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Constitutional Law

By Siyandza Feb 26, 2013 15635 Words
Constitutional law 2013

Greg Lowndes

1. Constitutions and Constitutional Law.

a). What is a Constitution?

* The empowering structures of a government that allows them to govern. * Along with the limitation f the power that they can exercise.
* In totalitarian systems of government a Constitution may place far more emphasis on the empowering of organs of the government rather than on the limits of power.

* Emphasis on the democratic constitutionalism

* Government power is defined and limited.
* A written constitution is the legislation which establishes the state itself. * Allocates power, defines relationships between such institutions and people. * The constitution provides for the protection of rights and freedom of the people. * It embodies the hopes and aspirations of the people.

* S v Makwanyane
* Constitutions seek to articulate the shaped aspirations of a nation, the values which bind its people and which discipline its government and national institutions. * SA Constitution has a ringing rejection of the past which was disgracefully racist, authoritarian, insular and repressive. * There is a commitment to a democratic, universalistic caring and a egalitarian ethos. * Therefore: contrast is stark and dramatic.

* Munro’s factors considered when seeking to identify a countries Constitution. * Designation, document that claims to be a constitution. * Usage, regarded as a Constitution.
* Speciality of enactment
* A higher law status, hierarchically superior.
* Source of authority if the principle organs of government. * Contains rules on specified matters. Contains most important rules about the government.
* Constitutions are concerned with the political authority and the exercise of power in a state. * It determines the location, conferment, distribution, exercise and limitation of authority and power among organs of state. * Procedure and substance.

* A countries Constitution is as product of unique history and its contemporary political situation * Therefore: no pre-ordained stereotype.
* Initially Constitutions had an abstract wide definition { principles and ideas according to which a state is governed} * After the American and French revolutions, a concrete and narrow definition was precipitated. * A written document that limits government power.

b). What is Constitutional Law?

* Constitutional Law is part of public law.
* The rules to which the extent of the legislature and how it works, the rules and the authority that it has * The relationship between the Judiciary, Executive and Legislation. * Along with the individuals relationship with the J E L. * Normative rules that determine:

* Principle organs of state
* Composition, powers and duties of J E L
* Relationships between these organs
* Dispute resolution mechanisms
* Relationship between individuals and state
* Civil liberties, when state acts with power.
* The Constitution protects the civil liberties of the people, their human rights.
* Constitutional law is the cornerstone (foundation) of any legal system. * Its rules identify the law making authorities.
* Bill of Rights is a cornerstone of Democracy in South Africa. * It enshrines the rights of all people in SA.
* It affirms the democratic values of Dignity, Equality and Freedom. * Moreover the state is obliged to respect, protect and fulfill these foundational rights. * This enriches the ambit of the Constitutional Law, which now infiltrates every other branch of law in SA.

* Constitutional Law is a product on an historical process * Therefore: it is intertwined with political and legal theory.
* It has a wider hostilic {unfriendly} sense.
* Constitutional Law as a jurisprudential discipline is inescapably concerned with the historical circumstances. * Prior to 1994, the judiciary did not have the jurisdiction to set aside Acts of Parliament. * Parliament was omnipotent {it had unlimited power}

* Parliamentary Sovergienty marginalised the courts,
* Thus parliament could make any laws that it wished however unreasonable, unjust and unacceptable.

* Now the law is that:

* Section 2 of the Constitution of the Republic South Africa, states explicitly that the Constitution is the supreme law. * And that ay other law that is inconsistent is invalid.
* If a law or conduct is found wanting, courts have the jurisdiction to grant the appropriate relief. * It creates rights and obligations- real law.
* Section 2 of the Constitution: supreme law setting standards. * Justifiable, which is enforceable in a court of law, the law of the Constitution. * The governmental system is created by the Constitution. * It creates the possibility of intra-governmental disputes between the 3 spheres of government.

* The scope of the Constitutional law is highly flexible and when considering Constitutions and the Constitutional law: * The context:
* Historical and social……

c). what do Constitutions usually contain?
* Constitutions determine the location, conferment, distribution, exercise and limitation of the authority and power amongst the state. * There is no model Constitution.

i) Preamble
* Introduction of the Constitution gives the idea Constitution and history. * Contains the guiding principles or values and goals to which the citizens aspire. * Espoused value play a role in the interpretation of the Constitution. * Sets the tone:

* As it connects and re-enforces the “texts to follow”. * And connects all parts of the Constitution.

ii) A chart of the state system
* Which organ of state does what and how it does it, procedural and substantive rules. * Principle of the Constitutional tripartism – J E L
* Creates and empowers the 3 branches of government J E L. * Allocates the roles to each branch and regulates the relationships between the branches. * What the President can and cant do.

* Head of the Executive and Head of State- Jacob Zuma

iii) An amending Provision
* Amending the Constitution is more difficult than amending original legislation. * Change is inevitable and the Constitution is dynamic and not static. * Modifying the ground rules with out changing the whole systems of government. * Thus the system remains legitimate and allows for tweaking to occur. iv) Bill of Rights: civil liberties

* Emphasis has been on setting the boundaries for the exercise of governmental power. * To achieve this aim of limiting the power of the state in relation to individuals. * Bill of Rights sets out a number of fundamental rights that the government should not violate. * 1st generation

* 2nd generation
* 3rd generation.

v) Financial Provisions
* Managing the financial matters of the state for the purpose of effectively furthering the public interest. * Responsible accountable way to raise and distribute money.

The constitution should tell…
* Ultimate authority: Constitution is the highest law
* Role of judiciary: to challenge if anything is incorrect. Judges must enforce the Constitutional law and make informed decisions. * How to resolve conflicts of the law.
* Which rules apply in a crisis: is it necessary to make provisions and who has the power to enforce the law in those times.

d). The Constitution: where and law and politics meet
* SA Constitution is a good example or interplay between law and politics. * The terms of the Constitution were determined by politicians, * But it is a legal instrument in the sense that it is a law that has been duly made by the lawfully constituted Constitutional Assembly. * Because the Constitution decides rights and obligations, it is a legal instrument that is enforceable though the courts.

* History of our Constitution:
* 2 Feb 1990, opening of parliament, unbanning the constitution. * CODESA I +II
* MPNP
* Interim Constitution
* Final Constitution.
* Along with political negotiations and the first democratic negotiations. * Law and politics held hands.
* When the government beings to place its self above the law then the result is anarchy and official lawlessness that brought Zimbabwe to its knees. * A Constitution provides a standard ageist {of discrimination} which to measure the conduct of the government. * The way of determining whether the government is acting in accordance with the law or is in violation of the law, * A constitution is only as effective as the people subject to it are willing to make it.

2. Sources of Constitutional Law
“A source is a formal origin of a rule which confers legal force on the rule of law” Wade a) Statute
* Constitution is most important source, which establishes the states source of power, * Thus to be valid every exercise of state power must have a legal pedigree that can be traced back to the Constitution.

* The Constitution establishes a democratic state based on the Rule of Law (S 1(c)) and the multi-party system of democratic governance to ensure accountability, responsiveness and openness (S1(d)).

* Thus when parliament passes legislation, it must do so in terms of the Constitution. * If not, it is purported and exercise of power will be a nullity.

i) State Liability Act 20 of 1957
* Provides that the state can be sued in the same way as any private individual. * Fundamental as it regulates the relationship between the individual and the state.

ii) Recognition of the Independence of Namibia Act 34 of 1990 * Recognises the sovereignty and the independence of the Republic of Namibia.

iii) Prince Edward Island Act 43 of 1948
* Territory of SA extended to Prince Edward Islands, for the purposes of administration of justice, the islands fall within the Magisterial district of Cape Town.

iv) Judicial Service Commission Act 9 of 1994.
* Statute empowers the Judicial Service Commission; its functions are to make recommendations on judicial appointments. * The power of the commission and the punishment to that of the Judges. * Also to advise the government on matters relating to the judiciary and the administration of justice.

v) Powers, Privileges and Immunities of parliament and provincial legislatives Act 4 of 2004 * Section 57 of the Constitution
* Nation Assembly (lower house of parliament) may determine and control its internal arrangements, proceedings and procedures.

vi) Electoral Act 73 of 1998
* Provides the mechanism for the regulation of elections for NA, provincial legislature and municipal councils. * It provides for the compilation and maintenance of a national voters role. * Sets out who may apply to be registered as a voter.

b). Common Law
* Constitution has either changed or replaced common law rules. * Therefore the importance of common law as a source is relatively unimportant. * Because in SA arbitration of the Constitution 1994 after embraced the written Constitution, all laws must be traced back to the Constitution.

i) Common law itself
* SA’s common law is essentially Roman Dutch, although it has an overlay of English Common Law, in respect of certain areas of law. * The importance of SA Law and British Law.

ii) The Doctrine of Successful Revolution
* A revolutionary regime acquire legality under certain circumstances. * * Mangope v Vander Walt
* The challenge of legitimacy.
The court questioned whether government in control, actually governs effectively is firmly established. * The test applied: is the efficacy (the ability to produce a desired result) or success. * Measured by determining whether the new government was firmly established and whether its administration was effective in that the majority of the people were behaving and conforming to it. * The court found that the regime complied with these requirements and was accordingly lawful.

Rhodesia issued a Unilateral Declaration of Independence from the British, under the Ian Smith Regime in 1965.

iii) Doctrine of necessity – going gets tough the tough gets going * Unusual circumstances that ordinarily unconstitutional, actions may be found to be justifiable. * Comparison of section 37 of the Constitution, state of emergency. * Application of doctrine is SA Constitutional Law.

* May be in conflict with the Doctrine of Necessity.

iv) Doctrine of Parliamentary Sovereignty - VIP
* Parliament was omnipotent- Westminster system
* Parliament may make any law that it pleased.
* No person or institution has the right to override or set aside the legislation of parliament. * Supreme authority.
v) Prerogatives (right or privilege){the inherent legal attributes to the crown which can let out prisoners} * Common law powers, which the British Monarch possesses by virtue of Kingship. * Inherent legal attributes, which are unique to the crown. * Prerogatives are non-statutory attributes of the crown. * Prerogatives consist mainly of executive governmental powers. * President of the Republic of South Africa v Hugo

* A single father had committed a crime; at the time the President was releasing all single mothers, he wanted to be released, as he was a single father. * The court held that the Constitution codified the former prerogative powers exhaustively. * Also that the President has no other powers that those granted or derived from the Constitution. * The power of the President is constrained by the Constitution and not by the common law pertaining to prerogatives. * That were non-statutory.

* Executive governmental powers.
* President can only do and exercise power in chapter 5 of Constitution.

The exercise of these powers, is controlled by the Constitutional Convention.

c) Judicial Decisions (case law) Precedent
* Pre 1994, virtually non-existent.
* Case law had only a conditional status in that it can be easily circumvented by other institutions of the state. * Courts were constrained in their process, (Apartheid, the Delmus 4)

* Now judicial decisions have assumed a great deal of importance in Constitutional Law. * The reason is that the new Constitutional order has increased and enhanced the power of the Judiciary. * Giving it jurisdiction to set aside Acts of Parliament that conflict with the Constitution. * S v Makwanyane – death penalty abolished.

* S v Williams – corporal punishment of minors set aside.
* Role of the Constitutional Court
* Interpret the Constitution
* Adjudication: Bill of Rights
* Resolve disputes between the Spheres of Government
* Decide on Constitutionality of Governmental actions and statutes.

* Pharmaceutical manufactures

d) Custom
* Practices of the community
* To be legally binging a custom must be:
* Generally observed by modern standards
* Certain in its ambit (scope or extent)
* Reasonable by modern standards.
* Not super seeded by some other form of law.
* Therefore ENFORCABLE.
* then custom will become part of common law.

* Constitution seeks to codify all aspects of governmental power. * Therefore: possibility of custom being a source of SA Constitutional Law in the future is non-existent. * Not important, but in some cases it is.

e) Conventions (like a custom, but no authority of law)
* Not enforceable, will take convention into consideration. * Not rules in a sense.
* Practical importance in operations of Constitutional system. * However important to the practical operation of the Constitutional system of a country. * Examples:
* Non-legal rules of Constitution
* Treated as binding by political branches of government. * Not legally enforceable by the courts.

i) Ministerial Responsibility (Regulated by Convention) * Executive has responsibility to its ministers of cabinet. * The whole cabinet has to agree to the decision made, as they must speak out of one mouth. * Accountability of parliament

* Individually responsible to parliament.
* Must take the blame for mal-administration, in-efficiency or corruption, each minister is responsible for what happens in his or her department. * Section 92 of the Constitution Accountability and responsibility.

ii) Loss of confidence
* Motion of non-confidence passed in the executive.
* Executive then resigns
* Section 102- motion of no confidence
* Codified convention.

iii) Assent to legislation
* Legislation passed when president assents/ signs it.
* Has the power to withhold assent.

SA position in relation to Conventions
* SA codified conventions with a twist.
* President can ask to reconsider.

3. Classification of the constitution.

* How do they come in to existence?
* Constitutions usually emerge from a critical historical juncture in the political development of a country. * Colonialism
* Revolution
* Independence
* Hence a break in institutional continuity.

* Constitution of USA is a product of a revolutionary war. * South Africa the end of apartheid.
* Germany after WWII

* Form of a constitution, is that of the countries history * Is crated accordingly to the needs of that society it seeks to regulate * Thus constitutions vary greatly.

* An autochthononous constitution is “home grown” or sprung form natural soil. * Constitution of south Africa can be regarded as autochthononous in substance or character.
* Constitutions are intertwined with social, political and economic developments in a particular society. * Thus Constitutions vary greatly.
* They must be studied in a broader context.
* Therefore there is no pre ordained stereotype of an ideal constitution. * Classified for the sake of convenience.
* Describes certain characteristics.

a) Codified and uncodified
* Codified are the most important rules and principles that have been assembled in a single statute-like document. * No document= uncodified Constitution.
* Uncodifed Constitutions are the UK,
* Statutes, law reports and works of authority.
* Written constitutions are a modern phenomenon.

b) Rigid and Flexible
* If Constitution is easy to amend, therefore flexible.
* If Constitution is hard to amend, therefore rigid.
* Uncodified Constitutions are flexible
* Codified Constitutions are rigid.

* German Basic Law contains provisions that are unalterable, due to the horrors of WWII.

* South African Constitution has an amending provision.
* Section 74, Bills amending the Constitution.
* To amend section one of the Constitution, the founding values, * 75% supporting vote of the National Assembly.
* Along with the supporting vote of in the National Council of Provinces. * At least a 6/9 provinces required to pass a Constitutional amendment. * If it is not section 1 of the Constitution then:

* National Assembly needs a 2/3rds supporting vote and a 6/9 vote from the National Council of Provinces.

c) Unitary and Federal

The centralization and decentralization of governmental power. * A unitary state give central authorities predominant role in the process of government. * Derived from National Legislature.

* Legislative power is concentrated exclusively in one location * UK is a unitary state {Centralized legislative and Executive power }
* A federal state gives autonomy (right to self govern) to sub-national bodies. {Decentralization of legislature and executive power} * Derive power form the Constitution
* There is an entrenched legislative division of power between the central government and the provinces or states. * Unites separate polities (provincial gov.) within and overarching political system to allow each to maintain its original autonomy.

* Prior to 1994, South Africa was unitary.
* Now the government is constituted as national, provincial and local spheres of government. * These spheres are distinctive, independent and interrelated.

d) Parliamentary and Presidential.
* A parliamentary Constitution requires executive to be drawn from members of legislature. * This same political party controls both branches of government. * Westminster system is parliamentary.

* A presidential Constitution (US) established greater separation of powers between legislative and executive. * Precludes president and other executives from being members of the legislature. * USA is a Presidential Constitution.

* South Africa is a Hybrid
* President is elected form the National Assembly among members of the first sitting after the Election. * As elected, President ceases to be a member of the NA and moves to the Executive. * Then the president selects his cabinet from the executive and legislature. * The Deputy president must come from the NA.

* Rest of the cabinet are then selected and only 2 can come from outside the NA (specialists). * Rest of cabinet are apart of the Both NA and Cabinet.

e) Other
* One party {Not democracy} or Multiparty {Ours}
* People have the right to choose which party runs country: vote. * South Africa is a multi-party Constitution.

* Monarchical or Republican

* Uk SA
* In a republican Constitution
* People hold the power.
* Entitled to vote for representatives.
* South Africa is a sovereign Democratic Republic.

4. Key Constitutional concepts

a) Constitutionalism
* If Constitutionalism is simply the exercise of governmental power in obedience to the Constitution. * Then the Nazi regime could be said to have complied with the idea of Constitutionalism. * The Nazis clothed their actions with the cloak of legality. * Similar to the apartheid state.

* The essence of the doctrine of separation of powers is that the power of the state should be defined and limited by law and order to protect the interest of society.

* It upholds the notion of limited government as opposed to arbitrary rule. * The principle of limitation applies in 2 areas:
* 1. Restricting the range of things, which a government can do. * 2. Prescribing the procedures it must follow in doing these things within its competence. * Constitutionalism is a prescriptive (narrow) doctrine, it is not descriptive. * It indicates how state power should be exercised.

* Not how it is exercised in practice.
* Constitutionalism is normative, and it denotes which set of values should be upheld in the governing process. * Its principles provide a standard by with the record of individual government systems can be measured and compared. * Legal rules may prescribe some of the limits of governmental power but political realities complement the legal rules. * Constitutionalism is the idea that government should obtain its powers form a written Constitution. * Also that its powers should be limited to those set out in the Constitution. * Commitment to values such as freedom, dignity and equality.

* The fundamental problem is to establish a government with enough power to govern, but where that power is structured and controlled in such a way as to prevent it being used oppressively.

* A Constitution limits government power in two ways:

* 1. It imposes structural and procedural limitations on power. * 2. Principally through the operation of a Bill of Rights, substantive limitations are imposed.
* A characteristic of a libertarian and egalitarian Constitution is to guarantee that the business of governing is publically accountable. * Every state has a Constitution but only some states are Constitutional. * Therefore the government cannot do what it wants to.

* S v Makwanyane
* The idea that the Constitution state presupposes a system whose operation can be rationally tested against in terms of the law. * Constitutionalism entails moving away from the arbitrary exercise of governmental power. * From culture of authority to culture of justification.

* Power tends to corrupt, and absolute power corrupts absolutely, great men are always bad men- Lord Actom.

b) Separation of Powers.
* The 3 branches
* Separation of functions and functionaries.
* The first principle of Constitutionalism is that the power of the state should be divided between that various branches of government. * The functions of government must be classified as either legislative, executive or judicial. * Also the must be performed by different branches of government. * These functions must be kept separate and performed by different institutions and persons. * Separation of Powers is a condition precedent for liberty.

* The essence of SOP is that a Constitution must provide effective checks and balances in relation to the exercise of state power. * An excessive concentration of powers is an invitation for abuse and maladministration. * Essential features:

* 1. 3 main classes of government functions
* legislative, executive and judicial
* 2. 3 main organs of government in a state.
* legislative, executive and judicial
* 3. To concentrate on one class function is a threat to the SOP.

JEL

* Judiciary Executive Legislature
* Judges and Courts Police and PresidentLaw makers

* The Doctrine of Separation of Powers can never operate in pure form, it is impossible. * E.g. the Judiciary relies on the Executive to enforce its orders (arrest people) * N.B. the system of checks and balances.

* * De Lange v Smuts 1998 (3) SA 785 (cc)
* Insolvency Act.
* De Langer had an insolvent state and the presiding officer from the Master office would not hand over the necessary documents. * De Lange would get sent to prison if the documents were not present and did not show up for court. * As a result he was sent to prison and though that there was a break down in the SOP and JEL. * The only person who could then free him was the president. * The balance in the SOP is very important

* A separation of functions would achieve little if not combined with the appropriate Checks and Balances. * Checks – ensure that the different branches of government control each other. {Internal measures of control between different branches to enhance control} * Balances – serve as a counter weight to the power possessed by other branches. * Hence the purpose of checks and balances is to make the branhes of government accountable to each other. * An example of a check is the power of the judiciary to review executive conduct and laws for compliance with Constitution and the Bill of Rights.

* However South African jurisprudence wants to avoid the diffusing of power so completely that the government is unable to take timely measures in public interest.

* The Constitutional principle of SOP requires that other branches of government refrain form interfering in parliamentary proceedings.

* Courts must be conscious of the vital limits on judicial authority. * Therefore the judiciary should not interfere in processes of other branches of government, unless to do so is mandated by the Constitution.

* South African Association of Personal Injury Lawyers v Heath * Under our Constitution it is the duty of the courts to ensure that the limits to exercise of public power are not transgressed. * Crucial to the discharge of this duty is that the courts be and seen to be independent.

* Role of the Executive in the legislative process.
* The Executive Dominates the legislative sphere of government. * Legislature relies on the Executive, because the Executive makes rules and puts items on the agenda which need to be addressed and the legislature discuss the matters that have been handed down by the executive. The Doctrine of separation of Powers

* The first certification judgment: the interim Constitution, 34 Constitutional principles formed the base of the final Constitution. * Constitutional Court had to check all 34 principles and therefore certify the Constitution. * The court had to deal with the separtion of powers and ensure that the adequate provisions were in place as to ensure that they spheres of government were not transgressed. * In De Langer v Smuts

* If someone is going to be sent to jail, then it is the duty of the judiciary and no one else. * It was therefore unconstitutional that someone from the Executive can sentence someone to a jail term. * The court as a result agreed with De Lange

c) The rule of law
The purpose of the ROL is to: protect the basic rights of citizens by regulating government to act in accordance with clear, general and pronounced rules which are enforced by impartial courts in accordance with fair procedures.

i) Dicey’s Formulation
* The rule of law means that no man is punishable or can be lawfully made to suffer in body or goods except when there is a distinct breach of law.
* ROL is a characteristic of our country.
* Therefore no man is above the law.
* No one may be subject to arbitrary exercise of governmental power. * Every man is subject to the ordinary law of realm and amendable jurisdiction.
* Forum for protection of rights- ordinary court.
* Rule of law is susceptible to abuse

* The Constitution is pervaded by the ROL on the ground that the general principles of the Constitution are the result of judicial decisions.

ii) General Remarks
* The South African government, at the height of apartheid, wqas unable to mount this argument by asserting that the ROL meant no more than “rule of law” * The difficulty with ROL is that it is susceptible to this sort of manipulation as it is vague in formulation.

* In apartheid South Africa, the ROL proved singular and tragically ineffective.

* NB : The purpose of the ROL is to: protect the basic rights of citizens by regulating government to act in accordance with clear, general and pronounced rules which are enforced by impartial courts in accordance with fair procedures.

iii) 4 theories of the Rule of Law.
* 1. Law enforcement theory
* issue whether the government, when it takes action against an individual, was legally authorised to do so. * If affirmative, government has acted in accordance with the ROL. * The weakness is that the achievement of ROL marks the transition from state of anarchy to that of an ordered society. * Hobbes, life in a state of nature would be solitary, poor, nasty, brutish and short. * The law enforcement theory as he lowest common denominator of the ROL. * Widest appeal to governments and the smallest significance for their citizens.

* 2. Procedural justice theory
* Concerned with the form of laws which govern that relationship and the procedures by which the have to be administered. * The 8 principles as the essence of the ROL.

1. Laws should be prospective, open, clear and precise.
2. Laws should be relatively stable and not change too much. 3. Rules that are open, stable clear and general, should be governed by subordinate legislation and orders having legal effect. 4. Independent judiciary.

5. Courts have review powers to ensure the implementation of above principles. 6. Courts should be easily accessible.
7. Principles of natural justice should be observed.
8. Discretion of crime preventing agencies cannot pervert the law.

* Fedsure Life Insurance Ltd v Greater Johannesburg transitional metropolitan council * This model is not guaranteed to avoid injustice, as it avoids issues of substantive justice. * Principles of natural justice include audi et alteram partem.

* 3. Diceyan theory - observe legality.
* Concerned with the justice in the material sense, but only with one aspect of substantive justice. * The protection of civil liberties.
* Therefore upholding the Constitution and civil Justice. * Freedom of speech, persons, movement and association. * Matthews 3 propositions:
1. ROL requires the observance of legality in the form of general and clear pre-announced rules administrated by independent courts, i.e. protection. 2. Citizens should actually enjoy the civil liberties of persons, conscience, speech and movement. 3. Substantive rights (2) are best secured by procedural mechanisms (1).

* Judicial bodies seek to achieve that constraining rules will be subject to adjudication by independent courts. * To ensure that law’s constraints will be applied consistently and fairly. * i.e. protection of civil liberties.

* 4. Substantive justice theory.
* ROL is a dynamic concept which should be employed to safe guard and advance the will of the people and political rights of the individual. * Also it establishes:
* Social
* Economic
* Educational and cultural conditions.
* Hence the individual may achieve his dignity and realise legitimate aspirations. * This is the achievement of justice in the fullest sense.

* According to Lord Bingham the ROL had 8 principles:
* Core principles of the ROL, is that all persons within the state should be bound, by and entitled to the benefit of laws publically and prospectively promulgated and publically administered by the courts.

1. Law must be accessible. So far as possible intelligible, clear and predictable. 2. Questions of legal right and liability should ordinarily be resolved by application of law and not exercise of discretion a. Discretion must be narrowly defined.

3. Laws of the land should apply equally to all unless objective differences require justification differentiation. 4. Law must give adequate protection to fundamental human rights. 5. A legal system must provide affordable means of dispute resolution through the application of law. 6. CORE: public officials must exercise powers reasonably and in good faith for the purpose for which powers were conferred on them and with in the limits of power. 7. Adjudicative powers provide the state must be fair.

8. Compliance with the international law obligations under taken. * ROL depends on understanding between citizens and state, which both sacrifice freedom and power in the interests of protection of rights. * Pharmaceutical Manufatures

* The power of the president must be execised lawfully and in consistence with the provisions of the Constitution. * Therefore the Rule Of Law.

iv) South Africa
* S1 (c), supremacy of the Constitution and the ROL in the founding values. * ROL at the very least entails the principle of legality. * * President of RSA v SARFU
* The principle of legality as a constraint on exercise on public power is confirmed.

* Affordable Medicines Trust v Minister of Health.
* The doctrine of legality, which is an incident of the ROL, is one of the Constitutional controls through which the exercise of public power is regulated by the Constitution. * Thus the legislative and executive are constrained by the principle that they may only exercise power and function that is conferred upon them by law, and no more. * Inter vices.

* Pharmaceutical Manufactures
* It is a requirement of the ROL that the exercise of public power by Branches of Government not to be arbitrary. * The requirement of rationality does not give a carte blanche to substitute its opinion of those of power. * The court cannot interfere with a decision, simply because it disagrees with it.

* The ROL requires that the rules of natural justice be upheld and that included audi et alteram partem.

* Masethla v President of RSA
* President appointed the Minister of Safety and Serurity as the head of a commission of enquiry. * As a result the President no lnger trusted him and fired him. * He claimed that this was an aribirary exercise of power and that he was fired with out reason. * Yet as the President appointed him, he has the power to fire him at his own will, and this was done in line with the rights of the President. * Majority judgement:

* The ROL requires that the rules of natural justice be upheld and that included audi et alteram partem. * Minority
* ROL is a fundamental fairness, which includes procedural fairness and the right to be heard.
* President of RSA v Modderkilp Boerdery (Pty) Ltd
* ROL requires the state to take reasonable steps to ensure that the court orders are carried out and the ROL is upheld. * ROL is a fundamental value to our Bill of Rights, Constitution and ultimately our society.

Legality requires the government, the legislators and the courts to act in accordance with the legal principles and rules that apply to them. * CASES:
* Fedsure Life Insurance Ltd v Greater Johannesburg transport metropolitan council * Joburg was divided into 4 a structure of North South East West, thus cross subsidization. * Each division was to receive tax.

* Taxes that were received were not enough in the poorer areas. * They claimed that the ROL was in contravention.
* The court said that the power to level taxes is a Constitution power. * Original legislative power was derived.
* The government may only act in accordance to powers conferred through legal principles. * Legality, procedural justice theory.
* Therefore ROL entails at least the idea of legality.

* President of RSA v SARFU
* The president appointed a committee of enquiry.
* The power of the president to appoint a commission of enquiry, under section 84 (2)(f) * Louie Layt, the president ad minister of sport did not exercise his powers properly. * Exercise of this power is political not administrative. * Therefore could not be challenged as violation of right of administrative justice. * Other constraints exist- the principle of legality must be adhered to (implicit in the Constitution). * 1st Constitution and 2nd ROL

* Court contradictory compared to NNP v Government of RSA.

* New National Party v Government of RSA
* The requirement to vote, you needed a bar-coded ID book. * No barcode in ID book = no vote.
* ROL sets a general requirement that parliament must exercise their powers rationally. * ROL sets a general requirement that parliament must exercise their powers rationally. * Rationality means non-arbitrariness and rational connection between action and legitimate purpose of action. * Rationality is the first constraint, Bill of Rights is the Second

* Chief Lesapo v North West Agricultural Bank.
* Applicant applied for a loan to buy land to farm
* As a result he could not repay the installments on the loan and the property was repossessed. * The contract that was entered into, denies the access to court, which is fundamental in the ROL. * ROL sets out the fundamental basis of the Constitution. * Provisions of BOR are the extensions of general principles implied by the ROL. * The right to access court is a deeper manifestation of a deeper principle. * ROL is more than a value neutral to the principles of legality. * ROL procedural and substantive elements.

* Respect for the rights of the individual.
* Pharmaceutical Manufactures
* Power of the president to bring legislation in to operation and the administration of the action. * Yet constraints exist.
* Power must be exercise lawfully and in consistence with the provisions of Constitution. * Therefore in consistence with the ROL.
* Application of the ROL; non-arbitrariness in exercise of power and a rational connection between power exercised and the purpose for which the power was given. * Therefore the ROL: norms of such generality that it is not applied directly, but only after norms of greater specifity have been applied.

* Affordable Medicines Trust v Minister of Health
* 1st Rationality, 2nd Constitution.
* Director General could exercise his discretion as to which doctor could dispense at practice. * The doctor did not have to write out a script, he/she could just dispense medicine. * This was said to have breached the doctrine of the Separation of Powers. * This as a result is not allowed in the ROL, the exercise of power should be precise. * This is because there should be safe access to medicine. * The power of the Director General as to the extent of is power was broad and vague. * The court found that the Director General needed to ascertain the scope of his power. * The Doctrine of Vagueness was bought in to play.

* Legality, ultra vines confirmed.
* When power is exercised it has to be done inside the law and not outside of the law.

d) Parliamentary Sovereignty
* The Westminster system has a two pillar system
* ROL and Parliamentary sovereignty

* The History of Parliamentary Sovereignty
* Parliamentary Sovereignty is the result of conflict between the Monarch and Parliament. * Parliament prevailed.
* Monarch has a symbolic role today.

* Parliament has the right to make or unmake any law.

* Moreover, nobody or person has the right to override or set aside the legislation of parliament. * It cannot be invalidated by the courts.
* Therefore parliament is omnipotent.
* Thus they are the highest constitutional authority, and are subject to NO scrutiny. * The role of the courts is that they cannot question substance. * A conflict between the ROL and PS in the Westminster System? * Justification of Parliamentary Sovereignty

* It is tolerated because it represents the people.
* If people vote for legislation, then the legislation will speak the will of the people.
* In SA pre 1994.
* The system of Parliamentary Sovereignty was subject to abuse. * This allowed for grossly unjust laws to be made.
* This was the result of not representing the will of the people.

e) Constitution Supremacy
* The supreme power in the country.
* As the Constitution is viewed as higher law, all branches of government are bound to the rules and regulations that are in line with the Constitution. * Therefore any law that is inconsistent with the Constitution, is then invalid. * Section 1 (c) supremacy of the Constitution.

* Section 2, Constitution is supreme.
* Again, any law that is made that is inconsistent is declared invalid.

f) Judicial Review.
* Judicial role of enforcing and upholding the provisions of the supreme Constitution. * Based on the idea that the judicial arm of government regulates the power that the other braches, hold. * Ubi ius, ibi remidium- where there is a right, there is a resolution. * Parliamentary sovereignty limits the power of the courts to review exercises of power of the legislature. * Courts cannot set aside Acts of parliament that are unreasonable or infringe on fundamental rights. * Iudices est ius dicere sed non dare ius dicere non farace * Judges speak the law, they do not create it.

* * Marbury v Madison {US CASE}
* Executive officer was not for filing his duty.
* Court assumed that the role of the executive was to act as protectors of the US Constitution. * Courts could not invalidate the actions.
* Therefore courts can assert their own authority to protect the Constitution. * i.e. enforce the Constitution.
* Therefore the doctrine of Judicial review of legislation.

* The power of judicial review is a central component modern Constitutionalism. * Involves the intersection of the power of the legislature, executive and the judiciary.
* Form 1910 – 1994, SA’s Constitution was underpinned by Parliamentary Sovereignty. * Therefore courts could not review primary legislation.
* * TAC
* Constitution Court emphasises the importance of judicial review. * Constitutional supremacy is defined by independent courts. * The primary duty of the courts is to the Constitution and the law, which they must apply impartially and without fear favour of prejudice.

g) The Counter-Majoritarian Dilemma
* Legislature is elected, therefore representatives of the people. * Would be considered to articulate the will of the people.
* People have to be involved in the law making process.

* Courts can never be a mere mouth piece of public opinion.

* They cannot merely defer public opinion.

* Judges are not elected.
* They are appointed by the president.
* They can exercise the power of judicial review and set aside law passed by a democratic parliament if it conflicts with the Constitution. * Judges are members of the elite, as they have had enormous experience. * Defying democracy by putting power in the hands of the elite? * Judges have the power to enforce the law, even though they were appointed by the President. * The democratic Constitution has vested in the courts the role of guardian or watch dog of the Constitution.

* Judicial review in a democratic system, is bound to create tension. * The tension is managed by how the courts go about their business and decisions. * To avoid infringing on the Doctrine of Separation of Powers, and hence exercise their power of judicial review properly, courts must give a measure of deference to the legislature.

* Does the Counter-Majoritain Dilemma matter?
* Can the Counter-Majoritian Dilemma be managed?
* Interpretation of the Constitution not essentially undemocratic, so we interpret the Constitution by: * Stay with the original text- from 1996-…
* Bear in mind what people say, you cannot divorce yourself form what people say. * Have to listen to what the people say, so they can create subjectivity.
* Therefore courts do not determine whether legislation has made wise policy choices. * The courts are required to decide whether parliament has acted Constitutionally. * S v Makwanyane

* The role of the court is not to second-guess the wisdom of policy choices that are made by legislators.

*

* Courts have the power to review the decisions of a democratic parliament. * Therefore the idea that democracy is not a complete safe guard for individuals and minorities. * As the majority may use its power oppressively.

* S v Makwanyane
* Most South Africans were in favour of the capital punishment. * Thus they did not regard the death penalty as cruel or inhumane. * Chaskalson J, held:
* “Public opinion may have some relevance to the enquiry it is no substitute for the duty to the vested in the courts to interpret the Constitution” * If public opinion were to deceive there would be no need for Constitutional adjudication. * The very reason for establishing the new legal order was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

*

* West Virginia State Board of Education v Barnette
* The purpose of the Bill of Rights, was to place them beyond the reach of majorities and officials. * Democracy does not always safeguard the rights of individuals. * Certain basic human rights not to be subject to the outcome of elections. * The values entrenched in Constitution as framework for interpretation, yet are consideration to freedom precedent and compositions of rights are vital.

*

* TAC
* The court is obliged to hold that the state has failed to give effect to its Constitutional obligations.

5. Civil Liberties – Building Blocks of the Constitution.

a) Fundamental Rights
* Fundamental rights that are more important than others. * The theory of natural law, higher law, is that you ought to protect individuals. * The existence of a higher standard warrants rights of the individual. * Government is more powerful than the individual, as they create laws. * Therefore special safe guards are needed for the rights of individuals.

* Underlying Principles of the BOR.
* Universal inheritance.
* All humans have rights, as they are humans.
* Inalienability
* One is not in a position to allow unjust laws on any rights. * Rule of Law
* Rights have to be protected by law, and if any wrong amended by adjudication.

* Normative Bill of Rights – only as a guide line
* How government ought to behave.
* Provides no legal sanction if it does not.
* Effectiveness depends on the political branch of Government.
* Justiciable Bill of Rights – enforceable by law.
* Allows a non-political institution, the judiciary to invalidate Acts of Government, which are in contravention of its provisions. * South Africa
* 3 broad types of fundamental rights have been recognized by the law over time. * Galtung’s Classification.

* Civil liberties

* First generation rights known as Blue rights
* Trust that the government will protect us, in society.
* Civil and political rights (vote, freedom of speech)
* Strongly individualistic (My rights)
* Protected in a negative way.
* Right to life, freedom, equality.
* Acts as a protective shield against unlawful state interference: * Limits state power and promotes democracy.
* Imposes a duty on state to refrain from oppressive behavior.
* Second generation rights known as Red rights
* Socio-economic rights
* Protected in positive way
* Require state to do something.
* Imposes obligation on the state to do as much as possible to secure a basic set of social goods. * They have to act if they have the means to do so, yet they cannot do anything if they don not. * Building RDP houses.

* Third generation rights known as Green rights.
* Collective rights, group rights.
* Protected in a positive way.
* Require state to do something.
* Protection and preservation of the planet.

* The theory of the protection of fundamental rights is based on 3 underlying principles. * 1. Universal inherence:
* Every Human has certain rights.
* Not conferred, earned or acquired.
* Inherited by virtue of being human.
* 2. Inalienability:
* Cannot be deprived of rights.
* 3. Rule of Law
* where rights are in conflict.
* Resolved with just laws with just Proceedures.

* The enforcement and protection of human rights
* HR’s are not absolute in their functioning, they may be limited.
* USA has a one stage approach (interpretation and limitation) * Define a fundamental right with its limits.

* South Africa followed Canada.
* The two stage approach
* 1st the court is required to determine whether a fuindamental right has bee infringed. * Courts therefore interpret fundamental rights purposively and generously * If infringed, then move to the next stage.

* 2nd question whether such law is reasonable and justifiable in the tyoe of society to which we aspire to? * Seen in S v Makwanyane

* Section 36(1) Limitation of the Bill of Rights
* Must be reasonable and justifiable.

b) International Protection of Human Rights
* Principle of national sovereignty which reserves to each sovereign state the exclusive right to take any action it thinks fit. * Provided that it does not interfere with the rights of other states and is not prohibited by international law.

United nations.
* Formed after WWII.

* The development of law
* Law of small communities, nation states, interaction between them. * The law of seas subsequently became very important.

* Underlying principles of international law.
* Sovereignty of states.
* Certain things states cannot dictate to each other. * Interaction is ok if regard each other as sovereign.
* The basis of international law is consensus.
* Consensus depends on interaction
* There is no international law to enforce international law. * It is dependant on the good will of the states with each other.
* Sources of international law:
* The treaties that are entered into are binding, however there is no one with the “teeth” to enforce this. * Customary international law

* WWII
* Holocaust and other human rights abuses.
* Nuremburg trails tried the leaders of the Nazi Government. * Were tried by allied judges in common law.
* They were called the Tokyo Trials.
* Basis for prosecution was that the leader to set a higher standard of punishment. * Needs to be a written document.
* Therefore try the Nazis for atrocities in HR.
* In reaction, positivist law, promulgated (Written) by someone. * In can only be a crime if there is written law.
* Nulla poena sine lege, no crime without law.
* Thus laws had somewhat a retrospective effect.
* Therefore this created international Human rights law. * Nuremburg trials had a major impact on international law. * The main significance is that the leaders and government officials are no longer able to claim immunity from prosecution for egregious (shocking) human rights violations.

United nations
* UN charter established the UN and the Charter of the Human Rights * No binding obligation.
* Vagueness eroded.
* There was no enforcement mechanism.
* It therefore operates on a concept of Sovereignty.
* It is also very difficult to reach an international consensus.
* 1948, Universal Declaration on Human Rights.
* 1st and 2nd generation human rights.
* 1st document to document Human Rights
* it’s a declaration, a statement of intent.
* What they should do.
* It is not binding, as it is not a treaty.
* Sets a standard and tone.
* Influenced drafting of treaties and rights.

* Commission of Human Rights had no success in drafting a single treaty as international a Bill of Rights, due to the ColdWar. * A treaty is a contractual undertaking of one state to 1 or many states. * Therefore they are bound to a certain standard that is set out. * Once drafted the state signs it.

* Therefore the state gives indication.
* For the treaty to be enforceable it needs gratification. * The time between signing the treaty and the gratification, legislation must be passed so the said state is bound to it.
* Apartheid South Africa, they were supported by the western states, yet after the Sharpeville Massacre they lost all support. * The UN told the Apartheid South Africa that it was unacceptable. * This forced the UN member states to take a stance.

* Therefore sovereignty is important but not as important as Human Rights, the choice was made for Human rights.

International Covenant on Civil and Political Rights.
* First generation rights
* Protects the right to life, does not seek to out law the death penalty. * Prohibits slavery and torture, promotes safety and security, along with freedom, whilst outlawing discrimination. * It is bounding on members states of the UN.

* UN is a body that facilitates negotiations.
* The decisions are enforced by the Human Rights Committee. * Consists of 18 experts.
* Yet the committee cannot punish, as there is no international Government.

International Covenant on Economic, Social and Cultural Rights of 1976 * Second generation rights
* Enshrines rights to social security, education.
* Right to adequate housing, security, health, education. * State must take reasonable legislative steps within its avalible resources to achieve the progressive realization of this right. * Therefore positive obligation on member states.

* South Africa has signed, yet they have not ratified, as they are still fixing housing, education and employment.

c) Regional Protection of Human Rights
Europe
* European convention on Human Rights
* Mainly 1st generation.

* European court for Human Rights (ECHR)- the last stop internationally. * Binding orders can be enforced.
* Committee of Ministers of the council of Europe.
* They supervise the execution of binding judgments made by the ECHR.

America
* American Declaration of the Rights and Duties of Man 1948. * American convention of Human Rights.
* Mainly first generation rights,
* Enforced by the:
* Inter-American Commission of HR.
* Inter-American Court of HR.

Africa – the struggle against colonialism.
* African charter on Human and Peoples Rights 1986
* Charter contains a distinct Africa Feel.
* 1st, 2nd, 3rd generation rights.

* African Commission on Human and Peoples rights
* The supervising body, 11 members who meet 2 times a year for 2 weeks, as this is a short time they are very inefficient. * The task is too big to make an advancement.
* Ensure the promotion and protection of HR.
* Inter-state complaints.
* They investigate massive violations in HR.

* African court on Human and Peoples Rights.
* Lessens the Burden of the Commission.
* The complete task for the commission
* This is still being set up since 2004.
* Court has not yet heard a case.

* International Criminal Court
* Crimes against humanity such as genocide.
* Not established yet.
* SA section 39 (1) the binding obligation.

6. Major Constitutional Matters
Relevance
* Legal revolution in South Africa, the end of apartheid. * Drafters of the Constitution had the advantage of drawing on the experience of other states. * Benefit of experience and philosophy of other jurisdictions * Adapted and shaped to serve the needs of SA

* Autochthonous, homegrown, suited the context.

a) Westminster Model
* UK and many formal colonies.
* Characteristics: unwritten Character- not all Westminster Constitutions are uncodified.

Unwritten character
* Constitution is not contained in one written document.

Evolutionary development
* Rules over time developed gradually.
* Incremental and slow, responding to the needs of society.

Parliamentary sovereignty
* Parliament is omnipotent.
* Buck stops with parliament.
* There is no higher authority
* The defining characteristic.

Constitutional Monarchy
* The role of the Monarch is limited to a symbolic role. * Represents the entire state of the UK.
* They hold a ceremonial role.
* Symbol of national loyalty and unity.

Parliamentary Government
* Head executive id drawn from legislature.
* Rationale is that it leads to stable government.
* Also accountability
* Executive must retain confidence of legislature.

Rule of Law
* Lord Bingham
* ROL keeps Parliamentary Sovereignty in tact
* Legislature represents the people.

Judicial independance
* Before they had no independence, now the judiciary is regarded as a separate and independent branch of government.

Representative Government
* Elections without all members of society, Westminster system cannot work. * Candidate with most votes wins seat in Parliament.
* Constituency- vote for a person who is put forward.

b) American model
* Never again, in the historical context, a break from the past.
* Separation of powers.

* Bill of Rights- Written

* Judicial Review

* Constitutional Supremacy – status of a higher law and enforced by judicial review.

* Federal division of power
* Government is divided between national and regional government. * Divided between 50 states
* Federal government is central to everything.

c) Social State Model
* Germany
* Never again, WWII, the disagreement of the inclusion of the 1st and 2nd generation rights. * State should take steps to actively promote the public welfare.
* The focus here is on the:
* Rechtsstaat and the Sozialstaat
* Constitutional and Social state
* Sozialstaat
* Article 20 (1) establishes the German Federal Republic as a democratic and social state. * A “shielding” HR id not enough.
* State must promote the well being pro-actively.
* Duty on legislature and administration to promote public welfare. * The idea had not yet lead to invalidation of governmental action/inaction.
* Rechtsstaat
* Article 20(3) of German Basic Law establishes the German state as a Rechtsstaat. * i.e. in a Constitutional state
* limitation on legislation and adminstration to promote public welfare, thus more than Rule Of Law. * Limitation on delegation of Policy making authority

* Proportionality, where limitation of fundamental rights authorised by legislation, the limitation must be reasonable. * Limitation must be adopted for legitimate purpose.
* Must be necessary for the purpose
* Must not impose an excessive burden.
* Social state principle understood to impose duty on legislative and administrators to promote public welfare. * Prohibit unsocial state action.

d) Conclusion
* Up to 1994, modeled upon Westminster system
* 1994 clear break from past.
* Includes:
* ROL from Westminster.
* Supremacy of the Constitution, justiciable BOR, SOP and judicial review from the US. * Like Germany, born in the shadow of the past, socie-economic well being of a person is as important as political rights. * Co-operative government form German social state.

* Therefore the Constitution offers a vision of the Future!

B. The South African Constitution

1. Founding Provisions and Nature of the South African State.

a) Preamble
* Introduction.
* We the people…
* Inclusive is everyone.
S v Mhlungu
* Preamble should not be dismissed as a mere aspirational and throat cleaning exercise. * It connects up, reinforces and underlies the whole text that follows it. * It helps to establish the basic design of the Constitution and indicates the fundamental principles.

The 4 themes in the Preamble
* To heal divisions of the past and establish a society based on democratic values, HR and social justice. * To establish new society based on the will of the people- future. * To improve the equality of life of all citizens – socio-economic justice. * Political theme aimed at ensuring political maturity.

* Preamble then ends with a pray in 7 languages.
* This is the recognition of the Multi-lingualism.
* Religious connotation in secular state.

* Therefore the preamble does not confer rights, but guides interpretation.

b) Section 1
* Republic of South Africa is one, sovereign democratic state. * The founding values:
* Clearly embody idea of Constitutionalism.
* Based on human dignity, freedom and equality
* The reoccurring theme throughout the Constitution. * De Lange v Smuts
* Essential to consider our Constitutional history prior to new legal order Decisive break with past.

UDM v President of RSA
* Founding values set positive standards with which all law must comply in order to be valid. * Section 1 may be amended with support of at least 75% of the National Assembly and 6/9 Provinces in the National Council of Provinces. * The issue of crossing the floor, to another party in order to make any sort of change is not allowed. Fedsure life Assurance ltd v Greater Johannesburg Transitional Metropolitan Council * Central to the Constitution that legislation and executive are constrained with in intra vines. Section 2

* Supremacy of the Constitution
* The paradigm shift in Jurisprudential thinking.
Section 3
* Citizenship
* Importance in Historical context.
Section 4
* Anthem
* Provided by proclamation, can only be changed by the President * It plays a symbolic and Ideological Role.
Section 5
* Flag
* Schedule 1, very important included in the Constitution * Changed by Constitutional Amendment.
* It plays a symbolic and Ideological Role.
Section 6
* Languages
* Multi-lingualism, official languages and other languages used. * Practicality

* Yet territory is not mentioned, although the provinces are set out. * Thus the Constitution is autochthonous.

* Union vs Federal
* Union
* National decides and Provincial follow, as they have limited power, derived from central Government. * Federal
* States/provinces have original Constitutional power and central Government is weakened. * States/Provinces can do what it wants, within its power and central has to respect the decision, and thus govern them. 2. Co-operative Government

Chapter 3

Negotiated revolution
* The 34 Constitutional principles made up the blue print for the final Constitution. * Principle 16: NB NB NB NB NB !!!!!!!!
* The division of governmental power, between national, provincial and local levels. * As a result government is closer to the people.

* Principle 17:
* A democratic government at all levels
* Therefore Accountable to the people.

* Principle 19:
* Provision for concurrent and exclusive competencies for provincial and national governments.
* Co-operative government emphasizes and facilitates inter-governmental co-operation and co-ordination. * Co-operative government is premised largely on the German Constitution.
* The principles of co-operative government require the different spheres of government to co-operate with each other within each of these spheres as well as across spheres.

* Co-operative government emphasizes pragmatic considerations. * It enables lower spheres of government to influence the policy that they will have to execute.
* Mechanism of inter-governmental relationships is intended to reduce political tension between central government and provinces and between provinces themselves.

* Designed to promote co-operative federalism
* Different levels of government share functions and responsibilities.
* The spheres of government have to be:
* Distinctive
* Interdependent
* Interrelated in “one sovereign democratic” Republic

National

Provincial

Local

* This stands in contrast to competitive Federalism
* SA model – harmony and co-operation
* In spirit of political transformation.
* Based on the German Example
* Relative autonomy of different spheres acknowledged
* Involvement of all spheres in National legislative process – NCOP * Not centralization or decentralization but a sharing of responsibilities.

Schedule 4
* Parts A and B.
* National and Provincial have concurrent legislative competences. * They can make laws about the same things
* If conflict arises, then section 146(2)+(3) are applicable and inform on when National legislature will prevail. * If section 146 (2)+(3) are absent then Provincial will trump National as in terms of section 146 (5).

Schedule 5
* Parts A and B – only things that Province may legislate on. * A = exclusive provincial legislative competences = the Consumer Protection Act. * Liquor licensing- Johannesburg and EC, can buy booze on a Sunday * Co-operative government should lead to stable government since all stakeholders are given opportunity to participate in decision making.

* B = inter-governmental relationships should contribute to a reduction in political tension and uncertainty. * This is intended to ensure that no sphere of local or provincial government is marginalized. * Therefore this brings the government closer to the people. * You don’t have to go the National director, as you can just go to the local municipality and have your problem sorted out. * Therefore it is much more efficient.

* However this could cause the system to clutter and as a result be slowed. * * City of Johannesburg v Municipality Case
* JHB municipality, the provincial ordinate that provided for the zoning of areas with in towns. * The authorities were placed with the duty of zoning areas, along with development facilitation. * ACT of 1995, yet this had created tribunals (provincial) to over see the zoning. * The conflict arose where JHB had strict requirements and people went to the tribunals with their complaints. * The City of Johannesburg challenged the validity of the Tribunals. * They turned to Schedule 4+5, and asked the question that is: what does municipal planning mean? * The interpret schedule 4+5…

* Para 40-60.

Thus there needs to be a compromise.

* Constitutionality of the Liquor Bill
* Government power is distributed between National, Provincial and local. * Schedules 4 +5 are fundamental areas.
* The ambit of the provinces’ exclusive powers must be determined in the light of that vision. * Schedule 5 competencies are only for its Province.
* Thus when a matter is required, inter-provincially, as opposed to intra-provincially that national government has been accorded the necessary power.

Principles of Co-operative Government: Section 41
* Section 41 (1)(g)
* All spheres of government to exercise powers and perform functions in a manner that does not encroach on geographical, functional integrity of the other spheres. * Therefore this refers to the way in which powers are exercised. * How power should be exercised rather how the power exists. *

* Premier of the Western Cape v President of RSA
* One sphere of Government should not exercise powers in a way that undermines other spheres or prevent them form functioning effectively.

* Co-operative Government id dependant on good faith and willingness of the people involved in different spheres of Government. * Co-operative government should lead to a stable government since all stake holders are given an opportunity to participate. * Does this then happen?

* Capacity at provincial and local government levels are problematic * This in practice would work if decisions were made carefully. * In theory the spheres of government should perform and exercise their functions in a manner that does not encroach on the geographical, functional/institutional integrity of another sphere. * This refers to the way in which power is power is exercised. * One sphere of government should not exercise power in a way that the undermines the other spheres and as a result which prevents them from functioning properly.

3. National legislature
Introduction
* Parliament is the constituted authority of representatives making up the institution. * Legislative authority in national sphere vested in parliament.

Composition
* Bi-cameral Parliament
* National Assembly -NA
* National Council of Provinces – NCOP
* Represent different interests
* Serve as checks on each other.

NA
* Democratically enacted lower house
* National common voters role.
* Accordingly to electoral system that generally accords with proportional representation. * Must ensure government by the people.

* Function of choosing legislation, providing a national forum for issues, passing legislation and scrutinizing, criticizing and over seeing executive conduct.

* 350-400 Members
* Must be eligible to serve as MP’s
* Registered to vote
* Excluded if work in public service- judge
* Excluded if unrehabilitated insolvent
* Excluded if of an unsound mind.
* Excluded if convicted for an offence for more that 5 years. * No more floor crossing – UDM case

* Session, from election to election.
* President cannot dissolve NA, has no power to do so.
* Only NA can dissolve its self.
* NA has to hand in a resolution to dissolve after 3 years. * Vacancy office of president for 30 days.
* No new president elected.
* Dissolved by acting president
* Therefore discussion of NA
The first sitting
* Over seen by a Judge
* Speaker and deputy elected
* Speaker is the symbol of the NA.
* Representative of NA, spokesperson.
* Interprets and determines rules of Parliamentary Conduct. * Role is an ongoing process, day to day.
* Chair person.
* Can be removed by simple majority.
* Distance himself from own party.

* Portfolio Committees
* Play important role.
* Work of parliament done with large extent in portfolio committees. * To do the task they have to be broken down into manageable chunks. * Safety, security, health and education.

NCOP (National Council of Provinces)
* They represent the Provinces at a National level
* Upper house
* 9 provincial delegations consisting of 10 people each. * 6 permanent delegates, nominated by provincial legislature. * 4 special delegates, premier and 3 specialists in particular area discussed. * Special delegates bring executive view to national process.

* What is the Point?
* Secure provincial interests.

* NCOP is a perpetual body.
* It cannot be dissolved.
* It is separate from the NA.
* The Constuency is different

* They elect a chairman.
* 1 deputy from permanent delegates.
* 2nd deputy stands form one year and then is replaced by someone else from another province. * Thus the rotation for each province.
* Thus they manage the day-to-day affairs of the provinces
* Select committees are formed.
* The smaller groups of the NCOP
* Health, education and security.

* Joint committee, the NA and NCOP
* Discuss the issue at hand in line with the Constitution.

Functions of Parliament NB
* Elect officials
* President, when elected, ceases to be a member of the NA and moved to the Executive. * The President, retains the power to address Parliament. * Yet he is not a member, yet is held accountable for the actions of Parliament.

* They represent citizens.
* It is a forum for debate.
* They act in the interest of the public
* Also must be in contact with the Public.
* Whilst in contact with the public, the find out their issues and go back and discuss what to do and debate on the issues that concern the public. * The problem with the proportional government, is that:

* The public do not elect representatives, they are elected.
* They over see the executive
* And hold accountable
* They can scrutinize
* They are there to hold a stable government.
* If they are not taken seriously then they will under mine government and the system.
* They make laws that aid the people and the country and fill in any gaps in the law.

* Thus all of the above must be done in accordance with the Constitution.

Making laws
* Any Bill can be passed in the NA.
* But only cabinet minister, deputy minister or member of the assembly may introduce a Bill. * Only the Cabinet Minister responsible for financial matters may introduce a new money bill, or a Bill concerning the allocations of Revenue.

* A BILLOD PROPOSED LEGISLATION!

* NA must refer the bill to the NCOP if required to.
* The NCOP must always refer a bill to the NA.

* They therefore have different roles.

* Constitutional amendments – section 74
* CASES: People of Matatiele and Poverty alleviation network. * At least 30 days before a bill is introduced that is to amend the Constitution, the person introducing the bill must: * Public the proposed amendment for public comment via the government gazette. * Submit to the provincial legislators to elicit their views. * Submit to the NCOP for public debate.

*

* Matatiele 1:
* The provincial boundaries, cross boundaries allowed, yet the lines of the provinces were very vague * A political decision was to be put forward, to abolish cross boundaries. * Thus they would make strict provincial boundary lines and they would be adhered to. * The people of Matatiele did not want to be part of the EC and wanted to be part of KZN. * They facilitated public debate in the matter at hand.

* 6/9 provinces had to support this matter as is required for Constitutional amendment. * Yet in KZN, there was no real public involvement.

* Possible Essay question!
* The people had to be given a reasonable opportunity to debate the matter and show interest. * This allows for legitimacy to be retained.

* In the case of Poverty Alleviation network, they found that the people of Matatiele were unsuccessful, even though they had several attempts.

* Bills that do not affect Provinces:
* Role of the NCOP to vote as individual.
* Bills then are referred to the President for ascension. * Section 75, bills not affecting Provinces.
* NA passes Bill.
* Bill must have been referred to the NCOP- each member can express his/her view by way of voting. * Council then must:
* Pass the Bill
* Pass the Bill with any proposed amendments.
* Or thus reject the Bill.
* If council passes the Bill, submit to the President for assent. * If council proposes amendments or rejects the Bill, NA must reconsider Bill, they must the decide to pass without amendments or reject the Bill. * If passed then President assents.

* Bills that affect the Provinces, they have to do what was mentioned above: * Public involvement, express concern and support…
* Section 76, Bills affecting Provinces – each province gets one vote. * NA pass Bill.
* Bill must be referred to the NCOP.
* Council must:
* Pass the Bill, therefore submit to President to assent. * Pass an amendment Bill, the bill referred to Assembly, if passed, then submit to president to assent. * Reject Bill or Assembly refuses to pass, Bill must then be referred to the Mediation Committee * NA + NCOP= Committee.

* Mediation Committee makes decision in 30 days
* If not decided then the Bill lapses.
* If council rejects it, they need a 2/3rds majority in NA to submit to President. * Ultimately the Constitution acknowledges the NA as superior authority.

Thus
* Bills affecting Provinecs
* If Bill gets passed
* NA NCOP Assembly President
* NA NCOP Council President *

* Section 77, Money Bills
* Any money including Bills.
* Not introduced to the NCOP, only the NA
* Can only be introduced by the minister of Finance.
* Doctors for life v Speaker of National Assembly
* Process and public involvement
* NA and NCOP must involve the public.
* Done through a road show, where they ask for views.
* Involved the termination of pregnancy Act not compliant with Constitution. * How public must be involved in the process.
* Measure is, was the opportunity given to the public reasonable? * Thus democracy doesn’t end with vote.

* They were challenging the Constitutionality of the Act.

* 50.1% for the Act to get passed.
* 1/3rd against it.
* The Act was referred to the Constitution Court to validate it. * Therefore the Constitution is the safe guard.

* Schedule 4 with the concurrent legislative competencies.

* In general National legislation is Dominant.

Power, Privileges and Immunities of Parliament and Provincial legislators Act 4 of 2004 * NA NCOP has the power to determine their own rules and internal arrangements. * * De Lille and another v Speaker of the National Assembly * Dealing with freedom of speech, De Lille said things in parliament and broke the rules, was deemed unparliamentarily speech. * Parliament has the power to make rules in which it operates; yet they must be in line with the Constitution. * She challenged in terms of freedom of speech.

* Yet parliament has rules and those who break them will be punished accordingly. * They have to comply with the Constitution.
* Yet she was not given the opportunity to present her case at the tribunal that she attended for speaking out of line in parliament. * The important issue is that parliament has to comply with the Constitution in its operation. * If there are no rules and punishments then chaos will ensue. In parliament an open and robust debate is encouraged, yet one cannot defame another. * The Constitutionality of the Act, members have to refer to section 80. * National and provincial legislative competencies.

* Schedule 4 and 5 refer to the exclusive power they hold. * Look specifically at the liquor bill and national gambling board.
* The conflicting laws, refer to section 146, schedule 4 and 5 concurrent. * Intervention in terms of section 44(2) and schedule 5 exclusive powers. * 9 out of 10 times, national will prevail

* In parliament if a member attempts to assault, bribe, force to miss or in contempt they will be punished. * A commission of enquiry will be established
* The permanent committee will deal with the accusation. * The investigation does not exclude a criminal offence. * The said person/s can be:
* Formally warned
* Reprimanded
* Ordered to apologize
* Removed from parliament
* Suspended for 30 days
* Fined up to one months salary.

4. National Executive

Introduction
* Needs a balance between increasingly extensive executive powers and limitation of government power to ensure accountability, transparency and protection of Human rights. * Provides constraints of the exercise of power, yet allows for enough power to perform the necessary tasks.

* Why?
* Exists to serve people.

* How?
* Constitution is basis.
* Not full description.
* Strike a balance and limit power = accountability.

* Terminology
* Executive
* Head of government and administration
* Public administration
* Implementation of law.
* Government
* Parties political appointees
* State
* Neutral, permanent concept.
* Powers and functions of executive to be considered with in the frame work set by Constitution * Doctrines, Human Rights, Values, ect…

The Presidency
* Chapter 5 of the Constitution.
* President is the head of state and the head of the National Executive. * President is elected by NA, ceases to be a member of the NA. * Therefore frees him from parliamentary debate but close ties remain, as he is accountable for them and their actions. * He is allowed to attend and sit in on the debates that ensue.

* The task is comprehensive.
* To be exercised in accordance if Constitution.
* Assent and sign Bills into law, in the form of legislation. * He appoints commissions of enquiries.
* These commissions, when the results are presented to him he can choose to go forward with the results of them, if he does not like what he sees, he can choose to do what he likes, take the matter further or leave it as it stands.

* * President of RSA v SARFU
* A commission of enquiry was set up.
* Yet Louis Late, decided on behalf of SARFU, that they didn’t want an enquiry to take place. * Yet it is the privilege of the President to decide to take the matter further.

* Roles that the president has:
* Head of state (HOS)
* Head of executive (HOE)

* Duration, Section 88
* The terms of office, maximum 10 years.
* When assumes office mid term, it does not count as a term, as he/she only had a part of a term.
* The removal of the President.
* With in 5 days of being elected President in NA.
* Must be in aggregated circumstances
* The other two ways to remove the President
* 1. Section 89
* 2/3rds majority vote in NA
* Serious violation of Constitution or law.
* Serious misconduct has been done.
* Inability to perform functions.
* Thus when he is removed, he will not receive any benefits, no longer receives his salary. * 2. Section 102.
* A vote of no confidence is passed.
* The president and his cabinet must resign and move away. * NA majority vote the motion of no Confidence.
* This happens when there is a political conflict.

Section 84, Power and Functions of the President
* Not an exhaustive list.
* By virtue of function, power is necessary.
* As entrusted by the Constitution and legislation, including powers necessary to perform functions as HOS and HOE. * Assent to and sign Bills, Pharmaceutical Manufactures * Referring Bill back to NA, Liquor Bill

* Reffering Bill to CC, SARFU
* Pardoning offenders, Hugo, Chonco, Ablutt
* His Constitutional powers

* Hugo
* Single father wanted to fall under the single mother clause. * Constitution Court denied this.
* Nature of the power of the President is issuing a pardon. * Traditionally power was called prerogative
* Power is rooted in the Constitution, and is constrained * Decision – where President complied with Constitution, thus power is only constrained by the Constitution.

* President of RSA v SARFU
* Appointed committee of enquiry, the power of the President * Unlimited power.
* CC considered this nature.
* President exercised power within constraints of Constitution. * Liquor Bill
* Refer back to the NA
* Sent Bill back to the NA
* President is the gate keeper and guardian of the Constitution. * After sent back, NA submitted to the President.
* President was still not satisfied,
* Referred it to the Constitution.
* Pharmaceutical Manufactures
* Power constrained by the Constitution.
* ROL requires a rational connection between rationale for giving and purpose of power. * The power the president has to exercise is by virtue of the fact that he is the President. * He cannot delegate his power.

* Must exercise it solely.

The Cabinet
* Consists of president, his deputy and ministers.
* President appoints deputy, ministers and deputy ministers. * He may dismiss them at his will.
* Minister and deputy ministers are responsible for the functions that are assigned to the by the President. * Deputy president and ministers (Except 2) must be ministers of the NA. * Therefore a parliamentary Government.

* The power that the president had is a seves deneris power. * He can fire someone with out having to give a reason.
* It is a political decision and therefore not reviewable. * Masethla v President of RSA
* President appointed the Minister of Safety and Security as the head of a commission of enquiry. * As a result the President no longer trusted him and fired him. * He claimed that this was an arbitrary exercise of power and that he was fired with out reason. * Yet as the President appointed him, he has the power to fire him at his own will, and this was done in line with the rights of the President. * Majority judgement:

* The ROL requires that the rules of natural justice be upheld and that included audi et alteram partem. * Minority
* ROL is a fundamental fairness, which includes procedural fairness and the right to be heard. * The power that the president had is a seves deneris power. * He can fire someone with out having to give a reason and has a wide discretion. * It is a political decision and therefore not reviewable. * He can appoint, hire and fire at his own will.

* The courts don’t like to dirty their hands in political issues. * Thus they stay away from political issues and cabinet matters.

* Executive authority vests in president who exercises this power with his cabinet. * Implement legislation, except where provided otherwise in Constitution or legislation. * * TAC

* Making of policy is prerogative of executive and not the courts. * However when there is a breach of rights, the courts are under a duty to ensure effective relief is granted. * Policy is and should be flexible.

* Only constraint is that policies must be consistent with the Constitution and law: * Coordinating functions of state dept and administrators. * Preparing and initiating legislation – Glenister 1. * Performing other executive duties as provided.

Developing and implementing policies.

* Ministerial responsibility section 92
* Accountable:
* Individually,
* Explanatory responsibility - tell us what happened? * Amendatory responsibility- now go fix it!
* Resignatory responsibility – accepts responsibility and resigns. * Collective
* Requires cabinet to speak out of one mouth
* Agree on matters and issues.
* Barbra Hogan- did not agree that the Dali Lama should be granted a Visa, yet cabinet had agreed to the opposite. * Stance of political issue = 1 collective view.
* Some one breaks ranks, required to resign.

* Code of ethics. VIP NB NB NB NB
* Section 96.
* Provides that ministers can not be paid in any other way * Ministers must act in accordance with the code of ethics {NEPOTISM} * Tokyo Sexwale, conflict between minister and business
* As he owns a large construction company
* Presidnet can remove a minister if he/she does not comply with policy. * Tokyo has to declare what his earnings are.

* Vote of no confidence in cabinet
* Section 102
* NA majority vote needed
* NO confidence in cabinet, President must reconstitute his cabinet. * NO confidence in the President, everyone resigns.

5. The Judiciary

Background
* Third branch of government
* Least dangerous power.
* Its power is independent, they have no purse or army.

* Constitutional principles
* SOP, tension is vital
* Supremacy of the Constitution.
* Independence
* Judicial review

* Principles of the Constitution.
* VI: Separation of powers
* IV: Supremacy of the Constitution
* VII: Appropriately qualified members
* Independence and judicial review are secured in the Constitution.

Constitutional provisions
* Chapter 8.
* Section 165, judicial authority – compliance with principle VII. * Courts are only subject to the Constitution and law.
* Independnecs and Constitutionality are secured.

* Section 34
* Access to courts

* Section 166, judicial system
* CC, SCA, HC MC and other courts
* Amended 2001, judge may serve for 12 years or until the age of 70, which ever comes first. * Tension between the SCA and the CC
* SCA, highest non-Constitutional court
* CC, highest Constitutional court.
* SCA and CC, no Constitutional issue
* But the fact that the CC is above the SCA in hierarchy is an issue.
* Pharmaceutical Manufactures
* There is only one system of law.
* It is shaped by the Constitution, which is supreme law

* Section 173, inherent power, CC, SCA, HC and MC
* Inherent jurisdiction is rooted in the Constitution.
* Therefore can protect and regulate their own process, and develop common law, considering the interest of justice.
* Section 177 the removal of Judges.

* Section 178, Judicial service Commission (JSC).
* Composition of JSC
* 1 politicians 2 Judiciary
* majority minority
* politically weighted, needs to be independent
* JSC appoints judges to President section 174, and he appoints them
* Remuneration section 176
* When judges step down they receive payment for life,
* The public know what they earn
* They are paid out of the National treasury
* This stops the possibility of corruption
* Shows transparency and alleviates the possibility of a judge being bribed in his last sitting.
* Judicial training
* Regulated by Act 14 of 2008
* Establishes an institute for judges.
* Now seen to be necessary.
* Legislation changes quickly and they need to be informed of this. * They need to keep up to date with the diverse society
* They are trained in how to deal with all types of people. * JSC, headed by the chief justice, and he is responsible for the management of the training. * Steered by the Judiciary.
* It is secured partially and the judges can make decisions about the training.
* Judicial Discipline
* Amendment Act 20 of 2008
* Not in operation yet.
* Will deal with complaints and investigations will follow

Judicial task
* SOP is important and vital
* Constitutional supremacy
* Resolutions of disputes through the application of law. * Thus not all disputes come through the courts.

Independence of the judiciary
* Basis of modern democratic society
* Protection of HR
* Supremacy of the Constitution.
* Enforced by the courts, along with judicial review
* Thus the protection of the Constitution.
* Challenges for courts.
* To be independent and to be accountable while fore filling Constitutional mandate to uphold the Constitution and law. * Power of the courts is in their independence, integrity and esteem.

Judicial independence
* The freedom of judicial officers to make their own judicial decisions free form interference by executive, legislation, other judicial officers or the public. * Guided only by the facts of the case and the law applicable * The independence of the judiciary depends largely on public confidence in it. * Independence of the judiciary is a cardinal entailment of the doctrine of the Separation of Powers.

* Mahomed, chief justice.
* Explained the importance of an effective, robust and independent judiciary. * Power of Judicial Review is potentially awesome.
* Court could be paper tigers
* No teeth, thus just toothless wisdom
* They can growl but they cannot bite
* Subvert the judiciary’s independence, will subvert HR in Constitutional court. * The exercise of the judicial power is crucial to the legitimacy of the power. * In SA it is the basic premise of the Constitutional covenant at Kempton Park to which the NA has sought to give expression. * Thus their power comes from their independence, integrity and esteem.

Aspects of Judicial independence – possible Exam Question * Absence of bias, state of mind
* Integrity and judicial temper: impartiality.
* Responsibility of judges themselves to be independent with in framework Constitution creates. * Judges must be aware of own prejudices and values
* Not putting forward own particular beliefs
* Put forward only Constitutional values.
* Keep an impartial mind, acknowledge prejudices
* SARFU
* Absence of bias test applied.
* Where reasonable objective and informed person, diligens paterfamilias
* Infrastructural independence
* Appointment procedure
* Must be compliant with the Constitution.
* Fair, transparent and reasonable
* Security of tenure
* Bad judgement will be dropped
* Therefore will play into the hands of executive and legislature. * Financial independence
* Section 176 (3) pay cannot be reduced, ever.
* Limitation of civil liberty
* To sue judge, you need permission of the courts
* This is to prevent judge from frivolous proceedings * If they were sued all the time, then they could not work * Support
* What judiciary needs
* Adequate resources
* Library and research support
* Administrative support
* Judicial training and education

Institutional independence
* Need to reassure faith in the judiciary
* Hlope, attempted to influence decision in Constitution. * Therefore undermined the independence of the judiciary. * Procedures in place to correct incorrect decisions
* Appeal and review
* Making law understandable
* Demystify the law
* Therefore enhancing the access to courts
* Sensitivity to public needs
* Courtesy, giving judgements in a reasonable time

* Importance of support of other branches
* Section 165(4)
* Organs of state must assist and protect courts to ensure independence, impartiality, accessibility and effectiveness of courts and their judgements given

* * Modderklip
* Owned land in north JHB
* People started to squat on his land
* Owned told municipality they said – OK
* But then 40 000 people
* The owner abstained an eviction order against them to have them removed * Municipality told him that it was his own problem
* It cost R8 million to remove people, the land was worth R2 million. * Thus this impacts on the ROL and access to justice.
* All government structures must assist in enforcement of court order. * Expropriate land, compensate owner.

All government structures must enforce and abide to court judgments
* State liability Act
* Cannot attach assets
* If state does not comply with order.

* Independence of specific courts
* Secured in the Constitution, section 165(2)
* Courts are independent and subject only to the Constitution and law. * Courts must apply the law impartially and without fear, favour or prejudice. * Magistrates court
* Van Rooyen
* Convicted of a serious crime
* Said MC was not independent
* Order was then made invalid
* Magistrate appointed by ministers.
* CC: nice try but core is freedom to hear without interference. * Appoint procedure ensures impartiality
* Traditional courts
* Bangin Dawo
* Presided over by chief of headman
* People know that when they approach TC
* You get your self into it, accept the traditional government system

Judicial Accountability
* Counter – majoritarianism (governed by or believing in decision by a majority) * Section 180 (b)
* Complaints about a judicial officer
* How to discipline

* Judicial service commission amendment Act 20 of 2008.
* Not yet in operation, more of a code of ethics, as of now * Tiered system dealing with complaints
* Acknowledges that independence needs or requires that judges deal with judges * Code of ethics is drafted by judges
* Approved by the executive
* How to conduct themselves
* Only lawyers involved in discipline
* Act is a broad form of solution
* Impeachable offences = tribunal
* NA vote 2/3rds majority
* Then judge will be removed by the president and it will then never happen again.

Finding a balance
* Between judicial activism to protect and uphold the Constitution through fiercely guarded independence and judicial deference to other branches. * Respect boundary of jurisdiction
* Fine line between the doctrine of SOP; what it will and won’t allow. * As well as judges who must have a judicial temper.
* * South African Association of Personal Injury Lawyers v Heath * Case is concerned with the assignment of a member of the judiciary to the executive. * Judge Heath was appointed as the head of a commission of enquiry. * The commission had extensive powers of search and seizure. Yet this role was for the executive to perform. * Separation of the judiciary, the SOP required by the Constitution and is essential to the role of the courts. * Duty of the courts is to ensue that the limits to the exercise of public power are not transgressed. * Crucial to the discharge of this duty is that the courts be and be seen to be independent. * In appropriate circumstances judicial officers can no doubt preside over commissions of enquiry without infringing on the SOP contemplated by our Constitution.

* President of RSA v SARFU
* Judicial officers form time to time may carryout administrative tasks * But………… there may be circumstances in which the performance of administration functions by judicial officers infringes on the doctrine of SOP.

6. Provincial Government

Introduction
* Diffusion of power between different spheres of Government. *
J
L E

Only on National level but applies through out

National
Provincial
Local
Thus the diffusion of powers

* Federal division of power
* SA- work together, co-operative government
* They are not competing
* SA’s division of power, its residual competencies rest with national * Concurrent and exclusive competencies
* Schedule 4 and 5
* Residual competencies fall with National Parliament to decide on.
* * Liquor Bill
* National legislature regulates liquor.
* Retail side, tells provinces how to deal with retail
* Therefore president received a Bill from the National legislation and rejected it as the duty was with the Provinces to legislate on the retail of alcohol. * Thus retail is an exclusive legislative competence for provinces * Trade is a concurrent legislative competence.

* The Bill infringed on the provinces exclusive competence in regard to licensing of retail liquor sales. * The question is whether the substance of the legislation falls within the excluded field of liquor licenses. * Need to construe this matter.

* One will have an impact on the other.
* Co-operative government, section 41 (g) does not encroach on each other’s toes.

Compositions and functions of provincial legislators
* Chapter 3, section 103.
* Democratically elected in to uniform electoral system. * Members 30-80.

* Same qualifications as for national elections, also must be resident in Province.

* Duration of term in office
* 5 years

* officials: speaker and deputy; same as National.
* Forum for public discussion
* Ensure accountability of executive
* Oversees provincial executive action
* Passes and considers provincial legislation

* Powers and Privileges, same as national.

* Legislative authority
* Section 104.
* Pass provincial Constitution
* Western Cape has a provincial Constitution, “mini Constitution” * It must be in compliance with the Constitution
* Pass provincial legislation in terms of schedule 4 and 5 * Conflicts in law, legal interpretation of section 146-150. * Pass legislation assigned to Constitution
* To assign legislative authority to municipality.

Conflict of laws – NB NB EXAM Q hierarchy of laws and making them * Concurrent legislative competencies – schedule 4.
* Respective province cannot regulate properly.
* If to be dealt with effectively requires uniformity across the whole nation. * If it is a national issue
* If national aims to prevent an unreasonable action by provincial government. * Therefore section 146 (2)+(3) if those circumstances above are absent, then provincial will prevail. * Section 146 (5)

* Legislation deals with matter that cannot be regulated effectively by Provinces * National legislation requires uniformity by establishing norms and standards, frameworks and national policies. * National legislation is necessary for maintenance of national security, economic unity, protection of common market, promotion of cross provincial boarder economic activities, promotion of equal access to government services and the protection of the environment. * Provincial legislation = unreasonable/prejudice to economy health, security interests of another province in SA. * Provincial legislation prevails otherwise in relation to these functional areas. * The NCOP, second house of parliament and reflects provincial interests.

Executive legislative competences – schedule 5, provincial * Liquor bill and grootboom
* Only in exceptional circumstances it will not prevail as to: * Maintain national security, the minimum standards for rendering services of economic unity or to prevent unreasonable action by a province * Conflict between national and provincial legislation are present: * National will prevail if Constitution of SA requires enactment of legislation- a provision. * National legislation will prevail if it was enacted with exclusive competence as set out before. * This gives the sense that provinces can make legislation, yet its powers have restrictions, but like the Liquor Bill. * The system of co-operative government allows for incorporation of federal characteristics. * Thus it is not a true federal system.

Provincial executives
* Section 125 – 141
* executive competence follows legislative competence
* vests in premier of the province who then exercises power together with members of executive council. * Premier –
* Specified powers and functions, section 127.
* Similar to President.

* Premier appoints and dismisses MEC’s
* MEC’s are mini – ministers.
* Responsible for stable and responsible government.
* * Mpehle v Government of RSA
* Set up a unit, due to the violence that was occurring in a district. * The unit were apart of the violence that was occurring
* They did not resolve the violence.
* Mpehle was removed by the seves deneris power.
* No audi alteram partem needed

Term of office
* Ministers can serve a Maximum of two terms
* Section 141, motions of no confidence, same as national.

National intervention in provincial affairs
* Section 100.
* This is when provincial executive does not fulfill obligation. * When the province is not performing as it should, national government will step in temporarily, they issue a directive, from the executive, telling them what to do. * If this is not done accordingly then national will take over indefinitely.

Provincial intervention in Local government
* Section 139
* When municipalities cannot or does not fulfill obligation.

Finances
* Section 226 – 228, 230
* Equitable share for each province
* Ensures accountability
* Working with our money.
* Has to be dealt with in a fashion that is accountable. * Bulk of the money is at the national level; the money is not a free for all. * It has to be distributed accordingly as in terms of co-operative government. * Province may raise a loan for bridging purposes.

* Has to repay it with in 12 months
* Provincial legislation may impose taxes, levies and duties

* Matatiele Municipality v President of RSA
* The role of a provincial legislative goes beyond legislation for the province. * It includes taking part in national legislative process.

7. Local Government

Context
* Co operative government
* Section 139, provincial intervention in local – VIP
* Failure of executive obligation
* Issue a directive
* Assume the responsibility.
* This is essential for national standards
* Prevent unreasonable action.
* Economic unity
* Dissolve municipal council- appoint administrator.
* Notification of minster and council
* Provincial legislature and NCOP
* Mnquma Local Municipal Council v Premier of EC
* Para 40

* Section 151 (3)+(4)
* Municipality has the right to govern own initiative * National or provincial may not compromise or impede municipal ability or right to exercise its powers or perform functions * Section 154, Municipality in cooperative government.

* Transformation
* Process

* Legislative frame work.

* Importance of Local Government
* It is closer to the people
* More aware of peoples needs
* Effective government can only respond to peoples needs. * Objectives of local government
* Section 152(1)
* Promote social and economic development
* More than just putting water in the taps
* They play a comprehensive role.
* Programmatic
* Ongoing process
* Never done
* Money in national
* Therefore LG effectiveness is determined through national allowance that is given.

* Form and structure
* Section 151 (1)
* Wall to wall LG
* Every inch of land is divided in to a LG jurisdiction
* Prior to 1994, some land did not have LG

* Section 155
* Categories of municipalities
* A – Metropolitan
* B – Local
* C – District
* Members of municipal councils are democratically elected. * Proportional system combined with word system
* Municipal council
* Functions assigned in Constitution and legislation.
* Constitution gives principle of subsidiary
* Development responsibilities.
* Implementation of national and provincial legislation.
* Fedsure life Assurance ltd v Greater Johannesburg Transitional Metropolitan Council. * Municipalities powers to make laws was characterized as delegated power. * There is a Constitutional obligation on the competent authority to exist * That is autonomous and can and is entitled to regulate its affairs. * LG have a place in the Constitutional order.

* Have to be established by competent authority
* Can make by-laws and impose rates
* Whether the resolutions and rates and every imposed were inconsistent with Constitution.

* Dikoko v Mokhatla
* Providing for immunity from defamation, promotes freedom of speech. * Encourages democracy through open rigorous debate.

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