Slides prepared by: I.

Mulder

CONSTITUTIONAL LAW

LU 6 - Chapter 9 Institutions and

the Strengthening of Democracy
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ICE Tasks
❖ Check VC Regularly

Assignment
❖ Check PAS for due date
❖ LU 1 - 5
❖ Weighting: 30%

Take Home Test

❖ Check PAS for due date
❖ LU 6 - 9
❖ Weighting: 25%

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 OVERVIEW OF LU 6

▪ In addition to the threefold separation of powers, Chapter 9 of

the Constitution establishes six institutions whose role is the
support and strengthening of constitutional democracy.

▪ These institutions are varied and support certain key elements

of the Constitution and its founding values.

▪ In this learning unit, we will look at Chapter 9 Institutions, with

specific focus on the Office of the Public Protector.

▪ Chapter 7 (page 284 - 300)

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CONTENT
Theme 1
Chapter 9 Institutions
LO1: Identify the Chapter 9 Institutions ▪ PM: Chapter 7
and their roles.
LO2: Discuss the operation of the
Chapter 9 Institutions in the
South African Constitutional
Democracy.
LO3: Discuss the independence of the
Chapter 9 Institutions with
reference to relevant case law.
Prescribed Material (PM)
▪ Independent Electoral
Commission v Langeberg
Municipality 2001 (3) SA 925
(CC)
▪ New National Party v
Government of the Republic of
South Africa and Others 1999
(3) SA 191 (CC)
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6
 LO1
IDENTIFY THE CHAPTER 9 INSTITUTIONS AND THEIR ROLES

1. Public Protector
2. South African Human Rights Commission (SAHRC)
3. Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities (CRL Rights Commission)
4. Commission for Gender Equality (CGE)
5. Auditor-General
6. Independent Electoral Commission (IEC)
7. Independent Communications Authority of South Africa (Icasa)

Although section 192 of Chapter Nine of the Constitution requires a broadcast

regulator it does not specifically mandate Icasa. Interpretations vary on
whether Icasa is (or is not) a chapter nine institution

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 Chapter 9 Constitution Institutions
Public Protector Auditor General

SA Human Rights
Commission Electoral Commission
Commission for
Promotion & Protection
of Cultural, Religious &
Linguistic communities
 LO1
IDENTIFY THE CHAPTER 9 INSTITUTIONS AND THEIR ROLES

• Share two roles

o To check government
Checking o To contribute to to
government transformation of SA to a
society where justice

• Independent, and non-judicial

Independent non- • Difficult to fit into the
judicial traditional separation of
institutions powers model

• See section 181

(p285 of tb)
Contributing to • Role is essential to help the
transformation
various organs of state to
adhere to the values and
principles of the new
See page 284 of TB constitutional dispensation

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 LO1
IDENTIFY THE CHAPTER 9 INSTITUTIONS AND THEIR ROLES

• Established by Chapter 9 of the Constitution & designed to support and strengthen

constitutional democracy.

▪ TASK - promote and protect those rights within the Bill of Rights which fall within
their particular area

▪ ROLE - Impartial, independent and subject only to the Constitution & relevant laws
made in terms of the Constitution

▪ POWERS –
o Exercise powers and perform their functions "without fear, favour or prejudice“
o They can make findings and recommendations (PP can even make binding action)
o Don’t have the power to review, or set aside, legislation or Acts of the executive

▪ Enjoy the same level of institutional independence as the judiciary

▪ Constitution guarantees independence, subject only to the Constitution and the law

▪ Accountable to NA

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 LO2
DISCUSS THE OPERATION OF THE CHAPTER 9 INSTITUTIONS
IN THE SOUTH AFRICAN CONSTITUTIONAL DEMOCRACY

▪ National Assembly is responsible for recommending commissioners to

each commission President appoints them

▪ Constitution guarantees them independence from organs of state

▪ Process of appointment is transparent and open to the public

▪ Relevant Commissions can be consulted when respective rights have been violated

▪ They have extensive powers which, in some cases, include:

o searching premises and
o attaching and removing appropriate articles / documents as well as
o to subpoena people to appear before them

▪ Report each year to the National Assembly on their activities and the achievement of
their goals.

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SEC 181 - Establishment and governing principles
(1) The following state institutions strengthen constitutional democracy in the
Republic:
(a) The Public Protector.
(b) The South African Human Rights Commission.
(c) The Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
(2) These institutions are independent, and subject only to the Constitution and the
law, and they must be impartial and must exercise their powers and perform
their functions without fear, favour or prejudice.
(3) Other organs of state, through legislative and other measures, must assist and
protect these institutions to ensure the independence, impartiality, dignity and
effectiveness of these institutions.
(4) No person or organ of state may interfere with the functioning of these
institutions.
(5) These institutions are accountable to the National Assembly, and must report on
their activities and the performance of their functions to the Assembly at least
once a year.
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3
 LO3
DISCUSS THE INDEPENDENCE OF THE CHAPTER 9
INSTITUTIONS WITH REFERENCE TO RELEVANT CASE LAW

• Other organs are required to assist and protect these institutions to ensure such
independence, impartiality, and effectiveness

• No person or organ may interfere with the functioning of these institutions

• Accountable to Parliament, and must report to Parliament on activities

and performances

• But this does not mean that they are subservient to the NA
o This happens where these institutions are viewed as part of the government
instead of as an independent institutions with their unique place in the
separation of powers

• Perform functions in terms of legislation, but are not subject to executive control

• But unlike judiciary, they do not have the power to review and set aside legislation or
the actions of the executive

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 LO3
DISCUSS THE INDEPENDENCE OF THE CHAPTER 9
INSTITUTIONS WITH REFERENCE TO RELEVANT CASE LAW

• Institutions MUST have some degree of financial independence

• Parliament is to provide a reasonable amount to enable the fulfilment of mandates

• See New National Party v Government of SA on financial independence (p289 &290)

o Must have access to funds reasonably required to enable Electoral Commission
to discharge the functions it is obliged to perform under the Constitution and the
Act

• But it does not mean that it can set its own budget

• Administrative independence must also be safeguarded

• Must have ability to maintain operational control over their core business

• Parliament cannot interfere in the day-to-day activities

• Enjoy some level of protection via various legislation

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 LO3
DISCUSS THE INDEPENDENCE OF THE CHAPTER 9
INSTITUTIONS WITH REFERENCE TO RELEVANT CASE LAW

• They deal with appointments and removals (p286)

• But majority party in NA can select candidate that is compliant (PP, and Auditor
General – at least 60% vote, other appointments only need 50% - completely separate
model is used for members of the Electoral Commission- p287)

▪ New National Party-case:

o CC said that require MORE than financial independence
o For these institutions to operate independently, and to fulfil their tasks without
fear, favour or prejudice, the CC said that administrative independence should
also be safeguarded
o They must therefore have (operational) control over those matters directly
connected with their functions under the Constitution relevant legislation

▪ However, critics have said that the appointment process has been skewed in such a
way as to ensure that those appointed to many of the Chapter 9 institutions would
not be overtly critical of the executive or legislature

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 LO3
DISCUSS THE INDEPENDENCE OF THE CHAPTER 9
INSTITUTIONS WITH REFERENCE TO RELEVANT CASE LAW

• Removal of someone in office cannot be done on political grounds.

Only on grounds of misconduct, incapacity or incompetence if found
so by a committee of the NA.

• The CC has confirmed the independence of Chapter 9 institutions

and have provided guidelines for looking at the notion of
independence. In Independent Electoral Commission v
Langberg Municipality (p288), the CC stated that Chapter 9
institutions are organs of state but they are not departments or
administrations in the national sphere and the Cabinet does not have
authority over them. They form part of the state, not part of
government. The are independent FROM government.

• Langberg case indicates that a clear distinction must be drawn

between these institutions and executive authority .
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CONTENT
Theme 2
Public Protector
LO4: Discuss the role and functions of ▪ PM: Chapter 7
the Public Protector with
reference to relevant case law.
LO5: Discuss the efficacy of the
Public Protector’s office with
reference to relevant case law
Prescribed Material (PM)
▪ Economic Freedom Fighters v
Speaker of the National Assembly
2016 (3) SA 580 (CC) [“EFF 1”]
▪ Democratic Alliance v Public
Protector; Council for the
Advancement of the South
African Constitution v Public
Protector [2019] ZAGPPHC 132
(20 May 2019)
▪ President of the Republic of
South Africa and Another v
Public Protector and Others
[2020] 2 All SA 865 (GP) (10 March
2020)
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The Public Protector

https://www.youtube.com/watch?v=BbTrZ7bWaI8

https://www.youtube.com/watch?v=e4BCK09Mrd4
 LO4
DISCUSS THE ROLE AND FUNCTIONS OF THE PUBLIC
PROTECTOR WITH REFERENCE TO RELEVANT CASE LAW

The Public Protector:

❖ Has the power to investigate any conduct of government
❖ Has the power to report on that conduct and take remedial action
❖ Is independent and impartial
❖ Has the power to investigate administration that is improper or prejudicial
❖ Must report to Parliament once a year
❖ Government is required to act on the recommendations, although these
are not binding

Busisiwe Mkhwebane
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 LO4
DISCUSS THE ROLE AND FUNCTIONS OF THE PUBLIC
PROTECTOR WITH REFERENCE TO RELEVANT CASE LAW

The PP:
• In Economic Freedom Fighters v Speaker of the NA (p292): “The PP is one of
the true crusaders and champions of anti corruption and clean governance”

• The Public Protector Act allows for the PP to investigate matters on her own
initiative – this was confirmed by the SCA in Public Protector v Mail & Guardian

• When the PP receives complaints, she is obliged to use the powers vested in her.
She should call on organs of state or refer matter to appropriate authorities to
ensure that the complaint is properly addressed. Investigations should be
conducted comprehensively as possible – DA v PP (p293)

• There can be a possible overlap between PP powers and that of the Hawks (in
allegations of improper enrichment in connection with government affairs) and PP
will then refer matter to the Hawks.

• PP should also investigate where Executive Members have breached the ethics
code.
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 LO4
DISCUSS THE ROLE AND FUNCTIONS OF THE PUBLIC
PROTECTOR WITH REFERENCE TO RELEVANT CASE LAW

The PP:
• Her powers are not unlimited. She cannot investigate private companies (unless
it relates to spending of public money)
• Complaints can only be investigated if reported within 2 years from incident
(unless special circumstances)

• Due to her job she often treads on the toes of powerful politicians who then
question her findings and therefore won’t implement her remedial action.
• The CC eventually confirmed that the remedial action imposed by the PP will
often be binding – Economic Freedom Fighters (p295)

• “If compliance with remedial action taken were optional, then very few culrpits, if
any at all, would allow it to have any effect”.

• Her power to take remedial action is sourced in the Const – and so the question
on whether it is actually binding, is a constitutional question. – so it shall be
binding in some (but not all) cases. – it will depend on the nature of the issue, the
findings and the specific remedial action.
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 LO4
DISCUSS THE ROLE AND FUNCTIONS OF THE PUBLIC
PROTECTOR WITH REFERENCE TO RELEVANT CASE LAW

The PP:
• The power to take remedial action is not unlimited.
• If you disagree, you have to option to take it to court for review and have it set
aside.
• In Minister of Home Affairs v PP (p298) The SCA stated that the PP decisions are
not administrative in nature (so not administrative action) and therefore her
decisions cannot be reviewed in terms of PAJA (Promotion of Administrative
Justice Act)
• Reviews must be conducted on the principle of legality – so she must exercise
her powers and functions lawfully in compliance with the constitutional and
statutory mandates. – so action can only be set aside if they are unlawful, vague
or irrational.
• Rationality determination: DA v PP (p298 -299) – Vrede case.

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 LO4
Discuss the role and functions of the Public Protector with
reference to relevant case law

Question:
The pro-constitutional political group also want to know if the
Public Protector can also be involved in addressing their concern,
in that they want the Public Protector to prescribe remedial action
on this issue by proposing an amendment to the Constitution.
Analyse whether the Public Protector can propose an amendment
to the Constitution as part of its findings and remedial action.

As part of your answer, you must also mention what the impact of
this would be on the doctrine of the separation of powers with
reference to relevant authority
 LO4
Discuss the role and functions of the Public Protector with
reference to relevant case law

• One of the grounds on which the findings and remedial action of the Public
Protector can be set aside is on the grounds that they infringe on the doctrine of the
separation of powers

• In South African Reserve Bank v Public Protector and Others 2017 (6) SA 198 (GP),
(p299) the court held that the Public Protector does not have the power to
investigate the mandate of the Reserve Bank and is therefore not authorised to
impose remedial action in this regard. It further held that the remedial action treaded
“unconstitutionally and irrationally on Parliament’s exclusive authority”.

• The enactment of national legislation is within the exclusive constitutional domain of

Parliament (1) and the Public Protector does not have the power to prescribe to
Parliament how to exercise its discretionary legislative powers.

• The remedial powers of the Public Protector “are derived from the Constitution”,
which means that he or she “operates under the Constitution and not over it”
 Question:
You are the legal advisor to the President. The President has recently
built a new home for himself with taxpayers’ money. The President
spared no expense and even included a 20 person jacuzzi. However,
the Public Protector has found out about his actions and is lodging an
investigation. The President is not sure whether he should be
worried and he approaches you for advice. In your own words, advise
the President on the function, powers and importance of the Public
Protector. [10]​
The Public Protector (PP) has the power to investigate any conduct of the government (1)
or administration that is alleged or suspected to be improper (1) or which results in any
impropriety or prejudice (1). ​
The PP also has the power to report on that conduct and to take appropriate remedial
action (1). It should further be noted that the PP is an independent and impartial
institution (1). ​
The PP reports to the National Assembly at least once a year (1). The effect of this is that
the PP does not only report maladministration (1) but also protects and enforces
constitutional obligations (1) as the government is required to act on the
recommendations made by the PP (1). ​
It should be noted that the recommendations of the PP are not binding (1). ​
The importance of the Public Protector was emphasised by Chief Justice Ngcobo (1), who
pointed out that the role of this institution is critical (1), particularly in countries emerging
from the atrocities of the past (1). ​
In conclusion, the President should be very worried about the investigation by the Public
Prosecutor (1).