO
1997 2 BCLR 223 (D), 1997 1 SA 758 (D) it was held that a particular regulation was inconsistent
with the principle and accordingly invalid. The regulation provided that if a party’s candidate
list contained fewer names than the party is entitled to pursuant to the results of the election,
the number of members of the party in the council is reduced accordingly. See also para 2.2.5.
election. Juristic persons and persons who own property in the municipal area, but
who are not registered there on the national voters’ roll, therefore, have no right to
73
vote. Political parties serve also in the case of municipal elections as the vehicle for
the forming of opinions and the mobilisation of votes and must comply with the pre-
74
scribed requirements in order to participate in elections. Anyone who is qualified
to vote may be elected as a member of the municipal council, but certain persons
75 76
are not eligible. A person who is in the service of the municipality or the state, a
member of parliament, a provincial legislature, or another municipal council, and a
person who does not qualify for membership of the National Assembly, may not be
elected as a member of the municipal council. Somebody who does not qualify to be
77
a member may, however, be a candidate. That person must thus qualify before he
or she is elected. The validity of election regulations providing that a person whose
municipal debt is in arrears for more than three months does not qualify for
78
membership of the council has not been decided finally. A councillor vacates the
79
office when he or she becomes disqualified.
Other arrangements regarding the determination of the number of members of
each municipal council, proportional and ward elections, terms of office, by-elections,
and a code of conduct for councillors are made in the Local Government: Municipal
80
Structures Act.
2.2.4 Powers
The legislative and executive authority of a municipality is vested in the municipal
81
council. This authority must be exercised to realise the objects of local
________________________
73 S 157(5).
74 In ACDP v The Electoral Commission 2006 5 BCLR 579 (CC) the Constitutional Court over-
turned the Electoral Commission’s rejection of nominations for municipal elections due to
late payment of deposits, on the ground that the political party’s failure to notify the Com-
mission that the deposit had been paid, did not amount to non-compliance with the re-
quirements.
75 S 158. See also s 21 of Act 117 of 1998.
76 National legislation may exempt such a person (s 158(1)(a) and (b)).
77 S 158(2).
78 O’Meara NO v Padayachi; O’Meara NO v Govender 1997 2 BCLR 258 (D); Frans v Munisipaliteit
van Groot Brakrivier 1997 3 BCLR 346 (C), 1998 2 SA 770 (C). In the former case, the consti-
tutionality of the regulation had been referred to the Constitutional Court for a decision, but
in the latter case, the validity of the regulation was not in contention and the court accepted
its validity.
79 S 27 of Act 117 of 1998. In terms of the Constitution of the Republic of South Africa
Amendment Act 18 of 2002 and the Local Government: Municipal Structures Amendment
Act 20 of 2002 members of Municipal Councils may change their party membership during a
period of 15 days during September of the second and fourth year after a general election
without losing their seats. See United Christian Democratic Party v Independent Electoral Commis-
sion 2004 9 BCLR 995 (B), 2004 2 All SA 336 (B); Caluza v Independent Electoral Commission
2004 1 SA 631 (Tk); Shunmugam v The Newcastle Local Municipality 2008 5 BCLR 532 (N), 2008
JOL 21212 (N). See also the discussion in ch 8 para 2.3.6.
80 See on the latter schedule 5 to Act 117 of 1998 and see also Bekink B Principles of South African
Local Government Law (2006) 271 ff, as well as Mpakathi v Kghotso Development CC 2003 3 SA 429
(W).
81 S 151(2). The so-called “predominant administrative role” for local government allegedly
envisaged in s 156 (Pimstone G “Local government” in Chaskalson M et al (eds) Constitutional
Law of South Africa (1998) para 5A.34) is off-set by this express provision. In the Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 12 BCLR 1458 (CC),
1999 1 SA 374 (CC) it was accordingly stated: “Under the interim Constitution (and the 1996
Constitution) a local government is no longer a public body exercising delegated powers. Its
council is a deliberative legislative assembly with legislative and executive powers recognised
82 83
government and is constitutionally protected as explained before. The objects of
local government are to provide democratic and accountable local government,
ensure the sustainable provision of services, promote social and economic develop-
ment, promote a safe and healthy environment, and encourage public involvement
in local government.84 A municipal council may make by-laws85 on the local govern-
ment matters which are listed in schedules 4 and 5 of the Constitution.86
This includes the following subjects: air pollution, building regulations, child care fa-
cilities, electricity and gas reticulation, fire-fighting services, local tourism, airports,
planning, health services, public transport, public works, pontoons, ferries, jetties,
piers and harbours (excluding international and national shipping), stormwater man-
agement systems, trading regulations, water and sanitation services, beaches and
amusement facilities, billboards and advertisements in public places, cemeteries, fu-
neral parlours and crematoriums, cleansing, control of public nuisances, control of
undertakings that sell liquor, facilities for the accommodation, care and burial of ani-
mals, fencing and fences, licensing of dogs, licensing and control of undertakings that
sell food, local amenities, sport facilities, markets, abattoirs, parks and recreation,
roads, noise pollution, pounds, public places, refuse removal, refuse dumps and solid
waste disposal, street trading, street lighting, and traffic and parking.
A municipal council may also make by-laws on any matter assigned to it by national
or provincial legislation. The Constitutional Court confirmed that the original
legislative authority of a local government is derived directly from the Constitution.87
A municipal council has executive authority over all these matters and may imple-
ment by-laws on these matters for the effective management and administration of the
city or town.88 The national and provincial governments must, by agreement, assign
to a municipality the administration of the local government matters mentioned in
the schedules to the Constitution. The condition is that the specific matter will be
administered most effectively at local level, and that the municipality has the
capacity to administer it.89 The obligation of provincial and national authorities to
support and strengthen the capacity of municipalities to exercise their powers is
________________________
in the Constitution itself” (para 26); and: “The term ‘delegated legislation’ is no longer an
appropriate way of describing laws made by municipal councils under the new constitutional
order introduced by the interim Constitution” (para 34). See also Bekink B Principles of South
African Local Government Law (2006) 213 ff.
82 S 152. See para 1.1.
83 S 151(3) and (4). See para 1.2.
84 S 152(1). The fact that local government inter alia has a developmental object does not
relegate local governments to mere developmental agencies, instead of being fully-fledged,
democratically elected governmental institutions. See Bekink B Principles of South African Local
Government Law (2006) 69 ff, 281 ff.
85 They must be published in the official gazette of the province and must be accessible to the
public (s 162). The making of by-laws entails a legislative power and is not an administrative
action (Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998
12 BCLR 1458 (CC), 1999 1 SA 374 (CC) paras 26 34). See also Steele v South Peninsula Mu-
nicipal Council 2001 4 BCLR 418 (C), 2001 3 SA 640 (C).
86 S 156(1) and (2). See part B of each schedule to the Constitution. As mentioned, a municipal
by-law is subject to national and provincial legislation (s 156(3)).
1458 (CC), 1999 1 SA 374 (CC) para 38; City of Cape Town v Robertson 2005 3 BCLR 199 (CC),
2005 2 SA 323 (CC) para 62.
88 Ss 151(3) and 156(2).
89 S 156(1)(b) and (4). Ss 9 and 10 of the Local Government: Municipal Systems Act 32 of 2000
further regulate the assignment of powers to local government. The problem of unfunded
mandates which are discussed in ch 11 para 2.4(c) also exists in respect of local governments.
De Visser J “Powers of local government” 2002 SA Public Law 240–241 refers to so-called
procedural and substantive requirements to prevent the phenomenon, but as pointed out in
ch 11 para 2.4(c) unfunded mandates are simply unconstitutional and can be stopped by a
court order.
90
particularly relevant in this regard. A municipal council may also exercise any
power that is reasonably necessary for, or incidental to, the effective performance of
its functions.91
92
With regard to finance, a municipality may impose rates on property, surcharges
on service fees and, if authorised by national legislation, may impose other taxes,
levies or duties, but not income tax, value-added tax, general sales tax or customs
93
duty. According to the Constitutional Court these powers may not be revoked by
parliament.94 The Court also confirmed that a local government derives its authority
95
to impose rates and other fees directly from the Constitution. These powers may,
however, not be exercised in a way that materially and unreasonably prejudices
national economic policies, economic activities across municipal boundaries, or the
96
national mobility of goods, services, capital or labour. National legislation must
ensure that municipalities raise taxes commensurate with their fiscal capacity and
97
the capacity of their residents. A relationship of trust exists between a local gov-
ernment and its ratepayers, which gives the latter locus standi to question the validity
98
of decisions regarding rates and the spending of the income derived from it. Prop-
99
er publication of tariffs is a prerequisite for their enforceability.
The requirement in the Interim Constitution that the rates, levies and tariffs imposed
by a municipality had to be based on a uniform structure for its whole area of jurisdic-
100
tion caused problems and in a number of cases different aspects of this matter came
101
before the courts. The Constitutional Court finally held that a uniform structure
________________________
90 S 154(1). In MEC for Local Government, Mpumalanga v IMATA 2002 1 SA 76 (SCA) it was held
that this duty is judicially enforceable.
91 S 156(5).
92 See eg, MEC for KwaZulu-Natal, Housing v Mzunduzi Municipality 2003 4 BCLR 405 (N). In
Geyser v Mzunduzi Municipality 2003 3 BCLR 235 (N) a municipality’s refusal to issue a clear-
ance certificate for immovable property on which there was outstanding municipal rates and
fees was upheld. In De Beer NO v North Central Local Council and South Central Local Council
2001 11 BCLR 1109 (CC), 2002 1 SA 429 (CC) the Constitutional Court upheld a summary
procedure in terms of which a municipality could apply for a court order to sell a property on
which there were rates outstanding.
93 S 229(1). The initial text included excise taxes, but in In re: Certification of the Constitution of the
RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) the Constitutional Court regarded
it as an inappropriate tax for municipalities to impose: “Suffice it to say that the expression
[municipal excise taxes] includes taxes that are inappropriate for municipalities to impose”
(para 305). In Geyser v Mzunduzi Municipality 2003 3 BCLR 235 (N) it was held that “service
fees” include charges for electricity and water (249E).
94 Executive Council of the Western Cape v Minister for Provincial Affairs and Constitutional Development
of the RSA; Executive Council of KwaZulu-Natal v President of the RSA 1999 12 BCLR 1360 (CC),
2000 1 SA 661 (CC) para 26.
95 City of Cape Town v Robertson 2005 3 BCLR 199 (CC), 2005 2 SA 323 (CC) par 62.
96 S 229(2)(a). See the Municipal Rates Act 6 of 2004.
97 S 229(3). See the Municipal Finance Management Act 56 of 2003 and the Municipal Fiscal
Powers and Functions Act 12 of 2007.
671 (SCA) 676G–H, 1998 2 SA 1115 (SCA). See also Kelder v Kempton Park/Tembisa Metropolitan
Substructure 2000 2 SA 980 (SCA) in which the relationship was described as fiduciary in nature.
99 Weenen Transitional Local Council v Van Dyk 2000 4 BCLR 445 (N), 2000 3 SA 435 (N). The
decision was confirmed in Weenen Transitional Local Council v Van Dyk 2002 4 SA 653 (SCA).
100 S 178(2) of Act 200 of 1993.
101 Beukes v Krugersdorp Transitional Local Council 1996 3 SA 467 (W); Municipality of the City of Port
Elizabeth v Prut NO 1997 6 BCLR 828 (SE); East London Transitional Local Council v Tax Payers
Action Organisation 1998 10 BCLR 1221 (E); Lotus River, Ottery, Grassy Park Residents Association
v South Peninsula Municipality 1999 4 BCLR 440 (C), 1999 2 SA 817 (C).
102 103
does not necessarily imply uniform tariffs. Without deciding the case on this basis,
the Court gave the impression that, in view of the vast differences in prosperity be-
tween the traditional white and black residential areas, a municipality would be en-
titled, inter alia for the purposes of cross-subsidisation, to impose as a temporary mea-
sure in the former residential areas tariffs based on consumption, and in the latter
104
tariffs based on a flat rate. In other words, there was justification for the differentia-
tion in tariffs and this did not discriminate unfairly against the residents of white resi-
dential areas. In casu, however, the Court held that the selective enforcement of the
system, in that only residents of white areas were prosecuted for outstanding debt,
105
amounted to unfair discrimination. In Lotus River, Ottery, Grassy Park Residents Associa-
tion v South Peninsula Municipality the court in a similar case held that where different
tariffs applied to different areas as a temporary measure, the measure violated the
equality principle, but that under the circumstances it was justified in terms of the
106
general limitations clause. In Fedsure Life Assurance Ltd v Greater Johannesburg Transi-
tional Metropolitan Council a uniform rates tariff was imposed on all substructures of the
107
Metro Council. This created in some substructures a surplus which was used to fi-
nance the deficit in other substructures. Apart from section 178(2) of the Interim
Constitution, the provision in the proclamation in terms of which the Metro Council
had been established, that the Metro Council was entitled to claim from every sub-
structure an equitable contribution based on its gross or rates income was contended.
The Constitutional Court was equally divided on the question whether or not the uni-
form tariff was based on the gross or rates income, and whether the Metro Council
108
acted ultra vires by imposing it.
Where two municipalities exercise financial powers in the same area (for example,
in the case of a metropolitan council and its substructures),109 their powers must be
divided in terms of the Local Government: Municipal Structures Act, taking into
110
account certain financial considerations. This provision is aimed at the division of
powers between a district council and its constituent local municipalities.111 Like the
provinces, local governments are in addition entitled to an equitable share of the
national income to enable them to provide basic services and perform the functions
112
allocated to them. Additional income that a municipality raises by itself may not
be deducted in the determination of that municipality’s share, but the national
________________________
102 City Council of Pretoria v Walker 1998 3 BCLR 257 (CC), 1998 2 SA 363 (CC) para 85: “Section
187(2) does not stipulate that a uniform tariff be established but that it be based on a ‘uni-
form structure’. It should not be interpreted therefore to mean that the tariff must provide
for identical rates to be charged to all consumers regardless of the quality of service or the
type or circumstances of the user. That could produce a highly inequitable result.” See also
Rates Action Group v City of Cape Town 2004 12 BCLR 1328 (C), 2004 5 SA 545 (C), also Rates
Action Group v City of Cape Town 2006 1 SA 496 (SCA).
103 The case was fought and decided on the basis of the equality principle (s 9).
104 See paras 49 ff.
105 Paras 69–81.
106 1999 4 BCLR 440 (C), 1999 2 SA 817 (C).
1458 (CC), 1999 1 SA 374 (CC).
108 In effect, this caused the appeal against the decision of the Court a quo (Fedsure Life Assurance
Ltd v Greater Johannesburg Transitional Metropolitan Council 1997 5 BCLR 657 (W)) to be dis-
missed and the tariff remained in force.
109 See para 2.3.
110 S 229(3). See s 84 of Act 117 of 1998. (The Act could be adopted only after consultation with
organised local government and the Financial and Fiscal Commission (s 229(6)).
111 See para 2.3.
112 S 227(1). See also s 214(1). This was confirmed in Uthukela District Municipality v President of
the RSA 2002 11 BCLR 1220 (CC), 2003 1 SA 678 (CC) – see on this case ch 11 para 2.4.
government has no obligation to compensate a municipality that does not raise
income commensurate to its capacity. A municipality may, under certain conditions,
raise loans for capital or current expenditure.113 Municipal finances and budgets are
114
subject to national directives and control.
2.2.5 Functioning
A municipal council may make rules with regard to the internal arrangements,
business and proceedings of the council, and the establishment, composition, powers
and functioning of committees of the council.115 Unlike the Interim Constitution,
the Constitution does not prescribe the establishment of an executive committee,116
but subject to national legislation a municipality may choose to function according
117
to the executive committee system. The particulars regarding which municipalities
may establish executive committees, and the composition, powers and functioning
of executive committees appear in the Local Government: Municipal Structures
118
Act. Every municipality must elect a speaker and a mayor, but the Act provides that
only certain types of municipalities may elect executive mayors.119 Like municipal
councils, an executive committee, and other committees of the council, must be
composed on a proportional basis.120 In the case of an executive mayor, on the other
hand, the mayoral committee is appointed to assist the mayor and it is not regarded
121
as a committee of the municipal council which has to be composed proportionally.
A municipal council must function in an open manner and may close sittings of the
council or its committees only when it is reasonable to do so having regard to the
nature of the business to be transacted. Members of the council must be able to
participate in all proceedings in a way that allows parties fair representation and
122
that is consistent with democracy. A majority of the members must be present
________________________
113 S 230.
114 Ss 215 and 216.
115 S 160(6). See also Act 117 of 1998. See the exposition of Bekink B Principles of South African
Local Government Law (2006) 241 ff.
116 S 177 of Act 200 of 1993.
117 S 160(1)(c). National legislation may provide criteria for the establishment of committees
(s 160(5)).
118 S 42–47 of Act 117 of 1998.
119 S 54 of Act 117 of 1998. See ss 55 ff on their election, powers, terms of office, etc. (See s 48 on
a ceremonial mayor.)
120 S 43(2) of Act 117 of 1998 and s 160(8)(a) of the Constitution. This was also the position in
terms of the Interim Constitution (s 177), but often led to litigation – see Louw v Matjila 1995
11 BCLR 1476 (W); Crowther v Plaaslike Oorgangsraad vir Bethlehem 1997 8 BCLR 1010 (O);
Nasionale Party in die Oos-Kaap v Port Elizabeth Oorgangsraad 1998 2 BCLR 141 (SE). The same
interpretation has been given to s 160(8)(a) of the 1996 Constitution – Democratic Party v
Brakpan Transitional Local Council 1999 6 BCLR 657 (W), 1999 4 SA 339 (W); Democratic Alli-
ance v ANC 2003 1 BCLR 25 (C). See Bekink B “Special constitutional requirements with re-
gard to the composition and participation of members of municipal councils in the
committees of such councils” Konrad Adenauer Stiftung Seminar Report Constitution and Law
IV: Colloquium on Local Government Law (2002) 27.
121 Democratic Alliance v Masondo NO 2003 2 BCLR 128 (CC). See s 60(1)(a) of the Municipal
Structures Act which provides for the appointment of a mayoral committee, and s 160(8)(a) of
the Constitution which provides for fair representation for parties in a council and its commit-
tees. See the minority judgment of O’Regan J, who is of the opinion that s 60 must indeed be
interpreted subject to s 160(8) – paras 51 ff. See also the comments by Zybrands W A Perspec-
tive on Local Government in the New South Africa (1995) 211 and Malherbe “Minderheidsdeel-
name aan die uitvoerende gesag: kan en moet dit?” 2004 THRHR 159–170.
122 Such participation can be regulated by national legislation (s 160(9)(c)).
before a vote is taken and a decision is taken by a majority of votes cast. Decisions
regarding the approval of by-laws, the budget, tariffs and loans must, however, be
123
supported by a majority of the total number of members. No by-law may be
passed unless all members have received reasonable notice and it has been
124
published for comment. Provincial legislation must provide for the privileges of
125
council members.
The Constitution authorises local governments to appoint the personnel that are
necessary for the effective performance of their functions.126 The municipal man-
ager, who acts as head of the municipal administration, is a key component of the
administration whom the executive mayor may not appoint on his own.127
The provisions of the Constitution form the framework on which the Local
Government: Municipal Structures Act and all future laws and measures relating to
local government must be based.128
2.3 Categories and types of local government

Local governments or municipalities are classified into categories and types in
different ways. There are local councils or city councils, metropolitan councils, district
councils and various rural councils.129
130
There are about 300 local government institutions in South Africa. For historical
and political reasons they have always been classified into different categories.131 The
132
Constitution provides for the following three categories of municipalities:
________________________
123 S 160(3). Decisions about these matters may not be delegated (s 160(2)). Many of these
particulars were added after the Constitutional Court had held in In re: Certification of the Con-
stitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) that the procedures
of municipalities needed to be explained in more detail (para 301). See also s 30 of the Mu-
nicipal Structures Act 117 of 1998. In MEC for Development Planning and Local Government in the
Provincial Government of Gauteng v Democratic Party 1998 7 BCLR 855 (CC), 1998 4 SA 1157
(CC) the approval of a budget by a majority of councillors was declared invalid because a ma-
jority of two thirds, as prescribed by the Local Government Transition Act 209 of 1993 (which
remained in force until 30 April 1999 in terms of item 26 of schedule 6 of the 1996 Constitu-
tion) was not obtained. (See the comments by Pimstone G “Local government” in Chaskalson
M et al (eds) Constitutional Law of South Africa (1998) para 5A.25.) See also Steele v South Penin-
sula Municipal Council 2001 3 SA 640 (C).
124 S 160(4).
125 See Waters v Khayalami Metropolitan Council 1997 3 SA 476 (W) on the privileges of councillors
and their discipline. See also s 28 of the Municipal Structures Act 117 of 1998, which provides
for the freedom of speech of members in municipal councils and committees. This freedom
of speech was confirmed in Swartbooi v Brink (2) 2003 5 BCLR 502 (CC). See also Dikoko v Mo-
khatla 2007 1 BCLR 1 (CC), 2006 6 SA 235 (CC) in which it was held that the freedom of
speech enjoyed by a councillor does not extend to his appearance before a committee of the
provincial legislature.
126 S 160(1)(d). The Local Government: Municipal Structures Act 117 of 1998 contains several
other provisions in this regard – see the exposition by Bekink B Principles of South African Local
Government Law (2006). Bekink B Principles of South African Local Government Law (2006) 323 ff.
127 Mbana v Mnquma Municipality 2004 1 BCLR 83 (Tk), 2003 JOL 12106 (Tk).
128 Constitutional principle XXIV. See In re: Certification of the Constitution of the RSA, 1996 1996
10 BCLR 1253 (CC), 1996 4 SA 744 (CC) paras 299–305.
129 See the exposition by Bekink B Principles of South African Local Government Law (2006) 114 ff.
130 At the time of writing there were 278 municipalities in South Africa, consisting of 226 local
municipalities, 44 district municipalities and 8 metropolitan municipalities, see
https://www.gov.za/about-government/government-system/local-government (accessed
2018-07-27). By comparison, in 1994, there were still more than 1 200 local governments in
South Africa (De Beer J and Lourens L Plaaslike Regering: Die Pad na Demokrasie (1995) 179).
• Municipalities with exclusive legislative and executive powers in the relevant
133
municipal area – category A. They are also called metropolitan municipalities.
• Municipalities that share legislative and executive powers with a larger municipal-
ity in the third category – category B. They are also called local municipalities.134
• Municipalities with legislative and executive powers in an area that includes more
than one municipality – category C. They are also called district municipalities.135
The categories are formulated in vague terms and the Local Government: Municipal
Structures Act provides in addition for different types of municipalities in each
category.136
The types of municipalities are the following:
• Municipalities with an executive committee that exercises the executive authority
collectively.
• Municipalities with an137 executive mayor in whom the executive authority of the
municipality is vested.
• Municipalities in which the executive authority is vested in the plenary municipal
council.
• Municipalities with an executive committee combined with sub-councils that 138
have
been established for parts of the municipality to exercise delegated powers.
• Municipalities with an executive committee combined with ward committees that
have been
139
appointed in the municipality to deal with matters of concern to
wards.
• Municipalities with an executive committee combined both with sub-councils and
ward committees.
• Municipalities with an executive mayor combined with sub-councils that have been
established for parts of the municipality to exercise delegated powers.
• Municipalities with an executive mayor combined with ward committees that have
been appointed in the municipality to deal with matters of concern to wards.
________________________
131 S 1 of Act 209 of 1993 refers eg, to local authorities established in terms of the Black Local
Authorities Act 1982, local government bodies established in terms of the Black Administration
Act 1927, management boards established in terms of the Rural Areas Act (House of Represen-
tatives) 1987, committees established in terms of the Promotion of Local Government Affairs
Act 1983, local councils established in terms of the Local Councils Act (House of Assembly)
1987, regional services councils established in terms of the Regional Services Councils Act 1985,
joint services councils established in terms of the Joint Services for KwaZulu and Natal Act 1990
and joint decision-making bodies and joint local authorities established in terms of the Interim
Measures for Local Government Act 1991.
132 S 155(1). The categories were included in the Constitution pursuant to the finding of the
Constitutional Court in In re: Certification of the Constitution of the RSA, 1996 1996 10 BCLR
1253 (CC), 1996 4 SA 744 (CC) para 301 that it was required by constitutional principle
XXIV. See the exposition of Zybrands W A Perspective on Local Government in the New South Africa
(1995) 204–207.
133 S 1 of Act 117 of 1998. See n 38 above.
134 S 1 of Act 117 of 1998.
135 S 1 of Act 117 of 1998. In Uthukela District Municipality v President of the RSA 2002 5 BCLR 479
(N) it was held that these municipalities were also entitled to an equitable share of the na-
tional revenue, but in Uthukela District Municipality v President of the RSA 2002 11 BCLR 1220
(CC), 2003 1 SA 678 (CC) the Constitutional Court declined to confirm the order, on the
ground that the principle of co-operative government required the parties to solve the prob-
lem at a political level.
136 Ch 1 of Act 117 of 1998 – see s 155(2) and (3) of the Constitution.
137 An executive mayor is assisted by a mayoral committee – s 60 of Act 117 of 1998. See para
2.2.5.
138 See on subcouncils ss 61–71 of Act 117 of 1998.
139 See on ward committees ss 72–78 of Act 117 of 1998.
• Municipalities with an executive mayor combined both with sub-councils and ward
committees.
• Municipalities in which the executive authority is vested in the plenary municipal
council, combined with ward committees.
The Act prescribes which types of municipalities may be established within each of
the three categories of municipalities.140 The provinces establish the municipalities
themselves.141 Naturally, these provisions and actions remain subject to the pro-
visions of the Constitution regarding the composition, powers and functioning of
municipalities.142
Category A municipalities, or metropolitan councils, have been established for the
143
six largest metropolitan areas in South Africa. A metropolitan council may estab-
lish sub-councils consisting of the councillors of the metropolitan council for the
relevant area and with the powers and functions delegated to them by the metro-
144
politan council.
Local councils or city councils (in cities and towns) and rural councils (in rural
areas)145 can be described as primary local governments or municipalities in category
B. They are established for specific local government areas, are directly elected and
there are no other local government institutions within their areas. Their establish-
ment and the particulars regarding their composition, powers and functioning are
regulated by the provinces, subject to the provisions of the Constitution and the
Local Government: Municipal Structures Act. The Act specifically prescribes which
146
areas must have category B municipalities. Such a local municipality may fall
within a larger entity (district council).
District councils are secondary or category C municipalities, because they are
composed of representatives of primary or local municipalities. They are also estab-
lished by each province separately, but are based on the model of the former re-
147
gional services councils. District councils perform local government functions and
do not constitute a sphere of government between the provinces and local govern-
ment. The principal objectives of the councils are the cost-effective rendering of
services through co-operation among adjacent municipalities and communities,
integrated development planning for the region, capacity building of local munici-
148
palities, and the equitable distribution of resources. A district council and the
participating local municipalities must co-operate by assisting and supporting one
________________________
140 Ss 8–10 of Act 117 of 1998.

141 S 12 of Act 117 of 1998. See s 155(6) of the Constitution.
142 Para 2.2.
143 See the criteria for such establishment in s 2 of Act 117 of 1998.
144 S 61 ff of Act 117 of 1998.
145 There are also representative councils in rural areas (s 9B(4)(a) of Act 209 of 1993). See in
general on the transformation of rural local government Motshekga M “Models of rural local
government and the concept of co-operative government” Verloren van Themaat Centre
South Africa in Transition (fn 1) 38 ff.
146 S 2 of Act 117 of 1998.
147 Regional services councils existed in terms of the Regional Services Councils Act 109 of 1985.
(In Gauteng they were called services councils and in KwaZulu-Natal regional councils.) In
terms of Act 209 of 1993, regional services councils were dissolved before the local elections
of 1995 and 1996 and, in the case of urban areas, replaced by metropolitan councils and, in
the case of rural areas, transformed into district councils. Act 117 of 1998 now only provides
for district councils.
148 S 83(3) of Act 117 of 1998.
149
another. The area of jurisdiction of a district council is determined by the Demar-
cation Board. The functions of a district council are set out in the Local Govern-
ment: Municipal Structures Act and focus on the rendering of expensive bulk
services such as water, electricity, streets, waste disposal sites, sewerage plants, pas-
senger transport services, municipal airports, municipal health services, fire fighting
150
services, markets and abattoirs, cemeteries and crematoriums, and tourism. A dis-
trict council may impose taxes, levies and duties related to its functions.
151
District councils consist partly of elected and appointed councillors. The
appointed councillors are appointed by each participating local municipality to
represent that municipality in the district council.152 The elected councillors are
elected in accordance with a system of proportional representation of political
153
parties. Provision is made for the division of the area of jurisdiction of a district
council into subunits, called district management areas. Voters then have two votes,
one of which is cast for the area of jurisdiction as a whole, and the other is cast for
the relevant district management area.154 A total of 60% of the councillors of a
district council must be appointed by the participating local municipalities and
elected from the district management areas.155 The provisions of the Constitution
and the Local Government: Municipal Structures Act that apply to councillors also
apply to members of district councils.156
________________________
149 S 88(1) of Act 117 of 1998.

150 S 84.
151 S 23 and schedule 2 of Act 117 of 1998.
152 S 23(1)(b) of Act 117 of 1998.
153 MEC for Local Government and Development Planning of the Western Cape v Paarl Poultry Enterprises
CC t/a Rosendal Poultry Farm 2002 2 BCLR 133 (CC), 2002 3 SA 1 (CC).
154 Item 3 of schedule 2 of Act 117 of 1998.
155 S 23(2).
156 Para 2.2(b).
Part 2
The South African Bill of Rights
Chapter 13
Introduction, process, control
1 Introduction 253
2 The process to apply the Bill of Rights 255
3 Control and enforcement 258
4 Framework for the discussion of the general provisions and the rights 259
1 Introduction
A bill of rights consists of provisions in a constitution that define the rights of persons
and regulate the limitation of the rights.
The rights in a bill of rights describe the human conduct and interests protected in the
bill of rights and the duties of others not to violate the rights.
The most effective bills of rights are entrenched and enforceable by the courts.
The oldest and best-known national Bill of Rights which is entrenched and enforce-
able by the courts is that of the United States of America. It consists of human rights
provisions in the original Constitution of 1789 and the later amendments. From the
beginning, two particular techniques have been employed to ensure the effective
enforcement of the rights, namely entrenchment of the Bill of Rights as part of the
Constitution and judicial control. The American Constitution is so strongly entrench-
ed that neither the federal legislature nor the legislatures of the member states may
on their own adopt statutes that amend or repeal provisions of the Constitution.
This implies that all laws of these legislatures that limit rights must conform to the
provisions of the Bill of Rights. At the same time, it has always been accepted that
the courts may invalidate not only executive acts, but also statutes of congress and
the state legislatures, should they be inconsistent with the Bill of Rights.
During the nineteenth and early twentieth centuries, human rights provisions
were included on a grand scale in most Western European Constitutions. These
guarantees were not very effective. Even though some of these Constitutions were
entrenched, due to the influence of the doctrine of parliamentary sovereignty and,
in some instances, the tenacity of authoritarian trends, judicial control over acts of
parliament was never applied effectively. Judicial control over acts of parliament was
generally not employed until after the Second World War, for instance under the
Constitutions of Germany, Italy, Portugal and Spain. In other parts of the world, for
example in Africa and Asia, Bills of Rights have been included in almost every Con-
stitution that has come into being since the Second World War.
The 1918 Constitution of the USSR also contained human rights provisions. Ex-
tensive human rights provisions were characteristic of most communist constitu-
tions.1 The provisions were even more extensive than those of Western Bills of
________________________
1 Simons WB The Constitutions of the Communist World (1980) 634.
253
Rights, but hardly any provision was made for their effective enforcement. These
Bills of Rights disappeared with the fall of the communist systems of Eastern Europe
and were replaced with new ones.
Since the Second World War, human rights provisions have also become part of
international law.
Especially within the framework of the United Nations Organisation, various de-
clarations and treaties on human rights have been adopted. The most significant of
these are the Universal Declaration of Human Rights which was adopted by the General
2
Assembly of the UN in 1948, the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights both of which
came into force in 1966. Apart from the latter two general conventions, and as a
consequence of the activities of various United Nations specialised agencies (for
example the International Labour Organisation), numerous international treaties
3
have been concluded dealing with particular rights, the protection of certain
4 5
groups and particular forms of discrimination. The greatest success in the inter-
national protection of human rights has been attained in Western Europe with the
European Convention for the Protection of Human Rights and Fundamental Freedoms of
1950. Apart from an extensive Bill of Rights to which member states committed
themselves, the states also afforded their citizens direct access to the European Com-
mission of Human Rights and the European Court of Human Rights. The states of
North and South America adopted the American Convention for Human Rights which
came into force in 1978. In 1986, the African Charter on Human and Peoples’ Rights
came into force.
Until the commencement of the Interim Constitution, South Africa took no part in
the world-wide trend of protecting human rights by means of constitutional pro-
visions and international agreements.
The formal position in South Africa was the same as in any other state without an
entrenched and justiciable Bill of Rights. There were no limitations on parliament
to arbitrarily restrict or abolish individual rights. In addition, the majority of the
South African population was not represented in parliament. This fact and
parliamentary sovereignty enabled white minority governments to introduce and
refine the apartheid system. Based on race classification and separation, the system’s
main feature was that the contents of rights and duties were determined to the
benefit of whites and to the detriment of all the other groups. All spheres of life and
all fundamental rights were affected – personal, social, economic and cultural status,
personal freedom and freedom of association, marriage, family life, sexual relations,
free expression and assembly, movement, residence and settlement, access to land,
labour relations, political activities, education, housing, health care and social
services.6
________________________
2 The Declaration provides the framework and basis of the contributions in Robertson M (ed)
Human Rights for South Africans (1991).
3 Eg, conventions against genocide, war crimes, crimes against humanity including apartheid,
slavery, trade in people, forced labour and torture, and conventions dealing with asylum, in-
formation, privacy and social security.
4 Eg, refugees, stateless persons, persons with disabilities, persons belonging to national or
ethnic, religious and linguistic minorities, workers, women, children and the soldiers, prison-
ers and civilians in armed conflict.
5 Eg, with regard to race and gender and in education, employment and occupation.
6 See Dugard CJR Human Rights and the South African Legal Order (1978) ch 1–3.
Chapter 13 Introduction, process, control 255
This position changed dramatically at the commencement of the Interim Constitution.
A Bill of Rights which formed part of the entrenched Constitution and extensive
7
judicial control over compliance with the Bill of Rights were provided for. Under
the constitutional principles with which the new Constitution had to comply, the
Constitutional Assembly included a Bill of Rights in the new Constitution according
to which “everyone . . . [enjoys] all universally accepted fundamental rights and
freedoms and civil liberties, which [are] protected by entrenched and justiciable
8
provisions of the Constitution”. Section 7(1) of the Constitution reads: “This Bill of
Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all
people in our country and affirms the democratic values of human dignity, equality
and freedom.”
The effect of the coming into operation of the Constitution on the law that ex-
isted at its commencement, actions performed before the commencement, and
court cases pending at the commencement, are discussed in Chapter 3 paragraph
2.2.5.
The South African Bill of Rights is contained in Chapter 2 of the Constitution. It
comprises 33 sections. Six of these sections contain general provisions on the inter-
9
pretation and application of the Bill of Rights, and the other 27 sections guarantee
specific rights.
2 The process to apply the Bill of Rights

2.1 The process 255
2.2 Interpretation 256
2.3 Application to the facts 257
2.1 The process

A Bill of Rights is applied when it is determined what the effect of the rules in the
Bill of Rights is on a particular situation.
The process presupposes that clarity exists on (a) the contents of the provisions of
the Bill of Rights which is determined by the interpretation of the Bill of Rights; and
(b) the facts to which the rules are applied.
There is no fixed order in which steps must be taken to apply the provisions of the
10
Bill of Rights. When, for example, D alleges that her right guaranteed in section x
________________________
7 See Du Plessis LM and Corder H Understanding South Africa’s Transitional Bill of Rights (1994)
ch 1, Klug H Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction
(2000) and Ebrahim H The Soul of the Nation: Constitution-making in South Africa (1998) for an
account of the negotiations on the Bill of Rights in the Interim Constitution and the Constitu-
tion.
8 Constitutional principle II of the Interim Constitution.
9 Ss 7, 8 and 36–39.
10 Although steps to apply a particular right reflect their authors’ understanding of the relevant
provisions and how the right relates to other rights and the general provisions of the Bill of
Rights, the steps are not primarily the outcome of “the interpretation of the Constitution”.
They are tools for the application of a right. Provided that all relevant matters are taken into
account, different sets of steps represent only different routes to the same destination. This
means that the precedential effect of steps which the Constitutional Court announces should
not be overrated. For example, the steps which the court has developed for the application of
the right to equality in Harksen v Lane NO 1997 11 BCLR 1498 (CC), 1998 1 SA 300 (CC), are
of the Bill of Rights has been infringed by E, the application of the Bill of Rights
could proceed as follows:
By interpreting the provisions of the Bill of . . . and applied to the particular case
Rights it must be established . . .
1 which conduct and interests are protected
by section x (for example, “life” or “free- . . . and whether such conduct and interests of D
dom of religion”) . . . were affected in the particular instance;
2 who the bearers of the right guaranteed in
section x are (for example, juristic persons,
citizens or children) . . . . . . and whether D is such a person;
3 which persons and institutions are bound
by section x and what their duties in terms
of the right are (for example, all or certain . . . and whether E is such a person or institution
state organs, parastatal institutions, or and has fulfilled its duties;
private persons) . . .
4 what the requirements are for the limita- . . . and whether the limitation of D’s right
tion of the right in section x . . . complied with these requirements.
The general rules and principles that apply to each of the four stages are discussed
in chapters 15 to 18 below.
2.2 Interpretation
The interpretation of the Constitution is discussed in chapter 3 paragraph 2.3. By
means of summary, the following should be consulted when determining the mean-
ing of a provision of the Constitution, and more particularly of the Bill of Rights: the
text of the provision and the Constitution as a whole; the values that underlie an
open and democratic society based on human dignity, equality and freedom;
international law; foreign law; the constitutional principles with which the new
Constitution had to comply; background evidence on negotiations; and the history
of human rights violations.
The answers to the questions in the first column of the table in paragraph 2.1 will
be determined mainly by the particulars of the section of the Bill of Rights in which
the right is entrenched. Details concerning a particular right may also appear in the
rest of the Constitution. The right to stand for public office must, for example, be read
with the qualifications for access to various public offices in the rest of the Constitu-
11
tion.
General provisions and principles that deal with the application of rights are dis-
cussed below, namely the bearers of rights in chapter 15, the conduct and interests
protected by the Bill of Rights and the corresponding duties in chapter 16, the per-
sons and institutions who are bound by the Bill of Rights in chapter 17, and the
limitation of rights in section 18.
Section 39(2) of the Constitution contains a provision relating to the effect of the
Bill of Rights on the interpretation of ordinary legislation and on the development
of the common law and customary law. This provision is discussed in chapter 14.
________________________
so complicated and somewhat ill-conceived that although the court still formally refers to
them, it has already abandoned some of the steps. See ch 19 para 5.
11 S 19(3)(b).
2.3 Application to the facts

Answering the questions in the second column above requires that factual findings be
made. Should it, for instance, be alleged that an executive act was inconsistent with
the Bill of Rights, it would have to be established, with reference to the facts,
whether the act did indeed affect the conduct and interests protected by the Bill of
Rights. Another example would be the question of whether the prohibition of a
specific meeting was unconstitutional. Because the Bill of Rights protects only
“peaceful” meetings, it would have to be established on the basis of the facts whether
the meeting was indeed “peaceful”.
The Constitution does not contain provisions on which party must adduce evidence
to prove facts. The courts employ a two-stage approach for these purposes:12
• First, it is determined whether the right has been factually limited. Facts to
substantiate this aspect must be proved by those who allege that the right has been in-
fringed.
• Secondly, it is determined whether the factual limitation can be justified in terms
of the limitation clauses. Facts to substantiate this must be proved by those who al-
lege that the factual limitation is constitutional.
The Constitution contains no provision on the standard of proof. The standard of
proof in civil cases, namely that parties who bear the onus of proof must prove the
facts on which they rely on a balance of probabilities, is applied.13
The Constitutional Court has emphasised that once an applicant has made out a
convincing case that the respondent (parliament, an executive or administrator, a
court, or an individual) has factually affected the conduct and interests protected by
a particular right or has factually breached the duties imposed by a right, the
respondent’s efforts to justify his or her actions must be based on sound and
verifiable information; generalised policy statements based mainly on instinct and
unfounded considerations are not enough. The courts must be furnished with clear
“information of the best quality that can reasonably be obtained”.14 In principle, this
should happen, not only when respondents present their arguments to a court, but
already when the limitations are imposed by the legislature, the executive or private
individuals. This is what accountability means within the framework of the Bill of
Rights.
Although one of the parties bears the onus of proof with regard to the facts which
a court must take into account, no party bears any onus of proof in respect of the
interpretation of the Bill of Rights.15 There is likewise no onus of proof in respect of
________________________
12 The courts follow the Canadian approach (R v Oakes (1986) 26 DLR (4th) 200 (SCC) 255).
See, amongst others, S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 102;
Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 44;
Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA 794
(CC) para 22.
14 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2013 12
15 Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 44. A
rule on onus of proof applies to the proving of facts – when a court is in doubt about whose
rendition of the facts is correct, the court accepts the rendition of the party on whom the onus
of proof does not rest. Of course, parties before a court often disagree on the meaning of legal
rules in the Bill of Rights. However, the court must then decide which the correct meaning is
(it could turn out that the court differs from all the meanings presented to it by the parties)
without resolving any doubt which it may have by resorting to a rule on onus of proof.
the implications of applying a particular rule or standard (for example, reasonable-
16
ness) in the Bill of Rights to a particular set of facts that has been proved.
When a party who has limited a right does not provide arguments to justify the
limitation, and the validity of the impugned action or legislation is a matter of great
public interest, the court must still consider whether the limitation is permissible in
17
terms of the limitation clauses.
3 Control and enforcement

The effectiveness of a Bill of Rights depends largely on the nature and extent of the
control exercised over compliance with its provisions. Control could take several
18
forms.
Public control can be effected through the exercise of the rights to freedom of
expression and the media, and the right to freedom of association, which enables
the establishment of organisations for the promotion of human rights and control
over organs of state.
Although judicial control is not the only form of control over compliance with the
provisions of a Bill of Rights, and although the existence of provisions in this regard
has not prevented serious human rights abuses in several states, judicial control is
considered to be a key element of any system for the effective protection of human
19
rights. Judicial control over compliance with the South African Bill of Rights forms
part of judicial control over compliance with the Constitution as a whole and is
discussed in chapter 10 paragraph 5.
The Bill of Rights guarantees a right to judicial control over compliance with the Bill
of Rights. Section 38 guarantees a right to approach a competent court with allega-
tions that a right in the Bill of Rights has been infringed or threatened and the court
may grant appropriate relief. This right is discussed in chapter 27 paragraph 3.
An important prerequisite for public control is an awareness and knowledge among
the population of the extent of their rights, and the ways in which these rights may
be enforced. For this purpose, and to investigate human rights violations, the South
20
African Constitution provides for a Human Rights Commission.
The Commission consists of South African citizens who are fit and proper persons to
serve on the Commission. The members are nominated by a committee of the
________________________
16 Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA) para 31. See Beckerling TW
“Die plek van die bewys- of weerleggingslas in geskille rakende handvesregte – ’n teoretiese
beskouing” 1996 TSAR 302.
17 Du Toit v Minister for Welfare and Population Development 2002 10 BCLR 1006 (CC), 2003 2 SA
198 (CC) para 31; Moise v Transitional Local Council of Germiston 2001 8 BCLR 765 (CC), 2001 4
SA 491 (CC) para 19; Phillips v Director of Public Prosecutions (WLD) 2003 4 BCLR 357 (CC), 2003
3 SA 345 (CC) paras 19–20. Although the Constitutional Court stated in Minister of Home Affairs
v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) 2004 5 BCLR
445 (CC), 2005 3 SA 280 (CC) para 34, that the onus in bill of rights litigation “is not the con-
ventional onus of proof as it is understood in civil and criminal trials where disputes of facts
have to be resolved”, the court’s explanation of what the onus entails in paras 35–36, does not
differ from the explanation in the text above.
18 See in general in this regard Strossen N “Translating a bill of rights’ paper guarantees into
meaningful human rights protections” in Kruger J and Currin B Interpreting a Bill of Rights
(1994) 50 ff.
19 Cappelletti M “Judicial review of the constitutionality of state action: its expansion and legiti-
macy” 1992 TSAR 264.
20 S 184. The details are regulated in the South African Human Rights Commission Act 54 of
1994.
National Assembly on which all parties in the Assembly are represented proportion-
ally, approved by a majority of the members of the Assembly and formally appointed
by the President. Members of the Commission must reflect the race and gender com-
21
position of South Africa. Broadly speaking, the functions of the Commission are to
promote respect for human rights and a culture of human rights; to promote the de-
velopment, protection and attainment of human rights; and to monitor and assess the
22
observance of human rights in the Republic. The powers of the Commission are regu-
lated by legislation. According to the Constitution the powers include to investigate
and report on the observance of human rights; to take steps to secure appropriate re-
23
dress where human rights have been violated; to carry out research; and to educate.
Organs of state must provide the Commission with annual reports on what they have
done towards realising the rights concerning housing, health care, food, water, social
24
security, education and the environment.
The Commission on Gender Equality25 and the Commission for the Promotion and
Protection of Cultural, Religious and Language Communities26 also play a role to
promote and protect certain rights.
4 Framework for the discussion of the general provisions and the

rights
Chapters 14 to 18 deal with the general provisions in the Bill of Rights relating to
• the persons and institutions protected by the Bill of Rights;
• the influence of the Bill of Rights on the interpretation of legislation and the
development of the common law and customary law;
• the duties imposed by the rights and the conduct and interests protected by the
right;
• the persons and institutions bound by the Bill of Rights; and
• the limitation of rights.
The rights are discussed in chapters 19 to 27 with reference to
• the protected conduct and interests protected by a right;
• the persons and institutions bound by the right and their duties; and
• the limitation of the right.
Certain rights, for example, political rights, the environmental rights, rights in re-
spect of labour relations and criminal procedural guarantees are dealt with extensively
in other courses. Rights like these are discussed in less detail than the other rights.
The steps to be taken in the application of most rights are straightforward. Within
the framework of the two-stage approach, one could determine whether somebody
bound by the right concerned of which the complainant is the bearer, has not
complied with the duties imposed by the right; and when that has been the case,
whether the non-compliance can be justified in terms of limitation clauses. However,
as acknowledged by the Constitutional Court, certain rights, such as the right to
equality and the right to property, have complicated structures which require the
development of special guidelines to apply them.
________________________
21 S 193(1) (2) (4) (5). S 194 regulates the removal from office of commissioners.
22 S 184(1).
23 S 184(2).
24 S 184(3).
25 S 187. The details are regulated in the Commission on Gender Equality Act 39 of 1996.
26 Ss 185 and 186. The details are regulated in the Commission for the Promotion and Protection
of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2002.
Chapter 14
Interpretation of legislation
Development of common law and customary law
1 Interpretation of legislation in conformity with the Constitution when

considering its constitutional validity 261
2 Promoting the spirit, purport and objects of the Bill of Rights through the
interpretation of legislation when its constitutionality is not considered and
the development of common law and customary law 266
Section 39(1) of the Constitution provides that when interpreting the Bill of Rights
a court, tribunal or forum (a) must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom; (b) must
consider international law; and (c) may consider foreign law. The sources of
interpretation referred to in this provision can also be used to interpret other
provisions of the Constitution and they are therefore discussed in chapter 3
paragraph 2.3.2 with all the other sources of interpretation of the South African
Constitution. At the same time, it is important to note that when the Bill of Rights is
interpreted, all the sources of constitutional interpretation discussed in chapter 3
1
may be useful and not only those referred to in section 39(1). In this chapter the
interpretation of all legislation in conformity with the Constitution (including the
Bill of Rights) and the interpretation of legislation and the development of the
common law and customary law to promote the spirit, purport and object of the Bill
of Rights are discussed.
1 Interpretation of legislation in conformity with the Constitution

when considering its constitutional validity
When legislation can be interpreted in more than one way and at least one of the
interpretations is a reasonable interpretation that complies with the Bill of Rights,
that interpretation must be followed.
This rule is known as “interpretation in conformity with the constitution” and it is
2
applied in most systems. In South Africa, there has always been a common-law rule
that whenever there is doubt about the meaning of a legal rule because more than
one reasonable meaning can be attached to it, a meaning under which the rule will
3
be valid rather than invalid must be followed – ut res magis valeat quam pereat. The
________________________
1 See Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) para 59.
2 See Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) para 59.
3 In Ynuico Ltd v Minister of Trade & Industry 1995 11 BCLR 1453 (T) 1468G–J the court ex-
plained that the common-law rule is a “rule of interpretation, tested and applied over many
centuries: ut res magis valeat quam pereat. It has its origin in the Roman law where it is set out in
Digest 1.3.19 In ambigua voce legis ea potius accipienda est significatio, quae vitio caret. Through
261
Interim Constitution provided that the rule must be followed in applying the
4
Interim Constitution. The rule was omitted from the Constitution. In principle, the
common-law rule therefore applies,5 but according to the Constitutional Court the
rule must now be applied under section 39(2) of the Constitution which provides
that legislation must be interpreted to promote the spirit, purport and objects of the
6
Bill of Rights. Although it could be argued that interpretation in conformity with
the Constitution when we investigate the constitutionality of legislation forms part of
interpretation to promote the spirit, purport and objects of the Bill of Rights under
section 39(2), section 39(2) could also cover instances in which the constitutionality
of legislation is not investigated. The latter instances have certain separation-of-
powers implications and they are discussed separately in paragraph 2.1 below.
The rule has been applied in many court cases and the following guidelines have
been developed in respect of its application:
(a) The rule applies to meanings which can reasonably be attached to a provision. The
reference to reasonably is important. The interpretation “must not be fanciful
or far-fetched but one that reasonably arises from the challenged text without
7
unwarranted strain, distortion or violence to the language”. When an interpre-
tation is followed which is not reasonable, the meaning is arbitrarily changed
into something which the legislature clearly did not express in the language it
used. A reasonable interpretation must have a clear and precise meaning; it
must enable those to whom it applies to understand what is expected of them.8
________________________
Roman-Dutch law it was accepted into our law. R v Pickering 1911 TPD 1054; R v Correia 1958 1
SA 533 (A) 542”.
4 Ss 35(2) and 232(3) of the Interim Constitution. S 35(2) was consider in, for example, Case v
Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 5 BCLR 609 (CC), 1996
3 SA 617 (CC) para 76; S v Bhulwana; S v Gwadiso 1995 12 BCLR 1579 (CC), 1996 1 SA 388
(CC) paras 25, 26, 28, 29; Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) paras
59–61; Nel v Le Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562 (CC) para 21; Harksen v Lane
NO 1997 11 BCLR 89 (CC), 1998 1 SA 300 (CC) paras 74–76; S v Baloyi 2000 1 BCLR 86 (CC),
2000 2 SA 425 (CC) paras 24–25.
5 See Du Plessis L “A preliminary estimation of the role of the presumptions of statutory inter-
pretation in the new constitutional dispensation” 1998 SALJ 758.
6 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 7 BCLR 687
(CC), 2004 4 SA 490 (CC) para 73; Chagi v Special Investigating Unit 2009 3 BCLR 227 (CC),
2009 2 SA 1 (CC) para 14; Van Vuren v Minister for Correctional Services 2010 12 BCLR 1233 (CC)
para 7; Democratic Alliance v African National Congress 2015 3 BCLR 298 (CC), 2015 2 SA 232
(CC) paras 41, 42.
7 Daniels v Campbell 2004 7 BCLR 735 (CC), 2004 5 SA 331 (CC) para 83; Director of Public Prosecu-
tions, Cape of Good Hope v Robinson 2005 2 BCLR 103 (CC), 2005 4 SA 1 (CC) para 54; Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2008 11 BCLR 1123 (CC), 2009 1 SA 337 (CC) para 107; see
also Case v Minister of Safety & Security; Curtis v Minister of Safety & Security 1996 5 BCLR 609
(CC), 1996 3 SA 617 (CC) para 76: “Reading down . . . is appropriate only where the language
of the provision will fairly bear the restricted reading. Otherwise, it amounts to naked judicial
law-making.”
8 Jordan v S 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) para 40; Investigating Directorate, Serious
Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2000 10 BCLR 1079 (CC), 2001 1 SA 545
(CC) paras 23–24. In the Hyundai case para 24 the court stated that “a balance will often have
to be struck between the rule that legislation must be interpreted in conformity with the con-
stitution and the rule that legislative provisions must be clear, understandable and precise”.
This is incorrect. No balancing is involved in such instances. When alternative interpretations
are not clear, understandable and precise, they may simply not be followed because they are
not “reasonable” interpretations.
Chapter 14 Interpretation of legislation – Development of law 263
(b) The rule applies only to the interpretation of legislation of which the validity is under
consideration, and not to the interpretation of the provisions of the Constitution. There
is therefore no rule that a provision of the Bill of Rights has to be interpreted in
such a way that the legislation under consideration would be valid rather than
invalid.
(c) The application of the rule comprises different steps.
(i) It must be determined whether a provision has two or more meanings that
can reasonably be attached to it. At this stage “constitutional considerations”
play no role. It must only be determined whether more than meaning can rea-
sonably be attached to the provision. The rule does not apply when a provision can
reasonably have only one meaning. In such a case there is no alternative interpreta-
9
tion to be considered and the court must then simply apply the Constitution to
decide whether that one meaning is constitutional or not.10
(ii) When there are more than one reasonable interpretations, it must be de-
termined whether any of these reasonable interpretations are consistent with
the Bill of Rights. This involves that it must be investigated whether a particular
interpretation factually limits a right and, if so, whether the factual limitation is
justifiable in terms of limitation clauses.
(d) When the validity of different reasonable interpretations are considered, individual rights
may not be prioritised at all costs. This means that the justifiability of factual limita-
tions under limitation clauses must also be considered. For example, according
to section 36(1)(c) of the Constitution, the nature and extent of a limitation is
a factor which must be taken into account. When, for example, both interpre-
tations A and B of a legislative provision amount to an infringement of a right,
but A has less serious consequences than B, A may be capable of surviving the
limitation analysis, whereas that would not be the position with B. A must then
11
be followed.
In S v Basson the Constitutional Court said: “The mere fact that [an interpreta-
tion] is more favourable to an accused person is in our view insufficient to call for
an interpretation of section 18(2) which is inconsistent with the realities of a
modern State, where international criminal conspiracies organised and directed
from one country often involve criminal acts to be committed in other countries,
12
and the proceeds of the crime to be laundered elsewhere.” And in City of
Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd the court stated: “Where
more than one right is affected, it is inappropriate to choose a meaning that
________________________
9 Mateis v Ngwathe Plaaslike Munisipaliteit 2003 4 SA 348 (SCA) para 10; NUMSA v Bader Prop (Pty)
Ltd 2003 2 BCLR 182 (CC), 2003 3 SA 513 (CC) para 37; Richter v Minister of Home Affairs 2009
5 BCLR 448 (CC), 2009 3 SA 615 (CC) paras 60 and 63.
10 In Jordaan v Tshwane Metropolitan Municipality 2017 11 BCLR 1370 (CC), 2017 6 SA 287 (CC)
the Constitutional Court held that s 118(3) of the Local Government Municipal Systems Act 32
of 2000 could only have one meaning and that that meaning was constitutional, but the court
nevertheless investigated the constitutionality of an alternative meaning which the court, in the
first place, said the section could not possibly have. The court probably wanted to discourage
the legislature from changing the section to something which is unconstitutional.
11 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2000 10
BCLR 1079 (CC), 2001 1 SA 545 (CC) paras 50–52. In concluding that the interpretation in
conformity with the Bill of Rights which it followed was preferable to other interpretations, the
Constitutional Court in Mankayi v Anglogold Ashanti Ltd 2011 5 BCLR 453 (CC), 2011 3 SA 231
(CC) para 88 took into account that its preferred interpretation has a less severe impact in
terms of the nature and effect of the limitation than the alternative interpretation followed by
the Supreme Court of Appeal.
12 S v Basson 2005 12 BCLR 1192 (CC), 2005 1 SA 171 (CC) para 238.
promotes one right while at the same time it is at odds with other rights. In those
circumstances, the promotion of the objects of the Bill of Rights cannot be con-
fined to the impact on one right. … Therefore, in construing the relevant provi-
sions, we must pay attention not only to the rights contained in the freedom of
13
expression clause but also to the property rights protected by section 25”.
(e) An interpretation which is otherwise consistent with the Constitution is not permissible if
it would extend the scope of a crime to cover action which up to then has not been a crime.
Such a result “would be destructive of the principle of legality which requires
certainty as to the definition of crimes” and would be inconsistent with section
35(3)(l) of the Constitution, which section guarantees a right not to be tried
for an offence that was not a crime at the time it was committed.14 This princi-
ple applies to both statutory and common-law crimes.
In Masiya v Director of Public Prosecutions (Pretoria), the Constitutional Court ex-
tended the common-law definition of rape to cover actions which had not been
considered to constitute rape in terms of the existing definition. The court did
not apply the new definition to the accused in that case, but ruled that it would
15
apply only to future cases. The problem of retrospectivity was thus avoided, but
the decision is nevertheless controversial. In principle, the courts should not be
involved in creating new crimes or extending existing crimes. It is one thing to
refuse to follow an interpretation which is more favourable to an accused than
the present interpretation, because there are countervailing public interests
which justify the present position (see (d) above). It is completely different when
a court reduces the rights of individuals by creating new crimes or by extending
the definitions of existing crimes, even if it is done prospectively. Although crim-
inal law protects the rights of individuals against criminals, it is an instrument
16
which must be handled with great care. Its enforcement could involve the exer-
cise of extreme forms of physical force by the state and it has often been used as
the prime instrument for repression. Democratically elected parliaments should
bear the responsibility for creating new crimes or for extending the definition of
existing crimes. Of course, limiting (as opposed to extending) the scope of a
17
crime by interpreting in conformity with the Constitution is permissible.
Interpretation in conformity with the Constitution is also known as reading down. “Reading
down” must be distinguished from “reading in” which is a kind of order a court may
make after the court has decided that a provision is unconstitutional.
“[T]he technical sense in which the term ‘reading down’ is ordinarily used by this
court, is a method of constitutional construction whereby a more limited meaning is
given to a statutory provision, where it is reasonably possible to do so, in order
that the provision in question may not be inconsistent with the Constitution;
whereas the term ‘reading in’ is used to connote a possible constitutional remedy fol-
18
lowing on a finding of the constitutional invalidity of such a provision.”
________________________
13 City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd 2015 11 BCLR 1265 (CC),
205 6 SA 440 (CC) paras 34, 36 See also Minister of Defence and Military Veterans v Thomas
2015 10 BCLR 1172 (CC), 2016 1 SA 103 (CC) paras 39, 56.
14 Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) para 46.
15 S v Masiya 2007 8 BCLR 827 (CC), 2007 5 SA 30 (CC).
16 Snyman C “Extending the scope of rape – a dangerous precedent” 2007 SALJ 677; De Villiers D
“Parlementêre voetesleep en uitgediende misdaaddefinisies – is regterlike ingryping die op-
lossing?” 2007 TSAR 769.
17 In Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) paras 28, 48, the court held that
the phrase “unlawful sexual intercourse” in s 2(1)(aA) of the Sexual Offences Act 23 of 1957 is
reasonably capable of being read to cover only commercial sex and not any unlawful sex which,
technically speaking, could include all extra-marital sexual intercourse by married people.
18 Ex parte Minister of Safety and Security: in re S v Walters 2002 7 BCLR 663 (CC), 2002 4 SA 613
(CC) para 21 fn 30. Emphasis added. See also Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal
Interpretation in conformity with the Constitution (and the old common-law rule that if possible
provisions should be interpreted to be valid) is used when one wants to find out whether a
provision is constitutional or unconstitutional. It is about validity and invalidity, and not
about finding out which one of two constitutionally valid alternatives conforms better to
the Constitution than the other one. However, because the Constitutional Court
bases its application of the rule in conformity on section 39(2), there have been
instances in which the court held that the rule can also be applied when the consti-
tutionality of the legislation is not in issue. These instances are discussed in para-
graph 2.1 below.
Various techniques are used to interpret in conformity with the Constitution:
(i) Interpretation in conformity with the Constitution is often achieved by using a general
term in a legal rule as a point of entry for the application of the Bill of Rights, for
example, terms such as “reasonable”, “fair” or “appropriate”. In such instances,
a court could argue that these general terms can be interpreted to mean that
there may not be unjustified infringements of rights in the Bill of Rights.
(ii) Interpretation in conformity with the Constitution may also be achieved by reading such a
general term into an existing rule and then to use the term in the same way as in (i)
above.
Example. In both the Supreme Court of Appeal and the Constitutional Court it
was held that the requirements in the prohibition against dilution of a trade mark
in section 34(1)(c) of the Trade Marks Act 194 of 1993 that the offending mark
must be “detrimental to” a registered trade mark, can reasonably be interpreted
to mean “unfairly detrimental” and that fairness in this regard means that the
19
right to freedom of expression may not be limited unconstitutionally. In this
way, the prohibition could be interpreted in a way which is not inconsistent with
the Constitution.
(iii) A legal rule may also be interpreted in conformity with the Constitution simply because it
20
contains nothing that contradicts the Bill of Rights.
Example. In Du Toit v Minister of Transport, the Constitutional Court noted that
differences “which may affect the fairness of the amount of compensation” exist
between the wording of section 25(3) of the Constitution which contains the con-
stitutional standards for the payment of compensation for expropriation and sec-
tion 12 of the Expropriation Act 63 of 1975. The court held that the Expropria-
tion Act does not contain anything that precludes reading the constitutional
standard into the Act. This judgment implies that even if a legislative provision
differs considerably from provisions of the Constitution, it can reasonably be in-
terpreted in conformity with the Constitution as long as it does not preclude the
21
application of constitutional standards.
________________________
Planning and Development Tribunal 2016 4 BCLR 469 (CC), 2016 3 SA 160 (CC) para 38; S v
Manamela 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC) para 57; Sing v S 2002 8 BCLR 793 (CC)
2002 4 SA 858 (CC) para 44. “Reading in” is discussed in ch 10 para 5.5 below.
19 Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International 2005 2 SA 46
(SCA) para 23; Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark
International 2005 8 BCLR 743 (CC), 2006 1 SA 144 (CC) paras 49–50.
20 Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2005 3 SA 589 (CC)
para 108.
21 Du Toit v Minister of Transport 2005 11 BCLR 1053 (CC), 2006 1 SA 297 (CC) paras 28, 33 and
34. The court conceded that this is not a satisfactory state of affairs. Although it would in view
of the supremacy of the Constitution not be unreasonable to expect all lawyers to read consti-
tutional standards into every single piece of legislation or common-law rule, it would have been
better if the Expropriation Act itself would have expressly contained the constitutional
The following are a few examples of the application of the rule by the Constitutional
Court:22
• The word “spouse” in legislation is not reasonably capable of being interpreted to include
23
partners in permanent same-sex life partnerships.
• Consumption charges for water and electricity “in connection with the property” cannot
24
reasonably be interpreted to read charges “due by the owner.”
• A duty to inform for the purposes of the right to fair procedure can reasonably be read
25
into legislation that does not expressly or implicitly exclude such a right.
• The phrase “[t]he Electoral Court has final jurisdiction in respect of all electoral disputes
and complaints about infringements of the Code, and no decision or order of the Elec-
toral Court is subject to appeal or review” in section 96(1) of the Electoral Act 73 of 1998
can reasonably be interpreted to mean that it does not apply to disputes or complaints
26
that concern a constitutional matter within the jurisdiction of the Constitutional Court.
2 Promoting the spirit, purport and objects of the Bill of Rights

through the interpretation of legislation when its constitutionality is
not investigated and the development of the common law and
customary law
2.1 The interpretation of legislation
Section 39(2) of the Constitution provides that when interpreting any legislation,
and when developing the common law or customary law, the spirit, purport and
objects of the Bill of Rights must be promoted. A court must interpret legislation to
promote the spirit, purport and objects of the Bill of Rights even where the parties
before the court do not request the court to do so.27 As explained in paragraph 1
above, the Constitutional Court uses this provision as the source of its application of
the rule that legislation must be interpreted to be consistent with the Constitution
when the constitutionality of legislation is investigated.28 In this paragraph we discuss
the application of section 39(2) to instances in which the constitutionality of a legal
rule is not investigated. Must this rule also be followed when the constitutionality of
the legislation is not at issue?
________________________
standards and the court recommended that “the provisions of the [Expropriation] Act be
brought in line with the Constitution” (para 36).
22 For more examples, see Rautenbach, IM “Introduction to the Bill of Rights” in LexisNexis Bill
of Rights Compendium (2018) [Issue 37] para 1A18, and the annual overviews of Constitutional
Court judgments on the Bill of Rights in 2010 TSAR 303–304, 2012 TSAR 305–306; 2016 TSAR
294–295.
23 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC),
2000 2 SA 1 (CC) para 23. For a summary of the judgments in this regard, see Satchwell v Presi-
dent of the RSA 2002 9 BCLR 986 (CC), 2002 6 SA 1 (CC) paras 9–16.
24 Mkontwana v Nelson Mandela Metropolitan Municipality 2005 2 BCLR 150 (CC), 2005 1 SA 530
(CC) paras 28–30.
25 Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2005 3 SA 589 (CC)
para 108.
26 African National Congress v Chief Electoral Officer of the Independent Electoral Commission 2009 10
BCLR 971 (CC), 2010 5 SA 487 (CC) para 8.
27 Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority 2010 10
BCLR 1139 (CC), 2015 6 SA 32 (CC) para 34; Phumelela Gaming and Leisure Ltd v Grundling
2006 8 BCLR 883 (CC) paras 26–27.
28 See S v Baloyi 2000 1 BCLR 86 (CC), 2000 2 SA 425 (CC) para 26; National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC), 2000 2 SA 1 (CC) paras 23 and
24.
Theoretically it seems as if section 39(2) also covers instances in which the
29
constitutionality of a legislative provision is not questioned. In this respect, the
effect of section 39(2) would be that if more than one reasonable meaning can be
attached to a legislative provision, all of which are constitutional, the meaning which
most effectively promotes the spirit, purport and objects of the Bill of Rights must be
30
followed. Although the Bill of Rights hardly played any role in interpreting the
legislation at issue, the Constitutional Court stated in Wary Holdings (Pty) Ltd v Stalwo
(Pty) Ltd:
“This Court has not yet been called upon to deal with the situation where two conflict-
ing interpretations of a statutory provision could both be said to promote the spirit,
purport and objects of the Bill of Rights and the decision to make is whether the one
interpretation is to be preferred above the other. It seems to me that it cannot be gain-
said that this Court is required to adopt the interpretation which better promotes the
31
spirit, purport and objects of the Bill of Rights.”
This means that one can raise an argument in court that a legislative provision can
be reasonably interpreted in two ways, both of which are constitutionally valid, but
one of them is “more” in line with the Constitution than the other and should
therefore followed. This application of section 39(2) to instances where the constitu-
tionally validity of alternatives for the limitation of rights is not considered, may be
questioned. In principle, a court may not substitute a legislative choice to limit a
right with its own choice when the legislature has chosen an alternative that falls
32
within a range of options which are all consistent with the Bill of Rights. When a
cout interferes in this way, it could be considered to be an classical example of a
violation of the separation of powers by the courts. The idea that a court must leave
a legislature who may limit rights a discretion to choose between constitutionally valid
options will be undermined if a court interferes with a constitutionally valid choice
and, in effect, invalidates it simply because the court considers its own option to
serve the spirit, purport and objects of the Bill of Rights better. A court of law
exposes itself unnecessarily to criticism that it interferes with “politics” when it
revises legislative and executive decisions which, according to the court’s own
findings, are not inconsistent with the Constitution.
2.2 The development of the common law and customary law

Section 39(2) provides that the spirit, purport and objects of the Bill of Rights must
be promoted when the common law or customary law is developed.33
In Carmichele v Minister of Safety and Security, the Constitutional Court held that,
where the common law “as it stands is deficient in promoting the section 39(2)
________________________
29 Fraser v Absa Bank Ltd 2007 3 BCLR 219 (CC), 2007 3 SA 484 (CC) para 47.
30 This is probably what the Constitutional Court had in mind when, in NEHAWU v University of
Cape Town 2003 2 BCLR 154 (CC), 2003 3 SA 1 (CC) para 15, it distinguished between the
constitutionality of a statute and “the constitutionality of its interpretation”. Normally under-
stood, the “constitutionality of its interpretation” would otherwise deal with its “constitutional-
ity” as such.
31 Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2008 11 BCLR 1123 (CC), 2009 (1) SA 337 (CC) para
107; Currie I and De Waal J The Bill of Rights Handbook (2013) 58.
32 See ch 18 para 2.3.2(e) below and S v Manamela 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC)
para 96; De Reuck v Director of Public Prosecutions (WLD) 2003 12 BCLR 1333 (CC), 2004 1 SA 406
(CC) paras 68–69 and 82.
33 There is no indication in the Bill of Rights that s 39(2) must only be applied for the purposes
of s 8(2) and (3) (see ch 16). However, see Amod v Multilateral Motor Vehicle Accident Fund 1997
12 BCLR 1716 (D) 1722H–J.
34
objectives”, a court must develop the common law. A court has no discretion not to
35
do so.
Section 173 of the Constitution provides that the Constitutional Court, the Su-
preme Court of Appeal and high courts have the inherent power to develop the
common law in the interests of justice. “Developing the common or customary law”
is a term of art describing the process through which courts determine the contents
of common-law or customary law rules. It includes the possibility that a court may
attach “new” meanings (that is, meanings which have not been attached before that
point in time) to common-law and customary law rules in the interests of justice.
The Constitutional Court held that the interests of justice in developing the com-
mon law and customary law in section 173, could involve more than compliance with
36
the Constitution; the question to be asked, said the court, is “whether these com-
mon law rules offend the normative structure of the Constitution and, if not, whether
37
there are wider interests of justice considerations that require their further development.”
Section 39(2) also applies to the development of customary law.
38
In Gumede v President of the RSA, the process was described as follows:
“Firstly, this process would ensure that customary law, like statutory law or the com-
mon law, is brought into harmony with our supreme law and its values, and brought in
line with international human rights standards. Secondly, the adaptation would salvage
and free customary law from its stunted and deprived past. And lastly, it would fulfil
and reaffirm the historically plural character of our legal system, which now sits under
the umbrella of one controlling law – the Constitution.”
In Shilubana v Mwamitwa the Constitutional Court considered the validity of the
appointment by a traditional authority of a woman as chief of the Valoyi community.
The court held that according to the existing customary law a woman could not be
appointed, neither did traditional institutions have the power to change the
customary law in this regard. However, the Constitutional Court developed the
customary law in this regard in order to empower traditional authorities to amend
39
customary law that is inconsistent with the Constitution.
Section 39(2) is often regarded as the main source of the so-called indirect
application of the Bill of Rights to the common law. This is a wrong approach.
40
Section 39(2) is not the main source and certainly not the only source. Section
8(1) regulates this matter. In terms of section 8(1), all common law must be
consistent with the Bill of Rights. The determination of such consistency re-quires
the full and direct application not only of the general objectives set out in section
39(2), but primarily of all the provisions of the Bill of Rights that regulate the
protection and limitation of the rights. This matter is discussed in chapter 16.
________________________
34 Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC), 2001 4 SA 938 (CC) paras
39–40. See also, Fourie v Minister of Home Affairs 2005 3 BCLR 241 (SCA) para 5.
35 Phumelela Gaming and Leisure Ltd v Gründling 2006 8 BCLR 883 (CC) para 27.
36 Mokone v Tassos Properties 2017 10 BCLR 1261 (CC), 2017 5 SA 456 (CC) para 41.
37 MEC for Health and Social Development, Gauteng v DZ 2017 12 BCLR 1528 (CC), 2018 1 SA 335
(CC) para 36. Emphasis added.
38 Gumede v President of the RSA 2009 3 BCLR 243 (CC), 2009 3 SA 152 (CC para 22; see also
Mabuza v Mbatha 2003 7 BCLR 743 (C), 2003 4 SA 218 (C) para 31.
39 Shilubana v Mwamitwa 2008 9 BCLR 914 (CC), 2009 2 SA 66 (CC) paras 71–75.
40 See eg Leinius B and Midgley JR “The impact of the Constitution on the law of delict: Carmich-
ele v Minister of Safety and Security” 2003 SALJ 19.
How does one determine whether the existing common law is deficient in promoting
the section 39(2) objectives?
The phrase used in the Carmichele case, “where the common law as it stands, is
deficient in promoting the section 39(2) objectives”,41 could refer to more than one
set of circumstances.
Firstly, it could refer to situations where an existing common-law rule is held to be inconsis-
42
tent with the Constitution. Such a finding in respect of inconsistency with the Bill of
Rights must be based on section 8(1) which provides that the Bill of Rights applies
to “all law” which includes the common law. After a conclusion has been reached
that the common-law rule is unconstitutional, a court may either invalidate the rule
43
without “developing” it, or it may develop the invalid rule by reformulating it in
44
order to render it valid. In the latter instance, the court’s “development of the
common law” would be similar to “reading in” to cure the invalidity of invalid statu-
45
tory provisions. The court approaches “reading in” in respect of statutory provi-
sions with great caution, because “a court must keep in mind . . . the separation of
powers and, flowing therefrom, the deference it owes to the legislature in devising a
remedy for a breach of the Constitution”; “reading in” may not interfere unduly with
46
existing legislation and may not result in “unsupportable budgetary intrusion”. It is
submitted that the same caution must be exercised when a court develops the com-
mon law to remedy unconstitutional deficiencies. Reference to the common law as
47
the courts’ law as if the courts are the highest legislatures in respect of the common
law, is not correct. Subject to judicial control over the constitutionality of their
legislation, legislatures have the final say over all law, including the common law.48 A
legislature’s failure to regulate a matter, which since time immemorial has been
covered by the common law, does not mean that the legislature has abandoned its
legislative powers in favour of the courts. It means that the legislature is satisfied
with the existing common law on the matter. Its failure to intervene could be as
much part of the legislative scheme of legislatures as any active legislative interven-
tion. Therefore, courts that invalidate a common-law rule must, like in the case of
invalid statutory law, develop a new rule only when it is necessary to do so in order to
49
avoid confusion and hardship.
Secondly, the phrase could refer to a situation in which the common-law rule as it stands is
not considered to be inconsistent with the Constitution but where it could be assigned a new
________________________
41 In Bogaards v S 2012 12 BCLR 1261 (CC) para 47 the court said ss 39(2) and 173 of the Consti-
tution oblige the courts to develop the common law “where it is inconsistent with the Constitu-
tion.”
42 Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC), 2001 4 SA 938 (CC) para 40.
43 Nothing in s 172(1) precludes a competent court from invalidating common-law rules without
developing it to cure the invalidity. See National Coalition for Gay and Lesbian Equality v Minister
of Home Affairs 2000 1 BCLR 39 (CC), 2000 2 SA 1 (CC).
44 In Thebus v S 2003 10 BCLR 1100 (CC), 2003 6 SA 505 (CC) paras 28 and 30, the court re-
ferred only to the development of an unconstitutional common-law rule and not to its invalida-
tion.
2000 2 SA 1 (CC) paras 66 and 75.
47 Thebus v S 2003 10 BCLR 1100 (CC), 2003 6 SA 505 (CC) para 31.
48 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs v Minister of Home Affairs
2000 1 BCLR 39 (CC), 2000 2 SA 1 (CC) para 75.
49 The suspension of the invalidation “for any period and on any conditions, to allow the compe-
tent authority to correct the defect” in terms of s 172(1)(b)(ii) of the Constitution must also be
considered.
meaning which would be more effective in promoting the spirit, purport and objects of the Bill of
50
Rights. This application of section 39(2) could turn out to be limited. The “spirit,
purport and objects of the Bill of Rights” do not only deal with the protection of the
right, but also with their limitation. The limitation of rights under limitation clauses
for the protection of common interests and the rights of others must also be taken
into account when section 39(2) is applied in the development of the common law
and not merely the spirit, purport and objects of the Bill of Rights.51 The application
of limitation clauses will almost always play a role when it is considered whether a
common-law rule that is consistent with the Constitution, can be improved through
development to bring it “more” in line with the Bill of Rights. A constitutionally valid
way of limiting a right falls within a range of permissible alternatives and, in princi-
ple, a court may not interfere with it.
________________________
50 Thebus v S 2003 10 BCLR 1100 (CC), 2003 6 SA 505 (CC) para 28.
51 Naude v Fraser 1998 8 BCLR 945 (SCA) 964F, 1998 4 SA 539 (SCA) 562G; Phumelela Gaming and
Leisure Ltd v Grundling 2006 BCLR 883 (CC) para 37: “It is not permissible for a litigant to sim-
ply carve out those provisions that are favourable to it in the application of section 39(2). The
interests of other holders must also be taken into account in the balancing exercise.”
Chapter 15
Protected persons and institutions
1 Introduction 271
2 Natural persons 271
3 Juristic persons 273
1 Introduction
During the first stage of a bill of rights inquiry it must be determined whether the
person or institution whose rights have allegedly been infringed is indeed protected
by the rights concerned.
The term “bearer of a right” is used to describe such a person or institution. The
position of natural persons and juristic persons are discussed separately.
2 Natural persons
In principle, all natural persons are protected by the Bill of Rights.
With a few exceptions, the rights in the Bill of Rights are guaranteed for “everyone”.
1
“Everyone” includes every citizen and every alien in the national territory.
According to the South African common law, a foetus is not a bearer of rights. Al-
though writers generally contend that the Bill of Rights does nothing to advance
2
debates on the legal status of a foetus in private law, it nevertheless has been consid-
ered necessary to decide whether a foetus has a constitutionally protected right to life
for the purposes of determining the constitutionality of measures concerning the
termination of pregnancy. In Christian Lawyers Association of SA v Minister of Health the
court held that a foetus is not a bearer of the right to life in the Bill of Rights.3 Al-
though this finding is in line with the common-law position and certain foreign
systems, it does not provide final answers to questions concerning the constitu-
tionality of all aspects of measures dealing with the termination of pregnancies and
the protection of the interests of the unborn. Although a foetus is not considered to
be the bearer of the right to life, the protection of certain developmental stages of
foetal life serves as a purpose under the general limitation clause in section 36 for
the limitation of various rights of the pregnant woman, for example her right to
make decisions concerning reproduction and to security in and control over her
4
body.
________________________
1 S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) para 76.
2 See eg Sinclair J in Van Wyk DH et al (eds) Rights and Constitutionalism. The New South African
Legal Order (1994) 502, 528ff.
3 Christian Lawyers Association of SA v Minister of Health 1998 11 BCLR 1434 (T), 1998 4 SA 1113 (T).
4 S 12(2)(a) and (b) of the Constitution. See Meyerson D “Abortion: the constitutional issues”
1999 SALJ 50; Pickles C “Feticide: Continuing the search for a unified approach to the un-
born” 2017 THRHR 44- 61; ch 20 para 2.2 below. The requirement in s 292(1)(e) of the Chil-
dren’s Act 38 of 2005 that a court must confirm a surrogate motherhood agreement before the
271
In particular instances, only certain natural persons may be the bearers of particular
rights.
Only citizens are bearers of rights in respect of political parties, political activities and
political choices; the right to vote; the right to free, fair and regular elections; the
right to stand for public office and, if elected, to hold office; the right to enter, to
remain in, and reside anywhere in, the Republic; the right to a passport; and the
5
right to choose a trade, occupation or profession freely. Foreigners are the bearers
6
of all the other rights.
In the South African Constitution, a number of important rights are guaranteed
7 8
only for children; workers and employers; persons belonging to a cultural, religious or lin-
9
guistic community; and detained, arrested and accused persons.10
When certain rights are guaranteed only for certain persons (for example, children)
those persons are obviously also the bearers of all other rights.
There is, for example, no room for arguments that because children’s rights are
guaranteed separately, every other right has to be considered separately to deter-
11
mine whether children can be bearers of the right. Unlike the position in respect
of juristic persons, there is no rule in the Constitution that the nature of a natural
person could be questioned in order to determine whether she or he is a bearer of a
right that protects “everybody” in the Constitution. Except when they are excluded
12
expressly from being bearers, children are the bearers of all rights in the Bill of
13
Rights and when, for example, their rights to political activity or freedom of expres-
sion are limited, the limitations must comply with the requirements of the general
and specific limitation clauses. In considering the validity of the limitations, the
________________________
artificial insemination of the surrogate mother protects the best interests of children yet to be
conceived. For discussion of this provision, see Louw A “Surrogacy in South Africa: Should we
reconsider the current approach” 2013 THRHR 564-588.
5 Ss 19, 20, 21(3) and (4) and 22.
6 S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) para 76; Kiliko v Minister of Home
Affairs 2007 4 BCLR 416 (C), 2006 4 SA 114 (C) para 28; Tettey v Minister of Home Affairs 1999 1
BCLR 68 (D) 79, 1999 3 SA 715 (D) 729. See in respect of the right to equality, Larbi-Odam v
Member of the Executive Council for Education (N-W Province) 1997 12 BCLR 1655 (CC), 1998 1 SA
745 (CC), and in respect of the so-called social and economic rights, Pieterse M “Foreigners
and socio-economic rights: legal entitlements or wishful thinking?” 2000 THRHR 51.
7 S 28.
8 S 23.
9 S 31.
10 S 35. According to separate opinions in Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR
1 (CC), 1996 1 SA 984 (CC) paras 41 and 206, persons interrogated in terms of s 417(2)(b) of
the Companies Act 61 of 1973 are not “accused persons” with rights in s 25(3) of the interim
Constitution that can be infringed or threatened for the purposes of complying with the locus
standi requirements of s 7(4). The majority of the court decided (paras 160 and 208) that
whenever a possibility exists that incriminating answers which the people are forced to give
could thereafter be used against them in a criminal trial, the right against self-incrimination in
s 25(3) is threatened. Naidenov v Minister of Home Affairs 1995 7 BCLR 891 (T) 900 held that the
rights of arrested persons in s 25(2) of the interim Constitution applied only to persons appre-
hended for the purposes of a criminal prosecution and not for the purposes of deportation.
11 This would imply that an “age of majority” would have to be determined for every right.
12 Eg, the rights of every adult citizen to vote and to stand for public office in s 19(3).
BCLR 1429 (CC), 2013 12 SA 1429 (CC) para 38; Bhe v Magistrate Kayelisha; Sibi v Sithole; SA
Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC), 2005 1 SA 580 (CC) para
52.
Chapter 15 Protected persons and institutions 273
immaturity of children will obviously be taken into account. The purpose to deal
with the immaturity of children in a just and equitable way, will in most instances be
an appropriate and legitimate purpose for the limitation of some of the rights of
children.
When a particular right does not protect certain persons, the persons concerned may
still exercise that right as an un-entrenched right or freedom in terms of ordinary
law.
For example, although aliens do not have the right “to remain, and to reside
14
anywhere in, the Republic”, or “to choose their trade, occupation or profession”,
they certainly have an interest in participating in these activities. Prior to the com-
mencement of a South African Bill of Rights, every individual had every conceivable
right or freedom to the extent that these rights and freedoms had not been limited
15
by ordinary law. This position remains unchanged in respect of those who are not
the bearers of particular rights entrenched in the Constitution. Section 39(3) of the
Constitution provides that the Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common law, customary law
or legislation, to the extent that they are consistent with the Bill of Rights. The rights
and freedoms recognised in section 39(3) are not entrenched. The limitation of
these rights and freedoms need not comply with the provisions of the limitation
16
clauses.
3 Juristic persons
Section 8(4) of the Constitution reads: “A juristic person is entitled to the rights in
the Bill of Rights to the extent required by the nature of the rights and the nature of
that juristic person.”17
This rule corresponds to the recognition of juristic persons as the bearers of rights
in other legal fields. It affirms that for the purposes of applying the Bill of Rights juristic
persons are entities, the existence and rights of which are not in all respects
identical to those of their members.
Section 8(4) of the Constitution identifies certain bearers of rights, it does not
protect the establishment, existence and functioning of juristic persons. Such pro-
tection is afforded by the right to freedom of association in section 18.
The Constitution does not define fixed categories of bearers of rights. It does not
provide that only natural persons and juristic persons are bearers of rights. The right
to freedom of association in section 18 has important implications in this regard. It
does not only protect the freedom of individuals to form and join associations and
to participate in the activities of associations. It also guarantees particular rights of
________________________
14 Ss 21(3) and 22.

15 See Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10
BCLR 1382 (CC), 1995 4 SA 631 (CC) para 35; Brewer-Carías AR Judicial Review in Comparative
Law (1989) 51; Hogg PW Constitutional Law of Canada (1999) 620.
16 See ch 16 para 6 below. S 39(2) – when interpreting any legislation the spirit, purport and
objects of the Bill of Rights must be promoted – may possibly influence the interpretation of
provisions that limit these rights. See ch 14 in respect of s 39(2).
17 S 8(4). Regarding foreign systems, see Stern K III/1 Das Staatsrecht der Bundesrepublik Deutschland
(1988) 1116 ff ; Currie DP The Constitution of the Federal Republic of Germany (1994) 12–13; Hogg
PW Constitutional Law of Canada (1999) 680.
associations as such, regardless of whether they are formally recognised as juristic
18
persons.
The nature of certain rights is such that juristic persons cannot exercise them.
Examples of these rights are the rights to human dignity, life and freedom and
19
security of the person. On the other hand, a juristic person may enjoy the
20
protection of, for example, aspects of the right to equality, and the rights to
privacy, property, expression, occupational freedom, fair labour practices25 and
21 22 23 24
access to the courts and fair trials.26 Certain rights in the Bill of Rights, for example,
the rights of trade unions and employers’ organisations, apply by definition to
juristic persons.27
In principle, the nature of private law juristic persons (for example, companies) is such
that they are capable of being the bearers of certain rights in the Bill of Rights.
The fact that a juristic person cannot “personally” perform the conduct which is
protected by a particular right – for example, to appear in court or express opinions –
but does so through natural persons acting as its organs, does not mean that such
juristic person cannot be the bearer of that particular right. Juristic persons are
“artificial” entities and can act only through natural persons who act in their stead.
Neither is the fact that the infringement of a juristic person’s particular right often
amounts to an infringement of the same right of its members determinative. It is in
the nature of juristic persons that the collective interests they promote and the col-
lective action they perform are often not the same as those of a particular member
or a number of them, that is the main source of disputes between a juristic person
and its members. It is the interests of the corporate institution as such that are at
stake.
In principle, the nature of most public law juristic persons (for example, particular
government institutions) is such that they cannot be the bearers of rights.
28
In South African law, the state itself is regarded as a juristic person, and various
other types of public juristic persons are recognised, such as city councils,
________________________
18 See s 23(4) in respect of trade unions and employers’ organisations, and on the German position,
Stern K III/1 Das Staatsrecht der Bundesrepublik Deutschland (1988) 1131–1134.
19 Ss 10, 11 and 12.
20 S 9. AK Entertainment CC v Minister of Safety and Security 1994 4 BCLR 31 (E), 1995 1 SA 783 (E)
790A–D. In Bel Porto School Governing Body v Premier of the Western Cape 2002 9 BCLR 891 (CC),
2002 3 SA 265 (CC) para 35, it was investigated whether the rights to equality and to adminis-
trative justice of the governing bodies of certain schools were infringed.
21 S 14. Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2000
10 BCLR 1079 (CC), 2001 1 SA 545 (CC) para 18.
22 S 25. First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702 (CC),
2002 4 SA 768 (CC) paras 43–45.
23 S 16. Government of the RSA v Sunday Times Newspaper 1995 2 BCLR 182 (T), 1995 2 SA 221 (T),
concerning freedom of expression.
24 S 22(1). Ynuico Ltd v Minister of Trade and Industry 1995 11 BCLR 1453 (T).
25 S 23(1). NEHAWU v University of Cape Town 2003 2 BCLR 154 (CC), 2003 3 SA (CC) 1 paras 37–
39.
26 S 34. Matters concerning the right to legal representation of juristic persons were considered
in Hallowes v The Yacht “Sweet Waters” 1995 2 BCLR 172 (D), 1995 2 SA 270 (D) and in Mital
Steel SA Ltd t/a Vereeniging Steel v Pipechem CC 2008 1 SA 640 (C) paras 24–28.
27 S 23(4).
28 See ch 7 para 2.
Chapter 15 Protected persons and institutions 275
universities and state enterprises that have been accorded juristic personality by an
29
act of parliament.
To the extent that public juristic persons exercise government authority, they cannot
be bearers of rights in the Bill of Rights.30 A bill of rights provides protection against
the arbitrary exercise of power by organs of state, and, in principle, public juristic
bodies cannot be the bearers of rights that they can enforce against the state.31
Relations amongst state departments and administrations at all levels of government
vis-à-vis interests or entitlements that overlap with interests protected in the Bill of
Rights, eg, property, are regulated by the constitutional provisions dealing with their
powers, functions and functioning and not by the Bill of Rights. However, there may
be exceptions. Certain public juristic persons may, in certain instances, be the
bearers of rights enforceable against the state, such as universities which are bearers
of, for example, the right to academic freedom and freedom of scientific research,
32
even though, as public juristic persons, they are bound by the Bill of Rights. In
Germany, it is also accepted that public broadcasting institutions supported by the
state have a right to freedom of expression against the state and that all public
juristic persons are protected by procedural guarantees (for instance, the right to
33 34
free access to the courts). These exceptions should be recognised in South Africa.
________________________
29 Wiechers M Administrative Law (1985) 69; Baxter L Administrative Law (1989) 94.
30 See in respect of the right to privacy, Neethling J “Die reg op privaatheid en die staat as
regspersoon” 2011 THRHR 456–463.
31 See in respect of Germany, Badura P Staatsrecht (1986) 72; Stern K III/1 Das Staatsrecht der
Bundesrepublik Deutschland (1988) 1149; Jarass HD and Pieroth P Grundgesetz für die Bundesrepub-
lik Deutschland (2016) 492.
32 S 16(1)(d).
33 Badura P Staatsrecht (1986) 72–73.
34 The possibility was raised in Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds
1997 8 BCLR 1066 (T) 1074F–1075H. The court referred also to the possibility that a public
law juristic person could be the bearer of the right to approach a court pro bono on behalf of
another person in terms of s 38. In Premier, Mpumalanga v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal 1999 2 BCLR 151 (CC), 1999 2 SA 91 (CC) the former
state-aided, so-called Model C schools were considered to be bearers of the right to just admin-
istrative action.
Chapter 16
Duties and protected conduct and interests
1 Introduction 277
2 The different ways in which duties, and protected conduct and interests are
described in the Bill of Rights 279
3 Protected conduct and interests and the limitation of rights 281
4 The right not to act 282
5 Waiver of rights 283
6 Conduct and interests not protected in the Bill of Rights 287
1 Introduction
During the first stage of a bill of rights inquiry it must be determined whether duties
imposed by a right have been breached. Whereas the duties are described in the
formulation of certain rights, other rights describe only protected conduct and
interests.
Despite the fact that certain rights define only the protected conduct and interests,
whereas certain others define only the duties imposed by those rights (see para-
graph 2 below), both duties and protected conduct and interests must be identified in every
instance. The identification of duties and the identification of protected conduct and
interests are not alternative ways to determine constitutional unlawfulness.
Constitutional unlawfulness covers both aspects, it consists of non-compliance with
constitutional duties not to violate the conduct and interests protected in the Bill of
Rigths. There are general duties which must be complied with in the case of the rights that refer
only to protected conduct and interests, and there are conduct and interests that are protected by
rights that refer only to duties. In respect of the rights that refer only to duties, the
effect of non-compliance with the duties on the unarticulated conduct and interests
which the rights protect, must be identified in order to apply the general limitation
clause properly.
All the rights in the Bill of Rights protect certain conduct and interests of the
bearers of the rights.
The Bill of Rights protects, for example, bearers’ rights to human dignity, life, per-
sonal freedom and security, privacy and religious convictions and activities. Unlike
the term “rights”, the conduct and interests protected by the Bill of Rights are not
abstract and artificial legal and political concepts. They do not even owe their
existence to public discourse, consensus and recognition. They are natural features
and interests of human beings that precede the law and exist outside and beyond
law. The description of these interests and conduct in the Bill of Rights does not
“create” them. The Bill of Rights defines them only for the purposes of the special
protection afforded them by the entrenched and justiciable Bill of Rights.
All the rights in the Bill of Rights impose legal duties on those who are bound by the
rights.
The source of these duties is the Constitution itself. The Constitutional text define
what the duties are of those bound by the rights. Whether ordinary legislation which
277
authorise persons and institutions to act in a particular way recognise expressly or by
implication the constitutional duties in respect of rights is not relevant. The
interpretation of the authorising legislation is not relevant to the determination of
1
the existence of a constitutional duty. To the extent that authorising legislation
abolishes or diminishes a duty in terms of the Bill of Rights, it limits the right
concerned. Such limitation must then comply with the requirements for the
limitation of that right.
Section 7(2) describes the general duties of the state in respect of rights. The state
has the general duty to respect, protect, promote and fulfil the rights.
• “To respect rights” means not to infringe them, that is, the rights may be limited
only in accordance with the provisions of limitation clauses.2
• “To protect rights” means to ensure that they are not infringed by either the state
or by private individuals.3
• “To promote and fulfil rights” means to facilitate the exercise of rights by provid-
ing the means for their exercise – for example, the rights to vote, to a passport, to
counsel at the state’s expense and access to housing, health care, food, water, so-
4
cial security and education.
The implications of these general duties for different organs of state may differ and
the binding effect of the Bill of Rights in respect of legislatures, the executive and
the courts is discussed in chapter 17 paragraphs 4, 5 and 6.
The duties of private persons are not described expressly but follow from the fact
that such individuals are bound by the provisions of the Bill of Rights in terms of
section 8(2) of the Constitution. The binding effect of the Bill of Rights in respect of
private persons and institutions is discussed in chapter 17 paragraph 7.
The formulation of certain rights refers expressly to certain duties imposed by
those rights. As is explained in paragraph 2, in certain instances the duties described
in respect of a particular right are imposed within the framework of the general
duties in section 7(2), whereas in other instances they are the only duties imposed
under a specific right.
________________________
1 In Rail Commuters Action Group v Transnet t/a Metrorail 2005 4 BCLR 301 (CC), 2005 2 SA 359
(CC) para 84, the court based its declaratory order that Transnet and Metrorail have a duty to
protect rail commuters’ rights to human dignity, life and personal freedom and security on its
interpretation, in conformity with the Constitution, of the phrase “in the public interest” in
provisions of the Legal Succession to the South African Transport Services Act 9 of 1989. The
court could have reached the same conclusion by referring to s 7(2) which describes a duty to
“protect” rights, which duty exists always, not only “at times”, in respect of non-social rights as
implied by the court in para 70.
2 This category of duties covers the fourth level of obligation “to act rationally and in good faith
. . . and to justify its failure to carry out its obligations” identified by O’Regan K “Introducing
socio-economic rights” 1999 1(4) ESR Review 2.
3 See Carpenter G “The right to physical safety as a constitutionally protected human right” in
Carpenter (ed) Suprema Lex: Essays on the Constitution presented to Marinus Wiechers (1998) 139
140. The duty of the state to ensure that private individuals do not infringe other such indi-
viduals’ constitutional rights does not overlap with the duty of private individuals in s 8(2) not to
infringe rights as stated by O’Regan K “Introducing socio-economic rights” 1999 1(4) ESR Re-
view 2.
4 For a discussion of these duties, see Dafel M “The negative obligation of the housing right: an
analysis of the duties to respect and protect” 2013 SAJHR 591, 596-599. S 35(2) of the Swiss
Constitution provides that those who conduct state functions are bound by the Bill of Rights
and have a duty to contribute towards the realisation of the right. See Häner I “Grundrechts-
geltung bei der Wahrnehmung staatlicher Aufgabe durch Private” 2002 Aktuelle Juristische Praxis
1144–1153.
Chapter 16 Duties and protected conduct and interests 279
2 The different ways in which duties, and conduct and interests are
described in the Bill of Rights
The Bill of Rights describes the conduct and interests protected by specific rights
and the duties of those bound by the rights in the following ways:
(a) Certain rights in the Bill of Rights describe only the conduct or interests that are
protected, for example, life, inherent dignity, expression, property, to assemble and
demonstrate peacefully and unarmed, to associate, and to make political choices.
Although the formulation of these rights does not refer to duties, the general duties
as described in paragraph 1 apply.
In one instance, the provision protecting a particular right expressly excludes cer-
tain conduct from the protective ambit of the right. Section 16(2) of the Constitution
provides that the right to freedom of expression guaranteed in section 16(1) does
not include the following: propaganda for war; incitement of imminent violence; or
advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm. The exclusion as such does not prohibit the defined
forms of expression. It simply means that limitations of the excluded forms of expres-
sion need not comply with the requirements of the general limitation clause, they
are not constitutionally protected. This further means that a limitation which ex-
tends beyond the scope of the exclusions described in section 16(2) must comply
5
with the general limitation clause.
(b) Certain rights describe both the protected conduct and interests and specific duties of
those bound by the rights. In this way, the constitution-makers wanted to ensure that
interpreters include the particular forms of duty as part of the general duty de-
scribed in section 7(2). In these instances, the duties of those bound by the rights
consist of the general duties as described in (a) above, and the duties described
expressly.
The following are examples: the right to personal freedom and security in section 12
which includes not to be deprived of freedom arbitrarily and without just cause, not to
be detained without trial, to be free from all forms of public and private violence, not
to be tortured in any way, not to be treated or punished in a cruel, inhuman or de-
grading way, and not to be subject to medical or scientific experiments without their
informed consent; the right to privacy in section 14 which includes not to have the per-
son or home searched, property searched, possessions seized, or the privacy of their
communications infringed.
(c) Certain rights describe only the duties of those bound by the rights – what they must
do, or what they may not do. The rights concerned are infringed (de facto limited)
when these duties are not observed. Yet, even in these instances, it is important to
determine what is being protected, particularly for the purposes of identifying the
nature of the right and the extent of the limitation in applying the general limita-
tion clause in section 36 or a specific limitation provision that pertains only to that
right.6
________________________
5 Islamic Unity Convention v Independent Broadcasting Authority 2002 5 BCLR 433 (CC), 2002 4 SA
294 (CC) paras 33–34.
6 Eg, in S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) para 35: “Whether one speaks
of ‘cruel and unusual punishment’ as in the Eight Amendment of the United States Constitu-
tion and in art 12 of the Canadian Charter, or ‘inhuman or degrading punishment’ as in the
European Convention and the Constitution of Zimbabwe, or ‘cruel, inhuman or degrading
punishment’ as in the Universal Declaration of Human Rights, the [International Covenant on
Civil and Political Rights] and the Constitution of Namibia, the common thread running
7
Examples are: the rights to equality; not to be detained without trial, not to be tor-
tured in any way, and not to be treated or punished in a cruel, inhuman or degrading
8 9 10
way; to just administrative action, and to various criminal procedural guarantees.
With few exceptions, all rights in the South African Bill of Rights are formulated
positively: “Everyone has the right to”. Exceptions are, for example, section 13 (“No
one may be subjected to slavery, servitude or forced labour”), section 20 (“No citizen
may be deprived of citizenship”) and section 25(1) (“No one may be deprived of
property”). In principle, no legal consequences need to attach to whether a right is
formulated positively or negatively.11
12
Several provisions in the Bill of Rights protect collective action and collective interests.
The most important example is the right to freedom of association which protects
the right of individuals to form associations and join them, and affords associations
as such the right to freely determine and promote their goals.13 An association acting
in the interests of its members may also approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened.14 Persons belonging to a
cultural, religious or linguistic community have the right along with other members
of that community, to enjoy their culture, practise their religion and use their lan-
guage, and to form, join and maintain such associations.15 The express recognition
of juristic persons as bearers of rights provides another example.16
The protected conduct and interests and the duties are usually described in broad
and ordinary phrases. But, as in the case of all other legal rules, the meanings are
not always self-evident. They have to be determined by employing all the sources of
17
interpretation.
Sometimes a distinction is drawn between so-called unqualified rights and rights with
internal modifiers. In unqualified rights the duties or protected conduct and interests
are described in short single-verb sentences, for example, everyone has the right to
life. Rights with internal modifiers contain more information than the unqualified
18
rights on the duties and protected conduct and interests. These distinctions serve no
practical purpose. The adjective “unqualified” is, in any case, an unfortunate descrip-
tion. It creates the impression that a right may not be limited, which is, in principle,
not true of any right in the South African Bill of Rights.
________________________
through the assessment of each phrase is the identification and acknowledgement of society’s
concept of decency and human dignity” (italics added).
7 S 9(3) and (4).
8 S 12(1)(b), (d) and (e).
9 S 33.
10 S 35.
11 In In re Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744
(CC) para 2 the court held with regard to s 25 of the Constitution of the Republic of South Af-
rica Act of 1996: “The provision contained in the New Text, which is a negative formulation,
appears to be widely accepted as an appropriate formulation of the right to property. . . . We
cannot uphold the argument that, because the formulation adopted is expressed in a negative
and not positive form and because it does not contain an express recognition of the right to
acquire and dispose of property, it fails to meet the prescription of Constitutional Principle II.”
12 See Certification of the Amended Text of the Constitution of the RSA, 1996 1997 1 BCLR 1 (CC), 1997
2 SA 97 (CC) para 26.
13 S 18.
14 S 38(e).
15 S 31(1).
16 S 8(4). See ch 15 para 3.
17 See ch 3 para 2.3.1 on purposive interpretation.
18 See eg, Woolman S and Botha H “Limitations” in Woolman et al Constitutional Law of South
Africa (1998) para 34.4 who state: “Internal modifiers are, in short, words or phrases that serve
to determine, with greater specifity, the content of the right in question.”
3 Protected conduct and interests and the limitation of rights

The definition of the conduct and interests protected by a right is sometimes refer-
red to as a particular kind of limitation of rights. This is a confusing approach.19
The expressions that constitution-makers use to describe what they intend to
protect, undoubtedly describe “boundaries” or “limits”, but these are limits that can
be distinguished clearly from the justifiability of incursions into the predefined boun-
20
daries in terms of limitation clauses. In the last instance, we deal with the
“limitation” of rights after the commencement of the Bill of Rights and therefore
with the application of limitation clauses. In De Reuck v Director of Public Prosecutions
(WLD), the Constitutional Court rejected the approach of limiting the right to
freedom of expression by a restrictive interpretation of the conduct and interests
protected by the right.21 The approach to read justification considerations into the
definitions of the protected conduct and interests of rights originates mainly form
incautious reliance on foreign precedents from systems without expressly articulated
limitation clauses or from systems in which the role of limitation clauses has been
poorly developed.
22
Some proponents of the purposive approach to the interpretation of constitutions,
under influence of American law (which does not have a general limitation clause)
and Canadian law (which has a general limitation clause, but applies it somewhat re-
strictively under American influence), argue that the conduct and interests protected
by a right must as a matter of interpretive policy be interpreted narrowly so as to ex-
clude during the first stage of the investigation “conduct not worthy of constitutional
protection”
23
in order to limit the instances in which the general limitation clause is ap-
plied. They argue that the Constitution was not meant to protect 24
behaviour which
does not conform to the values that underlie the Constitution; that an approach to
limit the protective ambit of rights, will lead to fewer infringements
25
of rights being
identified by the courts and thus to less judicial review; and that the strictness with
which the general limitation26 clause is applied will be diluted if the courts have to apply
it to too many instances. For the following reasons, these arguments are not
________________________
19 See eg, Blaauw-Wolf L and Wolf J “A comparison between German and South African limitation
provisions” 1996 SALJ 279–295; Van der Vyver JD “Limitation provisions of the Bophuthatswana
Bill of Rights” 1994 THRHR 58–61 who uses the classifications based upon the text of the Euro-
pean Convention. See the critical comments of Van Dijk P and Van Hoof GHJ Theory and Practice
of the European Convention on Human Rights (1990) 575–578 in respect of the so-called “doctrine of
inherent limitations”.
20 Van der Schyff G Limitation of Rights (2005) 29.
21 2003 12 BCLR 1333 (CC), 2004 1 SA 406 (CC) paras 48, 50.
22 See ch 3 para 2.3.1.
23 See Sachs J in Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC)
paras 252, 254; Ackermann J in Bernstein v Bester NO 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC)
paras 53, 79; Sachs, O’Regan and Ackermann JJ in Prinsloo v Van der Linde 1997 6 BCLR 759 (CC),
1997 3 SA 1012 (CC) para 17. For a better approach see Ackermann J in Ferreira v Levin NO;
Vryenhoek v Powell NO (supra) paras 81, 82 and Mokgoro J in Case v Minister of Safety and Security;
Curtis v Minister of Safety and Security 1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC) paras 21, 23.
24 Woolman S and Botha H “Limitations” in Woolman et al Constitutional Law of South Africa
(1998) para 34(3)(a).
25 Hogg P Constitutional Law of Canada (1999) 719 refers to stemming “the wasteful floods of
litigation”; Sachs J in Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA
984 (CC) para 252 says that a court should not risk “dispersing energies, losing its sharp critical
gaze . . . by being drawn into testing the reasonableness or necessity for each and every piece of
regulation undertaken by the State”. See also Prinsloo v Van der Linde 1997 6 BCLR 759 (CC),
1997 3 SA 1012 (CC) para 17.
26 Woolman S and Botha H “Limitations” in Woolman et al Constitutional Law of South Africa
(1998) para 34.4(a).
convincing: (a) The Bill of Rights as a whole, including the general limitation clause, de-
termines when conduct and interests are “worthy of constitutional protection”. (b) A
value-based approach does not necessarily imply that the protective ambit of a right 27
must be restricted – a broad interpretation may be required in particular instances.
(c) Knowledgeable litigants know that the outcome of their applications is not deter-
mined only by proof of the factual limitation of a right, but also by the application of
limitation clauses, and that they waste time and money with applications in respect of
factual limitations that obviously do not comply with the requirements for limitation. 28
(d) The purposive approach has apparently been developed in Canada initially to
enable the courts to maintain a stringent single standard29 of justification for the limita-
tion of all rights under the general limitation clause. However, the South African
general limitation clause has been formulated
30
expressly to facilitate the development
of different standards of justification. (e) In following this approach, the guidelines
which the courts apply to limit the protective ambit of rights are the31
same as the factors
which must be taken into account in applying limitation clauses. Contrary to the ex-
press provisions of the
32
Constitution in sections 7(3) and 36, the limitation clauses thus
become redundant, and the unjust result ensues that the onus of proving facts relating
to the limitation
33
of rights rests with complainants and not with those who wish to justify
the limitation.
4 The right not to act

The right to act in a particular way includes the right not to act.
The right to assemble, for example, includes the right to decide not to attend any or
any particular gathering; freedom of expression includes the right to remain silent;
and to the extent that the right of everyone “to control over their body” could be
________________________
27 See S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 325 and Soobramoney v
Minister of Health, KwaZulu-Natal 1997 12 BCLR 1696 (CC), 1998 1 SA 765 (CC) para 17.
28 Hogg P Constitutional Law of Canada (1999) 665.
29 According to Hogg P Constitutional Law of Canada (1999) 665, the single stringent standard
could become diluted if it were to be applied to conduct not “worthy of constitutional protec-
tion”, eg, in respect of freedom of speech, to soliciting for prostitution, hate propaganda, ob-
scenity, defamation and nude dancing.
30 See ch 18 para 2.3.2.
31 According to Sachs J in Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1
SA 984 (CC) para 254 n 16 only “real and substantial” infringements of rights should be sub-
jected to limitation clause scrutiny. A “real and substantial” test deals with the nature and effect
of the limitation (and not with the description of protected conduct and interests) which is a
limitations consideration in terms of s 36(1). In paras 258–259 he uses typical limitation con-
siderations in applying the “real and substantial” criterion. According to Ackermann J in Bern-
stein v Bester NO 1996 4 BCLR 449, 1996 2 SA 751 (CC) para 79 “the content of the right is
crystallized by mutual limitation . . . by the rights of the community as a whole”. However, the
interests of the community as a whole are a purpose for limiting a right in terms of s 36(1). Ac-
cording to Prinsloo v Van der Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC) para 26 a ra-
tional relationship between a differentiation and the purpose of the differentiation must exist
before the general limitation clause can be applied to the right to equality. The relation be-
tween a limitation and its purpose is a limitation consideration in terms of s 36(1)(d). See also
New National Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191
(CC) paras 25–36 and 116–128 irrationality, non-arbitrariness and reasonableness as part of
the definition of the right to vote.
32 See the conclusion of O’Regan J in New National Party of South Africa v Government of the RSA
1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) para 160: “Given the definition of the right (to
vote) which I propose and have applied (the use of the concept ‘reasonableness’ as a defining
characteristic at the threshold level), the exercise under section 36 in this case is similar to the
exercise carried out to determine whether the challenged provisions were reasonable. . . . The
effect of it is that it is not necessary to undertake a full and separate limitations analysis.”
33 This implication is considered to be an argument in favour of limiting rights “by definition”.
argued to include the right of a pregnant woman to decide to have the pregnancy
terminated, it includes the right not to have it terminated.
This so-called negative dimension of the right to conduct oneself or to promote
certain interests in a particular way highlights the fact that protection afforded to
particular “conduct and interests” by the Bill of Rights actually amounts to protect-
ing the freedom of choice of the bearers of the rights in respect of the exact way in
which the conduct is to be executed or the interests are to be promoted.
Restrictions of the freedom not to act must comply with the requirements of limi-
tation clauses. Example: Section 23(6) provides that to the extent that national
legislation which recognises union security arrangements in collective agreements,
limits a right in the Bill of Rights (for example, the right of workers not to join a
trade union in section 23(2)(a)), the limitation must comply with the general limita-
tion clause.
As a normal incidence of the right to act in a particular way or to promote a par-
ticular interest, a “unilateral” decision not to act does not amount to a binding
undertaking not to exercise the right – questions concerning the permissibility and
enforceability of the waiver of constitutional rights, therefore, do not arise in these
34
instances. An “undertaking” not to exercise a right, which may be revoked when-
ever the bearer of the right wishes to do so, does not constitute a waiver.35
In Lufuno Mphaphule and Associates (Pty) Ltd v Andrews, the Constitutional Court held
that the right to fair civil trials in section 34 of the Constitution cannot be applied di-
rectly to private arbitration and said the following in respect of not exercising a right
and waiver of the right in arbitration arrangements:
“If we understand section 34 not to be directly applicable to private arbitration,
the effect of [persons] choosing private arbitration for the resolution of a dispute
is not that they have waived their rights under section 34. They have instead cho-
36
sen not to exercise their right in section 34.”
This is a confusing statement. It seems as if the court argues in the first part of the
statement that one cannot waive a right which applies only indirectly, apparently be-
cause you do not have it when it applies indirectly, but in the second part it assumes
that one can decide not to exercise a right, notwithstanding that it is assumed in the
first part that you do not have the right. It is not possible that one could not have a
right for the purpose of not waiving it, but could have it for the purpose of choosing
unilaterally not to exercise it.
5 Waiver of rights
The bearer of a right may waive the right when he or she agrees with somebody else
not to exercise the right, or to exercise it only in a particular way. Such an
undertaking must comply with the requirements for the limitation of rights by
agreement.
In this paragraph, “waiver” is used to refer to a binding undertaking either not to
exercise a right or to exercise it in a particular way.
Is it legally possible to waive a right that is guaranteed in the Bill of Rights? Or put
differently: is it legally permissible for the bearer of a right to limit the conduct and
________________________
34 See with regard to Germany, Robbers G “Der Grundrechtsverzicht” 1985 Juristische Schulung
926.
35 S v Shaba 1998 2 BCLR 220 (T) 222–223.
36 Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews 2009 6 BCLR 527 (CC), 2009 4 SA 529 (CC)
para 216.
interests protected by a right or release those bound by a right from duties imposed
by a right by entering voluntarily into an agreement not to exercise the right or to
37
exercise it only in a particular way? These questions are often raised in cases where
the state provides services or benefits on condition that certain rights are not to be
38
exercised or exercised in a particular way. Waiver in this sense, relates mainly to the
application of the Bill of Rights to the law of contract and, more particularly, to the
permissibility of particular contractual clauses. Contracts are instruments by means
of which people bind themselves to exercise a right in a particular way or not to
39
exercise it at all.
All waivers must be made voluntarily and the person waiving a right must be fully
informed about the implications of the waiver.40 Since waiver is never to be pre-
41
sumed, all facts in this regard must be proved by the party who relies on waiver.
In Gundwana v Steko Development CC, the Constitutional Court reacted as follows to an
argument that mortgagors when entering into a mortgage loan agreement willingly
42
accept the risk of losing their secured property in execution:
“It is true that a mortgagor willingly provides her immovable property as security for
the loan she obtains from the mortgagee and that she thereby accepts that the prop-
erty must be executed upon in order to obtain satisfaction of the debt. But does that
particular willingness imply that she accepts that:
(a) the mortgage debt may be enforced without court sanction;
(b) she has waived her right to have access to adequate housing or eviction only under
court sanction under section[s] 26(1) and (3); and
(c) the mortgagee is entitled to enforce performance, in the form of execution, even
when that enforcement is done in bad faith?
I think not.”
The state by setting certain conditions before it provides its services or handouts,
may induce (or even pressurise) bearers of rights to exercise their rights in a
particular (positive or negative) way. This is a factor that must be taken into account
when the “voluntariness” of a waiver is considered. In private relations, the nature of
________________________
37 For an overview of the waiver of human rights within the framework of the European Human
Rights Convention, see De Schutter O “Waiver of rights and state paternalism under the Euro-
pean Convention on Human Rights” 2000 Northern Ireland Legal Quarterly 481–508.
38 Eg appointment in the civil service on condition that no political statements may be made or
that the political policies of the government will be supported (Elrod v Burns (1976) 427 US
347; Pickering v Board of Education (1968) 391 US 563); unemployment benefits on condition
that recipients must work on their religious days of rest (Hobbie v Unemployment Appeals Commis-
sion (1987) 480 US 136; Thomas v Review Board of the Industrial Unemployment Security Division
(1981) 450 US 707; Sherbert v Verner (1963) 374 US 398); training at a college of education on
condition that female students will not get pregnant during the academic year (Mfolo v Minister
of Education, Bophuthatswana 1992 3 SA 181 (B)); consent to the use of lie detector tests (BVer-
fGE, 1982 Neue Juristiche Wochenschrift 1856); waiving by a tenderer of the right to be furnished
with reasons for an administrative action by an organ of state (Goodman Bros (Pty) Ltd v Transnet
Ltd 1998 8 BCLR 1024 (W) 1033, 1998 4 SA 989 (W)); the limitation of the right to freedom of
trade, occupation, and profession by contracts in restraint of trade (Reddy v Siemens Telecommu-
nications (Pty) Ltd 2007 2 SA 486 (SCA) para 12; Coetzee v Comotis 2001 1 SA 1254 (C) 1273; Dick-
inson Holdings Group (Pty) Ltd v Du Plessis 2007 6 BCLR 671 (D) 682).
39 See Cockrell A “Substance and form in the South African law of contract” 1992 SALJ 47;
Eiselen R “Kontrakteervryheid, kontraktuele geregtigheid en die ekonomiese liberalisme” 1989
THRHR 522; Martinek M “Contract law theory in the social welfare state of Germany – devel-
opments and dangers” 2007 TSAR 1.
40 Mohamed v President of the RSA 2001 7 BCLR 685 (CC), 2001 3 SA 893 (CC) paras 62–67.
41 Abdi v Minister of Home Affairs 2011 3 SA 37 (SCA) para 32.
42 2011 8 BCLR 792 (CC), 2011 3 SA 608 para 44.
the relationship between the party waiving a right and the party that benefits from
the waiver may also be a strong indication of whether the waiver was voluntary.
However, the nature of the relationship is not the only factor to take into account.
The inequality of the parties does not always imply that the weaker party did not
agree voluntarily to the limitation of her or his rights.
Even when the requirement that a waiver must be informed and voluntary has
been complied with, a waiver may still be impermissible. How does one determine
whether an informed and voluntary waiver is permissible? Because the persons
concerned decide that it will be to their benefit to comply with the restrictive condi-
tions, these cases are often not regarded as instances in which rights have been
43
limited. This is an incorrect approach and it probably accounts for the fact that
many efforts to develop sui generis rules to apply to such cases have not been success-
ful. An enforceable waiver entails that a bearer of a right is precluded from conduct
which forms part of the protective ambit of that right. This amounts to a de facto
limitation of rights. As such, its constitutionality has to be determined by applying
44
the criteria contained in the limitation clauses of the Bill of Rights. In Transnet v
Goodman Brothers (Pty) Ltd, the Supreme Court of Appeal correctly stated:45
“[T]he correct approach to the question of waiver of fundamental rights is to adhere
strictly to the provisions of section 36(1) of the Constitution. A waiver of a right is a
limitation thereof. One must be careful not to allow all forms of waiver, estoppel, ac-
quiescence, etc to undermine the fundamental rights guaranteed in the Bill of Rights.
In my view, a strict interpretation of section 36(1) is indicated.”
The weighing of interests and rights in the context of the limitation of rights in
46
contractual clauses must be considered within the framework of the application of
provisions of the Bill of Rights to private persons in terms of section 8(2) and (3) of
the Constitution. However, in various instances, the courts did not apply the general
limitation clause in this field. In Barkhuizen v Napier, the Constitutional Court held
that it could not apply section 36 to contractual clauses that limit rights because the
contract is not a “law of general application” to which section 36 can be applied. The
________________________
43 See In re KwaZulu-Natal Amakhosi & Iziphakanyiswa Amendment Bill of 1995; In re Payment of

Salaries, Allowances & other Privileges to the Ingonyama Bill of 1995 1996 7 BCLR 903 (CC), 1996 4
SA 653 (CC) para 45. In Patcor Quarries v Issroff 1998 4 BCLR 467 (SED) 476, the court held
that no reasonable prospect existed that the Constitutional Court would invalidate s 28 of the
Arbitration Act 42 of 1965 (an arbitration award shall be final and binding unless the arbitra-
tion agreement provides otherwise) as being in conflict with the right to access to a court, be-
cause the parties waive their rights in this regard by agreement.
44 Because the matters to be taken into account include the relationship between the limitation
and its purpose, which is usually constituted by the protection or promotion of some or other
public interest, the application of the general limitation clause accords with the common-rule in
criminal law, administrative law and criminal procedure that despite the voluntariness of a
waiver, the adagia volenti non fit iniuria and quilibet licet renuntiare juri pro se introducto does not
apply when the public interest is affected detrimentally. See Ritch and Bhyat v Union Government
(Minister of Justice) 1912 AD 719 734–735; S v Van Zyl 1991 1 SA 804 (A) 808 820; Ryland v Edros
1997 1 BCLR 77 (C) 94–96, 1997 2 SA 690 (C) 712–714. See also S v Mathebula 1997 1 BCLR
123 (W) 137–140.
45 2001 2 BCLR 176 (SCA) paras 47–48.
46 See Telcordia Technologies, Inc v Telkom SA Ltd 2007 5 BCLR 503 (SCA) para 48; Coetzee v Comitis
2001 4 BCLR 323 (C) paras 38–39; Knox D’Arcy Ltd v Shaw 1996 2 SA 651 (W), 1995 12 BCLR
1702 (W); Wittman v Deutscher Schülverein, Pretoria 1999 1 BCLR 92 (T), 1998 4 SA 423 (T); Gar-
den Cities Inc Association v Northpine Islamic Society 1999 2 SA 268 (C); Patcor Quarries v Issroff 1998
4 BCLR 467 (SE) 476. For a discussion of the relation between the phenomenon of waiver and
the law of contract in German law, see Bäuerle M Vertragsfreiheit und Grundgesetz (2000) 364–
365.
court applied the Bill of Rights “indirectly”, that is, via the private law public policy
47
concept as steeped in the constitutional values in section 1 of the Constitution. The
court misconceived the meaning of the “in terms of a law of general application” in
section 36. The words “in terms of law” in section 36 mean “as authorised by law”.
The law of general application in these instances comprises the provisions of the law
of contract in terms of which contracts are concluded and the conclusion of a
contract is action “in terms of” that law. Langa CJ delivered a brief concurring
judgment in which he expressed doubt as to whether indirect application of the Bill
of Rights to contractual clauses is the only appropriate way to deal with the
limitation of rights in contractual clauses – direct application may possibly reach the
same result.48
49
Based on a note by Woolman, the Constitutional Court in Lufuno Mphaphuli and Asso-
ciates (Pty) Ltd v Andrews expressed doubt, without deciding the issue, whether it is at all
50
possible that constitutional rights can be waived. Woolman argues that although
some rights “do permit interpretations of their scope that enable both right-bearers
and other parties to ... form legal relationships that appear, at least notionally, to en-
gage in the broad subject matter captured by those rights and do not result in their
abrogation”, this “is not the waiver of a right but the interpretation of a right” and
“[o]nce the court has interpreted the boundaries of a right (and that embraces any limi-
tation analysis) it will be impermissible to do that which the right does permit. ... The
desires of the parties are not material to the determination of the content of the
51
right”. This is a theoretical construction in which the limitation of rights (and there-
fore also the limitation by concluding contracts) forms part of the definition of a right.
According to Woolman interpretation “embraces” “limitation”. In terms of this con-
struction all steps to apply a right and, in particular the step to apply limitation clauses
(“any limitation analysis” in Woolman’s words), must be regarded as part of the defini-
tion of the right and once this has been done in order to “define” a right, no possibil-
ity of waiver can ever exist. Constructions other than the one which one favours, will
most certainly always reveal “category mistakes” when measured against the preferred
one. Woolman’s construction which results in a denial of the possibility of waiver, con-
tains category mistakes when it is viewed within the context of a two-stage approach
towards the application of a bill of rights. Woolman’s construction simply moves the
52
justification analysis to a first and single stage. This is also true of the limitation of
53
rights within the context of the law of contract and contractual relations. It is quite
possible that the objections against the possibility of “waiving” rights by concluding
contracts have their origin in an emotional reaction that “waiving” sounds too much
like “total abandonment” and “abrogation”. In the end it does not matter whether one
talks about “waiver” or about “contractual obligations to exercise a right in a particular
________________________
47 Barkhuizen v Napier 2007 7 BCLR 691 (CC) paras 66 and 86. See Rautenbach IM “Constitution
and contract – exploring ‘the possibility that certain rights may apply directly to contractual
terms or the common law that underlies them’” 2009 TSAR 613.
48 The possibility that the Bill of Rights may be applied directly to contractual clauses and the
various approaches in this regard are referred to in chapter 17 para 7 below.
49 Woolman S “Category mistakes in waiver of constitutional rights: a response to Deeksha Bhana
on Barkhuizen” 2008 SALJ 10.
50 Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews 2009 6 BCLR 527 (CC), 2009 4 SA 529 (CC)
para 216.
51 Woolman S “Category mistakes in waiver of constitutional rights: a response to Deeksha Bhana
on Barkhuizen” 2008 SALJ 14 17. Emphasis added.
52 See para 3 above.
53 As explained in respect of arbitration agreements in Rautenbach IM “Private arbitrasie en die
handves van regte” 2010 TSAR 185 196–201 and generally in Rautenbach IM “Constitution and
contract – exploring ‘the possibility that certain rights may apply directly to contractual terms
or the common law that underlies them’” 2009 TSAR 631–632.
way or not at all for the duration of the contract”. If the emotional connotation of the
word “waiver” constitutes the problem, we should rather use the phrase “binding un-
dertaking not to exercise a right or to exercise it only in a particular way”. This, to a
large extent, forms the foundation of the law of contract within a bill-of-rights frame-
work and this is, in any event, how “waiver” has been understood up to now.
6 Conduct and interests not protected by the Bill of Rights

The fact that the Bill of Rights protects certain rights does not mean that the legal
system does not protect other rights and freedoms.
Section 39(3) of the Constitution provides that the Bill of Rights does not deny the
existence of any other rights that are recognised or conferred by common law,
customary law or legislation, to the extent that they are consistent with the Bill of
Rights. The purpose of the provision is to refute arguments that only constitutionally
enumerated rights are legally protected. It recognises the existence of rights of the
individual that are not entrenched in the Bill of Rights.
Section 39(3) cannot be used to afford a constitutionally entrenched status to
54
rights and freedoms which are not entrenched in the Constitution. These rights
and freedoms are not entrenched and, in principle, their limitation by legislatures
55
need not comply with the limitation clauses.
Note, however, that the right to administrative justice in section 33 and the rights to a
fair trial in civil and criminal proceedings in sections 34 and 35(3) do not apply only
to administrative actions and court proceedings affecting constitutionally entrenched
rights; legislation providing for the limitation of the rights and freedoms not en-
trenched in the Bill of Rights may not exempt the executive and the judiciary from
their sections 33, 34 and 35(3) obligations without complying with the limitation
clauses.
Section 39(3) can also not be used to bolster arguments that the legislature may not
change the common law. In Law Society of South Africa v Minister for Transport the
Constitutional Court stated that section 39(3) does not mean that the Constitution
________________________
54 S 26 of the Canadian Charter reads: “The guarantee in this Charter of certain rights and
freedoms shall not be construed as denying the existence of any duty or any other rights or
freedoms that exist in Canada.” Hogg P Constitutional Law of Canada (1999) 681 explains: “Sec-
tion 26 does not incorporate these undeclared rights and freedoms into the Charter, or ‘con-
stitutionalize’ them in any other way. They continue to exist independently of the Charter, and
receive no extra protection from the Charter. They differ from the rights or freedoms guaran-
teed in the Charter in that, as creatures of common law or statutes, the undeclared rights can
be altered or abolished by the action of the competent legislative body.” The text of the ninth
Amendment to the US Constitution is different – it provides that the “enumeration” of “cer-
tain” rights is not to be construed to foreclose “others retained by the people”. There is uncer-
tainty about what the Amendment means (Yackle L Regulatory Rights – Supreme Court Activism,
the Public Interest, and the Making of Constitutional Law (2007) 28-–9). It could for example be in-
terpreted to mean that there are unenumerated rights “retained by the people” that enjoy the
same constitutionally entrenched status as rights in the Bill of Rights.
55 Referring to s 33(3) of the Interim Constitution Sachs J stated in Ferreira v Levin NO; Vryenhoek v
Powell NO 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 247: “[T]he existence of such a
common law principle outside of but not inconsistent with Chapter 3, as recognised by section
33(3), would not in itself provide that basis for invalidating a statute. However long and hon-
ourable the pedigree of such a common-law principle might be, without embodiment in a spe-
cific constitutional text, it could not render a statute unconstitutional; we deal not with rights
in the air, but with rights anchored in the wording of the Constitution.”
limits the legislative power of parliament in relation to adapting or abolishing parts
56
of the common law, indigenous law or of existing legislation.
Furthermore, section 39(3) should not be interpreted to mean that the individual
has only those rights entrenched in the Constitution and those rights and freedoms
positively recognised or conferred by common law, customary law or legislation.
Before the coming into operation of the Interim Constitution, the formal position
with regard to the protection of fundamental rights was that individuals had the
freedom to conduct themselves and to protect and promote their interests in what-
ever way they wished to the extent that their actions were not limited or prohibited
57
by law; formal, positive recognition by the common law, customary law or legisla-
tion was not a prerequisite for the existence of this freedom. This position is re-
58
tained with regard to rights and freedoms not entrenched in the new Constitution.
________________________
56 Law Society of South Africa v Minister for Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC)
paras 69, 70.
57 Beinart B “The liberty of the subject” 1953 THRHR 27–38. In this respect, the Canadian
provision (see n 55 above) is better formulated than its South African counterpart.
58 It could, of course, also be argued that to the extent that the common law, customary law or
legislation does not limit or abolish these rights and freedoms, they are implicitly recognised
by common law, customary law or legislation.
Chapter 17
Binding effect of the Bill of Rights
1 The constitutional provisions 289

2 Law 290
3 State organs – general 295
4 Legislatures 296
5 Executive and administrative organs 299
6 Judicial organs 300
7 Private persons and institutions 302
1 The constitutional provisions

The first three subsections of section 8 deal with the application of the Bill of Rights
to all law, all organs of state and private persons.
8(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the
extent that, it is applicable, taking into account the nature of the right and the nature
of any duty imposed by the right.
(3) When applying a provision in the Bill of Rights to a natural or juristic person in
terms of subsection (2), a court – (a) in order to give effect to a right in the Bill, must
apply, or if necessary develop, the common law to the extent that legislation does not
give effect to that right; and (b) may develop rules of the common law to limit the
right, provided that the limitation is in accordance with section 36(1).
For the purposes of understanding sections 8(1) and 8(2), it is important to
distinguish between
(a) the application of the Bill of Rights to legal rules and
(b) the application of the Bill of Rights to the actions of organs of state and actions
of private persons and institutions executed in terms of those legal rules.
• An example of (a) is when we ask whether the law in terms of which driver’s
licences are issued, is consistent with the Bill of Rights.
• An example of (b) is when we ask whether state official A complied with the Bill
of Rights when she issued (or refused to issue) a driver’s licence to B.
Such a distinction was made in NEHAWU v University of Cape Town. The court dis-
tinguished between the constitutionality of a legal norm and the constitutionality of
1
the application of that norm. In a particular case, only the constitutionality of the
legal rules may be questioned, while in another case only the state or individual
action performed in terms of a constitutionally valid legal rule may be questioned.
An important aspect of this is that organs of state and individuals are bound by the
________________________
1 NEHAWU v University of Cape Town 2003 2 BCCLR 154 (CC), 2003 3 SA 1 (CC) para 14. See
also S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 37; AMCU v Chamber of
Mines 2017 3 SA 242 (CC), 2017 6 BCLR 700 (CC) paras 84–87.
289
Bill of Rights even when they perform their actions in terms of constitutionally valid
legal rules. This is so because the legal rules that authorise them to perform the
action usually leave them with a freedom to choose between different options (a
discretion) as to how they are going to act. When they exercise this freedom or
discretion, they are also bound by the Bill of Rights. The application of the Bill of
Rights to the actions of private persons and institutions that act in terms of private
law, is discussed in paragraph 7 below.
In view of this distinction, it can be said that:
• the first part of section 8(1) (the “Bill of Rights applies to all law”) deals with the
application of the Bill of Rights to all legal rules (discussed in paragraph 2 below);
• the second part of section 8(1) (“the Bill of Rights . . . binds the legislature, the
executive, the judiciary and all organs of state”) deals with the actions of all organs
of state executed in terms of constitutionally valid legal rules (discussed in para-
graphs 2 to 6 below); and
• section 8(2) (“the Bill of Rights “binds a natural and juristic person”) deals with
the actions of private persons and institutions performed in terms of constitutionally
valid legal rules (discussed in paragraph 7 below).
The implications for distinguishing between the constitutionality of legal rules and
actions performed under valid rules are, for example, in respect of private contractual re-
lations, as follows:
• The common-law, customary law and statutory rules of the law of contract: the Bill of
Rights applies in terms of section 8(1).
• The contractual clauses concluded through their actions executed in terms of constitution-
2
ally valid legal rules: the Bill of Rights applies in terms of section 8(2).
• The actions that parties execute in terms of constitutionally valid contract: the Bill of
3
Rights applies in terms of section 8(2).
2 Law
The Bill of Rights applies to all law.
Section 8(1) provides that the Bill of Rights applies to all law.
________________________
2 Barkhuizen v Napier 2007 7 BCLR 691 (CC), 2007 5 SA 323 (CC) dealt with the constitutional
validity of a contractual clause (a time bar of 90 days after repudiation for the institution of ac-
tion in a short term insurance contract) and not with the validity of the common law in terms
of which the contract was concluded.
3 The last two levels are clearly distinguished in Bredenkamp v Standard Bank of SA Ltd 2010 9
BCLR 892 (SCA) paras 47 and 48. The example used by the court to explain the distinction
was: “where a lease provides for the sublease with the consent of the landlord ... [such] a term
if prima facie innocent ... [but] [s]hould the landlord attempt to use it to prevent the property
from being sublet in circumstances amounting to discrimination under the equality clause, the
term is not enforced” – para 47. See in respect of private arbitration contracts, Lufuno Mpha-
phuli and Associates (Pty) Ltd v Andrews 2009 6 BCLR 527 (CC), 2009 4 SA 529 (CC) para 194
and Rautenbach IM “Private arbitrasie en die handves van regte” 2010 TSAR 643. In Ramakatsa
v Magashule 2013 2 BCLR 202 (CC) neither the legal rules under which the ANC constitution
as a contract came into existence, nor the provisions of the constitution as a contract were
challenged; the court invalidated actions and behaviour of the party under the valid contract
in limiting political rights of some of its members. See ch 23 para 4.3.
Chapter 17 Binding effect of the Bill of Rights 291
Although the Bill of Rights applies to all law and is superior to it, it is not a
complete, codified legal system that replaces existing law that is consistent with the
Constitution. Complaints about the violation of the Bill of Rights must be dealt with
4
under ordinary legal rules when the rules are consistent with the Constitution.
This principle is contained in the transitional provision in item 2(1) of schedule 6 of
the Constitution which provides that all law in force when the new Constitution took
effect, continues in force, subject to (a) any amendment or repeal; and (b)
consistency with the new Constitution. This provision contains the principle of
subsidiarity. This principle means that unless one attacks the constitutionality of a
legal rule, complaints about enforcing the rights in the Bill of Rights must be dealt
with by applying the ordinary, existing law. The principle is based on the fact that an
existing legal rule which is consistent with the Constitution gives effect to the Bill of
Rights. This, however, does not mean, that when organs of state and private persons
perform actions involving the exercise of a discretion under existing,
constitutionally valid legal rules, the Bill of Rights does not apply to those actions.
The reason for this is explained in paragraph 5 below.
“Law” comprises statutory law, common law and customary law.
5
The Bill of Rights also applies to common law and customary law.
It cannot be argued that the Bill of Rights does not apply to common law and
customary law, because these systems are evolved by the people themselves and
recognised and “developed” by the judiciary and no legislature is involved in
enacting them. In principle, it would be inconsistent with the supremacy of the
Constitution, the rule of law and the concept of the constitutional state if the state
were to enforce legal rules to which the Bill of Rights in view of their origin and
development does not apply. This conclusion does not detract from the quality of
common law and customary law as authentic law, or from the recognition in the Bill
of Rights of the autonomy of language, culture and religious communities, churches
and voluntary associations to regulate their own affairs in terms of their own internal
rules. However, one cannot expect the state to recognise and enforce legal or any
other rules when they are inconsistent with the provisions of the Bill of Rights.6
In respect of customary law, the Constitutional Court has explained that, although the
Constitution envisages a role for legislatures in respect of the development of custom-
ary law, previous approaches condemning and even invalidating rules of customary law
merely on the basis of the latter’s differences from the common law or legislation, are
inconsistent with various provisions of the Constitution – for example, with provisions
protecting cultural diversity in sections 30 and 31 and the recognition in section 211 of
________________________
4 The Constitutional Court confirmed this principle in respect of various pieces of legisla-
tion that give effect to social rights (Mazibuko v City of Johannesburg 2010 3 BCLR 239
(CC), 2010 4 SA 1 (CC) para 73), the right to equality MEC for Education KwaZulu-Natal v
Pillay 2008 2 BCLR 99 (CC) 2008 1 SA 474 (CC) para 40), labour relations (SANDU v
Minister of Defence 2007 8 BCLR 868 (CC), 2007 5 SA 400 (CC) para 52), and the rights to
just administrative action (Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004
7 BCLR 687 (CC), 2004 4 SA 490 (CC) paras 22–26) and access to information (PFE Inter-
national Inc (BVI) v Industrial Development Corporation of South Africa Ltd 2013 1 BCLR 55 (CC),
2013 1 SA (CC) para 4).
5 In respect of customary law, see also s 211(3). In respect of common law, see National Coalition
for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC), 1999 1 SA 6 (CC) para
90.
6 Cf s 15(3)(b).
7
institutions unique to customary law. However, the court also emphasised that, in
terms of sections 8(1) and 211(3) of the Constitution, customary law is subject to the
Constitution and that in terms of section 39(2) when customary law is adjusted or de-
veloped it must happen in line with the spirit, purport and objects of the Bill of
8
Rights. The Constitutional Court thus develops customary law by developing rules of
the customary law which prevent traditional authorities from amending customary law
unilaterally. The newly developed rules enable them to do so when customary law is
9
inconsistent with the Constitution.
In reviewing the constitutionality of an international agreement, a court “formally”
investigates the validity of the act of parliament which incorporates the convention
10
in question into South African law.
The Bill of Rights applies to the rules of private law.
Because the Bill of Rights applies to all law, it also applies to legislation, common law
11
and customary law that regulate private relationships. When the state takes
measures in terms of section 7(2) to “protect, promote and fulfil” the rights in the
Bill of Rights, it must inevitably do so by enacting legislation that may affect private
relations.12 Private law rules which, for example, treat people unequally, or which
empower one person to limit the rights of another must comply with the limitation
13
clauses in the Bill of Rights.
Historically speaking, bills of rights have primarily been instruments to restrict the
exercise of government authority vis-à-vis individuals and private institutions. Usually
they have not been devised to serve as private law codes. Nevertheless, effective bills
________________________
7 Bhe v Magistrate Kayelitsha; Sibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1
BCLR 1 (CC), 2005 1 SA 580 (CC) paras 41, 42, 44.
8 Bhe v Magistrate Kayelitsha 2005 1 BCLR 1 (CC), 2005 1 SA 580 (CC) paras 44, 415 and 218. The
court pointed out that one of the problems in applying the Constitution to customary law is
that “official” customary law as reflected in legislation, textbooks and court decisions often
does not contain an accurate account of “true” customary law which changes and is adjusted
continuously – para 82.
9 Shilubana v Mwamitwa 2008 9 BCLR 914 (CC), 2009 2 SA 66 (CC) paras 71–75. For an overview
of developments since 1994, see Nlapo T “Customary law in post-apartheid South Africa: con-
stitutional confrontations in culture, gender and ‘living law’” 2017 SAJHR 1–24.
10 LS v AT 2001 2 BCLR 152 (CC), 2001 1 SA 1171 (CC) para 27.
11 With regard to legislation, this was the unanimous view of the Constitutional Court in respect
of the Interim Constitution in Du Plessis v De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC)
para 72; difference of opinion on the “direct” or “indirect” application of the Bill of Rights to
common law does not affect the fact that all the judges were of the opinion that it did apply.
See Brink v Kitshoff 1996 6 BCLR 752 (CC), 1996 4 SA 197 (CC) in which the Bill of Rights was
applied to s 44(1) and (2) of the Insurance Act 27 of 1943 dealing with relationships between
insurers and insured.
12 Maphango v Angus Lifestyle Properties (Pty) Ltd 2012 5 BCLR 449 (CC) para 34.
13 The conclusion in Du Plessis v De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC) para 60 that
“[t]he lawgiver did not say that courts should invalidate rules of common law inconsistent with
Chapter 3 or declare them unconstitutional” was based on the text of the Interim Constitution
and cannot be applied to the present Constitution. In Amod v Multilateral Motor Vehicle Accident
Fund 1997 12 BCLR 1716 (D) 1723 the Du Plessis case was quoted in support of the contention
that s 8(3)(a) does not empower a court to “eliminate” an existing principle of the common
law. Whatever the position might be with regard to s 8(3), ss 8(1) and 172(1)(a) clearly em-
power a court to invalidate unconstitutional rules of the common law. See also Cockrell A “Pri-
vate law and the bill of rights: a threshold issue of horizontality” Butterworths Bill of Rights
Compendium [Issue 12] (2003) para 3A7 who says that “all law” in s 8(1) possibly does not in-
clude common law rules that do not regulate the actions of the public agencies referred to in s
8(1). S 8(1) does not contain such a qualification.
of rights, as parts of entrenched, justiciable constitutions, have superior legal force
to ordinary legal rules. In all systems with entrenched bills of rights it has to be
determined what the exact impact of the bill of rights is on private law and on
relationships between private persons.
Bills of rights may contain general provisions stipulating expressly that the bill of
14
rights also binds individuals and juristic persons. In addition, it may be expressly
15
provided that certain rights also apply to parties in private relationships. Even when
constitutions do not contain such express provisions, some or other approach
towards the application of the bill of rights to private law and private relations is
being followed in all other systems.
In Germany, the prevailing opinion of the courts and writers on the “binding effect of
constitutional rights on third parties” is that rights apply indirectly to private law which
generally means that the Bill of Rights may be applied to unequal private relation-
ships, and that conduct inconsistent with the bill of rights may be unlawful for the
purposes of the law of delict and the law of contract via the application of general con-
16
cepts such as boni mores and bona fides. It is a popular construction amongst South
African judges and private law academics.
17
In American law, the Bill of Rights formally applies only to state action. Yet, the con-
cept “state action” is applied in such a way that certain private law relationships are
18
seemingly also covered.
According to Canadian law, the Bill of Rights applies only to organs of state (which
do not include the courts). Statutes regulating private relationships must comply with
the Bill of Rights, but in litigation between private parties, the validity of the common
19
law cannot be questioned in terms of the Bill of Rights.
The relevant provisions of the South African Interim Constitution were based on a com-
promise between those who were in favour of the application of the Bill of Rights to
20
private law, and those who opposed it. The provisions were ambiguous. In Du Plessis v
21
De Klerk the Constitutional Court made a distinction between “direct” and “indirect”
application. The Bill of Rights applied directly when an organ of state was a party to a
________________________
14 S 5 of the Namibian Constitution reads: “The fundamental rights and freedoms enshrined in
this Chapter shall be respected and upheld . . . where applicable to them, by all natural and le-
gal persons in Namibia . . .”
15 S 9(2) of the German Constitution provides that agreements impeding or limiting the right to
form trade unions and employers’ organisations are void. S 9(4) of the South African Constitu-
tion provides that no person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in s 9(3).
16 See Scholz II Grundgesetz (1987) 49–52 for a brief survey; and Stern K III/1 Das Staatsrecht der
Bundesrepublik Deutschland (1988) 1509–1595 for a thorough analysis.
17 In the Civil Rights Cases (1883) 109 US 3 11 it was stated in respect of the rights in the fourteenth
amendment: “It is State Action of a particular character that is prohibited. Individual invasion of
individual rights is not the subject-matter of the Amendment.” This position is still maintained
formally. Discrimination in private relationships is therefore not prohibited by the bill of rights
as such, but by various Civil Rights Acts adopted by the federal legislature.
18 Some examples are: a private company in control of a town exercises a public function – Marsh v
Alabama (1946) 326 US 501; political parties determining qualifications for election do so as state
organs – Terry v Adams (1953) 345 US 461; state action is involved where a lower court enforces a
contract in which the parties agreed to discriminate against third parties on the basis of race – Shelley
v Kraemer (1948) 334 US 1; a person leasing a coffee shop in a municipal parking garage is bound by
the equal protection clause of the fourteenth amendment – Burton v Wilmington Parking Authority
(1961) 365 US 715.
19 Hogg PW Constitutional Law of Canada (1999) 703–708.
20 Cachalia A, Cheadle H, Davis D, Haysom N, Maduna P and Marcus G Fundamental Rights in the
New Constitution (1994) 20–21 122.
21 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC).
22
dispute, when the constitutionality of statutes and administrative acts regulating pri-
vate relationships was in issue, and when organs of state acted in terms of common
law. The Bill of Rights applied “indirectly” when a private party in private litigation al-
leged that a common-law rule was inconsistent with the Bill of Rights – when necessary,
a court would then, in terms of section 35(3) of the Interim Constitution, develop the
common law to conform to the Bill of Rights. The Constitutional Court gave no indi-
cation whether there would be any substantive difference if the Bill of Rights were to
be applied “directly” or “indirectly”. The main uncertainties emanating from the pro-
visions of the Interim Constitution have been cleared up in section 8(2) and (3) of the
present Constitution.
The wording of section 8(1) of the South African Constitution that the Bill of Rights
applies to all law, leaves as such no room for the so-called indirect application of the
Bill of Rights to private law.
In Khumalo v Holomisa, the Constitutional Court held that “all law” in section 8(1) does
not cover the direct application of the Constitution to common law that regulates pri-
vate relations, because “if the effect of sections 8(1) and (2) read together were to be
that the common law in all circumstances would fall under the direct application of
the Constitution,23 section 8(3) would have no apparent purpose”.24 This is not a con-
vincing reason for the indirect application of the Bill of Rights to the common law that
regulates private relations. Although section 8(3) refers to the development of the
common law (see below), section 8(3) only comes into operation after provisions of
the Bill of Rights have been applied to private relations in terms of section 8(2) and a
conclusion has been reached that a private person has unjustifiably infringed a right of
another private person and that the existing statutory or common-law remedies do not
apply. The court must then develop the common law to provide a remedy. This is
clearly a different rule than the rule in section 8(1) that the Bill of Rights applies to all
law. Section 8(3) does not contain a general rule that regulates the application of the
Bill of Rights to the common law, it employs the phenomenon of the “development of
the common law” as a remedy in instances where the existing statutory and common
law do not provide enough protection in private relations. The court misunderstood
section 8(3). It is also argued that indirect application is the vehicle through which the
values in our Constitution as an objective normative system would influence our pri-
vate law.25 However, a more efficient way of giving effect to an objective, normative val-
ue system is simply to apply the rights and limitation requirements in chapter 3
directly.
There are no good reasons for applying the Bill of Rights “indirectly”.
The direct application of the Bill of Rights to all private law certainly does not
mean that the incremental development of the common law and whatever role
legislatures and the courts wish to play in this regard are disposed of. All that is
required is that the common law and its development have to comply with the Bill of
Rights. This is an inevitable implication of the supremacy of the entrenched and
justiciable constitution.
________________________
22 The court did not express an opinion on whether the state is bound in the so-called “commer-
cial or contractual spheres” – para 49.
23 Van der Walt AJ and Marais EJ “The constitutionality of acquisitive prescription: a section 25
analysis” 2012 TSAR 719–720 state that the constitutional scrutiny of legal rules “is an instance
of vertical and indirect horizontal application of section 25”. However, their discussion of the
constitutionality of acquisitive prescription (720–735) is based on a detailed application of all
the elements of the right to property in s 25 and not indirectly on the values, spirit and pur-
port of the Bill of Rights as referred to in s 39(2).
24 Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC) para 32.
25 O’Regan K “From form to substance: the constitutional jurisprudence of Laurie Ackerman” in
Barnard-Naudé et al (eds) Dignity, Freedom and the Post-Apartheid Legal Order (2008) 9 with refer-
ence to case law and the German system.
Arguments that the direct application of the Bill of Rights to private law seriously
26
undermines “private autonomy” are not convincing. Apart from the fact that it is
not clear why direct application would be more drastic than so-called indirect appli-
cation, the “private autonomy” of private persons in terms of private law has never
been absolute. Rules of private law have always set limits to “private autonomy” for
the sake of an ordered society and for the protection of the rights of others. The
principle that rights may be limited, represents the social dimension of all rights in
the Bill of Rights. At the same time, “private autonomy” is afforded greater protec-
tion by an entrenched and justiciable Bill of Rights than in systems with sovereign
parliaments and in which the common law is developed incrementally either by
legislative intervention or by the courts. All the rights in the Bill of Rights protect
“private” conduct and interests and these rights may only be limited by all (includ-
ing the courts when they develop the common law) when the limitations comply
with the requirements of the limitation clauses.
The Bill of Rights must be applied directly to the rules of private law.
Direct application as understood here means that like in any other Bill of Rights
investigation, the two-stage approach must be followed. Firstly it must be determined
whether the legal rule concerned limits a right in the Bill of Rights, and secondly, if
it does, it must be determined whether the factual limitation can be justified in
terms of the general limitation clause or any specific limitation provision that might
be applicable. It is simply not true that the Constitution tells us nothing on how
clashes between private rights must be dealt with in private law.
Examples in which the courts have considered the constitutional validity of common-
law rules that regulate private relations are referred to in the chapters that deal with
27 28
the right to physical and psychological integrity, unfair discrimination, the right to
29 30
the exercise of a trade, occupation and profession, the right to property, the right
31 32 33
to privacy, the right to freedom of expression and the right to freedom of assembly.
3 State organs – general

Section 1 of the Constitution provides that the Bill of Rights binds all legislative,
executive, judicial and other organs of state.
By using the trias politica distinction between the organs of state, section 8(1) affords
comprehensive protection against all state action. The phrase “and all organs of
state” has probably been included to cover organs of state which might not formally
form part of the legislature, the executive or the judiciary.
Section 239 of the Constitution provides that, unless the context indicates other-
wise, “organ of state” in the Constitution means any department of state or admini-
stration in the national, provincial or local sphere of government: or any
________________________
26 See eg Verhey L Horizontale werking van grondrechten, in bijzonder van het recht op privacy (1992) 87
et seq; Den Braven SA (Pty) Ltd v Pillay 2008 6 SA 229 (D&CLD) para 30; Häger J “Grundrechte
im Privatrecht” 1994 Juristenzeitung 373, 374.
27 Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 7 BCLR 710 (SCA); K v Minister of
Safety and Security 2005 9 BCLR 835 (CC), 2005 6 SA 419 (CC); see ch 21.
28 Petersen v Maintenance Officer 2004 2 BCLR 205 (C), 2004 2 SA 56 (C); see ch 19.
29 Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA); see ch 24.
30 Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 BCLR 300 (CC), 2007 3 SA 121
(CC); see ch 24.
31 NM v Smith 2007 7 BCLR 751 (CC), 2007 5 SA 250 (CC); see ch 22.
32 Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC); see ch 23.
33 SATAWU v Garvas 2012 8 BCLR 840 (CC); see ch 18 para 2.4.
functionary or institution exercising a power, or performing a function in terms of
the Constitution or a provincial constitution; or exercising a public power or per-
forming a public function in terms of any legislation. This provision is discussed in
chapter 6 paragraph 1.
The fact that organs of state are bound by the Bill of Rights means that the Bill of
Rights applies to all their actions and to the results of those actions (legislation, admin-
istrative decisions and court decisions). The question as to whether the legislature,
executive and judiciary are bound by the Bill of Rights and the question as to whether
the Bill of Rights applies to legislation, executive decisions and court decisions are,
in principle, not separate questions.
Section 7(2) provides that all organs of state must respect, protect, promote and
fulfil the rights in the Bill of Rights.
The meaning of these general duties is discussed in chapter 16 paragraph 1. The
details concerning the duties of an organ of state may also be determined by the
provisions of the right concerned. 34 As is indicated in chapter 16 paragraph 2 there
are rights that specify certain duties. Since organs of state perform distinct functions,
are constituted differently and exercise their powers and functions in different ways,
their duties may, within the framework of their general duties in section 7(2), vary
depending on whether a legislative, executive or judicial organ is involved.
4 Legislatures
All legislative organs are bound by the Bill of Rights.
Legislatures are bound in respect of all the legislation which they make and in
respect of all their other functions.35 In terms of the Constitution they are bound by
the Bill of Rights in the exercise of all their powers and functions. When parliament,
for example, disciplines a member, the right to just administrative action must be
observed.36
The South African parliament is no longer the highest organ of state in determin-
ing which rights the individual has and to what extent these rights may be limited.
Parliament’s special duties in respect of the Bill of Rights include that amendments
37
to the Bill of Rights must comply with special amendment procedures. Provincial
legislatures are bound by the Bill of Rights in the same way as parliament. In terms of
38
the Constitution, local governments exercise legislative authority and they are legisla-
39
tures for the purposes of the Bill of Rights.
________________________
35 Enacting laws is not the only function of legislatures. See with regard to parliament ch 8 para
2.2.
36 See Malherbe EFJ “Die regsaard van parlementêre prosedure: ’n hedendaagse perspektief” 1992
TSAR 75 and “Parlementêre privilegies en menseregte” 1991 TSAR 330; De Lille v Speaker of the Na-
tional Assembly 1998 7 BCLR 916 (C), 1998 3 SA 430 (C); Malherbe EFJ “Parlementêre voorreg
en grondwetlike oppergesag: ’n bastion buig” 1999 TSAR 145.
37 S 74(2) – the amendment must be supported by two-thirds of the members of the National
Assembly and the votes of at least six of the nine provinces in the National Council of Prov-
inces. See ch 8 para 2.5.7.7.
38 S 43(c).
39 Since all executive bodies are also bound by the Bill of Rights, it could possibly be argued that
it is irrelevant whether local legislatures are regarded as legislative or executive bodies. This is
not necessarily true. In other systems the courts usually allow elected legislatures greater dis-
cretion regarding the limitation of rights than they allow administrative and executive bodies
performing legislative administrative acts. This has, in fact, always been the case in South Afri-
can administrative law (Baxter Administrative Law (1989) 492–493).
Legislatures do not only have the duty not to limit rights unconstitutionally in the
Bill of Rights, but they also have the duty to protect, promote and fulfil the rights.
This duty may take on different forms:
• In certain cases, the Bill of Rights expressly imposes a duty on legislatures to enact
legislation.40 Such legislation had to be enacted within a reasonable period of the
date on which the Constitution took effect.41
• Legislatures must contain the violation of rights by enacting rules of criminal law
and the law of delict.42
• Some rights cannot be exercised effectively in the absence of laws facilitating
their exercise. The right to vote and the right of access to elected public offices
cannot be exercised if no law provides how a vote should be cast and how per-
43
sons may make themselves available for election to the offices.
• When legislation limits rights unconstitutionally, the effect of a declaration of
unconstitutionality will most often be that legislation must be enacted to rectify
the “infringement”.44
The rights in respect of the environment, housing, health care, food, water, and
social security are generally known as social rights in respect of which the state and
particularly its legislative organs must take positive measures to give effect to.45 The
enforcement of these rights requires that whenever necessary, a court of law should
instruct organs of state to enact and execute laws. One of the stereotypical arguments
against social rights is that such instructions by a court violate the separation of
powers. In In re Certification of the Constitution of the RSA, 1996, the Constitutional
Court countered this objection as follows:46
“It is true that the inclusion of socio-economic rights may result in the courts making
orders which have direct implications for budgetary matters. However, even when the
________________________
40 Eg “national legislation” to prevent or prohibit unfair discrimination (s 9(4)) and concerning

the right to access to information (s 32(2)) and just administrative action (s 33(3)); “reason-
able legislative or other measures” with regard to environmental rights (s 24(2)), access to land
(s 25(5)), housing (s 26(1)), health care, food, water and social security (s 27(2)); and “an Act
of Parliament” to regulate certain matters pertaining to land tenure and the restitution of
property (s 25(6), (7) and (9)).
41 Item 21(1) schedule 6. In UDM v President of the RSA 1 2002 11 BCLR 1179 (CC), 2003 1 SA 495
(CC), a law of parliament was invalidated because it was not passed within a reasonable time.
42 S 8(3) refers implicitly to this duty by providing that when “legislation” or the common law
does not give effect to a right in private relations, the courts must develop the common law to
do so. See para 7 below.
43 August v Electoral Commission 1999 4 BCLR 363 (CC), 1999 3 SA 1 (CC) para 16; New National
Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) paras
13 and 23. See in respect of the right to access to the courts, Bernstein v Bester NO 1996 4 BCLR
449 (CC), 1996 2 SA 751 (CC) para 151; in respect of the right to legal representation in crim-
inal trials, S v Vermaas; S v Du Plessis 1995 7 BCLR 851 (CC), 1995 3 SA 292 (CC) para 16.
44 See the examples from the decisions of the European Court for Human Rights and the
American, Canadian and Indian courts referred to by Beatty DM “The last generation: when
rights lose their meaning” in Beatty DM (ed) Human Rights and Judicial Review (1994) 332–333,
in which, as he states “. . . the courts have . . . required the elected branches of government to
revise and even extend laws regulating employment relations and economic security to meet
traditional guarantees of equality, human dignity and due process of law” (italics added).
45 See ch 25 paras 1.3 and 1.4 on the meaning of the phrase “[t]he state must take reasonable
legislative and other measures within its available resources” which appears in ss 25(5), 26(2),
and 27(2).
court enforces civil and political rights such as equality, freedom of speech and the
right to a fair trial, the order it makes often have such implications. A court may re-
quire the provision of legal aid, or the extension of state benefits to a class of people
who formerly were not beneficiaries of such benefits. In our view it cannot be said that
by including socio-economic rights within a Bill of Rights, a task is conferred upon the
courts so different from that ordinarily conferred upon them by a Bill of Rights that it
results in a breach of separation of powers.”
In Government of the RSA v Grootboom, the Constitutional Court stated that the state
duties ensuing from the social rights are not only imposed by the sections in which
these rights are guaranteed, but also by the general provision in section 7(2). This
reference to section 7(2) must be read in conjunction with the following statements
of the court on the relationship between the social rights and some of the so-called
47
civil and political rights:
“Our Constitution entrenches both civil and political rights and social and economic
rights. All the rights in our Bill of Rights are inter-related and mutually supporting.
There can be no doubt that human dignity, freedom and equality, the foundational
values of our society, are denied those who have no food, clothing or shelter. Afford-
ing socio-economic rights to all people therefore enables them to enjoy the other
rights enshrined in Chapter 2.”
These statements indicate that the popular distinctions drawn between civil and politi-
cal rights, upon which the state has a “negative” duty not to infringe, and socio-
economic rights, in respect of which the state has a “positive” duty to fulfil, are illu-
sionary. The conduct and interests protected by the social rights are the same as those
protected by the rights to, for example, human dignity, equality, life, freedom and se-
curity of the person, and privacy. Even if no social rights were guaranteed in the Bill of
Rights, the duty of state organs in terms of section 7(2) to “protect, promote and fulfil”
the rights would have entailed that the state has to take preventative and remedial
measures in respect of the protected conduct and interests. The Bill of Rights guaran-
tees social rights in recognition of the fact that no or insufficient access to adequate
housing, health-care services, food and water, and social assistance may seriously im-
48
pair the protected interests and conduct of various so-called civil rights.
Legislatures may never in any law that they enact, limit rights to a greater extent or
differently to what is possible in terms of the Bill of Rights. Laws that they must
adopt to regulate the exercise of certain rights are no exception. Whenever rights
are limited in such laws, the limitation clauses have to be complied with.
The Constitutional Court stated in NEHAWU v University of Cape Town: “In many
cases, constitutional rights can only effectively be honoured if legislation is enacted.
Such legislation will of course always be subject to constitutional scrutiny to ensure that it is not
49
inconsistent with the constitution.”
This clear and emphatic statement on something, which is actually self-evident, is to be
welcomed after it was incorrectly stated in New National Party of SA v Government of the
RSA that “permissible” restrictions of the right to vote in measures to give effect to the
right to vote are necessary forms of regulation to facilitate the right and not limitations
50
that require justification in terms of limitation clauses. A statement to the effect that
51
giving effect to a right in the Bill of Rights does not limit that right is either
________________________
47 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 23.

48 See the discussion in ch 25 para 1.2.
49 2003 2 BCLR 154 (CC) para 14. Emphasis added.
50 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) para 123; See, also, Affordable Medicines Trust v
Minister of Health of RSA 2005 6 BCLR 529 (CC), 2006 3 SA 247 (CC) para 4.
51 See, in respect of German law, Sachs M (ed) Grundgesetz Kommentar (2003) 296; Stern K IV/2
Das Staatsrecht der Bundesrepublik Deutschland (2011) 1933.
irresponsible or superfluous. It may be irresponsible if it means that, once a measure is
conceptually classified as “giving effect to” and not “limiting” a right, such measure will
be virtually immunised from judicial scrutiny or needs only to comply with a weak ra-
tional-relationship test as part of general constitutional legality, despite the fact that its
limiting impact could be severe. It could be superfluous if “permissible” turns out to
be a code for applying the requirements for the limitation of rights.
5 Executive and administrative organs

52
Executive bodies at all levels of government are bound by the Bill of Rights.
Classifications of executive or administrative acts according to the persons perform-
ing them (for example, ministerial acts, military acts, prerogatives of the head of
state, and executive and administrative acts), or according to their nature (legislative,
judicial or pure administrative acts), or according to their source (the Constitution,
common law, customary law of legislation) may affect particulars, but they do not
detract from the principle in section 8(1) that the Bill of Rights binds all executive
53
and administrative organs.
Executive decisions on policy and so-called “political questions” do not enjoy any
particular status.54 Although a person who limits rights may be afforded a wide
discretion to do so within the framework of the factors to be taken into account in
applying limitation clauses, in principle, no decision that limits rights is exempted
55
from the application of limitation clauses. Courts do not interfere with the devel-
opment and forming of policy before its implementation, except under narrowly
described circumstances. These circumstances prevail when the implementation has
become irreversible and its implementation could cause material and irreversible
harm.56 However, the moment the policy is given effect to in any action or rule
which affects behaviour or interests protected by rights in the Bill of Rights the
57
courts have a constitutional duty to investigate its constitutionality.
Executive organs may only perform actions when they have been authorised by
some or other legal rule to do so, and no legislature may exempt executive organs
from complying with the Bill of Rights.
________________________
52 S 8(1).
53 See in respect of the President’s powers, In re: Certification of the Constitution of the RSA, 1996
1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC) para 116; President of the RSA v Hugo 1997 6
BCLR 708 (CC), 1997 4 SA 1 (CC) paras 10–11; President of the RSA v SARFU 1999 10 BCLR
1059 (CC), 2000 1 SA 1 (CC) para 148; Pharmaceutical Manufacturers Association of SA; In re: Ex
parte Application of the President of the RSA 2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC) para 79.
54 See President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 141–142
and 147–148; Minister of Health v TAC (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC) para
101; Rautenbach IM “Policy and judicial review – political questions, margins of appreciation
and the South African constitution” 2012 TSAR 20.
55 In Baromoto v Minister of Home Affairs 1998 5 BCLR 562 (W) 577 the court stated: “[W]hilst it is
government’s right to take political decisions, these decisions must be taken in terms of the law
or the law must be amended so that the political decisions are in conformity therewith.” See
also Geuking v President of the RSA 2004 9 BCLR 895 (CC), 2003 3 SA 34 (CC) para 27.
56 Glenister v President of the RSA 2009 2 BCLR 136 (CC), 2009 1 SA 287 (CC) para 43.
57 In terms of s 172(2)(a) of the Constitution.
Even when a law that authorises an executive or administrative organ to limit rights
complies with the provisions of the Constitution, discretionary actions executed in
terms of that law must also comply with the Bill of Rights.
The Constitution is the supreme law, but it is not a complete legal code. Under the
princple of subsidiarity, referred to in paragraph 2 of this chapter, complaints about
the violation of the Bill of Rights must be dealt with by the application of ordinary,
constitutionally-valid legal rules. However, this does not mean that when organs of
state and private persons perform actions under existing, constitutionally valid legal
rules, the Bill of Rights does not apply to those actions. It is not correct to say that
the constitutional validity of administrative actions executed in terms of
constitutionally valid legislation needs to be determined by investigating only whether
58
the actions are covered by the authorisation in the enabling legislation. Legal rules
are not self-executing, they must be executed by organs of state and private persons.
They usually provide for freedom of action (a discretion on how to act) for organs of
state and private persons without repeating in detail all the constitutional rights that
may be affected and the constitutional requirements for their limitation. The
constitutional rights and the requirements for their limitation are subsumed, or
incorporated implicity, in ordinary, constitutionally valid legal rules. General terms
used in legal rules that authorise action to implement them such as
“reasonableness”, “good faith”, or in accordanbe with “boni mores” or “public
opinion” are points of entry for the application of the Bill of Rights. In order
therefore to find out whether those discretionary actions comply with the legal rules
which authorise them, the Bill of Rights must be applied to those actions. Whenever
an executive or administrative organ is accorded a discretion to limit rights, the
constitutionality of the action can be determined only by applying rules relating the
limitation of rights. The Constitutional Court held that executive action must be
rationally related to a legitimate purpose and it may not violate rights in the Bill of
59
Rights; and the Constitutional Court takes the factors in section 36(1) into account
in applying section 6(2)(h) of the Promotion of Admistrative Justice Act 3 of 2000
which gives effect the constitutional command in section 33 of the Constitution that
administrative action must be reasonable.60
6 Judicial organs
61
The Bill of Rights binds the judiciary in respect of all their actions.
Section 239 of the Constitution, according to which “organs of state” in the
Constitution does not include judicial officers or the courts, does not affect the fact
________________________
58 Radio Pretoria v Voorsitter van die Onafhanlike Kommunikasie-owerheid van SA 2006 3 BCLR 444 (T)
451DE; Plasket C “Unconstitutional administrative action: the case of the King Commission
and the media” 2001 SALJ 659; Hopkins K “Constitutional rights and the question of waiver:
how fundamental are fundamental rights” 2001 SAPR/L 122 124. Cheadle MH, Davis DM and
Haysom NRL South African Constitutional Law: The Bill of Rights (2002) 2 state: “Conduct may
give rise to the testing or development of a rule under the Bill of Rights but should never itself
be the subject of constitutional enquiry.”
59 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 141–142.
60 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 7 BCLR 687 (CC),
2004 4 SA 490 (CC) paras 45–46. See ch 26 para 2.4.2 below.
61 S 8(1). The judiciary was omitted from s 7(1) of the Interim Constitution at the insistence of
negotiators who opposed the application of the Bill of Rights to private law – Du Plessis LM
“The genesis of the chapter on fundamental rights in South Africa’s transitional constitution”
1994 SA Public Law 13.
that judicial officers and the courts are bound by the Bill of Rights. According to
section 8(1), the Bill of Rights binds the judiciary, and all organs of state.
Judicial officers are appointed, paid and dismissed by other organs of state, and
the Constitution entrusts them with power to make binding decisions in disputes
that can be resolved by the application of law. The fact that the courts apply legal
rules to disputes only as independent third parties, does not exclude the possibility
that their actions may have a bearing on the rights in the Bill of Rights and, in
particular instances, infringe the rights:
• The courts fulfil a key function in ensuring observance of the Bill of Rights by
others. It is inconceivable that they can fulfil this function without being bound
by the Bill of Rights.
• The courts must provide appropriate relief to those whose rights are threatened
62
or infringed and failure by the courts to ensure the effective operation of the
enforcement of court orders contributes towards the infringement of rights.63
64
• Certain rights in the Bill of Rights, particularly those regarding a fair trial, can
be infringed by a court without the intervention of any legislative or executive
body.
• When courts take decisions amounting to administrative acts, they are bound by
65
all the provisions of the Bill of Rights in the same way as administrative bodies.
• The courts, when interpreting any legislation, and when developing the common
law, have a general constitutional duty to promote the spirit, purport and objects
66
of the Bill of Rights, and they have a specific duty to develop the common law to
give effect to a right in private relations when the existing statutory and common
67
law do not do so sufficiently.
• Failure to apply, or the incorrect application of, the provisions of a Bill of Rights
is a ground for appeal against the decisions of lower courts – even in respect of
the highest judicial instance of appeal, certain forms of control exist in all sys-
68
tems.
Any power or discretion that a court exercises and that affects rights in the Bill of
Rights must comply with the Bill of Rights. Both the rules that the courts develop to
exercise their discretion in this regard and the application of these rules to the
particular instances must be constitutional.
Examples of powers and functions of the courts that must comply with the Bill of
Rights are the power of courts provided for in section 173 of the Constitution to regu-
69
late their own procedure; the discretion of a court to order the provision of security
________________________
62 In terms of s 8(1) and s 38.

63 Bannatyne v Bannatyne 2003 2 BCLR 111 (CC) para 31. See also Heystek v Heystek 2002 2 SA 754
(T) 757 – in terms of s 8(1) a court as upper guardian of every child is bound by the rights of
children in s 28.
64 Ss 34 and 35(3). See President of the RSA v SARFU 1999 7 BCLR 725 (CC) para 28.
65 Eg, maintenance and sequestration orders and sentencing. See Wiechers Administrative Law
(1985) 10 in respect of the application of administrative law to these decisions.
66 S 39(2). Bogaards v The State 2012 12 BCLR 1261 (CC) para 47: “[A]ll conduct of the judiciary,
including the manner in which the common law is interpreted by judges, must be harmonious
with the Constitution.”
67 S 8(3).
69 SABC Ltd v National Director of Public Prosecutions 2007 2 BCLR 167 (CC), 2007 1 SA 523 (CC) paras
37 and 90–93.
70
for costs in terms of section 13 of the Companies Act 61 of 1973; a court’s discretion
71
concerning the admissibility of bail records in criminal proceedings; and the discre-
tion of a court when it has to decide whether a witness has a “just excuse” for not an-
swering questions for the purposes of section 205 of the Criminal Procedure Act 51 of
72
1977.
7 Private persons and institutions

Section 8(2) of the South African Constitution provides that a provision of the Bill
of Rights binds natural and juristic persons if, and to the extent that, it is applicable,
73
taking into account the nature of the right and of any duty imposed by the right.
This provision clearly states that, in principle, private persons may not infringe the
constitutional rights of other private persons. Section 8(2) affirms that the general
legal principles that one private person may not infringe another private person’s
rights and that persons whose rights have been infringed may enforce their rights,
apply also to the rights in the Bill of Rights.74 Section 8(2) puts an end to the
misconception that because bills of rights were historically intended to provide
individuals with the protection against the state, the conduct and interests they
protect do no need the same degree of protection in private relations or must be
75
dealt with in separate private law systems.
(a) To which instances does this provision apply?
As indicated in paragraph 6.2, the Bill of Rights applies to all rules of private law in
terms of section 8(1). Whenever the constitutionality of common law or statutory
private law is questioned, section 8(1) applies, and not section 8(2).76 Section 8(2) only
applies to instances in which the constitutionality of the legal rules in terms of which
persons act is not questioned, but the persons concerned, in the exercise of their
77
rights, powers or freedoms, interferes with the rights of others. To the extent that
valid (constitutional) private law rules do not limit rights in the Bill of Rights, private
persons may decide freely how they exercise their rights.78 According to section 8(2),
________________________
70 Giddey NO v JC Barnard and Partners 2007 2 BCLR 125 (CC), 2007 5 SA 521 (CC) paras 28–30.
71 S v Basson 2005 12 BCLR 1192 (CC) para 117.
72 Nel v Le Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562 (CC).
73 The Interim Constitution did not have provisions such as s 8(2) and s 8(3), and, in principle,
Du Plessis v De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC) does not provide authority for
their interpretation. However, see Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401
(CC) para 31; Worcester Muslim Jamaa v Valley 2002 6 BCLR 591 (C) para 93.
74 The right in s 38 to approach a competent court for appropriate relief when a right in the Bill
of Rights is infringed or threatened applies also to private relations. See ch 27 para 3.
75 The words in s 8(2) phrase “a provision of the Bill of rights binds private and juristic persons”
provides a clear answer for South African purposes to the debates on whether compa-
nies/corporation should have binding legal human rights obligations. See in this regard the
sources quoted by Bilchitz D “Privacy, surveillance and the duties of corporations” 2016 TSAR
46 n 5–7.
76 Even when courts “develop” the common law in terms of s 8(3) (see below), they do so be-
cause the existing common law and statutory law do not afford sufficient protection to a par-
ticular right. From a “the law never runs out” perspective, this may be viewed as an instance in
which the courts find that the existing legal rules that apply to the situation are unconstitu-
tional, and they replace them with new rules.
77 See S v Van Rooyen 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) para 37. Contra Cheadle MH,
Davis DM and Haysom NRL South African Constitutional Law: The Bill of Rights (2002) 4.
78 This is also the case when they exercise freedoms which are not formally provided for in the
Bill of Rights or in any other legal rule. See ch 16 para 6.
the Bill of Rights applies when this freedom is exercised – rights and freedoms may
not be exercised inconsistently with the Bill of Rights.
Theoretically, it may possibly be argued that even these instances involve only the con-
stitutional validity of the relevant private law rules and not the application of the Bill of
Rights to individual action: the rules are valid, because they do not authorise unconsti-
tutional action, and if individuals were to exercise their personal freedom inconsis-
tently with the Bill of Rights, the relevant rule of private law as such is transgressed. It
may possibly also be argued that a court’s application of the Bill of Rights to a particu-
lar instance, for the purposes of the doctrine of precedent, amounts to the formula-
tion of a new legal rule which must be followed by particular other courts in analogous
cases, and this instance is therefore covered by the courts being bound by the Bill of
Rights. However, these theoretical constructions do not detract from the fact that in
these instances, the Bill of Rights is applied directly to individual actions and not to
legal rules.
Private law rules that limit individual action or provide for the limitation of rights by
agreement are often (unavoidably) formulated in general and vague terms. Persons
who conclude a contract may not exercise their freedom of contract against good
morals, and for the purposes of the law of delict, wrongful action (limitations to the
exercise of rights for the protection of the rights of others) is determined by
applying concepts such as the boni mores, social adequacy, and reasonableness. When
these concepts are applied to particular, factual situations, it is often done by a
process whereby rights and interests are weighed or balanced – the right which is
limited on the one hand, against, the public interests or the rights of others, on the
other hand. According to section 8(2), the Bill of Rights must be applied to this
weighing process when rights in the Bill of Rights are involved. The courts have
always been involved in such processes and there does not seem to be any good
reason why it would be inappropriate for them to do so within the framework of the
79
Bill of Rights. In these instances the constitutionality of the legal rules which
contain the general concepts (for example, the rule that contracts must not offend
the boni mores) is usually not questioned, but it is often contended that the actions
performed in terms of those rules (for example, the contents of a particular
contract) are inconsistent with the Bill of Rights. The Bill of Rights must also be
applied directly in these instances.
An alternative construction that is often used under the influence of German law, is that
when the Constitution is applied to private relations, it should not be done “directly” by
applying rights and limitation clauses, but “indirectly” by applying the constitutional val-
80
ues in section 1 of the Constitution. In these arguments scant attention is paid to
________________________
79 See Sprigman C and Osborne M “Du Plessis is not dead: South Africa’s 1996 constitution and
the application of the bill of rights in private disputes” 1999 SAJHR 42–43 for an opinion that
the courts are incapable of performing this task; the opinion is based upon an unease “about
the entire enterprise of judicial review that has developed thus far in South Africa” and a hope
that South Africa will never make a commitment towards the enforcement of individual rights in
purely private disputes. This is a refutation of the implications of the supremacy of the Constitu-
tion and of the role that the courts have played for centuries in the development of all branches
of private law.
80 See eg Brand D “The role of good faith, equity and fairness in the South African law of con-
tract: the influence of the common law and the constitution” 2009 SALJ 27; Brisley v Drotsky
2002 12 BCLR 1229 (SCA), 2002 (4) SA 1 (SCA) para 95; Afrox v Health Care Bpk v Strydom 2002
6 SA 21 (SCA) paras 18 and 32; Barkhuizen v Napier 2007 7 BCLR 691 (CC), 2007 5 SA 323
(CC) para 30; Bredenkamp v Standard Bank of SA Ltd 2010 9 BCLR 892 (SCA) para 28; Lubbe G
“Taking fundamental rights seriously: The Bill of Rights and its implications for the develop-
ment of contract law” 2004 SALJ 400.
81
section 8(2). Section 39(2) is emphasised as the source of the “indirect application”.
However, the values in section 1 of the Constitution are being given effect to in all the
82
provisions in the rest of the Constitution, and section 2 of the Constitution provides that
all law and conduct inconsistent with the Constitution are invalid. Notwithstanding the
fact that the provisions of the Constitution that follow on section 1, like any other legal
rules, are inevitably based upon values and principles, they comprise hard, black-letter law
that can and must be applied directly. They embody values, but they are no longer flee-
floating values that merely seep into open-ended private law concepts. It is therefore sig-
nificant that whereas the first court decisions dealing with this issue limited their refer-
83
ences to the constitutional values referred to in section 1 of the Constitution, and to the
84
value system embodied in all the constitutional provisions, the courts are increasingly
referring to the right in the Bill of Rights and the limitation clauses as part of the values.
They are moving in the right direction. The rights and limitation clauses may then just as
85
well be applied directly.
(b) What is the meaning of the qualification in section 8(2) that a provision of the Bill of
Rights binds private persons “if and to the extent that it is applicable”?
This qualification means that there may be instances in which a provision of the Bill
86
of Rights is not capable of being applied to relations between private persons.
87
“Applicable” means “capable of being applied”. Applying the rule does not entail a value
or policy judgment. It does not involve asking whether the Bill of Rights ought to be
applied, but merely whether in that particular instance, a provision of the Bill of
Rights is capable of being applied to those particular private actions, interests and
relationships.88 Is it possible that the conduct and interests protected by a particular right in
________________________
81 See ch 14 para 2.2

82 See ch 1 para 2(c).
83 Brisley v Drotsky 2002 12 BCLR 1229 (SCA), 2002 4 SA 1 (SCA) para 94.
84 Afrox v Health Care Bpk v Strydom 2002 6 SA 21 (SCA) para 30.
85 For a more detailed discussion of this matter, see Rautenbach IM “Constitution and contract:
the application of the Bill of Rights to contractual clauses and their enforcement” 2011
THRHR 510 520.
86 It has been argued that the reference to applicable is superfluous because if no provision of
the Bill of Rights can be applied to a particular private action, the action would simply not be
inconsistent with the Bill of Rights, and that the qualification serves no purpose (Woolman S
“Defamation, application, and the Interim Constitution” 1996 SALJ 451). The qualification was
probably inserted to counter arguments that the application of the Bill of Rights to private law
and private relationships would imply that the existing private law system will necessarily have to
be replaced at all costs by a new constitutionalised private law system.
87 Application in this sentence does not have the same meaning as binding; the rule in s 8(2)
does not have the circular meaning that the Bill of Rights “binds” when it “binds” private per-
sons. This is the basis of the critique of s 8(2) in Bilchitz D “Corporate law and the Constitu-
tion: towards binding human rights responsibilities for corporations” 2008 SALJ 754, 777–778.
He also regards s 8(2) as a useless provision because it does not tell us when a right is applica-
ble (capable of being applied) taking into account the nature of the right and the duties im-
posed by the right. See also Katzew J “Crossing the divide between the business of the
corporation and the imperative of human rights – the impact of section 7 of the Companies
Act of 2008” 2010 SALJ 686 690. In this vein, one could also argue that s 36 is useless because it
does not tell us exactly when a limitation is “reasonable and justifiable in an open and democ-
ratic society ….” and that s 25 is useless because it does not spell out exactly what “arbitrary”
deprival of property means.
88 See the remark (albeit in respect of the constitutionality of a rule and not in respect of indi-
vidual action in terms of a rule) in Gardener v Whitaker 1996 6 BCLR 775 (CC), 1996 4 SA 337
(CC) para 10: “With all respect to the judge, whatever the practical merits of such a rule of law
in the law of defamation (as to which I say nothing) I am bound to say that I can find nothing in
the Bill of Rights can be violated by private person or juristic person who is not an organ of the
state? (In Khumalo v Holomisa the Constitutional Court referred correctly to “the
potential of invasion of that right by persons other than the State or organs of the state”.)89
When the answer is “yes”, the Bill of Rights is “applicable”. Various considerations
may be taken into account to determine whether the Bill of Rights can be applied to
a particular situation:
• Section 8(2) refers to the nature of the right and of the duty imposed by the right. It is,
for example, difficult to imagine that a person’s right to citizenship or rights to a
fair trial in criminal cases can be infringed by another private person. The duty
of the state to provide courts in order to enable individuals to have their legal
disputes settled, or the duties of the state in respect of expropriation, will, for ex-
ample, not become an issue between private parties. It is, however, not advisable
to compile formal lists of which rights and duties can be affected and which can-
not, because all the details of the particular case under consideration must always
be taken into account.
“The nature of any duty imposed by the right” could give rise to arguments that
90
the social rights entail duties for the state only and that they can never be rele-
vant in private relations. Such an approach will be short-sighted. It is not incon-
ceivable that situations may occur in which these rights may, in the absence of
appropriate statutory arrangements, be relevant in relations between private indi-
91
viduals. The Constitutional Court held that section 8(2) does not exclude the
92
possibility of imposing positive duties under social rights on private persons.
• “Taking into account the nature of the right and the nature of any duty imposed
by the right” must not be interpreted to mean that only these factors must be
considered. All circumstances relating to the particular case must be taken into
account. In Daniels v Scribante the Constitutional Court also referred to the his-
tory behind the right, how best the right can be achieved and whether “letting
private persons off the net [would] not negate the essential content of the
93
right”. The nature of the relationship between the private persons concerned
can play an important role. Administrative law has always been applied to un-
equal relations between private persons, for example, between a member of a
voluntary
________________________
Chapter 3 which remotely suggests that in the balancing of competing rights it can be of any
moment whether the person asserting one of those rights is a plaintiff or a defendant” – italics
added. See also Kotze en Genis (Edms) Bpk v Potgieter 1995 3 BCLR 349 (C) 352H–I, 1995 3 SA
783 (C) 786H–J; and Rautenbach IM and Reinecke MFB “Kontrakte ter beperking van han-
delsvryheid en die grondwetlike reg om vrylik aan die handelsverkeer deel te neem” 1995
TSAR 560.
90 Eg, the rights in respect of the environment, education, housing, health services, food, water
and social security.
91 Eg, a situation in which an employer expects an employee to live at the workplace, but fails to
supply adequate accommodation and access to clean water. Even in the absence of a Bill of
Rights and appropriate statutory arrangements, such a situation would probably sooner or lat-
er have been dealt with by a dynamic application of contractual or delictual boni mores and rea-
sonableness.
92 Daniels v Scribante 2017 8 BCLR 949 (CC), 2017 4 SA 341 (CC) para 39. The court held that s
26(5) of the Constitution (the right to legally secure tenure or comparable redress to persons
or communities with insecure tenure as a result of past racial discrimination) obliges owners
within the framework of the Extension of Security and Tenure Act 62 of 1997 to assist occupi-
ers to live in houses that do not violate their human dignity (paras 39, 40). See also Baron v
Claytile (Pty) Ltd 2017 10 BCLR 1225, 2017 5 SA 329 (CC) para 37.
93 Daniels v Scribante 2017 8 BCLR 949 (CC), 2017 4 SA 341 (CC) para 39.
94
association and the governing body of the association. It stands to reason that
the violations of rights in private relations is more likely to occur when the par-
ties are involved in unequal relations than would be the case in equal relations.
The nature of the relationship is, however, not the only factor to be taken into
account.
Section 8(3) provides that when a court, in the course of applying the Bill of Rights
to private relations in terms of section 8(2), finds that the common law and legis-
lation do not afford sufficient protection to a right, the court must develop the com-
95
mon law in order to provide for the necessary protection.
This section clearly implies that when the Bill of Rights is applied to private relation-
ships, existing statutory and common law must be applied to afford protection to the
rights involved, and that only when the existing remedies do not do so efficiently the
96
courts must develop the common law to afford protection. Because such an
exercise involves the development of the common law in respect of private relations
in which the rights of other private persons are also at issue, it will often transpire
that the rights of others are limited by the newly developed rule. That is why section
section 8(3)(b) provides that these limitations must comply with the provisions of
the general limitation clause.
Section 8(3) does not contain the principle that the Bill of Rights applies to all law
regulating private relations and that the Bill of Rights binds private persons. That is
done in the first part of section 8(1) and in section 8(2). It is also wrong to refer to
section 8(3) as the source of either the indirect application of the Bill of Rights to the
97
common law or the principle that the Bill of Rights applies to private agencies
98
through the mediation of the common law only.
Section 8(3) becomes operative only after:
• a decision has been made in terms of section 8(2) that a right in the Bill of
Rights is capable of being applied to the particular private relations being consid-
ered; and
• the relevant provisions of the Bill of Rights, including the general or special
limitation clauses, have been applied to the particular case at hand; and
________________________
94 Eg, a situation in which an employer expects an employee to live at the workplace, but fails to
supply adequate accommodation and access to clean water. Even in the absence of a Bill of
Rights and appropriate statutory arrangements, such a situation would probably sooner or lat-
er have been dealt with by a dynamic application of contractual or delictual boni mores and rea-
sonableness.
95 This provision should allay fears that there are not enough remedies to satisfy the application
of the Bill of Rights to private relationships, as expressed by Sachs J in Du Plessis v De Klerk 1996
5 BCLR 658 (CC), 1996 3 SA 850 (CC) para 187. S 8(3) must be read with s 173 which provides
that the Constitutional Court, the Supreme Court of Appeal and the high courts have the in-
herent power to develop the common law. S 173 was included because it was said in Du Plessis v
De Klerk 1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC) paras 52 and 53 that under the Interim
Constitution, the Constitutional Court had no general or inherent jurisdiction and court not
rewrite the common law, unlike the Supreme Court of Appeal with its inherent jurisdiction.
96 The protection of constitutional rights by criminal law could also be taken into account to
determine whether rights are sufficiently protected in private relations. Currie I and De Waal J
The Bill of Rights Handbook (2013) 207–208.
97 As stated in Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC) para 32 and
implied in Thebus v R 2003 10 BCLR 1100 (CC), 2003 6 SA 505 (CC) para 25 and Du Plessis v
Road Accident Fund 2003 11 BCLR 1220 (SCA), 2004 1 SA 359 (SCA) para 35.
98 See eg Lubbe G “Taking fundamental rights seriously: The Bill of Rights and its implications
for the development of contract law” 2004 SALJ 395.
• a conclusion has been reached that the existing statutory law and common law
do not afford sufficient protection to a constitutional right in that particular situa-
tion.99
The court must then develop the common law to provide efficient protection, and
when the newly developed rule affects the limitation of the right, the limitation must
comply with section 36(1).
________________________
99 Only to the extent that it can be argued that the common law and statutory law are invalid
because they do not provide a remedy for the violation of a right in a particular private rela-
tion, does s 8(3) deal with the invalidity of legal rules. In Dendy v University of the Witwatersrand
2007 8 BCLR 910 (SCA) it was said that the development of the common law could only be
undertaken when the common law is not broad enough to afford appropriate relief in a par-
ticular case. Although this statement was made in the context of the development of the com-
mon law in terms of s 39(2), this is exactly what s 8(3) regulates.
Chapter 18
The limitation of rights
1 General 309
2 The general limitation clause in the South African Bill of Rights 310
3 Special limitation clauses 323
4 The limitation of rights by other provisions of the Constitution 326
1 General
Provision is made in various ways for the lawful limitation of the rights in bills of
rights.
There can be no peace and order in any community when individual rights can be
exercised without limitation at all times. In terms of all bills of rights, it is possible to
limit rights under specific circumstances and in a particular way for the protection of
public interest or the rights of others.
In this book, the word “limitations” does not refer to limitations which the consti-
tution-makers themselves incorporated in their formulations of the right in respect
of, for example, who the bearers of a right may be, what the duties of those bound
by the rights are and what the protected conduct and interests are.
In this book, the word “limitations” refers to limitations that are imposed after the
commencement of the Constitution as authorised in the Constitution.
Limitation clauses contain two important principles. The first is that the right may
be limited after the commencement of the Constitution. The second is that the
authorisation to limit rights is not unqualified, but that it must comply with certain
strict requirements. Modern bills of rights rarely authorise organs of state to limit
rights without any qualification.1 That would amount to a situation where there is no
bill of rights.
Where a bill of rights does not expressly provide for the limitation of rights (as is
the case, for instance, with most rights in the American Bill of Rights and some
rights in the German Bill of Rights) the courts have developed criteria for the limita-
2
tion of rights.
Most modern bills of rights expressly provide for the limitation of rights and this is
also the approach adopted in the South African Bill of Rights. Limitation provisions
________________________
1 So-called claw-back clauses. They are clauses that authorise the unqualified limitation of rights
that are “formally” guaranteed in the constitutional text.
2 Hogg PW “Section 1 of the Canadian Charter of Rights and Freedoms” in De Mestral et al The
Limitation of Human Rights in Comparative Constitutional Law (1986) 6 explains the American
approach as follows: “Since rights to ‘freedom of speech’ and ‘equal protection’ (to name the
most obvious examples) cannot be absolute, the American courts have had to imply qualifica-
tions on the rights in order to accommodate legitimate restraints on free speech and legiti-
mate distinctions between different groups. This has been accomplished as a matter of ‘judicial
legislation’ and without any express direction in the Bill of Rights.”
309
may consist of general limitation clauses that apply to all rights in the bill of rights, and
special limitation clauses that apply only to specific rights.
The European Convention for the Protection of Human Rights and Fundamental
Freedoms mostly contains special limitation clauses. The German Bill of Rights con-
3
tains both general and special clauses. Examples of general limitation clauses are also
found in section 29(2) of the Universal Declaration of Human Rights and section 1 of
the Canadian Bill of Rights. However, it is not possible to treat all rights the same. In
some cases, provision has to be made for particular measures for the limitation of spe-
4
cific rights. This is done in special limitation clauses.
Section 36 of the South African Constitution contains a general limitation clause that
applies to all rights. In addition, there are several sections with additional limitation
5
clauses in respect of specific rights.
2 The general limitation clause in the South African Bill of Rights

2.1 Section 36(1) 310
2.2 The requirement that rights may be limited “only in terms of law of general
application” 310
2.3 The requirement that a limitation must be reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom 314
2.1 Section 36(1)

36(1) The rights in the Bill of Rights may be limited only in terms of law of general ap-
plication to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitu-
tion, no law may limit any right entrenched in the bill of rights.
2.2 The requirement that rights may be limited “only in terms of law of
general application”
This requirement implies the following:
6
(a) The word “law” includes legislation, common law and customary law, provisions of the
7 8
Constitution and legal rules developed by the courts.
________________________
3 Eg, s 19(1) of the German Constitution provides that, in so far as a right may be limited by or
in terms of a law, it has to be a general law which does not apply to a particular situation and
must refer to the section of the Bill of Rights which is being limited. S 19(2) provides that the
essential content of a right may never be impaired.
4 The Canadian bill of rights contains both a general clause and special limitation clauses; eg,
the right to life, freedom and security may be limited only “in accordance with the principles
of fundamental justice” (s 7) and a right not to be detained “arbitrarily” (s 9) is guaranteed.
5 See para 3 below.
6 See, eg, Khala v Minister of Safety and Security 1994 2 BCLR 89 (W), 1994 4 SA 218 (W) 227G:
“. . . In my view, the rules relating to the claim of privilege by the State in respect of a police
Chapter 18 The limitation of rights 311
There have been several instances in which the courts failed to identify the law of gen-
eral application in terms of which rights have been limited. In President of the RSA v
Hugo, Kriegler J held that the exercise by the President of presidential powers to re-
prieve offenders does not constitute a law of general application and Mokgoro J held
that it does,9 but both judgments overlooked the fact that section 82(1)(k) of the Con-
stitution was the law of general application which empowered the President to reprieve
offenders. In Hoffmann v South African Airways the court overlooked section 23 of the
Legal Succession of the South African Transport Services Act 9 of 1989 as the law in
terms of which the SAA has the power to appoint employees and determine their con-
ditions of service.10 In Barkhuizen v Napier, the court overlooked the common law that
authorises and regulates the conclusion of contracts as the law of general application in
terms of which clauses that limit rights are inserted into contracts.11 A view that a com-
pany policy which factually limits the right to privacy is not a law and that the general
limitation clause can therefore not be applied,12 overlooks the fact that the formation
of company policy is most probably authorised by the company statute, the adoption
of which is, in turn, authorised by the statutory and common-law rules that regulate
the conclusion of contracts by companies. These failures to recognise that there was
indeed a law of general application in these instances result from an incorrect inter-
pretation of what the words “in terms of” mean.
(b) The requirement that a right may only be limited “in terms of law of general application”
means that any limitation must be authorised by law. In the general limitation clause of
the Interim Constitution the expression used was “by” law of general application.
The constitution-makers changed it to “in terms of”, and to the extent that it can be
argued that they wanted to change something, “in terms of” cannot be interpreted
to mean “by”. In section 36(1) of the Constitution, “in terms of” means “as author-
ised in”.
(c) When no law that authorises a particular limitation can be identified, the limitation is
unconstitutional. There is then no need to investigate whether the limitation is
“reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom”.
In August v Electoral Commission, it was held that there was no law which authorised the
independent electoral commission to limit the right to vote of prisoners by taking no
13
steps to enable them to vote. In Pheko v Ekhurleni Metropolitan Municipality No 2 the
court held that the municipality misinterpreted its powers in section 55(2)(d) of the
________________________
docket is a ‘law of general application’.” See also Shabalala v Attorney-General, Transvaal 1995 12
BCLR 1593 (CC), 1996 1 SA 725 (CC) paras 60 and 61 on the limitation of rights by ethical rules
of practice.
7 Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) 2007 9 BCLR 958 (SCA) para 8.
8 Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2006 4 BCLR 492 (T) 537.
9 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) para 76 n 7 and para 104 respectively.
10 2000 11 BCLR 1211 (CC), 2001 1 SA 1 (CC).
11 Barkhuizen v Napier 2007 7 BCLR 691 (CC), 2007 5 SA 323 (CC). See also Dladla v City of
Johannesburg 2018 2 BCLR 119 (CC) para 52. In this case the court likewise held that a factual
limitation of rights of people accommodated under a contract between the city and the shelter
was unconstitutional because the contract was not a law of general application. The invalidity
of the limitations should have been based on no compliance with the other requirements of
the general limitation clause. Referring to the Barkhuizen case, Dafel M “The negative obliga-
tion of the housing right: an analysis of the duties to respect and protect” 2013 SAJHR 603 con-
tends that s 36 can never apply to the justification by non-state actor’s non-compliance with
their negative duties not to interfere with social rights: “Section 36 cannot be used as it is inca-
pable of application to the conduct of non-state actors because it requires a ‘law of general ap-
plication’ to limit the right.”
12 Bilchitz D “Privacy, surveillance and the duties of corporations” 2016 TSAR 65.
Disaster Management Act 57 of 2002 in relocating people indefinitely from a disaster
14
area without a court order and that the municipality therefore acted ultra vires.
In (a) above reference was made to instances in which the courts and writers failed to
identify a law of general application because they were under the impression that “in
terms of” of law means “by” law and not “as authorised by law”. In some of these in-
stances they felt that there must nevertheless be ways in which to justify the limitations,
and they used the followings methods to do so: (i) The term “law” may be broadened
15
artificially to cover as many actions as possible. However, there are limits to how far
this can be done. (ii) The special limitation clauses of specific rights are used as
vehicles to apply the general limitation clause to actions that limit the specific right
and to which the court in these cases think that section 36 do not apply, for exam-
ple, administrative action that limits rights are justifiable if they are “lawful”, “rea-
sonable” and “procedurally fair” for the purposes of section 33, individual instances
of the deprival of freedom are justifiable if they are not undertaken “arbitrarily and
without just cause” in section 12(1)(a), and failure by the state to provide access to
adequate housing, food, water, health care and social services is justifiable on a show-
ing that the state has “taken reasonable legislative and other measures within its
available resources to achieve progressive realisation of each of the rights” in sec-
16
tions 26(2) and 27(2). This means that the general limitation clause is applied un-
17
der another name. (iii) When the other methods fail, the courts fall back on the
rule of law as a founding value in section 1 of the Constitution by arguing that there
could be justification for the action if the perpetrator can show that the action was
not arbitrary and that it was rationally related to a purpose, which are also limitation
considerations in terms of section 36(1)(d). These alternatives are not necessary
when “in terms of law” is understood to refer to the authorisation to limit rights and
not to law as the only instrument to use “in terms of law” and when it is understood
that section 36 applies to the limitation of rights by all forms of limitation authorised
by law. It can also be argued that the alternatives are unconstitutional: to the extent
that their authors believe (mistakenly) that the limitation is not contained in a “law
of general application”, the first sentence of section 36 is not complied with and it is
unconstitutional to apply constructions that bypass the clear requirement.
(d) All legislative bodies may limit rights. Section 36(1) does not reserve the power to
limit rights to some legislatures. Legislative bodies may nevertheless limit rights only
when they regulate matters within their sphere of competence. In this regard the distribu-
18
tion of powers between the levels of government is of particular significance.
(e) Effective state administration is possible only when executive bodies have some
degree of discretion in executing their functions. The phrase “in terms of” law of general
19
application means that legislative organs may authorise executive organs to limit rights. As
________________________
14 2015 6 BCLR 711 (CC), 2015 5 SA 600 paras 37, 38.

15 See also Radio Pretoria v Voorsitter van die Onafhanklike Kommunikasie-owerheid van SA 2006 3
BCLR 444 (T) 451HI; Hoexter C and Lyster R II The New Constitutional and Administrative Law
(2002) 179; Plasket C “Unconstitutional administrative action: The case of the King Commis-
sion and the media” 2001 SALJ 659 660; Hopkins K “Constitutional rights and the question of
waiver: how fundamental are fundamental rights” 2001 SAPR/L 122 124.
16 Woolman S and Botha H “Limitations” in Woolman et al (eds) Constitutional Law of South Africa
(2007) para 34.7(a) at 34–53 n 3.
17 See Rautenbach IM “The limitation of rights and ‘reasonableness’ in the right to just adminis-
trative action and the rights to access to adequate housing, health services and social security”
2005 TSAR 627 and “The limitation of rights in terms of provisions of the Bill of Rights other
than the general limitation clause; a few examples” 2001 TSAR 617.
18 See ch 11 para 2.3.2.
19 The question is therefore not “whether a [limiting] measure is contained in a law”, as was
stated incorrectly in Hoffmann v South African Airways 2000 11 BCLR 1211 (CC), 2001 1 SA 1
(CC) para 24, but whether the person or institution who limits a right has been lawfully
discussed in chapter 9 paragraph 7.2 (b), a legislature may not delegate completely
to an executive organ of state the capacity to limit a right. In describing the discre-
20
tion to limit rights in an authorising law, certain requirements must be met.
(e) Legal rules limiting rights will qualify as “law” for the purposes of section 36(1) only if
they are accessible, comprehensible and predictable.21 The requirement has always been
applied to administrative or any other actions performed in terms of law, for exam-
22
ple, the contents of search and seizure warrants. It now also applies to common
23
law, customary law and all legislation, including acts of parliament that limit rights.
A rule is too vague to qualify as law “where the provision [is] utterly meaningless and
unworkable and where nothing in the rest of the Act [assists] on giving meaning to
24
it”. A law that contains an authorisation to exercise a discretion to limit rights must
contain enough information so that “those who are affected by the exercise of broad
discretionary powers will … know what is relevant to the exercise of those powers or
25
in what circumstances they are entitled to seek relief from an adverse decision”.
Legislative errors (for example, a wrong cross-reference) in a legislative provision
that limits a right could render the provision impermissibly vague and impossible to
26
apply and for that reason unconstitutional.
(f) The qualification “law of general application” means that a legislature may not in a law
provide for the limitation of the rights of a specific person or a single or unique set of circum-
27
stances. Although this is a manifestation of the general equality principle, the provi-
sion is also based on an important principle arising from the separation of powers.
Legislatures may enact only general provisions regarding the limitation of rights and
when these general clauses are applied to individual cases, it has to be done by the
executive or judicial bodies that have to act in accordance with the strict requirements
________________________
authorised to perform the action concerned. Hopkins K “Constitutional rights and the ques-
tion of waiver: how fundamental are fundamental rights” 2001 SA Public Law 122 124; Plasket C
“Unconstitutional administrative action: the case of the King Commission and the media” 2001
SALJ 659 659 and Currie I, Hoexter C and Lyster S The New Constitutional and Administrative Law II
Administrative Law (2002) 211 make the same mistake.
20 See (e) and para 2.3.2(e) below.
21 President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC) para 102.
22 Minister of Safety and Security v Van der Merwe 2011 7 BCLR 651 (CC), 2011 5 SA 61 (CC) paras
56, 59. For more details on this judgment, see ch 22 para 2.2.
23 In S v Friedman 1996 3 BCLR 347 (W) the court held that the common-law definition of fraud
was not too vague to comply with the requirements of s 33(1) of the interim Constitution.
24 National Credit Regulator v Opperman 2013 2 BCLR 1700 (CC), 2013 2 SA 1 (CC) para 51. In
SATAWU v Garvas 2012 8 BCLR 840 (CC), 2013 1 SA 83 (CC) paras 34-50 the term “irrational”
was used as a synonym for “meaningless”, “unintelligible” and “incomprehensible”.
para 47. In Affordable Medicines v Minister of Health of RSA 2005 6 BCLR 529 (CC), 2006 3 SA 247
(CC) paras 30–39, this principle was watered-down when the court held that a law permitting a
minister to prescribe the conditions upon which a licence may be issued did not violate the
principle, because apart from “constitutional constraints”, the exercise of the discretion had to
comply with administrative law principles.
26 Print Media South Africa v Minister of Home Affairs 2012 12 BCLR 1364 (CC), 2012 6 SA 443 (CC)
para 84.
27 The American Constitution s I(9) and (10) prohibits the adoption of a bill of attainder. See
Antieau C I Modern Constitutional Law (1969) 423; Tribe L American Constitutional Law (1988) 641–
663. The German Constitution contains a similar provision – see Herzog R “Art.19 Abs. 1”
(1981/1988) in Maunz T and Dürig G Grundgesetz Kommentar 191 13–22 and for a brief survey Jarass
HD and Pieroth B Grundgesetz für die Bundesrepublik Deutschland (2016) 483–484.
in the Bill of Rights.28 These requirements may not be circumvented by employing

legislative measures to limit rights in individual cases.
(g) The internal rules of a private organisation by or in terms of which the rights of members
of that organisation are limited do not constitute “law of general application” as referred to
in section 36(1). “Law of general application” in section 36(1) refers to rules of the
legal system and not to the internal rules of organisations.29 For the purposes of
section 36, these internal rules are the limiting action of the organisation as a collec-
tive entity, which action must be performed “in terms of” a law of general applica-
tion. The “law of general application” in terms of which these actions are under-
taken is the common-law, statutory or constitutional authorisation (for example, the
right to freedom of association in section 18) of private organisations to adopt and
enforce internal rules.
2.3 The requirement that a limitation must be reasonable and justifiable

in an open and democratic society based on human dignity, equality
and freedom
2.3.1 The balance between the limitation and its purpose 314
2.3.2 The factors which must be taken into account to apply the test 314
2.3.1 The balance between the limitation and its purpose

The requirement that a limitation must be reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom means that there
must be a balance between the limitation and the purpose of the limitation.
What kind of balance must exist? It must be a balance that one would normally find in a
particular kind of society, namely “in an open and democratic society based on
human dignity, equality and freedom”, and not in a closed, undemocratic society in
30
which the human dignity, freedom and equality of people are not cherished. The
preamble and section 1 of the Constitution contain values and principles on which
31
this kind of society is founded, for example, democratic values, social justice, fun-
damental human rights, improving the quality of life of all citizens and freeing the
potential of people, non-racism, non-sexism, and supremacy of the constitution and
the rule of law.
2.3.2 The factors which must be taken into account to apply the test
The Constitution refers to five factors which must be taken into account. Before
these factors are discussed, it is important to determine what the role and nature of
these factors are.
• The factors in section 36 are not the only matters to be considered. There may also be
others, but, in most other states with justiciable bills of rights, these factors are
taken into account to determine whether particular limitations comply with gen-
eral criteria such as “reasonable”, “necessary” or “justifiable”.
________________________
28 Eg, in ss 33, 34 and 35 of the Constitution.

29 Taylor v Kurtstag 2005 7 BCLR 705 (W), 2005 1 SA 362 (W) para 45.
30 See in respect of the concept “open society”, Jordaan DW “The open society” 2001 THRHR
107.
31 Government based on the will of the people, universal adult suffrage, a national common
voters’ roll, regular elections, a multi-party system, accountability, etc.
The factors are taken into account in the application of the American constitu-
32
tional provisions relating to equality and due process of law., the German pro-
33
portionality principle which has been developed by the courts, the requirement
in the European Convention that the limitation of certain rights must be “neces-
34 35
sary”, the reasonableness requirement in respect of certain rights in India, the
36
limitation of rights in Japan, and the requirement in the Canadian general limi-
tation clause that limitations must be “reasonable and demonstrably justifiable in
37
an open and democratic society”. They were also used by the South African
Constitutional Court to apply the general limitation clause in the interim Consti-
38
tution.
39
• Section 36(1) does not prescribe any particular order in which the factors must be considered.
Although a particular court or commentator will consider the factors in an order that
40
suits their predilections, convenience and understanding, it is not advisable to follow
any predetermined, strict order. As will be indicated, all the factors relate to one an-
other, they overlap to a greater or lesser extent, and they all serve a single purpose,
namely to assist us in applying the general test to a particular limitation.
• The factors have not been formulated as criteria or tests.
It has not been indicated what weight should be attached to the nature of the right,
the importance of the purpose, and the nature and extent of the limitation; nor what
the exact relation between the purpose and the limitation should be; and it is not stat-
ed that when any less restrictive way of achieving the purpose is identified, such limita-
tion should have been applied. They neither replace the general test in the first part of
section 36(1) nor are they supplementary tests. In any particular case, the weight at-
tached to each one of them and the balance between them must be determined in
view of the general test – reasonableness and justifiability in an open and democratic
society based on human dignity, equality and freedom.
• The requirement that the factors must be taken into account obliges those who limit rights
and those who review limitations to pay attention to matters that are essential for the proper
application of the general test.
The way in which they do so is usually revealed in the reasons they give for their con-
41
clusions. The requirement serves to counter a priori preferred positions on what the
general test means and to enhance rational choices and decisions in concrete cases.
________________________
32 For a useful summary, see Days DS “Equality rights in the United States” in De Mestral et al
(n 2) 237. Sullivan K “Unconstitutional conditions” 1989 Harvard Law Review 1457 states: “The
justices must characterize the governmental action said to violate substantive rights, they must
specify the individual interests affected, and they must assess the purposes offered to explain
and justify the resulting distribution of costs and benefits.”
33 Currie The Constitution of the Federal Republic of Germany (1994) 20–21 307–310; Jarass HD and
Pieroth B Grundgesetz für die Bundesrepublik Deutschland (2016) 554–559.
34 Ss 8–11 and s 2 of the Fourth Protocol.
35 Reddy BPJ and Dhavan R “The jurisprudence of human rights” in Beatty DM (ed) Human Rights
and Judicial Review (1994) 213–215.
36 Sonobe I “Human rights and constitutional review in Japan” in Beatty DM (ed) Human Rights
and Judicial Review (1994) 146–148.
37 Hogg PW Constitutional Law of Canada (1999) 714. The formulation of the test in R v Oakes
(1986) 26 DLR (4th) 200 has been followed by many South African writers and provincial
courts to apply the general limitation clause of the interim Constitution.
38 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 104.
39 For an example of a provision that prescribes an order in which certain steps must be taken, see s
90(1) of the Constitution in respect of the appointment of an Acting President.
40 See the concerns expressed on the order in which the factors appear by Woolman S “Out of
order? Out of balance? The limitation clause of the final constitution” 1997 SAJHR 108–109.
41 Taking account of these factors is so essential for any weighing or proportionality analysis that
even when reasons are given without reference to the factors in a limitation analysis, those
• Considering the factors enables the development of different standards within the framework
of the general test to be applied to different rights, different purposes of limitations and dif-
ferent forms of limitation.
The Interim Constitution identified rights, the limitation of which was not only re-
42
quired to be “reasonable”, but also “necessary”. “Reasonableness and necessity” im-
plied a stricter standard than mere “reasonableness”; “reasonableness” afforded those
43
limiting rights a wider discretion to limit rights than “reasonableness and necessity”.
44
The new Constitution does not contain such a distinction. The omission does not
preclude the development of different standards. In fact, the inclusion of the re-
quirement that the factors must be considered, clearly implies that within the broad
framework of the general test, the Bill of Rights does not envisage a single standard for
45
all limitations. At the same time, this approach need not result in an ad hoc standard
for every conceivable limitation. Like in other systems without reference in the consti-
46
tution to different standards, the precedential effect of decisions will undoubtedly
lead to different standards being developed and applied to different rights or aspects
of rights, different purposes for the limitation of rights, and different forms of en-
croachment upon the protected sphere of rights.
The factors to be taken into account are the following:
(a) The nature of the right 317
(b) The importance of the purpose of the limitation 318
(c) The nature and extent of the limitation 319
(d) The relation between the limitation and its purpose 320
(e) Less restrictive means to achieve the purpose 322
47
(To illustrate each factor, quotations are appended from the judgment in S v Williams
in which the Constitutional Court declared unconstitutional juvenile whipping as a
sentence in terms of section 294 of the Criminal Procedure Act 51 of 1977, because it
was inconsistent with the prohibition of “cruel, inhuman and degrading punishment”
in section 11(2) of the Interim Constitution.)
________________________
reasons reflect always and everywhere in the world attitudes towards the weight attached to the
factors in s 36(1)(a) to (e).
42 The rights in the interim Constitution in ss 10, 11, 12, 14(1), 21, 25, 30(1)(d) and (e), and the
rights in ss 15, 16, 17, 18, 23 and 24 in so far as these rights relate to free and fair political activ-
ity.
43 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 339; Coetzee v Government of
the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10 BCLR 1382 (CC), 1995 4 SA
631 (CC) paras 55–60; S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC), 1997 4 SA
1176 (CC) para 166.
44 This so-called bifurcated approach was probably abandoned because (a) the constitutional
entrenchment of a fixed list of ranked rights is a drastic measure on which it is extremely diffi-
cult to reach agreement during negotiations; and (b) the development of stricter standards for
the limitation of rights depends, generally or in respect of particular circumstances, not only
on the nature of the rights concerned, but may also be affected by the importance of the pur-
pose of the limitation and the nature and extent of the limitation.
45 However, in First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702
(CC), 2002 4 SA 768 (CC) para 65, the court by stating that the test for “arbitrary” in s 25(1)
comprises a weaker test than the test in s 36, implied that s 36 contains a single test with a spe-
cific degree of strictness. Nevertheless, the court in applying the “weaker” test in s 25(1),
referred to all the factors in s 36(1)(a) to (e) (para 100).
46 See on the USA, Tribe L American Constitutional Law (1988) 1451–1466; on Canada, Woolman
S “Riding the push-me pull you: constructing a test that reconciles the conflicting interests
which animate the limitation clause” 1994 SAJHR 66.
47 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC).
(a) The nature of the right
What is being protected by the right, how important is the right and the way in which it is
exercised in an open and democratic society?
When the “nature of the right” is considered, it is necessary to revisit the conduct
and interests protected by a right. During the first phase of an enquiry it must be
determined whether the person whose right has allegedly been infringed is indeed
protected by the right and whether the defendant has indeed factually limited the
right.48 In applying the general limitation clause, the nature of the right is taken into
account in order to determine the kind of purpose that could justify the limitation
of that particular right49 and the scope of the discretion which the person who limits
the right should be afforded in terms of alternative ways to limit the right.50 It is
usually stated that the nature of the right relates mainly to the importance of the
right in an “open and democratic society based on human dignity, equality and
freedom”. However, it also involves the way in which the right has been exercised in
the particular instance and hence the importance of the form in which it has been
exercised. The general limitation clause is applied differently to, for example,
different forms of property, different forms of association and different forms of
expression.51 The nature of the right also includes the identity of the bearer of the
right. Whether the bearer is a natural or juristic person may influence the strictness
with which the general test is to be applied.52 The nature of the rights which are
affected is also not investigated in order to determine a general hierarchical order
of rights so that certain rights are always considered to be more important than
others. When two rights are in conflict (for example, when a newspaper alleges that
freedom of the press is violated when it may not publish certain information con-
cerning X, whereas X says that if the information is published, her right to human
dignity will be violated), it cannot be determined generally that one of the rights will
always prevail. All the factors must be taken into account in every particular case.53
S v Williams paragraph 35: “Whether one speaks of ‘cruel and unusual punishment’ as
in the Eighth Amendment of the United States Constitution and in article 12 of the
Canadian Charter, or ‘inhuman or degrading punishment’ as in the European Con-
vention and the Constitution of Zimbabwe, or ‘cruel, inhuman or degrading punish-
ment’ as in the Universal Declaration of Human Rights, the ICCPR [International
Covenant on Civil and Political Rights] and the Constitution of Namibia, the common
________________________
48 The onus to prove facts in this regard rests with the applicant.
49 See (b) below.
50 See (e) below. At this stage, the onus to prove additional facts in respect of the nature of the
right rests with the person who submits that the limitation is justified in terms of the limitation
clause. See ch 13 para 2.3 above. Those who determine the protective ambit of a right by em-
ploying limitation standards (see ch 16 para 3) obviously find no need to consider the nature of
the right in applying the general limitation clause. See Woolman S “Out of order? Out of bal-
ance? The limitation clause of the final constitution” 1997 SAJHR 108; O’Regan J in New National
Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) para 160.
51 In First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702 (CC),
2002 4 SA 768 (CC) para 100, it was said that “the purpose for the deprivation of [property]
will have to be more compelling than when the deprivation embraces only some incidents of
ownership and those incidents only partially”. See in respect of different forms of expression,
North and Central Council v Roundabout Outdoors (Pty) Ltd 2002 2 SA 625 (D) 634–635.
BCLR 1079 (CC), 2001 1 SA 545 (CC) para 18 – the privacy rights of juristic persons “can nev-
er be as intense as those of human beings”.
53 Port Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC), 2005 1 SA 217 (CC)
para 23; Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) 2007 9 BCLR 958 (SCA)
para 9.
thread running through the assessment of each phrase is the identification and ac-
knowledgement of society’s concept of decency and human dignity.”
(b) The importance of the purpose of the limitation

What is the purpose of the limitation and how important is this purpose in an open and
democratic society?
The person or institution limiting the right must promote or protect a permissible
or lawful interest. If no purpose exists, the limitation is invalid and the other factors
need not even be considered any further.54 Promoting or protecting this interest
must fall within the powers of the person or institution limiting the right.
The purpose of a limitation in section 36 refers to the “benefit” which is to be
achieved by the limitation. It is therefore obviously not correct to state that the
purpose of the limitation is “to limit the right”. Since the exercise of government
authority may never be a purpose in itself, the purpose of a limitation by an organ of
state can also simply not be to exercise the assigned power. The purpose for which
the power has been assigned, must be identified and the limitation must serve that
purpose.
Clarity on the importance of the purpose of the limitation enables us to determine how
important the purpose is in weighing it against the nature of the right and the
55
nature and extent of the limitation. For example, limitations of freedom of infor-
mation could be justified more easily for the purpose of protecting the state’s strate-
gic international interests, than simply for the purposes of administrative convenience.
In this sense, the importance of the purpose may also play a role in determining the
scope of discretion which should be afforded those who limit a right for a particular
purpose – the more important the purpose, the greater the permissible discretion
56
may be.
As indicated, the purpose of a limitation is normally described with reference to
particular community and private interests which must be protected and promoted,
for example, public order and safety, public health, the administration of justice, the
prevention of crime and the rights of others.57 In private relations, the right of a
private person is often limited by the exercising of her or his rights by another
private person, for example, A in the exercising of her freedom of expression limits
58
the right to dignity of B when she publishes defamatory statements about B; church
C in exercising its freedom of association limits the right to freedom of religion of D
when it expels D from the church;59 and E in exercising his right to conclude con-
tracts for the protection of his right to property, concludes a contract to limit the
________________________
1999 1 SA 6 (CC) para 37; Minister for Welfare and Population Development v Fitzpatrick 2000 7
BCLR 713 (CC), 2000 3 SA 422 (CC) para 20.
55 For an analysis of the importance of the purpose of the limitation, see Els H “Die doel van ’n
beperking van ’n handvesreg” 2006 TSAR 253, 537.
56 In Mohlomi v Minister of Defence 1996 12 BCLR 1559 (CC), 1997 1 SA 124 (CC) paras 9–14 the
purpose and the nature and the extent of the limitation was taken into account to determine whether
a right had indeed been factually infringed. However, the purpose of the limitation was again
taken into account in applying the general limitation clause – paras 13 and 14.
57 Para 7.2 (c). The international obligations of the state may also be taken into account to
determine the importance of the purpose of a limitation – Prince v President of the Law Society of
the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA 794 (CC) para 131.
58 Eg, in Independent Newspapers Holdings Ltd v Suliman 2005 7 BCLR 641 (SCA).
59 Eg, in Taylor v Kurtstag NO 2005 7 BCLR 705 (W), 2005 1 SA 362 (W).
right to freedom of trade, occupation and profession of his employee F when F
60
leaves E’s service. In these instances, not only the mere exercise of a right as the
purpose of the limitation should be considered. The benefits which the person who
limits the rights may achieve through the exercise of the right must be determined.
S v Williams paragraph 65: “The traditional objectives of punishment, namely preven-
tion, retribution, deterrence and rehabilitation, are no doubt still applicable.”
Paragraph 66: “In keeping with international trends, there has been a gradual shift of
emphasis away from the ideal of sentencing being predominantly the arena where so-
ciety wreaks its vengeance on wrongdoers. Sentences have been passed with rehabilita-
tion in mind.”
Paragraph 80: “The state stressed the deterrent nature of juvenile whipping. Deter-
rence is, obviously, a legitimate objective which the State may pursue. . . . The concerns
which the provision seeks to address are indeed pressing and they are substantial.”
(c) The nature and extent of the limitation
What method is used to limit the rights and how does the limitation affect the protected interests
and conduct?
There should be clarity on how the limitation is made and how it affects the conduct
and interests protected by the right.61 This information is essential to determine the
relation between the limitation and the purpose of the limitation (factor (d)) and to
determine whether less restrictive ways of achieving the purpose exist (factor (e)).
S v Williams paragraph 45: “The severity of the pain inflicted is arbitrary, depending as
it does almost entirely on the person administering the whipping. Although the juve-
nile is not trussed, he is helpless. He has to submit to the beating, his terror and sensi-
tivity to pain notwithstanding. Nor is there any solace to be derived from the fact that
there is prior examination by the district surgeon. The fact that the adult is stripped
naked merely accentuates the degradation and humiliation. The whipping of both is,
in itself, a severe affront to their dignity as human beings.”
The nature and extent of the limitation are taken into account in developing stricter
requirements for particular limitations: “the Court places the purpose, effects and
importance of the infringing legislation on one side of the scales and the nature and
effect of the infringement caused by the legislation on the other. The more substantial the
62
inroad into fundamental rights, the more persuasive the grounds of justification must be.”
The nature of the limitation includes the method that is used to limit a right. The
kind of discretion which a legislature affords a person or institution to limit a right
constitutes a characteristic of the method to limit. It may be a limited discretion
when the legislature prescribes extensive rules on how to limit the right, or it may be a
wide discretion when no or very few rules are provided. When a right can be limited
very seriously by the exercise of a discretion, an omission by the legislature to pro-
63
vide guidelines on how the discretion must be exercised may be unconstitutional.
________________________
60 Eg, in Coetzee v Comitis 2001 4 BCLR 323 (C); Reddy v Siemens Telecommunications (Pty) Ltd 2007 2
SA 486 (SCA).
61 The nature and extent of a limitation may also refer to the impact of a limitation on rights the
infringement of which does not form the basis of a particular court action – Bel Porto School
Governing Body v Premier of the Western Cape 2002 9 BCLR 891 (CC), 2002 3 SA 265 (CC) para
150 n 150.
62 S v Bhulwana; S v Gwadiso 1995 12 BCLR 1579 (CC), 1996 1 SA 388 (CC) para 18 – italics
added.
para 41. In the latter case, it was also said (paras 46 and 48) that insufficient guidelines cannot
be cured by a legislative provision which provides merely that the limitation clauses in the Con-
stitution must be observed in exercising the discretion; and that it cannot be argued that it is
Even when it is determined that a particular limitation is the only effective way to
achieve the purpose (factor (e) below), the seriousness of the restriction may still be
completely disproportionate to any benefits ensuing from achieving the purpose.
Orderly traffic could for example be promoted optimally if life imprisonment for
traffic offences were to be introduced – alternative measures will probably be less
effective, but the nature and severity of the limitation will be such that achieving the
purpose optimally will have to be abandoned.
(d) The relation between the limitation and its purpose
Can the limitation protect or promote the purpose and, if so, to what extent is the purpose
promoted or protected?
The relation between the limitation and its purpose determines whether the nature
of the limited right and the seriousness and extent of the limitation outweigh the
importance of the purpose of the limitation. Taking into account the detail deter-
mined in factor (c), it must first be determined whether the limitation is capable of
promoting the purpose at all. Limitations may not be imposed which cannot con-
tribute towards achieving the purpose. When this happens, no relation between the
64
limitation and the purpose exists.
The requirement discussed in (b) above, that the limitation must be for a legitimate
purpose, and the requirement that the limitation must be capable of promoting the
purpose are usually considered to form the content of the so-called rational relation-
ship test. The purpose of the test is not only to oblige those limiting rights “to articu-
late purposes that fit” challenged limitations, but particularly to “exclude from
consideration (1) purposes manufactured with the benefit of hindsight but not in
fact motivating a challenged provision; and even more important, (2) purposes
deemed illegitimate or inadequate in the context of the provision being chal-
65
lenged”.
All limitations must at least comply with this requirement. When no other re-
quirements are added (see below), it is the weakest test that may be used, or, stated
differently, the lowest level of scrutiny that a court will apply in reviewing the limita-
tion. Although all limitations must comply with a rational relationship test, stricter
tests are applied depending on the nature and impact of the limitation and the
importance of its purpose. Standards are stricter, or less strict, in respect of the
requirements that are set in respect of, for example,
• how important the purpose of the limitation must be (for example, any legitimate
purpose, compared to an important or a compelling purpose);
• the extent to which the limitation could enhance the purpose (for example,
necessarily, probably or possibly); or
• the extent of the discretion to decide between alternatives when the right is
66
limited (for example, a requirement that the nature and extent of the limitation
must exactly fit the purpose and deviations in terms of alternatives are no
________________________
unnecessary to provide guidelines, because the limitation of a right by an administrative action

would be unconstitutional if it violates the right to administrative justice. See also National Di-
rector of Public Prosecutions v Seevnarayan 2003 7 BCLR 766 (C) paras 67–69.
64 In First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702 (CC),
2002 4 SA 768 (CC) paras 108–109, it was held that no relevant relation exists between the
legitimate and important legislative purpose to exact payment of a customs debt and the total
deprivation of the property of persons who have nothing to do with the debt.
65 Tribe L American Constitutional Law (1988) 1306.
66 See (e) below.
tolerated, compared to a requirement that a wider range of options of ways in which
the purpose may be achieved, is permitted).
The rational relationship test clearly deals with the purpose of a limitation and its
relationship with the limitation, matters which according to section 36(1)(b) and (d)
must be taken into account in dealing with the limitation of a right. The Constitu-
tional Court’s approach to use the rational relationship test to determine the protec-
67
tive ambit of a right, or to apply it as a feature of the rule of law as an alternative to
a limitation analysis,68 is unwise and could have unjust results: it vests those whose
human rights are factually limited with the onus to prove facts in respect of re-
quirements with which the perpetrators have to comply. In Savoi v National Director of
Public Prosecutions warned in clear terms against the unfortunate approaches
followed in other judgments:
“A fair-trial right challenge, being based on the Bill of Rights, would have involved a
two-stage analysis, and the respondents would have had to be alerted that this was the
challenge. This is so because at the second stage – the justification stage – they are en-
titled to place before the court evidence to justify the limitation at issue. Because the
challenge [in this case] is founded on the rule of law, which does not entail this two-stage analy-
sis, the respondents were effectively denied an opportunity to place necessary evidence before
69
court.”
After it has been determined by means of the rational relationship test whether the
limitation is capable of promoting its purpose, the extent to which the limitation
promotes the purpose must also be determined – it may be marginal.
S v Williams paragraph 80: “No clear evidence has been advanced that juvenile whip-
ping is a more effective deterrent than other available forms of punishment.”
Paragraph 86: “. . . the deterrence value is so marginal that it does not justify the impo-
sition of this special punishment . . .”
It may happen that a limitation can indeed promote the purpose, but that it also
affects persons, conduct or interests that have nothing or very little to do with pro-
moting the purpose, for example, when the state wishes to combat crime by pro-
hibiting the possession of dangerous weapons and the definition of the crime holds
everybody criminally liable if found at premises where dangerous weapons are
discovered. The limitation will then be over-broad or over-inclusive. An overbroad
provision “covers more than what is needed to deal with the problem a limitation
70
wishes to alleviate.”
A limitation may also be under-inclusive, for example, when the definition of a
crime in holding certain people criminally liable excludes others whose activities
________________________
67 See, eg, Jooste v Score Supermarket Trading (Pty) Ltd 1999 2 BCLR 139 (CC), 1999 2 SA 1 (CC)
para 10; New National Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC), 1999
3 SA 191 (CC) paras 25–27.).
68 In Ronald Bobroff and Partners Inc v De la Guerre; South African Association of Personal Injury Lawyers
v Minister of Justice and Constitutional Development 2014 4 BCLR 430 (CC), 2014 3 SA 134 (CC)
paras 6–13 the court held that the dispute on appeal should have been dealt with by the court
a quo as rationality review in terms of rule-of-law principles and not as an instance of the limi-
tation of rights in which reasonableness and not rationality plays a role (for a discussion of the
case, see 2014 TSAR 900–913).
69 Savoi v National Director of Public Prosecutions 2014 5 BCLR 606 (CC), 2014 5 SA 317 (CC) para
29. Emphasis added.
31. In this case the court explained that vagueness and over broadness are not synonymous –
even well-defined and clear limitations can be overbroad. See also Case v Minister of Safety and
Security; Curtis v Minister of Safety and Security 1996 BCLR 609 (CC), 1996 3 SA 617 (CC) para 49.
also contribute towards bringing about the evil to be cured. This result could pos-
sibly be inconsistent with the equality principle.
For the sake of completeness, it must also be noted that the South African courts have
not limited their application of a rational relationship test to issues concerning the
limitation of rights as explained above. The Constitutional Court has developed a doc-
trine according to which the rule of law referred to in section 1(c) of the Constitution
requires that the exercise of all public power must be rationally related to a legitimate
government purpose and therefore also to instances where no right in the Bill of
Rights has necessarily been affected. It is not necessary to apply this general doctrine
to the limitation of rights because, as is indicated above in (b), the existence of a ra-
tional relationship (the limitation must be capable to serve the purpose) is a basic re-
quirement that applies to limitation of all rights in terms of the general and special
71
limitation clauses.
(e) Less restrictive means to achieve the purpose
Can the purpose of the limitation be achieved more or less equally effectively by less drastic measures?
Taking into account this factor is important because it obliges those limiting the
rights and the courts reviewing its constitutionality to have due regard to alternative
ways in which the purpose can be achieved.
Taking into account alternatives does not mean that any other alternative way that
would limit the right less severely must be used. The less restrictive alternative meth-
od must be more or less as effective.72 In principle, the state itself decides which method
will be the most effective to achieve the purpose. A court, in reviewing a limitation,
will therefore be hesitant to substitute what the court itself perceives to be the “best”
solution for the state’s decision. Taking into account all the other factors, a range of
alternative measures may exist, all of which may be reasonable and justifiable in an
open and democratic society.73 As long as the person limiting the right employs a
method which falls within the range of reasonable alternatives, the courts will not
interfere with the choice.
S v Williams paragraph 67: “The introduction of correctional supervision with its prime
focus on rehabilitation . . . was a milestone in the process of ‘humanising’ the criminal
justice system. It brought along with it the possibility of several imaginative sentencing
measures . . . house arrest, monitoring, community service and placement in employ-
ment.”
Paragraph 75: “There is indeed much room for new creative methods to deal with the
problem of juvenile justice.”
The discretion that anybody has to limit rights is a limited discretion in the sense
that a choice may be made only from a range of alternatives; each of the possibilities
in the range must comply with constitutional requirement for the limitation of
rights. As long as those who limit rights use methods that fall within this range, the
courts will not interfere with the decision to limit rights. In any particular case, the
________________________
71 For a full discussion of the different context within which the court has applied the rational
relationship test see Rautenbach IM “Means-end rationality in Constitutional Court judg-
ments” 2010 TSAR 768 and “Rationality standards of constitutional judicial review and the risk
of judicial overreach” 2018 TSAR 1.
72 S v Manamela 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC) para 96; De Reuck v Director of Public
Prosecutions (WLD) 2003 12 BCLR 1333 (CC), 2004 1 SA 406 (CC) paras 68–69 and 82.
73 In Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA
794 (CC) para 94 it was said that the range of permissible alternative ways in which to achieve
the purpose depends inter alia on the importance of the purpose and on the extent to which
people may reasonably disagree as to how the purpose may be achieved most effectively.
range of permissible constitutional alternatives may be narrow or broad, depending

on the interplay between the factors in section 36(1). The number of the constitu-
tionally permissible alternatives in this range determines the extent of the discretion
to limit rights, the “margin of appreciation”, the limits to a strict separation of
powers and the extent of judicial deference and respect towards other branches of
government.74 When the purpose of limitation is extremely important, for example
to counter a threat to the health and well-being of the nation, a broad discretion on
how to achieve the purpose may be appropriate. On the other hand, when the
purpose is less important, but the nature and effect of the limitation is far-reaching,
a narrow discretion in the sense that the limitation must be essential or necessary
may be appropriate.
In MEC for Education: KwaZulu-Natal v Pillay, the Constitutional Court stated that doc-
trines of the European Court of Human Rights and the British House of Lords con-
cerning margins of appreciation and the deference which courts should show to
bodies with expertise in the field concerned are “not useful . . . when deciding either
whether a right has been limited or whether a limitation is justified . . . This Court
cannot abdicate its duty by deferring to . . . the view of a party concerning a contention
75
which that particular party is bound to prove”. This is a sound conclusion.
76
In S v Manamela, the court emphasised that the legislative choice concerning the best
means of limiting the right is influenced by considerations of cost, implementation,
priorities of social demands, and the need to reconcile conflicting interests, and that,
in giving appropriate effect to the factor of “less restrictive means”, the court must not
limit the range of legitimate legislative choice in a specific area. However, it must be
noted that the court referred to “legitimate” legislative choices. A court can never
avoid determining the range of the “legitimate” choices. The extent of that range may
indeed be influenced by the way in which considerations of cost, implementation and
social demands justify the limitation of the right in question, but, of course, taking into
77
account its importance and the nature and extent of its limitation.
3 Special limitation clauses

The formulation of a specific right or of other constitutional provisions may contain
requirements for the limitation of that right which qualifies, replaces of overlaps
with provisions of the general limitation clause.
Such a requirement may contain details regarding the person or institution that may
limit the right, the law in terms of which a right may be limited, the procedure to be
followed, the purpose for which rights may be limited, the relationship between the
purpose and the limitation, and the circumstances under which particular rights
may be limited. Whenever any of these matters are dealt with in the wording of the
article which guarantees a specific right, they must be dealt with as special limitation
provisions and not as part of the definition of the protective ambit of the right.
Questions may arise concerning the relationship between a special limitation
clause and the general limitation clause. Should they be applied cumulatively? Does
________________________
74 See Lenta P “Judicial deference and rights” 2006 TSAR 456, 457 and on the development of
deference theories in administrative law, Maree PH and Quinot G “A decade and a half of def-
erence” 2016 TSAR 268.
75 2008 2 BCLR 158 (CC) para 80.
76 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC) para 36.
77 See also S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) paras 67 and 75; Brink v
Kitshoff NO 1996 6 BCLR 752 (CC), 1996 4 SA 197 para 49; Christian Education SA v Minister of
Education 2000 10 BCLR 1051 (CC), 2000 4 SA 757 (CC) para 50.
a special limitation clause qualify the general limitation clause? Does the general
limitation clause have any application where a special limitation clause applies?
As a point of departure, it must be accepted that the general limitation clause applies
to all rights,78 but that, in respect of a particular right, special limitation clauses are
often used to describe more fully or qualify one or more elements of limitation clauses.
This may be done for various reasons, and the purpose for which it is done may
determine the relationship between the general and special limitation clauses.
(a) The purpose of a special limitation clause may be to set more rigid requirements
than those contained in the general limitation clause. If a special limitation clause,
for example, provides that a particular right may only be limited in terms of “an act
of parliament”, a stricter requirement is set than the requirement in the general
limitation clause that rights may be limited in terms of “the law”. This limitation
clause only deals with one requirement of the general limitation clause, concerning
the organ that may impose the limitation. The other requirements that may form
part of the general limitation clause are not qualified. These other requirements
must still be applied to the limitation of the particular right. Stricter requirements
may also relate to other elements of limitation clauses, for example, requirements
that a particular right may only be limited for a specific purpose, or that the procedure
79
for the limitation of a particular right is specified, or that a particular right may
only be limited if the limitation is “absolutely necessary”.
(b) The opposite of (a) is that it may be the purpose of a special limitation clause to
render the limitation of a specific right easier. This is what happens when a Bill of
Rights provides that the provisions of the Bill of Rights may be derogated from in
80
states of emergency. In this regard, it is important to emphasise that no special
limitation clause in the South African Bill of Rights may amount to empowering
parliament to limit a right as if no Bill of Rights exists. The certification by the
Constitutional Court means that the Constitution complies with the constitutional
principles. Claw-back clauses are inconsistent with the constitutional principles in
respect of the supremacy of the Constitution and judicial control81 and the Court
could not possibly have certified them.
(c) A special limitation clause may be formulated in respect of a particular right to
clear up uncertainty about one or more of the elements of the general limitation
clause. Examples:
• In the United States of America, it took some time before the Supreme Court
decided that measures that benefit people disadvantaged by racial discrimination
serve a public interest for the promotion of which the state may deviate from the
equality principle. Section 9(2) of the South African Constitution expressly pro-
vides for this. This does not mean that other public interests justifying a depar-
ture from the equality principle do not exist. In addition, it applies in this
instance only to one element of limitation clauses. In principle, the other ele-
82
ments of section 36 still have to be complied with.
________________________
78 S 36(1): “The rights in the Bill of Rights may be limited . . .”

79 Eg, s 35(1) and (2) contain specific procedures to be followed when personal freedom is
restricted by arrest and detention. In addition, s 28(1)(g) contains even stricter requirements
than those in s 35(2), when children are detained.
80 S 37. See below.
81 Constitutional principles II and VII.
82 Even to the extent that s 9(2) has been formulated in such a way that affirmative action is not
regarded as a limitation of the right to equality, but “to promote the achievement of equality”, as
• In Canadian courts, doubt has been expressed on the question of whether finan-
cial and administrative considerations constitute permissible purposes for limit-
83
ing rights. The South African Bill of Rights provides that national legislation
may provide for reasonable measures “to alleviate the administrative and finan-
84
cial burden on the state” in giving effect to the right to access to information.
Again, a purpose for which the right may be limited is specified without preclud-
ing the possibility that the right may also be limited for other purposes. The re-
quirement of “reasonableness” can hardly amount to anything else than the
reasonableness test in the general limitation clause.
(d) It may also occur that special limitation provisions merely reiterate elements of
the general limitation clause without adding, qualifying or elucidating anything. This
may be the result of complicated compromises reached during the negotiations85 or
careless drafting.
The provisions of the Constitution concerning a state of emergency amount to special
limitation provisions that apply to particular rights under specific circumstances.
• Section 37 of the Constitution provides that a state of emergency may be de-
clared only in terms of an act of parliament and only when the life of the nation
is threatened by war, invasion, general insurrection, disorder, natural disaster, or
other public emergency.
• A state of emergency may be effective for no more than 21 days. Its first exten-
sion must be approved by the National Assembly by a majority of its members.
Subsequent extensions must be approved by 60% of the members.
• The courts may decide on the validity of the declaration of a state of emergency,
its extension, or any legislation enacted or action taken in consequence of the
declaration.
• Any derogation from the Bill of Rights during a state of emergency must be
strictly required by the emergency.
• Certain rights may not be limited more than under normal circumstances. These
rights are the right not to be unfairly discriminated against on the grounds of
race, colour, ethnic or social origin, sex, religion or language, the right to human
dignity, the right to life, the prohibition on slavery and servitude, particular rights
86 87
of children, and particular rights of arrested, detained and accused persons.
88
• Special rules apply to the protection of people in detention.
________________________
pointed out in para 6.2, when legislatures enact legislation to give effect to rights, any consequen-
tial limitation of rights (eg, the right to equality of others) has to comply with the limitation
clauses.
83 Sing v Minister of Employment and Immigration [1985] 1 SCR 177.
84 S 32(2). See also s 33(3)(c) in connection with the right to just administrative action.
85 The special limitation clause in s 25(1) in respect of the right to property provides an example.
See Rautenbach “Die reg op eiendom – arbitrêre ontneming, proporsionaliteit en die alge-
mene beperkingsbepaling in konteks” 2002 TSAR 821.
86 The rights in s 28(1)(d) and (e), (1)(g)(i) and (ii), and (1)(j) with regard to children of 15
years and younger.
87 The rights in s 35(1)(a),(b) and (c), (2)(d), (3) excluding the right in (3)(d), (4), and (5) in
respect of the exclusion of evidence if the admission of that evidence would render the trial unfair.
88 S 37(6)–(8).
The other special limitation clauses relates to particular rights.
More examples: Section 25(1) and section 25(2) repeats in respect of the deprival of
property and expropriation the requirement that limitations must be “in terms of law
of general application” and section 25(1) repeats the same phrase in respect of expro-
89
priation. The requirements for expropriation in section 25(2) and (3) contains spe-
cial provisions on the purpose of the limitation and how the balance must be achieved
90
between die limitation and its purpose. The Constitutional Court applies limitation
considerations when it considers some and in many cases most of the factors in section
91
36(1)(a) to (d) when it applies the concepts “unfair” discrimination in section 9(3),
92
“arbitrarily or without just cause” in section 12(1)(a), and the requirement “reason-
93
able” administrative action in section 33(1). The phrase “the state must take reason-
able legislative measures within its available resources, to achieve the progressive
realisation” of rights in sections 24, 26(2) and 27(2) provides the state with a defence
in justification of its failure to take action when such failure violates the conduct and
94
interests protected by the rights. ) Sections 58(1)(a) and 71(1)(a) guarantees free-
dom of speech for members of parliament “subject to its rules and orders”. The Con-
stitutional Court held that provision for the limitation of freedom of speech may only
be made in the rules and orders of parliament and not under any other legislation
95
such as the Powers, Privileges and Immunities Provincial Legislatures Act 4 of 2004.
4 The limitation of rights by other provisions of the Constitution

Provisions elsewhere in the Constitution as adopted in 1996 that limit rights in the
Bill of Rights need not comply with the limitation clauses. Constitutional amend-
ments adopted after the commencement of the Constitution that limit rights must
comply with the limitation clauses or must be adopted according to the require-
ments for the amendment of the Bill of Rights.
Section 36(2) of the Constitution provides: “Except as provided in subsection (1) or
in any other provision of the Constitution, no law may limit any right entrenched in the
96
Bill of Rights.” Examples of such other provisions in the Constitution are:
• The right to stand for public office in section 19(3)(b) is limited by the qualifica-
tions for access to various elected public offices.97
• The right to access to courts in section 34 is limited by the exclusion of civil
liability for certain actions of members of executives and legislatures performed
in the respective legislatures,98 and the requirement that the leave of the Consti-
99
tutional Court is necessary for direct access to the Court.
________________________
89 Ch 25 para 4.4.
90 Ch 25 para 4.4.
91 Ch 19 para 2.2.2.
92 Ch 21 para 1.4.
93 Ch 26 para 2.4.
94 Ch 25 para 1.4.
95 Democratic Alliance v Speaker of the National Assembly 2016 5 BCLR 577 (CC), 2016 3 SA 487 (CC)
para 47.
96 Emphasis added.
97 Ss 47, 62, 106 and 158.
98 Ss 58(1)(b), 71(1)(b) and 117(1)(b).
99 S 167(6). See Dormehl v Minister of Justice 2000 5 BCLR 471 (CC), 2000 2 SA 987 (CC) paras 4
and 9.
Normally, provisions of the Constitution are as far as possible interpreted in such a
100
way that they do not conflict with one another. However, the same constitution-
making body adopted both the Bill of Rights and the other provisions of the 1996
text of the Constitution and they intended that the provisions which qualify rights
should limit those rights.101 Such limitations need not comply with the limitation
clauses. Since the commencement of the Constitution, more difficult procedures
apply to the amendment of the Bill of Rights than to the amendment of most other
102
provisions of the Constitution. Since 1997, the amendment of “ordinary” pro-
visions that limit rights, must comply with the requirements of the limitation clauses
or they must be adopted according to the procedure for the amendment of the Bill
of Rights.
________________________
100 S v Rens 1996 2 BCLR 155 (CC), 1996 1 SA 1218 (CC) para 17; UDM v President of the RSA (1)
2002 11 BCLR 1179 (CC), 2003 1 SA 495 (CC) para 83.
672 (CC) paras 14, 38 and 50.
102 See ch 8 para 2.5.7.6 above.
Chapter 19
Equality
1 Section 9 329
2 Protected conduct and interests, and bearers of the right 329
3 Persons and institutions bound by the right, their duties and justification for
non-compliance (limitation of the right) 331
4 Particular matters 340
5 Steps to apply the right 344
1 Section 9
9(1) Everyone is equal before the law and has the right to equal protection and bene-
fit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to pro-
tect or advance persons, or categories of persons, disadvantaged by unfair discrimina-
tion may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one
or more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.
2 Protected conduct and interests, and bearers of the right

Section 9 does not describe the interests protected by the right. It only describes the
duties of those who are bound by the right. But as explained in chapter 16 para-
graph 1, all the rights in the Bill of Rights protect human conduct and interests
regardless of whether conduct and interests are described in the formulation of the
right.
The right to equality protects the equal worth of bearers of the right.
People have equal worth because each of them has the attributes of a human being –
for example, human dignity, life, physical and psychological integrity, privacy, ability
to form religious and other convictions, to communicate, assemble, associate, pur-
sue political causes, earn a living, and acquire property. These features of human
beings are protected by other rights in the Bill of Rights. Section 9 provides that
equality includes the full and equal enjoyment of all rights and freedoms. Everyone
has the right to enjoy all other rights on an equal basis with everybody else.
The right to equality is based on the principle that a person’s unique characteris-
tics and abilities protected by the right to human dignity and the other constitu-
tional rights, may, in principle, not be a reason for treating her or him differently
329
without justification. Human dignity, the freedom to exercise the other rights and
equality are tightly interlocked in the South African Bill of Rights. The right to human
dignity protects the inborn and unique worth of every human being; freedom in the
Bill of Rights consists of the freedom of choice of everyone to decide how to enjoy,
protect and give expression to their inborn human characteristics and abilities;
equality means despite the fact that everybody’s human identity and characteristics
may be different and creates diversity in society, these features and characteristics
may not be the ground to be treated differently without constitutionally sound
justification to do so.
The classification of people often forms the basis of the limitation of rights. Most
often, differentiation, making differences between people, comprises an element of
1
the limitation of other rights. The infringement of the right to equality therefore
often overlaps with the infringement of other rights, and in most instances the
limitation clauses are applied in the same way.2 However, it is important to keep in
mind that different rights are involved. For example, when both the right to equality
and another right have been infringed, the unconstitutional state of affairs in re-
spect of the other right cannot be rectified by “cutting down the [right concerned]
3
of all”.
Because the right to equality protects the equal worth of people, it is strictly speak-
ing not a right to equal treatment, but a right to have one’s equal worth with others
respected, protected, promoted and fulfilled. This is why the right to equality some-
times requires that particular persons be treated differently when it is necessary to do
so in order to treat them as people with equal worth. Inequality which results from
formal equal treatment is often referred to as “substantive inequality” and “substan-
tive equality” means that all people’s equal worth must be respected and protected.
When certain categories of people, for example, children, the elderly or persons
with disabilities are always treated in the same way as others, their human dignity
and equal worth as humans may be impaired and therefore the right to equality
provides that they be treated differently. The South African Bill of Rights provides
that measures designed to protect and advance persons, or categories of persons,
4
who have been disadvantaged by unfair discrimination may be taken.
All natural persons are bearers of the right. In principle, juristic persons are also
bearers of the right.
The right to equality of juristic persons may be at issue at different levels, for example,
unequal treatment with regard to, respectively, (a) natural persons, (b) other juristic
persons, and (c) different legal fields. Differences between the nature of juristic per-
sons and the nature of natural persons, and between the natures of various juristic
persons, will undoubtedly play an important role in the application of the limitation
clauses to the unequal treatment of juristic persons. Juristic persons are also protected
________________________
1999 1 SA 6 (CC) paras 32 and 112 in respect of the overlap with the rights to human dignity
and privacy.
2 See, eg, S v Ntuli 1996 1 BCLR 141 (CC), 1996 1 SA 1207 (CC) paras 21, 25; Prince v President of
the Law Society, Cape of Good Hope 1998 8 BCLR 976 (C) 989, 991.
3 S v Steyn 2001 1 BCLR 52 (CC), 2001 1 SA 1146 (CC) paras 33, 42.
4 S 9(2). In National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517
(CC), 1999 1 SA 6 (CC) para 60, it was said: “Past unfair discrimination frequently has ongoing
negative consequences, the continuation of which is not halted immediately when the initial
causes thereof are eliminated, and unless remedied, may continue for a substantial time and
even indefinitely.”
Chapter 19 Equality 331
by the prohibition of unfair discrimination in section 9(3). Unfair discrimination not
only consists of the infringement of the right to human dignity (of which juristic per-
sons cannot be the bearers), but also of “[o]ther forms of differentiation, which in
5
some or other way affect persons adversely in a comparative serious manner”. This
6
covers instances in which human dignity could by definition not have been infringed.
Juristic persons may be protected against this form of unfair discrimination. In Manong
& Associates (Pty) Ltd v City of Cape Town it was stated that the nature of a company can
be determined by the profile of its controlling shareholders and that there could be
no reason why a company in which, for example, women, people with disabilities, and
ethnic and religious groups hold the controlling interest cannot be discriminated
7
against.
3 Persons and institutions bound by the right, their duties

and justification for non-compliance with the duties
(limitation of the right)
The right to equality applies to all law and binds all organs of state in terms of
section 8(1) and the right is capable of being applied to private persons and
institutions for the purposes of section 8(2).
In respect of unfair discrimination, the first sentence of section 9(4) provides that no
person may unfairly discriminate directly or indirectly against anyone on one or more
grounds as prescribed in section 9(3). The nature of the right and the nature of the
duties are such that for the purposes of section 8(2)8 private persons and juristic
persons are also bound by the right in respect of differentiation not based on the
9
grounds referred to expressly in section 9(3).
The Bill of Rights formulates the right to equality in terms of the duties of those
bound by the right.
Section 9 describes three categories of duties, namely (a) in section 9(1), duties in respect
of differentiation that does not amount to unfair discrimination, (b) in section 9(3),
(4) and (5) duties in respect of unfair discrimination, and (c) in section 9(2), duties
10
in respect of affirmative action. The Constitution distinguishes between these three
categories because the limitation of the right to equality is approached differently in
each case (see paragraphs 3.1, 3.2 and 3.3 below). Section 9(2) which deals with
affirmative action does not impose a duty to take affirmative action, but was inserted
to state clearly that such measures may be taken in South Africa.
________________________
5 Prinsloo v Van der Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC) para 31.
6 This possibility was overlooked in an obiter dictum in Weare v Ndebele 2009 4 BCLR 370 (CC),
2009 2 SA 310 (CC) para 72 in which it was stated that it would be difficult to imagine that a
juristic person can be discriminated against unfairly because a juristic person cannot be the
bearer of the right to human dignity. For an analysis of this aspect of the case, see Rautenbach
IM “Oorsig van beslissings van die Konstitusionele Hof oor die handves van regte” 2009 TSAR
323, 329.
7 Manong & Associates (Pty) Ltd v City of Cape Town 2009 1 SA 644 (EqC) para 34.
8 See Ch 17 para 7 above.
9 Gerards J Judicial Review in Equal Treatment Cases (2005) states in respect of the application of
the right to equality to private relations: “[T]he courts would have to take due account of the
freedom of decision and contract of the individual concerned by balancing such freedoms
against the interest that the disadvantaged person has in receiving the unequal treatment.”
10 The category identified by Currie I and De Waal J The Bill of Rights Handbook (2013) 217 called
“fair discrimination” (“discrimination” that does amount to unfair discrimination) is a super-
fluous category, because its limitation is treated in the same way as differentiation that does not
amount to unfair discrimination.
3.1 Differentiation that does not amount to unfair discrimination

3.1.1 Duties
Section 9(1) contains a general prohibition on treatment that disrespects the equal worth of
people. The provisions of section 9(3) and (4) prohibit a specific form of unequal
treatment, namely unfair discrimination.11
Section 9(1) uses three phrases to describe the right to equality: equality before the
law, equal protection of the law and equal benefit of the law. Equality before the law could
mean that people must be treated equally when laws are applied, equal protection of
the law could mean that the contents of laws must treat people equally and equal
benefit of the law could refer to the equal disposal of benefits in terms of laws. These
expressions represent the full range of the terms usually used in other human rights
instruments. The first sentence of section 9(2) uses a single concept, namely
“equality”. It can therefore be inferred that section 9(1) provides comprehensive
protection against unequal treatment. The different meanings that can be attached
to the phrases in section 9(1) are not of practical significance and up to now
they have not played any role in court judgments. Since section 9(3) deals with a
specific form of unequal treatment, namely unfair discrimination, section 9(1)
actually covers all forms of differentiating treatment that do not amount to unfair discrimina-
tion. As is explained below, the general limitation clause is applied more strictly
to unfair discrimination than to differentiation that does not constitute unfair
discrimination.
3.1.2 Justification for non-compliance (limitation of the right)
All differentiations between people (including unfair discrimination as discussed in
paragraph 3.2 below) must comply with the rational relationship test.12 In Van der
Merwe v Road Accident Fund the Constitutional Court stated “It is so that laws rarely
prescribe the same treatment for everyone. Yet it bears repetition that when a law
elects to make differentiation between people or classes of people it will fall foul of
the constitutional standard of equality, if it is shown that the differentiation does not
have a legitimate purpose or a rational relationship to the purpose advanced to
13
validate it.”
In the case of differentiation that does not amount to unfair discrimination, the existence of
a rational relationship between the limitation and its purpose is the only requirement for
limitation. It is a weak test. In the case of unfair discrimination the test is stricter
14
because more requirements are added to the rational relationship test. Because the
nature and extent of the consequences of unequal treatment which does not amount to
unfair discrimination are less serious, the general limitation clause is applied less
________________________
11 Certain other rights are also formulated as general rights to which definitions of aspects of the
general right is added to make it clear that the general right impose these duties or protect
these interests. And these additional definitions are then often also called rights. See, for ex-
ample, the rights in ss 12, 14 and 16(1).
12 Currie I and De Waal J The Bill of Rights Handbook (2013) 220 does not consider a rational
relationship test to form part of “the test for the justifiability of a limitation of a rights”.
13 Van der Merwe v Road Accident Fund 2006 6 BCLR 682 (CC), 2006 4 SA 103 (CC) para 49 and
see the discussion in ch 18 para 2.3.2(d) above Jooste v Score Supermarket Trading (Pty) Ltd 1999 2
BCLR 139 (CC), 1999 2 SA 1 (CC) para 16.
14 See para 3.2.2 below.
15
strictly to differentiations of this nature. All that is required, is that the differentia-
tion must have been made for a legitimate purpose and that the differentiation must
be capable of contributing something towards achieving the purpose. The importance
16
of the purpose does not play a determinative role, and those limiting the right are
afforded a wide discretion in respect of the alternative ways to achieve the purpose.17
It must however be noted, that a rigid approach that only the rational relationship
test should always be applied to so-called “ordinary regulatory” unequal treatment
should not be followed. The nature and extent of “mere” differentiations may differ
considerably. Depending upon the seriousness of their consequences, greater weight
must be attached to the importance of the purpose and the employment of less
restrictive alternatives.
The Constitutional Court does not always apply the rational relationship test under
section 9(1) within the framework of the limitation of the right to equality. The court
deviates from the framework in two ways.
(a) The Constitutional Court has in many cases considered the rational relationship
test to form part of the definition of the protective ambit of the right and has disre-
18
garded it as a factor relating to the justification for mere differentiation. The rational
relationship test is applied before the general limitation clause is applied. This is an un-
sound approach and unnecessary in a system that works with a general limitation
clause. In Sarrahwitz v Maritz the Constitutional Court has started to abandon this ap-
proach. In this case, the court applied the rationality test expressly as part of the justi-
19
fication for a differentiation that does not amount to unfair discrimination. The
approach in the Sarrahwitz case is to be welcomed. The reasons are the following. First-
ly, when a differentiator contends that a rational relationship exists in a particular
case, he or she is raising an argument to justify the differentiation: differentiation has
been established, but “the differentiation served a legitimate purpose”. Secondly, once
a conclusion has been reached in a section 9(1) investigation that the differentiation
serves no legitimate purpose, the general limitation clause has in effect already been
applied – no purpose for the limitation exists (s 36(1)(b)) and no relation between the
20
limitation and its purpose can be evaluated (s 36(1)(d)).
(b) It has also occurred that the Constitutional Court replaced a right to equality
investigation with a rationality investigation based only upon the rule of law as a
21
constitutional value in section 1 of the Constitution. Rule-of-law rationality is
considered to be an alternative for the application of the right to equality. In Ronald
Bobroff and Partners Inc v De la Guerre; South African Association of Personal Injury Lawyers v
Minister of Justice and Constitutional Development, the Constitutional Court agreed with the
outcome in lower courts that based on the right to equality the differentiation between
________________________
15 Jooste v Score Supermarket Trading (Pty) Ltd 1999 2 BCLR 139 (CC), 1999 2 SA 1 (CC) para 16.
16 As referred to in the general limitation clause – s 36(1)(b).
17 As referred to in the general limitation clause – s 36(1)(e). See Minister of Defence v Potsane 2001
11 BCLR 1137 (CC) para 44; Bel Porto School Governing Body v Premier of the Western Cape 2002 9
BCLR 891 (CC), 2002 3 SA 265 (CC) paras 45–46.
18 See, eg, Prinsloo v Van der Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC); Harksen v Lane
1997 11 BCLR 1489 (CC), 1998 1 SA 300 (CC); East Zulu Motors (Pty) Ltd v Empan-
geni/Ngwelezane Transitional Local Council 1998 1 BCLR 1 (CC), 1998 2 SA 61 (CC); Weare v Nde-
bele 2009 4 BCLR 370 (CC), 2009 1 SA 600 (CC) para 46. For a discussion of this approach, see
ch 16 para 3 above.
19 Sarrahwitz v Maritz 2015 8 BCLR 925 (CC), 2015 4 SA 491 (CC) paras 59–67.
20 Such an unnecessary step was taken in previous judgments; see eg Van der Merwe v Road Accident
Fund 2006 6 BCLR 682 (CC), 2006 4 SA 103 (CC) para 59; Ngewu v Post Office Retirement Fund
2013 4 BCLR 421 (CC) para 17 and the discussion in 2007 TSAR 396; 2014 TSAR 380; 2016
TSAR 296–297.
21 See ch 1 para 3.2 on rationality as an aspect of the rule of law as a foundational principle in s 1
of the Constitution.
contingency fees agreements between legal practitioners and their clients, on the one
hand, and similar agreements between litigants and other persons, on the other hand,
was constitutional. However, the Constitutional Court held that the issue should have
been dealt with as a rationality review in terms of constitutional rule-of-law principles
and not as an instance of the application of the general limitation clause in which rea-
sonableness is the test.22 The court’s statement that a rationality enquiry is not applica-
ble to the limitation of constitutional rights, is not correct. Rational relationship tests
form part of the general reasonableness test in the general limitation clause in section
23
36 of the Constitution. This approach could prejudice certain parties to the dispute.
This point was articulated very clearly (albeit in a different context) in another judg-
ment of the court. In Savoi v National Director of Public Prosecutions the Constitutional
Court said:
“A fair-trial right challenge, being based on the Bill of Rights, would have in-
volved a two-stage analysis, and the respondents would have had to be alerted that
this was the challenge. This is so because at the second stage – the justification
stage – they are entitled to place before the court evidence to justify the limita-
tion at issue. Because the challenge [in this case] is founded on the rule of law, which does
not entail this two-stage analysis, the respondents were effectively denied an opportunity to
24
place necessary evidence before court”. (Emphasis added)
3.2 Unfair discrimination

3.2.1 Duties
Section 9(3) prohibits direct or indirect unfair discrimination on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.
The word “including” in the phrase “one or more grounds, including . . .” means
that unfair discrimination cannot be restricted to discrimination on the grounds
specified in section 9(3) or, for that matter, to grounds that are analogous to the
25
specified grounds. The word “including” is used without qualification. The list of
grounds in section 9(3) serves only one purpose, namely to single out the cases in
which the special rule in section 9(5) relating to the onus of proof in respect unfair
discrimination, applies (see below).
The words “one or more grounds” clearly indicate that complainants may rely upon
more than one ground of differentiation. The impact of differentiation on more than
26
one ground may be more serious than discrimination on only one ground.
Direct discrimination is differentiation on a ground referred to expressly in the dif-
ferentiating measure (for example: “Men may not enter this room”).
Indirect discrimination is a differentiation that has a discriminatory effect without
making a difference between people in its formulation (for example: “Everybody
must listen” which discriminates against people with hearing impediments), or a
________________________
22 Ronald Bobroff and Partners Inc v De la Guerre; South African Association of Personal Injury Lawyers v
Minister of Justice and Constitutional Development 2014 4 BCLR 430 (CC), 2014 3 SA 134 (CC)
paras 6–30, 50). For a discussion of the case, see 2014 TSAR 900–913.)
23 See Law Society of South Africa v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC)
para 37 and 2014 TSAR 905–909.
29.
25 Contra City of Cape Town v AD Outpost (Pty) Ltd 2000 2 BCLR 130 (C) 138H.
26 National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC), 1999
1 SA 6 (CC) para 113; National Coalition for Gay and Lesbian Equality v Minister of Justice 2000 1
BCLR 39 (CC), 2000 2 SA 1 (CC) para 40.
differentiation on grounds other than those expressly referred to in the formulation
27
(for example: “People with green eyes may not enter this room”). The test for
indirect discrimination deals with the effect of a classification and not with its pur-
pose, usefulness to the achievement of the purpose, or with its prevalence in other
28
contexts.
Unfair discrimination is not defined in the Constitution. The essence of the Consti-
tutional Court’s explanations is that unfair discrimination is differentiation that impairs
human dignity or affects bearers of the right in a comparably serious way, for example, when
29
it inflicts serious damage through the serious violation of any other right. The
Constitutional Court said that factors which determine the existence of unfair
discrimination include the position of the persons and the interests affected, and
30
the nature and purpose of the powers exercised. Whereas the position of the
disadvantaged people and the nature of the interests affected clearly relate to the
question whether the differentiation has violated human dignity or has a compara-
bly serious consequence, the nature and purpose of the powers relate to the purpose
of the differentiation and whether the purpose of the discrimination may be
achieved in a less serious way, that is, they are limitation considerations.31
Differentiation on any ground may impair human dignity or may have a compara-
bly serious consequence. The ground on which the differentiation is based, is not the
deciding factor. The effect of the differentiation, and not the ground, determines
whether we are dealing with unfair discrimination or not.
Whether the differentiation has been done deliberately, negligently or innocently may
be taken into account when the application of the general limitation clause is con-
sidered, but these factors also play no role in assessing during the first stage of the inquiry
32
whether the duty not to discriminate unfairly has been complied with.
The test that unfair discrimination amounts to differentiation that impairs human
dignity or that has a similar serious consequence is a useful test. Firstly, the test implies
that unfair discrimination occurs when individuals and groups are excluded and de-
graded as less than human, simply because they do not conform to the standards of
“normality” of those who wield social, economic or political power. It underlines the
________________________
27 Pretoria City Council v Walker 1998 3 BCLR 257 (CC), 1998 2 SA 363 (CC) paras 31–32; Rates
Action Group v City of Cape Town 2004 12 BCLR 1328 (C) para 84; Mvumvu v Minister of Transport
2011 5 BCLR 488 (CC), 2011 SA 2 473 (CC) paras 29 and 32.
28 These factors were taken into account in Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642
(CC) para 9 and Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2005
3 SA 589 (CC) para 90.
29 Prinsloo v Van der Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC) para 33; Harksen v Lane
NO 1997 11 BCLR 1489 (CC), 1998 1 SA 300 (CC) para 50; Minister of Defence v Potsane 2001 11
BCLR 1137 (CC), 2002 1 SA 1 (CC) para 44; MEC for Education: KwaZulu-Natal v Pillay 2008 2
BCLR 99 (CC), 2008 1 SA 474 (CC) para 94 – “the extent to which discrimination impacts on
other rights will be a relevant consideration in the determination of whether the discrimina-
tion is fair”; De Reuck v Director of Public Prosecutions (WLD) 2003 12 BCLR 1333 (CC), 2004 1 SA
406 (CC) para 41; Rates Action Group v City of Cape Town 2004 12 BCLR 1328 (C) para 108 –
municipal charges based on property values could have a disparately heavy impact on property
owners in white suburbs, but do not impair human dignity or have a similar serious conse-
quence. In Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) paras 15–19 and Volks NO
v Robinson 2005 5 BCLR 446 (CC) paras 52–57 the majority of the court ignored its own test for
unfair discrimination.
30 Harksen v Lane NO 1997 11 BCLR 1489 (CC), 1998 1 SA 300 (CC) para 53(b).
31 S 36(1)(d).
32 Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 10 BCLR 1027 (CC), 2007 6
offensiveness of unfair discrimination and the ethos of a Bill of Rights founded on the
33
value of human dignity. Secondly, the test deals with the effect of a differentiating
34
measure and not with its purpose or the intention with which it is employed. In this
sense, it provides a clear basis for the distinction between the first phase of the inquiry
during which the factual infringement of the right is determined and the second
phase when justification for the infringement within the framework of the general lim-
35
itation clause is investigated. Thirdly, as envisaged by section 9(3), it also enables us
to determine whether unfair discrimination exists in the case of differentiations not
based on the grounds expressly referred to in section 9(3). Fourthly, the test provides
an explanation for the application within the framework of section 36 of stricter stan-
dards for the justification of unfair discrimination than for the justification of differen-
36
tiations that do not amount to unfair discrimination. The nature and extent of the
limitation of the right to equality by unfair discrimination is much more serious than
limitation of the right by other forms of differentiation.
Section 9(5) contains an onus of proof rule in respect of unfair discrimination. When
complainants prove that there has been differentiation on any of the grounds
mentioned expressly in section 9(3), the discriminator has to prove that such
discrimination is not unfair. The grounds are race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth. Historically speaking, unequal treat-
ment on these grounds has always involved the serious violation of human dignity
and other rights. It can, therefore, be reasonably assumed that when the equal worth
of people is denied by classifications on these grounds, the human dignity of the
victims has been impaired or that there is a comparably serious consequence. The
discriminators then have a chance to prove that their differentiation on these
grounds does not impair human dignity or does not have a similarly serious
consequence.
In listing these grounds, the Constitution acknowledges the damage and pain that
have been caused through the ages by prejudice based on these grounds. The Consti-
tution clearly states that the state does not condone prejudice against individuals who
are different in respect of the listed matters. The state may not attach any conse-
quences to these characteristics and features unless differentiators can prove that the
differentiation on these grounds do not violate human dignity or have similar conse-
quences, or if they are unable to do so, to prove that the very strict standards for the
justification for unfair discrimination have been complied with. The features listed are
therefore declared to be neutral factors as far as the law is concerned and when they
serve as the grounds for differentiation, the requirements for the justification for such
differentiation are much stricter than the requirements for any other form of differen-
37
tiation. For the purposes of the law of defamation, the Constitutional Court ex-
plained in Le Roux v Dey that it is not wrongful to depict a person as having any of the
characteristics referred to in section 9(3), or to falsely state that a person has made a
particular constitutionally protected personal choice different to that person’s actual
personal choice, unless there has been a further imputation of indignity, for example,
________________________
33 Sachs J remarked in the Volks NO v Robinson 2005 5 BCLR 446 (CC) para 221: “As so often
happens in cases where prejudice is habitual and mainstream, the hurt to those affected is not
even comprehended by those who cause it, and passes unnoticed by members of the main-
stream.”
34 President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC).
35 Contra Woolman S and Botha H “Limitations” in Woolman et al (eds) Constitutional Law of South
Africa paras 34.4 and 43.1(b) (“[Final Constitution] s 9’s inquiry into unfair discrimination …
exhausts all meaningful inquiry in the justification for any such violation”).
36 See below.
37 See below.
when it is alluded that the person’s behaviour in exercising that choice and acting in
38
terms of that choice is lewd and immoral.
Complainants must prove the unfairness when there is differentiation on any other ground.
In Hassam v Jacobs NO the Constitutional Court misinterpreted both section 9(3) and
section 9(5) when it stated that “[d]iscrimination on each of the listed grounds in sec-
tion 9(3) is presumed to be unfair unless justified” and “the question now arises as to
39
whether this unfair discrimination can be justified under section 36”. This statement
is not correct. Section 9(5) does not create a presumption which must be countered by
justification in terms of section 36. It creates a presumption which must be countered
by proving that the differentiation on one of the grounds in section 9(3) is not unfair.
In Federation of Governing School Bodies for SA Schools v MEC for Education, Gauteng, the
Constitutional Court confirmed the validity of a provincial regulation that provided
that when a learner applies for admission to a school, the school may not request the
40
learner’s present school to furnish it with a confidential report. The Constitutional
Court assumed that the school considering the admission has “a right to discriminate
fairly” and took account of the elements of the general limitation clause in concluding
41
that the limitation of this right was justifiable. However, the Bill of Rights does not
expressly provide for “a right to discriminate fairly”. What was really involved was the
right of persons and institutions to make rules in the exercise of their rights and pow-
ers that differentiate between people, provided that the rules must comply with the
requirements for the limitation of the right to equality. The so-called “right to dis-
criminate fairly” is therefore not a separate right, but an inherent competence to exer-
cise other rights and powers within the framework of the Bill of Rights.
The second sentence of section 9(4) provides that national legislation must be enacted
to prevent or prohibit unfair discrimination. The Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000 was passed for this purpose. A litigant cannot
circumvent the act by relying directly on the constitutional provisions unless the
constitutionality of provisions of the act are challenged,42 or unless the act or other
legislation does not cover or regulate a particular instance. Legislation which gives
effect to a right may extend protection beyond what is protected in the Constitution,
but it may not decrease the protection expressly or by implication, and it may not
limit another right unconstitutionally.43
It is generally accepted that the Promotion of Equality and Prevention of Unfair Dis-
44
crimination Act “is not a model of legislative clarity”. More particularly, its provisions
on unfair discrimination in section 14 are so incoherent that it has been recom-
mended that they “should be redrafted in order to streamline and simplify the deter-
45
mination of fairness”. Any revision of this legislation should start by realigning its
provisions with the meaning and application of the right to equality in the Constitu-
46
tion. The Constitutional Court took a step in this direction when it remarked in MEC
for Education: KwaZulu-Natal v Pillay that the factors to be taken into account in testing
________________________
38 Le Roux v Dey 2011 6 BCLR 577 (CC), 2011 3 274 (CC) paras 185–191.
39 Hassam v Jacobs NO 2009 11 BCLR 1148 (CC), 2009 5 SA 572 (CC) para 40.
40 Federation of Governing School Bodies for SA Schools v MEC for Education, Gauteng 2016 8 BCLR
1050 (CC), 2016 4 SA 546 (CC).
41 Federation of Governing School Bodies for SA Schools v MEC for Education, Gauteng 2016 8 BCLR
1050 (CC), 2016 4 SA 546 (CC) paras 31–32.
42 MEC for Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC), 2008 1 SA 474 (CC) para 40.
44 MEC for Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC), 2008 1 SA 474 (CC) paras 137
and 168.
45 Albertyn C et al Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act,
Act 4 of 2000 (2001) 41.
for unfair discrimination in section 14(3) of the act, actually replicate two different
steps within the framework of the constitutional provisions. Four of the factors (in-
cluding the question whether discrimination impairs or is likely to impair human dig-
nity) “traditionally fall under fairness” and the other factors are “normally relevant to a
limitation analysis under section 36(1) of the Constitution.
3.2.2 Justification for non-compliance (limitation of the right)

Because the nature and extent of the consequences of unfair discrimination are very
serious (the impairment of human dignity or a comparable serious consequence),
the limitation clause is applied very strictly. Apart from requiring the existence of a
47
rational relationship between the limitation and its purpose, great weight is attached to
the importance of the purpose of the limitation. The limitation can only be justified by an
extremely pressing purpose the promotion of which necessitates the limitation. Ensuing
from this, a very limited (if any) discretion is afforded in respect of alternative ways to
48
achieve the purpose.
3.3 Affirmative action

Section 9(2) provides that equality includes the full and equal enjoyment of all
rights and freedoms and in order to promote the achievement of equality and
legislative and other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may be taken. This provision
deals with affirmative action. Section 9(2) contains the principle of substantive
equality referred to in paragraph 1 above. It states clearly that persons who have
been discriminated against unfairly in the past may be singled out for protection
and advancement. Section 9(2) was included in the South African Constitution to
make an unambiguous statement that affirmative action is being undertaken in
South Africa to rectify the effect of unfair discrimination in the past and to promote
and achieve equality.
Affirmative action always involves the classification of people, distinguishing as it
does, between people who have been disadvantaged by unfair discrimination and
others. By definition, it benefits a particular group and, therefore, amounts to
treating them differently. Although affirmative action measures are substantive
equality measures, they may in certain instances disadvantage and thus limit the
rights of certain persons that do not belong to the group that benefits from the
49
measures. Although such disadvantage may be considered to be an inevitable
consequence of section 9(2), the limitation of rights of third parties through af-
firmative action measures is, according to the Constitutional Court, not beyond
50
judicial scrutiny. Which standards must be applied to determine whether an af-
firmative action measure is constitutionally sound or whether it goes too far in
limiting the rights of others?
The Constitutional Court held that an affirmative action measure must comply
with the following requirements. The first three requirements were formulated in
________________________
47 In the initial guidelines, the Constitutional Court incorrectly applied the rational relationship
test as a threshold test with which unequal treatment must comply before the general limitation
clause is applied, eg, in Prinsloo v Van der Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC);
Harksen v Lane NO 1997 11 BCLR 1489 (CC), 1998 1 SA 300 (CC); East Zulu Motors (Pty) Ltd v
Empangeni/Ngwelezane Transitional Local Council 1998 1 BCLR 1 (CC), 1998 2 SA (CC).
48 See Prince v President of the Law Society, Cape of Good Hope 1998 8 BCLR 976 (C) 989, 991.
49 Du Preez v Minister of Justice and Constitutional Development 2006 9 BCLR 1094 (SE) para 18.
50 Du Preez v Minister of Justice and Constitutional Development 2006 9 BCLR 1094 (SE) para 34.
51
Minister of Finance v Van Heerden and the fourth one is based on statements in South
52
African Police Services v Solidarity obo RM Barnard.
(i) The measure must target persons or categories of persons who have been disadvantaged by
unfair discrimination. When a class is singled out for beneficial treatment, the
fact that a tiny minority within that class was not discriminated against does not
affect the validity of the measure. It is not required that a specific person must
have been discriminated against personally. All that is required is that the
53
persons must be a member of such a group.
(ii) The measure must advance or protect such persons. A standard of necessity between
the measure and the objective is not required; it is sufficient that the measure is
reasonably capable of achieving the desired outcome.
(iii) The measure must promote the achievement of equality. There must be “a rational
connection between the differentiation created by the impugned rules and the
purpose of advancing and protecting the group”.
It has been argued that the effect of requirement (iii) is that section 9(2)
excludes affirmative action from the definition of unfair discrimination in sec-
tion 9(3); the rational relationship test is a weak test that applies to differentia-
tion that does not amount to unfair discrimination and affirmative action can
54
never constitute unfair discrimination. This could have been true if the rational
relationship test was the only test. However, this is not correct because in South
African Police Services v Barnard a fourth requirement was added to the three re-
quirements in the Van Heerden case.
(iv) A stricter standard must be applied when the human dignity of third parties is affected by
an affirmative action measure. In South African Police Services v Barnard it was ac-
knowledged that the rational relationship test is a bare minimum to be
55 56
applied and that the measures can impair human dignity in which case a
57
stricter test must be applied. The majority of the court did not find it neces-
sary to define the stricter standard. In separate concurring judgments the judg-
es expressed themselves on the standard. Reference was made to a fairness
standard which involves the balancing of the interests of the people who bene-
fit from the measures and those adversely affected by the measures, and to
58
proportionality and an indirect application of the general limitation clause.
________________________
51 Minister of Finance v Van Heerden 2004 11 BCLR 1125 (CC), 2004 6 SA 121 (CC) paras 37, 38,
41, 42 and 113.
52 South African Police Service v Solidarity obo RM Barnard 2014 10 BCLR 1195 (CC), 2014 6 SA 123
(CC) paras 30–32.
53 Motala v University of Natal 1995 3 BCLR 374 (D) 382–383.
54 The Van Heerden requirements were criticized for not providing for fairness or proportionality
review (Pretorius JL “Accountability, contextualisation and the standard of judicial review of
affirmative action: Solidarity obo Barnard v South African Police Services” 2013 SALJ 31 43 and
“Fairness in transformation: a critique of the constitutional court’s affirmative action jurispru-
dence” 2010 SAJHR 536; McGregor M “Affirmative action on trial – determining the legitimacy
and fair application of remedial measures” 2013 TSAR 650 674).
(CC) paras 39, 94, 160.
(CC) paras 30–32, 178.
(CC) paras 39, 95–96, 177.
(CC) paras 30–32, 98 n 107, 164–165. For a discussion of the Barnard case and the application
of proportionality analysis and s 36 of the Constitution to affirmative action measures, see
4 Particular matters
The South African courts have applied the right to equality to a great number of
matters.
Race. The courts have invalidated debt recovery on a racial basis,59 the exclusion of in-
testate estates of black people from being dealt with by the master of the supreme
court,60 statutory rules on intestate succession of black people,61 the assessment by a
whites-only panel of damage caused by stray livestock62 and the reservation of bursaries
from a testamentary trust for whites.63 The Human Rights Commission held that the
exclusion of whites from membership and certain activities of an association consti-
tuted for the advancement of the interests of black journalists, prima facie amounted to
unfair discrimination for the purposes of section 9(3) and that, in that particular case,
the association was unable to rebut the presumption of unfairness for the purposes of
64
section 9(5).
65
Gender and sex. The courts have invalidated the following: provisions of the Insurance
Act 27 of 1943 that provided for the forfeiture by widows of proceeds of ceded life in-
surance to the insolvent estates of their husbands,66 provisions in the Transkei Marital
Act 21 of 1978 and in the common law on marital power in civil marriages,67 the rule
of male primogeniture in customary succession law,68 a requirement to state sex and
marital status on an application form,69 the failure in sections 7(1) and 7(2) of the
Recognition of Customary Marriages Act 120 of 1998 to extend the rule that it intro-
duced (namely that all customary law marriages are automatically in community of
property) to monogamous and polygamous marriages concluded before the coming
into operation of the Act (in these marriages the husbands would have remained the
70
owner of all family property); the failure in section 1 of the Intestate Succession Act
81 of 1987 to include more than one spouse in a polygynous Muslim marriage in the
71
protection it affords to “a spouse”; the failure in section 18(4)(d) of the Child Care
Act 74 of 1983 to require a father’s permission for the adoption of a child born out of
wedlock72; the exclusion of females from a testamentary bursary scheme;73 the auto-
matic exclusion in school policies of pregnant learners, whereas male learners who
father children were permitted to continue their education.74 The validity was sustained
________________________
Rautenbach IM “Requirements for affirmative action and requirements for the limitation of
rights” 2015 TSAR 431-443.
59 City Council of Pretoria v Walker 1998 3 BCLR 257 (CC), 1998 2 SA 363 (CC).
60 Moseneke v Master of the High Court 2001 2 BCLR 103 (CC), 2001 2 SA 18 (CC).
61 Bhe v Magistrate, Kayelitsha; Sibi v Sithole; SA Human Rights Commission v President of the RSA 2005
1 BCLR 1 (CC), 2005 1 SA 580 (CC).
62 Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2005 3 SA 589 (CC).
63 Minister of Education v Syfrets Trust Ltd 2006 10 BCLR 1214 (C), 2006 4 SA 205 (C); Curators,
Emma Smith Educational Fund v University of KwaZulu-Natal 2010 6 SA 519 (SCA).
64 Forum of Black Journalists v Katapodis 2009 5 BCLR 510 (SAHRC) 523.
65 On legislative initiatives to promote gender equality, see Pieterse-Spies A “The role of legisla-
tion in promoting equality: a South African experience” 2013 TSAR 676.
66 Brink v Kitshoff 1996 6 BCLR 752 (CC), 1996 4 SA 197 (CC).
67 Prior v Battle 1998 8 BCLR 1013 (Tk), 1999 2 SA 850 (Tk).
68 Bhe v Magistrate, Kayelitsha; Sibi v Sithole; SA Human Rights Commission v President of the RSA 2005
1 BCLR 1 (CC), 2005 1 SA 580 (CC).
69 Nedcor Bank v Hennop 2003 3 SA 622 (T).
70 Gumede v President of the RSA 2009 3 BCLR 243 (CC), 2009 (3) SA 12 (CC). in respect of
monogamous marriages and Ramuhovhi v President of the RSA 2018 2 BCLR 217 (CC) in respect
of polygamous marriages.
71 Hassam v Jacobs NO 2009 11 BCLR 1148 (CC), 2009 5 SA 572 (CC).
72 Fraser v The Children’s Court 1997 BCLR 153 (CC), 1997 2 SA 261 (CC).
73 Minister of Education v Syfrets Trust Ltd 2006 10 BCLR 1214 (C), 2006 4 SA 205 (C).
74 Head of Department, Department of Education, Free State Province v Welkom High School/Harmony High
School 2013 9 BCLR 989 (CC).
of statutory prohibitions of prostitution and brothel-keeping75 and a presidential re-
mission of prison sentences of only mothers with children.76 The trend in cases in
which the courts have emphasised that parenting is a gender neutral function and that
a mother is not necessarily in a better position to care for a child, is considered to be
consistent with the right to equality.77
Marital status. The Constitutional Court invalidated the following: section 1 of the In-
testate Succession Act 81 of 1987 to the extent that the protection it affords to “a
78
spouse” does not extend to more than one spouse in a polygynous Muslim marriage;
a statutory prohibition of claims for patrimonial damages between spouses married in
community of property;79 and the customary law rule that the consent of an existing
wife in a customary marriage is not required when a VaTsonga husband wants to enter
into a further customary marriage;80 sections 10 and 10E of the Post Office Act 44 of
1958 because it differentiated irrationally between the payment of divorced spouses’
interests regulated, on the one hand, by the Pension Funds Act 24 of 1956 (payable at
the time of the divorce) and the Government Employees Pension Law (Proclamation
21 of 1996) (payable to a non-member spouse only at the termination of membership
of the member spouse); 81 section 19(b)(ii) of the Road Accident Fund 56 of 1996 pri-
or to its amendment in 2008 which excluded car accident claims for compensation
against the Road Accident Fund of members the driver’s household or owed the driver
a duty of support because spouses and children were the most likely to be excluded.82
The Constitutional Court sustained the validity of a statutory exclusion of claims of het-
erosexual life partners for reasonable maintenance claims after the death of the other
partner.83
Disability. The Constitutional Court confirmed the validity of the provisions of section 294
of the Children’s Act 38 of 2005 that a surrogate motherhood agreement cannot be
concluded if the gametes of the prospective parent or parents cannot be used to effect
the conception; the court held that the permanent and irreversible infertility of a pro-
spective single mother does not amount to disability and that this differentiation does
not affect her human dignity.84
Ethnicity. A high court invalidated the exclusion of persons of Jewish descent from the
benefits of a testamentary bursary scheme.85
Foreigners. The Constitutional Court invalidated the exclusion of non-citizens from
permanent employment as teachers86 and from receiving certain welfare grants;87 and
________________________
75 S v Jordan 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC).

76 President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC).
77 P v P 2007 5 SA 103 (C) para 26.
78 Hassam v Jacobs NO 2009 11 BCLR 1148 (CC), 2009 5 SA 572 (CC); see Daniels v Campbell NO
2004 7 BCLR 735 (CC), 2004 5 SA 331 (CC) para 19 in respect of monogamous Muslim
unions.
79 Van der Merwe v Road Accident Fund 2006 6 BCLR 682 (CC), 2006 4 SA 230 (CC).
80 Mayelane v Ngwenyama 2013 8 BCLR 918 (CC), 2013 4 SA 415 (CC). For a critical assessment of
this judgment, see Bakker, P “The validity of customary marriage under the Recognition of
Customary Marriage Act of 120 of 1998 with reference to sections 3(1)(b) and 7(6)” 2016
THRHR 357-368; Manthwa T “Proof of the content of customary law in the light of MN v MN: a
constitutional approach” 2017 THRHR 300–307.
81 Ngewu v Post Office Retirement Fund 2013 4 BCLR 421 (CC).
82 Da Silva v Road Accident Fund 2014 8 BCLR 917 (CC), 2014 5 SA 573 (CC).
83 Volks NO v Robinson 2005 5 BCLR 446 (CC).
84 AB v Minister of Social Welfare 2017 3 BCLR 267 (CC); for comments on the judgment, see
Rautenbach IM “Overview of constitutional court judgments on the bill of rights - 2016” 2017
TSAR 356–370.
85 Minister of Education v Syfrets Trust Ltd 2006 10 BCLR 1214 (C), 2006 4 SA 205 (C).
86 Larbi-Odam v Member of the Executive Council for Education (N-W Province) 1997 12 BCLR 1655 (CC),
1998 1 SA 745 (CC).
87 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569
(CC), 2004 6 SA 505 (CC).
the prohibition of the adoption by foreigners of the child of South African citizens.88
The Court sustained the validity of the statutory exclusion of non-permanent residents
from registering as security providers.89
Sexual orientation. The Constitutional Court invalidated the following: all crimes relating
to same-sex activities90 and the omission of same-sex life partners in matters concern-
ing pensions and remuneration;91 and differentiation on grounds of sexual orientation
in respect of provisions of the Aliens Control Act,92 the adoption of children,93 the par-
enthood of artificially conceived children,94 intestate succession by unmarried same
sex partners and partners in civil unions,95 the concept “family” in life insurance poli-
cies,96 common-law actions for loss of support97 and the common-law definition of
marriage.98 The Constitutional Court confirmed the invalidation of sections 14(1)(b)
and 14(3)(b) of the Sexual Offences Act 23 of 1957 (now repealed) to the extent that
the provisions set different legal ages of consent to respectively heterosexual and same-
99
sex activities.
Religion and culture. A prohibition by a school governing body of the wearing of nose-
studs by Hindu/Indian learners100 and a prohibition of horse-racing on Christian reli-
gious days were invalidated.101 Section 1 of the Intestate Succession Act was invalidated
to the extent that the protection it affords to “a spouse” does not extend to more than
one spouse in a polygynous Muslim marriage because the provision differentiated be-
tween widows in polygynous customary marriages and widows in polygynous Muslim
marriages and thereby constituted unjustifiable unfair discrimination on the basis of
102
religion.
Birth. The courts invalidated the common-law rule that the paternal grandfather of an
extra-marital child owes no duty of support to the child103 and male primogeniture in
customary succession law.104
HIV/AIDS status. The Constitutional Court invalidated the policy of the South African
Airways not to appoint persons living with HIV as cabin attendants.105
________________________
88 Minister for Welfare and Population Development v Fitzpatrick 2000 7 BCLR 713 (CC), 2000 3 SA 422
(CC).
89 Union of Refugee Women v Director: The Private Security Industry Regulatory Authority 2007 4 BCLR
339 (CC), 2007 4 SA 381 (CC).
90 National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC),
1999 1 SA 6 (CC).
91 Langemaat v Minister of Safety and Security 1998 4 BCLR 444 (T), 1998 3 SA 312 (T); Satchwell v
President of the RSA 2002 9 BCLR 986 (CC), 2002 6 SA 1 (CC).
2000 2 SA 1 (CC).
93 Du Toit v Minister of Welfare and Population Development 2002 10 BCLR 1006 (CC), 2003 2 SA
198 (CC).
94 J v Director General: Department of Home Affairs 2003 5 BCLR 463 (CC).
95 Gory v Kolver NO 2007 3 BCLR 249 (CC), 2007 4 SA 99 (CC) and Laubscher v Duplan 2017 3
BCLR 249 (CC), 2007 2 SA 264 (CC).
96 Farr v Mutual and Federal Insurance Co Ltd 2000 3 SA 684 (C).
97 Du Plessis v Road Accident Fund 2003 11 BCLR 1220 (SCA), 2004 1 SA 359 (SCA).
98 Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project and Eighteen Others v Minister of
Home Affairs 2006 3 BCLR 355 (CC), 2006 1 SA 524 (CC).
99 Geldenhuys v National Director of Public Prosecutions 2009 5 BCLR 435 (CC), 2009 2 SA 310 (CC).
100 MEC for Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC).
101 Gold Circle (Pty) Ltd v Premier, KwaZulu-Natal 2005 4 SA 402 (D).
102 Hassam v Jacobs NO 2009 11 BCLR 1148 (CC), 2009 5 SA 572 (CC).
103 Petersen v Maintenance, Officer 2004 2 BCLR 205 (C), 2004 2 SA 56 (C).
104 Bhe v Magistrate Kayelitsha; Sibi v Sithole; SA Human Rights Commission v President of the RSA 2005
1 BCLR 1 (CC), 2005 1 SA 580 (CC).
105 Hoffmann v South African Airways 2000 11 BCLR 1211 (CC), 2001 1 SA 1 (CC).
Affirmative action. The courts held that different previously disadvantaged groups may
be treated differently for affirmative action purposes,106 invalidated affirmative action
measures for not complying with the requirements in the interim Constitution,107 and
sustained the validity of parliamentary pension fund rules that benefited members of
parliament who became members after 1994.108 Under the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000, a selection policy based on race
and gender to the absolute exclusion of all other qualities required for a position as
responsible and important as that of a regional magistrate is disproportional and
amounts to discrimination which cannot be said to be fair.109
Presumptions. The validity of a presumption of negligence in section 84 of the Forestry
Act 122 of 1984 was sustained. 110 The courts invalidated presumptions and the reversal
of onus in respect of the crime of receiving stolen goods111 and crimes relating to deal-
ing in drugs.112
Requirements for leave to appeal. The Constitutional Court invalidated certain statutory
requirements for leave to appeal by unrepresented detainees.113 The court sustained the
validity of requirements for leave to appeal from high courts in both civil and criminal
trials.114
Admissions and confession in criminal procedure. The Constitutional Court invalidated the
rule115 that a confession was inadmissible against a third party implicated by a confes-
sion, whereas and admission that implicates a third party may be admissible.116
Military courts. The Constitutional Court confirmed the validity of the authorisation of
military prosecutors to institute and conduct prosecutions in military courts.117
Adducing further evidence in civil and criminal trials. In Liesching v S, the applicants argued
that an interpretation by the President of the Supreme Court of Appeal that a litigant
in a civil matter who wants to adduce further evidence after a petition has been dis-
missed, may use section 172(2)(f) of the Superior Court Act 10 of 2013 while the ap-
peal process is still open, whereas a convicted person may use section 327(1) of the
Criminal Procedure Act 51 of 1977 only after all other appeals have been exhausted
and thus violated the right to equality. The Constitutional Court held that the Presi-
dent of the Supreme Court of Appeal misinterpreted the relevant provisions and that
the provisions did not differentiate.118
Licensing. The validity was sustained of controlling liquor distribution through licens-
ing.119
Homeland affiliation. The Constitutional Court invalidated the statutory exclusion of at-
torneys admitted under former homeland legislation from automatic enrolment at
another provincial high court.120
________________________
106 Motala v University of Natal 1995 3 BCLR 374 (D).

107 Public Servants’ Association of SA v Minister of Justice 1997 5 BCLR 577 (T), 1997 3 SA 925 (T);
Stoman v Minister of Safety and Security 2002 3 SA 468 (T).
108 Minister of Finance v Van Heerden 2004 11 BCLR 1125 (CC), 2004 6 SA 121 (CC).
109 Du Preez v Minister of Justice and Constitutional Development 2006 9 BCLR 1094 (SE), 2006 5 SA
592 (SE) para 38.
110 Prinsloo v Van der Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC).
111 S v Manamela 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC).
112 S v Manyonyo 1999 12 BCLR 1438 (CC).
113 S v Ntuli 1996 1 BCLR 141 (CC), 1996 1 SA 1207 (CC).
114 S v Rens 1996 2 BCLR 155 (CC), 1996 1 SA 1218 (CC); Besserglik v Minister of Trade, Industry
and Tourism 1996 6 BCLR 745 (CC), 1996 4 SA 331 (CC).
115 As formulated in S v Ndhlovu 2002 2 SACR 325 (SCA).
116 Mhlongo v S; Nkosi v S 2015 8 BCLR 887 (CC), 2015 2 SACR 323 (CC).
117 Minister of Defence v Potsane 2001 11 BCLR 1137 (CC).
118 Liesching v S 2017 4 BCLR 454 (CC) paras 24, 53, 63.
119 Cherry v Minister of Safety and Security 1995 5 BCLR 570 (SE), 1995 3 SA 323 (SE).
120 Mabaso v Law Society of the Northern Province 2005 2 BCLR 129 (CC), 2005 2 SA 117 (CC).
Systemic failures. The Constitutional Court refused to invalidate the conflicting decisions
which separate panels of judges of the Supreme Court of Appeal reached in respect of
leave to appeal in identical cases,121 but also held that the courts must provide relief
when systemic failures cause inequality.122
Judgment creditors of the state. The Constitutional Court held that section 3 of the State
Liability Act 20 of 1957 which provided that no execution, attachment or like process
shall be issued against the property of the State, differentiated creditors of the state
and creditors of private persons and that as such it was factually limiting the right in
123
section 9(1) as well as the right to human dignity and the right to access to courts.
Costs awards. Costs awards in constitutional litigation may not be determined by the
status of the parties or the issues in a particular case; no party to court proceedings
124
should enjoy an enhanced or diminished status.
Publications. The Constitutional Court invalidated the exclusion of magazines from the
exemption of bona fide newspapers from pre-publication control in terms of s 16 of the
Film and Publications Act 65 of 1996.125
Occupations. The Constitutional Court confirmed the validity of the differentiation be-
tween contingency fees agreements between legal practitioners and their clients, on
the one hand, and similar agreements between litigants and other persons.126
Certain categories of passengers in motor vehicles. The invalidity of section 18 of the
Road Accident Fund Act 56 of 1996 (as read before its amendment by Act 19 of
2005), which placed a cap of R25 000 on certain claims of people who used private
transport as passengers and who were injured in certain kinds of accidents, was
127
confirmed.
Juristic persons. It was held that sections 4(1)(a)–(c) of the National Credit Act 34 of
2005 which are not applicable to juristic persons are not unconstitutional for the pur-
poses of applying section 9(1) of the Constitution – a rational connection exists be-
tween the differentiation and a legitimate governmental purpose, namely the preven-
tion of the reckless provision of credit by institutions to people who cannot afford
128
credit.
5 Steps to apply the right

In Harksen v Lane NO,129 the Constitutional Court proposed the following steps:
“(a) Does the provision differentiate between people or categories of people? If so,
does the differentiation bear a rational connection to a legitimate government
purpose? If it does not then there is a violation of [s 9(1) of the Constitution].
Even if it does bear a rational connection, it might nevertheless amount to dis-
crimination.
________________________
121 Van der Walt v Metcash Trading Ltd 2002 5 BCLR 454 (CC), 2002 4 SA 317 (CC).
122 Bannatyne v Bannatyne 2003 2 BCLR 111 (CC).
123 Nyathi v MEC for the Department of Health, Gauteng 2008 9 BCLR 865 (CC), 2008 5 SA 94 (CC)
paras 45, 47.
124 Biowatch Trust v Registrar Genetic Resources 2009 10 BCLR 1014 (CC), 2009 6 SA 232 (CC) para
17.
125 Print Media South Africa v Minister of Home Affairs 2012 12 BCLR 1364 (CC), 2012 6 SA 443
(CC).
126 Ronald Bobroff and Partners Inc v De la Guerre; South African Association of Personal Injury Lawyers
v Minister of Justice and Constitutional Development 2014 4 BCLR 430 (CC), 2014 3 SA 134 (CC).
127 Mvumvu v Minister of Transport 2011 5 BCLR 488 (CC), 2011 2 SA 473 (CC).
128 Standard Bank v Hunkydory Investments (No 1) 2010 1 SA 634 (WCC), 2010 4 BCLR 374 (WCC).
See Kok A “Not so hunky-dory: failing to distinguish between differentiation and discrimina-
tion” 2011 THRHR 340–346.
129 1997 11 BCLR 1489 (CC), 1998 1 SA 300 (CC) para 53.
(b) Does the differentiation amount to unfair discrimination? This requires a two-
stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a
specified ground, then discrimination will have been established. If it is not
on a specified ground, then whether or not there is discrimination will de-
pend upon whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair human dignity or to affect
them adversely in a comparable serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it has been found to have been on a specified ground,
then unfairness will be presumed. If on an unspecified ground, unfairness
will have to be established by the complainant. The test of unfairness fo-
cuses primarily on the impact of the discrimination on the complainant and
others in his or her situation.
If at the end of this stage of the inquiry, the differentiation is found not to be un-
fair, then there will be no violation of [s 9(3) of the Constitution].
(c) If the discrimination is found to be unfair then a determination will have to be
made as to whether the provision can be justified under the limitation clause . . .”
Although the Harksen steps are formally repeated in almost all court judgments, they
are not always followed in the judgments, because the guidelines are confusing and
not well integrated with the right to equality as a whole and with the general provi-
sions on the application of the Bill of Rights. The court did not say anything on the
application of the general limitation clause to unequal treatment that does not
amount to unfair discrimination; the court employed the rational relationship test as
a threshold requirement for the application of the general limitation clause, where-
as the test is part and parcel of the general limitation clause; and dealing with the
question whether unequal treatment amounts to unfair discrimination in two phases
(that is, distinguishing between discrimination and differentiation in section 9(1)) is
unnecessary because the courts apply the same test to both categories.
The following steps are proposed within the framework of the discussion in this
chapter of section 9 and how it fits in with the general provisions of the Bill of
Rights.
1. Does the rule or action of somebody bound by the right differentiate direct or indirectly in
respect of bearers of the right? If the answer is no, the inquiry ends.
2. If the answer to 1 is yes, what kind of differentiation is involved: unfair discrimination, differen-
tiation that does not amount to unfair discrimination or affirmative action? This question can
best be answered by starting to determine whether it is unfair discrimination, namely dif-
ferentiation that violates human dignity or has a similar serious consequence (section
9(3)). If it is not, it would be differentiation that does not amount to unfair discrimina-
tion (section 9(1)). Affirmation action may be either unfair discrimination or ordinary
differentiation which aims at improving the position of persons disadvantaged by unfair
discrimination (section 9(2)).
3. Can the kind of differentiation as determined in question 2 be justified in terms of the
general limitation clause or, in the case of affirmative action, in terms of section 9(2)?
• The test for unfair discrimination is, in principle, a very strict test which includes a
rational relationship and sets stricter standards in respect of the purpose of the limi-
tation and its relation with the limitation.
• The test for mere discrimination is, in principle, a weak test requiring mainly that a
rational relation must exist between a differentiation and its purpose.
• The test for affirmative action is that the measure must be reasonably capable of
promoting equality of persons disadvantaged by unfair discrimination and when hu-
man dignity is disparaged, the test for unfair discrimination should be applied.
Chapter 20
Human dignity – Life
1 Human dignity 347

2 Life 354
1 Human dignity
1.1 Section 10 347
1.2 Protected conduct and interests, and bearers of the right 347
1.3 Persons and institutions bound by the right and their duties 351
right) 352
1.5 Particular matters 353
1.1 Section 10
10 Everyone has inherent dignity and the right to have their dignity respected and
protected.
1.2 Protected conduct and interests, and bearers of the right

The right to human dignity protects the intrinsic human worth of all people.1
People are protected by this right simply because they are human. The right protects
the worth that attaches to the actuality of being human. That is what “inherent”
means. Human dignity is not earned and cannot be abandoned. Although self-
fulfillment, autonomy, reputation and intellectual capacity may be incidences of
being human, even people who are not capable of securing their self-fulfillment,
who do not have any intellectual capacity or reputation, who cannot exercise their
own judgment, or who are not aware of their own human worth are bearers of the
right to human dignity. No human being may be treated as something less than
2
human and as a mere object. Wood provides the following explanation of what this
means:
“To speak of ‘human dignity’ amounts to an impudent declaration that the supreme
rank or quality or honour that any human being could claim is simply their humanity
itself. It is a direct defiance of the entire value system underlying traditional aristo-
cratic society, and indeed any conception of human life that gives some human beings
a status superior to that of others in any respect whatsoever. Since no social order that
________________________
para 35; Bhe v Magistrate Kayelitsha; Sibi v Sithole; SA Human Rights Commission v President of the
RSA 2005 1 BCLR 1 (CC), 2005 1 SA 580 (CC) para 48.
2 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 271, 328; Prinsloo v Van der
Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC) para 31; Khumalo v Holomisa 2002 8 BCLR
771 (CC), 2002 5 SA 401 (CC) para 27. In Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642
(CC) para 74, it was stated that the right to human dignity also protects “the fundamental dig-
nity of the human body which is not simply organic”.
347
has ever existed has been able to do without some forms of social superiority or inferi-
ority, the concept of human dignity remains a radical concept, one that challenges
fundamentally our conceptions of ourselves and our society, whoever and wherever we
may be. . . . It is a direct challenge to every conception of human self-worth based on
anything at all beyond humanity itself – not only on conceptions based on birth,
wealth, power or social status, but even those based on intelligence, talent, achieve-
3
ment, or even moral character.”
Everyone’s intrinsic worth as a human being is reflected by the interests protected by
all the other rights. The free exercise of all other rights are manifestations of human
dignity.
This is also reflected in the constitutional duties of the state and of all other persons
4
and institutions to respect, protect, promote and fulfil the rights of others. It is in
this sense that human dignity constitutes the cornerstone for the protection of all
other rights.5
An infringement of human dignity usually occurs within the context of the
infringement of other rights. For example, a physical assault violates physical
integrity, but it also often violates a person’s human dignity.6 Complainants often
list, in addition to the infringement of other rights, the infringement of the right to
human dignity. When such an overlap occurs, the courts very often concentrate only
7
on the infringement of the other rights. The Constitutional Court formulated the
following rule::
“Where the Constitution contains both a specific right, and a more general right, it is
appropriate first to invoke the specific right. . . [For example:] It is incontestable that
access to housing and basic services is important and relates to human dignity. It re-
mains most appropriate though to rely directly on the right of access to adequate
8
housing, rather than on the more general right to human dignity.”
However, notwithstanding the overlap, and notwithstanding the fact that human
dignity is reflected in all other rights, the right to human dignity is a separate right
in the South African Constitution. The right has an important role to play both as a
________________________
3 Wood A “Human dignity and the realm of ends” 2008 Acta Juridica 47, 49.
4 Ss 7(2) and 8(2) of the Constitution.
5 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 44, 144, 328–329; National
Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC), 1999 1 SA 6
(CC) para 120. See, on human dignity as the foundation of privacy, Khumalo v Holomisa 2002 8
BCLR 771 (CC), 2002 5 SA 401 para 27; and, as foundation of the freedom to choose a trade,
occupation or profession, Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529,
2006 3 SA 247 (CC) para 59.
6 Le Roux v Dey 2011 6 BCLR 577 (CC), 2011 3 SA 274 (CC) para 141. In Teddy Bear Clinic for
Abused Children v Minister of Justice and Constitutional Development 2013 12 BCLR 1429 (CC), 2014
2 SA 168 (CC) the court held that the imposition of criminal liability on children under that
age of 16 for a very wide range of consensual sexual conduct by ss 15 and 16 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 violated the right to
human dignity, privacy and the rights of children.
7 Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10 BCLR
1382 (CC), 1995 4 SA 631 (CC) para 10; Dawood; Shalabi; Thomas v Minister of Home Affairs 2000
8 BCLR 837 (CC), 2000 3 SA 936 (CC) para 35. However, there are instances in which courts
prefer to deal with the matter in terms of the right to human dignity rather than other rights.
In Minister of Home Affairs v Watchenuka 2004 2 BCLR 120 (SCA), 2004 4 SA 326 (SCA), it was
held that the right to human dignity includes the right to engage in productive work “even
where that is not required in order to survive” (para 27). However, the court held that this as-
pect of the right to human dignity was limited by the fact that foreigners are not the bearers of
the right to freedom of trade, occupation and profession in s 22 of the Constitution (para 28).
8 Nokotyana v Ekurhuleni Metropolitan Municipality 2010 4 BCLR 312 (CC) para 50.
Chapter 20 Human dignity – Life 349
separate right and within the context of the infringement of other rights. In this
respect, the following situations may be distinguished:
(a) There are rights the infringement of which always amounts to the infringement
of human dignity in the sense of disparaging the prejudiced person’s inherent
human condition: for example, the right to life and the prohibition of cruel,
inhuman and degrading punishment and treatment and the prohibition of
slavery.
(b) The infringement of all other rights does not necessarily entail the infringement
of human dignity. When freedom of movement is limited by traffic regulations,
or the right to property is limited by the duty to pay taxes, or the right to free-
dom of association is limited by a requirement that marriages must be regis-
tered, or the right to just administrative action is limited by certain procedural
requirements to access state benefits, human dignity is not necessarily also vio-
lated.9 However, it could happen that human dignity is also impaired when the-
se rights are limited and when this happens, such impairment is an aggravating
factor in terms of the nature and extent of a limitation.10 But, as stated above,
not all limitations of other rights always violate the right to human dignity. It is
wrong to regard all limitations of all other rights as a limitation of the right to
human dignity. In the minority judgment in AB v Minister of Social Welfare the
judges seemingly considered all interferences to make choices as a disparage-
ment of human dignity.11 This approach is too broad. All rights in the Bill of
Rights empowers one to freely choose the way in which one performs the ac-
tions and protects and promotes the interests protected by the rights and not
every limitation of other rights amounts to a violation of human dignity. Such a
complete overlap would mean that in certain instances a weak test for the in-
fringement of “human dignity” will then have to be applied. For example, it
makes little sense to say that human dignity is impaired whenever the right to
occupational freedom is limited, but then to apply a weak rational relationship
test because the limitation involves a so-called economic regulation. Such a re-
sult detracts from the seriousness of an infringement of the right to human
dignity as a separate right. If the right to human dignity is considered subsidiary
to all other rights and if any infringement of any other right is considered an
infringement of human dignity, infringement of the right to human dignity
could be trivialised and the usefulness of the impressive variety of rights in our
Bill of Rights could be undermined.
(c) The right to human dignity may serve to protect conduct and interests which
are not protected by other rights in the Bill of Rights.12 This should only hap-
pen when the conduct and interests concerned are in no way protected by oth-
er rights. This should also happen only when the conduct and interests not
________________________
9 Dendy v University of the Witwatersrand 2007 8 BCLR 910 (SCA) paras 18, 24.
10 Eg, the general limitation clause is applied more strictly to unfair discrimination (which may
involve the infringement of human dignity or similar serious consequences) than to other
forms of unequal treatment (see ch 19 para 4).
11 AB v Minister of Social Welfare 2017 3 BCLR 267 (CC), 2017 3 SA 570 (CC) para 110 n 118.
para 36. See, also, Booysen v Minister of Home Affairs 2001 7 BCLR 645 (CC), 2001 4 SA 485
(CC). In Ferreira v Levin; Vryenhoek v Powell 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 49,
Ackermann J argued that, because of the inseparable link between human dignity and the
right to personal freedom, the latter right covers all freedoms not covered by other rights. The
majority held that the protection of human dignity does not necessitate such a wide interpreta-
tion of the right to personal freedom (para 74).
protected by any other right are similar to those protected by the rights re-
ferred to in (a) above where their infringement always overlaps with the viola-
tion of the right to human dignity.
Within the framework of (c), the Constitutional Court considers the right to hu-
man dignity as the primary right that protects one’s freedom to entering into and
13
sustain of permanent intimate relationships, for example, marriage relationships.
However, in doing so, the court ignored the fact that there is indeed a specific
right in the Bill of Rights that protects these relationships. The right to freedom of
association protects the freedom to entering into and sustain relationships. The
practical significance of this is that limitations of the freedom to conclude mar-
riages and of marital cohabitation may take so many forms that it cannot be ac-
cepted that all of them necessarily overlaps with the right to human dignity. Some
of them, such as some of the formal requirements for the conclusion and registra-
tion of a marriage, may constitute less serious forms of the limitation of the right to
freedom of association which could be justifiable in terms of weaker limitation re-
quirements than would be the case if human dignity is also impaired. In Minister of
Home Affairs v Watchenuka, the Supreme Court of Appeal held that human dignity
relates to the “ability to live without positive humiliation and degradation” and that
this aspect of the right to human dignity protects destitute foreign asylum-seekers
14
against prohibitions on work. This is a justified application of section 10, because
foreigners are not bearers of the right to freedom of trade, occupation and profes-
sion in section 22 of the Constitution and their exclusion from the protective am-
bit of section 22 cannot possibly reflect on their status as bearers of the right to
human dignity in section 10.
The constitutional concept of dignity covers both the individual’s right to
reputation and the right to a sense of self-worth; both reputation and self-worth are
therefore covered under common-law actio iniuriarum and the common law action
15
for defamation. Within the context of the law of defamation, only aspects of the
reputation of natural persons that concern their inherent human qualities should
form part of constitutionally protected human dignity. However, defamation cov-
ers more than the infringement of human dignity. There may, therefore, be in-
fringements of reputation, in the broad sense of the word that do not affect human
16
dignity in the constitutional sense. This distinction is important in order to afford
the reputation of juristic persons private law protection without detracting from
the fact that juristic persons cannot be bearers of the right to human dignity.
In Jordan v S, it was said that although the prohibition of prostitution impairs the
human dignity of prostitutes for the purposes of unfair discrimination, it does not
do so as “a criminal prohibition on its own”, apparently because in the case of the
criminal prohibition, the human dignity of those engaged in the criminal activity
________________________
paras 36–37. See Krüger R “Appearance and reality: Constitutional protection of the institu-
tions of marriage and the family” 2003 THRHR 285.
14 Minister of Home Affairs v Watchenuka 2004 2 BCLR 120 (SCA), 2004 4 SA 326 (SCA) paras 32,
33.
15 Le Roux v Dey 2011 6 BCLR 577 (CC), 2011 3 SA 274 (CC) paras 138, 139.
16 Eg, allegations that somebody has committed theft, fraud or adultery differ from allegations
that somebody is an animal or a thing: see Mangope v Asmal 1997 4 SA 277 (T) 286–287. The
Supreme Court of Appeal usually treats the right to dignity as a broad concept that includes
reputation (Mthembi-Mahanyele v Mail & Guardian 2004 11 BCLR 1182 (SCA) paras 6, 33).
However, the following more cautious statements of the court in Independent Newspapers Hold-
ings Ltd v Suliman 2005 7 BCLR 641 (SCA) para 52 are to be welcomed: “Overlapping is bound
to occur whenever a defamatory statement is made which is at one and the same time an af-
front to the person’s dignity. Some maintain that every injuria (including those relating to cor-
pus and fama) adversely affects dignitas. It is not necessary to decide whether that is always so; it
is sufficient to acknowledge that it will often be so.”
has been reduced to such an extent that the prohibition does not affect the human
dignity of prostitutes; the court said that such diminution of human dignity arises
from engagement in commercial sex work which devalues “the respect that the
Constitution regards as inherent in the human body”. 17 However, although a meas-
ure may infringe human dignity only because it differentiates on certain grounds
18
and not because of its impact otherwise, Jordan v S was not such a case. Any “dimi-
nution” of human dignity must be justified in terms of the limitation clauses, even
19
within the context of a waiver of rights. The moral and social attitude of a society
that embodies disapproval of commercial sex for those who receive the money (but,
strangely enough, not for those who pay the money) could possibly be presented as
a purpose for the limitation of the right to human dignity by criminalising the
activities, but the “intrinsic worth of human beings shared by all people”20 exists
regardless of what one thinks of one’s own worth as a human being, regardless of
how somebody else rates one’s ideas of one’s worth, and even regardless of whether
the courts read a rule into a Constitution to the effect that one loses one’s right to
human dignity when one does not respect one’s human dignity as much as the
Constitution expects one to do. Constitution-makers and those who interpret and
apply constitutions do not create and cannot obliterate human dignity as inherent
human feature by their definitions.
The right to human dignity does not protect juristic persons.
As explained above, the reputation of juristic persons is protected by aspects of the
concept ‘reputation’ that do not involve human dignity.
1.3 Persons and institutions bound by the right and their duties
The right binds all organs of state. The nature of the right and the duties imposed
by the right are such that the right may also bind private persons.
The duties of those bound by the right essentially require that human dignity is not
impaired. Nobody may treat another human being as a mere object or as something
21
less than human.
Nobody may disparage the human condition of another human being. Section 10
expressly states that the right must be protected. The state must enact legal rules
and take measures to prevent the impairment of human dignity by organs of state
and private persons. In addition to the separate right to human dignity, the South
African Bill of Rights contains rights prohibiting (that is, providing for the duty to
22
refrain from) certain actions which clearly impair human dignity or prescribing
23
actions to prevent its impairment.
________________________
17 Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) paras 74–75.
18 See Moseneke v Master of the High Court 2001 2 BCLR 103 (CC), 2001 2 SA 18 (CC) para 22.
19 See, on waiver of rights, ch 16 para 5.
21 In S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 271; Prinsloo v Van der
Linde 1997 6 BCLR 759 (CC), 1997 3 SA 1012 (CC) para 31; Advance Mining Hydraulics (Pty) Ltd
v Botes NO 2000 2 BCLR 119 (T), 2000 1 SA 815 (T) 127.
22 Eg, the right in s 12(1)(c)–(e) to be free from all forms of violence, not to be tortured, and not
to be treated or punished in a cruel, inhuman or degrading way and the prohibition in s 13 of
slavery and servitude.
23 S 35(2)(e) provides that everyone who is detained has the right to conditions of detention that
are consistent with human dignity.
The German Federal Constitutional Court held that the state’s duty to protect human
dignity does not include measures to prevent individuals from becoming socially desti-
tute: the duty primarily concerns protection against actions that could impair human
dignity. According to German law, human dignity is not legally impaired by the mere
existence of social destitution, but only when the situation has been caused by the in-
24
human treatment by the state or other persons. However, within the context of the
South African Bill of Rights, this matter must be viewed in conjunction with the state’s
duties in terms of the rights to housing, health care, food, water and social security in
sections 26 and 27. The duties imposed by these rights serve to prevent the impair-
ment of human dignity in situations of social destitution, regardless of how such situa-
tions might have arisen or by whom they might have been caused. The German dis-
tinction between cause and effect is not relevant in the South African constitutional
framework.
Examples of non-compliance with duties imposed by the right as dealt with by South
African courts appear in paragraph 1.5 below.
1.4 Justification for non-compliance with the duties (limitation of the right)
The right to human dignity may be limited.
Perceptions that the right to dignity is inviolable may give rise to skepticism about
25
the feasibility of the entrenchment of a separate right to human dignity. If the right
were to be inviolable, killing in defence of one’s own life or incarceration as a form
of punishment would never be permissible and to avoid such consequences, trends
could develop to either interpret the protective ambit of the right very restrictively,
or to avoid artificially conclusions that the right has been limited.26 In this way, the
right could become a dead letter. At the same time, one of the reasons why every
infringement of any other right should not be equated inconsiderately with the
violation of human dignity is that such an approach could detract from the
seriousness with which violations of human dignity must be considered within the
27
framework of the limitation of rights.
The requirements for the limitation of the right to human dignity are extremely
strict.
Because the right to human dignity literally gives expression to a fundamental value
28
on which the Republic is founded and because serious human rights abuses are
associated world-wide with the denial and disparagement of human dignity, it
should not be easily accepted that there could be a purpose which can justify the
infringement of human dignity in an open and democratic society based on human
dignity.29 Such may be the case when the purpose of the limitation amounts to the
________________________
24 BVerfGE 1, 97/94.
25 S 1 of the German Constitution provides that human dignity is “inviolable” and hence the
German scepticism concerning the entrenchment of a separate right to dignity. Cf Doehring K
“Die Menschenwürde – Norm oder Phantom” in Jürgen Bröhmer et al Festschrift für Georg Ress zum 70.
Geburtstag am 21. Januar 2005 (2005) 1145–1150.
26 Möller K “Abwägungsverbote im Verfassungsrecht” 2007 Der Staat 109 117: “Wenn nämlich
Rechtsverletzungen als etwas Negatives angesehen werden, dann scheint daraus gerade zu fol-
gen, dass sie ‘minimiert’ werden sollten.”
27 See para 2.2(b) above. See the conclusions of Botha H “Human dignity in comparative per-
spective” 2009 Stell LR 217–220.
28 Ss 1, 36 and 39 of the Constitution.
29 Ex parte Minister of Safety and Security: In re S v Walters 2002 7 BCLR 663 (CC), 2002 4 SA 613
(CC) para 28: “[T]he right to life, to human dignity and to bodily integrity are individually and
collectively essential and collectively foundational to the value system prescribed by the
protection of the human dignity of others or another interest which is constitu-
tionally accorded similarly singular status. Even then, the relation between the
limitation and its purpose will be closely scrutinised and the persons or institutions
limiting the right will be afforded no discretion with regard to alternative ways of
30
limiting the right – the courts will require them to use the “best” method.
As far as the nature and extent of the factual limitation of the right (as referred to
in section 36(1)(c)) is concerned, the Constitutional Court observed that some
attacks on human dignity are more serious than others. The court provided the
following examples:
• The violation of dignity in the context of the violation of other rights, for exam-
ple in the context of unfair discrimination on the grounds listed in section 9(3)
or the invasion of the right to privacy, is more serious than otherwise.
• The power relationship between the parties concerned is relevant – a violation of
the dignity of a relatively powerless and vulnerable person by a powerful strong
31
person in authority is more serious than otherwise.
1.5 Particular matters

South African courts have considered the following matters concerning the limitation
of the right to human dignity.
32
(a) The Constitutional Court invalidated the imposition of the death penalty and
corporal punishment for juveniles in terms of the Criminal Procedure Act 51 of
33
1977.
(b) The handing over of suspects for removal to another country, where they are to
stand trial on criminal charges in respect of which they could be sentenced to
death, without first securing an assurance that the death penalty will not be im-
34
posed, is unconstitutional.
(c) A punishment to deter or to reform which is disproportionate to the seriousness of
the offence in question is unconstitutional because it uses the individual as a
35
means to an end.
36
(d) The use of lethal force to effect arrests for less serious crimes is unconstitutional.
37
(e) The taking of fingerprints does not impair human dignity.
(f) The impairment of human dignity through unequal treatment constitutes unfair
38
discrimination for the purposes of the right to equality.
(g) The courts said that for the purposes of the law of defamation, human dignity in-
39
cludes reputation or fama. In National Media Ltd v Bogoshi, the Supreme Court of
Appeal held that the common law as such (that is, without taking the Bill of Rights
________________________
Constitution. …It therefore follows that any significant limitation of any of these rights, would
for its justification demand a very compelling countervailing public interest.”
30 See ch 18 para 2.3.2(e).
31 Le Roux v Dey 2011 6 BCLR 577 (CC), 2011 3 SA 274 (CC) para 46.
32 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 57, 95, 144, 216, 271–272,
317, 327–337.
33 S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) paras 28, 29, 53, 89.
34 Mohamed v President of the RSA 2001 7 BCLR 685 (CC), 2001 3 SA 893 (CC) para 48; Minister of
Home Affairs v Tsebe 2012 10 BCLR 1017 (CC) para 74.
35 S v Dodo 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC) para 38.
36 Ex parte Minister of Safety and Security: in re S v Walters 2002 7 BCLR 663 (CC), 2002 4 SA 613
(CC) para 30.
37 S v Huma 1996 1 SA 232 (W) 236.
38 Ch 19 para 2.
into account) was incorrectly expounded in an earlier judgment of the court and
that, to avoid liability for the publication of defamatory statements, the media may
40
establish that they were not negligent. In Khumalo v Holomisa, the Constitutional
Court held that the common-law rule that the falseness of a defamatory statement
does not constitute an element of defamation does not unjustifiably limit the right
to freedom of expression for the purpose of protecting human dignity. In motivat-
ing its decision, the court did not refer expressly to the factors referred to in sec-
41
tion 36(1)(a) to (e). It nevertheless considered all of them. In Dikoko v Mokihatla,
the Constitutional Court held that the purpose of the limitation of the right to
dignity by the immunity of civil liability for defamation of members of legislatures
42
is the advancement of democracy through open and free expression. However,
43
the privileged statements may not contain personal attacks.
44
(h) The appointment of a curator without full justification violates human dignity.
(i) Lack of capacity and administrative convenience is not a legitimate purpose for the
limitation of the right to human dignity of illegal foreign asylum seekers by a pol-
icy or practices at a refugee reception office to process only 20 asylum-seeker per-
45
mits per day.
(j) Once there is a reasonable suspicion that a crime has been committed, the right to
dignity does not protect one against being named a suspect. The Constitution
Court stated that in the law of defamation “[one] of the primary defences against
defamation, viewed as an injury to one’s dignity, is the defence of truth” and that
since the existence of a reasonable suspicion “is the truth” the mere communica-
tion of the objective facts to somebody does not infringe human dignity; reason-
able suspicion does not signify guilt and a person has the right not to be presumed
46
innocent under section 35(3)(h) of the Constitution.
(k) School policies that provide for the automatic exclusion of a learner from the
47
school when she gets pregnant violate the right to human dignity.
(l) The Constitutional Court held that the action for damages for contumelia and loss
of consortium against a person who had committed adultery with the husband or
wife of a complainant is no longer available in our law because the purpose of the
action, namely to protect the dignity of the complainant is outweighed by the
rights of the adulterous parties to control over their bodies, their privacy and free
48
association.
2 Life
2.1 Section 11 355
2.2 Protected interests and bearers of the right 355
right) 356
________________________
40 1999 1 BCLR 1 (SCA), 1998 4 SA 1196 (SCA).

41 Khumalo v Holomisa, 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC) paras 21–24, 28, 39, 43–44.
42 Dikoko v Mokhatla 2007 1 BCLR 1 (CC), 2006 6 SA 235 (CC) para 1.
43 Dikoko v Mokhatla 2007 1 BCLR 1 (CC), 2006 6 SA 235 (CC) para 40.
44 Judin v Wedgwood 2003 5 SA 472 (W) para 17.
45 Kiliko v Minister of Home Affairs 2007 4 BCLR 416 (C), 2006 4 SA 114 (C) paras 29, 30.
46 Thint Holdings (Southern Africa) (Pty) Ltd; Zuma v National Director of Public Prosecutions 2009 3
BCLR 309 (CC), 2009 3 BCLR 309 (CC) paras 50, 51.
47 Head of Department, Department of Education, Free State Province v Welkom High School / Harmony
High School 2013 9 BCLR 989 (CC) paras 4, 108, 115.
48 DE v RH 2015 9 BCLR 1003 (CC), 2015 5 SA 83 (CC) paras 60, 62. See Carnelley M “Die
doodskoot vir of slegs die verwonding van die eis teen die derde-party-egbreker” 2015 Litnet
Adkademies Regte 333–346; Neethling J “Owerspel as gedingvatbare aksiegrond” 2015 LitNet
Akademies Regte 397–415.
2.1 Section 11
11 Everyone has the right to life.
2.2 Protected interests and bearers of the right

49
The right to life protects the physical-biological existence of human beings.
In South Africa, the right to to life protects only physical biological exsitence; it does
not guarantee a right to a meaningful existence and need not be interpreted to
include other rights expressly guaranteed in the Constitution. The fact that the right
to life overlaps in most cases with other rights in the Bill of Rights, for example, the
rights to human dignity and physical and psychological integrity and freedom of
expression are also destroyed when the right to life is violated, does not mean that
all these rights have to be incorporated in the protective ambit of the right to life. In
a certain sense, the exercise of all rights contributes towards the quality of a person’s
physical-biological life. When a bill of rights includes so-called social rights in order
to secure a minimum level of human subsistence,50 it is not necessary to read the
51
protective ambit of these rights into the definition of the right to life. In South
Africa, separate rights affords protection against actions that impede or fail to
provide access to adequate housing, health care, food, water and social security.
These instances must be distinguished from those in which the physical-biological
existence of human beings is infringed or threatened by socio-economical and
52
ecological degradation, war, internal disorder, and military and security action.
These constitute infringements of, or threats to, the right to life.
Only natural persons are protected. The right does not protect juristic persons.
The right to life is an individual right which protects only the particular individual
whose physical existence is at stake. It is not a right of prospective parents to create
life. Their right to make decisions concerning reproduction is covered by the right
to personal freedom and security in section 12(2)(a). The right to life is not a right
that scientists may rely upon for the purposes of scientific research. This is a matter
concerning the limits of the scope of the right to freedom of scientific research in
section 16(1)(d).
53
A foetus is not considered a bearer of the right to life. This does not mean that
pre-natal life is irrelevant for constitutional purposes. In respect of the constitution-
ality of the termination of pregnancies, the protection of pre-natal life during the
different phases of pregnancy plays a role in determining the purposes for the
limitation of certain rights of women, most notably their right to bodily and psycho-
logical integrity which includes the right to make decisions concerning reproduc-
tion and the right to security and control over their bodies.54 According to the
________________________
49 See on the value of the right to life, Malherbe EFJ and Venter R “Die reg op lewe, die waarde
van menslike lewe en die eutanasie-vraagstuk” 2011 TSAR 466, 469–470.
50 In respect of the environment, housing, health care, food, water, social security, and education
(ss 24, 26, 27 and 29).
51 Soobramoney v Minister of Health, KwaZulu-Natal 1997 12 BCLR 1696 (CC), 1998 1 SA 765 (CC)
para 15. In India, the right to life has been interpreted as a right to a livelihood. See S v Mak-
wanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) para 326.
52 See Du Plessis LM and De Ville JR “Personal rights: life, freedom, and security of the person,
privacy, and freedom of movement” in Van Wyk D, Dugard J, De Villiers B and Davis D (eds)
Rights and Constitutionalism: The New South African Legal Order (1994) 215–216.
53 Christian Lawyers Association of SA v Minister of Health 1998 11 BCLR 1434 (T), 1998 4 SA 1113 (T).
54 S 12(2)(a) and (b). See in respect of wrongful life debates, Van Niekerk C “Wrongful life
claims: a failure to develop the common law?” 2012 Stell L R 527–539.
Choice on Termination of Pregnancy Act 92 of 1996, the requirements for a termi-
nation of pregnancy are less strict during the first stages of pregnancy than during
55
the last stage.
The right binds all organs of state. The nature of the right and the duties that ensue
from it are such that private persons are bound by the right.
56
The duties of the state to respect, protect, promote and fulfil the right include that
the state may, in principle, not use killing as a form of punishment and methods for
apprehending people that could cause death. The state must also take preventative
measures to protect human life against the actions of its own officials and any other
individual.57 The state may not extradite a person to another country to stand trial
on a charge for which the death penalty may be imposed, unless assurance has been
obtained that the death penalty will not be imposed.58 This rule only applies when
the authorities know that the deported foreigner could face a death sentence.59
The Constitutional Court held that the death penalty constitutes a cruel, inhuman
60
and degrading punishment, because it violates the rights to life and human dignity.
The Constitutional Court invalidated section 49(2) of the Criminal Procedure Act
51 of 1977 which provided for the killing of a person reasonably suspected of having
committed an offence referred to in schedule 1 of the Act when the suspect cannot
be prevented from fleeing by other means. The court held that the use of potentially
lethal force jeopardises the right to life and the limitation could not be justified in
terms of section 36. The list of crimes in schedule 1 is extremely wide and to use it to
distinguish between permissible and impermissible killing is disproportionate to the
61
purpose of apprehending suspects.
The handing over of a suspect for removal to another state to stand trial on crimi-
nal charges in respect of which the death penalty may be imposed, is unconstitu-
62
tional, because it threatens the right to life. This approach is followed in most states
that have abolished the death penalty.
________________________
55 Termination on demand is only allowed during the first trimester; during the second trimester
only when the mother’s mental of physical health is endangered, the foetus may suffer from
severe abnormality, in the case of rape or incest, or when the mother’s social or economic cir-
cumstances is affected dramatically; during the third trimester only if the foetus is severely mal-
formed or if the life of the mother or foetus is endangered.
56 S 7(2).
57 Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC), 2001 4 SA 938 (CC) para 45.
58 Mohamed v President of the RSA 2001 7 BCLR 685 (CC), 2001 3 SA 893 (CC) para 52; Minister of
Home Affairs v Tsebe 2012 10 BCLR 1017 (CC) para 74.
59 Jeebhai v Minister of Home Affairs 2007 10 BCLR 1146 (T) para 37.
60 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 80 and 95.
61 Ex parte Minister of Safety and Security: In re S v Walters 2002 7 BCLR 663 (CC), 2002 4 SA 613
(CC) paras 28, 30 and 45. In this case, the court did not rule on the constitutionality of killing
in defence of property (para 53 n 66). See in this regard Krause S “Killing in defence of prop-
erty: a constitutional approach” 2012 TSAR 469–485.
62 Mohamed v President of the RSA 2001 7 BCLR 685 (CC), 2001 3 SA 893 (CC) paras 47–48, 52, 54,
58. The rule applies only when the authorities know that the deportee could face a death sen-
tence – Jeebhaj v Minister of Home Affairs 2007 10 BCLR 1146 (T) para 37.
The exercise of their right to religious freedom by parents who refuse to consent
to the administering of a blood transfusion that can save the life of their terminally-
63
ill child is not a purpose that justifies the limitation of the right to life of the child.
In 2016 the Supreme Court of Appeal described the South African legal position
on suicide and euthanasia as follows:
• Neither suicide or attempted suicide is a crime.
• A person may refuse treatment that would otherwise prolong life if the patient
has the medical and legal capacity to make the decision. When the person lacks
these capacities, a doctor does not commit a criminal offence by ceasing treat-
ment that serve no purpose to prolong life after taking such a decision in con-
junction with family and other people responsible for the patient. Where there is
uncertainty, or difference of opinion, a court may be approached for a declara-
tory order.
• When health cannot be restored a doctor commits no offence with palliative
treatment that may incidentally shorten life.
• Mercy killing constitutes murder. In case of assistance with active voluntary
euthanasia or assistance with suicide the consent of the patient is not a defence
on the charge of murder. Whether the common law were to be developed in re-
gard to consent as a defence, calls for a full and proper consideration which has
64
not at that stage been done by the courts.
________________________
63 Hay v B 2003 3 SA 492 (W) 494.

64 Minister of Justice and Correctional Services v Estate Late Stransham-Ford. 2017 3 BCLR 364 (SCA),
2017 3 SA 152 (SCA) paras 28–56. For a thorough discussion of the limitation of the right to
life by euthanasia and assisted suicide, see Malherbe EFJ and Venter R “Die reg op lewe, die
waarde van menslike lewe en die eutanasie-vraagstuk” 2011 TSAR 466.
Chapter 21
Personal freedom and security
Slavery, servitude, forced labour
Movement
1 Personal freedom and security 359

2 Slavery, servitude and forced labour 373
3 Movement 373
1 Personal freedom and security

1.1 Section 12 359
1.2 Protected conduct and bearers of the right 359
right) 366
1.5 Particular matters 368
1.1 Section 12
12(1) Everyone has the right to freedom and security of the person, which includes
the right –
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity which includes the
right –
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed
consent.
1.2 Protected conduct and bearers of the rights

The right to personal freedom and security protects the physical and psychological
integrity of human beings.
Section 12 describes both the conduct and interests which the right protects (which
is discussed in this paragraph) and various duties of those who are bound by the
right (which is discussed in paragraph 1.3).
Various expressions are used in section 12 to describe the protected conduct and
interests, namely “freedom and security of the person” in section 12(1), and “bodily
and psychological integrity” in section 12(2) which includes “to make decisions
concerning reproduction” in section 12(2)(a) and “security in and control over the
body” in section 12(2)(b).
359
(a) “Freedom . . . of the person”, in the first sentence of section 12, protects a specific
aspect of bodily and psychological integrity, namely the ability to control bodily
1
movement, the body’s position in space.
The phrase “freedom . . . of the person” does not protect a general freedom of
2
choice which could be used to cover actions not protected by other rights. The
qualification “of the person” and the rights and duties described in the rest of article
12 clearly indicate that the phrase refers to bodily movement.
The ability to control bodily movement is also protected by other rights, for ex-
ample, the right to freedom of movement in section 21 and the rights of arrested,
3
detained and accused persons in section 35. Direct infringements of bodily freedom –
for example, through arrest, detention and imprisonment in order to enforce legal
rules – will probably, in practice, be dealt with mainly in terms of both sections 12
and 35, whereas the right to freedom of movement in section 21 will be applied to
the specific rights enumerated in section 21(2) and (3), namely the right of every-
one to leave the Republic, the right of citizens to enter, remain in and reside any-
where in the Republic and the right to a passport.
Persons who for some or other reason do not qualify to be bearers of the rights of
arrested, detained and accused persons are protected by the rights not to be de-
tained without trial and not to be deprived of freedom arbitrarily without just cause
4
in section 12(1).
Respondents in a civil application for committal to prison for contempt in not comply-
ing with a civil order, are protected by section 12(1) and not by section 35; however,
they must be afforded the same protection as respondents in punitive committal pro-
ceedings and the standard of proof that applies in criminal cases must therefore be
5
applied in such a case. The phrase “accused person” in section 35(3) does not include
________________________
1 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) para 28.
2 The minority opinions in Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 BCLR 1 (CC), 1996 1
SA 984 (CC) that “freedom” guarantees a general right to freedom, which could be used when
something is protected by other rights in the Bill of Rights (paras 54–57 and 254), was not fol-
lowed by the majority of the court (paras 170–174, 184 and 189.) Lawyers for Human Rights v
Minister of Home Affairs 2017 10 BCLR 1242 (CC), 2017 5 SA 480 (CC) para 31 refers to “indi-
vidual, physical freedom”). “Freedom of the person” in s 12(1) is not the same as “freedom” in
th th
the 5 and 14 amendments of the US Constitution and “free development of the personality”
in s 2(1) the German Constitution which in both cases serve as residual rights to protect rights
not guaranteed expressly elsewhere in the American and German Constitutions. The examples
of Ackermann J in the Ferreira case para 67 of action that could be covered by a residual free-
dom right (prohibitions on the possession of firearms or liquor, or sport activities on Sunday,
are clearly protected by rights such as the right to property and the right to physical and psy-
chological integrity.
3 Lawyers for Human Rights v Minister of Home Affairs 2017 10 BCLR 1242 (CC), 2017 5 SA 480
(CC) para 47. The court held that the rights in both s 12(1) and s 35(2) were limited by
s 34(1) of the Immigration Act 13 of 2002 which authorised the arrest and detention of for-
eigners pending their deportation (para 58).
4 Although it was said in De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) para
25 that the procedural “freedom rights” of arrested, detained and accused persons are regulated
by s 35 and not by s 12(1)(a), it must be noted that s 35(1) does not deal with all deprivations
of freedom by the arrest, but only with apprehension (arrest) for allegedly committing an
offence.
5 Fakie NO v CCII Systems (Pty) Ltd 2006 4 SA 326 (SCA) para 24; Dezius v Dezius 2006 6 SA 395 (T);
Pheko v Ekhurleni Metropolitan Municipality No 2 2015 6 BCLR 6 BCLR 711 (CC), 2015 5 SA 600
(CC) paras 35–36; Matjabeng Local Municipality v Eskom Holdings; Mkonto v Compensation Solutions
(Pty) Ltd 2017 11 BCLR 1408 (CC), 2018 1 SA 1 (CC) paras 58, 63. In the case of civil remedies
such declaratory relief, a mandamus, or a structural interdict that do not have the consequence
of depriving an individual of their right to freedom of person, the civil standard of proof applies –
the Matjabeng Municipality case above para 64.
Chapter 21 Personal freedom – Slavery – Movement 361
a person who had been sentenced to death before the date upon which capital
punishment was invalidated. However, the deprival of people of their personal free-
dom in terms of procedures for the substitution of imposed death sentences have to
6
be fair under section 12.
In respect of both personal “freedom” and “security”, the Constitutional Court held
that the right to personal freedom and security of the person has substantive and pro-
cedural aspects; the right may be limited for sound reasons (the substantive aspect)
7
and only in accordance with proper procedures (the procedural aspect). The court re-
gards this as part of the definition of the right. In this respect the court echoes American
jurisprudence on the due process provisions in the American Constitution. In South
Africa, these matters concern the limitation of a right and not the description of the
8
protective ambit of a right. The American Constitution does not have a general limita-
tion clause. The South African Constitution has a general limitation clause.
(b) “Security of the person” in the first sentence of section 12(1) protects all other
aspects of bodily and psychological integrity than free bodily movement, for exam-
9
ple, psychological tranquillity. and to make decisions on the bodily condition in
respect of, for example, the replacement of kidneys, the amputation of limbs, the
dyeing of the hair and the decoration of the skin with paint and incisions.
(c) The phrase “a right to physical and psychological integrity” appears in the first sen-
tence of section 12(2). The phrase “physical and psychological” is a general phrase.
It describes the interests protected both by the general right in the first sentence of
section 12(1) and by all its manifestations in section 12(1)(a) to (e) and in section
12(2)(a) to (c). It is not clear why it was used in section 12(2). It may create the
wrong impression that section 12 protects different rights in respectively subsections
(1) and (2). It was probably inserted by the drafters to provide an eloquent intro-
10
duction to the sub-paragraphs in section 12(2).
A person’s psychological integrity can be disturbed and harmed in many ways. It
can, for example, be affected when a prohibition to conclude surrogacy agreements
by infertile persons aggravates the trauma of their childlessness. The constitutionality
of the prohibition then depends on whether it can be justified in terms of the gen-
11
eral limitation clause.
________________________
6 Sibiya v DPP: Johannesburg High Court 2005 8 BCLR 812 (CC), 2005 5 SA 315 (CC) paras 30, 33.
7 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) paras 17–25, 129, 165, 172;
Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) paras 145–146; S v Coetzee 1997 4
BCLR 437 (CC), 1997 3 SA 527 (CC) para 159; S v Boesak 2001 1 BCLR 36 (CC), 2001 1 SA 912
(CC) para 38.
8 Academic endeavours to distinguish between the substantive and procedural aspects of
s 12(1)(a), on the one hand, and s 36 analysis, on the other hand, have not been convincing –
see Pieterse M and Hassim A “Placing human rights at the centre of public health: a critique of
Minister of Health, Western Cape v Goliath” 2009 SALJ 231, 240.
9 See the discussion by Neethling J “Handhawing en miskenning deur die regspraak van die
onderskeid tussen die regte op privaatheid en die liggaam (inbegrepe fisies-sinlike gevoelens)
as selfstandige persoonlikheidsregte” 2005 THRHR 344–349 of Pretorius v Minister of Correctional
Services 2004 2 SA 658 (T), in which the court incorrectly considered interference with psycho-
logical tranquillity by loud music as an infringement of the right to privacy.
10 See the explanation of Du Plessis L and Corder H Understanding South Africa’s transitional Bill of
Rights (1994) 152-153 of the term “security of the person” in s 11 of the Interim Constitution.
11 In AB v Minister of Social Welfare 2017 3 BCLR 267 (CC), 2017 3 SA 570 (CC) paras 82-89. It was
held in the minority judgment that the exclusion by s 294 of the Childrens Act 30 of 2005 of
surrogacy agreements when the commissioning parents do not contribute gametes for fertiliza-
tion can aggravate the psychological harm caused by the infertility of commissioning parents
and that this limitation of the right to psychological integrity could not be justified in terms of
It must also be noted that like the words “freedom of the person” in section
12
12(1), the words “psychological integrity” in the first sentence of section 12(2) do
not refer to a general right to autonomy so that every “stifling of the ability to make
13
a decision can therefore be a violation of psychological integrity”. Like section
12(1) the first sentence of section 12(2) does not guarantee such a general, free-
standing right. All the examples in section 12(2)(a) to (d) and in section 12(1) deal
with freedom in respect of physical and psychological integrity.
(d) “To make decisions concerning reproduction” and “security in and control over their
body” in section 12(2)(a) and (b) focus attention on important aspects of bodily and
psychological integrity on, for example, a decision to have a child or the decision of
14
a pregnant woman to terminate or not to terminate a pregnancy. The Choice on
Termination of Pregnancy Act 92 of 1996 was passed to give effect to this right. Up
15
to now, constitutional challenges against provisions of the Act have not succeeded.
In AB v Minister of Social Welfare, the Constitutional Court held that section
12(2)(a) is not violated by the rule in section 294 of the Childrens Act 30 of 2005
that a surrogate agreement between the woman who will carry the child and pro-
spective parents is not permissible if no gametes of any of the prospective parents
will be used to fertilize the woman. The court held that the right to make decisions
concerning reproduction in section 12(2)(a) protects only decisions by the surro-
gate mother to carry a child and does not apply to decisions to have children by
individual whose gametes will not be used in the surrogacy process. 16
Security in and control over one’s body may be affected by all surgical and other
medical interventions. Informed consent is required for such actions. The require-
ments for informed consent are knowledge, comprehension and consent in respect
of the entire procedure and all its consequences and incapacity to consent is regu-
lated by the rules concerning the substitution of consent by, for example, parents,
17
guardians, curators and courts. All interventions, both those without and those with
18
consent, must comply with the limitation clauses.
All natural persons are bearers of the right. The nature of the right and the nature
of juristic persons are such the juristic persons cannot be bearers of the right.
Private persons and institutions often violate the personal freedom and integrity of
people. The duties in section 12 are of such a nature that they bind private persons
and institutions for the purposes of section 8(2). Furthermore, all state organs must
________________________
12 See (a) above.

13 AB v Minister of Social Welfare 2017 3 BCLR 267 (CC), 2017 3 SA 570 (CC) para 69.
14 This is a better approach than to deal with these issues only with reference to a woman’s right
to privacy– Tribe L American Constitutional Law (1988) 1352. See on the right to make repro-
ductive choices, the contributions in Spencer J and du Bois-Pedain A (eds) Freedom and Respon-
sibility in Reproductive Choice (2006).
15 Christian Lawyers Association v Minister of Health (1) 1998 11 BCLR 1434 (T) in which the court
held that a foetus is not protected by the right to life, and Christian Lawyers Association v Minister
of Health (2) 2004 10 BCLR 1086 (T), 2005 1 SA 509 (T) in which the court held that instances
in which a minor could obtain an abortion without parental consent was based on capacity to
consent and not on age.
16 AB v Minister of Social Welfare 2017 3 BCLR 267 (CC), 2017 3 SA 570 (CC) para 315.
17 Christian Lawyers Association v National Minister of Health 2004 10 BCLR 1086 (T), 2005 1 SA 509
(T) 509 516.
18 Minister of Safety and Security v Xaba 2003 2 SA 703 (D).
protect, promote and fulfil the right. The state complies with its duty to protect the
right against infringement by others through, for example, the law of delict, which
provides for iniuriae such as wrongful and malicious deprivation of liberty, and
through statutory and common law crimes which prohibit acts such as rape, assault,
the administration of poison or other dangerous substances, and crimen iniuria.
Persons and institutions bound by the right have the general duty not limit the
freedom of choice which those protected by the right have in respect of their
physical and psychological integrity.
Section 7(2) provides that the state has a duty to prevent non-compliance with all
these duties, for example, by means of the enactment and enforcement of appropri-
19
ate rules of criminal law, the law of delict and criminal and civil procedure.
Section 12 also describes certain rights by defining duties of those bound by the
rights.
(a) The prohibition on deprival of freedom arbitrarily and without just cause in section
12(1)(a). This provision repeats the general right to bodily freedom in the first
sentence of section 12 by formulating it in the form of a duty. The prohibition
applies to the limitation of free bodily movement both in legal rules as such (for
example, prohibited conduct in the definition of crime and the other elements
20
of liability applicable to that crime) and by the steps taken to enforce the legal
21
rules.
As stated in paragraph 1.2(a) above, “freedom” in section 12(1)(a) does not refer to a
general freedom of action, and since the other provisions of section 12 protect various
other aspects of physical and psychological integrity, it is not necessary to consider all
aspects of the impairment of physical and psychological integrity ensuing from deten-
22
tion to be covered by section 12(1)(a). The rights in the other provisions of section
12, such as the prohibition of all forms of violence, the prohibition of cruel, inhuman
or degrading treatment, the right to psychological integrity and the right to security
and control over one’s body may also be involved. The prohibition must also be read
and applied in conjunction with the guarantees in section 35(1) and (2) in respect of
the deprivation of freedom by arrest and detention, section 28(1)(j) on the detention
of children, and section 37(6) on detention during states of emergency.
The qualification “arbitrarily or without just cause” is a special limitation clause
which does not impose more or less stringent requirements than the general limita-
tion clause. This matter is discussed in paragraph 1.4 below.
________________________
19 See Neethling J “Constitutional compatibility of the common law of wrongful and malicious
deprivation of liberty as iniuriae” 2004 SALJ 711; Visser PJ “Enkele gedagtes oor die moontlike
invloed van fundamentele regte ten aansien van die fisies-psigiese integriteit op deliktuele
remedies” 1997 THRHR 495. See in respect of s 12(1)(c), S v Baloyi 2000 1 BCLR 86 (CC),
2000 2 SA 425 (CC) para 11. This is a duty of the courts when common law is at issue – see
Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC), 2001 4 SA 938 (CC); Pieterse
M “The right to be free from public or private violence after Carmichele” 2001 SALJ 27.
20 See the discussion of Ramraj VV “Freedom of the person and principles of criminal liability”
2002 SAJHR 225.
21 See in respect of the procedural aspects, Geuking v President of the RSA 2004 9 BCLR 895 (CC),
2003 3 SA 34 (CC) para 45.
22 In Zealand v Minister for Justice and Constitutional Development 2008 6 BCLR 601 (CC), 2008 4 SA
458 paras 30–32, the court incorrectly considered the fact that detainees in a maximum secu-
rity section of a prison enjoy less rights than those detained in a medium security section (eg in
respect of telephone calls, clothing and treatment in general) as the deprival of liberty found
in section 12(1)(a).
(b) The prohibition on detention without trial in section 12(1)(b) requires that the right
to bodily freedom may be limited by detention only if there has been a trial.23 Non-
compliance with this duty may be justified if there is compliance with the general
limitation clause. The provisions in section 35(1)(d) and (e) concerning detention
after arrest and concerning bail refers to the possibility that, in prescribed circum-
stances, people may be detained without trial and thus constitute a limitation of the
right in section 12(1)(b) by the provisions of another right in the Bill of Rights.24
(c) The prohibition on all forms of violence from either public or private sources in section
12(1)(c) protects one’s physical and psychological integrity against a particular form
of infringement, namely violence. The provision was included to focus attention on
the use of physical force by the state and by private persons in private relations, and
more in particular as far as private relations are concerned, domestic violence
against women and children. The provision clearly indicates that the right binds
private persons. However, this does not mean that the other aspects of section 12 are
not capable of being applied in private relations under section 8(2) of the Constitu-
tion. As in the case of all other rights, the state has a positive duty to protect this
right by creating appropriate crimes and delicts and by providing for their effective
25
enforcement.
(d) The prohibition on any form of torture and cruel, inhuman or degrading treatment or pun-
26
ishment in section 12(1)(d) and (e) accords with the provisions of most international
instruments.27 The infringement of this right always involves an infringement of
28
human dignity and often also the deprival of freedom. The different words in the
provision may be distinguished on a sliding scale starting with torture as the most
serious form of suffering, followed by cruel punishment and treatment, inhuman
punishment and treatment, and degrading punishment and treatment.29 To deter-
mine whether a punishment is cruel, inhuman or degrading, the relationship be-
tween all relevant factors must be considered, for example, the seriousness of the
crime, the seriousness or irrevocability of the punishment, and the possibility of
30
precluding arbitrariness and avoiding mistakes, and all other factors which play a
role in the determination of the culpability of the victim and the imposition of the
________________________
23 S 35 also contains guarantees in this respect. See on the application of the prohibition, Nel v Le
Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562 (CC); Coetzee v Government of the RSA; Matiso v
Commanding Officer, Port Elizabeth Prison 1995 10 BCLR 1382 (CC), 1995 4 SA 631 (CC); De
Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC).
24 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 7 BCLR 771 (CC), 1999 4 SA 623 (CC)
para 6.
25 S v Baloyi 2000 1 BCLR 86 (CC), 2000 2 SA 425 (CC) para 11 – validity sustained of s 3(5) of
the Prevention of Family Violence Act 133 of 1993; Law Society of South Africa v Minister of Trans-
port 2011 2 BCLR 150 (CC), 2011 (1) SA 400 (CC) paras 63 and 67.
26 See in respect of the imposition of the death penalty in terms of s 277(1)(a) of the Criminal
Procedure Act 51 of 1977, S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC), and in
respect of corporal punishment in terms of s 294 of the Criminal Procedure Act, S v Williams
1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC).
27 A 5 of the Universal Declaration of Human Rights, a 7 of the International Covenant on Civil
and Political Rights, a 3 of the European Convention, and a 5 of the African Charter on Hu-
man and Peoples’ Rights. The right is discussed fully in S v Makwanyane 1995 6 BCLR 665
(CC), 1995 3 SA 391 (CC) paras 26, 94, 196 and 276–280 and S v Williams 1995 7 BCLR 861
(CC), 1995 3 SA 632 (CC) paras 25–27.
29 S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) para 25.
30 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC) paras 54, 94, 196, 273, 351.
31
punishment. The right is not infringed when mere disproportionality exists be-
tween the punishment imposed and the punishment merited by the offence; gross
disproportionality must exist.32 The factors that are taken into account to determine
whether there has been gross disproportionality overlap with the factors in section
36(1)(a) to (e) which must be taken into account in applying the general limitation
clause.
How the factors are considered appears in S v Niemand in which the court invalidated
the imposition of indeterminate sentences for habitual criminals in terms of section
65(4)(b)(iv) of the Correctional Service Act 8 of 1959 read with section 286 of the
33
Criminal Procedure Act 51 of 1977. Without reference to the factors in section
36(1)(a) to (e), the court said that the purpose of declaring a person a habitual criminal
and of the indeterminate sentence is “to protect the community against those who
habitually commit crimes”; that the nature and effect of the punishment were such that
they may operate with the utmost severity; that the offences in question did not merit
such a sentence. Therefore, the relationship between the limitation and its purpose was
grossly disproportionate in that the class of habitual criminal concerned did not
pose such a threat to society that it warranted indefinite incarceration. Against this
background, “cruel, inhuman and degrading punishment” is a way of describing the
limitation of rights by punishment that does not comply with the general limitation
clause.
(e) The prohibition on subjection to medical or scientific experiments without informed
consent in section 12(2)(c). In order to determine whether the duty has not been
complied with, the meaning of the phrases “medical or scientific experiments” and
“informed consent” are important. Experimentation is undertaken in the course of
34
medical or scientific research. Informed consent requires that bearers of the right
must have the mental capacity to know that they will be taking part in a research
project and what the purpose of the project is. They must be given adequate time to
consider their participation and they must be informed that they can withdraw at
any time.35
In 2005, Van Wyk concluded that interventional, non-therapeutic research that carries
more than negligible or insignificant risk, will not be allowed in terms of the South
African Constitution or legislation, that children under the age of 18 are incompetent
to consent independently and that no-one can consent on their behalf to this kind of
36
research. Strode provides the following summary of the rules in section 71 of the Na-
tional Health Act concerning the participation of minors in research: “(a) Such re-
search can only be conducted if the consent of a parent or guardian is obtained. The
National Health Act does not allow consent by care-givers, even if they are acting as de
facto parents or guardians. (b) Minors who demonstrate ‘understanding’ will consent
alongside the person providing proxy consent, and not merely assent to the study.
________________________
32 S v Dodo 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC) paras 39–40; S v Niemand 2001 11 BCLR
1181 (CC), 2001 11 BCLR 1181 (CC) paras 24–26.
33 2001 11 BCLR 1181 (CC), 2002 1 SA 21 (CC) paras 11, 13–15, 24–26.
34 See Van Oosten F “The law and ethics of information and consent in medical research” 2000
THRHR 5; Van Wyk C “Guidelines on medical research ethics, medical ‘experimentation’ and
the Constitution” 2001 THRHR 3 and “Clinical trials, medical research and cloning in South
Africa” 2004 THRHR 1.
35 Van Wyk C “HIV preventive vaccine research on children: Is it possible in terms of South
African law?” 2005 THRHR 35 38; Burchell J “Non-therpeutic medical research on children”
1978 SALJ 190; Pope A “HIV preventative research with minors” 2007 SALJ 167.
36 Van Wyk C “HIV preventive vaccine research on children: Is it possible in terms of South
African law?” 2005 THRHR 50.
(c) Therapeutic research must be in the interests of the minor. (d) Ministerial consent
37
must be obtained for non-therapeutic research with minors.”
1.4 Justification for non-compliance with duties (limitation of the right)

The right is limited by any direct infringement of a person’s bodily or psychological
integrity, any direct or indirect compulsion to exercise the freedom of choice to
perform the protected conduct in a particular way, and by the non-observance of any
38
of the duties expressly defined in the formulation of the right.
It is sometimes stated that in terms of the maxim de minimis non curat lex, insignifi-
cant infringements should not be considered to be limitations for the purposes of
applying limitation clauses. However, an “insignificant infringement” will probably
be an infringement which would comply with the limitation clauses because the
nature and extent is not extensive. It would be better to determine the matter by the
39
application of the principles relating to the limitation of rights.
Since the right in section 12 has a strong human dignity component, the general
40
limitation clause must be applied strictly.
However, since the nature and extent of limitations of bodily and psychological
integrity may take many different forms, the general limitation clause may, in certain
instances, be applied less strictly – for example, in the case of restriction of freedom
of bodily movement during lecture hours. In the case of the prohibition of torture,
the limitation clause will be applied so strictly that it seems most unlikely that the
protection or promotion of any social interest will be considered important enough
to justify non-compliance with the duty.41
Section 12(1)(a) contains a special limitation clause: deprivation of freedom is
permissible if it is not arbitrary and if it is for a just cause.
As is the case in respect of the factual limitation of all rights, the Constitutional
Court has held that when there is an interference with physical liberty the perpetra-
tors bear “the burden to justify the deprivation of liberty, whatever form it may have
taken”, that is, to convince the court that the deprival of property is not arbitrary
42
and for a just cause.
________________________
37 Strode A “A critical review of the regulation of research involving children in South Africa:
from self-regulation to hyper-regulation” 2015 TSAR 344.
38 In Coetzee v Government of the RSA 1995 10 BCLR 1382 (CC), 1995 4 SA 631 (CC) para 48, the
court referred to the following examples: detention of illegal immigrants; segregation of per-
sons with highly infectious diseases; custodial orders in terms of mental health legislation; and
arrest in order to establish or confirm jurisdiction of a person seeking to flee the country so as
to avoid civil liability.
39 Beattie D “Human Rights and constitutional review in Canada” 1992 Human Rights Law Journal
185 189 explains: “Putting an interest or activity beyond the reach of the Charter on the
grounds it is too insignificant or trivial to merit being reviewed against the full analytical
framework [of the limitation of rights] is just another way of saying that, when the challenger’s
interest is weighed against the public interest promoted by the law and the limited amount of
time and resources available to the Court, it is not substantial enough to warrant such close at-
tention by the Court.”
40 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 SA 785 (CC) paras 126, 138.
41 According to a 2(2) and (3) of the UNO Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (GA Res 36.46 Doc A/39/51), there are no circumstances in
which the command of an officer of public authority may serve as a defence for torture.
42 Zealand v Minister for Justice and Constitutional Development 2008 6 BCLR 601 (CC), 2008 4 SA 458
(CC) paras 24, 25.
As has been indicated in paragraph 1.2 above, the Constitutional Court, following
American jurisprudence on American due-process constitutional provisions, holds
that the definition of the right in section 12(1)(a) has substantive and procedural
aspects and that the right may be limited for sound reasons (the substantive aspect)
and only in accordance with proper procedures (the procedural aspect). Justifica-
tion is dealt with separately, but usually very briefly, because the elements to be
considered had already been considered when the court considered sound reasons
and proper procedure as part of its definition of the right.43
In principle, the requirements that the deprivation must be non-arbitrary and for
a just cause overlap completely with the provisions of section 36(1). They need not
be more stringent or less stringent than the requirements in the general limitation
clause. However, the courts ignore this fact and hold that the right has only been
infringed factually when a deprivation has been “arbitrary” and “without a just
cause” and that the general limitation clause has to be applied during a subsequent
stage of the enquiry.44 The courts fail to recognise the overlap between the elements
of non-arbitrariness and the general limitation clause. Arbitrariness in section
12(1)(a) in the form of the absence of a rational relationship deals with the rela-
tionship between a limitation its purpose in section 36(1)(d). And the requirement
of a just cause is the same as a legitimate purpose as referred to in section 36(1)(b).
Although the courts use a different approach in applying the right, the courts’
reasoning can usually quite easily be rearranged within the framework of the general
limitation clause.45 However, courts do not always take all the factors in section 36(1)
into account.46 In Thebus v S, the court took into account the existence of a rational
relationship between the limitation, its purpose and the importance of that purpose;
but, because the court considered “non-arbitrariness” an element of the definition
of the crime and not of “limitation analysis”, it did not consider less restrictive ways
of limiting the right.47
It is wrong to apply only the rational relationship test to the limitation of the right.
The rational relationship test is the weakest of all tests for the limitation of rights
and cannot possibly be the only test to apply to all instances of deprivation of per-
sonal freedom protected in section 12.
Courts are inclined to view the constitutionality of all substantive criminal norms
within the framework of the right not to be deprived of freedom “arbitrarily and with-
48
out just cause”, mainly because imprisonment restricts bodily freedom. This is not a
sound approach.
________________________
43 See Lawyers for Human Rights v Minister of Home Affairs 2017 10 BCLR 1242 (CC), 2017 5 SA 480
(CC) paras 32, 59.
44 Bernstein v Bester NNO 1996 4 BCLR 449 (CC), 1996 (2) SA 751 (CC) para 145; De Lange v Smuts
NO 1998 7 BCLR 779 (CC), 1998 SA 785 (CC) para 23; Malachi v Cape Dance Academy
International (Pty) Ltd 2010 11 BCLR 1116 (CC), 2010 6 SA 1 (CC) para 15. See Rautenbach IM
“Die Suid-Afrikaanse reg op persoonlike vryheid en sekerheid en die prosedurele en substan-
tiewe aspekte van die Amerikaanse due process of law-bepaling” 2011 TSAR 148–158.
45 See in respect of the Malachi case, Rautenbach IM “Overview of Constitutional Court decisions
on the Bill of Rights” 2011 TSAR 348–349.
46 See S v Dodo 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC) para 37; S v Boesak 2001 1 BCLR 36
(CC), 2001 1 SA 912 (CC) para 38; Zealand v Minister for Justice and Constitutional Development
supra paras 34 and 43; Rautenbach IM “The limitation of rights in terms of provisions of the
Bill of Rights other than the general limitation clause; a few examples” 2001 TSAR 630–633.
48 S v Dodo 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC) para 37; S v Coetzee 1997 4 BCLR 437
(CC), 1997 3 SA 527 (CC); De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 SA 785 (CC);
Thebus v S 2003 10 BCLR 1100 (CC), 2003 6 SA 505 (CC) para 39. In S v Boesak 2001 5 BCLR
423 (CC), 2001 3 SA 382 (CC) para 37, the court referred to the deprivation of freedom after
an allegedly unfair trial and not to substantive criminal law.
Firstly, to the extent that imprisonment pursuant to a person’s conviction of a crime

can be considered deprivation of freedom, section 12 cannot apply to the limitation of
other rights by other forms of punishment – for instance, the right to property by fines
and the right to choose a trade, occupation or profession by the cancellation of regis-
tration for a certain profession. In this respect, the courts are probably again confusing
the broad term “freedom” in American due-process jurisprudence with the South Afri-
49
can right to “bodily free movement in section 12(1). Secondly, although the substan-
tive definitions of many crimes limit free bodily movement, the free exercise of all
other rights may be, and often is, limited by those very definitions – for example, the
rights to privacy, property, freedom of expression and association.
1.5 Particular matters

The following are examples of the application of the general limitation clause to
particular limitations of the right.
(a) Cruel, inhuman and degrading treatment and punishment
The various purposes of punishment cannot justify the death penalty – there is no em-
pirical evidence that the death penalty could serve such purposes more effectively than
50
the less severe alternative of life imprisonment.
Deterrence cannot justify the nature and extent of the infringement of the rights af-
51
fected by corporal punishment for juveniles.
The obligatory imposition of life imprisonment in terms of section 51(1) of the Crimi-
nal Law Amendment Act 105 of 1997 is not inconsistent with section 12(1)(e), because
the court need not impose such sentence if there are “substantial and compelling cir-
52
cumstances” for it not to do so.
Indeterminate sentences for habitual criminals (as provided for in section 65(4)(b)(iv)
of the Correctional Service Act 8 of 1959 read with section 286 of the Criminal Proce-
dure Act 51 of 1977) were invalidated – although life imprisonment may be propor-
tional to certain heinous crimes, it constitutes a gross disproportionality in the case of
53
habitual criminals who are neither violent nor a danger to society.
(b) Deprivations of freedom as punishment
Imposing a sentence of imprisonment on an accused person implicates the right to
freedom and security of the person in section 12(1) and if the sentencing process is
unfair or suffers from an irregularity, the constitutional right to a fair trial in section
35(3) is also infringed. The imposition of imprisonment for non-compliance with a
summons in terms of sections 417 and 418 of the Companies Act 61 of 1973 is neces-
sary for the enforcement of the legislation. Normal procedural guarantees apply in
54
such cases.
The imposition of a minimum sentence of imprisonment on a no-fault basis in terms
of section 1(1)(b) of the Criminal Procedure Act 51 of 1977 does not amount to an
arbitrary deprivation without a just cause in terms of section 12(1)(a). The Constitu-
tional Court held that although fault is usually regarded as an essential element of
________________________
49 See para 1.2 above.

50 S v Makwanyane 1995 6 BCLR 665 (CC), 1995 3 SA 391 (CC).
51 S v Williams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC).
52 S v Dodo 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC).
53 S v Niemand 2001 11 BCLR 1181 (CC); 2002 1 SA 21 (CC).
54 Nabolisa v S 2013 8 BCLR 964 (CC) para 55. In this case an increase in sentences of imprison-
ment imposed by the Supreme court of Appeal as requested by the state only in its written ar-
guments before the court and without having obtained leave to appeal against sentence or
cross-appealed the sentences imposed in the court a quo constituted an irregularity which vio-
lated the right to a fair trial.
criminal liability for the justifiability of the limitation of rights brought about by the
criminal liability, section 12 does not require it expressly and faultless liability could
under certain circumstances be a rational means to achieve a constitutionally permis-
55
sible purpose, in this case the prevention of very serious crimes.
The imposition of imprisonment for non-compliance with a summons in terms of sec-
tions 417 and 418 of the Companies Act 61 of 1973 is necessary for the enforcement of
56
the legislation. Normal procedural guarantees apply in such cases.
The summary imposition of imprisonment in terms of section 189(1) of the Criminal
Procedure Act 51 of 1977 when a person fails to provide certain information concern-
ing the commission of a crime, is not unconstitutional, because the provision applies
only when the person concerned refuses without any good reason to provide such in-
57
formation.
The summary procedure and committal for contempt of court ex facie curiae (for non-
compliance with a court order) is reasonable and justifiable in view of the purpose of
protecting the power of and regard for the courts, the administration of justice and
orderly judicial functioning. The purpose of giving effect to a court order as soon as
possible cannot be achieved in a way which is less severe, such as, for example, the in-
58
stitution of criminal proceedings.
The criminal standard of proof (beyond reasonable doubt) applies to imprisonment
for contempt of court for non-compliance with a civil order both when the state prose-
59
cutes and when a civil applicant seeks an order for committal to prison. “[O]nce the
applicant has proved the order, service or notice, and non-compliance, the respondent
bears an evidential burden in relation to wilfulness and mala fides: Should the respon-
dent fail to advance evidence that establishes a reasonable doubt as to whether non-
compliance was wilful and mala fide, contempt will have been established beyond rea-
60
sonable doubt.”
The imprisonment of witnesses in terms of section 66(3) of the Insolvency Act 24 of
1936 is invalid to the extent that the presiding officer who issues the warrant of arrest
61
need not be a magistrate.
The detention of a person who is awaiting trial, in a maximum security section of a
prison, constitutes an arbitrary deprival of freedom without just cause that cannot be
62
justified in terms of the general limitation clause.
(c) The limitation of personal freedom by summons
The limitation of personal freedom when persons are summoned to attend a trial or
inquiry is necessary for the proper functioning of the courts and other institutions that
63
conduct inquiries.
(d) Civil imprisonment and arrests tanquam suspectus de fuga
The detention of debtors without having committed any crime for which they have
been charged or have been on trial in terms of sections 65A to 65M of the Magistrates’
________________________
55 Minister of Justice v Masingili 2014 1 BCLR 101 (CC) para 52.

56 Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC).
58 Uncedo Taxi Service Association v Maninjwa 1998 6 BCLR 683 (EC) 694–695.
59 Fakie NO v CCII Systems (Pty) Ltd 2006 4 SA 326 (SCA) paras 22–28. The court stated in para 30:
“No less than punitive committal, purely coercive committal uses imprisonment, or its threat;
and whenever loss of liberty for disobedience of an order of court is threatened it seems to me
necessary and proper that the infraction should be proved conclusively.”
60 Fakie NO v CCII Systems (Pty) Ltd Nel v Le Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562 (CC)
para 42.
61 De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 SA 785 (CC).
62 Zealand v Minister for Justice and Constitutional Development 2008 6 BCLR 601 (CC), 2008 4 SA 458
(CC); see 2009 TSAR 331–334.
63 Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) para 54.
Courts Act 32 of 1944 was invalidated – the relationship between the limitation and
the purpose of the limitation was overbroad in that debtors who could not pay were
64
also affected. Furthermore, section 30(1) of the Magistrates’ Courts Act 32 of 1944,
which empowered a magistrate to issue an order for the arrest and detention of a
debtor in circumstances where a creditor reasonably believed that the debtor is about
to flee the country in order to avoid paying the debt owed to the creditor, was invali-
dated. The Constitutional Court held that the purpose of the limitation is usually con-
sidered to be to establish jurisdiction; this is a constitutionally permissible purpose, but
this purpose is not the purpose that had to be considered in this case. The prime pur-
pose was to secure the satisfaction of the judgment debt, which is likewise a permissi-
ble purpose. However, whereas the satisfaction of the judgment debt can be secured
by the attachment of property, the arrest of a debtor cannot do so. As far as the rela-
tion between the limitation and the purpose is concerned, the limitation was not ca-
pable of promoting the purpose. The extent to which the limitation could contribute
towards debt collection was in any case overbroad; less intrusive options for pursuing
65
and achieving the same purpose were available.
(e) Replacement of death sentences with appropriate other sentences
The Constitutional Court confirmed the constitutionality of section 1(1) to (5) of the
Criminal Law Amendment Act 105 of 1997 which provides a mechanism for replacing
death sentences imposed before the invalidation of the death sentence and confirmed
66
by the Supreme Court of Appeal, with appropriate alternative sentences.
(f) Arrest and detention of illegal immigrants and asylum seekers
The Constitutional Court invalidated provisions of section 34(1)(b) and (d) of the
Immigration Act 13 of 2002. Section 34(1) of the Act authorised an immigration offi-
cer to arrest and detain an illegal foreigners pending their deportation. Section 34(1)
did not contain any guidelines on how the administrative officer’s very wide discretion
to arrest and detain had to be exercised and it did not require an automatic judicial
review of the detention before the expiry of 30 calendar days. The court held that a
limitation of rights like physical freedom cannot be justified on the basis that it is esti-
67
mated that there will be an increase in costs. The court emphasised the important
68
ruling in Dawood, Shalabi, Thomas v Minister of Home Affairs that a legislature must pro-
vide guidance in its authorising legislation as to when limitation of rights will be justi-
fiable and that it is not ordinarily sufficient for a legislature merely to say that
discretionary powers to limit right must be exercised in a manner consistent with the
Constitution. Lack of capacity and administrative convenience cannot serve as justifica-
tion for the limitation of the right to personal freedom and security of illegal foreign
asylum seekers by policies and practices at a refugee reception office to process only 20
69
asylum-seeker permits per day.
(g) Compulsory incarceration and institutionalisation without guilt
The Constitutional Court invalidated the imprisonment and, in respect of children,
also their institutionalisation, under section 77(6)(a)(i) and (ii) of the Criminal Pro-
cedure Act 51 of 1977 which provided for compulsory incarceration or institutionalisa-
tion when a court finds that an accused person suspected of committing a serious
offence (as described in the provision) is not capable of understanding the
________________________
64 Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth 1995 10 BCLR 1382
(CC), 1995 4 SA 631 (CC).
65 Malachi v Cape Dance Academy International Pty Ltd 2010 11 BCLR 1116 (CC), 2010 (6) SA 1
(CC) paras 32, 34, 37–39.
66 Sibiya v DPP: Johannesburg High Court 2005 8 BCLR 812 (CC), 2005 5 SA 315 (CC).
67 Lawyers for Human Rights v Minister of Home Affairs 2017 10 BCLR 1242 (CC), 2017 5 SA 480
(CC) paras 35–40, 46–58, 60–61.
68 Dawood, Shalabi, Thomas v Minister of Home Affairs 2000 8 BCLR 837 (CC), 2000 3 SA 936 (CC)
paras 54, 55.
69 Kiliko v Minister of Home Affairs 2007 4 BCLR 416 (C), 2006 4 SA 114 (C) paras 29, 30.
proceedings to make a proper defence. Pending a decision of a judge in chambers,
this was deprival of freedom without a determination of the guilt by a court of law.
Both the imprisonment and hospitalisation of children were invalid, because a court
had no discretion to deal appropriately with the children, more particularly to decide
that the deprival of freedom is a measure of last resort as required by section 28(3) of
the Constitution. The invalidation was suspended for 24 months to allow parliament to
rectify the defects. Section 77(6)(a)(ii) of the Act which provided that when it has
been established that a minor offence was committed or that no offence has been
committed, “the court shall direct that the accused … be admitted to and detained in
an institution …” was also invalidated and replaced by a provision in which the court
70
read in that the accused may also be released conditionally or unconditionally.
(h) The protection of the right by means of common-law delictual liability
In Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd, the Supreme Court of Appeal
held that it is unnecessary to develop strict liability in order to provide better protec-
tion of the constitutional right to bodily integrity against defectively manufactured
products, because the existing common-law action is adequate “both as it is and given
the opportunity for incremental development of the approach to res ipsa loquitur and
71
to the incidence of the onus”.
72
In K v Minister of Safety and Security, the Constitutional Court held that the test for vi-
73
carious liability in Minister of Police v Rabie, namely whether the employee subjectively
intended to commit the wrongful act solely for his or her benefit and, even if this was
not the case, whether the employee’s deviant conduct is sufficiently connected to the
purposes and the business of the employer, was consistent with the Constitution. The
expanding of delictual liability through the rules of vicarious liability limits the rights
of employers to a greater extent than when liability in terms of “ordinary rules for
delictual liability” is determined. The court described the purposes of this limitation of
the rights of employers as to provide more efficient remedies to victims for harm
caused by employees and the encouragement of employers to take steps to prevent
their employees from harming third parties. The judgment does not reveal which
74
other factors in regard to the limitation of rights were taken into account.
In Law Society v Minister of Transport the Constitutional Court held that victims of motor
accidents were entitled, in terms of section 12 to invoke the common law delictual
remedy to recover damages against wrongdoers. The court held that the right in sec-
tion 12(1)(c) is factually limited by the exclusion of the remedy in section 21 of the
Road Accident Fund Act 56 of 1996 to claim compensation not compensable under
75
the Act. In applying section 36 to this limitation, the court noted that the right was
limited in terms of a law of general application, namely the Road Accident Fund Act,
that the right to security of the person is of great importance, that the limitation
served the legitimate purpose to create an inclusive, transparent and predictable com-
pensation system and that there were no less restrictive measures to achieve the
76
purpose. However, the court neglected to consider the extent of the limitation.
The court merely applied a weak rational relationship test to the limitation of the
right. Such a weak test may only be applied to an important right such as the right
to personal freedom and integrity in the case of very slight impairments of the right
________________________
70 De Vos v Minister of Justice and Constitutional Development 2015 9 BCLR 1026 (CC) paras 20, 22,
44–46, 69.
71 Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 7 BCLR 710 (SCA).
72 K v Minister of Safety and Security 2005 9 BCLR 835 (CC), 2005 6 SA 419 (CC).
73 Minister of Police v Rabie 1986 1 SA 117 (A).
74 The phrase “a sufficient connection between the deviant behaviour and the business of the
employer” is probably not suitable to serve as an instrument for the application of all the con-
stitutional norms that must be considered, unlike more general terms such as “reasonable” or
“fair” which are used to describe objective standards for negligence or unlawfulness.
75 Law Society v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC) para 65.
76 Law Society v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC) para 80.
and in this case the court did not investigate the seriousness or otherwise of the
77
impairment.
After referring to the cautious remarks in Rail Commuters Action Group v Transnet Ltd t/a
Metrorail, that “private law damage claims are not always the most appropriate method
78
to enforce constitutional rights”, the Constitutional Court refused to express itself in
Zealand v Minister for Justice and Constitutional Development on what it called “the com-
plex relationship between public duties and private law remedies”. The court never-
theless held that the detention of a person who awaits trial in a maximum security
section of a prison not only constitutes a violation of the right not to be deprived arbi-
trarily and without just cause in section 12(1)(a), but also constitutes wrongfulness for
79
the purposes of the law of delict. In Mashongwa v Prasa, the Constitutional Court held
that the public law duty of the Passenger Rail Services to provide safety to rail com-
muters has “mutated to a private law duty to prevent harm” and that the “norms and
values derived from the Constitution demand that a negligent breach of those duties,
even by way of omission, should absent suitable a suitable non-judicial remedy, attract
80
liability to compensate injured persons in damages”.
In Claassen v Minister of Justice and Constitutional Development the Western Cape High
Court held that judicial immunity against delictual liability based on a negligent de-
prival of personal freedom by the judiciary could be justified for the purposes of secur-
ing judicial independence. The court did not apply the general limitation clause in
81
reaching this conclusion.
(i) The protection of public health
The compulsory isolation of patients with infectious diseases amounts to a deprivation
of freedom which is not arbitrary and without just cause and is thereby justifiable in
terms of the general limitation clause in section 36. The wording of section 7 of the
National Health Act 61 of 2003 was wide enough to include the involuntary isolation
of such patients and thus serves as the “law of general application” in terms of which
82
the limitations are effected for the purposes of section 36.
(j) Commencement of jail sentences for persons on bail after unsuccessful application for leave to
appeal against the sentences
Persons out on bail pending appeal or application for leave to appeal have a duty as
part of their bail conditions to ascertain the outcome of the appeal processes and to
present themselves to serve their jail sentences if the appeal processes fail. The Consti-
tutional Court rejected the contention of an applicant, who was legally represented
throughout all the processes, that for six years he was unaware of the unsuccessful out-
come of his application for leave to appeal and that his right to personal freedom had
83
thus been violated.
(k) Consideration for placement under community corrections or parole
A refusal by the state to consider an offender who is eligible for consideration for
placement either under community corrections or under parole constitutes a limita-
tion of the right to personal freedom and must be reasonable and justifiable under
84
section 36 of the Constitution.
________________________
77 For a discussion on this aspect of the Law Society case, see 2011 TSAR 350–352.
78 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 4 BCLR (CC), 2005 2 SA 359 paras
80 and 81.
79 Zealand v Minister for Justice and Constitutional Development 2008 6 BCLR 601 (CC), 2008 (4) SA
458 (CC) para 52.
80 Mashongwa v PRASA 2016 2 BCLR 204 (CC) paras 29, 26.
81 Claassen v Minister of Justice and Constitutional Development 2010 6 SA (WCC) para 32.
82 Minister of Health v Goliath 2009 2 SA 248 (K) paras 19, 21, 25, 26.
83 Mthembu v State 2010 7 BCLR 636 (CC), 2010 1 SACR 619 (CC) para 3.
84 Van Vuren v Minister of Correctional Services 2010 12 BCLR 1233 (CC) para 65.
2 Slavery, servitude and forced labour

2.1 Section 13 373
2.2 A prohibition of certain practices that impair the conduct and interests
protected by other rights 373
2.1 Section 13
13 No one may be subjected to slavery, servitude or forced labour.
2.2 A prohibition of certain practices that impair the conduct and interests
protected by other rights
The conduct and interests protected by this right overlap with those covered by the
right to freedom and security of the person and the right to occupational freedom.
The right in section 13 therefore imposes a duty not to act in certain prescribed ways
which would violate the conduct and interests protected by other rights. Apart from
any other rights that may be violated by slavery, slavery is considered to be a most
extreme form of the violation of human dignity because the victims are treated as
property. The right prohibits the forms of the violation of the right to human dig-
nity, personal freedom and security and the right to occupational freedom. Matters
relevant to forced labour are military service, prison labour and the performance of
civil service in, for example, times of emergency.
3 Movement
3.1 Section 21 373
3.2 Protected aspects of free movement 373
3.1 Section 21
21(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain and to reside anywhere in the Re-
public.
(4) Every citizen has the right to a passport.
3.2 Protected aspects of free movement

The right protects only natural persons.
The general right to freedom of movement in section 21(1) protects bodily move-
ment and guarantees free decision-making regarding how, when and where persons
85
move from one place to another and how long they sojourn anywhere. Subsections
(2), (3) and (4) of section 21 protect specific aspects of the general right. They are
all covered by the general right in section 21(1), but were probably formulated in
order to facilitate distinctions made between aspects of the protection of freedom of
movement that apply to citizens only and those that apply to everybody.
The right to freedom in section 12 also protects bodily movement. The direct in-
fringement of bodily movement in the enforcement of legal rules – for example, by
means of arrest, detention and imprisonment – will probably be dealt with mainly
________________________
85 Matatiele Municipality v President of the RSA 2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC) para 80.
within the framework of sections 12 and 35. Section 21 may then be applied to the
specific rights in section 21(2), (3) and (4), and to instances in which legal rules
directly limit decisions regarding bodily movement and settlement, such as require-
ments concerning the taking up of residence in a particular town or province for the
purpose of accessing certain benefits and facilities provided by the authorities con-
86
cerned.
Section 21(2) protects the right of everyone to leave the Republic. Since it in-
cludes the right to refuse to leave the country, those bound by the right may not
compel those protected by the right to leave. The right applies to all natural per-
sons. All aspects of the extradition of persons to other states in terms of the Extradi-
tion Act 67 of 1962 have to comply with the general limitation clause. The purpose
of extradition as a limitation of the right in section 21(1) is to “counter the ever-
growing frequency with which criminals take advantage of modern technology, both
87
to perpetrate crime and to evade arrest by fleeing to other lands”.
Section 21(3) protects the right of every citizen to enter, remain and reside any-
where in the Republic. The right applies only to citizens, and restrictions of the
protected conduct and interests of non-citizens in this regard need not comply with
the general limitation clause. Because foreigners are the bearers of the general right
to freedom of movement in section 21(1), but not of the rights in section 21(3), the
meaning of “reside” is important. With reference to the requirements in respect of
domicile in South African law, it can be described as real settlement with the inten-
tion of remaining.
Section 21(4) protects every citizen’s right to a passport. The right does not apply
to non-citizens. South African passports are issued in terms of the South African
Passports and Travel Documents Act 4 of 1994.
________________________
86 In Zimbabwe it was held in Elliot v Commissioner of Police 1997 5 BCLR 670 (ZS), 1998 1 SA 21
(ZS) that the obligatory carrying of identity documents and the enforcement of this obligation
was an unconstitutional infringement of the right to freedom of movement.
87 Geuking v President of the RSA 2004 9 BCLR 895 (CC), 2003 3 SA 34 (CC) para 2.
Chapter 22
Privacy
Religion, belief and opinion
1 Privacy 375
2 Religion, belief and opinion 383
1 Privacy
1.1 Section 14 375
right) 381
1.1 Section 14
14 Everyone has the right to privacy, which includes the right not to have –
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.

Section 14 describes the right to privacy by referring to both the protected conduct
and interests (which we discuss in this paragraph) and duties of those who are
bound by the right in section 14(a) to (d) (which we discuss in paragraph 1.3
below).
Although the right to privacy is often described as the right “to live your life as it
pleases you”,1 this description applies to all other rights. “Self-determination”,
“autonomy” and freedom to decide how one performs and protects the constitu-
tionally protected actions and interests are features of all rights. All rights protect
a sphere of decision-making and action with which outsiders may only interfere
when such interference complies with the requirements for the limitation of rights.
The right to privacy provides protection against certain kinds of interference
with the exercise of other rights; it does not provide protection against all kinds of
interference.
________________________
1 Eg, in NM v Smith 2007 7 BCLR 751 (CC), 2007 5 SA 250 (CC) para 32; Minister of Police v
Kunjana 2016 9 BCLR 1187 (CC), 2016 2 SACR 473 (CC) para 47 n 32. For an overview of na-
tional and international definitions of privacy, see Schiedermaier S Der Schutz des Privaten als
internationales Grundrecht (2012) 5–18.
375
The right to privacy protects the ability to control access by others to what we are
2
doing and the ability to control the obtaining, processing, possession and
3
publication of information about us and our activities.
Protection under the right to privacy has two distinct aspects: protection against
intrusion and protection in respect of information. The last aspect is generally
known as informational privacy.
Assuming that most human activities are protected by other rights (for example,
in respect of bodily movement and pshychological integrity, association, communi-
cation, beliefs and economic activites), the right to privacy protects only a specific
4
aspect of our exercise of other rights. It only provides protection against intrusion
into the sphere or space where we exercise the other rights, and against the collec-
tion, use and disclosure of personal information in respect of the exercise of other
5
rights. When a bill of rights does not guarantee a separate right to privacy (like the
Constitutions of the United States and Germany), other rights are interpreted to
cover control over access to their exercise and the obtaining, dissemination and use
of information on their exercise.
There are clear distinctions between the protective ambit of the right to privacy and
the protective ambit of other rights.
The right to privacy does not protect my actions to associate with others (protected
by the right to freedom of association in section 18), or my actions in respect of what
I do with my body (protected by the right to security in and control over my body in
section 12(2)(b)), or doing business in my office or on my computer (protected by
the right to freedom trade, occupation or profession in section 22), or cultivating
my land (protected by the right property in section 25) and using what I cultivate to
feed, heal and entertain myself (protected by the right to physical and psychological
integrity in section 12). The right to privacy is only factually limited when somebody
________________________
2 In Prinsloo v RCP Media Ltd t/a Rapport 2003 4 SA 456 (T) 468 reference was made to the
fixation of information which is described by Neethling J “Constitutional compatibility of the
common law of wrongful and malicious deprivation of liberty as iniuriae” 2004 SALJ 520 as the
embodiment of private facts by, eg, photography, photocopying and tape recordings.
3 In National Media Ltd v Jooste 1996 3 SA 262 (SCA) 271, privacy is described as “the competence
to determine the destiny of private facts”.
4 This point is not taken into account in the criticism of Neethling J “The concept of privacy in
South African law” 2005 SALJ 21 that this link between the right to privacy and other rights is
too broad and confusing. Neethling draws in respect of the possession, purchase and cultiva-
tion of cannabis for personal consumption a distinction between general legal subjectivity (the
freedom to be active in the law) which he suggests could be accommodated under the right to
human dignity, on the one hand, and competences under the right to informational privacy
(“Die reg op privaatheid en outonomie” 2018 LitNet Akademies (Regte) Jaargang 15(2)). In the
text above we explain that the possession, purchase and cultivation and use of cannabis are
covered by other rights rather than a general legal subjectivity based on the right to human
dignity.
5 The Bill of Rights contains other examples of rights that protect a specific aspect of other
rights, for example, the rights to freedom of association and assembly protect association and
assembly with others for, amongst other purposes, to jointly protect or promote any of the
other rights (see ch 23 paras 2.2 and 3.2). Neither is it uncommon that a right protects action
and interests of other rights against specific forms of encroachment: the right to just adminis-
trative action protects other rights against administrative executive acts, the criminal proce-
dural rights protect other rights when the commission of crimes are investigated, prosecuted
and punished, social rights protect other rights against interference with, or failure by the state
to provide adequate housing, food, water, health care, social services, etc.
Chapter 22 Privacy – Religion, belief and opinion 377
intrudes into the space where I perform the protected actions, or obtain, process or
keep information on what I am doing, or inform others about what I am doing.
The fact that the right to privacy and other rights are often limited by the same
action must, however, also be recognised
Although the protective ambit of the right to privacy and those of other rights can
and should be distinguished, there is nevertheless a considerable amount of overlap
between infringements of the right to privacy and infringements of other rights.6 On
the one hand outsiders’ access to and familiarity with the way in which rights are
exercised or the disclosure of such knowledge (the infringement of privacy) may
inhibit the free exercising of the other rights and, thus, effectively limit them. On
the other hand, the enforcement of a crime, the substantive definition of which
7
limits a right, inevitably requires the state to collect information on how the right
has been exercised and to disclose such information to the courts, that is, the right
8
to privacy is limited. Despite the overlap, care must be taken to distinguish the
protective ambit of the right to privacy from the protective ambit of other rights in
order to prevent the ordinary and lawful exercise of the other rights from being
swept unnecessarily under the carpet of privacy, and in doing so, creating
unnecessarily the impression that the other rights protect secretive and extra-
9
ordinary activities.
The distinction between the right to privacy and other rights is apparent from
the facts dealt with in various judgments of Constitutional Court, although the court
itself has often not recognised the distinction in these judgements.
10
(a) In National Coalition for Gay and Lesbian Equality v Minister of Justice, the court held
that “[p]rivacy recognizes that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships without interfer-
ence from the outside community.” In this instance, the court gave content to the
right to privacy by using words which, in fact, describe the very core of what is being
protected by the right to freedom of association, namely actions to establish and sus-
tain relationships with others. Certain of the actions involved, may be exercised in
private, but others not. The primary right concerned is the right to freedom of asso-
ciation and not the right to privacy. In the same case, the court explained that the
way in which sexuality is expressed is at the core of the inner sanctum of privacy. It is,
________________________
6 See D v K 1997 2 BCLR 209 (N) 218–219; Case v Minister of Safety and Security; Curtis v Minister of
Safety and Security 1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC) para 112; Nell v Nell 1990 3 SA 889
(T); S v Orie 2004 3 SA 584 (C) 591.
7 Eg, a prohibition on the possession of pornographic material which limits the right to receive
or impart information (s 16(1)(b)), a prohibition on the termination of pregnancy which lim-
its the right to control over one’s body (s 12(2)(b)) and a prohibition on the use of means to
prevent pregnancy which limits the right to make decisions concerning reproduction
(s 12(2)(b)).
8 In the USA, all the examples in the previous footnote are treated as invasions of privacy (Roe v
Wade (1973) 410 US 113; Griswold v Connecticut (1965) 381 US 479 and Stanley v Georgia (1969)
394 US 557). Unlike our own Bill of Rights, the USA Bill of Rights does not refer expressly to
the right to make decisions on reproduction and the right to control over one’s body. More-
over, the right to privacy itself is inferred from other provisions – Tribe American Constitutional
Law (1988) 1308–1309.
9 For an analysis of the distinction between the right to privacy and the right to physical and
psychological integrity, see Neethling J “Handhawing en miskenning deur die regspraak van
die onderskeid tussen die regte op privaatheid en die liggaam (inbegrepe fisies-sinlike ge-
voelens) as selfstandige persoonlikheidsregte” 2005 THRHR 344–349.
10 National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC), 1999
1 SA 6 (CC) para 32. Emphasis added. See also paras 116–117.
of course, not the activities in regard to which sexuality are expressed that is pro-
tected by the right to privacy, those activities are protected by the right to bodily and
psychological integrity in section 12 and the right to freedom of association in sec-
tion 18; privacy provides protection against intrusion into the space where the rights
are exercised and against publication of information about the activities.
(b) Another example is that the primary right affected by the ban on the possession of
pornography in section 2(1) of the Indecent or Obscene Photographic Matter Act 37
of 1967, which was invalidated in Case v Minister of Safety and Security; Curtis v Minister
11
of Safety and Security, is the right freely to receive information in section 16(1)(b) of
the Constitution, which is, of course, subject to limitations that comply with limita-
tion clauses. In this case, it is only when activities protected by the right are intruded
upon and when information concerning such activities is collected, kept or disclosed
that the protective ambit of the right to privacy is also infringed. It is also in this
sense that section 14(d) of the Constitution protects the “privacy” of communica-
tions. In principle, this aspect of privacy does not protect the freedom to receive and
impart information as such (this is done by the right to freedom of expression in sec-
tion 16), albeit that, as indicated above, interference constituting an invasion of pri-
vacy may, in many instances, also inhibit the freedom to receive or impart the
information.
(c) In NM v Smith, the Constitutional Court emphasised that privacy concerned personal
matters and the court described personal matters as “those matters the disclosure of
which will cause mental distress and injury to anyone possessed of ordinary feelings
and intelligence in the same circumstances and in which there is a will to keep them
12
private”. This description of private matters highlights the overlap between the
right to privacy and the right to psychological integrity in section 12 of the Bill of
Rights: the effect of publishing information may have negative psychological conse-
quences.
A person protected by the right to privacy may decide not to exercise the right or to
waive the right.
Like in the case of all other rights, one may expressly or by implication decide
unilaterally not to exercise the right, that is, in the case of the right to privacy, to
allow others to be present when one exercises those rights or to allow the collection,
possession or publication of information about it without taking any action to
enforce the right. This is the so-called negative way of exercising the right.13 It is also
possible to enter into a binding agreement with others not to exercise the control
protected by the right. This amounts to a contractual waiver of the right and must
14
comply with certain requirements to be valid. By recognising these features of the
exercise of rights, the problems relating to the construction followed in our private
and public law of subjective privacy expectation which may, objectively viewed, be
illegitimate expectations can be avoided.
The conventional private and public law test to determine whether privacy is
affected, is to ask (a) whether there is a subjective expectancy of privacy which (b) is
a legitimate expectation. A legitimate expectation is an expectation which the society
considers to be reasonable.
________________________
11 1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC).

12 NM v Smith 2007 7 BCLR 751 (CC), 2007 5 SA 250 (CC) para 34. Except for the phrase “in
respect of which there is a will to keep them private”, the definition was taken over from
National Media Ltd v Jooste 1996 3 SA 262 (SCA) 271IJ where it appears as a quotation from
“62A American Jurisprudence 2d “Privacy” para 40.
13 Ch 16 para 4.
14 Ch 16 para 5.
The second part of the test is an objective test. To determine the objective
reasonableness of a subjective expectation the Constitutional Court uses the German
idea to arrange different forms of privacy in concentric circles, ranging from so-
called inner sanctum privacy (family life and home affairs) which is protected
absolutely to so-called periphery privacy (public life and participation in public
affairs) which can be so diluted by societal interests that a subjective privacy
15
expectations are unreasonable.
This approach is not well aligned with the general provisions of the South African
Bill of Rights. The reasons for this conclusion are the following.
(a) The Constitutional Court determines whether a subjective expectation of pri-
vacy is objectively reasonable by taking into account matters that must be con-
sidered during the second phase of the analysis when the justification of a
factual limitation of the right is considered. This has resulted in an unnecessary
repetition of the same analysis and conclusions in dealing with different stages
16
of the application of the right. As has been explained, the court arranges dif-
ferent forms of privacy on a sliding scale from a “high” privacy expectation to a
17
“low” privacy expectation. Whether the expectation is “low” or “high” depends
on the extent to which the person concerned finds himself in private or in pub-
lic life and the existence of public interests which sets objective limits to privacy
expectations. When the two-stage approach for the application of rights is fol-
lowed, all these matters concern the limitation of rights. Privacy (like, for ex-
ample, property, association and expression) has many forms and the
particular form that has been affected must be taken into account when the
justifiability of an interference is considered. It is a matter concerning the na-
ture of the right in section 36(1)(a) of the Constitution and affects the strict-
18
ness with which the general limitation clause is applied. This was by
implication recognised by the Constitutional Court in Teddy Bear Clinic for
19
Abused Children v Minister of Justice and Constitutional Development. The court in-
validated legislative provisions which permitted the police, prosecutors and
________________________
15 In Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) the court stated that “[p]rivacy
is acknowledged in the truly personal realm, but as a person moves into communal relations
and activities such as business and social interaction, the scope of personal space shrinks ac-
cordingly”(para 67) and “the content of the right is crystallized by mutual limitation” which
particularly means that “the ‘right to privacy’ relates only to the most personal aspects of a per-
son’s existence, and not to every aspect within his/her personal knowledge and experience”
(para 79). See also Mistry v Interim Medical and Dental Council of SA 1998 7 BCLR 880 (CC), 1998
4 SA 1127 (CC) para 20; Magajane v Chairperson, North West Gambling Board 2006 10 BCLR 1133
(CC), 2006 5 SA 520 (CC) paras 42, 53; Teddy Bear Clinic for Abused Children v Minister of Justice
and Constitutional Development 2013 12 BCLR 1429 (CC), 2014 2 SA 168 (CC; Gaertner v Minister
of Finance 2014 1 BCLR 38 (CC), 2014 1 SA 442 (CC) para 49. For a useful summary of the
German theory, see Stern K “Allgemeiner Privatsphärenschutz durch das Grundgesetz” in
Bröhmer et al (eds) Festschrift für Georg Ress zum 70. Geburtstag am 21. Januar 2005 (2005) 1259–
1271.
16 See eg Magajane v Chairperson, North West Gambling Board 2006 10 BCLR 1133 (CC), 2005 5 SA
520 (CC) paras 40–95. See, however, Gaertner v Minister of Finance 2014 1 BCLR 38 (CC), 2014 1
SA 442 (CC) paras 35–43 in which the Constitutional Court in reaching its conclusion that the
right to privacy was factually limited focused on the potential factual impact of the application
of the impugned provisions and not, at that stage, on elements of the conventional public and
private law definition of privacy. The approach in the Gaertner case is to be welcomed.
18 See ch 18 para 2.3.2(a) and Mistry v Interim Medical and Dental Council of SA 1998 7 BCLR 880
(CC), 1998 4 SA 1127 (CC) para 20.
BCLR 1429 (CC), 2014 2 SA 168 (CC) para 60.
judicial officers to scrutinise and control intimate relationships of adolescents
and provided for the disclosure of information on the relationships. The court
considered that the restrictions affected inner-sanctum privacy and then dealt
with the justifiability of the limitation in conjunction with the limitation of the
right to human dignity and the rights of children. By applying the general limi-
tation clause to an aspect of so-called inner-sanctum privacy, the court clearly
indicated that inner-sanctum privacy is not absolute, despite the fact it could be
extremely difficult to justify a factual limitation of this form of privacy, it may,
in principle, be limited when there is compliance with the general limitation
clause.
(b) It seems as if the requirement that there must be a subjective expectation of
privacy is unnecessary. Even if you have a subjective expectancy of privacy, your
expectations must be reasonable. Whatever your subjective privacy expectations
are, a court will classify them to fall into one of the concentric circles and then
decide whether your expectations are reasonable.
(c) Absence of subjective privacy expectations can be dealt as decisions not to
20
exercise the right or the contractual waiver of the right. It may just as well be
left out of the definition of the protective ambit of the right. The possibility of
not exercising a right or of waiving a right is recognised in the case of all other
rights. It does not form part of the definition of any of the other rights. The
right to freedom of expression is, for example, not applied by asking firstly
whether one has a subjective expectation not to be interfered with while you
speak, and if so, secondly whether the expectation is reasonable.
21
Both private persons and juristic persons are protected by the right to privacy.
Although juristic persons are not protected by, for example, the right to human
dignity in section 10 of the Constitution and the right to psychological integrity in
section 12, they have a right to control information concerning the exercise of their
rights to, for example, property and economic activities, and this control may not be
interfered with unless the requirements for interference are complied with. In such
a case, the overlap of the right to privacy is not with rights of which only private
persons can be the bearers, but with the right to property and the right to practice a
trade, profession or occupation.
The right binds all organs of state. The nature of the right and the duties ensuing
from the right are such that private persons may be bound by the right.22
Those who are bound may not limit the right without justification. The state must
23
respect, protect, promote and fulfil the right. The duties imposed by the right also
include those expressly defined in the formulation of the right. Section 14(2) de-
scribes rights by referring to certain duties of those bound by the right. They are
examples of the general duty not to interfere with the conduct and interests
________________________
20 Currie I and De Waal J Bill of Rights Handbook (2013) 298 state that a subjective privacy expecta-
tion “provides an explanation for the permissibility of waivers of privacy”.
21 See in respect of juristic persons, Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd 2000 10 BCLR 1079 (CC), 2001 1 SA 545 (CC) paras 16, 18; Transnet
Ltd v SA Metal Machinery Co 2006 4 BCLR 473 (SCA) para 9.
22 NM v Smith 2007 7 BCLR 751 (CC), 2007 5 SA 250 (CC) para 132.
protected by the right and were included by the constitution-makers to forestall a

process of refining the meaning of the general privacy concept through expensive
and protracted litigation. These duties are the rights not to have one’s possessions,
home or property searched, one’s possessions seized and the privacy of one’s com-
munications infringed. The extent of these duties is determined by the meaning of
concepts such as “person”, “home”, “property”, “possessions”, “search”, “seizure” and
“communications”. However, since this is a non-exhaustive list of species of the
general duty in respect of privacy, not much depends on whether a particular intru-
24
sion of privacy falls within the one or the other category. In Mistry v Interim Medical
and Dental Council of SA, the Constitutional Court refrained from defining these
concepts, but held that the right to privacy is factually infringed by a statute author-
25
ising warrantless entry into private homes and rifling through intimate possessions.
In Powell NO v Van der Merwe, the Supreme Court of Appeal remarked that our
law has a long history of scrutinising search warrants with rigour and exactitude
and that the common-law right so protected is now included in section 14 of the
26
Constitution.

(limitation of the rights)
All interferences with the control of bearers of the right over personal matters must
comply with the requirements for the limitation of rights and the bearers of the
right may consent to a limitation subject to the requirements for waiver.
In describing the nature of the right for the purpose of weighing it against
purposes for its limitation the courts usually emphasise the the overlap with the right
27 28
to human dignity, personal authonomy and how the right was violated in the
29
past.
The following are examples of how the courts have dealt with the limitation of the
right.
Publication of personal information. In NM v Smith, the applicants contended that the
common law should be developed to provide more protection to privacy by not
limiting delictual liability to instances in which respondents have published
information on the HIV status of persons intentionally, but also when they have
done so negligently. The court held that in this case, the respondents had the
necessary intent and that it was therefore not necessary to decide whether the
common law should be developed.30
________________________
24 In Magajane v Chairperson, North West Gambling Board 2006 10 BCLR 1133 (CC), 2006 5 SA 520
(CC) para 59, the Constitutional Court, following United States and Canadian approaches that
all regulatory inspections constitute “searches”, said: “[I]t would be undesirable to impose at
the threshold inquiry [that is, before investigating the justifiability of the limitation] an arbi-
trary demarcation line between degrees of intrusion that would invoke the constitutional right
to privacy. Such line drawing would have the negative effect of placing certain administrative
inspections beyond the reach of judicial review.”
25 1998 7 BCLR 880 (CC), 1998 4 SA 1127 (CC) para 16.
26 2005 7 BCLR 675 (SCA), 2005 5 SA 62 (SCA) para 50.
BCLR 1079 (CC), 2001 1 SA 545 (CC) para 18.
29 Mistry v Interim Medical and Dental Council of SA 1998 7 BCLR 880 (CC), 1998 4 SA 1127 (CC)
para 25.
30 NM v Smith 2007 7 BCLR 751, 2007 5 SA 250 (CC).
Pregnancy. School policies that provide for the automatic exclusion of learners from
schools when they get pregnant limit the right to privacy and the limitation was is
31
justifiable in terms of the general limitation clause.
Child pornography. The Constitutional Court confirmed the validity of the
prohibitions in respect of child pornography in section 27 of the Films and
Publications Act 65 of 1996. The purpose of the provisions is to protect the dignity
of children, to prevent the abuse of children and eliminate the risk that the images
will be used to harm children. Where the actions which the criminal offence wishes
to prevent “is likely to [be conducted] in private, some intrusion by the law into the
32
private domain is justified”.
Consensual sexual conduct. The imposition of criminal liability on children under that
age of 16 years for a wide range of consensual sexual conduct by sections 15 and 16
of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007 violated the right to privacy. The provisions permitted police, prosecutors and
judicial officers to scrutinise and control intimate relationships of adolescents and
33
provided for the disclosure of information on the relationships. The Constitutional
Court held that the prohibition of prostitution does not infringe the right to privacy,
because a person who commits a crime that can be committed in private only, is not
34
protected by the right to privacy. This is an inconsiderate statement. Crimes that
prohibit the commission of acts in private must comply with the requirements for
the limitation of rights, and only if they do, can it be said that a person committing
such an act cannot rely on the right to privacy.
Searches and seizures. The Constitutional Court has investigated several legislative
provisions that provided for search and seizures without warrant. Although the court
recognises that search and seizure provisions serve the general well-being of the
public, in most cases searches and seizure without warrant have been invalidated
because the invasions of privacy was disproportionate to the invasion of privacy
35
(section 28(1) of the Medicines and Related Substances Act 101 of 1965); no or
insufficient guidelines were provided, encroachment upon inner sanctum privacy
was possible and there were less restrictive ways to achieve the purpose (section
36
65(1)(b) and (d) of the North West Gambling Act 2 of 2001 and section 11(1)(a)
37
and (g) of the Drugs and Drug Trafficking Act 140 of 1992); no justification could
________________________
High School 2013 9 BCLR 989 (CC) paras 108, 115.
32 De Reuck v Director of Public Prosecutions (WLD) 2003 12 BCLR 1333 (CC), 2004 1 SA 406 (CC)
paras 61–67 and 90.
BCLR 1429 (CC), 2014 2 SA 168 (CC) para 60.
34 Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) para 28.
35 Mistry v Interim Medical and Dental Council of SA 1998 7 BCLR 880 (CC), 1998 4 SA 1127 (CC)
para 21. See, also, Cherry v Minister of Safety and Security 1995 5 BCLR 570 (SE) – constitutional-
ity of ss 143 and 145 of Liquor Act 27 of 1989 raised; Park-Ross v Director: Officer for Serious Eco-
nomic Offences 1995 2 BCLR 198 (C), 1995 2 SA 148 (C) – s 6 of the Investigation of Serious
Economic Offences Act 117 of 1991 invalidated; Rudolph v Commissioner for Inland Revenue NO
1994 2 BCLR 9 (W), 1994 3 SA 771 (W) – constitutionality of s 74(3) of the Income Tax Act
raised.
36 Magajane v Chairperson, North West Gambling Board 2006 10 BCLR 1133 (CC), 2006 5 SA 520
(CC). In Platinum Asset Management (Pty) Ltd v Financial Services Board 2006 4 SA 73 (W), the
court held that the limitation of the right to privacy by the search and seizure provisions in
s 3(1), 3(2), 4(1)(b) to (f) of the Inspection of Financial Institutions Act 80 of 1998 are justifi-
able under s 36 of the Constitution.
37 Minister of Police v Kunjana 2016 9 BCLR 1187 (CC), 2016 2 SACR 473 (CC) paras 21–25.
exist for not requiring that warrants be obtained (section 32A of the Estate Agency
Affairs Act 112 of 1976 and section 45B of the Financial Intelligence Service Centre
Act 38 of 2001);38 the authorisation brought “within its sweep not only the places of
business and homes of people who are players in the customs and excise industry,
but also the homes of their clients, associates, service providers, and employees and
39
their relatives” (of section 4(4) of the Customs and Excise Act 91 of 1964). The
rule of law as a constitutional founding value requires the common-law intelligibility
principle to be understood to include that search and seizure warrants, issued in
terms of section 21 of the Criminal Procedure Act 57 of 1977, must specify the
offence in respect of which the action is undertaken. A valid warrant is one that in a
reasonably intelligible way
(a) states the statutory provision in terms of which it is issued;
(b) clearly mentions the authority it confers upon the searcher;
(c) identifies the person, container or premises to be searched for and seized, with
sufficient particularity; and
(d) specifies the offence which triggered the criminal investigation and names the
suspected offenders.40
A high court questioned the constitutionality of an Anton Piller order, that is, as
described by the court, “a Draconian form of relief in that it authorises access to the
respondent’s premises for purposes of searching for and seizing documents and
material relevant to a proposed action before an action has been instituted . . .
without notice to the respondent, while the hearing is frequently in camera”. The
court held that the constitutionality of each case must be considered on its own
merits.41
Private possession, use and cultivation of cannabis (dagga). The Constitutional Court
invalidated provisions of the Drugs and Drug Trafficking Act 140 of 1992 and the
Medicines and Related Substances Act to the extent that they criminalise the use,
possession or cultivation of cannabis in a private place by adults for their private
42
consumption.
The Interception and Monitoring Prohibition Act 127 of 1992 regulates the limi-
tation of the right to privacy of communications.
2 Religion, belief and opinion

2.1 Article 15 384
2.4 Justification for non-compliance with the right (limitation of the right) 387
________________________
38 Estate Agency Affairs Board v Auction Alliance (Pty) Ltd, 2014 4 BCLR 373 (CC), 2014 3 SA 106
(CC) paras 14, 40.
39 Gaertner v Minister of Finance 2014 1 BCLR 38 (CC), 2014 1 SA 442 (CC) paras 37, 38.
40 Minister of Safety and Security v Van der Merwe 2011 7 BCLR 651 (CC), 2011 5 SA 61 (CC) paras
56, 59. See also Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of
Public Prosecutions 2008 12 BCLR 1197 (CC), 2009 1 SA 1 para 159.
41 Rath v Rees 2007 1 SA 99 (C) paras 28, 34–36. See also Audio Vehicle Systems v Whitfield 2007 1 SA
434 (C) para 58.
42 Minister of Justice and Constitutional Development v Prince; National Director of Public Prosecutions v
Rubin; National Director of Public Prosecutions v Acton 2018 10 BCLR 1220 (CC).
2.1 Article 15
15(1) Everyone has the right to freedom of conscience, religion, thought, belief and
opinion.
(2) Religious observances may be concluded at state and state-aided institutions,
provided that – (a) those observances follow rules made by the appropriate public au-
thorities; (b) they are conducted on an equitable basis; and (c) attendance at them is
free and voluntary.
(3)(a) This section does not prevent legislation recognising – (i) marriages con-
cluded under any tradition, or a system of religious, personal or family law; or (ii) sys-
tems of personal and family law under any tradition, or adhered to by persons
professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section and
the other provisions of the Constitution.

The right protects all actions to form, entertain, change, promote, teach and
manifest religious and other thoughts, opinion and belief, and to associate and
assemble with others on these matters.43
Religious activities are practices, observances, rituals and rites pertaining either
generally or particularly to a system that recognises, obeys and worships a personal
44
god or gods. Coertzen states:
“On the one hand, religion has more general aspects of embracing all beliefs and ac-
tions that concern the ultimate origin, meaning, and purpose of life involving the re-
sponses of the human heart, soul, mind, conscience, intuition and reason to reve-
lation, to transcendent values, and to the idea of the holy. On the other hand, religion
is always a specific creed, i.e. an accepted cadre of beliefs and values regarding the deep-
est origins, meanings and aims in life: a specific cult – rituals, liturgies, patterns of wor-
ship, and dedication; a specific code of conduct – accepted by individuals and the
community as a whole as a code of conduct for those who confess the faith, practice
the cult, and act in accordance with it; and a specific confessional community of people
45
who accept the creed, the cult, and the code of conduct, and also practice it.”
South African courts have not yet developed a so-called dictionary definition of
religion, but have emphasised the close relationship with the other concepts in
section 15 namely thought and belief and with cultural and associational rights.46
Members of particular religious creeds have beliefs of a very personal nature and
they are usually not concerned about whether and how the public or the state
________________________
43 S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC), 1997 4 SA 1176 (CC) para 92;
Christian Education South Africa v Minister of Education 2000 10 BCLR 1051 (CC), 2000 4 SA 757
(CC) para 18; Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC),
2002 2 SA 794 (CC) para 38. For useful overviews, see Malherbe EFJ “Enkele kwelvrae oor die
grondwetlike beskerming van die reg op godsdiensvryheid” 2006 TSAR 629 632–635; Van der
Schyff G “The freedom to propagate a religion or denomination as an element of the right to
freedom of religion” 2002 THRHR 627.
44 Van der Schyff G “The legal definition of religion and its application” 2002 SALJ 288. In Prince
v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA 794 (CC)
para 14, Rastafarianism was acknowledged as a religion and the sacramental smoking of can-
nabis as a religious practice in that religion.
45 Coertzen P “Being church and freedom of religion – the function and ambit of religious
freedom” in Van de Beek et al Freedom of Religion (2010) 192. Coertzen’s emphasis.
46 See the analysis of South African and foreign case law by Henrico R “Understanding the
concept ‘religion’ within the constitutional guarantee of religious freedom” 2015 TSAR 784.
defines religion. It would therefore not be advisable for the state to try to define
religion and religious organisations in order to control their activities for whatever
reason or to involve itself with disputes on religious dogma. The Constitutional
Court indeed seems to be hesitant to express itself on church dogma in religious
47
disputes between private persons and institutions. If necessary, control in this field
must be exercised by the prosecution of and coviction for crimes such as murder,
assault, rape, kidnapping, theft, fraud and tax evasion committed in a religious
context. The commission of crimes like these cannot be excused when they are
committed in the name of religion.48
The Constitution does not only protect the actions which must be performed by
virtue of one’s membership of a religious or other associations, but also religious
and cultural practices which one performs voluntarily without being a member of a
religious association, because what “we choose voluntarily rather than through a
feeling of obligation only enhances the significance of a practice to our autonomy,
our identity and our dignity”.49 Although religion is ordinarily concerned with
personal faith and belief, whereas culture relates to traditions and beliefs developed
by a community, religious practices are frequently also informed by custom, and
cultural beliefs of a community. A belief or practice may be both religious and
cultural.50
Funeral and graveside rites, rituals and ceremonies form part of religious beliefs
and practice, but a complete freedom to choose where burials are to take place
51
without the consent of the owner of the land is not included.
Protected conduct includes participation in religious observances at state or state-
aided institutions, and, as recognised by legislation, the conclusion of marriages
under any tradition or system of religious, personal or family law and adherence to
52
systems of personal and family law under any tradition or a particular religion.
The right to perform any of the protected actions includes the right to refuse to or
refrain from performing them.
Although freedom of conscience usually overlaps with freedom of religion, the
expression “freedom of conscience” protects bearers of the right from being
coerced into acting in ways contrary to their deepest convictions so that they
experience a severe personal crisis.
All natural persons are bearers of the right.
Only persons who profess religious beliefs and participate in religious activities, as
53
described above, are bearers of the right to freedom of religion. Non-religious
________________________
47 In De Lange v Presiding Bishop of the Methodist Church 2016 1 BCLR 1 (CC), 2016 2 SA 1 (CC)
para 41 the court said that a charge that a church tolerates same-sex relationships but requires
its ministers not to enter into same-sex marriages, seems to be closely drawn to the church’s
doctrine and the court cannot assess whether “the line is rational or hypocritical without judg-
ing the Church dogma” which is a matter that may be productively canvassed in arbitration
proceedings.
48 See Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA
794 (CC) para 149 n 10 in respect of religious practices that violates the constitutional rights of
others.
49 MEC for Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC), 2008 1 SA 474 (CC) paras 64–
66.
51 Nkosi v Bührmann 2002 6 BCLR 574 (SCA), 2002 1 SA 372 (SCA) para 46.
52 This protection is implied by s 15(2) and (3).
53 Van der Schyff G “Cannabis, religious observance and the South African Bill of Rights” 2003
TSAR 124.
belief, thoughts and convictions are protected by the other concepts in the provision
and the quality of protection in these cases do not differ from the protection in the
case of the right to religious freedom. To the extent that a juristic person (for ex-
ample, a church or other organisation) takes decisions about and participates in the
protected activities as a collective entity (which decisions and actions, depending on
the internal rules of the juristic person, all its members need not necessarily sup-
port), a juristic person may be the bearer of the right.54 It may also transpire that
juristic persons other than churches may undertake activities that manifest religious
and other beliefs and opinions.
The right binds all organs of state and is capable of being applied to private
relations for the purposes of section 8(2).55
The right to freedom of religion in the European Convention on Human Rights for-
bids inter alia “a treatment intended to change the process of thinking (‘brain-wash-
ing’); prohibits any form of compulsion to express thoughts, to change opinion, or
to divulge a religious conviction; and clarifies that no sanction may be imposed
either on the holding of a view or on the change of a religion or conviction: it pro-
56
tects against indoctrination by the state”.
In the South African Constitution, the state’s duty to respect the right does not
prohibit all forms of direct and indirect state involvement with the conduct and
interests protected by the right. In order to make it clear that the Bill of Rights does
not erect a so-called impenetrable wall between church and state, section 15(2)
provides that religious observances may be conducted at state and state-aided institu-
tions and section 15(3) provides that legislation may be passed to recognise tradi-
tional and religious systems of marriage, family and personal law for legal purposes.
However, state action differentiating between persons on the ground of religion,
conscience and belief must comply with the right to equality in section 9 and state
action affecting protected conduct may not directly or indirectly have “the effect of
coercing persons to observe the practices of a particular religion, or of placing
constraints on them in relation to the observance of their own religion”57 or other
convictions and beliefs.58 Such state actions constitute limitations of the right and
must comply with the requirements for the limitation of the right.
In S v Lawrence; S v Negal; S v Solberg, the Constitutional Court held that the prohi-
bition in the Liquor Act 27 of 1989 of the selling of liquor under a grocer’s wine
licence on Sundays and other Christian holidays did not compel adherence to
________________________
54 Malherbe EFJ “Die grondwetlike beskerming van godsdiensvryheid” 1998 TSAR 679.
55 Kotze v Kotze 2003 3 SA 628 (T) 629 – invalidation of a provision in a divorce settlement that a
child must be brought up in a particular church. See also Taylor v Kurtstag 2005 7 BCLR 705
(W), 2005 1 SA 362 (W) in which the right was applied to relations between a religious organi-
sation and a member of the organisation.
56 Vermeulen B “The freedom of religion in article 9 of the European Convention on Human
Rights” in Van de Beek et al (eds) Freedom of Religion (2010) 13.
Gold Circle (Pty) Ltd v Premier, KwaZulu-Natal 2005 4 SA 402 (D) 414.
58 Christian Education South Africa v Minister of Education 2000 10 BCLR 1051 (CC), 2000 4 SA 757
(CC) para 19. In Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231
(CC), 2002 2 SA 794 (CC) paras 40, 97 and 111 it was held that the refusal to provide for an
exemption from a prohibition of the use or possession of dagga for religious purposes limits
the rights of Rastafari to practise their religion.
59
religious observance and did not constitute an infringement of the right. In King-
dom Radio (Pty) Ltd v Chairperson, Independent Broadcasting Authority, a high court held
that failure by the state to act to facilitate religion does not amount to interference
60
with the freedom of religion.
2.4 Justification for non-compliance with the right (limitation of the right)
All factual limitations of the right in section 15 must comply with limitation clauses.
The Constitutional Court held that the nature and extent of a limitation of the right
to religious freedom of parents of children in independent schools, by not providing
for the exemption of such parents and schools from a prohibition of corporal
punishment, was not unduly burdensome in relation to the purposes of diminishing
public and private violence and of protecting all people, especially children, from
61
maltreatment, abuse or degradation.
Similarly, the court held that failure to provide for an exemption, for religious
purposes, from the prohibition of the possession and use of dagga was a limitation
of the right to religious freedom of Rastafari, but that the limitation is a reasonable
measure to take for the purpose of combating drug abuse – an exemption proce-
dure as a less intrusive alternative would compromise the achievement of the pur-
pose. 62 The courts have identified the protection of the life of a child as a purpose
for which the right to freedom of religion may be limited. 63
The internal rules of a church or other voluntary organisation,64 which rules may
limit the right to freedom of religion, belief, opinion and conscience of members of
that church or organisation, are not the “law of general application” to which sec-
tion 36(1) refers. “Law of general application” in section 36(1) refers to the rules of
the secular legal system of the state and not to internal rules of organisations.65 For
the purposes of section 36, these internal rules are the limiting action of the organi-
sation as a collective entity and the “law of general application” in terms of which
these actions are undertaken are the common-law, statutory and constitutional
authorisation (for example, the right to freedom of association in section 18) to
________________________
59 S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC), 1997 4 SA 1176 (CC) para 105.
60 Kingdom Radio (Pty) Ltd v Chairperson, Independent Broadcasting Authority 2006 8 BCLR 945 (W)
para 77.
61 See Malherbe EFJ “Enkele kwelvrae oor die grondwetlike beskerming van die reg op godsdi-
ensvryheid” 2006 TSAR 636–641.
62 Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA 794
(CC) para 141. A minority judgment in this case suggested that the limitation of religious prac-
tices which do not involve the violation of other provisions of the Bill of Rights must be viewed
in a more serious light than the limitation of practices that violate the rights of others, such as
human sacrifice, the immolation of widows or the stoning of adulterers – para 149.
63 Christian Education South Africa v Minister of Education 2000 10 BCLR 1051 (CC), 2000 4 SA 757
(CC) paras 40 and 50.
64 For an analysis of church constitutions/statutes/order, see Van Coller EH “Geloofinstellings
en die toepassing van die leerstuk ‘nie-inmeninging’ en ‘marginale toetsing’ deur die howe: ƌ
regsvergelykende perspektief” 2016 TSAR 213–219. Hay v B 2003 3 SA 492 (W) 494; see Katz M
“The doctor’s dilemma: Duty and risk in the treatment of Jehovah’s witnesses” 1996 SALJ 484;
McQuid-Mason D and Lotz L “Religious beliefs and the refusal of blood transfusions for chil-
dren: what should doctors do?” 2005 THRHR 315–321.
65 Hay v B 2003 3 SA 492 (W) 494; see Katz M “The doctor’s dilemma: Duty and risk in the
treatment of Jehovah’s witnesses” 1996 SALJ 484; McQuid-Mason D and Lotz L “Religious be-
liefs and the refusal of blood transfusions for children: what should doctors do?” 2005 THRHR
315–321.
adopt and enforce their internal rules. While a church member’s right to freedom
of religious association is limited by her or his ex-communication, such limitation
may be reasonable for the purpose of maintaining conformity against deliberate and
provocative flouting of the internal laws and customs of the religion, “to maintain
standards and identify unacceptable conduct and . . . to encourage the dissenter to
return to the fold”.66
Section 15 contains two specific provisions dealing with the exercise of specific
aspects of this right.
Section 15(2) provides that religious observances at state or state-aided institutions
must be conducted according to rules made by the appropriate public authorities,
on an equitable basis, and attendance of such observances must be free and
voluntary. The purpose of the inclusion of this provision was to prevent the courts
from invalidating religious observances at state or state-aided institutions as a breach
of the separation between state and religion. It is therefore not a characteristic of
freedom of religion in South Africa that religion may not feature in any way in state
and state-aided institutions. In fact, as indicated above, religious activities at state
and state-aided institutions is an incident of the conduct protected by the right.
However, there must be rules in terms of which the religious observances are
conducted, the rules must be made by the appropriate authorities, and in order to
ensure that the state does not favour any particular religion, the observance must be
on an equitable basis and the attendance of the observances must be free and
67
voluntary.
Section 15(3) provides that legislation recognising marriages concluded under
any tradition, or a system of religious, personal or family law, or the recognition of
systems of personal or family law under any tradition or adhered to by persons who
profess a particular religion, and recognition in terms of these provisions must be
68
consistent with the provisions of the Constitution. The purpose of the inclusion of
this provision was to ensure that the courts do not invalidate such recognition as a
breach of a separation between the state and religion and between the state and cul-
tural communities, and, at the same time, to ensure that such recognition does not
imply the immunisation of rules of such traditions and legal systems, and actions
performed in terms of the rules, from compliance with the Constitution, particu-
larly, with the Bill of Rights.
________________________
67 S 15(2). See, in respect of the application of this provision, Wittmann v Deutscher Schulverein
Pretoria 1999 1 BCLR 92 (T), 1998 4 SA 423 (T).
68 S 15(3).
Chapter 23
Expression
Assembly – Association
Political rights – Citizenship
1 Expression 389
2 Assembly 397
3 Association 400
4 Political rights 403
5 Citizenship 408
1 Expression
1.1 Section 16 389
right) 393
1.1 Section 16
16(1) Everyone has the right to freedom of expression, which includes –
(a) freedom of the press and other media;
(b) freedom to receive and impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to –
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.
1.2 Protected conduct and bearers of the right

The right to freedom of expression protects the ability and all actions to impart and
1
receive information and ideas.
All aspects of communication are covered, including the freedom to decide on
• the form, contents and sources of communication;
• the media, channels and vehicles of communication;
• the addressees, audiences and receivers of communications; and
• the time and locality of delivery.
________________________
paras 53, 54.
389
“Expression” includes communication through all media (including broadcasting2
and electronic media), conduct, signs and clothing that impart information and
ideas. It also includes advertising. Section 14(1)(c) of the Constitution protects the
“privacy” of communications, that is, the control of access to communication and
control over possession and publication of the information.
3
The right also includes the freedom not to communicate. Sections 35(1)(a) and
(b) and 35(3)(h) and (j) of the Constitution deal with the right of arrested and
accused persons to remain silent.
Because the right to freedom of expression includes the right to receive informa-
tion, the withholding of information (or, for that matter, the selective release of
opinions and information) from bearers of the right to which they are entitled
under the right to information in section 33 of the Constitution (discussed in chap-
ter 26 paragraph 1), must comply with limitation requirements.
The truth, reasonableness, merits or value of an expression is not relevant when
we determine whether a particular communication falls within the protective ambit
of a right during the first phase of a bill of rights enquiry. Nor is it relevant whether
it contains facts or fiction.4 It could be a factor when the justification of a factual
limitation is considered.
The constitution-makers decided to refer expressly to certain forms of expression
to ensure that such forms are not overlooked. All kinds of expression are important
and the enumeration of these forms does not necessarily mean that they are more
important than other forms. In fact, as will be indicated, section 16(1)(b) contains as
such a general description of freedom of expression. According to section 16(1)(a)
to (d), the protective ambit of the right includes the following:
5
(a) The freedom of the press and other media. This is a key freedom in all democracies.
The media plays a key role in ensuring that the rights of the public to receive
information and ideas are respected.6 The press and other media are protected as
key instruments for the protection of the freedom of expression of all individuals.7
The protection of their sources by journalists does not constitute “expression” as
________________________
2 Contra Radio Pretoria v Voorsitter van die Onafhanklike Kommunikasie-owerheid van SA 2006 3 BCLR
444 (T) 451DE. Licensing as a prerequisite for the exercise of a right, limits the right. The fact
that broadcasting is regulated through licensing cannot be understood to mean that broadcast-
ing is not “expression”. See Pretorius D “Freedom of expression and the regulation of broad-
casting” 2007 SAJHR 71.
3 See Nel v Le Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562 (CC) paras 5–7; Case v Minister of
Safety and Security; Curtis v Minister of Safety and Security 1996 5 BCLR 609 (CC), 1996 3 SA 617
(CC) para 26.
4 City of Cape Town v AD Outpost (Pty) Ltd 2000 2 BCLR 130 (C) 144; North and Central Council v
Roundabout Outdoors (Pty) Ltd 2002 2 SA 625 (D) 634–635. The truth of communications is tak-
en into account in German law to determine whether it is protected, lies are not protected –
Sachs M (ed) Grundgesetz (2003) 300.
5 Freedom of the press was discussed in Holomisa v Argus Newspapers Ltd 1996 6 BCLR 836 (W)
855, 1996 2 SA 588 (W) 608–609; Nel v Le Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562
(CC); Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC); SABC Ltd v National
Director of Prosecutions 2007 2 BCLR 167 (CC), 2007 1 SA 523 (CC) para 24; Midi Television
(Pty) Ltd v Director of Public Prosecutions (WC) 2007 9 BCLR 958 (SCA), 2007 5 SA 540 (SCA) pa-
ras 5, 6.
6 SABC Ltd v National Director of Prosecutions 2007 2 BCLR 167 (CC), 2007 1 SA 523 (CC) paras 28,
177.
7 Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) 2007 9 BCLR 958 (SCA), 2007 5 SA
540 (SCA) para 6.
Chapter 23 Expression – Assembly – Association – Political rights – Citizenship 391
such, but it is often the only way in which journalists can obtain information it is
therefore covered by the protection afforded to the receiving of information.8
(b) The freedom to receive or impart information or ideas. This phrase actually contains
the general, basic definition of the protective ambit of the right. The core freedom
of the right to freedom of expression in section 16(1) is to receive and to impart
information or ideas. It is somewhat confusing to describe it as a “form” of expres-
sion and it was probably included because the majority of the Constitutional Court
in Case v Minister of Safety and Security; Curtis v Minister of Safety and Security9 was (un-
necessarily) doubtful about whether the right in the Interim Constitution included
the freedom to receive information. The freedom to receive information is essential
for the exercising of virtually all other rights, particularly the freedom freely to form
thoughts and opinions in section 15(1). It includes the freedom to choose the
source from which one wishes to receive information. The state may not exclude
sources of information without complying with limitation requirements. It also
includes the right not to receive information. The right to access information not
freely available to the public from a state or private source is covered by section 32
and not by this right.
(c) The freedom of artistic creativity. This provision protects all actions to create artistic
works, the works themselves as forms of expression, and the freedom to communi-
10
cate and distribute artistic works, ideas and information.
(d) Academic freedom and the freedom of scientific research. The freedom of scientific
research is an important part of freedom of expression. Subject to the provisions of
limitation clauses, it protects freedom of choice in respect of the topics of scientific
research, the methods of scientific research, and the publication and dissemination
of research outcomes. The right to academic freedom also protects the transfer of
knowledge and skills within an educational framework and of endeavours to in-
crease and apply knowledge. These freedoms are also protected by the right to free-
11
dom of thought, belief and opinion.
Section 16(2) of the Constitution provides that the right to freedom of expression
does not protect propaganda for war; incitement of imminent violence or advocacy
of hatred based on race, ethnicity, gender or religion, which constitutes incitement
12
to cause harm. In Afriforum v Malema a high court held that “the true yardstick of
________________________
8 See in respect of a 10 of the European Convention on Fundamental Rights and Freedoms, Van
Dijk P and Van Hoof GHJ Theory and Practice of the European Convention on Human Rights (1998)
560.
9 1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC) para 92.
10 The right to communicate artistic thoughts and ideas was referred to in Phillips v Director of
Public Prosecutions (WLD) 2003 4 BCLR 357 (CC), 2003 3 SA 345 (CC). The European Court of
Human Rights held in Müller (Judgment of 24 May 1988, A.133, 19) that the organisers of an
exhibition of paintings exercise their freedom of expression. Academic freedom formed part
of this right in s 14(1) of the Interim Constitution.
11 See Malherbe EFJ “Die regsbeskerming van akademiese vryheid en universiteitsoutonomie in
’n nuwe Suid-Afrika” 1993 TSAR 359; Malherbe EFJ “The erosion of academic freedom in SA:
Reflections on a battle forfeited” 2003 TSAR 213; Alston K and Malherbe EFJ “The constitu-
tional right to academic freedom: an exploration into definition, scope and threats” 2009
TSAR 102.
12 See Human Rights Commission of SA v SABC 2003 1 BCLR 92 (BCCSA) and Freedom Front v South
African Human Rights Commission 2003 11 BCLR 1283 (SAHRC); Pimstone D Hate speech, the
Constitution and the Conduct of Elections Occasional Papers, Konrad-Adenauer-Stiftung (1999) 10;
Rautenbach IM “Haatspraak en die reg op die vryheid van uitdrukking in Suid-Afrika” 2007
TSAR 551; Barrie GN “The divergent constitutional approach to hate speech in South Africa
and the United States” 2013 TSAR 697.
hate speech is neither the historical significance thereof nor the context in which
words are uttered, but the effect of the words, objectively considered, upon those
13
directly affected and targeted thereby”. Although limitations of expressions of this
nature could have been dealt with by the application of the general limitation
clause, the constitution-makers decided to exclude them from the protective ambit
of the right. Limitations of these forms of expression need not comply with the
general limitation clause. The constitution-makers had done the limitation. The
limitation of forms of expression not covered by the exclusions in section 16(2)
must satisfy the requirements of the general limitation clause in section 36(1). In
14
Islamic Unity Convention v Independent Broadcasting Authority, the court invalidated a
prohibition on broadcasting certain material, because it was not covered by the
exclusion of hate speech in section 16(2) and the limitation did not comply with
section 36.
The values traditionally considered to underlie freedom of expression are truth-seeking,
15 16
democratic political activity and self-fulfilment (personality development).
Because expression is the instrument for giving effect to freely formed thoughts,
beliefs and opinions, another important function of the right is to secure a plurality
of information sources, means of communication and messages. Although these are
accepted values, the purposes of the right to freedom of expression may not be
restricted to truth-seeking, democratic political activity and self-fulfilment so that
expressions that do no serve these purposes are not considered protected. Apart
from the explicit exclusions in section 16(2), the South African Constitutional Court
rejected the American approach that a court may exclude certain forms of expres-
sion from the protective ambit of the right because the court considers it not to
17
serve the underlying values of the right. In South Africa such limitations are dealt
with in terms of the general limitation clause.
Both natural and juristic persons are bearers of the right.
The right binds all organs of state. The nature of the right and nature of the duty
not to limit the right by restricting bearers of the right from exercising it freely is
such that private persons are bound by the right.
________________________
13 Afriforum v Malema 2010 5 SA 235 (GNP) 239I. S 10 of the Promotion of Equality and Preven-
tion of Unfair Discrimination Act 4 of 2000 defines hate speech as words based upon one or
more grounds which constitute unfair discrimination generally or on the specific grounds of
race, gender or disability, that could reasonably be construed to demonstrate a clear intention
to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred. See also
Sonke Gender Justice Network v Malema 2010 7 BCLR 729 (EqC).
15 For an extensive analysis of the role of freedom of expression in giving effect to all the ele-
ments of democracy within the legislative, executive and judicial organs of state, see Venter R
“The role of freedom of expression a democratic system” 2018 TSAR 52-87, 308-343.
16 SA National Defence Union v Minister of Defence 1999 6 BCLR 615 (CC), 1999 4 SA 469 (CC) para
7; S v Mamabolo 2001 5 BCLR 449 (CC), 2001 3 SA 409 (CC) para 37; Islamic Unity Convention v
Independent Broadcasting Authority 2002 5 BCLR 433 (CC), 2002 4 SA 294 (CC) paras 26–30; De
Reuck v Director of Public Prosecutions (WLD) 2003 12 BCLR 1333 (CC), 2004 1 SA 406 (CC) para
48; Laught It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International 2005 8
BCLR 743 (CC), 2006 1 SA 144 (CC) para 45; SABC Ltd v National Director of Prosecutions 2007 2
BCLR 167 (CC), 2007 1 SA 523 (CC) para 23; Phillips v National Director of Public Prosecutions
2003 4 BCLR 357 (CC), 2003 3 SA 345 (CC) para 23.
para 48.
Persons and institutions bound by the right may not limit the exercising of freedom
of choice and action in respect of the protected conduct and interests without
18
complying with the general limitation clause. All forms of interference with the
protected conduct and interests amount to factual limitations of the right. In Print
Media South Africa v Minister of Home Affairs, the Constitutional Court stated: “The
upper limit of regulation may be set at an absolute ban, which extinguishes the right
totally. Regulation to a lesser degree constitutes infringement to a smaller extent,
but infringement nevertheless.”19 Examples of how the right can be limited are
referred to in the next paragraph.
Like all other rights, the right to freedom of expression is not an absolute right and
does not automatically trump other rights. The courts have dealt with the limitation
of the right to freedom of expression in various contexts
The right to remain silent. The Constitutional Court held that section 205 of the
Criminal Procedure Act 51 of 1977, which compels a person who has information
relating to a criminal offence to answer all questions when examined by a magistrate
is constitutional. The effective prosecution of crimes (the purpose of the limitation)
outweighs the extent of the limitation. The nature of the limitation is such that a
witness may refuse to answer a question if there is a “just excuse” to do so. This
excuse may be based on an infringement of, or threat to, another constitutional
right and the compulsion to answer the question must then be justifiable under the
general limitation clause.20
Defamation. The Constitutional Court held that the common-law rule that falseness
of a defamatory statement does not constitute an element of defamation does not
21
unjustifiably limit the right to freedom of expression. The court emphasised the
importance of freedom of expression in a democratic society. The purpose of the
limitation in that complainants need not prove falseness was to protect the right to
human dignity. The nature and extent of the limitation was such that it had a
chilling effect on the publication of information, but “this chilling effect is reduced
considerably by the defence of reasonable publication”. The relation between the
limitation and its purpose and the question of less invasive limitations were dealt
with by referring to “the careful balance struck between plaintiffs’ and defendants’
interests” by the Supreme Court of Appeal in National Media Ltd v Bogoshi22 in
developing a defence of reasonable publication. An alternative way, namely
“burdening either plaintiffs or defendants with the onus of proving a statement to
be true or false, in circumstances where proof one way or the other is impossible”
would result in a zero-sum game and this is not an acceptable alternative.23
________________________
18 See, for example, Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) 2007 9 BCLR 985
(SCA), 2007 5 SA 540 (SCA) para 8.
para 51.
21 Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC).
22 1999 1 BCLR 1 (SCA), 1998 4 SA 1196 (SCA).
23 Khumalo v Holomisa 2002 8 BCLR 771 (CC), 2002 5 SA 401 (CC) paras 21–24, 28, 39, 43–44.
Aspects of the constitutionality of the law of defamation were also considered in De Klerk v Du
Plessis 1994 6 BCLR 124 (T), 1995 2 SA 40 (T); Potgieter v Kilian 1995 11 BCLR 1498 (N), 1996
2 SA 276 (N); Gardener v Whitaker 1995 2 SA 672 (E), 1994 5 BCLR 19 (E); Holomisa v Argus
Newspapers Ltd supra; Bogoshi v National Media Ltd 1996 3 SA 78 (W); Du Plessis v De Klerk 1996 5
BCLR 658 (CC), 1996 3 SA 850 (CC); National Media Ltd v Bogoshi 1999 1 BCLR 1 (SCA), 1998
Nude performances. The prohibition in section 160(d) of the Liquor Act 27 of 1989 of
nude performances at venues with liquor licenses was invalidated; the prohibition
was overbroad because it could be applied to licensed theatres whose main business
24
was to communicate artistic thoughts and ideas.
Contempt of court. The Constitutional Court confirmed the validity of the crime of
contempt of court. Without applying the general limitation clause, the court
developed the common law in replacing the test that the statement in issue must
have the tendency to bring the administration of justice into disrepute with a likely-
to-damage test, whether “that offending conduct, viewed contextually, really was
likely to damage the administration of justice”.25
Prejudicing relations between groups. The prohibition in clause 2(a) of the Code of
Conduct for Broadcasting Services prohibited the broadcasting of material that is
“likely to prejudice relations between sections of the population”, was not covered by
the categories of expression excluded in section 16(2). It had to comply with section
36. The clause was invalid; it was a substantial restriction of the right of broadcasters
to communicate and of the right of the public to receive information, views and
opinions and less restrictive means could have been used to achieve its purpose.26
Child pornography. The prohibition of the possession of child pornography in section
27 of the Films and Publications Act 65 of 1996 is valid. The purpose of the
limitation was to protect the dignity, humanity and integrity of children, the
limitation was not overbroad because researchers could apply for an exemption and
the limitation was not significantly more restrictive than alternative ways to limit the
right for these purposes.27
Broadcasting court proceedings. The Constitutional Court held that the test of the
Supreme Court of Appeal that television and radio broadcasting of its proceedings
should not be permitted unless the court was satisfied that it would not inhibit
justice, establishes an appropriate relationship between the right to freedom of
expression and the fairness of proceedings.28
Advertising. The courts held that the fact that the value of advertising as a form of
expression may be less than the value of other forms of expressions is a factor to be
29
taken into account when the limitation of the right is considered.
________________________
4 SA 1196 (SCA). In respect of interdicts as a form of prior control of communications, see

Mandela v Falati 1994 4 BCLR 1 (W), 1995 1 SA 251 (W) and Government of the RSA v Sunday
Times Newspaper 1995 2 BCLR 182 (T), 1995 2 SA 221 (T); Hix Networking Technologies v System
Publishers (Pty) Ltd 1997 1 SA 391 (A) and on prior control in general, Devenish G “Prior judi-
cial restraint and media freedom in South Africa – some cause for concern” 2011 THRHR 12–
27.
24 Phillips v Director of Public Prosecutions (WLD) 2003 4 BCLR 357 (CC), 2003 3 SA 345 (CC) paras
27, 50.
25 S v Mamabolo 2001 5 BCLR 449 (CC), 2001 3 SA 409 (CC) paras 45, 48, 50. In S v Moila 2006 1
SA 330 (T) 346, the court still referred to the tendency test.
26 Islamic Unity Convention v Independent Broadcasting Authority 2002 5 BCLR 433 (CC), 2002 4 SA
294 (CC) paras 32–35, 50.
paras 53, 63, 68–69, 71, 77, 79, 84. The Constitutional Court held that little can be said to con-
trovert the importance of banning child pornography and the protection of children from ex-
posure to in appropriate materials as purposes for the limitation of the right to freedom of
expression. Print Media South Africa v Minister of Home Affairs 2012 12 BCLR 1364 (CC), 2012 6
28 SABC v National Director Public Prosecutions 2007 2 BCLR 167 (CC), 2007 1 SA 523 (CC) para 46.
29 City of Cape Town v AD Outpost (Pty) Ltd 2000 2 BCLR 130 (C) 144. See, also, North and Central
Council v Roundabout Outdoors (Pty) Ltd 2002 2 SA 625 (D) 634–635.
Public campaigns. The appeal and review remedies provided for in sections 35 and 36
of the Environment Conservation Act 73 of 1989 cannot be interpreted to exclude
public campaigns against environmental matters covered by such appeals and
remedies, because it would amount to an unjustifiable limitation of the right to
freedom of expression. The exercise of the right to freedom of expression may serve
as the purpose for the lawful limitation of the right to property. Although a publicity
campaign against the construction of a fuel service station on a site in an
ecologically sensitive area interfered with the right to property of the owner of the
site and therefore limits it, the nature of the limitation was such that it did not
30
physically impede the construction.
Elections. Section 89(2)(c) of the Electoral Act 73 of 1998 prohibits the publication of
“any false information with the intention of influencing the conduct or outcome of
an election” and item 9(1)(b) of schedule 2 of the act provides that “no registered
party or candidate may publish false or defamatory allegations in connection with an
election in respect of a party, the candidates, representatives or members”. Before
the national election in May 2014, the Democratic Alliance sent a bulk SMS to 1.5
million potential voters in which it was said that “[t]he Nkandla report shows that
Zuma [the President] stole your money to build his R246m home”. The
constitutionality of the statutory provisions concerned were not questioned. The
majority of the Constitutional Court held that the SMS was not covered by the
prohibition in the provisions, the statement was not a statement of fact but an
interpretation of the content of the Nkandla report. It argued that the provisions
were directed to those statements that influence the conduct or outcome of an
election by falsely representing information about the practical arrangements
31
regarding the conduct of the elections itself.
Freedom of speech in parliament. The Constitutional Court invalidated section 11 of the
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of
2004 to the extent that it applied to members of parliament. This provision
authorised chairpersons of the houses of parliament to direct security services to
remove anybody who creates or takes part in disturbances within the parliamentary
precinct. The court held that the article limited the right to free speech guaranteed
for members of parliament in sections 58(1) and 71(1) of the Constitution. This
right may only be limited by rules and orders of parliament and not by any other
legislative provision. The Constitutional Court did not apply the factors in section
36(1)(a) to (e) for the purpose of its decision, but held that within the context of
section 36 the imitation was not “in terms of law” which sections 58(1) and 71(1) of
32
the Constitution require to be rules of parliament.
Protection of the administration of justice. The proper administration of justice is a lawful
purpose for the limitation of the right to freedom of expression, because it
reinforces the integrity of the judiciary and the rights to access to court and to fair
hearings. The exercising of freedom of the press has the potential to prejudice the
administration of justice by prejudging issues under judicial consideration, by
conducting trials through the media and by bringing improper pressure to bear on
________________________
30 Petro Props (Pty) Ltd v Barlow 2006 5 SA 160 (W) paras 66–74.
31 Democratic Alliance v African National Congress 2015 3 BCLR 298 (CC), 2015 2 SA 232 (CC) paras
46, 116, 127, 142.
32 Democratic Alliance v Speaker of the National Assembly 2016 5 BCLR 577 (CC), 2016 3 SA 487 (CC).
For a discussion of the case, see Rautenbach IM “Orde, agbarde lede, orde? Vryheid van spraak
en orde in wetgewende vergaderings” 2016 TSAR 807–822.
witnesses or judicial officers. A publication may only be banned for the protection of
the administration of justice if the prejudice that it may cause is demonstrable and
substantial and if the disadvantage of limiting the right outweighs the advantage of
33
the free exercise of the right. The Supreme Court of Appeal held that there was no
law of general application which authorised the prosecuting authorities to insist that
the contents of a publication must be disclosed to the prosecuting authorities before
its publication.34
Investigation of judges. A High Court held that the need for caution and
confidentiality during any preliminary investigation of a judge’s conduct by the
Judicial Service Commissioner to protect the judge from frivolous and unfounded
complaints, the judge’s privacy and to allow the judge to recognise and correct
mistakes, such considerations do not apply when the investigation progresses moves
beyond the preliminary stage.35
Divorce actions. The Constitutional Court invalidated section 12 of the Divorce Act 70
of 1979 which prohibited the publication of information that came to light during a
divorce action, including information which emerged during proceedings related to
the enforcement or variation of an order. The nature and extent of the limitation
was that it prohibited all information, even information in which the public has a
legitimate interest. The purpose of the limitation to protect the privacy and dignity
of those involved could be achieved in a less restrictive way. The less restrictive way
was incorporated by reading into the invalidation order: “Subject to authorization
granted by a court in exceptional circumstances, the publication of the identity of,
and any information that may reveal the identity of, any party or child in any divorce
proceedings before any court is prohibited.”36
Prior control. Prior control is a form of limitation of the right to freedom of
expression. The Constitutional Court invalidated section 16(2)(a) of the Films and
Production Act 65 of 1996 which introduced a system of administrative prior control
in respect of certain material.37 The disadvantages of prior control include that it
delays the flow of communication, that it limits the free choice to receive
information and that administrative control is more likely to occur than control
after publication, because the state is then relieved from a greater burden on
resources to investigate and prosecute offenders. Less restrictive, alternative means
in the form of interdicts were available to achieve the purpose.38 In a concurring
separate judgment, it was pointed out that the vagueness and overbreadth of the
________________________
540 (SCA) paras 12, 13, 19.
540 (SCA) para 25.
35 Mail and Guardian Ltd v Judicial Service Commission 2010 6 BCLR 615 (GSJ) paras 20, 21.
36 Johncom Media Investments Ltd v M 2009 8 BCLR 751 (CC), 2009 (4) SA 7 (CC) para 45. For an
analysis of this case, see Neethling J “The right to privacy and divorce trials” 2010 SALJ 230.
37 S 16(2)(a) provided: “Any person, except the publisher of a newspaper … who, for distribu-
tion or exhibition in the Republic creates, produces or advertises any publication that – (a)
contains sexual conduct which (i) violates or shows disrespect for the right to human dignity of
any person; (ii) degrades a person; or (iii) constitutes incitement to cause harm; … shall sub-
mit, in the prescribed manner, such publication for examination and classification to the
Board before such publication is distributed, exhibited, offered or advertised for distribution
of exhibition.”
paras 58, 59. 68–71.
classification would also render judicial prior restraint in the form interdicts
unconstitutional.39
Asylum applications. Section 21(5) of the Refugees Act 130 of 1998 which provided
that the confidentiality of asylum applications and the information contained
therein must be ensured at all times was invalidated. The limitation served an
important purpose, namely to encourage asylum seekers to disclose information
truthfully and protect them and their families in their country of origin from
possible dangers or threats to their lives and safety. However, the confidentiality
required in this statute was absolute. No exceptions were permitted, for example,
when the publication of the information would not endanger an asylum seeker or
when the information was already in the public domain. The legitimate purpose
40
could be achieved by less restrictive means.
Other matters that have been considered include the limitation of the right to the
41 42
protection of public morals and the rights of others, and the exclusion of
electronic media from investigations of the Public Protector.43
2 Assembly
2.1 Section 17 397
right) 399
2.1 Section 17
17 Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to
picket and to present petitions.

This right protects actions to assemble with others in order to achieve common
purposes.
44
The Constitutional Court has described the importance of the right as follows:
“The right to freedom of assembly is central to our constitutional democracy. It exists
primarily to give a voice to the powerless. This includes groups that do not have politi-
cal or economic power, and other vulnerable persons. It provides an outlet for their
frustrations. This right will, in many cases, be the only mechanism available to them to
express their legitimate concerns. Indeed, it is one of the principal means by which
ordinary people can meaningfully contribute to the constitutional objective of advanc-
ing human rights and freedoms. This is only too evident from the brutal denial of this
________________________
para 112.
40 Mail and Guardian Media Ltd v Chipu 2013 11 BCLR 1256 (CC) paras 54-55, 57, 93.
41 See the judgment of Mokgoro J in Case v Minister of Safety & Security, Curtis v Minister of Safety &
Security 1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC).
42 Prinsloo v RCP Media Ltd t/a Rapport 2003 4 SA 456 (T) 469.
43 Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO 2000 4 SA 973 (C); SABC v
Public Protector 2002 4 BCLR 340 (T).
44 South African Transport and Allied Workers Union v Garwas 2012 8 BCLR 840 (CC) para 61.
right and all the consequences flowing therefrom under apartheid. In assessing the
nature and importance of the right, we cannot therefore ignore its foundational rele-
vance to the exercise and achievement of all other rights.”
The Constitution does not prescribe the purposes of protected assemblies. The
purposes are not limited to the communication of ideas or the discussion of public
45
matters. The right is not only a form of the right of freedom of expression. Reli-
gious, sport and entertainment gatherings are protected even when the purposes of
such gatherings are often for other purposes than to form and express opinions. To
have fun is a permissible purpose for getting together.
The right protects a particular form of collective activity: there must at least be the
intention of the participants to get together and to remain together for some or
other form of collective action, albeit that the collective action consists only of the
enjoyment of a concert or soccer match. This means that the coincidental presence
of more than one person at, for example, the scene of an accident or in traffic con-
gestion is not a constitutionally protected assembly.
The purpose and nature of a particular assembly (for example, the number of
participants, or whether it is a public, private, closed, open air, organised or sponta-
neous assembly) may play a role in applying the general limitation clause to limita-
tions of the right, but are not relevant for defining “assemble” for the purposes of
the protective ambit of the right. The Constitution protects both private and public
46
assemblies.
The right to freedom of assembly protects all actions to organise, conduct, par-
ticipate in, and dissolve assemblies, demonstrations and pickets.
Demonstrations and pickets are manifestations of assemblies the purpose of which is
to articulate points of view publicly. In other systems, the right to demonstrate is,
therefore, often regarded as an incidence of the right to freedom of expression.
47
Usually the concept “picket” relates to actions in respect of labour relations. To the
extent that demonstrations and pickets are manifestations of assemblies, all the rules
that apply to assemblies apply also mutatis mutandis to demonstrations and pickets.
There may, however, be exceptions. In the case of a demonstration or picket by one
person, the requirement that an assembly must consist of more than one person
must be qualified or the demonstration or picket must be considered a form of free-
dom of expression.
The right to present petitions protects the interest to make direct submissions to
persons and institutions.
Although the use of arms and non-peaceful actions during assemblies could read-
ily have been dealt with in terms of the general limitation clause for the protection
of the public interest or the rights of others, the Constitution protects only peaceful
________________________
45 Contra United Greyhound Racing & Breeders Society v Vrystaat Dobbelraad 2003 2 SA 269 (O) 275.
46 The preamble to the Regulation of Gatherings Act 205 of 1993 refers only to the protection
and regulation of public gatherings. See also Acting Superintendent-General of Education of KwaZu-
lu-Natal v Ngubo 1996 3 BCLR 369 (N) 375I. Many “private” religious, sports and entertainment
gatherings and the meetings of voluntary associations will then be excluded. The definition of
assembly in ordinary legislation does not determine the constitutional meaning of the concept.
There are convincing reasons why the right to assemble in the Constitution should be limited
to public gatherings.
47 S 69 of the Labour Relations Act 66 of 1995 regulates pickets authorised by registered trade
unions to demonstrate peacefully in support of a protected strike or in opposition to a lock-
out, at any public place, but inside an employer’s premises only with the employer’s permis-
sion, which may not be withheld unreasonably.
48
and unarmed assemblies. An assembly will be non-peaceful if public and private
interests (the public order, persons and property) are violated or threatened to such
an extent that the limitation of the right would in any case have been justified in
terms of section 36. The same applies to the concept “unarmed”. The presence of
arms could be an indication of the violent nature of the assembly which, in turn,
could serve as a purpose for a limitation of the right. In this sense, the exclusion of
violent and armed assemblies from the protective ambit of the right does not pre-
clude the application of elements of the general limitation clause. In German law,
the requirement “unarmed” is considered in conjunction with “peaceful” – the pre-
sence of “arms” in the conventional sense (for example, guns and knuckle-dusters)
is a prima facie indication that those bearing them could use them for violent action.
However, at the same time, the state may prove that participants carrying instru-
ments not usually considered arms (for example, chairs, oranges, vuvuzelas and
knitting-pins) intend to use them in a violent way.49
Natural and juristic persons are bearers of the right.
Organising and conducting meetings and assemblies are indispensable for conduct-
ing the affairs of virtually all juristic persons such as, for example, commercial
enterprises, churches, or other voluntary associations. Both the nature of the right
and the nature of juristic persons are such that juristic persons are the bearers of the
right.
The right binds all state organs.
The duty of the state to protect the right manifests itself in all statutory and other
measures to regulate the conduct of assemblies, demonstrations and pickets. The
main instrument in this respect is the Regulation of Gatherings Act 205 of 1993 which
also limits aspects of the right.
The nature of the right is such that private persons can be bound by the right under
section 8(2).
All interferences with conduct which is protected by the right in section 17 must
comply with the general limitation clause in section 36. Apart from regulating and
giving effect to the right to freedom of assembly, the Regulation of Gatherings Act
50
205 of 1993 also limits the right.
The Constitutional Court confirmed the constitutionality of section 11(2) of the
Regulation of Gatherings Act 205 of 1993 which provides a limited defence for
organisers of a gathering who are liable for riot damage resulting from that gather-
ing in terms of section 11(1) of the Act. The organisers are liable unless they can
inter alia prove that they took all reasonable steps within their power to prevent the
act or omission in question. The court held that the effect of the provision was to
hold the organisers liable for riot damage on a wider basis than the basis provided
for under the law of delict; this amounts to a limitation of the right to freedom of
________________________
48 This approach is also followed in other bills of rights and international human rights instru-
ments.
49 Sachs M (ed) Grundgesetz (2003) 446–447.
50 For a useful overview of the Act, see Garvis v SATAWU 2010 6 SA 280 (WCC) paras 12–18.
assembly because it increases the costs of organising protest action and could deter
small organisations and organisers of very large gatherings from organising them. In
applying the general limitation clause to the limitation, the court held that the
purpose of the limitation was to ensure that the public could claim damage incurred
by destructive behaviour during assemblies; that the nature and extent of the limita-
tion does not negate the right, but subject its exercise to strict conditions and that
section 11(1) provides for the apportionment of damages amongst perpetrators;
that the limitation strikes an appropriate balance between the limitation and its
purpose and that it cannot be said that less restrictive means to limit the right are
available.51
3 Association
3.1 Section 18 400
3.4 Justification for non-compliance with the right (limitation of the right) 402
3.1 Section 18
18 Everyone has the right to freedom of association.

The right protects all actions aimed at the entering into and maintaining of
relationships with others.
One of the ways in which human beings express their humanity is through their
relations with others.
There are many, many forms in which people enter into and maintain relation-
ships with fellow human beings. They vary from personal relations between two
people, to relations in families and in all kinds of circles and societies. Whereas the
nature of a relationship and the purpose of entering into it may be taken into ac-
count when the limitation of the right is considered, the nature and purpose of
association are irrelevant to the definition of protected conduct and interests. The
right is also not merely a form of expression to communicate something. Further-
52
more, the right does not only protect “organised” associations. Section 18 of the
South African Constitution covers a wider field than article 9 of the German Consti-
tution which refers only to associations and corporations, including associations for
the improvement of working and economic conditions. Nothing in the South Afri-
can text indicates that “to associate” should be limited to organisations and their
activities. Had the South African constitution-makers wanted to follow the German
example, they would have used other words. The South African provision covers the
field which has been described in American literature as “a continuum from the
least protected form of association in commercial activities to the most protected
________________________
51 SATAWU v Garvas 2012 8 BCLR 840 (CC), 2013 1 SA 83 (CC) paras 56, 57, 67–83. For a
discussion of the judgment, see Rautenbach IM “The liability of organisers for damage caused
in the course of violent demonstrations as a limitation of the right to freedom of assembly”
2013 TSAR 151–164.
52 Dawood, Shalabi, Thomas v Minister of Home Affairs 2000 8 BCLR 837 (CC), 2000 3 SA 936 (CC)
para 30.
forms of association to engage in political or religious [activities] or for highly
53
personal reasons, such as family relations”. In the South African Bill of Rights, the
extent of the protection of this great variety of associations is determined by the
application of the general limitation clause and not by their inclusion or exclusion
“by definition” during the first stage of an inquiry.
The protective ambit of the right to freedom of association includes conduct in
respect of relationships not covered elsewhere in the Bill of Rights, for example,
within marriages, families and other forms of cohabitation. In both American and
German law, relations such as these are protected as privacy. In the USA this hap-
pens, because the Constitution does not contain an expressly formulated right to
freedom of association and, in Germany, because the right to freedom of association
is limited to the protection of organisations and their activities. These constructions
need not be applied in South Africa. Here the right to freedom of association also
protects the entering into and maintaining of intimate private relations and not only
associations whereas the right to privacy protects control over intrusion into the
54
exercise of the right and access to and use of information concerning the exercise.
However, in NCGLE v Minister of Justice, the Constitutional Court incorrectly stated
that “[p]rivacy recognises that we all have a right to a sphere of private intimacy and
55
autonomy which allows us to establish and nurture human relationships”. Likewise, in
Dawood, Shalabi, Thomas v Minister of Home Affairs, the Constitutional Court over-
looked the right to freedom of association when it stated that “it cannot be stated
that there is a more specific right that protects individuals who wish to enter into and
sustain permanent intimate relations than the right to dignity in section 10”.56 In both of
these judgments, the Constitutional Court ignored the core of what is being pro-
tected by the right to freedom of association. Under the influence of foreign law,
the court failed to recognise the full meaning of the variety of rights in the South
African Bill of Rights.
Most of the rights in the Bill of Rights may be protected and promoted more effi-
ciently by joint action ensuing from associating with others, for example, the right in
respect of religion, expression, political choices, trade, occupation and profession,
labour relations and property. The South African Bill of Rights protects this aspect
of all the other rights as a separate right. We have, in the words of the American
writer Tribe, “a system in which concerted effort itself is seen as entitled to inde-
pendent constitutional protection”.57
The right to associate includes the freedom not to associate and all direct or indi-
rect interferences with the right not to associate must comply with the requirements
for the limitation of the right.
The right to freedom of association is of particular importance to associations or
organisations. Everyone has the right, together with others, to form an organisation
(to decide on the time of forming it, the purpose, legal form, name, constitution
and seat), to join an organisation, to remain a member, and to participate in the
activities of an organisation. The right also protects the existence, functioning and
management of an organisation as such.58 In principle, an organisation may decide
________________________
53 Nowak JE and Rotunda RD Constitutional Law (1995) 1118.

55 1998 12 BCLR 1517 (CC), 1999 1 SA 6 (CC) para 32, emphasis added. See also paras 116–117.
56 2000 8 BCLR 837 (CC), 2000 3 SA 936 (CC) para 35, emphasis added.
57 Tribe L American Constitutional Law (1988) 1014. Emphasis by Tribe.
58 Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds 1997 8 BCLR 1066 (T) 1077.
how it functions, who its members are and when to take disciplinary measures
59
against them. Organisations have these rights regardless of whether they are offi-
60
cially recognised as juristic persons. In respect of their external actions, organisa-
tions may perform all actions in terms of rights which they are capable of exercising
and, in this respect, they are in the same position as any other bearer of a particular
right. In respect of their internal activities and their activities that have an effect
outside the organisation, organisations are bound by the rights of others as provided
for in section 8(2) of the Constitution.
Provisions in the Bill of Rights in respect of political parties, trade unions,
employers’ organisations and cultural, religious and language associations
61
contain guarantees in respect of specific types of association. These special
provisions protect manifestations of the general right of freedom of association.
Except as qualified by any of these specific provisions, section 18 applies to all these
organisations.
All natural persons are bearers of the right and the nature of the right is such that it
can also be exercised by juristic persons.
All organs of state are bound by the right.
The duty of the state to protect the right in the organisational field manifests itself
in all statutory and other measures to facilitate the forming and functioning of, for
example, different forms of business enterprises and other voluntary and non-
governmental organisations. However, to the extent that such regulatory measures
may limit the right, they must comply with the general limitation clause.
The nature of the right is such that it can be interfered with by private persons. Such
persons are, therefore, bound by the right for the purposes of section 8(2).
An organisation may limit the right of its members or prospective members to free-
dom of association, in which case such organisation’s freedom to organise its own
affairs could form part of the purpose of the limitation of the rights of the other
parties. In such a case, the general limitation clause must then be applied to decide
on the constitutionality of the limitation.
3.4 Justification for non-compliance of the right (limitation of the right)

All interferences with conduct that are protected by the right must comply with the
general limitation clause. Whenever interference with intimate associational behav-
iour is based on race, sex, gender, sexual orientation, religion, culture or language,
the matter is usually dealt with in terms of section 9 as unfair discrimination or other
62
forms of differentiating treatment. However, when the general limitation clause is
applied to the determine the justifiability of such differentiation, its nature and
________________________
59 In Taylor v Kurtstag 2005 7 BCLR 705 (W), 2005 1 SA 362 (W) para 46, it was stated that s 18
guarantees both an individual right to choose associates “and a group of individuals their right
to choose their associates”.
60 Although s 8(4) of the Constitution refers to juristic persons as bearers of rights, the Constitu-
tion does not describe fixed categories of bearers of rights. Organisations that are not juristic
persons may also be bearers. See ch 14 para 3.
61 Ss 19(1)(b), 23, 31(1)(b).
62 Ch 19 para 3.2.
effect on the right to freedom of association must be taken into account for the
63
purposes of section 36(1)(c).
Limitations of the right to freedom of association as it affects organisations involve
matters such as the prohibition of certain organisations, limitations on membership,
interference with such association’s internal affairs or any other form of regulation
and external control. When an association limits the rights of non-members in
exercising its own right to freedom of association (for example, by excluding certain
people in terms of its right to determine its own membership) such limitations must
be considered within the framework of the limitation clauses. In Forum of Black
Journalists v Katopodis, the Human Rights Commission held that no legitimate pur-
pose was served by the infringement of the dignity of people who are excluded from
membership and certain of the meetings of an association constituted for the ad-
vancement of the interests of Black journalists; similarly, since the exclusion was
based on race, it prima facie amounted to unfair discrimination for the purposes of
section 9(3) and in this case, the association was unable to rebut the presumption of
64
unfairness for the purposes of section 9(5). Similarly, the limitation of the rights of
its own members by an organisation must comply with the requirements for the
limitation of rights. In Ramakatsa v Magashule the Constitutional Court held that a
65
political party violated the political rights of some of its members.
When the individual rights of members of private organisations are limited by or
in terms of the internal rules of that organisation, the internal rules concerned are
not the “law of general application” to which section 36(1) refers. “Law of general
application” in section 36(1) refers to the rules of the general legal system and not
to internal rules of organisations.66 These internal rules are, for the purposes of
section 36, the limiting action of the organisation as a collective entity which must
be performed “in terms of” law of general application. The “law of general applica-
tion” in terms of which these actions are undertaken are the common-law, statutory
and constitutional authorisation (for example, the right to freedom of association in
section 18) to adopt and enforce their internal rules.
4 Political rights
4.1 Section 19 403
4.2 Political choices 404
4.3 Political parties 405
4.4 Public office 406
4.5 The right to vote and free and fair elections 406
4.1 Section 19
19(1) Every citizen is free to make political choices, which includes the right to –
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative
body established in terms of the Constitution.
________________________
63 Ch 19 para 3.2.
64 Forum of Black Journalist v Katopodis 2009 5 BCLR 510 (SAHRC) 520 523.
65 Ramakatsa v Magashule 2013 2 BCLR 202 (CC). See para 4.3 below.
(3) Every 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.
In various parts of Part 1 of the book, the political rights guaranteed in section 19
are discussed within the framework of the composition and functioning of various
67
constitutional institutions such as the national and provincial legislatures. This
paragraph summarises the position.
4.2 Political choices

The right to make political choices is a species of the right to freedom of religion,
thought, belief and opinion in section 15. Against the background of section 15, and
within the framework of the other rights guaranteed in section 19(1) (actions in
respect of political parties and to campaign for a political cause), the concept “to
make political choices” covers all actions to obtain information to make proper
68
political choices, all actions to entertain and give effect to the choices and to as-
semble and associate with others on these matters. Section 19(1) therefore guaran-
tees a general right in respect of political activities. Political activities in this
guarantee means activities to participate in formal democratic processes, that is,
activities related to participation in elections, appointment and functioning of insti-
69
tutions provided for in the Constitution and other legislation. In Pilane v Pilane, the
Constitutional Court made the following important statement on the interrelated-
ness of the rights to freedom of expression, assembly, association and political
activities: “It strikes me that the exercise of the right to freedom of expression can
be enhanced by group association. Similarly, associative rights can be heightened by
the freer transmissibility of a group’s identity and purpose, expressed through its
name, emblems and labels. These rights are interconnected and complementary.
Political participation, actuated by the lawful exercise of these rights, can and should
assist in ensuring accountability in all forms of leadership and in encouraging good
70
governance.”
Only citizens are bearers of the right. If the concept “political” were to be inter-
preted too broadly, so as to include all actions concerning the forming of opinions
on, and expressions, gatherings and association in respect of public matters, the
protective ambit of the rights to freedom of opinion, expression, assembly and
association of foreigners would be limited drastically. The last-mentioned rights are
guaranteed for “everyone”.
________________________
67 See eg ch 8 paras 2.3.2 – 2.3.6; ch 11 para 2.3.2.1; ch 12 para 2.2.2.

68 In Institute for Democracy in SA v African National Congress 2005 10 BCLR 995 (C), the court was
not convinced that information on the funding of political parties is substantially advantageous
to the making of political choices.
69 According to Nowak M Politische Grundrechte (1988) 10, 12–14 this is the most limited meaning
that can be ascribed to the concept of political rights from a historical and comparative per-
spective. A broader meaning would include all rights by means of which government actions
can otherwise be influenced and controlled, for example, freedom of expression, association,
assembly, demonstration and petition.
70 Pilane v Pilane 2013 4 BCLR 431 (CC) para 69. In this case the Constitutional Court set aside
an interdict which prohibited the leaders of a village in the Pilanesberg area to organise or
proceed with a meeting to propagate the secession of the village from the traditional commu-
nity of which the village formed part. The interdict was set aside because there was no compli-
ance with the common-law requirement for an interdict (paras 40, 48, 50).
4.3 Political parties

In Ramakatsa v Magashule the Constitutional Court emphasised the crucial role
which political parties play in our system of constitutional democracy. In this respect
the Court referred to multi-party democracy as a foundational value in section 1(d)
of the Constitution, the vital role of political parties in a system of proportional
representation and the public funding of political parties in recognition of the fact
71
that they are vehicles for facilitating democracy.
The rights to form political parties, to participate in the activities of, or recruit
members for, a political party in section 19(1) are aspects of the general right to
freedom of association in section 18.72 The rights in section 19(1) apply to instances
in which the general right to freedom of association is exercised for the purposes of
forming and running political parties. The rules that apply under section 18 to
individual action in respect of associations and its protection are applicable to
political parties.
Differential treatment on the ground of party-political affiliation is covered by the
right to equality. Section 197(3) of the Constitution provides that no employee of
the public service may be favoured or prejudiced because he or she supports a
particular political party or cause. Legislation which limits the rights of political
parties by regulating their functioning must comply with the general limitation
clause.
In Ramakatsa v Magashule, the Constitutional Court held that section 19(1) guar-
antees the freedom “to make political choices and once a choice on a political party
is made, the section safeguards a member’s participation in the activities of the party
concerned … It protects the exercise of the right not only against external interfer-
ences but also against interference arising from within the party”.73 Section 19 does not
prescribe how members of a political party should exercise their right to participate
in the activities of a policial party, it is left to policial parties to regulate such partici-
pation in their party constitutions. In this case members of the ANC challenged the
lawfulness of an ANC provincial elective conference. ANC members contended that
their right to participate in the activities of a political party in section 19(1)(c) was
infringed because they were excluded from branch meetings and the elective con-
ference. The Constitutional Court declared the elective conference unlawful and
74
invalid.
Examples of provisions that limit rights in respect of political parties are the re-
quirements in the Electoral Act 73 of 1998 that political parties may participate in an
election only if they subscribe to the electoral code and are registered with the
Electoral Commission and the provisions of the Public Funding of Political Parties
Act 103 of 1997 excluding the funding of political parties which are not yet repre-
75
sented. Legislation that imposes a duty on political parties to disclose funding
sources and a right of citizens to gain access to the records of such funding in order
to make informed political choices in elections, will also constitute limitations of the
________________________
71 Ramakatsa v Magashule 2013 2 BCLR 202 (CC) paras 65-68.

72 For a discussion of the meaning of the term “political party”, see Pretorius DM and Dyer L
“Freedom of expression and the statutory regulation of ‘political’ advertising in the broadcast
media” 2009 SALJ 213, 224–229.
73 Ramakatsa v Magashule 2013 2 BCLR 202 (CC) para 71. Emphasis added.
74 Ramakatsa v Magashule 2013 2 BCLR 202 (CC) paras 60, 71, 73, 133.
75 This restriction may be unconstitutional – see Malherbe EFJ “Is die Wet op die Openbare
Befondsing van Verteenwoordigende Politieke Partye, 1997, grondwetlik?” 1998 TSAR 575.
right of political parties to regulate their own functioning. There is no need that the
constitutional provisions themselves must impose duties and limitation in this re-
gard,76 because it may be done under the general limitation clause.
4.4 Public office

77
Qualifications required for the standing for and holding of elected public office
are limitations of the right to stand for public office and must comply with the
general limitation clause. This also applies to provisions disqualifying citizens from
becoming elected officials or from remaining members for the term for which they
were elected. However, qualifications and disqualifications contained in provisions
which formed part of the text of the Constitution at its commencement need not
comply with the general limitation clause. Qualifications contained in subsequent
constitutional amendments must either comply with the general limitation clause or
be adopted according to the procedure for the amendment of the Bill of Rights.
4.5 The right to vote in free and fair elections

Every adult citizen has the right to vote in elections for any legislative body estab-
lished in terms of the Constitution, and to do so in secret. Every citizen has the right
to free, fair and regular elections for any legislative body established in terms of the
Constitution. Read with the right to equality, no adult citizen may, in principle, be
excluded from the right to vote and all votes must, in principle, carry the same
weight. Furthermore, in principle, the right to vote must be exercised directly, and
the secrecy of the vote ensures that the vote is cast freely without any coercion.
Section 46(1) of the Constitution provides that legislation must provide for a com-
mon voters’ list and for a voting age of at least 18 years. The right to vote and the
right to free and fair elections cannot be exercised unless the state takes steps to
78
ensure that voters’ rolls are compiled and that the elections are held.
The initial failure of the Electoral Commission to enable prisoners to exercise
their right to register and to vote for the 1999 parliamentary election effectively
disenfranchised them. The Constitutional Court held that there was no “law of
general application” as required by section 36(1) authorising the Commission to
79
limit the right to vote in such a way. The court stated that “[m]any open and de-
mocratic societies impose voting disabilities on some categories of prisoners”, but
the matter was not raised before the court, and the court emphasised that its judg-
ment should not be understood to suggest “that Parliament is prevented from
80
disenfranchising certain categories of prisoners”.
In 2003, Parliament passed a law precluding convicted prisoners serving sentences
of imprisonment without the option of a fine from registering to vote or to vote in
elections during the period of their imprisonment. Un-sentenced prisoners and
prisoners incarcerated because of their failure to pay fines retained the right to
________________________
76 As stated in Institute for Democracy in SA v African National Congress 2005 10 BCLR 995 (C) para
47.
77 Eg, in ss 47, 62, 106, 158 of the Constitution. See in respect of members of parliament, ch 8
para 2.3.6.
(CC) para 18; Democratic Party v Minister of Home Affairs 1999 6 BCLR 607 (CC), 1999 3 SA 254
(CC).
81
register and to vote. The Constitutional Court held that these limitations of the
right to vote were unconstitutional, because the state failed to provide factual infor-
mation concerning its financial and logistical problems and sufficient information
about the reasons and detail concerning its policy of excluding a particular group of
prisoners in order to denounce crime.82
All other voter qualifications, such as, for example, those contained in section
8(2) of the Electoral Act 73 of 1998, and regulatory measures relating to the exercis-
ing of the vote during elections must comply with the general limitation clause.
Requirements for voter registration may, for example, amount to limiting the right
83
to vote. In New National Party of South Africa v Government of the RSA, the court con-
firmed the validity of the requirement of a bar-coded identity document to register
and vote in a general election. It held that the requirement did not infringe the
right to vote and did not consider its compliance with the general limitation clause.
Requirements concerning the payment of deposits in various electoral statutes limit
84
the right to vote and the right to participate in elections. In African Christian Democ-
ratic Party v The Electoral Commission the Constitutional Court held that the purpose
of such requirements is to ensure that the participation of political parties and
85
candidates in the elections is not frivolous. In Richter v Minister for Home Affairs the
Constitutional Court invalidated section 33(1)(e) of the Electoral Act 73 of 1998 and
the relevant regulations which precluded certain categories of certain citizens from
voting in national elections while they are abroad. The court declined to invalidate
86
the same restrictions in respect of provincial elections.
The court still maintained the position in New National Party of South Africa that
“reasonable” restrictions of the right to vote in measures that give effect to the right
are not factual limitations of the right. The court means that only provisions that
prevent a voter from voting despite the voter taking reasonable steps to do so consti-
tute an infringement of the right and only after this has been established does the
question of justifiability in terms of section 36 arise. In evaluating the reasonableness
of the restrictions the court took some of the factors in sections 36(1)(a) to (e) into
87
account.
The Constitutional Court identified the following fundamental elements of free
and fair elections:
(a) Every person who is entitled to vote should, if possible be registered to do so.
(b) No one who is not entitled to vote should be permitted to do so.
________________________
81 Electoral Laws Amendment Act 34 of 2003 which amended the Electoral Act 73 of 1998.
82 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders
(NICRO) 2004 5 BCLR 445 (CC), 2005 3 SA 280 (CC) paras 49, 51, 66. The minority held that
the constitutionality of the provisions could, in principle, be sustained – paras 108 ff.
83 See, however, New National Party of South Africa v Government of the RSA 1999 5 BCLR 489 (CC),
1999 3 SA 191 (CC) para 15, where the court incorrectly held that voter registration was a con-
stitutional imperative and not a limitation of the right.
(CC).
85 African Christian Democratic Party v The Electoral Commission 2006 5 BCLR 579 (CC), 2006 3 SA 47
(CC).
86 Richter v Minister for Home Affairs 2009 5 BCLR 448 (CC), 2009 (3) SA 615 (CC); for a discussion
of the judgment see Malherbe EFJ “Algemene stemreg dalk steeds nie algemeen genoeg nie”
2010 TSAR 152.
87 Richter v Minister for Home Affairs 2009 5 BCLR 448 (CC), 2009 3 SA 615 (CC) paras 58, 68.
(c) For elections with a territorial component, as in the case of municipal wards
where candidates are elected directly, the registration of voters must be such
that only voters in a particular ward are registered and permitted to vote.
(d) Candidates may not be prejudiced by a method of objecting to the voters’ roll
88
which suits only large and well-resourced political groupings.
5 Citizenship
5.1 Section 20 408
5.2 The right not to be deprived of citizenship 408
5.1 Section 20
20 No citizen may be deprived of citizenship.
The right is also discussed in chapter 4 paragraph 2(b).
5.2 The right not to be deprived of citizenship

This right protects citizens’ interest in the retention of their status as citizens. Only
citizens are bearers of the right. Juristic persons cannot be bearers of the right. The
nature of the right is such that only the state is bound by the right. The Constitution
does not guarantee a right to diplomatic protection to citizens when abroad, but a
citizen has a right to request the government for protection against the actions of a
foreign state which are wrongful under international law. Although the government
has a broad discretion on when and how to provide protection, it must consider
89
requests and must deal with them rationally and in good faith.
Depriving a citizen of citizenship must comply with the general limitation clause.
Sections 7 to 9 of the South African Citizenship Act 88 of 1995 regulate the loss of
citizenship. The deprival of citizenship is discussed in chapter 4 paragraph 4 of this
90
book. Within the framework of the Bill of Rights, deprivation of citizenship means
that the individuals concerned would no longer be the bearers of the rights of which
only citizens are the bearers, namely the rights to vote, to free, fair and regular
elections, to stand for public office and, if elected, to hold office, to enter and to
remain and reside anywhere in the Republic, to a passport, and to choose and to
practice a trade, occupation or profession freely.
________________________
88 Kham v Electoral Commission 2016 2 BCLR 157 (CC), 2016 2 SA 338 (CC) paras 34, 54.
89 Kaunda v President of the RSA 2004 10 BCLR 1009 (CC), 2005 4 SA 235 (CC) para 45; Govern-
ment of the RSA v Von Abo 2011 5 SA 262 (SCA) para 22.
90 See ch 4 para 4 above.
Chapter 24
Trade, occupation, profession
Labour – Environment
Property
1 Trade, occupation, profession 409

2 Labour 414
3 Environment 418
4 Property 420
1 Trade, occupation, profession

1.1 Section 22 409
1.2 Protected conduct and interests and bearers of the right 409
right) 411
1.1 Section 22
22 Every citizen has the right to choose their trade, occupation or profession freely.
The practice of a trade, occupation of profession may be regulated by law.
1.2 Protected conduct and interests and bearers of the right

This right protects all activities by means of which a livelihood is pursued.
1
The Constitutional Court described the right as “one’s right to earn a living”. It
added that one’s work is part of one’s identity and is constitutive of one’s dignity.
This statement applies to all other rights. The exercise of any other right forms part
of one’s identity. However, it is important to note that the right to human dignity
and the right to choose and exercise trade, occupation or profession do not always
overlap. It does not make sense to assume that whenever there is a limitation of the
right to occupational freedom there is also an infringement of the right to human
dignity, but then to apply a weak rational relationship test to the limitation because
the regulation of economic activities is involved. Such a result undermines the
importance of the right to human dignity. There may be many instances in which
the limitation of the right in section 22 does not amount to an infringement of the
right to human dignity in the sense that the limitation disparages the humanity of
the bearer of the right. In such instances, tests weaker than strict scrutiny may in-
deed be appropriate.
________________________
1 Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529 (CC), 2006 3 SA 247 (CC)
paras 58, 59.
409
The right protects a particular aspect of one’s free exercise of other rights, namely
to earn something by exercising, for example, one’s rights to freedom of expression,
association or movement, the right to property and the right to stand for public
office and, if elected, to hold office. If the Bill of Rights did not guarantee a separate
right in this regard, the other rights could have been interpreted to cover the eco-
nomic activities to earn a living by exercising them.
The right protects both the freedom to choose and the freedom to carry on a
2
trade, occupation or profession. The second part of section 22 refers expressly to
the “practice” of a trade, occupation of profession. The right to choose makes little
sense if the carrying on of the chosen career may be prohibited or interfered with
arbitrarily. The description in the definition of a right of particular action such as
“practice of a trade” implies clearly that such action is constitutionally protected and
that to perform it is a constitutional right. The reluctance by the Constitutional
Court to call the freedom to practice a trade, occupation and profession a right
protected by section 22 and its statement that interferences with such practices “is
3
not a limitation of section 22” are incorrect.
4
It has also been held that only “legitimate” actions are being protected. This is an ir-
rational restriction. Rules of law that prohibit certain actions relating to a trade, oc-
cupation or profession (that is, making them illegal) constitute limitation of the
5
actions protected and must comply with the limitation requirements.
Only citizens are bearers of the right.
Although foreigners are not the bearers of the right in section 22, the Supreme
Court of Appeal held in Minister of Home Affairs v Watchenuka that foreigners’ right to
human dignity may be infringed when a prohibition on employment restricts their
“ability to live without positive humiliation and degradation”.6
Because only citizens may be bearers of the right, it is understood that juristic
persons are not bearers of the right.
The economic activities of juristic persons are covered by the other rights of which
7
they are the bearers, for example their rights to property and freedom of association.
________________________
paras 62–66; South African Diamond Producers Organisation v Minister of Minerals and Energy 2017
10 BCLR 1303 (CC), 2017 6 SA 331 (CC) para 65.
3 South African Diamond Producers Organisation v Minister of Minerals and Energy 2017 10 BCLR
1303 (CC), 2017 6 SA 331 (CC) para 65. See also Mukadam v Pioneer Foods 2013 2 SA 254 (SCA)
para 8 (“For once having entered the trade, profession or occupation, I find no basis for find-
ing that s 22 also guarantees the outcome of having done so”); Rösemann v General Council of the
Bar of SA 2004 1 SA 568 (SCA) para 30 (“The appellant has the right to become an attorney or
an advocate but he has no right to redefine the limits of either profession. He cannot com-
plain that he is not being permitted the free exercise of his right if he is unwilling to practice
within the acknowledged scope of the profession.”); Van Rensburg v SA Post Office Ltd 1998 10
BCLR 1307 (E) 1322; City of Cape Town v AD Outpost (Pty) Ltd 2000 2 BCLR 130 (C) 142; and De
Vos W “Opt-in class action for damages vindicated by Constitutional Court” 2013 TSAR 757,
759 who only refers to the meaning of “choose” and does not take the reference to “practice”
into account
Machaka v Law Society of the Transvaal 1998 4 SA 413 (T) in respect of s 26 of the Interim Con-
stitution.
5 See Soundprop 1239 CC t/a “777 Casino” v Minister of Safety and Security 1996 9 BCLR 1177 (C)
1181E, 1996 4 SA 1086 (C) 1091B.
6 Minister of Home Affairs v Watchenuka 2004 2 BCLR 120 (SCA), 2004 4 SA 326 (SCA) para 33.
7 City of Cape Town v AD Outpost (Pty) Ltd 2000 2 BCLR 130 (C) 142–144.
Chapter 24 Trade, occupation, profession – Labour – Environment – Property 411
All organs of state are bound by the right, and the nature of the right is such that it is
capable of binding private persons, for example, in contracts in restraint of trade.8
The duties of those persons and institutions bound by the right require that they do
not interfere with either the choice or the practice of a trade, occupation or profes-
9
sion. The state must respect, protect, promote and fulfil the right.
The right to choose and practice a trade occupation and profession is factually
limited when any law or action affects the action and interests protected by the right.
When the choice of a trade, occupation or profession is affected, the limitation must
10
comply with the general limitation clause in section 36(1) of the Constitution, and,
in principle, that should also be the case when the practice of the trade, occupation
of profession is affected.
The Constitutional Court held that the right to choose is factually limited by provisions
that prohibit certain persons from entering a specific trade, occupation or profes-
sion through licensing or by making the practice of that trade, occupation or profes-
sion so undesirable, difficult or unprofitable that the choice to enter into it is in fact
limited. Limitations of the right to choose a profession must comply with the general
11
limitation clause in section 36 of the Constitution.
The Constitutional Court held that the right to practice is not limited by law and
actions that regulate the exercise of a trade, occupation or profession.12 The court
held that because the right is not limited, the general limitation clause can therefore
not be applied to such law and actions, but that measures like these which do not
limit rights must be rationally connected to a government purpose as part of a
13
general rule of law principle in section 1 of the Constitution.
There are two mistakes in the court’s reasoning and conclusion in respect of the
limitation of the right to practice a trade, occupation or profession.
________________________

paras 68–72.
1303 (CC), 2017 6 SA 331 (CC) paras 65, 68.
12 In Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529 (CC), 2006 3 SA 247
(CC) the court said that the requirement that medicines be compounded and dispensed from
licensed premises affects the conduct of a medical practitioner and not the decision to become
a medical practitioner and that the requirement “merely regulates in the sense of facilitating
the proper exercise of the right to practice a profession . . . [i]t does not limit the right” (para 94;
emphasis added). See also South African Diamond Producers Organisation v Minister of Minerals
and Energy 2017 10 BCLR 1303 (CC), 2017 6 SA 331 (CC) para 65.
paras 74–75; South African Diamond Producers Organisation v Minister of Minerals and Energy 2017
10 BCLR 1303 (CC), 2017 6 SA 331 (CC) para 65. In both cases the court referred to (a) S v
Lawrence, Negal, Solberg 1997 10 BCLR 1384 (CC), 1997 4 SA 1176 (CC) para 41 in which the
court interpreted s 26(2) of the Interim Constitution (despite the fact that the wording of s
26(2) differs completely from the wording of s 22 of the final Constitution), and (b) New Na-
tional Party of SA v Government of the RSA 1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC) where the
court started with its approach that regulatory measures do not limit rights. For a discussion of
the New National Party case, see Rautenbach IM “Die beperking van stemreg” 2000 TSAR 552.
(a) The court’s statements that regulatory matters cannot limit rights is clearly
wrong from a practical point of view. Of course regulatory restrictions on how a
trade, occupation and profession must be practiced factually limit the freedom of
action of the bearers of the right to run their businesses, and such limitations must
comply with the general limitation clause to be constitutional. The second sentence
of section 22 cannot possibly mean that the right to practise a trade, occupation or
14
profession may be limited by law without compliance with any other equirements.
The court clearly realised that this is unacceptable and that is why it added the rule-
of-law rationality requirement.
(b) In developing the theme that measures that do not limit rights must neverthe-
less comply with a rule-of-law rationality test, the court lost sight of the fact that a
15
rational relationship test forms part and parcel of the general limitation clause.
Whatever rationality elements may be contained in the rule of law as a foundation
value in section 1 is being given effect to in the general limitation clause when rights
are limited. Limitations of the right to practice a trade, occupation or profession
must be dealt with by applying the general limitation clause and not in terms of an
approach that regulation does not limit the right and that a rationality rule-of-law
test must be applied. The same conclusion can be reached by recognising that the
regulation in question does have an inhibiting effect on the practice of dispensing
medicine, as explained above, but that the limitation need only comply with the
rational relationship test within the framework of the general limitation clause.
When a need exists to afford a legislature a wide discretion to regulate and limit
economic activities in general or in particular fields, it is not necessary to abandon
the application of the general limitation clause. If a court feels that it should inter-
fere with the state’s regulation of economic activities as little as possible because
16
state interference serve compelling purposes, it could apply the general limitation
clause by concentrating mainly on the existence of a rational relationship between
17
the limitation and its purpose. And if a court feels that it should interfere with the
state’s regulation of economic purposes as much as possible because state interfer-
ence limits the right in section 22 unduly, it could apply a stricter test than the
rational relationship test within the framework of the general limitation clause.
However, a rigid approach according to which only the rational relationship test
must be applied should not be followed. The nature and extent of economic
________________________
14 Such an interpretation would be in conflict with constitutional principles IV and VII in Sched-
ule 4 of the Interim Constitution; the Constitutional Court would not have been able to certify
it. On the reasons for the inclusion of the second sentence of s 22, see Rautenbach IM “The
Right to Choose and Practice a Trade, Occupation or Profession” 2005 TSAR 861.
15 See ch 16 para 2.3.2(d). See Law Society of South Africa v Minister of Transport 2011 2 BCLR 150
(CC), 2011 1 SA 400 (CC) para 37 where the court stated: “It is significant that one of the rele-
vant factors listed in section 36 is the ‘relation between the limitation and its purpose’. The re-
quirement of rationality is indeed a logical part of the proportionality test. It is self-evident that
a measure which is irrational could hardly pass muster as reasonable and justifiable for the
purposes of restricting a fundamental right.”
16 S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC), 1997 4 SA 1176 (CC) para 42.
17 See Jordan v S 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) para 26. This was also the posi-
tion in respect of s 26 of the Interim Constitution. S 26 was considered in Ynuico Ltd v Minister
of Trade and Industry 1995 11 BCLR 1453 (T); Knox D’Arcy Ltd v Shaw 1995 12 BCLR 1702 (W);
Kotze en Genis (Edms) Bpk v Potgieter 1995 3 BCLR 349 (C), 1995 3 SA 783 (C); Waltons Stationery
Co (Edms) Bpk v Fourie 1994 1 BCLR 50 (O), 1994 4 SA 507 (O); Directory Advertising Cost Cutters
v Minister for Posts, Telecommunications and Broadcasting 1996 3 SA 800 (T); Reitzer Pharmaceuticals
(Pty) Ltd v Registrar of Medicines 1998 9 BCLR 1113 (T), 1998 4 SA 660 (T).
regulatory measures may differ considerably. Depending on the seriousness of the
consequences, greater weight may be attached to the importance of the purpose and
18
the employment of less restrictive alternatives. Furthermore, even when a regula-
tion affects choice only, its impact, in a particular case, may be so slight, or the
purpose of the limitation may be so important, that the existence of a rational
relationship between the purpose and the limitation may be considered a satisfac-
tory justification for the limitation. At the same time, the impact of a regulation that
only affects practice may be so severe, or the purpose of the limitation so unimpor-
tant, that much greater justification in terms of the proportionality between the
limitation and its purpose is required than the mere existence of a rational relation-
ship test.
One of the parties to a contract in restraint of trade agrees to the limitation of her
or his right to freedom of trade, occupation and profession. In principle, this limita-
19
tion must comply with the general limitation clause and must be dealt with within
the framework of the limitation of rights by contractual clauses. When the purpose
of the limitation is considered to be the exercise of the freedom of contract of both
parties, the weighing would involve the prejudice to one of the parties and the
maintaining of the principle of pacta sunt servanda in the public interest. However,
the benefits which one of the parties would enjoy if the contract is enforced consti-
tute the real purpose of the transaction viewed from that party’s point of view. Those
benefits must be weighed against the prejudice that the other party would suffer if
the contract is cancelled in which case her purpose for concluding the contract
would disappear. This implies that the issues to be considered in determining
20
whether a restraint is reasonable or unreasonable, as stated in Basson v Chilwan,
have to be reconciled with the requirements for the limitation of rights in section
36(1). This was done by the Supreme Court of Appeal in Reddy v Siemens Telecommu-
nications (Pty) Ltd when the court pointed out that an agreement in restraint of trade
is concluded pursuant to “law of general application”, namely the provisions of the
law of contract which allows for contractual freedom and the conclusion of con-
tracts, and that the considerations in Basson v Chilwan are covered by the factors in
21
section 36(1)(a) to (d). The factor of less restrictive means to achieve the purpose
of the limitation was added to the Basson v Chilwan criteria.22
In several high court judgments, the possibility was referred to that the common-
law rule that in court cases involving the enforcement of contracts in restraint of
________________________
18 See Ex parte Ndabangaye 2004 4 BCLR 378 (C).

19 Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA) para 12; Coetzee v Comotis 2001
1 SA 1254 (C) 1273. See also Dickinson Holdings Group (Pty) Ltd v Du Plessis 2007 6 BCLR 671
(D) 682.
20 Basson v Chilwan 1993 3 SA 742 (A) 767 referred to the interest that deserves protection after
termination of the contract, the existence of a threat to that interest, the weight of that interest
compared to the interest of the other party not to be inactive and unproductive, and public
policy considerations apart from the interests of the parties to the contract.
21 Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA) para 7. See also Dickinson
Holdings Group (Pty) Ltd v Du Plessis 2007 6 BCLR 671 (D) 684: “[A] clause that restrains an in-
dividual’s trade should be clearly structured and should be such that its content protects what
does exist as a protectable interest that needs protection for trade to be conducted freely. A
restraint clause that is excessively protective, all encompassing, couched in terms that are too
far-reaching and have seamless bounds offends against public policy and is not consistent with
the Constitution.”
22 Kwik Kopy (SA) (Pty) Ltd v Van Haarlem 1999 1 SA 472 (W) 484; Reddy v Siemens Telecommunica-
tions (Pty) Ltd 2007 2 SA 486 (SCA) para 17.
trade, the onus rests on the party wishing to show that the restraint should not be
23
enforced, must be adapted in such a way that the party who wishes to enforce the
contract, needs to show that the limitation complies with the provisions of the
general limitation clause in section 36.24 In Reddy v Siemens Telecommunications (Pty)
Ltd, the Supreme Court of Appeal refrained from giving a decision on the matter.25
The right to freedom to choose and practice a trade, occupation or profession
26
may be limited by rules that protect “competition as being in the public welfare”.
2 Labour
2.1 Section 23 414
2.2 Fair labour practices 415
2.3 Individual rights in respect of trade union and employers’
organisations 416
2.4 Rights of trade unions and employers’ organisations 417
2.1 Section 23
23(1) Everyone has to the right to fair labour practices.
(2) Every worker has the right – (a) to form and join a trade union; (b) to partici-
pate in the activities and programmes of a trade union; and (c) to strike.
(3) Every employer has the right – (a) to form and join an employers’ organisation;
and (b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right – (a) to de-
termine its own administration, programmes and activities; (b) to organise; and (c) to
form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to en-
gage in collective bargaining. National legislation may be enacted to regulate collec-
tive bargaining. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
(6) National legislation may recognise union security arrangements contained in
collective agreements. To the extent that legislation may limit a right in this Chapter,
the limitation must comply with section 36(1).
Section 23 of the Constitution protects various interests and conduct within the
framework of employment relations. As far as bearers of the rights in section 23 are
concerned, the Constitution does not distinguish between workers, employers and
trade unions depending on the nature of their work or the industry in which they
27
function. In principle, they are all in the same position and any differentiation
between them must comply with the limitation requirements of the rights concern-
ing labour relations and the right to equality.
________________________
23 Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 4 SA 874 (A).
24 Eg, in Canon KwaZulu-Natal (Pty) Ltd t/a Canon Office Automation v Booth 2004 1 BCLR 39 (N),
2005 3 SA 205 (N); Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain 1997 10 BCLR
1443 (SE), 2001 2 SA 853 (SE).
25 Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA) para 14.
26 In Phumelela Gaming and Leisure Ltd v Gründling 2006 8 BCLR 883 (CC) para 36 the Constitu-
tional Court explained that although the Bill of Rights does not expressly refer to competition
principles “the right to freedom of trade, enshrined in section 22 of the Constitution is, in my
view, consistent with a competitive regime in matters of trade and the recognition of the pro-
tection of competition as being in the public welfare”.
27 Minister of Defence v SANDU; Minister of Defence v SANDU 2007 9 BCLR 971 (SCA) para 5.
2.2 Fair labour practices

Everyone has the right to fair labour practices
(a) Everybody is a bearer of this right and “everybody” includes natural and juristic persons.28
According to the Labour Appeal Court, section 23 protects the dignity of those in
employment relationships and not necessarily only those who are parties to a valid
and enforceable contract of employment:
“In the circumstances, where a sex worker forms part of a vulnerable class by the na-
ture of the work that she performs and the position that she holds and she is subject to
potential exploitation, abuse and assaults on her dignity, there is, on the basis of the
finding in this judgment, no principled reason by which she should not be entitled to
some constitutional protection designed to protect her dignity and which protection
29
by extension has now been operationalised in the [Labour Relations Act].”
(b) The purpose of the right is to ensure that the relationship between a worker and an em-
ployer is fair to both.30
31
(c) The right not to be dismissed unfairly is essential to the right to fair labour practices. In
reviewing dismissal disputes under the Labour Relations Act 66 of 1995, section 23
of the Constitution requires commissioners of the Commission for Conciliation,
Mediation and Arbitration to act as impartial adjudicators which means that the
fairness of a dismissal may not be approached only from the perspective of employ-
32
ers, but that all the circumstances must be considered.
(d) The arbitration functions of commissioners of the Commission for Conciliation, Mediation
and Arbitration are administrative functions and must comply with the right to just adminis-
trative action in section 33 of the Constitution. However, in respect of the resolving of
labour disputes, the Labour Relations Act and not the Promotion of Just Administra-
tive Action Act 3 of 2000 is the legislation that gives effect to the right contained in
section 33 of the Constitution.33 This implies that the standard and grounds of
review set by section 145 of the Labour Relations Act must comply with section 33 of
the Constitution and “be read to ensure that administrative action by the [Commis-
34
sion] is lawful, reasonable and procedurally fair”. In assigning a meaning that
complies with the constitutional reasonableness requirement in section 6(2)(h) of
the Promotion of Administrative Justice Act, the Constitutional Court held in Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs that administrative action must
be action that a reasonable decision-maker could reach and that this in turn means
that the decision must reasonably result in the achievement of the purpose for
which the action is exercised, that it must be reasonably supported by the facts and
35
that it must be reasonable in light of the reasons given for it. To the extent that the
Constitutional Court has thus given meaning to the constitutional reasonableness
requirement, it is submitted that the provisions of section 145 in the Labour
________________________
28 NEHAWU v University of Cape Town 2003 2 BCLR 154 (CC), 2003 3 SA 1 (CC) paras 37–39.
29 Kylie v CCMA 2010 10 BCLR 1029 (LAC) para 44.
30 NEHAWU v University of Cape Town 2003 2 BCLR 154 (CC), 2003 3 SA 1 para 42.
31 NEHAWU v University of Cape Town 2003 2 BCLR 154 (CC), 2003 3 SA 1 para 42.
32 Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC), 2008 2 SA 24 (CC) paras 61, 79,
overruling Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Me-
diation and Arbitration 2006 11 BCLR 1021 (SCA).
33 Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC), 2008 2 SA 24 (CC) paras 88, 91,
94, 104.
34 Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC), 2008 2 SA 24 (CC) para 105.
35 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 7 BCLR 687 (CC), 2004 4 SA
490 (CC) paras 44, 48.
Relations Act must be interpreted to include these requirements in order to comply
with the provisions of section 33 of the Constitution.
(e) The right to representation in grievance and disciplinary proceedings forms part of the
right to fair labour practices and exclusion must comply with the requirements for the limitation
36
of the right. The power of the Minister of Defence to appoint a military arbitration
board did not result in a forum that was independent and impartial in the eyes of
other parties to the dispute and unjustifiably limited the right to fair labour prac-
tices and the right to have justiciable disputes resolved by courts or other independ-
37
ent tribunals in section 34 of the Constitution.
2.3 Individual rights in respect of trade union and employers’ organisations

(a) Every worker has the right to form, join and participate in the activities of a
trade union, and to strike.38
The term “worker” in section 23 includes all employees not covered by the Labour
39
Relations Act 66 of 1995.
In respect of membership and participation in the activities of trade unions, the Consti-
tutional Court held that members of the permanent force of the South African
National Defence Force are bearers of this right and the court invalidated a statutory
prohibition on members of the permanent force to become members of a trade
40
union. The right to form and join a trade union and the right of trade unions to
organise give specific content in labour relations to the general right to freedom of
association in section 18 of the Constitution.41 The right to participate in the activi-
ties of trade unions also involves the exercising of the rights to freedom of expres-
sion and assembly within the context of trade relations. The Constitutional Court
invalidated a regulation which limited the right to freedom of expression of mem-
bers of the permanent force at assemblies, demonstrations and pickets when they
related to acts of private protest which could not cause actual or potential prejudice
42
to good order and military discipline. The Constitutional Court held that a prohi-
bition of participation in the activities of a military trade union while participating in
a military operation is a justifiable limitation of the right to participate in the activi-
43
ties of a trade union.
In respect of the importance of the right to strike, the Constitutional Court stated
that the right to strike protects the dignity of workers who may not be treated as
coerced employees in our constitutional order, that industrial action enables work-
ers to assert bargaining power in labour relations and that it is an important compo-
44
nent of a collective bargaining system. The Constitutional Court also held that the
right to strike is based on the recognition of disparities in the social and economic
power held by employers and employees and that the right to strike is an aspect of
the right to freedom of association and that the right enhances other social and
________________________
36 SANDU v Minister of Defence 2007 8 BCLR 863 (CC), 2007 5 SA 400 (CC) paras 89–95.
38 On the meaning of “worker” in s 23, see SANDU v Minister of Defence 1999 6 BCLR 615 (CC),
1994 4 SA 459 (CC) paras 20–21.
39 Murray v Minister of Defence 2008 11 BCLR 1175 (SCA), 2009 3 SA 130 (SCA) para 5.
40 SANDU v Minister of Defence 2007 9 BCLR 971 (SCA) para 30.
41 NUMSA v Bader Prop (Pty) Ltd 2003 2 BCLR 182 (CC), 2003 3 SA 513 (CC) para 34.
44 NUMSA v Bader Prop (Pty) Ltd 2003 2 BCLR 182 (CC), 2003 3 SA 513 (CC) para 13.
45 46
political rights. The right to strike is not an absolute right. The court held in
SATAWU v Moloto that a procedural precondition such as a notice requirement
factually limits the right to strike and that it could be unconstitutional if it does not
47
comply with the requirements of the general or specific limitation clauses. In
Association of Mineworkers and Construction Union v Chamber of Mines of South Africa the
Constitutional Court considered the constitutionality of the recognition in section
23(1)(d) of the Labour Relations Act 66 of 1995 of a collective labour agreement
that binds employees who are not members of a trade union who concludes that
agreement, not to strike.48 The court held that the provision authorises the factual
limitation of the right, but that the limitation was justified because it is not far-
reaching and it was narrowly tailored to serve the purpose of the limitation, namely
49
orderly collective bargaining.
(b) Every employer has the right to form, join, and to participate in the activities of
an employers’ organisation.
To the extent that an employer may be a juristic person, the provision confirms that
juristic persons are bearers of the right to freedom of association in section 18 of the
Bill of Rights.
2.4 Rights of trade unions and employers’ organisations

(a) Every trade union and employers’ organisation has the right to determine its
own administration, programmes and activities, to organise, and to join and form a
federation.
50
Section 23(4)(a) protects the organisational autonomy of trade unions and em-
ployers’ organisations. The right to freedom of association in section 18 of the
Constitution includes, subject to the possibility of limitation in terms of the general
limitation clause, the right of all associations to decide how they administer them-
selves and how they promote the interests of their members. Section 23(4)(a)
particularises the general right to freedom of association in section 18 in respect of
labour relations.
The power of associations includes the right to conclude contracts. The Constitu-
tional Court held that a provision in a labour union’s own constitution that the
union may provide legal assistance to its members or officials where it deems it in
the interest of justice to do so, empowered the union to conclude contracts to
provide the legal assistance. The union could not use its constitutional right to
determine its own administration as an excuse not to comply with its contractual
51
obligations to provide legal assistance to its members.
________________________
45 SATAWU v Moloto 2012 11 BCLR 1177 (CC), 2012 6 SA 249 (CC) paras 57, 58. A right to lock
out was recognised in the Interim Constitution, but it was omitted from the final Constitution.
In In re Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744
(CC) para 66 the court stated that the right of employers to lock out workers does not always
and necessarily amount to the equivalent of the right of workers to strike.
46 South African Police Service v Police and Prison Civil Rights Union 2011 9 BLCR 992 (CC) para 19.
47 SATAWU v Moloto 2012 11 BCLR 1177 (CC), 2012 6 SA 249 (CC) with reference to s 64(1)(b)
of the Labour Relations Act 66 of 1995 which requires at least 48 hours’ notice of the com-
mencement of a proposed strike. The court did not consider the constitutionality of the provi-
sion because it was not challenged before the court.
48 AMCU v Chamber of Mines 2017 6 BCLR 700 (CC), 2017 3 SA 242 (CC).
49 AMCU v Chamber of Mines 2017 6 BCLR 700 (CC), 2017 3 SA 242 (CC) paras 17, 58.
50 Food and Allied Workers Union v Ngcobo 2013 12 BCLR 1343 (CC), 2014 1 SA 32 (CC) para 28.
51 Food and Allied Workers Union v Ngcobo 2013 12 BCLR 1343 (CC), 2014 1 SA 32 (CC) paras 34, 39.
The Constitutional Court held that a regulation that prohibited a military trade
union to affiliate or associate with other trade unions is a justifiable limitation of the
right in section 23(4)(d) because section 199(7) of the Constitution provides that
security services may not act in a politically partisan manner and because it is a well-
known fact that “many unions in South Africa have express political affiliations
which would render affiliation to or association with those unions suspect for the
52
same reason that affiliation with a political party would be constitutionally suspect”.
The Constitutional Court also held that the prohibition of consultation and liaison
of military trade unions with its members while such members participate in a
military operation constitutes a justifiable limitation of the right of a union to de-
termine its own programme and activities – union activities during military opera-
tions could seriously impede the defence force from performing effectively its
53
constitutional obligation to ensure the safety of the Republic.
(b) Every trade union, employers’ organisation and employer has the right to
54
engage in collective bargaining.
National legislation may be enacted to regulate the right to collective bargaining
and to recognise union security arrangements contained in collective agreements.
The right to collective bargaining in this guarantee does not include the right of a
55
union to bargain with a legislator on the content of law. Where such legislation has
been enacted, “a litigant may not rely directly on the Constitution without
56
challenging that legislation as falling short of the constitutional standard”. To the
extent that such legislation may limit rights in the Bill of Rights, it must comply with
3 Environment
3.1 Section 24 418
3.2 Environmental rights 419
3.1 Section 24
24 Everyone has the right –
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future genera-
tions, through reasonable measures that – (i) prevent pollution and ecological
degradation; (ii) promote conservation; and (iii) secure ecologically sustainable
development and use of natural resources while promoting justifiable economic
and social development.
________________________
52 SANDU v Minister of Defence 2007 8 BCLR 863 (CC), 2007 5 SA 400 (CC) para 87.
54 In In re Certification of the Constitution of the RSA, 1996 1996 10 BCLR 1253 (CC), 1996 4 SA 744
(CC) para 69 the Constitutional Court refused to certify s 23 of the text approved by the con-
stitutional assembly on 8 May 1996, because it did not provide for the right of individual em-
ployers to bargain collectively – the omission was inconsistent with Constitutional Principle
XXVIII. Both parties to the relationship are bound by the right – SANDU v Minister of Defence:
In re SANDU v Minister of Defence 2003 9 BCLR 1055 (T) 1070.
55 SANDU v Minister of Defence supra 2007 8 BCLR 863 (CC), 2007 5 SA 400 (CC) para 68.
56 SANDU v Minister of Defence 2007 8 BCLR 863 (CC), 2007 5 SA 400 (CC) paras 51, 52. The court
did not express itself on the approach to be followed should legislation not have been enacted
to give effect to s 23(5).
3.2 Environmental rights57

The first part of the right protects human health and well-being against any harm to
58
the environment. The second part protects everyone’s interests in the environment
in a broader sense, in that it concerns prevention, conservation, protection and
59
judicious utilisation of the environment. The environment includes fauna, flora
and bio-diversity. In BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation,
Environment and Land Affairs, the court stated that the environmental right is on par
with such rights as those relating to property and freedom of trade, occupation,
profession.60
In Fuel Retailers Association of SA v Director-General Environmental Management a ma-
jority of the Constitutional Court held that section 24 of the Constitution, the Envi-
ronment Conservation Act 73 of 1989 and the National Environmental Management
Act 107 of 1998 require socio-economic factors to be considered as an integral part
of the responsibility of environmental authorities, because economically unsustain-
able filling stations could threaten the environment and because “the collapse of a
development may have an adverse impact on socio-economic interests such as the
loss of employment”.61 In his minority judgment Sachs J argued that economic
sustainability is only relevant for the purposes of section 24 and the National Envi-
ronmental Management Act when it implicates the environment and that absent
some threat to the environment, the question of possible overtrading is not one
62
which the environmental authorities need to consider. In this case, the parties used
environmental affairs laterally to further their economic interests.
The Constitutional Court also held that the 30-day notice and comment proce-
dure in section 32 of the Environment Conservation Act does not apply to directives
issued in terms of section 31A of the Act to cease within a period specified in the
directive activities which may seriously damage, endanger or detrimentally affect the
environment. The court held that the section 32 procedure applies to directives
which affect the general public, whereas section 31A applies to situations in which
the actions or inactions of individuals cause or threaten harm to the environment.
The powers in section 31A must be exercised subject to the fairness requirements in
________________________
57 See Du Plessis A Fulfilment of South Africa’s Constitutional Environmental Right in the Local Govern-
ment Sphere (2008); Feris L “Constitutional environmental rights: an under-utilised resource”
2008 SAJHR 29; Kidd M “Environment” in Currie I and De Waal J The Bill of Rights Handbook
(2013) 516-–529. S 29 of the Interim Constitution was referred to in Minister of Health & Welfare
v Woodcarb (Pty) Ltd 1996 3 SA 155 (N) 164; Wildlife Society of Southern Africa v Minister of Envi-
ronmental Affairs & Tourism of the RSA 1996 3 SA 1095 (Tk) 1104.
58 See, on the meaning of the concepts “environment”, “health” and “well-being” in s 24(a),
Liebenberg S in Davis D et al Fundamental Rights in the Constitution (1997) 257. Regarding the
word “environment”, Du Plessis A Fulfilment of South Africa’s Constitutional Environmental Right in
the Local Government Sphere (2008) 243 states that “the term cannot be limited to the non-
human environment, but must be defined broadly to include, for example, socio-economic
and cultural dimensions of the interrelationship between people and the natural environ-
ment”.
59 See, on the meaning of the different concepts in s 24(b), Bray E in Carpenter (ed) Suprema
Lex. Opstelle oor die Grondwet aangebied aan Marinus Wiechers (1998) 135.
60 2004 5 SA 124 (W) 143.
61 Fuel Retailers Association of SA v Director-General Environmental Management 2007 10 BCLR 1059
(CC), 2007 6 SA 4 (CC) paras 62, 70, 72, 74.
62 Fuel Retailers Association of SA v Director-General Environmental Management 2007 10 BCLR 1059
(CC), 2007 6 SA 4 (CC) para 115. See also Du Plessis W and Britz L “The filling station saga:
environmental or economic interests?” 2007 TSAR 263.
section 36 of the Environment Conservation Act and the provisions of the Promo-
63
tion of Administrative Justice Act 3 of 2000.
4 Property
4.1 Section 25 420
4.3 Persons and institutions bound by the right to property 423
4.4 The duties of those bound by the right and justification for not complying
with the duties 424
4.5 Steps to apply the right to property 434
4.1 Section 25
25(1) No one may be deprived of property except in terms of law of general applica-
tion, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application – (a)
for a public purpose or in the public interest; and (b) subject to compensation, the
amount of which and the time and the manner of payment of which have either been
agreed to by those affected or decided or approved by the court.
(3) The amount of the compensation and the time and manner of payment must be
just and equitable, reflecting an equitable balance between the public interest and the
interests of those affected, having regard to all relevant circumstances, including – (a)
the current use of the property; (b) the history of the acquisition and use of the prop-
erty; (c) the market value of the property; (d) the extent of direct state investment and
subsidy in the acquisition and beneficial capital improvement of the property; and (e)
the purpose of the expropriation.
(4) For the purposes of this section – (a) the public interest includes the nation’s
commitment to land reform, and to reforms to bring about equitable access to all
South Africa’s natural resources; and (b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its avail-
able resources, to foster conditions which enable citizens to gain access to land on an
equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of
past discriminatory laws or practices is entitled to the extent provided in an Act of Par-
liament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of
past racially discriminatory laws of practices is entitled, to the extent provided by an
Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and
other measures to achieve land, water and related reform, in order to redress the re-
sults of past racial discrimination, provided that any departure from the provisions of
this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).

The right to property protects the ability to acquire and control assets.
The formulation of the right does not expressly refer to the acquisition of property.
One of the prominent negative features of the pre-1994 dispensation was the way in
which the acquisition of property by the majority of South Africans was severely
________________________
63 MEC: Department of Agriculture Conservation and Development v HTF Developers (Pty) Ltd 2008 4
BCLR 417 (CC) paras 36, 42, 52.
restricted. Even though the limitation of the freedom to acquire property on racial
or other grounds can now be dealt with in terms of the right to equality, it is difficult
to assume that the constitution-makers intended the right to acquire property not to
be a constitutionally protected right. If it is not considered to be a constitutionally
protected right, a simple parliamentary majority would by prohibiting all forms of
acquiring property by anybody be able to entrench the rights of existing property
owners and freeze out people who have no property. This is a case in which human
rights violations of the past as a source of constitutional interpretation indicate that
64
the right to acquire property must be read into section 25(1).
The negative formulation of the right (“No-one may be deprived … “) has no par-
ticular practical implications.65
The concept “property” determines the borders which other may not transgress.66
Property involves “the bundle of rights that make up ownership such as the right to
use property or to exclude other people from using it or to derive income from it or
to transfer it to others”.67 The bundle of rights includes possession,68 the right to
dispose of property and the right to freedom of testation.69 Interference with the
freedom of testation is interference with the right to dispose of property and such
70
interference must be justified in terms of limitation clauses. An extensive meaning
71
is attached to property in all democratic systems.
Except for stating that property is not limited to land in section 25(4)(b), the Bill
of Rights does not define “property”. The Constitutional Court has referred to
general criteria to identify property for constitutional purposes. These include
whether something has commercial (monetary) value, whether it is definable and identifiable
by others, whether it is capable of being disposed of and transferred, and whether it could be
counted as an asset in the holder’s estate. 72 The subjective interest of an owner in the
________________________
64 See ch 3 para 2.3(g).

(CC) para 72. Van der Walt A The Constitutional Property Clause (1997) 21–28. The court in Le-
bowa Mineral Trust Beneficiaries Forum v President of the RSA 2002 1 BCLR 23 (T) 29 stated that
right in s 25 does not provide “for formal eligibility to acquire and to hold property”.
66 Victoria & Alfred Waterfront (Pty) Ltd v Police Commissioner of the Western Cape 2004 5 BCLR 538
(C) 544.
67 Geyser v Msunduzi Municipality 2003 3 BCLR 235 (N) 249. See, however, the following statement
in respect of the property guarantee in the European Convention on Human rights by De
Schutter O “Waiver of rights and state paternalism under the European Convention on Hu-
man Rights” 2000 Northern Ireland Legal Quarterly 506: “The ... right to property … does not ex-
tend to the right to exchange that property against some other advantage, under the
conditions reigning in the market.”
68 Ngqukumba v Minister of Safety and Security 2014 7 BCLR 788 (CC), 2014 5 SA 112 (CC) para 18.
69 This was assumed for the purposes of judgment in Minister of Education v Syfrets Trust Ltd 2006
10 BCLR 1214 (C), 2006 4 SA 205 (C) para 18. The court nevertheless held that changing the
provisions of a testamentary trust did not interfere with the rights to property, but only with
freedom of testation. The court missed the point that deprive in s 25 must not be interpreted
literally. Deprival in s 25(1) means limitation.
70 Cameron W-B “Freedom of testation and the bill of rights” 2007 SALJ 678, 690.
71 See eg Sachs G Grundgesetz Kommentar (2009) 598-604; Rainey B, Wicks E and Ovey E The
European Convention on Human Rights (2014) 496-500; Praduroux S The Protection of Property
Rights in Comparative Perspective (2013) 55; Frowein J and Peukert W Europäische Menschen-
rechtskonvention – EMRK-Kommentar (2009) 640-648; Chemerinsky E Constitutional Law (2015)
589; Henkin L et al Human Rights (2009) 1522, 1533.
72 National Credit Regulator v Opperman 2013 2 BCLR 170 (CC), 2013 2 SA 474 (CC) paras 32, 63;
Agri SA V Minister for Minerals and Energy 2013 7 BCKL 727 (CC), 2013 2 SA 1 (CC) paras 44, 50;
Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Environmental Affairs and Tourism East-
ern Cape 2015 9 BCLR (CC), 2015 6 SA 125 (CC) paras 68, 143.
thing owned and the economic value of ownership play no role in the definition of
property.73
In the FNB case, the Constitutional Court said that the definition of property must re-
74
flect a balance between property rights and societal interests. This may very well be
necessary in systems without a general limitation clause, but concerns about the right
to property as a so-called absolute right are unfounded as the right may be limited under
limitation clauses. In the South African Constitution, the possibility that the right may
75
be limited, represents the social dimension of the right. In Law Society of South Africa v
Minister of Transport the Constitutional Court said that the definition of property
should not be too wide to make legislative regulation impracticable and not too nar-
76
row to render the protection of property of little worth. It is undoubtedly correct that
property should not be defined so narrowly as to render its constitutional protection
meaningless. However, taking the need for and the effectiveness of legislative regulation
into account for the purposes of defining property, is wrong. The need for regulation
affect the purpose of a limitation of the right to property and it must be considered
within the framework of the justification of a factual deprivation of property.
In principle, everything that forms part of a person’s estate may be considered
77
“property”.
Writers and the courts refer to movable property;78 money at hand;79 gravel on land;80
immovable property;81 mineral rights;82 water use rights;83 immaterial and intellectual
property84 (copyright, patents, trademarks, confidential commercial information);
rights based on contract (debts, claims, goodwill,85 company shares, rights in partner-
ships, praedial servitudal land-use rights), the right to claim restitution of money paid
based on unfair enrichment;86 claims for loss of earning capacity of support;87 welfare
________________________
73 First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702 (CC), 2002 4
SA 768 (CC) para 52. In Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Environmental
Affairs and Tourism Eastern Cape 2015 9 BCLR (CC), 2015 6 SA 125 (CC) paras 4, 39, 44;
Froneman J held in his judgment that the property concept in the Constitution must accord
with constitutional founding values and other rights. In identifying wine licences as property
he linked these licenses to human dignity via the right to choose a trade in s 22 of the Consti-
tution. This approach was criticised in para 139 of the judgment.
75 See Rautenbach IM “Dealing with the social dimensions of the right to property in the South
African bill of rights” 2015 TSAR 822.
76 Law Society of South Africa v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC)
para 83.
77 In Lebowa Mineral Trust Beneficiaries Forum v President of the RSA 2002 1 BCLR 23 (T) 31 the
court stated incorrectly that property is limited to land and other corporeal things and that it
does not include mineral rights.
SA 768 (CC) para 50; South African Diamond Producers Organisation v Minister of Minerals and En-
ergy 2017 10 BCLR 1303 (CC), 2017 6 SA 331 (CC) para 39.
79 Chevron SA (Pty) Ltd v Wilson 2015 10 BCLR (CC) para 16.
80 Du Toit v Minister of Transport 2005 11 BCLR 1053 (CC), 2006 1 SA 297 (CC) para 22.
81 Reflect All 1025 v MEC for Public Transport 2010 1 BCLR 61 (CC), 2009 6 SA 391 (CC) para 38.
82 Agri SA v Minister for Minerals and Energy 2013 7 BCLR 727 (CC), 2013 4 SA 1 (CC) para 50.
83 Van der Walt M and Pienaar G “The concept of ‘beneficial use’ as a limitation of the right to
use water” 2012 TSAR 418, 422. On the status of a right to a view from a property, see Van der
Walt AJ and Kriek CA “The right to a view reconsidered” 2015 TSAR 482.
84 Laugh it Off Promotions KH v SAB International Finance BV 2005 8 BCLR 743 (CC), 2006 1 SA 144
(CC) para 17.
85 Phumelela Gaming and Leisure Ltd v Gründling 2006 8 BCLR 883 (CC) paras 30, 38, 41.
86 National Credit Regulator v Opperman 2013 2 BCLR 170 (CC), 2013 1 SA 1 (CC) para 63; Cool
Ideas 1186 CC v Hubbard 2014 8 BCLR 869 (CC), 2014 4 SA 474 (CC) para 38.
87 Law Society of SA v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC) para 84.
rights against the state (pensions, medical benefits, subsidies);88 certain licences, quo-
tas and permits issued by the state; other rights against the state based on legislation in
which the state gives effect to social rights (especially land-use and water-use rights in
terms of land reform and similar initiatives).89
90
All natural persons and juristic persons are bearers of the right.
Organs of state are not bearers of the right. In City of Tshwane Metropolitan
Municipality v Link Africa (Pty) Ltd the Tshwane municipality applied for the
invalidation of legislative provisions because they allegedly violated the right to
property. The court held that the municipality was an organ of state and could
therefore not be the bearer of the right to property; it was acting solely as a
government agency not as representing the public interest for the purposes of
91
section 38(d) of the Constitution.
4.3 Persons and institutions bound by the right to property

The right to property binds all organs of state and with certain exceptions also
private persons.
Although not all the duties in terms of section 25, for example, those concerning
expropriation, can be regarded as duties of private persons, the nature of the
right to property is such that it is probably one of the best examples of a right
which is capable of being applied in private relations for the purposes of sec-
tion 8(2).92 An interpretation of the phrase “and no law may permit the arbitrary
deprivation of property” to mean that only the state is prohibited from infringing
the right to property ignores the first part of the guarantee that “no one may be
93
deprived of property” which does not qualify the institutions and persons who are
bound by it. To the extent that the second part of provision (“. . . and no law may
permit arbitrary deprivation . . .”) covers legislation and not individual executive,
administrative, judicial and private actions which “deprive” persons of their prop-
erty, deprival by these other institutions and persons are covered by the first part of
section 25.
________________________
88 In Transkei Public Servants Association v Government of the RSA 1995 9 BCLR 1235 (Tk) 1246–1247
the court assumed that “property” includes a housing subsidy.
89 In Baron v Claytile (Pty) Ltd 2017 10 BCLR 1225 (CC), 2017 5 SA 329 (CC) para 10 – the right to
security of tenure in s 25(6) of the Constitution which is being given effect to in the Extension
of Security of Tenure Act 62 of 1997, involves that the bearers of the right enjoy rights and en-
titlements over the land they occupy.
SA 768 (CC) paras 43–45.
91 S 38(d) deals with a right to approach a court “acting in the public interest”. See ch 27 para
3.3(d) below.
92 In Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 1 BCLR 14 (CC), 2003 2 SA 34
(CC) para 4, the court said that the right in s 25(1) cannot be applied between private persons.
In Modder East Squatters v Modderklip Boerdery; President of the RSA v Modderklip Boerdery 2004 8
BCLR 821 (SCA), 2004 6 SA 40 (SCA) para 21, the court held that the unlawful occupation of
land infringes the owner’s right to property. The horizontal application of the right was raised,
but not decided, in President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 8 BCLR 786 (CC),
2005 5 SA 3 (CC) para 26.
93 Contra Roux T “Property” in Woolman et al Constitutional Law of South Africa para 46.2(a) and
para 46.3(b): “[In] its technical sense [deprive] refers to the regulation of private property by
the state, and therefore has no meaning in the context of private relations.” Roux does not
identify any source of this technical meaning. See also Van der Walt A Constitutional Property
Law (1997) 48; Badenhorst J and Mostert H “Ambit of mineral rights: Paving the way for new
order disputes?” 2007 TSAR 409, 420.
4.4 The duties of those bound by the right and justification for not
complying with the duties
Those bound by the right may not “deprive” bearers of the right of their property
and the state may not “expropriate” property.
Apart from being bound not to infringe the right by depriving people of their
property, all organs of state must protect, promote and fulfil the right in terms of
section 7(2). These duties of the state require that the right be protected against
94
infringement by third parties. by the law of delict and by common-law crimes and
95
statutory crimes.
Deprive is the general term and it includes a great variety of actions – for example,
expropriation referred to in section 25(2) and the seizure of property referred to in
section 14(c).96 Deprival and expropriation are not two completely separate catego-
ries. Expropriation is a form of deprival. A deprival that does not comply with the
definition of expropriation must be dealt with as a deprival under section 25(1). In
principle, there can therefore be no grey area in which law or action that affects
property can be neither deprivation nor expropriation.
In paragraph 4.4.1 the duty not to deprive and justification for not complying
with the duty is discussed and in paragraph 4.4.2 the duty not to expropriate
without complying with certain requirements. In paragraph 4.4.3 reference is
made to seizure of property as a form of deprival. Paragraph 4.4.4 deals with
duties in respect of the unequal distribution of land and other resources in South
Africa.
4.4.1 The duty not to deprive and justification for not complying with the duty
“Deprival” is not interpreted literally to mean “taking away”.
The word deprival in section 25(1) refers to any limitation in respect of the acquisi-
tion, use of and control over property.
In First National Bank v CIR; First National Bank v Minister of Finance (the First National
Bank case) the court said that “deprive” includes any interference “with the use,
enjoyment or exploitation of private property” and that deprivation may affect only
97
certain incidents of ownership. This is a sound approach.
However, the Constitutional Court later started to add qualifications to this test. In
a series of subsequent judgments the court held that there must be “substantial
interference that goes beyond the normal restrictions on property use or enjoyment
98
found in an open and democratic society”; that “the impact must be of sufficient
________________________
94 Such as theft, robbery, extortion, housebreaking with the intent to commit a crime, receiving
stolen property, fraud, forgery, theft by false pretences, arson, and malicious injury to
property.
95 Such as crimes in the Merchandise Act 17 of 1941, Trade Marks Act 62 of 1963, Designs Act 57
of 1967, Patents Act 37 of 1952, Copyright Act 63 of 1965, and Insolvency Act 24 of 1936.
96 Standard Bank of SA Ltd v Saunderson 2006 9 BCLR 1022 (SCA) para 2 – a “mortgage bond . . .
curtails the right of property at its root, and penetrates the rights of ownership, for the bond-
holder’s rights are fused into the title itself”.
SA 768 (CC) paras 58, 100.
98 Mkontwana v Mandela Metropolitan Municipality supra 2005 2 BCLR150 (CC), 2005 1 SA 530 (CC
para 32. In Reflect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng Provincial
Government 2010 1 BCLR 61 (CC), 2009 6 SA 391 (CC) para 35 the court said that the judg-
ment in Mkontwana “expanded” the notion of deprival. This is incorrect. The Mkontwana
judgment limited the definition in the FNB judgment.
magnitude to warrant constitutional engagement”; 99 that the interference must have

100
a “legally relevant” impact; that “substantial interference” and “legally relevant
101
impact” are synonyms; and even that there is no deprivation of a debtor’s patri-
102
mony when the debtor pays a debt which he or she owes. These are not useful
criteria for the application of the concept of deprival. To determine whether inter-
ferences are abnormal restrictions in open and democratic societies, or whether
they warrant constitutional engagement, or whether they are legally relevant are
standards requires at the very least that all the aspects of the arbitrariness (or justifi-
ability, or proportionality) of factual interferences with property have to be consid-
ered. The Constitutional Court complicates matters unnecessarily by drawing
limitation considerations into its definition of deprival.
An argument that the legally-significant criterion for deprival amounts to no more
than an application of the maxim de minimis non curat lex and that this criterion
103
does not differ significantly from the approach in the First National Bank case is
not convincing. The de minimis rule concerns the extent of an intervention. This
is a matter referred to in section 36(1)(c) of the Constitution. However, the extent
of a limitation is not the only factor to be taken into account when legal significance
is determined. Any intervention will be irrelevant or insignificant only if its nature
and extent are outweighed by the importance of a legitimate purpose. Applying
the de minimis rule without reference to the purpose of the limitation means that
a conclusion is reached instinctively without taking note of the purpose of the
limitation and the relation between the nature and extent of the limitation and
the purpose of the limitation as required by section 36(1)(c) and (d) of the Con-
stitution.
A reduction in the value of one’s estate is an important (although not the only)
indication that there has been a “deprivation” of property.
However, in Law Society of South African v Minister of Transport, counsel for the minister
argued that when we incur costs we do not suffer a deprivation of property merely be-
cause the net value of our estates is thereby reduced – “[i]f it were so, every imposition
of tax would constitute a deprivation of property because the net value of the tax-
104
payer’s estate is thereby reduced”. However, it unrealistic to consider tax not to in-
105
volve a deprival of property. It is often overlooked that a deprival as such is not
________________________
99 Offit Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd 2011 2 BCLR 189 (CC), 2011
1 SA 293 (CC) paras 39, 41.
100 City of Tshwane Municipality v Link Africa Ltd 2015 11 BCLR 1265 (CC), 2015 6 SA 440 (CC)
para 167.
1303 (CC), 2017 6 SA 331 (CC) para 48.
102 Jordaan v City of Tshwane Metropolitan Council 2017 10 BCLR 1303 (CC), 2017 6 SA 331 6 SA
287 (CC) para 63. In Minister of Education v Syfrets Trust Ltd 2006 10 BCLR 1214 (C), 2006 4
SA 205 (C) para 20 it was held that a court’s amendment of testamentary trust instruments
on the grounds of public policy, necessity or impossibility or in the application of the cy près
doctrine, does not amount to deprivation. It is indeed a limitation that must comply with the
requirements for limitation.
103 See Van der Walt A “Section 25 vortices (part 2) 2016 TSAR 597, 607.
104 Law Society of South Africa v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC)
para 82.
105 Jordaan v City of Tshwane Metropolitan Council 2017 10 BCLR 1303 (CC), 2017 6 SA 331 6
SA 287 (CC) para 63 held that property interests of a new property owners and their
bondholders are affected when municipal charges against of previous owners are transferred
to the new owner.
unconstitutional, the deprival must be arbitrary. The fact that raising taxes can easily
106
be justified in terms of limitation clauses does not mean that taxation does not fac-
tually reduce estates and that the state need not justify the deprival in order for it to be
107
constitutionally valid. The Constitutional Court has recognised the following as “de-
privals”: the provision in section 10(1)(b) of the Housing Consumers Protection Meas-
ures Act 95 of 1998 that a person not registered as a home builder may not receive any
108
consideration in terms of an agreement with a housing consumer; and operations of
licensees operations on premises that they do not own my amount to deprival of prop-
109
erty.
Seizure of property amounts to interference with the use of and control over
property. Seizure of property is a form of “deprival.” Section 14 prohibits the seizure
of property as part of the right to privacy. To the extent that it might be argued
that the prohibition in section 14 applies to seizures only when privacy is infringed,
it is important to note that section 25 applies to all other conceivable forms of
110
seizure.
As far as justification for factual limitations of the right to property is concerned,
section 25(1) provides that a deprivation of property is not unconstitutional when
(a) it has been done in terms of a law of general application and (b) that law does
not authorise arbitrary deprivation.
(a) The qualification that property may be deprived “in terms of law of general
application only” repeats the same requirement in section 36(1).
The same requirement in section 36(1) that rights may only be limited “in terms of
law of general application” cannot and need not be applied after it has been applied
in the context of section 25(1). Whereas the South African writers concentrate
111
mostly on legislation as the “law of general application” in section 25(1), the com-
mon law and more particularly judicially developed common law also amounts to
“law of general application”, for example, when courts would as a general rule
112
read a term into all contracts of cession of mineral rights. Neither in section 36(1)
nor in section 25 can the phrase “in terms of law of general application” be read to
imply that limitations are only permissible if a partcular limitation is expressly
provided for in a legal rule. The right may also be limited by other state action or
private action if such action is authorised in a legal rule and the authorisation by
necessary implication entails that the right to property (or any other right) may be
113
limited.
________________________
106 See in respect of the position in Germany, Kirchoff P “Der Grundrechtsschutz der Steuer-
pflichtigen” 2003 Archiv des öffentliches Recht 1, 14.
107 On the factual limitation of property interests by acquisitive prescription, see Van der Walt AJ
and Marais E “The constitutionality of acquisitive prescription: a section 25 analysis” 2012
TSAR 714–736.
108 Cool Ideas 1186 CC v Hubbard 2014 8 BCLR 869 (CC), 2014 4 SA 474 (CC) para 39.
paras 58, 59, 173.
110 Were there to be such cases, the implication would be that unconstitutionally obtained
evidence resulting from the seizure of property for the purposes of s 35(5) could also be
the consequence of an infringement of the right to property and not only of the right to
privacy.
111 See the sources referred to by Badenhorst P and Mostert H “Ambit of mineral rights: Paving
the way for new order disputes?” 2007 TSAR 419.
112 Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2006 4 BCLR 492 (T) 537.
113 See ch 18 para 2.1.
(b) The last part of section 25(1) that no law may permit arbitrary deprivation of
property is a special limitation clause which is applied by taking into account the
same factors that are listed in section 36(1)(a) to (e).114
The Constitutional Court initially followed a different approach. In the FNB case,
the Constitutional Court held that the test for “arbitrariness” in section 25(1)
115
involves more than a rational relationship test, but that the test is weaker than the
116
proportionality test in section 36.
The court’s assumption that the rational relationship test is not a test within the
framework of section 36, is wrong. As explained in chapter 18 paragraph 2.2 the
consideration of the factors in section 36(1)(a) to (e) facilitates the development of
various standards of review. The standards may range from weak scrutiny under a
rational relationship test to very strict scrutiny. In the case of a very slight interfer-
ence with the protective ambit of a right or a very important and urgent purpose
such as raising taxes for the purpose of combating crime and disease, a rational
relationship test may indeed be the only appropriate test within the framework of
the general limitation clause. The court also assumed incorrectly that section 36
prescribes a single fixed standard. Whatever test the court wishes to use in respect of
the limitation of the right to property can be accommodated within the framework
of the application of section 36.
“Arbitrary” in section 25(1) cannot have a special meaning which must at all costs
be distinguished from a section 36 analysis. In fact, when the court’s application of
its test for arbitrariness in the FNB case is analysed in paragraph 100 of the judg-
ment, it is clear that the court applied all the factors referred to in section 36(1)(a)
to (e).117 The court referred to the relationship between the means employed to
“deprive” and the ends sought to be achieved – that is, the factors referred to in
section 36(1)(b), (c) and (d); the relationship between the purpose of the depriva-
tion and the person whose property is affected – that is, the factors referred to in
section 36(1)(a), (b) and (d); and to the relationship between the purpose of the
deprivation, the nature of the property and the extent of the deprivation in respect
of such property – that is, the factors referred to in section 36(1)(a), (b) and (d).
________________________
114 See ch 18 para 3; Rautenbach IM “The limitation of rights in terms of provisions of the bill of
rights other than the general limitation clause; a few examples” 2001 TSAR 617 and “Die reg
op eiendom – arbitrêre ontneming, proporsionaliteit en die algemene beperkingsbepaling in
konteks” 2002 TSAR 822. According to certain writers the tests are distinguishable. See, eg,
Badenhorst PJ and Mostert H “Ambit of mineral rights: Paving the way for new order dis-
putes?” 2007 TSAR 409.
115 See, also, National Director of Public Prosecutions v Ro Cook Properties 2004 8 BCLR 844 (SCA)
para 30.
116 First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702 (CC), 2002
4 SA 768 (CC) para 65. The court rejected the idea in Lebowa Mineral Trust Beneficiaries Forum
v President of the RSA 2002 1 BCLR 23 (T) 29 that “arbitrary” refers to a rational relationship
test only. Failure to realise that a special limitation clause may overlap completely with the
test in s 36 could cause serious problems in deciding what the relationship between “arbi-
trary” in s 25(1) and the general limitations clause is – see Van der Walt A “Striving for the
better interpretation – a critical reflection on the Constitutional Court’s Harksen and FNB
decisions on the property clause” 2004 SALJ 854, 873.
117 First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR 702 (CC), 2002
4 SA 768 (CC) para 100. This applies also to the way in which the limitation of the right to
property is dealt with in Mostert H “Engaged citizenship and the enabling state as factors de-
termining the interference parameter of property: a comparison of German and South Afri-
can law” 2010 SALJ 238, see in particular 267–269.
The purpose of deprivation has to be more compelling when deprivation embraces
all incidents of ownership than when only certain incidents are involved.
An analysis of Constitutional Court judgments since the FNB case reveals with-
out any doubt that the Constitutional Court in applying the test for non-arbitrariness
in section 25(1) takes into account the factors referred to in section 36(1)(a)
to (e).
The following are examples of this practice. In confirming the validity of a provision
that the registrar of deeds may not effect transfer of any property without a certificate
that the consumption charges have been paid for the previous two years, the court
held that debt recovery for the economic and sustainability of municipalities were the
118
purposes of the limitation. The restrictions imposed on the use and enjoyment of
land by route determinations and preliminary designs are not arbitrary because the
limitation was not unreasonably disproportionate to the end sought, namely strategic
119
planning of roads. In several cases dealing with the forfeiture of property, the court
applied proportionality analysis in line with the requirements of section 36 in so many
120
words, and in one of them the court refused to apply a single general standard such
as “significant proportionality” or “proportionality simpliciter”, or the fixed FNB stan-
121
dard. The court also said that proportionality need not be pleaded by a person fac-
ing forfeiture, because the state “must always anticipate that a court will enquire into
proportionality and must always place sufficient facts before the court to enable it to
122
make the requisite proportionality assessment”.
In City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd the Constitutional
Court stated that “the arbitrariness and justification enquiries [in terms of sections
123
25(1) and 36] involve the same analysis and consideration of similar factors”. The
provision in the last part of section 25(1) that no law may permit arbitrary
deprivation of property is, therefore, a special limitation clause which neither adds
124
to nor detracts from the general limitation clause in section 36. Aspects of section
36(1) that overlap with the “arbitrary” test cannot and need not be applied after the
test for “arbitrariness” has been applied in the context of section 25(1). This does
not mean that section 36(1) becomes redundant or has receded into the
background; it means that the test for non-arbitrariness in section 25(1) contains
elements of section 36(1) and that knowledge about the application of section 36 is
essential for the application of the test in section 25.
________________________
118 Mkontwana v Nelson Mandela Metropolitan Municipality 2005 2 BCLR 150 (CC), 2005 1 SA 530
(CC) paras 35, 52–59, 65–67 and 90.
119 Reflect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng Provincial Government,
2010 1 BCLR 61 (CC), 2009 6 SA 391 (CC). See Rautenbach 2010 TSAR 378-379 for an analy-
sis of this aspect of the judgment. See also Cool Ideas 1186 CC v Hubbard 2014 8 BCLR 869
(CC), 2014 4 SA 474 (CC) paras 43 and 166; Chevron SA (Pty) Ltd v Wilson t/a Wilson’s Trans-
port 2015 10 BCLR 1158 (CC) paras 21–24, 33.
120 Prophet v National Director of Public Prosecutions 2007 2 BCLR 140 (CC), 2007 6 SA 169 (CC)
paras 58 and 161; Mohunram v National Director of Public Prosecutions 2007 6 BCLR 575 (CC),
2007 4 SA 222 (CC) paras 56 and 130; Armbruster v Minister of Finance 2007 12 BCLR 1283
(CC) paras 69–81.
121 Mohunram v National Director of Public Prosecutions 2007 6 BCLR 575 (CC), 2007 4 SA 222 (CC)
paras 76–74.
122 Mohunram v National Director of Public Prosecutions 2007 6 BCLR 575 (CC), 2007 4 SA 222 (CC)
para 133.
para 77.
124 The statement in Nhlabatini v Fick 2003 7 BCLR 806 (LCC) para 34 that s 36 and the special
limitation provisions in s 25 must both be applied, is incorrect.
It must be borne in mind that section 36 must in any case be applied to all instances
not covered by the phrase “no law may permit arbitrary deprivation of property” in
section 25(1).
The phrase “no law may permit arbitrary deprivation of property” does not refer to
the limitation of the right by administrative and executive organs and by private
persons which they undertake under constitutionally valid legislative authorisation.125
These organs and persons are bound by the first part of section 25(1), “[n]o one
may be deprived of property”. When they limit the right to property they must
comply with all the laws that give effect to the right to just administrative action and
the application of the Bill of Rights to private relations. Neither does the phrase “no
law may permit arbitrary deprivation of property” refer to instances in which the
contents of legal rules limit the right to property directly, for example, by defining
powers that may be exercised under in respect of particular forms of property.
Strictly speaking, such a law does not “permit” deprivation by somebody else: the law
itself “deprives”. The general limitation clause applies to such legal rules. The view
that legislatures need not in these instances comply with any requirement
concerning the contents of their legislative limitations is not tenable.
4.4.2 The duty not to expropriate without complying with certain requirements
In all systems, special rules apply to this form of the limitation of the right. Only the
state may expropriate and the provisions of section 25(2) and (3) bind only organs
of state. Because expropriation amounts to a serious limitation of the right to
property, it is subject to special requirements. These requirements are special
limitation provisions which, as will be indicated below, prescribe a specific purpose
for the limitation and a specific way in which a just relation between the limitation
and the purpose must be achieved.
Expropriation is usually distinguished from other forms of deprivation in that (i)
expropriation amounts to a real taking away of the property from a specific owner or
owners; (ii) the property is taken away by the state; (iii) the property is transferred to
and acquired by the state or a third party.126
When a deprival of property complies with these criteria it is called “expropria-
tion” and it must then comply with the constitutional requirements, namely that it
must be authorised by a law of general application, that it must be for a public
purpose or in the public interest that a just balance limitation and the purpose must
be achieved through compensation. It must be noted that these requirements are
not components of the definition of expropriation, they are requirements that must
be complied with after a deprival has been identified as an expropriation. A deprival
which does not comply with the definition of expropriation must be dealt with as a
deprival in terms of section 25(1).
________________________
125 See ch 17 paras 5 and 7. See in respect of courts, the last para in ch 17 para 6.
126 Arun Property Development (Pty) Ltd v City of Cape Town 2015 3 BCLR 243 (CC) para 58: Expro-
priation “occurs by state coercion and without the consent of the affected owner” and it is
“the compulsory deprivation of ownership or rights usually by a public authority for a public
purpose”. The German Federal Constitutional Court has said that expropriation is the partial
or complete taking away by the state of constitutionally protected property and the acquisi-
tion by the state or another beneficiary of the affected entitlements to fulfil a specific public
obligation. See the reference in Rautenbach IM “Expropriation and compensation for limita-
tions of the right to property that do not amount to expropriation – South African notes on a
German judgment” 2017 TSAR 583; and on the acquisition element 589–590 of this article
and Agri South Africa v Minister for Minerals and Energy 2013 7 BCLR 727 (CC), 2013 4 SA 1
(CC).
Examples of findings of the Constitutional Court in specific instances: the temporary
transfer of a solvent spouse’s property to the trustee of the insolvent estate the other
spouse is not expropriation but a temporary divestment of the property in order to
127
determine the ownership of the property; restrictions on property in terms of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
regulates the exercising of property rights analogous to rent-control legislation, and
128
building regulations do not constitute expropriation; old order mineral rights were
not expropriated when in terms of the Mineral and Resources Development Act 28 of
2002 their holders lost their rights because did not have money to apply for the con-
version of their rights because the state did not acquire the property but only became
129
custodians of the rights.
In all systems, instances occur in which the deprivation does not qualify to be called
expropriation as defined either in constitutional provisions, ordinary legislation or
court judgments that regulate expropriation, but in which the practical effect of the
limitation is so extensive and burdensome that the right is virtually taken away
130
and/or acquired by a beneficiary. These cases are known as “inverse condemna-
tions” or “constructive expropriations”, but it must be emphasised that they do not
qualify to be called expropriation and can therefore not be dealt under the constitu-
tional and other legislative provisions that deal with expropriation. The problems in
respect of these instances seem to focus mainly on the question whether it is possible
to require that compensation be paid to the limitation of property rights that does
not amount to expropriation. As is indicated below in paragraph 4.4 these problems
can be solved within the context of the overlapping relationship between arbitrary
deprivation of property in section 25(1) and expropriation in section 25(2).
Deprivations through expropriation are subject to special limitation provisions
(a) Property may be expropriated only in terms of law of general application.
This requirement simply repeats the requirement in the general limitation clause.
The law of general application that authorises expropriation in South Africa is the
Expropriation Act 63 of 1975. (A new Expropriation Bill was passed by Parliament in
2018, but it was withdrawn on 6 September 2018 before it was signed by the Presi-
dent in order to await the outcome of the debates on expropriation without com-
pensation.)
(b) Property may be expropriated only for a public purpose or in the public
interest. This is a special limitation clause which qualifies the general limitation
131
clause. There may be no expropriation for any other purpose.
Except within the context of section 25(8), parliament may not provide in ordinary
legislation that property may be expropriated for private purposes whilst relying on
section 36 to justify the change. It can only do so by constitutional amendment. In
Harvey v Umhlatuze Municipality, a provincial court held that in our country, there is
no principle under which property that was expropriated for a public purpose that
________________________
127 Harksen v Lane 1997 11 BCLR 1489 (CC), 1998 1 SA 300 (CC) paras 29–39.
128 City of Cape Town v Rudolph 2003 11 BCLR 1236 (C), 2004 5 SA 39 (C).
129 Agri SA v Minister of Mines and Minerals 2013 7 BCLR 727 (CC), 2013 4 SA 1 (CC) para 70.
130 Van der Walt A “Moving towards recognition of constructive expropriation” 2002 THRHR
459; Mostert H “The distinction between deprivations and expropriations and the future of
the ‘doctrine’ of constructive expropriation in South Africa” 2003 SAJHR 567; Steinberg v
South Peninsula Municipality 2001 4 SA 1231 (SCA).
131 Lebowa Mineral Trust Beneficiaries Forum v President of the RSA 2002 1 BCLR 23 (T) 31.
was never realised (or for a purpose that ceased to exist) should be returned to the
original owner: The court stated:
“A distinction has to be made between, on the one hand, cases where an authority ex-
propriates land for a stated purpose, and never commences to apply it for that pur-
pose, or uses it for a different purpose, or was mala fide from the outset; and cases
where, on the other hand, an authority expropriates land for a stated purpose, bona
fide intending to use it for that purpose, and endeavouring to bring its contemplated
project to fruition, but is thwarted in so doing for one reason or another, including
possibly the fact that circumstances have changed since the time it framed its initial
132
plan.”
(c) Property may be expropriated only subject to compensation, the amount of
which and the time and manner of payment of which have either been agreed to, or
decided, or approved by a court. This is a special limitation provision in respect of
which a just relation between the limitation and its purpose must be achieved.
This requirement qualifies the general limitation clause. It prescribes that the
appropriate relation between the limitation of the right and its purpose must be
achieved through the payment of compensation and in no other way, for example,
through the rewarding of expropriatees with civil-service appointments. It further
specifies that the compensation must be determined either by agreement, or by a
133
court, and in no other way. Because these are special limitation provisions which
qualify the general limitation clause, it cannot be argued that they may be disposed
of by complying with the general limitation clause. Except within the context of
section 25(8), parliament may not in ordinary legislation dispose of the
requirements that there must be compensation and that a court must be involved in
settling disagreements on compensation by relying on justification in terms of
section 36. The amount of the compensation and the time and manner of payment
must be just and equitable, reflecting an equitable balance between the public
interest and the interests of those affected, having regard to all relevant
circumstances. Circumstances to be taken into account include (a) the current use
of the property; (b) the history of the acquisition and use of the property; (c) the
market value; (d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and (e) the purpose of the
expropriation.134 The Constitutional Court held that the balance must be achieved
by determining the compensation in two stages: (a) by establishing what the market
________________________
132 Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) para 132. For a critical analysis of this
judgment see Du Plessis E “Restitution of expropriated property upon non-realisation of the
public purpose” 2011 TSAR 578 590 who concludes that state ownership of expropriated
property “is conditional on the requirements of section 25 being met and the expropriation
being completed. Here the ‘public purpose’ requirement places something akin to a modus
on the expropriation, where the municipality’s ownership it not restricted”.
133 In eThekwini Municipality v Haffejee 2010 6 BCLR 578 (KZD) para 24 it was held that s 25(2)
does not require expressly that the amount and time must be determined before the expro-
priation. This conclusion was also reached by the Constitutional Court in Haffejee v Ethekwini
Municipality 2011 12 BCLR 1225 (CC), 2011 6 SA 134 (CC) by arguing that the opposite con-
clusion would burden the state unduly (para 42). However, from the court’s order in this
particular case, it is clear that determination of compensation after the expropriation is an
exception (eg in the face of a natural disaster) and that the state bears the onus to convince
the court that the circumstances are exceptional. For a discussion of the case, see Iyer D “Is
the determination of compensation a pre-requisite for the constitutional validity of expro-
priation” 2012 Speculum Iuris 66; Rautenbach IM “Overview of Constitutional Court judg-
ments on the bill of rights” 2012 TSAR 301–303.
134 S 25(3).
value of the property is, and (b) by considering whether the amount representing
the market value should be adjusted upwards or downwards as required by the other
135
relevant circumstances.
Although the provisions of section 25(2) and (3), contain special limitation re-
quirements that qualify the general limitation in respect of the purpose for which
the limitation may be imposed and the way in which an acceptable relation between
purpose and limitation must be achieved, there is no complete overlap. In principle,
section 36 must be applied to expropriation to the extent that section 36 has not
136
been qualified by section 25(2) and (3).
In paragraph 4.4.2 above, mention is made of the uncertainty concerning certain
forms of deprivation which cannot be classified as “expropriation” but which has
similar serious consequences (constructive expropriation). Due to the seriousness
of its impact, expropriation as a form of deprivation of property is subject to
special limitation provisions. (It must again be emphasised that compensation is
not an element for the identification of expropriation, but a requirement for a
constitutionally valid expropriation after a particular deprivation has been identified
137
as “expropriation”.) If the consequences of an instance of so-called constructive
expropriation are extremely serious, but the deprivation does for some or other
reason not comply with the requirements of “expropriation”, a court could in
applying the arbitrary/proportionality requirement in section 25(1) come to the
conclusion that the payment of compensation is an appropriate way in which to
strike a just balance between the limitation and the purpose of the limitation.
The paying of compensation for deprivations that do not, for some or other
reason, qualify to be called “expropriation”, is not excluded expressly or by im-
plication by the non-arbitrariness requirement in section 25(1), and the existence
of ordinary legislation that deals with expropriation cannot considered to be ex-
cluding the possibility of the payment of compensation in deprivation cases that
do entail expropriation. In applying the tests for arbitrariness in terms of sec-
tion 25(1) to instances which do not formally qualify to be called “expropriation”, it
may well be that a non-arbitrary equilibrium can be reached when compensation is
138
paid.
________________________
135 Du Toit v Minister of Transport 2005 11 BCLR 1053 (CC), 2006 1 SA 297 (CC) paras 26–37;
Abrams v Allie 2004 9 BCLR 914 (SCA) para 15; City of Cape Town v Helderberg Park Development
(Pty) Ltd 2007 6 BCLR 628 (SCA), 2007 1 SA 1 (SCA) paras 20, 31, 32. For an overview of case
law on this matter, see Van Wyk J “Compensation for land reform expropriation” 2017 TSAR
21-35.
136 This is the context in which the statement in Nhlabatini v Fick 2003 7 BCLR 806 (LCC) para
34 that the provisions of s 36 and the special limitation provisions of s 25(2) and (3) apply
cumulatively must be understood.
137 It can therefore not be argued that whenever compensation is paid for a deprivation that do
not qualify to be called expropriation, that deprivation now becomes expropriation which
can only be dealt with in terms of the ordinary legislation that deals with expropriation; nei-
ther can it be argued that since compensation must be paid in the case of expropriation, the
payment of compensation to prevent arbitrariness in the case of deprivations that do not
qualify to be called expropriation is impermissible. See Slade BV “The ‘law of general appli-
cation’ requirement in expropriation law and the impact of the Expropriation Bill of 2015”
2017 PER 346.
138 For more detailed analyses see Rautenbach IM “Expropriation and arbitrary deprival of
property” 2013 TSAR 753-757 and “Expropriation and compensation for limitations of the
right to property that do not amount to expropriation – South African notes on a German
judgment” 2017 TSAR 585-597.
4.4.3 Duties within the context of the unequal distribution of land and other natural
resources in South Africa
Various provisions of section 25 regulate matters within this context.
(a) Section 25(4)(a) provides that for the purposes of section 25, “public interest”
includes the nation’s commitment to land reform and to reforms to bring
about equitable access to all of South Africa’s natural resources.
(b) Section 25(5) provides that the state must take reasonable legislative and other
measures, within its available resources, to foster conditions which enable citi-
zens to gain access to land on an equitable basis.
(c) Section 25(6) provides that a person or community whose tenure of land is
legally insecure as a result of past racial discrimination is entitled, to the extent
provided for by an Act of Parliament, either to restitution of the property or to
139
equitable redress.
(d) Section 25(7) provides that a person or community dispossessed of property
after 19 June 1913 as a result of racial discrimination is entitled, to the extent
provided for by an Act of Parliament, either to restitution of that property or to
equitable redress.
(e) Section 25(8) provides that the other clauses of section 25 may not impede the
taking of measures to achieve land, water and related reform, in order to re-
dress the results of past racial discrimination, but such measures must comply
with the general limitation clause.
The Restitution of Lands Right Act 22 of 1994 gives effect to the right in section 25(7).
The dispossessed “property” goes beyond common-law notions of rights in land. Ac-
cording to section 1 of the Act it includes any right in land, whether registered or not,
the interest of a labour tenant or sharecroppers, customary law interests, interests of a
beneficiary under a trust, and beneficial occupation for a continuous period of not less
than ten years before the dispossession. Dispossession that occurred before 19 June
140
1913 is not covered. The dispossession that has taken place may be in respect of title
that had been acquired before 19 June 1913 and in this regard registered ownership of
141
land does not always enjoy primacy over indigenous title. Racially discriminatory laws
and practices that existed before 19 June 1913, may be taken into account to throw
light on the racially discriminatory nature of a dispossession that took place after that
142
date. In Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd, the Constitu-
tional Court overruled decisions of the Supreme Court of Appeal and the Land Claims
Court that no causal link existed between past discriminatory practices and the termi-
nation by private property owners of the labour tenancies of a community of labour
tenants who occupied the private property since the eighteenth century. Whereas leg-
islation and practices relating to land rights and labour tenancy in relation to black
people were clearly racially discriminatory, the Constitutional Court had to decide in
this case, whether the termination of a land right (as defined in the Restitution of
________________________
139 Parliament had to enact the legislation within a reasonable period of the date on which the
new Constitution took effect – s 25(9) and item 21 sch 6.
140 Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC), 2004 5 SA 460 (CC) para 17. In
Abrams v Allie 2004 9 BCLR 914 (SCA), 2004 4 SA 534 (SCA) para 11 it was stated that “dis-
possessed” in s 2(1) of the Restitution of Land Rights Act 22 of 1994, means “deprivation of
possession in consequence of some outside agency. It need not be physical force. But a con-
tract freely and voluntarily entered into followed by transfer would clearly not result in a dis-
possession . . . There would have to be an element of compulsion which induced the
alienation of the property”.
141 Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 10 BCLR 1027 (CC), 2007
6 SA 199 (CC) para 22.
142 Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC), 2004 5 SA 460 (CC) para 40.
Land Rights Act – see above) was “as a result” of racial discrimination. The court held
that “as a result of” means a causal connection that “must be gathered from all the
facts as long as the connection commends itself to common sense and is reasonable
rather than remote or far-fetched”. It “should be interpreted to mean no more than
‘as a consequence of’ and not ‘solely as a consequence of’”. The court further held the
causal connection should not be understood to require that a public functionary
should perform the dispossession, but that the dispossession was a consequence of laws
or practices put in place by the state and that in this case the dispossession by the pri-
vate owners “was a progeny or direct consequence of unjust laws and state sponsored
143
practices toward land rights of black people”.
4.5 Steps to apply the right to property

In the FNB case, the Constitutional Court announced the following steps for the
application of section 25:144
“[S]ection 25(1) deals with all “property” and all deprivations (including expropria-
tions). If the deprivation infringes (limits) section 25(1) and cannot be justified under
section 36 that is the end of the matter. The provision is unconstitutional. If, however,
the deprivation passes scrutiny under section 25(1) (i.e., it does not infringe section
25(1) or, if it does, [there] is a justified limitation) then the question arises as to
whether it is an expropriation. If the deprivation amounts to an expropriation then it
must pass scrutiny under section 25(2)(a) and make provision for compensation un-
der section 25(2)(b).”
In practice, it has turned out that courts, after they have determined that there has
been a deprival of property, prefer not to launch a full investigation on whether the
deprival is not in terms of law of general application and arbitrary, but rather to ask
whether is amounts to expropriation or not, and then depending on the answer, to
deal with it either as expropriation or as a section 25(1) deprival.
The following steps are proposed:
145 146 147
1. Has a bearer of the right been deprived of property by somebody bound
148
by the right? If the answer is “no”, the inquiry ends.
2. If the answer to the question in 1. is “yes”, does the deprivation amount to
149
expropriation. If the answer is “no”, answer question 4.
3. If the answer to the question in 2. is “yes”, does the expropriation comply with
the requirement in section 25(2) and (3) and the requirements of section 36
150
which are not covered by section 25(2) and (3)?
4. If the answer to the question in 2. is “no”, does the legal rule which authorise
the deprivation, permit “arbitrary” deprivation in the sense that it does not
comply with the provisions of section 36?
5. If the answer to the question in 4. is “no”, does any discretionary action per-
formed in terms of that legal rule comply with the requirements for valid ad-
ministrative action or executive, judicial or private action?
________________________
143 Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 10 BCLR 1027 (CC), 2007
6 SA 199 (CC) paras 67, 69.
145 Para 4.2 above.
146 Para 4.4.1 above.
147 Para 4.2 above.
148 Para 4.3 above.
Chapter 25
Housing, healthcare, food, water and social security
Children – Education
Language, culture and religion
1 Housing, health care, food, water and social security 435

2 Children 445
3 Education 453
4 Language, culture, and cultural, religious and linguistic communities 457
1 Housing, health care, food, water and social security

1.1 Sections 26 and 27 435
1.2 Protected conduct and interests and bearers of the rights 435
1.3 Persons and institutions bound by the rights and their duties 436
1.4 Justification for non-compliance with duties (limitation of the rights) 442
1.1 Sections 26 and 271

26(1) Everyone has the right to have access to adequate housing.
able resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished with-
out an order of court made after considering all the relevant circumstances. No legis-
lation may permit arbitrary evictions.
27(1) Everyone has the right to have access to – (a) health care services, including re-
productive health care; (b) sufficient food and water; (c) social security, including, if
they are unable to support themselves and their dependants, appropriate social assis-
tance.
able resources, to achieve the progressive realisation of this right.
(3) No one may be refused emergency medical treatment.
1.2 Protected conduct and interests and bearers of the rights

It is generally recognised that no or insufficient access to housing, food and water,
health care and social security are both symptoms and direct causes of extreme
poverty. Extreme forms of poverty impair human dignity, life, physical and psycho-
logical integrity and the ability to acquire and control resources to improve the
quality of life. The South African Constitution contains entrenched and judicially
enforceable social rights because interference with, and insufficient access to
________________________
1 See Liebenberg S Socio-Economic Rights: Adjudication under a Transformative Constitution (2010).
435
adequate housing, health care services, food, water or social security violate human
2
conduct and interests that are essential for meaningful existence.
The conduct and interests essential for meaningful existence are also protected by
other rights in the Constitution. The conduct and interests protected by the rights
to access to adequate housing, sufficient food and water, health services and social
security are the same as the conduct and interests protected by the rights to human
dignity, equality, life, personal freedom and security and privacy.3
In the South African Bill of Rights, the conduct and interests protected by rights
such as the rights to human dignity, equality, life, personal freedom and security and
privacy are also protected by separate social rights against particular forms of limitation,
namely against interference with access to adequate housing, food, water, health
services and social services and against inaction in providing access to adequate
housing, health services, food, water and social services. (It is not a strange phe-
nomenon in bills of rights that particular rights are recognised and protected that
provide protection against certain, defined forms of limitation of other rights.)4
Although the violation of social rights could theoretically also impair conduct and
interests that are not protected by other rights in the Bill of Rights, it is difficult to
imagine what these other instances could possibly be.
The nature of the rights is such that only natural persons can be their bearers.
1.3 Persons and institutions bound by the rights and their duties
The rights bind all organs of state.
The nature of the social rights is such that they can be relevant in private relations
for the purposes of section 8(2) of the Constitution.5
In Modder East Squatters v Modderklip Boerdery; President of the RSA v Modderklip Boerdery,
the court said that “circumstances can indeed be envisaged where the right to access to
6
housing would be enforceable horizontally”. In City of Johannesburg Metropolitan
________________________
2 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 23; Khosa v
Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC),
2004 6 SA 505 (CC) para 40; City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 BCLR 643
(SCA) para 36.
3 See in respect of dignity Liebenberg S “The value of human dignity in interpreting socio-
economic rights” 2005 SAJHR 1. See in respect of equality, Khosa v Minister of Social Development;
Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC), 2004 6 SA 505 (C) para 83; De
Vos P “Pious wishes or directly enforceable human rights?: Social and economic rights in
South Africa’s 1996 Constitution” 1997 SAJHR 67–71; Pieterse M “Beyond the welfare state:
Globalization of the neo-liberal culture and the constitutional protection of social and eco-
nomic rights in South Africa” 2003 Stell LR 70–71. See in respect of personal freedom and security,
Pieterse M “The interdependence of rights to health and autonomy in South Africa” 2008 SALJ
553. In systems without similar express constitutional guarantees, problems relating to inade-
quate social services are dealt with in terms of rights such as the right to life and the right to
equality. See, in respect of the USA, Tribe American Constitutional Law 1612 n 14 and 15.
4 Ss 12(1)(e) and (c), and 14(a) of the Constitution.
5 See Pieterse M “Indirect horizontal application of the right to have access to health care
services” 2007 SAJHR 159. Contra statements in Theewaterskloof Holdings (Edms) Bpk v Jacobs 2002
3 SA 401 (LCC) para 18 and Modderklip Boerdery (Pty) Ltd v Modder East Squatters 2001 4 SA 385
(W) 395 that neither at common law nor in terms of the Constitution can the right to access to
adequate housing be enforced against individual landowners. The Constitutional Court re-
futed these statements.
6 Modder East Squatters v Modderklip Boerdery; President of the RSA v Modderklip Boerdery 2004 8 BCLR
821 (SCA) para 31.
Chapter 25 Social rights – Children – Education – Language, culture, religion 437
Municipality v Blue Moonlight Properties Municipality, the court said that it cannot be ex-
pected of a private property owner to provide free housing for the homeless on his
property indefinitely. However, the court said, in certain circumstances the right to
ownership of a landowner who purchases land for commercial purposes and who is
aware of the presence of occupiers, may be temporarily restricted by a process of giv-
ing effect to the just and reasonable requirements of lawful in terms of the Prevention
7
of Unlawful Eviction and Unlawful Occupation Land Act 19 of 1998. In Daniels v Scri-
bante the respondents argued that section 13(1)(a)(i) and (ii) of the Extension of Se-
curity and Tenure Act 62 of 1997 which provides that a court may order owners to pay
compensation for occupiers’ improvements when the occupiers are evicted, amounts
to imposing a positive duty on a private person to give effect to a social rights which is
not permitted by the Constitution. The court held that section 8(2) of the Constitu-
tion does not exclude the possibility of imposing such duties and that the right in sec-
tion 25(6) obliges owners to assist occupiers to live in houses that do not violate their
human dignity. The court explained that the factors to be taken into account for ap-
plying section 8(2) of the Constitution include the nature of the right, the history be-
hind the right, the purpose which the rights seeks to achieve and how best it can be
8
achieved, the potential that the rights can be affected by private action. In Baron v
Claytile (Pty) Ltd, the Constitutional Court held that “it might … be appropriate to ex-
pect the private landowner to assist with the finding of, or, failing that, in truly excep-
tional circumstances, to provide suitable alternative accommodation” when eviction
under exceptional circumstances is allowed in terms of section 10 of the Extension of
Security and Tenure Act 62 of 1997 where an owner wishes to evict an occupier where
9
there has been no breach of the employment relationship.
Persons bound by the rights have both duties to refrain from action in particular
ways (so-called negative duties) and duties to perform certain positive actions in
respect of the protected interests (so-called positive duties).
The negative duties require those bound by the rights not to interfere with access to
10 11
adequate housing, food, water, health services and social services.
In Japhta v Schoeman; Van Rooyen v Stoltz, the Constitutional Court stated that any
measure which permits a person to be deprived of existing access to adequate hous-
ing, limits the right protected in section 26(1), but that such a measure may be
________________________
7 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties Municipality 2012 2 BCLR
150 (CC), 2012 2 SA 104 (CC) para 40.
8 Daniels v Scribante 2017 8 BCLR 949 (CC), 2017 4 SA 341 (CC) paras 39, 40. For a discussion of
the case, see Rautenbach IM “Sosiale rege en private pligte – huisvesting op plase” 2017 Litnet
Akademies Regte 959-974.
9 Baron v Claytile (Pty) Ltd 2017 10 BCLR 1225 (CC), 2017 5 SA 329 (CC) para 37. In this case,
the court held that exceptional circumstances did not exist to expect the landowner to keep
on providing accommodation to the applicants (para 50).
10 For a thorough and useful analysis of the Constitutional Court’s jurisprudence on the right to
access to adequate housing, see Wilson S, Dugard J and Clark M “Conflict management in an
era of urbanisation: 20 years of housing rights in the South African Constitutional Court” 2015
SAJHR 472–503.
11 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 3; Minister
of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC) para
46; Japhta v Schoeman; Van Rooyen v Stoltz 2005 1 BCLR 78 (CC), 2005 2 SA 140 (CC) para 34;
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 4 BCLR 301 (CC), 2005 (2) SA 721
(CC) para 46; City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 BCLR 643 (SCA) paras 37.
The Supreme Court of Appeal refused to hold that s 26(1) protects interference with the own-
ership of all residential property – Standard Bank of SA Ltd v Sanderson 2006 9 BCLR 1022
(SCA), 2006 2 SA 264 (SCA) paras 16, 17. De Vos P “So much to do, so little done: The right of
access to anti-retroviral drugs post-Grootboom” 2003 (1) Law, Democracy and Development 88–89.
12
justified under section 36 of the Constitution. The provisions of sections 26(2) and
27(2) do not apply to non-compliance with these negative duties.
The positive duties of the state which are imposed by the rights are described in
13
sections 26(2) and 27(2). These sections provide that the state has the duty to take
reasonable legislative and other measures within its available resources to achieve
the progressive realisation of the rights guaranteed in section 26(1) and 27(1).
(Sections 26(2) and 27(2) do not describe all the duties in respect of the right in
section 26(1) and 27(1). They only describe the positive duties of the state. They also
do not cover the negative duties referred to above and they do not describe the
duties of private institutions and persons.)
The Constitutional Court provided the following guidelines on the meaning of
14
the phrases in sections 26(2) and 27(2):
• “Reasonable legislative and other measures” means that the state must establish
coherent programmes which (a) are capable of facilitating the realisation of the
rights, (b) allocate responsibilities and tasks to the different spheres of govern-
ment, (c) ensure that appropriate resources are available; (d) are implemented
in a reasonable way; and (e) provide for those whose needs are most urgent.
• “Progressive realisation of the right” means that it is recognised that the rights
cannot be realised immediately, but that the state is required to move as expedi-
tiously and effectively as possible towards the goal. If the government takes no
steps to realise the rights, then the courts will require it to take such steps. When
no provision is made for those most desperately in need, the government’s inac-
tion is unreasonable. The government must continually review its policies to
15
ensure that the achievement of the right is progressively realised.
• “Within available resources” means that the rate at which the goal is achieved
and the reasonableness of the measures employed, are governed by the availabil-
ity of resources. When resources are limited, rationing and prioritisation are
inevitable, but the rationing decisions on rations and priorities are subject to
16
judicial control. A lack of available resources because the organ of state involved
misunderstood its constitutional and statutory duties in respect of social rights is
________________________
12 Japhta v Schoeman; Van Rooyen v Stoltz 2005 1 BCLR 78 (CC), 2005 2 SA 140 (CC) para 34. See,
also, Governing Body of the Juma Musjid Primary School v Essay NO 2011 8 BCLR 761 (CC) para 31
(also referred to in para 3.2 below); Ngxusa v Secretary, Department of Welfare, Eastern Cape Provin-
cial Government 2000 12 BCLR 1322 (E) 1330. In the Japhta case the failure to provide judicial
oversight over sales-in-execution of the immovable property of judgment debtors in s 66(1)(a)
of the Magistrates’ Courts Act 32 of 1944 was declared to be unconstitutional. In Gundwana v
Steko Development CC 2011 8 BCLR 792 (CC), 2011 3 SA 608 (CC) the court held that it was un-
constitutional for a high court registrar to declare immovable property specially executable
when ordering a default judgment under rule 31(5) of the Uniform Rules of Court to the
extent that this permits the sale in execution of the home of a person. For a discussion of neg-
ative duties, see Dafel M “The negative obligation of the housing right: an analysis of the duties
to respect and protect” 2013 SAJHR 591–614.
13 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 21;
Minister of Health v Treatment Action Campaign 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC)
paras 32, 39.
14 Unless indicated otherwise, the guidelines are from Government of the RSA v Grootboom 2000 11
BCLR 1169 (CC), 2001 1 SA 46 (CC) paras 39, 41–42, 45–46.
15 Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC), 2010 4 SA 1 (CC) para 67.
16 Pieterse M “Health care rights, resources and rationing” 2007 SALJ 514 527.
not an excuse for failure to plan and budget properly and to provide the re-
quired services.17
The United Nations Committee for Economic, Social and Cultural Rights has
developed the minimum core obligation concept to describe the minimum
expected of a state to comply with its obligations under the International Covenant
on Economic, Social and Cultural Rights – “the floor beneath which the conduct of
18
the State must not drop if there is to be compliance with the obligation”.
In the Grootboom case, the Constitutional Court held that the minimum core obli-
gation concept can be used only if sufficient information is placed before a court to
enable it to determine what it means in a particular context. The court held that, in
that particular case, the information was insufficient. Using the concept was in any
case unnecessary, because “the real question in terms of our Constitution is whether
the measures taken by the State to realise right afforded by section 26 are reason-
19
able”. The court’s approach has been interpreted as turning the “reasonableness”
requirement in sections 26(2) and 27(2) into part of the first phase of the enquiry
during which the protective ambit of the right and its factual limitation are investi-
gated. This interpretation leads to difficulties to understand the application of
20
section 36 to non-compliance with the duties in sections 26(2) and 27(2). If these
requirements are considered to form part of the first stage of the enquiry, the ques-
tion arises whether it is “possible to find that a measure is reasonable within the
meaning of subsection 2 [of section 27] yet not reasonable and justifiable under
21
section 36(1), the limitation clause”. However, to the extent that the word reason-
ableness in these sections actually deals with the question whether a factual failure to
comply with the duty to provide services can be justified, it is a special limitation
22
provisions which fits in very well with section 36. It seems as if this is indeed the way
in which the Constitutional Court has (perhaps inadvertently) dealt with the social
rights provisions.
The first stage of a bill of rights enquiry entails that it must be determined whether
there has been non-compliance with the duties imposed by a particular right. In all
its decisions on the social rights thus far, the Constitutional Court has indeed paid
proper attention to the impact and effect of the state’s inaction on the conduct and
interests of the applicants that are protected by the other rights. The Constitutional
Court has referred to the effect of the state’s inaction on an applicant’s vital interest
23
in the continuation of his life, the dignity of applicants who lived “in desperate sub-
24
human conditions”, the lives and psychological integrity of newly-born babies and
________________________
17 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 BCLR
150 (CC), 2012 2 SA 104 (CC) para 74.
18 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 31. See
the various contributions in Brand D and Russel E (eds) Exploring the core content of socio-economic
rights: South African and international perspectives (2002).
19 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 33.
20 Bilchitz D “Towards a reasonable approach to the minimum core” 2003 SAJHR 1; Iles K
“Limiting socio-economic rights: beyond the internal limitation clauses” 2004 SAJHR 448.
(CC), 2004 6 SA 505 (CC) para 105.
22 Para 4.2 below; Dladla v Ctiy of Johannesburg 2018 2 BCLR 119 (CC), 2018 2 SA 622 (CC) paras
75, 76; Rautenbach IM “The right to access to sufficient water and the two-stage approach to
the application of the Bill of Rights” 2011 THRHR 114–119.
para 21.
24 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) paras 3, 9, 80.
See Brand D “Between availability and entitlement: The Constitution, Grootboom and the right
to food” 2003 (1) Law, Democracy and Development 9.
25
their enjoyment of all their other rights, and on the human dignity and other
26
needs of permanent residents who are excluded from certain social grants.
Thus, the court has confirmed indirectly that a useful way of defining the positive
duties (minimum core obligations) of these rights is to consider them as duties
not to infringe, the interests that individuals have in their lives, human dignity,
personal freedom and security and other interests protected by other rights through
inaction in respect of the provision of access to adequate housing, food, water,
health services and social services. For the purposes of this stage, non-compliance
of the state with the duties imposed by sections 26(2) and 27(2) is constituted
by the negative impact on other rights in the bill of rights of the state’s inaction to
provide access to adequate housing, health care services, food, water and social
27
security. The impact and effect of the state’s inaction for the purposes of the first
stage of the enquiry can be determined without asking whether the state’s inaction is
reasonable.
Once it has been established that these duties have been breached, one moves to
the second stage of the inquiry. Is there justification for non-compliance with the duties?
The onus is on the state to prove that it has taken “reasonable legislative and other
measures within its available resources to achieve the progressive realisation of the
28
rights”? As is indicated in paragraph 1.4 below, the way in which the court dealt
with the requirements in sections 26(2) and 27(2) amounts to the application of
special limitation clauses.
In respect of housing, section 26(3) of the Constitution guarantees that no one may
be evicted from her or his home, or have her or his home demolished, without a
court order made after consideration of all the relevant circumstances.
This right protects persons’ interests in the continuation of their occupation of their
homes. The Constitutional Court stated: “Section 26(3) evinces special
constitutional regard for a person’s abode. It acknowledges that a home is more
than a shelter from the elements. It is a zone of personal intimacy and family
security. Often it will be the only relatively secure space of privacy and tranquility in
29
what (for poor people in particular) is a turbulent and hostile world”. The word
“home” implies an element of regular occupation coupled with some degree of
permanence and it does not apply to “holiday cottages erected for holiday purposes
and visited occasionally over weekends and during vacations, albeit on a regular
________________________
25 Minister of Health v Treatment Action Campaign 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC)
paras 72, 73.
(CC), 2004 6 SA 505 (CC) para 82.
27 For a discussion of the refusal of the Constitutional Court to investigate the impact of insuffi-
cient or no provisions for sanitation in Nkotyana v Ekurhuleni Metropolitan Municipality 2010 4
BCLR 312 (CC) see Bilchitz D “Is the Constitutional Court wasting away the right of the poor?”
2010 SALJ 591. For a convincing argument that a right to sanitation can be regarded as an im-
plicit aspect of most other social rights, see Kamga SD “The right to basic sanitation: a human
right in need of constitutional guarantee in Africa” 2013 SAJHR 615-650.
28 Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC), 2010 (4) SA 1 (CC) para 71: “A reason-
ableness challenge requires government to explain the choices it has made. To do it, it must
provide the information it has considered and the process it has followed to determine its pol-
icy.” Contra Brand D “Food” in Woolman et al Constitutional Law of South Africa (2005) paras
56C.3(a) and 56C–8 fn 3.
29 Port Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC), 2005 1 SA 217 (CC)
para 17.
30
basis, by persons who have their habitual dwellings elsewhere”. “No one” in the
31
provision includes private lessees, and the provision applies to private relations.
In Malan v City of Cape Town the Constitutional Court held that a public authority may
not terminate without a good reason lease agreements with its housing tenants in need of
public housing in terms of a clause that either party may terminate the lease on one
month’s notice. This violates the tenant’s security of tenure. The housing tenants also
have a right to procedural fairness and the public authority must give them proper no-
32
tice and an opportunity to settle their arears. In Motswagae v Rustenburg Local Munici-
pality, the applicants refused to move out of their homes on land of the provincial
government on which a renewal programme could not be executed without demolish-
ing the homes. The municipality employed a contractor whose excavation work ex-
posed the foundations of the buildings occupied by the applicants. The Constitutional
Court held that an eviction does not consist only of expulsion from a home; it can also
33
consist of weakening or destroying incidents of occupation.
34
Section 26(3) also provides that no legislation may permit arbitrary evictions.
The Supreme Court of Appeal held that a statute which provides for the power to
issue an administrative order to vacate a building and for a criminal sanction in the
event of non-compliance with the order, does not amount to an “eviction” for the
35
purposes of section 26(3). The Supreme Court of Appeal held that the prohibition
on “arbitrary” evictions “requires and evaluation of the relationship between the
36
means employed, namely the eviction, and the end sought to be achieved”. These
requirements overlap with the requirements contained in the general limitation
clause. In Occupiers 51 Olivia Road v City of Johannesburg the Constitutional Court
invalidated section 12(6) of the National Building Regulations and Building Stan-
dards Act 103 of 1977, which compelled people to evacuate their homes on pain of
37
criminal sanction without a court order. The Constitutional Court held in various
decisions that evictions without reasonable engagement with the affected people are
________________________
30 Barnett v Minister of Land Affairs 2007 11 BCLR 1214 (SCA) paras 38, 39.
31 Brisley v Drotsky 2002 12 BCLR 1229 (SCA), 2002 4 SA 1 (SCA) paras 40, 81, 83. In this case
para 45, four judges held, in respect of the phrase “all the relevant circumstances”, that “as ei-
enaar is die verhuurder geregtig op besit. As die verhuurder nie ƌ reg op besit het nie en die
hof nie ƌ diskresie het om desnieteenstaande, ƌ uitsettingsbevel te weier nie, is die enigste rel-
evante omstandighede wat ƌ hof in ag mag neem die feit dat die eiser die eienaar is en die feit
dat die verweerder in besit is”. However, see Theewaterskloof Holdings (Edms) Bpk, Glaser Afdeling
v Jacobs 2002 3 SA 401 (LCC) 401 and ABSA Bank Ltd v Xonti 2006 5 SA 289 (C) 290.
32 Malan v City of Cape Town 2014 11 BCLR 1265 (CC), 2014 6 SA 315 (CC) paras 62–64, 69–70.
33 Motswagae v Rustenburg Local Municipality 2013 3 BCLR 271 (CC), 2013 2 SA 613 (CC) para 11.
34 See Pienaar L and Mostert H “Uitsettings onder die Suid-Afrikaanse grondwet: die verhouding
tussen artikel 25(1), artikel 26(3) en die uitsettingswet” 2006 TSAR 277 552. The Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, in giving effect to the
right in s 26(3), protects unlawful occupiers who reside on commercial property (City of Johan-
nesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 BCLR 150 (CC),
2012 2 SA 104 (CC) paras 1, 30), but the Act does not protect juristic persons and persons who
do have some form of dwelling or shelter on the premises (MC Denneboom Service Station CC v
Phayane 2014 12 BCLR 1421 (CC), 2015 1 SA 54 (CC) paras 16, 17).
35 City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 BCLR 643 (SCA) para 53.
36 City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 BCLR 643 (SCA) para 42. The court
referred to the statement of the Constitutional Court that “arbitrary deprivation of property”
in s 25 means that there must be sufficient reason for the deprivation and that it must be pro-
cedurally fair in First National Bank v CIR; First National Bank v Minister of Finance 2002 7 BCLR
702 (CC), 2002 4 SA 768 (CC) para 100.
37 Occupiers 51 Olivia Road v City of Johannesburg 2008 5 BCLR 475 (CC), 2008 3 SA 208 (CC) para
54.
38
unconstitutional. A policy scheme of Johannesburg that only provided temporary
emergency for occupiers evicted by the city and not by private parties was unconsti-
tutional because the source of an eviction is not relevant in determining the city’s
39
duties in respect of homeless people.
In respect of health care, section 27(3) provides that no one may be refused
emergency medical treatment.
In Soobramoney v Minister of Health, KwaZulu-Natal, the Constitutional Court
explained that the purpose of this right is to ensure that treatment is given in an
emergency at an existing emergency facility and that such treatment is not frustrated
by bureaucratic requirements or other formalities. An ongoing condition, such as
chronic renal failure which requires ongoing treatment, is not an emergency calling
for immediate remedial treatment. Section 27(3) does not apply to such instances.40
In this judgment, the court did not consider whether the state must introduce
emergency facilities where none exists, whether the state may be prevented from
41
closing existing facilities and whether this right binds private institutions. Oppelt
v Head: Health, Department of Health Provincial Administration: Western Cape involved
an instance of delayed medical treatment after the applicant sustained spinal
cord injuries that left him paralysed. In this case the duty not to cause harm by the
provincial health authorities was linked to the right in section 27(3) not to be
refused emergency medical treatment. The court held that the legal convictions of
the community demand that hospitals and health care practitioners must provide
proficient health care services to the public and that those who fail to do so must
42
incur liability.
1.4 Justification for non-compliance with duties (limitation of the rights)

The state may justify its non-compliance with its duties in terms of social rights
43
under limitation clauses.
Interference through positive action with access to adequate housing, sufficient food
and water, health care and social services is unconstitutional unless the interference
can be justified in terms of the general limitation clause in section 36.
For example, in Japhta v Schoeman; Van Rooyen v Stoltz, the Constitutional Court held
that sections 66(1)(a) and 67 of the Magistrates’ Court Act 32 of 1944, which per-
mitted the sale in execution of peoples’ homes because they have not paid their
________________________
38 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 115; Port
Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC), 2005 1 SA 217 (CC) para 39;
Abahlali Basemjondolo Movement SA v Premier of KwaZulu-Natal 2010 2 BCLR 99 (CC) para 121.
Occupiers of Erven 87 and 88 Berea v De Wet 2017 8 BCLR 1015 (CC), 2017 5 SA 346 (CC) paras
42, 45, 47, 49, 50, 54, 59, 62 contains guidelines on the application of the requirement in s
4(6) and (7) in Act 19 of 1998 that evictions must be just and equitable.
39 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 2012 2 BCLR 117 (CC),
2012 2 SA 104 (CC) paras 76, 79, 80, 95.
paras 22, 23.
41 See Liebenberg S “South Africa’s evolving jurisprudence on socio-economic rights: an effective
tool in challenging poverty” 2002 (2) Law, Democracy and Development 165.
42 Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2015 12 BCLR
1471 (CC), 2016 1 SA 325 (CC) para 53.
(CC), 2004 6 SA 505 (CC) paras 83, 107; E N v Government of the RSA 2007 1 BCLR 84 (D) para
28.
debts and did not have enough movable property to satisfy their judgment debts,
factually limit the right to access to adequate housing; that the right is important
because it is linked to human dignity; that the purpose of the limitation is to facili-
tate debt-collection, which is an important commercial purpose, but that, in the case
of debts of a trifling nature, the relationship between the purpose and the limitation
of the right was overbroad. The limitation was of such a nature that it permitted
sales in execution without judicial intervention. The collection of small debts was
not sufficiently important to allow existing access to housing to be terminated with-
out judicial intervention, especially where other less intrusive measures exist to
recover such debts.44
Interference by the state with the interests and conduct protected by social rights by
failure to provide access to adequate housing, sufficient food and water, health care
and social services is unconstitutional unless the state can prove that it has taken
“reasonable legislative and other measures within its available resources to achieve
45
the progressive realisation of the rights”.
After the complainants have proved that the stated have factually failed to perform
the duties imposed by the social rights, the state bears the onus to justify the non-
46
compliance with its duties.
The phrase “reasonable and other measures within its available resources to
achieve the progressive realisation of the rights” is a special limitation clause. It deals
with elements of the general limitation clause in respect of specific rights. As is
explained in chapter 18 paragraph 3 above, a special limitation clause qualifies or
47
merely repeats elements of the general limitation clause. “Reasonableness” in the
formulation of social rights must be applied within the framework of section 36.48
This has been articulated clearly in a separate judgment of the Constitutional Court
in 2017. In Dladla v City of Johannesburg it was said: “To determine whether a measure
is ‘reasonable’, it is necessary to thoroughly scrutinise any rights limitations it may
inflict. This must be done by a careful assessment coordinate with, and closely akin
to, that required by section 36(1)”.49 However, at least since 1997, the Constitutional
________________________
44 Japhta v Schoeman; Van Rooyen v Stoltz 2005 1 BCLR 78 (CC), 2005 2 SA 140 (CC) paras 31, 34,
39, 41, 49.
45 Ss 26(2), 27(2), 29(1)(b) of the Constitution.
46 Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC), 2010 4 SA 1 (CC) para 71: “A reason-
ableness challenge requires government to explain the choices it has made. To do it, it must
provide the information it has considered and the process it has followed to determine its pol-
icy.” MEC, Department of Welfare, Eastern Cape v Kate 2006 4 SA 478 (SCA) para 10: “[W]hat is
expected of an administration that has justifiable reasons for what appears to be unacceptable
delay in carrying out its functions are full and frank explanations that will enable a court to as-
sess their adequacy when determining whether the administration acted reasonably.”
47 When a special limitation clause qualifies s 36, the special limitation prevails. Dladla v Ctiy of
Johannesburg 2018 2 BCLR 119 (CC), 2018 2 SA 622 (CC) para 75: “Section 36(1) is subject to
the internal standard of reasonableness built into section 26(2).”
48 See Quinot G and Liebenberg S “Narrowing the band: administrative justice and socio-
economic rights jurisprudence in South Africa” in Liebenberg S and Quinot G Law and Poverty
(2012) 21 on the overlap of reasonableness requirements in social rights and right to adminis-
trative justice; and Rautenbach “The right to access to sufficient water and the two-stage ap-
proach to the application of the bill of rights” 2011 THRHR 107 114 on the overlap with the
general limitation clause.
49 Dladla v City of Johannesburg 2018 2 BCLR 119 (CC), 2018 2 SA 622 (CC) para 76; the reason-
ableness test requires the nature of the rights affected, the seriousness of the limitation and
the purpose of the limitation to be taken into account (paras 76–78).
Court without referring expressly to section 36, has been taking the matters referred
to in section 36 into account in applying the reasonableness test in section 26(2)
and section 27(2). The court has taken account of the nature of the rights affected
50
by the inaction of the state; the nature of the limitation and the extent to which the
51
rights were affected; the way in which the state when the state ejects people who
52
may become homeless; the reasons for (purpose of) the limitation through inac-
tion; the relation between the limitation and its purpose;54 and alternative means of
53
achieving the purpose.55 The way in which the factors in section 36(1)(a) to (e) have
been taken into account confirms that reasonableness requirements in sections
26(2) and 27(2) overlaps to such an extent with the general limitation clause that
there is little room for the application of the general limitation clause after the
conclusion has been reached that the state could not justify non-compliance with its
56
duties in terms of the reasonableness test in sections 26(2) and 27(2).
It is important to note that the overlap between these special limitation clauses
in the social rights and section 36 is not complete. Aspects not covered by
________________________
para 21; Government of the RSA v Grootboom 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) paras 3, 9–
10, 80, 83a; Minister of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5
SA 703 (CC) para 72; Khosa v Minister of Social Development; Mahlaule v Minister of Social Develop-
ment 2004 6 BCLR 569 (CC), 2004 6 SA 505 (CC) para 81.
para 25; Government of the RSA v Grootboom 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) – the re-
spondents offered no reason for not providing relief, which made it unnecessary to investigate
the relation between the limitation and its purpose and the existence of less restrictive means;
Minister of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC)
para 60; Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6
BCLR 569 (CC), 2004 6 SA 505 (CC) para 82.
52 Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2009 9 BCLR 847 (CC), 2010 3
SA 454 (CC) paras 116, 175, 229, 260, 304, 367 – eviction is a reasonable measure to facilitate a
housing development programme, but the eviction itself must also be reasonable. 51 Olivia
Road v City of Johannesburg 2008 5 BCLR 475 (CC), 2008 3 SA 208 (CC) paras 17–18 – s 26(2)
“obliges every municipality to engage meaningfully with people who would become homeless
because it evicts them”. Absence of meaningful engagement relates to the nature of a limita-
tion. In Law Society v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC) para 100
the court investigated how caps on the liability of the Road Accident Fund affected the right of
access to health services of the victims of road accidents.
para 21; Government of the RSA v Grootboom 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 41;
Minister of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC)
para 74; Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6
BCLR 569 (CC), 2004 6 SA 505 (CC) para 81.
para 26; Minister of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA
703 (CC) paras 57, 59; Khosa v Minister of Social Development; Mahlaule v Minister of Social Devel-
opment 2004 6 BCLR 569 (CC), 2004 6 SA 505 (CC) para 82.
paras 27, 32–35; Khosa v Minister of Social Development; Mahlaule v Minister of Social Development
2004 6 BCLR 569 (CC), 2004 6 SA 505 (CC) para 65. There is no need to limit the reasons why
the state has failed to take “reasonable legislative and other measures” to lack of “available
sources” or sufficient “progressive realisation” or the protection of other constitutional rights
as stated by Iles “Limiting socio-economic rights: Beyond the internal limitation clauses” 2004
SAJHR 448 and Woolman and Botha “Limitation” in Woolman et al (eds) Constitutional Law of
South Africa (1998) para 34.5(b)(ii).
56 Ngxusa v Secretary, Department of Welfare, Eastern Cape Provincial Government 2000 12 BCLR 1322
(E) 1334.
sections 26(2) and 27(2) must be dealt with in terms of section 36. Sections 26(2)
and 27(2) do not refer to the requirement that all limitations must be “in terms of
law of general application”.
Section 36(1) requires that a right may only be limited in terms of law of general ap-
plication. Opinions have been expressed that this requirement does not apply to
57
limitations in terms of sections 26(2) and 27(2). This is not correct. A state agency
who has not been assigned powers, functions and responsibilities in respect of the
field in which the failure to provide services occurs cannot be held accountable for
58
non-compliance with the positive duties in that field. If, however, there has been
such a legally valid assignment of powers, functions and responsibilities which involve
the exercise of a discretion on how to provide the service, that authorising statute constitutes
the law of general application in terms of which the state agency acted when it
exercised its discretion not to provide the service.
2 Children
2.1 General 445
2.2 The best interests of children 445
2.3 Other specific children’s rights 450
2.1 General
Section 28 of the Constitution guarantees a wide range of children’s rights. 59 Section
28(3) provides that the word “child” in section 28 means a person under the age of
18 years.
Children also have all the rights in the Bill of Rights that protect “everyone” and
60
“every citizen”. The South African Bill of Rights does not contain implicit maturity
requirements when “everyone” or “every citizen” is protected by a right. Youth and
immaturity may, however, play a role when the limitation of rights is considered.
The South African Constitution guarantees children’s rights because children are
not capable of defending their interests in the same way as adults; they are conse-
quently most often victims of adults who exploit, abuse and kill children. The sub-
sections of section 28 are quoted in the paragraphs below.
2.2 The best interests of children

Section 28(2) A child’s best interests are of paramount importance in every matter
concerning the child.
________________________
57 Ferreira N “Feasibility constraints and the South African bill of rights: fulfilling the Constitu-
tion’s promise in conditions of scarce resources” 2012 SALJ 274 287 states: “Such limitations
are not required to be in terms of law of general application.”
58 In HBR (Hola Bon Renaissance) Foundation v President of the RSA 2011 10 BCLR 1009 (CC) in
which the court turned down an application for direct access because there was no prospect to
succeed with an application for an injunction to force a municipal demarcation board to cre-
ate a new municipality where the demarcation has no power to create municipalities.
59 See also Kruger JM “The philosophical underpinnings of children’s rights theory” 2006
THRHR 436–453; Kruger JM “The protection of children’s rights in the South African Consti-
tution: Reflections on the first decade” 2007 THRHR 239–262.
BCLR 1429 (CC), 2014 2 168 (CC) para 38.
This provision contains a constitutionally entrenched right that is separate from
61
the other rights guaranteed in section 28(1). The right serves as a general standard
against which to test all law and conduct that affect children.62 The provisions of
63
section 28 are not merely interpretive or advisory guidelines, but enforceable rules.
The nature of the right is such that it binds private persons for the purpose of
applying section 8(1) of the Constitution.
Like all other rights, section 28(2) does not guarantee an absolute right.
When it conflicts with another right, its protection does not serve as an absolute
defence for the limitation of the other right. The matter must be dealt with by the
64
application of the general limitation clause in section 36. Although certain
provisions of the Hague Convention on Civil Aspects of International Child
Abduction (1980), as incorporated by Act 72 of 1996, could possibly limit the right
65
in section 28(2), the limitation could be justified in terms of section 36.
In B v M, the Witwatersrand high court gave a useful exposition of the term “best
interests”.66
• In respect of the word “best” “[t]wo distinctions are drawn: first between that
which is considered to be consonant with the child’s welfare and that which is
not; secondly between those interests which are more advantageous to the child
than others which are less advantageous. It may, of course, develop that a combi-
nation of factors – some neutral, some less advantageous, some more advanta-
geous and even some seemingly disadvantageous – may together approximate or
combine to form a child’s ‘best interests’”. The concept “interests” must be seen
within the context of all the rights in section 28, but taking into account that the
child’s interests are not limited to the rights in section 28.
• No priority is ascribed to any aspect of the child’s well-being, education, physical
or mental health, or spiritual, moral and social development or other interests. A
court must consider all factors.
• The child’s best interests are not the only factors to be considered.67 It is the most
important amongst many others that may affect the child. A child’s interests are
________________________
61 Minister for Welfare & Population Development v Fitzpatrick 2000 7 BCLR 713 (CC), 2000 3 SA 422
(CC) para 17; Sonderup v Tondelli 2001 2 BCLR 152 (CC), 2001 1 SA 1171 (CC) para 29; De
Reuck v Director of Public Prosecutions (WLD) 2003 12 BCLR 1333 (CC), 2004 1 SA 406 (CC) para
55; M v S 2007 12 BCLR 1312 (CC), 2008 3 SA 232 (CC) para 14.
BCLR 1429 (CC), 2014 2 168 (CC) para 69.
63 Centre for Child Law v Minister of Justice and Constitutional Development 2009 11 BCLR 1105 (CC),
2009 6 SA 632 (CC) para 25. See also the discussion by Ferreira S “The best interests of the
child: From complete indeterminancy to guidance by the Children’s Act” 2010 THRHR 201.
para 5, rejecting the contention in De Reuck v Director of Public Prosecutions (WLD) 2002 12 BCLR
1285 (W) paras 1, 45, 91 that the right in s 28(2) is the single most important factor to be con-
sidered when balancing competing rights and interests. See, also, Petersen v Maintenance Officer
2004 2 BCLR 205 (C), 2004 2 SA 56 (C) para 20; Laerskool Middelburg v Departementshoof, Mpu-
malanga 2003 4 SA 160 (T) 178; M v S 2007 12 BCLR 1312 (CC), 2008 3 SA 232 (CC) para 26;
Bekink B “Parental religious freedom and the rights and best interests of children” 2003
THRHR 246; Robinson JA “Reflections on the conflict of interests of children and parents”
2013 THRHR 400-420.
65 LS v AT 2000 2 BCLR 152 (CC), 2001 1 SA 1171 (CC) paras 30–34.
66 B v M 2006 9 BCLR 1034 (W) paras 142–163.
67 See also M v S 2007 12 BCLR 1312 (CC), 2008 3 SA 232 (CC) para 25.
the product of a multiplicity of other factors which include the interests of other
persons, communities and even the state. Formulation of the “best interests” of
children must have regard to the best interests of family relationships in particu-
lar, and to society generally.
• The interpretation and application of best interest standards involves a discretion
for the person, institution or organisation to choose between various options.
• The best-interest principle must be applied in a way that does not create negative
effects on a discriminatory basis, for example, gender discrimination, or unjusti-
fied limitations of the right to freedom of movement of primary caregivers.
The South African courts have applied section 28(2) to various situations.
Adoption (a) Excluding partners in permanent same-sex life partnerships from
adopting children where such partners would otherwise be suitable to adopt chil-
dren conflicts with the right in section 28(2) and with the right to family or parental
68
care in section 28(1)(b).
(b) A decision relating to the rescission of an adoption order or an appeal against
69
any such decision must give primacy to the right in section 28(2).
(c) Although the appropriate route for inter-country adoption is to follow the
adoption proceedings in the children’s court and not to pursue a sole custody and
guardianship order in the high court, the Child Care Act 74 of 1983 should not be
interpreted as excluding completely a high court’s jurisdiction to grant sole custody
and guardianship orders to foreigners who want to adopt a child. However, this does
not mean that approaching the high court becomes an alternative route in every
case. The emphasis is on the best interests of the particular child. Although it is
preferable that a child should be placed with adoptive parents that reside in the
child’s country of birth, the best interests of the child may indicate that an inter-
70
country adoption be permitted.
Abortion Permitting women under 18 to have a pregnancy terminated without
parental consent or control in the Choice on Termination of Pregnancy Act 92 of
1996 is not inconsistent with section 28(2), because the requirement of “informed
consent” ensures that the individual intellectual, psychological and emotional state
71
of a woman is taken into account.
Criminal law The Constitutional Court provided the following reasons for its
conclusions that the right in section 28(2) was limited factually by the imposition of
criminal liability for a wide range of consensual sexual activities provided for in
sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters)
72
Amendment Act Criminal liability could, at worst, lead to imprisonment, and at
best, to measures that would force adolescents “to disclose and have scrutinised
details of his or her intimate affairs” and “all because he or she engaged in
developmentally normative conduct”. By the time the discretion not to prosecute is
exercised, the adolescents involved may already have been investigated, arrested and
questioned by the police. In applying the general limitation clause, the court paid
________________________
68 Du Toit v Minister for Welfare and Population Development 2002 10 BCLR 1006 (CC), 2003 2 SA
198 (CC) para 22.
69 T v C 2003 2 SA 298 (W).
70 AD v DW 2008 4 BCLR 359, 2008 3 SA 183 (CC).
71 Christian Lawyers Association v National Minister of Health 2004 10 BCLR 1086 (T) 1105.
BCLR 1429 (CC), 2014 2 168 (CC) paras 72–77, 83.
special attention to the nature and extent of the limitation to the fact that children
are involved.
Criminal procedure (a) Although children may be arrested, the best interests of chil-
dren are now essential consideration when powers of arrest and detention are
73
exercised in terms of the Criminal Procedure Act 51 of 1977.
(b) In M v S, the Constitutional Court considered what the duties of a sentencing
court are in the light of the provisions of section 28(2) when the person sentenced is
74
the primary caregiver of minor children. The court held that the basic considera-
75
tions in sentencing convicted persons as formulated in S v Zinn (the nature of the
crime, the personal circumstances of the accused and the interests of the commu-
nity) must still be followed. However, in order to find a balance between the state’s
constitutional duty to protect society by prosecuting crime and the ideal of maintain-
ing the integrity of family life in the best interests of children, a sentencing court
76
must follow the following steps:
• A sentencing court must determine whether a convicted person is a primary
caregiver. For the purposes of section 28 a primary caregiver is “the person with
whom the child lives and who performs everyday tasks like ensuring that the
77
child is fed and looked after and that the child attends school regularly”.
• A probation officer’s report is not always needed to determine this. The con-
victed person may be asked for information and if the presiding officer has rea-
son to doubt the correctness of the answer, the convicted person could be asked
to lead evidence to establish the facts. The prosecution must provide what infor-
mation it can.
• If on the Zinn approach the appropriate sentence is clearly custodial and the
convicted person is a primary caregiver, the court must decide whether it is nec-
essary to take steps to ensure that the children will be adequately cared for while
the caregiver is incarcerated.
• If the appropriate sentence is clearly non-custodial, the court must determine the
appropriate sentence, bearing in mind the interests of the children.
• If there is a range of appropriate sentences, the court must use the paramountcy
of the interests of the child as an important guide in deciding which sentence to
impose.
(c) In Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional
Development, the Constitutional Court dealt extensively with the position of children
as witnesses in court proceedings. In confirming the validity of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which
________________________
73 Raduvha v Minister of Safety and Security 2016 10 BCLR 1253 (CC), 2016 SACR 540 (CC) paras
48-53, 67-70. The court held that in this case the police officers did not care whether the per-
son concerned was a child or not, that the high court did not consider the evidence through
the lens of section 28(2) (para 48–53) and that the detention was not a measure of last resort
as required by s 28(1)(g) of the Constitution.
74 M v S 2007 12 BCLR 1312 (CC), 2008 3 SA 232 (CC). See also S v S 2011 7 BCLR 740 (CC),
2011 2 SACR 88 (CC) para 22; Moyo A “Balancing the best interests of the child and the inter-
ests of society when sentencing youth offenders and primary caregivers in South Africa” 2013
SAJHR 314–350.
75 1969 2 SA 537 (A) 540.
76 M v S 2007 12 BCLR 1312 (CC), 2008 3 SA 232 (CC) para 36.
introduced certain amendments to the Criminal Procedure Act 51 of 1977, the court
78
provided the following guidelines:
• The best interests of the child demand that children should be shielded from the
trauma that may arise from giving evidence in criminal proceedings.
• Section 170A(1) provides that when a court is made aware, during criminal
proceedings, that a witness under the biological or mental age of 18 years would
be exposed to “undue mental stress or suffering” if he or she testifies, the court
may appoint a competent person as an intermediary through whom the witness
will testify. The child must be assessed prior to testifying in court. If nobody else
raises the issue of the appointment of an intermediary, a presiding judicial offi-
cer must raise it. No rules concerning burden of proof applies; it is “an enquiry
that is conducted on behalf of the interests of a person who is not a party to the
proceedings but who possesses constitutional rights”.
• Sections 153(3) and 153(5) deal with holding proceedings in camera. Section
153(3) provides that the public may be excluded from criminal proceedings re-
lating to a charge of any sexual offence or any of the offences mentioned in sec-
tion 153(3), upon the request of the complainant or the guardian or parent of a
minor complainant. The decision to exclude the public lies with the court. Sec-
tion 153(5) deals with other child witnesses, and places the discretion to hold
proceedings in camera solely in the hands of the court. By contrast, proceedings
involving an accused child are always in camera.
• Reasons must be given for decisions in connection with allowing the use of
closed circuit television or the appointment of intermediaries.
(d) The Constitutional Court invalidated sections 51(1) and (2) of the Criminal
Law Amendment Act 105 of 1997 as amended by the Criminal Court (Sentencing)
Amendment Act 38 of 2007 to the extent that they imposed a minimum sentencing
79
regime on 16- and 17-year old offenders in scheduled categories of crime. The
court held that the amendment factually limited the right in section 28(2) because a
minimum sentencing system is not compatible with the imposition of an individually
appropriate sentence. The nature of minimum sentences is to reduce the courts’
power of individuation by directing the court away from other options at the start of
the sentencing process. The court’s discretion is limited because it must impose the
minimum sentence and may deviate only in rare circumstances. The state con-
tended that the purpose of the limitation was to counter the impact of scheduled
crimes committed by 16- and 17-year olds, but the state did not provide any facts
from which the legitimacy of the purpose and the extent to which the limitation
would serve the purpose could be assessed.
(e) The compulsory inclusion on the National Register for Sex Offenders of par-
ticulars of children convicted of a sexual offence against another child or mentally
80
disabled person violated the right in section 28(2). The factual limitation was
not justifiable. The purpose of the limitation to protect children and persons
with mental disabilities from sexual abuse is a legitimate and important purpose.
________________________
78 Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development 2009 7
BCLR 637 (CC), 2009 4 SA 222 (CC) paras 97, 109, 110, 112, 114 and 159.
79 Centre for Child Law v Minister of Justice and Constitutional Development 2009 11 BCLR 1105 (CC),
2009 6 SA 632 (CC).
80 As provided for in s 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007.
However, patterns of recidivism for sexual offence may not be the same for adults
and children and the nature of the limitation (automatic registration) was such that
it could not always achieve the purpose for child offenders. There were less restric-
tive ways to achieve the purpose and to establish a better relation between the limita-
tion and its purpose. Courts could be afforded a discretion to order registration and
the child offender could be provided with an opportunity to lead evidence and
present arguments.81
Education (a) A court granting an eviction order against the state for the removal of
a public school on private property must take the best interests of the learners in
terms of section 28(2) into account.82
(b) Although the word “parent” in section 40(1) of the South African Schools Act
84 of 1996, in respect of responsibility for school fees, could be interpreted restric-
tively to mean only “custodian parent”, section 28(2) requires the word to be inter-
preted to include parents who are not custodian parents because it is in the best
interests of a child that a non-custodian parent who is unwilling yet has the means to
pay his child’s school fees would be made to do so, if necessary, by the injunction of
83
an order of a competent court.
(c) School policies that provide for the automatic exclusion of any learner from the
school when she gets pregnant are rigid and do not provide school authorities with
an opportunity to consider and promote the best interests of the children con-
cerned as required by section 28(2). The court did investigate the justifiability of the
factual limitation in terms of limitation clauses and ordered that the policies be
84
reviewed in the light of the court’s analysis.
Forfeiture of property When orders or forfeiture are considered in respect of property
on which children are accommodated, section 28(2) requires that the way in which
the children may be affected, must be considered in a separate enquiry in addition
to issue of whether the purposes of the forfeiture are proportionate to the limitation
85
of the rights to property.
2.3 Other specific children’s rights

Section 28(1)(a) Every child has a right to a name and a nationality from birth.
This right ensures that every child has a legal identity. Various provisions of the
Children’s Act 38 of 2005 give effect to this right.
Section 28(1)(b) Every child has the right to family care or parental care, or to
86
appropriate alternative care when removed from the family environment.
________________________
81 J v National Director of Public Prosecutions 2014 7 BCLR 764 (CC) paras 47–50.
82 Governing Body of the Juma Musjid Primary School v Essay NO 2011 8 BCLR 761 (CC) paras 67–71.
83 Fish Hoek Primary School v GW 2010 4 BCLR 331 (SCA) para 14.
High School 2013 9 BCLR 989 (CC) paras 4, 108.
85 Van der Burg v NDPP 2012 8 BCLR 881 (CC) paras 69, 70.
86 The court in Jooste v Botha 2000 2 BCLR 187 (T) 196E, 2000 2 SA 199 (T) 208G held that “care”
does not include the care of the non-custodian parent. This conclusion has been criticised ex-
tensively. In Heystek v Heystek 2002 2 SA 754 (T) 757, it was stated that “[t]he constitutional no-
tion of parental care and the paramountcy of the best interests of the child require an
attitudinal shift from an antiquated Germanic parent and child relationship, which formed the
substratum of the common law, to the rights of the child, which includes parental care and
family care”. See, on s 30(1)(b) of the Interim Constitution, SW v F 1997 1 SA 796 (O) 802.
The Constitutional Court held that the duties in respect of the right to family and
parental care rest primarily on those parents who can afford to provide such care. A
primary caregiver is the person with whom the child lives and who performs
everyday tasks like ensuring that the child is fed and looked after and that the child
87
attends school regularly. However, this does not mean that the state has no duties
in respect of children being cared for by their parents. The state must provide the
legal and administrative infrastructure to ensure that children are cared for even
when are in the care of parents and other caregivers. This is normally done by
passing laws and creating enforcement mechanisms for the maintenance of children
88
and for their protection from maltreatment, abuse, neglect or degradation. In this
context, the Constitutional Court held that the maintenance courts are important
instruments in giving effect to the rights of children and that failure to ensure the
89
effective operation of these courts amounts to failure to protect children. The
Constitutional Court also ordered the government to implement programmes in all
state health institutions to combat mother-to-child HIV-transmission because it is
most often beyond the means of the parents of children born in public hospitals and
90
clinics to pay for private medical treatment. “Appropriate alternative care when
removed from the family environment” is not an alternative for either family care or
parental care. This means firstly, that appropriate alternative care only becomes
relevant when there has been a constitutionally valid removal, and secondly, that
providing appropriate alternative care does not “necessarily render a removal
91
constitutionally compatible with the primary right to family or parental care”.
Section 28(2)(c) Every child has the right to basic nutrition, shelter, basic health-
care services, and social services.
The Constitutional Court held that section 28(1)(c) does not create any primary
state duty to provide shelter on demand to parents and the children in their care;
the state’s duties in such instances are regulated by the rights to access to housing,
92
health care, food, water and social security in sections 26 and 27. However, the
93
state must enable parents and family members to care for the children and the
state’s duties apply where children are with their parents and families but no proper
care exists because the parents and families are themselves dependent on the state.94
Furthermore, the duties of the state in terms of section 28(1)(c) are unconditional,
unlike the positive duties in terms of sections 26 and 27 which are qualified to the
extent that the state has only to take “reasonable” measures “within its available
resources” to achieve “progressive” realisation of the rights.
________________________

88 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) para 78.
89 Bannatyne v Bannatyne 2003 2 BCLR 111 (CC), 2003 2 SA 363 (CC) para 28.
90 Minister of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC)
paras 77–79.
91 C v Department of Health and Social Development Gauteng 2012 4 BCLR 329 (CC), 2012 2 SA 208
(CC) para 24. In judgments in this case the overlap between the right to parental care in
s 28(1)(b) and the right to access to courts in s 34 of the Constitution were approached differ-
ently. For a discussion of these approaches and suggestions on a new approach, see Rauten-
bach IM “Die samehang van die reg op gesin- of ouerlike sorg en die reg op toegang tot die
howe” 2012 TSAR 559, 574.
92 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) paras 76–78.
93 Bannatyne v Banatyne 2003 2 BCLR 111 (CC), 2003 2 SA 363 (CC) para 24.
94 Minister of Health v Treatment Action Campaign (1) 2002 10 BCLR 1033 (CC), 2002 5 SA 703 (CC)
para 79.
Section 28(1)(d) Every child has the right to be protected from maltreatment,
neglect, abuse or degradation.
Various provisions of the Child Care Act 74 of 1983 gives effect to this right and so
do the application to children of the rights in section 12 to physical and
psychological integrity.95
Section 28(1)(e) Every child has the right to be protected from exploitative labour
practices.
Section 28(1)(f) Every child has the right not to be required or permitted to
perform work or provide services that are inappropriate for a person of that child’s
age or which place at risk the child’s well-being, education, physical or mental
health, or spiritual, moral, or social development.
Provisions of the Basic Conditions of Employment Act 75 of 1997 and the Child
Care Act 74 of 1983 give effect to the rights in sections 28(1)(e) and section
28(1)(f).
Section 28(1)(g) Every child has the right not to be detained except as a measure of
last resort, in which case, in addition to the rights the child enjoys under sections 12
and 35 of the Constitution, the child may be detained only for the shortest
appropriate period of time and has the right to be (i) kept separately from other
detained persons over the age of 18 years and (ii) treated in a manner, and kept in
conditions, that take account of the child’s age.
Section 28(1)(g) embraces pre-trial detention, pre-conviction detention and
96
custodial sentencing after conviction. The right does not prohibit the incarceration
of children under certain circumstances.97
Section 28(1)(h) Every child has the right to have a legal practitioner assigned to the
child by the state, and at state expense, in civil proceedings affecting the child, if
98
substantial injustice would otherwise result.
Where there is a risk of injustice, a court is obliged to appoint a curator to represent
99
the interests of the children involved.
In Legal Aid Board v R it was pointed out that the Legal Aid Board has the power,
in terms of section 3 of the Legal Aid Act 22 of 1969, to render legal assistance to a
100
child in discharge of the state’s duty in terms of this right.
Section 28(1)(i) Every child has the right not to be used directly in armed conflict,
101
and to be protected in times of armed conflict.
The duties of the state in respect of children’s rights in section 28 include ensuring
that parents fulfil their responsibilities. The state must use legislation and the
________________________
95 In eg S v Wiliams 1995 7 BCLR 861 (CC), 1995 3 SA 632 (CC) and Christian Education SA v
Minister of Education 2000 10 BCLR 1051 (C), 2000 4 757 (CC).
96 S v Nkosi 2002 1 SA 494 (W) 502–503.
97 Director of Public Prosecutions v P 2006 3 SA 515 (SCA) para 19.
98 See Centre for Child Law v Minister of Home Affairs 2005 6 SA 50 (T) in respect of unaccompa-
nied foreign children who are detained for deportation purposes and Soller NO v G 2003 5 SA
430 (W) 438.
99 Du Toit v Minister for Welfare and Population Development supra para 3; AD v DW 2008 4 BCLR
359 (CC), 2008 3 SA 183 (CC) para 11.
100 Legal Aid Board v R 2009 2 SA 262 (DCLD) para 3.
101 See Robinson JA “International humanitarian and human rights law pertaining to child
civilians in armed conflict: an overview” 2002 THRHR 186.
common law to impose duties upon parents to care for their children, and must,
through the use of civil and criminal law as well as social welfare programmes,
reinforce the observance of these duties.102
3 Education
3.1 Section 29 453
3.2 The right to education 453
3.3 Language in education 455
3.4 Independent educational institutions 456
3.1 Section 29
29(1) Everyone has the right – (a) to a basic education, including adult basic educa-
tion; and (b) to further education, which the state, through reasonable measures, must
progressively make available and accessible.
(2) Everyone has the right to receive education in the official language or languages
of their choice in public educational institutions where that education is reasonably
practicable. In order to ensure the effective access to, and implementation of this
right, the state must consider all reasonable educational alternatives, including single
medium institutions, taking into account – (a) equity; (b) practicability; and (c) the
need to redress the results of past racially discriminatory laws and practices.
(3) Everyone has the right to establish and maintain, at their own expense, inde-
pendent educational institutions that – (a) do not discriminate on the basis of race;
(b) are registered with the state; and (c) maintain standards that are not inferior to
standards at comparable public educational institutions.
(4) Subsection (3) does not preclude state subsidies for independent educational
institutions.
3.2 The right to education103

The right protects the human interests in acquiring and increasing one’s knowledge
and skills and in developing all of one’s abilities.
The right provides a foundation for lifetime learning and work opportunities and it
is “directed, amongst other things at promoting and developing a child’s
personality, talents, and mental and physical abilities to his or her full potential”.104
The Supreme Court of Appeal stated that to study is inherent to human dignity “for
without it a person is deprived of the potential for human fulfilment”.105 Referring to
a variety of international and South African sources, Seleoane concludes that “basic”
education is from grade one to grade nine.106
________________________
102 Government of the RSA v Grootboom 2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC) paras 75, 77,
79.
103 See Malherbe EFJ “Reflections on the background and contents of the education clause in
the South African bill of rights” 1997 TSAR 85; Seleoane M “The right to education: lessons
from Grootboom” 2003 (1) Law, Democracy and Development 137; Visser PJ “Some thoughts on
the implementation of the fundamental right to education and rights in education in South
Africa” 2005 THRHR 400–415; Van der Vyver “Constitutional protection of the right to edu-
cation” 2012 SA Public Law 326. Aspects of s 32 of the Interim Constitution were considered
in In re The School Education Bill of 1995 (Gauteng) 1996 4 BCLR 537 (CC); Ex Parte Gauteng
Provincial Legislature: in re Dispute concerning the Constitutionality of Certain Provisions of the Gau-
teng School Education Bill of 1995 1996 3 SA 165 (CC), 1996 3 SA 165 (CC) and Matukane v
Laerskool Potgietersrus 1996 3 SA 223 (T).
104 Governing Body of the Juma Musjid Primary School v Essay NO 2011 8 BCLR 761 (CC) para 43.
105 Minister of Home Affairs v Watchenuka 2004 2 BCLR 120 (SCA), 2004 4 SA 326 (SCA) para 36.
106 Seleoane M “The right to education: lessons from Grootboom” 2003 (1) Law, Democracy and
Development 137; 144.
107
All natural persons are bearers of the right; the nature of the right is such that
juristic persons cannot be its bearers.
All organs of state are bound by the right.108
Although the duties imposed by the right need not be exactly the same for organs of
state and private individuals respectively, the nature of the right is such that it may
bind private persons who owe a duty of care toward children by virtue of the right of
a child in section 28(1)(b) to family or parental care.
The provision of educational opportunities comprises a key aspect of “care” in this
right. In Governing Body of the Juma Musjid Primary School v Essay NO, the
Constitutional Court held that the nature of the right in section 29(1)(a) is such
that a private landowner owner has no primary positive obligation to provide basic
education on its property to learners, nor to make its property available to be used
as a public school. The landowner may do so in terms of an agreement with the
state. However, private persons have a negative duty not to interfere with or
diminish the enjoyment of the right; “[b]reach of this duty occurs directly when
there is a failure to respect the right, or indirectly, when there is a failure to prevent
the direct infringement of the right by another or the failure to respect the existing
protection of the right by taking measures that diminish that protection”. A private
landowner, who in terms of an agreement allows a school to be conducted on his or
her premises, has a constitutional obligation when terminating the agreement to
minimise the impairment of the learners’ right to basic education; in this respect he
or she must act reasonably.109
The right to education imposes on those bound by the right negative duties not to
interfere with the educational processes in which bearers of the right are involved,110
but also, and in particular, positive duties to provide access to, means, facilities and
support for basic and further education. Although the right to “basic education,
including adult basic education” is not qualified in the text of the provision, the
right may be limited if the requirements of section 36 are complied with. In Thuk-
wane v Minister of Correctional Services, a provincial court held that education pro-
grammes prohibiting prisoners from following courses requiring compulsory access
to the internet or attendance at locations outside prison are justifiable limitations of
111
the right of prisoners to further education. In Tshona v Principal, Victoria Girls High
School, it was held that the expulsion of a learner from a school hostel does not entail
the expulsion of the learner from the school and therefore does not
________________________
107 In Minister of Home Affairs v Watchenuka 2004 2 BCLR 120 (SCA), 2004 4 SA 326 (SCA) it
was held that a foreign child who is lawfully in the country to seek asylum is bearer of the
right.
108 Governing Body of the Juma Musjid Primary School v Essay NO 2011 8 BCLR 761 (CC) para 45; the
court stated in para 51: “By not providing a public school and failing to ensure that there are
enough places available in the affected areas, as required by section 3(3) of the [South Afri-
can Schools Act 84 of 1996], and simply informing the High Court that there are no other
schools to absorb the learners, the MEC failed to discharge her constitutional obligation, to
‘respect, promote and fulfil’ the learners’ right to basic education.”
109 Governing Body of the Juma Musjid Primary School v Essay NO 2011 8 BCLR 761 (CC) paras 57,
58, 60 and 62.
110 Contra Seleoane M “The right to education: lessons from Grootboom” 2003 (1) Law, Democ-
racy and Development 137, 142.
111 Thukwane v Minister of Correctional Services 2003 1 SA 51 (T). For a discussion of the constitu-
tionality of various limitation of the right to education of prisoners, see Le Roux-Bouwer J
and Matsemela OP “A critical perspective on inmates’ right to tertiary distance education in
South Africa” 2017 THRHR 450–462.
112
violate a learner’s right to education in the Constitution. In Head of Department,
Department of Education, Free State Province v Welkom High School / Harmony High School
the Constitutional Court considered school policies that provided for the automatic
exclusion of any learner from the school when she gets pregnant. The court held
that the policies factually limited the right to basic education in section 29 because
they required pregnant learners to repeat at least one year of schooling. The court
113
ordered that the policies be reviewed in the light of the court’s analysis.
3.3 Language in education

Section 29(2) provides: Everyone has the right to receive education in the official
language or languages of her or his choice in public educational institutions where
that education is reasonably practicable; to implement the right, reasonable
educational alternatives must be considered, including single-medium institutions,
taking into account equity, practicability, and the need to redress the results of past
114
racial discrimination.
The right applies to every situation in which a learner is taught in public institu-
tions115 including state universities.116 The power to decide which language or lan-
guages should be the language or languages of instruction vests with the bearers of
the right or, subject to incidents of the exercise of parental authority, with parents
and persons in loco parentis.
Section 29(2) does not create a right to single-medium institutions.117 The Su-
preme Court of Appeal held that the right in section 29(2) is not a right “to be
instructed at each and every public educational institution subject only to it being
reasonably practicable to do so” at a particular institution. It did not, for example,
entitle “a group of Afrikaans learners . . . to claim to be taught in Afrikaans at an
English medium school immediately adjacent to an Afrikaans medium school which
has vacant capacity provided that they can prove that it would be reasonably practi-
118
cable to provide education in Afrikaans at that school”. This means that to deter-
mine what is “reasonably practicable” at a particular school, includes the possibility
that the right in section 29(2) can be exercised in an adjacent school.
A well-run double-medium institution does not impede the right to receive
education in the language of one’s choice when there is a clear need to accom-
119
modate more than one linguistic or cultural group in the same institution.
________________________
112 Tshona v Principal, Victoria Girls High School 2007 5 SA 66 (ECD) 73F.
High School 2013 9 BCLR 989 (CC), 2014 2 SA 228 (CC) paras 4, 114, 108.
114 See Malherbe EFJ “A constitutional perspective on equal educational opportunities” 2004
TSAR 438–442; Malherbe EFJ, “Taalregte in Suid-Afrikaanse skole: (tydelike) verligting van
onverpoosde druk” 2006 TSAR 190; Visser PJ “Education law – language policy at single-
medium public school – section 29(2) of the Constitution – irregular interference by provin-
cial education department” 2006 THRHR 333.
115 Laerskool Middelburg v Departementshoof, Mpumalanga 2003 4 SA 160 (T) 176.
116 Afriforum v University of the Free State 2018 4 BCLR 387 (CC), 2018 2 SA 185 (CC).
117 Malherbe EFJ “Taalregte in Suid-Afrikaanse skole: (tydelike) verligting van onverpoosde
druk” 2006 TSAR 192.
118 Western Cape Minister of Education v Governing Body of Mikro Primary School 2005 10 BCLR 973
(SCA), 2006 1 SA 1 (SCA paras 32, 33. See Visser PJ “Education law – language policy at sin-
gle-medium public school – section 29(2) of the Constitution – irregular interference by pro-
vincial education department” 2006 THRHR 333–341.
119 Laerskool Middelburg v Departementshoof, Mpumalanga 2003 4 SA 160 (T) 173.
Section 29(2) requires that when a school governing body formulates a school
language policy, the focus may not only be on the interests of its own learners, but
the interests of the community in which the school is located and the needs of other
120
learners in the community must also be taken into account. The Constitutional
Court stated that at a conceptual level, dual medium institutions might well exist
without nurturing or perpetuating unfair advantage or racial discrimination; all
121
aspects of a dual language programme must comply with the right to equality.
When learners already enjoy the benefit of being taught in an official language of
choice the state has a duty not to take away or diminish the right without justifica-
122
tion. The rights of learners are diminished factually when a multilingual language
policy of an institution is replaced with a single language policy.
Interference by the state with the choice of language must comply with requirements
123
for the limitation of the right.
Section 29(2) specifies a number of limitation considerations. A purpose for the
limitation of the free choice could be that it is not “reasonably practicable” to allow a
particular free choice. The Constitutional Court stated that what is “reasonably
practicable” depends on all the relevant circumstances including the availability of
and accessibility to public schools, their enrolment levels, the medium of instruction
the school governing body has adopted, the language choices learners and their
124
parents make and the curriculum options available at the school. The court also
held that all the parts of section 29(2) must be taken into account to determine
reasonable practicability. When the “reasonable practicability” of alternatives to give
effect to this right is considered, the equity and need to redress the result of
discrimination in the past must feature. The criterion of reasonable practicability
125
will not have been met if access, integration and racial harmony are imperilled.
3.4 Independent educational institutions
Everyone has the right to establish and maintain, at her or his own expense, in-
dependent educational institutions which do not discriminate on the basis of race,
are registered with the state, and maintain standards that are not inferior to stan-
dards at comparable public educational institutions. This provision does not pre-
126
clude state subsidies for independent educational institutions.
________________________
120 Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo 2010 3 BCLR 177
(CC), 2010 2 SA 415 (CC) paras 99, 100.
121 Afriforum v University of the Free State 2018 4 BCLR 387 (CC), 2018 2 SA 185 (CC) paras 51, 52.
(CC), 2010 2 SA 415 (CC) para 52.
(CC), 2010 2 SA 415 (CC) para 52.
(CC), 2010 2 SA 415 (CC) para 52. For a discussion of this judgment, see Malherbe EFJ “Taal
in skole veroorsaak nog ’n slag hoofbrekens” 2010 TSAR 609.
125 Afriforum v University of the Free State 2018 4 BCLR 387 (CC), 2018 2 SA 185 (CC) paras 45, 48,
50, 52. In this case the court accepted the correctness of the university’s own assessment that
its previous dual medium policy led to segregation and racial tension, and that there was no
reasonably practicable alternative than the introduction of a single language policy, except in
Education, Theology and tutorials (paras 4–62). The minority of four judges thought that it
would be better to allow the university to present evidence on the extent of the racial dis-
crimination by students and teaching staff in the parallel Afrikaans medium programmes, on
the steps it took to address the racial discrimination, and if no measures were taken, the rea-
sons for not doing so (paras, 68, 72, 126).
126 S 29(3) and (4). See Woolman S “Defending discrimination: on the constitutionality of
independent schools that promote a particular, if not comprehensive, vision of the good life”
4 Language, culture, and cultural, religious and linguistic

communities
4.1 Section 30 and 31 457
4.2 The rights 457
4.1 Sections 30 and 31

30 Everyone has the right to use the language and to participate in the cultural right
of their choice, but no one exercising these rights may do so in a manner inconsistent
with any provision of the Bill of Rights.
31(1) Persons belonging to a cultural, religious or linguistic community may not be
denied the right, with other members of that community – (a) to enjoy their culture,
practice their religion, and use their language; and (b) to form, join and maintain cul-
tural, religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with
any provision of the Bill of Rights.
4.2 The rights

Section 30 of the Constitution provides that everyone has the right to use the
language and to participate in the cultural life of her or his choice.
The right protects the inherent human characteristic to use language as a means of
communication and the human capacity to live in an environment of tangible
artefacts and art and spiritual products. The statement of O’Regan J in Minister of
Education: KwaZulu-Natal v Pillay that “culture” in section 30 refers only to “the way
of life of a particular community” and not to, for example, the arts, handicraft, popular
127
television, film and radio is too narrow. Culture can be exercised by single
individuals. The right does not only protect an individual’s cultural “associations”,
but also cultural life as an individualistic phenomenon.
Section 31(1) provides that persons belonging to a cultural, religious or linguistic
community have the right, with other members of their community, to enjoy their
culture, practise their religion, use their language, and to form, join and maintain
cultural, religious and linguistic associations and other institutions.
Section 31 protects the collective exercise of cultural, religious and linguistic
interests.
Section 31 deals with the associative aspects of language, culture and religion. The
right in section 30 recognises and respects the multi-lingual and multi-cultural
nature of the South African society 128 in both a communal and individual context. In
MEC for Education KwaZulu-Natal v Pillay it was stated that the right recognises “that
individuals draw meaning and their sense of cultural identity from a group with
129
whom they share cultural identity and with whom they associate”. The interests
protected by the right are manifestations of the general right to freedom of associa-
tion in section 18.130
________________________
2007 Stell Law R 31–52. See, in respect of s 32(c) of the Interim Constitution, Wittmann v
Deutscher Schulverein, Pretoria 1999 1 BCLR 92 (T), 1998 4 SA 423 (T).
127 Minister of Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC) para 149. Emphasis added.
128 Christian Education SA v Minister of Education 2000 10 BCLR 1051 (CC), 2000 4 SA 757 (CC)
para 25.
129 Minister of Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC) para 144.
All natural persons are bearers of the right, as are juristic persons, to the extent that
they use languages of communication and are involved with cultural, religious and
language matters.
The right binds all organs of state. Its nature and the duties it imposes are such that
it also binds private persons.
Subject to limitation that complies with the general limitation clause, the right prohib-
its interference with the right. The state’s duties to communicate in a language “for the
purposes of government” are limited in respect of the national and provincial gov-
ernments to at least two official languages “taking into account usage, practicality,
expense, regional circumstances and the balance of the needs and preferences of
131
the population as a whole or in the province concerned”. Municipalities must take
into account the language usage and preferences of their residents.132
Sections 30 and 31(2) provide that the rights may not be exercised in a manner
inconsistent with any provision of the Bill of Rights. This qualification serves to
prevent the immunisation of individual and group religious and cultural practices
133
from external regulation or judicial control. Like all other rights in the Bill of
Rights, the rights in section 30 and 31(1) may not be exercised in a way that in-
fringes other rights, unless, of course, such infringement complies with the general
limitation clause. The inconsistency referred to in the phrase “a manner inconsis-
tent with any provision of the Bill of Rights” includes non-compliance with the
general limitation clause. Religious practices such as human sacrifice, the burning of
widows with the corpses of their late husbands, or the stoning of adulterers violate
other rights in the Bill of Rights and their limitation can only be justified under the
general limitation clause.134
________________________
131 S 6(3)(a).
132 S 6(3)(b).
133 Christian Education SA v Minister of Education 2000 10 BCLR 1051 (CC), 2000 4 SA 757 (CC)
para 26.
134 Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC), 2002 2 SA
794 (CC) para 149.
Chapter 26
Information
Administrative action
1 Information 459
2 Administrative action 463
1 Information
1.1 Section 32 459
1.4 Justification for non-compliance with duties (limitation of the right) 462
1.1 Section 32
32(1) Everyone has the right of access to – (a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise
or protections of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide
for reasonable measures to alleviate the administrative and financial burden on the
state.

Information is necessary to make meaningful choices and in particular to exercise
other rights.
Information is particularly essential to exercise the right to freedom of religion,
thought, belief and opinion, and political and educational rights. In this sense, the
right to information is an incidence of the exercise of other rights in the Bill of
Rights. In the South African Constitution, this incidence is protected as a separate
right. As with the right to freedom of expression, the right to access and receive
information is also an essential component of a free, open and democratic society
and of the foundational values of accountability, responsiveness and openness in
section 1 of the Constitution.1 In My Vote Counts NPC v Minister of Justice and Correc-
tional Services, the Constitutional Court emphasised that information is essential for
the exercise of the right to make free political choices and the right to vote.2
One of the aspects of the right to freedom of expression referred to expressly in
section 16(1)(b) is the freedom to receive information. The right in section 16(1)(b)
is more extensive than the right in section 32(1), because section 16(1)(b) does not
________________________
1 Brümmer v Minister for Social Development 2009 11 BCLR 1075 (CC), 2009 6 SA 323 (CC) para 62;
President of RSA v M & G Media Ltd 2011 4 BCLR 363 (CC), 2011 2 SA 1 (CC) para 1.
2 My Vote Counts NPC v Minister of Justice and Correctional Services 2018 8 BCLR 83 (CC), 2018 5 SA
380 (CC) para 20.
459
limit the sources from which one wishes to receive information and it prohibits the
state from unjustifiably limiting non-state sources. The right in section 32(1) is
limited to access information held by the state, and by other persons when the
information is required for the exercising or protection of any rights.
In Ingledew v Financial Services Board, the question was raised whether a person in-
volved in litigation has the option to invoke a right to further information either
under the rules of the court or in terms of the right to information in section 32 of
the Constitution. The court did not decide the issue, but remarked as follows:3
“While there is much to be said for the view that once litigation has commenced dis-
covery should be regulated by the rules of court, such a view may give rise to certain
anomalies. Under the wording of section 32(1)(a), the applicant would prima facie
have been entitled to all the documents he now seeks until the day before summons
was served on him. Moreover, a third party might have approached another for access
to those documents during the course of the applicant’s litigation. In the present case,
however, it is not necessary to deal with these issues or the different views expressed in
the decided cases and I prefer to leave those issues open.”
In Unitas Hospital v Van Wyk, the Supreme Court of Appeal held that it is clear from
section 7 of the Promotion of Access to Information Act 2 of 2000 that the right in sec-
tion 32 is not intended to have any impact on the discovery procedures in civil cases.
Once court proceedings between the parties have started, the rules of discovery apply.
However, this does not preclude pre-action discovery where the requester is able to
show “need” or “substantial advantage”.4
The Constitutional Court held in PFE International Inc (BVI) v Industrial Development
Corporation of South Africa Ltd that after the commencement of proceedings,
information must be sought under Rule 38 of the Uniform Rules of Court and not
under the Promotion of Access to Information Act. The court based its conclusion
on section 7 of the Promotion of Access to Information Act which provides that
information sought for the purposes of civil or criminal proceedings after the
commencement of proceedings if the information is provided for in another law
and that Rule 38 was such a law.5
All natural persons are bearers of the right and the nature of the right is such that
6
juristic persons are also capable of being its bearers.
National legislation had to be enacted to give effect to this right.7 The Promotion of
Access to Information Act 2 of 2000 was passed for this purpose. The Act is an
ordinary law of parliament. Its compliance with the Constitution and particularly the
________________________
3 Ingledew v Financial Services Board 2003 8 BCLR 825 (CC), 2003 4 SA 584 (CC) para 2. See, also,
Davis v Clutcho (Pty) Ltd 2004 1 SA 75 (C).
4 Unitas Hospital v Van Wyk 2006 4 SA 436 (SCA) paras 19, 22; MEC for Roads and Public Works, EC
v Intertrade Two (Pty) Ltd 2006 5 SA 1 (SCA) para 17. See para 1.3 below.
5 PFE International Inc (BVI) v Industrial Development Corporation of South Africa Ltd 2013 1 BCLR 55
(CC), 2013 1 SA 1 (CC).
6 Transnet Ltd v SA Metal Machinery Co 2006 4 BCLR 473 (SCA), 2006 6 SA 285 (SCA) para 8; My
Vote Counts NPC v Minister of Justice and Correctional Services 2018 8 BCLR 83 (CC), 2018 5 SA 380
(CC) para 20.
7 Until the legislation had been enacted, the guarantee was deemed to have the content of s 23
of the Interim Constitution. S 23 of the Interim Constitution read: “Every person shall have the
right to access to all information held by the state or any of its organs at any level of govern-
ment in so far as such information is required for the exercise or protection of any of his or
her rights.”
Chapter 26 Information – Administrative action 461
right to access to information may be tested by the courts. It does not enjoy any
8
particular constitutional status. Access to information issues are dealt with primarily
in terms of the act or any other legal rule that regulates access to information,9 but
10
when the constitutionality of provisions of the act or any other legal rule dealing
with access to information is challenged the constitutional provisions shall be ap-
plied directly. Refusal to provide access to information covered by section 32 and
not directly or by implication by any legal rules, amounts to a limitation of the right
in section 32 which will have to comply with the requirements of the general limita-
tion clause.
The right to information binds all organs of state in terms of both section 32(1)(a)
and section 8(1) of the Constitution.
The courts use the definition of an “organ of State” in section 239 of the Constitu-
11
tion and the definition of a “public body” in section 1 of the Promotion of Access
to Information Act to determine which institutions and persons are bound by the
12
right. Section 239 of the Constitution defines an “organ of State” as (a) any depart-
ment of state or administration in the national, provincial or local sphere of govern-
ment; or (b) any other functionary or institution (i) exercising a power or perfor-
ming a function in terms of the Constitution or a provincial constitution; or (ii)
exercising a public power or performing a public function in terms of any legisla-
tion, but it does not include a court or a judicial officer. The definition of a “public
body” in the Promotion of Information Act is the same, except that it does not
exclude judicial officers. When access is sought to information held by the state, the
information must be readily available.13
The right binds private persons under section 32(1)(b).
Section 32(1)(b) of the Constitution provides that private persons are also bound to
the extent that they must provide information requested by a bearer of the right
when the information is required for the exercise or protection of any right. The
14
words “another person” include private natural and juristic persons. The
qualification “required for the exercise or protection of any rights” is a
constitutional limitation to broader applications the right might have had in private
relations in terms of section 8(2). Applicants who wish to enforce the right must
demonstrate that there is a legitimate reason to have access to the information.
________________________
8 Contra Currie I and De Waal J The Bill of Rights Handbook (2013) 696–697 who contend that
because the act gives effect to the constitutional right it “is therefore legislation with a particu-
lar status”. This is not correct. All legal rules must give effect to constitutional right and must
be interpreted in conformity with the Constitution (s 39(2) of the Constitution), and the in-
terpretation of any statute must be consistent with the purpose of the statute.
(CC), 2013 1 SA (CC) para 4.
10 In Institute for Democracy in SA v African National Congress 2005 10 BCLR 995 (C), 2005 5 SA 39
(C) para 19, the court limited s 32 as a cause of action to instances in which the constitutional-
ity of the Promotion of Access to Information Act is in issue.
11 See ch 6 para 1(b).
12 See, eg, Mittalsteel SA Ltd (previously known as ISCOR Ltd) v Hlatshwayo 2007 4 BCLR 386 (SCA),
2007 1 SA 66 (SCA) paras 7, 8. In this case, the information required concerned the activities
of the former ISCOR, which the court held was an institution bound by s 32(1)(a).
380 (CC) para 23.
380 (CC) para 20.
Requesters must disclose the rights that they want to exercise or protect and how the
15
required information will assist them in exercising or protecting the rights. The
word “required” in section 32(1)(a) has been interpreted to mean “reasonably
required” which means that there must be “a substantial advantage or an element of
16
need” to have access to the information. The substantial advantage may be that the
information contained in a record would be decisive for the enforcement of a right,
or that the information would bring a decisive end to the dispute concerning the
17
enforcement of a right. The need or substantial advantage does not include the
18
benefit of evaluating only the prospects of success against a potential defendant.
The “information” held includes information in human memory or in electronic
of audio-visual devices, and “holding” information includes keeping whatever in-
formation might be needed or required. “Any information” includes information
about the private funding of political parties or independent candidates who stand
19
for public office or hold public office.
According to section 7 of the Promotion of Access to Information Act the Act does
not apply to the records of public and private bodies when requested for purposes
of pending litigation, and according to section 12 records of courts, members of
parliament and cabinet are exempted. Obtaining information in these instances is
dealt with in other legislation, which like the Promotion of Access to Information
Act 2 of 2000 must comply with and must be interpreted in accordance with the
20
Constitution.
1.4 Justification and non-compliance with the duties (limitation of the right)
The right may be limited in terms of section 36 and has been limited by the Promo-
21
tion of Access to Information Act 2 of 2000.
Section 31(2) of the Constitution provides that the legislation that gives effect to the
right in section 31(1) may provide for reasonable measures to alleviate the
administrative and financial burden of the state. This clearly indicates that in
applying section 36 to a limitation of the right, administrative and financial
considerations may serve as purposes for limitation. The identification of these
purposes does not mean that the application of any other aspect of section 36 is
qualified. Limitations to alleviate the administrative and financial burden of the
state must therefore still be reasonable and justifiable taking into account the factors
________________________
380 (CC) para 23; Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC 2001 3
SA 1013 (SCA) para 28.
16 Clutchco (Pty) Ltd v Davis 2005 3 SA 486 (SCA) para 13; Institute for Democracy in SA v African
National Congress 2005 10 BCLR 995 (C), 2005 5 SA 39 (C) para 35; Unitas Hospital v Van Wyk
2006 4 SA 436 (SCA) para 18.
17 Claase v Information Officer, South African Airways (Pty) Ltd 2007 5 SA 469 (SCA) para 9; Unitas
Hospital v Van Wyk 2006 4 SA 436 (SCA) para 54.
18 Unitas Hospital v Van Wyk 2006 4 SA 436 (SCA) para 22.
380 (CC) paras 20, 21.
(CC), 2013 1 SA (CC) paras 6, 7, 22-24. See also Ingledew v Financial Services Board 2003 8 BCLR
825 (CC), 2003 4 SA 584 (CC) para 2; Davis v Clutcho (Pty) Ltd 2004 1 SA 75 (C); Unitas Hospital
v Van Wyk 2006 4 SA 436 (SCA) paras 19 and 22; MEC for Roads and Public Works, EC v Intertrade
Two (Pty) Ltd 2006 5 SA 1 (SCA) para 17.
21 President of RSA v M & G Media Ltd 2011 4 BCLR 363 (SCA), 2011 2 SA 1 (SCA) para 1.
in section 36(1)(a) to (e). This special limitation clause was included by the
Constitutional Assembly to avoid running the risk that the courts would in future
decide that the alleviation of the administrative and financial burden is not a
legitimate purpose for the limitation of the right. Section 9(b)(i) of the Promotion
of Access to Information Act states that purposes for the limitation of the right
include the protection of privacy, commercial confidentiality and effective and good
governance. Other purposes, some of which are dealt with in detail in the Act itself,
include the protection of life or physical safety and the security or protection of
buildings and security systems, law enforcement, criminal and civil procedure,
22
privilege, defence, security and international relations, the economic interests and
23
financial welfare of the state and research information.
A time limit of 30 days, in section 78(2) of the Promotion of Access to Informa-
tion Act for approaching a court to challenge aspects of the application of the Act
24
was invalidated by the Constitutional Court. The court held that although the
importance of time bar provisions to prevent delays in litigation cannot be denied,
problems relating to the availability and fading memories of witnesses do not arise
when information contained in documents held by the state is requested. In this
case the court did not present any evidence why administrative and cost burdens
necessitated the 30 day limit.
In My Vote Counts NPC v Minister of Justice and Correctional Services, the Constitu-
tional Court invalidated the Promotion of Access to Information Act to the extent
that it failed to provide for the recording, preservation and reasonable disclosure of
information on the private funding of political parties and independent candidates.
The court held:
“In sum, PAIA is deficient because it does not provide that: (i) information on the pri-
vate funding of political parties and independent candidates be recorded and pre-
served; (ii) it be made reasonably accessible to the public; and (iii) independent
candidates and all political parties are subject to its provisions. Additionally, it suffices
to say that no compelling reasons exist to justify these limitations.” 25
2 Administrative action
2.1 Section 33 464
2.2 Protected conduct and interests and bearers of the rights 464
________________________
22 The blanket prohibition on access to police dockets in terms of R v Steyn 1954 1 SA 324 (A) was
declared unconstitutional in Shabalala v Attorney-General, Tvl 1995 12 BCLR 1593 (CC), 1996 1
SA 725 (CC). This judgment was preceded by numerous decisions of provincial and local divi-
sions which are referred to in n 52 of the Constitutional Court’s judgment. For a discussion of
the effects of the case, see Watney M “The prosecution’s duty to disclose: more reason to liti-
gate?” 2012 TSAR 320. The overlap between the right to information and the right to a fair tri-
al, in s 23 and 25(3) of the Interim Constitution respectively, is discussed in paras 31 to 35 of
the Shabalala case.
23 See Johannessen L, Klaaren J and White J “A motivation for legislation on access to informa-
tion” 1995 SALJ 45.
24 Brümmer v Minister of Social Development 2009 11 BCLR 1075 (CC), 2009 6 SA 323 (CC).
380 (CC) para 68. Emphasis added. The invalidation was suspended for 18 months to enable
parliament to rectify the defect. Before the judgment was delivered, a bill had been introduced
to the National Assembly to provide for access to information concerning political party fund-
ing. The court overruled the judgment in Institute for Democracy in SA v African National Congress
2005 10 BCLR 995 (C), 2005 5 SA 39 (C).
2.3 Persons and institutions bound by the rights 465
2.4 Duties of those bound by the rights and justification for non-compliance with
the rights (limitations of the rights) 469
2.1 Section 33
33(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has
the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights and must – (a)
provide for the review of administrative action by a court or where appropriate, an in-
dependent and impartial tribunal; (b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and (c) promote an efficient administration.
2.2 Protected conduct and interests and bearers of the rights

Section 33 does not describe protected interests. It describes the duties of those
bound by the right. The duties, including the general duty of the state to protect
and give effect to the rights, are discussed in paragraph 2.3 below.
The right protects all individual conduct and interests that may be affected by the
application of general rules to individual instances.
In its discussion of the meaning of “administrative action” in the Promotion of
Administrative Justice Act 3 of 2000 within the parameters of section 33 of the Con-
stitution, the Supreme Court of Appeal held that administrative action “necessarily
involves the application of policy, usually after its translation into law, with direct
and immediate consequences for individuals or groups of individuals”.26 In this way,
the right to administrative justice protects all interests and conduct, including those
protected by other rights, which may be affected by the application of general rules
27
to individual instances. These are also the interests and conduct protected when
office-bearers and organs of private organisations apply the internal general rules of
28
the organisations to their members. The right to just administrative action provides
individuals with a protective shield against the actions of executives, administrators
________________________
26 Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 10 BCLR 931 (SCA), 2005 6 SA
313 (SCA) paras 23, 24. The court held that viewed in the light of s 33 of the Constitution, the
requirement in the definition of “administrative action” in the Promotion of Administrative
Justice Act that administrative actions must “adversely affect the rights of any person” must not
be interpreted literally, but means that administrative action must be “capable to affect” legal
rights – para 24.
27 In MEC, Department of Welfare, Eastern Cape v Kate 2006 4 SA 478 (SCA) para 22, it is explained:
“The realisation of substantive rights is usually dependent upon an administrative process.
Rights that protect that process . . . are essentially ancillary to the realisation of those substan-
tive rights. For, without protection being given to the process, the substantive rights are capa-
ble of being denied.”
28 In Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 10 BCLR 931 (SCA), 2005 6 SA
313 (SCA) para 24, the court referred to the conduct of “bureaucracy (whatever the bureau-
cratic functionary might be)”, but limited the conduct for purposes of the Promotion of Ad-
ministrative Justice Act to the carrying out of functions of the state. In para 2.2 below, it is
argued that the concept administrative action in s 33 of the Constitution should not be limited
in this way. In para 28 of the Grey’s case, the court foresaw the possibility that there may be in-
stances in which the definition of administrative action in the Promotion of Administrative Jus-
tice Act may exclude from its ambit some acts that would otherwise constitute administrative
action for the purposes of s 33.
and officials who may otherwise be accountable only to the institutions and persons
who have appointed them.
All natural persons are bearers of the right, and its nature is such that juristic
persons can also be bearers.
As in the case of all other rights, organs of state are not bearers of the right.29
However, the principle of legality based on the rule of law as constitutional value
entrenched in section 1 of the constitution may be used to review state action when
30
an organ of state seeks to have its own action reviewed.
2.3 Persons and institutions bound by the right

The right binds every person and institution that performs an “administrative
action”.
The meaning of “administrative action” determines who these persons and
institutions are.
Administrative actions are actions that apply general rules to individual cases.
Traditionally, the application of rules of law to individual cases within the context of
adjudication by the courts has been excluded.
The Constitutional Court uses a more limited definition. It excludes certain
actions such as executive action despite the fact that executive action often involves
the application of general rules to individual cases. The court held that administra-
tive action is action to implement legislation and that the factors to be taken into
account in deciding whether any action constitutes administrative action include the
31
nature, source and subject-matter of the power involved. In Military Veterans v Motau the
Constitutional Court explained that features such as the nature of the action, the
source of the power and the absence of constraints in exercising the power do not in
themselves determine the meaning of administrative action. The court singled out
the criterion that whereas executive action comprises the development of policy,
administrative action comprises the implementation of legislation and policy.32 This is in line
with the definition above that administrative actions are action that apply general
rules to individual cases.
The courts have held that “administrative action” in this right does not include: summary
sentencing;33 the bringing into force of parliamentary acts by the President;34 the
________________________
29 State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd 2018 2 BCLR 240
(CC), 2018 2 SA 23 (CC) paras 24, 27–29. In this case, the court held in paras 30, 32 that this is
also the case in respect of the Promotion of Administrative Justice Act 3 of 2000.
30 State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd 2018 2 BCLR 240
(CC), 2018 2 SA 23 (CC) para 41; see also Khumalo v MEC for Education: KwaZulu Natal 2014 3
BCLR (CC), 2014 5 SA 579 (CC) para 38.
31 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 142, 143. In
Military Veterans v Motau 2014 8 BCLR 930 (CC), 2014 5 SA 69 (CC) paras 33, 44 the Constitu-
tional Court provided an overview of its previous statements on the distinction between admin-
istrative action and executive action.
32 Minister of Defence and Military Veterans v Motau 2014 8 BCLR 930 (CC), 2014 5 SA 69 (CC) para
37; see also President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) para 142;
Permanent Secretary, Department of Education, Eastern Cape v Ed-U- College (PE) (s 21) Inc 2001 2
BCLR 118 (CC), 2001 2 SA 1 (CC) para 18; Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public
Works 2005 10 BCLR 931 (CC), 2005 6 SA 313 (CC) para 24.
33 Nel v Le Roux NO 1996 4 BCLR 592 (CC), 1996 3 SA 562 (CC) para 24.
34 Pharmaceutical Manufacturers Association of SA; In re: ex parte application of the President of the RSA
2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC) para 79.
appointment of commissions of inquiry by the President in terms of section 84(2)(f) of
the Constitution;35 the dismissal by a minister of non-executive members of the Arm-
scor board;36 decisions of a deliberate and elected legislative body;37 a vote of no confi-
dence in a provincial legislature;38 decisions in terms of the Restitution of Land Rights
Act 22 of 1994;39 the allocation of money in an appropriation Act and allocations stipu-
lated in the memorandum of such an Act (but, the determination of a subsidy formula
for money to be paid to particular institutions constitutes an administrative act);40 the
proceedings of a general meeting of a medical scheme registered in terms of the Med-
ical Schemes Act 131 of 1998;41 consensual private arbitration;42 the cancellation of
contracts by a public authority in terms of the common law and the contract itself (but
cancellation in terms of a statute constitutes administrative action).43 The last example
was later qualified: only cancellations of contracts concluded on an equal footing by
public authorities without deriving any authority from their public position do not
amount to administrative actions.44
Although the Constitutional Court excludes executive action from its definition of
administrative action, the court held that executive action may nevertheless “not
infringe the other rights in the Bill of Rights, must observe the principle of legality,
must [be performed] in good faith and [their authors] must not misconstrue the
45
powers” they perform. In this way, the court tries to avoid the consequences that
ensue from its view that “executive actions” are not administrative actions, namely
that executive actions could be performed without legal constraints unless they limit
other rights than the right to administrative justice. However, the court, in
developing a general constitutional principle of legality and other rules to apply to
these executive actions, has not yet formulated any rule that is not covered by the
rights in section 33, or the provisions of the Promotion of Administrative Justice Act
46
3 of 2000, or the provisions of the general limitation clause.
________________________
35 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 141–142, 147–
148.
36 Minister of Defence and Military Veterans v Motau 2014 8 BCLR 930 (CC), 2014 5 SA 69 (CC) para
47.
1458 (CC), 1991 1 SA 374 (CC) para 27; Gardener v East London Transitional Local Council 1996
3 SA 99 (E) 116E–F; Frans v Munisipaliteit van Groot Brakrivier 1997 3 BCLR 346 (C) 352F–G;
Uitenhage Local Transitional Council v Zenza 1997 8 BCLR 1115 (EC) 1118; Cekeshe v Premier for the
Province of the Eastern Cape 1997 12 BCLR 1746 (Tk) 1766–1767.
38 Van Zyl v New National Party 2003 10 BCLR 1167 (C) paras 48–52.
39 Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003 1 SA 373 (SCA) para 12.
40 Permanent Secretary of the Department of Education, Eastern Cape v Ed-U-College (PE) (Section 21) Inc
2001 2 BCLR 118 (CC), 2001 2 SA 1 (CC) paras 12, 14, 21.
41 Pennington v Friedgood 2002 3 BCLR 298 (C), 2002 1 SA 251 (C).
42 Total Support Management v Diversified Health Systems (SA) 2002 4 SA 661 (SCA) para 25; Telcordia
Technologies Inc v Telkom SA Ltd 2007 5 BCLR 503 (SCA) para 45. The fact that private arbitra-
tion does not qualify as “administrative action” for the purposes of s 33, does not mean that s
33 cannot be applied to the actions involved in terms of s 8(2). Contra Lufuno Mphaphuli and
Associates (Pty) Ltd v Andrews 2009 6 BCLR 527 (CC), 2009 (4) SA 529 (CC); see Rautenbach IM
“Private arbitrasie en die handves van regte” 2010 TSAR 185–201.
43 Cape Metropolitan Council v Metro Inspection Services 2001 10 BCLR 1026 (SCA), 2001 3 SA 1013
(SCA) para 18.
44 Logbro Properties CC v Bedderson NO 2003 2 SA 460 (SCA) para 10.
45 President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC) paras 141–142, 147–
148.
46 Cf, in Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of the
RSA 2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC) paras 85–86, the rule that a decision must be
rationally related to the purpose for which the power was given, with s 6(2)(f)(ii) of the Act; in
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council supra paras
The court’s exclusion of these executive actions from its definition of “admin-
istrative action” in section 33 needs to be revised.
The Constitution cannot be interpreted in a way that echoes the meaning of admin-
istrative action in ordinary legislation such as the Promotion of Administrative
Justice Act or the legal position in respect of imperial prerogatives. If a need should
arise to exempt certain forms of administrative action from certain duties under the
right to lawful, reasonable and procedurally fair administrative action in section 33
of the Constitution, the exemptions should comply with the requirements for the
limitation of rights. It is an unfortunate situation to distinguish administrative ac-
tions from executive actions, but to apply the same the rules in each case.
The courts have held that “administrative action” includes: a government decision to
build a transit camp for flood victims on its own land;47 the procurement of goods and
services through tender procedures;48 inaction and failure to perform a function in
terms of any legislation;49 acts of the commissioner of the South African Revenue Ser-
vice;50 the appointment of a tribal chief by a provincial premier in terms of section
2(7) of the Black Administration Act 38 of 1927;51 disciplinary proceedings of the Vet-
erinary Council;52 the functioning of statutory educational institutions, such as universi-
ties, technikons and schools;53 arbitration decisions of commissioners of the Commis-
sion for Conciliation, Mediation and Arbitration,54 but these administrative actions are
being given effect to by the Labour Relations Act and not by the Promotion of Admin-
istrative Justice Act;55 the approval of building plans by a local authority or its dele-
gate;56 the adjudication of a complaint by the Independent Communication Authority
of South Africa;57 the award of public tenders;58 decisions on the provision of services in
fulfilment of constitutional and statutory obligations to provide basic municipal ser-
vices;59 decisions on legitimate expectations are “administrative acts”,60 to the extent
________________________
58–59, the ultra vires rule, with s 6(1)(2)(a)(ii) of the Act; in President of the RSA v SARFU supra
para 148, the rule against mala fides and a misconstruction of powers, with s 6(1)(e) of the Act.
See Hoexter C “The future of judicial review in South African administrative law” 2000 SALJ
484, 507
47 Minister of Public Works v Kyalami Ridge Environmental Association 2001 7 BCLR 652 (CC), 2001 3
SA 1151 (CC) para 94.
48 Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 BCLR 300 (CC), 2007 3 SA 121
(CC); Transnet Ltd v Goodman Bros (Pty) Ltd 2001 2 BCLR 176 (SCA), 2001 1 SA 853 (SCA).
49 Noupoort Christian Centre v Minister, National Department of Social Development 2005 10 BCLR 1034
(T) para 25.
50 Henbase 3392 v Commissioner SARS 2002 2 SA 180 (T).
51 Mkhatshwa v Mkhatshwa 2002 3 SA 441 (T).
52 SA Veterinary Council v Veterinary Defence Association 2003 7 BCLR 697 (SCA) 705.
53 Awumey v Fort Cox Agricultural College 2003 8 BCLR 861 (Ck) 868.
54 Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC), 2008 (2) SA 24 (CC) paras 88,
89, 140.
55 Gcaba v Minister for Safety and Security 2010 1 BCLR 35 (CC), 2010 1 SA 238 (CC) para 64.
56 Walele v City of Cape Town 2008 11 BCLR 1067 (CC), 2008 6 SA 129 (CC) para 27.
57 In Islamic Unity Convention v Minister of Telecommunications 2008 4 BCLR 384 (CC), 2008 3 SA
383 (CC) paras 49, 71 the court held that the procedure for the adjudication provided for in
the Independent Broadcasting Authority Act 153 of 1993 and the Independent Communica-
tions Authority of South Africa Act 13 of 2000 complied with the requirements of s 33 of the
Constitution.
58 Steenkamp NO v Provincial Tender Board, EC 2007 3 SA 121 (CC) para 21.
59 Joseph v City of Johannesburg 2010 3 BCLR 212 (CC), 2010 4 SA 55 (CC) para 47.
60 Campbell J “Legitimate expectations: the potential and limits of substantive protection in
South Africa” 2003 SALJ 292 317. On the concept “legitimate expectation”, see also Quinot G
“The developing doctrine of substantive protection of legitimate expectations in Southern Af-
rican administrative law” 2004 SA Public Law 543; Duncan v Minister of Environmental Affairs and
Tourism 2010 6 SA 374 (SCA) paras 13, 14.
that the Promotion of Administrative Justice Act applies only to decisions that ad-
versely affect “rights”, administrative acts affecting legitimate expectations or other in-
terests are regulated by the common law, subject to compliance with the Constitution.
The Constitutional Court has not yet provided a majority answer to the question
whether delegated legislation constitutes “administrative action” for the purposes of
section 33 of the Constitution and the Promotion of Administrative Justice Act.
In Minister of Health v New Clicks SA (Pty) Ltd , four judges held that nothing in the In-
terim Constitution or the Constitution suggests that it was intended to exclude the
making of delegated legislation from what had previously been understood as being
administrative action; to hold otherwise would be contrary to the Constitution’s com-
mitment to open and transparent government and to the purpose of section 33 which
is to establish a coherent and overarching system for the review of all administrative
action.61 Ngcobo J, with whom four judges concurred, held that section 33 and the
Promotion of Administrative Justice Act applied to the regulations in issue and pre-
ferred not to express an opinion on regulation-making in general.62 Sachs J held that
the general regulatory scheme concerned is not governed by section 33 or the Promo-
tion of Administrative Justice Act, but by a general constitutional principle of legality.63
Five judges found it unnecessary to decide the matter in terms of section 33 of the
Constitution. On the assumption that the Promotion of Administrative Justice Act does
apply, they held that the procedure followed was fair.64
The right to just administrative action binds private persons and institutions when
they apply general rules to specific factual situations.
Before 1994, administrative law was applied to the actions of private institutions such
65
as churches, trade unions and clubs, even though they were not organs of state or
exercising government authority or performing public functions. The right in
section 33 is therefore clearly capable of being applied to private persons and pri-
vate relations for the purposes of section 8(2) and to all law that regulates the ac-
tions of private persons that involves the application of general norms to individual
66
cases for the purposes of section 8(1). The standard explanation that the applica-
67
tion of administrative law in such cases is based on an agreement is not convincing.
68
Of course, subject to what is permissible in terms of the waiver of rights, parties
may contractually exclude the operation of administrative-law rules, but to accept
that, if the rules have not been excluded, the parties have agreed tacitly that the
rules apply, is an ill-conceived fiction.69 It is more realistic to accept that, because
administrative law is founded on principles applicable to the application of general
rules to individual cases, particularly in unequal relationships, the rules apply auto-
70
matically, unless their application is excluded by agreement.
________________________
61 2006 1 BCLR 1 (CC), 2006 2 SA 311 (CC) paras 109, 113, 118. They also concluded that the
definition of administrative action in the Promotion of Administrative Justice Act includes leg-
islative administrative action – para 133.
64 2006 1 BCLR 1 (CC), 2006 2 SA 311 (CC) paras 671, 723, 724.
65 Klein v Dainfern College 2006 3 SA 73 (T) paras 14–19.
66 See ch 17 para 17. Contra Hoexter C and Lyster R II The New Administrative and Constitutional
Law (2002) 90.
67 See, eg, Theron v Ring van Wellington, NG Sendingkerk in SA 1976 2 SA 1 (A) 21D–F.
69 Baxter L Administrative Law (1989) 241.
70 In Marais v Democratic Alliance 2002 2 BCLR 171 (C) para 67, the court said that the rules of
natural justice are contained as procedural fairness in s 33, and the court applied the rules to
the actions of a political party in respect of its members.
Proposals to the effect that administrative common law, and not the rules in sec-
71
tion 33, should apply to private administrative actions will create an unnecessary
and confusing further subsystem of administrative law which will most probably be
no different from the rules and principles that must be applied under section 33.
The application of the right to administrative justice to private relations in terms of
section 8(2) and (3) could solve the problems that flow from formal and artificial
conceptual approaches to the meaning of the concept administrative action.72
2.4 Duties of those bound by the rights and justification

for non-compliance with the rights (limitation of the rights)
“Every failure of administrative justice amounts to a breach of a constitutional du-
73
ty.” This breach is not considered to be the equivalent of unlawfulness for the
purposes of the law of delict. Administrative action that constitutes a breach of a
74
duty is not for that reason alone wrongful for the purposes of delictual liability.
The Promotion of Administrative Justice Act 3 of 2000 was passed in order to give
effect to the right in the Constitution and to describe the legal rules that govern the
75
classes of administrative action described in the Act. The Act is an ordinary law of
Parliament. It enjoys no special constitutional status. Its compliance with the Consti-
tution and particularly the right to administrative justice may be tested by the courts.
The possibility of the unconstitutionality of a few provisions has already been
raised.76 The cause of action for the judicial review of administrative action now
arises from this Act and not from the common law or directly from the Constitu-
tion.77 However, it is not the only source of causes of action in administrative law.
Other legislation or the common law may provide for causes of action not covered
78
by the Act. So, for example, the Labour Relations Act and not the Promotion of
________________________
71 De Ville J Judicial Review of Administrative Action in South Africa (2005) 49; Klein v Dainfern College
2006 3 SA 73 (T) para 25; Manong and Associates v Director General: Department of Public Works
2005 10 BCLR 1017 (C) 1027.
72 Cf Hoexter C “Contracts in administrative law: Life after formalism?” 2004 SALJ 595, 616–618.
73 Steenkamp NO v Provincial Tender Board 2007 3 BCLR 300 (CC), 2007 3 SA 121 (CC) para 37.
74 Currie I The Promotion of Administrative Justice Act – A Commentary (2007) paras 1.1, 1.6. Steenk-
amp NO v Provincial Tender Board 2007 3 BCLR 300 (CC), 2007 3 SA 121 (CC) para 37; Olitzki
Property Holdings v State Tender Board 2001 8 BCLR 779 (SCA), 2001 3 SA 1247 (SCA) para 12.
75 S 33 and item 23 schedule 6 provides that s 33(1) and (2) was deemed to contain the contents
of s 24 of the Interim Constitution for three years after the commencement of the Constitution
or the adoption of legislation to give effect to the right in the Constitution. The Promotion of
Administrative Justice Act was passed in January 2000.
2004 4 SA 490 (CC) paras 44, 45 held that the test “so unreasonable that no reasonable person
could have so exercised the power” in s 6(2)(h) was inconsistent with “reasonable” in s 33(1) of
the Constitution and held that the constitutional meaning is that a decision may not be “so un-
reasonable that no reasonable decision-maker could reach it”. Hoexter C “The future of judi-
cial review in South African administrative law” 2000 SALJ 515 questions the constitutionality of
the definition of “administrative action” in s 1 of the Act. Klaaren J and Penfold G in Woolman
et al (eds) Constitutional Law of South Africa para 63.2(b) question the constitutionality of cer-
tain time limits on initiating action and the rules on the exhaustion of internal remedies which
are more restrictive than the common-law rules.
77 Minister of Health v New Clicks SA (Pty) Ltd 2006 1 BCLR 1 (CC), 2006 2 SA 311 (CC) paras 96,
437, 586. This is contained in the judgment of five judges, but none of the concurring and
minority judgments contested this line of reasoning.
2004 4 SA 490 (CC) para 25; Zondi v MEC for Traditional and Local Government Affairs 2005 4
BCLR 347 para 101.
Administrative Justice Act, gives effect to the right in section 33 in respect of admin-
79
istrative action covered by the Labour Relations Act.
Those bound by the right must perform administrative actions that are lawful,
reasonable and procedurally fair and they must give written reasons when their
administrative actions adversely affect rights. The application of general rules to
individual cases usually has a direct impact on the interests and conduct of individ-
uals. Consequently, administrative actions very often limit other rights in the Bill of
80
Rights. This accounts for the overlap (discussed below) between the requirement
of complying with the duties imposed by the right to just administrative action and
the application of the general limitation clause. Section 33 particularises the rules in
section 36 in respect of administrative actions that limit rights. When administrative
action limits rights,
• the right to lawful administrative action in section 33(1) incorporates the re-
quirement in section 36 that rights be limited only “in terms of law of general
81
application”;
• the right to procedurally fair administrative action, incorporates the procedural
elements of the limitation of rights in section 36; the nature of a limitation of a
right that must be considered in terms of section 36(1)(c) covers the procedure
82
followed when a limitation has been effected; and
• the right to reasonable administrative action incorporates the substantive elements
in the general limitation clause; the reasonableness of a limitation is covered by
the relation between the limitation and its purpose that must be considered in
83
terms of section 36(1)(d).
The duties imposed by section 33(1) and (2) and how non-compliance with them
may be justified are discussed in paragraphs 2.4.1 to 2.4.3 below.
2.4.1 The right to lawful administrative action

This right guarantees as an individual right, the application of the rule of law and
84
the principle of legality to administrative action.
A general right to lawful administrative action may serve as a residual right which
covers aspects of the rule of law and of legality not provided expressly for in other
85
rights in the Constitution. One such instance could be that constitutional status be
________________________
79 Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC), 2008 2 SA 24 (CC) para 92.
Gcaba v Minister for Safety and Security 2010 1 BCLR 35 (CC), 2010 (1) SA 238 (CC) para 64.
80 Administrative and private action performed in terms of valid legal rules may limit a right
through the exercising of a discretion and such a limitation must comply with the limitation
clauses.
82 See ch 18 para 2.2.2(c).
83 The reasonableness of a limitation is covered by the relation between the limitation and its
purpose and it must be a relation that is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom. See ch 18 paras 2.2.1 and 2.2.2(d).
84 The rule of law is entrenched in s 1 of the Constitution. Bel Porto School Governing Body v Premier
of the Western Cape 2002 9 BCLR 891 (CC), 2002 3 SA 265 (CC) para 164 – the requirement that
all exercise of public power must have a rational basis is “one of the foundations of legality, or
lawfulness”, as required by the constitutional guarantee in respect of administrative justice
85 The same happens when the courts give effect to the constitutional rights to fair trials in ss 34
and 35(3) and procedurally fair administrative action in s 33(1). If legality were to mean only
“that the . . . executive may exercise no power and perform no function beyond that conferred
upon them by law”, as was said in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
afforded to the common-law principle that all administrative acts must be clear and
86
intelligible.
The right also entrenches the principles that executive or administrative organs may
perform only those actions that have been authorised by law87 and that empowering
legislation may not indirectly detract from this principle.
Whereas it is not readily conceivable that empowering provisions will ever expressly
authorise executive or administrative organs to ignore the empowering provisions
and to act as they deem fit, a sovereign parliament could previously have flouted this
principle and reached the same result, either by affording executive organs an
almost unlimited discretion to regulate a particular matter or by excluding the
88
courts’ powers of review in respect of particular actions. The right to lawful
administrative action and the right to access to courts now preclude these
possibilities.
When administrative actions limit other rights in the Constitution, the right to
lawful administrative action is also covered by the requirement in section 36(1) that
rights may be limited only “in terms of law”, which, as discussed in chapter 18,
includes the rules to the effect that every action that limits rights must be authorised
by law and that such authorising law must be accessible, clear and intelligible.
2.4.2 The right to reasonable administrative action
This right involves the substantive content of administrative action and reasonable-
ness/unreasonableness is determined by taking into account the factors referred in
section 36(1)(a) to (e).
The courts have not yet noticed this link between “reasonable” in section 39 and the
requirements of section 36.
Following British administrative law court judgments, the Constitutional Court
held that a reasonable administrative decision “is one that a reasonable decision-
maker could make” and that a decision is unreasonable if it
• will not reasonably result in the achievement of the goal identified for the exer-
cise of the power;
• is not reasonably supported on the facts; and
89
• is not reasonable in the light of the reasons given for it.
________________________
Metropolitan Council 1998 12 BCLR 1458 (CC), 1999 1 SA 374 (CC) para 58, the effect of the
principle would be limited to the second aspect referred to in the text.
86 In R v Pretoria Timber Co (Pty) Ltd 1950 3 SA 163 (A). In President of the RSA v SARFU 1999 2
BCLR 175 (CC), 1999 2 SA 14 (CC) para 39, it was stated that void-for-vagueness considera-
tions fell within the scope of the doctrine of legality and were constitutional issues.
87 That is, “ultra vires under the common law by reason of a functionary exceeding a statutory
power” – Pharmaceutical Manufacturers Association of SA; In re: ex parte application of the President of
the RSA 2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC) para 50. See, also, Fedsure Life Assurance
Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 12 BCLR 1458 (CC), 1999 1 SA
374 (CC) paras 56, 58 and Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529
(CC)), 2006 3 SA 247 (CC) paras 49–50; Farjas (Pty) Ltd v Regional Land Claims Commissioner,
KwaZulu-Natal 1998 5 BCLR 579 (LCC) para 18.
88 In National Director of Public Prosecutions v Seevnarayan 2003 7 BCLR 766 (C) paras 67–68 it was
remarked that that permitting a court only to confirm formally the exercise of a wide discre-
tionary executive power has the same effect as the exclusion of judicial review.
2004 4 SA 490 (CC) paras 45–46, 48.
This test is not very useful, because the concept that is being defined is repeated in
the definition.
The court held that the reasonableness requirement in section 6(2)(h) of the Promo-
tion of Administrative Justice Act 3 of 2000 must have this meaning in order to be con-
sistent with section 33 of the Constitution. In this sense, the court formulated a test for
reasonableness in section 33. To find out what the test in section 6(2)(h) means, one
may compare it with the requirement in section 6(2)(f)(ii) of the Act that an adminis-
trative action must be rationally connected to the purpose for which it was taken, the
purpose of the empowering provision, the information before the administrator and
the reasons given by the administrator. The test for reasonableness in the Bato case is
the same except that “rationally connected” is replaced with “reasonably/reasonable.”
The Constitutional Court clearly intended reasonableness to involve a stricter test than
“rationally connected”, but, apart from identifying the factors with which the decision
must be “reasonably” connected, the court did not explain the nature of this stricter
test.90
The reasons usually given to explain the reasonableness of a particular
administrative act are: “The interests of the complainant are not affected or not
affected seriously” or “To the extent that the interests have been affected, they are
not important interests” or “The goal which was pursued is extremely important and
it justifies the disadvantage of those affected by the action” or “The method we have
chosen to achieve the goal is the least invasive of the complainant’s interests”.
Reasons such as these deal with the factors referred to in section 36. To determine
whether they are “reasonable” reasons, the factors in section 36 will have to be taken
91
into account in the same way as in the case of the limitation of rights. In this sense,
the reasonableness requirement involves the substantive merits of a decision.
However, viewed within the framework of a dynamic application of section 36 the
reasonableness requirement does not involve a single, fixed review standard of
strictness or leniency, nor does it amount to an appeal procedure in which
administrators are left with no discretion on how to perform their actions.92
When administrative action affects rights in the Bill of Rights, the reasonableness
review in terms of section 33 cannot and should not differ from the limitation review
in terms of section 36(1). Notwithstanding this overlap, the reasonableness require-
ment in section 33 has a wider application than the general limitation clause. The
duties described in section 33 apply to all administrative actions, not only to admin-
istrative actions that limit rights entrenched in the Bill of Rights. There are probably
not many situations in which interests not covered in the Bill of Rights are affected.
However, to the extent that there may be, it is likely that only the rational relation-
93
ship test will be applied.
________________________
90 In Minister of Health v New Clicks SA (Pty) Ltd 2006 1 BCLR 1 (CC), 2006 2 SA 311 (CC) para
108, Chaskalson CJ explained that whereas rationality was the standard of review for the re-
quirement in the Interim Constitution, namely that an administrative decision had to be justi-
fiable in relation to the reasons for it (as decided in Bel Porto School Governing Body v Premier,
Western Cape 2002 9 BCLR 891 (CC), 2002 3 SA 265 (CC) para 90), reasonableness in s 33 of
the Constitution contains “a variable but higher standard, which in many case will call for a
more intensive scrutiny”. Apart from repeating what was said in Bato Star Fishing (Pty) Ltd v Min-
ister of Environmental Affairs and Tourism 2004 7 BCLR 687 (CC), 2004 4 SA 490 (CC) paras 45
48, the Chief Justice did not explain what this higher standard means.
91 See ch 18 para 2.2 in respect of the factors that must be taken into account.
92 See ch 18 para 2.2.2(e) above. Contra Trinity Broadcasting (Ciskei) v Independent Communications
Authority of SA 2004 3 SA 346 (SCA) para 20.
93 See ch 18 para 2.2.2(d) in respect of the rational relationship test.
2.4.3 The right to administrative action that is procedurally fair
“Procedural” refers to the way in which the action is executed.94 The concept
“procedurally fair” includes the common-law rules of natural justice, such as the
95
right to be heard, the right to be informed of facts and considerations that may
detrimentally affect one’s position,96 and the absence of prejudice.
It is not limited to the rules of natural justice. Other principles concerning proce-
97
dure may also be recognised as constitutionally entrenched principles. The courts
emphasise that what constitutes a “fair” procedure will depend on the nature of the
administrative action and circumstances of the particular case.98
“Procedurally fair” need not be developed to include “substantive” justice like in the
American due-process-of-law doctrines. We have a more sophisticated Bill of Rights.
Whereas procedural justice is covered by “procedurally fair” in section 33(1) and the
right to a fair trial in sections 34 and 35(2), the general and special limitation clauses
in the Bill of Rights provide a sufficient basis for achieving a substantive fair balance of
rights and interests. Furthermore, substantive justice in respect of all administrative
actions is covered by the right to “reasonable” administrative action.
Legislation that provides for deviations from conduct which is considered “fair
procedure” must comply with the limitation clauses of the Bill of Rights.99 To the
extent that limitation considerations referred to in the general limitation clause are
taken into account in deciding whether a procedure is fair, the concept “fair”
constitutes a special limitation clause.100
________________________
94 In Carlson Investment Share Block (Pty) Ltd v Commissioner for the SA Revenue Services 2002 5 BCLR
521 (W) 531, the court dealt with the common-law rules of functus officio as if they formed
part of the constitutional fair-procedure guarantee.
95 Premier of Mpumalanga v Executive Committee of State-Aided Schools: Eastern Transvaal 1999 2
BCLR 151 (CC), 1999 2 SA 91 (CC) para 42; Buffalo City Municipality v Gauss 2005 4 SA 489
(SCA) para 9; OVS Vereniging vir Staatsondersteunde Skole v Premier Provinsie Vrystaat 1996 2
BCLR 248 (O) 275; Jenkins v Government of the Republic of South Africa 1996 8 BCLR 1059 (Tk);
Myburgh v Voorsitter van die Schoemanpark Ontspanningsklub Dissiplinêre Verhoor 1995 9 BCLR
1145 (O) 1150E; Cuppan v Cape Display Supply Chain Services 1995 5 BCLR 598 (D); Roux v Die
Meester 1997 1 SA 815 (T).
96 Tseleng v Chairman, Unemployment Insurance Board 1995 2 BCLR 138 (T) 151.
97 Koyabe v Minister for Home Affairs 2009 12 BCLR 1192 (CC), 2010 4 SA 327 (CC) para 36; Zondi
v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC) paras 113–114; Minister of
Public Works v Kyalami Ridge Environmental Association 2001 7 BCLR 652 (CC), 2001 (3) SA
1151 (CC) para 101.
98 Van Huyssteen v Minister of Environmental Affairs and Tourism 1995 9 BCLR 1191 (C) 1214B–D,
1996 1 SA 283 (C) 305C; Jeeva v Receiver of Revenue, Port Elizabeth 1995 2 SA 433 (SE); Bernstein
v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) paras 98 and 131. See, in respect of the
right to legal representation, Hamata v Chairperson, Peninsula Technikon Internal Disciplinary
Committee 2002 7 BCLR 756 (SCA) paras 8–14.
99 Janse Van Rensburg NO v Minister of Trade and Industry NO 2000 11 BCLR 1235 (CC) para 26;
Henbase 3392 v Commissioner, SARS 2002 2 SA 180 (T) 192; Phenithi v Minister of Education 2006
11 BCLR 1314 (SCA) paras 24, 25.
100 In Janse Van Rensburg NO v Minister of Trade and Industry NO 2000 11 BCLR 1235 (CC) para
23, the court, in order to determine the “fairness” of a procedure, considered the importance
of the purpose of non-compliance with the ordinary requirements of fair procedure, the na-
ture of non-compliance and the effect of non-compliance. In Minister of Public Works v Kyalami
Ridge Environmental Association 2001 7 BCLR 652 (CC), 2001 3 SA 1151 (CC) para 101, the
court held that procedural fairness depends, in each case, on the balancing of various rele-
vant factors including the nature of the decision, the rights affected by it, the circumstances
in which it was made and the consequences resulting from it. In City of Johannesburg v Rand
Properties (Pty) Ltd 2007 6 BCLR 643 (SCA) para 63, the court held that the audi principle can
hardly apply in emergency cases such as when an administrative decision to vacate a building
must be taken when it is necessary for the safety of any person.
The Constitutional Court held that failure to comply with the Promotion of Ad-
ministrative Justice Act 3 of 2000 was a “consequent infringement of section 33 of
the Constitution” and investigated whether disconnecting electricity without notice,
when charges are due to a municipal council, could be justified under the general
101
limitation clause. The court conceded that financial sustainability and the efficient
recovery of outstanding debt could constitute important public purposes for the
limitation of the right to fair administrative procedure, but held that a 14-day pre-
day termination notice posted at the affected premises would hardly have a negative
102
impact on these purposes. A less intrusive way to achieve the purposes could
therefore have been used.
2.4.4 The right to be furnished with written reasons

Before 1994, the giving of reasons was not required, but mala fides could have been
103
inferred from failure to give reasons. The common-law rules of natural justice were
104
constitutionally expanded in this regard. The right to reasons enables a person to
determine whether administrative action is reviewable.105 It also has the potential of
satisfying an affected person that the case has been considered, and “promotes good
administrative functioning because the decision-makers know that they can be called
upon to explain their decisions and thus be forced to evaluate all the relevant con-
siderations correctly and carefully”.106 Providing reasons “will often be important in
providing fairness, accountability and transparency”.107
The statutory discretion to withhold information must be exercised within the
framework of the general limitation clause in section 36.108 The adequacy of reasons
depends on factors such as the factual context of the administrative action, the
nature and complexity of the action, the nature of the proceedings leading up to
the action, and the nature of the functionary taking the action. The purpose for
which reasons are intended, the stage at which these reasons are given, and what
further remedies are available to contest the administrative decision are also impor-
tant factors. The list, which is not a closed one, will hinge on the facts and circum-
109
stances of each case and the test for adequacy of reasons must be an objective one.
Although the reasons must be sufficient, they need not be specified in minute detail,
nor is it necessary to show how every relevant fact weighed in the ultimate
________________________
101 Joseph v City of Johannesburg 2010 3 BCLR 212 (CC), 2010 4 SA 55 (CC) para 49.
102 Joseph v City of Johannesburg 2010 3 BCLR 212 (CC), 2010 4 SA 55 (CC) paras 51, 52, 61, 63.
103 De Ville J “The right to administrative justice: an examination of section 24 of the interim
constitution” 1995 SAJHR 270–272.
104 See Xu v Minister van Binnelandse Sake 1995 1 BCLR 62 (T), 1995 1 SA 185 (T); Naidenov v
Minister of Home Affairs 1995 7 BCLR 891 (T); Parekh v Minister of Home Affairs 1996 2 SA 710
(D); Tettey v Minister of Home Affairs 1999 1 BCLR 68 (D); Moletsane v Premier of the Free State
1995 9 BCLR 1285 (O) 1288, 1996 2 SA 95 (O) 98; ABBM Printing and Publishing Pty Ltd v
Transnet Ltd 1997 10 BCLR 1429 (W), 1998 2 SA 109 (W) par 16.1; Aquafund (Pty) Ltd v Pre-
mier of the Western Cape 1997 7 BCLR 907 (C) 916; Goodman Bros (Pty) Ltd v Transnet Ltd 1998 8
BCLR 1024 (W) 1033.
105 Bel Porto School Governing Body v Premier of the Western Cape 2002 9 BCLR 891 (CC), 2002 3 SA
265 (CC) para 159; King William’s Town TLC v Border Taxi Alliance Taxi Association 2002 4 SA
152 (E).
106 Bel Porto School Governing Body v Premier of the Western Cape 2002 9 BCLR 891 (CC), 2002 3 SA
265 (CC) para 159.
107 Koyabe v Minister for Home Affairs 2009 12 BCLR 1192 (CC), 2010 4 SA 327 (CC) para 62.
108 Investigating Director, Serious Economic Offences v Gutman NO 2002 4 SA 230 (SCA).
110
finding. A reasonable reader who has knowledge of the context of the administra-
tive action concerned must be able to understand the reasons. If reasons refer to an
extraneous source, the reasonable reader must be able to identify that source. A
court may only make an order for reasons to be furnished if it concludes that the
decision-maker did not give reasons at all, or that what are purported to be “rea-
sons” do not in law constitute reasons. Should the person whose rights or interests
are affected by an administrative action contend that the reasons given do not justify
the action, the appropriate remedy is to have the action reviewed and not to attempt
to force the decision-maker to provide better reasons or to supply particulars to the
111
reasons.
________________________
111 Commissioner of the South African Police Service v Maimela 2004 1 BCLR 47 (T) 51–53.
Chapter 27
Access to courts
Criminal procedure
The right to enforce the Bill of Rights
1 Access to courts 477

2 Criminal procedure 486
3 The right to enforce the Bill of Rights 492
1 Access to courts
1.1 Section 34 477
1.4 Justification for non-compliance with duties (limitation of the right) 482
1.1 Section 34
34 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 or, where appropriate, another
independent and impartial tribunal.

The right protects the interests of bearers of the right in disputes to which legal
rules can be applied.
Disputes between individuals usually involve differences of opinion about other
1
rights. The interests and conduct of individuals protected by other rights are also
protected by the guarantee that justiciable disputes about such rights may be re-
solved by access to independent and impartial courts in open and fair hearings. The
right to access to courts also protects one’s right to meaningful assistance in all the
2
processes. The courts often state that the main purpose of this right is to secure
3
good order because self-help could destroy good order. However, although good
order may be a purpose for the limitation of the right, like all the other rights this is
an individual right that protects individual conduct and interests; it does not exist
primarily for the sake of community interests.
________________________
1 For a discussion of this overlap, see Rautenbach IM “Die samehang van die reg op gesin- of
ouerlike sorg en die reg op toegang tot die howe” 2012 TSAR 559, 570–571.
2 Budlender G “Access to courts” 2004 SALJ 339–341.
3 Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC), 2000 1 SA 409 (CC) paras 18,
20. See, also, First National Bank of SA v Land Bank; Sheard v Land Bank of SA 2000 8 BCLR 876
(CC), 2000 3 SA 626 (CC) para 6; President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 8
BCLR 786 (CC), 2005 5 SA 3 (CC) para 45.
477
Section 34 applies only to disputes that can be resolved by the application of law.
A dispute’s potential for social conflict, equality of arms and court practicalities in
4
respect of resolving a dispute are not requirements. Neither is it a requirement that
before section 34 can be invoked applicants must convince the court that a claim is
5
“enforceable” or “justifiable”, or that “pre-existing rights” are involved. The
enforceability or justifiability or the existence or not of “pre-existing rights” usually
constitute the disputes in respect of which section 34 guarantees a right to have
access to courts. The only question is whether legal rules exist in terms of which
disputes concerning enforceability, justifiability and pre-existing rights may be
resolved.
In Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions:
Zuma v National Director of Public Prosecutions, the court stated that although sec-
tion 34 guarantees that persons whose rights have been violated are not barred
from procedural and other obstacles to obtain relief from the courts, section 34
cannot be interpreted to grant standing ipso facto to persons who allege violations
of their rights, but who have already received a full and proper hearing in
another court of law; such an interpretation would nullify all the existing rules of
6
standing.
All natural persons are bearers of the right. The nature of the right is such that
juristic persons may also be bearers.
In Hallowes v The Yacht “Sweet Waters”, the court held that a juristic person does not
7
have the right to present its own case at a trial. In Lees Import and Export v Zimbabwe
Banking Corporation, the approach in the Hallowes was rejected. The court stated that,
to the extent that the alter ego of a juristic person may act as effectively as the juristic
person itself, a juristic person may elect to exercise its right to a fair hearing either
8
through the agency of a legal practitioner or through its alter ego. In Mital Steel SA
Ltd t/a Vereeniging Steel v Pipechem CC the court held that the rule that a juristic
person has to be represented in the high court by an attorney had its origin in
English common law and that the rule has never been incorporated in South
African legislation. In South Africa the rule is not applied in an inflexible way; a
court may in order to avoid injustice allow “a one person company to be represented
at a court hearing by its alter ego”; the test to be applied involves weighing up the
inconvenience caused by having to deal with an unqualified person against the
9
injustice limiting a juristic person’s access to court.
All organs of state are bound by the right. The nature of the right is such that private
persons are bound by the duty not to interfere with the exercise of the right by
others.
________________________
4 Contra Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2005 3 589
(CC) paras 61–63.
5 Contra Road Accident Fund v Makwetlane 2005 4 SA 51 (SCA) paras 45–47 and Engelbrecht v Road
Accident Fund 2007 5 BCLR (CC), 2007 6 SA 96 (CC) paras 21–24.
6 Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions: Zuma v National
Director of Prosecutions 2009 3 BCLR 309 (CC).
7 Hallowes v The Yacht “Sweet Waters”, 1995 2 BCLR 172 (D) 180, 1995 2 SA 270 (D).
8 Lees Import and Export v Zimbabwe Banking Corporation 1999 4 SA 1119 (ZSC) 1128–1129.
9 Mital Steel SA Ltd t/a Vereeniging Steel v Pipechem CC 2008 1 SA 640 (C) para 26.
Chapter 27 Access to courts – Criminal Procedure – Right to enforce the Bill of Rights 479
The state must establish courts and other tribunals or forums to provide for their
proper functioning and to protect bona fide litigants.10 The mechanisms which the
state must provide, include legislative frameworks, procedures, institutions (such as
courts) and the infrastructure to facilitate the execution of court orders.11
The courts must be impartial.
Although the functional independence of the courts is a principle which protects
them against outside interference, the individual also has a right that the courts
12
must be impartial. The impartiality of a court deals with a court’s attitude to the
issues and parties in a particular case.13 Courts must apply the law without favour or
14
prejudice. The rule against bias provides that presiding judicial officers in any case
must voluntarily, or on request, recuse themselves if there is reasonable apprehen-
sion that they, on account of partiality, prejudice or any other recognised ground,
may give a judgment other than one that which should be given by law. This rule
now forms part of the right to a fair trial in section 34. The test for bias is “whether a
reasonable, objective and informed person would on the correct facts reasonably
apprehend that the judge has not or will not bring an impartial mind to bear on the
adjudication of the case that is a mind open to persuasion by the evidence and the
submission of counsel”.15
In Bernert v ABSA Bank Ltd, the Constitutional Court provided the following guide-
16
lines:
• The prior association that a judicial officer has only becomes relevant when such an
association gives rise to a reasonable apprehension of bias.
• In respect of financial interests, the test is whether there is a reasonable possibility
that the outcome of the proceedings would affect the judicial officer’s interests.
The nature and extent of the financial interest are relevant considerations.
• Even in situations where there is no realistic possibility that the outcome of a case
would affect a judicial officer’s interest or shareholding, it is nevertheless desirable
that the judicial officer should disclose the nature, extent and value of his or her in-
terest to the parties, no matter how small the interest may be.
• It is not in the interest of justice to permit a litigant, where the litigant has knowl-
edge of all the facts upon which a recusal is sought, to wait until an adverse judg-
17
ment before raising the issue of recusal.
________________________
10 Bernstein v Bester 1996 4 BCLR 449 (CC), 1996 2 SA 751 (CC) para 51; De Lange v Smuts NO
1998 7 BCLR 779 (CC), 1998 3 SA 785 (CC) paras 31–32; Beinash v Young 1999 2 BCLR 125
(CC), 1999 2 SA 116 (CC) para 17; President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 8
BCLR 786 (CC), 2005 5 SA 3 (CC) paras 41–43.
11 President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 8 BCLR 786 (CC), 2005 5 SA 3 (CC) para
41.
12 See ch 10 paras 3.2, 3.3 and 3.4 and De Lange v Smuts NO 1998 7 BCLR 779 (CC), 1998 3 SA
785 (CC); President of the RSA v SARFU 1999 2 BCLR 175 (CC), 1999 2 SA 14 (CC); Freedom of
Expression Institute v President of the Ordinary Court Martial NO 1999 3 BCLR 261 (C), 1999 2 SA
471 (C).
13 Bangindawo v Head of the Nyanda Regional Authority 1998 3 BCLR 314 (Tk) 325–327.
15 President of the RSA v SARFU 1999 7 BCLR 725 (CC), 1999 4 SA 147 (CC) para 48; Jaipal v S
2005 5 BCLR 423 (CC), 2005 4 SA 581 (CC) paras 30–31; S v Basson 2005 12 BCLR 1192 (CC),
2005 1 SA 171 (CC) para 25; Van Rooyen v The State 2002 8 BCLR 810 (CC), 2002 5 SA 246
(CC) para 32; De Lacy v South African Post Office 2011 9 BCLR 905 (CC) para 68; Stainbank v
South African Apartheid Museum at Freedom Park 2011 10 BCLR 1058 (CC) para 35.
16 Bernert v ABSA Bank Ltd 2011 4 BCLR 329 (CC) paras 45, 54, 56, 57, 75, 78.
17 See De Lacy v South African Post Office 2011 9 BCLR 905 (CC) para 76 in respect of bias based on
incorrect findings.
The right to fair and public trial has major implications for criminal and civil
procedure.
Whereas fair criminal proceedings are dealt with in section 35(3) of the Constitu-
tion, the right to a fair and public trial forms the basis for the recognition of various
18
constitutional rights relating to civil procedure. (Other rights which could have an
impact of civil procedure are the rights to equality, personal freedom and security,
privacy and access to information).19 Apart from the duty of the state to institute
courts and that the courts must be composed to be independent and that they must
function impartially, the rights in respect of civil procedure include the following:
• a right to equality in civil proceedings;
• a right to information concerning the hearing and the opposition’s case;20
21
• a right to be heard and to adduce evidence,
• a right of non-parties to the proceeding not to be affected by adverse orders;22
23
• a right to reasons for court decisions;
24
• a right to appeal;
________________________
18 Besserglik v Minister of Trade, Industry and Tourism 1996 6 BCLR 745 (CC), 1996 4 SA 331 (CC)
paras 9–10; Pharmaceutical Society of SA v Minister of Health; New Clicks SA (Pty) Ltd v Tsahabalala-
Msimang 2005 6 BCLR 576 (SCA) para 30. See Theophilopoulus C “Constitutional transforma-
tion and fundamental reform of civil procedure” 2016 TSAR 68; De Vos W “Civil procedural
law and the Constitution of 1996; an appraisal of procedural guarantees in civil proceedings”
1997 TSAR 444.
19 Theophilopoulus C “Constitutional transformation and fundamental reform of civil proce-
dure” 2016 TSAR 68. The author also refers (on 70) to the striking similarity between s 34 and
rule 1(1) of the Magistrates’ Courts rules which was formulated some 70 years ago and which
states that the rules must be applied to promote access to the courts and to ensure that dis-
putes are resolved by the application of law before a public hearing.
20 De Beer v North Central Local Council and South Central Local Council 2001 11 BCLR 1109 (CC)
paras 10, 11, 13.
21 In Geuking v President of the RSA 2004 9 BCLR 895 (CC), 2003 3 SA 34 (CC) paras 44–45 upheld
the validity of the provision in s 10(2) of the Extradition Act 67 of 1962 that a magistrate
who holds an extradition hearing must accept a certificate by the requesting state as conclusive
that there is sufficient evidence to warrant prosecution in the requesting state; the procedure
is but one step in a series of extradition measures and it is appropriate for the legislature
to relieve the magistrate of the task of deciding an issue unrelated to South African law.
National Director of Public Prosecutions v Mohamed NO 2003 5 BCLR 476 (CC) upheld the validity
of s 38 of the Prevention of Organised Crime Act 121 of 1998 which provided for temporary
preservation of property orders; s 38 could be interpreted in conformity with the Constitution
to include the granting of an a rule nisi together with an interim preservation and seizure
order.
22 Stopforth Swanepoel and Brewis Incorporated v Royal Anthem Investments (Pty) Ltd 2014 12 BCLR
1465 (CC), 2015 2 SA 539 (CC) paras 24, 25, 27; MEC for Health, Gauteng v Lushaba 2016 8
BCLR 1069 (CC), 2017 1 SA 106 (CC) para 18 (invalidating a court order authorising a mem-
ber of the executive to identify officials who should pay costs in their personal capacity al-
though they did not appear before the court).
23 Mphahlele v First National Bank of SA Ltd 1999 3 BCLR 253 (CC), 1999 2 SA 667 (CC) para 12;
Strategic Liquor Services v Mvumbi NO 2010 (2) SA 92 (CC), 2009 10 BCLR 1046 (CC) para 17;
Greenfields Drilling CC v Registrar of the Supreme Court of Appeal 2010 11 BCLR 1113 (CC) para 3;
Beyers v Elf regters van die Grondwetlike Hof 2002 10 BCLR 1001 (CC) para 9.
24 Besserglik v Minister of Trade, Industry and Tourism 1996 6 BCLR 745 (CC), 1996 4 SA 331 (CC).
De Beer v Raad vir Gesondheid 2004 3 BCLR 284 (T) upheld the validity of the provision in
s 42(1A) of Health Professions Act 56 of 1974 that when an appeal against a penalty, erasure or
suspension is lodged with the high court, the penalty against which the appeal is lodged shall
remain effective until the appeal is heard.
25
• a right to access to legal representation; and
26
• a right to self-representation.
Delay or failure by a court to deliver judgment is unfair and may frustrate the right
of an applicant to apply to a higher court for leave to appeal.27
The right to fair, impartial and public hearings can be applied to private arbitration
In Lufumo Mphaphuli and Associates (Pty) Ltd v Andrews, the Constitutional Court con-
sidered the relationship between private arbitration and the right to a fair and public
trial in section 34. The guidelines which the court provided are limited and tentative.
28
The court reached the following conclusions:
(a) Section 34 does not apply directly to private arbitration. It seems as if the court as-
sumed that indirect application of the right means to a private arbitration agree-
ment means that a right is not waived, but the parties have chosen (unilaterally?)
not exercise their rights. In view of the distinction made in chapter 16 paragraphs
4 and 5 between waiver and a unilateral choice not to exercise a right, this con-
struction is not correct.
(b) Section 34 may perhaps indirectly influence the interpretation of private arbitra-
tion legislation and the development of the common law. This was not decided,
because no argument was addressed to the court on this issue.
(c) Clauses in arbitration agreements which are contrary to public policy (for exam-
ple, clauses which provide expressly that unfair procedures may be followed) are
null and void. The court refused to express an opinion on the role section 34 in
this regard.
(d) The Constitution requires a “reasonably strict” construction of the grounds in sec-
tion 33(1) of the Arbitration Act 42 of 1965 for setting aside arbitration awards:
“courts must not be too quick to find fault with the manner in which an arbitration
has been conducted, and too willing to conclude that the faulty procedure is un-
fair or constitutes gross irregularity within the meaning of section 33(1)”; unfair-
ness in arbitration proceedings must not be considered as everything that is in
conflict with the Uniform Rules of Court.
These hesitant conclusions virtually immunise private arbitration from constitutional
29
scrutiny. The conclusions are wrong because the court overlooked the effect on pri-
30
vate arbitration of the general provisions in sections 8 and 36 of the Constitution.
The court did not pay attention to the question whether a private arbitrator who is
appointed in terms of an arbitration agreement contract is bound by guarantees in
section 34 under section 8(2) of the Constitution. The nature of the right to fair and
________________________
25 Although he states that legal representation in civil matters in not a right but a contractual
relationship, Theophilopoulus C “Constitutional transformation and fundamental reform of
civil procedure” 2016 TSAR 72, 73 remarks that “a skewed allocation of legal aid [to indigent
civil litigants] may well be construed as an unjustifiable infringement of a litigant’s right to ac-
cess civil courts”.
26 Theophilopoulus C “Constitutional transformation and fundamental reform of civil proce-
dure” 2016 TSAR 73 n 23.
27 Pharmaceutical Society of SA v Minister of Health 2005 6 BCLR 576 (SCA) para 32 – “where there is
deliberate obstructionism on the part of the court of first instance or sheer laxity or unjustifi-
able or inexplicable inaction, or some ulterior motive”, the Supreme Court of Appeal may con-
sider an application for leave to appeal before the court a quo has decided it.
28 Lufumo Mphaphuli and Associates (Pty) Ltd v Andrews 2009 6 BCLR 527 (CC), 2009 4 SA 529
(CC) paras 214, 215, 216, 220, 221, 236.
29 In Total Support Management v Diversified Health Systems (SA) 2002 4 SA 661 (SCA) para 25 the
Supreme Court of Appeal earlier said that it is a moot question whether the provisions of s 34
of the Constitution apply “to private proceedings before an arbitrator or whether they must be
restricted to statutorily established adjudicatory institutions”.
30 See Rautenbach IM “Private arbitrasie en die handves van regte” 2010 TSAR 185–201.
public hearing before a court is such that it is indeed capable of being applied to
arbitrators in private arbitration hearings. Like in the case of presiding judicial
officers, the discretion of private arbitrators to regulate procedure cannot be under-
stood to include a discretion to limit rights without complying with the limitation
31
requirements.
1.4 Justification for non-compliance with duties (limitation of the right)

The exclusion of the jurisdiction of the courts in any justiciable matter (so-called
32
ouster clauses) and any other limitation of free access to courts and impartial, fair
and public hearings will be invalid if the requirements for the limitation of rights are
not complied with. The courts have considered various limitations of the right.
Seizure of property, sales in execution. A provision in a statute which permits a creditor to
seize without a court order the property of a debtor and to cause it to be sold to secure
payment of a debt, denies the debtor the protection of the judicial process and judicial
33
supervision. The limitation by the purpose to save costs. The seizure and impound-
ment of trespassing livestock and their sale in execution without judicial intervention
34
was also invalidated. However, the forfeiture without judicial intervention of unlaw-
fully held foreign currency in terms of exchange control regulations was held not to
violate the right to access to courts, because the decision to forfeit was an administra-
tive decision subject to review by a court of law and because the limitation was less se-
35
rious than the seizure of land or stray cattle.
Attachment orders in respect of salaries. A statutory provision which authorises a clerk of
the court without judicial oversight to issue an attachment order that an employer
must pay specified emoluments out of the salary of an employee to a judgment credi-
36
tor of the employee was invalidated. Similarly, provision which empowered the state
as an employer to recover monies wrongly paid to its employees directly from their sal-
aries or wages without agreement or judicial supervision was invalidated because the
provision gave the state a free rein to deduct amounts without recourse to a court of
37
law.
Prescription periods and statutory time limits on initiating action. The Constitutional Court
invalidated the following: prescription periods of six months, in the case of section 113
38
of the Defence Act 44 of 1957 and of three months, in the case of section 68(4) of
39
the Mental Health Act 18 of 1973; a requirement in section 2(1)(a) of the Limita-
tion of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 that a
________________________
31 See in respect of judicial officers, SABC v National Director of Public Prosecution 2007 2 BCLR 167
(CC), 2007 1 SA 523 (CC) para 90 and Independent Newspapers (Pty) Ltd v Minister of Intelligence
Services 2008 8 BCLR 771 (CC), 2008 5 SA 31 (CC) para 172.
32 See Staatspresident v United Democratic Front 1988 4 SA 830 (A) on how ouster clauses were dealt
with before 1994. See the Abolition of Restrictions on the Jurisdiction of Courts Act 88 of 1996.
33 Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC), 2000 1 SA 409 (CC). See also
First National Bank of SA v Land Bank; Sheard v Land Bank of SA 2000 8 BCLR 876 (CC), 2000 3
SA 626 (CC); Japhta v Schoeman; Van Rooyen v Stoltz 2005 1 BCLR 78, 2005 2 SA 140 (CC) paras
43-44, 62-64; Gundwana v Steko Development 2011 8 BCLR 792 (CC), 2011 3 SA 608 (CC) paras
37-41.
34 Zondi v MEC for Traditional and Local Government 2005 4 BCLR 347 (CC), 2006 3 SA 1 (CC).
35 Armbruster v Minister of Finance 2007 12 BCLR 1283 (CC) paras 56–61.
36 University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 12 BCLR
1535 (CC), 2016 6 SA 596 (CC) paras 129, 133, 153 invalidating s 65J(2)(a) and (b) of the
Magistrates’ Court Act 32 of 1944.
37 Public Servants Association obo Olufunmilayi Itunu Ubogu v Head of Department of Health, Gauteng
2018 2 BCLR 184 (CC) paras 64, 65, 67, invalidating s 38(2)(b)(i) of the Public Service Act 103
of 1994.
38 Mohlomi v Minister of Defence 1996 12 BCLR 1559 (CC), 1997 1 SA 124 (CC).
39 Potgieter v LUR: Gesondheid, Provinsiale Regering, Gauteng 2001 11 BCLR 1175 (CC).
local authority be given written notice of legal proceedings within 90 days of the day
40
on which the debt becomes due; a requirement in the regulations issued under the
Road Accident Fund Act 56 of 1996 that the Fund was not liable for a claim to com-
pensation for damages in which the identity of neither the owner nor the driver of the
vehicle which caused the damage has been established, unless the victim submits “if
reasonably possible, within 14 days after being in a position to do so, an affidavit to the
41
police in which particulars of the occurrence concerned were fully set out”; a time
limit of 30 days, in section 78(2) of the Promotion of Access to Information Act 2 of
42
2000, for approaching a court to challenge aspects of the application of the Act. In
Road Accident Fund; Minister for Transport v Mdeyide, the Constitutional Court confirmed
the validity of section 23(1) of the Road Accident Fund Act 56 of 1996 which provides
that claims against the Fund in respect of damage arising from the driving of a motor
vehicle in the case where the identity of either the driver or the owner has been estab-
lished, will be extinguished by prescription if they are not instituted within three years
from the date the cause of action arose. The court noted that the time period is gen-
erous and not too severe and that the legislature could not have enacted less severe
43
measures to secure the proper administration of the Fund. In Njongi v MEC, Depart-
ment of Welfare, Eastern Cape, the Constitutional Court expressed doubt “whether pre-
scription could legitimately arise when the debt that is claimed is a social grant; where
the obligation in respect of which performance is sought is one which the Government
is obliged to perform in terms of the Constitution; and where non-performance of the
44
Government represents conduct that is inconsistent with the Constitution”. The
court did not decide the issue because the question was not raised in the court a quo.
However, assuming that the obligation in the particular case, namely to provide social
grants, was a debt for the purposes of the Prescription Act 68 of 1969, prescription
“would begin to run (if it is indeed applicable in a case of this kind) as soon as the
45
Provincial Government disavowed reliance on the administrative action concerned”.
Contractual limitations of the right. In Barkhuizen v Napier, the applicant argued that a
clause in a short-term insurance policy which required the institution of court pro-
ceedings within 90 days after the insurance company had rejected the claim was con-
trary to public policy in that it violated the right to access to court in section 34 of the
Constitution. The Constitutional Court held that there was no evidence before it to
suggest that the contract was not freely concluded between persons with equal bar-
gaining power or that the applicant was not aware of the clause or what the reasons for
46
the applicant’s non-compliance with the time clause were. In a well-argued minority
judgment, Sachs J held that there was clear evidence before the court about the almost
unassailable bargaining positions of insurance companies vis-à-vis the public. In an-
other case the Constitutional Court recognised that agreements which prevent parties
from having a dispute heard by courts limit the right to access to court. However, the
court did not consider the constitutionality of a paragraph in a settlement agreement
________________________
40 Moise v Transitional Local Council of Germiston 2001 8 BCLR 765 (CC), 2001 4 SA 491 (CC). See,
also, Zantsi v Chairman, Council of State, Ciskei 1995 2 SA 534 (Ck) 566F; Luiting v Minister of De-
fence 1996 4 BCLR 581 (CC), 1996 2 SA 909 (CC) para 6; Mthetwa v Diedericks 1996 7 BCLR
1012 (N); Bellocchio Trust Trustees v Engelbrecht NO 2002 3 SA 519 (C).
41 Engelbrecht v Road Accident Fund 2007 5 BCLR 457 (CC), 2007 6 SA 96 (CC).
42 Brümmer v Minister of Social Development 2009 11 BCLR 1075 (CC), 2009 6 SA 323 (CC).
43 Road Accident Fund; Minister for Transport v Mdeyide 2011 1 BCLR 1 (CC), 2011 2 SA 293 (CC)
paras 65, 78, 81, 82, 91. For analyses of the judgment see Bilchitz D “How should rights be lim-
ited?” 2011 TSAR 568; Rautenbach IM “Overview of Constitutional Court decisions on the Bill
of Rights” 2011 TSAR 342, 356–357
44 Njongi v MEC, Department of Welfare, Eastern Cape 2008 6 BCLR 571 (CC), 2008 4 SA 237 (CC)
para 42.
45 Njongi v MEC, Department of Welfare, Eastern Cape 2008 6 BCLR 571 (CC), 2008 4 SA 237 (CC)
para 56.
46 Barkhuizen v Napier 2007 7 BCLR 691 (CC), 2007 5 SA 323 (CC) paras 66, 86.
in which one party agreed not to oppose an application by the other party for sum-
mary judgment, because the defendant in that case did not attempt to enforce the
47
paragraph and the applicant had in fact raised defences in the lower court. In yet an-
other case, the court upheld the validity of a clause ousting access to courts in a sepa-
ration agreement because the clause related to the settlement of a specific dispute in
48
the applicant’s favour and did not apply to future disputes.
Civil immunity in terms of amnesty. The amnesty provided for in section 20(7) of the
Promotion of National Unity and Reconciliation Act 34 of 1995 was not inconsistent
with the right to access to the courts in section 22 of the Interim Constitution because
section 22 was qualified by the epilogue to the Interim Constitution.49
Requirements concerning leave to appeal. The requirements concerning leave to appeal in
civil proceedings in section 20(4)(b) of the Supreme Court Act 59 of 1959 are not un-
constitutional, because the procedure enables a higher court to make an informed
50
decision as to the prospects of success on appeal.
Measures to contain vexatious litigation and other forms of “abuse of process”. The provisions
concerning vexatious proceedings in the Vexatious Proceedings Act 3 of 1956 are not
unconstitutional; the purpose of the provision is to protect bona fide litigants, the proc-
ess of the courts and the administration of justice. The procedure and considerations
to be taken into account strike an appropriate balance of proportionality between
51
means and ends.
Mandatory warrants of arrest. The Constitutional Court confirmed the constitutionality
of the provision in section 8 of the Domestic Violence Act 116 of 1998 that a court
must, even in the absence and without the knowledge of the respondent, authorise a
warrant of arrest when it issues a protection order. Not giving notice to a respondent is
not uncommon in situations where a party who feels threatened, approaches a court
52
for urgent relief.
Unreasonable delays in dealing with applications for leave to appeal. When issues are urgent
and the delay may cause substantial prejudice, an unreasonable delay in dealing with
an application for leave to appeal interferes with a litigant’s constitutional right to
have access to courts. An unreasonable delay may not be deliberate. The remedy for
such a violation of the right to access to court by a lower court would be that a superior
court may under its inherent right to regulate and protect its own process in section
173 of the Constitution decide to grant an application for leave based on a construc-
53
tive refusal of leave to appeal.
Failure to provide mechanisms to execute eviction orders. In President of RSA v Modderklip
Boerdery (Pty) Ltd, the Constitutional Court dealt with a serious conflict of interests
ensuing from court orders to bring an end to the unlawful occupation of private prop-
erty by homeless people. The court held that the state’s duties in terms of section 34
entail more than to provide the institutions and mechanisms in respect of fair and
open trials; the state “is also obliged to take reasonable steps, where possible, to ensure
that large-scale disruptions in the social fabric do not occur in the wake of the execu-
tion of court orders” and what is reasonable in this regard depends taking into ac-
count “the nature of the right or interest that is at risk as well as the circumstances of
________________________
47 Eke v Parsons 2015 11 BCLR 1319 (CC), 2016 3 SA 37 (CC) paras 44, 46.
48 Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd 2016 12 BCLR (CC) paras 23, 24.
49 AZAPO v President of the RSA 1996 8 BCLR 1015 (CC), 1996 4 SA 671 (CC).
50 Besserglik v Minister of Trade, Industry and Tourism 1996 6 BCLR 745 (CC), 1996 4 SA 331 (CC)
para 10.
51 Beinash v Young 1999 2 BCLR 125 (CC), 1999 2 SA 116 (CC) para 21. See, also, Price Waterhouse
Inc v National Potato Co-operative Ltd 2004 9 BCLR 930 (SCA) para 50.
52 Omar v Government of the RSA 2006 2 BCLR 253 (CC), 2006 2 SA 289 (CC).
53 Minister of Health v New Clicks SA (Pty) Ltd 2006 1 BCLR 1 (CC), 2006 2 SA 311 (CC) paras 68,
72.
54
each case”. It was unreasonable for the state to do nothing to assist the owners of the
property to evict the unlawful occupiers.
Access by the public and media to court proceedings and court records. The right to a public
trial in section 34 of the Constitution is one of the rights which guarantees a right to
55
“open justice”. These rights are not absolute and may be limited under the general
limitation clause. The mere classification of a document under the operative legisla-
tion as “confidential”, “secret” or “top secret” does not oust the jurisdiction of the
court to decide whether it should be protected from disclosure to the public or the
media. A court itself limits the rights concerned when it decides that access may be
denied in certain circumstances. In exercising its discretion, section 173 of the Consti-
tution which provides authorisation to regulate its own procedure is the “law of gen-
eral application” in terms of which the court acts. The court considered all the factors
56
referred in section 36(1)(a) to (e) when it considered the issue at hand.
Furnishing reasons for court decisions. The Constitutional Court listed the benefits of the
furnishing of reasons as follows: it explains to the parties and to the public why a case
has a particular outcome; it is essential for the appeal process; it assists an appeal court
to evaluate the judgment of a lower court; it provides guidance to a lower court; and it
57
curbs arbitrary judicial decisions. The refusal of a court of final instance to give rea-
sons for its refusal to grant leave to appeal is not inconsistent with the right to a fair
58
trial.
Statutory restrictions on the exercise of delictual common-law remedies. In Jooste v Score Super-
market Trading (Pty) Ltd, the Constitutional Court stated that the right of access to court
“does not call for the retention of all common law rights of action which existed at any
59
stage”. In Law Society of South Africa v Minister of Transport, the court somehow quali-
fied this general statement by clearly implying that a statutory limitation of common-
60
law delictual remedies must be justifiable in terms of the general limitation clause.
Provisional sentence. Rule 18 of the Uniform Rules of the High Court was considered to
be a limitation of the right to a fair hearing to the extent that the rule did not give a
court discretion to refuse provisional sentence where (a) the nature of the defence
raised does not allow the defendant to show a balance of success in his or her favour
with the benefit of oral evidence; (b) the defendant is unable to satisfy the judgment
debt; and (c) no narrowly described “outside circumstances” prevail. The exclusion of
the court’s discretion under these circumstances went further than was necessary to
protect the interests of the plaintiff. In its order, the court developed the common-law
61
so that courts will in future have a discretion in this regard.
________________________
54 President of RSA v Modderklip Boerdery (Pty) Ltd 2005 8 BCLR 786 (CC), 2005 5 SA 3 (CC) paras
43–51.
55 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services 2008 8 BCLR 771 (CC), 2008
(5) SA 31 (CC) para 39. The other rights are the right to freedom of the press and media
which include the freedom to receive and impart information or ideas in s 16(1)(a) and (b),
and the right to a public trial in s 35(3)(c).
56 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services 2008 8 BCLR 771 (CC), 2008 5
SA 31 (CC) paras 44, 45, 53, 55; see particularly the separate concurring judgment paras 177–
182.
57 Mphahlele v First National Bank of SA Ltd 1999 3 BCLR 253 (CC), 1999 2 SA 667 (CC) para 12;
Strategic Liquor Services v Mvumbi NO 2010 (2) SA 92 (CC), 2009 10 BCLR 1046 (CC) para 17;
Stuttafords Stores (Pty) Ltd v Salt of the Earth Creations (Pty) Ltd 2010 11 BCLR 1134 (CC), 2011 1
58 Mphahlele v First National Bank of SA Ltd 1999 3 BCLR 253 (CC), 1999 2 SA 667 (CC) para 15.
See also, Beyers v Elf regters van die Grondwetlike Hof 2002 10 BCLR 1001 (CC) para 9. The provid-
ing of reasons by a magistrate for refusal of an application for leave to appeal in criminal cases
was discussed in S v Steyn 2001 1 BCLR 52 (CC), 2001 1 SA 1146 (CC) para 9 n 12.
59 Jooste v Score Supermarket Trading (Pty) Ltd 1999 2 BCLR 139 (CC), 1999 2 SA 1 (CC) para 20.
60 Law Society of South Africa v Minister for Transport 2011 2 BCLR 150 (CC) para 103.
61 Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of SA t/a the Land Bank
2011 5 BCLR 505 (CC), 2011 3 SA 1 (CC) paras 52, 64, 78.
State aided legal representation at commissions of inquiry. Section 34 deals with disputes
“that can be resolved by the application of law” and that the findings of a commissions
of inquiry are not necessarily to be equated to a resolution of legal disputes by courts
of law; it was a contestable issue whether the objective of equality of arms before a
62
commission translates into a right to legal representation at state expense.
Inhibiting litigants to raise defences. The suspension during litigation between debtors
and creditors of the common-law in duplum rule that arrear interest stops accruing
63
when the sum of unpaid interest equals the amount of the outstanding capital, unjus-
tifiably limited the right of debtors to raise defences freely which is part of the right to
fair civil trials in section 34. The court held that the suspension of the rule was over-
broad because it did not distinguish between debtors with frivolous defences and
debtors with bona fide defences against powerful creditors. Although the same right of
creditors is limited by the application of the rule during litigation, in South Africa the
“sheer balance of financial muscle” of creditors made them less vulnerable than debt-
ors who cannot afford legal counsel, and there were less intrusive ways to discourage
64
debtors from raising factitious defences.
2 Criminal procedure
2.1 General 486
2.2 Arrested persons 486
2.3 Detained persons 487
2.4 Accused persons 488
2.1 General
Section 35 guarantees a series of rights which mainly relates to the investigation and
prosecution of crime.
The rights in section 35 protect the conduct and interest of bearers of the rights that
may be affected when crimes are investigated and prosecuted.
The protected conduct and interest are also protected by other rights, for example,
the right to human dignity and the right to personal freedom and security. It is an
example of a group of rights which applies to the exercising of a particular state
function, in this case the investigation, prosecution and punishment of crimes.
Perhaps more than any other group of rights in the Bill of Rights, the description of
the duties in section 35 contains so much detail that the consequences of the en-
trenchment of the rights are extensively covered in the law of criminal procedure.
This paragraph contains only brief references to some of the judgments of the
Constitutional Court. For in-depth discussions, the standard works on the law of
criminal procedure should be consulted.
2.2 Arrested persons

Section 35(1) provides that everyone who is arrested for allegedly committing an
offence has the following rights:
(a) The right to remain silent. 65
________________________
62 Magidwana v President of the RSA 2013 11 BCLR 1251 (CC) paras 14–16.
63 According Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 1 SA 811
(SCA).
64 Paulsen v Slip Knot Investments 777 (Pty) Ltd 2015 5 BCLR 509 (CC), 2015 3 SA 479 (CC) paras
66, 84.
65 Thebus v S 2003 10 BCLR 10 (CC), 203 6 SA 505 (CC) para 5: detention and interrogation are
circumstances in which detainees can be intimidated.
(b) The right to be informed promptly of the right and of the consequences of not
remaining silent.66
(c) The right not to be compelled to make any confession or admission that could
67
be used in evidence against that person.
(d) The right to be brought before a court as soon as reasonably possible, but not
later than 48 hours after the arrest, or the end of the first court day after the
expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or
on a day which is not an ordinary court day.
(e) The right, at the first court appearance, to be charged or to be informed of the
reason for the detention to continue, or to be released.
(f) The right to be released from detention if the interests of justice permit, sub-
68
ject to reasonable conditions.
In terms of section 35(4) an arrested person has the right to receive the information
he or she must be given in terms of section 35(1) in a language which she or he
understands.
2.3 Detained persons

Section 35(2) provides that everyone who is detained, including every sentenced
prisoner, has the following rights:
69
(a) The right to be informed promptly of the reason for being detained.
(b) The right to choose and to consult with, a legal practitioner and to be in-
70
formed of this right promptly.
(c) The right to have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would otherwise result, and to
be informed of this right promptly.
(d) The right to challenge the lawfulness of the detention in person before a court,
and if the detention is unlawful, to be released. The Constitutional Court held
that foreigners are protected by s 35(2)(d) and the court invalidated s 34(1)(b)
and (d) of the Immigration Act 13 of 2002 because the authorisation of an
immigration officer to arrest and detain illegal foreigners pending deportation
contained no guidelines on how the officer’s discretion to arrest and detain
________________________
66 Lynn v Krueger 1995 2 BCLR 167 (N); S v Melani 1995 5 BCLR 632 (E), 1995 4 SA 412 (E); S v
Sebejan 1997 8 BCLR 1086 (T); S v Van der Merwe 1997 10 BCLR 1470 (O).
67 S v Mbolombo 1995 5 BCLR 614 (C). In Mhlongo v S; Nkosi v S 2015 8 BCLR 887 (CC) paras 35-
40 the court held that distinction drawn in S v Ndhlovu 2002 2 SACR 325 (SCA) between the
inadmissibility of a confession that implicates a third party and the admissibility of an admis-
sion that implicates a third party violated the right to equality in s 9(1) of the Constitution.
The distinction served no legitimate purpose. The danger to admit statements by co-accused
applies equally to both confessions and admissions. The court did not express itself on the
constitutionality of the common law exception to the exclusion of extra-curial statements in
cases where the statements were made in furtherance of a common purpose or conspiracy, be-
cause the facts did not arise in the case before the court.
68 S 35(1)(f). See S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 7 BCLR 771 (CC), 1999 4
SA 623 (CC).
69 For a discussion of this right, see Naudé B “A suspect’s right to be informed” 2009 SA Public
Law 506.
70 With regard to s 25(1)(c) of the Interim Constitution, see S v Mhlakaza 1996 6 BCLR 814 (C).
had to be exercised and it did not require an automatic judicial review of the
detention before the expiry of 30 calendar days.71
(e) The right to be detained in conditions that are consistent with human dignity,
including the facilities to exercise and the provision, at state expense, of ade-
quate accommodation, nutrition, reading material and medical treatment.72
The common-law residuum principle, in terms of which prisoners enjoy all their
73
rights and freedoms except those taken away by law, now enjoys stronger pro-
tection under the Constitution than before because it is embodied in various
justiciable rights within the Bill of Rights, notably the right to conditions of de-
tention that are consistent with human dignity in section 35(2)(e); the right to
equality in section 9; the right to human dignity in section 10; and the right to
74
lawful, reasonable and procedurally fair administrative action in section 33.
A prisoner has a right to anti-retroviral treatment where it is medically
75
prescribed.
(f) The right to communicate with, and be visited by that person’s spouse or part-
ner, next of kin, and chosen religious counsellor and medical practitioner.
Under section 35(4) a detained person has the right to receive the information he
or she must be given in terms of section 35(2) in a language which she or he under-
stands.
2.4 Accused persons

Section 35(3) provides that every accused person has the right to a fair trial.
Only accused persons are bearers of the right. Persons who have not been accused
76
or against whom charges have been withdrawn are not bearers of the right.
The words “fair trial” describe a comprehensive guarantee. The right to a fair trial
guarantees more than those aspects referred to in section 35(3).77 Fairness must be
substantive, not just procedural.78 The right does not only protect the personal
liberty of an accused person, but protects all interests that may be affected by guilty
verdicts and criminal sanctions.
Section 35(3) provides that the right to a fair trial includes the following rights:
(a) The right to sufficient detail of the charge to answer it.
________________________
71 Lawyers for Human Rights v Minister of Home Affairs 2017 10 BCLR 1242 (CC) paras 12, 46-58. See
also Lawyers for Human Rights v Minister of Home Affairs 2004 7 BCLR 775 (CC), 2004 4 SA 125
(CC) para 45.
72 See iro medical treatment, Van Biljon v Minister of Correctional Services 1997 6 BCLR 789 (C),
1997 4 SA 441 (C); Stanfield v Minister of Correctional Services 2003 12 BCLR 1384 (C), 2004 4 SA
43 (C); E N v Government of the RSA 2007 1 BCLR 84 (D), 2006 6 SA 543 (D). See on access to
electrical power points, Strydom v Minister of Correctional Services 1999 3 BCLR 342 (W).
73 Whittaker and Morant v Roos and Bateman 1912 AD 92 122–123; Goldberg v Minister of Prisons 1979
1 SA 14 (A) 39; Minister of Justice v Hofmeyr 2009 2 SA 373 (ECD) paras 7, 8.
74 Ehrlich v Minister of Correctional Services 1997 4 SA 441 (C) paras 7, 8.
75 Van Biljon v Minister of Correctional Services 1997 4 SA 441 (C); Stanfield v Minister of Correctional
Services 2003 12 BCLR 1384 (C), 2004 4 SA 43 (C); E N v Government of the RSA 2007 1 BCLR 84
(D), 2006 6 SA 543 (D).
76 Zanner v DPP, Johannesburg 2006 11 BCLR 1327 (SCA) para 31.
77 S v Zuma 1995 4 BCLR 401 (CC), 1995 2 SA 642 (CC) para 16; S v Dzukuda; S v Tshilo 2000 11
BCLR 1252 (CC), 2000 1 SA 1252 (CC) para 9; Jaipal v S 2005 5 BCLR 423 (CC) para 27.
78 S v Zuma 1995 4 BCLR 401 (CC), 1995 2 SA 642 (CC) para 16; Western Cape v Kilian 2008 5
BLCR 496 (SCA) para 16.
(b) The right to adequate time and facilities to prepare a defence.
(c) The right to a public trial before an ordinary court.
(d) The right to have the trial begin and concluded without unreasonable delay.
The main factors to be considered in determining whether there has been an
unreasonable delay are the nature of the prejudice suffered, the nature of the
offence, the reasons given for the delay, the nature of the case, whether the de-
lay is systemic, the contribution of the accused in causing the delay and the
79
length of the delay. This right does not cover pre-trial delays. Such delays
must be dealt with on the basis of whether “the delay would inevitably and
80
irremediably taint the overall substantive fairness of the trial”. In respect of
the nature of the crime, the Constitutional Court held that because it has
been accepted that rape and other forms of sexual abuse usually render child
victims unable to report the crime, children cannot bear the responsibility or
blame for the delay of reporting such crimes; adults who commit these crimes
must under no circumstances be permitted to benefit from delays which are
81
directly attributable to the nature of their criminal activities. In Molaudzi v S
the applicant requested for appeal purposes a copy of the trial record of his
conviction in a high court for murder and robbery. He received the copy only
some eight years after his conviction and sentence. The court rejected the
application for leave to appeal because the attack was based on factual findings
of the trial court which was not a constitutional matter which the court could
82
consider.
(e) The right to be present when being tried.
(f) The right to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly.
(g) The right to have a legal practitioner assigned by the state at state expense, if
substantial injustice would otherwise result, and to be informed of this right
83
promptly.
(h) The right to be presumed innocent, to remain silent, and not to testify during
the proceedings.
(i) The right to adduce and challenge evidence.
(j) The right not to be compelled to give self-incriminating evidence.
(k) The right to be tried in a language the accused person understands or, if that is
not practicable, to have the proceedings interpreted in that language.
(l) The right not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was committed or
omitted.
(m) The right not to be tried for an offence in respect of which the accused person
has previously been acquitted or convicted. When irregularities in a trial are so
gross that a court of appeal vitiates the trial without reference to the merits,
________________________
79 Sanderson v Attorney General, Eastern Cape 1997 12 BCLR 1675 (CC), 1998 2 SA 38 (CC) paras
31–35.
80 Bothma v Els 2010 1 BCLR 1 (CC), 2010 2 SA 622 (CC) para 51.
81 Bothma v Els 2010 1 BCLR 1 (CC), 2010 2 SA 622 (CC) paras 50, 65, 66. The court referred to
Van Zijl v Hoogenhout 2005 2 SA 93 (SCA) paras 44, 45.
82 Molaudzi v S 2014 7 BCLR 785 (CC) para 4.
83 In Legal Aid Board v S 2010 12 BCLR 1285 (SCA) para 2: this right is an important safeguard of
fairness in the administration of criminal justice.
there remains neither a conviction nor an acquittal on the merits and the ac-
cused can be retried; in the case of lesser irregularities a court of appeal may be
in a position to consider the merits of the case and to set aside a conviction and
this amounts to an acquittal on merits, a retrial is not permitted.84
(n) The right to the benefit of the least severe of the prescribed punishments, if
the prescribed punishment for the offence has been changed between the time
the offence was committed and the sentencing.
(o) The right of appeal to, or review by, a higher court.85 The Constitutional Court
explained the effect of this right in various judgments. The court invalidated a
provision in the Criminal Procedure Act that convicted persons who were in
prison and who had no legal representation was not entitled to appeal unless a
86
high court judge certified that reasonable grounds for appeal existed. The
right of appeal contemplates that the appeal must be as fair as the trial itself
and that hearing an appeal behind closed doors violated the principle that
87
court proceedings that affect the rights of parties be held in public. The court
invalidated a provision which provided for cases in which the record need not
be sent to the petition judges by the clerk of the magistrates’ court and a provi-
sion that only one judge may reconsider a criminal record to determine
88
whether leave of appeal should be granted. Leave to appeal procedure must
enable an appeal court to make an informed decision on the application and
failure to provide adequate protection against the possibility of wrong convic-
tions and inappropriate sentences constitutes a serious limitation of the right
of appeal.89 An informed decision presupposes that sufficient information be
considered and this implies that the courts must have before them the chal-
90
lenged rulings and the reasons for those rulings. The right of an accused to
be informed about the possibility that a sentence may be increased by an appel-
late court forms part of the right of appeal in section 35(3)(o); an omission in
the common law to provide for a notice requirement when a court of appeal of
its own accord considers an increase in sentence was unconstitutional. The
court rectified this inconsistency in holding that “a notice requirement [ap-
plies] regardless of whether the court or the state is proposing an increase in
sentence either because of conviction for a substituted offence or because the
91
sentence is considered to be too low”.
The courts have held that the right to a fair trial also includes the following:
(i) The general presumption against retrospectivity is part of the general right to
92
a fair trial. The rule against retrospectivity is based on the principle that
________________________
84 Le Grange v S 2010 6 BCLR 547 (SCA) para 30.

85 Automatic review under s 302 of the Criminal Procedure Act 51 of 1977 gives effect to this
right.
86 S v Ntuli 196 1 BCLR 141 (CC), 1996 1 SA 1208 (CC).
87 Shinga v S; O’Connel v S 2007 5 BCLR 474 (CC), 2007 4 SA 601 paras 25, 28, 31.
88 Shinga v S; O’Connel v S 2007 5 BCLR 474 (CC), 2007 4 SA 601 paras 45, 48 and 56.
89 S v Steyn 2001 1 BCLR 52 (CC), 2002 1 SA 1146 (CC) para 36.
90 Qhinga v S 2011 9 BLCR 980 (CC) para 26; S v Steyn 2001 1 BCLR 52 (CC), 2002 1 SA 1146
(CC) para 6.
91 Bogaards v S 2012 12 BCLR 1261 (CC) paras 23, 60–64, 68.
92 Veldman v Director of Public Prosecutions (WLD) 2007 9 BCLR 929 (CC), 2007 3 SA 210 (CC) para
34; Du Toit v Minister of Safety and Security 2009 12 BCLR 1233 (CC), 2009 6 SA 128 (CC) para
23; Van Vuren v Minister of Correctional Services 2010 12 BCLR 1233 (CC) para 52; S v Mhlungu
1995 7 BCLR 793 (CC), 1995 3 SA 896 (CC) paras 37–38.
people must be forewarned that conduct of a certain kind is punishable.93 The

right in section 35(3)(l) is not violated “if the law were to peer over the
shoulder and look to past conduct to determine whether, in conjunction with
present conduct, it evinces pattern of criminality; in particular, a pattern of
racketeering activity” as criminalised in section 2(1)(a) to (g) of the Preven-
94
tion of Organised Crime Act.
(ii) The exercise of a discretion concerning the admissibility of bail records in
criminal proceedings must comply with the right to a fair trial.95
(iii) The right to a fair trial is protected by the provision in section 145 of the
Criminal Procedure Act for the appointment of assessors and although this
aspect of the right is limited by section 147 of the Act in providing that the
trial may be continued in the absence of all the assessors under certain cir-
cumstances, the limitation is justifiable in terms of the general limitation
96
clause.
(iv) The allocation of cases to magistrates by the prosecution would be perceived
by accused persons and any reasonable person as interference in the judici-
ary, as the prosecution could manipulate the outcome of a trial by choosing
certain presiding officers instead of others. The determination of which mat-
ter should be heard by a specific judge or judicial officer should be done by a
senior judge or a senior magistrate. The allocation of trials has to be deter-
97
mined by the judiciary itself.
Section 35(4) provides that an accused person has the right to receive the informa-
tion he or she must be given in a language he or she understands.
Evidence obtained in a manner that violates a right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or be
98
otherwise detrimental to the administration of justice. This provision guarantees
a right, namely a right that evidence which is obtained in a manner that violates
any other right in the Bill of Rights must be excluded. The reason for the existence
of this right is included in the definition of the right, namely that the admission
of unconstitutionally obtained evidence would render the trial of the accused
unfair and would taint the administration of justice. What this second part of the
formulation (“if the admission . . .”) therefore means, is that the unconstitutionally
obtained evidence may indeed be admitted (that is, the right to have it excluded
may be limited) if the state can convince the court the trial will be fair and that the
administration of justice will not be compromised despite the admission of the
evidence. In this respect, the second part of the provision is a specific limitation
clause.
________________________
75.
83.
95 S v Basson 2005 12 BCLR 1192 (CC), 2005 1 SA 171 (CC) para 117.
96 S v Khumalo 2006 9 BCLR 1117 (N).
97 Travers v National Director of Public Prosecutions 2007 3 SA 242 (T) paras 41 and 38.
98 S 35(5). De Vos W “Illegally or unconstitutionally obtained evidence: A South African perspec-
tive” 2011 TSAR 268–282; S v Tandwa 2008 1 SACR (SCA); Matlou v S 2011 1 BCLR 54
(SCA).
3 The right to enforce the rights in the Bill of Rights

3.1 Section 38 492
3.2 General 492
3.3 The persons who may approach a court 492
3.4 “A competent court” and “appropriate relief” 495
3.1 Section 38
38 Anyone listed in this section has the right to approach a competent court, alleging
that a right in the Bill of Rights has been infringed or threatened, and the court may
grant appropriate relief, including a declaration of rights. The persons who may ap-
proach a court are –
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
3.2 General
As discussed in paragraph 1, section 34 of the Bill of Rights guarantees a right to
have any dispute that can be resolved by the application of law decided in a fair
public hearing in a court or, where appropriate, another independent and impartial
99
tribunal or forum. The phrase “disputes that can be resolved by the application of
law” in section 34 includes disputes concerning the application of the Bill of Rights.
In addition, section 38 describes the persons who may approach a competent court
for appropriate relief. A litigant may rely on more than one of the provisions in
100
section 38(a) to (e). Section 38 expands the common-law rules on standing for the
101
purposes of the enforcement of rights in the Bill of Rights. Section 38 is a lex
102
specialis vis-à-vis section 34.
3.3 The persons who may approach a court

(a) Anyone acting in their own interest
The ‘interest’ referred to in this subparagraph includes “the interest required
for the joinder of a party in an action or an application common law, ie a legal
interest in the subject-matter of the litigation which may be affected prejudicially
103
by the judgment of the court”. The person who approaches a court in terms of
________________________
99 Para 1 above.
100 South African National Defence Union v Minister of Defence 1999 6 BCLR 615 (CC), 1999 4 SA 469
(CC) para 4; in Law Society of South Africa v Minister of Transport 2011 2 BCLR 150 (CC), 2011 1
SA 400 (CC) para 7, the Law Society of South Africa, the South African Association of Per-
sonal Injury Lawyers and various voluntary associations who promote the interests of people
with mobility impairment approached the court in their own right, on behalf of their mem-
bers, and in the public’s interests.
101 See Ferreira v Levin, Vryenhoek v Powell 1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC) para 229 for
reasons for the expansion.
102 There are no textual or other interpretive indications that s 38 excludes or qualifies the
application of the right of access to courts and fair trials in s 34 in respect of the enforcement
of rights in the Bill of Rights.
103 Erasmus HJ and Breitenbach AM Superior Court Practice [Service 5] A2–34.
section 38(a) of the Constitution need not be the victim of the infringement or
104
threat of infringement. When applicants have standing because they act in their
own interest, it is not necessary for a court to decide whether they are also covered
by any of the other categories in section 38(b) to (e).105 “Own interest” is wide
enough to cover the interest of a trustee.106 Attorneys who specialise in immigration
law have standing in their own interests to raise the invalidity of regulations issued in
terms of the Immigration Act 13 of 2002 because, as members of the public they
107
could approach the court in their own interests. Legal practitioners have locus
standi in their own interests to approach the Constitutional Court for the confirma-
tion of the invalidation of a presidential proclamation if the proclamation is of
direct and cardinal interest to their field of specialisation; the court emphasised that
the financial interests of legal practitioners in exercising their profession do not
108
constitute “own interests” for the purposes of section 38(a).
(b) Anyone acting on behalf of another person who cannot act in their own name
This provision extends the principle in Wood v Ondangwa Tribal Authority109 in respect
of the right to life and liberty, to all rights guaranteed in the Bill of Rights. The
persons on whose behalf a court is approached must not be in the position to do so
personally and in order to determine whether this is the position it may be taken
into account what their financial status is, whether they have access to lawyers and
110
what difficulties they encounter to obtain legal aid. In the case of an infringement
of a social right that ensues from a discontinuance of a service or benefit, the identi-
ties of those on whose behalf a court is approached need not be accounted for in
111
detail by the applicant, because they are known to the respondent.
(c) Anyone acting as a member of, or in the interest of, a group or a class of persons
Acting as a member of a group or a class of persons provides for the introduction of
so-called class actions for which very limited provision was previously made in South
African law.112 The most important feature of a class action is that other members of
the class, although not formally and individually joined, benefit from and are bound
by the outcome of the litigation unless they invoke prescribed procedures to opt out
113
of it. The Supreme Court of Appeal held that the recognition of class actions
should not be limited to Bill of Rights cases and the court formulated a number of
________________________
105 Japhta v Schoeman; Van Rooyen v Stoltz 2005 1 BCLR 78 (CC), 2005 2 SA 140 (CC) para 11.
106 Van Huyssteen v Minister of Environmental Affairs & Tourism 1995 9 BCLR 1191 (C), 1996 1 SA
283 (C) 301.
107 Minister of Home Affairs v Eisenberg 2003 8 BCLR 838 (CC), 2003 5 SA 281 (CC) para 28.
108 Kruger v President of the RSA 2009 3 BCLR 268 (CC), 2009 1 SA 417 (CC) paras 25–27.
109 1975 2 SA 294 (A). In Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds 1997 8
BCLR 1066 (T) 1075B it was stated that it is conceivable that an organ of state could act on
behalf of people who cannot act in their own name.
(E) 1331.
(E) 1331. See also E v Government of the RSA 2007 1 BCLR 84 (D) para 10.
112 See De Vos W “Reflections on the introduction of a class action in South Africa” 1996 TSAR
639. See the account of the objections against class actions and the answers to the objections
in Ngxusa v Secretary, Department of Welfare, Eastern Cape Provincial Government 2000 12 BCLR
1322 (E) 1331–1333, 1337–1338.
113 Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government v Ngxuza 2001 10
BCLR 1039 (SCA).
requirements which have to be satisfied before court could certify an action as a
114 115
class action. De Vos summarises the requirements as follows:
“(a) There must be an identifiable class of affected people.
(b) There must at least be some issues of fact and/or law that are common to all
members of the class.
(c) The proposed representative must be suitable to represent the class in the pro-
ceedings.
(d) A class action must be the most appropriate means of pursuing the claimants’
claims (ie it must be clear that joinder is not feasible in the circumstances).”
In Mukaddam v Pioneer Foods (Pty) Ltd the Constitutional Court stated that the rules
formulated by the Supreme Court of Appeal in the Childrens’ Rights case must not be
considered to be inflexible and that the application of the rules in that case, which
was not a class action application under section 38(d) of the Constitution, must not
116
be construed to apply to class actions regulated by section 38. De Vos contends
that there are no convincing reasons why the rules cannot be applied to class actions
117
in terms of section 38.
(d) Anyone acting in the public interest
This provision introduces a public interest action to protect the rights in the Bill of
Rights. The Constitutional Court has stated that factors relevant to the determina-
tion of whether an applicant who approaches a court is genuinely acting in the
public interest include the following: the existence of other reasonable and effective
ways to bring the challenge; the nature of the relief sought, including the extent to
which it is of general and prospective application; the range of persons or groups
who may be directly or indirectly affected by any order made by the court; the
opportunity that all those who may be affected have had to present evidence and
argument to the court; the degree of vulnerability of the people affected; the nature
of the infringed right; the consequences of the infringement of the right; and the
118
egregiousness of the conduct complained of. The Constitutional Court also held
that the fact that a person or institution has not been a party to any previous
proceedings does not preclude it from having standing to apply in the public
119
interest for leave to appeal to the Constitutional Court. An amicus curiae may
be permitted to appeal an order of a court where the actual parties to that litigation
are not pursuing an appeal and there is a clear public interest requiring it to
120
lodge an appeal. However, an amicus cannot take over litigation and determine an
________________________
114 Trustees, Children’s Rights Resource Centre v Pioneer Foods (Pty) Ltd 2013 3 BCLR 279 (SCA).
115 De Vos W “Opt-in class action for damages vindicated by constitutional court” 2013 TSAR
757, 766.
116 Mukaddam v Pioneer Foods (Pty) Ltd 2013 10 BCLR 1135 (CC). 2013 5 SA 89 (CC) paras 35, 37.
117 De Vos W “Opt-in class action for damages vindicated by constitutional court” 2013 TSAR
757, 767.
118 Ferreira v Levin; Vryenhoek v Powell 1996 1 BCLR 1 (CC), 1996 1 SA 984 para 234; Lawyers for
Human Rights v Minister of Home Affairs 2004 7 BCLR 775 (CC), 2004 4 SA 125 (CC) paras 16,
18, 73; Campus Law Clinic (University of KZN Durban) v Standard Bank of SA Ltd 2006 6 BCLR
669 (CC), 2006 6 SA 103 (CC) para 21; Kiliko v Minister of Home Affairs 2007 4 BCLR 416 (C),
2006 4 SA 114 (C) para 12; Freedom Under the Law v Acting Chairperson: Judicial Service Commis-
sion 2011 3 SA 549 (SCA) paras 19–23.
119 Campus Law Clinic (University of KZN Durban) v Standard Bank of SA Ltd 2006 6 BCLR 669
(CC), 2006 6 SA 103 (CC) para 20.
120 Campus Law Clinic (University of KZN Durban) v Standard Bank of SA Ltd 2006 6 BCLR 669
(CC), 2006 6 SA 103 (CC) para 20.
application forum to lodge an appeal where the dominus litis has lodged an applica-
tion elsewhere.121
(e) An association acting in the interest of its members
In view of conflicting case law on the question whether an association may claim
relief on behalf of its members, the Constitution provides that it is indeed possible
in respect of the rights guaranteed in the bill of rights. The common-law restrictions
do not apply in this regard.122 In respect of associations, the concept “interest” covers
also the purposes for which associations are established, for example environmental
protection or children’s rights, with regard to which individual members in their
personal capacities may not have a “direct” interest. In SA Veterinary Council v Veteri-
nary Defence Association, the Supreme Court of Appeal held that an association has
locus standi even if the outcome of a disciplinary hearing affects only one of its
members; and that, because there was a danger that future tribunals could commit
the same irregularity, the manner in which the individual member was found guilty
and the manner in which the inquiry was held were matters of importance to all
members of the association.123 However, in Western Cape Residents’ Association v Parow
High School, a high court held that in order to ameliorate the situation that each of
the members would otherwise have to be joined as co-applicants, the provision
empowers an association to go to court only where all of its members are prejudiced
by the same act or actions; the provision does not entitle an association to set itself
up as a litigator on behalf of individual members whose individual rights are not
infringed or threatened.124
3.4 “A competent court” and “appropriate relief”

The right to approach a court concerning a threat or violation of a right in the Bill
of Rights in section 38 provides detail on only one aspect of the guarantee, namely
on the persons who may approach a court. In respect of other aspects such as “a
competent court”, court procedure and “appropriate relief”, the Constitution does
not distinguish between Bill of Rights litigation and other constitutional litigation.
These matters are discussed in chapter 10 paragraphs 5.2 to 5.5. Because most cases
considered by the Constitutional Court deal with Bill of Rights issues, these chapters
of 10 could be included in a study of the Bill of Rights.
________________________
121 University of Witwatersrand Law Clinic v Minister of Home Affairs 2007 8 BCLR 900 (CC) paras 5,
6.
122 Highveldridge Residents Concerned Party v Highveldridge TLC 2003 1 BCLR 72 (T).
123 2003 7 BCLR 697 (SCA), 2003 4 SA 546 (SCA).
124 Western Cape Residents’ Association v Parow High School 2006 3 SA 542 (C) 544.
Table of South African cases
Page
A
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council
2006 11 BCLR 1255 (CC), 2007 1 SA 343 (CC)......................................................163, 341, 349
AB v Minister of Social Welfare 2017 3 BCLR 267 (CC), 2017 3 SA 570 (CC) ................361, 362
Abahlali Basemjondolo Movement SA v Premier of KwaZulu-Natal
2010 2 BCLR 99 (CC) ...............................................................................................................442
ABBM Printing and Publishing Pty Ltd v Transnet Ltd
1997 10 BCLR 1429 (W), 1998 2 SA 109 (W) .........................................................................474
Abdi v Minister of Home Affairs 2011 3 SA 37 (SCA)................................................................284
Abrams v Allie 2004 9 BCLR 914 (SCA), 2004 4 SA 534 (SCA) ................................................432
Absa Bank Ltd v Xonti 2006 5 SA 280 (C) ..................................................................................441
ACDP v The Electoral Commission 2006 5 BCLR 579 (CC), 2006 JOL 16810 (CC) ......104, 242
Acting Superintendent-General of Education of KwaZulu-Natal v Ngubo
1996 3 BCLR 369 (N) ...............................................................................................................398
AD v DW 2008 4 BCLR 359 (CC) ........................................................................................179, 447
Advance Mining Hydraulics (Pty) Ltd v Botes NO
2000 2 BCLR 119 (T), 2000 1 SA 815 (T) ...............................................................................351
Affordable Medicines Trust v Minister of Health of RSA
2005 6 BCLR 529, 2006 3 SA 247 (CC) ............................ 10, 298, 313, 348, 409, 410, 411, 471
African Christian Democratic Party v The Electoral Commission
2006 5 BCLR 579 (CC), 2006 3 SA 305 (CC)..................................................................181, 407
African National Congress v Chief Electoral Officer of the Independent
Electoral Commission 2009 10 BCLR 971 (CC), 2010 5 SA 487 (CC)..................................266
African National Congress v Minister of Local Government and Housing,
KwaZulu-Natal 1998 4 BCLR 399 (CC), 1998 2 SA 1 (CC)....................................232, 240, 241
Afriforum v Chairman of the Council of the University of the Free State
(A70/2016) [2016] ZAFSHC 130 ..............................................................................................84
Afriforum v Malema 2010 5 SA 235 (GNP).................................................................................392
Afriforum v University of the Free State 2018 4 BCLR 387 (CC),
2018 2 SA 185 (CC) ....................................................................................................84, 455, 456
Afrox v Health Care Bpk v Strydom 2002 6 SA 21 (SCA) ..................................................303, 304
Agri SA V Minister for Minerals and Energy 2013 7 BCLR 727 (CC),
2013 2 SA 1 (CC) ..............................................................................................421, 422, 429, 430
AK Entertainment CC v Minister of Safety and Security
1994 4 BCLR 31 (E), 1995 1 SA 783 (E) .................................................................................273
Albutt v Centre for the Study of Violence and Reconciliation
2010 5 BCLR 391 (CC), 2010 3 SA 293 (CC)..........................................................................149
Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC), 2004 5 SA 460 (CC).......433
Aluchem (Pty) Ltd v Minister of Mineral and Energy Affairs 1985 3 SA 616 (T)....................164
AMCU v Chamber of Mines 2017 3 SA 242 (CC), 2017 6 BCLR 700 (CC)......................289, 417
Amod v Multilateral Motor Vehicle Accident Fund 1997 12 BCLR 1716 (D)..................267, 292
Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2006 4 BCLR 492 (T)....................311, 426
Application of the President of the RSA, Ex parte In re:
2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC)..........................................................................182
Aquafund (Pty) Ltd v Premier of the Western Cape 1997 7 BCLR 907 (C) ............................474
Armbruster v Minister of Finance 2007 12 BCLR 1283 (CC)....................................................482
Arun Property Development (Pty) Ltd v City of Cape Town
2015 3 BCLR 243 (CC) ...............................................................................................................75
497
Page
Attorney General, Namibia: In re Corporal Punishment by Organs of State,
Ex parte 1991 3 SA 76 (NM) ......................................................................................................77
Attorney-General, Namibia: In re: The Constitutional Relationship between the
Attorney-General and the Prosecutor-General, Ex parte 1995 8 BCLR 1070 (NmS)............62
Audio Vehicle Systems v Whitfield 2007 1 SA 434 (C)...............................................................383
August v Electoral Commission
1999 4 BCLR 363 (CC), 1999 3 SA 1 (CC)..................................................92, 94, 297, 311, 406
Awumey v Fort Cox Agricultural College 2003 8 BCLR 861 (Ck).............................................467
Azanian Peoples Organisation (AZAPO) v President of the RSA
1996 8 BCLR 1015 (CC), 1996 4 SA 672 (CC)..................................................93, 102, 327, 484
B
B v M 2006 9 BCLR 1034 (W) ......................................................................................................426
Bakgatla-Ba-Kgafela Communal Property Association v
Bakgatla-Ba-Kgafela Tribal Authority
2010 10 BCLR 1139 (CC), 2015 6 SA 32 (CC)........................................................................266
Baloro v University of Bophuthatswana 1995 8 BCLR 1018 (B), 1995 4 SA 197 (B).................77
Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v
Head of the Western Tembuland Regional Authority
1998 3 BCLR 314 (Tk), 1998 1 SA 262 (Tk) .............................................46, 172, 175, 231, 479
Bannatyne v Bannatyne 2003 2 BCLR 111 (CC),
2003 2 SA 363 (CC) ..........................................................................................194, 199, 344, 451
Barkhuizen v Napier
2007 7 BCLR 691 (CC), 2007 5 SA 323 (CC)...................................................286, 290, 311,483
Barnett v Minister of Land Affairs 2007 11 BCLR 1214 (SCA) .................................................441
Baromoto v Minister of Home Affairs 1998 5 BCLR 562 (W) 577 ............................................291
Baron v Claytile (Pty) Ltd 2017 10 BCLR 1225, 2017 5 SA 329 (CC) .......................305, 423, 437
Basson v Chilwan 1993 3 SA 742 (A) ...........................................................................................413
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
2004 7 BCLR 687 (CC), 2004 4 SA 490 (CC).......................... 262, 291, 300, 415, 469, 471,472
Beinash v Young 1999 2 BCLR 125 (CC), 1999 2 SA 116 (CC).........................................479, 484
Bel Porto School Governing Body v Premier of the Western Cape
2002 9 BCLR 891 (CC), 2002 3 SA 265 (CC)..................................262, 319, 333, 470, 472, 474
Bellocchio Trust Trustees v Engelbrecht NO 2002 3 SA 519 (C) .............................................483
Bernert v ABSA Bank Ltd 2011 4 BCLR 329 (CC) .....................................................................186
Bernstein v Bester 1996 4 BCLR 449 (CC),
1996 2 SA 751 (CC) .............. 30, 62, 261, 262, 281, 297, 361,367, 369, 351, 379, 381, 473, 479
Besserglik v Minister of Trade, Industry and Tourism
1996 6 BCLR 745 (CC), 1996 4 SA 331 (CC)..........................................................343, 480, 484
Beukes v Krugersdorp Transitional Local Council 1996 3 SA 467 (W)....................................244
Beyers v Elf regters van die Grondwetlike Hof 2002 10 BCLR 1001 (CC) ...............................486
Bhe v Magistrate Kayelisha; Sibi v Sithole; SA Human Rights
Commission v President of the RSA
2005 1 BCLR 1 (CC), 2005 1 SA 580 (CC)......................................193, 231, 272, 340, 342, 347
Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile
2010 5 BCLR 422 (CC) .....................................................................................................186, 194
Biowatch Trust v Registrar Genetic Resources
2009 10 BCLR 1014 (CC), 2009 6 SA 232 (CC)..............................................................183, 344
Biro v Minister of the Interior 1957 1 SA 234 (T) ........................................................................43
Boesak v Minister of Home Affairs 1987 3 SA 665 (C).......................................................119, 153
Bogaards v S 2012 12 BCLR 1261 (CC).....................................................................1269, 301, 349
Booysen v Minister of Home Affairs 2001 7 BCLR 645 (CC),
2001 4 SA 485 (CC) ..................................................................................................................349
Bothma v Els 2010 1 BCLR 1 (CC), 2010 (2) SA 622 (CC) .......................................................486
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment
and Land Affairs 2004 5 SA 124 (W) .......................................................................................419
Table of South African cases 499
Page
Bredenkamp v Standard Bank of SA Ltd 2010 9 BCLR 892 (SCA) ..................................290, 303
Brink v Kitshoff 1996 6 BCLR 752 (CC), 1996 4 SA 197 (CC) ..................................292, 323, 340
Brisley v Drotsky 2002 12 BCLR 1229 (SCA), 2002 (4) SA 1 (SCA)..........................303, 304, 441
Britannia Beach Estate v Saldanha Bay Municipality
2013 11 BCLR 1217 (CC) .........................................................................................................419
Bruce v Fleecytex Johannesburg CC 1998 4 BCLR 415 (CC), 1998 2 SA 1143 (CC) ......186, 187
Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 5 BCLR 465 (CC),
2000 2 SA 837 (CC) ..................................................................................................................186
Brümmer v Minister for Social Development 2009 11 BCLR 1075 (CC),
2009 (6) SA 323 (CC) ...............................................................................................459, 463, 483
Buffalo City Municipality v Gauss 2005 4 SA 489 (SCA) ............................................................473
Bushbuck Ridge Border Committee v Government of the Northern Province
1999 2 BCLR 193 (T), 1998 JOL 4100 (T)............................................................................99, 201
C
C v Department of Health and Social Development Gauteng
2012 4 BCLR 329 (CC), 2012 2 SA 208 (CC)..........................................................................451
Caluza v Independent Electoral Commission 2004 1 SA 631 (Tk) ...........................................242
Campus Law Clinic (University of KZN Durban) v Standard Bank of SA Ltd
2006 6 BCLR 669 (CC), 2006 6 SA 103 (CC)..........................................................................494
Canon KwaZulu-Natal (Pty) Ltd t/a Canon Office Automation v Booth
2004 1 BCLR 39 (N), 2005 3 SA 205 (N) ................................................................................414
Cape Metropolitan Council v Metro Inspection Services
2001 10 BCLR 1026 (SCA), 2001 3 SA 1013 (SCA)........................................................462, 466
Cape of Good Hope v Robinson 2005 20 BCLR 103 (CC), 2005 4 SA 1 (CC).........................262
Carlson Investment Share Block (Pty) Ltd v Commissioner for the SA Revenue Services
2002 5 BCLR 521 (W)...............................................................................................................473
Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC),
2001 4 SA 938 (CC) ............................................................................26, 182, 268, 269, 356, 363
Case v Minister of Safety & Security; Curtis v Minister of Safety & Security
1996 5 BCLR 609 (CC), 1996 3 SA 617 (CC).................................................190, 262, 281, 321,
377, 378, 390, 391, 397
Cekeshe v Premier for the Province of the Eastern Cape
1997 12 BCLR 1746 (Tk)..........................................................................................................466
Centre for Child Law v Minister of Home Affairs 2005 6 SA 50 (T).........................................447
Centre for Child Law v Minister of Justice and Constitutional Development
2009 11 BCLR 1105 (CC), 2009 6 SA 632 (CC)......................................................446, 449, 452
Certification of the Amended Text of the Constitution of the RSA 1996,
In re: 1997 1 BCLR 1 (CC), 1997 2 SA 97 (CC) .......................................................17, 240, 280
Certification of the Amended Text of the Constitution of the Western Cape 1997,
In re: 1997 12 BCLR 1653 (CC), 1998 1 SA 655 (CC) .....................................................18, 203
Certification of the Constitution of the Province of KwaZulu-Natal,
In re: 1996 11 BCLR 1419 (CC), 1996 4 SA 1098 (CC) .......................................18, 22, 71, 202
Certification of the Constitution of the RSA 1996, In re:
1996 10 BCLR 1253 (CC), 1996 4 SA 744 (CC)................ 17, 20, 22, 24, 29, 30, 59, 61, 62, 63,
64, 74, 80,114, 128, 129, 133, 147,
148, 160, 173, 207, 209, 213, 214, 215, 217,
221, 223, 224, 226, 227, 231 244, 247, 248,
274, 280, 297, 299, 417, 418, 421
Certification of the Constitution of the Western Cape, In re:
1997 9 BCLR 1167 (CC), 1997 4 SA 795 (CC)....................................................18, 22, 202, 203
Chagi v Special Investigating Unit 2009 3 BCLR 227 (CC), 2009 2 SA 1 (CC)........................262
Chairperson of the National Council of Provinces v Malema
2016 5 SA 335 (SCA).................................................................................................................113
Cherry v Minister of Safety and Security 1995 5 BCLR 570 (SE),
1995 3 SA 323 (SE) ...........................................................................................................343, 382
Page
Chirwa v Transnet Ltd 2008n 3 BCLR 251 (CC), 2008 4 SA 367 (CC) ....................................160
Christian Education SA v Minister of Education 2000 10 BCLR 1051 (CC),
2000 (4) SA 757 (CC) .............................................................. 323, 384, 386, 387, 452, 457, 458
Christian Lawyers Association of SA v Minister of Health
1998 11 BCLR 1434 (T), 1998 4 SA 1113 (T) .........................................................271, 355, 362
Christian Lawyers Association v National Minister of Health
2004 10 BCLR 1086 (T), 2005 1 SA 509 (T) ...................................................................362, 447
Chevron v SA (Pty) Ltd 2015 10 BCLR 1158 (CC).............................................................422, 428
City Council of Pretoria v Walker
1998 3 BCLR 257 (CC), 1998 2 SA 363 (CC)..................................................................245, 340
City of Cape Town v AD Outpost (Pty) Ltd 2000 2 BCLR 130 (C) ...................334, 390, 394, 410
City of Cape Town v Helderberg Park Development (Pty) Ltd
2007 6 BCLR 628 (SCA), 2007 1 SA 1 (SCA)..........................................................................432
City of Cape Town v Persons unlawfully occupying erf 1800, Capricorn:
Vrygrond Dev 2003 8 BCLR 878 (C) .......................................................................................494
City of Cape Town v Robertson 2005 3 BCLR 199 (CC), 2005 2 SA 323 (CC) ........236, 243, 244
City of Cape Town v Rudolph 2003 11 BCLR 1236 (C), 2004 5 SA 39 (C) ......................194, 430
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties Municipality
2012 2 BCLR 150 (CC), 2012 2 SA 104 (CC)..........................................................437, 439, 441
City of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others 2010 9 BCLR 859 (CC), 2010 6 SA 182 (KH), ....................................238
City of Johannesburg v Rand Properties (Pty) Ltd
2007 6 BCLR 643 (SCA) .................................................................................4136, 437, 441, 473
City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd
2015 11 BCLR 1265 (CC), 205 6 SA 440 (CC))..............................................264, 425, 426, 428
Claase v Information Officer, South African Airways (Pty) Ltd 2007 5 SA 469 (SCA) ............462
Claassen v Minister of Justice and Constitutional Development 2010 (6) SA (WCC).............372
Clutchco (Pty) Ltd v Davis 2005 3 SA 486 (SCA) .......................................................................462
Coetzee v Comitis 2001 4 BCLR 323 (C) ............................................................284, 285, 319, 413
Coetzee v Government of the RSA; Matiso v Commanding Officer,
Port Elizabeth Prison
1995 10 BCLR 1382 (CC), 1995 4 SA 631 (CC)..............................183, 273, 316, 348, 366, 370
Colonial Treasurer v Rand Water Board 1907 TS 479 482 ..........................................................76
Cool Ideas 1186 CC v Hubbard 2014 8 BCLR 869 (CC), 2014 4 SA 474 (CC) ........422, 426, 428
Commissioner of the South African Police Service v Maimela 2004 1 BCLR 47 (T) ..............475
Constitutionality of the Mpumalanga Petitions Bill, In re: 2000
2001 11 BCLR 1126 (CC), 2002 1 SA 447 (CC)............... 62, 111, 126, 179, 182, 184, 216, 219
Cowburn v Nasopie (Edms) Bpk 1980 2 SA 547 (NC) 554..........................................................51
Crowther v Plaaslike Oorgangsraad vir Bethlehem 1997 8 BCLR 1010 (O) ............................246
Cuppan v Cape Display Supply Chain Services 1995 5 BCLR 598 (D) .....................................473
Curators, Emma Smith Educational Fund v University of KwaZulu-Natal
2010 6 SA 519 (SCA).................................................................................................................340
D
D v K 1997 2 BCLR 209 (N) 218-219 ...........................................................................................377
Daniel v The President of the RSA 2013 11 BCLR 1241 (CC) ..................................................184
Daniels v Campbell 2004 7 BCLR 735 (CC), 2004 5 SA 331 (CC) ....................................262, 341
Daniels v Scribante 2017 8 BCLR 949 (CC), 2017 4 SA 341 (CC) ....................................305, 437
Da Silva v Road Accident Fund 2014 8 BCLR 917 (CC), 2014 5 SA 573 (CC).........................341
Davis v Clutcho (Pty) Ltd 2004 1 SA 75 (C)........................................................................460, 462
Dawood, Shalabi, Thomas v Minister of Home Affairs2000 8 BCLR 837 (CC),
2000 3 SA 936 (CC) ........................................................ 162, 163, 313, 319, 347, 348, 349, 350,
370, 400, 401334, 335, 336, 378, 379
DE v RH 2015 9 BCLR 1003 (CC), 2015 5 SA 83 (CC)............................................................. 354
De Beer NO v North Central Local Council and South Central Local Council
2001 11 BCLR 1109 (CC), 2002 1 SA 429 (CC)......................................................................480
Page
De Beer v Raad vir Gesondheid 2004 3 BCLR 284 (T),.....................................................244, 480
De Klerk v Du Plessis 1994 6 BCLR 124 (T), 1995 2 SA 40 (T).................................................393
De Kock v Van Rooyen 2006 6 BCLR 714 (SCA) .......................................................................192
De Lacy v South African Post Office 2011 9 BCLR 905 (CC)............................................186, 479
De Lange v Presiding Bishop of the Methodist Church
2016 1 BCLR 1 (CC), 2016 2 SA 1 (CC)..................................................................................285
De Lange v Smuts NO 1998 7 BCLR 779 (CC),
1998 3 SA 785 (CC) ......................... 9, 59, 62, 171, 172, 174, 360, 361, 364, 366, 367, 369, 479
De Lille v Speaker of the National Assembly
1998 7 BCLR 916 (C), 1998 3 SA 430 (C).......................................................................112, 296
De Reuck v Director of Public Prosectutions (WLD)
2003 12 BCLR 1333 (CC), 2004 1 SA 406 (CC).............................................267, 322, 335, 384,
392, 394, 466
De Villiers v Munisipaliteit, Beaufort-Wes 1998 9 BCLR 1060 (C)............................................102
De Vos v Minister of Justice and Constitutional Development
2015 9 BCLR 1026 (CC) ...........................................................................................................271
Democratic Alliance v ANC 2015 3 BCLR 298 (CC), 2015 2 SA 232 (CC) ......................262, 395
Democratic Alliance v ANC 2003 1 BCLR 25 (C) ......................................................................246
Democratic Alliance v Masondo NO 2003 2 BCLR 128 (CC) ...................................................246
Democratic Alliance v Speaker of the National Assembly 2016 5 BCLR 577 (CC),
2016 3 SA 487 (CC) ..................................................................................................166, 326, 395
Democratic Party v Brakpan Transitional Local Council 1999 6 BCLR 657 (W),
1999 4 SA 339 (W) ....................................................................................................................246
Democratic Party v Miller NO 1997 2 BCLR 223 (D), 1997 1 SA 758 (D) .........................98, 241
Democratic Party v Minister of Home Affairs
1999 6 BCLR 607 (CC), 1999 3 SA 254 (CC)....................................................................94, 406
Den Braven SA (Pty) Ltd v Pillay 2008 6 SA 229 (D&CLD) ......................................................295
Dendy v University of the Witwatersrand 2007 8 BCLR 910 (SCA) ..........................................349
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
2007 10 BCLR 1027 (CC), 2007 6 SA 199 (CC)..............................................................335, 433
Dezius v Dezius 2006 6 SA 395 (T) ..............................................................................................360
Dickinson Holdings Group (Pty) Ltd v Du Plessis 2007 6 BCLR 671 (D) 682) ...............284, 413
Dikoko v Mokhatla 2007 1 BCLR 1 (CC), 2006 6 SA 235 (CC).........................................247, 354
Director of Public Prosecutions v P 2006 3 SA 515 (SCA).........................................................452
Director of Public Prosecutions v Robinson
2005 2 BCLR 103 (CC), 2005 4 SA 1 (CC)..............................................................................186
Director of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development 2009 7 BCLR 637 (CC), 2009 4 SA 222 (CC).................188, 449
Directory Advertising Cost Cutters CC v Minister for Posts,
Telecommunications & Broadcasting 1996 3 SA 800 (T)......................................412, 439, 443
Dladla v City of Johannesburg 2018 2 BCLR 119 (CC)..............................................................311
Doctors for Life International v Speaker of the National Assembly 2006 12 BCLR 1399 (CC) ,
2006 6 SA 416 (CC)).............................................. 6, 89, 111, 112, 117, 133, 180, 181, 172, 216
Dormehl v Minister of Justice 2000 5 BCLR 471 (CC), 2000 2 SA 987 (CC) ...................185, 326
Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO
2000 4 SA 973 (C) .....................................................................................................................397
Du Plessis v De Klerk
1996 5 BCLR 658 (CC), 1996 3 SA 850 (CC)............................. 26, 28, 292, 293, 302, 306, 393
Du Plessis v Road Accident Fund
2003 11 BCLR 1220 (SCA), 2004 1 SA 359 (SCA)..........................................................300, 342
Du Preez v Minister of Justice and Constitutional Development
2006 9 BCLR 1094 (SE)....................................................................................................338, 343
Du Toit v Minister for Welfare and Population Development
2002 10 BCLR 1006 (CC), 2003 2 SA 198 (CC)..............................................................447, 452
Du Toit v Minister of Safety and Security
2009 12 BCLR 1233 (CC), 2009 6 SA 128 (CC)......................................................................490
Page
Du Toit v Minister of Transport 2005 11 BCLR 1053 (CC),
2006 1 SA 297 (CC) ..........................................................................................258, 265, 442, 432
Duncan v Minister of Environmental Affairs and Tourism 2010 6 SA 374 (SCA) ...........342, 467
E
E N v Government of the RSA 2007 1 BCLR 84 (D),
2006 6 SA 543 (D).............................................................................................................194, 488
East London Transitional Local Council v Tax Payers Action Organisation
1998 10 BCLR 1221 (E)............................................................................................................244
East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local Council
1998 1 BCLR 1 (CC), 1998 2 SA 61 (CC)........................................................................333, 338
Eastern Metropolitan Substructure v Democratic Party
1997 8 BCLR 1039 (W) 1045BC.................................................................................................30
Economic Freedom Fighters v Speaker of the National Assembly
2018 3 BCLR 259 (CC), 2018 2 SA 571 (CC) 6.68 (E)...........................................113, 144, 145
Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v
Speaker of the National Assembly
2016 5 BCLR 618 (CC), 2016 3 SA 580 (CC) .......................................................63, 64, 70, 166
Ehrlich v Minister of Correctional Services 1997 4 SA 441 (C).................................................488
Eke v Parsons 2015 11 BCLR 1319 (CC), 2016 3 SA 37 (CC)....................................................484
Elliot v Commissioner of Police 1997 5 BCLR 670 (ZS), 1998 1 SA 21 (ZS)............................374
Engelbrecht v Road Accident Fund 2007 5 BCLR 457 (CC), 2007 6 SA 96 (CC) ...........478, 483
Esack NO v Commission on Gender Equality
2000 7 BCLR 737 (W), 2001 1 SA 1299 (W) .............................................................................54
Estate Agency Affairs Board v Auction Alliance (Pty) Ltd
2014 4 BCLR 373 (CC), 2014 3 SA 106 (CC)..........................................................................383
eThekwini Municipality v Haffejee 2010 6 BCLR 578 (KZD)....................................................431
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
2012 3 BCLR 219 (CC) ...............................................................................................................11
Executive Council of the Western Cape v Minister for Provincial Affairs and
Constitutional Development of the RSA; Executive Council of
KwaZulu-Natal v President of the RSA
1999 12 BCLR 1360 (CC), 2000 1 SA 661 (CC)......................................................183, 238, 244
Executive Council, Western Cape Legislature v President of the
Republic of South Africa
1995 10 BCLR 1289 (CC), 1995 4 SA 877 (CC)...........................................22, 25, 62, 107, 131,
191, 210, 204, 240
F
Fakie NO v CCII Systems (Pty) Ltd 2006 4 SA 326 (SCA) .................................................360, 369
Farjas (Pty) Ltd v Regional Land Claims Commissioner, KwaZulu-Natal
1998 5 BCLR 579 (LCC)...........................................................................................................446
Farr v Mutual and Federal Insurance Co Ltd 2000 3 SA 684 (C)..............................................342
Federal Mogul Aftermarket Southern Africa (Pty) Ltd v Competition
Commission 2005 6 BCLR 613 (CAC) 632 .............................................................................461
Federation of Governing School Bodies for SA Schools v MEC for Education, Gauteng
2016 8 BCLR 1050 (CC), 2016 4 SA 546 (CC)................................................................212, 337
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council 1997 5 BCLR 657 (W) .........................................................................245
Fedsure Life Assurance Ltd v Greater Johannesburg
Transitional Metropolitan Council
1998 12 BCLR 1458 (CC), 1999 1 SA 374 (CC)... 9, 27, 162, 242, 243, 245, 239, 466, 470, 471
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council 1998 6 BCLR 671 (SCA), 1998 2 SA 1115 (SCA) ......................236, 244
Ferreira v Levin NO; Vryenhoek v Powell NO
1996 1 BCLR 1 (CC), 1996 1 SA 984 (CC).............. 26, 133, 151, 190, 192, 257, 272, 281, 282,
287, 349, 360, 492, 493, 494
Page
Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain
1997 10 BCLR 1443 (SE), 2001 2 SA 853 (SE) .......................................................................414
First National Bank of SA v Land Bank; Sheard v Land Bank of SA
2000 8 BCLR 876 (CC), 2000 3 SA 626 (CC)..................................................................475, 482
First National Bank v CIR; First National Bank v Minister of Finance
2002 7 BCLR 702 (CC), 2002 4 SA 768 (CC).........................................274, 316, 317, 320, 422,
423, 424, 427, 435
Fish Hoek Primary School v GW 2010 4 BCLR 331 (SCA) ........................................................456
FNB of SA /t/a Wesbank v Commissioner for SARS
2001 7 BCLR 715 (C), 2001 (3) SA 310 (C) ...........................................................................402
Forum of Black Journalist v Katopodis 2009 5 BCLR 510 (SAHRC) ............................... 340, 403
Food and Allied Workers Union v Ngcobo 2013 12 BCLR 1343 (CC), 2014 1 SA 32 (CC) ...417
Fose v Minister of Safety & Security
1997 7 BCLR 851 (CC), 1997 3 SA 786 (CC)..........................................................167, 192, 193
Fourie v Minister of Home Affairs 2005 3 BCLR 241 (SCA) .....................................................268
Frans v Munisipaliteit van Groot Brakrivier
1997 3 BCLR 346 (C), 1998 2 SA 770 (C).......................................................................242, 466
Fraser v ABSA Bank Ltd 2007 3 BCLR 219 (CC), 2007 3 SA 484 (CC) ............................182, 267
Fraser v The Children’s Court 1997 BCLR 153 (CC), 1997 2 SA 261 (CC) .............................340
Fredericks v MEC for Education and Training, Eastern Cape
2002 2 BCLR 113 (CC), 2002 2 SA 693 (CC)..........................................................................187
Freedom Front v South African Human Rights Commission
2003 11 BCLR 1283 (SAHRC) .................................................................................................391
Freedom of Expression Institute v President of the Ordinary Court Martial NO
1999 3 BCLR 261 (C), 1999 2 SA 471 (C)...............................................................................479
Freedom Under the Law v Acting Chairperson: Judicial Service Commission
2011 3 SA 549 (SCA).................................................................................................................494
Fuel Retailers Association of SA v Director-General Environmental Management
2007 10 BCLR 1059 (CC), 2007 6 SA 4 (CC)..........................................................................419
G
Gaertner v Minister of Finance 2014 1 BCLR 38 (CC), 2014 1 SA 442 (CC)...................379, 383
Gamevest (Pty) Ltd v Regional Land Claims Commissioner 2003 1 SA 373 (SCA).................466
Garden Cities Inc Association v Northpine Islamic Society 1999 2 SA 268 (C) .......................286
Gardener v East London Transitional Local Council 1996 3 SA 99 (E)...................................466
Gardener v Whitaker 1995 2 SA 672 (E), 1994 5 BCLR 19 (E).................................................393
Gardener v Whitaker 1996 6 BCLR 775 (CC), 1996 4 SA 337 (CC) .........................................304
Garvis v SATAWU 2010 6 SA 280 (WCC)....................................................................................399
Gauteng Provincial Legislature v Kilian 2001 3 BCLR 253 (SCA),
2001 2 SA 68 (SCA)...................................................................................................127, 215, 216
Gauteng Provincial Legislature: in re Dispute concerning the Constitutionality
of Certain Provisions of the Gauteng School Education Bill of 1995,
Ex Parte 1996 3 SA 165 (CC), 1996 3 SA 165 (CC)................................................................453
Gbenga-Oluwatoye v v Reckitt Benckiser South Africa (Pty) Ltd
2016 12 BCLR (CC)) ................................................................................................................483
Gcaba v Minister for Safety and Security 2010 1 BCLR 35 (CC),
2010 1 SA 238 (CC) ..........................................................................................................462, 470
Geldenhuys v National Director of Public Prosecutions
2009 5 BCLR 435 (CC), 2009 2 SA 310 (CC)..........................................................................342
Geuking v President of the RSA 2004 9 BCLR 895 (CC),
2003 3 SA 34 (CC) ............................................................................................299, 363, 373, 480
Geyser v Msunduzi Municipality 2003 3 BCLR 235 (N).....................................................244, 421
Giddey NO v JC Barnard and Partners 2007 2 BCLR 125 (CC),
2007 5 SA 521 (CC) .............................................................................................................30280,
Glenister v President of the RSA 2009 2 BCLR 136 (CC), 2009 1 SA 287 (CC) ........63, 180, 299
Glenister v President of the RSA 2011 7 BCLR 651 (CC), 2011 3 SA 347 (CC) ......................187
Gold Circle (Pty) Ltd v Premier, KwaZulu-Natal 2005 4 SA 402 (D) ................................342, 386
Page
Goldberg v Minister of Prisons 1979 1 SA 14 (A).......................................................................488
Goodman Bros (Pty) Ltd v Transnet Ltd
1998 8 BCLR 1024 (W) 1033, 1998 4 SA 989 (W), 1998 4 SA 989 (W ....................54, 284, 474
Gory v Kolver NO 2007 3 BCLR 249 (CC), 2007 4 SA 99 (CC).................................................342
Governing Body of the Juma Musjid Primary School v Essay NO
2011 8 BCLR 761 (CC) .....................................................................................438, 450, 453, 454
Government of the RSA v Government of KwaZulu 1983 1 SA 164 (A).....................................71
Government of the RSA v Grootboom
2000 11 BCLR 1169 (CC), 2001 1 SA 46 (CC)....... 133, 298, 424, 436, 437, 438, 439, 451, 453
Government of the RSA v Sunday Times Newspaper
1995 2 BCLR 182 (T), 1995 2 SA 221 (T) .......................................................................274, 394
Greenfields Drilling CC v Registrar of the Supreme Court of Appeal
2010 11 BCLR 1113 (CC) .........................................................................................................480
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works
2005 10 BCLR 931 (SCA), 2005 6 SA 313 (SCA)............................................................464, 465
Gumede v President of the RSA 2009 3 BCLR 243 (CC), 2009 3 SA 152 (CC) ...............268, 340
Gundwana v Steko Development CC
2011 8 BCLR 792 (CC), 2011 3 SA 608 (CC)..........................................................284, 438, 482
H
H v Fetal Assessment Centre 2015 2 BCLR 127 (CC), 2015 2 SA 193 (CC) ...............................30
Haffejee v Ethekwini Municipality 2011 12 BCLR 1225 (CC), 2011 6 SA 134 (CC)................431
Hallowes v The Yacht “Sweet Waters” 1995 2 BCLR 172 (D), 1995 2 SA 270 (D) ...........274, 478
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee
2002 7 BCLR 756 (SCA) ...........................................................................................................473
Harding v Independent Democrats 2008 5 BCLR 523 (K), 2002 2 All SA 424 (K) ...................99
Harksen v Lane NO 1997 11 BCLR 1489 (CC),
1998 1 SA 300 (CC) ................................................................. 255, 262, 333, 335, 338, 344, 430
Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) ...........................................................431
Hassam v Jacobs NO 2009 11 BCLR 1148 (CC), 2009 5 SA 572 (CC) ..............337, 340, 341, 432
Hay v B 2003 3 SA 492 (W) 494 ...........................................................................................357, 387
HBR (Hola Bon Renaissance) Foundation v President of the RSA
2011 10 BCLR 1009 (CC) .........................................................................................................445
Head of Department, Department of Education, Free State Province v
Welkom High School / Harmony High School
2013 9 BCLR 989 (CC) .............................................................................340, 354, 382, 450, 455
Head of Department: Mpumalanga Department of Education v Hoërskool
Ermelo 2010 3 BCLR 177 (CC) ...............................................................................................456
Head of the Department of Education v Settlers Agricultural High School
2003 11 BCLR 1212 (CC) .........................................................................................................185
Henbase 3392 v Commissioner, SARS 2002 2 SA 180 (T) .................................................467, 473
Heystek v Heystek 2002 2 SA 754 (T)..................................................................................301, 450
High School Ermelo v Head of Department 2008 1 All SA 139 (T) ...........................................85
Highveldridge Residents Concerned Party v Highveldridge TLC
2003 1 BCLR 72 (T)..................................................................................................................495
Hix Networking Technologies v System Publishers (Pty) Ltd 1997 1 SA 391 (A) ...................394
Hlope v Premier of the Western Cape Province
2012 6 BCLR 567 (CC), 2012 6 SA 1299 (W) 13 ....................................................................178
Hoffmann v South African Airways 2000 11 BCLR 1211 (CC), 2001 1 SA 1 (CC) ..311, 312, 342
Holomisa v Argus Newspapers Ltd
1996 6 BCLR 836 (W) 855, 1996 2 SA 588 (W) ......................................................................390
Holomisa v Argus Newspapers Ltd; Bogoshi v National Media Ltd 1996 3 SA 78 (W) ...........393
Hotel Slots (Pty) Ltd v Minister of Safety and Security 1999 8 BCLR 895 (NC)......................209
Human Rights Commission of SA v SABC 2003 1 BCLR 92 (BCCSA) .....................................391
Page
I
Idasa v ANC 2005 10 BCLR 995 (C), 2005 5 SA 39 (C) .................................................54, 99, 160
Independent Electoral Commission v Langeberg Municipality
2001 9 BCLR 883 (CC), 2001 3 SA 925 (CC)..............................................54, 69, 104, 223, 241
Independent Newpapers Holdings Ltd v Suliman 2005 7 BCLR 641 (SCA) ...........318, 350, 382
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services
2008 8 BCLR 771 (CC), 2008 (5) SA 31 (CC) ........................................................................488
Ingledew v Financial Services Board 2003 8 BCLR 825 (CC), 2003 4 SA 584 (CC) ........460, 462
Institute for Democracy in SA v African National Congress
2005 10 BCLR 995 (C), 2005 5 SA 39 (C)...............................................404, 406, 461, 462, 463
International Trade Administration Commission v SCAW South Africa (Pty) Ltd
2010 5 BCLR 457 (CC) ...............................................................................................................62
Investigating Director, Serious Economic Offences v Gutman NO
2002 4 SA 230 (SCA).................................................................................................................474
Investigating Directorate, Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd
2000 10 BCLR 1079 (CC), 2001 1 SA 545 (CC)..............................262, 263, 274, 317, 380, 381
Islamic Unity Convention v Independent Broadcasting Authority
2002 5 BCLR 433 (CC), 2002 4 SA 294 (CC)..........................................................279, 392, 394
Islamic Unity Convention v Minister of Telecommunications
2008 4 BCLR 384 (CC), 2008 3 SA 383 (CC)..........................................................................467
J
J v Director-General, Department of Home Affairs 2003 5 BCLR 463 (CC),
2003 5 SA 621 (CC) ..........................................................................................................192, 342
J v National Director of Public Prosecutions 2014 7 BCLR 764 (CC)…...................................450
Jaipal v S 2005 5 BCLR 423 (CC), 2005 4 SA 581 (CC) .....................................................479, 488
Janse Van Rensburg NO v Minister of Trade and Industry NO
2000 11 BCLR 1235 (CC) .........................................................................................................473
Japhta v Schoeman; Van Rooyen v Stoltz 2005 1 BCLR 78 (CC),
2005 2 SA 140 (CC) ..................................................................................437, 438, 443, 482, 493
Jeebhai v Minister of Home Affairs 2007 10 BCLR 1146 (T) ....................................................356
Jeeva v Receiver of Revenue, Port Elizabeth 1995 2 SA 433 (SE)..............................................473
Jenkins v Government of the Republic of South Africa 1996 8 BCLR 1059 (Tk)....................473
Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 3 SA 809 (A) ......................189
Johncom Media Investments Ltd v M 2009 8 BCLR 751 (CC), 2009 (4) SA 7 (CC) ...............396
Jooste v Botha 2000 2 BCLR 187 (T), 2000 2 SA 199 (T) ..........................................................450
Jooste v Score Supermarket Trading (Pty) Ltd
1999 2 BCLR 139 (CC), 1999 2 SA 1 (CC)......................................................321, 332, 333, 485
Jordaan v Tshwane Metropolitan Municipality
2017 11 BCLR 1370 (CC), 2017 6 SA 287 (CC)..............................................................263, 425
Jordan v S 2002 11 BCLR 1117 (CC),
2002 6 SA 642 (CC) ......................................................... 257, 258, 323, 333, 336, 337, 363, 390
Joseph v City of Johannesburg 2010 3 BCLR 212 (CC),
2010 (4) SA 55 (CC...........................................................................................................467, 474
JT Publishing (Pty) Ltd v Minister for Safety and Security
1996 12 BCLR 1599 (CC), 1997 3 SA 514 (CC .......................................................................189
Judge President Hlope v Premier of the Western Cape Province
2012 6 BCLR 567 (CC) .............................................................................................................178
Judin v Wedgwood 2003 5 SA 472 (W)........................................................................................354
Justice Alliance of SA v President of the RSA 2011 10 BCLR 1017 (CC),
2011 5 SA 388 (CC) ..................................................................................................................177
Page
K
K v Minister of Safety and Security 2005 9 BCLR 835 (CC),
2005 6 SA 419 (CC) ..........................................................................................................295, 371
Kauesa v Minister of Home Affairs 1995 1 SA 51 (Nm)...............................................................75
Kaunda v President of the RSA 2004 10 BCLR 1009 (CC),
2005 4 SA 235 (CC) ..................................................................................................................408
Kelder v Kempton Park/Tembisa Metropolitan Substructure 2000 2 SA 980 (SCA)..............244
Khala v Minister of Safety and Security 1994 2 BCLR 89 (W), 1994 4 SA 218 (W) .................310
Kham v Electoral Commission 2016 2 BCLR 157 (CC), 2016 2 SA 338 (CC)..................104, 408
Khohliso v S 2015 2 BCLR 164 (CC) ...........................................................................................195
Khosa v Minister of Social Development; Mahlaule v Minister of Social
Development 2004 6 BCLR 569 (CC),
2004 6 SA 505 (CC) ................................................... 38, 181, 195, 341, 436, 439, 440, 442, 444
Khumalo v Holomisa 2002 8 BCLR 771 (CC),
2002 5 SA 401 (CC) .........................................................................294, 295, 302, 305, 306, 347,
348, 351, 353, 354, 390
Kilian v Gauteng Provincial Legislature 1999 2 BCLR 225 (T)...........................................79, 127
Kiliko v Minister of Home Affairs 2007 4 BCLR 416 (C),
2006 4 SA 114 (C) .............................................................................................272, 354, 370, 494
King v Attorneys Fidelity Fund Board of Control
2006 4 BCLR 462 (SCA), 2006 1 SA 474 (SCA)......................................................................111
King William’s Town TLC v Border Taxi Alliance Taxi Association
2002 4 SA 152 (E) .....................................................................................................................474
Kingdom Radio (Pty) Ltd v Chairperson, Independent Broadcasting Authority
2006 8 BCLR 945 (W)...............................................................................................................387
Klein v Dainfern College 2006 3 SA 73 (T) ................................................................................468
Knox D’Arcy Ltd v Shaw 1996 2 SA 651 (W), 1995 12 BCLR 1702 (W) ...........................285, 412
Kotze en Genis (Edms) Bpk v Potgieter
1995 3 BCLR 349 (C) ,1995 3 SA 783 (C)...............................................................................305
Kotze v Kotze 2003 3 SA 628 (T) .........................................................................................386, 412
Koyabe v Minister for Home Affairs 2009 12 BCLR 1192 (CC),
2010 4 SA 327 (CC) ..................................................................................................473, 474, 475
Kruger v President of the RSA 2009 3 BCLR 268 (CC), 2009 1 SA 417 (CC) ..................126, 493
KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995,
In re; In re: Payment of Salaries, Allowances and
other Privileges to the Ingonyama Bill of 1995
1996 7 BCLR 903 (CC), 1996 4 SA 653 (CC)..................................207, 209, 210, 218, 231, 285
Kylie v CCMA 2010 10 BCLR 1029 (LAC) ..................................................................................415
Kwik Kopy (SA) (Pty) Ltd v Van Haarlem 1999 1 SA 472 (W)................................................. 413
Kylie v CCMA 2010 10 BCLR 1029 (LAC) ..................................................................................415
L
Laerskool Middelburg v Departementshoof: Mpumalanga
Departement van Onderwys 2003 4 SA 160 (T) .......................................................85, 446, 455
Lane NO v Dabelstein 2001 4 BCLR 312 (CC), 2001 2 SA 1187 (CC) .....................................186
Langemaat v Minister of Safety and Security
1998 4 BCLR 444 (T), 1998 3 SA 312 (T) ...............................................................................342
Larbi-Odam v Member of the Executive Council for Education (N-W Province)
1997 12 BCLR 1655 (CC), 1998 1 SA 745 (CC) ...........................................................38, 272, 341
Laubscher v Duplan 2017 3 BCLR 249 (CC), 2007 2 SA 264 (CC) …......................................342
Laugh It Off Promotions CC v SAB International (Finance) BV
t/a Sabmark International 2005 2 SA 46 (SCA) .....................................................................265
Laugh It Off Promotions CC v SAB International (Finance) BV
t/a Sabmark International 2005 8 BCLR 743 (CC), 2006 1 SA 144 (CC) ............265, 392, 422
Page
Law Society of South Africa v Minister for Transport
2011 2 BCLR 150 (CC), 2011 1 SA 400 (CC)........................... 10, 334, 364, 371, 410, 422, 425
444, 485, 491
Law Union and Rock Insurance Co Ltd v Carmichael’s Executor..............................................76
Lawyers for Human Rights v Minister of Home Affairs
2004 7 BCLR 775 (CC), 2004 4 SA 125 (CC)..........................................................360, 367, 488
Lawyers for Human Rights v Minister of Home Affairs
2017 10 BCLR 1242 (CC), 2017 5 SA 480 (CC)......................................................370, 488, 493
Lebowa Mineral Trust Beneficiaries Forum v President of the RSA
2002 1 BCLR 23 (T)..................................................................................................421, 422, 430
Lees Import and Export v Zimbabwe Banking Corporation
1995 2 BCLR 172 (D) 180, 1995 2 SA 270 (D) .......................................................................478
Legal Aid Board v R 2009 (2) SA 262 (DCLD)...........................................................................489
Legal Aid Board v S 2010 12 BCLR 1285 (SCA).........................................................................489
Legal Aid SA v Magidiwana 2015 11 BCLR 1346 (CC) ..............................................................179
Le Grange v S 2010 6 BCLR 547 (SCA) ......................................................................................490
Le Roux v Dey 2011 6 BCLR 577 (CC), 2011 3 SA 274 (CC) ............................337, 348, 350, 353
Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC),
2000 1 SA 409 (CC) ..............................................................................................9, 192, 477, 482
Liberal Party v The Electoral Commission
2004 8 BCLR 810 (CC), 2004 JOL 12666 (CC) ..............................................................104, 181
Liesching v S 2017 4 BCLR 454 (CC) … .....................................................................................343
LMT Beneficiaries Forum v President of the RSA 2002 1 BCLR 33 (T)...................................126
Logbro Properties CC v Bedderson NO 2003 2 SA 460 (SCA) .................................................466
Lotus River, Ottery, Grassy Park Residents Association v South Peninsula
Municipality 1999 4 BCLR 440 (C) 452, 1999 2 SA 817 (C)..................................................245
Lourens v President van die Republiek van Suid-Afrika 2013 1 SA 499 (GNP) .........................84
Lourens v Speaker of the National Assembly 2015 1 SA 618 (EqC) ...........................................81
Lourens v Speaker of the National Assembly of Parliament
[2016] 2 All SA 340 (SCA) .........................................................................................................84
Louw v Matjila 1995 11 BCLR 1476 (W) .....................................................................................246
Louw v Transitional Local Council of Greater Germiston 1997 8 BCLR 1062 (W) ..................84
LS v AT 2001 2 BCLR 152 (CC), 2001 1 SA 1171 (CC) .....................................................292, 446
Lufumo Mphaphuli and Associates (Pty) Ltd v Andrews
2009 6 BCLR 527 (CC), 2009 4 SA 529 (CC)..........................................283, 286, 290, 466, 481
Luiting v Minister of Defence 1996 4 BCLR 581 (CC), 1996 2 SA 909 (CC) ...........................483
Lynn NO v Krueger 1995 2 BCLR 167 (N) .................................................................................487
M
M v S 2007 12 BCLR 1312 (CC), 2008 3 SA 232 (CC) ...............................................446, 448, 451
Mabaso v Law Society of the Northern Province
2005 2 BCLR 129 (CC), 2005 2 SA 117 (CC)..........................................................................343
Mabuza v Mbatha 2003 7 BCLR 743 (C), 2003 4 SA 218 (C) ....................................................268
Machaka v Law Society of the Transvaal 1998 4 SA 413 (T)......................................................410
Magajane v Chairperson, North West Gambling Board
2006 10 BCLR 1133 (CC), 2006 5 SA 520 (CC)......................................................379, 381, 382
Magidwana v President of the RSA 2013 11 BCLR 1251 (CC) … .............................................486
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 4 SA 874 (A)......................................414
Mail and Guardian Media Ltd v Chipu 2013 11 BCLR 1256 (CC) … .....................................397
Mail and Guardian Ltd v Judicial Service Commission 2010 6 BCLR 615 (GSJ) .....................396
Malachi v Cape Dance Academy International (Pty) Ltd
2010 11 BCLR 1116 (CC), 2010 (6) SA 1 (CC) ..............................................................367, 370
Malan v City of Cape Town 2014 11 BCLR 1265 (CC), 2014 6 SA 315 (CC) … ......................441
Mandela v Falati 1994 4 BCLR 1 (W), 1995 1 SA 251 (W) ........................................................394
Mangope v Asmal 1997 4 SA 277 (T) ..........................................................................................350
Mankayi v Anglogold Ashanti Ltd 2011 5 BCLR 453 (CC), 2011 3 SA 231 (CC) ....................263
Page
Manong & Associates (Pty) Ltd v City of Cape Town 2009 1 SA 644 (EqC) ............................331
Manong & Associates v Director General: Department of Public Works
2005 10 BCLR 1017 (C) ...............................................................................................................331
Mansingh v General Council of the Bar 2014 1 BCLR 85 (CC),
2014 2 SA 26 (CC) ........................................................................................................................148
Maphango v Angus Lifestyle Properties (Pty) Ltd 2012 5 BCLR 449 (CC)..............................292
Marais v Democratic Alliance 2002 2 BCLR 171 (C) ...........................................................99, 468
Marais v S 2010 12 BCLR 1223 (CC), 2011 1 SA 502 (CC)........................................................176
Masetlha v President of the RSA 2008 1 BCLR 1 (CC) ......................................................149, 160
Mashavha v President of the RSA 2004 12 BCLR 1243 (CC),
2005 2 SA 476 (CC) ..........................................................................................206, 209, 226, 230
Mashongwa v PRASA 2016 2 BCLR 204 (CC) …........................................................................372
Masiya v Director of Public Prosecutions (Pretoria)
2007 8 BCLR 827 (CC), 2007 5 SA 30 (CC)............................................................................187
Matatiele Municipality v President of the RSA 2006 5 BCLR 622 (CC),
2006 5 SA 47 (CC) ..............................................................................................................50, 111
Matatiele Municipality v President of the RSA
2007 1 BCLR 47 (CC), 2007 6 SA 477 (CC).........................................29, 50, 51, 112, 117, 130,
133, 201, 228, 241, 373
Mateis v Ngwathe Plaaslike Munisipaliteit 2003 4 SA 348 (SCA) ..............................................263
Matjabeng Local Municipality v Eskom Holdings; Mkonto v
Compensation Solutions (Pty) Ltd Welkom High School / Harmony High School
2017 11 BCLR 1408 (CC), 2018 1 SA 1 (CC)............................................................................... 360
Matlou v S 2011 1 BCLR 54 (SCA) ..............................................................................................491
Matukane v Laerskool Potgietersrus 1996 3 SA 223 (T) ............................................................453
May v Udwin 1981 1 SA 1 (A) ......................................................................................................169
Mayelane v Ngwenyama 2013 8 BCLR 918 (CC), 2013 4 SA 415 (CC) ....................................341
Mazibuko v City of Johannesburg
2010 3 BCLR 239 (CC), 2010 (4) SA 1 (CC) ..................................................291, 438, 440, 443
Mazibuko v Sisulu 2013 11 BCLR 1297 (CC), 2013 6 SA 249 (CC) ..........................105, 113, 144
Mbana v Mnquma Municipality 2004 1 BCLR 83 (Tk), 2003 JOL 12106 (Tk)........................247
MC Denneboom Service Station CC v Phayane
2014 12 BCLR 1421 (CC), 2015 1 SA 54 (CC)........................................................................441
Mdodana v Premier, Eastern Cape 2014 5 BCLR 533 (CC), 2014 4 SA 99 (CC).....................195
MEC for Development Planning and Local Government in the
Provincial Government of Gauteng v Democratic Party
1998 7 BCLR 855 (CC), 1998 4 SA 1157 (CC)................................................................240, 247
MEC for Education: KwaZulu-Natal v Pillay
2008 2 BCLR 99 (CC), 2008 1 SA 474 (CC)....................................291, 323, 335, 337, 342, 385
MEC for Health and Social Development, Gauteng v DZ
2017 12 BCLR 1528 (CC), 2018 1 SA 335 (CC) 36 ................................................................268
MEC for Health, Gauteng v Lushaba 2016 8 BCLR 1069 (CC), 2017 1 SA 106 (CC)… .........486
MEC for Health, KwaZulu-Natal v Premier of KwaZulu-Natal:
In re Minister of Health v Treatment Action Campaign
2002 10 BCLR 1028 (CC), 2002 5 SA 721 (CC)......................................................................222
MEC for KwaZulu-Natal, Housing v Mzunduzi Municipality 2003 4 BCLR 405 (N) ...............244
MEC for Local Government and Development Planning of the Western Cape v
Paarl Poultry Enterprises CC t/a Rosendal Poultry Farm
2002 2 BCLR 133 (CC), 2002 3 SA 1 (CC)..............................................................................250
MEC for Local Government, Mpumalanga v IMATA 2002 1 SA 76 (SCA) ......................236, 244
MEC for Roads and Public Works, EC v Intertrade Two (Pty) Ltd
2006 5 SA 1 (SCA).............................................................................................................460, 462
MEC, Department of Welfare, Eastern Cape v Kate
2006 4 SA 478 (SCA).........................................................................................192, 194, 443, 464
MEC: Department of Agriculture Conservation and Development v
HTF Developers (Pty) Ltd 2008 4 BCLR 417 (CC) ................................................................420
Page
Merafong Demarcation Forum v President of the RSA
200810 BCLR 969 (CC), 2008 5 SA 171 (CC).....................................10, 25, 117, 130, 131, 201
Metcash Trading Ltd v Commissioner for SARS
2001 1 BCLR 1 (CC), 2001 1 SA 1109 (CC)............................................................................195
Mfolo v Minister of Education, Bophuthatswana 1992 3 SA 181 (B)........................................284
Mhlongo v S; Nkosi v S 2015 8 BCLR 887 (CC) ….....................................................................343
Midi Television (Pty) Ltd v Director of Public Prosecutions (WC)
2007 9 BCLR 958 (SCA), 2007 5 SA 540 (SCA)......................................311, 317, 390, 393, 396
Minister for Environmental Affairs v Aquarius Platinum (SA) (Pty) Ltd
2016 5 BCLR 673 (CC) … ................................................................................................126, 194
Minister for Justice and Constitutional Development v Chonco
2010 2 BCLR 140 (CC), 2010 4 SA 82 (CC)....................................136, 139, 147, 148, 150, 151
Minister for Welfare & Population Development v Fitzpatrick
2000 7 BCLR 713 (CC), 2000 3 SA 422 (CC)....................................................38, 318, 342, 446
Minister of Defense and Military Veterans v Motau
2014 8 BCLR 930 (CC), 2014 5 SA 69 (CC) ….......................................................................465
Minister of Defence and Military Veterans v Thomas
2015 10 BCLR 1172 (CC), 2016 1 SA 103 (CC)......................................................................264
Minister of Defence v Potsane 2001 11 BCLR 1137 (CC)..........................................333, 335, 343
Minister of Defence v SANDU; Minister of Defence v SANDU
2007 9 BCLR 971 (SCA) ...........................................................................................................414
Minister of Education v Syfrets Trust Ltd 2006 10 BCLR 1214 (C),
2006 4 SA 205 (C) .............................................................................................340, 341, 421, 425
Minister of Education: KwaZulu-Natal v Pillay 2008 2 BCLR 99 (CC)......................................457
Minister of Finance v Van Heerden 2004 11 BCLR 1125 (CC),
2004 6 SA 121 (CC) ..........................................................................................................339, 343
Minister of Health & Welfare v Woodcarb (Pty) Ltd 1996 3 SA 155 (N) .................................419
Minister of Health v Goliath 2009 2 SA 248 (K).........................................................................372
Minister of Health v New Clicks South Africa (Pty) Ltd
2006 1 BCLR 1 (CC), 2006 2 SA 311 (CC)......................................................468, 469, 472, 484
Minister of Health v New Clicks South Africa (Pty) Ltd;
In re Application for Declaratory Relief 2006 8 BCLR 872 (CC)..........................................192
Minister of Health v Treatment Action Campaign (1)
2002 10 BCLR 1033 (CC), 2002 5 SA 721 (CC)..................... 133, 193, 299, 437, 438, 444, 451
Minister of Home Affairs v Eisenberg
2003 8 BCLR 838 (CC), 2003 5 SA 281 (CC)..........................................................................493
Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project and
Eighteen Others v Minister of Home Affairs
2006 3 BCLR 355 (CC), 2006 1 SA 524 (CC)..........................................................................342
Minister of Home Affairs v National Institute for Crime Prevention
and the Re-integration of Offenders (NICRO)
2004 5 BCLR 445 (CC), 2005 3 SA 280 (CC)............................................................... 6, 93, 258
Minister of Home Affairs v Tsebe 2012 10 BCLR 1017 (CC) ............................................353, 356
Minister of Home Affairs v Watchenuka 2004 2 BCLR 120 (SCA),
2004 4 SA 326 (SCA).................................................................. 38, 348, 350, 407, 410, 453, 454
Minister of Justice and Correctional Services v
Estate Late Stransham-Ford 2017 3 BCLR 364 (SCA), 2017 3 SA 152 (SCA) ......................357
Minister of Justice v Hofmeyr 2009 2 SA 373 (ECD)..................................................................488
Minister of Justice v Masingili 2014 1 BCLR 101 (CC)…...........................................................369
Minister of Justice v Ntuli 1997 6 BCLR 677 (CC), 1997 3 SA 772 (CC)..................................191
Minister of Justice and Constitutional Development v Prince 2018 10 BCLR 1220 (CC)191, 383
Minister of Land Affairs v Slamdien 1999 4 BCLR 413 (LCC)....................................................27
Minister of Local Government, Environmental Affairs and Development Planning,
Western Cape v The Habitat Council, City of Cape Town
2014 5 BCLR 591 (CC), 2014 4 SA 437 (CC)..........................................................................192
Minister of Police v Kunjana 2016 9 BCLR 1187 (CC), 2016 2 SACR 473 (CC)…..........375, 382
Page
Minister of Police v Premier of the Western Cape
2013 12 BCLR 1405 (CC), 2014 1 SA 1 (CC)..................................................................183, 219
Minister of Police v Rabie 1986 1 SA 117 (A) .............................................................................371
Minister of Public Works v Kyalami Ridge Environmental Association
2001 7 BCLR 652 (CC), 2001 3 SA 1151 (CC)................................................................467, 473
Minister of Safety and Security v Van der Merwe 2011 7 BCLR 651 (CC) .......................313, 383
Minister of Safety and Security v Xaba 2003 2 SA 703 (D) ........................................................362
Minister of Safety and Security: In re S v Walters, Ex parte
2002 7 BCLR 663 (CC), 2002 4 SA 613 (CC)..................................191, 192, 264, 352, 353, 356
Minister of the Interior v Harris 1952 4 SA 769 (A)...................................................................170
Mistry v Interim Medical and Dental Council of SA
1998 7 BCLR 880 (CC), 1998 4 SA 1127 (CC .........................................................379, 381, 382
Mittal Steel SA Ltd t/a Vereeniging Steel v Pipechem CC 2008 1 SA 640 (C) … ...........274, 478
Mittalsteel SA Ltd (previously known as ISCOR Ltd) v Hlatshwayo
2007 4 BCLR 386 (SCA), 2007 1 SA 66 (SCA)........................................................................461
Mkangeli v Joubert 2001 4 BCLR 316 (CC), 2001 2 SA 1191 (CC) ..........................................194
Mketsu v ANC 2003 1 SA 1 (SCA) ...............................................................................................241
Mkhatshwa v Mkhatshwa 2002 3 SA 441 (T)...............................................................................467
Mkhize v Commission for Conciliation, Mediation and Arbitration
2001 1 SA 338 (LC).....................................................................................................................54
Mkontwana v Nelson Mandela Metropolitan Municipality
2005 2 BCLR 150 (CC), 2005 1 SA 530 (CC)..................................................266, 424, 425, 428
Modder East Sqatters v Modderklip Boerdery; President of the RSA v
Modderklip Boerdery 2004 8 BCLR 821 (SCA), 2004 6 SA 40 (SCA) ..........................423, 436
Modderklip Boerdery (Pty) Ltd v Modder East Squatters 2001 4 SA 385 (W).........................436
Mohamed v President of the RSA
2001 7 BCLR 685 (CC), 2001 3 SA 893 (CC)..........................................................284, 353, 356
Mohlomi v Minister of Defence 1996 12 BCLR 1559 (CC), 1997 1 SA 124 (CC)............318, 482
Mohunram v National Director of Public Prosecutions
2007 6 BCLR 575 (CC), 2007 4 SA 222 (CC)..........................................................................428
Moise v Transitional Local Council of Germiston
2001 8 BCLR 765 (CC), 2001 4 SA 491 (CC)....................................................................25, 483
Mokone v Tassos Properties 2017 10 BCLR 1261 (CC), 2017 5 SA 456 (CC)…......................268
Molaudzi v S 2014 7 BCLR 785 (CC)….......................................................................................489
Moletsane v Premier of the Free State
1995 9 BCLR 1285 (O) 1288, 1996 2 SA 95 (O).....................................................................474
Montshioa v Motshegare 2001 8 BCLR 833 (B) .........................................................................220
Moseneke v Master of the High Court 2001 2 BCLR 103 (CC), 2001 2 SA 18 (CC) .......340, 351
Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2002 1 SA 82 (SCA)...........................191
Motala v University of Natal 1995 3 BCLR 374 (D)............................................................106, 339
Motswagae v Rustenburg Local Municipality
2013 3 BCLR 271 (CC), 2013 2 SA 613 (CC)..........................................................................441
Moutse Demarcation Forum v President of the RSA 2011 11 BCLR 1158 (CC) .............117, 130
Mpakathi v Kghotso Development CC 2003 3 SA 429 (W)........................................................242
Mpangele v Botha 1982 3 SA 633 (C) and 1982 3 SA 638 (C) ....................................................50
Mpehle v Government of the RSA 1996 7 BCLR 921 (Ck) 930.................................................220
Mphahlele v First National Bank of SA Ltd
1999 3 BCLR 253 (CC), 1999 (2) SA 667 (CC) ..............................................................480, 485
Mthembi-Mahanyele v Mail & Guardian 2004 11 BCLR 1182 (SCA) .......................................350
Mthembu v Letsela 2000 3 SA 867 (SCA) ...................................................................................231
Mthembu v State 2010 7 BCLR 636 (CC), 2010 1 SACR 619 (CC)...........................................372
Mthethwa v De Bruin NO 1998 3 BCLR 336 (N) ...................................................................83, 85
Mthetwa v Diedericks 1996 7 BCLR 1012 (N) ............................................................................483
Mukaddam v Pioneer Foods 2013 2 SA 254 (SCA) … ...............................................................410
Mukaddam v Pioneer Foods (Pty) Ltd 2013 10 BCLR 1135 (CC). 2013 5 SA 89 (CC)...........494
Municipality of the City of Port Elizabeth v Prut NO 1997 6 BCLR 828 (SE)..........................244
Page
Munisipale Raad van Bainsvlei v Premier van die Provinsie Oranje-Vrystaat
1995 5 BCLR 543 (O), 1995 1 SA 772 (O)..............................................................................240
Murray v Minister of Defence 2008 11 BCLR 1175 (SCA), 2009 (3) SA 130 (SCA)................416
Mutasa v Makombe 1997 6 BCLR 841 (ZS) ................................................................................110
Mvumvu v Minister of Transport 2011 5 BCLR 488 (CC), 2011 SA 2 473 (CC) ..............335, 344
My Vote Counts NPC v Minister of Justice and Correctional Services 2018 8 BCLR 83 (CC),
2018 5 SA 380 (CC) ....................................................... 92, 98, 99, 102, 459, 460, 461, 462, 463
My Vote Counts NPC v Speaker of the National Assembly
2015 12 BCLR 1407 (CC) .........................................................................................................184
Myburgh v Voorsitter van die Schoemanpark Ontspanningsklub
Dissiplinêre Verhoor 1995 9 BCLR 1145 (O).........................................................................473
N
N v Government of the RSA (1) 2006 6 SA 543 (D) ..................................................................194
Nabolisa v S 2013 8 BCLR 964 (CC)............................................................................................368
Naidenov v Minister of Home Affairs 1995 7 BCLR 891 (T).......................................39, 272, 474
Nasionale Party in die Oos-Kaap v Port Elizabeth Oorgangsraad
1998 2 BCLR 141 (SE)..............................................................................................................246
National Coalition for Gay & Lesbian Equality v Minister of Home Affairs
1998 12 BCLR 1517 (CC), 1999 1 SA 6 (CC).................. 26, 179, 183, 190, 191, 291, 318, 330,
334, 342, 348, 377
National Coalition for Gay and Lesbian Equality v Minister of Justice
2000 1 BCLR 39 (CC), 2000 2 SA 1 (CC)........................................................266, 269, 334, 432
National Credit Regulator v Opperman 2013 2 BCLR 170 (CC),
2013 2 SA 474 (CC) ..................................................................................................313, 421, 422
National Director of Prosecutions v Mohammed NO
2002 9 BCLR 970 (CC), 2002 4 SA 843 (CC)..........................................................................190
National Director of Public Prosecutions v Mohamed NO 2003 5 BCLR 476 (CC) ...............480
National Director of Public Prosecutions v Ro Cook Properties
2004 8 BCLR 844 (SCA) ...........................................................................................................427
National Director of Public Prosecutions v Seevnarayan 2003 7 BCLR 766 (C)..............320, 471
National Gambling Board v Premier of KwaZulu-Natal
2002 2 BCLR 156 (CC), 2002 2 SA 715 (CC)..................................................................221, 223
National Media Ltd v Bogoshi 1999 1 BCLR 1 (SCA), 1998 4 SA 1196 (SCA) ........................393
National Media Ltd v Jooste 1996 3 SA 262 (SCA).............................................................376, 378
Naude v Fraser 1998 8 BCLR 945 (SCA) 964F, 1998 4 SA 539 (SCA) ......................................270
NCGLE v Minister of Justice 1998 12 BCLR 1517 (CC), 1999 1 SA 6 (CC) .............................401
Ndabangaye 2004 4 BCLR 378 (C)..............................................................................................413
Nedcor Bank v Hennop 2003 3 SA 622 (T) ................................................................................340
NEHAWU v University of Cape Town 2003 2 BCLR 154 (CC),
2003 3 SA (CC) ...........................................................................................29, 267, 274, 289, 415
Nel v Le Roux NO 1996 4 BCLR 592 (CC),
1996 3 SA 562 (CC) ................................................................. 262, 302, 364, 369, 390, 393, 465
Nell v Nell 1990 3 SA 889 (T) ......................................................................................................377
New National Party of South Africa v Government of the RSA
1999 4 BCLR 457 (C)..................................................................................................................94
New National Party of South Africa v Government of the RSA
1999 5 BCLR 489 (CC), 1999 3 SA 191 (CC).......................... 10, 69, 92, 93, 94, 103, 104, 282,
297, 298, 317, 406, 407, 411
Ngewu v Post Office Retirement Fund 2013 4 BCLR 421 (CC) … ...................................333, 341
Ngqukumba v Minister of Safety and Security 2014 7 BCLR 788 (CC),
2014 5 SA 112 (CC)…...............................................................................................................421
Ngxusa v Secretary, Department of Welfare, Eastern Cape
Provincial Government 2000 12 BCLR 1322 (E)....................................................438, 444, 493
Nhlabatini v Fick 2003 7 BCLR 806 (LCC).........................................................................428, 432
Page
Njongi v MEC, Department of Welfare, Eastern Cape
2008 6 BCLR 571 (CC), 2008 (4) SA 237 (CC) ......................................................................483
Nkabinde v Judicial Service Commission 2016 11 BCLR 1429 (CC), 2017 3 SA 119 (CC) … 185
Nkosi v Bührmann 2002 6 BCLR 574 (SCA), 2002 1 SA 372 (SCA) .........................................385
NM v Smith 2007 7 BCLR 751 (CC), 2007 5 SA 250 (CC) ................295, 348, 375, 378, 380, 381
Nokotyana v Ekurhuleni Metropolitan Municipality
2010 4 BCLR 312 (CC) .............................................................................................................440
North and Central Council v Roundabout Outdoors (Pty) Ltd
2002 2 SA 625 (D).....................................................................................................317, 390, 394
Noupoort Christian Center v Minister, National Department of Social
Development 2005 10 BCLR 1034 (T) ....................................................................................467
NSPCA v Minister of Agriculture, Forestry and Fisheries
2013 10 BCLR 1159 (CC), 2013 5 SA 571 (CC)........................................................................63
NUMSA v Bader Bop (Pty) Ltd 2003 2 BCLR 182 (CC), 2003 (3) SA 513 (CC) .............263, 416
NUMSA v Fry’s Metals (Pty) Ltd 2005 9 BCLR 879 (SCA) ................................................181, 187
Nyamakazi v President of Bophuthatswana 1992 4 SA 540 (B)...................................................38
Nyathi v MEC for the Department of Health, Gauteng
2008 9 BCLR 865 (CC), 2008 5 SA 94 (CC)............................................................................344
O
O’Meara NO v Padayachi; O’Meara NO v Govender 1997 2 BCLR 258 (D) ...........................242
Occupiers 51 Olivia Road v City of Johannesburg 2008 5 BCLR 475 (CC),
2008 3 SA 208 (CC) ..................................................................................................................441
Occupiers of Erven 87 and 88 Berea v De Wet
2017 8 BCLR 1015 (CC), 2017 5 SA 346 (CC)........................................................................441
Offit Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd
2011 2 BCLR 189 (CC), 2011 1 SA 293 (CC)..........................................................................425
Olitzki Property Holding v State Tender Board 2001 8 BCLR 779 (SCA),
2001 3 SA 1247 (SCA) ......................................................................................................193, 469
Olivia Road v City of Johannesburg 2008 5 BCLR 475 (CC), 2008 (3) SA 208 (CC) ..............444
Omar v Government of the RSA 2006 2 BCLR 253 (CC), 2006 2 SA 289 (CC).......................484
Omar, Ex parte 2003 10 BCLR 1087 (CC), 2006 2 SA 294 (CC) ..............................................195
Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds
1997 8 BCLR 1066 (T)..............................................................................................275, 401, 493
Oppelt v Head:Health, Department of Health Provincial Administration: Western Cape
2015 12 BCLR 1471 (CC), 2016 1 SA 325 (CC 2013 9 BCLR 989 (CC) ...............................442
Optimal Property Solutions (CC), Ex parte 2003 2 SA 1136 (C)..............................................399
Oriani-Ambrosini v Sisulu 2013 1 BCLR 14 (CC), 2012 6 SA 588 (CC) … ..............107, 113, 120
Oudshoorn Municipality 2015 10 BCLR 1187 (CC), 2015 6 SA 115 (CC) … ..........................186
OVS Vereniging vir Staatsondersteunde Skole v Premier Provinsie Vrystaat
1996 2 BCLR 248 (O) ...............................................................................................................473
P
P v P 2007 5 SA 103 (C)................................................................................................................341
Papachristoforou v MEC for Finance and Economic Affairs,
North West Province 1998 10 BCLR 1237 (B)........................................................................213
Parbhoo v Getz NO 1997 10 BCLR 1337 (CC), 1997 4 SA 1095 (CC)......................................188
Parekh v Minister of Home Affairs 1996 2 SA 710 (D) ..............................................................474
Park-Ross v Director: Officer for Serious Economic Offences
1995 2 BCLR 198 (C), 1995 2 SA 148 (C)...............................................................................382
Patcor Quarries v Issroff 1998 4 BCLR 467 (SED) 476 ......................................................285, 286
Paulsen v Slip Knot Investments 777 (Pty) Ltd
2015 5 BCLR 509 (CC), 2015 3 SA 479 (CC)..................................................................182, 486
Pennington v Friedgood 2002 3 BCLR 298 (C), 2002 1 SA 251 (C).........................................466
Penrice v Dickenson 1945 AD 6...................................................................................................175
Page
Permanent Secretary of the Department of Education, Eastern Cape v Ed-U-College (PE)
(Section 21) Inc 2001 2 BCLR 118 (CC), 2001 2 SA 1 (CC) .........................193, 465, 466, 493
Petersen v Maintenance Officer 2004 2 BCLR 205 (C), 2004 2 SA 56 (C) ..............295, 342, 446
Petro Props (Pty) Ltd v Barlow 2006 5 SA 160 (W)....................................................................395
PFE International Inc (BVI) v Industrial Development Corporation of South Africa Ltd
2013 1 BCLR 55 (CC), 1 SA (CC)............................................................................291, 460, 462
Pharmaceutical Manufacturers Association of SA; In re: ex parte application
of the President of the RSA
2000 3 BCLR 241 (CC), 2000 1 SA 674 (CC)............................................10, 126, 148, 182, 299
465, 466, 471
Pharmaceutical Society of SA v Minister of Health; New Clicks
SA (Pty) Ltd v Tsahabalala-Msimang 2005 6 BCLR 576 (SCA) .....................................480, 481
Pheko v Ekhurleni Metropolitan Municipality No 2
2015 6 BCLR 6 BCLR 711 (CC), 2015 5 SA 600 (CC)......................................................311, 360
Phenithi v Minister of Education 2006 11 BCLR 1314 (SCA) ...................................................473
Phillips v National Director of Public Prosecutions (WLD)
2003 4 BCLR 357 (CC), 2003 3 SA 345 (CC)..................................................195, 258, 391, 392
Phillips v National Director of Public Prosecutions (WLD)
2006 2 BCLR 274 (CC), 2006 1 SA 505 (CC)..................................................................182, 394
Phoebus Apollo Aviation CC v Minister of Safety and Security
2003 1 BCLR 14 (CC), 2003 2 SA 34 (SCA)....................................................................186, 423
Phumelela Gaming and Leisure Ltd v Gründling
2006 8 BCLR 883 (CC) .....................................................................186, 266, 268, 270, 414, 422
Platinum Asset Management (Pty) Ltd v Financial Services Board
2006 4 SA 73 (W) ......................................................................................................................382
Port Elizabeth Municipality v Various Occupiers
2004 12 BCLR 1268 (CC), 2005 1 SA 217 (CC)......................................................317, 440, 442
Potgieter v Kilian 1995 11 BCLR 1498 (N), 1996 2 SA 276 (N) ................................................393
Potgieter v LUR: Gesondheid, Provinsiale Regering, Gauteng
2001 11 BCLR 1175 (CC) .........................................................................................................482
Poverty Alliance Network v President of the RSA
2010 6 BCLR 520 (CC) .........................................................................10, 25, 117, 130, 131, 201
Powell NO v Van der Merwe 2005 7 BCLR 675 (SCA), 2005 5 SA 62 (SCA) ...........................381
Premier of KwaZulu-Natal v President of the RSA
1995 12 BCLR 1561 (CC), 1996 1 SA 769 (CC)..............................................................130, 210
Premier of Mpumalanga v Executive Committee of State-Aided Schools:
Eastern Transvaal 1999 2 BCLR 151 (CC), 1999 2 SA 91 (CC)................................27, 275,473
Premier of the Province of the Western Cape v President of the RSA
1999 4 BCLR 382 (CC), 1999 3 SA 657 (CC)..........................................................159, 221, 223
Premier of the Province of the Western Cape v The Electoral Commission
1999 11 BCLR 1209 (CC) .................................................................................................183, 204
Premier, Limpopo Province v Speaker of the Limpopo Provincial Legislature
2011 11 BCLR 1181 (CC), 2011 6 SA 396 (CC)......................................................179, 216, 225
President of RSA v M & G Media Ltd
2011 4 BCLR 363 (CC), 2011 (2) SA 1 (SCA) ................................................................459, 462
President of RSA v Democratic Alliance
[2018] ZACS 70.........................................................................................................................154
President of RSA v Modderklip Boerdery (Pty) Ltd
2005 8 BCLR 786 (CC), 2005 5 SA 3 (CC)..............................................................................423
President of the Ordinary Court Martial Lieutenant-
Colonel Mardon NO v The Freedom of Expression Institute
1999 11 BCLR 1219 (CC) .........................................................................................................195
President of the RSA v Hugo 1997 6 BCLR 708 (CC),
1997 4 SA 1 (CC) ................................................. 22, 35, 148, 163, 183, 299, 311, 313, 336, 341
President of the RSA v Modderklip Boerdery Pty Ltd 2005 8 BCLR 789 (CC),
2005 5 SA 3 ................................................................................................................477, 479, 485
Page
President of the RSA v Office of the Public Protector
2018 2 SA 100 (GP).................................................................................................................. 149
President of the RSA v SARFU
1999 2 BCLR 175 (CC), 1999 2 SA 14 (CC)....................................182, 184, 194, 195, 471, 479
President of the RSA v SARFU 47
1999 7 BCLR 725 (CC), 1999 4 SA 147 (CC).......................... 133, 175, 177, 178, 301, 27, 479.
President of the RSA v SARFU
1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC)................... 10, 148, 151, 153, 299, 300, 465, 466
President of the RSA v UDM 2002 11 BCLR 1164 (CC), 2003 1 SA 472 (CC) ................180, 184
President of the RSA: In re: Constitutionality of the Liquor Bill,
Ex parte 2000 1 BCLR 1 (CC), 2000 1 SA 732 (CC) ........................28, 106, 126, 179, 206, 209
Pretoria City Council v Walker
1998 3 BCLR 257 (CC), 1998 2 SA 363 (CC)..........................................................................335
Pretorius v Minister of Correctional Services 2004 2 SA 658 (T)..............................................361
Price Waterhouse Inc v National Potato Co-operative Ltd 2004 9 BCLR 930 (SCA) ..............484
Prince v President of the Law Society of the Cape of Good Hope
2002 3 BCLR 231 (CC), 2002 2 SA 794 (CC).................................................188, 257, 318, 322,
330, 384, 385, 386, 387, 458
Prince v President of the Law Society, Cape of Good Hope
1998 8 BCLR 976 (C)........................................................................................................320, 326
Prince v President, Cape Law Society 2001 2 BCLR 133 (CC), 2001 2 SA 388 (CC)...............186
Prinsloo v RCP Media Ltd t/a Rapport 2003 4 SA 456 (T) ...............................................376, 397
Prinsloo v Van der Linde 1997 6 BCLR 759 (CC),
1997 3 SA 1012 (CC) ............................................... 281, 282, 331, 333, 335, 338, 343, 347, 351
Print Media South Africa v Minister of Home Affairs
2012 12 BCLR 1364 (CC), 2012 6 SA 443 (CC) .................... 313, 344, 389, 393, 394, 396, 397
Prior v Battle 1998 8 BCLR 1013 (Tk), 1999 2 SA 850 (Tk)......................................................340
Prophet v National Director of Public Prosecutions
2007 2 BCLR 140 (CC), 2007 (6) SA 169 (CC) ..............................................................186, 428
Provincial Minister of Local Government v Municipal Council of the
Oudshoorn Municipality 2015 10 BCLR 1187 (CC), 2015 6 SA 115 (CC)...........................190
Public Servants Association obo Olufunmilayi Itunu Ubogu v
Head of Deparment of Health, Gauteng 2018 2 BCLR 184 (CC).........................................482
Public Servants’ Association of SA v Minister of Justice
1997 5 BCLR 577 (T), 1997 3 SA 925 (T) ...............................................................................343
Q
Qhinga v S 2011 9 BLCR 980 (CC)..............................................................................................490
Qozeleni v Minister of Law and Order 1994 1 BCLR 75 (E), 1994 3 SA 625 (E) ....................757
R
R v Pretoria Timber Co (Pty) Ltd 1950 3 SA 163 (A) ................................................................471
R v Steyn 1954 1 SA 324 (A).........................................................................................................463
Radio Pretoria v Voorsitter van die Onafhanlike
Kommunikasie-owerheid van SA 2006 3 BCLR 444 (T) ........................................300, 312, 396
Raduvha v Minister of Safety and Security 2016 10 BCLR 1253 (CC) … .................................448
Rail Commuters Action Group v Transnet Ltd t/a Metrorail
2005 4 BCLR 301 (CC), 2005 2 SA 359 (CC)....................................54, 193, 194, 278, 372, 437
Ramakatsa v Magashule 2013 2 BCLR 202 (CC) … .............................................99. 290, 403, 405
Ramuhovhi v President of the RSA 2018 2 BCLR 217 (CC) ….................................................245
Rates Action Group v City of Cape Town
2004 12 BCLR 1328 (C), 2004 5 SA 545 (C)...................................................................245, 335
Rates Action Group v City of Cape Town 2006 1 SA 496 (SCA) ...............................................239
Rath v Rees 2007 1 SA 99 (C).......................................................................................................383
Reddy v Siemens Telecommunications (Pty) Ltd
2007 2 SA 486 (SCA).........................................................................258, 284, 295, 319, 413, 414
Page
Reflect-All 1025 CC v MEC for Public Transport, Roads and Works,
Gauteng Provincial Government
2010 1 BCLR 61 (CC), 2009 6 SA 391 (CC)............................................................422, 424, 428
Regering van die RSA v SANTAM Versekeringsmaatskappy 1964 1 SA 546 (W).......................79
Rehman v Minister of Home Affairs 1996 2 BCLR 281 (Tk).......................................................46
Reitzer Pharmaceuticals (Pty) Ltd v Registrar of Medicines
1998 9 BCLR 1113 (T), 1998 4 SA 660 (T) .............................................................................412
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
2009 9 BCLR 847 (CC), 2010 3 SA 454 (CC)..........................................................................444
Richter v Minister for Home Affairs
2009 5 BCLR 448 (CC), 2009 3 SA 615 (CC)..................................................................263, 407
Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719...............................285
Road Accident Fund; Minister for Transport v Mdeyide
2011 1 BCLR 1 (CC), 2011 2 SA 293 (CC)..............................................................................483
Road Accident Fund v Makwetlane 2005 4 SA 51 (SCA) ...........................................................428
Ronald Bobroff and Partners Inc v De la Guerre; South African Association of
Personal Injury Lawyers v Minister of Justice and Constitutional Development
2014 4 BCLR 430 (CC), 2014 3 SA 134 (CC).....................................................321, 333, 244.74
Rösemann v General Council of the Bar of SA 2004 1 SA 568 (SCA) ......................................410
Roux v Die Meester 1997 1 SA 815 (T) .......................................................................................473
Rudolph v Commissioner for Inland Revenue NO
1994 2 BCLR 9 (W), 1994 3 SA 771 (W) .................................................................................382
Rural Maintenance (Pty) Ltd v Maluti A-Phofong Local Municipality
2017 1 BCLR 64 (CC) .................................................................................................................30
Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration 2006 11 BCLR 1021 (SCA)...................................415
Ryland v Edros 1997 1 BCLR 77 (C), 1997 2 SA 690 ©......................................................231, 285
S
S v Baloyi 2000 1 BCLR 86 (CC), 2000 2 SA 425 (CC).......................................262, 263, 266, 364
S v Basson 2004 6 BCLR 620 (CC), 2005 1 SA 171 (CC) ...................................................175, 176
S v Basson 2005 12 BCLR 1192 (CC), 2005 1 SA 171 (CC) .......................................263, 302, 479
S v Bhulwana; S v Gwadiso 1995 12 BCLR 1579 (CC), 1996 1 SA 388 (CC) ....182, 192, 262, 319
S v Boesak 2001 1 BCLR 36 (CC), 2001 1 SA 912 (CC) .....................................182, 186, 361, 367
S v Coetzee 1997 4 BCLR 437 (CC), 1997 3 SA 527 (CC) .................................................361, 367
S v Collier 1995 8 BCLR 975 (C) .................................................................................................175
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat
1999 7 BCLR 771 (CC), 1999 4 SA 623 (CC)..................................................................364, 487
S v Dodo 2001 5 BCLR 423 (CC), 2001 3 SA 382 (CC) .............................353, 364, 365, 367, 368
S v Dzukuda; S v Tshilo 2000 11 BCLR 1252 (CC), 2000 1 SA 1252 (CC) ...............................488
S v Friedman 1996 3 BCLR 347 (W)............................................................................................313
S v Huma 1996 1 SA 232 (W).......................................................................................................353
S v Jordan 2002 11 BCLR 1117 (CC), 2002 6 SA 642 (CC) ...............................................341, 490
S v Khumalo 2006 9 BCLR 1117 (N) ...........................................................................................491
S v Kola 1966 4 SA 322 (A).............................................................................................................76
S v Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC),
1997 4 SA 1176 (CC) ............................................................... 316, 384, 386, 387, 410, 411, 412
S v Makwanyane 1995 6 BCLR 665 (CC),
1995 (3) SA 391 (CC) ....................................................................10, 11, 20, 27, 28, 29, 30, 257,
282, 315, 316, 347, 348, 351,
353, 356, 364, 368
S v Mamabolo 2001 5 BCLR 449 (CC), 2001 3 SA 409 (CC).......................................30, 392, 394
S v Manamela 2000 5 BCLR 491 (CC), 2000 3 SA 1 (CC) .........................265, 267, 322, 323, 343
S v Manyonyo 1999 12 BCLR 1438 (CC).....................................................................................343
S v Masiya 2007 8 BCLR 827 (CC), 2007 5 SA 30 (CC)..............................................................264
S v Mathebula 1997 1 BCLR 123 (W)..........................................................................................285
Page
S v Matomela 1998 3 BCLR 339 (Ck) ......................................................................................83, 85
S v Mbolombo 1995 5 BCLR 614 (C) ..........................................................................................487
S v Melani 1995 5 BCLR 632 (E), 1995 4 SA 412 (E).................................................................487
S v Mercer 2004 2 BCLR 109 (CC), 2004 2 SA 598 (CC)...........................................................185
S v Mhlakaza 1996 6 BCLR 814 (C).............................................................................................487
S v Mhlungu 1995 7 BCLR 793 (CC), 1995 2 SA 642 (CC),
1995 3 SA 867 (CC) ........................................................................................................27, 31, 77
S v Moila 2006 1 SA 330 (T) 346..................................................................................................394
S v Niemand 2001 11 BCLR 1181 (CC), 2001 11 BCLR 1181 (CC),
2002 1 SA 21 (CC) ............................................................................................................365, 368
S v Ndhlovu 2002 2 SACR 325 (SCA) ..................................................................................343, 487
S v Nkosi 2002 1 SA 494 (W)........................................................................................................452
S v Ntsele 1997 11 BCLR 1543 (CC)......................................................................................27, 192
S v Ntuli 1996 1 BCLR 141 (CC), 1996 1 SA 1207 (CC),
1996 1 SA 1208 (CC) ........................................................................................191, 330, 343, 490
S v Orie 2004 3 SA 584 (C) 591....................................................................................................377
S v Pennington 1997 10 BCLR 1413 (CC), 1997 4 SA 1076 (CC).............................188, 192, 193
S v Pienaar 2000 7 BCLR 800 (NC) ...............................................................................................83
S v Rens 1996 2 BCLR 155 (CC), 1996 1 SA 1218 (CC).....................................................327, 343
S v S 2011 7 BCLR 740 (CC) ........................................................................................................186
S v Sebejan 1997 8 BCLR 1086 (T)..............................................................................................487
S v Shaba 1998 2 BCLR 220 (T)...................................................................................................283
S v Steyn 2001 1 BCLR 52 (CC), 2002 1 SA 1146 (CC)..............................................192, 330, 490
S v Tandwa 2008 1 SACR (SCA) ..................................................................................................491
S v Thunzi 2010 10 BCLR 983 (CC) ............................................................................................195
S v Van der Merwe 1997 10 BCLR 1470 (O)...............................................................................487
S v Van Niekerk 1972 3 SA 706 (A) .............................................................................................197
S v Van Rooyen 2002 8 BCLR 810 (CC),
2002 5 SA 246 (CC) ..................................................... 9, 162, 171, 172, 173, 174, 195, 289, 302
S v Van Zyl 1991 1 SA 804 (A) 808 820........................................................................................285
S v Vermaas; S v Du Plessis 1995 7 BCLR 851 (CC), 1995 3 SA 292 (CC) ................................297
S v Williams 1995 7 BCLR 861 (CC),
1995 3 SA 632 (CC) ................................................. 272, 271, 279, 316, 323, 353, 364, 368, 452
S v Z and 23 similar cases 2004 4 BCLR 410 (E).........................................................................193
S v Zinn 1969 2 SA 537 (A) 540 ...................................................................................................488
S v Zuma 1995 4 BCLR 401 (CC), 1995 2 SA 642 (CC) .......................................................27, 488
SA Association of Personal Injury Lawyers v Heath
2001 1 BCLR 77 (CC), 2001 1 SA 883 (CC)....................................................................171, 175
SA Reserve Bank v Shuttleworth 2015 8 BCLR 959 (CC), 2015 5 SA 146 (CC)
2001 1 BCLR 77 (CC), 2001 1 SA 883 (CC)............................................................................179
SA Veterinary Council v Veterinary Defence Association
2003 7 BCLR 697 (SCA), 2003 4 SA 546 (SCA)..............................................................467, 495
SABC Ltd v National Director of Public Prosecutions
2007 2 BCLR 167 (CC), 2007 1 SA 523 (CC)..........................................301, 390, 392, 394, 482
SABC v Public Protector 2002 4 BCLR 340 (T)..........................................................................397
SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing)
2000 8 BCLR 886 (CC), 2000 3 SA 705 (CC)..........................................................................182
Sachs v Dönges NO 1950 2 SA 265 (A) .........................................................................................35
SAMWU v Minister of Co-operative Governance and Traditional Affairs
2017 5 BCLR 641 (CC) .............................................................................................................119
Sanderson v Attorney-General, Eastern Cape 1997 12 BCLR 1675 (CC),
1998 2 SA 38 (CC) ......................................................................................................27, 193, 489
SANDU v Minister of Defence 1999 6 BCLR 615 (CC),
1994 4 SA 459 (CC) ..................................................................................190, 392, 416, 418, 492
SANDU v Minister of Defence 2007 8 BCLR 863 (CC), 2007 (5) SA 400 (CC).......................291
SANDU v Minister of Defence 2007 9 BCLR 971 (SCA) ...........................................................418
Page
SANDU v Minister of Defence: In re SANDU v Minister of Defence
2003 9 BCLR 1055 (T)..............................................................................................................418
Sarrahwitz v Maritz 2015 8 BCLR 925 (CC), 2015 4 SA 491 (CC) …........................................333
SATAWU v Garvas 2012 8 BCLR 840 (CC), 2013 1 SA 83 (CC) .......................295, 313, 397, 400
SATAWU v Moloto 2012 11 BCLR 1177 (CC), 2012 6 SA 249 (CC) …....................................417
Satchwell v President of the RSA 2002 9 BCLR 986 (CC), 2002 6 SA 1 (CC) ..........190, 266, 342
Savoi v National Director of Public Prosecutions 2014 5 BCLR 60 (CC),
2014 5 /sa 317 (CC)..................................................................................................321, 334, 491
Seodin Primary School v MEC Education, Northern Cape 2006 4 BCLR 542 (NC).................85
Shabalala v Attorney-General, Transvaal 1995 12 BCLR 1593 (CC),
1996 1 SA 725 (CC) ....................................................................................................31, 311, 463
Shaik v Minister of Justice and Constitutional Development
2004 4 BCLR 333 (CC), 2004 3 SA 599 (CC)..........................................................................186
Shilubana v Mwamitwa 2008 9 BCLR 914 (CC), 2009 2 SA 66 (CC) ................................268, 292
Shinga v S; O’ Connel v S 2007 5 BCLR 474 (CC), 2007 4 SA 601 ...........................................490
Shongwe v S 2003 8 BCLR 858 (CC) ...........................................................................................187
Shoprite Checkers (Pty) Ltd v MEC for Economic Development,
Environmental Affairs and Tourism Eastern Cape
2015 9 BCLR (CC), 2015 6 SA 125 (CC) ........................................................................421, 422
Shunmugam v The Newcastle Local Municipality 2008 5 BCLR 532 (N),
2008 JOL 21212 (N) .................................................................................................................242
Sibiya v DPP: Johannesburg High Court 2005 8 BCLR 812 (CC),
2005 5 SA 315 (CC) ..........................................................................................................361, 370
Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC),
2008 2 SA 24 (CC) ....................................................................................................415, 467, 470
Sing v Minister of Employment and Immigration [1985] 1 SCR 177 .......................................325
Singo v S 2002 8 BCLR 793 (CC), 2002 4 SA 858 (CC) .....................................................190, 265
Soller v President of the RSA 2005 3 SA 567 (T)........................................................................175
Soller NO v G 2003 5 SA 430 (W) 438.........................................................................................452
Sonderup v Tondelli 2001 2 BCLR 152 (CC), 2001 1 SA 1171 (CC)..........................................29
Sonke Gender Justice Network v Malema 2010 7 BCLR 729 (EqC) .........................................392
Soobramoney v Minister of Health, KwaZulu-Natal
1997 12 BCLR 1696 (CC), 1998 1 SA 765 (CC)..............................133, 282, 355, 439, 442, 444
Soundprop 1239 CC t/a “777 Casino” v Minister of Safety and Security
1996 9 BCLR 1177 (C) 1181E, 1996 4 SA 1086 (C) ...............................................................410
South African Association of Personal Injury Lawyers v Heath
2001 1 BCLR 77 (CC), 2001 1 SA 883 (CC)..............................................................................62
South African Broadcasting Corporation Soc Ltd v Democratic Alliance
[2015] 4 All SA 719 (SCA), 2016 2 SA 522 (SCA) ...........................................................70, 166
South African Diamond Producers Organisation v Minister of Minerals and Energy
2017 10 BCLR 1303 (CC), 2017 6 SA 331 (CC)................................................10, 410, 411, 425
South African Liquor Traders Association v Chairperson, Gauteng Liquor Board
2006 8 BCLR 901 (CC) .............................................................................................................190
South African Police Service v Police and Prison Civil Rights Union
2011 9 BLCR (CC) 992 .............................................................................................................417
South African Police Service v Solidarity obo RM Barnard
2014 10 BCLR 1195 (CC), 2014 6 SA 123 … ..........................................................................339
Speaker of the National Assembly v De Lille
1999 11 BCLR 1339 (SCA), 1999 4 SA 863 (SCA)..........................................................110, 112
Speaker of the National Assembly v Makwetu 2001 3 BCLR 302 (C) .......................................102
Staatspresident v United Democratic Front 1988 4 SA 830 (A) ................................................455
Stainbank v South African Apartheid Museum at Freedom Park
2011 10 BCLR 1058 (CC) .........................................................................................................479
Standard Bank of SA Ltd v Sanderson 2006 9 BCLR 1022 (SCA),
2006 2 SA 264 (SCA).........................................................................................................424, 437
Standard Bank v Hunkydory Investments (No 1) 2010 1 SA (CPD).........................................344
Page
Stanfield v Minister of Correctional Services
2003 12 BCLR 1384 (C), 2004 4 SA 43 (C).............................................................................488
Steele v South Peninsula Municipal Council 2001 4 BCLR 418 (C),
2001 3 SA 640 (C) .............................................................................................................243, 247
Steenkamp NO v Provincial Tender Board, Eastern Cape
2007 3 BCLR 300 (CC), 2007 3 SA 121 (CC)..........................................................295, 467, 469
Steinberg v South Peninsula Municipality 2001 4 SA 1231 (SCA) ............................................430
Stoman v Minister of Safety and Security 2002 3 SA 468 (T) ....................................................343
Strategic Liquor Services v Mvumbi NO 2010 (2) SA 92 (CC),
2009 10 BCLR 1046 (CC) .................................................................................................480, 485
Strydom v Minister of Correctional Services 1999 3 BCLR 342 (W).........................................488
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation)
1998 1 SA 811 (SCA) …............................................................................................................486
State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd
2018 2 BCLR 240 (CC), 2018 2 SA 23 (CC) ….......................................................................465
Stopforth Swanepoel and Brewis Incorporated v Royal Anthem Investments (Pty) Ltd
2014 12 BCLR 1465 (CC), 2015 2 SA 539 (CC) ….................................................................480
Stuttafords Stores (Pty) Ltd v Salt of the Earth Creations (Pty) Ltd
2010 11 BCLR 1134 (CC), 2011 1 SA 267 (CC)......................................................................485
Supreme Gaming CC v Minister of Safety and Security 2000 3 SA 608 (SCA) ........................126
SW v F 1997 1 SA 796 (O) ............................................................................................................450
Swartbooi v Brink (2) 2003 5 BCLR 502 (CC)............................................................................247
T
T v C 2003 2 SA 298 (W) ..............................................................................................................447
Taylor v Kurtstag 2005 7 BCLR 705 (W),
2005 1 SA 362 (W) ............................................................................314, 318, 388, 402, 403, 457
Teddy Bear Clinic for Abused Children v Minister of Justice
and Constitutional Development 2013 12 BCLR 1429 (CC),
2014 2 SA 168 (CC) ......................................................... 257, 272, 348, 379, 382, 445, 446, 447
Telcordia Technologies, Inc v Telkom SA Ltd 2007 5 BCLR 503 (SCA) .................................466
Tettey v Minister of Home Affairs 1999 1 BCLR 68 (D) 79, 1999 3 SA 715 (D) ........39, 272, 474
The Citizen 1978 (Pty) Ltd v McBride 2011 8 BCLR 816 (CC), 2011 4 SA 191.........................11
The National Education Policy Bill No 83 of 1995,
In re: 1996 4 BCLR 518 (CC), 1996 3 SA 289 (CC) ................ 71, 138, 147, 210, 211, 213, 221
The School Education Bill of 1995 (Gauteng), In re: 1996 4 BCLR 537 (CC)........................453
Thebus v S 2003 10 BCLR 100 (CC), 2003 6 SA 505 (CC) ................191, 269, 270, 306, 367, 486
Theewaterskloof Holdings (Edms) Bpk v Jacobs 2002 3 SA 401 (LCC)...........................436, 441
Theron v Ring van Wellington, NG Sendingkerk in SA 1976 2 SA 1 (A).................................443
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public
Prosecutions; Zuma v National Director of Public Prosecutions
2009 3 BCLR 309 (CC), 2009 3 BCLR 309 (CC) ....................................................354, 383, 478
Thukwane v Minister of Correctional Services 2003 1 SA 51 (T)..............................................454
Tlouamma v Mbete, Speaker of the National Assembly 2016 2 BCLR 242 (WCC) .........111, 113
Tongoane v Minister for Agriculture and Land Affairs
2010 8 BCLR 741 (CC), 2010 6 SA 214 (CC)..................................................................119, 466
Total Support Management v Diversified Health Systems (SA)
2002 4 SA 661 (SCA).................................................................................................................481
Town Council of Lichtenburg v Premier of the North-West Province
1995 8 BCLR 959 (B)................................................................................................................240
Transkei Public Servants Association v Government of the RSA
1995 9 BCLR 1235 (Tk)............................................................................................................423
Transnet Ltd v Goodman Bros (Pty) Ltd 2001 2 BCLR 176 (SCA),
2001 1 SA 853 (SCA).................................................................................................................467
Transnet Ltd v SA Metal Machinery Co 2006 4 BCLR 473 (SCA),
2006 6 SA 285 (SCA).........................................................................................................380, 460
Page
Travers v National Director of Public Prosecutions 2007 3 SA 242 (T)....................................491
Trinity Broadcasting (Ciskei) v Independent Communications
Authority of SA 2004 3 SA 346 (SCA)......................................................................................472
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal
Planning and Development Tribunal 2016 4 BCLR 469 (CC), 2016 3 SA 160 (CC) ..........264
Trustees, Children’s Rights Resource Centre v
Pioneer Foods (Pty) Ltd 2013 3 BCLR 279 (SCA) … ............................................................494
Tseleng v Chairman, Unemployment Insurance Board 1995 2 BCLR 138 (T) .......................473
Tshona v Principal, Victoria Girls High School 2007 5 SA 66 (ECD).......................................455
Tsotetsi v Mutual and Federal Insurance Company Ltd
1996 11 BCLR 1439 (CC), 1997 1 SA 585 (CC)........................................................................26
Tutu v Minister of Internal Affairs 1982 4 SA 571 (T) ...............................................................153
Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development
Bank of SA t/a the Land Bank 2011 5 BCLR 505 (CC), 2011 (3) SA 1 (CC) ......................485
U
UDM v President of the RSA (1) 2002 11 BCLR 1179 (CC), 2003 1 SA 495 (CC) ..........297, 327
Uitenhage Local Transitional Council v Zenza 1997 8 BCLR 1115 (EC) ................................466
Uncedo Taxi Service Association v Maninjwa 1998 6 BCLR 683 (EC) .....................................369
Union of Refugee Women v Director: The Private Security Industry
Regulatory Authority 2007 4 BCLR 339 (CC), 2007 4 SA 381 (CC) ...............................38, 342
Unitas Hospital v Van Wyk 2006 4 SA 436 (SCA)...............................................................480, 462
United Christian Democratic Party v Independent Electoral Commission
2004 9 BCLR 995 (B), 2004 2 All SA 336 (B) .........................................................................242
United Democratic Movement v President of the RSA (1)
2002 11 BCLR 1179 (CC), 2003 1 SA 495 (CC)................................................................98, 103
United Democratic Movement v Speaker of the National Assembly
2017 8 BCLR 1061 (CC), 2017 5 SA 300 (CC)........................................................105, 115, 144
United Greyhound Racing & Breeders Society v Vrystaat Dobbelraad
2003 2 SA 269 (O).....................................................................................................................398
University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services
2016 12 BCLR 1535 (CC), 2016 6 SA 596 (CC)…..................................................................482
University of the Free State v Afriforum
[2017] 2 All SA 808 (SCA), 2017 4 SA 283 (SCA) … ...............................................................84
University of Witwatersrand Law Clinic v Minister of Home Affairs
2007 8 BCLR 900 (CC) .............................................................................................................495
Uthukela District Municipality v President of the RSA
2002 11 BCLR 1220 (CC), 2003 1 SA 678 (CC)......................................195, 222, 223, 245, 248
Uthukela District Municipality v President of the RSA 2002 5 BCLR 479 (N).........................223
V
Van Biljon v Minister of Correctional Services 1997 6 BCLR 789 (C),
1997 4 SA 441 (C) .....................................................................................................................488
Van der Burg v NDPP 2012 8 BCLR 881 (CC) ...........................................................................450
Van der Merwe v Road Accident Fund 2006 6 BCLR 682 (CC),
2006 4 SA 103 (CC) ..........................................................................................191, 332, 333, 341
Van der Merwe v Slabbert NO 1998 6 BCLR 697 (N), 1998 3 SA 613 (N)...............................239
Van der Walt v Metcash Trading Ltd 2002 5 BCLR 454 (CC), 2002 4 SA 317 (CC) ...............344
Van Dyk v Maithufi NO 2004 5 BCLR 526 (T), 2004 1 SA 441 (T) ............................................98
Van Huyssteen v Minister of Environmental Affairs and Tourism
1995 9 BCLR 1191 (C) 1214B–D, 1996 1 SA 283 (C) ....................................................473, 493
Van Rensburg v SA Post Office Ltd 1998 10 BCLR 1307 (E) ....................................................479
Van Rooyen v The State 2002 8 BCLR 810 (CC), 2002 5 SA 246 (CC) ....................................453
Van Straaten v President of the RSA 2009 5 BCLR 480 (CC), 2009 3 SA 457 (CC) ................180
Page
Van Vuren v Minister for Correctional Services 2010 12 BCLR 1233 (CC) .....................262, 372
Van Wyk v Unitas Hospitaal 2008 4 BCLR 442 (CC) .................................................................186
Van Zijl v Hoogenhout 2005 2 SA 93 (SCA)...............................................................................489
Van Zyl v NNP 2003 10 BCLR 1167 (C), 2003 3 All SA 737 (C)................................................466
Veldman v Director of Public Prosecutions (WLD) 2006 2 SACR 319 (CC),
2007 3 SA 210 (CC), 2007 9 BCLR 929 (CC),.........................................................................186
Victoria & Alfred Waterfront (Pty) Ltd v Police Commissioner of the
Western Cape 2004 5 BCLR 538 (C) .......................................................................................421
Volks NO v Robinson 2005 5 BCLR 446 (CC)............................................................325, 336, 341
Von Abo v President of the RSA 2009 10 BCLR 1052 (CC), 2009 5 SA 345 (CC) ...........156, 184
W
Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd
2003 7 BCLR 710 (SCA) ...................................................................................................295, 371
Walele v City of Cape Town 2008 11 BCLR 1067 (CC), 2008 (6) SA 129 (CC).......................442
Waltons Stationery Co (Edms) Bpk v Fourie 1 994 1 BCLR 50 (O), 1994 4 SA 507 (O) ........412
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2008 11 BCLR 1123 (CC),
2009 (1) SA 337 (CC) .......................................................................................................262, 267
Waters v Khayalami Metropolitan Council 1997 3 SA 476 (W).................................................247
Weare v Ndebele 2009 4 BCLR 370 (CC), 2009 1 SA 600 (CC)................................195, 331, 333
Weenen Transitional Local Council v Van Dyk 2002 4 SA 653 (HHA)....................................244
Western Cape Minister of Education v Governing Body of Mikro Primary School
2005 10 BCLR 973 (SCA), 2006 1 SA 1 (CC)....................................................................85, 455
Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v North
West Provincial Government, Ex Parte 2000 4 BCLR 347 (CC),
2001 1 SA 500 (CC) ..................................................................................................207, 209, 226
Western Cape Residents’ Association v Parow High School 2006 3 SA 542 (C) ......................495
Western Cape v Kilian 2008 5 BLCR 496 (SCA).........................................................................488
Whittaker and Morant v Roos and Bateman 1912 AD 92 ..........................................................488
Wild v Hoffert 1998 6 BCLR 656 (CC)........................................................................................193
Wildlife Society of Southern Africa v Minister of Environmental Affairs &
Tourism of the RSA 1996 3 SA 1095 (Tk)...............................................................................419
Wittman v Deutscher Schülverein, Pretoria
1999 1 BCLR 92 (T), 1998 4 SA 423 (T) .................................................................285, 388, 457
Women's Legal Trust v President of the Republic of South Africa
2009 6 SA 94 (CC) ....................................................................................................................184
Worcester Muslim Jamaa v Valley 2002 6 BCLR 591 (C) ...........................................................302
Workers International to Rebuild the Fourth International v IEC
1994 3 SA 277 (CSPE) ..............................................................................................................100
X
Xu v Minister van Binnelandse Sake 1995 1 BCLR 62 (T), 1995 1 SA 185 (T); ................38, 474
Y
Ynuico Ltd v Minister of Trade & Industry 1995 11 BCLR 1453 (T) ...........25, 163, 261, 274 412
Z
Zanner v DPP, Johannesburg 2006 11 BCLR 1327 (SCA) .........................................................488
Zantsi v Chairman, Council of State, Ciskei 1995 2 SA 534 (Ck) ..............................................483
Zealand v Minister for Justice and Constitutional Development
2008 6 BCLR 601 (CC), 2008 (4) SA 458................................................363, 366, 367, 369, 372
Zondi v MEC for Traditional and Local Government
2005 4 BCLR 347 (CC), 2005 (3) SA 589 (CC) ..... 190, 265, 266, 335, 340, 464, 473, 478, 482
Index
A bill(s) of rights (continued)

control and enforcement
access to courts 187, 344, 471, 477–486
(see also judicial authority –control
administrative justice (see bill of rights)
over constitutional matters) 258–259,
administrative law 16, 147, 151, 162–163,
492–495
166
direct and indirect application 294–295
African Charter on Human and Peoples’ Rights
duties imposed by 277 ff
254
limitation of rights 309 ff
American Convention on Human Rights
general limitation clause 310 ff
254
law of general application 310–314
associations 56, 67, 165, 273, 280, 400–403,
less restrictive means 322
458, 494
nature and extent of limitation 319
auditor-general 54, 64, 69, 151, 165, 227
nature of right 317
authorities 13, 15, 20, 26, 55, 61, 231–232,
over inclusive limitation 321
268, 292, 388–389
purpose of limitation 318
authority (definition) 53
relation between purpose and limita-
tion 320–322
B
special limitation clauses 323–326
basic features doctrine 25 state of emergency 325
bill(s) 119–126 under inclusive limitation 321
adoption 119 ff onus of proof 257–258
approval 119 ff protected persons and institutions
assent 125 271–275
categories 119–123 specific rights 329 ff
constitutional amendments 127–131 academic freedom 391
money 119–123 access to courts 477–486
ordinary 119–121 access to elected public office 406
mixed section 75/section 76 bills access to housing, health care, food,
124–125 water and social services 435–455
section 75 bills 125 accused persons 488–491
section 76 bills 125 administrative justice (just administra-
disagreements 123–125 tive action) 459 ff
bill(s) of rights fair procedure 473
access to land and natural lawful action 470
resources 433–445 reasonableness 471
binding effect of 289 ff reasons 474
executive bodies 299–300 arrested persons 486
judicial organs 300–302 artistic creativity 391
law 290–295 assembly 397–400
legislative organs 296–299 association 400–404
organs of state 295 children 445–453
private persons and institutions citizenship 408
302–307 conscience, religion, thought, belief
conduct and interests protected by 277 ff and opinion 383–388
conduct and interests not protected by cruel, inhuman and degrading
287–288 punishment 364–365
521
bill(s) of rights (continued) citizenship (continued)
specific rights (continued) levels of government 46
cultural, language and religious loss 44
communities (associations) 457– marriage 44
458 naturalisation 43–44
detained persons 487–488 renunciation 45
education 454–456 restoration 45
elections 406 resumption 45
environment 418–420 statelessness 39
equality 329–345 civil procedure 73, 171, 480–481
expression/speech/press 389–397 coat of arms 4
fair trial 480–482, 489 commercial law 5, 73
freedom and security of the person Commission for Gender Equality 70, 168
359–372 Commission for the Promotion and Protec-
human dignity 347–354 tion of the Rights of Cultural, Religious
information 459–463 and Linguistic Communities 70, 168
labour relations 417–418 Commissions of inquiry 146, 466
committees (see parliament)
language and culture of choice 457–458
common law 5, 19, 21, 26, 28, 32–33, 138,
life 354–357
147, 169, 182, 187, 191–192, 256, 261,
movement 373
267–270, 288, 292, 294, 301, 306, 309,
occupational freedom 409–414
353, 371, 426, 468, 481, 492
political 404
common/community interests 7–8
political parties 405 community of people 3, 37 ff
privacy 375–383 constituency system(s) 95
property 420–439 constituent assembly 23
slavery, servitude and forced labour constituent authority 28
373–374 constitution 20 ff
trade unions and employers’ adoption 22–26,
organisations 417 amendment(s) 25
vote/franchise 406–408 certification 24
workers and employers 416–417 commencement 27
budget 121–122, 165, 214–215 entrenchment 127 ff
influence on interpretation of other
C legislation 31, 261 ff
interpretation 28–31
cabinet 157–159
justiciable 107
Chief Justice (see also judicial bodies) 108,
preamble 6, 10, 28, 57, 72–75
142–143, 151, 173, 177–178
ratification 24
citizens 3, 37 ff supreme law 21–22
rights of 38–39 Constitutional Assembly 16–17, 23–25, 28,
citizenship 3, 37 ff 255
acquisition 41–44 Constitutional Court (see judicial bodies)
bills of rights 41 constitutional practices (see conventions)
administrative justice 41 constitutional principles 17, 24–25, 30, 62,
equality principle 41 65, 128, 147, 162, 234, 255
birth 42 constitutional process 22–24
children 40 constitutional state 10
constitutional provisions 40–41 Convention on the Rights of the Child 40
deprivation 45 conventions 33 ff
descent 42 co-operative government 65–66, 222–227
dual 39 corporal punishment 353, 368
international law 39 counter majoritarian issue 132
Index 523
courts (see also judicial authority and bodies) executive authority (continued)
170 ff provincial (see provinces)
impartiality 171 executive bodies/organs 135 ff
independence 171 ff control over 164–166
criminal law 7, 49, 73, 264, 297, 368–369, executive president 140
426, 453 expropriation 429–433
criminal procedure 171, 285, 353, 356, 363,
365, 393, 446, 486–491 F
cultural, linguistic and religious commun-
ities 457–458 family law 384, 388
customary law (indigenous law, traditional federal courts 60
law) 5, 11, 19, 21, 26, 67, 73, 131, 253, federal government 68
266–270, 273, 287–288, 291, 310, 340 federal government bodies 68
federal state(s) 68–69
D federal systems 68
federation 68
death penalty 353, 368 Financial and Fiscal Commission 152, 168,
decentralisation 65 222, 237
declaration of rights 161, 465 flag 4, 80, 82
defamation 305, 350, 353–354 foreign law 29
delegation 163–164, 107
foreigners (see also citizens) 37–40, 272, 341–
Deputy President 153–154
342, 350, 373, 404, 408
disagreements (see bills)
franchise / right to vote 6, 9, 14, 16, 24, 38–
distribution of authority
39, 45–46, 78, 89, 92–95, 104, 123–26,
(see government authority)
242, 272, 298, 406–408
distribution of powers
functional areas (see provincial –legislatures)
(see government authority)
54–55, 65, 208–211, 217–218
E
G
election(s) 103–105 good morals (boni mores) 303
chairperson of National Council of government authority 53 ff
Provinces 111 definitions 33–57
Electoral Commission 69–70, 94, 104, 152,
distribution 58 ff
204, 242, 406
separation of powers (see also separation
head of government 142
of powers)58 ff
head of state 142
independent exercise 71 ff
local government(s) 240
levels of government 65–69
parliament 103–105
premier 219 origin 57–58
President 142 government functions 55–56, 148, 168–169
provincial legislature(s) 203–204
H
speaker 111
electoral systems 95–96 hate speech 391–392
entrenchment(s) head of government 140–142
(see constitution –entrenchment) head of state 140–142
European Convention for the Protection of houses of traditional leaders (see traditional
Human Rights and Fundamental Free- authorities)
doms 254, 310, 386, 421 Human Rights Commission 70
executive authority 135 ff
advice to 168–40 I
non-parliamentary 140
impartiality of the courts 175
parliamentary 140
imperative mandate 102–103
implied powers 147 legal system(s) 73–75
independence 4, 71 subsystems 73–74
independence of the courts 174–175 legislative authority 59, 87 ff
independent educational institutions 456 local level 242 ff
independent states 71 national level 87 ff
indigenous languages 82 provincial level 205–213
indigenous law (see customary law) legislative bodies/organs 59, 296–299, 311
interdict 193–194 legislative power(s)
interest of justice 27, 186, 268, 487 local governments 242 ff
intergovernmental relations 65, 199, parliament 87 ff
221–227 provincial legislatures 205–213
International Covenant on Civil and Political
legislative process (see also bills) 118 ff
Rights 254
parliamentary process 118 ff
International Covenant on Economic, Social
general characteristics 118–119
and Cultural Rights 254
South African 118 ff
international law 29, 48
money bills 121–123
interpretation 5, 7, 27–31, 169, 261–267
ordinary bills 119–121
J level(s) of government 65 ff
local government(s) 233 ff
judicial authority 169 ff
categories 247–250
independence 174–175
composition 239–246
judicial authority –control over constitu-
constitutional provisions 234–235
tional matters 176 ff
district councils 248
government bodies, disputes 183
jurisdiction 178 ff establishment 240–241
access to courts 188–189 functioning 246–247
bills 179 metropolitan councils 248
law not in operation 180 powers 242–246
Constitutional Court 181 ff relationship with other levels 221 ff
court decisions 182 ff
High Courts 187 M
other courts 187
minister(s) 154–157
Supreme Court of Appeal 188
motion(s) of no-confidence 141, 142
procedure 182
multi-party system 5, 6, 98–99, 306
judicial bodies/organs 3–4, 170 ff
municipalities (see local government(s))
access to 187, 344, 471
control over 196–197
judicial control 166–168, 131–133 N
judicial officers –appointment, qualifica- national anthem 4, 80
tions, remuneration, term of office 172– National Assembly 50, 69, 87, 91–92, 96–98,
174 105–123, 139, 142–143, 150, 156–157,
independence 171 ff 165–166, 173–174, 178, 180, 215, 242
Judicial Service Commission 173 National Council of Provinces 50, 87, 92, 96,
juristic person 4–5, 77–80, 242, 274–275, 100, 106, 108, 109, 127–130, 173, 212,
392, 399, 402, 410, 416–417, 423, 436, 215, 217, 223–227, 236, 239
460, 465, 478 nationality (see also citizenship)
natural persons 4–5, 75–76, 271–273, 330,
L
351, 355, 362, 379, 386, 402, 410, 416,
law of contract 284–285, 286, 290, 293, 303, 423, 436, 460, 465, 478
413 naturalisation (see citizenship)
law of delict 293, 297, 303, 363, 364, 371, 400 non-racialism 5–6
law of persons 7 non-sexism 5–6
Index 525
O President (continued)
powers and functions (continued)
office of profit 102
head of national executive 149–150
official languages 81–85
not as head of national executive 150–
organ of state –definition 53–55
151
on the advice/recommendation of 151
P statutory 148–152
parliament 88 ff together with the other cabinet
bicameral 91–92 members 150
composition 91 ff qualifications 143
dissolution 105–106 removal from office 144
franchise (see franchise/right to vote) remuneration 143
functioning (see parliament –procedures) term of office 137
functions 90 written decisions 153
judicial control 131 ff private law 8, 73, 292–295
members 100 propaganda for war 391–392
disqualifications 101 prosecuting authority 110, 396
mandate 103 provinces 199 ff
qualifications 101–103 demarcation 201
powers 106–107 executive authority 217 ff
presiding officers 111 executive council 220–222
privileges 109–110 legislative authority 203 ff
procedures 111 ff powers 204 ff
sources 112 premier 218–220
instruments 113 ff status 227–230
amendments 115–117 territory 201
committees 113 provincial
debate 114 ff constitution 202–203
decision-making 114 ff finances 213–215
motions 114 government 217 ff
order papers 115 government bodies 201 ff
public participation 117 legislature(s) 203 ff
questions 115 composition 203–204
quorums 114 election 204
voting 114 functioning 215–217
session 103 legislative authority 204
sittings 108 members 2048
term 100 powers 204 ff
unicameral 91–92 concurrent 205 ff
police 149, 160, 169–170 exclusive 205 ff
political parties 98–101, 405–406 financial 213–215
portfolio(s) 116, 119–120, 154 term 204
preamble 6, 10, 28, 31, 57, 74–77, 314 public administration 65, 76, 136, 159, 160,
prerogatives 33–35 166
President 142 ff public control 164, 197, 258
acting 145–146 public function 54, 82, 296, 289, 461
appointment 142 public interest 7, 45, 98, 108, 117, 257, 264,
executive 141 309, 324–325, 399, 430, 431, 433, 494,
oath of office 143 495
powers and functions 146 public law 10, 32, 56, 79, 378
after consulting 151 public opinion 31, 98
as proposed/nominated by 151 public power 54, 82, 182, 294, 461
common law 152–153 public protector 54, 69, 70, 152, 166, 228
public service 137 state of emergency 325
Public Service Commission 160 state security 7
punishment 90, 109–110, 197, 280, 317, 321, state(s) 3 ff
353, 356, 360, 364–365, 368–369, 490 community of people 3, 37 ff
independence 3, 71
R legal personality 3, 75
legal system 3, 77 ff
ratification (see constitution)
symbols 3, 80
referendum 23
territory 3, 47 ff
regional government (see provincial –
subordinate legislation 291
government)
subsidiarity 65, 300, 461, 469
regional level (see level(s) of government)
religion 329, 336, 342, 383–388, 457–458 T
representative government 88–89 territory 3, 47 ff
responsible government 88–89 traditional authorities 13, 231–232
right(s) (see bill(s) of rights) traditional law (see customary/
rule of law 5–10, 24–26, 75, 131, 291, 314, indigenous law)
383, 411 treasury 122, 215, 226
S U
seat(s) (see electoral system(s)) ubuntu 10, 11
self-governing territories 15 union 67
separation of powers 61–64 Universal Declaration of
sources of constitutional law 19, 23 ff Human Rights 254, 279, 310
custom 31 ff
statutes 19 ff V
sovereignty (see parliamentary sovereignty) voters roll 93–94
state administration
(see also public service) 137 W
state department(s) 53, 119, 130, 137, 154, Westminster system 15, 21–22, 33–34, 59–61,
156, 158, 163, 275 105, 108, 125, 140, 146, 155–156

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Rautenbach – Malherbe

Chapter 1 Law, state and individual .................................................................... 3

Chapter 2 Historical overview.............................................................................. 13

Chapter 3 Sources of constitutional law.............................................................. 19

Chapter 5 Territory .............................................................................................. 47

Chapter 6 Government authority......................................................................... 53

Chapter 9 National executive authority .............................................................. 135

Part 2 THE SOUTH AFRICAN BILL OF RIGHTS

Chapter 26 Information – Administrative action................................................ 459

Chapter 27 Access to courts – Criminal Procedure – The right to enforce

1 Law and state 3

1 Law and state

2 Constitutional law as part of the law

3 State and individual

3.2 The rule of law

26 See para 3.5 and Part 2 below.

33 S 39(1)(a) of the Constitution.

3.3 The constitutional state

3.5 Bills of rights

2.2.1 The constitution as statutory source of constitutional law

2.2.3 Constitutions with higher status than other laws

21 Even a provincial constitution adopted by a provincial legislature is subject to the national

2.3 The interpretation of constitutions62

69 Van der Walt AJ The Constitutional Property Clause (1997) 11–16.

(b) Values that underlie an open and democratic society

(c) International law

(d) Foreign law

2.4 The influence of the Constitution on the interpretation of other

95 Wiechers M VerLoren van Themaat Staatsreg (1981) 53.

3.2 The Westminster system

3.3 Prerogatives and conventions

108 Wiechers M VerLoren van Themaat Staatsreg (1981) 172–173.

2 Constitutional provisions on citizenship

28 The Convention on the Reduction of Statelessness contains examples of conditions.

47 S 14. A 1 of the International Convention on the Nationality of Married Women (1957)

5 Resumption and restoration of citizenship

6 Citizenship and different levels of government

2 Constitutional provisions on territory

1 Stern K I Das Staatsrecht der Bundesrepublik Deutschland (1977) 193.

3 International law provisions on territory

7 Particularly not in the founding provisions in ch 1 of the Constitution.

4 Exercise of government authority in territory

14 See Booysen H Volkereg (1989) ch 9.

19 See para 3.3 below.

2 Origin of government authority

3 Distribution of government authority

3.1 The separation of powers

3.1.2 Separation of powers in Britain, America and South Africa

31 See eg Henning PJvR “Die administratiewe staat” 1968 THRHR 1.

3.1.3 Separation of powers in practice

44 See the South Africa Act and the 1961 Constitution.

3.1.4 Delegated legislation

3.2 Levels of government

3.2.1 Number of levels

3.2.4 Basis for distinction

85 See the comprehensive studies by Cloete GS Etnisiteit en Groepsverteenwoordiging in die Staat-

4 State institutions supporting democracy

5 Independent exercise of government authority

South Africa Act 13 of 2000.