TOPIC 3

THE SEPARATION OF POWERS

AND THE NATIONAL
LEGISLATURE

THESE NOTES ARE SUMMARIES OF DE VOS ‘SOUTH AFRICAN CONSTITUTIONAL

LAW IN CONTEXT’ PAGES 105-180. INTENDED FOR LECTURING PURPOSES ONLY.
 3.1 THE LEGISLATURE AND ITS
FUNCTIONS
 The legislature, or Parliament as it is referred to by the Constitution, is one of the branches in the separation of powers.
 The constitutional responsibilities were summed up by the Constitutional Court in Economic Freedom Fighters v Speaker of
the National Assembly and Others; Democratic Alliance v Speaker of the National assembly and Others 2016 (5) BCLR (CC)
at paragraph 22 where the Court held that not only is Parliament ‘the embodiment of these centuries-old dreams and
legitimate aspirations of our people’’, but is also ‘the voice of all South Africans, especially the poor, the voiceless and the
least-remembered’. In addition, ‘Parliament is the watchdog of state resources, the enforcer of fiscal discipline and cost-
effectiveness for the common good of all our people’. Apart from these responsibilities, the Court held further, Parliament is
responsible for ‘holding the Executive accountable for the fulfilment of the promises made to the populace…’ and for passing
‘legislation with due regard for the needs and concerns of the broader South African public’.
 In the light of this dicta, Parliament’s responsibilities can be summarised as follows:
 1) articulating the aspirations, concerns and desires of all South Africans, especially the poor and most vulnerable;
 2) ensuring that all executive organs of state in the national sphere of government are accountable to it;
 3) maintaining oversight of the exercise of national executive authority and especially the authority to use state resources and
spend public money; and
 4) considering, passing amending or rejecting legislation on any subject that falls within its legislative authority.
 3.1 THE LEGISLATURE AND ITS
FUNCTIONS continued
 The Constitution bestows a number of functions on Parliament – perhaps the most important of these is to
pass national legislation for the Republic, usually in the form of an Act of Parliament, as well as acting as a
national forum for public debate on issues of national importance. In this sense it acts as a platform for
representatives of political parties to present their views and debate each other.
 The Constitution also bestows additional functions specifically on the National Assembly (NA) in order to fulfil
its special role as a ‘check’ on the executive authority – this is bestowed on the NA because of the fact that it
appoints and can dismiss the President.
 The House of Parliament can be said to fulfil four main functions:
 1) provide a forum for debate on important issues
 2) hold the executive organs of state in the national sphere of government accountable to Parliament
 3) exercise and oversight function over the exercise of national authority and over other organs of state and
 4) pass national legislation.
 3.2 FUNCTION, STRUCTURE AND
COMPOSITION OF PARLIAMENT
continued
 Parliament is a bicameral legislature – divided into two houses: the National Assembly (NA) and the National Council of
Provinces (NCOP).
 The idea behind bicameralism is that the two Houses of power represent different interests, and thus act as a check on one
another; having two Houses is said to provide for better representation of the electorate in a heterogenous society, to assist
in alleviating Parliament’s workload and to promote a thorough consideration of matters before Parliament.
 Bicameralism’s main justification is to ensure adequate democratic representation of different interests, namely the interests
of the people by the NA on one hand, and the interest of the nine provinces by the NCOP on the other hand.
 Although legislative power is distributed between these two Houses, the NA is constitutionally and politically the dominant
House.
 The members of the Houses are appointed in different ways: NA members are directly elected via their respective political
parties in the national election whereas the NCOP delegates are indirectly elected via the provincial legislatures.
 They are appointed differently as they represent different interests: the NA represents the interests of all South Africans while
the NCOP represents the interests of provinces in the national legislature.
 3.2 FUNCTION, STRUCTURE AND
COMPOSITION OF PARLIAMENT
continued
 The NA is more dominant because:
 1) the NA elects and can also dismiss the President;
 2) with the exception of two members, all of the other members of the executive must be selected from and remain members of the NA
 3) the NA must hold all executive organs of state in the national sphere of governments accountable to it
 4) the NA must maintain oversight of the exercise of national executive authority, including the implementation of legislation
 5) the NA plays a decisive role in various other appointments for example the appointment of the Commissioners of the Chapter 9 institutions
which are designed to support constitutional democracy, are made by the NA.
 The NCOP has a less defined role in holding the executive to account and has no role in the appointment or dismissal of members of the
executive.
 Unlike the executive, which has its seat in Tshwane, the seat of Parliament is in Cape Town (s42(6)); however an Act of Parliament can determine
that the seat of Parliament is changed as long as the correct procedure is followed (s76(5))
 Sittings of the NA or the NCOP are permitted at places other than the seat of Parliament, but only on grounds of public interest, security or
convenience, and if provided for the rules and order of the NA or the NCOP (s63(3)).
 3.2 FUNCTION, STRUCTURE AND
COMPOSITION OF PARLIAMENT
continued
 The role of political parties
 It is important to note that in both the NA and the NCOP the democratic link between the voters and the legislature is mediated through
political parties – this means that a person cannot become a member of one of the Houses of the national legislature unless that person
is a member of a political party.
 The constitution thus establishes not only a system of government in which the majority party in the NA forms the government, but also
a system of party government – this is because the system cannot function in the absence of political parties,
 A party government is usually defined as a system of government in which political parties have a decisive influence on the way in
which government is composed, on government policy and on the actions of the elected representatives in the legislature.
 In Certification of the Constitution of the Republic of South Africa 1996 (CCT 23/96)[1996] ZACC 26, the Constitutional Court confirmed
the pivotal role played by political parties in the South African constitutional system by stating the following: ‘Under a list system of
proportional representation, it is parties that the electorate vote for, and the parties which must be accountable to the electorate. A party
which abandons its manifesto in a way not accepted by the electorate would probably lose at the next election.’
 Despite their importance, the Constitution provides little guidance as to the manner in which political parties must operate and about the
specific relationship between the leadership of a political party and its representatives in the legislature or the executive.
 Members of Parliament need to serve the people above their party, political parties and their leaders still hold enormous power over
elected members of the legislature in South Africa.
 3.3 THE RULES, POWERS AND
PRIVILEGES OF PARLIAMENT
 3.3.1 General Rules regarding the operation of Parliament
 The NA and NCOP have the power to determine and control their own internal arrangements, proceedings and procedures (section 57(1) and 70(1))– the
Constitution thus authorises the NA and the NCOP to make joint rules and order concerning the joint business of the two Houses (section 45).
 It also authorises the two houses to make rules separately regarding their own operations.
 The Constitution requires the NA and the NCOP to make rules and orders to provide for the for the composition, powers and functions of the committees –
when Parliament exercises this power, it must do so in a manner that gives effect to the provisions of the Constitution.
 The Constitutional Court in Economic Freedom Fighters and Others v Speaker of the National Assembly and another (CCT76/17)[2017] ZACC 47 also ruled
that the failure by the NA to make rules when this was required by a specific provision of the Constitution was in breach of the Constitution.
 Both Houses of Parliament and their committees have wide-ranging powers not dissimilar to those of a court of law and can summon any person, including
the President and Cabinet Ministers, to appear before them to:
 1) give evidence under oath or affirmation, or to produce documents
 2) require any person or institution to report to it
 3) compel, in terms of national legislature or the rules and orders, any person or institution to comply with a summons or requirement to produce documents;
and
 4) receive petitions, representations or submissions from any interested person or institutions.
 3.3 THE RULES, POWERS AND PRIVILEGES OF
PARLIAMENT
continued
 Usually the relevant committee will request a witness to appear before it to answer questions and to produce
any documents required, or institutions or individuals will request to make written and oral submissions to a
committee; if a witness refuses to appear after being asked to do so by a committee, that witness can be
summonsed to do so and can ultimately be compelled to appear and to answer questions.
 However, the Rules of the National Assembly make it clear that this power should be exercised sparingly and
prohibit any committee from summonsing a witness without first having satisfied the Speaker that the evidence
of such witness will be material to the enquiry.
 It is clear that the two Houses have wide powers to fulfil their mandates in the best way chosen by them
however, the Constitution curtails their powers in three distinct ways:
 1) Both Houses are required to act in an open and transparent manner and cannot make rules that would
extinguish the constitutional requirement of openness;
 2) Members of both Houses as well as Cabinet members who appear before them enjoy certain privileges
which cannot be curtailed by Parliament or anyone else; and
 3) Both Houses are required to facilitate public involvement in their legislative and other processes.
 3.3 THE RULES, POWERS AND
PRIVILEGES OF PARLIAMENT
continued
 3.3.2 Openness and transparency in Parliament
 The Constitution requires both the NA and the NCOP to conduct their business in an open manner, and hold their sittings and
those of their committees in public – this requirement is closely linked to the right of every citizen to vote in elections, as this
right can only be exercised meaningfully ‘if voters know what their representatives do and say in Parliament’.
 Reasonable measures may be taken to regulate public access, including access of the media, to Parliament and its
committees, and to provide for the searching of any person and where appropriate, the refusal of entry or the removal of any
person from the precinct.
 The NA and NCOP are further explicitly prohibited from excluding the public, including the media, from sitting of a committee
unless it is reasonable and justifiable to do so in an open and democratic society.
 Rule 57(1) of the Rules of the NA further regulate the possible limits on the openness and transparency of the NA by stating:
‘the power to admit visitors to the places set apart for them in the Chamber or public galleries of the Chamber or in any other
venue in which the House or a mini-plenary session or a committee of the House is meeting, or to regulate or limit any activity,
access or movement of visitors whilst within the precincts of Parliament or a venue utilised for parliamentary work, vests in the
speaker, subject to section 59 of the Constitution.
 Case: Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11
 3.3 THE RULES, POWERS AND
PRIVILEGES OF PARLIAMENT
continued
 3.3.3 The powers and privileges of Members of Parliament

 The power of Parliament to determine its own procedures is not only limited by the requirements of openness, accountability and transparency but also by other more
specific duties imposed on Parliament by the Constitution.

 It in addition, it is also limited by the privileges conferred on the Cabinet Ministers, Deputy Ministers and members of the NA and NCOP of freedom of speech and freedom
from civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said or done in the NA or the NCOP or one of their committees.

 Parliamentary privilege is based on the notion that Members of Parliament need to be able to speak freely and uninhibitedly to be able to do their work and to expose
wrongdoing without the fear of being held liable for what they say; without this protection, Members of Parliament would be handicapped in performing their parliamentary
duties.

 In addition, the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.

 Parliamentary privilege does not extend to personal matters – in Dikoko v Mokhatla (CCT62/05) [2006] ZACC10 the respondent who was a municipal manager of the
Southern District Municipality in the North West Province, sued the applicant, who was the mayor of the same municipality for defamatory remarks the applicant has made
while giving evidence to the Standing Committee on Public Accounts of the North West Provincial Legislature. In his defence, the applicant argued that he was protected by
section 28 of the Local Government: Municipal Structures Act 117 of 1998 which confers the same privileges and immunities on municipal councillors that the Constitution
confers on MPs.

 The Constitutional Court rejected this argument on the grounds that the defamatory statements made by the applicant did not form part of the legitimate business of the
municipality, but pertained to his own personal business.
 3.3 THE RULES, POWERS AND
PRIVILEGES OF PARLIAMENT
continued
 In South Africa, parliamentary privilege came under the spotlight for the first time in Speaker of the National Assembly v De Lille MP and
Another (297/98) – in this case Ms Patricia De Lille, who was a member of an opposition party in the National Assembly, stated during a
debate that 12 members of the governing party, who she identified, had been spies for the apartheid government. Following objections
from the members of the governing party, the Speaker ruled that De Lille’s statements were ‘unparliamentary’ and ordered her to
withdraw her remarks.
 Despite the fact that she withdrew her remarks, the NA adopted a motion appointing an ad hoc committee to investigate and make
recommendations concerning her conduct.
 This ad hoc committee found that her remarks were objectionable and unjustified and recommended that not only should she be directed
to apologise, but also that she should be suspend for 15 parliamentary working days. This recommendation was accepted by the NA.
 After Ms De Lille was suspended, she applied to the Western Cape High Court for an order setting aside the decision of the NA; the High
Court found in favour of Ms De Lille and found that her suspension unjustifiably infringed her constitutional rights to freedom of
expression, administrative justice and access to courts.
 The Supreme Court of Appeal upheld the decision of the Western Cape High Court.
 The important role that the privilege of freedom of speech plays in South Africa’s democracy and the weight attached to it by the
Supreme Court of Appeal in De Lille was confirmed by the Constitutional Court in its subsequent judgement in Democratic Alliance v
Speaker of the National Assembly and Others 2016 (3) SA 487.