SCHOOL OF LAW
HOWARD COLLEGE CAMPUS
CONSTITUTIONAL LAW
LAWS2CS/LAWS3CS
COURSE OUTLINE – SECOND SEMESTER: 2023
Credit Points: 16
1. INTRODUCTION
‘A society of sheep must in time beget a government of wolves’
Bertrand de Jouvenel
‘Every nation has the government that it deserves’
Joseph de Maistre (1753-1821)
Traditionally, the term Constitutional Law has been used to ‘describe rules which directly or
indirectly affect the distribution of the sovereign power in the state’ (AV Dicey, Introduction to the
Study of the Law of the Constitution, 10 ed, 1959). Constitutional law therefore refers to the body of
rules according to which a state is constituted or governed, the way in which the organs of
government are structured and defined, and the way in which those organs relate to one another
and to the citizen of the state. It should be noted, however, that the study of constitutional law
entails more than a learning of legal rules: it requires an understanding of history, government and
politics. Constitutional law therefore not only examines the historical origins of constitutions but
also addresses the balance of power between the branches of government and reviews issues and
cases concerning the fundamental rights and freedoms of citizens.
This course aims to provide students with an understanding of constitutions in general, and of the
role of the Constitution in the South African system of government in particular, together with
knowledge of the relevant legal concepts. An international and African perspective is also
employed in understanding how the South African constitutional system fits within the global
context.
The course commences with a general introduction to the scope of constitutional law, sources and
fundamental concepts of constitutional law such as the rule of law, separation of powers,
sovereignty, etc. The constitutional history of South Africa follows, and thereafter the electoral
systems and an introduction to the structure of states. This is followed by the structure and spheres
of governance, focussing on the principal institutions of the state, namely the legislature, executive
and judiciary and their respective powers. The final section of the course deals with certain
institutions of state which differ from government departments in that they are created by and
receive their mandates from the Constitution itself. This includes the National Prosecuting Authority
and the so-called ‘chapter nine institutions’. These topics will not necessarily be dealt with in the
order indicated here.
2. COURSE OBJECTIVES
MODULE OUTCOMES
Statement of specific learning outcomes for the module
Students must be able to:
• define, explain, apply and evaluate the fundamental legal concepts and legal theories
on which different constitutional systems and the study of constitutional law is based;
• list, describe, compare and critique key events, policies, processes and decisions,
which occurred during the development of South Africa’s constitutional system and its
precursors until the present;
• explain, contrast with foreign jurisdictions and appraise the basic structures of the
South African constitutional system, and the principles that underpin them, such as the
separation of powers, the rule of law, co-operative government and democracy;
• define, explain, apply, contrast with foreign jurisdictions and evaluate the composition,
powers, responsibilities and limits of Parliament, the Provincial Legislatures and the
Municipal Councils;
• define, explain, apply, contrast with foreign jurisdictions and evaluate the composition,
powers, responsibilities and limits of the President and the Cabinet, the Premiers and
the Executive Councils and the Municipal Councils;
• define, explain, apply, contrast and evaluate the composition, powers, responsibilities
and limits of the Constitutional Court, the Supreme Court of Appeal, the High Courts
and the Magistrates’ Courts and other relevant tribunals with regard to constitutional
jurisdiction, the selection and appointment of the judiciary, explain issues relating to
the judiciary and separation of powers together with dangers to judicial independence;
Students will be able to:
• locate, identify and extract the concepts, principles and rules of constitutional law from
a variety of sources, in particular: textbooks, statutes, law reports and journal articles;
• present written arguments, on the concepts, principles and rules of constitutional law
so as to demonstrate and understanding of these concepts, principles and rules;
• analyse judgments of the Constitutional Court and/or the Supreme Court of Appeal
and/or the High Courts so as to list, summarise, apply and judge the constitutional
concepts, principles and rules articulated and developed by the courts; and
• analyse the facts of legal problems so as to identify the nature of the problem, explain
the appropriate legal concepts, principles and rules and correctly apply these
concepts, principles and rules so as to demonstrate an ability to analyse and solve
problem type legal questions.
3. COURSE LECTURERS AND ADMINISTRATOR
Dr P Swanepoel (module coordinator) Suite B, Room 115, Howard College Building,
E-mail: swanepoelp@[Link]
Ms R Matlala Suite A, Room ….., Howard College Building,
E-mail: Matlalar@[Link]
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Ms S Gray Suite A, Room 104, Howard College Building, E-mail: GrayS@[Link]
Administrator: Ms L Gumede Law Clinic, Hut 11, Howard College
Email: gumedel2@[Link]
3.1 Email contact with lecturing staff
For individual consultations with lecturers regarding a query in relation to the law, students are
required to bring their own research notes with them. The lecturers are willing to spend as much
time as may be necessary to help a student to understand a concept or to flesh out an idea, but
only for students who have done their work and made the requisite effort to research and
understand the concept themselves. Consultations are not intended to provide a private tutelage
service for students who cannot be bothered to do their own work.
Nevertheless, students are invited to bring specific academic queries to the ZOOM consultations. If
you have worked on an academic issue and are still uncertain, it is likely that other students will be
in the same position and will benefit from any discussion we have.
Note that the School of Law is a School which, inter alia, serves to prepare students for a
profession. Therefore a professional approach to correspondence is required and should
be viewed as forming part of student’s tuition. Any e-mail transmission addressed to the
lecturing staff shall take the form of a formal letter.
Note, as per university policy, use your UKZN email address and check for updates and
notices sent to your address, as well as on Moodle for any emails you might have missed.
Lecturers and administrators will NOT respond to [Link] or other email addresses.
4. COURSE FORMAT/ TEACHING METHODOLOGY
(a) Lectures
There are to be four lectures a week in accordance with the School of Law’s timetable.
(b) Tutorials
Tutorials will be scheduled and the class divided into tutorial groups for this purpose. Should
students experience consultation clashes in this regard, they should raise the issue with Ms
Gumede who will consider the veracity of the alleged clash and reassign the student at her
discretion. Alternatively, the GTA tutor assigned to the module may make these decisions.
Kindly keep watch for notices on the Constitutional Law LEARN page and in your university emails
accounts.
Tutorial preparation:
The tutorials allow students an opportunity to approach the topics in a peer setting and in smaller
classes than the class consultations. Students are encouraged to utilise these opportunities to
digest and understand the relevant concepts. Should concepts not be clear after the tutorial, it is
imperative that the student consult with the lecturer concerned.
Students are required to prepare for tutorials in advance by answering the set of questions set for
each tutorial in writing. These answers should be typed in Arial 12 font and dispatched to the GTA
tutor before each tutorial, in accordance with timelines which shall be indicated by notice on
MOODLE.
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Students’ answers are reviewed by the tutor and moderated by the lecturers. Take note of any
feedback from the tutor or lecturers to improve your understanding before tests or examinations.
Note:- Attendance of lectures, tutorials and the preparation of tutorial answers is
compulsory.
5. COURSE TEXTS AND MATERIALS
(a) Prescribed Texts
De Vos et al (2021) South African Constitutional Law – In Context: Oxford University Press
Please note that this book has become the main textbook as it is available online through
the Sweeney School of Law Library. Students having trouble accessing this book should
contact the senior HC law librarian.
Currie I & de Waal J (2001) The New Constitutional and Administrative Law Vol 1 Cape Town: Juta
(b) Recommended Texts
Bennett TW (2007) Customary Law in South Africa Cape Town: Juta
Rautenbach IM and Malherbe EFJ (2012) Constitutional Law Sixth Edition, Lexis Nexis
Ngcukaitobi T, Brickhill J and Stein N (2012) Constitutional Law Case Book First edition, Juta
Devenish GE (2005) The South African Constitution Durban: Butterworths
Chaskalson M et al (1996) Constitutional Law Cape Town: Juta (loose-leaf)
Devenish GE (1998) Commentary on the South African Constitution Durban: Butterworths
De Waal J Currie I & Erasmus G (2005) Bill of Rights Handbook, 5th ed Cape Town: Juta.
Note: Copies of all of the above listed texts are available in the Reserve Section of the Law
Library. References for other recommended readings will be circulated in due course.
(c) Documents
• Constitution of the Republic of South Africa Act 200 of 1993
• Constitution of the Republic of South Africa, 1996
All students must obtain their own copy of the 1996 or ‘final’ Constitution. It can be purchased from
a bookshop or downloaded from several sites on the web, including those of the Department of
Justice and Constitutional Development or the Constitutional Court, both of which are set forth
below. Free copies may still be obtainable from certain government departments such as the Post
Office or the Department of Justice and Constitutional Development.
(d) Cases and articles
We have prescribed a limited number of cases and it is imperative that these cases be read in their
entirety. Citations of these cases are contained in this outline or will be circulated in class. These
cases MUST be read PRIOR to the relevant lecture. Articles will be prescribed in this outline or in
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class and referred to during the course of the module. Where such articles are prescribed, they too
MUST be read PRIOR to the relevant lecture.
(e) Useful Websites
The internet will often be a good source of many relevant materials. Please use these electronic
sources where possible. The following websites will be particularly useful:
• Constitutional Court:- [Link]
• Constitutionally Speaking – A blog site with short articles of constitutional
relevance, authored by Prof Pierre De Vos of UCT:-
[Link]
• Electoral Institute for the Sustainability of Democracy in Africa (EISA):-
[Link]
• Polity Org. ZA – a useful site for finding cases, legislation, policies, speeches and
articles:- [Link]
• Department of Justice and Constitutional Development; the site of the
government department most directly concerned with constitutional issues. Useful
source for policy, Bills and legislation:- [Link]
• The Institute for Accountability in Southern Africa (IFAISA); Useful for
monitoring and reports:- [Link]
• South African Institute of Race Relations; articles and reports:-
[Link]
• Southern African Legal Information Institute (SAFLII); cases which have not
been yet reported - [Link]
• Politicsweb – source for cases, political statements or speeches, articles and other
materials:- [Link]
6. SYLLABUS
The following are the general subject areas we expect to cover in this course. You should note that
we may spend more time on some topics than others, but that does not diminish the importance of
any the topics covered.
Please note that the various topics will not be delivered necessarily in the order set out below. The
correct order and the lecturers presenting each topic are set forth in the teaching schedule which
appears immediately hereafter.
1. Basic Concepts and Terminology: Dr P Swanepoel
Content:
• Basic Concepts: Constitutionalism as a concept and the distinction between the state and
the government in a liberal constitutional state
• Transformative Constitutionalism
• What is a constitution?
• What is Constitutional Law?
• What constitutions contain
• Classifications of constitutions – philosophically and structurally
• How constitutions emerge – evolutionary and planned
• Sources of Constitutional Law
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• The Rule of Law
• Separation of Powers
• Checks and Balances
• Independence of the Judiciary
• Sovereignty
o Parliamentary Sovereignty
o Constitutional Supremacy
• Democracy – Direct/Representative/Participatory
• Representative Government
• Responsible Government
Literature:
• Currie and de Waal (2001) 1-38
• Rautenbach and Malherbe (2012)
2. Constitutions, Constitution-making and Constitutionalism in the African and Global
Context: Dr P Swanepoel
Content:
• Constitutionalism
• The right to participate in constitution-making
• Constitution-making in Africa (in selected jurisdictions)
Literature:
• Klare, K ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African
Journal on Human Rights 146-188.
• Langa, P ‘Transformative constitutionalism’ (2006) 17 Stellenbosch Law Review 351-360.
• Brickhill J & Van Leeve Y ‘Transformative Constitutionalism: Guiding Light or Empty
Slogan?’ in A Price & M Bishop (eds) A Transformative Justice: Essays in Honour of Pius
Langa (2015) 141.
• Landau, D ‘Constitution-making gone wrong’ (2013) 64(5) Alabama Law Review 922.
• Jackson, VC ‘What’s in a Name - Reflections on Timing, Naming, and Constitution-Making’
(2008) 49 William & Mary Law Review 1249.
3. South African Constitutional History: Dr P Swanepoel
Content:
• The precursors of the South African Constitution
o The Origins of the English Parliament
o Parliament Seizes Power
o The Glorious revolution and the Bill of Rights
o The creation of the US Constitution
o The difference between the British and US Constitutions
• Constitutional History of South Africa
o Pre Union constitutional developments
o The Union Constitution
o Basic features of the Union Constitution
o The rise and fall of parliamentary supremacy
o The construction of a racially divided state
o The franchise and the racial construction of citizenship
o Denationalisation and the ‘extension’ of the franchise – Tri-cameral Constitution
Literature:
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Currie and de Waal (2001) 39-71
Cases:
• Harris v Minister of the Interior 1952 (2) SA 428 (A)
• Minister of the Interior v Harris 1952 (4) SA 769 (A)
• Collins v Minister of the Interior 1957 (1) SA 552 (A)
4. Drafting of the Constitution and Certification Process: Dr P Swanepoel
Content:
• The South African Constitution making process including the ‘Interim’ Constitution and a
legal revolution
• The roles of the Constitutional Assembly and the Constitutional Court
• The certification process (including judgments).
o Basic structures and constitutional principles
o Amending the Constitution
o Amending the Bill of Rights
o Separation of Powers
o Expropriation of Land
Literature:
• Currie & De Waal (2001): Good overview of drafting and certification. Compulsory.
• Rautenbach & Malherbe (2012): overview, especially on adoption of constitutions process
2.2.4 p.22ff.
• De Vos (2014) Chapter 1, 15-30. Compulsory.
• Klug H ‘Participating in the Design: Constitution-Making in South Africa’ (1996) 3(1) Review
of Constitutional Studies 18.
• Ebrahim H ‘The making the Constitution: Some influences in Ellman & Andrews (eds) Post-
Apartheid Constitutions (2001) 85-102 (discusses players involved such as international
community, civil society and of course bilateral parties (ANC/NP power play)).
• Ebrahim H & Miller L ‘Creating the birth certificate of a New South Africa: constitution
making after Apartheid’ in L Miller (ed) Framing the State in Times of Transition: Case
studies in Constitution making (2010) 111-157. Available at:
<[Link] Compulsory.
• The Draft Expropriation Bill, 2019
[Link]
Cases:
• Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution
of Republic of South Africa 1996 (4) SA 744 (CC) (First Certification judgment).
Compulsory.
• Certification of the Amended Text of the Constitution of the Republic of South Africa 1996
1997 (2) SA 97 (CC) (Second Certification judgment). Compulsory.
5. Basic Features of the 1996 Constitution: Ms S Gray
Content:
• Nature of the Basic features
• Constitutional supremacy
• The Rule of Law
• Democracy
• Accountability, responsiveness and openness
• Separation of powers
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• Co-operative government
Literature:
De Vos (2021) 49-69; 75-104; 302-312
Currie and De Waal (2001) 72-124
Rautenbach and Malherbe (2009) 23-56
Cases:
• Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247
(CC)
• De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C)
• Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others 1999 (1) SA 374 (CC)
• Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte
President of the Republic of South Africa and Others 2000 (2) SA 674 (CC)
6. Electoral Systems: Ms Simone Gray
Content:
• Political parties
• Constituency based systems
• Party List systems
• German hybrid
• The Reynolds System
• The current South African system
Literature:
• Devenish (2005) para 98-102; 197; 241
• Rautenbach and Malherbe (2012)
Case:
New Nation Movement NPC And Others v President Of The Republic Of South Africa And Others
2020 8 BCLR 950 (CC)
7. The Structure of States: Ms R Matlala
Content:
• Unitary States
• Federations
• Quasi-Federations
• Confederations
• The current structure of governance in South Africa
• The provincial debate and ‘cooperative’ government
• Intervention, and conflicts between the national and regional bodies of governance
Literature:
De Vos et al (2014) Chapter 2
Currie and de Waal (2001) 12-26
Devenish (2005) 37-39
Constitution and Cases:
• Sections 41 and 100 of the Constitution
• Ex Parte President of RSA: In re Constitutionality of the Liquor Bill 2000(1) SA 732 (CC)
[alternative citation: 2000 (1) BCLR 1 (CC)] read 1253 – 1286]
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• Executive Council, Western Cape v Minister of provincial Affairs and Constitutional
Development and another; Executive Council, KwaZulu-Natal v President of the Republic of
South Africa and others 2000 (1) SA 661 (CC)
8. Legislative Authority: Ms R Matlala
Literature (general):
• De Vos et al (2014) South African Constitutional Law in Context OUP at 107-167.
• Currie and de Waal J (2001) 130-198.
• Devenish (2005) paras 3-12, 191-224
• Rautenbach and Malherbe (2012)
Content & cases and Constitution:
a. Legislatures in General
• The Composition of a legislature (United Kingdom, United States, South Africa)
• The life of a Parliament
• The role of the Opposition and Conventions
b. The National Assembly (De Vos: 123-132)
• Membership
• The Office of the Speaker
• Committee Work and Plenary Sessions
c. The National Council of Provinces (De Vos: 134)
• Purpose and Membership
• Procedures, internal arrangements and committees of the NCOP
d. The main functions of the legislature (De Vos: 142-163)
• Selecting officials
• Making Law
o Areas of competence
o The national legislative process
o Voting processes and quorum
o The passing of Bills
• The House of Traditional Leaders
a. Ex Parte President of RSA: In re Constitutionality of the Liquor Bill 2000(1) SA 732
(CC)
b. Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (6)
SA 214 (CC)
c. Mailula, D ‘Customary (communal) land tenure in South Africa: did Tongoane overlook
or avoid the core issue?’ (2011) Volume 4 Constitutional Court Review 73-112.
d. Glenister v President of the RSA and others 2009 (1) SA 287 (CC) (separation of
powers in the passing of legislation)
e. Glenister v President of the RSA and others 2009 (1) SA 287 (CC) 2011 (3) SA 347
(CC) (Legality of legislation passed)
• Creation and oversight of the executive
a. SA Constitution – sections 42(3); 55(2); 86; and 92 (with 89 and 102).
• Linking Citizens with legislature (Public involvement in legislative processes)
b. Doctors for Life International v Speaker of the National Assembly and Others 2006
(6) SA 416 (CC)
c. Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47
(CC)
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d. Poverty Alleviation Network v President of the RSA 2010 (6) BCLR 520 (CC)
e. Powers of Parliament
Content:
• Obtaining evidence and punishing for contempt
• Parliamentary Privilege
Literature:
• Powers, Privileges and immunities of Parliament and Provincial Legislatures Act 4 of 2004,
sections 6 – 19
• De Vos et al (2014) 116
• Currie & De Waal – 155
• Constitution of SA - sections 56(a) and (b) and Sections 69(a) and (b)) – evidence and
reporting; sections 56(d) and 69(d) - petitions)
Cases:
• UDM v President of RSA 2002 (11) BCLR 1179 (CC)
• De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C)
• Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA)
• Poovalingham v Rajbansi 1992 (1) SA 283 (A)
• The EEF and Others v The Speaker of the National Assembly and Others (WCD) - 23
December 2014 Case no. 21471/2014
[Link]
• Mazibuko v Sisulu 2013 (11) BCLR 1297 (CC)
• United Democratic Movement v Speaker of the National Assembly and Others (CCT89/17)
[2017] ZACC 21 (22 June 2017).
9. Executive Authority: Ms Simone Gray
Content:
• The composition of the Executive
o Government/State
o United States
o United Kingdom
o South Africa
• Role and function of the Executive
• The source of executive authority
• The Role of the President and the distinction between the President as Head of State and
Head of the Executive
• The limits of executive authority
o Discretionary powers
• Accountability
o Responsible Government
• The Morality of Public Office
• The dismissal of the Executive
• Access to Information
Sections 83 to 102 of the Constitution
Literature:
• De Vos et al (2021) chapter 5 – p 181 – 217
• Currie and de Waal (2001) chapter 5
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• Devenish (2005) chapter 5
• Rautenbach IM and Malherbe EFJ (2012)
Cases:
• Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417
(SCA)
• Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248
(CC).
• Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC)
• SARFU and Others v President of the RSA and Others 1998 (10) BCLR 1256 (T)
• President of the Republic of South Africa and others v South African Rugby Football Union
and others 2000 (1) SA 1 (CC)
• Minister of Justice and Constitutional Development v Chonco 2010 (1) SA 325 (CC).
• President of the Republic of South Africa and another v Hugo 1997 (1) SACR 567 (CC)
• Protection of State Information Bill (B 6B-2010)
Optional:
• Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape and
Another 2001 (2) SA 609 (E)
• Premier of the Western Cape Province v Acting Chairperson: Judicial Service Commission
and 15 Others Western Cape High Court, Cape Town, [2010] ZAWCHC 80; 2010 (8) BCLR
823 (WCC), 31 March 2010
• Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape
Province 2011 (3) SA 538 (SCA)
• Mansingh v General Council of the Bar and Others 2014 (2) SA 26 (CC)
• M&G Media Ltd and Others v 2010 FIFA World Cup Organising Committee South Africa Ltd
and Another 2011 (5) SA 163 (GSJ)
10. Judicial Authority: Ms S Gray
Content:
• Attributes of judicial authority
• Historical and democratic context including judicial transformation imperatives
• Concepts revisited: judicial review, restraint, separation of powers, counter-majoritarianism
• Judicial system structure in South Africa
• Jurisdiction of the Courts, with emphasis on the jurisdiction of the Constitutional Court as a
Court of first instance in respect of matters within its exclusive jurisdiction; direct access;
appeals in constitutional and non-constitutional matters and concurrent jurisdiction with the
Supreme Court of Appeal and High Courts
• Independence of the Courts including its meaning, functional independence, personal
independence, Judicial Services Commission, Appointment and removal of judges,
methods to ensure independence, and control over judicial bodies.
Literature:
• De Vos et al (2021) Chapter 6: p 219 – 270.
• Currie & De Waal (2001) Chapter 6.
• Le Roux, W ‘Descriptive Overview of the South African Constitution and Constitutional
Court’ in O Vilhena, U Baxi & F Viljoen (eds) Transformative Constitutionalism: Comparing
the Apex Courts of Brazil, India and South Africa (2013) Pretoria: Pretoria University Press
135. Available online open access: <[Link]
collections/transformative-constitutionalism-comparing-the-apex-courts-of-brazil-india-and-
south-africa>
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• O’Regan, K ‘Helen Suzman Memorial Lecture: A forum for reason: reflections on the role
and work of the Constitutional Court’ (2012) 28 SAJHR 116.
• Moseneke, D ‘Remarks: The 32nd Annual Philip A Hart Memorial Lecture: A journey from
the heart of Apartheid darkness towards a just society: salient features of the budding
constitutionalism and jurisprudence of South Africa’ 101 (2013) Georgetown Law Journal
749.
• Roux, T ‘The Constitutional Court’s 2018 Term: Lawfare or Window on the Struggle for
Democratic Social Transformation?’ (2020) 10 Constitutional Court Review 1-42
[Link]
• Powell, CH ‘Judicial Independence and the Office of the Chief Justice’ (2019) 9
Constitutional Court Review 497-519 [Link]
content/uploads/2021/02/CCR_9_2019_0019.pdf
• Holness, W ‘Employment equity and elimination of discrimination: where are women with
disabilities in the hierarchy?’ (2016) (30(1) Agenda 49-64. (on transformation in the
judiciary/magistracy in relation to disability)
• Durojaye, E & Agaba, DK ‘Contribution of the Health Ombud to Accountability: The Life
Esidimeni Tragedy in South Africa (2018) 20(2) Health and Human Rights Journal 161.
[Link]
• Justice of the Constitutional Court v Judge President MJ Hlophe Judicial Conduct Tribunal
Decision
[Link]
Hlophe_JP.pdf
• Report of the Judicial Conduct Tribunal In re: Judge NJ Motata
[Link]
[Link] [See Freedom Under Law v Motata (33227/2020) [2021] ZAGPPHC 14 (28
January 2021)[Link] ]
• Office of the Health Ombud The Report Into The ‘Circumstances Surrounding The Deaths
Of Mentally Ill Patients: Gauteng Province’ No Guns: 94+ Silent Deaths And Still Counting
[Link]
• Life Esidimeni Arbitration Award [Link]
[Link]
• Marikana Commission of Inquiry (Farlam) [Link]
• State Capture Commission of Inquiry (Zondo) [Link]
• Arms Commission of Inquiry (Seriti) [Link]
Cases:
• Singh v Minister of Justice and Constitutional Development and Others (SA National
Council for the Blind and another as Amici Curiae) (2013) 34 ILJ 2807 (EqC)
[Link]
• South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) BCLR
77 (CC) [Link]
• Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2009
(6) SA 94 (CC) [Link]
• Van Rooyen and Others v The State and Others (General Council of the Bar of South
Africa Intervening) 2002 (5) SA 246 (CC)
• Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC)
(Glenister I) [Link]
• Glenister v President of the RSA 2011 (3) SA 347 (CC) (Glenister II)
[Link]
• Justice Alliance of South Africa v President of the Republic of South Africa and Others 2011
(5) SA 388 (CC) [Link]
• Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA
248 (CC) (Simelane decision) [Link]
• NDPP v Zuma 2009 (2) SA 277 (SCA) [Link]
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• Cape Bar Council v Judicial Services Commission and Others 2012 (4) BCLR 406 (WCC)
[Link]
• Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA
170 (SCA) [Link]
• Helen Suzman Foundation v Judicial Services Commission and Others 2015 (2) SA 498
(WCC) [Link]
• Judge President Hlophe v Premier, Western Cape 2012 (6) SA 13 (CC) (Hlophe Saga 1)
[Link]
• Acting Chairperson: Judicial Service Commission & Others v Premier of the Western Cape
Province [2011] 3 All SA 459 (SCA) (Hlophe Saga 2)
[Link]
• Freedom Under Law v the Acting Chairperson: Judicial Service Commission, and Others
2011 (3) SA 549 (SCA) (Hlophe Saga 3)
[Link]
• Nkabinde and Another v Judicial Service Commission and Others 2016 (11) BCLR 1429
(CC) (Hlophe Saga 4) [Link]
• Economic Freedom Fighters v Speaker of the National Assembly and Others: Democratic
Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC) (Nkandla
judgment 1). [Link]
• Economic Freedom Fighters v Speaker of the National Assembly and Another 2018 (2) SA
571 (CC) (Nkandla judgment 2). [Link]
• United Democratic Movement v Speaker of the National Assembly 2017 (5) SA 300 (CC)
[Link]
• Corruption Watch and Another v Arms Procurement Commission and Others 2020 (2) SA
165 (GP). [Link]
• President of the Republic of South Africa v South African Rugby Football Union 2000 (1)
SA 1 (CC) [Link]
• Magidiwana v President of the Republic of South Africa (Black Lawyers Association Amicus
Curiae) 2013 (11) BCLR 1251 (CC) [Link]
• Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector including Organs of State v Zuma 2021 (5) BCLR
542 (CC) [Link]
bin/[Link]?file=za/cases/ZACC/2021/[Link]&query=Zondo%20commission%20appointmen
t
• President of the Republic of South Africa v Office of the Public Protector and Others 2018
(2) SA 100 (GP) [Link] (And see the
appeal of the costs order in Zuma v Office of the Public Protector and Others (1447/2018)
[2020] ZASCA 138 (30 October 2020) [Link]
Legislation:
• South African Judicial Education Institute Act 14 of 2008
• Magistrates’ Courts Act 32 of 1944
• Judicial Service Commission Act 9 of 1994 (as amended particularly in 2008)
• Traditional Leadership and Governance Framework Act of 2004
• Commissions Act 8 of 1947
11. National Prosecuting Authority: Ms Simone Gray
Content:
• Constitutional basis
• Independence
• Appointment, role and dismissal of NDPP
• Recent controversies
Constitution, Legislation and Literature:
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• Section 179 of the Constitution
• National Prosecuting Authority Act 32 of 1998
• De Vos (2021) p 272 – 280.
Cases:
• Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC)
(Simelane decision) [Link]
• Minister for Justice and Constitutional Development and others v Moleko 2009 (2) SACR
585 (SCA) (para 18) [Link]
• National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
[Link]
• Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC).
[Link]
• Pikoli v President and Others 2010 (1) SA 400 (GNP)
[Link]
• National Director of Public Prosecutions v Freedom Under Law 2014 (4) SA 298 (SCA)
[Link]
• Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v
General Council of the Bar of South Africa 2019 (1) SA 130 (SCA)
[Link]
• Corruption Watch NPC and Others v President of the Republic of South Africa and Others;
Nxasana v Corruption Watch NPC and Others 2018 (10) BCLR 1179 (CC)
[Link]
• Schönteich, M. ‘The National Prosecuting Authority, 1998-2014’ (2014) 50 SA Crime
Quarterly, 05-15. [Link]
• Maqutu, L ‘When the judiciary flouts separation of powers: Attenuating the credibility of the
National Prosecuting Authority’ (2015) 18(7) Potchefstroom Electronic Law Journal
DOI: 10.4314/pelj.v18i7.08
12. Chapter Nine Institutions: Ms S Gray
Content:
• Powers and functions of of Chapter Nine Institutions
• Mandate of differenct Chapter Nine Institutions
Constitution and Literature:
• De Vos (2021) p 283 - 300
• Chapter 9: State Institutions supporting constitutional democracy - Constitution of the
Republic of South Africa, 1996
• Commission on Gender Equality Act 39 of 1996
• South African Human Rights Commission Act 14 of 2013
• Public Protector 23 of 1994
• Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
• Govindjee, A et al Introduction to Human Rights Law (Lexis Nexis, 2016) Chapter 24 Non-
judicial enforcement of human rights
• Govender, K and Swanepoel, P ‘The Powers of the Office of the Public Protector and the
South African Human Rights Commission: A Critical Analysis of SABC v DA and EFF v
Speaker of the National Assembly’ (2020) 23 Potchefstroom Electronic Law Journal DOI
[Link] 3781/2020/v23i0a6249
• Commissioner for Children, Western Cape [Link]
commissioner/
14
Cases:
• The Public Protector v Mail & Guardian Ltd and Others 2011 (4) SA 420 (SCA)
[Link]
• South African Broadcasting Corporation Ltd and Others v Democratic Alliance and Others
[2015] 4 All SA 719 (SCA) 2016 (2) SA 522 (SCA)
[Link]
• Economic Freedom Fighters v Speaker of the National Assembly and Others: Democratic
Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC) (Nkandla
judgment 1) [Link]
• Minister of Home Affairs and Another v Public Protector of the Republic of South Africa
2018 (3) SA 380 (SCA) [Link]
• The Public Protector v South African Reserve Bank 2019 (9) BCLR 1113 (CC)
[Link]
• Democratic Alliance v Public Protector; Council for the Advancement of the South African
Constitution v Public Protector 2019 (7) BCLR 882 (GP) & cost order judgment: [2019]
ZAGPPHC 349 [Link]
• Public Protector and Others v President of the Republic of South Africa and Others (CCT
62/20) [2021] ZACC 19 (1 July 2021) [Link]
• City of Cape Town v South African Human Rights Commission and Others Case No:
5633/2020 WCHC (unreported)
• Speaker of the National Assembly v Public Protector; Democratic Alliance v Public
Protector 2022 (3) SA 1 (CC)
CONSTITUTIONAL LAW 2023 - semester 2
LECTURE ALLOCATIONS
Week Date Topic Lecturer
1 24/07 Introduction PS
Terminology
Constitutions and Constitutionalism
2 31/07 South African Constitutional History – Foreign PS
South African Constitutional History – local
3 07/08 Drafting of the Constitution & Certification Process PS
4 14/08 Basic Features of the 1996 Constitution SG
Electoral Systems
5 21/08 The Structure of States – incl SA RM
Legislative Authority
6 28/08 Legislative Authority RM
7 04/09 Legislative Authority RM
8 11/09 Executive Authority SG
9 18/09 Executive Authority SG
23/9-01/10 MID-TERM BREAK
10 02/10 Judicial Authority SG
11 09/10 Judicial Authority SG
12 16/10 Chapter Nine Institutions SG
NPA
13 Revision
7. ASSESSMENT
This course will be assessed in the manner outlined below.
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7.1 Semester Mark
The semester mark comprising 30% of the total marks for the module shall be generated by the
average mark derived from two tests, both of which are compulsory:
(a) A 60 minute test to be written on 15 September (08h30-09h30).
This will consist of a combination of one or more of the following: essay, short answer, multiple
choice and problem-type questions and is designed to assess your understanding of the
concepts. Superficial knowledge will be inadequate. The test constitutes 15% of the final mark.
(b) A 60 minute test to be written on 20 October (08h30-09h30).
This will consist of a combination of one or more of the following: essay, short answer, multiple
choice and problem-type questions and is designed to assess your understanding of the
concepts. Superficial knowledge will be inadequate. The test constitutes 15% of the final mark.
(c) Two 60 minute ‘aegrotat’ tests to be written on 30 October (17h00-18h00 and 18h00-
19h00).
Provided they attempt only one of the ‘main’ tests, students may choose to take the substitute test
at their discretion and no reasons will be required. Nevertheless, students must make application
to write the test, otherwise they will not be permitted to do so.
7.2 Final Examination
This will comprise a standard three hour examination to assess your understanding of the various
subject areas covered in the course. It will consist of a combination of multiple choice, essay,
short answer, and problem type questions. The examination generates 70% of the final mark.
8. WORK LOAD / STUDY PLAN
The weighting for this course is sixteen credit points. In terms of the SAQA rules, each point
allocated to a course represents ten notional work hours. This means that in order to perform
satisfactorily in this course, students must spend a total of one hundred and sixty hours work on
constitutional law (16 pts x 10 hours=160) during the semester.
If one subtracts the test, consultation and tutorial time from this total it amounts to about 11 hours a
week of your own research and study over a 13 week semester. Unless you are putting this
amount of time into this module, you cannot expect success.
11. STUDENT SUPPORT
For information regarding student support services and the Disability Support Unit, see the
document which is posted separately on the module Moodle/Learn site
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