Study Unit 1: The Separation of Powers

Doctrine
1 SEPARATION OF POWERS

1.1 THE PURPOSE AND PRINCIPLES OF THE DOCTRINE OF THE SEPARATION OF POWERS
• Fundamental, the separation of powers doctrine (“SOP”) seeks to constitutionally
restrict the exercise of public power.
• SOP limits the powers of each individual branch of government. (Legislature, Executive,
Judiciary.)
• SOP is the basis for an institutional division of public power so that the abuse of public
power by government is curtailed and power is exercised wisely.
• The Constitution makes no express mention of SOP, however Constitutional Principle VI
in the interim Constitution required that the final Constitution incorporate a SOP between
the three branches of government as well as the appropriate checks and balances on the
exercise of power of each of these branches.
• Distribution seeks to limit the overconcentration of power in any one branch, and also to
create some level of exclusiveness/specialisation of functions in each of the branches.
• Four principles that make up the modern concept of the doctrine:
i. Trias politica → separation of powers across three branches.
ii. Separation of functions
iii. Separation of personnel
iv. Checks and balances

Legislature Executive Judiciary

Function Enact law + hold the Make policy + implement Interpret and adjudicate
executive accountable and administer law + make legal disputes + declare
crucial appointments invalid or acts contravening
the constitution

Personnel Members of Parliament Cabinet: President, Deputy Judges and magistrates

President, ministers and
their departments.

• No constitutional system encompasses a full separation of government authority where

power is exercised by each individual branch of government in isolation from the others.

1.2 A BRIEF HISTORY OF THE DOCTRINE OF THE SEPARATION OF POWERS

• Development of doctrine must be seen against history of absolute monarchy that existed
in Europe → 17th century.
• Initially conceived as a reaction to absolute power of monarchs.
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• Core of development → prevention of over-accumulation of power in one institution.

• John Locke:
o Modern concept of doctrine emerged as a model to explain the English
constitutional model developed by Locke.
o His writing emerged in wake of constitutional developments that ended the
absolute power of the monarch.
o Did not want absolute power of monarchy to be replaced with absolute
parliamentary power.
o Locke didn’t envisage the separation of powers between executive & judiciary →
task fell to Charles Baron de Montesquieu.

• Montesquieu
o Devised modern concept of doctrine as we know it today → trias politica.

• The earliest expression of the modern concept of doctrine was found in the US
Constitution.

1.3 SEPARATION OF POWERS: THE SOUTH AFRICAN EXPERIENCE

1.3.1 Introduction
• In interpreting the SOP in the South African context, it is clear that the CC is reluctant to
measure the South African model against the standards of other countries’ models.
• We must interpret as judge our model of SOP with out own historical context in mind.
• Constitution does not explicitly provide for the SOP; however, the CC has held that
implicit provisions carry just as much force as explicit ones,
• We can infer the implicitness of the doctrine by the way in which governmental power is
distributed between the legislature, executive and judiciary, through the provisions in the
Constitution.

1.3.2 The legislature

• Bicameral Parliament → consists of two Houses: National Assembly (NA) and National
Council of Provinces (NCoP.)
• The Constitution does not provide for a strict SOP between the legislature and the
executive.
• First, while it establishes that Parliament is the distinct legislative branch with its
particular function of lawmaking and its own personnel, it also makes provision for
executive involvement in the performance of the legislative functions (→ functional
overlap.)
• Second, there is an overlap in personnel between the executive and legislature, with
Cabinet (excluding the President + two other members) being required to also serve as
members of the NA.
o The close involvement of the executive in the legislative process, could be argued
to promote efficiency and accountability between the two branches.
o MPs don’t always have the expertise to make complex decisions on specialised
topics.

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o = rely on the executive to formulate policy and to translate policies into draft
legislation that is scrutinised by the legislature.

• CC has ruled that Parliament can’t delegate its plenary powers to make/amend statute
to the executive branch → would be a breach of SOP.
o Plenary powers → full and complete powers to act on a matter, without needing
permission.
o E.g., Parliament has plenary powers to make laws or take action in that regard,
they have full authority (subject to the Constitution.)

1.3.3 The executive

• Constitution vests executive authority in the President as both Head of State + head of
the national executive,
• Executive is responsible for the development, preparation and implementation of
national policy and legislation, as well as coordinating the functions of state departments
and administration.
• Executive consists of Cabinet → President, Deputy President (DP), Ministers.
• President has power to appoint and dismiss the other members of Cabinet.
• Members of Cabinet are accountable collectively and individually to Parliament
(although according to S 55(2), this power primarily resides with the NA.)
• Cabinet must provide full and regular reports concerning matters under their control.
• Beyond this, Constitution confers ultimate checking power on the NA, by giving it the
power to remove or recall the executive (S89 + S 102.)

1.3.4 The judiciary

• Unlike the executive and legislature, there is an absolute separation in powers +
personnel of the judiciary and the other branches.
• The primary function of the courts is the adjudication of legal disputes, including the
interpretation and application of the Constitution.
• The courts have the power to declare any legislation or conduct unconstitutional and
invalid → this means that the courts have enormous power to check the exercise and
abuse of power by the other two branches of government.
o (This is called judicial review.)
• Judicial independence is a fundamental concept of constitutionalism as pertains to the
functioning of the courts + an essential requirement for the functioning of SOP.
• Constitution demands that courts shall be independent and subject only to the
Constitution, and must exercise their power without fear, favour or prejudice.
• = Courts create a prohibition on the interfering with the functioning of the courts.
• NB element of judicial independence relates to the independence of the judges.
o Constitution provides for such independence by guaranteeing judges’ security of
tenure and their salaries and benefits which may not be reduces as long as they
remain in office.

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1.3.5 Checks and balances

Checks Legislature Executive Judiciary
Legislature The executive checks the The judiciary checks the
legislature by: legislature by:
• Developing and • Invalidating laws
implementing policy. enacted by the
• Preparing and initiating legislature that do not
legislation. comply with the
• Making subordinate Constitution.
legislation. • Ensuring that the
• Assenting to Bills passed legislature complies with
by the legislature. the procedural
requirements prescribed
in the Constitution.

Executive The legislature checks the The judiciary checks the

executive by: executive by:
• Requiring all members to • Invalidating acts by
provide full and regular members of the
reports concerning executive that do not
matters within their comply with the
control. Constitution.
• Appointing the • Ensuring that it fulfils its
President. constitutional
• Removing/recalling obligations diligently and
national executive without delay.
members.
• Approving the extension
of states of emergency.

Judiciary The legislature checks the The executive checks the

judiciary by: judiciary by:
• Indirectly taking part in • Taking part in the
the appointment of appointment of judges
judges through selected as some of its members
representatives on the sit on the JSC which
JSC. appoints judges.
• Taking part in the • Formulating legislation
removal of judges, who, to respond to judicial
before the end of their decisions (structured
designated tenure, are dialogue.)
proven to be suffering
from incapacity or have
been found guilty of
gross incompetence or
gross misconduct.
• Passing legislation to
respond to judicial
decisions (structured
dialogue.)

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1.3.6 The counter-majoritarian dilemma

• The judiciary is independent and empowers to review and set aside the actions of the other
two branches of government. Naturally, this means that the judiciary has enormous power,
even though its members are not democratically elected.
• So, the primary question is, if we accept judicial review as being a legitimate practice in a
constitutional democracy, how do we account for the fact that judicial review allows for the
invalidation of laws supported by the majority?
• What makes the decision of a few unelected judges carry more weight than the choices of
the majority?
• = essence of the dilemma is that judicial review involves the courts taking undemocratic
decisions that often go against the popular will.
• The fact that the Constitution makes explicit provision for judicial review is important, as it
confirms that the democratically elected constitutional assembly freely chose a system of
judicial review, thus bestowing some democratic legitimacy on the process of judicial review.
• However, how do we ensure that the courts perform judicial review in a manner that balances
the need to promote and respect the majoritarian nature of our democracy while at the same
time ensuring that the Constitution’s transformative vision is enforced?
• Given that the enforcement of the Constitution via judicial review necessarily entails judicial
interpretation, it becomes important how judges make their decisions and whether they are
possibly influenced by their own political, religious, moral or cultural viewpoints.
• Most NB question → what is the justification of the inclusion of judicial review in South
African constitutionalism, considering the curtailment of democracy it necessarily entails?
o It’s necessary to concede that due to the nature of judicial review, it can never be
fully reconciled with a purely majoritarian concept of democracy.
o Thus, if we accept that the judiciary is to play a legitimate part in upholding the
Constitution, we must be able to justify why important decisions should be left in
the hands of a relatively few unelected judges whose decisions are not
necessarily wiser, more principled or moral than those of the majority in a
democracy.

• There are three main arguments that have been put forwards in support of judicial review:
1. While judicial review does tend to diminish democracy from a majoritarian point of view,
democracy, when viewed substantively, is never simply majority rule. While the elected
representatives of the political majority must exercise pollical power, this does not give
them free reign to govern in whichever way they please. There are mechanisms in place
to regulate and limit the exercise of power. Subsequently, the argument is that where all
people enjoy the same rights in a democracy, all people are entitled to be treated equally
irrespective of whether they are part of the majority or not.
2. The judiciary is ideally positioned to decide on disputes and matters of principle, because
of the specialised nature of judges’ adjudicative expertise and the judiciary’s detached
institutional positioning and its entrenched independence. Subsequently, the argument
is that the courts are stronger and better positioned since they do not have to pander to
the demands that may be placed on the other branches by an electorate.
3. The courts can be seen as a forum that can actually enhance democracy, particularly
deliberative democracy. Subsequently, the argument is that the courts provide an
important platform where citizens may challenge the decisions or actions of their elected
representatives.

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• There appears to be some acceptance that for constitutional democracy to flourish, it is

sometimes necessary to employ some outwardly undemocratic means to achieve long-term
democratic ideals.

2 A NEW DEMOCRATIC CONSTITUTIONAL DISPENSATION WITHIN A

SYSTEM OF SEPARATION OF POWERS
• The Constitution is structured in such a way that different chapters are dedicated to the
different branches of government.
o Chapter 4 → legislative authority.
o Chapter 5 → executive authority.
o Chapter 8 → judicial authority.

• Thus, although the doctrine of SOP is never directly mentioned in the Constitution, it remains
firmly entrenched.
• Doctrine requires the judiciary to check whether the other branches comply with the law and
exercise their authority in conformity with the Constitution.
• Courts must exercise this task while remaining conscious of the limits on judicial authority.
• = the judiciary must not interfere in the processed of other branches of government unless to
do so is mandated by the Constitution.

Prescribed case law

First Certification Judgement
• An objection was taken to a provision of the NT that were said to violate Constitutional
Principle VI, that provides for the separation of powers.
• “There shall be a separation of powers between the legislature, executive and judiciary,
with appropriate checks and balances to ensure accountability, responsiveness and
openness.”
• The objection was taken to the provision of the NT which provide for members of the
executive to also be members of legislatures at all three levels of government, and that
failure to effect a full separation of powers enhances the power of the executive
government.
• = thus, the complaint was that Cabinet members who continue to serve in Parliament, are
able to exercise powerful influence over the decisions of the legislature, and this is
irreconcilable with the SOP doctrine.
• The objector cites the USA, France, Germany and the Netherlands as examples of models
of SOP that provides for a complete separation between the legislature and executive.
• The Court however contended that there is no objective model of SOP, and in democratic
systems of government in which checks and balances result in the imposition of restraints
by one branch upon another, there is no separation that is absolute.
• No constitutional scheme can reflect a complete SOP; the scheme is always one of partial
separation.
• As the SOP is not a rigid constitutional doctrine, it is given expression in many different
forms and made subject to checks and balances of many kinds.

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• = failure in the NT to completely separate the functionaries of the executive and legislature
is destructive of the doctrine → the overlap provides a singular important check and
balance on the exercise of executive power, because it makes the executive more directly
answerable to the elected legislature.
• The model adopted by the Constitutional Assembly reflects the historical circumstances
of our constitutional development.
• Checks and balances are provided that evidence a concern for both the over-
concentration of power and the requirement of an energetic and effective, yet answerable
executive.
• Concludingly, what the CP VI requires is that there be a SOP between the legislature,
executive and judiciary, but it does not prescribe what form the separation should take,
and it should not be interpreted with technical rigidity.

South African Association of Personal Injury Lawyers v Heath

• In the case of South African Association of Personal Injury Lawyers v Heath, the appellant
contested the constitutionality of certain provisions of the Special Investigating Units and
Tribunals Act.
• The Act established a Special Investigating Unit (SIU), headed by a High Court judge, to
address corruption and recover losses suffered by the State.
• The appellant argued that the SIU's powers were intrusive and violated privacy, bringing
the matter to the Constitutional Court.
• Three main issues were raised:
1. the appointment of a judge as head of the SIU,
2. the scope of the SIU's investigation powers,
3. and the consistency of those powers with the right to privacy.

• The Constitutional Court held that while judges could perform executive functions, there
were limits to ensure judicial independence.
• The Court declared the provision appointing a judge as head of the SIU invalid to protect
the judiciary's independence.

Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v
Public Protector and Others
Facts of the case:
Parliament adopted rules under section 194 of the Constitution to manage the removal of
heads of Chapter 9 institutions, including the Public Protector. These rules included provision
for an independent panel to assess whether there is prima facie evidence of misconduct,
incapacity, or incompetence.
Rule 129V(1) allows this panel to include a judge, provided the appointment is made in
consultation with the Chief Justice.
The Public Protector challenged this rule in the High Court, arguing that including a judge in a
process initiated and executed by the Legislature violates the separation of powers. The High
Court agreed and ruled the provision unconstitutional.

Appellants’ arguments:
• Speaker of the National Assembly:
• Argued the function of the independent panel is advisory, not judicial. The panel merely
assesses evidence and makes non-binding recommendations.
• Said the judge’s inclusion does not usurp judicial functions, nor does it threaten the
judge’s independence.

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• The consultation with the Chief Justice provides an internal safeguard against any
improper use of judicial officers.

• Democratic Alliance:
• Emphasized the value of judicial independence and legal expertise.
• Pointed out that judges often serve in non-curial roles (e.g., commissions of inquiry) and
that the judiciary’s skill set suits this task.

Conclusion of the Court:

• The Constitutional Court upheld the appeal on this issue and reversed the High Court’s
finding.
• The Court ruled that appointing a judge to the independent panel is constitutionally valid.
It does not breach the separation of powers, since:
o The judge plays a limited, advisory role,
o The appointment involves the Chief Justice, and
o The function is compatible with judicial office.

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Study Unit 2: The National Legislature

1 INTRODUCTION
• In this unit we focus on the structure, composition, functions, powers, duties and
procedures of Parliament.
• Parliament is responsible for:
1. Articulating the aspirations, concerns and desires of all South Africans, especially of
the poorest 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.
4. Considering, passing, amending or rejecting legislation on any subject that falls
within its legislative authority.

2 THE STRUCTURE AND COMPOSITION OF PARLIAMENT

2.1 THE STRUCTURE OF PARLIAMENT

• Parliament is a bicameral legislature.
• = two houses, the National Assembly (NA) and the National Council of Provinces (NCoP.)
• The two houses represent different interests and act as a check on one another.
• Main justification of bicameralism → ensures adequate democratic representation of
different interests.
o NA → interests of the people.
o NCoP → interests of the provinces.

• The members of each House are elected or appointed in different ways:

o NA → elected directly via their respective political parties in an election.
o NCoP → delegates are indirectly elected via the provincial legislatures.

• NA = politically dominant House.

o The NA elects and can also dismiss the President.
o All but two members of the Executive must be selected from the NA.
o The NA must hold all executive organs of state in the national sphere of
government accountable to it.
o The NA must maintain oversight of the exercise of national executive authority,
including the implementation of legislation.
o The NA plays a decisive role in various other appointments, e.g., the
Commissioners of the Chapter 9 institutions.

• 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.
• Seat of Parliament = Cape Town.

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• Act of Parliament can determine that the seat of Parliament is changed as long as the
correct procedure is followed.
• Sittings of the NA + NCoP are permitted at places other than the seat of Parliament, but
only on the grounds of public interest, security or convenience.

2.2 THE ROLE OF POLITICAL PARTIES

• NB → the democratic link between voters and the legislature is mediated through
political parties.
• The Constitution establishes a parliamentary system of government in which the majority
party in the NA forms the government AND ALSO a system of party government.
• Party government → 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.
• Despite the important role played by political parties, 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.
• However, the CC confirmed in UDM v Speaker of the NA and Others, that when a conflict
arises for members of the legislature between upholding constitutional values, on the
one hand, and party loyalty on the other hand, Members of Parliament (MPs) have an
irrevocable duty to serve the people and do only what is in their best interest.
• Despite the CC’s view in the UDM judgement that MPs need to serve the people above
their party, political parties and their leaders still hold enormous power over elected
members of the legislature. There are four interrelated reasons for this:
1. The government relies on the support of the majority party in Parliament to remain in
power. MPs must align with their party’s decisions, as failing to do so could cause the
government to lose a vote and risk falling, which erodes its democratic legitimacy.
2. Strict party discipline → The Westminster system enforces strict party discipline,
requiring MPs to adhere to the party's decisions in legislative and executive matters.
This convention was retained in South Africa's democratic system, ensuring unity
within the party but limiting individual MPs' freedom to act against the party's stance.
3. Political parties place significant value on internal party discipline → MPs who
demonstrate loyalty and respect for party leadership are rewarded. This culture can
sometimes be compared to democratic centralism, where decisions are final once
made, and members must comply without criticism.
4. The electoral system in South Africa further strengthens party control, as MPs rely on
their party’s support to get elected and remain in office. This system means MPs must
follow the party's directives, especially when a clear position has been taken, limiting
their ability to act based on personal opinion.

• NB to understand the delicate and sometimes complex relationship between members

of the legislature, their respective political parties and the members of the executive in
order to understand the practical day-to-day functioning of the legislature.

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3 GENERAL RULES REGARDING THE OPERATION OF PARLIAMENT

3.1 INTRODUCTION
• NA + NCoP have the power to determine and control their own internal arrangements,
proceedings and procedures.
• Constitution authorises the Houses to make joint rules and orders concerning their joint
business.
• Constitution also authorises the Houses to make rules separately regarding their own
operations.
• Constitution requires the Houses to make rules and orders to provide for the
composition, powers and functioning of committees.
• When Parliament exercises this power, it must give effect to the provisions to the
Constitution.
• = CC has ruled that 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 and their committees have wide-ranging powers and can summon any
person to appear before them to:
i. Give evidence under oath or affirmation, or to produce documents.
ii. Require any person or institution to report to it.
iii. Compel, i.t.o. national legislation or the rules and orders, any person or
institution to comply with a summons or requirement to produce documents.
iv. Receive petitions, representations or submissions from any interested persons
or institutions.

• = clear that Houses have wide powers to fulfil their mandates.

• However, there are three distinct ways in which these powers are curtailed by the
Constitution.
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 + Cabinet members who appear before them enjoy certain
privileges which cannot be curtailed by Parliament or anyone else.
3. Both Houses are required to facilitate public involvement in their legislative and other
processes.

3.2 OPENNESS AND TRANSPARENCY IN PARLIAMENT

• The Constitution requires both Houses to conduct their business in an open manner and
hold their sittings and those of their committees in public.
• = 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.’
• However, reasonable measures may be taken to regulate public access, including
access of the media, to Parliament and its committees.
o Where appropriate, the refusal of entry or the removal of any person from the
precinct is also allowed.

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• The test to be applied to determine whether the regulation of access to Parliament is

reasonable (and therefore Constitutionally permissible) ‘is not only whether the
limitation is proportionate to the end sought to be achieved, but also whether other
measures would better achieve the end, or would do so without limiting others’ rights.’
• The Houses are further explicitly prohibited from excluding the public, including the
media, from a sitting of a committee unless it is reasonable and justifiable to do so in an
open and democratic society.
• = conclusion on this is thus that neither House may conduct their sittings or business in
secret, nor may members of the public be prevented from attending them.

3.3 THE POWERS AND PRIVILEGES OF MEMBERS OF PARLIAMENT

• The power of Parliament to determine its own procedures is also limited by the privileges
conferred on Cabinet Ministers, Deputy Ministers and members of the NA + NCoP of
freedom of speech and freedom from civil or criminal proceedings, arrest, imprisonment
or damages for anything they have said or done in the NA or NCoP or one of their
committees.
• Parliamentary privilege is based on the notion that MPs 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 legally liable for what they say.
• Given that the Constitution establishes a constitutional democracy and entrusts the
judiciary with the power to enforce the Constitution, these privileges to do not preclude
the judiciary from enquiring into whether these procedures or limitations adopted by
Parliament in this regard comply with the various provisions of the Constitution.

Prescribed case law: Rules regarding the operation of Parliament

Democratic Alliance v Speaker of the National Assembly and Others
Facts of the case:
The case involved the DA challenging the National Assembly’s failure to hold the President
accountable after the Constitutional Court’s judgment in EFF v Speaker (2016), where it was
declared that President Zuma had failed to uphold the Constitution by ignoring the Public
Protector’s Nkandla report.
One of the central themes raised in this matter was the scope and function of parliamentary
privileges, especially freedom of speech within the National Assembly, as protected by section
58 of the Constitution.

Nature and purpose of parliamentary freedom of speech:

• S 58(1) of the Constitution grants members of the NA freedom of speech in the House
and its committees.
• It’s an absolute right, MPs cannot be sued or prosecuted for anything they say during
proceedings.
• It’s not for the personal benefit of the MPs, but serves the purpose of ensuring
transparent debate, allows effective oversight of the executive, and to maintaining
accountability within government.
• The Court thus affirmed that freedom of speech in Parliament is critical to fulfilling
Parliament’s constitutional duties.
• It reinforced that accountability mechanisms lose their power if MPs can’t speak freely
and honestly.

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Mogale v Speaker of the National Assembly

Facts of the case:
The applicants challenged the constitutionality of the Traditional and Khoi-San Leadership Act
3 of 2019 (TKLA), arguing that Parliament and the provincial legislatures failed to meet their
constitutional duty to facilitate public involvement, as required by sections 59(1)(a), 72(1)(a),
and 118(1)(a) of the Constitution.

Rules and constitutional obligations of Parliament:

Public Participation Is a Constitutional Requirement:
• Parliament (the National Assembly and NCOP) and the nine provincial legislatures
have a legal duty to facilitate reasonable public participation in legislative processes.
This obligation arises from:
• Section 59(1)(a) – National Assembly
• Section 72(1)(a) – National Council of Provinces (NCOP)
• Section 118(1)(a) – Provincial Legislatures

Purpose of public participation:

• Upholds participatory democracy.
• Enhances citizen dignity, especially for historically marginalised communities.
• Ensures legitimacy and responsiveness of laws.

Standards for public participation (as per Parliament’s own guidelines and the Court):
Parliament’s own documents:
• Public Participation Framework and Practical Guide:
• Notices must be given well in advance (5 weeks or minimum 7 days)
• Bills should be translated into local languages
• Pre-hearing education must be done
• Adequate transport should be provided
• Participation must be inclusive and properly recorded

Court's test for reasonableness (from Doctors for Life and others):
• Is the legislation significant or controversial?
• Were public hearings adequately advertised?
• Were they accessible (in language, location, and timing)?
• Could participants influence the legislative process?
• Did Parliament properly consider public submissions?

Findings: how parliament fell short

1. Inadequate notice and access:
• Many public hearings were poorly advertised, often only by word of mouth
• Sometimes notice was given just a day or two before
• Hearings were held in inaccessible locations without proper transport

2. Poor pre-hearing education:

• Communities were not informed about the Bill’s purpose
• Some thought they were attending events about service delivery or unrelated topics

3. Language and documentation issues:

• Bills were often not provided, or only in English
• No summaries or translations in local languages

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• Misrepresentations of the Bill's purpose—often told it was only about recognizing Khoi-
San leaders

4. Biased facilitation:
• Traditional leaders prioritized; ordinary citizens sidelined
• Some citizens prevented from speaking or cut short
• Sessions were rushed or abandoned, especially when certain groups (e.g., traditional
leaders) were absent

5. Inadequate reporting of hearings:

• Many public comments were not recorded accurately or were left out entirely
• Final reports and mandates often did not reflect public input
• The NCOP relied on provincial reports without ensuring their accuracy

Conclusion of the Court:

• Parliament failed to meet its constitutional obligation to facilitate reasonable public
involvement
• The flaws were widespread, systemic, and substantial
• The Court declared the entire Act invalid, but suspended the declaration for 24 months
to allow Parliament to remedy the defects and re-enact the law properly.

3.4 PUBLIC INVOLVEMENTS IN THE LEGISLATIVE AND OTHER PROCESSES OF THE NA AND
THE NCOP
• Constitution establishes a democratic system of government with both representative
and participatory elements.
• Participatory element → requirement that NA + NCoP should facilitate public
involvement in the legislative and other processes of Parliament.
• Democracy can only function optimally if members of the public are informed about the
activities of Parliament and if they are provided with an opportunity to get involved in
those activities.
• = Parliament has taken steps to make its bodies + processes more accessible to the
public and to mobilise the media to provide information to the public about Parliament.
• Parliament can’t pass legislation or engage in other important processes without
considering the need to facilitate public participation.
• Various strategies are used to facilitate public involvement:
i. Lobbying is used by organised groups in civil society to present well-reasoned
arguments to targeted decision makers which may include detailed written
representations outlining the group’s views on a particular issue.
ii. Members of the public can raise issues at the constituency offices of their
elected representatives, who then raise issues in the legislature on their behalf.
iii. Petitions allow individuals or groups to raise issues in a formal way without
having to go through a particular member of the legislature.
iv. Public hearings, which are normally convened by standing committees, afford
the public the opportunity to make a written or oral submission on any matter for
which a public hearing has been convened.

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• The CC has affirmed the principle that where Parliament has failed to take reasonable
steps to facilitate public involvement in the law-making process, it would have failed to
comply with S 59(1) and S 72(1) of the Constitution, and any law enacted in such a
procedurally flawed way would then be null and void.
• What is required will vary from case to case, but the test will be whether the legislature
had acted reasonably or not.
• = ‘Reasonableness is an objective standard which is sensitive to the facts and
circumstances of a particular case.’ → context specific.
• Three factors are used to determine reasonableness:
i. The nature and importance of the legislation and the intensity of its impact on the
public.
ii. What is practically possible, with reference to time and expense, which relate to
the efficiency of the law-making process. (→ the saving of time and money in itself
does not justify inadequate opportunities for public involvement.)
iii. What Parliament itself considered to be appropriate public involvement in the
light of the legislation’s content, importance and urgency.

• Parliament has a duty to provide meaningful opportunities for public participation in the
law-making process AND to take measures to ensure that people have the ability to take
advantage of the opportunities provided.

4 THE NATIONAL ASSEMBLY

4.1 THE COMPOSITION OF THE NATIONAL ASSEMBLY

• The NA consists of 350-400 members elected through an electoral system based on a
national common voters’ roll that is designed to produce proportional representation.
• Members of the NA are elected on the basis of universal adult suffrage, a national
common voters’ roll, regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness.

4.2 THE PARTY PROPORTIONAL REPRESENTATION ELECTORAL SYSTEM

• Prior to the New Nation Movement NPC and Others v President of the Republic of South
Africa and Others judgement, members of the NA were elected in terms of a party
proportional representation electoral system.
• = each political party would nominate a list of candidates in order of preference prior to
an election.
• Voters voted for a political party, not for individual candidates.
• Political parties would be allocated a number of seats in the NA equal to the percentage
of votes they received in the election.
• The party proportional representation electoral system has both advantages and
disadvantages.

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4.2.1 Advantages of the party proportional representation electoral system

1. It reflects the wishes of the voters more accurately than most other electoral systems →
because of the percentage of seats allocated to each party is proportional to the
percentage of votes cast for it.
2. It eliminates the possibility of gerrymandering → when electoral boundaries (voting
districts) are manipulated to favour a political party. Instead of voters choosing their
politicians, politicians choose their voters by artificially drawing constituency boundaries
in such a way that a party is more likely to win.
3. It usually produces more inclusive legislatures and ensure relatively high representation
for marginalised and previously discriminated groups.
4. It limits ‘pork barrel’ politics.
o = when politicians use government money to fund local projects mainly to win
favour and votes in their home areas, not because the projects are necessary.
o In a party proportional representation electoral system, the members of the
legislature do not represent constituencies and will be less tempted to engage in
pork-barrel politics.

5. It’s easy to administer.

4.2.2 Disadvantages of the party proportional representation electoral system

1. It does not create a strong link between voters and their elected representatives. This has
the potential to lead to a lack of responsiveness to the concerns of voters by elected MPs.
In this system the political party (rather than individual MPs) has to account to voters at
the next election. Individual MPs do not lose their seats because of the dissatisfaction of
voters, but because they have lost the support within their political party.
2. It potentially gives too much power to the leaders of a party who may be able to determine
and influence who appears on electoral lists and where on those lists they are ranked.
This means that the leaders of political parties may have a disproportionate influence
over the way in which individual MPs behave.
3. It potentially produces a less effective and stable government, especially where one
political party is not dominant. This is because a single party may not gain an overall
majority in Parliament and will then have to form a coalition government with joint parties.
A coalition government might find it difficult to agree on all aspects of a joint programme
of action.

4.3 NEW NATION MOVEMENT NPC V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
• Despite the fact that the party proportional representation electoral system has been
used in every national election since 1994, it was declared unconstitutional by the CC in
New Nation Movement NPC v President of the Republic of South Africa in 2020.
• The reason for this was because it unjustifiably infringed S 19(3)(b) of the Constitution by
preventing adult citizens from standing for public office as independent candidates.
• The applicants applied for and order declaring S 57A of, Schedule 1A to, the Electoral Act
73 of 1998 to be unconstitutional and invalid on the basis that it infringed on S 19(3)(b) of
the Constitution.
• The appeal (from the HC to the CC) was upheld and the CC found that S 57A read with
Schedule 1A was unconstitutional and invalid.

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• The Court held that this declaration of invalidity would only operate prospectively and not
retroactively.

4.4 THE RIGHT TO VOTE AND THE ELECTORAL COMMISSION

• S 19(3) of the Constitution guarantees the right of every adult citizen to vote.
• In giving effect to the essence of the right to vote, the Constitution established the
Electoral Commission (IEC) in terms of S 181(1)(f).
• The Commission is responsible for managing elections of national, provincial and
municipal legislative bodies in accordance with national legislation.
o = must ensure that those elections are free and fair.
o = must announce declare the results of those elections within a period that must
be prescribed by national legislation.

• The independence of the IEC is explicitly guaranteed in the Constitution.

• Although the IEC is an organ of state as per S 239, the requirement that is must be
independent from the government means that it cannot be a department or
administration within the national sphere of government → otherwise Cabinet will have
authority over it.
• IEC requires both financial and administrative independence.
o Financial independence → requires Parliament to consider what is reasonably
required by the Commission and deal with requests for funding rationally in light
of other national interests.
o Administrative independence → this implies that there will be no control over
those matters directly connected with the functions which the Commission has
to perform under the Constitution and the Electoral Act.

• The right to vote in S 19(2) of the Constitution is unqualified → it cannot be taken away
arbitrarily or in a way that is unreasonable.
• The CC has also considered whether South Africans living abroad have a right to vote →
unanimous decision that they are allowed to vote if they are registered.
• The CC also held in the past that while there may conceivably be situations in which a
person could be deprived of their right to vote, such limitation would have to be justified
by the state.

4.5 ELIGIBILITY FOR THE ELECTION TO THE NATIONAL ASSEMBLY

• A member of the NA will normally serve for a full term of five years until the next election.
• However, a person may lose membership if they are no longer eligible to be a member of
the NA.
• S 47 → a citizen who is qualified to vote for the NA, is eligible to be a member of the NA,
except for those citizens who are appointed by, or are in service of, the state and receive
renumeration for that appointment/service.
• The following citizens are also not eligible to become or remain members of the NA:
o Permanent delegates to the NCoP or members of a provincial legislature or a
municipal council.
o Unrehabilitated insolvents.
o Anyone declared to be of unsound mind by a court.

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o Anyone who, after the Constitution took effect, is convicted of an offence and
sentenced to more than 12 months in prison without the option of a fine, either in
the Republic or outside the Republic if the conduct constituting the offence would
have been an offence in South Africa.

• Moreover, a member of the NA who is absent from the NA without permission in

contravention of the Rules of the NA, or ceases to be a member of the party that
nominated them, will automatically lose their seat in the NA.

4.6 DURATION OF THE NATIONAL ASSEMBLY, SITTINGS AND ITS DISSOLUTIONS

• The NA is elected for a term of five years.
• Two scenarios in which an election can be held before this five-year term has lapsed →
see S 50 of the Constitution.
o S 50(1) → The President must dissolve the National Assembly if – (a) the Assembly
has adopted a resolution to dissolve with a supporting vote of a majority of its
members; and (b) three years have passed since the Assembly was elected.
o S 50(2) → The Acting President must dissolve the National Assembly if – (a) there
is a vacancy in the office of President; and (b) the Assembly fails to elect a new
President within 30 days after the vacancy occurred.

• In both scenarios, the NA must be dissolved, and the President/Acting President must
call and set dates for an election, which must be held within 90 days.
• After election results are finalised, the first sitting of the NA must be held within 14 days
→ President, Speaker & Deputy Speaker will be elected in this sitting.
• The NA may otherwise determine the time + duration of their sittings + recess periods.
• Seat of Parliament = Cape Town, although sittings may be held in some other place on
the grounds of public interest, security or convenience, or in case of an emergency.

In case of emergency → NA Rule 43(1) On grounds of public interest/convenience

→ NA Rule 43(2)
Speaker may, in emergency or on grounds of Speaker may direct that the NA sit at a place
security, direct that the NA sit at a place other other than the Parliament seat in CPT, on the
than the Parliament seat in CPT. grounds of public interest or convenience.
However, such resolution must identify the
public interest or convenience that is reason
for the change of venue and approve the
change of venue to a specified place for a
specified period.

4.7 POWERS AND FUNCTIONING OF THE NATIONAL ASSEMBLY

• S 42(3) of the Constitution prescribes 4 tasks to the NA:
1. Elects the President.
2. Serves as a national forum for public debate and consideration of issues.
3. Passes legislation (with the NCoP).

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4. Scrutinises and oversees executive action, holding the executive accountable.

• The NA can propose, pass, amend, or reject most laws (except money Bills).
• It must provide mechanisms to ensure that all executive organs of state are accountable
to it + maintain oversight of the exercise of national executive authority, including the
implementation of legislation, and any organ of state
• Voting & quorums:
o S 59 of the Constitution.
o 201 members (majority) must be present to vote on a Bill.
o 134 members (one-third) must be present for any other vote.
o Two-thirds vote is needed to impeach the President or amend most of the
Constitution.
o 75% vote is needed to amend Section 1 of the Constitution.
o The Speaker only votes in a tie or in some special majority matters.

• Role of the Speaker:

o Presides over the NA, expected to be impartial and independent.
o Maintains discipline and rules on objections.
o Represents Parliament publicly and administratively.
o Must balance party interests with public interest—cannot act arbitrarily or for
personal/political gain.

• Functioning of the NA:

o Has the power to manage its own procedures and rules (Section 57).
o Members participate in public debates, question Cabinet ministers, and vote on
laws.
o Committees do most of the in-depth legislative and oversight work.

Prescribed case law: Holding the executive accountable

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 [EFF 1]
Legal question:
The legal question in this case is whether the remedial action taken by the Public Protector
against President Jacob Zuma in terms of section 182(1)(c)1 of the Constitution is binding and
whether the President's failure to comply with it is inconsistent with sections 83(b)2, 181(3)3,
and 182(1)(c) of the Constitution.

Facts of the case:

The case concerns allegations of improper conduct or irregular expenditure relating to the
security upgrades at President Zuma's Nkandla private residence. The Public Protector
investigated these allegations and concluded that the President failed to act in line with certain
of his constitutional and ethical obligations by knowingly deriving undue benefit from the
irregular deployment of State resources. The Public Protector took remedial action against the
President, directing him to pay a portion of the costs of the non-security features at his
residence and to reprimand certain Ministers involved in the project. The President failed to
comply with this remedial action, and the National Assembly passed a resolution absolving
him from compliance.

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Ratio decidendi:
The Constitutional Court held that the remedial action taken by the Public Protector against
the President is binding and that his failure to comply with it is inconsistent with sections 83(b),
181(3), and 182(1)(c) of the Constitution. The Court found that the Public Protector's powers
to take remedial action are broad and that the remedial action taken in this case was
appropriate and lawful. The Court also held that the National Assembly's resolution absolving
the President from compliance with the remedial action is inconsistent with sections 42(3),
55(2)(a), and (b), and 181(3) of the Constitution and is therefore invalid. The Court ordered the
President to pay a reasonable percentage of the costs of the non-security features at his
residence and to reprimand the Ministers involved in the project. The Court also ordered the
National Treasury to determine the reasonable costs of these measures and to report back to
the Court within 60 days. The President, the Minister of Police, and the National Assembly were
ordered to pay the costs of the applications.

The Court's decision in this case affirms the powers of the Public Protector to take remedial
action against public officials who fail to comply with their constitutional obligations and
upholds the principle of accountability in public office. The decision also emphasises the
importance of the separation of powers and the role of the National Assembly in holding the
Executive accountable.

Economic Freedom Fighters v Speaker of the National Assembly 2018 [EFF 2]

The central issue revolved around whether the National Assembly (NA) had adequate
mechanisms in place to hold the President accountable under section 89 for impeachment.

Facts of the case:

• The matter stems from President’s Zuma failure to implement the Public Protector’s
remedial actions regarding non-security upgrades to his Nkandla residence.
• The Public Protector’s report directed Zuma to repay a portion of the costs and
reprimand the involved ministers.
• In EFF 1, the CC found that Zuma had violated the Constitution
• Despite this, the NA took no formal steps to hold him accountable under S 89 of the
Constitution.
• Several motions of no confidence and impeachment were brought but failed, largely
due to the ANC majority.
• The applicants argued that Parliament had no clear rules or defined processes for
impeachment under S 89, making accountability impossible.

Majority Judgement by Jaftha J:

• Section 89 allows the President to be removed for serious violation of the
Constitution/law, serious misconduct, or inability to perform functions.
• The Court held that S 89 imposes a duty on the NA to hold the President accountable
when such grounds are alleged.
• This requires a rational and fair process – not a political vote without and investigative
mechanism.
• The NA can’t exercise this power meaningfully without proper rules or procedures in
place.
• Failure to establish such rules is a breach of the Constitution.
• S 42(3) + S 55(2) of the Constitution make Parliament responsible for overseeing the
executive.
• Parliament must have mechanisms that are structured, accountable and transparent.
A mere debate or vote without investigation is inadequate.

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• The failure to establish a process tailored for enforcing impeachment meant

Parliament has failed in its constitutional duty.
• The Court ordered Parliament to make rules for the implementation of S 89 without
delay.
• This remedy meant to ensure future Presidents could be held accountable properly.
• The Court emphasised its role, which is not to dictate how Parliament should fulfil its
duties, but to ensure those duties are fulfilled within constitutional bounds.
• The judiciary’s intervention here was justified because Parliament failed in a clear and
specific obligation.

Dissenting Judgement by Mogoeng CJ:

• Strongly disagreed with the majority, arguing the Court was overstepping and violating
SOP.
• Believed Parliament had multiple tools to hold the President accountable (e.g.,
motions of no confidence, Q&A sessions.)
• Criticised the majority for imposing a judicial standard on a political process.
• Argued that there was no Constitutional requirement for pre-established
impeachment procedures.
• Viewed the judgement as judicial overreach that undermines democratic decision-
making by elected representatives.

Dissenting Judgement by Zondo DCJ:

• Zondo found that Parliament has provided sufficient mechanisms (e.g., ad hoc
committees, no confidence votes.)
• These were flexible and usable, even if not specific to S 89.
• He rejected the notion that special impeachment rules were constitutionally required.
• Disagreed that S 89 required any special procedures beyond the existing ones.
• Emphasised that Parliament had the power and discretion to create ad hoc
mechanisms if needed.
• Believed it was not the Court’s place to tell Parliament what process to use as long as
some processes already existed and was accessible.

United Democratic Movement v Speaker of the National Assembly

Legal question:
Does the Speaker of the National Assembly have the constitutional authority to decide
whether a motion of no confidence in the President can be conducted via secret ballot?

Facts of the case:

• The United Democratic Movement (UDM) sought a vote of no confidence in President
Jacob Zuma.
• The UDM argued that Members of Parliament (MPs) should be allowed to vote by secret
ballot to protect them from political pressure or intimidation.
• The Speaker of the NA claimed that she did not have the authority to permit a secret
ballot.
• The UDM approached the Constitutional Court, seeking clarity on whether the Speaker
had such a power.
Ratio Decidendi:
• The Constitutional Court held that the Speaker does have the discretion to decide
whether a vote of no confidence should be conducted by secret ballot.

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• The Speaker’s discretion must be exercised in a manner that upholds constitutional

values, particularly accountability and the protection of MPs’ ability to vote according
to conscience.
• The Court emphasized that the Constitution does not prohibit a secret ballot and that,
in certain circumstances, it may be necessary to protect MPs from undue pressure.

Order of the Court:

• The Speaker was directed to reconsider the request for a secret ballot based on the
principles set out in the judgment.
• The Court did not order a secret ballot but made it clear that the Speaker could allow
one if circumstances justified it.

Conclusion:
This case reinforced the principle that parliamentary votes, particularly those on motions of
no confidence, must be conducted in a manner that ensures MPs can act independently and
without fear. It clarified that the Speaker has the discretion to permit a secret ballot and must
exercise this discretion in a way that upholds democratic principles.

Mazibuko v Sisulu
Legal question:
The legal question in this case is whether the Speaker of the National Assembly has the
residual power to schedule a motion of no confidence in the President for debate and vote in
the Assembly, in the absence of consensus on the part of the Programme Committee.

Facts of the case:

The case concerns a dispute that arose in the National Assembly over a motion of no
confidence in the President of the Republic. The applicant, Ms Lindiwe Mazibuko, MP, Leader
of the Opposition in the National Assembly, sought an order directing the Speaker of the
National Assembly to take steps necessary to ensure that the motion was scheduled for
debate and vote in the Assembly before 22 November 2012. The Speaker opposed the
application on the grounds that he did not have the power to schedule the debate and vote in
the absence of consensus on the part of the Programme Committee, and that the Assembly
had the authority to override or reverse his decision.

Ratio decidendi:
The High Court held that the Speaker did not have the residual power to schedule the debate
and vote in the absence of consensus on the part of the Programme Committee. The Court
reasoned that Rule 2(1) of the National Assembly Rules did not apply in this case, as there was
a provision dealing with the setting and scheduling of debates in the National Assembly,
namely the rules concerning the Programme Committee. The Court further held that it had no
power to grant a mandamus directing the Speaker to exercise a power he did not have. The
Court also held that there was a lacuna in the Rules that prevented the vindication of the
constitutional right to move a motion of that sort, but that the High Court did not have the
power to decide whether Parliament had failed to fulfil a constitutional obligation under
section 167(4)(e) of the Constitution. That power was vested in the exclusive jurisdiction of the
Constitutional Court.

The Constitutional Court dismissed the appeal, holding that the Speaker did not have the
residual power to schedule a motion of no confidence in the President for debate and vote in
the Assembly, in the absence of consensus on the part of the Programme Committee. The

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Court reasoned that Rule 2(1) of the National Assembly Rules did not apply in this case, as the
task of scheduling motions rested with the Programme Committee. The Court further held that
the Speaker's power to make a ruling on the business of the Assembly was subject to the
overriding authority of the Assembly, which was the ultimate master of its own process,
subject to the caveat that its processes were consistent with the Constitution and the law. The
Court also held that the Assembly's Rules did not provide for a deadlock-breaking mechanism
in the event that the Programme Committee could not arrive at a consensus on tabling the
motion, and that this constituted a lacuna in the Rules. However, the Court held that it did not
have the power to decide whether Parliament had failed to fulfil a constitutional obligation
under section 167(4)(e) of the Constitution. That power was vested in the exclusive jurisdiction
of the Constitutional Court.

The Court further held that the applicant was entitled to advance the limited ground of appeal
that the High Court erred in holding that the first respondent lacked the residual power to
schedule a motion of no confidence if the Programme Committee could not arrive at a
consensus on tabling the motion. The Court reasoned that the Speaker had the residual power
to schedule the motion if the Programme Committee could not arrive at a consensus on tabling
the motion, as the Rules did not provide for a deadlock-breaking mechanism in such
circumstances. The Court further held that the Speaker's power to make a ruling on the
business of the Assembly was subject to the overriding authority of the Assembly, which was
the ultimate master of its own process, subject to the caveat that its processes were
consistent with the Constitution and the law. The Court also held that the Assembly's Rules
did not provide for a deadlock-breaking mechanism in the event that the Programme
Committee could not arrive at a consensus on tabling the motion, and that this constituted a
lacuna in the Rules. However, the Court held that it did not have the power to decide whether
Parliament had failed to fulfil a constitutional obligation under section 167(4)(e) of the
Constitution. That power was vested in the exclusive jurisdiction of the Constitutional Court.

The Court further held that the applicant was entitled to advance the limited ground of appeal
that the High Court erred in holding that the first respondent lacked the residual power to
schedule a motion of no confidence if the Programme Committee could not arrive at a
consensus on tabling the motion. The Court reasoned that the Speaker had the residual power
to schedule the motion if the Programme Committee could not arrive at a consensus on tabling
the motion, as the Rules did not provide for a deadlock-breaking mechanism in such
circumstances. The Court further held that the Speaker's power to make a ruling on the
business of the Assembly was subject to the overriding authority of the Assembly, which was
the ultimate master of its own process, subject to the caveat that its processes were
consistent with the Constitution and the law. The Court also held that the Assembly's Rules
did not provide for a deadlock-breaking mechanism in the event that the Programme
Committee could not arrive at a consensus on tabling the motion, and that this constituted a
lacuna in the Rules. However, the Court held that it did not have the power to decide whether
Parliament had failed to fulfil a constitutional obligation under section 167(4)(e) of the
Constitution. That power was vested in the exclusive jurisdiction of the Constitutional Court.

Conclusion:
In this case, the Constitutional Court held that the Speaker did not have the residual power to
schedule a motion of no confidence in the President for debate and vote in the Assembly, in
the absence of consensus on the part of the Programme Committee. The Court held that the
Programme Committee was the proper body to schedule motions in the Assembly, and that
the Rules did not provide for a deadlock-breaking mechanism in the event that the Programme
Committee could not arrive at a consensus on tabling the motion. The Court further held that

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the Assembly's processes were subject to the overriding authority of the Assembly itself, which
was the ultimate master of its own process, subject to the caveat that its processes were
consistent with the Constitution and the law. Lastly, the Court held that it did not have the
power to decide whether Parliament had failed to fulfil a constitutional obligation under
section 167(4)(e) of the Constitution. That power was vested in the exclusive jurisdiction of the
Constitutional Court.

It is important to note that this case serves as a clear example of the power dynamics between
the executive, legislature, and judiciary in South Africa, as well as the potential lacuna in the
rules governing the functioning of the National Assembly. It is also notable for its reaffirmation
of the importance of the Programme Committee in the scheduling of motions in the National
Assembly.

5 THE NATIONAL COUNCIL OF PROVINCES

5.1 THE COMPOSITION AND FUNCTIONING OF THE NATIONAL COUNCIL OF PROVINCES

• NCoP was created to represent the provinces and ensure that provincial interests are
taken into account in the national sphere of government.
• NB distinction → NCoP is the second chamber in the national Parliament and is NOT one
of the nine provincial legislatures that pass legislation for each of their respective
provinces in the exclusive and concurrent functional areas reserved for them.
• NCoP is composed of a single delegation from each of the nine provinces, each
consisting of ten delegates.
o = total of 90 members.
o The ten positions in a provincial delegation are allocated proportionally to the
various parties represented in the provincial legislature

• The then members are either classified as special or permanent delegates → 4 special
delegates, 6 permanent delegates.
o Four special delegates = Premier + 3 other delegates selected from among the
members of that provincial legislature.
o = they remain members of the provincial legislature, meaning they are
simultaneously members of the provincial legislature AND Parliament acting as
special delegates for a fixed term.
o They are not appointed for a fixed term + the provincial legislature can change the
composition of its special delegates from time to time.

o Permanent delegates = also appointed by the provincial legislatures on the basis

of party affiliation, however they can’t simultaneously be members of the
provincial legislature and permanent delegates to the NCoP.
o Function → they provide continuity and stability to the NCoP by providing a
continuous political presence at the NCoP, ensuring that at least six of the ten
members of each provincial delegation to the NCoP are permanently stationed at
Parliament in Cape Town.

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o They will lose membership of the NCoP if the provincial legislature passes a
motion of no confidence in that delegate or if they are recalled by the party that
nominated them.
o NB → the mere fact that a motion against the permanent delegate has passed is
NOT enough to remove them!! The party that nominated them must ALSO recall
them.

• The powers of the NCoP vary according to the impact of the legislation in question on
provincial concerns and the nature of the legislation being considered.
o If the legislation does not directly affect the provinces, NCoP members each have
an individual vote which they cast in accordance with the wishes of their
respective political parties.
o In all other cases, including when amending the Constitution or dealing with Bills
affecting the provinces, each provincial delegation casts a single vote.

• Unfortunately, the various NCoP delegations have found it difficult to operate effectively,
especially to obtain the requisite mandate from their respective provincial legislatures in
the short time often provided for this task.
• There are a number of reasons for this:
1. The provincial legislative attention is taken up with carrying out mandates imposed
on them from above, and because they are far removed from the centre of political
power in Parliament, they are not equipped in terms of information and expertise to
pass judgement in national legislation and to provide informed mandates to the
respective NCoP delegations. Often, draft Bills are also provided to the NCoP with
little time to respond.
2. NCoP members are supposed to provide a bridge between the national and provincial
legislatures, but their political links with both are often weak and ineffective. The
technical and human resources for close communication are often lacking, with
individual NCoP members commuting between Parliament and remote provincial
capitals. It’s highly unrealistic for provincial legislatures to pay the same attention to
national legislation as the NA does, and it’s far more important for them to be familiar
with the local issues.
3. There is little linkage between the exchange of information and ideas that go on within
the processes of executive intergovernmental relations and exchanges at the
Parliamentary level through the NCoP. Provincial executives take little interest in
NCoP matters.

• Given these practical difficulties + the limited powers and functions of the NCoP, it is
often viewed a the less powerful and influential House.
• This is so because almost all Cabinet Ministers will be members of the NA, while NCoP
members cannot serve as Cabinet Ministers.
• Moreover, unlike the NA, the NCoP is given no clear mandate to hold members of Cabinet
accountable or to maintain oversight over the executive, although the NCoP plays an
important role in the passing of legislation.
• S 69 → Powers given to the NCoP and its committees.

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5.2 PROCEDURES, INTERNAL ARRANGEMENTS AND COMMITTEES OF THE NATIONAL

COUNCIL OF PROVINCES
• Constitution requires the election of a Chairperson + 2 Deputy Chairpersons of the NCoP.
• NCoP has the power to make its own internal arrangements and procedures.
• NCoP is also required to establish committees to oversee its work → done i.t.o. its rules.
• Given that NCoP is composed of a single delegation from each province, each province
usually only has one vote which must be cast on behalf of the province by the head of
each delegation.
• = majority is achieved when five delegations support a decision.
• However, when the NCoP has to pass legislation not affecting the provinces, each
delegate in the NCoP has one vote and a majority of votes of delegates is required to pass
a Bill.
• The NCoP may not be dissolved. In principle, it is a perpetual body without a fixed term.
• The tenure of the members of the NCoP is far less secure → terms of the permanent
delegates are linked to the provincial legislature they represent, and they may be
recalled.
• The position of special delegates is even less secure, because they are appointed from
time to time → they will generally serve for short periods of time.

6 FUNCTIONS OF PARLIAMENT

6.1 INTRODUCTION
• The Constitution bestows a number of functions Parliament → the two most important
functions are the passing of national legislation and to serve as a national forum for
public debate.
• Apart from these two functions, the Constitution bestows additional functions
specifically to the NA, in order to enable it to fulfil its special role as a check on the
executive authority.
• Two Houses of Parliament can be said to fulfil four main functions:
i. Provide a forum for debate on important issues.
ii. Hold the executive organs of state in the national sphere of government
accountable to Parliament.
iii. Exercise an oversight function over the exercise of national authority and over
other organs of state.
iv. Pass national legislation.

• These functions are discussed below.

6.2 NATIONAL FORUM FOR PUBLIC CONSIDERATION OF ISSUES

• = Parliament’s most NB function is to provide a national forum for debates + public
considerations of issues.
• Two ways this role is fulfilled:

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i. Parliament is required to conduct their business in an open and transparent

manner.
ii. Parliament is required to give ordinary people access + opportunity to present
their views on issued considered by Parliament.

• Parliament also fulfils this task by providing a platform for political parties to debate and
delivery speeches.
• = can also direct questions to the President about policy questions/matters of political
importance.
• The Rules of the NA provide various mechanisms to achieve these goals:
o Rules of NA → member of NA may propose a subject for discussion, draft a
resolution for approval as a resolution of the House + an MP may request the
Speaker in writing to schedule an urgent matter for discussion.
o Rules of NCoP → a delegate may request the Chairperson of the NCoP to allow a
matter of public importance to be discussed by the Council (if it affects the
provinces.)

6.3 HOLDING THE EXECUTIVE ACCOUNTABLE TO PARLIAMENT

• Members of Cabinet are accountable to Parliament and must report to it regularly.
• CC has held that the power to hold the President and executive accountable is binding →
Parliament is duty-bound to it.
• The fact that the NA has a constitutional obligation to hold the executive accountable
means that a court can order them to fulfil this obligation if they fail to do so.
• This power to hold the executive accountable entails two aspects:
1. Entails the powers of Parliament to call members of the executive and the public
administration to account for their activities.
2. Accountability will arguably not be effective if it does not include the power of
Parliament to take remedial action and even to dismiss members of the executive
who fail to account properly for their actions.

• As far as the second aspect is concerned, the NA has distinct powers to ensure
democratic control over the executive.

S 102(2) → motion of no confidence S 89(1) → impeachment

• Motion will pass if its supported by the • Allows NA to impeach the President by
majority. adopting such resolution with a
• In this event, the President, Cabinet, and supporting vote of at least two thirds.
Deputy Ministers must resign. • On the grounds of a serious violation of
• = political power, and can be effected for the Constitution or law, serious
purely political reasons. misconduct or inability to perform the
• No parties in the NA are constitutionally functions of office.
allowed to block the tabling, discussion or • This is not a purely political power.
voting on a motion.

• S 55(2) of the Constitution → NA needs to have mechanisms in place to hold the

executive accountable to Parliament.

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6.4 MAINTAINING OVERSIGHT OF THE NATIONAL EXECUTIVE AUTHORITY AND OTHER

ORGANS OF STATE
• “Oversight” requires the NA to oversee the day-to-day exercise of authority by the
executive and to oversee the actions of other organs of state.
• Includes overseeing the implementation of legislation.
• “Organs of state” → broadly defined in S 239.
• = Parliament is this entitled to oversee the work of more than 1000 organs of state,
however this does not include oversight over the judiciary.
• Parliament conducts oversight of these organs of state through the various
parliamentary committees, as well as the portfolio committees.
• The more independent and politically powerful the members of the committees are,
the more meticulous the NA’s oversight will be.
• Committees have the power to investigate and make recommendations on any matter
relating to government departments, including budgets, function, policy formulation,
etc.
• Oversight role of the NCoP is more defined.
o = it must review the intervention of the national executive in a province + the
provincial executive in a municipality.
o = resolves disputes concerning the administrative capacity of a province.
• Both NA + NCoP must approve a decision by the Treasury to stop the transfer of funds
to a province, or a decision by the President to declare a state of national defence.

6.5 PASSING OF LEGISLATION

6.5.1 Introduction
• The notion of cooperative government lies at the heart of the law-making process in
Parliament.
• The procedure for enacting legislations requires institutional cooperation and
communication between national and provincial legislatures, as well as between the
national executive and Parliament.
• This need for cooperation is linked with the fact that the legislative process is based on
the assumption that that provincial interests will be considered in the national law-
making process whenever such interests arise.
• As such, the NCoP plays an important role in institutionalising the principle of
cooperation and communication involving the nine provinces directly in the national
legislative process and other national matters.
• NB → Parliament, as opposed to the nine provincial legislatures, has the power to pass
legislation on any matter, including those not explicitly listed in the Constitution,
unless the Constitution provides otherwise (= S 44 of the Constitution.)
o Schedule 4 → list of concurrent national and provincial powers.
o Schedule 5 → list of exclusive provincial powers.
o = while both Parliament and the provincial legislatures may pass legislation on
subjects listed in Schedule 4, generally, only the provincial legislatures may
pass legislation on the subject listed in Schedule 5.
o In limited circumstances, Parliament may also pass legislation on Schedule 5
matters → S 44(2).

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• Given that both Parliament and the provincial legislatures may pass legislation on the
subjects listed in Schedule 4, a conflict may arise between them, in which case S 146
of the Constitution provides that the provincial legislation will prevail over the national
legislation unless one of the criteria listed in S 146 is present.
• S 73(2) allows any individual NA member to introduce a Bill1 in the NA, even if they are
not a Cabinet Minister or belong to an opposition party.
• However, most Bills are still initiated and introduced by Cabinet Ministers who are
tasked with leading the legislative agenda of the elected government of the day.
• Ordinary members of the NA from the majority party usually defer to the legislative
agenda set by Cabinet.
o = this means a member of the executive, an individual Cabinet Minister, usually
initiates legislation dealing with issues related to their portfolio before a Bill is
introduced and adopted by Parliament.

• There are important structural and contextual reasons why legislation is usually
initiated and prepared by the responsible Cabinet member and not by individual
members of the NA or by a committee of the NA:
o RSA has been a one-party dominant political system since 1994, and many
leaders of the dominant party serve in Cabinet which initiates legislation in
accordance with the mandate of the majority party.
o Members of the NA are elected via the party proportional representation system
and depend on their party’s support to retain their seats, making it unlikely that
members of the majority party will take an initiative not approved by party
leadership.
o The current governing party, the ANC, is a highly centralised organisation where
power has become increasingly concentrated in the hands of the President and
party leadership.
o The Speaker plays an important role in deciding which Bills are introduced and
the Speaker is a member of the majority party in the NA.
o The political culture of the governing ANC is one in which the internal debate
flourishes but once decision is taken, ordinary members tend to defer the
leadership who serve in Cabinet.

• Apart from these contextual reasons, there is also a practical reason for the dominance
of the executive in the preparation and introduction of legislation.
• Legislation is usually introduced to give legislative effect to the political programme of
action of the majority party which forms the government. In theory, voters endorse this
programme in an election. The party then has a democratic mandate to implement
policies for which it was elected as the governing party.

6.5.2 Process of law-making

• Normally, the process of law-making is initiated by the executive.
• The process is as follows:

1
Bill → the request submitted to Parliament for the approval of particular legislation in relation to a
particular matter.

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o Policy is formulated via various channels, through internal party discussions and
Cabinet discussions which finally results in a draft Bill, which is eventually
approved by Cabinet.
o The Cabinet Minister responsible for the policy in question usually first introduces
the Bill in the NA, sometimes the NCoP. This is referred to as the first reading.
o The Bill is then referred to the appropriate portfolio committee for review and
amendment after facilitation of public involvement. This is considered the
second reading, and the Bill is considered ready for passing.
o If the NA passes the Bill, it is forwarded to the upper House, the NCoP, for its
assent. If the Bill was introduced in the NCoP and approved there, it is forwarded
to the NA for its assent.

• Once both Houses have passed the Bill, it is presented to the President for signature.
• The President does not have a general right to veto Bills duly passed by Parliament but
may refuse to sign the Bill if he has reservations about its constitutionality → in this case,
he must refer the Bill back to the NA for reconsideration.
• The Constitution distinguishes between four categories of Bills and prescribes a different
procedure for each category:
o Bills amending the Constitution.
o Ordinary Bills not affecting the provinces.
o Ordinary Bills affecting the provinces.
o Money Bills.

• NB to tag Bills before they are introduced to Parliament, due to the different procedures
prescribed for each category.
• Purpose of tagging also includes to determine the nature and extent of the input of the
provinces, through the NCoP, on the contents of the legislation affecting them.

6.5.3 Section 74 Bills (Bills amending the Constitution)

• S 74 Bills require special procedures to be adhered to.
• Special majorities are also required to pass the Bill to protect the Constitution from being
amended too easily.
• S 1 of the Constitution can only be changed with the support of 75% of the members of
the NA, and 6/9 provincial delegations to the NCoP.
• Bill of Right amendments = 2/3rds majority in NA, 6/9 NCoP.
• Any other provision of the Constitution may be amended by a Bill passed by the NA with
a supporting vote of at least 2/3rds of its members. The support of six of the provincial
delegations is not required for these ordinary amendments unless the proposed
amendment relates to a matter that affects the NCoP, alters provincial boundaries,
powers, functions or institutions, or amends a provision that deals specifically with a
provincial matter.
• To protect the powers and functions of individual provinces in the case of a Bill that
concerns only a specific province(s), the NCoP may not pass the Bill unless it has been
approved by the legislature(s) of the province(s) concerned.

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6.5.4 Section 75 Bills (ordinary Bills that do not affect the provinces)
• When a Bill is tagged as a S 75 Bill, it can ONLY be introduced in the NA, and not the NCoP.
• Once the Bill is passed by the NA, the NCoP must vote on the Bill.
o In this case, members of the NCoP do not vote by delegation.
o Instead, i.t.o. S 75(2) of the Constitution, each delegate in a provincial delegation
has one vote and the question is decided by a majority of votes cast subject to a
quorum of one third of the delegates being present.

• The NCoP can pass the Bill, or pass the Bill subject to proposed amendments, or reject
the Bill.
o If they pass the Bill without proposing amendments, the Bill must be submitted
to the President for assent.
o If they reject the Bill or pass it subject to amendments proposed by it, the NA must
reconsider the Bill, taking into account any amendment proposed.
o Because it’s a S 75 Bill that does not affect the provinces, the NA has the power
to override the NCoP amendments by passing the original Bill.
o However, the NA may decide to endorse the amendments made by the NCoP by
passing the same version passed by the NCoP. In this case, the Bill with the NCoP
amendments will be sent to President.
o Alternatively, the NA may decide to not proceed with the Bill at all, in which case
it will lapse.

• When considering these procedures, it is NB to note the differences between the

legislative processes being followed when a Bill is tagged as a S 75 Bill / a S 76 Bill, as well
as the powerful role of the NA in the passing a S 75 Bill.
o Most NB difference, is that a S 75 Bill can in effect be passed by the NA without
the support of the NCoP.

6.5.5 Section 76 Bills (ordinary Bills affecting the provinces)

• A Bill will be tagged this way if it falls within a functional area listed in Schedule 4 of the
Constitution or provides for legislation envisaged in particular sections of the
Constitution.
o = will also be tagged as a S 76 Bill if it purports to intervene in Schedule 5 matters
(i.t.o. S 44(2)) and other financial matters affecting the provinces.
o A Bill dealing with the seat of Parliament must be similarly tagged.

• Tagging a Bill as a S 76 Bill is important because this gives more weight to the position of
the NCoP in the passing of a Bill.
• Unlike a S 75 Bill, a S 76 Bill can be introduced in either the NA or NCoP.
• Once a Bill is passed in the House it was introduced in, it must be sent to the other House
to accept, amend or reject,
• If the second House passes the Bill without any amendments, it must be sent to the
President for assent.
• If the second House passes the Bill with amendments, it must be referred back to the first
House. If that House passes the amended Bill, it must be sent to the President for assent.

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• However, if the second House rejects the Bill, or if the first House refuses to pass an
amended Bill referred back to it, the Bill and the amended Bill where applicable, must be
referred to a Mediation Committee.

THE MEDIATION COMMITTEE

• Designed as a mechanism to try to reconcile differences between the two Houses of

Parliament in line with the principle of cooperative government.
• It consists of:
o Nine members of the NA, elected by the NA.
o Nine delegates, one from each provincial delegation in the NCoP.

• The Mediation Committee (“MC”) can only make a decision if at least give of the
representatives of each House agree to support it.
• The MC can agree to support the as passed by the NA, the amended Bill as passed by the
NCoP, or its own version of the Bill.
o If the Mediation Committee is unable to agree on any of these options within 30
days of the Bill’s referral to it, the Bill will lapse unless the Bill was first passed by
the NA and the NA again passes the original Bill, but with a supporting vote of at
least two thirds of its members.
o This means that it is important whether the Bill was first introduced in the NA or
the NCOP.
o Bills first introduced in the NCOP cannot ever be passed over the objections of
the NCOP with a two-thirds majority in the NA as would be the case if a Bill was
first introduced and passed in the NA.
o If the Mediation Committee approves a version of the Bill first passed by the NA,
it must be referred to the NCOP for approval. If it approves a version of the Bill first
passed by the NCOP, it must be referred to the NA for approval.
o However, if the Mediation Committee agrees on its own version of the Bill, that
version of the Bill must be referred to both the NA and the NCOP.
o If it is passed a second time by the NA and/or the NCOP in accordance with the
procedure set out above, it must be submitted to the President for assent.
o Once again, the NA has an override power if it supports a Bill with a two-thirds
majority in the event that the Bill was introduced in the NA and the NCOP has not
supported the decision of the Mediation Committee.
o The NCOP does not have the same override power. In practice, it would be
unlikely that the NA would be able to achieve a two-thirds majority to override the
opposition of such a Bill in the NCOP.
o This means that as far as section 76 Bills are concerned, the NCOP is in a far more
powerful position to influence or even block legislation supported by the NA than
is the case with section 75 Bills. This is because the NCOP represents the interest
of the provinces in the national Parliament.

• These rather complicated mechanisms are aimed at facilitating co-operation and

seeking consensus between the two Houses of Parliament in line with the principle of co-
operative government.
• They also ensure that the NA, with its 400 members representing the various political
parties proportionally to their electoral strength, would not be able to ride roughshod over

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the NCOP whose delegates are equally divided between all provinces. In essence, this
means that provincial delegations with fewer voters have the same power as provincial
delegations of large provinces.

6.5.6 Section 77 (money Bills)

• These Bills deal with the imposition of taxes, levies, duties and surcharges to raise money
for the state and with the allocation of the money raised in this way for a particular
purpose, such as spending it on education, policing or health care.
• The most important money Bill is the annual budget introduced by the Minister of Finance
in the NA. Such a Bill will then be passed in accordance with the procedure laid down in
section 75, as discussed above.
• However, special procedures apply to the amendment of a money Bill by Parliament. As
the Constitution stipulates, these procedures are set down in the Money Bills
Amendment Procedure and Related Matters Act.
• The special procedures are necessary because the budget is a highly technical and
complex Bill prepared in conjunction with the technical experts of the Treasury and it
could create financial uncertainty and unintended consequences if Parliament were
allowed to amend the budget in the same way as it is allowed to amend other pieces of
legislation.
• Once a Bill has been passed in the prescribed manner, either in terms of sections 74, 75,
76 or 77, the Bill must be sent to the President for his or her assent as envisaged in section
79 of the Constitution.
• In terms of section 79(1) of the Constitution, the President may refer a Bill back to the NA
for reconsideration if he or she has reservations about its constitutionality.
o If the President has reservations about the constitutionality of the Bill, he or she
must specify what these reservations are when he or she refers a Bill back to
Parliament.
o The President does not have a general power to veto a Bill duly passed by
Parliament because he or she does not agree politically with any provisions in the
Bill or because his or her conscience would require him or her not to sign the Bill
into law.
o As all constitutional obligations must be performed diligently and without delay,
the President is required to sign a Bill duly passed by Parliament within a
reasonable time.
o If the President refers the Bill back to Parliament owing to concerns about its
constitutionality, Parliament can address the President’s concerns.
o If the reconsidered Bill fully accommodates the President’s reservations, then he
or she must sign it.
o If not, the President may, pursuant to section 79(4) of the Constitution, refer the
Bill to the Constitutional Court for a decision on its constitutionality.
o The President is empowered to refer a matter to the Constitutional Court in terms
of section 79 only if his or her reservations concerning the constitutionality of the
Bill are not fully accommodated by Parliament.
o If the President has no reservations concerning the constitutionality of the Bill, or
if his reservations have been fully accommodated by Parliament, the referral
would be incompetent.

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o If the Constitutional Court decides that the Bill is constitutional, the President
must assent to and sign it as envisaged in section 79(5).

Prescribed case law: Passing of legislation

Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill
Legal question:
The legal question in this case is whether the Liquor Bill, which establishes a framework for the
registration of the manufacture, wholesale distribution, and retail sale of liquor, is
constitutional. Specifically, the question is whether the Bill is necessary to maintain economic
unity and essential national standards in the liquor trade and industry, as required by Part A of
Schedule 5 of the Constitution.

Facts of the case:

The Liquor Bill was introduced in the National Assembly on 31 August 1998 and passed through
various legislative stages before being approved by Parliament on 2 November 1998. When the
Bill was sent to the President for his assent, he declined to grant it and instead referred it back
to the National Assembly for reconsideration of its constitutionality. The National Assembly
resolved to return the Bill to the President, who then referred it to the Constitutional Court for
a decision on its constitutionality.

Ratio decidendi:
The Constitutional Court held that the Liquor Bill was constitutional and that it was necessary
to maintain economic unity and essential national standards in the liquor trade and industry.
The Court found that the Bill was intended to address the economic and social costs of
excessive alcohol consumption and to facilitate the entry and empowerment of new entrants
into the liquor trade. The Court also noted that the Bill was intended to regulate the
manufacture, distribution, and sale of liquor on a uniform basis and to maintain economic
unity and essential national standards in the liquor trade and industry.

The Court further held that the Bill did not infringe on the exclusive provincial legislative
competence in respect of liquor licences, as it did not seek to establish a system of liquor
licences but rather a framework for the registration of the manufacture, wholesale distribution,
and retail sale of liquor. The Court also noted that the Bill did not prevent provinces from
enacting their own legislation in respect of liquor licences, as long as such legislation did not
conflict with the provisions of the Bill. In conclusion, the Constitutional Court held that the
Liquor Bill was constitutional and that it was necessary to maintain economic unity and
essential national standards in the liquor trade and industry. The Court found that the Bill did
not infringe on the exclusive provincial legislative competence in respect of liquor licences and
that it did not prevent provinces from enacting their own legislation in respect of liquor
licences, as long as such legislation did not conflict with the provisions of the Bill.

Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly

Legal question:
Does the National Assembly have the power to regulate its business in a manner that may deny
its members the opportunity of introducing a Bill in the Assembly, in terms of section 73(2) of
the Constitution?

Facts of the case:

The applicant, Mario Gaspare Oriani-Ambrosini, MP, challenged the constitutional validity of
the Rules of the National Assembly that require a member of the Assembly to secure

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"permission" from it before she may "introduce" a Bill in terms of section 73(2). The applicant
sought relief to have the refusal by the Speaker of the National Assembly to introduce his
proposed National Credit Act Amendment Bill reviewed and set aside, and an order directing
the Speaker to have the applicant’s Bill introduced in the Assembly.

Ratio decidendi:
The Constitutional Court held that the Rules of the National Assembly that require a member
to obtain permission from the Assembly to introduce a Bill are inconsistent with the
Constitution, as they prevent members from exercising their constitutional power to introduce
Bills in the Assembly. The Court declared Rules 234, 235, 235A, and 236 invalid and severed
them from the Rules of the National Assembly. The Court also severed specific words in Rules
230(1), 230(2), 237(1), and 243(3) that were inconsistent with the Constitution.

Tongoane v National Minister for Agriculture and Land Affairs

Facts of the case:
• The CLARA Act was challenged on the basis that the incorrect legislative procedure
was followed.
• The Act was passed under S 75 (ordinary national legislation), and the applicants
argued that it should have been passed under S 76 (legislation affecting provinces.)
• CLARA Act aimed at to regulate land tenure in communal areas.

Conclusion of the Court:

• The Court held that CLARA was incorrectly passed under S 75, as it had substantial
impact on land rights in the provinces, especially rural areas where land is held
communally.
• Thus, it had to be passed though S 76, including the full public participation and
provincial consultation process.
• The judgement underscores that procedural compliance is essential to constitutional
validity.

Executive Council of the Western Cape Legislature v President of the Republic of South
Africa
Legal question:
Did the President act unconstitutionally by signing a Bill ito law without the Bill being passed
by both Houses of Parliament in the correct manner, where it affects provincial interests?

Process of passing legislation:

• The Interim Constitution required that if a Bill affected the provinces, it must be passed
by both Houses of Parliament.
• The Act in question was only passed by the NA, despite it clearly affecting public service
in the provinces.
• The CC emphasised that procedural compliance in law-making is essential – the
legislature must follow constitutional protocols.
• The President had no discretion to ignore this. Signing a Bill that was not properly
passed, violates SOP and the rule of law.
• The Court rejected the arguments that the judiciary cannot interfere with Parliamentary
processes.
• It held that the courts must uphold the Constitution, and this includes ensuring that
legislation is passed in a constitutional manner.

Conclusion of the Court:

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The Court invalidated the Act because it had not been properly passed in accordance with
constitutional requirements.

6.6 DELEGATION OF LEGISLATIVE POWERS TO EXECUTIVE OR OTHER LEGISLATURES

• S 44(1)(a)(iii) of the Constitution → Parliament may assign its legislative authority, except
the power to amend the Constitution to any legislative body in another sphere of
government.
• = Where Parliament is of the view that a certain issue may be better dealt with by
provincial legislatures, it may therefore explicitly empower such legislatures to enact
legislation on that topic, EVEN IF the topic falls outside the exclusive and concurrent
functional areas in which provincial legislatures have the competence to legislate.
• There are limits to what kind of law-making powers can be delegated and to whom.
• The question in each case would be whether the Constitution permits a delegation of
such law-making power or not.
• The text of the relevant empowering provision of the Constitution must be read in context
and we should consider factors that flow from the nature of the Constitution, its structure
and scheme.
• We must keep in mind that the primary reason for delegation is to ensure that the
legislature is not overwhelmed by the need to determine minor regulatory details.
• Delegation relieves Parliament from dealing with detailed provisions that are often
required for the purpose of implementing and regulating laws and is necessary for
effective law making.
• However, we must draw a distinction between delegation to make subordinate
legislation and assigning plenary legislative powers to another body.
o Parliament may not delegate its plenary legislative power2 to executive authority.
o It may only delegate the power to make subordinate legislation such as
proclamations and regulations.
o Thus, although SOP does not allow one branch of government to exercise a power
exclusively allocated to another branch, it can exercise powers delegated to it by
another branch as long as this power is not exclusively reserved for another
branch of government.

2
The power to make original legislation.

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Study Unit 3: The National Executive

1 INTRODUCTION
• Executive → usually made up of the members (usually leaders) of the majority party in
the NA.
• Executive = the politicians who are elected/appointed to form the government.
• NB to distinguish between the executive, public administration, public service and the
state.
• Government → temporary bearer of state/political authority.
• Public administration → officials who carry out the core business of the government &
who implement the political decisions taken by members of the executive.
• Public service → persons who work for the national and provincial government
departments.
• State → organised political community occupying a certain territory and whose
members live under the authority of a constitution.
• Executive authority is also exercised at the provincial + local sphere of government.
o = in provincial sphere, these structures largely mirror those in the national sphere.
o = each provincial executive consists of a Premier and the Members of the
Executive Council (MECs.)

• When discussing the appointment + dismissal of a President, it must be understood as a

mechanism to give effect to the principle of checks and balances in the SOP system.
• The exercise of powers by members of the executive must also be considered with
reference to the powers of the NA to hold the members of the executive accountable.
• = impossible to study the appointment, powers and the limits placed on the exercise of
powers by members of the executive without having regard to the powers and functions
of Parliament.

2 THE PRESIDENT

2.1 ELECTION, TERM OF OFFICE, AND REMOVAL

• NA elects the President from the members of the NA at its first general sitting (= after a
national election) or whenever there’s a vacancy.
• President then appoints Cabinet → they govern for the electoral term of the NA = usually
5 years.
• Chief Justice determines date and time for election of President.
o If there’s a vacancy = within 30 days of when vacancy occurs.

• President ceases to be a member of NA upon his election.

• Within 5 days, President must assume office by swearing/affirming faithfulness to the
Republic + obedience to the Constitution.

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• President = both head of state + head of the national executive → no longer a leader of
just his political party.
• President can’t serve more than two terms in office = normally 10 years.
o Although if elected to fill a vacancy, that does not constitute a term.

• On paper, the NA is more powerful than the President + Cabinet → since they have the
power to remove him.
o However, President + Cabinet remains the more powerful arm of government
until they lose the support of the majority party in the NA.
o = while President technically reports to + is accountable to Parliament, arguably
Parliament indirectly reports to the President because majority of NA members
are ordinary members of the governing party for which the President is leader.

• Removal of President:
o Impeachment → S 89
o Motion of no confidence → S 102

Removal of president
Impeachment (S 89) Motion of no confidence (S 102)
Grounds for impeachment: • Removal for purely political reasons.
1. Serious violation of the Constitution • Simple majority votes necessary for a
or the law. motion to pass.
2. Serious misconduct. • Reflects parliamentary nature of our
3. Inability to perform the functions of government → President + Cabinet
office. need to retain the support of the
majority members of the NA.
• Resolution can only pass with
supporting vote by 2/3rds majority.
• = if one or more grounds is present, NA
can institute a resolution to the effect
of impeachment.
• NA can’t remove the President from
office i.t.o. s 89 just because he’s lost
the support of the majority party.

Consider:
If members of the majority party in the NA are instructed by party leadership to support a
motion of no confidence, they would probably agree to do so.
= failure to support the motion upon such instruction, could result in their removal from the
NA & their replacement with a member who would obey such an order.

UDM v Speaker of the National Assembly case relevance:

• If there is a conflict between upholding constitutional values and party loyalty, MPs
should uphold constitutional values.
• Although practically, they tend to lean towards party loyalty to protect themselves from
party retribution.

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• UDM case relevance = Speaker of the NA has the discretion to order a motion of no
confidence to take place via secret ballot voting → this could protect individual MPs
who choose not to follow party orders in a specific instance.

Prescribed case law: President’s election, term of office and removal

United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21
Facts of the case:
• The case arose from the demand that a motion of no confidence in President Zuma be
conducted via secret ballot.
• S 102(2) provides that if the NA passes a motion of no confidence in the President by a
simple majority, the President, Cabinet and Deputy Ministers must resign.
• This is a political remedy rooted in accountability, especially when the President loses
the support of the NA.
• The core issue was whether the Speaker had the power to direct that a motion of no
confidence be voted on via secret ballot.

Conclusion of the Court:

• The Court held than nothing in the Constitution prohibits a secret ballot, and that the
Speaker has the discretion to allow it, especially in circumstances where MPs might fear
intimidation or reprisals.
• The Court rejected the notion that it was usurping Parliament’s powers, as the
judiciary’s role is to safeguard the Constitution and ensure constitutional mechanisms
are exercised freely and fairly.
• The decision clarified that free exercise of vote by MPs is essential to democracy, and
that a secret ballot can be a safeguard when the political climate is tense or hostile.

VACANCY IN THE PRESENDITAL OFFICE

• A vacancy will arise when:

o The President is absent from the Republic.
o President is unable to perform his duties, e.g., due to illness.
o President resigns, dies, S 89 or S 102 is employed.

• S 90 → Acting President.
o Usually, the Deputy President will be appointed as Acting President when a
vacancy arises.
o = if this is not possible, the following office bearers will act as President, in the
following order:
▪ A Minister designated by the President.
▪ A Minister designated by the other members of Cabinet.
▪ The Speaker of the NA, until the NA designates one of its other members
as acting President.

• An acting President has all the responsibilities, powers and functions of the President.

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• The acting President must also swear & affirm faithfulness to the Republic and obedience
to the Constitution before assuming the role of Acting President → Schedule 2 of the
Constitution.
o Oath wouldn’t need to be repeated for any subsequent terms of acting President.

2.2 THE PRESIDENT OF HEAD OF STATE AND AS HEAD OF THE EXECUTIVE

• The President is vested with powers that are conferred on him by the Constitution in two
capacities:
o Head of State.
o Head of the national executive.

• Distinction:
o Head of State → President exercises his authority alone.
o Head of the executive → President acts in consultation with Cabinet.

• When a President acts as Head of State, he can’t abdicate the exercise of such power by:
o Unlawfully delegating that power conferred on him as Head of State.
o Acting ‘under dictation’ by merely following the instructions of another without
applying his own mind to the matter.
o ‘Passing the buck’ by referring the decision to someone else.

• Another way we can distinguish between these two capacities is by focusing on the
nature of the powers themselves:
o Head of national executive → if the President is required to exercise a political
discretion on behalf of the government.
o Head of State → if the President is not required to exercise a political discretion
on behalf of the government → President represents all of the people, not only
the government formed by the majority party.

S 84: Head of State S 85: Head of executive

S 84(2) provides a list of powers exercised by S 85(2) provides a list of powers exercised by
the President in his capacity as Head of State. the President in his capacity as head of the
national executive.

Prescribed case law: President as Head of State & Head of the executive
President of the Republic of South Africa v Public Protector
Although the President has sole authority over Head of State powers, the High Court held that
the Public Protector’s remedial powers include the authority to instruct the President to
perform his obligations as Head of State AND ALSO to determine the manner in which the
President should do so in case he suffers from a conflict of interest.

Facts of the case:

• In this case, the President had to appoint a commission of inquiry into state capture,
as well as a judge selected by the Chief Justice as head of the commission (= in his
capacity as Head of State.)

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• In this case, the Public Protector had ordered that the Chief Justice select the person
to chair a Commission of Inquiry into so-called ‘State Capture.’
• = the President was implicated in the State Capture, and subsequently, there could
have been a conflict of interest.

Note:
Given that the CC held that the President cannot ‘abdicate’ the exercise of powers explicitly
bestowed upon him by the Constitution, the HC judgement might not be correct. A better
approach was followed in the Corruption Watch3 case.

Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and
Others; Council for the Advancement of the South African Constitution v President of the
Republic of South Africa and Others
Legal question:
Whether the dismissal of Mr. Nxasana as the National Director of Public Prosecutions and the
decision to appoint Adv. Abrahams as his replacement without the approval of the National
Assembly or the National Executive, contrary to s. s172(1)(a) of the Constitution, were invalid
and must be set aside.

Facts of the case:

The Public Service Act provides that an employee who has been suspended without pay for
misconduct must be charged within 120 days of suspension. In 2015, the National Director of
Public Prosecutions, Mr. Nxasana, was suspended for alleged misconduct. Despite this, Mr.
Nxasana was not charged within the required time frame. The National Executive Committee
then made a decision to replace Mr. Nxasana as the National Director of Public Prosecutions
with Adv. Abrahams. This decision was taken without the approval of the National Assembly,
which is required under s172(1)(a) of the Constitution. The applicants challenged the decision
to dismiss Mr. Nxasana and the appointment of Adv. Abrahams, arguing that it was invalid and
unconstitutional.

Ratio decidendi:
The court held that the decision to dismiss Mr. Nxasana without the approval of the National
Assembly or the National Executive, contrary to s172(1)(a) of the Constitution, was invalid and
must be set aside. The court considered the importance of the principle of operational
autonomy of IPID as an institution. The decision to suspend Mr. Nxasana without pay for
alleged misconduct, followed by his dismissal and replacement without the required
approvals, would expose IPID to the risk of executive or political control, which is inconsistent
with the presumption of innocence until proven guilty or the audi alteram partem rule. The
court rejected the argument that the power to suspend without pay is inherent in the
Constitution, noting that it defies the exceedingly important presumption of innocence until
proven guilty or the audi alteram partem rule. The court further rejected the argument that the
fact of a potential review of the irrational exercise of presidential power was a complete
answer to the constitutionality attack. In conclusion, the court found that the decision to
dismiss Mr. Nxasana and the appointment of Adv. Abrahams were both invalid and must be
set aside. The decision thus demonstrates the importance of compliance with the
Constitution, particularly in relation to the independence of the public prosecution system.
Conflict of the president

3
Full name → “Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and
Others; Council for the Advancement of the South African Constitution v President of the Republic of South
Africa and Others.”

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Issue:
The President, facing criminal charges, is tasked with appointing the National Director of
Public Prosecutions (NDPP), raising concerns about conflicts of interest.

Solution:
• According to Section 96(2)(b) of the Constitution, cabinet members, including the
President, cannot act in a way that conflicts with their office. Thus, if conflicted, the
President cannot legally make the appointment.
• Section 90 of the Constitution designates the Deputy President to act as President
when the President is unable to fulfil their duties due to absence or conflict. This
provision clarifies who should act when the President is conflicted.
• Even if the President were to argue that the appointment falls under his role as head of
the national executive, Section 96(2)(b) still bars him from acting when conflicted.
• President Zuma's conflict of interest is apparent, especially considering his intention
to resist prosecution, and allowing him to appoint the NDPP would compromise the
fairness and integrity of the process.

Law Society of South Africa and Others v President of the Republic of South Africa and
Others
Facts of the case:
This case draws a distinction between the roles, responsibilities and constitutional obligations
between the President’s role as Head of State, and head of the national executive.

Head of State → S 83 of the Constitution

• The President, as HoS, symbolises the unity of the nation.
• The role is largely ceremonial but includes important formal functions like signing
international agreements and receiving ambassadors.
• The President must uphold, defend and respect the Constitution as the supreme law
of the Republic.

Head of the national executive → S 85 of the Constitution

• President is the central authority in executing national legislation and developing
policy.
• He exercised executive authority in consultation with Cabinet, including implementing
national legislation, developing policy, coordinating functions of state departments
and preparing and initiating legislation.

Key issue:
The matter concerned whether the President could unilaterally withdraw South Africa from the
Rome Statute of the International Criminal Court (ICC) without Parliament's approval. The
Court scrutinized whether this decision fell under his Head of State or Executive function. It
concluded that:
• Withdrawing from an international agreement implicates domestic legal obligations
and is not purely an executive act.
• Since the Rome Statute was ratified by an Act of Parliament, withdrawing from it
impacts national legislation and thus requires Parliamentary approval.

Conclusion:
• The President’s powers are not absolute—they are bounded by the Constitution.

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• Even when acting as Head of the Executive, the President must act within
constitutional parameters and with appropriate consultation, especially when
domestic law is affected.
• The separation of powers and checks and balances require that Parliament must be
involved in processes that alter the legal obligations of the state.
• This case confirms that the President cannot act unilaterally in matters that affect
Parliament-enacted law. Whether acting as Head of State or Head of the Executive, the
President’s powers must be exercised in line with constitutional principles,
particularly accountability, legality, and separation of powers.

• The role, powers, and administrative functions of the President have increased since
1994.
• The national Parliament is relatively weak due to the effects of the electoral system and
strict party discipline.
• Additionally, so far, the President has always been the leader of the dominant party in
Parliament.
• = inevitable that the powers of the President & executive increase as they are mandated
to give effect to the policies and programmes of the political party elected by vast majority
of South Africans.
• As the powers of the Office of the President increase and as the electoral dominance of
the majority party is extended, it is inevitable that the courts will be required to intervene
and to check the exercise of power of the President and other members of the executive,
where they overstep their constitutionally granted authority.

2.3 THE LIMITS ON THE EXERCISE OF PRESIDENTIAL POWER

2.3.1 Formal limitations of the exercise of Presidential power
• Examples of formal limits:
1. President has no discretion in appointing judges of the High Court; he must listen to
the recommendations of the JSC.
2. He must also listen to the recommendations of the NA when appointing the Chapter
9 institutions.4
3. In some cases, President can only appoint qualified, fit and proper people, e.g., the
head of the National Prosecuting Authority.
4. President must consult with the JSC and heads of opposition parties in the NA before
appointing the Chief Justice and Deputy Chief Justice.
5. He must consult with JSC before appointing President & Deputy-President of the SCA.

• President must be lawful and rational in exercising his executive powers. Failure to
adhere to these requirements would render the appointments unlawful.
• Additionally, a decision by the President must be in writing if it’s taken i.t.o.
legislation/has legal consequences.

4
Public Protector, Auditor General, Human Rights Commission, Commission for Gender Equality,
Electoral Commission.

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• Another Cabinet member must countersign a written decision by the President, if it

concerns a function assigned to them, e.g., if the President wants to appoint
ambassadors, it must be countersigned by the Minister of International Relations.

2.3.2 Substantive limits on the exercise of Presidential Power

• Aside from formal limits, the Constitution also places substantive limits on the exercise
of power by the President.
• Courts can review the exercise of power by the President and set aside any decision by
the President on certain substantive grounds → conclusion necessarily flows from the
fact that the Constitution is supreme and that the rule of law5 is a founding value of the
Constitution.
• = exercise of Presidential power must not infringe any provision of the Bill of Rights +
President must act in good faith & not misconstrue his powers.
• These constraints would have no force and effect if they could not be enforced by the
courts.
• This inevitably raises questions on the SOP doctrine & to what extent judicial officers
should intervene in decisions taken by the President.
o On the one hand, the courts have the duty to enforce the provisions of the
Constitution.
o On the other hand, the courts must respect the fact the decisions of the President
+ executive often contain a political component with which the courts should be
slow to interfere.
o = generally contended that the more directly political the discretion is that the
President exercises, the more hesitant the courts will be to interfere.

• Many of these constraints also apply to other members of the executive who exercise
public power.
• = the discussion below must be seen in a broader context, as many of the principles also
apply to other members of Cabinet or to provincial Premiers and MECs.
• Three ways the Constitution substantively restricts the exercise of power:
1. The exercise of power is subject to the provisions contained in the Bill of Rights.
2. The exercise of power must be duly authorised by the Constitution or some other
constitutionally valid law.
3. When exercising any duly authorised power, the President has to act rationally.

[Link] Bill of Rights requirement

• When the President exercises any power, he is constitutionally bound by the provisions
of the Bill of Rights and may not act, or fail to act, in a manner that would impermissibly
infringe on one or more of the rights protected in the Constitution.
• However, as the Constitutional Court has pointed out, it may well be that, because of the
nature of the power or the manner in which it is exercised, the provisions of the Bill of
Rights would provide no ground for an effective review of a presidential exercise of such
a power.

5
Rule of law → Principle that the law applies equally to all people, that laws must be clear, public, and
fairly enforced, and that the rights of individuals are protected by the law.

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o Court CAN still review any exercise of power against the Bill of Rights (it has the
power to do so in each and every case).
o However, it may often not lead to an invalidation of the President’s action,
because the Court could find than a specific right cannot be effectively applied to
test the President’s exercise of power.

• Courts have consistently asserted the principle that all decisions by the President is
reviewable.
o = if not on the basis that the decision contravenes provisions of the Bill of Rights,
then on other grounds that flow from the fact that the Constitution is supreme
and that one of the founding values of the constitutional dispensation is respect
for the rule of law.

• The answer to the question of whether the exercise of power by the President in a
particular case could be tested against the provisions for the Bill of Rights will be
determined with reference to the nature of the power exercised and the context in which
it is exercised.
• Where the President exercised a discretion in an individual case, affecting only one
person, and where the power in terms of which the discretion is exercised is a Head of
State power or a power as head of the executive, it would be difficult to challenge that
decision on the basis that it infringed one of the rights in the Bill of Rights.
• However, where the President exercises a general discretion affecting large numbers of
people, the situation may well be different.

[Link] Authorised by the Constitution requirement

• Whenever the President exercises his power, this power must be sourced from the
Constitution or legislation, or must be implicitly derived from it.
• When the President is authorised by an Act of Parliament to exercise a power, that
authorisation is required to be constitutionally valid.
• Parliament cannot delegate a power to the President if that delegation of legislative
authority itself is not authorised by the Constitution.
• = This is because the authority of Parliament to make laws, and subsequently to delegate
that function, is subject to the Constitution.
• Thus, Parliament cannot delegate to the President unrestricted power to amend
legislation unless it is absolutely necessary, e.g., in times of war or other exceptional
situations.
• = NB, because otherwise one would allow control over legislation to pass from
Parliament to the executive. This could then be used to introduce contentious provisions
in an Act, would undermine Parliament, and would breach the SOP.

[Link] Rationality requirement

• Most NB requirement → President has to act rationally.
• = requirement stems from the principle that when the President exercises power, he is
constrained by the principle of legality in the sense that he is required to act rationally
and in good faith.

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• = actions that fail to pass this threshold is subsequently inconsistent with the
requirements of our Constitution, and therefore unlawful.
• The rationality test must be distinguished from the test for reasonableness.
o Reasonableness standard → was the decision one that a reasonable decision-
maker could not reach?
o Rationality requires something different.

• Rationality standard = usually easy for the President to meet.

• Where the courts test the actions of the President for rationality, they cannot substitute
their opinions as to what is appropriate for the opinions of the President.
• They also cannot an action of the President invalid merely because they disagree with the
decision.
• = as long as the purpose the President seeks to achieve by the exercise of the public
power is within his authority, and as long as his decision is objectively rational, a court
cannot interfere with the decision simply because it disagrees with it or considers that
the power was exercised inappropriately.

So, a quick summary of the rationality requirement:

1. The decision must be rational.
2. The process used to arrive to the decision must be rational.
3. The exercise of power must be within the President’s authority.
4. There must be a rational relationship between the purpose the President seeks to achieve,
and the manner in which the President exercised power to achieve that purpose.
5. The President has a wide discretion in selecting the means to achieve this objective.
6. Courts can’t interfere with the means selected just because they disagree, don’t like it, or
because there are more appropriate means that the President could have selected.
7. Courts can set aside a decision if the President were to abuse the power vested in him.

• Although the exercise of power by the President is thus always in principle reviewable by
the courts, at least two caveats must be raised:
1. When taking the President to court, it would be NB to avoid imprecise and open-
ended citing of the President in litigation. When asking a court to declare the conduct
of the President unconstitutional, it is necessary to indicate precisely which conduct
is attributable to the President and falls foul of the Constitution.
2. When a court is required to review the exercise of power by the President, they
typically won’t require the President to give oral evidence in person, based on two
considerations:
i. Courts are obliged to ensure that the status, dignity and efficiency of the
Office of President should be protected.
ii. However, the administration of justice cannot and should not be impeded by
a court’s desire to ensure that the dignity of the President is safeguarded.

Prescribed case law: Limits on the exercise of presidential power

Albutt v Centre for the Study of Violence and Reconciliation and Others

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“[51] The Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not interfere with the
means selected simply because they do not like them, or because there are
other more appropriate means that could have been selected. But, where the
decision is challenged on the grounds of rationality, courts are obliged to
examine the means selected to determine whether they are rationally related
to the objective sought to be achieved. What must be stressed is that the
purpose of the enquiry is to determine not whether there are other means that
could have been used, but whether the means selected are rationally related
to the objective sought to be achieved. And if objectively speaking they are not,
they fall short of the standard demanded by the Constitution.”

Constitutional Court affirmed the principle that to determine whether there is a rational
connection between a legitimate purpose and the decision of the President, both the process
by which the decision is made, and the decision itself must be rational.

Court’s findings:
• Where the purpose of the exercise of the President’s power to pardon is to seek or
achieve reconciliation, the means used to achieve this legitimate purpose will not be
rationally related to the purpose if the procedure by which the decision was taken did
not provide an opportunity for victims or their family members to be heard.

Democratic Alliance v President of South Africa and Others

“[32] … rationality review is really concerned with the evaluation of a
relationship between means and ends: the relationship, connection or link (as
it is variously referred to) between the means employed to achieve a particular
purpose on the one hand and the purpose or end itself. The aim of the
evaluation of the relationship is not to determine whether some means will
achieve the purpose better than others but only whether the means employed
are rationally related to the purpose for which the power was conferred. Once
there is a rational relationship, an executive decision of the kind with which we
are here concerned is constitutional.”

Constitutional Court further elaborates on the principle requiring both a rational decision and
a rational process.

Court’s findings:
• The Court found that the purpose of appointing a National Director of Public
Prosecutions (NDPP) was closely linked to the fact that the President was required to
appoint a conscientious person of integrity to that post and that dishonesty was
incompatible with this goal.
• Given the need for a rational relationship between this purpose and the process used,
the President should have initiated a further investigation for the purpose of
determining whether the real and important questions which had been raised about
the President’s selected appointee to the post of NDPP rendered the appointment
inappropriate.
• Where the President has ignored adverse findings as to the honesty of the appointee
made by another body, there was no rational process followed.

Masetlha v President of the Republic of South Africa and Another

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Facts of the case:

Billy Masetlha, the Director-General of the NIA, was dismissed by President Thabo Mbeki
following a breakdown of trust between them. Masethla challenged the dismissal, arguing it
was unlawful, irrational, and in violation of his constitutional rights, specifically procedural
fairness and administrative justice under PAJA (Promotion of Administrative Justice Act.)

Legal question:
Was the President’s decision to dismiss Masetlha subject to constitutional limits?

Ratio decidendi:
• The President acted under S 85(2)(e) of the Constitution: the power to perform any
other executive function provided for in the Constitution or in national legislation.
• The dismissal was an executive action, not administrative, so it did not trigger PAJA,
meaning no duty to give reasons or follow a formal process.
• However, even executive actions are subject to constitutional control under the
principle of legality.
• The President’s action must be lawful, rational and not arbitrary.
• The Court held that trust is a foundational requirement in Intelligence work. Once that
was lost, the dismissal was rationally connected to the purpose of the power.

Conclusion of the Court:

• The court upheld the President’s decision to dismiss Masetlha, because it was a lawful
and rational exercise of executive power.
• Where a matter involves a purely executive discretion, the courts will only interfere if
there is illegality or irrationality.

3 THE DEPUTY PRESIDENT AND THE REST OF THE CABINET

3.1 APPOINTMENT AND REMOVAL

• Cabinet consists of the President, Deputy President and other Cabinet Ministers.
• The President appoints and may also dismiss the DP + other members of Cabinet.
• DP must be appointed from the members of the NA.
• All but two members of Cabinet must also be appointed from the NA.
• This requirement, that all but two members of Cabinet must simultaneously serve as
members of the NA, affirms the principle of parliamentary government.
• In theory, it ensures that the executive is more directly accountable to the electorate
because it allows the democratically elected NA to control the conduct of the executive.
• This overlap in personnel provides an important mechanism by which the legislature is
able to check the exercise of power by the executive → this is emphasised by S 92(2) of
the Constitution.
o “Members of the Cabinet are accountable collectively and individually to
Parliament for the exercise of their powers and the performance of their
functions.”

• The President or the NA can remove the DP and the other members of Cabinet from office.

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o S 91(2) → President can dismiss the DP/members of Cabinet.

o S 102 → motion of no confidence.

• The power of the President to dismiss members of his Cabinet is inherently political and
will usually be exercised after consultation with the leadership of the majority party
(although this is not a constitutional requirement.)
• I.t.o. S 102(1), the NA can pass a vote of no confidence with a simple majority vote in
Cabinet.
o This excludes the President.
o If the motion passes, the President must reconstitute the Cabinet.
o Implication is that the NA can force the President to fire the Cabinet Minister or
Ministers in whom it has lost confidence.
o This is a distinction from a motion i.t.o. S 102(2) which would require the President
and Cabinet to resign.

3.2 POWERS OF THE DEPUTY PRESIDENT AND CABINET

• As a general rule, the Constitution does not confer any specific powers/functions on the
DP/Cabinet.
o S 91(2) → President assigns functions to the DP + Ministers.
o S 91(5) → DP must assist the President in execution of functions of government.

• = specific powers and functions of the DP are determined by the President.

o Important consequence, this means that the DP could either fulfil a mostly
ceremonial role or could emerge as a powerful de facto Prime Minister.

• Some exceptions to the general rule:

o DP has the power to act as President should there be a vacancy in office, or if the
President is unable to perform his duties for whatever reason.
o DP could also perform functions of President, e.g., when the President is
conflicted and therefore unable to perform a specific power.

• President must also assign powers and functions to various Ministers.

o Usual approach → assigns different portfolios to different Ministers + assigning
the administration and implementation of specific pieces of legislation to
individual Ministers.

• Members of Cabinet are individually accountable to the President and to the NA for the
administration of their portfolios.
• They’re collectively and individually accountable to Parliament for the exercise of their
powers and the performance of their functions.
• They are collectively accountable for the performance of the functions of the national
government and for its policies.
o This notion of Cabinet solidarity finds application in two different ways:
i. The Constitution requires Cabinet as a collective to retain the confidence
of the NA, who can pass a motion of no confidence in the Cabinet.
ii. S 85(2) + S 92(2) suggests that Cabinet has a duty to act together as they
are collectively accountable to Parliament for the decisions of Cabinet.

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• S 92(2) also holds Cabinet individually accountable to Parliament → ensures that

Parliament can identify the Cabinet member responsible for a particular issue and hold
them accountable.
• Constitution bestows wide powers on Parliament to hold the individual members of
Cabinet accountable.
• S 92(3)(b) → Cabinet members are compelled to provide Parliament with full and regular
reports concerning matters under their control.
• Individual responsibility entails the following:
i. A duty to explain to Parliament how the powers and duties of under his control
have been exercised and performed.
ii. A duty to acknowledge that a mistake has been made and to promise to rectify
the matter.
iii. A duty to resign if personal responsibility has been accepted.

• Both the individual and collective responsibilities of Cabinet members are reinforced by
S 96 of the Constitution.
o Members of Cabinet + Deputy Ministers must act in accordance with a code of
ethics prescribed by legislation.
o They may not undertake any other paid work, act in a way that is inconsistent with
their office, expose themselves to any situation involving the risk of conflict
between their official responsibilities and their private interests, or enrich
themselves or improperly benefit any other person.

• The other members of Cabinet are constrained in a similar manner to that in which the
President is constrained in the exercise of their duties.
i. They are required to exercise their powers personally.
ii. The exercise of power must not infringe on any provision of the Bill of Rights.
iii. They are constrained by the principle of legality.
iv. They must act in good faith and not misconstrue their true powers.

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